We need distinguished jurists as judges

A critical aspect of a judicial system is the effective and timely delivery of justice. This can be achieved in the Indian judicial system only if the significant crisis of backlogs and vacancies is addressed urgently by both the judiciary and the government. Data as of January 1, 2025, show that 371 posts of the 1,122 posts sanctioned across the High Courts of the country remain vacant. The Allahabad High Court functions at only 50% of its total sanctioned strength. Naturally, this has a direct impact on the already alarming levels of backlog. As millions of people have to wait for a long time for justice, their faith in the judicial system is eroding. Although this has been a perennial issue, there are now about 60 lakh cases pending across all the High Courts, an astonishing number. To solve this, we need both immediate remedial steps and reformative measures.

While it is true that the pace of Collegium recommendations and the resulting appointments has picked up in the last couple of years, it has unfortunately not been able to match the number of retirements and ever-increasing number of filings. In turn, this has put enormous strain on the system, compelling judges to take on a higher caseload than feasible. This is likely to adversely impact both the time given to as well as the depth of engagement with a particular case. Therefore, a well-staffed judiciary functioning at near-total sanctioned strength is the need of the hour.

A game changer

In that context, Article 124(3)(c) and Article 217(2)(c), now repealed, of the Constitution become increasingly significant. These provisions allow for the appointment of individuals who, in the opinion of the President (read Collegium), are ‘distinguished jurists’, as judges of the Supreme Court and the High Courts. Unfortunately, Article 124(3)(c) remains unutilised and Article 217(2)(c) has been repealed without any stated reason. In other words, no jurist has been found to be distinguished enough to be appointed to these posts till date. Although it is a routine practice in jurisdictions across the globe to appoint jurists as judges, appointments to the High Courts and the Supreme Court in India have always been either from the Bar (practising advocates) or the judicial services.

At a time when the issue of vacancies and backlogs is stifling the system, introducing and invoking the provision to appoint ‘distinguished jurists’ to High Courts of the country can turn out to be a game changer. In fact, a similar idea was floated by Shri Shibban Lal Saxena but negatived by the Constituent Assembly on June 7, 1949, without any meaningful deliberation.

Involving the world of academia directly into the mainstream Indian judicial system can bring both immense benefits and challenges. A vast pool of specialised knowledge, research-based critical thinking, and expertise can provide unique insights and add a hitherto missing dimension to the judiciary’s understanding of complex socioeconomic and socio-legal cases. At the same time, the lack of courtroom experience, procedural knowledge, understanding of limits to exercising judicial power, and a certain degree of resistance among the status quoists within the institution are challenges that will need to be overcome as well.

An important message

A number of countries (such as the United States, Poland, Myanmar, Kenya, Thailand, Spain and Italy) that allow jurists or professors of law to be appointed to posts equivalent to that of a judge in the High Courts and/or the Supreme Court of India have vastly benefited from this practice. In India, where academia has expressed its legitimate concerns and grievances of not having been adequately nurtured or supported, re-introducing Article 217(2)(c) and appointing jurists or academics as judges of the High Courts would send across an important message. At the same time, with adequate training of procedural know-how and courtroom experience, the presence of our sharpest academic minds on the Bench would ensure that the judicial discourse is enriched and that judicial decision-making is further strengthened.

Granting an opportunity to distinguished academics to effectively engage with the complex problems of the contemporary legal world would lend a fresh perspective to the cause of justice. Such appointees would naturally serve as a bridge between academia and practice. This would lead to a synergistic interaction of legal research with the more nuanced and practical aspects of delivering justice.

Therefore, the need of the hour is to tide over the current crisis of increasing backlogs, and bridge the widening gap between the actual strength and the sanctioned strength of courts. First, the government must comply with the Collegium’s recommendations within a strict time frame. Second, deploying innovating solutions, such as re-introducing and invoking Article 217(2)(c) to appoint distinguished jurists to High Courts, would help fill existing vacancies. Tapping into the academic world as a valuable resource sector would help ensure that the Indian judicial system remains dynamic, robust, and diverse, grounded in practical realities as well as an in-depth understanding of its underlying constitutional principles. By drawing upon the expertise of our sharpest academic minds, India will be able to address the existing concerns and enhance the quality of the judiciary’s output. Such a step could prove to be transformative for the Indian judiciary in the years to come.

Kumar Ritwik is a Delhi-based Advocate, currently serving as a Law Clerk in the Supreme Court of India