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Report No. 125

Chapter IV


4.1. In the search for solution for the unbearable load of arrears under which the Supreme Court is functioning, the Law Commission studying the problem of judicial reforms approached the Chief Justice of India, by a letter dated January 19, 1988 (See Appendix III), requesting him to assist the Law Commission in the scientific analysis of the problem so as to churn out effective remedial measures.

After drawing his attention to the earlier reports,1 he was informed about the report submitted by the present Law Commission, especially dealing with decentralisation of administration of justice by suggesting specialist tribunals eliminating the jurisdiction of generalist courts. The Law Commission then, in the form of an approach paper, pointed out its tentative thinking on what ought to be done to effectively deal with the situation and which can be done without much effort expeditiously.

1. LCI, 14th, 58th and 79th Reports.

4.2. All those who concentrated their attention on the functioning of the Supreme Court and the problematic of arrears were convinced that one of the principal causes largely responsible for accumulating arrears is the inordinate delay in filling in vacancies in the Supreme Court. A few days back the Minister of State for Law and Justice replying to a question in Rajya Sabha stated that 9 vacancies remained unfilled in the Supreme Court. He further proceeded to state that the selection of judges involved consultation with the concerned constitutional authorities.

He stated that it is not possible to indicate any definite time for filling up the vacancies1 If the sanctioned strength of the Supreme Court is 26 including the Chief Justice of India, the information supplied reveals that one-third of the vacancies have remained unfilled for over two years. Whatever may be the causes for this gross delay in filling in the vacancies, it is unthinkable that such long time may be required to be spent in filling in the vacancies.

Accordingly, the Law Commission was convinced that even with the utmost sincerity, which can never be questioned, the root cause for this disturbing situation must be traced to the procedure for filling in vacancies. The Law Commission accordingly drew the attention of the Chief Justice of India that it has recommended a new forum for appointments to Supreme Court and High Courts.2 That report is with the Government.

It has been placed on the table of both houses of Parliament. The Law Commission then proceeded to point out that the recommendation for substitution of a different forum for dealing with judicial appointments may take some time before it becomes operational. In the interregnum, it would be dangerous to shut one's eyes to the problem of arrears.

1. The Indian Express Delhi, 11th March, 1988.

2. LCI, 14th Report.

4.3. It has been statistically established that there is inordinate delay in filling in vacancies. Therefore, an urgent step is necessary to deal with it forth with before long term decision is taken in the form of setting up a new forum for judicial appointments. In the letter, it was pointed out that the vacancy occurs on retirement or death of a Judge in position. Death is such an uncertain event that one cannot foresee it and rationally deal with it in advance.

But retirement is known in advance. In the past, pious observation was made that process for filling in the vacancy must start considerably in advance before the actual date of the retirement of a Judge which would cause the vacancy. There is no response to this suggestion and the situation remains unchanged.

Therefore, a proposition was put for the consideration of the Chief Justice of India that hereafter whenever a Judge reaches the date of his retirement, he should not quit but from that day onward, unless his successor is ready to take over, the provision contained in Article 128 of the Constitution must be invoked. In other words, the Judge so retiring should continue to function as one who is requested under Article 128 to act as a Judge of the Supreme Court till such time as his successor is ready to take over.

This will ensure no impairment of the Judge strength of the Court even for a day. A possible critique of this suggestion was also pointed out specifying the rational answer to the same.

4.4. The second tentative proposal of the Law Commission centred round the effective use of the retired Judges of the Supreme Court who since their retirement have settled down in the capital. The advantages of effective use of this accumulated pool of talent were also specified. The letter also contained a request that these tentative suggestions may be implemented till such time as the permanent solution in the form of setting up a new forum for judicial appointment becomes operational.

A request was made to Chief Justice of India as head of the judicial administration of the country and gravely concerned with the malaise in the system to respond not only to this tentative suggestion but also some mere which he may think of making on his own after consulting his colleagues. The Chief Justice of India has not thought it fit to respond to this letter. The loss undoubtedly is of the Law Commission. But a body with a time-bound programme cannot indefinitely wait. It is also legitimate to infer that possibly there was no serious objection to those suggestions.

4.5. The Law Commission is of the opinion that the long term permanent solution of this problem of filling in vacancies lies in effective implementation of its report recommending a new forum for judicial appointments. During the interregnum, it is absolutely necessary to implement the two suggestions which are recommended herein.

4.6. The delay in filling in a vacancy has the inbuilt tendency to impair the Judge strength of the Court for such time as the vacancy is not filled in and the mandays lost by not filling in the vacancies in time invariably result in further piling up the arrears. Continued unimpaired Judge strength of the Court is indispensable to the proper functioning of the Court. This report is not concerned with finding out causes responsible for the delay in filling in the vacancies. It has been dealt with in the earlier report succinctly and fully.

But till such time as effective steps are taken to fill in vacancies expeditiously, it is recommended that the retiring Judge shall continue to be in position till such time as his successor is ready to take over. This suggestion has two distinct advantages: (i) the Judge strength will remain unimpaired, and (ii) the highly experienced Judge would be available with his expertise to deal with the causes expeditiously because a newly appointed Judge takes time to acclimatize to the working in the Supreme Court. Unquestionably, these two advantages outweigh the critique of the suggestion.

One criticism voiced during discussion was that if the outgoing Judge is one for whom the Chief Justice has good opinion, he may drag his feet in recommending the successor; but if he is one who is not so fortunate, he may be quickly put out of office by bringing in the successor as expeditiously as possible. This criticism lacks legitimacy for the reason that if expeditious appointment is generated for the reason herein stated, it would certainly be to the advantage of the institution.

However, the better response to the criticism is that the vacancies are filled in chronologically so that one so good may continue, followed by one not so good. Even when successor for the next man is appointed, he would take over from the first-mentioned person. Added to this is the fact that the Chief Justice of India is free from all such biases and acts only and unquestionably for the good of the system. For these reasons, the apprehension is wholly unfounded. The advantages far outweigh a possible suspected disadvantage and, therefore, this suggestion deserves to be implemented forthwith.

4.7. In dealing with the question of arrears, it must be stated that the sanctioned Judge strength has never been found sufficient to make any dent in mounting arrears. As pointed out hereinbefore1, the Judge strength of the Supreme Court has been revised on four different occasions and at no point of time the revised strength has made any impact on the arrears.

It is, therefore, safe to conclude that the existing Judge strength at any given point of time may at best be able to deal effectively with the current incoming work but will be totally ineffective in making any dent in the arrears. Therefore, leaving the present Judges strength to deal with the current work, a distinct new device is necessary to deal with the arrears.

1. The Supreme Court (Number of Judges) Amendment Act, 1986.

4.8. It is widely known, and not questioned, that some Judges after retirement from the Supreme Court settle down in Delhi. Though they may have come from different parts of the country, when elevated to the Supreme Court, they may have their own reasons for settling down in Delhi. When they settle down after retirement in Delhi, they provide for their own residence, telephone and other facilities that they need. These retired Judges constitute a pool of rich talent which requires to be fully utilized.

Before coming to the Supreme Court, they must have worked in High Court at least for a period of not less than 10 years and they have added to their expertise by being in the apex court on an average for about 5 years. All through their active career, they have decided causes and controversies coming before them. They have sharpened decision-making process which is an asset. Art of adjudication is in their blood. Court processes and court procedure are handy to them.

They have acquired a certain expertise in dealing with matters, civil, criminal, tax, labour and constitutional, coming before them. To repeat, they represent a rich pool of talent. On retirement by superannuation, in view of the provision contained in Article 124(7), they are prohibited from practising before any court or before any authority within the territory of India. They may do chamber practice but that hardly attracts all the retirees because by aptitude and any way of life, a number of them may not be interested in entering chamber practice. How to use this unutilized pool of talent?

4.9. Whenever a suggestion is made to augment the strength of the Court, a question is always raised about the financial implications of the proposal. Whenever the Judge strength is augmented and more Judges are appointed the question of providing them with residence, perks and facilities and even extension of building and addition to staff are dangled as prohibitively costly and the proposals are put in cold storage. The recommendation which the Law Commission is making, takes care of all these possible areas of additional expenditure.

4.10. To begin with, it is time to frankly annihilate a myth that expenditure on administration of justice is non-plan expenditure. A constitutional democracy founded on rule of law cannot develop even economically unless its legal formulations are in tune with its economic policy which, as the Preamble shows, must be socialistic in character.

This dichotomy between economic planning and legal formulation has been largely responsible for courts taking a view different from the Executive in respect of even economic and taxation measures which necessitated amendment of the constitution on numerous occasions. Without adverting to this aspect at length, one can say with confidence that expenditure on administration of justice must be now treated as plan expenditure.

4.11. With this preliminary observation the existing situation may be given its due consideration. The buildings available to courts are hardly fully utilized, especially the building of the Supreme Court. Courts assemble at 10.30 A.M. and leave at 4'O clock. Therefore, if some Courts can start functioning at 8:30 A.M. then without spending a farthing on building, additional Courts can effectively operate in the same building. Library, building facility, staff in the central ministerial establishment of the court would not need any augmentation. There will be a slight rise in the expenditure for providing some additional staff to the additional Courts.

The Supreme Court - A Fresh Look Back

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