16. THE ADMINISTRATION OF JUSTICE IN THE STATES SHOULD BE JOINT RESPONSIBILITY OF THE CENTRE AND THE STATES
16.1 Administration of justice, constitution and organisation of all courts, except the Supreme Court and High Courts, was originally included in the State List under the Seventh Schedule to the Constitution. But, by the Constitution (Forty Second Amendment) Act, 1976, it has been brought to the Concurrent List. Entry 11A in the Concurrent List reads :
"11A. Administration of justice; Constitution and Organisation of all Courts, except the Supreme Court and High Courts."
16.2 Let us turn to the Constitutional provisions relating to Subordinate Courts :
Chapter VI Part VI of the Constitution provides for Subordinate Courts. The relevant Articles may be read :
"233. Appointment of district judges - (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
"(2) A person
not already in the service of the
"234. Recruitment of persons other than district judges to the judicial service - Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
"235. Control over subordinate courts - The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
"236. Interpretation - In this Chapter -
(a) the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;
(b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
"237. Application of the provisions of this Chapter to certain class or classes of magistrates - The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification."
16.3 It will be seen from the aforesaid provisions of the Constitution that the State Government has no control over the judges of District Courts and Courts subordinate thereto. It has no power either in their selection, appointments, posting, promotion, transfer, grant of leave or any one of their service conditions except the appointment is made in the name of the Governor in consultation with the High Court.
16.4 In sum, the Government has neither the power to interfere nor interdict the matters pertaining to appointment and service conditions of the Judicial Officers. The advice of the High Court in all such matters is binding on the Government. The Government, however, is liable to meet all the expenditure of the Subordinate Judiciary, including the infrastructure of Courts, quarters for Judicial Officers and their emoluments.
16.5 Similar is the position with regard to staff of the Courts. The Public Service Commission or the State Level Recruitment Committee selects them and High Court / District Judges would post them in different Courts. Their service conditions are regulated with the consultation of the High Courts.
16.6 Every State Government is pleading inability to meet the increasing financial burden of the judicial administration. Even the additional courts sought by the High Court are not sanctioned. The Courts in Moffusil places are located in dilapidated buildings, with no adequate furniture either for Judges or for lawyers. The old ricketty furniture, is a sight to see in the Moffusil Courts. Such Courts, instead of awe inspiring to the litigant public, have become pathetic sight to see.
16.7 The Central Government recently has included the infrastructure of Courts as "planned item" to enable them to provide half of the expenditure required for the purpose and the States sharing the other half of the expenditure.
16.8 We thought that this partnership between the Centre and the States has improved the much needed infrastructure of Courts and Quarters for Judicial Officers. But, we have been informed that, it is not so.
16.9 In order to ascertain the actual state of affairs of the conditions of Courts in all States, we invited the views of High Courts and State Governments by formulating the following Questions in our general Questionnaire :
61. Are the Courts at Tehsil/District Level are properly maintained and adequately furnished? Please narrate the deficiency if any and suggest remedies.
61.2 Recently, the infrastructure of Courts has been made a planned item. To what extent, has this improved the situation?
16.10 The question-wise replies received from the respondents are briefly summarised herein below :
16.10.1 ANDHRA PRADESH HIGH COURT :
61. By and large yes. Repairs are being
carried out by R&B Department as and when requisitioned by the Unit Heads.
The High Court has also been taking up with the Chief Engineer (Building),
The reports from Districts reveal that the response from R&B officials for carrying out maintenance work is not prompt.
61.2 Construction of Court Buildings and Residential Quarters for Judicial Officers has been treated as a Centrally sponsored Scheme from the year 1993-94 onwards and the expenditure on the scheme is to be borne by the Central Government and the State Government on 50:50 basis. This measure has substantially helped in building up new Court complexes, residential quarters.
16.10.2 GAUHATI HIGH COURT :
61. The Courts at the Munsiff/District level are not properly maintained. they are not properly furnished. Lack of maintenance of Courts is due to inadequate funds with the P.W.D. to maintain the Courts.
61.2 Although infrastructure of the Courts has been made a planned item in the Budget, the amount received by the State Government for the infrastructure of the Courts is not made available by the State Government promptly. As a result, any development in the infrastructure has to await till funds are received from the State Government.
61. Not at all. Furniture are not provided at most of the places. Water supply position is not proper.
61.2 To no appreciable and perceptible extent.
61. Majority of the Courts in
Similar is the situation in Patiala House which was a residential building and it was converted into courts. Most of the court rooms are like improvised court room of Tis Hazari. They are very small, and dingy and without proper light and air.
Some furniture of course has been supplied to the courts and chambers of the judicial officers but it is not befitting to their status and it is far short of their need.
Above all over one lakh of litigants, lawyers
and other public visit Tis Hazari Courts every day. Tis
Recently under the orders of Hon'ble Supreme Court some more rooms which were in occupation of civil adminsitrative offices of the Government in Tis Hazari building were given but they have not solved the problem of shortage of court rooms etc., at all.
61.2 As far as
16.10.5 HIGH COURT OF
61. The Courts at district level as well as City level are not properly maintained nor adequately furnished. The Division Bench of Gujarat High Court had to pass orders directing the State Government to immediately provide necessary funds for the furniture, stationery, maintenance of the building etc. Even after directions of Court, no satisfactory steps have been taken by the Government to maintain court buildings or to furnish them adequately. The Government is always reluctant to part with money for the maintenance of the building, furniture, stationery etc., of the Courts. Many of the Courts do not have even the place for dias for the Presiding Officers.
61.2 Though infrastructure of the Court has been made a planned item, it has not worked satisfactorily. Nor has it improved the situation at all, though the Central Government is required to bear half of the costs of the Court Building. In fact, the State Government is not prepared to provide other half of the costs and this has resulted into stagnation.
16.10.6 HIGH COURT OF HIMACHAL PRADESH :
61. The Courts at District/Tehsil level are properly maintained and adequately furnished except the Courts at Divisional Headquarter at Mandi, where the Courts are housed in a very old building, which has virtually out-lived its life. The Court of Sub Judge at Jawali is housed in a rented private building. The Court of Sub Judge at Anni is housed in a Court room spared by the Revenue Department and there is no proper accommodation for the office. A few other Courts are also housed in old buildings rendered unworthy of being used as Court/Office rooms. However, the process for construction of new Court buildings at such places has been initiated and the cases are on different stages. In the near future appropriate and adequate accommodation will be available to all the existing Courts.
The State Government shall provide all the necessary infrastructure for commencing the functioning of the Courts in any place and also provide all facilities necessary for the existing Courts to function properly.
61.2 Though in the recent past, visible progress has been made in providing infrastructure of Courts, however, during the last year for want of adequate funds, virtually no headway could be made for advancing the process of providing infrastructure of Courts at various places including even such places where the construction was near completion. Ignoring this exception, making of infrastructure of Courts a planned item has definitely led to improve the situation.
16.10.7 HIGH COURT OF JAMMU & KASHMIR :
61. The Courts are by and large furnished with meagre funds available with the High Court. However, these Courts are not properly maintained and adequately furnished by the State Government.
61.2 In the State of Jammu & Kashmir, it is not a planned item. As the Scheme is not being implemented in its true spirit and funds are not channelised to provide infrastructural facility for Courts, therefore, no improvement can be noticed in the situation.
16.10.8 HIGH COURT OF KARNATAKA :
61. The Courts at Taluk/District are not adequately furnished and the scale of furniture fixed for the Courts is inadequate and a proposal has been made for enhancement of furniture to the Courts.
61.2 Inclusion of infrastructure of Courts in the planned item is bound to improve the situation. However, desired result has not been achieved as sufficient funds are not provided in Karnataka. A proposal has been made for providing adequate infrastructure of Courts by sanctioning Rupees One Crore and the said proposal is pending before the Government.
16.10.9 KERALA HIGH COURT :
61. The Court buildings are not properly maintained nor adequately furnished. Most of such Court buildings are very old. Proposal for construction of buildings wherever found necessary is pending. Wherever land is readily available, administrative sanction has been recommended. Enough funds are not available and unless funds to the tune of a few hundred crores are immediately available, the proposals cannot be implemented. This is a major problem which has to be dealt with seriously.
The Courts are not adequately furnished. Old ricketty chairs are a common sight in all the courts. Provision for infrastructural facilities to the courts should be made a plan item so as to make available to the courts a suitable and conducive working atmosphere.
61.2 Buildings are being constructed for Courts and quarters under the plan 50 per cent centrally sponsored scheme, subject to availability of land and allotment of funds in a phased manner. Because of financial constraints, the desired effect has not been achieved.
16.10.10 HIGH COURT OF MADHYA PRADESH :
61. No, because of lack of adequate funds.
61.2 Yet to be implemented in our State.
61. No. In most of the Districts in
61.2 The effects are yet to be felt.
16.10.12 ORISSA HIGH COURT :
61. Courts at Tahasil and District level are not properly maintained and adequately furnished. This is due to want of sufficient fund provided by the State Government.
61.2 After the infrastructure of courts has been made a planned item, now court buildings and residential quarters are constructed.
16.10.13 PUNJAB & HARYANA HIGH COURT :
61. The Courts at Tahsil/District level are not at all properly maintained. Neither there are proper court rooms nor sufficient furniture have been provided for court staff, lawyers and litigants nor there is any proper provision for toilets in court complexes. Most of the judges also do not have proper chambers. Generator sets have also not been installed in order to meet out the sudden failure of electricity.
61.2 Although the infrastructure of courts has been made a planned item, yet the results are far from satisfactory and it needs more attention to improve the situation.
16.10.14 RAJASTHAN HIGH COURT :
61. All the Courts at Tahsil and in the District are not properly maintained and adequately furnished. The Courts are not provided with adequate budget for furniture to be provided in chamber, court-room and staff-room. At many places sufficient space for chamber, court-room and staff-room is not provided.
In some of the Courts even under-trials are not provided proper place in the court premises. At so many places, litigant-sheds are not constructed by the State Government.
61.2 After making infrastructure of courts as a planned-item the situation has improved to a little extent and gradual process of improvement is going on in a phased plan which will take time.
16.10.15 HIGH COURT OF
61. At present in this State new buildings have been constructed or are under construction. Central financial assistance properly utilised.
61.2 In this State the process is on. The situation is improving.
16.10.16 HIGH COURT OF
61. With the available Government funds, Courts are maintained but still more has to be done. Enough funds have to be allocated considering Judiciary as one of the wings of State.
61.2 As the infrastructure of courts has been made a planned item, things have improved in getting funds from the Government.
61. At Tehsil/District level, efforts are made to maintain and furnish the courts properly with whatever sum is made available to the court by the Government but for regular maintenance of residential and non-residential buildings it is required that P.W.D. or some other Government agency should undertake this work under the order of the Government.
61.2 After the infrastructure of Courts, has been made a planned item an overall improvement is being felt gradually.
61. The buildings neither properly maintained nor adequately furnished. Most of the buildings are worn out and some of them leak waters at the time of Rainy Season, as for example, in Alipore Criminal Court buildings. Court rooms are insufficient and stuffy. There is very scanty seating arrangement not only for the litigants but also for the lawyers in some of the Courts. Furniture are not at all sufficient. Some of the buildings are so much dilapidated as those are unfit for using as Court rooms although courts have to run therein. There have been incidents of falling down of plasters of the ceiling missing the head of Judge.
Adequate fund should be provided for remodelling the buildings by phased programme considering the urgency.
61.2 Some programmes have been taken up towards improvements of the situation to provide better infrastructure to the Courts in respect of the court building, residential quarters for the matter remained stalled for sizeable periods of time due to want of fund.
16.11 From the comments received from the High Courts, it will be clear that Court buildings, almost everywhere, are in a bad shape. They are poorly maintained with ricketty furniture. Even after the infrastructure of Courts has been made a planned item, things have not substantially improved, barring in one or two States.
16.12 It is the uniform opinion of most of the High Courts that the State Government is always reluctant to part with money for the maintenance of the buildings, providing furniture, stationery etc., for the Courts and for construction of new buildings.
16.13 We, however, take it that it may not be deliberate design of the State Governments, but evidently due to the financial crunch.
16.14 Let us turn to the views of the State Governments.
THE STATE GOVERNMENTS :
16.15 All the State Governments, save Kerala and Maharashtra Governments, have reported that there is no deficiency in the infrastructure of Courts.
16.16 It seems to us that they appear to be blissfully ignorant of the pathetic condition of the Court buildings with miserable furniture and fixtures.
16.17 The Kerala Government and Maharashtra Government, however, are frank enough to admit that the funds crunch is the greatest problem to improve the infrastructure of Courts and Quarters for Judicial Officers.
16.18 We are of opinion, if things are allowed to continue in this manner, it is neither good for the judiciary nor for the litigant public. A lot of new Courts are required to be established by increasing the Judge strength in all cadres to clear the arrears and to meet the ever-increasing inflow of cases.
16.19 What then is the remedy?
16.20 There is no point in whipping the States alone.
16.21 We have adopted one set of Courts both
for the States and Centre, unlike in the
16.22 In the
16.23 But our Courts are concerned with State Laws as well as Central Laws.
16.24 There are quite a large number of Central enactments, which we have set out in the list appended hereto as Annexure. It runs into a long list of about 340. The major Acts like Procedural Codes, Indian Evidence Act and Indian Penal Code may be common both to the States and the Centre. Some of the Acts may be obsolete, but bulk of the Central Laws remain live. The additions to that list are made every year by the Parliament.
16.25 This being the position, we fail to see why the State Governments alone be burdened with the financial liability of the Subordinate Courts.
16.26 Indeed, this question was repeatedly presented before us during the course of hearing. The representatives of the following State Governments have pleaded with us for recommending that the Centre should equally share expenditure on Subordinate Courts :
(1) Sri Manish
Gupta, IAS, Chief Secretary, Government of
(2) Sri K. Mohan Chandran, IAS, Principal Secretary, Home Department, Government of Kerala.
(3) Sri Sudhir Sharma, IAS, Principal Secretary, Department of Finance, Government of Tripura.
(4) Sri K. Manoj Kumar, Joint Secretary, Government of Tripura.
(5) Sri Sudhir
Kumar, Secretary, Appointments, Government of Uttar Pradesh,
(6) Sri Shiv Prakash,
Joint Secretary, Department of Finance, Government of Uttar Pradesh,
(7) Sri M.R. Hegde,
Secretary, Department of Law, Government of Karnataka,
(8) Sri M.L. Sharma, Additional Secretary (Home), Government of Himachal Pradesh, Shimla.
(9) Sri K. Pradeep
Chandra, IAS, Secretary (Finance), Government of Andhra Pradesh,
16.27 We find considerable force in their submissions. Efficient justice delivery system is sine qua non for maintenance of law and order. Speedy justice is one of the guaranteed fundamental rights to citizens. It must, therefore, be the joint responsibility of the Central and the State Governments to ensure that the judicial administration does not suffer from any handicaps.
16.28 The Judiciary is not a heavy burden either on the State or the Centre. Unlike in other Departments, more than half of the amount which is spent on Indian Judiciary is raised from the Judiciary itself by means of Court Fees, Stamp duty and miscellaneous matters.
16.29 That apart, as we have highlighted in
the "Preface" to our Report, the expenditure on judiciary in our
country in terms of GNP is relatively low. It is not more than 0.2 per cent. In
16.30 Therefore, we trust and hope that the Central Government will not make any grievance on our proposal.
OUR RECOMMENDATIONS :
16.31 For the reasons aforesaid and in the
interest of strengthening and promoting the independence of the justice delivery
system, we recommend as follows :
1) Each State must
prepare a 5-Year Plan, to improve the existing infrastructure of Courts,
construction of new Courts, providing furniture, fixtures, library etc., to all
Courts and for construction of Quarters for all Judicial Officers.
2) The Central
Government must share half of the annual expenditure on Subordinate Courts and
Quarters for Judicial Officers.
3) We have been told
by the representatives of
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