If High Court remains without permanent Chief Justice, speedy justice suffers, Supreme Court [Read judgment]

The Supreme Court today once again took note of the troubles plaguing the appointment of judges to higher judiciary, particularly the non-appointment of permanent Chief Justices to High Courts..A Bench of Justices AK Goel and UU Lalit made strong observations about it in a judgment pertaining to prayer for bail by a convict..The appellant in the case had been sentenced to life imprisonment and his criminal appeal against life sentence is pending. Though in custody for more than ten years, his prayer for bail was dismissed by the Madhya Pradesh High Court leading to the appeal in Supreme Court..The Court while deciding the same proceeded to address the issue of ‘need to consider decongestion of Constitutional Courts’, particularly with respect to criminal appeals..“In High Courts, 16.29 lakhs cases were more than five years old. 7.43 lakh cases were more than 10 years old. Since current disposal itself was less than the institution of fresh cases, there was no likelihood of old cases being decided in a reasonable time. .There could not be increase of strength of High Court Judges beyond a limit. The system could not be top heavy. Volume of work in the High Court was likely to further increase on account of increased disposal of cases in subordinate courts with the increased strength of judges, infrastructure and other steps being taken.”.The Court then noted that Constitutional courts cannot be overburdened since the nature of work before the Constitutional Courts, particularly laying down of law, is time consuming..“Disposal of cases in subordinate courts is not enough if the same are thereafter held up in the High Courts. New laws are being enacted providing statutory remedies before the High Courts. ….appointment of large number of such judges can be counter productive. If number of Constitutional Courts is to be increased to match the volume of work being entrusted to such Courts, it may have its implication unless it is possible to find sufficient number of suitable persons. .The fact that there are large number of vacancies in such Courts shows the difficulty in identifying adequate number of suitable persons for Constitutional Courts. Needless to say that nature of work before the Constitutional Courts particularly laying down of law is time consuming. Such Courts cannot be overburdened.”.Therefore, the Court asked Central government to consider whether it was possible to provide any other suitable forum for deciding criminal appeals..“…we are of the view that the Union of India ought to consider whether it is viable to have criminal appeals and other matters before the High Courts decided within reasonable time as per existing system. If not, whether it is possible to provide any other suitable forum for such appeals so as to ensure enforcement of fundamental right of speedy justice or how else the situation can be remedied. The issue of non-viability of providing routine statutory appeals to Constitutional Courts as observed in Gujarat Urja (supra) may also need to be considered.”.Subsequently, the Court considered the aspect of appointment of judges to High Courts and the need to fill up the vacancies with the best available talent..Placing reliance on a plethora of decisions, particularly the NJAC judgment and Justice Karnan contempt judgment, the Court noted,.“Improvement contemplated in the above judgment does not seem to have seen the light of the day. In Re: Sri Justice C.S. Karnan observations have been made as to the need to revisit the process of appointments and to set up mechanism for corrective measures other than impeachment against conduct of an erring Judge.”.It stated that if a High Court remains without a permanent Chief Justice, process of speedy justice will suffer. In spite of timeline in the MOP for appointments in pursuance of judgement in Supreme Court Advocates-on-Record Association and Ors. v. Union of India that there will be no Acting Chief Justice for more than one month, timely appointments of Chief Justices is not taking place, the Court noted..“We may particularly note that if a High Court remains without a permanent Chief Justice, process of speedy justice certainly suffers. In spite of timeline in the MOP for appointments in pursuance of Judgement of this Court in Supreme Court Advocates-on-Record Association and Ors. versus Union of India that there will be no Acting Chief Justice for more than one month, timely appointments of Chief Justices is not taking place. Appointment of a Chief Justice for few days for a High Court other than the place where the candidate is already working serves no purpose of the system.”.It, therefore, urged the Central government to take steps to ensure that appointments take place as per the prescribed timeline. The system cannot remain static or unconcerned even when problems are patent, the Bench observed..“The Central Government must take all steps to ensure such appointments as per prescribed timeline. Even if it may not be possible to make initial appointments to High Courts till suitable candidates are identified, appointment of Chief Justices may stand on different footing as selection is to be made out of available candidates. .To speedily identify such candidates, availability of data and involvement of persons who can spend time may be needed. The process may require thinking, planning and acting on a continuous basis. Primacy with the judiciary is necessary but for the job of such onerous nature, effective assistance is a must. The system cannot remain static or unconcerned even when problems are patent.”.The Court summed its conclusions as follows:.(i) In the light of 124th and 272nd Reports of the Law Commission of India, judgment of this Court in Gujarat Urja (supra), the Minutes of the Arrears Committee of Supreme Court dated 8th April, 2017 and all other relevant considerations, the concerned authorities may examine whether there is need for any changes in the judicial structure by creating appropriate fora to decongest the Constitutional 37 Courts so as to realistically achieve the constitutional goal of speedy justice. .(ii) In view of 14th Report of the Law Commission of India, judgment of this Court in All India Judges’ Association versus Union of India, the Minutes of the Arrears Committee of this Court dated 8th April, 2017, and the experience on the subject, pending consideration of issue of All India Judicial Service, there is need to consider the proposal for central selection mechanism for filling up vacancies in courts other than the Constitutional Courts and also to consider as to how to supplement inadequacies in the present system of appointment of judges to the Constitutional Courts at all levels. .(iii) There is need to consider in the light of observations hereinabove and all other relevant considerations whether there should be a body of full time experts without affecting independence of judiciary, to assist in identifying, scrutinizing and evaluating candidates at pre-appointment stage and to evaluate performance post appointment. The Government may also consider what changes are required in the process of (1992) 1 SCC 119 evaluation of candidates at its level so that no wrong candidate is appointed. What steps are required for ensuring righteous conduct of Judges at later stage is also an issue for consideration.”.Interestingly, the Court also called for contempt action against office bearers of the Bar Association/Bar Council who pass resolution for strikes or for abstaining from work..“Pending legislative measures to check the malady of frequent uncalled for strikes obstructing access to justice, the Ministry of Law and Justice may compile information and present a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in the contempt or inherent jurisdiction of this Court. .The Court may direct having regard to a fact situation, that the office bearers of the Bar Association/Bar Council who passed the resolution for strikes or abstaining from work or took other steps in that direction are liable to be restrained from appearing before any court for a specified period or till they purge themselves of contempt to the satisfaction of the Chief Justice of the concerned High Court based on an appropriate undertaking/conditions. They may also be liable to be removed from the position of office bearers of the Bar Association forthwith until the Chief Justice of the concerned High Court so permits on an appropriate undertaking being 39 filed by them.”.Read the judgment below.