Inadequate judge strength is the root cause behind the delay in dispensation of justice and resultant huge backlog of pending cases in courts. In proportion to its population and litigation growth, India has the lowest number of judges among the major democracies of the world - just 17 judges per million people (one judge for a population of over 58,000) as against 58 judges per million people in Australia, 100 in UK, 130 in the US, 170 in China, and 250 in Germany.
India has only 22,000 judges almost 30 years after the Law Commission recommended a total number of 40,000 judges. Existing judge strength further declines when judicial vacancies are not promptly filled. The track record of the central and state governments in this respect is not one that generates confidence. That the Centre needs to be constantly goaded by the Supreme Court to fill the vacant positions is a sad commentary on the government's oft-repeated concern for speedy justice.
Needless to mention that there are still six vacancies in the Supreme Court itself. On October 1, the total number of vacancies of high court judges stood at 387 in courts that should together have had 1,079 judges. Despite a recent string of appointments, the Allahabad HC is still 50 judges short of the sanctioned strength of 160; the Calcutta HC has more than half of the 72 judges' posts still lying vacant.
Out of 24 high courts, Andhra Pradesh and Telangana, Calcutta (Kolkata), Delhi, Himachal Pradesh, Jharkhand and Manipur are without a full-time chief justice. There is no move to fill these vacancies soon, as the Memorandum of Procedure (MoP) for judicial appointments hasn't been finalised yet due to differences between the judiciary and the executive over its contours.
Nor is the state of lower judiciary any better. Nearly 4,882 out of 21,017 sanctioned post of judges in subordinate courts are yet to be filled, where 2.5 crore cases across the states await disposal. The Supreme Court's timeframe for such appointments is not being followed in a majority of cases. Exams are not conducted frequently enough to fill vacancies as they arise. A majority of litigants who approach these courts in the hope of getting justice or relief go back empty-handed. Cases are simply piling up for want of manpower. The judges available are overburdened.
Taking a serious note of the grim situation last year, former chief justice of India T S Thakur lashed out at the Centre for delaying the appointment of judges and trying to bring the judiciary to a grinding halt.
He also made a rare emotional, teary-eyed appeal to the prime minister at the conference of chief ministers and chief justices to rescue the judicial system from its enormous workload and chronic shortage of judges, but it didn't have any fruitful effect despite the latter's promise to do so.
In another scathing attack on the Centre for delaying the appointment of judges, a Calcutta high court bench in July this year, while hearing the bail plea of actor Vikram Chatterjee involving the death of a model, termed the shortage of judges as a very major problem that the oldest high court of the country was encountering.
The bench noted that his bail application could not be listed on time by the court due to which he was arrested, leaving his plea infructuous. Castigating the Centre's nonchalant approach on such a key issue, the HC said it was working with little less than 50% strength (34 judges) and warned of action if urgent steps were not taken to fill vacant positions.
There is a government-judiciary stand-off over the finalisation of the MoP. The government is deliberately delaying appointment of judges because it is miffed over the idea of "judges appointing judges". Inadequate manpower and poor infrastructure is leading to what a former CJI called an "avalanche" of litigation.
The victims in this situation are hapless litigants and poor undertrials whose cases drag on for years. Any attempt at securing justice is an ordeal and financially ruinous for many who knock on the doors of courts for justice or relief.
Under such pressing circumstances, it should be the top priority of the government to resolve its differences with the judiciary, as the two are vital pillars of democracy and share a common goal of dispensing speedy justice. It is not prudent for them to be locked in an ugly confrontation like this.
If the government cannot reconcile itself to the present collegium system of appointment, it should work to revive the NJAC model again in such a way that it survives judicial scrutiny. Dragging its feet on much-needed appointments is hardly the way to deal with the problem of delivering speedy justice to millions while trying to find a solution to the specific question of how judges should be appointed.
Whatever the selection process of judges in place, it should be speeded up to fill the vacant positions expeditiously in all courts. Whenever a vacancy is expected to arise, steps should be initiated and the process of appointment completed beforehand. Filling vacancies should be an ongoing process, instead of a "once in a blue moon" exercise. In the case of a judge's resignation or death, the selection process should come into play without delay to ensure that the courts function with full strength.
Inadequate judge strength seriously hampers the judiciary's ability to deliver justice in time. It is bound to diminish people's faith not only in the judiciary but in democracy itself. Inordinate delays also mean a high rate of acquittals in criminal cases. Unable to get justice from courts, victims sometimes take the law into their hands to settle scores with culprits. This only aggravates the problem of law and order.
(The writer is an advocate at the Supreme Court and the Delhi High Court)