Punishing Peter for the sins of Paul!

Spectacular example of Judicial Over-reach by the Allahabad High Court

The line which separates judicial activism from judicial over-reach is indeed thin yet conspicuous. While judicial activism is hailed by all consumers of justice, adventurism by the courts often undermines the credibility of the institution of justice and brings to it palpable disrepute. The recent judgment of the Hon’ble Allahabad High Court in Umesh Kumar Singh and others v State of U.P., ordering all government employees of the state to send their children to government schools is a spectacular example of judicial over-reach. This uncalled–for adventurism has the potential to upset the fine balance between the three organs of the State, the balance often referred to as the principle of separation of powers.

The Concern of the Court

The learned Single Judge of the Allahabad High Court was of the opinion that since all the primary schools within the State of Uttar Pradesh run by the government were in abysmal conditions, therefore it was necessary for the court to take judicial cognizance of it. The court’s view was that since 90% of the children of the state who were studying in these schools were being imparted sub-standard education, therefore some path-breaking measures had to be adopted to bring about a metamorphosis. Aiming for a total reformation of the pitiable conditions in these schools, the court ordered all government employees to mandatorily send their children to these schools run by the government, failing which they would be fined and denied promotions. The premise which weighed with the court was that if all the government employees send their children to government run primary schools, the conditions in these schools would ameliorate within no time.

Fallacious Line of Reasoning adopted by the Court

It must be stated at the very outset that the objective behind the judgment is laudable and praiseworthy. Nonetheless, the court’s lack of far-sightedness didn’t allow it to gauge that such an endemic, structurally inherent and ruthlessly engineered problem cannot get effectively addressed by a knee-jerk reaction. The reasoning which has been adopted by the court in coming to its conclusion is not only fallacious but borders on perversity. How can the children of bureaucrats/government servants be made to suffer for the wrongs done by their parents or the predecessors of their parents? This amounts to punishing Peter for the sins committed by Paul. Moreover, where is the evidence to suggest that conditions will ameliorate in all the primary schools if children of bureaucrats study in them? The court’s reasoning is based on conjectures and surmises and will result in an exercise in futility since serious issues like absenteeism by teachers, lack of proper infrastructure and skewed student-teacher ratio haven’t been addressed nor any mechanism has been put in place to address them. A perusal of the judgment goes to show that it is devoid of any sound reasoning and has been passed in a cavalier manner without proper application of judicial mind. Moreover, the judgment is more in the nature of a diktat especially on those people (read children) who were not even a party before it and thus constitutes an egregious infraction of natural justice principles. The court cannot ride roughshod over the choice of an individual to study wherever he or she desires.

Can the court legislate?

Another reason why this judgment is a classic example of the judiciary transgressing upon the domain of the Executive is because there was no law mandating the government employees to send their children to government schools. So, the court has clearly legislated in this case which it ought not to.

The Supreme Court as the final interpreter of the Constitution has through interpretation of Article 32 read with Articles 141 and 142, given to itself the power to legislate in exceptional cases whenever there is a legislative vacuum (See Vishaka v State of Rajasthan). Such power according to the court is inherent in Article 32 to mould reliefs and devise new ways of doing justice. One may argue that the High Court in the exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution can also legislate. Even assuming this is so, exercise of such powers flies in the face of the principle of separation of powers – a basic and inalienable feature of our Constitution and upsets the delicate balance between the different organs of the State (See Kehvananda Bharti v State of Kerela). To say that the judgment will operate proprio vigore (by its own force) without any backing of a statutory/executive law is in the face of the separation of powers principle.

Should the judges be apathetic to the sorry state of affairs?

It is nobody’s contention that the judiciary as the protector of fundamental rights of citizens must keep mum when such inalienable rights are being impinged upon due to the apathy of the Executive. A judge empowered with the powers of contempt can treat such violations/apathy with judicial severity but forcing children of bureaucrats to go to government schools and giving them a Hobson’s choice is a punishment in the extreme and cannot be done without breaching the injunction of separation of powers principle. The court therefore could have done the following things:
Firstly, the matter could have been converted into a Public Interest Litigation as such orders when they are brought to life pursuant to a PIL matter are more acceptable to the society. Moreover, PIL matters allow room for more meaningful discussion and cooperation. Secondly, the court hearing the matter could have appointed a Senior Advocate as Amicus Curiae to assist the court which would have allowed the Petitioners, the Respondents, the Amicus as well as the Judges to work on the same side of the team in a non-adversarial manner. Thirdly, the court could have invited suggestions from the government through its Standing Counsels as well as the Petitioners and the Amicus and then implemented the suggestions step-by-step to improve the existing conditions of the schools. Any apathy by the bureaucrats could have been dealt with severity by using the powers of contempt. This would have absolved the court from all the criticism it is receiving from different quarters.

Consequences of Judicial Over-reach

Alexander Hamilton once remarked that out of the three wings of the State, the Judiciary is the least dangerous branch. This is because while the Legislature has the sword and the Executive has the purse, the Judiciary hath only judgments. No more are the words of Alexander Hamilton a truism. Through judgments, judges have often taken upon themselves the task of setting every wrong right.

A judge, in the words of Justice Cardozo, is not a Knight errant, roaming at will in pursuit of his own ideal and beauty. The underlying warning given by Justice Cardozo was that judges must show judicial discipline, i.e. not transgress upon the territory of the Executive and the Legislature, for the simple reason that such over-reach can result in a counter-reaUmesh Kumar Singh v State of U.P.

ction from the other wings and prove fatal to judicial independence. Judicial discipline envisages that judges must respect the wisdom of the Executive and the Legislature in confronting the problems of the society and show restraint by not imposing its own solutions upon other wings – a warning which has been completely ignored by the Allahabad High Court in

 Anubhav Verma

Consultant-at-law

A DANIEL COME TO JUDGMENT! YEA, A DANIEL! [1]

In our country, the vexatious legal system tends to erode the common man's faith in the judiciary. There is no guarantee that a case would be decided even if given a time-period of a decade.[2] Those seeking justice have to go through extreme hardships. Long ago in the year 1999, Justice A.S. Anand (the then CJI) narrated in the courtroom the poignant story of one Mr. Ajay Kumar Ghosh, (a resident of Kolkatta) who had been picked up by the West Bengal Police a few months before the 1962 Indo-China war and had spent the rest of his life in prison and subsequently in a hospital ward without even a trial. Percentage of under-trials in India is 73% of our total jail population according to a Parliamentary Report of 2002.[3] The Report also accounted over 5 lakh cases in mostly all high courts as being over 10 years old. Also, it was cited in the report that there were cases pending since Independence - 1950 case in Madhya Pradesh High Court, 1951 case in Patna High Court, 1955 case in Kolkata High Court and 1956 case in Rajasthan High Court. This is a matter of serious concern as it is not only traumatic but also tends to alienate the parties from the judicial system. This view has been endorsed by many in the judicial system themselves. Well known lawyer Prashant Bushan had gone on record to say - “It’s a completely collapsed system. This country only lives under the illusion that there is a judicial system.”[4] Retd. Chief Justice of Delhi High Court A.P. Shah said in a report that it would take the court approximately 466 years to clear the pending 2,300 criminal appeals cases alone. A similar view was held by Andhra Pradesh High Court judge Justice V.V. Rao. He opined that our judiciary may take around 320 years to clear the arrears which had piled up to 31.28 million cases throughout the country.[5] However, it is my submission that we don’t have to wait for centuries to have this backlog cleared. Serious commitment coupled with a proper work culture and honesty can solve the degree of delays which is promoting cynicism about the judicial system.

PRESENT SCENARIO OF BACKLOG IN INDIA:

Going by the statement of the former Union Law Minister Mr. Ashwani Kumar on March 7, 2013 in Lok Sabha during the Question Hour, there are over 3 crore cases pending in various courts all across the country and over 66,000 cases pending in the Supreme Court itself. [6] As on 1^st March 2013, exactly 66,809 cases are pending in the Hon’ble Supreme Court. [7] The High Courts are doing no better with over 43 lakh cases pending as on December, 2011.[8]

The right to live with dignity is guaranteed by Article 21[9] of the Constitution of India which includes the right to a speedy trial. Though the constitutional philosophy of right to a speedy trial was propounded almost four decades ago, the goal sought to be achieved is still a distant dream.[10] In Central Coal Fields Ltd. And Anr. vs Jaiswal Coal Co., [11] the Supreme Court observed  - "Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal rights."[12]

PRESENT STRENGTH OF JUDGES IN INDIA:

One prime reason for the delay in clearance of backlog is the acute shortage of judges. Since the colonial period the judiciary has been under-staffed. This scenario has continued even after Independence with the result that a nation of over 1.2 billion people has a current judges per million population ratio approximately around 15.5 (i.e. 15 judges for every million people of India). Moreover, at any given point of time, around 25-30 per cent of these posts lie vacant. Let us for a moment compare this position with a few other countries. When India in the year 1981 had a strength of 10.5 judges per million population, the other countries had a much higher ratio – Australia with 41.6 judges per million population; Canada had the rate of 75.2 judges per million population; U.K had a ratio of 50.9 judges per million population and U.S.A. had an overwhelming ratio of 107 judges per million population.  The Law Commission therefore in its 120^th Report[13] recommended that the strength of judges per million population be increased from 10.5 to 50 per ten lakh population. Similar suggestion was given by the Parliamentary Standing Committee headed by Shri Pranab Mukherjee (the present President of India) in its 85th report which was submitted to the Parliament in February, 2002. The Hon’ble Supreme Court in its judgment All India Judges’ Association & Ors Vs. Union of India & Ors[14] had directed the Central and State Governments[15] that an increase in the subordinate judiciary from the existing 10.5 per 10 lakh people to 50 judges per 10 lakh people should be reached within a span of five years. But sadly our progress has not been good. From 10.5, we have only reached the ratio of 15.47 per million judges per million population as of now.[16]

BLAMEGAME BY JUDICIARY AND EXECUTIVE FOR DELAY IN CLEARING BACKLOG:

 The former Union Law Minister Ashwani Kumar on 7^th March 2013 on the floor of Lok Sabha had cited the low strength of the judges as the prime reason for the delay. He also blamed the judiciary for the delay in appointment of judges because as per the current method of appointment of judges, which has been in place since the 2^nd Judges’ Case (Supreme Court Advocates-on-Record Association v. Union of India)[17] and Opinion of the Supreme Court in the Presidential Reference (Special Reference No.1 of 1998)[18], it is the judges themselves who decide as to who will adorn the benches.[19] According to him, there is often a delay by the judiciary (both in the Supreme Court and the High Courts) in giving recommendations of names for appointment. He also pointed out that they are unable to get good talent from the Bar as a lot of senior lawyers are unwilling to become judges. The reason being often a junior lawyer practicing in the court is elevated to the position of a judge while a senior lawyer is not even considered. There is too much secrecy in the collegium system. This is true to some extent. Our Constitution has adopted a system of checks and balances under articles 124(2) and 217(1) for appointment of Judges of the higher judiciary where both the executive and the judiciary have been given a balanced role.[20] The present method of selection of members of the higher judiciary is flawed and seems to have outlived its utility. The Law Commission in its 214^th Report[21] in 2008 had recommended that some kind of a re-think is required regarding the present system of appointment of judges to the High Court and the Supreme Court. We finally have a new system in place but it is yet to be seen whether pendency will be brought down if the appointment mechanism is completely revamped.

An attack on the Executive for the delay in adjudication of cases has been made by Justice Sudhir Agarwal of the Allahabad High Court in one of his articles.[22]  According to him, those who believe that piling of cases results because of judges not working, judges not sitting in time in the court, judges rising early or deciding to avoid contentious matters, long holidays, etc. are nothing but thoughts of uninformed persons and these thoughts are given air by the political persons as well as the Executive to undermine the judiciary. He presented an illustration to prove his point – About two lakh cases were filed annually in the Allahabad High Court in the last 2-3 years. The judges have exactly 210 working days in a year. Therefore, on an average less than a thousand cases are filed per day. It is believed that judges decide cases according to their capacity and also a lot depends on the facts of any particular case. Some judges may decide 40-50 cases per day whereas some may decide only 5-10 cases per day (though only 1 or 2 criminal appeals can be decided in a day). So, if only 60 judges[23] of Allahabad High Court working every day decide 20 cases per day, it would bring the total number of decided cases to 1200. Therefore, going by this rate, the judges at Allahabad High Court can decide more cases than are filed. Thus there should be no problem of delay in deciding cases. This view is supported by the fact that the Supreme Court disposed of 79,500 cases in the year 2010 whereas the total no. of cases that were filed in that year was 78,280.[24] But as on 31^st March 2009, a total of 9,35,425 cases were pending in the Allahabad High Court. [25] So where does the problem lie?

In his view, the problem lies with the Executive, i.e. the State, the main litigant as it fails to cooperate with the judges. Cases get adjourned on whims and fancies of government advocates as most of the times counsels plead non-preparation as an excuse. Affidavits are not properly filed by them which often results in wastage of precious time of the court. Small matters which may be decided then and there get delayed as the stand of the government is not informed to the court. And when some courts after waiting for a reasonable period of time decide the matters ex-parte, the government and its authorities raise a hue and cry for not being given an opportunity of being heard. He also blamed the State for taking extraordinary time in providing funds for betterment of infrastructure. It is to be submitted here that inhuman conditions of working seriously hamper the functioning of judicial officers.

WHAT CAUSES THE BACKLOG?

This essay proceeds from the standpoint that the problem of backlog of cases is not just the failure of any one particular body. There are many reasons responsible for the pendency of cases. Firstly, a recent study has indicated that the number of new cases has a direct relationship with the increasing literacy rate and awareness among the people regarding their rights. This view finds support by the fact that Kerela which has a high literacy rate of 93.91 percent[26] adds 28 new cases per 1000 population per year whereas Bihar with a literacy rate of just 63.82 percent[27] adds just 3 new cases per 1000 population.

            Secondly, there are 895 sanctioned positions of the High Court Judges and 617 Judges are in place, leaving a vacancy of 278(around 31 percent).[28] The Supreme Court also often fails to work with its full strength. The sanctioned strength of the subordinate judiciary is 17,800 judges; though at present the vacancies amounts to 30% of the total sanctioned strength.[29] This is a highly deplorable and unacceptable position. For this both the judiciary and the executive are to be blamed. The judiciary is to be blamed for not recommending good names to the Executive. This has serious repercussions as it causes a lot of bad blood among senior lawyers therefore forcing them not to come forward to become judges. Thus, talent gets compromised. The Government, too, does not lag behind. Lack of proper infrastructure, funds, libraries, typists etc. adds on to the problem.   

            Thirdly, the attitude of lawyers in taking frequent adjournments is highly condemnable. Lawyers must realize that such adjournments, even if they are in favour of their clients, are not in favour of the justice system.[30] Fourthly, a widespread increase in the number of Central and State legislations is also adding on to the pendency. Another major factor contributing to this delay is the indiscriminate and unsystematic use of writ jurisdictions of High Courts all across the country.

WHERE DOES THE SOLUTION LIE?

The problem that our judicial system today faces provides a tremendous challenge to us. These problems are in no way transient or simple. Therefore, we need a holistic and pragmatic approach towards clearing the backlog. An effective mechanism followed persistently for three to four years will to a great extent cut down the arrears. The question that is pertinent here is – Do we have the determination? 

Firstly, we definitely need a new system of appointment of judges. What happens in the collegium meetings is never known. The five senior most judges can’t be given a role which they were never assigned in the first place by the Constitution. Experience has shown that the collegium system has led to Bhai Bhatijawad or more properly called Uncle Judge Syndrome. Often there is nepotism and favouritism shown in appointments. This is not only bad for our justice system as efficiency and meritocracy gets compromised but this also makes our judiciary look politicized. Justice Bhagwati had gone on to record say ‘I know what happens in the committee of five. I don’t want to disclose that but we have seen the kind of appointments that have been made.’[31] A similar opinion was held by Justice V.R. Krishna Iyer – ‘Today, the collegium on its own makes the selection. There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.’ [32] It is therefore hoped that the Hon’ble Supreme Court exercising its writ jurisdiction does not hold the National Judicial Appointments Commission as unconstitutional.

Many a times the lack of proper infrastructure adds on to the delay. Judges who sit on such high pedestal need proper facilities for working. Mostly, all the courts in our country have infrastructure which are not up to the mark by any standards. An immediate solution could be using unutilized government buildings. Thirdly, the rising population and enhanced commercial activity is resulting in an increase in the number of cases. The ratio of judge per million population cannot remain static at this stage. For this purpose, the Judges of the Supreme Court, High Court and the District Courts who have already served and retired could be appointed as adhoc judges to dispose pending cases expeditiously. [33] Fourthly, it is important to mention here the provision as laid down in Article 130[34] of the Constitution. Article 130, which is an enabling provision, empowers the Chief Justice of India to appoint place or places other than Delhi as the seat of the Supreme Court provided the approval of the President is given. This provision has never been used by any Chief Justice of India, The 229^th Law Commission Report in August 2009 had recommended setting up of a division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Mumbai, Kolkata, Chennai/Hyderabad and Delhi.[35] Almost a similar suggestion had been earlier given by the 95th Law Commission Report[36] and also by the 125^th Report[37] in the year 1984 and 1988 respectively. Also another reason for creating more benches of the Supreme Court is endorsed by the empirical data which suggests that appeals to the Supreme Court coming from various high courts do not come to it evenly. It has been seen that those high courts which are situated in areas that are in the vicinity of Delhi or that are wealthier are likely to generate more appeals to the Supreme Court. Going by the reports of 2011, 18.6 percent of the Supreme Court’s admission docket was appealed to it from Punjab and Haryana while an alarming 10.6 percent was appealed from Delhi.[38] This percentage is higher than the appeals which came from U.P., Maharashtra and few other heavily populated states. The time is therefore ripe for such recommendations to be taken seriously. Fifthly, the Malimath Committee Report of 2003 on Reforms of Criminal Justice System suggested that: (i) The working days of the Supreme Court be raised to 206 days. (ii) The working days of the High Courts be raised to 231 days.[39] This suggestion hasn’t been followed by any court. The Supreme Court in the year 2007 went in reverse gear with only 176 working days and the remaining 189 days were holidays.[40] The number of working days of the courts in our country is hopelessly low in comparison with many other countries. Therefore, in the larger interest of the public and also in the interest of justice, the holidays of the Supreme Court and the High Courts should be cut short. (Emphasis added) Holiday Courts in every state seem to be the need of the hour.

            Sixthly, adjournments undoubtedly contribute to delays in the disposal of cases which is not in the interest of justice. In most of the cases, adjournments are taken on false pretexts, and the system does not have any appropriate mechanism to tackle them. Therefore the menace of adjournments has to be tackled effectively as it seriously erodes the faith of the common man in the judicial system. The bad practice of adjournments cannot be allowed to continue indefinitely. To combat such adjournments, one effective method could be imposing costs on those seeking frivolous adjournments. It is hereby recommended that grant of such adjournments must be guided strictly according to the provisions of of the Civil Procedure Code and the Criminal Procedure Code. Lawyers need to pay heed to these provisions and the judges need to enforce it effectively or else the clearing of backlog will only be a far-fetched dream. Seventhly, it is often said that lawyers are ‘priests in the temple.’ So they need to have a special interest in preserving the integrity of the judicial system. In K. John Koshy & Ors. vs. Dr. Tarakeshwar Prasad Shaw[41], while deciding whether the Court should refuse to hear a matter and pass an order subsequently in a situation when counsel for both the parties were absent because of a strike called by the Bar Association, the Supreme Court held that the Court could not refuse to hear the matter as it would tantamount to Court becoming a privy to the strike. For this reason the lawyers must never resort to strikes which we often see and must follow with all sincerity the decision of the Constitution Bench of the Supreme Court in 2003 in the case of Harish Uppal (Ex-Capt.) v.Union of India. [42] Eighthly, the excessive delay caused by the judges in delivering judgments is lamentable and unacceptable. The Apex Court in RC Sharma vs. UOI[43] observed - "An unreasonable delay between hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable.” In this regard, the guidelines given by the Supreme Court in the case of Anil Rai v. State of Bihar[44] must be thoroughly observed. Ninthly, those cases which are filed on similar issues could be clubbed with the use of technology and one judgment could decide the large number of cases filed on similar grounds. This is gradually being done but can happen even more effectively. This will help in substantially reducing the arrears within a reasonable amount of time. Also, second appeals and revisions should be eliminated as the right to appeal to the Supreme Court through Special Leave Petitions (SLP’s) under Article 136[45] of the Constitution is available to everyone. This jurisdiction of the Supreme Court cannot be curtailed as it has been held to be a part of the basic structure of the Constitution in Delhi Judicial Service Association vs State Of Gujarat And Ors.[46] Tenthly, and most importantly, methods other than traditional and vexatious litigations must be adopted. Alternate Dispute Resolution mechanism is the answer to reduce the burden on judiciary of pending cases. Lok Adalats, Nyaya Panchayats[47], Mediation, Arbitration and Conciliation centers are already showing good results coupled with the fact that they provide inexpensive justice.

CONCLUSION:

The great Russian poet Yevgeny Aleksandrovich Yevtushenko once said – ‘Justice is like a train that is nearly always late.’ So true are his words in the Indian context. Speedy justice as enumerated under Article 21 is not merely an aspect of the right to life with dignity, but is also essential for upholding the efficacy of the rule of law.[48] We have completed 65 years of independence. Freedom was not got easily. The struggle brought the world's then mightiest empire to its knees. The struggle saw the birth of a new nation, which committed itself to the rule of law. Therefore, the preservation of the rule of law which is the bedrock of any democracy should be our solemn goal. Daniel Webster’s golden words are of much relevance here - Justice, sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honored, there is a foundation for general security, general happiness, and the improvement and progress of our race.[49]

            I believe the time has come for every court in this country to be a fast track court as a prolonged delay brings about a sense of injustice which in turn invites anarchy. (Emphasis added) No more should people wait at the doorsteps of courts for decades to get speedy justice. Delayed decisions and mounting arrears are nothing short of violation of our fundamental rights and have the effect of shaking the very foundation of independent judiciary. Thus, it is imperative for all the consumers of justice as well as for the justice delivery system that the crisis of backlog of cases be addressed solemnly. 

---

[1] Merchant of Venice, Act 4, Scene 1 Line 223 – A plea by Shylock to Daniel to come and give a wise judgment.

[2] This has been brought out in the film ‘Lage Raho Munna Bhai’ by Rajkumar Hirani where the lawyer when confronted by the protagonist to give an assurance that his case would be decided atleast within 15 years failed to give such an assurance.  

[3] Standing Committee 85^th Report on Law Delays: Arrears in Courts 2002

[4] http://www.nbcnews.com/id/29164027/ns/world_news-south_and_central_asia/t/report-india-court-years-behind-schedule/#.UNgGvm-eFVI

[5] Courts will take 320 years to clear backlog cases: Justice Rao, Times of India, March 6^th 2010.

[6]On the Floor of Lok Sabha, on March 7, 2013. at http://164.100.47.132/newdebate/15/13/07032013/Fullday.pdf

[7] http://supremecourtofindia.nic.in/p_stat/pm01032013.pdf

[8] Data given in response to an RTI application filed by Uttar Pradesh resident Kush Kalra. Also see, ‘Over 43L cases pending before high courts’, Times of India 5^th October, 2012.

[9] Article 21. Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.

[10]  See the opinion of R.C. Lahoti, J. in P. Ramachandra Rao vs State Of Karnataka (2002) 4 SCC 578

[11] AIR 1980 SC 2125

[12] Ibid at para 2.

[13] On Manpower Planning in Judiciary : A Blue Print in 1987

[14] AIR 2002 SC 1752

[15] Under article 235 of the Constitution of India, the administrative control over the members of subordinate judiciary in the States vests with the concerned High Court and the State Government.

[16] See ‘Government for alternative system for appointment of judges’ in Indian Express of March 11th 2013.

[17] 1993 (4) SCC 441

[18] 1998 (7) SCC 739

[19] The initiation for appointment of judges to High Courts has to be started by the Chief Justices of the respective Courts. It is ultimately the collegium system of five senior-most judges of the Supreme Court which recommends the names to the President for appointment.

[20] 230^th Law Commission Report titled ‘Reforms in the Judiciary – Some Suggestions’ at pg 32.

[21] Titled ‘Proposal for Reconsideration of Judges cases I, II and III’

[22] Emerging Challenges Before Indian Judiciary, published in Voice of Law and Justice (July-August 2012, Issue 4)

[23] Though the present number of judges is 81 and the sanctioned strength is 160. See, Indian Express of Apr 18 2012 'Allahabad HC gets 11 new judges'.  

[24]See Ashwani Kumar’s statement in Lok Sabha at http://164.100.47.132/newdebate/15/13/07032013/Fullday.pdf on 7^th March, 2013.     

[25] Source: Supreme Court of India

[26] As per 2011 population census; Also see

http://www.kerala.gov.in/index.php?option=com_content&view=article&id=4007&Itemid=3187

[27] As per 2011 population census; Also see http://www.census2011.co.in/census/state/bihar.html

[28]See Ashwani Kumar’s statement in Lok Sabha at http://164.100.47.132/newdebate/15/13/07032013/Fullday.pdf on 7^th March, 2013.

[29] See ‘Government for alternative system for appointment of judges’ in Indian Express of March 11th 2013.

[30] Law commission 230th Report on 'Reforms in the Judiciary - Some Suggestions' in August 2009 at pg.26

[31]See ‘Lords on Trial’ by Shafi Rahman in India Today September 7 2009 Issue.

[32] Judicial appointments & disappointments by V.R. Krishna Iyer in The Hindu on August 18, 2012

[33] Article 127 of the the Constitution provides for the appointment of adhoc judges to the Supreme Court. Similar provision is provided for the High Courts under Articles 224 and 224-A of the Constitution.

[34] 130. Seat of Supreme Court.--The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.

[35] At pg. 7 of the report - We suo motu took up the subject for consideration and have recommended that a Constitution Bench be set up at Delhi to deal with constitutional and other allied issues and four Cassation Benches be set up in the Northern region at Delhi, the Southern region at Chennai/Hyderabad, the Eastern region at Kolkata and the Western region at Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region.

[36] Titled "Constitutional Division within the Supreme Court – A proposal for”

[37] Titled “The Supreme Court – A Fresh Look” wherein they reiterated at pg.23 the need for more benches of the Supreme Court - “The Supreme Court sits at Delhi alone. Government of India, on couple of occasions, sought the opinion of the Supreme Court of India for setting up a Bench in the South. This proposal did not find favour with the Supreme Court. The result is that those coming from distant places like Tamil Nadu in the South, Gujarat in the West and Assam and other States in the East have to spend huge amount on travel to reach the Supreme Court. There is a practice of bringing one’s own lawyer who has handled the matter in the High Court to the Supreme Court. That adds to the cost. And an adjournment becomes prohibitive. Adjournment is a recurrent phenomenon in the Court. Costs get multiplied. Now if the Supreme Court is split into Constitutional Court and Court of Appeal or a Federal Court of Appeal, no serious exception could be taken to the Federal Court of Appeal sitting in Benches in

places North, South, East, West and Central India. That would not only considerably reduce costs but also the litigant will have the advantage of his case being argued by the same advocate who has helped him in the High Court and who may not be required to travel to long distances. Whenever questions of constitutionality occur, as pointed out in the 1984 Report, the Supreme Court can sit en banc at Delhi and deal with the same..”

[38] See ‘The Indian Supreme Court by the Numbers’ by Nick Robinson at pg. 20 of the Report.

[39] at pg. 286

[40] See 'Supreme Court has more breaks than working days' at IndiaToday on November 11, 2007. Also available online at http://indiatoday.intoday.in/story/Supreme+Court+has+more+breaks+than+working+days/1/1863.html

[41] (1998) 8 SCC 624

[42] (2003) 2 SCC 45

[43] 1976(3) SCC 574

[44] (2001) 7 SCC 318

[45] 136. Special leave to appeal by the Supreme Court.-(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces

[46] 1991 AIR 2176

[47] The Law Commission of India in its 154th Report on CrPC had recommended that States throughout the country should enact legislations on Nyaya Panchayats to suit local needs and conditions.

[48] Justice Verma Committee Report 2013, at pg. 411.

[49] The Works of Daniel Webster (1851), page 300.

-Anubhav Verma

Consultant-at-law