TaxTMI 
TaxTMI 
2018 (3) TMI 1495
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....ed the murder of one Shahid. In view of evidence 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 gran....
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....ck of robust case and case flow management is perhaps the most significant factor contributing 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 Brije....
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....Courts. In addition, 2,852 Court Halls and 1,622 houses are under construction. 14th Finance Commission has endorsed the proposal to strengthen 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....
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....ecutive and the legislature. However, since the subject affects fundamental right of speedy justice, this Court cannot refuse to look into the problem repeatedly 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....
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....ngs. It was observed that there was need to establish non-mandatory timeframe for different types of cases. Unless judges and litigants have clear expectations, there will be little accountability 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 C....
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....ir duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the 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 court....
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....stice. In most of the High Courts disposal of Criminal Appeals was less than the institution. Delay in decision of criminal cases, particularly in category of serious cases where granting bail was not safe, was not a satisfactory situation. Unless there was 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 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 constit....
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....ormation Act (RTI), summary procedures for civil and criminal disputes of certain categories (Minutes of the interaction of the Arrears Committee for Supreme Court & High Courts held on 8th April, 2017). The matter was also considered thereafter in the meeting of Arrears Committee of the Supreme Court with the Arrears Committees of the High Courts (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 ....
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....ction by all India level competition and constitution of All India Judicial Service. In All India Judges' Association versus Union of India (1992) 1 SCC 119 - para 12 this Court observed that the Union of India should take steps in the matter as early as possible. This Court also directed vacancies at all levels be filled up in a time bound manner (2008) 17 SCC 703 - 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 ....
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....tem failed. It is a matter of public record that in the last 20 years, after the advent of the Collegium System, a number of recommendations made by the Collegia of the High Courts came to be rejected by the Collegium of the Supreme Court. There are also cases where the Collegium of this Court quickly retraced its steps having rejected the recommendations of a particular name 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 ap....
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....as been argued that this Court can go into this aspect without revisiting the earlier decisions of the larger Benches. I am of the view that such grievances ought to be gone into for which the matter needs to be listed for hearing. Accordingly, while upholding the Amendment, the Court vide order dated 16th October, 2015 directed: "5. To consider introduction of appropriate measures, if any, for an improved 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....
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.... suitable for assessing the personality of the candidate who is being considered for appointment to be a member of a constitutional court is a 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 be unquestionable.") observations have been made as to the need to revisit the process of appointments and to set up mechanism for corrective measures other than impeachment against conduct of an erring 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 authorit....
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....es and at least some independent full time experts are required, if timely and best appointments are to be ensured and requisite in-house oversight is to be a reality. A full time body consistent with independence of judiciary appears to be immediate need for the system. Absence thereof contributes to denial of justice. The Central Government must also ensure that MOP in pursuance of order of this Court in NJAC case dated 16th December, 2015 brings about the improvements in working of the collegiums as stipulated. 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 co....
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....ion of right of appearance in courts is within the jurisdiction of the courts. This Court also asked the Law Commission to suggest appropriate changes in the regulatory framework for the legal profession (2016)8 SCC 335 - Mahipal Singh Rana versus State of Uttar Pradesh. The Law Commission has submitted 266th Report. The problem continues seriously affecting the rule of law. 46. In Mahipal Singh Rana (supra), this court noted that the High Courts can frame rules to lay down conditions on which Advocates can be permitted to practise in Courts. 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....
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....from work varied from local, national to international issues, having no relevance to the working of the courts. To mention a few, bomb blast in Pakistan school, amendments to Sri Lanka's Constitution, interstate river water disputes, attack on / murder of advocate, earthquake in Nepal, to condole the death of their near relatives, to show solidarity to advocates of other State Bar Associations, moral support to movements by social activists, heavy rains, or on some religious occasions such as shraadh, Agrasen Jayanti, etc. or even for kavi sammelan. 7.8 The Commission is of the view that unless 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 ....
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....air play and canons of ethics. Therefore, when he opts to strike or boycott the Court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate." 49. Examining other aspects of the regulation of legal profession, the Law Commission recommended review of regulatory mechanism of the Advocates Act as follows: "17.1 There is a dire necessity of reviewing the regulatory mechanism of the Advocates Act, not only in matters of discipline and misconduct of the advocates, but in other areas as well, 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. Eve....
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....rt in All India Judges' Association versus Union of India (1992) 1 SCC 119, the Minutes of the Arrears Committee of this Court dated 8th April, 2017, and the experience on the subject, pending consideration of issue of All India Judicial Service, there is need to consider the proposal for central selection mechanism for filling up vacancies in courts other than the Constitutional Courts and also to consider as to how to supplement inadequacies in the present system of appointment of judges to the Constitutional Courts at all levels. (iii) There is need to consider in the light of observations hereinabove and all other relevant considerations whether there should be a body of full time experts without affecting independence of judiciary, to assist in identifying, scrutinizing and evaluating candidates at pre-appointment stage and to evaluate performance post appointment. The Government may also consider what changes are required in the process of evaluation of candidates at its level so that no wrong candidate is appointed. What steps are required for ensuring righteous conduct of Judges at later stage is also an issue for consideration. (iv) Pending legislative me....