In a speech delivered on Law Day - November 26, 2004 - the then chief justice R C Lahoti praised the judiciary for "carrying a phenomenal burden which perhaps no other judiciary in the world has had to shoulder." If there are more and more cases in courts, he said, "that is because we have a population explosion, we have a more complex and friction-prone society, our dispute resolution and conciliation system are bereft of efficacy, we have increasingly greater awareness of rights, and perhaps because we have more injustice and more arbitrariness in our midst."

He warned that the courts could not "afford to turn a blind eye or a deaf ear to the rank injustices" merely because the courts are already full of litigation and because that would cause the people to have less confidence in the courts and cause a decline in the credibility that the courts have come to enjoy.

Recently, the current Chief Justice of India K G Balakrishnan, in his speech on judicial reforms at a seminar, rebutted accusations made by the executive branch to the effect that judges were responsible for delays in the disposal of cases. He pointed out that even with a network of 14,000 courts and a working strength of 12,500 judges handling four crore cases, each judge was required to deal with 4000 cases, which is extremely high.

In its 120th report submitted on 31 January 1987 the Law Commission recommended that India ought to have 107 judges per million by the year 2000, the ratio achieved by USA in 1981. It also recommended that India should have 50 judges per million population by 1992. These recommendations were endorsed by a standing committee of Parliament in its 85th report submitted in 2002.

At the chief justices' conference held in 2007, the high courts found that new civil cases in the high courts far exceeded the number of disposals, despite the increase in the rate of disposal. On an average a high court judge disposes off 2374 cases and a subordinate court disposes 1346 cases in a year. The chief Justices' conference concluded that if the existing strength of judges wasn't adequate even to dispose of cases equal to the number of new cases filed, then the backlog couldn't be wiped out without the appointment of a large number of judges. In fact, the backlog is likely to increase.

The judiciary correctly identified the very poor financial allocations made by the executive as the root cause of the problem. Apart from Delhi, every state government provided for less than one per cent of its budget for the judiciary. Delhi was the only exception with a figure of 1.3 per cent. The Tenth five Year Plan (2002-2007), allocation was only Rs.700 crores, which is 0.07 per cent of the total plan outlay of Rs.893,183 crores. The chief justices' conference concluded that, "Such meagre allocations are grossly inadequate to meet the requirements of the judiciary. Governments, therefore, need to allocate additional funds for adequate manpower."

The National Commission to Review the working of the Constitution noted, in its report submitted to the government in 2002 that the five-year plans and the Finance Commission had made no separate provision for funds for the judiciary for several decades.

At the joint conference of the chief justices of the high courts and chief ministers of the states held in September 2004 in Delhi it was pointed out by the Chief Justice of India that, "during the Eighth Plan (1992-97), the Centre spent Rs.110 crores on improving infrastructure such as constructing courtrooms, etc. In the Ninth Plan (1997-2002), the Centre released Rs.385 crores for fulfilling priority demands of the judiciary. This was 0.07 per cent of the Centre's plan expenditure of Rs.541,207 crores. During the Tenth Plan (2002-2007), the allocation is Rs.700 crores, which is 0.078 per cent of the total plan outlay of Rs.893,183 crores. The experience shows that these meagre allocations ... are totally inadequate."

To add insult to injury the plan allocations and the allocation of the central grant were conditioned upon the state governments making a matching allocation.

The chief justices recommended that expenditure on the judiciary should come from planned funds, and that funds generated by the courts ought to be kept in a separate account and the high courts be given both financial autonomy as well as expert financial assistance. Though this was a long-standing demand of the judiciary "governments have been reluctant to grant complete financial autonomy to the high court."

Chief Justice K G Balakrishnan, in his presentation on judicial reforms in 2008, countered the criticism of the President of India and the Speaker of the Lok Sabha to the effect that the judiciary was responsible for the delays. A large number of cases pending in courts have the governments as a party (see Government itself to blame), indicating that lack of proper administration was the reason why citizens are driven to litigation. "Weak and inefficient revenue administration" has resulted in a "poor land rights recording system" which was the main reason for the institution of a large number of cases, he argued.

Secondly, financial institutions had filed a large number of cases seeking to recover money through criminal proceedings by using the Negotiable Instruments Act, thus converting the courts into "collecting agents for these financial institutions". Many of these institutions are privately owned by people engaged in giving usurious loans. As a result the trial of ordinary criminal cases is seriously hampered.

Thirdly, since insurance companies do not follow a fair procedure of acknowledging liability and disbursing amounts before the victims come to courts, there are a large number of motor accident claims pending before various tribunals.

Fourthly, there are a huge number of land acquisition cases in courts because of mal-administration in land acquisition cases where "the amounts awarded by land acquisition officer has never been reasonable or proper" and as a result, "the parties are driven to litigation in a large number of cases."

In criminal cases the chief justices identified the" tardy and inefficient" investigations resulting in a huge delay in the filing of chargesheets as one of the reasons for delay in the disposal of criminal cases." Inept policing and weak prosecutions are hugely responsible for slowing down and protracting the criminal trials in many courts."

Fifth, the financial impact of legislation is not assessed in India, whereas this is done in all developed countries. There, every statute is required to have a financial memorandum making provision for extra courts, extra staff, extra judges and the like. Statutes in India are merrily enacted without any such financial memorandum. This puts a huge additional burden on the existing courts and increases the delay in the delivery of justice. Recently it was reported in a Delhi newspaper that there was no space for a tribunal and so the judge began operating from his car.

Lack of proper accommodation for courts and the residence of judges have been repeatedly brought to the notice of governments. Numerous complaints have been made to the government about the inadequate staff including stenos without whom a judge simply cannot work. When these complaints were brought to the notice of the executive by the judiciary they were dismissed out of hand by the executive using language like "rejected", "considered not feasible" and "matter is receiving consideration by the government." The justices found these responses "lacking in propriety and courtesy."

All India Judges Association cases

At this stage it would be relevant to look at the three decisions of the Supreme Court in the All India Judges Association case. In the first case in 1992 the Supreme Court had to intervene on as simple an issue as law books for judges and, in the face of executive apathy ordered a provision of Rs 200 a month for law books for a judge. The Supreme Court pointed out, "that what is collected as court fee at least be spent on the administration of Justice instead of being utilised as a source of general revenue of states."

In the second All India Judges Association case in 1993 the Supreme Court dealt with a review petition filed by the governments questioning the right of the judiciary to determine the service conditions of the judges and claiming that the directives involved "a very heavy financial outlay" which the governments could not afford. Characterising the attitude of the governments as hostile, the Supreme Court pointed out that from as far back as 1958 the Law Commission of India in its 14th report lamented, "though we have been pouring money into a number of activities, the administration of justice has not seemed to be of enough importance to deserve more financial assistance. On the contrary, in a number of states not only had the administration of justice been starved so as to affect its efficiency, but it has also been made to yield revenue to the State."

Dealing with the argument that the financial burden was heavy, the Supreme Court found that compared to the planned and non-planned expenditure, the burden was "negligible". Secondly, "when the duties are obligatory no grievance could be heard that they cast a financial burden". The court castigated the governments for opposing the direction for the provision of law books to judges. "It is difficult to understand the attitude of State Governments…it is like asking artisans to work without their tools". Regarding the accommodation of judges the Supreme Court found that there was, in 1993, a shortage of 5,000 houses indicating that half of the judicial officers in the country were without proper accommodation.

In the third All India Judges Association case, the Supreme Court enforced the recommendations of the first national judicial pay commission, which was constituted in 1996 by the central government. The commission noted that the expenditure on the judiciary was, "relatively low" being not more than 0.2 per cent of the GNP.