Subhashis Mittra
“Justice delayed is justice denied” is a legal maxim meaning that if legal redress is available for a party that has suffered, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all.
But, how can justice be delivered speedily if 470 positions are vacant in 24 high courts in India that should have 1091 judges?
“You cannot shift the entire burden on the judiciary,” Chief Justice of India T S Thakur said earlier this year. He became emotional in the presence of Prime Minister Narendra Modi, lamenting Government’s “inaction” in raising the number of judges from 21,000 to 40,000 to handle mounting cases.
“Nothing moves”, an unusually emotional Thakur said in a choked voice while addressing the inaugural session of Joint Conference of Chief Ministers and Chief Justices of High Courts in Delhi where he recalled a 1987 Law Commission recommendation to increase the number of judges from then 10 judges per 10 lakh people to 50.
That was the time when Thakur’s dramatic outburst brought the spotlight back on to the issue of judicial delays and backlogs in India. He quantified this with a claim that India needs 70,000 judges to clear the pending cases.
The basis for this is the benchmark of having 50 judges per million population. With India’s population being pegged at 1.2 billion as of May 2016, applying this benchmark, India should have approximately 60,000 judges. As on January 1, 2016, according to Court News, a publication of the Supreme Court of India, there were 16,119 judges in the subordinate judiciary, 598 in high courts and 26 in the Supreme Court. The latest figures (as on July 11, 2016), as seen from the National Judicial Data Grid and Department of Justice data, tell us that there are 16,438 judges at the subordinate judiciary level, 621 in high courts and 29 in the Supreme Court. All of this suggests that getting anywhere close to CJI’s benchmark of 70,000 or even 65,000 is going to be a herculean, if not impossible, task in the next few decades.
The justice system is caught in a tussle between the committee of Supreme Court justices and the Government over who has the final say on appointing judges. The two-decade old system of a collegium — a group of justices in a closed room deciding who gets to don the robe — is an Indian innovation created in the name of judicial independence. In reality it has produced is an opaque legal justice system.
The opacity in the appointment of judges has allowed for covert manipulation. It has also meant that often the best legal minds are left out of the judicial system. A transparent, fair, and open system of appointment is central to ensuring that people have faith in the legal system, which is essential for functional democracy, doing business, and ensuring development.
Parliament had enacted the National Judicial Appointments Commission Act to do away with the collegium system where judges appoint judges. The law was struck down by the apex court on October 16 last year.
A Supreme Court bench, while deciding on ways to make the collegium system more transparent, had asked the Centre to redraft the Memorandum of Procedure (MoP) in consultation with the states after the CJI had expressed his reservations over the clause in the revised draft.
The MoP is a document which guides the appointment of judges to the Supreme Court and the 24 high courts. At present, there are two MoPs — one for the apex court and the other for the high courts.
The Government had sent the MoP to the SC collegium in March. The CJI had returned the document in May raising objections to the various clauses.
In the meantime, the shortage of High Court judges shortage has gone up from 443 to 470 in 7 months, according to the latest data.
This has come against the backdrop of the executive and judiciary having differences over key clauses of the MoP which will guide future appointments to the higher judiciary.
At the beginning of the year, the shortage was of 443 judges, while in the later part of 2015 it was 392, data available with the Law Ministry states.
As on July 1, the high courts were facing a shortage of 470 judges, with the Allahabad High Court having the maximum vacancies at 82. The Punjab and Haryana High Court is short of 39 judges, followed by Madras (37), Andhra Pradesh/ Telangana (36) and Karnataka (35).
The High Courts of Allahabad, Andhra Pradesh/ Telangana, Kerala, Madhya Pradesh, Manipur, Patna, Punjab and Haryana and Rajasthan are also functioning with acting chief justices.
Soon after taking over as the Union Law Minister, senior lawyer Ravi Shankar Prasad, said he will strive to find a “common ground” between the Government and the judiciary on the issue of appointment of judges to the Supreme Court and the high courts.
Indeed, it is time for change.
The selection process of judges has to be transparent and fair. The junior most judges can be chosen from a national judicial service. Vacancies at all levels-district/sessions court, High Court, and Supreme Court-should be made public, with clearly spelt out eligibility criteria, to enable members from the judicial service and the bar to apply.
All applications must be reviewed by a committee comprising judges of the high court/Supreme Court and the highest law officer, the state advocate general for district/sessions courts and the high court and the Attorney General, for the Supreme Court.
From a short list produced by the committee, the Government should nominate candidates who should be ratified by a multiparty committee of the legislature, state assembly or Parliament, as appropriate. If the legislative committee rejects the candidate, then the next name on the shortlist could be considered. This system would strengthen, rather than erode, judicial independence.
With high courts facing a shortage of 470 judges, the government has forwarded to the Supreme Court Collegium names of 78 persons from state judicial services and the bar recommended by various state collegiums for appointment as judges.
As per the established practice, the high courts send their recommendations to the Centre which, in turn, “processes” the file such as seeking Intelligence Bureau reports on the candidates and forwards them to the SC Collegium for a decision.
After going though the recommendations, the SC Collegium then recommends some of the names for appointment or elevation. The Government, based on its feedback, either accepts the recommendation or returns it to the SC Collegium with a request to reconsider.
Meanwhile, the Chief Justice of India has rejected the government’s move to put in place a committee of retired judges to evaluate the applications of candidates before forwarding them to the collegium to decide whether to recommend their names for elevation or appointment as judges.
Justice Thakur said the committee of retired judges to evaluate the applications by candidates for appointment was unacceptable.
The Government wanted the proposed committee to evaluate the experience of aspirants in detail before making recommendations to the collegium for taking a final call.
While the Government and the collegium were on the same page on having secretariats in high courts to process judicial appointments, the judiciary had earlier opposed defining the role of the proposed secretariat.
Against the backdrop of 470 vacancies in the high courts, 15 HCs have recommended names of 223 candidates for appointment as judges.
The 15 high courts, including that of Delhi, Punjab and Haryana, Allahabad, Karnataka, Rajasthan, Gauhati and Bombay have sent their recommendations to the Centre which will in turn send them to the Supreme Court collegiums.
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