Photo: Pradeep Gaur/Mint
Photo: Pradeep Gaur/Mint

Vacant posts remain collegium system’s biggest challenge

Efficiency in ensuring prompt appointments of judges has not been one of the merits of the current process

For the first time in nearly 20 years, the Supreme Court of India has struck down an amendment to the Constitution as being contrary to the “basic structure" of the national charter. Supreme Court and high court judges will continue to be appointed by a collegium comprising the five senior-most judges of the Supreme Court (including the Chief Justice of India), extending a practice that has been followed since 1999.

The National Judicial Appointments Commission (NJAC) Act, 2015 which sought to change the composition of the recommending body by adding the law minister and two “eminent persons" has been held to be offensive to the concept of an independent judiciary and, therefore, unconstitutional.

But the collegium system, too, has had numerous detractors, including judges from the NJAC case who struck down the constitutional amendment and the Act on Friday.

Justices J. Chelameswar and Kurian Joseph, in their opinions, pointed out that the collegium system lacks “transparency, accountability and objectivity".

Other than that, how has the collegium system functioned till date?

Detailed data is available, quarter-wise, in the Court News reports published online by the Supreme Court of India, between 2006 and the middle of 2014, containing data about vacancies and appointments across all the three levels of the judicial hierarchy in India (chart 1).

According to the data, high courts have had the highest percentage of unfilled positions in each quarter and year. Since 2007, there have never been fewer than 25% of available high court judge positions that were vacant; in some quarters, up to a third of high court judicial seats were unfilled.

The percentage of vacancies in the lower judiciary and district courts has tended to be lower, fairly consistently in the low 20% range, whereas at the smaller Supreme Court, the vacancy percentage has fluctuated between 4% and 26% in that time period.

Between 2006 and 2014, about 76 high court judges get appointed on average per year whereas about 63 high court judges retire every year (chart 2).

By itself, that would ensure a healthy population of sitting high court judges, but over the same time period, the number of new cases has skyrocketed; the sanctioned strength of judges in the high courts has correspondingly increased from 726 to 895 until 2014, and now stands at 1,017, following a decision by the previous government to increase the sanctioned strength.

But even without any further increases in judicial strength, assuming that the number of judges retiring per year remained approximately the same and the collegium continued to appoint judges at the same rate, the collegium would take 33 years to fill the current 406 vacancies in the high courts.

In reality, it is unlikely the collegium, as it is, will ever be able to come close to filling the vacancies, as it has never been able to ensure a working strength of more than 652 high court judges, practically nullifying any efforts to increase the bench strength in an effort to reduce case pendency.

What is the impact of such a large percentage of posts of HC judges going vacant?

Last year, lawyers Sumathi Chandrasekharan and Smrithi Parsheera wrote a blog on the number of cases pending per judge across the level of the judiciary. Following on from the Law Commission’s 245th Report on Judicial Arrears, they attempted to get a better sense of how many more judges we need at each level (mintne.ws/1Myymzi).

Looking at the data at the end of 2013, they found that each high court judge had nearly three times as many pending cases as judges at the Supreme Court, and nearly four times as many pending cases as each district court judge. The same conclusion holds when those figures are updated to mid-2014 (chart 3).

Although there are inconsistencies in the manner in which different high courts and district courts count cases, the fact remains that unlike the district courts that largely handle trials (civil and criminal) which require evidence of witnesses et al to be taken, high courts and the Supreme Court largely involve appeals and writ petitions that have fewer procedures to be followed to complete the case.

The large number of pending cases per judge at the high court level is probably an indication of the sustained backlog that has built up over time as a result of the failure to fill up the vacancies over several years.

What could be the cause of such difficulty being faced by the collegium in appointing high court judges?

For one, the Constitution itself prescribes the most complicated appointment procedure for high court judges. Whereas most other appointments involve consultation with one authority before appointment, the President has to consult not only the Chief Justice of India (i.e. the collegium) but also the chief justice of the high court where judges are being appointed, and the governor of the state where the high court has jurisdiction.

It’s an elaborate dance involving no fewer than four separate authorities, even though, effectively, it comes down to the Supreme Court collegium and the three senior-most judges of the high court.

Compounding this is the recent practice of chief justices of the high court being appointed from outside the state, and for very short periods of time.

When justice Mohit Shah retired as chief justice of the Bombay high court in September 2015, after five years as chief justice, he was the longest serving chief justice since the 1970s (when justice Ramanlal Maneklal Kantawala served for six years as chief justice of the same high court).

By way of contrast, in that same five-year period, including current incumbents, the Delhi high court has had four chief justices (including an acting chief justice for nearly a year), the Karnataka high court four, the Punjab and Haryana high court five and the Calcutta high court three chief justices.

A third factor could be the absence of institutional support for the collegium, which, 22 years after it was originally envisaged, remains an ad hoc body with little constitutional or statutory backing.

There is no permanent secretariat and support staff dedicated to the task of helping the collegium with the complicated appointments procedure or providing adequate information to ensure that meetings take place on time and with sufficient preparation.

A last factor could also be the churn within the composition of the collegium itself.

As advocate Abhinav Chandrachud pointed out in an article a couple of years ago when he was a doctoral student at Stanford Law School, the average length of tenure for a Supreme Court judge is five years (mintne.ws/1LFShzO).

Despite the increase in the sanctioned strength of judges, this has meant a high “attrition rate" where it is rare for judges to be a member of the collegium for more than two years at a time. Such constant churn in the membership of the collegium is unlikely to help in smooth functioning of the collegium.

It must be pointed out that nothing in the structure of the NJAC suggested that it would have addressed these problems of the collegium.

While striking down the amendments and the Act, the fact that the Supreme Court has recognized the lack of transparency and other defects in the collegium system is perhaps cause for some hope in the process.

At the moment, whatever the other merits may be of the collegium system, efficiency in ensuring prompt appointments has not been one of them.

Since the Supreme Court has decided to accept suggestions from the lawyers who argued the NJAC case on how to improve the collegium, perhaps it would do well to appreciate that improving the collegium requires fixing the underlying structural weaknesses of the system and not just the superficial defects.

The writer is a research fellow at Vidhi Centre for Legal Policy.

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