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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.

2This 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

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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 :  

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“(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

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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

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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 India1 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

1

(2002) 4 SCC 247

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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  India2 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

2

(2012) 6 SCC 502

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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 Opening Balance  

Institution Disposal Pendency Cases more than 5 Yrs Old  

Criminal  Cases  more than  5 Yrs Old

Sanctioned Strength

Working Strength

Vacancy

2015 2014 2013

2,65,09,688 2,68,39,293 2,69,07,252

1,90,44,877 1,92,81,971 1,86,70,907

1,83,78,256 1,93,28,283 1,87,37,745

2,71,76,029 2,64,88,408 2,68,38,861

62,01,794 64,29,011 59,80,700

43,19,693 44,13,011 41,80,216

20,558 20,174 19,526

16,176 15,585 15,128

4,382 4,589 4,398

Based on its  analysis  of  the figures for  institution,  disposal  and pendency of

cases, the Report concludes thus :   

“The  2013-2015  statistics  show  that  the  judicial system is able to tackle the flow of fresh cases.  In 2013,  the  institution  was  1.86  crore  with  the disposal of 1.87 crore cases. In 2014 the institution stood  at  1.92  crore  and  disposal  at  1.93  crore cases and in 2015 the figure of institution was 1.90 crore while disposal was 1.83 crore.  Over the last 3 years period, the pendency has remained at 2.68 crores,  2.64  crores,  and  2.74  crore  cases respectively. In contrast to these figures, the Indian

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subordinate  judiciary  has  a  sanctioned  judicial workforce of merely 20,558 officers and a working strength of 16,176 officers.  Keeping these figures in mind, it is simple arithmetic to conclude that the existing judicial  officers are not sufficient to keep pace with the existing situation”.

Analysing the data from the National Crime Records Bureau, the report notes

that  the  present  strength  of  judicial  officers  is  able  to  complete  trial  in

approximately thirteen per cent of cases brought for trial under the Indian Penal

Code during each year.  The ratio of cases brought for trial to the number of

cases in which trial is completed stands close to the figure of seven over the past

five years.

10 During the course of the hearing, the Union Government has fairly dealt

with  the  issues  which  have  been  debated  in  the  case  in  a  non-adversarial

manner, accepting that access to justice is a constitutional right.  Initially, in the

counter affidavit on behalf of the Union Ministry of Law and Justice, reference

was made to the measures which were adopted by the Government to secure

speedy justice and reduce delays.  Among them were the following :

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. III. Preparation of National Arrears Grid. IV. National  Mission  for  Justice  Delivery  and  Legal

Reforms.

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V. National  and  State  Legal  Service  Authorities

constituted under Legal Service Authorities Act, 1987. VI. National Court Management System (as proposed by

the Chief Justice of India).

The terms of reference of the 19th Law Commission (adverted to by the Union

government in its affidavit dated 18 January 2012) were broad enough to include

consideration of the steps necessary for tackling judicial arrears. Clause (h) of

the terms of reference was :

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

Hence,  the  Union  Government  urged  that  the  Law  Commission  could  be

requested to address on the basis of a scientific study, the issue of setting up

additional courts and providing additional infrastructure for ensuring access to

justice and speedy disposal of cases. The Law Commission was requested by

the order of this Court dated 1 February 2012 to inquire into the matter and to

endeavour to submit its report within six months. Three interim progress reports

were received from the Law Commission. By an order dated 5 July 2013 this

Court noted that the fourth and final progress report had also been received.  On

1  May  2014,  this  Court  recorded  the  receipt  of  the  final  report  and

recommendations of the Law Commission and sought a response of the states to

the report  including on the “rate of disposal”  method proposed as a basis for

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determining vacancies required for – (i) clearance of arrears in different states;

and (ii)  for breakeven between institution and disposal  of cases in the future.

Subsequently,  by  an  order  dated  20  August  2014,  the  National  Court

Management  Systems  Committee  (NCMSC)  was  requested  to  examine  the

recommendations  made  by  the  Law  Commission  and  to  formulate  its

recommendations to this Court on the subject.  Professor Dr G Mohan Gopal,

Chairperson of NCMSC has submitted a note for calculating the required judge

strength for the district judiciary while also formulating his response to the rate of

disposal method suggested by the Law Commission.

11 The rate of disposal method suggested by the Law Commission seeks to

assess the judge strength required in the district judiciary to clear the backlog of

cases  as  well  as  to  ensure  that  a  fresh  backlog  is  not  created.  Under  this

method, the Law Commission seeks to address two concerns :

i) the large existing backlog of cases; and

ii) the number of judges required to ensure that new filings are

disposed of in such a manner that a further backlog is not created.

The expression “backlog” is defined as the difference between institution and

disposal of cases. The Law Commission has set down a goal of ensuring that

there are no pending cases at the end of each review period.

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The rate of  disposal  method suggested by the Law Commission can best be

explained from the following extract of its final report of February 2014 :

“For the present, and based on the information we currently have, the Commission has used the Rate of  Disposal  Method  to  calculate  the  number  of additional judges required to clear the backlog of cases as well as to ensure that new backlog is not created.  Under  this  method,  two  concerns  are addressed : (a) There is a large existing backlog of cases and (b) New cases are being instituted daily which are adding to the backlog.. In order to address both these concerns, we use the Rate of Disposal Method to provide for two sets of  judges  :  (a)  Number  of  judges  required  to dispose of the existing backlog and (b) Number of judges required for  ensuring that  new filings  are disposed of in a manner such that further backlog is not created. Under  the  Rate  of  Disposal  Method,  the Commission  first  looked  at  the  current  rate  at which  judges  dispose  of  cases.  Next  we determined how many additional judges working at a similar level of efficiency would be required so that the number of disposals equals the number of institutions in any one year time frame. As long as the institution and disposal levels remain as they currently are, the Courts would need these many additional judges to keep pace with new findings in order to ensure that newly instituted cased do not add to the backlog.. Second, working with the current rate of disposal of cases  per  judge,  we  also  looked  at  how  many judges would be required to dispose of the current backlog.  We have  defined  the  backlog  as  those cases which have been pending in the system for more than a year.”   

The method has been explained thus :

“(1) The method calculates the number of judges required  in  each  cadre  of  subordinate  Court judges,  i.e.,  Higher  Judicial  Service,  Civil  Judge

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Senior Division and Civil Judge Junior Division. For each  of  these  three  cadres  we  have  separately analyzed  figures  for  institution,  disposal  and  the working strength of judges, from 2010 to end-2012. (2) Disposals for one cadre of judges (e.g., Higher Judicial Service) is divided by the working strength of judges in that cadre. Working strength refers to sanctioned  strength  minus  vacancies  and deputations. This division gives us the annual Rate of Disposal per judge in a cadre for each year from 2010 to 2012. The average of this annual rate of disposal  figures  gave  us  the  Average  Rate  of Disposal per judge in that cadre. (3) We take an average of the annual institutions before each cadre of judge for the years 2010-12. The average institution is divided by the Average Rate of Disposal per judge for that cadre to give us the number of judges required to keep pace with the current filing, and ensure that no new backlog is  created.  We  call  this  figure  the  Break  Even Number.  (4) Subtracting the current number of judges from the  Break  Even  Number  gives  us  the  Additional Number  of  Judges  required  to  ensure  that  the number  of  disposals  will  equal  the  number  of institutions.  (5)  The  backlog  for  a  particular  cadre  of  judges (defined as all cases pending before that cadre of judges for more than a year) is then divided by the rate of disposal for that type of judge. This gave us the number of judges required to clear the backlog within a year. Dividing this number by 2 gives the number of judges required to clear the backlog in 2 years, and so forth.”

Therefore,  the  formula  for  determining  the  Additional  Number  of  Judges  for

Breakeven can be represented as follows :

ARD = [(D2010/J2010)+(D2011/J2011)+ (D2012/J2012)]/3 BEJ=(AI/ARD)-J

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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 :

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i) 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; ii) 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; iii) 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; iv) 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;

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v) 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 :

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“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”

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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

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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

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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

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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

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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

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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 :

I. Pendency Reduction                          :  Rs.858.83 crore

II. Establishment of Fast Track Courts   :  Rs.4144.11 crore III. Establishment of Family                   

Courts in districts without such courts                                 :  Rs.541.06 crore   

IV. Re-designing existing  court complexes to become more litigant friendly          :  Rs.1400 crore

V. Augmenting technical  support for ICT enabled courts           :  Rs.479.68 crore

VI. Scanning and Digitalisation  of Case Records of High Courts and District Courts                             :  Rs.752.50 crore

VII. Enhancing Access to Justice  i) Support for Law School  

based Legal Aid Clinics with focus on undertrials          :  Rs.50.50 crore

ii) Organizing Lok Adalats            :  Rs.93.61 crore iii) Support for Mediation

/conciliation in ADR centres      :  Rs.300 crore iv) Incentives to Mediators

/Concilators                            :  Rs.503.44 crore VIII. (a) Training and capacity  

building of judges, public

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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:

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i) 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. ii) Submitting  a  request  for  funds  from  the  State

Government within time for financial years 2016-17 to 2019-2020;

iii) 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

iv) 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:

(i) Finance  Secretaries  of  each  State  be associated  with  the  work  of  the  High  Court committees  in-charge  of  monitoring  14th Finance Commission funds;

(ii) Proper  coordination be ensured between the Central  and State  Governments  in  regard  to the  submission  of  utilization  certificates  in

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relation to infrastructure  projects  of  the state judiciaries;

(iii) In  respect  of  the  e-Court  Scheme  and Infrastructure  scheme  which  are  being monitored  by  the  Department  of  Justice, intimations  of  funds  remitted  to  the  State Governments under these two Schemes shall also  be  forwarded  by  the  Department  of Justice to the High Courts.

(iv) State  Governments  shall  (i)  lend  such assistance to the High Courts as is required for proper utilization of 14th Finance Commission funds; and (ii) grant a one time exemption for 2016-17 to facilitate proper utilization”.

The Union Minister of Law and Justice has since addressed communications to

the Chief Ministers of States requesting that the state Finance Secretaries should

assist the registries of the High Courts to prepare perspective plans/individual

plans  for  activities  to  be  undertaken  in  the  justice  sector.  A letter  has  been

addressed to the Chief Justices on 26 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 :

i) 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

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interim approach indicated in the note submitted by the Chairperson,

NCMSC; ii) NCMSC is requested to endeavour the submission of its final report by

31 December 2017; iii) 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; iv) 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; v) 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; vi) The  High  Courts  shall  take  up  the  issue  of  creating  additional

infrastructure required for meeting the existing sanctioned strength of

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their state judiciaries and the enhanced strength in terms of the interim

recommendation of NCMSC;  vii)  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 viii) 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.