Fiscal autonomy for the judiciary

By K. Subramanian

INDIA'S INDEPENDENT judicial system began under the British rule. The judiciary occupies a pivotal position in the Constitution. While the appointment of judges to the higher judiciary is made by the President in consultation with a collegium of the Chief Justice and his senior colleagues whose recommendation is virtually binding on the executive, various provisions of the Constitution ensure the independence of the judiciary from the bottom to its highest level.

The independence of the judiciary is absolutely essential for impartial administration of justice. It should not be construed that such independence should serve purely personal and selfish ends of justice. ``Just as everyone else is accountable, we (judges) are also accountable. Accountable to the same law, accountable to the same standards which we set up for others,'' says Mr. J. S. Verma, former Chief Justice of India, in an article titled `Constitutional obligations of the judiciary''.

Administration of justice must not be affected or frustrated by lack of funds. Financial security and fiscal independence of the judiciary will have a direct bearing on its independence. Unless adequate remuneration is guaranteed, a judge cannot feel independent of the executive. If the members of the judiciary were to plead for an increase in their salaries and allowances, that would not only undermine the dignity of the judiciary but place it at the mercy of the executive. Since control over the allocation of funds vests with the executive, the judiciary has to ultimately adjust its functions within the said allocation.

The present system of total control vested in the executive in the matter of budgetary allocation to the judiciary interferes with the scheme of separation of powers enshrined in our Constitution. Even if there is a genuine need for spending more in the larger interests of streamlining the machinery of justice, the judiciary cannot spend even one paisa in excess of the allocation made by the legislature and implemented by the executive. If such fiscal restrictions are not there, there is ample scope for introducing modern technology in the functioning of courts and also improving facilities for the litigant public. After 50 years of independence, the judiciary has now realised that the absence of financial autonomy has affected its independence.

Dr. A. S. Anand, Chief Justice of India, had recently said, ``I believe that some of the ills with which our administration of justice is presently afflicted are capable of being cured if financial and administrative autonomy is granted to the judiciary. Till such time as financial and administrative powers are vested in the judiciary, the State should not hesitate to lay out more expenditure for the efficient management of the judiciary in the light of the assessed requirement. As the position stands at present, every High Court and judicial system in the country is starved of funds. The expenditure on the judiciary in this country is only 0.2 per cent of the GNP as compared to 4.3 per cent in the United Kingdom. More than half of the expenditure on the judiciary is generated by the judiciary through court-fees, fines, etc.''

What is therefore needed is budgetary independence within the framework of the Constitution. A committee, consisting of nominees of the Chief Justice of India along with representatives of the Finance Ministry, should be constituted to make recommendations for budgetary allocations for the judiciary. In respect of States too, such committees could be set up with nominees of the respective Chief Justices of the High Courts. This will be a first step towards fiscal autonomy, leading to functional independence for the judiciary.

In a document titled `Parliamentary supremacy and judicial independence', the Latimer House Conference Centre at Buckinghamshire, U.K., had prescribed guidelines on June 19, 1998: ``Sufficient funding to enable the judiciary to perform its functions to the highest standards should be provided; appropriate salaries, supporting staff, resources and equipment are essential to the proper functioning of the judiciary; as a matter of principle, judicial salaries and benefits should be set by an independent commission and should be maintained; the administration of monies allocated should be under the control of the judiciary.''

Closer home, Mr. Justice S. P. Bharucha, at a recent seminar, had highlighted the importance of financial adequacy for judges for the fearless discharge of their difficult duties. He had pointed out that a Law Lord in England, as also a Supreme Court judge in Canada, got about Rs. 75 lakhs as salary in a year and judges in Singapore and Hong Kong too received high salaries, whereas in India the situation deserved vast improvement. ``Judges' salaries must be large if the institution of judiciary is to be well- served,'' the judge had observed. If only salaries and perks are adequately improved for the higher judiciary, it would surely be possible to attract the cream of lawyers for judicial appointments, which is not the case now.

There is also a suggestion that like the Railway Budget, a separate judicial budget be placed before Parliament and State Legislatures. After the budget is passed, the allocated sums should go to the Central and State judiciary as the case may be, but the expenditure should be audited by the Auditor General of India and the report should be placed before the President in the case of a Central judicial audit and before the Governor in the case of a State judicial audit.

The state earns a large sum from litigation by way of court fees but the administration of justice is the responsibility of the state and the state has to spend from the exchequer for providing better service to the public. A Constitution Bench of the Supreme Court in the case reported in (1973) 1 SCC p.162, Secretary, Government of Madras, Home Department and another, Appellant vs Zenith Lamp Electrical Ltd., had ruled that the legislature is not competent to make litigants contribute to the increase of general public revenue. In other words, it cannot tax litigation and make litigants pay, say for road building, or education or other beneficial schemes that a state may have. There must be a broad co-relationship with the fees collected and the cost of administration of civil justice.

Today, it is estimated that approximately 38 million cases are pending in various courts all over the country. While 20 million cases are pending in district courts, High Courts and the Supreme Court, about 18 million cases are said to be pending in lower courts. The disposal rate of cases in our courts is around 15 to 17 per cent. The conviction rate is abnormally low, only six per cent. Litigation is highly expensive in India, well beyond the reach of the common man. We have about 11 judges for a million population and this is the lowest ratio in the world. There are about 30,000 cases pending per million people. Because of this excessive pendency, the judiciary is over-burdened. For relieving this burden, the machinery of justice has to be streamlined, which, in turn, requires budgetary independence. It is high time that the executive and the judiciary accord top priority for initiating a proposal for the constitution and appointment of a non-government body - preferably consisting of the nominees of the Chief Justice of India and also the Chief Justices of various High Courts - to recommend on the budgetary allocation to Parliament and the State Assemblies for the judiciary.

(The writer is a former Advocate General of Tamil Nadu.)

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