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Report No. 121

Decisions to Create Posts

Position as on 20-3-1987

Sl. No.

High Court

Permanent Judges

Additional Judges

Total

1

Ailahabad

2

2

2

Andhra Pradesh

6

4

10

3

Bombay

2

10

12

4

Calcutta

3

5 8

5

Delhi

-

6

6

6

Gauhati

-

1

1

7

Gujarat

5

4

9

8

Himachal Pradesh

-

1

1

9

Jammu & Kashmir

1

3

4

10

Karnataka

4

2

6

11

Kerala

-

7

7

12

Madhya Pradesh

-

2

2

13

Patna

4

-

4

14

Punjab & Haryana

-

3

3

15

Rajasthan

-

6

6

Total

25

56

81

3.7. At this stage certain peculiar features of the mechanics employed in filling in vacancies must be unravelled. To start with, in the year 1980, five Judges of the Supreme Court retired in quick succession. The first vacancy in that year occurred on 1-8-1980, that followed by the next one on 12-9-1980, the third on 15-10-1980, the fourth on 15-11-1980 and the fifth soon after on 16-1-1981. None was filled in till January 1981. Similarly, in the year 1985, five vacancies occurred in quick succession. The first occurred on 9th May, 1985, the second on 12th July, 1985, the third on 16th August, 1985, the fourth on 1st October, 1985, and the last on 22nd December 1985.

The sanctioned strength of the Judges of the Supreme Court has been raised from 18 to 26 Judges, including the Chief Justice of India, with effect from 9-5-1986.1 Analysing the position of the vacancies, there were 12 vacancies as on 31-3-1986. It may be stated that two vacancies have been filled in May 1987. However, it may be recalled that two Judges are to retire during vacation in June 1987 and two sitting Judges are busy with a Commission leaving the effective working strength at 12, i.e., half of the sanctioned strength.

1. The Supreme court (Number of Judges)Amendment Act, 1986, came into effect from 9-5-1986.

3.8. In order to substantiate the inescapable conclusion that there is long unexplained delay in the matter of filling in vacancies in the Supreme Court and High Courts, two separate tables are compiled showing the date on which vacancy occurred and the date on which it is filled-in, covering the period 198186 in the Supreme Court and 1980-85 in the High Courts. Tables are set out in Annexures II and III, respectively.

Applying the law of averages, the delay in filling in vacancies in the Supreme Court on an average comes to 3 months approx, as per the information supplied (Annexure II). Similarly, delay in the matter of appointment in various High Courts is tabulated on the information supplied by the High Courts and the average is worked out for each High Court in respect of which the information was made available:

1

Andhra Pradesh 3 years.

2

Delhi 6 months.

3

Gujarat Average can't be worked out.

4

Himachal Pradesh 5 years 4 months 11 days.

5

Jammu & Kashmir 2 years.

6

Karnataka 1 year 6 months.

7

Kerala 1 year 3 months.

8

Madhya Pradesh 1 year 6 months.

9

Orissa 9 months.

10

Patna 2 years.

11

Punjab & Haryana Average can't be worked out.

3.9. One would like to draw attention to a glaring case of utter failure to fill in the vacancy for a long time. One post of additional Judge in the Madhya Pradesh High Court is vacant from 10th August, 1977 to-date, i.e., for more than nine years. The High Court of Jammu & Kashmir with a total strength of 7 Judges had been working with only 3 Judges in 1980-81 and only 4 Judges in 1983-84. Similarly, a small High Court like the one in Himachal Pradesh at Shimla has a sanctioned strength of five permanent Judges and two additional Judges. Its earliest vacancy unfilled is from September 1983, the second from August 1986 and the third from March 1987.

3.10. Leaving aside any other considerations, there is a minimum requirement of 650 regular cases to be disposed of per Judge per year. It is not necessary to set out how this figure is arrived at save saying a committee of three senior most Chief Justices have compiled the same.1 Applying the yardstick, apart from any other cause, the failure on the front of filling in vacancies within a reasonable time has affected disposal in the manner set out in the Annexure IV, for the Supreme Court and in Annexure V for the High Courts.

1. Quoted in Conference of Chief Justice of High Court and Chief Ministers and Law Ministers of the States.

3.11. The Law Commission in order to acquaint itself with the current thinking in the High Courts as also to invite Judges of the High Court to participate in the evolution of the subject of manpower planning of judiciary approached each High Court with a request to state freely and fearlessly the causes for the delay in filling in vacancies and at which point the delay occurs.1

The commission addressed various queries to the chief justices of each High Court bearing, inter alia, on the question whether in the matter of selecting and recommending a member of the Bar or a member of the district judiciary any difficulty is experienced in view of the orchestrated criticism that the power to transfer has been conceded to the executive without the consent of the Judge sought be transferred by the decision in Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328. and S.P. Gupta v. Union of India, AIR 1982 SC 149. Chief Justices were requested to shed light on the criteria, yardstick or other relevant considerations which shape the decision to recommend a member of the Bar to be a Judge of the High Court. Amongst others, the query elicited information on:

(i) income aspect,

(ii) standing at the Bar;

(iii) caste;

(iv) reservation principle and any other considerations which have an impact on the decision to select and recommend a candidate.

By and large, the view was unanimous that income of the person under consideration is certainly taken into consideration, qualifying that it is not the only criterion. Standing at the Bar would ordinarily be a relevant consideration and it has been so said save a tiny minority. By and large, the view was that caste is not a relevant consideration except where attempt is made to recruit someone from scheduled castes or scheduled tribes. This will also cover the last query on the subject.

1. See Annexure I.

3.12. The one important question imposed was whether a member of the Bar to whom a judgeship in the High Court was offered disclosed hesitation and wavered because the executive could transfer him from one High Court to another High Court without his consent as per the decisions of the Supreme Court. Out of 18 High Courts the Chief Justices of three High Courts have expressed their apprehension that a possibility of transfer has swayed the consideration of some members of the Bar about accepting judgeship.

Some others are of the view that it has a marginal effect but none has been able to specify a single specific case where a practising advocate declined to accept judgeship voicing his apprehension that he will not accept the same as he is likely to be transferred without his consent.

3.13. The query about the delay in making appointments elicited information that the delay was generally either at the State level or at the Central level or occasionally at both the levels, though the Chief Justice of a premier High Court stated that sometimes delay occurs in finding out a proper person for being recommended. At least one Chief Justice has frankly stated that amongst various causes of delay, one which is disturbing and abominable is political interference, and one other frankly stated that the vacancy is not filled in because it is treated as part of political patronage, distribution of which takes time.

Without analysing all the causes here, the information has been tabulated question-wise and is annexed to this report at Annexure VI. One Chief Justice pointed out something which is universally known that a very reprehensible tendency has become discernible now in that as soon as the name of a person under consideration is either espoused or published a spate of letters start pouring in, making all sorts of real or imaginary allegations against the recommended. Inquiring into all the allegations takes time even if they are ultimately proved to be baseless.

3.14. Recalling that mechanism for processing a proposal for appointment of a person as a Judge of a High Court is complex and complicated and involves nearly six constitutional functionaries, the delay is inherent in it. But as far as the appointment to the Supreme Court is concerned, there ought not be any delay because the power of appointment vests in the President who has to act on the advice of the Cabinet and, according to Rules of Business, the Minister of Law and Justice will be in charge of this function.

Therefore, only two constitutional functionaries are involved, namely, the Chief Justice of India and the Minister of Law and Justice. Accepting that the normal method is followed, namely, that the Chief Justice of India will initiate the process of recommendation of a person, usually a sitting Judge of the High Court for filling in the vacancy in the Supreme Court, he will forward the same to the Minister of Justice. If any confabulation is necessary, both are in Delhi and reside very near each other. Therefore, the interaction of each can be completed in a short time.

If the process starts three months before the occurrence of the vacancy, even with a long drawn out discussion, the process can be over well before the vacancy occurs and the appointment can be made so much in time as not to permit the vacancy remaining unfilled even for a day. The assumption underlying this statement is that the constituency from which selection is made is a limited constituency of High Court Judges who have put in more than five years' service as a Judge of the High Court and about whose credentials no enquiry is required to be made as he is a sitting Judge of the High Court.

If there are roughly 450 High Court Judges and the selection is confined to those who qualify and are not about to retire, the selection is to be made from roughly about 150 to 200 Judges. Again, federal principle is generally kept in view which would dictate a choice limited to High Courts which are not represented in the Supreme Court. More often, the question of minority representation is also kept in view.

The scope, thus, for selection of talent is so limited that the choice sometimes dictates itself. No time, therefore, would be required to be spent as the choice is not from a wide area or from unlimited number. It is not unknown that since some time a new practice has grown up on that time there is an informal prior discussion between Chief Justice of India and the Minister of Justice and after a consensus is reached the formal proposal is made.

Then the process will be accelerated. And yet the delay in filling in vacancies in the Supreme Court is enormous and remains wholly unexplained. The time taken in filling in vacancies in the Supreme Court occurring from 1980 onwards have been set out in the Schedule at Annexure II. It would appear at a glance that even as on today, twelve vacancies have remained unfilled for more than a year.



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