Collegium System Deadlock: High Court Judicial Vacancies Hit 30% as 90 Recommendations Wait on the Government

NEW DELHI — Nearly a third of the judgeships in India's High Courts are empty, and the pipeline that is supposed to fill them has stalled where it most often does: between the recommendation of a name by a High Court collegium and the Union government's decision to send it on. Law Ministry figures placed before Parliament show more than 330 vacancies against a sanctioned strength of 1,122, with 90 recommendations pending with the government for more than six months and a further set returned to the Supreme Court collegium for reconsideration.

"Every vacant chair is a thousand cases that will not be heard this year," a former Chief Justice of a High Court told The Counsel.

How the collegium system works

Articles 124 and 217 of the Constitution provide for judges to be appointed by the President after consultation with the Chief Justice of India and, for High Courts, the Governor and the Chief Justice of the High Court. In the Second Judges case, Supreme Court Advocates-on-Record Association v. Union of India (1993), the Supreme Court read "consultation" as giving primacy to the judiciary's view, expressed through a collegium of senior judges, and the Third Judges case (1998) settled the collegium's composition. For High Court appointments the chain runs:

1. The High Court collegium — the Chief Justice and two senior-most judges — recommends names from the bar and the district judiciary.
2. The state government and the Governor forward their views to the Union Law Ministry.
3. The Law Ministry obtains a report from the Intelligence Bureau and forwards the file to the Supreme Court collegium — the Chief Justice of India and the two senior-most judges.
4. The collegium approves, defers or rejects. Approved names go through the Law Minister and the Prime Minister to the President for the warrant of appointment.
5. The government may return a name once with reasons. A name the collegium reiterates binds the government.

The Memorandum of Procedure of 1998 records these steps. A revised memorandum, directed by the court after it struck down the National Judicial Appointments Commission in 2015, has been in draft since 2016; the government and the collegium have never agreed its terms, and the dispute over a proposed national security veto remains open.

Where the files stop

Stage	Timeline in PLR Projects (2021)	What the data show
Intelligence Bureau report	Four to six weeks	Frequently four to eight months
Government forwards file to Supreme Court collegium	Eight to twelve weeks from recommendation	Ninety files pending beyond six months
Appointment after collegium approval or reiteration	Three to four weeks	Reiterated names have waited over a year; some candidates withdrew

The Supreme Court laid down the timeline in PLR Projects v. Mahanadi Coalfields in April 2021 while hearing a matter on vacancies, and has since monitored compliance in contempt-style hearings, calling for data from the Law Ministry and, on occasion, naming the files. The government's position is that it is not bound to act on a first recommendation and that its scrutiny is part of the constitutional scheme; the court's position is that scrutiny has a timeline and reiteration has a consequence.

Why it matters

The arithmetic is unforgiving. High Courts carry more than sixty lakh pending cases; a bench that disposes of two thousand matters a year, left empty, adds that number to the backlog. Several High Courts have been working at between 55 and 65 per cent of sanctioned strength, with the shortfall concentrated in the largest — Allahabad, Punjab and Haryana, Calcutta and Bombay. Vacancies also distort the courts that remain: judges hearing both civil and criminal rosters, division benches constituted from two judges with no overlapping expertise, and a shrinking pool from which Chief Justices and Supreme Court judges are drawn.

Every vacant chair is a thousand cases that will not be heard this year.

A former High Court Chief Justice, to The Counsel

The proposals on the table

• A revised memorandum. Both sides say they want one; neither has moved on the security veto. The collegium's own practice has changed in the meantime — resolutions are published with reasons, candidates are interviewed, and the Intelligence Bureau's inputs are recorded — without a document to anchor it.
• Advance recommendations. The memorandum requires High Courts to recommend names six months before a vacancy arises. Compliance is patchy; several High Courts have recommended no names for years at a time.
• A larger pool. The district judiciary supplies a third of High Court judges but has its own vacancies, and the bar's best candidates increasingly decline, citing pay, the long wait and the uncertainty of the process.
• A statutory timeline. Proposals to legislate the PLR Projects timeline, with a deemed-forwarding rule if the government does not act, have been floated in Parliament's standing committee but not taken up by the government.

Timeline

• 1993 — Second Judges case establishes the collegium's primacy.
• 1998 — Third Judges case settles the collegium's composition; Memorandum of Procedure agreed.
• 2015 — National Judicial Appointments Commission struck down; revised memorandum directed.
• 2021 — PLR Projects: timelines laid down for each stage.
• 2026 — Vacancies near 30 per cent; 90 recommendations pending beyond six months.

The Counsel will report the Supreme Court's next hearing on vacancies and the Law Ministry's figures as they are updated.

This report is for general information only and does not constitute legal advice. Readers should consult a qualified lawyer about their own circumstances. Case citations are to The Counsel Reports (TCR) unless otherwise stated.