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Report No. 192

Chapter III

Legislative competence of Parliament to enact the Vexatious Litigation (Prevention) Law.

We have pointed out that currently there are legislations made in the former State of Madras and in the State of Maharashtra on the subject of Prevention of Vexatious Litigation. There is also a Bill proposed in the State of Kerala. The constitutional validity of the Madras Act of 1949 has been upheld by the Supreme Court in P.H. Mawle v. State of A.P., AIR 1965 SC 1827.

We are of the view that there is a great need to have a law on the same subject for being applied to the whole of India, whereby a person can be declared by a Division Bench of the High Court as a vexatious litigant if he has been initiating vexatious litigation. In that event the Advocate General of the State or such other law officer to be notified by the concerned State or Union Territory could apply to the Division Bench of the High Court to declare the person as a vexatious litigant, have the order published in the Gazette and inform all the subordinate courts. Thereafter, he would not be allowed to file any civil or criminal cases or any other type of case in the High Court, except with the leave of the High Court or the District Court, as the case may be.

It is, therefore, proposed to recommend the bringing into force of a comprehensive legislation on prevention of vexatious litigation applicable to all the States and Union Territories.

We shall first examine the legislative competence of the Parliament to legislate on this subject of 'vexatious litigation'.

As we shall presently show, Parliament has necessary powers to make a law on Prevention of Vexatious Litigation, applicable uniformly to all States and Union Territories.

In this context, it is well to remember that the Supreme Court in P.H. Mawle v. State of A.P., AIR 1965 SC 1827, dealing with the legislative competence of the then State Legislature of Madras under the Government of India Act, 1935 referred to Entry 2 of List II and Entries 2 and 4 of List III of the VII Schedule of that Act.

In the Government of India Act, 1935, these Entries read as follows:

"Entry 2 of List II: Jurisdiction and powers of all courts except the Federal Court, with respect to the matters in this List; procedure in Rend and Revenue Courts."

"Entry 2 of List III: Criminal procedure, including all matters included in the criminal procedure at the date of the passing of this Act."

"Entry 4 of List III: Civil procedure, including the law of Limitation and all matters included in the Code of Civil Procedure at the date of commencement of this Act; the recovery in a Chief Commissioner's Province."

The position under the Constitution of India, after the Constitution (42nd Amendment) Act, 1976 (w.e.f. 3.1.77) is as follows:

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