Doubling number of judges will not defeat pendency, already hard to fill HC vacancies: SC

A view of the Supreme Court of India in New Delhi. File
| Photo Credit: Sushil Kumar Verma

“The judiciary is overburdened because of the system… If we apply the brakes, we will be absolutely clear of arrears,” says the CJI

The Supreme Court on November 29, 2022 said that increasing the number of judges will not demolish the perennial problem of pendency, noting that it is already difficult finding good lawyers to accept the call to the Bench in High Courts.

The court said that a Public Interest Litigation (PIL) seeking to “double” the number of judges in the High Courts and the district judiciary was a rather “simplistic” solution to arrears.

At one point, Chief Justice of India D.Y. Chandrachud asked petitioner-advocate Ashwini Kumar Upadhyay whether he wanted the Supreme Court to increase its judicial strength to 70 from the current 34.

Mr. Upadhyay said that the judge-population ratio in developed countries was 50 for every million. Mr. Upadhyay said that there were at least 10 crore cases pending in the district judiciary alone.

“Then let me tell you something. This kind of petition will not be heard by the American Supreme Court. That is also the reality of our judicial system… that we have widened access to the Supreme Court to a point that is becoming dysfunctional. This petition will not be entertained by the U.S. or the U.K. Supreme Courts,” Chief Justice Chandrachud reacted.

The Chief Justice said that the judiciary was “overburdened because of the system”. He added, “If we apply the brakes, we will be absolutely clear of arrears.”

“The American Supreme Court does not hear lawyers on whether you should admit a case for hearing. The U.K. Supreme Court decides which 180 cases they have to hear,” the CJI observed orally.

Chief Justice Chandrachud recounted how, when he was the Chief Justice of the Allahabad High Court, he had received a letter from the Law Minister to increase the judicial strength in the court by 25%.

“I said ‘good heavens, I cannot fill up my 160 and you want to increase from 160 by 25%’,” the CJI said.

The Chief Justice said that it was difficult to get good lawyers to fill up the existing judicial positions itself. “Try getting judges to fill up the existing positions… then you will know how difficult it is,” he said.

He said the reality on the ground concerning High Courts ought to be appreciated. “We can’t just appoint anybody… Ask the Chief Justice of the Bombay High Court as to how many good lawyers are willing to accept judgeships today,” Chief Justice Chandrachud said.

On Monday, Justice Sanjay Kishan Kaul voiced similar concerns about finding good legal talent to join the Bench after he and the CJI had met with the Chief Justices of the High Courts. Justice Kaul had said that 20% of the judicial posts in the High Courts were vacant.

Justice Kaul, the second senior-most Supreme Court judge and a Collegium member, had said that the Chief Justices of several High Courts had complained about lawyers being unwilling to accept invitations to the Bench because of the uncertainty posed by the government’s inaction. The Justice Kaul Bench on Monday had criticised the government for holding up Collegium recommendations for months together.

Justice P.S. Narasimha, the Associate Judge on the CJI Bench, said on Tuesday that it was a “non sequitur to say that you increase the number of judges and pendency will go away. It is not correct”. Increasing the number of judges was not the solution, Justice Narasimha said.

Mr. Upadhyay said that all matters were pending in the Allahabad High Court for at least 10 years.

“That’s an exaggeration. Matters are also disposed of within a week because judges found there is nothing in them,” the CJI responded. The court allowed Mr. Upadhyay to withdraw his petition while giving him liberty to study the problem of pendency at a deeper level and approach the court, if necessary.

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