Report No. 69
XVI. Recommendation as to Court
6.31. Having taken into consideration all aspects of the matter, we have come to the conclusion that it is essential that the scope of the definition of "court" should be indicated more precisely than at present; and we are of the view that this delimitation should take the shape of a revised definition, which will confine the ambit of the expression "court" in this Act to civil, criminal and revenue courts, at the same time leaving scope for including a tribunal of a special nature within the definition by appropriate legislative action.
No definition can be perfect, but we believe that the first part of the revised definition will introduce a modicum of certainty, while the second part will leave scope for that much of elasticity as is desirable in such matters. The elasticity will not, however, be achieved at the cost of precision, because, whenever a special tribunal is created, it will be open to the Legislature to take a decision whether or not it should be regarded as court within the meaning of the Evidence Act, and such a course will minimise the scope for controversy arising in the matter. Every authority with judicial functions is not a court under the Evidence Act. There are features common to courts and tribunals, and features distinct to each.1 One cannot catalogue them.
1. A.C.C. v. P.N. Sharma, (1965) 1 SCA 723.
6.32. Effect of proposed definition on existing Acts-Interpretation.-
It is, no doubt, true that the definition as proposed to be revised will restrict the scope of "court", unless the Legislature declares the particular tribunal as court.
In some cases, as noted above,1 for example, Industrial Tribunals have been held to be courts for the purposes of the Evidence Act, and the amendment would change the existing law. This departure from the existing law, as interpreted by some High Courts, is deliberate. It may, however, be pointed out2 that the amendment will not preclude Parliament or State Legislature from making such provisions;3 and if any statutory provisions exist, they also would be saved under the draft suggested.
The present uncertainty will be avoided, and in each case, the appropriate Legislature can make a suitable provision.
1. See supra.
2. Section 87(3), Representation of the People Act, 1951.
3. Check up as to provisions "under law".
In the light of the above discussion our recommendation is to confine the definition of court to "civil, criminal or revenue court"1 and, as regards tribunals, we would include only such tribunals as may be declared by or under Central or State or Provincial Acts to be tribunals for the purposes of the Evidence Act.2
We, therefore, 'recommend the following revised definition of "court":-
"court" means a civil, criminal or revenue court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by or under that Act to be a court for the purposes of this Act, but does not include an arbitrator.
1. Cf. section 195(2), Cr. P.C., 1973.
2. Shri Dhavan has a reservation in the matter.
6.34. In the formula suggested above, the inclusive portion is, in a sense, redundant, because, if the other Act provides for applying the Evidence Act, the provision in the other Act possesses its own potency, and will operate whether or not the Evidence Act refers to it. However, the inclusive portion makes it clear, by implication, that "tribunals" do not fall within the definition, in the absence of an express provision. The express provision could, as already stated, be made by the appropriate legislation.
It may incidentally be noted that the first part of the formula uses phraseology used in the legislation relating to traditional judicial hierarchy-such as, the Civil Courts Act and the Code of Criminal Procedure.