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Report No. 54

Exercise of judicial discretion

53.30. Yet another subject which should be included is the exercise of judicial discretion in several branches of litigation. (A trainee could of course, be allowed to choose one of them1).

1. E.g. Sentencing, or family law, or equitable relief.

53.31. For example, there are several factors to be taken as guides for the exercise of the discretion to grant matrimonial relief; (a) the position and interest of the children; (b) the interest of the party with whom the petitioner has committed adultery (where relief is claimed on that ground), with special regard to their future marriage; (c) the prospects of reconciliation; (d) the interests of the petitioner, particularly his prospects of re-marriage; (e) the interest of the community at large, balancing the sanctity of marriage against social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down1.

1. Cf. Blunt v. Blunt, 1943 AC 517 (Lord Simon, L.C.).

53.32. Similarly, there is sufficient scope for the exercise of discretion in the field of equitable relief and also in regard to the award of costs and (in criminal cases) in the grant of bail and sentencing.

Duration of the course

53.33. We now come to the duration of the course. In our opinion, the total duration of the course should be one year; during the first three months, the probationers will undergo intensive course of training in the well-arranged curriculum; in the next six months they will be attached to the respective trial courts in their states, where they will gather experience about the working of the courts; and, in the last three months, they will once again be in the Institute, where they will receive training in the shape of lectures, seminars and group discussions. At the end of the year, the probationers will appear for an examination, and it is only on passing the examination that they will be confirmed and posted to the respective courts.

Conference to be held periodically

53.34. We also recommend that conferences should be held periodically, to supplement the training which we have recommended.

Question of expenses

53.35. We are fully conscious that our recommendation to start an All-India Institute will involve expenditure and we anticipate that an objection may be raised on this ground; but, we would like to emphasise the fact that Government have always thought it necessary to train their administrative officers in order that the general administration of the country should be efficient and for that purpose, administrative training centre, properly manned with a good curriculum and a well-planned programme of the education of the probationers, has been in existence for many years. We are surprised that it did not occur to the Government so long to train judicial members who enter judicial service on lines especially suited for judicial work.

We are, therefore, confident that the recommendations we have made will be accepted by the Union Government and that the Union Government will be able to persuade the State Governments to give their cooperation in implementing our recommendations, without any delay. As we have indicated in the course of our discussion', the establishment of an All-India Institute of this character for the training of judicial officers will indirectly but inevitably contribute to national integration. We also feel that it will create an espirit de corps amongst our junior judicial officers throughout India and we wish to emphasis that these espirit de corps and the sense of national integration reinforced with the sense of idealism and a spirit of service will inevitably lead to a considerable improvement in the quality of administration of justice.

The Code of Civil Procedure, 1908 Back

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