Day 3 Arguments

Judicial Vacancies in the Lower Courts

Day 3 Arguments: 29th November 2018

The Court has taken suo moto cognisance of the large number of judicial vacancies (unfilled judge posts) in the lower courts across India. Suo moto means ‘on its own motion’. Meaning, the Court has started proceedings even though no party has approached the Court, asking it to do so.

In last hearing on 15th November, the Registrar Generals of the High Courts and the authorised representatives of the Chief Secretaries of Uttar Pradesh, Maharashtra, West Bengal, Chhattisgarh and the North Eastern States were present in Court. The Court was assessing whether these States have been filling vacancies in a timely fashion, as outlined by the guidelines issued in Malik Mazhar Sultan.

In the 15th November hearing, the Court granted the State of West Bengal and Delhi two weeks to file affidavits by the Chief Secretary and Finance Secretary recording the details of the plan for ensuring adequate infrastructure is made available for the functioning of courtrooms upon the filling up of vacancies.

West Bengal

In today’s hearing, Amicus Curiae Shyam Divan began by addressing the infrastructure issue in West Bengal. He signalled his dissatisfaction with the response filed by West Bengal, stating that it did not respond to specific questions raised by the Bench in its 15th November order.

As per the compliance affidavit filed by the High Court of Calcutta, a total of 422 additional courts and 630 residential units will be required to accommodate the newly appointed judges on the filling up of all judicial vacancies in the State. Of these only 75 Courts and 39 residences are under construction.

In the affidavits filed by the Chief Secretary and the Finance Secretary of the State of West Bengal, reference was made to a meeting of functionaries dated 20th November, 2018 where a consensus was reached that there is no shortage of funds for the construction of additional Court halls and residences for judges. The affidavits also mentioned a letter dated 27th November, 2018 which listed all the projects proposals forwarded to the government for seeking approval for the necessary construction. However, the Affidavits did not record the details of the specific time period within which these projects would reach the stage of completion.

Noting the failure of the functionaries to file detailed affidavits responding to the concerns raised by the Bench in the order dated 15th November, CJI Ranjan Gogoi observed that there was an unwillingness on the part of the State authorities to take adequate steps to address the issue. CJI Gogoi stated that the Bench was not satisfied with the affidavits of the Chief and Finance Secretaries. Further, he noted that the Registrar General of the High Court of Calcutta had failed to provide an estimate of the total funds required for the construction that was still to be undertaken.

Justice Kaul and CJI Gogoi expressed the need for a detailed plan listing the specific time frame within which the State proposed to undertake and complete the process of providing infrastructure for courts and judges’ residences. CJI Gogoi directed the government of West Bengal to inform the Court of the exact time frame within which it seeks to complete the construction of all 422 courts and 630 residences and accordingly allocate the budget for subsequent years.

The State of West Bengal has been granted 7 days-time to file an affidavit to this effect and the matter will be taken up for hearing next on 5th December, 2018. The Bench ordered The Chief Secretary and Finance Secretary of the State of West Bengal to be present in Court on the said date.

New Delhi

As per the order dated 15th November, 2018, the Chief Secretary was to file an affidavit stating the steps being taken to ensure that the 167 additional courtrooms were made available in time for the newly appointed judges to take charge of their office. A draft affidavit was referred to by Mr. Divan, however, the same had not been placed on record by the State functionaries. CJI Gogoi directed that the Government of Delhi to file a detailed response with respect to the steps being taken ensure the availability of infrastructure on or before the 12th of December, 2018.

Noting that the number of vacancies advertised by the High Court had been revised to 147 as of 18th November, 2018, CJI Ranjan Gogoi expressed dissatisfaction with the repeated failure on part of the High Court of Delhi to regularly fill up vacant posts in the judiciary in the absence of intervention by the Supreme Court. Further, he stated that the High Court could not justify its inaction by pointing to the unavailability of infrastructure. He emphasised that providing manpower and infrastructure was within the domain of the Territory and, hence, the High Court must ensure that the State government discharged its constitutional obligations to ensure that courts within the Territory are functional.

The Court will hear the matter next on 5th December, 2018, where it will hear the State of West Bengal. The Court may also choose to hear Amicus Curiae KV Vishwanathan present submissions on behalf of the States of Gujarat, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka and Kerala

Subsequently, the Court will hear New Delhi on 13th December, 2018.

(Court reporting by Disha Chaudhry)