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TMI Blog2012 (2) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The stay order dated 9.4.03 and several orders dated 29.4.03, 30.4.03, 10.10.03, 7.5.04, 26.5.05, 19.9.06, 27.9.06, 6.10.06 & 18.12.08 of the High Court passed thereafter have been impugned in these appeals. 3. The questions which crop up in this case are of serious magnitude and transcend the immediate facts in the appeal and are of great national importance. 4. These appeals are directed against a batch of interlocutory orders passed by a learned Single Judge of Allahabad High Court in Criminal Writ Petition No. 1786/2003 pending before the learned Judge. 5. It appears that by order dated 9.4.2003, the learned Single Judge admitted the writ petition filed by Respondent Nos. 2 and 3 herein and also stayed the order dated 7.12.2002 passed by the Additional Chief Judicial Magistrate, Gautam Budh Nagar whereby direction had been given for registration of case against the said Respondents. Thereafter, the matter has been listed on various days before the High Court but the matter was getting adjourned. As on the date of filing of the SLP, the writ petition had been kept pending for six years. 6. The SLP came up for hearing before this Court on 8.1.2010. This Court was very grea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAL PENDENCY High Court Number of criminal cases by type % share of High Court in total number of cases (1) Murder (2) Rape (3) Kidnap ping (4) Dacoity (5) All (6) (7) Allahabad 144 100 341 68 653 28.6 Andhra Pradesh 46 8 2 4 60 2.6 Bihar 92 36 42 31 201 8.8 Bombay 14 5 4 6 29 1.3 Chhattisgarh 4 0 0 1 5 0.2 Delhi 4 5 2 0 11 0.5 Gauhati 6 5 2 8 21 0.9 Gujarat 56 9 34 16 115 5.0 J & K 4 4 6 0 14 0.6 Jharkhand 18 11 12 0 41 1.8 Karnataka 11 4 4 3 22 1.0 Kerala 12 2 5 1 20 0.9 Kolkata 431 209 21 48 709 31.1 Madhya Pradesh 10 14 1 5 30 1.3 Madras 0 1 2 0 3 0.1 Orissa 111 40 26 10 187 8.2 Punjab & Haryana 17 9 5 1 32 1.4 Rajasthan 23 11 17 5 56 2.5 Uttarakhand 18 19 24 10 71 3.1 All 1021 492 550 217 2280 100 11. It may be seen that the Hon'ble Calcutta High Court has the highest percentage share (31.1%) in total number of cases. It is followed by the Hon'ble High Courts of Allahabad (28.6%), Patna (8.8%) and Orissa (8.2%). Thus, these four High Courts taken together account for 76.9% of all the pendency. 12. Table 2 gives t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cases Average number of times the matter was listed per case Allahabad 653 4.0 Andhra Pradesh 60 3.4 Bihar 201 21.7 Bombay 29 5.1 Chhattisgarh 5 4.3 Delhi 11 12.2 Gauhati 21 17.0 Gujarat 115 13.4 J & K 14 7.7 Jharkhand 41 3.5 Karnataka 22 5.0 Kerala 20 11.4 Kolkata 709 N/A Madhya Pradesh 30 3.0 Madras 3 2.3 Orissa 187 5.8 Punjab & Haryana 32 8.8 Rajasthan 56 7.9 Uttarakhand 71 3.1 All 2280 6.1 18. However, the above analysis was not pursued any further, since there was no way of ascertaining which of the hearings were effective and which were non-effective. Hence, it could be misleading to draw any conclusions from this data. 19. On the basis of the aforesaid data it is clear that problems which the administration of justice faces today is of serious dimensions. Pendency is merely a localized problem, in the sense that it affects some High Courts far more than others. As seen above, just four High Courts in this country amount for 76.9% of the pendency. This may well be because of various social, political and economic factors, which are beyond the scope of the current enquiry by this Court. 20. It is a matter of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively account for the maximum of stay orders. 25. Table below gives the duration for which cases have been pending since the date of the stay order: No. of years passed Number of cases Percentage of cases 0 763 7.2 1 1250 11.9 2 1272 12.1 3 1024 9.7 4-5 2003 19.0 6-7 1125 10.7 8-10 920 8.7 11-15 577 5.5 16-20 648 6.2 21-25 631 6.0 More than 25 314 3.0 All 10527 100.0 26. A perusal of that information reveals that shockingly thirty-two cases have been pending for thirty years or more. 27. The data was also analyzed to ascertain the stage of the proceedings at which stay order was granted. Table below may be seen: Stage at which proceeding stayed Number of cases Percentage of cases Chargesheet 3365 32.0 Appearance 2016 19.2 Summons 1951 18.5 "Further proceedings stayed" 563 5.3 Before charge 380 3.6 Trial 330 3.1 Evidence 323 3.1 Complaints 315 3.0 Cognizance 245 2.3 Disposal 237 2.3 Issue of notice 178 1.7 Others 624 5.9 All 10527 100.0 28. As stated in the First Report and Second Report, the fact-finding exercise directed by this court has revealed a problem of serious concern. It is respectfull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce may no longer be available. Witnesses may not be able to recall the events properly, and some may have moved away or even died. Even the parties to the litigation may not survive. Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man's access to justice. A person's access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public confidence in the justice delivery system and incentivises people to look for short-cuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to Rule of Law. 34. It may not be out of place to highlight that access to justice must not be understood in a purely quantitative dimension. Access to justice in an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving an individual's access to courts, or guaranteeing representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st fraud and overreaching; that people would come to believe that the law - in the larger sense cannot fulfil its primary function to protect them and their families in their homes, at their work place and on the public streets. [See Belekar Memorial Lecture Series, organized by High Court Bar Association, Nagpur. Lecture delivered on August 31, 2002]. 38. Merely widening the access to justice is not enough to secure redress to the weaker sections of the community. Post Independence, it was evident that litigation in India was getting costlier and there was agonizing delay in the process. After the adoption of the Constitution and creation of a Welfare State, the urgency of some structural changes in the justice delivery system was obviously a major requirement. In the 14th Report of the Law Commission under the Chairmanship of the first Attorney General for India, Shri M.C. Setalvad, it was observed as under: In so far as a person is unable to obtain access to a court of law for having his wrongs redressed.... Justice becomes unequal and laws which are meant for his protection fail in their purpose. 39. In a very important discourse Roscoe Pound argued that by responding to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamental and basic human rights in various international covenants and charters. [See Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR)] 44. The right of access to justice is also recognised under Article 67 of the Statute of the International Criminal Court (Rome Statute). 45. In the context of the European Union, Article 47 of the European Charter on Fundamental Rights provides for the right to an effective remedy and to fair trial. With respect to the Council of Europe, the European Convention on Human Rights and Fundamental Freedoms, Article 6 significantly protects this right to access justice. 46. The European Court of Human Rights has held that a broader interpretation must be given to Article 6 (1) of the ECHR laying emphasis on 'right to a fair administration of justice' in the case of Delcourt v. Belgium. ...In a democratic society within the meaning of the Convention, the right to a fair administration of justice hold such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision. [See [1970] ECHR 1.] 47. Article 8 of the Universal Declaration of Human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essure to somehow decide the case and the quality of justice suffers. Therefore, according to him, it is the constitutional duty of both the Central Government and the State Government to provide adequate infrastructure to the judiciary and only an independent commission which functions on a permanent basis can assess the necessity of the required infrastructure and make recommendations to the Government for providing necessary steps which the Government should take to make the Constitutional promise of justice a reality. The learned Amicus developed his argument by referring to various decisions of this Court and also various provisions of the Constitution. He further submitted that the plea of the Government that in view of financial crunch it cannot provide the necessary infrastructure cannot be countenanced by this Court and in support of the said submission he referred to the decision of this Court in the case of R. Ramachandra Rav v. State of Karnataka reported in (2002) 4 SCC 578. The relevant observations made in the said judgment are as follows: ...The law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty or administrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e problem and is seeking to address the same. However, in the course of his arguments the learned ASG took the leave of this Court and filed another affidavit dated 18.1.2012 by Dr. S.S. Chahar, Joint Secretary and Legal Advisor, Ministry of Law and Justice. 56. By filing the said affidavit the learned ASG wanted to urge before this Court that even though the Government is aware of the urgency of the problem and the immediate necessity of addressing it, Government is not willing to accept the suggestion of the learned Amicus for setting-up of a permanent commission for the purposes suggested by the learned Amicus. 57. The learned ASG on the other hand submitted in view of the stand taken by the Central Government in its affidavit dated 18.1.2012 that the existing terms of reference of the 19th Law Commission are wide enough to include within its ambit the question of setting up additional courts for the purpose of tackling the arrears so that access to justice is ensured. In this connection, he referred to the terms of reference of the 19th Law Commission. The said terms of reference are as follows: A. Review/Repeal of obsolete laws: i. To identify laws which are no longer ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to law and judicial administration that may be referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs). I. To consider the requests for providing research to any foreign countries as may be referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs). J. To examine the impact of globalization on food security, unemployment and recommend measures for the protection of the interests of the marginalized. The Commission shall devote, its time bound attention to all issues relating to item (A) of the terms of reference as indicated above, viz., review/repeal of obsolete laws and shall make its recommendations to Government for repeal of obsolete laws and for appropriate amendments in others as may be found necessary ON TOP PRIORITY basis. The Commission shall submit its reports in Hindi and English with sufficient number of copies for being placed on Tables of both houses of Parliament. The Law Commission shall also make its reports available through website or otherwise as soon as reports are submitted to the Government. Various Law Commissions have given about 234 Reports so far. Many of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice: While analyzing the data in aggregated form, this Court cannot overlook the most important factor in the administration of justice. The authority of the High Court to order stay of investigation pursuant to lodging of FIR, or trial in deserving cases is unquestionable. But this Court is of the view that the exercise of this authority carries with it the responsibility to expeditiously dispose of the case. The power to grant stay of investigation and trial is a very extraordinary power given to High Courts and the same power is to be exercised sparingly only to prevent an abuse of the process and to promote the ends of justice. It is therefore clear that: (i) such an extraordinary power has to be exercised with due caution and circumspection. (ii) Once such a power is exercised, High Court should not lose sight of the case where it has exercised its extraordinary power of staying investigation and trial. (iii) High Court should make it a point of finally disposing of such proceedings as early as possible but preferably within six months from the date the stay order is issued. 61. It is true that this Court has no power of superintendence over High Court as the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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