August 04, 2021
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Natural & Desirable Tension

'The application of judicial review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension between the judge and the legislative and executive branch. Such tension is natural and to some exten

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Natural & Desirable Tension
Natural & Desirable Tension

Address by Hon'ble Shri K.G. Balakrishnan, Chief Justice of India, at the joint conference of Chief Ministers and Chief Justices at Vigyan Bhawan on April 8, 2007

The founding fathers of our constitution placed "justice" at the highest pedestal and the Preamble to our constitution significantly noted justice higher than the other principles, i.e. liberty, equality and fraternity. Again, the Preamble clearly demonstrates the precedence to social and economic justice over political justice. People turn to the judiciary in quest of justice. The constitution lays down the structure and defines delimits and demarcates the role and function of every organ of the State including the judiciary and establishes norms for their inter relationships, checks and balances. Independence of judiciary is essential to the rule of law.

It is quite universally agreed that the institution of judicial review is a unique contribution made by the American jurisprudence to the art of government. This extraordinary legal invention has constituted that feature of the Federal Constitution. Judicial review seems deceptively simple, but it is one of the most baffling of legal devices. Sometimes it is described mistakenly as a "veto" power over legislation. The constitutional validity of legislation, as well as of executive acts, is decided solely as an incident of litigation between individual litigants ascertaining specific rights. The process of constitutional interpretation is thus an integral part of the ordinary legal process, controlled by precedent and standards of judicial objectivity and propriety, although actually constitutional questions usually raise explosive political issues.

The application of judicial review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension between the judge and the legislative and executive branch. Such tension is natural and to some extent desirable. The principle of separation of powers are kept in the forefront and the judge should make sure that each of the other branches operates within the boundaries of the law and the judicial review of the constitutionality of legislation and of administrative actions realizes democracy.

The Indian judiciary with the Supreme Court and 21 High Courts in the State exercise large powers and the size of the Indian judiciary in a vast country of more than a billion inhabitants is next only to that of USA. The superior judiciary not only decide civil and criminal cases but the judicial review safeguards civil and political rights of individuals and sometimes define and control the powers of every organ of the State.

The function of the Supreme Court is of vital importance and it is the anchor which holds us to the constitutional Government --  ever watchful guardians of the liberty of the people against transgression by legislative or executive action. The balance wheel holding it in equipoise reflects the true relationship of the various parts of the complex system. We are deeply concerned with the great responsibility devolving upon the courts. Of course, the judicial review of legislative and administrative actions has given right to some criticism of the way in which the courts are functioning. The words of Prof. H.P. Lee of Monash University are apt to be remembered at this juncture. I quote: 

"Scurrilous abuse of particular members of the judiciary or attacks which question the integrity of judicial institutions undermine public confidence in the courts and acceptance of their decisions. This is not to suggest that courts should be immune from criticism. On the contrary, the judgments of the courts should be scrutinized and critically evaluated. But those who hold positions of power and influence in the country have a responsibility to ensure that the line between measured criticism of judgments of denigration of judges is not traversed. Constitutionalism is not enhanced by hostility directed against the judiciary which plays such a pivotal role in maintaining the rule of law."

It is essential in a country governed by a rule of law that every decision must be made under the rule of law. Like any other public institution, the judiciary can be subjected to fair criticism if and when occasion demands but if the criticism is legitimate and irresponsible, it may leave to incalculable damage to the institution of the judiciary.

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

"Justice is a consumer product and must therefore meet the test of confidence, reliability and dependability like any other product if it is to survive market scrutiny. It exists for the citizenry "at whose service only the system of justice must work". Judicial responsibility, accountability and independence are in every sense inseparable. They are, and must be, embodied in the institution of the judiciary."

The experience of the Indian judiciary for the last more than half year century shows how inseparable the struggle for judicial responsibility, accountability and independence has been. Yet, there are serious concerns about the efficacy and ability of justice delivery system to dispense a speedy and affordable justice. Questions on the credibility of judiciary are being raised due to mounting arrears of cases, delays in disposal and high cost of obtaining justice. The growing population, increasing awareness of rights and abiding confidence of the people in the judiciary saw a litigation boom which our judicial set up was not sufficiently equipped to handle. With the enactment of large number of laws, the volume of work in courts has increased enormously without any increase let alone corresponding increase in the strength of Judges at all levels. People have become more and more aware of their rights and are no longer willing to submit to arbitrariness anywhere. The natural fall out was an overburdened system, too choked to be able to provide expeditious or inexpensive justice. We can rightly take pride for the quality and effectiveness of our judicial system. Yet, we cannot deny that it suffers from serious deficiencies, requiring immediate steps to improve its performance, so as to render prompt and inexpensive service to its consumers.

When we talk of delay in the context of justice it denotes the time consumed in the disposal of case, in excess of the time within which a case can be reasonably expected to be decided by the Court. An expected life span of a case is an inherent part of the system. No one expects a case to be decided overnight. However, difficulty arises when the actual time taken for disposal of the case far exceeds its expected life span and that is when we say there is delay in dispensation of justice. Delay in disposal of cases not only creates disillusionment amongst the litigants, but also undermines the vary capability of the system to impart justice in an efficient and effective manner. Long delay also has the effect of defeating justice in quite a number of cases. The problem is much more acute in criminal cases, as compared to civil cases. Speedy trial of a criminal case considered to be an essential feature of right of a fair trial has remained a distant reality. A procedure which does not provide trial and disposal within a reasonable period cannot be said to be just, fair and reasonable. If the accused is acquitted after a long delay, one can imagine the unnecessary suffering he was subjected to. Many times, inordinate delay contributes to acquittal of guilty persons either because the evidence is lost or because of lapse of time, or the witnesses do not remember all the details or do not come forward to give true evidence due to threats, inducement or sympathy. Whatever may be the reason, it is justice that becomes a casualty.

The Courts do not possess a magic wand which they can waive to wipe out the huge pendency of cases nor can they afford to ignore the instances of injustices and illegalities only because of the huge arrears of the cases already pending with them. If the courts start doing that, it would be endangering the credibility of the Courts and the tremendous confidence they still enjoy from the common man. It is high time we make a scientific and rational analysis of the factors behind accumulation of arrears and devise specific plan to atleast bring them within acceptable limit, within a reasonable timeframe. There are volumes of Law Commission Recommendations, Expert Committee Reports and Opinions of Jurists, highlighting the problem and suggesting ways and means. The need of the hour is to act upon those suggestions swiftly and decisively.

The real problem is that the institution of cases in the Courts far exceeds their disposal. Though there is a considerable increase in the disposal of cases in various courts, the institution has increased more rapidly.

High Courts increased their annual disposal from 980474 cases in the year 1999 to 1450602 cases in the year 2006, the cumulative increase being 48% in seven years, without there being commensurate increase in the strength of judges. However, the institution increased from 1122430 cases in the year 1999 to 1589979 cases in the year 2006 leading to increase in pendency from 2757806 cases as on 31st December, 1999 to 3654853 cases as on 31st December, 2006.

Subordinate Courts disposed of 15842438 cases in the year 2006 as against 12394760 cases in the year 1999, thereby, increasing the disposal by 28% in seven years without any substantial increase in the strength of Judges. However, the institution increased from 12731275 cases in the year 1999 to 15642129 cases in the year 2006, resulting in the pendency getting increased from 20498400 cases as on 31st December, 1999 to 24872198 cases as on 31st December, 2006

The average disposal per Judge comes to 2374 cases in High Courts and 1346 cases in Subordinate Courts if calculated on the basis of disposal in the year 2006 and working strength of Judges as on 31st December, 2006. Applying this average, we require 1539 High Court Judges and 18479 Subordinate Judges to clear the backlog in one year. The requirement would come down to 770 more High Court Judges and 9239 more Subordinate Judges if the arrears alone have to be cleared in the next two years. The existing strength being inadequate, even to dispose of the actual institution, the backlog cannot be wiped out without additional strength, particularly, when the institution is likely to increase and 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, Contract Act, Sale of Goods Act, Negotiable Instruments Act etc., which contribute to more than 50% to 60% of the litigation in the trial Courts are central enactments, referable to List I or List III 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 about 340. It is obvious that the central Government must establish Courts at the trial level and appellate level and make budgetary allocation to the States to establish these courts to cut down backlog of cases arising out of these central statutes. The central Government must estimate and pay for the recurring and non-recurring expenditure of the State Courts to the extent the Courts spend time to adjudicate disputes arising out of central statutes. Article 247 of the Constitution enables Union Government to establish additional courts for better administration of laws made by Parliament or of any existing law with respect to a matter enumerated in the Union List. This Article is specially intended to establish courts to enable parliamentary laws to be adjudicated upon by subordinate courts but has not been resorted to so far.

Almost every statue made by the 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. The judicial impact of legislation on the Courts is not being assessed in India as is done in the United States where, there is a special statute for this 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 increase in workload and providing infrastructure for them.

So far backlog in subordinate courts is concerned, additional courts must be created and additional judicial officers must be appointed till the backlog is cleared. Ad hoc Judges under Article 224A of the Constitution should be appointed to clear the backlog in the High Courts for a period of five years or till the backlog is cleared. All the cases which are pending in the High Court for two years or more can be allocated to these ad hoc judges. Since the annual institution in High Courts as well as in subordinate courts exceeds their respective annual disposal, additional judges in High Courts as well as in subordinate courts should be appointed on permanent basis to deal with the increase in institution over the disposal.

The Law Commission in its 120th report submitted in 1987 examined the problem of understaffing of judiciary and recommended 50 Judges per million of population instead of 10.5. The present requirement of number of judges is much greater, looking to the spate of litigation, population explosion and other factors. The inadequate judge strength is a major cause of delay in disposal of cases. Thus, the main cause for judicial delay lies not so much with the judiciary as with the executive and administrative wing of the government. Sanctioned strength of the High Courts was 725 and working strength was 597 as on 1st March, 2007 leaving 128 vacancies. Sanctioned strength of Subordinate Judges was 14477 and working strength 11767, leaving 2710 vacancies as on 31st December, 2006. Besides increasing number of Judges in a phased manner, at all levels, as a first step, it is absolutely imperative to fill existing vacancies at all levels in the shortest possible period. We have to develop zero vacancy or nearly zero vacancy culture.

Increase in the number of Judicial Officers will have to be accompanied by proportionate increase in the number of court rooms. The existing court buildings are grossly inadequate to meet even the existing requirements and their condition particularly in small towns and moffusils is pathetic. A visit to one of these Courts would reveal the space constraints being faced by them, over-crowding of lawyers and litigants, lack of basic amenities such as regular water and electric supply and the unhygienic and insanitary conditions prevailing therein. The National Commission to review the working of the Constitution noted that judicial administration in the Country suffers from deficiencies due to lack of proper planned and adequate financial support for establishing more Courts and providing 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 coupled with addition of more court rooms to the existing buildings and more court complexes.

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

Establishment of additional courts involves enormous expenditure capital as well as recurring. If the courts can function in two shifts with the same infrastructure such as court buildings, furniture, library etc. utilizing the services of retired judicial officers, who are physically and mentally fit and are reputed for their integrity and ability, that would ease the situation considerably and accumulated arrears can be reduced, quickly and smoothly. In state of Gujarat Evening Courts have already started functioning since 14th November, 2006. Presently there are 60 such Courts and they have disposed of 57422 cases between 14th November 2006 and 31st March, 2007. The edifice of the administration of justice rests on the shoulder of the District Judiciary, as the majority of the litigants go only up to the district level. The High Courts have the power of superintendence over the judiciary but they do not have any financial or administrative power to create even one post of a subordinate judge or of the subordinate staff, nor can it acquire or purchase any land or building for courts, or decide and implement any plan for modernization for court working. Chief Justices and their companion judges of the High Courts are the best persons to know the requirement of the judiciary in their respective states. Their assessment and demand should receive proper consideration and should not be "rejected" on account of mere financial constraints. They need to be given financial and administrative power vis-à-vis state judiciary to enable them to function effectively.

On the recommendations of 11th Finance Commission Fast Track Courts of Sessions Judges were set-up for disposal of long pending sessions and other cases. These courts have been quite successful in reducing the arrears. Most of the criminal cases in Subordinate Courts are pending at the level of Magistrates. 16677657 criminal cases were pending before Magisterial Courts as on 31st December, 2006. Keeping in view the performance of Fast Track Courts of Session Judges, Government of India should formulate a similar scheme for setting-up Fast Track Courts of Magistrates in each State, as recommended by the previous Conference of Chief Ministers and Chief Justices held on 11th March, 2006.

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

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