There is need to rethink the way India appoints permanent judges in various High Courts
The recent protests for increasing judges’ strength in the High Court of Karnataka, Calcutta, Orissa and Hyderabad have received wide traction amongst the general public. The rising gap between the sanctioned strength and the working strength in high courts has become an important subject-matter of public debate. The Memorandum of Procedure (MoP) that has been followed for appointment of high court judges demonstrates the long and complicated procedure.
FLAW IN JUDICIAL VACANCIES
The primary problem in the entire process lies at the very beginning, when the chief justice of the high court gives his/her recommendations. While the manner in which the chief justice assesses the vacancies is unclear, data collated from the Supreme Court’s annual reports for the years 2016 and 2017 and the Court News (quarterly newsletter of the Supreme Court) for 2015 indicates the haphazard manner in which appointments have been taking place in the country.
While the sanctioned strength in the High Court remained unchanged in 2017, there was an increase in sanctioned strength in various high courts in 2016. However, the vacancy percentage hardly saw any decline. The figure below depicts the vacancy percentage in the four high courts that have seen protests from the bar recently.
There was an increase in vacancies in all the four high courts in 2016. Although the high courts of Hyderabad and Karnataka saw a dip in vacancies in 2017, it was only marginal.
ALLOCATION OF PENDING CASES
While several high courts in the country suffer from a high number of vacancies, the allocation of working strength in different courts are quite arbitrary.
The haphazard distribution of judges across the high courts can be clearly seen. While the high court of Allahabad has the highest number of pending cases in the country and the highest number of judges, this is not the trend in several high courts. A clear variation can be observed in the high courts of Bombay and Madras, which have a similar number of pending cases but varying judicial working strength. The high court of Bombay has an average working strength of 68 judges, while the high court of Madras has an average of only 44 judges. Similar trends can also be observed for other courts, such as the high courts of Karnataka and Calcutta.
PENDENCY V/S DISPOSAL
Maintaining adequate judicial strength throughout the year is important. It ensures that cases get disposed of expeditiously without going into judicial limbo. Data on disposed and pending cases collected from DAKSH’s database point out those cases generally tend to get disposed of quickly. However, due to several procedural delays, cases remain pending in the system for a longer period of time, thus increasing the average pendency. It is then important to have the requisite judicial strength across different years, to deal with the immediate incoming caseload.
Before delving into data any further, it is important to understand the distinction between average pendency and average disposal, which are often used interchangeably. While the former is calculated based on cases that are still pending in the court, the latter is calculated based on cases that are disposed of. Data from DAKSH’s database suggest that cases in the high courts get disposed within two years on average, while the average pendency in high courts is three years. A similar trend can be seen in subordinate courts, where the average disposal time is two years, while the average pendency is six years.
A recent study by the Vidhi Centre for Legal Policy on writ petitions in the high court of Karnataka also displayed a similar trend. As per the study, 60% of cases disposed of before the Bengaluru bench were disposed in the same year in which they were filed. Hence, one can conclude that cases generally tend to get disposed of quickly, failing which they remain in the judicial system for a longer period of time. This may be due to several reasons, including procedural delays, adjournments by the parties, etc.
The overall length of the entire selection process may also prove to be problematic. The recommendation process given under the MoP begins from the chief justice of an individual high court and passes through several checkpoints of state and central executives before it finally lands with the collegium.
Despite this time-consuming procedure, the finality of decision-making and its implementation lies with the Centre. The Supreme Court recently commented upon the inordinate delays in appointment of judges by the executive. It should be noted that the MoP did provide timelines for certain stages. However, due to the paucity of information in the public domain, it is unknown whether these timelines were followed.
LACK OF SCIENTIFIC METHOD
The rationale behind assessing sanctioned strength or determining working strength in different high courts is unclear. How is the sanctioned strength decided? On what basis are vacancies determined? These are some of the questions that need to be answered. While there have been discussions on adopting a scientific approach towards judge strength calculation in the subordinate courts, the haphazardness in the working strength of judges in high courts shows the need to adopt a more structured approach.
One of the methods devised in the past to calculate judicial strength in subordinate courts was the ‘rate of disposal method’. It was recommended by the Law Commission, which aimed at calculating judicial strength based on the number of cases disposed of by judges. Due to the method’s several shortcomings, the National Court Management Systems Committee recommended a weighted caseload approach based on the unit system. The method differentiated between different types of cases and relied on the unit system, a performance evaluation system for subordinate court judges, to assess judicial strength.
Deviating from these proposed methods, it is important to adopt refined calculation methods for subordinate courts and high courts. A ‘time-based weighted case load’ approach, a method commonly used internationally, would help in assessing the required judicial strength more efficiently. It takes into account the actual time spent by judges in different types of cases at varying stages by way of a time and motion study. Such a method can help decision makers in taking a scientific approach towards the allocation of judges in different states.
It is time that a scientific and proactive approach be taken to determine judicial strength and allocation of judges in different high courts. Even the appointment process needs to be made simpler, with specific timelines for each stage. Attempts must be made to disseminate information on judges’ appointments, which can help in tracking the average time taken in the entire process. A positive step towards these initiatives can go a long way in combating the problem of mounting vacancies.