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Report No. 124

1.6. As many as ten1 attempts have been made in the past by Commissions and Committees to tackle the problem of exploding court dockets in the High Courts. Numerous suggestions for improving the situation by amending substantive and procedural laws were made. Few have been implemented but majority put in deep freeze. Over a period, these recommendations are likely to be forgotten with an inevitable fall out of the new Committees/Commissions traversing the beaten track and largely reiterating or repeating the previous recommendations, the fresh ones meeting the same fate as the earlier ones.

In this background, it is not possible to effectively evaluate whether these recommendations, if implemented in entirety, would have solved the problem or at least made it manageable. The Commission would like to avoid the exercise of repeat performance. It was honestly and sincerely assumed that implementation of the previous recommendations would save the system and restore its dwindling dignity. Therefore, a summary of all relevant recommendations is set out in Appendix I.

1. Report of the High Court Arrears Committee, 1949; LCI, 14th Report on Reform of Judicial Administration (1958); LCI, 21st Report on Code of Civil Procedure, 1908 (1964); LCI, 41st Report on Code of Criminal Procedure, 1898 (1969); LCI, 54th Report of Code of Civil Procedure, 1908 (1973); LCI, 58th Report on Structure and Jurisdiction of the Higher Judiciary (1974); Report of High Court Arrears Committee, 1972; LCI, 19th Report on Delay and Arrears in High Courts and other Appellate Courts (1979); LCI, 99th Report on Oral and Written Arguments in the Higher Courts (1984); Satish Chandra's Committee Report, 1986.

1.7. Another view is that it is necessary simultaneously to have a comprehensive view of the vast jurisdiction of the High Court and examine whether any worthwhile curtailment can be made so as to assist the High Courts in discharge of their constitutional functions.

1.8. It must at once be conceded that when an attempt is being made to have a fresh look at the jurisdiction enjoyed by the High Court, the Law Commission is not writing on a clean slate. Numerous attempts have been made in the past to examine the structure of the High Court, its expansive jurisdiction, its inability to deal with matters coming before it expeditiously, the cost benefit structure and people's estimate of the working of the High Courts.

Numerous recommendations have been made so as to rejuvenate and revitalise the High Courts. To repeat those recommendations as part of this report would be idle parade of familiar knowledge. The Law Commission would certainly avoid any such repetitive effort which is generally considered platitudinous.

As pointed out in the just preceding paragraph, recommendations collated from all past reports are set out in the Appendix I, not as forming part of the recommendations of the present report but merely to enliven the memory of the Government about those recommendations, and to come to a conclusion whether it is going to implement them at not. Subject to those recommendations, the Law Commission would make a few recommendations for further strengthening the High Courts with a view to make them people and justice-oriented.

1.9. A brief review of the exercise till now undertaken by various bodies to make an in-depth study in the working of the High Courts, its structural format, its expansive jurisdiction and its worsening position year after year may be referred to here.

1.10. The earliest to which reference may be made is the High Court Arrears Committee, 1949. It is unnecessary to go into the recommendations made by it because the Law Commission extensively examined the recommendations of that body in its Fourteenth Report.

1.11. The next in point of time and first in its maximum importance is the report of the Law Commission of India in 1958.1 In Chapters VI and VII, working of the High Courts, its structure, format, procedure followed by it, its original and appellate and constitutional jurisdiction, the increase in the volume of its work, the expansion of its jurisdiction under various special statutes was examined in depth. The two principal conclusions it reached were that neither any change is necessary in the structure of the High Court nor any reduction or curtailment in its vast jurisdiction.

It took mte of the fact that the Judge strength of the High Court has not been regularly reviewed keeping in view the ever-rising graph of institution. It was of the opinion that many unsatisfactory appointments have been made to the High Courts on political, regional and communal or' other grounds with the result that the fittest men have not been appointed. This has resulted in diminution of the outrun of Judges.

In its view, an upward revision of the Judge strength of the High Court coupled with the expeditious appointment of competent persons and reducing the holidays in the High Court would, all in their cumulative effect, help in reducing the backlog and making the High Court free from the stress and strain of mounting arrears. It recommended abolition of letters patent appeals. It was in favour of retaining the original side of the High Court wherever it existed.

1. LCI, 14th Report on Reform of Judicial Administration (1958).

1.12. The Law Commission, dealing with the Code of Civil Procedure,1 opined against curtailment of the right of appeal but desired to put some restriction on the revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure. It did not feel that any curtailment of jurisdiction of the High Court was called for.

1. LCI, 11th Report on Code of Civil Procedure 1908 (1964).

1.13. The Law Commission reverted to the Code of Civil Procedure in the circumstances mentioned in the report.1 It took notice of the fact that appeals from appellate decrees (second appeals) are admitted too frequently, that there is some scope for circumscribing and thereby curtailing the right of second appeal by so amending section 100 of the Code of Civil Procedure, that an appeal will lie only on substantial question of law and that substantial question of law so involved be formulated and specified at the time of admission of the appeal and the appeal will be heard on the questions of law so specified.

Subsequent experience shows that the situation has hardly improved in the matter of admission of second appeals. Except this specific recommendation, certain peripheral changes were suggested in the procedure for hearing appeals. The question of effective curtailment of the appellate jurisdiction of the High Court was not tackled.

1. LCI, 54th Report on Code of Civil Procedure, 1908 (1973).

1.14. Being greatly concerned with the problem of accumulating arrears of cases in the various High Courts, the Government of India requested the then Chief Justice of India in April 1969 to consider the desirability of appointing a small Committee of Judges to go into the problem of arrears in all its aspects and to suggest remedial measures.

This Committee, known as Shah Committee, as it was presided over by the then Chief Justice of India who continued to chair the Committee even after his retirement, has extensively gone into the jurisdiction of the High Court, the causes for accumulation of work, the manifest inability to tackle the problem of arrears and all allied aspects of the matter Amongst the causes responsible for piling up of backlog of cases,
the Committee noticed population explosion, extraordinary resort to writ Jurisdiction of the High Court, investment of special jurisdiction in the High Court, such as, trial of election (petitions under the Representation of the People Act, 1951, with its concomitant that it should be disposed of within six months from the date of institution, et al,
Government of India had conducted a review of the state of work in each High Court and found that inadequacy of Judges was the main cause for accumulation of arrears in some of the High Courts, further compounded by delay in filling in of vacancies, yet it again reviewed the Judge strength of each High Court and recommended an upward revision, simultaneously pointing out the pitfalls that the attempt must be made to avoid unsatisfactory appointments.

It suggested certain procedural changes for reducing arrears. The Committee seriously considered curtailment of jurisdiction of the High Court and, noticing that the reference procedure under the tax laws is responsible for gross delay in disposal of cases in that branch of law, recommended substitution of that procedure by conferring a right of appeal against the decision of the Income Tax Appellate Tribunal to the High Court. It also recommended that the original jurisdiction of the High Court under Patents and Designs Act, Succession Act and Divorce Act should be replaced by an appellate jurisdiction, the original jurisdiction being conferred on the District Court, City Civil Court, as the case may be. It was in favour of setting up of Service Tribunals, which recommendation has now materialised by the enactment of Administrative Tribunals Act, 1985. However, in the absence of a recommendation for simultaneously eliminating the jurisdiction of the High Court. It was quite likely that the decision of the Service Tribunal would be questioned before the High Court under Article 226 of the Constitution, adding one more stage of litigation.1 The situation continued to deteriorate with an accelerated speed.

1. Report of High Court Arrears Committee, (1972).

1.15. The judicial system continuously getting over-burdened by the mounting arrears repeatedly attracted the attention of the Law Commission. In the year 1974, the Commission, after eulogizing the Supreme Court of India for making 'the concept of the Rule of Law relevant, coherent and staple in this country, could not shut its eyes to the problem of growing arrears in the administration of justice. It noticed that these arrears have now assumed a somewhat alarming dimension'.1

Accordingly, it undertook an exercise to revaluate the structure and jurisdiction of the higher judiciary which necessarily includes the institution of High Court. Leaving aside for the moment the recommendations relating to the Supreme Court of India, the Commission, while dealing with the High Court, reiterated the view with slight modification for substituting the procedure for reference under Indian Income-tax Act, 1961, by an appeal on a substantial question of law from the decision of the Income Tax Appellate Tribunal to the High Court, simultaneously rejecting the proposal for Central Tax Court.

A further appeal to the Supreme Court would lie against the decision of the High Court if the High Court certifies that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court. This is in tune with the amended Article 133 of the Constitution. A passing observation was also made that it would be worthwhile to create a machinery which would encourage and strengthen collective bargaining with a view to reducing the inflow of matters under the labour laws to the High Courts and the Supreme Court.

It opined against setting up of Service Tribunals as well as against creation of Zonal Courts of Appeal. It is here a germ for the first time of creating specialist Tribunals as alternatives to the High Court with a view to curtailing the jurisdiction of the High Court to control the inflow of work which may indirectly help in tackling the problem of arrears and backlog of cases.

1. LCI, 58th Report on Structure and Jurisdiction of the Higher Judiciary (1974).

1.16. Within a period of five years since the submission of the last-mentioned report, the Law Commission of India, consistent with its policy decision to keep under review the system of judicial administration to secure elimination of delay and speedy clearance of arrears in courts, focused its attention on 'Delay and arrears in High Courts and other appellate courts'.1 After reviewing the past attempts at tackling the problem and the situation as it presented to the Commissions at the relevant time, it then took notice of the litigation explosion in the high by the High Courts and its roots in history.

It further took notice of the litigation explosion in the High Courts since the advent of the Constitution. It then posed to itself the question which, according to it, had faced all Committees and Commissions investigating judicial delay: how to reconcile justice with speed, and what kind of measures to suggest for expediting disposal while maintaining the quality of justice.

Almost having been convinced that High Courts enjoy unmanageable jurisdiction, it still opined against curtailment of the right of appeal under the present scheme but suggested some peripheral changes in the procedure to be followed in the High Courts in hearing appeals. It reiterated the opposition against setting up of a Central Tax Court and did not express any opinion whether reference procedure under the Income-tax Act, 1961, should be replaced by an appeal over the decision of the Income-tax Appellate Tribunal to the High Court on a substantial question of law.

The Commission reiterated the earlier view that the vacancies should be expeditiously filled in and that the Judge strength of the High Court should be reviewed periodically and attempt should also be made to appoint ad hoc Judges to tackle the problem of arrears.

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



The High Court Arrears - A Fresh Look Back




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