Separation of Powers between the legislature, executive and the judiciary was a concept that was carefully chosen and incorporated into our constitution after being subject to extensive debate regarding its pros and cons and its suitability to the Indian ethos. The separation of powers as a concept found acceptance, as it enables these three vital pillars of a democracy to function with ‘Independence’. This ‘Independence’ has only permeated the functional aspect in so far as the judiciary is concerned. This is because the judiciary is dependent on both the executive and legislature in so far as funds are concerned. Therefore viewed from this angle the independence of the judiciary is severely compromised as the very existence of this vital third pillar can be controlled indirectly by the other two pillars. Thus the concept of separation of powers has often lead to a complete segregation of the ‘judiciary’ in so far as budgetary allocation is concerned.
Budget allocation for the judiciary has traditionally been hovering around an abysmal 0.4% of the total budget. The said budgetary outlay is grossly inadequate to meet the requirements of judiciary such as setting up of new courts/ tribunals and to spruce up the already existing infrastructure with a view to bringing down the pendency from a staggering 3.3 crore cases. Former Chief Justice of India, R.M.Lodha had strongly voiced the anguish felt by the judiciary in relation to the negligible budgetary outlay on the eve of the presentation of the budget for 2014-2015.
The present percentage of budgetary outlay for the judiciary is very low as compared to the budgetary outlays of even countries like Costa Rica, Honduras and El Salvador. These countries have made amendments in their respective constitutions in order to maintain fixed rates of their annual budgetary outlay. In Costa Rica, judiciary is allocated 6% of the annual budgetary outlay. In comparison, our budgetary allocation for the judiciary is shamefully inadequate.
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Another aspect is that judiciary has very limited means of raising funds viz. court fees, fines imposed by criminal courts, costs imposed by civil courts. They are woefully inadequate even for its mere upkeep and maintenance. At present, the funds raised through these sources go directly into the government’s coffers. Judiciary should be given the freedom to retain and appropriate the funds generated through these sources.
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It is vital that the third pillar of the constitution should have some control or have a significant say in deciding the budgetary allocation meant for it. In fact, the Judiciary should be allowed to present its own financial needs. The judicial allocation should be done in a transparent and accountable manner and should inherently linked with its needs. In fact the budget should be considered as a means to increase both judicial capacity and judicial accountability.