Senior advocate JP Cama called for a mandamus to bulldoze the process of judicial appointments and prevent judicial vacancy of nearly 45% at the Supreme Court, which is expected in the next 11 months.

Cama was speaking at yesterday’s session on an acute shortage of judges at the inauguration of the three-day "rule of law convention - 2018 on judicial reforms” organised in Delhi by the Bar Association of India (BAI).

Cama took note of the case of the Supreme Court where six judicial vacancies were pending and seven more judges are due to retire by December 2018.

All that is against a backdrop of the Memorandum of Procedure (MoP) for appointment of judges still not being in force, Cama said, noting that the bar cannot afford to wait for the MoP. The Bar should seek the relief of mandamus to make judicial nominations from among members of the bar and send those nominations to the president of India to sign off on them and appoint new judges, he argued.

++1079 vacancies, 3000+ interested candidates

There are currently 1079 empty judicial posts across India’s 24 high courts, with seven high courts functioning with 50% judicial strength and nine high courts functioning with acting chief justices instead of regular chief justices.

Cama said that his sources in various high courts and the Supreme Court have told him that for every judicial vacancy in the higher judiciary there are around 300 interested candidates who come forth wishing to take the post.

He argued that if those 300 candidates are not fit to become judges, the bench must use the period before scheduled retirement of judges to train and prepare the interested candidates for judicial office.

He also asserted that the judiciary should do away with the system of only nominating chief justices of various high courts as judges of the Supreme Court.

Becoming the chief justice of a high court in India is based on the seniority of a judge according to the date on which he was appointed a judge of the high court, whereas Supreme Court appointments should be based on "highest intelligence” alone, he said.

Right to justice last priority

"It is probably entirely intentional [on the part of the government] because they are the biggest litigator in the courts of our country so they have a vested interest in not running an active and vibrant judiciary,” Cama remarked.

He said that the infrastructure in one particular appellate court is so abysmal that judges are not even provided court rooms and have to resort to hearing cases in their cars, with litigants sitting on seats in the rear of the car and the judges up front.

Supreme Court advocate Priya Hingorani, also on the panel, pointed out how judges in certain courts are known to retire for the day within 10 minutes of the first hearing as the government has failed to provide them basic infrastructure such as stenographers, typewriters and electricity.

Senior advocate Shyam Divan noted: "Is there a reason why the government is not ensuring full tribunals? That is a strong indication of the breakdown of rule of law.”

Supreme Court Bar Association (SCBA) president and senior advocate Vikas Pahwa said that there is now the need for a data bank to provide details of seniority, number of reported cases or other objective parameters for members of the bar to be nominated as judges.

"Lobbying to become a judge should actually be a disqualification. lawyers need to be cajoled and persuaded [to take up judicial posts],” Pahwa said, making his case for nominating lawyers to become judges well in advance of scheduled judicial retirements.

Government perspective

Former law minister Salman Khurshid, speaking on the panel, said that the biggest hurdle to having a fully functional judiciary is the frequent rotation of the Chief Justice of India (CJI).

"We don't have an appellate judiciary which is stable at the top,” said Khurshid, lamenting that if one CJI has not been able to push his judicial nominations past the collegium for several months but eventually does, then the retirement of that CJI will push the process back again if the new CJI doesn't agree with the former CJI's nominations.

Khurshid added that "natural barriers” such as regional ratio rules in judicial appointments, and "unnatural barriers” such as "the egos, likes and dislikes” of the collegium also ensure that some "outstanding people” from the bar never make it as judges.

Khurshid also said that even though India reportedly needs 70,000 judges to clear the backlog of 3.2 crore cases, our training capacity is not sufficient to prepare even 20,000 new judges.

Pahwa said that CJI Dipak Misra has told him that he intends to appoint Supreme Court lawyers as high court judges now, while BAI and SILF president Lalit Bhasin said that law teachers who are in the category of "jurists”, such as Prof Madhav Menon, Prof Upendra Baxi and Prof Moolchand Sharma by virtue of their longstanding experience are also strong candidates for judicial nomination.

Seconding Bhasin, Divan noted that the constitution already carries a provision for appointing jurists as judges at the higher judiciary.