"Where are the judges:" Bar, Bench bemoan burgeoning vacancies in Bombay High Court

With nine impending retirements, one resignation and no new appointments so far in 2022, the Bombay High Court is facing acute shortage of judges.

The sentiment was reflected by Chief Justice (CJ) Dipankar Datta who on two separate occasions bemoaned in open court about the vacancy position in the chartered High Court and the strain of workload on other judges due to the same.

During the course of hearing a matter earlier this month, a lawyer sought urgent listing of a matter which was of public interest.

Chief Justice Datta declined the same pointing out that with a heavy board and fewer judges, it was getting difficult to accommodate too many matters on an urgent basis.

"Please understand predicament of the Bench. How many judges do we have now out of 94? Less than 60. Go back in history and find out if this High Court (has) had so less judges," the CJ said.

He reiterated it again this week while hearing a suo motu public interest litigation petition relating to pending criminal cases against MPs and MLAs on Friday.

Advocate General Ashutosh Kumbhakoni suggested that the matters wherein interim stay has been granted, could be listed for hearing before appropriate benches.

Reluctant to do so, CJ Datta lamented about the growing vacancies in the High Court.

"Where are the judges? Every month, every 15 days we are losing one of our colleagues (due to retirement)… Review meetings say “ask your judges to sit on Saturday” They are already overburdened, they have to sit till 7-8 pm everyday, on Saturdays. I cannot put more burden on my brother judges. Hopefully if something happens within the fortnight, then we will look into this issue. Till then nothing can be done", CJ said.

Eleven judges were lined up superannuation from the Bombay High Court when the year began. Out of these, two judges - Justices SP Tavade and SJ Kathawalla - retired this month. If no new appointments are made, the working strength of the High Court will come down from 57 to 46 by the end of this year, as against its sanctioned strength of 94 judges.

Bar and Bench spoke to a former judge of Bombay High Court and senior lawyers about their views on the issue.

Former judge, Justice VM Kanade said that shortage of judges has been a persistent problem over the last 30 years. He was of the opinion that it was the Chief Justice of the High Court who is supposed to proactively ensure that names of candidates for elevation to the High Court are sent to the Supreme Court Collegium.

He recounted an incident in 2011-12, when Justice Mohit Shah was Chief Justice of the High Court.

"This problem is not something new. In 2011-12, the High Court judges figures went down below to below 45. The then Chief Justice Mohit Shah then took initiative and ensured that more than 20 judges were appointed during his 5-year tenure," Justice Kanade said.

He, however, did point out that 11 judges retiring in a year would take the strength to below 50% and would add to the burden of the existing judges. He further admitted that the process of selecting judges was time-consuming.

"I was an acting CJ too. There is so much burden on the judges on the administrative side which requires deliberation. The present Chief Justice is new, he doesn't know the Bar and would be relying on his brother judges for their suggestions," Justice Kanade said.

He also highlighted how another former Chief Justice, MK Mukherjee had been successful in convincing lawyers with lucrative practices to come over to the Bench.

"Lawyers, especially senior lawyers are reluctant to join the Bench. Former CJI Sharad Bobde, Justices DY Chandrachud, AM Khanwilkar, and myself, we had such tremendous practice. But then the CJ at that time convinced us, along with Justices AB Sawant and RD Dhanuka, that it was our duty to give back to the society," he said.

Justice Kanade pointed out that in order to expedite the appointment process, they had recommended constituting a separate committee of two or three judges who would only limit themselves to selection and processing of names of potential judges.

Senior Advocate Rafiq Dada expressed concern about the pressure on the existing judges due to the vacancies.

"There is a acute shortage and this puts pressure on existing judges. They have many portfolios, they have different category of cases. They wake up every morning and they have to look up a different law," Dada said.

Due to the shortage of judges, it has become difficult for the Bar members to answer to their clients and explain to them why their cases were getting adjourned by fortnight.

The delay in appointment of judge also mean that the Court is losing out on good judges.

"Moreover, because of delay of 2-3 years between the names being suggested and cleared for appointment, the law practice of the concerned advocate may suffer, because they try to reduce clients since they could be a judge," Dada stated.

He opined that there ought to be a time frame to take a final decision as the appointments are often stuck in the bureaucratic files.

Dada also suggested that the delay in appointments could be because of two reasons - one being a handicap of the executive due to lesser manpower and second due to the approach of the executive towards the judiciary.

"We have a handicap on the executive side, because they have to look at appointment of judges of High Court and Supreme Court, so they need more manpower. We cannot have a system to break from within, how long do we have to wait till the system breaks?"

He also pointed out that there is a demand being raised for a bench of the Bombay High Court at Kolhapur.

"Bombay High Court with four benches is running itself thin. There is now a demand for a bench in Kolhapur (district) as well. How will they bring in judges there? What respect will people have if liberty of the citizens is held up? Dada asked.

Senior Advocate Yusuf Muchhala, who has over six decades of practice in the High Court, had some interesting insights too.

He recollected that there had been a time after the Second World War in 1945, when most of the English judges had been sent back to England for duty. During that period, the Bombay High Court permitted lawyers with a certain amount of experience to join the Bench for a temporary period of 2-3 years, Muchhala said. The rule of not permitting judges to not practice in subordinate courts post judgeship was also relaxed then, he added.

Having said so, Muchhala was of the opinion that not appointing judges in a timely manner despite rising vacancies, was baffling.

"In any case, what is the issue? You have the lists of retirements with you. When you know 'xyz' number of judges are retiring in 2022, why not commence appointments from 2020? What is the reason for such delay?" he mused.

President of the Bombay Bar Association, advocate Nitin Thakker said he never knew of a time when the sanctioned strength of judges of the High Court was achieved.

"Less than 50 percent strength, this shortage is acute. I urge the Government of India to clear pending recommendations of Collegium to fill up vacancies and urge the Collegium to immediately process further appointments. I don’t recollect that Bombay High Court has ever achieved sanctioned strength," Thakker said.

He added that with such shortage of judges, it was unfair to accuse the judiciary for pending cases.

"They want to accuse the judiciary of pending work. Each judge is required to work for 6 people," he said.

Thakker added that while the judiciary is working hard to ensure that they do justice to everyone, there was no support from the government.

"Quality of our judges is far superior than western judges. The way we churn out orders and judgments, we do justice to the poor and needy. When it comes to judiciary, we are doing the best we can. But wherever the government has to give support, they are lacking. Whichever be the ruling party, judiciary is the least concern of their concern. They never get priority", Thakker commented.

Counsel for Central and State governments declined comment.