This article has been written by Ria Verma, a student at Symbiosis Law School, NOIDA. This article aims to critically analyze the procedure for being appointed as a judge and why there are a high number of vacancies in the subordinate courts.

Introduction

There have been 2.72 crore pending cases and many individuals desperately awaiting a verdict. Some cases have been ongoing for the past two or three decades. These cases indicate that a major reason for the delay and backlog is the astonishing increase in the number of vacancies in the judiciary every year.    

The recruitment process in the High Courts has seen a significant decrease from 108 judges getting appointed in 2018 to only 66 appointments made in 2020. Similarly, vacant positions are seen in subordinate countries all across the country. The sanctioned strength for judges amounts to a total of 1,098 out of which 454 are empty. 

The total vacancies in the subordinate courts add up to 5,132 indicating the failure of the HC Collegiums to appoint and elevate judges in the stipulated period. The issue has been further elevated with the onset of the pandemic, forcing the Courts to adapt to the electronic format of delivering verdicts. 

In the past 12 months, only 7 out of 66 vacancies in Allahabad High Court have been filled. The figures are astonishing and action must be taken at the earliest to fill the gaps. The Courts take a very long period of time along with heavy litigation costs that have to be borne by the petitioners. Constantly delaying justice is synonymous with denying justice. 

Qualifications required to be appointed in subordinate courts

Certain qualifications are required for an individual to be appointed in the subordinate courts of the country. 

For a civil judge at the junior division, previously candidates were directly recruited through the judiciary exam that consists of 3 phases – preliminary examination and the main examination followed by an interview. It is commonly observed that candidates who become a part of judicial services as civil judges retire after getting elevated to the status of a district judge. However, Justice M. Faathima Beevi, the first Muslim woman to be elevated in the higher judiciaries serves as a figure of inspiration for civil judges to reach even taller heights. Based on seniority as well as merit, the junior division judges are promoted to the senior division. It is generally observed that a minimum experience of 5 years is required to be elevated. 

A recent notification by the Bar Council of India deliberated upon altering its previous order that removed practical experience as part of the eligibility criteria for judicial officers. They filed an application seeking to modify the order given by the Supreme Court in All India Judges Association v Union of India, 2001 wherein mandatory practical knowledge was removed for the eligibility criteria. Now, a minimum of three years of experience at the Bar is mandatory to appear for the judicial examinations. 

The Council stated that one of the key reasons for the delay in disposing of cases in the subordinate courts was inexperience. The report stated that 7,492 experienced judicial officers could resolve cases in a shorter period of time leading to the efficient administration of justice. 

This move was refuted by the legal fraternity and it was widely argued that the most effective long-term solution to deal with the pendency of cases would be appointing more judges. It was also argued that the financial support provided by the bar council is inadequate especially for first-generation lawyers with no connections. An enrolled advocate has challenged this move and it is currently pending in court. 

The senior division judges are elevated to the status of the district judge on the same grounds. However, they can also be promoted based on their scores in the examination held for civil judges in the senior division. 

According to Article 233 of the Constitution of India, an individual requires:

1. To be a practicing advocate for a minimum tenure of seven years
2. To not be employed in Union or State services
3. To receive a recommendation from the High Court for the purpose of employment

The appointment procedure for judges in the High Courts was under scrutiny very recently. The Union Minister of Law and Justice explained that the process is a collaboration between the judiciary and the executive. Prior approval and consultation of the constitutional authorities are essential at both the State and the Central level. 

Recruitment procedures

The procedure of recruitment of additional Judges 

Article 224A provides the provisions for appointing retired judges. After obtaining the consent of the President, the Chief Justice of a High Court of any State requests a previous Judge of that particular state’s High Court or any other High Court, to act as a Judge. 

The Supreme Court had given an outline of certain guidelines to appoint an ad-hoc judge. This was done to tackle the problem of a high number of unresolved cases in the High Courts. The ad-hoc judge would be considered as the junior-most and would be appointed when the status of the case remains pending even after 8 to 10 years. The retired judges would be appointed based on their competency and proficiency in that particular domain of law. The tenure of the judge is extendable. 

Procedural issues that lead to delay in appointments

1. Complex procedure

The complex framework and provisions for appointing a judge result in delays in appointing judges. Even after following such cumbersome procedures, incompetent judges are reappointed which further hinders the justice delivery mechanism.

2. Lack of transparency

There is a lack of transparency coupled with an absence of formal criteria in the procedure involved for appointing judges. It has been alleged that there are conflicts between the individuals appointed and the members of the collegium. There is no information disclosed on what criteria the collegium appoints candidates. 

3. Inadequate representation

There is a ‘known but hidden’ criteria for the appointment of judges and includes parameters such as caste, religion, class, family background, political connection, representation from a legal/judicial dynasty etc. Due to these parameters, certain sections of the society are favored more and the structure of the collegium inadequately represents the diversity of the population whom it seeks to deliver justice. Recently, Saurabh Kirpal could become India’s first openly gay judge after being recommended for elevation by the collegium, after being denied elevation for four years. 

4. Slow process

A number of factors from the performance of the candidate to their previous record and their integrity are taken into consideration. All these factors need to be accounted for before making a recommendation. The Chief Justice has to keep a hawk-eye on the potential candidates and a few months are spent to know the competent lawyers.  

Malik Mazhar Sultan case

In this case, Malik Mazhar Sultan, 2008 had filed a petition against the Union of Public Service Commission (UPSC). The prominent issue brought to the Court’s attention the validity of the procedure for recruiting Civil Judges (Junior Division). According to the U.P Judicial Services Rules 2001, for a candidate to be eligible, they must have attained a minimum age on the day of giving the exam. Even though the case related to Uttar Pradesh, the ingrained problem of an avalanche of vacancies in the judiciary was common to every state. 

A bench headed by CJI Y K Sabharwal pointed out that the vacant seats in the judiciary were the primary reason for the avoidable litigation of the case and also caused anxiety to the candidates appearing for the judicial exams. The public at large is deprived of their right to access justice. 

1. The Court emphasized formulating a mechanism to facilitate the swift appointment of judges at all levels. It is crucial to take prompt steps after determining the number of vacancies by putting up advertisements, declaring the results of examinations conducted and issuing an order of appointment. 
2. A time period must be stipulated to avoid delays in filling up the vacancies. A similar pattern to that of medical colleges filling up seats for admission can be adapted. There must be strict adherence to every step involved in the procedure of appointment. The only exception would be when there is a shorter number of vacancies in a particular year. 
3. All the State and Union Territories Governments and the High Courts (as applicable in a given case) were given directions to ensure that vacancies are promptly filled. 

However, we can infer that the guidelines were not efficiently implemented considering the high number of vacancies in the courts even today. The current framework for appointing judges does not allow states to recruit deserving candidates in a short period of time. 

A study found that seven states in the country abide by a two-tier recruitment system. In the past decade, it had taken an average of 196 days to complete the first cycle of recruitment and directly appoint district judges enrolled in the bar. On the other hand, the states that abide by a three-tier system take about 336 days to complete the first cycle. Both the systems have breached the stipulated period of 153 days and 273 days that was laid down by the Supreme Court in the Malik Mazhar Sultan case.

Why are there so many vacancies in Indian courts?

1. Systematic defects

Systemic defects in the appointment process are a major reason for the larger number of vacancies in the lower judiciary. Exams are not conducted regularly and even when they are conducted in a regular manner, the High Court faces difficulties in finding sufficient numbers of eligible candidates to fill the vacancies. 

2. Procedural delays

There have been delays in calling for applications, conducting examinations as well as declaring the results. Funds are not allocated efficiently to accommodate the newly recruited judges and magistrates. 

3. Poor coordination

Unclear recruitment procedures, and difficulties in coordination between the High Court and State Public Service Commission, also frequently give rise to disputes and litigations surrounding recruitment, further stalling the process of recruitment.

4. Inadequate budget allocation

A very small percentage of the budget is allocated for the judiciary. Approximately 12,000 crores are spent annually which is merely 0.01% of the GDP. 

5. Poor infrastructure

From the courtroom to the residences, the infrastructure is poor and inadequate to accommodate the newly appointed judges and magistrates.

6. Delay in appointment

The recommendations from the Collegium are not made on time and remain pending with the government for years. 

Issues with the procedure adopted by the High Courts

There are 3 major issues in regards to the procedure adopted by the High Court to appoint suitable candidates: 

1. Lack of specific authorities

The High Court has the responsibility to appoint suitable candidates along with the State Public Service Commission. However, there is no mention of the composition or the functions of the specific body in place to conduct the recruitment process. A study revealed that the rules of conducting the examination do not specify roles and responsibilities on an individual basis. This leads to a lack of accountability in the process. The functions of the committee members are not clearly designated. The duties held by individuals are subject to specific rotation. 

2. Ad-hoc procedures

The examinations are uncertain and not conducted yearly. Candidates are anxiously left waiting for the result of the exam. Therefore, the current system is quite ad-hoc. 

3. Lack of grievance redressal mechanism

There is no existing mechanism for resulting in the grievances experienced by candidates. An example of such a problem is the incorrect options to a question. Also, there is no provision in place for re-evaluating the answer sheets of the candidates. 

Is the judiciary equally responsible as the government for recruitment?

According to a study, the judiciary along with the government has played a vital role in the increasing vacancies in subordinate courts every year. The Supreme Court recently took suo moto cognizance of the vacancies and inadequate infrastructure of the district judiciary.  As for the high courts, the collegiums of various high courts have not recommended names on time. 

The Memorandum of Procedure (MoP) had made it binding upon the high courts to recommend appropriate candidates at least one month before a place is left vacant. But there is still a mounting number of vacancies in the country. Many vacancies have been left for over five years.

The delays are mostly observed due to procedural issues or due to a lack of appropriate candidates. However, it is observed that for no proper justification, the government stalls the candidates from being appointed. 

Comparisons with other jurisdictions

On applying the demographic standard of 50 judges per million population, 60,530 judges would be required to reach the ratio with the current population of 1,210.6 million. The current ratio is 18 judges per million that shows that the Indian judiciary is quite under-staffed. 

On the other hand, other countries have a much higher judge-population ratio. The U.S. Judiciary (solely at the trial courts) has about 102 per million, Australia has 48 per million, England and Wales have 56 per million. A comparative analysis with China is more suitable as they are almost as populated as India- they have 147 judges per million. The highest ratio is as compared to the rest of the countries listed below. 

In 2008, Malaysia had similar pendency rates as India has today. They adopted a number of measures such as Court Backlog and Delay Reduction programs that contributed to alleviating the issue. Mediation, an automated case management system, the creation of new courts, and their capacity building were part of these measures.  

In Sweden, the population size is very low as compared to India however, less than a third of cases are pending before the courts every year. About half of the cases are dealt with by special courts for litigation with authority or litigation on rent and tenancy. An active role is played by the ‘lay judges’ in ensuring the swift disposal of cases. 

In Indian courts, pendency is highest in civil matters in benchmark jurisdictions. There is an immediate need to create more posts at the judiciary and for support staff, and to have adequate infrastructure to reduce the number of cases. Access to justice should be pursued with as vigor as any other service that the State is bound by the Constitution to provide to the people. Justice should be provided in a reasonable time, at an affordable cost, and at a reasonable distance.

Impact of vacancies- rising pendencies of cases 

The Indian judiciary has been under constant strain because of startling figures of unresolved cases before them. The figures constantly deter citizens from approaching the courts to resolve their disputes. Anecdotal evidence and popular memes of “tareekh pe tareekh” are constantly seen being circulated on the internet. 

The following reasons have been cited as the reasons for the pendency of cases in the Indian courts:

1. Inherent change in litigation patterns

Traditionally, civil litigation would arise mainly from disputes related to partition, money claims, mortgage suits, adoptions, rent suits, and other such claims. There has been a decline in the number of such claims; however, a sea-change can be said to have occurred in the pattern of litigation. With the change in the concept of the State functions, restrictions on money lending, control over any form of economic activity, agrarian reforms, control on industrial enterprises, taxations to prevent concentration in the wealth of a few, improvement in the conditions of laborers and workers and, the various amendments and changes in matrimonial and personal laws have changed the scope of litigation. 

A number of reforms both social and economic have taken place accompanied by a delegation of legislature’s powers in the form of rules, orders, regulations, and bye-laws. There has been a sharp increase in the number of laws affecting the rights of individuals and corporations. Whether a law can be executed is openly challenged in the courts giving rise to issues on the validity of the enactment and the extent of the legislation, along with the powers of the executive. 

2. Increase in legislative activity

With an exceptional increase in the state, parliamentary, subordinate, and delegated legislation there has been a tremendous increase in the number of cases. There has been a continued proportionate rise from the increase seen in the period between 1950 to 1970 wherein almost 1,000 acts and 6,358 statutes were passed by the State Legislatures. The interpretation of the various provisions, as well as questions to their validity, occupies a great time of the courts. Another issue that arises is whether the provisions are in lieu of the provisions of the Constitution. Even the competence of the legislation whether enacted by the State or the Parliament is put in issue owing to the federal nature of the Constitution. 

3. High number of election petitions

Recent amendments made to the Representation of the Peoples Act in 1966 have added the number of files in the High Courts. It involves another form of litigation involving tedious and widely contested trials. A huge number of election petitions are filed in the wake of every parliamentary election and the State legislatures. The provisions of the Act make it mandatory for the petitions to be heard by High Courts as the Court of Original Jurisdiction and the cases have to be swiftly disposed of in tenure of six months, At present, the High Courts are quite ill-equipped to carry this burden and it is rarely seen that the parties were amicably able to resolve the dispute and come to a settlement. There have been cases where the parties wished to have 1,000 witnesses examined along with a high volume of evidence that was submitted on the record. There has been a major contribution of these petitions in accumulating arrears in the High Courts. 

4. Clogging of First Appeals

In every High Court, there is a huge backlog of First Appeals; some have been awaiting a verdict for more than two decades. It is observed that a root cause of this backlog is the continuous decline in the value of the rupee. The purchasing power has reduced to a fraction of what it used to be a few decades back. There has been a sharp increase in the prices of commodities and immovable properties. A high number of disputes have reached the courts through first apparels on transactions of commodities and immovable properties. This was not the scene a few decades back due to a low monetary value attached to the commodity. The courts are far behind in keeping up with the rapid changes of the economy and the inflationary spiral. 

5. Burden of ordinary original civil jurisdiction in some High Courts

With the present pressure of cases faced by the Courts, the ordinary original civil jurisdiction is quite anachronistic. Six High Courts exercise this particular jurisdiction in specified areas and are burdened with a huge load of original trials which they cannot possibly carry today. India’s population and dimension cannot possibly afford the luxury of having trials in the superior courts

6. Insufficient strength of Judiciary

The judge strength of the High Courts has been fixed at 650 main cases per judge. The high number of election petitions filed after every general election, the delegation of Judges for Commissions and, the time lost on inspection of the subordinate courts, holidays, and medical leaves;  are not accounted for. 

Impact of pendency

There are negative implications caused by the pendency of cases to the administration of the justice system. According to South African Chief Justice Mogoeng, there are 6 consequences:

1. Exorbitant legal costs have to be borne by the litigants due to constant delays.
2. Quality of justice is affected due to the witnesses being unable to recall the exact events over time. 
3. Witnesses and defendants absconding before the next hearing date arrives. 
4. Offenders get opportunities to repeat the offences committed
5. The effectiveness of the justice system is undermined in the eyes of the public.
6. Economic losses are suffered by the parties. 

A number of studies conducted all across the world suggest that the efficiency of the judicial system has a direct relation with the optimal functioning of the economy. Interest rates are affected positively with improvement in the efficiency of the judicial system and inflation. A judiciary that upholds the rule of law and gives access to justice to every citizen reduces borrowing and lending costs. 

Conclusion

The Judges are the most significant part of the judiciary. They must be competent to handle issues that arise every day. The subordinate courts and the government must work together to address the pressing issue of vacancies. A large number of citizens are deprived of access to justice. With the onset of the pandemic, it was seen how the health system failed miserably and the economy declined. The judiciary is not far behind if vacancies are not filled in time. 

In my opinion, a permanent, autonomous body must be instituted to look after the appointment of judges and deal with the grievances that are faced by the candidates. The Collegium can provide a list of possible candidates along with their experience, suitability, etc. instead of selecting some judges to meet the vacancies. A higher number of cases are being filed as the citizens get to know about their rights. The establishment of All India Judicial Services (AIJS) would ensure an efficient subordinate judiciary and fill vacancies in a shorter period of time. 

The courts constitute the backbone of our judiciary and the collegium must strive to ensure its smooth functioning with zero empty spots. 

References

1. https://timesofindia.indiatimes.com/india/supreme-court-judges-vacancy-to-touch-29-with-two-more-retiring-next-month/articleshow/84854242.cms 
2. https://lawsikho.com/blog/what-is-the-career-trajectory-of-a-judge-in-the-lower-judiciary/ 
3. https://scroll.in/article/862475/what-is-to-blame-for-the-mounting-shortage-of-district-court-judges-in-india 
4. https://www.thehindu.com/opinion/editorial/a-crippling-shortage/article25521118.ece 
5. https://www.firstpost.com/india/recruitment-process-to-indias-lower-judiciary-needs-urgent-overhaul-as-it-lacks-statutory-authority-grievance-redressal-mechanism-5903911.html.

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