IMPORTANT POINT
Appointment of ad hoc Judges in High Courts – Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from date of recommendation of High Court Collegium, to Central Government.

ORDER :

1. The High Courts are in a crisis situation. There are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.

2. We have discussed in detail the aforesaid while dealing with the aspect of appointment of ad hoc Judges under Article 224A of the Constitution of India in WP(C) No.1236/2019. Vide separate order in the aforementioned matter passed today, we have also discussed the process of appointment under Articles 217 & 224 of the Constitution of India.

3. Learned Attorney General has placed before us the appointment position in the High Courts to contend that against the sanctioned strength of 1080 Judges, 664 Judges have been appointed with vacancies of 416 Judges. However, the recommendations received and under process with the Government are 196 leaving 220 recommendations to be received.

4. We cannot but note the importance of the Chief Justices of the High Courts making recommendations in time. 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.

5. 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.

6. We had handed over a chart in the previous proceedings to the learned Attorney General of the names recommended from the High Courts which were still pending with the Government for more than six months, numbering 45. The last couple of weeks has seen progress in this behalf and those names have reached the Collegium. The second was the list of old proposals in pipeline pending with the Government of India after the Supreme Court Collegium recommendations numbering 10. These have been pending 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. Six names reiterated by the Supreme Court Collegium a second time, are also awaiting appointment.

7. Learned Attorney General did not differ with the requirement of time bound schedule for filling the vacancies at every stage though 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.

8. 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.

9. We have looked at the Memorandum of Procedure (for short ‘MoP’) as finalised by the Supreme Court Collegium on 10.3.2017 (which is identical to the MoP of 1999 subsisting earlier on these aspects) where certain timelines have been stated for appointment of Judges to the High Court. In terms of the timeline prescribed in the MoP, the relevant paras 21, 24 & 24.1 of the existing MoP are as under:

a. States may take not more than six weeks to send their views. (Cl. 21)

b. The Central Government can presume no objection of the State Government, if their views are not received within six weeks. (Cl. 21)

c. No timeline prescrib