In a path breaking and hugely significant development, the Delhi High Court in a latest, landmark and extremely laudable judgment titled Prag Chawla vs. Government of NCT of Delhi and another in W.P.(C) 3939/2019 has very rightly and commendably directed the government of NCT Delhi to decide on the establishment of 18 fast track courts and 22 commercial courts in various districts of Delhi as demanded by the Delhi High Court. It also sought a report on the decision taken before May 30. A Division Bench of Chief Justice Rajendra Menon and Justice Anup Jairam Bhambhani held quite explicitly on May 16, 2019 that once the High Court has made a demand for establishment of certain courts (fast track and commercial) for speedy disposal of cases, the State Government cannot sit over the appointments but instead is duty bound to sanction the requisite number of posts.
Needless to say, the Delhi High Court was hearing a writ petition filed by one Prag Chawla who sought directions for appointments to the posts for these courts. This matter remained pending before the State government for more than two years. Senior Counsel Dayan Krishnan appeared on behalf of the petitioner along with others while Anupam Shrivastava appeared on behalf of the Delhi government and Rajshekhar Rao represented the Delhi High Court itself.
To start with, this judgment sets the ball rolling in para 1 by first and foremost observing that, 'This writ petition has been filed by the petitioner in public interest and the prayer made reads as under:
a) Direct the Respondent No. 1 to make the FTC scheme as a permanent feature in place of the present ad-hoc and temporary FTC scheme and accordingly sanction 20 posts of Additional District & Sessions Judge in Delhi Higher Judicial Service along with 95 posts of ancillary staff on permanent basis for Fast Track Courts.
b) Direct the Respondent No. 1 to create 22 posts of Delhi Higher Judicial Service in super time scale for commercial court judges along with ancillary staff.
c) Pass any other order(s) which this Hon'ble Court deems fit and proper, in favour of the Petitioner'.
To be sure, it is then pointed out in para 2 that, 'The Full Court of the High Court of Delhi had sanctioned 20 posts of Additional District & Sessions Judge in Delhi Higher Judicial Service and other requirements and 22 further posts in the Delhi Higher Judicial Service in super time scale for establishment of commercial courts.'
As things stand, para 3 then brings out that, 'The matter is pending before the Govt. of NCT of Delhi/respondent No. 1 since more than 2 years and finally the communication received from time to time from the Govt. of NCT of Delhi and the response of the Delhi High Court have been brought before us by Shri Rajshekhar Rao, learned counsel representing the Delhi High Court in the form of a paper book which contains various communications between the Govt. of NCT of Delhi and the Delhi High Court.'
Be it noted, it is then brought out in para 4 that, 'On 06.05.2019, the Principal Secretary (Law, Justice & LA) has made a communication to the Registrar General of this Court which reads as under:
With reference to your office letter No. 5002/DHC/Gaz/G-1/2018 dated 22.11.2018 on the above captioned subject, I am directed to inform you that the proposal for creation of 18 post of ADJs in Delhi Higher Judicial Service along with 86 posts of ancillary staff for fast Track Courts was placed before the Council of Ministers for consideration. However, the following information is further required to take necessary action in the matter:
1. Total number of criminal cases relating to serious offences which are pending for more than two years in District Courts.
2. Average rate of disposal of cases @ each Fast Track Court in last two years to consider whether if only 18 Fast Track Courts shall serve the purpose or more number of Courts are required to be established.
The above information may kindly be provided at the earliest'.'
It is then observed in para 5 that, 'From the aforesaid, it is clear that the Department wants the total number of criminal cases relating to serious offences which are pending for more than 2 years in the District Courts in Delhi.'
As it turned out, it is then held in para 6 that, 'Having heard Mr. Dayan Krishnan, learned Senior Counsel representing the petitioner, Mr. Anupam Srivastava, learned Addl. Standing Counsel for the respondent No. 1/Govt. of NCT of Delhi and Mr. Rajshekhar Rao, learned counsel for the respondent No. 2/Delhi High Court and on going through the records, we find that most of these details have already been furnished by the Delhi High Court and are available with the Govt. of NCT of Delhi. In spite thereof, if any further specific details are required, the Law Secretary should communicate it to the Registrar General of this Court by 18.05.2019 and the Registrar General shall personally furnish the entire information to the Principal Secretary (Law, Justice & LA) on 20.05.2019 by attending his office.'
Going forward, it is then held in para 7 that, 'As far as the second query is concerned, the Govt. of NCT of Delhi wants to know as to how many further fast track courts are necessary to be established. The query clearly indicates that the Govt. of NCT of Delhi is even willing to sanction more courts and therefore there should not be any impediment in sanctioning at least the 18 courts indicated in the query.' Para 8 states that, 'Accordingly, we direct that appropriate sanction for establishment of 18 fast track courts should be communicated immediately to the Delhi High Court.'
While underlying the reasons behind this landmark order, it is then pointed out in para 9 that, 'We are constrained to pass the aforesaid order primarily on account of two facts: one, that the statistics provided by the petitioner which are based on information received under the Right to Information Act shows that more than 6,414 cases under the Protection of Children from Sexual Offences Act, 2012 ('POCSO') are pending in various courts in Delhi and more than 2,800 cases under various other sections, particularly Section 376 IPC are pending in the courts in Delhi. The mandate of Section 309 of the Cr.P.C. is that cases under Section 376 IPC and cognate provisions, which would now also include cases under POCSO are required to be decided within two months; and decision of cases within the time-frame provided under the statute until and unless adequate number of fast track courts are sanctioned.'
What's more, it is then pointed out in para 10 that, 'That apart, Mr. Dayan Krishnan, learned Senior Counsel representing the petitioner has invited our attention to a Division Bench judgment of the Bombay High Court in the case of Vihar Durve s. State of Maharashtra & Ors., 2018 Law Suit (Bom) 2435 and the principles crystallized in paras 32 and 33 thereof which read as under:
32. This Court went to the extent of holding that when the State Government is conferred with the power to establish the Courts, the said power has to be exercised after consultation with the High Court and in the matter of such consultation, the view of the High Court will have a primacy.
33. Thus, it is already held that in the matter of establishing the new Courts, the views of the High Court will have the primacy. Considering the mandate of Article 21 and Article 39-A, it is the duty of the judicial system to take all such steps so as to ensure that no citizen is deprived of his fundamental rights guaranteed under Article 21 of the Constitution of speedy trial. It is a settled position that it is the obligation of the State to provide all possible infrastructure to the judiciary to ensure that the mandate of Article 21 is followed. If the argument of the State is accepted, it would mean that in a given case, when the High Court Administration is of the considered view that a particular place, it is necessary to create certain number of additional posts of Judges, the State will finally decide whether creation of additional posts of the Judges is necessary at that particular place. Therefore, it comes to it that the State will decide how many Judges are required to deal with the pendency of cases at a particular place and for ensuring the speedy trial. If this view is accepted, it will impinge upon the independence of judiciary which is a part of the basic structure of the Constitution of India'.'
It cannot be lost on us that it is then pointed out in para 11 that, 'These principles clearly indicate that once the High Court has sought for certain courts for speedy disposal of cases, the State Government cannot sit over it and has no option but to sanction the posts as demanded by the High Court.'
Above all, it is then pointed out in para 12 that, 'That apart, now under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the State is also bound to create commercial courts in an endeavour to dispose of commercial disputes. More than 22 courts are required to be established in various Districts of Delhi for clearing cases under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and the demand for the same is also pending before the Govt. of NCT of Delhi. Once the High Court has made a demand, the State is duty bound to sanction the posts and therefore we direct that with regard to 18 fast track courts and 22 commercial courts as demanded by the High Court, the matter be placed before the appropriate authorities namely the Cabinet, a decision taken and a report submitted to this Court on or before 30.05.2019.' The last para 13 then says that, 'List on 30.05.2019.'
To conclude, State must comply with what the Delhi High Court has ordered in its extremely landmark and laudable judgment. It has already been stated in detail above. There is thus just no need of repetition!