Report No. 14
51. Bar on employment after retirement.-
In connection with the Supreme Court judges we have discussed the undesirability of retired judge.-being permitted to take employment under Government after retirement. The same considerations apply to retired judges of the High Court. In their case also, we recommend the enactment of a constitutional bar to Government employment after retirement as in the case of the Chairman and members of the Union Public Service Commission. Such a bar will not of course apply to a High Court Judge at any stage being appointed a Judge of the Supreme Court.
52. Recruitment from the judicial service (Qualifications) (Position under the Government of India Act, 1935).-
We may at this stage mention the need of an amendment to sub-clause (2)(a) of Article 217, the interpretation of which has recently led to the appointment of unsuitable service personnel to the High Court. Under that clause, a person who has for at least 10 years held a judicial office in the territory of India is qualified for appointment as a Judge of a High Court. The term "judicial office" has not been defined in the Constitution, though the expression "district judge" and "judicial service" have been defined.
If "judicial office" has reference to the holding of office in the judicial service of a State, not only would a person who has been a district judge or a subordinate judge for 10 years be eligible to be appointed to the High Court Bench but even a District Munsif or a Civil Judge (Junior Division) who has occupied that office for 10 years would be so eligible. He would be eligible even though he has never worked as a subordinate judge or a district judge. One may compare with the present constitutional provision section 220(3) of the Government of India Act, 1935, which provided that.-
"A person shall not be qualified for appointment as a Judge of a High Court unless he ...
(c) has for at least five years held a judicial office in India not inferior that of a Subordinate judge or a judge of a Small Cause Court."
Normally, a subordinate judge or a civil judge, senior division, as he is termed in some States exercises unlimited pecuniary jurisdiction and handles cases of a complex and difficult kind. Though a subordinate judge may not be a inember of the Higher Judicial Service that is, the holder of the office of a district judge as defined in the Constitution he would, by training and experience, be competent to deal with important matters. He would have been vested with jurisdiction under special enactments.
He would also have the experience of criminal trials as an assistant sessions judge. He would further generally have exercised civil appellate powers. It is thus apparent that the provision in the Government of India Act, 1935, ensured that only a judicial officer with considerable experience in different classes of judicial work was eligible for elevation to the High Court Bench.
However, under the Constitution a member of the judicial service who has not gained such varied experience would still be eligible for appointment to the High Court Bench. In most of the States, posts of Legal Remembrancer, Deputy Legal Remembrancer, and Assistant Legal Remembrancer in the Law Department of the State Secretariat are borne on the judicial cadre. A judicial officer may be taken up as an Assistant Legal Remembrancer and in course of time it would be possible for him to earn his promotion in the judicial service on the length of his service in the Secretariat.
In the course of our inquiry, we came across some of the officers of the judicial service working in the Secretariat who have been appointed as district judges in the judicial service without ever having performed the duties of a district judge. Notwithstanding the absence of experience as higher judicial officers, these judicial officers would under the constitutional provision be eligible for appointment as Judges of the High Court. In fact, recently, an officer in the Law Department of a State Government whose judicial experience was confined to work as a munsif has been appointed to the High Court Bench.
It is obvious that the discharge of their duties in the Secretariat in the various posts held by them would not give to such officers experience in the performance of judicial functions and cannot fit them for appointment to the High Court. It is true that they would have, in the performance of their duties dealt with complicated questions of law and advised Government on these questions. That, however, is a training very different from the training which persons in the Higher Judicial Service receive by having to hear cases from day-to-day, forming opinions as to the credibility of witnesses and reaching decisions in contested matters with lawyers appearing on either side.
53. Varied judicial experience essential (Amendment suggested).-
We are of the view that experience of actual judicial work of a varied kinds is essential to a judicial officer before he can be considered fit to be appointed to the High Court Bench. In our opinion it is essential that a judicial officer in order that he may be eligible for appointment to the High Court should have the experience of working as a district judge for at least three years.
As a district and sessions judge, he would have experience of a variety of work covering different branches of the law, would have exercised both civil and criminal appellate powers and would also have experience of the trial of Sessions cases. A District Judge would also have experience of judicial administration inasmuch as he would be in overall charge of the civil and in many cases, criminal courts in his district. We, therefore, recommend that sub-clause (a) of clause (2) of Article 217 of the Constitution may be substituted by the following:
"(a) has for at least three years exercised judicial functions as a district judge."
Having dealt with the main causes of the accumulation of arrears in the High Court we shall now proceed to suggest measures both for increasing the strength of such of the High Courts as need strengthening in order to enable them to cope with their normal work and for the reduction and removal of the arrears.
54. Strength of High Courts to be increased (Normal strength in be increased) (Periodical re fixation necessary).-
The large increase in the volume of annual institutions which has been referred to earlier must now, we think, be taken as a permanent feature. This position accordingly necessitates a thorough revision of existing ideas regarding the number of judges required for each High Court.
The strength of some of the High Courts has been increased from time to time. In doing this, however, the post-Constitutional developments which have thrown a much heavier burden on the High Courts have, in our view, not been adequately taken into account. To expect the existing number of judges in the various High Courts to deal efficiently with the vastly increased volume of work is, in our opinion, to ask them to attempt the impossible. As pointed out to us by a senior counsel, if there is a congestion on the roads due to an increase in traffic, the remedy is not to blame the traffic but to widen the roads.
The first essential therefore, is to see that the strength of every High Court is maintained at a level so as to be adequate to dispose of what may be called its normal institutions. The normal strength of a High Court must he fixed on the basis of the average annual institutions of all types of proceedings in a particular High Court during the last three years. This is essential in order to prevent what may be termed the current file of the Court falling into arrears and adding to the pile of old cases. The problem of clearing the arrears can be satisfactorily dealt with only after the normal strength of each Court has been brought up to the level required to cope with its normal institutions.
We suggest that the required strength of the High Court of each State should be fixed in consultation with the Chief Justice of that State and the Chief Justice of India and the strength so fixed should be reviewed at an interval of two or three years. Such a review will be necessary not only by reason to changing conditions but because the implementation of our recommendations made elsewhere will lead to a quicker disposal of work in the subordinate courts which, in its turn, will result in an increase in the work of the High Courts.
55. What are arrears? (Standard time limits for disposal)-
Before we turn to the important problem of clearing off the arrears, it is necessary to appreciate what should be regarded as "arrears". Every case pending in a court cannot be put in the category of arrears. In order to enable a court to function normally from day to day throughout the year, it must have what is called a normal file of pending cases. It has also to be remembered that a case, be it a civil or criminal appeal or any other proceedings, cannot be heard as soon as it is instituted. Some time must elapse before cases get ready to be heard and the time varied with the nature of each case and the volume of its record. Generally speaking, however, criminal cases require less time for becoming ripe for hearing than civil matters.
Having examined the figures of average duration of various types of cases coming before the High Courts, we are, of the view that the target practicable under the circumstances, though by no means an ideal one, for the disposal of civil matters, such as second appeals, and letters patent appeals, should be one year, for first appeals two years and for criminal matters and writs and civil revision petitions, six months from the date of institution. We realise that the standards we have suggested have some arbitrariness about them, but in the nature of things that cannot be avoided. In our view, only those cases which have been pending for periods of time longer than those mentioned above should be classed as arrears.
56. Measures for clearing arrears.-
We must next deal with the difficult task of devising effective measures to deal with the arrears so as to bring the pending file of each court' to its normal proportions within the shortest possible time. In suggesting measures to deal with arrears, we assume that the permanent strength of the High Courts fixed in the manner stated above will only be sufficient to deal with a current pending file which, having regard to what we have said above will mean the file of cases which have been pending for a period shorter than that mentioned in reference to each type of cases.
57. Appointment of additional judges (Not to be used for current work).-
We are of this view that the provisions of Article 224 of the Constitution should be availed of and additional judges be appointed for the specific purpose of dealing with these arrears. The number of such additional judges required for each High Court for the purpose of dealing with the arrears will have to be fixed in consultation with the Chief Justice of India and the Chief Justice of the State High Court after taking into consideration the arrears in the particular court, their nature and the average disposal of that court. The number of additional judges to be fixed for this purpose should be such, as to enable the arrears to be cleared within a period of two years.
The additional judges so appointed should, in our view, be utilised as far as possible exclusively for the purpose of disposing of arrears and not be diverted to the disposal of current work. Pari passu with the disposal of the arrears, the permanent strength of the High Court will have to be brought up to and maintained at the required level, care being taken to see that their normal disposal keeps pace with the new institutions and that they are not allowed to develop into arrears. The appointment of additional judges for the exclusive purpose of dealing with the arrears is, in our view, called for in a large number of High Courts.
58. Merit to be sole criterion.-
These additional judges would have to be selected either from the Bar or the judicial service. Having regard to the grave situation which has arisen by the accumulation of arrears and the urgent necessity of clearing them in the shortest possible time, we must emphasise that the choice of additional judges must fall only on the most competent persons available at the Bar or in the service. Merit and character alone should weigh with the appointing authority and the selection should not be permitted to be affected in any manner whatsoever by regional, sectarian, communal or any other extraneous considerations.
59. One unit of selection for the country.-
Further, the whole country must be treated as a single unit for the purpose of selection as it is vitally important that the best available talent which the country is capable of providing be mobilised for the task of meeting a situation which has undoubtedly assumed the proportions of an emergency. If suitable persons of the necessary merit and character are, in the opinion of the appointing authority, not available in the State, the authority should not hesitate to draw upon persons available in other States.
Selections from the Bar must necessarily be of persons of outstanding merit commanding a large practice who may well be willing to make a pecuniary sacrifice and render public service by accepting these judgeships. An effort should be made to persuade suitable senior practitioners to accept these judgeships at least for a short period as a public duty. Their position at the Bar must be of such eminence that it could not be suggested that acceptance by them of judgeships was likely to increase their earnings on their reverting to the Bar.
60. Creation of an ad hoc body to prepare a panel of names.-
We envisage that in some States persons of the required standing and competence may not be available and the State Chief Justice may not have information as to the talent available elsewhere in the country. Our further proposal, therefore, is for the creation of an ad hoc body presided over by the Chief Justice of India to draw up a panel of names of suitable persons both from the Bar and the Service in each State.
We have already stated that in appointing these additional judges due regard will have to be had to the availability of suitable persons both from the Bar and the services. It may be that the senior members of the Bar may not be willing to accept a position which would involve a considerable sacrifice on their part. It may further happen that one may not find suitable persons at the next lower levels of the Bar. In such cases, suitable talent will have to be looked for in the services.
In short, both these sources of recruitment should be treated as one field of selection with an eye solely to appointing the fittest men available from the entire field. During our tour of the country we have observed that the judicial services in certain States do not yet possess men of the calibre needed to make competent High Court Judges. In some States, even the Bar suffers from want of the necessary talent. It is in view of these deficiencies that we recommend that the country as a whole be treated as one single field of selection.
61. Increase in number of judges not sufficient (Transfer of pending first appeals to the district courts).-
We are conscious that a mere increase in the number of permanent judges and a temporary addition to the strength of the Bench will not be enough to eradicate the evil of accumulated and accumulating arrears. We have in another place suggested that the pecuniary limit of the appellate jurisdiction of the district judges should be immediately increased to Rs. 10,000 in all the States. Certain States have already, by legislation, effected this change. However, even in some of those States in which the limit of such appellate jurisdiction has been raised to Rs. 10,000 the change applied only to suits filed after the new legislation.
In the result not only are the files of the High Courts in such States clogged with first appeals valued below Rs. 10,000 but fresh appeals are still being filed against decisions in suit filed before the new legislation came into force. In the State of Uttar Pradesh the number of such appeals is about three-eighths of the pending file of first appeals. It is, therefore, necessary that the States concerned should enact fresh or amending legislation which would transfer appeals of this nature pending on the file of the High Court to the lower appellate courts for disposal and prevent fresh appeals of this nature being filed in the High Courts.
States in which the appellate limit of the District Judge has not been raised to Rs. 10,000 will have to undertake similar legislation. This legislative change will relief the High Court file of a very substantial number of pending first appeals and reduce in a considerable measure the number of institution of first appeals in the High Courts. We have dealt with the implications of this proposal in detail in another Chapter.
62. Administrative measures.-
We are also of the view that measures must be taken to conserve the available judge-power and use it in as an economical a manner as possible. We think that this can be achieved by mere administrative changes like the increase of the powers of single judges, amendment of rules regarding the preparation of paper-books, proper scrutiny of appeals at the stage of admission and other matters. We have dealt with such administrative measures in detail in later Chapters.
63. Vacations (Needed by the Bar and the Bench).-
Of late, the question of vacations has figured somewhat prominently before the public eye and the impression seems to have gained ground that the vacations enjoyed by the High Court are a luxury which the country can ill-afford. There is a considerable misapprehension in the minds of the public and others concerned with regard to this question. Judicial work is so exacting and requires such concentration that a certain amount of rest and leisure is essential in order to enable a Judge to perform his functions satisfactorily. Vacations are not peculiar to the High Courts in India.
All the world over, members of the highest judiciary enjoy vacations which are not of a shorter duration than those enjoyed in India. Thus in England in 1947, a Judge of the King's Bench Division worked for approximately 166 days in the year and in the Chancery Division for 168 days while the average number of working days in a year was approximately 180 days according to the Evershed Committee (Interim Report, page 45, para. 141). The Committee recommended an increase of eighteen working days. In effect, therefore, the Committee contemplated only 198 or approximately 200 working days in a year.
It is also a mistake to think that vacations are only necessary for the judges. The Bar has consistently and strenuously opposed the reduction of the vacations. In order that the judges should do their work well, a strong and competent Bar is essential and the quicker the disposal of the judges, the harder the Bar has to work. A member of the Bar has not only to work in Court presenting his case but he has also to spend hours in preparation so that the presentation of the case may be as concise and as effective as possible and, therefore, members of the Bar need a vacation as much as, if not more than, the judges.
Effect of curtailment on recruitment from the Bar.- The question might be looked at also from the point of view of the effect that the cutting down of the vacations will have on the future recruitment of judges. Every Chief Justice today finds it extremely difficult to induce leading members of the Bar to accept a judgeship. The salary of a judge has been cut down. The pension he would get on retirement in terms of the value of money today would afford him a bare maintenance.
Therefore, the only reason why a member of the Bar would accept a judgeship today would be because a judgeship would give him a certain status and dignity and would give greater leisure than he would have had if he had continued at the Bar. If the privileges enjoyed by the judges are to be further whittled down, the High Courts of the future will have to be manned either wholly by judges from the service or recruited from members of the Bar occupying the second line. In England, all parties are agreed in maintaining the rights and privileges of judges because they realise that the High Court can only function properly, provided the judges are recruited from the best talent available at the Bar.
64. Two hundred working days in the year.-
Even so we realise that in the context of the present times, when all the sections of the nation are called upon to work harder than before, the judges cannot lag behind in responding to this call. Therefore, some reduction in the vacations is inevitable. We think that all the High Courts should immediately give effect to the proposals of the High Court Arrears Committee that the number of the working days of the High Court should not be less than two hundred. We wish to make it clear that the work during these two hundred days should be judicial work in Court and the working time should be of five hours.
We say this because in some High Courts, Judges do not sit for five hours in Court and do administrative work or retire to their chambers to dictate judgments. Judgments should, if possible, be pronounced forthwith by dictation in open courts on the conclusion of the case or if a further consideration is required they should be reserved over the weekend. Once this target of working 200 days is achieved , it must be left to each High Court to decide how its vacation should be arranged.
65. Legislation to regulate working days undesirable.-
We have learnt with considerable misgiving of the reported proposal of Government to introduce legislation fixing the vacation of the High Courts. We think that such legislation would be highly objectionable in principle. It would constitute a serious interference with the independence of the High Courts and a grave encroachment upon the right of the Chief Justice and the Judges to regulate the affairs of the High Court. This legislation may well constitute a precedent for other legislation in future, by which Parliament may attempt more and more to interfere with the working of the High Courts.
We need hardly emphasize. that the independence of the judiciary in India depends upon the strength, status and prestige of the High Court and nothing should be done to lead the public to think that the High Courts are nothing more than a department of Government. It may also be pointed out that legislation may compel Judges to sit in court for a certain number of days; it cannot provide for how much work they should do during those days or the quality of work they should turn out.
These are matters which must, in the ultimate analysis, be determined by the conscience and good sense of the judges and it is only a sense of public duty and a lively consciousness of the high status and dignity of their office and its responsibilities that must make the Judges of the High Court realise that heavy arrears in a Court are a blot on the fair name of the judicial administration and in many cases a denial of justice to the citizen. We are sure that if an appeal is made to the High Courts to arrange their vacations so as to aChiefe the target we have indicated, the appeal will meet with a ready response.