The real reason behind judicial vacancies

Let's face it. No matter which government is at the Centre, the judiciary continues to be short-staffed. On May 5, the issue once again came up for discussion between the judges of the Supreme Court and the Centre.

The two sides sparred over the delay in filling up the rising vacancies in high courts, with the apex court blaming the government and the latter pointing fingers at the SC collegium.

A bench of justices Madan B Lokur and Deepak Gupta, while hearing a transfer plea of a litigant from Manipur, pulled up the Centre for not clearing the names recommended by the SC collegium for appointment, causing undue harassment to litigants.

Mildly terming it as an "unfortunate situation", the judges wondered why the Centre was so unresponsive. Attorney general, KK Venugopal, responded that the Centre cannot take the rap, wondering, "Why the collegium was recommending few names when the vacancies were huge."

The exchange of words has at least built consensus on the fact that the scale of vacancies is "huge" with the only point of disagreement being who should shoulder the blame.

The approved/sanctioned strength of judges in Supreme Court and 24 high courts is 1,079 against a working strength of 666. This means there were 413 vacancies as on May 1, 2018, with judges retiring every other day.

On an average there are 1.65 lakh cases pending in every high court, while 58,820 cases are pending in the Supreme Court, 30 per cent of which have been awaiting hearing for over five years and 1,550 cases pending for more than 10 years.

In reality, a heated debate between the two stakeholders is not new. Even when the executive had complete say in the matter, the situation was no better.

At no point of time, the 24 high courts and Supreme Court had all positions occupied. There was always a shortfall and the trend has continued.

Why the problem exists

After the bitter experience of the Emergency in the area leading up to the early 1990s, it was felt that the executive was determined to politicise the appointments and the independence of the judiciary was under threat.

In the Second Judges case, the bench led by chief Justice JS Verma "most reluctantly and with a heavy heart' (as he later put it) invented the collegium system in a "constitutional coup" and "took over the primacy in the appointments of judges to themselves".

With the role of executive becoming even more suspect over the years, the collegium system became imperative. The Second and Third Judges cases asserted the same.

No government at the Centre has ever shown the will to ensure that vacancies in the judiciary are filled. Why?

I found the answer during a conference I attended recently. The event gave me the opportunity to personally interact with a retired top official of the Central Bureau of Investigation and a former judge, which made me aware of the real reason behind the problem.

They said, "There is no way the government would ever ensure the full strength of officers in CBI or judges in higher courts. Politicians are never comfortable with the power that the institutions can wield over them, if they were as independent as they ought to be. And the bureaucracy aids and assists them in exploring hundreds of ways to delay and stall appointments."

The realisation hit me hard as it would anyone else.

An examination of the "vacancies" since 1952, when the first general elections were held, proves it. The realisation is sad but living in ignorance is worse. We must all know why are courts don't have enough judges.

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