Holding

The Supreme Court denied bail, holding that while speedy justice is a constitutional right, the denial of bail does not violate Articles 14 and 21, and the matter calls for systemic judicial reforms rather than individual relief.

Summary

Krishanakant Tamrakar, convicted of murder and sentenced to life imprisonment, had been in custody for over ten years while his appeal against the conviction was pending before the Madhya Pradesh High Court. He applied for bail, arguing that the prolonged delay rendered the appeal meaningless. The Supreme Court, while affirming that access to speedy justice is a fundamental right under Articles 14 and 21, declined to grant bail, holding that the remedy of bail is not appropriate in the circumstances. Instead, the Court used the case to highlight the systemic problem of massive pendency of criminal appeals in High Courts and directed the Union of India to consider structural reforms, including a central selection mechanism for judges, creation of intermediate appellate fora, and measures to curb frequent bar strikes. The Court ordered the Union to file an affidavit and to submit a quarterly report on strikes, but dismissed the appellant's bail plea.

Issues considered

Whether the appellant is entitled to bail after more than ten years of incarceration pending a criminal appeal.
Whether denial of bail infringes the fundamental right to speedy justice under Articles 14 and 21 of the Constitution.
What remedial measures are required to address the chronic delay in disposal of criminal appeals before High Courts.

Legislation cited

Code of Criminal Procedure, 1973s. Sec. 167, s. Sec. 436A
Constitution of Indias. Arts. 14, s. Arts. 21, s. Arts. 226, s. Arts. 227

Subjects

speedy justicebailcriminal appealjudicial delayconstitutional courtsjudicial appointmentsbar strikesaccess to justiceArticles 14 and 21judicial reforms

Judgment

1098 [2018]REPORTS
SUPREME COURT 4 S.C.R. 1098 [2018] 4 S.C.R.

A KRISHANAKANT TAMRAKAR
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal No. 470 of 2018)
B MARCH 28, 2018
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Constitution of India:
Arts. 14 and 21 – Access to speedy justice – Appellant-accused
C (sentenced to life imprisonment by trial court) was denied bail during
pendency of his appeal before High Court – Appeal to Supreme
Court on the ground that having been in custody for more than 10
years, remedy of appeal would be meaningless if he were to remain
in custody for full term of sentence – Held: Grant of bail denied –
Access to speedy justice is part of fundamental right under Arts. 14
D and 21 – Direction issued as to remedy the problem of delay in
hearing of criminal appeals – Administration of Justice – Bail.
Disposing of the appeal, the Court
HELD: 1. Access to speedy justice is part of fundamental
right under Articles 14 and 21 of the Constitution. The National
E Commission to Review Working of the Constitution recommended
that access to speedy justice may be incorporated as an express
fundamental right. [Para 16] [1110-F]
Vineet Narayan v. Union of India (1996) 2 SCC 199 :
[1996] 1 SCR 1053; Prakash Singh v. Union of India
F (2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473 – relied on.
Imtiaz Ahmad v. State of U.P. (2012) 2 SCC 688 : [2012]
1 SCR 779; Anita Kushwaha v. Pushap Sudan (2016)
8 SCC 509 : [2016] 9 SCR 560 – referred to.
2.1 The available figures show that long pendency of cases
G particularly of more than five years remains a serious challenge.
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.
H There could not be increase of strength of High Court Judges
1098
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1099
PRADESH

beyond a limit. The system could not be top heavy. Volume of A
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. Disposal of cases in subordinate courts is not enough, if
the same are thereafter held up in the High Courts. New laws
B
are being enacted providing statutory remedies before the High
Courts. Moreover, oversight mechanism for judges of the
Constitutional Courts is not the same as for other Judges. While,
there can be no doubt about need for such protection,
appointment of large number of such judges can be counter
productive. If number of Constitutional Courts is to be increased C
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.
D
Nature of work before the Constitutional Courts particularly
laying down of law is time consuming. Such Courts cannot be
overburdened. [Para 23] [1113-C-E; 1114-A-B]
2.2 In 124th Report of the Law Commission of India (1988)
titled “High Court Arrears – A Fresh Look”, the Law Commission
observed that wherever possible, proliferating appellate and wide E
original jurisdiction should be controlled and curtailed without
impairing the quality of justice. It was observed that the approach
of the Law Commission is to reduce number of appeals, set up
specialist courts/tribunals to reduce the inflow of work to the
High courts. In 272nd report, the Law Commission observed that F
the forum for challenging the order of tribunal should be appellate
tribunals, which decision should be final. No statutory appeal
should be provided before the High Courts or Supreme Court in
routine manner. No action appears to have been taken on the
said recommendations. [Paras 28, 30] [1116-D, F-G]
G
2.3 Since one trial and one appeal are considered to be
components of fair system of administration of justice in criminal
cases of serious nature, adjudication at the original forum and at
one appellate forum must be within reasonable time which should
not normally exceed one to two years, as noted by the Law
H
1100 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Commission and the Malimath Commission. At the same time,
multiple layers of remedies need to be eliminated. Article 227
remedy, is meant primarily against perversity or patent error in a
judgment. [Para 31] [1117-A-B]
2.4 From the data available it is clear that all the steps taken
B by the Central Government so far have not significantly improved
the situation of speedy disposal of criminal appeals. The steps
taken are set off by increased volume of work or otherwise.
Therefore, 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,
C 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 may also need to be considered. [Paras
D 32, 33] [1117-C-D]
2.5 In the light of 24 th and 272 nd Reports of the Law
Commission of India, judgment of this Court in *Gujarat Urja
case, the Minutes of the Arrears Committee of Supreme Court
dated 8th April, 2017 and all other relevant considerations, the
E concerned authorities may examine whether there is need for
any changes in the judicial structure by creating appropriate fora to
decongest the Constitutional Courts so as to realistically achieve
the constitutional goal of speedy justice. [Para 52] [1129-B-C]
*Gujarat Urja Vikas Nigam Limited v. Esssar Power
F Limited (2016) 9 SCC 103 : [2016] 5 SCR 101 – relied on.
P. Ramchandra Rao v. State of Karnataka (2002) 4 SCC
578; Imitiyaz Ahmad v. State of Uttar Pradesh and Ors.
(2017) 3 SCC 658; Akhari Bi v. State of M.P. (2001) 4
SCC 355 : [2001] 2 SCR 626; Radhey Shyam v. Chhabi
G Nath (2015) 5 SCC 423 : [2015] 3 SCR 197; Sita Ram
v. State of U.P. (1979) 2 SCC 656 – referred to.
3.1 Timely filling up of vacancies at all levels with the best
available talent also need to be considered immediately. The 14th
Law Commission in its Report in the year 1958 examined the
issue of having best talent for subordinate judiciary. It suggested
H
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1101
PRADESH

selection by all India level competition and constitution of All A
India Judicial Service. [Para 34] [1117-E-F]
3.2 Setting up of Central Selection Mechanism will go a
long way in having timely appointments of best available talent.
Steps in this regard may be taken by the concerned authorities
without delay so that timely and quality appointments can be B
ensured. [Para 35] [1118-C-D]
3.3 Primacy in appointment of Constitutional Courts is of
the Chief Justice of India. Even without affecting such primacy,
improvement in working of Collegium is a felt necessity. Five
Judge Bench of this Court directed setting up of the Secretariat C
and also to incorporate other factors for improved and effective
working of the collegiums system. This apart, corrective measures
against post appointment conduct or inadequate performance or
failure to uphold righteous conduct need to be evolved. These
aspects require urgent attention of concerned authorities. [Para
39] [1121-E-F; 1122-A] D

3.4 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
case that there will be no Acting Chief Justice for more than one E
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. The Central Government must
take all steps to ensure such appointments as per prescribed F
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 G
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. Felt needs
of time must be addressed. The system cannot remain static or
unconcerned even when problems are patent. There appears to H
1102 SUPREME COURT REPORTS [2018] 4 S.C.R.

A be dire need to strengthen the system of timely appointment of
Judges, particularly Chief Justices. Identification of candidates,
scrutiny, evaluation and post-appointment performance
measurements and conduct are time consuming processes and
at least some independent full time experts are required, if timely
and best appointments are to be ensured and requisite in-house
B
oversight is to be a reality. A full time body consistent with
independence of judiciary appears to be immediate need for the
system. Absence thereof contributes to denial of justice. The
Central Government must also ensure that MOP in pursuance of
order of this Court in NJAC case dated 16th December, 2015
C brings about the improvements in working of the collegiums as
stipulated. [Para 40] [1122-B-F; 1123-A]
3.5 In view of 14th Report of the Law Commission of India,
judgment of this Court in ***All India Judges’ Association case,
the Minutes of the Arrears Committee of this Court dated 8th
D 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
E Courts at all levels. [Para 52] [1129-D-E]
***All India Judges’ Association v. Union of India
(1992) 1 SCC 119 : [1991] 2 Suppl. SCR 206; Malik
Mazhar Sulta (3) and Anr. v. U.P. Public Service Common
& Ors. (2008) 17 SCC 703; All India Judges’
F Association v. UOI (2002) 4 SCC 247 : [2002] 2 SCR
712; **Supreme Court Advocates-on-Record Association
vs. Union of India (1993) 4 SCC 441 : [1993] 2 Suppl.
SCR 659; Special President Reference under Aticle 143
(1) Relating to Judges Transfer and Appointment (1998)
G 7 SCC 739 : [1998] 2 Suppl. SCR 400; Supreme Court
Advocates-on-Record Association v. Union of India
(2016) 5 SCC 1 – relied on.
Re: Sri Justice C.S. Karnan (2017) 7 SCC 1 – referred to.
4. There is also a need for mechanism to evaluate and
H compile performance of the judicial system as per observations
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1103
PRADESH

in 245 th Report of the Law Commission so that there is non- A
mandatory timeline for decision of cases and accountability
consistent with the right of speedy justice. Such mechanism may
provide norms for performance measurement for all judges in
the hierarchy. The same has to be done without affecting
independence of judiciary. There is also need for an in-house
B
mechanism manned by experts but with safeguards consistent
with independence of judiciary for measures against erring Judges
other than impeachment. [Para 41] [1123-C-D]
Re: Sri Justice C.S. Karnan (2017) 7 SCC 1 – referred to.
5.1 The Bar has the tradition of placing their professional C
duty of assisting the access to justice above every other
consideration. At some places there are frequent strikes,
seriously obstructing access to justice. Even cases of persons
languishing in custody are delayed on that account. By every
strike, irreversible damage is suffered by the judicial system,
particularly consumers of justice. They are denied access to D
justice. Tax payers’ money is lost on account of judicial and public
time being lost. Nobody is accountable for such loss and
harassment. [Paras 42, 44] [1123-E-F; 1124-B]
5.2 Since the strikes are in violation of law laid down by
this Court, the same amount to contempt and at least the office E
bearers of the associations who give call for the strikes cannot
disown their liability for contempt. Every resolution to go on
strike and abstain from work is per se contempt. Even if
proceedings are not initiated individually against such contemnors
by the court concerned or by the Bar Council concerned for the F
misconduct, it is necessary to provide for some mechanism to
enforce the law laid down by this Court, pending a legislation to
remedy the situation. [Para 50] [1128-D]
5.3 The Law Commission in its 266th Report found that such
conduct of the advocates affects functioning of courts and G
particularly it contributes to pendency of cases. It analyzed the
data on loss of working days on account of call of strikes. [Para
47] [1124-G; 1125-A]
5.4 With a view to enforce fundamental right of speedy
access to justice under Articles 14 and 21 of the Constitution
H
1104 SUPREME COURT REPORTS [2018] 4 S.C.R.

A and law laid by this Court, it is necessary to direct the Ministry of
Law and Justice to present at least a quarterly report on strikes/
abstaining from work, loss caused and action proposed. The
matter can thereafter be considered in its contempt or inherent
jurisdiction of this Court. The Court may, having regard to the
fact situation, hold that the office bearers of the Bar Association/
B
Bar Council who passed the resolution for strike or abstaining
from work, are liable to be restrained from appearing before any
court for a specified period or until such time as they purge
themselves of contempt to the satisfaction of the Chief Justice of
the concerned High Court based on an appropriate undertaking/
C 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 filed by them. This may be in
addition to any other action that may be taken for the said illegal
acts of obstructing access to justice. The matter may also be
D
considered by this Court on receipt of a report from the High
Courts in this regard. This does not debar report/petition from
any other source even before the end of a quarter, if situation so
warrants. [Para 51] [1128-E-H; 1129-A]
Ex-Capt. Harish Uppal v. Union of India and Anr. (2003)
E 2 SCC 45 : [2002] 5 Suppl. SCR 186; Mahipal Singh
Rana v. State of Uttar Pradesh (2016) 8 SCC 335 –
relied on.
Kashmira Singh v. State of Punjab (1977) 4 SCC 291 :
[1978] 1 SCR 385; State of Punjab v. Brijeshwar Singh
F (2016) 6 SCC 1 : [2016] 4 SCR 685 – referred to.
Case Law Reference
[1978] 1 SCR 385 referred to Para 3
[1996] 1 SCR 1053 relied on Para 6
[2006] 6 Suppl. SCR 473 relied on Para 6
G
[2016] 4 SCR 685 referred to Para 8
[2016] 9 SCR 560 referred to Para 16
[2012] 1 SCR 779 referred to Para 17
(2002) 4 SCC 578 referred to Para 19
H (2017) 3 SCC 658 referred to Para 20
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1105
PRADESH

[2001] 2 SCR 626 referred to Para 21 A
[2015] 3 SCR 197 referred to Para 26
(1979) 2 SCC 656 referred to Para 26
[2016] 5 SCR 101 relied on Para 29
[1991] 2 Suppl. SCR 206 relied on Para 34
B
[2002] 2 SCR 712 relied on Para 34
(2008) 17 SCC 703 relied on Para 36
[1993] 2 Suppl. SCR 659 relied on Para 36
[1998] 2 Suppl. SCR 400 relied on Para 36
(2017) 7 SCC 1 referred to Para 38 C
[1993] 2 Suppl. SCR 659 relied on Para 40
[2002] 5 Suppl. SCR 186 relied on Para 45
(2016) 8 SCC 335 relied on Para 52
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 470 of 2018. D

From the Judgment and Order dated 03.05.2017 of the High Court
of M.P., Principal seat at Jabalpur in Criminal Appeal No. 1823 of 2009.
Gopal Subramanium, Sr. Adv. (AC), Talha Rahman, Pavan
Bhushan, Hitesh Saini, Dr. Ajay Kumar, Tuhin Lavania, Mahendra Singh, E
Nandlal Kumar Mishra, Ram Kishor Singh Yadav, Ms. Sunita Yadav,
Ms. Miranda, Kaushal Yadav, S. S. Shamshery, Ms. Hari Priya, M. K.
Maroriya, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. Leave granted. This appeal F
has been preferred against the order dated 3rd May, 2017 of the High
Court of Madhya Pradesh in CRA No.1823 of 2009 whereby prayer for
bail, pending disposal of criminal appeal against life sentence has been
declined though the appellant has been in custody for more than ten
years.
G
2. The appellant stands convicted under Sections 148, 302/149
IPC and sentenced to life imprisonment, apart from other sentences.
According to the prosecution, on 23rd June, 2005 at 11.30 A.M., the
appellant along with the co-accused caused the murder of one Shahid.
In view of evidence in support of the charge, the trial Court convicted
H
1106 SUPREME COURT REPORTS [2018] 4 S.C.R.

A and sentenced the appellant. The appellant applied for bail pending
consideration of appeal before the High Court. After the said prayer
was rejected, another application was filed. The High Court rejected the
second bail application with the observation that the evidence on record
did not warrant grant of bail.
B 3. In this appeal, the order of the High Court is challenged mainly
on the ground that the appellant had been in custody for more than ten
years and the remedy of appeal will be meaningless if he has to remain
in custody for the full term of sentence. Reliance has been placed on
the judgment of this Court in Kashmira Singh versus State of Punjab1.
C THE ISSUE
4. When the matter came up for consideration before this Court,
following order was passed :
“The grievance of the petitioner is that he has been in
custody for more than ten years. He has neither been granted
D bail nor his appeal is heard. It is stated that there is no
likelihood of the appeal being heard before the High Court
in the near future.
While we are not inclined to grant bail, we issue notice
confined to the question as to how the situation can be
remedied ensuring that the appeal is heard within a
E reasonable time at the appellate forum.
Issue notice. Notice be also issued to the Convenor, National
Mission for Justice Delivery and Legal Reforms i.e. the
Secretary Justice – Union of India and also the Attorney
General of India.
F Shri Gopal Subramanium, learned senior counsel who is
present in the Court is requested to assist the Court as
amicus.”
5. Accordingly, we have heard learned Attorney General and the
learned amicus on the question as to how the problem of delay in hearing
G of the appeals can be remedied.
SUBMISSIONS OF THE LEARNED AMICUS
6. Learned Amicus submitted that timely justice is essential for
the Rule of Law. Access to justice is a fundamental right under the
Constitution of India. It is also recognized under Article 10 of the Universal
H 1
(1977) 4 SCC 291
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1107
PRADESH [ADARSH KUMAR GOEL, J.]

Declaration of Human Rights as well as Articles 9 and 14 of the A
International Convention on Civil and Political Rights. There is, thus,
dire need to find practical, effective and achievable system for speedy
disposal of appeals. In its 245th Report in the year 2014, the Law
Commission of India made analysis for method of computing adequate
judge-strength and recommended increase of number of judges on that
B
basis. In Vineet Narayan versus Union of India2, this Court held that
the Government agencies must perform their legal obligations as per
mandate of Article 14 of the Constitution. In Prakash Singh versus
Union of India3, this Court directed police reforms to be brought about
for scientific, speedy and quality investigation. The United States Speedy
Trial Act, 1974 provides timelines for steps in justice delivery. Timeline C
provided in different statutes in India, such as filing of charge sheets
under Section 167 Cr.P.C. is required to be implemented. Project of
National Arrears Grid was required to be implemented. The Woolf Report
of 1996 emphasized generation of accurate judicial statistics on a daily
basis. The Grid should help identify the steps for dispensation of justice
D
concerning the poor and the underprivileged. Case Management practices
should be implemented. In its report titled ‘Delaying Justice is Denying
Justice’ the Candian Standing Senate Committee on Legal and
Constitutional Affairs stated “the lack of robust case and case flow
management is perhaps the most significant factor contributing to delays”.
In England and Wales, pre-trial case management is rigorously followed E
in all criminal cases at both the trial and the appellate levels. Active case
management includes:
“(i) The early identification of the real issues;
(ii) Achieving certainty as to what must be done, by whom,
and when, in particular by the early setting of a timetable
F
for the progress of the case;
(iii) Monitoring the progress of the case and compliance
with directions;
(iv) Discouraging delay, dealing with as many aspects of
the case as possible on the same occasion, and avoiding
unnecessary hearings; G
(v) Encouraging the participants to co-operate in the
progression of the case, and
(vi) Making use of technology.”
2
(1996) 2 SCC 199
3
(2006) 8 SCC 1 H
1108 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 7. Reference was also made to Case Management Criminal
Procedure in England and Wales.
8. Learned Amicus further submitted that in appeals against
acquittal efforts should be made to weed out unmeritorious appeals.
Competent Government advocates should be appointed by a fair and
B transparent mechanism as laid down in State of Punjab versus
Brijeshwar Singh4.
9. Vacancies of the High Court Judges should be filled up well
before the date a judge demits the office. Ad hoc judges should be
appointed to deal with the pending appeals.
C 10. Wherever there is higher pendency of appeals, the same can
be transferred to the courts of concurrent jurisdiction of other States.
Technology ought to be used to facilitate speedy conduct of trials and
disposal of appeals. Electronic copy of all papers should be served as
soon as a charge sheet is filed. The technology can be used for speedy
D and summary disposal of certain cases such as the traffic offences.
Evidence can be recorded by video conferencing, especially for Doctors
and investigating officers who may be on outstation job and engaged in
official duties which suffer if they have to physically come to the court.
There must be change in the work culture amongst the members of the
bar as well as the police. Efforts should be made to avoid adjournments.
E Time table should be laid down for hearing of appeals which should be
strictly adhered to.
SUBMISSIONS OF LEARNED ATTORNEY GENERAL
11. Learned Attorney General submitted that the Government has
F adopted a coordinated approach to assist the judiciary for liquidation of
arrears and pendency by providing better infrastructure for courts
including computerization, increase in strength of judges, policy and
legislative measures in the areas prone to excessive litigation and
emphasis on human resource development. ECourts Mission Mode
Project has been introduced. Computerized courts have been increased
G to 16,089. Cost of Rs.1,670 crores has been approved for the purpose.
Video Conferencing facility has been operationalised in 500 courts and
prisons. Natinal Judicial Data Grid has information regarding 6.36 crores
decided and 2.5 crores pending cases. 5.24 crores orders/judgments are
available. Steps have been taken to fill up vacancies in Supreme Court
4
H (2016) 6 SCC 1
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1109
PRADESH [ADARSH KUMAR GOEL, J.]

and High Courts. Appointment of Judges and judicial officers in district A
and subordinate courts is within the domain of the High Courts and the
State Governments. A total of Rs.5956 crores have been released under
Centrally Sponsored Scheme (CSS) for Development of Infrastructure
facilities for the Judiciary. 17,576 Court Halls and 14,363 Residential
Accommodations are available for the Judges/Judicial Officers of District
B
and Subordinate Courts. In addition, 2,852 Court Halls and 1,622 houses
are under construction. 14th Finance Commission has endorsed the
proposal to strengthen the judicial system by establishing 1800 Fast Track
Courts (FTCs) for five years for specified offences at a cost of 4,144
crores. As per resolution of the Joint Conference of Chief Justices and
Chief Ministers, the Government has requested the State Governments C
to strengthen institutional mechanism between the State and the Judiciary.
Steps have been taken for timely completion of infrastructure and eCourts
Mission Mode project. There is need to implement Section 436A Cr.P.C.
and ensure periodic monitoring of under-trial Review Committee
Mechanism. The Commercial Courts, Commercial Division and
D
Commercial Appellate Division of High Court Act, 2015 has been notified
to streamline the conduct of cases in Commercial Division and
Commercial Courts. Amendments have been made in the Arbitration
and Conciliation Act, 1996 and the Negotiable Instruments Act, 1881.
In pursuance of resolution of Chief Justices’ Conference held in April,
2015, Arrears Committees have been set up to clear backlog of cases E
pending from more than five years. The Supreme Court has also
constituted Arrears Committee to formulate steps and reduce pendency
of cases in High Courts and district courts. National Legal Services
Authority provides mechanisms for access to justice for the poor. Lok
Adalats have been held resulting in disposal of number of cases on the
F
basis of compromise not requiring adjudication, apart from adjudication
in public utility Lok Adalats. The Government has approved scheme for
engaging Nyaya Mitras to assist the litigants.
12. Learned Attorney General submitted that delay in disposal of
appeals can be tackled by appointing more judges and by better
coordination and planning. It was also submitted that by proper scrutiny, G
application for leave to appeal or even appeals can be summarily disposed
of which will reduce the burden of the courts.
13. We place on record our gratitude for the learned Amicus and
learned Attorney General for their valuable assistance rendered.
H
1110 SUPREME COURT REPORTS [2018] 4 S.C.R.

A CONSIDERATION OF THE ISSUE
14. Even though initially notice was issued to consider the issue
of remedying the situation of delay in hearing of the criminal appeals
before the High Courts, learned amicus and learned Attorney General
addressed the Court generally on the issue of speedy justice at all levels.
B We consider it appropriate to reflect on some important aspects of speedy
justice as these aspects are integral to the issue of delay in hearing of
criminal appeals by the High Courts. First question which we take up
for consideration is whether, having regard to the nature of jurisdiction
of the High Court and the present volume of the work, the expectation
for speedy disposal of criminal appeals is realistic or there is need for re-
C engineering of the judicial structure. Secondly, when speedy justice is
directly linked to timely appointment of best talent, whether there is need
to revisit the existing system of appointment of judges at all levels. Thirdly,
what can be the mechanism to plan and oversee the best management
practices, including employment of technology, for optimum performance
D and righteous conduct. Fourth, how uncalled for frequent strikes obstructs
access to justice and what steps are required to remedy the situation.
15. We are conscious that the above issues are primarily policy
matters. The subject matter of restructuring of courts and administration
of justice is a matter to be gone into by the executive and the legislature.
E However, since the subject affects fundamental right of speedy justice,
this Court cannot refuse to look into the problem repeatedly presented to
it with a view to draw attention of all concerned, leaving to the concerned
authorities to consider and act in the matter.
16. There can be no dispute that access to speedy justice is part
F of fundamental right under Articles 14 and 21 of the Constitution. The
National Commission to Review Working of the Constitution
recommended that access to speedy justice may be incorporated as an
express fundamental right5.
17. The matter has been subject of consideration in several
G decisions. In Imtiaz Ahmad versus State of U.P.6 the issue taken up
for consideration was delay in disposal of criminal cases where stay
was granted by the High Court. On consideration of a report, the Court
noted:
5
Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, para 31
6
(2012) 2 SCC 688
H
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1111
PRADESH [ADARSH KUMAR GOEL, J.]

“(a) As high as 9% of the cases have completed more than A
twenty years since the date of stay order.
(b) Roughly 21% of the cases have completed more than ten
years.
(c) Average pendency per case (counted from the date of
stay order till 26-7-2010) works out to be around 7.4 years. B
(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 prominent stages
are found to be ‘appearance’ and ‘summons’, with each
comprising 19% of the total number of cases. If C
‘appearance’ and ‘summons’ are considered
interchangeable, then they would collectively account for
the maximum of stay orders.”
18. This Court directed the Law Commission to examine the matter
with a view to set up additional courts to eliminate delays.
D
19. Accordingly, Law Commission examined the matter in its 245th
Report given in July, 2014 and recommended review of cadre strength.
The Commission noted that the system was unable to deliver timely
justice because of huge backlog for which the judge strength was
inadequate. It noted that mandatory time frames were provided in some
countries. In P. Ramchandra Rao versus State of Karnataka7, this E
Court was not in favour of mandatory time limit. Non binding directory
guidelines could be adopted. 14th Report of the Law Commission
suggested time frame which was reiterated in subsequent Law
Commission reports. The Malimath Committee recommended use of
two year time frame as the norm by which delay and arrears in the F
system should be measured. Case specific time tables are adopted to
meet the object of individualized timely justice. The Commission
observed that all cases pending for more than one year be
categorized as backlogged. All cases backlogged in three years
and current cases be decided within one year. The Commission
considered various methods for fixing the judge strength so as to meet G
current institution of cases within the expected time frame as well as
also to clear the arrears within the targeted time. One of the problems
noticed was huge vacancies and failure in timely filling up of vacancies.
7
(2002) 4 SCC 578
H
1112 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Delay and arrears was a concern not only in the trial courts but throughout
the judicial system. If the disposal in trial courts increased, the matter
may be held up in the higher courts. Adequate infrastructure and support
staff was also of importance. Good Judicial management practices such
as timeliness and performance bench marks were also discussed. It
was observed that the High Courts are already backlogged and not able
B
to keep pace with new filings. It was observed that there was need to
establish non-mandatory timeframe for different types of cases. Unless
judges and litigants have clear expectations, there will be little
accountability for delays.
20. Thereafter, the matter was considered in Imtiyaz Ahmad
C versus State of Uttar Pradesh and Ors.8. This Court gave directions
for review of cadre strength in terms of principles laid down therein.
However, the said judgment appears to have dealt with the issue of
fixing up of strength of judges for the subordinate judiciary and
infrastructure for the district judiciary9.
D Possibility of decision of five year old cases pending in the High
Courts particularly the criminal appeals within the existing
system – Need to consider decongestion of Constitutional Courts.
21. In Akhtari Bi versus State of M.P.10, this Court requested
the Chief Justices of the High Courts to take immediate effective steps
E for disposal of criminal appeals pending for more than five years.
22. The matter was considered by the Joint Conference of Chief
Ministers and the Chief Justices held in April, 2016 and it was resolved:
“8. DELAY AND ARREARS COMMITTEE:
F xxx xxx xxx
Resolved that
(i) all High Courts shall assign topmost priority for disposal
of cases which are pending for more than five years;
G (ii) High Courts where arrears of cases pending for more
than five years are concentrated shall facilitate their disposal
in mission mode;

8
(2017) 3 SCC 658
9
Para 43
H 10
(2001) 4 SCC 355
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1113
PRADESH [ADARSH KUMAR GOEL, J.]

(iii) High Courts shall progressively thereafter set a target A
of disposing of cases pending for more than four years;
(iv) while prioritising the disposal of cases pending in the
District Courts for more than five years, additional incentives
for the Judges of the District Judiciary be considered where
feasible; and B
(v) efforts be made for strengthening case-flow management
rules.”
23. The available figures11 show that long pendency, particularly
of more than five years remains a serious challenge. In High Courts,
16.29 lakhs cases were more than five years old. 7.43 lakh cases were C
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 D
account of increased disposal of cases in subordinate courts with the
increased strength of judges, infrastructure and other steps being taken.
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. Moreover, oversight
mechanism for judges of the Constitutional Courts is not the same as for E
other Judges12. While, there can be no doubt about need for such
protection, appointment of large number of such judges can be counter
productive. If number of Constitutional Courts is to be increased to match

11
Please refer to Court News – October-December, 2016 in Supreme Court Website F
(www.supremecourtofindia.nic.in) or (http://supremecourtofindia.nic.in/pdf/
CourtNews/COURT_NEWS_Vol_XI_Issue_No4_October_to_December_2016.pdf)
12
(1997) 3 SCC 261 – para 78 “ … …The Judges of the superior courts have been
entrusted with the task of upholding the Constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure that the balance of
power envisaged by the Constitution is maintained and that the legislature and the G
executive do not, in the discharge of their functions, transgress constitutional limitations.
It is equally their duty to oversee that the judicial decisions rendered by those who man
the subordinate courts and tribunals do not fall foul of strict standards of legal
correctness and judicial independence. The constitutional safeguards which ensure
the independence of the Judges of the superior judiciary, are not available to the
Judges of the subordinate judiciary or to those who man tribunals created by
ordinary legislations. …” H
1114 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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.
B
Such Courts cannot be overburdened.
24. The Arrears Committee of this Court considered the issue of
filling up of vacancies in subordinate courts and the issue of arrears. It
was noted that while better monitoring, better management and other
steps such as the Central Selection may help speedy disposal in
C subordinate courts, the working of constitutional courts stands on different
footing. There being mismatch in pendency and disposal, the Committee
recommended an interaction with the stakeholders to explore the issues
of judicial reforms including reengineering of structure of administration
of justice and the legislative changes necessary for the constitutional
D goal of speedy justice13. Accordingly, a meeting with the stakeholders
was held on 8th April, 2017. The issues considered were:
“i) Decongestion of Supreme Court and High Courts from civil
and criminal appeals.
ii) Performance of Tribunals in contribution to decongestion
E of cases in Supreme Court and High Courts.
iii) Central Selection Mechanism to fill up vacancies in
subordinate courts.
iv) Video recording and conferencing in Courts & video
F investigation by investigating authorities.
v) Reforms in Legal Profession.
vi) Issue of granting Bail and under Trials.”
25. In the said meeting, it was noticed that in most of the High
Courts disposal was less than the institution. This called for reengineering
G of structure of administration of justice. One of the suggestions was that
statutory remedies provided before the constitutional courts may be shifted
to alternative fora. It was suggested that Courts of Appeals may be set
up higher to the District Courts but below the High Court. Such Courts
13
Minutes of the meeting of the Arrears Committee held on 23rd March, 2017
H
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1115
PRADESH [ADARSH KUMAR GOEL, J.]

of Appeals could comprise more than one member, partly drawn from A
the senior district judges and partly recruited directly from the Bar through
a Central Selection Mechanism14. If above proposal is considered,
pending appeals before the High Court could be transferred to such
Benches whose decisions will be final.
26. An enabling statute could be enacted whereby the State could, B
in consultation with the High Courts, transfer all or certain categories of
14
Relevant extract from the minutes of meeting of the Arrears Committee held on 8 th
April, 2017:
“Reference to the available statistics shows that pendency of more than five year old
cases in the High Courts was more than 40% of the total pendency in the High Courts
and figures of five year old cases were on the increase. Criminal Appeals in most of the C
High Courts were pending for more than five years and there was no possibility of such
appeals being taken up for hearing to satiate the aspirations of the common litigant of
speedy justice. In most of the High Courts disposal of Criminal Appeals was less than
the institution. Delay in decision of criminal cases, particularly in category of serious
cases where granting bail was not safe, was not a satisfactory situation. Unless there
was an alternative to ensure speedy disposal for criminal cases in the High Courts, D
search for structural alternative was the imperative need of the hour. There are other
areas of appellate jurisdiction in the High Court including second appeals, matrimonial
matters, accidental claim cases, land acquisition cases which also require prompt disposal,
but the same get clogged at the High Court level because of the high pendency of the
cases in the High Courts and time taken in decision of such appeals. The statistics show
that in most of the High Courts the disposal was less than the institution and as many
as 16.29 lakh cases were more than five years old. Figure of 10 year old cases is 7.43 E
lakhs in the High Courts and more than 20 lakhs in the subordinate courts.
Thus, there is need for re-engineering of the structure of administration of justice by
which the Supreme Court and the High Courts may discharge only core constitutional
functions while the statutory appeals or other statutory functions can be dealt with by
an alternative mechanism by courts of appeal which, in hierarchy will be higher to the
district judges but below the High Court. Such cadre may comprise of members drawn
partly by selection from the Higher Judicial Service and partly from the Bar through F
Centralised Recruitment Mechanism. It may be possible to lay down disposal norms/
targets to be achieved by such benches and in light thereof number of benches within
the jurisdiction of each High Court may be assessed. Pending appeals or at least certain
categories of appeals can be transferred to such Benches. Based on performance, integrity
and suitability, members of the appellate benches may be considered for elevation to
the High Courts. Remedy to move the High Court under Articles 226/227 will remain
intact. Apprehension was expressed by some of the participants that creating another
G
Appellate Forum may not necessarily result in reducing the 4 docket load of the High
Courts and Supreme Court. Because, going by the present trend there is a tendency of
every litigation being carried to the higher Forum and at least till the High Court if not
the Supreme Court. However, the scope of interference in constitutional jurisdiction of
the High Courts under Article 226/227 is circumscribed and not the same as deciding
appeals on facts and law.” H
1116 SUPREME COURT REPORTS [2018] 4 S.C.R.

A appeals or other statutory proceedings from the High Courts to the
alternative fora. Constitutional remedies will remain intact. It was
explained that this would not be creating one extra forum resulting in
longer duration of litigation instead of speedy disposal. The constitutional
remedy under Article 227 was different from statutory appeal15.
B 27. Suggestions considered in the meeting also include
restructuring of the Tribunals, reforms in legal profession, online grievance
redressal mechanism against administrative decisions with specified time
limits at par with the Right to Information Act (RTI), summary procedures
for civil and criminal disputes of certain categories16. The matter was
also considered thereafter in the meeting of Arrears Committee of the
C Supreme Court with the Arrears Committees of the High Courts17.
28. In 124th Report of the Law Commission of India (1988) titled
“High Court Arrears – A Fresh Look”, the Law Commission observed
that wherever possible, proliferating appellate and wide original jurisdiction
should be controlled and curtailed without impairing the quality of justice.
D It was observed that the approach of the Law Commission is to reduce
number of appeals, set up specialist courts/tribunals to reduce the inflow
of work to the High courts.
29. Desirability of amending provisions of direct appeal to this
Court was also considered in Gujarat Urja Vikas Nigam Limited
E versus Essar Power Limited18. Therein, this Court considered the
unique role of the highest court and observed that overburdening of
Constitutional Courts was undesirable for functioning of the Constitution.
Heavy work of routine nature before Constitutional Courts affected their
assigned core role. Law Commission was asked to look into the matter.
F 30. In 272nd report, the Law Commission observed that the forum
for challenging the order of tribunal should be appellate tribunals, which
decision should be final. No statutory appeal should be provided before
the High Courts or Supreme Court in routine manner19. No action appears
to have been taken on the said recommendations.
G 15
Radhey Shyam versus Chhabi Nath (2015) 5 SCC 423; Sita Ram versus State of
U.P. (1979) 2 SCC 656
16
Minutes of the interaction of the Arrears Committee for Supreme Court & High
Courts held on 8th April, 2017
17
Minutes of the interaction of the Arrears Committee for Supreme Court & High
Courts held on 22nd April, 2017
18
(2016)9 SCC 103
H 19
8.23 of the Law Commission Report
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1117
PRADESH [ADARSH KUMAR GOEL, J.]

31. Since one trial and one appeal are considered to be components A
of fair system of administration of justice in criminal cases of serious
nature20, adjudication at the original forum and at one appellate forum
must be within reasonable time which should not normally exceed one to
two years, as noted by the Law Commission and the Malimath
Commission. At the same time, multiple layers of remedies need to be
B
eliminated. Article 227 remedy, as earlier observed, is meant primarily
against perversity or patent error in a judgment.
32. From the data available it is clear that all the steps taken by
the Central Government so far have not significantly improved the
situation of speedy disposal of criminal appeals. The steps taken are set
off by increased volume of work or otherwise. C

33. Accordingly, 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 D
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.
Filling up of vacancies at all levels with the best available talent
E
34. Apart from the above, the steps which need immediate
consideration include timely filling up of vacancies at all levels with the
best available talent. The 14th Law Commission in its Report in the year
1958 examined the issue of having best talent for subordinate judiciary.
It suggested selection by all India level competition and constitution of
All India Judicial Service. In All India Judges’ Association versus F
Union of India21 this Court observed that the Union of India should
take steps in the matter as early as possible. This Court also directed
vacancies at all levels be filled up in a time bound manner22. The uniform
method of recruitment was directed to be followed by amending the
applicable rules23. G

20
Dadu alias Tulsidas versus State of Maharashtra (2000) 8 SCC 437, para 17
21
(1992) 1 SCC 119 – para 12
22
(2008) 17 SCC 703 – Malik Mazhar Sultan (3) and Anr. Versus UP Public Service
Commn & Ors – para 7
23
(2002) 4 SCC 247– All India Judges’ Association versus UOI, para 27 H
1118 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 35. Relying upon the minutes of the Arrears Committee of this
Court dated 8th April, 2017 that a central selection mechanism may be
introduced to timely fill up all the vacancies with the best available talent,
the Department of Justice, Government of India vide letter dated 28th
April, 2017, addressed to the Secretary General of this Court, stated that
the idea of Central Selection Mechanism ought to be considered. The
B
said letter was treated by the then Chief Justice of India as Suo Motu
Writ (Civil)No. 1 of 2017 (In Re: Central Selection Mechanism for
Subordinate Judiciary versus Union of India & Ors) and notices
were issued. Learned amicus gave a note on the Central Selection
Mechanism which was circulated to all the States and the High Courts
C vide order dated 28th July, 201724. The matter is, however, still pending.
We refrain from expressing any view on the judicial order to be passed.
Needless to say that setting up of Central Selection Mechanism will go
a long way in having timely appointments of best available talent. Steps
in this regard may be taken by the concerned authorities25 without delay
so that timely and quality appointments can be ensured.
D
36. Appointment to constitutional courts is governed by the
Collegium system as laid down in judgments of this Court in Supreme
Court Advocates-on-Record Association versus Union of India 26
and Special President Reference under Article 143(1) Relating to
Judges Transfer and Appointment27. Vide 99th Amendment to the
E Constitution, the said system was sought to be replaced by the National
Judicial Appointment Commission (NJAC). The said Amendment was
struck down by this Court in Supreme Court Advocates-on-Record
Association versus Union of India28. However, it was observed that
24
“1. We are tentatively of the view, that the objections raised by a few of the High
F Courts for centralization of the selection process of Subordinate Judges, have been
suitably dealt with in our order dated 10.7.2017. It however seems, that some confusion
still persists. This obviously is out of a possible mis-communication. We therefore,
consider it just and appropriate to request Mr. Arvind P. Datar, learned Amicus Curiae,
to prepare a ‘Concept Note’, highlighting the various aspects of our order dated 10.7.2017
and indicating how the objections raised stand satisfied. The ‘Concept Note’ shall be
G placed on the record of this case, and circulated amongst learned counsel representing
the States or the High Courts, before the next date of hearing.
2. List again on 4.8.2017, at 3.00 p.m”
25
See Entry 11A, List III, Seventh Schedule to the Constitution
26
(1993) 4 SCC 441, para 478(13), paras 480, 486
27
(1998) 7 SCC 739, para 44
28
(2016) 5 SCC 1 – para 1255
H
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1119
PRADESH [ADARSH KUMAR GOEL, J.]

the functioning of Collegium System needed to be improved 29 A
Accordingly, while upholding the Amendment, the Court vide order dated
16th October, 2015 directed:
29
(2016) 5 SCC 1 – Chelameswar, J – Para 1236; Lokur, J – para 969; Kurian, J. – para
990; Goel, J. – para 1111 :
1236. ….The abovementioned two are not the only cases where the system failed. B
It is a matter of public record that in the last 20 years, after the advent of the Collegium
System, a number of recommendations made by the Collegia of the High Courts came
to be rejected by the Collegium of the Supreme Court. There are also cases where the
Collegium of this Court quickly retraced its steps having rejected the recommendations
of a particular name made by the High Court Collegium giving scope for a great deal of
speculation as to the factors which must have weighed with the Collegium to make such
a quick volte face. Such decisions may be justified in some cases and may not in other C
cases. There is no accountability in this regard. The records are absolutely beyond the
reach of any person including the Judges of this Court who are not lucky enough to
become the Chief Justice of India. Such a state of affairs does not either enhance the
credibility of the institution or good for the people of this country.
969. The result of this declaration is that the “Collegium System” postulated by the
Second Judges case [(1993) 7 SCC 441] and the Third Judges case [Spl. Ref.1 of 1998,
In Re.1998 7 SCC 739] gets revived. However, the procedure for appointment of
D
Judges as laid down in these decisions read with the (Revised) Memorandum of
Procedure definitely needs fine tuning. We had requested the learned counsel, on the
close of submissions, to give suggestions on the basis that the petitions are dismissed
and on the basis that the petitions are allowed. Unfortunately, we received no response,
or at best a lukewarm response.
990. All told, all was and is not well. To that extent, I agree with Chelameswar, J. that E
the present Collegium System lacks transparency, accountability and objectivity. The
trust deficit has affected the credibility of the Collegium System, as sometimes observed
by the civic society. Quite often, very serious allegations and many a time not unfounded
too, have been raised that its approach has been highly subjective. Deserving persons
have been ignored wholly for subjective reasons, social and other national realities were
overlooked, certain appointments were purposely delayed so as either to benefit vested
choices or to deny such benefits to the less patronised, selection of patronised or F
favoured persons were made in blatant violation of the guidelines resulting in unmerited,
if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting
the self-respect and dignity, if not, independence of Judges, the court, particularly the
Supreme Court, often being styled as the Court of the Collegium, the looking forward
syndrome affecting impartial assessment, etc., have been some of the other allegations
in the air for quite some time. These allegations certainly call for a deep introspection
as to whether the institutional trusteeship has kept up the expectations of the Framers G
of the Constitution. Though one would not like to go into a detailed analysis of the
reasons, I feel that it is not the trusteeship that failed, but the frailties of the trustees
and the collaborators which failed the system. To me, it is a curable situation yet.
1111. Since the system existing prior to the amendment will stand revived on the 99th
Amendment being struck down and grievances have been expressed about its functioning,
I am of the view that such grievances ought to be considered. It is made clear that
H
1120 SUPREME COURT REPORTS [2018] 4 S.C.R.

A “5. To consider introduction of appropriate measures, if any,
for an improved working of the “Collegium System”, list on
3-11-2015".
37. After due consideration of various suggestions, this aspect of
the matter was dealt with vide order dated 16 th December, 2015 as
B follows:
“1255. In view of the above, the Government of India may
finalise the existing Memorandum of Procedure by
supplementing it in consultation with the Chief Justice of
India. The Chief Justice of India will take a decision based
C on the unanimous view of the Collegium comprising the four
seniormost puisne Judges of the Supreme Court. They shall
take the following factors into consideration:
1256.1. Eligibility criteria: The Memorandum of Procedure
may indicate the eligibility criteria, such as the minimum age,
D for the guidance of the Collegium (both at the level of the
High Court and the Supreme Court) for the appointment of
Judges, after inviting and taking into consideration the views
of the State Government and the Government of India (as
the case may be) from time to time.

E 1256.2.Transparency in the appointment process: The
eligibility criteria and the procedure as detailed in the
Memorandum of Procedure for the appointment of Judges
ought to be made available on the website of the Court
concerned and on the website of the Department of Justice
of the Government of India. The Memorandum of Procedure
F may provide for an appropriate procedure for minuting the
discussion including recording the dissenting opinion of the
Judges in the Collegium while making provision for the
confidentiality of the minutes consistent with the requirement
of transparency in the system of appointment of Judges.
G 1256.3. Secretariat: In the interest of better management of
the system of appointment of Judges, the Memorandum of
grievances have not been expressed by the petitioners about the existence of the pre-
existing system of appointment but about its functioning in practice. It has been argued
that this Court can go into this aspect without revisiting the earlier decisions of the
larger Benches. I am of the view that such grievances ought to be gone into for which the
H matter needs to be listed for hearing.
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1121
PRADESH [ADARSH KUMAR GOEL, J.]

Procedure may provide for the establishment of a Secretariat A
for each High Court and the Supreme Court and prescribe
its functions, duties and responsibilities.
1256.4. Complaints: The Memorandum of Procedure may
provide for an appropriate mechanism and procedure for
dealing with complaints against anyone who is being B
considered for appointment as a Judge.
1256.5. Miscellaneous: The Memorandum of Procedure
may provide for any other matter considered appropriate
for ensuring transparency and accountability including
interaction with the recommendee(s) by the Collegium of the C
Supreme Court, without sacrificing the confidentiality of the
appointment process.”
38. Improvement contemplated in the above judgment does not
seem to have seen the light of the day. In Re: Sri Justice C.S. Karnan30
observations have been made as to the need to revisit the process of D
appointments and to set up mechanism for corrective measures other
than impeachment against conduct of an erring Judge.
39. We make it clear that we are in no manner deviating from the
law laid down by this Court that primacy in appointment of Constitutional
Courts is to be of the Chief Justice of India. At the same time, even E
without affecting such primacy improvement in working of Collegium is
a felt necessity as held above. Five Judge Bench of this Court directed
setting up of the Secretariat and also to incorporate other factors for
improved and effective working of the collegiums system. This apart,
corrective measures against post appointment conduct or inadequate
F
30
(2017) 7 SCC 1 – paras 77-78:
“77. This case, in our opinion, has importance extending beyond the immediate problem.
This case highlights two things:
(1) the need to revisit the process of selection and appointment of Judges to the
constitutional courts, for that matter any member of the judiciary at all levels; and
(2) the need to set up appropriate legal regime to deal with situations where the
conduct of a Judge of a constitutional court requires corrective measures—other than G
impeachment—to be taken.
78. …. What appropriate mechanism would be suitable for assessing the personality of
the candidate who is being considered for appointment to be a member of a constitutional
court is a matter which is to be identified after an appropriate debate by all concerned—
the Bar, the Bench, the State and civil society. But the need appears to be
unquestionable.”
H
1122 SUPREME COURT REPORTS [2018] 4 S.C.R.

A performance or failure to uphold righteous conduct need to be evolved.
These aspects require urgent attention of concerned authorities.
40. 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
B Judgement of this Court in Supreme Court Advocates-on-Record
Association and Ors. versus Union of India31 that there will be no
Acting Chief Justice for more than one month32, 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. The Central
C 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
D 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. Felt
needs of time must be addressed. The system cannot remain static or
unconcerned even when problems are patent. As already noted there
E appears to be dire need to strengthen the system of timely appointment
of Judges, particularly Chief Justices. Identification of candidates,
scrutiny, evaluation and post appointment performance measurements
and conduct are time consuming processes and at least some independent
full time experts are required, if timely and best appointments are to be
F ensured and requisite in-house oversight is to be a reality. A full time
31
(1993)4 SCC 441, para 478
32
Para 5 of the ‘Memorandum showing the Procedure for Appointment and Transfer
of Chief Justices and Judges of High Courts’ (MOP).
“5. Initiation of the proposal for the appointment of Chief Justice of a
High Court would be by the Chief Justice of India. The process of
G appointment must be initiated well in time to ensure the completion at least
one month prior to the date of anticipated vacancy for the Chief Justice of
the High Court. The Chief Justice of India would ensure that when a Chief
Justice is transferred from one High Court to another simultaneous
appointment of his successor in his office should be made and ordinarily
the arrangement of appointment of an acting Chief Justice should
not be made for more than one month.”
H
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1123
PRADESH [ADARSH KUMAR GOEL, J.]

body consistent with independence of judiciary appears to be immediate A
need for the system. Absence thereof contributes to denial of justice.
The Central Government must also ensure that MOP in pursuance of
order of this Court in NJAC case dated 16th December, 2015 brings
about the improvements in working of the collegiums as stipulated.
Accountability in terms of Performance Measurement and B
Righteous of Conduct at all levels of judicial hierarchy including
Constitutional Courts
41. There is also a need for mechanism to evaluate and compile
performance of the judicial system as per observations in 245th Report
of the Law Commission so that there is non-mandatory timeline for C
decision of cases and accountability consistent with the right of speedy
justice. Such mechanism may provide norms for performance
measurement for all judges in the hierarchy. The same has to be done
without affecting independence of judiciary. There is also need for an
in-house mechanism manned by experts but with safeguards consistent
with independence of judiciary for measures against erring Judges other D
than impeachment as observed in Re: Shri Justice CS Karnan (supra).
Reforms in the legal profession – remedying uncalled for strikes.
42. We may also deal with another important aspect of speedy
justice. It is well known that at some places there are frequent strikes, E
seriously obstructing access to justice. Even cases of persons languishing
in custody are delayed on that account. By every strike, irreversible
damage is suffered by the judicial system, particularly consumers of
justice. They are denied access to justice. Tax payers’ money is lost on
account of judicial and public time being lost. Nobody is accountable for
such loss and harassment. F
43. Dr. Ambedkar in his famous speech on 25th November, 1949
had warned :
“The first thing in my judgement we must do is to hold fast to
constitutional methods of achieving our social and economic
G
objectives. It means we must abandon the bloody methods
of revolution. It means that we must abandon the method of
civil disobedience, non-cooperation and satyagraha. When
there was no way left for constitutional methods for achieving
economic and social objectives, there was a great deal of
justification for unconstitutional methods. But where H
1124 SUPREME COURT REPORTS [2018] 4 S.C.R.

A constitutional methods are open, there can be no justification
for these unconstitutional methods. These methods are
nothing but the Grammar of Anarchy and the sooner they
are abandoned, the better for us.”
44. The above warning of the Constitution maker needs to be
B adhered to at least by the legal fraternity. The Bar has the tradition of
placing their professional duty of assisting the access to justice above
every other consideration. How is the situation to be tackled. Competent
authorities may take a final call.
45. In Ex-Capt. Harish Uppal versus Union of India and
33
C Anr. , this Court held that lawyers have no right to go on strike or to
give a call for boycott of courts nor can they abstain from the Courts.
Calls given by Bar Association or Bar Council for such purpose cannot
require the court to adjourn the matters. Strike or abstaining from court
is unprofessional. Even though more than 15 years have passed after
the said judgment was rendered, the judgment of this Court is repeatedly
D flouted and no remedial measures have been adopted. Regulation of
right of appearance in courts is within the jurisdiction of the courts. This
Court also asked the Law Commission to suggest appropriate changes
in the regulatory framework for the legal profession 34. The Law
Commission has submitted 266th Report. The problem continues seriously
E affecting the rule of law.
46. In Mahipal Singh Rana (supra), this court noted that the
High Courts can frame rules to lay down conditions on which Advocates
can be permitted to practise in Courts. An Advocate can be debarred
from appearing in Court even if the disciplinary jurisdiction for misconduct
F is vested with the Bar Councils35. This Court requested the Law
Commission to look into all relevant aspects relating to regulation of
legal profession36.
47. The Law Commission, accordingly, examined the relevant
aspects relating to regulation of the legal profession. The Law Commission
G in its 266th Report found that such conduct of the advocates affects
functioning of courts and particularly it contributes to pendency of cases.

33
(2003) 2 SCC 45
34
(2016)8 SCC 335 - Mahipal Singh Rana versus State of Uttar Pradesh
35
Paras 20, 30 to 35
36
Para 58
H
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1125
PRADESH [ADARSH KUMAR GOEL, J.]

It analyzed the data on loss of working days on account of call of strikes. A
The analysis is as follows:
“7.2. In the State of Uttarakhand, the information sent by
the High Court for the years 2012-2016 shows that in
Dehradun District, the Advocates were on strike for 455 days
during 2012-2016 (on an average, 91 days per year). In B
Haridwar District, 515 days (103 days a year) were wasted
on account of strike.
7.3 In the case of the State of Rajasthan, the High Court of
Judicature at Jodhpur saw 142 days of strike during 2012-
2016, while the figure stood at 30 for the Jaipur Bench. In C
Ajmer District courts, strikes remained for 118 days in the
year 2014 alone, while in Jhalawar, 146 days were lost in
2012 on account of strike.
7.4 The case of Uttar Pradesh appears to be the worst. The
figures of strike for the years 2011-2016 in the subordinate D
courts are alarmingly high. In the State of Uttar Pradesh,
the District courts have to work for 265 days in a year. The
period of strike in five years period in worst affected districts
has been as - Muzaffarnagar (791 days), Faizabad (689
days), Sultanpur (594 days), Varanasi (547 days), Chandauli
(529 days), Ambedkar Nagar (511 days), Saharanpur (506 E
days) and Jaunpur (510 days). The average number of days
of strike in eight worst affected districts comes to 115 days
a year. Thus, it is evident that the courts referred to
hereinabove could work on an average for 150 days only
in a year. F
7.5 In this regard, the situation in subordinate courts in Tamil
Nadu had by no means, been better. The High Court of Tamil
Nadu has reported that there are 220 working days in a
year for the courts in the State. During the period 2011-
2016, districts like Kancheepuram, 687 days (137.4 days G
per year); Kanyakumari, 585 days (117 days per year);
Madurai, 577 days (115.4 days per year); Cuddalore, 461
days (92.2 days per year); and Sivagangai, 408 days (81.6
days per year), were the most affected by strike called by
advocates.
H
1126 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 7.6 As per the responses received from the High Courts of
Madhya Pradesh and Odisha, the picture does not emerge
to be satisfactory.
7.7 The Commission noted that the strike by advocates or
their abstinence from the court were hardly for any justifiable
B reasons. It could not find any convincing reasons for which
the advocates resorted to strike or boycott of work in the
courts. The reasons for strike call or abstinence from work
varied from local, national to international issues, having
no relevance to the working of the courts. To mention a few,
bomb blast in Pakistan school, amendments to Sri Lanka’s
C Constitution, interstate river water disputes, attack on /
murder of advocate, earthquake in Nepal, to condole the
death of their near relatives, to show solidarity to advocates
of other State Bar Associations, moral support to movements
by social activists, heavy rains, or on some religious
D occasions such as shraadh, Agrasen Jayanti, etc. or even
for kavi sammelan.
7.8 The Commission is of the view that unless there are
compelling circumstances and the approval for a symbolic
strike of one day is obtained from the Bar Council concerned,
E the advocates shall not resort to strike or abstention from
the court work.”
48. Thereafter, the Law Commission referred to observations in
the judgment of this Court in Ex-Capt. Harish Uppal case (supra) that
there should be no strikes by the Bar except in rarest of rare situations
F which should also not exceed one day. The Bar Councils were called
upon to take appropriate action in the matter. The Law Commission
noted that the strikes were continuing and causing great obstruction to
the access to justice. It was observed :
“8.3 In spite of all these, the strikes have continued
G unabated. The dispensation of justice must not stop for any
reason. The strike by lawyers have lowered the image of the
courts in the eyes of the general public. The Supreme Court
has held that right to speedy justice is included in article 21
of the Constitution. In Hussainara Khatoon v. Home Secy.,
State of Bihar; and in some other cases, it was held that the
H litigant has a right to speedy justice. The lawyers’ strike,
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1127
PRADESH [ADARSH KUMAR GOEL, J.]

however, result in denial of these rights to the citizens in the A
State.
8.4 Recently, the Supreme Court while disposing off the
Criminal Appeal of Hussain & Anr. v. Union of India (2017)
5 SCC 702 deprecated the practice of boycotting the Court
observing that: B
“One other aspect pointed out is the obstruction of Court
proceedings by uncalled for strikes/abstaining of work by
lawyers or frequent suspension of court work after
condolence references. In view of judgment of this Court
in Ex. Captain Harish Uppal versus Union of India, such C
suspension of work or strikes are clearly illegal and it is
high time that the legal fraternity realizes its duty to the
society which is the foremost. Condolence references can
be once in a while periodically say once in two/three months
and not frequently. Hardship faced by witnesses if their
evidence is not recorded on the day they are summoned or D
impact of delay on under trials in custody on account of
such avoidable interruptions of court proceedings is a
matter of concern for any responsible body of
professionals and they must take appropriate steps. In any
case, this needs attention of all concerned authorities – E
the Central Government/State Governments/Bar Councils/
Bar Associations as well as the High Courts and ways and
means ought to be found out to tackle this menace.
Consistent with the above judgment, the High Courts must
monitor this aspect strictly and take stringent measures as
may be required in the interests of administration of justice.” F

8.5 In Ramon Services Pvt. Ltd. v. Subhash Kapoor (2001)1
SCC 118, the apex Court observed that if any advocate claims
that his right to strike must be without any loss to him, but
the loss must only be borne by his innocent client, such a
claim is repugnant to any principle of fair play and canons G
of ethics. Therefore, when he opts to strike or boycott the
Court he must as well be prepared to bear at least the
pecuniary loss suffered by the litigant client who entrusted
his brief to that advocate with all confidence that his cause
would be safe in the hands of that advocate.” H
1128 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 49. Examining other aspects of the regulation of legal profession,
the Law Commission recommended review of regulatory mechanism of
the Advocates Act as follows:
“17.1 There is a dire necessity of reviewing the regulatory
mechanism of the Advocates Act, not only in matters of
B discipline and misconduct of the advocates, but in other areas
as well, keeping in view the wide expanse of the legal
profession being involved in almost all areas of life. The
very constitution of the Bar Councils and their functions
also require the introduction of a few provisions in order to
consolidate the function of the bar councils in its internal
C matters as well.”
50. Since the strikes are in violation of law laid down by this Court,
the same amount to contempt and at least the office bearers of the
associations who give call for the strikes cannot disown their liability for
contempt. Every resolution to go on strike and abstain from work is per
D se contempt. Even if proceedings are not initiated individually against
such contemnors by the court concerned or by the Bar Council concerned
for the misconduct, it is necessary to provide for some mechanism to
enforce the law laid down by this Court, pending a legislation to remedy
the situation.
E 51. Accordingly, we consider it necessary, with a view to enforce
fundamental right of speedy access to justice under Articles 14 and 21
and law laid by this Court, to direct the Ministry of Law and Justice to
present at least a quarterly report on strikes/abstaining from work, loss
caused and action proposed. The matter can thereafter be considered in
F its contempt or inherent jurisdiction of this Court. The Court may, having
regard to the fact situation, hold that the office bearers of the Bar
Association/Bar Council who passed the resolution for strike or abstaining
from work, are liable to be restrained from appearing before any court
for a specified period or until such time as they purge themselves of
contempt to the satisfaction of the Chief Justice of the concerned High
G 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 filed by them. This may
be in addition to any other action that may be taken for the said illegal
H acts of obstructing access to justice. The matter may also be considered
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA 1129
PRADESH [ADARSH KUMAR GOEL, J.]

by this Court on receipt of a report from the High Courts in this regard. A
This does not debar report/petition from any other source even before
the end of a quarter, if situation so warrants.
52. We may now sum up our conclusions :
(i) In the light of 124th and 272nd Reports of the Law Commission
of India, judgment of this Court in Gujarat Urja (supra), the B
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 Courts so as to realistically achieve the C
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 India37, the Minutes of the Arrears Committee of this
Court dated 8th April, 2017, and the experience on the subject, D
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. E

(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 F
performance post appointment. The Government may also
consider what changes are required in the process of 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. G
(iv) 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
37
(1992) 1 SCC 119 H
1130 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B
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
C High Court so permits on an appropriate undertaking being filed
by them. This may be in addition to any other action that may be
taken for the said illegal acts of obstructing access to justice.
The matter may also be considered by this Court on receipt of a
report from the High Courts in this regard. This does not debar
report/petition from any other source even before the end of a
D
quarter, if situation so warrants.
53. Accordingly, we dispose of this appeal in above terms. We
direct the Union of India to file an affidavit in the light of the above
observations within three months. First report in terms of para 52(iv)
may be filed by June 30, 2018. The matter may be listed for consideration
E of the above affidavit on Wednesday, the 4th July, 2018 before the
appropriate Bench.

Kalpana K. Tripathy Appeal disposed of.

F

G

H