It is hard not to agree with Attorney General of India K Venugopal when he says that the government of India can’t alone be blamed for the judiciary in India falling short of sanctioned strength. Three years ago, CJI TS Thakur famously broke down—at an event with PM in attendance—over the pendency in appointments of judges to the higher judiciary, squarely blaming the Centre for sitting on the Supreme Court (SC) collegium’s recommendations. At the time, many had pointed out that the higher judiciary itself was responsible for the far larger vacancy in the lower courts. Things haven’t changed since. While high courts across the nation are short of over 390 judges, the working strength for judicial officers in the district and subordinate courts, as of January 29, fell short of the sanctioned strength by 4,970. While the High Courts must answer for the staggering vacancy in the lower courts since they oversee lower court appointments, with the SC seized of the matter—through the Malik Mazhar Sultan vs UP Public Service Commission case—it was hoped that there will be some manner of resolution forthcoming. The shortfall in judicial strength, along with other factors, has resulted in a pendency of nearly 3.2 crore cases in the district and subordinate courts.
As the India Justice Report 2019 shows, judiciary remains a low priority in terms of expenditure for the government (both Centre and the states). While national spending on the judiciary was 0.08% of the Budget, states’ spending was just 0.54% of their total in FY16. Delhi was the only state/UT that spent more than 1%, and, not surprisingly, it led the rest of the nation in filling up of lower-court vacancies. That said, the bigger problem is that the higher judiciary seems to be dragging its feet on appointments. Given it took the government 127 days to run background checks on judges, as the attorney general pointed out in the SC, it is hard to understand why it took the SC 119 days on average to decide on appointments after receiving the recommendations of the various High Court collegia forwarded by the law ministry. Shockingly, in the case of 199 vacancies out of 396 (as on February 1) in the High Courts, the High Court collegia hadn’t even forwarded names; in the case of some High Courts, recommendations had not been received for five years after the vacancies arose!
While the government needs to shoulder a fair share of the blame—25 out of 35 proposals made for High Court appointments are pending with the Centre—the judiciary can’t claim to have done its bit earnestly. Some argue a large part of the problem could be fixed by having a pan-India judicial service cadre—indeed, many Law Commission reports have batted for this. However, a Vidhi Centre for Legal Policy report argues that most of the reasons behind the call have been addressed by the judicial reforms since. Even if that were the case, given how judicial understaffing seems to have become chronic (despite the orders of the SC in Mazhar Sultan for lower-court vacancies), the judiciary needs to get its act together.
