Judicial vacancies are one of the leading causes for the rising pendency in cases, Law Minister Kiren Rijiju told the Rajya Sabha as he doubled down on his criticism of the collegium system. "The delay in appointment of judges is one of the main reasons for the almost "five crore" pending cases, Rijiju said during Question Hour in the upper house.
The ongoing tiff between the Executive and the Supreme Court has intensified over the last few weeks with both sides exchanging barbs in court and in public.
The government has limited say in filling judicial vacancies. The Centre does not have the authority to look for judges beyond those recommended by the collegium, Rijiju added. The government is doing all it can to tackle pendency, he said, adding that until the procedure for appointments is changed, questions regarding pendency and vacancies will be raised.
"I don't like saying this, but I feel we are unable to work as per the sentiments of the house and the people's will…," Rijiju added. "I don't want to comment on the court too much, otherwise it will come across as government interference," the law minister said.
Rijiju was responding to Congress MP Rajiv Shukla's query on how the government planned to resolve the crisis between the Executive and the judiciary on judicial vacancies.
The judiciary says the government is not clearing its recommendations while the government says the collegium system should be like the now-scrapped National Judicial Appointments Commission (NJAC) where everyone has a say in the recommendation of judges, the Chhattisgarh MP said recapping the dispute.
"Yeh jhagda bhi bahut jabardast chal raha hai," Shukla said.
When the Winter Session commenced on December 7, Vice President Jagdeep Dhankhar said the Supreme Court undid a "historic parliamentary mandate" in October 2016 when it struck down the NJAC. A week later, while hearing a matter on the delay in the appointment of judges, Justice Sanjay Kishan Kaul—the senior most Supreme Court judge after Chief Justice of India (CJI) DY Chandrachud—said NJAC (which replaced the collegium system) did not pass judicial muster and the government must "follow the law of the land".
Government has limited authority in the appointment of judges: Rijiju
Law Minister Kiren Rijiju today told the Rajya Sabha that the government had taken many measures to reduce vacancies; however, till the process to appoint judges was not cleared, issues on judicial vacancies would keep cropping up.
Addressing members of the upper house, the law minister said that according to the constitution the government had outlined the process and had the right to appoint judges in consultation with the court. "This changed after 1993," he said referring to the Second Judges case which introduced the collegium system.
The Supreme Court through its verdict in the 1993 Second Judges case introduced the collegium system. The three judges' cases—First Judges Case (1981), Second Judges Case (1993) and Third Judges Case (1998)—have collectively developed, evolved, and upheld the process for appointment of judges in the higher judiciary and principle of judicial independence.
Rijiju said the Centre has repeatedly written to the CJI and other high court chief justices to immediately recommend names to fill vacancies. "We have asked the collegium to recommend "quality" judges and ensure there is diversity in the recommendations especially women, the law minister said.
No plans to introduce NJAC: Law Ministry
Even as it continues to lament its loss, the Centre told the Parliament that "at present, there is no such proposal" to re-introduce the NJAC—its flagship law on the appointment of judges—which was struck down by the Supreme Court in October 2016.
Law Minister Kiren Rijiju on December 9 was responding to a query posed by Leader of Opposition (LoP) Mallikarjun Kharge and CPI (M) MP John Brittas who asked if the Centre planned to introduce the NJAC with suitable modifications.
However, days later on December 11, CPI(M) MP Bikash Ranjan Bhattacharyya introduced The National Judicial Commission Bill, 2022 by way of a Private Members Bill in the upper house.
AAP MP Raghav Chadda opposed the bill arguing that the government wanted "to capture the only pillar of democracy that is keeping its dictatorial tendencies in check". Interference of political class in the appointment of judges would jeopardize the independence of the judiciary which is part of the 'basic structure' of the Constitution, Chadda tweeted.