REPORT NO.
99
PARLIAMENT OF INDIA RAJYA SABHA
DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE
NINETY NINTH REPORT ON ACTION TAKEN ON NINETY SIXTH REPORT OF THE COMMITTEE ON DEMANDS FOR GRANTS (2018-19) PERTAINING TO THE MINISTRY OF LAW AND JUSTICE
(Presented to the Rajya Sabha on 3rd January, 2019)
(Laid on the Table of Lok Sabha on 3rd January, 2019)
Rajya Sabha Secretariat, New Delhi January, 2019 / Pausa 1940 (Saka)
Website : http://rajya sabha.nic.in E-mail : [email protected]
CS (P & L) - 197
PARLIAMENT OF INDIA RAJYA SABHA
DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE
NINETY NINTH REPORT ON ACTION TAKEN ON NINETY SIXTH REPORT OF THE COMMITTEE ON DEMANDS FOR GRANTS (2018-19) PERTAINING TO THE MINISTRY OF LAW AND JUSTICE (Presented to the Rajya Sabha on 3rd January, 2019) (Laid on the Table of Lok Sabha on 3rd January, 2019)
Rajya Sabha Secretariat, New Delhi January, 2019 / Pausa 1940 (Saka)
C O N T E N T S
PAGES 1. COMPOSITION OF THE COMMITTEE (i)
2. INTRODUCTION (ii)
3. ACRONYMS (iii)
4. REPORT 1 - 32 (i) CHAPTER I 2 - 12 RECOMMENDATIONS/OBSERVATIONS WHICH HAVE BEEN ACCEPTED BY THE MINISTRY (ii) CHAPTER II 13 - 19 RECOMMENDATIONS/OBSERVATIONS WHICH THE COMMITTEE DOES NOT DESIRE TO PURSUE IN VIEW OF THE REPLIES GIVEN BY THE MINISTRY (iii) CHAPTER III 20 - 30 RECOMMENDATIONS/OBSERVATIONS IN RESPECT OF WHICH COMMITTEE HAS NOT ACCEPTED REPLIES OF THE MINISTRY (iv) CHAPTER IV 31 - 32 RECOMMENDATION/OBSERVATIONS IN RESPECT OF WHICH FINAL REPLIES OF THE MINISTRY HAVE NOT BEEN RECEIVED
5. RECOMMENDATIONS/OBSERVATIONS OF THE COMMITTEE AT A GLANCE 33 - 36
6. RELEVANT MINUTES OF THE MEETING OF THE COMMITTEE 37 - 38
COMPOSITION OF THE COMMITTEE (Re-constituted on 1st September, 2018)
1. Shri Bhupender Yadav Chairman
RAJYA SABHA 2. Shri Swapan Dasgupta 3. Shri Prabhat Jha 4. Shri Majeed Memon 5. Shri D. Raja 6. Dr. K. Keshava Rao 7. Shri Sukhendu Sekhar Ray 8. Shri V. Vijayasai Reddy 9. Dr. Subramanian Swamy 10. Shri Vivek K. Tankha
LOK SABHA 11. Shri Tariq Anwar 12. Dr. Sanjeev Kumar Balyan 13. Shri Kalyan Banerjee 14. Shri Sharadkumar Maruti Bansode 15. Shri Abu Hasem Khan Choudhury 16. Shri (Adv.) Joice George 17. Shri Pralhad Venkatesh Joshi 18. Choudhary Mehboob Ali Kaiser 19. Shrimati Meenakashi Lekhi 20. Shri Bhagwant Mann 21. Shri B.V. Naik 22. Shri Vincent H. Pala 23. Shri Natubhai Gomanbhai Patel 24. Shri Vitthalbhai Hansrajbhai Radadiya 25. Shri Rajiv Pratap Rudy 26. Dr. Anirudhan Sampath 27. Shri Ram Prasad Sarmah 28. Shri V. Panneer Selvam 29. Shri M. Udhayakumar 30. Shri Anshul Verma 31. Shri Kaushal Kishore SECRETARIAT Shri P.P.K. Ramacharyulu, Secretary Shri K.P. Singh, Joint Secretary Shri Ashok K. Sahoo, Additional Director Smt. Goutam Kumar, Deputy Secretary Shri Mohammad Amin Ansari, Assistant Research Officer
(i)
INTRODUCTION
I, the Chairman of the Department related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, having been authorized by the Committee to present the Report on its behalf, do hereby present this Ninety-ninth Report on Action Taken on Ninety-sixth Report of the Committee on Demands for Grants (2018-19) pertaining to the Ministry of Law and Justice.
2. The Ninety-sixth Report of the Department related Parliamentary Standing Committee on Personnel, Public Grievances and Pensions, Law and Justice was presented to Rajya Sabha and laid on the Table of Lok Sabha on 14th March, 2018.
3. The Ministry of Law and Justice (Legislative Department, Department of Justice and Department of Legal Affairs) furnished the Action Taken Replies on the Ninety-sixth Report of the Committee on 8th June, 13th August and 24th October, 2018, respectively. The Committee considered the draft Report and adopted the same in its meeting held on 27th December, 2018.
4. For the facility of reference and convenience, the observations and recommendations of the Committee have been printed in bold letters in the body of the Report.
New Delhi BHUPENDER YADAV 27th December, 2018 Chairman, Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice
(ii)
ACRONYMS
A2J Access to Justice A2J-NEJK Access to Justice –NE and J&K ADR Alternate Dispute Resolution AIJS All India Judicial Service ATR Action Taken Report BCI Bar Council of India COS Committee of Secretaries CSS Centrally Sponsored Scheme ECI Election Commission of India ECIL Electronics Corporation of India Limited EPIC Electoral Photo Identity Cards EVMs Electronic Voting Machines ICADR International Centre for Alternative Dispute Resolution ICPS Institute of Constitutional and Parliamentary Studies ICT information and Communication Technology ILDR Institute of Legislative and Drafting Research ILI Indian Law Institute ITAT Income Tax Appellate Tribunal LAN Local Area Network MHA Ministry of Home Affairs MNREGA Mahatma Gandhi National Rural Employment Guarantee Act NALSA National Legal Services Authority NHPC National Hydroelectric Power Corporation NIC National Informatics Centre NIOT National Institute of Ocean Technology NJA National Judicial Academy OLW Official Language Wing SLP State Litigation Policy SPV Special Purpose Vehicle UNDP United Nations Development Programme UC Utilization Certificates WAN Wide Area Network
(iii)
R E P O R T The Action Taken Report of the Committee deals with the action taken by the Ministry of Law and Justice on the recommendations/observations of the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its Ninety-sixth Report on the Demands for Grants (2018-19) of the Ministry. The Report was presented to Rajya Sabha and laid on the Table of Lok Sabha on the 14th March, 2018. 2. The Action Taken Replies of Legislative Department, Department of Justice and Department of Legal Affairs, Ministry of Law and Justice in respect of the recommendations contained in the above mentioned Report were received on 8th June, 13th August and 24th October, 2018, respectively. However, it is pertinent to mention that Action Taken Replies relating to Election Commission of India are still awaited inspite of reminder from Secretariat. Replies of the Departments have been categorized as follows: Chapter – I : The recommendations/observations which have been accepted by the Ministry i.e., in respect of paras 3.4, 3.5, 3.6, 5.7, 5.14, 5.18, 5.27, 6.10, 6.11, 6.20, 6.29, 6.45, 6.71, 6.73, 6.75, 6.80 and 6.91 of the Report. The Committee is pleased to note that the Ministry has accepted its recommendations. Chapter – II : The recommendations/observations which the Committee does not desire to pursue in view of the replies given by the Ministry i.e., in respect of paras 5.5, 5.28, 6.72 and 6.85 of the Report. The Committee has accepted the explanations furnished by the Ministry and does not wish to pursue them further as of now. Chapter – III : The recommendations/observations in respect of which Committee has not accepted replies given by the Ministry i.e., with regard to paras 3.7, 5.6, 5.13, 5.34, 5.46, 6.36, 6.37, 6.70 and 6.79 of the Report. The Committee expresses its concern for not accepting the recommendations of the Committee dealt with in Chapter – III of this Report and reiterates its recommendations. Chapter – IV – The recommendations/observations on which final replies of the Ministry of Law and Justice have not been received. The Committee expresses its deep concern that it did not receive the replies from the Election Commission in respect of Committee's recommendations. Similarly, the reply of Department of Justice was not received in respect of Committee recommendation vide paras 6.53, 6.88 and 7.2. The Committee desires that Legislative Department/Election Commission of India should furnish action taken report in respect of recommendations mentioned in Chapter – IV without any further delay.
1 CHAPTER - I RECOMMENDATIONS / OBSERVATIONS WHICH HAVE BEEN ACCEPTED BY THE MINISTRY LEGISLATIVE DEPARTMENT Recommendation/Observation of the Committee 1.0 There are twenty two languages specified under VIII Schedule of the Constitution which includes six classical languages i.e. Tamil, Sanskrit, Malayalam, Kannad, Telugu and Odia. Article 343 stipulates that the official language of the Union shall be in Hindi in Devanagri Script and English. The Official Language Act, 1963 and the Official Language Rules, 1970, promotes use of Hindi progressively in official work in addition to English. Article 345 of the Constitution mentions that official languages of a State may one or more languages or Hindi or English. Article 120 of the Constitution mentions that the business in Parliament shall be transacted in Hindi or in English. Similarly Article 210 mentions that the business in the legislature of a State shall be transacted in the official languages of the State or in Hindi or in English. Article 351 cast duty upon the Union Government to promote Hindi having special reference to composite culture of India and for its vocabulary reliance is placed primarily on Sanskrit and secondarily on other languages. Article 350 gives a constitutional right to every citizen of the country to send petition to any authority of the Union or the State in any languages used in the Union or in the State as the case may be. (Para 3.4) 1.1 Out of twenty two languages specified in VIII Schedule of Constitution. The Legislative Department brings out authoritative texts of Constitution in sixteen languages. Those are Assamees, Bengali, Gujarati, Hindi, Kannad, Telugu, Tamil, Kashmiri, Konkari, Malayalam, Marathi, Punjabi, Odia, Urdu, Sindhi, Sanskrit and Nepali. The Legislative Department is responsible for translation of Central Legislation both supreme and subordinate in languages mentioned in VIII Schedule of the Constitution. The Constitution of India also needs to be made available in those languages. The Legislative Department in their submission informed the Committee that the updated diglot edition of Constitution is to be published, while Constitution in other languages have not yet been updated in other languages. The Committee, therefore, exhorts the Department to expedite authoritative translation of Constitution and other Central Legislation complied on Bharat Sanhita (India Code ) for popularisation of law amongst people speaking those languages. (Para 3.5) Action Taken / proposed to be taken by the Department 1.2 So far the Constitution of India has been translated and published in 15 languages i.e. Assamese, Bengali, Gujarati, Kannada, Malayalam, Marathi, Odia, Punjabi, Tamil, Telugu, Urdu, Sanskrit, Sindhi, Nepali and Konkani apart from Hindi. The work of Publishing the Constitution of India in Dogri language is at an advanced stage and likely to be published shortly. The translation and publication of Central Acts as Authoritative Texts into eleven regional languages i.e. Assamese, Bengali, Gujarati, Kannada, Malayalam, Marathi, Odia, Punjabi, Tamil, Telugu, Urdu is being done in close collaboration and cooperation of the respective State Government through their Agencies/Departments under their control. Four more languages i.e. Konkani, Manipuri, Nepali and Santhali have been added but the
2 recruitment of Officers of these languages is still underway. The suggestion of DRSC has been noted and the Department will expedite the translation of Constitution and other Central Legislations.
Committee’s further observation 1.3 The Committee notes the reply of the Department. Recommendation/Observation of the Committee 2.0 The Constitution (One Hundred and Thirteenth Amendment) Bill, 2010 changed the name of Orissa to Odisha and the Oriya language to Odia. However, in the Annual Report, 2017-18 of the Ministry old nomenclature is still used. The Department is accordingly, recommended to update and use the new nomenclature in future reports. (Para 3.6) Action Taken / proposed to be taken by the Department 2.1 The recommendation has been noted and in future Annual Reports new nomenclature ‘Odisha’ and ‘Odia’ will be used.
Committee’s further observation 2.2 The Committee notes the reply of the Department.
DEPARTMENT OF LEGAL AFFAIRS Recommendation/Observation of the Committee 3.0 The Committee observes that Rs. 70 crore has been allocated to Income Tax Appellate Tribunal (ITAT) under the Budgetary sub-head ‘Capital Outlay’ in BE 2018-19 but the same will not be sufficient and may affect the construction work of the ongoing projects. It has an additional requirement of funds to the tune of Rs. 47 crore. The Committee recommends that the budgetary allocation for acquisition of land and construction of building for ITAT under the Major head 4070 should be enhanced from Rs. 70 crore to Rs. 117 crore in RE 2018-19 so that their projects are not stalled. The Committee also notes that under this sub-head, the pace of utilization of funds by ITAT has been slow over the years, leading to steep reduction of funds at the RE stage. The Budget allocation for 2017-18 was Rs. 71 crore, which was reduced at the RE stage to Rs. 31 crore. ITAT has been able to utilize only 43.98% of the funds allocated in RE 2017-18 up to 5th February, 2018. The Committee, therefore, recommends that the ITAT and the Department should ensure proposed projects timely commence, and there should be strict monitoring of their progress and the pace of expenditure, so as to avoid fund reduction at the RE stage by the Ministry of Finance. (Para 5.7) Action Taken / proposed to be taken by the Department 3.1 The construction of building office and other capital assets are undertaken by ITAT under the “Capital Outlay” Budget. The approval, financing and monitoring of such capital projects is done by ITAT, in close concert with CPWD, the implementing agency specified
3 by the Government. All out efforts are made to ensure implementation of construction of projects and utilization of allocated money therefor, on time. In addition, the phasing of expenditure as per the projects pace of implementation is also done to ensure optimal utilization of allocated funds. This inter-alia, include strict monitoring of project progress and pace of expenditure, as also noted by the Committee. Keeping in view in the dynamic nature of these projects, given the fact that the acquisition of land and construction of building is dependent on various external factors also, the consequent expenditure forecasting, though not predictable, is kept on leash by close monitoring. As recommended by the Committee, ITAT have further assured to take utmost care and coordination, in advance, with CPWD to fully utilize allocations under Capital Outlay Budget for the year 2018-19.
Committee’s further observation 3.2 The Committee notes the reply of the Department. Recommendation/Observation of the Committee 4.0 The Committee expresses it serious concern over the acute shortage of officers in the Department, Particularly of the ILS cadre. The Indian Legal Service (ILS) officers are the Principal Legal Advisers to the Government and play a pivotal role in both advisory as well as in drafting work and their persistent shortage is sure to affect adversely the functioning of the Government. The Committee, accordingly, recommends that the causes responsible for this state of affairs should be identified and proactive steps, including expediting the amendment of Indian Legal Service Rules, 1957, must be undertaken to fill up the existing vacancies in a time bound manner. Present pace of efforts to fill up vacancies is inadequate and an effective mechanism in consultation with the concerned agencies like DoPT, UPSC and SSC, should be evolved for timely filling of vacancies. The Committee further suggests that the Department should proactively pursue the court cases for early decisions. Further, in the Action Taken Replies to this Report, the Committee may be informed about the timelines for filling up of vacancies in different grades in the Department. (Para 5.14) Action Taken / proposed to be taken by the Department 4.1 There are four grades in Legal Adviser Cadre of ILS namely Joint Secretary & Legal Adviser (JS & LA), Additional Legal Adviser, Deputy Legal Adviser, and Assistant Legal Adviser. The Department of Legal Affairs has able to fill three posts of JS & LA through direct recruitment and one by deputation in the year 2017-18. Presently, the Department of Legal Affairs has requested the UPSC to fill up of the 6 vacancies in the grade of JS & LA (through Direct Recruitment) and the process is in final stage. Hopefully, these vacancies are likely to be occupied by the end of this year. A proposal for diversion of 8 posts of Additional Legal Adviser grade from promotion quota to DR quota was taken up with DoP&T by Department of Legal Affairs, however the same has not been agreed to so far. Apart from this, a proposal for filling up of two posts of Addl. Legal Adviser by DR quota is also under litigation. However, the UPSC had recommended name of one candidate but the said person on being subsequently selected as JS & LA in this Department has joined the said post. Further, Ministry of Finance, Department of Expenditure have issued order No. 752985/2018/E.Coord.I dated 13th April, 2018 regarding filling up of vacant posts by downgradation on account of non-availability of eligible officers in feeder grade. In
4 pursuance of these orders, some of the posts of Additional Legal Adviser level may be temporarily downgraded to the DLA level and filled by promotion of eligible Assistant Legal Advisers. The amendment to the ILS Rules, 1957 is also being considered to ensure the timely filling of vacancies and prevent unnecessary litigation.
Committee’s further observation 4.2 The Committee notes the reply of the Department.
LAW OFFICERS Recommendation/Observation of the Committee 5.0 The Committee observes that of the total sanctioned strength of 25 Law Officers, 9 posts (36%) are presently laying vacant, including the post of Solicitor General of India, who is second law officer of the country and assists the Attorney General of India. The Law Officers are entrusted with the responsibility of advising the Government of India on legal matters referred to them; appearing before the Supreme Court and any High Court on behalf of the Government of India in cases in which the Government of India is concerned as a party or is otherwise interested; representing the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution, etc. In view of such important duties entrusted to them, the Committee feels that it is vital for the Government to fill these vacancies expeditiously so that its functioning is not affected adversely. (Para 5.18) Action Taken / proposed to be taken by the Department 5.1 The Department of Legal Affairs has since filled up 3 (three) posts of Law Officers (Additional Solicitor General) in the Supreme Court of India. After some time one of these 3 (three) newly appointed Law Officer (ASGs) has resigned. One of the Additional Solicitor General of India has been appointed as Solicitor General of India. As such, presently 7 (seven) post of Law Officers are vacant. However, the Department will soon fill the vacant posts of Law Officers.
Committee’s further observation 5.2 The Committee notes the reply of the Department.
INCOME TAX APPELLATE TRIBUNAL (ITAT) Recommendation/Observation of the Committee 6.0 The Committee observes that as per the data provided by the Department, a large number of vacancies exist in the Income Tax Appellate Tribunal across the board. This is a long standing issue and is a matter of services concern, particularly with respect to vacancies in the post of Members of the Tribunal. The Committee fails to understand why no solution has been found to deal effectively with this problem even after so many years. The Department has itself admitted that due to vacancy in the posts of Members, some of the
5 Benches are not functioning regularly, resulting in increases pendency. The Committee expresses its dismay over this state of affairs and urges the Government to analyse the causes responsible for the perennial problem of shortage of manpower in the Tribunal and take immediate remedial measures to fill the vacancies in a time bound manner so that the Tribunal functions optimally. Also, in the Action Taken Replies on the recommendations contained in this Report, the Department should submit a roadmap for filling of vacancies in the post of Members well in time to ensure that all the Benches of the Tribunal can function regularly. (Para 5.27) Action Taken / proposed to be taken by the Department 6.1 The Government has taken in recent past, pro-active remedial measures to lessen the shortage of man power in the ITAT, as also highlighted by the Committee. The Department has taken the selection of President and Vice-President in ITAT to its logical conclusion, after following due procedure through stipulated post of Members were thoroughly analysed and examined. The Government had invited applications for appointment of 21 posts of Judicial Member and 16 posts of Accountant Members in the ITAT in July, 2018. The Selection process in this regard is undertaken to fill up all existing vacancies in the post of Member in ITAT in the short term. Apart from inviting application for filling of the 37 post of Members (Judicial/Accountant) in the ITAT, eleven (11) more members of the ITAT has been authorized to sit singly for hearing of appeals involving assessed income upto Rs. 50 lakhs under Section 255 (3) of the Income Tax Act, 1961. 6.2 During the year, the Selection Committee to recommend candidates to the post of Vice President in ITAT had submitted its recommendations. Taking in to the consideration of the recommendation of the Selection Committee, the Appointment Committee had approved the appointment of 07 Vice-Presidents in the ITAT. Accordingly, 07 Vice- President, have been appointed in the ITAT. During the year, Mr. Justice P.P. Bhatt, former Judge of the Hon’ble High Court of Gujarat, has been appointed as President of the ITAT. On the recommendations of the Departmental Promotion Committee 10 officials of the ITAT has been promoted to the post of Assistant Registrar in the ITAT.
Committee’s further observation 6.3 The Committee notes the reply of the Department.
DEPARTMENT OF JUSTICE E-COURTS MISSION MODE PROJECT (MMP) Recommendation/Observation of the Committee 7.0 The e-Courts Mission Mode Project is being implemented to put in place a justice delivery system with efficiency, accessibility, affordability and is also more transparency. The Committee notes that there is a shortfall Rs. 268 crore in BE 2018-19 allocations for this Project. Inadequate funding would adversely affect the implementation of important components of the Project, leading to delays in its completion. The Committee, therefore, recommends that adequate funds may be provided for the Project so that it is not stalled and
6 accomplishes its set targets and timelines. The Committee, further, recommends that periodic evaluation of the project be carried out so as to make timely intervention, if any, needed for completion of the project, as scheduled. (Para 6.10) Action Taken / proposed to be taken by the Department 7.1 The process of floating a request for proposal by Department of Justice for evaluation of e-Courts Mission Mode Project is under progress.
Committee’s further observation 7.2 The Committee notes the reply of the Department. Recommendations/Observations of the Committee 8.0 The Committee is apprised that the National Judicial Data Grid provides a variety of information to the litigants and judicial administration at various levels for Case Management and Court Management. The Judicial administration of High Courts and District Courts can make use of it for policy planning on cases and Court management, equal and sufficient work to judicial officers, planning for more courts, human resources, infrastructure, etc. It has feature to evaluate judges’ performance. The Committee feels that this could potentially be an important breakthrough for judicial administration at various levels. The Committee suggests that the Department should constitute a suitable body to analyse the data and put it to use so that the Grid serves the purpose of unclogging the system. (Para 6.11) Action Taken / proposed to be taken by the Department 8.1 As per Policy & Action Plan document of the eCourts Project, the project now needs to move towards more comprehensive and in-depth analysis of the huge treasure of data available on NJDG. The e-Committee, Supreme Court of India is working on Data Analytics and its implementation through software. Being highly technical and specialized, NIC has arranged a training course for technical teams of the project on data analytics.
Committee’s further observation 8.2 The Committee notes the reply of the Department.
SCHEMES OF ACTION RESEARCH AND STUDIES ON JUDICIAL REFORMS Recommendations/Observations of the Committee 9.0 The Committee observes that though the allocation for the Project in BE 2018-19 has been doubled from that BE 2017-18; however, there is still a shortfall of Rs. 3.5 Crore from the projected amount. The reduced allocation may impact the activities proposed in the project in FY 2018-19, which centre around developing capacities of marginalized people to secure justice and supporting justice delivery organization in serving people better. The Committee, therefore, recommends that adequate funds should be made available at RE state
7 for the Project in FY 2018-19 so that the activities proposed under the Project are not hampered. (Para 6.20)
Action Taken / proposed to be taken by the Department 9.1 At the RE stage, the requirement of funds will be re-assessed after considering the expenditure already incurred in FY 2018-19, projects under implementation, anticipated expenditure for the remaining period of the FY 2018-19. Additional funds, as required, shall be sought from the Ministry of Finance at RE stage.
Committee’s further observation 9.2 The Committee notes the reply of the Department.
CENTRALLY SPONSORED SCHEMES FOR DEVELOPMENT OF INFRASTRUCTURE FACILITIES FOR THE JUDICIARY Recommendations/Observations of the Committee 10.0 The Committee appreciates the activities under the Centrally Sponsored Scheme for Infrastructure Development for Subordinate Judiciary and is of the view that infrastructure development of courts is critical for timely delivery of justice. The Committee observes that for achieving the measurable targets of construction of 1000 court halls and 600 residential units per year, the Government has approved an outlay of Rs. 3,320 crore for three years (Rs 1000 crore for 2017-18, Rs 1110 crore for 2018-19 and Rs 1210 for 2019-2020). However, so far reduced allocations have been made for the Scheme. In 2017-18, there was a shortfall of around Rs 370 crore and in BE 2018-19, it is Rs 480.80 crore. The Committee feels that such a huge reduction in allocation for this Scheme would make it impossible to achieve the measurable targets, which would ultimately affect the justice delivery system. The Committee, accordingly, recommends that the allocation under the CSS may be suitably enhanced at the RE Stage so that the activities under the scheme do not suffer. (Para 6.29) Action Taken / proposed to be taken by the Department 10.1 The observations of the Committee have been noted. Proposal for enhancement of allocation under the CSS Scheme will be taken up with Ministry of Finance at RE Stage.
Committee’s further observation 10.2 The Committee notes the reply of the Department.
NYAYA MITRA PROGRAMME & TELE LAW PROJECT Recommendations/Observations of the Committee 11.0 The Committee appreciates the new initiatives of Nyaya Mitra Programme, Tele Law Project and Pro Bono Legal Service Scheme launched by the Government to improve access to justice and feels that all the three schemes are conceptually strong. As these initiatives are
8 presently at a nascent stage, their true potential would only be known in the coming times. However, the Committee recommends that the Government should take all necessary steps, including providing adequate financial backing, to make these schemes successful on the ground level. (Para 6.45) Action Taken / proposed to be taken by the Department 11.1 Nyaya Mitra, Tele-Law and Pro Bono Legal services were launched as part of the Access to Justice Schemes being implemented by Department of Justice. A comprehensive review of these initiatives has been undertaken. Based on consultations with various stake holders, several improvements in each of these initiatives are being made which includes preparing a revised scheme for Nyaya Mitra, preparing a dashboard for Tele Law to make the programme more effective, targeted and useful to the beneficiaries; and development of mobile app for Pro Bono Legal service.
Committee’s further observation 11.2 The Committee notes the reply of the Department. Recommendations/Observations of the Committee 12.0 The Committee, therefore, recommends that NALSA should re-examine the ground realities and take all necessary measures, like establishment of Legal Services Clinics in all the jails, appointment of adequate number of remand advocates, working with under trial Review Committee in close coordination, to ensure that the constitutional rights of these prisoners are protected from the stage of first remand itself and the prisoners are decongested. (Para 6.71) Action Taken / proposed to be taken by the Department 12.1 NALSA is committed to providing of the free legal services to the prisoners in custody. Number of persons in custody who have been provided legal aid during the year 2015-16, 2016-17 and 2017-18 are 65093, 1, 12,948 and 1, 47,662, respectively. Year after year, there is an increase in the number of Legal Services Clinics in jails. It is pertinent to mention that only around 68 significantly small jails remain where Legal Services Clinics are yet to be started, and NALSA has instructed State Legal Services Authorities to complete the process. However, in the said jails, as mentioned in para 6.71, legal services are provided and the various activities are carried out for the prisoners. There are regular visits of the Panel Lawyer, Secretary, DLSA in the jails. District Judges, who are also the Chairperson of the DLSA visit the jails so that they become familiar with the ground reality and take remedies accordingly. UTRCs are headed by the District & Session Judges, who are also the Chairperson of the DLSAs. In addition, Secretary, DLSA is also a member of the Committee, and hence, Legal Services Authorities are aware of the ground realities and take appropriate actions permissible under the law of land. Legal Services Authorities also ensure that during remand, proper and effective representation is provided to the unrepresented accused.
Committee’s further observation 12.2 The Committee notes the reply of the Department.
9 Recommendations/Observations of the Committee 13.0 The Committee notes that the projected demand of NALSA has been curtailed by Rs.60 crore, which may affect the working during the current financial year. Furthermore, human resources constraints may have impact on its functioning. The Constitutional commitment of the State to afford equal opportunity to all to secure justice may be hampered due to inadequacy of funds or human resources constraints. The committee, therefore, recommends that the Government should appropriately enhance Grants-in-aid made available to the Authority and also take immediate measures to fill vacant posts so that the activities of NALSA do not suffer. (Para 6.73) Action Taken / proposed to be taken by the Department 13.1 Enhancement of budgetary allocation to NALSA will be considered at the time of Revised Budget Estimates 2018-19.
Committee’s further observation 13.2 The Committee notes the reply of the Department.
SECOND NATIONAL JUDICIAL PAY COMMISSION (SNJPC) Recommendations/Observations of the Committee 14.0 The committee is happy to note that the Government has constituted the second National Judicial Pay Commission to examine the pay/emoluments/service conditions of subordinate judiciary in the country. The objective of the Commission for bringing parity amongst the judges (5927) in subordinate courts of similar rank across the States is laudable, The Committee is of the view that the recommendations of the Commission would help in strengthening subordinate judiciary, thereby promoting judicial efficiency and administration in the country. (Para 6.75)
Action Taken / proposed to be taken by the Department 14.1 The Second National Judicial Pay Commission (SNJPC), which was appointed on 16/11/2017, has since submitted its Interim Report on 14.03.2018. The Commission is expected to give its final report within next six months.
Committee’s further observation 14.2 The Committee notes the reply of the Department. Recommendations/Observations of the Committee 15.0 The Committee is pained to note that huge pendency of cases exists in the Subordinate Judiciary. The pendency is highest in the States of Uttar Pradesh (6161,822), Maharashtra (33,36,574), West Bengal (17,70,820), Bihar (16,58,292) and Gujarat (16,41,355). The Committee in its Sixty-seventhReport on the Infrastructure Development
10 and Strengthening of Subordinate Courts (2014) expressed its serious concern over the large number of vacancies existing in the Subordinate Courts and recommended that vacancies of judicial officers need to be filled-up as both vacancy of judicial officers and pendency of cases are closely related to each other. The Committee further recommended that regular conducting of morning / evening, holiday courts, lok adalats, alternative dispute redressal mechanisms, etc., wherever feasible, can help in reducing the problem of pendency of cases in Subordinate Judiciary. Sincere efforts are also required on the part of State governments to fill the existing vacancies in the Subordinate Courts, so that the disposal rate of cases may be enhanced. (Para 6.80) Action Taken / proposed to be taken by the Department 15.1 Filling up of vacant posts in Subordinate Judiciary is the responsibility of the State Governments and respective High Courts. Government has requested the High Courts and State Governments to prepare an Action Plan to fill up vacancies in subordinate Judiciary. Some of the main factors responsible for pendency of cases in courts are increasing number of state and central legislations, accumulation of first appeals, continuation of ordinary Civil Jurisdiction in some of the High Courts, vacancies of Judges, appeals against orders of quasi- judicial forums going to High Courts, number of revisions / appeals, frequent adjournments, indiscriminate use of Writ Jurisdiction, lack of adequate arrangement to monitor, track and bunch cases for hearing.
Committee’s further observation 15.2 The Committee notes the reply of the Department.
REPRESENTATION OF WOMEN IN JUDICIARY Recommendations/Observations of the Committee 16.0 Since Independence, only 6 women judges have been appointed in the Supreme Court of India, first being in 1989. The Committee, accordingly, desires that the Bench of Higher Judiciary be reflective of composition of the society and its diversity and recommends that suitable measures be taken to include more and more Women judges in both Higher and Subordinate Judiciary. Certain States like Bihar (35 percent), Andhra Pradesh (33.33) Odisha (33.33), Telangana (33.33, Assam (30 percent), Rajasthan (30 percent) Tamil Nadu (30 percent), Karnataka (30 percent), Uttrakhand (30), Uttar Pradesh (20 percent) and Jharkhand (5 percent) have introduced reservation for women in subordinate judiciary. The Committee is further of the view that quota of supernumerary (over and above the actual intake) as done in the case of Indian Institute of Technology may be replicated in the admission of five year law programmes, particularly in the National Law Universities. The Committee reiterates the recommendation in its Eighty-fourth Report on the Demands for Grants (2016-17) that the strength of women judges should be around 50 percent of the total strength of the judges. The Committee desires that the Department should request the State Governments to introduce quota for women in Law Universities and subordinate judiciary recruitment. (Para 6.91)
11 Action Taken / proposed to be taken by the Department 16.1 There are 73 Women Judges working in different High Courts as on 23.03.2018, which in percentage terms is 10.89% of working strength. The appointment of Judges of the Supreme Court and the High Courts are made under Articles 124 and 217 of the Constitution of India, which does not provide for reservation for any caste, class or gender of persons. Therefore, no caste or class-wise data relating to High Court Judges is maintained. The Government has, however, been requesting the Chief Justices of the High Courts that while sending proposals for appointment of Judges, due consideration be given to suitable candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and Women. This is being done to ensure a fair representation of different sections of the society in the Higher Judiciary. There is no proposal for amendment in Articles 124 and 217 of the Constitution. 16.2 The appointment of judicial officers in subordinate judiciaries is the responsibility of the State Governments and respective High Courts. However, the Department, vide letter dated 03.08.2018, has conveyed the observation of the Parliamentary Standing Committee to High Courts and State Governments. 16.3 Further, the subject matter regarding reservation for women in Law Universities and Legal Education is within the domain of Department of Legal Affairs. Department of Legal Affairs, vide letter dated 03.08.2018, has been asked to request State Governments to introduce quota for women in Law Universities and Subordinate Judiciary recruitment. A statement indicating the strength of women Judges in the High Courts is placed below.
Committee’s further observation 16.4 The Committee notes the reply of the Department.
12 CHAPTER - II RECOMMENDATIONS / OBSERVATIONS WHICH THE COMMITTEE DOES NOT DESIRE TO PURSUE IN VIEW OF THE REPLIES GIVEN BY THE MINISTRY DEPARTMENT OF LEGAL AFFAIRS Recommendation/Observation of the Committee 1.0 The Committee notes that the Department proposes to take some steps aimed towards curtailment of legal cases on behalf of the Union of India and its Organisations, Departments, etc. and requires budgetary support for the same. The Committee recognizes that the Government and its various agencies are the predominant litigants in courts and tribunals in the country. It feels that all necessary steps must be taken to reduce Government litigation in courts so that valuable court time is spent in resolving other pending cases so as to reduce average pendency time. In view thereof, the Committee recommends that adequate budgetary support should be provided to the Department to formulate and implement the proposed Legal Research and Education Promotion Development Scheme (LREPDS). (Para 5.5) Action Taken / proposed to be taken by the Department 1.1 The Department of Legal Affairs is thankful for the Committee’s recommendations for adequate budgetary support to the Department for the proposed Legal Research & Education Promotion Development Scheme (LREPDS) in consultation with the different stakeholders, a new LREPD scheme has been evolved to facilitate intervention in legal policy framework, through deliberations & formulation of policy proposals to strengthen the arbitration mechanism, legal professional institutions, enforcement of contracts and creation of conducive ecosystem for early settlement of court cases and disputes in the country, especially commercial cases, etc. The scheme also envisage creation of knowledge products through legal policy research studies, survey, data banks, strengthening of assets and resources in legal training and education areas, advocacy, etc. and dissemination of knowledge through conduct of seminars and conferences, imparting training to officials in Department of Legal Affairs etc. to facilitate development of legal research and education. 1.2 The proposed scheme also aims to promote Legal Information Management and Briefing System (LIMBS), to ensure effective data sharing, monitoring and curtailment of legal cases on behalf of the Union of India and its Organisations, Departments, etc. through web based applications including Online Dispute Resolution (ODR). The successful implementation of the Legal research and education promotion development scheme (LREPDS) will i. Strengthen quality of research in Law Universities/Institutions particularly in the emerging field of law and in the global context. ii. facilitate efforts to reform administration of justice and law in application to the various aspects related to the social, economic and other needs of the citizen.
13 iii. promote the diffusion of the knowledge of law its administration and principles by suitable means to all stakeholders. iv. promote the efforts of simplification, systematization and elucidation of law by undertaking necessary study/project on the subject. v. aid the publication of research/project paper/reports at domestic and international level. vi. skill up-gradation of Advocates. vii. undertake documentation of important legal material. viii. aid in efforts to Universities/Research institutions to renovate the legal education system, and publish research studies in the form of books and reports. ix. stablish Chair in legal research Institute/National Law Universities of repute. x. encourage by suitable means academic competitiveness amongst the Indian universities to bring overall improvement in the quality of research and legal education in the country. The LREPD scheme is being further actively examined for seeking requisite administrative and financial approval as per extant rules.
Committee’s further observation 1.3 The Committee notes the reply. The Committee is optimistic that Legal Research & Education Promotion Development Scheme (LREPDS) envisaged by the Department will help in curtailment of litigation, besides promoting legal research and education. The Committee may be apprised of the implementation, including bottleneck if any, of LREPDS during the deliberations on the Demand for Grants 2019-20.
INCOME TAX APELLATE TRIBUNAL Recommendation/Observation of the Committee 2.0 The Committee notes that between 2004-05 and 2009-10, the disposal rate was much higher than the number of cases instituted. The trend reversed between 2010-11 and 2014-15. The again from 2015-16 onwards the rate of disposal has been higher than the institution rate, as a result of which pendency has come down from more than 1 lakh cases in 2014-15 to around 92,000 cases as on the 31st December, 2017. The Committee observes that though, with the existing strength of Members, the pendency is not growing but a huge backlog of cases continues to exist, which is a cause of serious concern. The Committee has been informed of the series of measures being taken by the Tribunal to reduce pendency of cases and that in this financial year up to 31st December, 2017, an average of 50 appeals have been disposed of by each Member of the Tribunal, which though is an improvement but is not commensurate with the disposal is not likely to make a major dent in the backlog cases and without improving incumbency of Members, the pendency situation is likely to remain grim. Besides, there could be other factors also contributing to the pendency in the Tribunal. The
14 Committee recommends that the Department should undertake a comprehensive cause analysis exercise for this state of affairs and take remedial measures urgently so that the pendency shows substantial improvement and the Tribunal truly lives up to its motto of ‘Nishpaksh Sulabh Satvar Nyay’, which means impartial, easy and speedy justice. In the Action Taken Replies to this Report, the Committee would like to be apprised of the findings of the above exercise and the impact of the measures being taken by the Tribunal, as stated above, to reduce pendency. (Para 5.28) Action Taken / proposed to be taken by the Department 2.1 The ITAT has informed that all the Benches of ITAT have been instructed to scrutinize and identify the cases which are covered by decisions of ITAT, High Courts and the Supreme Court and to post them on priority basis. This includes group and small matters. The Bars are also requested to bring to the notice of ITAT, all such covered cases for out of turn posting. Besides, Search & Seizure cases and Appeals u/s 263 are also being given priority in their disposal. Further, vide Finance Act, 2016 an amendment in Income Tax Act, 1961 have been made that the appeal involving assessed income upto Rs. 50 Lakhs can be heard by Single Member Bench and accordingly the same has been implemented. In this regard, it is submitted that in August 2018, the Government has authorized eleven (11) more members of the ITAT to sit singly for hearing of appeals involving assessed income upto Rs. 50 Lakhs under section 255 (3) of the Income Tax Act, 1961. The ITAT has also implemented the use of information technology for early disposal of appeal by introducing e- court i.e. hearing through video conferencing. ITAT has also informed that in order to improve the disposal of appeals and stay granted matters, following decisions have been taken in the Vice-President Conference held on 8th & 9th September, 2017 at ITAT, New Delhi: “(a) Improvement in the disposal of appeals: The President, ITAT had expressed his concern over the low disposal of appeals by the Members. It has been decided that all the Members should give the required disposal i.e. 50 appeals, per month and the Vice-President or the Senior Members of the respective zones should ensure that Members in their zones give requisite disposals of appeals. (b) To ensure disposal of stay granted matters within a period of 180 days in which stay is granted: It has been decided that the stay granted appeals should be disposed of within a period of six months and the adjournments in stay granted matters should not be given for more than a month. All efforts should be made to dispose of the stay granted matters within the prescribed period. It has also been decided that constitution of regular Benches should be framed for the whole week i.e. five days and the stay applications should be heard by the respective Bench on Friday. (c) Sending of regular touring Benches at non-functional Benches: It has been decided that the touring Benches should be sent to all non-functional Benches regularly, so that pendency of appeals in such Benches does not pile up.”
15 As regard cause analysis for High Pendency in ITAT, ITAT has informed that they are making regular efforts for reduction in the pendency and also tries to analyze the cause for high pendency. ITAT found that after the globalization of economy many multinational companies have come to India and started the business. Therefore, now a substantial portion of litigation before the ITAT is relating to international tax issues which are complicated in nature, time-consuming and also have high stakes. Usually, for hearing one such appeal, the time taken is several times more than the time taken in deciding the other average appeal. However, as suggested by the Committee, the ITAT has informed that they would further hold a tripartite meeting i.e., the meeting between the ITAT, Income Tax Department and the ITAT Bar Association so as to find ways and means to speed up the disposal of appeals. The ITAT assures the Committee that all efforts would be made to ensure that pendency is reduced as early as possible.
Committee’s further observation 2.2 The Committee notes the reply of ITAT. However, the Committee feels establishing and running ITAT in various parts of the country requires financial and physical support on the part of Government, and therefore, is of the view that performance appraisal mechanism must be developed by the Department of Legal Affairs to assess the performance of individual members and each ITAT Benches, thereby, developing a ranking mechanism for ITATs, at National level to identify and address the problems of underperforming ITATs.
DEPARTMENT OF JUSTICE Recommendations/Observations of the Committee 3.0 In most cases lawyers without much experience are empanelled who do not understand the complexity of the crime. Also, in most cases the prisoners are unaware of who is representing them and at what stage their case is. The Committee had expressed displeasure over the quality of lawyers empanelled for providing legal aid in its Ninety-first Report also. NALSA has informed that various steps are being taken to appoint competent lawyers, including proposed amendment to the NALSA Free and Competent Legal Services Regulations, 2010. The Committee also notes that the fee of the panel lawyers has been recently enhanced by all SLSAs. It is a welcome step but the Committee feels that it still may not be lucrative enough to attract talented lawyers. The Committee feels that a lot more still needs to be done to attract talented lawyers and, therefore, recommended that NALSA should take proactive measures to ensure that only competent lawyers are appointed on the panel. The Committee also suggests that the performance of the lawyers already on the panel should be reviewed periodically for improved results. (Para 6.72) Action Taken / proposed to be taken by the Department 3.1 A Committee was constituted by NALSA for preparation of guidelines for selection of efficient and committed Panel Lawyers. The Committee had submitted its report to the Central Authority (NALSA) chaired by Hon’ble Chief Justice of India and Hon’ble
16 Executive Chairman, NALSA and other Members of the Central Authority who have accepted the amendments suggested in the report of the Committee. These amendments relating to NALSA (Free and Competent) Regulations, 2010 will be notified by NALSA. The amendments include:- (i) Evolving criteria keeping in view the competence, integrity and suitability and experience of lawyers under consideration for empanelment so that competent lawyers are empanelled. (ii) Periodical training for panel lawyers (iii) Setting up of Monitoring and Mentoring Committee for close monitoring of the court based legal services rendered and the progress of the cases in the legal aided matters and to guide and advise the panel lawyers. (iv) Enhancement of honorarium payable to the Retainer Lawyers. 3.2 Selection process has been improved, and amendments in the Free and Competent Regulations 2009 have been also made to enable empanelment of Senior and other capable lawyers. NALSA has devised Two Training Modules for Training of Panel Lawyers. The Third Module is also ready for release. Another training Module for Probation Officers and Legal Aid Lawyers attached to Juvenile Justice Boards has been prepared. The purpose of these training Modules is to enhance the skills and competency of the panel lawyers. Regular trainings are being conducted for Panel Lawyers. NALSA has conducted training of Master Trainers. These Master Trainers provide training to the Panel Lawyers through-out the country. During the year 2017, 893 training programmes for panel lawyers were conducted by the State Legal Services Authorities across the country.
Committee’s further observation 3.3 The Committee notes the reply. The Committee feels that NALSA/SLSA should evaluate the performance of panel lawyers engaged every year and accordingly, eliminate underperforming lawyers and ensure that only competent lawyers are appointed on the panel.
VACANCIES AND PENDENCY OF CASES IN SUPREME COURT AND HIGH COURTS Recommendations/Observations of the Committee 4.0 The Committee is concerned with the large number of vacancies of Judges in High Courts and also took note of problem in its Eighty-seventh and Ninety-first Reports. The vacancy of judges in very high in High Courts of Allahabad (56), Karnataka (38), Calcutta ( 39), Punjab& Haryana (35), Telangana & Andhra Pradesh (30) and Bombay (24). The Committee notes that the guidelines laid in the Supreme Court Advocates-on-Record Association and another vs. Union of India (1993), popularly known as Second Judges Case, for the appointment of judges are not being adhered to by the High Courts, which is the responsibility of the Supreme Court in its administrative side to direct the concerned High Courts to initiate the process of filling up the vacancies in advance. The Committee is of the
17 view that to reduce pendency of cases, the existing vacancy positions of judges need to be filled up immediately and the vacancies arising in future should be filled strictly as per the guidelines in the Second Judges Case. The Committee in its Eighty-seventh Report on “Inordinate Delay in Filling up the Vacancies in the Supreme Court and High Courts” recommended for raising the age of retirement of Supreme Court judges to 67 years and of High Court judges to 65 years. The Committee again reiterates its recommendation as it feels that it would help in retaining the existing judges, which in turn would help in reducing both vacancy and pendency of cases in the short run. (Para 6.85) Action Taken / proposed to be taken by the Department 4.1 The Judges of the Supreme Court are appointed by the President after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose. In the case of appointment of a judge other than the Chief Justice of India, the Chief Justice of India is always required to be consulted (vide Article 124 (2) of the Constitution).The Judges of the High Courts are appointed by the President after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court (vide Article 217(1) of the Constitution).The appointment of Judges in the Supreme Court and High Courts is a continuous and collaborative process of the Judiciary and Executive. While every effort is made to fill vacancies expeditiously, vacancies keep on arising on account of retirement, resignation or elevation of Judges and increase in Judge Strength. 4.2 All appointments of Judges of Supreme Court and High Courts are being made as per the existing procedure framed consequent to Supreme Court judgment in Supreme Court Advocate on Record Vs. UOI reported vide (1993) 4 SCC 441 and Special Reference No. 1 of 1998, RE (1998) of SCC 739. As per the MoP, the initiation of proposal for appointment of Judges in the Supreme Court vests with the Chief Justice of India, while initiation of proposal for appointment of Judges in the High Courts vests with the Chief Justice of the concerned High Court. As per the existing Memorandum of Procedure, the following timelines has been prescribed: Activities Timelines Proposal to be initiated by Chief Justice of High Court 6 months before occurrence of vacancy Chief Minister/ Governor to recommend proposal received Within six weeks from the Chief Justice of High Court Chief Justice of India/Supreme Court Collegiums to Within four weeks recommend the proposal to MLJ Recommendations of CJI to PM for advising the President Within three weeks for approval
4.3 However, the timeline for initiation of the proposals for filling up of vacancies in High Courts is rarely adhered to by the High Courts. The Supreme Court in its Judgment dated 23rd February, 2018 in Writ Petition(C) No. 835 of 2017 in Sunil Samdaria vs Union of India has inter-alia taken note of undue delay in filling up of vacant posts of Judges and directed all stakeholders including High Courts for filling up of vacant post in time bound manner. Hon’ble
18 Supreme Court has further directed to keep hope and aspirations of litigants alive and to fulfill the commitment of providing speedy justice, the process of appointment of Judges needs to be done expeditiously. 4.4 The Judge strength of the Supreme Court (including the Chief Justice of India) is 31. As on 23.3.2018, 24 Judges are in position, leaving 7 vacancies of Judges to be filled. As on 23.03.2018 against the sanctioned strength of the High Court Judges of 1079, 670 Judges are in position, leaving 409 vacancies of Judges to be filled. The position on appointments of Judges made in Supreme Court and High Courts during 2016-2018 (till 23.02.2018) is as under:
2016 2017 2018 Judges appointed in the Supreme Court 04 05 = -- Appointment of Chief Justices 14 08 = 04 Transfer of Chief Justices 04 -- = 01 Judges appointed in the High Courts *126 115 = 11 Additional Judges made Permanent in High Courts *131 31 = 66 Additional Judges given fresh term 22 05 = 01 Transfer of Judges 33 05 = 01 New posts of Judges created in High Courts #173 -- = -- [* Highest ever in a given year]
[ #new posts created in 78 (2014) + 60 (2015)+ 35 (2016)]
4.5 The Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 which provided for increasing the retirement age of High Court Judges from 62 years to 65 years was introduced in the Lok Sabha on 25.08.2010. The Bill could not be taken up for consideration and passing in the Parliament and lapsed with the dissolution of the 15th Lok Sabha. There is no proposal to extend the retirement age of the High Court Judges from 62 to 65 years and Supreme Court Judges to 67 years.
Committee’s further observation 4.6 The Committee is of the view that vacancy positions of judges need to be filled up immediately and the vacancies arising in future should be filled strictly as per the guidelines in the Second Judges Case and the directions of the Supreme Court of India in the Sunil Samdaria vs. Union of India (2018). The Committee feels that timeline of six weeks given to Chief Minister/ Governor as informed in the Action Taken Replies of the Ministry may be reduced to expedite the process of appointment of judges. The Committee also feels since there is no proposal to raise the retirement age of judges in higher judiciary by the Government, unnecessary delay in recruitment of judges should be avoided at any cost.
19 CHAPTER - III RECOMMENDATIONS/OBSERVATIONS IN RESPECT OF WHICH COMMITTEE HAS NOT ACCEPTED REPLIES OF THE MINISTRY LEGISLATIVE DEPARTMENT Recommendation/Observation of the Committee 1.0 The Committee also recommends the Department to use simple day to day vocabulary in Hindi, wherever possible, and simplify the legal terminology for the understanding of the common people of the country. The Department may also explore the possibility of creating a separate webpage where all the Acts/Ordinances/Rules translated by it in regional languages are available. The Committee further recommends the Department to recruit more language officers or engage experts or consultants so that legal texts and documents could be simplified and translated in regional languages for the understanding of the common people. (Para 3.7) Action Taken / proposed to be taken by the Department 1.1 As per the recommendation of the Committee, the Official Languages Wing is simplifying the legal terminology being used for preparing the Hindi texts of Acts/Ordinances/Rule etc. New words have been incorporated into the legal glossary which are easily understood by the general public. The Department has redesigned the webpages of Official Languages Wing and latest parliamentary enactments are being posted/hosted it on a regular basis. Legislative Department is recruiting more and more Regional Language officers so that legal documents could be simplified and translated into Regional Languages.
Committee’s further observation 1.2 The Committee notes the reply. However, the Committee feels that Department should prepare a blueprint for future work to be undertaken in the area of translation of Acts/Ordinances/Rules etc. and also expedite the recruitment of Regional Language officers and engagement of experts or consultants, so that the translation work of the Department doesn't suffer due to shortage of manpower. The Committee wishes to be apprised of further action taken in this regard. Recommendation/Observation of the Committee 2.0 The Committee also notes that Department in its written replies to the questionnaire has submitted that at present, there is no specific policy in vogue on litigation. A ‘National Litigation Policy’ was drafted in the year 2010 but has not been finalized so far. At present, it is under active consideration of the Government. The Committee recommends that the ‘National Litigation Policy’ should be finalized and implemented by the Government on a priority basis to reduce delays and arrears in the system in order to achieve the objectives of the National Mission for Justice Delivery and Legal Reforms. (Para 5.6)
20 Action Taken / proposed to be taken by the Department 2.1 Formulation of fresh National Litigation Policy is under the consideration of the Department of Legal Affairs and its finalization will take place only when all stakeholders are in a position to implement it.
Committee’s further observation 2.2 The Committee would have appreciated had the department firmed up the plan and action to formulate the National Litigation Policy (NLP). The Department is therefore again, suggested to expedite preparation of a concrete road-map in the implementation of NLP and it should also apprise the Committee about the development during the deliberations on the Demands for Grants (2019-20). Recommendation/Observation of the Committee 3.0 The Committee observes that there is an overall shortage of manpower of around 25% in the Department and the situation is even worse in the ILS cadre, where around 37% of the posts are laying vacant. The Committee notes that this is a perennial problem in the Department and the Committee had recommended for urgent redressal of the causes responsible for this state of affairs in its Ninety-first Report also. Further, the Committee infers from the reply of the Department that the remedial actions being taken by it are not yielding the desired results and there are still huge vacancies existing in the Department. (Para 5.13) Action Taken / proposed to be taken by the Department 3.1 The Department of Legal Affairs has vacant posts in the various cadres of Central Secretariat Services (CSS), Central Secretariat Stenographers Service (CSSS), Central Secretariat Clerical Service (CSCS), Central Secretariat Official Language Service (CSOLS) and Indian Legal Services (ILS). The vacancies in CSS, CSSS, CSCS and CSOLS are filled up on the basis of nomination received from the Department of Personnel and Training (DoP&T) in respect of CSS, CSSS, CSCS and Department of Official Language (DoOL) in respect of CSOLS. The shortage of manpower in the posts belonging to CSS, CSSS, CSCS and CSOLS cadres is due to non-receipt of nomination from DoP&T and DoOL in spite of repeated reminders. As regard ILS cadre vacant post, the vacant posts in the whole hierarchy of Legal Adviser Cadre due to litigation at the level of Deputy Legal Adviser (DLA) since 2012. Now, the litigation has been resolved as the Supreme Court has delivered its judgement in SLP(C) No. 24215/ 2017 on 18.05.2018. As a result, offers have been issued to 06 officers at DLA level on direct recruitment (DR) basis and two of them have joined; while 12 Departmental Assistant Legal Advisers (ALAs) have been promoted as DLAs on regular basis. The resultant vacancies on account of promotion of ALAs will be filled by promotion of Superintendent (Legal) and some of these may be taken up to the UPSC for direct recruitment, as per quota. As regard direct recruitment in the grade of Deputy Legal Adviser (DLA), subsequent to the UPSC recommendations offer of appointment have been sent and six candidates who may also joint the Department in next two months.
21 Committee’s further observation 3.2 The Committee infers from the reply that no progress has so far been made with regard to filling up of posts to be filled up from CSS, CSSS CSCS and CSOLS cadres. The Committee fails to understand why nominations could not be made by DoPT. If this continues, posts are not likely to be filled up at all. The Committee impress upon both DoPT and Department of Legal Affairs to resolve this issue and then apprise the Committee. As regards, ILS cadre posts some progress appears to have been made. The Committee however expresses its serious concern over the vacancy positions and litigations relating to it and of the view that Department of Legal Affairs being Law Department of the Union of India should have foreseen the legal implications before starting recruitment process. The Committee, recommends that the Department needs to be cautious in its approach and should take all necessary steps for filling up the vacancy positions, so that the work of Department is not hampered. Recommendation/Observation of the Committee 4.0 The Committee applauds the Indian Law Institute for the quality legal research work being done by it. However, the Committee fails to appreciate the reluctance of the Institute to become fully self-sustainable even after six decades of its establishment and more than a decade after being granted deemed university status. The Committee notes that there has been persistent shortage of Teaching and Non-teaching staff in the Institute but in the year 2017- 18, only the post of Librarian was advertised. The Committee notes with dismay that the Institute in not making any serious efforts to fill vacant positions and is content to work with the existing staff strength. It is not inclined to introduce more academic programmes and has also informed that it has reduced the number of courses offered for greater emphasis on research activities. The Committee feels that the Institute will not be deviating from its objective of promoting and conducting legal research by expanding its academic activities. On the contrary, it will be fulfilling its objective, which is also to promote the improvement of legal education, and to impart instruction in law and allied fields. The Committee reiterates that the vacant positions in ILI should be filled-up immediately so that it is able to expand its activities and move in the direction of becoming a self-sustaining Institute, and avoid being a permanent drag on public funds. However, Government funds may continue to be provided for a limited period till it becomes fully self-sustained. As regards the request of the Institute that it may be accorded the status of ‘Institute of National Importance’, the Committee recommends that the Department of Legal Affairs should examine the issue and share its opinion with the Committee. (Para 5.34) Action Taken / proposed to be taken by the Department 4.1 The strengthening of Indian Law Institute (ILI), through accordance of the status of “Institute of National Importance” require enhancement of its physical, financial, institutional and academic assistance and resources. This would also facilitate the institute to become fully self-sustainable for working in the areas of quality legal research and academics. As of now, it is difficult for the institute to introduce for academic courses due to space constraints and lack of infrastructure without any further scope for internal resources augmentation. ILI has informed that at present, the Institute manage to generate Rs. 4 Crore by itself from fee, rent, sale of publications etc. and it seems difficult for the Institute introduce more academic
22 courses due to space constraints and lack of infrastructure and there is very less scope for the Institute to earn more revenue for its activities. However, the Institute has assured to take necessary steps for filling up the faculty positions to improve research activities and to enhance the stature of the Institute at par with International Law Schools. Further, as suggested by the Committee, the institute will explore more avenues for expansion of its activities both in terms of academic as well as infrastructure development. ILI is one of the pioneer in legal research and academic, however, due to limited resources and assets for the present, the proposal to give INI status to ILI require in depth analysis of its resources.
Committee’s further observation 4.2 The Committee feels that Indian Law Institute’s (ILI) infrastructural requirements and shortcomings should be evaluated by a third party to assess its actual requirements. The Committee recommends the ILI to fill-up vacant positions on priority basis and inform the action taken by it during the current financial year on the issue. The Department is further requested to examine the issue of Institute of National Importance (INI) demand of ILI and furnish report to the Committee during the deliberations of the Demands for Grants (2019-20). Recommendation/Observation of the Committee 5.0 The Committee is of the view that Notaries are an important link in the judicial system and provide cost effective services to public for various basic services viz., verification, authentication, certification of documents, etc. in the country. The Committee is, therefore, despondent to note that nation-wide more than 5000 vacancies of Notaries exist under the Central Government quota. The data shows that 11 States/ UTs do not have a single notary appointed and in most other States/ UTs also, there are huge vacancies. However, the Government is not taking any proactive measures to fill them. The vacancies are not even advertised and the interested candidates need to apply suo motu for the notariship. Further, the Committee also observes that the entire process of appointment of Notaries from application stage to issue of Certificate of Practice takes an inordinate time; from interview to selection alone, this period is almost 2-3 years. This state of affairs is completely unacceptable and the Department should take immediate action to remedy the problem, starting by advertising all the vacancies. Further, a reasonable time frame should be decided to complete the entire process of selection of notaries and issue of Certificate of Practice. The renewal of Certificate of Practice should also be done in a time bound manner. Just because the Notaries Act, 1952 and Notaries Rules, 1956 do not prescribe specific time limit for the exercise, it does not mean that the Department can unduly delay the entire process, thereby causing hardship to the common people. The Committee recommends that the Department should take immediate measures, including the ones suggested above, to fill the existing vacancies in the notaries in a timely manner. The Committee would like to be apprised of the progress made in this regard in the Action Taken Replies of the Department to this Report. (Para 5.46) Action Taken / proposed to be taken by the Department 5.1 The Notaries Act & Rules do not provide for publishing of advertisement. However, suggestion of the Committee has been noted. Further, as no application/ memorial has been received from the 11 States. In the past, we have conducted interviews for the States of Punjab, Haryana, Karnataka, Gujarat, Uttar Pradesh, Uttarakhand, West Bengal, Odhisha,
23 Bihar, Jharkhand, Rajasthan, Tripura, Meghalaya and Assam. It is also submitted that from interview to issue of certificate, it normally takes 2 to 3 months. 5.2 In this regard, it is also submitted that initially Quota of maximum number of notaries to be appointed by the Central Government as well as State Government/ Union Territory Administration was fixed vide Notification dated 09.05.2001 by inserting Schedule under rule 8(4A) of the Notaries Rules. Thereafter, the Schedule has been amended from time to time and number of notaries to be appointed by the Central Government as well as State Government/ Union Territory Administration has been increased and hence, these increased vacancies are unfilled. 5.3 Under Section 5(1) (b) of the Notaries Act appointment of notaries is for a period of five years and under Section 5(2) of the Notaries Act subsequent renewal is for a period of five years at a time which is a continuing process. This Department is in receipt of applications for appointment as Notary in large number. This Department also receipts of large number of applications for renewal, extension of area, change of area, RTI matters, Public Grievances and has to face court cases, etc. Since appointment of notaries is a continuing process as such it may be impractical for this department to fix a time frame for completing the entire process of selection of notaries and issue of Certificate of Practice. However, best efforts are being taken by this Department to do the best and Committee’s view will be taken on priority in the best possible manner within legal framework and capacities.
Committee’s further observation 5.4 The committee is of the view that Notaries are important link in the judicial system. Their large vacancy positions, along with delay in appointment and renewal, portray the half-hearted actions of Department in the appointment of Notaries. The Notaries Act, 1992 and Rules framed thereunder doesn't specifically call for issuing of advertisement for appointment of Notaries, however, it also doesn't bar the Department to issue advertisement for appointing notaries. Continuance of such state of affairs is pathetic. The Committee recommends the Department to streamline its process to fill- up vacancies of Notaries. Further, no dedicated mechanism is available to deal with the grievance of candidates on the Department’s website. The Committee also recommends the Department to establish a dedicated cell and publicize the contact details of officers/staffs dealing with the Cell so as to resolve the grievance of the candidates, Action taken in this regard may be apprised to the Committee during the deliberations on the Demands for Grants (2019-20). DEPARTMENT OF JUSTICE GRAM NYAYALAYAS Recommendations/Observations of the Committee 6.0 The pace of establishment of Gram Nyayalayas has been very slow; only 343 Gram Nyayalayas have been notified by 11 States so far and out of these only 210 are functional in 9 States. The Committee has been expressing concern regarding this state of affairs for a long time. The Committee has been of the view that delegation of responsibility to establish Gram Nyayalayas to High Courts and State Governments in the Conference of Chief Justices of
24 High Courts and Chief Ministers of the States since 2013 has not seen any heartening improvement. Therefore, in its Ninety-fourth, the Committee had suggested that the Department should explore a tri-partite model so that expertise of the Department could also be utilized in establishing Gram Nyayalayas. The Committee also notes that the Evaluation agency of the Scheme, National Productivity Council, has recommended for continuation of the Scheme with detailed operational guidelines, enhanced central assistance and improved monitoring mechanisms. (Para 6.36) 6.1 The Committee feels that though the institution of Gram Nyayalayas have not achieved the objectives of either speedy disposal or inexpensive justice for the poor so far but can still succeed if concrete, well planned and continuous efforts are made. The Committee, therefore, suggests that the recommendations of the National Productivity Council for preparation of detailed operational guidelines, enhanced central assistance and improved monitoring mechanisms should be implemented immediately. The Committee also reiterates its recommendation that the Department should explore a tripartite model so that expertise of the Department could also be utilized in establishing Gram Nyayalayas. (Para 6.37) Action Taken / proposed to be taken by the Department 6.2 In terms of Section 3 (1) of the Gram Nyayalayas Act, 2008, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts. As per information made available by State Governments / High Courts, 343 Gram Nyayalayas have been notified so far by 11 States, out of these, 210 are operational in nine States at present.
Sl. No. State Gram Nyayalayas Notified Gram Nyayalayas Functional 1 Madhya Pradesh 89 89 2 Rajasthan 45 45 3 Karnataka 2 0 4 Orissa 22 14 5 Maharashtra 39 24 6 Jharkhand 6 1 7 Goa 2 0 8 Punjab 2 1 9 Haryana 2 2 10 Uttar Pradesh 104 4 11 Kerala 30 30 343 210
6.3 The difficulties faced by States in setting up of Gram Nyayalayas were discussed in the meeting of the Law/Home Secretaries and Registrar Generals of the High Courts held on 19 - 20 April, 2012. One of the main reasons for the slow pace has been the request by the States for more financial assistance. Besides, response of the Bar, reluctance of police officials and other State functionaries to invoke jurisdiction of Gram Nyayalayas, non- availability of notaries and stamp vendors and more importantly, problem of concurrent
25 jurisdiction of regular courts, are other issues highlighted by the States which are coming in the way of speedy operationalization of the scheme. As per decision taken in the Conference of Chief Justices of High Courts and Chief Ministers of the States on 7th April, 2013 it is left to State Governments and High Courts to set up Gram Nyayalayas wherever feasible, taking into account their local problems.
Committee’s further observation 6.4 The Committee does not appreciate the manner in which the establishment of Gram Nyayalayas has been taken up by the Government. Gram Nyayalayas Act was primarily enacted to ensure inexpensive and speedies justice to the people at their door steps but it is unfortunate that after a decade of the passage of Gram Nyayalayas Act, in 2008, only 343 Gram Nyayalayas are notified, and out of which only 210 are in functional position. The Committee is not happy with the current pace of implementation of Gram Nyayalayas and feels that the delegation of power to establish Gram Nyayalayas to respective State Governments and High Courts taken in the Conference of Chief Justices of High Courts and Chief Ministers way back in 2013 have not yielded the desired result and the continuance of existing state of affairs in every likelihood defeat the very purpose for which the Gram Nyayalayas Act was enacted. The Committee accordingly, reiterates its views contained in the Demand for Grants (2018-19) and recommends the Department to explore the tripartite model to expedite the establishment and operationalisation of Gram Nyayalayas and also recommends the Department to apprise the Committee during the deliberations on the Demands for Grants (2019-20) of the steps taken by it, year wise since the financial year 2013-14, to establish and operationalize gram Nyayalayas in the country.
NATIONAL LEGAL SERVICES AUTHORITY (NALSA) Recommendations/Observations of the Committee 7.0 As per the Two Hundred and Sixty Eight Report of the Law Commission, 67 percent of India’s prison inmates are under trial prisoners, who are presumably innocent according to law. A majority of them (70.60 percent) are illiterate or semiliterate and belong to socio- economically marginalized groups. This has led to overcrowding of prisons and violation of basic rights of prisoners. The Committee has been apprised of the various measure being taken/proposed to taken by NALSA for under trial prisoners and convicts in jails, which include establishment of Legal Services Clinics in about 1070 jails to provide effective legal services, appointment of 9563 remand advocates, working with under trial Review Committee for release of prisoners who are entitled to statutory bails, etc. Legal Aid is a Constitutional imperative under Articles 14, 21 and 39 (A) of the Constitution of India. More so, Legal Services Act, 1987 has been enacted with a view to provide legal aid and services to the indignant and vulnerable sections of the society and promote legal awareness amongst them. To the query of the Committee about the non-availability of Legal Services Clinics in certain jails, the Committee was informed that 1070 Legal Services Clinics have been established various jails across the country and in 168 jails it is yet to be established. The Committee is pained to note that even after 30 years of the enactment of Legal Services Authorities Act, 1987, NALSA has not be able to establish Legal Services Clinics in all the Jails of the country. The conditions of jails in the country are pitiable with overcrowding,
26 lack of healthcare facility, etc. In many cases prisoner with petty criminal charges are made to stay with hardened criminals, leading to the making of potential criminals in future. There must be segregation of criminals based on the nature of charges against them and under-trial prisoners who have served fifty-percent of their term should be releases as per Section 436 A of the Cr.PC. However, it is constrained to note that the constitutional commitment to provide legal aid services from the time the accused is produced before the Magistrate for the first time and thereafter each time he/she is produced for remand, is not being fulfilled. The experience at the ground level is that the accused do not get representation from the time of first remand as claimed by NALSA. It is usually at a much later stage and in many cases at the time of evidence. By that time it is too late to protect the right of the accused. Also, there are issues of insufficient briefing and instructions to the panel lawyers, as well as non- availability of translated material, etc. that comes in the way of cause of justice for these people. (Para 6.70) Action Taken / proposed to be taken by the Department 7.1 NALSA is committed to providing of free legal services to prisoners as per the mandate of Legal Services Authorities Act,1987. In this regard, various programmes are carried out by the Legal Services Authorities at National, State, District and Taluk levels. In the jails, Legal Services Authorities are primarily mandated to give free legal aid to un- represented prisoners. All the prisoners do not avail free legal aid as many engage private counsel also. For such prisoners also legal advice and information with regard to the status of their cases and the other related information is provided by the Legal Services Clinics, Jail visiting advocates in the Jail. The Legal Services Authorities Act 1987 was notified in the year 1995. Since then the activities and the grass root programmes have increased. In a jail, primarily, legal services are provided through following modes:- (i) Jail Legal Services Clinics. (ii) Legal Services Camps held inside the jail. (iii) Regular visit of Secretary, District Legal Services Authority to jail on monthly basis. (iv) Carrying out specific programmes for jail inmates. (v) Regular visits by the Jail Visiting Lawyer. (vi) Long stay Prisoners trained as PLVs 7.2 The process of establishing Legal Services Clinics in Jail started after notification of the National Legal Services Authority( Legal Services Clinics) Regulations,2011 by the Central Authority of NALSA. At present 1158 Legal Services Clinics have been established in Jails. It is pertinent to mention here that NALSA has started the process of digitisation of legal Services Clinics with an objective to ensure that real time data of all the prisoners is maintained and no prisoner remains unrepresented before the court of law. It is also to ensure that the appeals of the convicts are filed timely and the legal aid is provided to them wherever required. It is further submitted that in all the jails, functionaries of Legal Services Authorities visit on regular basis and they interact with the prisoners. It is further submitted that various campaigns are organised from time to time. For instance, recently a campaign for women prisoners and children living with them inside the jail was carried out across the country. In the said campaign, special focus was put upon the legal rights of the women prisoners and the efforts were made to interact with each and every women prisoner. In the
27 campaign, apart from the legal rights, their other rights such as nutritional and health rights were also looked into. 7.3 It is further submitted that Under Trial Review Committees (UTRCs) have been established in all the districts. The said committee hold quarterly meetings. The areas which primarily are looked into by the UTRCs are as follows:- (i) Under-trial Prisoners (UTPs) covered under Section 436A Cr.P.C. (ii) UTPs released on bail by the court, but have not been able to furnish sureties. (iii) UTPs accused of compoundable offences. (iv) UTPs eligible under Section 436 of Cr.P.C. (v) UTPs who may be covered under Section 3 of the Probation of Offenders Act, namely accused of offence under Sections 379, 380, 381, 404, 420 IPC or alleged to be an offence not more than 2 years imprisonment. (vi) Convicts who have undergone their sentence or are entitled to release because of remission granted to them. (vii) UTPs become eligible to be released on bail u/s 167(2)(a)(i) & (ii) of the Code of Criminal Procedure read with Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (where persons accused of Section 19 or Section 24 or Section 27A or for offences involving commercial quantity) and where investigation is not completed in 60/90/180 days. (viii) UTPs who are imprisoned for offences which carry a maximum punishment of 2 years. (ix) UTPs who are detained under Chapter VIII of the Cr.P.C. i.e. u/s 107, 108, 109 and 151 of Cr.P.C. (x) UTPs who are sick or infirm and require specialized medical treatment. (xi) UTPs women offenders (xii) UTPs who are first time offenders between the ages 19 and 21 years and in custody for the offence punishable with less than 7 years of imprisonment and have suffered at least 1/4th of the maximum sentence possible. (xiii) UTPs who are of unsound mind and must be dealt with Chapter XXV of the Code. (xiv) UTPs eligible for release under Section 437(6) of Cr.P.C, wherein in a case triable by a Magistrate, the trial of a person accused of any non-bailable offence has not been concluded within a period of 60 days from the first date fixed for taking evidence in the case. 7.4 NALSA has prepared a Standard Operating Procedure (SOP) for the Under Trial Review Committees (UTRCs) and the same has been submitted to the Hon’ble Supreme Court of India in WP (C) 406/2013-In Re-human Condition in 1382 Prisons.
7.5 As far as overcrowding is concerned, that is primarily due to the lack of adequate number of Jails and infrastructure facilities in such jails. Importantly, only 1.5 % of the Under Trial Prisoners are in jail. About 98.5% of the Under Trials are out on bail(calculated on the basis of criminal cases pending in courts in India). NALSA does not have the mandate to construct and improve the infrastructure or the physical conditions of the jails. NALSA
28 does not have the prerogative for segregating the prisoners in the jails in any manner. It is submitted that the 9600 Remand Advocates have been appointed across the country to ensure that legal aid is provided to the prisoners who are unrepresented from the very first stage. Panel Lawyers personally interact with the inmates and the family members regularly. They also participate in sensitization programmes organised by DLSAs for them.
Committee’s further observation 7.6 The Committee takes note of the reply and the initiatives of NALSA with regard to digitization of legal service clinics and campaign to focus on rights of women. The Committee also notes that NALSA has established Undertrial Review Committees (UTCs) in all the districts in the country and has prepared a Standard Operating Procedure (SoP) for the Undertrial Review Committees (UTCs) and submitted it to the Supreme Court of India. The Committee however feels that availability of effective legal aid to the undertrials is far from being satisfactory and impress upon NALSA and through it to the SLSAs, to proactively collaborate with concerned stakeholders and ensure legal aid to maximum number of inmates. The Committee further impresses upon NALSA to fully utilize funds allocated to it each year so that its activities are not hampered and funds are not curtailed by the Ministry of Finance due to under- utilisation of allocated funds. It also desires that NALSA should undertake social impact assessment of its schemes/services so as to identify bottlenecks and improve its functioning.
VACANCIES AND PENDENCY OF CASES IN SUBORDINATE COURTS Recommendations/Observations of the Committee 8.0 The Committee is concerned with the large number of vacancy positions of judicial officers in subordinate judiciary. As per the data available, at present 5,927 positions of judicial officers are vacant in different States. The Vacancy is highest in the States of Uttar Pradesh (1348), Bihar (835), Madhya Pradesh (728), Gujarat (375) and Tamil Nadu (341). Since appointment of subordinate judicial officers falls under the domain of State Government, the Committee recommends the Department of Justice to impress upon the State Governments to initiate appointment of judicial officers. The Committee is of the view that recruitment and training of judicial personnel and supporting staffs at Subordinate Courts may help in reducing the pendency of cases and the judge-population ratio may be corrected by appointing more judges in the Subordinate Courts to reduce pendency. The Committee further recommends the Department to explore the option of creation of All India Judicial Services to fill-up the vacancies. (Para 6.79) Action Taken / proposed to be taken by the Department 8.1 As per the Constitutional framework, the selection and appointment of judges in subordinate courts is the responsibility of the High Courts and State Governments concerned. In so far as recruitment of judicial officers in the States is concerned, respective High Courts do it in certain States, whereas the High Courts do it in consultation with the State Public Service Commissions in other States. Department of Justice had written in March, 2018 to
29 the Registrar General of High courts as well as State Governments to share the action plan for 2018-19 to fill up vacancies in subordinate judiciary. All High Courts have shared the action plan they propose to follow to fill up vacancies in subordinate judiciary in 2018-19. Sanctioned strength of Judicial Officers in District and Subordinate Courts has increased from 19,518 as on 31.12.2013 to 22,545 as on 31.03.2018. Working strength of Judicial Officers in District and Subordinate Courts has increased from 15,115 as on 31.12.2013 to 17,109 as on 31.03.2018. 8.2 A comprehensive proposal was formulated for the constitution of an All India Judicial Service (AIJS) and the same was approved by the Committee of Secretaries in November, 2012. The proposal was included as an agenda item in the Conference of Chief Ministers and Chief Justices of the High Court’s held in April, 2013 and it was decided that issue needs further deliberation and consideration. The views of the State Governments and High Courts were sought on the proposal. However, there was divergence of opinion among the State Governments and High Courts on constitution of All India Judicial Service. The proposal for constitution of All India Judicial Service with views from the High Courts and State Governments received thereon was included in the agenda for the Joint Conference of Chief Ministers and Chief Justices of the High Courts held on 5th April, 2015. 8.3 Keeping in view the divergence of opinion among the stakeholders on constitution of All India Judicial Service, the Government has undertaken the consultative process to arrive at a common ground.
Committee’s further observation 8.4 The Committee notes the initiates undertaken by the Department as enumerated above for appointment of judges in Subordinate Judiciary. However, it will serve better to remember that still large number of vacancies exists in subordinate judiciary. The Committee therefore recommends the Department to request the concerned stakeholders, i.e., State Governments and High Courts to expedite the process of recruitment of judicial officers and also to ensure that all the obstacles in appointment of judges in Subordinate Judiciary are removed in a time bound manner.
30 CHAPTER - IV THE RECOMMENDATIONS/OBSERVATIONS IN RESPECT OF WHICH FINAL REPLIES OF THE MINISTRY HAVE NOT BEEN RECEIVED DEPARTMENT OF JUSTICE National Judicial Academy (NJA) Recommendations/Observations of the Committee 1.0 The Committee observes that the Academy has been in existence for more than two decades now and substantial amount of public fund has already been spent on it. It would, therefore, be useful for the department to get a third party evaluation made of the quality of training being imparted at the Academy and the extent to which training at the Academy has resulted in strengthening the Judicial system, so that shortcomings, if any could be removed. (Para 6.53) Action Taken / proposed to be taken by the Department 1.1 Pursuant to the Resolution adopted in the Chief Justices’ Conference, 2016 under Agenda Item No. 9, a National Judicial Academic Council (NJAC) was established by the Hon'ble Chief Justice of India comprising two senior Puisne Judges, Supreme Court of India, Chairmen of State Judicial Academies, Judges In-charge (Judicial Education) of High Courts, Secretary, Department of Justice and Director, National Judicial Academy as its Members. The above Council that is chaired by Hon'ble the Chief Justice of India performs the following functions: * Promoting the cause of judicial education; * Devising the academic calendar for NJA; * Prescribe and approve academic calendars for SJAs; * Promote the growth and availability of resources required for judicial training and education; * Coordinate and monitor the functioning of NJA & SJAs; * Suggest methods for improving judicial education facilities and cooperation among NJA and SJAs. NJA and SJAs also submit annual academic calendars of their respective academies to the National Judicial Academic Council for finalization. 1.2 Accordingly, the Annual Academic Calendar for National Judicial Academy is finalized every year by the NJAC and the academic programmes are undertaken by the National Judicial Academy as per the finalized Annual Calendars.
Committee’s further observation 1.3 The replies of the Department are not in sync with the recommendations of the Committee. The Committee accordingly, reiterates its recommendations that third party evaluation of National Judicial Academy should be undertaken to gauge effectiveness of activities undertaken by it.
31 2.0 The Committee has examined the above issue in its earlier Reports also, viz. Seventy- fifth and Eighty-fourth Reports on the Demands for Grants (2015-16 & 2016-17), and had observed that Article 348 provides for the use of Official language of the State, other than English, with the consent of the Governor of the State in the High Court of that State. The Committee had, accordingly, recommended that official languages of the State other than English may be permitted to be used in the High Courts, provided it is demanded by the concerned State Government. The Committee was further of the view that the consultation process with judiciary is not required as the Constitutional provisions are amply clear on the use of Scheduled Languages in the High Courts and accordingly, the use of official languages should be decided as per the mandate of Article 348. The Committee reiterates its above recommendations. (Para 6.88) Committee’s further observation 2.1 The action taken sought from the Department is still awaited.
SUPREME COURT OF INDIA
3. The Committee notes that out of 251 crores in BE (2018-19), which is a decrease of 4 crore against RE (2017-18), 40 lakh is proposed under the head ‘Publication’. The Committee also notes that the Supreme Court has not been able to spend funds allotted to it under the head ‘Publication’ in BE (2016-17), as only 14.94 lakh were spent out of the allocation of 20 lakh under the said head. As per the Official Languages Act, 1963, every Government department is required to publish documents in Hindi version, along with English. The Committee accordingly adjures the Registrar, Supreme Court of India to publish report in Hindi. (Para 7.2)
Committee’s further observation 3.1 The action taken sought from the Department is still awaited.
32 RECOMMENDATIONS/OBSERVATIONS-AT A GLANCE CHAPTER - I RECOMMENDATIONS / OBSERVATIONS WHICH HAVE BEEN ACCEPTED BY THE MINISTRY
1. The Committee notes the reply. (Para 1.3, 2.2, 3.2, 4.2, 5.2, 6.3, 7.2, 8.2, 9.2, 10.2, 11.2, 12.2, 13.2, 14.2, 15.2 and 16.2). CHAPTER - II RECOMMENDATIONS / OBSERVATIONS WHICH THE COMMITTEE DOES NOT DESIRE TO PURSUE IN VIEW OF THE REPLIES GIVEN BY THE MINISTRY
2. The Committee notes the reply. The Committee is optimistic that Legal Research & Education Promotion Development Scheme (LREPDS) envisaged by the Department will help in curtailment of litigation, besides promoting legal research and education. The Committee may be apprised of the implementation, including bottleneck if any, of LREPDS during the deliberations on the Demand for Grants 2019-20. (Para 1.3)
3. The Committee notes the reply of ITAT. However, the Committee feels establishing and running ITAT in various parts of the country requires financial and physical support on the part of Government, and therefore, is of the view that performance appraisal mechanism must be developed by the Department of Legal Affairs to assess the performance of individual members and each ITAT Benches, thereby, developing a ranking mechanism for ITATs, at National level to identify and address the problems of underperforming ITATs. (Para 2.2)
4. The Committee notes the reply. The Committee feels that NALSA/SLSA should evaluate the performance of panel lawyers engaged every year and accordingly, eliminate underperforming lawyers and ensure that only competent lawyers are appointed on the panel. (Para 3.3) 5. The Committee is of the view that vacancy positions of judges need to be filled up immediately and the vacancies arising in future should be filled strictly as per the guidelines in the Second Judges Case and the directions of the Supreme Court of India in the Sunil Samdaria vs. Union of India (2018). The Committee feels that timeline of six weeks given to Chief Minister/ Governor as informed in the Action Taken Replies of the Ministry may be reduced to expedite the process of appointment of judges. The Committee also feels since there is no proposal to raise the retirement age of judges in higher judiciary by the Government, unnecessary delay in recruitment of judges should be avoided at any cost. (Para 4.6)
33 CHAPTER - III RECOMMENDATIONS/OBSERVATIONS IN RESPECT OF WHICH COMMITTEE HAS NOT ACCEPTED REPLIES OF THE MINISTRY
6. The Committee notes the reply. However, the Committee feels that Department should prepare a blueprint for future work to be undertaken in the area of translation of Acts/Ordinances/Rules etc. and also expedite the recruitment of Regional Language officers and engagement of experts or consultants, so that the translation work of the Department doesn't suffer due to shortage of manpower. The Committee wishes to be apprised of further action taken in this regard. (Para 1.2)
7. The Committee would have appreciated had the department firmed up the plan and action to formulate the National Litigation Policy (NLP). The Department is therefore again, suggested to expedite preparation of a concrete road-map in the implementation of NLP and it should also apprise the Committee about the development during the deliberations on the Demands for Grants (2019-20). (Para 2.2)
8. The Committee infers from the reply that no progress has so far been made with regard to filling up of posts to be filled up from CSS, CSSS CSCS and CSOLS cadres. The Committee fails to understand why nominations could not be made by DoPT. If this continues, posts are not likely to be filled up at all. The Committee impress upon both DoPT and Department of Legal Affairs to resolve this issue and then apprise the Committee. As regards, ILS cadre posts some progress appears to have been made. The Committee however expresses its serious concern over the vacancy positions and litigations relating to it and of the view that Department of Legal Affairs being Law Department of the Union of India should have foreseen the legal implications before starting recruitment process. The Committee, recommends that the Department needs to be cautious in its approach and should take all necessary steps for filling up the vacancy positions, so that the work of Department is not hampered. (Para 3.2)
9. The Committee feels that Indian Law Institute’s (ILI) infrastructural requirements and shortcomings should be evaluated by a third party to assess its actual requirements. The Committee recommends the ILI to fill-up vacant positions on priority basis and inform the action taken by it during the current financial year on the issue. The Department is further requested to examine the issue of Institute of National Importance (INI) demand of ILI and furnish report to the Committee during the deliberations of the Demands for Grants (2019-20). (Para 4.2)
10. The committee is of the view that Notaries are important link in the judicial system. Their large vacancy positions, along with delay in appointment and renewal, portray the half-hearted actions of Department in the appointment of Notaries. The Notaries Act, 1992 and Rules framed thereunder doesn't specifically call for issuing of advertisement for appointment of Notaries, however, it also doesn't bar the Department
34 to issue advertisement for appointing notaries. Continuance of such state of affairs is pathetic. The Committee recommends the Department to streamline its process to fill- up vacancies of Notaries. Further, no dedicated mechanism is available to deal with the grievance of candidates on the Department’s website. The Committee also recommends the Department to establish a dedicated cell and publicize the contact details of officers/staffs dealing with the Cell so as to resolve the grievance of the candidates, Action taken in this regard may be apprised to the Committee during the deliberations on the Demands for Grants (2019-20). (Para 5.4)
11. The Committee does not appreciate the manner in which the establishment of Gram Nyayalayas has been taken up by the Government. Gram Nyayalayas Act was primarily enacted to ensure inexpensive and speedies justice to the people at their door steps but it is unfortunate that after a decade of the passage of Gram Nyayalayas Act, in 2008, only 343 Gram Nyayalayas are notified, and out of which only 210 are in functional position. The Committee is not happy with the current pace of implementation of Gram Nyayalayas and feels that the delegation of power to establish Gram Nyayalayas to respective State Governments and High Courts taken in the Conference of Chief Justices of High Courts and Chief Ministers way back in 2013 have not yielded the desired result and the continuance of existing state of affairs in every likelihood defeat the very purpose for which the Gram Nyayalayas Act was enacted. The Committee accordingly, reiterates its views contained in the Demand for Grants (2018-19) and recommends the Department to explore the tripartite model to expedite the establishment and operationalisation of Gram Nyayalayas and also recommends the Department to apprise the Committee during the deliberations on the Demands for Grants (2019-20) of the steps taken by it, year wise since the financial year 2013-14, to establish and operationalize gram Nyayalayas in the country. (Para 6.4)
12. The Committee takes note of the reply and the initiatives of NALSA with regard to digitization of legal service clinics and campaign to focus on rights of women. The Committee also notes that NALSA has established Undertrial Review Committees (UTCs) in all the districts in the country and has prepared a Standard Operating Procedure (SoP) for the Undertrial Review Committees (UTCs) and submitted it to the Supreme Court of India. The Committee however feels that availability of effective legal aid to the undertrials is far from being satisfactory and impress upon NALSA and through it to the SLSAs, to proactively collaborate with concerned stakeholders and ensure legal aid to maximum number of inmates. The Committee further impresses upon NALSA to fully utilize funds allocated to it each year so that its activities are not hampered and funds are not curtailed by the Ministry of Finance due to under- utilisation of allocated funds. It also desires that NALSA should undertake social impact assessment of its schemes/services so as to identify bottlenecks and improve its functioning. (Para 7.6)
13. The Committee notes the initiates undertaken by the Department as enumerated above for appointment of judges in Subordinate Judiciary. However, it will serve better to remember that still large number of vacancies exists in subordinate judiciary. The
35 Committee therefore recommends the Department to request the concerned stakeholders, i.e., State Governments and High Courts to expedite the process of recruitment of judicial officers and also to ensure that all the obstacles in appointment of judges in Subordinate Judiciary are removed in a time bound manner. (Para 8.4)
CHAPTER - IV THE RECOMMENDATIONS/OBSERVATIONS IN RESPECT OF WHICH FINAL REPLIES OF THE MINISTRY HAVE NOT BEEN RECEIVED
14. The replies of the Department are not in sync with the recommendations of the Committee. The Committee accordingly, reiterates its recommendations that third party evaluation of National Judicial Academy should be undertaken to gauge effectiveness of activities undertaken by it. (Para 1.3) 15. The action taken sought from the Department is still awaited. (Para 2.1) 16. The action taken sought from the Department is still awaited. (Para 3.1)
36 RELEVANT MINUTES OF THE MEETINGS OF THE COMMITTEE DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE ------MINUTES OF THE MEETING VII SEVENTH MEETING The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 03:00 P.M. on Thursday, the 27th December, 2018 in Room No. 62, First Floor, Parliament House, New Delhi – 110001. PRESENT 1. Shri Bhupender Yadav Chairman RAJYA SABHA 2. Shri Swapan Dasgupta 3. Shri Prabhat Jha 4. Shri D. Raja 5. Shri Vivek K. Tankha LOK SABHA 6. Shri Sharadkumar Maruit Bansode 7. Shri Vincent H. Pala 8. Shri Rajiv Pratap Rudy 9. Dr. Anirudhan Sampath 10. Shri Ram Prasad Sarmah 11. Shri M. Udhyakumar 12. Shri Kaushal Kishore
SECRETARIAT 1. Shri K. P. Singh, Joint Secretary 2. Shri Ashok K. Sahoo, Additional Director 3. Shri Goutam Kumar, Deputy Secretary
2. At the outset, the Chairman welcomed Members to the meeting of the Committee. The Committee then took up the consideration and adoption of the (i) draft Ninety-eighth Report of the Committee on Action Taken Replies of the Government on the Recommendations / Observations contained in the Ninety-fifth Report on Demands for Grants (2018-19) of the Ministry of Personnel, Public Grievances and Pensions; and (ii) the draft Ninety-ninth Report on the Action Taken Replies of the Government on the Recommendations / Observations contained in the Ninety-sixth Report on Demands for Grants (2018-19) of the Ministry of Law and Justice. Members deliberated on the Reports, and thereafter, the Reports were adopted with some minor alterations.The Committee then
37 decided to present/lay the Reports to both Houses of Parliament on 3rd January, 2018. The Chairman authorized Shri Vivek K. Tankha and in his absence Shri D. Raja, to present the Reports in Rajya Sabha and Shri Rajiv Pratap Rudy and in his absence Shri Vincent H. Pala, to lay the Reports in Lok Sabha. 3. The meeting was then adjourned at 03.30 PM.
NEW DELHI ASHOK K. SAHOO The 27th December, 2018. ADDL. DIRECTOR
To The Chairman and Members of the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice.
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