The Chief Justice of India, Ranjan Gogoi, has written two letters to the Prime Minister suggesting increasing the bench strength of the Supreme Court and fixing the retirement age of High Court judges at 65 (from the present 62 years).
In a third letter, the CJI has sought that retired SC and HC judges be given tenure appointments under Articles 128 and 224A of the Constitution respectively so that they can be assigned pending cases.
All of them are good suggestions and the government should seriously consider them and make the necessary constitutional amendments to implement them. Shortage of judges is at the root of the problem of backlog of cases and it needs to be tackled on a war footing.
The Supreme Court currently has a bench strength of 31 judges which is highly inadequate given the size of the judiciary in the country. There are 24 High Courts in India at present and this number might increase in the future given the trend of carving out smaller states. Decisions of High Courts are usually challenged in the Apex Court. Even if we keep two judges for every High Court, we need 48 judges in the Apex Court.
Further, the CJI has pointed out that with small bench strength it becomes difficult to set up 5-judge benches to decide Constitutional matters. Many experts are of the opinion that the Apex Court must concern itself mostly with constitutional matters to reduce pendency. But that is not always possible.
When the vacancies in the High Courts are filled and they are at full strength, there will be a flood of cases in the Supreme Court on points of law. These cannot be ignored. Since the formalities involved in increasing the bench strength are long and need the amendment of the Constitution, the government will do well to raise it to 50 at one go. It is true that a lot of cost is involved, in creating additional infrastructure and the salaries to be paid, but given the backlog of cases, a kneejerk response of increasing it by four or five judges will not do.
The current retirement age of High Court judges at 62 years is discriminatory as Supreme Court judges retire at 65. Since judges are elevated from the High Court to the Supreme Court, the three-year gap in retirement age means that many good High Court judges do not get elevated to the Apex Court. Hence, it will be good if the retirement age of High Court judges is raised to 65. In fact, since retired judges are sought to be recalled under Articles 128 and 224A, one feels that it will be better if the retirement age of all SC and HC judges is fixed at 68 years.
The CJI has highlighted that there are over 58,669 cases pending in the Supreme Court, out of which 26 cases are pending for 25 years, 100 cases for 20 years, 593 cases for 15 years and 4977 cases for 10 years. In addition, there are 43 lakh cases pending in the 24 High Courts of the country. There are also huge vacancies in all the High Courts. A total of 399 judges need to be appointed to the HCs to complete the sanctioned bench strength, which means there is 37 per cent shortage of judges.
Ideally, there must be a mechanism in place that keeps the bench strength at full capacity by planning well in advance. For this, the revised Memorandum of Procedure (MoP) for appointment of SC and HC judges needs to be finalised. The government must sit with the judiciary to do away with thorny issues and come to an understanding. Once finalised, the MoP must be implemented fast.
The government must look into the matter and take steps to fill the vacancies in the HCs and increase the age of retirement of both HC and SC judges. To clear the backlog of cases, it must also think of recruiting retired judges under Articles 128 and 224A. Pending cases mean justice is being delayed at it has an adverse impact on the faith in the judiciary and the judicial system.
The government must rectify the situation at the earliest. It is time now to address the problems being faced by the judiciary regarding infrastructure and shortage of judges in a planned and concrete manner. The current problems are a result of the knee-jerk solutions applied in the past. This government has the mandate to push through reforms in consultation with the judiciary. It should actively promote an independent judiciary that can serve the ends of justice without fear or favour.