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Report No. 127

4.9. The Supreme Court Employees Welfare Association was long since clamouring for extending to them the benefit of pay scales and allowances which were in vogue for the officers and members of the staff of the High Court of Delhi, the parity to be established cadre-wise. The Chief Justice of India had appointed a Committee which had recommended that the question of revision of pay scales of then officers and staff belonging to the Registry of the Supreme Court of India may be referred to the Fourth Pay Commission.

In a petition filed by the afore-mentioned Association, the Court directed by way of interim relief the parity as prayed for and directed the Union of India to make the necessary reference as recommended by the Committee. The interim relief also entailed financial responsibility. In view of the Court's direction, the same could not be demurred on the plea that the direction had not the approval of the President as provided in proviso to Article 146(2) of the Constitution.1

1. Supreme Court Employees Welfare Association v. Union of India, (1986) 2 SCALE 124.

4.10. The principle enunciated in the aforementioned judgments may be extended a step further. It is the duty of the State to set up adequate number of courts for expeditious disposal of disputes arising between the residents of the State. It is the fundamental obligation of the State to create courts which can exercise the judicial power of the State. Failure to perform this duty may permit a mandamus to be issued to the State to perform its constitutional obligation, one such obligation being to set up adequate number of courts and to place funds at their disposal so that they, in their turn, can carry out the obligation to dispense justice independently, expeditiously and efficiently.

This logically follows from a view expressed by one of the Judges of the Supreme Court composing the Bench, in judge's case. After undertaking a detailed analysis of the continued neglect on the part of the Government in not making a proper review from time to time of the number of permanent Judges necessary for each High Court and not making appointment to that extent, he directed that 'the Union Government', which has the responsibility of appointing sufficient number of Judges in every High Court, should be directed to review the strength of permanent Judges in every High Court, to fix the number of permanent Judges that should be appointed in that High Court on the basis of the workload and to fill up the vacancies by appointing permanent Judges.... A writ in the above terms shall be issued to the 'Union Government'.1

1. S.P. Gupta v. Union of India, 1981 Supp SCC 87 (915-916) (per Venkataramiah, J.).

4.11. Independence of Judiciary is one of the foremost concerns of the Constitution of India. A writer on constitutional law is of the opinion that 1independence of the Judiciary is one of the cardinal features of our Constitution. Fearless justice which can only emanate from independent Judiciary is a prominent creed of the Constitution and 'the independence of the Judiciary is a fighting faith of our founding fathers'.2 Reverting to the same subject, it was observed that "the creed of judicial independence is our constitutional, 'religion' and if the Executive imperils this basic tenet, the court may do or die".3 To buttress this independence, it is now necessary to clothe the courts with power to determine its own requirements which, of necessity, must include the power to set up adequate number of courts and to appoint adequate number of Judges.

If the power of purse remains with the Executive and the financial constraint is trotted out as an excuse to deny adequate financial resources for setting up additional courts, 'judicial independence becomes a teasing illusion'4 and a promise of unreality. The Constitution set up an independent Judiciary and it cannot be that while it vested it with powers over the persons and property of every citizen, it will deny to itself the consequential power to determine its own needs as to men and material. Continued efficient working of the Judiciary is simply indispensable and essential for the balance of constitutional power.5

1. Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193.

2. Shamsher Singh v. State of Punjab, (1974) 2 SCC 831, Per Krishna Iyer, J.

3. Union of India v. Sakalchand Himatlal Seth, (1977) 4 SCC 193 (255), Per Krishna Iyer, J.

4. Shamsher Singh v. State of Punjab, (1974) 2 SCC 831 (886), Per Krishna Iyer, J.

5. M.L. Jain Solutions Regarding Court Disposals and Functions, 71 AIR Journal 90 (1984).

4.12. The legislative appropriation and executive control over finances cannot be permitted to castrate or cripple the courts by refusing or reducing requisite grants and re-appropriations. To have the courts under the fiscal thumb of the Executive is in direct violation of the spirit of the Constitution. The courts are frequently called upon to pronounce on the acts of those who control public funds and, therefore, must be kept free in such cases without fear of retaliation, open or concealed. If independence of Judiciary is to be sustained, it must possess power over the purse. To refuse to provide adequate funds to the courts is to prevent them from discharging their constitutional responsibilities and, therefore, constitutes an encroachment upon the exclusive area of the Judiciary.1

1. M.L. Jain Solutions Regarding Court Disposals and Functions, 71 AIR Journal 91 (1984).

4.13. While undoubtedly, as pointed out hereinbefore, at least one of the Judges of the Supreme Court has expressed a view1 that a mandamus can be issued if the proposal to open or set up additional courts is rejected or negatived on extraneous or irrelevant considerations but in practical life it is rather inconceivable that the Judiciary should seek before itself a writ of mandamus against the Executive every time the situation demands it. A spirit of adjustment and compromise must inform the deliberations in this behalf. Some workable solution has to be devised so that the stringent, occasionally counter-productive, financial control of the Executive over the courts even in the face of legitimate pressing needs can be countered.

1. S.P. Gupta v. Union of India, 1981 Supp SCC 87.

4.14. The Law Commission would like to suggest a working solution in this behalf. The Law Commission has already recommended setting up of the National Judicial Service Commission1 for dealing with problems of appointment of judicial officers at various levels, restructuring Judiciary by setting up Indian judicial Service,2 training of judicial officers3, et al. This body can be entrusted with additional task of determining and finalising the financial needs and budgets of the courts. National Judicial Service Commission itself may set up a new body, called the 'Finance Consultative Committee', which must undertake the task of periodically assessing financial needs of the Judiciary at various levels and it must have liaison with the Finance Ministry and ordinarily its recommendations must be accepted. The Committee may consist of-

(1) The Chief Justice of India in respect of the Supreme Court or the Chief Justice of the High Court in respect of the High Court;

(2) Administrative Judge of the High Court;

(3) Administrative Officer of the court in charge of finance;

(4) Secretary, Ministry-in-charge of Judiciary; and

(5) Secretary, Ministry of Finance, Department of Expenditure.

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

2. LCI, 116th Report on Formation of an All India Judicial Service.

3. LCI, 117th Report on Training of Judicial Officers.

4.15. Ordinarily the budget should be proposed by the High Court or the Supreme Court, as the case may be. If the budget is to be approved, the matter should be referred to this Committee and it must finalise the same. This Committee will provide a meeting ground for an interaction and inter-facing between the representatives of the court and the executive branch and by sheer discussion and dialogue, consensus can be arrived at.

4.16. Once the administration of courts is modernised by introducing management experts as Court Executives, trained court staff aided by modem facilities is provided and the financial bottlenecks are removed by setting up of Financial Consultative Committee, large number of problems which have proved irritants between Executive and Judiciary will disappear like the morning dew. Once the irritants are removed, this apparent confrontation between Executive and Judiciary would wholly disappear, ensuring smooth functioning of court and quickening disposal of cases.

Resource Allocation for Infra-structural Services in Judicial Administration - A Continuum of the Report on Manpower Planning in Judiciary: A Blueprint Back

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