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Report No. 115

Judicial Administration as envisaged by Constitution

1.6. The judicial administration envisaged by the Constitution of India is one integrated pyramidic structure. Base level fora operating under different nomenclature cater to the needs of different types of persons in search of justice in relation to their disputes. There is generally a vertical hierarchy of courts in each branch. Historically speaking in some sections, there are number of stages of appeals e.g. direct tax laws, and in some others e.g. criminal cases, very few. Constitution provided for setting-up a High Court for each State. The jurisdiction of the High Court was so devised as to permit anyone aggrieved by the decision of different forum to invoke its jurisdiction for redressal of wrong. While invoking civil jurisdiction, the aggrieved party may reach High Court by way of a first appeal or a second appeal, as the case may be. In criminal matters, an aggrieved person can invoke the jurisdiction of the High Court by an appeal or a revision petition, as the case may be.

In the matter of direct taxes, the aggrieved person can approach the High Court by way of a reference as provided in section 256 of the Income-tax Act, 1961, section 26 of the Gift-tax Act, 1958, section 27 of the Wealth-tax Act, 1957, section 130 of the Customs Act, 1962 etc. An aggrieved person may as well invoke the jurisdiction of the High Court under Article 226 of the Constitution complaining of breach of fundamental rights or for any other purpose. The fall-out of this vertically structured administration of justice is that every conceivable type of legal dispute reached the High Court. If there are numerous inlets into one reservoir of work, there is bound to be accumulation and congestion of work unless the disposal outlet functions with equal if not higher speed. Experience shows that disposals did not keep pace with admissions.

1.7. Supreme Court stands at the apex of the judicial administration. It has been described as the sentinel on quivive. Its jurisdiction is so wide that it can reach and curb injustice perpetrated by any judicial or quasi-judicial or administrative tribunal. The jurisdiction of the Supreme Court of India can be invoked by any person aggrieved by a decision of the High Court or of any Tribunal, Article 136 of the Constitution confers very wide jurisdiction on the Supreme Court of India to grant special leave to appeal against any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or Tribunal in the territory of India. It has been conceded on all hands that Supreme Court of India enjoys the widest jurisdiction compared to any of its counterpart anywhere in the world. Add to this the original jurisdiction conferred on the Supreme Court of India under Article 32 of the Constitution to seek redress in the matter of violation of fundamental rights and the width and ambit of its jurisdiction can be gauged.

1.8. With the introduction of a Bill of Rights in the Constitution of India (Part III of the Constitution), a wind of change swept over the country. The sequitur of an awakening or awareness about one's own rights inevitably goads one to seek enforcement of the rights, meaning thereby, a resort to forum devised for the purpose for redress of grievance. Litigation was thus bound to multiply. Year after year, more, and more cases landed into the courts. The court system as in vogue prior to independence continued to perform its function according to the same leisurely process as it was doing during the colonial days. A wide gap developed between the incoming litigation and the outflow by way of disposals.

1.9. Independent India was bound to enact numerous laws for translating the goals of the Constitution into reality. Economic planning with the emphasis on industrialisation could focus attention on the resources of the country available for development programme. Direct and indirect taxes, the principle sources of revenue were bound to multiply. The Income-tax Act which had extended its coverage to a microscopic minority of the country till 1947, expanded its tentacles far and wide from year to year. The Wealth-tax Act made its appearance in 1957, the Gift-tax Act in 1958 and the ill-fated Estate Duty Act in 1953.

The First Schedule to the Central Excises and Salt Act, 1944, specifying the excisable goods on which duty of excise is levied and chapters of First Scheduled to the Customs Tariff Act, 1975 proliferated from year to year. Extensive coverage of tax laws coupled with the known human tendency not to pay or pay as much less as possible or recover as much as possible resulted in an avalanche of litigation in this branch of law, congestion was inevitable. It has acquired high visibility.

1.10. Numerous labour laws for ameliorating the conditions of work for assuring social security and for eliminating exploitation were enacted. Large number of labour courts and industrial tribunals were set up for obtaining relief under various labour laws. The organised industrial labour initiated numerous actions before such tribunals for seeking relief. As the pace of industrialisation increased, simultaneously adding to the strength of organised labour, the paradox of growing educated unemployment resulted in large number of actions coming before the labour and industrial tribunals.

1.11. The facility for higher education did not keep pace with the seekers of admissions to the institutions for scientific or technical education. Affirmative action under Article 15 of the Constitution by the State generated an area of conflict between the votaries of meritocracy and supporters of positive discrimination in favour of the members of the Scheduled Castes, Scheduled Tribes and other backward classes. Admission to the centres of higher education being an annual phenomenon, number of actions were initiated year after year seeking relief and redress in this behalf.

1.12. An exhaustive written Constitution may provide fruitful source of varying interpretation of its provisions. Specific enumeration of matters in Union List, State List and Concurrent List coupled with power of judicial review of legislative and executive actions brought to fore a new and hitherto unknown kind of litigation. No sooner the ink was dry on a legislative measure either Central or State, the court was moved on the allegation that it is Constitutionally invalid on diverse ground including legislative incompetence.

1.13. With the first flush of independence and an entrenched bill of rights coupled with conferment of jurisdiction on the High Court under Article 226 and Supreme Court of India under Article 32, numerous petitions were filed complaining contravention of fundamental rights. Till the deletion of Article 31 incorporating fundamental right to property read with Article 19(1)(g), every agrarian reform statute enacted by the State was challenged on the ground of contravention of fundamental right to property. Even acquisition of sick industries with a view to infusing fresh life into them did not escape the scrutiny by the court.

1.14. The inevitable fall-out of what is herein stated was a phenomenal increase in the causes and controversies coming before the High Court and reaching the Supreme Court via Article 136. The graph of pendency in each High Court without an exception rose from year to year. As the pendency piled-up, the period between the initiation of action and its final disposal expanded. Today it can be said that almost in any branch of litigation, if the matter moves vertically from the base level to the Apex court, the time spent averages between 15 to 10 years. Sporadic efforts at streamlining the procedure which was said to be the root cause of delay and increase in the manpower strength of the High Courts, did not make any dent in the mounting arrears. A shrill cry rose that 'justice delayed is justice denied'. It shook not only the Judiciary but also the Parliament. In paragraph 5 of the Statement of Objects and Reasons accompanying the Constitution (Forty-Fourth) Amendment Bill, 1976, a note of the situation was taken. It was said :

"To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio-economic development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under Article 136 of the Constitution. It is also necessary to make certain modifications in the writ jurisdiction of the High Courts under Article 226."

1.15. The assumption that the High Court ,the highest court at the State level with its all expansive jurisdiction, would be able to handle litigation coming to it from diverse sources, has been belied. A further upward revision of the strength of the High Court judges is likely to attract Parkinson's Law. Need for diversification in the matter of administration of justice, in specialist fields, is now keenly felt. Litigation arising under tax laws, so also under labour laws, educational activities necessitate a special skill to deal with it. It is not for a moment suggested that the Judges of the High Court would not be able to deal with the same, but frequent changes in benches, non-availability of benches round the year to deal with revenue matters and recurring phenomena of admissions to higher centres of learning could be better dealt with by a specialist body exclusively devoted to this work.

It will have two distinct advantages: (i) it would avoid repeated enunciation of the same principle over and over again by different benches, and (ii) citation of the precedents, a time consuming exercise, repeatedly before different benches. Additionally, it would provide continuity, consistency and certainty in the matter of relevant principles to be dealt with in such matters. It must be a judicial body composed of apart from judges of High Courts, legal technocrats such as legal academics, Vice-Chancellors of the Universities, experts, in labour law and experts in taxation laws as also those who have dealt with the subject for a long time. It will be a body composed of experts who, on account of their expertise, would accelerate the pace of handling the cases.



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