Photo Courtesy: The Indian Express.

Government asks for reconsideration of 18 recommendations for HC judgeship; SC Collegium acquiesces in five cases

Union Law Minister tells the Parliament that of the 1,108 judge posts in high courts across the country, 333 are lying vacant. He also reveals that since 2018, of the 554 judges appointed, a whopping 77.61 were confirmed to belong to the ‘general’ category.

THE Union Government on Tuesday revealed in the Parliament that it has sought reconsideration of the Supreme Court’s Collegium on 18 proposals sent by it to the government for high court judges’ appointments. Of them, the Collegium decided to reiterate six names. However, regarding seven other names, the Collegium has asked for more inputs from the corresponding high court collegium while in the remaining five cases, it decided to return the proposal to the high court concerned.

The information was shared by Union Law Minister Kiren Rijiju in the Rajya Sabha in response to a set of questions asked by Member of Parliament (MP) John Brittas.

The minister further added that a total of 142 proposals recommended by high court Collegiums are at various stages of processing.

In response to another set of questions, the minister informed the Parliament that a total of 333 posts of judges are lying vacant in high courts across the country. The sanctioned strength of high court judges at present is 1,108.

Four proposals for filling the vacancies are pending with the Supreme Court Collegium, the minister confirmed.

The Minister also revealed that as on January 30, recommendations in respect of 236 vacancies (191 existing ones and 45 anticipated vacancies during the next six months) are yet to be received from high court Collegiums, in breach of the six months’ advance timeline for making recommendation for anticipated vacancies.

In Subhash Sharma versus Union of India (1990), the Supreme Court had said that “when a vacancy is expected to arise out of the retirement of a judge, steps for filling in the vacancy should be initiated six months in advance.”

As per the existing Memorandum of Procedure on the appointment of high court judges, the proposal is initiated by the Chief Justice of the high court in consultation with the two senior most puisne judges of the high court. The views of the Constitutional Authorities of the state on the proposals are also obtained. The Union Minister of Law and Justice considers the recommendations in the light of such other reports as may be available to the Union Government in respect of the names under consideration. The complete material is then forwarded to the Chief Justice of India for their advice, who takes decisions in consultation with the two senior-most judges of the Supreme Court.

The Law Minister also commented on the letter he sent to Chief Justice of India Dr. D.Y Chandrachud earlier this month which created an uproar in the country for allegedly seeking the Union Government’s representation in the selection process. He said his letter emphasised the need to finalise the Memorandum of Procedure for judicial appointments in view of various judicial pronouncements and among other things suggested that a committee in respect of Supreme Court judges’ appointment should consist of a representative nominated by the Union Government.

“For appointment of judges in the high courts, the Search-cum Evaluation Committee should consist of a representative nominated by the Government of India and a representative of the state government(s) under the jurisdiction of the high court as nominated by the chief minister. The above-mentioned Search-cum-Evaluation Committees will be entrusted to prepare a panel of eligible candidates from which the respective Collegiums will make recommendations. This, along with other measures suggested, will pave the way for a more transparent, accountable and expeditious mechanism for appointment of judges to constitutional courts,” the Minister stated.

Data on judicial appointments to high courts in the last five years

In response to another set of questions regarding the number of judges appointed to the Supreme Court and high courts in the last five years, as well as the number and proportion of judges hailing from Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), religious minorities and the female gender, the minister furnished two sets of data.

The following is the data presented relating to high court bench appointments made since 2018:

As per the above data, since 2018, 554 judges have been appointed to various high courts, of which a whopping 77.61 per cent are from the ‘general’ category. Only 3.42 per cent are SCs, 1.08 per cent are STs, 10.46 per cent are OBCs, and 4.87 per cent are from religious minorities. (Data on the background of 2.52 per cent judges appointed in this period is not available).

Additionally, only 15.16 per cent of the judges appointed to the high courts in these years have been women, which means that almost 85 per cent of the judges are men.

Last year saw 165 judges being appointed, by far the most since 2018. In contrast, in 2020, only 66 judges were appointed to high courts, and none to the Supreme Court.

No corresponding category-wise data was provided for Supreme Court judicial appointments for the same period.

As per the minister, the Union Government is committed to social diversity in appointments to the higher judiciary, and has been requesting the Chief Justices of high courts to give due consideration to suitable candidates belonging to SCs, STs, OBCs, religious minorities and the female gender while sending recommendations for judicial appointments.

However, the dismal representation of these groups in high court judicial appointments in the last five years indicates that social diversity has yet to percolate into these appointments.

The minister has also furnished data relating to appointments made to each high court as well as the Supreme Court in each year since 2018, as well as the number of judges from SC, ST, OBC and among women in district and subordinate courts across the country. However, in the absence of data regarding the proportion of the latter among all district and subordinate court judges in the country, it is not possible to comment on the state of social diversity among judges in the lower judiciary.

The minister also clarified in his response that as per Articles 233234235 and 309 of the Constitution, administrative control over the district and subordinate judiciary and authority over appointments to the same is vested with high courts and state governments, with no direct control being exercised by the Union Government.