Judging the right number

We are a billion. Is this a relevant criterion for calculating the number of judges required in our courts to ensure the constitutional pr...

We are a billion. Is this a relevant criterion for calculating the number of judges required in our courts to ensure the constitutional promise of speedy justice? Or should we continue with the traditional formula of number of cases filed in a court and the numbers still left after disposal, on the basis of a fixed norm per judge. On this issue, the Supreme Court on May 4, has issued notices to all state governments and Union Territories. The chief secretaries of each state have been directed to file their replies by July 4. Justices S.P. Bharucha, S.M. Quadri and Shivraj Patil have given this direction on the manner in which judge strength is to be fixed for all courts and the strict time table to be followed for filling in High Court vacancies. This wake up call to all state governments on the issue of providing timely justice to all comes on a public interest litigation filed by an advocate, S.N. Bhardwaj.

The issue about population vs pending cases criteria for judicial manpower planning, arose when the Union government told the Supreme Court that it had rejected the 120th Law Commission report. This was in response to Bhardwaj8217;s plea that the apex court direct the Union government to implement the report. The advocate pointed out in his petition that on December 10, 1988, he had written to the then President R. Venkataraman, the Union law minister and the chief justice of India for the implementation of the July 1987 report of the Law Commission. No one responded. Then on September 23, 1995, he reminded the then President, S.D. Sharma, for implementation of the report. He requested that the President8217;s call for a report from the Prime Minister, discuss the matter with the Opposition leader A.B. Vajpayee on the question of increasing five-fold the strength of judges in the country. On December 5, 1995, a director in the Union law ministry8217;s department of justice replied that the government, after consideringthe Law Commission8217;s report, had decided that the filing and pendency of cases is more relevant than the population criterion alone.

Accordingly Bhardwaj, on April 5, 1997, tried his luck with another letter to the then President, Prime Minister Deve Gowda, BJP President L.K. Advani, the former prime minister, Chandrashekhar, and others. Receiving no response he filed a petition before the apex court on July 24, 1998.

The chief secretaries of state and Union Territory governments have now to answer as to why the Law Commission report8217;s recommendation, that over a maximum period of ten years the number of judges be increased five fold so that by the year 2000 India commands at least the ratio that the USA had in 1981, was not followed up. Pointing out that expenditure on the judiciary forms an infinitesimally small part of the tax receipts of each state, which include court fees, the report recommended the working out of an annual investment plan for the judiciary.

This plan should take into account the expenditure on salaries, houses and facilities for judges, the court staff and the physical infrastructure. The report stated that, politically speaking, the Indian state 8212; since the colonial period 8212; has consciously understaffed the judiciary. After independence, this colonial situation has been allowed to continue. Hence, in 1987, India had only 10.5 judges per million population while Australia had 41.6, Canada 75.2, England 50.9 and USA 107 judges per million.

The question that the public interest litigation raises is whether the Union government will manage to escape its responsibility in the entire matter while the states are held to account. In 1977, the Constitution was amended Article 39A in such a manner as to make it obligatory on the part of the State to ensure 8220;that the operation of the legal system promotes justice8221;.

The Union government has now been asked by the apex court as to what it had done since 1977, vis-a-vis Article 39A. In its reply it has simply shifted the burden to the states by declaring that the implementation of the Law Commission8217;s report will need for a billion population, 50,000 judges against the present 13,415 8212; mainly in the district courts. The expenditure for this could run into several crores. It is now, 23 years after Article 39A became law and 13 years after the Law Commission8217;s report, contemplating a conference of chief justices and chief ministers on this issue. The reply itself took about four month to fructify.

Story continues below this ad

In the 1993 Supreme Court Advocates on Record vs Union of India case, the majority of a nine-judge bench had held that a direction can be issued to assess the felt need and fix judge strength in the High Courts to fulfil the right of speedy justice. The Union government has thus far chosen not to respond to this issue.