Report No. 120

Manpower Planning in Judiciary: A Blueprint

1. This report essentially deals with the problem of judicial manpower planning, an area that has been generally ignored in India's planned development. Although there have been debates in Parliament and in public concerning the scandalous delays in judicial administration, and the previous Law Commissions have examined the problem, these exercises have not given the necessary impetus for a comprehensive restructuring of judicial administration in India.1 We must ask a simple question: Why?

1. M.P. Jain Outlines of Indian Legal History, (1981), pp. 254-256.

2. The answer to this question is at once inescapably both political and technical. Politically the Indian State since the colonial period has self-consciously under-staffed the judiciary. After the independence, too, this colonial situation has been allowed to continue, with the result that the Union of India. endorsed it before Judge Keenan of the New York District Court in the Union Carbide litigation.1 Despite this self-consciousness, no major initiative has resulted.

1. U. Baxi Mass Disaster and Multinational Liability: The Bhopal Case, (1986), p. 1961.

3. Commission does not wish to use the word 'political' only in the sense of criticising the Government of India or the various States. The Commission wishes to use the word 'political' broadly as including the overall lack of attention to this problem on the part of political parties, free press, social activists and the Bar. None of these groups have shown any effective will to campaign for adequate manpower planning for the Indian Judiciary, even while using the services of the Judiciary quite effectively for their own purposes from time to time. It must also be added that Judges of the High Courts and the Supreme Court of India, sitting or retired, have also not lent their weight to this constitutional cause in any major way. In other words, adequate reorganisation of the Indian Judiciary is at the one and the same time everybody's concern and, therefore, nobody's concern.

4. The technical reason simply is that the developing science of manpower planning has not attracted the attention of policy opinion makers in the field of administration of justice in India. All reorganisation proposals are basically patch work, ad hoc, unsystematic solutions to the problem.1 In our opinion, the relevant questions are as follows:

(a) On what principles since independence, have decisions been taken concerning the appropriate strength in each cadre of the Judiciary?

(b) Have these principles or norms ever been publicly articulated?

(c) Have they changed over the last four decades, and, if so, through what kind of discourse?

(d) For example, how many new offences have been created by laws enacted by Parliament and State Legislatures in last 40 years? Does the Justice Department keep the proportional increase in the workload of courts in mind and propose any corresponding increase in the strength of the Judiciary while proposing new penal offences? Please note that the same kind of questions need to be asked in relation to regulatory laws.

(e) The burden of judicial administration does not merely increase by the norms enunciated through only the Legislature. We may have situations where the Justices of the Supreme Court also created new norms of law through power to declare binding law under Article 141 of the Constitution of India. In relation to these, is there any profile being taken by the Law Ministry of the Union and the States? And does this profile enter in manpower planning for the Judiciary?

1. See U. Baxi The Crisis of Indian Legal System, (1982), pp. 58-83.

5. These illustrative questions would indicate, no doubt the lamentable fact that after four decades of independence, we have not been able to organise even the minimum level of information on the basis of which concrete proposals for judicial manpower planning may take place. There are no attempts at comparative study of this situation either. We have never asked the question, for example, how in a small country like Hungary, there will be as many as 70 Justices in the Supreme Court as compared to a grudging number of 25 in the Indian Supreme Court.

Both in terms of territory and population and the overall profile of the legal system, there are marked differences between Hungary and India. Similarly we have never addressed ourselves adequately to a behavioural study of the Indian legal profession and systematically examined practices which are inimical to development of sound administration of justice in India. Occasional pointers to these practices are indeed available in the official and nonofficial literature, but they in no case amount to an adequate scientific analysis.

6. The Commission has a feeling that absence of hard technical information and analysis has reinforced, if not generated, a tacit indifference to the situation by all concerned including the judicial administration. The Commission itself is in no position, given the fact of its present structure, to provide this kind of technical analysis only on which sound programme of change can be envisaged. Of course, the Commission has done the next best thing and elicited extensive opinion of those knowledgeable in the field and the general public. But we must admit that, all said and done, this is a very poor substitute for sound scientific analysis.

7. It has to be realised that judicial services are a crucial aspect of the services that the modern Indian State should provide to its citizens. In order to reinforce this obligation, the Constitution was specifically amended in 1976 to provide Article 39A as a major Directive Principle of State Policy. This directive principle should have immediately raised the question concerning the manpower planning of judicial services but this question is now being put forth, through the labour of the Commission, a whole decade after the constitutional duty has been inscribed by the amendment. What general approaches should we take to the problem is the first major question?

8. This question can, of course, be approached from several perspectives. First, we may try to correlate the general increase in population rate with the question of the number of Judges in all cadres. In regard to political representation in Parliament, the demographic factor has been frozen to the levels of population as at 1971 [See Article 81(3)]. India has today only 10.5 Judges per million population; Australia which had roughly ten million population in 1975, had 577 Judges giving an average of 41.6 Judges per million population; Canada with her 1,812 Judges with a population of roughly 25 million as of 1973, had the rate of 75.2 Judges per million population; England with 2,504 Judges for roughly 50 million people in 1973 had the rate of 50.9 Judges per million population and the United States with three times less population than India has 25,087 Judges as at 1981 giving an average of 107 Judges per million of population.1

This information filed by the Union of India expert Prof. Mare Gallanter has been endorsed by the Union of India. Clearly the total Judge strength of 7,675 is grossly inadequate for India.

1. U. Baxi Mass Desaster and Multinational Liability: The Bhopal Case.

9. Given the overall resource constraints, it is not possible for us even to suggest that we immediately rise to a total Judge strength of 25,087 which the U.S. commanded as of 1981. But certainly there is strong justification for the recommendation that we increases immediately the present ratio from 10.5 Judges per million of Indian population to at least 50 Judges per million of Indian population. We recommend accordingly.

10. It is difficult to envisage that the Judge strength can be five-fold within a short span. The process will have to be spread over a period of five years but in any case it should not exceed ten years. The national investment of the increase in number of Judges year to year may have to be worked out on a rough approximation. This exercise would not be difficult keeping in view the figures supplied in the Appendix. The Commission would not be able to work it out to the last paise. The exercise must be divided into two parts, namely, expenses on the salaries and perquisites of Judges and the corresponding increase in the administrative staff and infrastructural facilities. As the expense of the High Court and subordinate judiciary is charged on the Consolidated Fund of the State, it would be appropriate to leave it to each State to work out the rise in expenditure.