SHORT NOTES
ON PROPOSED AGENDA ITEMS
The following resolutions were
passed in Chief Justices’ Conference held on 9th and
10th March, 2006
Progress on
implementation of the Resolutions passed at the previous Chief
Justices’ Conference held in September, 2004.
The High Courts, at their end,
will ensure timely implementation of the resolutions passed in
Chief Justices’ Conference;
wherever
cooperation or finances from the State Government are required for
implementation of the resolutions, the matter will forthwith be
takenup by the Chief Justices at the highest level, so as to get
the needful done at an early date.
Steps required to be
taken by High Courts and the Governments pursuant to the Letter
dated 23rd December, 2005 from Hon’ble
the Chief Justice of India
to the Chief Justices of High Courts.
the Chief Justices will
constitute Benches exclusively for regular hearing of old criminal
appeals/petitions, cases in which the accused are in custody or
the proceedings before the Trial Court
have been stayed and civil cases in which injunction
or stay order
has been passed;
retired Judges be appointed
in High Courts under Article 224A of the Constitution to clear the
backlog of old cases wherever it is considered necessary by the
Chief Justice of the High Court
concerned;
wherever required, additional
Courts of Special Judges be setup exclusively for trial of
corruption cases against politicians, Gazetted Officers of the
Government, Police Officers, Inspectors/Officers of Municipal and
Local Bodies or Managers of Bank/Public Sector Enterprises.
cases of rape and sexual
harassment be heard by earmarked Courts on priority basis;
cases in which proceedings
before the Trial Court
have been stayed by Sessions Court
/ Fast Track Courts, Sessions Cases in which accused are in jail
for more than three years and civil cases in which
injunctions/stay orders have been granted by subordinate Courts be
identified and disposed of expeditiously;
Petty offences including
traffic and municipal challans be transferred to the Courts of
Special Metropolitan Magistrates/Special Judicial Magistrates to
be manned by retired Judicial Officers/senior Government Servants,
which should make extensive use of various I.T. tools for disposal
of such cases. State Governments be requested to appoint
Special Metropolitan Magistrates/Special Judicial Magistrates,
wherever required, for disposal of such cases and to provide
necessary infrastructure and staff for them;
State Governments be
requested to sanction additional Courts of Magistrates to deal
with complaints under Section 138 of Negotiable Instruments Act,
and in the meanwhile, such cases be assigned to Civil Judges, by
conferring necessary powers wherever found feasible;
High Courts will consider
devising a suitable mechanism to provide for termination of stay
of proceedings before the Trial Court,
at the end of six months, unless extended for adequate and special
reasons to be recorded in writing;
High Courts will identify
cases relating to Intellectual Property Rights pending with them
as well as in Subordinate Courts and their hearing will be takenup
on priority basis;
High Courts will take
necessary steps to ensure that matters which do not require
effective hearing/hearing on merits are dealt with by the
Registrars and that such matters are not listed before the Court;
High Courts will set up
suitable mechanism for monitoring the cases of the nature referred
in (i) to (x) above and will keep the Hon’ble Chief Justice of
India
informed of the progress, on regular basis.
Review of steps taken
for reduction/elimination of arrears of cases in the High Courts and
subordinate Courts.
Increase in the
strength of Judges of the High Courts and subordinate Courts.
These
items were taken up and considered together.
RESOLVED
That
The Chief Justices will
impress upon the governments, at the highest level, to increase the
strength of subordinate Judges in terms of the recommendations made
by the Law Commission in its 120th Report, endorsed by
the Standing Committee of Parliament headed by Shri Pranab
Mukherji, in its 85th Report and the directions given by
the Hon’ble Supreme
Court
vide Judgment dated 21st March, 2002 in Writ Petition
(Civil) No. 1022 of 1989.
Examinations and interviews to
fill-up the vacancies of Judicial Officers at all levels will be
conducted atleast once a year and a panel of suitable Officers be
prepared to fill-up the vacancies arising till next examination.
Chief Justices will make
recommendations for appointments to High Courts at least six months
before the occurrence of vacancy.
High Courts will earmark
separate Courts for disposal of old cases.
High Courts will
make all possible efforts for reducing arrears of cases by using
techniques such as Case Flow Management, grouping and bunching,
application of I.T. tools and optimum utilization of the available
resources.
Whenever a new legislation
likely to increase workload of the Courts is enacted, High Courts
shall impress upon the State Governments to suitably increase the
strength of Judges.
Augmenting of
infrastructure for subordinate Courts.
RESOLVED
That
The Chief Justices will take
up with State Governments the issue of the augmentation of
infrastructure for subordinate Courts by construction of new Court
complexes, addition of Court
Rooms to the existing Court
buildings and renovation and modernization of the Court
buildings;
The new Court
complexes be constructed as per uniform standard building plans and
such buildings should be user and litigant friendly having all
necessary and requisite amenities and facilities;
Chief Justices
will impress upon the State Governments at the highest level to
release their share of the funds in the Centrally Sponsored
Schemes for Development of Infrastructure in Judiciary, so as
to utilize the matching grant by the Central Government.
Evaluation of
performance of Fast Track Courts and setting up of Fast Track Courts
of Magistrates in each State/Union Territory.
RESOLVED
That since the Fast Track Courts of
Sessions Judges have proved to be highly successful, as a very large
number of criminal cases are pending before Magisterial Courts, Fast
Track Courts of Magistrates are required to be set up immediately in
all the States and a request be made to the Central Government to
make the necessary finances available for the scheme.
7. Modernisation
of Courts and computerisation of Justice Delivery System.
14. Establishment
of E-Courts and Video Conferencing facilities.
These
items were takenup and considered together.
RESOLVED
That
Modernisation and
Computerisation of Justice Delivery System at all levels be
undertaken by the High Courts giving priority to making available
on Court’s website:
(a)
all the cause lists; (b) case status; (c) Judgments
and Orders.
High Courts may also consider
the feasibility of issuing digitally signed copies and introducing
computerized attendance recording system;
facility of video conferencing
be provided, wherever feasible, for remand of under trial prisoners
and other purposes;
video linkage be established
between National Judicial Academy and the State Judicial Academies
as well as amongst the State Judicial Academies. High Courts
will request the State Governments to provide requisite funds for
the project;
High Courts may explore the
possibility of E-filing of cases initially at the High Court
level;
computerisation of Courts by
E-Committee, through NIC, being supplementary to the obligations of
the States, the High Courts at their own level may, in addition,
undertake computerisation with the funds provided by the State
Governments.
8.
Progress on Alternative Dispute Resolution systems.
9.
Strengthening of Lok Adalat system and legal literacy
programmes.
These
items were takenup and considered together.
RESOLVED
That
Efforts will be made by the
High Courts for increasing the use of various ADR modes with a view
to reduce pendency of cases in the Courts with the help of NALSA
and State Legal Services Authorities;
permanent mediation centers
may be set up by the High Courts at appropriate levels. High
Courts may accordingly take steps for training of Judges, lawyers
and others in mediation in cooperation with National Judicial
Academy;
High Courts may make use of
resource person(s) likely to be provided by NALSA, in Mediation;
Chief Justices will make
efforts for introduction of ADR systems as a subject of study in
Law schools and colleges;
as far as possible, retired
Judges/Judicial Officers and lawyers will be engaged for mediation
and conciliation;
Chief Justices will impress
upon the State Governments, at the highest level, to establish
permanent Lok Adalats in terms of the Chapter VI(A) of Legal
Services Authorities Act;
State Legal Services
Authorities will step-up their efforts to spread legal literacy by
undertaking community education programmes, organizing legal aid
clinics and associating genuine non-governmental organizations in
their endeavour.
10. Granting
financial autonomy to High Courts.
RESOLVED
That
Chief Justices will take-up with the Government the issue of
granting financial autonomy to the Chief Justices and will also
impress upon them to:
meet the budgetary demands made by the
High Courts;
grant power of appropriation and
reappropriation of funds to the Chief Justices within the overall
budgetary limits;
substantially increase the allocation
of funds for judiciary.
11. Reforms
in Criminal Justice System.
RESOLVED
That
10 year old criminal
cases pending in High Courts will be taken up on priority basis
and disposed of at the earliest;
High Courts will undertake regular
review of cadre strength of subordinate Judicial Officers and
impress upon the State Governments the need to increase the
strength accordingly;
High Courts will request the State
Government to appoint competent Public Prosecutors in adequate
numbers, separate investigation of cases from maintenance of law
and order
and establish an independent Directorate of Prosecution in the
State;
the list of compoundable cases be
enlarged so as to make more cases of appropriate nature,
compoundable.
12.
Gearing up the working of the vigilance cells in the High
Courts to dispel people’s perception of corruption in the
subordinate judiciary and Court
staff.
RESOLVED
That
vigilance cells of the High
Courts shall work directly under the control of the Chief Justice;
vigilance cells for the
Magisterial staff shall be set-up in each district under the direct
control of the District Judge;
High Courts will regularly
monitor the working of vigilance cells set-up in District Courts;
all out efforts
shall be made by the High Courts to remove corruption in the
subordinate Courts;
all vulnerable areas of
corruption shall be plugged, by reducing the need of interaction
between litigants and Court
staff and making maximum use of IT applications as well as by
necessary changes in the rules and procedure.
13. Training
of Judicial Officers in National Judicial Academy at Bhopal and State
Judicial Academies.
17.
Training of entire judicial staff regarding Court
Management and matters pertaining to the administration of both
criminal and civil Courts.
These
items were taken-up and considered together.
RESOLVED
That
regular training programmes, workshops
and refresher courses be conducted by State Judicial Academies for
training of Judicial Officers, on the basis of curriculum agreed
by the Chief Justices at National Judicial Academy, with
appropriate modifications, wherever required, in view of the local
conditions;
selection of Judicial
Officers for training at National Judicial Academy be made by the
High Court
after inviting requests and taking into consideration the aptitude
and posting of the Judicial Officer;
training be imparted by State Judicial
Academies to Court
staff in Court
management and administration;
15. Establishment
of a permanent mechanism for implementation of resolutions of the
Chief Justices’ Conferences and the joint Conference of Chief
Ministers and Chief Justices.
RESOLVED
That suitably constituted
monitoring Committees be set-up at Central level as well as State
level to ensure timely implementation of the resolutions passed at
Chief Justices’ Conference and Joint Conference of Chief Justices
and Chief Ministers and to sort out all other matters concerning
administration of justice.
16. Feasibility
of considering civil cases also by the Fast Track Courts already
established.
RESOLVED:
That
High Courts may consider assigning civil cases pending in
subordinate Courts to the existing Fast Track Courts, wherever found
feasible.
18.
Facility of Research Assistants and Law Clerks.
RESOLVED
That facilities of Research
Assistants and Law Clerks be provided to High Court
Judges at an honorarium which, as far as possible, shall not be less
than Rs.10,000/- per month.
19.
Entrustment of selection of subordinate Judicial Officers, to
High Courts, wherever required.
RESOLVED
That Chief Justices shall impress
upon the State Governments at highest level to entrust selection of
subordinate Judicial Officers to the High Courts.
20. Improvements in
Administration of Civil Justice System.
RESOLVED
That High Courts will issue
necessary instructions to the subordinate Judges to strictly follow
the provisions of Code of Civil Procedure in the matters of service
of process, filing of written statement, use of ADR methods, imposing
of costs, admission/denial of documents, examination of parties,
discovery and inspection of documents, framing of issues, granting of
adjournments, production of witnesses and granting of ex-parte
injunction/stay
orders.
21.
Strengthening legal aid systems.
RESOLVED
That State Legal Services Authority
shall make efforts to strengthen the legal aid machinery and will
ensure that only competent lawyers are engaged and that law students
as well as genuine non-governmental organizations are involved in
their activities.
22. Any other subject
with the permission of the Chair.
In
re: “The plight of Juvenile Delinquents”
RESOLVED
That High Courts will impress upon
the State Governments to set up Juvenile Justice Boards, wherever not
set-up. The Chief Justices may nominate a High
Court
Judge to oversee the condition and
functioning of the remand/observation homes established under
Juvenile Justice (Care and Protection of Children) Act, 2000.
The following
resolutions were passed in the Conference of Registrar Generals and
Law Secretaries held in Supreme
Court
on December 23, 2006.
(1) Regarding
standardisation and unification of procedures relating to uniform
nomenclature of various categories of cases filed in various High
Courts, uniform procedures for filing and format of petitions,
appeals, uniform procedure for listing and preparation of lists in
High Courts, uniform registers and standardise forms in High Courts
and Subordinate Courts, classification of grouping of cases.
That National
Judicial Academy be requested to recommend uniform nomenclatures
for various categories of cases filed in the High Courts, as also
uniform procedures for filing and format of petitions, appeals,
uniform procedure for listing and preparation of lists in High
Courts, uniform registers and standardise forms in High Courts and
Subordinate Courts, classification of grouping of cases. A
copy of Justice S.C. Agrawal Committee Report be simultaneously
along with a copy of the format devised by the National Informatics
Centre, be simultaneously sent to all the High Courts, which can
send their comments to National Judicial Academy.
That the High
Courts shall continue to make their own efforts for
computerisation, independent of National Informatics Centre and
E-Committee, with the help of the funds provided by the respective
State Governments.
That National
Judicial Academy be requested to evolve uniform norms for disposal
of cases by judicial officers and format of their A.C.Rs., after
inviting suggestions from the High Courts. That the recommendations
of the National Judicial Academy in this regard shall be subject to
the approval by the respective High Courts.
That the next
Conference of Registrar Generals/Principal Registrars and Law
Secretaries be held at Allahabad, Uttar Pradesh, in the year 2007,
as offered by Registrar General of Allahabad High Court
and Law Secretary of Uttar Pradesh.
That the
recommendation made in the Conference held in 1997 is reiterated
and a Judicial Officer be considered for elevation to the High
Court,
up to the age of sixty years, on the date on which the vacancy
occurs.
That the
recommendations made in the Conference held in the year 1999 are
reiterated and there should, at least, be limited financial
autonomy for the High Courts and qualified professionals be
involved in the financial management of High Courts and District
courts.
That the
National Judicial Academy be requested to devise, in consultation
with State Judicial Academies, uniform programme and module for
initial training as also on-job training of the staff of the High
Courts and Subordinate Courts, and send it to State Judicial
Academies, which may adopt it with such modifications as may be
necessary to meet their respective local requirements. Wherever the
State Judicial Academies have devised such programmes, they shall
circulate it to the National Judicial Academy as well as to other
State Judicial Academies.
3(2) Classification,
filing, grouping, bunching and listing of cases.
That the High
Courts may consider the suggestions given in the Notes on the
Agenda Items and the system of filing, scrutiny, classification and
listing of cases prevalent in the Registry of the Supreme
Court
of India
and adopt them, wherever found feasible, with such modifications as
they may deem appropriate.
3(3) Recruitment,
postings and transfer of Court
Officers/Officials.
That since space
is a constraint for keeping the old records in High Courts and
subordinate Courts, the High Court
may consider preservation and maintenance of court
records by digitization and scanning, through outsourcing, which
will not only save the cost but will also consume less time.
3(6) Procurement
of materials, Library books and services.
That there
should always be a Vigilance Cell in each District, to be headed by
a senior Judicial Officer. The Vigilance Cell shall keep
effective control on the staff of the Courts and regularly monitor
their activities so that the image of the Courts is not tarnished
in the eyes of general public. The dates in the cases should
invariably be given only by the Presiding Officer and the practices
and procedures should be streamlined so as to minimize the contact
of the litigants with the members of the staff.
That the
Registrar General of the High Court
should be the only spokesperson of the Court
and speak to the Media. The High Courts may also consider
accreditation of reporters from various newspapers and electronic
media on the pattern of the Supreme
Court,
so that the reporting in the media is true and accurate.
That there
should be close coordination and interaction between Law
Secretaries and the Registrar Generals of the High Courts and it
should be the endeavour of the Law Secretary to pursue the
proposals sent by the High Court,
with the State Government, for expedititous consideration and
approval. They will also take up, with the State Governments,
setting up of Monitoring Committees, in terms of the resolution
passed at Joint Conference of Chief Ministers and Chief Justices.
ITEM
NO.3 STEPS REQUIRED TO BE TAKEN FOR REDUCTION OF ARREARS,
SPEEDY DISPOSAL OF CASES AND INCREASE IN THE STRENGTH OF JUDGES AT
ALL LEVELS, PURSUANT TO THE DECISIONS TAKEN AT JOINT CONFERENCE OF
CHIEF MINISTERS OF STATES AND CHIEF JUSTICES OF HIGH COURTS HELD
ON MARCH 11, 2006 AND RESOLUTIONS PASSED AT CHIEF JUSTICES’
CONFERENCE HELD ON MARCH 9-10, 2006.
One
basic structure of our Constitution is an independent and efficient
Justice Delivery System. Delay in disposal of cases, not only
creates disillusionment amongst the litigants, but also undermines
the capability of the system to impart justice in an efficient and
effective manner. On account of inefficiencies in the system,
built over last so many years, huge arrears of cases have piled up in
courts at all levels, and ways and means are required to be found out
urgently, to wipe them out, so as to sustain the faith of the society
in the effectiveness of the system. Law Commission, in its
120th Report, submitted on 31st July, 1987
recommended optimum figure of 107 judges per million by 2000, the
ratio achieved by USA in the year 1981. It also recommended
ratio of 50 judges per million of population, within a period of 5
years. The Standing Committee of Parliament headed by Shri
Pranab Mukherjee, in its 85th Report submitted in
February, 2002, endorsed the ratio recommended by the Law
Commission. Vide judgement dated 21st March, 2002,
in Writ Petition (Civil) No. 1022 of 1989, the Supreme
Court
directed increase in judges’ strength to 50 judges per million, in
a phased manner.
Institution
and disposal and pendency of Civil and Criminal cases in High
Courts in the last eight years is as under:
|
CIVIL CASES
|
|
YEAR
|
INSTITUTION
|
DISPOSAL
|
PENDENCE AT THE END OF THE
YEAR
|
|
1999
|
816912
|
712482
|
2353453
|
|
2000
|
795007
|
735301
|
2387526
|
|
2001
|
874125
|
796228
|
2465423
|
|
2002
|
932186
|
842646
|
2554963
|
|
2003
|
988449
|
982580
|
2560832
|
|
2004
|
1016420
|
863286
|
2811382
|
|
2005
|
1082492
|
934987
|
2870037
|
|
2006
|
1082667
|
979275
|
2968662
|
|
CRIMINAL CASES
|
|
1999
|
305518
|
267992
|
404353
|
|
2000
|
321615
|
283700
|
447552
|
|
2001
|
341301
|
297370
|
491483
|
|
2002
|
402016
|
343900
|
532085
|
|
2003
|
396869
|
367143
|
561811
|
|
2004
|
432306
|
375917
|
613077
|
|
2005
|
460398
|
403258
|
651246
|
|
2006
|
507312
|
571327
|
686191
|
|
|
TOTAL INSTITUTION
|
TOTAL DISPOSAL
|
PENDENCY AT THE END OF THE
YEAR
|
|
1999
|
1122430
|
980474
|
2757806
|
|
2000
|
1116622
|
1019001
|
2835078
|
|
2001
|
1215426
|
1093598
|
2956906
|
|
2002
|
1334202
|
1186546
|
3087048
|
|
2003
|
1385318
|
1349723
|
3122643
|
|
2004
|
1448726
|
1239203
|
3424459
|
|
2005
|
1542890
|
1338245
|
3521283
|
|
2006
|
1589979
|
1450602
|
3654853
|
Institution
and disposal and pendency of Civil and Criminal cases in Subordinate
Courts in the last eight years is as under:
|
CIVIL CASES
|
|
YEAR
|
INSTITUTION
|
DISPOSAL
|
PENDENCY AT THE END OF THE
YEAR
|
|
1999
|
3302042
|
3217516
|
7020973
|
|
2000
|
3170521
|
3186753
|
6925913
|
|
2001
|
3373469
|
3140099
|
7211809
|
|
2002
|
3385715
|
3342653
|
7254871
|
|
2003
|
3170048
|
3121978
|
7302941
|
|
2004
|
3697242
|
3726970
|
7042245
|
|
2005
|
4069073
|
3866926
|
7254145
|
|
2006
|
4007147
|
4014475
|
7237495
|
|
CRIMINAL CASES
|
|
YEAR
|
INSTITUTION
|
DISPOSAL
|
PENDENCY AT THE END OF THE
YEAR
|
|
1999
|
9429233
|
9177244
|
13477427
|
|
2000
|
9643398
|
9451770
|
13338454
|
|
2001
|
10064701
|
9354812
|
14202763
|
|
2002
|
11159996
|
10177254
|
15185505
|
|
2003
|
11635833
|
10874673
|
15946665
|
|
2004
|
11888475
|
10857643
|
17624765
|
|
2005
|
13194289
|
12442981
|
18400106
|
|
2006
|
11634982
|
11827963
|
17634703
|
|
|
TOTAL INSTITUTION
|
TOTAL DISPOSAL
|
PENDENCY AT THE END OF THE
YEAR
|
|
1999
|
12731275
|
12394760
|
20498400
|
|
2000
|
12813919
|
12638523
|
20264367
|
|
2001
|
13438170
|
12494911
|
21414572
|
|
2002
|
14545711
|
13519907
|
22440376
|
|
2003
|
14805881
|
13996651
|
23249606
|
|
2004
|
15585717
|
14584613
|
24667010
|
|
2005
|
17263362
|
16309907
|
25654251
|
|
2006
|
15642129
|
15842438
|
24872198
|
Institution
of civil cases in the High Courts was 1082667 in the year 2006 as
against the disposal of 979275 cases, and therefore, the institution
far exceeded the disposal. The institution of criminal cases in the
High Court
in the year 2006 was 507312 as against disposal of 571327 cases.
For the first time, in last eight years, disposal of criminal cases
by High Courts exceeded the institution. But the total
institution in the High Courts being 1589979 and total disposal being
1450602 institution exceeded the disposal. Overall institution
continues to exceed disposal.
Institution
of civil cases of Subordinate Courts in the year 2006 was 4007147 as
against disposal of 4014475 such cases, and therefore, the annual
institutional of civil cases in Subordinate Courts was slightly less
than the annual disposal in the year 2006. Institution of
criminal cases in Subordinate Courts in the year 2006 was 11634982 as
against disposal 11827963 such cases, and therefore, was less than
the disposal.
These
figures show that High Courts were able to reduce pendency of
criminal cases but the pendency of civil cases in High Courts
increased in the year 2006, whereas, Subordinate Courts were able to
reduce pendency of civil cases as well as criminal cases.
The
above given figures would show that annual disposal by Subordinate
Courts which had increased from 12394760 in the year 1999 to 16309907
in the year 2005 has come down to 15842438 in the year 2006.
The pendency in Subordinate Courts which had increased from 20498400
at the end of 1999 to 25654251 at the end of 2005 has come down to
24872198 only on account of reduction in institution in the year
2006.
It
would be seen that the annual disposal by High Courts has increased
from 980474 in the year 1999 to 1450602 in the year 2006. Despite
that the pendency has increased from 2757806 at the end of 1999 to
3654853 at the end of 2006 on account of institution exceeding
disposal.
Vide
letter dated 23rd December, 2005, the then Hon’ble Chief
Justice of India,
made the following specific suggestions aimed at reducing the arrears
and expediting disposal of cases.
Benches may be set up exclusively for
regular hearing of criminal appeals/petitions pending for more than
3 years, cases in which the accused is in custody or the
proceedings before the trial Court
have been stayed and civil cases in which injunction
or stay order
has been passed, so as to take up them on priority basis and as far
as possible dispose them of within one year.
Appointment of retired Judges, as
envisaged in Article 224-A of the Constitution, to clear the
backlog of old cases.
Identifying the cases in which
proceedings before the trial Court
have been stayed by the Sessions Courts/Fast Track Courts of
Sessions Judges, sessions cases in which the accused is in jail for
more than 3 years and civil cases in which injunction
or stay has been granted by subordinate courts and disposing them
of, as far as possible, within one year.
Transfer of cases involving petty
offences including traffic challans pending in traffic courts to
courts of Special Metropolitan Magistrate/Special Judicial
Magistrate to be manned preferably by retired Judicial
Officers/senior government servants and extensive use of I.T. Tools
in disposal of such cases viz. by entering their particulars such
as next date and the order
passed on computer, issuing computerized receipts against which
document, if any, impounded by police in traffic challans may be
returned and issuing computer generated cause list of such cases,
coupled by request to state government to appoint Special Judicial
Magistrate in adequate number, to deal with such cases and provide
necessary infrastructure including accommodation and court
staff for them.
To assess the requirement of additional
courts to deal with complaints under Section 138 of the Negotiable
Instruments Act and taking up creation of additional courts with
State Government to deal exclusively with such complaints. In
the meanwhile, the High Court
could consider assigning these complaints to Civil Judges, wherever
the pendency before magistrate is more than that before civil
judges.
To fill up the vacancies of judicial
officers, as far as possible by 31st March, 2006 and
hold examination for appointment of Judicial Officers at least
twice a year and prepare a panel of suitable officers, wherever
available, to fill up the vacancies arising till next
examination. Another suggestion given in this regard was that
promotion to the cadre of District Judges may be made within three
months from the date of arising of vacancy and all future vacancy
in the cadres of Civil Judges or District Judges be filled up
within three months.
To make recommendation for appointment
of High Court
Judges at least six months before the occurrence of vacancy.
To consider segregation of courts so as
to earmark separate courts to deal with old cases and new cases, in
order
to ensure new cases of today do not become old cases of tomorrow.
To devise a suitable mechanism to
ensure that stay of proceedings before the trial Court
terminates at the end of six months, unless extended, for adequate
and special reasons to be recorded in writing.
To make requisite rules and regulations
of practice and directions, in terms of the decision of this Court
in Salem Advocates Bar Association vs. Union of India
[(2005) 6 SCC 344], to award the reasonable costs including cost of
time spent by the successful party, transportation and lodging, if
any, and other incidental cost including court
fee, lawyers’ fee, typing etc.
To identify the cases
relating to Intellectual Property Right pending in the High Courts
as well as in subordinate courts and take them up for hearing on
priority basis.
To take steps for listing such matters,
which are not ready for hearing, before an appropriate officer of
the Registry, instead of listing them in Court
whether it be the High Court
or the subordinate Courts.
It
is felt that these steps, if taken in right earnest, will got a long
way in reducing arrears and expediting disposal of cases.
Sanctioned
strength of the High Courts was 726 and working strength was 611 as
on 1st January, 2007 leaving 115 vacancies.
Sanctioned strength of Subordinate Judges was 14477 and working
strength was 11767 and leaving vacancies 2710 as on 31st
December, 2006.
The
average disposal per Judge comes to 2374 cases in High Courts and
1346 cases in Subordinate Courts if calculated on the basis of
disposal in the year 2006 and working strength of Judges as on 31st
December, 2006. Applying this average, we require 1539 High
Court
Judges and 18479 Subordinate Judges to clear the backlog in one
year. The requirement would come down to 770 more High Court
Judges and 9239 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.
Several
statutes like Indian Penal Code, Code of Civil Procedure, Code of
Criminal Procedure, Transfer of Property Act, Contract Act, Sale of
Goods Act, Negotiable Instruments Act etc., which contribute to more
than 50% to 60% of the litigation in the trial Courts are Central
enactments, referable to List I or List III and these laws are
administered by the Courts established by the State Governments.
The number of Central laws which create rights and offences to be
adjudicated in the subordinate Courts are about 340. It is
obvious that the central Government must establish Courts at the
trial level and appellate level and make budgetary allocation to the
States to establish these courts to cut down backlog of cases arising
out of these central statutes. The central Government must
estimate and pay for their recurring and non-recurring expenditure of
the State Courts to the extent the Courts spend time to adjudicate
disputes arising out of central statutes. Article 247 of the
Constitution enables Union Government to establish additional courts
for better administration of laws made by Parliament or of any
existing law with respect to a matter enumerated in the Union List.
This Article is specially intended to establish courts to enable
parliamentary laws to be adjudicated upon by subordinate courts but
has not been resorted to so far.
So
far backlog in subordinate courts is concerned, additional courts
must be created and additional judicial officers must be appointed
till the backlog is cleared. Ad hoc Judges under Article 224A
of the Constitution should be appointed to clear the backlog in the
High Courts for a period of five years or till the backlog is
cleared. All the cases which are pending in the High Court
for two years or more can be allocated to these ad hoc judges.
Since the annual institution in High Courts as well as in subordinate
courts exceeds their respective annual disposal, additional judges in
High Courts as well as in subordinate courts should be appointed on
permanent basis to deal with the increase in institution over the
disposal.
As
per the information collected by First National Judicial Pay
Commission, every state except Delhi has been providing less than 1%
of the budget for subordinate judiciary whereas the figure is 1.03%
in case of Delhi. During Tenth Plan (2002-2007), the allocation
was Rs. 700 crores, which is 0.078 per cent of the total plan outlay
of Rs.8,93,183 crores. Such meager allocations are grossly
inadequate to meet the requirements of judiciary. Governments
therefore need to allocate adequate funds for additional manpower.
As
many as 2710 posts of Judicial Officers were vacant in Subordinate
Courts as on 31st December, 2006. Sincere attempts
should be made to fill up these vacancies at the earliest possible.
For this purpose examination for recruitment of Judicial Officers
should take place atleast twice a year and a panel of suitable
officers should be prepared to fill up the vacancies arising till the
preparation of next panel.
The
resolution passed by the last Chief Justices’ Conference on this
subject may please be seen at item Nos. (1), (2), (3) and (4).
Establishment
of additional courts at any level involves enormous expenditure –
capital as well as recurring. Appointment of wholetime staff –
judicial and administrative for new courts involves considerable
recurring expenditure. On the other hand, if the existing
courts could be made to function in two shifts, with the same
infrastructure, utilizing the services of retired Judges and Judicial
Officers, reputed for their integrity and ability, who are physically
and mentally fit, it would ease the situation considerably and
provide immense relief to the litigants. The accumulated
arrears can be liquidated quickly and smoothly.
Shift
system has been in vogue in industrial establishments since long.
It was introduced in educational qualifications to cope up with
increased demand. It is high time to introduce it in Courts as
well.
The
existing court
buildings, furniture, library and other infrastructure and equipment
could be used for the second shift. Re-employment of retired
judges, Judicial Officers and administrative staff would be far less
burdensome to the exchequer, as they would be paid only the
difference between the salaries and emoluments payable to serving
judges and officers of the same rank and their pension. The
induction of experienced judicial personnel who enjoy high reputation
for their integrity and ability will add to the credibility of the
judicial system as a whole. With their rich experience they
will be able to dispose of cases quickly and clear the arrears fast.
Also,
the prospect of re-employment after retirement of the upright and
efficient judges and judicial officers will act as a incentive to
serving judges and judicial officers to remain honest and discharge
their duties to the satisfaction of all concerned. The
reservoir of judicial experience readily available in the shape of
retired judges and judicial officers is a precious human resource
which we can hardly afford to waste.
In
State of Gujarat 30 evening Courts have already started functioning
and they disposed of 16153 cases between 14th December to
27th December, 2006.
Whenever
a person has civil dispute with someone, he would go to a lawyer. In
our country, lawyer would advise him to file a case in a Court
of law for redressal of his grievance. If he receives a
legal notice, the advice of lawyer would be either not to respond or
send a reply through him. But this is not the position in the
other countries, such as USA where a person going to lawyer, is
advised to go for negotiation with the other party. Both the
parties, generally represented by lawyers, would discuss and try to
resolve the dispute by negotiations and the success rate is very
high.
Litigation
through the Courts and Tribunals established by the State is one way
of resolving the disputes. The Courts and Tribunals adjudicate
and resolve the dispute through adversarial method of dispute
resolution. Litigation as a method of dispute resolution leads
to a win-lose situation. Associated with this win-lose
situation is growth of animosity between the parties, which is not
congenial for a peaceful society. One party wins and other
party is a loser in litigation, whereas in Alternative
Dispute Resolution, we try to achieve a win-win situation for both
the parties. There is nobody who is loser and both parties feel
satisfied at the end of the day. If the ADR method is
successful, it brings about a satisfactory solution to the dispute
and the parties will not only be satisfied, the ill-will that would
have existed between them will also end. ADR methods especially
Mediation and Conciliation not only address the dispute, they also
address the emotions underlying the dispute. In fact, for ADR
to be successful, first the emotions and ego existing between the
parties will have to be addressed. Once the emotions and ego
are effectively addressed, resolving the dispute becomes very easy.
This requires wisdom and skill of counseling on the part of the
Mediator or Conciliator.
The
alternative modes of disputes resolution include arbitration,
negotiation, mediation and conciliation. The ADR system by
nature of its process is totally different from Lok Adalat. In
Lok Adalat, parties are encouraged to come to compromise and
settlement on their own, whereas in the mediation and conciliation
system, the parties have before them many alternatives to solve their
difference or disputes. Instead of obtaining a judgment or
decision, the parties through ADR might agree for a totally new
arrangement, not initially agreed or documented.
Negotiation
as the term implies, signifies resolving disputes by dialogue.
In fact, we negotiate everyday willingly or unwillingly – even when
there is no dispute. We go to shop to buy– we negotiate with
shopkeeper; we have to buy property, we negotiate through a dealer.
When there are disputes between management and workers, union would
send charter of demand to the management which would be followed by
negotiations, which take place across the table between
representatives of the workers and the management.
The
mediator has a diverse role to play. He will act as a link
between the two contesting parties. He will ascertain the
nature of real dispute and narrow-down the areas of controversy.
He will guide the parties in which direction they can arrive at a
compromise or settlement. He can, if necessary, prepare
documents suggesting arrangements for resolving their disputes.
In U.S.A. there are private mediation firms which employ full time
mediators and possess infrastructural facilities to hold a large
number of mediations. More people go to such firms rather than
wait in Courts. Also, there are Court
Annexed Mediation Centres, running on funds made available by the
Government. There are thousands of lawyers practising
exclusively as mediators. Retired Judges also act as
mediators. There are mediators who specialize in various
branches such as intellectual property, accident, commercial cases
etc. and more than 90% of the cases do not go to trial.
Sections
61 to 81 of the Arbitration and Conciliation Act, 1996 contain
the detailed scheme of conciliation. Section 67 of the Act also
contemplates that the role of the conciliator is the same as the role
of the mediator in the American legal system. In fact,
conciliation and mediation are generally interchangeable.
The
main problem being faced in this regard is that there are not many
trained mediators and conciliators. Also, there are very few
trained personnel to impart training to prospective mediators and
conciliators including Judicial Officers and members of the Bar,
about Alternative Disputes Resolution methods and pre-trial
settlement of cases. Judicial Officers are already overburdened
and find no time to adopt these modes of Alternative Disputes
Resolution. Senior Judicial Officers having aptitude for ADR
methods should be trained in mediation, conciliation etc. and made
incharge of mediation and conciliation centres. They can also
be asked to provide training to prospective mediators and
conciliators who can then undertake the task of settlement of
disputes by way of mediation/conciliation. However,
ultimately the responsibility of mediation has to be on the shoulders
of members of Bar.
Code
of Civil Procedure has recently been amended by incorporating Section
89 with a view to bring alternative systems into the mainstream.
However , we are yet to develop a cadre of persons who will be able
to use these ADR methods in dispensing justice. Lawyers by and
large still believe that litigation is the way of resolving
disputes. Litigants are also advised accordingly. The
challenge that we are facing today is bringing about awareness among
the people about the utility of ADR and simultaneously developing
personnel who will be able to use ADR methods effectively with
integrity.
We
have to identify the target groups. It could be retired judges,
senior advocates etc. on whom litigating parties can have faith. A
section of lawyers will have to be trained for functioning as
mediators and conciliators. This job requires not only
knowledge of law but tact, skill and capacity to bring parties to
terms. This is a new challenge before the legal profession.
They will now have to develop expertise to act successfully as
mediators and conciliators.
It is also necessary to
provide adequate infrastructure for conciliation/mediation centers by
giving them adequate space and manpower and other facilities.
In Salem Advocates Case [2005 (6) SCC 344], Supreme
Court
has appreciated the suggestion that expenditure of compulsory
conciliation/mediation envisaged in Section 89 of CPC should be borne
by the Government since it may encourage parties to come forward and
make attempts at conciliation/mediation. Central Government was
directed to examine the suggestion and if agreed request the Planning
Commission and Finance Commission to make specific allocation for
Judiciary for incurring the expenses for mediation/conciliation under
Section 89 of Code of Civil Procedure.
Government
is the biggest litigant and if government is to be involved in this
ADR system in negotiation and mediations etc. its officers would have
to take lead in this cause.
National
Plan for Mediation, prepared by National Judicial Academy, envisages
systemizing and institutionalizing mediation, training of mediators,
preparation of training material, organizing awareness programmes and
setting up Mediation Centres, in three phases, spread over for a
period of five years, for resolution of disputes through settlement.
This will not only provide speedy and inexpensive justice and reduce
litigation, but will also bring peace and harmony in the society
A
copy of National Plan for Mediation, prepared by National Judicial
Academy, is Annexure-1 to this note.
Regular
training and orientation sharpens the adjudicatory skills of Judicial
Officers. A good training programme serves the futuristic needs
of the system by improving the potential to optimum level. If
judgments at the level of trial courts are of a high quality, the
number of revisions and appeals may also get reduced. If
the Judge is not competent he will take longer time to understand the
facts and the law and to decide the case. The training needs to
include Court
and Case Management besides methods to improve their skills in
hearing cases, taking decisions, writing judgments. It is also
necessary to train Judicial Officers in the new legislations and the
expanding field of trade and commerce so as to keep them well
informed and enable them to handle new and complicated legal issues
in an efficient manner.
National
Judicial Academy was set up in Bhopal on 17th August,
1993, and it is imparting comprehensive training to Judicial Officers
at the level of District Judges. The courses and training
modules designed by National Judicial Academy have won appreciation
not only from the participants but also from the foreign visitors.
Eighteen
State Judicial Academies have been set up for States. Training
in State Judicial Academies is imparted mainly by senior Judicial
Officers and High Court
Judges. They have their independent curricula, induction
training as well as inservice education. There is an urgent
need to augment the capacity of these institutes by providing
dedicated faculty and necessary tools and equipments including study
material and technology required for imparting the training.
Computer operations and management skills also need to be imparted
through appropriate modules. First National Judicial Pay
Commission in Chapter 13 of its Report stressed for an imperative
need for organized programme of judicial education and training not
only at the time of selection and appointment, but on a continuing
basis. The Central and State Governments should allocate
sufficient funds for the purpose.
Carrying
out of judicial reforms and implementation of new initiatives such as
modernization and computerization of Courts and use of Alternative
Dispute Resolution methods require participation of and concerted
efforts from not only Judges but also from Court
personnel, who manage the system. Therefore, extensive training
including training while on work, needs to be given to Court
staff as well so as to harness and enhance their knowledge and skills
and also to motivate and gear them up, for the task assigned to
them. Trained Court
staff can be of immense help in categorization of cases, grouping and
bunching of the matters involving similar questions of law and / or
facts, preparation of cause list, listing of matters, maintenance of
old record including its digitization, proper maintenance and upkeep
of infrastructure, including Court
libraries, application of Information and Communication Technology in
Justice Delivery System and proper management and utilization of the
resources available to Judicial Institutions.
National
Judicial Academy and State Judicial Academies can play an important
role in appropriate training of Court
Administrators and Staff. Training modules and programmes
designed by one Academy can be utilized by other Academy as well, to
train the Officers and officials of the Courts within their
respective States.
National
Judicial Education Strategy, prepared by National Judicial Academy,
seeks to enhance the performance of Judges by equipping them with
better knowledge, tools and techniques, including court
management processes and arrears reduction methodologies.
A
copy of the National Judicial Education Strategy, prepared by
National Judicial Academy, is Annexure-1 to this note.
Increase
in the number of Judicial Officers will have to be accompanied by
proportionate increase in the number of court
rooms. The existing court
buildings are grossly inadequate to meet even the existing
requirements and their condition particularly in small towns and
moffusils is pathetic. A visit to one of these Courts would
reveal the space constraints being faced by them, over-crowding of
lawyers and litigants, lack of basic amenities such as regular water
and electric supply and the unhygienic and insanitary conditions
prevailing therein.
The
National Commission to review the working of the Constitution noted
that judicial administration in the Country suffers from deficiencies
due to lack of proper planned and adequate financial support for
establishing more Courts and providing them with adequate
infrastructure. It is, therefore, necessary to phase out the
old and out-dated court
buildings, replace them by standardized modern court
buildings coupled with addition of more court
rooms to the existing buildings and more court
complexes. In order
to ensure that the new buildings meet all the requirements of the
courts and their officers, it is desirable to prepare standard
building plans and construct buildings accordingly. In order
to provide information to the litigants it is necessary to have
facilitation centres in each court
complex which should be manned by competent court
officers and should be linked to the computer network.
In
the Ninth Plan (1997-2000), the Centre released Rs.385 crores for
priority demands of judiciary which amounted to 0.071 per cent of the
total expenditure of Rs.5,41,207 crores. During Tenth Plan
(2002-2007), the allocation was Rs.700 crores, which is 0.078 per
cent of the total plan outlay of Rs.8,93,183 crores. Such
meagre allocations are grossly inadequate to meet the requirements of
judiciary. Unlike in other departments of the Government, more
than half of the amount which is spent on Indian Judiciary is raised
from the Judiciary itself through collection of court
fees, stamp duty and miscellaneous matters.
The
Governments should provide adequate funds at the disposal of the High
Courts for augmenting the infrastructure. There is a plan
scheme of the Government – Centrally Sponsored Scheme for
Development of Infrastructure in Judiciary, which includes
construction of court
buildings and residential accommodation for Judges/Judicial Officers,
covering High Courts and subordinate Courts. The Central
Government’s share is restricted to the funds made available by the
Planning Commission and the expenditure under the Scheme is
shared by the Central and State Governments on 50:50 basis. It
is seen that sometimes State Governments do not release matching
grant. Consequently, central grant is not released and either
the Scheme lapses or it does not take off. State Governments
should release the matching grant, so that Central Government share
of the grant can also be utilized.
National
Judicial Infrastructure Plan has been prepared by National Judicial
Academy provides for upgrading and augmenting judicial infrastructure
such as buildings, equipment, software, knowledge, resources, human
resources, facilities and systems, so as to make it capable of
providing access to justice to all the sections, particularly those
belonging to lower strata of the society. The programme
envisages establishment of atleast one well-equipped Functional
Court, per one lakh of population, at a place accessible to the
common man. It proposes to develop new initiatives such as
Mobile Courts, Fast Track Courts and second shift in the existing
courts, and evolve suitable techniques and uniform practices and
procedures, aimed at reduction of delays and overcrowding of courts.
A
copy of the National Judicial Infrastructure Plan, prepared by
National Judicial Academy, is Annexure-1 to this note.
In
this era of globalization and rapid technological developments, which
is affecting almost all economies and presenting new challenges
and opportunities, judiciary cannot afford to lag behind and has to
be fully prepared to meet the challenge of the age. A review of
the process of computerization of Courts would reveal that use of
Information and Communication Technology is growing despite so many
constraints. There have been many successful applications of
the Technology in various States.
Inter-court
and Intra-court communication facilities, developed through use of
Internet not only save time but also increase speed and efficiency.
Day-to-day management of Courts at all levels can be simplified and
improved through use of Technology including availability of Case Law
and administrative requirements. Congestion in Court complex can also
be substantially reduced through electronic dissemination of
information. The objectives that can be achieved through use of
technology include transparency of information, streamlining of
judicial administration and reduction of cost.
Computerisation
entered judiciary in early 90s with installation of a few computers
in Supreme Court of India. The initiative taken by the Apex
Court was followed by various High Courts, some of which started use
of computer in their routine work by 1995.
Courts
have always faced shortage of funds for I.T. projects and till the
year 2000 only Rupees five crores were provided for computer facility
in Supreme Court and High Courts. Hardware becomes
obsolete within a few years but the Courts are still depending upon
the same old hardware for their day-to-day functioning. Despite
constraints, Supreme Court of India has been able to achieve a number
of successes in the filed of computerization of Courts. These
include:-
Availability of judgment and
daily orders of Supreme Court on its website, within 24 hours of
delivery, which can also be downloaded, thereby eliminating the need
to travel to the Court to obtain a copy;
Availability of case status
such as lower court details, names of parties and advocates, date on
which the matter was last listed, the date on which matter is likely
to be listed next and date of disposal in case of disposed of
matter, thereby enabling a litigant to maintain his own case file by
down loading all details including orders passed from time to time;
Availability of all the Cause
Lists on the website, thereby enabling location of the case through
name of either party or case number on Internet as well as by use of
Interactive Voice Response System;
Availability of
all reported judgments of Supreme Court from 1950 till date on the
web.
E-Kiosks installed in the Court
premises enabling access to the computerized information without
knowing computer;
Digitization of old records by
way of scanning and storing them on CD-Rom and hard disks which will
help in getting the entire Record Room space free.
Bar Coding system for the books
and stores.
Computerised Attendance
Recording System based on identification on the basis of finger
prints.
Digital signatures
are being introduced very shortly. Necessary hardware and
software for the purpose has already been procured and the users are
being trained for use of digital signatures. It will now be
possible to issue digitally signed certified copies without calling
for the original record for the purpose. It will also enable a
litigant to get the authenticated copy of every judgment or order
while sitting at home.
In
some of the High Courts many of these facilities have already been
made available. It is necessary that the remaining High Court
do not lag behind and provide all these facilities as well as such
other facilities as they may deem appropriate so as to achieve
maximum efficiency and transparency in the system.
COMPUTER
LITERACY
It
is not possible to promote usage of ICT in courts, unless proper
training at all levels is imparted to judicial officers as well as
subordinate staff. Regular training programmes need to be
organized for Judges as well as court officials. While on work
in house training can also be given to them. E-Committee is
proposing to provide laptops to all the Judicial Officers.
Unless they are made efficient in use of technology, they may not be
able to make full use of the facility being provided at considerable
cost.
VIDEO
CONFERENCING
Video
conferencing is a convenient, secure and less expensive option, for
recording evidence of the witnesses who are not local residents or
who are afraid of giving evidence in open court, particularly in
trial of gangsters and hardened criminals, besides savings of time
and expenses of traveling. Recently, Code of Criminal Procedure
has been amended in some States to allow use of Video Conferencing
for the purpose of giving remand of accused persons thereby
eliminating need for their physical presence before the Magistrate.
This has reduced the burden on police force as they do not have to
ferry prisoners to and from jails, besides ruling out the incidents
of skirmishes in lockups and jails, possibilities of attack on
under-trials while being produced in court as also of smuggling of
un-permitted articles into Jail.
Video
conferencing can be of immense use to National Judicial Academy and
State Judicial Academies, if there is video linkage between National
Judicial Academy and all the State Judicial Academies as well as
inter-se amongst State Judicial Academies, it will be possible to
give training without physical presence of the participants in the
premises of the Academy which is conducting the training programme.
Resources available in one academy can be used to train all the
participants, including those present in other academies. The
interaction amongst the participants would be more convenient and
even remote participants will get much of the face to face
familiarity that comes with physical presence including element of
facial expression, body language and eye contact. National
Judicial Academy has decided to establish video linkage between
Supreme Court, NJA & State Judicial Academies and steps are being
taken to implement the decision.
E-FILING
E-filing
has been introduced in Supreme Court on 2nd October,
2006. It has now possible for any Advocate-on-Record or
petitioner-in-person to file his matter through internet, sitting
anywhere in the world. A user friendly program with interactive
features has been prepared by N.I.C. for this purpose.
Detailed step by step guidelines for E-Filing have been made
available on the website of Supreme Court of India. The prescribed
court fee and printing charges @ Rs.1.50 per page can be paid through
any Visa/master credit/debit card. No additional court fee or
processing fee would be required for E-Filing. Every
Advocate-on-Record will be given a password by the Registry. It
is possible for him to change the password by accessing the website.
Since password is known only to the concerned Advocate-on-Record, it
is not possible for any other person to file any matter or document
on his behalf. Petitioner-in-person has, however, to submit proof of
his identity such as Ration Card/PAN Card/Identity Card/Driving
Lincence/Voter I.Card by scanning the document. The text can be
typed on the computer whereas documents including affidavits and
vakalatnamas can be submitted by scanning them.
Counter/rejoinder/fresh applications/ caveat/ additional documents
can also be filed through internet either by Advocate-on-Record or by
petitioner-in-person. It is be possible to make any
modification/changes before the matter is finally submitted to the
Court. A matter has to be in conformity with Supreme Court
Rules and free from filing defects before it is registered through
computer. A unique reference No. is be given to every user, for
each case. Every matter is scrutinized to identify the filing
defects, if any. The defects found by the Registry are
communicated to the petitioner-in-person/Advocate-on-Record, as the
case may be, through E-mail and it is possible for him to remove the
defects by accessing his matter through internet, using the reference
No. given to him by the system. The notices/communications to
the parties shall be sent through E-Mail wherever E-Mail I.D. is
provided.
E-COURT
An
E-Court should be equipped with user friendly facilities such as
video conferencing, multimedia presentation of evidence and case law,
electronic documentation and exhibits handling, all integrated into a
centrally controlled network. It is supposed to be a
paperless Court, where the case file is ready on the monitor, orders
are passed by the Hon’ble Judges using dictation software and are
digitally signed and then delivered through E-mail.
One
E-Court has been set up in the Supreme Court premises, which apart
from facility of E-filing, also has facility for multimedia
presentation facility, is ready for loading of dictation software and
can also enable remote arguing as and when video conferencing is made
available.
Though
at present concept of E-Court may appear to be a futuristic plan, the
High Courts should explore the possibility of having E-Courts
initially on experimental basis.
On
the recommendations of the 11th Finance Commission 1734
Fast Track Courts were sanctioned for disposal of long pending
Sessions and other cases out of which 1549 were functional when the
Scheme was to end on 31st March, 2005. The term of
1562 Fast Track Courts has been extended for another five years.
The figures of disposal by Fast Track Courts of Sessions Judges shows
that these Courts have been quite successful in reducing arrears.
Most
of the criminal cases in Subordinate Courts are pending at the level
of Magistrates. Keeping in view the performance of Fast Track
Courts of Session Judges and contribution made by them towards
clearing the backlog of cases, Government of India should formulate a
similar scheme for setting-up of Fast Track Courts of Magistrates in
each State/Territory. Cases from regular Courts can be
transferred to Fast Track Courts of Magistrates for quick disposal.
Joint
Conference of Chief Ministers of States and Chief Justices of the
High Courts held on March, 11, 2006, took the following decision this
regard.
The
pendency of civil cases in Subordinate Courts, though, not as large
as of criminal cases, is quite huge. Institution, disposal and
pendency of civil cases in Subordinate Courts during the last eight
years are as under:
|
CIVIL CASES
|
|
YEAR
|
INSTITUTION
|
DISPOSAL
|
PENDENCY AT THE END OF THE
YEAR
|
|
1999
|
3302042
|
3217516
|
7020973
|
|
2000
|
3170521
|
3186753
|
6925913
|
|
2001
|
3373469
|
3140099
|
7211809
|
|
2002
|
3385715
|
3342653
|
7254871
|
|
2003
|
3170048
|
3121978
|
7302941
|
|
2004
|
3697242
|
3726970
|
7042245
|
|
2005
|
4069073
|
3866926
|
7254145
|
|
2006
|
4007147
|
4014475
|
7237495
|
The
pendency of Civil Cases in Subordinate Courts has increased from
6925913 as on 31st December, 2000 to 7237495 cases as on
31st December, 2006. It is common knowledge that a
large number of pending Civil Cases are very low. Huge arrears
of Civil Cases cannot be wiped out by regular courts. It would,
therefore, be necessary that at least part of pending civil
cases are also transferred to Fast Track Courts for disposal, so that
regular Civil Courts can deal with remaining cases and fresh
institutions and decide them expeditiously. Initially, the
cases which are pending for more than three years can be transferred
to Fast Track Courts, for disposal.
Judiciary
is always held responsible for mounting arrears of Court Cases.
But it does not control the resources of funds and has no powers to
create additional Courts, appoint adequate Court staff and augment
the infrastructure required for the Courts. For this reason,
the shift system cannot be introduced. The High Courts have power of
superintendence over the State judiciary but do not have financial
power to create even post of one Subordinate Judge or subordinate
staff or to acquire land or purchase building for setting up Courts
or for their modernization.
The
National Commission to review the working of the Constitution noted
that neither had any provision for funds for the judiciary been made
under the Five years Plan for several decades nor the Finance
Commission made any provision to serve the financial needs of the
Courts.
Ideally,
judiciary should be given autonomy with regard to the creation of
posts, allocation of project and incurring of expenditure. For
this purpose the Governments must allocate adequate percentage of its
funds for judiciary and all the expenditure on judiciary should come
from the planned funds. Confirmant of financial autonomy
by earmarking the funds generated by the Courts in a separate
account and giving expert financial assistance through officers
deputed from Comptroller and Auditor General, with full power to the
Chief Justice to spend this amount will go a long way in meeting the
requirements of judiciary.
However,
the Governments have been reluctant to grant complete Financial
Autonomy to the High Courts. It is, therefore, suggested that
limited Financial Autonomy may be given to the High Courts by way of
the following:
budgetary
demands made by the High Courts which are generally bare
necessities need to be accepted ordinarily and allocation made by
way of planned expenditure;
within the
over all budgetary limit the Chief Justice/High Court should have
power to appropriate and reappropriate the funds; and
the High Courts need to have better and
more professionalised accounting system as also a system of internal
audit.
Joint
Conference of Chief Ministers of States and Chief Justices of the
High Courts held on March, 11, 2006, took the following decision this
regard.
Article
235 of the Constitution of India vests control over District Courts
and subordinate courts thereto, in the High Court. In exercise of
this supervisory power, High Courts are required to keep vigilance on
subordinate Judicial Officers so as to have a check on misadventures
by an errant officer. Inspection of subordinate court is one of
the most important functions which the High Court performs for
control over the subordinate courts. The object of such
inspection is assessment of the work performed by a subordinate
Judge, his capability, integrity and competency. It also
provides an opportunity to the Inspecting Judge to point out the
mistake and deficiency committed by the Judicial Officer so that he
may avoid them in future. Remarks recorded by the Inspecting
Judge are normally endorsed by the Full Court and become part of
Annual Confidential Report and are foundations on which the career of
a Judicial Officer is made or marred. Inspection, therefore,
has to be both effective and productive. It should not be a
one-day or one-hour or few months’ affairs and round the year
monitoring of the work of a Judicial Officers by the Inspecting Judge
is required. If used properly, it can be an effective tool in the
hands of the High Court, to keep a check on Judicial Officers, and
for regular assessment of their performance.
Though
vigilance cells have been constituted in every High Court, it is felt
that the process adopted and the methodology used by them does not
yield quick and effective results. These cells have not been
able to achieve the desired deterrent effect and earn confidence of
the litigating public. Inquiries conducted by these cells do
not proceed expeditiously and are not monitored regularly. They
seem to be satisfied with processing the complaints received by the
High Court, which many a times may be motivated and mala fide.
There is an imperative need to galvanize the working of these cells
in order to achieve the desired results. It is also necessary
that these cells are headed by Senior Judicial Officers of proven
merit and integrity, who work under direct control of the Hon’ble
Chief Justice of the High Court.
As
suggested by the Joint Conference of Registrar Generals of High
Courts and Law Secretaries of the States held on 23rd
December, 2006 - ‘there should always be a Vigilance Cell in
each District, to be headed by a senior Judicial Officer. The
Vigilance Cell shall keep effective control on the staff of the
Courts and regularly monitor their activities so that the image of
the Courts is not tarnished in the eyes of general public. The
dates in the cases should invariably be given only by the Presiding
Officer and the practices and procedures should be streamlined so as
to minimize the contact of the litigants with the members of the
staff.’
Chief
Justices’ Conferences are convened periodically by Hon’ble the
Chief Justice of India. Heads of Judiciary in the States meet
and deliberate under the Chairmanship of Hon’ble the Chief Justice
of India, in the presence of two seniormost Judges of the Apex Court
and take policy decisions on the matters, which are vital to and
materially effect the functioning of Judicial Administration.
It has, however, been found that the decisions taken in the
Conference, when sent to the Government, wherever required for
implementing them do not receive consideration at desired level.
Quite often, the decisions taken at the Conference are rejected on
the grounds such as financially not feasible/not agreed.
The
decisions taken by the Heads of Judiciary should not be dealt with in
casual manner and needs to be considered at highest level. It
has also been experienced that even if the decisions taken in the
Conference are accepted by the Government it takes unreasonably long
to implement them and requires constant pursuing by the High Courts.
It
is, therefore, necessary to evolve a permanent mechanism for
implementation of the resolutions passed at Chief Justices’
Conferences and at the Joint Conferences of Chief Justices’ and
Chief Ministers. The proposed mechanism can be a two-tier
mechanism, one at the level of Central Government and other at the
level of concerned State Government. The decisions taken by the
Central Committee shall be binding on all the departments, offices
and institutions of Central Government, whereas, the decisions taken
by the State Committees shall be binding on all departments, offices
and institutions of the concerned State Government.
In
the Conference of Chief Ministers of States and Chief Justices of
High Courts, held on 11th March, 2006, all the States
agreed that a permanent mechanism needs to be evolved to ensure
implementation of the decisions taken at Chief Justices Conference
and at the Joint Conference of Chief Ministers and Chief Justices, so
as to achieve the objective of convening such Conferences.
There was consensus in favour of setting-up monitoring Committees at
the level of Centre as well as at the level of States.
It was decided that Monitoring Committees at two levels be set-up in
each State for timely implementation of the decisions taken at Chief
Justices’ Conference and Joint Conference of Chief Ministers and
Chief Justices. The first level Committee should consist of
Chief Secretary, Registrar General of the High Court and Law
Secretary of the State, whereas the second level Committee should
consist of Chief Minister, Chief Justice and Law Minister of the
State. Wherever such committees have already not been set-up,
immediate steps should be taken for constituting them at the earliest
possible.
Subordinate
Judicial Officers are being recruited by State Public Service
Commissions in many States, which results in undue delay in
appointments, as the Commissions have to make recruitment for a large
number of Services & Departments. The Services of
paper setters and examiners possessing required experience, training
and expertise may not always be available to these Commissions.
It
is felt that High Courts are more suitable to make recruitment and
appointments to Judicial Services. They are better equipped to
conduct the written test and assess the overall merits of the
candidates, during interview etc. For setting and checking of
papers, they can utilize the services of High Court Judges as well as
of Senior District Judges, who have the requisite qualifications,
training and experience and are in a better position to know what is
expected from a Judicial Officer for efficient discharge of his
duties. The States where recruitment to Judicial Service is being
done by Public Service Commissions, should therefore, take necessary
steps for entrusting this process to the concerned High Courts on
recommendation in that regard being made by High Courts.
Joint
Conference of Chief Ministers of States and Chief Justices of High
Courts held on March 11, 2006, took the following decision in this
regard.
In States of
Himachal Pradesh, West Bengal, Punjab and Kerala, setting up of
question papers and evaluation of answer sheets be entrusted to the
High Court. In other States, where selection of subordinate
Judicial Officers is not being made by the High Court, such
selection be entrusted to the High Court, by amending the relevant
rules.
(i) Written
Statement: Order VIII, Rule 1 of Code of Civil Procedure
requires the defendant to file the written statement within 30 days
from the date of service of summons and ordinarily, the Court also
should not extend the time for filing the written statement beyond 90
days from the date of service of summons. As held by Supreme
Court in Salem Advocates Bar Association’s case , only in
exceptional cases the Court should permit filing of written statement
beyond the upper limit of 90 days.
Our
system gives no incentives for honesty and reasonableness on the part
of a litigant nor are there sufficient disincentive or penalties for
dishonesty and/or unreasonableness. If we want to curb
dishonest practices on the part of unscrupulous litigants, it is
imperative that the delay must hurt dishonest litigants more than
honest litigants.
(ii) Costs: If
the costs imposed upon the defaulting party or the party responsible
for delaying the matter are realistic, he/she will be discouraged
from prolonging the case as there won’t be much incentive left for
causing delay in trial. The costs have to be actual reasonable
costs including cost of time spent by successful party, cost of
transportation and lodging, if any and other incidental costs besides
Court fee, lawyers fee, typing charges etc. High Courts should
immediately make rules and regulations or give practice directions so
as to provide appropriate guidelines for subordinate Courts in this
regard, as mandated by this Court in Salem Advocates case, wherever
this has already not been done.
(iii) Examination
of Parties: Order X Rule 2 of Code of Civil Procedure
mandates the Court to examine orally such of the parties to the suit
appearing in person or present in Court, as it deems fit with a view
to elucidate the matters in controversy in the suit. It is seen
that the Courts do not always examine the parties in terms of the
statutory provision. It is likely that if the parties are
thoroughly examined with reference to the averments made in the
pleadings, they will admit many facts, thereby reducing the necessity
of recording evidence. The Court should, therefore, always
direct personal appearance of the parties with a view to examine them
under Order X Rule 2 of the Code of Civil Procedure.
(iv) Discovery
and Inspection: The provisions of Order XI of Code of Civil
Procedure providing for discovery by interrogation, production and
inspection of documents are not used frequently. If full use of
these provisions is made, unnecessary evidence can be curtailed and
trial can be expedited.
(v) Issues:
Framing of issues is an important task to be performed by
the Courts after careful examination of the pleadings of the
parties. Only necessary issues of facts and law arising from
the pleadings should be framed. Sometimes, the suit can be
disposed of only on an issue purely of law covered by Order XIV, Rule
2 of the Code of Civil Procedure. Such an issue can be treated
as preliminary issue, instead of leaving it to be decided along with
issues of fact or mixed issues of fact and law.
(vi) Evidence
on Affidavits: It has been experienced that the entire
pleadings of the parties are almost reproduced in the affidavits of
witnesses instead of confining them to the fact required to be proved
by the witness. The Court should carefully scrutinize the
affidavits before serving copy on the opposite party and wherever it
is found that the scope of affidavit has been unnecessarily enlarged
by referring to the facts not to be proved by the witness or by the
referring to legal propositions in the affidavit, such affidavit
should be rejected with heavy costs.
(vii) Ex-parte
Injunctions: Order XXXIX, Rule 3 of the Code of Civil
Procedure contains a legislative mandate to the Courts not to grant
ex-parte injunction unless the very object of granting injunction
would be defeated by the delay. Wherever the Court proposes to
grant injunction without notice to the opposite party, it is
mandatorily required to record reasons for its opinion. If the
provisions are strictly adhere to, many frivolous suits will not be
pursued when an unscrupulous plaintiff is unable to secure ex-parte
injunction, which was the primary motive for filing civil suit.
Wherever ex-parte injunction is granted by the Court it must comply
with the provisions of the Rule 3A of Order XXXIX of the Code of
Civil Procedure by disposing of the injunction application within 30
days from the date on injunction was granted. If it is really
unable to do so, it is mandatorily required to record reasons for
such inability. However, it is experienced that the provisions
of Rule 3 are observed more in breach than in compliance. The
legislative direction must be honoured and every attempt should be
made to dispose of the injunction application within 30 days,
wherever the Court deems it appropriate to grant an ex-parte
injunction.
(viii) SERVICE
OF SUMMONS :
Service
of summons upon the parties and/or the witnesses is probably the most
import step in progress of the case and consumes a lot o time of the
court. The cases are frequently adjourned on account of
non-service of the parties or witnesses. The normal practice is
to serve the summon through a process server. Complaints are
often made that the process server connives with one party to the
case and on that account does not get the service effected.
Most of the times, the defendant is interested in delaying the case,
and in connivance with him the process server makes an incorrect
report such as the person summoned not being available or the house
having been found locked. Sometimes the plaintiff who has
obtained an ex-parte injunction or other such order, prejudicial to
the defendant, is not interested in getting service effected upon the
opposite party with a view to prolong the duration of ex-parte order.
In such an event it is not uncommon for the plaintiff to obtain an
incorrect report regarding non service of the defendant.
Similar practices are adopted for prolonging the trial by not
allowing the service to be effected on the witnesses.
As
far as the civil cases are concerned, Code of Civil Procedure, now
provides for transmission of summons not only by registered post but
also by courier, fax or e-mail. Hence the Court need not rely
exclusively on the process server and can liberally use the
alternative modes of service.
(ix) INTERLOCUTORY
APPLICATIONS:
Simultaneously
with institution of civil litigation, the process of filing
interlocutory applications (IAs) commences, which continues till the
judgment is pronounced. Such applications pertain to
dispensation with issuance of statutory notices against government
and statutory bodies, which otherwise is a condition-precedent for
maintainability of such suits, grant of temporary injunction, for
directing the defendants to furnish securities, appointment of
receivers, issuance of commissions, addition of parties, amendment of
pleadings, summoning of witnesses for examination, cross-examination,
re-examination and so on and so forth. A lot of judicial time
is spent on hearing and disposal of such applications. The
Courts need discourage, frivolous and unnecessary applications by
dismissing them with exemplary costs. As for as possible, such
applications should be heard and disposed of on the very first
hearing, so that an unscrupulous litigant is not able to gain time
and cause delay, which is the primary aim behind filing many such
applications.
(x) ADJOURNMENTS
A
notorious problem particularly in the trial courts is the granting of
frequent adjournments, many a times on flimsy grounds. This
malady has considerably eroded the confidence of the people in the
Judiciary. Adjournments not only contribute to delays in the
disposal of cases, they also cause hardship, inconvenience and
expense to the parties and the witnesses. The witness has no
stake in the case and comes to assist the court to dispense justice.
He sacrifices his time and convenience for this. If the case is
adjourned, he is required to go to the Court repeatedly. He is
bound to feel unhappy and frustrated. This also gives an
opportunity to the opposite party to threaten or induce him not to
speak the truth. The right to speedy trial is thwarted by
repeated adjournments.
Code
of Civil Procedure after its amendment w.e.f. 1.7.2002 permits
adjournment of not more than three times to a party during the
hearing of the suit. Recording of reasons is mandatory for granting
adjournment. The amendment further enjoins upon the court to make
such order as to costs occasioned by the judgment or such higher
costs as the courts deems fit thereby making awarding of costs
mandatory and linking it to the actual cost suffered by the opposite
party. Therefore, the legislature has already given ample power
to the court to exercise full control on the hearing and not permit a
party to delay the progress of the case. The grounds for
adjournment are numerous. Sometimes the number of cases set down for
trial on a day proves to be excessive, sometimes the court has the
time to try the case but the parties desire adjournment. A
number of cases are adjourned only because of convenience of the
advocates. Under the law a judge can refuse adjournment on the
ground of convenience of the advocate but in practice he rarely does
so. A judge becomes unpopular if he refuses adjournment on such
ground. It is noticed that civil work is concentrated amongst a
few leading advocates, who are unabale to attend all the cases
accepted by them. The Supreme Court, in the case of NG Dastane
v. Srikant Shivde [(2001) 6 SCC 135] taking note of the problem was
of the view that seeking unwarranted adjournment when witnesses are
present in the court without making any other arrangements for their
examination is a dereliction of advocate’s duty to the court and
such dereliction, if repeated, would amount to misconduct of the
advocate concerned.
Article
39A of the Constitution mandates the State to secure that the
operation of the legal system promotes justice on basis of equal
opportunity. The State is required to provide legal aid to
ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.
The
right of equality before law and equal protection of Laws, granted to
our citizens, irrespective of their social and economic status will
remain illusory unless and until every citizen including those who
are from economically and socially backward classes are able to have
access to the Justice Delivery System by engaging an efficient and
competent Advcote, who can effectively place their case before the
Courts and seek justice for them. A large majority of our
people still live below the poverty line and are hardly able to
afford two square meals and a shelter on their head. It would
be unrealistic to expect them to afford the services of a competent
advocate. Therefore, it becomes necessary for the State to have
a strong legal aid system in place, which is capable of providing
free legal aid to the poor and downtrodden, by engaging competent
advocates who are motivated enough and have a zeal for legal aid
work.
Efforts
have been made by governments from time to time to address the issue
of granting legal aid to the poor but, enough has not been done and
the system requires further augmentation and strengthening. The
following steps if implemented in right earnest can substantially
strengthens the legal aid system in our country:--
1) Legal
literacy: Most of the people belong to lower strata of
the Society are still unaware of their legal right to receive legal
aid and the State mechanisms already in place for grant of such
aids. The benefits of social welfare legislations have not been
able to achieve their intended purpose on account of ignorance on the
part of the target citizens about the availability of various welfare
schemes initiated by the governments from time to time. Legal
literacy will make the citizens aware of their legal rights and
obligations, including their right to receive legal aid from the
State.
2) Legal Aid
Counsel: Unless the advocates provided by legal services
authority are competent and hard working, no useful purpose is served
by making their services available to the poor litigants. Legal
Service Authorities have to take suitable steps to ensure that they
empanel and provide only reputed counsel of proven ability and
integrity, in whom the poor litigants may repose trust. There
is reluctance on the part of senior counsel to come forward, to
provide legal aid to the needy persons. They have to be
persuaded to acknowledge their social obligations to the society in
this regard and provide their service to the weaker sections, without
expecting any remuneration either from them or from the Legal Service
Authorities.
3) Legal Aid
Camps: Legal aid camps are an effective tool for
spreading legal literacy, encouraging people to resolve their
disputes amicably and availing the benefit of legal aid, wherever
required by them. Legal Service Authorities have been
organizing such camps from time to time but there is need to organize
more such camps so that maximum people can derive benefit from them.
4) Law
students: The services of law students can be effectively
utilized to strengthen the legal aid system. They can be
particularly helpful in spreading legal literacy and facilitating
negotiated settlement of disputes.
5) Role of
Non-governmental organizations: Non-governmental
organizations can render substantial help in promoting legal aid
services including spreading of legal literacy and resolution of
disputes by establishing contact with the target citizens and making
their services available to them.
6) Judicial
Officers: It is the duty of every judge to ensure that no
litigant suffers injustice on account of his inability to avail the
services of an advocate. It is, therefore, necessary to
sensitise judicial officers about the need to inform the litigants of
their right to get legal aid at State expense in case they are unable
to engage a counsel on account of indigency and to advise them to
approach the nearby Legal Service Authority for making available the
services of a competent lawyer to them.
7) Panchayats: Village
Panchayats are a strong pillar of our Public Administration System.
Members of Panchayats can play a very useful role in spreading legal
literacy, guiding the villagers and persuading them to come to a
negotiated settlement to resolve their disputes particularly in civil
matters and in cases of petty offences.
