“Something is Rotten in the State of Denmark”—Delays in Judicial Elevation

By Prof. Upendra Baxi

It is not entirely correct to write about a legal matter that is in the process of being heard and has not yet been fully closed. The matter becomes even more dangerous when one has to rely on legal proceedings, as variously presented in the media, without an official record. However, I venture an essay on what recently surfaced before the Supreme Court of India (SCI) regarding the delay in the appointment of judicial officers. These affect every Indian citizen, whose basic human rights are upheld, promoted and protected by the building courts.

This unusual narrative essay expresses no opinion on how the matter can be finally decided, which is to be decided solely by her lordship. Without giving a direct or indirect opinion on the procedure, I am summarizing the most important arguments for and against and systematically presenting the ongoing judicial concerns so that the constitutionally enlightened citizen can follow the further procedure with increasing interest.

“Something is fishy in Denmark,” said Marcellus to Horatio in Hamlet (act 1, scene 4). This saying is not used specifically for any country. and here it articulates a sense of deep fear of governance practices that lead to significant delays in the belated scrutiny of judicial appointments and transfers.

Lok Pahari is an NGO (founded in 2003) – an association of retired veterans, police officers, judges and respected citizens – and has often successfully petitioned the SCI on a variety of public administration issues. The association has made claims about clean and responsible public administration that the Apex Court approved and drafted. In a landmark suffrage case (Lok Pahari, 2018), the SCI (per Ranjan Gogoi, with Justice Banumathi) recalled Lord Justice Nolan’s famous seven principles for public administration (originally adopted in Vineet Narain, 1997) as “selflessness, integrity, objectivity, Accountability, Openness, Honesty and Leadership ”. These are important principles, but enough has been said in the legal discourse of the SCI and in the case of judges about the qualities that a judiciary should have.

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Judges who have taken an oath of office under the third schedule of the Constitution are still required to honor it, and despite some criticism of the functioning of the judicial college system, the SCI decided early on that its decisions should not be heard in a lawsuit: “Except due to the lack of consultation with the aforementioned constitutional officials or the absence of a condition of admission in the event of an appointment or transfer without the recommendation of the Chief Justice of India, these matters are in no other respect justified, including the prejudice exerted in each case by the element of plurality in the decision-making process is excluded. ” [(in S.P. Gupta (1981), para 482].

The “transparency” of judicial inquiries and transfers must find its obvious limit in a fundamental decision. This does not make responsible criticism of the judicial college inadmissible or inadmissible, but only that decisions about judicial elevations and transfers are not subject to strict judicial control. The Nolan Principles adopted by the SCI regulate the standards of civil servants who fail to take an appropriate oath of office after the third schedule. Demosprudential governance and acts of judicial co-governance can be controversial. However, it must always be remembered that judges have a constitutional judicial office that is different from any other constitutional, legal or administrative office.

A recent hearing on judicial appointments launched by the same NGO reveals many unusual features. First of all, we learn significantly (in a bank chaired by Chief Justice Sharad A Bobde with Judges Sanjay Kishan Kaul and Surya Kant) that the Memorandum of Procedure (MoP) on the appointment of judicial officers has been pending in the government of the Union for almost four years is. It did so despite the “Judicial Revolt” in January 2018, when four of the SCI’s top judges published a letter to the CJI in the judiciary’s very first press conference about the government’s lack of response to the closure of MoP and the Role of the Master of Rolls.

Second, we now also know about the existence of a MoP elaborated by the SCI, which is now in operation in the Judicial Collegium. Constitutionally sincere citizens get an idea of ​​it but do not yet know the full extent or the disagreement or the difference between the SCI and the executive and may never do so. Should Indian citizens be guided by standards of constitutional morality that include an old adage: If ignorance is bliss, is it folly to be wise?

Third, Justice Sanjay Kaul has prepared a memorandum of college recommendations that it is hoped will be an integral part of the final verdict on this case. Accordingly, there were 189 nominations pending in the government as of December 31st. Judge Kaul expressed “great concern” about this issue when “you have not commented on the recommendations of the college for five months …”.

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Fourth, the court asked the learned attorney general, “What is your timeline for responding to these recommendations for the appointment of judges? It took the government more than a year to reply … You say there is still something to be done in the Secret Service and some prime ministers have not replied. We want to know your timeline. “The reason for the proposal for the timeline was not controversial; The bank simply said, “Assuming you have reservations and send us the names back, we can review or investigate your objections.” However, if the executive “has not commented on a college recommendation for five months”, a serious constitutional “concern” arises. This remark needs to be read not only in the context of the completion of the MoP, but also in light of the fact that the College was reported as an indication of the fact that the “High Courts have at least 40% of the judicial vacancies…. “Of the total of 1,079 judges in high courts, there were 411 vacancies -” more than a third of the total positions “and” around a dozen names for appointments to the high courts of Allahabad and Bombay have been pending since May and June last year ” .

For this reason, the bank wanted all high courts to “express their views on the matter at hand.” The unimplied high courts are used as party respondents in the present matter. Perhaps their views would have been obtained through some other modality, faster than advocating them as full parties, if only with the aim of not delaying the final process.

Seventh, Attorney General Venugopal provided an interesting nugget of information. He alleged that the College also delayed the appointment process. The government’s delay was largely due to the fact that it “thoroughly combed the candidate’s history so as not to leave room for error. The process takes an average of at least 127 days “, while the judiciary” needs an average of 119 days just to forward the file to the government “.

This is startling information, and it suggests a situation where both the executive and judiciary are considered equal partners during the time it takes to appoint judicial officers. At the same time, Justice Kaul cited a table detailing the dependency of nearly 200 proposals pending with the government and college, adding that the college released eight judges in five months while the names of six judges are pending Government – four out of six are government advisors. And Justice Surya Kant told the AG that there have been some cases where it has taken the government more than a year to reply, “They say that the Intelligence Bureau (IB) has something pending, and in some cases they have Prime ministers did not respond to appointments in the high courts. But we would like to know what your (center) timeline looks like … “

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Certainly the aggregated data shows the picture of almost the same time that the judiciary and the government took. But disaggregation suggests otherwise. It is hoped that a more complete and definitive picture will emerge soon, as any further delay in resolving the problem of the delay in judicial proceedings will undermine the full realization of the fundamental rights of individuals and citizens under existing constitutional law and case law.

– The author is an internationally recognized legal scholar, a recognized teacher, and a noted writer

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