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Thursday, May 13, 2021

Revise judges’ appointment process to build judicial capacity

None of the public deliberations on the issues plaguing the judiciary acknowledges that the institution refuses to change the way it functions and takes comfort in institutionalised opacity


April 20, 2021 9:41:07 pm
Supreme CourtIn response, the Centre has said that of the 416 vacant posts, no recommendations have been made by HC Collegiums for 220 posts.

Written by Prakhar Misra and Shreyas Narla

Last month, the Supreme Court asked the government the status of the 55 recommendations on judicial appointments made a year ago. And, last week, the collegium met to appoint five Supreme Court judges but postponed the decision to a later date. These delays have further strained judicial capacity, especially in India’s high courts. As reported, the Patna High Court is operating at 60.3 per cent of sanctioned strength, the Calcutta HC at 55 per cent, Rajasthan HC at 54 per cent, and the Madhya Pradesh HC at 52.8 per cent. Given the pendency rates, why isn’t judicial capacity a priority? And why can’t budgeted and sanctioned positions be filled swiftly? The blame squarely lies with the judiciary for not reimagining its processes and procedures to build capacity.

First, while India needs more judges, how many are enough? The Supreme Court has implemented the weighted caseload method for subordinate courts — where disposal of cases is weighted by the nature, complexity of cases, local conditions and a performance evaluation system. For the higher judiciary, the process is opaque. In 2014, the Chief Justice of India had given an “in principle” agreement to increase the strength of the high courts by 25 per cent. A few states implemented this, which increased the total capacity to 1,080 sanctioned posts. But the precise method of calculating required capacity is unknown.

Second, the process of appointing judges is completely opaque and evolving. The reason is that appointments are no longer based on the constitutional provisions (Articles 124 and 217) or the 99th constitutional amendment setting up the NJAC, which was struck down by the apex court. In 2015, the Court ordered that an extra-constitutional document called the Memorandum of Procedure (MoP) be put together to prescribe the manner in which the judicial collegium would pick the appointees. This document, however, remains unfinalised till date. Though several constitutional provisions allow the Supreme Court collegium to appoint ad-hoc judges and arrange for stop-gap measures, these options are seldom leveraged.

Further, even before the proposed MoP, the original collegium decisions since 1999 have never followed a specific procedure. The high courts are required to recommend names six months prior to an anticipated vacancy. However, High Courts have rarely initiated the proposals within this time-frame and there are instances of six-year delays in filling up vacancies. On the other hand, for the Supreme Court, there is no prescribed time-frame to begin appointment proceedings. Thus, on average, appointments to the Supreme Court take 41 days and appointments to the high courts take between 5-7 months.

Third, the current appointment procedure is completely discretionary. Barring the qualifications specified in the Constitution — age, nationality, years of experience, etc. — there are no other notable criteria or requirements that must be met for someone to be considered a judge. Nor is there a list of those considered for the position and how the decision was made. Certainly, over time, unwritten criteria — seniority, geographic diversity, demographic qualities — have come to inform the appointment process for the Supreme Court. But, the last appointment to the Supreme Court was made in September 2019. Of the five vacant postings, the earliest one vacated in November 2019. Since then, no appointment has been made. With four more judges due to retire this year, it is unclear on what deliberations stop the collegium from making appointments.

The executive is also culpable in delaying appointments. Against the 419 vacancies currently in the high courts, the Ministry of Law and Justice received a total of only 208 proposals. Fifty-six per cent of these still remain with the Ministry for examination. Some delay is also because of the intelligence bureau’s delay in preparing and submitting background checks. After receiving the reports, the government on an average takes 127 days while the judicial collegium takes 119 days to confirm the recommendations. Often, non-legislated grounds — such as national security — give a free-wheeling power to the executive to defer collegium recommendations. Further, they have overruled the Collegium at least once by extending tenure of a High Court judge by one year, instead of two as recommended.

Many of these issues are well known. Time after time, parliamentary proceedings and reports detail the ever increasing vacancies, budgetary constraints and other hurdles affecting the work of the judiciary. Exchanges between the ministerial and judicial top brass, either in public or through reported correspondence, cite lamentations about the state of the judiciary. Rankings and indexes only drive home the same point that India’s legal backlog and lack of judicial capacity continue to reduce its credibility in international markets for contract enforcement. And yet none of these public deliberations on the issues plaguing the judiciary acknowledge that there is an institution that refuses to change the way it functions and takes comfort in institutionalised opacity. Attempting to reform it with organisational changes, be it with increased budgets or manpower, then is an effort in vain.

(Prakhar Misra and Shreyas Narla are Research Associates at the Mercatus Center working on Indian Political Economy)

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