Report No. 124
(Paras. 3.6 and 3.24)
January 20, 1988
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 shortcomings 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 terms No. 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. Over and above these reports, a Committee, called The High Court Arrears Committee, 1972, chaired by Shri Justice J.C. Shah, former Chief Justice of India, was set up. It was an informal Committee without any specific terms of reference.
The Committee was charged with a duty to suggest ways and means for reducing the arrears of cases pending in the High Courts only. The Committee submitted its report making detailed recommendations for tackling the problem of backlog. The Committee highlighted the known fact, namely, inability of the High Court to cope with the inflow and disposal of rising number of causes instituted, which is largely attributable to the denial of the necessary Judge strength to the High Courts at the appropriate time, and strongly advocated that vacancies must be filled in as expeditiously as possible.
The statistical table incorporated in the report shows that the delay in filling in the vacancies which attracted the attention of the Committee varied between 8 months 7 days to 1 month 18 days. Today, on an average, vacancies are not filled in for years. The situation has further considerably deteriorated.
The implementation of the recommendations of the Law Commission is tardy. In fact, more often the recommendations 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 interwined with the failure to fill in vacancies in the High Courts 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 thereof, therefore, approach you with n 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 224A 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 224A 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 of occurrence. 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 involves utilisation of the services of retired Judges. Usually, the High Court has its establishment in the capital of each State. In some States, Benches of the High Courts are set up in different cities in the same State. In the case of Punjab and Haryana, there is a common High Court for two States. Similarly in the case of Assam, the High Court at Guwahati has jurisdiction over several States. Now when Judges retire from the High Court, some of them settle down in the same city in which either the Principal Bench of the High Court is located or the city in which other Bench is established.
These retired Judges, who have settled down in the same city, must have usually established their residence as well as their transport arrangement. Article 224A, provides that the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State. Services of Judges who have settled down in the city can be enlisted without undergoing the question of finding residence and transport arrangement for them.
No capital expenditure is involved in view of the fact that no separate building is required to be constructed. It is merely a question of adjusting the court time. The retired Judge may be requested to come at 8.30 in the morning and work up to 12 noon. By setting up four different Benches of three Judges each, two Benches dealing with old civil and two Benches dealing with old criminal appeals, say, those instituted prior to 1984, there can be a massive effort to attack the backlog of cases. They should not be required to deal with admission work or any other work.
Only matters listed for final hearing should be assigned to them. Even not ready matters may be brought to their notice to give direction for making them ready. This method would ensure use of the underutilised installed capacity of the court buildings. It would also be good use of a rich pool of experience of talented people, physically fit to render to the society which gave them the status.
They have to be compensated by giving them full salary without deduction of pension and pension equivalent to gratuity. On the whole, this would entail marginal expenditure but would help in removing the curse on the system. In the light of this suggestion, the convention earlier referred to may now be given decent burial because it has outlived its utility.
May I request you as the head of the judicial administration of your State 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. I would request you to forward your considered opinion after consulting your colleagues to the Law Commission as early as possible.
(D. A. Desai)