Chief justices, Conference
SHORT NOTES ON PROPOSED AGENDA ITEMS
ITEM NO.1 PROGRESS ON IMPLEMENTATION OF THE RESOLUTIONS PASSED IN THE PREIVIOUS CHIEF JUSTICES’ CONFERENCE HELD IN MARCH, 2006
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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-parteinjunction/stay orders.
21. Strengthening legal aid systems.
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”
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.
ITEM NO.2 CONSIDERATION AND IMPLEMENTATION OF THE RESOLUTIONS PASSED AT THE CONFERENCE OF REGISTRAR GENERALS OF THE HIGH COURTS AND LAW SECRETARIES OF THE STATES/UNION TERROTIRIES HELD ON DECEMBER 23, 2006.
The following resolutions were passed in the Conference of Registrar Generals and Law Secretaries held in Supreme Court on December 23, 2006.
1. Progress made on the Resolutions passed in the conference of Registrar General of Supreme Court of India and Registrar Generals/Principal Registrars of High Courts held in 1999.
(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.
1(2) Regarding uniform nomenclature of various Subordinate Courts and various categories and posts in Subordinate Courts.
That the directions of the Hon'ble Supreme Court in the case of All-India Judges' Association vs. Union of India (2002 (4) S.C.C. 247) be implemented, wherever they have not been so far.
1(3) Regarding uniform High court Rules of Business and Rules relating to contempt of court.
That no further action is called for in view of the recommendation of the Committee of Hon’ble Judges.
1(4) Regarding streamlining of Copying Section.
That a computerized endorsement about the particulars of filing of the applications for copies and delivery thereof be entered and printed through a computer, wherever, it is already not being done.
1(5) Regarding computerisation in High Courts and District Courts inter-linking status reports case.
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 the Law Secretaries of the States shall impress upon the respective State Governments to expedite the process of grant of recurring expenditure on this account.
1(6) Regarding incentives to P.Ss./P.As. in District Judiciary.
1(7) Regarding training for staff of High Court and subordinate court.
That training be provided to the staff members of the High Court and Subordinate Courts. The training modules be prepared by the National Judicial Academy in consultation with the State Judicial Academies.
1(8) Regarding residential requirements of District Judiciary and its staff.
That the recommendations made in the 1999 Conference are reiterated and every Judicial Officer should get proper accommodation in keeping with his position and status.
That suitable accommodation be provided also to the staff of High Court and District Courts.
That the Law Secretaries shall take up the matter with their respective State Governments for proper funding wherever required for the purpose.
1(9) Regarding uniform norms for disposal of cases by judicial officers and uniformity for forms of their A.C.Rs.
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.
1(10) Regarding requirements of telephones at residences of judicial officers of district judiciary.
That the recommendations of First National Judicial Pay Commission, wherever not implemented, be implemented and the mobile handset with connection also be provided to Judicial Officers.
1(11) Sumptuary allowance for Principal Registrars.
1(12) Regarding Code of Conduct for district judiciary.
That Bhadoo Committee Report be again circulated to all the High Courts, and they may adopt it with such modifications as may be deemed appropriate.
1(13) Regarding rent free accommodation for judicial officers and Registrars and their earmarking.
1(14) Regarding elevation of Judicial Officers to High Courts.
That appointments to High Courts from amongst Judicial Officers should be at least fifty per cent of the Judges’ strength of the concerned High Court.
1(15) Regarding regional Conferences of Principal Registrars.
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 Conferences of Registrar Generals and Law Secretaries should be held at least two months before each Conference of Hon'ble Chief Justices of the High Courts.
1(16) Regarding calling of senior officers in Courts.
That the recommendations made in the 1999 Conference are reiterated.
1(17) Regarding need for Principal Registrars.
1(18) Regarding filling up of posts of CAT and SAT.
1(19) Regarding age for elevation.
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.
1(20) Regarding compliance of orders of Supreme Court.
That High Courts shall constitute a separate cell for implementation of the orders passed by the Hon'ble Supreme Court of India, wherever such a cell has already not been constituted.
II. Mutual exchange of views on --
a) Areas for coordination;
b) Court automation; and
c) Court management.
That there should be regular coordination and interaction on the areas of common interest.
III. Financial Management.
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.
2. Training for staff of the High Courts and Subordinate 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. Court Management.
3(1) Constitution of Benches and allocation of work.
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 the suggestions contained in the Agenda Item notes be examined and accepted by the High Courts, wherever found feasible, with such modifications as they may deem appropriate.
3(4) Maintenance of Buildings and Other Infrastructure
That the infrastructure particularly at the level of the subordinate courts needs to be augmented and the State Government should provide adequate funds for the purpose.
That wherever the High Court do not have a standardized plans for the Court Buildings, they can consider preparation and adoption of such plans as proposed in the Notes on Agenda Item.
That High Courts should consider outsourcing wherever deemed appropriate so as to minimize the expenditure and bring efficiency in various services.
3(5) Management of Court Records:
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.
That State Governments should provide the funds required for digitization and scanning of Court Record.
3(6) Procurement of materials, Library books and services.
That the High Courts may consider the acquisition procedure of Supreme Court for materials, services and Library Books and adopt the same with such modifications as may be deemed appropriate by them.
3(7) Budget and Accounts.
That fund requirements sent to the State Government should be supported by Project Reports and firm plans, and should be prioritized. Law Secretary should impress upon the State Government to meet all the budgetary requirements sent by the High Court.
3(8) Superintendence and control of subordinate courts.
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.
3(9) Interaction with Bar and Media.
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.
4. Steps required to be taken to improve coordination between the Executive and the Judiciary in the States.
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.
That Coordination Committees be set up in each district to deal with local problems, as proposed in the Notes on the Agenda item.
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 SupremeCourt 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:
Institution and disposal and pendency of Civil and Criminal cases in Subordinate Courts in the last eight years is as under:
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).
ITEM NO.4 CONSIDERATION OF INTRODUCING SHIFT SYSTEM IN SUBORDINATE COURTS.
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.
ITEM NO.5 CONSIDERATION OF NATIONAL PLAN FOR MEDIATION AND OTHER MEASURES REQUIRED TO BE TAKEN FOR STRENGTHENING A.D.R. SYSTEM.
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.
ITEM NO.6 NATIONAL JUDICIAL EDUCATION STRATEGY AND OTHER STEPS REQUIRED TO AUGMENT THE TRAINING OF JUDICIAL OFFICERS AND JUDICIAL STAFF.
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.
ITEM NO.7 NATIONAL JUDICIAL INFRASTRUCTURE PLAN AND OTHER STEPS REQUIRED TO BE TAKEN FOR AUGMENTING OF INFRASTRUCTURE FOR SUBORDINATE COURTS.
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.
ITEM NO.8 MODERNISATION AND COMPUTERISATION OF JUSTICE DELIVERY SYSTEM, ESTABLISHMENT OF E-COURTS AND VIDEO CONVERENCING FACILITIES.
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.
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 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 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.
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.
ITEM NO.9 SETTING-UP OF FAST TRACK COURTS OF MAGISTRAGES
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.
Item No. 6
Setting-up of Fast Track Courts of Magistrates
Fast Track Courts of Magistrages be set-up at the earliest, by evolving a suitable scheme, on the lines of the existing scheme for Fast Track Courts of Session Judges.
ITEM NO.10 SETTING UP OF FAST TRACK CIVIL COURTS.
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:
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.
ITEM NO.11 GRANTING FINANCIAL AUTONOMY TO THE HIGH COURTS.
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.
Item No. 7
Granting Financial Autonomy to High Courts.
Chief Justice of the High Court be delegated full power to appropriate and reappropriate the funds within the budget allocated by the State Government for the judiciary in the State;
Consistent with their financial resources, State Governments shall provide adequate budgetary allocation for judiciary.
ITEM NO.12 GEARING UP THE WORKING OF VIGILANCE CELL IN THE HIGH COURTS AND SETTING UP OF VIGILANCE CELLS IN EACH DISTRICT.
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.’
ITEM NO.13 ESTABLISHMENT OF A PERMANENT MECHANISM FOR IMPLEMENTATION OF RESOLUTIONS OF THE CHIEF JUSTICES’ CONFERENCES & THE JOINT CONFERENCE OF THE CHIEF MINISTERS AND CHIEF JUSTICES AND SETTING-UP OF COORDINATION COMMITTEES IN EACH DISTRICT.
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.
ITEM NO.14 ENTRUSTMENT OF SELECTION OF SUBORDINATE JUDICIAL OFFICERS, TO HIGH COURTS, WHEREVER REQUIRED.
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.
Item No. 10
Entrustment of selection of subordinate Judicial Officers to HighCourts, wherever already not entrusted
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.
ITEM NO.15 IMPROVEMENTS IN ADMINISTRATION OF CIVIL JUSTICE SYSTEM.
(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.
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.
ITEM NO.16 STRENGTHENING LEGAL AID SYSTEMS
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.