Report No. 14
57. Ministry of Justice and Implementation of Recommendations
1. Governmental apathy and the problem of arrears.-
The picture that has emerged from the foregoing chapters is not encouraging. The state of affairs which it discloses shows in several respects neglect and disregard of one of the primary functions of the State which is the administration of justice.
The altered conditions in the country led to an enormous increase in the load of work carried by the courts. The increase was so patent that no administration could have failed to notice it. Yet, notwithstanding the persistent cry of some High Courts for more judicial personnel and a larger number of courts, the administrations concerned failed to realise their responsibility in the matter. The equipment and building of court-houses received very little attention.
Though we have been pouring money into a number of activities, the administration of justice has not seemed to be of enough importance to deserve more financial assistance. On the contrary, in a number of States not only has the administration of justice been starved so as to affect its efficiency, but it has also been made to yield revenues to the State. The inevitable consequence has been the vast volume of arrears not only in civil but also in criminal matters. We meet at conferences to discuss these arrears which are but the creation in a considerable measure of the inaction of the State itself.
2. Attitude of the Government of India.-
The attention of the Government of India was drawn to the heavy arrears in civil courts even before the transfer of power. The question was examined by the Rankin Committee as far back as 1925. It made several recommendations. After the submission of the report of that Committee, the Government of India seems to have entered into a lengthy correspondence with several Provincial Governments and attempted some legislation to implement its recommendations.
No substantial steps appear, however, to have been taken in this direction. The problem of arrears in the High Courts was considered by the High Court Arrears Committee in 1949. Not much appears to have been done by the authorities to implement the recommendations of this Committee. Its report seems merely to have been circulated to the State Governments and to the High Courts.
3. Divided responsibility for administration of justice.-
Perhaps, the situation is partly the outcome of a divided responsibility in respect of these matters between the Central and the State Governments. The administration of justice is, under the Constitution, the exclusive concern of the State Governments. Criminal and Civil procedure are matters in the concurrent field of legislation. The constitution and the organization of High Courts and all matters relating to the Supreme Court are matters for Parliament and the Union Government.
It appears to us that the allocation of business relating to the administration of justice between the various Ministries of the Government is not such as to make for efficiency. There would appear to be no one Ministry or department on whom rests, in a general way, the whole responsibility for the administration of justice.
Conventions with other countries in judicial matters, constitution and organization (excluding jurisdiction and powers) of the Supreme Court (but including contempt of such Court) and the fees taken therein, the constitution and organization of the High Courts and the Courts of the Judicial Commissioners except provisions as to officers and servants of these courts, the extension of the jurisdiction of a High Court having its principal seat in any State to and the exclusion of jurisdiction of any such High Court from any area outside the State, criminal law, criminal procedure and the administration of justice, jurisdiction and powers of courts in the Union territories are matters within the purview of the Ministry of Home Affairs.
On the other hand, the Ministry of Law deals with treaties and agreements with foreign countries in matters of civil law, the enlargement of the jurisdiction of the Supreme Court, the conferring thereupon of supplemental powers, the persons entitled to practice before the High Courts, bankruptcy, evidence, civil procedure including limitation and arbitration and the legal profession. It is clear to us that such a division of functions between the two Ministries of the Government of India apart from being not logical, is bound to adversely affect the administration of justice.
The division is archaic and seems to have its roots in days when the portfolio of law was often held by an Indian Member of the Governor-General's Executive Council while Home Affairs were entrusted to a European Member, it being the function of the latter department to maintain law and order. It is not unnatural that ui those days the question of the appointment of Judges to the High Courts should have been left to the Home Department.
4. Inadequate organization for administration of justice.-
Neither of the two Ministries as at present organised, would seem to possess the necessary equipment which would enable it to keep in touch with the administration of justice in the several States and to act as a clearing house of information and ideas and generally to initiate and co-ordinate policies in this regard.Though it is understood that State Governments and the High Courts have been periodically sending copies of their annual reports on the administration of civil and criminal justice to the Government of India, the information furnished by them does not appear to receive much attention at the Centre.
We understand that when recently the statistics relating to the number of pending matters in the High Courts were needed by the Government, the Home Ministry had to call for figures from the High Courts notwithstanding that some of them were contained in and ascertainable from the reports received by them from time to time. It should be noticed that the Ministry does not possess officials or officers with the background of an adequate knowledge of law and the working of law courts so necessary to a department of Government dealing with such technical matters as criminal procedure and the organization of the High Courts and the Supreme Court.
Nor can it be said that the Ministry of Law as at present organized is in a position to deal effectively with these matters. That Ministry appears to have so far mainly functioned as an adviser and draftsman to the Government of India and seems to have concerned itself very little, if at all, with the general aspects of the administration of justice. It appears to have neglected its responsibility even for keeping the Civil Procedure Code up-to-date. Long before 1939, Sir Dinshah Mulla in his commentaries on the Code of Civil Procedure drew attention to the conflict of decisions under section 47 of the Civil Procedure Code and suggested that the section should be amended so as to set the conflict at rest. No action, however, was taken, by the then Legislative Department or by the Ministry of Law to set these matters right till 1956 when the Civil Procedure Code was amended in this respect.
5. Need for a Ministry of Justice.-
We have earlier referred to the need for a periodical revision of the laws so that they might be brought into line with modern juristic ideas, conflicts of judicial decisions may be set at rest and the law itself brought into harmony with the changed and the changing conditions in the country. But much more than a periodical revision of the law is needed if the administration of justice is to improve. The needed incentive and action can be provided only by a properly organized department of the Union Government having charge of the administration of justice in all its aspects.
It is no doubt true that the administration of justice is a State subject and that the role of the Central Government in this matter, except in relation to the Union territories, is limited. Nevertheless, a great deal of useful and necessary work in this direction can be done at the Centre by effecting a co-ordination of the efforts of the States and by laying down general standards. We have noticed in the course of our enquiry that there is a good deal of ignorance in one State about the methods and procedures adopted in another State.
There are many problems common to the States, some of which have been dealt with successfully by one or other of the States. In such cases, the experience of one State is bound to be useful to the others if made available to them. A properly equipped Central Ministry could not only act as a store-house of information and as a clearing-house of ideas, but also lay down standards in the matter of judicial administration for all the States. Such a Ministry can also make the Union territories models of judicial administration for the rest of the country.
It is, in our view, very necessary that a Ministry of Justice staffed by competent personnel, possessing the necessary technical knowledge and administrative experience, be established at the Centre for these purposes. Among other matters, such a Ministry would be charged with the task of ensuring that the High Courts in the various States possess adequate and competent personnel. It may also assume the control of the Indian Judicial Service whose creation we have recommended. Among, other subjects, civil and criminal procedure and the legal profession might be dealt with by this Ministry. If it does become necessary, as indicated by us elsewhere, to amend the Constitution so as to give a greater measure of control to the Centre over the administration of justice in the States, this Ministry might be entrusted with these functions.
We may in this connection refer to the fact that the creation of such a Ministry of Justice has been advocated in England where eminent lawyers have expressed themselves against the condition of affairs under which the responsibility for the administration of justice is divided between the Lord Chancellor and the Home Secretary though the conditions there are not so confused and illogical as here. No doubt this reform has not been given effect to in England for various reasons, some of which are associated with tradition and sentiment and the importance of the high office of the Lord Chancellor. No such considerations, however, have any relevance to our country. It may be mentioned that a Ministry of Justice is a common department of State in many Continental countries.
6. Implementation of recommendations.-
We may advert to another important circumstance. We have already referred to the manner in which the recommendations of the Rankin Committee and the High Court Arrears Committee were treated. We trust that the efforts of this Commission will be more fruitful. The Centre as well as the States, are at the present moment devoting their energies and resources to nation-building activities which form part of our Five-Year Plans. We trust that the Central as well as the State Governments will regard an improvement in the administration of justice as of equal importance to the nation and take steps forthwith to consider and implement our recommendations.
We realise that many of the subjects dealt with in our report are State subjects and that the changes recommended by us can only be effected by a proper co-ordination and co-operation between the Centre and the States. That in our view emphasises the need for the Centre to take a quick and decisive initiative in the matter of considering, and giving effect to the views expressed in the report.
7. Appointment of special officer necessary.-
The establishment of a Ministry of Justice may take some time. It is, therefore, necessary, particularly in view of the fact that subjects with which we deal in this respect are matters dealt with partly by the Home and partly by the Law Ministry, that a Special Officer of the appropriate status and experience should be appointed to take up the consideration of our recommendations with the State Governments with a view to their speedy implementation. Many of the matters with which we have dealt require emergent and quick action.
The moneys expended on and the labours devoted to the work of this Commission will have been spent in vain, unless it is appreciated that the maintenance of an efficient system of administration of justice is one of the primary functions of the modern State. We shall not attain the noble objectives enshrined in the Preamble to our Constitution unless the State assumes an adequate responsibility for the discharge of this primary function.
M.C. Chagla, K.N. Wanchoo, P. Satyanarayana Rao, G.N. Joshi, N.C. Sen Gupta, V.K.T. Chari, N.A. Palkhivala, D. Narasa Raju, S.M. Sikri and G.S. Pathak
K. Srinivasan and Durga Das Basu
Dated: September 26, 1958.
Dr. N.C. Sen Gupta and Shri V.K.T. Chari have concurred in the Report, subject to their separate notes.
Shri S.M. Sikri has also expressed his concurrence in the Report.