Senior counsel must serve bench

Judicial vacancies will always be a headache in this country as long as senior lawyers are queasy about crossing over from the bar to the bench.

Being a practicing advocate has its advantages: One is free to take up cases one likes, there's more money to be made, not to speak of the freedom from reading monotonous briefs and leading a secluded private life.

Law Minister Ravi Shankar Prasad is perhaps one of those acutely conscious of the need to fill up judicial vacancies to clear pendencies and arrears that have of late eroded public confidence in the institution.

On July 11, he told the Rajya Sabha that he had written five letters to Chief Justice of India Justice R.M. Lodha to fill vacancies in the high courts.

His push coincides with Prime Minister Narendra Modi's focus on "minimum government maximum governance", which goes without saying, needs a robust justice delivery system.

However, such epistolary flourishes may not help if lawyers are loathe to cross over.

As of today, the sanctioned strength of the high courts is 906 judges - against a strength of just 640 judges and a staggering 266 vacancies. That means the high courts are functioning at 64 percent of their sanctioned strength. Pendency as on September 30, 2013, stood at 45,89,920 cases (Supreme Court - Court News, October-December 2013).

These are existing vacancies and not Prasad's proposed 20 percent hike in the existing strength of high courts that will add another 181 judges, taking the strength to 1,086.

If Justice Lodha has to get rid of the 266 vacancies, he must get that many competent legal minds of impeccable integrity who are willing to make the logical transition from the bar to the bench.

Besides being lawyers of capability and redoubtable integrity, they must have served as judicial officers for ten years or practised as a lawyer in a high court for ten years - a constitutional requirement.

Besides these, the qualifications outlined by the current Finance Minister Arun Jaitley - himself an eminent lawyer - as Leader of Opposition in Rajya Sabha on August 18, 2011, in a debate on a motion to impeach Justice Soumitra Sen of the Kolkata High Court (who has since resigned) too have to be factored in.

Slamming the existing collegium system of judges of appointing judges as short on criteria and akin to the "sharing of spoils" system in a -residential system of government wherein the best were unwilling to become judges, Jaitley outlined the threshold "objective" criteria for appointment of judges.

"What is your academic qualification? How bright were you during your academic days? What is your experience as a lawyer? If you are a judge, how many judgments have you written? How many have been set aside? How many have been upheld? How many juniors have you trained? How many cases have you argued? How many cases have been reported which you have argued? Have you got laws laid down? Have you written papers on legal subjects?"

One thing that was left unsaid and should perhaps be said after the Gopal Subramanium controversy: Recommended persons shouldn't be inconvenient to the government, otherwise their names are likely to be returned.

Another problem that both the CJI and the law minister are aware of is the dearth of talented people willing to shift base - possibly because it is far too lucrative to be a part of the lawyer community.

Justice Markandey Katju, a retired Supreme Court judge who now heads the Press Council of India, once said in court that there are three stages in an individual's legal career.

In the first stage "it is all work no money, second stage some work some money and in the third stage no work and all money." It is at the last stage that the senior lawyers have to be picked for judgeship and the hesitation is obvious.

In other counties, like in Britain, the Queen's Counsel (equivalent to senior advocate here) is mandated to serve on the bench for a fixed period and just can't refuse. This practice is laudable and must be replicated in India and every lawyer upon being designated as a senior must at some stage devote a few years of his legal career to the bench.

This practice would not only address the question of the judiciary finding competent people to dispense justice - like Justice Rohinton Fali Nariman - but will develop appreciation of many a problems that judges face.

CJI Lodha said on July 10 that if senior lawyers, even for a short time, take the onerous responsibility of sitting on the bench, they will understand the burden that judges shoulder.

If vacancies have to be filled up and the justice delivery mechanism galvanized, then writing letters to the chief justices of the high courts will not suffice.

It will require a gargantuan effort on part of the law minister and the CJI to get senior counsels to sit on the bench, rather than argue at the bar.