Judicial Vacancies Choking India's Justice Delivery System

Judicial vacancies stand as one of the most critical challenges facing our judiciary. Reports indicate that as of April 1, five high courts—Allahabad, Punjab and Haryana, Gujarat, Bombay, and Calcutta—alone have 171 vacancies. This figure represents 52 percent of the total 327 vacant positions across the 25 high courts in the country. With a total sanctioned strength of 1,114 judges across all high courts, this means that 29.4 percent of these posts remain unfilled.

The implications of these judicial vacancies are profound and far-reaching. With nearly a third of the sanctioned positions unoccupied, the backlog of pending cases continues to grow, increasing delays in the delivery of justice. This judicial bottleneck undermines public confidence in the legal system, as litigants are left waiting for years, sometimes decades, for their cases to be heard and resolved. Furthermore, the strain on the existing judges increases, leading to burnout and decreased efficiency. 

Justice Madan B. Lokur, a former judge of the Supreme Court, attributes one of the main reasons for judicial vacancies to the reluctance of lawyers to accept judgeship. He elaborates on this issue, stating, “The recommendations made by the Supreme Court collegium are pending with the government. I don't know how many of them are pending, but quite a few of them are. Additionally, some lawyers are reluctant to accept judgeship. Good lawyers are not willing to become judges, which is why high courts are finding it difficult to recommend persons for judgeship.”

Justice Lokur has also been a proponent of 'Swachh Nyayalaya,' advocating for cleaner and more conducive court environments. He explains, “The very fact that you are working in a clean environment with good ambience makes you feel like taking up the job and working. We need to create a good environment in and around the courts to ensure that the environment and ambience is conducive not just for the judges and lawyers but also for the litigants.” 

Justice Lokur emphasises that judicial vacancies are not only hindering justice delivery but also affecting its quality. "It affects justice delivery. If there is a shortage of judges, then who is going to decide the cases? In high courts, 20 to 30 percent of posts are lying vacant, which means productivity has decreased to that extent. This is the same with the district courts. Unless the vacancies are filled with good people, this problem is going to persist."

He further explains, "It’s like a chain reaction. If you don't have a sufficient number of judges, then those judges who are in position have to bear the burden. Their productivity comes down because they have to sit for longer hours. This also affects quality because you need time to make good decisions. Anybody can make decisions, but to make good decisions, you need time. When there is an overburden, how does the judge take out that adequate amount of time to make good decisions for each case?"

India is grappling with more than 50 million pending cases, a staggering number that exposes the gravity of the judicial backlog. This colossal caseload is problematic for several reasons. Firstly, it leads to inordinate delays in the resolution of cases, denying timely justice to millions of litigants. Such delays can erode public trust in the judicial system. Moreover, the sheer volume of pending cases places an immense strain on the judiciary, impeding its ability to function efficiently and effectively. 

Justice Ranjit Singh, former judge of the Punjab and Haryana High Court, believes the primary reason for the vacant judgeships is the lack of a regular intake process for judicial officers at various levels. He states, "The main reason for the vacancies is the absence of a systematic process for the regular intake of judicial officers at different levels, such as sub judges and additional district and session judges. There should be an annual selection process for these posts, based on the vacancies. If this were implemented, there wouldn't be a problem of vacancies at these levels."

Justice Singh highlights the dire state of the judge-to-population ratio in India and its impact on justice delivery. "Our judge to population ratio is too poor. The pendency of cases is so high, and judges handle too many cases filed on a regular basis. In India, the lower judiciary, high courts, and Supreme Court deal with an overwhelming number of cases. This is one reason for the backlog. The population is so large, and the ratio of judges is too small, contributing highly to pendencies."

Sharing his experience, Justice Singh recalls, "While I was a judge in the Punjab and Haryana high court, I was associated with the selection of sub-judges for almost six to seven years. I was on the selection committee. The Supreme Court had changed the system of selection to ensure the purity of the process, delegating the responsibility to the high courts under the aegis of various public commissions like the Punjab Public Service Commission and Haryana Public Service Commission. Three-member judge panels would sit, and I remember that during my tenure, we regularly advertised for vacancies, held examinations under our jurisdiction, and ensured that vacancies were filled through these appointments. However, despite various efforts in different regions in the country, the fact remains that vacancies persist, leading to a situation where judicial officers handle an excessive number of cases. This, in turn, results in delays in the disposal of cases."

Judicial Vacancies Fuel Crisis in India's Courts

Senior advocate Dr. Adish C. Aggarwala, President of the International Council of Jurists in London, Chairman of the All India Bar Association, and President of the Supreme Court Bar Association, addresses the issue of judicial vacancies. He states, "The collegium of the high courts is not sending the names of the lawyers or judges who should be appointed to the different high courts. The rule requires that names should be recommended well in advance, even before the creation of a vacancy. However, I regret to note that the collegium is not sending names for all the vacancies. Sometimes, there are vacancies for 20 judges, but they will recommend only 7 or 10 names, which is not appropriate at all."

Dr. Aggarwala also highlights the lack of consultation with bar councils as a significant issue leading to judicial vacancies. He explains, "The absence of consultation with the bar councils is a major problem. There was an instance where a candidate who was not a lawyer was appointed as a high court judge. Once this was exposed, the Supreme Court decided to implement a specific application form that must be filled out by candidates and supported with documents. If the chairman of the state bar council had been consulted, such issues would not have arisen."

He continues, "The bar should be consulted by the collegium before recommending names. The bar has more comprehensive data than the judges. They receive complaints from different quarters and are more aware of the ground realities. If this consultation process is followed, we could avoid many problems. Additionally, the names recommended by the collegium should be displayed on the website before final recommendations are made. This way, any citizen of India should have the right to recommend names. This level of transparency would greatly improve the selection process."

To address the issue of judicial vacancies, several solutions must be considered. Firstly, there should be a systematic and regular intake process for judicial officers at all levels, ensuring that selections are conducted annually based on existing vacancies. Secondly, the collegium should adhere to the rule of recommending names well in advance of vacancies, filling all available positions promptly. Thirdly, the process of selection must also be consultative and there must be a rigorous overhaul in the system to motivate good lawyers to take judgeship. 

Justice Singh states that the process must be streamlined to fill judicial vacancies. "At the high court level, the system of selection is very tedious. It takes a lot of time to appoint a judge because the process is initiated by the collegium at the high court level, then it goes to the government for clearance, followed by the Supreme Court's recommendation, and then it returns to the central government for various verifications. This process is too time-consuming. The first step should be identifying the vacancies and initiating the process to fill them well in advance. Everyone knows when a judge is going to retire from a high court, so these vacancies should be identified a year in advance, and the process to fill them should be initiated accordingly."

He further suggests, "At the lower judiciary level, vacancies should be identified and filled on a yearly basis to ensure there are no gaps. This regular and proactive approach can significantly reduce the delays caused by judicial vacancies and improve the overall efficiency of the judicial system."

Justice Lokur underscores the gravity of the situation, stating, "The courts have to realise that the system is collapsing. Today we have more than 50 million cases that are pending. There must be a greater effort to reduce this backlog, and that greater effort can come only if the environment is conducive for decision-making. A couple of million cases are there which should not be in courts at all. This has to be weeded out, but it is not done. In the 1990s, an effort was made in the Supreme Court, and a very large number of cases were weeded out. Why can't that be done in the high courts and the district courts?"

Dive deeper with The Probe. For thoughtful analysis and in-depth stories directly to your phone, join our WhatsApp channel. Click and Connect with us Today: [WhatsApp Channel Link] 🔗

At The Probe, our commitment to social impact journalism is at the core of everything we do. Funded by well-meaning individuals from the public, our aim is to drive positive social change and make a real-world impact through the stories we report.

If you wish to support us, please visit our Truth Brigade page and contribute to a cause that resonates with you the most. It is through your support that we have been able to keep the flame of our journalism alive in these difficult times. Click link to support us to make a difference: https://theprobe.in/truth-brigade