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Report No. 123

Law Commission of India
Working Paper

On

Decentralisation of Administration of Justice; Disputes Involving Centres of Higher Education

The task of devising and recommending judicial reforms for which a separate Commission was to be set up was later on assigned to the Law Commission with a request to give top priority to the same. Amongst the various terms of reference drawn up for the proposed Judicial Reforms Commission, the one with which the Law Commission is primarily concerned in this Working Paper leads as under: -

"1. The need for decentralisation of the system of administration of justice by

(i) establishing, extending and strengthening in rural areas the institution of 'Nyaya Panchayats' or other mechanisms for resolving disputes;

(ii) setting up of a system of participatory justice with defined jurisdiction and powers in suitable areas and centres; and

(iii) establishing other tiers of system within the judicial hierarchy to reduce the volume of work in the Supreme Court and the High Courts."

The choice may be dictated by term No. 2, which reads as under:-

"The matters for which Tribunals (excluding services Tribunals) as envisaged in Part XIVA of the Constitution need to be established expeditiously and various aspects related to their establishment and working."

2. The judicial system in this country is a highly centralised and integrated one from bottom to top. The constitutional power of issuing prerogative writs conferred on • the High Courts by Article 226 of the Constitution and on the Supreme Court of India by Article 32 of the Constitution has tended to make the High Court an institution in which all sorts of disputes converge. The High Courts, in charge of administration of civil and criminal justice, enjoy appellate and revisional jurisdiction under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1973, respectively. The High Courts also enjoy original jurisdiction under special statutes like the Companies Act, 1956, Patents Act, 1970, and Designs Act, 1911, etc.

It also enjoys advisory jurisdiction under various tax laws such as the Income-tax Act, 1961, the Gift Tax Act, 1958, the Wealth Tax Act, 1957, Customs Act, 1962, and the Central Excise and Salt Act, 1944. The decisions of all quasi-judicial tribunals are subject to judicial review by the High Court in exercise of constitutional power of issuing high prerogative writs. Even administrative decisions are subject to review within the narrow confines of jurisdiction as well as violation of fundamental rights. The fall-out of the various jurisdictions which the High Courts enjoy has been torrential inflow of work in the High Courts. The decisions of the High Courts are questioned before the Supreme Court in exercise of the jurisdiction conferred by Article 136 of the Constitution.

The mounting arrears in the High Courts is causing untold anxiety. As many as 13,23,719 cases were pending in the High Courts as on 30th June, 1985 and over 1,66,319 cases were pending in the Supreme Court of India as on December 31, 1985. Out of 13,23,719 cases pending in the High Courts, 2,32,492 cases were pending over five years and 32, 794 cases were pending over ten years.1 In fact, the unmanageable backlog of cases and the inordinate delay in the disposal of cases attracted the attention both of the suffering, litigating public and the Government of India. These two ugly features of the present day justice system have provoked a strident demand for judicial reforms.

1. Source: 31st Report of the Estimates Committee of Lok Sabha, pp. 39-40.

3. The Law Commission, on being requited to deal with the malaise in the administration of justice, concentrated its attention, first on the litigation emanating from rural areas. An extensive working paper was prepared and published by the Law Commission of India devising a participatory model of justice for disputes emanating from rural areas. After a national debate, a detailed report has been submitted in this behalf.

4. The Law Commission was of the tentative opinion that the centralised system of justice where every nature of dispute tends to land in the High Court, would never be able to meet the requirement of easily accessible, inexpensive, informal, expeditious justice. Some decentralisation was inevitable. One can take clue from Chapter XIVA of the Constitution introduced by the Constitution (Forty-second Amendment) Act, 1976. The object underlying introduction of Chapter XIVA in the Constitution was to empower the Parliament to enact a law for setting up tribunals for various special kinds of disputes. This power was acquired to achieve the avowed object of decentralisation of the system of administration of justice.

5. With a view to carrying the process of decentralisation a step further, the Law Commission recommended National Tax Court simultaneously removing the advisory jurisdiction of the High Courts. The Law Commission was further of the opinion that some more decentralisation would not only reduce the pressure on the High Courts and the Supreme Court of India, but would permit association of experts with tribunals set up for resolving disputes of a specialist nature. The twin objects behind this approach is not merely lightening the burden on the High Courts caused by torrential inflow of work from various tribunals, but also to achieve the object underlying Article 39A of the Constitution, namely, to provide equal opportunity in the matter of access to justice.

Such specialisation would inevitably reduce long-winding arguments and assist in expeditious disposal of causes and controversies which, in turn, would reduce the cost of litigation. While conferring extensive power of issuance of high prerogative writs on High Courts under Article 226 of the Constitution and all-enveloping superintendence over all courts and tribunals under Article 227 of the Constitution, it was assumed that a High Court Judge would be able to deal with not merely civil and criminal cases but also cases requiring such specialised knowledge as tax references, labour disputes, educational disputes, et el.

While it may be that the Judge of a High Court may, in course of time, develop capacity to deal with all kinds of specialist disputes, yet it cannot be gainsaid that in this process, long time would be spent in familiarising oneself with specialist knowledge. Further, there is a system of rotating judges in all branches in High Courts. Specialisation in this background is not possible. Inevitably, every time the bench is changed, even with regard to the same nature of the dispute, arguments will start over again and all available precedents will be cited ad infinitum.

6. In the old days, a Member of the Bar could accept any brief without any attempt at specialisation. But as the law became more complex, and the litigating techniques became more comprehensive and judicial approach acquired more scientific overtones and the precedents poured in, slowly specialisation appeared in the legal profession. However, it was assumed without justification that no specialisation is necessary for a High Court Judge. The recruitment to the High Court is from two known sources:-

(i) Elevation to the Bench from the Bar; and

(ii) Promotion from the rank of District Judge.

By the very nature of the jurisdiction enjoyed by a district judge, he has little or no opportunity to deal with constitutional matters, tax matters labour matters, and disputes involving corporate laws. It may be that, in course of time, he may acquire working knowledge of all these laws, but long time will be spent in becoming wholly familiar with the same. And during these formative years, he will be subjected to all sorts of arguments which, before a specialist, will have no place. Similarly, a Member of the Bar who has specialised in one branch will have to acquire knowledge of other branches. It is, therefore, undeniable that specialisation would certainly be conducive to better administration of justice helping in overall improvement of speedy disposal of causes and controversies which tend to reduce backlog of cases which is the bane of the present day administration of justice.

7. The next question, therefore, is how do we provide for specialisation? The Law Commission found a tentative answer in the decentralisation of the system at administration of justice. Imbued with this idea, the Law Commission submitted a comprehensive report dealing with setting up of National Tax Courts simultaneously abolishing jurisdiction of the High Courts. This will achieve decentralisation and grant a measure of relief to the High Courts. Carrying further this very process, the Law Commission issued a Working Paper and a questionnaire on January 27, 1987, for a debate in devising a forum for national uniformity in labour adjudication at a stage midway between the Labour Courts/ Industrial Tribunal at the base level and the Supreme Court of India at the apex, simultaneously abolishing the jurisdiction of the High Courts.

8. The approach as discussed in the just preceding paragraph was indicated by the introduction of Part XIVA in the Constitution by the Constitution (Forty-Second) Amendment Act, 1976 which enabled the appropriate Legislature to provide for the adjudication or trial by tribunals of any disputes complaints or offences, with respect to various matters enumerated therein.

In the Objects and Reasons accompanying the Bill, it was stated that "(t)o reduce the mounting arrears in the High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio-economic development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under Article 136 of the Constitution."

This envisages setting of tribunals with all-India jurisdiction for matters of special importance. Disputes involving universities would qualify for being considered matter of special importance. It would achieve the twin objects of specialist treatment speedy disposal, all-India outlook and decentralisation of judicial administration.

9. The present working paper accordingly concentrates on a new set of disputes requiring specialist knowledge to deal with, which have prominently figured in the High Courts in the last decade. Numerous disputes land in the High Courts involving the Universities on the one hand, and the alumni on the other, or between the Universities and the teaching staff as well as ministerial staff. Almost allied to the same are the disputes involving University and the Government in the matter of affiliation of colleges, autonomy of the University, financial independence of the Universities, appointment of Vice-Chancellors and similar disputes. Disputes in this behalf are of recent origin. But as years roll by, they tend to multiply.

10. The thrust for higher education is growing at an accelerated speed every year. As the demand for seats in institutions of technical learning such as engineering, medicine, agriculture, etc., is increasing, the area of conflict is widening. The situation becomes acute when the Government in discharge of its obligation under Article 15(4) of the Constitution reserves certain number of seats for socially and educationally backward classes of citizens or for the scheduled castes the scheduled tribes. Article 15(4) provides as under:-

"15(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."1

In order to give opportunity to the members of socially and educationally backward classes of citizens or members of the Scheduled Castes and Scheduled Tribes, to advance and intermingle with the mainstream of life, Government reserves certain percentage of seats in institutions of technical education and higher education is favour of members of such classes. To that extent, the seats available for entry on merit get reduced. The competition gets accentuated. Further, the number of seats in such institutions have not expanded or proliferated in relation the demand for such seats.

All these contribute to a keen tussle for acquiring seat in such institutions. This tussle more often leads to confrontation or court cases. Practically, for over the last ten years, admissions to medical and engineering colleges have landed in the High Courts and the Supreme Court of India. Frankly, the courts are ill-equipped to deal with these disputes expeditiously and with a sense of urgency. A brief resume of the important decisions of Supreme Court and High Court would bear out what is stated herein above.

1. Added by the Constitution (First Amendment) Act, 1951, section 2.

11. There are numerous decisions of the Supreme Court of India and High Courts bearing on the question of admissions to professional institutions, more especially the Engineering and Medical faculties. There are decisions also dealing with the policy of reservations in favour of the members of socially and educationally backward classes and Scheduled Castes and Scheduled Tribes. It is not proposed to discuss all the decisions in this working paper.

Only some will be referred to highlight the tentative approach of the Law Commission that disputes involving University Administration, admission to university courses, disciplinary proceedings against university teachers, cannot be dealt with effectively like the run-of-a-mill, small petty legal squabble, the decision in such disputes must be informed by the wider perspective of role of education in a development country, discipline in the formative years, future leadership and enthroning of values. If handled differently, it is likely to cause dislocation in the University Administration.

12. To begin with, a reference to one such case would be instructive. There were two vacancies in the cadre of Professor of Medicine in the State Medical Colleges in the State of U.P. As both the posts were within the purview of the State Public Service Commission, the Commission advertised posts inviting applications from eligible candidates, the eligibility criterion having been set out in the advertisement itself. The Public Service Commission selected two persons for the aforementioned two posts. The selection was challenged by one of the competing candidates inter alia contending that the selectees did not satisfy the eligibility criteria inasmuch as they lacked the requisite teaching experience, which was one of the minimum qualifications.

The matter was argued before a single Judge of the High Court who upheld this contention and the view of the learned Judge was affirmed in the appeal before the Division Bench in other words, three Judges of the High Court came to the conclusion that the selectees did not have the requisite teaching experience. Two appeals came to be preferred to the Supreme Court. Reversing the two decisions of the High Court, the Supreme Court observed that:

"When the selection is made by the Commission, aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing, teaching /research experience in technical subjects, the court, should be slow to interfere with the opinion expressed by the experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the courts to leave the decision on academic matters to experts who are more familiar with the problems they face than the courts generally can be. Undoubtedly, even such a body, if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the court in exercise of extraordinary jurisdiction to enforce Rule of Law, may interfere in a writ petition under Article 226 of the Constitution.

Even then, the court, while enforcing the Rule of Law, should give due weight to the opinions expressed by the experts and also show due regard to their recommendations on which the State Government acted. If the recommendations made by the body of experts, keeping in view the relevant rules and regulations, manifest due consideration of all the relevant factors, the court should be very slow to interfere with such recommendations."1

However, the courts, especially the High Courts and the Supreme Court of India, are flooded with disputes involving technical considerations and the courts entertain and occasionally interfere which disturbs the administration of the Universities. It may be pointed out here that universities are expected to be autonomous bodies set up under State statutes and are required to provide for planning of education, organisation of the body, staff requirements, direction and development of education and keeping in touch with the hitherto unexplored areas of performance, vigilance and co-ordination with other universities. It also must have its own management structure, forum for resolving problems arising out of affiliation of privately managed colleges, management of university departments its relations with the students and its relations with the State Government especially in the matter of financial autonomy.

Universities cannot be modelled for their internal management as well as to meet the expanding horizons of knowledge on profit-oriented corporate approach. The rapidly developing political and economic situation and trends in other countries have indicated that the university has also an obligation to the larger community in addition to its functions of teaching the young and conducting research2. If such is the role of universities, the disputes arising in the field of activities of the university cannot be adequately dealt with by purely legalistic approach generally visible in court rooms. Yet in the absence of a specialist forum, the disputes involving universities land in the courts.

1. Dr. M.C. Gupta v. Dr. Arun Kumar Gupta, (1999) 2 SCC 339.

2. Dr. A.H. Hommadi University Administration in Developing Countries.



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