Report No. 151
Report No. 151
1.1. Even after forty-four years of the promulgation of the Constitution of India, there are areas of jurisprudence in which issues regarding the jurisdiction of courts as well as issues regarding the law applicable thereto remain unclear, incomplete and unsatisfactory. One such area is the law pertaining to admiralty, shipping, carriage by sea and maritime matters.
While there are statutes relating to some aspects of this field of jurisprudence, there is a vast grey area which calls for legislative action. However, the prevalence of absolute chaos has been averted and a modicum of order has been preserved as a result of the transitional provisions of the Constitution enabling the continuance of the status quo ante in all matters until specific legislation is introduced.
1.2. Article 372 of the Constitution has enacted a general saving provision that, subject to the provisions of the Constitution, "all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislation or competent authority."
Explanation I to the Article defines a "Law in force" as including "a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either, at all or in particular areas"; and Explanation II clarifies that "any law passed or made by a Legislature or other competent authority in the territory of India which, immediately before the commencement of this Constitution, shall subject to any such adaptations and modifications as aforesaid, continue to have such extra-territorial effect."
These provisions preserved the continuance in force of the English Common Law as well as the substantive laws earlier applicable to India in pre-independence period even after India became a Republic.
1.3. In regard to the jurisdiction of courts, Article 225 of the Constitution provides specifically that all jurisdictions of existing High Courts as on the date of commencement of the Constitution would continue subject to the provisions of any law of the appropriate Legislature made by virtue of the powers conferred thereon by the Constitution. In other words, the jurisdiction of, and the law administered by, any existing High Court and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of the Court and the members thereof sitting alone or in Division Courts, continue to be the same as immediately before the commencement of the Constitution.
The proviso to Article 225, and Articles 226 and 227 enlarge the powers of the High Courts in certain respects which they did not have prior to the Constitution have direct impact in the areas of jurisprudence with which we are concerned here. Likewise, Articles 32 and 136 also vest powers in the Supreme Court which would enable the Supreme Court to examine and pronounce opinions as effective and conclusive on matters which pertain to these branches of jurisprudence as on matters pertaining to any other branch of the law.
1.4. Under the Indian Independence Act, 1947, India became a dominion with sovereign legislative power to amend or repeal the existing laws including the Government of India Act, 1935 and the British statutes which were thought to have been extended to India. Section 6 of the Independence Act conferred this power on the legislature of the newly created Dominion of India. Under this Act, no British statute passed on or after 15th August, 1947 was to extend to India of its own force and the legislature of India was empowered to repeal or amend the Acts of the British Parliament in their applications to India.
Since a number of statutes made by the British Parliament were applicable to India. Article 372 of the Constitution took care to provide for the continuance of the existing law until they were altered, repealed or amended by a competent legislature. After the promulgation of the Constitution, the Parliament had power to replace the British statutes by enacting laws of its own, although the Parliament did not do so till 1957. As a result, the British statutes which were expressly applicable to India on account of India being a 'British Possession' continued to apply in India without any change in the text.
Since India had acquired the status of sovereign Republic, the continuation of British statutes were bound to give rise to anomalies as was noticed by the Supreme Court in the case of State of Madras v. C.G. Menon : AIR 1954 SC 517. The Supreme Court, while considering the provisions of the Fugitive Offenders Act, 1881, an Act of the British Parliament, observed that it was not possible to work out the Act and apply the same to the changed situation that had arisen after the coming into force of the Constitution of India. The Supreme Court emphasised the urgent need for examination of the British statutes in force in India with a view to their repeal or amendment.
1.5. Thereafter, the First Law Commission of India examined the British statutes applicable or of possible application to India and forwarded a detailed report (5th Report) to the Government in May, 1957. The Law Commission, while dealing with the British Statutes relating to subjects like Merchant Shipping, Extradition and Admiralty Jurisdiction with respect to which Indian enactments did not cover the whole field, observed that it was necessary for the Parliament to replace the British statutes by enacting laws of its own. Appendix III to the Law Commission's Report recommended that the British statutes, i.e. Admiralty Jurisdiction (India) Act, 1860 and the Colonial Courts of Admiralty Act, 1890 should be repealed by Indian law.
The Commission further recommended that the necessary substantive provisions of the Colonial Courts of Admiralty Act, 1890 may be incorporated into the Colonial Courts of Admiralty (India) Act, enacted by the Indian legislature so as to make the Indian law comprehensive. Pursuant to the recommendations of the Law Commission, the British Statutes (Applicable to India) Repeal Act, 1960 was enacted by the Parliament repealing 259 statutes but the admiralty jurisdiction remained untouched, as a result of which various provisions as contained in the British Statutes have continued to apply to India.
1.6. The unsatisfactory state of law in admiralty jurisdiction came to the notice of the Supreme Court in M. V. Elizabeth v. Harwan Investment and Trading Pvt. Ltd. : JT 1992 (2) SC 65. The Supreme Court was surprised and shocked at the absence of legislative exercise in the sphere of admiralty jurisdiction. Sahai, J. felt strongly and expressed his shock and surprise in the following words:
"But what was surprising to hear, even in 1991, was that the admiralty jurisdiction exercised by the High Courts in Indian Republic is still governed by the obsolete English Admiralty Courts Act, 1861 (referred hereinafter as 'the Act') applied by (English) Colonial Courts of Admiralty Act, 1890 (in brief 'the 1890 Act') and adopted by Colonial Courts of Admiralty (India) Act, 1891 (Act XVI of 1891). Yet there appeared no escape from it notwithstanding its unpleasant echo in ears.
The shock was still greater when it transpired that this state of affairs is due to lack of legislative exercise, even when in wake of decision of this Court in State of Madras v. C.G. Menon : AIR 1954 SC 517. that Article 372 of the Constitution cannot save this law because the grouping is repugnant to the concept of a 'sovereign democratic Republic.'
The Law Commission in its Fifth Report on British Statutes applicable to India went into detail on scope of Article 372 of the Constitution and observed that the British Statutes which were expressly applicable to India because India was a 'British possession' are still supposed to be applicable to India without any change in the context, therefore, it impressed upon the urgency as far as back as 1957 to enactment, own laws on the subject-matter of those statutes where it is necessary to do so and take legislative action making it clear that these statutes are no longer applicable to India."
Thommen, J. also emphasised1 the need for the codification of the law relating to admiralty jurisdiction, keeping in mind the International Conventions and Declarations. The learned Judge observed that the Law Commission of India should take up this matter.
1. JT 1992 (2) SC 65.
1.7. The broad effect of these developments is that in spite of India being a Republic under its own Constitution, the Indian courts continue to administer admiralty, shipping and maritime law in accordance with the English Common Law and the statute law enacted by the British Parliament and extended to the colonial India. Even though British Admiralty Law has undergone several radical changes, in India there has been no legislation to cover the entire held of admiralty, shipping and maritime law and the courts in India having admiralty jurisdiction are still following the English judicial precedents.
During the British Raj in India, three High Courts, Bombay, Calcutta and Madras exercised admiralty jurisdiction but after the promulgation of the Constitution, more High Courts have been established by the Constitution, the law with regard to their jurisdiction in admiralty matters is not clear. There is chaos and confusion regarding courts' jurisdiction. India has a sea coast of the length of approximately 5700 Kms. and the sub-continent is abutted in three directions by the sea.
It has 11 major ports and 163 minor ports and the shipping industry is carrying on maritime trade and business, to the extent of more than 40 million tonnes. India has liberalised its economy and it is entering the global economy, as a result, there would be spurt in international shipping and maritime business. The absence of maritime admiralty laws dealing with Courts jurisdiction is bound to hamper the shipping and maritime trade. There is, therefore, a pressing need to codify law with respect to maritime shipping and navigation, in accordance with the domestic need having regard to the relevant international conventions and treaties pertaining to laws of sea.
1.8. In view of the aforesaid developments, the Commission was of the opinion that even though the relevant administrative department has not considered it necessary to make any reference to it, there was an urgent need to consider the various aspects of Admiralty Jurisdiction. The Commission has, therefore, taken up, the subject suo mote to submit its report and recommendation to the Government for initiating legislative exercise to have Indian law relating to Admiralty Jurisdiction codified to cater to the expanding need of the maritime trade and shipping.
1.9. The Report is divided in four sections. Section I is introductory in nature which considers the historical development of admiralty jurisdiction in England and India. In section II, the Commission has considered the substantive aspects of admiralty jurisdiction with reference to international covenants. Section III discusses the issues with regard to the nature and scope of admiralty jurisdiction and establishment of admiralty courts; it also considers the steps which are to be taken for updating the law. Section IV contains the Law Commission's conclusions and recommendations. Annexure VIII to the Report contains a draft of the proposed Admiralty Act.