The Short-Staffed Judiciary
Six out of 15 courtrooms in the Supreme Court building remain closed these days. In the coming months, more courts will have locks on them as three judges are scheduled to retire, increasing the vacancies from the present six to nine out of the total strength of 26. The situation in the high courts is no better. There were 150 vacancies at last count.
Shortage of judges is one of the causes for the high courts keeping in its files cases that have crossed the silver jubilee of their institution. Last week, the Supreme Court asked the Delhi high court to hear an international arbitration dispute which was frozen after an "interim stay" seven years ago. The apex court pointed out that the credibility of the Indian judicial system would be at stake in such a situation.
With almost all appointments at a standstill following the deadlock over the process of consu-ltation between the Chief Justice of India (CJI) and the executive, the situation is bound to get worse. Never before has the country and its judiciary faced such bleak prospects. The President has referred nine questions referring to the consultation process for the opinion of the Supreme Court. A nine-judge bench has been constituted and its decision is unlikely before December this year.
The perennial confrontation between the executive and the judiciary over appointments and transfers of judges has vitiated the atmosphere since 1980. The Supreme Court has been swinging from one extreme view to another over the interpretation of the constitutional provisions on this issue. In 1981, a seven-judge bench held that the executive has supremacy in the consultation process and the opinion of the CJI was not conclusive. In 1993, it went to the other extreme and held that it was the CJI who had the final say. Now, the controversy has arisen again with some persons alleging that the CJI has not followed the norms set by the 1993 judgment.
The successive governments are more to be blamed for this situation than the judiciary. The 1981 judgment (S P Gupta vs Union of India) had suggested the formation of a collegium to make recommendations to the President for appointments and transfers. The collegium must consist of persons who are expected to have knowledge of persons who may be fit for appointment. Little has been done in this direction.
The bane of the present process has been the secrecy surrounding it. The establishment of an independent authority would make it less opaque. The Supreme Court itself wanted a more transparent process. It said in 1981: "We believe in an open government and openness in government does not mean openness merely in the functioning of the executive arm of the state. The same openness must characterise the functioning of the judicial apparatus, including judicial appointments and transfers. Today the process is shrouded in mystery.... The exercise of the power remains a sacred ritual whose mystery is confined only to a handful of high priests."
Unfortunately, neither the executive nor the judiciary has been willing to let even one ray of sunlight into this dark ritual. As a consequence, every appoi-ntment or proposal for transfer is followed by misinformation and misgivings.
Earlier, the executive was accused of packing the bench. After the primacy was vested in the CJI, he was criticised, which is a more dangerous trend. It has put the apex judiciary in the box and stalled the appointments. Negligence in not appointing a judicial commission for so many years is proving costly.