VERY IMPORTANT POINT
Fast Track Courts Scheme is Constitutionally valid. For its establishment, implementation and functioning Apex Court has issued 18 directions in this landmark judgment all the High Court and all the concerned State Govts. requiring them to submit quarterly Status Reports, First side report to be given by the end of August 2002 for consideration by the appropriate Bench of the Apex Court.

Headnote:(i) Constitution of India-Article 139-A-Petitions against establishment and functioning of Fast Track Courts recommended by 11th Finance Commission to solve the problem created by long pendency of cases in different courts all over the country-Transferred to Supreme Court-Counsel for parties opposing appointment of retired Judges, more particularly, those with adverse service records-Whether be accepted? (Yes).
       Held : We find substance in the stand taken by the learned counsel who have highlighted the non-desirability of appointing judicial officers who did not carry good reputation so far as their honesty and integrity is concerned. It is to be noted that in All India Judges Association v. Union of India and others [(1992) 1 SCC 119] and in All India Judges Association and Ors. v. Union of India and Ors. [(1993) 4 SCC 288], this Court took note of the non-desirability to grant the benefit of two years extension in service i.e. from 58 years to 60 years in the case of officers who were not found to be of continued utility. In each case an evaluation of the service records was directed to be undertaken to find out whether the officer has or lacks potentiality for getting such benefit. The qualities desired of a judge can be simply stated: that if he be a good one and that he be thought to be so . Such credentials are not easily acquired. The judge needs to have the strength to put an end to injustice and the faculties that are demanded of the historian and the philosopher and the prophet . (Paras 6 & 7)
       (ii) Constitution of India-Chapter VI Articles 233(2), 234 and 235-Constitutional validity of Fast Track Courts Scheme recommended by 11th Finance Commission to solve problem of law pending cases in Courts all over India-Is it constitutionally valid? (Yes).
       Held : One of the pleas taken by the parties questioning constitutional validity of the Fast Track Courts Scheme is that Constitution does not envisage establishment of Fast Track Courts. This plea is clearly without any substance. As observed by a nine-Judge Bench of this Court in Supreme Court Advocates-on-Record Association and Ors. v. Union of India [(1993) 4 SCC 441], appointment of a person to be a District Judge rests with the Governor, but he cannot make the appointment unless there has been an effective and meaningful consultation with the High Court or the High Court has recommended the appointment. In order that the requirement of consultation does not end up as an empty formality, in the event of difference of opinion, there must be an effective interchange of viewpoints. In cases governed by Article 233(2), as a matter of rule, the High Court s recommendation must be accepted. Departure from the opinion of the High Court should be a rare event. The Constitution relies on the collective wisdom of the High Court as a body and not that of any single individual. Though the Fast Track Courts Scheme is envisaged by the Central Government on the basis of the views indicated by the Finance Commission, yet appointments to the Fast Track Courts are to be made by the High Court keeping in view the modalities set out. Therefore, merely because the suggestion has stemmed from the Central Government; it cannot be said that there has been any violation of any constitutional mandate. It is to be noted that Chapter VI of the Constitution deals with Subordinate Courts. While Article 233 relates to the recruitment to the District Judges, Article 234 relates to the recruitment of members of the judicial service of the State other than District Judges. The power of appointment under Article 234 does not include the power to confirm the promotion of judicial officers other than judicial officers which is vested exclusively in the High Court by Article 234. Any rule which provides that the authority belongs to the Governor in consultation with the High Court, shall be void, as observed by this Court in State of Assam and Anr. v. S.N. Sen and Anr. [1971(2) SCC 889]. While the promotion of District Judges shall be in the hands of the Governor acting in consultation with the High Court in terms of Article 235, the posting and promotion etc. of officers of the State Judicial Services other than the District Judges lie exclusively in the hands of the High Court. The word control referred to in Article 235 is used in a comprehensive sense to include general superintendence of the working of the Subordinate Courts. In other words the control vested in the High Court under this Article is complete control, subject only to the power of the Governor in the matter of appointment and promotion of District Judges. The provision under this Article is to ensure independence of judiciary. Above being the position there is nothing constitutionally improper in the scheme. It is the High Court which has to play a pivotal role in the implementation of the scheme for its effective implementation and achievement of the above objectives, of course, complying with the constitutional requirements embodied in relevant provisions of Chapter VI of the Constitution. (Para 9)
       (iii) Fast Track Courts Scheme-Laudable object to solve problem of long pending cases in Courts all over India-Initial teething problems highlighted by parties regarding its establishment and functioning-Whether Apex Court should issue directions to take care of those problems? (Yes) (See Para 10)-18 directions are given.
       (iv) Fast Track Courts Scheme-Complaints regarding that officers with tainted images have been appointed-High Court and concerned State directed to take immediate steps to terminate such appointments if not found according to requirements indicated in 18 directions. (Para 11)
       (v) Fast Track Courts Scheme-18 directions given to for its establishment and functioning-Copies to go to each High Court and State Govt. for compliance (Para 12)-Quarterly Status Reports be submitted by each High Court and State Govt.-First such report to come by end of August, 2002 (Para 13)-Petition to be treated as closed accordingly.

JUDGMENT

Arijit Pasayat, J.-All these cases relate to the establishment and functioning of Courts described as Fast Track Courts and, therefore, are disposed of by this common judgment. The Eleventh Finance Commission (hereinafter referred to as the Finance Commission ) allocated Rs. 502.90 crores under Article 275 of the Constitution of India, 1950 (in short the Constitution ) for the purpose of setting up of 1734 Courts in various States to deal with long pending cases, particularly, Sessions cases. As allocation of funds made by the Finance Commission stipulated time bound utilization within a period of five years, various State Governments were required to take necessary steps to establish such Courts. It appears that the Finance Commission had suggested that the States may consider re-employment of retired judges for limited period, for the disposal of pending cases, since these Courts were to be ad hoc in the sense that they would not be a permanent addition to the number of Courts within a particular State. Challenge was made to the Scheme known as the Fast Track Courts Scheme in various High Courts, primarily on the ground that there was no constitutional sanction for employment of retired judges and effective guidelines were not in operation. It was also highlighted that infrastructural facilities were not available so as to make Scheme a reality. Several such deficiencies were pointed out. A plea was made that instead of retired officers, eligible members of the Bar should be considered for appointment.

2. Stand of the Union of India on the other hand was that on the recommendations of the Finance Commission, a note was prepared by the Department of Justice, Government of India. There is no mandatory requirement for appointment of retired Sessions/Additional Sessions Judges or other officers. Ad hoc promotion of judicial officers was also contemplated. It was pointed out that consequential vacancies created on account of ad hoc promotions can be filled up by a special drive so that there is no shortfall in the personnel of the lower Courts.

3. Learned counsel appearing for the various parties were unanimous on one important aspect i.e. the problems created by long pendency of cases in different Courts all over the country. It was also conceded that any effort for reducing the pendency is a welcome step. Keeping in view the importance of the matter, learned counsel for the parties were asked to give their suggestions. Mr. Harish N. Salve, learned Solicitor General has given several suggestions with which we shall deal later. Learned counsel for the other parties have more or less agreed to the suggestions, except to the suggestion regarding appointment of retired judges, more particularly, those with adverse service records.

4. The anxiety of all concerned about quick dispensation of justice has been succinctly stated by one of us (Hon ble Kirpal, J. as he then was ) in All India Judges Association & Ors. v. Union of India & Ors. (JT 2002(3) SC 503) in the following words:

"An independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. It is well known that justice delayed is justice denied. Time and again the inadequacy in the number of judges has adversely been commented upon. Not only have the Law Commission and the standing committee of Parliament made observations in this regard, but even the head of the judiciary, namely, the Chief Justice of India has had more occasions than once to make observations in regard thereto. Under the circumstances, we feel it is our constitutional obligation to ensure that the backlog of the cases is decreased and efforts are made to increase the disposal of cases. Apart from the steps which may be necessary for increasing the efficiency of the judicial officers, we are of the opinion that time has now come for pr

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2002 Supreme(SC) 620

Cases Referred (5)