Published on: August 02,2021 11:25 IST
By Khushi Agarwal
Introduction
Despite the final nod of the Collegium of the Supreme Court, it has been around 19months, but the Central Government has not yet approved the recommendations of appointment of few judges and is just delaying the process which the Supreme Court recently criticized.[1]
In February 2020, Centre accused the collegiums for the problem of delayed appointment saying that they are not making timely recommendations.[2]
Everyone is accusing other for delayed appointment. But the problem is faced by the citizens due to all of this. Due to delayed appointment, mechanism of justice delivery gets delayed and as it is said Justice delayed is Justice denied, people are getting delayed justice which almost means that people are not getting Justice.
This article answers the question why so many judges are appointed late.
Judiciary
Judiciary is the third branch of Government known for interpreting and applying the law. It is also known as Guardian of Law as the Constitution empowers it to do so. India works on the principle of Separation of Power given by Montesquieu.
There are three branches of Government, that is, legislature, executive and judiciary and because of this separation of power enshrined under Article 50 of the Indian Constitution, judiciary is totally separated from Executive. This means that Judiciary can work without any interference from other branches and without any fear.
But for Judiciary to function well there is a need of efficient judges to be appointed in all the courts. Indian Judiciary comprises of three level, that is, Supreme Court, High Courts and District or lower courts.
Judges are given a huge respect in the country as everyone is dependent on them for obtaining justice. Therefore, appointment of Judges is a big task which should be given utmost attention.
There are various Articles in the Constitution which deals with this task.
How are judges appointed?
There are different qualifications and procedures for appointing Judges at all the three levels. Article 124 deals with the procedure and qualification of judges at Supreme Court, Article 217 deals with judges at High Court while Article 233 deals with Judges at District Courts.
Qualifications for a District Court Judge are:
- The person must have practiced as an Advocate for at least seven years.
- The person must have been recommended by the High Court.
- The person should not be working in any other Union or State service.
A person can be appointed only after the permission of the Governor and Judge of the High Court of the State.
Qualifications for a High Court Judge are:
- The person must be citizen of India.
- He must have practiced as an Advocate in High Court for at least ten years.
- He must have held judicial office in the territory of India for at least ten years.
- He can hold office till the age of 62 years.
In case of appointing Chief Justice of the High court, consultation of Chief Justice of India and Governor of the State is required while for appointing Judges other than Chief Justice, consultation of Chief Justice of High Court is also required. Judge of the high court is appointed only after President’s warrant.
Qualifications for a Supreme Court Judge are:
- The person must be a citizen of India.
- The person cannot hold office after 65 years of age.
- He must have been a judge of one or more High courts continuously for five years.
- He must have been an Advocate in the High court for at least ten years.
Judges of the Supreme Court can be appointed by the President of India after Consultation of the Chief Justice of India and other Judges of the Supreme Court. In some cases President may consult High Court Judges also.
What are the problems in judiciary?
There are many challenges that the Indian Judiciary is facing currently. But one of the biggest problems is the delay in appointment of judges which is leading to many other problems.
There is already a big shortage of judges in the Judiciary. Ratio of Judge to Population is very low in the Country. As compared to other Countries where there are about 50-70 judges per million people, India only has about 20 judges per million people.
With such a huge gap, it can be very well predicted that the delivery of justice is not as good as it should be and due to this shortage, the result is that it is giving rise to other problem which is pendency of cases.
Total of around 4.4 crore cases were pending in whole India as per statistics of April 2021.[3]The Covid-19 pandemic was also a major reason of such a spike in the number of pending cases. To reduce these numbers of pending cases, first there is a need to induct more judges in the Judiciary and fill the vacancies.
But the problem of delayed appointment is a major drawback that needs to be corrected. Each and every appointment of a judge takes so much time that till a single judge is appointed, multiple cases gets added. Around 419 posts of 1080 are lying vacant in the Judiciary.[4]
The major delay is because of the hectic process of appointment if a judge. In the Central Government, the Union Law Minister handles these issues and sets up the suggestions of the collegium before the Prime Minister who informs the President with respect to India to sign the proper warrant of arrangement.
In the event of any contention between the collegium’s suggestion and the Prime Minister’s recommendation, the President of India goes about according to the Supreme Court collegium’s view. Along these lines, the Supreme Court collegium is the genuine appointed authority producer in the country.
In legal arrangements, the Central Government has a restricted job. It checks the forerunners of suggested people, and this cycle requires some investment.
It gathers the vital contributions about the people suggested for legal arrangements through the Intelligence Bureau and some other regulatory organizations engaged with the knowledge assortment framework in the country.
It sends that load of information sources/reports to the CJI who presents something similar before the collegium for its endorsement or thought.
Eventually, it is the Chief Justice of India driven Supreme Court collegium that takes an official choice in the matter. It has full force either to acknowledge or dismiss the Central government’s view with respect to the arrangement of an adjudicator in the Supreme Court and the High Courts.
On the off chance that the Supreme Court collegium emphasizes its proposal, the Central Government will have no choice except for to choose him/her as an appointed authority of the High Court. Notwithstanding, as no timeline is decided in any judgment of the Supreme Court, the Government had some extension to defer the arrangement interaction to finish certain customs.
The Government has an opportunity to delay the appointment process to complete all the formalities.
This lacuna gave a chance to the public authority to postpone arrangements of certain people who didn’t conform to its belief system or thinking.
Since 2014, the public authority has utilized this force severely and postponed the arrangements of a few people and this has subverted legal power and autonomy.
Therefore, the need is to first fix a particular time period for completing the appointment of a judge so that the delay cannot be made by the Government in the process of appointing a Judge. This is the problem which needs to be fixed to solving the problem of delayed appointments of Judges.
In M/S PLR Projects Pvt. Ltd. Vs Mahanadi Coalfields Ltd. and Ors[5], the issue of opening of judges in the High Courts came up under the watchful eye of the Supreme Court when it was hearing a request looking for move of a case from the High Court of Orissa because of the legal counselors’ strike there.
For this situation, the Court saw that the High Courts are in emergency as there are just about 40% opportunities and a significant number of the bigger High Courts are working at under 50% of their authorized strength.
The Court dismissed the dispute that setting out a timetable would be in opposition to specific perceptions made in the Third adjudicator case, saying the perceptions alluded to manage the legal survey of a specific arrangement and not such parts of the arrangement cycle as today.
At last, the Court gave the accompanying bearings to facilitate the arrangement cycle of the High Court judges. The following directions were issued:
- The Intelligence Bureau ought to present its report/contributions inside 4 a month and a half from the date of suggestion of the High Court collegium to the Central Government.
- It would be helpful that the Central Government forward the file proposals to the Supreme Court inside 8 to 12 weeks from the date of receipt of perspectives from the State Government and the report/contribution from the Intelligence Bureau.
- It would be for the Government to from that point continue to make the arrangement quickly on the previously mentioned thought and without a doubt if Government has any reservations on the appropriateness of an individual or in the public interest, inside a similar time it could be sent back to the Supreme Court Collegium with the explicit purposes behind reservation recorded. In the event that the Supreme Court Collegium after thought of the aforementioned inputs actually emphasizes the proposal consistently, such arrangement ought to be handled and arrangement ought to be made inside three to about a month.
The Court additionally saw that the Chief Justice of India should send the suggestions/counsel to the Union Law Minister inside about a month and the last should set up the proposition to the Prime Minister inside three weeks for the guidance of the President of India.
The Court has set out these bearings to assist the arrangement cycle of the High Court decided in the country. It was quite required given the condition of opportunities and unpaid debts of cases in the High Courts.
Individuals need ideal equity and both the legal executive just as the chief should assist individuals with getting quick equity.
Conclusion
Speeding up the process of appointing Judges has become the need of the hour. There is a big shortage of Judges in the Indian Judiciary system and when few Judges are recommended for filling the vacancies, there is a problem of delay in appointment.
Each and every appointment of judges takes around years which is turn is leading to multiple cases pending and thus, delayed Justice to the Citizens. India is being known for the number of cases pending.
This problem needs to be solved otherwise the whole purpose of Judiciary will be destroyed. Thus, the process of Appointment of Judges needs to be increased.
References
- Utkarsh Anand “Supreme Court pulls up govt over delay in appointment of judges”, Hindustan Times, 26 March 2021 available at: hindustantimes.com(last visited on 26 July 2021)
- HT Correspondent, “On delay of appointment of HC judges, Centre says collegium responsible too”, Hindustan Times, 18 February 2020, available at: hindustantimes.com(last visited on 26 July 2021)
- Pradeep Thakur, “Pending cases in India cross 4.4 crore, up 19% since last year”, The Times of India, 15 April 2021, available at: /timesofindia.indiatimes.com (last visited on 26 July 2021)
- 419 posts out of 1080 sanctioned posts for judges in high courts, Supreme Court vacant available at: businesstoday.in (last visited on 26 July 2021)
- M/S PLR Projects Pvt. Ltd. Vs Mahanadi Coalfields Ltd. WP(C) No. 1236/2019 ↑