Report No. 54
Delay caused by stay orders
1B.29. The chronology of litigation under the Code is, in its bare essentials, fairly simple. But it gets clogged by a variety of hindrances. Examples of such hindrances are furnished, at the stage of trial of a suit, by appeals and revisions against what have come to be known as 'interlocutory orders'. At the stage of execution, obstacles abound owing to stay orders obtained on one ground or another by taking recourse to miscellaneous appeals or appeals from orders or revisional applications. To minimise the delay caused by such obstacles, we are recommending certain amendments in the relevant rules.1 We hope, that they will advance the cause of expedition, without undue hardship to litigants.
1. (a) Order 41, rule 5;
(b) Order 21, rule 26;
(c) Order 39, rule 1.
1B.30. In one of the Chapters appearing towards the end of our Report we have thought it necessary to discuss the problem of training our junior judicial officers and to make some important and radical suggestions in that behalf. We ought to add that, though the subject-matter of this Chapter is technically outside the scope of our present inquiry and report, we are satisfied that it is our duty with all the emphasis we can command, to earnestly appeal to the Union Government to request the State Governments to take immediate and suitable action in terms of our recommendations.
We are quite clear in our minds that the terms of service under which junior judicial officers are employed and the fringe benefits and general amenities which are made available to them are wholly unsatisfactory and meagre to a degree, and that they need to be immediately improved if competent and capable lawyers have to be attracted to the judicial career. It must be borne in mind that the work which these junior judicial officers discharge in their respective courts in small taluk towns is, in substance the foundation of what is described as the Rule of Law. As Justice Holmes once observed, the basis of the rule of law is laid down not necessarily in important and sensational constitutional cases, but in small and humble disputes between litigants who bring their causes to the courts.
1. See Chapter 53.
1B.31. For efficient, satisfactory and expeditious administration of justice which would command public confidence and enjoy public respect, an enlightened, speedy, fair and progressive procedure is no doubt, essential; and that is what we have attempted to do in our present report. But procedure alone will not solve the problem of accumulating arrears which have assumed alarming proportions in all the courts in our country. Procedure can hope to succeed in attacking this problem, provided the Judges who preside over the courts are conscious of their obligations to the community at large and exercise their powers and discharge their functions determined to remove from the administration of justice the widely spread and somewhat justified complaint of delay, costs and unpredictability.
It is our confident belief that, in the context of today, and having regard to the hopes and aspirations of the common men and women in this country, the judiciary can no longer be content to play merely the role of an umpire and allow the adversary character of our litigation to proceed uninterrupted by the wise and judicious interventions from the judges from time to time. Since, in our view, the junior judiciary has to play a major role in the conduct of the causes which are filed before them, we think it is of utmost importance to initiate them into the philosophy of law and its major role in relation to the changing society. Besides, it is hardly necessary to emphasise that, in course of time, District Judges and some of the High Court Judges are drawn from this class of junior judicial officers. That is why we have set out our thoughts in the last chapter and made recommendations which we think might serve the purpose we have in mind.
1B.32. "Training" has been described1. as the "process of developing skills, habits, knowledge and attitudes in employees for the purpose of increasing the effectiveness of employees in their present positions, as well as preparing employees for future Government positions". Judicial officers have responsible and varied functions to perform, and should receive adequate training before they enter on their office. We have not in mind merely the inculcation of professional skill and knowledge. Training must also aim at broadening the mental horizons, values and attitudes2 of the officers, by instilling the right mental attitudes on the question of judicial conduct. This becomes relevant because the judge holds a pivotal position, and has a vast variety of discretionary functions which are vital in the effective working of the law as an instrument of social justice.
1. William G. Torpey Public Personnel Management, New York, (D. Van Nostrand Company, Inc.) (1953), p. 154.
2. Cf. H.V. Kamath Principles and Techniques of Administration, Bharatiya Vidya Bhavan, Bombay, (1971), p. 19.
1B.33. In every organisation, the training of employees, which sets the tone and quality of the organisation, is useful. It is more so in a career service,1 with opportunities for successive promotions to higher grades.
1. Avasthi and Maheshwari Public Administration, (1966), Chapter 17, Education and Training, pp. 311-315.
1B.34. The detailed recommendations on the subject1 will show that when we speak of "training" we do not have in mind the organisation of mere lectures. What we have in mind is the introduction of judicial training at the initial stage. Case studies on particular events in the life of litigation, which illustrate typical situations, would be eminently suitable, because "a generalised understanding must emerge from experience of the particular."2
1. See Chapter 53.
2. C.M. Chadwick Administrative Training: Notes of Syllabus. Journal of Administration Overseas (London), Vol. 5, No. 3, July 1966, pp. 167-176, Abstracted in Indian Institute of Public Administration, New Delhi, Public Administration Abstracts (January 1967), PP- 5-6.