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Sunday, November 28, 2021

Institutional and Financial independence of Bharat’s Judiciary

Number of pending cases in Bharatiya courts is increasing day by day and as on 8th July, 2021 the figure is 4,52,96,802. The breakup is- 3,93,77,495 cases in various district and taluka courts, 58,50,095 cases in various high courts and 69,212 cases in Supreme Court.

Bharatiya judiciary is not functioning with the full strength of its judicial officers as can be seen from the following data.

Sanctioned In position Vacancy Vacancy (%)
Subordinate Judiciary @ 22,677 16,693 5,984 26.39
High Courts *   1,098      649    449 40.89
Supreme Court*        34        27        7 2.06
Total 23,809 17,369 6,440 27.05

(*As of 1.7.2021 –https://doj.gov.in/sites/default/files/Vacancy-Statement-01.07.2021.pdf. @ as of 2018)

As of January, 2016 there is a shortage of 5,018 courtrooms in the subordinate judiciary. There are 15,540 court rooms whereas the sanctioned strength of judicial officers is 20,558! There is a shortage of 8,538 residential quarters for accommodation of judges in the subordinate courts.

As per the Ease of Doing Business 2020  report published by the World Bank in 2016, it was estimated that judicial delays cost Bharat around 0.5% of its GDP annually–Rs 50,387 crore ($7.5 billion). The inability of the system to deliver timely justice and maintain the rule of law has led to a rise in violence which had cost Bharat an equivalent of 9% of its GDP, according to the Institute for Economics and Peace, an Australian think-tank in its report in 2018.

Therefore, one can infer that strengthening the infrastructure by increasing the court rooms and filling up the judicial vacancies will significantly reduce the huge volume of pending cases in the courts across the country (ofcource the judiciary also has to cut down its annual holidays drastically). This requires adequate budgetary support by both the centre and the states. Bharat spends less than 0.1% of the GDP on the Judiciary each year.

The average national spending on the judiciary during the period 2011-12 2015-16 was 0.08% of the gross domestic product (GDP), says the India Justice Report which was published by Tata Trusts, a philanthropic organization, in collaboration with six organizations. Though the combined expenditure by the union and state governments on the judiciary grew by 53% between 2016-17 and 2018-19, states contributed the biggest share, around 92%, according to a report by the Centre for Budget, Governance and Analysis (CBGA) and DAKSH.

While highly inadequate spending on the judicial infrastructure is a fact, the other side of the story that even the inadequate budgetary allocations made by the government are not fully utilized in many instances is also equally true.

In 2010, the 13th Finance Commission had given a special grant of Rs 5,000 Crs spread over five years to both the Union and state governments to be utilized for various activities in judiciary whereas according to the ministry of law and justice at the end of the five-year period by 2015, only Rs 1,010 Crs, (20%) was ultimately utilized.

The 2020-21 Union budget gave reduced allocation of funds to different divisions of the Judiciary. The allocation for autonomous bodies which includes the National Legal Services Authority, National Judicial Academy, and the Indian Law Institute and others were cut from Rs. 159 Crs in 2019-20 to Rs. 117 Crs. Similarly, the funds for the creation of infrastructure facilities for the Judiciary was reduced from Rs. 990 Crs to Rs. 762 Crs. However, in the 2021-22 Union budget the Law and Justice Ministry received an overall allocation of Rs.2,645 Crs compared to Rs.2,200 Crs in 2020-21.

The apex court’s budget is prepared by its registrar general, which is forwarded by the law ministry to the finance ministry. The same process is followed by high courts who forward it to the state governments. However, high courts also have the additional responsibility of preparing budgets for lower courts within their jurisdiction.

The primary responsibility of infrastructure development for the subordinate judiciary lies with the state government. The central government also releases additional funds under the Centrally Sponsored Scheme (CSS) for development of judicial infrastructure. The law department sanctions establishment of new courts and the home department releases funds for creation and maintenance of judicial infrastructure.

National Commission to Review the Working of the Constitution (NCRWC), in Chapter 7 of its final report submitted in March, 2012 — contains the following among several other recommendations.

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.

However, consequent to the abolition of the erstwhile planning commission in August, 2014 the distinction between the plan and non-plan expenditure is dropped.

The 14th Finance Commission has dispensed with most centrally sponsored schemes and special grants (which also includes grants to judiciary). In line with this the proposal of the Department of Justice for additional funds of Rs 9,749 Crs was responded by the 14th Finance Commission in its recommendation saying, ‘The Commission in its report has endorsed the proposal of the Department and urged State Governments to use the additional fiscal space provided by the commission in the tax devolution to meet such requirements.’

The Memorandum to the 15th Finance Commission on Budgeting for the Judiciary in Bharat submitted by the Centre for Budget and Governance Accountability (CBGA) and DAKSH In December, 2018 rightly observes that,

“there is a vicious cycle operating here so that a small number of working judges are pre-occupied with disposing of cases pending before them and hence are unable to focus their attention on infrastructural deficits of the court system. The lack of judicial officers results in lack of proper planning for utilising available funds. This leads to delays in submitting Utilisation Certificates (UCs) which, in turn, results in withholding/confiscation of successive instalments of already budgeted funds. All these results in under-utilisation of funds, creating an erroneous impression within the bureaucracy that funds for the Judiciary are in excess.”

Centre for Budget and Governance Accountability (CBGA) and DAKSH in December, 2018 in its Memorandum to the 15th finance Commission recommended for setting up of Reform and Research offcies, Secretariat for Judicial Appointments, Technological initiative, Budgeting practice initiatives and modernization of tribunals in all the states and Supreme Court by earmarking funds for Rs.1,200 Crs.

However, the 15th finance commission in its report has recommended for Rs.10,425 Crs as grants for the judiciary as against the overall proposal sent by the Department of justice for Rs.19,312 Crs.

The Policy and Action Plan report of the National Court Management Systems (NCMS) committee formed by the SC (2016) states: “If the institution of Judiciary is not independent resource-wise and/or in relation to funds, from the interference of the Executive, judicial independence will become redundant and inconsequential. Executive cannot be allowed to interfere in the administration of Justice by holding back funds for development of judicial infrastructure and expansion of Courts and declining right to appoint sufficient staff, etc.”

Institutional independence and financial independence of Judiciary

The Syracuse Draft Principles on independence of the Judiciary formulated by a Committee of Jurists and the International Commission of Jurists at Syracuse, Sicily on 25th – 29th May, 1981 emphasize the importance of independent judiciary in the following Articles as under:

Article 1: The Universal Declaration of Human Rights (Article 10) and the International Covenant on Civil and Political Right [Article 14(1)] proclaim that everyone should be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. An independent judiciary is indispensable for the implementation of this right‖.

Article 24:- To ensure its independence the Judiciary should be provided with the means and resources necessary for the proper fulfillment of its Judicial Function.

Article 25:- The budget of the Judiciary should be established by the competent authority in collaboration with the judiciary. The amount allotted should be sufficient to enable each court to function without an excessive workload. The judiciary should be able to submit their estimate of their budgetary requirements to the appropriate authority.

The Universal Declaration of the independence of Justice (Montreal Declaration) adopted in the First World Conference on the Independence of Justice held at Montreal (Quebec, Canada) on June 10th, 1983 contains the following major clauses:

2.40: The main responsibility for court administration shall vest in the judiciary.

2.41: It shall be a priority of the highest order of the state to provide adequate resource to allow for the due administration of justice, including physical facilities appropriate for the maintenance of judicial independence, dignity and efficiency, judicial and administrative personnel; and operating budget.

2.42: The budget of the courts shall be paid by the competent authority in collaboration with the judiciary. The Judiciary shall submit their estimate of the budget requirement to the appropriate authority.

An integral part of ‘Independence of Judiciary’, as a constitutional value is the ‘Institutional Independence’ i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy. As rightly said by G.Gregg Webb and Keith E. Whittington “An effective power of the purse gives the legislature a powerful trump card when disagreements arise between it and other branches of government, one that is so potent that it can threaten judicial independence” (Webb and Whittington 2004).

CJI Mr. N.V. Ramana, while delivering the 17th Justice PD Desai Memorial Lecture on the title ‘Rule of Law’ on 30th June, 2021 said the concept of law is defined by four principles, mainly strong and independent judiciary, clear and accessible law, equality before law, and people’s right to participate in the creation and refinement of laws. What CJI says as above is possible only when the judiciary has institutional independence as well as financial independence.

Supreme Court has rightly said that in the case of state of Rajasthan Vs Shri Ramesh Chandra Mundra & Others in Civil appeal No. 4517 of 2004 while delivering its judgment on 11th July, 2019

“An integral part of ‘Independence of Judiciary’, as a constitutional value is the ‘Institutional Independence’ i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy.”

There is a dire need to set up Judicial Councils (both at the apex level and state levels) as recommended by NCRWC and create permanent infrastructure for judiciary as suggested by Centre for Budget and Governance Accountability (CBGA) and DAKSH in their Memorandum to the 15th Finance Commission in order to take care of the research activities, judicial appointments, budget preparation for judiciary etc., to strengthen the institution of the judiciary. Or alternatively the Judiciary should outsource the budget preparation to a professional agency by hiring their services.

Similarly the Law Ministry should evolve a mechanism of budget-making process based on recommendations by the judiciary and public inputs and present the same either separately from the general budget (i.e., both union budgets and State budgets) or as a separate annexure to it. This would bring greater transparency in the budget preparation and allocation of resources to the judiciary in addition to enhancing the independence of the judiciary from a financial perspective. Let us hope our law makers will address this problem at an early date.

Reference:

  1. https://pib.gov.in/PressReleasePage.aspx?PRID=1693868
  2. https://www.icj.org/wp-content/uploads/2016/02/Montreal-Declaration.pdf
  3. https://njdg.ecourts.gov.in/njdgnew/index.php
  4. https://njdg.ecourts.gov.in/hcnjdgnew/
  5. https://main.sci.gov.in/statistics

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Dr. B.N.V. Parthasarathi
Ex- Senior Banker, Financial and Management Consultant and Visiting faculty at premier B Schools and Universities. Areas of Specialization & Teaching interests - Banking, Finance, Entrepreneurship, Economics, Global Business & Behavioural Sciences. Qualification- M.Com., M.B.A., A.I.I.B.F., PhD. Experience- 25 years of banking and 14 years of teaching, research and consulting. 100 plus national and international publications on various topics like- banking, global trade, economy, public finance, public policy and spirituality. One book in English “In Search of Eternal Truth”, two books in Telugu and 20 short stories and 27 articles published in Telugu. Email id: [email protected]

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