In 55recent months, the public discourse concerning judicial reforms in this country has focused — entirely disproportionately — on the controversy surrounding who gets to appoint judges to the highest courts in the land. This is not surprising: for nearly 20 years, our political class — across the spectrum — has been fairly unanimous in its view that an unpardonable slight was inflicted on it by the Supreme Court in the Second and Third Judges cases,¹ when primacy in the process of selecting judges to the High Courts and the Supreme Court was arrogated by the Supreme Court unto itself. With the enactment of the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 (NJAC Act) in Parliament — and their subsequent invalidation by the Supreme Court² — the debate surrounding the merits and workings of the ‘collegium system of appointments’ has only continued to dominate the headlines, and nearly all the other issues confronting the judicial administration apparatus in the country have thus, unfortunately, taken a back seat.

The administrative challenges confronting the Indian judiciary today are by no means trivial. The total number of established courts in the country is wholly inadequate, as evidenced by the abysmal judge-to-population ratio in India (when contrasted with any reasonable international benchmark).³ With recruitments to vacancies in the lower judiciary taking place across the country at a snail’s pace,⁴ and the process often spilling over several years (as it is invariably mired in litigation),⁵ there is also a significant shortage in the number of support staff available across various courts to assist the judges. Not to mention, computerisation efforts are woefully slow, record-keeping practices are still archaic, physical infrastructure is inadequate in several districts,⁶ on-the-job training for judges on emerging legal subjects is insufficient,⁷ and legal aid cells are 56barely functional and unable to render speedy and effective assistance to litigants. And, most significantly, the overarching issue of insufficiency of funds to tackle these various pressing needs has never been addressed in any meaningful way.

This large web of administrative challenges facing the judiciary has manifested itself, most alarmingly, in the shape of the ‘pendency’ crisis, which — as noted elsewhere in this Report — seriously questions the credibility of the Indian state to fashion a society founded on the ideals of justice and the rule of law as envisaged in the Constitution. The Ministry of Law and Justice has reported that, as of December 2014, approximately 2.64 crore cases were pending before the subordinate civil and criminal courts across the country, and a further 41.5 lakh cases were pending before the High Courts, bringing the total to approximately 3.06 crore cases.⁸ In the absence of a clear understanding as to who is accountable to the citizen for this state of affairs, meaningful measures to address the problem cannot be taken.

Who is Responsible for Judicial Administration? Learnings from the Constitutional Scheme

At the outset, it may be noted that the power to make laws (and to exercise corollary executive authority) in relation to the subjects of ‘administration of justice’ and ‘constitution and organisation of all courts, except the Supreme Court and High Courts’ is traceable to Entry 11-A in List III of the Seventh Schedule to the Constitution (that is, the Concurrent List). In other words, this power is shared between the union and the states; whilst the states are free to make laws on the subject, those laws will be void to the extent of any repugnancy with a central law (except where special assent of the President, in the manner contemplated by the Constitution, has been obtained by the state in question).⁹ Where the Supreme Court and the High Courts are concerned, the legislative (and executive) power relating to the constitution and organisation of such courts is vested exclusively with the union, in terms of Entries 77 and 78 in List I; however, insofar as the subject of ‘officers and servants of the High Court’ are concerned, it is within the exclusive realm of the states (in terms of Entry 3 in List II of the Seventh Schedule). The onus of undertaking a periodic review of the strength of each High Court lies formally with the President, under Article 216 of the Constitution; however, it has since been clarified by the Supreme Court that this power must be exercised by the Chief Justice of India and the Chief Justice of the High Court concerned, with regular periodicity, in the interests of ensuring the effective administration of justice — and it is they who must make recommendations to the President.¹⁰

The ‘vertical’ distribution of power as between the union and the states in matters concerning the judiciary, as set out above, is complemented by a further ‘horizontal’ division of power, as between the executive and the judicial wings of government — and especially at the state level (that is, in relation to the subordinate judiciary). In this context, reference may specifically be made to Chapter VI of Part VI of the Constitution. While Article 233(1) contemplates that the appointments, postings, and promotions of District Judges shall be made by the Governor, in ‘consultation’ with the concerned High Court, it is now settled law that — in the interests of both securing judicial independence, and also ensuring the effective separation of powers — the Governor is required to engage in well-informed, ‘meaningful and effective consultation’¹¹ with the High Court (thus virtually giving the High Court primacy in this process, with the Governor merely passing formal orders). 57Where direct recruits are to be made to the cadre of District Judges in any state, the High Court has been expressly given primacy by the Constitution, under Article 233(2).¹² The High Courts also enjoy overall control over all subordinate judges, including in matters pertaining to their promotions, postings, and disciplinary proceedings, by virtue of Article 235. However, in the matter of appointment of persons to subordinate judicial positions below the rank of District Judge, Article 234 contemplates a role for the State Public Service Commission as well (in addition to the High Court), and furthermore, rules may be made by the state government to regulate the process of appointment, by virtue of Article 309 of the Constitution.

It may be noted that the prevalent practice in many states is that a judge of the High Court nominated by the Chief Justice of that court sits with the State Public Service Commission, for the purposes of making selections under Article 234 (for entry-level positions in the state judicial service below the rank of District Judge); in many other states, the power of selection under Article 234 is also ultimately vested exclusively in the High Court¹³ itself, in terms of rules made under Article 309.

In other words, in all matters relating to the selection for appointment, promotion, and postings of subordinate judges, it is the High Courts which are the principal repository of the authority under the Constitution, and the role of the state government/Governor is invariably only formal in character, and there is no role at all contemplated for the Supreme Court. The disciplinary jurisdiction also vests in the High Court, on whose recommendation formal orders are eventually issued by the Governor. Insofar as all other service conditions of subordinate judges are concerned, it is again the High Court which is the competent authority, and it wields all the real administrative power — subject only to the rules (if any) made under the proviso to Article 309 of the Constitution.

In addition, the power of the Supreme Court and the High Courts to regulate their own administrative affairs in the matter of staff appointments has also been stipulated for, by making provision in the Constitution itself for the Chief Justices of these courts to make appointments of the officers and servants of the court — either directly, or through such other judge or officer of the Court as the Chief Justice may direct — in Articles 146 and 229. This power includes the power to suspend, dismiss, remove, or compulsorily retire any officer or servant of the court from service.¹⁴ The roles of the Governor¹⁵ and the State Public Service Commission¹⁶ under Article 229, though not merely formal, are ultimately limited: they are expected by the constitutional scheme to give due deference to the recommendations of the Chief Justice of the High Court.¹⁷

While the above constitutional provisions are salutary from the perspective of ensuring the functional administrative independence of the judiciary, it is to be noted that no specific provision has been made in the Constitution to ensure the larger financial independence of the judiciary, and to empower it fiscally to pursue the goals of securing justice for the common man wholly independently of the executive. Even Articles 146(3) and 229(3), noted earlier, only stipulate that the administrative expenses of the higher courts shall be charged upon the respective consolidated funds of the union and the states; however, the budgets required for the day-to-day running of the larger judicial apparatus in each state are still under the control of the executive in the respective states. It was not thought necessary by the framers of the Constitution to ensure a complete separation of powers in this respect, by making provision for the express protection of judicial budgets (notwithstanding the goals enshrined in Art. 50). Therefore, although much of the administrative power in respect of matters pertaining to the judiciary has been vested in the courts 58themselves (and, most notably, in the High Courts at the various states) as explained above, the judiciary continues to be entirely dependent on budgetary allocations made by the executive for carrying out its work.

The Need for a Financially Independent Judiciary

In his consultation paper titled ‘Financial Autonomy of the Indian Judiciary’ that was submitted to the National Commission to Review the Working of the Constitution (NCRWC), 2001–2002,¹⁸ Justice M. Jagannadha Rao, the then Vice-Chairman of the Law Commission of India (and former Judge of the Supreme Court) noted:

1.1 Today, the Judiciary in India is blamed for the huge backlog of cases. It is time that the public is made aware that during the last 50 years after independence, little attention has been paid by the Government for improvement of the infrastructure of the Judiciary. There is a dearth of Courts and Judges and of buildings both for Courts and Judges and officers and staff. In several cases even minimum facilities have not been given. The reason is that there is no planning and proper budgeting of the Courts’ requirements in consultation with the Judiciary as is done in other countries. Nor is there a long range Plan or at least a Five Year Plan. The result is that most courts are over burdened with cases on the civil and criminal side. Delay results in a serious infraction of right to speedy trials, to violation of human rights in various cases. A stage has reached when the parties are thinking of taking the law into their hands.

1.2 In the above scenario, it has become necessary to go into the subject of ‘financial independence’ or ‘financial support’ of the Judiciary in India at some length on a comparative basis and also to consider the need for adequate provision for the Judiciary as a ‘Plan’ subject.

The paper further notes the progress made at deliberations over the previous 60 years in various domestic and international fora — including at the United Nations — on the subject of achieving functional financial autonomy of the Judiciary;¹⁹ and it acknowledges that, time and again, international conferences have concluded that an effective, independent judiciary can be built in democratic societies only by giving the judiciary a meaningful say in the preparation of its own budgets, and by giving a body in which the judiciary is sufficiently represented (such as ‘judicial councils’ — which often comprise representatives from the executive and from civic society, in addition to serving judges) the administrative control over judicial infrastructure systems.

Justice Rao’s sub-committee therefore suggested to the NCRWC that adequate provision be made — among other things — to (a) immediately ensure the separate allocation of funds in the five year plans by the Planning Commission and the Finance Commission, for the purposes of the state judiciaries in particular (which, hitherto, was not being done — even though most subordinate courts were adjudicating matters pertaining to rights and offences created under central laws); (b) create a suitable new constitutional or statutory body at both the central and state level — such as the ‘judicial councils’ set up in other countries — having adequate representation from the judiciary itself, to deal with the overall administrative needs of the judiciary (including policymaking, drawing up of budgets, and their implementation in relation to the subordinate courts); (c) create a healthy convention whereby budgets prepared by the judicial councils in consultation with the executive are accepted by the legislatures without any downward revision; and (d) permit full re-appropriation of amounts by the judicial councils towards any alternative heads 59of expenditure, within the overall budgetary allocation, in the event of an exigency — without need for further bureaucratic clearance from the executive.

The recommendations made in the consultation paper were largely echoed in the final recommendations of the NCRWC, which — in Chapter 7 of its final report — observed:

7.7 The Commission recommends the setting up of a ‘Judicial Council’ at the Apex level and Judicial Councils at each State at the level of the High Court. There should be an Administrative Office to assist the National Judicial Council and separate Administrative Offices attached to Judicial Councils in States. These bodies must be created under statute made by Parliament. The Judicial Councils will be in charge of the preparation of plans, both short term and long term, and for preparing the proposals for annual budget….

7.8.1 The Commission is of the view that the budget proposals in each State must emanate from the State Judicial Council, in regard to the needs of the subordinate judiciary in that State, and will have to be submitted to the State Executive. Once the budget is so finalized between the State Judicial Council and the State Executive, it should be presented in the State Legislature.

7.8.2 Government of India should not throw the entire burden of establishing the subordinate courts and maintaining the subordinate judiciary on the State Governments. There is a concurrent obligation on the Union Government to meet the expenditure for subordinate courts. Therefore, the Planning Commission and the Finance Commission must allocate sufficient funds from national resources to meet the demands of the State judiciary in each of the States.

Of the various suggestions forwarded to the government by the NCRWC, perhaps the only one to have received some attention thus far is the proposal for making a separate allocation of funds for the judiciary in the reports of the Planning Commission and the Finance Commission. The report of the 14th Finance Commission, for instance — which has made recommendations to the union government for the period 2015–2020 — endorses the proposal of the union government’s Department of Justice for earmarking a sum of Rs 9,749 crores, over a period of five years, for the creation of new courts, for the re-design of existing courts to make them more litigant-friendly, for providing technical manpower support to judges, for bringing in new computerisation technologies, for supporting law schools, for the creation of Lok Adalats and alternative dispute resolution (ADR) centres, and for other capacity-building measures.²⁰ However, unlike the 13th Finance Commission — which had recommended a grant-in-aid to the states of a total sum of Rs 5,000 crores for improving justice delivery systems²¹ — the 14th Finance Commission has merely recommended that the states use the ‘additional fiscal space’ proposed to be made available to them in the tax devolution to take up the projects recommended by the Department of Justice; in other words, no additional grants-in-aid of the states’ revenues were recommended. The observations of the NCRWC noted earlier — to the effect that the union government ought not to shy away from its obligation to provide funds for the subordinate judiciary — thus appear not to have found favour with the 14th Finance Commission.

60The various other recommendations of the NCRWC, which were noted above, have found even less favour with consecutive parliaments: there has thus far been no move whatsoever to create any separate constitutional or statutory body to take over the administration of the judicial system from the judges, and nor has there been any move to wholly hand over the purse strings in matters pertaining to judicial administration to the judges. However, since a grant of Rs 300 crores was approved by the 13th Finance Commission for the various states to appoint ‘professionally-qualified court managers’ — typically, persons with MBA degrees — to assist the various Benches of the High Courts, and also the Principal District and Sessions Judge in each judicial district, in the administrative functioning of the courts, many High Courts did select and appoint court managers on an experimental (contractual) basis. The impact made by these appointees, and their effectiveness in performing the tasks²² assigned to them, has thus far not been disclosed publicly; by some accounts, even tailor-made courses designed by law schools to specifically train candidates in court management have not produced any graduates interested in opting for a career in court management.²³

Holding the System to Account: Challenges, and the Way Forward

In the analysis of some former judges we spoke to, the seemingly discordant constitutional scheme described earlier — which distributes administrative powers and responsibilities to the High Court, on the one hand, and overarching financial control to the state executive, on the other — has ultimately evolved as an accountability mechanism in its own right. With the Supreme Court having repeatedly ruled, in a wide variety of situations, that the constitutional framework gives primacy of place to the Chief Justices of the High Courts in matters pertaining to the administrative affairs of the subordinate judiciary, healthy conventions have developed in most states whereby requests made by the High Courts for administrative support to the judiciary are acted upon promptly by the state executive. The High Courts, in turn, recognising their own primacy in administrative matters pertaining to the judiciary, are increasingly appointing a larger number of senior judges (of the District Judge cadre, and also subordinate judges) to discharge exclusively administrative functions — such as the functions of vigilance, recruitment, infrastructure and maintenance, computerisation and modernisation, running ADR centres, etc. In many states, the High Courts also invariably depute a judicial officer from the subordinate judiciary to the service of the state government, to serve as secretary to the government in the Department of Law and Justice — this is done with a view to ensuring smoother coordination between the High Court and the state executive, and to secure the effective support of the state’s administrative apparatus for implementing the executive decisions of the High Court.

The perspective of the Bar and the litigant public, however, tends to be somewhat more sceptical: with the concentration of administrative responsibility in the office of the Chief Justice, one often wonders whether any serious accountability mechanism with respect to judicial administration can be spoken of when the chief justices are themselves not expressly made answerable to any other constitutional authority in their discharge of their duties. If, for instance, the office of the Chief Justice is not amenable to the mandamus jurisdiction of the High Court, as has been argued before,²⁴ then — quite ironically — the litigant public may have no judicial recourse open to it in the event of an abdication of administrative responsibility by the Chief Justice.

Secondly, at a pragmatic level, given that the prevalent norms mandate that the Supreme Court’s collegium appoint an ‘outsider’ Chief Justice to any state’s High Court, and given also the relatively short tenure (of typically not more than three years) that a Chief Justice enjoys in any High Court, it becomes imperative to consider whether a Chief Justice — acting individually — will at all times be the best placed to take vital administrative decisions concerning the subordinate judiciary in the state. Often, it is seen that administrative complexities 61can be effectively addressed only after giving due consideration to the relevant local conventions and practices of the High Court, and only after one has acquired a thorough understanding of all that has transpired previously (in relation to any imbroglio). A newly sworn-in Chief Justice may not immediately have access to the information necessary for making the most efficient administrative decisions, especially in relation to disputes pertaining to the appointments or service conditions of subordinate judges, and the time required to acquaint oneself with the background facts often compromises the efficiency of the system itself (especially if selections, appointments and/or promotions are not given effect to, pending resolution of the controversy). It is therefore advisable that, in such cases, where the administrative issue falling for the consideration of a Chief Justice is one that requires a deeper understanding of the local context, a larger body of judges — such as a ‘collegium’ of the senior-most puisne judges, or even the full court — be tasked with the administrative responsibility, and/or be available to assist and advise the Chief Justice.

Finally, it must be noted that even though the High Courts (and, in particular, the Chief Justices of the High Courts) are principally tasked, under the Constitution, with administrative superintendence over the subordinate judiciary in the states, the Supreme Court has itself also been exercising some of this power, by invoking its ‘continuing mandamus’ jurisdiction in All India Judges’ Assn. v. Union of India.²⁵ Directions have been passed from time to time in this petition over the past 27 years, including in relation to the building of infrastructure for lower courts and residential quarters for judges of the subordinate judiciary in various states, revision of pay scales for judges of the lower courts, review of their retirement ages, making facilities for provision of law books to judges, constitution of ad hoc committees to review the progress made by the state governments from time to time in implementing these directions, etc. It is perhaps only on account of the absence of a clear accountability mechanism under the Constitution for the administration of our law courts, the ineffectiveness of a decision-making system that is centred almost entirely in the office of short-term Chief Justices at the High Courts, and the reluctance of the central government to address the issue (by either creating a new constitutional authority to provide administrative support to the judiciary, or by commissioning an all-India judicial service that is trained in not only the law but also in world-class management techniques), that the Supreme Court has found itself constrained to provide ad hoc solutions from time to time, through judicial fiat. Conversely, though, one could also equally argue that the reluctance of Parliament (and the executive) to usher in the next generation judicial reforms that have so often been spoken of now — by way of either effecting constitutional and/or statutory changes to create new administrative structures to manage the justice delivery system, or setting parameters that make the justice delivery system accountable to the litigant public, or mandating the use of technology in judicial functioning, or handing over control of the purse strings in relation to judicial administration to the judges themselves, etc.— can be traced back to the ferocity with which the Supreme Court itself has sought to insulate itself from external accountability systems, in the name of ‘judicial independence’. In either event, it is evident that the culture of ad hocism that has hitherto held sway does not serve any useful purpose any more, and a concerted effort is required to be made by all stakeholders now, urgently, to put in place proper institutional mechanisms that can take over the full-time task of administering the judicial apparatus from the judges, and to also evolve performance metrics to hold those administering the judicial apparatus to account for the functioning of the ‘system’.

62Notes

1. Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 and Special Reference No. 1 of 1998, re, (1998) 7 SCC 739 respectively.

2. Supreme Court Advocates-on-Record Assn. v. Union of India, 2015 SCC OnLine SC 964.

3. A recent press release issued by the Ministry of Law and Justice, Govt. of India indicates that the judge-to-population ratio in the country, as of 29 February 2016, is 17.72 judge/judicial officers per million population. See, Ministry of Law and Justice, Govt. of India. 2016. ‘Appointment of Judges’, Press Information Bureau, 3 March, available online at http://pib.nic.in/newsite/PrintRelease.aspx?relid=137288 (accessed on 27 March 2016). In All India Judges' Assn. (3) v. Union of India, (2002) 4 SCC 247, the Supreme Court had directed that measures ought to be taken to increase the judges-per-million population ratio to 50, in keeping with previous recommendations of the Law Commission.

4. All India Judges' Assn. (3) v. Union of India, (2002) 4 SCC 247.

5. Justice Sunil Ambwani. 2009. ‘Justice Administration: “Case and Court Management”’. Paper presented at the Judicial Training and Research Institute, Uttar Pradesh, 31 January, available online at http://ijtr.nic.in/articles/article%2010001.pdf (accessed on 13 March 2016).

6. All India Judges Assn. v. Union of India, (2010) 14 SCC 718.

7. All India Judges’ Assn. (1) v. Union of India, (1992) 1 SCC 119.

8. Ministry of Law and Justice, Government of India. 2016. ‘Pending Court Cases’, Press Information Bureau, 3 March, available online at http://pib.nic.in/newsite/PrintRelease.aspx?relid=137291 (accessed on 13 March 2016). This figure does not include the 59,468 cases pending before the Supreme Court as of 19 February 2016, as also reported in the same press release.

9. Art. 254, Constitution of India.

10. In the Second Judges case, the Supreme Court had observed:

[I]n making the periodical review of the Judge-strength of the superior courts, particularly the High Courts, the President must attach greater weight to the opinion of the CJI and the Chief Justices of the High Courts and that exercise must be performed with due dispatch.

Any proposal made by a Chief Justice of a High Court for increasing the Judge-strength of his Court concerned must be routed through the CJI, who on such recommendation has to express his opinion either by giving his consent or modifying the recommendation or otherwise for sufficient and sound reasons and forward the same to the President. Once the CJI has concurred with the proposal, then the Government should accept that proposal without putting any spoke in the wheel or disapproving it.

11. A.C. Thalwal v. High Court of H.P., (2000) 7 SCC 1 (Thalwal).

12. See, Thalwal.

13. Justice B.P. Jeevan Reddy. 2001. ‘A Consultation Paper on Superior Judiciary’, Final Report of the National Commission to Review the Working of the Constitution, 26 September, available online at http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm (accessed on 27 March 2016).

14. Chief Justice of A.P. v. L.V.A. Dixitulu, (1979) 2 SCC 34.

15. State of A.P. v. T. Gopalakrishnan Murthi, (1976) 2 SCC 883.

16. H.C. Puttaswamy v. High Court of Karnataka, 1991 Supp (2) SCC 421.

17. State of H.P. v. P.D. Attri, (1999) 3 SCC 217. See also, High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, (1997) 6 SCC 339.

18. Available online at http://lawmin.nic.in/ncrwc/finalreport/v2b2-1.htm (accessed on 27 March 2016).

19. In particular, reference is made in the paper to ‘Financial Provisions’ (Arts. 24, 25 and 26) of the ‘Syracuse Draft Principles on the Independence of the Judiciary’, which were formulated by the International Commission of Jurists at Syracuse, Sicily in May 1981. Justice Rao’s consultation paper also noted the ‘Beijing Statement of the Principles of the Independence of the Judiciary in the LAWASIA region’, adopted by the 6th Conference of Chief Justices of Asia and the Pacific.

20. 14th Finance Commission. 2014. ‘Chapter 11: Grants-in-aid’ and also Annex 11.2, ‘Report of the 14th Finance Commission’, available online at http://finmin.nic.in/14fincomm/14fcrengVol1.pdf (accessed on 27 March 2016).

21. Department of Justice in the Ministry of Law and Justice, Govt. of India. 2011. ‘“Improving Justice Delivery”: Ready Reckoner on Thirteenth Finance Commission Grant, Government Orders and Guidelines Issued by the Government of India’, available online at http://doj.gov.in/sites/default/files/READY%20RECKONER%20TFC%281%29_5.pdf (accessed on 27 March 2016).

22. According to the Registrar-General, High Court of Karnataka. 2014. ‘Order No. LCA-II-74/2011 Bangalore dated 12th June 2014’, Proceedings of the High Court of Karnataka, Bangalore, 12 June, available online at http://karnatakajudiciary.kar.nic.in/recruitmentNotifications/cm-appointment-12062014.pdf (accessed on 13 March 2016), the ‘Duties and Responsibilities of Court Managers’ have been notified to include establishing 63performance standards applicable to courts, evaluating compliance with such standards, compiling and reporting statistics relating to court functioning, court management, case management, responsive management (access to justice, legal aid, etc.), quality management, human resource management, core systems management, and IT systems management.

23. Prachi Shrivastava. 2015. “‘Court Management’ Degree Proves a Flop in NALSAR MBA: College Now Scrambles to Find Corporate Jobs for 46 MBA Grads”’, Legally India, 19 February, available online at http://www.legallyindia.com/Law-schools/nalsar-hyderabad-mba-program-progress-report (accessed on 27 March 2016).

24. Pramatha Nath Mitter v. High Court of Calcutta, 1961 SCC OnLine Cal 134: AIR 1961 Cal 545.

25. WP (C) No. 1022 of 1989 (SC. A series of orders were passed by the Supreme Court in connection with the same case; see, WP (C) No. 1022 of 1989 reported in (1993) 4 SCC 288, (1998) 9 SCC 245, (1999) 5 SCC 185, (2000) 10 SCC 484, (2002) 4 SCC 247, (2004) 13 SCC 572, (2010) 14 SCC 718, (2010) 14 SCC 730, and (2011) 14 SCC 701.