Case BriefsSupreme Court

Supreme Court: Activating the “dormant” Article 224A of the Constitution, the 3-judge bench of SA Bobde, CJ and Sanjay Kishan Kaul and Surya Kant, JJ has issued some general guidelines for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent.

While the discretion of the Chief Justice of the High Court under Article 224A is not, the Court stated that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments.

GUIDELINES

i. Trigger Point for activation of Article 224A:

The Trigger Point cannot be singular and there can be more than one eventuality where the it arises

  1. If the vacancies are more than 20% of the sanctioned strength.
  2. The cases in a particular category are pending for over five years.
  3. More than 10% of the backlog of pending cases are over five years old.
  4. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.
  5. Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

ii. Embargo Situation:

If recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise.

As per data, there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021; seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline.

“Thus, the parameter we have adopted is that, at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A.”

iii. Pre-recommendation process:

  1. Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog.
  2. The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court.

iv. Methodology of Appointment:

Para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution must be followed to see the progress made and impediments, if any. However, since the Judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB or other agencies would not arise in such a case, which would itself shorten the time period.

v. Time to complete the process:

The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required to complete the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution of India. Since there are a number of aspects not required to be adverted to for appointment under Article 224A, a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance for such appointment.

vi. Tenure of Appointment:

The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment should be for a period between two to three years.

vii. Number of Appointments:

At least, for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court.

viii. Role of ad hoc Judges:

  • More than five year old cases to be assigned to the ad hoc Judges so appointed. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, keeping the primary objective to deal with long pending arrears in mind.
  • A division bench of ad hoc Judge and sitting Judge in matters to be heard by Division Bench not to be constituted. The Division Bench, at present, may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them.
  • Because of the very nature of the profile and work to be carried out by ad hoc Judges, it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance.

ix. Emoluments and Allowances:

For all practical purposes the ad hoc Judge would receive the same emoluments, allowances and benefits as are admissible to the permanent/additional Judges.”

  • The emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension.

“This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms of the aforesaid guidelines.”

  • Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances.

“… it is a misconceived notion that there will be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in, the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and, thus, the existence of vacancies actually results in the savings for the State Government(s), which would otherwise be amount expended as their allowances and perks.”

  • All allowance/perks/perquisites as are admissible to the permanent/additional Judge(s) would be given to the ad hoc Judge(s).
  • As far as housing accommodation is concerned, either the rent-free accommodation should be made available or the housing allowance should be provided on the same terms and conditions.

The Court concluded with the following words,

“We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring/retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise, we will endeavour to iron them out.”

[Lok Prahari v. Union of India, WRIT PETITION (C) NO. 1236 OF 2019, decided on 22.04.2021]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: Noticing that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution bench of SA Bobde, CJ and L. Nageswara Rao, BR Gavai, AS Bopanna and S. Ravindra Bhat, JJ has directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

The Court explained that in a case tried summarily in which the accused does not plead guilty, it is sufficient for the Magistrate to record the substance of the evidence and deliver a judgment, containing a brief statement of reasons for his findings. There is a restriction that the procedure for summary trials is not to be applied for any sentence of imprisonment exceeding three months. However, Sections 262 to 265 of the Code were made applicable “as far as may be” for trial of an offence under Chapter XVII of the Act, notwithstanding anything contained in the Code.

“It is only in a case where the Magistrate is of the opinion that it may be necessary to sentence the accused for a term exceeding one year that the complaint shall be tried as a summons trial.”

However, considering the the responses of various High Courts, the Court noticed that the conversion by the Trial Courts of complaints under Section 138 from summary trial to summons trial is being done mechanically without reasons being recorded.

“The result of such conversion of complaints under Section 138 from summary trial to summons trial has been contributing to the delay in disposal of the cases.”

Further, the second proviso to Section 143 mandates that the Magistrate has to record an order spelling out the reasons for such conversion. The object of Section 143 of the Act is quick disposal of the complaints under Section 138 by following the procedure prescribed for summary trial under the Code, to the extent possible.

“The discretion conferred on the Magistrate by the second proviso to Section 143 is to be exercised with due care and caution, after recording reasons for converting the of the complaint from summary trial to summons trial. Otherwise, the purpose for which Section 143 of the Act has been introduced would be defeated.”

Listing the matter for further consideration after 8 weeks, the Court concluded:

1) The High Courts to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.

2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.

3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.

4) Suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.

5) The High Courts to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.

6) Trial Courts have no inherent power to review or recall the issue of summons. However, this does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court’s notice that it lacks jurisdiction to try the complaint.

7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.

On 10.03.2021, a Committee with Hon’ble Mr. Justice R.C. Chavan, former Judge of the Bombay High Court, as the Chairman was formed to consider various suggestions that are made for arresting the explosion of the judicial docket.

8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.

The aforementioned directions came in the case relating to “Expeditious Trial of Cases under Section 138 of N.I. Act 1881” in the light of the humongous pendency of complaints under the said provision.

The preliminary report submitted by the Amici Curiae showed that as on 31.12.2019, the total number of criminal cases pending was 2.31 crores, out of which 35.16 lakh pertained to Section 138 of the Act. The reasons for the backlog of cases, according to the Amici Curiae, is that while there is a steady increase in the institution of complaints every year, the rate of disposal does not match the rate of institution of complaints.

[In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881, 2021 SCC OnLine SC 325, decided on 16.04.2021]


Appearances before the Court by:

Amici Curiae: Senior Advocate Siddharth Luthra and advocate K. Parameshwar

Tushar Mehta, Solicitor General of India and Vikramjit Banerjee, Additional Solicitor General of India,

Advocate Ramesh Babu for the Reserve Bank of India

Advocate Dr. Lalit Bhasin for the Indian Banks’ Association.

Hot Off The PressNews

On 04.08.2017, the 3-judge bench of JS Khehar, CJ and AK Goel and AM Khanwilkar, JJ indicated that the Court was inclined to go ahead with a proposal for a centralised selection mechanism for appointment of judicial officers in the subordinate judiciary even if there was no amicable consensus among various the high courts and the states. The Court said that  it wanted professional people to come into the judiciary so that they could do something for the institution. The matter was taken up suo motu by the Court after a letter was written to the Secretary General of the Supreme Court by Secretary (Justice) Snehlata Shrivastava at the Centre.

Stating that citizens should have confidence in the judiciary, the Court said that no country can progress if there is no functional and effective judiciary. No person from abroad would like to come to India and contest his case for 15 years. The Court said that, if required, it will have a day-long hearing on the issue on August 22 to resolve the objections of various States and High Courts to the proposal.

CJI said that the Court was inclined to pass an order after reaching an amicable consensus but if the objections persist, it may still pass the orders. Asking the Registry to send a “concept note” of the proposal allaying the objections to all the registrars general of the High Courts and the Secretaries of the Law Ministries of all the States, the Court said that the High Courts and the Secretaries of the Law Ministries of all the States should put the concept note on their websites to seek suggestions from the public and after analysis forward it to the apex court before August 17.

Solicitor General Ranjit Kumar presented 4 suggestions of the Union of India:

  • Examination should have a commercial law paper along with other subjects.
  • There should be a test to check the technology proficiency of the candidate
  • The Union Public Service Commission (UPSC), being a professional independent body having experience, should conduct the examination.
  • The cost should be shared by the Centre and the States on a fifth-fifty basis.

The bench, however, disagreed with this suggestion of the solicitor general, saying it would amount to interfering in the federal structure as the syllabus for the exam was a State subject. These change of papers, marks, syllabus are small changes which could be given effect by modifying the order, when the need arises.

On 28.07.2017, the Court had asked Senior advocate Arvind Dattar, assisting the court as an amicus curiae, to prepare the concept note on the proposal after Andhra Pradesh, Kerala, Uttarakhand and Calcutta high courts raised their objection on account of language and reservation criteria. The bench had assured the States that the centralised process would not affect their rules, reservation or language and it would be like a UPSC examination.

According to a report earlier issued by the Supreme Court –‘Indian Judiciary Annual Report 2015-2016’, 2.8 crore cases were pending in the district courts across the country which were short of nearly 5,000 judicial officers. The report had suggested increasing the judicial manpower “manifold” at least seven times to overcome the crisis by appointing about 15,000 more judges in the coming years.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Showing serious concern over the routine appeals to the highest court that result in obstruction of the Constitutional role assigned to the highest court, the Court said that such practice affects the balance required to be maintained by the highest court of giving priority to cases of national importance, for which larger Benches may be required to be constituted and hence, routine direct appeals to the highest court in commercial litigation affecting individual parties without there being any issue of national importance may call for reconsideration at appropriate levels.

The Court was hearing the appeal by the Gujarat Urja Vikas Nigam Ltd against the order of the Appellate Tribunal for Electricity in the dispute arising out of the Power Purchase Agreement. Holding the order of the Tribunal erroneous, the Court took note of the vital issue of composition and functioning of Tribunals and statutory framework thereof especially its impact on working of the Highest Court and in turn on the rule of law and hence, asked the Law Commission to consider the below mentioned questions:

  • Whether any changes in the statutory framework constituting various Tribunals with regard to persons appointed, manner of appointment, duration of appointment, etc. is necessary for strengthening the rule of law?
  • Whether it is permissible and advisable to provide appeals routinely to this Court only on a question of law or substantial question of law which is not of national or public importance without affecting the constitutional role assigned to the Supreme Court having regard to the desirability of decision being rendered within reasonable time?
  • Whether direct statutory appeals to the Supreme Court bypassing the High Courts from the orders of Tribunal affects access to justice to litigants in remote areas of the country?
  • Whether it is desirable to exclude jurisdiction of all courts in absence of equally effective alternative mechanism for access to justice at grass root level as has been done in provisions of TDSAT Act (Sections 14 and 15).

The bench of Anil R. Dave and Adarsh Kumar Goel, JJ asked the Law Commission to submit the report within one year, if possible and directed that the matter be placed before a 3-judge bench in November, 2017. [ Gujarat Urja Vikas Nigam Ltd. v. Essar Power Limited, 2016 SCC OnLine SC 803, decided on 09.08.2016]

Hot Off The PressNews

On 22nd and 23rd April, 2016, the Chief Justices’ Conference, 2016 was held and extensive resolutions were made, mainly targeting the issue relating to lack of infrastructure in subordinate courts and pendency of cases. Some of the key resolutions are as follows:

  • Suitable five year and annual plans to be made to identify the infrastructural needs and timely completion of pending construction projects to be ensured. Committees to be established to monitor the projects.
  • Considering the pendency of cases, the Chief Justices will actively have regard to the provisions of Article 224A of the Constitution as a source for enhancing the strength of Judges to deal with the backlog of cases for a period of two years or the age of sixty-five years, whichever is later until a five plus zero pendency is achieved.
  • The Chief Justices may consider the restructuring of the Scheme of morning, evening and holiday courts by utilizing the services of retired judicial officers as well and ensure, where feasible, the utilisation of these courts for the timely disposal of cases relating to petty offences, such as traffic cases and legal aid cases.
  • Disposal of cases pending for over ten years in relation to under-trials shall be taken up on a mission-mode basis and top priority shall be assigned to cases pending for over three years.
  • Chief Justices should ensure that the Selection and Appointment Committees in the High Courts, periodically monitor the process of filling up of vacancies in the District Judiciary.
  • Data available on the National Judicial Data Grid shall be utilized to monitor the cases of under-trials, for generating monthly reports and to progressively reduce the pendency of oldest cases.
  • Cases pertaining to women, marginalized segments, senior citizens and differently-abled to be disposed off on priority basis.
  • In order to improve the quality of legal education, in States where there is no National Law University, the High Courts should actively take up the setting up of such a law school with the State Governments.

To read the full text of the resolution, click CJConference