‘Increase in cases due to more awareness should not be cause for concern’

New laws should be accompanied by a budgetary estimate and financial allocation should be made to meet the expenditure incurred on setting up additional courts to deal with increase in workload.

It is quite universally agreed that the institution of judicial review is a unique contribution made by the American jurisprudence to the art of government. Judicial review seems deceptively simple, but it is one of the most baffling of legal devices. Sometimes it is described mistakenly as a “veto” power over legislation. The constitutional validity of legislation, as well as of executive acts, is decided solely as an incident of litigation between individual litigants ascertaining specific rights. The process of constitutional interpretation is thus an integral part of the ordinary legal process, controlled by precedent and standards of judicial objectivity and propriety, although actually constitutional questions usually raise explosive political issues.

The application of judicial review to determine the constitutionality of the legislation and to review the executive decision sometimes creates tension between the judge and the legislative and executive branch. Such tension is natural and to some extent desirable. The principle of separation of powers is kept in the forefront and the judge should make sure that each of the other branches operates within the boundaries of the law and the judicial review of the constitutionality of legislation and of administrative actions realises democracy.

THE real problem is that the institution of cases in the courts far exceeds their disposal. Though there is a considerable increase in the disposal of cases in various courts, the institution has increased more rapidly.

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High courts increased their annual disposal from 9,80,474 cases in the year 1999 to 14,50,602 cases in the year 2006, the cumulative increase being 48 per cent in seven years, without there being commensurate increase in the strength of judges. However, the institution increased from 11,22,430 cases in the year 1999 to 15,89,979 cases in the year 2006 leading to increase in pendency from 27,57,806 cases as on December 31, 1999 to 36,54,853 cases as on December 31, 2006.

Subordinate courts disposed of 1,58,42,438 cases in the year 2006 as against 1,23,94,760 cases in the year 1999, thereby increasing the disposal by 28 per cent in seven years without any substantial increase in the strength of judges. However, the institution increased from 1,27,31,275 cases in the year 1999 to 1,56,42,129 cases in the year 2006, resulting in the pendency getting increased from 2,04,98,400 cases as on December 31, 1999 to 2,48,72,198 cases as on December 31, 2006.

The average disposal per judge comes to 2,374 cases in high courts and 1,346 cases in subordinate courts if calculated on the basis of disposal in the year 2006 and working strength of judges as on December 31, 2006. Applying this average, we require 1,539 high court judges and 18,479 subordinate judges to clear the backlog in one year. The requirement would come down to 770 more high court judges and 9,239 more subordinate judges if the arrears alone have to be cleared in the next two years. The existing strength being inadequate even to dispose of the actual institution, the backlog cannot be wiped out without additional strength, particularly when the institution is likely to increase and not come down in the coming years.

ALMOST every statute made by the Parliament or state legislatures creates rights and offences which go for adjudication before the trial and appellate courts. Every bill in Parliament or state legislature does have a financial memorandum attached to it and the memorandum mentions the allocations required from Consolidated Fund of the Union/state but it confines itself to the expenditure for administrative purposes. The judicial impact of legislation on the courts is not being assessed in India as is done in the United States where there is a special statute for this purpose. Whenever a new legislation is passed it should be accompanied by a budgetary estimate of its impact and necessary financial allocation should be made in the bill itself to meet the expenditure likely to be incurred on setting up additional courts required to deal with increase in workload and providing infrastructure for them.

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As per the information collected by First National Judicial Pay Commission, every state except Delhi has been providing less than 1 per cent of the budget for the subordinate judiciary whereas the figure is 1.03 per cent in case of Delhi. During 10th Plan (2002-2007) Rs 700 crore have been allocated for priority demands of judiciary which is 0.078 per cent of the total plan outlay. Such meagre allocations are grossly inadequate to meet the requirements of judiciary. The government should, therefore, place adequate funds at the disposal of the high courts for augmenting the infrastructure.

WE will have more litigation in future when those sections of the society who have remained oppressed and unaware of their legal rights become more aware of their rights due to spread of legal literacy, and increased awareness equipped by effective legal aid and advice. Any increase in the number of cases on account of better awareness of the legal rights is a welcome development and should not be a cause of concern. We, however, owe a duty to find suitable ways and means to cope with the increased load of work on the system. Today the judiciary is being increasingly called upon to enforce the basic human rights of the poor and the deprived ones and this new development is making the judiciary a dynamic and important institution of the state. It has to devise new methods, forge new tools and innovate new strategies for the purpose of reaching social justice to the common man. We have to ensure that the fundamental right to a speedy trial does not remain merely a pipedream to millions of people. Delay in disposal of cases not only creates disillusionment amongst the litigants, but also undermines the very capability of the system to impart justice in an efficient and effective manner. Our justice delivery system, in spite of innumerable drawbacks and failings, still commands high esteem and the citizens have placed the judiciary on a high pedestal. Their faith is our strength. No institution can take for granted the respect of the community.

Excerpted from a speech at the joint conference of chief ministers and chief justices at Vigyan Bhawan, New Delhi, on April 8