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Report No. 124

Chapter II

Principal Causes Contributing to Delay in Courts Noticed Earlier

2.1. The genesis leading to the appointment of the first Law Commission lies in a non-official Resolution moved in the Lok Sabha on 19th November, 1954. It reads as under:-

"This House resolves that a Law Commission be appointed to recommend revision and modernisation of laws, criminal, civil and revenue, substantive, procedural or otherwise and in particular, the Civil and Criminal Procedure Code and the Indian Penal Code, to reduce the quantum of case law and to resolve the conflicts in the decisions of the High Courts on many points with a view to realise that justice is simple, speedy, cheap, effective and substantial."

Pursuant to this Resolution, in August 1955, the then Law Minister made a statement in the Lok Sabha announcing Government of India's decision to appoint a Law Commission. Its first term of reference was: 'To review the system of judicial administration in all its aspects and suggest ways and means for improving it and making it speedy and less expensive'.

The Law Commission, with reference to its first term of reference, proceeded to inquire into the system of administration of justice, including in its scope the operation and effect of laws, substantive as well as procedural, with a view to eliminating unnecessary litigation, speeding up the disposal of cases and making justice less expensive. It comprehended within its scope of inquiry the procedure for recruitment to judiciary.1

1. LCI, 14th Report on Reform of Judicial Administration, (1958).

2.2. It adopted a multi-dimensional approach while examining the question of delay and cost involved in litigative processes. Inter alma, it was of the opinion that it was possible to lay down limits of time within which judicial proceedings of various classes should be normally brought to a conclusion. As far as the munsif's court is concerned, it was of the opinion that a contested regular suit should be disposed of within a year and if the trial Court happens to be the court of a subordinate judge, it must be disposed of within one and a half years.

No attempt appears to have been made to determine what should be the average duration of different types of litigation coming up before the High Court. But if the trial of a suit in the trial court can be ideally completed within one and a half years, a second appeal ought to be disposed of within half that time. The situation today can be appreciated from the dismal fact that 5,461 second appeals over ten years old were awaiting disposal on December 31, 1985. Similarly, 5,680 first appeals over ten .years old were awaiting disposal on the same date. To be more precise, 30,183 matters over ten years old were pending in the High Courts on the same date.1

1. Source: An Analysis of Institution, Disposal and Pendency of Cases in the High Courts for the year 1985, compiled by the Government of India, Ministry of Law and Justice, dated October 26, 1987.

2.3. Even at the time when the situation was not so gloomy and when a concerted attempt by the appointment of Law Commission was made to tackle the problem in all its ramifications while dealing with the question of the delay and arrears in the High Court, the two most important recommendations made by the first Law Commission were:

(1) the delay in filling vacancies in the High Courts was found to be responsible in a considerable measure for the accumulation of arrears in the High Courts, and

(2) inadequate Judge strength of each High Court not commensurate with the workload.

Incidentally it was observed that High Court Judgeship has ceased to be attractive to the senior members of the Bar and, therefore, their conditions of service, inclusive of pay, pension and perks and the age of retirement, should be suitably revised. It was also found that caste, communal and even occasionally political considerations have resulted in selection of unsatisfactory judicial personnel.1

1. LCI, 14th Report (1958), Chapter 6.

2.4. This line of thinking has permeated through all subsequent recommendations dealing with the High Courts. Suggestions were made that convention should be established to reduce to a minimum the intervention of the Executive in the matter of appointment of Judges to the High Courts and the Supreme Court of India. Nearly three decades have elapsed since the first report of the Law Commission on Judicial Administration.

During this journey through three decades, attempts have been made to improve the conditions of services of Judges of the High Courts and the Supreme Court as also to review and increase the strength of the Judges in the High Courts and the Supreme Court. Notice must be taken of some specific attempts very recently made. Parliament enacted the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1986. It also amended, by the Constitution (Fifty-fourth Amendment) Act, 1986, Part D of the Second Schedule to the Constitution.

By the constitutional amendment, the salaries of the Chief Justice of India, Judges of the Supreme Court and Chief Justice and Judges of the High Court were upward revised and more than doubted. By the Amendment Act of 1986, pension admissible to Judges of the High Court and the Supreme Court including the Chief Justices, was substantially revised. Other conditions of service, such as leave, travelling allowance and gratuity were also suitably revised. The attempt was to make judgeship in the High Court and the Supreme Court more attractive than what it is today.

2.5. Dealing with the second most important cause commonly found responsible for arrears in the High Court was the failure to periodically revise the judge strength of each High Court as also of the Supreme Court commensurate with the increase in the workload. Article 124(1) of the Constitution provides that there shall be a Supreme Court of India consisting of the Chief Justice of India and, until Parliament by law prescribes larger number, of not more than seven other Judges.

Parliament on four different occasions sanctioned upward revision of the Judge strength of the Supreme Court, to wit, in 1956, the strength was revised from seven to ten; in 1960, from ten to thirteen; in 1977, from thirteen to seventeen and in 1986, from seventeen to twenty-five excluding the Chief Justice of India. Similarly, very recently in March 1987, the Judge strength of High Courts was increased by sanctioning 81 posts comprising 25 of permanent Judges and 56 of Additional Judges. Therefore, it can be said that attempts have been made to remove one of the causes held responsible for accumulation of arrears.

The sub-limb of the second cause found responsible for mounting backlog of cases is inordinate delay in filling in vacancies, coupled with unsatisfactory appointments. The Law Commission has exhaustively examined this aspect. Briefly, the recommendation is that a National Judicial Service Commission must be set up to expeditiously deal1 with the question of filling in the vacancies in the High Courts and the Supreme Court. Thus, a comprehensive methodology to remove the causes responsible for piling up of arrears has already been recommended and is awaiting implementation.

1. LCI, 121st report on New Forum for Judicial Appointments (1987).

2.6. Therefore, it can be said that Law Commission has examined the problem of arrears from all possible angles and, while broadly retaining the structure of courts, has recommended comprehensive measures for tackling the problem of backlog of cases in High Courts and the Supreme Court. What remains now is the will to deal with the problem.

The High Court Arrears - A Fresh Look Back

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