Recently, the Supreme Court collegium reiterated its recommendations for the appointment of 11 judges to certain High Courts.  It had first recommended these names earlier this year and in August last year, but these appointments were not made.  The Indian judiciary faces high vacancies across all levels (the Supreme Court, High Courts, and subordinate courts).  Vacancy of judges in courts is one of the reasons for delays and a rising number of pending cases, as there are not enough judges to hear and decide cases.  As of today, more than four crore cases are pending across all courts in India.   In this blog post, we discuss vacancies across courts over the years, delays in appointment of judges, and methods to determine the adequate judge strength required to handle the caseload courts face.

High vacancy of judges across courts

Vacancies in courts keep on arising periodically due to retirement, resignation, demise, or elevation of judges.  Over the years, the sanctioned strength of judges in both High Courts and subordinate courts has been increased gradually.  However, vacancies persist due to insufficient appointments (see Figures 1 and 2).  Between 2010 and 2020, vacancies increased from 18% to 21% across all levels of courts (from 6% to 12% in the Supreme Court, from 33% to 38% in High Courts, and from 18% to 20% in subordinate courts). 

As on November 1, 2021, the Supreme Court had a vacancy of one judge (out of a sanctioned strength of 34).  Vacancy in High Courts stood at 37% (406 posts vacant out of a sanctioned strength of 1,098).  Since May, 2021, the Supreme Court collegium has recommended more than 130 names for appointment as High Court judges.  In three High Courts (Telangana, Patna, and Calcutta), at least half of the posts are vacant (see Figure 3).  The Standing Committee on Personnel, Public Grievances, Law and Justice (2020) noted that every year, 35-40% of posts of High Court judges remain unfilled. 

Appointments of High Court judges are guided by a memorandum of procedure.  As per this memorandum, the appointment process is to be initiated by the concerned High Court at least six months before a vacancy occurs.  However, the Standing Committee (2021) noted that this timeline is rarely adhered to by High Courts.  Further, in the final stage of the process, after receiving recommendations from the Supreme Court collegium, the executive appoints judges to the High Court.  No timeline is prescribed for this stage of the appointment process.  In 2018 and 2019, the average time taken to appoint High Court judges after receiving the collegium’s recommendations was five to seven months.

As of today, over 3.6 crore cases are pending before subordinate courts in India.  As on February 20, 2020, 21% posts for judges were vacant (5,146 posts out of the sanctioned strength of 24,018) in subordinate courts.  Subordinate courts in Bihar, Haryana, and Jharkhand (among the states with high population) had a high proportion of vacancies of judges (see Figure 4).  Note that the Supreme Court is monitoring the procedure for appointment of judges to subordinate courts.

For an analysis of the data on pendency and vacancies in the Indian judiciary, see here.

Figure 4: Vacancy of judges across subordinate courts (in %) (as on February 20, 2020)

How many judges do we need?

The Law Commission of India (1987) had noted the importance of manpower planning for the judiciary.  Lack of adequate number of judges means a greater workload per judge.  Thus, it becomes essential to arrive at an optimal judge strength to deal with pending and new cases in courts.  Over the years, different methods of calculating the required judge strength for subordinate courts (where the backlog of cases in the Indian judiciary is concentrated) have been recommended (see Table 1). 

Table 1: Methods recommended for calculating the required number of judges for subordinate courts

Sources: Reports No. 120 (1987) and 245 (2014), Law Commission of India; Report No. 85, Standing Committee on Home Affairs (2002); Note for Calculating Required Judge Strength for Subordinate Courts, National Court Management Systems Committee (NCMS) (2016); Imtiyaz Ahmad vs. State of Uttar Pradesh, Supreme Court (2017); PRS.