5 min readMar 23, 2021 08:53 AM IST
First published on: Mar 23, 2021 at 03:19 AM IST
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.
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 per cent 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. Of the 211 vacancies for which the appointment process has not begun, the high courts of Punjab and Haryana, Allahabad, Delhi, and Gujarat, are yet to send recommendations for 30, 27, 23 and 21 posts respectively. 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.
The Standing Committee has instructed the department to request all the stakeholders including the high court collegiums to expedite the appointment process.
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.
It is important to note that the Supreme Court has been monitoring the vacancies in the district judiciary. It had prescribed timelines for the selection of judges at the state level in Malik Mazhar Sultan v UP Public Service Commission in 2006. In October 2018, the Supreme Court took suo motu cognisance of the vacancies in the district judiciary and asked state governments and high courts to file status reports with regard to the status of judicial vacancies and physical infrastructure in the states and it has been monitoring the selections since.
While this monitoring might be well intentioned, by focussing solely on the judicial officers at the district level, it has overlooked the delay in filling the high court vacancies.
The other issue with focusing disproportionately on vacancies is that it eclipses deeper questions regarding the way the sanctioned strength has been calculated in the first place. 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. We currently do not know if it is revised periodically or who is in charge of the revisions. A well-functioning legal system depends on an accurate calculation of judge strength. 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.
The other area of concern is the 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. The Standing Committee has identified the right issues, however, a deeper conversation on the norms governing judge strength and the composition is long overdue.
This column first appeared in the print edition on March 23, 2021 under the title ‘Just not about vaccancies’. Jain is a research fellow at Vidhi Centre for Legal Policy
The Standing Committee has instructed the department to request all the stakeholders including the high court collegiums to expedite the appointment process. 
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