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TMI Blog2017 (1) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... Nishant Katneshwarkar, Ravindra Chingale, Kshatrshal Raj, K. Enatoli Sema, Amit Kumar Singh, K. Luikang Michael, Elix Gangmei, Hematika Wahi, Puja Singh, Aagam Kaur, C.K. Sasi, Manikrushnan, Ashok K. Srivastava, Aniruddha P. Mayee, A. Selvin Raja, Charudatta Mahendrakar, Sunil Fernandes, Puneeth K.G., Advs. for Parekh & Co., Abhishek Chaudhary, Anitha Shenoy, Kamal Mohan Gupta, T.V. Ratnam and T.G. Narayanan Nair, Advs. JUDGMENT Dr. D.Y. Chandrachud, J. 1. These Appeals arise from a batch of interlocutory orders of the Allahabad High Court in a criminal writ petition (1786 of 2003). On 9 April 2003 a learned Single Judge of the High Court admitted a writ petition filed by the second and third Respondents and stayed an order dated 7 December 2002 of the Additional Chief Judicial Magistrate, Gautam Budh Nagar, directing the registration of a case against them. The case was adjourned before the High Court on several dates on which it was listed. As a result of the adjournments, on the date of the institution of the Special Leave Petitions, the writ petition was pending in the High Court for six years. 2. This Court was concerned with the pendency of similar cases before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Government of India); 78th Report of the Law Commission of India on "Congestion of under trial prisoners in jails", February, 1979 (Ministry of Law and Justice, Government of India); 79th Report of the Law Commission of India on "Delay and Arrears in High Courts and other Appellate Courts", May, 1979 (Ministry of Law and Justice, Government of India); 121st Report of the Law Commission of India (method of review of judge strength at regular intervals), 1987; 124th Report of the Law Commission of India - The High Court Arrears - A fresh look, 1988; Report of The Arrears Committee (Three Chief Justices Committee: Kerala, Calcutta & Madras), 1989-90. 5. The 120th Report of the Law Commission on Manpower Planning in the Judiciary (1987) suggested a formula for the fixation of judge strength, adopting a demographic approach. The Report suggested that demographics should be the basis for fixation of judge strength. Its rationale was set out thus: As to the possible accusation that the working out of the ratio of Judges strength per million of Indian population is a gross measure, the Commission wishes to say that this is one clear criterion of manpower planning. If legislative repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rength. In a letter dated 2 April 2013, the then Prime Minister of India also accepted the recommendation of the Chief Justice of India to double the existing number of courts. When this issue was taken up at the Joint Conference of Chief Ministers and Chief Justices in 2013 it was resolved to create new posts of judicial officers with requisite staff and infrastructure. 8. In order to address the issue of arrears, a policy decision was taken by the Union government to constitute fast track courts and funds were allocated under the Eleventh Finance Commission for a period of five years (2000-05). When the issue of the discontinuation of fast-track courts came up, this Court in Brij Mohan Lal v. Union of India (2012) 6 SCC 502 held that the policies of the State should not derogate from undermining judicial independence and if a policy was counter-productive or liable to increase the case load, the court intervene judicially. Though this Court desisted from interfering with the policy decision in regard to discontinuing fast track courts, keeping in mind the huge pendency of cases, a direction was issued for the creation of additional posts in the district judiciary to the extent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for Strengthening the Judiciary towards Reducing Pendency and Delays. III. Preparation of National Arrears Grid. IV. National Mission for Justice Delivery and Legal Reforms. V. National and State Legal Service Authorities constituted under Legal Service Authorities Act, 1987. VI. National Court Management System (as proposed by the Chief Justice of India). The terms of reference of the 19th Law Commission (adverted to by the Union government in its affidavit dated 18 January 2012) were broad enough to include consideration of the steps necessary for tackling judicial arrears. Clause (h) of the terms of reference was: H. To consider and to convey to the Government its views on any subject relating to law and judicial administration that may be referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs). Hence, the Union Government urged that the Law Commission could be requested to address on the basis of a scientific study, the issue of setting up additional courts and providing additional infrastructure for ensuring access to justice and speedy disposal of cases. The Law Commission was requested by the order of this Court dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to the backlog.. In order to address both these concerns, we use the Rate of Disposal Method to provide for two sets of judges: (a) Number of judges required to dispose of the existing backlog and (b) Number of judges required for ensuring that new filings are disposed of in a manner such that further backlog is not created. Under the Rate of Disposal Method, the Commission first looked at the current rate at which judges dispose of cases. Next we determined how many additional judges working at a similar level of efficiency would be required so that the number of disposals equals the number of institutions in any one year time frame. As long as the institution and disposal levels remain as they currently are, the Courts would need these many additional judges to keep pace with new findings in order to ensure that newly instituted cased do not add to the backlog. Second, working with the current rate of disposal of cases per judge, we also looked at how many judges would be required to dispose of the current backlog. We have defined the backlog as those cases which have been pending in the system for more than a year. The method has been explained thus: (1) The method ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame, in number of years, within which the backlog needs to be cleared. 12. The Law Commission has noted that in the past, it was suggested that judges required to dispose of the backlog are needed only until the backlog is cleared. Hence, it was proposed that short-term, ad-hoc appointments should be made from amongst retired judges for clearing the backlog. However, the previous experience of the functioning of ad hoc appointments in the district judiciary reflected serious concern especially of the lack of accountability in their functioning and performance. Moreover, additional infrastructure would be required to be created even for ad-hoc judges appointed in the system. The proposal to have a shift system has been resisted by the Bar since it results in an increase in the working hours. 13. The note submitted by Professor Dr G Mohan Gopal raises certain concerns about the rate of disposal method suggested by the Law Commission. These concerns as set out in the note submitted by him, are summarized below: i) The definition of backlog (difference between institution and disposal) does not take into account the fact that every case requires a reasonable period for its disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rim approach which augments the disposal rate method of the Law Commission with the prevailing unit system of the High Courts to attribute a weightage to cases based on their nature and complexity. Under the unit system the High Courts have established disposal norms for the district judiciary based on units allocated for disposal of different cases. On the basis of the units prescribed, performance is rated from "excellent" and 'very good' to 'unsatisfactory'. The approach which has been suggested, based on the unit system, is as follows: Applying The Unit System to Assess Required Judge Strength (i) Number of judges required to dispose of the annual "flow" of new cases ("break even") 25. Every court should calculate in units its average annual filing over the previous five years for all types of cases. 26. Divide the annual filing units above by the number of annual units required to be disposed of by a judge for VERY GOOD performance. 27. This will give for each court, the number of judges required to ensure "break even", i.e., disposal equals the number of new cases filed every year in that court. (ii) Number of judges required for disposal of backlo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r temperatures have in the absence of basic infrastructural facilities including continuous power supply resulted in the institutionalization of morning courts in several districts. The convenience of ordinary litigants and witnesses with limited resources, who travel from afar without proper means of transportation cannot be disregarded by the presiding judicial officer. The functioning of courts which lack even rudimentary infrastructure is affected, as a result. In a number of states, it has been the experience that there are impediments faced by the district courts including strikes of lawyers and abstention from work for causes unrelated to the functioning of the judge or court concerned. The loss of mandays on account of such causes results in a wastage of productive judicial time. Hence, it would not be correct to assert that the rate of disposal method places an incentive upon the unproductive or inefficient. Ground realities cannot be ignored merely on the basis of statistics. 17. Another aspect which merits emphasis is that while prescribing units for disposal, a robust attempt must be made by the High Courts to ensure that due importance is given to the disposal of old ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Law and Justice, Government of India is broadly in agreement with the recommendations made by NCMS Committee as indicated above. The methodology suggested by NCMS Committee can be adopted for determining the adequacy of judge strength with following stipulations. (i) All High Courts must evolve uniform data collection and data management methods under the ongoing E-Courts Mission Mode Project and make available online Real time Data on pendency of various categories of cases to the respective State Governments and Central Government. (ii) The trigger for creation of new posts must be activated only after 90% of the sanctioned strength has been filled up, failing which the creation of additional posts will have no impact or consequence on reduction of pendency. 20. The report which has been submitted to this Court by the Chairperson, NCMSC observes that in the long term, the judge strength of the courts in the district judiciary will have to be assessed by a scientific method to determine the total number of judicial hours required for disposing of the case load of each court. In the interim, a weighted disposal approach, as explained above has been suggested. Since the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso indicated. In pursuance of these directions, an affidavit has been filed on behalf of the Union Ministry of Law and Justice. The affidavit indicates that the Department of Justice had submitted the following proposals to the Fourteenth Finance Commission involving a total requirement of Rs. 9749 crores: State-wise and sector-wise details have been annexed to the affidavit. The Fourteenth Finance Commission endorsed the proposals of the Department of Justice and has urged the state governments to use the additional fiscal allocation provided in the form of tax devolution to meet the requirements of the state judiciaries. The Prime Minister of India has addressed a letter dated 23 April 2015 to the Chief Ministers calling upon them to allocate funds required for the activities recommended by the Fourteenth Finance Commission in the state budgets from 2015-2016 to improve the working of the judicial system and provide speedy justice. Following the joint conference of Chief Justices of High Courts and Chief Ministers of States held in April 2015, the Union Minister of Law and Justice addressed letters to the Chief Justices and Chief Ministers in June 2015 requesting them to insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance to the High Courts as is required for proper utilization of 14th Finance Commission funds; and (ii) grant a one time exemption for 2016-17 to facilitate proper utilization. The Union Minister of Law and Justice has since addressed communications to the Chief Ministers of States requesting that the state Finance Secretaries should assist the registries of the High Courts to prepare perspective plans/individual plans for activities to be undertaken in the justice sector. A letter has been addressed to the Chief Justices on 26 September 2016. The affidavit explains that necessary mechanisms have been set up under the resolutions of the Conference of Chief Justices and Chief Ministers and of the Chief Justices respectively. 22. Having regard to the above background, we now proceed to formulate our directions in the following terms: i) Until NCMSC formulates a scientific method for determining the basis for computing the required judge strength of the district judiciary, the judge strength shall be computed for each state, in accordance with the interim approach indicated in the note submitted by the Chairperson, NCMSC; ii) NCMSC is requested to endeavour the submission of it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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