Retirement spree in SC may affect efforts to scale down pendency

The retirements in the topmost rung of the judiciary in 2022 would encompass changes in the powerful Supreme Court Collegium. Starting from May 2022, a number a SC Judges will be retiring this year. here are seven impending retirements in seven months.

Pendency of cases

• The Supreme Court’s statistics show that 70,362 cases are pending with it as on April 1, 2022.
• Though over 19% of them are not ready to be placed before a Bench for judicial hearing as they have not completed the required preliminaries.
• While 52,110 are admission matters, 18,522 are regular hearing cases.
• The number of Constitution Bench cases (both main and connected matters) totals 422.

General scenario: Pendency of Cases

• India’s legal system has the largest backlog of pending cases in the world – as many as 30 million pending cases.
• This number is continuously increasing and this itself shows the inadequacy of the legal system.
• And also due to this backlog, most of the prisoners in India’s prisons are detainees awaiting trial.

SC after pandemic

• Supreme Court has only recently resumed full physical hearings after two years of virtual system.
• The court is juggling Benches, judges are sitting in different combinations on Special Benches to quickly hear and dispose of pending matters, including death penalty cases.
• In this context, the flurry of retirements may slow the recovery at a crucial time.
• Adding to this is the fact that there are already two vacancies in the top court.
• The working judicial strength is 32 against the sanctioned strength of 34.

Constitutional Position

• Article 124(2) of Indian Constitution deals with the appointment of Judges of the Supreme Court. As per this article:
• Every judge of SC is to be appointed by the President.
• The President will consult such judges of the SC and of the HCs in the States as the President may deem necessary.
• CJI shall always be consulted in case of the appointment of judge other than the Chief Justice of SC.

Controversy over the Word Consultation

• The constitutional provision gave the CJI and other judges the status of consultant and left the decision of appointment to the executives.
• This has been interpreted by the SC in a different way ultimately leading to the evolution of the Collegium system.

Evolution of Collegium System

• The current collegium system has evolved over a period of time through the judicial pronouncements. These cases have been mentioned as below:

First Judges Case (1981):

• SC held that consultation does not mean concurrence.
• Gave Primacy to Executive over Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993)

• Court reversed its earlier ruling by changing the meaning of consultation to concurrence.
• Advice tendered by CJI is binding.
• CJI would take into account the views of two of his senior most colleagues.

Third Judges Case (1998)

• The Court gave primacy to the opinion of CJI in the matter of appointment of Judges.
• However, the Chief Justice must consult four senior-most judges of SC.
• The Opinions of all members of the collegium should be in writing.
• If the majority of the collegium is against the appointment of a particular person that person shall not be appointed.

Current Procedure of Appointment of SC judges

• Currently, Judges are appointed by Memorandum of Procedure (MoP) - a crucial document agreed upon by the government and the judiciary on appointment of judges.
• Since Collegium system is a judicial innovation (not mandated through legislation of constitutional texts), MoP was brought into working.
• MoP fixes the protocol under which the collegium system works.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
• The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Eligibility criteria for SC judges

• For a person to become a judge of Supreme Court
• He must be a citizen of India, and
• Must have 5 years of experience as a judge in the High Court; or
• Must have 10 years of experience as an advocate in High Court; or
• is in the opinion of the president, a distinguished Jurist.

Factors leading to under-performance of Indian Judiciary

• The issue of heavy arrears pending in the various courts of the country has been a matter of concern since the time of independence.
• The primary factors contributing to docket explosion and arrears as highlighted by Justice Malimath Committee report are as follows:
• Population explosion
• Litigation explosion
• Hasty and imperfect drafting of legislation
• Plurality and accumulation of appeals (Multiple appeals for the same issue)
• Inadequacy of judge strength
• Failure to provide adequate forums of appeal against quasi-judicial orders
• Lack of priority for disposal of old cases (due to the improper constitution of benches)
• Issue of appointment in Quasi-Judicial Bodies

Way ahead

• For pendency, time limits should be prescribed for all cases based on priorities.
• So setting time standards is essential and it will vary for different cases, and also for different courts depending on their disposal capacity.
• Alternative disputes resolution (ADR) mechanisms should be promoted for out-of-court settlements.