JUDICIAL APPOINTMENTS AND JUDICIAL REVIEW

Recently, while hearing petitions challenging the selection procedure laid down under the Chief Election Commissioner (CEC) and Other Election Commissioners (EC) (Appointment, Conditions of Service and Term of Office) Act, 2023, the Supreme Court (SC) made a telling observation on the speed of appointment of the current CEC – “We can only say we wish this speed is maintained in the appointment of judges”. The observation firmly puts the spotlight on a major challenge confronting the administration of justice and the process of Judicial Review, now considered a central feature in the basic structure of the Constitution; namely the timely appointment of judicial and quasi-judicial functionaries.

The data available on this from parliamentary proceedings and the media is truly frightening. Without quibbling over exact figures, this speaks of vacancies of over 5000 in the sanctioned strength of around 25000 judicial officers in the District and Subordinate Courts of the country, i.e. one in five. Again, around 350 of the total sanctioned strength of around 1100 High Court judges lie vacant; i.e. one in four. This does not bode well for a system almost overwhelmed with around four and a half crore pendency in the District and Subordinate Courts and approximately 60 lakhs and 85000 cases pending in the High Courts and the Apex Court respectively. Thus the vacancy and pendency figures certainly draw a grim picture of justice delayed, along with all that this connotes.

The periods for which some of the existing vacancies have existed is another cause for alarm. While any comprehensive measurement of this phenomenon, in what is a perpetually changing position, is a difficult exercise, there is no dearth of anecdotal evidence to support the public concern. Some of our statutory Tribunals provide a case in point. In May of 2022, The Times of India reported that the Apex Court, taking note of the 40 vacancies out of a sanctioned strength of 69 of Members in CAT, (the Central Administrative Tribunal), exercised its powers for doing “complete justice” as referred to in Article 142 of the Constitution and directed that existing Judicial and Administrative Members, subject to their availability, not retire and continue working even after the statutory end of their tenures so as to keep CAT functional. This arrangement was extended in subsequent hearings. The Hindu, in March this year, reported that acting on the Union Government’s own proposal, this arrangement has been continued for another six months, presumably so as to allow for replacement of retiring members as well as fresh recruitment up to a satisfactory level. Clearly, the vacancy problem in CAT continues.

Another report this month, again in The Hindu, speaks of an SC petition pointing out that out of the eleven Benches of the AFT, (Armed Forces Tribunal), only three would remain functional by the end of the year if vacancies are not urgently filled. This petition also seeks a direction that the present Judicial and Administrative Members continue in office beyond their dates of retirement, subject to their consent, till such time the necessary appointments are made.

In suo-motu proceedings, noting a vacancy level of around 19 in a total strength of 63 Members in the NCLT, (National Company Law Tribunal), and a pendency scenario where matters remain unresolved for up to four years, the Apex Court, calling this “extremely grim and dismal”, has observed that if these issues are not addressed expeditiously, the very purpose of enacting the IBC, (Insolvency and Bankruptcy Code), 2016 may stand frustrated. With the ITAT, (Income Tax Appellate Tribunal), the SC, in a landmark judgement in November 2025, has brought down the experience requirement for appointing CAs, (Chartered Accountants), as Technical Members to ten years, bringing this on par with the requirement for Advocates to become Judicial Members. How this will impact the vacancy level of over 20 Members on the judicial side and over 10 on the Accountant side, as reported in social media posts, only time can tell. For now, the problem continues unabated.

In all the higher judicial fora, including the foregoing case studies, the problem of minimum age of entry, coupled with maximum age of statutory superannuation adds another dimension of complexity. While the former affects the length of tenure and therefore the attractiveness of career prospects for the younger incoming applicants, the superannuation restriction on tenure can become a critical factor when we consider retirement ages. This is 62, (for High Court judges,), and 65, (for Supreme Court judges) and generally 65 for the statutory Tribunals. When this is seen in conjunction with the generally high and stringent seniority and experience related conditions imposed for entry, it will immediately become clear that since the age of application for such appointments goes up because of this, any delay in making appointments further cuts down the service tenure of the appointee. In this context, conspiracy theories have seen such delays as one of the tools for what has come to be described as “cherry picking” in judicial appointments. Thus, for example, if a member of an organised Service of the Union, on reaching the seniority and experience prerequisites, applies for a Tribunal appointment when close to the retirement age of 60, the maximum window available for his tenure, which in any case has come down to being three years in most cases from the earlier five years, reduces sharply with every delay in making appointments. Thus such delay, even if it does not put him beyond the age of superannuation from the Tribunal and thus squarely out of the reckoning, can so reduce his tenure as to justify the appointing authority to “find” it not being worthwhile to appoint him for the truncated tenure which remains. Again, this puts him out of the running making it possible to appoint a less senior, less experienced, and, in some cases, even a less qualified candidate!

Even otherwise, the term “cherry picking”, describing the practice of the appointing authority selectively appointing only certain candidates from a list recommended by the duly constituted search and selection committee, has been used by the Apex Court while expressing its unhappiness over NCLT and ITAT appointments in 2021, to give just a few examples. The Union Government of course has forcefully represented against such characterisation, arguing that it is entitled to not follow certain recommendations, while also pointing out that, in some cases, the selected candidates fail the rigours of the 360 degrees, (i.e. all-round comprehensive), scrutiny which has to be undertaken in the larger public interest before finalising appointment to sensitive judicial positions. Be as that may, what is indisputable is that such discord almost always results in further delays in appointments.

In the face of such disagreements over almost each and every aspect of the appointment protocol, starting with the composition and powers of the recommendatory bodies and spilling into almost every part of the process for making judicial appointments, how do we find a way forward ? Where the Gordian knot of composition and procedural detail remains to be unraveled, we can perhaps focus on the one process which skirts the existing controversies, and that is continuous Apex Court monitoring across the whole gamut of the efforts for ensuring timely judicial appointments. The Apex Court may perhaps be best suited for this overall through the constitution of a permanent bench for the purpose. Just as we have examples of the higher courts monitoring essential and sensitive governmental functions such as prison administration and reforms over an extended period using the services of amicus curiae where deemed necessary, only a continuous monitoring of what is innately a constantly recurring problem can perhaps bring about a greater sense of transparency and urgency in the process. Where such monitoring confines itself to following up on expressly articulated and established current statute and rules, its very existence may open the doors to more widespread lay scrutiny from the general public. In the end, that is perhaps the greatest assurance of its success.

THE VIEWS EXPRESSED BY THE AUTHOR ARE PERSONAL

Anirban Mukhopadhaya, Retd. IAS officer