Winter Session 2018: What the answers to Parliament Questions reveal

The Winter Session of Parliament, which concluded on January 8 this year, saw a significant amount of legislative work being done. A number of important Bills were passed, albeit amidst controversy.

The Parliament Questions posed to the Union Ministry of Law and Justice revealed some interesting information pertaining to the higher judiciary and the justice system.

Besides the usual questions about the state of pendency and judicial vacancies, during the last Session, queries were made on the number of cases each judge has to handle on average, the entry of foreign law firms into the country, and the status of judicial appointments pending with the Central government, among others.

Here are some interesting Parliament Questions asked in the Lok Sabha and the Rajya Sabha, along with their answers.

Lok Sabha

1. Judges appointed to higher judiciary

Even as the Centre and the Supreme Court stall over finalising the Memorandum of Procedure, appointments to the higher judiciary have continued to take place. In response to a question, the number of appointments made over the last three years was revealed.

It was also mentioned that the year 2016 saw the highest number of judges ever appointed to the High Courts.

2. Cases pending for more than ten years

As revealed by one of the answers, the number of cases pending in the high courts for more than ten years exceeds 10 lakh, or 10,29,961 cases to be precise.

Here is a table of ten high courts with the most cases pending for over ten years:

On a related note, it was revealed that over 21.9 lakh cases that are more than ten years old, are pending in the subordinate courts.

3. Families in the Higher Judiciary

Lok Sabha MPs Bharti Shiyal and Kirti Azad raised an interesting question regarding relatives in the higher judiciary. The question reads:

“Whether the government is aware of the preponderance of members of over 400 families in higher judiciary and that the current collegium system has contributed to this malaise…

Whether it is true that 2/3rd of higher judiciary is not required to compete in any examination and are merely picked from the bar, which contributes to the perpetuation of these 400 families to be parachuted into the higher judiciary…”

In response, Law Minister Ravi Shankar Prasad chose not to answer the same, instead laying down the procedure by which judges are appointed to the higher judiciary.

4. Regulation of Lawyers’ Fees etc.

One of the questions asked in the Lok Sabha was regarding the need to regulate the ethics and professional fees charged by lawyers. It was also asked whether there was any mechanism to check the performance of lawyers in court.

In response, the Law Ministry has stated that ethics are regulated by the Bar Council of India through the Advocates’ Act. As regards the question on the feedback mechanism, the reply states,

“Bar Council of India stated that any client who may not get relief from the Hon’ble Court of law will obviously be disgruntled, whether rightly or wrongly and such person/s will obviously not give a good feedback of the advocate. Thus, subjecting the advocates or professionals, from any field to such scrutiny is a matter which requires a detailed deliberation.”

5. Decrease in cases disposed of by Lok Adalats

A pertinent question raised by Lok Sabha MP Asaduddin Owaisi was whether the productivity of Lok Adalats in terms of disposal of cases has come down year after year from 2015/16 to 2017/18. Owaisi had also asked for the number of cases settled in 2018, as compared to the figures of the preceding years. The following table shows the number of cases settled over the past four years.

The response to the drop in the number of cases settled was,

“…During the year 2017, emphasis was given on pending matters and hence, the cases pertaining to MNREGA, telephone municipal matters at pre-litigation stage were not taken into account while computing the settlement of cases. This has resulted in reduction in the settlement of cases from the year 2015 to 2017.”

6. Entry of Foreign Law Firms

The Supreme Court last year held that foreign law firms could not set up offices in India. However, the Court left it open to the Centre and the BCI to frame rules regarding law firms operating in India on a ‘fly in, fly out’ basis. During the Winter Session, Member of Parliament B Senguttuvan posed the question as to whether the government plans to allow the entry of foreign law firms in a phased manner, to work on non-litigation and international commercial arbitration matters. It was also asked if the BCI has accorded permission for the same.

Further, it was asked whether any rule stipulating that 3/4ths of foreign law firms, if allowed to practice, have to be composed of Indian lawyers, was in the works.

The Centre has replied that the Supreme Court judgment, as well as the 266th Report of the Law Commission of India – that in effect stated that foreign lawyers should be treated as “advocates” under the Advocates Act – are under consideration.

Moreover,

“Bar Council of India stated that the issue of framing regulation relating to entry of foreign Law Firms/Advocates, if any, will be considered by the Bar Council of India after receipt of opinion of all the State Bar Councils after publication of result of ongoing elections. The Bar Council of India has said that it can furnish its opinion only after gathering the opinion of lawyers all over the country.”

7. Cases pending against legislators

As per a reply to a question, a whopping 4122 cases are pending against legislators across the country. Reference was also made to the Supreme Court’s orders in the petition filed by Ashwini Kumar Upadhyay. The Court had directed the setting up of 12 Special Courts in 11 states to disposed of these cases.

Below is a table of the states which have the highest cases pending against legislators:

Rajya Sabha

1. Sexual Harassment Committees in Courts

A pertinent question put forth by Vandana Chavan was whether the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was applicable to the Supreme Court and the High Courts. It was also asked whether the courts had Internal Complaints Committees to deal with instances of sexual harassment.

The Centre has, in response, stated that the Department of Justice does not maintain such information.

The Supreme Court had, in May last year,  directed all the High Courts and District Courts of the country to constitute such committees under the Act, if not already constituted, within a period of two months. It will be interesting to see just how far the Supreme Court’s directions have been followed thus far.

SC urges HCs to set up committees based on Vishaka guidelines in all courts

2. Cases per judge

In order to determine the workload of judges manning Indian courts amidst burgeoning vacancies and pendency, MP Sanjay Seth sought the average number of cases per judge. As per information on the National Judicial Data Grid (NJDG) website, that number was 1,288 cases for subordinate judges, and a mind boggling 4,419 cases per High Court judge.

3. Pending Judicial Appointments

Senior Advocate and Rajya Sabha MP Vivek Tankha sought answers to the following questions regarding pending judicial appointments:

• The number of Collegium recommendations pending with the Centre
• The recommendations not approved by the Centre over the last three years, and the reasons for the same
• Names of such persons not approved by the Centre after being recommended by the Collegium

In response, the Law Ministry has stated that there is no pending recommendation for appointment of judges to the Supreme Court or for Chief Justices of High Courts. As far as High Court judges are concerned, the response states,

“…92 names recommended by HCC (High Court Collegium) including names reiterated and recommended by SCC, are under various stages of processing with the Government as per the procedure prescribed in MoP. In addition to these names, 5 names recommended by SCC have been submitted to SCC for reconsideration.”

The response does not reveal the names of the persons who have been recommended for elevation.

4. How much do legal aid lawyers get paid?

As per the response to a question, the fees paid to lawyers by State Legal Services Authorities (SLAs) varies from state to state. However, a Committee appointed by the National Legal Services Authority (NALSA) in 2016 prescribed a a minimum fee payable to lawyers empanelled on SLAs. The table below reveals the prescribed fees:

It was also shown that most states and union territories pay legal aid lawyers the fees prescribed by NALSA in 2016, with the exception of Goa, Meghalaya, Dadra & Nagar Haveli, and Lakshadweep. The states of Delhi, Uttarakhand, Punjab, Rajasthan, Gujarat and Kerala pay their legal aid lawyers more than what was prescribed by NALSA.

5. Renaming of High Courts

According to the response to a question asked in the Rajya Sabha, there is no proposal to change the name of the Allahabad High Court to Prayagraj High Court. Also, there is no move in the works to set up a Bench of the High Court at Meerut.

As regards renaming the Bombay High Court, the Law Ministry has stated that the High Courts (Alteration of Names) Bill, 2016 -which seeks to rename the High Courts of Bombay, Calcutta and Madras to the High Courts of Mumbai, Kolkata and Tamil Nadu – is still pending.