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Report No. 124

4.21. It is therefore, recommended that written submissions, including the case law to be relied upon, must be submitted to the court within four weeks from the date the service is effected on the respondent and he has entered appearance. The respondent shall submit his written submissions within four weeks from the date of the receipt of the submissions of the appellant petitioner. A rejoinder must also be filed within two weeks thereafter.

The case will then be treated as ready for hearing. The written briefs must be circulated to the members constituting the Bench. They will specify the time allocated to each side in advance. No case should be heard maximum for full working hours in one day. This will effectively reduce the length of oral arguments and considerably save the time of the court so as to make it available for attending to larger number of cases.

4.22. There is a third limb of this fancy for oral arguments and that is citing of as many authorities as may possibly be available, applicability or otherwise notwithstanding. Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Consequently, every order of the Court even if not laying down any law is reported in the law reports.

To illustrate, one K. Duraiswamy1, who was convicted by the trail court for having committed offences under sections 451, 380, 201 and 149 of the Indian Penal Code and was sentenced to suffer R.I. for one year on each count, which conviction and sentence were confirmed by the High Court, filed a petition for special leave to the Supreme Court under Article 136 of the Constitution. It appears that special leave was granted confined to the question of sentence only. After hearing, the court noted in an order running into 14 lines that there is some room for reduction in the sentence of the appellant.

After noting the fact that the appellant was a Government Servant who would lose his service on account of his conviction as also his pensionary benefits', the sentence was reduced to sentence undergone, which was about 3 months and imposed a fine of Rs. 500. Without meaning any disrespect to the court, no question of law was involved in the appeal. Sentence is a matter left to the discretion of the trial court. Discretionary order can be interfered with if found to be manifestly perverse. No such finding is recorded. It is not for a moment questioned whether the court had power to do it or not.

But once the decision is reported-for what useful purpose, it is difficult to ascertain-the same will be relied upon in another case where the prayer is for reduction of sentence only. While discussing this aspect with a senior Judge of a High Court, it transpired that a sentence of R.I. for three years imposed by the trial court and confirmed by the High Court was reduced to two years and six months by the Supreme Court. The disposal of the case in this manner at any rate does not lay down any law. However, it is reported in the law reports.

It permits multiplication of authorities at a later date. The more the institution grows older, there will be more and more decisions and the tendency to multiply them at the time of arguments would become irresistible. And in the oral arguments, when precedents are relied upon, the head-notes are read, the relevant paragraphs are read, and it becomes an unending process.

Therefore, the second ugly feature of the oral arguments deserves to be circumscribed. It can be done by insisting upon the list of precedents being submitted, with the paragraphs relied upon, in advance to the court and any reference to it in the oral arguments must be wholly avoided. The court should not permit it.

1. K. Duraiswamy v. State of Tamil Nadu, AIR 1982 SC 51.

4.23. The combined effect of the recommendations herein made with reference to oral arguments would considerably save the Court's time and would reduce the length of hearing to minimum sparing the Court's valuable time for handling more cases.

4.24. Scrupulously avoiding any repetition about any of the recommendations made in the past relevant to the topic of this report, it may be mentioned that certain suggestions recently examined by various professional bodies relevant to reducing tire backlog have already been dealt with by the Law Commission since it started tackling the question of judicial reforms. A belief is gaining ground that some programme for skills development in decision-making process is desirable.

Australia has set up Australian Institute of Judicial Administration. New Zealand has been granted facility to take part in the activities of the Institute. The Judges of a generalist court like a High Court are constantly required to deal with issues arising out of subject-matter of which they have had little past experience because it did not form part of their own spheres of practice or simply did not exist when they were at the Bar.

The criticality of the situation will stare into the face when one recalls that specialisation in the Bar is an accepted reality. Such specialists, when selected from the Bar to man judicial assignments, would definitely need training in subject-matter outside-heir specialisation. This is, however, taken care of by recommending an academy for training of Judges and refresher courses and any further discussion is accordingly avoided here1

1. LCI, 117th Report on Training of Judicial Officers (1986).

4.25. The law, as it stands today, does not confer power on the court to compel parties either to go for arbitration or mediation. It can only be done with the consent of parties. One of the two parties is always interested in delaying the matter. To further delay the matter, there is a tendency to examine witnesses who are hardly necessary. The court cannot stop it unless it is prepared to record a reasoned order that the party is guilty of vexatious approach.

If the court can force parties to go to mediation or compulsory arbitration, one who is interested in delaying the matter by such tactics would be heaped with a heavy bill of costs. The wastage of court's time is not reflected in the bill of costs prepared in the courts. But if the matter is before a mediator or an arbitrator who will be paid according to his time, he will also assess who is responsible for prolixity in disposal of case and award costs accordingly. It is, therefore, necessary to arm High Courts and Supreme Court with power to compel parties to go for mediation or arbitration.

4.26. Order 41, Rule 1, Code of Civil Procedure, 1908, makes it obligatory for a litigant preferring an appeal against the judgment adverse to him to annex a copy of the decree appealed from (unless Appellate Court dispenses therewith) and the judgment on which it is founded. The period of limitation within which the appeal is to be preferred gets extended to the extent of the time lag between the date the copy of the decree is applied for and is made ready. Occasionally the delay is of such a long duration that the time to prefer appeals sets multiplied twice, thrice or, in rare cases, even ten times.

Experience shows that the copy of the decree is hardly relevant or necessary or even looked into for the purpose of deciding whether the appeal should or should not be admitted under Order 41, Rule 11. In the past, the Commission and Committees dealing with the Code of Civil Procedure and the procedure for hearing appeals in the High Courts have not chosen to do away with the provision requiring annexing of copy of decree to memo of appeal which has become anachronistic and is of doubtful utility.

The Law Commission is of the opinion that Order 41, Rule 1, should be so amended to read that annexing a certified copy of the decree to memorandum of appeal is not at all obligatory and the appeal can be filed by producing the operative part of the judgment accompanying the memo of appeal.

4.27. In the olden times when the litigation proceeded at a leisurely pace, it was assumed that ordinarily the matter in the 'High Court should be heard by a Division Bench consisting of at least two Judges. This approach was dictated by the fact that till the Supreme Court of India was set up on the advent of the Constitution, appeal against the decision of the High Court lay to the Privy Council and that was beyond the reach of 90 per cent of litigants coming to the High Courts. To avoid, therefore, any possibility of human error, it was assumed that two minds are better that one.

The situation has undergone a radical change. Now that the Supreme Court is here, anyone feeling aggrieved by the judgment of High Court has an opportunity to approach the Supreme Court under Article 136 of the Constitution. The Division Bench hearing is a luxury which can be ill-afforded for the reasons that follow. While on the civil side, district judge alone hears an appeal or a subordinate judge alone tries a suit of any pecuniary value, time of two judge of the High Court is spent in dealing with the same matter.

The Calcutta High Court which is the second best in matters of arrears still enjoys the luxury of hearing civil revision application by a Division Bench. On the criminal side, the magistrate alone tries the criminal case, so also the Sessions Judge. But the moment conviction results in a sentence of three years and upwards in some High Courts or seven years and upwards in some other High Courts or ten years and upwards in still some other High Courts, the appeal is required to be heard by a Division Bench.

It is now time to do away with this luxury. Having regard to the present situation, every matter in the High Court shall be heard by a single Judge except where the statute provides to the contrary. It is, therefore, recommended that the rules of the High Court with regard to strength of Benches relevant to the nature of the matter should be amended to provide for hearing by a single Judge every matter that comes to the High Court except where the statute provides to the contrary.

4.28. There was a suggestion for pre-trial procedures, an aspect which the Law Commission proposes to examine while dealing with urban litigation. To avoid duplication, it is not dealt with here.

4.29. To conclude, the Law Commission would merely take note of a new thinking but for experimentation. A question is being posed. Should the courts struggle, as it were, to retain civil work?' Slowly a thinking is developing that private parties having civil disputes must choose their own forum for resolution of disputes outside State courts. The Court system must be available where public law is violated and the society is likely to suffer by the violation.

Today, maximum private disputes have clogged the courts' dockets from the lowest to the highest. This is too radical an approach for which we have not attained maturity. One can rest content with the answer given to the question hereinabove posed by Mr. Justice Eichelbaum of the High Court of New Zealand.1 It may be extracted:

1. 61(9) (1987), Aust. LJ, p. 456.

"Any democracy worthy of the name must provide adequate means of dispute resolution. And while we have all become accustomed to think of the Westminster model as the ideal form of machinery, as Lord Devlin said in the Judge, the obligation of the State is to provide as many modes of trial as are necessary to cover the variety of disputes that may commonly arise, so that for each type there is available a process that will offer a reasonable standard of justice at reason and cost.

The precept of equal justice under the law for all, cannot be taken literally. What then may be the preferred modes of the future? One might develop small claims tribunals so as to enable them to deal with the majority of disputes between individuals; dispose of matrimonial litigation of most kinds administratively; recognise a good deal of work currently performed through the court system for the administrative regime it is, and extract it for processing elsewhere.

Major commercial litigants could be encouraged to resort to arbitration, with wider use of Court appointed arbitrators: that suggestion seems in harmony with the recent establishment of specialised centres for dispute resolution in Victoria and New South Wales. The court system proper would be left with a smaller proportion of civil work, including, however, the still burgeoning field of administrative law.

Proposals of this kind have dangers as well as attractions. Speedy, inexpensive, informal adjudication does not always equate to justice. No doubt it will generally be fair, at least in the palm tree sense; but lay adjudicators may substitute idiosyncratic notions of fairness for justice according to law. Is that a bad thing? One might argue that the result will equate with the law where the latter is fair; where the law does not meet current standards of fair play no harm is done by departing from it. But who then determines the law? What of the judicial oath to do right after the law and usages of the particular country?".



The High Court Arrears - A Fresh Look Back




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