The worrying case of mounting judicial vacancies

Vacancies in high courts continue to mount with the collegium which made a comeback three months ago yet to recommend fresh names for the posts, including that of chief justices to eight of them.

According to the latest data complied by the law ministry, out of the approved strength of 1,044 judges in the 24 high courts, there are 443 vacancies.

In other words, the high courts are functioning with 601 judges as on January 1.

The Allahabad high court faces the maximum vacancies of 86 judges, followed by 38 in the Madras high court.

The approved strength of the Madras high court has been increased from 60 to 75 with effect from December 21, 2015.

The high courts of Bombay and Punjab and Haryana have 35 vacancies each. The high court of Tripura has no vacancy, while the Meghalaya High Court is one judge short of its approved strength of four. The Sikkim High Court with an approved strength of three is also short of one judge.

With an approved strength of 31 judges, the Supreme Court has five vacancies.

There was no system in place between April 13 and October 16 last year on appointments to the Supreme Court and the high courts. The National Judicial Appointments Commission Act and an accompanying Constitutional Amendment Act were notified on April 13, but were declared as unconstitutional by the Apex court on October 16.

When the NJAC Act was in force, the proposed panel had failed to function as the then Chief Justice of India Justice H L Dattu had refused to be a part of it.

No judge could be elevated as chief justice of a high court, transferred to another high court or elevated to the Supreme Court as there was no system in place for the purpose.

After the NJAC Act was scrapped by the apex court, it decided to review the functioning of the collegium system amid complaints that it was opaque.

Though the collegium system, which the new law had sought to overturn, is back, the apex court collegium has indicated that no new fresh appointments will be recommended till the new memorandum of procedure, a document to guide appointment of judges, is finalised.

The government is finalising the MoP which will be approved by the SC collegium headed by the Chief Justice of India.

There are two MoPs -- one for appoint the Chief Justice of India and other judges of the Supreme Court, and the other for Chief Justices and other judges of the high courts.

As the collegium is not recommending fresh names, the high courts of Andhra Pradesh/Telangana, Karnataka, Bombay, Gauhati, Gujarat, Patna, Punjab and Haryana and Rajasthan are functioning with Acting Chief Justices.

Seeking to overcome the shortage of judges in high courts, government had sought approval from the Supreme Court to extend the terms of judges from three to six months when the validity of the NJAC Act was being heard in the Apex court.

The collegium is continuing with the practice by recommending extension of service of additional judges. In this month alone, 29 additional judges from four high courts have been granted extension.

Usually, additional judges are appointed for two years and later elevated as permanent judges.

In a landmark judgment on October 16 last, the Apex court had struck down as unconstitutional the NJAC Act that was brought in to replace the over two-decade-old collegium system of judges appointing judges in the higher judiciary.

The judgment, that enabled the collegium system to continue, also declared as unconstitutional the 99th amendment to the Constitution which allowed the NJAC to come into being.