Judges’ vacancies make collegium system suspect

A ruling party can suffer debacle at the polls due to anti-incumbency factors but there’s no recourse for the people who have been aggrieved by the grave injustice done to them due to undue delay in dispensation by the institutionally weak judiciary.

The backlog of undecided court cases keeps piling up but there’s has been a laxity in filling up the posts of subordinate court judges, and one might argue that its also due to the collegium system that vacancies in the Supreme Court and high courts are only going up.

In fact the Supreme Court in 1993 deprived the executive of its power to appoint and transfer judges and bestowed this job on a select panel of senior most judges called ‘collegium’.

There’s only one judgment that describes the authority of collegium and that’s come from the Allahabad high court, the oldest high court which is infamous for high backlog and maximum number of vacancies, 76 or more.

“It’s certainly not the discretion to delay in making recommendations,’’ it said and added the process of appointment must be initiated at least six months before a vacancy arises. It further said the court “must have all the judges in place equal to the number of sanctioned strength at all times, failing which it is not fully constituted.’’
``All the constitutional functionaries involved in the process of appointment have to ensure that the vacancies are filled up, as early as possible,’’ it added.

But the situation remains unchanged. However, there’s been a mounting pressure for having a relook at the collegium pattern of top judicial appointments. With judiciary maintaining a stiff posture for protecting the self-designed mechanism, the government has often talked about evolving an alternative method either by way of a Judges Accountability law or National Judicial Commission or All India Judicial Service.

As government stresses on the need for such enactments to infuse accountability and transparency in the most visibly respected institution among all others, recently retired Chief Justice of India S H Kapadia has expressed apprehension regarding the efficacy of the government maneuvers. ``We need to conduct a detailed study before we tinker with the Constitution,” Justice Kapadia said and warned that  any disturbance in the balance of power among the legislative, executive and judiciary would damage the Constitution for all times to come.

But a multi-member parliament’s committee headed by Shantaram Naik feels that an appraisal of the vacancy position of Judges in both SC and HCs ``is disheartening’’.

It makes also a dent on the judges chosen system saying one major factor affecting this vacancies appear to be the procedure of appointment and the current proactive of the collegium system also raises apprehensions.

The judicial incumbency has been felt by former SC judge and jurist V R Krishna Iyer. "The whole process is almost privatised, personalised and innocent of governmental comments. Persons are chosen, privileged groups get priority, reconsideration is often rejected.’’

He adds:``The collegium has an unscientific methodology and its selection has given rise to much criticism. Therefore, the collegium, as a system, must go.’’

Assuming a law is enacted to perform the onerous job of filling up judicial posts, would it ensure that dispensation isn’t affected due to shortage of manpower?

Perhaps, answer is in the negative given the prevailing scenario in different tribunals, PSUs and expert panels which can be filled up with suitable persons by the government alone. 

It’s time that the government realised the importance of manning all the institutions in time otherwise it would also be blamed for justice dispensation paralysis.