September 25, 2022

Lukmaan IAS

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WHY IS IT SO HARD TO FILL UP THE JUDICIAL VACANCIES IN OUR COURTS?

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THE CONTEXT:  Today, our justice delivery system is facing multiple challenges. Two of them are stark and need immediate attention – appointment of judges and managing the humongous number of pending cases. There is a large number of vacancies in the sanctioned strength of High Courts and the Sub Ordinate Judiciaries across the country. This has led to a delay in justice delivery and it is well known that delayed justice is denied justice. This delay also has serious implications for rule of law as the society at large starts losing trust in the justice delivery mechanism and begin to take law into their own hands. In this background, this article attempts to comprehensively address the reasons and solutions with respect to the large vacancies in the Indian Judiciary.

What does the statistic say?

  • As per the Department of Justice (DOJ), Ministry of Law and Justice, the sanctioned strength of high court (HC) judges is 1,080.
  • As of June 1, 2021, the vacancy of High Court judges is 430
  • Earlier, even when the sanctioned strength was in the region of 700+ the zero vacancies could not be achieved.
  • On 22 October 2018 the SC noted that according to the information submitted by Registries of the High Courts, there are 22,036 judicial posts in the District and Subordinate Courts:
    • 23% of these judicial posts are vacant, i.e. 5133 judicial posts
    • Recruitment processes are underway for 4180 posts
    • For 1324 vacant posts, there is no recruitment process underway
  • As of Apr 15, 2021, in SC 67279 cases are pending while in High Courts the number is a whopping 57.53 lakh. (National Judicial Data Grid)
  • The Subordinate judiciary (Districts courts and below) has a pendency of 3.81 crore cases as on the same date. (National Judicial Data Grid)

WHAT ARE THE IMPLICATIONS OF SUCH HUGE VACANCIES?

Apart from the huge pendency of cases in the courts, there are other serious consequences of a large number of vacancies. These are:

  • Rule of Law: The common man’s faith in the justice system suffers due to a lack of timely justice delivery. This leads to people taking the law into their hands or approaching influential entities like Khaps, for resolving their disputes often leading to miscarriage of justice. Many revenge killings or riots stem from the perception that delays in the justice system will lead to culprits walking scot-free.
  • Violation of Art 21: Vacancies denies the poor and under trial prisoners, their due of justice as their cases go on endlessly without speedy hearing and disposal. As per SC, the right to speedy trial is a fundamental right under Art 21. The consequence of delayed justice is injustice. Consider a few examples. In March this year, Vishnu Tiwari was held not guilty of rape by the Allahabad high court after he had spent 20 years in jail. In March, Dipak Jaishi a Nepali citizen was ordered to be released by the Calcutta high court from the Dum Dum Central Correctional Home after spending 40 years in judicial custody as an under trial prisoner.
  • Economic reforms: without a speedier justice system the economic reforms and ease of doing business initiatives remain only on paper and thus becomes ineffective in achieving their policy goals. As per the EoDB Ranking by World Bank, India’s position is 163 in the Enforcement of Contract Thus foreign investors are increasingly doubtful about the timely delivery of justice, which affects the success of programs like ‘Make in India’.
  • Over Worked Judiciary: Judiciary becomes overworked and lose its efficiency. Justice delayed is justice denied and Justice hurried is justice buried. The loss of judicial productivity leads to poor Quality of judgement. It is not uncommon to see over 100 matterslisted before a judge in a day leading to very little time on analyzing every fact of the case.
  • Criminalisistaion of Politics: The vacancies across the courts results in the criminal or electoral malpractices cases against politicians dragging for years. This delay seems to provide impunity to the criminal elements in politics to continue with their actions which encourages others also to do the same. Lack of speedy disposal of cases with respect to politicians results in serious erosion of legitimacy of political institutions, subversions of constitutional entities and politicization and criminalization of administration.

Why is there such huge vacancies?

1 HIGHER COURTS

 

 

The collegium system: Both at the Supreme Court and at the High courts, it has fared poorly in Judicial Human Resource Planning. Lack of timely identification of vacancies, beginning of selection process, and other formalities in a time bound manner have been among the biggest problems contributing to unfilled vacancies in High courts. Added to this, the highly opaque nature of this process tend to reduce the confidence among potential candidates leading them to not applying for the post. Thus there exists a huge gap between Sanctioned Strength and Working strength.

Finalisation of Memorandum of Procedure (MoP):  The present lack of consensus between the Executive and Judiciary, in relation to the finalisation of the MoP, has led to delays in filling up vacancies in the higher courts.

·         Adherence to timelines in filling vacancies:  The timelines laid down in the Second Judges case and the MoP are not being adhered to, by the Judiciary and the Executive.  This has resulted in extraordinary delays in filling up vacancies.  Further, while the current MoP has timelines for the appointment of HC judges, it does not lay down a similar timeline for SC judges.

Lack of suitable candidates: About half the outstanding lawyers who are offered a judgeship usually refuse the offer given by the chief justice of the high court. The fact that the Supreme Court and several high courts are seriously considering the appointment of retired high court judges as ad hoc judges is a clear indication that there is a dearth of outstanding talent or that outstanding lawyers are not willing for HC judgeship.

Systemic Issues/Institutional problem:  Advocate Saurabh Kirpal was recommended for appointment as a judge of the Delhi high court in October 2017. As yet, no decision has been taken on his appointment although more than three years have gone by. The ostensible reason going around is his sexual orientation. The Supreme Court has not said that having a particular sexual orientation is an offence so it should not be a disqualification

Behavior of the Executive: The manner of executing the transfer of Justice Muralidhar of Delhi HC was seen as unprecedented and disgraceful. A Similar case is of Justice Akhil Qureshi where his appointment as CJ of MP High court was changed and he was made a CJ of Tripura HC. . It has arguably given the message that if a judge is compassionate and caring, and if the executive do not like it, he or she is inviting trouble. These instances along with the executive using the National Security argument to delay the appointment and the time taken to notify the appointments are also reasons for vacancies. Moreover, these actions of the executive deter prospective candidates willing to join the higher judiciary.

Adhoc judge’s appointment: The appointment of retired judges was provided for in the Constitution under Article 224A (appointment of retired judges at sittings of High Courts).It is held that this process is given precedence sometimes over filling the vacancy in the High court through collegium mechanism and they are used as an alternative to regular appointments.

2 SUB ORDINATE JUDICIARY

Appointment Process: In the subordinate judiciary, appointments are made solely by the respective state governments. Lack of timely conduct of recruitment and appointment process is a major problem. Here, the role of State Public Service Commissions and HCs is crucial and many a times it is found that they have not been proactive in dealing with the judicial appointments.

· Non-availability of talent: The talent pool available for a judgeship in the lower judiciary is held to be minimal. For instance, the SC in 2019 had to grant grace marks to candidates who appeared for the Mains exams of Haryana Judicial services. The reason, only 9 out 0f 1200 who wrote the mains exam could qualify for the interviews for 107 vacancies.

Poor Scope for career advancements: The chances of a lower court judge being promoted to the high court or Supreme Court are also paper thin. There exist a disproportionately high number of judges selected as direct appointments from the Bar in the high courts, as compared to elevations from the subordinate judiciary.

HOW THE JUDGES ARE APPOINTED?

S.NO

COIURT PROCEDURE AS PER CONSTITUTION CASE LAW/JUDGE MADE LAW
1 SUPREME

COURT

Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose The collegium system for judicial appointments and transfer has its genesis in a series of three judgments that are now clubbed together as the “Three Judges Cases”.

The S P Gupta 1981, Supreme Court Advocates-on Record Association vs Union of India 1993, and Presidential reference to the Supreme Court 1998 provided primacy of the highest judiciary over the executive in the above judicial matters.

The SC collegium is headed by the CJI and comprises four other senior most judges of the court.

However, in the Fourth Judges case, the National Judicial Appointment Commission Constitutional Amendment Act was struck down by the SC.

Thereafter a mechanism of Memorandum of Procedure has been evolved to streamline the appointment of SC judges and appointment and transfer HC judges.

2 HIGH COURTS Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted A HC collegium is led by its Chief Justice and four other senior most judges of that court

According to the Memorandum of Procedure — a set of guidelines for appointment of judges in the higher judiciary — an HC collegium sends its recommendation to the central government and the SC collegium.

The latter, however, can clear the names only after it receives proposals from the government, following background checks of the candidates by the Intelligence Bureau (IB).

The collegium then clears the names and the law ministry notifies the appointments.

3 SUB ORDINATE JUDICIARY Article 233 in The Constitution Of India

Provides for the appointment of district judges. Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

As per Art 234. appointment of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State

No collegium system exists in the case of the lower judiciary. Thus, the state government, the respective HC and the State PSC are the major entities in the entire personnel management system of the lower judiciary. The central government provides grants for infra development of these courts based on Union Finance Commission recommendations.

 

WHAT MUST BE DONE TO ADDRESS THE HUGE VACANCIES?

  • Reform the Memorandum of Procedure (MOP): The high courts and the Supreme Court should both be transparent as far as the process of appointing judges is concerned.
    • The Memorandum of Procedure (MOP) postulates that a proposal made by the chief justice of the high court should be sent to the chief minister of the state and “to avoid delay” to the governor.
    • It should simultaneously be sent to the CJI and the Union law minister “to expedite consideration.”
    • The emphasis is on avoiding delays and expediting the process.
    • Immediately on receipt of a copy of the proposal, the collegium of the Supreme Court can start its scrutiny
  • Judicial Assertion: The judiciary must put its foot down and demand from the executive credible answers for the delay in responding to its recommendations and notifying the appointment.
    • In M/s. PLR Projects Pvt. Ltd v. Mahanadi Coalfields Limited, Apr 2020 the top court for the first time indicated an outer time limit of 18 weeks to complete the process for appointments of the High Court judges in a recent judgement
    • The court has said that in case the government has any reservation regarding certain recommendations, those names may be sent back to the Supreme Court collegium for specific reasons.
    • However, the bench held, if the collegium reiterates the recommendations unanimously, “such appointment should be processed and appointment should be made within three to four weeks”.
    • The court also emphasised the requirement of the chief justices of the 25 high courts to recommend vacancies as early as possible, and as and when new vacancies arose, irrespective of whether their old recommendations were cleared or not
  • Role of the executive in appointments: Judicial appointments is the joint responsibility of the Executive and the Judiciary, with neither body having primacy over the other.  The Constitution provides for appointment t by President after ‘consultation’ with the judiciary, instead of ‘concurrence’.  The present interpretation of the Constitution by the Supreme Court that requires the concurrence of the judiciary may be reversed.
  • Collegium versus Commission: over the decades, several high-level Commissions have examined this method of appointment of judges to the higher judiciary.  They have suggested that an independent body be set up to make recommendations for such appointments. For instance, the 2ndAdministrative Reforms Commission suggested:
    • Judiciary: CJI; [For HC judges: Chief Justice of the relevant High Court of that state]
    • Executive: Vice-President (Chairperson), PM, Law Minister, [For HC judges: Includes CM of the state]
    • Legislature: Speaker of Lok Sabha, Leaders of Opposition from both Houses of Parliament
  • Increase age of retirement:  The retirement age of SC judges may be increased to 67 years, and HC judges to 65 years.  This is based on increased life expectancy and is in line with international practice. This can prevent further vacancies from being added up due to the retirement of incumbent judges and attention can be focused on existing vacancies.
  • Minimum tenure:  Most Chief Justices of higher courts have short tenures, for about a year or so.  The Department of Justice may create a fixed minimum tenure for Chief Justices of higher courts. This enables the CJ of HC to have sufficient time to plan and implement judicial human resource management not only in their own HC but also in the lower judiciary.
  • National security and public interest:  The government proposes to decline the collegium’s recommendations for appointment on grounds of ‘national security’ and ‘larger public interest’.  These terms have also been proposed as parameters for appointments in the revised MoP.  If the government were to reject a candidate on these grounds, it would be similar to giving them a veto power, which is against the constitutional mandate.  The terms ‘national security’ and ‘larger public interest’, and the circumstances that would fall within their purview should be specified.
  • Shortlisting of names: The views of all judges in the court and the Bar Association must be taken in shortlisting of candidates.  All such names may be placed before the HC collegium, which will submit a final shortlist of names to the SC collegium and central government.  A cell in the Registry of the courts could maintain a computerized database of persons eligible for appointment as judges

MEASURES SPECIFIC TO LOWER COURTS

  • All India Judicial Service: The government is in the process of finalizing a bill to establish an All-India Judicial Service to recruit officers for subordinate courts through an entrance test. The provision of AIJS was included in Article 312 of the Constitution through the 42nd Amendment in 1976. The centralized timely recruitment process from a national pool of talented candidates can help reduce the problems of vacancies in the lower judiciary and will also provide quality manpower.
  • The 15th Finance Commission grants: The performance-based grants provided by the XVFC under the theme governance and administrative reforms include grants for the judiciary also. Thus, these funds can incentivize the creation of human and physical infrastructure in the lower judiciary.
  • Supreme Court Directions: It is important to note that the Supreme Court has been monitoring the vacancies in the district judiciary. It had prescribed timelines for the selection of judges at the state level in Malik Mazhar Sultan v UP Public Service Commission in 2006. In October 2018, the Supreme Court took suo motu cognisance of the vacancies in the district judiciary and asked state governments and high courts to file status reports with regard to the status of judicial vacancies and physical infrastructure in the states and it has been monitoring the selections since.
  • Central Selection Mechanism: A centralized system with one exam held throughout India would provide more certainty to the selection process. This would attract young legal minds and incentivize them to consider the subordinate judiciary as a prospective career option. The Supreme Court is pursuing the filling of vacancies as its top-most priority and has taken suo-motu action and has asked the opinion of various High Courts on centralization of the appointments of District Judges.

UNITED KINGDOM MODEL:  A LEARNING CURVE FOR INDIA

  • The UK used to have the Lord Chancellor (a political appointee) at the helm of decision-making.
  • This was changed by the Constitutional Reform Act of 2005; now a Judicial Appointments Commission (JAC) selects over 500 people each year for an appointment to judicial posts across the UK.
  • The process is clear and transparent as set out on their website, emails and Twitter.
  • In the, UK one can go to www.judiciary.uk and apply to be a tribunal judge or recorder/magistrate and there is a spreadsheet one can download to see the progression all the way up to the UK Supreme Court.
  • The Lord Chancellor has a much reduced role now in the appointment of judges he must consult senior politicians and senior judges before accepting, rejecting or asking for reconsideration of the names put forward by the JAC.
  • The JAC consists of 15 members, including six lay ones, five judges, one barrister, one solicitor, one magistrate and one tribunal member.
  • Appointment of judges is solely on merit and a consultation with the chief justice or his equivalent is required.
  • When assessing merit, the following factors are considered: intellectual ability, integrity, independence, objectivity, decisiveness, willingness to learn, ability to be fair, authority, efficiency and communication skills.

THE WAY FORWARD

  • The problems of vacancies in Indian courts requires a multifaceted collaborative approach with the executive, judiciary and other relevant stakeholders.
  • It is necessary that the “issue of justice delivery system” must become part of popular consciousness and not remain only in academic circles. This requires its inclusion in manifestos of political parties and electoral discourse.
  • Civil society must exert pressure on the executive and the higher judiciary through advocacy, research reports, PILs etc. While providing constructive suggestions for addressing the vacancies in courts, it can also put moral pressure on these institutions to act quickly.
  • The Law Commissions must be mandated to comprehensively study and review the current issues contributing for the vacancies and suggest relevant measures.
  • The Union Government and respective state governments need to come out with a White Paper on the “Problems of vacancies “and they must establish a time-bound action plan to address them.

CONCLUSION: A large number of vacancies in the Indian judiciary have multiple causes many of them systemic (institutional) while others are environmental (for instance, lack of public pressure). As the causes are diverse, the solutions must be also diverse. The administration of justice is a concurrent list subject, meaning it requires a cooperative federalism approach with an equally proactive engagement from the judicial side. At a time when the sanctioned strength is below par the required strength of judges as per UN Norms, the vacancies in the judiciary must be filled immediately.

 

 The Practice Questions:

  1. The persistence of a large number of vacancies in the Indian Judiciary has serious implications for the country. Analyse
  2. It requires a multi-pronged approach to address the problem of vacancies of judges in the subordinate judiciaries in India. Elaborate.

 

References:

1. https://thewire.in/law/india-judge-vacancies-justice-delivery

2. https://www.prsindia.org/report-summaries/inordinate-delay-filling-vacancies-supreme-court-and-high-courts

3. https://www.financialexpress.com/opinion/attorney-general-is-right-judiciary-too-must-act-on-vacancies-in-courts/1874629/ 

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