Report No. 14
81. Benches of High Courts.-
We had earlier occasion to make a Report1 on the desirability of the High Court of a State sitting in benches at different places in the State. We then reached the conclusion that the efficiency of the administration of justice should be the paramount consideration governing this matter and that this consideration weighed overwhelmingly against the creation of benches of the High Courts. The structure and composition of the Courts should not be permitted to be influenced by political considerations. That this has happened in the past in certain cases can be no valid ground for the extension of that policy.
We are of the view that we should firmly set our face against the constitution or creation of benches. Such a course would lead to an impairment of the efficiency of the High Court with the inevitable consequence of the lowering of the standards of administration of justice. Since the Report was made, we have visited all the principal centres where the High Courts sit and the evidence given before us has confirmed us in the view taken by us in that Report. We re-affirm the reasons given and the conclusions stated in that Report in regard to this question.
1. Fourth Report of the Law Commission.
82. Summary of recommendations.-
Our conclusions regarding High Courts may be summarised as follows:-
(1) There has been a large increase of arrears in the High Courts and disposals have fallen short of what they should be in a properly regulated court.
(2) The arrears can be partly attributed to the increase in both the normal work of the High Court and also the expansion of its special jurisdiction under various Acts.
(3) The coming into force of the Constitution has also greatly added to the work of the High Courts.
(4) The strength of the High Courts was not increased in time to prevent the arrears from accumulating.
(5) Any proposals made by the Chief Justice of a State for increasing the strength of the High Court, if it has the concurrence of the Chief Justice of India, should be accepted without demur or delay.
(6) The difficulty arising from a shortage of judges has been aggravated by the delays in making appointments to vacancies as have occurred.
(7) The frequent deputation of Judges for non-judicial work without the provision of a substitute is also responsible for the High Courts being undermanned and if such deputation is likely to last for a substantial period of time, arrangements should be made to appoint a substitute.
(8) Many unsatisfactory appointments have been made to the High Courts on political, regional and communal or other grounds with the result that the fittest men have not been appointed. This has resulted in a diminution in the out-turn of work of the Judges.
(9) These unsatisfactory appointments have' been made notwithstanding the fact that in the vast majority of cases, appointments have been concurred in by the Chief Justice of the High Court and the Chief Justice of India.
(10) Consultation with the State executive is necessary before appointments are made to the High Court.
(11) While it should be open to the State executive to express its own opinion on a name proposed by the Chief Justice, it should not be open to it to propose a nominee of its own and forward it to the Centre.
(12) The role of the State executive should be confined to making its remarks about the nominee proposed by the Chief Justice and, if necessary, asking the Chief Justice to make a fresh recommendation.
(13) It would be advisable for the Chief Justice of a State to send a copy of his recommendation direct to the Chief Justice of India to avoid delays.
(14) Article 217 of the Constitution should be amended to provide that a Judge of a High Court should be appointed only on the recommendation of the Chief Justice of that State and with the concurrence of the Chief Justice of India.
(15) The senior puisne Judge should not be automatically appointed as the Chief Justice unless he possesses the qualifications we have referred to.
(16) While there is no need to have a rule that the Chief Justice of a State shall always be from outside the State, yet when a vacancy arises in the office of the Chief Justice of a High Court, the fittest person should be selected, if necessary from outside.
(16A) The appointment of the Chief Justice of a High Court should be with the concurrence of the Chief Justice of India.
(17) The decreasing respect in governmental circles for the judiciary and the courts has to some extent made recruitment to the High Court bench difficult.
(18) Ill-informed criticism of the judiciary by responsible persons has adversely affected its prestige.
(19) The existing salaries of High Court Judges are not so inadequate as to deter competent men from accepting judgeships, except perhaps in Calcutta and Bombay.
(20) The difficulty caused by the low salaries of judges can be counteracted by offering judgeships to rising junior members of the Bar at a comparatively early age.
(21) However, indiscriminate invitations to junior members of the Bar overlooking the claims of seniors tend to destroy respect for the Judges and subsequently deter competent seniors from accepting judgeships.
(22) There should be a convention or condition of service that a High Court Judge should not decline to accept the office of a Supreme Court Judge if called upon to do so.
(23) The retiring age of High Court Judges should be raised to sixty-five, in the case of appointments to be made hereafter.
(24) The pension of the Chief Justice of a State High Court should be fixed at Rs. 2,000 per month and that of a puisne Judge at Rs. 1,750 per month for 12 years of service.
(25) The Judges of the High Court should be allowed to draw their full salary for the period for which they are entitled to leave on full allowances and half salary for the period of leave on half allowances.
(26) High Court Judges should not be permitted to practise in any court after retirement.
(27) The Constitution should be amended to bar a Judge of a High Court from accepting any employment other than as a Judge of the Supreme Court after retirement either under the Union or under the State.
(28) Sub-clause (a) of clause 2 of Article 217 should be amended so as to permit the appointment to the High Court of only those judicial officers who have exercised for at least three years judicial functions as a district judge.
(29) The permanent strength of the High Courts should be refixed after taking into consideration the recent increase of their work.
(30) The strength so fixed should be reviewed at intervals of two to three years.
(31) All proceedings pending in a High Court beyond the period specified in
(32)Additional Judges should be appointed for the sole purpose of clearing these arrears within a period of two years.
(33) Such Judges should not be diverted to the disposal of current work. These additional Judges should be appointed from amongst the most competent persons available at the Bar or in the service.
(34) For the purposes of such recruitment the entire country should be treated as one unit.
(35) An effort should be made to persuade suitable senior practitioners to accept judgeships for at least a short period as a public duty.
(36) An ad hoc body presided over by the Chief Justice of India should be created to draw up a panel of names of persons suitable for appointment to the High Court.
(37) Legislation should be immediately undertaken for transferring all First
(38) Appeals valued below Rs, 10,000 now pending in the High Courts to the district courts. The measures set out in detail by us in the Chapter on Civil Appeals to meet the situation created by such transfer should be undertaken.
(39) The available judge-power of the High Courts should be conserved and used in an economic manner by increasing the power of Single Judges and resorting to other methods which we have set out in detail elsewhere.
(40) The Judges should be assigned to deal with those branches of work in which they are most competent.
(41) The work of admission should be entrusted to senior and specially competent Judges.
(42) Cases should be admitted only after careful scrutiny.
(43) The High Courts should work for at least 200 days in the year. Once this is done, it should be for the High Courts to regulate their vacations as they think best.
(44) Legislation for regulating the vacations of the High Courts is undesirable.
(45) The Judges should sit in court and do judicial work for at least five hours on every working day.
(46) Judges should not be required to sit in court on Saturdays as these are not really free days for them.
(47) The Judges of the High Courts should set an example of strict punctuality on the bench.
(48) The practice of retiring to chambers for dictating judgments or doing administrative work during court hours is not desirable.
(49) It is not desirable to have an all-India cadre of High Court Judges in the sense that Judges should be easily transferable from one High Court to another.
(50) The other measures suggested by us should however suffice to bring Judges from various parts of the country to the bench of one High Court.
(51) The zones might serve as a common recruiting ground for the Judges of the High Courts in that zone.
(52) Judges should bear in mind that their office demands from them a certain reserve and restraint in their social life.
(53) While Judges should control the hearing of the case they should guard themselves against intervening too much and too often.
(54) The High Court Judges should realise that the task of supervision and control of subordinate courts, that is, administrative work is a very important branch of their duties.
(55)Setting up of benches of the High Court at different centres in a State is undesirable.
Table
Comparitive Table Showing The Institutions of Creation Categories of Proceedings in The High Court of Some States During The Years 1945, 1950 and 1955
Name of the State |
|||||||||||||
Nature of proceedings |
Years |
Assam |
Bihar |
Bombay |
Madhya Pradesh |
Madras |
Andhra Pradesh |
Orissa |
Punjab |
Travancore Cochin (Kerala) |
Uttar Pradesh |
West Bengal |
Remarks |
1 |
2 |
3 |
4 |
5 |
6 |
7 |
8 |
9 |
10 |
11 |
12 |
13 |
14 |
First Appeals:- |
1945 |
14 |
293 |
N.A. |
120 |
1114 |
.. |
37 |
437(B) |
740(C) |
74 |
378(B) |
(A) Includes Appeals against Appellate Orders. |
1950 |
27 |
487 |
732 |
169 |
N.A. |
.. |
74 |
234 |
979 |
520 |
339 |
(B) Prior to partition of the State. |
|
1955 |
36 |
552 |
935 |
198 |
934 |
539 |
46 |
272 |
795 |
552 |
345 |
||
Second Appeals:-feom decrees |
1945 |
236 |
1886 |
N.A. |
866 |
2715(A) |
.. |
275 |
2454(B) |
671(C) |
515 |
1860(B) |
(C) Relates to Malayalam year 1121 corresponding to 1945-1946 |
1950 |
91 |
2272 |
1426 |
869 |
N.A. |
.. |
709 |
881 |
930 |
2422 |
1012 |
||
1955 |
158 |
2014 |
1596 |
1061 |
1372 |
1001 |
282 |
1080 |
1165 |
2967 |
1650 |
The abbreviation"N.A." Stands for Not available". |
|
Letters Patent and Special Appeals |
1945 |
Nil |
20 |
N.A |
17 |
80 |
.. |
2 |
231 |
Nil(C) |
49 |
25(B) |
|
1950 |
Nil |
27 |
53 |
31 |
N.A. |
.. |
10 |
91 |
Nil |
46 |
21 |
||
1955 |
Nil |
13 |
96 |
166 |
135 |
201 |
7 |
170 |
Nil |
509 |
9 |
||
Civil Revisions |
1945 |
Nil |
1017 |
N.A. |
536 |
1622 |
.. |
212 |
N.A.(B) |
1324(C) |
3006 |
916(B) |
|
1950 |
88 |
919 |
1193 |
848 |
N.A. |
.. |
271 |
672 |
1120 |
1711 |
1098 |
||
1955 |
77 |
1231 |
2036 |
1040 |
1309 |
1576 |
268 |
946 |
709 |
1807 |
2909 |
||
Appeals Against Orders:- 1945 |
1945 |
45 |
473 |
N.A. |
283 |
403 |
.. |
78 |
475(B) |
1273 |
N.A. |
476(B) |
|
Including Appeals against appellate orders |
1950 |
31 |
476 |
225 |
211 |
N.A |
.. |
75 |
269 |
441 |
457 |
204 |
|
1955 |
61 |
418 |
268 |
272 |
126 |
450 |
87 |
557 |
274 |
689 |
420 |
||
Original Status: |
1945 |
Nil |
10 |
N.A. |
5 |
35 |
.. |
Nil |
179(B) |
Nil(C) |
97 |
1910(B) |
|
1950 |
10 |
19 |
1996 |
1 |
N.A |
.. |
25 |
333 |
Nil |
50 |
5203 |
||
1955 |
4 |
28 |
582 |
15 |
261 |
Nil |
10 |
112 |
Nil |
35 |
3702 |
||
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