Report No. 151
9.8. Apart from a need to ensure a specialised body, a requirement which, as we have indicated, is not likely to be fulfilled here-the justification postulated for delinking any special branch of litigation from the courts (High Courts) is the huge pendency and delay on the part of the High Courts in disposing of the regular and normal litigation before it. The Commission is of the opinion that no data have been made available for considering such ground to exist. The statistics referred to by the Committee1 are incomplete and refer only to the position in one of the High Courts, viz., the Bombay High Court2.
These figures are3 so insignificant compared to the total pendency in the various courts that they do not warrant any such serious apprehension as to justify taking away the jurisdiction from the High Courts. On the question of delay, one has to take note of the fact that, in maritime matters, a certain amount of delay is inevitable in view of the fact that the parties interested in any one litigation may be many and that very often service is required to be effected on foreign nationals and companies, a process which takes time.
That apart, even the Committee has suggested one tier of appeal as of right under its scheme and it is not conducive to quick disposal. The truth appears to be that, up to now, no special attention has so far been paid to devise way and means of expeditious disposal of admiralty matters. A special effort and concentration on disposal of this type of litigation is bound to hasten matters and there is no reason to believe that the existing difficulties are insurmountable. Indeed the suggestion of the Committee that it will be sufficient to have four admiralty courts in India4 is a clear give a way which indicates that the problem of magnitude and delay is not a very serious one in this branch of the law.
1. In para. 13 of its report.
2. The Committee says that "the number of suits filed under the maritime law with the various civil courts are far greater" but, with Admiralty jurisdiction presently vested only in three High Courts it is not clear what the Committee here refers to.
3. Both the numbers and amounts referred to. More recent figures are, unfortunately, not readily available.
4. Para. 16 of the Report.
9.9. It is true that, in certain branches of law, difference of judicial opinion between several High Courts stands in the way of an early settlement of the law and the creation of a single body might be helpful in obviating difference of opinion and sorting them out itself by creation of large benches. But this is a criticism based on a fundamental misapprehension. The system of administering justice we have under our Constitution, contemplates a hierarchy of courts. There is, therefore, bound to be some conflict of opinion between courts and this cannot be helped.
India being a vast country, having several States and eighteen High Courts administering same laws and also different laws, are bound to have different views on different matters. This is inherent in a federal structure and there is no way to eliminate conflict of decisions altogether. Rather, we are of the view that conflict of decisions is desirable at certain times as though that process the law has developed and progressed to meet the needs of the society and that would be so particularly in the branch of admiralty jurisdiction which is yet to develop in our country. That apart, the Commission does not think that this problem has assumed any such dimensions at all in admiralty matters.
The fact that in the 57 years that have lapsed since the Government of India Act, 1935, no such difference of opinion seems to have occurred which was considered worthwhile to be brought up to the Federal or Supreme Court shows that this apprehension is more theoretical than practical. It may be that, with the passage of time, the problems of pendency and conflict of opinion may assume larger proportions and may have to be tackled by appropriate measures. The commission is of the view that, for the present at least, these are not of such magnitude as to take away the jurisdiction of the High Courts in these matters.
9.10. On the contrary, there are compelling reasons why the High Court's jurisdiction should be retained. In the first place, this is a field in which it was considered necessary, even in the last century, to vest jurisdiction only in the High Courts1. Secondly, the jurisprudence in this area is yet to develop, and precedents of other countries, customary practice2 of the sea and international conventions which have the force of law in practice3 need to be interpreted authoritatively and the High Courts' primacy in achieving this object cannot be denied.
Thirdly, the arm of the courts' jurisdiction in these areas is long and powerful. It can arrest, detain, impound and sell vessels and property belonging to nationals of various parts of the world. As the Committee has pointed out, it is in the nature of an international jurisdiction and it should be dealt with by a well established judicial body which has a status in the country's Constitution and in the eyes of foreign nationals as well. This indeed should be a paramount consideration for a decision in favour of retaining the jurisdiction of the High Courts in admiralty matters.
1. Initially, it may have been because the ships and ship owners belonged to the U.K. and they desired to safeguard their interests. But, on second thoughts, it will be realised that it is also prudent.
2. See, for example, the observations of Kochu Thomman, J. in para. 91 JT 1992 (2) SC 65 (105), extracted earlier.
9.11. There is also another aspect of the present pendency in admiralty matters that calls for consideration. It has been pointed out earlier that the figures of pendency in the Bombay High Court give no cause for alarm. That apart, there is simple way of reducing the impact of these factors. At present only some of the High Courts exercise jurisdiction in admiralty matters. As pointed out by the Committee itself the admiralty jurisdiction of the court cannot be restricted only to the territory where it is located but should extend to the entire coast of India and its inland, waters.
On the basis that admiralty jurisdiction is vested in all the High Courts of India having original jurisdiction and that the jurisdiction is not restricted only to the territory of the state where the High Court is located, a provision may be engrafted enabling the Supreme Court, suo motu or on application, to transfer any admiralty suit from one High Court to any other in the country for such reasons at it may consider appropriate after hearing the parties. Even the existing litigation in three High Courts can be distributed over all the Indian High Courts and can be disposed of much more expeditiously than at present.
9.12. In the above discussion the points adverted to in the Parveen Singh Committee Report have already been dealt with and we do not consider it necessary to discuss it further by referring to each point again separately. The Commission is, therefore, of the opinion that existing admiralty jurisdiction should continue with all the High Courts.
9.13. The High Courts will be dealing with the admiralty jurisdiction as in the case of company and testamentary and other matters, on its original side. Generally the original jurisdiction in company and testamentary matters is exercised by a single judge of the High Court and appeals against his orders and judgments lie to a Division Bench of the Court. This should also be the position in admiralty matters. This will meet the need of having an appellate forum, adverted to by the Parveen Singh Committee.
9.14. The Parveen Singh Committee expressed an apprehension that due to congestion of cases in the nigh Court, perhaps, it may not be able to deal with the admiralty matters expeditiously. As already discussed, there is no doubt some explosion of litigation in the High Courts and there is delay in disposal of cases but that by itself does not justify an attempt to divest the High Courts of the admiralty jurisdiction at least for the present, especially in the absence of full statistics regarding the pendency of arrears in this jurisdiction. The Commission is, therefore, of the opinion that for the present the High Courts should continue to exercise admiralty jurisdiction exclusively.
If it is found later on, that the volume of work is so large that the High Courts are not able to cope up with the work, the Central Government may, in consultation with the Chief Justice of India and the concerned High Court take steps to empower the Principal Civil Court of the relevant District to exercise such powers in exercise of admiralty jurisdiction as may be considered necessary having regard to the circumstances then prevailing. In such an event, an appeal against the order of the admiralty court would lie to High Court both on facts and on law. But, for the present, we are firmly of the opinion that the High Court should exclusively exercise admiralty jurisdiction. In the proposed draft legislation, necessary provisions on the above lines have been made.
9.15. So far we have been discussing the admiralty jurisdiction in civil matters. Criminal jurisdiction in admiralty offences is governed by different considerations. Section 4 of the Indian Penal Code1, makes it possible for an ordinary Court in India to try, in the normal exercise of its jurisdiction any offence committed by an Indian citizen in any place within or outside India. It also authorises the prosecution and trial in India of any person for an offence committed on any ship or aircraft registered in India irrespective of the location of the aircraft at the time of the crime. This jurisdiction is based on the principle that a ship registered in India is, in law, a floating island representing Indian territory.
This general jurisdiction apart, certain statutes also confer jurisdiction on Indian court regarding "Admiralty Offences". The Admiralty Offences (Colonial) Act, 18492, which enabled the authorities and courts in a British colony to try offences committed on seas or water-ways where the Admiral has jurisdiction were made applicable to India as it then was, by the Admiralty Jurisdiction (India) Act, 18603 with the proviso that any person in India or brought to India accused of these offences could claim that he should be tried only by the Supreme Court of the Presidency in question4. These provisions continue to be operative in India.
1. The Indian Penal Code (Act No. XLV of 1860), section 4.
2. The Admiralty Offences (Colonial) Act, 1849 (12 & 13 Vict., C. 96).
3. The Admiralty Jurisdiction (India) Act, 1860 (23 & 24 Vict., C. 88), section 1.
4. Id., section 2.
9.16. It appears that the Merchant Shipping Act, 1894 of the United Kingdom also made such offences triable in England as well as in India by ordinary criminal court. Sections 684 to 687 of the said Act are relevant in this context. But they need not be elaborately set out here since the British Merchant Shipping Act has been repealed in its application to India by our Merchant Shipping Act, 1958.1 This Act contains a number of provisions regarding the offences under the Act2 but there is none corresponding to sections 684 and 687 of the British Act set out earlier.
1. The Merchant Shipping Act, 1958, section 461(2) and Part II of the Schedule thereto.
2. Id., section 436.
9.17. It is clear that the applicability of the Admiralty Offences (Colonial) Act of 1849 and The Admiralty Jurisdiction (India) Act, 1860 to India should be repealed. Those legislations were enacted at a time when India was a British possession. Their continued application to India even after its independence and its constitution as a Republic is derogatory to the sovereignty of India. These two Acts have, therefore, to be repealed with immediate effect.
9.18. The question, however, reminds whether we should enact some provisions corresponding to those contained in the above enactments to facilitate the apprehension, prosecution, trial and punishment of persons who are guilty of offences in India or in places beyond the territorial jurisdiction of India. We have considered this question and we are of opinion that it is unnecessary to re-enact the above provisions as the situations envisaged by them are fully covered by the provisions of sections 3 and 4 of the Indian Penal Code read with section 188 of the Code of Criminal Procedure.
The position thus will be that, while civil admiralty matters can be dealt with by the High Court exclusively, unless and until provision is made enabling other courts to deal with such matters, but criminal offences committed on the high seas and navigable waters will be subject to the ordinary law of the land.