The dire condition of judgeship in India and why India does not have more judges.
(This is the first in a series of two articles focusing on a career in the judiciary post-law school)
India is the world’s biggest functioning democracy. It prides itself on its culture, heritage and the institutions of governance, which have been developed and modified over a period of time, to help the country fulfill its role as a welfare State. We also have the longest written Constitution of any sovereign country in the world. It is this document that we draw power, certainty and most importantly, confidence from. It is the supreme law of the land, and no one is above it, which instills a sense of security in all citizens of the country. But who is the guardian of this all-important document? It is the Supreme Court.
Let us take another example: an eminent and ‘influential’ businessman could not pay his dues to creditors and was sent to prison. Could this have been possible without an independent judiciary?
The above two instances clearly show the authority and power that judges have, and if exercised adequately, our legal justice delivery system would be unparalleled. However, herein lies the problem.
Judgeship in India has been alleged to be in dire straits for sometime now. The pendency of cases in courts is at an all-time high, and no matter how many special courts and tribunals are created, the problem seems to be never-ending. There are controversies regarding the appointment of judges, and most recently, regarding the allocation of cases for hearing to a particular Bench as well.
In fact, things came to a head when four senior sitting Supreme Court judges held a press conference in January, 2018 to voice their disapproval of the way the Supreme Court was working. One of the judges said, “This is an extraordinary event in the history of the nation, more particularly this nation… The administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months.”
Procedure of appointment of judges
There are several reasons why the appointment of judges has been slow and disproportionate when compared to the spiraling rise in the number of cases. One is the procedure of appointment. While the appointment of judges of the Supreme Court is formally made by the President of India, he makes this appointment after consultation with such judges of the Supreme Court and of the High Courts in the States as the President deems fit for the purpose. Further, for the appointment of any judge of the Supreme Court, other than the Chief Justice of India (CJI), the CJI must also be consulted. The meaning of consultation has evolved to mean that a Collegium comprising the CJI and four senior most judges of the Supreme Court will make recommendations for appointment to the President, who can accept it or send the names back for reconsideration. However, if the Collegium recommends that name again, the President is bound by the recommendation.
The difference between the appointment procedure in India as against many other countries is that here, the judiciary has a say in its own appointment procedure, while the role of the Executive has been greatly reduced. This has led to apprehensions of the judges being judges in their own cause, i.e. there is a fear that the process of accountability and transparency in judicial appointments may be compromised in certain situations. To redress this, the idea of a National Judicial Appointments Commission (NJAC) was floated, where there would be representation of the Law Minister and two eminent persons decided by the Prime Minister, Leader of Opposition and CJI, besides three Supreme Court judges. However, the Supreme Court struck this as unconstitutional. Arguments against the NJAC or excessive involvement of the Executive in judicial appointments leads to the apprehension that the judiciary may not be totally independent then, considering that they might be influenced by the Executive or feel indebted to them for their appointments.
Then came the controversy over the Memorandum of Procedure (MoP) which is followed for appointment of judges. Under it, the Executive first gets an opportunity to scrutinize the Collegium’s recommendation through the Law Ministry and then by the Prime Minister. But after this, if the Collegium suggests the name again, the Executive has no choice but to accept it. A Constitution Bench of the Supreme Court had asked the government to draft a new MoP for appointment of Supreme Court and High Court judges. The draft MoP has been going back and forth between the government and the Collegium since then.
Delay in appointments
Another hurdle is that there is no time limit prescribed within which the Collegium’s recommendations are to be decided upon by the Executive, and thus, the government has many times not taken any action on the files at all. This, of course, leads to fewer judges getting appointed.
Not first preference
Apart from the issue of appointments is the fact that many youngsters do not see the judiciary as a career of choice. Aside from being High Court or Supreme Court judges, posts in the lower judiciary are thought to be less glamorous, the pay is not considered good enough to compete against the packages and perks of a corporate law firm, and the locations of posting may be in far-flung and remote areas, for which many are not prepared.
Further, it is a given that as a lawyer, whether in a corporate law firm or an advocate in court, one has more liberty, is under less scrutiny and there is not much limitation in terms of what one can earn, while as a judge the salary would be fixed. One hears of many instances where advocates who have been offered the post of a judge have refused!
There are several vacancies for judicial posts across India, but many of them lie unfilled, especially because of delay in processing recommendations of potential names. This has led to piling up of cases in courts. Many judges are not well-trained in new and upcoming kinds of legal breaches and may not be able to give the best view on such a case. And with the judges’ press conference in January, the very foundation of the judiciary is shaking. Faith in the institution needs to be restored.
In the next article, we will see how a career as a judge can be pursued by a law graduate.