Why Is it So Hard to Fill up the Judicial Vacancies in Our Courts?

The 'powers that be' do not want an independent judiciary but should we let this happen? Is it in our interest to have a supine or subservient judiciary? I don’t think so.

This is the first article in a two-part series on issues plaguing India’s judicial system.

The Chief Justice of India has two options before him: (1) Take revolutionary steps with revolutionary fervour to remedy the malaise afflicting our justice delivery system, or (2) Be ready to light its funeral pyre.

Today, our justice delivery system is facing multiple challenges. Two of them are stark and need immediate attention – appointment of judges and managing the humongous number of pending cases. I believe it’s already too late to fix these problems, but hope that the chief justice proves me wrong. We need to get real and acknowledge that unless these problems are aggressively and systematically attacked, they cannot be resolved – at all.

Let’s consider each and let me explain why I believe it’s too late. Many will take me for a naysayer, but I believe that a few ad hoc arrangements, knee-jerk reactions and ‘landmark’ judgments here or there will make news for a while, but will eventually die a natural death in a few months. We have seen that with fast-track courts, special courts, fast-track special courts and special fast-track courts. Members of the legal fraternity might also remember two (among many) trend-setting judgments – Salem Advocate Bar Association (2005) and Malik Mazhar Sultan (2008).

Other issues such as credibility, public confidence and trust are equally important but they are intertwined, to an extent, with the appointment of judges and pending cases. They need to be addressed as well, but on another occasion.

Achieving zero vacancy

Today, the website of the Department of Justice (DOJ) tells us that the sanctioned strength of high court (HC) judges is 1,080. Earlier, even when the sanctioned strength was in the region of 700+ we could not achieve zero vacancies. Indeed, as far as I can remember, we have never had a zero-vacancy situation in the HCs in the last 40 years. It seems, prima facie, that if we cannot fill up 700+ posts, how can we hope to fill up 1,080 posts. Theoretically, it may be possible, but practically it is not so. Let’s accept it, humbly. Even today, there are only 669 judges in position.

To ensure that every post is filled up, my guess is that we would need to approach double the number of outstanding lawyers to accept judgeship. I have suggested this figure because, anecdotally, about half the outstanding lawyers who are offered a judgeship usually refuse the offer given by the chief justice of the high court. There are several reasons why they do so and are, perhaps, justified in doing so.

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The DOJ website tells us that as on April 1, 2021 there are 411 vacancies among high court judges. The norm is that two-thirds of the vacancies are filled up from amongst practicing lawyers. Therefore, if we accept the 2x formula, we need to fill up 274 vacancies from the Bar and therefore consider about 550 outstanding lawyers. We do have many outstanding lawyers in the country, but even then, with all due respect, I would be quite surprised if anyone can confidently say that India has a surfeit of outstanding lawyers. It is one thing to say, for optics, that every lawyer is outstanding and another to actually believe it. And, if we do have so many outstanding lawyers, how come we have so many vacancies for so many years? The fact that the Supreme Court and several high courts are seriously considering the appointment of retired high court judges as ad hoc judges is a clear indication that there is a dearth of outstanding talent or that outstanding lawyers are not willing to put their neck on the chopping block or worse, both.

Why are lawyers reluctant to accept judgeship?

Why would an outstanding lawyer hesitate to accept an offer of judgeship? Consider a few well-known examples: Saurabh Kirpal was recommended for appointment as a judge of the Delhi high court in October 2017. As yet, no decision has been taken on his appointment although more than three years have gone by. The ostensible reason going around is his sexual orientation. So? Is that a disqualification? The Supreme Court has not said that having a particular sexual orientation is an offence so why should it be a disqualification? Another reason doing the rounds is that his partner is a foreigner. So what? Is that a disqualification? Justice Vivian Bose of the Supreme Court had a British mother and a Canadian-American wife. General T.N. Raina, Chief of Army Staff had a French wife.

If some among the powers that be (PTB) want to find a reason, however absurd, for denying elevation as a high court judge, it’s not difficult. Lawyers know this as the ‘red hair syndrome’, having its origin in a 1926 decision (Short v. Poole Corporation, 1926) dealing with the dismissal of a teacher because she had red hair. “It is so unreasonable that it might almost be described as being done in bad faith.” Since no good reason can be found in his case, an absurd reason is floated but no official reason is given. And the silence is deafening. The message being sent out is that you must conform to ‘our values’ if you want to be appointed a judge.

A second example is that of Justice Muralidhar of the Delhi high court who was served with an order of transfer out of the Delhi high court close to midnight for passing a humanitarian order during the riots in Delhi in 2020. The ‘crime’ – directing Delhi Police to enable the injured to go to a nearby hospital for life-saving treatment. Can you believe it? In view of this direction and expressions of anguish over the inability of the police to bring the riot under control, the transfer order (though passed earlier) had to be implemented immediately and could not have waited till the next morning or even a few days. How dare he question the PTB! Conventionally, judges have always been given sufficient time to join the new high court on transfer and the entire exercise is carried out gracefully – but not in the case of Justice Muralidhar. The manner of executing his transfer was unprecedented and disgraceful – out you go. So, the message is that if a judge is compassionate and caring, and if the PTB do not like it, he or she is inviting trouble.

A third example is that of the treatment meted out to Chief Justice Akil Kureshi, an outstanding judge. Why is he not being brought to the Supreme Court? I don’t have to tell you the answer – you’re smart enough to know all the reasons. Again, the silence is deafening.

A fourth example (and this is the last) – splitting a recommendation. On August 17, 2020 the Supreme Court collegium approved a proposal for the elevation of six advocates as judges of the Delhi high court. However, only two of them were appointed and a notification to that effect was issued by the DOJ on February 22, 2021 – that is, after six months. Question No. 1 (5 marks) – why did it take six months to implement the recommendation of the Supreme Court collegium? Question No. 2 (10 marks) – what happened to the other four? The PTB won’t tell us. Surely, it’s not a state secret, the disclosure of which will attract sedition or worse, a charge of terrorism.

Please recall, on May 6, 2014 the Supreme Court collegium recommended four names for elevation to the Supreme Court – (now Justice) Rohinton Nariman, Justice Arun Misra, Justice Adarsh Kumar Goel and Gopal Subramanium. The PTB gave Gopal Subramanium a ‘negative’ rating and segregated his file from the others. Chief Justice Lodha objected to the unilateral segregation. Unfortunately for our justice system, Gopal Subramanium withdrew his consent and the matter was closed.

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What was the basis of Chief Justice Lodha’s objection to segregation? It was not only the manner in which it was done (unilaterally and secretively) but also (in my view) in violation of the principle behind the recommendation. The Chief Justice of India (CJI) in consultation with the collegium (and other judges of the Supreme Court) makes a recommendation to the Union minister of law and justice for appointment as a judge of the high court or the Supreme Court. The CJI has two options: first, recommend one name at a time, in which event each recommendation can be dealt with individually by the PTB. This is not what happened on May 6, 2014. The second option is for the CJI to make one recommendation consisting of more than one person for appointment. That is to say that the recommendation is one, but the ‘candidates’ (so to speak) are several. This is what actually happened. In such an event, there is no question of segregation of a ‘file’. The PTB, however powerful, cannot accept three-fourths of one recommendation. It sounds quite absurd. The recommendation must be accepted in full or returned to the collegium with objections so that a reconsideration can take place. Neither option was exercised and a unilateral and secretive decision to segregate was taken, riling the CJI.

So, the instances multiply and the PTB get emboldened as the days go by. If the Supreme Court recommends the extension of a judge for two years (as in the case of Justice Ganediwala) the PTB give an extension for one year. Why? Once again, the silence is deafening.

Lawyers know these instances and are, therefore, hesitant to accept the invitation to judgeship. They have had a successful career and have a brighter future. Why would they put themselves in a position where they are likely to suffer indignity for no rhyme or reason? These and other instances engender acceptance hesitancy. Silence, in such cases, is not golden.

Why is this happening?

There are several other instances of the nature that have been described. No answers are given by the PTB and neither the right to know nor the right to information is available. It is quite clear to me that under these circumstances, only speculation will rule the roost. And what is the speculation? One of the views going around is that the PTB is upset over the judgment of the Supreme Court striking down the National Judicial Accountability Commission (NJAC). Maybe the view is correct and therefore, the attempt all along has been to curtail and whittle down the authority of the judiciary till it heels. What did the Supreme Court decide? Basically, two propositions – we need an independent judiciary (don’t we?) and independence of the judiciary is a basic feature of our Constitution (isn’t it?). Any problem with these propositions? If there really is opposition by the PTB to the NJAC decision, the sequitur is that the PTB does not want an independent judiciary. Should we let this happen? Is it in our interest to have a supine or subservient judiciary? I don’t think so and if you agree, please sing it out.

The way forward

What then is the way forward? May I suggest three solutions, knowing fully well that they will not be implemented and even if they are, it will be a case of too little, too late.

First, the judiciary must exert itself – it cannot afford to take all this lying down. The PTB have tasted blood and have got away with it on more than one occasion. The task, therefore, is uphill and arduous but the climb has to begin. The judiciary must put its foot down and ask the PTB what’s going on and insist on a credible answer, not the red hair kind. And if the answers are not forthcoming, make it known publicly. True, the judiciary has “no influence over either the sword or the purse” but it commands, as yet, some moral authority and has the backing of public confidence (at least so far). Once public trust and confidence is lost, all is lost. A few days ago, Justice Stephen Breyer of the US Supreme Court (at 82 the oldest Supreme Court judge) gave a lecture at Harvard Law School in which he said, “If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.” So, as Nike tells us – Just do it!

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Second, the high courts and the Supreme Court should both be transparent as far as the process of appointing judges is concerned. The Memorandum of Procedure (MOP) postulates that a proposal made by the chief justice of the high court should be sent to the chief minister of the state and “to avoid delay” to the governor. It should simultaneously be sent to the CJI and the Union law minister “to expedite consideration.” The emphasis is on avoiding delay and expediting the process. If that is so, there is absolutely no explanation why such proposals should remain pending with the PTB and certainly with the Supreme Court. In fact, immediately on receipt of a copy of the proposal, the collegium of the Supreme Court can start its scrutiny

If the process is transparent, there is no reason to be cagey about the ‘candidates’ being considered for appointment. Again, let’s be realistic. Soon after the proposal is despatched from the secretariat of the CJ, every lawyer in the HC knows who have been recommended for appointment. It’s not a secret. Apart from lawyers, even litigants and potential litigants know. And, by the way, this was seemingly acknowledged by the CJI while hearing a petition when he observed (orally) and as reported in The Print on September 4, 2020, that “levelling allegations at a judge, who was going to be promoted or elevated, had become a “regular phenomenon” nowadays” and that this has become a trend.  So why the opacity?

There are at least three advantages in being transparent: (1) If the names of the ‘candidates’ are disclosed in the first instance, it will speed up consideration. (2) If lawyers are the best judge of judges, they are also the best judge of potential judges and their colleagues at the Bar. Transparency will also compel the so-called intelligence authorities (who are known to have described a teetotaller as a boozer!) to make an impartial and objective assessment of the ‘candidate’. (3) The courts have repeatedly said that sunlight is the best disinfectant. If so, is there any reason to eclipse the names of candidates?

Third, the system of not appointing the senior-most judge of a high court as the chief justice of that high court and instead transferring him or her (as the case may be) to another high court is outdated and serves absolutely no purpose at all. It may have been valid 35 years ago due to caste and community and whatever other considerations, but not so now. More importantly, there was no collegium system at that time to act as a check on the unlimited powers of the chief justice of a high court for appointment of a judge to the high court.

When a judge is appointed, she knows whether she will be the chief justice of the high court or not and is reconciled to the situation from day one. But the transfer policy has changed all that. If a judge is among the senior-most in her high court, she believes that she is good enough to be the chief justice of another high court and if she is appointed as chief justice in some other high court, she begins to eye a seat in the Supreme Court. (I have no particular person in mind.) The result is unequal distribution of judges in the sense that there are instances of one or more high courts having three chief justices and some other high courts going unrepresented. Is this fair? Worse, does it lead to lobbying of some sort? I don’t know. You can bet that the high courts of J&K (apart from a rare exception), Sikkim, Tripura, Meghalaya and possibly Manipur will never have a daughter (or son) of the soil as its chief justice in the near future. The transfer policy has generated a class system over the years and must definitely be abolished.

That apart, for a chief justice to preside over an unfamiliar HC is not always easy when it comes to recommending lawyers for appointment as judges. The chief justice has to first settle down, keep a hawk eye on practicing lawyers and judicial officers. A few months are taken up in this process, when it can easily be avoided. The senior-most judge of the high court would normally know every competent lawyer and judicial officer and so making a proposal for appointment when she is appointed as the chief justice of her high court is not a difficult proposition. Or, it is in any event much easier than for a chief justice who is a stranger to the high court and before whom some competent lawyers might not be appearing because of the roster system. I recall two undoubtedly outstanding income tax lawyers in Delhi high court who did not get enough votes to be designated as senior advocates simply because their practice was confined to the Income Tax Bench only. Therefore, only a few senior judges knew them and most others did not. A transferee chief justice could face a similar handicap, much to the detriment of the high court and the judiciary of the state to which she is a stranger.

These suggestions, and I am sure there are many others, might possibly make a difference. But these and other suggestions will not solve the problem of appointment of judges which, I believe, is too far gone to redeem. I repeat, I hope the CJI proves me wrong and takes the necessary bold steps.

Madan B. Lokur is a former judge of the Supreme Court of India.