Vacancies in HCs jumped to 40% on August 31 with 427 posts falling vacant and the working strength of judges coming down to 652 against a total approved posts of 1,079.
Despite the NDA government, on the recommendation of the higher judiciary, having appointed the highest number of HC judges in recent years, the rate of retirement means the effective addition has been only 29 judges each year overall.
Between April 2015 and May 2018, the law ministry notified appointments of 313 additional judges, among the highest in the last seven years, taking the average of judges appointed per year to 104. Yet, considering the number of judges retiring from HCs every year, the additions are modest though the situation would have been worse if the number of appointments had not been increased.
During the UPA period, from 2012 to 2014, about 250 additional judges were appointed, which works out to an average of 83 each year.
The vacancies have been steadily rising. In October 2017, vacancies of judges in HCs stood at 387 and went up to 406 in March this year and 427 on August 31. In the next three years, on an average, more than 65 permanent judges in the HCs are set to retire, not accounting for additional judges who are appointed initially for a two-year period and then considered for a permanent position.
The huge vacancies are a cause of concern for the government as well as the higher judiciary with 39.52 lakh cases pending in HCs, 22% of them for more than 10 years. A persistent difference of opinion between the Supreme Court and the government has stalled finalisation of a memorandum of procedure (MoP) for the appointment of judges in the higher judiciary.
The revised MoP is supposed to streamline and expedite appointments and make the system more transparent and accountable. But the judiciary and the government are at loggerheads over setting up of a formal mechanism for vetting candidates before they are recommended for elevation as judges of SC or HCs.
The tiff continues. Recently, the government forwarded 126 recommendations from HC collegiums to the SC collegium with its own report, with background checks done by the Intelligence Bureau. Surprisingly, the government found nearly half of the candidates unfit for judgeship of HCs. The government expressed reservations citing different issues while commenting on the recommendations.
Sources said the government has set up a mechanism in the law ministry to evaluate each recommendation made by high court collegiums on the scale of merit and integrity, review of cited judgments, reputation as a lawyer in the legal fraternity — personal and professional — and his/her minimum annual income.
Mandatory background checks by the IB also revealed issues of personal and professional integrity in some cases while “nepotism and favouritism” also cropped up as some of those recommended were close relatives of sitting and retired SC and HC judges.