Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 254-262 OF 2012

IMTIYAZ AHMAD .....APPELLANT

VERSUS

STATE OF U.P. & ORS. .....RESPONDENTS

J U D G M E N T

Dr D Y CHANDRACHUD, J

These Appeals arise from a batch of interlocutory orders of the Allahabad

High Court in a criminal writ petition (1786 of 2003). On 9 April 2003 a learned

Single Judge of the High Court admitted a writ petition filed by the second and

third respondents and stayed an order dated 7 December 2002 of the Additional

Chief Judicial Magistrate, Gautam Budh Nagar, directing the registration of a

case against them. The case was adjourned before the High Court on several

dates on which it was listed. As a result of the adjournments, on the date of the

institution of the Special Leave Petitions, the writ petition was pending in the High

Court for six years.

2This Court was concerned with the pendency of similar cases before the High

Courts, where proceedings were stayed at the stage of the registration of an FIR,

investigation, framing of charges or during trial, in exercise of the power

conferred by Article 226 of the Constitution or Sections 397/482 of Code of

Criminal Procedure,1973. Hence this Court, by an order dated 8 January 2010

called for reports from the Registrars General of the High Courts, in regard to

Page 2 2

serious cases involving: (i) murder; (ii) rape; (iii) kidnapping; and (iv) dacoity. On

the basis of the data received, reports were presented to the Court by the amicus

curiae. These reports were considered in an order dated 1 February 2012 by a

Bench of two learned Judges, including one of us (the learned Chief Justice of

India). In the order of this Court dated 1 February 2012 the findings in the second

report submitted by the amicus curiae were summarized thus :

Page 3 3

“(a) As high as 9% of the cases have completed

more than twenty years since the date of stay

order;

(b) Roughly 21% of the cases have completed

more than ten years;

(c) Average pendency per case (counted from the

date of stay order till July 26, 2010) works out to be

around 7.4 years;

(d) Charge-sheet was found to be the most

prominent stage where the cases were stayed with

almost 32% of the cases falling under this

category. The next two prominent stages are found

to be “appearance” and “summons”, with each

comprising 19% of the total number of cases”.

3 During the course of the hearing of these proceedings, the Union

Government has been impleaded as a party to the proceedings having regard to

the fact that seminal issues are involved directly impacting upon the

administration of justice. This Court has assumed jurisdiction since the long

delays in the disposal of cases, particularly criminal cases, has a serious impact

both on the rule of law and on access to justice which is a fundamental right

guaranteed under Article 21 of the Constitution.

4 In 1958, the fourteenth Report of the Law Commission of India on the

Reform of Judicial Administration dealt with the issue of delay and arrears and

identified inadequate judge strength as the “root cause” of the problem. This

perspective has been reiterated in several successive reports, including of the

Law Commission. These include the 77

th

Report of the Law Commission of India

Page 4 4

on “Delay and arrears in trial courts”, November, 1978 (Ministry of Law and

Justice, Government of India); 78

th

Report of the Law Commission of India on

“Congestion of under trial prisoners in jails”, February, 1979 (Ministry of Law and

Justice, Government of India); 79

th

Report of the Law Commission of India on

“Delay and Arrears in High Courts and other Appellate Courts”, May, 1979

(Ministry of Law and Justice, Government of India); 121

st

Report of the Law

Commission of India (method of review of judge strength at regular intervals),

1987; 124

th

Report of the Law Commission of India – The High Court Arrears – A

fresh look, 1988; Report of The Arrears Committee (Three Chief Justices

Committee : Kerala, Calcutta & Madras), 1989-90.

5 The 120

th

Report of the Law Commission on Manpower Planning in the

Judiciary (1987) suggested a formula for the fixation of judge strength, adopting a

demographic approach. The Report suggested that demographics should be the

basis for fixation of judge strength. Its rationale was set out thus :

“ As to the possible accusation that the working out

of the ratio of Judges strength per million of Indian

population is a gross measure, the Commission

wishes to say that this is one clear criterion of

manpower planning. If legislative representation

can be worked out, as pointed out earlier, on the

basis of population and if other services of the

State – bureaucracy, police etc. – can also be

similarly planned, there is no reason at all for the

non-extension of this principle to the judicial

services. It must also be frankly stated that while

population may be a demographic unit, it is also a

democratic unit. In other words, we are talking of

citizens with democratic rights including right to

Page 5 5

access to justice which it is the duty of the State to

provide.”

The Report indicated that though the US in 1981 had one-third of India’s

population, it had a judge to population ratio of one hundred seven judges per

million, while in India it was only ten judges per million. The Law Commission

suggested that the judge to population ratio be immediately increased from ten

judges to fifty judges per million. The Report suggested that by 2000 India

should achieve a target of one hundred and seven judges per million (which the

US had in 1981).

6 If these recommendations had been acted upon India would have judge

strength of 1,10,071 in 2000 (with the population of 1028 million) and 1,36,794 as

on 31 December 2015. However, the sanctioned strength of the judiciary at all

levels on 31 December 2015 was only 21,607.

7 This Court in a judgment delivered on 21 March 2002 in All India Judges

Association v. Union of India

1

endorsed the views of the Law Commission in its

120

th

Report and directed that a judge to population ratio of fifty judges per million

be achieved within a period of five years and not later than ten years in any case.

This Court observed :

“The increase in the Judge strength to 50 Judges

per 10 lakh people should be effected and

implemented with the filling up of the posts in

phased manner to be determined and directed by

the Union Ministry of Law, but this process should

1

(2002) 4 SCC 247

Page 6 6

be completed and the increased vacancies and

posts filled within a period of five years from today.

Perhaps increasing the Judge strength by 10 per

10 lakh people every year could be one of the

methods which may be adopted thereby

completing the first stage within five years before

embarking on further increase if necessary”.

The Report of the Parliamentary Standing Committee on Arrears in Courts (2002)

supported the application of the demographic norm as the starting point for

determination of judge strength. In a letter dated 2 April 2013, the then Prime

Minister of India also accepted the recommendation of the Chief Justice of India

to double the existing number of courts. When this issue was taken up at the

Joint Conference of Chief Ministers and Chief Justices in 2013 it was resolved to

create new posts of judicial officers with requisite staff and infrastructure.

8 In order to address the issue of arrears, a policy decision was taken by the

Union government to constitute fast track courts and funds were allocated under

the Eleventh Finance Commission for a period of five years (2000-05). When the

issue of the discontinuation of fast-track courts came up, this Court in Brij

Mohan Lal v. Union of India

2

held that the policies of the State should not

derogate from undermining judicial independence and if a policy was

counter-productive or liable to increase the case load, the court intervene

judicially. Though this Court desisted from interfering with the policy decision in

regard to discontinuing fast track courts, keeping in mind the huge pendency of

2

(2012) 6 SCC 502

Page 7 7

cases, a direction was issued for the creation of additional posts in the district

judiciary to the extent of ten per cent of the total regular cadre within a stipulated

period.

9 In a recent Report prepared by the Centre for Research and Planning of

the Supreme Court of India titled “Subordinate Courts of India : A Report on

Access to Justice 2016” a detailed analysis has been made of the pendency of

cases in the district judiciary. The following table which has been compiled in the

Report shows the figures of institution, disposal and pendency in the district

judiciary for 2013-15 :

Year Opening

Balance

Institution Disposal Pendency Cases

more than

5 Yrs Old

Criminal

Cases

more than

5 Yrs Old

Sanctioned

Strength

Working

Strength

Vacancy

2015

2014

2013

2,65,09,688

2,68,39,293

2,69,07,252

1,90,44,877

1,92,81,971

1,86,70,907

1,83,78,256

1,93,28,283

1,87,37,745

2,71,76,029

2,64,88,408

2,68,38,861

62,01,794

64,29,011

59,80,700

43,19,693

44,13,011

41,80,216

20,558

20,174

19,526

16,176

15,585

15,128

4,382

4,589

4,398

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

cases, the Report concludes thus :

“The 2013-2015 statistics show that the judicial

system is able to tackle the flow of fresh cases. In

2013, the institution was 1.86 crore with the

disposal of 1.87 crore cases. In 2014 the institution

stood at 1.92 crore and disposal at 1.93 crore

cases and in 2015 the figure of institution was 1.90

crore while disposal was 1.83 crore. Over the last

3 years period, the pendency has remained at 2.68

crores, 2.64 crores, and 2.74 crore cases

respectively. In contrast to these figures, the Indian

Page 8 8

subordinate judiciary has a sanctioned judicial

workforce of merely 20,558 officers and a working

strength of 16,176 officers. Keeping these figures

in mind, it is simple arithmetic to conclude that the

existing judicial officers are not sufficient to keep

pace with the existing situation”.

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

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

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

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

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

five years.

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

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

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

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

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

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

I.Appointment of Court Managers in High Courts and

Sub-ordinate Courts.

II.Vision Statement and Action Plan adopted by the

National Consultation for Strengthening the Judiciary

towards Reducing Pendency and Delays.

III.Preparation of National Arrears Grid.

IV.National Mission for Justice Delivery and Legal

Reforms.

Page 9 9

V.National and State Legal Service Authorities

constituted under Legal Service Authorities Act, 1987.

VI.National Court Management System (as proposed by

the Chief Justice of India).

The terms of reference of the 19

th

Law Commission (adverted to by the Union

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

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

the terms of reference was :

“H.To consider and to convey to the Government

its views on any subject relating to law and judicial

administration that may be referred to it by the

Government through Ministry of Law and Justice

(Department of Legal Affairs)”.

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

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

additional courts and providing additional infrastructure for ensuring access to

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

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

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

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

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

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

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

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

Page 10 10

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

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

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

Management Systems Committee (NCMSC) was requested to examine the

recommendations made by the Law Commission and to formulate its

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

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

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

disposal method suggested by the Law Commission.

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

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

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

method, the Law Commission seeks to address two concerns :

i)the large existing backlog of cases; and

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

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

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

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

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

Page 11 11

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

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

“For the present, and based on the information we

currently have, the Commission has used the Rate

of Disposal Method to calculate the number of

additional judges required to clear the backlog of

cases as well as to ensure that new backlog is not

created. Under this method, two concerns are

addressed : (a) There is a large existing backlog of

cases and (b) New cases are being instituted daily

which are adding to the backlog..

In order to address both these concerns, we use

the Rate of Disposal Method to provide for two sets

of judges : (a) Number of judges required to

dispose of the existing backlog and (b) Number of

judges required for ensuring that new filings are

disposed of in a manner such that further backlog

is not created.

Under the Rate of Disposal Method, the

Commission first looked at the current rate at

which judges dispose of cases. Next we

determined how many additional judges working at

a similar level of efficiency would be required so

that the number of disposals equals the number of

institutions in any one year time frame. As long as

the institution and disposal levels remain as they

currently are, the Courts would need these many

additional judges to keep pace with new findings in

order to ensure that newly instituted cased do not

add to the backlog..

Second, working with the current rate of disposal of

cases per judge, we also looked at how many

judges would be required to dispose of the current

backlog. We have defined the backlog as those

cases which have been pending in the system for

more than a year.”

The method has been explained thus :

“(1)The method calculates the number of judges

required in each cadre of subordinate Court

judges, i.e., Higher Judicial Service, Civil Judge

Page 12 12

Senior Division and Civil Judge Junior Division. For

each of these three cadres we have separately

analyzed figures for institution, disposal and the

working strength of judges, from 2010 to end-2012.

(2) Disposals for one cadre of judges (e.g., Higher

Judicial Service) is divided by the working strength

of judges in that cadre. Working strength refers to

sanctioned strength minus vacancies and

deputations. This division gives us the annual Rate

of Disposal per judge in a cadre for each year from

2010 to 2012. The average of this annual rate of

disposal figures gave us the Average Rate of

Disposal per judge in that cadre.

(3) We take an average of the annual institutions

before each cadre of judge for the years 2010-12.

The average institution is divided by the Average

Rate of Disposal per judge for that cadre to give us

the number of judges required to keep pace with

the current filing, and ensure that no new backlog

is created. We call this figure the Break Even

Number.

(4) Subtracting the current number of judges from

the Break Even Number gives us the Additional

Number of Judges required to ensure that the

number of disposals will equal the number of

institutions.

(5) The backlog for a particular cadre of judges

(defined as all cases pending before that cadre of

judges for more than a year) is then divided by the

rate of disposal for that type of judge. This gave us

the number of judges required to clear the backlog

within a year. Dividing this number by 2 gives the

number of judges required to clear the backlog in 2

years, and so forth.”

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

Breakeven can be represented as follows :

ARD = [(D2010/J2010)+(D2011/J2011)+ (D2012/J2012)]/3

BEJ=(AI/ARD)-J

Page 13 13

Where,

BEJ= Additional No. of Judges required to Break Even.

AI= Average Institution

ARD= Average Rate of Disposal

D2010, D2011, D2012 = Annual Disposal for that year

J2010, J2011, J2012 = Annual Working Strength of Judges for that year

J= Current Working Strength of Judges

The formula for determining the Number of Judges for disposing of Backlog required to dispose of pending cases within a given time

period is:

AJBk = (B/ARD)/t

Where,

AJBk= No. of Judges for disposing of Backlog

B= Backlog, defined as the number of cases pending for more than a year.

t= The time frame, in number of years, within which the backlog needs to be cleared”.

12The Law Commission has noted that in the past, it was suggested that

judges required to dispose of the backlog are needed only until the backlog is

cleared. Hence, it was proposed that short-term, ad-hoc appointments should be

made from amongst retired judges for clearing the backlog. However, the

previous experience of the functioning of ad hoc appointments in the district

judiciary reflected serious concern especially of the lack of accountability in their

functioning and performance. Moreover, additional infrastructure would be

required to be created even for ad-hoc judges appointed in the system. The

proposal to have a shift system has been resisted by the Bar since it results in an

increase in the working hours.

13The note submitted by Professor Dr G Mohan Gopal raises certain

concerns about the rate of disposal method suggested by the Law Commission.

These concerns as set out in the note submitted by him, are summarized below :

Page 14 14

i)The definition of backlog (difference between institution and disposal) does

not take into account the fact that every case requires a reasonable period for

its disposal based on the nature of the dispute involved in that case. Under

the above definition, even cases which have been filed towards the end of a

year must be disposed of by 31 December to eliminate the backlog. In the

absence of established time frames in our system for disposal of cases the

elimination of a backlog is virtually unimplementable since it is impossible for

courts to dispose of cases filed days or weeks before the end of a specified

reference period;

ii)The rate of disposal method unintentionally incentivizes lower disposals

because lower the rate of disposal, the greater the number of additional

judicial positions which that court will get under this methodology. The

method proposed by the Law Commission is (according to the critique) not

designed to improve productivity nor does it concern itself with judge to case

ratio;

iii)The rate of disposal method does not give weightage to cases based upon

their nature and complexity and all types of cases are treated at par. Complex

cases require greater amounts of judicial time and effort than simple cases;

iv)The rate of disposal method does not take into account the reasonableness of

the work load of judges. Any assessment of judge strength must take due

account of the “maximum permissible reasonable work load” for a judge

before mental and physical fatigue start impairing the quality of working;

Page 15 15

v)Merely focusing upon the reduction of backlog is not adequate since what is

required is a scientific method to assess the judge strength needed to deal

with the backlog as well as the flow of new cases.

14NCMSC has suggested that the clearance of backlog is not the sole or

central basis for determining judge strength. Several other critical parameters

include (i) rate of case clearance: the number of cases disposed of as a

percentage of institution; (ii) on time disposal rate – the percentage of cases

resolved within an established time frame; (iii) pre-trial custody periods wherein

an under-trial is in custody pending trial of a criminal case; and (iv) trial date

certainty – the proportion of important case processing provisions that are held

according to the schedule finalized. Professor Dr G Mohan Gopal suggests that

the rate of disposal method does not make a substantial departure from past

approaches that have not yielded desired results.

15The Chairperson of NCMSC has proposed an interim approach which

augments the disposal rate method of the Law Commission with the prevailing

unit system of the High Courts to attribute a weightage to cases based on their

nature and complexity. Under the unit system the High Courts have established

disposal norms for the district judiciary based on units allocated for disposal of

different cases. On the basis of the units prescribed, performance is rated from

“excellent” and ‘very good’ to ‘unsatisfactory’. The approach which has been

suggested, based on the unit system, is as follows :

Page 16 16

“Applying The Unit System to Assess Required

Judge Strength

(i)Number of judges required to dispose of the

annual “flow” of new cases (“break even”)

25. Every court should calculate in units its average

annual filing over the previous five years for all types of

cases.

26. Divide the annual filing units above by the number

of annual units required to be disposed of by a judge

for VERY GOOD performance.

27. This will give for each court, the number of judges

required to ensure “break even”, i.e., disposal equals

the number of new cases filed every year in that court.

(ii)Number of judges required for disposal of

backlog of cases

28. First, every court should calculate in units its

“backlog”, i.e. the number of cases of all categories

pending for more than the maximum time standard set

by it for disposal (e.g., three years)

29. Second, a suitable time period may be established

within which this “backlog” should be cleared (e.g. 5

years).

30. Third, divide the total backlog in units by the

number of years within which it has to be cleared (e.g.,

5 years). This will give the required annual disposal of

“backlog”.

31. Fourth, divide the required annual disposal of

backlog by the number of annual units required to be

disposed of by each judge (units required for VERY

GOOD performance).

32. This gives the number of judges required to

dispose of “the backlog” within the prescribed time

frame.

33. The judge strength so assessed should be

monitored annually.

34. Needless to say, it will be desirable that unit

systems are rationalized and strengthened with as

much uniformity of approach across the country as

feasible, addressing variations and limitations of

systems currently in place.

iii. Total number of judges required for achieving

“break even” plus “disposal of backlog”

Page 17 17

35. Add the number of Judges required for “break

even” to the number of Judges required for disposal of

backlog, as determined above.

iv. Trigger for creation of new courts

36. When for any court, the total number of units

required to be disposed annually (“breakeven” plus

backlog, if any) is greater than 1.5 times the disposal

norm for a “very good performance” judge, a new court

would need to be created.”

16While evaluating the limitations of the rate of disposal method suggested

by the Law Commission which have been noted in the report submitted by the

Chairperson, NCMSC, certain aspects would have to be borne in mind. The

criticism that the rate of disposal method places an incentive on lower disposals

in certain courts has its own limitations. A lower rate of disposal may not

necessarily reflect upon the efficiency with which a judge has conducted the

court. Trials are held up because of a paucity of public prosecutors. Witnesses

cited by the state, particularly police personnel, remain absent on dates fixed for

trial, resulting in delays. Service of summons is delayed because of the laxity of

police. In several northern states, particularly, the State of Uttar Pradesh soaring

summer temperatures have in the absence of basic infrastructural facilities

including continuous power supply resulted in the institutionalization of morning

courts in several districts. The convenience of ordinary litigants and witnesses

with limited resources, who travel from afar without proper means of

transportation cannot be disregarded by the presiding judicial officer.The

functioning of courts which lack even rudimentary infrastructure is affected, as a

Page 18 18

result. In a number of states, it has been the experience that there are

impediments faced by the district courts including strikes of lawyers and

abstention from work for causes unrelated to the functioning of the judge or court

concerned. The loss of mandays on account of such causes results in a wastage

of productive judicial time. Hence, it would not be correct to assert that the rate

of disposal method places an incentive upon the unproductive or inefficient.

Ground realities cannot be ignored merely on the basis of statistics.

17Another aspect which merits emphasis is that while prescribing units for

disposal, a robust attempt must be made by the High Courts to ensure that due

importance is given to the disposal of old cases. The units prescribed for disposal

must provide adequate incentives to attend to complex and time consuming

cases. Failing this, the out-turn proscribed for the district judiciary is attempted to

be achieved without due attention being given to the disposal of those cases

which remain pending for long as a result of their complexity, the number of

witnesses involved and such other factors. This is an aspect which needs to be

looked into by the High Courts in consultation with the district judiciary. District

judges with long years of experience in the service are in a position to appreciate

practical realities and to indicate the manner in which the unit system can be

revised in each state to encourage judges at both the trial and the appellate level

to take up those cases which consume judicial time and which should not be

placed on the back-burner for fear that the judge will not be able to fulfill the units

expected. The Chief Justices should initiate the process of revising unit based

Page 19 19

norms in relation to their states. Each state has its own requirements specific to it

which have to be borne in mind. The unit system must be framed so as to

recognize the output of judicial officers in disposing of those cases which clog the

system.

18In prescribing the judge strength it is necessary to ensure that a backlog

does not result in the future as a result of an increase in annual filings. The rate

of increase in future filings has to be anticipated. Anticipation of what the future

holds is an estimate. One method of estimating the extent of the increase in

future filings is to have regard to the increase reflected over a comparable period

in the past for which data is available. Those figures can be extrapolated to

determine the increase in annual filings. The enhancement in the strength of the

district judiciary should be such that a ‘five plus zero’ pendency is achieved

(wiping out the backlog within a target period of five years).

19In response to the recommendations submitted by the Chairperson,

NCMSC, an affidavit has been filed on behalf of the Union of India in the Ministry

of Law and Justice. The Union government has stated that while it is broadly in

agreement with this approach, the methodology suggested by NCMSC can be

adopted subject to certain stipulations. The relevant part of the response is

extracted below :

“6. The Ministry of Law and Justice, Government of

India is broadly in agreement with the

recommendations made by NCMS Committee as

indicated above. The methodology suggested by

Page 20 20

NCMS Committee can be adopted for determining

the adequacy of judge strength with following

stipulations.

(i) All High Courts must evolve uniform data

collection and data management methods

under the ongoing E-Courts Mission Mode

Project and make available online Real time

Data on pendency of various categories of

cases to the respective State Governments

and Central Government.

(ii) The trigger for creation of new posts

must be activated only after 90% of the

sanctioned strength has been filled up,

failing which the creation of additional posts

will have no impact or consequence on

reduction of pendency”.

20The report which has been submitted to this Court by the Chairperson,

NCMSC observes that in the long term, the judge strength of the courts in the

district judiciary will have to be assessed by a scientific method to determine the

total number of judicial hours required for disposing of the case load of each

court. In the interim, a weighted disposal approach, as explained above has

been suggested. Since the Union government is broadly in agreement with this

approach, we deem it appropriate and proper to permit it to be utilized at this

stage for the purpose of determining the required judge strength of the district

judiciary. The Union government has, however, suggested two broad stipulations.

The first is that all the High Courts must make available real time data on the

pendency of various categories of cases. In this regard, both the NCMSC as well

as E-Committee are actively engaging with the High Courts. An endeavour

Page 21 21

should be made to ensure that real time data is duly compiled and made

available online by the High Courts as part of the National Judicial Arrears Grid.

We are not inclined to accept the second stipulation that new posts should be

created only after 90 per cent of the sanctioned strength has been filled up. For

one thing, filling up of vacancies in the district judiciary is an on-going process.

In many states, the process of filling up posts is pursued in conjunction with the

State Public Service Commissions. Many of the delays are not in the control of

the High Courts. Moreover, it is necessary to provide for the required judge

strength in every state district judiciary so as to facilitate the creation of

infrastructure. In several states, the available infrastructure is inadequate and

insufficient to meet even the existing judge strength. Hence, a scientific

assessment of the required judge strength will form the basis of ensuring that the

state governments put into place the infrastructure required for tackling judicial

delays.

21By an order of this Court dated 29 November 2016, this Court had

permitted the Union government to place on the record the following information

in regard to funds made available by the Fourteenth Finance Commission for

meeting the needs of the state judiciary and the modalities for disbursement and

utilisation :

“i) Whether any break-up of the said allocation has

been provided for by the Finance Commission

and/or Government of India or any guidelines as to

Page 22 22

the areas in which the said amount will be

expended.

ii) In case such a break-up is prescribed, a copy of

the communication/order under which the same

has been provided be placed on record.

iii) What is the manner by which the Government of

India proposes to monitor the utilization of the

amount set apart for judiciary by the States. State

wise allocation be also indicated.”

In pursuance of these directions, an affidavit has been filed on behalf of the

Union Ministry of Law and Justice. The affidavit indicates that the Department of

Justice had submitted the following proposals to the Fourteenth Finance

Commission involving a total requirement of Rupees 9749 crores :

I.Pendency Reduction : Rs.858.83 crore

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

III.Establishment of Family

Courts in districts without

such courts : Rs.541.06 crore

IV.Re-designing existing

court complexes to become

more litigant friendly : Rs.1400 crore

V.Augmenting technical

support for ICT enabled courts : Rs.479.68 crore

VI.Scanning and Digitalisation

of Case Records of High Courts

and District Courts : Rs.752.50 crore

VII.Enhancing Access to Justice

i)Support for Law School

based Legal Aid Clinics with

focus on undertrials : Rs.50.50 crore

ii)Organizing Lok Adalats : Rs.93.61 crore

iii)Support for Mediation

/conciliation in ADR centres : Rs.300 crore

iv)Incentives to Mediators

/Concilators : Rs.503.44 crore

VIII.(a) Training and capacity

building of judges, public

Page 23 23

prosecutors, mediators,

lawyers: Refresher, ongoing : Rs.550 crore

(b) Establishment of

State Judicial Academies

in Manipur, Meghalaya and

Tripura : Rs.75 crore

Total Cost : Rs.9749 crore”

State-wise and sector-wise details have been annexed to the affidavit. The

Fourteenth Finance Commission endorsed the proposals of the Department of

Justice and has urged the state governments to use the additional fiscal

allocation provided in the form of tax devolution to meet the requirements of the

state judiciaries. The Prime Minister of India has addressed a letter dated 23 April

2015 to the Chief Ministers calling upon them to allocate funds required for the

activities recommended by the Fourteenth Finance Commission in the state

budgets from 2015-2016 to improve the working of the judicial system and

provide speedy justice. Following the joint conference of Chief Justices of High

Courts and Chief Ministers of States held in April 2015, the Union Minister of Law

and Justice addressed letters to the Chief Justices and Chief Ministers in June

2015 requesting them to institute a mechanism for regular interaction to resolve

outstanding issues particularly those relating to infrastructure and man-power

needs of the judiciary. It may be noted here that at the Conference of Chief

Justices of High Courts held in April 2016, the following resolution was adopted :

“Resolved that the following strategy be adopted

by the High Courts:

Page 24 24

i)Constitution of a dedicated cell for the utilization of

funds. The composition of the Cell should consist of

policy makers, experts in planning and budgeting,

senior judicial officers and persons to be nominated

by the Chief Justice. The Cell shall be assigned the

task of:

(a) Preparing perspectives/annual plans and time

lines;

(b) Drawing up budget estimates;

(c) Monitoring and review of the implementation of

each scheme;

(d) Taking up the matter with the State Government to

ensure release of funds.

ii)Submitting a request for funds from the State

Government within time for financial years 2016-17 to

2019-2020;

iii)Ensuring that funds are spent in accordance with the

budgetary allocation and speedy and effective

utilization. For this purpose, periodical meetings and

reviews be conducted; and

iv)Monitoring of schemes and outcomes through special

on-line portals and ICT tools. Progress made be

reviewed in State Court Management System

meetings and quarterly progress reports be

forwarded to the Supreme Court for review by

National Court Management System”.

Thereafter, in the Conference of Chief Justices and Chief Ministers, the following

resolution was adopted :

“With a view to facilitate proper and timely

utilization of funds made available by the 14

th

Finance Commission to the State judiciaries, it was

resolved that:

(i)Finance Secretaries of each State be

associated with the work of the High Court

committees in-charge of monitoring 14

th

Finance Commission funds;

(ii)Proper coordination be ensured between the

Central and State Governments in regard to

the submission of utilization certificates in

Page 25 25

relation to infrastructure projects of the state

judiciaries;

(iii)In respect of the e-Court Scheme and

Infrastructure scheme which are being

monitored by the Department of Justice,

intimations of funds remitted to the State

Governments under these two Schemes shall

also be forwarded by the Department of

Justice to the High Courts.

(iv)State Governments shall (i) lend such

assistance to the High Courts as is required for

proper utilization of 14

th

Finance Commission

funds; and (ii) grant a one time exemption for

2016-17 to facilitate proper utilization”.

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

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

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

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

addressed to the Chief Justices on 26 September 2016. The affidavit explains

that necessary mechanisms have been set up under the resolutions of the

Conference of Chief Justices and Chief Ministers and of the Chief Justices

respectively.

22Having regard to the above background, we now proceed to formulate our

directions in the following terms :

i)Until NCMSC formulates a scientific method for determining the basis

for computing the required judge strength of the district judiciary, the

judge strength shall be computed for each state, in accordance with the

Page 26 26

interim approach indicated in the note submitted by the Chairperson,

NCMSC;

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

31 December 2017;

iii)A copy of the interim report submitted by the Chairperson, NCMSC

shall be forwarded by the Union Ministry of Law and Justice to the Chief

Justices of all the High Courts and Chief Secretaries of all states within

one month so as to enable them to take follow-up action to determine

the required judge strength of the district judiciary based on the

NCMSC interim report, subject to what has been stated in this

judgment;

iv)The state governments shall take up with the High Courts concerned

the task of implementing the interim report of the Chairperson, NCMSC

(subject to what has been observed above) and take necessary

decisions within a period of three months from today for enhancing the

required judge strength of each state judiciary accordingly;

v)The state governments shall cooperate in all respects with the High

Courts in terms of the resolutions passed in the joint conference of

Chief Justices and Chief Ministers in April 2016 with a view to ensuring

expeditious disbursal of funds to the state judiciaries in terms of the

devolution made under the auspices of the Fourteenth Finance

Commission;

vi)The High Courts shall take up the issue of creating additional

infrastructure required for meeting the existing sanctioned strength of

Page 27 27

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

recommendation of NCMSC;

vii) The final report submitted by NCMSC may be placed for consideration

before the Conference of Chief Justices. The directions in (i) above

shall then be subject to the ultimate decision that is taken on receipt of

the final report; and

viii)A copy of this order shall be made available to the Registrars

General of each High Court and to all Chief Secretaries of the States for

appropriate action.

23List the proceedings for disposal of the criminal appeals before the

appropriate bench in the third week of July 2017.

…........................................CJI

[T S THAKUR]

............. …...............................J

[Dr D Y CHANDRACHUD]

................................................J

[L NAGESWARA RAO]

New Delhi

January 02, 2017.