Introduction
Coming straight to the nub of the matter, in a scathing attack on the Centre for delaying the appointment of Judges, the Calcutta High Court Bench comprising of Justices Dipankar Datta and Debi Prosad Dey onJuly 12 while hearing a bail plea for actor Vikram Chatterjee involving the death of a model Sonika Chauhan termed the shortage of Judges as a “very major problem” that the oldest high court of the country was encountering. The observations came as the Bench noted that the actor’s bail application could not be listed on time by the court due to which he was arrested leaving his plea infructuous. The Calcutta High Court while casting Centre’s nonchalant approach on such a key issue said it was working with a little less than 50 percent strength as the functional strength of Judges in the court was only 34, while the sanctioned number was 72.
Appoint More Judges
Neeedless to say, the Calcutta High Court has warned of “appropriate action” if urgent steps are not taken on it, while asking whether the nation could think of the Parliament functioning with half its strength. The Bench did not hesitate in making it absolutely clear that, “The time is now ripe for speaking our mind out or else this premier institution, which has stood tall despite several odds, would gradually cease to lose its efficacy. The Bar and the litigant public have been tolerant so long, but this Bench cannot remain a silent spectator waiting for the inevitable ire to explode.” Centre must stop coughing up a long list of excuses and should immediately sit on the drawing board and draw up plan to fill up all the vacancies of Judges in different High Courts without wasting any more time! There are more than 400 posts of High Court Judges that lie vacant across the country.
Not The First Time
Without mincing any words, let me say this point blank: This is not the first time this concern has been expressed. We all know it fully well that how earlier also former Chief Justice of India TS Thakur had expressed his utmost unhappiness over delay in appointment of Judges and said courts in the country now require more than 70,000 Judges to clear the pending cases. “While we (judiciary) remain keen to ensure that Judges appointments are made quickly, the machinery involved with the appointment of Judges continues to grind very slowly. The confidence of people on the judiciary has, over the years, multiplied. Over three crore cases are pending in various courts across the country,” said former CJI TS Thakur while speaking on the opening day of the centennial celebration of the Odisha High Court at Cuttack. A standoff between the judiciary and the government in the last 18 months over drafting of the new Memorandum of Procedure, the guidelines for appointing Judges, has further added to the problem. It is pending mainly due to differences on its content between the executive and the collegiums. It is a matter of grave concern that the friction between the two sides which repeatedly hit the headlines during the previous Chief Justice of India TS Thakur’s time is continuing even till now!
Be it noted, the former CJI TS Thakur said around 170 proposals for appointment of High Court Judges were now pending with the government. “Access to justice is a fundamental right and the government cannot afford to deny the people their fundamental right,” he said. Former CJI Thakur said shortage of Judges was one of the formidable challenges faced now. Of some 900 sanctioned posts of Judges in different High Courts of the country, there are over 450 vacancies, which need to be filled up immediately. He said while the Law Commission of India in 1987 had suggested having 44,000 Judges to effectively tackle the then number of pending cases, the country today has only 18,000 Judges. He also lamented earlier at a function in Delhi that the judiciary had been made the scapegoat for the mounting pendency of cases.
Fill Vacancies In All High Courts
It must also be reiterated here that the Judges shortage problem is not just confined to Calcutta High Court alone. It is also spread over all other major states barring one or two smaller high courts in smaller states. Why even in UP we see that Allahabad High Court has sanctioned strength of 160 Judges yet not even half the vacancies are filled up? This has been going on for many decades. This must end now and vacancies must all be filled up on a war footing!
Truly speaking, Centre cites hundred reasons as to why more benches cannot be set up in big states like UP like the one that there is lot of opposition from the High Court itself. Agreed! But who will dispute that the huge vacancies in all big courts like Allahabad High Court where more than 10 lakh cases are pending must be filled up completely. Not even one seat should be left vacant! But what we see instead is that more than half seats keep lying vacant and Centre is always ready to cite hundred reasons for not filling up the vacancies! This is just not in order! There is no shortage of talented lawyers who are fit to become High Court Judges. But Centre is not ready to fill the vacancies. Centre is also the biggest litigator due to which we see so many cases piling up in courts! Though there are no official figures, the government is the country’s biggest litigator, being a party in about half of the country’s 27 million pending cases.
Immediate Action
Now coming back to the main subject, the Calcutta High Court has criticized the Centre over alleged delay in appointment of Judges, while asking whether the nation could think of the Parliament functioning with half its strength. A Division Bench of Justices Dipankar Dutta and DP Dey said that, “Immediate action is called for to appoint maximum number of Judges to prevent the justice delivery system from collapsing, which seems to be imminent.” At the first place such a despicable situation should never have cropped up!
Top Priority To Appointing Judges
While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bench of Calcutta High Court has said that the functional strength of Judges in the Calcutta High Court was 34, while the sanctioned strength was 72. It said that, “The present functional strength is, therefore, a little less than 50 percent of the sanctioned strength.” The Calcutta High Court asked the Union Law Minister to intervene and give top priority to appointing Judges in the Calcutta High Court.
As things stand, the Bench observed that, “With less than half the sanctioned strength, the Calcutta High Court is reeling under an acute shortage of Judges to carry out judicial operations.” It also observed that, “The sanctioned strength of Judges in this Court is 72. Till a couple of years ago, the sanctioned strength was 58. Today, this Court has a functional strength of 34 Judges only. The present functional strength is, therefore, a little less than 50 percent of the sanctioned strength.”
Centre Must Act And Not Remain Silent
For my esteemed readers exclusive indulgence, let me also inform them that the Calcutta High Court minced no words in making it absolutely clear that, “The politeness of this Bench may not be understood as weakness on its part to be firm. It is made clear that continued silence of the central government in the matter of appointment of Judges in the near future, despite the concerns expressed in this order, would certainly be viewed seriously as interference in the course of administration of justice and followed by appropriate action as authorized in law”. Very rightly said!
Thought Provoking Questions On Vacancies
Let me be direct in asking: Why Centre is not ensuring that the vacancies of High Court Judges are not filled up completely? Why is Centre not serious on this? Why Centre does not realize that just paying lip service alone that it is dedicated to reduce the huge pending cases by appointing more Judges without translating it into action will lead the nation to nowhere except disaster as we are seeing right now which alone explains why Calcutta High Court felt constrained to speak out so hardly?
Let me also be direct in asking: Why Centre does not realize that the judicial system ,ay lose its efficacy if urgent measures were not taken as pointed out by Calcutta High Court? Why Centre does not realize that Calcutta High Court is reeling under an acute shortage of Judges which should have been filled up a lot earlier? Why Calcutta High Court is compelled to slam Centre for neglecting the so sensitive issue due to which it has accused the executive of being “authoritarian”?
To put things in perspective, the Calcutta High Court Bench’s observations came after it could not hear an anticipatory bail plea for more than a month after it was filed on June 5. The petitioner was arrested on July 6 and the plea was junked by the Bench on July 12 as infructuous. The Bench said that by February 2018, 10 Judges of the Calcutta High Court will retire, cutting the strength to 24 if no fresh appointment is made by that time.
Truth be told, the Calcutta High Court Bench very rightly asserted that, “Working at less than 50 percent strength, disposal of proceedings in this court have been quite high in the sense that it is complete with disposals of High Courts functioning with greater strength of Judges.” Having said this, it also made it amply clear that, “Nonetheless, it cannot be doubted that whatever is being achieved is far below the expectation of the litigants”. There can be no denying this.
Dearth Of Judges
The billion dollar question that the Bench of Calcutta High Court asked and then itself replied while pulling up Centre for continued neglect was “Can the nation think of the Lok Sabha in a functional state with half of its elected members? Similarly, can legislative assemblies function at half-strength? The answer cannot be in the affirmative.” Very rightly said. It also rightly said that, “The Lok Sabha and/or the Legislative Assemblies are important Constitutional entities and it would be a disgrace for the largest democracy of the world if elections were not conducted on time.” The Bench very rightly observed while slamming Centre for “neglecting” the problem for long and accusing the executive of being “authoritarian” that, “It does not require one to be super intelligent to make the right guess. It is the problem of dearth of adequate number of Judges in this Court. It has continued from yesteryears and assumed the character of a perpetual concern, which the powers that be having the wherewithal to address and resolve have neglected by their various shades of authoritarianism.”
High Courts Being Left In Lurch
It also cannot be lost on us that the Bench of Calcutta High Court said the Centre wastes no time in filling up vacancies in bureaucratic posts. It also hammered home the crucial point that, “This Bench is thus left to wonder as to why only in respect of filling up of vacancies in the High Courts, which are also high Constitutional authorities, there is such a brazen apathy and indifference of the political executive.” We thus see that the Calcutta high Court rebukes the Union Law Ministry for “brazen apathy, indifference”. Why only High Courts are being left in the lurch?
Independence Of Judiciary
Calling out the “brazen apathy and indifference of the political executive”, the Calcutta High Court Bench argued very strongly and effectively that, “The independence of the judiciary is regarded as a basic structure of the Constitution, rendering a particular High Court ineffective by adopting a step-motherly attitude cannot but draw the frown of a civilized society.” While delivering a stern warning for the Centre to pull its act together, the Court also asked the Registrar General to intimate the Union Law Ministry about the order on priority. The Court also directed that a copy of the order must be sent to Union law Minister Ravi Shankar Prasad “so that the matter relating to appointment of Judges in this court is given topmost priority”.
Conclusion
It needs no rocket scientist to conclude that there is lot of merit in what the Calcutta High Court Bench has said. Centre must take immediate action in this regard and fill up all the vacancies of Judges not just in Calcutta High Court but also in other High Courts. It is the common man especially undertrials who suffers the most due to lack of Judges and often end up being in jail for more the time than the offence which they are accused of and which if they had committed would still have come out of jail after completing their jail term! No more excuses! No more delays! The vacancies in High Courts must be filled up in all States without exception. This is the bounden duty of the Centre and it is not doing any favour on anyone by filling up the vacant posts.
Written by:
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001,
Uttar Pradesh.
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