Although the judiciary is blamed for the delay in dispensing justice, it is the government that is at fault

While the Chief Justice of India inaugurated a Fast Track Court (FTC) at Delhi and exhorted the High Courts to act likewise, a Bench of the Supreme Court, in Brij Mohan Lal vs Union of India and Others, 2005, allowed the Central and State governments to close down over 1,500 FTCs on the ground that funds were not available.

FTCs were started by the Central government pursuant to the observations of the First National Judicial Pay Commission, 1999, the 120th Report of the Law Commission on Manpower Planning in the judiciary, the report on Crime in India published by the National Crime Records Bureau and the lamentations of every Chief Justice of India who used the Law Day address to highlight the mounting arrears and the paucity of funds available to the judiciary. India has about 11 judicial officers per million population as compared to Australia’s 42 and Canada’s 75 ; the United Kingdom has 51 and the United States has 107 per million population. To deal with the current volume of litigation and eliminate arrears, India needs to appoint five times the present strength of judges. The Central and State governments, however, treat the judiciary as a pariah and pretend not to understand how important this institution is for the survival of democracy itself.

Demeaning rules

When judges were appointed to the FTCs, their service conditions were settled by the framing of rules which were done in consultation with the High Courts of the States. Regrettably, demeaning rules were framed treating these quite talented judicial officers as if they were purely temporary employees with no right to be regularised in the cadre and their services were capable of being terminated at will without notice. By framing such rules, the State governments undermined the independence and dignity of the judiciary. These FTCs disposed of 33 lakh cases under quite onerous targets given to them. Relying on these unfortunate rules, the Supreme Court upheld the sacking of over 1,500 trained judicial officers by treating their request for regularisation in the same manner as an ad hoc government employee. Relying on the unfortunate judgment in State of Karnataka vs Uma Devi and Others, 2006 where ad hoc government employees who had served for decades were declared to have no rights at all, the FTC judges found themselves age barred for recruitment elsewhere and unable to practice under the Bar Council of India rules in any court other than the High Courts of the States or the Supreme Court of India.

The winding up of these courts despite their fair performance and the huge arrears that needed to be tackled was justified by the central government on the incredible argument that the 13th Finance Commission had recommended a grant of Rs.5,000 crore for improving the justice delivery system and that out of this Rs.2500 crore was to be spent on courts working in shifts, Lok Adalats, the Legal Services Authorities, Alternate Disputes Resolution and the judicial academies for trainings. Thus due to the shift in perspective, money could no longer be spent on FTCs. The Supreme Court found this argument “strange” and said that “the state cannot be permitted to advance an argument of financial constraints in such matters. The state cannot, in an ad hoc manner, create new systems while simultaneously demolishing existing systems when the latter have shown achievement of results.” After saying this, the Supreme Court inexplicably accepted the argument of government that the court should not interfere since the FTCs are already closed down and the Supreme Court merely requested the Central government to “reconsider allocating some amount” for absorbing some of the FTC judges in the regular judiciary.

Direction in two cases

This submissive surrender to the executive was contrary to S.P. Gupta vs President of India and Others, 1981 where it was held that it was “a primary duty of the state to provide for fair and efficient administration of justice.” The Court held that it was the duty of the President under Article 216 of the Constitution to appoint a sufficient number of judges and that the Courts had the power to direct the executive to do so. In the second All India Judges’ case (1993), the Court directed the government to implement the recommendations of the Justice Shetty Commission Report on service conditions for judges so as to maintain the independence of the judiciary.

In the Third All India Judges Association case, the Supreme Court felt that the “time has now come for protecting the judicial system” by directing an increase in the judges strength from 13 per million population to 50 judges per million.

The mere fact that the FTCs have been discontinued should not deter the Chief Justice of India from reviewing this judgment on a Constitutional Bench and directing the Central and State governments to increase the budgets for the judiciary five times and appoint thousands of judges and establish thousands of courts. The judiciary has for many years taken the blame for delay in the dispensation of justice and the arrears in the courts. The time has come for the blame to be placed correctly — at the door of the Prime Minister of India.

(Dr. Colin Gonsalves is founder, Human Rights Law Network and Senior Advocate, Supreme Court of India.)