Latest news with #MemorandumofProcedure
Hindustan Times
6 days ago
- Politics
- Hindustan Times
Case for diversity in higher courts
A former chief justice of Madhya Pradesh High Court, Suresh Kumar Kait, has alleged that the collegium, which makes the final selection of judges to constitutional courts, is 'dishonest' in its treatment of people from the Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backwards Classes (OBC), while making appointments to the high courts. His claim rests on the fact that the number of judges from these social groups is not commensurate with their share in the country's population. Kait has proposed reservations to address this anomaly. Kait's very subjective description of the conduct of the collegium could be discarded, but his remark about the lack of diversity and representation in high courts surely calls for a conversation. To be sure, the Memorandum of Procedure (MoP), which guides appointments in constitutional courts, has not proposed caste quotas in judiciary. The collegium makes its choices using MoP as a guide and, after due consideration, which includes consultations with the government and review of feedback from State agencies, appoints the judges. Merit and seniority are considerations when the collegium looks at the candidates, but multiple chief justices of the Supreme Court have said they try to ensure that appointments reflect the social diversity of the country. However, data shows that despite the best intentions of the collegium, the higher judiciary remains mostly the preserve of upper caste Hindus. A response by the government in the Lok Sabha in December 2024 reveals that out of 684 high court judges appointed since 2018, 21 belong to SC category, 14 to ST category, and 82 belong to OBC category. In percentage terms, this is 3%, 2%, and 12% of the appointments, whereas the share of these groups in the population (as per the National Family Health Survey, 2019-2021) is 22%, 9.5%, and 42%. A data analysis by HT revealed that 75.6% of judges in the Supreme Court during 2010-25 belonged to Hindu upper castes, whereas OBC representation was limited to 7.8%. The representation trend has improved over the decades, though the change has been far from adequate. Kait's attempt to shame the collegium as 'dishonest' is uncalled for, but the data is glaring for anyone to ignore that Dalits, tribals and OBCs are underrepresented in constitutional courts. Appointments to constitutional posts have not followed any principle of affirmative action, but representation has become a political question — so much so that no party can ignore it in the selection of people to ministerial positions and high public office. The inclusion of caste enumeration in the census and legislation on women's reservation in Parliament suggest that representation and diversity have become central to public life and appointments. The judiciary's turn has come.
Hindustan Times
15-07-2025
- Politics
- Hindustan Times
Govt notifies appointments of 9 high court CJs in massive rejig
In a major shake-up in the higher judiciary, the Union government on Monday cleared a series of long-pending appointments and transfers, notifying new chief justices for nine high courts and the relocation of 19 high court judges across India. The flurry of late-evening notifications came seven weeks after the Supreme Court collegium, under Chief Justice of India (CJI) BR Gavai, recommended these sweeping changes on May 26, marking his first decisive move after taking over as the head of the Indian judiciary. The collegium also comprised justices Surya Kant, Vikram Nath, JK Maheshwari and BV Nagarathna. The notifications came after the SC collegium under CJI BR Gavai recommended the changes on May 26. (HT Photo) The long-awaited approvals end weeks of bureaucratic impasse and underline continuing friction between the judiciary and executive over the pace and manner of processing collegium recommendations. These include charges of 'selective action' — a practice that CJI Gavai has explicitly cautioned against, holding that fragmented implementation of collegium decisions disturbs seniority and erodes public confidence in the appointment process. Among the significant moves, the Delhi high court received an infusion of six new judges, including the return of justice Kameshwar Rao, earlier transferred to Karnataka, and judges from the high courts of Punjab & Haryana and Bombay. The other high courts that saw a change in leadership include Rajasthan, Karnataka, Gauhati, Patna and Jharkhand, where new chief justices were appointed, and Madras, Tripura, Telangana and Jharkhand, where incumbent chiefs were rotated. This revamp comes in the wake of growing unease within judicial circles over the Centre's delay in acting on several crucial collegium files. While the government had swiftly notified the appointment of three new Supreme Court judges — justices NV Anjaria, Vijay Bishnoi, and AS Chandurkar — just four days after their recommendation on May 26, it had stalled action on other proposals from the same meeting for over a month. As reported first by HT on June 19, CJI Gavai is learnt to have taken strong exception to this practice. He has conveyed to the government that collegium recommendations, whether for appointment or transfer, must be acted upon in their entirety, without picking and choosing. While the May 26 collegium meeting proposed 22 transfers, the government on Monday cleared 19 recommendations, leaving three transfers to the Telangana high court pending. The Memorandum of Procedure (MoP), the document guiding judicial appointments, does not prohibit segregation, but the judiciary has consistently resisted the practice. In 2014, then CJI RM Lodha wrote to the Union law minister protesting the exclusion of Gopal Subramanium from a batch of four SC recommendations. More recently, in 2022–23, a bench led by justice Sanjay Kishan Kaul warned that such selective approvals undermined the 'workable trust' between the judiciary and executive. Despite Monday's progress, significant concerns remain. The government is yet to act on an additional 36 recommendations made by the collegium on July 2, after an unprecedented two-day round of interviews with 54 candidates. The latest recommendations include elevations to high courts in Delhi, Madhya Pradesh, Punjab and Haryana, Patna, Telangana, Andhra Pradesh, Rajasthan and others, in a move aimed at plugging the alarming shortfall in judicial strength. As of July 1, India's 25 high courts had 371 vacancies against a sanctioned strength of 1,122 judges. Furthermore, delays and inaction have also led to disillusionment among candidates. In recent weeks, two senior advocates withdrew their consent for elevation — a rare but telling sign of eroding morale. Advocate Rajesh Sudhakar Datar, recommended in September 2024 for the Bombay high court, withdrew on July 5 after waiting over nine months without communication, even as juniors from the same batch were sworn in. 'It is for the sake of my own self-respect, and for the respect of the entire bar,' he told HT earlier. Advocate Shwetasree Majumdar, an expert in intellectual property law, similarly withdrew after waiting for nearly a year. Her name remained pending even after she completed her medical examination, while contemporaries were cleared.
The Wire
05-07-2025
- Politics
- The Wire
From Bench to Bar, the Executive Tightens Its Grip on Justice
Law Madan B. Lokur a minute ago If the judiciary and bar associations are unable to assert their independence, then we might as well give up hope. The independence of the judiciary and the profession of lawyers is being slowly but surely compromised. The political executive has been stalling the appointment of judges by disregarding the recommendations made by the collegium of judges of the Supreme Court (no less). There are well-known, documented cases of the political executive taking no action on recommendations made by the collegium of judges, rendering the agreed Memorandum of Procedure nothing but a scrap of paper. Where appointments are made, they are delayed, thereby adversely impacting the seniority of some judges while favouring others. For the present purposes, it is not necessary to revisit these lanes and bye-lanes. However, what is equally, if not more disconcerting is the view taken by the political executive that reiteration of recommendations by the collegium is meaningless. The Memorandum of Procedure, based on judgments of the Supreme Court, does not give room to the political executive to effectively reject candidates for judgeship when reiterated by the collegium. Yet, this is happening with not a squeak from the collegium. What are we to make of this? In my view, if the judiciary is unable to assert its independence, we might as well give up hope. Dominance of the judiciary by the political executive has delayed justice delivery with the result that violent crimes appear to have increased. These are reported daily in newspapers, and TV channels hype up these cases and convict the suspects even before the police complete their investigation. So much for speedy justice. But there are those who commit a crime and get away with it. They know the right people in the right places. Even the TV channels cannot touch them. A judge of a prestigious high court is facing an impeachment motion signed by the requisite number of parliamentarians. The allegation against him is of delivering hate speech. Effective and meaningful steps have not been taken on the impeachment motion for over six months. How does one explain the inaction? Is it deliberate? On the other hand, another judge of another high court, in whose official residence large stacks of currency notes were found, is expected to face a fast-track impeachment process. Why are the applicable standards so different? Incidentally, nobody knows where the currency came from and where it has disappeared – two extremely vital questions. It is not difficult to find out, but who cares. One judge has the right contacts, the other doesn't. These are instances involving judges, but there are many more involving lay persons and many of them have got away without the investigation being completed or placed on the back burner. This is commonly referred to as the 'washing machine syndrome'. It doesn't matter if the washing machine is front loading or top loading – all are automatic with fuzzy logic. While some sort of fear seems to be percolating the sinews of the judiciary, an attack has been launched on the practitioners of the legal profession. Lawyers are now the target of investigations for opinions given by them. Two recent incidents have shaken up the lawyer community. But the attack started a couple of years ago. A firm established by two lawyers called Legal Initiative for Forest and Environment (LIFE) specialising in environmental issues was among the first to take the flak. LIFE is the 2021 recipient of the Right Livelihood Award or alternative Nobel Prize for its work on environmental protection. It has given opinions on environmental issues and argued cases against influential lobbies. This attracted the attention of the powers that be and ever since then the lawyers have found themselves in quicksand. They are being hounded by the Income Tax Department and by the Central Bureau of Investigation. Like some suspected criminals, they have to take permission of the high court to travel abroad to attend conferences and leave a security deposit ensuring their return. So much for the independence of lawyers. The issue of the independence of lawyers has been further escalated by the Enforcement Directorate (ED), which recently issued summons to two respected senior advocates of the Supreme Court to appear with all documents. Why? Because the ED didn't quite like the opinion given by them to their clients. It is frequently said in the legal fraternity that the bench and the bar are two wheels of a chariot. One wheel, the bench or the judiciary, is already being pressurised, and now the executive is targeting the other wheel, the bar. Fortunately, several bar associations/bodies across the country took up the 'deeply disquieting development' of the ED summons to senior advocates with the Chief Justice of India and better sense prevailed on the ED and the summons was withdrawn. But the chilling effect remains. That is not yet the end of the matter. The ED can still issue summons to lawyers with the permission of the director of the ED. What are the circumstances in which permission can be granted? Are there any parameters for exercise of discretion by the director? As things stand today, in the absence of clearly defined parameters, summons can again be arbitrarily issued to the two senior advocates with the fig leaf imprimatur of the director. The assault on the independence of the lawyers can still continue, since no rule of law checks have been laid down by the director in exercise of his power. These developments have compelled the Supreme Court to take suo motu cognisance of the shenanigans of the ED. Meanwhile the European Committee on Legal Co-operation has prepared a Council of Europe Convention for the Protection of the Profession of Lawyer. This has not yet come into force, but many of its provisions would be extremely helpful in guiding and ensuring the independence of the legal profession. It's time the fraternity of lawyers takes steps to protect its interests as well as those of its clients, whether they are innocent or guilty. Will the bar associations/bodies counterattack and take the battle to the executive? If they don't, all is lost. More importantly, having taken suo motu notice of the assault, will the Supreme Court uphold the independence of the legal profession, particularly when it is hard pressed to uphold the independence of the judiciary? Will the chariot continue to have its wheels? Madan B. Lokur is a judge of the Supreme Court of Fiji. He is a former judge of the Supreme Court of India. This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here. The Wire is now on WhatsApp. Follow our channel for sharp analysis and opinions on the latest developments.
Hindustan Times
19-06-2025
- Politics
- Hindustan Times
The need to find common ground
Chief Justice of India (CJI) Bhushan R Gavai's advice to the Union government to refrain from selectively acting on collegium recommendations is timely. HT reported on Thursday that CJI Gavai issued this message after presiding over his first collegium meeting on May 26. According to people familiar with the matter, CJI Gavai was emphatic that segregating names from a batch of recommendations not only disturbs the seniority of judges but also sends an improper message about the collegium's authority and functioning. India has a nuanced process to pick judges for constitutional courts — where the senior-most judges pick judicial candidates and their names are confirmed by the executive, pending background checks. Selectively picking candidates out of a batch of names recommended by the collegium creates an unfavourable perception of bias and hurts the public standing of the judiciary. The smooth running of the judiciary — one of the pillars of India's democracy — depends on an honest and transparent working relationship between the courts and the executive. The selective picking of names by the executive, therefore, threatens to upset that delicate balance by creating an uneven playing field where some names are given precedence over others. Not only is this detrimental to critical processes such as seniority and filling of vacancies but also the standing of particular judges. This is not the first time such concerns have been raised. In 2014, then CJI RM Lodha wrote to then law minister Ravi Shankar Prasad, objecting to the government's unilateral decision to drop former solicitor general Gopal Subramanium from a list of four recommended judges for the Supreme Court. Subramanium later withdrew his nomination. Between 2022 and 2023, a bench led by justice Sanjay Kishan Kaul noted that 'selective appointments' damaged the 'element of workable trust' needed between the judiciary and the executive, and sent 'a wrong signal'. The relationship between the government and the judiciary has remained fraught since a showdown over the proposed National Judicial Appointments Commission Act. This newspaper has been a constant advocate for greater transparency in the working of the collegium. But just because the Memorandum of Procedure (MoP) — which guides the appointment and transfer of judges in constitutional courts — does not explicitly prohibit segregation, it doesn't mean that the practice should continue. The Centre should reconsider its stance.
Hindustan Times
18-06-2025
- Politics
- Hindustan Times
CJI tells Centre not to act on collegium picks ‘selectively'
Chief Justice of India Bhushan R Gavai has conveyed to the Union government that the Centre should refrain from selectively acting on collegium recommendations, emphasising that appointments and transfers should not be cleared in instalments or by segregating names. According to people familiar with the matter, Justice Gavai issued this message after presiding over his first collegium meeting on May 26, which recommended a sweeping overhaul of key judicial positions across the country. 'CJI Gavai was emphatic that segregating names from a batch of recommendations not only disturbs the seniority of judges but also sends an improper message about the collegium's authority and functioning,' a person aware of the development said. This person pointed out that some of the recommendations made by CJI Gavai's predecessors have remained pending till date after the government segregated them. In a decisive opening move, CJI Gavai led the collegium in recommending the elevation of three high court judges -- Justices NV Anjaria, Vijay Bishnoi, and AS Chandurkar, to the Supreme Court. Apart from Justice Gavai, the collegium comprised Justices Surya Kant, Vikram Nath, JK Maheshwari, and BV Nagarathna. The Union government acted with speed, notifying the appointments on May 30, allowing the top court to reach its full sanctioned strength of 34 judges. The same meeting also proposed the appointment of five new chief justices -- Justice Sanjeev Sachdeva (Rajasthan), Justice Vibhu Bakhru (Karnataka), Justice Ashutosh Kumar (Gauhati), Justice Vipul M Pancholi (Patna), and Justice Tarlok Singh Chauhan (Jharkhand). In addition, four sitting chief justices were rotated between Madras, Rajasthan, Tripura, Telangana and Jharkhand high courts. In addition, this meeting proposed transferring 22 judges to various high courts based on administrative need and personal requests. The Delhi High Court, notably, received a proposed infusion of six judges, reflecting a focus on enhancing transparency in judicial appointments and accountability. These decisions follow the Supreme Court's recent strides towards openness, including the publication of collegium resolutions, judge profiles, and asset declarations on its official website – part of a transparency initiative launched under former CJI Sanjiv Khanna in early May. Another person familiar with the matter said that all collegium files related to judge transfers and chief justice appointments, except one delayed due to a late consent, have been cleared and may be formally notified within a week. 'All the files, except one where the consent of the judge concerned reached late and led to some administrative issue, have been cleared and are awaiting final notification by the government. They may happen within a week.' While the Memorandum of Procedure (MoP), which is the document guiding the appointment and transfer of judges in constitutional courts, does not explicitly prohibit segregation, the judiciary has consistently opposed the practice. In 2014, then CJI RM Lodha wrote to then Union law minister Ravi Shankar Prasad, objecting to the government's unilateral decision to drop former Solicitor General Gopal Subramanium from a list of four recommended judges for the Supreme Court. Subramanium later withdrew his nomination. More recently, between 2022 and 2023, a bench led by Justice Sanjay Kishan Kaul criticised the practice, noting that 'selective appointments' damaged the 'element of workable trust' needed between the judiciary and the executive. The bench warned that such conduct 'sends a wrong signal.' However, following Justice Kaul's retirement in December 2023, the matter has not been listed for further hearing. In 2014, the National Democratic Alliance government passed the National Judicial Appointments Commission (NJAC) Act, setting up an alternative system for the appointment of judges to constitutional courts which also proposed a greater role for the government in the process. But, in 2015, the Supreme Court struck down the law for being unconstitutional because it sought to tinker with the independence of the judiciary. Since the NJAC verdict, the relationship between the judiciary and the executive has remained fraught, with tensions often surfacing over the MoP, the document that outlines the process of judicial appointments. Despite several rounds of discussions, a new MoP has not been finalised, leading to frequent deadlocks and delays in judicial appointments. The executive has raised concerns about the lack of transparency in the collegium system, while the judiciary has resisted any perceived encroachments on its independence.
