Do 403 Vacancies for High Court Judges Undermine the Constitution?

The vacancies in the judiciary should worry every citizen of the country. If we wonder, why things in India are slow and do not go as per the “plan”, we must understand that we are a nation controlled by a political economy that believes in ad-hocism. This eco-system has not spared even the judiciary, one of the pillars of a modern democracy.

Currently, in India, there are 24 High Courts catering to the whole country. The sanctioned strength of the judges for these courts stands at 771 for permanent judges and 308 for additional judges. The Supreme Court of India is supposed to have 31 judges. But if we look at the data provided by the government it shows a sorry state of affairs. The number of existing vacancies for judges for the different High Courts is huge, 403 to be exact. The vacancy of judges in the Supreme Court stands at 6.

In India, there is a huge pendency of cases for various reasons but one of the main reasons could be attributed to the non-filling up of the posts of the judges. For example, the pending cases in the four major high courts and the vacancies in judges’ posts

– High Court of Allahabad has a sanctioned strength of 160 judges but only 104 judges are there. 54 posts need to be filled. This court has a pending of 9,09,065 cases as on 31.12.2017

- High Court of Bombay has a sanctioned strength of 94 judges but has 24 vacant positions.

- Punjab and Haryana high-court has a sanctioned strength of 85 while 35 are to be filled up. This court had 3,31,538 pending cases as on December 31, 2017.

- Madras High Court has a sanctioned strength of 75 but has a has a vacancy of 17 judges.

- High Courts of Karnataka and Andhra-Telangana have more than 50 percent of the vacancy in the judiciary. Karnataka High Court has a sanctioned strength of 62 Judges and 38 are lying vacant while the AP Telangana has a sanctioned strength of 61 judges and there are 30 vacant positions.

- Delhi High Court has a sanctioned strength of 60 for judges but has a vacancy of 22 posts. The pendency of cases in the Delhi high court is 69,650 as on 3 February, 2018.

To a question raised in the Parliament on the pending cases in the country, the government responded that as on 18.12.2017 the number of cases which were pending in the Supreme Court for more than five years and 10 years were 15,929 and 1,550 respectively.

The response also contained the details of the pending cases in other High Courts of the country. It stated, “As per information available on the web-portal of National Judicial Data Grid (NJDG), 34.27 lakh cases were pending in High Courts (excluding High Courts of Allahabad and Jammu & Kashmir) as on 26.12.2017, out of which 7.46 lakh cases were five to 10 years old, and 6.42 lakh cases were more than 10 years old.”

The question that many ask, “What is the impact of the backlog of cases on India?”

The answer lies in the fact that 403 posts of the country are with the power of judicial review and the High Court has a wider role than the Supreme Court which has been provided under Article 226. It has the original jurisdiction regarding enforcement of Fundamental and Legal Rights. The Supreme Court under Article 32 can only enforce Fundamental Rights.

The Constitution does not have a provision for Judiciary like it does for the Legislature, that a vacancy for the members of Parliament or Legislature cannot be vacant for more than six months. This can be set right when an All India Judicial Services Commission is set up and the vacancies that arise or the requirements based on different states can be taken up on a regular basis.