India’s lower courts are sitting on 4 crore cases. Filling judicial vacancies must be a priority

When Union Law Minister Kiren Rijiju at a seminar in Jaipur on July 16 expressed concern about a backlog of around five crore cases piling up in the country’s courts, Chief Justice of India NV Ramana said that one of the biggest reasons for this was the high number of judicial vacancies, along with a lack of judicial infrastructure.

The issue of judicial vacancies keeps being raised and is a sore point in the relationship between the judiciary and the executive. For instance, at a conference in October, Ramana complained that the Centre had only cleared seven names of the 106 candidates recommended to be appointed as High Court judges. But Rijiju told the Rajya Sabha in December that the Centre could not be blamed for sitting on appointments.

However, in these conversations, the focus was firmly on judicial vacancies in India’s High Courts. The problem that does not get highlighted quite enough is the vacancies in the lower courts, which come under the state governments and High Courts.

These vacancies are important as around 4.1 crore pending cases are before these courts. The lower judiciary presently has around 5,300 seats vacant – over 20% of its capacity. Different states have different procedures, and thus unique problems, when it comes to lower court appointments.

The Supreme Court and the Union government have also tried intervening by prescribing timelines for appointments and recommending a uniform recruitment policy for the entire country. However, that has also not yielded substantial results.

The state of the judiciary

According to an answer in the Rajya Sabha on August 4, the lower courts have around 4.1 crore pending cases while the High Courts have around 60 lakh pending cases. Further, the Supreme Court pendency is around 71,000 cases.

When it comes to vacancies, the Supreme Court has three seats vacant (out of 34), High Courts have 380 seats vacant (out of 1,108) and district and subordinate courts have 5,342 vacant seats (out of 24,631).

No data collection

One of the main problems is the lack of data about vacancies in district courts. While the Union Ministry of Law and Justice publishes a comprehensive dataset every month noting vacancies in the Supreme Court and High Courts, it has no similar mechanism for the lower courts.

“There is no consolidated credible source when it comes to lower court vacancies,” said Vidhi Centre for Legal Policy senior resident fellow Deepika Kinhal, who researches judicial reforms. She said that researchers instead rely on disaggregated data, through answers in Rajya Sabha or perhaps a speech by the law minister.

Even when the Supreme Court was looking into lower court vacancies in 2018 to assess if court-prescribed recruitment guidelines were being followed, it compiled data from the registries that handle the administrative functioning of High Courts. The Supreme Court noted that there was a mismatch in the data about how many lower court posts were vacant and how many had recruitment underway.

Despite this, the publicly available data point to a constant vacancy in lower courts. “There has always been a vacancy of around 20%-25% [in lower courts],” said senior advocate Vijay Hansaria, who has worked on cases relating to judicial vacancies.

Whose problem is it anyway?

While appointments to the High Courts and the Supreme Court are made by the senior-most judges of the Supreme Court and Central government, appointments to the lower judiciary are governed by a state’s government and its High Court.

The lower judiciary of India is divided into two parts: the higher judicial service consisting of district judges and the lower judicial service consisting of civil judges.

Article 233 of the Constitution says the state’s governor must appoint district judges after consulting the state’s High Court. To be appointed as a district judge, a person must either have been a government employee or a lawyer for at least seven years.

For civil judges, Article 234 says that appointments must be made by the governor according to the rules made by her after consulting the state’s public service commission and the High Court.

The recruitment process involves an examination followed by an interview. The state’s High Court has full control over postings and promotions in the lower courts.

Within these broad guidelines, states have different methods for making lower judiciary appointments.

A 2018 study by Vidhi Centre for Legal Policy found that in all 29 states, the High Courts were responsible for conducting examinations and recruiting district judges. But for civil judges, in 10 states, the public service commissions were responsible for conducting the examination. In the others, the High Court was responsible.

Where does the problem begin?

The entire recruitment process is riddled with problems, people familiar with the situation said. “Problems arise at every step,” Hansaria explained. “Sometimes exams do not happen. Sometimes results are not declared. Other times, appointment letters are not issued. If appointment letters are issued, then police verification may take time.”

These delays might be caused by both the state judiciary as well the executive, he said.

Besides, the process and timelines for conducting examinations are fairly ad-hoc, Kinhal said. Even the 2018 report noted that very few states had designated a body responsible for conducting the exam. Thus, candidates faced difficulties in even identifying which body to complain to if exams are not being held on time.

Not enough candidates

Even when examinations are conducted, there is the challenge of the judiciary being unable to attract enough candidates. For instance, in Jammu and Kashmir, not one candidate passed the district judge exam held in September 2019. This was the fourth time this had happened.

Something similar occurred in Tamil Nadu in 2019. Of around 3,500 lawyers appearing for the district judge examination, none passed. However, the candidates said that negative marking and irrelevant test questions were the reasons for this result.

“The district judiciary is not able to attract good candidates because of lack of career progression,” said Kinhal.

One reason for the small number of people taking the exams is the fact that the lower judiciary does not offer a clear career path: few district court judges are elevated to the higher judiciary. “The best bet for most of them who enter through judicial services is to retire as district judges,” she explained.

Looking for a solution

There have been attempts by both the Supreme Court and the Union government to try to fill the vacancies in lower judiciary.

In 2012, in order to make the process uniform, the Union government had proposed an All India Judicial Service examination along the lines of civil services examination held by the Union Public Service Commission. However, a lack of consensus between various state governments and High Courts meant that the proposal has not moved forward.

The Supreme Court has also stepped in a few times. In 2002, it directed that all lower courts vacancies should be filled by March 2003. In 2007, it noted that vacancies were not filled and prescribed timelines for each step of the recruitment process. But this was not followed by several states.

Therefore, in October 2018, the Supreme Court instituted a petition by itself and started monitoring the progress made by High Courts and state governments in filling the vacancies according to the timeline it had prescribed in 2007.

The court’s monitoring led to some benefits. Several things such as “appointments, verifications etc., were done before the date of hearing because the Supreme Court was tough”, said Hansaria, who was also one of the lawyers assisting the court. High Court registrars or state chief secretaries would be summoned if deadlines were not followed, he said.

However, while it monitored the recruitment process for more than a year, the matter has not been listed since March 2020.

Hansaria hoped that the Supreme Court will resume its efforts to monitor the appointments, because High Courts and state governments have their own priorities. “The lower judiciary is not a priority for anyone,” he said.