REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 470   OF 2018 (ARISING OUT OF SPECIAL LEAVE PETITION (CRL.)NO.9393 OF

2017)

KRISHNAKANT  TAMRAKAR  …APPELLANT

VERSUS THE STATE OF MADHYA PRADESH         ...RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. Leave  granted.  This  appeal  has  been  preferred  against  the

order dated 3rd May, 2017 of the High Court of Madhya Pradesh in

CRA No.1823 of 2009 whereby prayer for bail, pending disposal of

criminal appeal against life sentence has been declined though the

appellant has been in custody for more than ten years.

2. The appellant stands convicted under Sections 148, 302/149

IPC  and  sentenced  to  life  imprisonment,  apart  from  other

sentences.   According to the prosecution,  on 23rd June,  2005 at

11.30 A.M., the appellant along with the co-accused caused the

murder  of  one  Shahid.   In  view  of  evidence  in  support  of  the 1

charge, the trial Court convicted and sentenced the appellant.  The

appellant applied for bail pending consideration of appeal before

the  High  Court.    After  the  said  prayer  was  rejected,  another

application  was  filed.   The  High Court  rejected  the  second  bail

application with the observation that the evidence on record did

not warrant grant of bail.  

3. In this appeal, the order of the High Court is challenged mainly

on the ground that the appellant had been in custody for more

than ten years and the remedy of appeal will be meaningless if he

has to remain in custody for the full term of sentence.  Reliance

has been placed on the judgment of this Court in Kashmira Singh

versus State of Punjab1.

THE ISSUE

4. When the matter came up for consideration before this Court,

following order was passed :

“The grievance of the petitioner is that he has been in custody for more than ten years. He has neither been granted bail nor his appeal is heard. It is stated that there is no likelihood of the appeal being heard before the High Court in the near future.  While  we  are  not  inclined  to  grant  bail,  we  issue notice  confined  to  the  question  as  to  how  the situation can be remedied ensuring that the appeal

1 (1977) 4 SCC 291

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is  heard within a reasonable time at the appellate forum.  Issue notice. Notice be also issued to the Convenor, National  Mission  for  Justice  Delivery  and  Legal Reforms i.e.  the  Secretary  Justice  –  Union of  India and also the Attorney General of India.  Shri Gopal Subramanium, learned senior counsel who is  present  in  the  Court  is  requested  to  assist  the Court as amicus.”

5. Accordingly, we have heard learned Attorney General and the

learned amicus on the question as to how the problem of delay in

hearing of the appeals can be remedied.

SUBMISSIONS OF THE LEARNED AMICUS

6. Learned Amicus submitted that timely justice is essential for

the  Rule of Law.  Access to justice is a fundamental right under the

Constitution of India.  It is also recognized under Article 10 of the

Universal Declaration of Human Rights as well as Articles 9 and 14

of the International Convention on Civil and Political Rights.  There

is,  thus,  dire  need  to  find  practical,  effective  and  achievable

system for speedy disposal of appeals.  In its 245th Report in the

year 2014, the Law Commission of India made analysis for method

of computing adequate judge-strength and recommended increase

of number of judges on that basis.  In  Vineet Narayan versus

Union of India2,  this Court held that the Government agencies 2 (1996) 2 SCC 199

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must perform their legal obligations as per mandate of Article 14 of

the Constitution.  In Prakash Singh versus Union of India3, this

Court  directed police reforms to  be brought about for  scientific,

speedy and quality investigation.  The United States Speedy Trial

Act, 1974 provides timelines for steps in justice delivery.  Timeline

provided  in  different  statutes  in  India,  such  as  filing  of  charge

sheets under Section 167 Cr.P.C. is required to be implemented.

Project of National Arrears Grid was required to be implemented.

The  Woolf  Report  of  1996  emphasized  generation  of  accurate

judicial statistics on a daily basis.  The Grid should help identify the

steps  for  dispensation  of  justice  concerning  the  poor  and  the

underprivileged.   Case  Management  practices  should  be

implemented.   In  its  report  titled  ‘Delaying  Justice  is  Denying

Justice’  the  Candian  Standing  Senate  Committee  on  Legal  and

Constitutional Affairs stated “the lack of robust case and case flow

management is perhaps the most significant factor contributing to

delays”.   In  England  and  Wales,  pre-trial  case  management  is

rigorously followed in all criminal cases at both the trial and the

appellate levels.  Active case management includes:

“(i) The early identification of the real issues;

3 (2006) 8 SCC 1

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(ii) Achieving  certainty  as  to  what  must  be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case; (iii) Monitoring  the  progress  of  the  case  and compliance with directions; (iv) Discouraging  delay,  dealing  with  as  many aspects  of  the  case  as  possible  on  the  same occasion, and avoiding unnecessary hearings; (v) Encouraging the participants to co-operate in the progression of the case, and (vi) Making use of technology.”

7. Reference  was  also  made  to  Case  Management  Criminal

Procedure in England and Wales.

8. Learned  Amicus  further  submitted  that  in  appeals  against

acquittal efforts should be made to weed out unmeritorious appeals.

Competent Government  advocates should be appointed by a fair

and  transparent  mechanism  as  laid  down  in  State  of  Punjab

versus Brijeshwar Singh4.   

9. Vacancies of  the High Court  Judges should be filled up well

before the date a judge demits the office.  Ad hoc judges should be

appointed to deal with the pending appeals.   

4 (2016) 6 SCC 1

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10. Wherever there is higher pendency of appeals, the same can

be  transferred  to  the  courts  of  concurrent  jurisdiction  of  other

States.  Technology ought to be used to facilitate speedy conduct of

trials and disposal of appeals.  Electronic copy of all papers should

be served as soon as a charge sheet is filed.  The technology can be

used for speedy and summary disposal of certain cases such as the

traffic offences. Evidence can be recorded by video conferencing,

especially  for  Doctors  and  investigating  officers  who  may  be  on

outstation  job  and engaged in  official  duties  which  suffer  if  they

have to physically come to the court.  There must be change in the

work culture amongst the members of the bar as well as the police.

Efforts should be made to avoid adjournments. Time table should be

laid down for hearing of appeals which should be strictly adhered to.

SUBMISSIONS OF LEARNED ATTORNEY GENERAL

11. Learned Attorney General submitted that the Government has

adopted  a  coordinated  approach  to  assist  the  judiciary  for

liquidation  of  arrears  and  pendency  by  providing  better

infrastructure  for  courts  including  computerization,  increase  in

strength  of  judges,  policy  and  legislative  measures  in  the  areas

prone  to  excessive  litigation  and  emphasis  on  human  resource

development.  ECourts Mission Mode Project has been introduced.

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Computerized  courts  have  been  increased  to  16,089.   Cost  of

Rs.1,670  crores  has  been  approved  for  the  purpose.   Video

Conferencing  facility  has  been operationalised  in  500  courts  and

prisons.  Natinal Judicial Data Grid has information regarding 6.36

crores  decided  and  2.5  crores  pending  cases.   5.24  crores

orders/judgments are available.  Steps have been taken to fill  up

vacancies  in  Supreme  Court  and  High  Courts.   Appointment  of

Judges  and  judicial  officers  in  district  and  subordinate  courts  is

within the domain of the High Courts and the State Governments.  A

total  of  Rs.5956  crores  have  been  released  under  Centrally

Sponsored Scheme (CSS) for Development of Infrastructure facilities

for  the  Judiciary.   17,576  Court  Halls  and  14,363  Residential

Accommodations  are  available  for  the  Judges/Judicial  Officers  of

District and Subordinate Courts.  In addition, 2,852 Court Halls and

1,622 houses are under construction.  14th Finance Commission has

endorsed  the  proposal  to  strengthen  the  judicial  system  by

establishing 1800 Fast Track Courts (FTCs) for five years for specified

offences at a cost of 4,144 crores.  As per resolution of the Joint

Conference of  Chief  Justices and Chief  Ministers,  the Government

has  requested  the  State  Governments  to  strengthen  institutional

mechanism between the State and the Judiciary.  Steps have been

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taken for timely completion of  infrastructure and eCourts Mission

Mode project.  There is need to implement Section 436A Cr.P.C. and

ensure  periodic  monitoring  of  under-trial  Review  Committee

Mechanism.   The  Commercial  Courts,  Commercial  Division  and

Commercial  Appellate  Division of  High Court  Act,  2015 has  been

notified to streamline the conduct of cases in Commercial Division

and  Commercial  Courts.   Amendments  have  been  made  in  the

Arbitration  and  Conciliation  Act,  1996  and  the  Negotiable

Instruments Act, 1881.  In pursuance of resolution of Chief Justices’

Conference held in April, 2015, Arrears Committees have been set

up to clear backlog of cases pending from more than five years.  The

Supreme Court has also constituted Arrears Committee to formulate

steps  and  reduce  pendency  of  cases  in  High  Courts  and  district

courts.  National Legal Services Authority provides mechanisms for

access to justice for the poor.  Lok Adalats have been held resulting

in  disposal  of  number  of  cases  on  the  basis  of  compromise  not

requiring adjudication, apart from adjudication in public utility Lok

Adalats.   The  Government  has  approved  scheme  for  engaging

Nyaya Mitras to assist the litigants.

12. Learned Attorney General submitted that delay in disposal of

appeals can be tackled by appointing more judges and by better

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coordination and planning.  It  was also submitted that by proper

scrutiny,  application for  leave to  appeal  or  even appeals  can be

summarily disposed of which will reduce the burden of the courts.

13. We place on record our gratitude for the learned Amicus and

learned Attorney General for their valuable assistance rendered.

CONSIDERATION OF THE ISSUE

14. Even though initially notice was issued to consider the issue of

remedying the situation of delay in hearing of the criminal appeals

before  the  High  Courts,  learned  amicus and  learned  Attorney

General  addressed  the  Court  generally  on  the  issue  of  speedy

justice at all levels.  We consider it appropriate to reflect on some

important aspects of speedy justice as these aspects are integral to

the issue of delay in hearing of criminal appeals by the High Courts.

First question which we take up for consideration is whether, having

regard  to   the  nature  of  jurisdiction  of  the  High  Court  and  the

present volume of the work,  the expectation for speedy disposal of

criminal appeals is realistic or there is need for re-engineering of

the judicial  structure.   Secondly, when speedy justice is directly

linked to timely appointment of best talent, whether there is need

to revisit the existing system of appointment of judges at all levels.

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Thirdly, what can be the mechanism to plan and oversee the best

management  practices,  including  employment  of  technology,  for

optimum performance and righteous conduct.  Fourth, how uncalled

for frequent strikes obstructs access to justice and what steps are

required to remedy the situation.

15. We are conscious that the above issues are primarily policy

matters.   The  subject  matter  of  restructuring  of  courts  and

administration  of  justice  is  a  matter  to  be  gone  into  by  the

executive and the legislature.  However, since the subject affects

fundamental  right  of  speedy justice,  this  Court  cannot  refuse to

look into the problem repeatedly presented to it with a view to draw

attention of all concerned, leaving to the concerned authorities to

consider and act in the matter.  

16. There can be no dispute that access to speedy justice is part of

fundamental right under Articles 14 and 21 of the Constitution.  The

National  Commission  to  Review  Working  of  the  Constitution

recommended that access to speedy justice may be incorporated as

an express fundamental right5.

5 Anita Kushwaha  v.  Pushap Sudan (2016) 8 SCC 509, para 31

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17. The  matter  has  been  subject  of  consideration  in  several

decisions.  In  Imtiaz Ahmad  versus  State of U.P.6 the issue

taken up for consideration was delay in disposal of criminal cases

where stay was granted by the High Court.  On consideration of a

report, the Court noted:  

“(a)  As  high  as  9%  of  the  cases  have completed  more  than  twenty  years  since the date of stay order. (b)  Roughly  21%  of  the  cases  have completed more than ten years. (c)  Average  pendency  per  case  (counted from the date of stay order till 26-7-2010) 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.”

18. This Court directed the Law Commission to examine the matter

with a view to set up additional courts to eliminate delays.   

19. Accordingly, Law Commission examined the matter in its 245th

Report  given  in  July,  2014  and  recommended  review  of  cadre

6 (2012) 2 SCC 688

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strength.   The Commission noted that the system was unable to

deliver timely justice because of huge backlog for which the judge

strength was inadequate.  It noted that mandatory time frames were

provided in some countries.  In P. Ramchandra Rao versus State

of  Karnataka7,  this  Court  was  not  in  favour  of  mandatory  time

limit. Non binding directory guidelines could be adopted.  14th Report

of the Law Commission suggested time frame which was reiterated

in subsequent Law Commission reports.  The Malimath Committee

recommended use of two year time frame as the norm by which

delay and arrears in the system should be measured.  Case specific

time tables are adopted to meet the object of individualized timely

justice.  The Commission observed that all cases pending for

more than one year be categorized as backlogged.  All cases

backlogged  in  three  years  and  current  cases  be  decided

within one year.   The Commission considered various methods for

fixing the judge strength so as to meet current institution of cases

within the expected time frame as well as also to clear the arrears

within the targeted time. One of  the problems noticed was huge

vacancies and failure in timely filling up of vacancies.  Delay and

arrears was a concern not only in the trial courts but throughout the

judicial system.   If the disposal in trial courts increased, the matter

7 (2002) 4 SCC 578

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may be held up in the higher courts. Adequate infrastructure and

support staff was also of importance.  Good Judicial management

practices  such as timeliness  and performance bench marks  were

also discussed.  It was observed that the High Courts are already

backlogged  and  not  able  to  keep  pace  with  new filings.   It  was

observed  that  there  was  need  to  establish  non-mandatory

timeframe for different types of cases.  Unless judges and litigants

have clear expectations, there will be little accountability for delays.

20. Thereafter,  the  matter  was  considered  in  Imtiyaz  Ahmad

versus   State  of  Uttar  Pradesh  and  Ors.8.  This  Court  gave

directions  for  review of  cadre strength in  terms of  principles  laid

down therein.  However, the said judgment appears to have dealt

with the issue of fixing up of strength of judges for the subordinate

judiciary and infrastructure for the district judiciary9.

Possibility of decision of five year old cases pending in the High Courts particularly the criminal appeals within the existing system – Need to consider decongestion of Constitutional Courts.

21. In  Akhtari Bi versus State of M.P.10, this Court requested

the Chief  Justices of the High Courts to take immediate effective

8 (2017) 3 SCC 658 9 Para 43 10 (2001) 4 SCC 355

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steps for disposal  of  criminal  appeals pending for more than five

years.   

22. The matter was considered by the Joint Conference of Chief

Ministers  and  the  Chief  Justices  held  in  April,  2016  and  it  was

resolved:

“8. DELAY AND ARREARS COMMITTEE:

xxx  xxx xxx Resolved that

(i) all High Courts shall assign topmost priority for disposal  of  cases  which  are  pending  for  more than five years;

(ii) High Courts where arrears of cases pending for more  than  five  years  are  concentrated  shall facilitate their disposal in mission mode;

(iii) High Courts shall progressively thereafter set a target  of  disposing  of  cases  pending  for  more than four years;

(iv) while prioritising the disposal of cases pending in the District  Courts  for  more than five years, additional incentives for the Judges of the District Judiciary be considered where feasible; and

(v)  efforts  be  made  for  strengthening  case-flow management rules.”

23. The available figures11 show that long pendency, particularly of

more than five years remains a serious challenge.  In High Courts,

11  Please refer to Court News – October-December, 2016 in Supreme Court Website (www.supremecourtofindia.nic.in)  or    (http://supremecourtofindia.nic.in/pdf/CourtNews/COURT_NEWS_Vol_XI_Issue_No4_October_to_December_2016.pdf)  

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16.29 lakhs  cases were more than five years old.  7.43 lakh cases

were more than 10 years old.  Since current disposal itself was less

than the institution of  fresh cases,  there was no likelihood of old

cases  being  decided  in  a  reasonable  time.   There  could  not  be

increase  of  strength  of  High  Court  Judges  beyond  a  limit.   The

system could not be top heavy.  Volume of work in the High Court

was likely to further increase on account of increased disposal of

cases in subordinate courts with the increased strength of judges,

infrastructure  and other  steps being taken.   Disposal  of  cases  in

subordinate courts is not enough if the same are thereafter held up

in the High Courts.  New laws are being enacted providing statutory

remedies before the High Courts.  Moreover, oversight mechanism

for judges of the Constitutional Courts is not the same as for other

Judges12.   While,  there  can  be  no  doubt  about  need  for  such

protection,  appointment  of  large  number  of  such  judges  can  be

counter  productive.   If  number  of  Constitutional  Courts  is  to  be

increased to  match the  volume of  work  being  entrusted to  such

Courts,  it  may  have  its  implication  unless  it  is  possible  to  find

12 (1997) 3 SCC 261 – para 78 “ … …The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it.   It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations.  It  is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence.  The constitutional safeguards which ensure the independence of the Judges of  the superior judiciary,  are not available  to the Judges of  the subordinate  judiciary  or to those  who man tribunals created by ordinary legislations. …”

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sufficient number of suitable persons.  The fact that there are large

number  of  vacancies  in  such  Courts  shows  the  difficulty  in

identifying adequate number of suitable persons for Constitutional

Courts.   Needless  to  say  that  nature  of  work  before  the

Constitutional  Courts  particularly  laying  down  of  law  is  time

consuming.  Such Courts cannot be overburdened.

24.   The Arrears Committee of this Court considered the issue of

filling up of vacancies in subordinate courts and the issue of arrears.

It was noted that while better monitoring, better management and

other steps such as the Central Selection may help speedy disposal

in subordinate courts, the working of constitutional courts stands on

different footing. There being mismatch in pendency and disposal,

the Committee recommended an interaction with the stakeholders

to explore the issues of judicial reforms including reengineering of

structure  of  administration  of  justice  and  the  legislative  changes

necessary  for  the  constitutional  goal  of  speedy  justice13.

Accordingly, a meeting with the stakeholders was held on 8th April,

2017.  The issues considered were:

“i) Decongestion  of  Supreme  Court  and  High Courts from civil and criminal appeals.

13 Minutes of the meeting of the Arrears Committee held on 23rd March, 2017

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ii) Performance  of  Tribunals  in  contribution  to decongestion of  cases in  Supreme Court and High Courts.  

iii) Central  Selection  Mechanism  to  fill  up vacancies in subordinate courts.

iv) Video recording and conferencing in Courts & video investigation by investigating authorities.

v) Reforms in Legal Profession.

vi) Issue of granting Bail and under Trials.”

25. In the said meeting,  it was noticed that in most of the High

Courts  disposal  was  less  than  the  institution.   This  called  for

reengineering of structure of administration of justice. One of the

suggestions  was  that  statutory  remedies  provided  before  the

constitutional  courts  may  be  shifted  to  alternative  fora.   It  was

suggested  that  Courts  of  Appeals  may  be  set  up  higher  to  the

District Courts but below the High Court.  Such Courts of Appeals

could  comprise  more  than  one  member,  partly  drawn  from  the

senior  district  judges  and  partly  recruited  directly  from  the  Bar

through  a  Central  Selection  Mechanism14.  If  above  proposal  is 14 Relevant extract from the minutes of meeting of the Arrears Committee held on 8th April, 2017:   

“Reference to the available statistics shows that pendency of more than five year old cases in the High Courts was more than 40% of the total pendency in the High Courts and figures of five year old cases were on the increase. Criminal Appeals in most of the High Courts were pending for more than five years and there was no possibility of such appeals being taken up for hearing to satiate the aspirations of the common litigant of speedy justice. In most of the High Courts disposal of Criminal Appeals was less than the institution. Delay in decision of criminal cases, particularly in category  of  serious  cases  where  granting  bail  was  not  safe,  was  not  a  satisfactory  situation.  Unless  there  was  an alternative to ensure speedy disposal for criminal cases in the High Courts, search for structural alternative was the imperative need of the hour. There are other areas of appellate jurisdiction in the High Court including second appeals, matrimonial matters, accidental claim cases, land acquisition cases which also require prompt disposal, but the same get

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considered,  pending  appeals  before  the  High  Court  could  be

transferred to such Benches whose decisions will be final.   

26. An enabling statute could be enacted whereby the State could,

in  consultation  with  the  High  Courts,  transfer  all  or  certain

categories of appeals or other statutory proceedings from the High

Courts to the alternative fora.  Constitutional remedies will remain

intact.  It was explained that this would not be creating one extra

forum resulting  in  longer  duration  of  litigation  instead  of  speedy

disposal.  The constitutional remedy under Article 227 was different

from statutory appeal15.   

27. Suggestions  considered  in  the  meeting  also  include

restructuring  of  the  Tribunals,  reforms  in  legal  profession,  online

grievance  redressal  mechanism  against  administrative  decisions

with specified time limits at par with the Right to Information Act clogged at the High Court level because of the high pendency of the cases in the High Courts and time taken in decision of such appeals. The statistics show that in most of the High Courts the disposal was less than the institution and as many as 16.29 lakh cases were more than five years old. Figure of 10 year old cases is 7.43 lakhs in the High Courts and more than 20 lakhs in the subordinate courts.  

Thus, there is need for re-engineering of the structure of administration of justice by which the Supreme Court and the High Courts may discharge only core constitutional  functions while the statutory appeals or other statutory functions can be dealt with by an alternative mechanism by courts of appeal which, in hierarchy will be higher to the district judges but below the High Court. Such cadre may comprise of members drawn partly by selection from the Higher Judicial Service and partly from the Bar through Centralised Recruitment Mechanism. It may be possible to lay down  disposal  norms/targets  to  be  achieved  by  such  benches  and  in  light  thereof  number  of  benches  within  the jurisdiction of  each High Court  may be  assessed.  Pending appeals  or  at  least  certain  categories  of  appeals  can be transferred to such Benches. Based on performance, integrity and suitability, members of the appellate benches may be considered for elevation to the High Courts. Remedy to move the High Court under Articles 226/227 will remain intact. Apprehension was expressed by some of the participants that creating another Appellate Forum may not necessarily result in reducing the 4 docket load of the High Courts and Supreme Court. Because, going by the present trend there is a tendency of every litigation being carried to the higher Forum and at least till the High Court if not the Supreme Court. However,  the  scope  of  interference  in  constitutional  jurisdiction  of  the  High  Courts  under  Article  226/227  is circumscribed and not the same as deciding appeals on facts and law.”

15 Radhey Shyam  versus  Chhabi Nath (2015) 5 SCC 423; Sita Ram  versus State of U.P. (1979)2 SCC 656

18

(RTI), summary procedures for civil and criminal disputes of certain

categories16.   The  matter  was  also  considered  thereafter  in  the

meeting  of  Arrears  Committee  of  the  Supreme  Court  with  the

Arrears Committees of the High Courts17.   

28. In 124th Report of the Law Commission of India (1988) titled

“High Court Arrears – A Fresh Look”, the Law Commission observed

that  wherever  possible,  proliferating  appellate  and  wide  original

jurisdiction should be controlled and curtailed without impairing the

quality of justice.  It  was observed that the approach of the Law

Commission  is  to  reduce  number  of  appeals,  set  up  specialist

courts/tribunals to reduce the inflow of work to the High courts.  

29. Desirability  of  amending  provisions  of  direct  appeal  to  this

Court was also considered in Gujarat Urja Vikas Nigam Limited

versus  Essar Power Limited18. Therein, this Court considered

the  unique  role  of  the  highest  court  and  observed  that

overburdening  of  Constitutional  Courts  was  undesirable  for

functioning of the Constitution. Heavy work of routine nature before

Constitutional  Courts  affected  their  assigned  core  role.   Law

Commission was asked to look into the matter.

16 Minutes of the interaction of the Arrears Committee for Supreme Court & High Courts held on 8th April, 2017 17  Minutes of the interaction of the Arrears Committee for Supreme Court & High Courts held on 22nd April, 2017 18 (2016)9 SCC 103

19

30. In 272nd report, the Law Commission observed that the forum

for challenging the order of tribunal should be appellate tribunals,

which  decision  should  be  final.  No  statutory  appeal  should  be

provided  before  the  High  Courts  or  Supreme  Court  in  routine

manner19.    No  action  appears  to  have  been  taken  on  the  said

recommendations.  

31. Since  one  trial  and  one  appeal  are  considered  to  be

components of fair system of administration of justice in criminal

cases of serious nature20,  adjudication at the original forum and at

one appellate forum must be within reasonable time which should

not  normally  exceed  one  to  two  years,  as  noted  by  the  Law

Commission  and  the  Malimath  Commission.   At  the  same  time,

multiple  layers  of  remedies  need  to  be  eliminated.   Article  227

remedy, as earlier observed, is meant primarily against perversity

or patent error in a judgment.

32. From the data available it is clear that all the steps taken by

the Central Government so far have not significantly improved the

situation of speedy disposal of criminal appeals.  The steps taken

are set off by increased volume of work or otherwise.

19 8.23 of the Law Commission Report 20 Dadu  alias Tulsidas  versus  State of Maharashtra (2000) 8 SCC 437, para 17

20

33. Accordingly, we are of the view that the Union of India ought

to consider whether it is viable to have criminal appeals and other

matters before the High Courts decided within reasonable time as

per existing system. If  not,  whether it  is  possible to provide any

other suitable forum for such appeals so as to ensure enforcement

of fundamental right of speedy justice or how else the situation can

be  remedied.   The  issue  of  non-viability  of  providing  routine

statutory appeals to Constitutional Courts as observed in  Gujarat

Urja (supra) may also need to be considered.

Filling  up  of  vacancies  at  all  levels  with  the  best

available talent

34. Apart  from  the  above,  the  steps  which  need  immediate

consideration include timely filling up of vacancies at all levels with

the best available talent.  The 14th Law Commission in its Report in

the  year  1958  examined  the  issue  of  having  best  talent  for

subordinate  judiciary.  It  suggested  selection  by  all  India  level

competition and constitution of  All  India  Judicial  Service.   In  All

India Judges’ Association   versus  Union of India21 this Court

observed that the Union of India should take steps in the matter as

early as possible.  This Court also directed vacancies at all levels be

21 (1992) 1 SCC 119 – para 12

21

filled  up  in  a  time  bound  manner22.   The  uniform  method  of

recruitment  was  directed  to  be  followed  by  amending  the

applicable rules23.   

35.    Relying upon the minutes of the Arrears Committee of this

Court dated 8th April, 2017 that a central selection mechanism may

be  introduced  to  timely  fill  up  all  the  vacancies  with  the  best

available talent,  the Department  of  Justice,  Government  of  India

vide  letter  dated  28th April,  2017,  addressed  to  the  Secretary

General  of  this  Court,  stated  that  the  idea  of  Central  Selection

Mechanism ought to be considered.  The said letter was treated by

the then Chief Justice of India as Suo Motu Writ (Civil)No. 1 of 2017

(In  Re:   Central  Selection  Mechanism  for  Subordinate

Judiciary   versus   Union  of  India  &  Ors) and  notices  were

issued.   Learned amicus gave  a  note  on  the  Central  Selection

Mechanism which  was  circulated  to  all  the  States  and  the  High

Courts vide order dated 28th July, 201724. The matter is, however,  

22 (2008) 17 SCC 703 – Malik Mazhar Sultan (3) and Anr.  Versus  UP Public Service Commn & Ors – para 7 23 (2002) 4 SCC 247– All India Judges’ Association versus  UOI, para 27

24  “1.    We are tentatively of the view, that the objections raised by a few of the High Courts  for  centralization  of  the  selection  process  of  Subordinate  Judges,  have  been suitably dealt with in our order dated 10.7.2017. It however seems, that some confusion still  persists.  This  obviously  is  out  of  a  possible  mis-communication.  We  therefore, consider it just and appropriate to request Mr. Arvind P. Datar, learned Amicus Curiae, to prepare a 'Concept Note', highlighting the various aspects of our order dated 10.7.2017 and indicating how the objections raised  stand  satisfied.  The 'Concept  Note'  shall  be placed on the record of this case, and circulated amongst learned counsel representing the States or the High Courts, before the next date of hearing.                   2.    List again on 4.8.2017, at 3.00 p.m”

22

still pending.  We refrain from expressing any view on the judicial

order  to  be  passed.  Needless  to  say  that  setting  up  of  Central

Selection  Mechanism  will  go  a  long  way  in  having  timely

appointments of best available talent.  Steps in this regard may be

taken by the concerned authorities25 without delay so that timely

and quality appointments can be ensured.

36. Appointment  to  constitutional  courts  is  governed  by  the

Collegium  system  as  laid  down  in  judgments  of  this  Court  in

Supreme  Court  Advocates-on-Record  Association   versus

Union  of  India26 and  Special  President  Reference  under

Article  143(1)  Relating  to  Judges  Transfer  and

Appointment27.   Vide  99th Amendment  to  the  Constitution,  the

said  system was  sought  to  be  replaced  by  the  National  Judicial

Appointment Commission (NJAC).  The said Amendment was struck

down  by  this  Court  in  Supreme  Court  Advocates-on-Record

Association   versus   Union  of  India28.   However,  it  was

observed that the functioning of Collegium System needed to be

improved29. 25 See Entry 11A, List III, Seventh Schedule to the Constitution 26 (1993) 4 SCC 441, para 478(13), paras 480, 486 27 (1998) 7 SCC 739, para 44 28 (2016) 5 SCC 1 – para 1255 29 (2016) 5 SCC 1 – Chelameswar, J – Para 1236;  Lokur, J – para 969; Kurian, J. – para 990; Goel, J. – para 1111 :

1236.….The abovementioned two are not the only cases where the system failed. It is a matter of public record that in the last 20 years, after the advent of the Collegium System, a number of recommendations made by the Collegia of  the  High Courts  came to be  rejected  by  the  Collegium of  the  Supreme Court.  There  are  also  cases  where  the

23

Accordingly, while upholding the Amendment, the Court vide order

dated 16th October, 2015 directed:

“5.  To  consider  introduction  of  appropriate measures, if any, for an improved working of the “Collegium System”, list on 3-11-2015”.

Collegium of this Court quickly retraced its steps having rejected the recommendations of a particular name made by the High Court Collegium giving scope for a great deal of speculation as to the factors which must have weighed with the Collegium to make such a quick volte face. Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard. The records are absolutely beyond the reach of any person including the Judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.

969. The result of this declaration is that the “Collegium System” postulated by the Second Judges case [(1993) 7 SCC 441] and the Third Judges case [Spl. Ref.1 of 1998, In Re.1998 7 SCC 739] gets revived. However, the procedure for appointment of Judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning. We had requested the learned counsel, on the close of submissions, to give suggestions on the basis that the petitions are dismissed and on the basis that the petitions are allowed. Unfortunately, we received no response, or at best a lukewarm response.

990. All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium System lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium System, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting the self-respect  and dignity,  if  not,  independence of  Judges,  the court, particularly  the  Supreme  Court,  often  being  styled  as  the  Court  of  the  Collegium,  the  looking  forward  syndrome affecting impartial  assessment,  etc.,  have been some of  the other  allegations in the air  for  quite  some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the Framers of the Constitution. Though one would not like to go into a detailed analysis of the reasons, I feel that it is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed the system. To me, it is a curable situation yet.

1111. Since the system existing prior to the amendment will stand revived on the 99th Amendment being struck down and grievances have been expressed about its functioning, I am of the view that such grievances ought to be considered. It is made clear that grievances have not been expressed by the petitioners about the existence of the pre- existing system of appointment but about its functioning in practice. It has been argued that this Court can go into this aspect without revisiting the earlier decisions of the larger Benches. I am of the view that such grievances ought to be gone into for which the matter needs to be listed for hearing.

24

37. After due consideration of various suggestions, this aspect of

the matter was dealt with vide order dated 16th December, 2015 as

follows:

“1255.  In view of the above, the Government of India may finalise the existing Memorandum of  Procedure  by  supplementing  it  in consultation  with  the  Chief  Justice  of  India. The Chief Justice of India will  take a decision based on the unanimous view of the Collegium comprising the four seniormost puisne Judges of  the  Supreme  Court.   They  shall  take  the following factors into consideration:

1256.1.  Eligibility  criteria:   The Memorandum of  Procedure  may  indicate  the eligibility  criteria,  such as  the minimum age, for the guidance of the Collegium (both at the level of the High Court and the Supreme Court) for  the  appointment  of  Judges,  after  inviting and taking into consideration the views of the State  Government  and  the  Government  of India (as the case may be) from time to time.

1256.2.Transparency  in  the  appointment process:   The  eligibility  criteria  and  the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to  be  made available  on  the  website  of  the Court  concerned  and  on  the  website  of  the Department  of  Justice  of  the  Government  of India.   The  Memorandum  of  Procedure  may provide  for  an  appropriate  procedure  for minuting the discussion including recording the dissenting  opinion  of  the  Judges  in  the Collegium  while  making  provision  for  the confidentiality  of  the minutes  consistent  with the requirement of transparency in the system of appointment of Judges.

1256.3. Secretariat:  In the interest of better management of the system of appointment of

25

Judges,  the  Memorandum  of  Procedure  may provide for the establishment of a Secretariat for  each  High  Court  and  the  Supreme Court and  prescribe  its  functions,  duties  and responsibilities.

1256.4.  Complaints:  The  Memorandum  of Procedure  may  provide  for  an  appropriate mechanism  and  procedure  for  dealing  with complaints  against  anyone  who  is  being considered for appointment as a Judge.

1256.5. Miscellaneous:  The  Memorandum of Procedure  may provide  for  any  other  matter considered  appropriate  for  ensuring transparency  and  accountability  including interaction  with  the  recommendee(s)  by  the Collegium  of  the  Supreme  Court,  without sacrificing  the  confidentiality  of  the appointment process.”

38. Improvement contemplated in the above judgment does not

seem to have seen the light of the day.  In  Re: Sri Justice C.S.

Karnan30  observations have been made as to the need to revisit the

process  of  appointments  and  to  set  up  mechanism  for  corrective

measures other than impeachment against conduct of an erring Judge.  

30 (2017) 7 SCC 1 – paras 77-78: “77. This case, in our opinion, has importance extending beyond the immediate problem. This case highlights

two things: (1) the need to revisit the process of selection and appointment of Judges to the constitutional courts, for that  

matter any member of the judiciary at all levels; and (2) the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a  

constitutional court requires corrective measures—other than impeachment—to be taken. 78. …. What appropriate mechanism would be suitable for assessing the personality of the candidate who is

being considered for appointment to be a member of a constitutional court is a matter which is to be identified after an appropriate  debate  by  all  concerned—the  Bar,  the  Bench,  the  State  and  civil  society.  But  the  need  appears  to  be unquestionable.”

26

39. We make it clear that we are in no manner deviating from the law

laid  down by this  Court  that  primacy in  appointment  of  Constitutional

Courts  is  to be of  the Chief  Justice of  India.   At  the same time,  even

without affecting such primacy improvement in working of Collegium is a

felt  necessity  as  held  above.  Five  Judge  Bench  of  this  Court  directed

setting up of  the  Secretariat  and also  to  incorporate  other  factors  for

improved and effective working of  the collegiums system.  This  apart,

corrective  measures  against  post  appointment  conduct  or  inadequate

performance or failure to uphold righteous conduct need to be evolved.

These aspects require urgent attention of concerned authorities.

40. We may particularly note that if  a High Court remains without  a

permanent Chief Justice, process of speedy justice certainly suffers.  In

spite of timeline in the MOP for appointments in pursuance of Judgement

of  this  Court  in  Supreme Court  Advocates-on-Record Association

and Ors.  versus  Union of India31 that there will be no Acting Chief

Justice for more than one month32, timely appointments of Chief Justices is

not taking place.  Appointment of a Chief Justice for few days for a High

Court other than the place where the candidate is already working serves

no purpose of the system.  The Central Government must take all steps to 31 (1993)4 SCC 441, para 478 32 Para 5 of the ‘Memorandum showing the Procedure for Appointment and Transfer of Chief Justices and Judges of  High Courts’  (MOP).

                      “5.  Initiation of the proposal for the appointment of Chief Justice of a High Court would be by the Chief Justice of India.  The process of appointment must be initiated well  in  time to ensure the completion at  least  one month prior  to  the date of  anticipated vacancy for the Chief Justice of the High Court.  The Chief Justice of India would ensure that when a Chief Justice is transferred from one High Court to another simultaneous appointment of  his  successor  in  his  office  should  be  made  and  ordinarily  the  arrangement  of appointment of an acting Chief Justice should not be made for more than one month.”

27

ensure such appointments as per prescribed timeline. Even if it may not

be  possible  to  make  initial  appointments  to  High  Courts  till  suitable

candidates  are  identified,  appointment  of  Chief  Justices  may stand  on

different footing as selection is to be made out of available candidates. To

speedily identify such candidates, availability of data and involvement of

persons who can spend time may be needed.  The process may require

thinking, planning and acting on a continuous basis.    Primacy with the

judiciary is necessary but for the job of such onerous nature, effective

assistance is  a  must. Felt needs of time must be addressed. The

system cannot remain static or unconcerned even when problems

are  patent.   As  already  noted  there  appears  to  be  dire  need  to

strengthen the system of timely appointment of Judges, particularly

Chief Justices. Identification of candidates, scrutiny, evaluation and

post appointment performance measurements and conduct are time

consuming  processes  and  at  least  some  independent  full  time

experts  are  required,  if  timely  and  best  appointments  are  to  be

ensured and requisite in-house oversight is to be a reality.  A full

time body consistent with independence of judiciary appears to be

immediate  need for  the system.   Absence thereof  contributes  to

denial of justice.  The Central Government must also ensure that

MOP in pursuance of  order of  this  Court  in  NJAC case dated 16th

28

December, 2015 brings about the improvements in working of the

collegiums as stipulated.

Accountability  in  terms  of  Performance  Measurement  and Righteous  of  Conduct  at  all  levels  of  judicial  hierarchy including Constitutional Courts

41. There is also a need for mechanism to evaluate and compile

performance  of  the  judicial  system  as  per  observations  in  245th

Report  of  the  Law  Commission  so  that  there  is  non-mandatory

timeline for decision of cases and accountability consistent with the

right of speedy justice.   Such mechanism may provide norms for

performance measurement for all judges in the hierarchy.  The same

has to be done without affecting independence of judiciary.  There is

also need for an in-house mechanism manned by experts but with

safeguards consistent with independence of judiciary for measures

against erring Judges other than impeachment as observed in  Re:

Shri Justice CS Karnan (supra).   

Reforms  in  the  legal  profession  –  remedying  uncalled  for strikes.

42. We may also deal  with  another  important  aspect  of  speedy

justice.  It  is  well  known that  at  some places  there  are  frequent

strikes,  seriously  obstructing  access  to  justice.   Even  cases  of

persons  languishing  in  custody  are  delayed  on  that  account.  By

29

every strike, irreversible damage is suffered by the judicial system,

particularly consumers of justice.  They are denied access to justice.

Tax payers’  money is  lost  on account  of  judicial  and public  time

being lost.  Nobody is accountable for such loss and harassment.

43. Dr. Ambedkar in his famous speech on 25th November, 1949

had warned :

“The first thing in my judgement we must do is to hold fast to constitutional  methods of  achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It  means that we must abandon the method of civil  disobedience,  non-cooperation  and satyagraha.  When  there  was  no  way  left  for constitutional  methods  for  achieving  economic and social  objectives, there was a great deal  of justification  for  unconstitutional  methods.  But where constitutional methods are open, there can be  no  justification  for  these  unconstitutional methods.  These  methods  are  nothing  but  the Grammar  of  Anarchy  and  the  sooner  they  are abandoned, the better for us.”

44. The  above  warning  of  the  Constitution  maker  needs  to  be

adhered to at least by the legal fraternity.  The Bar has the tradition

of placing their professional duty of assisting the access to justice

above every other consideration.  How is the situation to be tackled.

Competent authorities may take a final call.

30

45. In  Ex-Capt.  Harish Uppal   versus  Union of  India  and

Anr.33,  this Court held that lawyers have no right to go on strike or

to give a call for boycott of courts nor can they abstain from the

Courts.   Calls  given  by  Bar  Association  or  Bar  Council  for  such

purpose cannot require the court to adjourn the matters.  Strike or

abstaining from court is unprofessional.  Even though more than 15

years  have  passed  after  the  said  judgment  was  rendered,  the

judgment  of  this  Court  is  repeatedly  flouted  and  no  remedial

measures have been adopted.  Regulation of right of appearance in

courts is within the jurisdiction of the courts.  This Court also asked

the  Law  Commission  to  suggest  appropriate  changes  in  the

regulatory  framework  for  the  legal  profession34.   The  Law

Commission has  submitted 266th Report.   The problem continues

seriously affecting the rule of law.

46. In  Mahipal  Singh Rana (supra),  this  court  noted  that  the

High  Courts  can  frame  rules  to  lay  down  conditions  on  which

Advocates can be permitted to practise in Courts.  An Advocate can

be  debarred  from  appearing  in  Court  even  if  the  disciplinary

jurisdiction for misconduct is vested with the Bar Councils35.   This

33 (2003) 2 SCC 45 34 (2016)8 SCC 335 -  Mahipal Singh Rana  versus  State of Uttar Pradesh 35 Paras 20, 30 to 35

31

Court  requested  the  Law  Commission  to  look  into  all  relevant

aspects relating to regulation of legal profession36.

47. The  Law  Commission,  accordingly,  examined  the  relevant

aspects  relating  to  regulation  of  the  legal  profession.  The  Law

Commission  in  its  266th Report  found  that  such  conduct  of  the

advocates  affects  functioning  of  courts  and  particularly  it

contributes to pendency of cases.   It analyzed the data on loss of

working  days  on  account  of  call  of  strikes.   The  analysis  is  as

follows :

“7.2. In the State of Uttarakhand, the information sent by the High Court for the years 2012-2016 shows that in Dehradun District, the Advocates were on strike for 455 days during 2012-  2016 (on an average,  91 days per year). In Haridwar District, 515 days (103 days a year) were wasted on account of strike.  

7.3 In the case of the State of Rajasthan, the High Court of Judicature at Jodhpur saw 142 days of strike during 2012- 2016, while the figure stood at 30 for the Jaipur Bench. In Ajmer District courts, strikes remained for 118 days in the year 2014 alone, while in Jhalawar, 146 days were lost in 2012 on account of strike.  

7.4 The case of Uttar Pradesh appears to be the worst. The  figures  of  strike  for  the  years  2011-2016  in  the subordinate courts are alarmingly high. In the State of Uttar Pradesh, the District courts have to work for 265 days in a year. The period of strike in five years period in worst affected districts has been as - Muzaffarnagar (791 days),  Faizabad  (689  days),  Sultanpur  (594  days), Varanasi  (547  days),  Chandauli  (529  days),  Ambedkar

36 Para 58

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Nagar (511 days),  Saharanpur (506 days) and Jaunpur (510  days).  The  average  number  of  days  of  strike  in eight worst affected districts comes to 115 days a year. Thus,  it  is  evident  that  the  courts  referred  to hereinabove could work on an average for 150 days only in a year.

7.5 In this regard, the situation in subordinate courts in Tamil  Nadu  had  by  no  means,  been  better.  The  High Court  of  Tamil  Nadu  has  reported  that  there  are  220 working days in a year for the courts in the State. During the period 2011-2016, districts like Kancheepuram, 687 days (137.4 days per year); Kanyakumari, 585 days (117 days per year); Madurai, 577 days (115.4 days per year); Cuddalore,  461  days  (92.2  days  per  year);  and Sivagangai,  408  days  (81.6  days  per  year),  were  the most affected by strike called by advocates.  

7.6 As per the responses received from the High Courts of  Madhya  Pradesh  and  Odisha,  the  picture  does  not emerge to be satisfactory.  7.7 The Commission noted that the strike by advocates or their abstinence from the court were hardly for any justifiable  reasons.  It  could  not  find  any  convincing reasons  for  which  the  advocates  resorted  to  strike  or boycott of work in the courts. The reasons for strike call or abstinence from work varied from local,  national  to international issues, having no relevance to the working of the courts. To mention a few, bomb blast in Pakistan school,  amendments  to  Sri  Lanka’s  Constitution, interstate  river  water  disputes,  attack  on  /  murder  of advocate, earthquake in Nepal, to condole the death of their near relatives, to show solidarity to advocates of other  State  Bar  Associations,  moral  support  to movements by social activists, heavy rains, or on some religious  occasions  such  as  shraadh,  Agrasen  Jayanti, etc. or even for kavi sammelan.  

7.8 The Commission is of the view that unless there are compelling  circumstances  and  the  approval  for  a symbolic  strike  of  one  day  is  obtained  from  the  Bar Council  concerned,  the  advocates  shall  not  resort  to strike or abstention from the court work.”

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48. Thereafter, the Law Commission referred to observations in the

judgment of this  Court in  Ex-Capt. Harish Uppal  case (supra)

that there should be no strikes by the Bar except in rarest of rare

situations which should also not exceed one day.  The Bar Councils

were called upon to take appropriate action in the matter.  The Law

Commission  noted  that  the  strikes  were  continuing  and  causing

great obstruction to the access to justice.  It was observed :

“8.3  In  spite  of  all  these,  the  strikes  have  continued unabated. The dispensation of justice must not stop for any  reason.  The  strike  by  lawyers  have  lowered  the image of the courts in the eyes of the general public. The Supreme Court has held that right to speedy justice is included in article 21 of the Constitution. In Hussainara Khatoon v. Home Secy., State of Bihar; and in some other cases, it was held that the litigant has a right to speedy justice. The lawyers’ strike, however, result in denial of these rights to the citizens in the State.  

8.4 Recently, the Supreme Court while disposing off the Criminal  Appeal  of  Hussain  &  Anr.  v.  Union  of  India (2017) 5 SCC 702 deprecated the practice of boycotting the Court observing that:  

“One other aspect pointed out is the obstruction of  Court  proceedings  by  uncalled  for strikes/abstaining of work by lawyers or frequent suspension  of  court  work  after  condolence references. In view of judgment of this Court in Ex. Captain Harish Uppal versus Union of India, such  suspension  of  work  or  strikes  are  clearly illegal and it is high time that the legal fraternity realizes  its  duty  to  the  society  which  is  the foremost. Condolence references can be once in a while periodically say once in two/three months and not frequently. Hardship faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on under trials

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in  custody  on  account  of  such  avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and  they  must  take  appropriate  steps.  In  any case,  this  needs  attention  of  all  concerned authorities  –  the  Central  Government/State Governments/Bar  Councils/Bar  Associations  as well  as  the  High  Courts  and  ways  and  means ought  to  be  found  out  to  tackle  this  menace. Consistent  with  the  above  judgment,  the  High Courts must monitor this aspect strictly and take stringent  measures  as  may  be  required  in  the interests of administration of justice.”  

8.5  In  Ramon  Services  Pvt.  Ltd.  v.  Subhash  Kapoor (2001)1 SCC 118, the apex Court observed that if any advocate claims that his right to strike must be without any loss to him, but the loss must only be borne by his innocent  client,  such  a  claim  is  repugnant  to  any principle  of  fair  play  and  canons  of  ethics.  Therefore, when he opts to strike or boycott the Court he must as well  be  prepared  to  bear  at  least  the  pecuniary  loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.”

49. Examining other aspects of the regulation of legal profession,

the Law Commission recommended review of regulatory mechanism

of the Advocates Act as follows:

“17.1  There  is  a  dire  necessity  of  reviewing  the regulatory mechanism of the Advocates Act, not only in matters of discipline and misconduct of the advocates, but  in  other  areas  as  well,  keeping  in  view  the  wide expanse of the legal profession being involved in almost all areas of life. The very constitution of the Bar Councils and their functions also require the introduction of a few provisions in order to consolidate the function of the bar councils in its internal matters as well.”

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50. Since the strikes are in violation of law laid down by this Court,

the same amount to contempt and at least the office bearers of the

associations who give call for the strikes cannot disown their liability

for contempt.   Every resolution to  go on strike and abstain from

work  is  per  se  contempt.   Even  if  proceedings  are  not  initiated

individually against such contemnors by the court concerned or by

the Bar  Council  concerned for  the misconduct,  it  is  necessary to

provide for some mechanism to enforce the law laid down by this

Court, pending a legislation to remedy the situation.  

51. Accordingly, we consider it necessary, with a view to enforce

fundamental right of speedy access to justice under Articles 14 and

21 and law laid  by this  Court,  to  direct  the Ministry  of  Law and

Justice to present at least a quarterly report on strikes/abstaining

from  work,  loss  caused  and  action  proposed.   The  matter  can

thereafter be considered in its contempt or inherent jurisdiction of

this Court.  The Court may, having regard to the fact situation, hold

that  the  office  bearers  of  the  Bar  Association/Bar  Council  who

passed the resolution for strike or abstaining from work, are liable to

be restrained from appearing before any court for a specified period

or  until  such time as they purge themselves of  contempt  to  the

satisfaction of the Chief Justice of the concerned High Court based

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on an appropriate undertaking/conditions.   They may also be liable

to  be  removed  from  the  position  of  office  bearers  of  the  Bar

Association forthwith until the Chief Justice of the concerned High

Court so permits on an appropriate undertaking being filed by them.

This may be in addition to any other action that may be taken for

the said illegal acts of obstructing access to justice. The matter may

also be considered by this Court on receipt of a report from the High

Courts in this regard. This does not debar report/petition from any

other  source  even  before  the  end  of  a  quarter,  if  situation  so

warrants.

52. We may now sum up our conclusions :

(i) In  the  light of 124th  and  272nd  Reports  of  the  Law

Commission  of  India,  judgment  of  this  Court  in  Gujarat

Urja (supra),  the  Minutes  of  the  Arrears  Committee  of

Supreme Court  dated 8th April,  2017 and all  other  relevant

considerations,  the  concerned  authorities  may  examine

whether there is need for any changes in the judicial structure

by creating appropriate fora to decongest the Constitutional

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Courts so as to realistically achieve the constitutional goal of

speedy justice.

(ii) In view of 14th Report of the Law Commission of India,

judgment  of  this  Court  in  All  India  Judges’  Association

versus  Union  of  India37,  the  Minutes  of  the  Arrears

Committee  of  this  Court  dated  8th April,  2017,  and  the

experience on the subject, pending consideration of issue of

All  India  Judicial  Service,  there  is  need  to  consider  the

proposal  for  central  selection  mechanism  for  filling  up

vacancies in courts other than the Constitutional Courts and

also to consider as to how to supplement inadequacies in the

present system of appointment of judges to the Constitutional

Courts at all levels.

(iii) There  is  need  to  consider  in  the  light  of  observations

hereinabove  and  all  other  relevant  considerations  whether

there should be a body of full time experts without affecting

independence of judiciary, to assist in identifying, scrutinizing

and evaluating candidates at pre-appointment stage and to

evaluate  performance  post  appointment.  The  Government

may also consider what changes are required in the process of

37 (1992) 1 SCC 119

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evaluation  of  candidates  at  its  level  so  that  no  wrong

candidate is appointed. What steps are required for ensuring

righteous conduct of Judges at later stage is also an issue for

consideration.  

(iv) Pending  legislative  measures  to  check  the  malady  of

frequent uncalled for strikes obstructing access to justice, the

Ministry  of  Law  and  Justice  may  compile  information  and

present  a  quarterly  report  on  strikes/abstaining  from work,

loss caused and action proposed.  The matter can thereafter

be considered in the contempt or inherent jurisdiction of this

Court.  The Court may direct having regard to a fact situation,

that the office bearers of the Bar Association/Bar Council who

passed the resolution for strikes or abstaining from work or

took other steps in that direction are liable to be restrained

from appearing before any court for a specified period or till

they purge themselves of contempt to the satisfaction of the

Chief  Justice  of  the  concerned  High  Court  based  on  an

appropriate undertaking/conditions.  They may also be liable

to be removed from the position of office bearers of the Bar

Association forthwith until the Chief Justice of the concerned

High Court so permits on an appropriate undertaking being

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filed by them.  This may be in addition to any other action

that  may  be  taken  for  the  said  illegal  acts  of  obstructing

access to justice. The matter may also be considered by this

Court  on  receipt  of  a  report  from  the  High  Courts  in  this

regard.  This  does  not  debar  report/petition  from any  other

source  even  before  the  end  of  a  quarter,  if  situation  so

warrants.

53. Accordingly,  we dispose of this  appeal in above terms.  We

direct the Union of India to file an affidavit in the light of the above

observations within three months. First report in terms of para 52(iv)

may  be  filed  by  June  30,  2018.  The  matter  may  be  listed  for

consideration of the above affidavit on Wednesday, the 4th July, 2018

before the appropriate Bench.  

…………………………………..J.                           [ADARSH KUMAR GOEL]

…………………………………..J.        [UDAY UMESH LALIT]

NEW DELHI; MARCH 28, 2018.

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