Holding

The Supreme Court held that stays of criminal investigations or trials must be exercised sparingly, with the High Court obligated to dispose of the matter preferably within six months of the stay, to safeguard the right to speedy justice.

Summary

The Supreme Court examined a batch of interlocutory orders by the Allahabad High Court that stayed criminal investigations and trials, resulting in cases remaining pending for years, some up to three decades. The Court held that while High Courts have the power under Article 226 and Section 482 of the CrPC to stay proceedings, such extraordinary power must be exercised sparingly and with a duty to dispose of the case within six months of the stay. It emphasized that prolonged stays violate the fundamental right to speedy justice under Article 21 and undermine the rule of law. The Court directed all High Courts to submit data on stays, instructed the Law Commission to investigate and recommend measures such as creation of additional courts, and ordered the Allahabad High Court to improve case management. It also directed the central and state governments to assist the Law Commission and to implement infrastructure and administrative reforms to reduce pendency.

Issues considered

The scope and limits of the High Courts' power under Article 226 and Section 482 to stay criminal investigations and trials.
Whether prolonged stays of criminal proceedings infringe the right to speedy justice under Article 21 of the Constitution.
What guidelines should govern the exercise of the extraordinary power to stay investigations and trials.
Whether the Supreme Court can direct High Courts and the Law Commission to undertake systemic reforms to curb pendency.

Legislation cited

Code of Criminal Procedures. Section 397, s. Section 482
Constitution of Indias. Article 136, s. Article 142, s. Article 21, s. Article 226, s. Article 227, s. Article 235

Subjects

Access to justiceDelay in criminal proceedingsStay of investigationArticle 21Article 226Section 482Rule of lawPendencyLaw CommissionJudicial administration

Judgment

[2012] 1 S.C.R. 779

IMTIYAZ AHMAD A
v.
STATE OF UTTAR PRADESH & ORS.
(Criminal Appeal Nos. 254-262 of 2012)

FEBRUARY 1, 2012
8
[ASOK KUMAR ~ANGULY AND T.S. THAKUR, JJ.)

Administration of Justice

Stay by High Courts of investigations and trials - c
Resulting in pendency of such cases for long - Held: The fact
finding exercise directed by Supreme Court has revealed a
problem of serious concern -..It is simply unacceptable for a
case to remain pending for three decades under any
circumstances, and more so when the pendency is a D
consequence of the stay proceedings granted by High Court
- 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 E
Constitution and, particularly, Article 21 - Access to Justice
must be defined in terms of ensuring that legal and judicial
outcome is just and equitable - The steps taken by the
. Government of India to ensure speedy justice and to reduce
delay, brought to the notice of the Court - Directions given by
Supreme Court with regard to exercise of extra-ordinary power F
by High Courts to grant stay of investigations and trials -
Directions also given to the Law Commission which itself is
seized with the issue and is making investigation having
regard to its terms of reference - Matter to appear before the
appropriate Bench for consideration of the recommendations G
of the Law Commission and for further directions - Constitution
of India, 1950 - Articles 21, 136 and 142.

779 H
780 SUPREME COURT REPORTS [2012] 1 S.C.R.

A R. Ramachandra Rav v. State of Karnataka, (2002) 4
sec 578 - referred to.
Delcourt v. Belgium [1970] ECHR 1 - referred to.

14th Report of the Law Commission. and Nature of
B Judicial Process by Justice D.M. Dharmadhikari (2002) 6
sec (Jour) 1 - referred to.
United Nations Development Programme, Access to
Justice - Practice Note (2004); William H. Taft, The Delays
c of the Law, Yale Law Journal. Vo1.18. No.1 (Nov., 1908,
p.28); Belekar Memorial Lecture Series, Lecture delivered
on August 31, 2002; Roscoe Pound, Social Justice and
Legal Justice (Address delivered to the Allegheny County
Bar Association, April 5, 1912; The Rule of Law by Tom
0 Bingham, p. 85 - referred to.

International Covenant on Civil and Political Rights
(ICCPR), Article 14(3); European Charter on Fundamental
Rights, Article 47; European Convention on Human Rights
and Fundamental Freedoms, Article 6; ECHR Article 6(1);
E Universal Declaration of Human Rights, Articles 8 and 16
and South Africa's Constitution - referred to.

Report of Lord Woolf submitted to Lord Chancellor
in England: Final Report to the Lord Chancellor on the Civil
F Justice System in England and Wales (Lord Woolf's Report),
1996, Chapter 21, para 1 - referred to.

Case Law Reference:
[1970] ECHR 1 referred to para 46
G (2002) 4 sec 578 referred to para 51

CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 254-262 of 2012.

H
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 781
ORS.
From the Judgment & Order dated 09.4.2003, 29.4.2003, A
30.4.2003, 10.10.2003, 7.5.2004, 26.5.2005, 19.9.2006,
27.9.2006, 6.10.2006 and 18.12.2008 of the High Court of
Judicature at Allahabad in CRLWP No. 1786 of 2003.

H.P. Raval, ASG, Gopal Subramaniam, Ratnakar Dash, B
T.A. Khan, Padma Laxmi Nigam, B.V. Bairam Das, Sandeep
S. Karhail, B.P. Singh Dhakray, Shakti Singh Dhakray, D.B. Raj
Vohra, Rajeev K. Dubey, Kamlendra Mishra, T.G. Narayanan
Nair, K.N. Madhusoodhanan, Krishanand Pandeya, Amrendra
Kr. Choubey, Anitha Shenoy for the appearing parties.
c
The Order of the Court was delivered by

ORDER

GANGULY, J.
D
Leave granted.

1. 1-:eard learned counsel for the parties, including the
learned Amicus Curiae.
E
2. In these appeals, this Court is concerned with a case
where orders were passed by the High Court on several dates
after the registration of FIR and on stay order being granted,
investigation, and framing of charges or trial thereafter in the
matter remained pending in the High Court for a long period
of time. The stay order dated 9.4.03 and several orders dated F
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 G
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 cf H
782 SUPREME COURT REPORTS [2012] 1 S.C.R.

A 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
8
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
C matter was gelling 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 greatly concerned about the
manner in which criminal investigation and trial have been
D stayed by the High court and also being aware of the fact that
similar cases are happening in several High Courts in India
wanted a serious consideration of the issues and appointed
Mr. Gopal Subramanium, Senior Advocate (at that time
Solicitor General of India) to assist the Court as Amicus
E Curiae.

7. The Court also issued a direction dated 8.1.2010 to the
Regisirars General/Registrars of all the High Courts in the
country to furnish a report containing statistics of cases pending
in the respective High Courts in which the proceedings have
F been stayed at the stage of registration of FIR, investigation,
framing of charges and/or trial in exercise of power under Article
226 of the Constitution or Sections 482 and/or 397 of the Code
of Criminal Procedure. The report was to deal with the following
types of cases:
G
(a) murder,

(b) rape,

(c) kidn:ipping, and
H
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 783
ORS. [ASOK KUMAR GANGULY, J.]
(d) dacoity. A
8. In response to the above direction, most of the High
Courts submitted their reports. Two High Courts, Sikkim and
Himachal Pradesh, reported that they do not have any such
pending criminal cases of the types mentioned above. The
8
reports submitted by different High Courts disclosed that
altogether there were large number of such cases pending.
Such pendency of cases was analyzed by the Amicus Curiae
with the valuable assistance of Dr. Pronab Sen, Secretary and
Dr. G.C. Manna, Deputy Director in the Ministry of Statistics and C
Programme Implementation.

9. The important findings arrived at after the analysis of the
data are as under:

(a) Out of the four c<1tegories of cases, murder cases D
were found to be the most common type,
accounting for 45% of all the cases.

(b) About one-fourth of all the cases pending are for 2
to 4 years from the date of stay order. Nearly 8%
of the cases are, however, pending for 6 years or E
more.

(c) In most of the cases in different High Courts, the
duration for which the case is pending varies from
1 to 4 years. It is seen that 34 out of 201 cases in F
Patna High Court and 33 out of 653 cases in
Allahatad High Court are pending for 8 years or
more.

10. About total pendency, in the report dated 12.4.10 filed
by the Amicus, the following position emerges. Table 1 below G
shows the total number of cases pending in each High Court
and the percentage share of the total pendency .
•
H
784 SUPREME COURT REPORTS [2012] 1 S.C.R:

A TABLE 1: TOTAL PENDENCY
High Court Number of criminal % share
cases by type of High
Court in
total
B number
of cases
Murder Rape Kidna- Dae- All
napping city
(1) (2) (3) (4) (5) (6) (7)
c 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
D Bombay 14 5 4 6 29 1.3
Chhattisgarh 4 0 0 1 5 0.2
Delhi 4 5 2 0 11 0.5

E 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
F
Karnataka 11 4 4 3 22 1.0
Kera la 12 2 5 1 20 0.9
Kolkata 431 209 21 48 709 31.1
G
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
H
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 785
ORS. [ASOK KUMAR GANGULY, J.]

Punjab & Haryana 17 9 5 1 32 1.4 A

Rajasthan 23 11 17 5 56 2.5
Uttarakhand 18 19 24 10 71 3.1
All 1021 492 550 217 2280 100 B

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 C
High Courts taken together account for 76.9% of all the
pendency.

12. Table 2 gives the distribution of all cases and the
period for which the cases are pending in each High Court. D

TABLE 2: DURATION OF PENDENCY
High court Duration for which pending
Nil <6m 6m-1y 1-2y 2-4y 4-By 6-8y ~8y All E
(1) (2) (3) (4) (5) (6) (7) (8) (9) 10)
Allahabad 1 38 126 190 158 90 17 33 653
Andhra Pradesh 0 16 16 17 11 0 0 0 60
F
Bihar 70 14 11 33 27 8 4 34 201
Bombay (' 1 6 8 6 3 2 3 29
Chhattisgarh 0 1 0 0 0 1 2 1 5
Delhi 0 1 2 4 0 3 1 0 11 G

Gauhati 0 3 5 4 3 0 6 0 21
Gujarat 0 8 6 34 46 20 1 0 15
J&K 0 5 2 3 4 0 0 0 14 H
786 SUPREME COURT REPORTS [2012] 1 S.C.R.

A
·-- -,
Jharkhand 0 7 4 2 9 3 9 7 41
Karnataka 9 4 3 5 0 1 0 0 22

Kerala 0 1 0 1 5 13 0 0 20

B Kolkata 7 40 1:>4 135 209 176 38 0 709

Madhya Pradesh 0 2 6 2 12 6 1 1 30
Madras 0 1 0 1 1 0 0 0 3
Orissa 0 9 37 52 60 18 4 7 187
c
Punjab & Haryana 0 10 9 4 6 1 1 1 32
Rajasthan 0 8 8 11 22 6 0 1 56

Uttarakhand 0 7 10 9 21 20 3 1 71
D
All 87 176 355 515 600 369 89 89 228(

13.The category wise distribution is as follows:
TABLE 3: CATEGORYWISE DISTRIBUTION
E
Type of Case Duration for which pending

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)

Nil <6m 6m-1y 1-2y 2-4y 4-6y 6-Sy ':_By All
F
Murder 25 65 132 182 309 211 43 54 1021

Rape 25 46 83 111 127 68 21 11 492
Kidnapping 16 51 120 156 116 67 12 12 550
G Dacoity 21 14 20 66 48 23 13 12 217

All 87 176 355 515 600 369 89 89 2281

14. It is clear from the above that out of the four categories,
H murder cases account for nearly 45% of the total pendency. This
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 787
ORS. [ASOK KUMAR GANGULY, J.]

share increases if only the oldest pending cases are A
considered. Out of the 178 cases pending for 6 years or more,
97 are murder cases - i.e. a share of almost 55%.

15. In that report indications were also given about the
frequency of listing of cases by different High Courts. B

16. On the hypothesis that if a case is listed frequently, it
indicated that the matter was being actively considered by the
High court, data was also called for on the number of times the
case was listed after the grant of the stay order.
c
17. The following table gives the average number of times
a matter was listed for hearing after the grant of stay order.

High Court Total number of cases Average number
of times the D
matter was listed
per case

Allahabad 653 4.0

Andhra Pradesh 60 3.4 E

Bihar 201 21.7

Bombay 29 5.1

Chhattisgarh 5 4.3 F
Delhi 11 12.2

Gauhati 21 17.0

Gujarat 115 13.4
G
J&K 14 7.7

Jharkhand 41 3.5

Karnataka 22 5.0
H
788 SUPREME COURT REPORTS [2012] 1 S.C.R.

A
Kera la 20 11.4
Kolkata 709 N/A
Madhya Pradesh 30 3.0
B Madras 3 2.3
Orissa 187 5.8
Punjab & Haryana 32 8.8
c Rajasthan
.
56 7.9
Uttarakhand 71 3.1
All 2280 6.1

D 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.

E 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
F 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 serious concern that 41 % of the cases
have been pending for 2-4 years, and 8% (approximately 1 out
G of every 12 cases) have been pending for more than six years.
21. After considering the first report by the Amicus, this
Court passed the following order on 3.5.2010:-

'The suggestions given by the Solicitor General have been
H
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 789
ORS. [ASOK KUMAR GANGULY, J.)
considered. But before passing any order, we deem it A
proper to request learned counsel representing Allahabad
High Court to place before the Court total number of cases
in which power under Article 226 of the Constitution of
India or Section 482 of the Code of Criminal Procedure
has been exercised and the proceedings of the criminal B
case have been stayed at the stage of investigation or
trial."

22. Pursuant to the above order, the Allahabad High Court
furnished information of a total of 10,541 cases where power
under Article 226 of the Constitution of India or Section 482 of C
the Code of Criminal Procedure has been exercised and the
proceedings of the criminal case have been stayed at the
stage of investigation or trial. Pursuant to a request of the
Amicus Curiae, the Allahabad High Court also furnished the
above data in electronic form. D

. · 23. The data was then analyzed by the Amicus Curiae with
the help of Dr. T.C.A. Anant (the current Secretary) and Dr. G.C.
Manna, Deputy Director General in the Ministry of Statistics and
Programme Implementation. Then a second report was E
prepared and placed for the conside.ration of this Court.

24. Important findings from the second report are:-

"Out of the data for 10,541 cases received, data for 10,527
cases could be meaningfully analysed (as the rest had F
some missing elements). The important findings in respect
of these are:

(a) As high as 9% of the cases have completed-more than
twenty years since the date of stay order. G

(b) Roughly 21 % of the cases have completed more than
ten years.

(c) Average pendency per case (counted from the date of
H
790 SUPREME COURT REPORTS [2012] 1 S.C.R.

A 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
B
prominent stages are found to be "appearance" and
"summons", with each comprising 19% of the total number
of cases. (If "appearance" and "summons" are considered
interchangeable, then they would collectively account for
the maximum of stay orders."
c
25. Table below gives the duration for which cases have
been pending since the date of the stay order:

No. of years Number of cases Percentage of
D passed cases

0 763 7.2

1 1250 11.9

2 1272 12.1
E
3 1024 9.7

4-5 2003 19.0

6-7 1125 10.7
F
8-10 920 8.7

11-15 577 5.5

16-20 648 6.2
G
21-25 631 6.0

More than 25 314 3.0

All 10527 100.0
[---~-

H
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 791
ORS. [ASOK KUMAR GANGULY, J.)
26. A perusal of that information reveals that shockingly A
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:-
B

Stage at which Number of Percentage of
proceeding cases cases
stayed

Chargesheet 3365 32.0 c
Appearance 2016 19.2

Summons 1951 18.5

"Further proceedings 563 5.3 D
stayed"

Before charge 380 3.6

Trial 330 3.1
E
Evidence 323 3.1

Complaints 315 3.0

Cognizance 245 2.3

Disposal 237 2.3 F

Issue of notice 178 1.7

Others 624 5.9

All 10527 100.0 G

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 respectfully submitted that it
is simply unacceptable for a case to remain pending for three H
792 SUPREME COURT REPORTS [2012] 1 S.C.R.

A decades under any circumstances, and more so when the
pendency is a consequence of the stay proceedings granted
by the High Court.

29. Thereafter, vide Order dated 26.08.2010, this Co1:1rt
was of the view that the existing infrastruciure in the High Court's
8
and District Cou,i's must be improved and had directed that a
comprehensive exercise should be undertaken to prepare the
system in which all the cases instituted in the Court are listed
for hearing without undue delay and some arrangement be
made for monitoring of the listing and disposal of the cases.
C As a pilot project, the system is to be first implemented in the
Allahabad High Court. ·

30. Thereafter, meetings were held between the officers
of NIC, the Ministry of Statistics, the Allahabad High Court and
D the Amicus Curiae and efforts were made to develop the
comprehensive system that the Court has directed. Another
Report was filed by the Amicus Curiae setting out the steps
taken by the Allahabad High Court, the Central Government and
also certain suggestions given by Dr. G.C. Manna, Director
E General, Ministry of Statistics, who had been requested to visit
the High Court to interact with the officials there to see how a
better system of listing and tracking cases could be developed.

31. Thereafter, vide Orders dated 14.07.2011 and
17.08.2011, this Court again called for status reports from all
F the High Courts as to what steps had been taken specifically
in the context of this case, in order to expeditiously dispose of
matters where proceedings are stayed a(ttie· stage of
registration of FIR, investigation, framing of charges or trial.
Status reports were furnished by some of the High Courts and
G reports from other High Courts were awaited.

32. Then, vide Order dated 29.09.2011, this Court
observed that considering the larger issues which are involved
in this case which virtually have a direct impact on
H administration of justice, it was fit and proper to implead the
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 793
ORS. [ASOK KUMAR GANGULY, J.]
Central Government in this proceeding. A

33. It is submitted that the issues being considered in this
case have far reaching implications for maintaining of rule of
law. Where investigation/trial is stayed for a long time, even if
the stay is ultimately vacated, the subsequent investigation/trial
8
may not be very fruitful for the simple reason, that evidence 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 C
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 D
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 E
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 F
outcomes are just and equitable (See United Nations
Development Programme, Access to Justice - Practice Note
(2004)].

35. The present case discloses the need to reiterate that
'Access to Justice' is vital for the Rule of Law, which by G
implication includes the right of access to an Independent
Judiciary. It is submitted that the stay of investigation or trial for
significant periods of time runs counter to the principle of Rule
of Law, wherein the rights and aspirations of citizens are
intertwined with expeditious conclusion of matters. It is further H
794 SUPREME COURT REPORTS [2012] 1 S.C.R.

A submitted that delay in conclusion of criminal matters signifies
a restriction on the right of access to justice itself, thus
amounting to a violation of the citizens' rights under the
Constitution, in particular under Article 21.

36. In a very important address to the Virginia Bar
8
Association in 1908, William H. Taft observed that one reason
for delay in the lower courts is the disposition of judges to wait
an undue length of time in the writing of their opinions or
judgments. (See William H. Taft, The Delays of the Law, Yale
Law Journal. Vo1.18. No.1 (Nov., 1908), pp.28-39)]. The Judge
C should deliver the judgment immediately upon the close of the
argument. It is almost of as much importance that the court of
first instance should decide promptly as that it should decide
right. It should be noted that everything which tends to prolong
or delay litigation between individuals, or between individuals
D and State or Corporation, is a great advantage for that litigant
who has the longer purse. The man whose rights are involved
in the decision of the legal proceeding is much prejudiced in a
fight through the courts, if his opponent is able, by reason of
his means, to prolong the litigation and keep him for years out
E of what really belongs to him.

37. Dispatch in the decision making process by Court is
one of the great expectations of the common man from the
judiciary. A sense of confidence in the Courts is essential to
F maintain a fabric of order and liberty for a free people. Delay
in disposal of cases would destroy that confidence and do
incalculable damage to the society; that people would come to
believe that inefficiency and delay will drain even a just judgment
of its value; that people who had long been exploited in the small
G transactions of daily life come to believe that courts cannot
vindicate their legal rights against 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
H
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 795
ORS. [ASOK KUMAR GANGULY, J.]
Court Bar Association, Nagpur. Lecture delivered on August A
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 B
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 C
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 D
protection fail in their purpose."

39. In a very important discourse Roscoe Pound argued
that by responding to the doctrine of social justice, the concept
of justice has advanced through various stages. [See Roscoe
Pound, Social Justice and Legal Justice (Address delivered to E
the Allegheny County Bar Association, April 5, 1912]. At the first
stage justice was equated with dispute settlement. At the
second stage justice was equated with maintenance of
harmony and order. In the third stage, justice was equated with
individual freedom. Pound argued that a fourth stage had F
developed in society, but had not yet been fully reflected in the
courts, and that was what Pound called 'social justice'. That is
the ideal form of justice where the needs of the people are
satisfied, apart from ensuring that they have freedom.
G
40. Despite complicated social realities, it is submitted
that Rule of Law, independence of the judiciary and access to
justice are conceptually interwoven. All the three bring to bear
upon the quality of aspirations which are guaranteed under our
Constitution. In order to fulfil the aspiration, it is important that H
796 SUPREME COURT REPORTS [2012] 1 S.C.R.

A the system must be a successful legal and judicial system. This
would involve improvement of better techniques to manage
courts more efficiently, culling down costs and duration of
proceedings and to ensure that there is no corruption in the
judiciary and the establishment of the judiciary and would also
B require regular judicial training and updating.

41. The memorable words of Lord Devlin (as quoted by
D.M. Dharmadhikari, J.) are pertinent to note:

" ... The prestige of the judiciary and their reputation for stark
C impartiality is not at the disposal of any government; it is
an asset that belongs to the whole nation ... "

[See Justice D.M. Dharmadhikari, Nature of Judicial
Process, (2002) 6 SCC (Jour) 1.
D 42. Under the principle of the Rule of Law, adequate
protection of the law must be given to all persons and to give
meaning to it, there must exist an unimpeded right of access
to justice. In the 'Words of Lord Bingham:

E "It would seem to be an obvious implication of the principle
that everyone is bound by and entitled to the protection of
law that people should be able, in the last resort, to go to
court to have their civil rights and claims determined. An
unenforceable right or claim is a thing of little value to
anyone."
F
[See Tom Bingham, The Rule of Law, p. 85]

43. The right of access to justice has been recognised as
one of the fundamental and basic human rights in various
G 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
H (Rome Statute).
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 797
ORS. [ASOK KUMAR GANGULY, J.]
45. In the context of the European Union, Article 47 of the A
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. B

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.
c
" ... 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." D
[See [1970] ECHR 1.]

47. Article 8 of the Universal Declaration of Human Rights
provides that:
E
"Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by
law."
F
48. Article 16 of the Principles of Freedom from Arbitrary
Arrest and Detention provides that:

"To ensure that no person shall be denied the possibility
of obtaining provisional release on account of lack. of
means, other forms of provisional release than upon G
financial security shall be provided."

49. The principle of 'Access to Justice or Courts' is
recognized as a right in South Africa's Constitution as well:
H
798 SUPREME COURT REPORTS [2012] 1 S.C.R.

A "Access to Courts.

34. Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public
hearing before a court or, where appropriate. another
independent and impartial tribunal or forum:·
B
50. The learned Amicus urged that having regard to the
paramount importance of the right to access, the Court which
he argues is a basic fundamental right specially the Central
Government and the State G0vernments have a duty to ensure
C speedy disposal of cases for proper maintenance of rule of law
and for sustaining peoples' faith in tl1e judicial system. He
further argued that with the present infrastructure it is not
possible for Courts, whether it is District Courts or the State
High Courts or this Court to effectively dispose of cases by just
D and fair orders within a reasonable timeframe. The learned
Amicus also urged that the problem is huge and the
considerations are momentous. To understand the magnitude
of the problem, the Government must appoint a permanent
commission to make continuous recommendation on measures
E which are necessary to streamline the existing justice delivery
system. In support of his submission, he referred to the Report
of Lord Woolf submitted to Lord Chancellor in England:

"... It will not only assist in streamlining and improving our
existing systems and process; it is also likely, in due
F course, itself to be a catalyst for radical change as well. .. "

[Final Report to the Lord Chancellor on the Civil Justice
System in England and Wales (Lord Woolf's Report),
1996, Chapter 21, para 1]
G
51. The learned Amicus submitted that this huge
pendency of cases operates as a burden on the mindset of a
Judge. He submitted rightly that the inner charter of the judge
is constantly under a pressure to somehow decide the case and
H the quality of justice suffers. Therefore. according to him, it is
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 799
ORS. [ASOK KUMAR GANGULY, J.]

the constitutional duty of both the Central Government and the A
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 B
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 c
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 Kamataka, reported in (2002) 4 SCC 578. The relevant
observations made in the said judgment are as follows:-
D
" ... The law does not permit any government to deprive its
citizens of constitutional rights on a plea of poverty or
administrative inability ... "

52. As the Central Government has been impleaded in this E
proceeding it was represented by Mr. Harin P. Raval, the
learned ASG.

53. The learned ASG very fairly submitted that the
questions debated in this case, by and large, are not
F
adversarial. The learned ASG submitted that the Government
also accepts that right of access to Court is a fundamental and
constitutional right. The learned ASG aloo accepted that if right
to access justice is denied to the citizens then most of the rights
given under the Constitution virtually become a rope of sand.
The learned ASG submitted that the Government is aware of G
the importance of these rights and are taking several steps to
make these rights vibrant. In the counter affidavit, which has
been filed by the Under Secretary, Ministry of Law and Justice
dated 9.1.2012 several steps which have baen taken by the
H
800 SUPREME COURT REPORTS [2012] 1 S.C.R.

A Government to ensure speedy justice and to reduce delay are
as follows:-

I. Appointment of Court Managers in High Courts
and Sub-ordinate Courts.

B II. Vision Statement and Action Plan adopted by! he
National Consultation for Strengthening the
Judiciary towards Reducing Pendency and
Delays.

c Ill. To prepare National Arrear Grid

IV. National Mission for Justice Delivery and Legal
Reforms.

V. National and State Legal Service Authorities
D constituted under Legal Service Authorities Act,
.1987.

VI. National Court Management System (as proposed
by Hon'ble Chief Justice of India).
E 54. The learned ASG referred to the agenda notes and the
minutes of the meeting of the Advisory Council of the National
Commission for Justice Delivery and Legal Reforms. He
submitted that the National Mission spanning from 2011 to
2016 would focus on two major goals envisaged in the Vision
F document, namely, (i) increasing access by reducing delays
and arrears in the system, and (ii) enhancing accountability
through structural changes and by setting performance
standards and capacities.

G 55. It was also pointed out that the tentative action plan
covers five strategic initiatives and one of them is improving
infrastructure of the District and Subordinate Courts and
creation of special and additional courts like morning and
evening courts etc. He referred to various pages of the Meeting
H of the Advisory Council of the National Mission held on
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 801
ORS. [ASOK KUMAR GANGULY, J.]
18.10.2011 in Vigyan Bhawan, New Delhi to show that the A
Government is aware of the 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. B

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 C
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 D
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 E
Law Commission. The said terms of reference are as follows:-

"A. Review/Repeal of obsolete laws:

i. To identify laws which are no longer needed or relevant
and can be immediately repealed. F

ii. To identify laws which are in harmony with the existing
climate of economic liberalization which need no change.

iii. To identify laws which require changes or amendments G
and to make suggestions for their amendment.

iv. To consider in a wider perspective the suggestions for
revision/amendment given by Expert Groups in various
Ministries/Departments with a view to coordinating and
harmonizing them. H
802 SUPREME COURT REPORTS [2012) 1 S.C.R.

A v. To consider references made to it by Ministries/
Departments in respect of legislation having bearing on
the working of more than one Ministry/Department.

vi. To suggest suitable measures for quick redressal of
citizens grievances, in the field of law.
B
B. Law and Poverty

i. To examine the Law which affect the poor and carry out
post-audit for socio-economic legislation.
c ii. To take all such measures as may be necessary to
harness law and the legal process in the service of the
poor.

C. To keep under review the system of judicial
D administration to ensure that it is responsive to the
reasonable demands of the times and in particular to
secure: -

i. Elimination of delays, speedy clearance of arrears and
E reduction in costs so as to secure quick and economical
disposal of cases without affecting the cardinal principle
that decisions should be just and fair.

ii. Simplification of procedure to reduce and eliminate
technicalities and devices for delay so that it operates not
F as an end in itself but as a means of achieving justice.

iii. Improvement of standards of all concerned with the
administration of justice.

D. To examine the existing laws in the light of Directive
G
Principles of State Policy and to suggest ways of
improvement and reform and also to suggest such
legislation as might be necessary to implement the
Directive Principles and to attain the objective set out in
the Preamble to the Constitution.
H
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 803
ORS. [ASOK KUMAR GANGULY, J.]

E. To examine the existing laws with a view to promoting A
gender equality and suggesting amendments thereto. ·

F. To revise the Central Acts of General Importance so as
to simplify them and to remove anomalies, ambiguities and
inequities.
B
G. To recommend to the Government measure for bringing
the statute book up-to-date by repealing obsolete laws and
enactments or parts thereof which have outlived their utility.

H. To consider and to convey to the Government its views c
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).

I. To consider the requests for providing research to any
foreign countries as may be referred to it by the D
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 E
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
F
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 G
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 lo
the Government. H
804 SUPREME COURT REPORTS [2012] 1 S.C.R.

A Various Law Commissions have given about 234 Reports
so far. Many of them are made available on the website
of Law Commission. Since many of the Reports are
voluminous it will be difficult for researchers to read entire
Report online. To facilitate the researchers to choose the
B topics of their area and to create awareness amongst
Judges, Lawyers, Law Teachers and Students on the
various recommendations of the Law Commission, a brief
summary of all the Reports of the Law Commission shall
be made available by the Law Commission, online."
c 58. The learned ASG submitted that in view of Clause 'H'
of the terms of reference of the 19th Law Commission, the
present Law Commission can go into the question of making
a proper research and a scientific and empirical study to assess
the requirement of setting up additional courts and making
D available additional infrastructures for ensuring free access to
court and speedier disposal of cases. The learned ASG
submitted that the pendency of cases cannot be tackled by only
setting up additional courts. Various other factors are also
involved including the cooperation of the members of the Bar,
E the quality of legal education, policy of legislation, recruitment
of quality manpower and such other issues which the Law
Commission should urgently address and make
recommendations on.

F 59. The learned ASG also submitted that having regard
to the provision of Article 235 of the Constitution the control over
district and subordinate courts rests with the respective High
Courts in each State. In asses~>ing the requirement of setting
up of additional courts and creating additional benches, the
opinion of the High Court and the State Government have to
G be ascertained including the question of budget allocation to
each State Government. The learned ASG also submitted that
since the Government is keenly interested to address these
problems it is open to any suggestion. It was submitted that any
direction from this Court will help the Government and the Law
H

..
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 805
ORS. [ASOK KUMAR GANGULY, J.]
Commission to tackle this problem in a very effective way. A

60. The Court, upon a detailed and very anxious
consideration of the aforesaid issues and specially huge
pendency of arrears in different High Courts and considering
the stand of the Central Government in its affidavit dated B
18.1.2012 is giving the following directions.

I. Certain directions are given to the High Courts for better
maintenance of the Rule of Law and better administration
of justice:
c
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 D
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 E
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.
.F
(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 G
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 Court has over
District Courts under Article 227 of the Constitution. Like this H
806 SUPREME COURT REPORTS [2012] 1 S.C.R.

A.Court, High Court is equally a Superior Court of Record with
plenary jurisdiction. Under our Constitution High Court is not a
Court subordinate to this Court. This Court, however, enjoys
appellate powers over High Court as also some other incidental
powers. But as the last court and in exercise of this Court's
B power to do complete justice which includes within ii the power
to improve the administration of justice in public interest, this
Court gives the aforesaid guidelines for sustaining common
man's faith in the rule of law and the justice delivery system,
both being inextricably linked.
c II. Certain directions are also given to the Law Commission
which are as follows:

a) Since the Law Commission itself is seized with the
problem and is making investigation having regard
D to its terms of reference specially clause 'H',
thereof, this Court requests the Law Commission,
which is headed by a distinguished retired judge of
this Court, to undertake an enquiry and submit its
recommendation in relation to the following
E matters:-

. I. Keeping in view that timely justice is an important
facet to access to justice, the i~mediate measures
that need to be taken by way of creation of
additional courts and other allied matters (including
F a rational and scientific definition of "arrears" and
delay, of which continued notice needs to be taken),
to help in elimination of delays, speedy clearance
of arrears and reduction in costs. It is trite to add
that the qualitative component of justice must not be
G lowered or compromised; and

II. Specific recommendations whenever considered
necessary on the above aspects in relation to each
State be made as a product of consultative
H processes involving the High Courts and other stake
IMTIYAZ AHMAD v. STATE OF UTTAR PRADESH & 807
ORS. [ASOK KUMAR GANGULY, J.]
holders, including the Bar. A

b) In doing so, the Commission may take such
assistance from the Central Government and the
State Governments as it thinks fit and proper.

c) Accordingly, it is directed that on the Commission's B
request for assistance both the Central
Government and the State Governments shall
render all possible assistance to the Commission
to enable it to discharge its functions, as directed
by this Court in its order. The Commission shall at C
the discretion of its Chairman be free to co-opt
purposes of the enquiry to be undertaken by it. Such
legal & technical, experts as may be considered
necessary by it for an effective and early
completion of the assignment hereby made. D

d) The Commission is requested to submit its report
within six months from the date of this order.

e) Such recommendations be sent to the Registrar
General of this Court in sealed covers. E

62. The matter may appear before the appropriate Bench
after being nominated by the Hon'ble the Chief Justice on the
7th August, 2012 for further consideration by this Court of the
recommendations by the Law Commission and if necessary for F
further directions to be passed in these appeals.

R.P. Matter adjourned.