Context: A report tabled in Parliament by the Standing Committee for the Ministry of Law and Justice has details regarding the status of judicial appointments in the high courts. It should be commended for the transparency it has induced in the process.

Details of Report:

• High courts currently have a sanctioned strength of 1,080 judges and are working with only 661 judges, leaving 419 posts vacant.
• This approximates to a 39 percent vacancy and is a worrisome figure given the level of pendency in the courts in India.
• This is despite the fact that the Department of Justice has been publishing monthly statistics regarding the status of vacancies in each high court.
• The report pointed out that as against 419 vacancies in the high courts, 211 recommendations were yet to be received from high court collegiums.
• Overall, the Allahabad High Court has the most number of vacant posts (64) followed by Calcutta (40) and Punjab and Haryana (37).
• The report also identified that out of the total 208 proposals received by the Department of Justice, 92 proposals (44.23 per cent) were pending clearance with the Supreme Court Collegium and 116 proposals (55.76 per cent) are with the Department of Justice for examination.
• Interestingly, of the total 116 proposals pending with the Department, 48 proposals (41.37 per cent) are awaiting clearance from the Intelligence Bureau.

Appointment Provisions:

• The appointment of the judges to the high courts is governed by Article 217 of the Constitution.
• In addition to the constitutional provisions, the process of appointments outlined in the Memorandum of Procedure (MoP) is a lengthy one.
• It is initiated by the Chief Justice of the concerned high court who recommends the nominees to the state government. Ideally, this process should begin six months prior to the occurrence of the vacancy.
• It appears from the data released by the Standing Committee that some vacancies are as old as 2015 and the department has not received a recommendation against the post.
• The state government then sends the recommendation to the Union Law Ministry, which then sends it to the Supreme Court Collegium.
• It is a cumbersome procedure and while timelines for certain stages are contemplated in the MoP, they are rarely adhered to in the absence of an overall time limit for the completion of the process.

Other Issues:

• Productivity and Strength:
  • It is assumed that a court working at full strength will be working productively. However, we currently do not have any way to measure the productivity of individual judges and the courts.
  • Judge strength in India has been expanded in an ad hoc manner and there is little transparency regarding the parameters that are considered for these important calculations.
  • A rational method based on strong empirical criteria such as litigation patterns of the state, the volume of pendency and the current disposal rates of judges amongst others should be devised and adopted by the judiciary for all the tiers.
• Composition of the higher judiciary:
  • While data regarding caste is not available, women are fairly underrepresented in the higher judiciary.
  • The Standing Committee in its recommendations has asked the Department of Justice to submit its considered view on making the higher judiciary more inclusive.

Conclusion:

The Standing Committee has identified the right issues, however, a deeper conversation on the norms governing judge strength and the composition is long overdue.

https://indianexpress.com/article/opinion/columns/judicial-appointments-high-courts-ministry-of-law-and-justice-7240327/

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