KRISHANAKANT TAMRAKAR versus THE STATE OF MADHYA PRADESH

[2018] 4 S.C.R.

AKRISHANAKANT TAMRAKAR

THE STATE OF MADHYA PRADESH

(Criminal Appeal No. 470 of 2018)

MARCH 28, 2018

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]

Constitution of India:

Arts. 14 and 21 – Access to speedy justice – Appellant-accusedC(sentenced to life imprisonment by trial court) was denied bail duringpendency of his appeal before High Court – Appeal to SupremeCourt on the ground that having been in custody for more than 10years, remedy of appeal would be meaningless if he were to remainin custody for full term of sentence – Held: Grant of bail denied –Access to speedy justice is part of fundamental right under Arts. 14Dand 21 – Direction issued as to remedy the problem of delay inhearing of criminal appeals – Administration of Justice – Bail.

Disposing of the appeal, the Court

HELD: 1. Access to speedy justice is part of fundamentalright under Articles 14 and 21 of the Constitution. The NationalECommission to Review Working of the Constitution recommendedthat access to speedy justice may be incorporated as an expressfundamental right. [Para 16] [1110-F]

Vineet Narayan v. Union of India (1996) 2 SCC 199 :[1996] 1 SCR 1053; Prakash Singh v. Union of IndiaF(2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473 – relied on.Imtiaz Ahmad v. State of U.P. (2012) 2 SCC 688 : [2012]

1 SCR 779; Anita Kushwaha v. Pushap Sudan (2016)8 SCC 509 : [2016] 9 SCR 560 – referred to.

2.1 The available figures show that long pendency of casesGparticularly of more than five years remains serious challenge.In High Courts, 16.29 lakhs cases were more than five yearsold. 7.43 lakh cases were more than 10 years old. Since currentdisposal itself was less than the institution of fresh cases, therewas no likelihood of old cases being decided in reasonable time.HThere could not be increase of strength of High Court Judges

beyond limit. The system could not be top heavy. Volume ofwork in the High Court was likely to further increase on accountof increased disposal of cases in subordinate courts with theincreased strength of judges, infrastructure and other steps beingtaken. Disposal of cases in subordinate courts is not enough, ifthe same are thereafter held up in the High Courts. New lawsare being enacted providing statutory remedies before the HighCourts. Moreover, oversight mechanism for judges of theConstitutional 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 counterproductive. If number of Constitutional Courts is to be increasedto match the volume of work being entrusted to such Courts, itmay have its implication unless it is possible to find sufficientnumber of suitable persons. The fact that there are large numberof vacancies in such Courts shows the difficulty in identifyingadequate number of suitable persons for Constitutional Courts.Nature of work before the Constitutional Courts particularlylaying down of law is time consuming. Such Courts cannot beoverburdened. [Para 23] [1113-C-E; 1114-A-B]

2.2 In 124[th] Report of the Law Commission of India (1988)titled “High Court Arrears – Fresh Look”, the Law Commissionobserved that wherever possible, proliferating appellate and wideoriginal jurisdiction should be controlled and curtailed withoutimpairing the quality of justice. It was observed that the approachof the Law Commission is to reduce number of appeals, set upspecialist courts/tribunals to reduce the inflow of work to theHigh courts. In 272[nd] report, the Law Commission observed thatthe forum for challenging the order of tribunal should be appellatetribunals, which decision should be final. No statutory appealshould be provided before the High Courts or Supreme Court inroutine manner. No action appears to have been taken on thesaid recommendations. [Paras 28, 30] [1116-D, F-G]2.3 Since one trial and one appeal are considered to becomponents of fair system of administration of justice in criminalcases of serious nature, adjudication at the original forum and atone appellate forum must be within reasonable time which shouldnot normally exceed one to two years, as noted by the Law

ACommission and the Malimath Commission. At the same time,multiple layers of remedies need to be eliminated. Article 227remedy, is meant primarily against perversity or patent error in ajudgment. [Para 31] [1117-A-B]

2.4 From the data available it is clear that all the steps takenBby the Central Government so far have not significantly improvedthe situation of speedy disposal of criminal appeals. The stepstaken are set off by increased volume of work or otherwise.Therefore, Union of India ought to consider whether it is viableto have criminal appeals and other matters before the High Courtsdecided within reasonable time as per existing system. If not,Cwhether it is possible to provide any other suitable forum forsuch appeals so as to ensure enforcement of fundamental right ofspeedy justice or how else the situation can be remedied. Theissue of non-viability of providing routine statutory appeals toConstitutional Courts may also need to be considered. [ParasD32, 33] [1117-C-D]

2.5 In the light of 24[th] and 272[nd] Reports of the LawCommission of India, judgment of this Court in *Gujarat Urjacase, the Minutes of the Arrears Committee of Supreme Courtdated 8[th] April, 2017 and all other relevant considerations, theEconcerned authorities may examine whether there is need forany changes in the judicial structure by creating appropriate fora todecongest the Constitutional Courts so as to realistically achievethe constitutional goal of speedy justice. [Para 52] [1129-B-C]

*Gujarat Urja Vikas Nigam Limited v. Esssar PowerFLimited (2016) 9 SCC 103 : [2016] 5 SCR 101 – relied on.

P. Ramchandra Rao v. State of Karnataka (2002) 4 SCC578; Imitiyaz Ahmad v. State of Uttar Pradesh and Ors.(2017) 3 SCC 658; Akhari Bi v. State of M.P. (2001) 4SCC 355 : [2001] 2 SCR 626; Radhey Shyam v. ChhabiGNath (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 bestavailable talent also need to be considered immediately. The 14[th]Law Commission in its Report in the year 1958 examined theissue of having best talent for subordinate judiciary. It suggestedH

KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYAPRADESH

selection by all India level competition and constitution of AllIndia Judicial Service. [Para 34] [1117-E-F]

3.2 Setting up of Central Selection Mechanism will go along way in having timely appointments of best available talent.Steps in this regard may be taken by the concerned authoritieswithout delay so that timely and quality appointments can beensured. [Para 35] [1118-C-D]

3.3 Primacy in appointment of Constitutional Courts is ofthe Chief Justice of India. Even without affecting such primacy,improvement in working of Collegium is felt necessity. FiveJudge Bench of this Court directed setting up of the Secretariatand also to incorporate other factors for improved and effectiveworking of the collegiums system. This apart, corrective measuresagainst post appointment conduct or inadequate performance orfailure to uphold righteous conduct need to be evolved. Theseaspects require urgent attention of concerned authorities. [Para39] [1121-E-F; 1122-A]3.4 If High Court remains without permanent ChiefJustice, process of speedy justice certainly suffers. In spite oftimeline in the MOP for appointments in pursuance of Judgementof this Court in **Supreme Court Advocates-on-Record Associationcase that there will be no Acting Chief Justice for more than onemonth, timely appointments of Chief Justices is not taking place.Appointment of Chief Justice for few days for High Courtother than the place where the candidate is already working,serves no purpose of the system. The Central Government musttake all steps to ensure such appointments as per prescribedtimeline. Even if it may not be possible to make initialappointments to High Courts till suitable candidates areidentified, appointment of Chief Justices may stand on differentfooting as selection is to be made, out of available candidates. Tospeedily identify such candidates, availability of data andinvolvement of persons who can spend time may be needed. Theprocess may require thinking, planning and acting on continuousbasis. Primacy with the judiciary is necessary but for the job ofsuch onerous nature, effective assistance is must. Felt needsof time must be addressed. The system cannot remain static orunconcerned even when problems are patent. There appears to

Abe dire need to strengthen the system of timely appointment ofJudges, particularly Chief Justices. Identification of candidates,scrutiny, evaluation and post-appointment performancemeasurements and conduct are time consuming processes andat least some independent full time experts are required, if timelyand best appointments are to be ensured and requisite in-houseBoversight is to be reality. full time body consistent withindependence of judiciary appears to be immediate need for thesystem. Absence thereof contributes to denial of justice. TheCentral Government must also ensure that MOP in pursuance oforder of this Court in NJAC case dated 16[th] December, 2015Cbrings about the improvements in working of the collegiums asstipulated. [Para 40] [1122-B-F; 1123-A]

3.5 In view of 14[th] 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 8[th]DApril, 2017, and the experience on the subject, pendingconsideration of issue of All India Judicial Service, there is needto consider the proposal for central selection mechanism for fillingup vacancies in courts other than the Constitutional Courts andalso to consider as to how to supplement inadequacies in thepresent system of appointment of judges to the ConstitutionalECourts 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; MalikMazhar Sulta (3) and Anr. v. U.P. Public Service Common& Ors. (2008) 17 SCC 703; All India Judges’FAssociation v. UOI (2002) 4 SCC 247 : [2002] 2 SCR712; **Supreme Court Advocates-on-Record Associationvs. 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)G7 SCC 739 : [1998] 2 Suppl. SCR 400; Supreme CourtAdvocates-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 need for mechanism to evaluate andHcompile performance of the judicial system as per observations

in 245[th] Report of the Law Commission so that there is non-mandatory timeline for decision of cases and accountabilityconsistent with the right of speedy justice. Such mechanism mayprovide norms for performance measurement for all judges inthe hierarchy. The same has to be done without affectingindependence of judiciary. There is also need for an in-housemechanism manned by experts but with safeguards consistentwith independence of judiciary for measures against erring Judgesother 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 professionalduty of assisting the access to justice above every otherconsideration. At some places there are frequent strikes,seriously obstructing access to justice. Even cases of personslanguishing in custody are delayed on that account. By everystrike, irreversible damage is suffered by the judicial system,particularly consumers of justice. They are denied access tojustice. Tax payers’ money is lost on account of judicial and publictime being lost. Nobody is accountable for such loss andharassment. [Paras 42, 44] [1123-E-F; 1124-B]

5.2 Since the strikes are in violation of law laid down bythis Court, the same amount to contempt and at least the officebearers of the associations who give call for the strikes cannotdisown their liability for contempt. Every resolution to go onstrike and abstain from work is per se contempt. Even ifproceedings are not initiated individually against such contemnorsby the court concerned or by the Bar Council concerned for themisconduct, it is necessary to provide for some mechanism toenforce the law laid down by this Court, pending legislation toremedy the situation. [Para 50] [1128-D]

5.3 The Law Commission in its 266[th] Report found that suchconduct of the advocates affects functioning of courts andparticularly it contributes to pendency of cases. It analyzed thedata on loss of working days on account of call of strikes. [Para47] [1124-G; 1125-A]

5.4 With view to enforce fundamental right of speedyaccess to justice under Articles 14 and 21 of the Constitution

Aand law laid by this Court, it is necessary to direct the Ministry ofLaw and Justice to present at least quarterly report on strikes/abstaining from work, loss caused and action proposed. Thematter can thereafter be considered in its contempt or inherentjurisdiction of this Court. The Court may, having regard to thefact situation, hold that the office bearers of the Bar Association/BBar Council who passed the resolution for strike or abstainingfrom work, are liable to be restrained from appearing before anycourt for specified period or until such time as they purgethemselves of contempt to the satisfaction of the Chief Justice ofthe concerned High Court based on an appropriate undertaking/Cconditions. They may also be liable to be removed from theposition of office bearers of the Bar Association forthwith untilthe Chief Justice of the concerned High Court so permits on anappropriate undertaking being filed by them. This may be inaddition to any other action that may be taken for the said illegal

acts of obstructing access to justice. The matter may also beDconsidered by this Court on receipt of report from the HighCourts in this regard. This does not debar report/petition fromany other source even before the end of quarter, if situation sowarrants. [Para 51] [1128-E-H; 1129-A]

Ex-Capt. Harish Uppal v. Union of India and Anr. (2003)E2 SCC 45 : [2002] 5 Suppl. SCR 186; Mahipal SinghRana 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 SinghF(2016) 6 SCC 1 : [2016] 4 SCR 685 – referred to.

KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYAPRADESH

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 470 of 2018.

From the Judgment and Order dated 03.05.2017 of the High Courtof M.P., Principal seat at Jabalpur in Criminal Appeal No. 1823 of 2009.

Gopal Subramanium, Sr. Adv. (AC), Talha Rahman, PavanBhushan, Hitesh Saini, Dr. Ajay Kumar, Tuhin Lavania, Mahendra Singh,Nandlal Kumar Mishra, Ram Kishor Singh Yadav, Ms. Sunita Yadav,Ms. Miranda, Kaushal Yadav, S. S. Shamshery, Ms. Hari Priya, M. K.Maroriya, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ADARSH KUMAR GOEL, J. 1. Leave granted. This appealhas been preferred against the order dated 3[rd] May, 2017 of the HighCourt of Madhya Pradesh in CRA No.1823 of 2009 whereby prayer forbail, pending disposal of criminal appeal against life sentence has beendeclined though the appellant has been in custody for more than tenyears.

2. The appellant stands convicted under Sections 148, 302/149IPC and sentenced to life imprisonment, apart from other sentences.According to the prosecution, on 23[rd] June, 2005 at 11.30 A.M., theappellant along with the co-accused caused the murder of one Shahid.In view of evidence in support of the charge, the trial Court convicted

Aand sentenced the appellant. The appellant applied for bail pendingconsideration of appeal before the High Court. After the said prayerwas rejected, another application was filed. The High Court rejected thesecond bail application with the observation that the evidence on recorddid not warrant grant of bail.

3. In this appeal, the order of the High Court is challenged mainlyon the ground that the appellant had been in custody for more than tenyears and the remedy of appeal will be meaningless if he has to remainin custody for the full term of sentence. Reliance has been placed onthe judgment of this Court in Kashmira Singh versus State of Punjab[1].

THE ISSUEC

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 incustody for more than ten years. He has neither been grantedDbail nor his appeal is heard. It is stated that there is nolikelihood of the appeal being heard before the High Courtin the near future.

While we are not inclined to grant bail, we issue noticeconfined to the question as to how the situation can beremedied ensuring that the appeal is heard within aEreasonable time at the appellate forum.

Issue notice. Notice be also issued to the Convenor, NationalMission for Justice Delivery and Legal Reforms i.e. theSecretary Justice – Union of India and also the AttorneyGeneral of India.

FShri Gopal Subramanium, learned senior counsel who ispresent in the Court is requested to assist the Court asamicus.”

5. Accordingly, we have heard learned Attorney General and thelearned amicus on the question as to how the problem of delay in hearingGof the appeals can be remedied.

SUBMISSIONS OF THE LEARNED AMICUS

6. Learned Amicus submitted that timely justice is essential forthe Rule of Law. Access to justice is fundamental right under theConstitution of India. It is also recognized under Article 10 of the UniversalH1 (1977) 4 SCC 291

Declaration of Human Rights as well as Articles 9 and 14 of theInternational Convention on Civil and Political Rights. There is, thus,dire need to find practical, effective and achievable system for speedydisposal of appeals. In its 245[th] Report in the year 2014, the LawCommission of India made analysis for method of computing adequatejudge-strength and recommended increase of number of judges on thatbasis. In Vineet Narayan versus Union of India[2], this Court held thatthe Government agencies must perform their legal obligations as permandate of Article 14 of the Constitution. In Prakash Singh versusUnion of India[3], this Court directed police reforms to be brought aboutfor scientific, speedy and quality investigation. The United States SpeedyTrial Act, 1974 provides timelines for steps in justice delivery. Timelineprovided in different statutes in India, such as filing of charge sheetsunder Section 167 Cr.P.C. is required to be implemented. Project ofNational Arrears Grid was required to be implemented. The Woolf Reportof 1996 emphasized generation of accurate judicial statistics on dailybasis. The Grid should help identify the steps for dispensation of justiceconcerning the poor and the underprivileged. Case Management practicesshould be implemented. In its report titled ‘Delaying Justice is DenyingJustice’ the Candian Standing Senate Committee on Legal andConstitutional Affairs stated “the lack of robust case and case flowmanagement is perhaps the most significant factor contributing to delays”.In England and Wales, pre-trial case management is rigorously followedin all criminal cases at both the trial and the appellate levels. Active casemanagement includes:

“(i) The early identification of the real issues;

(ii)Achieving certainty as to what must be done, by whom,and when, in particular by the early setting of timetablefor the progress of the case;

(iii) Monitoring the progress of the case and compliancewith directions;

(iv) Discouraging delay, dealing with as many aspects ofthe case as possible on the same occasion, and avoidingunnecessary hearings;

(v)Encouraging the participants to co-operate in theprogression of the case, and

(vi) Making use of technology.”

2 (1996) 2 SCC 199

3 (2006) 8 SCC 1

A7. Reference was also made to Case Management CriminalProcedure in England and Wales.

8. Learned Amicus further submitted that in appeals againstacquittal efforts should be made to weed out unmeritorious appeals.Competent Government advocates should be appointed by fair andBtransparent mechanism as laid down in State of Punjab versusBrijeshwar Singh[4].

9. Vacancies of the High Court Judges should be filled up wellbefore the date judge demits the office. Ad hoc judges should beappointed to deal with the pending appeals.

10. Wherever there is higher pendency of appeals, the same canbe transferred to the courts of concurrent jurisdiction of other States.Technology ought to be used to facilitate speedy conduct of trials anddisposal of appeals. Electronic copy of all papers should be served assoon as charge sheet is filed. The technology can be used for speedyDand summary disposal of certain cases such as the traffic offences.Evidence can be recorded by video conferencing, especially for Doctorsand investigating officers who may be on outstation job and engaged inofficial duties which suffer if they have to physically come to the court.There must be change in the work culture amongst the members of thebar as well as the police. Efforts should be made to avoid adjournments.ETime table should be laid down for hearing of appeals which should bestrictly adhered to.

SUBMISSIONS OF LEARNED ATTORNEY GENERAL

11. Learned Attorney General submitted that the Government hasadopted coordinated approach to assist the judiciary for liquidation ofFarrears and pendency by providing better infrastructure for courtsincluding computerization, increase in strength of judges, policy andlegislative measures in the areas prone to excessive litigation andemphasis on human resource development. ECourts Mission ModeProject has been introduced. Computerized courts have been increasedGto 16,089. Cost of Rs.1,670 crores has been approved for the purpose.Video Conferencing facility has been operationalised in 500 courts andprisons. Natinal Judicial Data Grid has information regarding 6.36 croresdecided and 2.5 crores pending cases. 5.24 crores orders/judgments areavailable. Steps have been taken to fill up vacancies in Supreme Court

H4 (2016) 6 SCC 1

and High Courts. Appointment of Judges and judicial officers in districtand subordinate courts is within the domain of the High Courts and theState Governments. total of Rs.5956 crores have been released underCentrally Sponsored Scheme (CSS) for Development of Infrastructurefacilities for the Judiciary. 17,576 Court Halls and 14,363 ResidentialAccommodations are available for the Judges/Judicial Officers of Districtand Subordinate Courts. In addition, 2,852 Court Halls and 1,622 housesare under construction. 14[th] Finance Commission has endorsed theproposal to strengthen the judicial system by establishing 1800 Fast TrackCourts (FTCs) for five years for specified offences at cost of 4,144crores. As per resolution of the Joint Conference of Chief Justices andChief Ministers, the Government has requested the State Governmentsto strengthen institutional mechanism between the State and the Judiciary.Steps have been taken for timely completion of infrastructure and eCourtsMission Mode project. There is need to implement Section 436A Cr.P.C.and ensure periodic monitoring of under-trial Review CommitteeMechanism. The Commercial Courts, Commercial Division andCommercial Appellate Division of High Court Act, 2015 has been notifiedto streamline the conduct of cases in Commercial Division andCommercial Courts. Amendments have been made in the Arbitrationand 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 casespending from more than five years. The Supreme Court has alsoconstituted Arrears Committee to formulate steps and reduce pendencyof cases in High Courts and district courts. National Legal ServicesAuthority provides mechanisms for access to justice for the poor. LokAdalats have been held resulting in disposal of number of cases on thebasis of compromise not requiring adjudication, apart from adjudicationin public utility Lok Adalats. The Government has approved scheme forengaging Nyaya Mitras to assist the litigants.

12. Learned Attorney General submitted that delay in disposal ofappeals can be tackled by appointing more judges and by bettercoordination and planning. It was also submitted that by proper scrutiny,application for leave to appeal or even appeals can be summarily disposedof which will reduce the burden of the courts.

13. We place on record our gratitude for the learned Amicus andlearned Attorney General for their valuable assistance rendered.

ACONSIDERATION OF THE ISSUE

14. Even though initially notice was issued to consider the issueof remedying the situation of delay in hearing of the criminal appealsbefore the High Courts, learned amicus and learned Attorney Generaladdressed the Court generally on the issue of speedy justice at all levels.BWe consider it appropriate to reflect on some important aspects of speedyjustice as these aspects are integral to the issue of delay in hearing ofcriminal appeals by the High Courts. First question which we take upfor consideration is whether, having regard to the nature of jurisdictionof the High Court and the present volume of the work, the expectationfor speedy disposal of criminal appeals is realistic or there is need for re-Cengineering of the judicial structure. Secondly, when speedy justice isdirectly linked to timely appointment of best talent, whether there is needto revisit the existing system of appointment of judges at all levels. Thirdly,what can be the mechanism to plan and oversee the best managementpractices, including employment of technology, for optimum performanceDand righteous conduct. Fourth, how uncalled for frequent strikes obstructsaccess to justice and what steps are required to remedy the situation.15. We are conscious that the above issues are primarily policymatters. The subject matter of restructuring of courts and administrationof justice is matter to be gone into by the executive and the legislature.EHowever, since the subject affects fundamental right of speedy justice,this Court cannot refuse to look into the problem repeatedly presented toit with view to draw attention of all concerned, leaving to the concernedauthorities to consider and act in the matter.

16. There can be no dispute that access to speedy justice is partFof fundamental right under Articles 14 and 21 of the Constitution. TheNational Commission to Review Working of the Constitutionrecommended that access to speedy justice may be incorporated as anexpress fundamental right[5].

17. The matter has been subject of consideration in severalGdecisions. In Imtiaz Ahmad versus State of U.P.[6]the issue taken upfor consideration was delay in disposal of criminal cases where staywas granted by the High Court. On consideration of report, the Courtnoted:

5 Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, para 31H6 (2012) 2 SCC 688

“(a) As high as 9% of the cases have completed more thantwenty years since the date of stay order.

(b) Roughly 21% of the cases have completed more than tenyears.

(c) Average pendency per case (counted from the date ofstay order till 26-7-2010) works out to be around 7.4 years.

(d) Charge-sheet was found to be the most prominent stagewhere the cases were stayed with almost 32% of the casesfalling under this category. The next two prominent stagesare found to be ‘appearance’ and ‘summons’, with eachcomprising 19% of the total number of cases. If‘appearance’ and ‘summons’ are consideredinterchangeable, then they would collectively account forthe maximum of stay orders.”

18. This Court directed the Law Commission to examine the matterwith view to set up additional courts to eliminate delays.

19. Accordingly, Law Commission examined the matter in its 245[th]Report given in July, 2014 and recommended review of cadre strength.The Commission noted that the system was unable to deliver timelyjustice because of huge backlog for which the judge strength wasinadequate. It noted that mandatory time frames were provided in somecountries. In P. Ramchandra Rao versus State of Karnataka[7], thisCourt was not in favour of mandatory time limit. Non binding directoryguidelines could be adopted. 14[th] Report of the Law Commissionsuggested time frame which was reiterated in subsequent LawCommission reports. The Malimath Committee recommended use oftwo year time frame as the norm by which delay and arrears in thesystem should be measured. Case specific time tables are adopted tomeet the object of individualized timely justice. The Commissionobserved that all cases pending for more than one year becategorized as backlogged. All cases backlogged in three yearsand current cases be decided within one year. The Commissionconsidered various methods for fixing the judge strength so as to meetcurrent institution of cases within the expected time frame as well asalso to clear the arrears within the targeted time. One of the problemsnoticed was huge vacancies and failure in timely filling up of vacancies.

ADelay and arrears was concern not only in the trial courts but throughoutthe judicial system. If the disposal in trial courts increased, the mattermay be held up in the higher courts. Adequate infrastructure and supportstaff was also of importance. Good Judicial management practices suchas timeliness and performance bench marks were also discussed. Itwas observed that the High Courts are already backlogged and not ableBto keep pace with new filings. It was observed that there was need toestablish non-mandatory timeframe for different types of cases. Unlessjudges and litigants have clear expectations, there will be littleaccountability for delays.20. Thereafter, the matter was considered in Imtiyaz AhmadCversus State of Uttar Pradesh and Ors.[8]. This Court gave directionsfor review of cadre strength in terms of principles laid down therein.However, the said judgment appears to have dealt with the issue offixing up of strength of judges for the subordinate judiciary andinfrastructure for the district judiciary[9].

DPossibility of decision of five year old cases pending in the HighCourts particularly the criminal appeals within the existing–system Need to consider decongestion of Constitutional Courts.

21. In Akhtari Bi versus State of M.P.[10], this Court requestedthe Chief Justices of the High Courts to take immediate effective stepsEfor disposal of criminal appeals pending for more than five years.22. The matter was considered by the Joint Conference of ChiefMinisters and the Chief Justices held in April, 2016 and it was resolved:

“8. DELAY AND ARREARS COMMITTEE:Fxxx xxx xxx

Resolved that

(i) all High Courts shall assign topmost priority for disposalof cases which are pending for more than five years;

G(ii) High Courts where arrears of cases pending for morethan five years are concentrated shall facilitate their disposalin mission mode;

8 (2017) 3 SCC 658

9 Para 43H10 (2001) 4 SCC 355

(iii) High Courts shall progressively thereafter set targetof disposing of cases pending for more than four years;

(iv) while prioritising the disposal of cases pending in theDistrict Courts for more than five years, additional incentivesfor the Judges of the District Judiciary be considered wherefeasible; and

(v) efforts be made for strengthening case-flow managementrules.”

23. The available figures[11] show that long pendency, particularlyof more than five years remains serious challenge. In High Courts,16.29 lakhs cases were more than five years old. 7.43 lakh cases weremore than 10 years old. Since current disposal itself was less than theinstitution of fresh cases, there was no likelihood of old cases beingdecided in reasonable time. There could not be increase of strength ofHigh Court Judges beyond limit. The system could not be top heavy.Volume of work in the High Court was likely to further increase onaccount of increased disposal of cases in subordinate courts with theincreased strength of judges, infrastructure and other steps being taken.Disposal of cases in subordinate courts is not enough if the same arethereafter held up in the High Courts. New laws are being enactedproviding statutory remedies before the High Courts. Moreover, oversightmechanism for judges of the Constitutional Courts is not the same as forother Judges[12]. While, there can be no doubt about need for suchprotection, appointment of large number of such judges can be counterproductive. If number of Constitutional Courts is to be increased to match

11 Please refer to Court News – October-December, 2016 in Supreme Court Website(www.supremecourtofindia.nic.in)or (http://supremecourtofindia.nic.in/pdf/CourtNews/COURT_NEWS_Vol_XI_Issue_No4_October_to_December_2016.pdf)12 (1997) 3 SCC 261 – para 78 “ … …The Judges of the superior courts have beenentrusted with the task of upholding the Constitution and to this end, have beenconferred the power to interpret it. It is they who have to ensure that the balance ofpower envisaged by the Constitution is maintained and that the legislature and theexecutive do not, in the discharge of their functions, transgress constitutional limitations.It is equally their duty to oversee that the judicial decisions rendered by those who manthe subordinate courts and tribunals do not fall foul of strict standards of legalcorrectness and judicial independence. The constitutional safeguards which ensurethe independence of the Judges of the superior judiciary, are not available to theJudges of the subordinate judiciary or to those who man tribunals created byordinary legislations. …”

Athe volume of work being entrusted to such Courts, it may have itsimplication unless it is possible to find sufficient number of suitablepersons. The fact that there are large number of vacancies in such Courtsshows the difficulty in identifying adequate number of suitable personsfor Constitutional Courts. Needless to say that nature of work beforethe Constitutional Courts particularly laying down of law is time consuming.BSuch Courts cannot be overburdened.

24. The Arrears Committee of this Court considered the issue offilling up of vacancies in subordinate courts and the issue of arrears. Itwas noted that while better monitoring, better management and othersteps such as the Central Selection may help speedy disposal inCsubordinate courts, the working of constitutional courts stands on differentfooting. There being mismatch in pendency and disposal, the Committeerecommended an interaction with the stakeholders to explore the issuesof judicial reforms including reengineering of structure of administrationof justice and the legislative changes necessary for the constitutionalDgoal of speedy justice[13]. Accordingly, meeting with the stakeholderswas held on 8[th] April, 2017. The issues considered were:

“i)Decongestion of Supreme Court and High Courts from civiland criminal appeals.

ii)Performance of Tribunals in contribution to decongestionEof cases in Supreme Court and High Courts.

iii)Central Selection Mechanism to fill up vacancies insubordinate courts.

iv)Video recording and conferencing in Courts & videoinvestigation by investigating authorities.F

v)Reforms in Legal Profession.

vi)Issue of granting Bail and under Trials.”

25. In the said meeting, it was noticed that in most of the HighCourts disposal was less than the institution. This called for reengineeringGof structure of administration of justice. One of the suggestions was thatstatutory remedies provided before the constitutional courts may be shiftedto alternative fora. It was suggested that Courts of Appeals may be setup higher to the District Courts but below the High Court. Such Courts

13 Minutes of the meeting of the Arrears Committee held on 23rd March, 2017H

of Appeals could comprise more than one member, partly drawn fromthe senior district judges and partly recruited directly from the Bar througha Central Selection Mechanism[14]. If above proposal is considered,pending appeals before the High Court could be transferred to suchBenches whose decisions will be final.

26. An enabling statute could be enacted whereby the State could,in consultation with the High Courts, transfer all or certain categories of

14 Relevant extract from the minutes of meeting of the Arrears Committee held on 8thApril, 2017:

“Reference to the available statistics shows that pendency of more than five year oldcases in the High Courts was more than 40% of the total pendency in the High Courtsand figures of five year old cases were on the increase. Criminal Appeals in most of theHigh Courts were pending for more than five years and there was no possibility of suchappeals being taken up for hearing to satiate the aspirations of the common litigant ofspeedy justice. In most of the High Courts disposal of Criminal Appeals was less thanthe institution. Delay in decision of criminal cases, particularly in category of seriouscases where granting bail was not safe, was not satisfactory situation. Unless therewas an alternative to ensure speedy disposal for criminal cases in the High Courts,search for structural alternative was the imperative need of the hour. There are otherareas of appellate jurisdiction in the High Court including second appeals, matrimonialmatters, accidental claim cases, land acquisition cases which also require prompt disposal,but the same get clogged at the High Court level because of the high pendency of thecases in the High Courts and time taken in decision of such appeals. The statistics showthat in most of the High Courts the disposal was less than the institution and as manyas 16.29 lakh cases were more than five years old. Figure of 10 year old cases is 7.43lakhs 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 bywhich the Supreme Court and the High Courts may discharge only core constitutionalfunctions while the statutory appeals or other statutory functions can be dealt with byan alternative mechanism by courts of appeal which, in hierarchy will be higher to thedistrict judges but below the High Court. Such cadre may comprise of members drawnpartly by selection from the Higher Judicial Service and partly from the Bar throughCentralised 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 withinthe jurisdiction of each High Court may be assessed. Pending appeals or at least certaincategories of appeals can be transferred to such Benches. Based on performance, integrityand suitability, members of the appellate benches may be considered for elevation tothe High Courts. Remedy to move the High Court under Articles 226/227 will remainintact. Apprehension was expressed by some of the participants that creating anotherAppellate Forum may not necessarily result in reducing the 4 docket load of the HighCourts and Supreme Court. Because, going by the present trend there is tendency ofevery litigation being carried to the higher Forum and at least till the High Court if notthe Supreme Court. However, the scope of interference in constitutional jurisdiction ofthe High Courts under Article 226/227 is circumscribed and not the same as decidingappeals on facts and law.”

Aappeals or other statutory proceedings from the High Courts to thealternative fora. Constitutional remedies will remain intact. It wasexplained that this would not be creating one extra forum resulting inlonger duration of litigation instead of speedy disposal. The constitutionalremedy under Article 227 was different from statutory appeal[15].

B27. Suggestions considered in the meeting also includerestructuring of the Tribunals, reforms in legal profession, online grievanceredressal mechanism against administrative decisions with specified timelimits at par with the Right to Information Act (RTI), summary proceduresfor civil and criminal disputes of certain categories[16]. The matter wasalso considered thereafter in the meeting of Arrears Committee of theCSupreme Court with the Arrears Committees of the High Courts[17].

28. In 124[th] Report of the Law Commission of India (1988) titled“High Court Arrears – Fresh Look”, the Law Commission observedthat wherever possible, proliferating appellate and wide original jurisdictionshould be controlled and curtailed without impairing the quality of justice.DIt was observed that the approach of the Law Commission is to reducenumber of appeals, set up specialist courts/tribunals to reduce the inflowof work to the High courts.

29. Desirability of amending provisions of direct appeal to thisCourt was also considered in Gujarat Urja Vikas Nigam LimitedEversus Essar Power Limited[18]. Therein, this Court considered theunique role of the highest court and observed that overburdening ofConstitutional Courts was undesirable for functioning of the Constitution.Heavy work of routine nature before Constitutional Courts affected theirassigned core role. Law Commission was asked to look into the matter.F30. In 272[[nd]]

30. In 272[[nd]] report, the Law Commission observed that the forumfor challenging the order of tribunal should be appellate tribunals, whichdecision should be final. No statutory appeal should be provided beforethe High Courts or Supreme Court in routine manner[19]. No action appearsto have been taken on the said recommendations.

G15 Radhey Shyam versus Chhabi Nath (2015) 5 SCC 423; Sita Ram versus State of U.P. (1979) 2 SCC 656

16 Minutes of the interaction of the Arrears Committee for Supreme Court & High Courts held on 8[th] April, 2017

17 Minutes of the interaction of the Arrears Committee for Supreme Court & High Courts held on 22[nd] April, 2017

18 (2016)9 SCC 103H19 8.23 of the Law Commission Report

31. Since one trial and one appeal are considered to be componentsof fair system of administration of justice in criminal cases of seriousnature[20], adjudication at the original forum and at one appellate forummust be within reasonable time which should not normally exceed one totwo years, as noted by the Law Commission and the MalimathCommission. At the same time, multiple layers of remedies need to beeliminated. Article 227 remedy, as earlier observed, is meant primarilyagainst perversity or patent error in judgment.

32. From the data available it is clear that all the steps taken bythe Central Government so far have not significantly improved thesituation of speedy disposal of criminal appeals. The steps taken are setoff by increased volume of work or otherwise.

33. Accordingly, we are of the view that the Union of India oughtto consider whether it is viable to have criminal appeals and other mattersbefore the High Courts decided within reasonable time as per existingsystem. If not, whether it is possible to provide any other suitable forumfor such appeals so as to ensure enforcement of fundamental right ofspeedy justice or how else the situation can be remedied. The issue ofnon-viability of providing routine statutory appeals to Constitutional Courtsas observed in Gujarat Urja (supra) may also need to be considered.

Filling up of vacancies at all levels with the best available talent

34. Apart from the above, the steps which need immediateconsideration include timely filling up of vacancies at all levels with thebest available talent. The 14[th] Law Commission in its Report in the year1958 examined the issue of having best talent for subordinate judiciary.It suggested selection by all India level competition and constitution ofAll India Judicial Service. In All India Judges’ Association versusUnion of India[21]this Court observed that the Union of India shouldtake steps in the matter as early as possible. This Court also directedvacancies at all levels be filled up in time bound manner[22]. The uniformmethod of recruitment was directed to be followed by amending theapplicable rules[23].

20 Dadu alias Tulsidas versus State of Maharashtra (2000) 8 SCC 437, para 17

21 (1992) 1 SCC 119 – para 12

22 (2008) 17 SCC 703 – Malik Mazhar Sultan (3) and Anr. Versus UP Public ServiceCommn & Ors – para 7

23 (2002) 4 SCC 247– All India Judges’ Association versus UOI, para 27

A35. Relying upon the minutes of the Arrears Committee of thisCourt dated 8[th] April, 2017 that central selection mechanism may beintroduced to timely fill up all the vacancies with the best available talent,the Department of Justice, Government of India vide letter dated 28[th]April, 2017, addressed to the Secretary General of this Court, stated thatthe idea of Central Selection Mechanism ought to be considered. TheBsaid letter was treated by the then Chief Justice of India as Suo MotuWrit (Civil)No. 1 of 2017 (In Re: Central Selection Mechanism forSubordinate Judiciary versus Union of India & Ors) and noticeswere issued. Learned amicus gave note on the Central SelectionMechanism which was circulated to all the States and the High CourtsCvide order dated 28[th] July, 2017[24]. The matter is, however, still pending.We refrain from expressing any view on the judicial order to be passed.Needless to say that setting up of Central Selection Mechanism will goa long way in having timely appointments of best available talent. Stepsin this regard may be taken by the concerned authorities[25] without delayso that timely and quality appointments can be ensured.D

36. Appointment to constitutional courts is governed by theCollegium system as laid down in judgments of this Court in SupremeCourt Advocates-on-Record Association versus Union of India[26]and Special President Reference under Article 143(1) Relating toJudges Transfer and Appointment[27]. Vide 99[th] Amendment to theEConstitution, the said system was sought to be replaced by the NationalJudicial Appointment Commission (NJAC). The said Amendment wasstruck down by this Court in Supreme Court Advocates-on-RecordAssociation versus Union of India[28]. However, it was observed that

24 “1. We are tentatively of the view, that the objections raised by few of the HighFCourts for centralization of the selection process of Subordinate Judges, have beensuitably dealt with in our order dated 10.7.2017. It however seems, that some confusionstill persists. This obviously is out of possible mis-communication. We therefore,consider it just and appropriate to request Mr. Arvind P. Datar, learned Amicus Curiae,to prepare ‘Concept Note’, highlighting the various aspects of our order dated 10.7.2017and indicating how the objections raised stand satisfied. The ‘Concept Note’ shall beGplaced on the record of this case, and circulated amongst learned counsel representingthe States or the High Courts, before the next date of hearing. 2. List again on 4.8.2017, at 3.00 p.m”25 See Entry 11A, List III, Seventh Schedule to the Constitution26 (1993) 4 SCC 441, para 478(13), paras 480, 48627 (1998) 7 SCC 739, para 4428 (2016) 5 SCC 1 – para 1255H

the functioning of Collegium System needed to be improved[29]Accordingly, while upholding the Amendment, the Court vide order dated16[th] October, 2015 directed:

29 (2016) 5 SCC 1 – Chelameswar, J – Para 1236; Lokur, J – para 969; Kurian, J. – para990; Goel, J. – para 1111 :

1236.….The abovementioned two are not the only cases where the system failed.It is matter of public record that in the last 20 years, after the advent of the CollegiumSystem, number of recommendations made by the Collegia of the High Courts cameto be rejected by the Collegium of the Supreme Court. There are also cases where theCollegium of this Court quickly retraced its steps having rejected the recommendationsof particular name made by the High Court Collegium giving scope for great deal ofspeculation as to the factors which must have weighed with the Collegium to make sucha quick volte face. Such decisions may be justified in some cases and may not in othercases. There is no accountability in this regard. The records are absolutely beyond thereach of any person including the Judges of this Court who are not lucky enough tobecome the Chief Justice of India. Such state of affairs does not either enhance thecredibility of the institution or good for the people of this country.

969. The result of this declaration is that the “Collegium System” postulated by theSecond 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 ofJudges as laid down in these decisions read with the (Revised) Memorandum ofProcedure definitely needs fine tuning. We had requested the learned counsel, on theclose of submissions, to give suggestions on the basis that the petitions are dismissedand on the basis that the petitions are allowed. Unfortunately, we received no response,or at best lukewarm response.

990. All told, all was and is not well. To that extent, I agree with Chelameswar, J. thatthe present Collegium System lacks transparency, accountability and objectivity. Thetrust deficit has affected the credibility of the Collegium System, as sometimes observedby the civic society. Quite often, very serious allegations and many time not unfoundedtoo, have been raised that its approach has been highly subjective. Deserving personshave been ignored wholly for subjective reasons, social and other national realities wereoverlooked, certain appointments were purposely delayed so as either to benefit vestedchoices or to deny such benefits to the less patronised, selection of patronised orfavoured persons were made in blatant violation of the guidelines resulting in unmerited,if not, bad appointments, the dictatorial attitude of the Collegium seriously affectingthe self-respect and dignity, if not, independence of Judges, the court, particularly theSupreme Court, often being styled as the Court of the Collegium, the looking forwardsyndrome affecting impartial assessment, etc., have been some of the other allegationsin the air for quite some time. These allegations certainly call for deep introspectionas to whether the institutional trusteeship has kept up the expectations of the Framersof the Constitution. Though one would not like to go into detailed analysis of thereasons, I feel that it is not the trusteeship that failed, but the frailties of the trusteesand the collaborators which failed the system. To me, it is curable situation yet.1111. Since the system existing prior to the amendment will stand revived on the 99thAmendment being struck down and grievances have been expressed about its functioning,I am of the view that such grievances ought to be considered. It is made clear that

1120SUPREME COURT REPORTS

A“5. To consider introduction of appropriate measures, if any,for an improved working of the “Collegium System”, list on3-11-2015".

37. After due consideration of various suggestions, this aspect ofthe matter was dealt with vide order dated 16[th] December, 2015 asBfollows:

“1255. In view of the above, the Government of India mayfinalise the existing Memorandum of Procedure bysupplementing it in consultation with the Chief Justice ofIndia. The Chief Justice of India will take decision basedCon the unanimous view of the Collegium comprising the fourseniormost puisne Judges of the Supreme Court. They shalltake the following factors into consideration:

1256.1. Eligibility criteria: The Memorandum of Proceduremay indicate the eligibility criteria, such as the minimum age,Dfor the guidance of the Collegium (both at the level of theHigh Court and the Supreme Court) for the appointment ofJudges, after inviting and taking into consideration the viewsof the State Government and the Government of India (asthe case may be) from time to time.

E1256.2.Transparency in the appointment process: Theeligibility criteria and the procedure as detailed in theMemorandum of Procedure for the appointment of Judgesought to be made available on the website of the Courtconcerned and on the website of the Department of Justiceof the Government of India. The Memorandum of ProcedureFmay provide for an appropriate procedure for minuting thediscussion including recording the dissenting opinion of theJudges in the Collegium while making provision for theconfidentiality of the minutes consistent with the requirementof transparency in the system of appointment of Judges.G1256.3. Secretariat: In the interest of better management ofthe system of appointment of Judges, the Memorandum of

grievances have not been expressed by the petitioners about the existence of the pre-existing system of appointment but about its functioning in practice. It has been arguedthat this Court can go into this aspect without revisiting the earlier decisions of thelarger Benches. I am of the view that such grievances ought to be gone into for which theHmatter needs to be listed for hearing.

Procedure may provide for the establishment of Secretariatfor each High Court and the Supreme Court and prescribeits functions, duties and responsibilities.

1256.4. Complaints: The Memorandum of Procedure mayprovide for an appropriate mechanism and procedure fordealing with complaints against anyone who is beingconsidered for appointment as Judge.

1256.5. Miscellaneous: The Memorandum of Proceduremay provide for any other matter considered appropriatefor ensuring transparency and accountability includinginteraction with the recommendee(s) by the Collegium of theSupreme Court, without sacrificing the confidentiality of theappointment process.”

38. Improvement contemplated in the above judgment does notseem to have seen the light of the day. In Re: Sri Justice C.S. Karnan[30]observations have been made as to the need to revisit the process ofappointments and to set up mechanism for corrective measures otherthan impeachment against conduct of an erring Judge.

39. We make it clear that we are in no manner deviating from thelaw laid down by this Court that primacy in appointment of ConstitutionalCourts is to be of the Chief Justice of India. At the same time, evenwithout affecting such primacy improvement in working of Collegium isa felt necessity as held above. Five Judge Bench of this Court directedsetting up of the Secretariat and also to incorporate other factors forimproved and effective working of the collegiums system. This apart,corrective measures against post appointment conduct or inadequate

30 (2017) 7 SCC 1 – paras 77-78:

“77. This case, in our opinion, has importance extending beyond the immediate problem.This case highlights two things:

(1) the need to revisit the process of selection and appointment of Judges to theconstitutional courts, for that matter any member of the judiciary at all levels; and

(2) the need to set up appropriate legal regime to deal with situations where theconduct of Judge of constitutional court requires corrective measures—other thanimpeachment—to be taken.

78. …. What appropriate mechanism would be suitable for assessing the personality ofthe candidate who is being considered for appointment to be member of constitutionalcourt is matter which is to be identified after an appropriate debate by all concerned—the Bar, the Bench, the State and civil society. But the need appears to beunquestionable.”

Aperformance 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 High Court remains withouta permanent Chief Justice, process of speedy justice certainly suffers.In spite of timeline in the MOP for appointments in pursuance ofBJudgement of this Court in Supreme Court Advocates-on-RecordAssociation and Ors. versus Union of India[31]that there will be noActing Chief Justice for more than one month[32], timely appointments ofChief Justices is not taking place. Appointment of Chief Justice forfew days for High Court other than the place where the candidate isalready working serves no purpose of the system. The CentralCGovernment must take all steps to ensure such appointments as perprescribed timeline. Even if it may not be possible to make initialappointments to High Courts till suitable candidates are identified,appointment of Chief Justices may stand on different footing as selectionis to be made out of available candidates. To speedily identify suchDcandidates, availability of data and involvement of persons who can spendtime may be needed. The process may require thinking, planning andacting on continuous basis. Primacy with the judiciary is necessary butfor the job of such onerous nature, effective assistance is must. Feltneeds of time must be addressed. The system cannot remain static orunconcerned even when problems are patent. As already noted thereEappears to be dire need to strengthen the system of timely appointmentof Judges, particularly Chief Justices. Identification of candidates,scrutiny, evaluation and post appointment performance measurementsand conduct are time consuming processes and at least some independentfull time experts are required, if timely and best appointments are to beFensured and requisite in-house oversight is to be reality. full time

31 (1993)4 SCC 441, para 478

32 Para 5 of the ‘Memorandum showing the Procedure for Appointment and Transferof Chief Justices and Judges of High Courts’ (MOP).

“5. Initiation of the proposal for the appointment of Chief Justice of aHigh Court would be by the Chief Justice of India. The process ofappointment must be initiated well in time to ensure the completion at leastone month prior to the date of anticipated vacancy for the Chief Justice ofthe High Court. The Chief Justice of India would ensure that when ChiefJustice is transferred from one High Court to another simultaneousappointment of his successor in his office should be made and ordinarilythe arrangement of appointment of an acting Chief Justice shouldnot be made for more than one month.”

body consistent with independence of judiciary appears to be immediateneed for the system. Absence thereof contributes to denial of justice.The Central Government must also ensure that MOP in pursuance oforder of this Court in NJAC case dated 16[th] December, 2015 bringsabout the improvements in working of the collegiums as stipulated.

Accountability in terms of Performance Measurement andRighteous of Conduct at all levels of judicial hierarchy includingConstitutional Courts

41. There is also need for mechanism to evaluate and compileperformance of the judicial system as per observations in 245[th] Reportof the Law Commission so that there is non-mandatory timeline fordecision of cases and accountability consistent with the right of speedyjustice. Such mechanism may provide norms for performancemeasurement for all judges in the hierarchy. The same has to be donewithout affecting independence of judiciary. There is also need for anin-house mechanism manned by experts but with safeguards consistentwith independence of judiciary for measures against erring Judges otherthan 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 speedyjustice. It is well known that at some places there are frequent strikes,seriously obstructing access to justice. Even cases of persons languishingin custody are delayed on that account. By every strike, irreversibledamage is suffered by the judicial system, particularly consumers ofjustice. They are denied access to justice. Tax payers’ money is lost onaccount of judicial and public time being lost. Nobody is accountable forsuch loss and harassment.

43. Dr. Ambedkar in his famous speech on 25[th] November, 1949had warned :

“The first thing in my judgement we must do is to hold fast toconstitutional methods of achieving our social and economicobjectives. It means we must abandon the bloody methodsof revolution. It means that we must abandon the method ofcivil disobedience, non-cooperation and satyagraha. Whenthere was no way left for constitutional methods for achievingeconomic and social objectives, there was great deal ofjustification for unconstitutional methods. But where

Aconstitutional methods are open, there can be no justificationfor these unconstitutional methods. These methods arenothing but the Grammar of Anarchy and the sooner theyare abandoned, the better for us.”

44. The above warning of the Constitution maker needs to beBadhered to at least by the legal fraternity. The Bar has the tradition ofplacing their professional duty of assisting the access to justice aboveevery other consideration. How is the situation to be tackled. Competentauthorities may take final call.

45. In Ex-Capt. Harish Uppal versus Union of India andCAnr.[33], this Court held that lawyers have no right to go on strike or togive call for boycott of courts nor can they abstain from the Courts.Calls given by Bar Association or Bar Council for such purpose cannotrequire the court to adjourn the matters. Strike or abstaining from courtis unprofessional. Even though more than 15 years have passed afterthe said judgment was rendered, the judgment of this Court is repeatedlyDflouted and no remedial measures have been adopted. Regulation ofright of appearance in courts is within the jurisdiction of the courts. ThisCourt also asked the Law Commission to suggest appropriate changesin the regulatory framework for the legal profession[34]. The LawCommission has submitted 266[th] Report. The problem continues seriouslyEaffecting the rule of law.46. In Mahipal Singh Rana (supra), this court noted that theHigh Courts can frame rules to lay down conditions on which Advocatescan be permitted to practise in Courts. An Advocate can be debarredfrom appearing in Court even if the disciplinary jurisdiction for misconductFis vested with the Bar Councils[35]. This Court requested the LawCommission to look into all relevant aspects relating to regulation oflegal profession[36].

47. The Law Commission, accordingly, examined the relevantaspects relating to regulation of the legal profession. The Law CommissionGin its 266[th] Report found that such conduct of the advocates affectsfunctioning of courts and particularly it contributes to pendency of cases.

33 (2003) 2 SCC 45

34 (2016)8 SCC 335 - Mahipal Singh Rana versus State of Uttar Pradesh

35 Paras 20, 30 to 35

36 Para 58H

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 bythe High Court for the years 2012-2016 shows that inDehradun District, the Advocates were on strike for 455 daysduring 2012-2016 (on an average, 91 days per year). InHaridwar District, 515 days (103 days year) were wastedon account of strike.

7.3 In the case of the State of Rajasthan, the High Court ofJudicature at Jodhpur saw 142 days of strike during 2012-2016, while the figure stood at 30 for the Jaipur Bench. InAjmer District courts, strikes remained for 118 days in theyear 2014 alone, while in Jhalawar, 146 days were lost in2012 on account of strike.

7.4 The case of Uttar Pradesh appears to be the worst. Thefigures of strike for the years 2011-2016 in the subordinatecourts are alarmingly high. In the State of Uttar Pradesh,the District courts have to work for 265 days in year. Theperiod of strike in five years period in worst affected districtshas been as - Muzaffarnagar (791 days), Faizabad (689days), Sultanpur (594 days), Varanasi (547 days), Chandauli(529 days), Ambedkar Nagar (511 days), Saharanpur (506days) and Jaunpur (510 days). The average number of daysof strike in eight worst affected districts comes to 115 daysa year. Thus, it is evident that the courts referred tohereinabove could work on an average for 150 days onlyin year.

7.5 In this regard, the situation in subordinate courts in TamilNadu had by no means, been better. The High Court of TamilNadu has reported that there are 220 working days in ayear for the courts in the State. During the period 2011-2016, districts like Kancheepuram, 687 days (137.4 daysper year); Kanyakumari, 585 days (117 days per year);Madurai, 577 days (115.4 days per year); Cuddalore, 461days (92.2 days per year); and Sivagangai, 408 days (81.6days per year), were the most affected by strike called byadvocates.

7.6 As per the responses received from the High Courts ofMadhya Pradesh and Odisha, the picture does not emergeto be satisfactory.

7.7 The Commission noted that the strike by advocates ortheir abstinence from the court were hardly for any justifiableBreasons. It could not find any convincing reasons for whichthe advocates resorted to strike or boycott of work in thecourts. The reasons for strike call or abstinence from workvaried from local, national to international issues, havingno relevance to the working of the courts. To mention few,bomb blast in Pakistan school, amendments to Sri Lanka’sCConstitution, interstate river water disputes, attack on /murder of advocate, earthquake in Nepal, to condole thedeath of their near relatives, to show solidarity to advocatesof other State Bar Associations, moral support to movementsby social activists, heavy rains, or on some religiousDoccasions such as shraadh, Agrasen Jayanti, etc. or evenfor kavi sammelan.

7.8 The Commission is of the view that unless there arecompelling circumstances and the approval for symbolicstrike of one day is obtained from the Bar Council concerned,the advocates shall not resort to strike or abstention fromthe court work.”

48. Thereafter, the Law Commission referred to observations inthe judgment of this Court in Ex-Capt. Harish Uppal case (supra) thatthere should be no strikes by the Bar except in rarest of rare situationswhich should also not exceed one day. The Bar Councils were calledupon to take appropriate action in the matter. The Law Commissionnoted that the strikes were continuing and causing great obstruction tothe access to justice. It was observed :

“8.3 In spite of all these, the strikes have continuedunabated. The dispensation of justice must not stop for anyreason. The strike by lawyers have lowered the image of thecourts in the eyes of the general public. The Supreme Courthas held that right to speedy justice is included in article 21of the Constitution. In Hussainara Khatoon v. Home Secy.,State of Bihar; and in some other cases, it was held that thelitigant has right to speedy justice. The lawyers’ strike,

however, result in denial of these rights to the citizens in theState.

8.4 Recently, the Supreme Court while disposing off theCriminal Appeal of Hussain & Anr. v. Union of India (2017)5 SCC 702 deprecated the practice of boycotting the Courtobserving that:

“One other aspect pointed out is the obstruction of Courtproceedings by uncalled for strikes/abstaining of work bylawyers or frequent suspension of court work aftercondolence references. In view of judgment of this Courtin Ex. Captain Harish Uppal versus Union of India, suchsuspension of work or strikes are clearly illegal and it ishigh time that the legal fraternity realizes its duty to thesociety which is the foremost. Condolence references canbe once in while periodically say once in two/three monthsand not frequently. Hardship faced by witnesses if theirevidence is not recorded on the day they are summoned orimpact of delay on under trials in custody on account ofsuch avoidable interruptions of court proceedings is amatter of concern for any responsible body ofprofessionals and they must take appropriate steps. In anycase, this needs attention of all concerned authorities –the Central Government/State Governments/Bar Councils/Bar Associations as well as the High Courts and ways andmeans ought to be found out to tackle this menace.Consistent with the above judgment, the High Courts mustmonitor this aspect strictly and take stringent measures asmay be required in the interests of administration of justice.”

8.5 In Ramon Services Pvt. Ltd. v. Subhash Kapoor (2001)1SCC 118, the apex Court observed that if any advocate claimsthat his right to strike must be without any loss to him, butthe loss must only be borne by his innocent client, such aclaim is repugnant to any principle of fair play and canonsof ethics. Therefore, when he opts to strike or boycott theCourt he must as well be prepared to bear at least thepecuniary loss suffered by the litigant client who entrustedhis brief to that advocate with all confidence that his causewould be safe in the hands of that advocate.”

A49. Examining other aspects of the regulation of legal profession,the Law Commission recommended review of regulatory mechanism ofthe Advocates Act as follows:

“17.1 There is dire necessity of reviewing the regulatorymechanism of the Advocates Act, not only in matters ofBdiscipline and misconduct of the advocates, but in other areasas well, keeping in view the wide expanse of the legalprofession being involved in almost all areas of life. Thevery constitution of the Bar Councils and their functionsalso require the introduction of few provisions in order toconsolidate the function of the bar councils in its internalCmatters 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 theassociations who give call for the strikes cannot disown their liability forcontempt. Every resolution to go on strike and abstain from work is perDse contempt. Even if proceedings are not initiated individually againstsuch contemnors by the court concerned or by the Bar Council concernedfor the misconduct, it is necessary to provide for some mechanism toenforce the law laid down by this Court, pending legislation to remedythe situation.

51. Accordingly, we consider it necessary, with view to enforcefundamental right of speedy access to justice under Articles 14 and 21and law laid by this Court, to direct the Ministry of Law and Justice topresent at least quarterly report on strikes/abstaining from work, losscaused and action proposed. The matter can thereafter be considered inFits contempt or inherent jurisdiction of this Court. The Court may, havingregard to the fact situation, hold that the office bearers of the BarAssociation/Bar Council who passed the resolution for strike or abstainingfrom work, are liable to be restrained from appearing before any courtfor specified period or until such time as they purge themselves ofcontempt to the satisfaction of the Chief Justice of the concerned HighGCourt based on an appropriate undertaking/conditions. They may alsobe liable to be removed from the position of office bearers of the BarAssociation forthwith until the Chief Justice of the concerned High Courtso permits on an appropriate undertaking being filed by them. This maybe in addition to any other action that may be taken for the said illegalHacts of obstructing access to justice. The matter may also be considered

by this Court on receipt of report from the High Courts in this regard.This does not debar report/petition from any other source even beforethe end of quarter, if situation so warrants.

52. We may now sum up our conclusions :

(i) In the light of 124[th] and 272[nd] Reports of the Law Commissionof India, judgment of this Court in Gujarat Urja (supra), theMinutes of the Arrears Committee of Supreme Court dated 8[th]April, 2017 and all other relevant considerations, the concernedauthorities may examine whether there is need for any changesin the judicial structure by creating appropriate fora to decongestthe Constitutional Courts so as to realistically achieve theconstitutional goal of speedy justice.

(ii) In view of 14[th] Report of the Law Commission of India,judgment of this Court in All India Judges’ Association versusUnion of India[37], the Minutes of the Arrears Committee of thisCourt dated 8[th] April, 2017, and the experience on the subject,pending consideration of issue of All India Judicial Service, thereis need to consider the proposal for central selection mechanismfor filling up vacancies in courts other than the ConstitutionalCourts and also to consider as to how to supplement inadequaciesin the present system of appointment of judges to theConstitutional Courts at all levels.(iii) There is need to consider in the light of observationshereinabove and all other relevant considerations whether thereshould be body of full time experts without affectingindependence of judiciary, to assist in identifying, scrutinizing andevaluating candidates at pre-appointment stage and to evaluateperformance post appointment. The Government may alsoconsider what changes are required in the process of evaluationof candidates at its level so that no wrong candidate is appointed.What steps are required for ensuring righteous conduct of Judgesat later stage is also an issue for consideration.

(iv) Pending legislative measures to check the malady of frequentuncalled for strikes obstructing access to justice, the Ministry ofLaw and Justice may compile information and present quarterlyreport on strikes/abstaining from work, loss caused and action

37 (1992) 1 SCC 119

Aproposed. The matter can thereafter be considered in thecontempt or inherent jurisdiction of this Court. The Court maydirect having regard to fact situation, that the office bearers ofthe Bar Association/Bar Council who passed the resolution forstrikes or abstaining from work or took other steps in that directionare liable to be restrained from appearing before any court for aBspecified period or till they purge themselves of contempt to thesatisfaction of the Chief Justice of the concerned High Courtbased on an appropriate undertaking/conditions. They may alsobe liable to be removed from the position of office bearers of theBar Association forthwith until the Chief Justice of the concernedCHigh Court so permits on an appropriate undertaking being filedby them. This may be in addition to any other action that may betaken for the said illegal acts of obstructing access to justice.The matter may also be considered by this Court on receipt of areport from the High Courts in this regard. This does not debarreport/petition from any other source even before the end of aDquarter, if situation so warrants.

53. Accordingly, we dispose of this appeal in above terms. Wedirect the Union of India to file an affidavit in the light of the aboveobservations within three months. First report in terms of para 52(iv)may be filed by June 30, 2018. The matter may be listed for considerationEof the above affidavit on Wednesday, the 4[th] July, 2018 before theappropriate Bench.

Kalpana K. Tripathy Appeal disposed of.