Natural & Desirable Tension

Address by Hon'ble Shri K.G. Balakrishnan, Chief Justice of India, at thejoint conference of Chief Ministers and Chief Justices at Vigyan Bhawan on April8, 2007

The founding fathers of our constitution placed "justice" at thehighest pedestal and the Preamble to our constitutionsignificantly noted justice higher than the other principles, i.e.liberty, equality and fraternity. Again, the Preamble clearlydemonstrates the precedence to social and economic justice overpolitical justice. People turn to the judiciary in quest of justice.The constitution lays down the structure and defines delimits anddemarcates the role and function of every organ of the Stateincluding the judiciary and establishes norms for their interrelationships, checks and balances. Independence of judiciary isessential to the rule of law.

It is quite universally agreed that the institution of judicial reviewis a unique contribution made by the American jurisprudence tothe art of government. This extraordinary legal invention hasconstituted that feature of the Federal Constitution. Judicialreview seems deceptively simple, but it is one of the mostbaffling of legal devices. Sometimes it is described mistakenly asa "veto" power over legislation. The constitutional validity oflegislation, as well as of executive acts, is decided solely as anincident of litigation between individual litigants ascertainingspecific rights. The process of constitutional interpretation is thusan integral part of the ordinary legal process, controlled byprecedent and standards of judicial objectivity and propriety,although actually constitutional questions usually raise explosivepolitical issues.

The application of judicial review to determine constitutionality ofthe legislation and to review the executive decision sometimescreates tension between the judge and the legislative andexecutive branch. Such tension is natural and to some extentdesirable. The principle of separation of powers are kept in theforefront and the judge should make sure that each of the otherbranches operates within the boundaries of the law and thejudicial review of the constitutionality of legislation and ofadministrative actions realizes democracy.

The Indian judiciary with the Supreme Court and 21 High Courtsin the State exercise large powers and the size of the Indianjudiciary in a vast country of more than a billion inhabitants isnext only to that of USA. The superior judiciary not only decidecivil and criminal cases but the judicial review safeguards civiland political rights of individuals and sometimes define andcontrol the powers of every organ of the State.

The function of the Supreme Court is of vital importance and it isthe anchor which holds us to the constitutional Government --  ever watchful guardians of the liberty of the people againsttransgression by legislative or executive action. The balancewheel holding it in equipoise reflects the true relationship of thevarious parts of the complex system. We are deeply concernedwith the great responsibility devolving upon the courts. Ofcourse, the judicial review of legislative and administrativeactions has given right to some criticism of the way in which thecourts are functioning. The words of Prof. H.P. Lee of MonashUniversity are apt to be remembered at this juncture. I quote: 

"Scurrilous abuse of particular members of the judiciary orattacks which question the integrity of judicial institutionsundermine public confidence in the courts and acceptance of theirdecisions. This is not to suggest that courts should be immunefrom criticism. On the contrary, the judgments of the courtsshould be scrutinized and critically evaluated. But those whohold positions of power and influence in the country have aresponsibility to ensure that the line between measured criticismof judgments of denigration of judges is not traversed.Constitutionalism is not enhanced by hostility directed against thejudiciary which plays such a pivotal role in maintaining the rule oflaw."

It is essential in a country governed by a rule of law that everydecision must be made under the rule of law. Like any otherpublic institution, the judiciary can be subjected to fair criticism ifand when occasion demands but if the criticism is legitimate andirresponsible, it may leave to incalculable damage to theinstitution of the judiciary.

It is a matter of satisfaction that the public at large continues tohold our judicial institution in high esteem despite theshortcomings. We are aware of the great responsibility bestowedon us. In the words of Dr. Cyrus Das,

"Justice is a consumer product and must therefore meet the testof confidence, reliability and dependability like any other productif it is to survive market scrutiny. It exists for the citizenry "atwhose service only the system of justice must work". Judicialresponsibility, accountability and independence are in everysense inseparable. They are, and must be, embodied in theinstitution of the judiciary."

The experience of the Indian judiciary for the last more than halfyear century shows how inseparable the struggle for judicialresponsibility, accountability and independence has been.Yet, there are serious concerns about the efficacy and ability ofjustice delivery system to dispense a speedy and affordablejustice. Questions on the credibility of judiciary are being raiseddue to mounting arrears of cases, delays in disposal and highcost of obtaining justice. The growing population, increasingawareness of rights and abiding confidence of the people in thejudiciary saw a litigation boom which our judicial set up was notsufficiently equipped to handle. With the enactment of largenumber of laws, the volume of work in courts has increasedenormously without any increase let alone corresponding increasein the strength of Judges at all levels. People have become moreand more aware of their rights and are no longer willing tosubmit to arbitrariness anywhere. The natural fall out was anoverburdened system, too choked to be able to provideexpeditious or inexpensive justice. We can rightly take pride forthe quality and effectiveness of our judicial system. Yet, wecannot deny that it suffers from serious deficiencies, requiringimmediate steps to improve its performance, so as to renderprompt and inexpensive service to its consumers.

When we talk of delay in the context of justice it denotes thetime consumed in the disposal of case, in excess of the timewithin which a case can be reasonably expected to be decided bythe Court. An expected life span of a case is an inherent part ofthe system. No one expects a case to be decided overnight.However, difficulty arises when the actual time taken for disposalof the case far exceeds its expected life span and that is when wesay there is delay in dispensation of justice. Delay in disposal ofcases not only creates disillusionment amongst the litigants, butalso undermines the vary capability of the system to impartjustice in an efficient and effective manner. Long delay also hasthe effect of defeating justice in quite a number of cases.The problem is much more acute in criminal cases, as comparedto civil cases. Speedy trial of a criminal case considered to be anessential feature of right of a fair trial has remained a distantreality. A procedure which does not provide trial and disposalwithin a reasonable period cannot be said to be just, fair andreasonable. If the accused is acquitted after a long delay, one canimagine the unnecessary suffering he was subjected to. Manytimes, inordinate delay contributes to acquittal of guilty personseither because the evidence is lost or because of lapse of time, orthe witnesses do not remember all the details or do not comeforward to give true evidence due to threats, inducement orsympathy. Whatever may be the reason, it is justice thatbecomes a casualty.

The Courts do not possess a magic wand which they can waive towipe out the huge pendency of cases nor can they afford toignore the instances of injustices and illegalities only because ofthe huge arrears of the cases already pending with them. If thecourts start doing that, it would be endangering the credibility ofthe Courts and the tremendous confidence they still enjoy fromthe common man. It is high time we make a scientific andrational analysis of the factors behind accumulation of arrearsand devise specific plan to atleast bring them within acceptablelimit, within a reasonable timeframe. There are volumes of LawCommission Recommendations, Expert Committee Reports andOpinions of Jurists, highlighting the problem and suggesting waysand means. The need of the hour is to act upon thosesuggestions swiftly and decisively.

The real problem is that the institution of cases in the Courts farexceeds their disposal. Though there is a considerable increasein the disposal of cases in various courts, the institution hasincreased more rapidly.

High Courts increased their annual disposal from 980474 cases inthe year 1999 to 1450602 cases in the year 2006, the cumulativeincrease being 48% in seven years, without there beingcommensurate increase in the strength of judges. However, theinstitution increased from 1122430 cases in the year 1999 to1589979 cases in the year 2006 leading to increase in pendencyfrom 2757806 cases as on 31st December, 1999 to 3654853cases as on 31st December, 2006.

Subordinate Courts disposed of 15842438 cases in the year 2006as against 12394760 cases in the year 1999, thereby, increasingthe disposal by 28% in seven years without any substantialincrease in the strength of Judges. However, the institutionincreased from 12731275 cases in the year 1999 to 15642129cases in the year 2006, resulting in the pendency gettingincreased from 20498400 cases as on 31st December, 1999 to24872198 cases as on 31st December, 2006

The average disposal per Judge comes to 2374 cases in HighCourts and 1346 cases in Subordinate Courts if calculated on thebasis of disposal in the year 2006 and working strength of Judgesas on 31st December, 2006. Applying this average, we require1539 High Court Judges and 18479 Subordinate Judges to clearthe backlog in one year. The requirement would come down to770 more High Court Judges and 9239 more Subordinate Judgesif the arrears alone have to be cleared in the next two years. Theexisting strength being inadequate, even to dispose of the actualinstitution, the backlog cannot be wiped out without additionalstrength, particularly, when the institution is likely to increaseand not come down in the coming years.

Several statutes like Indian Penal Code, Code of Civil Procedure,Code of Criminal Procedure, Transfer of Property Act, ContractAct, Sale of Goods Act, Negotiable Instruments Act etc., whichcontribute to more than 50% to 60% of the litigation in the trialCourts are central enactments, referable to List I or List III andthese laws are administered by the Courts established by theState Governments. The number of Central laws which createrights and offences to be adjudicated in the subordinate Courtsare about 340. It is obvious that the central Government mustestablish Courts at the trial level and appellate level and makebudgetary allocation to the States to establish these courts to cutdown backlog of cases arising out of these central statutes. Thecentral Government must estimate and pay for the recurring andnon-recurring expenditure of the State Courts to the extent theCourts spend time to adjudicate disputes arising out of centralstatutes. Article 247 of the Constitution enables UnionGovernment to establish additional courts for betteradministration of laws made by Parliament or of any existing lawwith respect to a matter enumerated in the Union List. ThisArticle is specially intended to establish courts to enableparliamentary laws to be adjudicated upon by subordinate courtsbut has not been resorted to so far.

Almost every statue made by the Parliament or StateLegislatures, creates rights and offences which go foradjudication before the trial and appellate Courts. Every Bill inParliament or State Legislature does have a FinancialMemorandum attached to it and the Memorandum mentions theallocations required from the Consolidated Fund of theUnion/State but it confines itself to the expenditure foradministrative purposes. The judicial impact of legislation on theCourts is not being assessed in India as is done in the UnitedStates where, there is a special statute for this purpose.Whenever a new legislation is passed it should be accompaniedby a budgetary estimate of its impact and necessary financialallocation should be made in the Bill itself, to meet theexpenditure likely to be incurred on setting up additional courtsrequired to deal with increase in workload and providinginfrastructure for them.

So far backlog in subordinate courts is concerned, additionalcourts must be created and additional judicial officers must beappointed till the backlog is cleared. Ad hoc Judges under Article224A of the Constitution should be appointed to clear the backlogin the High Courts for a period of five years or till the backlog iscleared. All the cases which are pending in the High Court for twoyears or more can be allocated to these ad hoc judges. Since theannual institution in High Courts as well as in subordinate courtsexceeds their respective annual disposal, additional judges inHigh Courts as well as in subordinate courts should be appointedon permanent basis to deal with the increase in institution overthe disposal.

The Law Commission in its 120th report submitted in 1987examined the problem of understaffing of judiciary andrecommended 50 Judges per million of population instead of10.5. The present requirement of number of judges is muchgreater, looking to the spate of litigation, population explosionand other factors. The inadequate judge strength is a majorcause of delay in disposal of cases. Thus, the main cause forjudicial delay lies not so much with the judiciary as with theexecutive and administrative wing of the government.Sanctioned strength of the High Courts was 725 and workingstrength was 597 as on 1st March, 2007 leaving 128 vacancies.Sanctioned strength of Subordinate Judges was 14477 andworking strength 11767, leaving 2710 vacancies as on 31stDecember, 2006. Besides increasing number of Judges in aphased manner, at all levels, as a first step, it is absolutelyimperative to fill existing vacancies at all levels in the shortestpossible period. We have to develop zero vacancy or nearly zerovacancy culture.

Increase in the number of Judicial Officers will have to beaccompanied by proportionate increase in the number of courtrooms. The existing court buildings are grossly inadequate tomeet even the existing requirements and their conditionparticularly in small towns and moffusils is pathetic. A visit toone of these Courts would reveal the space constraints beingfaced by them, over-crowding of lawyers and litigants, lack ofbasic amenities such as regular water and electric supply and theunhygienic and insanitary conditions prevailing therein.The National Commission to review the working of theConstitution noted that judicial administration in the Countrysuffers from deficiencies due to lack of proper planned andadequate financial support for establishing more Courts andproviding them with adequate infrastructure. It is, therefore,necessary to phase out the old and out-dated court buildings,replace them by standardized modern court buildings coupledwith addition of more court rooms to the existing buildings andmore court complexes.

As per the information collected by First National Judicial PayCommission, every state except Delhi has been providing lessthan 1% of the budget for subordinate judiciary whereas thefigure is 1.03% in case of Delhi. During 10th Plan (2002-2007)Rs.700 crores have been allocated for priority demands ofjudiciary which is 0.078% of the total plan outlay. Such meagerallocations are grossly inadequate to meet the requirements ofjudiciary. The Government should, therefore, place adequatefunds at the disposal of the High Courts for augmenting theinfrastructure.

Establishment of additional courts involves enormous expenditurecapital as well as recurring. If the courts can function in twoshifts with the same infrastructure such as court buildings,furniture, library etc. utilizing the services of retired judicialofficers, who are physically and mentally fit and are reputed fortheir integrity and ability, that would ease the situationconsiderably and accumulated arrears can be reduced, quicklyand smoothly. In state of Gujarat Evening Courts have alreadystarted functioning since 14th November, 2006. Presently thereare 60 such Courts and they have disposed of 57422 casesbetween 14th November 2006 and 31st March, 2007.The edifice of the administration of justice rests on the shoulderof the District Judiciary, as the majority of the litigants go only upto the district level. The High Courts have the power ofsuperintendence over the judiciary but they do not have anyfinancial or administrative power to create even one post of asubordinate judge or of the subordinate staff, nor can it acquireor purchase any land or building for courts, or decide andimplement any plan for modernization for court working. ChiefJustices and their companion judges of the High Courts are thebest persons to know the requirement of the judiciary in theirrespective states. Their assessment and demand should receiveproper consideration and should not be "rejected" on account ofmere financial constraints. They need to be given financial andadministrative power vis-à-vis state judiciary to enable them tofunction effectively.

On the recommendations of 11th Finance Commission Fast TrackCourts of Sessions Judges were set-up for disposal of longpending sessions and other cases. These courts have been quitesuccessful in reducing the arrears. Most of the criminal cases inSubordinate Courts are pending at the level of Magistrates.16677657 criminal cases were pending before Magisterial Courtsas on 31st December, 2006. Keeping in view the performance ofFast Track Courts of Session Judges, Government of India shouldformulate a similar scheme for setting-up Fast Track Courts ofMagistrates in each State, as recommended by the previousConference of Chief Ministers and Chief Justices held on 11thMarch, 2006.

The pendency of Civil cases in Subordinate Courts has increasedfrom 6925913 cases as on 31st December, 2000 to 7237495cases as on 31st December, 2006.