Fixing shortage of judges: After deadlines for govt, judiciary must address own role in delays

The SC on Tuesday said the Intelligence Bureau must submit its report within 4-6 weeks, following which the Centre must forward the files to the SC for appointment or state its reservations within 8-12 weeks.

Given the large vacancies of as many as 416 judges in the High Courts against the sanctioned strength of 1,080, it is good the Supreme Court has set a deadline for the Centre to clear appointment of judges. Indeed, it is unfortunate that there is a backlog of over four crore cases pending in courts, 60 lakh of which are awaiting completion in the HCs. With the courts having pared down normal functioning due to Covid-19, and most cases in the lower courts and High Courts pending at early stages of trial, the implications of the shortage of judges are portentous for the pace of delivery of justice.

The SC on Tuesday said the Intelligence Bureau must submit its report within 4-6 weeks, following which the Centre must forward the files to the SC for appointment or state its reservations within 8-12 weeks. Most important, if the SC collegium reiterates a recommendation unanimously, the appointment should be processed and made within 3-4 weeks. Relatedly, the SC has cleared the path for appointment of retired judges as ad hoc judges in high courts where, among other criteria, the vacancies exceed 20%, or more than 10% of the pending cases are over five years old.. While the finer details of whether the SC’s order is outside the memorandum of protocol (MoP) on judges’ appointment agreed upon by the government and the judiciary are debated—the apex court has held that it isn’t— bear is mind, the SC had pulled up the Centre for “sitting on appointments” for as long as five months. But, much as the government is to blame, the judiciary also needs to get its act together. The attorney general pointed out on Tuesday that the Centre had received only 196 recommendations and 220 were pending from the judiciary’s end. The SC may have done well to “note the importance of the Chief Justices of the High Courts making recommendations in time” and emphasise “the requirement and desirability of the Chief Justices of the High Courts … to recommend vacancies as early as possible”, and even reiterate its stand that pending recommendations shouldn’t be an impediment to making recommendations for other emerging and existing vacancies. But, it must not ignore its own role in the delays. Last year, the AG pointed out to the SC that while the government took 127 days to run background checks on judges, the SC took 119 days on average to decide on appointments after receiving the recommendations of the various High Court collegia forwarded by the law ministry. Similarly, high-court collegia must also share responsibility for the vacancies in the district courts.

For their part, the Centre and the states not only need to move on speeding up judicial appointments, but also resolve infrastructure problems; if the entire sanctioned strength for the judiciary were to be appointed, the country will need 3,343 more court halls. They must also set up more effective alternate dispute resolution mechanisms for civil cases that clog the courts. The government being the largest litigant, must drop its litigation-happy approach to ensure that pendency-judges-shortage problem doesn’t get worse.