Report No. 188
List III
(a) Entry 11A: Administration of Justice; Constitution and organization of all Courts, except the Supreme Court and High Courts.
(b) Entry 13: Civil Procedure Code, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitations and arbitration.
(c) Entry 46: Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this list.
(Earlier, 'Administration of Justice' was in Entry 3 of List II upto 3.1.1977).
Question is what are the relevant legislative powers of Parliament in this behalf? From the above Entries in the Constitution, it is clear that so far as the legislative powers of Parliament under List I and List III vis-à-vis the High Courts are concerned, the position is that:
(a) Under List I Entry 78, Parliament can legislate on the subject of: 'Constitution and organization (including vacations) of the High Courts (except provisions as to officers and servant of the High Court); persons entitled to practise before the High Courts, under Entry 95, Parliament can, in respect of any matter in List I, make laws as to the jurisdiction and powers of all Courts.
(b) Under List III Entry 11A, Parliament can make laws concerning the 'Administration of Justice'. (It has to be noted that the words in Entry 11A "except the Supreme Court and High Courts" which have the effect under that Entry, of debarring the Union and State Legislatures from dealing with the 'Constitution and organization of the Supreme Court and High Court' under List III do not affect Parliament' powers inasmuch the power to deal with 'constitution and organisation of High Court' is already vested in Parliament under Entry 78 of List I. Therefore, the prohibition in List II is virtually confined to barring the State Legislature from dealing with 'constitution and organization of Supreme Court or High Court').
In addition, under Entry 13, Parliament can make laws in respect of the Civil Procedure Code (including all matters included in the Code of Civil Procedure at the commencement of the Constitution), Limitation and Arbitration. Further, under Entry 95 of List I and Entry 46 of List III, Parliament can make laws relating to 'jurisdiction and powers of High Court and subordinate courts with respect to any of the matters in List I and admiralty jurisdiction and List III. As to the meaning of those words in these two entries, the law is now well settled, as detailed below.
Thus, so far as Parliament's powers under List I and List III are concerned, if we combine Entry 78 of List I and Entry 11A and 13 of List III, it pertains to the following matters: Constitution and organization (including vacations) of the High Courts (except provisions as to officers and servants of the High Court); persons entitled to practise before High Courts; Administration of Justice; 'jurisdiction and powers of the High Court with respect to any of the matters in List I and Admiralty jurisdiction with respect to any of the matters in List III (including Entry 13 of List III Civil Procedure Code).
We shall make reference to some leading cases decided by the Supreme Court of India while interpreting these Entries in List I, II and III.
Here one important thing to note is the omission of certain words in Entry 3 of List II and insertion thereof in Entry 11A by the Constitution 42nd Amendment Act, 1976. Before the said 42nd Amendment (which came into force w.e.f. 3.1.1977) the words 'Administration of Justice, constitution and organization of all Courts, except the Supreme Court, and High Courts' were contained in the opening part of Entry 3 of List II.
After the judgment of the Supreme Court in State of Bombay vs. Narootamdas, AIR 1951 SC 69 and Mohindroo O.N. vs. Bar Council of Delhi, AIR 1968 SC 888 Parliament felt that the above words 'Administration of Justice. High Courts' must be transferred from Entry 3 of List II to the newly inserted Entry 11A of List III. Therefore, the judgments of the Supreme Court interpreting the words 'Administration of Justice, constitution and organization of all Courts' in Entry 3 of List I as contained therein before 3.1.77 must equally apply to the interpretation of the said words after they were transferred to Entry 11A of List III on or after 3.1.77.
The earliest of such judgments, in fact, deal with corresponding sections of the Government of India Act, 1935. The case in State of Bombay vs. Narootamdas, AIR 1951 SC 69 related to interpretation of corresponding entries in the Government of India Act, 1935. A Constitution Bench had to deal with the vires of the Bombay Civil Court Act, 1948 passed by the Bombay Legislature. The corresponding Entries in Entry 53 of List I, Entries 1, 2 of List II and Entry 15 of List III of Schedule VII in the Government of India Act, 1935 came up for consideration. Five Judges wrote separate concurring judgments upholding the legislation passed by the Bombay Legislature. The Entries in the 1935 Act were as follows:
(a) Entry 53 of List I: Jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List.....
(b) (i) Entry 1 of List II : ......the administration of justice, constitution and organization of all Courts except the Federal Court...
(ii) Entry 2 of List II : Jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List......
(c) Entry 15 of List III : Jurisdiction and powers of all Court except the Federal Court, with respect to any of the matters in this List.
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