Flooded with over 250 writs of habeas corpus seeking quashing of preventive detention, and the state just a month away from being split into two Union Territories, the two wings of Jammu & Kashmir High Court, overburdened with litigation, are functioning with just nine judges against a sanctioned strength of 17 judges.
On two separate occasions this year, Chief Justice of Jammu & Kashmir High Court Gita Mittal forwarded seven names to the Supreme Court Collegium to fill the vacancies, The Indian Express has learnt. Not a single appointment has been made till date.
While the Supreme Court, hearing petitions related to the Valley, has sought reports from Justice Mittal on access to justice in the High Court — at one hearing this month, Chief Justice of India Ranjan Gogoi called it “a serious matter” and said “if required, I will go personally and check” — the Collegium is yet to fill the vacancies in the High Court.
Of the nine judges in the High Court, only two judges have been assigned to hear the writs of habeas corpus in the Srinagar wing.
In March this year, the High Court Collegium, headed by Justice Mittal, forwarded four names to the Governor and the same was marked to the Supreme Court Collegium, according to the standard procedure — of two advocates from Jammu, Rajnesh Oswal and Rahul Bharti, and two advocates from Srinagar, Moksha Kazmi and Javaid Iqbal Wani. And in July, another set of three names — Registrar General of Jammu & Kashmir High Court Sanjay Dhar and two others from the lower judiciary Vinod Chatterji Koul ,and Puneet Gupta — was sent.
According to procedure, the proposal for appointment of a judge of a High Court is initiated by the Chief Justice of a High Court, and the copy of the Chief Justice’s proposal is sent to the Governor, and also endorsed to the Chief Justice of India and Union Minister of Law & Justice. The complete material, including the Governor’s recommendation and intelligence reports, are then placed by the Law Ministry before the Supreme Court Collegium which takes the final call on recommending names to the President for appointment of judges.
While the Supreme Court Collegium is yet to take a final call on the names recommended by the High Court Collegium — the last fresh appointment made to the High Court was on August 7, 2018 when District Judge Rashid Ali Dar and advocate Sindhu Sharma were elevated as permanent judges.
While appointing Dar and Sharma, the government had returned for reconsideration the appointment of former Senior Additional Advocate General Wasim Sadiq Nagral. On January 16 this year, the Supreme Court Collegium had then asked the government to “furnish specific information” on the basis of which the proposal for elevation had been returned. It has been over nine months since and the appointment of Nagral remains pending.
Also, in 2018, two judges were transferred to Jammu & Kashmir High Court. But this year, not a single judge has been sent to the High Court. The last transfer was effected on November 19, 2018 when Justice Rajesh Bindal, from the parent High Court of Punjab & Haryana, was transferred.
Currently, excluding Chief Justice Mittal, there are only eight judges for the two wings in Jammu and Srinagar. Even here, the situation on ground is somewhat different. According to sources, Justice Sanjay Kumar Gupta, who is undergoing medical treatment, is on medical leave from July 1. Moreover, in November, the High Court will witness a further drop in its strength after Justice Rashid Ali Dar retires — it is due on November 17.
Given the shortage of judges, urgent measures are being adopted, as is evident from the official roster of the High Court. In the first half of the day, the Srinagar wing of the High Court has only one division bench comprising Chief Justice Mittal and Justice Rashid Ali Dar; and two single-judge benches — one under Justice Ali Mohammed Magrey and another under Justice Sanjeev Kumar. The division bench hears matters related to criminal appeals, tax matters and PILs. And the two single-judge benches hear criminal and civil writ petitions, including the writs of habeas corpus. In the second half, all four judges sit separately on four single-judge benches.
Similarly, in Jammu, the division bench of Justices Rajesh Bindal and Dhiraj Singh Thakur sits in the first half of the day; and two single-judge benches, under Justice Tashi Rabstan and Justice Sindhu Sharma, sit in the first half of the day. In the second half, all four judges sit separately on four single-judge benches.