Judiciary equally responsible for judicial vacancies

Judiciary equally responsible for judicial vacancies

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A lot has been said about increasing the strength of judiciary in order to combat the pendency of more than 3 crore cases in various courts in India [also see: (1) The illusory right to speedy trial (2) Have we done enough for women’s security? (3) Confusing signals from SC on expeditious criminal prosecution of sitting MPs and MLAs; for discussion on this issue]. Recently, it was reported in the media that the Chief Justice of India T.S. Thakur broke down in presence of the Prime Minister Narendra Modi for Government’s inaction in raising the number of judges. Various numbers have been suggested for the number of judges needed to eradicate the huge pendency of cases, ranging from twice of the present strength to about 5 times the existing strength.

No doubt, the Government is fully responsible for being negligent in increasing the judicial strength. Not only the State Governments but also the Central Government is responsible for this. Moreover, notwithstanding the fact that the Modi Government came into power only about 2 years back, it is also equally responsible for the lack of judicial strength since 2 years is not a small period and nothing much has been planned so far. Of course, previous Governments at the Centre (who ruled for last more than 60 years) must share the lion’s share of the blame for insufficient judicial strength that has led to a huge pendency of cases.

But, the question arises as to whether judiciary is not responsible for this sorry state of affairs? There are two parts of the story. The first is the need for increase in the strength of judiciary, i.e., the number of judges. The second is the filling up the existing vacancies in judiciary. No doubt, for the first part (i.e., increasing the number of judges), it is the Government which is to be blamed. But, for the second part (i.e., filling up the existing vacancies in judiciary), the blame lies equally with the judiciary. Let’s see how.

As per the latest figures available about the vacancies in courts in India, as of today (31 May 2016) there are 2 vacancies in the Supreme Court out of a sanctioned strength of 31 judges. In high courts in India, there are 433 vacancies out of a sanctioned strength of 1065 judges as on 1 May 2016. And, there are a total of 5074 vacancies from out of the total strength of 20495 judicial officers in the District and Subordinate judiciary as on 30 June 2015. Thus, there are about 40% vacancies in the positions of high court judges and about 25% vacancies in posts of judicial officers in the lower level judiciary.

Let us first discuss the vacancy position in the lower judiciary. The process of selecting judicial officers at the lower level is handled by the respective high courts in most of the states. It is the high court which notifies vacancies and then conducts examination for selecting judicial officers (such as civil judges / magistrate / district judges). After selecting personnel for these posts, the high court recommends them for appointment and the appointments are then made by the Governor of the state concerned. Now, the question arises as to why the high courts are slow in conducting examination and selecting judicial officers at the lower level? Why should there be 5074 vacancies from out of the sanctioned strength of 20495? When this strength is already sanctioned by the concerned Governments, that means the high courts are free to select candidates for these posts (or promote them, wherever relevant) within these limits. No doubt, there is a need to create more posts in judiciary, but what is the excuse for not filling up these 5074 vacancies? Why can’t things be planned in advance (looking at the existing vacancies and the likely retirements in near future) so that suitable candidates are selected well in time to fill up the vacancies? Since out of 20495, only 15421 judges are working, this means an addition of 5074 judges against the existing vacancies in lower judiciary will increase its working strength by about 33%, which is not a small number. Therefore, the judiciary has to be blamed in equal measure for not doing the needful to ensure that sufficient number of judges are actually working in lower judiciary.

Now, come to the vacancies in the high courts. There are 433 vacancies. But, as per the latest figures available in media, files relating to appointments of only about 100 or 150 judges are pending with the Government at different stages of the process. For remaining vacancies, the recommendations are yet to be made by the Supreme Court collegium. So, again, while the Government is to blame for vacancies in the positions of high courts, the judiciary also has to share a part of the blame. In fact, even in the past, there was always a backlog in the number of recommendations made by the collegium for appointments as high court judges vis-à-vis the number of vacancies.

Therefore, it is for judiciary to set its own house also in order. At the cost of repetition, this does not mean that there is no need for increase in the strength of judiciary. The strength needs to be at least doubled immediately, if not more.

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