State cannot oppose HC’s proposal for additional courts, posts: Bombay HC

The Bombay High Court has reiterated that under the constitutional mandate, there cannot be any opposition by the state government when the High Court Administration seeks creation of additional courts or posts..The Division Bench of Justices AS Oka and MS Sonak also clarified that the Judiciary has primacy over the government in making decisions concerning the establishment of courts or judicial posts..“... when it comes to deciding on the proposal for the appointment of additional Judicial Officers or creating additional Courts or creating additional posts, the views of the High Court Administration will always have a primacy and it is the constitutional obligation of the State to ensure that additional Courts or additional posts as suggested by the High Court Administration are sanctioned as expeditiously as possible in as much as if there is a delay on the part of the State Government, it may amount to violation of fundamental rights of the litigants under Article 21 of the Constitution of India.“.The main plea had called for the creation of additional courts and additional posts for judges in Maharashtra. Directions addressing specific prayers made in this regard were passed in a judgment dated August 11, 2017. Affidavits filed since then informed the Court of the progress made by the state government in establishing special courts, family courts, fast-track courts and more judicial posts in Maharashtra, as prayed for..However, as the case progressed, the question regarding which branch would assume primacy in making decisions on the establishment of judicial courts and posts cropped up..The Maharashtra government had contended that such matters lie in the legislative domain. Referring to Article 309 of the Indian Constitution, the government contended that it had primacy over the High Court/Judiciary in taking decisions in relation to the same. Article 309 lays down that the appropriate legislature may regulate the recruitment and service conditions of persons holding public posts..However, the Court noted that this stance has already been rejected by the Supreme Court in the 1993 case of All India Judges’ Association v. Union of India. In that case, the Court had ruled,.“… the mere fact that Article 309 gives power to the executive and the legislature to prescribe the service conditions of the judiciary, does not mean that the judiciary should have no say in the matter. .It would be against the spirit of the Constitution to deny any role to the judiciary in that that behalf for theoretically it would not be impossible for the executive or the legislature to turn and twist the tail of the judiciary by using the said power. Such a consequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the judiciary.”.In 2016, the Bombay High Court had also made similar observations in a case concerning the establishment of courts under the Maharashtra Civil Courts Act, 1869. In Partur Bar Association v. State of Maharashtra, the Bench had held that while making decisions on such matters, the government will have to consult the High Court. Further, in view of Article 235 of the Constitution, the High Court will have primacy in making such decisions. Article 235 vests with the High Court control over all subordinate courts in the state. It was observed in that case,.“If any other interpretation is made, the relevant provisions of the Civil Courts Act and Criminal Procedure Code will be exposed to the vice of unconstitutionality.”.Echoing these views, the present Bench noted that if the government is allowed to have the final say in matters of creating courts or judicial posts, it would adversely affect the independence of the Judiciary, which forms part of the Basic Structure of the Constitution..“If the argument that it is for the State to ultimately decide how many judicial posts are required to be created is accepted, it will jeopardize the independence of the judiciary….…If the argument of the State is accepted, it would mean that in a given case, when the High Court Administration is of the considered view that at a particular place, it is necessary to create certain number of additional posts of Judges,the State will finally decide whether creation of additional posts of the Judges is necessary at that particular place. .Therefore, it comes to it that the State will decide how many Judges are required to deal with the pendency of cases at a particular place and for ensuring the speedy trial. If this view is accepted, it will impinge upon the independence of judiciary which is a part of the basic structure of the Constitution of India.“.The Court proceeded to point out that the Judiciary is also obliged to make decisions on such matters, in order to protect the fundamental rights of litigants under the Constitution..“... it is already held that in the matter of establishing the new Courts, the views of the High Court will have the primacy. Considering the mandate of Article 21 and Article 39A, it is the duty of the judicial system to take all such steps so as to ensure that no citizen is deprived of his fundamental rights guaranteed under Article 21 of the Constitution of speedy trial.”.In terms of practicality, the Bench noted that the High Court administration is in a better position to ascertain the number of courts and judges required in the state..In view of these observations, the Court concluded,.“Considering the Constitutional Scheme and the fact that the independence of the judiciary is the basic structure of the Constitution, it is impossible to read Article 309 as conferring the exclusive power on the Government to finally decide as to how many judicial posts should be created and to hold that the Government is not bound by the views of the High Court.“.Before parting with the case, the Bench also emphasised that when the High Court issues directions for the creation of courts/judicial posts, the state ought to ideally cooperate to ensure that the same is implemented. On the other hand, it was noted that the state often adopts an adversarial stand when such proposals are made by the Court..“In the light of the law laid down by the Apex Court and in this Court, it is obvious that the State Government requires to change its approach. Ideally, in terms of the constitutional mandate, there cannot be any opposition by the State Government when High Court Administration seeks creation of additional Courts or posts and seeks to appoint additional Judicial Officers.“.The matter has been posted to be taken up again on January 25. The Court recorded its appreciation for petitioner Vihar Durve for “taking up cause of the legal system and judiciary”..Inter alia, the Court has also directed that if any of the proposals for creation of posts are still pending, the same are to be appropriately dealt with by the state within three months..Read the Judgment: