Report No. 151
9.1. The question as to the designation of the courts that should be vested with admiralty jurisdiction is one of great importance. India is a large country with sea coast of the length of approximately 5700 kms. abutting it in the three directions except the north. It has always been having a vast extent of maritime traffic and trade and its history shows that many early empires and rulers encouraged international trade of various kinds of goods. In recent years, goods traffic into and out of India has increased so tremendously that there are at present 11 major ports and 163 minor ports in the country. The number of foreign flag vessels that visited major Indian ports for loading or unloading of goods in the past three years are as follows:
|Year||No. of Vessels|
Full information regarding the extent of loading and unloading of goods at minor ports is not readily available. The total tonnage of overseas trade carried by vessels carrying Indian flags during the last three years is as under:-
|(In million metric tonnes)|
The above statistics furnish a rough idea of the extent of India's shipping trade. With the recent liberalisation of Indian Laws regarding export and import, there is no doubt that these activities will receive greater spurt in the coming years. With the increase in the number of vessels plying, passenger travelling and goods carried between India and other countries, the magnitude of maritime claims, disputes and litigation is also bound to increase. It is, therefore, necessary to clearly define the Indian courts which will exercise jurisdiction in admiralty maritime matters.
9.2. The discussions contained in Chapters 2 and 3, ante, clearly shows that, by accident of history, maritime or admiralty jurisdiction was exercised, till India became independent, and even after it became a Sovereign republic, only by the High Courts of Madras, Bombay and Calcutta. With the reconstitution of the territories of the various States, this jurisdiction has also vested in the High Courts on which the jurisdiction of the above three High Courts developed as a result of territorial readjustrnents1.
To a large extent this position has got stabilized with the decision of the Supreme Court in the recent Elizabeth's case, JT 1992 (2) SC 65, but there may be some points of ambiguity as to which of these High Courts should exercise jurisdiction in such matters. Before, however, adverting to this aspect of the issue which needs clarification, it is necessary to deal with the totally different recommendation that has been made by the Praveen Singh Committee report.
As indicated earlier, that Committee has suggested that the admiralty jurisdiction should be taken away from the High Courts and should be vested in specially constituted Admiralty Courts with one Appellate Court empowered to hear appeals from their decision. This is a somewhat revolutionary suggestion, inspired by the recent trend of constitution of administrative tribunals2 which needs careful consideration and examination.
1. This would clearly include The High Courts of Andhra, Orissa, Gujarat and Kerala and perhaps some others also.
2. See Articles 323A and B of the Constitution. The Central Administrative Tribunal and the National Tax Tribunal, a proposal for the Constitution of which is under consideration, are examples of this trend.
9.3. It is first necessary to analyse and examine the reasons given by the Committee in support of its recommendation for the constitution of Admiralty Courts1. The Scheme envisaged by the Committee proceeds on the following lines:
(1) The present law vests admiralty jurisdiction only in the three High Courts of Madras, Bombay and Calcutta and there is divided opinion on the question whether these Courts can exercise effective jurisdiction in the absence of clear cut and precise provisions of the Admiralty Act itself.
(2) The admiralty jurisdiction of a Court cannot be restricted only to the territory where a court is located and should extend to the entire coast of India and inland waters as parties to maritime disputes are dispersed all over India.
(3) The exercise of admiralty jurisdiction and the application of the law relating to it is an exclusive specialty and it is necessary to develop adequate expertise in the specialised field. The present system under which the judge in whom admiralty jurisdiction is vested has also to deal with other litigation before the High Court, does not allow him sufficient time to concentrate on and acquire specialised knowledge in this field.
(4) Admiralty jurisdiction has international ramifications as the court has powers to arrest and even sell off the vessel involved whether it be an Indian or a foreign one. This not only makes expertise in the field of law a necessary desideratum; it also renders it necessary for the Central Government to constitute independent courts of admiralty and to ensure that maritime claims receive undivided attention of experts in their settlement. A maritime country like occurs an ill afford to live with an outdated law admittedly coming in the way of growth of our shipping industry on the desired lines.
(5) According to the Committee's assessment based on the experience of its members the High Courts ordinarily take not less than six years to dispose of an admiralty suit. The delay in civil courts are understood to be much greater. With the jurisdiction of the Admiralty Courts being made extensive as in U.K. and Singapore, India can become a centre of admiralty litigation which an also be the earner of valuable foreign exchange, only if the delays in courts are minimised.
(6) The Admiralty Courts to be constituted should in no way be inferior to the High Courts. The qualifications, experience and mode of appointment of the judges of these courts should be strictly in accordance with the provisions of the Constitution. For the appointment of judges of the High Courts, the format of the Central Administrative Tribunal Act, 1985 as interpreted by the Supreme Court.2 can be utilised.
(7) To avoid conflicting decisions the rules governing procedural matters in these courts should be made by the Central Government. Also the safeguards provided by the existing rules of the Bombay High Court can be incorporated in framing the rules.
(8) To avoid divergent decisions, in different Admiralty Courts, it is necessary to provide for an appeal to one Single Appeal Court of Admiralty from the decision of the Admiralty Courts at the first instance. No further appeals or revisions should be provided except that an appeal to the Supreme Court may be provided on questions of law, jurisdiction or issues of national or international importance, subject to a grant of Special Leave by the Supreme Court.
(9) The Central Government should prescribe different court fees and expenses but no such fees/expenses would be payable by crew of vessels.
1. A draft legislation for the constitution of such courts has also been prepared by the Committee, which is also annexed to this report.
2. Sampat Kumar's case AIR 1987 SC 386.
9.4. The Commission has considered the recommendation of the above Committee carefully in all its aspects and is unable to accept the suggestions of the Committee to delink admiralty jurisdiction from High Courts and vest it in Admiralty Courts. The Commission would like to enunciate first its broad views on the general issues involved in the recommendations and, then, take up for consideration the specific points made by the Committee.
9.5. It is true that, as an aftermath of the Constitution of India and the growing awareness of the common man regarding the rights and the legal remedies available to him, there has been an unprecedented explosion of litigation in the courts of the country and in particular in the High Courts. This coupled with the consequential problems of delay accentuated by frequent differences of opinion among the High Courts has prompted the Government to consider the possibility of an alternative forum for the citizen to air his grievances, particularly in areas of speciality.
The 42nd amendment to the Constitution gave legislative recognition to this line of thought by enacting Part XIVA in the Constitution comprising of Articles 323A and 323B and authorising the setting up of National or State Level Tribunals in place of Courts in regard to certain areas of administration. It is unnecessary to set out fully the provisions. Suffice it to say that the most important features of the legislation constituting a tribunal under either of these provisions are-
(a) that it may provide for the exclusion of the jurisdiction of all courts except that of the Supreme Court under Article 136 with respect to all or any of the matters falling within the jurisdiction of the said Tribunal; and
(b) that it may provide for the transfer to such tribunal of all cases which, at the time of its establishment, are pending before the courts or any other authorities in regard to the matters entrusted to the tribunal by the law in question.
The Parveen Singh Committee has, apparently, drawn inspiration from the afore said provisions as interpreted in Sampat 'Kumar's case, AIR 1987 SC 386, in making its recommendations. The Committee has, however, suggested the constitution of Admiralty Courts and not Admiralty Tribunals as envisaged in the above provisions1, perhaps because 'admiralty' is not one of the subjects with reference to which a tribunal can be constituted under either of the above provisions.
1. It would seen that the committee had not kept the distinction in mind.
9.6. (a) With regard to the proposal to constitute Admiralty Tribunals to the exclusion of High Courts' jurisdiction under Articles 226 and 227, an important question arises whether this is permissible under the existing provisions of the Constitution. We have referred to Articles 323(A) & (B) which confers powers on the appropriate legislatures to enact laws excluding the jurisdiction of the High Courts.
A close scrutiny of Articles 323(A) & (B) would make it clear that the former provides for setting up of administrative tribunals for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or a State or any local or any other authority.
Article 323(B) also confers power on the appropriate legislature to enact law for the adjudication or trial by tribunals of disputes, complaints or offences with respect to all or any of the matters specified in Clause (2) which refers to levy, collection and enforcement of tax, foreign exchange, import and export across customs frontiers, industrial and labour disputes, land reforms, ceiling on urban property, election to either Houses of Parliament or the House or either House of Legislature of States, production, procurement and supply and distribution of food stuff and other goods. By no stretch of imagination any law relating to admiralty jurisdiction would fall within the matters specified in Clause (2) of Article 323(B).
(b) Law with respect to admiralty jurisdiction falls within Entry Nos. 24, 25 and 95 of List I of the Seventh Schedule of the Constitution. Parliament has exclusive jurisdiction to enact law with respect to matters specified in these three Entries which would cover the entire admiralty jurisdiction. The matters specified in Entry Nos. 24, 25 and 95 of List I do not find place under Articles 323(A) or 323(B). There is, therefore, no escape from the conclusion that no tribunal for (A) or 323(B). There is, therefore, no escape from the conclusion that no tribunal for adjudicating the admiralty matters can be constituted to the exclusion of the High Courts' jurisdiction.
Moreover, there is a widespread feeling that Tribunals can be no good substitute for the High Courts. Some of the observations of the Supreme Court in R.K. Jath's case, (1993) 4 SCC 119, and the observations made by Ahmadi, J. in a recent address to the Ahmedabad Income-tax Bar Association1 gave expression to this feeling.
It has also recently been pointed out by the Andhra Pradesh High Court2 that the power of judicial review vested in the High Court under Articles 226 and 227 is a basic feature of the Constitution which cannot be taken away even by a constitutional amendment. The High Court in that case entertained a writ petition and interfered with the orders of the Administrative Tribunal. A Special Leave Petition has been filed in the Supreme Court and the matter has been referred to a large Bench for considering the whole issue.
These developments do indicate that it would not be proper or desirable to deny the power of judicial review to the High Court against the orders of the Admiralty Court or Tribunal as suggested by the Parveen Singh Committee. The suggestion for the constitution of admiralty courts instead of tribunals does not improve the situation either. Under Articles 226 and 227 of the Constitution all courts and tribunals are under the supervisory jurisdiction of the High Courts and their orders are subject to judicial review by the High Courts. Thus, even if admiralty courts are constituted their orders would be subject to judicial review by the High Courts.
(c) In the absence of any constitutional provision, neither Parliament nor State Legislatures have legislative competence to enact a law excluding the jurisdiction of the High Courts.
The Supreme Court has emphasised that admiralty jurisdiction, despite peculiarities of its origin and growth is, nevertheless, a part of the totality of jurisdiction vested in the High Court as a superior court of record. High Courts being Courts of unlimited jurisdiction and repository of all judicial power under the Constitution, except what is excluded, are competent to deal with admiralty matters. The Constitution does not confer any power on legislature to curtail the High Courts' admiralty jurisdiction. Therefore, the recommendations of the Parveen Singh Committee for excluding the High Courts' jurisdiction cannot be accepted.
1. JT 1994 (2) Journal section 1.
2. S. Hari Nath v. State of Andhra Pradesh, 1993 (3) Andh LT 471.
9.7. But, whether we call it a court or tribunal, such a body can be allowed to replace the existing jurisdiction of a High Court only for compelling reasons. The principal reason why tribunals have been thought of to replace the existing courts is that they provide a specialised body which can offer the attractions of special expertise ensuring speedy disposal. If a Tribunal is considered better in an area of taxation, it is because it is possible to constitute such a tribunal with a judicial member and an Accountant or Technical member.
The former of these is drawn from the higher subordinate judiciary, profession of lawyers and the legal service of the centre or State while the latter is drawn from the profession of accountants or high officers of the relevant Government department. This combination makes it possible to have a body which has special familiarity with and knowledge and expertise of tax laws. Likewise, in an administrative tribunal, the judicial members are judges, lawyers and legal men while the administrative members are drawn from higher ranks of the service who are expected to have gained first hand knowledge and experience in the administration of service rules and service jurisprudence.
Even these experiments have not been universally acclaimed and there is a strong opinion that the jurisdiction of Courts should not be taken away even in such matters1. In the area of admiralty law, unfortunately, there is no such specialised body that can be thought of. One would think that the lawyers specialising in this area are very few and they are unlikely to accept service of this kind. Indeed, even in the case of the other tribunals, it is found that the response from practising lawyers is very discouraging.
There is no other service which can contribute persons with special knowledge or experience in this field to man these courts. Indeed, even the Parveen Singh Committee has only suggested that the Admiralty Courts should be constituted in the same way as the High Courts. The requirements of the situation can be met by recruiting lawyers practising in this branch of the law, to the extent possible, to High Court benches rather than go in search of such personnel to constitute a number of admiralty courts. Except for the nomenclature, these would be no real improvement in the situation.
1. JT 1994 (2) Journal section 1.