Report No. 124
Constitution Matters as on 1st October, 1987
(Consolidated Classified Statement)
Year |
Tax |
Service |
Others |
Total Writ Petns(c) |
@Writ Petns(Crl.) |
|||||||||||
1 |
2 |
3 |
1 |
2 |
3 |
1 |
2 |
3 |
1 |
2 |
3 |
1 |
2 |
3 |
||
1968 |
... |
... |
... |
... |
... |
... |
2 |
... |
2 |
2 |
... |
... |
... |
... |
... |
... |
1969 |
... |
... |
... |
... |
... |
... |
1 |
... |
1 |
1+1 |
... |
... |
... |
... |
... |
|
1970 |
2 |
... |
2 |
... |
... |
... |
... |
... |
... |
2+1 |
... |
... |
... |
... |
... |
... |
1971 |
... |
... |
... |
1 |
... |
1 |
... |
... |
... |
1+3 |
1 |
0 |
1 |
... |
... |
... |
1972 |
1 |
... |
1 |
... |
... |
... |
... |
1 |
1 |
2+8 |
20 |
... |
20 |
... |
... |
... |
1973 |
10 |
... |
10 |
... |
... |
... |
8 |
... |
8 |
18+3 |
16 |
... |
16 |
... |
... |
... |
1974 |
16 |
... |
16 |
2 |
... |
2 |
7 |
... |
7 |
25+1 |
16 |
... |
16 |
... |
... |
... |
1975 |
2 |
... |
2 |
3 |
... |
3 |
11 |
5 |
16 |
21+6 |
9 |
... |
9 |
... |
... |
... |
1976 |
2 |
... |
2 |
... |
... |
... |
8 |
3 |
11 |
13+1 |
2 |
... |
2 |
... |
... |
... |
1977 |
... |
1 |
1 |
3 |
... |
3 |
23 |
5 |
28 |
32+140 |
37 |
1 |
38 |
... |
... |
... |
1978 |
... |
1 |
1 |
3 |
... |
3 |
73 |
9 |
82 |
59 |
58 |
50 |
108 |
... |
... |
... |
1979 |
... |
24 |
24 |
... |
5 |
5 |
12 |
6 |
18 |
47+155 |
92 |
15 |
107 |
... |
... |
... |
1980 |
19 |
2 |
21 |
... |
... |
... |
40 |
30 |
70 |
91+71 |
179 |
151 |
330 |
2 |
1 |
3 |
1981 |
2 |
1 |
3 |
1 |
3 |
4 |
8 |
16 |
24 |
31+11 |
222 |
188 |
410 |
11 |
16 |
27 |
1982 |
6 |
17 |
23 |
1 |
... |
1 |
7 |
24 |
31 |
55+10 |
708 |
285 |
993 |
16 |
30 |
46 |
1983 |
... |
5 |
5 |
... |
... |
... |
6 |
24 |
30 |
35+1 |
1063 |
1025 |
2088 |
24 |
... |
24 |
1984 |
... |
1 |
1 |
... |
... |
... |
50 |
36 |
86 |
87+33 |
715 |
223 |
938 |
6 |
0 |
6 |
1985 |
... |
... |
... |
... |
... |
... |
2 |
11 |
13 |
13+1 |
389 |
690 |
1079 |
6 |
0 |
6 |
1986 |
... |
... |
... |
... |
... |
... |
8 |
4 |
12 |
12+1 |
83 |
109 |
197 |
25 |
20 |
45 |
1987 |
... |
... |
... |
... |
... |
... |
... |
69 |
69 |
69 |
25 |
158 |
183 |
... |
... |
... |
Total |
60 |
52 |
12 |
14 |
8 |
22 |
266 |
243 |
509 |
643+447* |
3640 |
2895 |
6535 |
90 |
67 |
157 |
C.A.V |
... |
... |
... |
... |
... |
... |
... |
... |
... |
239 |
... |
... |
36 |
... |
... |
4 |
(*447 Appeals rectified on transfer from ordinary appeal side to be decided by Constitution Bench which were not registered as Constitutional appeals, but were received on transfer as per such directions from time to time).
The problem may appear insoluble. It would however be an insult to human ingenuity to surrender to the problem. It must be tackled.
3.2. Recalling that the delay in filling in vacancies, both existing and those created by the upward revision of the strength, being largely responsible for piling up arrears, one specific suggestion can be made till such time as the National Judicial Service Commission is set up.
3.3. Vacancy occurs in a High Court on the elevation of the High Court Judge to the Supreme Court or on retirement or death of a Judge in position. Death is such an uncertain event that one cannot foresee it and rationally deal with the situation on its occurrence. At any rate, the date of retirement of every Judge is presumably known from the day he takes oath of his office save and except in those rare cases where subsequent to the induction in the High Court the Judge raises a question about his birthday being recorded incorrectly.
These are rarest of rare cases. Therefore, occurrence of a vacancy on account of retirement of a Judge of the High Court is known years in advance. It has been repeatedly recommended that effective steps must be taken much in advance to fill in the incoming vacancies. The process of recommendation must start at least three to six months before the occurrence of the vacancy, which time will be spent in processing the proposal.
Even if the schedule is adhered to, experience shows that rarely, if ever, a successor is appointed on the day on which a vacancy occurs. On an average, a period ranging from one to three years is spent in filling in the vacancies.1 During this period, the Judge strength gets reduced, average disposal suffers and the arrears increase. To cite one case as of today, the High Court of Himachal Pradesh at Simla has a sanctioned strength of seven Judges and only three, including the Chief Justice, are in position.
What sense it makes to sanction upward revision and not to fill in the vacancy? It becomes a paper exercise and the arrears merrily pile up. Tacking, therefore, the question of time spent in filling in the vacancies, it is now necessary to consider a radical suggestion.
1. LCI, 121st Report on New Forum for Judicial Appointments.
3.4. Conceding that the Chief Justice of the High Court will start the process of recruitment by making necessary recommendation six months in advance of the occurrence of the vacancy, and yet if the vacancy is not filled in by the date on which it occurs, that is the successor is not available to take oath on the day of retirement of the outgoing Judge, to retain the strength of the High Court at its sanctioned level, the retiring Judge shall continue to be in position till such time as the successor is appointed and is ready to be sworn in.
3.5. Can this be done without raising the retirement age of the retiring Judge? The answer is that it is possible to do so within the parameters of the Constitution without revising the age of retirement of High Court Judge. Article 224A of the Constitution provides that:
'Notwithstanding anything in this Chapter, 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, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court'.
Of course, this can only be done with his consent but ordinarily such consent will be forthcoming. The Judge concerned formally retires when he attains the age of 62 and without all the formality of going in for a fresh appointment, he may continue to be in position till his successor is appointed. Consent of the President in such a situation would be of a formal nature, especially because the Judge is a sitting Judge and is not subjected to a fresh selection.
To put teeth into the recommended procedure, the Chief Justice shall move the concerned authority to obtain the consent of the President, six months before the date of the retirement of the Judge, which time would be more than sufficient to process the proposal and obtain the consent. President shall ordinarily grant the consent. The Judge strength would remain intact by this formula.
3.6. The Law Commission formulated a tentative proposal about the continuance of the retiring Judge in position as ad hoc Judge and requested the Chief Justice of India and the Chief Justice of each High Court to submit their critical response to the proposal after having deliberations with their colleagues.1 The response has been highly encouraging. There is almost near unanimity amongst Chief Justices of various High Courts in support of this proposal.
1. Copy of the letter to the Chief Justice of India and the Chief justice of each High Court (Appendices II and III).
3.7. It may be said that this is a very drastic, remedy. The cancerous growth of arrears which has proved intractable over years and has defied various peripheral suggestions has to be dealt with by a drastic remedy. But there is nothing to indicate that the remedy is drastic nor is it surgical in character. The remedy at best is a stop-gap arrangement which would energies all concerned with appointments of High Court Judges' to expeditiously deal with the problem.
And after all, till the date of retirement, the Judge was certainly working as a Judges of the High Court and his continuance for a couple of months would not in any way diminish the value of High Court judge-ship or tarnish the image of the High Court.
3.8. A Chief Justice of a High Court had a reservation about this remedy. In his opinion, if the Judge is not physically fit, he should not be allowed to continue in position and that in this respect a fresh medical certificate be obtained about his health or a confidential opinion of the Chief Justice of the High Court concerned must be obtained before the Judge is allowed to continue in position. If the Judge is suffering from an impaired health, he himself would not like to continue because the High Court work is very burdensome and taxing.
And he cannot be continued without his consent. Once the Chief Justice is allowed to interpose himself, even for this short continuance, all sorts of likes and dislikes will have a field day and the remedy itself may become counter-productive. For every new suggestion, there will be an apprehension but the apprehension has to be curbed in the larger interest of making justice delivery system effective and result-oriented.
3.9. The second suggestion which also emanates from the indefensible failure on the appointment front may now be examined. Assuming that the first suggestion is literally carried out, its effect will be felt in future as the High Court in each State will ordinarily be working with its full sanctioned strength.
Assuming that in the meantime all vacancies are filled in, the situation is so desperate that a justifiable apprehension is felt that even then, the improved situation may account for current institution and proportionate disposal so as not to permit further piling up of the arrears but it does not promise to reduce the existing arrears. And a delay of a day justifies that justice delayed is wholly denied. Therefore, an alternative has to be found to tackle the question of arrears without further augmenting the Judge strength.
3.10. Without meaning any disrespect, it can be said with confidence that even if the Judge strength is augmented in the High Court, the new inductee is bound to take some time to settle down to the rigors and routine of High Court work and to make his presence felt by expeditiously dealing with matters coming before him. One has, therefore, to think of utilising a pool of tried talent without exposing the depleted resources of State to further strain.
3.11. The principal Bench of the High Court is generally located in the capital city save and except cases like Rajasthan where the principal seat of High Court is at Jodhpur while Jaipur is the capital . There is still one more peculiar case where the capital does not have a Bench of the High Court to wit, Bhopal in Madhya Pradesh. But save these two exceptional cases, generally the principal seat of the High Court is located in the capital city.
The seat of the Supreme Court is located in the Capital of India. The constitutional provision is that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.1 At present, the Supreme Court sits in Delhi and even though feelers were sent, no attempt is made to provide a Bench of the Supreme Court in any other part of the country.
1. The Constitution of India, Article 130.
3.12. The Judges of the High Court, save with rare exemption are recruited from the members of the Bar practicing in the High Court or the subordinate judiciary of the High Court in each State. On retirement from the High Court, the Judges recruited from the members of the Bar ordinarily settle down in the city in which the principal seat of the High Court is located. Even those elevated to the Bench from the subordinate judiciary tend to settle down in the city in which the principal seat of the High Court is located.
The retired Judges, who settle down in the city in which the High Court is having its principal seat, have made their own arrangements for their residence and have generally also made their own arrangements for transport and telephone. Undoubtedly, few High Court Judges, after retirement from the High Court, sent to Delhi to practice in the Supreme Court. But they form a small percentage of the Judges retired from the High Court year after year.
3.13. These retired Judges are experienced people, having spent a major part of their life in adjudication work. They have thcided causes and controversies coming before them. They have collected a rich experience of decision-making process. They are well versed in the art of adjudication. They are fully conversant with court processes. They have acquired a certain expertise in dealing with matters, civil, criminal, tax, labour and constitutional coming before them.
In short, they represent a rich pool of talent. On retirement by superannuation, while some of them may enter the field of private practice, such as, private arbitrator or giving opinions, most of them languish without work and their rich experience is lost to the society. A country like India can ill-afford to waste its talent. How do we utilise the rich experience of these senior citizens?
