REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. 254-262 OF 2012
IMTIYAZ AHMAD .....APPELLANT
VERSUS
STATE OF U.P. & ORS. .....RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
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 pendency of similar cases before
the High Courts, where proceedings were stayed at the stage of the
registration of an FIR, investigation, framing of charges or during trial,
in exercise of the power conferred by Article 226 of the Constitution or
Sections 397/482 of Code of Criminal Procedure,1973. Hence this Court, by
an order dated 8 January 2010 called for reports from the Registrars
General of the High Courts, in regard to serious cases involving: (i)
murder; (ii) rape; (iii) kidnapping; and (iv) dacoity. On the basis of the
data received, reports were presented to the Court by the amicus curiae.
These reports were considered in an order dated 1 February 2012 by a Bench
of two learned Judges, including one of us (the learned Chief Justice of
India). In the order of this Court dated 1 February 2012 the findings in
the second report submitted by the amicus curiae were summarized thus :
“(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
July 26, 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 under this category. The
next two prominent stages are found to be “appearance” and “summons”, with
each comprising 19% of the total number of cases”.
3 During the course of the hearing of these proceedings, the Union
Government has been impleaded as a party to the proceedings having regard
to the fact that seminal issues are involved directly impacting upon the
administration of justice. This Court has assumed jurisdiction since the
long delays in the disposal of cases, particularly criminal cases, has a
serious impact both on the rule of law and on access to justice which is a
fundamental right guaranteed under Article 21 of the Constitution.
4 In 1958, the fourteenth Report of the Law Commission of India on the
Reform of Judicial Administration dealt with the issue of delay and arrears
and identified inadequate judge strength as the “root cause” of the
problem. This perspective has been reiterated in several successive
reports, including of the Law Commission. These include the 77th Report of
the Law Commission of India on “Delay 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 wishes to say that this is one clear criterion of manpower
planning. If legislative representation can be worked out, as pointed out
earlier, on the basis of population and if other services of the State –
bureaucracy, police etc. – can also be similarly planned, there is no
reason at all for the non-extension of this principle to the judicial
services. It must also be frankly stated that while population may be a
demographic unit, it is also a democratic unit. In other words, we are
talking of citizens with democratic rights including right to access to
justice which it is the duty of the State to provide.”
The Report indicated that though the US in 1981 had one-third of India’s
population, it had a judge to population ratio of one hundred seven judges
per million, while in India it was only ten judges per million. The Law
Commission suggested that the judge to population ratio be immediately
increased from ten judges to fifty judges per million. The Report
suggested that by 2000 India should achieve a target of one hundred and
seven judges per million (which the US had in 1981).
6 If these recommendations had been acted upon India would have judge
strength of 1,10,071 in 2000 (with the population of 1028 million) and
1,36,794 as on 31 December 2015. However, the sanctioned strength of the
judiciary at all levels on 31 December 2015 was only 21,607.
7 This Court in a judgment delivered on 21 March 2002 in All India
Judges Association v. Union of India[1] endorsed the views of the Law
Commission in its 120th Report and directed that a judge to population
ratio of fifty judges per million be achieved within a period of five years
and not later than ten years in any case. This Court observed :
“The increase in the Judge strength to 50 Judges per 10 lakh people should
be effected and implemented with the filling up of the posts in phased
manner to be determined and directed by the Union Ministry of Law, but this
process should be completed and the increased vacancies and posts filled
within a period of five years from today. Perhaps increasing the Judge
strength by 10 per 10 lakh people every year could be one of the methods
which may be adopted thereby completing the first stage within five years
before embarking on further increase if necessary”.
The Report of the Parliamentary Standing Committee on Arrears in Courts
(2002) supported 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[2] 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, a direction was
issued for the creation of additional posts in the district judiciary to
the extent of ten per cent of the total regular cadre within a stipulated
period.
9 In a recent Report prepared by the Centre for Research and Planning
of the Supreme Court of India titled “Subordinate Courts of India : A
Report on Access to Justice 2016” a detailed analysis has been made of the
pendency of cases in the district judiciary. The following table which has
been compiled in the Report shows the figures of institution, disposal and
pendency in the district judiciary for 2013-15 :
|Year |
Where,
BEJ= Additional No. of Judges required to Break Even.
AI= Average Institution
ARD= Average Rate of Disposal
D2010, D2011, D2012 = Annual Disposal for that year
J2010, J2011, J2012 = Annual Working Strength of Judges for that year
J= Current Working Strength of 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:
|AJBk = (B/ARD)/t |
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 raises certain
concerns about the rate of disposal method suggested by the Law Commission.
These concerns as set out in the note submitted by him, are summarized
below :
The definition of backlog (difference between institution and disposal)
does not take into account the fact that every case requires a reasonable
period for its disposal based on the nature of the dispute involved in that
case. Under the above definition, even cases which have been filed towards
the end of a year must be disposed of by 31 December to eliminate the
backlog. In the absence of established time frames in our system for
disposal of cases the elimination of a backlog is virtually unimplementable
since it is impossible for courts to dispose of cases filed days or weeks
before the end of a specified reference period;
The rate of disposal method unintentionally incentivizes lower disposals
because lower the rate of disposal, the greater the number of additional
judicial positions which that court will get under this methodology. The
method proposed by the Law Commission is (according to the critique) not
designed to improve productivity nor does it concern itself with judge to
case ratio;
The rate of disposal method does not give weightage to cases based upon
their nature and complexity and all types of cases are treated at par.
Complex cases require greater amounts of judicial time and effort than
simple cases;
The rate of disposal method does not take into account the reasonableness
of the work load of judges. Any assessment of judge strength must take due
account of the “maximum permissible reasonable work load” for a judge
before mental and physical fatigue start impairing the quality of working;
Merely focusing upon the reduction of backlog is not adequate since what is
required is a scientific method to assess the judge strength needed to deal
with the backlog as well as the flow of new cases.
14 NCMSC has suggested that the clearance of backlog is not the sole or
central basis for determining judge strength. Several other critical
parameters include (i) rate of case clearance: the number of cases disposed
of as a percentage of institution; (ii) on time disposal rate – the
percentage of cases resolved within an established time frame; (iii) pre-
trial custody periods wherein an under-trial is in custody pending trial
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 previous five years for all types of cases.
26. Divide the annual filing units above by the number of annual units
required to be disposed of by a judge for VERY GOOD performance.
27. This will give for each court, the number of judges required to ensure
“break even”, i.e., disposal equals the number of new cases filed every
year in that court.
(ii)Number of judges required for disposal of backlog of cases
28. First, every court should calculate in units its “backlog”, i.e. the
number of cases of all categories pending for more than the maximum time
standard set by it for disposal (e.g., three years)
29. Second, a suitable time period may be established within which this
“backlog” should be cleared (e.g. 5 years).
30. Third, divide the total backlog in units by the number of years within
which it has to be cleared (e.g., 5 years). This will give the required
annual disposal of “backlog”.
31. Fourth, divide the required annual disposal of backlog by the number of
annual units required to be disposed of by each judge (units required for
VERY GOOD performance).
32. This gives the number of judges required to dispose of “the backlog”
within the prescribed time frame.
33. The judge strength so assessed should be monitored annually.
34. Needless to say, it will be desirable that unit systems are
rationalized and strengthened with as much uniformity of approach across
the country as feasible, addressing variations and limitations of systems
currently in place.
iii. Total number of judges required for achieving “break even” plus
“disposal of backlog”
35. Add the number of Judges required for “break even” to the number of
Judges required for disposal of backlog, as determined above.
iv. Trigger for creation of new courts
36. When for any court, the total number of units required to be disposed
annually (“breakeven” plus backlog, if any) is greater than 1.5 times the
disposal norm for a “very good performance” judge, a new court would need
to be created.”
16 While evaluating the limitations of the rate of disposal method
suggested by the Law Commission which have been noted in the report
submitted by the Chairperson, NCMSC, certain aspects would have to be borne
in mind. The criticism that the rate of disposal method places an incentive
on lower disposals 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. The loss of mandays on
account of such causes results in a wastage of productive judicial time.
Hence, it would not be correct to assert that the rate of disposal method
places an incentive upon the unproductive or inefficient. Ground realities
cannot be ignored merely on the basis of statistics.
17 Another aspect which merits emphasis is that while prescribing units
for disposal, a robust attempt must be made by the High Courts to ensure
that due importance is given to the disposal of old cases. The units
prescribed for disposal must provide adequate incentives to attend to
complex and time consuming cases. Failing this, the out-turn proscribed for
the district judiciary is attempted to be achieved without due attention
being given to the disposal of those cases which remain pending for long as
a result of their complexity, the number of witnesses involved and such
other factors. This is an aspect which needs to be looked into by the High
Courts in consultation with the district judiciary. District judges with
long years of experience in the service are in a position to appreciate
practical realities and to indicate the manner in which the unit system can
be revised in each state to encourage judges at both the trial and the
appellate level to take up those cases which consume judicial time and
which should not be placed on the back-burner for fear that the judge will
not be able to fulfill the units expected. The Chief Justices should
initiate the process of revising unit based norms in relation to their
states. Each state has its own requirements specific to it which have to be
borne in mind. The unit system must be framed so as to recognize the output
of judicial officers in disposing of those cases which clog the system.
18 In prescribing the judge strength it is necessary to ensure that a
backlog does not result in the future as a result of an increase in annual
filings. The rate of increase in future filings has to be anticipated.
Anticipation of what the future holds is an estimate. One method of
estimating the extent of the increase in future filings is to have regard
to the increase reflected over a comparable period in the past for which
data is available. Those figures can be extrapolated to determine the
increase in annual filings. The enhancement in the strength of the district
judiciary should be such that a ‘five plus zero’ 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, failing which the creation
of additional posts will have no impact or consequence on reduction of
pendency”.
20 The report which has been submitted to this Court by the Chairperson,
NCMSC observes that in the long term, the judge strength of the courts in
the district judiciary will have to be assessed by a scientific method to
determine the total number of judicial hours required for disposing of the
case load of each court. In the interim, a weighted disposal approach, as
explained above has been suggested. Since the Union government is broadly
in agreement with this approach, we deem it appropriate and proper to
permit it to be utilized at this stage for the purpose of determining the
required judge strength of the district judiciary. The Union government
has, however, suggested two broad stipulations. The first is that all the
High Courts must make available real time data on the pendency of various
categories of cases. In this regard, both the NCMSC as well as E-Committee
are actively engaging with the High Courts. An endeavour should be made to
ensure that real time data is duly compiled and made available online by
the High Courts as part of the National Judicial Arrears Grid. We are not
inclined to accept the second stipulation that new posts should be created
only after 90 per cent of the sanctioned strength has been filled up. For
one thing, filling up of vacancies in the district judiciary is an on-going
process. In many states, the process of filling up posts is pursued in
conjunction with the State Public Service Commissions. Many of the delays
are not in the control of the High Courts. Moreover, it is necessary to
provide for the required judge strength in every state district judiciary
so as to facilitate the creation of infrastructure. In several states, the
available infrastructure is inadequate and insufficient to meet even the
existing judge strength. Hence, a scientific assessment of the required
judge strength will form the basis of ensuring that the state governments
put into place the infrastructure required for tackling judicial delays.
21 By an order of this Court dated 29 November 2016, this Court had
permitted the Union government to place on the record the following
information in regard to funds made available by the Fourteenth Finance
Commission for meeting the needs of the state judiciary and the modalities
for disbursement and 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 Rupees 9749
crores :
Pendency Reduction : Rs.858.83 crore
Establishment of Fast Track Courts : Rs.4144.11 crore
Establishment of Family
Courts in districts without
such courts : Rs.541.06 crore
Re-designing existing
court complexes to become
more litigant friendly : Rs.1400 crore
Augmenting technical
support for ICT enabled courts : Rs.479.68 crore
Scanning and Digitalisation
of Case Records of High Courts
and District Courts : Rs.752.50 crore
Enhancing Access to Justice
Support for Law School
based Legal Aid Clinics with
focus on undertrials : Rs.50.50 crore
Organizing Lok Adalats : Rs.93.61 crore
Support for Mediation
/conciliation in ADR centres : Rs.300 crore
Incentives to Mediators
/Concilators : Rs.503.44 crore
(a) Training and capacity
building of judges, public
prosecutors, mediators,
lawyers: Refresher, ongoing : Rs.550 crore
(b) Establishment of
State Judicial Academies
in Manipur, Meghalaya and
Tripura : Rs.75 crore
Total Cost : Rs.9749 crore”
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 Minister of India has addressed a
letter dated 23 April 2015 to the Chief Ministers calling upon them to
allocate funds required for the activities recommended by the Fourteenth
Finance Commission in the state budgets from 2015-2016 to improve the
working of the judicial system and provide speedy justice. Following the
joint conference of Chief Justices of High Courts and Chief Ministers of
States held in April 2015, the Union Minister of Law and Justice addressed
letters to the Chief Justices and Chief Ministers in June 2015 requesting
them to institute a mechanism for regular interaction to resolve
outstanding issues particularly those relating to infrastructure and man-
power needs of the judiciary. It may be noted here that at the Conference
of Chief Justices of High Courts held in April 2016, the following
resolution was adopted :
“Resolved that the following strategy be adopted by the High Courts:
Constitution of a dedicated cell for the utilization of funds. The
composition of the Cell should consist of policy makers, experts in
planning and budgeting, senior judicial officers and persons to be
nominated by the Chief Justice. The Cell shall be assigned the task of:
(a) Preparing perspectives/annual plans and time
lines;
(b) Drawing up budget estimates;
(c) Monitoring and review of the implementation of
each scheme;
(d) Taking up the matter with the State Government to ensure release of
funds.
Submitting a request for funds from the State Government within time for
financial years 2016-17 to 2019-2020;
Ensuring that funds are spent in accordance with the budgetary allocation
and speedy and effective utilization. For this purpose, periodical
meetings and reviews be conducted; and
Monitoring of schemes and outcomes through special on-line portals and ICT
tools. Progress made be reviewed in State Court Management System meetings
and quarterly progress reports be forwarded to the Supreme Court for review
by National Court Management System”.
Thereafter, in the Conference of Chief Justices and Chief Ministers, the
following resolution was adopted :
“With a view to facilitate proper and timely utilization of funds made
available by the 14th Finance Commission to the State judiciaries, it was
resolved that:
Finance Secretaries of each State be associated with the work of the High
Court committees in-charge of monitoring 14th Finance Commission funds;
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;
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.
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 September
2016. The affidavit explains that necessary mechanisms have been set up
under the resolutions of the Conference of Chief Justices and Chief
Ministers and of the Chief Justices respectively.
22 Having regard to the above background, we now proceed to formulate
our directions in the following terms :
Until NCMSC formulates a scientific method for determining the basis for
computing the required judge strength of the district judiciary, the judge
strength shall be computed for each state, in accordance with the interim
approach indicated in the note submitted by the Chairperson, NCMSC;
NCMSC is requested to endeavour the submission of its final report by 31
December 2017;
A copy of the interim report submitted by the Chairperson, NCMSC shall be
forwarded by the Union Ministry of Law and Justice to the Chief Justices of
all the High Courts and Chief Secretaries of all states within one month so
as to enable them to take follow-up action to determine the required judge
strength of the district judiciary based on the NCMSC interim report,
subject to what has been stated in this judgment;
The state governments shall take up with the High Courts concerned the task
of implementing the interim report of the Chairperson, NCMSC (subject to
what has been observed above) and take necessary decisions within a period
of three months from today for enhancing the required judge strength of
each state judiciary accordingly;
The state governments shall cooperate in all respects with the High Courts
in terms of the resolutions passed in the joint conference of Chief
Justices and Chief Ministers in April 2016 with a view to ensuring
expeditious disbursal of funds to the state judiciaries in terms of the
devolution made under the auspices of the Fourteenth Finance Commission;
The High Courts shall take up the issue of creating additional
infrastructure required for meeting the existing sanctioned strength of
their state judiciaries and the enhanced strength in terms of the interim
recommendation of NCMSC;
The final report submitted by NCMSC may be placed for consideration before
the Conference of Chief Justices. The directions in (i) above shall then be
subject to the ultimate decision that is taken on receipt of the final
report; and
A copy of this order shall be made available to the Registrars General of
each High Court and to all Chief Secretaries of the States for appropriate
action.
23 List the proceedings for disposal of the criminal appeals before the
appropriate bench in the third week of July 2017.
…........................................CJI
[T S THAKUR]
............. …...............................J
[Dr D Y CHANDRACHUD]
................................................J
[L NAGESWARA RAO]
New Delhi
January 02, 2017.
-----------------------
[1]
[2] (2002) 4 SCC 247
[3]
[4] (2012) 6 SCC 502
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. 254-262 OF 2012
IMTIYAZ AHMAD .....APPELLANT
VERSUS
STATE OF U.P. & ORS. .....RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
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 pendency of similar cases before
the High Courts, where proceedings were stayed at the stage of the
registration of an FIR, investigation, framing of charges or during trial,
in exercise of the power conferred by Article 226 of the Constitution or
Sections 397/482 of Code of Criminal Procedure,1973. Hence this Court, by
an order dated 8 January 2010 called for reports from the Registrars
General of the High Courts, in regard to serious cases involving: (i)
murder; (ii) rape; (iii) kidnapping; and (iv) dacoity. On the basis of the
data received, reports were presented to the Court by the amicus curiae.
These reports were considered in an order dated 1 February 2012 by a Bench
of two learned Judges, including one of us (the learned Chief Justice of
India). In the order of this Court dated 1 February 2012 the findings in
the second report submitted by the amicus curiae were summarized thus :
“(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
July 26, 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 under this category. The
next two prominent stages are found to be “appearance” and “summons”, with
each comprising 19% of the total number of cases”.
3 During the course of the hearing of these proceedings, the Union
Government has been impleaded as a party to the proceedings having regard
to the fact that seminal issues are involved directly impacting upon the
administration of justice. This Court has assumed jurisdiction since the
long delays in the disposal of cases, particularly criminal cases, has a
serious impact both on the rule of law and on access to justice which is a
fundamental right guaranteed under Article 21 of the Constitution.
4 In 1958, the fourteenth Report of the Law Commission of India on the
Reform of Judicial Administration dealt with the issue of delay and arrears
and identified inadequate judge strength as the “root cause” of the
problem. This perspective has been reiterated in several successive
reports, including of the Law Commission. These include the 77th Report of
the Law Commission of India on “Delay 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 wishes to say that this is one clear criterion of manpower
planning. If legislative representation can be worked out, as pointed out
earlier, on the basis of population and if other services of the State –
bureaucracy, police etc. – can also be similarly planned, there is no
reason at all for the non-extension of this principle to the judicial
services. It must also be frankly stated that while population may be a
demographic unit, it is also a democratic unit. In other words, we are
talking of citizens with democratic rights including right to access to
justice which it is the duty of the State to provide.”
The Report indicated that though the US in 1981 had one-third of India’s
population, it had a judge to population ratio of one hundred seven judges
per million, while in India it was only ten judges per million. The Law
Commission suggested that the judge to population ratio be immediately
increased from ten judges to fifty judges per million. The Report
suggested that by 2000 India should achieve a target of one hundred and
seven judges per million (which the US had in 1981).
6 If these recommendations had been acted upon India would have judge
strength of 1,10,071 in 2000 (with the population of 1028 million) and
1,36,794 as on 31 December 2015. However, the sanctioned strength of the
judiciary at all levels on 31 December 2015 was only 21,607.
7 This Court in a judgment delivered on 21 March 2002 in All India
Judges Association v. Union of India[1] endorsed the views of the Law
Commission in its 120th Report and directed that a judge to population
ratio of fifty judges per million be achieved within a period of five years
and not later than ten years in any case. This Court observed :
“The increase in the Judge strength to 50 Judges per 10 lakh people should
be effected and implemented with the filling up of the posts in phased
manner to be determined and directed by the Union Ministry of Law, but this
process should be completed and the increased vacancies and posts filled
within a period of five years from today. Perhaps increasing the Judge
strength by 10 per 10 lakh people every year could be one of the methods
which may be adopted thereby completing the first stage within five years
before embarking on further increase if necessary”.
The Report of the Parliamentary Standing Committee on Arrears in Courts
(2002) supported 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[2] 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, a direction was
issued for the creation of additional posts in the district judiciary to
the extent of ten per cent of the total regular cadre within a stipulated
period.
9 In a recent Report prepared by the Centre for Research and Planning
of the Supreme Court of India titled “Subordinate Courts of India : A
Report on Access to Justice 2016” a detailed analysis has been made of the
pendency of cases in the district judiciary. The following table which has
been compiled in the Report shows the figures of institution, disposal and
pendency in the district judiciary for 2013-15 :
|Year |
Where,
BEJ= Additional No. of Judges required to Break Even.
AI= Average Institution
ARD= Average Rate of Disposal
D2010, D2011, D2012 = Annual Disposal for that year
J2010, J2011, J2012 = Annual Working Strength of Judges for that year
J= Current Working Strength of 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:
|AJBk = (B/ARD)/t |
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 raises certain
concerns about the rate of disposal method suggested by the Law Commission.
These concerns as set out in the note submitted by him, are summarized
below :
The definition of backlog (difference between institution and disposal)
does not take into account the fact that every case requires a reasonable
period for its disposal based on the nature of the dispute involved in that
case. Under the above definition, even cases which have been filed towards
the end of a year must be disposed of by 31 December to eliminate the
backlog. In the absence of established time frames in our system for
disposal of cases the elimination of a backlog is virtually unimplementable
since it is impossible for courts to dispose of cases filed days or weeks
before the end of a specified reference period;
The rate of disposal method unintentionally incentivizes lower disposals
because lower the rate of disposal, the greater the number of additional
judicial positions which that court will get under this methodology. The
method proposed by the Law Commission is (according to the critique) not
designed to improve productivity nor does it concern itself with judge to
case ratio;
The rate of disposal method does not give weightage to cases based upon
their nature and complexity and all types of cases are treated at par.
Complex cases require greater amounts of judicial time and effort than
simple cases;
The rate of disposal method does not take into account the reasonableness
of the work load of judges. Any assessment of judge strength must take due
account of the “maximum permissible reasonable work load” for a judge
before mental and physical fatigue start impairing the quality of working;
Merely focusing upon the reduction of backlog is not adequate since what is
required is a scientific method to assess the judge strength needed to deal
with the backlog as well as the flow of new cases.
14 NCMSC has suggested that the clearance of backlog is not the sole or
central basis for determining judge strength. Several other critical
parameters include (i) rate of case clearance: the number of cases disposed
of as a percentage of institution; (ii) on time disposal rate – the
percentage of cases resolved within an established time frame; (iii) pre-
trial custody periods wherein an under-trial is in custody pending trial
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 previous five years for all types of cases.
26. Divide the annual filing units above by the number of annual units
required to be disposed of by a judge for VERY GOOD performance.
27. This will give for each court, the number of judges required to ensure
“break even”, i.e., disposal equals the number of new cases filed every
year in that court.
(ii)Number of judges required for disposal of backlog of cases
28. First, every court should calculate in units its “backlog”, i.e. the
number of cases of all categories pending for more than the maximum time
standard set by it for disposal (e.g., three years)
29. Second, a suitable time period may be established within which this
“backlog” should be cleared (e.g. 5 years).
30. Third, divide the total backlog in units by the number of years within
which it has to be cleared (e.g., 5 years). This will give the required
annual disposal of “backlog”.
31. Fourth, divide the required annual disposal of backlog by the number of
annual units required to be disposed of by each judge (units required for
VERY GOOD performance).
32. This gives the number of judges required to dispose of “the backlog”
within the prescribed time frame.
33. The judge strength so assessed should be monitored annually.
34. Needless to say, it will be desirable that unit systems are
rationalized and strengthened with as much uniformity of approach across
the country as feasible, addressing variations and limitations of systems
currently in place.
iii. Total number of judges required for achieving “break even” plus
“disposal of backlog”
35. Add the number of Judges required for “break even” to the number of
Judges required for disposal of backlog, as determined above.
iv. Trigger for creation of new courts
36. When for any court, the total number of units required to be disposed
annually (“breakeven” plus backlog, if any) is greater than 1.5 times the
disposal norm for a “very good performance” judge, a new court would need
to be created.”
16 While evaluating the limitations of the rate of disposal method
suggested by the Law Commission which have been noted in the report
submitted by the Chairperson, NCMSC, certain aspects would have to be borne
in mind. The criticism that the rate of disposal method places an incentive
on lower disposals 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. The loss of mandays on
account of such causes results in a wastage of productive judicial time.
Hence, it would not be correct to assert that the rate of disposal method
places an incentive upon the unproductive or inefficient. Ground realities
cannot be ignored merely on the basis of statistics.
17 Another aspect which merits emphasis is that while prescribing units
for disposal, a robust attempt must be made by the High Courts to ensure
that due importance is given to the disposal of old cases. The units
prescribed for disposal must provide adequate incentives to attend to
complex and time consuming cases. Failing this, the out-turn proscribed for
the district judiciary is attempted to be achieved without due attention
being given to the disposal of those cases which remain pending for long as
a result of their complexity, the number of witnesses involved and such
other factors. This is an aspect which needs to be looked into by the High
Courts in consultation with the district judiciary. District judges with
long years of experience in the service are in a position to appreciate
practical realities and to indicate the manner in which the unit system can
be revised in each state to encourage judges at both the trial and the
appellate level to take up those cases which consume judicial time and
which should not be placed on the back-burner for fear that the judge will
not be able to fulfill the units expected. The Chief Justices should
initiate the process of revising unit based norms in relation to their
states. Each state has its own requirements specific to it which have to be
borne in mind. The unit system must be framed so as to recognize the output
of judicial officers in disposing of those cases which clog the system.
18 In prescribing the judge strength it is necessary to ensure that a
backlog does not result in the future as a result of an increase in annual
filings. The rate of increase in future filings has to be anticipated.
Anticipation of what the future holds is an estimate. One method of
estimating the extent of the increase in future filings is to have regard
to the increase reflected over a comparable period in the past for which
data is available. Those figures can be extrapolated to determine the
increase in annual filings. The enhancement in the strength of the district
judiciary should be such that a ‘five plus zero’ 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, failing which the creation
of additional posts will have no impact or consequence on reduction of
pendency”.
20 The report which has been submitted to this Court by the Chairperson,
NCMSC observes that in the long term, the judge strength of the courts in
the district judiciary will have to be assessed by a scientific method to
determine the total number of judicial hours required for disposing of the
case load of each court. In the interim, a weighted disposal approach, as
explained above has been suggested. Since the Union government is broadly
in agreement with this approach, we deem it appropriate and proper to
permit it to be utilized at this stage for the purpose of determining the
required judge strength of the district judiciary. The Union government
has, however, suggested two broad stipulations. The first is that all the
High Courts must make available real time data on the pendency of various
categories of cases. In this regard, both the NCMSC as well as E-Committee
are actively engaging with the High Courts. An endeavour should be made to
ensure that real time data is duly compiled and made available online by
the High Courts as part of the National Judicial Arrears Grid. We are not
inclined to accept the second stipulation that new posts should be created
only after 90 per cent of the sanctioned strength has been filled up. For
one thing, filling up of vacancies in the district judiciary is an on-going
process. In many states, the process of filling up posts is pursued in
conjunction with the State Public Service Commissions. Many of the delays
are not in the control of the High Courts. Moreover, it is necessary to
provide for the required judge strength in every state district judiciary
so as to facilitate the creation of infrastructure. In several states, the
available infrastructure is inadequate and insufficient to meet even the
existing judge strength. Hence, a scientific assessment of the required
judge strength will form the basis of ensuring that the state governments
put into place the infrastructure required for tackling judicial delays.
21 By an order of this Court dated 29 November 2016, this Court had
permitted the Union government to place on the record the following
information in regard to funds made available by the Fourteenth Finance
Commission for meeting the needs of the state judiciary and the modalities
for disbursement and 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 Rupees 9749
crores :
Pendency Reduction : Rs.858.83 crore
Establishment of Fast Track Courts : Rs.4144.11 crore
Establishment of Family
Courts in districts without
such courts : Rs.541.06 crore
Re-designing existing
court complexes to become
more litigant friendly : Rs.1400 crore
Augmenting technical
support for ICT enabled courts : Rs.479.68 crore
Scanning and Digitalisation
of Case Records of High Courts
and District Courts : Rs.752.50 crore
Enhancing Access to Justice
Support for Law School
based Legal Aid Clinics with
focus on undertrials : Rs.50.50 crore
Organizing Lok Adalats : Rs.93.61 crore
Support for Mediation
/conciliation in ADR centres : Rs.300 crore
Incentives to Mediators
/Concilators : Rs.503.44 crore
(a) Training and capacity
building of judges, public
prosecutors, mediators,
lawyers: Refresher, ongoing : Rs.550 crore
(b) Establishment of
State Judicial Academies
in Manipur, Meghalaya and
Tripura : Rs.75 crore
Total Cost : Rs.9749 crore”
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 Minister of India has addressed a
letter dated 23 April 2015 to the Chief Ministers calling upon them to
allocate funds required for the activities recommended by the Fourteenth
Finance Commission in the state budgets from 2015-2016 to improve the
working of the judicial system and provide speedy justice. Following the
joint conference of Chief Justices of High Courts and Chief Ministers of
States held in April 2015, the Union Minister of Law and Justice addressed
letters to the Chief Justices and Chief Ministers in June 2015 requesting
them to institute a mechanism for regular interaction to resolve
outstanding issues particularly those relating to infrastructure and man-
power needs of the judiciary. It may be noted here that at the Conference
of Chief Justices of High Courts held in April 2016, the following
resolution was adopted :
“Resolved that the following strategy be adopted by the High Courts:
Constitution of a dedicated cell for the utilization of funds. The
composition of the Cell should consist of policy makers, experts in
planning and budgeting, senior judicial officers and persons to be
nominated by the Chief Justice. The Cell shall be assigned the task of:
(a) Preparing perspectives/annual plans and time
lines;
(b) Drawing up budget estimates;
(c) Monitoring and review of the implementation of
each scheme;
(d) Taking up the matter with the State Government to ensure release of
funds.
Submitting a request for funds from the State Government within time for
financial years 2016-17 to 2019-2020;
Ensuring that funds are spent in accordance with the budgetary allocation
and speedy and effective utilization. For this purpose, periodical
meetings and reviews be conducted; and
Monitoring of schemes and outcomes through special on-line portals and ICT
tools. Progress made be reviewed in State Court Management System meetings
and quarterly progress reports be forwarded to the Supreme Court for review
by National Court Management System”.
Thereafter, in the Conference of Chief Justices and Chief Ministers, the
following resolution was adopted :
“With a view to facilitate proper and timely utilization of funds made
available by the 14th Finance Commission to the State judiciaries, it was
resolved that:
Finance Secretaries of each State be associated with the work of the High
Court committees in-charge of monitoring 14th Finance Commission funds;
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;
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.
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 September
2016. The affidavit explains that necessary mechanisms have been set up
under the resolutions of the Conference of Chief Justices and Chief
Ministers and of the Chief Justices respectively.
22 Having regard to the above background, we now proceed to formulate
our directions in the following terms :
Until NCMSC formulates a scientific method for determining the basis for
computing the required judge strength of the district judiciary, the judge
strength shall be computed for each state, in accordance with the interim
approach indicated in the note submitted by the Chairperson, NCMSC;
NCMSC is requested to endeavour the submission of its final report by 31
December 2017;
A copy of the interim report submitted by the Chairperson, NCMSC shall be
forwarded by the Union Ministry of Law and Justice to the Chief Justices of
all the High Courts and Chief Secretaries of all states within one month so
as to enable them to take follow-up action to determine the required judge
strength of the district judiciary based on the NCMSC interim report,
subject to what has been stated in this judgment;
The state governments shall take up with the High Courts concerned the task
of implementing the interim report of the Chairperson, NCMSC (subject to
what has been observed above) and take necessary decisions within a period
of three months from today for enhancing the required judge strength of
each state judiciary accordingly;
The state governments shall cooperate in all respects with the High Courts
in terms of the resolutions passed in the joint conference of Chief
Justices and Chief Ministers in April 2016 with a view to ensuring
expeditious disbursal of funds to the state judiciaries in terms of the
devolution made under the auspices of the Fourteenth Finance Commission;
The High Courts shall take up the issue of creating additional
infrastructure required for meeting the existing sanctioned strength of
their state judiciaries and the enhanced strength in terms of the interim
recommendation of NCMSC;
The final report submitted by NCMSC may be placed for consideration before
the Conference of Chief Justices. The directions in (i) above shall then be
subject to the ultimate decision that is taken on receipt of the final
report; and
A copy of this order shall be made available to the Registrars General of
each High Court and to all Chief Secretaries of the States for appropriate
action.
23 List the proceedings for disposal of the criminal appeals before the
appropriate bench in the third week of July 2017.
…........................................CJI
[T S THAKUR]
............. …...............................J
[Dr D Y CHANDRACHUD]
................................................J
[L NAGESWARA RAO]
New Delhi
January 02, 2017.
-----------------------
[1]
[2] (2002) 4 SCC 247
[3]
[4] (2012) 6 SCC 502
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