India needs judicial reforms – but granting more powers to the chief justice won’t solve anything

Over the course of the last year, Chief Justice NV Ramana has repeatedly spoken about the need for the creation of a National Judicial Infrastructure Authority to fix the abysmal quality of judicial infrastructure at the district level. He even sent a proposal for the creation of such an authority to the Union Law Minister in October 2021, a copy of which was recently provided to us by the Chief Justice of India’s office under the Right to Information Act, 2005.

The backdrop to this proposal requires a brief discussion. In mid-2019, the Vidhi Centre for Legal Policy, a non-profit organisation, published a pan India survey report on the state of judicial infrastructure at district courts authored by our former colleagues Sumathi Chandrashekharan, Reshma Sekhar and Diksha Sanyal.

The survey covered 665 district court complexes in India and assessed each court complex on the parameters laid down by the National Courts Management Systems Committee in one of its earlier reports on the baseline requirements to make a district court complex litigant friendly. These included parameters such as ease of reaching the court, navigation, availability of waiting area, barrier-free access, hygiene, availability of case displays, security, amenities and toilets.

What survey showed

The findings revealed stark inequalities between states in India, with Chandigarh, Delhi, Punjab, Haryana and Kerala performing well on the parameters. Bihar, Odisha, Jharkhand and West Bengal performed poorly on the same metrics. Many of the findings were just shocking – for example, less than half of the courtrooms surveyed (40% or only 266 court complexes) had fully functioning washrooms.

Courts performed very poorly on accessibility as well as only 27% of court complexes were found to be fully accessible through ramps and/or lifts, only 11% had designated washrooms for persons with disabilities and only 2% had built-in visual aid features.

The report appears to have had an impact on the Supreme Court since a few months after its publication, the then Chief Justice Bobde in December 2019 initiated an online survey of the state of infrastructure across all of India’s district courts. Each district court complex was required to complete the online survey sheet that asked a series of questions on the facilities available in their court complex.

The Supreme Court’s survey was far broader than the Vidhi study since it covered even facilities such as record rooms that are required for these courts to function efficiently. The final survey results were never published by the Supreme Court and only parts of it were leaked to select media outlets last year when the chief justice of India was ramping up his pitch for the creation of a national umbrella organisation to tackle the inadequacy of infrastructure.

The Supreme Court obliged us with a copy of the survey under the Right to Information Act. Some of the findings are reproduced below (we recreated the graphs since the court provided us with a hazy printout) and the court’s reply can be accessed here.

From the data revealed above by the Supreme Court in its RTI reply, there is clearly an “infrastructure gap” as concluded by the chief justice of India in the concept note sent by him to the Union Law Minister setting out the case for the creation of a National Judicial Infrastructure Authority.

The problem with it however is that the Supreme Court has shared only aggregate all India data from the survey. It would have been useful to see a breakup of state-wise data to assess the variances between states – for as the Vidhi survey showed us, states differ with regard to infrastructure and aggregates do not take us anywhere in finding solutions for state-level problems.

The reasons for the difference between various states may lie in state capacity to execute infrastructure projects and the fiscal health of the state may also play a role in the matter. This is true for the issue of appointments to the district judiciary as well – viewed at an aggregate level India has a vacancy of 5,132 judges but when the data is broken down state-wise, it shows that merely three states – Uttar Pradesh, Bihar and Madhya Pradesh – account for a majority of the vacancies.

Lack of funding

The concept note sent to the Union Law Minister by the Chief Justice of India identifies three reasons for the “infrastructure gap”: lack of funds, under-utilisation of existing funds and poor planning of resources. The analysis of each of these reasons presented by the chief justice of India is at best superficial, based largely on anecdotal evidence.

Take for example the chief justice of India’s complaint about the lack of funds. The Centrally Sponsored Scheme for Judicial Infrastructure has released Rs 8710 crores for judicial infrastructure since 1993 of which Rs 5,266 crores were released in the last eight years.

In addition, most state governments are required to match this amount in a 60:40 ratio. Despite the significant allocations made by the centre, the concept note is silent on the efficacy of these allocations against outcomes under the Centrally Sponsored Scheme. Instead, it states that the expenditure on the Centrally Sponsored Scheme represents only 0.000182% of the Union’s annual expenditure of Rs 30.42 lakh crore. This is an irrelevant comparison.

Even on the issue of underutilisation and poor planning, instead of digging deeper into the issues plaguing the Centrally Sponsored Scheme for judicial infrastructure, the concept note goes all over the place, complaining about the non-release of funds from the allocations made by the 13th Finance Commission. It decries the fact that states did not release funds under the 14th Finance Commission when the 14th Finance Commission had merely endorsed the proposal submitted by the Department of Justice and urged the states to allocate funds to the judiciary.

The states were well within their rights to not do so. This concern with the release of Finance Commission funds is a digression because a very minor portion of them was earmarked for judicial infrastructure anyway.

Instead, the focus should have been on the Centrally Sponsored Scheme for judicial infrastructure, which is the flagship program for funding judicial infrastructure.

Inefficient planning

There are however major problems with how the scheme is administered. The biggest problem is the delay by many states in submitting utilisation certificates to the law ministry, without which further funds cannot be released.

The other issue is a lack of transparency at the level of the Law Ministry. For example, three years ago when we asked the Law Ministry about the number of court-rooms constructed under this Centrally Sponsored Scheme, it was unable to provide us with an exact number. Since then, it has developed a website – Nyaya Vikas which has improved the quality of monitoring.

On the issue of inefficient planning and execution, the concept note complains that “every stakeholder involved in such infrastructure development activity, associates with the process as a part-timer. The officials from civil administration, technical team of architects and engineers from the Public Works Department of the state government, the judicial functionaries from the district court as well as from the High Court do not associate full-time with any such project, resulting in a situation where the project itself becomes a part-time/ad-hoc venture for those State Functionaries”.

There is likely some truth to this complaint except it is difficult to verify because the concept note is silent on how exactly it has come to this conclusion. Did it interview people on the ground? If so, how many and in which state? Is this a problem across states? Was the conclusion based on anecdotal evidence? Why is it that some states like Delhi for example are able to construct fabulous district court complexes such as the ones at Saket and Rouse Avenue while operating within the confines of the existing system? A policy reform exercise demands answers to these questions.

CJI’s solution

As a solution to the problems identified above, the chief justice of India has proposed creating a National Judicial Infrastructure Authority of India that is independent of the executive to execute a “national project” called the National Court Development Project.

This project is supposed to lay down the “road map for the planning, creation, development, maintenance and management of functional infrastructure for the Indian court system”.

The proposal contemplates bodies at the state level (called the State Judicial Infrastructure Development Authority) and national level, with the chief justice of India as the “patron-in-chief”. The national authority will comprise the chief justice of India, a Supreme Court judge nominated by him as the executive chairperson, four chief justices of High Courts, the secretaries of Law and Finance of the Union Government, director general of Public Works Department and the National Informatics Centre and the secretary general of the Supreme Court of India.

The state authority will contain the same composition of judges and officials from the High Court and the state government.

While the concept note is entirely silent on the proposed powers of the National Judicial Infrastructure Authority of India, given the general tenor of the note and examples cited in it, it appears that the demand is to bestow upon the National Judicial Infrastructure Authority of India, through parliamentary legislation, all the requisite financial and executive powers for it to operate independently of the Union and state governments. Simply put the Chief Justice of India is demanding greater financial autonomy for the judiciary.

This demand for greater financial autonomy is an old one. As things stand presently, the financial power to actually sanction funds for expenditure for the judiciary lies with the state government (even the Centrally Sponsored Scheme funds are routed through the states). At most, state governments may delegate minor financial powers to the High Courts, which means that all significant financial expenditure for the judiciary can be cleared only by the state government.

This issue was examined by the National Commission to Review the Working of the Constitution appointed by the National Democratic Alliance government when Vajpayee was prime minister. As reported by the Commission, the state governments made it clear to the Commission that as long as their bureaucrats had to appear before the Public Accounts Committees of their respective state legislatures to answer questions on budgetary expenditure, they would retain control over the funding of the judiciary.

That is a sensible proposition, more so when viewed in the backdrop of how opaque the High Courts are about their finances. Most of them refuse to provide basic documents like financial audit reports under the RTI Act (we tried).

Question of accountability

As the patron-in-chief of the National Judicial Infrastructure Authority of India, will the chief justice of India be willing to subject himself to questioning by the Public Accounts Committee or perhaps the Central Bureau of Investigation in cases of financial misappropriation? If the answer to that question is in the negative, the chief justice of India should simply forget about the National Judicial Infrastructure Authority of India becoming a reality.

The chief justice’s proposal for the National Judicial Infrastructure Authority of India is entirely silent on this issue of financial accountability.

The other problem with the chief justice’s proposal is the requirement for both national and state-level authorities. While there is a clear rationale for state-level authorities since High Courts and state governments work together to plan and execute infrastructure projects, the Supreme Court has absolutely no role to play in infrastructure planning and execution.

As per the current constitutional arrangement outlined in Articles 227 and 235, the High Courts are administratively in control of the district judiciary. There is no equivalent provision giving the Supreme Court control over the High Courts. How then can the chief justice justify the creation of the National Judicial Infrastructure Authority of India?

Reforming the judiciary and its workings is serious business. While the Supreme Court deserves credit for initiating a survey, it must accept with humility that the solution to the problem may not lie in demanding more powers for its chief justice.

Prashant Reddy T is a lawyer and Chitrakshi Jain is a legal researcher.