V ESHWAR ANAND IN THE TRIBUNE CHANDIGARH
THE judiciary is passing through a bad patch for various reasons. The backlog of cases has been increasing every year. There are over three crore cases pending in the courts of which 2.5 crore are in subordinate courts, 40 lakh in High Courts and 52,000 in the Supreme Court. There are volumes of recommendations on how to tackle the problem. The need of the hour is to act upon them swiftly and decisively.
Unfortunately, the institution of cases in the courts far exceeds their disposal. There is considerable increase in the disposal of cases, but the institution has increased more rapidly. The existing strength of subordinate judges being inadequate, even to dispose of the actual institution, the backlog cannot be wiped out without additional strength.
Several statutes like the Indian Penal Code, the Criminal Procedure Code, the Transfer of Property Act, the Contract Act, the Sale of Goods Act, the Negotiable Instruments Act, which contribute to 60 per cent of the litigation in the trial courts, are Central enactments and these laws are administered by the courts established by the state governments.
The number of Central laws which create rights and offences to be adjudicated in the subordinate courts are above 340. Obviously, the Centre must establish courts at the trial and appellate level and make budgetary allocation to the states to help reduce the backlog arising out of these Central statutes.
The Centre must estimate and pay for the recurring and non-recurring expenditure of the state courts to the extent the courts spend time on adjudicating disputes arising out of Central statutes. Article 247 of the Constitution is intended to establish courts to enable parliamentary laws to be adjudicated upon by subordinate courts but has not been resorted to.
Almost every statute made by Parliament or State legislatures, creates rights and offences which go for adjudication before the trial and appellate courts. Every Bill in Parliament or State Legislature does have a Financial Memorandum attached to it and the Memorandum mentions the allocations required from the Consolidated Fund of the Union/state but it confines itself to the expenditure for administrative purposes.
Unfortunately, unlike in the US, the judicial impact of legislation on the court is not being assessed in India. In the US, there is a special statute for the purpose. Whenever a new legislation is passed, it should be accompanied by a budgetary estimate of its impact and necessary financial allocation should be made in the Bill itself, to meet the expenditure likely to be incurred on setting up additional courts required to deal with the increase in the workload and providing infrastructure for them.
In its 120th report (1987), the Law Commission examined the problem of understaffing and recommended 50 judges per million of population instead of 10.5. The present requirement of judges is much greater, looking at the spate of litigation, population explosion and other factors. When will we develop a zero vacancy culture? The judges’ increase should be accompanied by proportionate increase in the courtrooms. The court buildings are grossly inadequate, particularly in small towns.
The High Courts have the power of superintendence over the judiciary but they don’t have financial or administrative power to create even one post of a subordinate judge or of the subordinate staff, nor can they acquire or purchase any land or building for courts or decide and implement any plan for modernisation of the courts.
The Centre should implement the proposals for adequate staff and infrastructure made by Chief Justices of High Courts. The IAS babus should not peremptorily reject them on account of financial constraints. The Chief Justices should be given financial and administrative powers vis-à-vis the state judiciary.
Arrears in the subordinate courts have been on the rise. Why not transfer some cases from civil courts to fast track courts? During an interaction with this writer in Chandigarh recently, the civil judges and chief judicial magistrates of Punjab, Haryana and Chandigarh UT said that they are overburdened with work, having to dispose of over 150 to 200 cases everyday. They are forced to handle even revenue cases, hitherto handled by Tahsildars and other officers. The problem becomes acute when they handle inquest proceedings (each case takes two to three days).
There is an urgent need to reduce the civil judges’ workload. They are against contractual appointments and instead advocate increase of their regular cadre strength. They stress the need for Indian Judicial Service (IJS) on the lines of the IAS which, they feel, will attract talent to the subordinate judiciary and boost the judges’ career prospects immensely.
Chief Justice of India Justice S.M. Kapadia’s announcement of a three-member Bench of the Supreme Court to address the problems of subordinate courts is heartening. The Bench will sit every week to take up the problems state-wise. The Chief Secretaries of all states will be directed to provide facilities to judges and advocates.
Union Law Minister M. Veerappa Moily has also announced a National Arrears Grid (NAG), headed by a Supreme Court Judge, to help reduce the backlog in each court. Clearly, political will coupled with bureaucratic support has become imperative to achieve the National Legal Mission’s goal of making the Indian judiciary “world class and modern”.
Government, the biggest litigant
- Of the three crore cases pending, 2.5 crore are in subordinate courts, 40 lakh in High Courts and 52,000 in the Supreme Court.
- Statutes like the Indian Penal Code, the Criminal Procedure Code, the Transfer of Property Act, the Contract Act and the Negotiable Instruments Act contribute to 60 per cent of litigation in the trial courts.
- As in the US, we must have judicial impact of legislation on the courts. Every new legislation should be accompanied by a budgetary estimate of its impact and necessary financial allocation (made in the Bill itself) to meet the expenditure to be incurred on setting up additional courts.
- There is no end to litigation and/or appeals in our courts. In service matters, there is an impression that unless the officers/ employees go to the court, they will not get any benefit from the government. And when they get the benefits, the Centre (or the state) promptly appeals against the rulings even for paltry sums.
- In the UK, the Supreme Court hears only 55 appeals in a year. In the US, of the 5,000 petitions for leave to appeal every year, only 185 to 195 are admitted and the rest are rejected even without any oral hearing.
- There is an urgent need to reduce the civil judges’ workload by raising their present cadre strength and not by contractual appointments. In the Civil Procedure Code, many amendments were made in 2002 according to which a time is fixed for a particular task to be done in the court. The need of the hour is strict compliance of the time period fixed.