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Report No. 136

5.3.3. The contours of the suggested solution are:

(1) When High Court "A" is faced with a problem pertaining to an all-India law (excluding the Constitution of India) on which High Court "B" has already made a pronouncement, if High Court "A" holds a view different or inconsistent from the view already pronounced by High Court "B", High Court "A", instead of making its own pronouncement, shall make a reference to the Supreme Court. The order of reference shall be accompanied by a reasoned opinion propounding its own view with particular specification of reasons for differing from the view pronounced by High Court "B".

(2) (a) The party supporting the reference may arrange for appearance in the Supreme Court but will not be obliged to do so.

(b) The said party will have the option of submitting written submissions supplementing the reasoning embodied in the order of reference.

(c) The party opposing the reference shall also have a similar option for engaging an advocate in the Supreme Court and submitting written submissions, inter alia, to counter the written submissions, if any, submitted by the other side.

(3) The Supreme Court may require the Government of the State in which the High Courts "A" and "B" are situated to appoint at the State's cost any advocate from the State panel of lawyers of the concerned States to support by oral arguments the viewpoints of the respective High Courts.

(4) All such references may be assigned to a Special Bench which may endeavour to dispose of all such references within six months of the receipt of the references in the Supreme Court in view of the inherent urgency to ensure uniformity.

(5) If any SLP or appeal is already pending on the same point from judgment of High Court "B" or any other High Court, the said matter may be clubbed alongwith the reference. Any interested party may be permitted to appear as interveners.

(6) The Supreme Court may return the reference if it appears that the parties are acting in collusion.

(7) The Attorney-General may be served with a copy of the reference and he shall be entitled to urge the point of view of the Central Government in regard to the relevant provision of the concerned Central Statute, if so desired.

(8) The referring High Court shall finally dispose of the appeal on all points in the light of the decision of the Supreme Court in regard to the referred point.

(9) The decision of the Supreme Court in the reference will have no impact or effect on the decision of High Court "B" in the event of the Supreme Court upholding the reference in case it has become final between the parties by reason of the matter not having been carried to the Supreme Court and the said decision shall remain undisturbed as between the parties in High Court "B".

5.3.4. In order to give effect to the aforesaid recommendation, a suitable legislation may have to be enacted. A draft of the suggested legislation has been appended for the sake of facilitating the task.

5.3.5. The First Recommendation, if and when accepted, will result in removal of the existing conflict and disharmony in some areas of law forthwith, and in other areas of law, in course of time, in a phased manner. In the result, the evident injustice occasioned to citizens by denial of equal treatment under the identical provision of an identical all-India law, will be remedied. The Second Recommendation, if and when implemented, it is hoped, will result in nipping in the very bud such conflicts in the future. And the citizens will be protected from deprival of equality of treatment under the very same law.



Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back




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