The Constitution of India puts the three organs of government at parity and demands a harmonious functioning of the Indian State. Yet the government has maintained a stance of presumed superiority, seizing on every opportunity to intervene in the operation of the judiciary. This is nowhere more visible than in the appointment of judges.
A mere delay in appointing a judge is equivalent to incarcerating the very victim who approached the courts for remedy. In other words, the judiciary loses its ability to function. A lapse in timely appointment makes the entire branch suffer, with repercussions felt by a population that looks to the courts, hope-filled, for justice.
The scale of the problem is stark. India's judiciary currently comprises 1,122 judges, yet pending cases have now crossed approximately 5,20,71,800, with a further 12,75,000 at the pre-litigation stage. Nearly 360 posts lie vacant at the High Court level alone, making swift resolution of this pendency a distant dream.
The question that follows is crucial: does the Supreme Court lack in timely recommendations, or has the Government at the Centre and in the States made it a priority to choke judicial efficiency, giving little thought to what the Courts have reiterated?
The Procedure
Article 124 of the Constitution provides for the appointment of judges to the Supreme Court, Article 217 for their appointment to the High Courts, and Article 222 for the transfer of judges between High Courts. Together, these form the fulcrum of the relationship between the executive and the judiciary. Senior judicial appointments follow a rigorous process of recommendation, appointment, vacancy scrutiny and withdrawal, as the High Courts and Supreme Court weigh competing interests to strike a balance between names recommended by the bar and those from judicial service.
After years of tenacious practice, the bar's names go, in consonance with the Collegium's decision, before the central government as a thoughtfully curated list, only for the appointment to be delayed by the government's own untimely response. High Courts are traditionally required to inform of any vacancy six months in advance. Once that has been done, the resulting loopholes in appointment lie squarely with the government.
The Pattern
The pattern shows up case after case. By resolution dated October 17, 2023, the SC Collegium recommended 5 advocates for elevation as judges of the Punjab and Haryana High Court. By notification dated November 12, 2023, the government appointed only 3 after a delay of 16 months. The remaining 2 were appointed on February 12, 2025. A second instance occurred in the Delhi High Court, where the SC Collegium recommended 3 advocates by resolution dated August 21, 2024. The government appointed 2 by notification dated January 6, 2025, leaving out Shwetashree Majumdar's recommendation. She ultimately chose to withdraw her consent in July 2025.
A third instance occurred in the Rajasthan High Court, where the SC Collegium, by resolution dated March 5, 2025, recommended 7 advocates. By notification dated March 26, 2025, the government appointed 4 judges; on July 22, 2025, Sandeep Taneja and Baljinder Singh Sandhu were also appointed, leaving Sheetal Mirdha as the sole recommendation still pending.
A fourth instance is that of the Patna High Court, where the SC Collegium recommended 5 advocates on February 20, 2025. The Central Government, by notification dated March 7, 2025, appointed 3; Ritesh Kumar and Anshul Raj were omitted with no reason stated, and were appointed separately in January 2026.
One such instance might have been an exception, but multiple instances have made the government appear lackadaisical and over-indulgent in the exercise of its power.
Historical Precedents
This is not new. The executive's effort to overpower the judiciary has never been entirely invisible to the public eye. In 1973, A.N. Ray was appointed Chief Justice by superseding three senior judges, a day after the Kesavananda Bharati judgment was pronounced - a moment that highlighted how even the judiciary functions at the whim of the executive. It became apparent again in January 1977, when Justice Beg was appointed Chief Justice over Justice Khanna, a stark reminder that Khanna's dissent in the ADM Jabalpur matter, decided the previous year, had cost him the position.
The same pattern persists today: judges recommended for various High Courts fall victim to the executive's practice of unilaterally segregating the Collegium's recommendations - accepting some names while withholding others. This practice is illegal as it places the Collegium's recommendation entirely at the executive's disposal, with no reasonable grounds given either for the delay in clearing appointments or for the segregation itself.
Judiciary Takes Note
The judiciary itself has taken note. Retired Justice Sanjay Kishan Kaul has voiced concern over the influx of vacancies in the judiciary, and flagged the pendency of transfer matters as a cause of grave concern. Those recommended by the bar ultimately fall prey to "selective appointments" but are never conveyed the reasons their recommendations were not processed, nor the cause of the delays.
This loophole, in the aftermath of the NJAC's scrapping, has become a way for the executive to control the judicial branch. In The Advocates Association Bengaluru v. Barun Mitra & Anr., the Supreme Court remarked that once the government's reservations have been addressed by the Collegium and the recommendation reiterated a second time, the appointment has to follow; keeping names pending thereafter is not acceptable. As the Court put it: "We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened." The bench of Justice Kaul and Justice Oka has flagged this breach on several occasions.
The Way Forward
Some tussle between the Executive and the Judiciary will, to some extent, always persist in a democracy. But the current scale of pending litigation is overwhelming and must be addressed at the earliest. It's time the country realised that the clutches of the executive must be relaxed, and that repeated intervention does more harm than good.
Concealing grounds, repeated delays, and the cycle of withdrawal and re-filing will all become aggravating factors in the system's structural collapse, unless the practice is monitored. What this moment calls for is a genuine distribution of power between the two organs, rather than the hoarding of control in one over-saturated organ of the state. Unless the Bench is filled by competent lawyers, the very concept of the Rule of Law and justice suffers. Reducing India's pendency begins with filling its Benches competently, and without further delay.