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A recent announcement by Nalsar University of Law, Hyderabad to offer MBA Course in Court Management has sparked some discussions in the academic circles. While part of the discussions arise from the discomfort of having a “business” graduate to deal with the court management, the other area of concern is that MBA in Court Management as a course is available not to law graduates alone, but to “graduate of any discipline”.
The genesis of ‘court managers’ is in the recommendation of Thirteenth Finance Commission, which provides,“The department [of Justice] has also proposed creation of the post of Court Managers in every judicial district to assist the judiciary in their administrative functions.” The aim of the recommendation to create the post of Court Managers (initially until 2015) is for “providing support to judges for performing their administrative duties would allow them more time for their judicial functions.” It is arguable, and at least I am of the view, that administrative functions of a judge feeds into the judicial functions, and it is not feasible to separate the two. Those litigating are obviously aware of the importance of rosters, cause lists, listing departments, case management issues, and the like.
Appointment of court managers is an unwarranted incursion on the duties and responsibilities of the judges – especially when the judges retain the overriding power to fix dates of cases including their position in the cause lists. It is submitted that the “providing support to judges” means precious little because what the Constitution expects of a judge has to be done by him or her, and cannot be delegated to the court manager.
As Gopal Subramanium has also suggested in his article “When Judges Don’t Adjudicate Enough”, subtle mechanisms may be deployed that tend to erode the legitimacy from the system. He refers to the principle of Constitutional Morality and states that the Government can pervert the Constitution “without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution”.
Incidentally, as the Gujarat High Court’s advertisement for appointment of court manager suggests, the courts managers shall be assisting the ‘Registrar General’ in the High Court – this then raises question as to how court managers are providing support to ‘judges’ so that they have more time perform judicial functions? No high courts appears to have set out precisely as to which administrative function ordinarily assigned to a judge is a court manager performing allowing a judge more time to deal with judicial matters. In fact, it involves a constitutional question whether the administrative powers of a judge could be delegated (by euphemistically calling it ‘assisting’) to a court manager.
I admit that one doesn’t need to be a lawyer to have a sense of justice, but selection of court managers from those MBAs having specialisation in ‘Court Management’ by the High Courts must raise alarms. On the one hand the legal education in this country is struggling to cultivate a sense of justice in law students, and on the other hand we expect that a two year MBA course, with Court Management as “major elective” would be able to inculcate a sense of justice – which must form the central theme for training of court manager. As an aside, possessing a sense of justice is not a criteria for being a judge let alone a court manager!
In my reading of the Constitution, the experience at the bar to be eligible to become a judge of the subordinate or a high court is not without consequence. Since, judges of these courts are expected to perform vital administrative functions also (which in my view cannot be divorced from judicial functions), the requirement of having spent some time at the bar (in understanding the woes of the indigent litigants) ought to be a sine qua non. The Allahabad High Court has fixed the following conditions as eligibility criteria, which as one can see makes no reference to requirement of any prior experience of litigation or law:
The person appointed as Court Manager shall possess following qualifications:
(i) The Court Manager shall have M.B.A. Degree or Advanced Diploma in General Management from a recognised University/institution of India.
(ii) He shall have minimum 10 years experience in the field of management, experience/training in I.T Systems Management, H.R.Management, Financial Systems Management.
(iii) He shall not be more than 40 years of age.
(iv) He should have excellent communication skills.
(v) He should have excellent Computer application skills.
With no mandatory pre-requirement in training in law or any other social subjects, and without prior litigation experience, the Allahabad High Court expects that court managers to “ensure that the Court meets standards established by the High Court on access to justice, legal aid, alternative dispute mechanisms and are user friendly.” Incidentally, the court manager is expected to himself devise ‘standards’ on ‘access to justice’, ‘legal aid’ and ‘alternative dispute resolution’ and then also assess whether those standards have been met. Since, a court manager (a temporary employee) is required to report to judicial officers, we must not expect him to tell the judge that his decisions fall short of the standards expected of him?
The Allahabad High Court further expects a court manager to “ensure that the Court meets quality of adjudication standards established by the High Court”. In my view, it is beyond the capability as well as job description of the court manger to “ensure” that the court meets the quality of adjudications standards set by it – it is simply put, the primary responsibility of each judge himself. I am surprised as to how the High Courts have allowed court managers otherwise holding qualification to be business managers to ‘judge’ the judges of superior courts on whether their judgments meets the quality of adjudication. This is nothing short of what could be called as an ‘affront to justice’.
The Allahabad High Court further provides that,
“[Court manager] shall work on policies and standards, based on applicable directives of superior Courts, establish the performance standards applicable to the Court (including on timeliness, efficiency; quality of Court performance; infrastructure; and human resources; access to justice; as well as for systems for Court management and case management.”
I have very strong reservations regarding the ability of court managers to assess the social needs to the litigants and the lawyers keeping the overarching constitutional values and jurisprudence in mind. The last thing we want is ‘corporatisation’ of courts where each case is seen only as a pending docket, and every litigant who could be ‘charged’ for accessing a ‘service’. Dispensation of justice by courts is neither a business nor a service, it is a fundamental condition on which the social contract symbolised by the Constitution rests.
The case of court managers in Madras High Court should probably differ from certain other high courts because Madras High Court at least provides that preference would be given to candidates who have ‘qualification’ and ‘experience’ in law. The Bombay High Court also provides for a similar preference for lawyers.
Administration of justice is as much the business of judges as is dispensation of justice. While judges are at liberty to avail the services of law clerks and amicus curiae that could help them, inter alia, in delivery of better judgments, and perform the vital task of ‘shepherdising’ the law. Likewise, given the competing priority of administration of justice, it cannot be disputed that able assistance on the administrative side, separate from officers of subordinate judiciary, would be of great help. This would also ensure that appropriate feedback from the litigants reaches to the judges that formulate the policies affecting not only administration of justice but also dispensation of justice. Therefore, while court managers could play an important role, the institution needs to be established, maintained and protected – for it perform efficiently and as per the aims and objective. A logical corollary to the independence of lawyers and judges would be that the independence of the persons assisting them, either on the judicial or on the administrative side, should also be protected.
The case of court managers in India is a rather curious one. Like many things in India, sufficient thought does not appear to have been given prior to introduction of court managers. While setting up of an institution to audit the judicial system – as first suggested by Gopal Subramanium, is imperative, court managers certainly are in no position to perform those tasks. We need to develop and empower the institution further if we really expect ‘court managers’ to be harbingers of change. However, given that each High Court seems to have different expectations from court managers, we will have to wait and see whether and what difference would court managers be able to make. There is some virtue even in collection of statistics by feeding data in the National Arrears Grid, but let us see if the Government takes it further by analysing that data and devising appropriate response.
Talha Abdul Rahman is a Shell Centenary Chevening Scholar and an Advocate in the Supreme Court of India.