With 220 vacancies, “the High Courts are in a crisis situation”; Here’s what the Supreme Court advised to facilitate timely appointments

Supreme Court: Taking note of the existing 220 vacancies in the High Courts, the 3-judge bench of SA Bobe, CJ and SK Kaul and Surya Kant, JJ stressed upon the importance of the Chief Justices of the High Courts making recommendations in time and said that there is no such impediment to initiate a new process without waiting for the result of the earlier recommendations.

The Court noted that the vacancies are known and the norms permit making recommendations up to six months in advance. However, even recommendations for 220 existing vacancies appear not to have been made much less for vacancies, which are going to arise in the next six months.

We, thus, once again, emphasise the requirement and desirability of the Chief Justices of the High Courts, who will make endeavour to recommend vacancies as early as possible even if they are not made at one go. We may add that even in the earlier orders we have noted the apparent hesitation of some High Courts to recommend names when the earlier list(s) is in the pipeline. We have opined that there is no such impediment to initiate a new process without waiting for the result of the earlier recommendations.

The pendency at the end of the Government: 

• 45 names recommended from the High Courts pending with the Government for more than six months reached the Collegium in the last couple of weeks.
• 10 recommendations from the list of old proposals in pipeline pending with the Government of India for considerable period of time.

“On the last date of hearing, the learned Attorney General had made a statement that a decision would be taken in this behalf within the next three months.”

• 6 names reiterated by the Supreme Court Collegium a second time, are also awaiting appointment.

While the Attorney General KK Venugopal did not differ with the requirement of time bound schedule for filling the vacancies at every stage, he emphasised that the trigger for filling up of the vacancies is the recommendations made by the Chief Justices of the High Courts.

However, once the recommendations are made, there are two stages at which the matter rests with the Government – the first when the Ministry processes the names; and the second post the Collegium of the Supreme Court taking a call in recommending such of the names as are approved by the Collegium.

Insofar as the Judiciary is concerned, the second stage after the recommendations are made by the Collegium of the High Courts is the time period taken by the Collegium of the Supreme Court in consulting the consultee Judge(s) to take a call on those names.

As per the Memorandum of Procedure finalised by the Supreme Court Collegium on 10.3.2017:

1. States may take not more than six weeks to send their views.
2. The Central Government can presume no objection of the State Government, if their views are not received within six weeks.
3. No timeline prescribed for the Central Government to forward recommendations.
4. The Chief Justice of India to send recommendations/advise to the Law Minister within four weeks.
5. The Law Minister to put up the proposal to the Prime Minister within three weeks for advise of the President.

In order to facilitate timely appointment, the Court advised to follow the following timelines in addition to the aforesaid:

i. The Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.

ii. It would be desirable that the Central Government forward the file(s)/recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/input from the IB.

iii. It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.

iv. If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously, such appointment should be processed and appointment should be made within 3 to 4 weeks.

[PLR Projects Pvt. Ltd v. Mahanadi Coalfields Ltd., 2021 SCC OnLine SC 332, order dated 20.04.2021]