Supreme Court Bar Association
president Pravin H. Parekh wrote a detailed letter after CJI RM Lodha suggested
that all courts should work 365 days to not only clear the backlog of the cases
but for the better service to the common citizens.
There are some points where bar
associations and lawyers are not comfortable with this proposal or idea. Why lawyers
are opposing the idea, and why they do not agree to work 365 days, it is clear
in the text of the letter. Here is the text of the letter for you read.
06 June 2014
Hon’ble Mr. Justice R.M.
Lodha
Chief Justice of India
Supreme Court
New Delhi
Respected Chief Justice,
1.
After you took over as the Chief Justice
of India, Your Lordship has not only taken keen interest in functioning of the
administration of justice but also have been acting upon bringing some useful
reforms. Your Lordship has also been taking along the Supreme Court Bar
Association in this exercise.
2.
I have read the news item in ‘The Hindu’
Newspaper of yesterday and the news item in ‘Hindustan Times’ of today.
3.
As far as the suggestion of courts working
365 days is concerned, a detailed deliberation with all the stake holders
including the members of the Bar and particularly Supreme Court Bar Association
is very necessary. The object, purpose of Your Lordship to reduce the ever
increasing arrears of matters in all courts, which no doubt is extremely
necessary, is very valid and wholesome. This is a challenge to all of us.
4.
The Executive Committee of Supreme Court Bar
Association in its meeting held on Tuesday, 3rd June has resolved that it is
necessary that Your Lordship have interaction with the Supreme Court Bar
Association before taking any final decision.
5.
The scheme as we can understand from the
above news items seems to be that Hon’ble Judges can choose when they will work
and when they will have holidays, but they would be permitted as many holidays
and vacations as they are entitled to, but it should be whenever they choose rather
than on fixed days and at fixed periods in the year. However, there is no
reference to give similar option to members of the Bar. I don’t know if the
scheme is for the lawyers to work for 365 days, without any option of holidays.
6.
Primarily the view of most of the members of
the Supreme Court Bar Association whom I had the occasion of speaking to, about
this issue, is that the members of the bar cannot possibly work for 365 days as
no human being can or should work 365 days. The members of the bar are already
working very hard under the existing system. Except for their work obligations,
they have their family as well as social obligations. They need holidays to
prepare their cases and they also need some time to have vacation as all others
have. That time is provided under the existing system. Each Judge has been a
lawyer and would easily appreciate this.
7.
Therefore, if any matters are to be listed on
nonworking days, by the present system, the consent of the advocates appearing
in those matters should also be obtained. In one way the Hon’ble Supreme Court
follows this while listing final disposal matters during summer vacation by
giving choice to the members of the Bar before listing their matters during
vacation.
8.
It is believed worldwide that the holidays
are very necessary for the efficient and effective functioning of any
Institution. It will apply with greater force to members of the Bar looking at
their working hours.
9.
On the face of it, 365 days work scheme may
not reduce the arrears because if working hours of the Hon’ble Judges remain
the same the judicial output will remain constant. In fact the new scheme may
perhaps result into increase in the arrears because on saturdays, sundays and
other holidays, the stake holders in administration of justice may not take the
judicial work as seriously as they do it on working days.
10.
The members of the Supreme Court Bar
Association, are well aware of the importance of finding the way out to solve
the problem of increasing backlog and we suggest the following options rather
than working for 365 days:
A. Filling up of all the posts of Judges in all
courts on the day of vacancy:
i. As on date the Hon’ble Supreme Court has 5 vacancies. For Hon’ble
High Courts throughout the country, the approved strength of Judges is 875, as
on 1st April,
2014 the working strength has been 623 and therefore the vacancies as on 1st April,
2014 are 252. Situation is no better in the District and Subordinate Judiciary
which is also facing a huge shortage of Judges. Against the sanctioned strength
of 17,715 Judges, more than 3,300 posts are vacant. Similar has been the
position for the last few decades. This is the most important issue which needs
to be tackled immediately in order to solve the problem of increasing arrears.
The solution is exclusively in the hands of Hon’ble Judges, because all
judicial appointments are in the hands of Hon’ble Judges.
ii. The vacancies are well known much in advance therefore why should a
single judicial post remain vacant in the Hon’ble Supreme Court or in Hon’ble
High Courts or in any Court or Tribunal. We suggest that two or three months
before, the vacancy or vacancies arise, collegiums exercise should be completed
and the names may be sent to the Government so that in case the Government has
any suggestions about any of the candidates, they also get time to return the
suggestions for reconsideration. Thereafter the necessary order etc. may be
passed by Respected Rashtrapatijee. The date on which the vacancy arises should
be the date on which the vacancy is filled by making sure that the Hon’ble
Judges filling the vacancy takes oath on the date the vacancy arises.
iii. As far as the appointments in Hon’ble High Courts are concerned,
there has been a grievance that the Supreme Court collegiums at times take very
long time running into couple of months, to consider the lists for appointment
of Judges for High Courts and at times return the whole list for
reconsideration after a long time. Some mechanism of coordination between the
Hon’ble Supreme Court and Hon’ble High Courts should be evolved so that this
deadlock can be avoided and the Judges take oath on the very day the vacancy
arises in all courts.
iv. As far as the appointments to the District
Courts and Subordinate Courts are concerned they are under complete control of
High Courts. Some directions may be issued to all High Courts to fill up these
posts on the day, the vacancy arise.
v. Appointing only competent and deserving Judges
is also very important. Today conscious and hard working judges do bear greater
burden.
B. Punctuality of the Judges to work in Court
room full time is very essential:
i. Punctuality of working in the Court rooms on time and for the
full time must be strictly followed by all the Judges throughout the Country.
ii. It is well known that some Judges come late, taking tea breaks,
break for signing orders etc. etc. during working hours and there is no control
on this. In many Courts the full court meetings take place during working hours,
subcommittee meetings take place during working hours, interview of the
candidates for Judicial posts take place during working hours and after the
full court reference of condolence, as a mark of respect the court work is not
continued. Rules and strict guidelines must be made to ensure that entire
judicial time is fully and properly used by each and every Judge in all courts.
C. Uniform Parameters:
i. Certain uniform principles, in disposal of cases are required
to be formulated by the Hon’ble Judges. It is true that a Judge has to
discharge his judicial function according to his sense of justice but unless
certain institutional policy decisions are taken and implemented, the arrears
will go on mounting. It is not possible with any certainty for a counsel to
advise about the result of a litigation or whether the matter should be filed
or not. This leads to extensive filing of cases which in turn leads to backlog
of cases. If general parameters are laid down and are broadly followed by
Hon’ble Judges, people would stop filing certain cases.
ii. Hon’ble
Judges may spend some time and lay down the policies to be followed by the
Judiciary. There is nothing unjudicial about laying down some policies for the
better and efficient working of the judicial system. This should be made
public. The meetings between Hon’ble the Chief Justice of India and the High
Court Chief Justices should take place more often and there should be greater
deliberation. In some of the sessions, members of the bar may also be invited
because the Bar is partner of Judges in administration of justice and their
suggestions may be of great use.
D. Strikes by lawyers:
The strike by lawyers is another reason for arrears. There can be
no justification for going on strike by lawyers except in rarest of rare cases
because it affects their own clients and it affects their image also. The
Hon’ble Supreme Court has declared strikes by lawyers as illegal. In my
experience as a member of the bar there is no problem which cannot be sorted
out by interaction between the bar, the bench and the government. Rather than
going on strikes, lawyers may wear a black ribbon to show their disagreement or
dissatisfaction on any issue. In some cases, the lawyers may also take out
protest march or rally, but that should also be after the working hours of the
courts.
E. Adjournment by lawyers:
Likewise, unnecessary adjournments by lawyers also lead to delay.
However, sometimes adjournments are required because of lack of proper
coordination between the Bar and the Bench and sudden listing of matters or
collapse of a Board. This can be sorted out. The focus has to be on a litigant
who has a right to have a lawyer of his choice and right to remain present in
court on getting reasonable notice. Giving fixed dates keeping in view
likelihood of getting those matters heard and disposed of on those dates will
be ideal.
F. Governments as litigants:
The Governments central as well as state and statutory authorities
etc in most of their litigations always go right up to the Hon’ble Supreme
Court. This many times happens because the officers making these decisions have
a fear that, if they do not go up to Supreme Court somebody may make
allegations against them. This is required to be controlled by laying down
certain guidelines by governments and creating a machinery which will
scrutinise independently and impartially which matters should be filed and
which matters should be appealed and till what stage.
G. If necessary, working hours of all courts may be increased by
one hour on all working days for sometime as an experiment in order to see if
disposal of matters increases and if it does then this may done for year or so,
till the arrears reduced. In Supreme Court the working hours were increased by
half an hour for few years.
11.
If the above suggestions are implemented and
if right Judges are appointed in right time the problems of arrears can be
sorted out.
12.
Your Lordship may not understand this
communication as if the Bar is not ready to join in any endeavour to reduce or
wipe out arrears. We are open to deliberations and suggestions. The question is
how to do it effectively.
13.
The Executive Committee of the Supreme Court
Bar Association would like to have a meeting with your Lordship to discuss the
views of members of the bar on this very important issue and during such
meeting we will submit supplementary suggestions after wider consultation, with
the members of the Supreme Court Bar Association.
With Best
Personal Regards on behalf of members of the Supreme Court Bar Association
Yours sincerely,
Pravin
H. Parekh
President,
Supreme
Court Bar Association
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