Revise judges’ appointment process to build judicial capacity

Written by Prakhar Misra and Shreyas Narla

Last month the Supreme Court asked the government about the status of 55 recommendations on judicial appointments made a year ago. And last week the college met to appoint five Supreme Court justices but postponed the decision to a later date. These delays have put a further strain on judicial capacity, particularly in the Indian Supreme Courts. As reported, the Patna High Court works with 60.3 percent of the sanctioned strength, the Calcutta HC with 55 percent, the Rajasthan HC with 54 percent and the Madhya Pradesh HC with 52.8 percent. Given dependency rates, why is judicial capacity not a priority? And why can’t budgeted and sanctioned positions be filled quickly? The judiciary is clearly to blame for not redefining its capacity building processes and procedures.

First, while India needs more judges, how many are enough? The Supreme Court introduced the lower court weighted case burden method, which weighted the elimination of cases based on the type, complexity of the cases, local conditions and a performance evaluation system. The process is opaque to the higher judiciary. In 2014, the Indian Chief Justice had made a “fundamental” agreement to increase the strength of the Supreme Courts by 25 percent. Some states have implemented this, increasing the total capacity to 1,080 sanctioned bodies. However, the exact method of calculating the required capacity is not known.

Second, the process of appointing judges is completely opaque and evolving. This is because appointments are no longer based on constitutional provisions (Articles 124 and 217) or the 99th constitutional amendment establishing the NJAC, which was struck down by the Apex Court. In 2015, the Court of Justice ordered the compilation of an extra-constitutional document called the Memorandum of Procedure (MoP), which specifies how the Judicial College should select the nominees. However, this document has not been finalized to this day. Although several constitutional provisions allow the College of the Supreme Court to appoint ad hoc judges and initiate stop-gap measures, these options are rarely used.

In addition, since 1999, prior to the proposed MoP, the original college decisions never followed any particular procedure. The Supreme Courts must recommend names six months prior to an anticipated vacancy. However, high courts have rarely initiated proposals within this timeframe and there have been cases of six year delays in filling vacancies. On the other hand, there is no prescribed timeframe for the Supreme Court to initiate an appointment process. For example, appointments to the Supreme Court last an average of 41 days and appointments to the Supreme Courts take between 5 and 7 months.

Third, the current appointment process is at a free discretion. Aside from the qualifications set out in the constitution – age, nationality, years of experience, etc. – there are no other notable criteria or requirements that must be met for someone to be considered a judge. There is also no list of those who were considered for the position and how the decision was made. Certainly unwritten criteria – seniority, geographic diversity, demographic qualities – have influenced the process of appointing the Supreme Court over time. The last appointment to the Supreme Court was in September 2019. Of the five vacancies, the earliest was vacated in November 2019. No appointment has been made since then. With four more judges slated to retire this year, it’s unclear what considerations are preventing the college from making appointments.

The executive branch is also to blame for rescheduling appointments. The Ministry of Law and Justice received a total of only 208 proposals against the current 419 vacancies in the Supreme Courts. Fifty-six percent of that remains with the ministry for review. Some delay is also due to the intelligence agency’s delay in preparing and filing background checks. After receiving the reports, it took the government an average of 127 days, while it took the Judicial College 119 days to approve the recommendations. Non-statutory reasons – such as national security – often give the executive the power to postpone recommendations by the college. In addition, they have overridden the college at least once by extending the term of a High Court Judge by one year instead of the two recommended.

Many of these problems are known. Parliamentary procedures and reports repeatedly describe the ever-growing vacancies, budgetary constraints and other hurdles that affect the work of the judiciary. Exchanges between ministers and heads of justice, either in public or through reported correspondence, cite lamentations about the state of the judiciary. Rankings and indices only bring home the same point where India’s legal backwardness and lack of judicial capacity further reduce its credibility in international contract enforcement markets. Yet none of these public deliberations on the issues that plague the judiciary recognize that there is an institution that refuses to change the way it operates and takes comfort in institutionalized opacity. Trying to reform it with organizational changes, be it with increased budgets or more workers, is in vain.

(Prakhar Misra and Shreyas Narla are research fellows at the Mercatus Center who work on the political economy of India.)

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