Indian Kanoon - Search engine for Indian Law

Burger C.J. of the American Supreme Court once observed: "A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it".

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 Tract 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.

10. Provisions for the appointment of Public Prosecutor and Process Server have not been made under the Fast Track Courts Scheme. A Public Prosecutor is necessary for effective functioning of the Fast Track Courts. Therefore, a Public Prosecutor may be earmarked for each such Court and the expenses for the same shall be borne out of the allocation under the head 'Fast Track Courts'. Process service shall be done through the existing mechanism.

11. A State Level Empowered Committee headed by the Chief Secretary of the State shall monitor the setting up of earmarked number of Fast Track Courts and smooth functioning of such Courts in each State, as per the guidelines already issued by the Government of India.

14. No right will be conferred on Judicial Officers in service for claiming any regular promotion on the basis of his/her appointment on ad-hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any Judicial Officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.

15. The retired Judicial Officers who are appointed under the Scheme shall be entitled to pay and allowances equivalent to the pay and allowance they were drawing at the time of their retirement, minus total amount of pension drawn/payable as per rules.

18.The High Court and the State Government shall ensure that there exists no vacancy so far as the Fast Track Courts are concerned, and necessary steps in that regard shall be taken within three months from today. In other words, steps should be taken to set up all the Fast Track Courts within the stipulated time.

It was submitted by learned counsel appearing for some of the parties that officers with tainted images have been appointed as Fast Track Courts. It is for the High Court of the concerned State to see if any undesirable person not fulfilling the requirements indicated in our directions above has been appointed, and to take immediate steps for terminating the appointment.