On Tuesday, the central government ruled against its own reported objections and appointed five serving judicial officers as judges in the Delhi High Court. But it is clear that the government and the Supreme Court of India are still far from agreement on the question of judicial appointments. A bench led by Chief Justice T S Thakur has yet again expressed concern that the government had moved too slowly to fill up vacancies in the judiciary, asking if it wished to “scuttle the working of the institution”. The government has responded sharply by claiming that the rate of appointments has not slowed down particularly, and that, in fact, more posts have been created. What underlay the judges’ concern is the worry that the government is going slow on the appointments process in order to gain bargaining power in its tussle with the judiciary over the mechanism by which such appointments are made.
The government and the Supreme Court are negotiating over the text of a Memorandum of Procedure that will determine how future appointments to the higher judiciary are decided. This will be the second attempt to replace the existing “collegium” system, in which the higher judiciary essentially appoints itself. The first, the National Judicial Accountability law, was struck down by the court. Several senior judges themselves have expressed dissatisfaction with the working of the collegium. Yet finding a replacement system that balances the powers of the executive and the judiciary has not been easy. In the interim, the impression has been created that the government is holding off on the pace of judicial appointments. It is this perceived delay that has led the Supreme Court to accuse the government of harming the delivery of justice to citizens. Since January, the government had been sitting on the names of several candidates that the collegium had selected. Although, after the Supreme Court raised the issue, several of the names have been cleared.
While filling judicial vacancies is an urgent need, it should, however, be kept in mind that that is not the only solution to the problem of long delays in India’s courts. Such delays cause great inconvenience to individual citizens and make it harder to do business in India. Many of them are not born just of the shortage of judges but also because of outdated, archaic or inefficient procedures. For example, it is far from clear why the Supreme Court itself chooses to add to its workload by taking on far more Special Leave Petitions than could strictly be considered necessary. In addition, the Supreme Court takes up quite a high percentage of appeals — around 12 per cent, according to one study. The US Supreme Court, in contrast, takes up barely one per cent of the cases that reach it – and usually only those that turn on the interpretation of an important constitutional point. India’s Supreme Court takes on many more ordinary cases. Other forms of reform also need to be considered to speed up the administration of justice. For one, verbal arguments should be minimised, and more submissions should be made in writing. For another, the number of adjournments needs to be cut down on. While the appointment process does need to be streamlined, other avenues for reform available to the higher judiciary should not be ignored.