Report No. 58

Structure and Jurisdiction of The Higher Judiciary

Contents
Chapter 1	Scope and Genesis of The Report
1.1. - 1.16.	Scope and Genesis of The Report
1. - 4.	Questionnaire On Structure And Jurisdiction of The Higher Judiciary (OCTOBER, 1972)
5. - 6.	High Courts
7.	Taxation
8.	Industrial Disputes
9.	Disputes as to Matters relating to Civil Services
10. - 12.	Zonal Courts
13.	Other Suggestions as to various Courts
14.	Pay and Pension of Judges
15.	Miscellaneous
Chapter 2	Some General Observations
2.1.	Introductory
2.2.	Re-evaluation of human institutions needed
2.2.	Concept of 'law' in ancient times
2.3.	The concept of justice
2.4.	Its sanction
2.5.	The role of the Higher Courts
2.6.	High Courts
2.7.	High Courts as the highest Courts of civil and criminal appeal
2.8.	The Supreme Court
2.9.	The need for review
2.10.	Task of law reform
2.10.	No reason to be complacent
2.11.	Feeling that system has not proved beneficial
2.12.	Earlier inquiries
2.13.	The present context
2.14.	Questions selected for consideration
2.15.	Appellate jurisdiction of the Supreme Court
2.16.	Conditions essential for creative task
2.17.	Question of proper role of the Supreme Court
2.18.	Instinct for appeal
2.19.	The U.S. Supreme Court compared
2.20.	Courts of appeal in the U.S.A.
2.21.	In West Germany
2.22.	The tradition in Commonwealth countries
2.23.	Appellate jurisdiction of the Supreme Court
2.24.	Writ jurisdiction of the High Courts
2.25.	Two important procedural aspects
2.26.	Certain special types of matters brought before the Supreme Court and High Courts
2.27.	Challenges against quasi-judicial decisions
2.28.	Number of service cases and labour disputes and taxation matters
2.29.	Three types of cases
2.30	Suggestions for 'Zonal' Courts
2.31.	Some other connected questions
2.32. - 2.33.	Questionnaire
2.34.	The problem of arrears
2.35.	The causes of arrears
2.36.	Litigation not an evil
2.37.	Increase in case-load to be anticipated
2.38.	Problems considered
2.39.	Arrears not the major consideration
2.40.	Object of Reforms
2.41.	Principal questions dealt with
	Supreme Court
	High Courts
	Specialised matters
	Zonal Courts
	Other suggestions
Chapter 3	Appeals to The Supreme Court
3.1.	Questions dealt with serially
3.2.	Act of 1970
3.3.	Criminal appeals to the Supreme Court
3.4.	Article 134(1)(a) and (b) and 1970 Act not dealt with
3.5.	Gist of replies
3.6.	Views favouring limitation in a modified form
3.7. - 3.10.	Present Position
3.11.	Rational and sound guideline desirable
3.12.	Special aspect of Criminal cases as involving liberty considered
3.13.	Effect of the recommended change
3.14.	Embarrassment likely to be caused to High Court as to certificate on questions of fact
3.15.	Findings of High Court to be final on facts
3.16.	Implications of proposed amendment
3.17. - 3.18.	Well settled questions of law not to be certified
3.19.	Article 136
3.20.	Effect of proposed amendment on work-load of Supreme Court
3.21. - 3.22.	Some figures
3.23.	Amendment will only codify existing interpretation
3.24. - 3.25.	Decisions
3.26.	Jurisdiction unlike an ordinary Court of criminal appeal
3.27. - 3.31.	Some cases
3.32.	Earlier decisions
3.33.	Recent cases
3.34.	Article 136 considered
3.35.	Functioning of the Supreme Court under a Federal Constitution
3.36.	Hearing by whole Court considered
3.37.	Number of Judges
3.38. - 3.39.	Two views on the role of highest court
3.40. - 3.41.	Basis of our conclusion
3.42.	Appeals to the Supreme Court on special leave Appeals by special leave under Article 136
3.43.	The wide scope of Article 136
3.44.	The question posed
3.45. - 3.47.	Recent amendment of Article 133
3.48.	The scope of Article 136
3.49.	Gist of the replies
3.50. - 3.52.	Other important suggestions on question 2
3.53.	Object of the Question
3.54.	No Amendment suggested
3.55. - 3.56.	Leave granted sparingly
3.57.	Lord Simon's observations
Chapter 4	Petitions for writs before The Supreme Court
4.1.	Introductory
4.1A. - 4.3.	Disputed questions of fact
4.4.	Gist of the replies
4.5.	There are a few other suggestions also. Views of some Judges of the Supreme Court
4.6.	Nature of the remedy under Article 32
4.7.	Remedy-a fundamental right
4.8.	Duty of Supreme Court in petitions under Article 32
4.9.	Nature of jurisdiction under Articles 32 and 226
4.10.	Relevance of statistics
4.11.	Petitions disposed of during 1969-70
4.12. - 4.13.	Statistic regarding institution and disposal of petitions
4.14.	Grant of Interim Stay
4.15.	Question 4
4.16.	Interim stay often prayed
4.17.	Recommendation in Report on C.P.C.
4.18.	Reasons for above safeguards
4.19. - 4.21.	Gist of the replies
4.22.	Trend of opinion
4.23.	Roles of Court
4.24.	No change recommended
Chapter 5	Petitions for writs before High Courts
5.1.	Taking Interim Stay
5.2.	Use of writ jurisdiction
5.3.	Writs and Subordinate legislation
5.4.	Writ jurisdiction and administrative orders
5.5.	Supervisory jurisdiction of High Courts
5.6.	Scope of the jurisdiction
5.7.	Interim relief in writs
5.8.	Complaint about frivolous petitions
5.9. - 5.10.	Statistics indicating the grant of ad interim stay in petitions
5.11.	Question 5
5.12.	Gist of replies
5.13.	Views of some Judges of the Supreme Court
5.14.	Stay explained
5.15.	Extent of power to issue writs
5.16.	Supreme Courts observations as to the power to issue writs
5.17	Interim stay without notice-effect of
5.18.	High Court's Power to grant interim stay discussed
5.19. - 5.20.	We have not come across any other judicial decision on the subject
5.21. - 5.22.	Position in the U.S.A.
5.23.	Three Judge Courts
5.24.	Recommendations in Law Commission's 54th Report
5.25.	Rules by High Courts
5.26. - 5.27.	Conclusion
5.28.	Recommendation
5.29.	Trial of disputed questions of fact Methods to reduce delay
5.30. - 5.32.	Supreme Court's view
5.33.	Number of Writ Petitions
5.32.	Questions of fact
5.33.	Discretion of High Court
5.34.	Supreme Court's view on High Courts powers to cross-examine
5.35.	Oral evidence
5.36. -5.37.	Recent cases
5.38.	Alternative remedy
5.39.	Summary of Supreme Court view
5.40.	Discretion of the High Court
5.41. - 5.42.	Gist of replies
5.43.	Broad propositions
5.44.	Rigid provisions not necessary
5.45.	Conclusion-no change needed
5.46.	Recommendation
Chapter 6	Matters Related to Taxation
6.1.	Importance of questions relating to taxation
6.2.	Question 7
6.3. - 6.4.	Three alternatives
6.5.	Object of inquiry
6.5. - 6.11.	Provision in Income-tax Act
6.12.	Gist of views expressed on the question
6.13.	Unanimity as regards replacement of reference by appeal
6.14.	National Tax Court
6.15.	Practicability considered
6.16.	Likelihood of large number of appeals
6.17.	Difficulty, if located at one place
6.18	Not recommended
6.19.	Article 226
6.20. - 6.21.	Observations of Lord Denning
6.22.	Article 136
6.23.	Substitution of appeal recommended in section 256
6.24. - 6.25.	Section 257, Income-tax Act
6.26.	Continuance of section 257 discussed
6.27.	Vexed problem
6.28.	Simultaneous reference not ruled out
6.29. - 6.31.	No reported cases
6.31.	Procedure not serving any significant purpose
6.32. - 6.34.	Substitution of appeal in section 257 considered inappropriate
6.35.	Resulting scheme
6.36.	Section 255(7) (New)-Judgments of Tribunals
6.37.	Reasons for recommendation
6.38. - 6.40.	Proceedings at the stage of Tribunal-truly judicial proceedings
6.41.	Special leave when can be obtained
Chapter 7	Disputes Concerning Industrial Relations
7.1.	Question 8
7.2.	Volume of industrial litigation and relevant statistics
7.3.	Difference of opinion revealed in the replies
7.4.	Paucity of replies from organisations of employers and employees
7.5.	Relevant considerations
7.6.	Importance of productivity
7.7.	Trade union movement in India compared with U.S.A. and U.K.
7.8.	History in India
7.9.	Rule 81A, Defence of India Rule
7.10.	Later Ordinance and Act of 1947
7.11. - 7.12.	Labour Appellate Tribunal
7.13. - 7.14.	Abolition of the Labour Appellate Tribunal
7.15.	Supreme Court
7.16.	Federal Court
7.17.	Importance of collective bargaining
7.18.	Three alternatives
7.19.	First alternative-National Appellate Court-difficulty in creation of
7.20.	Second alternative-Commission for Industrial Relations
7.21.	Third alternative-Labour Appellate Tribunal
7.22.	Recommendation
7.23.	Conclusion
Chapter 8	Disputes Relating to Services
8.1.	Introductory
8.2.	The civil service-the legal background
8.3.	Position in common law-Two balancing principles
8.4.	Security-the counter balancing principle
8.5.	Reason for rule barring action for wrongful dismissal
8.6.	Provision in England excluding jurisdiction of Parliamentary Commissioner
8.7. - 8.8.	Position in Commonwealth
8.9.	Aspects of Contract
8.10.	Contract of service under common law
8.11.	Service under Government
8.12.	Position in India before the Constitution
8.13.	Principle of pleasure contained under the Constitution
8.14.	Modification by statute
8.15.	Constitutional provisions relevant
8.16.	Special Courts
8.17.	Service disputes
8.18.	Constitutional safeguards
8.19.	Enforcement of safeguards
8.20.	Article 226-use of, in service matters
8.21.	Types of service matters
8.22. - 8.25.	Cases under (1) and (2) are the most numerous
8.26.	Supervisory jurisdiction-view as to
8.27.	Special Courts-merits
8.28.	Continental concept of public employment
8.29.	Greater protection and reduction of arrears
8.30.	Supervisory jurisdiction
8.31.	No likelihood of reduction of arrears if supervisory jurisdiction
8.32.	Existing rules regulate
8.33.	Likelihood of abuse
8.34.	Conclusion
Chapter 9	Zonal Courts of Appeal-proposal For Creation of
9.1.	Question 10
9.2.	Question 11
9.3.	Question 12
9.4.	Idea of Zonal Court
9.5.	Additional grounds in support of proposal for Zonal Courtsn
9.6.	Desirability of avoiding local pressures
9.7.	Importance of one language
9.8.	Views expressed on the proposal
9.9.	Proposal not favoured
9.10.	Problem of selection
9.11.	Socio-economic history of local legislation
9.12.	Objective of reducing docket of Supreme Court not likely to be achieved
9.13.	Sense of separateness likely to be created
9.14.	Question of language considered
9.15. - 9.16.	Conclusion
Chapter 10	Conditions of Service of Judges
10.1.	Introductory
10.2.	Conditions of service of lower judiciary
10.3.	Question 14
10.4.	Gist of views expressed on the question
10.5.	View of Supreme Court Bar Associatio
10.6.	Work of Administrative Service not under-estimated
10.7.	Prospects of promotion in administrative service
10.8.	Position of members of the Bar different
10.9.	Problems dealt with by administrative service not so complex
10.10.	Opinion of distinguished persons in democratic countries-Churchill's speech
10.11.	Silverman quoted
10.12.	Salaries revised in England since 1873
10.13.	Present salary in India not adequate
10.14.	Mansfield's view
10.15.	Increase in pofessional gains since Second World War
10.16.	Incitement to mutiny or other act of insubordination
10.17.	Role of judiciary in determining important questions of law
10.18.	Cohen's view
10.19.	Judges must possess vision
10.20.	Law as a dynamic instrument
10.21.	Crucial role of Judges
10.22.	Problems of arrears
10.23.	Likely consequence of refusal by members of the Bar
10.24.	Limitations of persons appointed from the subordinate judiciary
10.25.	Variety of experience gathered by members of the Bar
10.26.	Role of each complementary to role of other
10.27.	Present economic conditions not a deciding factor
10.28.	Recommendations
10.29.	Age of retirement of High Court Judge to be increased to 65 years
10.30.	Free unfurnished house or house rent allowance for High Court Judges
10.31.	Conveyance allowance
10.32.	Pension of Judges
10.33.	Pension to be granted to widow of sitting High Court Judge
10.34.	Pension of Chief Justice of High Court to be increased
10.35. - 10.36.	Medical benefits after retirement to High Court Judges
10.37.	Recommendation regarding Supreme Court Judges-increase in pension
10.38.	Medical aid after retirement to Supreme Court Judges
10.39.	Conveyance allowance to Supreme Court Judges
10.40.	Pension of Supreme Court Chief Justice
10.41.	Leave travel concession to be allowed every year to Supreme Court Judges
10.42.	No deduction to be made in allowing rail fare for purposes leave travel concession
10.43.	Recommendations should receive early consideration
10.44.	Contended Judiciary essential for Rule of Law
10.45.	Conclusion
	Summary of Recommendations and Conclusions
	High Court Judges
	Supreme Court Judges
Appendix 1	Rules of Some High Courts as to Interim Stay
	Andhra Pradesh1
	Calcutta1
	Punjab1
Appendix 2	Pre-1950 Position as to writs
	Pre-1950 Position as to writs
a.	Habeas corpus
b.	Certiorari
c.	Prohibition
d.	Mandamus
e.	Quo warranto
Appendix 3	Proposed1 Amendments2 in The Income-Tax Act, 1961
	Proposed1 Amendments2 in The Income-Tax Act, 1961
	Re-draft of certain sections of Income-tax Act
	Re-draft of section 259
	Re-draft of section 260
	(Section 260A (New)
	Re-draft of section 261
Appendix 4	Table Showing Answers to Question 8 of The Law Commission Questionnaire (as received from the Governments)
	Table Showing Answers to Question 8 of The Law Commission Questionnaire (as received from the Governments)
Appendix 5	Rules as to Disciplinary Proceedings against Government Servants in Some States
	Kerala
	Orissa
	Tamil Nadu
Appendix 6	Extract of Supreme Court Judges' T.A. Rules, 1959, as Amended
	Extract of Supreme Court Judges' T.A. Rules, 1959, as Amended