THE ECONOMIC WEEKLY SPECIAL NUMBER JULY 1959

The Law Commission Report K C Sen

T H E exis t ing legal system i n I n d i a is the product of a number of

L a w Commissions set up by the B r i t i s h Government, In the last century four L a w Commissions were appointed, the f irst being const i tuted in 1834 under the cha i rmanship of L o r d Macaulay, then L a w Member, and the f o u r t h being const i tuted in 1879. The t h i r d L a w Commission, presided over by L o r d R o m i l l y , re­commended the revision of the en­acted l a w "a t Intervals of on ly a few years" and the provis ion of "such new rules of l a w as m i g h t be required by the rise of new interests and new circumstances in the pro­gress of society". Acha rya , in his Tagore L a w Lectures in 1912, recom­mended the appointment of a Per­manent L a w Commission or a M i n i s t r y of Justice. In 1921 the Statute L a w Revision Commit tee and in 1923 the C i v i l Justice Com­mit tee were appointed. Other Com­mittees were appointed bo th by the Cen t ra l and the P rov inc i a l Govern­ments f r o m t ime to t ime. The latest of these Committees were the West Bengal Commit tee and the U t t a r Pradesh Commit tee set up in 1949 and 1950 respectively.

Per formed a Stupendous Task Since Independence suggestions

have been made in a n d outside Par­l i amen t for the appointment of a L a w Commiss ion . In 1964 an offi­c ia l resolut ion was moved in the L o k Sabha for appointment of such a Commiss ion " to recommend rev i ­sion and modernisa t ion of laws, c r i m i n a l , c i v i l and revenue, substan­t ive , procedural or otherwise to reduce the q u a n t u m of case-law-and to resolve the conflicts in the decisions of the H i g h Cour ts on m a n y t a i n t s w i t h a v iew to realize t h a t jus t ice i s s imple , speedy, cheap.

effective a n d substant ia l" . Th i s resolut ion was accepted by the Gov­ernment , w h i c h accordingly appoint­ed a L a w Commission consist ing of Shr i M C Setalvad, At torney-Gene­r a l of Ind ia , as the C h a i r m a n and ten other Members. The terms of reference were, firstly, to review the system of j ud i c i a l admin i s t ra ­t i o n and suggest ways and means fo r i m p r o v i n g i t and m a k i n g i t speedy and less expensive, and, secondly, to examine the Cent ra l Ac t s a n d recommend their revision, amendment and co-ordinat ion. The Commission was directed to func­t i o n in t w o sections corresponding to these t w o terms of reference. I t was appointed, in the f irs t instance, up to the end of the year 1956, but the period was extended f r o m t ime to t ime up to September, 1958, when the present Report was signed a n d submit ted to the Government of I n d i a .

Vast Volume of Arrears At the end of i ts Report the Com­

mission has observed: "The picture tha t has emerged f r o m the fore­go ing chapters is not encouraging. The state of affairs wh ich i t dis­closes shows in several respects neglect and disregard of the p r i ­m a r y functions of the State wh ich is the admin i s t r a t ion of justice." One question which has cast i ts d a r k shadow throughout the Com­mission's deliberations is the vast volume of arrears, not on ly in c i v i l bu t also in c r i m i n a l mat ters . The a l tered conditions in the count ry af ter Independence has led to a large volume of new legislat ion and in consequence an enormous i n ­crease in the load of w o r k carr ied by the courts, the increase being so great t h a t no admin i s t r a t i on could have fa i led t o notice i t There

was a persistent demand f r o m the H i g h Courts in some of the States for more jud ic ia l personnel and more courts, yet 'the admin i s t ra ­t ions concerned failed to realise their responsibil i ty in the ma t t e r . " Even before the t ransfer of power the a t ten t ion of the Centra l Govern­ment was d r a w n to the h e a v arrears in c i v i l courts by the R a n k i n Commit tee as far back as 1925; but no substant ial steps ap­pear to have been t aken in this direct ion. A g a i n , the H i g h Cour t Ar rea r s Committee considered this question in 1949, but i ts recommen­dations have been very inadequate­ly implemented. Lest a s imi la r fate should overtake the present Report, the Commission has recommended the appointment of a Special Officer for the consideration of i ts recom­mendations by the State Govern­ments w i t h a view to the i r speedy implementa t ion .

The question of arrears is a l l -pervading in th is Report, As re­gards the state of the Supreme Court 's f i le, the number of pending c i v i l appeals increased f r o m 131 in 1950 to 837 in 1956, the correspond­i n g numbers of c r i m i n a l appeals being 16 in 1950 and 241 in 1956 and those of petit ions under A r t . 32 of the Const i tu t ion ( for enforce­ment of fundamenta l r igh t s ) being 452 and 428 respectively. A number of such mat ters had been pending fo r 3, 4 or more years. The Com­mission believes t h a t despite the recent increase (since January 1957) in the s t rength of the Cour t f r o m 8 to 11 Judges it m a y not be able to clear the exis t ing volume of arrears. A large number of appeals are being f i led against decisions in labour mat ters , p a r t i c u l a r l y since the abo­l i t i o n o f the labour appellate t r i b u

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The Commission undertook and have performed a stupendous task. Its Fourteenth Report is in two bulky volumes running to 1282 pages. It issued a questionnaire consisting of 193 questions, examined about 500 witnesses, has considered all aspects of the present judicial administration in India, from the functioning of the Supreme Court to that of panchayats, considered such general questions as the separation of judicial and executive functions, language, legal education and legal aid, and specifically examined and made recommendations regarding the judicial administration. in each of the States of India.

It has made a large number of recommendations and given its considered opinions on numerous questions that arose in the course of its deliberations.

The Commission has considered the pros and cons of every question with care and detachment, incorporated its views in lucid and unambiguous language, and produced one of the most important Reports that have been made since Independence,

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nal. The Commission has recom­mended t h a t in such cases parties should be enabled to file appeals either to the H i g h Cour t or to a special t r i b u n a l const i tuted fo r the purpose.

Acute Problem for High Courts

As regards the H i g h Courts, the problem of arrears exists in a very accentuated f o r m in cer ta in H i g h Courts. There has been a large increase of w o r k d u r i n g the period fo l l owing the Const i tu t ion , o w i n g la rge ly to t w o causes: (1) the eco­nomic and indus t r i a l development of the country and (2) expansion of the courts ' special j u r i sd ic t ion under a va r ie ty of enactments. Other factors are the fundamenta l r i gh t s conferred by the Cons t i tu t ion and the complexi ty of recent legis la t ion in certain fields. There have been a large number of w r i t applicat ions and applicat ions quest ioning the cons t i tu t iona l i ty of enactments and rules f ramed thereunder. The g ra ­v i t y of the s i tua t ion appears to have been appreciated only recently, and the s t rength of the H i g h Courts has been increased by the add i t ion of p a r t l y permanent and p a r t l y addi ­t iona l Judges. As to the arrears, the Commission has la id down cer­t a i n t ime l im i t s fo r the disposal of different categories of cases—for first appeals two years, for second appeals and letters patent appeals one year and for w r i t s c i v i l revis ion petit ions and c r i m i n a l mat te rs six months f r o m the date of i n s t i t u t i on

and has a t tempted to recommend effective measures for deal ing w i t h the arrears so as to b r i n g the pend­ing file of each Cour t to n o r m a l proport ions w i t h i n the shortest possible t ime. A m o n g such mea­sures m a y be mentioned the fo l low­i n g :

(1) Appo in tmen t of add i t iona l judges fo r the specific purpose of dea l ing w i t h ar rears ;

(2) Ra is ing the pecuniary l i m i t of the appellate ju r i sd ic t ion of dis­t r ic t judges to Rs 10.000 in a l l the States; and consequent t ransfer of appeals to d i s t r i c t courts f r o m the H i g h Courts ;

(3) M e r i t to be the sole c r i t e r ion in the choice of Judges to be ap­pointed; the crea t ion of an ad hoc body presided over by the Chief Justice of I n d i a to d r a w up a panel of names of sui table persons f rom the Bar as w e l l as the service in each State;

(4) The s t rength of each H i g h Cour t to be brought up to the level required for deal ing w i t h the n o r m a l ins t i tu t ions of cases, to be revised every t w o or three years;

(5) Avoidance of delay in f i l l ing vacancies and of deputat ion of Judges for non- judic ia l w o r k .

I t has been noticed t h a t in some cases the Chief Justices, conscious of the g r o w i n g accumula t ion of w o r k , have t r i ed to ob ta in addi­t iona l judges fo r the i r Courts, but the i r efforts have been defeated "by a baff l ing procedure." The Com­mission has recommended the g r o w t h of a convention t h a t i f the Chief Justice of a State makes a request for the appointment of addi­t iona l judges and if the need for such addi t iona l judges is accepted by the Chief Justice of Ind ia , the Chief Jus t ices request should be acceded to,

A committee, called the H i g h Court A r r e a r s Committee, was set up in 1949 under the Cha i rmansh ip of the present Chief Justice of Ind i a . I t recommended, a m o n g other things, tha t the H i g h Courts increase the i r w o r k i n g days to 200 per year. The m a t t e r was taken up at t w o conferences of Chief Min is te r s in 1957 and at the L a w Minis te r s ' conference in the same year. As a result m a n y of the H i g h Courts have reduced the length of their vacations and holidays so as to have 210 w o r k i n g days a year. Since 1956 35 judges have been added to the var ious H i g h Courts, so tha t the pace of c lear ing arrears has been accelerated. S t i l l the n u m ­ber of pending cases increased f r o m 1,70,000 at the end of 1956 to 1,78.000 at the end of 1958. B u t out of the 1,70,000 cases pending at the end of 1956 only 64,500 cases s t i l l remained pending by the end of 1958.

In Lower Courts

As regards the m u n s i f s courts, the subordinate judges' courts, the smal l cause courts and c r i m i n a l courts, the Commiss ion has given i t s estimates of the average dura­t i on w h i c h cases of different descriptions should take in their t r i a l , so t h a t cases t a k i n g longer t ime w o u l d be classed as arrears, a l t hough different H i g h Cour ts i n ­terpret the expression di f ferent ly . On the whole the s t r eng th of the j u d i c i a l officers m a y be considered adequate to cope w i t h the current

Ins t i tu t ions , but intensive efforts are necessary to r i d the files "the incubus of o l d suits, w h i c h has assumed a l a r m i n g proportion) in several States.' '

The d i s t r i c t judges' Courts have been unable to keep pace even w i t h the current ins t i tu t ions in most States, w h i c h suggests t h a t the ex is t ing s t reng th of these courts is inadequate. The Commission is of the v iew t h a t it is necessary to establish in most of the States t em-pora ry addi t iona l courts for suet periods of t ime as may be neces-sary. Recent legislat ion has con­t r ibu ted to the g r o w i n g volume of w o r k , e g, the Employees State Insurance Ac t , Displaced Persons (Compensation & Rehab i l i t a t ion) Ac t , the A d m i n i s t r a t i o n of Evacuee Proper ty Act , the L a n d Reforms Ac ts and the H i n d u Marr iage Act ,

The inadequacy of the s t rength of the subordinate j ud i c i a ry has been pointed out by the H i g h Courts f r o m t ime to t ime in the i r admi ­n i s t r a t ion reports, pa r t i cu l a r l y by the H i g h Courts of the M a d h y a Pradesh, U t t a r Pradesh, West Ben­gal and Orissa. The H i g h Courts have f r o m t ime to t ime made repre­sentations to the Government ask­i n g for an increase in the cadre of the subordinate jud ic ia ry . The U P Judic ia l Reforms Commit tee specifically dealt w i t h th is ques­tions a t length, say ing t h a t " i t was impera t ive ly necessary, before the entire admin i s t r a t i on of justice col ­lapses because of the tremendous weigh t of arrears ," to increase the cadre of j ud i c i a l officers considera­b ly . The H i g h Cour t o f A l l a h a b a d recently emphasised th is need and recommended the add i t ion of about 85 officers to prevent the arrears i n ­creasing. S i m i l a r observations have been made by the Chief Justice of West Bengal . The Commission has found tha t on the one hand, there has been a gross neglect by the State a d m i n i s t r a t i o n of the i r d u t y in es tabl ishing the necessary n u m ­ber of courts and on the other, a complete fa i lure on the p a r t of the State to c a r r y out i t s obl iga t ions to provide t ra ined and proper j u d i c i a l personnel fo r presiding over the courts. The States in question can­not even urge f inancial s t r ingency as an excuse, fo r they have been m a k i n g subs tan t ia l ga ins o u t o f the revenue earned fey t h e m by w a y of cour t fees. The Commission has suggested t h a t the H i g h C o u r t m a y

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THE ECONOMIC WEEKLY SPECIAL NUMBER JULY 1959

be general ly empowered by the State Governments to create addi ­t i o n a l courts subject to ce r ta in l i m i t s whenever they consider t h a t add i t iona l w o r k justif ies the crea­t i o n of a new court .

Decline in Standards As regards personnel, the Com­

mission has found unmis takab le tes t imony t h a t the standards of the j ud i c i a l officers have, d u r i n g recent years, sadly de­clined, for a va r i e ty of reasons, e g, d ivers ion of ta lent to profes­sions other t h a n law, appointment (specially in the Southern States) on communa l or regional grounds, inadequate remunera t ion in compa­r i son w i t h the executive branches of the Government , difference of status between the jud ic i a l and the executive officers. An experienced Chief Justice observed: "Vis-a-vis the d i s t r i c t magis t ra te , the d i s t r i c t judge feels smal l , and is t reated as a person of l i t t l e consequence". The Commiss ion has observed, "Those w h o do s t r ive to get in to the j ud i c i a l service af ter 3 to 5 years at the B a r are disappointed persons who have fa i l ed to make a l i v i n g in the profession and have no hopes of prospering in i t " .

The Commiss ion has made a num­ber of recommendat ions for i m ­p r o v i n g th is state of affa i rs ; some of t h e m are g iven below:

(1) There should be t w o classes of j u d i c i a l officers, viz, d i s t r i c t judges and other officers of equiva­lent status, and subordinate j u d i ­c ia ry ;

(2) Recru i tment to the l a t t e r class should be on the basis of a compet i t ive examina t ion conducted by the Public Service Commission, a H i g h Cour t Judge h a v i n g a prepon­de ra t ing voice being associated for the v i v a voce test; the persons re­crui ted should be given intensive t r a i n i n g for six months to 1 year;

(3) An a l l - I n d i a Judic ia l Service should be created who should man 40 per cent of the posts of the h igher j ud i c i a ry in each State, the r e m a i n i n g 60 per cent being t i l led in by p romot ion f r o m the State Ju­d ic ia l Service and by direct recrui t ­ment f r o m the Bar . Officers of th is Service should n o r m a l l y be a l ­lo t t ed to States other t h a n thei r home States. They should be t r a i n ­ed for a per iod of t w o years. T h e i r emoluments should be the same as those o f the I n d i a n A d m i n i s t r a t i v e Service;

(4) A r t i c l e 235 of the Cons t i tu ­t i on should be amended so as to vest in the H i g h Cour t the power o f pos t ing and promot ion o f d i s t r i c t judges,

Severe Strictures The Commiss ion has been con­

s t ra ined to make s t rong r e m a r k s r ega rd ing (1) several unsa t i s fac tory appointments made to the H i g h Courts on po l i t i ca l , regional or other grounds, w i t h the result t h a t the fit test men have not been appointed, and (2) the H i g h Cour ts ' prestige h a v i n g been adversely affected by i l l - i n fo rmed c r i t i c i sm of the j u d i c i a r y by responsible persons. The Com­mission states, "We have vis i ted a l l the H i g h Cour t centres and on a l l hands we have heard b i t t e r and reveal ing c r i t i c i sm about the ap­poin tment made t o H i g h Cour t j u ­d i c i a ry d u r i n g recent y e a r s . . . . T h e almost universal chorus of com­ment is tha t the selections are un ­sat isfactory and tha t they have been induced by executive influence." Such views have been regarded as showing a wel l - founded and acute public dissat isfact ion at these ap­pointments . The machinery p rov id ­ed by the Cons t i tu t ion in a r t i c le 217 for the appointment of H i g h Court judges has been found f au l ty and open to abuse. Cer ta in appoint­ments have been made in recent years against the recommendat ion of the Chief Justice. A Judge of a H i g h Cour t has stated:

" I f the State M i n i s t r y (Minis te r in the State Government ) continues to have a powerfu l voice in the mat ter , in my opinion, in ten years ' t ime or so. when the last of the Judges appointed under the old sys­tem w i l l have disappeared, the i n ­dependence o f the j ud i c i a ry w i l l have disappeared, and the H i g h Courts w i l l be filled w i t h Judges who owe thei r appointments to po­l i t i c ians ," T r u l y a d i smal prospect!

Amendment of Article 217 The Commission has suggested

the amendment of a r t ic le 217 of the Cons t i tu t ion so as to provide t h a t a Judge of a H i g h Cour t should be appointed only on the recommen­da t ion of the Chief Justice of the State and w i t h the concurrence of the Chief Justice of I n d i a . Other recommendations are: (1) t h a t the Chief Justice of a H i g h Cour t should be appointed w i t h the concurrence of the Chief Justice of I nd i a , (2) t h a t a Judge should be bar red f r o m pract ice and any employment other

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t han as a Judge of the Supreme Cour t af ter re t i rement under the Union or the State, (3 , t h a t the re­t i r i n g age should be raised to 65 in the case of appointments to be made hereafter and (4) t h a t the ex i s t ing pensions, wh ich are inade­quate, should be raised to Rs 2000 per m o n t h ( in the case of the Chief Justice) and Rs 1750 per m o n t h ( in the case of Puisue Judges) for 12 years of service. In the case of the Supreme Cour t also an increase of pensions has been recommended, namely, Rs 3000 and Rs 2500 per m o n t h respectively fo r the Chief Justice and other Judges, it also being recommended tha t they should be barred f r o m practice or employ­ment under the Un ion or a State after re t i rement .

As regards the Supreme Court also, " i t is widely fel t t h a t com­m u n a l and regional considerations have prevailed in m a k i n g the selec­t i on of the Judges", so tha t the best ta lent among the Judges of the H i g h Cour ts have not found thei r way to the Supreme Court . This , according to the Commission, has prevented the Supreme Court f r o m being look­ed upon by the Subordinate Court and the public generally w i t h tha t respect and reverence to which it is ent i t led .

Prestige of Judges Lowered Under the Const i tu t ion our Su­

preme Cour t does no t possess such wide powers as are enjoyed by the Supreme Court of the U S A. A comparison of Art ic les 21, 33, 31A and 31B of our Cons t i tu t ion w i t h the F i f t h amendment to the A m e r i ­can Cons t i tu t ion sufficiently shows th is . Under Ar t i c l e 21 no person shal l be deprived of his l ife or per­sonal l ibe r ty "except according to procedure established by l aw" ; s imi l a r ly , S 31 begins, "No person shal l be deprived of his proper ty save by a u t h o r i t y of l a w ' . The F i f t h Amendment says t ha t no per­son shal l be deprived of his l ife, l i be r ty or property " w i t h o u t the pro­cess of l a w , " The words "process of l a w " do not occur in our Consti­tu t ion , bu t have been g iven such a l ibe ra l in te rpre ta t ion by the A m e r i ­can Supreme Cour t as to en­able i t t o inval ida te laws w h i c h m a y be found to offend against the ' sp i r i t of the Cons t i tu t ion ' . B y our F i r s t Amendmen t t o the Cons t i tu t ion , no l a w p rov id ing fo r the acquisi t ion by the State of any estate or of r igh t s therein

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THE ECONOMIC WEEKLY SPECIAL NUMBER JULY 1959

"shall be deemed to be vold on the g r o u n d t h a t i t i s inconsistent w i t h the r igh t s conferred by any p rov i ­sion r ega rd ing fundamenta l r i gh t s . " The object of th i s amendment was to va l ida te the acquis i t ion of zamin-dar is a n d the abo l i t i on of the Per­manent Sett lement w i t h o u t in ter­ference f r o m the courts. Thus f r o m the beginning the f inal a rb i t e r of the citizens' r igh t s , in spite of the fundamenta l r igh t s , has been Par­l iament , and the Courts are em-powered merely to in te rpre t and give effect to the l a w enacted by the legislature, w h i c h have in many enactments w h i t t l e d down the fun damenta l r igh t s . Since Independ ence, again, a good deal of legisla­t i o n has been "delegated leg i s la t ion" enacted by the r u l e - m a k i n g autho­r i t ies , i e, the U n i o n and the States, and the courts have l im i t ed autho­r i t y in this f i e ld . Re fe r r ing to cer ta in legis lat ions passed by the State of Bihar , a Chief Justice of I n d i a was const ra ined to observe: "Legis la ­t i on such as we have now before us is calculated to d r a i n the v i t a l i t y f r o m the Rule o f L a w w h i c h our Cons t i tu t ion so u n m i s t a k e n l y pro­claims, and is to be hoped t h a t the democrat ic process in this count ry w i l l not func t ion a long these lines." When , however, any enactment or ru le has been found by the Courts to be u l t r a vires, the Government has not been slow to get a va l ida t ­i n g enactment often w i t h retrospec­t ive effect, passed by the legislature. T h a t the Government is aware t ha t the public have f a i t h in the impar­t i a l i t y of Judges is shown by the i r appoin tment for enquiry in to cases o f police f i r i n g and other i m p o r t a n t ma t te r s r equ i r i ng careful and un­biased s i f t i ng of the evidence; but the Government has of ten been un­able to accept the findings in such cases, thus in a w a y n u l l i f y i n g the ra t iona le of such enquiries by a. H i g h Cour t or Supreme Cour t Judge, The Commiss ion has observed t ha t i t has become usual a m o n g p o l i t i ­cians a t the Centre and in the States, wh i l e p a y i n g lip-service to the ma­jes ty a n d d i g n i t y of the law, to de­c r y the Judges as s i t t i n g in an " i v o r y tower" a n d f a i l i n g to keep pace w i t h w h a t the poli t ic ians t h i n k are progressive ideas of the t imes. Selection of persons by the executive as Judges on improper grounds has a l ready been commented upon. These circumstances have combined to lower the prestige of the Judges in the eyes of the public, the legis­

l a tu re and the executive govern­ment .

T h i s is no t a desirable state of affairs I t can be remedied, a t least to some extent, by (a ) select­i n g the mos t suitable persons fo r appointment , (b) l eav ing no scope fo r expectations in the minds of the Judges, before or af ter the i r re t i re­ment, of employment by the Un ion or the State, (c) compensat ing them by increased pensions a n d ra i s ing the r e t i r i n g age o f H i g h Court Judges to 65, (d) m a k i n g the H i g h Courts w h o l l y responsible for j u d i ­c ia l a d m i n i s t r a t i o n of the States, (e) g i v i n g d i s t r i c t judges the same status and scale of pay as d i s t r i c t magis t ra tes and collectors, w i t h the status a n d pay of other members of the j u d i c i a r y corresponding to those of other members of the exe­cutive, ( f ) resort to v a l i d a t i n g acts, p a r t i c u l a r l y w i t h retrospective effect, fo r o v e r r i d i n g j ud i c i a l decisions on ly in cases of real and extreme neces­s i ty ; and (g) abstent ion on the pa r t of the executive and members of the legislature f r o m c r i t i c i s m of the j ud i c i a ry in public.

Complex Procedural Law I have discussed only a few of

the numerous questions dealt w i t h by the Commiss ion. The lay public is not interested, or equally interest­ed, in a l l the other questions discus­sed in its vo luminous Report . I t is m a i n l y interested in the question of delay in the decision of cases (and in execution proceedings) and in the cost of l i t i g a t i o n . A par t of the f irst question has a l ready been dealt w i t h in considering the ques­t i o n of arrears, r ega rd ing w h i c h the recommendat ions of the Commis­sion are eminen t ly proper and sound. There is, however, the question of the complex procedural l a w inher i t ­ed by us f r o m the pre-Independence days, such l a w being la rge ly model­led on Eng l i sh practice a n d inspired by the principles of E n g l i s h law. I t has often been asserted t h a t our laws of c i v i l and c r i m i n a l procedure are unnecessarily complicated and t ime-consuming. The provisions of the C i v i l Procedure Code are based on the theory t h a t there mus t a f u l l disclosure by each p a r t y of his case to the other, t h a t r i v a l content ions mus t be reduced to clear issues and t ha t there mus t be adjudica t ion by the Cour t upon those Issues. " A l l responsible and experienced per­sons" who answered the Commis­sions quest ionnaire or gave evidence

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before i t agreed t h a t the Code of C i v i l Procedure is a careful ly de­vised enactment, the provisions of wh ich , i f proper ly fol lowed, are de­signed to expedite r a the r t h a n delay the disposal of cases. There is no doubt t h a t in many cases delay is a t t r ibu tab le to numerous extraneous a n d personal factors, l ike an ineffi­cient jud ic ia ry , insufficient number of j ud i c i a l officers, incompetent and cor rup t min i s t e r i a l and process-serv­i n g agency, de lay ing tactics delibe­ra t e ly adopted by parties and t h e i r lawyers , unmethodica l a r rangement of w o r k by the presiding judge a n d heavy files of arrears . The Com­mission in the i r Chapters headed " T r i a l o f Suits ' ' " C i v i l Appeals", " C i v i l Appel la te Procedure", " C i v i l Revis ions" and "Execut ion of De­crees", have examined the proce­dures r e l a t ing to these mat te r s and made a large number of recommen­dations which , i f adopted, w o u l d no doubt appreciably abbreviate de­lays.

Pre-trial Conference Conci l ia t ion proceedings exist in

France, Japan and N o r w a y , bu t no t in our coun t ry under the Code of C i v i l Procedures. Under such p ro ­cedure, if a sett lement is a r r i v e d at between the parties t h a t disposes of the case w i t h o u t the m a t t e r g o i n g to a c i v i l court . In the Un i t ed States there is provis ion for a pre­t r i a l conference in the Rules of C i v i l Procedure for D i s t r i c t Courts, ac t ion thereunder being d iscre t ionary w i t h the Court . The sett lement of la rge parts of the cases for t r i a l by such procedure has been claimed by Mr A r t h u r T . Vanderb i l t , Chief Justice of the State of N e w Jersey, in h i s book "The Challenge of L a w Re­f o r m " . The Evershed Commit tee i n E n g l a n d examined this procedure but decided against i t ; and the Com-mission, too, has a r r i v e d at the same conclusion r ega rd ing its ap­p l i c ab i l i t y t o I n d i a n condit ions. U n ­der the present Code the t r i a l Judge is no t precluded f r o m ac t i ng as a conci l ia tor . I t i s open to h i m , a t an appropriate stage, to make a sug­gestion for, and to b r i n g about, a compromise. A Judge, specially in the mofussi l , who tr ies to induce parties to come to an amicable set­t lement , however, is apt to be m i s ­understood as a sh i rker seeking a shor t -cut in the disposal of his cases. There can be l i t t l e doubt t h a t the procedure is open to abuse, fo r if a Judge appears to favour one of the

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part ies i t m a y be considered expe­dient for the other p a r t y to com­promise his case.

A l l the same, i t seems desirable t h a t at least in the courts of cer tain selected judges, the method of pre­t r i a l conferences adopted in A m e r i ­ca should be given a f a i r t r i a l for a few years. This system m a y not result in t o t a l sett lement but are m a i n l y intended to discover a l l laces and documents wh ich are admi t ted or uncontroverted, wha t each pa r ty expects to prove and wha t issues r ema in to be proved at the t r i a l . I t has been said tha t the success of p re - t r i a l conference depends for the most par t on the personali ty of the Judge and his wi l l ingness to deal a n d apti tude for deal ing w i t h such proceeding. Tha t is w h y it has been recommended above t ha t this me­t h o d m a y be t r i ed in the courts of cer ta in selected judges in this coun­t r y . Of course, there is a r i sk of the procedure becoming unnecessar­i l y elaborate or developing in to a •fishing expedition' ; but we believe t h a t in spite of such r i sks i t should be g iven a fa i r t r i a l on a l i m i t e d scale. Only af ter it has been so t r i ed can it be said whether it is suitable for adoption in th i s count ry or not.

Quasi-judicial Tribunals

A number of admin i s t r a t i ve or quasi- judicial t r ibunals have been ins t i tu ted th roughout the count ry , m a i n l y out of considerations of ex­pediency and cheapness. In this connection the Commission has examined the systems tha t have g r o w n up in this f ie ld in E n g l a n d and the U n i t e d States and examined at l eng th the French system of d ro i t admin i s t r a t i f , which is a dis t inct chapter of law, applicable not only to the public service but also to a l l disputes between the Government or its servants and pr ivate citizens. The Uni t ed States has an Admin i s ­t r a t i v e Procedure A c t . I n Eng land the Donoughmore Commit tee was appointed in 1929 to examine the problem of delegated legislat ion and the powers exercised by persons or bodies appointed especially by the Min i s te r s . In 1955 a Committee under the Cha i rmansh ip of R i g h t Honourab le Sir Pa t r i ck Spens under took a s tudy of the problem, the object being " to reconcile free­dom and justice fo r the pr ivate citizen w i t h the necessities of a modern Government charged w i t h the p romot ion of f a r - r a n g i n g social

and economic policies." Th i s Com­mit tee reached the conclusion t ha t it was necessary to create a new divis ion of the H i g h Court of Jus­tice to be called the A d m i n i s t r a t i v e Div i s ion presided over by a H i g h Court Judge. In November 1955 a Commit tee presided over by Sir Oliver F r a n k s was appointed for the considerat ion o f A d m i n i s t r a t i v e T r i ­bunals, I t reached the v iew tha t as far as possible, adjudicat ions i n ­v o l v i n g the admin i s t r a t i on and the i nd iv idua l ci t izen should preferably be left to the o rd ina ry courts of l aw ra ther than to a t r i b u n a l or to a Minis te r , except where, for rea­sons of cheapness, accessibility, freedom f r o m technical i ty , expedi­ency and expert knowledge of a pa r t i cu la r subject, a t r i b u n a l may be considered more appropriate .

The number of admin i s t r a t ive author i t ies in Ind i a , purely adminis­t r a t i v e as wel l as quasi- judicial , is very large; they include t r ibunals and other authori t ies deal ing w i t h revenue and t axa t i on laws, labour and l and laws. The provisions re la t ­ing to j ud i c i a l con t ro l o f admin i s t r a ­t ive process are enshrined in Ar t i c l es 32, 136, 225 and 227 of the Const i ­tu t ion , the f i rs t two g i v i n g the Su­preme Cour t the power in ter a l la to issue prerogat ion w r i t s for enforc ing fundamenta l r igh t s and plenary powers to en ter ta in appeals f r o m orders o f any t r i b u n a l ; whi le A r t i ­cles 226 gives the H i g h Courts the power to issue directions or w r i t s not only for enforc ing fundamenta l r ights but " fo r any other purpose", and A r t i c l e 227 gives the H i g h Courts powers of superintendence. The Commission has made cer ta in recommendat ions r ega rd ing deci­sions which m a y be regarded as j u ­dic ia l or quasi- judicia l and as admin i s t r a t i ve decisions; namely, tha t in the case of the f i rs t category an appeal on facts should lie to an independent t r i b u n a l presided over by a person qualified to be a judge of a H i g h Cour t ; and an appeal or revision on questions of l a w should lie to the H i g h Cour t ; a n d t h a t in the case of the second category the de­cisions should be accompanied by reasons and should c o n f o r m to principles o f n a t u r a l just ice. I t i s not quite clear w h y the Commission has advocated exclusion f r o m the scope of the appeal to the t r i b u n a l , in the case of the first category, of questions of l aw; not on ly m a y this be diff icul t where a question in dis­pute is a m ixed question of l a w and

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fac t , but the s p l i t t i n g up of ques­t ions of l a w and fac t in this manner , when an appeal Is made to a com­petent t r i b u n a l , wou ld appear also to be otherwise an undesirable proce­dure.

Delegated Legislation The l a w tha t many t r ibuna ls have

to adminis ter largely consists of delegated legislat ion, i e, rules f r a m ­ed by Government , so tha t the le­gis la ture has l i t t l e pa r t in the enactment of a substant ia l p a r t of the l aw applicable, w h i c h is lef t in the hands of the executive. The L o k Sabha has established the "Commit tee on Subordinate Legis­l a t i o n " for sc ru t iny of such legisla­t i o n after publ icat ion. Th i s Com­mittee has no doubt per formed and is pe r fo rming very useful functions. S imi la r Committees have been con­s t i tu ted by several of the State Legislatures, The Commission has recommended tha t a permanent body of experts should be set up fo r examin ing delegated legislat ion before its publ icat ion and before it is la id on the Table of the House. An i m p o r t a n t par t o f its functions should be to see that undue complex­i t y is avoided and tha t the rules should not encroach on matters* which ought more properly be dealt w i t h by the legislature itself. M a n y of the Acts passed since Independ­ence have left a very large part of the legis lat ion to be made by the ru l e -mak ing a u t h o r i t y ; th is v i r t u a l ­ly amounts to abdica t ion of i ts l aw­m a k i n g powers on the par t of the legislature in favour of the execu­t ive government . Circumstances may render such procedure necessary in cer ta in technical fields; but there is no doubt that such a tendency on the par t of the legislatures has been indulged in excess and tha t an eff­ective check on such practice wou ld be the i n s t i t u t i on of such expert committees at the Centre and in the States as have been recommended by the Commission.

Expense of Litigation One m a t t e r wh ich specially con­

cerns the average l i t i g a n t is the question of expense. The costs awarded by courts to the successful p a r t y are usual ly a sma l l percent­age of the costs ac tua l ly incur red . The items of expenditure cons t i tu t ­i n g the great bu lk of the out-of-pocket expenses of a l i t i g a n t are cour t fees and the lawyer ' s fee. A successful l i t i g a n t of ten pays h igher fees to his l awyer t h a n he gets f r o m

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his opponent on t a x a t i o n . The costs awarded by Cour ts do not include several i tems of expenditure incur ­red, e g, notice charges, t y p i n g charges (except in West Bengal and B i h a r ) , charges incurred in securing documentary evidence such as (ex­cept in West Bengal and B i h a r ) search fees and copying charges, coats of the par ty 's own attendance. The Commission has recommended the inclusion of such i tems in the costs taxed.

The Commission has regarded cour t fees so . impor t an t as to m e r i t a separate chapter. I n d i a appears to be the only count ry in w h i c h the Government imposes a t ax on per­son seeking a remedy against the depr iva t ion of his property or i n ­f r ingement of his legal r ights . "Our States", says the Commission, "pro­vide hospitals wh ich give free treat­ment to persons who are physical ly afflicted. Bu t if a person is in jured in the ma t t e r of his fundamenta l or other legal r ights , we bar his ap­proach to the Courts except on pay­ment of a heavy fee". The fee charged is so excessive tha t it pays not only for the entire cost of the admin i s t r a t i on of c i v i l justice but also the cost of prosecuting and punishing c r imina l s for crimes w i t h w h i c h the c i v i l l i t i g a n t has no con­cern.

The Cour t Fees Ac t of 1870 fixed w h a t may be described as a moder­ate scale of court fees. Since then the f inancia l needs of the govern­ment have g r o w n enormously. I n most of the States the increase has been " to an oppressive lever ' so tha t the fee is no longer a fee but a heavy tax .

The admin i s t r a t i on of justice is one of the fundamenta l functions of the State. A l i t i gan t should be en t i t led to seek justice at as l i t t l e expense as possible, for it is the du ty of the State to enable every ci t izen to assert his legal r igh t s agains t fel low citizens and the State. U n f o r t u n a t e l y the view of the State Government seems to be t h a t the court fee is an ideal source of revenue, w h i c h can be collected w i t h o u t any diff icul ty and made avai lable for the purposes of general admin i s t r a t i on . Step by step every State Government has raised the cour t fees higher and higher t i l l the rates have reached a l a r m i n g l y h i g h figures. A fo rmer Chief Justice of Madras has observed t h a t when he came to I n d i a he "was amazed by

the H i g h Cour t fees w h i c h the l i t i ­gants were called upon to pay". In the State of Bombay the t o t a l real­isat ions of revenue f r o m bo th c i v i l and c r i m i n a l courts was Rs 1,99,65,385 in 1953-54 and the t o t a l expenditure in the same year fo r the maintenance of c i v i l and c r i m i n a l courts was Rs 1,98,72,274. The re­ceipts a m o u n t i n g to Rs 1,99,65,385 included Rs 1,22,51,290 realised f r o m court fees. The Commission has characterised as mis taken the view of the T a x a t i o n E n q u i r y Commis­sion t ha t the admin i s t r a t i on of justice as a whole d id not pay its w a y and t h a t a pa r t of i ts costs had to be borne by the general revenues.

Thus to an honest l i t i g a n t the courts of justice w o u l d appear to wear a stern and fo rb idd ing f rown instead of an aspect expressing an anxious interest in the dispensation of just ice. Nei ther in the Uni ted K i n g d o m nor in the Uni ted States does a system of levy of cour t fees graded on the stake in act ion pre­va i l , except for a few items in the Un i t ed K i n g d o m where ad valorem fees are charged. General ly speak­ing , in bo th countries a simple i n i ­t i a t i n g fee is charged in most cases, to w h i c h another fee k n o w n as the " se t t l ing-down" fee is added in the Un i t ed K i n g d o m at a later stage of the t r i a l . The Commission has re­commended the immediate accept­ance of the principle adopted in E n g l a n d t h a t the cost of the j u d i ­c i a ry should be looked upon as a charge to be borne by the general t a x payer and tha t the r ema in ing cost of the admin i s t r a t ion of c iv i l justice on ly should be borne by fees paid by the c i v i l l i t igan t s . This ap­pears to be a most sa lu tary recom­mendat ion and the sooner it is given effect to the better. There is no jus t i f ica t ion in principle for not adopt ing the practice which obtains in the Uni ted K i n g d o m , for the ex is t ing practice in this country, complicated as it is by great dispa­r i t ies in the rates adopted in differ­ent States, amounts merely to an i r r a t i o n a l imposi t ion .

Ministry of Justice In the last chapter of its Report

the Commission has recommended the establishment of a M i n i s t r y of Justice at the Centre, a l though the admin i s t r a t i on of justice is, under the Cons t i tu t ion . the exclusive con­cern of the State Governments, w i t h the exception of the cons t i tu t ion and organisa t ion o f H i g h Courts a n d a l l

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matters r e l a t ing to the Supreme court . In these last mat te rs there is a divis ion of the functions of the Cent ra l Government, a p a r t f a l l i n g w i t h i n the purview of the M i n i s t r y of Home Affa i r s and a pa r t w i t h i n tha t of the M i n i s t r y of L a w . Th i s d ivis ion appears to have t aken place first in the days when the por t fo l io of l a w was held by an I n d i a n M e m ­ber of the Governor-Generals Exe­cutive Council , whi le Home Af fa i r s were the concern of a European Member, who was in charge of l aw and order and the appointment of judges to the H i g h Courts. I t has been recommended tha t the M i n i s ­t r y of Justice should assume cont ro l of the I n d i a n Judicia l Service whose creation the Commission has re­commended, and should be charged w i t h the task ensuring t ha t the H i g h Courts possess adequate and competent personnel. I t has also been suggested tha t c iv i l and c r i m i ­nal procedure and the legal profes­sion migh t be dealt w i t h by this M i n i s t r y . I t may be necessary to amend the Cons t i tu t ion so as to give a greater measure of cont ro l to the Centre over the admin i s t r a ­t ion of justice in the States and if such amendment be made, this M i ­n i s t ry m i g h t be entrusted w i t h such functions.

In England, also, the admin is t ra ­t ion of justice is divided, m a i n l y for h is tor ica l reasons, between the L o r d Chancellor and the Home Secretary, This recommendation of the Com­mission is intended to do away w i t h an archaic and i l legal d ivis ion of functions at the Centre and de­serves consideration and implemen­ta t ion at an early date.

The L a w Commission of I n d i a is to be complimented on its careful and detailed Report con ta in ing a large number of useful suggestions and recommendations. This review is already too lengthy to admi t of any discussion of a number of ques­tions of some importance, e g, l an­guage, separation of j ud ic i a l and executive functions and legal a id ; as to the last the Commission has re­commended the adoption of schemes already recommended in Bombay and West Bengal (Appendices I and I I to Chapter 27). I t i s to be hoped tha t the Government w i l l f ind a t least the m a j o r i t y of the conclusions a r r ived at and the proposals made in the Repor t as eminent ly cogent and practicable and give effect to t hem w i t h o u t undue delay.

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