Even after six months have lapsed since the chief justice of India emotionally pleaded for filling up the vacancies in courts, the government is sitting over the names cleared by the Supreme Court, undermining the agony of judiciary.
Recently, after the apex court spoke of scuttling and decimating the institution of judiciary, only 10 names have been cleared for appointment. This was despite Supreme Court taking exception to the Center cherry-picking the names recommended by collegium.
The logjam that started in August 2014 between the government and the judiciary has become complicated over the period of time. In August this year, the apex court had to warn of judicial intervention if the impasse is not broken. The warning came after the government’s response to the objections of the collegium in the memorandum of procedure (MoP) regarding who shall have the final say in selection and rejection of names. Since then, both the parties are yet to agree on the MoP to proceed further on the appointment process.
If the timeline of the matter is of any indication, it is clear that the government has decided to confront the judiciary on MoP notwithstanding its reservations. Also, there seems to be no hurry to fill the existing vacancies. On the other hand, Supreme Court is not ready to accept the clause in the MoP that gives the Center a veto like power to reject any recommendation of the collegium even after it has been reiterated.
At present, India has 10.5 judges per million population, one of the lowest in the world. In 2014, the Law Commission in its 245th report had suggested that there should be 50 judges per million. The recommendations of the Law Commission are still in cold store. There is not a single word from the government regarding consideration of the recommendations or otherwise. In the monsoon session of Parliament, the government had admitted of 475 vacancies in various high courts of our country. Allahabad High Court tops the list with 82 vacancies followed by high courts of Hyderabad, Bombay and Calcutta.
Situation is not comfortable in lower courts either with nearly 5,000 vacancies. The last time the sanctioned strength of the lower judiciary was increased was in 2012 when an additional 2,787 posts were created by the UPA government. So, by any rational standard, the judiciary in India is undermanned. Even the fast track courts are suffering from manpower shortage. With this crunch in human resource, the judiciary is fighting with the herculean task of clearing 3.2 crore pending cases, the figure expanding with each passing day. Just the high courts alone have more than 38 lakh cases pending for judgement.
Such vacancies are not only affecting speedy disposal of cases but also affecting quality of justice as well. A study conducted by a Bengaluru based NGO Daksh found that high court judges in India are getting an average 2.5 minutes to hear case and an average five to six minutes to decide a case. Nothing can be better calculated to destroy the sanctity of the institution than the prevailing situation. In the mutual distrust between the executive and the judiciary, the common man is losing trust on the both.
The delays have the potential to make matters worse. It impacts the whole system. We should not forget that 68 per cent of the inmates in Indian jails are under trials. They are in jails because they cannot afford the bail amount. They belong to the poor and marginalised sections of society. Over 55 per cent of the under trials are dalits, tribals and minorities. Approximately 5,000 persons with mental disabilities are languishing in various jails in India.
There is an imperative on the part of the government to break the deadlock so that the vacancies in judiciary are filled up without any further delay and the health of the judiciary is recovered before it gets paralyzed. Besides, additional courts must be created and additional judicial officers must be appointed till the backlog is cleared. Ad hoc judges under Article 224A of the Constitution should be appointed to clear the backlog in the high courts for a period of five years or till the backlog is cleared. All the cases which are pending in the high court for two years or more can be allocated to these ad hoc judges. Since the annual institution in high courts as well as in subordinate courts exceeds their respective annual disposal, additional judges in high courts as well as in subordinate courts should be appointed on permanent basis to deal with the increase in institution over the disposal.
Another important aspect that has been repeatedly pointed out by the apex court is litigations by government. Being the largest litigant, it should reduce the burden on the courts. The structural gaps in the judiciary need to be fixed. The infrastructure in courts should also be rebooted. The state governments concerned should also expedite filling up the vacancies in lower courts.
An independent and effective judiciary is the very heart of a republic. Judicial reform, in accordance with contemporary needs and challenges, is necessary. We also need more women judges. After 70 years of independence, women constitute less than 10 per cent of judges in high courts. Access to justice is a fundamental right. State cannot disown the responsibility it shares with the judiciary to deliver an efficient and accessible justice system to the people of India.