1. Our Constitution makers were keen to ensure that the Judiciary is independent of the Executive. The Constitution has tried to insulate the Judiciary from outside influence both from the Executive and the Legislature. Independence of judiciary is a basic structure of the Constitution. Independence of the judiciary constitutes the foundation on which rests the edifice of our democratic polity1.
2. With regard to subordinate Courts, the Constitution contains a group of Articles 233 to 237 in Chapter VI in Part VI under the heading Subordinate Courts. These provisions were also intended to ensure the independence of the Subordinate Judiciary2.
3. Courts, like all other branches of Government, belong to people. Indeed, of all branches of Government, Courts can be seen as the most open. Yet, the people know less about the Courts than they do about the Executive and the Legislature. People blame Courts for delay in disposal of cases; perhaps, not knowing the handicaps with which Courts function.
4. The general concept of judicial independence is that a Judge should be free of any pressure from the Government or any one else as to how to decide any particular case; for that reason, a Judges salary is not dependent on the Executive decision and his conditions of service are secured and not to be varied at the whim of the Executive. This is the general concept of judicial independence.
5. Ancillary to this concept, there is the obligation of the Judge to provide speedy and fair trial to litigants. The speedy trial is recognised as a fundamental right in our Constitution.
1. S.P. Gupta v. Union of India: 1981 Supp. S.C. 87, 408.
2. Union of India & Others v. Bonnerjea & Another (1995) 6 SCC 765.
6. The fact remains that in spite of the best efforts of Judges, the judiciary has not been able to provide speedy justice. The reasons are manifold. To name a few:-
i) Things have changed in the recent past, particularly in the last 20 years. There has been a great upsurge in crime and criminal litigations, and equally in the number of civil disputes. So to say, there is unmanageable docket explosion in every court.
ii) To meet this challenge, there has to be a large increase in the number of judges, courts, court staff and other infrastructure. But no such increase has been made. Even in the existing courts, the working conditions in most of them are unsatisfactory. The courts have insufficient staff and inadequate infrastructure. They are provided with old typewriters. They do not have enough stationery for their day-to-day work.
iii) They do not have financial independence. Their finance is under the Executive control. They are not even provided with enough contingency funds to meet the requirements of the day-to-day goings.
iv) In every Bar, the new members are added each year. But either in the Bar room or in the Court Halls, there are any additional facilities. Even the Court Halls are not properly furnished. Most of the advocates who are required to attend courts have to stand all the while waiting for their cases to be called.
v) The law books are the tools of the trade for judges. But the judges are not provided with the up-to-date statutes or law books and commentaries either in their own Court Library or in their individual domestic library. The judges are generally under the mercy of lawyers to provide copies of the decisions or enactments relied during the course of the argument. Some judges write judgments in their own hands for want of stenographers.
vi) The judges are not given proper training either at the induction level or periodical refresher courses to update their knowledge and technique of fast track disposal.
vii) The judges apply the same old procedure and the same old Court Management and Case Management.
viii) There is no Information Technology for Court Management in most of the States. There is no Data Base application for cases. No Scanner or Electronic Filing and for Retrieving Documents etc., the means which are commonly used in all Industrial houses and business establishments.
7. Commenting on the similar conditions in the British justice system which existed at one time, of course long long ago, Lord Devlin then said:
"If our business methods were as antiquated as our legal system, we would have become a bankrupt nation long back."
8. These deficiencies are indeed, insidious threat to the independence of the judicial system, though not to the independence of individual judges who operate the system. The independence of the legal system does not depend entirely on the independence of each individual judge. It also depends upon the manner in which the system is operated, and how judges are provided for. Some of these aspects have been dealt with by the Supreme Court in the All India Judges Association Case3. The Court observed:
" . . . . Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the executive has to be abandoned." . . . . "The judges are not employees and judicial service is not service in the sense of employment. As members of the judiciary, they exercise
the sovereign judicial power of the State. They are holders of public offices in the same way as the Members of the Council of Ministers and the Members of the Legislature."
" . . . . . The service conditions of the judges should not be linked to those of the executives and the service conditions of the judges have to be revised to meet the special needs of the judicial service." . . . . . "The Judicial officers throughout the country perform the work of the same nature and, therefore, their service conditions have to be uniform and it should be examined by a separate Commission and the State should not make a grievance if their service conditions are improved." . . . . . "The exertions involved in the duties of the Judge cannot be compared with the duties of other services and the judicial service by its very nature stands on a different footing and should be treated as such."
9. The decision of the Supreme Court
10. The involvement of an independent Commission is likely to promote the independence of judiciary. It provides a forum in which the members of the
judiciary can fearlessly raise concerns about their conditions of service which they could not have raised at the bargaining table with the Executive or the Legislature.
11. Moreover, the Commission like this serves as an institutional sieve which protects the Courts from political interference through economic manipulation, a danger which inheres in salary negotiation..
12. The Judiciarys reliance upon Government for periodic increases in remuneration entails an obvious potential for impairment of judicial independence. As the Chief Justice of South Australia has noted5:
"Those who control the purse strings will always have some capacity to influence the actions of those who are dependent upon the contents of the purse . . . . . . There can be no doubt that executive government control over judicial salary fixation is always at least an incipient threat to judicial independence."
As a Canadian Judge6 put it more bluntly:
"When you are reduced to begging for a decent salary, how can you be truly independent."
13. This Commission, by survey of the subordinate courts, has found that there is a large scale dissatisfaction in the Subordinate Judiciary all over the country.
14. The major cause for this dissatisfaction appears to be the burgeoning judicial work-load and the financial pressure due to inadequate compensation.
15. We want to impress upon the Government that the debilitating effects of inadequate remuneration of the judges in the long run can only lead to worsening
5. See: Report of the Remuneration Tribunal of Common Wealth of Australia, 1997, p.33.
6. Judge Francois-Beaudoil, President of the Conference des juges due Qucboc.
morale and eroding commitment to service. It is the universal experience that men and women who feel that they are underpaid for the demanding work they do, would generally suffer from low morale and declining sense of commitment to service. This is, indeed, happening in many State Judiciaries. The losers are, however, not the judges in the ultimate analysis, rather it is the public. The public have to go before courts for critical decisions in cases affecting law and order, cases that affect their civil and legal rights, cases involving their lives and liberties and cases relating to their welfare and their childrens welfare, etc.. We can ill-afford to entrust such cases in the hands of dissatisfied judges.
16. It is, indeed, appropriate to recall the warning given by Senator Henry Clay during the debate in the House of Representatives7:
"The labourer is worthy of his hire; and if you do not give him the wages of honesty, it is to be apprehended the wages of corruption may, in process of time, come to be sought."
17. Therefore, improving the service conditions of our judges is not in the interest of judges alone, but in the interest of sound and efficient administration of justice as well. That would ultimately benefit all of us and more so the Government, because the Government is a litigant in 60 per cent of cases that come before courts.
18. There is yet another aspect. The vast moral authority of courts in our system is bound up in the public mind with the visible adjunct of those who dispense justice, including certain way of living and the manner in which they commute to courts. This concern was illustrated well by a 1949 memorandum from three English Country Court Judges, complaining about low salary8:
7. The Annals of Congress report the following debate in the House of Representatives in March 1816, between Henry Clay (Whig Party, 1815-1821) and John C. Calhoun (War Democrat, 1811-1817).
8. Independence of Judiciary: The view from the Lord Chancellors office, By Robert Stevense, p. 121.
"If judges have to live in mean houses, wear cheap clothes . . . . not only would their work suffer by reason of their mental discomfort but the present high estimation in which the judiciary is everywhere held would also suffer. If the members of the judiciary are not regarded with respect, their impartiality will, such is human nature, come to be doubted. . . . ."
19. In urging to boost judicial salaries, we by no means are suggesting that salaries should be set at a level of the income of the most prosperous and successful advocates. We are only trying to set the salary at a level that allows aspirants with modest backgrounds, and with family responsibilities, to accept the challenge of judicial service and a level that does not progressively penalise those dedicated individuals who choose to serve. We are trying to be fair to those who are making sacrifices in terms of loneliness and general withdrawal from community affairs to serve the public.
20. There is no better way to sum up our aim and object than to put it in the wise words of Churchill9:
"Our aim is not to make our judges wealthy men, but to satisfy their needs to maintain a modest but dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge."
21. These are the principal reasons with which we have suggested certain emoluments to judicial officers. After all, we do not spend much on our judiciary. The expenditure on judiciary in our country in terms of GNP is relatively low. It is not more than 0.2 per cent. In Korea, it is more than 0.2 per cent; in Singapore,
9. Ibid 4, p. 127.
it is 1.2 per cent; in U.K. it is 4.3 per cent; and in U.S.A. it is 1.4 per cent.10 Unlike in the 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. Therefore, any increase in the salary structure of the Judicial Officers cannot be considered as a burden to the State.
22. That is one aspect. The other aspect relates to the public criticism regarding the functioning of the judiciary. The public criticism includes among others, the delay in disposal of cases; unsatisfactory judgments and creeping corruption in some quarters. The judiciary cannot afford to be indifferent to these criticisms. The costs of providing justice is like other calls on the public revenues. All persons and departments who utilise the public revenue are accountable to the public. The judges cannot be an exception to this recognised principle. They are equally accountable for their acts and omissions both on the Bench and off the Bench. It is, therefore, necessary for judges, individually and collectively, to ensure that no such criticism is levelled against them or against the system.
23. It is needless to state that the High Court has a greater responsibility in the proper functioning of the subordinate courts. The High Court which has absolute control over the members of the Subordinate Judiciary must watch the watchmen to ensure that the public confidence in the judiciary is not diminished. "Misbehaviour by any judge, whether it takes place on the Bench or off the Bench, undermines public confidence in the administration of justice and also damages public respect for the law of the land, if nothing is seen to be done about it,
the damage goes unrepaired"11 . Therefore, the High Court must have periodical and meaningful inspections over the subordinate courts. Even surprise inspections may be required. The Vigilance Cell of the High Court manned by competent judicial officers may be given greater power to enquire and investigate the complaints against the Judicial Officers.
24. The review of all the Judicial Officers at the age of 50, 55 and 60 years for compulsory retirement by the procedure prescribed by the respective Service Rules should be undertaken regularly. There should be continuing Committee of Senior Judges of the High Court headed by the Chief Justice for this purpose of review.
25. The High Court, if we may say so, should be ruthless in taking actions against the indolent and undesirable elements.
26. We trust and hope that this Report awakens the concerned to the needs of the whole process of justice delivery system and inspires Judicial Officers to rededicate themselves to respond positively to meet the challenges of the new millennium.
Justice K. Jagannatha Shetty
Former Judge, Supreme Court of India
Justice P.K. Bahri(Rtd.) Justice A.B. Murgod (Rtd.)Judge,
Delhi High Court Judge, Karnataka High Court
11. Jacksons Machinery of Justice by J.R. Spencer: 8th Ed., p. 369-370.