Report No. 124

The High Court Arrears-A Fresh Look

Chapter I

Introduction

1.1. The Law Commission, in pursuance of the task assigned to it to study justice delivery system in order to find out what ails it and, after the diagnostic exercise is over, to recommend remedies so as to fundamentally reform the system to make it operational with a view to promoting, on a basis of equal opportunity, so as to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, focussed its attention to the foundation of the pyramidic structure of the system at present in vogue.

Major part of the litigation which reaches the upper echelons of judicial hierarchy emanates from rural areas. Accordingly, the Law Commission examined the structure of the court system in rural and semi-urban areas and recommended its restructuring to provide a new model or mechanism for resolving disputes.

The principle of participatory justice was the essential feature of the new model.1 This approach also necessitated the need for decentralisation of the system of administration of justice by establishing other tiers or systems within the judicial hierarchy to reduce the volume of work in the Supreme Court and the High Courts. The relevant terms of reference in this behalf read as under :-

1. LCI, Report on Gram Nyayalaya, (1986).

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

(i).............................;

(ii)............................;

(iii) establishing other tiers or systems within the judicial hierarchy to reduce the volume of work in the Supreme Court and the High Courts. 2. The matters for which Tribunals (excluding service Tribunals) as envisaged in Part XIVA of the Constitution need to be established expeditiously and various aspects related to their establishment and working."

1.2. A superficial view of the aforequoted terms of reference may indicate that the Law Commission is merely concerned with finding out the inlets through which work flows into the High Courts and the Supreme Court and think of diversification as envisaged by Part XIVA of the Constitution with a view to providing a bottleneck in the inflow of work so that the court dockets evidencing litigation explosion may become manageable. This view may exclude from the purview of examination a radical restructuring of the High Courts and even of the Supreme Court.

1.3. Even with trenchant criticism of the justice delivery system in general and of the failure of the High Courts to dispose of matters coming before it expeditiously in particular, it cannot be gain said that the High Courts and the Supreme Court still enjoy considerable respect and affinity amongst the litigants and the intelligentsia. A suggestion for a radical restructuring of the High Courts and the Supreme Court is likely to meet with sustained and vehement opposition.

It would be unwise to ignore the sustained opposition to a proposal for Constitutional Division within the Supreme Court.1 Therefore, attempts should first be made to have a view of the plenitude of the jurisdiction of the High Court and recall the recommendations made for improving the working in the High Courts and ascertain whether the drastic remedy of curtailing the jurisdiction of the High Court is unavoidable.

1. LCI, 95th Report (1984).

1.4. At the outset, an overview of the present jurisdiction enjoyed by the High Courts will permit an assessment of the enormity of the task assigned to the High Court. The High Courts enjoy civil as well as criminal, ordinary as well as extraordinary, and general as well as special jurisdiction. The source of the jurisdiction is the Constitution, and the various statutes as well as letters patent and other instruments constituting the High Courts. The High Courts in the country enjoy an original jurisdiction in respect of testamentary, matrimonial and guardianship matters.

Original jurisdiction is conferred on the High Court under the Representation of the People Act, 1951, Companies Act, 1956, and several other special statutes. The High Courts, being courts of record, have the power to punish for its contempt as well as contempt of its subordinate courts.1 The High Courts enjoy extraordinary jurisdiction under Articles 226 and 227 of the Constitution enabling it to issue prerogative writs, such as, the one in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.

Over and above this, the High Courts of Bombay, Calcutta, Delhi, Himachal Pradesh, Jammu and Kashmir and Madras also exercise ordinary original civil jurisdiction. The High Courts also enjoy advisory jurisdiction, as evidenced by section 256 of the Indian Companies Act, 1956, section 27 of the Wealth Tax Act, 1957, section 26 of Gift Tax Act, 1958, and section 18 of Companies (Profits) Surtax Act, 1964. Similarly, there are parallel provisions conferring advisory jurisdiction on the High Courts, such as, section 130 of Customs Act, 1962, and section 354 of Central Excises and Salt Act, 1944.

The High Courts have also enjoyed jurisdiction under the Indian Divorce Act, 1869, and the Parsi Marriage and Divorce Act, 1936. Different types of litigation coming before the High Court in exercise of its wide jurisdiction bear different names. The vast area of jurisdiction can be appreciated by reference to those names, viz.,

(a) first appeals;

(b) appeals under the letters patent;

(c) second appeals;

(d) revision petitions;

(e) criminal appeals;

(f) criminal revisions;

(g) civil and criminal references;

(h) writ petitions;

(i) writ appeals;

(j) references under direct and indirect tax laws;

(k) matters arising under the Sales Tax Act;

(l) election petitions under the Representation of the People Act;

(m) petitions under the Companies Act, Banking Companies Act and other Special Acts; and

(n) wherever the High Court has original jurisdiction, suits and other proceedings in exercise of that jurisdiction.

This varied jurisdiction has to some extent been responsible for a very heavy institution of matters in the High Courts. The Table hereunder2 will explain the rising crescendo of institutions, disposals and pendency in the High Court:-

Year	Institutions	Disposals	Pending
1982	6,63,183	5,51,785	9,76,781
1983	6,71,195	5,40,357	11,09,188
1984	7,07,91	5,75,451	12,51,945
1985	7,31,543	6,05,698	13,77,790

1. The Constitution of India, Article 215.

2. Sources: Annual Report for the years 1986-87 of the Government of India, Ministry of Law and Justice, p. 35.

The upward swing in pendency has become relentless as would become evident from the latest figures1 available in this respect.

Please see Table below:-

S. No.		High Court		Pendency	As on
(A)	1.	Patna		56904	31-12-1985
	2.	Rajasthan		48921	31-12-1985,
			Total	1,05,825
(B)	1.	Allahabad		2,88,060	30-6-1986
	2.	Kerala		1,20,890	30-6-1986
			Total	4,08,950
(C)	1.	Madras		1,87,250	31-12-1986
	2.	Calcutta		1,56,447	31-12-1986
	3.	Karnataka		66741	31-12-1986
	4.	Madhya Pradesh		53888	31-12-1986
	5.	Gauhati		17880	31-12-1986
	6.	Himachal Pradesh		8820	31-12-1986
			Total	4,91,026
(D)	1.	Bombay		1,33,245	30-6-1987
	2.	Andhra Pradesh		86137	30-6-1987
	3.	Delhi		77191	30-6-1987
	4.	Punjab & Haryana		53568	30-6-1987
	5.	Gujarat		52623	30-6-1987
	6.	Orissa		37854	30-6-1987
	7.	Jammu & Kashmir		35945	30-6-1987
	8.	Sikkim		36	30-6-1987
			Total	4,76,599
Grand Total (A+B+C+D)				14,82,400

1. Source: Answer to Lok Sabha Unstarred Question No. 1793, dated November 18, 1987.

1.5. The grim situation is further compounded by the fact that there is inordinate delay in filling in the existing vacancies in the High Courts. The Estimates Committee of the Parliament, focusing the attention on the pendency of cases in the Supreme Court and High Courts, noticed that there were 69 vacancies (as on 3-2-1986) of Judges in various High Courts lying unfilled and expressed an opinion that if the situation is not considerably improved or allowed to continue, the same could be interpreted as deliberate denial of speedy and less costly justice to the litigants.

The Committee also expressed an opinion that ways and means have to be found out to replace the present procedure for appointment of Judges if it results in inordinate delay in their selection and appointment.1

1. Thirty-first Report of the Estimates Committee, (1985-86), p. 19.