TaxTMI 
TaxTMI 
2018 (3) TMI 1495
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....nce in support of the charge, the trial Court convicted and sentenced the appellant. The appellant applied for bail pending consideration of appeal before the High Court. After the said prayer was rejected, another application was filed. The High Court rejected the second bail application with the observation that the evidence on record did not warrant grant of bail. 3. In this appeal, the order of the High Court is challenged mainly on the ground that the appellant had been in custody for more than ten years and the remedy of appeal will be meaningless if he has to remain in custody for the full term of sentence. Reliance has been placed on the judgment of this Court in Kashmira Singh versus State of Punjab (1977) 4 SCC 291. THE ISSUE 4. When the matter came up for consideration before this Court, following order was passed : "The grievance of the petitioner is that he has been in custody for more than ten years. He has neither been granted bail nor his appeal is heard. It is stated that there is no likelihood of the appeal being heard before the High Court in the near future. While we are not inclined to grant bail, we issue notice confined to the question as to how the si....
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....uting to delays". In England and Wales, pre-trial case management is rigorously followed in all criminal cases at both the trial and the appellate levels. Active case management 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 a timetable for the progress of the case; (iii) Monitoring the progress of the case and compliance with directions; (iv) Discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings; (v) Encouraging the participants to co-operate in the progression of the case, and (vi) Making use of technology." 7. Reference was also made to Case Management Criminal Procedure in England and Wales. 8. Learned Amicus further submitted that in appeals against acquittal efforts should be made to weed out unmeritorious appeals. Competent Government advocates should be appointed by a fair and transparent mechanism as laid down in State of Punjab versus Brijeshwar Singh (2016) 6 SCC 1. 9. Vacancies of the High Court Judges should be filled up well before the date a judge demits the off....
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....n the judicial system by establishing 1800 Fast Track Courts (FTCs) for five years for specified offences at a cost of 4,144 crores. As per resolution of the Joint Conference of Chief Justices and Chief Ministers, the Government has requested the State Governments to strengthen institutional mechanism between the State and the Judiciary. Steps have been taken for timely completion of infrastructure and eCourts Mission Mode project. There is need to implement Section 436A Cr.P.C. and ensure periodic monitoring of under-trial Review Committee Mechanism. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 has been notified to streamline the conduct of cases in Commercial Division and Commercial Courts. Amendments have been made in the Arbitration and Conciliation Act, 1996 and the Negotiable Instruments Act, 1881. In pursuance of resolution of Chief Justices' Conference held in April, 2015, Arrears Committees have been set up to clear backlog of cases pending from more than five years. The Supreme Court has also constituted Arrears Committee to formulate steps and reduce pendency of cases in High Courts and district courts. National Leg....
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....tedly presented to it with a view to draw attention of all concerned, leaving to the concerned authorities to consider and act in the matter. 16. There can be no dispute that access to speedy justice is part of fundamental right under Articles 14 and 21 of the Constitution. The National Commission to Review Working of the Constitution recommended that access to speedy justice may be incorporated as an express fundamental right (Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, para 31). 17. The matter has been subject of consideration in several decisions. In Imtiaz Ahmad versus State of U.P. (2012) 2 SCC 688. THE ISSUE taken up for consideration was delay in disposal of criminal cases where stay was granted by the High Court. On consideration of a report, the Court noted: "(a) As high as 9% of the cases have completed more than twenty years since the date of stay order. (b) Roughly 21% of the cases have completed more than ten years. (c) Average pendency per case (counted from the date of stay order till 26-7-2010) works out to be around 7.4 years. (d) Charge-sheet was found to be the most prominent stage where the cases were stayed with almost 32% of the cases falling u....
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....ty for delays. 20. Thereafter, the matter was considered in Imtiyaz Ahmad versus State of Uttar Pradesh and Ors. (2017) 3 SCC 658. This Court gave directions for review of cadre strength in terms of principles laid down therein. However, the said judgment appears to have dealt with the issue of fixing up of strength of judges for the subordinate judiciary and infrastructure for the district judiciary (Para 43). Possibility of decision of five year old cases pending in the High Courts particularly the criminal appeals within the existing system - Need to consider decongestion of Constitutional Courts. 21. In Akhtari Bi versus State of M.P. (2001) 4 SCC 355, this Court requested the Chief Justices of the High Courts to take immediate effective steps for disposal of criminal appeals pending for more than five years. 22. The matter was considered by the Joint Conference of Chief Ministers and the Chief Justices held in April, 2016 and it was resolved: "8. DELAY AND ARREARS COMMITTEE: xxx xxx xxx Resolved that (i) all High Courts shall assign topmost priority for disposal of cases which are pending for more than five years; (ii) High Courts where arrears of cases pending f....
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....e Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. ...". 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. Needless to say that nature of work before the Constitutional Courts particularly laying down of law is time consuming. Such Courts cannot be overburdened. 24. The Arrears Committee of this Court considered the issue of filling up of vacancies in subordinate courts and the issue of arrears. It was noted that while better monitoring, better management and other steps such as the Central Selection may help speedy disposal in subordinate courts, the working of constitutional courts stands on different footing. There being ....
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.... High Courts, search for structural alternative was the imperative need of the hour. There are other areas of appellate jurisdiction in the High Court including second appeals, matrimonial matters, 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 the cases in the High Courts and time taken in decision of such appeals. The statistics show that in most of the High Courts the disposal was less than the institution and as many as 16.29 lakh cases were more than five years old. Figure of 10 year old cases is 7.43 lakhs in the High Courts and more than 20 lakhs in the subordinate courts. Thus, there is need for re-engineering of the structure of administration of justice by which the Supreme Court and the High Courts may discharge only core constitutional functions while the statutory appeals or other statutory functions can be dealt with by an alternative mechanism by courts of appeal which, in hierarchy will be higher to the district judges but below the High Court. Such cadre may comprise of members drawn partly by selection from the Higher Judicial Service and partly f....
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.... (Minutes of the interaction of the Arrears Committee for Supreme Court & High Courts held on 22nd April, 2017. 28. 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. 29. Desirability of amending provisions of direct appeal to this Court was also considered in Gujarat Urja Vikas Nigam Limited versus Essar Power Limited (2016) 9 SCC 103. Therein, this Court considered the unique role of the highest court and observed that overburdening of Constitutional Courts was undesirable for functioning of the Constitution. Heavy work of routine nature before Constitutional Courts affected their assigned core role. Law Commission was asked to look into the matter. 30. In 272nd report, the Law Commission observed that the forum for challenging the order of tribunal should be appellate tribunals, w....
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....03 - Malik Mazhar Sultan (3) and Anr. Versus UP Public Service Commn & Ors - para 7. The uniform method of recruitment was directed to be followed by amending the applicable rules (2002) 4 SCC 247- All India Judges' Association versus UOI, para 27. 35. Relying upon the minutes of the Arrears Committee of this Court dated 8th April, 2017 that a central selection mechanism may be introduced to timely fill up all the vacancies with the best available talent, the Department of Justice, Government of India vide letter dated 28th April, 2017, addressed to the Secretary General of this Court, stated that the idea of Central Selection Mechanism ought to be considered. The said letter was treated by the then Chief Justice of India as Suo Motu Writ (Civil)No. 1 of 2017 (In Re: Central Selection Mechanism for Subordinate Judiciary versus Union of India & Ors ) and notices were issued. Learned amicus gave a note on the Central Selection Mechanism which was circulated to all the States and the High Courts vide order dated 28th July, 2017 ("1. We are tentatively of the view, that the objections raised by a few of the High Courts for centralization of the selection process of Subordinate Judges,....
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.... made by the High Court Collegium giving scope for a great deal of speculation as to the factors which must have weighed with the Collegium to make such a quick volte face. Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard. The records are absolutely beyond the reach of any person including the Judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country. 969. The result of this declaration is that the "Collegium System" postulated by the Second Judges case [(1993) 7 SCC 441] and the Third Judges case [Spl. Ref.1 of 1998, In Re.1998 7 SCC 739] gets revived. However, the procedure for appointment of Judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning. We had requested the learned counsel, on the close of submissions, to give suggestions on the basis that the petitions are dismissed and on the basis that the petitions are allowed. Unfortunately, we received no response, or at best a lukewarm response. 990. A....
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....proved working of the "Collegium System", list on 3-11-2015". 37. After due consideration of various suggestions, this aspect of the matter was dealt with vide order dated 16th December, 2015 as follows: "1255. In view of the above, the Government of India may finalise the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the Collegium comprising the four seniormost puisne Judges of the Supreme Court. They shall take the following factors into consideration: 1256.1. Eligibility criteria: The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the Collegium (both at the level of the High Court and the Supreme Court) for the appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time. 1256.2.Transparency in the appointment process: The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the websi....
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.... Judge. 39. We make it clear that we are in no manner deviating from the law laid down by this Court that primacy in appointment of Constitutional Courts is to be of the Chief Justice of India. At the same time, even without affecting such primacy improvement in working of Collegium is a felt necessity as held above. Five Judge Bench of this Court directed setting up of the Secretariat and also to incorporate other factors for improved and effective working of the collegiums system. This apart, corrective measures against post appointment conduct or inadequate performance or failure to uphold righteous conduct need to be evolved. These aspects require urgent attention of concerned authorities. 40. We may particularly note that if a High Court remains without a permanent Chief Justice, process of speedy justice certainly suffers. In spite of timeline in the MOP for appointments in pursuance of Judgement of this Court in Supreme Court Advocates-on-Record Association and Ors. versus Union of India (1993)4 SCC 441, para 478 that there will be no Acting Chief Justice for more than one month (Para 5 of the 'Memorandum showing the Procedure for Appointment and Transfer of Chief Justice....
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....pulated. Accountability in terms of Performance Measurement and Righteous of Conduct at all levels of judicial hierarchy including Constitutional Courts 41. There is also a need for mechanism to evaluate and compile performance of the judicial system as per observations in 245th Report of the Law Commission so that there is non-mandatory timeline for decision of cases and accountability consistent with the right of speedy justice. Such mechanism may provide norms for performance measurement for all judges in the hierarchy. The same has to be done without affecting independence of judiciary. There is also need for an in-house mechanism manned by experts but with safeguards consistent with independence of judiciary for measures against erring Judges other than impeachment as observed in Re: Shri Justice CS Karnan (supra). Reforms in the legal profession - remedying uncalled for strikes. 42. We may also deal with another important aspect of speedy justice. It is well known that at some places there are frequent strikes, seriously obstructing access to justice. Even cases of persons languishing in custody are delayed on that account. By every strike, irreversible damage is suffered....
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....ourts. An Advocate can be debarred from appearing in Court even if the disciplinary jurisdiction for misconduct is vested with the Bar Councils (Paras 20, 30 to 35). This Court requested the Law Commission to look into all relevant aspects relating to regulation of legal profession (Para 58). 47. The Law Commission, accordingly, examined the relevant aspects relating to regulation of the legal profession. The Law Commission in its 266th Report found that such conduct of the advocates affects functioning of courts and particularly it contributes to pendency of cases. It analyzed the data on loss of working days on account of call of strikes. The analysis is as follows : "7.2. In the State of Uttarakhand, the information sent by the High Court for the years 2012-2016 shows that in Dehradun District, the Advocates were on strike for 455 days during 2012- 2016 (on an average, 91 days per year). In Haridwar District, 515 days (103 days a year) were wasted on account of strike. 7.3 In the case of the State of Rajasthan, the High Court of Judicature at Jodhpur saw 142 days of strike during 2012- 2016, while the figure stood at 30 for the Jaipur Bench. In Ajmer District courts, strike....
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....s there are compelling circumstances and the approval for a symbolic strike of one day is obtained from the Bar Council concerned, the advocates shall not resort to strike or abstention from the court work." 48. Thereafter, the Law Commission referred to observations in the judgment of this Court in Ex-Capt. Harish Uppal case (supra) that there should be no strikes by the Bar except in rarest of rare situations which should also not exceed one day. The Bar Councils were called upon to take appropriate action in the matter. The Law Commission noted that the strikes were continuing and causing great obstruction to the access to justice. It was observed : "8.3 In spite of all these, the strikes have continued unabated. The dispensation of justice must not stop for any reason. The strike by lawyers have lowered the image of the courts in the eyes of the general public. The Supreme Court has held that right to speedy justice is included in article 21 of the Constitution. In Hussainara Khatoon v. Home Secy., State of Bihar; and in some other cases, it was held that the litigant has a right to speedy justice. The lawyers' strike, however, result in denial of these rights to the citiz....
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...., keeping in view the wide expanse of the legal profession being involved in almost all areas of life. The very constitution of the Bar Councils and their functions also require the introduction of a few provisions in order to consolidate the function of the bar councils in its internal matters as well." 50. Since the strikes are in violation of law laid down by this Court, the same amount to contempt and at least the office bearers of the associations who give call for the strikes cannot disown their liability for contempt. Every resolution to go on strike and abstain from work is per se contempt. Even if proceedings are not initiated individually against such contemnors by the court concerned or by the Bar Council concerned for the misconduct, it is necessary to provide for some mechanism to enforce the law laid down by this Court, pending a legislation to remedy the situation. 51. Accordingly, we consider it necessary, with a view to enforce fundamental right of speedy access to justice under Articles 14 and 21 and law laid by this Court, to direct the Ministry of Law and Justice to present at least a quarterly report on strikes/abstaining from work, loss caused and action pro....