Report No. 124

Appendix II

(Paras 3.6 and 3.24)

D. 0. N. 3/Chmn/88-L.C.

January 19, 1988

Dear Justices Pathak,

Government of India resolved to set up a Commission, to be styled as Judicial Reforms Commission, for indepth study of the present justice delivery system, its short-comings and infirmities and to recommend radical reforms in the same to make the system effective and resilient to meet the contemporary needs of the society. It had drawn up its terms of reference.

In February 1986, the task of studying and recommending judicial reforms was assigned to the present Law Commission keeping in view the terms of reference drawn up by the Government of India, a copy of the same for convenience of reference is annexed to this letter. The Law Commission was requested to accord high priority to this new assignment. Accordingly, the Law Commission concentrated its attention on this assignment.

Since the reference, the Law Commission has submitted ten reports, the list of which is annexed to this letter for ready reference.

The Law Commission in its plan of work has reached the stage where it would undertake indepth examination of the problem of backlog in the High Courts and the Supreme Court of India, with particular reference to term Nos. 1(iii) and 2 of the terms of reference.

In the past, the Law Commission has examined the structure and jurisdiction of the High Court in its 14th, 58th and 79th Reports. 14th Report on Judicial Administration has a chapter on Supreme Court of India. There was a radical suggestion of setting up a Constitutional Division within the Supreme Court in the 95th Report. I can Justifiably assume that you are conversant with the recommendations in these reports. I must, however, state that the 95th Report is not as all implemented, not even printed till today.

The implementation of the recommendations of the Law Commission is tardy. In fact, more often the recommendation are ignored. Be that as it may, Government of India evinced a keen desire to introduce radical reforms in the justice delivery system of this country and, with that end in view, drew up the terms of reference.

I would like to inform you that the present Law Commission has submitted ten reports relevant to different terms of reference, three of them, i.e., 115th, 122nd and 123rd, directly deal with decentralisation of administration of justice by recommending Central Tax Court and eliminating the jurisdiction of the High Court in tax matters.

Similar approach has informed the Law Commission in recommending Industrial Relations Commission at the State and Central level as also Central Educational Tribunal at the same two levels to deal with specialist topic simultaneously eliminating the jurisdiction of the High Court in these matters.

The problem of arrears is directly interlinked with the dismal failure on the front of filling in vacancies in the High Courts and the Supreme Court of India. I am not aware as to where the fault lies. Fact remains that there is inordinate delay in filling in vacancies. In this connection I am happy to inform you that the Law Commission has submitted a comprehensive report recommending setting up of National Judicial Service Commission.

The Law Commission would examine the problem of backlog intertwined with the failure to fill in vacancies in the Supreme Court in its planned and projected work schedule.

I feel happy to inform you about the tentative thinking of the Law Commission in this behalf with a view to eliciting from you critical response to the same.

In the report on National Judicial Service Commission, the Law Commission has proposed setting up of a Commission headed by the Chief Justice of India to deal with the problem of filling in vacancies expeditiously in the Supreme Court and the High Courts. If implemented, the Law Commission is of the opinion that it would retrieve the situation to a considerable extent. But one cannot stay put there. I, therefore, approach you with a request to consider one more suggestion in this behalf.

I was told that a convention has grown up three decades back that till all the vacancies are filled in, the Chief Justice cannot resort to Article 128 of the Constitution. The convention was established in the background of the fact that vacancies were filled in very expeditiously. The situation today is depressingly different. If the convention is respected in the altered circumstances, it would render Article 128 nugatory, which the framers of the Constitution could not have anticipated. Therefore, the problem can be approached from two independent angles.

The vacancy occurs on retirement or death of a Judge in position. Death is such an uncertain event that one cannot foresee it and rationally deal with it, but retirement is known in advance. Therefore, even if steps are taken considerably in advance to fill in the incoming vacancies, yet if the vacancy is not filled in, the outgoing Judge shall continue to be in position till the incumbent is appointed.

One criticism voiced against this suggestion is that if Chief Justice has a good opinion about one Judge, he may not recommend the successor while someone, not such a hot favourite, may be pushed out by bringing in a successor as early as possible. This apprehension is wholly unfounded in view of the fact that the vacancies are filled in according to the chronology it has occurred. The difference can be of a month or two. But by adopting this method, the Court would at no time be without its sanctioned strength.

The second tentative suggestion is that in the capital city of Delhi, some retired Judges of the Supreme Court have settled down after retirement. They have established own residence as well as their transport arrangement. Article 128 provides that the Chief Justice of India may at any time, with the previous consent of the President, request any person who has held the office of the Judge of the Supreme Court or has held the office of a Judge of a High Court and is duly qualified to be a Judge of the Supreme Court, to sit and act as a Judge of the Supreme Court.

Service of Judges who have settled down in the capital city can be enlisted. No capital expenditure is involved in view of the fact that no separate building is required to be established. It is merely a question of adjusting the court time. The retired Judges may be requested to come at 8.30 in the morning and work up to 12 noon.

By setting up four different Benches of there Judges each, two Benches dealing with old civil and two Benches dealing with old criminal appeals, say, those instituted prior to 1980, they can dispose of as fast as possible many matters and it would be good use of the underutilised installed capacity of the Supreme Court building. They have to be compensated by giving them full salary without deduction of pension and pension equivalent to gratuity.

This would entail very little expenditure and would go a great way in disposing of old cases which has brought disrepute to the system. Simultaneously, it would be utilisation of a rich pool of experience of talented people, physically fit to render to the society which gave them the status. The convention hereinabove referred to may now be given a decent burial because it has lived its utility.

I am not at all referring to setting up one Judge Bench in some matters because the Supreme Court is already seized up with the matter. This remedy will to some extent help in retrieving the lost situation arising out of the delay in filling in the vacancies.

This approach can mutatis mutandis apply to High Courts also.

May I request you that as head of the judicial administration of this country and gravely concerned with the malaise in the system, to respond to these tentative suggestions as also to make on your own some new and original suggestions which may assist the Law Commission in its none-too-easy task.

My earlier experience of writing separate letters to all Judges has proved to be a futile exercise. I am, therefore, addressing this letter to you with a request to consult your valu9c1 colleagues and to let me have your considered views as early as possible.

With regards,

Yours sincerely,
(D. A. Desai)

Hon'ble Shri R.S. Pathak,
Chief Justice of India,
Supreme Court of India,
Tilak Marg,
New Delhi.

Encl: As above.