There has been, in recent times, an unusually public conflict between the judiciary and the executive over the shortage of judges in various high courts. Amidst the perception that the situation has reached crisis proportions and is threatening to cripple judicial functioning, it is somewhat disconcerting that as many as 43 names out of a list of 77 recommended for appointment have not found favour with the Centre. It has informed the Supreme Court that these names require reconsideration by the collegium. The Centre contends that it has cleared 34 appointments, and that there is no file pending with it. It appears to have taken the cue from the remarks of the Chief Justice of India, T.S. Thakur, that it is better to send back the names it is not happy with rather than keep the entire list pending. The collegium is now obliged to return to its recommendations and examine the government’s specific objections about the suitability of each candidate. This may further delay the filling up of vacancies, which have been well above the 400-mark at the high court level for some time now. The executive, of course, is bound to make the appointments if the collegium reiterates the recommendations, but it is quite unusual that such a large number of names should be returned. It raises the question whether larger differences between the judiciary and the executive are playing out in this form.
Chief Justice Thakur has been quite vocal and unsparing in his criticism of the delay on the part of the executive in filling up vacancies. In open court as well as in public forums, he has highlighted the grim situation as the judicial branch is grappling with an enormous work burden, on the one hand, and an exploding docket on the other. The executive feels it is being blamed for delays that are not entirely of its making, and contends that high courts have contributed to this situation by letting vacancies lie unattended. Another possible undercurrent is that the Centre is unhappy over the Supreme Court collegium delaying its nod to the revised Memorandum of Procedure for judicial appointments sent on August 3. Despite the obvious difficulties in the task, the judiciary and the government should attempt to forge a quick consensus on the revised procedure and avert the crisis reaching a flashpoint. The Centre should not be seen as delaying appointments or seeking to dilute judicial primacy, while the judiciary should not be seen as stalling improvements in the appointment process. An agreement is vital to institutional reform.
