Kerala High Court
The Kerala High Court Advocates' ... vs State Of Kerala on 26 November, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939
WP(C).No. 17689 of 2015 (R)
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PETITIONER(S) :
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1. THE KERALA HIGH COURT ADVOCATES' ASSOCIATION,
REPRESENTED BY ITS SECRETARY, HIGH COURT BUILDINGS,
COCHIN 682 031.
2. THE KERALA HIGH COURT ADVOCATES' CLERK ASSOCIATION
REPRESENTED BY ITS SECRETARY, HIGH COURT BUILDINGS,
COCHIN 682 031.
BY SRI.K.JAYAKUMAR (SENIOR ADVOCATE)
ADVS. SMT.M.KABANI DINESH
SRI.SREEVALSAN.V
SMT.M.K.SHIMI
SMT.DIVYA C BALAN
SRI.D.SREENATH
RESPONDENT(S) :
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1. STATE OF KERALA,
REPRESENTED BY SECRETARYTO GOVERNMENT,
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2. KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY, VYDUTHI BHAVAN,
PATTAM, THIRUVANANTHAPURAM 695 001.
3. THE CHIEF ENGINEER,
KERALA STATE ELECTRICITY BOARD, VYDUTHI BHAVAN,
PATTOM, THIRUVANANTHAPURAM 695 001.
4. THE EXECUTIVE ENGINEER,
P.W.D ELECTRICAL DIVISION, THRISSUR 680 001.
5. THE ASSISTANT EXECUTIVE ENGINEER,
P.W.D ELECTRICAL SUB DIVISION, EDAPPALLY,
ERNAKULAM 682 024.
..2/-
..2..
WP(C).No. 17689 of 2015 (R)
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6. THE HIGH COURT OF KERALA,
REPRESENTED BY THE REGISTRAR GENERAL,
HIGH COURT BUILDING, COCHIN 31
7. THE PUBLIC WORKS DEPARTMENT,
REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
R1,R4,R5 & R7 BY GOVT.PLEADER SRI.MATHEW GEORGE VADAKKEL
R2 & R3 BY ADV. SRI.SUDHEER GANESH KUMAR R., S.C
R6 BY ADV. SRI.BABU PAUL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-11-2017, THE COURT ON 22-11-2017 DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 17689 of 2015 (R)
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APPENDIX
PETITIONER(S)' EXHIBITS :
P1: A TRUE COPY OF THE LETTER DATED 26.11.2008 BY
THE 6TH RESPONDENT TO THE 1ST PETITIONER.
P2: A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT DATED 22.06.2010.
P3: A TRUE COPY OF THE COMMUNICATION DATED 17.09.2010 ISSUED BY
THE 6TH RESPONDENT TO THE 1ST RESPONDENT.
P4: A TRUE COPY OF THE COMMUNICATION NO.52898/C2/2010/HOME
DATED 11.01.2012 ISSUED BY THE 1ST RESPONDENT TO
THE 6TH RESPONDENT.
P5: REPRESENTATION DATED 08.05.2012 SUBMITTED BEFORE
THE 1ST RESPONDENT BY THE 1ST PETITIONER.
P6: A TRUE COPY OF THE LETTER NO.39471/C2/2012/HOME DATED 01.11.2012
ISSUED BY THE 1ST RESPONDENT.
P7: A TRUE COPY OF THE APPEAL DATED 21.01.2013 PREFERRED BY
1ST PETITIONER.
P8: A TRUE COPY OF THE COMMUNICATION VIDE NO.9830/C2/2013/HOME
DATED 28.08.2014 ISSUED BY THE 1ST RESPONDENT.
P9: A TRUE COPY OF THE COMMUNICATION NO.64638/C2/2013/HOME
DATED 28.08.2014 ISSUED BY THE 1ST RESPONDENT TO
THE PETITIONER'S.
10: A TRUE COPY OF THE LETTER DATED 01.06.2015 ISSUED BY
THE 6TH RESPONDENT TO THE 1ST PETITIONER.
P11: A TRUE COPY OF THE LETTER DATED.02.06.2015 ISSUED BY
THE 6TH RESPONDENT TO THE 2ND PETITIONER.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R6(A): TRUE COPY OF THE LETTER DATED 01.02.2005.
EXHIBIT R6(B): TRUE COPY OF THE SKETCH.
EXHIBIT R6(C): TRUE COPY OF THE LETTER DATED 01.07.2006.
EXHIBIT R6(D): TRUE COPY OF THE LETTER DATED 26.11.2008.
EXHIBIT R6(E): TRUE COPY OF THE LETTER DATED 09.01.2009.
EXHIBIT R6(F): TRUE COPY OF THE LETTER DATED 13.03.2009.
WP(C).No. 17689 of 2015 (R)
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EXHIBIT R6(G): TRUE COPY OF THE LETTER DATED 06.04.2009.
EXHIBIT R6(H): TRUE COPY OF THE LETTER DATED 21.05.2009.
EXHIBIT R6(I): TRUE COPY OF THE LETTER DATED 23.12.2009.
EXHIBIT R6(J): TRUE COPY OF THE LETTER DATED 08.03.2010.
EXHIBIT R6(K): TRUE COPY OF THE LETTER DATED 25.06.2010.
EXHIBIT R6(L): TRUE COPY OF THE LETTER DATED 17.09.2010.
EXHIBIT R6(M): TRUE COPY OF THE LETTER DATED 11.01.2012.
EXHIBIT R6(N): TRUE COPY OF THE LETTER DATED 18.05.2012.
EXHIBIT R6(O): TRUE COPY OF THE LETTER DATED 21.06.2012.
EXHIBIT R6(P): TRUE COPY OF THE LETTER DATED 01.11.2012.
EXHIBIT R6(Q): TRUE COPY OF THE LETTER DATED 18.05.2013.
EXHIBIT R6(R): TRUE COPY OF THE LETTER DATED 01.06.2015.
EXHIBIT R6(S): TRUE COPY OF THE LETTER DATED 02.06.2015.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
'C.R.'
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).NO.17689 OF 2015 (R)
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Dated this the 22nd day of November, 2017
J U D G M E N T
The Kerala High Court Advocates' Association and the Kerala High Court Advocates' Clerks Association are the petitioners in this writ petition, where the challenge is against a communication issued by the State Government to the effect that the Government would waive the charges for supply of electricity to the space occupied by the petitioners in the Kerala High Court Complex up to a limit of 800 units per month [in the case of the 1st petitioner] and 200 units per month [in the case of the 2nd petitioner], and that, for the consumption in excess of the aforesaid limits, the petitioners would have to pay the charges for electricity supplied to them. The facts in the writ petition would indicate that the 1st and 2nd petitioners occupy certain portions of the ground floor, first floor and second floor of the High Court building. The charges for electricity and water supplied to the High Court building is paid by the High Court Administration from out of funds that are allocated to the High Court by the State Government. By Ext.P1 communication dated 26.11.2008, the 6th respondent High W.P.(C).No.17689/2015 2 Court Administration, issued notice to the 1st petitioner to remit the electricity charges attributable to the space occupied by it in the High Court building for the period from 11.2.2006 to September, 2008. In response to the said notice, the 1st petitioner preferred Ext.P2 representation before the 6th respondent seeking exemption from levy of such charges. The matter was thereafter taken up with the State Government, and, on the Government seeking the remarks of the 6th respondent in the matter, the latter, by Ext.P3 letter, informed the Government that the High Court had no objection in the Government considering a proposal for waiver of the charges for electricity consumed by the 1st and 2nd petitioners in respect of the space occupied by them in the High Court building. On a consideration of Ext.P3 letter of the 6th respondent, the Government, by Ext.P4 communication dated 11.1.2012, agreed to grant a partial waiver of the charges that were levied on the 1st and 2nd petitioners, on condition that there would be a limit on the average monthly electricity consumption, to the extent of 800 units per month for the 1st petitioner, and 200 units per month for the 2nd petitioner. Thereafter, although the petitioners approached the State Government through Ext.P5 representation dated 8.5.2012, seeking a W.P.(C).No.17689/2015 3 lifting of the ceiling of 800 units imposed, the said representation was not acceded to by the Government, which rejected the proposal by Ext.P6 communication dated 1.11.2012. An appeal preferred against the said decision was also rejected by Ext.P8 communication dated 29.5.2013. Thereafter, a further representation was attempted, which also did not meet with any success, since, by Ext.P9 communication dated 28.8.2014, the request was once again rejected. Thereafter, by Ext.P10 letter dated 1.6.2015 addressed to the 1st petitioner, and Ext.P11 letter dated 2.6.2015 addressed to the 2nd petitioner, the petitioners were asked to pay amounts for the period between June, 2013 and January, 2015, in respect of the consumption of electricity in excess of the ceiling limits imposed by the State Government. In the writ petition, Exts.P6, P8, P9, P10 and P11 are impugned inter alia on the contention that the Kerala High Court Advocates' Association and Kerala High Court Advocates' Clerks Association form an integral part of the judicial infrastructure necessary for administration of justice, and hence, they cannot be treated differently in the matter of waiver of electricity charges in respect of the electricity supply to the area occupied by them within the High Court building.
W.P.(C).No.17689/2015 4
2. A counter affidavit has been filed on behalf of the 6th respondent, wherein, a reference is made to the terms of the license agreement entered into between the 6th respondent and the petitioners, wherein, the petitioners have undertaken to pay the electricity charges including meter hire charges in respect of the electric supply made available to the area occupied by them in the High Court building. It is contended that the petitioners have agreed to bear the charges to the extent demanded by the Government. Reference is also made in the counter affidavit to the various letters sent by the 6th respondent to the State Government recommending the case of the petitioners for a waiver of electricity charges. In the counter affidavit filed on behalf of the 1st respondent, the stand taken is that the Government had considered the representations of the petitioners, and had agreed to the proposal for waiver of electricity charges in favour of the petitioners, and waived a substantial part of the charges subject only to the condition that the waiver would be limited to consumption up to 800 units per month for the 1st petitioner and 200 units per month for the 2nd petitioner. It is further stated that since the Government institutions/autonomous bodies pay their electricity charges by meeting budgetary allocations, it is not the W.P.(C).No.17689/2015 5 responsibility of Government to waive the arrears of electricity charges/provide free electricity to a private organisation, especially in the light of the stringent financial position of the State exchequer.
3. I have heard the learned senior counsel Sri. K. Jayakumar, duly assisted by Sri. Sreevalsan.V., for the petitioners, Sri. Mathew George Vadakkel, the learned Government Pleader for respondents 1, 4, 5 and 7, Sri. Sudheer Ganesh Kumar, the learned Standing counsel for respondents 2 and 3 and Sri. Babu Paul and Sri. K.P. Pradeep for the 6th respondent.
4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that the basic issue that needs to be considered in the instant case is whether the State Government can put a ceiling on the quantum of electricity that will be supplied free of cost, to those areas in the High Court building that are occupied by the petitioners herein? The charges for the electricity supplied, by the Kerala State Electricity Board Limited to the High Court building, are paid out of the funds allocated by the State Government to the High Court. The obligation of the State W.P.(C).No.17689/2015 6 Government, to provide the funds necessary to cover the administrative expenses of the High Court, is traceable to Article 229 of the Constitution. Article 229(3) clearly states that the administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of officers and servants of the court, shall be charged upon the consolidated funds of the State, and any fees or other moneys taken by the court shall form part of that fund. No doubt, in respect of certain decisions that have financial repercussions, a prior approval of the State Government is required, but this is seen as the specified exception to the general purport of Article 229, the provisions of which are designed to secure the independence of the judiciary - a basic feature of our Constitution. In matters of administration of the High Court, the views of the Chief Justice of the High Court are paramount. There cannot be any doubt whatsoever that the recommendations of the Chief Justice, on any matter touching upon the administration of the High Court, should ordinarily be approved by the State Government, and a refusal thereof, even in those exceptional cases where the State Government can, must be for strong and adequate reasons. (See: Union of India v. S.B. Vohra - [(2004) 2 SCC 150]). In the instant case, while the W.P.(C).No.17689/2015 7 petitioners had petitioned the High Court Administration, seeking free electricity to the areas occupied by them in the High Court building, and the said request found favour with the Administration, when the proposal was forwarded to the State Government for its acceptance, the State Government agreed to waive charges only up to the limit of 800 units per month, in the case of the 1st petitioner, and 200 units per month, in the case of the 2nd petitioner. There is no reason stated in the impugned communications as to why the State Government chose to put a cap on the usage of electricity by the petitioners. There are no reasons forthcoming in the counter affidavits filed on behalf of the State Government either. In my view, the State Government cannot, in the absence of cogent reasons, interfere with the recommendations of the Chief Justice, as communicated to it by the Registrar, in a matter concerning administrative expenses incurred by the High Court. The recommendation for waiver of electricity charges, in respect of the areas occupied by the petitioners in the High Court building, was made taking note of the role that advocates and their clerks play in the administration of justice in the State, and recognizing that the areas occupied by them in the High Court building cannot be seen as being used for purposes unconnected with W.P.(C).No.17689/2015 8 the administration of justice. The Supreme Court in Supreme Court Bar Association & Ors v. B.D. Kaushik - [(2011) 13 SCC 774], observed as follows while dealing with the relationship between Advocates Associations and the Courts to which they are attached;
"the Bench and the Bar are two wheels of a chariot and one cannot function without the other. The court-annexed Bar Association start with the name of the court as part of the name of the Bar Association concerned. The very nature of such a Bar Association necessarily means and implies that it is an association representing members regularly practising in the court and responsible for proper conduct of its members in the court and for ensuring proper assistance to the court. In consideration thereof, the court provides space for office of the association, library and all necessary facilities like chambers at concessional rates for members regularly practicing in the court, parking place and canteen besides several other amenities. In the functions organised by the court-annexed Bar Associations the Judges participate and exchange views and ascertain the problems, if any, to solve them and vice versa. There is thus regular interaction between the members of the Bar Association and the Judges. The regular practitioners are treated as officers of the court and are shown due consideration."
5. Much the same can be said of the 2nd petitioner clerks association, as, without their services, the Advocates cannot effectively discharge their duties as officers of the Court or as representatives of the litigating public. The petitioners have, therefore, to be seen as integral parts of the justice administration W.P.(C).No.17689/2015 9 and dispensation system of the State. I therefore quash Exts.P6, P8 and P9 decisions of the Government, and Exts.P10 and P11 consequential demand notices issued to the petitioners and declare that the State Government cannot seek to limit the expenses found to be in the nature of administrative expenses of the High Court, as determined by the Chief Justice, and allocated to the High Court from the Consolidated Fund of the State.
6. It might also be apposite, at this juncture, to observe that the High Court is an institution that exists in the hierarchy of judicial institutions that constitute the Judiciary in our country. In a nation that takes pride in calling itself a republic, governance is necessarily by the rule of law. The judicial institutions exist to safeguard the valuable constitutional rights, fundamental or otherwise, of the people of India and for the judicial institutions to function effectively as such guardians of rights, it is imperative for the State Governments to make available such funds as are necessary to maintain the judicial infrastructure within the State. In the discharge of its constitutional obligations, the State Government cannot remain unresponsive to reasonable requests by the Judiciary for infrastructural support, by W.P.(C).No.17689/2015 10 citing non-availability of funds. In Hussainara Khatoon and Others v. Home Secretary, State of Bihar, Patna - [AIR 1979 SC 1369]
- the Supreme Court held that the State Government cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The requirement of ensuring speedy trial, to under-trial prisoners languishing in jails for periods longer than what they would have been sentenced to, if convicted, was seen as a constitutional mandate to the State Government, and since the State Government was found to be shirking its responsibilities on the ground of paucity of funds, the Court felt it necessary, as the guardian of the fundamental rights of the people, to enforce the said fundamental rights by issuing necessary directions to the State Government to take positive action such as augmenting and strengthening of investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial. A similar view was taken by the Supreme Court in State of H.P v. H.P. State Recognised & Aided Schools Managing Committees and Ors. - [(1995) 4 SCC 507], while dealing with the obligations of the State W.P.(C).No.17689/2015 11 Government to provide grants-in-aid to schools and thereby provide free education to children up to the age of 14 years.
7. In the discharge of its judicial functions, the judiciary has necessarily to be independent. That this was the intention of our founding fathers is evident from a reading of our Constitution, which clearly envisages the independent functioning of the three arms of government, with a system of checks and balances to ensure adherence to its precepts. The independence of the judiciary that is envisaged in the Constitution, and is now seen as a basic feature of the Constitution, takes within its fold not only functional independence in the sense of freedom from interference of any kind in the discharge of judicial functions, but also institutional independence, where the institution does not have to be at the mercy of the other arms of government for its continued existence. A major facet of institutional independence concerns financial resources and this can be achieved only by conceding a degree of financial freedom and autonomy to the judiciary. While such financial autonomy is recognised in most democratic republics in the world, the situation is rather deplorable in our country. A consultation paper on Financial W.P.(C).No.17689/2015 12 Autonomy of the Indian Judiciary, that was published on 26.09.2001, by a National Commission, chaired by Justice H.R.Khanna, and constituted to review the working of the Constitution, examined the extent of financial autonomy conceded to the judiciary in various countries and lamented on the sad plight of the judiciary in our country while opining that the judiciary must be included separately in the plan prepared periodically by the Planning Commission, and a separate allotment had to be made to the judiciary by the Planning Commission and the Finance Commission. It was suggested that there be National and State Level Judicial Councils to deal with the overall needs including policy making and budgeting for the judiciary. The said councils were also to be given full freedom for re-appropriation of allocated funds from one head to another. It was felt that in the preparation of budgets for the Judiciary, inputs should be obtained from the judiciary and the budget finalised in consultation with the executive. The budgets, as finalised, could then be placed before the appropriate legislative body for finalization. It was felt desirable to have a convention whereby the budgets so finalised with the executive would be pushed through the legislature without any downward revision.
W.P.(C).No.17689/2015 13
8. A similar suggestion was, even earlier, put forward by the Law Commission of India in its 127th report on "Resource Allocation for Infrastructural Services in Judicial Administration" submitted on 14.06.1988. In a chapter aptly captioned "Financial Palliative for the Courts" it was observed as follows:
"4.2. Justice system does not stand high in the list of priorities for disbursal of public funds. Expenditure on administration of justice has still the dubious distinction of being styled as non-plan expenditure.
4.3. The salaries of Judges of the Supreme Court of India are a charge on the Consolidated Fund of India. Similarly, the salaries of the Judges of the High Court are a charge on the Consolidated Fund of the State. The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officer and servants of the Court, are also a charge upon the consolidated Fund of India. There is an analogous provision in respect of the administrative expenses of the High Court.
4.4. Except the funds charged on the Consolidated Fund of India or of State, some additional funds required by the Supreme Court or High Court for maintenance of its administrative establishment are required to be voted in Lok Sabha or State Assembly, as the case may be. In this respect, the court system is very much at the mercy of the Legislature because funds which are votable can be varied each year. Formally, the budget proposal may emanate from the Supreme Court or the High Court, as the case may be, but the W.P.(C).No.17689/2015 14 nodal Ministry in each case has hardly made an arrangement for a two way dialogue in respect of financial and management questions. After the budget is received from the Supreme Court of India or the High Court, amounts is in respect of votable items are re-set by the nodal Ministry. Some cuts and alterations take place at this end. The revised proposal is sent to the Finance Ministry which has its own constraints and riders and ordinarily what finally emerges and is placed in the hands of the Court in much less than not only what is proposed but what is the minimal requirement. In processing through the Departments which have no vision as to the essential requirements of the courts, the whole exercise becomes a bargaining event and the representative of the court, if at all consulted, may be a able to mould the situation both the ways depending upon his persuasive capacity. The hard fact that remains is that Judiciary has very little say touching the power of purse. And this aspect has consistently thwarted the growth and expansion of judicial services. This is a grey area fairly visible in the matter of relationship between the Executive and the Judiciary.
4.6. The jurists who prize independence of Judiciary have always lamented that the touchstone of judicial independence is the power of purse which unfortunately it sadly lacks. Every proposal, except the non-votable items, which entails financial liability emanating from the Judiciary can be implemented only if endorsed by the Executive. And in the priority of the Executive in the matter of distribution of its available resources, administration of justice is at a much lower rung of the ladder. The independence of the Judiciary can be seriously undermined if the requisite financial resources for its efficient and independent functioning are not made available. The arrears piled up at all levels in court's can be partly attributed to inadequate infra-structural facilities, which is compounded by lack of adequate and timely funding. Funding of courts is given little public attention and much of the Judiciary's independence is taken away sub silentio. The tragedy is that when the demands for grants are voted upon in relation to the nodal Ministry which W.P.(C).No.17689/2015 15 includes the budget proposals in respect of courts, that is, administration of justice, the members are not given information what requirements were advanced by the courts in their budget proposals and how nodal Ministry has tinkered with the same, the reasons for the same,and whether the restoration is possible. Further, the view of the Judiciary is not made available to Parliament. The case generally goes by default in the sense that the nodal Ministry becomes the final arbiter in respect of the requirements of the Judiciary. Apart from being unscientific, the third most important limb of the constitutional democracy, namely, Judiciary, has no say in the matter of disbursal of funds, including for its maintenance, sustenance, growth, expansion, etc. 4.11. Independence of Judiciary is one of the foremost concerns of the Constitution of India. A writer on constitutional law is of the opinion that independence of the Judiciary is one of the cardinal features of our Constitution. Fearless justice which can only emanate from independent Judiciary is a prominent creed of the Constitution and 'the Independence of the Judiciary is a fighting faith of our founding fathers'. Reverting to the same subject, it was observed that "the creed of judicial independence is our constitutional, 'religion' and if the Executive imperils this basic tenet, the court may do or die". To buttress this independency, it is now necessary to clothe the courts with power to determine its own requirements which, of necessity, must include the power to set up adequate number of courts and to appoint adequate number of Judges. If the power of purse remains with the Executive and the financial constraint is trotted out as an excuse to deny adequate financial resources for setting up additional courts, 'judicial independence becomes a teasing illusion' and a promise of unreality. The Constitution set up an independent Judiciary and it cannot be that while it vested it with powers over the persons and property of every citizen, it will deny to itself the consequential power to determine its own needs as to men and material. Continued efficient working of the Judiciary is W.P.(C).No.17689/2015 16 simple indispensable and essential for the balance of constitutional power.
4.12. The legislative appropriation and executive control over finances cannot be permitted to castrate or cripple the courts by refusing or reducing requisite grants and re-appropriations. To have the courts under the fiscal thumb of the Executive is in direct violation of the spirit of the Constitution. The courts are frequently called upon to pronounce on the acts of those who control public funds and, therefore, must be kept free in such cases without fear of retaliation, open or concealed. If independence of Judiciary is to be sustained, it must possess power over the purse. To refuse to provide adequate funds to the courts is to prevent them from discharging their constitutional responsibilities and, therefore, constitutes an encroachment upon the exclusive area of the Judiciary.
4.13. While undoubtedly, as pointed out hereinbefore, at least one of the Judges of the Supreme Court has expressed a view that a mandamus can be issued if the proposal to open or set up additional courts is rejected or negatived on extraneous or irrelevant considerations but in practical life it is rather inconceivable that the Judiciary should seek before itself a writ of mandamus against the Executive every time the situation demands it. A spirit of adjustment and compromise must inform the deliberations in this behalf. Some workable solution has to be devised so that the stringent, occasionally counter-productive, financial control of the Executive over the courts even in the face of legitimate pressing needs can be countered.
4.14. The Law Commission would like to suggest a working solution in this behalf. The Law Commission has already recommended setting up of the National Judicial Service Commission for dealing with problems of appointment of judicial officers at various levels, restructuring Judiciary by setting up Indian judicial Service, training of judicial officers, et al. This body can be entrusted W.P.(C).No.17689/2015 17 with additional task of determining and finalising the financial needs and budgets of the courts. National Judicial Service Commission itself may set up a new body, called the 'Finance Consultative Committee', which must undertake the task of periodically assessing financial needs of the Judiciary at various levels and it must have liaison with the Finance Ministry and ordinarily its recommendations must be accepted. The Committee may consist of -
(1) The Chief Justice of India in respect of the
Supreme Court or the Chief Justice of the High
Court in respect of the High Court;
(2) Administrative Judge of the High Court;
(3) Administrative Officer of the court in charge of
finance;
(4) Secretary,Ministry-in-charge of Judiciary; and
(5) Secretary, Ministry of Finance, Department of
Expenditure.
4.15. Ordinarily the budget should be proposed by the High Court or the Supreme Court, as the case may be. If the budget is to be approved, the matter should be referred to this Committee and it must finalise the same. This Committee will provide a meeting ground for an interaction and inter-facing between the representatives of the court and the executive branch and by sheer discussion and dialogue, consensus can be arrived at."
9. Considerable time has lapsed since the above-mentioned recommendations/suggestions were made and we are no closer to realizing the ideals set forth in those reports. As a matter of fact, a report published in 2016 by DAKSH, titled "The State of the Indian Judiciary", carries an article on "Budgeting for the Judiciary" by Surya Prakash B.S which throws some light on the present day problems W.P.(C).No.17689/2015 18 faced by the judiciary in various states. It notes that, in the light of the concerns expressed over the years, over low budgetary allocation to the judiciary, the 13th Finance Commission awarded a special grant of Rs.5000 crores over a period of five years (2010-2015) to both the Union and State Governments to be utilized for various purposes such as Operation of morning/evening/special shift courts, establishing Alternate Dispute Resolution (ADR) Centres and training of mediators/conciliators, Lok Adalaths, Legal Aid, Training of judicial officers, State Judicial Academies, Training of public prosecutors, creation of posts of court managers, maintenance of heritage court buildings. At the end of the five-year period, however, only 20% of the allocated funds stood utilized. To make matters worse, the 14th Finance Commission has dispensed with most centrally sponsored schemes and special grants, of which the grant to judiciary is also one. The onus of providing additional funds to meet the requirements of the Judiciary is, therefore, squarely on the State Governments. A comparison of the budgetary allocation made by various States, including Kerala, amongst the various social sectors, indicates that the highest allocation is for the Education Sector, followed by Health, Social Welfare and Judiciary, in that order. The low allocation for the W.P.(C).No.17689/2015 19 judiciary is likely to be on account of a defective budgeting exercise that is done to determine the actual financial need of the judiciary. As mentioned in the article, "the public discourse on judicial manpower requirements is fixated with the number of judges, without considering the fact that more judges would need more support staff for them to function efficiently and effectively. An attempt at understanding manpower requirements should also factor in how increased use of technology would change the human resource requirements both quantitatively and qualitatively". The time has probably come for practices to change and a more realistic view to be taken by the State Government while allocating funds for the judiciary.
10. This Court is of the view that the State Government must realize its constitutional obligation to address the problem of insufficient funds that today threatens to cripple the functioning of the Judiciary in our State. Prudence would dictate that immediate steps be taken to form a committee of the nature advocated by the Law Commission, at the State level, to examine the financial needs of the State Judiciary and to ensure that the State Judiciary gets what it W.P.(C).No.17689/2015 20 needs by way of infrastructural support. The Committee to be constituted should comprise of
(i) A nominee of the Chief Justice of the High Court.
(ii) The Chief Secretary of the State.
(iii) The Home Secretary of the State.
(iv) The Finance Secretary and
(v) The Law Secretary.
11. With a view to alerting the State Government to the problems faced by the judiciary, and to urge them to find a lasting solution to the said problems that have plagued the judiciary for some time now, I direct the Registry to communicate a copy of this judgment to the Chief Secretary of the State. The State Government shall consider the aspects highlighted in this judgment, with all seriousness, and with the maturity that is expected of a Constitutional functionary.
The writ petition is allowed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE prp/