Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjiv Khanna, JJ has directed the short-term measures as suggested by the amicus curiae regarding funding for infrastructure of subordinate judiciary by the Central Government and the State Governments be implemented, while the Central Government responds to the suggestion on long-term measures till next date of hearing.

The Court, hence, directed:

  • the Central Government to release funds within two months to the extent Utilization Certificates have been sent by the respective State Governments and submit compliance report to this Court;
  • the State Government(s) to submit pending utilisation certificate(s) to the Central Government within four weeks and furnish information in the format annexed with the present order within a period of six weeks to this Court;
  • the Central Government may disburse the amounts and/or give response within two months of furnishing pending utilization certificates by the State Government and submit compliance report to this Court;
  • Copies of all reports submitted by the Central Government and the States/UTs to this Court would be simultaneously sent/furnished to Shri Vijay Hansaria, learned Amicus Curiaso so that in case of necessity, appropriate directions may be sought from this Court.

Senior Advocates Shyam Divan, K.V. Vishwanathan and Vijay Hansaria along with Advocate Gaurav Agrawal, were appointed as the amicus curiae.

The Court will next take up the matter on April 29, 2019.

[Malik Mazhar Sultan v. UP Public Service Commission, 2019 SCC OnLine SC 297, order dated 28.02.2019]

Case BriefsSupreme Court

Supreme Court: Terming the inadequacy of judges to be the root cause for the delay in disposal of cases resulting in huge backlog, the 3-Judge Bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ said that until National Court Management Systems Committee (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 prevailing ‘Unit system’ of the High Courts.

Under the ‘Unit system’, weightage is given to cases based on their nature and complexity. 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’. Earlier, the ‘rate of disposal method’ was being applied to resolve this issue. Under the Rate of Disposal Method, the Commission first looked at the current rate at which judges dispose of cases and 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. However, the method was criticized on the ground that 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, absence of witnesses on dates fixed for trial, laxity of police in service of summons, etc.

The Court said 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. It was also said that the 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 norms in relation to their states.

The Court further said that in prescribing the judge strength it is necessary to ensure that a backlog does not result in the future as a result of an increase in annual filings. 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 i.e. wiping out the backlog within a target period of five years.

The Court has requested the NCMSC to submit it’s final report by 31 December 2017. [Imtiyaz Ahmad v. State of U.P., 2017 SCC OnLine SC 7, decided on 02.01.2017]


Case BriefsSupreme Court

Supreme Court: Stating that the High Courts cannot encroach upon the fields that are under the exclusive domain of legislature, the Court said that there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner.

In the present case, a writ of mandamous commanding the competent authorities to take necessary action against the respondent was filed before the Allahabad High Court in relation to alleged fraud in opening bank account by forging signature for obtaining retail licence for liquor shop for which eligibility conditions is that licensee and his family members must possess good moral character and have no criminal background, the High Court had adverted to the methods of investigation and expressed the view that no attempt was made by the investigating officer to find out the genuineness of signature from the hand-writing expert and had further observed that it depicts a very sorry state of affairs of maintenance of law and order in the State and paints a grim picture in which State is functioning, ignoring one of the most important aspects of administration, i.e., public safety, security and maintenance of law and order.

The bench of Dipak Misra and Amitava Roy, JJ noted that the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it.  It was further explained that a Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law. A court cannot take steps for framing a policy.

Hence, it was held that the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. The directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country. [State of Uttar Pradesh v. Subhash Chandra Jaiswal, 2016 SCC OnLine SC 1434, decided on 29.11.2016]

Case BriefsSupreme Court

Supreme Court: In the PIL relating to lack of basic amenities in the Bandipora District Court affecting the proper functioning of Courts where the issue of regularization of employement by the High Court was in question the Court laid down the following principles:

  • Article 235 enables the High Court to exercise complete administrative control over the district judiciary which extends to all functionaries attached to those courts, including ministerial staff and employees on the establishment.
  • Employment in the High Courts or in the courts subordinate to them constitutes public employment.
  • The date on which the vacancies are likely to occur are foreseeable with a reasonable amount of clarity and precision.
  • While the High Court is an autonomous constitutional authority whose status cannot be undermined, it is equally necessary for it to strictly comply with the rules framed in making recruitments.

Explaining the concept of regularization, the Court said that it is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the Scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc Employee the right to seek a writ commanding the State to frame a scheme for regularisation.

The High Court of Jammu & Kashmir had, by order dated 01.12.2015, had observed that over a considerable period of time the state government had not created the required number of posts for the state judiciary as a result of which work has been hampered. According to the High Court, appointment of daily rated workers was necessitated to ensure that judicial work does not suffer. The High Court opined that these workers have been rendering work which should have been assigned to persons appointed on a regular basis against sanctioned posts.

The bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ, noticing that the direction for regularization was issued by the High Court without considering the relevant constitutional and legal principles, said that it is unfortunate that the state government has allowed the requirements of the state judiciary to be neglected over such a long period of time. The need to facilitate the proper functioning of the High Court and the district judiciary is a constitutional necessity which imposes a non-negotiable obligation on the state government to create an adequate number of posts and to provide sufficient infrastructure. The state government is to blame for the unfortunate situation which has resulted in a large number of persons being recruited on a daily wage basis. [State of Jammu & Kashmir v. District Bar Association, Bandipora, 2016 SCC OnLine SC 1435, decided on 08.12.2016]

Case BriefsHigh Courts

Kerala High Court: Taking suo moto cognizance of the recent events, the Division Bench of Thottathil B. Radhakrishnan, Ag. C J. and Anu Sivaram J. directed State Government and State Police that no assembly or demonstration would be allowed in the court premises or on the roads surrounding them.

The Court held that access to justice is an indefeasible component of any society and it can in no manner be belittled by any individual or collective act, impairing or tending to impair the proper functioning of the Courts. Therefore, it is imperative that every seat of judiciary be insulated from any intrusion, as the intrusion would adversely affect the constitutional and societal goals to be achieved in an orderly society by the existence of judicial system. It was held that it is one of the primary duties of the Police wing of the State to maintain law and order and extend support by way of governance, in case where the access to justice is being challenged. The Police had public duty in terms of the Constitution and the statutes, to ensure that there is no impairment whatsoever in the conduct of court proceedings and the facilities for access to justice.

In the light of these observations, the Court directed the Government of Kerala, the State Police Chief and the Police officers under his command to ensure that no assembly or demonstration or collective expression of opinion is carried out within the premises of the High Court and also in the roads and streets surrounding them. It is directed that the restrictions imposed would extend to the use of public announcement system as well. All the restrictions imposed shall operate in regard of all road which surround the buildings of the High Court of Kerala and all leading roads to a distance of 200 meters from the roads that encircle the High Court buildings. The Court also directed that the gist of the order be published in at least two English newspapers and six vernacular dailies, having circulation throughout the State of Kerala. [Court on its own Motion v. State of Kerala, 2016 SCC OnLine Ker 10398, decided on 25 July, 2016.]

Case BriefsHigh Courts

Kerala High Court: Upbraiding the Judicial Magistrate who had remanded the petitioner to judicial custody contrary to its orders, in spite of having been granted pre-arrest bail under Section 438 of the Criminal Procedure Code, the Bench of Sudheendra Kumar, J.  held that once a pre-arrest bail was granted, the same would be in force until either the court or a higher court cancelled the order, on the instance of the Public Prosecutor, on the discovery of new material or circumstances, or of abuse of the indulgence by the accused.

The facts disclosed that the petitioner was arrested on 19.01.2016, and upon being produced the next day before the Judicial Magistrate, he produced the order under Section 438 passed by this Bench of the High Court. This was however disregarded by the Magistrate remanding the petitioner to judicial custody. The Court, upon being appraised of the remand of the petitioner and dismissal of his bail application, sought reasons from the Magistrate which were furnished albeit inadequate in the eyes of the Court. Further remonstrance from this Court led to an apology from the Magistrate.

The Court observed that judicial discipline is necessary for the existence of the judicial system. If judicial officers commit mistakes, the same will undermine the esteem of the judiciary. The judicial officers must be conscious about the importance of personal liberty vis-à-vis social interests and must be careful and diligent while discharging their duties.

The Court cited Jose George v. State of Kerala, 2006 (2) KLT 188, whereby it was held that grant of pre-arrest bail made it clear that the subject was not to be remanded to  judicial custody; Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, which held that the ordinary rule would be to not limit the operation of order under Section 438 CrPC, and allow its continuance to trial, and also that it was for the High Court or Court of Session to apply its mind in petitions for anticipatory bail under Section 438, not for the Judicial Magistrate under Section 43; and Siddharam Satlingappa Mhetre v. State of Maharashtra,  (2011) 1 SCC 694  whereby it was held the interim protection of anticipatory bail must be available till the end of trial unless it is cancelled by the court finding new material, circumstances, or on ‘ground of abuse of indulgence by the accused’. In deficit of any such circumstance, the bail application was allowed. [Nahif Ali v. Station House Officer, 2016 SCC OnLine Ker 5339, decided on March 1, 2016]