Strength in numbers: On judge vacancies

A flawed collegiums system is no reason to hold back appointments to the judiciary

The list of alarming numbers and figures relating to the depleting numbers in India’s higher judiciary has a new addition. On December 10, the Supreme Court of India said that 213 names recommended for appointment to various High Courts are pending with the government. Data show that 38% of all sanctioned posts for High Court judges are lying vacant as of December 1, with the High Courts of some States including Andhra Pradesh and Rajasthan functioning at below half their actual capacity.

The court has fixed a time period of six months to appoint as judges at least those whose names the Supreme Court collegiums, the High Courts and the Government have agreed upon. At each level of the appointment process of judges to the higher judiciary, prior to the names reaching the Prime Minister and President for final approval, there are time periods specified. The Memorandum of Procedure states that appointments should be initiated at least six months before a vacancy arises and six weeks of time is then specified for the State to send the recommendation to the Union Law Minister, after which the brief is to be sent to the Supreme Court collegium in four weeks. Once the collegium clears the names, the Law Ministry has to put up the recommendation to the Prime Minister in three weeks who will in turn advise the President. Thereafter no time limit is prescribed and the process, seemingly, comes to a standstill.

The Supreme Court’s recommendation now of a time limit to these appointments is welcome. It is no secret perhaps, that the equation between the court and the Union Government has been strained by the former’s decision to strike down as unconstitutional in 2015 the move to set up a National Judicial Appointments Commission which would have been responsible for appointments and transfers to the higher judiciary in place of the Supreme Court collegium.
Since then, reports of delays in appointments have become increasingly commonplace, with both sides testy over procedure. Last week, the same Bench of the Supreme Court chastised the government for not acting on another set of nominations on which the government had sent back objections. If the collegium reiterates the names, the court said, the government has no option but to appoint the judges. Such standoffs are now inevitable. As grievous as it is for the government to disrupt the process through delays, it is for the court to take an increasingly firm hand to ensure that the collegium system that it fought so hard to protect, despite flaws, actually functions effectively. Doing so would be in its best interests. Vacancies in the higher judiciary threaten every aspect of the justice delivery system and it is the courts, and very seldom the government, that always take the blame for any shortfall in justice.

Nehru – Liaquat Pact

The debate on The Citizenship Amendment Bill (CAB) in Parliament included multiple references to the Nehru-Liaquat Pact that was signed in Delhi in 1950. Home Minister Amit Shah has said that following the signing of the pact, while India protected its minorities, Pakistan failed to do so — and it was this wrong that the CAB would now correct.

At the time the pact, officially the Agreement Between the Governments of India and Pakistan Regarding Security and Rights of Minorities, was signed on April 8, 1950, Jawaharlal Nehru and Liaquat Ali Khan were the Prime Ministers of India and Pakistan.

Why was the Nehru-Liaquat pact signed?

The Nehru-Liaquat Pact, also known as the Delhi Pact, was a bilateral agreement signed between India and Pakistan in order to provide a framework for the treatment of minorities in the two countries.
The need for such a pact was felt by minorities in both countries following Partition, which was accompanied by massive communal rioting. In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.

What did India and Pakistan agree upon?

“The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the text of the Pact begins.

“Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively,” it said.

It noted that “The Prime Minister of India has drawn attention to the fact that these rights are guaranteed to all minorities in India by its Constitution”, and that “The Prime Minister of Pakistan has pointed out that similar provision exists in the Objectives Resolution adopted by the Constituent Assembly of Pakistan”.
Also, “Both Governments wish to emphasize that the allegiance and loyalty of the minorities is to the State of which they are citizens, and that it is to the Government of their own State that they should look for the redress of their grievances.”

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