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The Supreme Court bench headed by Chief Justice Dipak Misra and comprising Justice D.Y. Chandrachud and A.M. Khanwilkar on 2nd July 2018 adjourned the petition filed by Madras Bar Association to the month of August. Two similar writ petitions filed in the month of April seeking expeditious appointments of judges to the Calcutta High Court had been denied by the CJI.
The abovesaid case concerns a writ petition filed by Madras Bar Association praying for fixing of timelines for each stage of the Memorandum of Procedure (MoP) for judicial appointments. Various strikes had occurred on the grounds of vacant posts in the Karnataka and Calcutta High Court following which the writ petition was filed in the SC. The petition wailed on the unreasonable delays by the Executive in the appointments which subsequently, effects the recommendations to the Supreme Court and High Court collegia leading to over 400 vacancies currently in the 24 High Court across India and 8 vacancies in the Supreme Court itself. It was further argued by Senior Counsel Arvind Datar, that the government uses the practise of ‘indirect veto’ by following arbitrary appointment practices violating the Articles 14, 19 and 21 of the Indian Constitution and infringing the citizen’s Fundamental Right of access to justice. The petitioner also relied on the Second Judges Case (1993) to emphasize the need to avoid dilatory methods in the appointment process. This raised a substantial question on the interpretation of the Constitution as to whether the apex court was empowered to set a time schedule for the implementation of the MoP.
After the NJAC was declared unconstitutional on 16th October 2015, broad guidelines to introduce transparency and accountability in the collegium system by supplementing the MoP as drafted by the GOI was introduced. However, the MoP has since being getting tossed back and forth between the Centre and the Collegium. The Supreme Court had clarified in March 2017 that it will have the final say in cases where the recommendations of a judge were returned by the government on the grounds of national security and public interest. A notice was issued to the centre on 27th October last year regarding the delay in the finalizing the MoP. However, the same was dismissed on 8th November 2017 by a bench headed by CJI.
The government had urged the Supreme Court to improve its draft Memorandum of Procedure following the 2017 judgment on the former Calcutta High Court Judge, Justice C.S. Karnan. Subsequently, the law minister has also expressed the need for auditing the present collegium system. Everyone now awaits the hearing scheduled in the first week of August.
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