Report No. 127

Chapter IV

Financial Palliative for the Courts

4.1. It is crystal clear that the available resources for the courts, both manpower and material, are woefully inadequate. A constitutional democracy founded on rule of law must of necessity provide adequate facilities for determination of basic legal rights. Rule of law survives where its transgression or violation is remediable at the hands of courts. If the courts are overloaded and are unable to redress the wrong quickly and efficiently, it would pose a threat to the constitutional democracy itself. Once the respect for rule of law deteriorates or disappears, the foundation of the constitutional democracy gets shattered. For its continued health, efficient care system is a pre-requisite. And the court system, to justify its usefulness, must be able to render quick, efficient and just justice.

As already pointed out by the Law Commission in its interim report on Manpower Planning in Judiciary,1 the Judge population ratio in India is grossly inadequate and requires to be enhanced at least five times in next five years. If this recommendation is effectively implemented, new courts, additional qualified staff, streamlining of staffing pattern, modern office equipments and, above all, attractive service conditions for the Judges and the staff will be needed as a first priority. Inputs under all these heads would require funds and the Law Commission is conscious that they are in short supply and not readily available.

1. LCI, 120th Report on Manpower Planning in Judiciary: A Blueprint,

4.2. Justice system does not stand high in the list of priorities for disbursal of public funds. Expenditure on administration of justice has still the dubious distinction of being styled as non-plan expenditure.

4.3. The salaries of Judges of the Supreme Court of India are a charge on the Consolidated Fund of India.1 Similarly, the salaries of the Judges of the High Court are a charge on the Consolidated Fund of the State.2 The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officer and servants of the Court, are also a charge upon the Consolidated Fund of India.3 There is an analogous provision in respect of the administrative expenses of the High Court.4

1. The Constitution of India, Article 112(3)(d).

2. Id., Article 202(3)(d).

3. Id., Article 146(3).

4. Id., Article 229(3).

4.4. Except the funds charged on the Consolidated Fund of India or of State, some additional funds required by the Supreme Court or High Court for maintenance of its administrative establishment are required to be voted in Lok Sabha or State Assembly, as the case may be. In this respect, the court system is very much at the mercy of the Legislature because funds which are votable can be varied each year. Formally, the budget proposal may emanate from the Supreme Court or the High Court, as the case may be, but the nodal Ministry in each case has hardly made an arrangement for a two way dialogue in respect of financial and management questions1. After the budget is received from the Supreme Court of India or the High Court, amounts in respect of votable items are re-set by the nodal Ministry.

Some cuts and alterations take place at this end. The revised proposal is sent to the Finance Ministry which has its own constraints and riders and ordinarily what finally emerges and is placed in the hands of the Court is much less than not only what is proposed but what is the minimal requirement. In processing through the Departments which have no vision as to the essential requirements of the courts, the whole exercise becomes a bargaining event and the representative of the court, if at all consulted, may be able to mould the situation both the ways depending upon his persuasive capacity. The hard fact that remains is that Judiciary has very little say touching the power of purse. And this aspect has consistently thwarted the growth and expansion of judicial services. This is a grey area fairly visible in the matter of relationship between the Executive and the Judiciary.

1. R. Dhavan Litigation Explosion in India, 112.

4.5. Since, 1973, and especially after the judgment in Kesavananda Bharati's case AIR 1973 SC 1461 popularly known as Fundamental Rights case, followed by the first supersession, the Judiciary in general and Supreme Court of India in particular acquired high visibility profile. The decisions in Sankari Prasad Singh Dev v. Union of India AIR 1951 SC 458 and Sajjan Singh v. State of Rajasthan AIR 1951 SC 845 confirmed the power of Parliament to amend any Part of the Constitution including Fundamental Rights which gave rise to a debate that the Court accepted the supremacy of the Parliament over Judiciary.

Consequently, the Executive retained its regard for the relative autonomy of the Judiciary. In Kesavananda Bharati's case, the Court, by a slender majority, while conceding the power of the Parliament to amend any Part of the Constitution, ruled that the basic structure/feature of the Constitution is beyond the amendatory power of the Parliament which, amongst others, includes the power of judicial review.

The Jurists writing on the functioning of the Court and the viewers of the Court's judicial process perceived certain threats emanating from the Executive to the independence of the Judiciary.1 While examining the views expressed by the Jurists on an earlier occasion, the Law Commission reviewed the power and the procedure for appointment of Judges to High Court and Supreme Court and, for detailed reasons stated therein, recommended a new forum for appointment of Judges to superior Judiciary. The underlying purpose was to make Judiciary self-reliant in matter of appointments, staffing patterns, necessary lay out on administration of justice, et al.2

1. U. Baxi Justice and Judicial Intervention.

2. LCI, 121st Report on A New Forum for Judicial Appointments.

4.6. The Jurists who prize independence of Judiciary have always lamented that the touchstone of judicial independence is the power of purse which unfortunately it sadly lacks. Every proposal, except the non-votable items, which entails financial liability emanating from the Judiciary can be implemented only if endorsed by the Executive. And in the priority of the Executive in the matter of distribution of its available resources, administration of justice is at a much lower rung of the ladder. The independence of the Judiciary can be seriously undermined if the requisite financial resources for its efficient and independent functioning are not made available. The arrears piled up at all levels in court's can be partly attributed to inadequate infra-structural facilities, which is compounded by lack of adequate and timely funding.

Funding of courts is given little public attention and much of the Judiciary's independence is taken away sub silentia.1, The tragedy is that when the demands for grants are voted upon in relation to the nodal Ministry which includes the budget proposals in respect of courts, that is, administration of justice, the members are not given information what requirements were advanced by the courts in their budget proposals and how the nodal Ministry has tinkered with the same, the reasons for the same, and whether the restoration is possible.

Further, the view of the Judiciary is not made available to Parliament. The case generally goes by default in the sense that the nodal Ministry becomes the final arbiter in respect of the requirements of the Judiciary. Apart from being unscientific, the third most important limb of the constitutional democracy, namely, Judiciary, has no say in the matter of disbursal of funds, including for its maintenance, sustenance, growth, expansion, etc.

1. R. Dhavan Litigation Explosion in India, 112.

4.7. Some illustrations in this behalf may prove revealing. The Chief Justice of the Andhra Pradesh High Court desired that the staff of the court be put on par in the matter of pay scales with their counterparts in secretariat service of the Executive Government. Now undoubtedly Article 229 empowers the Chief Justice of the High Court to make appointments of officers and servants of the High Court. Clause (2) of Article 229 provides that subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the High Court provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State, meaning thereby the State Cabinet -in actual working, the State Finance Ministry.

The staff aggrieved by the negative attitude of the State Government filed a writ petition seeking a writ of mandamus against the State Government directing it to implement the recommendations of the Chief Justice as made under Article 229. The submission of the Association of the staff was that Article 229(1) read with rule 19 of the A.P. High Court Service Rules empowered the Chief Justice not only to make appointment of officers and servants of the courts but also to prescribe their conditions of service and the requirement of approval of the Governor was merely a constitutional formality. The High Court allowed the writ petition and directed a mandamus to be issued.

On a certificate granted by the High Court, the matter came to the Supreme Court.1 The Supreme Court, while in terms disapproving the approach of the Government in not accepting the recommendation of the Chief Justice, on an interpretation of Article 229, held that the approval of the Governor, as contemplated by Article 229, is not a mere formality but is a matter of substance The fall out of the judgment can be best described by observing that there is real independence if unaccompanied by power of purse. To some extent, these provisions have considerably thwarted the growth and expansion of judic administration.

1. State of Andhra Pradesh v. T. Gopalkrishnan Murthy, (1976) 2 SCC 883.

4.8. A diametrically opposite view was taken by the Delhi High Court when it ruled that apart from the constitutional provision, as a matter of convention the Executive must accept the recommendation of the Chief Justice made i exercise of the power conferred by Article 229 and should not treat it on par with the recommendation made by some bureaucrats.1 The occasion for making this observation arose on when the staff of Delhi High Court long clamouring for equality of pay with their counterparts in the Centre and Delhi Administration moved in this behalf. This was vehemently opposed by the Executive. The High Court issued a mandamus to step up parity. The Court observed that the sovereignty of people is reflected in three limbs of the Constitution - the Legislature, the Executive and the Judiciary.

The Chief Justice is the head of the Judiciary. When, therefore, he makes a recommendation, the necessary presumption is that it has been made with a full sense of responsibility and circumspection and after having weighed various public interests as well as financial aspects involved. Barring exceptional circumstances, the recommendations of Chief Justice should be treated as binding and acceptable. If the approval of the Government was withheld or refused on extraneous or irrelevant consideration or in an arbitrary or discriminatory manner, it would amount to violation of the principles of equality laid down by Articles 14 and 16 of the Constitution and a mandamus can be issued.2

1. H.L. Vijh v. Union of India, ILR (1983) 2 Del 380.

2. Id., pp. 394-395.