As you ascend the short flight of steps in Supreme Court of India’s central wing and approach Court No. 1, the chief justice’s court, it is perhaps natural to be both swayed and humbled by the sense of sublime power and responsibility. Thirty-seven chief justices have passed through these hallowed portals over the past 63 years and several of them have left their indelible imprint on this critical pillar of Indian democracy. Few among them, however, appear to have looked beyond the majesty of the supreme court to address the lack of dignity of their less privileged colleagues in the lower courts. Perhaps that explains why a world of indifference continues to separate this highest court in the land from, for example, the Tis Hazari court barely 10 km away which mirrors much of the malaise that afflicts the lower courts across the country and underscores what ails the governance of our judicial machinery.

Chief Justice Sarosh Homi Kapadia, the 38th chief justice who took charge on May 12, is seeking to change all that. Soon after assuming office, he set into motion the wheels of justice to correct this long-standing lapse and furnish even the last court in the land with the basic infrastructure.

If it is Monday afternoon, it must be Chief Justice Kapadia versus the entire system that has denied even the basics, let alone perks, of office to his junior colleagues.

Following his travels through Orissa and Maharashtra, where he won his spurs as a young lawyer, the chief justice set up a special three-member bench to hear every Monday infrastructural problems being faced by the subordinate judiciary in each state. And right from the first hearing on July 12, just two months after he assumed office, he has come up with ideas and directives to make funds available to the lower courts.

Maybe empathy came more naturally to him because of his humble beginnings as a clerk in a law firm. But importantly, he also followed it up with a result-oriented course of action. He got prepared a detailed report on the state of the lower courts after his travels to the mofussil courts, with inputs from the noted jurist Fali S Nariman as amicus curiae, converted this report into an application to form the basis for the work undertaken by the special bench and in the process revived a writ petition dating back to 1989 from the all-India judges’ association.

“Court staff have no infrastructure, advocates sit in cycle sheds, courts are in bathrooms,” the chief justice observed during the first hearing, “The government spent Rs 108 crore to give laptops to the subordinate judiciary, but unless there is a generator you can’t operate laptops, can you?” The question was scarcely rhetorical because he answered it himself with a seemingly simple solution. The judiciary could readily use at least the funds generated through court fees and penalties, he said. Besides that, couldn’t the court fees be increased, he asked.

When the court fee is Rs 2.50 and filing a cheque bounce case costs all of Rs 1.25, the answer does seem a no-brainer. Yet, somebody needed to ask that question first.

“The Court Fees Act, 1870, still refers to proper fee in Schedule 1 in terms of “annas”,” the chief justice’s report notes, “It is necessary that
the central government and the state governments should rationalise the court fees applicable especially regarding commercial litigations.”

Availability of funds remains an issue because, as the report says, according to the centre’s department of justice, the total estimated cost of infrastructure needs of the district and subordinate courts until May 2010 was Rs 7,077 crore, excluding estimates for Delhi, J&K and Allahabad, which did not provide their estimates. The requirement in the current financial year itself is estimated at Rs 2,162 crore. However, the total plan outlay for the entire 11th five-year plan period, ending 2012, is just Rs 701.08 crore. In fact, from 1993-94 to 2009-10, states and union territories received Rs 1,102.18 crore in all under the centrally-sponsored scheme for development of infrastructural facilities for the subordinate judiciary.

The report reminds that “Justice Shetty Commission’s report was accepted (on March 21, 2002) which required that each state must prepare a five-year plan to improve the existing infrastructure of courts, construction of new courts, providing furniture, fixtures, library etc, to all courts and for construction of quarters for all judicial officers. Central government was directed to share half of the annual expenditure on subordinate courts and quarters for judicial officers”.

Though administration of the lower courts was originally envisaged as the responsibility of the state governments, the 42nd amendment to the constitution, in 1976, placed it in the concurrent list. While the lower courts depend primarily on the state governments for funds, the centre has been providing assistance for infrastructure development under a special scheme to states since 1934.

Chief Justice Kapadia’s ideas find a ready resonance with those who have suffered under the prevalent system. “In a situation where even a deputy secretary in the law ministry can stall the functioning of the courts, it is a good idea to use the funds generated by the judiciary,” says retired Justice Rajinder Sachar, a former chief justice of Delhi High Court, and recounts, “Once we had asked for Rs 60 crore but nothing moved. We found out that a deputy secretary had been sitting on the request.” He says the argument that access to justice should be free doesn’t wash either. “I don’t think a little hike in court fees is unjustified especially if you are ready to waive it for people who can’t afford it,” he argues, “I don’t think judges will start imposing fines just to generate more funds either.”

Retired Justice R S Sodhi, of the Delhi High Court, says the majesty of the judiciary cannot be isolated from the dignity of the courts or the judges. “If a judge in a trial court has to borrow a pencil from a lawyer just because proper stationery is not being provided to him, the lack of infrastructure is directly impeding the dispensation of justice,” he says, “In a single stroke the system has lowered the dignity of the judge and his office. If there are no proper tables, chairs, chambers and bathrooms inside the trial courts, as is generally the case, the machinery of justice just cannot function smoothly. If you have to justify every single expense to the government, how can you expect complete autonomy of the judiciary? Rationalising court fees and using the funds generated by the judiciary is certainly one way of addressing this pressing problem.”

Recourse to funds generated by the courts may, then, partly address the larger issue of the autonomy of the judiciary as well.

Rajiv Khosla, president of the Delhi Bar Association, however, points out that there are several other important issues besides funds, which, he says, remain a problem largely in the laggard states. In Delhi, for example, he says, courts do not suffer from the lack of funds but from the lack of dedicated time available with the judges for judicial work. “Judges have been assigned so much non-judicial work that many of them cannot do justice to their primary duty,” says Khosla, “Many among them are members of committees constituted to look into administrative matters such as infrastructure, housing, transport etc. That delays the dispensation of justice, which is the
basic purpose behind initiatives such as the one being undertaken by the chief justice.”

Justice Kapadia seems to know. He has recently recalled many Supreme Court judicial officers posted out with various committees.

P K Dham, a former additional sessions judge and practising advocate in Delhi, believes the chief justice’s initiative is worthwhile but says it should become an ongoing exercise. “Often, CJIs start something good, but since they are at the helm for short tenures, the effort sputters once they demit office,” he says.

That’s perhaps why, Justice Kapadia seems to be in a hurry. Just in the second hearing, with Justices Aftab Alam and KS Radhakrishnan on his side, he accepts in toto the July 2009 report of the Supreme Court-appointed one-man commission headed by Justice E Padmanabhan, a retired judge of the Madras High Court, on determination of salary, pension etc to judicial officers and pensioners. He directs all states and union territories to implement the recommendations on allowances with immediate effect and pay 60 percent of the arrears since 2006 and the rest within nine months thereafter. “When you are agreeing with the major points, why don’t you implement the recommendations?” he asks the counsels of West Bengal, Tamil Nadu and a few other states who have raised a few minor objections. The report, which recommended a threefold hike in salaries of judges in the subordinate judiciary, had already been accepted under the previous chief justice in May 2010.

But a few states have been dragging their feet insofar as allowances are concerned and Chief Justice Kapadia is not prepared to entertain any excuses. Next week, he announces, he would be taking up the issue of pensions.

Four weeks on, it is time for the chief justice to ask why several states are yet to form the monitoring committees as directed by the apex court. In his original report, he had envisaged the setting up of monitoring committees at central, state and district levels. So each state had been directed to set up a committee headed by the chief secretary, with members including the registrar general of the high court, the principal law secretary or the home secretary as the case may be and the chief engineer of the state public works department. Similarly, each district is required to have a monitoring committee headed by the principal district judge. “The committee at district level can be asked to submit requisite informations in the formats … to the state committee and the state committee can consider the status of various projects and, in case of delay, the state committee can ensure expeditious steps to be taken by all concerned authorities to complete the projects,” the report had said.

Fali S Nariman informs the chief justice that eight states have already set up the required committees. Solicitor General Gopal Subramaniam, who is appearing for the government, assures the chief justice that the rest of the states are also in various stages of following suit. The chief justice gives another four weeks for action taken or status reports on each state, following which, he says, he will start calling chief secretaries of each state to seek explanations on just why the directive has not been implemented and to take further action. The solicitor general, however, assures the chief justice that since this is a matter of everybody’s welfare all are on the same page.

Fali S Nariman remarks that these efforts to augment the infrastructure in lower courts should dispel the feeling that “we take care only of ourselves”. The chief justice adds that he has made it a point to visit one state every month to find out the conditions of the lower courts. “Next week, I am going again,” he tells Nariman. So the court stands adjourned for four weeks (until September 13) as far as infrastructure is concerned, the chief justice concludes. The following week he takes up the issue of utilising funds generated by the judiciary for the upkeep of the lower courts. In his report, he had observed, “It is necessary to create separate “infrastructure fund” head of account, under control of respective high courts or “special purpose vehicles” where the costs, court fees and fines imposed by the high courts and subordinate courts could be deposited and high court or SPV (as the case may be) should be able to allot funds to state judiciary mainly for the purpose of construction and maintenance of court buildings, judicial quarters, furnishings, computerisation, generators and other welfare measures for subordinate judiciary, judicial officers, and staff…. Costs and fine imposed by Supreme Court can be deposited to such account for the state concerned…. If SPV is created, monitoring committee can be part of it or assist the SPV.”

The chief justice grants two weeks to the solicitor general to furnish details of action taken on the idea of creating an SPV. “What has been happening is that the funds generated by the courts have been going straight to the state consolidated fund or the exchequer….the high courts don’t even know how much funds are being generated…. Why can’t we have accounting under three heads: court fees, costs and fines?” he asks, and says creation of an SPV is one way of utilising funds generated by the judiciary. He has other ideas as well, including the creation of a national budget for judicial infrastructure under the aegis of the Supreme Court.

As another hearing comes to a close, CJI Kapadia has taken yet another firm step towards ameliorating the conditions of the lower courts that remain the first point of contact between a majority of the citizens and the judiciary.