- The move by the Supreme Court to seek an explanation from the government about the delay in finalising a fresh Memorandum of Procedure (MoP) for the appointment of judges in the higher judiciary raises more questions than answers. We do not know, for instance, what is holding up the process. It is not clear whether the government and the five-member Supreme Court Collegium have been unable to agree on some significant aspects of the MoP.
- It is possible that the consultative process has broken down and the government requires a nudge from the court to both explain the delay and expedite the process. The matter came to the highest court after the Delhi High Court dismissed an advocate’s challenge to the appointment of judges without a new MoP being finalised as per the Supreme Court’s December 2015 order. The two-judge Bench hearing an appeal agreed with the high court, but wanted to consider a related prayer — that there should be no further delay in finalising the MoP and that it should provide for a mechanism to avoid any undue delay in the appointment of chief justices for the various high courts. At present, seven high courts have only acting chief justices. The Centre must use this opportunity to throw some light on the status of the consultation between the government and the Collegium. The delay in finalising a fresh procedure for appointments is a cause for concern, as vacancies in the high courts have continued to increase while the pace at which new judges are being appointed remains sluggish.
- What is really worrisome is that two issues may come to be seen as deliberately inter-linked: the delay in evolving a fresh procedure and the perceived tardiness in clearing and making fresh appointments. In the two years since legislation seeking to create a National Judicial Appointments Commission was struck down by a Constitution Bench, there have been many instances of incumbent Chief Justices of India voicing dismay and anguish over the rising number of vacancies. Mercifully, these potential flashpoints did not turn into full-blown conflicts. This was possible because the appointments process, though slow, was never stopped and the recommendations of the Collegium were being processed and cleared by the Centre. That the same issue should crop up repeatedly is not a good sign. When it is agreed in principle that having a fresh and transparent appointments process is vital to institutional reform, it would be unfortunate if the two sides are seen as being obdurate and inflexible on the new MoP. A judicial direction to the government to notify a procedure approved by the Collegium will be an easy way out, but it will not do anything to address the problem of judicial primacy being seen as detrimental to judicial accountability. A consensus on this matter will be far more conducive to the public interest.
Nudge: a light touch or push.
Example: He gave her shoulder a nudge
Synonyms: poke, prod, jog, jab, push, dig
Expedite: make an action or process happen sooner or be accomplished more quickly.
Example: He promised to expedite economic reforms
Synonyms: speed up, accelerate, hurry, hasten, step up, quicken, precipitate
Sluggish: slow-moving or inactive.
Example: A sluggish stream
Synonyms: inactive, quiet, slow, slack, flat, depressed, stagnant
Deliberate: done consciously and intentionally.
Example: A deliberate attempt to provoke conflict
Synonyms: intentional, calculated, conscious, intended, planned, studied
Worrisome: causing anxiety or concern.
Example: A worrisome problem
Synonyms: alarming, worrying, daunting, perturbing, niggling, nagging
Dismay: consternation and distress, typically that caused by something unexpected.
Example: To his dismay , she left him
Synonyms: alarm, shock, surprise, consternation, concern, perturbation
Anguish: severe mental or physical pain or suffering.
Example: She shut her eyes in anguish
Synonyms: agony, pain, torment, torture, suffering, distress, angst, misery
Transparent: allowing light to pass through so that objects behind can be distinctly seen.
Example: Transparent blue water
Synonyms: clear, crystal clear, see-through, translucent, pellucid, limpid
Obdurate: stubbornly refusing to change one’s opinion or course of action.
Example: Its best to get in reasonably early as it can be fiendishly difficult to get into, and the doorstaff can be
unyielding and obdurate , despite your silver-tongued attempts to gain access.
Synonyms: stubborn, obstinate, intransigent, inflexible, unyielding
Inflexible: unwilling to change or compromise.
Example: Once she had made up her mind, she was inflexible
Synonyms: stubborn, obstinate, obdurate, intractable, intransigent
Detrimental: tending to cause harm.
Example: Releasing the documents would be detrimental to national security
Synonyms: harmful, damaging, injurious, hurtful, inimical, deleterious
Conducive: making a certain situation or outcome likely or possible.
Example: The harsh lights and cameras were hardly conducive to a relaxed atmosphere
Synonyms: favorable to, beneficial to, advantageous to, opportune to, propitious to