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Report No. 92

1.2. Working Paper and comments received thereon.-

We may state that on deciding to take up the subject, we had circulated to interested persons and bodies1 a Working Paper on the subject inviting comments thereon by the 15th June, 1983. The Working Paper had been circulated to the Secretary, Legislative Department, Government of India, all State Governments, all High Courts, the Attorney-General of India, Bar Associations and other interested persons and bodies. The Commission is grateful to all those who have been good enough to send their comments. Comments have been received from six High Courts2, one Advocate General3, four State Governments4, and one Registrar of a High Court, who has forwarded his personal view5.

As regards the six High Courts, it should be mentioned that while in the case of five, the replies represent the reaction of the High Courts, as such, in one case, the view of one Judge (agreeing with the proposal) has been communicated and seven other Judges6 have no views to offer, while the rest of the Judges of that High Court have expressed no reaction. As regards the remaining five High Courts, one has comments to make7, three agree with the proposal put in the Working Paper for enacting suitable legislation empowering High Courts to award damages in applications for judicial review8, one High Court, while agreeing with the proposal in the Working Paper, puts forth the suggestion that in implementing the proposal, the following three aspects may be kept in view:-

(a) the basis on which damages can be awarded, particularly where no evidence is taken;

(b) whether, where the award of damages is refused, the remedy by way of suit will be barred or not;

(c) whether, in such matters, service of notice under section 80, Code of Civil Procedure, 1908 will be necessary9.

We are happy to note that this High Court has specifically dealt with the mode of implementing the proposal of the Law Commission. Its view is-"Such power can be conferred either by amending Article 226 of the Constitution, or by enacting a separate legislation by the Parliament"10. The Advocate-General of one State has expressed agreement in general with the Commission's proposal11, but has added that the proposed power to grant damages should be exercised very sparingly and only where very gross and unjust behaviour is involved and where no inquiry into disputed facts is involved. Of the State Governments that have sent replies, three12 are against the proposal, while one13 agrees with it. The three who are opposed express an opinion that the High Court's burden might increase. The one that favours the proposal emphasises that it will avoid long drawn out litigation in another forum.

One Registrar of a High Court14, expressing his personal view, states that Articles 32 and 226 are wide enough and provide for award of damages where a fundamental right is violated. He further makes the suggestion that District Judges be also invested with writ jurisdiction. Before proceeding to a consideration of the various issues, we may states here that the apprehension expressed in some comments about disputed questions of fact should disappear, once it is borne in mind that our recommendations15 do not contemplate that the High Court must, in every application for judicial review, also go into damages. As regards the query raised with reference to section 80, C.P.C. we may mention that it is going to be our16 emphatic recommendation that section 80 should be repealed.

1. Working Paper circulated on 22nd April, 1983.

2. Law Commission File No. F.2(8)/83-L.C., S. Nos. 1, 2, 3, 6, 11 and 12.

3. Law Commission File No. F.2(8)/83-L.C., S. No. 7.

4. Law Commission File No. F.2(8)/83-L.C., S. Nos. 5, 8, 9, 10.

5. Law Commission File No. F.2(8)/83-L.C., S. No. 4.

6. Law Commission File No. F.2(8)/83-L.C., S. No. 6.

7. Law Commission File No. F.2(8)/83-L.C., S. No. 1.

8. Law Commission File No. F.2(8)/83-L.C., S. Nos. 2, 3, 11.

9. Law Commission File No. F.2(8)/83-L.C., S. No. 12.

10. Law Commission File No. F.2(8)/83-L.C., S. No. 12.

11. Law Commission File No. F.2(8)/83-L.C., S. No. 7.

12. Law Commission File No. F.2(8)/83-L.C., S. Nos. 5, 8, 9.

13. Law Commission File No. F.2(8)/83-L.C., S. No. 10.

14. File No. F. 2(8)/83-L.C., S. No. 4.

15. Chapter 3, infra.

16. Chapter 3, infra.

Damage in Applications for Judicial Review - Recommendations for Legislation Back

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