TaxTMI 
TaxTMI 
2017 (1) TMI 1504
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....ya Pratap Singh, Mahaling Pandarge, Nishant Katneshwarkar, Ravindra Chingale, Kshatrshal Raj, K. Enatoli Sema, Amit Kumar Singh, K. Luikang Michael, Elix Gangmei, Hematika Wahi, Puja Singh, Aagam Kaur, C.K. Sasi, Manikrushnan, Ashok K. Srivastava, Aniruddha P. Mayee, A. Selvin Raja, Charudatta Mahendrakar, Sunil Fernandes, Puneeth K.G., Advs. for Parekh & Co., Abhishek Chaudhary, Anitha Shenoy, Kamal Mohan Gupta, T.V. Ratnam and T.G. Narayanan Nair, Advs. JUDGMENT Dr. D.Y. Chandrachud, J. 1. These Appeals arise from a batch of interlocutory orders of the Allahabad High Court in a criminal writ petition (1786 of 2003). On 9 April 2003 a learned Single Judge of the High Court admitted a writ petition filed by the second and third Respondents and stayed an order dated 7 December 2002 of the Additional Chief Judicial Magistrate, Gautam Budh Nagar, directing the registration of a case against them. The case was adjourned before the High Court on several dates on which it was listed. As a result of the adjournments, on the date of the institution of the Special Leave Petitions, the writ petition was pending in the High Court for six years. 2. This Court was concerned with the....
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....ay and arrears in trial courts", November, 1978 (Ministry of Law and Justice, Government of India); 78th Report of the Law Commission of India on "Congestion of under trial prisoners in jails", February, 1979 (Ministry of Law and Justice, Government of India); 79th Report of the Law Commission of India on "Delay and Arrears in High Courts and other Appellate Courts", May, 1979 (Ministry of Law and Justice, Government of India); 121st Report of the Law Commission of India (method of review of judge strength at regular intervals), 1987; 124th Report of the Law Commission of India - The High Court Arrears - A fresh look, 1988; Report of The Arrears Committee (Three Chief Justices Committee: Kerala, Calcutta & Madras), 1989-90. 5. The 120th Report of the Law Commission on Manpower Planning in the Judiciary (1987) suggested a formula for the fixation of judge strength, adopting a demographic approach. The Report suggested that demographics should be the basis for fixation of judge strength. Its rationale was set out thus: As to the possible accusation that the working out of the ratio of Judges strength per million of Indian population is a gross measure, the Commission wish....
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....pported the application of the demographic norm as the starting point for determination of judge strength. In a letter dated 2 April 2013, the then Prime Minister of India also accepted the recommendation of the Chief Justice of India to double the existing number of courts. When this issue was taken up at the Joint Conference of Chief Ministers and Chief Justices in 2013 it was resolved to create new posts of judicial officers with requisite staff and infrastructure. 8. In order to address the issue of arrears, a policy decision was taken by the Union government to constitute fast track courts and funds were allocated under the Eleventh Finance Commission for a period of five years (2000-05). When the issue of the discontinuation of fast-track courts came up, this Court in Brij Mohan Lal v. Union of India (2012) 6 SCC 502 held that the policies of the State should not derogate from undermining judicial independence and if a policy was counter-productive or liable to increase the case load, the court intervene judicially. Though this Court desisted from interfering with the policy decision in regard to discontinuing fast track courts, keeping in mind the huge pendency of cases, ....
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....Managers in High Courts and Sub-ordinate Courts. II. Vision Statement and Action Plan adopted by the National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays. III. Preparation of National Arrears Grid. IV. National Mission for Justice Delivery and Legal Reforms. V. National and State Legal Service Authorities constituted under Legal Service Authorities Act, 1987. VI. National Court Management System (as proposed by the Chief Justice of India). The terms of reference of the 19th Law Commission (adverted to by the Union government in its affidavit dated 18 January 2012) were broad enough to include consideration of the steps necessary for tackling judicial arrears. Clause (h) of the terms of reference was: H. To consider and to convey to the Government its views on any subject relating to law and judicial administration that may be referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs). Hence, the Union Government urged that the Law Commission could be requested to address on the basis of a scientific study, the issue of setting up additional court....
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....s to ensure that new backlog is not created. Under this method, two concerns are addressed: (a) There is a large existing backlog of cases and (b) New cases are being instituted daily which are adding to the backlog.. In order to address both these concerns, we use the Rate of Disposal Method to provide for two sets of judges: (a) Number of judges required to dispose of the existing backlog and (b) Number of judges required for ensuring that new filings are disposed of in a manner such that further backlog is not created. Under the Rate of Disposal Method, the Commission first looked at the current rate at which judges dispose of cases. Next we determined how many additional judges working at a similar level of efficiency would be required so that the number of disposals equals the number of institutions in any one year time frame. As long as the institution and disposal levels remain as they currently are, the Courts would need these many additional judges to keep pace with new findings in order to ensure that newly instituted cased do not add to the backlog. Second, working with the current rate of disposal of cases per judge, we also looked at how many....
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....f Judges The formula for determining the Number of Judges for disposing of Backlog required to dispose of pending cases within a given time period is: Where, AJBk= No. of Judges for disposing of Backlog B= Backlog, defined as the number of cases pending for more than a year. t= The time frame, in number of years, within which the backlog needs to be cleared. 12. The Law Commission has noted that in the past, it was suggested that judges required to dispose of the backlog are needed only until the backlog is cleared. Hence, it was proposed that short-term, ad-hoc appointments should be made from amongst retired judges for clearing the backlog. However, the previous experience of the functioning of ad hoc appointments in the district judiciary reflected serious concern especially of the lack of accountability in their functioning and performance. Moreover, additional infrastructure would be required to be created even for ad-hoc judges appointed in the system. The proposal to have a shift system has been resisted by the Bar since it results in an increase in the working hours. 13. The note submitted by Professor Dr G Mohan Gopal rais....
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.... of a criminal case; and (iv) trial date certainty - the proportion of important case processing provisions that are held according to the Schedule finalized. Professor Dr G Mohan Gopal suggests that the rate of disposal method does not make a substantial departure from past approaches that have not yielded desired results. 15. The Chairperson of NCMSC has proposed an interim approach which augments the disposal rate method of the Law Commission with the prevailing unit system of the High Courts to attribute a weightage to cases based on their nature and complexity. Under the unit system the High Courts have established disposal norms for the district judiciary based on units allocated for disposal of different cases. On the basis of the units prescribed, performance is rated from "excellent" and 'very good' to 'unsatisfactory'. The approach which has been suggested, based on the unit system, is as follows: Applying The Unit System to Assess Required Judge Strength (i) Number of judges required to dispose of the annual "flow" of new cases ("break even") 25. Every court should calculate in units its average annual filing over the previou....
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....isposals in certain courts has its own limitations. A lower rate of disposal may not necessarily reflect upon the efficiency with which a judge has conducted the court. Trials are held up because of a paucity of public prosecutors. Witnesses cited by the state, particularly police personnel, remain absent on dates fixed for trial, resulting in delays. Service of summons is delayed because of the laxity of police. In several northern states, particularly, the State of Uttar Pradesh soaring summer temperatures have in the absence of basic infrastructural facilities including continuous power supply resulted in the institutionalization of morning courts in several districts. The convenience of ordinary litigants and witnesses with limited resources, who travel from afar without proper means of transportation cannot be disregarded by the presiding judicial officer. The functioning of courts which lack even rudimentary infrastructure is affected, as a result. In a number of states, it has been the experience that there are impediments faced by the district courts including strikes of lawyers and abstention from work for causes unrelated to the functioning of the judge or court concerned....
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....pendency is achieved (wiping out the backlog within a target period of five years). 19. In response to the recommendations submitted by the Chairperson, NCMSC, an affidavit has been filed on behalf of the Union of India in the Ministry of Law and Justice. The Union government has stated that while it is broadly in agreement with this approach, the methodology suggested by NCMSC can be adopted subject to certain stipulations. The relevant part of the response is extracted below: 6. The Ministry of Law and Justice, Government of India is broadly in agreement with the recommendations made by NCMS Committee as indicated above. The methodology suggested by NCMS Committee can be adopted for determining the adequacy of judge strength with following stipulations. (i) All High Courts must evolve uniform data collection and data management methods under the ongoing E-Courts Mission Mode Project and make available online Real time Data on pendency of various categories of cases to the respective State Governments and Central Government. (ii) The trigger for creation of new posts must be activated only after 90% of the sanctioned strength has been filled up, faili....
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....nd utilisation: i) Whether any break-up of the said allocation has been provided for by the Finance Commission and/or Government of India or any guidelines as to the areas in which the said amount will be expended. ii) In case such a break-up is prescribed, a copy of the communication/order under which the same has been provided be placed on record. iii) What is the manner by which the Government of India proposes to monitor the utilization of the amount set apart for judiciary by the States. State wise allocation be also indicated. In pursuance of these directions, an affidavit has been filed on behalf of the Union Ministry of Law and Justice. The affidavit indicates that the Department of Justice had submitted the following proposals to the Fourteenth Finance Commission involving a total requirement of Rs. 9749 crores: State-wise and sector-wise details have been annexed to the affidavit. The Fourteenth Finance Commission endorsed the proposals of the Department of Justice and has urged the state governments to use the additional fiscal allocation provided in the form of tax devolution to meet the requirements of the state judiciaries. The Prime M....
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....sociated with the work of the High Court committees in-charge of monitoring 14th Finance Commission funds; (ii) Proper coordination be ensured between the Central and State Governments in regard to the submission of utilization certificates in relation to infrastructure projects of the state judiciaries; (iii) In respect of the e-Court Scheme and Infrastructure scheme which are being monitored by the Department of Justice, intimations of funds remitted to the State Governments under these two Schemes shall also be forwarded by the Department of Justice to the High Courts. (iv) State Governments shall (i) lend such assistance to the High Courts as is required for proper utilization of 14th Finance Commission funds; and (ii) grant a one time exemption for 2016-17 to facilitate proper utilization. The Union Minister of Law and Justice has since addressed communications to the Chief Ministers of States requesting that the state Finance Secretaries should assist the registries of the High Courts to prepare perspective plans/individual plans for activities to be undertaken in the justice sector. A letter has been addressed to the Chief Justices on 26 Septemb....