IMTIYAZ AHMAD Vs THE STATE OF UTTAR PRADESH
Bench: ASOK KUMAR GANGULY,T.S. THAKUR
Case number: Crl.A. No.-000254-000262 / 2012
Diary number: 3687 / 2009
Advocates: AJAY KUMAR SINGH Vs
ABHISHEK CHAUDHARY
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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
2
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.
3
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
4
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
5
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:
6
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.
7
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
8
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
9
(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
10
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%.
11
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
12
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.
13
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:-
14
“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
15
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.
16
(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:
17
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:-
18
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
19
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
20
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.
21
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,
22
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
23
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
24
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
25
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
26
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
27
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
28
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
29
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
30
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
31
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
32
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
33
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…”
34
[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
35
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,
36
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.
37
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.
38
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
39
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
42
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
44
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
45
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
49
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
51
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