Monday, October 26, 2009

SHARPENING THE AXE

Allahabad High Court - picture from the centenary volume
(Paper with some suggestions circulated by Justice Yatindra Singh, Judge Allahabd High Court for reducing pendency at the High court level in the 'National Consultation for Strengthening the Judiciary Towards Reducing Pendency', organised by Department of Justice, Government of India and the Indian Law Institute on 24, 25th October 2009, at New Delhi.
Click here to download the article in the pdf format.)


 Abraham Lincoln once said,
'If you have eight hours to chop down a tree then spend six hours sharpening the axe.'
It is good that we are sharpening our axe today. Arrears cannot be reduced unless we set a goal, have a plan, and work according to that plan. Here are some suggestions.


INFRASTRUCTURE, VACANCIES, WORKING DAYS
Improve Infrastructure, Fill up the Vacancies
A chart of institution and disposal of cases of last five years at the Allahabad High Court is as follows. Average number of Judges has been calculated, averaging the number of judges at the beginning and at end of the year after rounding off to next higher number. Disposal per Judge per year is calculated by dividing the number of cases decided, by the average number of judges for the year and rounding it off to the nearest number.


Year
Institution of cases
Disposal of Cases
Average number of Judges during the year
Average disposal per Judge
2004
172152
165650
74
2239
2005
204072
160298
77
2082
2006
215194
164446
83
1981
2007
247832
243318
79
3080
2008
251913
159739
73
2188
Average disposal of five years
(2239+2082+1981+3080+2188)/5
  2314

Total pendency of cases at Allahabad High Court and Lucknow Bench before Diwali vacation was 70284 + 252610 = 955457. A chart below explains the reason for this figure.

YearSanctioned strengthAverage working strengthAverage vacancies
2000955728
2001954847
2002955936
2003957322
2004957421
2005957718
2006958312
2007160 (wef 1.4.07)7981
20081607387
200916082 (at present)77

Total number of Judges at present is 82. Taking the average disposal of five years as standard, they should decide, 82 x 2314 = 1, 89,748  (or rounding off to 190,000) cases. The filing of cases is increasing every year. Taking the figure of 2008 and rounding it off to 252, 000, shows that with 83 Judges there will be deficit of about 252,000-190,000 = 62,000 cases every year. Arrears can never be reduced.
   
The existing Allahabad High Court building (at Allahabad and Lucknow) can accommodate about 110 Judges. Even if, 110 judges are appointed they will decide about 110 x 2314 = 254540 cases in a year. Apart from deciding the cases filed that year, the arrears will be reduced by 2,54,540 – 252,000 = 2540 cases. It will take about 9,55347  2540 = 376.11 or 376 years to clear off the arrears.

Our sanctioned strength is 160. If you make calculations accordingly then they should decide 160 x 2314 = 370240 cases in a year. Apart from deciding the cases filed that year, the arrears will be reduced by 3,70,240 – 252,000 = 1,18,240 cases. It will take 9,55,347  1,18,240 = 8.08 or 8 years to clear the arrears.

Vacancies of judges at the Allahabad High Court are often more than the number of the judges in the court; they are also more than the total strength of other High Courts. We must function to our available strength.  However there is no infrastructure: this has to be made available before making the appointments. This is true not only for our courts but also for the other courts too. The first and the most important step is: Improve infrastructure, fill up the vacancies, and make the appointments.

Increase number of working days
It is not good to increase the number of days merely because there are arrears. The arrears are not there because Judges work less but are there as the Courts are not functioning to their available strength. However a comparison with the Central Government Offices and State Government employees would be apt.

Central Government offices are closed on Saturdays and Sundays and apart from this, there are 14 holidays; they are open for 247 days. Uttar Pradesh Government Offices are open on Saturdays (except second Saturday) but the Secretariat is closed on Saturdays and Sundays and there are 23 holidays. It is open for 238 days. In comparison, the Judges of the High Court sit in court for 210 days. It is 37 and 28 days less than the Central Government and State Government secretariat.

The resolution no. 21(b) of the Chief Justices' Conference-2009 is to explore the possibility of increasing working time by 10 days or 30 minutes per day.  There is an optimum limit that a person can concentrate on work: increasing working time by 30 minutes a day is perhaps not a good solution. It may not add much but the better solution is to increase the number of working days perhaps not by 10 but by more days than mentioned in the resolution.
   
COMPUTERS UTILISATION
Bunch and Referred Cases
One way of reducing the arrears is to bunch similar cases. This was tried at Allahabad with the help of Judges of the subordinate judiciary. It was successful so far as broad categorisation of cases were concerned but was not successful for bunching cases involving similar law points. A Judge dealing the cases of a jurisdiction is a better person to do it.  It can thereafter be easily managed with the help of Computers. This is done at Allahabad. This information is available in the Allahabad High Court website in the form of bunch and referred cases. It is helpful but requires some training of staff and Judges to streamline it.

In bunch cases, every case should be connected with one case only and that case is to be treated as the leading case.  Leading case is the first case listed in the bunch. Connecting all cases with the leading case or the first case is necessary. It is only then that all cases will be listed together.
Similar procedure is to be adopted when a law point is referred to the larger bench. In this event, the referred case is to be treated as leading case. The referring order explains the points involved.

Further Proceeding Stayed
Computers can keep track of the cases where further proceedings are stayed so that these cases are taken on priority. This is also done at Allahabad High Court but the programme requires training for the Judges and the Staff members.  

GOOD ADMINISTRATION
Unnecessary Litigation
Generally it is for the legislature to enact, the executive to act, and the judiciary to decide the validity of the enactment or action. Normally the executive is required to act, redress the grievances, and inform about the action taken. This has to be done if there is statutory duty to do so. Nevertheless the executive is here to listen to public grievances and redress them.  If the grievances are raised then—even if it is not statutory—the executive is under public duty to take action if it is so required.  Even if no action is to be taken, the complainant  has to be informed: sending this information is sufficient action. At least the person comes to know the stand of the executive. However, generally the complaints to the executive—statutory or non-statutory—go unheeded.

There is some litigation at the Allahabad High court, directing the Executive to look into the grievances raised. Only a survey can tell whether it is an understatement. Often, the Judges also relegate the parties, to the level, where the complaints are to be addressed at the first place.

There is a view that the writ will lie only if the representation is a statutory one:  the mandamus is only for the performance of statutory duty. There is another view that if a grievance is raised then it is public duty to reply and the mandamus lies. In any case writ jurisdiction should not be confined to the technical limitations. In a lighter vein, this is often referred to as 'Representation Litigation'. This kind of litigation has another offshoot—contempt applications to decide the representations. 

The above mentioned litigation is unnecessary. It can be easily avoided with some modification in practice and in attitude: sending replies to the grievances will reduce it. The expenses can be easily avoided by requiring the complainant to submit duly stamped self addressed envelope along with the complaint for sending the reply.

Formalities to be Observed before taking a Decision
Many writ petitions are entertained because of mal-administration; and many others can be easily avoided with some effort. There are few fundamentals of good administration.
  1. Decision may be taken only after affording opportunity to the concerned parties.
  2. If controversy is similar or affects many persons then all claims may be considered together rather than separately.
  3. The officer passing the order should have authority to pass the order.
  4. There should be reasons for taking the decision: it restricts arbitrariness.
  5. Decision should be taken within reasonable time and communicated to the party concerned.

It is not only important that previously mentioned points are practised but they should appear in the reply. Many times, these points are followed—yet, the order does not indicate it. The writ petitions are entertained as exparte motions and the court only has the  order that does not indicate it. Often the State machinery is too slow in getting instructions.  The result is that a writ petition is entertained when it should be dismissed.

Good administration requires that every order should indicate at least the following points:
  1. How affected parties were afforded opportunity?
  2. The source of power (details of Sections or rules or regulations if it is taken under any such provision).
  3. Brief reasons for taking the decision.  In case only brief reasons are given and there are detailed reasons elsewhere then it may also be indicated in the order that detailed reason can be provided on request or on payment of a reasonable fee.
  4. The details of statutory remedy, if any, available against the decision.

LEGISLATIVE INTERVENTION - ANTICIPATORY BAIL
Criminal proceeding/ FIR may be quashed if the allegations in the FIR do not constitute an offence or make out a case against the accused or if it is abuse of process of law. In case it cannot be so done then the arrest may be avoided if anticipatory bail is granted. However, the last part may not possible in our State (Uttar Pradesh) as provision of anticipatory bail has been deleted.

Section 438 of CrPC provides for anticipatory bail. This provision was deleted in the State of Uttar Pradesh during emergency. It has not been restored despite recommendations made by all Advocate Generals since then and by the Court in Som Mittal Vs. Govt. Karnataka (2008) 3 SCC 753, Vijay Kumar Verma vs State of UP 2007 CrLJ 170 (paragraph 125 to 127), Ajeet Singh Vs. State of UP 2002 CrLJ 4561, and order dt. 9.5.2006 in Criminal WP 5774 of 2006 Smt Sudama and others Vs State of UP

Deletion of provision regarding anticipatory bail has led to filing of numerous writ petitions, applications under section 482 CrPC against the FIRs. It has another effect: the judges at the Allahabad High Court may be more inclined to entertain such cases. Its volume is so much that many benches at the Allahabad High Court are doing this work instead of normal work of criminal appeals.
   
The law and order problem is in the States that have the provision of anticipatory bail but it is not there because of this provision. There is no reason that its restoration will worsen the law and order problem. It should be restored in Uttar Pradesh.  In case this is done then majority of this kind of litigation at the High Court will end.

No comments:

Post a Comment

Aadhaar - Inadequate Data protection

Ambedkar Presenting final draft of the Constitution to Rajendra prasad - Picture courtesy Wikipedia The three part series on 'Priv...