In a scathing attack on the Centre for delaying the appointment of judges, a Calcutta High Court Bench comprising of Justices Dipankar Datta and Debi Prosad Dey on July 12, while hearing the bail plea of actor Vikram Chatterjee involving the death of a model, termed the shortage of judges as a “very major problem” that the oldest high court of the country was encountering.

The observations came as the Bench noted that the actor’s bail application could not be listed on time by the court due to which he was arrested leaving his plea infructuous.

The Calcutta High Court while castigating the Centre’s nonchalant approach on such a key issue said it was working with a little less than 50 per cent strength as the functional strength of judges in the court was only 34, while the sanctioned number was 72.

The Court has warned of “appropriate action” if urgent steps are not taken, while asking whether the nation could think of the Parliament functioning with half its strength.

The Bench said: “The time is now ripe for speaking our mind out or else this premier institution, which has stood tall despite several odds, would gradually cease to lose its efficacy. The Bar and the litigant public have been tolerant so long, but this Bench cannot remain a silent spectator waiting for the inevitable ire to explode.” The Centre must stop coughing up a long list of excuses and should sit on the drawing board and draw up plans to fill up all the vacancies of Judges in different High Courts without wasting any more time.

There are more than 400 posts of High Court Judges that lie vacant across the country. This is not the first time this concern has been expressed.

We all know fully well how former Chief Justice of India TS Thakur had expressed his utmost unhappiness over delay in appointment of Judges and said courts in the country now require more than 70,000 Judges to clear pending cases. “While we (judiciary) remain keen to ensure that Judges’ appointments are made quickly, the machinery involved with the appointment of Judges continues to grind very slowly. The confidence of people on the judiciary has, over the years, multiplied.

Over three crore cases are pending in various courts across the country,” said Justice Thakur while speaking on the opening day of the centennial celebration of the Odisha High Court at Cuttack.

A standoff between the judiciary and the government in the last 18 months over drafting of the new Memorandum of Procedure, the guidelines for appointing Judges, has added to the problem.

It is pending mainly due to differences on its content between the executive and the collegium. It is a matter of grave concern that the friction between the two sides which repeatedly hit the headlines during the previous Chief Justice of India’s time is continuing till now.

Be it noted that Justice Thakur said around 170 proposals for appointment of High Court Judges were now pending with the government. “Access to justice is a fundamental right and the government cannot afford to deny the people their fundamental right,” he said, adding that shortage of Judges was one of the formidable challenges faced now. Of some 900 sanctioned posts of Judges in different High Courts of the country, there are over 450 vacancies which need to be filled up immediately.

He said while the Law Commission of India in 1987 had suggested having 44,000 Judges to effectively tackle the number of pending cases then, the country today has only 18,000 Judges. He also lamented earlier at a function in Delhi that the judiciary had been made the scapegoat for the mounting pendency of cases. It must be iterated that the shortage is not just confined to Calcutta High Court.

It is also spread over all major states barring one or two smaller high courts. Why even in UP we see that Allahabad High Court has a sanctioned strength of 160 Judges yet not even half the vacancies are filled up. This has been going on for years.

This must end now and vacancies must all be filled up on a war footing. Truly speaking, the Centre cites many reasons for why more benches cannot be set up in big states like UP such as that there is lot of opposition from the High Court itself. Agreed! But who will dispute that huge vacancies in all big courts like Allahabad High Court where more than 10 lakh cases are pending must be filled up completely.

This is just not in order. There is no shortage of talented lawyers who are fit to become High Court Judges. But the Centre is not ready to fill the vacancies.

The Centre is also the biggest litigator due to which we see so many cases piling up in courts. Though there are no official figures, the government is a party in about half of the country’s 27 million pending cases.

Now coming back to the main subject, the Calcutta High Court has criticised the Centre for delay in appointment of Judges, while asking whether the nation could think of the Parliament functioning with half its strength.

The Division Bench said, “Immediate action is called for to appoint maximum number of Judges to prevent the justice delivery system from collapsing, which seems to be imminent.”

The Court asked the Union Law Minister to intervene and give top priority to appointing Judges. The Bench minced no words in making it absolutely clear that, “the politeness of this Bench may not be understood as weakness on its part to be firm. It is made clear that continued silence of the Central government in the matter of appointment of Judges in the near future, despite the concerns expressed in this order, would certainly be viewed seriously as interference in the course of administration of justice and followed by appropriate action as authorised in law”.

Let me be direct in asking why the Centre is not ensuring that the vacancies of High Court Judges are filled up? Why is the Centre not serious on this? Why does the Centre not realise that merely saying it wants to reduce judicial backlog and not taking any steps to do so will only lead the nation to disaster? This situation alone explains why the Bench had to be so harsh.

The Bench’s observations came after it could not hear an anticipatory bail plea for more than a month after it was filed on June 5. The petitioner was arrested on July 6 and the plea was junked by the Bench on July 12 as infructuous.

The Bench further said that by February 2018, 10 Judges will retire, cutting the strength to 24 if no fresh appointment is made by that time. The Bench rightly asserted, “Working at less than 50 per cent strength, disposal of proceedings in this court have been quite high… Nonetheless, it cannot be doubted that whatever is being achieved is far below the expectation of the litigants”.

The Bench asked: “Can the nation think of the Lok Sabha in a functional state with half of its elected members? Similarly, can legislative assemblies function at half-strength? The answer cannot be in the affirmative.” It added: “The Lok Sabha and/or the Legislative Assemblies are important Constitutional entities and it would be a disgrace for the largest democracy of the world if elections were not conducted on time.”

The Court noted that the Centre wastes no time in filling up vacancies in bureaucratic posts. It also hammered home the crucial point that, “this Bench is thus left to wonder as to why only in respect of filling up of vacancies in the High Courts, which are also high Constitutional authorities, there is such a brazen apathy and indifference of the political executive.” This was a stinging rebuke of the Centre.

“The independence of the judiciary is regarded as a basic structure of the Constitution, rendering a particular High Court ineffective by adopting a step-motherly attitude cannot but draw the frown of a civilized society.” While delivering a stern warning to the Centre to get its act together, the Court also asked the Registrar-General to intimate the Union Law Ministry about the order on priority.

The Court also directed that a copy of the order be sent to Union law Minister Ravi Shankar Prasad “so that the matter relating to appointment of Judges in this court is given topmost priority”.

The Centre must take immediate action and fill up all vacancies of Judges not just in Calcutta High Court but also in other High Courts. It is the common man, especially the undertrial, who suffers the most due to lack of Judges and often ends up being in jail for more time than he would have if convicted of the charge levelled against him.

(The writer is a Meerut-based advocate)