Report No. 122

Chapter IV

Approach and Justification

4.1. The Law Commission was required to study measures for judicial reforms and make recommendations, inter alia, on the need for decentralisation of the system of administration of justice by setting up of a system of participatory justice with defined jurisdiction and powers in suitable areas and centres; and establishing other tiers or systems within the judicial hierarchy to reduce the volume of work in the Supreme Court and the High Courts. This twin objective set out in the Terms of Reference in the Context of studying Judicial Reforms must influence, and has considerably influenced, our approach.

4.2. On the question of participatory justice, the present Law Commission has given cogent, convincing and extensive reasons for modelling justice system on participatory basis. In the Report on Gram Nyayalaya1, while recommending a novel body for resolution of disputes emanating from rural areas, the Commission extensively examined the need for replacing the existing model of State courts by a forum manned by lay justices catering to the need of participatory justice. Panch system, both at regional and caste level, had the trappings of participatory justice.

There is a tribe called Nandiwala with a habitat on the South-Eastern Border of Maharashtra. It is a Scheduled Tribe. Like the Greek City States, the whole community constitutes into a body to render justice. The deliberations are guided by one who is called Guru, an outsider. The entire tribe participates in resolving disputes arising between the members of the tribe brought before it. Where the entire tribe participates in resolving a dispute, it is the most ideal model of participatory justice. But practical consideration outweigh the ideal.

Therefore, many local areas had their regional Panch and some castes had also their caste Panch. The Law Commission is not unaware of the tyranny of caste Panch. At present, only its feature of participatory justice is being taken note of Magna Carta included a demand for Peer's justice. If the Judge is not some black robed elite but a man of his own level of his locality, aware of his own traditions, talking in 'his own language, he would inspire greater confidence in the litigant.

Under the imperial rulers, the entire justice system underwent a transformation and the judicial power of the State came to be exercised by State courts. It was a non-participatory model. Slowly and imperceptibly, while this non-participatory model introduced an aura of outward respectability, it failed to generate the confidence in consumers of justice. This non-participatory model over a course of time became very formal, legalistic, professionally manned, dilatory, technical and prolix.

Its rigid rules of procedure, its deliberations in a foreign language and its highly technical approach rendered justice illusory. A yawning chasm developed between those who have to render justice and the consumer of the system. Therefore, participatory justice with many of its advantages already discussed in earlier reports has guided the deliberations of this Commission and virtually dictated the course. As pointed out, even the Terms of Reference require the Law Commission to recommend setting up of a system of participatory justice with defined jurisdiction and powers in suitable areas and centres.

1. LCI, 114th Report, Chapter III.

4.3. The second object influencing the approach of the Commission in this behalf is to introduce decentralisation in the system of administration of justice. There are two distinct advantages of decentralisation of the system of administration of justice. To briefly mention them, they are specialist courts in contra-distinction to generalist courts, and consequent expeditious disposal of cases and controversies coming up before the Tribunals manned by specialists.

4.4. Industrial disputes, in the interest of the parties concerned, the society at large and the public, must be disposed of as expeditiously as possible. Adjudication of industrial disputes is quasi-judicial in character. While some legal formulations would certainly enter the adjudicator's verdict, by and large industrial adjudication requires the approach guided by consideration of socioeconomic justice in its extended meaning.

The industrial adjudicator has to keep in view the Directive Principles of State Policy which require him to so mould his decision as to be able to effectively enforce the Directive Principles of State Policy relating to socio-economic justice and elimination of inequality in status and income. The approach is dictated by constitutional goals and objects.

Anyone enjoying the power of industrial adjudication must have adequate knowledge of, apart from other things, norms of socio-economic justice, industrial relations, economic planning and allied subjects. One need not be dyed in the wool in legal formulation to be an accomplished and efficient adjudicator. Depending upon the technological advancement of the concerned industry in which the dispute has arisen, the adjudicator may have to acquire knowledge of technology or may have to seek assistance of assessors who may be well-versed in the subject.

4.5. If, therefore, a body for industrial adjudication can be devised in which, apart from those conversant with legal norms and formulations, there are other participants who are well-versed in economic planning, industrial relations, norms of socio-economic justice and allied subjects, not only the ideal of participatory justice would be achieved but this inter-action amongst such adjudicators would certainly help in expeditiously resolving the industrial disputes. Therefore, labour adjudication is an area in which system of participatory justice with defined jurisdiction and powers can be effectively introduced.

4.6. The second object sought to be achieved by this approach is to provide for a tier or system within judicial hierarchy, which would certainly include quasi-judicial hierarchy, to reduce volume of work in the Supreme Court and the High Courts.

4.7. Article 226 of the Constitution confers power on the High Court, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories direction, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III or for any other purpose.

Article 227 confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Article 227 has been so interpreted as to confer on the High Court the power of judicial review over the decisions of the tribunals functioning in the State for which the High Court is set up.

In the absence of an intermediate appellate forum, against almost all the awards of the Industrial Tribunal and the orders of the Labour Court which are not subject to appeal under any State statute, writ petitions are always filed in the High Court clogging up the work in the High Court. Pendency as on 31-12-1985 of matters under labour laws High Court-wise is tabulated in Appendix V. Compared with the information supplied by Ministry of Justice, the pendency is higher as per statement attached to Appendix V.

4.8. Article 32 of the Constitution confers jurisdiction on the Supreme Court to issue directions, orders or all prerogative writs for the enforcement of any of the rights conferred by Part III of the Constitution. Article 136 confers jurisdiction on the Supreme Court to grant special leave to appeal against any judgment, decree, determination, sentence or order passed by a tribunal in the territory of India. Thus, all the awards of the tribunal can directly be questioned in the Supreme Court by a petition for special leave to appeal. And numerous matters are filed in this manner (Appendix III).

4.9. After the High Court decides the matter, a petition for special leave. to appeal against the decision of the High Court can be filed in the Supreme Court under Article 136. As pointed out earlier, an appeal is admitted by the Supreme Court as a matter of right where it is pointed out that there is a conflict amongst decisions of various High Courts or two High Courts have differed on the same point. Conflict in approach in dealing with labour matters amongst High Courts is not unknown.

4.10. Article 323B in Part XIV A of the Constitution confers powers on the appropriate Legislature, by law, to provide for adjudication or trial by tribunals of any disputes, complaints or offences with respect to all or any of the matters specified in clause (2), which, inter alia, includes industrial and labour disputes. Entry 11A in the Concurrent List reads:

'Administration of justice'; constitution and organisation of all courts, except the Supreme Court and the High Courts. Entry 22 in the Concurrent List reads : 'Trade unions; industrial and labour disputes'. Entry 11 A, read with entry 22 in the Concurrent List would enable the Parliament to enact a law for setting up of a tribunal as contemplated by Article 323B(2)(c) for adjudicating industrial disputes, both with original as well as appellate jurisdiction.

If such a tribunal is set up having jurisdiction at an all-India level, it will develop an all-India perspective. Its decision could be questioned under Article 136 before the Supreme Court only. In order to avoid the unfortunate experience of an omission while setting up the Labour Appellate Tribunal, the law setting up a tribunal, as herein conceived, must also simultaneously provide for excluding the jurisdiction of all courts, including the High Courts, except the jurisdiction of the Supreme Court under Article 136 with respect to all or any of the matters falling within the jurisdiction of such tribunal as contemplated by Article 323B(3)(d).

Once the tribunal, as herein conceived, is set up, it will provide for a forum for participatory justice in an area where it is sorely needed and simultaneously it will bring in the missing all-India perspective and would certainly reduce the volume of work considerably, in the High Court and proportionately in the Supreme Court. These objects have influenced and guided the approach of the Law Commission in devising such a forum.