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TMI Blog2018 (3) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... is possible to provide any other suitable forum for such appeals so as to ensure enforcement of fundamental right of speedy justice or how else the situation can be remedied. The steps which need immediate consideration include timely filling up of vacancies at all levels with the best available talent. There is need to consider in the light of observations hereinabove and all other relevant considerations whether there should be a body of full time experts without affecting independence of judiciary, to assist in identifying, scrutinizing and evaluating candidates at pre-appointment stage and to evaluate performance post appointment. The Government may also consider what changes are required in the process of evaluation of candidates at its level so that no wrong candidate is appointed. What steps are required for ensuring righteous conduct of Judges at later stage is also an issue for consideration. We consider it necessary, with a view to enforce fundamental right of speedy access to justice under Articles 14 and 21 and law laid by this Court, to direct the Ministry of Law and Justice to present at least a quarterly report on strikes/abstaining from work, loss caused a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. When the matter came up for consideration before this Court, following order was passed : The grievance of the petitioner is that he has been in custody for more than ten years. He has neither been granted bail nor his appeal is heard. It is stated that there is no likelihood of the appeal being heard before the High Court in the near future. While we are not inclined to grant bail, we issue notice confined to the question as to how the situation can be remedied ensuring that the appeal is heard within a reasonable time at the appellate forum. Issue notice. Notice be also issued to the Convenor, National Mission for Justice Delivery and Legal Reforms i.e. the Secretary Justice Union of India and also the Attorney General of India. Shri Gopal Subramanium, learned senior counsel who is present in the Court is requested to assist the Court as amicus. 5. Accordingly, we have heard learned Attorney General and the learned amicus on the question as to how the problem of delay in hearing of the appeals can be remedied. SUBMISSIONS OF THE LEARNED AMICUS 6. Learned Amicus submitted that timely justice is essential for the Rule of Law. Access to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) Making use of technology. 7. Reference was also made to Case Management Criminal Procedure in England and Wales. 8. Learned Amicus further submitted that in appeals against acquittal efforts should be made to weed out unmeritorious appeals. Competent Government advocates should be appointed by a fair and transparent mechanism as laid down in State of Punjab versus Brijeshwar Singh (2016) 6 SCC 1 . 9. Vacancies of the High Court Judges should be filled up well before the date a judge demits the office. Ad hoc judges should be appointed to deal with the pending appeals. 10. Wherever there is higher pendency of appeals, the same can be transferred to the courts of concurrent jurisdiction of other States. Technology ought to be used to facilitate speedy conduct of trials and disposal of appeals. Electronic copy of all papers should be served as soon as a charge sheet is filed. The technology can be used for speedy and summary disposal of certain cases such as the traffic offences. Evidence can be recorded by video conferencing, especially for Doctors and investigating officers who may be on outstation job and engaged in official duties which suffer if they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 has been notified to streamline the conduct of cases in Commercial Division and Commercial Courts. Amendments have been made in the Arbitration and Conciliation Act, 1996 and the Negotiable Instruments Act, 1881. In pursuance of resolution of Chief Justices Conference held in April, 2015, Arrears Committees have been set up to clear backlog of cases pending from more than five years. The Supreme Court has also constituted Arrears Committee to formulate steps and reduce pendency of cases in High Courts and district courts. National Legal Services Authority provides mechanisms for access to justice for the poor. Lok Adalats have been held resulting in disposal of number of cases on the basis of compromise not requiring adjudication, apart from adjudication in public utility Lok Adalats. The Government has approved scheme for engaging Nyaya Mitras to assist the litigants. 12. Learned Attorney General submitted that delay in disposal of appeals can be tackled by appointing more judges and by better coordination and planning. It was also submitted that by proper scrutiny, application for leave to appeal or even appeals can be summarily disposed of which will reduce the burden o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ISSUE taken up for consideration was delay in disposal of criminal cases where stay was granted by the High Court. On consideration of a report, the Court noted: (a) As high as 9% of the cases have completed more than twenty years since the date of stay order. (b) Roughly 21% of the cases have completed more than ten years. (c) Average pendency per case (counted from the date of stay order till 26-7-2010) works out to be around 7.4 years. (d) Charge-sheet was found to be the most prominent stage where the cases were stayed with almost 32% of the cases falling under this category. The next two prominent stages are found to be appearance and summons , with each comprising 19% of the total number of cases. If appearance and summons are considered interchangeable, then they would collectively account for the maximum of stay orders. 18. This Court directed the Law Commission to examine the matter with a view to set up additional courts to eliminate delays. 19. Accordingly, Law Commission examined the matter in its 245th Report given in July, 2014 and recommended review of cadre strength. The Commission noted that the system was unable to deliver ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Constitutional Courts. 21. In Akhtari Bi versus State of M.P. (2001) 4 SCC 355 , this Court requested the Chief Justices of the High Courts to take immediate effective steps for disposal of criminal appeals pending for more than five years. 22. The matter was considered by the Joint Conference of Chief Ministers and the Chief Justices held in April, 2016 and it was resolved: 8. DELAY AND ARREARS COMMITTEE : xxx xxx xxx Resolved that (i) all High Courts shall assign topmost priority for disposal of cases which are pending for more than five years; (ii) High Courts where arrears of cases pending for more than five years are concentrated shall facilitate their disposal in mission mode; (iii) High Courts shall progressively thereafter set a target of disposing of cases pending for more than four years; (iv) while prioritising the disposal of cases pending in the District Courts for more than five years, additional incentives for the Judges of the District Judiciary be considered where feasible; and (v) efforts be made for strengthening case-flow management rules. 23. The available figures (Please refer to Court News ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge number of vacancies in such Courts shows the difficulty in identifying adequate number of suitable persons for Constitutional Courts. Needless to say that nature of work before the Constitutional Courts particularly laying down of law is time consuming. Such Courts cannot be overburdened. 24. The Arrears Committee of this Court considered the issue of filling up of vacancies in subordinate courts and the issue of arrears. It was noted that while better monitoring, better management and other steps such as the Central Selection may help speedy disposal in subordinate courts, the working of constitutional courts stands on different footing. There being mismatch in pendency and disposal, the Committee recommended an interaction with the stakeholders to explore the issues of judicial reforms including reengineering of structure of administration of justice and the legislative changes necessary for the constitutional goal of speedy justice ( Minutes of the meeting of the Arrears Committee held on 23rd March, 2017 ) . Accordingly, a meeting with the stakeholders was held on 8th April, 2017. The issues considered were: i) Decongestion of Supreme Court and High Courts f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposal was less than the institution and as many as 16.29 lakh cases were more than five years old. Figure of 10 year old cases is 7.43 lakhs in the High Courts and more than 20 lakhs in the subordinate courts. Thus, there is need for re-engineering of the structure of administration of justice by which the Supreme Court and the High Courts may discharge only core constitutional functions while the statutory appeals or other statutory functions can be dealt with by an alternative mechanism by courts of appeal which, in hierarchy will be higher to the district judges but below the High Court. Such cadre may comprise of members drawn partly by selection from the Higher Judicial Service and partly from the Bar through Centralised Recruitment Mechanism. It may be possible to lay down disposal norms/targets to be achieved by such benches and in light thereof number of benches within the jurisdiction of each High Court may be assessed. Pending appeals or at least certain categories of appeals can be transferred to such Benches. Based on performance, integrity and suitability, members of the appellate benches may be considered for elevation to the High Courts. Remedy to move the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is to reduce number of appeals, set up specialist courts/tribunals to reduce the inflow of work to the High courts. 29. Desirability of amending provisions of direct appeal to this Court was also considered in Gujarat Urja Vikas Nigam Limited versus Essar Power Limited (2016) 9 SCC 103 . Therein, this Court considered the unique role of the highest court and observed that overburdening of Constitutional Courts was undesirable for functioning of the Constitution. Heavy work of routine nature before Constitutional Courts affected their assigned core role. Law Commission was asked to look into the matter. 30. In 272nd report, the Law Commission observed that the forum for challenging the order of tribunal should be appellate tribunals, which decision should be final. No statutory appeal should be provided before the High Courts or Supreme Court in routine manner (8.23 of the Law Commission Report) . No action appears to have been taken on the said recommendations. 31. Since one trial and one appeal are considered to be components of fair system of administration of justice in criminal cases of serious nature (Dadu alias Tulsidas versus State of Maharashtra (2000) 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll up all the vacancies with the best available talent, the Department of Justice, Government of India vide letter dated 28th April, 2017, addressed to the Secretary General of this Court, stated that the idea of Central Selection Mechanism ought to be considered. The said letter was treated by the then Chief Justice of India as Suo Motu Writ (Civil)No. 1 of 2017 (In Re: Central Selection Mechanism for Subordinate Judiciary versus Union of India Ors ) and notices were issued. Learned amicus gave a note on the Central Selection Mechanism which was circulated to all the States and the High Courts vide order dated 28th July, 2017 ( 1. We are tentatively of the view, that the objections raised by a few of the High Courts for centralization of the selection process of Subordinate Judges, have been suitably dealt with in our order dated 10.7.2017. It however seems, that some confusion still persists. This obviously is out of a possible mis-communication. We therefore, consider it just and appropriate to request Mr. Arvind P. Datar, learned Amicus Curiae, to prepare a 'Concept Note', highlighting the various aspects of our order dated 10.7.2017 and indicating how the objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country. 969. The result of this declaration is that the Collegium System postulated by the Second Judges case [(1993) 7 SCC 441] and the Third Judges case [Spl. Ref.1 of 1998, In Re.1998 7 SCC 739] gets revived. However, the procedure for appointment of Judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning. We had requested the learned counsel, on the close of submissions, to give suggestions on the basis that the petitions are dismissed and on the basis that the petitions are allowed. Unfortunately, we received no response, or at best a lukewarm response. 990. All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium System lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium System, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the Collegium comprising the four seniormost puisne Judges of the Supreme Court. They shall take the following factors into consideration: 1256.1. Eligibility criteria: The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the Collegium (both at the level of the High Court and the Supreme Court) for the appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time. 1256.2. Transparency in the appointment process: The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussion including recording the dissenting opinion of the Judges in the Collegium while making provision for the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vement in working of Collegium is a felt necessity as held above. Five Judge Bench of this Court directed setting up of the Secretariat and also to incorporate other factors for improved and effective working of the collegiums system. This apart, corrective measures against post appointment conduct or inadequate performance or failure to uphold righteous conduct need to be evolved. These aspects require urgent attention of concerned authorities. 40. We may particularly note that if a High Court remains without a permanent Chief Justice, process of speedy justice certainly suffers. In spite of timeline in the MOP for appointments in pursuance of Judgement of this Court in Supreme Court Advocates-on-Record Association and Ors. versus Union of India (1993)4 SCC 441, para 478 that there will be no Acting Chief Justice for more than one month (Para 5 of the Memorandum showing the Procedure for Appointment and Transfer of Chief Justices and Judges of High Courts (MOP). 5. Initiation of the proposal for the appointment of Chief Justice of a High Court would be by the Chief Justice of India. The process of appointment must be initiated well in time to ensure the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formance of the judicial system as per observations in 245th Report of the Law Commission so that there is non-mandatory timeline for decision of cases and accountability consistent with the right of speedy justice. Such mechanism may provide norms for performance measurement for all judges in the hierarchy. The same has to be done without affecting independence of judiciary. There is also need for an in-house mechanism manned by experts but with safeguards consistent with independence of judiciary for measures against erring Judges other than impeachment as observed in Re: Shri Justice CS Karnan (supra). Reforms in the legal profession remedying uncalled for strikes. 42. We may also deal with another important aspect of speedy justice. It is well known that at some places there are frequent strikes, seriously obstructing access to justice. Even cases of persons languishing in custody are delayed on that account. By every strike, irreversible damage is suffered by the judicial system, particularly consumers of justice. They are denied access to justice. Tax payers money is lost on account of judicial and public time being lost. Nobody is accountable for such loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested the Law Commission to look into all relevant aspects relating to regulation of legal profession (Para 58) . 47. The Law Commission, accordingly, examined the relevant aspects relating to regulation of the legal profession. The Law Commission in its 266th Report found that such conduct of the advocates affects functioning of courts and particularly it contributes to pendency of cases. It analyzed the data on loss of working days on account of call of strikes. The analysis is as follows : 7.2. In the State of Uttarakhand, the information sent by the High Court for the years 2012-2016 shows that in Dehradun District, the Advocates were on strike for 455 days during 2012- 2016 (on an average, 91 days per year). In Haridwar District, 515 days (103 days a year) were wasted on account of strike. 7.3 In the case of the State of Rajasthan, the High Court of Judicature at Jodhpur saw 142 days of strike during 2012- 2016, while the figure stood at 30 for the Jaipur Bench. In Ajmer District courts, strikes remained for 118 days in the year 2014 alone, while in Jhalawar, 146 days were lost in 2012 on account of strike. 7.4 The case of Uttar Pradesh appears to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not resort to strike or abstention from the court work. 48. Thereafter, the Law Commission referred to observations in the judgment of this Court in Ex-Capt. Harish Uppal case (supra) that there should be no strikes by the Bar except in rarest of rare situations which should also not exceed one day. The Bar Councils were called upon to take appropriate action in the matter. The Law Commission noted that the strikes were continuing and causing great obstruction to the access to justice. It was observed : 8.3 In spite of all these, the strikes have continued unabated. The dispensation of justice must not stop for any reason. The strike by lawyers have lowered the image of the courts in the eyes of the general public. The Supreme Court has held that right to speedy justice is included in article 21 of the Constitution. In Hussainara Khatoon v. Home Secy., State of Bihar; and in some other cases, it was held that the litigant has a right to speedy justice. The lawyers strike, however, result in denial of these rights to the citizens in the State. 8.4 Recently, the Supreme Court while disposing off the Criminal Appeal of Hussain Anr. v. Union of India (201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution of the Bar Councils and their functions also require the introduction of a few provisions in order to consolidate the function of the bar councils in its internal matters as well. 50. Since the strikes are in violation of law laid down by this Court, the same amount to contempt and at least the office bearers of the associations who give call for the strikes cannot disown their liability for contempt. Every resolution to go on strike and abstain from work is per se contempt. Even if proceedings are not initiated individually against such contemnors by the court concerned or by the Bar Council concerned for the misconduct, it is necessary to provide for some mechanism to enforce the law laid down by this Court, pending a legislation to remedy the situation. 51. Accordingly, we consider it necessary, with a view to enforce fundamental right of speedy access to justice under Articles 14 and 21 and law laid by this Court, to direct the Ministry of Law and Justice to present at least a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in its contempt or inherent jurisdiction of this Court. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zing and evaluating candidates at pre-appointment stage and to evaluate performance post appointment. The Government may also consider what changes are required in the process of evaluation of candidates at its level so that no wrong candidate is appointed. What steps are required for ensuring righteous conduct of Judges at later stage is also an issue for consideration. (iv) Pending legislative measures to check the malady of frequent uncalled for strikes obstructing access to justice, the Ministry of Law and Justice may compile information and present a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in the contempt or inherent jurisdiction of this Court. The Court may direct having regard to a fact situation, that the office bearers of the Bar Association/Bar Council who passed the resolution for strikes or abstaining from work or took other steps in that direction are liable to be restrained from appearing before any court for a specified period or till they purge themselves of contempt to the satisfaction of the Chief Justice of the concerned High Court based on an appropriate undertaking/conditions. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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