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40% vacancy crisis nudges SC to order collegium to begin judicial appointments

The Supreme Court on Thursday asked its collegium to go ahead with the appointment of judges to the high courts and the apex court which have been put on hold ever since the government notification setting up the NJAC was challenged.

The constitution bench headed by Justice JS Khehar said “it is needless to mention that the process of appointment of judges by the collegium will continue and shall not be put on hold”.

The constitution bench - that also comprised Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel - reserved its order on a host of suggestions both by the government and the batch of petitioners on improving the working of the collegium and making it transparent.

The court order came a day after the central government on Wednesday told the constitution bench that the “collegium system should function as it is, as 40 percent vacancies have arisen in the high courts” which was adversely affecting hearing of cases.

The immediate task before the collegium is the appointment of three judges to the top court as there are three vacancies.

The apex court has the sanctioned strength of 31 judges but there are only 28 judges at present.

The last judge to be appointed to the apex court was Justice Amitava Roy who was sworn in on 27 February, 2015.

The 24 high courts across the country have a sanctioned strength of 1,170 judges but they are working with about 60 percent of their sanctioned strength. There are 370 vacancies in the high courts.

Curtains had come down on the collegium system on 13 April, 2015, after the government notified the Constitution’s 99th amendment creating constitutional basis of the National Judicial Appointment Commission and the National Judicial Appointment Commission Act, 2014 for setting up the NJAC

The constitution bench on 16 October had held unconstitutional and void the Constitution’s 99th amendment.

While holding that the NJAC was unconstitutional, the court had restored the collegium system for the appointment of judges.

The constitutional validity of the 99th amendment was challenged in a batch of petitions, including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others.

Though the apex court, in the course of its hearing spread over eight months, had never stayed the operation of NJAC, but Chief Justice HL Dattu had refused to participate, saying he would stay away (from NJAC) till the matter was decided by the constitution bench. The challenge to the NJAC’s validity was decided on 16 October.

The collegium system was put in place by a 1993 second judges’ case verdict and it was expended to the collegium five seniormost judges (CJI and four seniormost judges following him) by the 1998 third judges case.

Before being ousted on 13 April, the now restored collegium had recommended the appointment of 125 judges but the same are pending with the law ministry for processing and further action.

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