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Report No. 121

Chapter III

Fall out of the System and Present Position

3.1. The method of appointment to the superior judiciary set out in the just preceding chapter has thus been in vogue for over four decades. Has this system stood the test of time? Is it functionally sound? Does it sub-serve the purpose for which it was devised? Is it result oriented? Does it meet with the requirements expected of it in the Constitution itself? Are any shortcomings visible? If so whether do they disclose some basic defects in the system or infirmities or short coming or any error in the mechanics of working of it?

3.2. The Law Commission applied its focus on the method of appointment of Judges in the year 1979. 1In fact, since the supersession controversy in 1973 and the repeat performance in January 1977, the method of appointment to superior judiciary became the subject-matter of controversy amongst the Judges and Members of the legal profession and law academics. It attracted the attention of the Government of India.

Also the Secretary, Ministry of Law, Justice and Company Affairs addressed a letter dated December 29, 1977, to the Member-Secretary, Law Commission, stating that the Prime Minister directed that the question of the appointment of Judges of the High Courts and the Supreme Court be examined, which led to the reference to the Law Commission so that the 'Commission might study the problem in depth and explore the possibilities of improvement.'

Thus, even the Government of India, at relevant time felt that the mechanics for appointment of Judges to the superior judiciary till then in vogue need an indepth study and the direction in which improvement can be made so as to make it functional. This may help in expeditious selection of the right sort of people and also the problem of mounting arrears may be tackled by avoiding any avoidable delay in the matter of making appointment. The Law Commission, after giving the matter its earnest consideration, concluded as under:2-

"After giving the matter our earnest consideration, we agree with the High Courts and are of the view that the present constitutional scheme which was evolved by the framers of the Constitution after much reflection and after taking into account the various modes of appointment in different countries, is basically sound.

It has worked, on the whole, satisfactorily and does not call for any radical change. There are, however, certain aspects of working of the scheme about which we consider it necessary to make recommendations with a view to bringing about what we believe to be improvement in the working of the scheme. We shall make our recommendations when dealing with different aspects of the matter."

(Emphasis supplied).

Thus, as late as August 1979, the Law Commission, after having held discussions with the various High Courts, was of the firm opinion that the existing system is basically sound and has worked on the whole satisfactorily and does not call for radical change. In this conclusion reached by the Law Commission, it has the support of the broad spectrum of opinion of the High Courts.

Minutely going through the report of the Law Commission as also the questionnaire issued by it, it appears that considerable delay in making appointment to the superior judiciary had not become visible or was not so gross as to call for its analysis and the causes for the delay. No statistical information appears to have been compiled to reach the conclusion one way or the other.

1. LCI, 80th Report.

2. Ibid.

3.3. In the Seventy-ninth Report dealing with the delay and arrears in High Courts and other appellate courts, the Law Commission specifically examined the question of delay in filling in vacancies in the High Courts. After collecting the requisite information about the institution and disposal of cases in the High Courts, it concluded that the number of cases disposed of by the High Courts in the country as a whole was less than the number of cases instituted during the year 1977. 1In recommending various measures for speedy disposal of cases, inter alia, it recommended increase in the Judge strength of the High Courts.

As a sub-set, it enquired whether the delay in filling in vacancies in the sanctioned strength of the High Courts contributed to the delay in disposal of cases. It noticed that though the sanctioned strength of the High Courts in the country during the year. 1977 was 352, only 287 Judges on an average were in position. Likewise, in the year 1976, even though the sanctioned strength was 361, only 292 Judges were in position. The disparity between the sanctioned strength and the number of Judges in position was apparently due to the fact that vacancies in the posts were not filled in as soon as they occurred.

It concluded that, in its considered opinion, the delay in filling in the vacancies is one of the major contributing factors responsible for the piling accumulation of arrears. In its view, when a vacancy is expected to arise out of the retirement of a Judge, steps for filling in the vacancy should be initiated six months in advance.2

In the summary of recommendations for improving upon the method of appointment of Judges, it reiterated its earlier view that in case of normal vacancies in the High Court, the initiative (for filling up the vacancy) should be taken by the Chief Justice at least six months before the expected date of the vacancy, in order to obviate the possibility of the vacancy remaining unfilled for a long time after the retirement of the previous incumbent.

It also recommended that the Chief fustice while making the recommendation should consult his two seniormost colleagues and any recommendation of the Chief Justice which carries the concurrence of his two seniormost colleagues should normally be accepted.3

1. LCI, 79th Report.

2. Ibid.

3. LCI, 80th Report, Recommendations 2, 3 and 4.

3.4. In the matter of appointment of a Judge to Supreme Court, it was recommended that the Chief Justice of India should consult his three seniormost colleagues and should in the communication incorporating his recommendation, specify the result of such consultation and reproduce the views of each of his colleagues so consulted regarding his recommendation. 1

It appears that between 1977 and 1979, the Chief Justice of India started consulting two of his seniormost colleagues and then expanded his consultation to include four of his seniormost colleagues. Thereafter, the scheme appears to have been put in cold storage. This implies that the recommendation of Law Commission was acted upon in part for a short duration, though there is no evidence to show whether the report was accepted as a whole or in part.

It is permissible to infer that the Chief Justice of each High Court also adopted the recommendation. The process for making appointment primarily by initiating the recommendation has to start six months before the date on which the vacancy is likely to occur. Consequently, the vacancy would be filled on the very day on which it occurs and the Judge strength for handling cases would remain unimpaired even for a day.

1. Ibid., Recommendation 32.

3.5. If the assumption was that the system is sound and peripheral changes would make it resilient, effective and functional, it is in the fitness of things to find out, what is the present factual situation nearly eight years after the report was submitted. The statement extracted hereunder tells its own tale:-

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