Krishanakant Tamrakar vs The State of Madhya Pradesh

2.1 The available figures show that long pendency of cases particularly of more than five years remains a serious challenge. In High Courts, 16.29 lakhs cases were more than five years old. 7.43 lakh cases were more than 10 years old. Since current disposal itself was less than the institution of fresh cases, there was no likelihood of old cases being decided in a reasonable time. There could not be increase of strength of High Court Judges beyond a limit. The system could not be top heavy. Volume of work in the High Court was likely to further increase on account of increased disposal of cases in subordinate courts with the increased strength of judges, infrastructure and other steps being taken. Disposal of cases in subordinate courts is not enough, if the same are thereafter held up in the High Courts. New laws are being enacted providing statutory remedies before the High Courts. Moreover, oversight mechanism for judges of the Constitutional Courts is not the same as for other Judges. While, there can be no doubt about need for such protection, appointment of large number of such judges can be counter productive. If number of Constitutional Courts is to be increased to match the volume of work being entrusted to such Courts, it may have its implication unless it is possible to find sufficient number of suitable persons. The fact that there are large number of vacancies in such Courts shows the difficulty in identifying adequate number of suitable persons for Constitutional Courts. Nature of work before the Constitutional Courts particularly laying down of law is time consuming. Such Courts cannot be overburdened. [Para 23] [1113-C-E; 1114-A-B]

2.2 In 124th Report of the Law Commission of India (1988) titled “High Court Arrears – A Fresh Look”, the Law Commission observed that wherever possible, proliferating appellate and wide original jurisdiction should be controlled and curtailed without impairing the quality of justice. It was observed that the approach of the Law Commission is to reduce number of appeals, set up specialist courts/tribunals to reduce the inflow of work to the High courts. 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. No action appears to have been taken on the said recommendations. [Paras 28, 30] [1116-D, F-G]

2.3 Since one trial and one appeal are considered to be components of fair system of administration of justice in criminal cases of serious nature, adjudication at the original forum and at one appellate forum must be within reasonable time which should not normally exceed one to two years, as noted by the Law Commission and the Malimath Commission. At the same time, multiple layers of remedies need to be eliminated. Article 227 remedy, is meant primarily against perversity or patent error in a judgment. [Para 31] [1117-A-B]

2.4 From the data available it is clear that all the steps taken by the Central Government so far have not significantly improved the situation of speedy disposal of criminal appeals. The steps taken are set off by increased volume of work or otherwise. Therefore, Union of India ought to consider whether it is viable to have criminal appeals and other matters before the High Courts decided within reasonable time as per existing system. If not, whether it 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 issue of non-viability of providing routine statutory appeals to Constitutional Courts may also need to be considered. [Paras 32, 33] [1117-C-D]

2.5 In the light of 24 th and 272 nd Reports of the Law Commission of India, judgment of this Court in *Gujarat Urja case, the Minutes of the Arrears Committee of Supreme Court dated 8th April, 2017 and all other relevant considerations, the concerned authorities may examine whether there is need for any changes in the judicial structure by creating appropriate fora to decongest the Constitutional Courts so as to realistically achieve the constitutional goal of speedy justice. [Para 52] [1129-B-C] *Gujarat Urja Vikas Nigam Limited v. Esssar Power Limited (2016) 9 SCC 103 : [2016] 5 SCR 101 – relied on. P. Ramchandra Rao v. State of Karnataka (2002) 4 SCC 578; Imitiyaz Ahmad v. State of Uttar Pradesh and Ors. (2017) 3 SCC 658; Akhari Bi v. State of M.P. (2001) 4 SCC 355 : [2001] 2 SCR 626; Radhey Shyam v. Chhabi Nath (2015) 5 SCC 423 : [2015] 3 SCR 197; Sita Ram v. State of U.P. (1979) 2 SCC 656 – referred to.

3.1 Timely filling up of vacancies at all levels with the best available talent also need to be considered immediately. The 14th Law Commission in its Report in the year 1958 examined the issue of having best talent for subordinate judiciary. It suggested selection by all India level competition and constitution of All India Judicial Service. [Para 34] [1117-E-F]

3.2 Setting up of Central Selection Mechanism will go a long way in having timely appointments of best available talent. Steps in this regard may be taken by the concerned authorities without delay so that timely and quality appointments can be ensured. [Para 35] [1118-C-D]

3.3 Primacy in appointment of Constitutional Courts is of the Chief Justice of India. Even without affecting such primacy, improvement in working of Collegium is a felt necessity. 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. [Para 39] [1121-E-F; 1122-A]

3.4 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 case that there will be no Acting Chief Justice for more than one month, timely appointments of Chief Justices is not taking place. Appointment of a Chief Justice for few days for a High Court other than the place where the candidate is already working, serves no purpose of the system. The Central Government must take all steps to ensure such appointments as per prescribed timeline. Even if it may not be possible to make initial appointments to High Courts till suitable candidates are identified, appointment of Chief Justices may stand on different footing as selection is to be made, out of available candidates. To speedily identify such candidates, availability of data and involvement of persons who can spend time may be needed. The process may require thinking, planning and acting on a continuous basis. Primacy with the judiciary is necessary but for the job of such onerous nature, effective assistance is a must. Felt needs of time must be addressed. The system cannot remain static or unconcerned even when problems are patent. There appears to be dire need to strengthen the system of timely appointment of Judges, particularly Chief Justices. Identification of candidates, scrutiny, evaluation and post-appointment performance measurements and conduct are time consuming processes and at least some independent full time experts are required, if timely and best appointments are to be ensured and requisite in-house oversight is to be a reality. A full time body consistent with independence of judiciary appears to be immediate need for the system. Absence thereof contributes to denial of justice. The Central Government must also ensure that MOP in pursuance of order of this Court in NJAC case dated 16th December, 2015 brings about the improvements in working of the collegiums as stipulated. [Para 40] [1122-B-F; 1123-A]

3.5 In view of 14th Report of the Law Commission of India, judgment of this Court in ***All India Judges’ Association case, the Minutes of the Arrears Committee of this Court dated 8th April, 2017, and the experience on the subject, pending consideration of issue of All India Judicial Service, there is need to consider the proposal for central selection mechanism for filling up vacancies in courts other than the Constitutional Courts and also to consider as to how to supplement inadequacies in the present system of appointment of judges to the Constitutional Courts at all levels. [Para 52] [1129-D-E]

***All India Judges’ Association v. Union of India (1992) 1 SCC 119 : [1991] 2 Suppl. SCR 206; Malik Mazhar Sulta (3) and Anr. v. U.P. Public Service Common & Ors. (2008) 17 SCC 703; All India Judges’

Association v. UOI (2002) 4 SCC 247 : [2002] 2 SCR 712; **Supreme Court Advocates-on-Record Association vs. Union of India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; Special President Reference under Aticle 143

(1) Relating to Judges Transfer and Appointment (1998)

7 SCC 739 : [1998] 2 Suppl. SCR 400; Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1 – relied on.

Re: Sri Justice C.S. Karnan (2017) 7 SCC 1 – referred to.

4. There is also a need for mechanism to evaluate and compile performance of the judicial system as per observations in 245 th Report of the Law Commission so that there is nonmandatory 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. [Para 41] [1123-C-D]

Re: Sri Justice C.S. Karnan (2017) 7 SCC 1 – referred to.

5.1 The Bar has the tradition of placing their professional duty of assisting the access to justice above every other consideration. 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 and harassment. [Paras 42, 44] [1123-E-F; 1124-B]

5.2 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. [Para 50] [1128-D]

5.3 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. [Para 47] [1124-G; 1125-A]

5.4 With a view to enforce fundamental right of speedy access to justice under Articles 14 and 21 of the Constitution and law laid by this Court, it is necessary 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 may, having regard to the fact situation, hold that the office bearers of the Bar Association/Bar Council who passed the resolution for strike or abstaining from work, are liable to be restrained from appearing before any court for a specified period or until such time as they purge themselves of contempt to the satisfaction of the Chief Justice of the concerned High Court based on an appropriate undertaking/conditions. They may also be liable to be removed from the position of office bearers of the Bar Association forthwith until the Chief Justice of the concerned High Court so permits on an appropriate undertaking being filed by them. This may be in addition to any other action that may be taken for the said illegal acts of obstructing access to justice. The matter may also be considered by this Court on receipt of a report from the High Courts in this regard. This does not debar report/petition from any other source even before the end of a quarter, if situation so warrants. [Para 51] [1128-E-H; 1129-A]

Ex-Capt. Harish Uppal v. Union of India and Anr. (2003)

2 SCC 45 : [2002] 5 Suppl. SCR 186; Mahipal Singh Rana v. State of Uttar Pradesh (2016) 8 SCC 335 – relied on.

Kashmira Singh v. State of Punjab (1977) 4 SCC 291 : [1978] 1 SCR 385; State of Punjab v. Brijeshwar Singh (2016) 6 SCC 1 : [2016] 4 SCR 685 – referred to.