The severe capacity crunch can be rectified with the creation of a permanent secretariat, which can support the appointment process more efficiently.
Constitutional courts in India, namely the High Courts and the Supreme Court perform the vital task of ensuring that citizens have redress for any grievance against the state. Public confidence in these institutions is essential for governance.
The Karnataka High Court, at present, exercises both the constitutional jurisdiction vested in it, as also the appellate jurisdiction vested in it by multiple state and central laws. It has, as on date a sanctioned strength of 62 judges. However, at present, there are only 25 judges (both additional and permanent judges) presently presiding in the Karnataka High Court. The Karnataka High Court is, therefore, presently suffering from severe capacity issues with less than fifty per cent of the sanctioned strength being functional.
As per data from the National Judicial Data Grid, 2,15,272 cases are pending adjudication in the Karnataka High Court. While the absolute number may itself not be a problem, 70% of these cases have been pending for more than two years. Following the classification of the Law Commission of India in its 245th Report, these cases are therefore classifiable as “delayed’. And 28 per cent of the cases are pending for more than five years suggesting that these cases are “arrears” adopting the same classification mechanism of the Law Commission.
To be fair, these numbers are still favourable when compared to the all India figures where, across High Courts, 79.65 per cent of cases are delayed and 49.66 per cent are arrears. But if the capacity situation persists for a long period of time, it is likely that the Karnataka High Court will struggle to dispose cases.
Following the Supreme Court’s judgment in Supreme Court Advocates on Record Association v Union of India ((2016) 4 SCC 1) (“Fourth Judges Case”), appointments of judges to the High Courts and the Supreme Court are being made by the “collegium” of Supreme Court judges in consultation with the “collegium” of High Court judges, where required. These collegiums are a result of the judgment of the Supreme Court in In Re Presidential Reference under Article 143(1) ((1998) 7 SCC 739) (“Third Judges Case”) and consist exclusively of the judges of the Supreme Court and the High Court respectively, and the opinion of the Chief Justice of India after consultation with the collegium is binding on the Union government.
Subsequent to the judgement in the Fourth Judges Case, the Supreme Court had taken into account the need to improve the collegium function on considerations of efficiency, transparency and merit and passed an order directing the Union government to frame a fresh Memorandum of Procedure (“MoP”) on this basis. Two years after this order, due to differences between the judiciary and the government over the content, nothing has come out.
Even if the differences between the Union government and the Collegium over the MoP were to be resolved, there remains the problem that the collegium system itself has been unable to keep up with the demands of appointing enough judges to the High Courts across the country.
According to a study, between 2006 and 2014, the collegium was never able to ensure that more than 652 judges’ positions were filled at any given time. As of 1st September 2017, there are 666 judges serving, but the percentage of vacant seats remains very high at 38 per cent. At no point in the past has the collegium system been able to ensure that at least 700 judges serve in the High Courts at any one point of time.
The collegium system, while ensuring the independence of judges through the appointment process, is not able to adequately discharge its primary duty of ensuring that adequate numbers of judges are appointed to the High Courts.
The difficulty may be attributed to the fact that the senior most judges of the Supreme Court and the High Courts have to carry out the appointment related functions as well, in addition to their judicial and administrative functions. Part of this can be rectified with the creation of a permanent secretariat, which can support the appointment process and move it more efficiently, but at the moment the situation threatens to become dire in some High Courts such as the Karnataka High Court.
Article 224-A of the Constitution allows the Chief Justice of a High Court to request a retired judge of that or any High Court to serve after their retirement. This power is exercisable subject to two conditions: first, that the retired judge consents to serve on the High Court, and second, that prior permission is obtained from the President. Subject to these restraints, the Chief Justice is empowered to appoint retired judges as necessary.
Since the dates of retirement of judges are already known in advance, every Chief Justice could seek the consent of the judge and the President’s approval prior to the date of such retirement to ensure continuity as far as possible. There is past precedent for this practice when the Chief Justices of India used to exercise their powers under Article 128 of the Constitution in the context of the retired judges of the Supreme Court. Even during the 13 judge bench hearing in the Kesavananda Bharati case, three retired judges were appointed to the Supreme Court to prevent the backlog from building up to unmanageable proportions. While no time period is prescribed, retired judges may be appointed for six-month terms extendable up to a maximum of one year.
This is an edited extract from the book “Fifteen legal reforms for a progressive Karnataka”, released today. The authors are the Bengaluru team of the Vidhi Centre for Legal Policy: Akhileshwari Reddy, Divij Joshi, Deepika Kinhal, Shashank Atreya and Alok Prasanna Kumar.