MOUNTING ARREARS OF CASES WITH RAISING VACANCIES IN JUDGE-SHIPS IN INDIA

9/27/2011
27.9.2011 (UNI) The appointment of three high court judges was announced by President Pratibha Patil today while more than 290 High Court judgeships have been vacant and 32 million cases pending nationwide.

Justices Brij Kishore Dube, Gulab Singh Solanki and Naresh Kumar Gupta have been appointed Judges of the Madhya Pradesh High Court in that order of seniority, the Law and Justice Ministry reported.

Going by Department of Justice figures published by the Supreme Court, as of February 1, 2011, India's 21 High Courts had a 32.51 vacancy rate-- 291 of 895 judgeships vacant.

Madhya Pradesh High Court at the time had nine of 43 judgeships vacant. Its website now indicates only five vacancies. The Justice Department figures published periodically by the Supreme Court have not been updated.

But knowledgeable sources say the level of vacancy remains very high, especially considering the high levels of pendency in courts and the low levels of deterrence ensured by law.

The level of vacancy in district and subordinate courts as of September 30, 2011, was placed by the Department figures at 3,170 of 17,151 sanctioned judicial posts.

Such vacancies have been a cause of serious concern in a nation with rampant corruption and serious discipline issues which are compounded by court delays fuelled by mounting pendency.

Indian courts between them have an estimated 32.23 million cases pending, the Justice Department reported in the last quarter of 2010-- up from 32.12 million cases it reported in the 3rd quarter and 31.54 million cases in the 2nd quarter.

The figures reflect unresolved wrongs, injustices and conflicts Indians live with. They also provide a perspective on vacancies, not to mention the state of law and justice. For many victims, critics say, courts have become a system of last resort, given competence and accountability issues surrounding the bar and the bench, often expensive and dilatory processes.

Deterrence, a key to any effective system of justice, indeed, it's very raison d'tre, suffers from long-winded litigation, low rates of conviction and inconsistent practices of sentencing.

Guidelines suggested by an Administrative Reforms Commission 'so that sentencing across the country for similar offences becomes broadly uniform' have yet to take effect.

Oddly, even where certain laws provide for imprisonment, few are so sentenced or suffer incarceration, altogether undermining the role of deterrence in Indian jurisprudence.

Even in judicial appointments, reforms have been discussed for many years but have yet to materialise.

The United Progressive Alliance government acknowledged in Parliament last month demands to change the system of appointing judges or making it transparent but said it has 'no specific proposal' under consideration to effect such change.

'The procedure has been debated in various fora and there have been demands to change the same,' Law and Justice Minister Salman Khurshid said in a written reply in Lok Sabha.

But, he said, 'there is at present no specific proposal under consideration of the government to bring about any change.' The existing procedure he referred to was based, he said, on a Supreme Court Judgement dated October 6, 1993 and advisory opinion dated October 28, 1998.

That was when and how the task of appointing Judges was turned over to the judiciary-- Chief Justice of India and Chief Justice of the concerned High Court.

Another idea, an All India Judicial Service, which has been around for more than 25 years, has yet to take off, too.

'The government is seized of the matter of creation of an All India Judicial Service under Article 312 of the Constitution,' Khurshid told a Member in the Lok Sabha.

Khurshid's predecessor, M Veerappa Moily, is on record in Parliament that 'delay in filling up the vacancies of Judges is one of the main reasons for accumulation of pending cases in courts.' Moily said 'the main reason for the large number of vacant posts is that the government has not received sufficient proposals to fill up these vacant posts.' Experts question the notion of government helplessness in making the justice system truly functional and accountable.

Critics say what is needed is a disincentive to allowing such vacancies.

Experts agree that with 32 million plus cases pending, many for decades, and barely 18,000 judges sanctioned against a recommended 55,000 strength, vacancies are the last thing Indian courts or justice seekers can afford.

The point 'that the vacancies of judges in the High Court should be expeditiously filled up' was also underscored by a Parliamentary panel headed by Jayanthi Natarajan.

'As far as the need of more judges is concerned,' the Parliamentary Standing Committee on Law and Justice 'reiterates its earlier recommendation that the vacancies of judges in the High Court should be expeditiously filled up.

The government should vigorously pursue the matter with the Chief Justice of the High Courts for necessary actions.' That was more than a year ago.

Nor has there been any let-up in more than two years since Prime Minister Manmohan Singh stressed the urgency of filling up Court vacancies.

'I am told that almost 3,000 posts of judges in the country are vacant because of delay in recruitment,' Dr Singh told a Joint Conference of Chief Ministers and Chief Justices in August 2009.

'All these vacant posts at the subordinate levels need to be filled up without any further loss of time... The existing vacancies in High Courts are quite high in number and need to be filled up urgently.' Far from being filled, more vacancies have cropped up since.