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Report No. 123

Chapter VI

The Approach

6.1. Since the British consolidated their hold over India, in order to complete their conquest they introduced numerous institutions in this country modelled on parallel institutions in U.K. One such field in which the entire English model was planted was legal justice system in India. Numerous laws were enacted, most of which were copybook reproduction of the statute on the same subject as in U.K. Once the laws were enacted in this manner, the machinery for enforcement of laws as also forum for resolution of disputes arising by the enforcement of laws followed in the wake of the legal system.

The justice system in this country was almost a replica of British courts. It is unnecessary to go into the parallelism save and except saying that the British model of court of justice was a State-appointed Judge in a court set up by the State exercising state judicial power. Appellate forums were created more or less on the lines of U.K. Court of Appeal and the Privy Council fulfilled the role of the House of Lords for the appeals from colonies. This model made almost a compelling necessity of following British precedents without question.

6.2. Since the advent of independence till today, with minor variations the same models are operating. There are State courts at the grass-root level. There are district courts enjoying original as well as appellate jurisdiction. There are High Courts at State level having both original and appellate jurisdiction and the Supreme Court is at the apex of judicial pyramid.

6.3. It is universally accepted that this system has become dysfunctional, ineffective and is unable to deliver goods. This situation has been analysed threadbare by the present Law Commission in its first report.1 Therefore, the Law Commission was in search of a new model. The search for the model had to satisfy primarily two objects for which the Law Commission was asked to recommend judicial reforms. The first and important one was to introduce decentralisation in the monolithic administration of justice.

Secondly, to devise participatory models wherever it is possible. The Law Commission accordingly devised a participatory model which is fully set out in its reports2 The grounds and the ,reasons which appealed to the Law Commission to recommend such a participatory model simultaneously introducing decentralisation in the administration will mutatis mutandis apply here and therefore, it would be idle parade of familiar knowledge to recapitulate them here.

1. LCI, 114th Report.

2. LCI, 114th and 122nd Reports.

6.4. Briefly stated, the approach of the Law Commission is that where specialist knowledge is a pre-requisite in resolution of disputes arising in a certain area, the forum for resolution of disputes must not be monolithic, State set up judicial courts but a participatory model wherein specialists having requisite knowledge of the nature of the disputes arising in that field may interact with judicial personnel in the resolution of disputes. Experts' association would make available their expertise in the resolution of disputes. And by that very fact, the resolution of disputes could be expeditious and effective. The Law Commission, having examined various suggestions made to it in the debate, is fully convinced that disputes which arise in the field of education do require specialist knowledge for their resolution.

It is further convinced that such disputes be excluded from the jurisdiction of generalist courts, including the High Court. Let it be stated clearly, specifically and confidently that by and large there was unanimous support, including the one from the Association of Indian Universities, a body representing all the universities of the county, for such a participatory model. The divergence of opinion is on the question of the constitution of the forum; not the model. In other words, there was near unanimity that the forum for resolution of disputes arising in the field of education must be participatory in character. There was equal unanimity in opinion that once such a forum is devised, the jurisdiction of generalist courts, including that of the High Courts, should be excluded.

6.5. The approach must also indicate the direction and specify the method by which the Government of India can, if so minded, implement the recommendations made herein. This report is a link in a chain of reports submitted by the Law Commission in fulfilment of its assignment of recommending comprehensive judicial reforms. In the debate, it was pointed out that subject of 'education' is generally dealt with by States and in the absence of the topic of 'education' in Article 323B, the Central Government would not have power to undertake any legislation to set up the educational tribunal envisaged in this report and recommended as part of it.

Indisputably, Article 323B, which enumerates the topics on which appropriate Legislature may, by law, provide for adjudication or trial by tribunals of any disputes, complaints or offences, does not specify 'education' as one such topic. After pointing out this aspect, it was asserted that even if the Law Commission were to recommend setting up such a tribunal, the Union Government to which it submits its report would be, in the absence of power, incapacitated from implementing the recommendations in the report and that the report would be an exercise in futility.

6.6. The task of recommending exhaustive and comprehensive judicial reforms for saving the justice system from utter collapse has been assigned to the Law Commission. The primary aim of this report is to take one more step in the direction of recommending judicial reforms. The Terms of Reference for Studying Judicial Reforms assigned to the Law Commission specify that the Commission may suggest other tiers or systems within the judicial hierarchy to reduce the volume of work in the Supreme Court and High Courts and with this end in view may recommend the matters for which Tribunals as envisaged in Part XIVA of the Constitution need to be established expeditiously. Judicial reforms aim at reforming the system of administration of justice. Prior to the enactment of the Constitution (Forty-second Amendment) Act, 1976, which came into force on January 3, 1977, entry 3 in the State List read as under:-

"Administration of justice: constitution and organisation of all courts except the Supreme Court and the High Court, officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court."

Since the amendment, the words "administration of justice constitution and organisation of all courts except the Supreme Court and the High Court" were omitted. Simultaneously, effective from the same date, by the same amendment Act, entry 11A was introduced in the Concurrent List which reads as under:-

"Administration of justice; constitution and organisation of all courts except the Supreme Court and the High Courts".

Again, entry 11 in the State List prior to the aforementioned constitutional amendment read as under:-

"Education, including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III".

Since the amendment, entry 11 in the State List has been omitted and entry 25 in the Concurrent List, which prior to the amendment provided for only 'vocational and technical training of labour', has been re-enacted as under:-

"Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I".

The original topic 'vocational and technical training of labour' is retained.

6.7. Having referred to the entries, let it be pointed out that if the Parliament desires to enact a law which, in pith and substance, deals with the administration of justice in its various manifestations, entry 11A would clothe Parliament with power to enact such a law. The matter does not rest here. If the educational tribunal herein recommended in respect of disputes in which universities are involved apart from other educational institutions and primarily deals with the topic of education, the subject being in the Concurrent List.

Parliament will be competent to enact the law dealing with the topic of resolution of disputes arising in the field of education in discharge of its obligation to provide for administration of justice. Briefly, a combined reading of entry 11A and the amended entry 25 in the Concurrent List would unquestionably clothe Parliament with power to enact the legislation for setting up the tribunals dealt with and recommended by this report. In this view of the matter, the absence of the topic of 'education' in Article 323B is of no consequence.



Decentralisation of Administration of Justice - Disputes Involving Centres of Higher Education Back




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