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Report No. 124

Chapter IV

Suggestions in Unexplored Region

4.1. Numerous suggestions in the past have been made by Commission and Committees to tackle the problem of arrears in the High Courts. They have been tabulated as set out in Appendix I. Unless departed from by the suggestion running counter to the one already made or where the suggestion herein made and one on the same subject in the past cannot co-exist, all the earlier suggestions are not departed from in this report. They may be dealt with a view to exploring the possibility of remedying the situation as it existed till 1979.

However, where the recommendations suggestions made in this report run counter to the one already made, the Commission suggests that the recommendation herein made should be implemented as the earlier ones have hardly helped in solving the problem. The Law Commission when it submitted its report in 1979, itself was sceptic of the outcome if the recommendations made were implemented for solving the problem of arrears for all times to come.

The Commission frankly stated that it has no illusion and would prefer to be little sceptic till the implementation of the recommendations. According to it, the search for a permanent solution to the problem would be futile. In human history, in the long run, there are no solutions-only problems. The search for a solution must, therefore, be a continuous process. It is a quest, not a discovery'.1 The present report is one more dip in the bottomless pit of arrears.

1. LC1, 79th Report on Delay and Arrears in High Courts and Other Appellate Courts (1979).

4.2. Conceding that numerous suggestions have been made in the past, there is hardly an area where a fresh approach can be introduced. However, the experience of the working of the High Courts reveals grey areas where a fresh approach may be effective. These may be said to be unexplored areas which may now be explored.

4.3. One of the fundamental assumptions on which the internal management of the High Courts rests is that the court management is the exclusive responsibility of the Judges and the focal point of power is the Chief Justice.1 He fixes Benches, appoints staff, regulates the assignment of work, deals with seniority, and promotion of the staff of the High Court and corresponds on behalf of the High Court with other governmental agencies.

In short he is the centre of power on the managerial side of the High Court. Undoubtedly, every Chief Justice requests some Judges to help him in administration while dealing with the subordinate courts. But that is a matter of his discretion. If he finds time and has energy enough to deal with the problem, he is not under any legal or constitutional obligation to seek the assistance of his colleagues to work as administrative Judges except where the Constitution provides for consultation with the High Court.2

1. The Constitution of India, Article 229.

2. Id., Articles 233 and 235.

4.4. The other important limb of the administration of justice is the legal profession. In an adversarial system, the legal profession has a vital role to play in the administration of justice. And the administration of justice, to be effective, must be so organised as to cast a responsibility on both the limbs, namely, the Judges and the legal profession. In short, High Court management should be regarded as a joint responsibility Administration of the court system is increasingly perceived as partnership between administrators which, in Indian condition, would be Judges and the legal profession.

4.5. In justification of the suggestion, some recent events may be noticed. There is a recurrent phenomenon of strike by the legal profession paralysing the court work, heaping insufferable hardship on the litigating public. It appears as if the two limbs concerned with the administration of justice in an adversorial system have not only ceased to be partners sharing any joint responsibility or a common concern but they have almost developed a confrontation.

Something somewhere happens in this vast sub-continent and the lawyers resort to strike paralysing the work in the courts and the grievance for which the strike is resorted to is not remediable by the institution of court which necessarily includes Judges. There is no fora for joint deliberations for tackling problems arising in the administration of the court system where a dialogue may help in resolving the problems which would smoothen the working in the court.

The institution of courts is neither for the Judges nor for the legal profession but for the litigating public who seek resolution of their disputes through the court system. Judges and members of the legal profession are to assist in resolution of disputes for the orderly development of society. If these vital and inseparable limbs of administration of court system stand in confrontation with each other, the system comes to a standstill.

It is conceded that where grey areas of disputes are likely to arise by partners working for the realisation of a common aim, a deliberative body must be set up for providing a fora for meeting, appreciating each other's point of view and arriving at consensus so as to avoid conflict and confrontation.

This is vitally needed in India today when withdrawal by the members of the legal profession from court work by resorting to strike even without prior notice, picketing with a view to prohibiting dissenting members from entering courts, obstructing secret ballot to decide whether to continue the boycott of courts or otherwise and a vocal minority imposing its decision on silent and suffering majority has become recurrent.

4.6. Very recently, in New Zealand, following a unanimous recommendation of the Judges of the High Court, there has recently been established a Courts Consultative Committee, chaired by the Chief Justice and comprising Judges, Law Society nominees, officers of the Justice Department, the Solicitor-General and lay representation.1

1. 'Winds of Change in the Court house' by Hon. Mrs. justice Eichelbaum, 61(9) (1987) Aust. LJ, p. 544.

4.7. Accordingly, every High Court will set up Courts Consultative Committee to be chaired by the Chief Justice of the High Court and comprising three seniormost Judges where the Judge strength of the High Court exceeds ten and in other cases Chief Justice and the next seniormost Judge, Advocate-General, the Minister of Justice by whatever name called of the State Government, the President and Secretary of the High Court Bar Association, a nominee of the Bar Council of the State from amongst the members of the State Bar Council and three representatives of litigating public to be nominated by the Chief Justice of the High Court.

All problems save and except those concerned with the appointment of Judges and arising in the administration of court system may be brought before this Committee which would try to resolve the same.

4.8. The membership of the Committee should be for a period of three years. The meeting of the Committee may be convened by the Chief Justice: but on the request of any two members of the Committee, it shall be convened within a period of one week from the date of the receipt of the request.

4.9. Minutes of the deliberations of the Committee may be maintained by the Registrar of the High Court who will be the convenor of the Committee. All the decisions shall be taken by the democratic process, meaning thereby, by majority of the members present and voting but attempt should always be to arrive at a consensus.

4.10. Such a Committee should as well be appointed at the Supreme Court level with this difference that instead of nominee of the Bar Council of the State, there shall be a nominee of the Bar Council of India and, instead of the Minister of Justice of the State, the Minister of Justice of the Government of India, and instead of Advocate-General of the State, the Attorney-General would be the member.

The High Court Arrears - A Fresh Look Back

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