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Report No. 58

Structure and Jurisdiction of The Higher Judiciary

Chapter 1

Scope and Genesis of The Report

1.1. At the outset we would like to explain the genesis and scope of the present inquiry. The questionnaire which we issued at the commencement of the inquiry, and the preamble thereto, speak for themselves. We quote below the questionnaire along with the preamble.

"Ever since our Constitution was adopted and the Supreme Court was established, the Supreme Court has, by its verdicts rendered during the last twenty-two years, made the concept of the Rule of law relevant, coherent and stable in this country. It has consistently protected the Fundamental Rights of the citizens against unconstitutional encroachment, examined the validity of legislative and executive actions fairly, impartially and fearlessly, and introduced an element of certainty and uniformity in the interpretation of laws. The service thus rendered by the Supreme Court is of a very significant character and its importance cannot be exaggerated in the context of the federal set-up of the Indian Republic.

1.2. During the same period, High Courts in our States also have done valuable work in exercising their ordinary civil and criminal jurisdiction and their constitutional jurisdiction under Articles 226 and 227 of the Constitution. Broadly stated, it can be legitimately claimed that the operation of judicial process in our country during the last twenty-two years has, on the whole, fostered and strengthened the best judicial traditions and thereby deserved and commanded confidence from the Indian community in general and the litigating public in particular.

1.3. However, all sensitive Judges and lawyers have been feeling an increasing concern about the problem of growing arrears in the administration of justice. Delay made in the decision of cases at all stages inevitably leads to accumulation of arrears and these arrears have now assumed a somewhat alarming dimension In fact, the problem of growing arrears has received the attention of several committees appointed from time to time. The Civil Justice Committee appointed in 1924 examined some aspects of this problem and suggested some remedies. The High Courts Arrears Committee appointed in 1949 by the Government of India under the Chairmanship of S.R. Das, J., as he then was, also examined this problem.

The Uttar Pradesh Law Reforms Committee appointed in 1950-51 as well as the Judicial Reforms Committee of the State of West Bengal appointed in 1949, and the Law Commission which began its work in 1955 also considered the same problem along with other relevant matters. In 1967, the Government of India appointed another Committee to review the problem of arrears in the High Courts and to suggest ways and means for reducing the same. This Committee was later headed by J.C. Shah, former Chief Justice of India, and it has recently submitted its Report. "One of the critical social problems", says the Committee in its Report, "is the acute congestion of cases especially in the High Courts. There is gross delay in the disposal of pending files, leading to serious dissatisfaction in the public mind about the effectiveness of Court process for ventilating the grievances of citizens."

1.4. For some time past, the Law Commission has been examining the question of suggesting changes in the Code of Civil Procedure with the object of avoiding delay in the trial of suits, in the disposal of appeals, and of execution proceedings and appeals arising therefrom. Having studied this problem in depth, the Commission proposes to make certain radical recommendations to the Union Government in the belief that, if the said recommendations are implemented, the problem of delay may be solved at least to some extent.

1.5. In attacking the problem of delay in judicial administration which inevitably leads to the accumulation of arrears, two factors have to be considered. The first factor is human. Judicial process must be constantly conscious of its obligation to the community to render judicial verdicts, as whatever stages the proceedings may be pending, without delay. This does not mean that judicial verdicts should be hasty or ill-considered and should be based merely on the calculation of time taken up in rendering them. Judicial process must make a consistent and determined effort to combine speed with efficiency. This aspect of the attack on arrears is, as has been just observed, human and no rules of procedure can be of material assistance.

1.6. The other factor is procedural. It involves the consideration, inter alin, of the propriety and necessity of several appeals and revisions which are at present contemplated in litigation which takes different forms and falls in different categories. Even while the Law Commission was examining the question of suggesting necessary changes in the Code of Civil Procedure, it received some suggestions- formal and informal-in relation to the wider question of delay and arrears in the High Courts and the Supreme Court; the study which the Commission now proposes to undertake is based mainly on these suggestions.

1.7. Before formulating the points arising from these suggestions the Commission deems it necessary to make it absolutely clear that these points do not represent the Commission's views even tentatively or its provisional thinking in the matter. The idea in posting these problems and circulating them to the different Bar Associations in the High Courts and the Supreme Court, to the High Courts and the Supreme Court is to initiate a dialogue on the question posed. It is obvious that the problems posed deserve serious consideration in all their aspects; and views expressed by the members of the Bar and the higher judiciary and (in relation to industrial relations) by associations of employees and employers would naturally play a major role in guiding the discussion and the ultimate decision of the Commission in that behalf.

1.8. Let us begin with the Supreme Court. The problem of arrears in the Supreme Court had yet not assumed a significant dimension; but arrears are growing and, in course of time, they may present a real problem. Two suggestions have been made in regard to the functioning of the Supreme Court. One is that no attempt should be made to affect the jurisdiction of the Supreme Court, wide as it is, and its authority to deal with matters covered by Articles 32, 133, 134 and 136 should not be curtailed.

It is urged in support of this view that, as the highest Court in the country, the Supreme Court must continue to exercise its final authority in correcting errors committed by High Courts and other Tribunals whose decisions, orders or awards fall within its appellate purview and, though the burden imposed on the Suprent; Court in discharging this wide jurisdiction may be heavy, no attempt should be made to reduce that jurisdiction. The jurisdiction of the Supreme Court under Article 32 must, of course, be maintained, because the right to move the Supreme Court in enforcement of Fundamental Rights is itself a fundamental right and it must remain inviolable.

1.9. On the other hand, it has been suggested by some that time has come when it should become possible for the Supreme Court to concentrate on substantial questions of law concerning interpretation of statutes and on dealing with constitutional matters involving the breach of individual citizens' fundamental rights. The advocates of this view point out that it is not fair to the Supreme Court that matters concerning dismissal of individual employees or bonus, or other industrial disputes, should be brought to the Supreme Court straight from the decisions of the Labour Courts or Tribunals. Similarly, service matters which involve considerations of an administrative character need not be brought before the Supreme Court-as they are at present.

In support of this view, it is suggested that the Union Government should revive Labour. Appellate Tribunals, or set up Industrial Relations Commissions in the States and at the Union level, and these should deal with all industrial disputes, leaving it open to the aggrieved parties to move the Supreme Court under Article 136 on substantial questions of law.

1.10. In regard to service matters, it is urged that a separate high powered Tribunal or Commission should be set up to deal with service matters and this Commission should be presided over by a Judge of the status of the Supreme Court Judge assisted by two independent Experts, and the decisions of this Tribunal or Commission should be final, subject to the right of the public servant to approach the Supreme Court under Article 136 on the ground that his fundamental rights are violated. The terms and conditions of service of members of this Tribunal or Commission should be similar to those of the Judges of the Supreme Court.

1.11. In regard to tax matters, it is proposed that the Reference to High Courts contemplated by the Income-tax Act which invariably involves considerable delay should be eliminated and the decisions of the Income Tax Appellate Tribunals should become final, subject to the said decisions being reviewed either under Article 226 by the High Courts or under Article 136 of the Constitution by the Supreme Court.

1.12. Another idea, which has been suggested, is that time has come when we should think of setting up Zonal Courts dealing with appeals against decisions of the High Courts in a particular zone. This scheme would proceed on the basis of dividing the country into four Zones and the Courts would be composed of Chief Justices or Senior Judges of the High Courts in the respective States constituting the Zone. These courts would function like circuit Courts and would hold their sittings in the said respective High Courts from time to time. If this idea is accepted, many appeals, which come to the Supreme Court today, may be filed before the Zonal Courts and their decisions would be regarded as final.

1.13. Even in regard to Article 136 of the Constitution, it is suggested that Article 136 should be suitably amended so as to exclude from its purview civil and criminal appeals which are not covered by Articles 133 and 134. In other words, so far as civil and criminal appeals are concerned, it is only such appeals as satisfy the requirements of Articles 133 and 134 that should reach the Supreme Court and no other. In this connection, attention is invited to the recent amendment of Article 133 and it is proposed that Article 134 should be similarly amended.

1.14. In regard to Writ Petitions pending in the High Courts, the complaint is that a large number of such petitions are filed mainly to gain time by obtaining stay orders, and ultimately it is found that they do not involve any question which justifies the interference of the High Courts under Article 226. In order to prevent the institution of unsubstantial or frivolous writ petitions, a suggestion is made that the writ Court should not issue interim stay or injunction, unless notice of the proposal to move the court in that behalf is served on the respondent and copies of all documents in support of the plea for stay or injunction are filed in court and served on the opposite party.

1.15. Another point which has been raised is: Should the High Courts in proceedings under Article 226 of the Constitution and the Supreme Court in proceedings under Article 32 of the Constitution deal with disputed questions of fact? If yes, should oral evidence be allowed to be tendered as in ordinary trial proceedings?

1.16. It is in the light of these suggestions which the Commission has received, that relevant questions have been framed. The Commission is conscious that the questions thus formulated by way of illustration needs very careful consideration, as they affect the structure of the appellate and writ jurisdictions of the Supreme Court and the High Courts in one respect or another. But the object in framing the Questionnaire is first to invite opinions of the different Bar Associations in the High Courts and the Supreme Court, and of associations of employees and employers, and of the High Courts and the Supreme Court, and then discuss the same with some of the representatives of lawyers, and employees and employers and with Judges.

The Commission would like to add that the present study has been undertaken in the first belief-which the Commission is confident is shared by the Judiciary and the Bar and employees, and employers alike-that the strength and glory of our system of judicial administration rests solely on the confidence which it commands from the community, and that it should be the concern of all of us to devise, from time to time, legitimate, fair and effective ways and means of avoiding delays and accumulation of arrears."

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