Report No. 14
Reform of Judicial Administration
Ever since Independence, suggestions were made in and outside Parliament for the appointment of a Law Commission for examining the Central Acts and recommending the lines on which they should be amended, revised or consolidated.
On the 2nd December, 1947, Dr. Sir Hari Singh Gour moved a resolution in the Constituent Assembly (Legislative) recommending the establishment of a Statutory Law Revision Committee to clarify and settle questions of law which required elucidation. The resolution was, however, withdrawn by the mover upon an assurance being given by the then Law Minister, Dr. Ambedkar, that Government would try to devise some other suitable machinery for revising laws. One of the methods by which the work of law revision could be undertaken was stated by Dr. Ambedkar to be a permanent Commission which would be entrusted solely with the work of revising and codifying the laws.
The advisability of creating a Law Commission was again stressed in the Lok Sabha on the 27th June, 1952 by Shri N.C. Chatterjee, on a discussion on the Motion for Demands for the Ministry of Law.* In the course of his speech on the occasion, the then Law Minister Shri C.C. Biswas stated that the Government recognised that the work of keeping the law up-to-date was one of vital importance and he gave an assurance that the question would be examined by Government and necessary steps would be taken.
* . House of the People Debates, 1952, Vol. II, col. 2690.
On the 26th of July, 1954, the All-India Congress Committee resolved that "a Law Commission should be appointed as in England to revise the laws promulgated nearly a century back by the Law Commission of Macaulay and to advise on current legislation from time to time".
The genesis of the present Commission lies in a non-official resolution moved in the Lok Sabha on the 19th November, 1954. The contents of that resolution were:
"This House resolves that a Law Commission be appointed to recommend revision and modernization of laws, criminal, civil and revenue, substantive, procedural or otherwise and in particular, the Civil and Criminal Procedure Code and the Indian Penal Code, to reduce the quantum of case-law and to resolve the conflicts in the decisions of the High Courts on many points with a view to realise that justice is simple, speedy, cheap, effective and substantial."
In the course of further discussion on this resolution in the Lok Sabha on the 3rd December, 1954 the Prime Minister Shri Jawaharlal Nehru, made a statement that the Government had accepted the resolution insofar as the appointment of the Law Commission was concerned and that Government were even then "engaged in considering the steps to be taken towards that end". In view of the acceptance by the Prime Minister of the principle underlying the resolution, the resolution was withdrawn.
2. Though the suggestions made to Government and the assurances given by them from time to time related to the revision and modernisation of laws, the underlying purpose as stated in the resolution of the 19th November, 1954 was "to realise that justice is simple, speedy, cheap, effective and substantial". This aim could not be a Chiefed merely by revision and simplification of the laws but needs also overhauling the system of administration of justice. The growing accumulation of arrears in the various High Courts and subordinate courts had created a situation which necessitated a careful examination of the problem of the proper functioning of the machinery of the courts. Presumably these reasons led Government to widen the ambit of the activities of the proposed Law Commission so as to include in it the subject of the reform of judicial administration.
3. On the 5th of August, 1955 the Law Minister, Shri C.C. Biswas, made the following statement in the Lok Sabha announcing the Government of India's decision to appoint a Law Commission, its membership and the terms of reference:
"Suggestions have been made from time to time both in Parliament and outside that a Law Commission should be appointed for revising our statute law and suggesting ways and means of improving the system of judicial administration in the country. A few months ago we had a discussion in this House on a resolution to that effect moved by Shri Thimmaiah. On that occasion, the Prime Minister accepted the resolution in principle and stated that Government were considering what exactly the terms of reference to the Law Commission should be, what should be the personnel, and various other details.
2. The Government of India have now decided to appoint a Law Commission consisting of the following members:-
(1) Shri M.C. Setalvad, Attorney-General of India (Chairman),
(2) Shri M.C. Chagla, Chief Justice of the Bombay High Court,
(3) Shri K.N. Wanchoo, Chief Justice of the Rajasthan High Court,
*(4) Shri G.N. Das, retired Judge of the Calcutta High Court,
(5) Shri P. Satyanarayana Rao, retired Judge of the Madras High Court,
(6) Dr. N.C. Sen Gupta, Advocate, Calcutta,
(7) Shri V.K.T. Chari, Advocate-General, Madras,
(8) Shri Narasa Raju, Advocate-General, Andhra,
(9) Shri S.M. Sikri, Advocate-General, Punjab,
(10) Shri G.S. Pathak, Advocate, Allahabad, and
(11) Shri G.N. Joshi, Advocate, Bombay.
*. Resigned on 31st December, 1956.
3. The terms of reference to the Commission will be:
firstly, to review the system of judicial administration in all its aspects and suggest ways and means for improving it and making it speedy and less expensive;
secondly, to examine the Central Acts of general application and importance, and recommend the line on which they should be amended, revised, consolidated or otherwise brought up-to-date.
4. With regard to the first term of reference, the Commission's inquiry into the system of judicial administration will be comprehensive and thorough, including in its scope,-
(a) the operation and effect of laws, substantive as well as procedural, with a view to eliminating unnecessary litigation, speeding up the disposal of cases and making justice less expensive;
(b) the organisation of courts, both civil and criminal;
(c) recruitment of the judiciary; and (b) level of the Bar and of legal education.
5. With regard to the second term of reference, the Commission's principal objectives in the revision of existing legislation will be-
(a) to simplify the laws in general, and the procedural laws in particular,
(b) to ascertain if any provisions are inconsistent with the Constitution and suggest the necessary alterations or omissions,
(c) to remove anomalies and ambiguities brought to light by conflicting decisions of High Courts or otherwise,
(d) to consider local variations introduced by State legislation in the concurrent field, with a view to reintroducing and maintaining uniformity,
(e) to consolidate Acts pertaining to the same subject with such technical revision as may be found necessary, and
(f) to suggest modifications wherever necessary for implementing the directive principles of State policy laid down in the Constitution.
6. In order to perform its task expeditiously and efficiently, the Commission will function in two sections. The first section consisting of the Chairman and the first three members will deal mainly with the question of the reform of judicial administration, while the second section consisting of other seven members will be mainly concerned with statute law revision on the lines indicated above. The two sections, however, will work in close co-operation with each other under the direction of the Chairman.
7. The Chairman of the Commission may at his discretion co-opt as members one or two practising lawyers of a State in order to assist the Commission's inquired in that State.
8. The Commission is appointed in the first instance upto the end of the year 1956. Its headquarters will be at New Delhi."
4. Shri N.A. Palkhivala was appointed a Member of the Commission on the 1st October, 1956 in the Statute Revision Section, it having been decided to give priority to the revision of the Indian Income-Tax Act.
In December 1956, one of the Members of the Commission Shri G.N. Das resigned his Membership of the Commission for reasons of health. His resignation deprived the Commission of the mature experience of a senior and eminent member of the Bar and later of the Bench. It was with considerable regret that the Chairman accepted his resignation. It may be mentioned that the Commission is greatly indebted to him for the assistance he gave to the Commission during the period of his association with it, particularly on certain important topics relating to the reform of judicial administration.
After Shri G.N. Das resigned from the Commission Shri P. Satyanarayana Rao who was till then principally in charge of the Statute Revision Section of the Commission was invited by the Chairman to serve on the First Section in addition to his onerous duties in the Second Section and the invitation was accepted by him.
5. Although our appointment was in the first instance upto the 31st December, 1956, the period had to be extended from time to time upto the 30th September, 1958 in view of the large field of our inquiry.
6. In accordance with our instructions we have functioned in two sections. The first section consisting of the Chairman and the first three members have dealt mainly with the question of the reform of judicial administration. At our inaugural meeting held on the 16th September, 1955 we discussed the objectives in our terms of reference and the particular lines on which the Commission as a whole and the two sections thereof should proceed; the initial steps to be taken and the procedure to be followed, insofar as the work of the first section was concerned.
It was decided (1) that the factual position with which the first section had to deal should in the first instance be ascertained before considering the remedial measures; (2) that detailed information on these problems should be collected from all possible sources; (3) after the information had been collected, a comprehensive questionnaire should be addressed to all bodies and persons likely to assist the Commission with their knowledge and experience, and (4) that the recommendations should be decided upon after the replies to the questionnaire had been examined.
At the first meeting of the first section held on the 17th September, 1955 we discussed the several problems relating to the administration of justice on which reform was needed and prepared a list of the topics on which material had to be collected. After the required information had been collected from the State Governments, the High Courts and other sources, a detailed questionnaire* containing 193 questions embracing almost all the aspects of judicial administration was prepared at the second meeting of this section held on 6th January, 1956 and was finally settled at a meeting of the full Commission held on the 7th January.
More than six thousand copies of the questionnaire were distributed amongst individuals and associations including the High Courts, the State Governments, Bar Associations and other organisations such as Chambers of Commerce, individual lawyers and judicial officers. Although we received a fairly large number of replies to the questionnaire we regret to observe that the response was not as encouraging as we had anticipated.
At a meeting held in Bombay on the 21st July, 1956, we reviewed the progress of the work done by the first section of the Commission till that date with special reference to the answers to the Questionnaire that had been received. It was then decided that in order to obtain opinion and information on some of the important problems which arose, it was necessary that the first section of the Commission should visit the States and hold sittings at the principal seat of the High Court in each State and examine witnesses at these places. The conclusions reached at this meeting of the first section were endorsed by the Commission at its full meeting held on the next day.
The first section of the Commission met at New Delhi on the 18th, 19th and 20th of October, 1956 to further discuss the matters raised in the Questionnaire in the light of the replies and information received and formulated certain tentative ideas,with a view to eliciting opinion on them at the sittings of the Commission when on tour. These tentative ideas were placed before a meeting of the full Commission held on the 20th of October, 1956.