India - Making a case for more funds

M J Antony


New laws put more burden on the judicial system but the financial impact is not evaluated.


Amidst the encircling economic gloom, there was a little news item last week which should bring cheer to pensioners and legal personnel: the Employees Provident Fund Appellate Tribunal has moved from the Ambassador car in which it was functioning to a pucca building in the capital. The upward movement of this national apex body was a telling comment on the budgetary neglect of the judiciary by the governments. The same day, the Supreme Court was hearing a petition in which more funds are being sought for the judiciary (Salem Advocates Bar Association vs Union of India).

The six long years spent on hearing this case have yielded two reports, drafted by a retired Supreme Court judge and some eminent men in the legal field. They have made some path-breaking recommendations which could revolutionalise the way the judicial system works. At present, the budgetary proposals for the courts are indifferently drafted and even more casually treated by budget-makers at the centre as well as in the states. As a result, the present allocation for the judiciary was 0.071 per cent, 0.078 per cent and 0.07 per cent of the Plan outlays in the Ninth, Tenth and Eleventh Plans. This has led to mounting arrears (3 crore cases) and tribunals working from Ambassador cars or structures that look like the stables of the ex-Maharajas. While developed countries have more than 100 to 150 courts per million population, the comparative figure for India is around 14. This is an abominable situation, especially in an over-legislated country where the law-makers wriggle out of every social or economic dilemma by drafting yet another Bill.

The report, submitted to the Supreme Court and the Law Ministry recently, hopes to change all that. One of the most important recommendations is the need for a judicial impact assessment before a new Bill is introduced in Parliament or state legislature. Normally, the bills are accompanied by a financial memorandum stating the expected expenditure on implementing the new law. However, it does not take into account the additional burden imposed on the judicial system. The report states that the judicial impact assessment must be made on a scientific basis for estimating the extra case load which any new Bill or legislation might add to the burden of the courts. The expenditure required for adjudication of such cases must be estimated by the government and adequate budgetary provision must be made for it. This exercise should be done by both the Union and state governments. This is an exercise prevalent in other advanced democracies.

Entry 11-A of the Concurrent List of the Constitution makes it obligatory for the central government to bear the financial burden of the additional case load that gets added to the subordinate courts by virtue of the new legislation. However, in practice, the state governments are saddled with this cost too. Nearly 340 central legislations are referable to the Union List and the Concurrent List. They are administered by the subordinate courts financed by the state governments. This casts a duty on the Planning Commission and the Finance Commission to make adequate provision in consultation with the Chief Justice of India so that the lofty ideals of access to justice and speedy justice are realised.

The judiciary also must learn to prepare data and ask for funds. Till recently, even the Supreme Court was reluctant to disclose its statistics on the pending cases and the rate of disposal. While detailed medical and educational statistics are easily available, the thin judicial statistics are wrapped in black and stored in court registries. Unless there are statistical data indicating the rise in litigation due to new legislation, the judiciary and its protagonists cannot press their case for larger allocations.

The high courts are so ill-equipped in this field that the Chief Justices’ Conference held in April this year asked them to seek the help of outside professionals while making budget estimates. Lack of expertise in this field and absence of data and reasoning result in rejection of the demand for funds. As a result, the infrastructure and performance of the subordinate courts, where the citizen first encounters the judiciary, suffer.

The report recommend the establishment of a permanent ‘judicial impact office’ in Delhi to assess the cost flowing from each new parliamentary legislation. It should be headed by a sitting judge of the Supreme Court. Similar institutions should be set up at state levels. They should have experts in law, statistics and finance.

Though the state governments should support these recommendations, as the financial burden would be more equitably distributed, they have not shown sufficient enthusiasm to study the report. In fact, very few of them have even taken a copy of the report from the Supreme Court. Thus the case, instituted in 2002, is dragging along, with that chronic symptom of the system, adjournment upon adjournment.