NATIONAL
COMMISSION TO REVIEW THE
WORKING
OF THE CONSTITUTION
A
Consultation
Paper*
on
FINANCIAL AUTONOMY OF THE INDIAN
JUDICIARY
Email:
<ncrwc@nic.in> Fax No. 011-3022082
|
Advisory Panel
on Strengthening of the
institutions of Parliamentary Democracy; (Working of the Legislature,
Executive and Judiciary; their accountability; problems
of Administrative, Social and Economic Cost of Political
Instability; Exploring the possibilities of stability within the discipline
of Parliamentary Democracy)
Member-in-charge
Justice
Shri B.P. Jeevan Reddy Chairperson
Justice
Shri H.R. Khanna Members
q
Shri K. Parasaran q
Dr. Jayaprakash Narayan q
Dr. V. A. Pai Panandikar Justice Shri M. Jagannadha Rao (Special invitee)
Member-Secretary
Dr.
Raghbir Singh |
ACKNOWLEDGEMENT
This Consultation Paper ‘Financial
Autonomy of the Indian Judiciary’ is based on a paper prepared by Justice Shri
M. Jagannadha Rao, Vice-Chairman, Law Commission of India, and former Judge,
Supreme Court of India.
The Commission places on record its
profound appreciation of and gratitude to Justice Shri M. Jagannadha Rao for
his contribution.
CONTENTS
Chapter |
|
Pages |
I. |
Independence of the Judiciary in India - Basic Structure – scope and width |
767 |
II. |
Resolutions of U.N. Sub.Committees and International Jurist
Organisation: A Chronological Review
of recent events. |
768 |
III. |
United States of America |
773 |
IV. |
United Kingdom |
786 |
V. |
Australia |
793 |
VI. |
Canada
|
798 |
VII. |
Other Countries |
800 |
VIII. |
India |
803 |
IX. |
Planning for Courts |
805 |
X. |
Comparative Review of the Position Abroad & in India |
809 |
XI. |
India – Proposals for Constitutional Amendment and/or Legislation |
812 |
|
Questionnaire |
821 |
CHAPTER
I
INDEPENDENCE OF JUDICIARY IN INDIA
BASIC STRUCTURE – SCOPE
AND WIDTH
1.1 Today,
the Judiciary in India is blamed for the huge backlog of cases. It is time that the public is made aware
that during the last 50 years after independence, little attention has been
paid by the Government for improvement of the infrastructure of the
Judiciary. There is a dearth of Courts
and Judges and of buildings both for Courts and Judges and officers and
staff. In several cases even minimum
facilities have not been given. The
reason is that there is no planning and proper budgeting of the Courts’
requirements in consultation with the Judiciary as is done in other
countries. Nor is there a long range
Plan or at least a Five Year Plan. The
result is that most courts are over burdened with cases on the civil and
criminal side. Delay results in a
serious infraction of right to speedy trials, to violation of human rights in
various cases. A stage has reached when
the parties are thinking of taking the law into their hands.
1.2 In the above
scenario, it has become necessary to go into the subject of ‘financial independence’
or ‘financial support’ of the Judiciary in India at some length on a
comparative basis and also to consider the need for adequate provision for the
Judiciary as a ‘Plan’ subject.
1.3 The Commission
shall first refer to certain fundamental concepts. In a number of judgments of the Supreme Court, it has been laid
down that the independence of the Judiciary is part of the basic structure of
our Constitution. In S.P. Gupta
vs. Union of India & Another [1981 Suppl. SCC 87 at p 223],
Bhagwati, J. (as he then was) observed that “The concept of independence of the
judiciary is a noble concept which inspires the constitutional scheme and
constitutes the foundation on which rests the edifice of our democratic
polity.” In the same case, Fazal Ali,
J. stated (p.408) that “it has, however, not been doubted by counsel for any of
the parties that independence of judiciary is doubtless a basic structure
of the Constitution”. Again in Shri
Kumar Padma Prasad vs. Union of India & Others [1992(2) SCC 428 at 446
and 456], Kuldip Singh, J observed that the “Independence of the Judiciary is
the basic feature of the Constitution”.
1.4 The independence
of the Judiciary is not confined to the Judges in the Subordinate Judiciary
but extends to the staff as
well.
1.5 In Union of
India & Others vs. Pratibha Bonnerjea & Another [1995 (6)
SCC 765] the Supreme Court stated “from the scheme of the Constitution it is
obvious that the Constitution-makers were evidently keen to ensure that the
judiciary was independent of the Executive.
The Constitution has tried to insulate the Judiciary from outside
influence both from the Executive and the Legislature. Articles 223 to 237 in Chapter VI in Part VI
of the Constitution dealing with the courts below the State High Court also show
that the Constitution-makers were equally keen to insulate even the subordinate
judiciary. Not only the Judges but
even the staff members are insulated from executive influence as is
evident from Article 229”. It was also
so observed in High Court of Judicature at Bombay vs. Shirishkumar
Rangrao Patil & Another [1997 (6) SCC 339].
1.6 Independence of
the Judiciary deals with the independence of the individual Judges in relation
to their appointment, tenure, payment of salaries and also non-removal except
by process of impeachment. The independence has also other facets including the
‘institutional independence of the Judiciary’.
One of the accepted facets of ‘institutional independence’ is the one
concerning the financial resources and financial freedom or autonomy that is to
be given to the Judiciary. Today, this
concept has been developed and accepted in most of the democracies governed by
the rule of law. The doctrine of
separation of powers has been suitably modified and adjusted to achieve the above
goal of financial freedom of the Judiciary.
The principle of judicial independence is almost universally
accepted. Initially it is necessary to
refer to resolutions of international bodies under the aegis of the UN and to
resolutions passed under the auspices of the International Commission of
Jurists.
RESOLUTIONS OF U.N. SUB-COMMITTEES AND INTERNATIONAL
JURIST ORGANISATIONS: A CHRONOLOGICAL REVIEW OF RECENT EVENTS
2.1 The
International Commission of Jurists enjoys consultative status with the United
Nations Economic and Social Council (UNESCO) and the Council of Europe. (A historical review is also available in
Dr. Shimon Shetreet’s “Independence of the Judiciary, The Contemporary Debate”,
1988, pp.396 etc.)
2.2 The
first International Congress sponsored by the International Commission of
Jurists (ICJ) was held in Africa in 1955 and it projected the dynamic concept
of the ’Rule of Law’. Then came the International Congress of Jurists held in
Delhi in January 1959, in which 185 Jurists from 53 countries participated.
This Congress was the culmination of two years of preparation by the ICJ
Secretariat, ICJ Nation Sections and Working Groups in many countries. The resolution of this Congress is known as
the ‘Declaration of Delhi’. The Congress constituted four committees on (i) the
Legislature and the Rule of Law; (ii) the Executive and the Rule of Law; (iii)
the Judiciary and the Legal Profession under the Rule of Law; (iv) Criminal
process and the Rule of Law. The fourth of the Committees stressed in Clause X
on the “access to law for both rich and poor”. Thereafter, the African
Conference on the Rule of Law took place at Lagos in 1961 where 194 Jurists
from 23 African and Non-African nations met. This Conference while affirming
the Delhi resolution on Rule of Law declared that these principles were of
universal application. Clause 7 of the resolution of Committee III reaffirmed
Clause X of the former Committee of New Delhi relating to the need for “equal
access to law for both rich and poor alike” and provision for legal aid in
civil and criminal matters.
2.3 The next Conference of the International
Congress of Jurists on the Rule of Law was held in Rio de Janeiro in December,
1962. Then came the Conference of Bangkok, held in February 1965.
2.4 Thereafter, the
U.N. Sub Commission, upon a petition by the Centre for Independence of Judges
and Lawyers, Geneva, appointed Dr. L.M. Singhvi of India as Special Rapporteur
to study the matters relating to the Independence and impartiality of the
Judiciary, Jurors, Assessors and of the independence of lawyers and to
formulate his recommendations, by its decision 1980/24. In the same year, the 6th
U.N. Congress on the Prevention of Crime and Treatment of offenders, in its
resolution No. 16, called for priority to be given to “the elaboration of the
guidelines relating to the independence, selection, payment training and
relation of Judges and prosecutors”.
2.5 In his preliminary
report, 1980 (see CIJL Bulletin, Geneva November, 1980) Dr. L.M.Singhvi,
referred to the entire history of the movement for the Indepedence of the
judiciary and said it was necessary to formulate a viable equation between
‘independence’ and ‘accountability’. He said that “the plateau of perils to the
impartiality and independence of Judges, Jurists and Assessors and the
independence of the legal profession should be mopped up carefully and
elaborately to enable us to negotiate the terrain and overcome the hazards by
way of constitutional, legal, institutional, cultural, procedural and
other appropriate safeguards.” Dr. Singhvi submitted his progress reports in
1980, 81 and 82.
2.6 The famous
Syracuse Draft Principles on independence of the Judiciary were formulated by a
Committee of Jurists and the International Commission of Jurists at Syracuse,
Sicily on 25th-29th May, 1981. The participants comprised
distinguished Judges and Jurists from Africa, Asia,. America, Eastern and
Western Europe. Articles l, 24, 25 and 26 of the said principles are of
fundamental significance for all countries. They specially dealt with the need
for collaboration with the Judiciary in the preparation of budget for
the Judiciary so that reasonable provision is made for infrastructural
developments for clearance of backlog of cases and for avoiding undue delay.
The above Articles are worth quoting:
“Preamble
Article
1: The Universal Declaration
of Human Rights (Article 10) and the International Covenant on Civil and
Political Right [Article 14(1)] proclaim that everyone should be entitled to a
fair and public hearing by a competent, independent and impartial
tribunal established by law. An independent judiciary is indispensable
for the implementation of this right”.
Financial Provisions:
Article
24: To ensure its independence the judiciary should be provided with the means
and resources necessary for the proper fulfillment of its judicial
functions.
Article 25: The budget of the judiciary
should be established by the competent authority in collaboration with
the judiciary. The amount allotted should be sufficient to enable each court
to function without an excessive workload.
The judiciary should be able to submit their estimate of their
budgetary requirements to the appropriate authority.
[Note: An inadequate provision in
the budget may entail an excessive workload by reason of an insufficient number
of budgeted posts, or of inadequate assistance, aids and equipment, and
consequently by the cause of unreasonable delays in adjudicating cases, thus
bringing the judiciary into discredit.]
Article 26: Judges should receive, at regular
intervals, remuneration for their services at a rate which is commensurate with
their status, and not diminished during their continuance in office. After retirement they should receive a
pension enabling them to live independently and in accordance with their
status.
[Note: It is essential for
the independence of the judiciary, that salary levels should be such that
judges are not exposed to the temptation to seek other sources of income.
An
exception to the principle of non-reduction of salaries may be made at a time
of economic difficulty if there is a general reduction of the public service
salaries, and members of the judiciary are treated equally.”
2.7 On 17th
– 18th July, 1982, the LAWASIA Human Rights Standing Committee met
in Tokyo, Japan (see CIJL Bulletin No.11, April 1983 p.49) and discussed about
the Independence of the Judiciary in Asian Countries. Among various points in the resolution, it was stated in para 13
that the ‘Committee is aware of instances, in the LAWASIA region where
facilities which are now provided to Judges and to the Court system
are below the minimum acceptable level at which Judges and Courts can
carry out that functions properly’.
While recognising the economic circumstances in which some countries
could be placed, it was resolved:
“a proper system of court and
proper performance of the Judicial function are each essential to the
maintenance of proper values the rule of law, and the attainment of human
rights within a society. The Committee
therefore recommends that the priority of such facility be seen as
having a priority of the highest order in the ordering of each society”.
2.8 The International
Bar Association adopted, at its 19th Biennial Conference held in New
Delhi, October 1982, the recommendations made by Dr. Shimon Shetreet, Professor
of Hebrew University, Jerusalem, Israel, who has done pioneering work in this
field and written two great books ‘Judges on Trial’ and ‘Judicial Independence:
The Contemporary Debate’. His
recommendations concerned the Minimum Standards of Judicial Independence and
these are known as the ‘Delhi Approved Standards’ (Published later in CIJL
Bulletin pNo.11, p.53 and CIJL Bulletin, 23, Jan. 1989, p.18). Para 2 thereof refers to the need for
autonomy of the Judiciary and states that Judicial administration must be
vested jointly in the Judiciary and the Executive and adequate financial
resources must be made available. It
was said:
“2. The Judiciary as a whole should enjoy
autonomy and collective
independence vis-ŕ-vis the Executive.
9:
The Central responsibility for
Judicial administration shall preferably be vested in the Judiciary
or jointly in the Judiciary and the Executive.
10. It is the duty of the State to provide
adequate financial resources to allow for the due administration of justice.
13. Court
services should be adequately financed by the relevant government.
14.Judicial salaries and pensions shall
be adequate and shall be regularly adjusted to account for price-increases independent
of Executive Control.
15.(a) The
position of the Judges, their independence, their security, and their adequate
remuneration shall be secured by law.
(b) Judicial salaries cannot be decreased
during the Judges’ serves’ services except as a coherent point of an overall
public economic measure.”.
2.9 The Universal
Declaration on the Independence of Judges as adopted in the World Conference of
the Justices, Montreal on 5-10 June, 1983 (CIJL Bulletin Vol.12, October 1983
p.27) dealt with independence of International and National Judges. Para 2.09 states “Judges may take
collective action to protect their judicial independence”. It is said in para 2.40, dealing with ‘Court
Administration’ that Court budgets must be prepared in consultation with the
Judiciary and that the Judiciary shall submit its estimates to the concerned
authority. It is said:
“2.40: The main responsibilty for Court
administration shall vest in the Judiciary.
2.41: It shall be a priority of the highest order
for the State to provide adequate resource to allow for the due
administration of Justice, including physical facilities appropriate for the
maintenance of Judicial independence, dignity and efficiency, judicial and
administrative personnel; and operating budgets.
2.42: The budget of the courts shall be prepared by the
Competent Authority in Collaboration with the Judiciary. The Judiciary shall submit their estimate
of the budget requirements to the appropriate authority.”.
2.10 The 7th UN Congress on the
Prevention of Crime and the Treatment of Offenders held at Milan in
August-September 1985 adopted, among others, in para 7 (CIJL Bulletin, No.16,
October 1985 p.53 and CIJL Bulletin No.23, April 1989, p.109) as follows:
“7. It is the duty of each Member State to
provide adequate resources to enable the Judiciary to properly perform
its function”.
2.11 The Lusaka Seminar on the independence of
Judges and Lawyers held in November 1986 (CIJL Bulletin, Vols. 19-20, October,
1987 p.97) said in para 23, 24, 49 stated that the Judiciary must have a
greater say in allocation of funds for the Judiciary. It was stated:
“Resources.
23. The executive shall ensure that the
Courts are adequately supplied with Judicial officers and
supporting staff.
24.: The Courts should, as far as possible,
make use of the modern aids to simplify and accelerate court proceedings, and
government should be ought to provide, as far as possible, adequate funds for
the Judiciary for this purpose.”
Administration of the
Courts.
49.: The Judiciary, being a separate branch of
government, should fall under the sole responsibility of the Chief
Justice. Problems may arise when the
Judicial branch is considered as a department of a Ministry. Conditions should
therefore be created whereby the Judiciary has a greater say in the
allocation of funds for the judiciary.”
2.12 The International Commission of Jurists
held a Conference on the Independence of Judges and Lawyers at Caracus,
Venezuela, January 1989 (CIJL Bulletin, No.23, April 1989 and CIJL Bulletin
25-26, Oct.1990 p.22). It recommended
certain basic principles and also the following procedure for adoption by the
UNESCO (p.121):
“Procedure 5: In
implementing principles 7 and 11 of the Basic Principles, States shall pay
particular attention to the need for adequate resources for the functioning of
the Judicial system, including appointing a sufficient number of Judges in
relation to case-loads, providing the Courts with necessary supporting staff
and equipment, and offering Judges appropriate personal security, remuneration
and emoluments”.
2.13 Dr. L.M. Singhivi, pursuant to the
UNESCO’s proceedings referred to earlier, submitted his final report at the 38th
session of the UN Sub-Commission and referred to his draft declaration on the
Independence and Impartiality of the Judiciary etc. On circulation thereof, comments were submitted to the report and
at its 45th session, the U.N. Sub Commission (Resolution 1989/32)
requested governments to take into account the principles set forth by Dr. Singhivi
in his draft declaration. (CIJL
Bulletin, 25-26, Oct.1990, pp. 38-39) as approved in 1985. Paras 33 and 34 of the declaration deal with
finances and budgets for the Judiciary and reads as follows:
“Para 33: It shall be a priority of the
highest order for the State to provide adequate resources to allow for the due
administration of Justice, including physical facilities appropriate for the
maintenance of Judicial independence, dignity and efficiency; judicial and
administrative personnel; and operating budgets.
Para 34: The budget of the Courts shall be prepared by the
competent authority in collaboration with the Judiciary having regard to the
needs and requirements of Judicial administration.”.
2.14 There has been a Conference at Beijing on
19.8,1995 (6th Conference of Chief Justices of Asia and
Pacific). This Conference issued the
‘Beijing Statement of the Principles of the Independence of the Judiciary in
the LAWASIA region’. In its preamble,
it refers to the Charter of the United Nations, the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights. It refers
to the 6th U.N. Congress on the Prevention of Crime and treatment of
Offenders, the 7th Congress at Milan in Aug-Sept. 1985 where the
Basic Principles on the Independence of the Judiciary’ were adopted, to the
Tokyo Law Asia Conference in July 1982 when the ‘Principles of the Independent
Judiciary in the LAWASIA region (“The Tokyo Principles” were forwarded, to
the 5th Conference of Chief
Justices of Asia and Pacific at Colombo, Sri Lanka in Sept. 1993 wherein it was
decided to modify the Tokyo Principles, and the modified declaration is now
adopted in the Beijing Conference. It
says (Article 2) that an independent
Judiciary is indispensable for the implementation of the human rights referred
to in the UN Declaration of Human Rights (Article 10 and the International
Covenant on Civil and Political Rights (Article 14(11). Article 4 says:
“The maintenance of the
independence of the Judiciary is essential to the attainment of its objectives
and the proper performance of its functions in a free society observing the
Rule of Law. It is essential that such
independence be guaranteed by the State and enshrined in the Constitution or
the law.”.
2.14.1 Adverting to Judicial administration and
budgets, it says:
“Judicial Administration:
Article 35:…………………….
Article 36: The principal responsibility for Courts administration including
appointment, supervision and disciplinary control of administrative personnel
and support staff must vest in the Judiciary, or in a body in which the
Judiciary is represented and has an effective role.
Article 37: The budget of the Courts should be prepared by the
Courts or a competent authority in collaboration with the Judiciary having
regard to the needs of judicial independence and administration. The amount allotted should be sufficient
to enable each court to function without an excessive workload”.
2.14.2 In two other Articles dealing with
relationship with Executive, it is stated:
“Article 41: It is essential that Judges be provided
with the resources necessary to enable them to perform their functions.
Article 42: When economic restraints make it difficult to allocate to
the court system, facilities and resources which judges consider
adequate to enable them to perform their function, the essential maintenance
of the Rule of Law and the protection of human rights nevertheless require
that the needs of the Judiciary and the Court system be accorded a high
level of priority in the allocation of resources.”
2.15 India is a signatory to the U.N. Charter
and the Covenant and Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights, and also a party to several of their
resolutions and to the resolutions of the LAWASIA for Asia and Pacific regions.
There is, therefore, a bounden duty on the part of the Government to conform,
to these resolutions.
CHAPTER III
UNITED STATES OF AMERICA
Part A
Historical Background
3.1 It is necessary to refer
to the historical background and to the efforts of Chief Justice Taft in
1921-22 in laying firm foundation for the judicial independence in policy
making and for the financial support and autonomy of the Federal Court.
3.2 When the need for a
statutory back up on these aspects was initiated, there were several opponents
from among the politicians. Thomas J.
Walsh of Montana described the proposed Judicial Conference as a ‘Junket’ and
as ending in ‘dinners’ and nothing else.
He said:
“…it means absolutely nothing on earth except a junket and a dinner…There
is not any business, so far as I can see which can be transacted…. It involves
an expanse which…has no justification whatsoever.” (see Origin of the Judicial
Conference by David S. Myers) (1971) – 57 Am. Bar Association Journal PP
597-600).”.
Socialist Meyor London of New York argued that ‘an annual conference of
Judges would be an additional burden on the time of the Chief Justice and the
senior circuit Judges’. In view of the
sizeable backlog of cases already in the Federal Courts, he did not favour
imposing an additional burden on their times.
Clarance Fo Lea of California felt that the Conference “could become a
propaganda organization for legislation for its own benefit,” exposing the
members of the Conference to public criticism and discredit. Fritz G. Lanham of Texas felt that the
statistical data proposed to be gathered by the Conference could as well be
gathered from the reports of the Federal Judges to the Chief Justice. John K. Shields of Tennessee likened the
Chief Justice to a Commander-in-Chief and the senior Circuit Judges to General
staff and district Judges to the men in ranks and he felt that the judicial
Conference would encroach into the legislative and executive domains. The Conference would remain a ‘social
function’. Others attacked the
provision which stated that the Attorney General was to report to the Judicial
Conference on matters relating to business of the Courts. In spite of all this, the Bill was passed
finally on September 14, 1922 (ibid, Myers p.597-600).
3.3 As pointed out by Frankfurter and
Landis, the rise of US as a predominantly industrial nation required local
needs to be taken up on the basis of national considerations. (Ibid, Myers, p.597). Types and volume of litigation, character of
issues, duration of trials and speed of disposition had to be known in order to
determine competence or laxity in the judicial administration. Records showed in 1921 that prior to the
World War I, the dockets in US were over crowded. New legislations were adding new rights and new crimes into the
law and were leading to tremendous increase in the cases going to the Courts.
It was in those circumstances that the American Congress passed the law in 1922
which is now in Title 28.
3.4 Taft who became Chief Justice and was
also the President of USA could make
proper assessment and he said that Judges are better suited to make
policy decisions. He said:
“Judicial force ought to be under the executive
direction of somebody, so that the number of Judges needed to meet the arrears
of business at a particular place should be under the control of one who
knows what the need is. ….” (2. Pringle, The Life and Times of William Howard Taft, 993 (1939) quoted by
Myers ibid, p. 598).
3.5 An annual survey of the Courts’ work,
gathering statistics of records of work done and proper coordination among
courts. was necessary. In 1921, the
Attorney General, H. Daugherty appointed a Special Committee of three Federal
Judges and two US attorneys to recommend legislation for judicial reforms. The Committee adopted Chief Justice Taft’s
suggestion that:
“each district Judge be required to
file an annual report with the senior Circuit Court Judge of his Circuit,
relating the conditions of his docket and presenting various statistics as to
the functioning of his Court”.
3.6 Legislation based on the Committee’s
recommendation was “promptly introduced” in Congress and passed. Chief Justice Taft testified before the
Judicial Committee of the Senate as follows:
“…One feature which I was glad to
see…is the idea of giving some executive head to the management of the
judiciary of this country for the purpose of massing against the places where
arrears… (exist), enough judges to reduce arrears and produce normal
condition. That provision is the
assembling of Council of some of the nine senior Circuit Judges…”
3.7 After
the 1922 legislation, for the first time, the entire structure of the federal
judicial department was opened to discussion as new theories of judicial
organization and administration came to be debated.
Part B
3.8 Prof. Shimon Shetreet, in
the final Chapter (Chapter 52 – pages 590-658) of his book (Judicial Independence: The
Contemporary Debate, 1988) while dealing with the subject of ‘Judicial
Independence: New Conceptual Dimensions and Contemporary Challenges’ has
pointed out that until 1939 the Central responsibility for court administration
at the federal level in the United States of America was vested with the
Attorney-General. The Judicial Conference (initially Circuits Conference) was
founded in 1922. In 1939, the responsibility for court administration was
statutorily transferred to the Judiciary by the 28 U.S.C.A.S.605 (P.592), to be
performed as per the policies of the Judicial Conference. In that year the
statute created the “Administrative office of the United States Courts” and the
entire administration of the Federal Courts was transferred from the Department
of Justice to the above ‘Administrative Office of U.S. Courts’. The result was
the creation of a largely centralised federal judicial administrative system
autonomous in the conduct of its administrative and financial matters. Consequently,
budget estimates were not submitted to the Executive but directly to Congress
and budget estimates submitted by the Judiciary were not subject to executive
sanction after this date (603). (See E.C. Friesen, Managing the Courts, 1971.
Indiana policies Ind:) But the State Judiciary, which is not uniform as regards
these matters, did not always have effective administrative control and
certainly had not the budgetary freedom of the federal courts. The problems of
shortage in court-financing led to actions in courts to mandate court-financing
against the (local) government organisation which had often failed to provide
the budget necessary for the State Courts. (See Smith vs. Millen
381. F.2d/ 738 (1963); Judges for the Third Circuit vs. Country of Wayne:
172-nW.2d. 436 (1969).
3.9 Chapter 29 of Dr. Shimon Shetreets’ Book
contains an Article by Prof. Robat B. Mckay & James M. Parkinson as to the position in USA. In regard to State
Courts (i.e. other than Federal) It is said there that in the US (State
Courts), Chief Justice of the Court en banc, is responsible for court
administration at the court level in all American jurisdictions. The Court
Administrator or clerk of Court, prepares the budget of the Court. The budget
is then approved by the Chief Justice of the Court en banc before
submission to the proper authority in the executive and legislative
branches. In municipal courts (City
Courts) and courts of general trial jurisdiction in decentralised state systems
–buildings and facilities are frequently under the management of the executive
branch of government. In the state
systems that are more unified and
centralised, the Court administrator plays a larger role in facilities’
management. Several State Supreme Court and the Supreme Courts of U.S.A. manage
their own facilities and buildings.
3.10 There is, according to the above authors,
no function in the US Courts comparable to what a Minister of Justice does in
other countries. The Court
administrator or the clerk of the Court, is usually responsible for court
statistics at both State and Central levels.
Court budgets are prepared by
the Court administrator and approved in the ordinary procedure. These are judicial systems which exhibit
relatively strong management with only a limited degree of budgetary
unification as in New Jersey. Again as
in Connecticut, a system may have a relatively decentralised administrative
structure although its financial specifications are unified in a single
subject. (360-361).
3.11 In the case of Federal Court budgets
and those of States such as New York, the Court budget is brought directly
to the legislature for approval. Other
States, for example, like Missouri, include Court budgets as a regular part of
the executive budget. In still other
States, the budget is submitted simultaneously to the executive and legislative
branches. The services to Federal court
are financed by the federal government.
The services to State Courts are financed by the respective State and
local governments. The court buildings
are generally the responsibility of the appropriate department of government
but this is not so with the U.S. Supreme Court and several State Supreme
Courts, which are solely responsible for their own administrative personnel and
buildings. (p.363).
3.12 The question of Judicial salaries has been
put before the Courts. On December 15,
1980, the U.S. Supreme Court effectively gave themselves and all other federal
Judges a pay rise of more than 10% in a class-action case, U.S. vs. Will, (1980) 449 U.S.
200, involving the payment of cost-of-living index raise to federal Judges.
(p.364).
3.13 Judges’ salaries in U.S. were covered by a
statutory provision for annual pay adjustment unto 1975 when the Executive
Salary Cost-of-Living Adjustment Act was passed. This law provided that Judges would receive the same percentage
increase accorded to General Schedule Employees. However, the provisions of this Act were rarely implemented
because in subsequent years, Congress passed separate measures cutting off such
raises for themselves and others. A
further limitation was placed on federal Judges in 1981 when Section 140 of
Public Law – 97-92 was enacted, which provided that no salary increase shall be
given to Judges in the absence of separate legislative action. Finally, in 1989, Congress passed the Ethics
Reform Act, which provided a catch-up pay raise approximately 33% over two
years. But freeze in increase started
again 1993.
3.14 In 1990, the Chief Justice of the State of
New York submitted the budget for the Judiciary to the Governor seeking a 4%
increase but instead, but the budget stood reduced by 4%. Consequently 1700 non judicial staff were
discharged and no civil Judge trials were held for 3 months in some counties
while in some others, the court rooms were closed. Judges remained in chambers. So Chief Justice Wachtuer filed a complaint
verified on oath against Governor Cuomol and the legislature, - in the State
Court of first instance claiming that the Judiciary has an inherent right and
power to compel reasonable and necessary funding of court operations. Later the Chief Justice resigned following
some other allegations of misconduct unconnected with his office. (See (1994) 6
Aust.L.J. 14(22) by Justice Miles, State of the Judicature in the Australian
Capital Territory). There were
precedents for both sides. For
instance, the Pennsyluvanian Supreme Court in 1986 ordered Philadelphia to
appropriate more than 1 million for its court of common pleas (Commonwealth
vs. Tate 274 A. 2d.193). On the other
hand, the New York Court of Appeals in 1975 refused to rule that there was a
right to counsel at public expense in matrimonial cases. (In Re Smilcy: 36 NYS 2D.87). That Court said:
“The absence of
appropriate funds and legislation to raise taxes under our State Constitutional
system – is not a judicially fillable gap.”
3.14.1 For other earlier court cases in USA see
Russel R. Wheeler (Judicial Administration)(1977) pp.122-123.
3.14.2 The above thought, although perhaps not the
language, echoes the remarks of Justice Brennan of Australia in (1992) 67. AJAR
1 at 16.
3.15 In 1991, for want of funds eight States
ceased hearing Civil cases so that they could hear criminal cases. In 5 States, public defenders of accused
rejected cases because of insufficient funding of their offices.
See also Beckert vs. Warren. Pa
Carrol vs. Tate : 442 Pa. (1971). These cases are based on the contention of
an inherent power in the courts concerned to compel budget appropriations for
the reasonable needs of the Judiciary in carrying out constitutionally mandated
duties.
3.16 Recently in 1998, a group of senior Judges
who said that their salaries have not kept pace with inflation has sued the
Federal Government (Washington Post, 8th January, 1998). They are seeking to restore cost-of-living
raises denied to federal Judges from 1993 to 1997. The class action was filed in December 1997 in U.S. District
Court, Washington, where Judge John Garrat Penn would have to decide the case
relating to himself and his peers. The
Judges contended that the non-payment on the basis of cost-of-living adjustment
violated the 1989 Ethics Reform Act and
the Constitution’ guarantee that Judicial salaries will not decrease while in
office. The Ethics law includes a
provision for executive level federal employees – including Judges – to
receive cost-of-living increase beginning in 1991.
3.17 In 1995, the Judicial Conference’s
Judicial Branch Committee responded quickly to the Senates’ budget plan to
freeze pay increase for Judges until the year 2002. The Committee notified the dire effect of a 7-year freeze on
federal Judges’ salaries. In 1997, the
Judicial Conference has resolved for a catch-up pay adjustment of 9.6% for the
four last years, a delinkage of Judges’ pay from the Executive Schedule and
repeal of Section 140 of P.L.-97-92. In
the 104th Congress, legislation was introduced to repeal Section 140
and delink the pay of Judges but the Bill could not be passed.
3.18 Chief Justice Willian H. Rehnquist
recently stated in the 1996 Year-end-Report on the Federal Judiciary on their
salary problems:
“Once again this year –
in my eleventh annual report on the state of the Judiciary – I am struck by the
paradox of Judicial independence in the United States: We have as independent a Judiciary as I know
of in any democracy, and yet the Judges are very much dependent on the
Legislature and Executive branches for the enactment of laws to enable the
Judges to do a better job of administering Justice”.
3.19 In Article published in (1997) Electronic
Journal, p.3 by Justice Breyer of the U.S. Supreme Court, tilted ‘Judicial
independence in the USA”, he states as follows: There are three primary
institutional pillars on which the U.S. Judicial administration is based. The first is the Judicial
Conference of the States – which was created in 1922. It comprises the Chief Justice of the
Supreme Court, 13 Chief Judges of the Circuits, 12 Dt. Court Judges and the
Chief Judge of the Court of International Trade. The Judicial Conference is the national policy-making body
for the Judiciary, and supervises the Adminstrative office of the U.S. Courts
(which was established in 1939). The Second
one is the Administrative Office of the U.S. Courts. It addresses to the needs for centralisation
of Judicial administration and contains a body of professional administrators
subject to the direct control of the Judicial Conference, which administers the
federal court budget, personnel management, procurement and other house
keeping and support functions. The third
one is Circuit Judicial Councils which have the primary responsibility
in the judiciary’s disciplinary system.
3.20 Another independent, but centralized
institution of the Judiciary is the Federal Judicial Centre, created by
Congress in 1967. It is the Judicial Conference of the U.S. and headed by the
Chief Justice and is composed of six
Judges selected by the Judicial Conference and the Director of the
Administrative Office. It has the responsibility of conducting research into
Judicial administration and issues relevant to the administrative of Justice,
as well as to propose and prepare educational programme for federal
Judges.” The Judicial Conference
of the U.S. & the Administrative Office
3.21 The Conference of Senior Circuit Judges
was created by Congress in 1922 “to serve as the principal policy making
body concerned with the Administration of the United States Courts. In 1948,
Congress enacted Section 331 of title 28, US States Code, changing the name to
the ‘Judicial Conference of the United States’. It supervises the
Administrative Office under Section 604 of title 28.
3.22.1 As stated
earlier, the Administrative Office was created in 1939 by Congress. The
Judicial Conference consists of 27 Judges, drawn from all Courts – viz. the
Supreme Court, the Chief Judges of Circuit Court of Appeal, District Judges
from each regional Circuit Courts, as stated above. There are none from the
legislative or executive wings.
3.22.2 The Chief Justice of US is required to
submit to Congress an annual report of the proceedings of the Judicial
Conference and its recommendations (Section 331 of title 28).
3.22.3 The Conference
meets twice in a year and goes into the disposal of cases, the requirements of
the Judiciary, and the impact of new legislation on Courts. The Conference estimates the
budgetary requirement and makes recommendations to the Congress. Members of the
Conference in the Committees including the Chief Justice can even address
Congress in regard to the said requirements.
The Conference also takes into account the additional needs of the
Judiciary on account of cases that may arise due to fresh legislation. The Conference also supervises and issues
directions to the Administrative office of the U.S. Court.
3.22.4 Among the important Committees of the
Judicial Conference are the following (see booklet of Judicial Conference
Published in USA P 1-10)
(i)
Committee on Budget.
(ii)
Committee on Court Administration and court Management.
(iii)
Committee on Information and Technology.
(iv)
Committee on Security, Space and Accommodation.
(v)
Committee on Long Range Planning.
(vi)
Committee on Financial Disclosure.
(vii)
Committee on international Judicial relations.
(viii)
Committee on the Judicial Branch.
(ix)
Committee on Judicial Resources.
3.22.5 The Committee on
Judicial Resources concerns all issues of human resource administration,
including the need for additional Article III Judges and support staff and
oversees the organization of statistical systems and the development of
methodologies for human resource needs, assessment and allocation. The Committee meets twice in a year, usually
2 months before the biennial meetings of the Judicial Conference.
3.23 In the booklet prepared by L. Ralph
Mecham, Director of the Administrative Office regarding the Judiciary budget
(p.15-16), it is stated as follows:
“One the key functions
of the Judicial Conference and of the Administrative Office relates to the
Judiciary’s budget. The Judicial
Conference and its Executive Committee, with specific financial
responsibilities, all have roles in developing budget-formulation and
budget-execution policy for the Federal Judiciary. The Administrative Office, working closely with the Courts,
develops the budget estimates for consideration by the Judicial Conference and
its Committees. Once the Conference
approves the budget request for the Judiciary, the Administrative Office
prepares the necessary support materials for Congress and carries out entire
liaison with the appropriations Committees’ staff.
In developing the budget
request, a variety of statistical and analytical techniques are used, including
Caseload forecasts and sophisticated work measurement formulas,
in conjunction with year-round program analysis and review of actual
expenditures. The entire
budget-formulation process takes 18 months from the time estimates are
developed until the appropriations bill for the Judiciary is enacted.
Once an appropriation is
enacted by Congress, the Executive Committee approves a spending plan
for the federal Judiciary. The
Administrative office implements the Plan by allocating money to program –
management division, which collects the funds to the Courts. Under budget decentralization, each court –
unit controls its own budget and can shift resources among activities
to meet its needs. The agency provides
technical assistance and guidance in the obligation and disbursement of
appropriated funds in accordance with existing statutes and Judicial Conference
guidelines, and maintains the Judiciary’s official financial system and
accounting records.
(p.18) Over the last several years,
Administrative Office program manager’s have addressed some of the most
pressing needs the courts have, for automation leadership, space and
facilities planning support, administrative improvements, and board-ranged
trouble-shooting support for Judges and other Court-Officials. The agency has
improved its internal management systems and reorganized the staff to operate
more effectively and efficiently to meet the ever-changing demands of the
federal Judiciary.”.
3.23.1 Decentralisation
is done as follows: (p.18-19)
“Rather than making
decision in Washington about what a Court needs, those decisions are better
made by the Courts themselves, with the Administrative Office providing needed
guidance assistance and oversight.
In particular, budget
decentralization has provided court managers with more flexibility to apply
resources and meet local needs more expeditiously. The decentralisation of personnel management and classification of
authorities will be another major step in granting each court flexibility over
the composition of its work place.”
3.23.2 Towards managing
future changes, the Administrative office says (p.19).
“As the Courts have
grown in size and the workload has become more complex, the responsibilities of
Judicial administration have increased significantly. Also, the structure and activities of the Judicial Conference and
its Committees have expanded in recent years.
In support of these changes, the agency has been examining the demands
likely to confront the federal courts in the future.
Many tasks confront the
Administrative office: helping the Courts function with limited resources;
working with Congress to obtain its resources and legislative changes the
Judiciary needs;…supporting Judges and court staff in carrying out their
responsibilities effectively; and reengineering operations to meet workload
demands and take advantage of the most efficient use of emerging technologies.
A primary initiative for
the Administrative office is to identify ways to reduce cost, improve service,
and implement solutions that will enable the agency’s staff to do the best job
it can, with scarce resources.”.
(More information can be
obtained from office of Legislative and Public Affairs – Phone 202 – 272 –
1120.)
3.24 In a paper by Hon’ble Lloyd D. George
(Chief U.S. Dt. Judge, Nevada), he states that in the US these ‘administrative structures
and procedures … contribute to the independence of the Judiciary in
the following aspects:
(1)
The Judicial Conference of the US controls judicial administration
generally.
(2)
Judges (through the Judicial Conference and its budget
Committees), prepare and submit the Judicial branch budget to the Congress.
(3)
The Judicial Conference, (through its various Committees),
generally controls the preparation of rules of procedure for the Courts.
(4)
Judges (through the Chief Justice and a Committee of the Judicial
Conference exercising over sight the Administrative office) control the
day-to-day operations of the Court-pay roll, personnel, equipment and supplies.
(5)
Judges themselves deal with disciplinary procedures.
(6)
Judges control judicial education. The education of court personnel is done by Judges
(7)
Judges participate in the management of Court space and facilities
(through the Judicial Conference and the Administrative Office).
He says that “Members of the Judicial
Conference and Committees-members, including at times the Chief Justice, may
be invited by Congress to speak at congressional hearings regarding the
proposed legislation. Congress may thereby
consider the impact of the legislation on the Judiciary” (i.e. increase of the
workload). He says that in the US, on
account of the mechanism of the U.S. Judicial Conference and the Administrative
Office.
“the administrative
structure of the Judiciary developed a Constitutional frame work
providing for the inter-relationship of the three branches of government.
… The system has saved the Judiciary of the United States so successfully
that often emerging governments may wish to incorporate within their
appropriate frameworks, some of the following basic concepts:
(1). Promotion of inter-relationship and
communication between the Judiciary and other divisions of government.
(2). The establishment of a centralized
organization (like the Judicial Conference)
within the Judiciary for co-ordinating and communicating with other
divisions of government.
(a)
The creation of Committees within that centralized organization to
carry out assignments regarding their problems.
(b)
The development of methods, of self-management and setting of
professional standards by the centralized organization.”
3.24.1 He concludes that
Congress indeed has a vested interest in the successful operation of the
Judiciary. The administrative structures
and procedures established by Congress strengthen the independence
of the Judiciary of the United States”.
He states that the US systems are a model for ‘emerging governments’.
3.24.2 The above paper
by Judge Lloyd D.George clearly summarizes how the Judicial Conference and the
Administration of office of US bring about a fine inter-relationship between
the three wings of Government and how it helps in the maintenance of judicial independence
in Judiciary as an institution.
3.25 The Federal Judicial Centre, Washington
has published a pamphlet enumerating the ‘Building Blocks of an Independent
Judiciary’ in USA. It says that
“There can be no genuine
human rights without the protection of an independent judiciary”.
3.25.1 The Building
Blocks are 18 in number and read as follows:
(1)
Separation of powers.
(2)
Equality of status of the Judicial branch with other branches of
government.
(3)
Separation of the Judicial branch from the department (Ministry) of Justice.
(4)
Judges appointed for life.
(5)
Adequate compensation for Judges.
(6)
No reduction in Judges compensation.
(7)
Adequate staff of Judges.
(8)
Removal of Judges only by impeachment.
(9)
The power of Judicial review.
(10)
Discipline of Judges occurs only within the Judicial branch.
(11)
Judicial Code of Conduct – prohibition against political and after
kind of activity.
(12)
A Conference of Judges (the “Judicial
Conference of the US”) which controls judicial administration.
(13)
Judges prepare and submit the budget for the Judicial branch.
(14)
Judges control rules of procedure for Courts.
(15)
Judges control day=to-day operation of the courts.
(16)
Judges have control over judicial education.
(17)
Judges have control over court space and facilities.
(18)
Lawyers serve as officers of court.
3.26 In a paper on the
“Independence of the Judiciary in the 1980s.” Sir Nicolas Browne – Wilkinson,
then Vice Chancellor (see 1988 Public Law p.44) (at 51-52) says this about the
American system:
“In the USA, the problem
of the financial independence of the federal Judiciary has been
approached in a typically whole-hearted manner, reflecting the strict adherence
to the doctrine of the separation of powers. Since 1939, there has been
a Judicial Conference comprising the Chief Justice of the Courts and often
elected Judges. The Judicial Conference
is the federal Judiciary’s policy-making body.
Answerable to it (that is to say, answerable to the Judiciary) is
a separate civil service, the administrative office, which runs the
courts in their entirety, together with certain related services which we would
not include in the Court service. The
Judicial Conference prepares a budget which has to be transmitted to Congress
without alteration by the executive: the executive may comment on the budget
but not amend it. Congress then fixes
the total budget, and the Judicial Conference is accountable directly to
Congress for its expenditure. Thus the
Judicial conference both prepares the total budget and is wholly responsible
for its allocation and the administration through its own administrative
branch, which is answerable to it. The executive
has no power on either aspect of the matter”.
“This position is exactly the converse
of that, in the United Kingdom where both the total budget and its allocation
are under the exclusive control of the executive, who administer the system
through ordinary civil servants who are not answerable to the the Judges. Judges have no power or function in relation
either for the total budget or its allocation (For information on US position
see J.M. Slack, “Funding the Federal Judiciary (1979) 82 West Viginia L.R.
p.1.)”.
3.26.2 He praises the US system as follows:
“So far as I can discover, no other
country goes to the same length as the United States in ensuring Judicial
control over the financing and administration of the legal system.
3.26.3 He refers to Australia.
The position appears to be better than in UK. The Court prepares the
budget under the High Court of Australia Act, 1979, but those are submitted to
the Ministry of Finance and then referred to Parliament. The Court is accountable to the Ministry of
Finance for monies expended. Similar is
the position in Canada. Position in
Germany also is said to be comparatively better than in U.K.
Part C
The Statutory Framework in US:
(The Judicial Conference, Judicial Council, Administrative Office and
Budget)
3.27 The statute
of 1922 created (i) the Judicial Conference of the United States and (ii) a
Judicial Council for each circuit and a
Judicial Conference for each circuit.
3.28 Before
reference is made to the statute, it is necessary to refer to the structure of
the Federal Courts in US. There are
District Courts exercising original federal jurisdiction, then the circuits
Courts (now called Courts of Appeals) exercising intermediate federal
jurisdiction and then the US Supreme Court.
There are other federal Courts such as the Court of Claims, the Court of
Military Appeals, the Text Court of the US, the Customs Court and the Court of
Customs and Patent Appeals. The
District Judges who exercise original jurisdiction, also exercise admiralty and
bankruptcy jurisdiction.
(i)(a) Judicial Conference of US:
3.29 Section 331 of Title 28 US Code Service
states that the Chief Justice of US shall summon annually (a) the Chief Justice
of each circuit, (b) the Chief Justice
of the Court of Claims, (c) the Chief Justice of Court of Customs and Patent
Appeal, (d) a District Judge from each Circuit. The District Judge nominees are to be selected at the annual
conference of the Circuit under section 333 and shall serve for one year or two
years or three years as stated in the Act.
The Conference is to make a comprehensive survey of the condition of
business in the Courts in US, prepare
plans, submit suggestions to various Courts, and carry on a continuous study of
the operation and effect of the rules and procedure for eliminating delay and
unjustifiable expense. The Attorney
General, upon request of the Chief Justice of US, is to report to such
Conference on matters relating to the business of the several Courts, with
particular reference to cases to which the US Government is a party. The statute further says that the Chief
Justice of US shall submit to Congress an Annual Report of the proceedings of
the Judicial Conference of US and its recommendations for legislation.
(b)(i) Judicial Councils in
each Circuit
3.29.1
The Judicial Council of a Circuit consists of all the Circuit Judges of the
Circuit Court i.e. the appellate Judges.
Section 332 states as follows: The Chief Justice of each Circuit shall
call, at least twice in each year,
a Council of the Circuit Judges for the Circuit. At the meeting, the Chief Justice of the
Circuit shall submit to the Council, the quarterly reports of the Director of
Administrative Office of US Courts. The
Council shall take such action thereon as may be necessary. Each Judicial Council shall make all
necessary orders for the effective and expeditious administration of the
business of the Court within its Circuit.
The district Judges in the Circuit shall promptly carry into effect
orders of the Judicial Council. A
Judicial Council of each circuit may appoint a “Circuit Executive” from
among persons who shall be certified by the Board of Certification. The “Circuit Executive” shall exercise such
administrative powers and perform such duties as may be delegated to him by the
Circuit Council.
3.29.2
The “Circuit Executive” shall serve at the pleasure of the Judicial
Council of the Circuit. The Board of
Certification is to select the Circuit Executives. On the basis of the standards set up by it – including (i)
experience in administrative and executive positions, (ii) familiarity with
court procedures and (iii) special training.
The Board shall consist of five members, three of whom are elected by
the Judicial Conference of US and at least one of the three so elected, shall
be a person experienced in executive recruitment and selection. The other two members of the Board are the
Director of the Administrative office of the US state Courts and the Director
of the Federal Judicial Centre. These
five members of the Board are elected for five years. Certification of an Executive of the circuit shall be for three
years unless re-certified. The decision of the Board shall be a decision of at
least three of its members. Expenses of the Board are borne from the funds of
the Federal Judiciary. Any member of the Board who is an employee of the US
shall serve without any extra compensation.
3.29.3
The duties delegated to the “Circuit Executive” of each circuit include:
(i)
Exercising
administrative control of all non-judicial activities of the Court of appeals
of the circuit.
(ii)
Administering the
personal system.
(iii)
Administering the
budget of the Court of appeals of the circuit.
(iv)
Maintain a modern
accounting system.
(v)
Establish and maintain
properly control records and undertake a space management programme.
(vi)
Conduct studies
relating to the business and administration of the Courts in the circuit and
prepare recommendations and reports to (a)
the Chief Judge, (b) the Circuit Council and (c) the Judicial
Conference.
(vii)
Correct, compile and
analyse statistical data for purpose of the reports.
(viii)
Represent the Circuit
as its liaison to the Courts of various States.
(ix)
Arrange and attend
meetings of Judges of the Circuit and Circuit Council.
(x)
Prepare annual report
to the Circuit and to the Administrative Office of US Courts for the preceding
year plus its recommendations for the expeditious disposition of the business
of the circuit.
All the duties are subject to the general supervision of the
Chief Justice of the circuit.
(b)(ii) Judicial Conference of each Circuit:
3.29.4 There are as many ‘Judicial Conferences
for the Circuits’ as there are Circuits.
3.29.5
This conference consists not only of the entire Judges in the Circuit Court
(i.e. appellate Judges) but also the District Judges of the Circuit. Members of the Bar are also invited. (see
also Oliver, Reflections on the history of Circuit Judicial Councils and Grant
Judicial Conference 64 FRD. 201).
3.29.6
Section 333 refers to the ‘Judicial Conference of Circuits’ and requires
the Chief Justice of each Circuit to annually summon the Circuit and
district Judges of the Circuit, for the purpose of considering the business
of the Courts and advising means of improving the administration of justice
within such Circuit. The Court of
appeals for each Circuit is to provide the rules for representation and active
participation at such conferences by members of the bar of such Circuit.
Administrative Office of US Courts:
3.29.7 The
Administrative Office of the US Courts is crucial for the implementation of the
new statute. Sections 601 to 611 of Title 28 are in one chapter. Section 601 states that the Administrative
Office of US Courts shall be maintained at the seat of the Government and will
have a Director and a Deputy Director appointed, subject to the approval of the
Supreme Court.
3.29.8
Section 602 states that the Director may appoint staff, subject to the civil
service laws and section 603 states that his salary shall be the same as that
of a District Judge.
3.29.9
Section 604 enumerates the duties of the Director as
including -
(i)
to examine the state of
Court’s dockets and secure information as to the Courts’ need of assistance,
prepare and transmit quarterly to the Chief Justices of Circuits, statistical data and reports of business of the Courts;
(ii)
to determine and
pay, necessary office expenses of
Courts, Judges and officers;
(iii)
to disburse,
directly or through several US marshals, moneys appropriated for the
maintenance and operation of the Courts;
(iv)
to purchase, exchange,
transfer, distribute and assign the custody of law books, equipment, and supplies
need for the maintenance and operation of the Courts, the Federal Judicial
Center, the offices of the US magistrates and Commissioners and offices of the
pre-trial services agencies;
(v)
to audit vouchers
and accounts of the Courts, and of
the Federal Judicial Centre, and of the pre-tria; services agencies and their
staf;
(vi)
to provide
accommodation for the Courts, the Federal Judicial Centre, the pre-trial
services agencies and their staff;
(vii)
to perform such other
duties assigned by the Supreme Court or Judicial Conference of US.
The
Director’s Report and recommendations will
be public documents.
The
Director, under the supervision of the US Judicial Conference shall compile
data, which shall be laid before Congress annually by way of statistical
tables and other information.
3.29.9 Section 605 is the crucial provision. It will be advantageous to extract it as it
stands (the words which are not relevant here are shown in brackets).
“Section 605:
The Director, under the supervision of the Judicial Conference of the
United States, shall submit to the Bureau of the Budget, annual estimates of
the expenditures and appropriations necessary for the maintenance and operation
of the Courts and the Administrative office and the operation of the judicial
survivors annuity fund, and such supplemental and deficiency estimates as may
be required from time to time for the same purposes, according to law. (The
Director shall cause periodic examinations of the judicial survivors annuity
fund to be made by an actuary, who be an actuary employed by another department
of the Government temporarily assigned for the purpose, and whose findings and
recommendations shall be transmitted by the Director to the Judicial
Conference.)
Such estimates shall be approved, before
presentation to the Bureau of the Budget, by the Judicial Conference of the
United States, except that the estimate with respect to the Customs Court
shall be approved by each Court.
All such estimates shall be included without
revision but subject to the recommendations of the Bureau of Budget,
as provided by section 11 of Title 31 for the estimates of the Supreme Court”
3.29.10
It is thus clear that the budget sent up by the Director, as approved by the
Judicial Conference of US, does not (unlike the procedure in the case of other
departments) suffer any revision at the hands of the Bureau of Budget and is
forwarded. The further procedure is
stated in section 11 of Title 31. We shall now refer to that section:
Section
11 of Title 31: The title of section
11 is “President to transmit Budget to Congress; Contents thereof”. Sub clause (5) of section 11(a) is very
important.
“Sec.11:
(a) The President shall transmit to Congress during the first fifteen
days of each regular session, the Budget, which shall set forth his Budget
message, summary data and text, and supporting detail. The Budget shall set forth in such form and
detail as the President determine –
(1)
….
(2)
….
(3)
….
(4)
a recommendation of the
summary data on expenditures with proposed appropriations;
(5)
estimates
expenditures and proposed
appropriations necessary in his judgment for the support of the Government
for the ensuing fiscal year, except that estimated expenditures and proposed
appropriations for such year for the legislative branch of the
Government and the Supreme Court of the United States shall be
transmitted to the President on or before October 15 of each year, and shall
be included by him in the budget without revision.”.
3.29.11 It will be noticed that under section 605 of Title
28 the budget estimates of the entire Federal Judiciary as prepared by the
Administrative Office and as approved by the Judicial Conference of US are to
be included under the head of “Estimates for the Supreme Court” (vide the last
part of section 605 title 28) without revision by the Bureau of the
Budget (with its recommendations i.e. for the entire amount) and the President
submits the said estimate, without revision, before the Congress under
section 11(5) of Title 31. The budget
estimates of the Federal Judiciary are
treated on par with budget estimate of the Legislative branch and the President
does not revise the estimates. The
Congress as pointed in Chapter III (USA) of this Paper by leading writers, does
not (and it is the convention) make any cut in the estimates.
3.29.12
It is here necessary to point out that, in fact, section 16 of Title 31 deals
with the ‘Bureau of the Budget” which Bureau normally has power to “revise,
reduce or increase the requests for appropriations from various departments”
but the exception is with regard to the Budget Federal Judiciary and the
Legislative Wing. Other sections of
Title 31 deal with the appointment of the Comptroller and Auditor General and
an elaborate procedure is laid down.
3.29.13 Section 84 of Title 31deals with ‘rendition
of accounts of officers of courts’.
This is also important. The
latter part of the section says, while referring to certain other accounts to be
submitted to the General Accounting Office, that the accounts of the United States
Commissioners, clerks of Courts and other officers of the Courts of the United
States except the Supreme Court of the United States and Consulor Courts,
shall be sent with their vouchers to the Director of the Administrative Office
of the United States Courts and examined by them under their supervision. In other words, the expenditure accounts for
the money spent for the Federal Courts which are included in the Supreme Court
budget are not to be submitted to the General Accounting Office but are to be
submitted only to the Director of the Administrative Office of the US
Courts. This is also a remarkable
feature.
3.29.14 Summarising the position in the US Federal
Courts, we find that in US there are the District Courts at the lowest level
and the Appellate Courts (are called the Circuit Courts) and above them is the
Supreme Court. These courts administer
the Federal laws and the Federal Constitution.
All the Judges in the Courts of Appeal for each Circuit form the
‘Judicial Council of the Circuit’ and meet twice in an year. They have a
‘Circuit Executive’ who implements their decisions, on the basis of the report
of the Director of the Administrative Office of US Courts. He sends his reports
to the Judicial Council of the Circuit and also to the “Judicial Conference”.
He prepares a report to the Administrative Office of the US Courts. The
“Judicial Conference” of each Circuit consists of the Judges of the appellate
Circuit Court and the District Judges and considers the business of the courts
and method of improving the administration.
Members of the bar are also invited to its meetings. The Director of the Administrative office of
courts examines the dockets of all the courts and reports to the Chief Justices
of Circuits every quarter, collects statistics and determines the total
expenditure and also disburses the budgetary grants, deals with buildings,
infrastructure and accommodation and audits the vouchers and accounts of the
courts. These vouchers need not be
submitted to the General Accounts Wing as done by other departments. The Director acts under the supervision of US
Judicial Council which consists of
Chief Justice of US and the circuit Judges and a district Judge from each
Circuit and certain Judges from the special courts. The Director prepares the budget estimates and sends the name to
the Chief Justice of US Supreme Court who heads the Judicial Conference of
US. The said Conference, through the
Chief Justice of US Supreme Court sends the estimates of budget to the Bureau
of Budget. The Bureau of Budget sends
the estimates without any revision (but which with its recommendations)
to the President of US who places the budget estimates, again without
revision before Congress directly.
This procedure is similar to that in the case of the budget estimates of
the Legislative Department. Then the
appropriation bill is passed. As stated
earlier, a Judge of the US Supreme Court may attend Congress at that time and
by way of convention, the budget estimates are sanctioned in full without any
revision. The budgetary grants are
implemented by the Director of the Administrative Office at the various levels.
3.29.15
The recent 2000-2001 year report on the Federal Judiciary Budget gives us an
idea of the procedure in US-
The Administrative office of the United States
Courts-
“The Administrative Office of the United States
Courts serves as the central support agency for the administration of the
Federal Court system. Among the
Administrative Office’s most important responsibilities are preparing, under
the guidance and direction of the Judicial Conference and its Committee on the
Budget, the Judiciary’s annual budget requests, and subsequently submitting
that request to Congress. Because the
Judiciary’s appropriations bill is included with those of the departments of
Commerce, Justice, State and certain other federal agencies, the Judiciary’s
budget was once again delayed this year because of policy differences between
the Congress and the President. Although
these issues had nothing to do with the federal Courts, the uncertain
budget situation had the potential to jeopardize the effective and efficient
operation of the Judicial Branch.
Ultimately, however, under the leadership of the Judicial Conference’s
Budget Committee chaired by Judge John G. Heyburn, II, and Administrative
Office Director Leonidas Ralph Mecham, the Judiciary fared well in the Fiscal
Year 2001 Appropriation Bill. The 8%
funding increase will enable the Judiciary, for the first time in two years, to
hire new staff. This will come as
especially welcome news to the Southwestern border courts, which have
experienced a 125% increase in criminal case load over the past three years.
Because much of the Judiciary’s
budget is expended for the salaries of its personnel, the Judiciary devotes
considerable attention to developing scientifically derived staffing formulas
based on the functions and work requirements of the different court
offices. In order to ensure staffing
formulas reflect current work, they are updated periodically. After an intensive study of all major
staffing formulas, new formulas were developed and implemented this year. The new staffing formulas reflect
deficiencies realized in all program areas since the last formulas were
developed, as well as new work.”
An independent comprehensive study
of the Judiciary’s space and facilities program was completed this year. The consultant’s report described numerous
program achievements, including actions to achieve savings in the space and
facilities program, a useful U.S. Courts Design Guide, and an effective
long-range facilities planning process.
Due to the efforts of the Judicial Conference’s Committee on Security
and Facilities, chaired by Judge Jane R. Roth, the Administrative Office and
the General Services Administration, Congress approved funding for eight
critically needed courthouse construction projects totaling $ 559 million over
the next two years.”
A top priority of the Administrative
Office is developing and implementing
new technologies and systems that enhance.”.
4.1 The best
discussion of the subject generally and as far as UK is concerned is contained
in the article by Justice Browne – Wilkinson, Vice Chancellor in his ‘The
Independence of the Judiciary in the 1980s ‘(See 1988 Public Law, p.44).
4.1.1 According to him,
lack of “financial support” by a Government is a clear “threat to the
independence of the legal system”. The threats have arisen by reason of the
executive’ control of finance and administration. He says:
4.1.2 He points out that in England, the Lord
Chancellor and his department prepare a budget which is negotiated with the
Treasury. The Government then asks
Parliament to vote the money. Once this is voted, then the Lord Chancellor with
the help of his department often allocates funds amongst the different demands
for legal services. The Lord Chancellor, as a member of the government and a
responsible minister is accountable to Parliament for the expenditure incurred
of the money voted. But if Parliament and the Minister, between them, control
the provision and allocation of funds, how can the administration of Justice be
independent of the legislative or executive?” He says,
“He
who pays the piper calls the tune”.
4.1.3 According to him, things in Courts have
changed over from 1950 or at any rate from 1970. There had been an upsurge in
crime and also an increase (though in a lower degree) in civil cases. To meet
this, There had to be a large increase in the number of Judges, Courts, Court
staff and other legal expenditure. He, however, agrees:
“The cost of providing
the legal system (although still small as compared with that in any other
developed country) has increased substantially; no longer is it possible for
Judges to obtain all the facilities which in their view, are required.”
4.2 The Beeching Report, 1971 led to a
reorganization of Courts which shifted court administration from Judges to the
executive in a substantial measure. In
para 75 of the Constitution Paper No. 6 for the Civil Justice Review it was said
that -
“The Lord Chancellor is
responsible as a Minister to Parliament for the Supreme Court and the Country
Courts, He exercises His responsibility for those Courts through The
administrative Court service created by the Courts Act, 1971”
4.3 The creation of a separate Court service
in 1971 over which the Judiciary; had no control had also created
problems. Judge Browne-Wilkinson says
that there is a profound difference of views as to where administration ends
and where Judicial function begins.
That lies at the root of much of the friction. The assumption in the
Beeching Report that administrative and judicial functions are distinct is
according to him, not correct in the sense that the number of courts and Judges
and adequacy of staff has a direct impact on the justice delivery system. After 1971, the Court administrators in UK
are answerable not to the Judges but to their superiors in the civil service.
4.3.1 In the context of the Treasury’s insistence
on scrutinizing the spending by the concerned department. and theory of ‘value
for money’ during the Thatcher regime, certain difficulties have arisen so far
as the Lord Chancellors’ office is concerned because -
“It is not for the
executive alone to determine whether a particular Judicial procedure provides
‘value for money: Justice is not capable of being measures by an accountants’
computer”.
4.3.2 While in other departments, the concerned
Ministries can weigh the balance between money expended and “value of
service produced”, this is not true of the Lord Chancellor’s Department.
Here assessment of the need for a facility is within the province of the Judge
and not the executive. He says:
“Under our Constitution,
it is for the Judge to determine what is just and what is not just, subject
always to legislation by Parliament.”.
4.3.3 The result is that
we have a system in which the Lord Chancellor’s Department makes policies to
subserve theories of `value for
money ‘ – even without consulting Judges. He says that Judges must be involved in these decisions. He finally sums up the problems as follows:
“To sum up my argument
so far, it seems to me that the old machinery regulating the administration of
justice no longer ensures the independence of the system from executive
control. Judges are sitting in an environment wholly determined by
executive decision in the Lord Chancellor’s Department, which in turn is
operating under the financial constraints and pressures imposed by the
Treasury.”.
The result is
“The yardstick for
decision-making is financial value for money, not the interest of
Justice. What constitutes value for
money is being determined by executive, not Judicial decision”.
4.3.4 The Lord Chancellor’s office is according
to him, under the dictates of Finance Department of Government.
He says that a possible solution could be as follows:-
(1)
Judges have to accept that there are not and will not be
sufficient funds available to meet all the demands of the legal system. The cost of providing justice is only one of
the calls on public revenue. There is
no justification for a claim that the legal system has a greater right to
public funds than, for example, the National Health Service or Education. Division of available funds is to a large
extent a political question.
(2)
But if there is to be Judicial independence, the Judges must at
least be involved in the preparation of the estimate on which the total budget
is voted. More important, the judges
must be involved in the allocation of that budget, once voted, amongst the
various functions of the legal system to ensure that, subject always to the
supremacy of Parliament, the administration of Justice is under independent
control.
(3)
There must be a person or body which can speak for the Judges as a
whole.
The way the Lord Chancellor is positioned, it does not meet this problem
fully. It will therefore be necessary
to appoint a Lord Chief Justice as a person who can speak on behalf of
the whole Judiciary or to establish some form of Collegiate body, like the
American Judicial Conference, which has authority on behalf of all the Judges.
Such a body would be responsible for those administrative functions which are
to be controlled by the Judges.
(4)
Now unfortunately, the Judges have the responsibility of providing
justice without any responsibility for the economic and effective expenditure
of the money required for that purpose: the executive have power to control
finances, but no responsibility for the end-product, namely, the Judicial
decision. This kind of separation of
powers and duties – seems to be one of the basic shortcomings of the present
system.
(5)
Judges must be involved in the formulation of policies or
objectives of the legal system. Now
Parliament is evolving the policies without any consultation with Judges and
such a system is unacceptable.
(6)
If the American model were to be adopted and England is to
have a Judicial Conference funded directly by the legislature and
responsible for the whole administration of courts, these problems would at
once be solved. But the British
Constitution does not permit a system, which does not involve a minister.
(7)
If the American model is not permissible in U.K., any other system
would necessarily requires some departure from the separation of powers,
it requires the acceptance of some degree of executive involvement in the
administration of justice. An element
of compromise has to be accepted, and an attempt is to be made to
distinguish between those functions which the interests of justice require to
be under Judicial control and those which are purely administrative. Experience in other countries suggests that
in practice, such distinctions are extremely hard, may be impossible, to
draw. There will always be demarcation
disputes.
(8)
There is a pressing need for a review of the entire Judicial
finance system as done in USA, Australia and Canada.
(9)
There must be a collegiate body – apart from the Lord
Chancellor of Judges charged with the responsibility for taking policy
decisions on behalf of the Judges.
The said body shall be responsible for the management of certain
functions of court administration, with the assistance of an administrative
staff answerable directly to the collegiate body. The collegiate body would be funded by the Lord Chancellor’s
Department which would be accountable to the Lord Chancellor for these funds.
(10)
If such a collegiate body were established, any decisions as to
policy or objectives to be pursued in the administration of Justice could be
taken by the Lord Chancellor in conjunction with the judicial college.
The allocation of these funds so far as they relate to functions of management
to be carried out by the Judicial College would be made by the college.
(11)
If in any case agreement between the Judicial College and the Lord
Chancellor proves impossible, the ultimate decision would have to be the Lord
Chancellor’s.
(12)
But, in the event of the Judges’ views being rejected, the Lord
Chancellor would be required to put before Parliament, a statement by the
judicial college of their views.”.
4.4 Indeed the solutions to the problem
indicated by the Vice-Chancellor, Sir Nicolas Browne – Wilkinson are of great
importance to countries like India and all Countries which do not have the
American model.
4.5 In the recent book “The Independence of
the Judiciary’, the view from the Lord Chancellor’s Office” by Robert Stevens
(1993): it is pointed out (p.2) that the Lord Chancellor’s has become a
relatively large department after the passage of the Court’s Act of 1971 and
lies in the hands of lawyers employed therein who are exempt from basic Civil
Service Regulations, but these officers have in 1990 been integrated into the
Civil Service. The Lord Chancellor’s
Department has an annual budget of $ 1.4 Billion approved by Parliament.
4.5.1 In the Epilogue of the book, it is stated
that in UK while the dignity and the financial status of Judges has slowly
become eroded, their prestige flourished.
While the general concept of Judicial independence (i.e. as a body) is
vague, the independence of individual judges is protected. Their
public political role has lessened but their reputation for professional
and personal integrity has risen (p.182). The Lord Chancellor’s office agrees
that political control through budgetary constraints has been recognized by the
Vice-Chancellor, Sir Nicholas Browne Wilkinson (1988 Public Law, 44). It agrees that in addition to the usual
concerns about freedom from government pressure which is secured by payment-out
of monies out of the consolidated fund, there is ‘a subtler threat’ through the
‘executive’s control of finance and administration’. It notes that, according to the Vice-Chancellor, U.K. is having
court administrators reporting to the Civil Service rather than to the Judges
and this has threatened the independence of the Judiciary – The ‘value for
money’ theory was the Thatcher doctrine p.182). The Judges are obviously upset that they have not been consulted
when the Lord Chancellor’s Department produced its ‘yardsticks’ for the
Treasury’s analysis. ‘A number of
Judges think that there is some form of civil service conspiracy to
erode the independence of the judiciary and their powers’ (p.182-183).
4.6 The Lord Chancellor’s office says that
the paronia has further increased because of what was said in a Consultative
paper in the Civil Justice Review, implying that Judges are indolent. This paper has been severely criticized by
Lord Ackner. (Parliamentary Debates,
H.L. Vol.505, Col.1415 (9th April 1989). It is in this context that there is further discussion of the
threat of possibility of a Ministry of Justice being set up; and one can detect
a level of friction between the Civil Service and the Judiciary which has
resonances of the relations between
Schuster and Hewart and Hewart and Sankey.
As to whether there will be a threat of a Ministry of Justice, according
to the Lord Chancellor’s office, the threat is much ado about nothing. (Seek also G.Drewy, Ministers, Parliaments
and the Courts) (1992) (142 New L.J. 56).
Whatever the future holds – whether it is a more formalized Ministry of
Justice or a less professional department – the Department remains currently
effectively integrated into Civil Service (i.e. in 1990) (See also S.C. Silkin
: The legal Machinery of Government, 1984 Public Law, 179-86).
4.7 According to the Lord Chancellor’s
Office, this suggests that the Courts will be treated as a wing of government –
that Judges and lawyers are treated as providers of services as part of such a
social service in a welfare State. This
will surely demand a serious analysis of the independence of the
judiciary. It asks, what should be the
relationship of this independence to the public services which the Courts and
the Judges provide? It says that in
England, without any clear separation of powers, the status of the Judges has
become the core of the discussion of the independence of the judiciary. Analysis of that aspect is essential if
Judges are to play an appropriate role in the future of the Constitution and of
the public service. Britain in 1990’s
has to face concepts of separation of powers and judicial independence and as
to how far Judges can be thought of as a coordinate branch of government.
4.8 The Rt Hon’ble Lord Steyn has, it will
be noticed, treated the Lord
Chancellor’s Office as unsatisfactory in his lecture ‘The Weakest and least
Dangerous Department of Government’ (1997 P.L. 84).
4.9 But the most recent article ‘Judicial
Review – the tensions between the Executive and the Judiciary’, Rt. Hon’ble
Lord Woolf (1998) (114 Law Quarterly Review p.579) has presented a different
scenario, and says things are very much satisfactory in UK. However, a reading of his article shows that
Lord Woolf has not referred to the core problems analysed by the
Vice-Chancellor Lord Borwne-Wilkinson.
4.9.1 According to Lord Woolf the Lord
Chancellor, - as the sole head of the Judiciary, then as a Minister and as
Speaker of House of Lords always acts as a safety valve. As a member of the executive, the Lord
Chancellor can “ensure that the Courts are properly resourced, and he can also
explain to the Judiciary the political situation and the constraints of
resources”. But says Lord Woolf, the
Lord Chancellor has to keep his roles punctilious so far as separation of
powers is concerned. According to him
the justice system is now better served than it would have been by having its
interests represented by a Minister of Justice who would lack these other
roles.
4.9.2 Lord Woolf points out that the “far
reaching” recommendations of the Beeching Report 1969 were implemented in the
Courts Act, 1971. No doubt, a centrally
administered court system was created and the control of Judges over the Court
administration was substantially reduced.
Under section 27 of the Courts Act, 1971 the Lord Chancellor was given
power to
“appoint such officers
and other staff of the Supreme Court and Country Courts as appear to him
necessary for –
(a)
setting up a unified administrative Court services:
(b)
discharging any functions of these Courts; and
(c)
generally for carrying out the administrative work of these
Courts.”.
The new Court Service
which the Act set up was, he agrees, intended to be virtually in the exclusive
control off the Executive, that is the Lord Chancellor’s Department.
4.9.3 But according to him, there appears to be a
change – due to fortuitous circumstances, of things from what they were in
1980. He says that within a few years
after the new ‘Court Service’’ being established,
“It was accepted both by
the Lord Chancellor’s Department and the Judiciary that the judiciary needed
once more to be involved in the management system. The result is that today, the Courts are managed by the Court
Service in partnership with the Judiciary.
The Court Service fully accepts that one of the principal functions is
to perform its responsibilities in a way which supports the judiciary and
assists them to perform their role.
Without friction or confrontation with the Court Service, the Judiciary
has come to be more involved and responsible for the administration of Justice
than at any time since the nineteenth
century”
4.9.4 According to him, the working relationship
between the judiciary and the Court service is “now” usually entirely
harmonious and he says that the judiciary has at the same time remained
fiercely independent. Their status of Judges and their role in achieving
justice has not been diminished and on the contrary, it has been enhanced. He
points out that since 1971, the number of Judges has increased dramatically.
The increase has been in each tier of the Judiciary. Numerous new Courts have been built. The size of the Lord Chancellor’s office has mushroomed at least
proportionately. New offices have been created for members of the
Judiciary. Among others, a Judge is now
Chairman of the Law Commission. Another is Chairman of the Judicial Studies
Board. He says there is now a “Judges’ Council presided over by the Lord
Chief Justice and a Council of Circuit Judges and an Association of District
Judges “ He says that at present
the Judiciary is better organized to look after its own interests and the
interests of justice than ever before. He says:
“These changes have
taken place with the complete support of and the finances
provided by the Government. Successive Lord Chancellors have used their clout
within government to ensure that system is properly resourced.”.
Meetings take place
regularly between the Lord Chancellor and the heads of Divisions. In general,
the consultation between the Judiciary and the Lord Chancellor’s Department and
the Court Service is excellent.
4.9.5 According to Lord Woolf, this degree of
co-operation between the Judiciary and the executive is made possible because
of the dual roles of the Lord Chancellor as Head of Judiciary and minister in
Government. If he was not the head of the judiciary, the partnership
between his department and the Judiciary would be much more difficult. The Lord
Chancellors have, according to him, been able to keep their balance on the
tightrope According to Lord Woolf,
the Judiciary in UK, has nonetheless retained its independence, in view of the
Lord Chancellors’ various roles and the present state of cooperation between
the Judiciary and the civil service.
4.9.6 From the above views of Lord Woolf, it
appears that in spite of the staff.of the Lord Chancellor’s office being
integrated into the Civil Service and Judges not being consulted regarding the
budget – the present Lord Chancellors have by tight rope-walking and by their
clout been able to achieve what Rt. Hon’ble Browne-Willkinson thought could not
be achieved unless there was an independent civil Service under the Judicial
Service and Judges had a say in the budget proposals. But Lord Woolf agrees that if the Lord Chancellor were not the
head of the Judiciary this would not have been possible.
4.10 Salaries of Judges: One significant
development in UK regarding ‘salaries’ of Judges has to be noticed. (See Independence of the Judiciary,
The view from the Lord Chancellor’s Office by Robert Stevens, 1993). It was not until the Judges’ Remuneration
Act, 1965 brought in the Labour Government was passed that the Judges salaries
became comfortable. Salaries were
raised by 25% and in future, salaries could be dealt with by delegated
legislation. The Bill also meant that,
for a short while, High Court Judges would be paid more than Permanent
Secretaries in government departments, whose relative increase in salaries over
the previous 100 years had reflected the increasing importance of the executive
and the declining importance of the Judiciary (pp.132-133).
4.10.1 The establishment
of a procedure whereby High Court Judges salaries would be increased by
delegated legislation solved only half the problem. There was still friction between the Civil Service and the High
Court. By 1971, the High Court Judges
again lagged behind the Permanent Secretaries.
4.10.2 In May that year,
the Conservative Government appointed a permanent body, the ‘Top Salaries
Review Body’ to advice the Prime Minister on the remuneration of the high
judiciary: senior civil servants, etc.
As inflation gathered speed, increase was added on a yearly basis. The book refers (p.136) to the Report 6 of
1974 of the Review Body on Top Salaries (Cmnd. 5846 p.6,7) which said that, bar
earnings are to be taken into consideration.
They said:
“The Advisory Group
on the Judiciary saw no special merit in principle in the present
equivalence between the salaries of a High Court Judge and of a Permanent
Secretary in the Higher Civil Service; They also felt that bar earnings (net
expenses) (of the bar) provided a valuable independent means of checking
whether Judicial salaries were likely to prove sufficient to maintain
satisfactory levels of recruitment.”
4.10.3 The Review Body
said that since 1971, the salary of High Court Judges had been the same as that
for Permanent Secretaries.
“This relationship has
evolved without principles and we have considered ourselves not bound by it.
They said significantly
-
“The group saw no
special merit in preserving the present parity between High Court Judges and
the Permanent Secretary, as the work content is very different.” (P.32)
4.10.4 The said Body
also dealt with Pensions. The arrival of the Top Salaries Committee led the
Judges to outpace inflation pp.138). By 1992, the High Court Judges were
drawing more than the Permanent Secretaries - $ 84, 300 for High Court Judges,
$ 97,000 for Lords of Appeal and $ 93,000 for Lords Justice of Appeal, with $
82,780 for Permanent Secretaries. Because of the Top Salaries Review Committee,
the Judges salaries kept ahead of inflation, because it bore some proportion to
salaries of business executives and members
of the bar –
“This was because of the
rapid size in salaries of business executives and members of the Bar.” (P.138).
In 1991, the Committee
noted that the net average earnings in 3 years before appointment (of a member
of the bar) appointed to the High Court was $211, 300 and for those appointed
as Circuit Judges was $ 75,000.
4.10.5 In 1992, a 19%
increase for ahead of inflation was recommended (p.168) in the 15th
Report of the Committee. It was understandable. “The notion of comparability of salaries is an art, not a
science, and it is arguable that the Review Body on Top Salaries has been
forced to rely on intuition rather than principle. It has simply assumed that
Judicial salaries should bear some comparison with those of leaders in
industry and leaders at the bar”. (p.168).
CHAPTER V
AUSTRALIA
5. The High Court of Australia Act, 1979
provides that the High Court administers its own affairs under the supervision
of a Clerk who is bound to comply with any directions given to him, by the court and who holds office on terms fixed by
the Court. Under the Clerk are certain other officers answerable indirectly to
the Court.
5.1 The High Court prepares its own budget
estimates. But these estimates are
submitted to the Minister of Finance and voted by Parliament for the purposes
of the Court. It appears that the High Court is accountable to the Minister of
Finance when monies are expended. In South Australia, the Court – through the
Registrar (appointed upon the recommendation or concurrence of the Chief
Justice), is responsible for its own administration. It is said that in
Victoria, there are proposals under which, although the Judges are accountable
through the Ministers for the spending of the funds appropriated for the
benefit of their Courts, the allocation of the sum so appropriated and the
administration of the Court lies wholly within the Judges’ own Control free
from interference by the executive. (See 1988 P. L. 49 at 52-53L The
Independence of the Judiciary in the 1980s by Sir Nicholas Borwne-Wilkinson, V.
C.).
5.2 Justice Michael Kirby in his article
relating to Australia (See Ch. 2
Judicial Independence: The
Contemporary Debate by Shimon Shetreet
p.8) states that the “administrative personnel of the Courts (in
Australia) are responsible in each jurisdiction to a Chief Administrative
Officer, in some Courts known as the Registrar. The Registrar is responsible to
the Chief Justice for all matters pertaining to the business of the Court. The
administrative personnel are government employees and the Registrar is,
therefore, responsible to the executive government with respect to the terms
and conditions of employment, financial accounting and other
non-judicial matters. The exception to
this system is the High court of Australia where the administrative personnel
are responsible, even in non-Judicial administrative matters, to the Judges in
whom is vested by law, the responsibility for the administration of the Court.
5.3 The Chief Administrative Officer, often
known as the Registrar, is responsible for preparing the budget of the
Court, for contacts with the appropriate minister and organized bar and
statistics.
5.4 Except in respect of terms and
conditions of employment of administrative and financial accountability, executive
control of the above matters is according to Justice Kirby, considered as
being incompatible with judicial
independence.
5.5 In most jurisdictions, the Court’s
budget is an identifiable part of the budget
of the Department of Justice. In the High Court of Australia, it is a lump
sum figure for the expenditure of
which Judges are responsible. (This
permits Interchange from one head to another). Court budgets form part of the
executive budget and are approved in the same way as other budgets, according
to ordinary procedure. The services to federal courts are financed by the
federal government. The services to the States are financed by the respective
States.
5.6 The Minister of Justice, or his
equivalent is responsible for administrative personnel but in all matters
pertaining to the business of the Court, these officers are responsible to the
Chief Justice. Court buildings are the
responsibility of the Minister. The exception is the High court of Australia,
which is solely responsible for its own administrative personnel and buildings.
5.7 At the federal level and in some States,
machinery has been established for the regular, automatic review of Judicial
salaries. The salaries are determined by the Remuneration Tribunal pursuant to
the Remuneration and Allowances Act, 1977 (Cmwth) (Part IV)_ and the
Remuneration Tribunal Act, 1973 (Cmwth). The Chairman of the Tribunal is a
State Judge. The Tribunal’s report is placed before Parliament which if
disapproved within 15 sitting days, it shall not come into operation or if it
has already come into operation, it shall terminate from the date on which the
resolution is passed. The Tribunal treats the Consumer Price Index as relevant
in fixing the salaries.
5.8 Pressure of an indirect kind may be more
important, according to Justice Kirby. The failure to appoint an adequate
number of Judges to cope up with Court business or to authorize adequate
expenditure or personnel for Court functions, provides an illustration of
indirect executive pressure on Judges.
5.9 Justice Mason in his ‘judicial
Independence and the Separation of Powers : Some Problems old and new (1990)
(Vol. 13(2) U.N. SW Law Journal p.173) says while speaking of the institutional
independence, that increase in litigation and legal aid costs have required
greater financing by the State in recent years. He says that in earlier times
the administrators were inclined to show deference to the Judges’ views on
matters of administration. Now they are more inclined to impose their own
solutions. He says that, in Australia, no doubt, at the federal level, Courts
have acquired greater autonomy in matters of administration and expenditure.
The High Court of Australia Act, 1979 (cmwth) gave the High Court corporate
status and made it responsible for its own administration. The Court enjoys a
one line appropriate and, within certain parameters, it is theoretically at
liberty to expend its own funds as it sees fit (i.e. it can shift monies
from one head to another). The Federal Court and the Family Court now have the
benefit of a one-line appropriation and the ‘Courts and Tribunal Administration
Amendment Act, 1989’ (cth) has made the Chief Justice in each case responsible
for managing the administrative affairs of these two Courts, though without giving
them any corporate status.
5.10 So far as the High Court is concerned,
although Parliament appropriates the High Court’s funds by the annual
Appropriation Acts, for all practical purposes the High Court’s budget
is determined by the Department of Finance after negotiation with officers
of the Court and officers of the Attorney General’s department. The process
of negotiation may involve the Attorney-General and the minister of Finance and
ultimately, if a decision is not reached
at that level, it goes to the Expenditure Review Committee of Cabinet.
5.11 The participation of the Attorney-General
and his officers is essential. Because in Australia, the systems of Executive
Government reflect the Westminister model, important decisions affecting the
Courts are made at ministerial or Cabinet level. So, it is essential,
according to Justice Mason, that the Court be represented by a responsible Minister in negotiation with
other Ministers or in Cabinet discussions. Australia has not followed the US
procedure of negotiating an appropriation directly by the legislature. That is
a public procedure in which the Justices of the Supreme Court of US appear
and testify before a Congressional Committee.
5.12 Australian system has some disadvantages
in staff recruitment. Courts can only offer a limited career while staff
turnover tends to be high. While Courts participate in the negotiation of their
budgets, the problem of securing adequate funds continues if government
considers that it must reduce public expenditure. Justice Mason says that
determination of Court funding by Parliament, rather than by the Executive,
might alleviate this problem and eliminate this source of conflict with the
Executive. It should involve a public process of negotiation in contrast to the
existing process of private negotiation.
5.13 Justice Mason says that it is wrong for
governments to think of funding Courts only through Court fee collections. He
also refers to the fixation of salaries by the Tribunal.
5.14 In 1986, the Australian Institute of
Judicial Administration conducted a seminar on financial budgeting of the
Judiciary and the said seminar has gone into these aspects in great detail.
5.15 As pointed earlier, before 1986, the only
Court in Australia which since 1979 had full control over its own budget and
internal administration was the High Court of Australia. Subsequently, the
federal Courts of Australia were given similar powers and responsibilities.
5.16 Justice B.M. Debbele (1993) 67 Australia
Law Journal (p. 243-248) says that in 1989,
the Fitzgerald Report of a Commission of Enquiry, stated as follows:
“The independence of the
Judiciary is of paramount importance and not to be Judicial Independence is an
over-dependence upon administrative and financial resources from a government
department or being subject to administrative regulations in matters associated
with the performance of the Judicial role. Independence of the Judiciary be
speak as much autonomy as is possible in the Internal management of the administration of Courts.”
On 27th August, 1992, the South Australian
Government took a step forwards for establishing a system independent of the
Executive Government by introducing a Bill to enact the Court Administration
Act. The Bill was referred to the Select Committee. The Judicial Council is
to be a body corporate comprising the Chief Justice of the Supreme Court, the
Chief Judge of the District Court and the Chief Magistrate of the Magistrates’
Court. The said Council is to be responsible for providing or arranging for the
provision of the administrative facilities and services. The Judicial Councils’
Chief executive officer (the Court Administrator) will not be a member of the
Public Service and would be responsible to the Judicial Council. Subject to the
direction and control of the Judicial Council, he is responsible for the
control and management of staff, property and facilities of the Department.
5.17 If enacted, the legislature will enable
the Judicial Council to determine administrative policy and give major policy
directions to the Court Administrator. The Court Administrator would be
responsible, subject to the directions of the Judiciary through the Council,
for preparation of the Court budget for submission to the Attorney-General. Under the Bill, the Attorney-General would
continue to be responsible to Parliament for the operation of the Court system.
The responsibility will entitle him to require and receive information of the
administration of the Courts and to convey the Government’s views to the Judiciary
or Court Administrator as to any changes which should be made. Full
accountability of the Judicial Council for its budget administration is
provided for in the Bill.
5.18 The Select Committee recommended the Bill,
making certain amendments. It also suggested that ‘any member of the Council
shall, if requested, attend at the Estimates Committees of the House of
Assembly and at any Parliamentary Committee established under the Parliamentary
Committees Act. [It is not clear what happened thereafter].
5.19 Justice R.D. Nicholson of Australia in his
‘Judicial Independence and Accountability: Can they Co-exist’ (67)(1993
Australia Law Journal 404) has gone
into the subject in greater detail.
He has discussed the question of separation of powers and other aspects,
including ‘Finances’ (p.421). He refers
to what Justice Malcolm, Chief Justice of Western Australian Stated (Judicial
Power, (1991) UWA L.R. 13):
“the preparation of
Judicial estimates by anyone not acting under the direction of the Judiciary
and the exercise of control by the Government over the way in which the Courts
expend the funds granted to them necessarily poses a potential threat to
Judicial independence.”
Justice Nicholson points
out that for this reason, some countries provide for the judicial branch to
have a right to present its budget direct to the legislature rather than
through the Executive. This is the
practice in the U.S. Federal Courts. In
Papua New Guinea there is a constitutional right for Parliament to increase
proposed expenditure for the services of the Judiciary where it falls below the
estimate submitted by the Chief Justice [Papua New Guinea, Constitution s.209
(2B) s.210(3)]. Absent such a legal
base and given political realities, there is a substantial problem which the
judicial branch faces if a government fails to adequately fund the branch. That has not generally been the position in
Australia but it has been the case in relation to Victoria measured on a
comparative basis (see Alan Barnard and Glenn Withers, ‘Financing the
Australian Courts’ – The Australian Institute of Judicial Administrations
Incorporated, 1989). Probably the
only potent weapon the judicial branch possesses in such a case is to publicly state the respects in which it is
unable to deliver the services expected of it, although it could not be
pretended that such an issue would either be understood publicly in the context
of Judicial independence or would long hold the public imagination.
5.20 Sometimes there are sudden demands on
the judicial branch because of unexpected statutory amendments resulting in
fresh influx of cases or increase in legal aid – such as the Bhopal
disaster in India or the worldwide share-market crash of October, 1987 giving
rise to substantial litigation, or the success of one litigant, - such as in
the asbestos cases. New remedies
introduced by Parliament without adequate regard to the resource implications
etc. could increase the workload heavily.
5.21 The existence of Judicial independence
cannot, according to Justice Nicholson – be separated from adequate and proper
judicial administration. This was
recognized in Russell Wheeler’s seminal essay in which he observed that
“The importance of
Judicial independence permeates judicial administration”.
(Russel Sheeler,
Judicial Administration: It’s relation to Judicial Independence: National
Centre for Courts, 1988 p.4). He said
that ‘our contemporary understanding of judicial independence includes a
panoply of administrative arrangements’. (ibid p.7)
5.22 Judicial Administration involves both
policy making and policy administration.
If the Judicial branch is poorly resourced and administered, its
independence will be of little value to citizens. Appropriate Judicial administration requires adequate financing
that leads to preservation of public confidence by the efficiency, which it
produces. Consistent with Judicial
independence, Judicial administration should be provided to the Judicial branch
by its own staff.
5.23 The 1991 report of the Australian
Institute of Judicial Administration (by Thomas.W.Church & Peter A
Sallmann) “Governing Australian’s Courts” has examined three models—
(i)
the first is the ‘traditional’ model, present in most Australian
States, whereby a generalised executive department, provides Court services;
(ii)
the second is the ‘separate executive department’ model, seen in
South Australia, by which Courts are administered by a separate department of
State devoted exclusively to Judicial administration; and
(iii)
the third is the ‘autonomous’ model, seen in the Federal and
Family Courts and the Administrative Appeals Tribunal, whereby a substantial
administrative autonomy lies with the Court.
(Prof. Sallman is Executive Director of the Australian Institute of
Judicial Administration. Prof.
Thomas W. Church of State University of New York is a specialist in
Judicial Administration).
5.24 According to Wheeler (n; 88, p.37), the
efficiency and integrity of the judicial branch can be enhanced by three
methods, namely:-
(i)
by the daily promotion of effective administration of justice in
the daily work of Court administration;
(ii)
by protection of courts from dependence on other branches; and
(iii)
by promotion of Courts’ accountability through their relations
with the external public which have interest in court operations.
5.25 Planning, according to Justice Nicholson,
is of great importance. Planning of space
and facilities necessary for the conduct of the business of the judicial
branch – is to be done in advance. Long-range
Planning, the determination of
priorities for growth, the approval of minimum standards, factors pertaining to
the location of courthouses, the role of technology in court-rooms and
court-houses are matters in relation to which judicial leadership and input are
important. The Chief Justice of South
Australia has expressed that it is essential that control of Court buildings
and facilities be vested exclusively in the Judiciary, including the power to
determine the purposes to which parts of the buildings are to be put and the
right to maintain and make alterations to the buildings (Chief Justice J. King
“Minimum Standards of Judicial Independence, (1984) 58 A.L.J. 340 at 342-343).
5.26 It is true that increased Judicial
independence will result in more judicial accountability at a time when Caseloads
have increased. It also imposes an
additional duty to maintain high efficiency in reducing delays so that public
confidence is increased (A.J. Miller, ‘Public Confidence in the Judiciary: Some
Notes and Reflections: (1970) 35 LAW and Contemporary Problems 70 at 82). It is also necessary that the Court system
be economically and procedurally accessible to all citizens. ‘The authority of the law rests on public
confidence’ (Gallaghare vs. Durack (1983) 152 C.L.R. 238 at 243).
5.27 In (1994) 88 Australia Law Journal p.173
(at p.174) Justice Ken Marks, who was a Judge of the Supreme Court of Victoria,
referred to his experience on financial ‘Judicial Independence’, as follows:
“My only experience of
the budget process is in Victoria where it can be confidently said that the
administration of justice is quite adversely affected by the dominance of the
Executive and the financial allocation for it.
While lip service is paid to some kind of consultative
process between the department and the Judges, decisions for the most part are
made without regard to the information provided by the Judges or their views as
to need. But more seriously, the chance
of adjusting Court administration to the needs of a modern society is greatly
reduced by the institutionalized disregard of the perception of those
needs by the Judges. Needless to say,
their opinions, which are not altogether irrelevant, have little or no
persuasion.”
He says that by
under-resourcing and controlling of the staff, the Executive does undermine the
independence of the judicial branch. In
Victoria, for example, the budget is allocated to what is now called the
Justice Department which itself decides the allocations between itself and
the Courts. Each year’s
allocation progressively shrinks. He refers to the Australian Institute of
Judicial Administration Report, which says:
“Many Judicial officers
lack interest in budget matters. But it is fuelled in Victoria by a common
perception in the Courts that judicial efforts in the area seldom come to
anything.”
The Report says:
“Australian Courts like
their cousins in England and Canada, are not independent; on the contrary, in most
Courts, the situation is one of almost complete dependence on the executive
branch.”
CHAPTER VI
CANADA
In Canada, the Judiciary does not – according to Hon’ble
Jules Deschenes, Justice of the Supreme Court of the Province of Quebec and
author of many works on Judicial Independence – enjoy the same independence in
the court administration as it does in relation to judicial prerogatives. (See Judicial Independence, The
Contemporary Debate, 1988, by Shimon Shetreet and J. Deschenes, Chapter 47, pp
514-524). Everywhere across Canada, it
is basically the provincial Ministers of Justice who are responsible for the administration
and in turn they call upon various departments for the purposes of judicial
administration. This administrative
subordination of the Judiciary to the executive causes a great deal of
friction. The friction has attained a
uniform level throughout the Country, in the 13 States namely, the Central
Government, the 10 provinces and two sparsely populated territories.
Essentially, he says, the Judiciary is disturbed by two factors:
(1)
The ambiguity in the position of the Minister of Justice or Attorney
of Justice or Attorney-General who combines the function of Attorney for public
prosecution and that of provider of courts services;
(2) The ambivalent relations existing
between Court staff and judiciary.
The subordination of the
Judiciary is rooted in the executive’s overt intention to take, exercise and
keep total control of the management of the courts.
6.1 According to him, the public perception
of justice does get adversely affected by this situation, where Judges are seen
entreating permission and beg for resources from the executive. The Canadian Judiciary moved in depth in
1980 into the assessment of the situation.
The Canadian Judicial Council, the Judges’ Conference and
the Institute for the Administration of Justice therefore jointly decided
to sponsor and study and the same was started in 1981 by Justice
Deschenes and Prof. Carl Baar of Brock University, in Ontario. It resulted in a Report, which was
produced in mid-September, 1981 – called “Matters in their own House”.
6.1.1 The inquiry by the Committee was extensive on the following:
(i)
collection and study of 312 statutes dealing with various aspects
of the administration of Justice;
(ii)
examination of 99 written expressions of opinion received from
Judges of all parts of the Country;
(iii)
interviewing privately 187 people of 8 different nationalities in
27 cities of 4 countries;
(iv)
meeting 12 of the 13 Ministers of Justice, 12 Dy. Ministers, 25
administrators of Court services, leaders of 11 Provincial or Territorial Bar
and 40 Chief Justices of Chief Judges appointed by each of 13 governments;
(v)
making on the spot-study of Federal and State systems in the USA,
UK and meeting representatives of 25 countries in Lisbon;
(vi)
embarking on extensive research programme which was carried to
fruition by Prof. Carl Baar and enabled Justice Deschenes to have access to
useful information in 125 works from Australia, England, France, Italy, Israel,
New Southwales, New Zealand, Nigeria, USA and Canada; and
(vii)
reflecting on the situation in 650 federally appointed and 1000
provincially appointed judges in all 13 Jurisdictions in a system which employs
10,000 support staff and spent in the fiscal year 1979-80, strictly for the
administration of the Courts one can $ 322 million.
6.1.2 The above effort
of the Committee ripened into 198 recommendations which bear the essence of the
administration of Courts in Canada.
6.1.3 According to him, the study on the
independent judicial administration of the Courts ought to be undertaken within
the broader framework of the theory of the general independence of the judicial
power. Canada got a Charter of Rights
in 1982. The above Report made the
Montreal Gazette congratulate its authors.
But the newspaper stated that it was a sad story that the Report
revealed and
“demonstrated that the (Judicial) pillar
rests on dangerously sandy ground (p.520)”.
6.1.4 Thereafter, the Research
Committee of the Judicial Council of Canada studied the Report and gave its
recommendations.
6.1.5 Justice Deschenes
refers then to the International efforts to promote Judicial Independence –
which has been set out already in Chapter II.
It appears that the Syracuse Report had the benefit of the Report of Justice Deschenes &
Prof. Baar and finally the over-embracing study took place under the Special
Rapporteur, Dr. L.M. Singhvi by the ECOSOC.
6.1.6 He concludes by criticizing the
unsympathetic bureaucratic approach to the problems as follows: (p.523)
“That is why in Africa
as in America, in Europe as in Asia, Court ought and want to escape from the
smothering hold of the political power.`
In their (Courts’) administrative autonomy lies the necessary guarantee
of their independence fundamental freedoms that, by right of
birth, each man and woman is entitled to enjoy. Let us join hands and efforts in order to achieve our aim. Once upon a time, Moses had thought that he
could concentrate the whole administration of Justice into his hands. Jelthro, his father-in-law admonished.
“Thou wilt surely wear
away, both those, and this people that is with thee, for the thing is too heavy
for thee; though art no able to perform it thyself alone (Exodus, 19:18).”
He says, let us not
delude ourselves either: we need each other.
But together, nothing is beyond our reach and the universal
independence of the Judiciary can be seen dawning on the horizon.
6.2 Prof. Carl Baar – Co-author of the above
Report in Canada – in an article ‘The Courts of Canada’ in the book ‘The
Political role of Law Courts in Modern Democracies’, by Judge L.Walliman and
Kenneth M. Holland, 1985 – has again given a picture of financial independence
in Canada.
6.2.1 He says that in all the provinces (except
the Supreme, Federal and Tax Courts of Canada), the responsibility regarding
the administration of court services has been delegated to the provincial
Attorney-General/Minister of Justice.
Therefore, all Court administrators are employed by an executive
department; according to standards developed for executive departments; even
the rules of courts in most provinces require Cabinet approval. The provincial Attorneys General who are
members of the provincial Cabinet justify their roles in Court
administration. They argue that someone
must be held accountable for the expenditure of public funds to operate the
Courts, and only they as ministers can be called upon to account before the
legislature; Judges as independent officers cannot be (so accountable). They say that executive control over Court
administration does not compromise the independence of the Judiciary because
the Judicial independence extends only to the ‘adjudicative functions and not
to the administrative support services’.
The Court clerk who is appointed, paid and promoted by the Attorney
General’s department is nonetheless under the direction of the Judge while in
the Courtroom.
6.2.2 Prof. Baar says that therefore members of
the Judiciary have grown increasingly apprehensive about this administrative
system even though it has been the norm for a century. But, to many Canadian officials, the contrast
between executive control of court administration in the provinces and judicial
control of court administration in the US illustrates a difference in
constitutional systems; a parliamentary system requires ministerial
responsibility and hence executive control – while a system based on
separation of powers leads to judicial control over the court administration
within a separate branch of government (see Carl Baar, Patterns and
strategies of Court administration in Canada: Canadian Public Administration
XX: 242 (Summer 1977). According to
Prof. Baar, this constitutional contrast ignores history for before 1939; the
US federal courts too were administered by the Attorney General, who ceded
control when the US Federal Judiciary showed its willingness to take
responsibility. In 1977, initial steps
in the same direction were taken by the Supreme Court of Canada, so far as
superior courts were concerned.
CHAPTER VII
OTHER COUNTRIES
GERMANY
7. In order to reduce bureaucratic
pressure over Federal Administrative and Fiscal Courts, Parliament in 1969
shifted supervisory authority from the Ministries of the Interior and Finance,
respectively, to the Ministry of Justice, over whose policies the Courts could
not sit in Judgment (Schram, Recruitment of Judges, p.692).
7.1 Because the Constitutional Court
is a co-equal constitution organ, it draws up its own budget and
receives appropriations directly from Parliament, by – passing the
Justice Ministry. (See the book ‘The
Political Role of Law Courts in Modern Democracies by Jeord L. Waltman and
Kenneth M. Holland: Chapter V by Kenneth M.Holland).
7.1.1 So far as Court supervision over Court
services is concerned, the Judges are treated as part of Court
administration – as distinct from their judicial functions. In matters of Court administration, they
are subject to the directives of the competent Minister. (See Ch.10 by Prof. Peter Schlosser and
Prof. Walther Habscheid in Prof. Shimon Shetreet’s book).
7.1.2 On the financial side, the Courts have no
financial autonomy. They cannot apply
directly to Parliament for their budgets.
This is done for them by the Ministry of Justice or other Minister who
is competent for the sphere concerned.
7.1.3 In the budget plan of Parliament, no
special provisions are made for the Judgeships and financial needs of any
single Court, but are made for the Judiciary generally. The allocation to the individual Courts are
the sole concern of the Minister of Justice or of the special Minister who is
granted judicial powers in a particular field.
In the latter case, the principle of global allocations to a ministry is
particularly awkward, since there exists the danger that it will neglect its
‘legal department’.
FRANCE
7.2 Court budgets are part of the executive
budget. They are approved by the same
ordinary procedure as all other budgets.
At the central level, the Minister of Justice is responsible for the
Justice budget in collaboration with the Finance Minister, like any other State
administration. Chapter 8 of Prof.
Shimon Shetreet’s book by G. Grivant de Kerstrat).
7.2.1 The judiciary was suppressed by the
revolutionaries, as well as the Bar but Napoleon “restored the Courts” though
not the Judicial power. The existence
of a judicial power enjoyed collectively and as an entity apart from the
legislature and executive, has never been restored.
7.2.2 Curiously, the traditional French
doctrine is resolutely against the very idea of ‘separation of powers’ though it was the French political
theorist, Montesquieu who was the inventor of the phrase. This is borne out by the integration of the Judiciary
into the executive and the ‘functionalisation’ of their personnel (Ch.7 in Prof. Shimon Shetreet’s book by
Dallisk Radamaker).
ITALY
7.3 The Italian Judiciary enjoys a high
level of institutional independence.
The Italian magistrates are recruited into the Judiciary and
cannot be removed except by the Higher Council of Judiciary.
7.3.1 The heads of the several divisions of
the Ministry of Justice must by law be chosen from among top-level magistrates
and the Ministry has also selects among them its head of Cabinet. The Ministry of Justice is staffed in
its top positions, by Magistrates, but the Minister – a politician with
scarce experience in Judicial matters – has only limited authority over them
since he cannot influence their career.
Consequently, the resources that Judges and public prosecutors
(recruited by the Judiciary) can exploit in order to enlarge their power, has
increased (Chapter 8 by Giuseppe of Fediric and Carlo Guanieri in the book ‘The
Political Role of Law Courts in Modern Democracies’).
JAPAN
7.4 Judicial administration is now in the
hands of the Judicial Conference composed of 15 Supreme Court
Justices. It is policy-making body as
per the Constitution, with rule making power to ensure its judicial
independence and autonomy. (There is
also Judicial Conference for each Court).
7.4.1 Assisting the Judicial Conference of
the Supreme Court is the general Secretariat of the Supreme Court. It’s Secretary General as well as all its
supervisory personnel are Judges. These
top Judge-bureaucrats replaced the pre-war Justice Minister (See Ch.10
by Hirosha Itch in the book ‘The Political Role of of Courts in Modern Democracies by Jerold L.Wiltman & Kenneth
M. Holland).
7.4.2 According to Prof. Jasuhei Taniguchi (see
Ch.18 of Prof. Shimon Shetreet’s book pp.205 etc.), at the level of each
Court the Judicial Conference presided over by the President of the Court is
responsible for the matters of Court administration. The Ministry of Justice has no
organizational relation with the Judiciary.
The Judicial Conference makes decisions by way of resolution
and the president of the Court enforces them.
The Judicial Conference of each Court decides various matters
pertaining to judicial administration involving the subjects of personnel and
preparation and enforcement of budget, maintenance of court buildings and
facilities. On the other hand the
President of the Court is internally responsible for enforcement of the
decisions of the judicial council. He
has control of his administrative staff.
Contact with the Minister of Justice is handled by none except the Chief
Justice of the Supreme Court.
Responsibility for the central administration of the whole Judiciary
lies with the Judicial Conference of the Supreme Court.
7.4.3 The budget procedure though presented to
the Executive and by the Executive to the Legislative (the Diet), there are
important safeguards. The budget is
prepared by the Judicial Conference of the Supreme Court for the whole
Judiciary. The budget for the Judiciary is an independent item
of the national budget. It is
not part of budget for any ministry.
The budget is proposed by the Cabinet before the Diet. But if the Cabinet proposes cuts in the
budget proposed by the Conference it has to place its proposals for cuts also
before the Diet and indicate which item is to be cut or not to be cut to
satisfy the Supreme Court’s demand, so that the Diet can make a choice. In most cases, a compromise is reached between
the Supreme Court and the Ministry of Finance and the above procedure is rarely
followed (p.207). Court services are financed by the State. The Judicial Conference of the Supreme Court
is responsible for the Court buildings of the whole country.
7.4.4 Judicial salaries are fixed by the Diet but
are kept higher than salaries of the non-judicial employees though in
1988 they were below those of the non-judicial employees.
There is a recent Article in 1996 Aust. L.J. p.125 by Davind Tan entitled “Death of Judicial
Independence: The Japanese Judicial Bureaucracy on Trial”. He says (p.128) that the existence of
judicial independence cannot be divorced from adequate and proper judicial
administration. Consistently with
judicial independence, the judicial administration should be provided to the
Judicial branch by its own staff and not by the executive branch.
“In Japan, the Judicial
bureaucracy that manages the day-to-day operations of the national judicial
system is the “saibankan Kaigi” – the Grand Bench convening as a Judicial
assembly to discuss matters of judicial administration – and it acts through
resolutions that are implemented by the
General Secretariat of the Supreme
Court.”.
There is also the
exchange between the judiciary and the Ministry of Justice or the public
prosecutors. In 1982, 14 Judges and
Asstt. Judges were on transfer to the Ministry of Justice.
CHINA
7.5 Justice Mason, Chief Justice of
Australia while referring to the lack of autonomy given to the High Court of
Australia in the matter of its own administration and expenditure states that
he noticed something curious in China during his visit. He states:
“To my surprise, on a
recent visit to China, I learned that the People’s Republic had granted similar
autonomy to the court system over its administration 10 years ago – an
interesting development in a country which has not seen the need for Judicial
independence as we have seen it”. (See Vo.19 (1993) Commonwealth Law Bulletin,
Speech by Sir Anthony Mason, Chief Justice of Australia in ‘The Independence of
the Bench’ etc.).
CHAPTER VIII
INDIA
8. To have an independent Judiciary in
India is not merely a fundamental right of the citizen but is part of the basic
structure of the Constitution as held by the Supreme Court. Therefore, the independence of the Judiciary
must have topmost priority.
8.1 In the last 50 years, there has been no
proper allocation of funds commensurate with the corresponding increase in
population, legal awareness, increase in legislation. There not being a periodic Five Year or an annual Plan for the
Judiciary, the absence of such plans has compounded the problem. The result is that there is, in terms of
international Covenants and resolutions set out in Chapter II, a clear
violation of the basic structure of the Constitution and of the basic human
rights resulting in an excessive ‘overload’ of cases.
8.2 The Judges in all courts are constantly
under pressure for early disposal of all cases, old and new. The pressure today weighs on the mind of the
Judges so much that it can lead to a miscarriage of Justice. Delay in disposal of criminal cases is
resulting in the prosecution not being able to establish the guilt of the
accused. Long delays in the criminal
courts at trial stages are requiring bail orders to be given to the accused or
otherwise they would spend more time in jails than as under trial
prisoners. Delays in criminal cases are
resulting in witnesses turning hostile in many important cases, due to extra
legal approaches made to them.
8.3 Property matters and Rent Control cases
if not decided early can lead to parties taking the law into their own hands or
resorting to extra judicial methods.
Delay in disposal of matrimonial cases is resulting in the spouses not
being able to get early adjudication of divorce disputes. So is the case of
land acquisition and motor accident cases.
It is not necessary to multiply examples. Trial Judges and appellate Judges are blamed when they adjourn
cases to dates far off on the time scale.
Litigants do not understand that if cases are listed to closer dates,
cause lists will explode on the adjourned dates due to addition of an
unreasonably large number of cases, and cases cannot at all be taken up. More time will be spent in calling out cases
for adjournments.
8.4 So far as the Indian scenario is
concerned, it is not as if there are not plus points. In certain respects we are in a better position than some other
Countries, so far as the Judicial services, and that control of supervision of
the Judicial services,- both in the higher and subordinate Judiciary. The officers and staff in the Supreme Court
of India and in the High Courts are wholly under the control of the Chief
Justice of India or the Chief Justice of the High Courts, as the case may be,
under Article 146 and Article 229 respectively – in regard to recruitment and
disciplinary action etc. The salaries
and pension and administrative expenses of the Supreme Court and High Court,
including salaries, allowances and pension payable to Officers and Staff are
charged upon the Consolidated Fund of India and any fees or other money taken
by the Courts is to form part of that Fund. Article 112(2)(d) and Article
202(3)(d) of the Constitution are also relevant. So far as the officers and staff in the Subordinate Judiciary are
concerned, they are under the control of the District Judge, subject to the
overall supervision of the High Court under Article 235 of the Constitution of
India. There is absolutely no
interference either from the executive or the legislature. No doubt Rules governing the condition of
services of these officers in regard to salaries, leave or pension require the
approval of the Executive, if there are financial implications but even then
rules have to be made in consultation with the High Court.
8.5 However, so far as financial
independence or support is concerned, our present system is suffering from
serious difficulties. It is these
difficulties that are the cause for the clogging of cases in the subordinate
courts and in several High Courts. It
is true that by means of Alternative Dispute Resolution systems such as Lok
Adalats several lakhs of cases have been disposed of in the last more than a
decade, but that, in the overall perspective, has not reduced the general
congestion in the subordinate courts and the High Courts.
8.6 Basically, lack of long-range planning
and lack of finances have been the main causes for the storage of courts and
Judicial officers in all parts of the country.
8.7 In principal cities like Delhi, Bombay,
Calcutta and Madras even increasing the court rooms has become difficult due to
lack of land for construction or ready accommodation. Further extreme bureaucratic procedures requiring consultation
with half a dozen departments thwart any progress. A stage has reached where, if officers upto the full strength of
the Judicial service are recruited, some of them have to sit idle for want of
court rooms.
8.8 From the analysis of the system in other
countries, including USA, constitutional government of Germany and Japan, it is
clear that the policy making for the Judiciary is by the Judges and the budgets
are prepared by an administration which is responsible to the Judges and not to
the executive and it takes into account the demand for extra Courts and the
increase in Civil and criminal cases because of new legislation and it draws
plans for the future, both long range and short range. The budget as prepared by its bureaucracy is
approved by the Judicial Council as in US and German constitutional Court and sent (1) directly to Parliament or sent
to Parliament through the Executive by placing before Parliament (as in Japan),
the budget as prepared by the Judges council and as cut by the executive and at
that stage, a broad settlement is made between the Judges Council and the
Executive and approved. In the US a
Judge may appear before the Congressional Committee if need be. It is therefore essential to have a Judges’
Council as a policy making body to look into its own needs and a regular bureaucratic
system of administrators who will prepare the budgets and receive a lump sum
grant for the government and spend it, under the supervision of the Court and
are accountable to the Court. The
Judicial Council is accountable to Parliament or its committee.
8.9 But we do not have a system by which the
Judges can be involved in the preparation of long range Plans for the future,
or a body which will be responsible for making statutory recommendations
keeping in view the present excess work-load and the anticipated increase if
cases, say, in the next five years. In
India, no body does go into the question as to how any fresh legislation can
increase the work-load – a study which is mandatory in USA before the legislation
is brought into force. We have no
judicial organization or body which can fight for the needs of the Judiciary.
8.10 In the Supreme Court and the High Courts,
budgets are prepared by the respective Courts but these budgets have to be
submitted to the Union or State Governments, as the case may be, which will
have the final say in regard to the extent of budgetary support. On the theory that the Judiciary is not
productive of ‘goods’ or utilities, or application of ‘value for money’ theory,
propounded in England by Mrs. Thatcher, the judiciary has always been a very
low priority. The result is that the
judiciary has never got its due share of finances in the last fifty years
either for increasing the number of Courts or the number of Judicial Officers and supporting staff, in
the whole country.
8.11 Again, the Chief Justice of India alone
has powers to shift the monies allocated for one subject to another subject
(Justice P.N. Bhagwati, Vol.I CIJL Year Book p.16)(1992). The High Court Chief Justices had no such
power. Result was that if monies
allotted to one head are not spent, they will lapse at the end of the financial
year. Only recently pursuant to a
resolution of the Chief Justices’ Conference, several State Governments have
agreed to this shifting of allocations within the budget provided an officer of
the Court (not a Judge) appears before the legislative committee. Further, in some States for every unit of
expenditure (say) above Rs.10,000/-, a further approval of the executive is
necessary, even though the expense is within the budget for that item. Registrars keep shuttling between the High
Court and Secretariat of Government.
8.12 While the control of the staff and
Judicial officers is within the power of the Indian Judiciary, their cadre
strength cannot be enhanced under Article 146 and Article 229 inasmuch as such
increase has financial implications.
All such increases have to go for the governmental approval as per the
rules made in this behalf. Rules cannot
be made to remove these financial restrictions (see Article 146 and 229). Again establishment of new Courts involves
expenditure for acquiring land for the constructions of buildings, and
consequently the expansion programmes have to be submitted to the executive.
8.13 While it is true that the Judiciary cannot
expect an undue share of the finances as compared to certain other important
items of governmental expenditure having higher priorities, the fact remains
that the Judiciary has not received – in the last 50 years – even a reasonable
proportion of what was due to it.
8.14 In other words, while the matters relating
to appointment, disciplinary control and supervision of the officers and staff
of the Courts are in better shape and are directly under the control of the
Judiciary, the expansion in strength of officers or staff and certain service
conditions of these personnel involving financial implications are not
exclusively within the purview of the High Courts. Whether it be long range planning or short range planning for
purposes of increasing the number of Courts, Judges and staff, - there is no
serious scientific planning done in consultation with the Judiciary. No policies are laid down by the
judiciary. Again, budgets are generally
based on usual recurring expenditure on the pattern of the previous year and
these budgets are also submitted to the Executive, pruned or cut down in size
and then placed before the legislature by a Minister. This is so both at the Central level and States level. It is this procedure based on total
executive control that has resulted in the acute shortage in the number of
Courts and Judges in the country.
Possible solutions for
the above problems will be discussed in Chapter XI.
CHAPTER IX
PLANNING FOR COURTS
9. One of the best books on Court Planning
and Management is the ‘Handbook of Court Administration and Management’ by Steven W. Hays and Cole Blease Graham Jr.
(1993). The book contains 25 chapters
contributed by leading Jurists on Planning and by Court Management
experts. Each chapter gives reference
to a very large number of books, articles and committee reports on Court
Planning and Administration. The book
also contains the historical development of Court Planning initiated in the USA
in the last thirty years. So is the
book by Russel R. Wheeler & Howard R. Whitcomb ‘Judicial Administration,
Text and Readings’, (1971) which is quoted in almost all works on Court
Administration.
9.1 It appears that the movement towards
court restructuring and management was started by Roscoe Pound in his 1906
keynote address to the American Bar Association (ABA : Pound, 1937 a). He criticized ‘the general complacency of
the established legal profession’
He condemned the
fragmented court structures, duplication through concurrent jurisdictions, and
waste of Judicial resources. He
emphasized an improved, unified court structure along with administrative
simplicity, flexibility, and responsibility.
Several reports were prepared by others. In 1922, the Conference of Senior Circuit Judges (later Judicial
Conference of US) was established by the State to deal with all these
matters. The first Court administrator
came in 1947. Meanwhile in 1939, as the
Administrative Office of US was created in 1939, a separate bureaucracy to work
under the Judicial Conference was set up.
In 1940 Roscoe Pound published ‘Principles and Culture of a Modern
Unified Court Organisation’. In 1949,
Minimum Standard of Judicial Administration were prepared by the ABA. In
1952, the Institute of Judicial Administration was established at New York
University Law School. The National
College for State Judiciary was founded in the sixties. In 1960, the National Association of Trial
Court Administrators and National Association for Court Administrators were
established.
9.2 In 1967, came the “Task Force Report: On
the Court” by the Presidents’ Commission on Law Enforcement and the
Administration of Justice.
9.3 In 1967, under the leadership of Chief
Justice Warren Burger, the ‘Federal Judicial Centre’ was started at Washington,
sponsored by the Judicial Conference, a research facility for the Judiciary.
9.4 Due to the untiring efforts of Chief
Justice Warren Burger, the Institute of Court Management – which gives a degree
in Master of Judicial Management (MJA) – was started in 1970. The Institute publishes the ‘Justice System
Manual’. In 1971, the National Centre
for State Courts was established at Williamsburg, Virginia. It publishes
the ‘State Court Journal’, a professionally oriented compendium of court
management developments nationwide. The
National Centre for State Trial Courts was created in 1971 by the National
Conference of the Judiciary in Williamsburg.
Standards relating for the Court Administration were published by ABA in
1974 and 1983.
9.5 Planning and future problems began to
receive more attention in the US on the last 30 years. Finally, the 1990 Conference of State Courts
set afresh agenda for the Courts.
Planning for Courts is done by the method called POSDCORB: Planning,
Organising, Staffing, Directing, Coordinating, Reporting and Budgeting.
9.6 In Hay’s book, Chapter 24, ‘Planning for
Court Management’ by Theodore J. Fetter (p. 483), the subject of Court Planning
is discussed in detail. It is said:
‘Court planning retains
at least 4 vital uses. First planning
can guide decision about budgeting and allocation of resources. Second, planning can help to inform Court
managers about the performance of individual units or individuals. Third,
planning can be a mechanism by which all Judges and staff can share the same
sense of the entire organization and its goals. Fourth, Planning can assist in responding to individual issues as
they arise.’
9.7 Budget and Resource Planning require us
to think of ‘what does the Court seek to accomplish in the next (say) 5 years
or in this year? What is the most
important need to be addressed? In
times of cut back, what activities have to be curtailed? If the resources need to be concentrated in
just a few essential tasks, what should those our priorities?
9.8 We have to estimate the annual increase
in the filing of cases in trial court or in the appellate courts over the last
5 years. Using statistical projection
techniques, it is possible to predict the increase in the case load for the
immediate future. If such a prediction
is possible, then we can find out the Courts in which the increase will show up
in the years to come and at what percentage.
To meet the demand, we can estimate the required increase in Courts or
Judges or staff or in what best manner the existing Courts/Judges/Staff can be
reorganized. We can estimate how much
money is needed for increasing the
court services and whether the Government will be able to provide this money in
one or more years. We can also estimate
to what extent alternative dispute resolution systems can reduce the
cases? This is what is meant by
‘Planning for the Future’.
9.9 There are a number of articles on Long
Range Court Planning techniques published in (1993) 68 South California Law
Review. The various types of
statistical analysis, projections, graphs etc. which can lead macro as well
micro Planning are referred to.
9.10 Literature about management frequently
mentions ‘Planning – programming –
budgeting system. (PPBS). Planning precedes
budgeting. It determines the
organisations’ goals and sets the priorities.
Then programming examines the ways of achieving goals and
evaluates them before deciding which way to take. Finally budgeting decisions become largely secondary,
being the process of assuring that the resources are placed in the correct
areas.
9.11 Planning is a structured and conscious
process to define and revise goals, to assess and to determine strategies and
implementation methods. But if planning
for Courts is left to the Court Administrators leaving Judges merely to oversee
the work of such administrators, it can be of no help. Planning must be done by the personal
participation of Judges and they must be involved and share the planning
process. Just as the Director’s of
a company cannot stand aloof from the corporate management, Judges can neither
avoid nor keep aloof from the planning and court management processes.
9.12 The subject of ‘Court Finances and Unitary
Budgeting’ is dealt with (at p.110) by Geofrey C. Hazard Sr. Prof. Yale Law
School in R.Wheeler’s book above mentioned. He also discusses the Court cases
involving the ‘inherent power doctrine’ where American Courts started giving
directions for budgetary grants. The pros and cons of ‘inherent power’ doctrine
are also examined. Various systems of budgeting and their advantages are
discussed.
9.12.1 He says (P.123)
that the Courts’ oldest method of raising revenue – charging fees for their
services – is now substantially unavailable and unavailing. Clearly,
this is so in criminal cases – where accused are mostly without
money. Gideon vs. Wainwright 372
UDS 335 (1962): Griffin vs. Illinois 351 U.S. 12 (1956).
9.13 In our Constitution, clause (3) of article
146 provides that all administrative expenses of the Supreme Court including
salaries, allowances and pensions payable to, or in respect of the officers and
servants of the Court, shall be charged upon the Consolidated Fund of India and
any fees or other moneys taken by the Court shall form part of that Fund.”.
Similarly, clause (3) of article 229 provides that the
administrative expenses of a High Court, including all salaries, allowances and
pensions payable to or in respect of the officers and servants of the Court,
shall be charged upon the Consolidated Fund of the State, and any fees or other
moneys taken by the Court shall form part of that Fund.”.
9.14 In the first All India Judges Case,
Ranganath Misra, C.J. (see 1992 (1) SCC
119) gave directions that all Court fees that is collected must be made
available for the Courts expenditure.
Indian Scene and Plan:
9.15 A question has arisen whether the
Judiciary is included as a subject for the Plan by the Planning
Commission. It appears that, in a way,
it is included. In the Second All
India Judges Case [1993 (4) SCC 288], Sawant, J. observed (p.310):
“We now understand the
Judiciary has been included as a plan subject by the Planning Commission.”
9.15.1 But the question
is in what manner? Judges have not been
involved by the Planning Commission in any policy planning for the
Judiciary. There is no exclusive grant
by the Centre for Court expenditure.
Neither has the Finance Commission gone into this subject at any
time. All that we have is an
insignificant ‘Centrally Sponsored Scheme’ for Courts prepared by the
Planning Commission which allots some monies for each State on population
basis. There is no understanding or
application of mind to the actual needs of the Courts in various States or in
metropolitan towns like Bombay, Delhi, Calcutta and Madras etc., nor to the
needs of specific types of Courts – like criminal courts where thousands of
cases are pending. The Planning
Commission has to consult the Judiciary.
It must take into account the large number of parameters which should be
the basis for distribution of monies among States. Before that, it must set apart a large fund for distribution for
the Judiciary. Expenditure shows that
the monies allotted under the present central scheme when distributed to
various Districts in a State it comes down to a few thousands in some
Districts. In fact if a big District
Court Complex in a single District is taken up in an year, the entirety of the
funds allotted to the State get exhausted.
9.15.2 Further, the
present scheme has become nothing but an eye-wash for it requires the States to
provide a matching grant, or else the central grant lapses. Most States are not able to provide the
matching grants and the result is that the central grant lapses. To put it bluntly, the so called inclusion
of Judiciary as a plan subject is no inclusion at all as it is totally
unrealistic, unplanned and unrelated to the scenario at the grass-root level
and also at the level of the appellate and superior courts.
9.15.3 This has
necessitated the Supreme Court to give
directions to the Central and State Governments in providing various basic
facilities for the Judges and the Courts to the subordinate Judiciary in the
public interest cases filed by the All India Judges Association. In the first case, Ranganath Misra, CJ observed:
[1992 (1) SCC 119 (p.135) that the State cannot plead financial stringency for
providing certain minimum standards required.
His Lordship observed:
“The efficient
functioning of the Rule of law under the aegis of which our democratic society
can thrive, requires an efficient, strong and enlightened Judiciary. And to have it that way, the Nation has
to pay the price”.
In the second case,
[1993 (4) SCC 288], Swant, J. also rejected (p.305) the pleas of financial
stringency as follows:
“The alleged financial
burden that would be thrown on the State exchequer on account of….is
negligible, considering the enormous advantage that the administration of
Justice and society would derive….”
As Rajeev Dhawan pointed
out in his recent article ‘The Least
Expensive Branch’ (Hindi, 20.11.1998), we are living in times when each
Member of Parliament has been given one crore of Rupees for use in his
constituency and only it appears that government has no money only for the
Courts.
Fast Track Courts
9.16 Recently, it appears that pursuant to certain
observations in State of U.P. vs. Upadhyaya, a PIL pending in the
Supreme Court, a sum of Rs.502 crores were released for fast track courts where
retired Judges are being employed to clear backlog of old cases, on a
contractual-tenure basis. Problems such
as dearth of retired Judges of the sub-ordinate judiciary who are willing to
accept the cases or willing to work outside the places where they have settled,
accommodation for the Courts/Judges, infrastructure etc. have surfaced. Above all, the question of disciplinary
jurisdiction of such contractual appointees has also been raised.
9.17 Coming to figures of Judge-population
ratio, the conditions reflect a pathetic situation and total governmental apathy. The Law Commission in its 120th
Report on ‘Management and Planning in Judiciary’: A Blue Print’ (1987) stated
as follows:
“the State should
immediately increase the present ratio from 10.5 Judges per million of Indian
population to at least 50 Judges per million of Indian Population within the next five years. It
was further recommended that by the year 2000, India should command at least
107 Judges per million of Indian population.”
This
has not happened. Meanwhile the population is galloping and the Courts and
Judges do not increase in numbers. The
above views were reiterated by the Law Commission in its 127th
Report 1988 (p.12).
9.17.1 Recently, the
Chief Justice of India, Justice A.S.Anand, in his address at the Bar Council of
India (10th October, 1998) stated that
“in several European
Countries, the number of Judges per million varies from 90 to 100. However, in
India, it was only 11, which was rather disappointing.”.
9.18 Dr. Rajeev Dhawan in his article. ‘The
Least Expensive branch’ (Hindu, 20.11.1998). He says that –
“We need an
institutional mechanism to support the judiciary in its financial endeavours
which are concerned not just with courts, but with the whole process of Justice
– including legal aid and assistance.”
9.18.1
After referring to some figures in the increase of cases and nominal increase
in funds, he says -
“there is no real
procedure or basis of which the financial autonomy of the Judiciary can be
assured. What emerges is frightening
adhocism of a kind that is Humiliating and wholly contrary to the Interdependence of the judiciary, Law
Ministers have often resorted to bullying When they should have demurred. Many
Budgets are discussed at the Under-Secretary level with the Law Ministry Having
an edge. The Judges have no choice But to make their modest demands more
Models”.
CHAPTER X
COMPARATIVE REVIEW OF THE POSITION
ABROAD AND IN INDIA
10. Having referred to the Court systems in
various countries about Court Administration and Finances and to salaries
position in US, UK and Australia, it is time to give a birds eye view of
the picture so that we can know where
we stand in the global scene.
10.1 At the outset, we have emphasized that
‘institutional or collective independence of the Judiciary’ is a part of the
judicial independence and in fact a crucial part. It is as important as the
other aspects relating to judicial appointment, tenure, removal, or even
judicial independence in the adjudicatory
process. India is a party to important covenants. International bodies
under the UN and the International Commission of Jurists and LAWASIA have
passed numerous resolutions to which we are signatories. All these deal with
the need for financial independence of the judiciary.
10.2 Now the position in USA, Italy and Japan
appears to be the best for there is in those countries almost total
independence given to the judiciary in its finances and Court Administration.
In the USA, the Judicial Conference of the US is a statutory body for the
Federal Courts created in 1922 and it is the policy making body and it acts
through its various Committees including committees for long-range Planning,
Budgeting, space or Accommodation and Technology. It has its own bureaucracy –
under its control – the Administrative office of the Courts in the USA. Statute
vested the entire judicial administration in 1939 in this Administrative Office
under the control of the Judicial Conference after shifting it from the office
of the Attorney General. The staff and officers of the Courts are under the
control of Courts. Budget for the Federal Courts is prepared on the basis of
the policies of the Conference, the data prepared by the Administrative Office,
in consultation with the Courts. It normally
takes 18 months to prepare a budget. The Conference has to meet twice in one
year. The Administrative Office gives it two reports in advance before each
meeting. The budget proposals do not go to the Executive but are submitted
direct to the Congress. Judges in the Committees can appear, if requested,
before congressional Committees or the Congress. The budget asked for is
normally passed in full by Congress. The budget allotment enables the Judiciary
to use the amount in the best manner it thinks fit by shifting expenditure from
one head to another. The judiciary is wholly responsible for the budget. It has
to submit annual Reports to the Congress on its performance or plans for the
future. This part of the judicial
independence has reached a stage of perfection. But in the area of the Judges’
salaries, there are clear problems as these are not revised periodically to
keep pace with inflation. This is so in spite of the Ethics Act, 1989 which
requires inflation to be taken into account.
10.3 In England, as pointed out by the
Vice-Chancellor, Browne-Wilkinson in his article (see 1988 Public Law, P.44),
the position is quite the reverse of what it is in USA. Judges are not involved
in any policies or planning. The Court officers are integrated into the civil
service. The officers in the Lord-Chancellor’s office are also part of the
Executive. Judges are not consulted in the budget formulations. The matter is
under the exclusive control of the Lord Chancellor’s office. The Lord
Chancellor’s office prepares the budget. The budget is not directly submitted
to Parliament but is submitted through the Executive. There is no place for the
Judges in any of these matters. The Vice Chancellor has grave doubts whether
such a system is conducive to judicial independence. Lord Woolf in his recent
article (1998) Law Quarterly Review, p. 579) has not addressed himself to these
problems though he refers to the points raised by the Vice Chancellor.
According to him the Lord Chancellors, as of now, are able to do some ‘tight-rope
walking’ and are able to use their ‘clout’ in getting whatever they feel is the
requirement of the Judiciary. This has become possible in UK because the Lord
Chancellor heads the judiciary and is also a Member of the Cabinet and Speaker
of the House of Lords. Thus in the area of Court finances the Judges have no
say in UK. But in the matter of salaries, UK is far ahead of all countries.
With the setting up of the ‘Top Salaries Review Board’ for Judges, Permanent
Secretaries and others. The Advisory Group for Judiciary in that Board has
thought it fit to consider that Judges’ salaries must bear a reasonable
proportion to the salaries received in Industry and to the net income of
leaders of the Bar. Because of this approach, Judicial salaries which at one
time were below (and later equal to) those of the Permanent Secretaries have
now gone ahead of the salaries of Permanent Secretaries and also gone ahead of
inflation.
10.4 In Australia, atleast in the High Court,
the Federal Courts and Family Courts
- the control over the staff and financial budget is within the
Judiciary. But the budgets are presented to the Legislature by a Minister. The
Legislature makes a ‘single line’ appropriation and there is flexibility in
shifting the budget grants from one head to another. In all other courts, the staff and budgets are under executive
control. There the budget is an identifiable part of the budget of the Ministry
of Justice. Policies are not made in consultation with the Judiciary. However, salaries are increased according to
inflation and the matters can go before a Tribunal manned by a former Judge and
his decision is placed before the legislature for approval or deemed approval.
10.5 In Canada, except for the Supreme, Federal
and Tax Courts, the Court administration is part of the Attorney General’s
office and is not under the control of the Judiciary. All the Court
administrators are employed by the executive department. Budgets, staffing levels and personnel
policies are set according to standards of the Executive. The Attorney Generals are members of the
Cabinet in the States too. According to
the Canadian executive, the American system is not capable of being introduced
in Canada as, they say, there is no clear separation of powers. The
Courts have thus no say in policy matters.
10.6 In Germany, the Constitutional Court alone
draws its own budget and presents it directly to the legislature. In all other courts, there is no financial
autonomy. But curiously so far as Court
administration is concerned, the Judges have a dual role – one as Judges and
another as Court Officers, that is, as part of the executive. In their latter role as part of the
executive, they are under the control of the Ministers. On the financial side – except the Constitutional
Court – other Courts have no autonomy.
They cannot send budgets directly to Parliament. Budgets are presented by a Minister. But the allotment for a judiciary is a lump
sum and not item-wise. The allotment to
the individual courts is done by the
Ministry of Justice.
10.7 In France, there is no separation of
powers and the court budgets are part of the executive budget. The Minister of Justice is responsible for
the Court budget.
10.8 In Italy, things are totally in favour of
the Judiciary. The Judiciary recruits
the Judges staff and the public prosecutors.
Curiously, the several divisions of the Ministry of Justice are also
manned by the magistrates recruited by the Judiciary.
10.9 In Japan too, things are in favour of the
Judiciary. The Judicial administration
is in the hands of the Judicial Conference composed of Judges. It is a policy making body as in USA. The Judicial Conference is assisted by a
general secretariat of the Supreme Court and its Secretary-General and
supervisory personnel are all Judge-bureaucrats.
10.10 In China, though there is no separation of
powers, the Court administration staff is controlled by the Courts, though the
finances are determined by the Parliament.
10.11 There is a striking contrast between Germany
and Italy. While in Germany the Judges
have a dual role – treated as part of the executive – and in their latter role
are treated as part of the executive amenable to the control of the Minister,
the position in Italy is so different, the magistrates recruited by the
Judiciary man the Ministry of Justice and get all things done at the level of
the executive or in the legislature according to the Courts requirements.
10.12 In India, we have the advantage of the Court
officers and staff being under the complete control of the Judiciary from the
highest court to the lowest courts.
That way, our system is better than the one in UK and France. But the main problems are in regard to
policy-making and finances.
10.12.1 The Judges are not involved directly in any
policy making. All the Judges are not
involved in the preparation of the budget.
The Chief Justice of India and the Chief Justices of the Courts no doubt
prepare a budget with the help of their Registrars but these are routine
budgets based upon a notional increase of the figures of previous years. They are not based on any long range or
short range plans for the Judiciary.
The budgets are sent to the Executive and suffer serious cuts. The budget is so even at the State level.
10.12.2 The Chief Justices Conference is presided by
the Chief Justice of India. But this is
a non-statutory body with no teeth and though sometimes it lays down some
policies, it is customary for a Desk Officer or an Under Secretary to send a
single line letter to the Registrar General of the Supreme Court that
government is not accepting the recommendations.
10.12.3 There is neither
an independent judicial council or
conference with statutory status, nor an independent bureaucracy of court
administration who can prepare the budgets and who can independently spend the
lump sum allocation under various heads, subject to supervision by the Judges’
Council. The judiciary’s budget is part
of the executive budget.
10.12.4 The Judiciary,
as stated in Chapter IX relating to planning, is not involved in any planning
policies prepared by the Planning Commission at the Central level or the State
Planning Boards. The Finance
Commission does not also deal with the requirement of the Judiciary as an
Institution.
10.12.5 The unique
distinction of the Judicial offices held by Judges as Constitutional
functionaries – as opposed to Secretaries of Government – has been brought
about in the first and second All India Judges Cases referred to in
Chapter IX, 1992(1) SCC 119 and 1993(4)
SCC 288. It has been held, on a
thorough consideration of the nature of the offices, their work and mode of recruitment – particularly when lawyers give up a lucrative practice to
come to the District Court or High
Court – that the Judiciary stands on a different and higher footing
under the Constitutional scheme and cannot be equated with the Executive. The Top Salaries Board in UK has also
proceeded on that basis.
10.12.6 In the All
India Judges’ Case, it was held that the Judges salaries in the Subordinate
Courts have to be fixed by an independent Judicial Commission. Then the Government appointed the Jagannatha
Shetty Commission for the subordinate Judiciary. Its terms were extended to include the staff of the subordinate
courts too.
CHAPTER XI
INDIA – PROPOSALS FOR CONSTITUTIONAL
AMENDMENT AND/OR LEGISLATION
11. At the
outset, it is necessary to refer to the various problems that are confronting
the Judicial administration and then refer to the solutions. Then we shall refer to the Legislative
amendments necessary for implementing the solutions. Some of the problems that the judiciary in India is facing have
been earlier referred to in Chapter VIII.
11.1 In the
Constitution of India, in the Chapter on Union Judiciary (Chapter IV of Part V)
and in the Chapter on State Judiciary (Chapter V of Part VI), reference is made
to various aspects of the judicial set up in the country. We shall here refer only to one special
aspect of these provisions. The Chief
Justice of India and the Chief Justices of the State High Courts have been
empowered to make rules (see Article 146 and Article 229) in regard to the
service conditions, salaries and allowances of the officers and servants of the
respective courts but if any such revision
has any impact on the finances of Government, the rules require the
approval of the President or the Governor of a State, as the case may be. The need to have some executive control so
far as these items are concerned was emphasized by Sir Alladi Krishnaswami Iyer
in the debates in the Constituent Assembly.
11.2 The same
difficulties are faced in regard to the creation of posts by the Chief Justice
of India and the Chief Justice of the High Courts. Further, Rules permit creation of extra posts only in regard to
particular categories and not in regard to all categories though there may be
need at those levels.
11.3 Then there is
an existing problem regarding powers of the Chief Justice of India and the
Chief Justices of the High Court relating to appropriation and re-appropriation
of expenditure under the different heads in the budget as allotted. Only the Chief Justice of India and the
Chief Justices of one or two States have been allowed under Executive Orders of
the respective Governments to re-appropriate amounts allocated under one head
in the budget to another. This aspect
has been repeatedly taken up at the conferences of the Chief Justices. For example, if within the total budgetary
allocation, the State PWD is not able to spend monies allocated under one head,
there is no good reason as to why the Chief Justice should not be allowed to
utilize the amount for other pressing needs such as for the library of the
Court or for stationary or for the computer division of the Court. The Union Government has recently requested
all the State Governments to remove this restriction and follow the same
procedure which is applied in the case of the Chief Justice of India and permit
re-appropriation at the discretion of the Chief Justices of the High Courts. But a query has been raised in the States as
to whether the Chief Justice of the High Court would be prepared to appear
before the Public Accounts Committee of the State Legislature at its meetings,
if called. This aspect has been
examined and it has been pointed out that to cover like situations, the
Speakers of the Legislatures have made rules exempting Ministers from appearing
before the Committees of the Legislature and that a similar procedure has to be
adopted in the case of the Chief Justices. As in the case of Ministers, senior
officers of the High Court can appear and answer any questions before the
Committee. It has also been pointed out
to the State Governments that even in the absence of a like rule made by the
Speakers, the same procedure as applied to Ministers has to be followed in the
case of the Chief Justices of the High Courts, having regard to their
constitutional status. Obviously, the above query postpones the implementation
of the request made by the Union Government to the States.
11.4 Yet another
problem is that in respect of monies allocated within the budget, certain
financial procedures require that whenever expenditure above a particular
amount (sometimes as low as Rs. 10,000/-) has to be incurred only upon fresh
sanction from the Secretariat. This is
indeed an unnecessary bottleneck created to make the Registrars of the High
Courts run to the Secretariat on each of these occasions.
11.5 The main
difficulty is about proper budget allocation for the Judiciary. We may state that the Planning Commission
has not been making any separate funds available for the Judiciary in the last
fifty years, though (as pointed in Chapter VIII), the Supreme Court was
informed that there would be an allocation in the Plan. Such allocation in the Plan has not been
made except by way of (i) the Centrally sponsored scheme which requires the
State to make matching grants and (ii) the recent allocation of Rs. 500 crores
and odd for Fast Track Courts. So far
as the Centrally sponsored scheme is concerned, as it requires a matching grant
from the States, it has not been fully utilized in several States because the
States are not able to make adequate matching grants. So far as the Fast Track Courts scheme is concerned, this type of
a grant after fifty years, for Courts which are to last only for a temporary
period, does not meet the problem.
Appointing retired judicial officers on contract basis can even create
problems if they are not within the disciplinary jurisdiction of the High
Courts under the existing rules. This
temporary measure should be replaced by permanent and lasting solutions.
Planning Commission and Finance Commission to allocate
adequate funds for the Judiciary
11.6 The proper
thing for each State is to first require separate allocation of funds by the
Planning Commission and the Finance Commission for the purposes of the State
judiciary and once this is done, most of the problems will be solved.
11.7 There is an
important reason as to why provision is to be made in the State plan by the
Planning Commission and by the Finance Commission. The crucial point here is that the Subordinate Courts and the
High Courts have been administering not only the laws made by the State
Legislatures but also the laws made by Parliament under various Entries in List
I and List III. In fact, laws made
under the Concurrent List in the Seventh Schedule (List III) are the most
common statutes in use in the Courts everyday as they concern the civil and
criminal administration of justice.
These laws in the Concurrent List include the Indian Penal Code, the
Civil and Criminal Procedure Codes, laws relating to Marriage and Divorce,
Transfer of Property, Registration, Contracts, Actionable Wrongs, Bankruptcy
and Insolvency, Trusts, Evidence, Forests, Adulteration of Food Stuffs, Drugs
and Poison, Trade Unions, Education, Charities, Trade and Commerce, Factories,
Electricity, Acquisition of Property and Requisitioning etc., - the list is
unending. Then there is again a long list
of Central statutes in List I. All these
laws create a large number of rights and offences which are being administered
by the subordinate Courts which are being run at the expense of the State
Governments.
11.8 The Central
Government cannot therefore throw the entire burden of establishing the
subordinate Courts and maintaining the subordinate judiciary on the State
Government. It is true that under Article
247, the Central Government has powers to establish additional Courts
for purposes of the litigation arising in respect of subjects in List I of the
Seventh Schedule. But, the number of
Courts established at the level of the Subordinate Judiciary by the
Central Government in exercise of its power under Article 247 of the Constitution even for purposes of
cases arising out of subjects in List I, is almost negligible. It appears on the whole that there is a
concurrent obligation on the Central Government also. Therefore, the Planning
Commission and the Finance Commission must allocate sufficient funds from
national resources to meet the demands of the State judiciary in each of the
States. These monies must come through
the Planning Commission and the Finance Commission.
11.9 In fact, in
Latin American countries, it may be noted, that there is a ‘constitutional
requirement’ of allocation of a fixed percentage of the country’s total budget
to the judiciary. The most generous
provisions are in Costa Rica, which grants the judiciary not less than 6% of
the nation’s ordinary annual receipts, excluding loans and grants. (see
Article 177 of the Constitutional
Practice de La Republica de Costa Rica).
While Hondurus allocates at least three per cent and Peru 2%, Gautamala and Panama allocate 2% of
the nation’s ordinary annual receipts (see Bulletin of the Centre for the
Independence of Judges and Lawyers, No. 122, October 1988, page 18 in an
article by Kutt S. Rosehn on ‘The Protection of Judicial Independence in Latin
America’.).
Proposals for Constitutional or Statutory backup for
Judicial Council and Administrative Offices in each State and at the Central
Level
11.10 In the earlier chapters, we have seen how in
several countries, particularly in the US, Germany and Japan the problems of
the judiciary are tackled by establishing a separate internal machinery for the
purposes of planning, budgeting and implementation of the needs of the
Judiciary. Thus the Judiciary is
associated effectively in the planning, budgeting and the machinery for
implementation. As Chief Justice Taft
pointed out (see Chapter III), the Judges who administer the laws are best
suited for planning the requirements of the judiciary and they must have the
main say on all aspects of judicial administration.
11.11 The first step therefore is to create,
under a law to be made by Parliament, a Judicial Council for India and
Judicial Administrative Office of India and then create separate Judicial
Councils and administrative offices at the State levels.
11.12 The National Judicial Council at the Central
level should consist of the Chief Justice of India and two Judges to be
nominated by him from the Supreme Court and will have to include all the Chief
Justices of the High Courts. They have
to meet twice in a year and consider various aspects of judicial administration
relevant to the whole country. The
Administrative Office of the National Judicial Council will help it in various
respects. It can gather national
statistics from the Administrative offices attached to the State Judicial
Councils.
11.12.1
So far as the “staff and the budgetary needs of the Supreme Court” are
concerned, it may not be proper to associate the National Judicial Council with
it. As of now, these aspects are, under Article 146(3), within the exclusive administrative jurisdiction of the Chief
Justice of India and he alone can take decisions on these matters. The administrative powers of the Chief
Justice of India cannot be diluted by making those powers subordinate to the
views of the National Judicial Council.
No doubt, the Chief Justice of India can take the help of the
Administrative Office of the National Judicial Council, if need be. The Administrative office at the national
level can help in laying down general and broad guidelines applicable for the
whole country so that there can be uniformity.
11.12.2
The Judicial Council at the Central level can go into the question of the
uniformity in the service conditions of the subordinate judiciary in the whole
country. It can go into various aspects of the over all needs of the Judiciary
in the country from the statistics as gathered by its Administrative Office
through the State Administrative Offices working under the State Judicial
Council. It can make general
recommendations to the Central and State Governments and to the Planning Commission
and Finance Commission after gathering statistics from each State Judicial
Council about the needs of the High Courts and the subordinate Judiciary in
each State. But it shall not have any
administrative control over the State Judicial Councils or the Administrative
offices of the State Judicial Councils.
11.12.3
The personnel of the Administrative Office of the National Judicial Council
must be put on a strong pedestal at the Central level and also at the State
Level and must consist of direct recruits recruited at a middle level who have
a degree in Court administration from the proposed Institute of Court
Management coupled with an LL.B. degree. There should be promotee officers too
drawn from the cadres of Judicial officers of the subordinate judiciary at
various levels and from the staff of the subordinate judiciary. They must be put in different cadres with
promotional avenues. These
Administrative Offices at the Central and State levels must work under the
concerned Judicial Council of the State and assist them in planning, budgeting
and implementation. The Administrative
office at the Central level shall not have administrative control over the
State Administrative Offices.
11.13
Four institutions to be under the general control of the National Judicial
Council
(a) An Institute of Court Management;
11.13.1
Today, there is a great need to put the management systems in the Courts on
a professional basis. A
Post-Graduate Degree Course in Court Administration is to be started for those
who are possessing degrees in Law. They
must be eligible for being recruited into the staff of the Subordinate Courts
or High Court or the Supreme Court or even to the various quasi-Judicial
tribunals. The direct recruitment could
be at a level of two stages from the lowest level and along with other
departmental promotees, unified cadres can be formed. The lower staff could also be given training in the
Institute. These graduates can also be
recruited into the Administrative offices attached to the Judicial Councils at
the Central level and State levels.
The
Institute must be under the control of the National Judicial Council.
(b) The
National Judicial Academy, Bhopal to be made a Commonwealth Law Centre
11.13.2
The National Judicial Academy was built at Bhopal a few years ago with an
expenditure more than Rs. 70 crores.
The Academy must be converted into a Commonwealth Law
Academy with faculty from India and other Commonwealth countries and it could
conduct Research in Law, publish books and journals and also have a wing
wherein Judicial Officers from all over the country could come for courses on
Continuing Legal Education by itself and in collaboration with State Judicial
Academies. The Institute could also be
brought within the purview of the National Judicial Council.
(c) The Indian Law Institute, New Delhi
11.13.3
The Indian Law Institute must be made a deemed university with a separate
campus where diplomas, degrees and PG degrees in subjects like Human Rights,
Environment, Intellectual Property, International Law, Comparative
Constitutional Law, Administrative Law etc. could be awarded. It should also be under the supervision of
the National Judicial Council.
(d) International Legal Data Centre, New
Delhi
11.13.4 There should be established at Delhi, an
International Legal Data Centre, with internet facilities for the use of the
Supreme Court, High Courts all over the country, the Subordinate Courts, all
Bar Associations, Law Universities, affiliated Law Colleges, individual lawyers
and faculty members and law students.
The Centre should have information about all legal
literature,- law books and law journals available all over the world and in
India, including books and journals from the Supreme Court Library and the
Indian Law Institute and those available in other libraries in India, in the
Universities and the High Courts.
Subject wise category of information is to be furnished.
This Data Centre should also be under the control of
the National Judicial Council.
II. State
Judicial Councils and Administrative Offices
11.14 Having
regard to the fact that the State High Courts are independent constitutional
Courts which are not administratively subordinate to the Supreme Court,
it must be ensured that the National Judicial Council has no administrative
control over the Judicial Council of the State. Nor can Administrative office of the National Judicial Council
have any administrative control over the Administrative offices in the States. The Administrative Offices in the States
must not be under the control of the State Governments but must be under
the control of the respective Judicial Councils.
11.14.1 The State Judicial Council must consist of
the Chief Justice of the High Court, four Judges of the High Court nominated by
him, the Registrar General of the High Court and three senior District Judges
nominated by the Chief Justice. They
will be concerned with the policy-making, planning, budgets and implementation
so far as the Subordinate Courts are concerned.
11.14.2 The State Judicial Council is not to
interfere with the administration of the High Court which is within the
exclusive control of the Chief Justice.
Nor can it impinge on the powers of the High Court under article 235 of
the Constitution of India.
11.14.3 In case there are any such overlapping areas,
the State Judicial Council can make its recommendations to the High Court for
its due consideration.
11.14.4 The Judicial Council at the State level shall
have to go into the long range plans, budgets, space and accommodation
requirements and suggest steps for clearing backlogs, etc. It must also estimate the number of civil or
criminal cases that may be added to the dockets of the High Court and the
subordinate Courts every year by virtue of new laws passed under List I and
List III of the Seventh Schedule by the Parliament and under List II and List
III by the State legislatures.
11.14.5
The relevant committees which every State Judicial Conference must have, as in
USA are as follows:
(i)
Committee on Budget
(ii)
Committee on Court
Management
(iii)
Committee on
Information and Technology
(iv)
Committee on Security,
Space and Accommodation
(v)
Committee on Long
Range Planning
(vi)
Committee on Financial
Disclosures
(vii)
Committee on National
and International Judicial Relations
(viii)
Committee on the Subordinate
Judiciary
(ix)
Committee on Judicial
Resources.
11.15 This
subject is most crucial to the autonomy and the financial support for the
Judiciary.
(a) So far as the budget for the Supreme
Court of India is concerned, it is not felt necessary to make any special
provision in this Paper.
(b) So far as the expenditure required for
the National Judicial Council is concerned, the same has to be prepared by the
said Council with the help of its Administrative office and the budget will be
finally settled in consultation with the Central Government. The budget estimates so settled shall, by
way of a convention to be followed, pushed through the Parliament
without any downward revision.
(c) So far as the budget estimates for the
High Court are concerned, the matter is within the exclusive purview of the
Chief Justice of the High Court and it will, therefore, be not within the
jurisdiction of the State Judicial Council.
(d) So far as the budget estimates of the
Subordinate Judiciary are concerned, they have to be prepared by the State
Judicial Council.
11.15.1 The
State Judicial Council, as already stated, will go into the pending of cases,
civil and criminal and the number of Courts and judicial officers and staff
available. It shall keep the average
disposal of a judicial officer in mind and shall estimate the number of
Courts/Judicial Officers/staff and also the infrastructure like buildings for
Courts, buildings for judicial officers, furniture, telephones, fax, computers,
stationery, conveyance, etc. that are necessary. A Plan will be prepared for the subordinate Courts in each State
for implementation progressively. The
Judicial Council shall also take into account the new legislations passed by
the Parliament and the State Legislature and estimate how many new civil or
criminal cases may get added to its dockets year after year. On that basis, the State Judicial Council,
with the help of its Administrative Office,
must prepare the annual budget estimates for the subordinate Judiciary.
11.15.2 Formulation of procedures for Budget of the
State Judiciary, is very important. The
Commission do not propose that as in the USA, the budget should be directly
presented to the State Legislature. This is because the separation of powers
between the Legislature, Executive and the Judiciary in our Constitution is not
as distinct as it is in the USA. The
following procedure is recommended. The
State Judicial Council must prepare the budget estimates and must first submit the
said budget estimates to the State Executive.
The State Executive should, if it is not inclined to approve the budget
proposals of the High Court, as presented, have an effective consultation with
the State Judicial Council or with a committee of Judges and officers nominated
by the State Judicial Council and then both of them will have to arrive at a
consensus as to the budgetary needs of the State Judiciary. Once the State Executive and the State
Judicial Council thus finalise the budget estimates in the above manner, as a
matter of convention there should be no downward revision in the
legislature. Again, once the
budget is passed, the entire amount is to be kept under the control of the
State Judicial Council and there should be no need to seek permission of the
Executive for re-appropriation. Within
the budgetary allotments, the State Judicial Council must be able to spend the
monies through the State Administrative Office. The expenditure will have to be scrutinized by the Financial
Adviser drawn from the Office of the Comptroller and Auditor General of India.
11.15.3 If there is to be a convention of the
agreed budget to be accepted by the State Legislature without revision, then
there may be no need to include the budget estimates of the Subordinate
Judiciary in the Consolidated Fund of the State by a State Law under
Article 202(3)(f). The question of making law under
Article 202(3)(f) may be kept as the
last option if any such need arises over a period of time.
11.15.4 The
approach of the State Government to the Judicial budget must be based on the
following considerations. Having regard
to the duty of the State to uphold the rule of law and to maintain peace, law
and order in society, and the duty to render speedy justice, both Civil and
Criminal, and in view of the various facets of ‘life’ falling under
Article 21 of the Constitution of India
as interpreted by the Supreme Court of India, the Central and State Governments
must put the financial requirements of the Judiciary on par with
other items of top priority like its development schemes. It must be realized that every other
development activity of the State will depend upon the health and well being of
the citizens and if adequate allocation is not made for upholding the rule of
law, that is bound to affect every other sphere of activity adversely. A pragmatic approach is thus needed on the
part of the Executive while dealing with the budgetary proposals that emanate
from the State Judicial Council. The
attitude of the Executive must be positive and fair and should not be one
always, as a matter of course, to cut down the legitimate demands of the
judiciary. It is no doubt true that the
State has various other pressing demands on its revenues but the point here is
that the requirements of the judiciary must be kept almost at the same level as
the other most pressing demands.
11.15.5 The procedure indicated above in regard to budgets
appears to be similar to the one in Japan (see Chapter VII).
IV. Legislation
necessary to constitute the Judicial Council and the Administrative Offices and
the Budget procedure:
11.16 Several Constitutional provisions, as already stated, deal with the Union
and State Judiciary, but obviously there is little scope under the existing
provisions for creation of Judicial Councils and Administrative Offices or for
laying down budgetary procedures.
Necessarily new provisions have now to be made. Question is (i) whether the Constitution is
to be amended, if so, in what manner or (ii) whether fresh legislation can be
made under any of the Lists.
11.16.1 We
do not think that as of now, any amendment to the Constitution need be
made. If a law is made by Parliament
under Entry 11A in the Concurrent List that will be sufficient for the present.
Entry 11A of List III reads as follows:
“Entry 11A: Administration of
Justice: Constitution and organization
of all Courts, except the Supreme Court and the High Courts.”
11.16.2 Under the first part of that Entry, a law
can now be made by Parliament both for constituting the National Judicial
Council and the State Judicial Council, while under the second part, Parliament
can establish additional Courts also, in addition to the Courts it can
establish under Article 247 for purposes of Entries in List I.
11.16.3 Parliament can also establish the
respective Administrative Offices for the National Judicial Council and for the
various State Judicial Councils.
Parliament can vest the said Judicial Councils with the powers already
referred to and delineate their functions as stated above. The manner in which the budget estimates may
be prepared by the National Judicial Council and the State Judicial Council can
be elucidated. It may then be stated
that the budget estimates so prepared will be discussed with the Union
Executive or the State Executive, as the case may be, and a consensus will be
arrived at keeping the needs of the Judiciary on par with other high priority
items. The budget estimates as so settled will be placed before the Parliament
or the State Legislatures, as the case may be.
To that extent, there must be legislation.
11.16.4 The procedure, thereafter, is to be based
on a convention to be followed. The
Executive will place the Budget estimates as so finalized before the State
Legislature and will see that it is passed in the Legislature without any
downward revision. This part of the
convention can not obviously be part of the proposed legislation.
I.
(1) Judiciary must be included
separately in the Plan by the Planning Commission and separate allotment be
made by the Planning Commission and the Finance Commission.
(2)
The National Judicial Council and
the State Judicial Councils and their respective Administrative Offices are to
be established. The membership of the Judicial Council must be as stated in
this Chapter.
The National Judicial Council will deal generally
with the overall needs of the Judiciary.
The State Judicial Council will deal with the policy making, budget and
implementation of the same, so far as the Subordinate Judiciary is concerned.
(3) Budgets are to be prepared by the
National Judicial Council or the State Judicial Council initially and are to be
presented to the Executive and finalized at that stage, by mutual effective
consultation, keeping in mind that expenditure on the demands of the Judiciary
are no less important than other development expenditure and thereafter the
budget as finally settled, is to be presented in Parliament or the State
Legislature, as the case may be. A convention
is to be made that the budget estimates as so finalized shall be pushed through
Parliament or the State Legislatures without any downward revision.
(4) Financial Advisers from Comptroller and
Auditor-General of India’s office to monitor expenditure and keep a check and
take suitable action according to normal procedures, in their annual reports.
(5) A convention is to be accepted that
officers nominated by the Judicial Council can appear before the Public
Accounts Committee. If necessary, the relevant rules made by the
Speaker/Chairman of the Legislatures, may be so amended.
(6)
Within the budget, the Judicial
Council must have full freedom for re-appropriation. This should be made clear in the statute. Again the Registrar of the High Court need
not run to the Secretariat for obtaining sanction whenever the expenditure
crosses a particular amount, as is the procedure currently.
(7)
A National Institute of
Court Management to be established to confer degrees and to train Court staff
and Judicial Officers in Court management.
(8)
A National Data Centre
on Legal Information to be established at New Delhi.
(9)
National Judiciary
Academy, Bhopal to be converted into a Commonwealth Law Centre - bye-laws to be
changed. It shall deal with continuing
legal education of the judiciary and can collaborate with the State Judicial
Academies.
(10) Indian Law Institute, New Delhi, to be
made an autonomous deemed
university with a separate campus to impart legal education in
specialized branches and for conducting research.
(11) All these four institutions to be under
the overall control of the National Judicial Council.
II.
(1) Parliamentary legislation to be straightway made,
establishing the Judicial Councils at the national and State levels and the
Administrative Offices referring to the autonomy and financial support for the
Judiciary, as enunciated in this Chapter.
(2) The
said legislation will lay down the following procedure for the Budgets:
(a) Budget
estimates to be prepared for the National Judicial Council and the State
Judicial Council (the latter deals with the expenditure for the Subordinate
Judiciary) by the said Judicial Council with the help of its Administrative
Office and then it shall be finalized in consultation with the Executive. The budgets as finalized will be placed
before Parliament or the State Legislatures, as the case may be.
(b) A
convention is to be established by the Executive at the Central and State
levels that the budgets as finalized with the Executive will be pushed through
Parliament or the State Legislatures, as the case may be, without any downward
revision.
QUESTIONNAIRE
ON
FINANCIAL AUTONOMY OF THE INDIAN
JUDICIARY
1. Today, the judiciary in India is blamed
for the huge backlog of cases. There is
a dearth of courts and judges and buildings for both judges and staff. In several cases, even minimum facilities
are not available. What, according to you, is the main reason for all these
shortcomings?
|
Planning |
|
Finances |
|
Both Planning and Finances |
|
2. (a) The
Judges who administer the laws are best suited for planning the requirements of
the judiciary and that they must have the main say on all aspects of judicial
administration. Hence, do you consider it necessary that a personal
participation of the judges and their involvement in the planning process will
bring considerable improvement in the judicial administration?
|
Yes |
|
No |
|
|
(b) If
not, what specific measures are required to be taken to improve the situation?
|
(Not more than 200 words)
3. (a) Do
you consider that, for independent and efficient functioning of judiciary, it
should have full financial autonomy including preparation of its budget?
|
Yes |
|
No |
|
|
(b)
If not, the extent of autonomy may please be suggested:-
|
(Not more than 200 words)
(c) Do
you agree to the suggestion that the expenditure of the Supreme Court of India
should be charged on the Consolidated Fund of India and the expenditure of the
High Courts and subordinate judiciary should be charged on the Consolidated
Fund of the concerned State/States?
|
Yes |
|
No |
|
|
4. It may be noticed that in USA, the
budget estimates of the entire federal judiciary as prepared by the
Administrative Office and as approved by the Judicial Conference of the US are
to be included under the head of “Estimates for the Supreme Court” without
revision by the Bureau of the Budget (with its recommendations) and the
President submits the said estimate, without revision, before the
Congress. The budget estimate of the
Federal judiciary are treated on par with budget estimate of the Legislative
Branch and the President does not revise the estimates. The Congress does not make any cut in the
estimate. Do you subscribe to the view
that a similar system should be introduced in India?
|
Yes |
|
No |
|
|
5. (a) The
Consultation Paper suggests for consideration the question of enactment of a
Parliamentary legislation for constitution of a Judicial Council for India and
Judicial Administrative Office of India and then create separate judicial
councils and administrative offices at the State level. Do you subscribe to this proposition?
|
Yes |
|
No |
|
|
(b)
If yes, please indicate the details of your suggestion:-
|
(Not more than 200 words)
(c) Do
you agree to the suggestion that the management system in the Courts should be
put on a professional basis, i.e. utilizing services of persons having special
qualifications in court management system?
|
Yes |
|
No |
|
|
(d) Do you subscribe to the view that the
Administrative Office of the National Judicial Council should have direct
recruit law graduates at the middle level who have a degree in Court
Administration?
|
Yes |
|
No |
|
|
6. The Paper suggests that the National
Judicial Academy, Bhopal should be made a Commonwealth Law Centre with faculty
from India and other Commonwealth countries so as to enable it to conduct
research in Law, publish journals, etc.
Do you subscribe to this suggestion?
|
Yes |
|
No |
|
|
7. The Paper suggests that the Indian Law
Institute, New Delhi, should be declared as a deemed University with a separate
campus where diplomas, degrees and post-graduate degrees in subjects like Human
Rights, Environment, Intellectual Property, etc. could be given. Do you agree to this suggestion?
|
Yes |
|
No |
|
|
8. The Paper suggests for establishment of
an International Legal Data Centre at Delhi with internet facility for the use
of the Supreme Court, the High Courts and the subordinate courts in the
country, Bar Associations, Law Universities, etc. Do you agree to this
suggestion?
|
Yes |
|
No |
|
|
9. (a) The Paper suggests that the National
Judicial Academy, Bhopal, the Indian Law Institute, New Delhi, and the proposed
International Legal Data Centre, should be under the supervision and purview of
the proposed National Judicial Council. Do you agree to this suggestion?
|
Yes |
|
No |
|
|
(b) If not, please give briefly your
suggestions in this regard:-
|
(Not more than 200 words)
10. (a)
The Paper suggests that the
proposed Judicial Council at the State level should be empowered to go into
plans, budgets, court room facilities, accommodation requirements, steps
required to take clearing of backlog of cases, etc.
|
Yes |
|
No |
|
|
(b) Please indicate your suggestions, if
any, in this regard:-
|
(Not more than 200 words)
11. Do
you consider it necessary to amend the Constitution for making specific entry
therein for establishment of Judicial Council and the administrative offices
and new budget procedure for courts?
|
Yes |
|
No |
|
|
12. Do
you consider that the judicial councils and the administrative offices and for
laying down new budgetary procedures for courts, necessary legislation may be
placed within the scope of the existing entries in the Seventh Schedule to the
Constitution?
|
Yes |
|
No |
|
|
13. Do
you wish to make any other suggestion on financial autonomy of the Indian
Judiciary? If so, please give details:-
|
(Not more than 200 words)