Out of a total of 1079 posts of judges in all the High Courts in India, a whopping 442 are lying vacant as of last week. This translates to a vacancy of 41% in the High Courts. The vacancy in the Supreme Court is lower, at 16%.
High Courts, along with the Supreme Court, comprise the ‘higher judiciary’ of India. They act as courts of appeals against judgments of lower courts. In cases involving public interest, these courts also act as trial courts and the case can be filed directly in them.
Appointments to the higher judiciary are made by the central government in accordance with the law.
However, the appointments of judges slowed to a crawl last year after a case was filed against the setting up of the National Judicial Appointments Commission for the same purpose.
The Commission was supposed to be tasked with filling up vacancies in the higher judiciary, and was to start functioning around April last year.
However, certain lawyers and lawyers’ associations challenged the setting up on the Commission on the grounds that it would lead to meddling in the affairs of the judicial branch by the executive branch of the government.
The Indian constitution envisages an independent judiciary along the lines of the American constitution, which divides the government into three independent branches, the legislature to create laws, the executive to implement them and the judiciary to resolve disputes in the implementation.
Following this, the National Judicial Appointments Commission was declared unconstitutional by the Supreme Court in October last year, and the collegium system of judges appointing judges was restored.
However, during the hearing of the case, the government did not appoint any judges, which contributed to the high level of vacancy in the High Courts. The central government has appointed 105 new judges at various High Courts so far in 2016.
All personal cases and disputes are first head at district and subordinate courts, which are also called trial courts.
Out of a total 16,383 judge posts in these trial courts, 30%, or 4,937 posts were lying vacant as of June this year.
The appointments to these courts — comprising magistrate courts and sessions courts — are made by the state governments.
At the end of 2015, a total of 2.7 cr cases were pending in the lower judiciary, and another 39.3 lakh cases were in various stages of trial in the higher judiciary — adding up to around 3.1 cr cases.
India has a total population of around 130 cr. Assuming an average of 2 persons involved per case, at any time 3.1% of the population was involved in an ongoing trial as a petitioner or defendant.