VIth Additional Judicial Commissioner vs State of Bihar and Others

K.S. Paripoornan, C.J.—This is a public interest litigation. The matter concerns the administration of criminal justice in the subordinate courts in the State of Bihar. The entire system has perilously come to a grinding halt. A letter was received from the 6th Additional Judicial Commissioner, Ranchi, in respect of curtain sessions cases. It disclosed that in this State, there is a common feature not to produce accused persons in courts on due dates in spite of the order of the court; sessions trials are being hampered or delayed due to non-production of undertrial prisoners. A Bench consisting of the then Chief Justice, Mr. B.C. Basak and Mr. Justice Choudhary S.N. Mishra initiated suo motu proceeding on 2.9.93 and directed the Inspector-General of Prisons, Director of Prosecutions and Director General of Police, Respondents in the proceedings, to explain. From then onwards innumerable orders were passed by this Court from time to time. They are matters of record. It is necessary only to mention the important orders passed earlier. By order dated 24.9.93 this Court noticed that due to pendency of bills for huge amounts, petrols were not being supplied on credit and so prisoner vans were not available for bringing the accused. Many prisoner''s vans were old and unusable and a few of them were under repair and so they could not be utilised, etc. Still later on 27.9.93 this Court noticed that due to non-production of undertrial prisoners and non-availability of vans and sufficient petrol and dilapidated conditions of vehicles, administration of justice is likely to breakdown, and law and order situation of the State as a whole would suffer. The facts adverted to in the proceeding disclosed an alarming situation. In order to find a solution to the problems, a ''Special Committee'', consisting of Mr. Justice S.C. Mukherji, as Chairman, Director General-cum-I.G. of Police, Bihar, Home Secretary, Government of Bihar, and the Inspector General of Prisons, Bihar, was appointed. The Committee was directed to find out solution to the problems and submit a report. By order dated 13.12.93 it was clearly noticed that the reasons for the delay of criminal trials were due to inadequate and absence of appropriate steps being taken on behalf of the State. It was noticed that vans in very many districts were in hopeless condition, etc. Subsequently, reports were also called for from the various District Judges. There are 51 Revenue Districts in this State but the Judicial Districts are only 40. Justice Mukherji submitted a detailed report. Affidavits were also filed by the Respondents. The interim report filed by Mr. Justice Mukherji disclosed that in 17 districts prisoners vans were available, some of these vans required repairs, vans in four districts required major repairs, vans in 8 districts were beyond repairs and in respect of 10 districts, new vans had to be purchased. The report further states that funds should be made available for repair of old vans, replacement of hopeless vans by purchasing new ones and to purchase new vans where vans arc not available. The further report submitted by Justice Mr. Mukherji on 14.1.94 disclosed that 8 medium size troop carriers have been allotted to 8 districts and proposal for purchase of 10 new vans were under active consideration of the Government, etc. It is further stated that in 17 districts, where prisoners vans were available but required repairs, steps have already been taken and some of the vans have been repaired. Appropriate directions were prayed for.

It came to light that, apart from the above, for no reason undertrial prisoners were not produced in many districts. At least in 4 districts, due to non-availability of hand-cuffs and. shortage of escort party, priosoners were not produced.

On the basis of the interim report of Justice Mr. Mukherji and the reports received from the District Judges and after perusal of the affidavits and supplementary affidavits filed by the Respondents, the matter was heard from time to time. Learned Advocate General appeared for the State. This Court appointed Mr. Shakeel Ahmad Khan, a Senior Counsel, as amicus curiae.

The various proceedings passed by this Court, reports received from the District Judges, interim and final reports submitted by Justice Mr. Mukherji and the submissions made by Mr. Shakeel Ahmad Khan, amicus curiae, disclosed that administration of criminal justice in the courts in Bihar State is really in shambles. The situation is alarming. There is a huge pendency of criminal cases. Sessions cases were pending in many districts for more than seven or eight years, in a good number, and it appeared as if no body is concerned with the matter. This Court fell that this state of affairs will ultimately lead to a point of no return and law and order situation is likely to be affected in a deplorable manner. The various counter affidavits filed by the State and its officers only stated that steps are being taken or initialed to see that the defects point out arc attended to but there was no clear assurance or time bound programme and so we directed the State Government to file an affidavit stating the time within which the deficiencies will be made good. In this regard the affidavit filed by the Additional Secretary, Department, of Police (Home), dated 8.4.94 and also the supplementary affidavit dated 18.4.94 are important. Alarmed by the prevailing situation, the Chief Justice called for details of pending sessions cases from the District Judges, the duration of delay, the reasons for the delay, etc. Reports so received were tabulated by the Registry and the details are contained in Annexure ''A'' which forms part of this order. It disclosed alarming long pendency of cases, huge arrears and warranted urgent action. Accordingly, a conference of District Judges and lop officials of the State Government connected with administration of criminal justice was convened in which Judges of the High Court also took part. The Resolutions adopted at the conference so held on 24.4.94 were discussed and curative measures were suggested to meet the situation by a monitoring committee consisting of the Judges and officers and the minutes recorded in that behalf is Annexure ''B'', which forms part of this order. On behalf of the Government, Additional Secretary, Department of Police (Home) has undertaken to do the following:

(i) The Government will implement the recommendation of the Chairman of the Special Committee constituted by order of this Court dated 27.9.93 and steps have been taken for implementation of the recommendations. Annexure ''A'' filed along with the affidavit of 8.4.94 referred to the various districts, by serial numbers, the steps required to be taken therein or the steps already initiated in that behalf.

(ii) In 19 districts prisoners vans have been put in working order - (serials 1 to 19);

(iii) In the districts of Katihar, Khagaria and Samastipur (sl. Nos. 20 to 22) vans arc being repaired. Alternative arrangements have been made by providing medium size prisoners vans. It will be completed within three mouths.

(iv) In the districts covered by sls. 23 to 32 (of annexure ''A'') new vehicles are being purchased and orders have been placed therefor. They will be made available within six weeks. Till then troop carriers have been pressed into service in the said districts for movement of prisoners from one place to another. In the districts covered by serials 33 to 42 new wire meshed covered troop carriers have been provided to be utilised as prisoners vans.

(v) In the districts specified as sis. 43 to 51, new vehicles are being made available since old vehicles are condemned. Replacement shall take place within six months. Meanwhile, alternative arrangements are being made for movement of prisoners.

(vi) The delay of trials due to absconding accused, non-production of officials and other witnesses and non-cooperation and apathy of the police administration are being cured and steps are being taken to monitor and remove these lapses. Annexure ''A'' annexed to the affidavit dated 8.4.94 contains various details regarding the vans and their conditions in 51 districts.

We record the undertakings given by the Secretary to Government in the two affidavits dated 8.4.94 and 18.4.94. We expect the administration to act as per the undertakings without fail. In the light of the undertakings given to this Court in the two affidavits, we heard the mailer further. Mr. Shakeel Ahmad Khan, amicus curiae, Mr. Chandramauli Kumar Prasad, Addl. Advocate General, argued on various aspects. During the hearing it was represented to us by a few lawyers, particularly Counsel for the State, that in many districts the Prosecutors and Addl. Prosecutors, are not properly and punctually paid for conducting sessions cases and other criminal cases and there is laxity on their part and also on the part of the police officials and departmental witnesses and so such situation should also be remedied. We requested the President of the Advocates Association Mr. S.P. Mukherji to assist us. It turned out that the fees paid to the Government Pleaders, Government Advocates, Addl. Government Advocates, Public Prosecutors, Additional Public Prosecutors, etc. are very meagre and that has contributed to discontentment of Counsel appearing for the Government. What is more, even the meagre fees due to the Counsel are not paid in time and they are driven from pillar to post to receive them. The machinery in that regard is cumbersome, slack and unbusinesslike. Learned Advocate General also appeared and an affidavit of the Secretary, Law Department, dated 16.5.94 was filed. The learned Advocate General discussed the matter with the officers on our request regarding the fees paid to the Counsel appearing for the State. The fees now paid were fixed in 1974 (20 years ago). Long ago it should have been revised. Now, the Government themselves fell that a revision is called for and they have proposed a revision of the fees. The said affidavit contains the details regarding the fees paid to the Counsel appearing for the State Government in the High Court and also in the district courts at present, (as fixed in 1974) and also the-proposed new scale of fees. It is as follwos:

Retaining fees.

Present Retaining fee (1974)

Proposed new retaining fee (1974)

(i)

Advocate General

3000.00

3900.00

(ii)

Government Advocate

1350.00

1755.00

(iii)

Govt. Pleader and Standing Counsel

1200.00

1560.00

(iv)

Public prosecutor and Govt. Pleader in the district

250.00

375.00

(v)

Monthly fee of part- time clerks of the Law Officers of the High Court.

80.00

120.00

(vi)

Monthly fee of the part-time clerks of the Public Prosecutors and Govt. Pleaders in the district courts.

60.00

90.00

Daily Fee.

(i)

Advocate Genral, Bihar

For hearing

805.00

1047.00

For admission

406.00

530.00

(ii)

Government Advocate

For hearing

450.00

585.00

For admission

150.00

195.00

(iii)

Govt. Pleader & Standing Counsel

For hearing

300.00

390.00

For admission

75.00

98.00

(iv)

Public Prosecutor and Govt. Pleader in the districts.

60.00

90.00

(v)

Addl. Public Prosecutor and Assistant Govt. Pleader in the districts.

40.00

60.00

(vi)

Addl. Public Prosecutor in High Court.

100.00

125.00

Fees of lite Junior Counsel.

Junior Counsel of the Advocate General, Addl. Advocate General. Govt. Advocate. Pleader and Standing Counsel.

for hearing

50.00

75.00

for admission

32.00

48.00

For preparing drafts of grounds of first, appeal, second appeal, Misc. Civil Revision, Writ application and other cases.

32.00 (per case)

48.00 (per case)

Stay application, injunction, substitution, counter aftidavit and other inter-focutory matters.

16.00 (consolidated fee for all cases per day) 1

24.00 (consolidated fee for all cases per day)

(4) In addition to the above, for an admission case in which hearing exceeds more than one day and admitted later on, only one fee will be admissible to the Law Officers which is admissible to them in case of dismissal of such cases.

It is stated that the enhancement in the fees as proposed to be paid to the Counsel will be effective when the Government passes an order to that effect. How much time it will take is any body''s guess.

On the other hand, Mr. Mukherji President of the Advocates Association, submitted before us a note dated 18.5.94 slating therein the present fees and the revised fees that will be desirable in the following scales.

Fee of Junior Counsel to Law Officers.

Present fee (fixed in 1974) (per-day for any number of appearance) number of appearance)

Proposed fee (On the Basis of five times) (Per day for any

For hearing

50.00

250.00

For admission

32.00

160.00

For orders

16.00

80.00

For drafting counter- Affidavit and A.G.P. in district court

16.00

80.00

Fee Tor Addl. P.P. in High Court

100.00

500.00

Fee for Addl. P.P. and A.G.P. in district Court

40.00

200.00

Fee for G.P. and P.P. In district court

Retainership

250.00 (per month)

1250.00 (per month)

Admission and hearing

40.00

200.00

For Standing Counsel & Govt. Pleader.

Retainership

1200.00 (fixed in 1982)

3600.00

Admission

75.00

225.00

Hearing

300.00

900.00

For Advocate-General

Retainership

3000.00 (fixed in 1982)

9000.00 (3 limes enhancement)

Admission

406.00

1218.00

Hearing

805.00

2415.00

Fur Government Advocate

Retainership

1350.00 (fixed in 1982)

4050.00 (3 times enhancement)

Admission

150.00

450.00

Hearing

450.00

1350.00

The Advocate General, Government Advocate, Government Pleader and Standing Counsel are not paid any fee for consultation or giving opinion or for settlement of drafts and for appearing in interlocutory matters under the heading ''for orders'' where normally they appear in interlocutory mutters and important order is passed after lull Hedged argument. It is desirable that the aforesaid law officer be paid additional fee for settlement of drafts and for appearance in interlocutory matter and under the heading ''for orders''. Half of the fee, which is paid to them for appearing in admission matter.

We are satisfied that the advocates'' fees fixed as early as 1974, nearly 20 years ago, are very low. It should be suitably revised, taking into account, the inflation, increased cost of living, increased infrastructure required in the profession and the modern standards in Jiving style. The proposed revision and enhancement by the State is only an increase by 50 per cent of 1974 rates. In some cases, it is only 50 per cent. The percentage of enhancement has been made on an ad hoc basis. It is not fixed on any scientific basis nor after evaluating the work qualitatively and quantitatively. We indicated to the Advocate General that the enhancement proposed is too meagre. It is not at all commensurate with the modern requirements and trends, to attract the best talent to conduct cases on behalf of the Government in an effective and proper way. There is a move to introduce central parity of pay in all State Government services. The Law Agency, which is in charge of conducting the cases of the Union Government in the Supreme Court and other Courts, has fixed a scale of fees for the Counsel appearing on behalf of the Government. We have not been furnished those details. There is no reason why the said scale of fees should not be adopted for the Counsel appearing in the States. The learned Advocate General has submitted the following for our consideration:

(i) Fixation of fees for the Counsel appearing for the State in various courts is beyond the jurisdiction of the High Court;

(ii) The point does not directly arise;

(iii) It is for the Government to fix fees of the Counsel;

(iv) The proposed revision is reasonable;

(v) The capacity of the State Government is a relevant factor to be taken, into consideration. The Bihar State is not in a position to pay higher fees.

Mr. Shakeel Ahmad Khan, amicus curiae, appointed by the Court, and Mr. S.P. Mukherji, President, Advocates'' Association, submitted that the steps taken by the Government to remove the lapses and deficiencies regarding want of vans, petrol, etc. as given in the undertakings may be sufficient but in the absence of appropriate and suitable enhancement in the feet; paid to Counsel, the situation will not improve and so the matter requires attention. Mr. Khan suggested a minimal sum of Rs. 3500/- to be paid to each Counsel per mensem. This appears to be a very reasonable request. It was also stated that the fees payable to Counsel is not paid in lime. There is inordinate delay. This sole reason is stated to be want of funds. It is a matter of common knowledge that funds are provided for all other unnecessary matters. That is obvious. It was also submitted by Mr. Khan and Mr. Mukherji that there is heavy rush in the profession and taking advantage of the large number of persons competing for the Government''s briefs, the Government is exploiting the situation. The members of the bar are indirectly compelled to submit to unconscionable or unreasonable bargain. In other words, the bar has no option in view of heavy competition but 16 accept whatever little is paid, though far below the living wages. Our attention was drawn to the observations of the Supreme Court in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, and stress was laid on Article 21 of the Constitution of India also.

We are aware of the fact that the relationship between the Government and its Counsel is a contractual one. Ordinarily Government cannot be compelled to pay fees as stipulated by its Counsel, or any other person. But we are faced with an extraordinary situation herein; the administration of criminal justice is in shambles. It will affect law and order situation. A breakdown on that score will be disastrous. This Court cannot shut it eyes to the realities and the glaring fact that inadequate and improper representation of behalf of the prosecution is one of the important factors, which, has really impeded or affected the administration of criminal justice ii this State. We hope that it is high time that the Government realise its duty and responsibility on this score. Government themselves have fell that the fees now paid are low am it calls for revision. The need for revision is admitted. This is very important. Only the quantum of increase is in issue. In this perspective the pleas taken by the Advocate General do not carry conviction. Moreover this Court is concerned with proper and speedier trial of criminal cases, which alone will guarantee maintenance of law and order and looked al from that angle, this Court has a duly to appraise the realities and remind the authorities to discharge their statutory and public duties and mandates of the Constitution effectively and not make the guarantees a mere farce. This is an additional ground to hold that the pleas taken by the Advocate General are not substantial. Proper remuneration to Counsel appearing on behalf of the Government is a ''sine quo non'' to facilitate speedier, effective and purposeful trial of sessions and criminal cases. We are candidly of this view. Law and order should be properly maintained, it is the duty of all concerned to guarantee the said requirement. To achieve the said goal, effective and speedier trials of criminal cases should be facilitated by the State. Payment of proper fees is an incentive to Counsel. That cannot be denied. The authorities concerned should realise that the proposed enhancement is only by 50 per cent and 50 per cent in few cases, that was fixed in 1974. This is totally inadequate. In the official publication ''India 1993, a Reference Annual'' Publication of the Ministry of Information and Broadcasting, al page 299-300 Consumer Price Index for urban non-manual employees is given. It is as follows:

Table 12.10 Consumer Price Index Number for Urban Non Manual Exployees, (Base 1960-100)

Year

Bombay

Calutta

Madras

Delhi/ New Delhi

All India

1970-71

168

170

175

174

174

1971-72

172

174

188

180

180

1972-73

183

180

203

190

192

1973-74

204

204

231

217

221 (*)

1974-75

241

238

291

262

270

1975-76

246

243

306

273

277

1976-77

255

251

294

274

277

1977-78

269

265

311

288

296

1978-79

285

279

321

303

306

1979-80

315

297

350

321

330

1980-81

347

331

390

352

369

1981-82

393

367

439

395

413

1982-83

440

384

470

428

446

1983-84

493

418

531

468

492

1984-85

538

451

577

508

532

1985-86

568

481

611

551

568

1986-87

612

530

671

597

613

1987-88

666

562

736

645

656

1988-89

130

135

141

135

136

1989-90

139

146

152

143

145

1990-91

154

164

168

156

161

1991-92

180

181

189

177

183

(*) work- ed out 420. By experts called by Court.

I Average is based on 7 indices (April 1987, October 1987) 2. A new series of index numbers on Base may lie converted to Old Base by multiplying the conversion factor 5.32. Conversion factor in respect of Bombay, Calcutta. Madras, Delhi/New Delhi, are 5.32. 4.51, 5.77 and 5.08 respectively.

Tim above formula is a technical one. By generous and useful assistance given to us by Dr. O. Prasad, Sr. Joint Director, Directorate of Statistics and Evaluation, Bihar, and Dr. J.K. Sinha, Deputy Director, Directorate of Statistics and Evaluation, Bihar, we understand the position thus. In 1973-74 the consumer price index for All India is 221. If it is technically worked out on the basis of the table given, it will be 420 in 1991-92. It should be a little more in 1994. Consumer price is nearly double today compared to the figure in 1973-74 when it was only 221. This affords a total and scientific basis to fix the fees at least at double rate that was fixed in 1974. But that is the very minimal. That should be forthwith paid. The fees paid at that minimal are the present figures, worked out on the basis of 1974 fixation of fees. The requirement herein is an appropriate upward revision. What is that figure? How should it be fixed? Who would do so? These are many aspects to be considered on that score. Only professionals can appreciate the problem. Professionals should be consulted. The Chairman of the Bar Council, the President of the Advocates Association, the Advocate. General of the State are the persons to be consulted and their opinion should prevail. We hold so. We are of the view that this is a matter on which the State Government should apply its mind not on an ad hoc basis or in a vacuo but in a real business sense, keeping in view the demands of the profession in modern times. A committee of experts in the profession, as stated above, should be entrusted with the task to work-out details within a period of 3 months. Besides the above, the amount payable to the Government Counsel in all courts should be made available at least within a period of two months from the dale on which it falls due and there should be no delay in the payment of fees at all. Only if the above realities are reckoned, the wheels will move without impediment or obstruction so as to facilitate speedier, effective and proper administration of criminal justice. We direct the Government to consider the above matters without undue delay (at least within 3 months) and lake proper steps. The undertakings given in the affidavits dated 8.4.94 and 18.4.94 should be complied with. The hardship of the Counsel appearing for the State should be redressed. These matters should be given effect to, within a period of three months from today.

Before closing, we want to advert to one aspect highlighted by all Counsel, that was noticed in Government file, in considering the payment of enhanced fees to Government Counsel. The then Additional Financial Commissioner has made certain observations in the file completely condemning the Counsel appearing for the State and has even attributed want of bona fides, collusion with opposite side, etc. besides inefficiency. Such sweeping remarks are unfounded and have no basis and should be deprecated. We do so. We required the presence of the officer, to explain but he was not available. We hold that the sweeping general remarks scandalising the profession was unjustified, unbecoming and should stand self condemned.

For passing final orders the writ petition will be posted to 30.8.94. The State Government shall file an affidavit showing the compliance of the various undertakings and other directions contained in this order.

We are grateful to the following persons who assisted the Court in a great measure in this proceeding and we place on record the useful services rendered by them at various stages.

(1) Justice Mr. S.C. Mukherji.

(2) Mr. Shakeel Altmad Khan, Sr. Advocate.

(3) Mr. S.P. Mukherji, President, Advocates Association.

(4) Advocate General Mr. Rameshwar Prasad.

(5) Addl. Advocate General Mr. Chandramauli Kumar Prasad.

(6) Dr. O. Prasad. -] Sr. Joint Director

(7) Dr. J.K. Sinha. -

-] and Deputy Director respectively -] of Directorate of -] Statistics and -] Evaluation, Bihar.

A.K. Ganguly, J.

I agree.