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Report No. 124

1.17. As no perceptible change was visible in the situation, Government of India constituted an informal Committee consisting of three Chief Justices of three different High Courts to examine the problem of arrears and to suggest remedial measures. The Committee submitted its report specifically emphasizing the fact that the Judge strength in the High Court is inadequate, that there is inordinate delay in filling in vacancies and that these are the two principal causes which have contributed to the piling up of arrears in High Courts. It recommended certain peripheral changes in the matter of appointment to the High Court.

It recommended abolition of second appeal where the subject-matter of the original suit does not exceed Rs. 10,000. It recommended amendment of section 115 of the Code of Civil Procedure conferring revisional jurisdiction on the High Court in tune with section 3 of the Code of Civil Procedure (U.P. Amendment) Act, 1978.

It recommended abolition of the letters patent appeal. It was of the view that ad hoc Judges be appointed to deal with election petitions under the Representation of the People Act, 1951. It was of the firm view that the ordinary original civil jurisdiction enjoyed by the High Courts of Delhi, Calcutta, Bombay, Madras, Himachal Pradesh and Jammu & Kashmir be abolished. There were certain other peripheral recommendations dealing with the jurisdiction of the High Courts.1

1. Satish Chandra Committee (1986), p. 192.

1.18. An incidental report made by the Law Commission in April 1984 may be briefly referred to.1" It recommended that the parties must be called upon to file written briefs in the High Courts in relation to first appeals, capital cases and other complex cases coming before the High Courts and to curtail oral arguments to a minimum. According to the Commission, it would save time which would enable the Judges to deal with the arrears.

1. LCI, 99th Report on Oral and Written Arguments in the Higher Courts (1984).

1.19. This is a brief review of the past efforts and attempts made by Committees and Commissions to tackle the rising crescendo of arrears in courts imposing an unbearable burden on the justice system consequently impairing the efficiency and diminishing the respect and credibility of the system in the minds of consumers of justice (litigants).

1.20. The present Law Commission, having been assigned the task to study judicial reforms, was specifically asked to draw up a feasibility report 'on establishing tiers or systems within the judicial hierarchy to reduce the volume of work in the Supreme Court and the High Courts'.

The present Commission, having carefully studied all the past reports, analysed and evaluated the recommendations, made an enquiry about their implementation as best as one could make, looked at the present depressing and distressing situation of arrears and backlogs in High Courts and the Supreme Court and posed to itself the first question whether any cosmetic changes are at all likely to improve the situation.

Having regard to the past attempts and consistent with its broadly stated approach as set out in its first report, it came to an affirmative conclusion that not only radical restructuring of the courts from the grass-root level is necessary which itself would provide a regulatory mechanism in the inflow of work to the High Courts and then reaching the Supreme Court, but also to have a close look at the vast jurisdiction enjoyed by the High Court and then to have a second look at the hitherto holistic view that the jurisdiction enjoyed by the High Court is a holy cow.

Keeping in view the experience gained all the over the world that the generalist courts have to some extent yield their place to specialist courts tribunals, simultaneously effectively curtailing the jurisdiction of the generalist courts, that is the High Courts. To take only one illustration in Australia, New tribunals outside the established courts have been created to administer these areas. Administrative Appeal Tribunals, Arbitration Tribunals, Workers' Compensation Tribunals, Pension Tribunals, Planning Appeal Tribunal Equal Opportunity Tribunals', to name a few.

This activity of creating tribunals is founded on a belief that: 'the established courts are too remote, too legalistic, too expensive and, above all too slow.1 Unless, therefore, the jurisdiction of the High Court is substantially curtailed, simultaneously providing effective forum for juridical review enjoyed by the High Courts, the situation, by cosmetic peripheral changes, is not likely to improve and the situation which was once considered 'alarming'2 can now be described as catastrophic, crisis ridden, almost unmanageable, imposing such an immeasurable burden on the system as led the former Chief Justice of India warning that 'the system is about to crash'.3

An exercise that was always shunned was the trimming of the jurisdiction of the High Court due to a deeprooted regard for the High Courts till the dawn of independence because Privy Council was a distant dream situated at such a distance as almost to be inaccessible. But the visible deep malaise needs a drastic remedy for saving the system and to refurbish it with the dignity which it once enjoyed in the past.

1. The Hon. Sir Francis Burt, Chief Justice of the Supreme Court of Western Australia, The Moving Finger or the Irremovable Digit, 61(9) Aust LJ (1987), p. 468.

2. See para 1.15, supra.

3. Speech by Hon'ble Justice P. N. Bhagwati, former C.J.I., on 26th November, 1986, at Law Day function in the Supreme Court of India.

1.21. The High Court is at the apex of the State Judicial apparatus. Each State will have a High Court.1 Each High Court is invested with constitutional power to issue prerogative writs.2 Each High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.3

Every High Court is invested with control over all subordinate courts in the State and this control has become very pervasive and expansive by judicial decisions.4 The system of both civil and criminal justice provides for either an appeal or a revision to the High Court depending upon the nature of civil disputes, the jurisdiction of the trial court as well as the level of the court at which the criminal case is tried.

Accordingly, unless the base level, where a litigation is initiated and vertically moves upward to the High Court by way of appeal or revision, is restructured and this proliferating appellate jurisdiction is either controlled or curtailed, the inflow of work in the High Court would neither be regulated nor diminished. The Law Commission is of the firm view that, wherever possible, proliferating appellate and wide original jurisdiction should be controlled or curtailed without impairing the quality of justice.

1. The Constitution of India, Article 214.

2. Id., Article 226.

3. Id., Article 227.

4. LCI, 116th Report on Formation of an All India Judicial Service (1986), Chapter III.

1.22. Approaching the problem from this angle, the Law Commission recommended restructuring of judiciary at grass-root level from where maximum litigation emanate, simultaneously recommending only one revision petition to the District Court and no appeal to the High Court in the matters cognizable by this restructured grass-root judiciary, designated 'Gram Nyayalaya'.1 This recommendation when implemented would make a dependent in the institution of second appeals and civil and criminal revision petitions in the High Courts.

1. LCI, 114th Report on Gram Nyayalaya (1986).

1.23. The Commission next turned its attention to ever-expanding field of litigation under various direct and indirect tax laws. Delay in disposal of litigation under the tax laws has a debilitating effect on the State revenue and delayed disposal adversely affected even assessees.

To cite one example, after the decision of the Supreme Court of India in Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197. which upheld the view that while determining the capital employed in an industrial undertaking for the purposes of section 80J, there shall be deducted the aggregate amounts, as on the first day of the computation period, of borrowed moneys and debts owed by the assessee, numerous companies faced financial ruin in view of the fact that their accounts year to year were closed on a different view of the matter namely, that the borrowed moneys or debts were not to be excluded.

The delay in this case adversely affected the assessees. On the other hand, the State was injuncted from recovering an amount of Rs. 3,800 crores of indirect taxes. It was succinctly brought to the notice of the Commission that the delay in disposal of tax litigation occurs at the High Court level because of a clumsy and dilatory reference procedure under section 256 of the Indian Income-tax Act, 1961, and ever widening conflict in the decisions of different High Courts.

The alternative was to set up a Central Tax Court which will deal with references under the laws imposing direct taxes, indirect taxes and disputes arising under import and export legislation with an all-India perspective. This approach reflected a total departure from the hesitation felt by the earlier Commissions and Committees in recommending Central Tax Courts. A comprehensive report was submitted recommending setting up Central Tax Courts simultaneously eliminating the jurisdiction of the High Courts in the matters covered by the report.1

1. LCI, 115th Report on Tax Courts (1986).

1. 24. The Directive Principles of State Policy, as enunciated in Part IV of the Constitution, require the State to take concrete action for social and socio-economic justice. Accordingly, since the advent of the freedom, labour laws proliferated. 'Industrial and labour disputes', being a subject in the Concurrent List, both the Central Government and the State Governments enacted numerous labour laws and set up specialist machinery for resolving disputes arising under those laws, such as, the Labour Court, Industrial Tribunal Court, Wage Board and National Tribunal.

The decisions of these Tribunals, baring few exceptions in some States, did not provide for any appellate forum. Consequently, every decision of such Court Tribunal was generally questioned before the High Court or the Supreme Court of India. The Commissions and the Committees dealing with the problem of arrears in the High Court did focus attention on this mounting litigation in the High Court under the labour laws. In the earlier attempts, no concrete suggestions emerged as to how to deal with this branch of litigation.

The present Law Commission, toying with the idea of setting up tiers of specialist systems within judicial hierarchy, formulated an approach which, when applied, would indicate the areas where such intermediate tiers or systems could be established, simultaneously excluding the jurisdiction of the High Court. One such area was litigation under labour laws.

It does not require multiple reasons to establish that handling litigation under labour laws requires a specialist knowledge, not merely of labour laws but of economic planning, monetary and fiscal policies, industrial expansion and budgetary formulations and above all peace and harmony in the industry to stimulate increased productivity.

The very fact that since its inception, litigation under labour laws was excluded from the jurisdiction of civil courts, which are generalist courts, and was entrusted to specialist courts set up under those statutes provided proof, if any was needed, that it is an area of specialist jurisdiction.

The Law Commission accordingly examined indepth the nature of litigation under labour laws, the equipment necessary for dealing with the same, the conflicting approach of the various High Courts and other incidental and ancillary aspects and recommended setting up Industrial Relations Commission at the State and Central level, simultaneously excluding the jurisdiction of the High Court under labour laws including elimination of jurisdiction under Articles 226 and 227 of the Constitution.1

1. LCI, 122nd Report on Forum for National Uniformity in Labour Adjudication (1987).

1.25. Continuing the search for matters better left to specialist court tribunal, the Commission came across numerous disputes brought year after year before High Courts arising in the field of education. The Commission, being ill-equipped by itself to formulate the approach, participated in a well attended seminar and subsequent dialogue with a number of Vice-Chancellors from various Universities and other experts in the field of education, and examined in depth the nature of litigation in the field of education and the High Court's responses to the same.

The Commission, having been convinced that disputes arising in the field of education need the specialist approach, recommended setting up of Educational Tribunal at the State and Central level excluding the jurisdiction of the High Court.1

2. LCI, 123rd Report on Decentralisation of Administration of Justice: Disputes Involving Centres of Higher Education (1987).

1.26. While diagnosing what ails the High Courts, the Committees and Commissions in the past largely focussed their attention on inadequate Judge strength and inordinate delay in filling the vacancies. The major recommendations have all been in the direction of simplifying the procedure for appointment of Judges to the High Court, removing the roadblock at present experienced and periodical review and upward revision of the Judge strength of the High Court.

Even apart from the Commissions and the Committees, the Estimates Committee of the Parliament strongly advocated repeal of the procedure for appointment of Judges to the High Courts and the Supreme Court as it felt that the present procedure was outmoded and cumbersome.1 While asserting that the procedure prescribed in the Constitution for appointment of Judges to High Courts and the Supreme Court is cumbersome and dilatory, no alternative procedure was devised and recommended.

Being in agreement with this diagnostic effort of ascertaining the specific ailments with which the High Courts suffer, namely, inordinate delay in filling in the vacancies, failure to review the Judge strength and sanction upward revision commensurate with the institution, the Commission examined in depth the present procedure prescribed in the Constitution for appointment of Judges to High Courts and the Supreme Court.

It did appear that the procedure is cumbersome and dilatory and there was visible failure on this front which further accentuated the malaise of backlog. Accordingly, the Law Commission prepared and submitted a comprehensive report recommending radical reform in the procedure for appointment to High Court and Supreme Court and the method of review of the Judge strength at regular intervals.2 The Law Commission thus took care not merely to specify the ailments but to suggest concrete remedial measures to retrieve the situation.

1. See para 1.5, supra.

2. LCI, 121st Report (1987).

1.27. To sum up, the approach of the Commission is to reduce number of appeals, to set up specialist courts tribunals, simultaneously eliminating the jurisdiction of the High Court which, when translated into action by implementing the reports submitted by the present Law Commission, would, on a very superficial assessment, reduce the inflow of work into the High Court by nearly 45 per cent of its present inflow.

The Government of India, having very recently reviewed the Judge strength of each High Court, sanctioned 81 more posts of Judges in the High Court. If these newly created posts are filled in expeditiously and the existing vacancies are also filled in expeditiously, coupled with the setting up of specialist tribunals, all in their cumulative effect would enable the High Court to effectively and expeditiously deal with the current litigation and simultaneously reduce the backlog of cases.

1.28. The question, however, remains: Is something more required to be done? That is the concern of the present report.

The High Court Arrears - A Fresh Look Back

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