As many as eight High Court appointments by President Pratibha Patil were announced while nearly 300 judgeships have been vacant and 32 million cases pending nationwide.
The appointments included seven Additional Judges named to the High Courts of Delhi and Gauhati and a Delhi High Court Additional Judge made permanent.
Additional Judges named to the Delhi High Court are R V Easwar, Pratibha Rani and Sat Paul Garg and to the Gauhati High Court are Nongmeikapam Kotiswar Singh, Ujjal Bhuyan, Swapan Chandra Das and Prasanta Kumar Saikia.
Justice Rajiv Shakdher has been made permanent Delhi High Court Judge.
The appointments of Additional Judges to each High Court are in the aforesaid order of seniority and each appointee will have a two year tenure from the date of assumption of office.
The Delhi High Court has a sanctioned strength of 48 judgeships, but 14 of them– 29.17 per cent– are vacant.
The Gauhati High Court has a sanctioned strength of 24 judgeships, but five of them– 20.83 per cent have been vacant.
The average rate of vacancies in India’s 21 High Courts is 32.51 per cent– 291 of 895 sanctioned judgeships vacant– as reported by the Department of Justice nine months ago.
Even in district and subordinate courts 3,170 of 17,151 sanctioned judicial posts were reported vacant by the Justice Department a year ago.
Although Department figures published periodically by the Supreme Court have not since been updated, knowledgeable sources say vacancy levels remain high, especially considering the mounting pendency in courts and an apparently sharp decline in deterrence.
In absence of a comprehensive study of deterrence level by India’s legal scholarship, critics point to the perception of increasing crime and lawlessness to infer that it is abysmally low.
An assault on Wednesday on a lawyer in his chambers just in front of the Supreme Court of India for having aired a controversial opinion on Kashmir reflects, for instance, the level of law and order the justice system has produced.
Judicial vacancies have been a cause of serious concern in a nation with rampant corruption and serious discipline issues compounded by court delays fuelled in turn by mounting pendency.
Indian courts have an estimated 32.23 million cases pending, the Justice Department reported in the last quarter of 2010– up from 32.12 million cases it reported in the 3rd quarter and 31.54 million cases in the 2nd quarter.
The figures reflect unresolved wrongs, injustices and conflicts Indians live with. They also provide a perspective on vacancies, not to mention the state of law and justice ! For many victims, critics say, courts have become a system of last resort, given expensive and dilatory processes, and competence and accountability issues surrounding the bar and the bench.
Deterrence, a key to any effective system of justice, indeed, its very raison d’être, suffers from long-winded litigation, seemingly endless adjournments, low rates of conviction and inconsistent practices in sentencing.
Guidelines suggested by an Administrative Reforms Commission ”so that sentencing across the country for similar offences becomes broadly uniform” have yet to take effect.
Oddly, even where certain laws provide for imprisonment, few are so sentenced or suffer incarceration, altogether undermining the role of deterrence in Indian jurisprudence.
Even in judicial appointments, reforms have been discussed for years but yet to materialise.
A Judge selected by the existing system of collegium resigned a few weeks ago when he was close to being impeached in Parliament over conduct as a lawyer decades ago.
The case raised afresh questions about the process of selecting Judges which clearly failed to bring out the facts pertinent enough to warrant his removal after so many years of judgeship.
The United Progressive Alliance government acknowledged in Parliament a few weeks ago demands to change the way Judges are appointed, making the process transparent, but said it has ”no specific proposal” under consideration.
”The procedure has been debated in various fora and there have been demands to change the same,” Law and Justice Minister Salman Khurshid said in a written reply in Lok Sabha.
But ”there is at present no specific proposal under consideration of the government to bring about any change,” he said.
The existing procedure is based on a Supreme Court Judgement dated October 6, 1993 and advisory opinion dated October 28, 1998.
That was when and how the task of appointing Judges was turned over to the judiciary– Chief Justice of India and Chief Justice of the concerned High Court.
The idea of All India Judicial Service– around for more than 25 years– has yet to take off, too.
”The government is seized of the matter of creation of an All India Judicial Service under Article 312 of the Constitution,” Khurshid told the House.
Khurshid’s predecessor, M Veerappa Moily, is on record in Parliament that ”delay in filling up the vacancies of Judges is one of the main reasons for accumulation of pending cases in courts.” Moily said ”the main reason for the large number of vacant posts is that the government has not received sufficient proposals to fill up these vacant posts.” Experts question the notion of government helplessness in making the justice system truly functional and accountable.
Critics stress a disincentive to allowing such vacancies.
Experts agree that with 32 million plus cases pending, many for decades, and barely 18,000 judges sanctioned against a recommended 55,000 strength, vacancies are the last thing Indian courts or justice seekers can afford.
The point ”that the vacancies of judges in the High Court should be expeditiously filled up” was also underscored by a Parliamentary panel headed by Jayanthi Natarajan.
”As far as the need of more judges is concerned,” the Parliamentary Standing Committee on Law and Justice ”reiterates its earlier recommendation that the vacancies of judges in the High Court should be expeditiously filled up.
”The government should vigorously pursue the matter with the Chief Justice of the High Courts for necessary actions.” That was more than a year ago.
Nor has there been any let-up in more than two years since Prime Minister Manmohan Singh stressed the urgency of filling up Court vacancies.
”I am told that almost 3,000 posts of judges in the country are vacant because of delay in recruitment,” Dr Singh told a Joint Conference of Chief Ministers and Chief Justices in August 2009.
”All these vacant posts at the subordinate levels need to be filled up without any further loss of time… The existing vacancies in High Courts are quite high in number and need to be filled up urgently.” Far from being filled, more vacancies have cropped up since.