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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NOS.254-262     OF     2012   (@ SLP(Crl.) Nos. 1581-1598/2009)

Imtiyaz Ahmad   .....Appellant(s)

- Versus -

State of Uttar Pradesh & Ors. ....Respondent(s)

O     R     D     E     R      

GANGULY,     J  .

Leave granted.

1. Heard learned counsel for the parties,  

including the learned Amicus Curiae.

2. In these appeals, this Court is concerned with  

a case where orders were passed by the High  

Court on several dates after the registration

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of FIR and on stay order being granted,  

investigation, and framing of charges or trial  

thereafter in the matter remained pending in  

the High Court for a long period of time.  The  

stay order dated 9.4.03 and several orders  

dated 29.4.03, 30.4.03, 10.10.03, 7.5.04,  

26.5.05, 19.9.06, 27.9.06, 6.10.06 & 18.12.08  

of the High Court passed thereafter have been  

impugned in these appeals.

3. The questions which crop up in this case are of  

serious magnitude and transcend the immediate  

facts in the appeal and are of great national  

importance.

4. These appeals are directed against a batch of  

interlocutory orders passed by a learned Single  

Judge of Allahabad High Court in Criminal Writ  

Petition No. 1786/2003 pending before the  

learned Judge.

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5. It appears that by order dated 9.4.2003, the  

learned Single Judge admitted the writ petition  

filed by respondent Nos. 2 and 3 herein and  

also stayed the order dated 7.12.2002 passed by  

the Additional Chief Judicial Magistrate,  

Gautam Budh Nagar whereby direction had been  

given for registration of case against the said  

respondents. Thereafter, the matter has been  

listed on various days before the High Court  

but the matter was getting adjourned. As on the  

date of filing of the SLP, the writ petition  

had been kept pending for six years.

6. The SLP came up for hearing before this Court  

on 8.1.2010. This Court was very greatly  

concerned about the manner in which criminal  

investigation and trial have been stayed by the  

High court and also being aware of the fact  

that similar cases are happening in several  

High Courts in India wanted a serious

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consideration of the issues and appointed Mr.  

Gopal Subramanium, Senior Advocate (at that  

time Solicitor General of India) to assist the  

Court as Amicus Curiae.    

7. The Court also issued a direction dated  

8.1.2010 to the Registrars General/Registrars  

of all the High Courts in the country to  

furnish a report containing statistics of cases  

pending in the respective High Courts in which  

the proceedings have been stayed at the stage  

of registration of FIR, investigation, framing  

of charges and/or trial in exercise of power  

under Article 226 of the Constitution or  

Sections 482 and/or 397 of the Code of Criminal  

Procedure. The report was to deal with the  

following types of cases:

a)murder,  b)rape,  c)kidnapping, and

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d)dacoity.

8. In response to the above direction, most of the  

High Courts submitted their reports. Two High  

Courts, Sikkim and Himachal Pradesh, reported  

that they do not have any such pending criminal  

cases of the types mentioned above. The reports  

submitted by different High Courts disclosed  

that altogether there were large number of such  

cases pending. Such pendency of cases was  

analyzed by the Amicus Curiae with the valuable  

assistance of Dr. Pronab Sen, Secretary and Dr.  

G.C. Manna, Deputy Director in the Ministry of  

Statistics and Programme Implementation.

9. The important findings arrived at after the  

analysis of the data are as under:

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a)Out of the four categories of cases, murder  

cases were found to be the most common type,  

accounting for 45% of all the cases.

b)About one-fourth of all the cases pending are  

for 2 to 4 years from the date of stay order.  

Nearly 8% of the cases are, however, pending  

for 6 years or more.

c)In most of the cases in different High  

Courts, the duration for which the case is  

pending varies from 1 to 4 years. It is seen  

that 34 out of 201 cases in Patna High Court  

and 33 out of 653 cases in Allahabad High  

Court are pending for 8 years or more.

10. About total pendency, in the report dated  

12.4.10 filed by the Amicus, the following  

position emerges. Table 1 below shows the total  

number of cases pending in each High Court and  

the percentage share of the total pendency.

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TABLE 1: TOTAL PENDENCY

High Court Number of criminal cases by type % share  of High  Court in  total  number  of cases

(1)

Murder

(2)

Rape

(3)

Kidnap ping

(4)

Dacoity

(5)

All

(6) (7)

Allahabad 144 100 341 68 653 28.6

Andhra  Pradesh

46 8 2 4 60 2.6

Bihar 92 36 42 31 201 8.8

Bombay 14 5 4 6 29 1.3

Chhattisgarh 4 0 0 1 5 0.2

Delhi 4 5 2 0 11 0.5

Gauhati 6 5 2 8 21 0.9

Gujarat 56 9 34 16 115 5.0

J & K 4 4 6 0 14 0.6

Jharkhand 18 11 12 0 41 1.8

Karnataka 11 4 4 3 22 1.0

Kerala 12 2 5 1 20 0.9

Kolkata 431 209 21 48 709 31.1

Madhya  Pradesh

10 14 1 5 30 1.3

Madras 0 1 2 0 3 0.1

Orissa 111 40 26 10 187 8.2

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Punjab &  Haryana

17 9 5 1 32 1.4

Rajasthan 23 11 17 5 56 2.5

Uttarakhand 18 19 24 10 71 3.1

All 1021 492 550 217 2280 100

11. It may be seen that the Hon’ble Calcutta High  

Court has the highest percentage share (31.1%)  

in total number of cases. It is followed by the  

Hon’ble High Courts of Allahabad (28.6%), Patna  

(8.8%) and Orissa (8.2%). Thus, these four High  

Courts taken together account for 76.9% of all  

the pendency.

12. Table 2 gives the distribution of all cases and  

the period for which the cases are pending in  

each High Court.

TABLE 2: DURATION OF PENDENCY

High Court Duration for which pending

N il

<6 m

6m– 1y

1- 2y

2- 4y

4- 6y

6- 8y

>8y All

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(1) ( 2 )

(3) (4) (5) (6) (7) (8) (9) (10)

Allahabad 1 38 126 19 0

158 90 17 33 653

Andhra  Pradesh

0 16 16 17 11 0 0 0 60

Bihar 7 0

14 11 33 27 8 4 34 201

Bombay 0 1 6 8 6 3 2 3 29

Chhattisgarh 0 1 0 0 0 1 2 1 5

Delhi 0 1 2 4 0 3 1 0 11

Gauhati 0 3 5 4 3 0 6 0 21

Gujarat 0 8 6 34 46 20 1 0 115

J & K 0 5 2 3 4 0 0 0 14

Jharkhand 0 7 4 2 9 3 9 7 41

Karnataka 9 4 3 5 0 1 0 0 22

Kerala 0 1 0 1 5 13 0 0 20

Kolkata 7 40 104 13 5

209 17 6

38 0 709

Madhya  Pradesh

0 2 6 2 12 6 1 1 30

Madras 0 1 0 1 1 0 0 0 3

Orissa 0 9 37 52 60 18 4 7 187

Punjab &  Haryana

0 10 9 4 6 1 1 1 32

Rajasthan 0 8 8 11 22 6 0 1 56

Uttarakhand 0 7 10 9 21 20 3 1 71

All 8 7

176 355 51 5

600 36 9

89 89 2280

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13. The category wise distribution is as follows:

TABLE 3: CATEGORYWISE DISTRIBUTION

Type of  Case  

Duration for which pending

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)

Nil <6 m

6m– 1y

1- 2y

2- 4y

4- 6y

6- 8y

>8 y

All

Murder 25 65 132 18 2

30 9

211 43 54 102 1

Rape 25 46 83 11 1

12 7

68 21 11 492

Kidnappin g

16 51 120 15 6

11 6

67 12 12 550

Dacoity 21 14 20 66 48 23 13 12 217

All 87 17 6

355 51 5

60 0

369 89 89 228 0

14. It is clear from the above that out of the four  

categories, murder cases account for nearly 45%  

of the total pendency. This share increases if  

only the oldest pending cases are considered.  

Out of the 178 cases pending for 6 years or  

more, 97 are murder cases –  i.e. a share of  

almost 55%.

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15. In that report indications were also given  

about the frequency of listing of cases by  

different High Courts.

16. On the hypothesis that if a case is listed  

frequently, it indicated that the matter was  

being actively considered by the High court,  

data was also called for on the number of times  

the case was listed after the grant of the stay  

order.

17. The following table gives the average number of  

times a matter was listed for hearing after the  

grant of stay order.

High Court Total number of cases Average number of times the  matter was listed per case

Allahabad 653 4.0

Andhra Pradesh 60 3.4

Bihar 201 21.7

Bombay 29 5.1

Chhattisgarh 5 4.3

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Delhi 11 12.2

Gauhati 21 17.0

Gujarat 115 13.4

J & K 14 7.7

Jharkhand 41 3.5

Karnataka 22 5.0

Kerala 20 11.4

Kolkata 709 N/A

Madhya Pradesh 30 3.0

Madras 3 2.3

Orissa 187 5.8

Punjab &  Haryana

32 8.8

Rajasthan 56 7.9

Uttarakhand 71 3.1

All 2280 6.1

18. However, the above analysis was not pursued any  

further, since there was no way of ascertaining  

which of the hearings were effective and which  

were non-effective. Hence, it could be  

misleading to draw any conclusions from this  

data.

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19. On the basis of the aforesaid data it is clear  

that problems which the administration of  

justice faces today is of serious dimensions.  

Pendency is merely a localized problem, in the  

sense that it affects some High Courts far more  

than others. As seen above, just four High  

Courts in this country amount for 76.9% of the  

pendency. This may well be because of various  

social, political and economic factors, which  

are beyond the scope of the current enquiry by  

this Court.

20. It is a matter of serious concern that 41% of  

the cases have been pending for 2-4 years, and  

8% (approximately 1 out of every 12 cases) have  

been pending for more than six years.

21. After considering the first report by the  

Amicus, this Court passed the following order  

on 3.5.2010:-

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“The suggestions given by the Solicitor  General have been considered. But before  passing any order, we deem it proper to  request learned counsel representing Allahabad  High Court to place before the Court total  number of cases in which power under Article  226 of the Constitution of India or Section  482 of the Code of Criminal Procedure has been  exercised and the proceedings of the criminal  case have been stayed at the stage of  investigation or trial.”  

22. Pursuant to the above order, the Allahabad High  

Court furnished information of a total of  

10,541 cases where power under Article 226 of  

the Constitution of India or Section 482 of the  

Code of Criminal Procedure has been exercised  

and the proceedings of the criminal case have  

been stayed at the stage of investigation or  

trial.  Pursuant to a request of the Amicus  

Curiae, the Allahabad High Court also furnished  

the above data in electronic form.   

23. The data was then analyzed by the Amicus Curiae  

with the help of Dr. T.C.A. Anant (the current  

Secretary) and Dr. G.C. Manna, Deputy Director

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General in the Ministry of Statistics and  

Programme Implementation.  Then a second report  

was prepared and placed for the consideration  

of this Court.

24. Important findings from the second report are:-

“Out of the data for 10,541 cases received, data  

for 10,527 cases could be meaningfully analysed (as  

the rest had some missing elements). The important  

findings in respect of these are:  

(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.

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(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. (If  

"appearance" and "summons" are considered  

interchangeable, then they would collectively  

account for the maximum of stay orders.”

25. Table below gives the duration for which cases  

have been pending since the date of the stay  

order:

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No. of years  passed

Number of  cases

Percentage of cases

0 763 7.2

1 1250 11.9

2 1272 12.1

3 1024 9.7

4-5 2003 19.0

6-7 1125 10.7

8-10 920 8.7

11-15 577 5.5

16-20 648 6.2

21-25 631 6.0

More than 25 314 3.0

All 10527 100.0

26. A perusal of that information reveals that  

shockingly thirty-two cases have been pending  

for thirty years or more.  

27. The data was also analyzed to ascertain the  

stage of the proceedings at which stay order  

was granted.  Table below may be seen:-

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Stage at which  proceeding  

stayed

Number of cases Percentage of cases

Chargesheet 3365 32.0

Appearance 2016 19.2

Summons 1951 18.5

“Further  proceedings  stayed”

563 5.3

Before charge 380 3.6

Trial 330 3.1

Evidence 323 3.1

Complaints 315 3.0

Cognizance 245 2.3

Disposal 237 2.3

Issue of notice 178 1.7

Others 624 5.9

All 10527 100.0

28. As stated in the First Report and Second  

Report, the fact-finding exercise directed by  

this court has revealed a problem of serious  

concern.  It is respectfully submitted that it  

is simply unacceptable for a case to remain  

pending for three decades under any

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circumstances, and more so when the pendency is  

a consequence of the stay proceedings granted  

by the High Court.

29. Thereafter, vide Order dated 26.08.2010, this  

Court was of the view that the existing  

infrastructure in the High Court’s and District  

Court’s must be improved and had directed that  

a comprehensive exercise should be undertaken  

to prepare the system in which all the cases  

instituted in the Court are listed for hearing  

without undue delay and some arrangement be  

made for monitoring of the listing and disposal  

of the cases. As a pilot project, the system is  

to be first implemented in the Allahabad High  

Court.  

30. Thereafter, meetings were held between the  

officers of NIC, the Ministry of Statistics,  

the Allahabad High Court and the Amicus Curiae

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and efforts were made to develop the  

comprehensive system that the Court has  

directed. Another Report was filed by the  

Amicus Curiae setting out the steps taken by  

the Allahabad High Court, the Central  

Government and also certain suggestions given  

by Dr. G.C. Manna, Director General, Ministry  

of Statistics, who had been requested to visit  

the High Court to interact with the officials  

there to see how a better system of listing and  

tracking cases could be developed.  

31. Thereafter, vide Orders dated 14.07.2011 and  

17.08.2011, this Court again called for status  

reports from all the High Courts as to what  

steps had been taken specifically in the  

context of this case, in order to expeditiously  

dispose of matters where proceedings are stayed  

at the stage of registration of FIR,  

investigation, framing of charges or trial.

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Status reports were furnished by some of the  

High Courts and reports from other High Courts  

were awaited.  

32. Then, vide Order dated 29.09.2011, this Court  

observed that considering the larger issues  

which are involved in this case which virtually  

have a direct impact on administration of  

justice, it was fit and proper to implead the  

Central Government in this proceeding.  

33. It is submitted that the issues being  

considered in this case have far reaching  

implications for maintaining of rule of law.  

Where investigation/trial is stayed for a long  

time, even if the stay is ultimately vacated,  

the subsequent investigation/trial may not be  

very fruitful for the simple reason, that  

evidence may no longer be available. Witnesses  

may not be able to recall the events properly,

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and some may have moved away or even died. Even  

the parties to the litigation may not survive.  

Unduly long delay has the effect of bringing  

about blatant violation of the rule of law and  

adverse impact on the common man’s access to  

justice.  A person’s access to justice is a  

guaranteed fundamental right under the  

Constitution and particularly Article 21.  

Denial of this right undermines public  

confidence in the justice delivery system and  

incentivises people to look for short-cuts and  

other fora where they feel that justice will be  

done quicker.  In the long run, this also  

weakens the justice delivery system and poses a  

threat to Rule of Law.   

34. It may not be out of place to highlight that  

access to justice must not be understood in a  

purely quantitative dimension. Access to  

justice in an egalitarian democracy must be

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understood to mean qualitative access to  

justice as well. Access to justice is,  

therefore, much more than improving an  

individual's access to courts, or guaranteeing  

representation. It must be defined in terms of  

ensuring that legal and judicial outcomes are  

just and equitable (See United Nations  

Development Programme, Access to Justice -  

Practice Note (2004)].

35. The present case discloses the need to  

reiterate that 'Access to Justice' is vital for  

the Rule of Law, which by implication includes  

the right of access to an Independent  

Judiciary. It is submitted that the stay of  

investigation or trial for significant periods  

of time runs counter to the principle of Rule  

of Law, wherein the rights and aspirations of  

citizens are intertwined with expeditious  

conclusion of matters. It is further submitted

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that delay in conclusion of criminal matters  

signifies a restriction on the right of access  

to justice itself, thus amounting to a  

violation of the citizens' rights under the  

Constitution, in particular under Article 21.  

36. In a very important address to the Virginia Bar  

Association in 1908, William H. Taft observed  

that one reason for delay in the lower courts  

is the disposition of judges to wait an undue  

length of time in the writing of their opinions  

or judgments. [See William H. Taft, The Delays  

of the Law, Yale Law Journal. Vo1.18. No.1  

(Nov., 1908), pp.28-39)]. The Judge should  

deliver the judgment immediately upon the close  

of the argument. It is almost of as much  

importance that the court of first instance  

should decide promptly as that it should decide  

right. It should be noted that everything which  

tends to prolong or delay litigation between

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individuals, or between individuals and State  

or Corporation, is a great advantage for that  

litigant who has the longer purse. The man  

whose rights are involved in the decision of  

the legal proceeding is much prejudiced in a  

fight through the courts, if his opponent is  

able, by reason of his means, to prolong the  

litigation and keep him for years out of what  

really belongs to him.  

37. Dispatch in the decision making process by  

Court is one of the great expectations of the  

common man from the judiciary. A sense of  

confidence in the Courts is essential to  

maintain a fabric of order and liberty for a  

free people. Delay in disposal of cases would  

destroy that confidence and do incalculable  

damage to the society; that people would come  

to believe that inefficiency and delay will  

drain even a just judgment of its value; that

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people who had long been exploited in the small  

transactions of daily life come to believe that  

courts cannot vindicate their legal rights  

against fraud and overreaching; that people  

would come to believe that the law - in the  

larger sense cannot fulfil its primary function  

to protect them and their families in their  

homes, at their work place and on the public  

streets. [See Belekar Memorial Lecture Series,  

organized by High Court Bar Association,  

Nagpur.  Lecture delivered on August 31, 2002]

38. Merely widening the access to justice is not  

enough to secure redress to the weaker sections  

of the community. Post Independence, it was  

evident that litigation in India was getting  

costlier and there was agonizing delay in the  

process. After the adoption of the Constitution  

and creation of a Welfare State, the urgency of  

some structural changes in the justice delivery

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system was obviously a major requirement. In  

the 14th Report of the Law Commission under the  

Chairmanship of the first Attorney General for  

India, Shri M.C. Setalvad, it was observed as  

under:-

“In so far as a person is unable to  obtain access to a court of law for  having his wrongs redressed…. Justice  becomes unequal and laws which are  meant for his protection fail in  their purpose.”

39. In a very important discourse Roscoe Pound  

argued that by responding to the doctrine of  

social justice, the concept of justice has  

advanced through various stages.  [See Roscoe  

Pound, Social Justice and Legal Justice  

(Address delivered to the Allegheny County Bar  

Association, April 5, 1912].  At the first  

stage justice was equated with dispute  

settlement.  At the second stage justice was  

equated with maintenance of harmony and order.  

In the third stage, justice was equated with

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individual freedom. Pound argued that a fourth  

stage had developed in society, but had not yet  

been fully reflected in the courts, and that  

was what Pound called 'social justice'. That is  

the ideal form of justice where the needs of  

the people are satisfied, apart from ensuring  

that they have freedom.  

40. Despite complicated social realities, it is  

submitted that Rule of Law, independence of the  

judiciary and access to justice are  

conceptually interwoven. All the three bring to  

bear upon the quality of aspirations which are  

guaranteed under our Constitution. In order to  

fulfil the aspiration, it is important that the  

system must be a successful legal and judicial  

system. This would involve improvement of  

better techniques to manage courts more  

efficiently, cutting down costs and duration of  

proceedings and to ensure that there is no

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corruption in the judiciary and the  

establishment of the judiciary and would also  

require regular judicial training and updating.  

41. The memorable words of Lord Devlin (as quoted  

by D.M. Dharmadhikari, J.) are pertinent to  

note:

“... The prestige of the judiciary and  their reputation for stark  impartiality is not at the disposal of  any government; it is an asset that  belongs to the whole nation ... "  

[See Justice D.M. Dharmadhikari,  Nature of Judicial Process, (2002) 6  SCC (Jour) 1.

42. Under the principle of the Rule of Law,  

adequate protection of the law must be given to  

all persons and to give meaning to it, there  

must exist an unimpeded right of access to  

justice. In the 'Words of Lord Bingham:  

“It would seem to be an obvious  implication of the principle that  everyone is bound by and entitled to  the protection of law that people

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should be able, in the last resort, to  go to court to have their civil rights  and claims determined. An unenforceable  right or claim is a thing of little  value to anyone."   

    [See Tom Bingham, The Rule of Law, p. 85]

43. The right of access to justice has been  

recognised as one of the fundamental and basic  

human rights in various international covenants  

and charters. [See Article 14(3) of the  

International Covenant on Civil and Political  

Rights (ICCPR)]  

44. The right of access to justice is also  

recognised under Article 67 of the Statute of  

the International Criminal Court (Rome  

Statute).  

45. In the context of the European Union, Article  

47 of the European Charter on Fundamental

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Rights provides for the right to an effective  

remedy and to fair trial. With respect to the  

Council of Europe, the European Convention on  

Human Rights and Fundamental Freedoms, Article  

6 significantly protects this right to access  

justice.

46. The European Court of Human Rights has held  

that a broader interpretation must be given to  

Article 6(1) of the ECHR laying emphasis on  

'right to a fair administration of justice' in  

the case of Delcourt v. Belgium.  “…In a democratic society within the meaning  of the Convention, the right to a fair  administration of justice hold such a  prominent place that a restrictive  interpretation of Article 6(1) would not  correspond to the aim and purpose of that  provision."   

[See [1970] ECHR 1.]

47. Article 8 of the Universal Declaration of Human  

Rights provides that:  

“Everyone has the right to an effective  remedy by the competent national tribunals

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for acts violating the fundamental rights  granted him by the constitution or by law."  

48. Article 16 of the Principles of Freedom from  

Arbitrary Arrest and Detention provides that:  

“To ensure that no person shall be  denied the possibility of obtaining  provisional release on account of lack  of means, other forms of provisional  release than upon financial security  shall be provided.”

49. The principle of 'Access to Justice or Courts'  

is recognized as a right in South Africa’s  

Constitution as well:  

“Access to Courts.  34. Everyone has the right to have any  dispute that can be resolved by the  application of law decided in a fair  public hearing before a court or, where  appropriate, another independent and  impartial tribunal or forum."

50. The learned Amicus urged that having regard to  

the paramount importance of the right to  

access, the Court which he argues is a basic  

fundamental right specially the Central  

Government and the State Governments have a

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duty to ensure speedy disposal of cases for  

proper maintenance of rule of law and for  

sustaining peoples’  faith in the judicial  

system.  He further argued that with the  

present infrastructure it is not possible for  

Courts, whether it is District Courts or the  

State High Courts or this Court to effectively  

dispose of cases by just and fair orders within  

a reasonable timeframe.  The learned Amicus  

also urged that the problem is huge and the  

considerations are momentous.  To understand  

the magnitude of the problem, the Government  

must appoint a permanent commission to make  

continuous recommendation on measures which are  

necessary to streamline the existing justice  

delivery system.  In support of his submission,  

he referred to the Report of Lord Woolf  

submitted to Lord Chancellor in England:

“…It will not only assist in  streamlining and improving our existing  systems and process; it is also likely,  in due course, itself to be a catalyst  for radical change as well…”

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[Final Report to the Lord Chancellor  on the Civil Justice System in England  and Wales (Lord Woolf’s Report), 1996,  Chapter 21, para 1]

51. The learned Amicus submitted that this huge  

pendency of cases operates as a burden on the  

mindset of a Judge.  He submitted rightly that  

the inner charter of the judge is constantly  

under a pressure to somehow decide the case and  

the quality of justice suffers.  Therefore,  

according to him, it is the constitutional duty  

of both the Central Government and the State  

Government to provide adequate infrastructure  

to the judiciary and only an independent  

commission which functions on a permanent basis  

can assess the necessity of the required  

infrastructure and make recommendations to the  

Government for providing necessary steps which  

the Government should take to make the  

Constitutional promise of justice a reality.  

The learned Amicus developed his argument by  

referring to various decisions of this Court

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and also various provisions of the  

Constitution.  He further submitted that the  

plea of the Government that in view of  

financial crunch it cannot provide the  

necessary infrastructure cannot be countenanced  

by this Court and in support of the said  

submission he referred to the decision of this  

Court in the case of R.     Ramachandra     Rav     v.  State     of     Karnataka  , reported in (2002) 4 SCC  578.  The relevant observations made in the  

said judgment are as follows:-

“…The law does not permit any  government to deprive its citizens of  constitutional rights on a plea of  poverty or administrative inability…”

52. As the Central Government has been impleaded in  

this proceeding it was represented by Mr. Harin  

P. Raval, the learned ASG.

53. The learned ASG very fairly submitted that the  

questions debated in this case, by and large,

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are not adversarial. The learned ASG submitted  

that the Government also accepts that right of  

access to Court is a fundamental and  

constitutional right.  The learned ASG also  

accepted that if right to access justice is  

denied to the citizens then most of the rights  

given under the Constitution virtually become a  

rope of sand.  The learned ASG submitted that  

the Government is aware of the importance of  

these rights and are taking several steps to  

make these rights vibrant. In the counter  

affidavit, which has been filed by the Under  

Secretary, Ministry of Law and Justice dated  

9.1.2012 several steps which have been taken by  

the Government to ensure speedy justice and to  

reduce delay are as follows:-

 I. Appointment of Court Managers in High Courts  

and Sub-ordinate Courts.  

II. Vision Statement and Action Plan adopted by  the National Consultation for Strengthening  the Judiciary towards Reducing Pendency and  Delays.

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III. To prepare National Arrear Grid  

IV. National Mission for Justice Delivery and Legal  Reforms.  

V. National and State Legal Service Authorities  constituted under Legal Service Authorities  Act, 1987.  

VI. National Court Management System (as proposed by  Hon’ble Chief Justice of India).

54. The learned ASG referred to the agenda notes  

and the minutes of the meeting of the Advisory  

Council of the National Commission for Justice  

Delivery and Legal Reforms.  He submitted that  

the National Mission spanning from 2011 to 2016  

would focus on two major goals envisaged in the  

Vision document, namely, (i) increasing access  

by reducing delays and arrears in the system,  

and (ii) enhancing accountability through  

structural changes and by setting performance  

standards and capacities.  

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55. It was also pointed out that the tentative  

action plan covers five strategic initiatives  

and one of them is improving infrastructure of  

the District and Subordinate Courts and  

creation of special and additional courts like  

morning and evening courts etc.  He referred to  

various pages of the Meeting of the Advisory  

Council of the National Mission held on  

18.10.2011 in Vigyan Bhawan, New Delhi to show  

that the Government is aware of the problem and  

is seeking to address the same.  However, in  

the course of his arguments the learned ASG  

took the leave of this Court and filed another  

affidavit dated 18.1.2012 by Dr. S.S. Chahar,  

Joint Secretary and Legal Advisor, Ministry of  

Law and Justice.  

56. By filing the said affidavit the learned ASG  

wanted to urge before this Court that even  

though the Government is aware of the urgency  

of the problem and the immediate necessity of

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addressing it, Government is not willing to  

accept the suggestion of the learned Amicus for  

setting-up of a permanent commission for the  purposes suggested by the learned Amicus.

57. The learned ASG on the other hand  

submitted in view of the stand taken  

by the Central Government in its  

affidavit dated 18.1.2012 that the  

existing terms of reference of the  

19th Law Commission are wide enough to  

include within its ambit the question  

of setting up additional courts for  

the purpose of tackling the arrears  

so that access to justice is ensured.  

In this connection, he referred to  

the terms of reference of the 19th Law  

Commission.  The said terms of  

reference are as follows:-

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“A. Review/Repeal of obsolete laws:

i.  To identify laws which are no longer  needed or relevant and can be immediately  repealed.

ii. To identify laws which are in harmony  with the existing climate of economic  liberalization which need no change.

iii. To identify laws which require changes  or amendments and to make suggestions for  their amendment.

iv.  To consider in a wider perspective the  suggestions for revision/amendment given by  Expert Groups in various  Ministries/Departments with a view to  coordinating and harmonizing them.

v.  To consider references made to it by  Ministries/Departments in respect of  legislation having bearing on the working of  more than one Ministry/Department.

vi. To suggest suitable measures for quick  redressal of citizens grievances, in the  field of law.   B. Law and Poverty   i.   To examine the Law which affect the  poor and carry out post-audit for socio- economic legislation.

ii.   To take all such measures as may be  necessary to harness law and the legal  process in the service of the poor.   C. To keep under review the system of  judicial administration to ensure that it is

41

responsive to the reasonable demands of the  times and in particular to secure: -   i.   Elimination of delays, speedy clearance  of arrears and reduction in costs so as to  secure quick and economical disposal of  cases without affecting the cardinal  principle that decisions should be just and  fair.

ii.   Simplification of procedure to reduce  and eliminate technicalities and devices for  delay so that it operates not as an end in  itself but as a means of achieving justice.

iii. Improvement of standards of all  concerned with the administration of  justice.   

D.  To examine the existing laws in the  light of Directive Principles of State  Policy and to suggest ways of improvement  and reform and also to suggest such  legislation as might be necessary to  implement the Directive Principles and to  attain the objective set out in the Preamble  to the Constitution.

E.  To examine the existing laws with a view  to promoting gender equality and suggesting  amendments thereto.           F.  To revise the Central Acts of General  Importance so as to simplify them and to  remove anomalies, ambiguities and  inequities.   G. To recommend to the Government  measure for bringing the statute book up-to- date by repealing obsolete laws and

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enactments or parts thereof which have  outlived their utility.

H. To consider and to convey to the  Government its views on any subject relating  to law and judicial administration that may  be referred to it by the Government through  Ministry of Law and Justice (Department of  Legal Affairs).

I. To consider the requests for providing  research to any foreign countries as may be  referred to it by the Government through  Ministry of Law and Justice (Department of  Legal Affairs).

J.  To examine the impact of globalization  on food security, unemployment and recommend  measures for the protection of the interests  of the marginalized.

The Commission shall devote, its time bound  attention to all issues relating to item (A)  of the terms of reference as indicated  above, viz., review/repeal of obsolete laws  and shall make its recommendations to  Government for repeal of obsolete laws and  for appropriate amendments in others as may  be found necessary ON TOP PRIORITY basis.  

The Commission shall submit its reports in  Hindi and English with sufficient number of  copies for being placed on Tables of both  houses of Parliament. The Law Commission  shall also make its reports available  through website or otherwise as soon as  reports are submitted to the Government.  

Various Law Commissions have given about 234  Reports so far. Many of them are made

43

available on the website of Law Commission.  Since many of the Reports are voluminous it  will be difficult for researchers to read  entire Report online. To facilitate the  researchers to choose the topics of their  area and to create awareness amongst Judges,  Lawyers, Law Teachers and Students on the  various recommendations of the Law  Commission, a brief summary of all the  Reports of the Law Commission shall be made  available by the Law Commission, online.”  

58. The learned ASG submitted that in view of  

Clause ‘H’ of the terms of reference of the 19th  

Law Commission, the present Law Commission can  

go into the question of making a proper  

research and a scientific and empirical study  

to assess the requirement of setting up  

additional courts and making available  

additional infrastructures for ensuring free  

access to court and speedier disposal of cases.  

The learned ASG submitted that the pendency of  

cases cannot be tackled by only setting up  

additional courts. Various other factors are  

also involved including the cooperation of the

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members of the Bar, the quality of legal  

education, policy of legislation, recruitment  

of quality manpower and such other issues which  

the Law Commission should urgently address and  

make recommendations on.   

59. The learned ASG also submitted that having  

regard to the provision of Article 235 of the  

Constitution the control over district and  

subordinate courts rests with the respective  

High Courts in each State. In assessing the  

requirement of setting up of additional courts  

and creating additional benches, the opinion of  

the High Court and the State Government have to  

be ascertained including the question of budget  

allocation to each State Government. The  

learned ASG also submitted that since the  

Government is keenly interested to address  

these problems it is open to any suggestion. It  

was submitted that any direction from this

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Court will help the Government and the Law  

Commission to tackle this problem in a very  

effective way.

60. The Court, upon a detailed and very anxious  

consideration of the aforesaid issues and  

specially huge pendency of arrears in different  

High Courts and considering the stand of the  

Central Government in its affidavit dated  

18.1.2012 is giving the following directions.

I. Certain directions are given to the High  

Courts for better maintenance of the Rule of Law  

and better administration of justice:

While analyzing the data in aggregated form, this  

Court cannot overlook the most important factor  

in the administration of justice. The authority  

of the High Court to order stay of investigation  

pursuant to lodging of FIR, or trial in deserving  

cases is unquestionable. But this Court is of the

46

view that the exercise of this authority carries  

with it the responsibility to expeditiously  

dispose of the case. The power to grant stay of  

investigation and trial is a very extraordinary  

power given to High Courts and the same power is  

to be exercised sparingly only to prevent an  

abuse of the process and to promote the ends of  

justice. It is therefore clear that:

(i) such an extraordinary power has to be  

exercised with due caution and circumspection.

(ii) Once such a power is exercised, High Court  

should not lose sight of the case where it has  

exercised its extraordinary power of staying  

investigation and trial.  

(iii) High Court should make it a point of  

finally disposing of such proceedings as early as  

possible but preferably within six months from  

the date the stay order is issued.

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61. It is true that this Court has no power of  

superintendence over High Court as the High  

Court has over District Courts under Article  

227 of the Constitution. Like this Court, High  

Court is equally a Superior Court of Record  

with plenary jurisdiction. Under our  

Constitution High Court is not a Court  

subordinate to this Court. This Court, however,  

enjoys appellate powers over High Court as also  

some other incidental powers. But as the last  

court and in exercise of this Court’s power to  

do complete justice which includes within it  

the power to improve the administration of  

justice in public interest, this Court gives  

the aforesaid guidelines for sustaining common  

man’s faith in the rule of law and the justice  

delivery system, both being inextricably  

linked.

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II. Certain directions are also given to the Law  

Commission which are as follows:

a)Since the Law Commission itself is seized  

with the problem and is making investigation  

having regard to its terms of reference  

specially clause ‘H’, thereof, this Court  

requests the Law Commission, which is headed  

by a distinguished retired judge of this  

Court, to undertake an enquiry and submit its  

recommendation in relation to the following  

matters:-

I. Keeping in view that timely justice is an  important facet to access to justice, the  immediate measures that need to be taken  by way of creation of additional courts  and other allied matters (including a  rational and scientific definition of  "arrears" and delay, of which continued  notice needs to be taken), to help in  elimination of delays, speedy clearance  of arrears and reduction in costs. It is  trite to add that the qualitative  component of justice must not be lowered  or compromised; and

II. Specific recommendations whenever  considered necessary on the above aspects  in relation to each State be made as a  product of consultative processes

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involving the High Courts and other stake  holders, including the Bar.  

b)In doing so, the Commission may take such  

assistance from the Central Government and  

the State Governments as it thinks fit and  

proper.

c)Accordingly, it is directed that on the  

Commission’s request for assistance both the  

Central Government and the State Governments  

shall render all possible assistance to the  

Commission to enable it to discharge its  

functions, as directed by this Court in its  

order. The Commission shall at the discretion  

of its Chairman be free to co-opt purposes of  

the enquiry to be undertaken by it. Such  

legal & technical, experts as may be  

considered necessary by it for an effective  

and early completion of the assignment hereby  

made.

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d)The Commission is requested to submit its  

report within six months from the date of  

this order.

e)Such recommendations be sent to the Registrar  

General of this Court in sealed covers.  

62. The matter may appear before the appropriate  

Bench after being nominated by the Hon’ble the  

Chief Justice on the 7th August, 2012 for  

further consideration by this Court of the  

recommendations by the Law Commission and if  

necessary for further directions to be passed  

in these appeals.  

......................J. (ASOK KUMAR GANGULY)

...................J. New Delhi (T.S. THAKUR) February 1, 2012

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REPORTABLE- 62/2012               SECTION-II

            SUPREME COURT OF INDIA  

         No. F. 3/Ed. B. J./17/2012           New Delhi.

            Dated: 03.03.2012

CORRIGENDUM IN

CRIMINAL APPEAL NO(s). 254-262 of 2012 (Judgment dated FEBRUARY 01, 2012)

Imtiyaz Ahamd ....Appellant

Versus

State of Uttar Pradesh & Ors. ….Respondents

BRANCH OFFICER        EDITORIAL BRANCH

PARA FOR READ

34 inequitable equitable