NCTE Guidelines Binding, Teachers’ Eligibility Test (TET) Not Mandatory:Supreme Court

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4347-4375 OF 2014 STATE OF U.P. AND ORS. ETC. ETC. …Appellants

Versus

 SHIV KUMAR PATHAK AND ORS.ETC. ETC. … Respondents

WITH CIVIL APPEAL NO. 4376 OF 2014 CIVIL APPEAL NO. 9530 OF 2017 @ SLP(C) No. 19087 OF 2017 @ SLP(C)……. CC 10408 OF 2014, CIVIL APPEAL NO. 9704 OF 2017 @ SLP(C)No. 11671 OF 2014 CIVIL APPEAL NO. 9705 OF 2017 @ SLP(C)NO. 11673 OF 2014 W.P.(C)No. 135 OF 2015, W.P.(C)No. 89 OF 2015, CIVIL APPEAL NO.9707 OF 2017 @ SLP(C)No. 62 OF 2014 CIVIL APPEAL NO.9708 OF 2017@ SLP(C)No. 1672 OF 2014 CIVIL APPEAL NO.9709 OF 2017@ SLP(C)No. 1674 OF 2014, CONT. PETN(C)NOS. 199 OF 2015, 399 OF 2015, 262 OF 2016, 265 OF 2016, 264 OF 2016, 263 OF 2016, 266 OF 2016, 192 OF 2016, 191 OF 2016, 189 OF 2016, 190 OF 2016, 287 OF 2016, 286 OF 2016, 285 OF 2016, 290 OF 2016, 452 OF 2016, 454 OF 2016, 538 OF 2016, 537 OF 2016, 752 OF 2016, 776 OF 2016, 780 OF 2016, 607 OF 2017, 626 OF 2017, 627 OF 2017, 652 OF 2017 AND 651 OF 2017 IN CIVIL APPEAL NOS. 4347-4375 OF 2014 AND WRIT PETITION (CIVIL)No. 100 OF 2016

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. This batch of cases arises out of judgment of the Allahabad High Court dated 20th November, 2013 in Shiv Kumar Pathak 1 and Ors. v. State of U.P. and ors.1 and involves the question of validity of decision of the State of Uttar Pradesh in prescribing qualifications for recruitment of teachers at variance with the guidelines of the National Council for Teachers Education (NCTE) dated 11th February, 2011 under Section 12(d) read with Section 12A of the National Council for Teachers Education Act, 1993 (NCTE Act) and Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) on the ground of repugnancy of State law with the Central law on a subject falling in concurrent list.

2. The following questions for consideration were framed by this Court vide its order dated 2nd November, 2015: a) Whether the NCTE guidelines fixing the minimum qualification are arbitrary and unreasonable? b) Whether the marks obtained in the TET Examination is the sole criterion for filling up the vacancies? c) Whether the High Court is justified in declaring [sic quashing] the 15th Amendment brought in on 1 2013(10) ADJ 121 2 31.08.2012 to the U.P. Basic Education (Teachers) Service Rules, 1981? d) Assuming, the guidelines framed by the NCTE are treated as intra vires, the question will be what interpretation would be placed by the Court on the concept of weightage as mentioned in the guidelines of the NCTE?

3. It will be appropriate to mention the background facts briefly for deciding the above questions. The Uttar Pradesh Basic Education Act, 1972 was enacted by the State of Uttar Pradesh to regulate basic education. The Act sets up a Board which is to organize, coordinate and control the imparting of basic education and teachers’ training. The State of Uttar Pradesh framed 1981 Rules under the Act to deal with the appointment of teachers.

4. In the wake of Eighty-Sixth Amendment to the Constitution of India inserting Article 21A for providing free and compulsory education to children of age of 6 to 14 years, the RTE Act was enacted. The RTE Act inter alia lays down qualifications for appointment and terms and conditions of service of teachers. 3 The Central Government in exercise of its powers under Section 23 of the Act, issued Notification dated 31st March, 2010 authorising the NCTE as the “academic authority” to lay down the minimum qualifications for a person to be eligible for appointment as a teacher. The NCTE thereafter issued Notification dated 23rd August, 2010 laying down qualifications for appointment of teachers for elementary education. The NCTE also issued guidelines dated 11th February, 2011 for conduct of Teachers Eligibility Test (TET) and also providing for weightage to the marks in the said test for recruitment of teachers. The 1981 Rules of the State were amended on 9th November, 2011 (the 12th Amendment) to bring the same in consonance with the Notifications dated 23rd August, 2010 and 11th February, 2011. Accordingly, the TET was held on 13th November, 2011 and result thereof was declared on 25th November, 2011. Thereafter on 30th November, 2011, an advertisement was issued for appointment of ‘trainee teachers’ in primary schools. The candidates submitted their applications. However, the said advertisement was cancelled and a fresh advertisement dated 7th December, 2012 was issued which came to be challenged and has been set aside 4 by the impugned judgment. The justification given by the State of Uttar Pradesh for such cancellation is that the result of TET was influenced by the money consideration. On 31st December, 2011 the amount of several lacs was seized with lists of candidates. FIR No. 675 of 2011 was lodged. Residence of Director of Secondary Education was also searched leading to recovery of certain lists and cash. The State constituted a high powered committee headed by the Chief Secretary on 10th April, 2012 which gave its report dated 1st May, 2012. It was recommended that candidates found involved in any irregularity/criminal activity in the TET examination be prohibited from the selection. The State Government took a decision dated 26th July, 2012 which was followed by 15th Amendment to the 1981 rules on 31st August, 2012 to the effect that instead of giving weightage to the TET marks as per 12th Amendment, the criteria of ‘quality point marks’ as prevalent prior to 12th Amendment was adopted. This amendment was challenged on the ground that it rendered the rules inconsistent with the NCTE guidelines referred to above.

5. Writ petitions were filed by the affected candidates against the cancellation of advertisement dated 30th November, 2011 and 5 the new advertisement dated 7th December, 2012 incorporating the criteria by way of 15th Amendment to the Rules which was at variance with the guidelines of the NCTE dated 11th February, 2011, supra to the extent that weightage for marks in TET was not contemplated.

6. The Single Judge of the High Court dismissed the writ petitions vide order dated 16th January, 20132 . Appeal against the said judgment has been allowed by the Division Bench by the impugned order. The Division Bench inter alia followed the judgment dated 31st May, 2013 by three Judges (Full Bench) in Shiv Kumar Sharma and Ors. v. State of U.P. and ors.3 The High Court held that the decision dated 26th July, 2012 of the State Government to change the criteria of selection by way of 15th Amendment in the Rules to make TET as a minimum qualification (without giving weightage for the marks in the said qualification as per NCTE guidelines) and cancelling the advertisement dated 30th November, 2011 was not sustainable and that the NCTE guidelines were binding. Accordingly, the 2 WP No. 39674 of 2012 Akhilesh Tripathi v. State of U.P. 3 2013(6) ADJ 310 6 State was directed to proceed and conclude the selection as per advertisement dated 30th November, 2011.

7. Before proceeding further, it will be appropriate to reproduce the statutory provisions and the notifications to the extent relevant which are as follows: “Sections 12 and 12A of the NCTE Act 12. Functions of the Council. – It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may – (a) … (b) … (c) … (d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognized institutions. … … … … … … 12A. For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognized by the Central 7 Government or a State Government or a local or other authority: Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 solely on the ground of non-fulfilment of such qualifications as may be specified by the Council: Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009.” Section 23 of the RTE Act “23. Qualifications for appointment and terms and conditions of service of teachers.-(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five 8 years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years. … … … … … …”


8. Notifications dated 31st March, 2010 and 23rd August, 2010 issued by the NCTE are as under: Notification dated 31st March, 2010 “NATIONAL COUNCIL FOR TEACHER EDUCATION NOTIFICATION New Delhi, the 31st March, 2010 S.O.750(E).- In exercise of the powers conferred by sub-section(1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009, the Central Government hereby authorizes the National Council for Teacher Education as the academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a teacher. Notification dated 23rd August, 2010 NATIONAL COUNCIL FOR TEACHER EDUCATION NOTIFICATION New Delhi, the 23rd August, 2010 F. No. 61-03/20/2010/NCTE/(N & S).-In exercise of the powers conferred by Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), 9 and in pursuance of Notification No. S.O. 750(E) : MANU/HRDT/0013/2010 dated 31st March, 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby lays down the following minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII in a school referred to in clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009, with effect from the date of this notification:- 1. Minimum Qualifications:- (i) CLASSES I-V (a) Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2 year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education) 10 AND (b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. (ii) Classes VI-VIII (a) B.A/B.Sc. and 2 year Diploma in Elementary Education (by whatever name known) OR B.A/B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed.) OR B.A/B.Sc. with at least 45% marks and 1 year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year BA/B.Sc. Ed or B.A.Ed./B.Sc. Ed. OR B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special Education) 11 AND (b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. 2. Diploma/Degree Course in Teacher Education:- For the purposes of this Notification, a diploma/degree course in teacher education recognized by the National Council for Teacher Education (NCTE) only shall be considered. However, in case of Diploma in Education (Special Education) and B.Ed (Special Education), a course recognized by the Rehabilitation Council of India (RCI) only shall be considered. 3. Training to be undergone:- A person-(a) with B.A/B.Sc. with at least 50% marks and B.Ed. qualification shall also be eligible for appointment for class I to V upto 1st January, 2012, provided he undergoes, after appointment, an NCTE recognized 6 month special programme in Elementary Education. (b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6 month special programme in Elementary Education.” 9. Notifications issued by the NCTE on 11th February, 2011 and 29th July, 2011 are as follows: Notification dated 11th February, 2011 “The implementation of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 requires the recruitment of a large number of 12 teachers across the country in a time bound manner. Inspite of the enormity of the task, it is desirable to ensure that quality requirement for recruitment of teachers are not diluted at any cost. It is therefore necessary to ensure that persons recruited as teachers possess the essential aptitude and ability to meet the challenges of teaching at the primary and upper primary level. 2. In accordance with the provisions of sub-section (1) of section 23 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, the National Council for Teacher Education (NCTE) has laid down the minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII, vide its Notification dated August 23, 2010. A copy of the Notification is attached at Annexure 1. One of the essential qualifications for a person to be eligible for appointment as a teacher in any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the Teacher Eligibility Test (TET) which will be conducted by the appropriate Government. 3. The rationale for including the TET as a minimum qualification for a person to be eligible for appointment as a teacher is as under: i. It would bring national standards and benchmark of teacher quality in the recruitment process; ii. It would induce teacher education institutions and students from these institutions to further improve their performance standards; iii. It would send a positive signal to all stakeholders that the Government lays special emphasis on teacher quality 13 Qualifying marks


9. A person who scores 60% or more in the TET exam will be considered as Teachers Eligibility Test pass. School managements (Government, local bodies, government aided and unaided) (a) may consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc., in accordance with their extant reservation policy; (b) should give weightage to the TET scores in the recruitment process; however, qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointment.” Notification dated 29th July, 2011 “(i) Training to be undergone,-A person- (a) with Graduation with at least 50% marks and B.Ed. qualification or with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard, shall also be eligible for appointment to Class I to V up to 1st January, 2012, provided he/she undergoes, after appointment, an NCTE recognized 6-month Special Programme in Elementary Education; (b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment an NCTE recognised 6-month Special Programme in Elementary Education....” 14


10. Though the State Government made an amendment in the 1981 Rules on 9th November, 2011 by providing that the names of the candidates shall be placed in descending order on the basis of the marks obtained in Teacher Eligibility Test conducted by the Government of Uttar Pradesh, this scheme was given a go bye by withdrawing the amendment of Rule 14 and restoring the position as it stood prior to 12th Amendment [of selecting teachers on the basis of ‘quality points’ as per appendix to Rule 14(3)] by Amendment dated 31st August, 2012 to the following effect: “(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in appendix. In the said rules the following appendix shall be inserted at the end. Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher.”



11. Rule 14(4) of the 1981 Rules of the State prior to the Notification dated 23rd August, 2010 which was restored in 2012 was as follows: “(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have 15 passed the said training course later and the candidates who have passed the training course in a particular year shall be arranged in accordance with the quality points specified in the Appendix. ” 16



12. We have heard learned counsel for the parties. Main contention raised on behalf of State of Uttar Pradesh is that while it was permissible for the Central Government to lay down eligibility qualifications for appointment of a teacher for elementary education by virtue of Section 23 of the RTE Act, the NCTE could not lay down any guideline so as to affect the power of a State to prescribe norms for selection of a teacher consistent with the qualifications under Section 23 of the RTE Act.


13. On the other hand, the stand of the original writ petitioners is that the subject of education falls under Entry 25 of List III of 7th Schedule of the Constitution after the 42nd Amendment. Thus, by virtue of Article 254 of the Constitution, the law made by the Parliament prevails over any law made by the State. It was submitted that The NCTE Act has been enacted by the Parliament to achieve ‘planned and coordinated development of the teacher education system’. The Council constituted under the Act is empowered to issue guidelines under Sections 12 and 12A for ensuring planned and coordinated development of teacher education and also to lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher. Further, 17 vide Notification dated 31st March, 2010 under Section 23 of the RTE Act, the Central Government has authorized the NCTE as the ‘academic authority’ to lay down minimum qualifications for a person to be eligible for appointment as a teacher.


14. Learned counsel for the NCTE submitted that notification dated 11th February, 2011 suggesting weightage to TET marks was merely a guideline and was not intended to be binding on the States. While TET was a mandatory requirement, weightage to the marks in the TET was merely a suggestion. This stand has also been taken by some of the learned counsel in connected matters. Reliance was placed on the stand of the NCTE in its affidavit dated 1st May, 2014 in CWP 346 of 2013 before the Punjab and Haryana High Court as follows: “That in view of the said recommendations of the Committee, it is stated that the guidelines contained in Clause 10 and 11 of NCTE guidelines dated 11th February, 2011 are directory in nature. Appropriate Government may in its own wisdom decide as to the eligible candidates on the basis of having qualified the Central Teachers Eligibility Test. However, education being the subject matter of concurrent list of the power to frame appropriate legislation/regulations/rules works with the appropriate legislature of the State Government and as such State Government is 18 well within as rights to prescribe the qualification of eligibility in the form that the candidates wanting to apply for the said post must necessarily qualify the Teachers Eligibility Test of said State. There would be no legality in the same and merely because a state government had failed to conduct the State Teachers Eligibility Test (STET) in a given year would not amount to taking a decision not to hold the exams and to hold the candidates having qualified Central Teacher Eligibility Test as eligible.”


15. Reliance was also placed on clarification dated 2nd September, 2016 by NCTE in reply to a question under the Right to Information Act, 2005(at page no. 733 of the SLP paper book in SLP(Civil)No. 1121 of 2017) as follows: “1. CTET/TET is an examination to qualify to become eligible for appointment as a teacher from classes I to VIII. 2. There is no binding to State/Central Government to select the candidate as a teacher basis on TET marks. TET is just eligibility for the appointment of teachers.”


16. There is no manner of doubt that the NCTE, acting as an ‘academic authority’ under Section 23 of the RTE Act, under the Notification dated 31st March, 2010 issued by the Central Government as well as under Sections 12 and 12A of the NCTE 19 Act, was competent to issue Notifications dated 23rd August, 2010 and 11th February, 2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule. However, since NCTE itself has taken the stand that notification dated 11th February, 2011 with regard to the weightage to be given to the marks obtained in TET is not mandatory which is also a possible interpretation, the view of the High Court in quashing the 15th Amendment to the 1981 Rules has to be interfered with. Accordingly, while we uphold the view that qualifications prescribed by the NCTE are binding, requirement of weightage to TET marks is not a mandatory requirement.


17. As a result of above, in normal course the State would have been at liberty to proceed with the selection in terms of advertisement dated 7th December, 2012 in accordance with the amended rules by way of 15th amendment, in view of developments which have taken place during pendency of these appeals, the said advertisement cannot proceed and while upholding the said advertisement, relief has to be moulded in the light of developments that have taken place in the interregnum. 20

18. Vide interim order dated 25th March, 2014, this Court directed the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers in terms of the impugned judgment. Thereafter, on 17th December, 2014, the said order was modified and the State was directed to appoint candidates whose names were not involved in malpractices in the TET test and who had obtained 70% marks (65% for SC, ST, OBC and physically handicapped or any other category covered by the Government policy for reservation). 54,464 posts have already been filled up in compliance of the orders of this Court. The said appointments were subject to result of these matters. It was also observed that if anyone without TET qualification is appointed his services will be terminated. Vide order dated 2nd November, 2015 it was noted that against 72,825 posts which were advertised, 43,077 candidates had completed training and were working while 15,058 candidates were undergoing training. Around 14,690 posts were vacant. It was further observed that candidates who had the required percentage of marks in terms of order dated 27th July, 2015 were to file their applications and a Committee 21 constituted for the said purpose could verify such percentage and if parity was found the same benefit could be extended.

19. We have been informed that 66,655 teachers have already been appointed in pursuance of the interim orders of this Court. Having regard to the entirety of circumstances, we are not inclined to disturb the same. We make it clear that the State is at liberty to fill up the remaining vacancies in accordance with law after issuing a fresh advertisement.

20. The matters will stand disposed of in above terms.


. …………………………………….J. (Adarsh Kumar Goel)
…………………………………….J. (Uday Umesh Lalit)

New Delhi; 25th July, 2017. 22

Supreme Court on Use of Video Conferencing And Other Technologically Advanced Measures In Matrimonial Cases

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
 TRANSFER PETITION (CIVIL) NO. 1912 OF 2014

KRISHNA VENI NAGAM …PETITIONER

VERSUS

HARISH NAGAM ...RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J



1. This transfer petition has been filed for transfer of Case No.179A/2013 u/s 13 of the Hindu Marriage Act, 1955 (the Act) titled “Harish Nagam vs. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court Hyderabad, Andhra Pradesh.


2. Case of the petitioner-wife is that she was married to the respondent-husband in the year 2008 at Kukatpally, Hyderabad. She was blessed with a girl child in 2009. While living in her in-law’s house at Jabalpur, she was ill-treated. She was subjected to mental and physical torture. She suffered injury on her spinal cord. She left the matrimonial home in 2012.

3. The respondent-husband filed application for restitution of Page 2 2 conjugal rights which was later on got dismissed as withdrawn. Thereafter, a divorce petition has been filed at Jabalpur while the petitioner has filed a domestic violence case at Hyderabad. Since the petitioner-wife, along with her minor daughter, is living with her parents, she cannot undertake long journey and contest the proceedings at Jabalpur by neglecting her minor child. She also apprehends threat to her security in attending proceedings at Jabalpur.

4. On 7th January, 2015, notice was issued and stay of proceedings was granted. The matter has been pending in this Court for more than two years.


5. On 9th January, 2017 when the matter came-up for hearing, the following order was passed: “This petition is filed under Section 25 of the Code of Civil Procedure seeking transfer of proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who is the wife of the respondent, she will face acute hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The marriage took place at Hyderabad. The petitioner has to look after her minor daughter who is living with her. Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature could be filed at the place where the marriage is solemnized or the respondent, at the time of the presentation of the petition, resides or where the parties to the marriage last resided together or where the wife is residing on the date of the presentation of the petition, in case she is the petitioner or in certain situations (as stipulated in clause iv) where the petitioner resides. This Court is flooded with petitions of this nature and having regard to the convenience of the wife transfer is normally allowed. However, in the process the litigants Page 3 3 have to travel to this Court and spend on litigation. Question is whether this can be avoided? We are of the view that if orders are to be passed in every individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial matters which are required to be dealt with expeditiously are delayed. In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered. However, before passing a final order, we consider it necessary to hear learned Attorney General who may depute some law officer to assist this Court. List the matter on 31st January, 2017. We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as amicus curiae. A set of papers may be furnished to the amicus.” (Emphasis added)



6. Thus, the question is whether an order can be passed so as to provide a better alternative to each individual being required to move this Court.


7. We have already noted that large number of transfer petitions of the present nature are being filed in this Court and are being mechanically allowed. Similar observation was made by this Court more than 10 years ago in Anindita Das v. Srijit Das1 “…On an average at least 10 to 15 transfer petitions are on board of each court on each 1 (2006)9 SCC 197 Page 4 4 admission day.” It has also been observed in a number of cases that in absence of any male member being available to accompany the wife who is party to matrimonial proceedings to a different place, it may render it “expedient for ends of justice” to transfer proceedings2 .



8. Of course in some cases, it was observed that instead of proceedings being transferred, the husband should pay travel, lodging and boarding expenses of the wife and/or person accompanying for each hearing3 . This trend has also been followed in other matrimonial disputes, including guardianship dispute, etc.4



 9. Spirit behind the orders of this Court in allowing the transfer petitions filed by wives being almost mechanically allowing is that they are not denied justice on account of their inability to participate in proceedings instituted at a different place on account of difficulty either on account of financial or physical hardship. Our Constitutional scheme provides for guaranteeing equal access to justice5 , power of the State to make special provisions for women and children6 and duty to uphold the dignity of women7 . Various steps 2 Mona Aresh Goel v. Aresh Satya Goel (2000) 9 SCC255; Lalita A. Ranga v. Ajay Champalal Ranga (2000) 9 SCC 355; Deepa v, Anil Panicker (2000) 9 SCC 441; Archana Rastogi v. Rakesh Rastogi (2000)10 SCC 350; Leena Mukherjee v. Rabi Shankar Mukherjee (2002) 10 SCC 480; Neelam Bhatia v. Satbir Singh Bhatia (2004) 13 SCC 436; Soma Choudhury v. Gourab Choudhaury (2004) 13 SCC 462; Rajesh Rani v. Tej Pal (2007) 15 SCC 597; Vandana Sharma v. Rakesh Kumar Sharma (2008)11 SCC 768; and Anju Ohri v. Varinder Ohri (2007) 15 SCC 556. 3 Premlata Singh v. Rita Singh (2005) 12 SCC 277 4 Gana Saraswathi v. H. Raghu Prasad (2000)10 SCC 277 5 Article 39A of the Constitution of India, 1950. 6 Article 15(3) of the Constitution of India, 1950. 7 Article 51-A(e) of the Constitution of India, 1950. Page 5 5 have been taken in this direction8 .


10. As noted in the Order dated 9th January, 2017 quoted above, Section 19 of the Act permits proceedings to be filed not only at a place where the wife resides but also at place where marriage is solemnized or the place where the parties last resided together. It is mostly in the said situations that the wife has hardship in contesting proceedings. At the same time, under the law the husband is legally entitled to file proceedings at such places. Territorial jurisdiction of court is statutorily laid down in C.P.C. or other concerned statutes.



11. Accordingly, we have heard Shri C.A. Sundaram, learned senior counsel as amicus curiae. Learned amicus has suggested that Section 19 of the Act should be interpreted to mean that the jurisdiction at the 8 . In Articles 243-D and 243-T of the Constitution, provision has been made for reservation for women in Panchayats and Municipalities by 73rd and 74th Amendments. Need for affirmative action consistent with the Article 15(3) of the Constitution has led to several measures being adopted by the legislature, executive as well as the judiciary to advance gender justice. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) underlines the awareness of the international commitments on the subject which has inspired several judgments of this Court [Vishaka v. State of Rajasthan (1997) 6 SCC 241; Arun Kumar Agrawal v. National Insurance Co. Ltd. (2010) 9 SCC 218; Charu Khurana v. Union of India (2015)1 SCC 192; Prakash v. Phulavati (2016)2 SCC 36; Danial Latifi v. Union of India (2001) 7 SCC 740; Voluntary Health Assn. of Punjab v. Union of India (2013) 4 SCC 1 and; Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa (1987) 2 SCC 469. It was observed in Voluntary Health Assn. as under: “20. It would not be an exaggeration to say that a society that does not respect its women cannot be treated to be civilised. In the first part of the last century Swami Vivekanand had said: ‘Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.’” Page 6 6 place other than where wife resides being available only at the option of the wife or that such jurisdiction will be available in exceptional cases where the wife is employed and the husband is unemployed or where the husband suffers from physical or other handicap or is looking after the minor child. Even though we are unable to give such interpretation in the face of plain language of statute to the contrary and it is for the legislature to make such suitable amendment as may be considered necessary, we are certainly inclined to issue directions in the interest of justice consistent with the statute.


12. Mr. Nadkarni, learned Addl. Solicitor General has suggested that it will be appropriate to give some directions to meet the situation. He submitted that paramount consideration in dealing with the issue ought to be the interest of justice and not mere convenience of the parties. Thus, where husband files a petition at a place away from the residence of the wife, the husband can be required to bear travel and incidental expenses of the wife, if it is so considered appropriate in the interest of justice. At the same time, if the husband has genuine difficulty in making the deposit, proceedings can be conducted by video conferencing. At least one court room in every district court ought to be equipped with the video conferencing facility. The interest of the minor child has also to be kept in mind along with the interest Page 7 7 of the senior citizens whose interest may be affected by one of the parties being required to undertake trips to distant places to face the proceedings. Protracted litigation ought to be avoided by better management and coordination so that number of adjournments can be reduced.



13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network and anr. v. W.S.G. Cricket Pte. Ltd.9 this Court observed: “19. In Spiliada Maritime 10case the House of Lords laid down the following principle: “The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice.” The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look 9 (2003)4 SCC 341 10 Spiliada Maritime Corpn. V. Cansulex Ltd. (1986)3 All ER 843 Page 8 8 for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried.” Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed11 .




14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient 11 Kusum Ingots & Alloys Ltd. v. Union of India and anr. (2004) 6 SCC 254 para 30 Page 9 9 to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing12 .


15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution. 12 State of Maharashtra etc. v. Dr. Praful B. Desai etc. (2003) 4 SCC 601; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and anr. (2005) 3 SCC 284; Budhadev Karmaskar (4) v. State of West Bengal (2011) 10 SCC 283; Malthesh Gudda Pooja v. State of Karnataka and ors. (2011) 15 SCC 330 Page 10

10



16. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts.


17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.


18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents Page 11 11 are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:- i) Availability of video conferencing facility. ii) Availability of legal aid service. iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. iv) E-mail address/phone number, if any, at which litigant from out station may communicate.



19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled “Harish Nagam vs. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the Page 12 12 transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith.

20. The Registry to transmit a copy of this order to the courts concerned. A copy of this order be sent to all the High Courts for appropriate action.

21. We place on record our appreciation for the valuable assistance rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor General and Mr. C.A. Sundaram, learned Senior Advocate.

 21. The transfer petition is disposed of accordingly. …………..…………………………….

J. [ADARSH KUMAR GOEL] .….……………………..……………..

J. [UDAY UMESH LALIT]

NEW DELHI; MARCH 9, 2017.

TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS

1 REPORTABLE

 IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

SUO MOTU WRIT(CRL.) NO.1 OF 2017

IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS

 O R D E R

During the course of hearing of Criminal Appeal No.400/2006 and connected matters, Mr. R. Basant, learned Senior Counsel appearing for the appellants-complainant, pointed out certain common inadequacies and deficiencies in the course of trial adopted by the trial court while disposing of criminal cases. In particular, it was pointed out that though there are beneficial provisions in the Rules of some of the High Courts which ensure that certain documents such as list of witnesses and the list of exhibits/material objects referred to, are annexed to the judgment and order itself of the trial court, these features do not exist in Rules of some other High Courts. Undoubtedly, the judgments and orders of the trial court which have such lists annexed, can be appreciated much better by the appellate courts. Certain other matters were also pointed out by Mr. Basant, learned Senior Counsel for the appellantscomplainant, during the course of arguments. He made the 2 following submissions : A. In the course of discussions at the Bar while considering this case, this Court had generally adverted to certain common inadequacies and imperfections that occur in the criminal trials in our country. I venture to suggest that in the interests of better administration of criminal justice and to usher in a certain amount of uniformity, and acceptance of best practices prevailing over various parts of India, this Court may consider issue of certain general guidelines to be followed across the board by all Criminal Courts in the country. B. The following areas may be considered specifically: 1. The pernicious practice of the Trial Judge leaving the recording of deposition to the clerk concerned and recording of evidence going on in more than one case in the same Court room, at the same time, under the presence and general supervision of the presiding officer has to be disapproved strongly and discontinued forthwith. A visit to Delhi Trial Courts any day will reveal this sad state of affairs, I am given to understand. 2. The depositions of witnesses must be recorded, in typed format, using computers, in Court, to the dictation of the presiding officers (in English wherever possible) so that readable true copies will 3 be available straightaway and can be issued to both sides on the date of examination itself. 3. The deposition of each witness must be recorded dividing it into separate paragraphs assigning para numbers to facilitate easy reference to specific portions later in the course of arguments and in Judgments. 4. Witnesses/documents/material objects be assigned specific nomenclature and numbers like PWs/DWs/CWs (1 onwards); Ext. P/Ext. D/Ext. C (1 onwards); MOs (1 onwards) etc., so that reference later becomes easy and less time-consuming. Kindly see the Relevant Rules Kerala Criminal Rules of Practice 1982 “Rule 62 – Marking of exhibits.- (1) Exhibits admitted in evidence shall be marked as follows: (i) If filed by the prosecution, with capital letter P followed by a numeral P1, P2, P3 etc (ii) If filed by defence, with capital letter D followed by a numeral D1, D2, D3 etc (iii) If Court exhibits, with capital letter C followed by a numeral C1, C2, C3 etc. (2) All exhibits marked by several accused shall be marked consecutively. (3) All material objects shall be marked in Arabic numbers in continuous series, whether exhibited for the prosecution or the defence or the Court as M.O.1, M.O.2, M.O.3, etc” Andhra Pradesh Criminal rules of Practice and Circular Orders, 1990 4 “Rule 66 – How witness shall be referred to Witnesses shall be referred by their names or ranks as P.W.s., or D.Ws., and if the witnesses are not examined, but cited in the chargesheet, they should be referred by their names and not by numbers allotted to them in the charge-sheet.” 5. Every judgment must mandatorily have a preface showing the name of the parties and an appendix showing the list of Prosecutions Witnesses, Prosecution Exhibits, Defence Witnesses, Defence Exhibits, Court witnesses, Court Exhibits and Material Objects. Kindly see inter alia the Relevant rules in the Kerala Criminal Rules of Practice, 1982. “Rule 132 – Judgment to contain certain particulars.- The Judgment in original decision shall, apart from the particulars prescribed by Section 354 of the Code also contain a statement in Tabular Form giving the following particulars, namely:- 1. Serial Number 2. Name of the Police Station and the Crime No. of the offence 3. Name Description of the Accused 4. Father's name 5. Occupation 6. Residence 7. Age 8. Occurrence Date of 9. Complaint 10. Apprehension 11. Release on bail 12. Commitment 13. Commencement of trial 14. Close of trial 15. Sentence or order 16. Service of copy of judgment or 5 finding on accused 17. Explanation of delay Note.- (1) Date of complaint in column 9 shall be the date of the filing of the charge-sheet in respect of case instituted on police report and the date of filing of the complaint in respect of other case. (2) Date of apprehension in column 10 shall be the date of arrest. (3) Date of commencement of trial in column 13 shall be : (a) In summons cases, the date on which the particulars of the offence are stated to the accused under section 251 of the Code. (b) In warrant cases instituted on police report, the date on which the documents under section 207 of the Code are furnished to the accused and the Magistrate satisfied himself of the same under section 238 of the Code. (c) In other warrant cases, when the recording of evidence is commenced under section 244 of the Code. (d) In Sessions trials, when the charge is read out and explained to the accused under section 228 of the Code. “Rule 134 – List of witnesses etc. to be Appended to Judgement. There shall be appended to every judgment a list of the witnesses examined by the prosecution and for the defence and by the Court and also a list of exhibits and material objects marked.” 6 6. Once numbers are assigned to the accused, witnesses and exhibits, they be referred to, subsequently in the proceedings and in the judgments with the help of such numbers only. The practice of referring to the names of the accused/witnesses and documents descriptively in the proceedings paper and judgments creates a lot of confusion. Whenever there is need to refer to them by name their rank as Accused/Witness must be shown in brackets. 7. Repetition of pleadings, evidence, and arguments in the judgments and orders of the Trial Court, Appellate and Revisional Courts be avoided. Repetition of facts, evidence, and contentions before lower Courts make the judgments cumbersome, and takes away the precious time of the Court unnecessarily. The Appellate/Revisional Court judgment/order is the continuation of the lower court judgment and must ideally start with “ in this appeal/revision, the impugned judgment is assailed on the following grounds” or “the points that arise for consideration in this appeal/revision are”. This does not of course, take away the option/jurisdiction of the Appellate/Revisional Courts to re-narrate facts and contentions if they be inadequately or insufficiently narrated in the judgment. Mechanical re narration to be avoided at any rate. 7 8. In every case file, a judgment folder to be maintained, and the first para in the appellate/revisional judgment to be numbered as the next paragraph after the last para in the impugned judgment. This would cater to a better culture of judgment writing saving precious court time. 9. The healthy practice in some states of the Investigating Officer obtaining and producing (or the wound certificate/ post mortem certificate showing) the front and rear sketch of the human torso showing the injuries listed in the medical documents specifically, may be uniformly insisted. This would help the judges to have a clearer and surer understanding of the situs of the injuries. 10. Marking of contradictions – A healthy practice of marking the contradictions/Omissions properly does not appear to exist in several States. Ideally the relevant portions of case diary statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a Prosecution/Defence exhibit. 11. The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The 8 relevant portion of such prior statements of living persons used for contradiction or corroboration U/s. 145/157 of the Evidence Act deserves to be marked separately and specifically. 12. The practice of whole sale marking of confession statement of accused persons for introduction of the relevant statement admissible under S. 27 of Evidence Act deserves to be deprecated. Ideally the admissible portion and that portion alone, must be extracted in the recovery memos (Mahazar or Panch – different nomenclature used in different parts of the land) within inverted commas. Otherwise the relevant portion alone written separately must be proved by the Investigating Officer. Back door access to inadmissible evidence by marking the entire confession statement in the attempt to prove the admissible portion under S. 27 of Evidence Act should be strictly avoided. 13. The Trial Courts must be mandatorily obliged to specify in the Judgment the period of set off under Section 428 Cr.P.C specifying date and not leave it to be resolved later by jail authorities or successor presiding officers. The Judgements and the consequent warrant of committal must specify the period of set off clearly. 9 In the circumstances, we direct that notices be issued to the Registrars General of all the High Courts, and the Chief Secretaries/the Administrators and the Advocates-General/Senior Standing Counsel of all the States/Union Territories, so that general consensus can be arrived at on the need to amend the relevant Rules of Practice/ Criminal Manuals to bring about uniform best practices across the country. This Court may also consider issuance of directions under Article 142 of the Constitution. They can be given the option to give suggestions also on other areas of concern. .........................J [S. A. BOBDE] ........................J [L. NAGESWARA RAO] New Delhi; MARCH 30, 2017.