M J Antony: Plainspeak from India's new Chief Justice

OUT OF COURT

He not only discussed the chronic problems ailing the judiciary, but held forth hopes of drastic reforms

The Supreme Court tradi tionally takes a look at the balance sheet of the functioning of the judiciary in the country in the last week of November. It was on November 26, 1949 that the Constitution was adopted. The speech of the new Chief Justice Y K Sabharwal not only discussed the chronic problems ailing the judiciary, such as the huge arrears and lack of funds and infrastructure, but also held forth hopes of drastic reforms in some vital areas.

He declared that commercial arbitration, international arbitration and intellectual property matters will be given high priority in future. A committee under the chairmanship of Justice S B Sinha of the Supreme Court is finalising a national policy on alternative dispute resolution mechanism that will help decongest the regular courts.

Another idea mooted by him is the establishment of additional courts specifically to try complaints of issuing cheques without adequate balance. "The present state of affairs defeats the very object with which the provision was inserted in the Negotiable Instruments Act," according to him.

The coming year could see dramatic improvements in the computerisation of courts in the country. Last month, the prime minister had launched the National Policy on Computerisation of the Justice Delivery System and an action plan for 2006. According to the data collected by the E-committee, there are 1,400 courts that are located in 2,086 towns across the country. Next year the committee will establish a national judicial data centre and a data grid. Web-based interlinking of all the courts and development of state-specific customised application software with local language facility are other targets for the coming year.

All these would not be effective unless the rules and procedures are changed according to the requirements of the times. Therefore, the emphasis will be on this Herculean task as well as on the full use of modern technology. Cases will be placed on fast track, normal track and slow track, according to their nature. The Chief Justice noted the common complaint of the litigants that adjournments are given by the courts for the asking. "A no-adjournment culture has to be developed," he underlined, and added that "despite the ingenuity of the lawyers, a lot also depends upon the approach of the courts."

In the context of delays in the courts, the Chief Justice warned the legal profession that the number of cases pending in the high courts was 34.5 lakh and subordinate courts 2.5 crore. In a few years, the figures will double if drastic steps are not taken.

He observed: "The number of cases filed in the Supreme Court is staggering. No other apex court in the world takes up so many cases as are taken up by the Supreme Court of India. The same is the position of the number of cases filed in the high courts and subordinate courts."

The main cause for this state of affairs is shortage of judges. The ratio of judges per million population is the lowest in the world. India has 10.5 judges per million. The corresponding figure two decades ago for England was 50.9, Australia 57.7, Canada 75.2 and the US 107. The Chief Justice thinks that the blame for judicial delays could not be laid at the doors of the judiciary; the problem was created more by the executive and the administrative apparatus.

One of the reasons for this situation is the financial crunch the judiciary faces. The executive and the legislature control the purse strings. Courts take a low priority in their view. The high courts have the power of superintendence over the judiciary, but they do not have any financial or administrative power to create even one post of a subordinate judge or staff. They cannot acquire any land or building for the courts, nor implement modernisation plans.

In this context, the Chief Justice made a significant demand: "The chief justices who are constitutional functionaries know the needs of the judiciary of the state. They need to be given financial and administrative power, vis-a-vis state judiciary, by transfer of financial as well as administrative powers, from the executive to enable them to function effectively." There was an instance of a chief justice asking for the creation of 350 posts of subordinate judges and the state government sanctioning 10 in one year and another 10 the following year.

Another problem pointed out by the Chief Justice is that the low salaries of high court judges made appointments to the bench difficult as good lawyers make much more in fees and do not want to don the robes of a judge.

The situation in the subordinate judiciary is worse, as according to one news report, the staff below the judges sometimes draw more wages than the judge. The All-India Judges' Association has been agitating their case for years in the Supreme Court, but most state governments have been reluctant to comply with the orders. They plead financial constraints, whereas the scams in their governments run into crores. Therefore, the straight talk by the Chief Justice has not come a day too soon.