M J Antony: The mirage of financial autonomy

OUT OF COURT

The neglect of the judiciary in the recent central and state budgets is a recipe for disaster.

The exchange of ideas between the prime minister and the Chief Justice of India at a seminar in Delhi on Sunday attracted wide attention as it represented divergent views of the executive and the judiciary on the affirmative action taken by the courts in recent times. The debate is not new, as it had started as soon as the Constitution came into being. There has been open confrontation on land reform laws, abolition of princely privileges, banking and other vital sectors. And some "perceived tension is a natural and inevitable corollary of a healthy democracy," as the Chief Justice remarked.

However, the more important aspect which did not get adequate attention of the critics and commentators is the Cinderella treatment meted out to the judiciary in the central and state budgets. The country is already suffering from the neglect of health, education and land reforms over the past decades. The disaster awaiting the judicial system due to budgetary starvation is already in sight. The arrears of cases are in crores and the judge-case ratio is abominably low. Jails are overcrowded with "under-trials".

According to a 2000 estimate, the expenditure on judiciary is only 0.2 per cent of the GNP as compared to 4.3 per cent in the UK. More than half of it is generated by litigation itself, like court fees and fines. This revenue is not spent on the courts themselves, but goes to the general pool to be spent on the government's populist schemes.

Almost every chief justice has lamented this state of affairs. Retired Chief Justice Y K Sabharwal had this to say: "Most of the courts function from dingy, dilapidated and outdated structures with poor hygienic conditions even for judicial officers." Another former Chief Justice A S Anand said, "Till such time as financial and administrative powers are vested in the judiciary, the state should not hesitate to lay more expenditure for the efficient management of the judiciary. As the position stands at present, every high court and the judicial system itself is starved of funds." The current incumbent, K G Balakrishnan, has also spoken of this predicament of the judiciary in recent weeks.

Ideas to cure this situation are not wanting. In a 2001 consultation paper on the financial autonomy of the judiciary released by the commission to review the Constitution, the following suggestions were made: The judiciary must be included separately in the Plan by the Planning Commission and separate allotment be made by the Planning Commission and the Finance Commission. The National Judicial Council and the State Judicial Councils and their respective administrative offices are to be established. The National Judicial Council will deal generally with the overall needs of the judiciary. The State Judicial Council will deal with the policy making, budget and implementation of the same, so far as the subordinate judiciary is concerned.

Budgets are to be prepared by the National Judicial Council or the State Judicial Council initially and are to be presented to the executive and finalised at that stage, by mutual and effective consultation, keeping in mind that expenditure on the demands of the judiciary are no less important than other development expenditure and thereafter the budget as finally settled, is to be presented in Parliament or the state legislature, as the case may be. A convention is to be made that the budget estimates so finalised shall be pushed through the Parliament or state legislatures without any downward revision.

Financial advisers from the Comptroller and Auditor-General of India's office should monitor expenditure and keep a check and take suitable action according to normal procedures, in their annual reports. A convention is to be accepted that officers nominated by the Judicial Council can appear before the Public Accounts Committee. If necessary, the relevant rules made by the Speaker/Chairman of the legislatures, may be amended.

Within the budget, the Judicial Council must have full freedom for re-appropriation. This should be made clear in the statute. Again, the Registrar of the High Court need not run to the Secretariat for obtaining sanction whenever the expenditure crosses a particular amount, as is the procedure currently.

The central government 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 centre 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 subordinate judiciary in each state.

Very few of these suggestions have been accepted or implemented in spirit. As a result, judicial officers have to move, almost pan-handling, in the corridors of power. Innocents suffer and poor service conditions breed corruption. This aspect is hardly realised either by the consumers of justice or the critics of the judiciary.