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Report No. 121

3.15. Failure to fill in the vacancy is failure to perform a constitutional duty. It is the responsibility of the State not only to set up adequate number of courts but to provide manpower for its functioning. It is the duty cast by the Constitution and failure to perform the same can surely be styled as failure to perform the said constitutional duty.

Disposal of cases amongst other things, is directly proportionate to the number of the Judges in position. Unfilled vacancies is one of the prime causes for mounting arrears. Schedules at Annexures IV & V would show the delay in filling in vacancies in the Supreme Court and the High Courts and its impact on the disposal of cases and the mounting graph of arrears.

3.16. Before concluding this Chapter, it needs to be pointed out that this failure on the front of making appointments to fill in vacancies within reasonable time has not only attracted the attention of the Judges, jurists and litigating public but also of the Parliament.

The Thirty-first Report of the Estimates Committee expressed its regret that despite their detailed recommendation set out in the eightieth Report of the Law Commission of India, the situation has further deteriorated and the time lag in filling in the vacancies in the Supreme Court and the High Courts has enlarged on account of a further delay in attending to this urgent task. The Report noted with regret that the delay in filling in the vacancies by the authorities charged with a duty to undertake this task is primarily responsible for the enormous increase in the arrears.

The Committee accordingly suggested that ways and means have to be found out to replace the present procedure for appointment of Judges as the present mechanism is partially responsible for inordinate delay in selection and appointment of Judges. Amongst others, Thirty-First Report of the Estimates Committee also provides an adequate justification for the present report.1

1. 31st Report, Estimates Committee.

3.17. Therefore, the conclusion is inescapable that the mechanics, as devised in the constitutional provisions for making appointment to the superior judiciary, appear to be inadequate and incapable of providing the manpower inputs within a reasonable time.

This experience would make it difficult to continue to subscribe to the view that the present constitutional scheme as to the method of appointment of Judges is basically sound or that it has on the whole worked satisfactorily and does not call for any radical change. A new approach has become inevitable otherwise the system is likely to be crushed under the weight of its own debris.

3.18. Supersession in the matter of selection of the Chief Justice of India, transfer of Judges, and non-confirmation of additional Judges of the High Courts in exercise of the power conferred by Article 222 of the Constitution, are some other developments which have given rise to an apprehension that the independence of judiciary, said to be the cardinal feature of the Constitution, is likely to suffer erosion at the hands of the Executive.

3.19. Since the inception of the Constitution, the office of the Chief Justice of India was filled in by promotion of the next man according to seniority. This principle was departed from in April 1973, when the then Chief Justice of India demitted office on reaching the age of superannuation but the Judge next in succession was not promoted to the office of the Chief Justice of India. He and two others were superseded and the Judge fourth in rank was promoted as the Chief Justice of India.

This was seen by the Bar as a threat to the independence of the judiciary, by some as subversion of the Constitution from within and a manifest attempt to undermine the court's independence. Again, in January 1979, on the retirement of Justice A.N. Ray, the next Judge according to seniority was passed over and the Judge next to him was appointed as Chief Justice of India, the controversy, reenacting the events of 1973, ensued.

3.20. The Government of India, recalling the earlier report of the Law Commission on Judicial Administration, defended its action stating that succession to the office of the Chief Justice of India cannot be regulated by mere seniority, The Commission had recommended that a healthy convention should be set up that appointment to the office of the Chief Justice rests on special consideration and does not as a matter of course go to the seniormost puisne Judge.

If such a convention was established, it would be no reflection on the seniormost puisne Judge if he is not appointed to the office of the Chief Justice. The Commission had also recommended that such a convention must also be established in the case of appointment of Chief Justice of a High Court. Once such a convention is established, it will be the duty of those responsible for appointment to choose a suitable person for that high office, if necessary, from among persons outside the court.1

1. LCI, 14the Report.

3.21. It is during this controversy that a reference was made by the then Law Minister and another Minister to the Government of India to the social philosophy of the person to be considered for appointment as the Chief Justice of India being in tune with one of the Government of the day. This statement gave rise to a bitter controversy and it was said that this is the starting point of setting up a committed judiciary.

3.22. Article 222 of the Constitution confers powers on the President to transfer a Judge from one High Court to any other High Court after consultation with the Chief Justice of India. For the first time in the history of India, sixteen Judges from various High Courts were transferred from the High Court in which each was appointed, to other High Courts in the year 1976. Justice S.H. Sheth, a Judge of Gujarat High Court challenged the constitutionality of the order transferring him from Gujarat High Court to Andhra Pradesh High Court.

A full Bench of the Gujarat High Court declared the order constitutionally invalid.1 The Supreme Court in the appeal by Union of India by a majority more or less upheld the decision of the High Court. What transpired from this exercise was that selective transfer of judges was held to be punitive in character and punitive transfer was held to be outside the purview of Article 222. This approach gave rise to a debate whether policy of transfers in exercise of power conferred by Article 222 can be sustained.

If the policy of transfer is otherwise valid, any transfer in implementation of the policy would be at least not punitive in character. It appears that somewhere in 1982, Government of India took the policy decision to have Chief Justice of each High Court from outside the jurisdiction. Pursuant to this policy decision, numerous transfers were made. There is still a body of opinion that the power to transfer conferred on the executive poses a threat to the independence of the judiciary.

This aspect has been discussed in detail in S.P. Gupta v. Union of India, 1981 Suppl. SCC 87. At any rate, in pursuance of the policy enunciated, number of Chief Justices were transferred from the High Court of origin to other High Courts. Today we have Chief Justice from outside the jurisdiction in the High Courts of Madras, Kerala, Andhra Pradesh, Karnataka, Madhya Pradesh, Rajasthan, Gujarat, Punjab and Haryana, Uttar Pradesh, Bihar, Orissa and Sikkim. Of course, the policy is being implemented in fits and patches but by and large the policy is being implemented.

1. S.H. Seth v. Union of India, (1976) 17 GLR 1033.

3.23. Since the Constitution became operative, the strength of each High Court, subject to review at intervals, consisted of permanent Judges and additional Judges. In fact, the Constitution was being so implemented that as a rule a Judge of a High Court would, in the first instance, be appointed as additional Judge and, in course of time when the vacancy in the permanent strength occurred, he would be confirmed as permanent Judge. Even though this was not in strict compliance with the constitutional mandate, that practice was invariably in vogue all these years.1

The issue came to the fore when the term of two additional Judges of Delhi High Court expired and was not renewed and they were consequently dropped. One of them challenged the action of the Government of India in the case reported as S.P. GUpta v. Union of India. There was a very interesting and intelligent debate about how in actual practice power conferred by Articles 217 and 224 was exercised. This inquiry unravelled the fact that the practice till then followed both by the judiciary and the Government was not strictly in conformity with the constitutional mandate.

That apart, there was hardly a case in which additional Judge was not confirmed save and except where he himself disclosed a desire not to be confirmed. It is for the first time that the two additional Judges of Delhi High Court were not confirmed and one of them resigned. It was said that non-confirmation of additional Judges would expose such additional Judges to the sweet mercies of the executive and would wholly undermine their independence. There are very interesting observations in the judgment of each Judge composing the bench but it is not necessary to extract the relevant observations here.

The consensus was that an additional Judge is not on probation and he has a right to be considered for appointment for a further term on the expiry of his initial term or to be confirmed when a vacancy in the permanent cadre occurs. Even though in the past, the additional Judges were confirmed, power is now claimed by the executive that it may not grant to the additional Judge further extension of the term or confirm an additional Judge. This situation it is said is not conducive to the healthy development of judiciary.

1. Ibid.

3.24. A threat to judiciary may emanate from a hitherto grey area such as the organised Bar. A new phenomenon of disturbing potentiality has now become evident. The organised Bar in various States has frequently resorted to strike under the pretext of insulting the independence of judiciary.

The strike by the Bar of Allahabad High Court against one more bench being set up in Western U.P., the strike by the Bar of Gujarat High Court as well as the bar of the whole of Gujarat against non-appointment of some persons whose names have been recommended for appointment to High Court, the strike against the supersession of three Judges in the Supreme Court of India, the strike by the Bar of Madras High Court questioning the recommendation of a Law Secretary for appointment to the High Court,
the strike by the bar of Delhi High Court and a token strike by the Supreme Court bar on the question of appointment of Chief Justice of Delhi High Court and a Judge of the same court, and the strike by the bar of Gujarat High Court about non-confirmation of it acting Chief Justice, would, when properly analysed, show that such frequent resort to strike under the pretext of supporting the independence of the judiciary would, in the long run, make the members of the judiciary so much dependent on the Bar that it would undermine the independence of judiciary.

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