It is most heartening and most satisfying to learn that in a daring and diligent initiative, the Youth Bar Association of India has filed a writ petition in the Supreme Court praying for issuance of writ in nature of mandamus, appropriate order or directives to be issued for filling up the judicial vacancies in the High Courts as per their sanctioned strength as expeditiously as possible and also to decide their representation seeking increase in the sanctioned strength. This writ petition which has been filed by the President of the Youth Bar Association of India – Advocate Sanpreet Singh Ajmani cogently points out that, “That though some appointments have been made in the various High Courts as well as in this Hon’ble Court but still about 39% of the sanctioned strength of the Judges of the High Courts are lying vacant as on 01.06.2019”. The petition alleges that the fundamental rights of the citizens under Article 14, 19 and 21 of the Constitution have been violated by denying them the right to speedy justice due to non-appointment of Judges in Courts.
What’s more, it is then pointed out by the Youth Bar Association of India in para 8 of its petition that, “That it is of utmost necessity that present situation may be addressed and meaningful directions may be issued for interest of justice in large public interest.” More importantly, para 8 then mentions the grounds which justify the issuance of directions by the Supreme Court for filling up the judicial vacancies. The numerous grounds which have been mentioned are as follows:-
1. Because ‘judiciary’ is the part of basic structure of the Constitution and also considered to be a pillar of democracy. Interference, by any means, affecting its smooth functioning amounts to interference in the independence of judiciary. Causing delay in appointing the judges might not be the expressive way of interfering with the independence of judiciary but it might be an indirect way of hampering its independence. For rule of law to prevail, judicial independence is of prime necessity.
2. Because judiciary is a limb of the democracy. It should not be left bare handed to cause its own work done. Not providing adequate human resource to cause its function perform is nothing less than impeding dispensation of justice. Justice, socio-economic or political are the constitutional goals aspired by the founding fathers. Preamble of the Constitution containing the collective aspirations of the framers of the Constitution forms part of a basic structure. It provides that ‘justice’ as the basic features for democracy to survive. Any obstruction in the dispensation of justice shall amount to deviation from the aspirations of Constitution makers. Wait for long to get justice in the want of sufficient strength of judges is impliedly an impediment in the dispensation of justice.
3. Because while filling up the vacancies in the Council of the States and the House of the People a statutory time limit has been prescribed under Section-151A of THE REPRESENTATION OF THE PEOPLE ACT, 1951 as well as under ARTICLE 62(1) AND (2) OF THE CONSTITUTION OF INDIA, which deals with the specific time of the appointment to be done in case of the President of India and that is being strictly observed while making appointment but while in appointment of judges although having prior information regarding the retirement of the Hon’ble Judges still no effective steps are taken to fill up those vacancies.
4. Because speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This constitutional right cannot be denied even on the plea of non-availability of adequate judges or financial resources. The state may have its financial constraints and expenditure but the law does not permit any government to deprive its citizens of the constitutional rights on plea of poverty.
5. Because the Right to Speedy Trial is considered as a Fundamental right of the citizen of this country which has been explicitly dealt by this Hon’ble Court in Hussainara Khatoon Vs State of Bihar AIR 1979 SC 1377 in the year 1979 and this right is implicit in ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIA. It is the constitutional obligation of the government to devise such procedures as would ensure and implement speedy trial. This Hon’ble court being majestic authority has to act as guardian of Fundamental rights of the citizens.
6. Because Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice.
7. Because ‘Justice delayed is justice denied’. If the process of administration of justice is so time consuming, laborious, indolent and frustrating for those who seek justice that it dissuades or deters them from even considering resort to that process as an option, it would tantamount to denial of not only access to justice but justice itself.
8. Because the leniency shown by the Government by the way of withholding the recommended names from this Hon’ble court for the appointment of judges in High Court for a long period of time without any justification increases the vacancy at its peak. It is important to maintain the ratio of judges to the population for the fast as well as timely disposal of cases.
9. Because in Supreme Court Advocates-On-Record Association vs. Union of India (1993) 4 SCC 441 in its para 486(2) it is stated that “initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice Of India and in the case of High Court by the Chief Justice of that High Court…..”. Thus, duty is cast upon the Chief Justice of the concerned High Court to fill up the vacancies but despite a huge number of vacancies, the Hon’ble High Court is not proposing enough names to fill up the vacancies.
10. Because the constitutional task assigned to the judiciary is in no way less than that of other functionaries i.e. legislature and executive.
11. Because primacy to be accorded to Hon’ble Chief Justice of India’s views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. Therefore, the government cannot sit idle over the recommended names by this Hon’ble Court.
12. Because as per the Article 50 of the Constitution of India for the very specific purpose of independence of judiciary, a direction is given to take steps to separate the judiciary from the executive in the public services of the State.
13. Because the citizens of this country being frustrated due to the long pendency of the cases and dates after dates started losing faith on judiciary and it may lead to the worst situation in the upcoming time that the society will start taking law in their own hands and the ultimate sufferer in whatever situation may be are the common and poor people of this country.
14. Because the main intention of the framers of the constitution in regard to judiciary was to carry out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of the constitution. In that sense the judiciary has to act as a sentinel on the qui vive. But the intention of the framers of the constitution is not adhered to at its inception by not appointing judges as per the sanctioned strength.
15. Because the young lawyers who have opted law and litigation as means to live with the dignity are on the verge of extinction due to prolong delay in disposal of the cases. The inordinate delay caused in conclusion of the cases hampering, on the one hand, entire justice administration, on the other hand, affecting adversely the young lawyers striving for a securing career.
16. Because the reputation of the institution is at the stake. Unexplained delay in filling up the vacancies and delayed disposal of cases consequent thereto impeding the trust and the faith of not only the sufferer but also the common people in this institution.
17. Because ‘judiciary’ is the part of basic structure of the Constitution and also considered to be a pillar of democracy. Interference, by any means, affecting its smooth functioning amounts to interference in the independence of judiciary. Causing delay in appointing the judges might not be the expressive way of interfering with the independence of judiciary but it might be an indirect way of hampering its independence. For rule of law to prevail, judicial independence is of prime necessity.
18. Because while filling up the vacancies in the Council of the States and the House of the People a statutory time limit has been prescribed in Section-15A of THE REPRESENTATION OF THE PEOPLE ACT, 1951. The above said section states as follows-
‘151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151. – Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy: Provided that nothing contained in this section shall apply if-
(a) the remainder of the term of a member in relation to a vacancy is less than one year; or
(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period’.”
19. Because it is further stated that even in the case of filling up the vacancies in the office of the President Article 62(1) of the Constitution of India has clearly stated that “an election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term” and Article 62(2) of the Constitution of India states that “an election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of the occurrence of the vacancy; and the person elected to fill the vacancy shall subject to the provisions of Article 56 be entitled to hold the office for the full term of 5 years from the date on which he enters upon his office”.”
20. Because it is an admitted fact that judiciary, in this country is the last resort and faith left to a victim as well as to an aggrieved person. The citizen of this country comes before the judiciary with a hope to get justice and justice within time. Even the same was also the intention of the maker of the Constitution of India, but unfortunately the interest of that intention is not taken care of. It is further submitted that in case of vacancy of legislative bodies, by-election is being conducted and the vacancy is filled up but in case of judiciary it is being given a step motherly treatment.
21. Because for instance it may be mentioned here that the Calcutta High Court has a total strength of 72 but there has been no appointments as per the sanctioned strength, which resulted into huge protest. The question arises here that who is responsible for such a huge vacancy? The answer of this question is very well enumerated in the case of ‘Supreme Court Advocates-on-record Association vs. Union of India’ (1993) 4 SCC 441. In para 486(2) it is stated that “initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India and in the case of High Court by the Chief Justice of that High Court…..”.
22. Because the constitutional task assigned to the judiciary is in no way less than that of other functionaries – legislature and executive. Indeed, it is role of the judiciary in carrying out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of the constitution.
23. Because the delay in appointment of the judges is not only destroying the functioning of democracy but also leading towards the lawless society which also violates the main intention of the maker of the constitution.
24. Because this Hon’ble Court in Supreme Court Advocates-On-Record Assn. Vs Union of India (1993) 4 SCC 441, it has been explicit in giving primacy to the opinion of Hon’ble Chief Justice of India. It is pertinent to mention herein that in para 478(8) it is clearly stated about the instances of non-appointment which are permissible and justified.
25. Because due to the non-appointment of judges increases the huge backlog of pending matters awaiting disposal at the High Court. It is pertinent to mention herein that disposal of cases is a “must” and should mean ‘disposal with a decision’ and not merely “striking out” from the list of pending matters. The non-appointment of judges is more than painful for the judiciary which universally professes that “delayed justice almost amounts to denial of justice”.
26. Because the central government is sitting idle over the subject matter neither paying any heed to the representation submitted by the Bar Association nor giving any valid reasons in writing for withholding the clearance of names of the judges which are already cleared by the Hon’ble Chief Justice of India.
27. Because the concept of separation of powers is a well-known fundamental political maxim which many modern democracies have adopted. Our Constitution has not strictly adhered to that doctrine but it does provide for distribution of powers to ensure the one organ of the Government does not trench on the constitutional powers of other organs. This is evident from Part V and Part VI of the Constitution. There is and can be no dispute that the distribution of powers concept assumes the existence of a judicial system free from external as well as internal pressures. Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection. Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every judge to the people of third great country. There can be no two opinion at the Bar that an independent and impartial judiciary is the most essential characteristic of a free society. Even though on the question that our judiciary should be independent of the executive and the legislature there is no divergence of views at the Bar, there was some difference of opinion on the actual content of the concept.
28. Because the Constitution makers strived to ensure that justice promised in the Preamble of the Constitution is pure and is not in any manner polluted by executive or political interference as is wrtit large on the face of the Constitution. Extraordinary powers have been conferred on the Supreme Court and the High Courts under Articles 32 and 226, respectively, manifesting the confidence of the people in the court’s ability to do justice. By Article 50 of the Constitution of India a direction is given to take steps to separate the judiciary from the executive in the public services of the State. The offices of the Attorney General and Advocates General have been given constitutional status with a view to making quality legal advice available to the Union and the States so that they function consistently with the rule of law and safeguard public interest.
29. Because the concept of primacy to be accorded to the views of the Chief Justice of India has three elements, namely, (a) primacy as ‘pater families’ of Indian Judiciary, (b) primacy to be accorded to his views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. The position of the Chief Justice of India under the Constitution is unique, in that, on the judicial side he is primus inter pares, i.e., first among equals, while on the administrative side he enjoys limited privacy in regard to managing of the court business. As regards primacy to be accorded to his views vis-à-vis the President, i.e. the executive, although his views may be entitled to great weight he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views. However, his views would be of higher value vis-à-vis the views of his colleagues, more so if he has expressed them after assessing the views of his colleagues but his view will not eclipse the views of his colleagues forbidding the President, i.e. the executive, from relying of them. The weight to be attached to his views would be much greater as compared to the weight to be accorded to the views of the other consultees under Article 217(1) since he has had the advantage of filtering their views and ordinarily his views should prevail except for strong and cogent reasons to the contrary but that does not mean that the views of the other consultees would be rendered irrelevant or non-est forbidding the President, i.e. executive, from noticing or relying on them. The views of the Chief Justice of India would be entitled to even greater weight when he is the sole consultee under the constitution, e.g. Article 222(1), more so when it concerns a member of the judicial family and ordinarily his view should be accepted and acted upon by the President, i.e. the executive, unless there are compelling reasons to act otherwise to be recorded in writing so that the apprehension of the executive having acted in a manner tantamounting to interference with judicial independence is dispelled.
30. Because the Framers of the Constitution placed a limitation on the power of the Executive in the matter of appointment of Judges to the Supreme Court and the High Courts. The requirement of prior ‘consultation’ with the superior Judiciary is a logical consequence of having an “independent Judiciary” as basic feature of the Constitution. If the Executive is left to ignore the advice tendered by the Chief Justice of India in the process of consultation, the very purpose and object of providing consultation with the Judiciary is defeated. Therefore, there should not be any doubt regarding the basic intention of the constitution makers that the Executive is bound by the advice/recommendation of the Chief Justice of India in the process of consultation under Articles 124(2) and 217(1) of the Constitution.
Frankly speaking, there is no reason why the Supreme Court should not issue writ as prayed by the petitioner in the nature of mandamus, orders or directions to the respondents to immediately appoint Judges as per sanctioned strength in Hon’ble High Courts and Subordinate Courts functioning in the country in the interest of justice. We all know fully well how the former CJI TS Thakur had publicly wept over the state of affairs in judiciary especially the huge vacancies in courts all across the country while requesting the Centre to take steps to fill them up! Even the incumbent CJI Ranjan Gogoi had himself immediately on assuming office had suo motu taken cognizance of the huge vacancies in lower courts and High Courts. Not just this, he has also ensured that all the vacancies of Judges in the Supreme Court are filled up fully which has happened after a long time! Similarly in big courts like Allahabad High Court also earlier we used to see how more than half of the Judges post kept lying vacant but now under CJI Ranjan Gogoi things have changed a lot even though still a lot remains to be done and he has directed all the High Courts as also the Public Service Commissions to fill up the vacancies at the earliest and keeps reminding them at regular intervals!
One fondly hopes that the petitioner’s legitimate prayer is accepted by the Apex Court as it is in the public interest and not in interest of the petitioner or any other private individual! The petitioner has very remarkably pointed out that just like seats of MLAs and MPs are filled up at the earliest similarly why the same we don’t see in case of Judges? Not just this, he has also pointed out so many other strong points which I have already illustrated above which are certainly commendable and deserve to be accepted in totality!
No doubt, we have to keep our fingers crossed till the Apex Court finally delivers its judgment on it! But there can be no two opinions that the petitioner has really put across his valid point that “non-appointment of Judges affects speedy justice” with strong and cogent reasons which cannot be disputed! When MPs and MLAs can be appointed in time and not even one seat is left vacant and as soon as it becomes vacant, bye-elections are held at the earliest then why the same yardstick is not applied to appointment of Judges also who play the pivotal role of dispensing justice which directly affects the law and order situation in our country which in turn affects our global standing and international reputation?
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.