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Need For Umbrella Organisation For Infrastructural Requirements of Judiciary: Supreme Court Seeks Centre's Response
Mehal Jain
1 Dec 2021 8:12 PM IST
The Supreme Court on Wednesday granted 3 weeks' time to the Union of India for a "radical rethink in terms of infrastructural requirements of the judiciary" and for deliberating on a mechanism for monitoring allocation of funds by the Centre and the States, the disbursal of these funds and their utilisation.The bench of Justices D. Y. Chandrachud, Surya Kant and Vikram Nath was hearing...
The Supreme Court on Wednesday granted 3 weeks' time to the Union of India for a "radical rethink in terms of infrastructural requirements of the judiciary" and for deliberating on a mechanism for monitoring allocation of funds by the Centre and the States, the disbursal of these funds and their utilisation.
The bench of Justices D. Y. Chandrachud, Surya Kant and Vikram Nath was hearing the Imtiyaz Ahmad v. State of UP matter, and deliberating on the issue of judicial infrastructure and judge strength primarily at the state and district level across the country. The Supreme Court had in July called for the responses of all High Courts to the suggestions and recommendations of the National Court Management Systems Committee(NCMSC) on the aspects of judge strength, case load and infrastructure.
"Why don't you think of constituting a sort of council on judicial infrastructure. We are least interested in retaining control of the council. The benefit of having a senior judge or Chief Justice on it would be that they are in the know of things. The composition can be of the Union Minister for Law and Justice, the Secretary, Finance etc. The states can also be given representation- the state finance Minister, the state finance Secretary or the chief secretary of the state so that in relation to each state, the Union of India can then take up what is the devolution of funds to ensure that the state's contribution also comes into the coffers and these funds are actually made available to the High Court. It can also monitor the progress of the use of the funds", said Justice Chandrachud to ASG K. M.Nataraj.
Continuing, Justice Chandrachud observed, "You must create a mechanism where the states are also involved but which does not leave it to individual High Courts to start using their good offices with the governments for seeking funds. There has to be a more systemised monitoring mechanism at the Centre for making available funds, for the dispersal of funds. You can also postulate a mechanism for the creation of judicial infrastructure- Not only for ensuring that funds are released to the high courts for the state judiciary, but we need a proper mechanism for developing judicial infrastructure. We are not saying that you should keep on funding and the judges would be in charge. The mission is to make it efficient. Of course, because they are the consumers of the infrastructure, they work in those institutions, judge know what is needed"
"Ensure that you call a meeting where you are apprised by the State finance secretaries of what is the status of the disbursement of the funds that have been allocated- Your 60% share and the state's 40% share. The allocation, the disbursement and the utilisation in each state. We would like to know for every state what is the extent of the allocation, what is the amount allocated to the states and transferred to the states by the central government, what is the extent of dispersal by the states of the state funds and out of the Central-allocated funds to the High Courts, for the state judiciary, and what is the deficit. We want to ascertain the facts state -wise. Hold a meeting of the state finance ministers and the law secretaries. They will give you a clear indication of what the position is. Ascertain it from the High Courts through the registrars-general", the judge put to the ASG.
'Indian judiciary is a unified one, central legislations also enforced by state courts; Central government cannot hive off responsibility to states"- SC
When the ASG assured the bench that he would put to the government the creation of a council at the central level and infrastructure corporation at the state level and seek instructions, Justice Chandrachud observed, "Don't do it at the state level because once you create it at the state level, you will have the same problem which bedevils the system today. It has to be an umbrella national organisation. Of course, we are a federal nation, when we were students of law, we would always discuss whether India is quasi- federal or federal to the extent of the K. C. Wheare theory . But you have to understand that the judiciary in India is a unified judiciary. Unlike the United States, where state courts deal with state legislation and the federal court deals with federal legislations. So all disputes don't go to the US Supreme Court from the states, It is only when a question of interpretation of the US Constitution is involved. Forget the three Lists of the Constitution for a moment. In India, the model is very different. You have the civil Judge (junior division), the senior civil Judge, the ADJ and the district judges, the High Court and the Supreme Court. All of them deal with central and state law in a comprehensive way. Every district court has the jurisdiction to deal with central statutes as also the state statutes. So we need to look at the judiciary from that perspective that this is not just a problem which can be hived off to the state by just saying that we have made this allocation to the state. On the flipside, when the Centre has taken upon itself the burden of disbursing funds, the results have been very welcome"
Justice Surya Kant also noted, "There is a myth in the central government's mind that the judiciary is a state subject. It is very easy to read out one List from the Constitution and say it is a state subject, but you are always forgetting that whatever laws they are passing in the Parliament and generating litigation, that is also taken care of by the same set of courts. If that be the case, how can the central government run away from the responsibility of its own contribution?"
Justice Chandrachud added, "The example of that is section 138 of Negotiable Instruments Act. The courts of the state judiciary are dealing with 138 cases. That is a central legislation. We are one nation. Central legislations are also enforced by the state courts...There is POCSO, NIA, UAPA, welfare legislations such as Protection of Women against Domestic Violence"
"There are specialised courts for NDPS, there are commercial courts- all these demands have come from the central government, they are a creation of central legislations. Only a very few special courts are on the demand of the states. We have wholeheartedly promoted this pragmatic approach of the central government, we also want that commercial matters should not remain pending for long", said Justice Surya Kant.
"We want to know what the government's thinking is? We are in it together. This is not adversarial at all. We are equally concerned about things like ease of doing business for commercial disputes. As judges, we cannot segregate the commercial side from the civil or criminal side which affects personal liberty. Is it not important that you create some methodology as opposed to the government saying that this is what we are devolving to the states and now the states will contribute 40%? You create some sort of an infrastructure, not just judicial infrastructure, but the modalities for providing adequate infrastructure to the High Court and the district judiciary", Justice Chandrachud told the ASG.
"There is also a problem at our end also. I will tell you one thing- By and large, courts are very conservative in spending funds. That is why you will always see that when budgets are made available also, not just in this case of infrastructure, but others also, they are not utilised. When you give judges charge of money, it is a huge obligation, a burden which is cast on them. It is not our function. We are trained in deciding cases. We are misers when it comes to spending money. If you place 200 crores at the disposal of the High Court, the Chief Justice and High Court judges in charge of the committee are extremely conservative about it because you are handling public funds, you are inviting tenders, awarding contracts. So it is important that this is taken up at an expert level by constitution of an umbrella level committee to ensure that the judiciary's needs are met without placing the burden on the judiciary to spend the funds. This judiciary must only give its assessment that I require an additional Court building in Ahmednagar etc...we don't want to retain control, we would rather that that control over spending, budgeting is placed with people who are experts. Judiciary can indicate its priority because that is what the judge is in the know of", continued Justice Chandrachud.
Justice Surya Kant also added, "The prioritisation can be with the judiciary- That we first need infrastructure in so-and-so place in this state. How to create that infrastructure, whether your own government department or corporation will do or some private entity will do that, that entirely responsibility is yours. We don't want to touch the money. We can only prioritise and tell you"
'High Courts in a quandary as they are left to the state government's whims for funds'- SC
Justice Surya Kant had also noted, "When we create a new post, we need infrastructure, additional manpower. The Apex Court itself is working in some ad hoc rooms, for court numbers 14, 15 and 16, we don't have regular court rooms...The state government's contribution of 40% does not come in until March 30 midnight, so that even the Centre's allocation of 60% funds lapses"
"The 60% is also not placed at the disposal of the High Court, it is placed with the state government", noted Justice Chandrachud.
"Ultimately, have we reached the stage where the state government needs to be taken to task? Or still can we persuade them and they come out with a proposal? It has become an annual function in the High Courts that every time in January-February, high courts are desperate to get the money and eventually, some meetings take place in March and they allow for the release of the funds, which will lapse in the next three days. Do we raise contracts and tenders in the night and invite other troubles?", asked Justice Surya Kant.
"The Gujarat government is very comfortable regarding infrastructure. Uttar Pradesh is one of the worst, it is very hostile. We had a seven judges bench monitoring it. It continued for years and suddenly it was dropped for a year. Again when nothing happened we had to revive it. There are three court buildings which are completely erected but there is no infrastructure, no chairs, no tables, how to make it functional? There are Officers sitting in garages, rented accommodation, temporary sheds", added Justice Chandrachud. "There is no pleasure in forming a bench and pulling up officers and passing orders on the judicial side to get infrastructural support from the government", said Justice Vikram Nath. "It is an unfortunate taking up of judicial time", said Justice Surya Kant.
"We need to have an umbrella organisation. That is the only way you can answer the needs of the judiciary. Leaving it to every state and leaving it to the high courts to depend on the goodwill of the states? It cannot be like this. The High Courts are in serious quandary then!", continued Justice Chandrachud.
"In Maharashtra, the existing building of the High Court is 150 years old. That building was meant for four judges. Now in Mumbai itself, you have an excess of 45 judges in a building meant for four. The matter was taken up suo motu for the construction of a new building. The moment you take up the matter suo motu, the government thinks it is adversarial. Then they say you pass orders and we will file a reply, we will file additional affidavits, rejoinders. They take two months for every additional affidavit. The result is that nothing happens. On the other hand, if you take it up as the present Chief Justice has taken it upon himself, there is a very concrete progress which has been made and things are taking shape with the likelihood of land being allotted to the Bombay High Court. But in terms of infrastructure, why should this be dependent on the individual chief justice? We have somebody who is there for three years, somebody comes for a shorter period...the J1 retires...Infrastructure has to be dealt with perhaps to the extent of even liberating judges from this requirement", reflected Justice Chandrachud.
Continuing, Justice Chandrachud said, "Between 1947 to 1970, the emphasis was very different, the government was focussed on creating basic infrastructure, basic industries, so very little attention was paid to the need to create judicial infrastructure until we took it up in the All India Judges Association case. Now the emphasis has completely changed because there is a realisation that unless you have an efficient system for resolution of disputes, you will not generate investment, you will not attract foreign investment, so the government is also looking at it very differently- In the sense of 'Ease of doing business', which are parameters which determine to an extent the foreign exchange in every country. Today we have to accept that ramping up judicial infrastructure is critical to having more investment, generating more employment, more productivity, and dealing with crimes and civil disputes. But this is a very critical function for the government. And you cannot leave the High Courts entirely to the whims of the state governments"
"Let me give you a concrete example, Mr Nataraj. Technology now is the key for the next five years or 10 years. We want to digitise all the records of the High Courts. We convened a meeting of all the chief justices in the pandemic fairly recently. Every chief Justice said the same thing. They said we are willing to implement but please do not leave us to the mercy of the state government for funds. Please make sure that the funds which are made available as a part of the technology mission of the government of India come directly through the Department of Justice . If you leave us to the state government we will not get any funds. There are governments which are exceptions. Madhya Pradesh has done very well...", said Justice Chandrachud.
"If you are actually giving some amount meant for the judiciary, why can't you create a system where it goes directly to the judiciary instead of being rooted through the state government. And create the same obligations on the state government also to put its funds in a legal entity, a corporation which is meant entirely to create legal infrastructure", added Justice Surya Kant.
Justice Chandrachud narrated his own experience in the Supreme Court E-Committee, "When funds come from the Ministry of finance, they are monitored by the E-committee and department of justice. High Courts come to us through the E committee. If there is any variation in the budgetary regulation, it is placed before the empowered committee of the government of India and the empowered committee clears it in 9 out of 10 cases. They know it is genuine . If the budget was for video conferencing, which you have already achieved and you want it for something else now, the government allows it. There are 17,000 courts today across the country which are computer-enabled, every judicial officer has a laptop, you have a complete set up"
"Look at the benefits which have flowed as a result of the government of India taking this responsibility. The government of India has said fortunately that they will do it even in the future. So why can't we expand it? It is important you create the modality. Don't leave the High Court to go to the states", the judge told the ASG.
"Reflect on the issues. Consult on the advocate level. This is only a free flowing dialogue so we are not giving any peremptory direction today. This has to come through by consensus. We are working towards a better future for the institution. It should be taken up in that spirit. It requires thinking, a dialogue", said Justice Chandrachud to the ASG
The bench then proceeded to dictate its order- "During the course of the hearing, we have heard senior advocate Vibha Dutta Makhija, Amicus Curiae, who has submitted two comprehensive notes following the report of the committee which was headed by Justice A. K. Sikri. Ms. Makhija has assisted us by navigating through the notes prepared by her and the underlying material. During the course of the hearing, various suggestions have come up before the court in regard to adopting suitable modalities for attending to the infrastructural needs of the judiciary. At this stage, ASG K. M. Natraj has fairly submitted that he would require a little time in order to facilitate a deliberation on various aspects of the suggestions which have been exchanged in the course of the dialogue which took place at the hearing. We accede to the request of the ASG for the grant of three weeks time to enable him to respond to the court on the line of thinking of the union government on the issue"
On January 2, 2017, the court had ordered that until the National Court Management Systems Committee (NCMSC) formulates a scientific method for determining the basis for computing the required judge strength of the district judiciary, the judge strength shall be computed for each state, in accordance with the interim approach indicated in the note submitted by the Chairperson, NCMSC. The NCMSC had suggested that the clearance of backlog is not the sole or central basis for determining judge strength, but the following parameters were also to be considered viz. (i) rate of case clearance: the number of cases disposed of as a percentage of institution; (ii) on time disposal rate – the percentage of cases resolved within an established time frame; (iii) pre-trial custody periods wherein an under-trial is in custody pending trial of a criminal case; and (iv) trial date certainty – the proportion of important case processing provisions that are held according to the schedule finalised. On January 2, 2017, the Court had also requested the NCMSC to endeavour to submit its final report by December 31, 2017.
Pursuant to the Court's order of January 2, 2017, the National Court Management Systems Committee (NSMSC) sent its report in five volumes to the Supreme Court Registry through the Secretary General. On January 20, 2020, the Court permitted the Union of India to file its response to the report submitted by the Committee presided over by Justice A K Sikri, former Judge of the Supreme Court. The State of UP and the Delhi Administration were also at liberty to file their responses and suggestions.
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