For a while now, the ever increasing vacancies in the judiciary have invited attention to the process of appointing judges to High Courts and the Supreme Court – but not to lower courts. With 23% posts lying vacant and nearly 2.62 crore cases pending resolution in the lower judiciary, this lack of attention is ill-advised.
In August this year, the Supreme Court initiated, suo motu, a public interest litigation on the basis of a letter written by the Union law ministry to the apex court’s secretary general, attributing the large number of vacancies in district courts to the current mechanism of appointing judges. Currently, district judges are recruited by their respective state’s High Court; it announces the vacancies, sets question papers for and conducts the written test, schedules interviews and recommends successful candidates for appointment to the governor.
Recently, the amicus curiae in the Supreme Court’s suo moto petition, argued for a Central Selection Mechanism to appoint lower court judges, similar to the All India Judicial Service proposed by the Law Commission in its 116th report as part of a judicial reform package. The argument in favour of a centralised system is that a national-level selection process would attract a more talented pool of candidates and encourage fresh graduates to join the lower judiciary. Moreover, it would make recruitment more efficient and transparent.
Such arguments, however, are not supported by empirical evidence, as we found out after undertaking a study to ascertain how the appointment of judges plays out in practice.
We collected state-wise data on district judges recruited directly from the bar – the process is referred to as District Judges Direct Recruitment – with a focus on two parameters. One, average time taken to fill vacancies; two, the number of vacancies filled.
It is generally believed that the current framework does not allow states to recruit candidates in a timely and efficient manner, leading to vacancies and, consequently, delay in resolving cases. Our study, however, presents a far more complex picture of the exercise of appointing judges in different states.
We found seven states that follow a two-tier recruitment system take over 196 days, averaged for the last 10 years, to complete one cycle of appointing district judges directly from the bar. Ten states that follow a three-tier system take, on an average, a shade under 336 days. Both sets of states thus breach the limit of 153 days and 273 days, respectively, prescribed by the Supreme Court in Malik Mazhar Sultan, 2006.
But disaggregated, the data shows that at least seven of the 17 states generally complied with the prescribed recruitment timelines. Further, Odhisa and West Bengal exceeded the limit by less than 10 days, implying that there are no visible inefficiencies in their processes. So, sweeping claims about inefficiency do not accurately capture the problem. Instead, an approach attuned to state-specific contexts may be required.
As far the number of vacancies, we found at least 239 posts of district judges across 15 states and Union Territories that were supposed to have been filled through direct recruitment as of 2017 were lying vacant. Nagaland, Andhra Pradesh, Uttarakhand, Assam, Odisha, Tripura, Bihar, Jammu and Kashmir, Karnataka, Himachal Pradesh and Meghalaya have filled, on an average, only 50% or less of their advertised vacancies in the last 10 years. In some states, the recruitment process ended without a judge being appointed.
But attributing the failure to fill vacancies to a state’s inefficiency may not be right. Odisha, for example, took an average of 161 days – just eight more than the prescribed limit – to complete the recruitment process, yet managed to fill, on an average, only 39% of its vacancies. Similar trends were noted in Tripura, Uttarakhand, Nagaland and Karnataka, proving that an efficient recruitment process does not guarantee vacancies being filled.
There is thus a pressing need to analyse the systemic challenges that prevent vacancies in the lower judiciary from being filled. This would involve asking questions about the fairness of recruitment processes, adequacy of incentive structures, and the culture of legal education and profession in the country. The claim that altering and centralising the current recruitment mechanism will resolve the problem is an oversimplification.
Diksha Sanyal and Shriyam Gupta work on judicial reforms at the Vidhi Centre for Legal Policy.