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Report No. 14

6. High Courts

1. Scope of enquiry-arrears and general questions.-

The question of the very heavy arrears pending in some of the High Courts has created a grave situation and rightly agitated the public mind a great deal. It is, therefore, necessary to deal broadly with the causes that led to the accumulation of these arrears and suggest measures of general application for remedying the situation. There are also some general questions of importance regarding the High Courts which may conveniently be dealt together with the problem of arrears. There are special problems facing the High Courts in particular States, with which we shall deal in the chapters dealing with individual States.

As a result of the re-organization of States in 1956, there are at present fourteen High Courts in India, including the High Court of Jammu and Kashmir, manned by about two hundred Judges. The pendency in the High Courts by far and large has shown a rise from year to year particularly in the post-Constitution period. The problem of arrears, however, exists in a very accentuated form only in certain High Courts. But even in the other High Courts, though the arrears are not very heavy, the disposals have fallen far short of what they should be in a properly regulated court.

2. Increase of work (Normal work) (Work under special jurisdiction).-

The problem of arrears in the High Courts must in our opinion be viewed against the very large increase in the work of these Courts in recent years, particularly during the period following the Constitution. Two main causes of this increase need mention. Firstly, the growing volume of ordinary litigation following the economic and industrial development of the country, has considerably added to the normal work of all the Courts. We append a Table (Table I) showing the extent of the increase under various heads.

Secondly, there has been an expansion of the High Courts' special jurisdiction under a variety of fiscal enactments like the Income tax and Sales tax Act and other special laws. The fact of such expansion was noticed by the High Courts Arrears Committee as far back as 1949. A very recent example of the conferment of the special jurisdiction on the High Courts will be found in the Representation of the People Act by which the High Court is empowered to hear appeals from the decisions of Election Tribunal.

3. Work under the Constitution (Complexity of work).-

The fundamental rights conferred by the Constitution and resort to the remedies provided for their enforcement have contributed largely to the increase in the volume of work in the High Courts. Applications for the enforcement of fundamental rights, applications seeking to restrain the usurpation of jurisdiction by administrative bodies and applications or suits challenging the constitutionality of laws have made large additions to the pending files of the High Courts.

It has to be observed that many laws have come in for challenge in the Courts on the ground of their inconsistency with the Constitution. The complexity of recent legislation has resulted in a large number of novel and difficult questions having been brought before the High Courts. Their decisions have not only taken longer time, but have led not infrequently to references to Full Benches which necessarily divert the available judge-power from what may be called normal judicial work.

As a result of this large addition to their work, the disposal of ordinary civil and criminal work in the High Courts has suffered very considerably. This increase of work and its specially difficult and novel character can well be regarded an important cause of the accumulation of old cases.

4. Paucity of strength of High Courts.-

Governments could not have been unaware, at any rate from 1950 onwards, that the files of the High Court were being loaded with a large amount of additional work. The large number of writ applications and applications questioning the constitutionality of enactments and rules framed thereunder must have come directly to the notice of the Governments. Responsible persons cannot also have failed to notice that the disposal of these complicated and in a sense novel matters consumed a great deal of the time of the High Courts which had the natural consequence of clogging its normal and usual work.

At any rate, with the experience gained within a year or two after the coming into force of the Constitution, when the effect of the laws conferring special jurisdiction upon the High Courts had begun to make itself felt, it should have been the duty of both the High Courts and the Governments to have examined the scale of the requirements of the High Courts as to their strength and to have taken steps well in advance to add to it before the Courts were swamped by the rising tide of arrears.

That unfortunately does not appear to have been done. Only during the last year or so has the gravity of the matter been appreciated to its full extent by the Governments concerned and the strength of the High Courts has been increased by the addition of partly permanent and partly additional Judges. Perhaps if these steps had been taken earlier, the country would not have been faced with the problem of arrears in its present acute form.

5. Unsuccessful efforts to add to strength (Faulty tests of assessing necessary strength) (Suggested convention).-

It does appear that in some cases the Chief Justices of the High Courts, conscious of the growing accumulation of work in their Courts, did make an endeavour to obtain additional judge-strength for their Courts. Their efforts seem, however, to have been defeated by a baffling procedure which seems to be in vogue in considering the need for additional Judges. It appears that when the Chief Justice of a High Court makes a recommendation for increasing the strength of the Court on the ground of the increase of work, the matter goes first to the State Government and then to the Home Ministry who in their turn consult the Chief Justice of India before reaching a decision.

The final authority competent to authorise the increase in the strength is the President. It appears that the persons handling the proposal in the Ministry have little or no knowledge or experience of courts and do not appear to be aware even of the distinction between civil revision petitions, civil miscellaneous petitions, first appeals or writ applications in the matter of the duration of the hearing. We have been informed that when a request for additional judges was made by one High Court, the proposal was considered on the basis that the rate of disposal of second appeals, civil revision petitions and civil miscellaneous petitions was a proper criterion for determining the number of Judges necessary for disposing of first appeals.

It is obvious that such a method of examination would be hopelessly faulty and it is not surprising that in the result, the High Courts have been denied during the period of stress from 1950 onwards, the necessary judge-strength. This is one of the important causes of the accumulation of arrears. We take the view, that it should be a convention, that if the Chief Justice of a State makes a request for the appointment of additional Judges and if the need for such additional Judges is accepted by the Chief Justice of India, the Chief Justice's request should be acceded to. Not only has the necessary addition to judge-strength been withheld, but in several cases a course of action has been pursued, which has resulted in depleting these Courts even of their normal strength.

6. Delays in filling vacancies.-

It appears that the delay in filling vacancies in the High Court has been responsible in a considerable measure for the accumulation of arrears in these Courts. It used to be the practice in the past to select persons appointed to fill vacancies well ahead of the expected vacancy, so that, the successor would take his seat immediately on the retirement of his predecessor. Of late, however, vacancies have remained unfilled for months. We set out below a few instances of the delays that have taken place between the occurrence, of the vacancy and its being filled up. Naturally, such delays have resulted in a considerable loss of judge-days in the working of the High Courts, with the necessary consequence of a rise in the volume of the accumulated work.

Statement Showing The Delays In Filling Up Vacancies In The High Courts of (1) Allahabad, (2) Punjab and (3) Patna.

(I) Allahabad

(I) Allahabad

Date on which vacancy occurred

Date of appointment

Period for which there was no Judge

1

2

3

28-12-1950

01/06/51

5 months

26-1-1951

01/06/51

4 months

03/07/51

08/08/52

13 months

21-10-1951 (Addl. posts sanctioned.)

14-11-1952

13 months

20-5-1952

23-12-1952

7 months

14-10-1952

06/04/53

6 months

04/11/52

06/04/53

5 months

24-12-1952

14-12-1953

12 months

09/02/53

06/05/54

15 months

20-2-1953

23-8-1954

18 months

31-3-1953

23-8-1954

17 months

12/02/54

11/11/54

9 months

24-3-1954

11/11/54

8 months

15-9-1954

31-3-1955

7 months

11/01/55

31-3-1955

3 months

14-3-1955 (Addl. posts sanctioned)

31-3-1955

2 weeks

Total

1421/2 months

(2) Punjab

1

2

3

08/12/52

13-3-1953

3 months 5 days

28-10-1953

24-5-1954

6 months 26 days

01/04/56

14-1-1957

9 months 13 days

14-1-1957

05/08/57

6 months 21 days

19-3-1957*

05/08/57

4 months 17 days

Total

30 months 22 days

(3) Patna

1

2

3

19-2-1951

13-4-1951

2 months 4 days

01/06/52

11/12/52

6 months 10 days

Sept. 1952 (Addl. posts sanctioned)

12/12/52

2 months 11 days

09/01/53

04/04/53

2 months 25 days

03/02/53

13-4-1953

5 months 10 days

03/09/53

13-4-1953

5 months 10 days

01/12/54

29-8-1954

11 months 26 days

10/01/55

12/05/55

5 months 11 days

30-4-1956

13-5-1955

4 months 3 days

20-1-1956 (Addl. posts sanctioned)

03/09/56

4 months 3 days

17-5-1957

03/09/56

7 months 14 days

03/02/52

20-10-1957

5 months 13 days

8-1-1953 (None appointed in a vacancy on leavereparatory to retirement)

11 months 5 days

Years Months Days

Total

5 8 15

*. Recommended for two additional posts but only one Additional Judge sanctioned.

Note-

Uttar Pradesh.-(1) The loss of working strength of the High Court by reason of the delays is roughly equivalent to the absence of 12 Judges for 12 months.

Punjab.-(2) There was a loss of 2 Judges for over one year.

Patna.-(3) The loss was roughly equivalent to the absence of 5 Judges for one whole year.

It is difficult to appreciate, why matters which could expeditiously be dealt with prior to 1947, so that, hardly a case arose when there was an appreciable interval between the vacation of office by a Judge and his successor taking his seat, should be subject to such great delays at the present time. We have not been able to ascertain the causes of these delays satisfactorily. However, it appears that a considerable time is lost in correspondence between the authorities concerned as to the fitness of the persons to be appointed.

A Chief Justice of a High Court told us that the delay in the appointment of Judges was in a large measure due to what he called "disputes as to the selection of the successor". It is known that the appointment of an Additional Judge of a High Court was held up for over a year merely by reason of a difference of opinion between the Chief Justice of the High Court and the executive as to the person to be appointed. Whatever be the cause, we are of the view that such delays are inexcusable and should not occur.

7. Deputation of judges for non-judicial work.-

Frequently judges have been deputed for non-judicial work. Many disputes or unusual occurrences give rise to a demand or a judicial inquiry and these are generally met by deputing a High Court Judge for the purpose. Though the confidence of the public and the Government in the ability and integrity of the High Court Judges thus demonstrated is gratifying, yet the frequency with which such work is thrust upon them adds to the pending files of the High Courts.

Instances have been brought to our notice of the High Court Judges having been taken away on deputation for considerable periods. In one High Court during a period of ten years, a Judge was away on deputation for as long as six years. Though such lengthy absences may be rare, cases of Judges being asked to undertake other work during term-time for a period of a few weeks or months are not uncommon.

We are aware that the deputation of High Court Judges for the performance of such duties is necessary in the public interest. But it is imperative that the authorities should take care in such cases and particularly, when such duties are likely to take a substantial period of time, to keep up the strength of the Court.

8. Unsatisfactory appointments.-

We must next refer to an important factor which, in our view, has considerably aggravated the situation, caused by the accumulation of arrears. We refer to the selection of unsatisfactory judicial personnel. We have visited all the High Court centres and on all hands we have heard bitter and revealing criticisms about the appointments made to High Court judiciary during recent years. This criticism has been made by Supreme Court Judges, High Court Judges, retired Judges, Public Prosecutors, numerous representative associations of the Bar, principals and professors of Law Colleges and very responsible members of the legal profession all over the country.

One of the State Governments had to admit that some of the selections did not seem to be good and that careful scrutiny was necessary. The almost universal chorus of comment is that the selections are unsatisfactory and that they have been induced by executive influence. It has been said.that these selections appear to have proceeded on no recognizable principle and seem to have been made out of considerations of political expediency or regional or communal sentiments. Some of the members of the Bar appointed to the Bench did not occupy the front rank in the profession, either in the matter of legal equipment or of the volume of their practice at the Bar.

A number of more capable and deserving persons appear to have been ignored for reasons that can stem only from political, or communal or similar grounds. Equally forceful or even more unfavourable comments have been made in respect of persons selected from the services. We are convinced that the views expressed to us show a well-founded and acute public-dissatisfaction at these appointments. The observations made by Chief Justice Kania referred to by us elsewhere that merit alone should be the basis for selection to the High Court judiciary seems to have been completely overlooked.

9. The untoward consequences.-

The selection of a person on considerations other than of merit has far-reaching repercussions. Such a Judge would naturally not receive from members of the Bar, who would be no strangers to his capacity, the full measure of co-operation which is needed for the proper administration of justice; nor would a Judge so appointed generally have that amount of confidence in himself which alone can contribute to the efficient discharge of his duties. These circumstances are bound to affect adversely the quantity and the quality of the work turned out by such a Judge. It is axiomatic that the lowering of judicial standards must adversely affect the efficient administration of justice.

It has been stated in some quarters that the larger the number of Judges, the lower is the proportionate output of work. We are of the view that such a generalisation is not based on any acceptable data; but what seems to have led to lower output of work by Judges is the appointment of persons who are not satisfactory. Whether a Judge of a High Court is selected from the Bar or from the services, he should be the fittest person available to hold that office. If this cardinal principle is overlooked in making the appointment, and persons of indifferent capacity are appointed, the work turned out by such persons will naturally not come up to the proper standards.

If, therefore, there has been in some cases a proportionately lower output of work when a larger number of Judges are appointed, the fall in the work is clearly attributable to the circumstance that the persons added were not fitted for the office. The inevitable effect of appointments of this character to the High Court Bench on the disposal of work and the mounting arrears is obvious.

10. Constitutional provisions and the machinery for appointment.-

The Constitution provides a machinery for the appointment of High Court Judges in Article 217. It provides for the appointment being made by the President after consultation with the Chief Justice of India, the Governor of the State and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. inquired have shown that in the case of all the appointments made to the High Court Bench after 1950, the constitutional procedures laid down by Article 217 have been followed and that most of the persons have been appointed with the concurrence of all the persons consultation with whom is required.

Some of the persons appointed have not however been persons recommended by the Chief Justice of the High Court. We were informed that two of the appointments to judgeships in the High Court of Calcutta had been made in recent years against the recommendation of the Chief Justice of that High Court. We also became aware of a very recent case when a person was appointed to the High Court Bench in Allahabad against the view of the Chief Justice of that Court. Instances were also mentioned to us when out of a panel of names submitted by the Chief Justice, the last in the order of merit has been selected for appointment.



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