Report No. 79

II. Increase in Judge Strength

3.6. Disposal less than institution.-

A close scrutiny of the figures reproduced above would show that the number of cases disposed of by the High Courts in the country as a whole was less than the number of cases instituted during the year 1977. This resulted-as it must-in further piling up of the huge backlog of arrears. Any scheme which aims at clearing of the backlog of arrears and eliminating delay in the disposal of cases must take into account the imperative need to achieve two objectives, namely: (i) the disposal of cases in the High Courts in the country must not be less than the institution during the year, and (ii) effective steps must be taken to reduce and lighten the heavy backlog of arrears.

To attain the above objectives, increase in the judge strength of the High Courts cannot be avoided. It has to be borne in mind that the disposal of cases, whether pending in the High Court or in any other court, needs the observance of certain procedural requirements. In the absence of such observance, any attempt to accelerate the disposal of cases would be only at the cost of rules of fair play and natural justice. Such an attempt would thus be substituting a much worse evil, compared with the evil manifested by delay in the disposal of cases. We are, therefore, opposed to attempts at expediting the disposal of cases at the cost of the requirements of fair play and substantial justice.

3.7. Recommendation as to Judge strength.-

Stress has also been laid quite often on the personality of judges. Although we agree that the personality of judges can make a substantial different in the quality and quantum of disposal, we must not lose sight of the fact that there is a limit up to which this factor can affect the totality of disposal. By and large, the solution for increasing disposal of cases, eliminating delays and clearing arrears lies in raising the judge strength of the High Courts. With this end in view, we recommend that the judge strength of the High Courts should be kept at that level as ensures-

(a) that the disposal in the year is not less than the institution,1 and

(b) also that one-quarter of the backlog of old cases may be cleared2 in a period of one year.

1. See para. 3.8, infra.

2. See para. 3.9, infra.

3.8. Fixation of permanent strength.-

So far as the permanent strength of each High Court is concerned, we are of the opinion that it should be fixed keeping in view the average institution during the preceding three years. As and when necessary, the permanent strength may be reviewed. The permanent strength would thus be in a position to cope with the fresh institution1 and prevent any further accumulation in the heavy backlog of cases.

1. Para. 3.7(a), infra.

3.9. Additional and ad hoc judges.-

As regards1 the clearance of arrears of old cases, it would plainly be not necessary to increase the permanent strength of the judges in a High Court on that account. For this purpose, we would necessarily have to take recourse to appointing additional judges and ad hoc judges.2

We have considered the alternative of appointing only additional judges for clearing the arrears but, on further reflection, we have arrived at the conclusion that it would not be advisable to have only additional judges for this purpose. The reason which has prevailed with us in arriving at this conclusion is the necessity of adhering to a rule that ordinarily, and, in the absence of any special reason, persons appointed additional judges from amongst the members of the Bar practising in court and the District Judges should not be sent back to the profession to practise in that court or reverted to their substantive post.

So far as the members of the Bar are concerned, it is, in our view, extremely undesirable to appoint them additional judges unless there is certainty of their being ultimately absorbed as permanent judges. Instances-though, fortunately, very few-have not been lacking of members of the Bar being appointed as additional judges and, after a spell of a year or two on the Bench, going back to the profession and practising in that very court. Such a practice is most undesirable. It is fraught with grave abuse and should not be countenanced. As regards the District Judges also, it seems desirable that the eventuality of their reversion to their substantive post should, as far as possible, be avoided.

Reversion to the post of district judge after a person has been a High Court judge is bound to create within him a feeling of discontent and frustration. The prospect of reversion is also likely to affect the approach and independence of such a judge when sitting in Division Bench with a senior judge. It is also plain that during the time a person functions as additional judge of the High Court, vacancies are bound to arise from time to time for the office of permanent judges, consequent upon the retirement of some of those judges. As and when such vacancies occur, additional judges can, in accordance with their seniority, be made to fill in the vacancies.

1. Para. 3.7(b), supra.

2. Para. 3.13, infra.

3.10. Filling of vacancies.-

As mentioned earlier,1 though the sanctioned judge strength of the High Courts in the country during the year 1977 was 352, only 287 judges on an average were in position. Like wise, in the year 1976, even though the sanctioned strength was 351, only 292 judges were in position. Leaving aside the judges who were entrusted with work outside their normal duties, the fact remains that the number of judges in position in both the years was less than the sanctioned strength. This disparity between the sanctioned strength and the number of judges in position was apparently due to the fact that vacancies in the posts were not filled in as soon as they occurred. It is our considered opinion that delay in filling in the vacancies is one of the major contributing factors responsible for the piling accumulation of arrears.

In our opinion, when a vacancy is expected to arise out of the retirement of a judge steps for filling in the vacancy should be initiated six months in advance. The date on which such a vacancy will normally arise is always known to the Chief Justice of the High Court and also to others concerned. It should be ensured that necessary formalities for the appointment of a Judge to fill the vacancy are completed by the date on which the vacancy occurs. As already mentioned,2 the total number of judges in position has as a result of certain step, increased to 345 as on 31st March, 1979, as against the sanctioned strength of 371.

1. Para. 3.5, supra.

2. Para. 3.5, supra.