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Report No. 121

4.7. The questions which must now be faced are: Is the mechanism functioning or has it become disfunctional? If it has become disfunctional, whether the, failure is of the constitutional functionary on whom power is conferred or search should be made for causes outside the mechanism for its failure? In other words the questions to be posed are:

(1) Is the judicial strength regularly reviewed to keep pace with mounting court dockets?

(2) Are first rate persons of high intellect, unquestioned integrity and character and efficient in discharge of duties being selected by making the mechanism operational?

(3) Are the vacancies filled within reasonable time which is the obligation of the President?

A citizen of this country has a constitutional right to have a forum easily accessible for the resolution of the disputes by efficient Judges and within a reasonable time. Is this object achieved? If the power to appoint inheres duty to appoint and if it can be shown that the appointments are tardy, inordinately delayed, not of the quality expected, then not only failure can be ascribed to the centres of power but also to the mechanism. In that event, a rethinking in this direction is a high priority necessity.

4.8. After working of the mechanism for four decades, the situation on this front is depressing and has reached such a critical stage which provoked a former Chief Justice of India to send a warning that the system of administration of justice is about to collapse.1

1. P.N. Bhagwati, Law Day Speech on 26 November, 1986.

4.9. It has been succinctly pointed out in the earlier part of this report that there is an inordinate delay in filling in the vacancies. The review of the manpower strength for superior judiciary is not undertaken regularly and at regular intervals. Even when such a review is done, as in the case of Supreme Court of India where the strength has undergone upward revision at the hands of Parliament on four different occasions-1956 (7 to 10), 1960 (10 to 13), 1977 (13 to 17) and 1986 (18 to 25), it more or less remains a paper exercise.

While augmenting the strength, the Judges are not put in position by selection and appointment in time. This becomes clear from the statistical chart (See Annexure II). Similarly, in the High Courts the situation is still worse. The vacancies are not filled in for a long time. When, additional strength is sanctioned, more often couple of years are spent in making the appointments by which time, there being a direct and inseverable relation between the strength of the Judges and the disposal of cases, the arrears have further piled up necessitating a further upward revision of the strength.

The whole thing moves in a vicious circle. This position is almost admitted on all hands and it is causing serious dislocation in the functioning of the judiciary. The fact situation, as disclosed in Annexures IV and V showing the linkage between the Judges in position and disposal of cases and deemed disposal of cases if vacancies were filled in time, would unquestionably show that the failure on the front of appointments is largely responsible for total dislocation in the functioning of the superior judiciary. The situation has reached such an impasse that a radical rethinking in this behalf is inescapable.

4.10. Failure to fill in vacancies gives rise to canards, further widening the credibility gap that has become visible. Whenever a vacancy is not filled in time and as the whole process of selecting personnel is carried on in secrecy, one is at a loss to exactly locate the centre at which the delay occurs. In the matter of appointment to Supreme Court, the two constitutional functionaries involved in the process of selection are the Chief Justice of India and for all practical purposes, the Minister of Law and Justice, Government of India.

Both of them are in Delhi and can easily devise a meeting for discussion, deliberation and conclusion. In such a situation, to resort to unending correspondence is an exercise in futility. Every Chief Justice would be keen to so arrange the affairs of his court as to provide for effective management of dockets. Usually, the historian divides, for the purpose of evaluation, the period in the court by referring to the period for which a given individual has functioned as Chief Justice.

Every Chief Justice would like that during his regime, the court rose to the occasion, responded to the demands made on it, provided an opportunity for easy accessibility and so managed the dockets as to reduce the arrears and the time spent in disposal of cases. Every such Chief Justice is aware of the day on which the vacancy is to occur save in the rare case of death or resignation. He would ordinarily be expected to initiate the process of appointment by recommending a name or names for filling in vacancies which are likely to occur.

The process he would start would be in advance of the occurrence of the vacancy. His constituency is by and large 200 to 250 High Court Judges. He keeps federal principle in view as also partly communal representation. Save this limitation, he has free and unhindered choice. The bio-data of the person concerned is irrelevant because a recommendee has been working as a Judge of the High Court for over five years. The moment he decides to select and recommend the name, he can send it down to the Minister of Law and Justice.

The discussion can follow in no time and the appointment can be processed and completed much in advance of the occurrence of the vacancy. Such a thing is not happening is unquestionably established and is an incontrovertible albeit unpalatable truth (see Annexure II). Now, as suggested hereinabove, the Chief Justice would be keen to fill in the vacancy. The inescapable conclusion is that the failure is in the Ministry of Law and Justice. It is established by what the former Chief Justice of India soon after laying down the reins of office frankly confessed:

"The Government has a great power of filibustering. I will tell you what happens. I say this man must be appointed Chief Justice. The Government has got the power of appointing an acting Chief Justice. The Government says, 'We are not doing anything against you. But you see, he disseves to be appointed. Let us consider it'. Now you see, if that person is kept as acting Chief Justice for say, six months, eight months, one year, two years, acting Chief Justices have been kept in office for three years. Now I find that the administration, the High Court is suffering grievously.

Then what do I do? I have to give in. I have to give in not because I knuckle under the Government's pressure but in the interest of the institution. Or else what happens is this: supposing there is no agreement between me and the Government on certain appointments to the Supreme Court or to the High Court no appointments are made. As I told, Mrs. Gandhi never overruled me the Government has got every weapon in its hands. It may not differ with you, but it may not agree with you. So the vacancies "are kept unfulfilled".1

Further, the process of selection is kept a closely guarded secret. One thing must, however, be mentioned that very recently the Minister of Justice stated in the Parliament that the Chief Justice has not made his recommendations till then for filling in not less than twelve vacancies in the Supreme Court.2

1. Y.V. Chandrachud, quoted in R.K. Hegde The Judiciary Today: A Plea for Collegizzm, 51.

2. A.K. Sen, Minister of Law & Justice, Intervened in Reply to A Question in Lok Sabha on 10-3-1987.

4.11. Locating with certainty the centre where delay occurs in the matter of appointment to High Court is rather difficult inasmuch as five centres of power are involved in the matter of processing a proposal for such an appointment. Ordinarily save in exceptional cases, the Chief Justice of the concerned High Court initiates a recommendation. It is sent to the Governor of the State. The Chief Minister of the State is involved in the consultation. Thereafter, the recommendation is sent to the Ministry of Law and Justice, Government of India.

The Ministry sends it to the Chief Justice of India. And finally, the Ministry draws up the proposal processes it through the Prime Minister and the President makes the appointment. Cases are not unknown where Chief Ministers have killed proposals by not forwarding them to the Ministry of Law and Justice.1 It is also known that where Chief Justice of the High Court, the Governor and the Chief Minister of the State, and the Chief Justice of India have concurred in one recommendation, the recommendee was not appointed and the reasons for non-appointment were never communicated.2

The delay may occur, therefore, at any one of those stages but the delay is horrendous, as statistically established in the Tables in Annexures II & III. Therefore, it is permissible inference from these incontrovertible facts that the mechanism has become disfunctional and static resulting in vacancies not being filled in for a very long time causing tremendous dislocation in the functioning of the superior judiciary.

1. S.P. Gupta v. Union of India, Supp SCC 87.

2. See Annexure VI, Q. 8, Gujarat High court.

4.12. Having exposed the failure of the present system, one would extend the area of search to find out a new model. Such a search should be unbiased,' free from prejudice and wholly uninhibited. The Commission would therefore, look around the world to acquaint itself whether any existing model will deliver the goods or indigenisation of such a model would be helpful or totally devise a new one.



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