SUBHASH SHARMA AND OTHERS v. UNION OF INDIA

Citation: [1990] SUPP. 2 S.C.R. 433

Court: Supreme Court of India

Bench: RANGANATH MISRA, M.N. VENKATACHALIAH, M.M. PUNCHHI

Case summary

It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice....

Judgment text

The Judgment of the Court was delivered by RANGANATH MISRA, CJ. These are applications under Article 32 of the Constitution. The first petition is by an advocate practising in this Court; the second by the Supreme Court Advocates on Record Association and the last by the Honorary Secretary of the Bombay Bar Association. These applicafions are in the nature of public interest litigation. The relief asked ·fflr is one for mandamus to the Union of India to fill up the vacancies of Judges in the Supreme Court and the several High Courts of the country and ancillary orders of directions in regard to the same. The petition from Bombay is confined to the relief of filling up of vacancies in the Bombay High Court. Since common please were advanced and the relief sought was of similar nature, these applications have beeen clubbed together and heard from time to time.

In response to the rule, the Union of India took the stand through the Attorney General that the petitions were not maintainable and the filling up of the vacancies in the superior courts was not a justiciable matter. Reliance was placed on the decision of this Court in the case of S. P. Gupta v. Union of India, [1982] 2 SCR 365. The objection raised by the learned Attorney General was overruled by the Court by drawing a distinction between fixing the Judge strength in the Courts or selection of judges on one side and the filling up of vacancies on the basis of sanctioned strength on the other. This Court as an interim measure took the view that while the ratio in S. P. Gupta's case left the matter of fixing up of the Judge strength to the President of India under the constitutional scheme, and the choice of Judges to the [1990] Supp. 2 S. C. R.

prescribed procedure, once the sanctioned strength was determined it was the obligation of the Union of India to maintain the sanctioned strength in the superior Courts and these cases were allowed to proceed. Mr. Soli Sorabjee, the succeeding Attorney General, withdrew the objection regarding this Court's jurisdiction and m·ade a statement that he was of the view that it was the constitutional obligation of the Union of India to provide the sanctioned Judge strength in the superior courts and the default; if any, was a matter of public interest and the writ petitions requiring a direction to the Union of India to fill up the vacancies were maintainable. I The superior judiciary is divided into the Union Judiciary covered by Chapter 4 of Part V and the High Courts in the States are • covered by Chapter 5 of Part VI of the Constitution.

Article 124(1) of the Constitution provides: "There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. " From time to time ! ht Judge strength in the Supreme Court has been expanded and by the Supreme Court (Number of Judges) Amendment . Act, 1986 (22 of 1986), the existing number has been fixed at 25 apart from the Chief Justice. Article 214 provides: "There shall be a High Court for each State. " But there are 18 High Courts in all on account of the fact that the High Court at Guwahati exercises jurisdiction over six States including Assam; the High Court at Chandigarh is common for the States of Punjab and Haryana and the jurisdiction of the High Court of Bombay extends over Goa. There is High Court at Delhi though the mandate of Article 214 does not apply.

Article 216 provides: "Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. " SUBHASH v. U. O. l. [MISRA, CJ. ] From time to time administratively the Judge strength of the different High Courts has been refixed. At the time these matters were first placed before us the total strength was 462 but later it has been enhanced to 470. The enhancement has been on account of the fact that in the Judge strength of the High Courts of Calcutta,. Himachal Pradesh, Karnataka, Madras and Rajasthan had ten additions in all and the sanctioned strength of the Kerala High Court was reduced by two. There was a time during the pendency of these writ petitions when the vacancies were more than 100 in the High Courts.

From an affidavit filed before this Court on behalf of the Ministry of Law & Justice the position as on 20th of February, 1990, showed that as against the sanctiOned strength of 462, 368 had been filled up and the vacancies were 94 in all. By 16. 8. 1980, the sanctioned strength had gone up to 470 . and as against these, 440 appointments had been made. The total posts to be filled up were 30 in number-19 being permanent and 11 additional vacancies. We gather that by now some more appointments have been made and the number of unfilled posts has been reduced to around 22. These cases were adjourned from time to time with interim directions calling upon Union of India to fill up the vacancies within specified dates. As a result of monitoring by the Court by interim directions in these petitions, the position has somewhat eased but 22 vacancies still remain to be filled up. With retirements and other cognate processes the number of vacancies keeps increasing from time to time.

We had made it clear to the learned Attorney General at the several interlocutory hearings that these petitions and the Court's directions have nothing to do with the actual selection of particular Judges to be appointed in the vacancies and that was a matter exclu- p sively within the domain of the constitutional scheme and concern of the concerned constitutional functionaries. These petitions are concerned with the filling up of vacancies and discharge of the constitutional obligation of the Union of India to the nation in that behalf We may point out that filing of these writ petitions and the proceedings of the Court have helped the Union of India to fill up the vacancies to a considerable extent by making the various constitutional authorities Lconscious of the urgency of problem and of their responses.

We have noticed the fact that while the process of filling up of vacancies was considerably slow prior to the general election held in November, 1989, there has been an improvement in the process from January this year. We have, however, not been able to appreciate the stand taken in some of the affidvaits of the Union of India that as the place and process of appointments has been expedited, the writ-petitions be taken to have served their purpose and do not survive. We recall several occasions when our interim directions were received not with any conspicuous enthusiasm and other occasions when inspite of assurance and undertakings no progress was noticed. II For more than six scores of years High Courts have been functioning in this country. Earlier appeals lay from·the High Courts to the Privy Council in certain situations. Under the Government of India · Act, 1935, a Federal Court was stipulated which started functioning from 1937.

With Independence of India in 1947, the jurisdiction of the Privy Council got repealed. Our Constitution provided for a Supreme Court for the entire country and a High Court for every State. The superior judiciary in India now, therefore, consists of the Supreme Court and the High Courts. Article 50 in Pait IV of the Constitution required the State to take steps to separate the Judiciary from the Executive in the public services of the States. By now that has been done. The constitutional scheme postulates Rule of Law and independence of the judiciary. With a view to providing the same as an indispensable factor for the sustenance of the democratic pattern of society, provisions have been made in the Constitution. The Preamble of our Constitution stipulates justice-social, economii: and political for all citizens of India.

It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice. The Judiciary therefore becomes the most prominent and outstanding wing of the Constitutional System for fulfilling the mandate of the Constitution. For its sound functioning, it is, therefore, necessary that there must be an efficient judicial system and one of the factors for providing the requisite efficiency is ensuring adequate strength. For Rule of Law to prevail, judicial independence is of prime necessity. Dr. Robert MacGregor Dawson, speaking about individual independence of Judges once said: "The Judge must be made independent of most of the restraints, checks and punishments which are usually called into play against other public officers He is SUBHASH v. U. 0. 1. ! MISRA, CJ. ] . J.

JI thus protected against some of the most potent weapons which a democracy has at its command: he receives almost complete protection against criticism; he is given civil and criminal immunity for acts committed in the discharge of his duties; he cannot be removed from office for any ordinary offence, but only of misbehaviour of a flagrant kind, and he can never be removed simply because his decisions happen to be disliked by the Cabinet, the Parliament, or the people. Such independence is unquestionably danger- .. ous, and if this freedom and power were indiscriminately granted the results would certainly prove to be disastrous. - The desired protection is found by picking with special care the men who are to be entrusted with these responsibilities, and then paradoxically heaping more privileges upon them to stimulate their sense of moral responsibility, which is called in as a substitute for the political responsibility which has been removed.

The Judge is placed in the position where he has nothing to loss by doing what is right and little to gain by doing what is wrong; and there is therefore every reason to hope that his best efforts will be devoted to the conscientious performance of his duties. " In Bradley v. Fisher, 80 US 335 (1871) it was pointed out: "Our judicial system is guided by the principle that a judicial officer, in exercising the authority vested in him must be free to act upon his own convictions, without apprehension of personal consequences to himself. " For the availability of an apprpopriate atmosphere where a Judge would be free to act according to his conscience it is necessary, therefore, that he should not be over burdened with pressure of work which he finds it physically impossible to undertake. This necessarily suggests that the Judge strength should be adequate to the current requirement and must remain under constant review in order that commensurate Judge strength may be provided.

Within a few years of functioning under the aegis of the Constitution our pe0ple started realising that there was backlog in courts and the same wa; on rapid and constant increase. The Law. Commission in its 14th Report in September, 1958, dealt with the question adequacy of judicial strength as a matter of special importance. It pointed out: · "The fundamental rights conferred by the Constitution and resort to the remedies provided for their enforcement have contributed largely to the increase in the volume of work in the High Courts. Applications for the enforcement of fundamental rights, applications seeking to restrain the usurpation of jurisdiction by administrative bodies and applications or suits challenging the constitutionality of laws have made large additions to the pending files of the High Courts. It has to be observed that many laws have come in for challenge in the courts on the ground of their inconsistency with the Constitution.

The complexity of recent legislation has resulted in a large number of novel and difficult questions having been brought before the High Courts. Their decision have not only taken longer time but have led not infrequently to reference to Full Benches which necessarily divert the available judge power from what may be called normal judicial work. As a result of this large addition to their work, the disposal of ordinary civil and criminal work in the High Courts has suffered very considerably. This increase of work and its specially difficult and novel character can well be regarded as an important cause of the accumulation of old cases. " The Law Commission emphasised the position by further saying: "Governments could not have been unaware, at any rate from 1950 onwards, that the files of the High Courts were being loaded with a large amount of additional work.

The large number of writ applications and applications questioning the constitutionality of enactments and rules framed thereunder must have come directly to the notice of the Governments. Responsible persons cannot also have failed to notice that the disposal of these complicated and in a sense novel matters consumed a great deal of the time of tl1e High Courts which had the natural consequence of clogging the normal and usual work. " Inspite of highlighting of the position by the Law Commission and the warning administered by it, the process of providing adequate judge strength commensurate with the volume of litigation has been usually slow. Subsequent reports of the Law Commission have referred to this aspect. SUBHASH v. U. O. l. [MISRA, CJ. I The Commissi~n took note of the position that due consideration was not being bestowed upon the administration of justice and the importance of the subject was not realised by the Executive authorities.

Lack of adequate financial provision and absence of appropriate funding of schemes for improvement often led to abandonment of contemplated wholesome measures and made long term planning difficult. In fact, the plea from several relevant quarters that 'Administration of Justice' should be treated as a 'plan subject' has not beet\ entertained all these years. It has been so more on account of lack of appropriate appreciation of the importance of the matter than anything also. Lord Denning of the Preface to the Law in Crisis by Professor C. G. WeeraMantryhassaid: "We are passing through a critical moment in the history of mankind. Civilised society appears to be disintegrating. Minorities openly defy the law for their own ends. Terrorists seize hostages and threaten to -kill them. Workmen set up picket hives outside power stations and threaten to bring the country to a standstill. Students occupy buildings and prevent the running of their universities.

Only too often their threats succeed. The peaceful majority give in. They surrender. Moral and spiritual values, too, appear to be at a low ebb. The sanctions of religion have lost their force. Schools and teachers take much interest in social sciences. They explain how people behave. They seek to help the misfits. But they do not set forth standards of conduct. They do not tell people how to behave. The only discipline to do this is the discipline of law. It is the law which teaches that men must not resort to violence to obtain their ends; that they must keep their promises; they must not injure their neighbours and they must act fairly. The law covers the whole range of human behaviour and says what men must do and mnst not do ....... Law which is the very foundation of the civilized society is in peril.

" Sir Frederick Pollock in one of his lectures pointed out that long indifference to the legal system and to all that goes with it is the result of many generations of neglect in communicating to the layman some understanding of the very ground work of the legal system under which he spends his life. Religion, politics, art, literature-all these are taught as part of general education, but not the fundamentals concerning the administration of law, nor the history of liberty nor the need for public vigilance over. its legal system. It is not surprise that faith and confidence in the law are steadily declining and legal systems, by and large, are losing their base of popular support on which they must ultimately rely. We are living in an age when all traditional institutions are under scrutiny, suspicion and challenges of reassessment. If the current mood of disillusionment infects the core of the law and its institutions, we may .

have lost our last opportunity for the preservation of freedom under the Law. It is, therefore, a matter for immediate attention of all concerned-and of Government in particular-that the need is recognised and the Administration of Justice is made a plain subject and given appropriate attention. It is true that the number of High Courts compared to 1950 has increased in later years. It is also true that the Judge strength has been increased. It is, however, equally true that the enhancement has not been commensurate. After a lot of exercise, per year disposal per Judge of main cases has been fixed at 650. If this be the basis, perhaps no High Court in India excepting that for Sikkim has adequate judge strength. We gather that the Kerala High Court where the sanctioned strength has been reduced by 2, has a sanctioned strength 22 while its pendency as on I. 1. 1990 being 34,330 cases justifies a Judge strength of almost 50 on the basis of the measure of 650 cases per Judge per year.

We intend to indicate that there was no justification for reduction of the sanctioned strength. We are alive to the position that in S. P. Gupta's case this aspect has been held to be not justiciable. We do not agree with the opinion expressed by the majority on this aspect and are of the opinion that that aspect requires reconsideration. For the present we suggest to Government that the matter should be reviewed from time to time and steps should be taken for determining the sanctioned strength in a pragmatic way on the basis of the existing need. If there be no correlation between the need and the sanctioned strength and the provision of judge-manpower is totally inadequate, the necessary consequence has to be backlog and sluggish enforcement of the Rule of Law. III Another reason directly contributing to backlog and its increase is the non-filling up of the sanctioned vacancies.

Under the traditional process followed the matter, steps for filling up of vacancies have been initiated by the Chief Justice of the High Court six months in advance of the occurrence of the vacancy. The date of retirement of a Judge is known on the date he enters office unless vacancy is caused by resignation, removal by impeachment or death. Apart from these eventualities, the date of vacancy in the post being known for years before there can really be no justifiable excuse for inaction in the initiation of steps for filling up the vacancy well in advance of its actual occurrance. The existing scheme of appointment involves a process of consultation with the Chief Justice, the Governor of the State, the Chief Justice of India before the President of India makes the appointment. The involvement of the Governor brirtgs in the Chief Minister and Presidential action involves the Central Government. If, however, every .

functionary associated with the process remains cognisant of the constitutional obligation involved in the matter we see no justification as to why for selection of the incumbent more than 3 to 4 months should be necessary. The system should be so perfect and smooth that with the retirement of one Judge his successor should be ready to step in and by this process not a day's judge strength should be lost to a High Court. The question of appointment of Judge was the subject-matter of the 80th Report of the Law Commission. It referred to its earlier Report (1979) where it was said: "As mentioned earlier, though the sanctioned judge strength of the High Courts in the country during the year 1977 was 352, only 287 judges on an average were in position. Likewise, in the year 1976, even though the sanctioned strength was 351, only 292 judges were in position.

Leaving aside the judges who were entrusted with work outside their normal duties, the fact remains that the number of judges in position in both the. years was less than 'G the sanctioned strength. This disparity between the sanc- ·t tioned strength, and the number of judges in position was apparently :lue to the fact that vacancies in the post were not filled in as soon as they occurred. It is our considered opinion that delay in filling in the vacancies is one of the major controlling factors reasonsible for the pilling accu- mutation of arrears. In our opinion, when a vacancy is expected to arise out of the retirement of a judge, steps for filling in the vacancy should be initiated six months in advance. The date on which such a vacancy will normally arise is always known to the Chief Justice of the High Court and also to others concerned.

It should be ensured that necessary formalities for the appointment of a Judge to fill the vacancy are completed by the date on which the vacancy occurs. " Several other reasons contributing to the non-filling up of vacancies were brought to the fore in the Report. Obviously, the. reports furnished by the Law Commissions from time to time have no~ · received adequate consideration in the hands of the appropriate authorities and administration of justice has not received its due attention. This has resulted in the obstinate problem of backlog. Prolongation of litigation is perhaps a necessary evil of our type of adjudicatory system.

Dacon (Law Tracts) listed the grievances of his times against the laws of England and the Justice system in the following way: "Certain it is that our laws, as they now stand, are subject to great uncertainties, and variety of opinion, delays and evasions whereof ensueth: (i) that the multiplicity and length of suits in great; (ii) that the contentious person is armed and the honest subject wearied and oppressed; (iii) that the judge is more absolute, who, in doubtful cases, hath a greater scope and liberty; (iv) that the chancery courts are more filled, the remedy of law being often absent and doubtful; (v) that the ignorant lawyer shroudeth his ignorance of law, in that doubts are frequent and many; and (vi) that men's assurances of their lands and estates by patents, deeds, wills are often subject to question and hollow ....... " Bacon's description to a considerable extent represents even today's situation.

The volume of litigation has increased while there has been no commensurate expansion of the adjudicatory machinery. When interim directions made in these cases were not yielding results, the Attorney General mentioned to us on repeated occasions that the consultations were taking time. Very often, while the Chief Justice of the High Court had made his recommendation, the response from the Chief Minister through the Governor of the -State was not forthcoming, he used to say. Repeated reminders were being sent from the Union Government and they went unheaded: On one occasion to meet the staleinate we had indicated in an interlocutory order that a time:frame must be set for the response of the constitutional authority in the State and if there was no response forthcoming within the time, the Union of India should be in a position to proceed with the recommendation of the Chief Justice of the High Court. That even bore no fruit. Backlog in Courts has become a national problem.

The adjudicatory process is being blamed for the equalling itself to the challenge of the times. There is a general complaint that the judicial system is on the verge of collapse. It is, therefore, the obligation of the constitutional process to keep the system appropriately manned. We have found no justification for the sluggish move in such an important matter. We may, at this stage, advert to the Constitution (Sixty-Seventh Amendment) Bill, 1990, which is pending before the Parliament. In the statement of objects and reasons of this Bill, it has been stated: J "The Government of India have in the recent past announ- ced their intention to set up a high level judicial commission, to be called the National Judicial Commission for the appointment of Judges of the Supreme Court and of the High Courts and the transfer of Judges of the High Courts , so as to obviate the criticisms of arbitrariness on the part of the Executive in such appointments and transfers and also ..

to make such appointments without any delay. The Law Commission of India in their 12 lst Report also emphasised • the need for a change in the system. " .. ion being set up, the correctness of the ratio in S. P. Gupta's case of the status of the Chief Justice of India may not be necessary to be examined in the view of the fact that by the Amendment the Chief Justice of India would become the Chairman of the Commission. Jn case the Commission is not constituted, the two questions indicated above which are of vital importance to the efficient functioning of the judicial system in the countl}' require consideration and there Is an element of immediacy in the matter. We, therefore, suggest that the writ petition on the two issues indicated above may be taken up for hearing at an early date and preferably before the end of thts year.

We hope and trust that the Supreme Court Advocate-on- Record Association would continue to evince interest in the matter but if our expectations are belied, this being in the nature of a public interest litigati<! n, some on interested in the restitution of the issues would be brought on record to effectively continue the proceeding and assist the Court. We Clarify that apart from the two questions which we have indicated, all other aspect! ; dealt with by us are intended to be final by· our present order. There shall be no order for costs. R. S. S Petitions disposed of.