Judicial vacancies in the Supreme Court must be filled soon to speed up justice delivery

The Supreme Court (SC) is staring at a severe crisis: India’s top court has 25 judges against the sanctioned strength of 31, and if appointments do not happen on time, the gap could swell to an unprecedented 13 (7 more judges are set to retire this year). As the head of the Supreme Court’s collegium, Justice Dipak Misra faces the tough challenge of finalising names of judges and sending them for approval to the Centre, which continues to have differences with the judiciary over finalising of a new Memorandum of Procedure (MoP) to appoint judges to the SC and high courts.

The stand-off between the judiciary and Centre over the appointments of judges has persisted since October 2015 when a five-judge Constitution Bench struck down the National Judicial Appointments Commission Act, which gave the executive a say in judicial appointments. The apex court had asked the government to prepare a new MoP in consultation with its collegium. Minister of state for Law and Justice PP Chaudhary recently informed Parliament that the government has once again asked the collegium to revisit its selection of persons for judicial appointments in the light of the Supreme Court’s judgment against sitting Calcutta High Court judge Justice CS Karnan, holding him guilty of contempt of court. The Centre is keen for a clause in the MoP, which will give it veto power to reject the collegium’s recommendation on the grounds of national security.

The seven Supreme Court judges set to retire this year include the the Chief Justice of India and three who are also members of the collegium - Justices J Chelameswar, MB Lokur and Kurian Joseph – which means in 2018 the top court’s collegium will also witness an overhaul. The other judges who will retire are Justices Amitava Roy, RK Agrawal and AK Goel.

Studies show that India has only 18 judges for every million people, while in the US the judge-to-population ratio is 107 judges for the same number of people. A 2009 law commission report said it would take 464 years to clear pending cases with the current strength of judges. The number of vacancies for judges in the high courts (HCs) stands at 400. Nine HCs are functioning without full-time chief justices. Alarmingly, there are 24 high courts that don’t have a regular head. There is a shortfall of 5,000 judges in district courts.

Soon after he became the chief justice on August 28, Justice Misra made a concerted effort to clear the backlog of cases in SC and reduced the pendency to below 60,000. A similar resolute approach is required to fill up the vacancies in SC and appoint chief juctices to HCs before he retires in October 2018.

The inordinate delay in deciding on cases is one way in which litigants are denied not justice, but even access to justice. It is also time for the government and judiciary to sort out their lingering disagreement on the MoP.