Scandalous, irresponsible and impervious to public interest — one would like to cry out at the situation reported in the Press that out of the1074 positions — the full strength of High Court — 458 are vacant. But one does not do so because of the inherent partiality that comes from belonging to the same fraternity. If a similar situation was prevailing in the Executive, the wise and sensitive men and women of the legal fraternity would have shouted from the house top about the inefficiencies and the lack of sensitiveness on the part of politicians for violating public interest. So, if now some in the executive sarcastically remind the judiciary (being wary of listening to the daily homilies from the Bench) "Physician, heal thyself" he could not be proceeded against for contempt for the simple reason that "though the work of Judges is divine, the tragedy is that Judges have somehow started believing that they have become divine". Apart from the fact that there are many High Courts who have acting Chief Justices, is it any wonder that arrears keep on mounting with the inevitable consequence of anger rising against the Judiciary?
The tragedy is that in all this maligning of the Judiciary, the legal fraternity including the judiciary needs to shoulder its share of the blame. Undoubtedly, secrecy and the lack of consultation with public and the Bar were faults of the Collegium System. But instead of the court doing this correction by administrative measure, it chose to reopen the Collegium System delivered earlier by a nine- Judge Bench decision.
It is correct that the situation was brought about by the unseemly action by the legislature and gleefully led by ministers in the government to curtail and downgrade the effectiveness of the judiciary — the irony being that these worthies had earned their exalted position because of the impartiality and status of the judicial system. The legal fraternity was right in shouting "Et tu Brutus".
After the decision, the Collegiums should have started the process of filling the vacancies, but still further to show that it is open to the suggestions from the Bar and public as to the methodology of not only selecting judges but also the process of making the process more transparent. It was expected that after further court hearings, it will come out with a Memorandum of Procedure for selection. But surprisingly after weeks of court hearing, it decided to avoid its responsibility and asked the government to frame the Memorandum of Procedure. I have still not understood the logic of this decision which was bound to be self defeating. This naturally gave an opening which had been closed permanently by the Bench holding earlier that the last word in the selection of judges is that of the Collegium.