IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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1 1 pil188.doc ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO. 188 OF 2015 WITH CIVIL APPLICATION NO. 75 OF 2016 CIVIL APPLLICATION NO. 42 OF 2018 Vihar Durve Vs The State of Maharashtra and others Mr.Jalan Sandeep for the petitioners Mr.A.B.Vagyani, G.P with Mr.P.G.Sawant, AGP for the respondent No.1 in CAI/42/2018 Mr.Sanjay Udeshi with Mr.Netaji Gawade i/b M/s.Sanjay Udeshi & Company for the respondent No.2 CORAM : A. S. OKA AND M. S. SONAK, JJ. DATE : 27 th SEPTEMBER 2018, 4 th OCTOBER 2018 and 11 th OCTOBER ORAL JUDGMENT: (PER A.S.OKA, J.) OVERVIEW The submissions of the learned Counsel appearing for the parties were heard on the earlier date. The petitioner who is a Chartered Accountant by profession has raised several issues concerning the infrastructure of the judiciary in the State. 2. Before we go to the details, we must refer to the prayers. The first prayer is for ::: Uploaded on - 03/01/2019 ::: Downloaded on - 04/01/ :19:46 :::

2 2 pil188.doc seeking a direction to establish additional 867 Courts in the State of Maharashtra. There is a prayer for setting up 20 fast track Courts for exclusively trying the cases of senior citizens, differently abled persons and marginalised sections of the society. In the petition, there are averments regarding necessity of establishing adequate number of Special Courts in the State for exclusively trying the cases under the Prevention of Corruption Act, Therefore, there is a prayer seeking a direction to establish 48 Special Courts in the State. The petitioner has contended that there is a need to have more family Courts in the State. Therefore, there is a prayer made that there should be additional 17 posts of family Court judges in the city of Mumbai, 5 in Pune and 5 at Nagpur. There is a prayer for establishment of Courts of District Judges and Senior Civil Judges at the specific places in various Taluka places mentioned in prayer clauses (e) to (i). There is also a prayer made for establishing a District Court for the newly created Nandurbar Revenue District. Another important prayer in the petition is regarding furnishing a road map for the establishment of Courts which are subject matter of specific prayers in the petition. Pending the petition, another issue was raised in this PIL concerning pension payable to the judicial officers in the State. It is pointed out that the Defined Contributory Pension Scheme (DCPS) which was introduced by a Government Resolution was applied to the judicial officers who were appointed on or after

3 3 pil188.doc 1 st November, It was pointed out that the new pension scheme (DCPS) as compared to the old pension scheme which was applicable to those who were in judicial service as on 31 st October 2005 is not at all beneficial to the Judicial Officers and in fact as a result of applying the new pension scheme to the Judicial Officers appointed after 31 st October 2005, deduction of 10% of the salary was being made as a contribution to DCPS. Accordingly, prayers (m) and (n) were incorporated for challenging the applicability of DCPS. 3. We may note here that as regards the controversy regarding the applicability of the new pension scheme (DCPS) to the judicial officers, the issue is finally decided by this Court by the Judgment and Order dated 11 th August, 2017 by holding that the judicial Officers appointed after 31 st October 2005 will be governed by the old Pension scheme. Being aggrieved by the said judgment, the State of Maharashtra preferred Special Leave Petition (Civil) No of By an order dated 1 st December, 2017 passed in the said SLP, this PIL was transferred to the Apex Court. However, by further order dated 27 th March, 2018 the Apex Court disposed of the said SLP without disturbing the order dated 11 th August, 2017 and the present petition was again ordered to be re transferred to this Court. While re transferring the petition, the Apex Court added a rider that this Court should not deal with the issues which have been referred to the

4 4 pil188.doc commission headed by Shri Justice Venkatarama Reddy for resolution. 4. After the present PIL was re transferred to this Court, consequential orders have been passed by this Court for the implementation of the directions issued in the Judgment and order dated 11 th August, Therefore, now, while finally deciding the petition, we are not dealing the issue regarding pensionary benefits to the judicial officers appointed on or after 1 st November, 2005 inasmuch as the decision on the said issue has become final by virtue of the disposal of SLP filed by the State of Maharashtra against the Judgment and order dated 2 nd August, The discussion made in this Judgment will show that a very important issue was canvassed for consideration of this Court. The issue is which Authority is empowered in law to decide the number of Judicial Officers of various categories required in the State and the number of additional Courts of various categories required in the State. The issue is whether the views of the High Court Administration on these aspects will have the primacy and the State Government will be bound to follow the views of this Court. This issue arose in view of the submission made by the learned

5 5 pil188.doc Government Pleader on behalf of the State Government that on these aspects, the views of the Government will prevail. In fact, we may note here that we had also given an opportunity to the learned Government Pleader by granting him time to take instructions on the question whether the State Government was willing to re consider its stand on the subject. The learned Government Pleader on instructions stated that the State Government has unable to change the stand. AFFIDAVITS ON RECORD 7. Before we advert to the submissions made across the bar, a brief reference to the affidavits filed on record will be necessary. There is an affidavit dated 19 th July 2016 filed by Neeraj Pradip Dhote, Joint Secretary, Law and Judiciary Department which basically deals with pensionary benefits to the Judicial Officers which issue has been already concluded. Prior to that, an affidavit was filed on 16 th June 2016 by the same Joint Secretary dealing with the issue of pension. 8. There is an affidavit filed on 11 th January 2017 by Shri Atul Madhukar Kurhekar, the learned Registrar (Legal and Research) of this Court which essentially deals with the prayers regarding establishment of the new Courts/creation of posts. He has stated that a proposal for creation of 867 additional posts of Judicial Officers was forwarded initially to the State Government on 3 rd September

6 6 pil188.doc 2012 which is followed by several letters issued thereafter from time to time and the proposal is still pending with the State Government. As regards prayer (b) seeking a direction for establishing 20 Fast Track Courts exclusively for trying the cases of differently abled persons, Senior Citizens and Marginalised Sections of Society, Shri Kurhekar has stated that the Committee appointed by this Court approved the suggestion of establishing 20 Special Fast Track Courts and accordingly, a proposal has been sent to the State Government on 24 th April Shri Kurhekar while responding to the prayer for establishing 48 Special Courts in 27 judicial District to try the cases under the Prevention of Corruption Act,1988 has stated that by a notification dated 27 th August 2014, the State Government has conferred the power of the Special Courts under the said Act of 1988 on all the Session Judges, Additional Session Judges and Ad hoc Additional Sessions Judges. While dealing with the prayer for establishing additional Family Courts in Mumbai, Pune and Nagpur, it is pointed out that a proposal has been submitted way back on 14 th November 2014 for creating additional posts of Family Court Judges and for making necessary budgetary provision. About the prayers (e), (f) and (g) dealing with the establishment of the Courts at the places stated therein, Shri Kurhekar has referred to the proposals forwarded to the State Government and the correspondence made in that behalf. The same is the case with the prayer clauses (h), (i) and (j).

7 7 pil188.doc 9. There is a further affidavit dated 3 rd April 2017 filed by Shri Neeraj Pradip Dhote, Joint Secretary, Law and Judiciary Department. As regards the prayer (a) for sanction/creation of additional 867 posts, the reply is based on the Government Resolution dated 6 th January We must, however, note here that the said GR deals with a completely different aspect of creating 10% additional posts of Judicial Officers in terms of the decision of the Apex Court in the case of Brij Mohan Lal vs. Union of India 1. As regards the prayer clause (b) regarding establishing 20 separate Special Courts, it is merely mentioned that the said subject was discussed in the meeting held on 1 st April 2017 between the Hon'ble the Chief Justice and the Hon'ble Chief Minister. As regards creating additional posts of Family Court Judges, Shri Dhote has taken a very peculiar stand. He has referred to the proposal submitted by this Court and stated that the information sought by the State Government has been provided by the High Court. He has stated that while determining the Judge strength pursuant to the directions issued by the Apex Court in the case of Imtiyaz Ahmad vs. State of Uttar Pradesh 2, the High Court may add the requisite number of Family Court Judges. About creating posts of Judicial Officers at Shrigonda, he has merely stated that the matter is placed before the High Power Committee. The same is the case made out by Shri Dhote as regards the 1 (2012) 6 SCC (20127) 3 SCC 658

8 8 pil188.doc prayer regarding establishment of the Court at Umred. As regards the establishment of the Court at Rajur, District Ahmednagar, he claims that information regarding the recurring and non recurring expenditure of the said Court is necessary. As regards the prayer regarding establishment of the Court at Mehkar, District Buldhana, it is contended that certain information required by the Finance Department has been called for. The same is the case made out as regards the establishment of the Court at Malkapur, District Buldana. 10. Though the subsequent factual narration will show that in some cases, the State Government has granted approval, we have referred to the response of the State Government to each and every proposal just to indicate the approach of the State Government while dealing with the proposals for establishment of new Courts. The stand taken in the affidavit shows that even after a new Revenue District at Nandurbar was created by the State Government, when it came to creation of new Judicial District by establishing a separate District and Sessions Court, all sorts of queries were made by the Finance Department for deciding the proposal for establishing the District and Sessions Court for the newly created Nandurbar District. 11. The Affidavit dated 5 th October 2017 filed by Shri Kurhekar throws some light on some progress

9 9 pil188.doc made in the proposals pending with the State Government. As regards establishing 20 Special Courts, it is stated that the State Government took a decision to establish the Special Courts where there were one thousand or more cases pending. It is stated that 11 Districts have been accordingly identified and information has been furnished to the State Government. As regards creating extra Family Courts at 3 places, Shri Kurhekar has referred to further correspondence made by the High Court Administration in response to several queries raised by the State Government from time to time. The last of such letters is dated 19 th June About the issue of establishing a Court at Srigonda, again he has referred to several letters addressed by the High Court Administration. As regards the Court at Umred, it is stated that by GR dated 21 st June 2017, the post of Civil Judge (S.D) at Umred, District Nagpur has been created but budgetary provision has not been yet made. About the proposal for the Court at Rajur, Shri Kurhekar pointed that several letters were addressed by the High Court Administration. The Affidavit refers to establishment of the new Courts at Kale Khriwade in District Kolhapur and Hinganghat in District Wardha. It is stated in the affidavit that a decision has been taken to establish 14 Family Courts by utilising grant of 14th Finance Commission out of which Family Court at Latur has started functioning. A statement is made that 18 additional Courts of District Judges and Civil Judge (S.D.) have been decided to be set up by

10 10 pil188.doc utilising grant of 14th Finance Commission. One important factual aspect pointed out by Shri Kurhekar is that by GR dated 14 th July posts of Civil Judge (J.D.) have been upgraded to the posts of Civil Judge (S.D.). 12. It will be also necessary to make a reference to a note submitted regarding further compliance. It is stated that the High Court Administration by the letters dated 21 st August 2017, 8 th February 2018 and 13 th March 2018 pointed out to the State Government that 179 new posts created of the Judges and 751 posts of supporting staff has nothing to do with the proposal for creating for 867 Courts and the proposal for creation of 867 posts is still pending. The chart produced indicates that the Court of Civil Judge (S.D.) Umred was ultimately established and has started functioning from 2 nd December A chart has been tendered across the bar on 5 th September 2018 which is signed by Shri R.M.Lokhande, Section Officer of A Civil Branch of this Court. It records that the sanctioned strength of Judges in Maharashtra Judiciary in the year 2012 was 1780 and the working strength was It is pointed out that on 5 th September 2018, the sanctioned strength is 2008 and the working strength is 1871.

11 11 pil188.doc JUDGE STRENGTH 14. Many factual submissions have been made as regards the pendency of proposals for increasing the Judge strength. As regards the Judge strength, in fact a very little debate is required. We may note here that the Apex Court by the Judgment and Order dated 21 st March 2002 in the case of All India Judges Association (3) Vs. Union of India 3 approved 120 th report of the Law Commission on manpower planning in judiciary which suggested a formula for fixation of Judge strength by adopting demographic approach. The Law Commission noted that as of the year 1981, though United States had one third of the population of India, it had a judge to population ratio of 107 judges per million whereas the said ratio was 10.5 Judges per million population in India which was grossly inadequate. Considering the said report, in the aforesaid decision, a specific direction was issued that the existing Judge strength should be increased to 50 Judges per million. This was to be implemented by filling up of the posts in a phased manner to be determined and directed by the Union Ministry of Law. However, it was specifically mentioned that the Judge strength should be increased to 50 Judges for 10 lakh people within a period of five years. If the recommendations of Law Commission were implemented, by the year 2000, India would have achieved target of 107 Judges per million population. Thus, there would have been 1,36,794 Judges as on 31 st December 3 (2002) 4 SCC 247

12 12 pil188.doc However, as on 31 st December 2015, sanctioned strength was only 21,607. The decision of the Apex Court in the case of Imtiyaz Ahmad (supra) records that earlier approach for determining the Judge strength was demographic approach. The Judgment refers to the Constitution of the National Court Management Systems Committee (for short NCMSC ). It is noted that NCMSC worked on scientific method of calculation of Judge strength and arrived at a formula which is discussed in detail in the said decision. The said formula was evolved on the basis of interim report submitted by NCMSC. What is material is the direction given in paragraph The directions contained in paragraphs 43.1 to 43.8 of the decision of the Apex Court read thus: 43.1 Until NCMSC formulates a scientific method for determining the basis for computing the required Judge strength of the District judiciary, the Judge strength shall be computed for each State, in accordance with the interim approach indicated in the note submitted by the Chairperson,NCMSC; 43.2 NCMSC is requested to endeavour the submission of its final report by ; 43.3A copy of the interim report submitted by the Chairperson, NCMSC shall be forwarded by the Union Ministry of Law and Justice to the Chief Justices of all the High Courts and Chief Secretaries of all States within one month so as to enable them to take follow up action to determine the required Judge strength of the District judiciary based on the NCMSC interim report, subject to what has been stated in this judgment;

13 13 pil188.doc 43.4 The State Governments shall take up with the High Court concerned, the task of implementing the interim report of the Chairperson, NCMSC (subject to what has been observed above) and take necessary decisions within a period of three months from today for enhancing the required Judge strength of each State judiciary accordingly; 43.5 The State Governments shall cooperate in all respects with the High Courts in terms of the resolutions passed in the joint conference of Chief Justices and Chief Ministers in April 2016 with a view to ensuring expeditious disbursal of funds to the State judiciaries in terms of the devolution made under the auspices of the Fourteenth Finance Commission; 43.6 The High Courts shall take up the issue of creating additional infrastructure required for meeting the existing sanctioned strength of their State Judiciaries and the enhanced strength in terms of the interim recommendation of NCMSC; 43.7 The final report submitted by NCMSC may be placed for consideration before the Conference of Chief Justices. The directions in para 43.1, above shall then be subject to the ultimate decision that is taken on receipt of the final report; and 43.8A Copy of this order shall be made available to the Registrars General of each High Court and to all Chief Secretaries of the States for appropriate action. (emphasis added) 15. We may note that though the case of Imtiyaz Ahmad (supra) was finally disposed of by the Apex Court, the aforesaid directions were not modified. Thus, today there is a direction of the Apex Court

14 14 pil188.doc that until NCMSC formulates scientific method for determining the Judge strength, for each State, the Judge strength shall be calculated as per the interim approach incorporated in the note submitted by NCMSC. In paragraph 43.3, the Apex Court directed that interim report of the NCMSC shall be forwarded by the Union Ministry of Law and Justice to the Chief Justices of all the High Courts and the Chief Secretaries of all States so as to enable them to determine the required Judge strength of the District Judiciary. Paragraph 43.4 clearly gives a direction to the State Governments to implement the interim report of NCMSC. Paragraph 43.6 also proceeds on the footing that in each State, Judge strength will be enhanced on the basis of the recommendations of NCMSC. So long as the directions issued in the aforesaid decision by the Apex Court in the case of Imtiyaz Ahmad (supra) are not modified, all the States including the State of Maharashtra continue to bound by the same. We are informed across the Bar that this Court on the administrative side has accordingly worked out the Judge strength and submitted a proposal for sanction to the State Government. The State Government has no choice but to implement the directions of the Apex Court. THE ISSUE OF PRIMACY 16. Now coming to the issue of primacy, when it comes to deciding the number of Judicial Officers or

15 15 pil188.doc number of judicial posts which should made available, the learned Government Pleader invited our attention to various provisions of the Constitution including Articles 233 and 235. His main contention was that the power of establishing Courts will have to be exercised in consultation with the High Court. However, the creation of posts in judicial service as well as the creation of cadres can be resorted to either by the Hon'ble Governor in exercise of his Rule making power under Article 309 or by an appropriate legislation. In this behalf, he placed reliance on the decision of the Apex Court in the case of State of Bihar and another vs. Bal Mukund Sah 4. He submitted that if the High Court Administration is of the opinion that a particular number of posts ought to be created in judicial service, the same will be subject to Article 309 of the Constitution in which case only the Hon'ble Governor or the legislature of the State will have an authority to do so after taking into consideration various factors, budget etc. His contention is that the question of exercising the control under Article 235 arises only after the posts are created by making rules or a legislation under Article 309. He submitted that it is true that whenever the High Court Administration comes to the conclusion that a particular number of Judicial posts are required to be created, it is done after considerable thought. But ultimately it is for the State to decide on the requirement of creation of 4 (2000) 4 SCC 640

16 16 pil188.doc judicial posts in judicial service after taking into consideration various factors such as expenditure involved, availability of funds etc. 17. Before we deal with the submissions based on various constitutional provisions such as Articles 235 and 309, we must make a reference to the decision of the Apex Court in the case of All India Judges Association (3) (supra). In the said decision after considering 120 th report of the Law Commission, a direction was issued by the Apex Court to increase number of judicial posts in the entire country so as to achieve Judge to population ratio of 50 Judges for one million population. This was to be done within a period of five years from the date of decision of the Apex Court which is of 21 st March Going by the present position of the Judge to population ratio, it is between 16 to 18 per million. Thus, the target laid down by the Apex Court which was to be achieved by March 2007 is not yet achieved. It is not even achieved to the extent of 50%. As pointed out in the earlier paragraphs, different methodology was adopted by the Apex Court in the case of Imtiyaz Ahmad (supra) for the purpose of calculating the Judge strength. That was based on interim recommendations of the NCMSC. As observed earlier, there is already a direction issued by the Apex Court in the said decision to make computation of the Judge strength as per the formula laid down in the interim report of NCMSC. This specific direction under 43.1 is already

17 17 pil188.doc quoted. In the face of these two judicial pronouncements, it is not open for the State to argue that it has a primacy or prerogative to determine how many Judicial Officers should be appointed in the State. Irrespective of the issue of primacy, what binds the State is the aforesaid decision of the Apex Court in the case of Imtiaz Ahmad (supra). 18. On this aspect, it will be necessary to make a reference to the decision dated 5 th May 2017 of this Court in the case of Mumbai Grahak Panchayat Vs. State of Maharashtra and others in PIL No.156 of 2011 and other connected petitions. The said decision has been accepted by the State Government in the sense, there is no challenge to the same. As far as Judge strength is concerned, the Division Bench has referred to the directions issued by the Apex Court in the case Imtiyaz Ahmad (supra). In fact directions have been issued to the State Government to comply with the directions issued by the Apex Court. Clauses (a) to (g) of sub paragraph (A) of paragraph 191 reads thus: 191. Hence, we pass the following order: ORDER A] We hold that: (a) It is the constitutional obligation of the State Government to provide lands and/or adequate premises for establishing adequate number of Courts; (b) It is an obligation of the State Government to appoint sufficient number of

18 18 pil188.doc Judicial officers consistent with pendency and filing in the concerned Courts and Tribunals. The cadre strength should be such that there will be no pendency of old cases; (c) It is the obligation of the State Government to provide all necessary infrastructure to the newly established as well as the existing Courts and Tribunals for the benefit of the Judicial Officers, litigants, members of the staff as well as members of the Bar; (d) The infrastructure has to be provided in such a manner that the Courts are able to function efficiently; (e) The infrastructure has to be consistent with the concept of dignity of the Court; (f) Speedy disposal of cases in consonance with the mandate of Article 39A of the Constitution of India cannot be achieved unless adequate number of Courts and Tribunals are established and adequate and proper infrastructure is provided to all the Court premises; (g) Financial constraints is no ground to deny permission for establishing new Courts and denying essential infrastructure to all the Courts, whether existing or new. These principles will apply to all Civil and Criminal Courts in the State, Cooperative Courts and Maharashtra State Cooperative Appellate Court, State Commission and District Forum under the Consumer Protection Act, 1986, the Motor Accidents Claims Tribunals under the Motor Vehicles Act,1988 as well as Labour and Industrial Court; (emphasis added) 19. Thus, it is held that it is the constitutional obligation of the State Government to appoint sufficient number of Judicial Officers consistent with the pendency and filing in the concerned Courts and Tribunals. It is also held

19 19 pil188.doc that the cadre strength should be such that there is no pendency of old cases. In clause (f), it is categorically laid down that speedy disposal of the cases in consonance with Article 39 A of the Constitution cannot be achieved unless adequate number of Courts and Tribunals are established and adequate and proper infrastructure is provided to all the Court premises. What is important is that it is held in the said decision that financial constraints is no ground for denying establishment of new Courts and essential infrastructure to all the Courts whether existing or new. The obligation of the State to provide adequate infrastructure to the judiciary will naturally include providing adequate number of Judges. One of the submissions made by the learned Government Pleader was that that when the High Court Administration comes to the conclusion that certain number of additional posts of Judges are required to be created, it is ultimately for the State to decide whether it is possible to create additional posts considering the availability of funds and financial constraints. This submission hardly merits consideration in the light of the aforesaid decision of this Court. The non availability of funds is really no ground to refuse the creation of new posts of Judges. At highest, the appointments can be made in a phase wise manner. 20. In fact, what is held in the aforesaid decision in the case of Mumbai Grahak Panchayat

20 20 pil188.doc (supra) that financial constraints is no ground to deny establishment of new Courts is based on the law laid down by the Apex Court in the case of Brij Mohan Lal (supra). For the sake of clarity, we reproduce paragraphs 136 and 137 of the aforesaid decision in the case of Brij Mohan Lal (supra) However, as far as functioning of the courts i.e. dispensation of justice by the courts is concerned, the Government has no control whatsoever over the courts. Further, in relation to matters of appointments to the judicial services of the States and even to the higher judiciary in the country, the Government has some say, however, the finances of the judiciary are entirely under the control of the State. It is obvious that these controls should be minimised to maintain the independence of the judiciary. The courts should be able to function free of undesirable administrative and financial restrictions in order to achieve the constitutional goal of providing social, economic and political justice and equality before law to its citizens Article 21 of the Constitution of India takes in its sweep the right to expeditious and fair trial. Even Article 39 A of the Constitution recognises the right of citizens to equal justice and free legal aid. To put it simply, it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duty of the Government, more particularly, when such

21 21 pil188.doc rights are accepted as basic and fundamental to the human rights of citizens. (emphasis added) 21. Even in the case of Hussainara Khatoon and others vs. Home Secretary, State of Bihar 5, the Apex Court has reiterated the same legal position by supplying additional reasons. decision in the case of Hussainara others (supra) reads thus: Paragraph 10 of the Khatoon and 10 We find from the counter affidavit filed on behalf of the respondents that no reasons have been given by the State Government as to why there has been such enormous delay in bringing the under trial prisoners to trial. Speedy trial is, as held by us in our earlier judgment dated February 26, 1979, an essential ingredient of `reasonable, fair and just' procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem v. Malcolm : The law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty. It is also interesting to notice what Justice, then Judge, Blackmum said in Jackson v. Bishop: Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considerations. 5 (1980) 1 SCC 98

22 22 pil188.doc So also in Holt V. Saver, affirmed in 442 F Supp 362, the Court dealing with the obligation of the State to maintain a Penitentiary System which did not violate the Eighth Amendment aptly and eloquently said: Let there be no mistake in the matter; the obligation of the respondents to eliminate existing unconstitutionalities does not depend upon what the legislature may do, or upon what the Governor may do, or, indeed upon what respondents may actually be able to accomplish. If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States. The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people, as sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial. We find that in fact courts in the United States have adopted this dynamic and constructive role so far as the prison reform is concerned by utilising the activist magnitude of the Eighth Amendment. The courts have ordered

23 23 pil188.doc substantial improvements to be made in a variety of archaic prisons and jails through decisions such as Holt v. Sarver, Jones V. Wittenberg, Newman v. Alabama and Gates V. Collier. The Court in the last mentioned case asserted that it has the duty of fashioning a decree that will require defendants to eliminate the conditions and practices at Parchman herein above found to be violative of the United State's constitution and in discharge of this duty gave various directions for improvement of the conditions of those confined in the State Penitentiary. The powers of this Court in protection of the constitutional rights are of the widest amplitude and we do no see why this Court should not adopt a similar activist approach and issue to the State directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial. But in order to enable the Court to discharge this constitutional obligation, it is necessary that the Court should have the requisite information bearing on the problem. We, therefore, direct the State of Bihar to furnish to us within three weeks from today particulars as to the location of the courts of Magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on December 31, 1978 giving year wise break up of such pending cases and also explaining why it has not been possible to dispose of those cases as have been pending for more than six months. We would appreciate if the High Court of Patna also furnishes the above particulars to us within three weeks from today since the High Court on its administrative side must be having records from which these particulars can be easily gathered. We also direct the State of Bihar to furnish to us within three weeks from today particulars as to the number of cases where first information reports have been

24 24 pil188.doc lodged and the cases are pending investigation by the police in each subdivision of the State as on December 31, 1978 and where such cases have been pending investigation for more than six months, the State of Bihar will furnish broadly the reasons why there has been such delay in the investigative process. The writ petition will now come up for hearing and final disposal on April 4, We have already issued notice to the Supreme Court Bar Association to appear and make its submissions on the issues arising in the writ petition since they are of great importance. We hope and trust that the Supreme Court Bar Association will respond to the notice and appear to assist the Court at the hearing of the writ petition. (emphasis added) 22. The Apex Court in the same decision reiterated that the right to have a speedy trial is an essential ingredient of the rights guaranteed by Article 21 of the Constitution and therefore, it is the constitutional obligation of the State to device such a procedure which would ensure speedy trial of the cases. It is in this context, the Apex Court observed that it is the Constitutional obligation of the State to take steps such as setting up new Courts, provide staff, infrastructure etc to the Court. 23. Coming back to the decision in the case of Mumbai Grahak Panchayat (supra), it is held that it is the obligation of the State to sanction requisite number of posts of Judges as directed in the

25 25 pil188.doc decision of the Apex Court in the case of Imtiyaz Ahmad (supra). By relying upon findings in paragraph 191 of the said decision, there are consequential directions issued in the operative part of the Judgment for giving effect to the directions in the case of Imtiyaz Ahmad (supra). The State is bound by the said directions. Considering the aforesaid legal position, the argument canvassed by the learned Government Pleader is of very little significance. Nevertheless, we are dealing with the said argument. 24. Article 309 of the Constitution of India reads thus: 309. Recruitment and conditions of service of persons serving the Union or State Subject to the provisions of this Constitution, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.

26 26 pil188.doc 25. Other two material Articles for the purposes of deciding the controversy involved are the Articles 233 and 235 which read thus: 233 Appointment of District judges (1) Appointments of persons to be, and the posting and promotion of, District judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. 233 A. Validation of appointments of, and judgments, etc., delivered by, certain District judges. Notwithstanding any judgment, decree or order of any Court, (a) (I) no appointment of any person already in the judicial service of a State or of any person who has been for not less than seven years an advocate or a pleader, to be a District judge in that State, and (ii) no posting, promotion or transfer of any such person as a District judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act,1966, otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions; (b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceeding done or taken, before the commencement of the Constitution (Twentieth Amendment) Act,1966 by, or before,

27 27 pil188.doc any person appointed, posted, promoted or transferred as a District judge in any State otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions Control over subordinate Courts. The control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. 26. The main thrust of the argument of the State is on the basis of the Article 309. While we deal with this argument, we must state that the same will be tested on the basis of the well settled proposition that the independence of judiciary and separation of powers forms a part of the basic structure of the Constitution. Argument canvassed based on Article 309 is virtually answered by the Apex Court in the case of All India Judges' Association vs. Union of India 6. Paragraphs 9 and 6 (1993) 4 SCC 288

28 28 pil188.doc 10 of the said decision in the Review Petition read thus: 9 So much for the contention of the review petitioners that the directions given by this Court would lead to the demand from the members of the other services for similar service conditions. It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the Judges and those of the members of the other services. It is true that under Article 309 of the Constitution, the recruitment and conditions of service of the members of the subordinate judiciary are to be regulated by the Acts of the appropriate legislature and pending such legislation, the President and the Governor or their nominees, as the case may be, are empowered to make rules regulating their recruitment and the conditions of service. It is also true that after the Council of States makes the necessary declaration under Article 312, it is the Parliament which is empowered to create an All India Judicial Service which will include posts not inferior to the post of District Judge as defined under Article 236. However, this does not mean that while determining the service conditions of the members of the judiciary, a distinction should not be made between them and the members of the other services or that the service conditions of the members of all the services should be the same. As it is, even among the other services, a distinction is drawn in the matter of their service conditions. This Court has in the judgment under review, pointed out that the linkage between the service conditions of the judiciary and that of the administrative executive was an historical accident. The erstwhile rulers constituted, only one service, viz., the Indian Civil Service for recruiting candidates for the judicial as

29 29 pil188.doc well as the administrative service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial side. Initially, there was also no clear demarcation between the judicial and executive services and the same officers used to perform judicial and executive functions. Since the then Government had failed to make the distinction between the two services right from the stage of the recruitment, its logical consequences in terms of the service conditions could not be avoided. With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on a par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter. 10 This leaves us with the contention of the review petitioners that by the directions in question, this Court has encroached upon the powers of the executive and the legislature under Article 309 to prescribe the service conditions for the

30 30 pil188.doc members of the Judicial Service. In view of the separation of the powers under the Constitution, and the need to maintain the independence of the judiciary to protect and promote democracy and the rule of law, it would have been ideal if the most dominant power of the executive and the legislature over the judiciary, viz., that of determining its service conditions had been subjected to some desirable checks and balances. This is so even if ultimately, the service conditions of the judiciary have to be incorporated in and declared by the legislative enactments. But the mere fact that Article 309 gives power to the executive and the legislature to prescribe the service conditions of the judiciary, does not mean that the judiciary should have no say in the matter. It would be against the spirit of the Constitution to deny any role to the judiciary in that that behalf for theoretically it would not be impossible for the executive or the legislature to turn and twist the tail of the judiciary by using the said power. Such a consequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the judiciary. (emphasis added) 27. Therefore, while interpreting Article 309, when it comes to making of the Rules regarding service conditions of Judicial Officers, the concept of independence of judiciary which forms a part of the basic structure of the Constitution will have to be borne in mind. In the same decision, in paragraph 22, the Apex Court observed thus: 22 To the above observations, we may add that the separation of the judiciary from the executive, as ordained by Article 50 of

31 31 pil188.doc the Constitution, also requires that even the judicial appointments at the lowest rung are made in consultation with the High Court. If the judicial stream is polluted at its very inception, the independence of judiciary will remain in jeopardy, for ever. 28. If the argument that it is for the State to ultimately decide how many judicial posts are required to be created is accepted, it will jeopardize the independence of the judiciary. 29. A Division Bench of this Court in the case of Purshottam s/o Manohar Kamone vs. State of Maharashtra 7 dealt with the issue of establishment of Motor Accident Claims Tribunals. In paragraph 6 of the said decision, the Division Bench of this Court held thus: 6. It is no longer debatable and rather it is well settled that the speedy justice is an ingredient of Article 21 of the Constitution of India and, therefore, each litigant has a fundamental right of a speedy justice. That being so, it is the corresponding obligation of the State to constitute sufficient number of Courts, Tribunals and Forums so that a litigant, who has knocked the door of the Court or Tribunal, is able to get justice speedly. Taking into consideration the huge pendency of motor accident claim cases at Nagpur, expected future filing and slow disposal of such cases, it is necessary for the State Government to provide sufficient Motor Accident Claims Tribunals at Nagpur. This is essential to ensure the speedy disposal 7 (2001) All M.R.786

32 32 pil188.doc of cases and in consonance with Article 39 A of the Constitution of India, which provides that the State shall secure that the operation of the legal system promotes justice. As observed by the Apex Court in S.C. Advocates on Record v. Union of India, (1993) 4 SCC 441 : AIR 1994 SC 268, with reference to Article 216 of the Constitution of India, which deals with the constitution of High Courts, This is essential to ensure speedy disposal of cases, to secure that the operation of the legal system promotes justice a directive principle fundamental in the governance of the country which, it is the duty of the State to observe in all its actions; and to make meaningful the guarantee of fundamental rights in part III of the Constitution. The Apex Court further observed that the failure to perform this obligation, resulting in negation of the rule of law by the laws' delay must be justiciable, to compel performance of that duty. Applying the same principle, in our view, it must be held that the constitution of Motor Accident Claims Tribunal, as required by the State under Section 165 of the Motor Vehicles Act is justiciable issue and if it is shown that the existing Tribunal is inadequate to provide speedy justice to the people, a direction can be issued to the State Government to take appropriate steps in discharge of their duty, commensurate with the need to fulfil the State obligation of providing speedy justice to the victims or the dependents of the victims of motor accident. (emphasis added) 30. The learned counsel for the High Court Administration relied upon the order dated 2 nd August 2018 passed by the Apex Court in the case of All India Judges' Association vs. Union of India. It is

33 33 pil188.doc held that the responsibility for securing justice rests upon judiciary which makes it imperative upon the State to provide to the Judiciary the requisite infrastructure which is the constitutional obligation of the State. In paragraph 105 of its decision in the case of Brij Mohal Lal (supra), the Apex Court has summarized the law on point which reads thus: 105. The independence of the Indian judiciary is one of the most significant features of the Constitution. Any policy or decision of the Government which would undermine or destroy the independence of the judiciary would not only be opposed to public policy but would also impinge upon the basic structure of the Constitution. It has to be clearly understood that the State policies should neither defeat nor cause impediment in discharge of judicial functions. To preserve the doctrine of separation of powers, it is necessary that the provisions falling in the domain of judicial field are discharged by the judiciary and that too, effectively. (emphasis added) 31. In the case of Partur Bar Association vs. State of Maharashtra 8 wherein the issue of primacy in decision making for establishing the new Courts arose. A Division Bench of this Court examined the Maharashtra Civil Courts Act,1869 as well as the Code of Criminal Procedure,1973 and ultimately came to the conclusion in paragraph 25 which reads thus: 25 If the argument of the Petitioner is accepted that the power under the Criminal (4) Mh.L.J. 498