Report No. 189

IV

Need for adequate number of Courts and financial support

We now turn to certain important aspects that affect the right of access to justice. For the protection of rights, the State has to establish adequate number of Courts, man them by qualified, competent and independent Judges and provide the necessary staff and infrastructure. But today there is an immense gap between the demand and supply. It is well-known that the Law Commission had stated in its 120th Report that we in India have only 10.5 Judge per million population while countries like US and UK and others have between 100 to 150 Judges per million population.

The Union Government and the States in India had not toned up the judicial system in the last five decades so that today we are faced with tremendous backlog of cases in our Courts. Every law made by Parliament or the State Legislatures creates new civil rights and obligations and creates new criminal offences. Before such laws are introduced, a judicial impact assessment has to be made as to the impact of the Acts on the Courts - such as how many civil cases the Act will generate or how many fresh criminal cases will go before the Courts.

To that extent, each Bill must, in its Financial Memorandum, seek budgetary allocation but in the last five decades this has not been done. We may state that in US a statute specifically requires judicial impact assessment and adequate budgetary provisions to be made. Unfortunately, this is not done in India. The principle here is that the expense for the judicial branch must be met from the general taxes that are collected by the State.

Further, the trial Courts on the civil and criminal side which are located over the length and breadth of our country adjudicate upon civil rights or criminal offences created by various legislations made both by Parliament and State Legislatures. We are all aware that the Constitution in its VII Schedule, contains three lists. The entries in List I are subjects on which the Parliament alone can make laws, entries in List II are subjects on which the State Legislatures alone can legislate while in respect of entries in List III both the Parliament and State Legislatures can legislate.

Today, the factual position is that the subordinate Courts established by the State Governments are adjudicating upon the civil and criminal matters arising out of legislations made by Parliament and the State Legislatures. Bulk of the laws like the Transfer of Property Act, the Indian Contract Act, the Sale of Goods Act, Indian Penal Code, Civil and Criminal Codes etc. are referable to List III. The statutes enacted by Parliament on the subjects listed in List I and List III have the effect of leading to a large number of civil and criminal cases.

In other words, the Central Government is bringing forward legislation in Parliament and burdening the subordinate Courts established by the State Governments with cases arising out of the Central legislation. The Central Government has however not been making any contribution for establishing the trial and appellate Courts in the States. This lacuna has been pointed out by the Commission for Review of the Constitution. There is an immediate need for the Central Government to come forward with a package which will substantially increase the number of our subordinate Courts.

Today, more than seventy per cent of those who are detained in our jails are undertrials whose guilt is yet to be declared. By detaining such persons for unreasonable terms without providing adequate number of criminal Courts, the Union and the States are in a continuing breach of the 'right to access' to justice in our Criminal Courts and the right to 'speedy justice' guaranteed by Article 21. Speedy justice, the Supreme Court, has held is a fundamental right within the meaning of the words 'right to life' referred to in Article 21.

Long ago, in the Federalist Paper No.78, in the 18th Century, Alexander Hamilton, one of the architects of the American Constitution declared, in an oft-quoted passage, that the judicial branch of the federal government is one that "will always be the least dangerous to the political rights of the Constitution" because the judicial branch

"has no influence over either the sword or the purse; no direction of the strength or the wealth of the society"

Therefore, to start with, we must have an adequate number of trial and appellate Courts, civil and criminal, established by the Central Government and State Governments and adequate budgetary provision must be made before the enactment of any legislation, by making a judicial impact assessment. The expenditure must be borne from the general taxes collected by the Central and the State Governments.