More than 80 dates in a decade-year-old case, the apex court finally sets up a committee to finalise a uniform schedule for selection and appointment of judges in subordinate judiciary.
In April last year, at the inauguration of a joint conference of chief ministers and chief justices of high courts, something very unusual happened. Then, Chief Justice of India (CJI), TS Thakur broke down while making an emotional appeal to the government to help upgrade judicial infrastructure and start addressing the glaring problem of shortage of judges.
On multiple occasions, former CJI Thakur admonished the Central government for its " lackadaisical" attitude in filling up hundreds of vacant posts in high courts. He time and again highlighted the fact that lack of required number of judges in high courts is leading to a huge pendency.
His concern was important but his stress on vacancies in higher judiciary overlooked an important aspect; the extent of the same problem in subordinate judiciary.
According to an Indian Express report on the Supreme Court’s e-committee data released in June last year more than 2.18 crore cases were pending in district courts across the country of which more than 22.5 lakh cases were still in the courts for the last 10 years.
Now consider these facts mentioned in the IndiaSpend report published on Firstpost.
• There is one judge for every 73,000 people in India, seven times worse than the United States.
• On an average, 1,350 cases are pending with each judge, who clears 43 cases per month.
• At the rate cases are handled in the district courts, civil cases will never get cleared, and it will take more than 30 years to clear criminal cases.
In the context of above-mentioned facts, it becomes imperative for the higher judiciary to focus on filling the vacancies in the lower courts instead of just talking about the higher judiciary.
In this regard, an important step was taken in 2007 when the Supreme Court in a case titled Malik Mazhar Sultan fixed a schedule for filling up the vacancies in the subordinate judiciary at all levels. In the order, the apex court fixed the dates for notifying the number of vacancies, date of advertisement, date up to which applications may be made, date of written examination and announcement of results, along with the date of interview and the final result and even date of joining.
The reason behind giving such an elaborate and precise schedule was that Supreme Court found that despite its direction passed in March, 2003, in the 'All India Judges Association' case, an average 20 percent of the existing posts were lying vacant.
The apex court requested the chief justices of each high courts to constitute a committee of judges to monitor and oversee timely selection and appointment of judicial officers in accordance with the schedule fixed by it.
After the 2007 order, the apex court constantly started monitoring the timely appointment and selection of judges in subordinate courts in various states with the assistance of Vijay Hansaria, who was appointed the amicus in the case.
Cases of around five states were taken on specified dates with the presence of registrar general of high courts. The apex court also passed many orders where timely appointments were not made.
However, in spite of all these efforts which included hearing of the case on 80 dates till 14 July 2016, the position remained the same. According to the statistics present on the website of the Supreme Court as on 31 March 2016, against the sanctioned strength of 21,017 judges, working strength is 16,135 leaving 4,882 vacancies, which is staggering 23 percent of the total strength.
The "laxity" shown in the appointments to the lower judiciary has received criticism from the apex court on multiple occasions. In an order dated 28 April 2014, while dealing with state of Karnataka, the apex court observed, "In the instant case, as we have already stated, in spite of lapse of nearly 29 months, the High Court (Karnataka) has done nothing in matter except issuing the advertisement, but without even requesting the state government to issue letters of appointment to those selected candidates. The High Court has not even initiated the selection process to fill up the vacancies for the year 2013-2014."
It added, "If High Courts do not comply with the request made by this Court, by a judicial order we do not know whether an ordinary citizen would think of complying with the orders and directions issued by this Court. In our considered view, the High Court should take a serious note of the request made by this Court and comply it within the time frame that this Court has fixed. This would be beneficial for this institution as well as for the High Courts."
It further added, "This, in our considered opinion, is nothing but a deliberate and willful disobedience of the orders and directions issued by this Court."
Further in its 14 July 2016 order the Supreme Court expressed its serious concern while dealing with the case related to the High Court of Chhattisgarh said, "The process of filling up of the vacancies in different cadres in the State of Chhattisgarh has remained slow and, if we may so, rather lethargic."
It added, "We would, therefore, request the Chief Justice of the High Court to look into the matter personally and ensure that the directions issued by this Court for timely filling of the vacancies and completion of the selection process and complied with. We need hardly mention that it brings no credit to anyone of such large number of vacancies remain unfilled for period of time."
While on 15 July 2016 the Supreme Court directed that the matter will be listed on 23 August 2016 pertaining to the states of Maharashtra, Gujarat and Bihar and directed the registrars of the high courts of all these states to be present for the hearing, the case was not listed.
Following which, after the waiting of more than six months, amicus in the case Hansaria brought the matter before the court of Chief Justice of India JS Khehar and sought an early listing of the case. Following which CJI Khehar observed that a 'committee of judges' has been constituted on the administrative side to finalise a uniform schedule for selection and appointment of judges in the subordinate judiciary which will be applicable throughout the country.
The report is expected by the end of this month.
The concern over the vacancies in the lower judiciary is also reflected in a recent judgment pronounced on 1 February, in case of Imtiaz Ahmad which laid down the guidelines formulating a scientific method for determining the basis for computing the required number of judges in district judiciary.
One of the important factors for delay in disposal of cases is the paucity of judges and as even the sanctioned strength is not filled despite the apex court mentioning the selection and appointment process. It is yet to be seen to what extent scientific method of computing the required number of judges would help when the sanctioned strength itself is not filled.
The lack of required number of judges in the higher courts is a matter of concern as these are the courts where the appeal against the lower courts order are made. These are the courts which has the power to rectify any erroneous judgment by the lower courts. But vacancies in the lower court is even of more concern. In the absence of required strength, which leaves the judicial officers to grapple with huge pendency, making the judge-litigant ratio, one of the worst in the world. And this scenario is fraught with a very undesirable outcome; that of erroneous judgment in some very sensitive cases. And it is a well-known fact that an error at the level of trial court often leads to the miscarriage of justice which even the higher courts find difficult to rectify.
It is high time that the focus is shifted from the vacancies in the higher judiciary to the subordinate one.
Updated Date: Jan 20, 2017 18:52 PM