Structure And Jurisdication Of The Higher Judiciary

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Law Commission Report

Structure And Jurisdication Of The Higher Judiciary

 

LAW COMMISSION OF INDIA

FIFTY EIGHTH REPORT

ON

STRUCTURE AND JURISDICTION OF THE
HIGHER JUDICIARY

JANUARY, I974



CONTENTS

'C1-rsrrnn 1 :ﬁ .. Scope and genesis of the Report .. .. .
'CHAPTER 2 . . Some general observations . . . . . .
'CHAPTER 3 Appeals to the Supreme Court . . . .
Crnrrsn 4 . . Petitions for writs before the Supreme Court
Cnnrrsn 5 . . Petition for writs before the High Court . . . .
'CHAPTER 6 . . Matters relating to taxation. . . .. .
Cnsrmn. 7 Disputes colxcrétning industrial relations ..
CHAPTER 8 Disputes concerning matters arisirg "out" of service
under the State. . . . .
'CHAPTER 9 . . Zonal Courts of Appeal ---Proposal for creation of . .
Cnsrrnn 10 . . Conditions of service of Judges  
'S"u1nrn l1'y of Recommendations an l:C0n?lusi0ns . . _ . . .
APPENDICES
.-XPPENDIX 1 . . Rules of some High Courts as to interim stay . .
APPENDIX 2 Pre-1950 position as to writs .. .. . .
APPENDIX 3 Proposed amendments in the Income Tax Act ..
Amanynxx 4 Tables showing answers to question 8 of the Law
gocnxmission Questionnaire from State Governments
APPENDIX 5 Rules as to disciplinary proceedings against Govern-
ment servants in some States .. . . . .
31EPE.\InIx 6 Extract of Supreme Court Judges T.A. Rules _

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P. B. GAJENDRAGADKAR
CHAIRMAN,
LAW COMNIISSION,
GOVERNMENT OF INDIA,

12. TUGI-ILAK ROAD,
NEW DELHI-11.
JANUARY 8, 1974

My dear Minister,

I am forwarding herewith the Fifty-eighth Report of the Law
Commission on Structure and Jurisdiction of the Higher Judiciary.
The ﬁrst Chapter of the Report sets out the circumstances under
which the Commission took up this matter for its consideration.

After the preliminary discussion of the various issues arising in
the inquiry, the Commission issued a Questionnaire and invited the
views of all State Governments, High Courts, Bar Associations, and
other bodies interested in the problem under inquiry.

The Commission divided itself into three Groups and each Group
visited the High Courts assigned to it and held discussions with the
Judges of the High Courts and the members of the Bar on the ques-
tions covered by the inquiry.

After considering the various suggestions and views received by
the Commission and discussing the matter at length, it has ﬁnalised
its Report.

Before I conclude, I would like to invite your particular attention
to the last Chapter of the Report relating to the terms and conditions
of service of higher judiciary. The Commission attaches very great
importance to the recommendations made in that Chapter and it hopes
that the Union Government will consider our recommendations favour-
ably and as early as possible.

So far as the present Commission is concerned, this Report is its
fourteenth Report.

With kind regards,

Yours sincerely,

P. B. GAJENDRAGADKAR
Hon'ble Shri H. R. Gokhale,
Minister of Law, Justice & Co. Affairs,
Government of India,
New Delhi.

i------ii



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 com-
mencement of the inquiry, and the preamble thereto, speak for them-
selves. 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 rele-
vant, coherent and stable in this country. It has consistently protected
the Fundamental Rights of the citizens against unconstitutional en-
croachment, 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 im-
portance cannot be exaggerated in the context of the federal set-up of
the Indian Republic.

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.

L/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 pro-
blem of growing arrears has received the attention of several com-
mittees appointed from time to time. The Civil Justice Committee ap-
pointed 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 Re-
forms 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 Govern-
ment of India appointed another Committee to review the problem of



2

arrears in the High Courts and to suggest ways and means for reduc-
ing 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 dissatis-
faction in the public mind about the effectiveness of Court process for
ventilating the grievances of citizens."

"4. For some time past, the Law Commission has been examin-
ing 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.

"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 judi-
cial verdicts, as whatever stages the proceedings may be pending, with-
out 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 eﬂfort to combine speed with eﬂiciency. This aspect of
the attack on arrears is, as has been just observed, human and no
rules of procedure can be of material assistance.

6. The other factor is procedural. It involves the consideration,
inter alia, of the propriety and necessity of several appeals and revi-
sions which are at present contemplated in litigation which takes
diﬁerent 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.

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 I-Iigh'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



3

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.

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 appel-
late purview and, though the burden imposed on the Supreme Court
in discharging this vide 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.

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 con-
centrate 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 con-
cerning 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 Govern-
ment 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 aggriev-
ed parties to move the Supreme Court under Article 136 on substantial
questions of law.

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



4

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.

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.

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.

13. Even in regard to Article 136 of the Constitution, it is sug-
gested 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 ap-
peals 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.

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 un-
substantial 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 respon-
dent and copies of all documents in support of the plea for stay or
injunction are ﬁled in court and served on the opposite party.

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



5

with disputed questions of fact? If yes, should oral evidence be allow-
ed to be tendered as in ordinary trial proceedings?

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 repre-
sentatives 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 conﬁ-
dent is shared by the Judiciary and the Bar and employees and em-
ployers alike-that the strength and glory of our system of judicial ad-
ministration 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.



QUESTIONNAIRE
ON

STRUCTURE AND JURISDICTION OF THE HIGHER JUDI-
CIARY

(OCTOBER, 1972)

1. (a) Are you in favour of limiting the scope of criminal appeals
under article 134 of the Constitution?

(b) If so, do you favour limiting such appeals to cases where a
substantial question of law of general importance is involved?

(c) If not, do you suggest any other limitations in this regard?

2. Would you favour any modiﬁcation as to the scope of appeal
under article 136 of the Constitution, against judgments of high
Courts?

3. (a) Do you favour the view that in petitions to the Supreme
Court under article 32, disputed questions of fact should not be gone
into?

(b) If so, what course would you suggest for the trial of issues of
facts in such petitions?

(c) If not, do you think that evidence should be recorded in a
petition under article 32 in the same manner as in a suit?

4. In relation to the grant of ad interim stay by the Supreme Court,
in petitions under article 32, do you favour the same limitations as
have been suggested below' in relation to the High Courts?

High Courts

5. (a) Do you agree with the suggestion that in writ petitions to
the High Courts under article 226 of the Constitution, stay should not
be granted, save in exceptional cases?

(b) Do you favour an amendment of the Constitution to the eifect
that unless the Court, for special reasons to be recorded, otherwise
orders by reason of exceptional circumstances, no interim order for
stay shall be asked for, in a petition under article 226, without ﬁling

evidence before the High Court that (a) notice of the intention to move -

the Court at a speciﬁed time and for speciﬁed relief has been or shall

' 990 Question 5, infra.



7

.

be given to the opposite party; and (b) copies of all documents tiled in court and intended to be relied upon in support of the application for interim relief has been or shall be served upon the opposite party?

6. With respect to the jurisdiction of High Courts under article 226 of the Constitution, do you favour the same limitations as to in- quiry into disputed facts as have been suggested above', in relation to the Supreme Court?

Taxation

7. (a) Do you favour the creation of a National Tax Court for hearing references from the Income-tax Appellate Tribunal (or similar tribunals constituted under taxation laws of the Centre and the States), whose decisions will be ﬁnal, subject only to appeals" as indicated below? -

(b) If so, should appeals to the Supreme Court from the decisions of the Tax Court,--

(i) be allowed with special leave, or

(ii) be allowed with special leave but only if a substantial ques- tion of law of general importance is involved, or

(iii) be allowed subject to any other limitation?

(c) In the alternative, are you of the view that the decisions of the present Income-tax Appellate Tribunals (or corresponding Tribunals under other Central and State laws relating to taxation) should be ﬁnal, subject to review by the High Court under article 226 of the Constitu- tion or appeal to the Supreme Court under article 136 of the Constitu- tion?

(d) If yes, what should be the status and terms and conditions of service of Judges of the above Court?

Industrial Disputes

8. (a) Do you favour the creation of a National Appellate Court for industrial disputes, whose decision will be ﬁnal, subject to appeal as indicated below?

(b) In the alternative, do you favour the creation of a Commis- sion for Industrial Relations as recommended by the National Labour Commission?

'. Question 3.

1. The Special Courts contemplated in this questionnaire, will, no doubt, be com. posed of persons having a grounding and experience of general laws, with particular know. ledge in their speciﬁed ﬁeld.

I (c) or, would you recommend the revival of Labour Appellate Tribunals, as they existed previously?

((1) If you are in favour of any of these alternatives, should ap- peals to the Supreme Court from the decisions of the proposed Na- tional Appellate Court of Labour Appellate Tribunal or National Com- mission on Industrial Relations-

(i) be allowed with special leave, or,

(ii) be allowed with special leave but only if a substantial ques-

tion of law of general importance is involved, or

(iii) be allowed subject to any other limitations, or

(iv) not be allowed at all?

(e) What should be the status and terms and conditions of service of Judges appointed to the above court or Commission?

Disputes as to Matters relating to Civil Services

9. (a) Do you favour the creation of a court at the national level exclusively vested with jurisdiction over disputes between the Govern- ment and members of the public service in matters relating to service' (including, in particular, petitions based on article 311 of the Consti- tution), whose decisions" will be ﬁnal, subject to appeal to the Supreme Court as indicated below?

(b) Should such a Court be presided over by a person of the status of Supreme Court Judge or High Court Judge, aided by two experts whose independence is guaranteed by their tenure?

(d) If your answer to (a) is in the negative, what other suggestions would you make as to the terms and conditions of service of its mem- bers?

(e) Should appeals to the Supreme Court from the above court--

(i) be allowed with special leave, or

(ii) be allowed withspecial leave but only if a substantial ques- tion of law of general importance is involved, or

(iii) be allowed with special leave but only if a question of funda- mental right is involved, or

(iv) be allowed subject to any other limitation?

(f) Besides a national Court as suggested in (_a) above, do you favour regional courts for the purpose mentioned in (a) above?

1. These would include terms and conditions ofscrvice, rIT0m0fl'0115:l3"11i'11m<'"i em

3. Compare tribunals functioning under French Administrative Law.

Zonal Courts

10. (a) Do you favour the creation of Zonal Appellate Courts, dealing with appeals against decisions of the High Courts in 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 constitut- ing the Zone. These Courts would function like circuit courts, and would h]old their sittings in the said respective High Courts from time to time.

11. (a) If you are in favour of Zonal Courts of appeal as propos- ed above, what in your view, should be the method of appointing Judges of those Courts?

(b) Should Judges of the Zonal Courts be chosen by seniority or otherwise?

((1) Should the decision of Zonal Courts be ﬁnal, or should those decisions be subject to appeal, under Article 136?

12. If you are not in favour of Zonal Courts of appeal as propos- ed above, have you any other suggestions for avoiding the possibility of accumulation of arrears in the Supreme Court?

Other Suggestions as to various Courts

13. Have you any alternative suggestions to make as to the status, jurisdiction, composition and personnel of the various Tribunals men- tioned above?

Pay and Pension of Judges

14. Do you agree with the suggestion that one of the necessary steps to help the efficient and speedy disposal of cases in the High Courts is to attract experienced, senior and competent lawyers to the Bench, and that this object may be achieved if----

(i) the terms and conditions of service of the High Court Judges are improved;

(ii) their age of retirement is increased to 65 years;

(iii) the salaries of the Supreme Court Judges and the High Court Judges are increased or, in any event, suitable additional fringe beneﬁts are provided for them;

(iv) on retirement, the pension of the Supreme Court Judges and the High Court Judges is made equal to their pay, or, in any case, is materially enhanced?

Miscellaneous

15. Have you any other suggestion to make as to the structure and jurisdiction of the higher judiciary or allied matters, with a view to ensuring that the higher judiciary would continue to command the conﬁdence of the community, and would be able to perform its f1mc- tions effectively, so that delays and accumulation of arrears would be avoided by legitimate and fair means?

CHAPTER 2 SOME GENERAL OBSERVATIONS Introductory 2.1. We have already explained the scope and genesis of this Re- port'. Before we preceed to deal with the various questions, we would like to make certain general observations, which will explain in detail the theoretical background of our approach.

Re-evaluation of human institutions needed 2.2. Every human institution needs re-evaluation, and, where necessary, changes or modiﬁcations, periodically in order to meet the changing needs of time. The State, being itself a complex of important human institutions, is no exception to this rule. And the limb of the State which deals with the adjudication of disputes and the administra-

tion of justice is of very great importance.

Concept of 'law' in ancient times 2.2A. According to ancient Hindu concept, "law" sustains, sup- ports and helps the progress of society. The Upanishads describe 'law' in eloquent words, thus:----

"Law is the king of kings, far more rigi There is nothing higher than law;

of the highest monarch, truth prevails, :1 against the strong."

The function of maintaining, sustaining or supporting' is the essence of the word "Dharma", erived from the root 'dhr', a word- corresponding to the Latin 'ﬁr', from which the word 'ﬁrmus' (strong and durable) is derived. According to the Mahabharata', "law" main- tains everything that has been created, "and is thus, that very principle which can maintain the universe".

d and powerful than they.

by its prowess as by that nd the weak succeed The concept of justice ed', is a concept that has been mooted d history is concerned. About out a law code intended to _ 2.3. Justice, it has been stat since the Sumerians, so far as recorde 2050 B.C., Urnammu, King of Ur, set :1. Chapter 1, supra.

- =1 errr srrtvxe we : n

3. Mahabharata, Slranti Parva, 109, 59. _ _ '. Earl Murphy, Book Review of Kirchheimer, Political Jwsnoe (1961-62) Lu 35 Temp. L.Q. 444.

L/P(D)194MofLJ&CA---2 12 insure justice in the land and promote the welfare of its citizens. Be- cause these were pragmatic people not inclined to discourse on a high level abstraction, the laws conﬁned themselves to protection of the weak against the CCOl10ml=J£lll_'/ strong, the ﬁsc against corruption, the ignorant against the knowledgeable. and to assuring punishment to perpetrators of physical harm. "It is what every law code since has sought to accomplish; and it implicitly contains an absolute concept of justice against which conduct can be measured?"

Its sanction 2.4. The legal order, thus, is a regime of adjusting rclzitiorts and ordering conduct by the systematic application of force of 5. politicallj. organised society.

The role of the higher Courts 2.5. For the maintenance and enforcement ct' ri;_:i*-ts and renter-3 the judiciary is the principal iilSl.l'i'.i'I'1€Ilt of the legal o ..r. the v =1- fare State, administrative tribunais. not belonging to the lt'J.'.llllt'.=;'l.'tl judicial l1i::='arcl1y may be inevitable, but the ultimriie Chet'.-: Zlgililist the wrong exercise of jL1l'lf~l<ilCtl0n by such tribunals is the judiciary. Judicial justice, therefore, is of supreme importance. Of the judicial hierarchy through which this justice is administered. the courts which constitute the higher judiciary in India, the Supreme Court and the High C'oui"ts----can be said to occupy a position of importance. not only because of the fact that they are at the apex but also l)CCfl1l.~'.B of the Wide and comprehensive jurisdiction which they possess.

High Courts 2.6. Although the High Courts in India----unlike the High Court of Justice in England or the Supreme Courts of the States in Australia---- do not (with a few exceptions) possess original civil jurisdiction of the ordinary character; yet, their all-pervading inﬂuence over the judi- cial system of the State is undisputed.

High Courts as the highest Courts of civil and criminal appeal 2.7. The High Courts are the highest courts of civil and criminal appeal, reference and revision. by virtue of the provisions in the Civil Courts Act of each State and the Cr.P.C. They have, under the Consti- tution, powers to issue certain orders and directions for the enforce- ment of fundamental rights and for other purposes. They also possess certain special jurisdictions, conferred by statutes relating to various subjects. Therefore, the uniformity of the course of judicial decisions is. in a large measure, secured by the effective exercise of the powers of High Courts. This proposition may sound elementary; but it is funda- mental.

3. Earl Murphy, Book review of Kirchheimer, Political Justice, (1961-62) in 35- Temp. L.Q. 444.

The Supreme Court 2.8. The Supreme Court, in our Constitution, also performs a multiple role, and has jurisdiction much wider than the highest COllI1'. of any other country. It is a federal court, in the sense that it is the exclusive arbiter of disputes between the Union and the States or be- tween one State and another. It is the highest constitutional court of the country. not only in its capacity as the protector of fundamental rights .1'. court of original jurisdiction, but also in its capacity as the final court of appeal in matters involving substantial questions of law as to the intcrpretatioii of the Constitution. It is a national court, in the 5511*: that. subject to certain restrictions, appeals lie to it from the ' "; of the High Courts on questions pertaining to ordinary is to say. even where the question is not one of constitu-

"' " itireme Court has also certain important varieties of special in pai'i.icul:u'. it has an over-riding power to grant special pneal from any judgment. decree. determination. sentence or cause or matter passed or made by any court or tribunal ._ of L '. except any court or t';ibi.:n:1l constitute-:1 by aiu' law relating to the armed forces. The Supreme Court :,=.ii".i an important place in the structure of our Constitution that 2%: Coiistituticii expressly provides that the law declared by the Supreme Court shall be binding on all courts and authorities in India. and that all authorities. civil and judicial, in the territory of India shall act in aid of the Supreme Court.

jurist': ..

leazc 'u order i' The need for review 2.9. Moreover, in India, the organisation of the Courts has not just evolved. as has happened in some other countries. The judicial hierarchv has been deliberately created by statute, and the whole orga- nisation'of the courts is based on a rational plan. In order that the machinery of justice so created may concentrate upon its legitimate task. and meet speedily and eﬂiciently the constantly varying demands made upon it. it is desirable, as we have already stated', that the machi- nery should be subjected to periodical review. Social and economic conditions undergo changes and pose new problems, and the_judicial system should, therefore, be re-examined from time to time in order to ensure that it adapts itself to perform, in an efficient manner, the functions entrusted to it by the Constitution and the laws. In this pro- cess, some of the assumptions with which we have been familiar, might require re-examination.

1. Para 2' 2, supra.

'.2 14 Task of law reform 2.10. It is the task of law reform to adapt the law to "the ever shifting phases which human affairs assume." The time has now come when it is necessary to examine how far our method of adjudication of disputes is adequate to meet the requirements of the general wel- fare. There need not be any undue conservatism in this regard.

Frankfurter has noted"':--

" ............. ..framers of judiciary Acts are not required to be seers, and great judiciary Acts, unlike great poems, are not written for all times."

No reason to be complacent 2.10.A. Some years ago, Chief Justice McRuer (of Ontario, Canada) said," that--

"In Canada, we have some reason to be proud of our judicial process, but we have no right to be smug."

This applies to India also. We have sound judicial traditions; a coherent pattern developed for the organisation of the judiciary; and a rational and systematic judicial process. There is no doubt that these factors have conferred great advantages on the country. An indepen- dent and eﬂicient judiciary, a uniﬁed judicial system, and a modernised procedure--though legacies of the pre-independence year,--have been cherished by us. The judicial system has earned the respect of the people, and the respect so earned is well deserved.

Feeling that system has not proved beneﬁcial 2.11. Nevertheless, "we have no right to be smug". In certain quarters, there is a growing feeling that the present system has not worked to the beneﬁt of the common man. We have to take note of this feeling, and seriously consider the question whether the system has any short-comings that could be remedied. Society can only stand to gain from such an inquiry. It is, thus, the object of this enquiry to consider how best the higher judiciary--the Supreme Court and the High Courts--can discharge their functions in the most satisfactory 1113111161'.

1-. A phrase used by Goodhart in English Contributions to the Philosophy of Law (19 48), pages 2 1-3';

1. Fra.nkfurter.Buslness 01 the Supreme Court.

s_ MeRuer ".J'., Lectures On the Evolution of the Judicial Process, page 73 (the W, M. Martin Lectures d 'vered at the University of Saskatchewan in 1956) (published in 1957 by Clarke, Irw'in- 0. Ltd. ), quoted by Roraoe Read, "The Judicial Process in Common Law Canada". (1959) 37 Canadian Bar Review 263, 265.

Earlier inquiries 2.12. The inquiry which we have undertaken is not the first of its kind. In previous Reports of the Law Commission, procedure in Civil' and criminal2 matters has been dealt with comprehensively. The juris- diction of the Supreme Court on the civil appellate side, has been the subject-matter of the Law Commission's Reports". The main objec- tives, in the previous Reports of the Law Commission', have been to reduce delay and expense in the judicial process, to simplify the proce- dure, and generally to advance the interests of justice. In a sense, the present inquiry is a logical continuation of the work already under- taken.

The present context 2.13. During the last 25 years, not only has the volume of busi- ness brought to the various courts increased, but the nature of litiga- tion has also assumed a new shape. This enlarged volume of business and its ever-changing nature have naturally created serious problems in the working of the higher judiciary. Any attempt to improve the system must devote attention to the factors relevant to the efficiency of those who work the system, and to the procedure by which the system is worked day-to-day.

Questions selected for consideration 2.14. Bearing in mind the above considerations, we have select- ed, for examination.» such questions concerning the jurisdiction and structure of the higher judiciary as require urgent attention. As we have pointed outs, this selection was not made on any theoretical basis, but on pragmatic considerations and keeping in view the gravity and nature of the problems, as disclosed by our experience in this ﬁeld.

Appellate jurisdiction of the Supreme Court 2.15. We shall now brieﬂy refer to the principal questions dealt with in this Report-" With reference to the appellate jurisdiction of the Supreme Court, it appeared to us that it might be convenient to deal with its jurisdiction in criminal appeals under article 134, since we have already recommended an amendment of the corresponding

1. 27th. and 54th. Reports.

3. 37th, and llst Reports.

3. 44tlz.and 4:3tli Rt-ports.

'. Including the 14th Report.

5. See Chapter 1.

5. For the questionnaire, see Chapter 1, supra.

article relating to civil appellate jurisdiction', and our recommendation has been acceptedf by the Government and has already become law. The basic approach which we have emphasised is that the docket of the Supreme Court should not be burdened with questions of fact or minor questions of law. and its main role as far as appellate jurisdic- tion is concerned. is that of dealing with such substantial questions of law of general importance as need to be decided by the Supreme Court.

Conditions essential for creative task 2.16. Felix Frankfurter once spoke' of "the conditions essential for the kind of creative tasks which are involved in the effective exer- cise of the Court's jurisdiction, which means essentially a feeling of serenity of mind and an absence of jostling", and he referred especial- ly to jostling due to too many problems occupying the attention of the court. The relevance of these weighty comments to our system is obvious.

Question of proper role of the Supreme Court 2.17. There is another aspect relevant exclusively to the Supreme Court, which requires consideration'. The basic question that has pre- sented itself is this---what ought to be the proper role of the Supreme Court? Should its role be conceived as primarily one of upholding the Conmtitution and interpreting the supreme law of the country. thereby constituting it, in the proper sense, the "Supreme" Court of the coun- try'? Or. should that Court be required also to deal with ordinary judicial business, the determination of questions of ordinary civil and criminal liability, questions concerned with the fortunes of individuals and the fate of particular criminals? As we will point out laters, two views are possible on this issue. But, for the purpose of making the present Report, we have not thought it necessary to record a formal or ﬁnal decision in that behalf.

Instinct for appeal 2.18. In this context, we may examine the structure of appeals.

The instinct for appeal is human. St. Paul's famous cry----"I appeal unto Caesar", expresses a fundamental instinct in humanity, as has

1. 45th Report of the Law Commission.

5. Constitution (30th. Amendment) Act.

'. John H. Manﬁeld (Professor of Law, Harvard Law School, formerly Law Cler to Mr. Justice Frankfurter) in (1955) 78 Harv. L. Rov. 1529, 1531.

'. See para 8 ofthe Pref-atory note to the Questionnaire (quoted in Chapter 1). '. See Chapter 3, infra.

been pointed out'. Nevertheless, it is also recognised that there must be an end to litigation. Though provisions for appeals are essential as providing checks and counter-checks for arriving at a correct decision, some reasonable limits have to be set to the search for a true and cor- rect decision.

The U.S. Supreme Court compared 2.19. A comparison with the U.S. Supreme Court is worthwhile in this connection. It is well-known that, as a matter of working practice, the Supreme Court of the U.S.A. by exercising discretionary control over its own jurisdiction, has become essentially a 'public law tribunal". The workload of the court places a premium on the time of the Justices, which is, as Justice Frankfurter noted, directly related to the quality of their judicial work--product-

"The judgments of this Court are collective judgments. They pre- suppose ample time and freshness of mind for private study and re- ﬂection in preparation for discussion at Conference." "Without ade- quate study there cannot be adequate reﬂection; without adequate re- ﬂection there cannot be adequate discussion; without adequate discus- sion there cannot be that fruitful interchange of minds which is indis- pt-nsable to thoughtful, unhurried decision and its formulation in learned and impressive opinions?"

Courts of appeal in the U.S.A. 2.20. In the U.S.A.", the courts of appeals are the vital centre oﬂ the federal judicial system, in two respects. With few exceptions, fede- ral litigation ends in the courts of appeals; less than three per cent of the cases decided are considered by the Supreme Court. Although the ﬁling of cases in the district courts increased only sixteen per cent in the past seven years, ﬁling in the courts of appeals increased one hundred per cent during that time. During the same period, the Supreme Court has kept its review of cases at a fairly constant numerical level.

In West Germany 2.21. It may also be noted that the Constitutional Court of West Germany is. by constitution, statute and practice, a specialist tribunal. which has jurisdiction only over constitutional issues.'

1. Lard Evershed (l'm-ineily, Sir Raymond Evershed).

2. TS'.-3 Fi'L'1i{f11l'lOl' :1 1'1 Lt tdis. "The Supreme Court under the Judiciary Act of 1923", (M25) 42 Harv. Lfllev. 1,18.

3. D3 .7: v. New York L"/"e Ins. Co. (l'.)39)) 3'ﬂ U.S. 437, 458-459 (dissenting opinion).

'. J.\V.Lumba.rd (Ch.iefJudge ofone ofthe US. Court 0fAppe-als)' ' Courts 0fAppea.l"

(1968) 54 Cornell Law Rev. 29.

5. Me. Whiiiney, "Judicial Restraint and the West German Constitutional Court'; 1961) 75 Harvard Law Review 5, 6.

The tradition in Commonwealth countries 2.22. It would, we think, not be inappropriate to refer to the re- mark that "It has been something of a fetish in Commonwealth na- tions that ﬁnal appellate tribunals should be courts of comprehensive jurisdiction, embracing both private and public law with the bulk of their business normally being private law.'"

Appellate jurisdiction of the Supreme Court 2.23. The essence of the matter is that it is desirable that the highest Court in the country should concentrate on questions of na- tional importance. If this be the approach, it may be desirable to have a fresh look at the appellate jurisdiction of the Supreme Court, and to consider how far that jurisdiction should be restricted in harmony with this approach, and to maintain uniformity with the amendments which have been already made in regard to appeals to the Supreme Court in ordinary civil proceedings."

Writ jurisdiction of the High Courts 2.24. The next topic to be mentioned concerns what is usually referred to as "Writ jurisdiction". Under article 226 of the Constitu- tion, the High Courts have been vested with jurisdiction to issue direc- tions, orders and writs for the enforcement of fundamental rights and for other purposes. These include writs in the nature of the ﬁve "prero- gative writs", as usually known to students of constitutional and ad- ministrative law, but the orders and directions which can be issued by the High Courts are not necessarily conﬁned to them. The jurisdiction to issue such writs was, before the Constitution, possessed by only a few High Courts. The constitutional jurisdiction is now exercisable by every High Court, and its popularity is now well-known.

Two important procedural aspects 2.25. We are not, at the moment, concerned with a consideration of the scope of this jurisdiction. But, in order that this jurisdiction of the High Court may be exercised in the true spirit in which it is intend- ed__to be exercised and also in order that justice may be done to all parties concerned who are likely to be affected by the exercise of this jurisdiction, it appeared desirable to examine a few aspects of the juris- diction. This was not an academic exercise, because the very large

1. MC. VVh.inney, "Judicial Restraint and the West German Constitutional Court", (1961) 75 Harvard Law Review 5,6.

'. See Constitution (30th Amendment) Act, Amendment ofarticle 133.

number of petitions under article 226 which are ﬁled and disposed of' in almost every High Court, justiﬁed a look at some of the procedural aspects, not with the object of any unnecessary tampering with the present rules, but with the object of ensuring that the power of the High Court is exercised in the best interests of justice. Two matters appeared to require attention; tirst, the question of interim orders issued on such petitions for the duration of the main proceedings, and secondly, the trial of disputed questions of fact in such proceedings- These questions are also relevant to the similar jurisdiction of the Supreme Court exercisable under article 32 of the Constitution.

Certain special types of matters brought before the Supreme Court and High Courts 2.26. Apart from ordinary civil and criminal litigation, and peti- tions for writs, certain special types of matters are often taken to the Supreme Court under its special appellate jurisdiction or under its writ jurisdiction. Similarly, such matters are often agitated before the High Court, by invoking the jurisdiction to issue orders and directions in the nature of writs. These attempts naturally increase the judicial business of the Supreme Court and the High Courts, and. in conse- quence the decision of really important constitutional matters as well as of ordinary civil and criminal appeals may sometimes get delayed. This is one aspect of the matter which we have to examine. We indi- cate below in brief the special types of matters which we have in mind.

Challenges against quasi-judicial decisions 2.27. As the position stands at present, the Constitution leaves it open to a party aggrieved by a decision of a judicial or quasi-judicial authority on many matters to approach the Supreme Court' and seek special leave to appeal from the decision of the authority, or to chal- lenge certain action of a judicial or a quasi-judicial authority before the High Court in its writ jurisdiction. The parties cannot be blamed for invoking the constitutional jurisdiction. But, in respect of certain matters, which are of a very specialised character, the question to be considered was whether a specialised judicial machinery could be set up or certain changes could be made in the existing procedure so that justice could be done better and more speedily.

Number of service cases and labour disputes and taxation matters 2.2.8: It is common knowledge that asubstantial percentage of the petitions ﬁled before the High Courts invoking its writ jurisdiction under article 226 of the Constitution relate to the terms and conditions

1. S e para 9 to llof the prefatory note to the Questionmiirc (quoted in Clinptrr 1)'.

of service and promotion and punishment of Government servants. It appeared to us that an improvement in the disposal of disputes relat- ing to these matters would beneﬁt the private litigants as well as the Government. Determination of these disputes require special know- ledge and experience-

There was also a feeling that the Supreme Court and the High Courts were unnecessarily burdened with industrial disputes and mat- ters relating to taxation. Industrial disputes should be settled promptly and it cannot also be denied that their decision requires knowledge and approach of a specialised character. It is not appropriate that they should congest the calendar of the highest Court in the land. Matters relating to taxation, again, should be disposed of promptly. In both these cases, considerations of national economy are at stake.

Three types of cases 2.29. Adopting these criteria, we applied ourselves to the task of enquiring how, in respect of three selected matters, the present judicial machinery could be amended, or the procedure could be revised, as stated above. These three matters were--disputes relating to direct taxes, disputes concerning industrial relations, and disputes arising out of ser- vice under the Union or a State. Here again, the selection of topics was made not on any theoretical basis, but on the basis of the practical im- portance oi' the subjects in question.

Suggestions for 'Zonal' Courts 2.30. There fell also' to be considered a suggestion for an inter- mediate Court between the High Court and the Supreme Court for the disposal of appeals. This idea took the shape of "Zonal Courts", which would take over from the High Court such appellate jurisdiction as is exercised by the Division Benches of the High Court; there would be Zonal Courts for 5 or more zones into which the country could be

-divided. The main objective was not the reduction of arrears in the High Courts, but the bringing into being of a Court which would be removed from local inﬂuences and which would facilitate the mobility of the Bench and the Bar. In other words, the process of national integration on the judicial side would be furthered by the creation of such courts.

Some other connected questions 2.31. In order to secure a better functioning of the higher judiciary, it also become necessary to consider the possibility of improvements in salaries and conditions of service of its personnel.

1. 5900 para 12, prcftttot-ynote to the questionnaire (quoted in Chapter 1).

Questionnaire 2.32. Having selected the problems. we gave some thought to these matters and issued a Questionnaire. The Commission had not then formed any conclusions (even provisional) on any of these issues. But these issues required serious consideration, and, in order that there may be a public debate on the subject, in which knowledgeable per- sons and bodies can participate. and in order to ensure that those parti- cipating in such debate make a useful constribution, the Commission considered it desirable to deﬁne the broad issues to be considered and to elicit opinion thereon.

2.33. It was with the above object in view that the Commission prepared a short Questionnaire. The Questionnaire was not to be taken as representing the views of the Commission, tentative or other- wise. As stated above, the obiect was to put the issues before the pub- lic. and to invite well-informed opinion thereon, thereby facilitating a dispassionate. careful and constructive consideration of the problem in all its aspects. The Commission is grateful to all those who co-operated with it by answering the Questionnaire and by participating in oral dis- cussions.

The problem of arrears 2.34. We are fully conscious of the difficulty of devising saaisfactory solutions for the problems that will come up for consideration in the present inquiry. In particular, the problem of delay and arrears is a difficult one to solve.

The causes of arrears 2.35. As has been observed in the U.S.A.,'----

"There is no simplistic solution to a pattern of delay such as these cases illustrate; if there were, we would not have the problem. The causes are numerous. They vary from case to case and from place to place. The delay is more pro- nounced in urban centres where the caseloads are heaviest. Causes include inadequate court personnel (both in number and in training), outdated procedures, the multiplicity of pleadings and appeals and, frequently, delay in preparation of transcripts. The historical resistance of legislatures and the Congress to providing a court with the money, person- nel and facilities they need to meet increased caseloads may be an important factor."

1. R')h:u't: VV. M >.serve (PI'8Sld.9"li'., American Bar Association) in (1972) American Bar Association Journal, 1129, N52.

Litigation not an evil 2.36. We should make it clear that we do not regard litigation as an evil. Thurman Arnold has analysed the source of judicial prestige in terms of the dichotomy between substantive law and procedure. He has pointed out that many institutions other than courts settle disputes. Yet, of all the institutions engaged in the settlement of disputes, courts alone had "found a way of doing it which has brought them over- whelming prestige and respect"'. Courts are bound by precedent". Arnold noted, while "bureaus are bound by red tape". Arnold added:

"It is obvious that our belief that courts are the chief guardians of the supremacy of law is the reason why we adopt such a respectful attitude toward them."

Increase in case-load to be anticipated 2.37. What should, however, receive attention is that appellate case- load will, in future, increase and not decrease. This work-load may eventually pose a challenge. We have to visualise the ﬁnancial and human needs of an appellate system competent to carry what has been described as the "burdens that will be thrust upon it in the coming generation of conﬂict and change?"

Effective response to this challenge demands initiative and plan-

ning by all concerned with the state of the appellate process,--a process-

which has been described as "inter-dependent phases of a single system performing a vital social task."3 Problems considered 2.38. It is in the light of these considerations that we proceed to consider, in detail, the problems relating to the structure and jurisdiction of the higher judiciary that seemed us to need solution.

Arrears not the major consideration 2.39. At this stage, we ought to make it clear that the question of growing arrears is not the sole or major consideration which weighed with us- Our object has been to review the judicial system, in so far as it relates to the topics mentioned above, and to suggest reforms

1. Sew Ar./lolel, '"l'h=, Role of Slll.)S"I£Itl1tlVO Law and Procedure in the Legal Process"

(19.'l;2l 45 Harv. L. Review 617, 627, 630.

9. \Vi:islmv Charistian (J|lStlC(' of H10 Crtliforilia Court, of Appeals), "Delay in Cr-iniinril Appeals".(l 971), Stanford Law Review. 676, 702.

3. \Vl'lSl0\\' Cliristimi (Justice ofthe California Court ofAppeal), "Delay in Crimi- 11a.lAnpea1s" (1971), t\\tanf01'd Law Review, 676, 702.

wherever they appeared to be reasonable and necessary. It is hardly necessary to add that the ultimate beneﬁciaries of these reforms are the citizens of the nation, and not this or that branch of the State.

Object of Reforms 2.40. We may refer, in this connection, to what the Lord Chancel- lor said,' in England, in the Debate on the "Administration of Justice Bill," in 1934--

"Some reforms are designed both in the interests of the State and of the individual, to ensure economy and expedition in the administration of the law; others are intended in the interests of the litigant himself."

Principal questions dealt with 2.41. The principal questions which we propose to deal with in the following Chapters are as follows:----

(a) Supreme Court Criminal appeals to the Supreme Court.

Appeals to the Supreme Court by Special Leave.

Petitions for writs before the Supreme C0urt---Questions of fact. Petitions for writs before the Supreme Court--Grant of Interim stay.

(b) High Courts Petitions for writs before the High Courts--Grant of Interim stay.

Petitions for writs before the High Courts--Questions of fact.

Disputes concerning Industrial Relations.

Disputes concerning matters arising out of service under the State.

((1) Zonal Courts Other suggestions concerning various Tribunals.

(e) Other suggestions Other questions concerning the higher judiciary, including condi- tions of services.

1. ILL. Debates (Administration of Justice Bill), 5o1J.June, 1934, C01. 789.

CHAPTER 3 APPEALS TO THE SUPREME COURT Criminal appeals Questions dealt with serially 3.1. Of the questions included in our Questionnaire, which we now proceed to discuss serially, the ﬁrst two questions relate to the appellate_ ]'.tf1S(llCll0n of the Supreme Court. We shall ﬁrst take up the criminal appellate _|urisdiction of the Supreme Court. Article 134 of the Constitution reads thus----

"I34. Appellate jurisdiction of the Supreme Court in regard to criminal matters.--(l) An appeal shall lie to the Supreme Court fr-rm any judgment. ﬁnal order or sentence in a criminal pro- cg: of a High Court in the territory of India if the High Cour't'---

~."-.l, has .1 appeal reversed an order of acouitttil of an accused permn and sentenced him to death; or lb'; has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or

(c) certiﬁes that the case is a ﬁt one for appeal to the Supreme Court;

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require.

"(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, ﬁnal order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be speciﬁed in such law."

Act of 1970 3.2. It may be stated with reference to clause (2) of article 134 that Parliament has passed legislation' enlarging the scope of the appellate jurisdiction of the Supreme Court.

1. Supreme Court (Enlargement-, of Criminal Appellate Jurisdiction) Act, 1970 (28 of i970.) 24 25 Criminal appeals to the Supreme Court.

3.3. Qttesti-Cu 1 in our Questionnaire deals with the criminal ap- ellzite iurisdiction of the Su rernc Court. The cuestion is as fol- ] . P l ows:--

"1. (:1) Ari: :'Li't' -of limiting the scope of criminal appeals under ;~.....?c '" ""' 1::-'Q of the Cotrtitution.

"t'r>) It' so, Liv' vc" limitiitg such appeals to cases w'n.:re a .~.;:bst;::1':::-.1 qnestioti of law of general importance involved?

'"(c) :31' not. do you s:.1gge:'t arty otter' limitations in this regard?"

Article 134(3) In} fild nib) and 1979 Act not dealt vv:'.t!1 i:.y 3TlCtkC it clear that our eno;'.:ir_J i::. Ito: concerned wiih sUb- and (b) of clause '1) of article 134 of the Crinstitutioit'. The z.ppea'. . der those two sub-clauses is a matter of right, and there is no qttestion of disturbing that provision. Similarly. we do not in this Report propose to suggest any modiﬁcation in the Act of 19703. In order to deal with the provisions of Article 134 as a whole, or in order to make com._ :T ons where necessary. we have. in the ensuing discussion, naturally rererred to the position lY.I'}(1C31' tl:<>se two sub- clauses and und the Act of 1970. But the drecussion should not be construed as suggesting any amendment of those sub--clauses or of the Act of 1970.

Gi* t of replies 3.5. The replies on our question" are evenly balanced in favour of and against the amendment put forth in the query.

Some Judges' of the Supreme Court, who have responded to our Questionnaire, have in their reply favoured limiting the scope of cri- minal appeals by deleting sub-clauses (a) and (b) of article 134(1). They suggest that the scope of criminal appeals under article 134 of the Constitution should be limited to cases where a certiﬁcate that it is a ﬁt case for appeal to the Supreme Court is obtained under article 134(1) (c). The replies of High Courts and High Court Judges on this question are almost evenly balanced.

:1 . l'nr;t,<_(rapli3'l SZl.])7'(I_ 3, i'z1ru<,rri\pl;.Z;" S. 2'rI_fr(I.

3. Para 3~ 3, supra.

'. S. No. 50.

Views favouring limitation in a modiﬁed form 3.6. Limitation of the scope of appeals under article 134 but in a modiﬁed form has been favoured in some of the replies received by us. For example, there is a suggestion' that in every case where the sentence oi' death is awarded, there should be a right of appeal, be- sides cases where a substantial question of law of general importance is involved. Another suggestion2 is that in every case of life imprison-

ment, appeal be allowed.

Then, there is a suggestion" that clause (c) of Article 134 (1), should be totally deleted, since Article 136 serves well the purposes intended to be achieved by article 134(l)(c)~ Some of the replies,' while not favouring a change in Article 134, express the view that the parliamentary legislation5 passed under Article 134 (2) should be repealed. ~ In addition, several Judges and members of the bar have, in oral discussions, expressed their views on various aspects of the question.

We now proceed to deal with the present position, and the ques- tion whether an amendment is needed.

Present Position 3.7. The legal framework as to the right of appeal in criminal cases in India, appears to rest upon one broad principle, namely, the desirability of allowing one appeal as of right, both on facts and on law, in respect of a conviction for the ﬁrst time in a case. Appeals from such judgments of courts other than the High Court are allowed in all cases (barring certain minor cases' in which the sentence does not exceed a speciﬁed period of imprisonment or a speciﬁed amount of ﬁne, or where a plea of guilty is accepted.) Appeals from judgments of the High Court, before which a conviction is ordered for the ﬁrst time, are limited to serious otfencesi obviously to prevent the Supreme Court from being troubled with less important cases.

1. S. No. 19.

'. Oral discussions (Madras Bar).

3. S. No. 41 (a High Court Judge.) '. S. No. 36 (four Judges of a High. Court.) 97 5. The Supreme Court (Enlargement of Criminal Appellate Jur-isdictior.) Act, 1 0.

°. Section 413 and 414,01'. P.C.1898.

7. The exceptional provision in section 411A (4), Cr. P.C. 1898, is now inmost obsolete.

3.8. Reading together article 134 (1) (a) and (b) and the recent Act' of 1970, broadly speaking, an appeal against such conviction lies to the Supreme Court, if the High Court has reversed an acquittal or withdrawn a case and tried it itself, and passed a sentence of deathf imprisonment for life or imprisonment for not less than 10 years.' 3.9. In other cases, there is no unqualiﬁed right of appeal, and, as is evident from article 134 (1) (c) of the Constitution, an appeal lies only if the High Court certiﬁes the case to be a ﬁt one for appeal to the Supreme Court.

3.10. This can be illustrated with reference to article 134 (1) (a) and (b) of the Constitution. Thus, by virtue of article 134(l)(a), where a person acquitted by the Court of Session is, on an appeal against acquittal, convicted by the Appellate Bench and sentenced to death, he has a right of appeal to the Supreme Court, because as Dr. Ambed- kar observed, the initial presumption of innocence is, in this case, further strengthened by the fact that the trial Judge had found him innocent? If, in such cases, the Appellate Bench ﬁnds him guilty and sentences him to death, it is certainly a matter which requires further investigation." Similarly, article 134 (1) (b) provides a right of appeal to a person who, having been tried after withdrawal of the case by the High Court is convicted and! sentenced to death:

here the right of appeal is based on the principle that a person who has been convicted for the ﬁrst time and condemned to death, ought to have at least one appeal? The Act of 1970 has extended this right to cases where the High Court setting aside an acquittal passes a sentence of life imprisonment or imprisonment for ten years." As already stated, the appeal to the highest Court is, of course, limited to serious cases. Chief Justice Pratt observed long ago, that "it is the glory and happiness of our excellent Constitution that, to prevent any inju_stice, no man is to be concluded by the ﬁrst judgement; but that, if he apprehends himself to be aggrieved, he had another court to which he can resort for relief".

In the present inquiry, we have no intention to consider any chang- es in article 134(1) (a) and (b) of the Constitution. We are concerned

2. Supreme Court (Enlargement of Criminal Appellate Jurisdietioa) I ct, 1970.

3. Article l34(l)(a) and (b).

'. Act of 1970.

5. See Dr. Ambedkaﬁs Speech. Vol. 8, Constituent Assemblv Debates 853 (1411. June, 1949). "

°. Dr. Bakshi Tek Cl1.and's Speech, VOL 8, Constituent Assembly Debates, page 851 (14th June, 1949).

7. See Dr. Aml;e:,lkar's Speech, Vol. 8, Coistitue. t Assembly Debates, page 853 (14th June, 1949). ' 19703. The Supreme Court (Englargement of Appellant, Criminal Juvisdiczionl Act 28 with cases outside them and outside the Act of 1970 where redress is still sought from a superior tribunal.

Rational and sound guideline desirable 3.11. The grounds on which a certiﬁcate can be granted "under article 134 (1) (C) are not stated in the article. Judicial decisions have laid down broad guidelines,' but, in the interest of uniformity and certainty, it is desirable that the test should be indicated in the Con- stitution. Our primary concern, therefore, in dealing with this aspect of the problem has been to devise a rational and sound iormula, which would be objective and would furnish clear guidelines to the High Courts in considering applications for certiﬁcate under article _l34 (1) (c).

Special aspect of Criminal cases as involving liberty considered 3.12. We ought to state that while we considered the question of amending article 134 (1) (c) of the Constitution, we gave anxious con- sideration to the fact that, unlike civil cases, criminal cases involve a question of life and liberty of the citizen. After elaborate considera- tion, however, we came to the conclusion that amending article 134 (1)

(c), on lines similar to those on which article 133 (1) (c) has recently been amended by Parliament in pursuance of out reoomrneiidation, would cause no hardship or injustice. In our view, cases Ci grave miscarriage of justice can be easily saved and covered uiidci' article 136 of the Coizstimtion. Whenever the Supreme Court is satisiicd that in criminal proceediizgs, the ultimate verdict of the Higli Court has caused grave miscarriage of justice, its iurisdictionto gr_an_1 special leave to the litigant, aggrieved by such a verdict, is unlimited; and so, amending article 134 (1) (c) would cause no real hardship.

Effect of the recommended change 3 13 It is true that ii article 134(1) (c) is amended in accordance with our. recommendation, it will not be possible for _a party 3§E:'F1eYed by the appellate judgement of the High sourt in a criminal proceeding to ask for a certificate for appeal to the Supreme Court _unless the case falls within one or the other of the sub-clauses of article 134(1). But this position is subject to the right of the party aggrieved to move the Supreme COU.I't for special leave to appeal against the ' d ement of the High Court under Article 136, even though the re-

Jqliiigements of article 134(1) are not satisﬁed. Embarrassment likely to bgql:ge|g]£(e)ﬁst(())flIfg Court as to certiﬁcate on ' ndment which we are going to propose Siliii lzieiliscltziicdhegiil/bnethe intending appellant a right to claim a W0u'ﬁ' t here he is able to satisfy the High Court that a substantial Gem 'ca 6 EV law of general importance has arisen which. in the opinion (cli"ie'f1t11e:)nH0igh Court, needs to be decided by thﬁ SUPFGIHC Comt-

1 See: Paragraph 3- 24. ""f'"-f°1' the Present guidelines' 29 Incidentally, it is not diﬂicult to appreciate that in cases of alleged grave miscarriage of justice, the High Court may feel embarrassed to grant the certiﬁcate under the existing clause (1)(c) of article 134 on the ground that its verdicts has, prima facie, causes grave miscarriage of justice; whereas the Supreme Court will feel no such embarrass- ment in dealing with the same question under article 136. It is, there- fore, logical not to keep the jurisdiction of the High Court too wide and indeﬁnite. That is why we have decided to recommend a suitable amendment in article l34(l)(c) which will make it similar to the amended article l33(1)(c).

Findings of High Court to be ﬁnal on facts 3.15. One of the reasons which have weighed with us in recom- mending the amendment of article l34(1)(c), is that, ordinarily, ﬁndings of fact, recorded by the High Court sliould be ﬁnal. Similarly, ordi- narily, the conclusions recorded by the High Courts on questions of law should also be ﬁnal unless there is a divergence of judicial opinion or the question of law is otherwise of general importance. The formula which we have decided to adopt is that certiﬁcate should be granted if the intended appeal involves a substantial question of law of general importance, wliich in the opinion of the High Court needs to be de- cided b the Supreme Court. The same expression has been used by us in our Report c'e::T.§ng with the atznendincnt of article l33(l)(c) of the Con=stitutior1.

lmptieations of proposed amendment LIE-6. in that we had. eiaboratcly explained the implica- TECIDS of the amendment which we had then recommended. Shortly atrrttecl, tli:-: adoption of this formula means that if the appeal in ques- tion oi: law on which there is a divergence of opinion amongst different High Court or the point of law is important, because it is one of ﬁrst impression and is of general signiﬁcance, the appellant is entitled to a certiﬁcate because it is the primary function of the Supreme Court to resolve such divergence on important questions of law. It is the privilege and duty of the Supreme Court to introduce uniformity in the interpretation of laws and where a divergence of opinion is ex- pressed by the High Courts, the party is justiﬁed in seeking a verdict of the Supreme Court on such a question of law of general import- ance.

Well settled questions of law not to be certiﬁed 3.17. If, on the other hand, the appeal involves a question of law on which there is no divergence of opinion, in the view expressed by other High Courts, then, such well-settled points of law need not be brought to the Supreme Court. That is one implication of the formula which have adopted.

3.18. The other implication of the formula is that ﬁndings of fact recorded by the High Courtwhile exercising its appellate 30 should, except in cases covered by article I3'4(l)c (a) and (b), or the Act of 1970, ordinarily be treated as ﬁnal, and their propriety or correctness should not be liable to be challenged by way of appeal unless the Supreme Court is persuaded to grant' special leave in such matters. It is well-known that there are no uniform or mathematical yardsticks which judicial approach can adopt mechanically in appre- ciating oral evidence, and it is generally on oral evidence that the decision in the criminal trials depends. Experience shows that two judicial minds, appreciating the same evidence, may not always reach the same conclusion. But that is no reason why the test of ﬁnality should not be applied in dealing with criminal matters at the stage where the High Court, in exercise of its appellate jurisdiction, has considered the evidence, weighed the pros and cons urged in respect of it, and pronounced its verdict. From this point of view, the fact that the verdict of the High Court afﬁrms the decision of the trial court, or reverses it is not, in itself, material. We thought it necessary to explain brieﬂy the implications of the formula because, as we have already indicated, the conclusion is that the scope of article 134(1)(c)~ should be placed on the same basis as that of article l33(l)(c), as amended in accordance with our recommendation.

Article 136 3.19. In conclusion. we must re-emphasise that, notwithstanding the limitations sought to be imposed by amending article l34(l)(c), the jurisdiction of the Supreme Court under article 136 remains totally unaﬁected.

Effect of proposed amendment on work-load of Supreme Court 3.20. Before we part with this aspect of the matter, we may inci- dentally refer to another consideration. In the absence of proper and deﬁnite guidelines, which would assist the High Court in disposing of applications for certiﬁcates made article 134(1)(c), certiﬁcates are on some occasions granted when it is ultimately found that such grant of certiﬁcates was really not justiﬁed, and the granting of certiﬁcates in such cases tends to add to the load on the docket of the Supreme Court. If the formula which we are recommending is accepted, it is not unlikely that this unjustified addition to the work-load on the calendar of the Supreme Court may be reduced. if not altogether eli- minated. When we refer to the work-load on the calendar of the Sﬁlpreme Court. we are indirectly referring to the problem of growing arrears which the Supreme Court has to face. Accumulation of large arrears must be regarded as a relevant consideration in revising the structure of the higher judiciary. Our approach is that the signiﬁcance of this consideration should not be unduly exaggerated. Nor can this consideration be treated as decisive in devising a mechanical for- nula, which is otherwise not rational, reasonable or fair.

Some ﬁgures 3-21. Considered from this point of view, it may be relevant to indicate the position in regard to the number of criminal appeals in the Supreme Court during the last 3 years.

3.22. We may refer to a few ﬁgures at this stage. The number of criminal appeals to the Supreme Court during the last three years was as follows':-

(a) Nnniber of appeals at the opening Ofthc 1969 1970 1971 year. . . . . . 563 505 538 (12) Number ofappealsinatituted during the year. . . . . 262 234 338 (0) Number of appeals disposed of during the year . . . . 220 201 289 NoTE:----These ﬁgures are both under article 134 and Article 136 of the Constitution.

Separate ﬁgures are not available.

These ﬁgures show, a slow but steady increase.

Amendment will only codify existing interpretation 3.23. We may also point out that our recommendation does not really constitute a new or radical change. Even at present, the usual practice followed by the High Courts is to grant a certiﬁcate under article l34(1)(c) only in cases where questions of law of general im- portance are involved. This is clear from many pronouncements of the Supreme Court. Though clause (l)(c) of article 134 does not expressly say so, it has been judicially interpreted by the Supreme Court as con- ﬁned to such cases. The proposed amendment will, thus, give legis- lative recognition to the judicial interpretation of the existing clause. In support of this statement, we shall refer to some decisions of the Supreme Court by way of illustration."

Decisions 3.24. In referring to these decisions here, our object is to draw attention to the fact that not only the Supreme Court, but the High Courts that have had occasion to consider applications for the grant of certiﬁcate, have, broadly speaking, taken the view that the certiﬁ- cate is to be granted only where certain important questions are at issue. This unwritten 1imitation--we do not use the word "limitation" in any rigid sense----some_times ﬁnds expression, while sometimes it is the implicit basis for the grant or refusal of a certiﬁcate. Proceedings for the grant or refusal of the certiﬁcate are not usuaHy reported.' But, on a perusal of those cases in which judicial pronouncements fell to 1 Statement No. S-4. 3 Para 3'26, infra.

be made, as also from oral discussions with the judiciary and the bar' at various places, we have no doubt that such is the position-

3.25. The jurisdiction of the High Court to certify a case as a ﬁt one for further appeal is, to a certain extent discretionary, and, like the jurisdiction of the Judges of the Divisional Court in England to give or to refuse leave to appeal to the Court of Appeal from their own decisions is, (to use the epithet employed' by Lord Esher M.R. in relation to that jurisdiction), a "very declicate one."

Jurisdiction unlike an ordinary Court of criminal appeal 3.26. Though the discretion of the High Court is not expressly limited, it is well recognised that the jurisdiction under article 134(l)(c) is not that of an ordinary court of criminal appeal, and the High Court, before it certiﬁcates the case, must be satisﬁed that it involves some substantial question of law of principle and not merely a question of law of principle and not merely a question of appreciation of evi-- dence." No doubt, the fact that this article deals with criminal cases, will be borne in mind while granting the certiﬁcate. But, at the same time, a certiﬁcate granted on questions of fact without disclosing any substantial question of law or principles, may not be acted upon by the Supreme Court." If the appeal is under Clause (21) or clause (b) of article 134(1). it is as of right;' same is the position where the appeal is under the recent Act of 1970.5 But the appeal under clause

(c) lies only on a certiﬁcate and the requirement of a certiﬁcate itself implies that there should be something more than what is required for an ordinary appeal under the Code of Criminal Procedure. In considering the question of granting or refusing the certiﬁcate, the High Court must take note of the fact that except in cases falling under the Act of l970--the Constitution intends that in all criminal matters, the High Court in the respective States shou.ld normally and ordinarily be the ﬁnal court of appeal, which means that the certiﬁ- cate should be granted only in special and exceptional cases."

Some cases 3.27 In a very early case,' the State Government had provided, to displaced persons, some 'abadi' land and agricultural land in a

1. ExParte Gt'lcIm'et;1n ReArmstnmg, (1886) 17 Q.B.lJ.52l,;,::zs.

9. State ofAa.9am v. Abdul Noor, A.I.R. 1970 S.C. 1365, 1336 (1970) Criminal Law' Journal 1264.

'. Sushil Kumarv.Joy ShanIcer,A.I.R. l970S.C.]543, 1547; (1970) 3S.C.R. 770.

'. Tara Ghand v. State of Maharashtra, A.I.R. 1962. S.C. 130, 132; (1962) 2 S.C.R.

775.

5. See (1971) Kerala Law Times 514, referred to in the Yearly Digest.

". Balm V. The State, A.I.R. 1965 S.C. 1467, 1470, 1471; (1965) 2 S.C.R.'7'7l.

7. Baloodin and others v. State of U.P., A.I.R. 1956 S.C. 181 (Bose, Jagannadhadzs and Sinha JJ.).

village Goran to the new-comers (refugees), who were not welcome to the old residents. This created some tension and hatred between the two groups. There were many complaints made to the district authori- ties. But they did not take any interest in settling the matter.

328. On 7th February, 1954, the group of old residents attacked the new-comers at Mangal Singh's house armed with axes, spear and guns, etc. and shot down six male members of the refugees. The High Court convicted the appellants, but granted a certiﬁcate of appeal to the Supreme Court.

3.29. The Supreme Court held that the High Court should not grant a certiﬁcate as a matter of course, but it must exercise its dis- cretion judicially under Article 134(1)(c) of the Constitution. The High Court must apply its mind and give reasons for the order. The im- portant question of law must also be apparent on the face of the order.

3.30. In this case, the High Court had granted a certiﬁcate by simply stating in the last line of the judgment "leave to appeal to Supreme Court is granted." On the course adopted by the High Court, the Supreme Court commented: "We have seen that neither it has shown any important question of law, nor certiﬁed the case as a ﬁt case for appeal. Therefore, it has exercised its power mechanically and not judicially."

3.31. In another case' the Supreme Court has said, "It is mani- fest that before granting a certiﬁcate under sub-clause (c), the High Court must be satisﬁed that it involves some substantial question of law or principle."

Earlier decisions 3.32. Some of the earlier decisions which take the same view are given in the ﬁootnotez

1. State ofAoeam v. Abdul Noor, A.I.R. 1970 S.C. 1365. para 7.

3. (a) Nursing]: v. The State of U.P. (1955) 1 S.C.R. 238---Ax-ticle 134(1) (c).

(b) Baladin v. The State of U.P. A.I.R. 1956 8.0. 181--(A1-ticle 134(1) (c).

(o) Banaraci Prasad v. Kain' Kriahan, 28,I.A.l1,l3, 18, (P.C.)

(d) Vaithianath Pillar' v. King Emperor, 40 LA. 193, LB. 36 Mad., 501; 14 Cr. ILJ 577 (P.C.).

(e) Han' ada Dev. v. State of West Bengal (1966) S.C.R. 639--Article 134(1) (6) an Article 136.

(f) Sidhulwar Ganguly v. State of Walt Bengal. (1968 ) S.C.R. 749, 754---Articles 134 and 136.

(g) Khzéslitézé Rao v. State of Bombay (1958) A.I.R. 1958 S.C. 22----Articles 134 an .

Recent cases 3.33- In a recent case, decided by the Supreme Court,' it has ex- pressed the same view, and has clearly indicated that the word "certify" is a strong word, and it requires the High Court to exercise its discre- tion carefully and grant a certiﬁcate only if an important question of general importance is involved.

Article 136 considered 3.34. At this stage, we may state that we shall later' consider the question whether article 136 should be suitably amended so as to ex- clude, from its purview, ordinary civil and criminal apeals covered by articles 133 and 134. We may anticipate our conclusion and state that we propose to recommend no such change in article 136. It is on that basis that our recommendation to amend article 134(l)(c) is founded.

Functioning of the Supreme Court under a Federal Constitution .

3.35. While discussing these questions, one of the points which we carefully considered was the nature 'of the functioning of the Supreme Court under a Federal Constitution. Two views were expressed in the course of the discussion. One view was that, ultimately, by suitable constitutional amendments made from time to time in the light of the experience gained, the position of the Supreme Court in our country should become similar to that of the Supreme Court in the United States of America in certain respects. In other words, according to this view, our Supreme Court should be called upon to consider and decide only important public issues of constitutional signiﬁcance as well as important points of law on which there is divergence of opi- nion in the High Court, and its calendar should not be burdened with multifarious less important matters. If that be the goal to be achieved,

----may be by suitable stages,----it is visualised that, ultimately, :1 much smaller number of really important matters would be brought before the Supreme Court, and it may then become possible for the Court to deal with such matters, not by sitting in different Benches but by the whole Court sitting as one Bench. In that case, the present strength of the Court may have to be reduced, say, to seven or nine Judges.

Hearing by whole Court considered 3.36. According to this view, we ought to recognise that hereafter when the Indian Legislature attempts to imp1ement,.by appropriate legislation, the Directive Principles which are fundamental to the

1. State of Bihar v. Bhagirath Sharma, (1973) I S.C.W.R. 655 (3 May 1973), (on appeal from Patna). .

' Para 3' 54, infra.

governance of the country, the constitutional problems which may arise before the Supreme Court may need a close examination in depth not only of the provisions of the Constitution, but also of complex socio-economic considerations; and, in discharging this onerous task, both the Bar and the Bench will have to make research on the several issues involved and devote more time for debate and discussion of those issues. If the whole court hears such matters, it would be a collective decision of the Court, though, it is inevitable that, on occa- sions, the minority and the majority views may be expressed. Besides, if the whole court sits together to hear matters, the possibility of con- ﬂicting judgments, delivered by different Benches, will be eliminated. That is why, according to this view, the ultimate goal to be reached, not immediately, but in future by stages, should be to leave freedom to the Supreme Court to concentrate on really important issues and lay down the law on those issues authoritatively-

Number of Judges 3.37. Incidentally, if the load of the calendar of the Supreme Court is rationally reduced and is conﬁned to really important issues, the problem of growing arrears, which is disturbing the mind of the Supreme Court, may also be solved; and in the long run the number of the Supreme Court Judges may have to be conveniently and pro- portionately reduced.

Two views on to role of highest court 3.38. It may be recalled that in an earlier Chapter,' reference was made to the view expressed by Justice Frankfurter that, if the highest Court under a federal Constitution is to lay down laws, constitutionally or otherwise, to bind all the federating units, its calendar should not be over-burdened and suﬂicient time should be allowed to the Judges of the Court to think about the complex problems brought before them and pronounce verdicts which may enrich the legal literature of the country. These observations support the view which three of us~the Chairman, Dr. Tripathi and Mr. Bakshi--took in this debate.

3.39. On the other hand, two of us--Mr. Dhavan and Mr. Sen Varma--strongly expressed the view that the analogy of the United States and Western Germany cannot be regarded as relevant to the conditions of our country for several reasons. They thought that the conferment of the comprehensive and wide jurisdiction on the Supreme Court was intended to serve the primary purpose of sustaining the unity of the country. Besides, the history of judicial administration

1. Chapter 2, supra.

in our country, the nature of our Constitution, which is not federal"

in the traditional technical sense, the hopes and expectations of liti- gants to have ﬁnal verdict from the Supreme Court, at least in im- portant matters, and other relevant facts, which are special to the administration of justice in India, would make it unreasonable and certainly unfeasible to invoke the analogy of the United States in- considering this point. Therefore, according to them, in its broad features the functioning of the Supreme Court must continue, as at present. In regard to the problem of growing arrears, the view of these two members is that the proper solution to the problem is to appoint. large number of Judges in the Supreme Court.

Basis of our conclusion 3.40. We ought to add that, in our present Report, in dealing' with the issues pertaining to the scope and extent of the jurisdiction of the Supreme Court, we have not based our recommendations on either of the two views which were expressed in our discussion- We thought that the conclusions, to which we ultimately arrived unani- mously and which are the basis of our relevant recommendations, do- not need a ﬁnal decision on this issue. That is why, two members of the Commission, who did not agree with the majority view in this matter, did not think it necessary to elaborate their point of view by writing a minute of dissent, or by suggesting that the theoretical basis of their point of view should be expressly stated in the introductory observations.

3.41. Our conclusion, therefore, is that article l34(l)(c) of the Constitution should be revised as follows:-----

Conclusions "(l) An appeal shall lie to the Supreme Court from any judgment, ﬁnal order or sentence in criminal proceeding of a High Court in the territory of India if the High Court-

[(_a) and (b) as at present] (C) certiﬁes----

(i) that the case involves a substantial question of law of general importance; and

(ii) that in the opinion of the High Court, the said question needs to be decided by the Supreme Court.

"Provided that an appeal under sub--clause (c) shall be subject to such provisions as may be made in that behalf under clause (1) of article 145 and subject to such conditions as the High Court may establish or require."

Appeals to the Supreme Court on special leave Appeals by special leave under article 136 3.42. We now proceed to consider whether it is necessary to modi- fy article 136 111 View of articles 133(1)(c) (as amended) and 134(1)(c) as proposed to be amended in this Report. Article 136 of the Consti- tution reads as follows:----

Special leave to appeal by the Supreme Court "136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribu- nal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces."

The wide scope of article 136 3.43. The plenary nature of the jurisdiction' under article 136 is well recognised. The language of the article is very wide.

The width of the jurisdiction is brought out by several words used in the article. The appeal could be against the decision of any court or tribunal. It could be in respect of any species of judicial determina- tion, i.e., against a judgment, decree, determination, sentence, or order. And the order sought to be appealed from could be in any cause or matter. Nevertheless, the possibility that undue advantage may be sought to be taken by litigants of this extensive and all-embracing jurisdiction could not be ruled out; litigants may attempt to circumvent the restrictions under articles 133 and 134 by resorting to article 136. In this background, it appeared to us appropriate to elicit opinion as to whether the scope of article 136 should be restricted from the point of View mentioned above.

The question posed 3.44. Accordingly, Question 2 in our Questionnaire reads as fol-

lows:--

Q.2. Would you favour any modiﬁcation as to the scope of ap- peal under article 136 of the Constitution, against judgments of High Courts?

1. Para 3- 42, supra.

Recent amendment of article 133 3.45. The main point to be considered in regard to this article is if the article should be suitably amended so as to exclude from its 'purview, ordinary civil and criminal appeals. In this connection, atten- tion is invited to the recent amendment* of article 133 (It is proposed that article 134 should similarly be amendedi). The suggestion was that so far as civil and criminal appeals are concerned, it is only those appeals which satisfy the requirements of article 133 (as amended) and article 134 (as proposed to be amended)" that should reach the Supreme Court, and no other.

Figures of appeals pending in the Supreme Court 3.46. It may be relevant, in this connection, to note the number of appeals by special leave (in the Supreme Court). At the close of the last three years, the ﬁgures of appeals in the Supreme Court under articles 132 , 133 and 136 were as follows':-

1969 1970 1971 _._. .A._.. ,..(.~#._, ((1.) Number of .-'ippealsatthe opening of the F year. 4,209 4,875 5.430 ([1) Number 0fdDp('a.iS ixistituterl (luring the year . . . . . . . . 2,712 3,5513 3,175 (0) Number ofappoals disposetl of during the year . . . . . .

2,046 [.752 1.437

(d) Nuznbe-: oi".ip;)ealspe;;L1imz at the end ofbhe year .. . . . , .. 4,875 3 $373 6.074 NOTE: These ﬁgures are under article 132 , 133 and l36 of the Constitution. Separate ﬁgures under each article are not avail- able-

3.47. It was apprehended that a desire to circumvent articles 133 and 134 might result in an appreciable increase in the number of ap- plications for leave to appeal under article 136.

The scope of article 136 3.48. We have already referred' to the fact that the jurisdiction .-under article 136 is plenary. The relationship of Article 136 of the

1. Constitution (30th Arneudment) Act, 1973.

3. See discussion as to Question 1.

5. See discussion as to Questioi 1.

i'. Statement No. S----5.

5. Para 3- 43, supra.

Constitution with the other articles can be illustrated by referring to» a few situations where the article has been resorted to:--

(1) Article 136 has been utilized even where an appeal is barred.

by a speciﬁc constitutional provision, such as article 133(3),. quoted below:--

"(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree orﬁnal order of one judge of a High Court."

(2) Article 136 has been applied where a certiﬁcate under article

133. or 134 was wrongly granted, but the case was one in which special leave could appropriately have been sought under article 136.

(3) Similarly, resort to article 136 has been regarded as permis- sible where a certiﬁcate under article 133 or 134 was wrongly refused.

(4) Leave has been granted under article 136 even where the case could have been dealt with, and an appeal as a matter of right would have been competent, under another article, e.g. zirticle 132(2), which reads as follows:--

"(2) Where the High Court has refused to give such a certi-

ﬁcate, the Supreme Court may, if it is satisﬁed that the case involves :1 substantial question of law as to the iriterpretation of this Constitution, grant leave to appeal from such judgment, decree, or ﬁnal order."

Gist of the replies 3.49. Opinion received by us on this question reveals strong op- position to curtailment of this jurisdiction of the Supreme Court. It has been stated that it is almost impossible to anticipate all possible situations in which the discretion under article 136 should be exercis- ed. Many of the replies stress the desirability of preserving the existing wide discretion of the Supreme Court, and point out that it may be assumed that the discretion is exercised sparingly and only in cases of exceptional nature. The overwhelming majority of the replies on the Question are against the imposition of limitations suggested in the query.

In particular, it may be stated that some Judges' of the Supreme Court, in a written reply on our Questionnaire, do not favour any modiﬁcation in the scope of appeal under article 136 of the Constitu- tion against judgements of High Court.

1. S.N0.50.

Other important suggestions on question 2 3.50. Some of the other important suggestions with reference to this question are as follows:--

One Labour Department' of a State Government favour modiﬁca- tion in article 136 to the eﬁect that appeals should be allow- ed only in cases where substantial points of law are involved.

3.51. Four Judges" of a High Court have expressed the V'iG\«V that the scope of appeals by special leave under article l36 should be limit-

ed to cases where a substantial question of law relating to interpreta- tion of the Constitution or a substantial question of law oi" general importance is involved, or where the High Court has improperly re- fused leave under articles E33 and 134 of the Constitution.

3.52. There is a stiggestion' that appeals under article 136 should be limited to cases where substantial questions of law of general im- portance or questions of constitutional law of general importance arise. Object of the Question 3.53. We may state here that our object in putting the question was to elicit views from those who have practical experien.:° of the ways litlgftiiis on an ir~- itant aspect, iiatnel}/. whether titer the limitation eiiacieu or prop: .1 with reference 'zo the scope of appeals under articles :53 illlti 1.31;'. there was a possibility that ll'l't.?'3 lli2'll!(i-

tions may be cit; 1'./er;t.3:i by parties ingeniitusly resorting to article

136. it sitarrested ._ 5') 3.54. it app" s, lzowcaer, that any such restriction has l':'.;CI] re- garded as iiiativi able by most Jntiges and most iudges and Members of the Bar.' But, apart from this opinion evidence to which we, no doubt, attach considerable importance, on principle, it seems to us that, having regard to the history of judicial administration in our country and the nature of our constitutional and judicial set-up, conferment of comprehensive powers on the highest court in the country is justiﬁed. We feel that the very existence of this power may be expected to exercise a salutary check on all judicial and other bodies where deci- sions are subject to the jurisdiction in question.

Leave granted sparingly 3.55. Having reached this conclusion, we ought to add that we have no doubt that the very width and comprehensive character of the

1. S. No. 3'3 (.-\s~;ista:it Seci-etary, Labour Department,G0vei'iiment of "Y-st Bengal.

3. S. No. 50

3. S. Nos. 2] andl9.

'. Para 3- 49, supra.

power conferred on the Supreme Court by Article 136 will naturally make the approach of the Court very circumspect. cautious and care- ful in dealing with the applications for special leave under the said article. In fact, that is the View which has frequently been expressed by the Court itself.

3.56. It is well established that grant of special leave under article 136 is a matter of discreaion, and not of right". Being a constitutional power, the power of the Supreme Court under article 136 is. beyond the reach of legislation'; and the over-riding power is wider than the prerogative right exercised by the Privy Council". But the Supreme Court will grant leave only in special and exceptional cases, where it is manifest that by the disregard of the forms of legal process or by violation of the principles of natural justice or otherwise, substantial and grave injustice has been donei Lord Simon's L. C. observations 3.57. In 1941, a statement5 was made by Lord Simon, L. C. pre- siding in the Judicial Committee, in which he ﬁrst enunciated the prac- tice in general terms; "Broadly speaking, the Judicial Committee will only interfere where there has been an infringement of the essential principles of justice."

Though the Supreme Court's jurisdiction under article l36 need not be equated to that of the Privy Council, the above statement, gives an idea of the broad considerations on which leave will be granted in criminal cases.

1 JIL no u'. The .151'.-'3, A.I.3. ';")7i S93'). 1050, 1053. 2 Liiilemwzr V. Biéeshwzr Prasad, A.I.R. 1966 S.C. .35'), 50.3.' (1966) 2 S.('.1}. 241, 3 Dmiqa Shrmlcer v. Thakur Rzguraj Singh A. LR. 1943 S.C. 520, 522; (1955) S.C.R. 267.

' State of Andhra Praclesh V. I.S.S. Prasad Rao, A.I.R. 1970 S17. 6453. 65] 5 Mulmmmtul Nawaz V. R. (1941) LB. 68 LA. 126.

CHAPTER 4 PETITIONS FOR WRITS BEFORE THE SUPREME COURT Introductory 4.1. We propose to deal in this Chapter with two questions con» cerning petitions for writs before the Supreme Court.

Disputed questions of fact Petitions under article 32 4.1A. Article 32 of the Constitution reads as follows:--

"32. Remedies for enforcement of rights conferred by this Part.~~--

(l) The right to move the Supreme Court by appropriate pro-

ceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue direc- tions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of any rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

"(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitu-

tion.

4.2 & 4.3. Question 3 in our Questionnaire reads thus----

Question 3 "3. (a) Do you favour the view that in petitions to the Supreme Court under article 32, disputed questions of fact should not be gone into?

(b) If so, what course would you suggest for the trial of issues of fact in such petitions?

(c) If not, do you think that evidence should be recorded in a petition under article 32 in the same manner as in a suit?"

42 43

Gist of the replies

44. With reference to this question, a very large number of re- plies are for maintaining the status quo and are opposed to any amend- ment. This constitutes, by far, the largest majority. A very small num- ber consists of replies which favour restricting the trial of facts to aﬂi- davits, without oral evidence.

There are a few other suggestions also.

Views of some Judges of the Supreme Court

4.5. Some Judges' of the Supreme Court state in their reply that, as a matter of practice, the Supreme Court does not go into questions of fact in petitions under article 32 of the Constitution. Hence, there is no need to make any change in the law.

Nature of the remedy under article 32 4.6. The present position is that if a petitioner makes out a case of violation of his fundamental rights, the grant of the appropriate writ by the Supreme Court under article 32 is not discretionary, but is a matter of right. In one of the leading cases? on the subject, Das, C. J., said that neither the existence of an adequate alternative remedy, nor the fact that the petition raised disputed questions of fact, justiﬁed the rejection of a petition under article 32, if it established a prima facie case of actual or threatened violation of fundamental rights. The Chief Justice said that ordinarily, disputed question of fact could be decided on aﬂidavits. In some cases, the court may consider it desirable to allow the parties to put in further aﬂidavits, or may issue a commis- sion, or set down the petition for trial on the evidence, and this had been frequently done on the Original Side of the Calcutta and Bombay High Courts.

Remedy--a fundamental right 4.7. This liberal view is largely attributable to the fact that article 32 itself confers a fundamental righta. It is often stated that a special responsibility is laid on the Supreme Court in this matter.

Duty of Supreme Court in petitions under art. 32 4.8. The Supreme Court has pointed out' that "article 32 does not merely confer power on the Supreme Court (as article 226 does on the High Courts) to issue certain writs for the enforcement of the

1. S.N0. 50.

3. K.K. Koohunni v. State of.Mw1ras, (1956) Supp. (2) S.C.R. 316, 326; A.I.R. 1959 S.C.334, 336.

3. See para. 4- 8, infra.

'. Romesh Thapper v. State of Madras, (1950) S.C.R. 594, A.I.R' 1950 SA». 124 /( Patanjali Sastri J. delivering the majorityjudgmont) .

'Petitians 4!.

rights conferred by Part III, or for any other purpose, as part of the general jurisdiction." Article 32 provides a 'guaranteed' remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. "This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights."

Nature of jurisdiction under articles 32 and 226 4.9. In one sense. the jurisdiction conferred on the Supreme Court under article 32 is narrower than that conferred on the High Courts by 'article 226. As is often pointed out, under article 226, the High Courts are empowered to issue certain writs or orders for the enforce- ment of the fundaniental rights as well as "for any other purpose"; whereas. article 32 is limited to the enforcement of fundamental rights. But" the right to move the Supreme Court under article 32 to enforce the fundamental rights is itself a fundamental right, and the authority conferred on the Supreme Court by this article is coupled with a duty to exercise that authority. Exercise of authority under article 226. is discretioiiary. but not the authority under article 32. That is a point which has ':0 be borne in mind in considering the question which we are discuss:ir:g in this Chapter.

Relevance of statistics 4.10. For a ctfiisltleration of the question whether an amendment of the (_'ons!f';t.;tion is needed in respect of trial of questions of fact, a study of the mu her of petitions disposed of by. or peméizt-g in. the Supream, Court is; desirable.

'.srV.s.-er! ef during 1969-70 4.11. It 1'-ppears. that the petitions for writs disposed of by the Supreme Court? during 1969,, 1970 and 1971 were 471, 616, 396 res- pectivszly. and even out of these, many were decided in limine.

Statistic: zvegarding institution and disposal of petitions 4.12. The number of petitions" pertaining to writ jurisdiction of the Supreme Court, pending at the close of three years (1969. 1970 and 1971) was as follows:--

(41) T'Tt1nn'rz-rwfpvtitioz s at the opt-um; ofthc year' . . . .. I91 249 938 'M Nunioer -vfpetitioris ll'iSili1ll('tl(l'l7'lIi£Y the year .. .. .. .. 538 656 469

-. Para. 4' 8, .s2/pr-/.

2. Statement 1\'o.C\'--»5.

3. Statement No. .9» 75.

,.....o 45

(c) Nuinber nfpctitionsd disposed ofduring the year 471 616 396 (Ill Nntnibr,-rofpetitions pending at the end of the year . .. . . . . 248 258 361 (ea) l'o*.ii,ion.< rlisiiiisseil in liminc during the ye :r' .. .. .. .. 192 I302 219 NorE:--Figures of column (e) are also included in the ﬁgures of column (C).

No change recommended 4.13. Having regard to the very signiﬁcant role which article 32 is intended to play in the enforcement of fundamental rights conferred on citizens by Part III, it would, we think. be inappropriate to seek to introduce any limitation in the exercise of the Court's jurisdiction under this article in respect of disputed questions of fact. It is true that sometimes, the Court may ﬁnd it inexpedient to decide disputed questions of fact on atlidavits. In such cases, the Court may adopt any of the alternative courses to which the Chief Justice has referred in K. K. .R.'-:7:/2:':2i V. State of Madras.' In any case, this is a matter which must Le left to the discretion of the Court, and it would be unwise $_lSOllZ1blC to seek to introduce any limitation on the exercise of '5 lit to move the Supreme Court under article 32 even though on of the petition may raise a disputed quest/'oi; of fact.

l Grant of Interim Stay linterim relief in petitions under article 32 4.14. in conncctiori with the jurisdiction of the Supreme Court to issue writs" uzider article 32 of the Constitution, there is another question to be considered. This question applies to the High Courts also, since the High Courts also have jurisdiction to issue writs. The compiaint in regard to such writ petitions is that sometimes such peti- tions are filed mainly to gain time by obtaining stay orders, and ulti- mately it is found that the petitions do not involve any question which justiﬁes the interference of the court. In order to prevent the institution of unsubstantial or frivolous writ petitions, a suggestion which we had to consider was, that in exercise of the jurisdiction to issue writs, an interim stay or injunction should not be issued, 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 injunc- tion are ﬁled in court and served on the opposite party.

1. Para 4' 6, suprrt.

3. See queation 46 Queeﬁon 4 4.15. This point is, we have stated', common to the writ jurisdic- tion of the Supreme Court and the High Court. In so far as the Supreme Court is concerned, Question 4 in our Questionnaire was as follows:~--

"In relation to the grant of ad interim stay by the Supreme Court, in petitions under article 32, do you favour the same limita- tions as have been suggested below' in relation to the High Courts?"

Interim day often prayed 4.16. Figures relating to stay granted by the Supreme Court in petitions under article 32 are not available? But it is very likely that writ petitions are sometimes ﬁled before the Supreme Court, mainly for obtaining interim stay.

Recommendation in Report on C.P.C.

4.17. It may, at this stage, be useful to mention that, in our Report' on the Code of Civil Procedure, the following recommenda- tions were made for amendment of the provisions of that Code as to the issue of temporary injunctions--provisions mainly contained in Order 39 of the First Schedule to that Code:------

(i) The following proviso should be inserted below Order 39, rule 3--

"Provided that where an injunction has been granted without notice to the opposite party--

(a) the period for which it shall be in force as initially ﬁxed shall not exceed one month;

(b) hearing of the application for injunction shall, as far as practicable, be ﬁnished within one month; and

(c) if it becomes absolutely necessary to extend the period for which the injunction is to remain in force, the exten-

sion shall not exceed ﬁfteen days, except with the consent of the opposite party.

1. Para. 4' l4,.supra.

3. See Question 5.

3. A. proforma (Statement No. 6- 2) had been prepared for the purpose, but the ﬁgure: were not readily available.

9. 5 Lth Report (Code of Civil Procedure), para 39-18.

"Provided further that where an injunction is granted on the plaintiffs application without notice to the opposite party," the court shall, before granting it, require the plaintil to ﬁle an aﬂidavit stating that a copy of each of the follow- ing documents has been served on the opposite party by delivery to him, or where such service is not practicable, by sending it to him by registered post----

:a)

(b)

(c)

(d) the plaint, the documents on which the plaintiff relies, the application for injunction, and the aﬂidavit or other documents on which the applicant relies:

"Provided further that if a party, in an application for temporary injunction or in the supporting afﬁdavit, has knowingly made a false or misleading statement on a material particular, and the injunction was granted without notice, the court shall vacate the injunction unless, for reasons to be re- corded, it considers it just not to do so":

"Provided further that where an order for injunction has been passed after giving a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party, unless there has been a change of circumstances, or, unless the court is satisﬁed that the order has caused undue hardship to that party."

Reasons for above safeguard:

4.18. We may state here that so far as the issue of temporary in-

junctions under the Code of Civil Procedure is concerned, these safe- guards had to be thought of in view of the widespread feeling that many suits were delayed because of the grant of temporary injunctions ex parte, and injustice was often done to the opposite party (i.e., the party against whom the injunction is issued). The restrictions' suggest- ed are self-explanatory. It appeared to us desirable to consider the question whether somewhat similar conditions should apply in rela- tion to the grant of stay in writ cases also.

Gist of the replies 4.19. A large majority of the replies to question 4 both from Bench and the Bar are opposed to any amendment on the lines put- forth in the question, and only a small number favours it.

\ 48 4.20. Some Judges' of the Supreme Court, whohave favoured us with their written views, are also against any provision in the Consti- tution to limit the power of the Supreme Court in the matter of grant- ing ad interim stay in petitions under article 32. The object, they say, could be achieved by making suitable rules under article 145 of the Constitution. .

4.21. One of the other comments states that the prevailing situa- tions in the country are such that the aggrieved citizens are filing large number of writ petitions, a good number of which ends in success. If the power of granting stay under article 32 or article 226 is restricted, the purpose for which those articles are intended would be frustrated to a great extent.

Trend of opinion 4.22. It appears, thus" from the views received, that judicial and professional opinion generally does not consider it necessary to intro- duce such elaborate limitations. Our principal object in putting a ques- tion on the subject was to elicit views as to the machinery to be devised for saving the time of the Supreme Court, often taken by an applica- tion for interim stay ﬁled without adequate material and also avoiding injustice to the respondent by obtaining interim stay. The trend of opinion, however, seems to suggest that no serious problem of abuse of jurisdiction exists.

Rules of Court 4.23. We should also refer to the rules made by the Supreme Court on the subject of notice of motion. The practical result of these rules is the imposition of limitations substantially of the same nature as those recommended by us in relation to the grant of interim injunc- tions under the Code of Civil Procedure.

The relevant rules as to notice of motion are as follows' :--

"l. Except where otherwise provided by any statute or prescribed by these rules, all applications which in accordance with these rules cannot be made in Chambers shall be made on motion after notice to the parties alfected thereby.

2. Where the delay caused by notice would or might entail serious hardship, the applicant may pray for an ad interim ex parte order in the notice of motion, and the court, if satisﬁed upon affidavit or otherwise that the delay caused-by notice would

1. S. No. 5 '.

'. Para 4-19, supra.

3. Para 4-17, supra.

'. Supreme Court Rules, 1966---Order 8, Rules 1 and 2.

entail serious hardship, may make an order ex parte upon such terms as to costs or otherwise, and subject to such under- taking being given, if any, as the Court may think just, pend- ing orders on the motion after notice to the parties affected thereby.

3. Where an ex parle order is made by the Court, unless the Court has fixed a date for the return of the notice, or other- wise directs, the Registrar shall ﬁx a date for the return of the notice and the application by notice of motion shall be posted before the Court for ﬁnal orders on the returnable date".

No change recommended

424. In our op€nion, these rules are on the whole, satisfactory. Orders passed in accordance not with them are not likely to cause in- justice. We do not. therefore, recommend any amendm€"f in this re-

gard.

CHAPTER 5 PETITIONS FOR WRITS BEFORE HIGH COURTS Interim Stay Jurisdiction of High Courts to issue writs 5.1. A similar question relating to the jurisdiction of the High Courts to issue writs needs consideration. The Constitution has de- clared certain rights to be fundamental. For the purpose of the speedy enforcement of the rights--as we have already pointed out',-the Constitutiont has conferred on the Supreme Court' and the High Courtsza powers to issue "directions, orders and writs". Besides, the Constitution has also conferred on the High Courts power to issue such directions, orders and writs "for any other purpose". It has been stated,' that presumably the object of giving this power was to put the High Courts substantially in the same position as the Court of the Queen's Bench in England.

Article 226 of the Constitution reads as follows:--

"226. Power of High Courts to issue certain writs.--(1) Not- withstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those ten-itories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, qua warranto and certiorari, or any of them, for the enforce- ment of any of the rights conferred by Part III and for any other purpose.

(IA) The power conferred by clause (i) to issue directions, or-

ders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of ac- tion, wholly or in part, arises for the exercise if such Gov- ernment or authority or the residence of such person is not within those territories.

1. See chapter 4. supra.

'. Article 32.

'.3, Article 226.

3. Article 226.

'. E'lection C'mnm,[ssi/Ler v.S'aJca Ven/:attlSu.ba Rao. (1953) S.C.R. 1144,1150.

5 > 51 (2) The power conferred on a High Court by clause (1) or clause (IA) shall not be in derogation of the power con- ferred on the Supreme Court by clause (2) of article 32".

Use of writ jurisdiction 5.2. It is common knowledge that extensive use has been made of this jurisdiction of the High Courts, not only by setting aside in- valid laws and subordinate legislation, but also by nullifying admi-

nistrative orders which infringe fundamental or other rights and by supervision 'over quasi-judicial authorities.

If, for example, a High Court holds a law to be invalid, it will ordinarily issue a mandamus or give a direction commanding the person enforcing or seeking to enforce the law to refrain from doing so.' rits and Subordinate legislation 5.3. When a writ petition challenging the validity of subordinate legislation is ﬁled and is successful, the High Court usually issues a writ in the nature of mandamus, requiring the authority concerned' to forbear from enforcing it.

Writ jurisdiction and administrative orders 5.4. The writ jurisdiction has been most frequently invoked to challenge administrative orders. It is not intended to enter here into a discussion of the possible grounds of such challenge. It is suﬂi- cient to refer to a few of the important grounds, such as, mala ﬁde bias. non-observance of rules of natural justice or non-compliance with the Constitution, the law or rules or other subordinate legis-

latioii.

Supervisory jurisdiction of High Courts 5.5. Another important aspect of the writ jurisdiction is its use as 'a means of ensuring the supervision of the High Courts over the actions of quasi--judicial and administrative tribunals.

Scope of the jurisdiction 5.6. It is thus clear that the scope of article 226 is very wide and its provisions are intended to afford to the citizens a speedy remedy against illegal executive or administrative actions as well as illegal invasion of their Fundamental Rights. On the whole, this arti- cle has served a very useful purpose and thereby sustained the doc- trinedocf the rule of law, on which our democratic way of life is fouii e .

1. Jllohl. Hcmif Qurcshi V. S!/1J0. cfBi'kr1r, (1959) S.('.R. 629.

" We-"are aware that, in some cases, in their zeal to do justice as between citizens and the State, some High Courts have occasionally entertained' petitions which strictly do not satisfy the requirement of article 225 and have granted relief, overlooking the limitations ob- viously involved in the exercise of the power conferred by the arti- cle. But, such unjustiﬁed exercise of the power in a small number of cases does not detract from the signiﬁcance and usefulness of the conferment of the power itself.

Interim relief in Writs 5.7. However, our point in emphasising the wide scope of the jurisdiction is this. When the court issues an interim order, pending the determination of the petition, should not the party seeking in- terim relief be required to give notice to the opposite party of the application for interim relief? Such a course could be regarded as desirable. having regard to the wide range of activities1 likely to be affected by petitions ﬁled under article 226. The matters with which such activities have to deal, affect governments, local authorities and citizens: and. for the effective functioning of the administration at its various levels, it is often essential that the authoritative determina- tion of questions should be obtained with the minimum of delay.

Complaint about frivolous petitions 5.8. 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 justiﬁed the interfe- rence of the High Courts under article 226. In order to prevent the institution of unsubstantial or frivolous writ petitions, a suggestion is made that court empowered to issue a writ should not issue in- terim 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.

Statistics indicating the grant of ad interim stay in petitions 5.9. We have collected statistics relating to ad interim stay granted by the High Courts in petitions under article 226. These show' that the proportion ofcases in which such stay is granted is not negligible. The ﬁgures are as follows:

ALLAHABAD ((1.) No. ofcnscs in whfch stay was granted during the year (1971), in petitio; s under Article 226 .. .. .. .. . . . . 3.419

(b) l\To.0feases in Wl1ichst:ty\vasg1'anted during theyearafternotice, ' in such petitions .. .. .. . . .. 867

1. See Paras 5- 2 to 5- 6, 5'11]/rtl.

BOMBAY ((1) Nu, nfcases in which stay was granted during the year (1971), in pz,-,:i'.i<>,-is Iltuler Article 226 . . . . - -

(7)) Ni). vie 1%,-'_SlH_ \Vl1iClL~3te1y'\V1S g;r.i~i1u.l<lu1'ing the year after notice, iiln :.:).;»:lll10;ts .. -

CfAL(7'L.' '1' TA

(a) No. ofu uses in which stay was 3Il'd/!l1t3(1(1i1I'1!lg the year (15171). inpetizi .;sunder Article 226 .. .. .. ..

(72) Na. ofe-.:-1»: l 1 \Vl11Cl). stay was granted '1uring the year after notice, 1-; .=xu<:li petitions .. . . . -

<}7.' ; AP.A'I' («Ll .'\.' 1. 3% aw .i 5 which stxv WJS gr' Jed (luring the year (:."-Ti), 1'). petitii -»..s 11 ivler Article 2243

(b) Nu. 0fow1~:exi::_ wliiehst-liv W.'.SQI'8;:l ;-d duringtheyearafter notice, 1lSl1Cl1P£'il11').i§ .. .. .. .. .

K E RALA (a NO. off; 15 as in \vl1el'i ' w.a'< rrz'."._v1ted duriu rt e V0-Li' '1$)7l . 111 pet: .1» is '.ll'illu3I' i~srt1¢;lv.: 226 . .. .. ..

(7)) No. !)fc.13es i'1 \v:iielist:1_v was gm, [ted during the year after notice in such. petitions .

MADHYA PRADESH (:1) No . ofcases i 11 which stay was granted during the year (1971)

(b) No. of cases in which stay WJ..:' gm11t.e(l(luriii_I,; the year after notice, in each. petition MYSORE

(a) No. ofcases in which stay was granted during the year (197l),in petitions under Article 226 . . . . . . . .

(b) No. of cases in which stay was granted during the year after notice, in such. petitions , . . , _ . .

PATNA

(a) No. of cases in which stay was granted during the year (1971), in petitions under Article 226 . . . . . . . .

(b) No. of cases in which stay was granted during the year after notice, in such petitions . . . . . .

598 154

~1 4 _l4 5,032 864 260 48 1,143 Information.

is 11 0 t available.

PUNJAB AND HARYAN A

(a) No. ofcases in which stay was granted during the year (1971), in petitions under Article 226 . . . . . . . . 2,315

(b) No. of cases in which stay was granted during the year after notied, in such petitions .. .. .. .. 73 RAJASTHAN (It) No. of cases in which stay was granted during the year after . . . . . . . . 126 notice, in such petitions 5.10 The percentage of stay granted during the years 1969, 1970 and 1971, without notice in writs under article 226 by High Courts with reference to the total number of writs disposed of during those three years works out as follows '"2:

High Courts Percentage

1. Allahabad High. Court . . . . . . . . . . 23%

2. Bombay High Court . . . . . . . . . . 49%

3. Calcutta High Court . . . . . . . . . . 42%

4. Gujarat High Court. . . . . . . . . . . 23%

5. Komla High. Court . . . . . . . . . . 67%

6. ]ln.«1?i_vn Pradesh High Court . . . . . . . . 11%

7. Jl:i=I.v-as lligii Court . . . . . . . . . . 19%

8. Orissa High Court _ , , , _ _ , , _ , 18%

9. Punjab & Haryana. High Court . . . . . . . . 47%

10. Patna High Court' . . . . . . . . . . 7% ll. Rajns'(sa'i High Court . . _ , . , , . , . 51% Total percentage . . ---- 32%-appx.

' 1. Calculation based on ﬁgures of disposal given in statement No. Hwl and ﬁgureg of interim stay in Statement H--2. These were collected by the Law Commission from the High Courts for the year concerned.

9. Arranged alphabetically.

3. 1' via 3:3.'-:2 iztgre for the Pitna High Court is based on the ﬁgures for the year 1970 and 1971.

Figures for 1969 have not been received.

Question 5 5.11. In order to solicit views on the subject, Question 5 was put in our Questionnaire as fo11ows:--

"Q.5(a). Do you agree with the suggestion that in writ petitions to the High Courts under article 226 of the Constitution, stay should not be granted, save in exceptional cases?

(b) Do you favour an amendment of the Constitution to the effect that unless the Court, for special reasons to be re-

corded, otherwise orders by reason of exceptional circums- tances, no interim order for stay shall be asked for, in a petition under article 226, without ﬁling evidence before the High» Court that (i) notice of the intention to move the Court at a speciﬁed time and for speciﬁed relief has been or shall be given to the opposite party; and (ii) copies of all documents ﬁled in Court and intended to be relied upon in support of the application for interim relief have been, or shall be served upon the opposite party?"

'Gist of copies 5.12. A very large majority of the replies to question 5 are op- posed to an amendment of the Constitution on the lines suggested in the query. This includes a very large majority of the High Courts and High Court Judges that have sent replies. They do agree that stay should not be granted except in exceptional cases. But they are not all in favour of any constitutional amendment in this regard. Some of them state that the necessary provision can be made in the rules, but most do not go even so far. A very small minority' favour an amendment, as suggested in the query.

Views of some Judges of the Supreme Court 5.13. Some Judges of the Supreme Court agree" with the spirit of the suggestion that in writ petitions under article 226 of the Constitution interim stay should not be granted unless the Court. for special reasons to be recorded, -otherwise orders by reason of exceptional circumstances, They, however, feel that the provisions regarding notice to be given to the opposite party and copies of an documents may be done by making appropriate rules by the High Court, and they are not in favour of amending the Constitution for this purpose.

1. E.G.S. No. 8; S. No. 19; S. No. 2l;S. No. 32; and S, No_ 33 s_No_ 45 ands No 49 '. S.No. 50.

In this background, we shall now consider the question of stay ad-interim.

"Stay" explained 5.14. "Stay" is of course, a convenient expression, which may be taken as covering several situations, important amongst which are the following:----

(:1) Stay of proceedings held before a quasi-judicial authority (This is most frequently granted when the ultimate writ applied for is of certiarari);

tb) stay of executive action (usually prayed for when mando-

mus is s0ug_ht).

(:32 may of administrative proceedings.

\'{nh reference to category (b) above, what is sometimes called "a1m'cz'paiory mmzdunzus-", is also relevant. Alleged illegal action is sought to be prevented thereby.

Extc-rz' oi" power' to issue writs 5.15. Considl ation of this and other questions concerning writs in\o!\.u. or claiiiicatioii of some Vital points. It has been observed, with .=xf3:rence to the power to issue writs',----

"Article 226 of the Constitution is not addressed to the Court in the langiage oi' an inexorable command. By it the Court is constituted the trustee of :1 high power for a high purpose maintaining ;uqili-

britj. =\xcc= 'hc two antithetical off springs of fur mzfuralia abso- lute, iilu Rights of Man." Its constitutional origins, its immence potent, 11;: for g><)(i and laarin alike counsel the Court to exercise the power with bxcoming prudence and reason, so that on the one hand, the E.'.:;:ie 1113.}; not be unduly hampered in its legitimate domain, and on the other hand. the essential rights of man may not be abridged un- necessa. ly."

A delicate balance between the two aspects referred to above has, therefore. to be achieved.

Supreme Courts observations as to the power to issue writs 5.16. As the Supreme Court has observed:

"In view of the express provisions in our Constitution, we need not look back to the early history of the procedural technicalities of these writs in English law, not feel oppressed by any diﬂ'erence or

1. JI~,9fr1'/H7/srL27rL V. State of I'. P.. A.I.R. 1960 Alltilmliarl 559. 56}, para 18 (S.N., i'\\'i\'(>(1i J.)

2. 0tt'oGierkec Barl:er's TransIati0n),Nat11ral Lawandthr-Theoryof Society, l500-- 1800--Beacon, RC'. Edi. at pages 41 and l13------l 14.

change of opinion expressed in particular cases of English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in an appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exer- cise or jurisdiction in the matter of granting such writs in English law. "

Illit;.'."§E'}1 stay without notice----«.=ﬁect of 5.17. What we are concerned with at the moment is the subject of interim stay granted in writ petitions. Occasionally, such stay, if issued without notice, causes hardship.

High Court's Power to grant interim stay discussed 5.15%. There has been some discussion even about the existence of a power to issue interim stay in writ cases. It has sometimes been 2:i'g;:ed that {lie High (1:~ur= has no power to issue ad interim writs. In an Allahabad case, for example, some doubt raised on the sttbiect."

Bf,' and large. howe'-.er. it is assumed that the power to issue an

-:.:rZ L'I'ii}7 order exists '-N: have not come across any other judicial , 'i.'.c;»=. on ti»: §'.i':)§k'.\:i.

. there. the pm-'oi::ni is one of ensuring that : "L3 in circumstances which lead to its :32'-.1': hearing 5. requ 1:rus=. (l»:'.c " hov' be;-"1 to crezu: ' . erve a state of affairs such thr: '.'ne court *.vou'7*l 7:: alﬁe, upon co cligzsion of full trial, to render l"'*<'D.niilfiflli cl .5" for either party. The pmlizeni thus is of recon-

? the interests 3' both parties. :1 justice to both.

'r ~.€l'C. Position in the U.S,A..

In the U.S.A., :2 serious problem arose" by reason of injunctions issued by (federal) rf:str'i«.:t courts, enjoining the enforcement of State unconstitutional statues. Opposition to this practice gave rise, in 1908,

1. 7'./,'. Ilrls/tppa Y. '1'. .\'rt7(L]2pIz (1933) I.§.(".P\.?5(|,25Fl::\.l.R. l9."34S.('. 440, (BK '.'iil;l1<Ar'jo:i, .T.\

2. /iv/rm -'77um/Z B7z,'Ltr'rL v.RnntCo*2,tro/ -ITLIZ ]]:;Fc(z'on Ojﬁcvr, Lucknow mm' anollzer, A.T.l'.. 1966 .--\l l. :'»T(FB).

3. Gezrerally, See "The Three Jiitlge District Court", (1963) 77 Havard Law Review

299. st for :1 preliminary order 58 _to an abortive congressional attempt to oust the jurisdiction of dis- trict courts to enjoin State statutes on the ground of unconstituiona- lity.' In 1910, Congress established the extra-ordinary "three judge court", with a direct appeal procedure, for such suits?

The Act of 1910 was motivated less by hostility to the granting of injunctive relief than by concern over the precipitate manner in which a federal judge sitting alone could frustrate carefully planned State policies. Congress seemed desirous of impressing upon federal judges the serious and drastic nature of the injunctive remedy."

What Senator Baoon, one of the sponsors of the Act observed' in 1908 is of interest for our purpose also. He said. "If these (federal) courts are to exercise the power of stopping the operation of the laws of a State and of punishing the oﬂicers of a State, then at least let it be done on notice and not hastily, and let there be the judgement of three judges to decide such questions, and not permit such dangerous power to one man."

5.21. The present law on the subject in the U.S.A. is as follows:--

Before a federal district court can grant an injunction against the enforcement of a State' of federal' statutes on the ground that the statute is unconstitutional, the case must be heard and determined by a three judge district court."

The relevant section of the Judiciary and Judicial Procedure Act' provides as follows:--

"Injunction against enforcement of State statute, three judge court required--An inter-locutory or permanent injuction res- training the enforcement, operation or execution of any Srate statute by restraining the action of any oﬂicer of such State in the enforcement or execution of such statute or of an

1. 42 Cong. Rec. 4849 (1908).

3. N0te--"Three Judge Court Reas:esse(l' ' (1963) 72 Yale. Law Journal 1646.

'. 42 Cong. Rec. 4853, referred to in N0te,"Tl1ree Jllilge Court Reassessed". (1963) 72 Yale Law_]'ournalI646.

4. See (1964) 28 U.S. Code 2281.

'. Also,in the case ofthe states,"an order made by an administrative board or com- mission acting under state statutes . . . . . . . .(1964) 28 U.S.C. 2281.

'. The composition and procedure of three judge district courts is described at length in (1964) 28 U.S.C. 2284.

order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitu- tionality of such stathte unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

5.22. As regards federal statutes, another section of the Judiciary and Judicial Procedure Act states' as follows:

"Injunction against enforcement of federal statutes: three-judge court required--

An interlocutory or permanent injunction, restraining the en- forcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of thre judges under section 2284 of this title."

Three Judge Courts 5.23. The three judge courts have ben at the centre of some of the major conﬁicts between national and State policy, particularly those involving economic regulation and segregation?

Recommendations in Law Commission's 54th Report 5.24. As regards our own law, we may mention that in our Re- port' on the Code of Civil Procedure. we had made recommendations for amendment of the provisions of that Code as to the issue of tem- porary injunctions. These have already been referred to"A .

Rules by High Courts 5.25. We may add that some limitations highlighting the need _for notice before the grant of stay in writ petitions, have been inserted in the rules of some High Courts.' 1 \Vl'('(i(i/)'-1-)2S1L'.S.('. 9282.

" 9-"0, ( «'1 Y >tx>."'l'lrroo Judge (7om't re-asso:»:sod", (1963) 72 Yale L.J. lC4('; ('3) " D-'~.'L'l'3})lYl0 »t,s--~I:ijmic:ioi.s", (1965) 78 H. L.I'.. 996, 10-18.

'A. Para -1' -1, supra.

3 Sec, 54th Report (Code 0fCivl Prosedure), Pam 19' 18.

' See Appendix to this Report.

Conclusion ' 5.26. We have already referred to the opinion evidence received by us on this question. We have careﬁilly considered that evidence and have come to the conclusion that, on principle, it will be inap- propriate to insert in the Constitution any speciﬁc provision in regard to the procedure which the High Courts should follow in granting interim orders of stay or injunctions on petitions ﬁled under article

226. We are aware that in many cases, as we have already pointed out', writ petitions are ﬁled, mainly, if not soley, for the purpose of obtaining stay and that stay granted indiscriminately. without notice to the respondent, may, in some cases, conceivably cause social injustice. If, for instance, stay is granted in regard to the enforcement of taxation laws, or of any of the provisions of bene- ﬁcial socio-economic legislation, without hearing the State in support of the validity of the impugned laws, injustice may ensure because speedy implementation of such laws is essential for the welfare of the :9_rn_i_iiunity. Occasionally, petitions ﬁled by students agair.-st orders passed by University authorities are intended merely to postpone the implementation of the impugned order and, if stay is granted in such petitions, it creates a sense of frustration and bitterness in the minds of zjgiyersities and in fact, tends to derogate from then autonomy.

5.27. But, on the other hand, while exercising their discretion in granting interim stay or injunction 'without notice to the ozher side. if the High Courts examine such petition carefully and refuse to grant interim stay or injunctions unless they are satisﬁed that not granting such stay or injunction without notice to the respondent would really cause irreparable hardship to the petitioner, then, there will'be no scope for complaint. This is a matter which must be left to be govem- ed by the rules framed by the High Courts. In fact, some High Courts have framed rules in this matter? In our view, a procedtizml matter, though of considerable importance, must normally be governed by the rules framed by the High Courts and should not be inducted in the document of the Constitution itself. That is why we do not pro- tzcse to recommend the addition of any clause in article 25 pertain- ing to the procedure which the High_ Courts should follow in granting temporary stay or injunctions in deahng with writ petition ﬁled under the said article.

Recommendation 5.28. Before we part with this topic, we should, however, like to recommend that the Mimster of Law & Justice may suggest to the ' Para. 5' 8, supra.

1 Sec par 5'25, supra.

I» 61 Chief Justice of India to take such action as he may deem desirable and expedient to see that all the High Courts make appropriate rules in this matter and that such rules are, as far as possible, uniform. The object of such rules should be to enable the High Courts to grant interim relief even without notice to the respondent only in exceptional cases and the rules should require that, ordinarily, a petitioner ﬁling .a petition under article 226 should, if he wants to apply for interim stay or injunction, serve a copy of his petition as well as a copy of his application for interim stay on the respondent and make an aver- ment to that effect in the writ petition itself. In other words, the rule should be so framed as to prevent abuse of the process of the Court tor obtaining interim stay in frivolous matters while safeguarding genuine cases, where a party has a legitimate point to urge in his writ petition and satisﬁes the court that without the interim order, his inte- rest would be irreparably damaged. We feel that making such a rule is very necessary in the interest of justice, both of the citizens and of the State.

Trial of disputed questions of fact 'Metbads to reduce delay 5.29. H..ving regard to the fact that petitions for the issue of writs under article 226 constitute a fairly large portion of the total civil judicial business of the High Court', we thought it proper to consider another problem pertaining to this jurisdiction, namely trial of dis- pitted questitms of fact.

Accordingly, the following question was included in our Ques- tiozinairer "Q6. With respect to the jurisdiction of High Courts under arti- cle 226 of the Constitution, do you favour the same limita- tions as to inquiry into disputed facts as have been suggested above, in relation to the Supreme Court?"

Supreme Court's view 5.30. As the Supreme Court of India2 has observed, the jurisdic- tion which the High Court exercises under Article 226 is extra-ordi- nary original jurisdiction, and it is well settled that Article 226 confers a discretionary power on the High. Courts to issu: appropriate orders and writs.

1 See discussion regarding Q. 5, supra.

3 State of U .P. v. Vijay AnadMaharaj,A.I.R. 1963 S.C. 946.

This jurisdiction is extraordinary or special original jurisdiction, as distant from the ordinary civil jurisdiction conferred by the Letters Patent.' 5.31. There are dicta in a case decided by the Privy Councilz to the effect that the power to issue a writ of Que Warranto is within the ordinary original jurisdiction of the High Court." The decision re- lates to the words "ordinary" and "extra-ordinary" as used in the Letters Patent of the Calcutta High Court, 1865.

5.32. We thought that having regard to this special jurisdiction, it may be" desirable to consider the points5 raised in Q. 6. Before we proceed to a consideration of the question, the present position on the subject may be examined.

Number of Writ Petitions 5.32A. The number of petitions for writs" pending in the High Courts at the end of 1971 was as follows':-

1 Allahabad . . . . . . . . . . 12336 2 Andhra. Pradesh . . . . . . . . . . 5029 3 Bombay .. . . . . . . . . 4227 4 Calcutta . . . . . . . . . . 1440

5. Gujarat . . . . . . .. . . 1,005

6. Kcrala . . .. . . . . . . 9,965

7. Marlhya Pradesh . . . . . . . . . . 1,292

8. Madras .. .. .. .. .. 4,684

9. M3 sore .. .. .. .. .. 6,634

10. O1'iSS2.1 .. . . . . . . . . 1,741

11. Patna . . .. . . .. .. 1,773

12. Punjab & Haryunzt . . . . .. .. . . 5,984

13. Rﬂjasthan .. .. .. .. .. 3,032 1 So»-3 ziiscussion in Venkatasubbaya V. District C'ollectorA.I.R. 1960 Andlira Pradcsh 381, 384, 385. ' 3 H:o:m'ul"I1us=an V. Bunwari Lal, A.I.R. 1947 P.C. 90, 93 (Sir John Beaumount).

3 For case-lxev, see Styr1,narara_yana 7lI'urthiv. I.T.A.T. A.I.R.1957 AlldlL.123,125, para. 3.

' For history ofthe Jurisdiction to issue writs, See~(a) Ryots of Garabamiha v. Zamindar of Pdflakimedi, A.I.R. 1943 P. C. 164.

(b) Venkataramam v. Secretwy of State, A.I.R. 1930 Mad. 896, 901;

(cl) 7'.0. Baaappa v. S. Nagga, A.I.R. 1954. 0. 440, 443, para 5. 5 Para 5.29, supra.

' '.7.ulcr artical 226.

" Based on statemﬁnt No. I:'I----1..

Questions of fact 5.32B. It would appear that as to the question how far, in a writ petition, the High Courts goes into questions of fact which involve the recording of evidence, a simple answer cannot be given- The following analysis of the representative judicial decisions will, to some extent, illustrate the various aspects of the question.

(a) There are decisions which hold that the Court will not ordi-

narily decide disputed questions of fact,' in proceedings for writs.

There are, in particular, decisions holding that the court will not decide disputed questions of fact if they require a protracted inquiryf or except in exceptional cases."

(b) But it is also established' that the High Court is not, as a matter of jurisdiction, precluded from deciding such ques- tions.

For example, the High Court would determine the facts if the jurisdiction of an administrative tribunal itself depends on ﬁndings of facts.' ' (ll; V-'B 1%» HI': 7 .\.l.R. l;)."v7 Pt. i(i:»';, ':60, Pt=.1\-;.x'; p} 10 Question dl)Ull1 llaiuzt: ufpar eular lanrij;

(b) I'Lzlz7rin C'7u.7n£gal Ce P7tarmacv:ut27cal Works v. State of 11.1'. A.I-R. 1964 A-P. 430, £33, P.-Lra l0 (Q11 ~stinn xvi: 'tht r chloral Ljdroate is :2 "I'10I';:01ii£'"; (3) Abdul B;/rik v. Urtian Of India, A.I R. 1964 Cal. 324, 326-327, perv 10 P B Mukcrji J.;

(/1) Jagirsingiz. v. State of Punjab, A.I.R.. 1964 Punj. 9 '~,9', Para 13 (Dispute as to accuracy «If Rent revenue rec0rds, dlStixig\1$hiI1g.Kar'is7l,a'nK7La7l/na V. the State of Punjab. A.I.R. 1962 Punj. 32,36.

2 See, f"! Exztnlpie, Union Of India V. T.R. Varma, A.I.R. 1957 S.C.882, 885, para. 6 (Dsmissal Of employee).

3 See far example, Mohamrrwd Ibrahim. V. Assansel Iron &; Steel Workers' Union A.I.R. 1955 Cal, 189, 1111-192 (Para. 10 and Para 18) (D.N. Sinha J). ' (a) Moti Dass V. S. P. Sahi, A.I.R. 195) S-C. 942, 951 para 17 (Question Whether properties here trust pr0perties.

(1)) Union of India v. Charm Mohd. A.I.R., 1961 S.C. 1526 1527, para (Whether L"\;bPJu\:LL:UL fureigu citizens.

(ct) Express Newspapers v. The Worker, A.I.R. 1963 S.C. 569, 574, para. 12.

(e) S.T.0.v. Shiv Rattan, A.I.R. 1966 S.C.142, 144(facts to be decided.related to taxability).

(f) State Of Orissa V- Binapani Dei. A.I.R. [967 S.C. 1269.

5. State of M.P. v. D.K. Jadau, A.I.R. 1968 S.C. 1186 1190, para7 Quoting Rex v. Shoreditch Assessment Committee (1910) 2K.B- 859, 873.

(c) When it becomes necessary to decide questions of facts in a writ petition, the High Court would normally take recourse to aﬂidavits, and it is a matter within its discretion whether to allow cross-examination or not of a person who has sworn to an afﬁdavit.' Usually, the High Court, in the exercise of its discretion, declines to do so?

Discretion of High Court 5.33. The quesetion was discussed by the Supreme Court in a case reported" in the year 1967. The Company Law Board (of the Central Government) issued an order on 19th May, l965. under sec- tion 237(b) of the Companies Act, 1955. appointing four persons as inspectors for investigating the affairs of the Barium Chemicals Ltd., and for ascertaining the irregularities and contraventions alleged to have been committed by the managing director and oﬂicials of the Company. This order of the Company Law Board was challenged by the Company, in a writ petition under article 226 before the Punjab High Court.

During the course of the hearing, the petitioner company applied to the High Court for summoning a respondent for his cross-examina- tion about certain disputed facts. The High Court did not pass any separate order on this application, but dismissed it in the course of its judgment on the main petition on the ground that it was not necessary to ask additional evidence and that the aﬂidavits ﬁled by parties were enough for the disposal of the petition.

Supreme Court's view on High Courts powers to cross-examine

534. The matter came up before the Supreme Court in appeal under article 136. The following observations of the Supreme Court regarding the determination of disputed questions of facts in writ petitions, may be referred to-

"In our opinion, in a proceeding under Article 226 of the Consti- tution, the normal rule is to decide disputed questions on the basis of aﬂidavits and that it is within the discretion of the High Court whether to allow a person who has given an aﬂi- davit before it to be cross-examined or not.

1 Btpium Ch"1I1l""ilS LH. Vs. Company Law Board. A.I.R. 1967 S.{). 295.

9 ((1) Dabur Ltd, v, Workmen A.I.R. 1968 S.C. 17, 19 Para. 4.

(b) Sri Triumala Venkateswara v. C.T.0. Rajah Mandi A.I.R. 1968 S.C. 784 786 para 5.

8 Barium Chemical Ltd. v. Company Law Board, A.I.R. 1967 SI}, 295.

"In exercise of its discretion the High Court has refused permis- sion to cross-examine them. In such a case it would not be appropriate for this court when hearing an appeal by special leave to interfere lightly with the exercise of that discretion."

"The Court has to ﬁnd the facts and if it finds that it can do so without cross-examination, it is not compelled to permit cross- examination. We have no reason to think that the High Court could not have ascertained the facts on the aﬂidavits them- selves.'' "In a petition under article 226, there is undoubtedly ample power in the High Court to order attendance of a deponent in court for being cross-examined. Where it is not possible for the court to arrive at a deﬁnite conclusion on account of there being affidavits on either side containing allegations and counter-allegations, it would not only be desirable but, in the interest of justice, the duty also of the court, to summon a deponent for cross-examination in order to arrive at the truth."

Oral evidence 5.35. Oral evidence is not thus ruled out. In fact, the rules of courts provide for oral evidence being taken. The Supreme Court has referred, with approval, to the practice of the Calcutta and the Bombay Hing Courts, on their Original Sides, of setting down petitions for hearing evidence in appropriate cases'-'.

Recent cases 5.36. The matter regarding "disputed questions of facts" in a writ petition came up before the Supreme Courts in an appeal,' recent- 1y. i The petitioner, Kamini Kumar Das Choudhary, was a Sub-Inspector of Police in Calcutta. He was ordered on 20th May, 1951, to carry out the search of a particular house. During the search, he left the house and went out for taking tea. A departmental enquiry was held against him, and he was dismissed from service by the Dy. Commis- sioner of police on 1st August, 1951.

1 See, for example, rule 63:', Bombay High Courts Rules (O.e.) ' K. Kauchuni Moopil Nayar V. State of Madras, (1959) supp. (2) S.C.R. 316,337 A.I.R. 1959 so 725, 734 para 13.

3 See 11150--

(a) 0.R.H. Readymoney Lzd_, v State of Bombay, A.I.R. 1958 Bom. 181, 19], para 21 (Expert evidence as to Wine);

(b) State of Maharashtra v. Bermet Coleman da 00., Ltd. A.I.R, 1964 Bom. 213, 216, 217, para. 8 to 10 (Oral evidence as to prime competions). (1973).

' K amini Kumar Das Okoudhary v. State of West Bengal (1971).

5.37. The petitioner filed a writ petition under Article 226 of the Constitution against his dimsissal from service. This petition was dis- missed on 11-9-1957 by a Judge of the Calcutta High Court, an appeal ﬁled by the petitioner was also dismissed by a Division Bench of the Calcutta High Court. The matter came up in appeal before the Supreme Court under Article 133(l)(c) of the Constitution'. A number of dis- puted questions of facts were involved in the matter. It was, for example, alleged by the petitioner that he was denied due opportunity to adduce evidence and to cross-examine witnesses in the departmental enquiry. It was also alleged that the Dy. Commissioner of Police, who had passed the dismissal order, became a complainant in the case and there was a bias on the part of the dismissing authority and the order of dismissal was vitiated by mala ﬁdes. Dealing with these disputed questions of facts, the Supreme Court observed that the questions whether there was bias, ill-will, mala ﬁdes or a due oppor- tunity to be heard or to produce evidence given in the course of departmental proceedings were so largely questions of facts that it was diﬂicult to decide them merely on conflicting assertions made by afﬁdavits given by the two sides.

Alternative remedy 5.38. The Supreme Court also observed that in accordance with the rule laid down by the court in Union of India v. T. R. Varma', be writ petition could have been dismissed on the ground that it was "-.O'£ the practice of courts to decide such disputed questions of fact in proceedings under Article 226 of the Constitution. Other proceed- ings are more appropriate for a just and proper decision of such question.

Summary of Supreme Court view Thus. the view of the Supreme Court in this matter is that dis- puted questions of fact should not ordinarily be tried in a writ peti- tion under article 226 of the Constitution, and such questions should be left for consideration by an ordinary civil court.

Discretion of the High Court _ 5.40. It, thus. appears that the question whether a disputed ques- tion of fact siioulu' be tried on a petition for writ is left to the dis- cretion of the High Court. In some cases, the High Court may con- sider it desirable to let the matter be decided by a regular suit in an ordinary civil court. If the High Court so desires, it may decided the question on aﬂidavits; the power to cross-examine the persons ' 43, S.C.J. N0. 11, page 632 (Supreme Court Journal (117. 1-6-1973).

" Union of India vs 'l'.R.. Va.rm'i AIR 1957 S. C, 882.

who have sworn the aﬂidavits, and, if necessary, the power to take evidence as in a suit, is not denied. Any such power may be resorted to at the discretion of the High Court, if the circumstances of the case render such a course just. What circumstances render cross- examination or taking of evidence desirable, cannot, it seems, be categorised into hard and fast rules.

Gist of replies 5.41. The opinion on question 6' is divided, and there are va- rious shades of view expressed. There are those who favour the suggested limitations, and those who oppose any amendment.

The ﬁrst constitutes equally strong group as the second. These two, taken together, exhaust a large number of replies. A tew replies favour aﬂidavits, while there is one suggestion for recording evidence through Commissioners.

Some Judges" of the Supreme Court are not in favour of making any changes regarding the limitations as to inquiry into disputstl facts under Article 226 of the Constitution.

5.42. Some of the important pointslmade in the replies are the following:

With respect to the jurisdiction of High Courts under Article 226, one High Court J udge" does not favour the view that dis- p ted questions of fact should not be gone into. For the trial of such issues of fact, the Judge suggests that the Dis- trict Court may be directed to record evidence so as to save the precious time of the High Court. The present practice of ﬁling aﬂidavits and counter-afﬁdavits may be continued.

In exceptional cases, the High Court may send it for recording evidence in the same manner as in suit.

Broad propositions 5.43. Fri the course of our oral discussions at a few places with the.J.udgc-s and the bar, we put the query whether the following pro-

positions substantially reﬂect the present practice, and we understand that they broadly reﬂect the present practice.

Where in a petition for a writ or order under article 226, a question of fact arises,--

(3) :';':::': t'__:: question of fact is _frl'_.*e1_ous and appears to have been raised only to oust the ]1lI'lSdlCt1OI1 of the High Court tries it;

(b) where the question of fact is genuine but cannot, by reason of any provision of law, be tried in a proceeding other than such petition. the High Court tries it;

1 Para 5-29 , supra 3 S.No. 50. 3 No. 17. 68

(c) where the question of fact is geniune, and can be more ap- propriately tried in a proceeding other than a petition under article 226, the High Court declines to try it, except where the question can be decided on admitted documents and can, in the opinion of the High Court, be satisfactorily disposed of in such a petition;

(d) if the High Court decides to try a question of fact in any such petition, it gives an opportunity to the parties to cross- examine the opposite parties and persons who have made aﬂidavits supporting their case with reference to the state» ments made in their aﬁidavits.

Rigid provisions not necessary 5.44. We have no doubt that High Courts ordinarily do act upon some such broad principles as have been stated above. Views ex- pressed to us in writing1 as well as during oral discussions--taking the majority opinion»do not regard any rigid provision in this regard to be necessary. and we have also, after careful consideration, come to the same conclusion.

Conclusion--no change needed 5.45. The matter appears to be one which can be left to the dis- cretion of the High Courts--a discretion which, as we have stated above," is generally exercised on the broad principles already indicat- ed.

It W<'!'.1ld, we think, be inappropriate to introduce any provisions on this point in the Constitution.

Recommendation 5.46. in this connection, we would like to recommend that the Minister ff Law and Justice may suggest to the Chief Justice of India to take such action as he may deem desirable and expedient to see that all the High Courts may appropriate rules in this matter and that such rules are, as far as possible, uniform. The object of such rules should be to lay down a deﬁnite procedure in dealing with dis- puted questions of fact in writ petitions ﬁled under article 226.

It may also be stated that, at present, there is divergence of opinion" on the question whether, by virtue of section 141 of the Code of Civil Procedure. 1908, the provisions of that Code are attracted to petitions for writs. The framing of self-contained rules on important procedural matters would be useful. with respect to petitions under article 226 of the Constitution.

1 Para, 5-41, supra.

3 Para 5-44, supra.

3 See 54th Report of the Law Commission (Code of Civil Piocedurel. Pﬂges 107- 108 para 1-0-2') to 1-9-32. -

CHAPTER 6 MATTERS RELATED TO TAXATION Importance of questions relating to taxation 6.1. The determination of questions relating to taxation laws is one of the most important types of judicial business. This function of the Courts has assumed greater importance with the increase in the content of the taxing laws. The problems raised by taxing statutes are of a complex and diﬂicult character. As the eminent economist Harris has pointed out, taxing statutes become complex, not because am; one really wants them to be so, but because there are certain pervasive reasons. In that connection, he mentions that one special problem after another arises in matters relating to tax, and the law tends to be complex. This complexity of the taxing laws renders it desir;t'::le that the problems of interpretation which arise in conse- quence should be solved without delay. By delay, onerous costs are incurred by parties, and, on occasions. by reason of uncertainty in the law. busm'-°s;s and personal activities are often held up because of such T lt is thus plain that the interest of the coanmunity as ' the State pretmptorily require that tax matters should be ~ ., .::f satisfactorily and expeditiously.

Question 7 6.2. It is in the light of these considerations that Question No. 7 has been formulated by us. The question reads thus:

'"<a.> Do you favour the creation of a National Tax Court for hearing references from the Income-tax Appellate Tribunal (or similar tribunals constituted under taxation laws of the Centre and the State), whose decisions will be ﬁnal, subject only to appeals as indicated below?

(b) If so. should appeals to the Supreme Court from the decisions of the Tax Court,--

(i) be allowed with special leave or.

(ii) be allowed with special leave but only if a substantial question of law of general importance is involved. or

(iii) be allowed subject to any other limitation?

1 C. Lowell Ha'rr7is,"'Atlaptation of the Tax System" (1971) 25 Public Finance 113"

1 41'.

69 70

(C) In the alternative, are you of the view that the decision of the present Income-tax Appellate Tribunals (or corresponding Tribunals under other Central and State laws relating to taxation) should be ﬁnal, subject to review by the High Court under article 226 of the Constitution or appeal to the Supreme Court under article 136 of the Constitution?

(d) If yes, what should be the status and terms and conditions of service of Judges of the above Court?

Three alternatives 6.3. and 6.4. It will be noticed that Question No. 7 elicits opinion on two alternxtvc courses, and the third alternative was evolved in the course of our inquiry. The ﬁrst alternative is that a National Tax Court should be established and against its decision, an appeal should lie to the Supreme Court under one or the other of the three conditions indicated under Q. 7(b). The other two alternatives are as follows. Either the decision of the Income-tax Appellate Tribunal should be revisable by the High Court under article 226 of the Constitution and an appeal against the decision of the High Court (under that article) should lie to the Supreme Court under article 136, or, instead of the present reference proceedings, an appeal against the judgement of the Tribunal should lie to the High Court on a substantial question of law, and against the decision of the High Court in such an apféeal. It ."urther appeal should he ' the Supreme Court if the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court.

Object of inquiry 6.5. In including the two alternatives in Question No. 7 our .main purpose was ﬁrst to solicit opinion on the question as to whe-

ther the present reference proceedings, which take considerable time and almost always lead to delay in the disposal of references in the High Court, should be continued or should be dropped.

Provisions in Income-tax Act 6~5A. We shall brieﬂy deal with provisions in the Income-tax Act. The provisions in regard to reference to the High Court are contained in sections 256 to 260 of that Act. Sections 256(1) provides that the assessee or the Commissioner may. within the prescribed period, move the Appellate Tribunal by an application made in that behalf in the prescribed form, for a reference to the High Court on any question of law arising out of such order. It further imposes upon the Appellate Tribunal an obligation to draw up a statement of the case and refer it to the High Court within the prescribed period.

I . .7 71 6.6. Sub-section (2) of s. 256 deals with cases where the Appel- late Tribunal refuses to state the case on the ground that no ques- tion of law arises, and it lays down that in such cases, the assessee or the Commissioner may, within the prescribed period, move the High Court for a direction that the Tribunal be called upon to state a case and to refer it. If the application made by the assessee or the Commissioner under this clause succeeds and the High Court requires the Tribunal to state the case, the Tribunal shall state the Case and refer it accordingly. That is the effect of the provisions of clause (2). With sub-section (3) of s. 256, we are not concerned.

67 Section 257 authorises the Appellate Tribunal to draw up a statement of the case and refer it, through its President, to the Supreme Court, if, on an application made to it under s. 256 it is "of the opinion that on account of conﬂict in the decisions of the High Courts in respect of any particular question of law, it is ex- pedient that such a reference should be n1ade."

6.8. Section 258 empowers the High Court or the Supreme Court to refer the case back to the Tribunal for the purpose of making such additions to the reference already made by it or such alternations in such a reference, if the High Court or the Supreme Court is satisﬁed that the statement in the case referred to it is not sufﬁcient to enable it to determine the question raised thereby. In other words, under this section, a further statement or a modiﬁcation of the statement already made can be requisitioned by the High Court or the Supreme Court.

6-9. Section 259 provides for the manner in which the High Court should hear Income-tax reference and dispose of the same. Secticrn 260 lays; down that a copy of the judgment delivered by the High Cemrt the Supreme Cc":-rt will be forwarded to the Tribunal in the manner indicated by the section and that 'on receipt of such a copy. the Tribunal shall pass such orders are necessary to dis- pose Hi the case conforming to such act Clause (2) of section 260 deals with the question of costs with which we are not concerned.

6.10. Sectioh 261 provides for an appeal to the Supreme Court against the judgment of the High Court delivered by it on a refer- ence made to it under section 256 provided the High Court certiﬁes the case to be a ﬁt one for appeal to the Supreme Court. Section 262(1) lays down the procedure for the hearing of the appeals be- lore the Supreme Court. Sub-section (2) and (3) of section 262 are not relevant for our purpose.

6.11. It may. incidentally, be pointed out that the order passed by the High Court calling upon the Tribunal to state a case for the decision of the High Court can be described as an "order in the nature of a mandamus".

Gist of views expressed on the question 6.12. In regard to the opinion received by us on this question, it may be stated broadly that the majority of the replies oppose the creation of the National Tax Court; some replies are inclined to support the idea that the decisions of the Tribunals should be ﬁnal subject to articles 226 and 136 of the Constitution. On the other hand, some replies indicate dissatisfaction with the proposal to leave it open to the party aggrieved by the decision of the Income-tax Appellate Tribunal to seek relief either under article 226 or under article 136 of the Constitution. According to these replies, an appeal should lie to the High Court in place of the present reference and thereafter, if a party is aggrieved by the appellate decision of the High Court, a further appeal should lie to the Supreme Court on a substantial and important question of law.

Unanimity as regards replacement of reference by appeal 6.13. In regard to the present provisions relating to the refer- ence proceedings, there appears to be almost complete unanimity for deleting them and for substitution of an appeal in their place; and this trend of opinion can be well appreciated, because it is com- mon experience that the procedure of reference, at present c:;=nte1np- lated by section 256. is dilatory and serves no signiﬁcant or itttportant purpose. We ought to add that if proceedings relating to reference are omitted from section 256, it is certain that the dccisior: of the Income-tax Appellate Tribunal would naturally be more elaborate and conform to the traditional requirements of an appellate judgment'. We are, therefore, satisﬁed that the present provisions about refer- ence should be deleted. We shall deal later with the question of the procedure to be substituted in their place.

National Tax Court 6.14. The concept of a National Tax Court may have merit of leading to uniformity of decisions in respect of direct tax laws throughout the country and this", no doubt, is a relevant c<>t1~i€:--ration. The other point in favour of this concept is that, if a National Tax Court is to be established, its Members would, inevitably, be chosen , for their expertise in tax laws; and judges pre-eminently qualiﬁed in this matter who might sit on the National Tax Court would be expected to dispose of tax appeals expeditiously.

Practicability considered 6.15. On the other hand, there are some considerations which are very much against the practicability and feasibility of this con- cept. The ﬁrst consideration which detracts from the merits of the [E £1 See]Pai-agrph 6-36 and 6-37 infra.

. -,,_.

v 73 eoncept is that even if a National Tax Court is established, unless smitable amendments are made in the Constitution, it would be im- possible to exclude the applicability of article 226 and article 136 of the Constitution to the decisions of such a Court, and we are reluct- ant to make such a recommendation.

Likelihood of large number of appeals 6.16. Besides, if the National Tax Court is intended to deal with tax appeals arising from the decisions of the Income-tax Appel- late Tribunals all over the country, it is easy to imagine that the Court will be ﬂooded with a large number of appeals; and in that case, the problem of arrears in tax matters will merely be shifted from the High Courts to the National Tax Court. That cannot be said to be a solution to the problem of arrears.

Diﬂiculty if located at one place 6.17. The concept of National Tax Court suffers from another serious inﬁrmity, and that is, that such a Court cannot conveniently function in one place like the-Supreme Court in New Delhi. For the convenience of the parties, it would be essential that the Court will have to sit in Division Benches at convenient places all over the country, and that would weaken the argument that the Court sitting in one place might lead to uniformity of decisions. Therefore, in our opinion, it would not be reasonable or feasible to support the idea of a National Tax Court.

Not recommended 6.18. Having thus, carefully considered all the pros and cons in the matter, we have no hesitation in coming to the conclusion that the idea of National Tax Court cannot be recommended.

Article 226 6.19. Similarly. we do not think it would be advisable to adopt the alternative of leaving it open to the party aggrieved by the decision of the Income-tax Appellate Tribunal to move the High Court under article 226 because the jurisdiction of the High Court under article 226, no doubt, more limited than its appellate jurisdic- tion. While exercising its jurisdiction under article 226, the High Court would be inclined to interfere with the impugned order of the Income-tax Appellate Tribunal only if it is shown that it discloses an error apparent on the face of the record. It is well-known that this requirement limits the jurisdiction of the Court ahd may not always enable the citizen aggrieved by the order of the Income-tax Appellate Tribunal to raise even a substantial question of law before the High Court against the said order. .

Observations of Lord Denning 6.20.

In this connection, we would like to refer to the observa-

tions made by Denning L.J., (as he then was) in Rex v. Northumber- land Compensation Appeal Tribunal.' Said Lord Denning:--

"There was no way other than this by which the mistake could be rectified. The Attorney-General pointed out the undesir- ability of the court interfering with the decisions of tribunals set up by Parliament. I agree with him that the Divisional Court cannot extend its powers. It can only act according to the well-recognised rules. It is equally important that ' the court should not hesitate to act to prevent an injustice 1 Rex.

l27 (C.A.).

being done if the remedy sought is within the scope of its powers. Much time has been expended in recent years in considering whether in particular circumstances certiorari, or prohibition. will lie. A great deal of it could be saved. The regulations under the National Health Service Act, 1946, are of great complexity. The interpretation of them is left to the tribunal; there is no provision for an appeal to the courts. That position arises frequently now-a-days.

I most earnestly wish that in such cases, where diﬂicult questions of law, and of interpretation, must arise, there s./zoulcl be given sonze right of appeal. Perhaps the most ctvnvenient form is that adopted in section 37 of the National Insurance (Industrial Injuries) Act. 1946, under which any oizzstion of law arising in connection with the determination of certain questions may, if the Ministry thinks ﬁt, be referred to the decision of the High Court, and any person aggrieved in the decision of the Minister on any question of law not so referred may appeal from that decision to the High Court. And there is provision in sub--section (5) that the decision of the High Court shall be ﬁna1,--a provision which may be thought desirable in such cases. After all, it is the function of the courts to determine questions of law. Tribunals are some- time given an unduly difficult task. There must be a feeling of dissatisfaction if it is recognised that a decision of a tri- bunal is wrong in law and yet there is no power to correct it~in other words. if there is no right to obtain the opinion of the court.

I am satisﬁed that the course I have suggested would result in a saving of time, and of expense, and would be for the public good."

v.Northumbe'rland Cojmpemation Appeal Tribmwl (1952 )1 All ER. 122, 75 6.2]. While we agree with the view taken by Denning, L.J.. that me remedy by way of an appeal would be more suitable in proceedings 'before tribunals,' we may, incidentally, point out that the National Insurance Tribunals cannot be compared to the lncome--tax Appellate Tribunals in our country. The reason is that Income-tax Appellate Tribu: l~. in ln.'.ia are almost invariably presided over by a Senior Judge with adequate judicial experience.

A rticle 136 6.22. We are also reluctant to .;ccept the alternative suggestion tli;;= an aggrie\ed party should be given the option of either invoking :::"cle 226 or article 136 the Constitution. In our view, if such an 0','ll-'ll is provided for in a relevant provision of the Income-tax, that will not affect the right of the party. who is aggrieved by the decision vi the High Court under article 226, to move the Supreme Court under article I36 l'..".li'SS article l36 is suitably modiﬁed in that behalf. and we are not prepared to suggest any such amendment in article 136.

Substitution of appeal recommended in section 256 6.33. Therefore, having carefully examined this problem, we are satisfied that the only reasonable solution, which may tend to make the disposal ot tax matters more satisfactory and expeditious, would be to dslete the present provision relating to reference {section 256. Income- tax Act) and to provide for an appeal against the decision of the In- C:;'.m€-lax Appellate Tribunal on a substantial question of law instead of an a simple question of law, as at present. and also to provide that t'.;;.':lllS{ the appellate decision of the High Court, it should be open to the aggrieved party to move the Supreme Court with a certiﬁcate of the High Court that the case involves a substantial question of law oi' general importance which needs to be decided by the Supreme Court.

Section 257. Income-tax Act 6.24. Section 257 of the Income-tax Act, to which we have alreaclv re!-"erred'*'. provides for a direct reference from the Tribunal to the Supreme Court on an application made in that behalf. if the Tribunal is of opinion that on account of a conflict in the decisions of High Courts in respect of any particular question of law, it is expe- dient that such a reference should be allowed direct to the Supreme Court. This section was. for the first time. introduced when the Income- tax Act was revised in l96l. and its genesis lies in a recommendation 1' Péllx". (L20. .2711»,-u_ 9' Pfl.Y'«'1(5-H:'LllIl ti. T_ .<7r1i,-q_ 2'4 .ptl)ll'l l-Mwtfl.-l&C.\~--(i oi' the Tyagi Committee'. The principal object of the reconmiendation was to secure uniformity in interpretation. It was represented to the Tyagi 'CCii1ll11liLCC that, apart from the delay in disposal, a great deal oi hardship was caused to the tax-payers on account of the lack of uni:"orinity in the interpretation put on the various provisions of the taxing statutes by the assessing and the appeiiate ttuthorities. The Committee made a 1'ect,miiiei1datio;1 for inserting such a section. It can be ill'/Ol\'C(i after the i'ribunal has pronounced its order.

6.25. In terms, this provision (S. 257) proceeds on the assurc.p~ tion of an application made either by the assessee or the department under section 256, and consequently, section 258 deals with the power of the High Court and the Supreme Court in regard to the reference iuzide to them. In other words, if a reference is made to the Supreme Court by the Appellate Tribunal under section 257, it would be Com- petent to the Supreme Court to refer the case back to the Appellate Tribunal. if it is satisﬁed that the statement in the case in question is not saiﬁicient to enable it to determinethe question raised. It also follows that. as a consequence of section 260. the judgment delivered by the Supreme Court would be in the nature of an advisory opinion. it would no doubt be binding on the Tribunal, but it does not amount to a final decision of the case. The Appellate Tribunal has to pro» nounce its judgment on the point referred to the Supreme Court in the light of the opinion which the Supreme Court may express on that point. Thus. the reference directly made to the Supreme Court is, speaking legally. of the same character as the reference made by the- Tribunal to the High Court under s. 256.

Continuance of s. 257 discussed

26. I-§_:!\'ing decided to recommend3 that the reference procedure comemplated by s. 256 should be replaced by an appeal, the question which we have to consider is whether the reference procedure contem- plated by s, 257 should continue.

Vexed problem 6.27. We have examined this question elaborately and we are free to confess that this appears to us to present a vexed problem. There is no doubt that a direct reference to the Supreme Court contemplated by s. 257 would be in the interests both of the State and the assessee inasmuch as it avoids delay in decision of the point on which there is a divergence of opinion in the different High Courts in the

1. Direct '['aXr-.< .\tl!!1l'llSiY'ftfi0n it-V (Mmmirtee. Report {l€l:'>-_°..79). ]~a,qe 93 p31'L1'."l'«"tpl] 4-45,

2. Para 6- 23, .w1>m_ 77 country. Section 257 enables the Appellate Tribunal to circumvent the High Court of the State in which it is functioning and send the case to the Supreme Court direct for its verdict and thereby avoid delay in the final decision of the case. Delay is avoided for the reason that ultimately the Tribunal formulates its conclusion on the question of law, which had been referred to the Supreme Court, in the light of the verdict of the Supreme Court; and that, in a sense, becomes ﬁnal.

Simultaneous reference not ruled out $.28. i'\'etei'tl1eless', in spite of the reference which may be made under s. 257', ii' the assessee wants a reference to be made to the High Court of the State on certain other points, and the Tribunal is satisﬁed that the reference should be made, the reference has to be made within the time and in the manner prescribed by section 256. The other provisions of section 256 as to the procedure open to the party, whose request for a reference has been rejected by the Tribunal, would also appéy in relation to points other than the one which is the subject matter of the reference under section 257. Thus, in a case where a refetence is directly made to the Supreme Court, it is not unlikely that, in some cases, reference may be pending in the same case both in the High Court and in the Supreme Court, though, in the reference to the High Court. the point referred to the Supreme Court directly would not be involved.

No reported cases 6.29. Section 257 was inserted when the Act was revised' in 1961: but unfortunately, we have not been able to collect statistics as to the number of references directly made by the Appellate Tribunal to the Supreme Court under this section, not have we been able to ﬁnd any pronouncements by the Supreme Court on such references (as none have been reported). Therefore, we have to decide the question about the propriety and reasonableness of the continuance of section 267 hereafter on purely juristic and the oeretical grounds.

6.30. In our opinion, the view that recourse to section 257 might avoid delay. which prima facie appears to be attractive, may not prove to be quite sound in actual practice. Even if a reference is made to the Supreme Court under section 257, it may involve delay if the Supreme Court exercises its power under section 258 and calls for a further statement of facts. That consideration cannot be treated as irrelevant.

1. Para 6.24 supra.

6.31. Besides, even if a reference is made to the Supreme Court under section 257, the reference which is pending in the High Court' will have to run its own course, and after the verdict of the Supreme Court is pronounced on the reference made to it directly by the Tri- bunal, the Tribunal will have to modify, if necessary, its conclusion on the question referred to the Supreme Court,' and this modiﬁed de- cision of the Appellate Tribunal may have to be brought to the notice of the High Court.

Procedure not serving any signiﬁcant purpose 6.3lA. There is another consideration which has weighed with us in dealing with this question, namely, that the procedure involved in the reference proceedings does not serve any signiﬁcant purpose; we have already adverted* to this consideration while dealing with section 256. On the recommendation that we have made, as a result of which section 256 will be replaced by an appropriate section pro- viding for an appeal to the High Court on a substantial question of law, a direct reference to the Supreme Court under section 257 seems to us to be juristically unjustiﬁed. If there is a divergence of opinion amongst the High Courts on any issue of law, it is legitimate that even that question should form part of the grounds which the party alfected by that decision will take in its appeal before the High Court, and the High Court may consider the divergence of opinion, and, conceivably, in some cases, may change its view. That is the normal procedure of appeals and second appeals in judicial proceedings; and we see no justiﬁcation for departing from this procedure, particularly when we are, in substance, assimilating the proceedings before the Tribunal to those before the first appellate Court.

Substitution of appeal in section 257 considered inappropriate 6.32. During the course of our discussion, we considered the ques- tion whether the substitution of an appeal to the Supreme Court (in place of the present procedure of reference) in section 257 would be an appropriate course, and we examined the point whether providing for such an appeal would be juristically sound and practically useful and convenient to the party concerned. We came to the conclusion that, if an appeal is provided instead of the present reference proceed- ings under s. 257. it would be inappropriate to limit the appeal to only the point on which there was a divergence of opinion amongst the High Courts. The concept of an appeal and its scope will naturally be determined by the conditions on which an appeal is provided for 1, Para G-28 s7tprr1.

2. Pz1I'zlG~23-S7l]lT(7.

under the statute; and, in the present case, we are recommending' the amendment of section 261 of the Act and suggesting that an appeal to the Supreme Court should lie on a certiﬁcateby the High Court that the case involves a substantial question of law of general impor- tance which, in the opinion of the High Court, needs to be decided by the Supreme Court.

6.33. If that recommendation (concerning section 261) is accepted, then it would be juristically unsound to provide for an exception in regard to cases falling under section 257 and state that, in cases where an appeal lies to the Supreme Court directly, all questions which arise in appeal should fall to be considered by the Supreme Court even if they do not satisfy the tests recommended by us.

This latter provision would be inconsistent with section 261, if that section is amended in accordance with our recommendation.

Recommendation to delete section 257

634. Having given our anxious and careful consideration to the problem. we are satisﬁed that, consistently with the philosophy which we have accepted against the usefulness of the reference proceedings, the provision about the direct reference to the-Supreme Court con' templated by section 257 should also be deleted.

Resulting scheme 6.35. In the result, the scheme of the proceedings subsequent to the Judgment of the Tribunal (sections 256 et seq of the Income-tax Act) would be that. after the Appellate Tribunal has pronounced its judgment, an appeal will lie to the High Court on a substantial ques- tion of law, and against the appellate judgement of the High Court, an appeal will lie to the Supreme Court? on a certiﬁcate of the High Court that it involves a substantial question of law of general importance which. in the opinion of the High Court, needs to be decided by the Supreme Court.

In consequence, section 256 will need to be revised. Section 257 will need to be deleted.Sections 258 to 262 may also require to be deleted or amended.

We need mention have 2.a all the consequential amendment". But we deal below with one important point'.

1. Para 6-35 and t3~.'}9, infra.

2. See para 6- 39. infra.

'.'-a. See Appemlix.

3. Similar cltaiigos will be needed in other Laws dealing with direct taxes contain-

ing similar provisions.

'. Para 6-36, infra.

Section 255(7) (New) Judgments of Tribunals 6.36. At present, there is no provision in the Income-tax Act requiring the Appellate Tribunal to pronounce a judgment- Under section 256(1) of the Act, where there is a reference to the High Court, the Tribunal is required to draw up a statement of case and refer it to the High Court. It has been emphasised more than once' that the state- ment of case to be prepared by the Tribunal should contain an intelli- gible summary of the facts found by the Tribunal, the points raised by the parties, the authorities or statutory provisions relied upon for view taken by the Tribunal, and its own conclusions and ﬁndings of fact. In view of the recommendation to substitute an appeal in place of reference, it now becomes imperative that the Tribunal should give a formal judgment in every case'. Under the 'Civil Procedure Code,', a Court is required to give, in its judgment, a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. This and other important provisions of that Code applicable to contents of judgments should now be extended to the Tribunal. We recommend the insertion of sub-section (7) in section 255 of the Income-tax Act for that purpose.' Reasons for recommendation 6.37. Since we are recommending radical changes in respect of proceedings subsequent to decision of the Income-tax Appellate Tri-V bunal, it is necessary that we should explain the reasons which have weighed with us in making these recommendations. We have already dealt with the point that the provisions about reference serve no useful purpose, and, in fact, they invariably tend to introduce an element of delay in the ﬁnal disposal of Income-tax cases. That is why, consistently with the opinion almost unanimously expressed in our present inquiry, we are recommending that the procedure as to reference should be dropped. , Proceedings at the stage of Tribunal---truly judicial proceedings 6.38. In regard to the appeals to the High Court,--which we are recommending,--we are providing for an appeal to the High Court only if it involves a substantial question of law. and not merely a ques- tion of law as permitted under the present section 256. In our view.

1. L.B..-l. A Harlin V. Income Tax f'mmni.<-.ez'o7m', A.I.R. 1968 SI'. 789, 794, Para ll. '3. See also para 6- 13. snpr/I.

3. Order 20, Code of Civil Procedure, 1909.

'. See Appendix.

[.0 81 though it is true that the assessment proceedings before the Appellate authority can be legitimately regarded as proceedings before Depart- mental persons, and, in that sense, not judicial proceedings as such, there can be no doubt that when the case reaches the Income-tax Appellate Tribunal. the proceedings before the Tribunal are judicial.' A Bench of the Tribunal ordinarily consists of two members," and

-one of them is invariably a senior person with adequate judicial ex- perience. From that point of view, the proceedings before the Appel- late Tribunal can well be regarded as the ﬁrst appeal either by the assessee or the Commissioner. We are prepared to describe these pro- ceedings as the first appeal, though, ordinarily, the question has been considered by two authorities, namely, the Income-tax Oﬂicer and the Appellate Authority. If that be so, the apepal to the High Court can well be considered to be in the nature of a second appeal and we think, it would not be unfair or unreasonable to suggest that such a second appeal to the High Court should lie on a substantial ques- tion of law. We have made a similar recommendation in regard to the second appeal under section 100 of the Code of Civil Procedure."

6.39. Then, as to the appeal to the Supreme Court, we propose to adopt the same philosophy of jurisprudence on which article l33(l)(c) has been already amended by Parliament in accordance with our recommendations; and opting the same philosophy, we are recommending a similar amendment in article 134(l)(c) of the Consti- tution. This article deals with criminal appeals to the Supreme C ourt' and the test, we are recommending, is that, except for the cases covered by article 134(1)(a) and (b), an appeal from the appellate criminal decision of the High Court certiﬁes that it raises a substantial question of law of general importance which, in its opinion, needs to be considered by the Supreme Court. We see no reason, why, if the High Court had considered the appeal in Income-tax matters and has decided even important questions of law, an appeal should lie against its decision to the Supreme Court if the point of law, decided by the High Court, is not a point of ﬁrst impression or is not one on which there is a divergence of opinion amongst diﬂerent High Courts in country.

6.40. That. in brief, explains why we have recommended a somewhat radical change in the scope of the appeal to the High Court as well as the appeal to the Supreme Court.

1. cf. set-tioii 2:'i5(t3), Income-tax Art, 196]. '-'_ Seetioii 255(2), liir~,i.iue-tax Act, 19'3l.

1'. 54'tli Report.

4. Cliapter 3, swprn.

Special leave when can be obtained 6.41. Incidentally, we may be permitted to point out that, in. view of the speciﬁc provision in the Income-tax Act, providing for an appeal to the Supreme Court subject to the conditions speciﬁed by section 261, it would, ordinarily, not be open to the party aggrieved} by the appellate decision of the High Court in Income-tax matters to circumvent the provision of s. 261 and move the Supreme Court for special leave under article 136. Such a course may be open to the aggrieved party if he satisﬁes the Supreme Court that though his appeal does not satisfy the test prescribed by s. 261 of the Income-tax. Act, the judgment of the High Court has led to. a grave miscarriage of justice.

CHAPTER 7 DISPUTE CONCERNING INDUSTRIAL RELATION Question 8 ' l. We now proceed to deal with question 8 formulated in our Questionnaire. This Question reads thus:

448

:4) Do you favour the creation of a National Appellate Court for industrial disputes whose decision will be ﬁnal, subject to appeal as indicated below?

ab) In the alternative, do you favour the creation of a Com-

mission for Industrial Relations as recommended by the National Labour' Commission?

-'2) Or, would you recommend the revival of Labour Appellate Tribunals, as they existed previously?

d) If you are in favour of any of these alternatives, should appeals to the Supreme Court from the decisions of the pro- posed National Appellate Court or Labour Appellate Tri- bunal or National Commission on Industrial Relations-

(i) be allowed with special leave, or

(ii) be allowed with special leave but only if a substantial question of law of general importance is involved, or

(iii) be allowed subject to any other limitation, or

(iv) not be allowed at all?

in') What should be the status and terms and conditions of service of Judges appointed to the above Court or Commis~ sion"?

Voume of industrial litigation and relevant statistics 7.2. The inquiry contemplated by this Question was intended to elicit opinion from interested parties on the different aspects of the problem raised in the question and decide which method of dealing with industrial disputes would lead to a satisfactory and expeditious disposal and reduce the volume of industrial litigation on the dockets of the High Courts and the Supreme Court. The volume of litigation relating to industrial relations ending before the Supreme Court can 3-:

be illustrated by the ﬁgures which have been supplied' to us for the years 1969, 1970 and 1971:

1969 l970 1971 ((1) X1l]]1lJ('I' of ztppcals at the tmctiiiig of the year . . . . . . . . 290 311 430 (/1) Nu]11l'('l' of :tp}>':'dl> ll't.~ill1ll('(l (llll'lt.,5 11.0 year .. .. .. .. 628 175 250 (C) X1IZ]1l)€1' of n]>pt~:1l.< 'fll>1)0>f'll oi" tlni-ii.:_-' the year-

(i) allowed . . . . . . . . .330 6 2'-'

(ii) disinissetl . . . . . . -3:3 14 87

(iii) C0]ll}11'f?T1]l5['tl .. .. .. 19 36 16 Totztl . . 607 56 125 (cl) Number ofz11>pcal~ l".li(li!lL' .it Ill?' end of the year _ . . .';ll «lfitl 591 We ought to add that these ." res include appeals under Article 132 and Article B3 of the Cons. .-.1tion. They also show that disposal of these matters is not able to keep pace with institution: and, as is ell--known, expeditious and satisfactory disposal of industrial matter is very important to the industrial life of our country. That is one consideration which weighed in our mind when we formulated the Questionnaire. We thought time had come when all interested parties should consider whether any satisfactory alternative method could be devised by which the number of industrial matters going to the High Courts under Art. 226 and to the Supreme Court under Articles l3?.

and 136 could be :tpprec.':,ibly reduced.

Diﬁerence of opinion revealed in the replies 7.3- In regard to Question 8, we have received several replies from the members of the Bar and the Judiciary. These replies show a sharp dliT€l't.'i]C€' of opinion. Some replies seem to favour the creation of a National Court of Industrial Disputes, while others desire that the Industrial Relations Commission, as recommended by the National Labour Commission, should be established. while some others would like the revival of the Labour Appellate Tribunal. The replies received from the different Govemment of the States" as well as from the Yqnion Government" show a divergence of opinion.

1. Statement NH. 5'. G,

2. See Appomlix.

3. S. No. 25. (Pteply of Additional Secretary, Ministry of Labour).

We may state that the reply from the Ministry of Labour,' indi- cates that a comprehensive machinery including the creation of Indus- trial Relations Commission, as recommended by the National Com- mission on Labour, is favoured.

Paucity of replies from organisations of employers and employees 7.4. Unfortunately, however, we have received only just a few replies from employer-organisations, and none at all from any of the national and State trade unions to which our Questionnaire had been sent. Since we did not receive any response from the employers and the employees, it was not possible for us to organise a meeting of the representatives of the employers and the employees and, without a discussion with them, it would, we think, be unreasonable to make any recommendation in the matter covered by Question 8.

Relevant considerations 7.5. It is possible that the failure of the employers and the em- ployees to respond to our Questionnaire may be due to the fact that 'hey know that the Ministry of Labour in the Union Government' is thinking of introducing a comprehensive machinery, including the crezition of Industrial Relations Commission, as recommended by the National Commission on labour, on the lines agreed to by the tri-- partite conference. Under these circumstances, we do not propose to discuss this Question at length; but would content ourselves merely with starting broadly some relevant considerations.

Importance of productivity 7.6. It may sound platitudinous, but nevertheless it is profoundly true, that, in modern times. no nation can make progress in achieving its objective of establishing social and economic justice, unless it is able to persuade both the employers and the employees to help the process of productivity-in the country; and productivity in industrial matters cannot be accelerated without industrial harmony. That is why the main objective of industrial jurisprudence is to help the growth of industrial harmony between the employers and the em- ployees. In considering one or the other 'of the alternatives indicated in Question 8, this main objective must be kept in mind Trade union movement in India compared with U.S.A. and UK.

7.7. It may, incidentally, be pointed out at this stage that unfor- tunately, trade union movement in this country did not have to undergo the trials and struggle which were witnessed in the United 1'. (Reply of Atlrlitional Secretary, Ministry (ifdiah0111'.) M

3. F'. f. para. 7-3, .<upra..

States of America and in the United Kingdom. In both the countries, before unionism attained the status of respectability, trade unionists had to undergo severe trial. In the United States, the struggle for recognition that was carried on by the trade union movement often- led to violent ﬁghts between employers and the employees. The 'yellow-dog' contracts, which were used as weapon by the employers, came to an end only in 1932 under the Norris La Guardia Act and the Naitional Labour Relations Act, 1935 makes reasonable provi- sions on the basis of the legitimacy of the Trade Union Act.

In the United Kingdom, the Common Lzivvgdoctrine of conspiracy held away, and even if two or more workmen combined to bargain' for better terms of employment, they were hauled up on the charge of conspiracy, and sometimes sentenced to undergo what would now strike one as a savage sentence. It was in 1906 that the Trade Dis putes Act took the ﬁrst stern step recognising the right to form Trade Unions.' Thus, both in the U.S.A. and in the U.K., trade unionism had gone through the batism of ﬁre before receiving recognition and attaining the status of respectability-

History in India 7.8. On the other hand, in India the story of the growth of trade union movement is not so deserved. It is true that, in 1918 for ins- tance," the Common Law doctrine was invoked by the Madras High Court in dealing with the case of the Madras Labour Union led by B.P. Wadia which had declared a strike. But, with the pass- ing of the Trade Unions Act in 1926, the Employees' right to form- trade unions was, in substance, recognised. Several other Acts were passed later, which conferred legitimacy on the trade union movement and its activities.

Rule 81A, Defence of India Rules 7.9. In the development of industrial law in this country. Rule 81A of the Defence of India Rules," has played an important role. Originally, this Rule was passed during the Second World War, with a view to providing speedy remedy for the settlement of industrial dis- putes by referring them compulsorily to conciliation or adjudi_ca_tion by making awards legally binding on the parties and by prohibiting

1. Elegg Fox and Thompson, History of British Trade Unionism (1964) VOL 1 Page- 3l3-325. '

3. (a). (a) Rustamji, law of Industrial Disputes in India (1964), p. 145. (hi K.N. Snbramania, Labour Management Relations in India 1967, pages 37, 41', (0) National Commission on Labour Report (1969) page 55, para 6.44 and 6.45. The Defence of India Rules, 1939.

strikes or lockouts during the pendency of conciliation or adjudica- tion proceedings and for two months thereafter. This Rule also put a blanket ban on disputes which were not genuine industrial disputes.

Later Ordinance and Act of 1947 7.10. After the termination of the Second World War, Rule 81A of the Defence of India Rules, 1939 was about to lapse on the 1st October, 1946, but it was kept alive by an Ordinance issued in exer- cise of the Govemment's Emergency Powers. This was followed by the Industrial Disputes Act,' 1947. This is an Act which contains' more than 60 sections, and none of its sections lays down any principles of industrial law as such. Section 10 of the Act authorises the appro- priate Government to make a reference of industrial disputes to Boards, Courts or Tribunals wherever the said Government is of opinion that any industrial dispute exists or is apprehended. In exer- cise of this power, several disputes were referred by different Govern- ments to Boards, Courts or Tribunals, and it is the awards or decisions of these bodies that laid the foundation of industrial law in our country-

Labour Appellate Tribunal 7.11. Later, the Industrial Disputes (Appellate Tribunal) Act, 1950 brought into existence the Labour Appellate Tribunal, and appeals against the awards of Industrial Tribunals all over the country were provided for. subject to the conditions mentioned in the relevant pro- visions of that Act.

7.12. The Labour Appellate Tribunal sat in defferent branches at different places, and it must be said to the credit of the Tribunal that its decisions evolved principles of industrial law which later formed part of the industrial jurisprudence of tht country.

Abolition of the Labour Appellate Tribunal 7.13. However, complaints were heard that the Industrial Disputes (Appellate Tribunal) Act, 1950 did not serve its purpose, because pro- ceedings before the Labour Appellate Tribunal took unduly long time, and, industrial disputes, which are always sensitive in character, brook no delay in their disposal. That is why, in 1956, the Labour Appellate ' Tribunal was abolished.

1. Th5sTt\tl_\1.~t1'i:\l T)i.<',Wl«'-.< .\t'':'. 1917 (1-1 of 194?.

3 'l"1:; ~_~ 1v» < \,';'>:'1l <"'.3Tl-)I1s'l!1\".']'i,E',fI by an1en«lmr>nt<.

_ 7.14. The Statement of Objects and Reasons' annexed to the Bill, which _,r'r'op<>sc(l the abolition of the Labour Appellate Tribunal, stated as follows:--

"There is a large volume of criticism that appeals ﬁled before the Appellate Tribunal take a long time for disposal and involve a great deal of expenditure which the workers cannot afford. It is proposed to repeal the Industrial Dis- putes (Appellate Tribunal) Act, 1950, and at the same time, to substitute the present system of tribunals by tribu- nals manned by personnel of appropriate qualiﬁcations. References to the National Tribunals will be made by the Central Government, and they will cover disputes which involve questions of national importance or which are of such a nature that establishments situated "in more than one State are likely to be interested in, or affected by, the (li:~'C'l.l?€S. ' Supreme Court 7.15. On the commencement of the Constitution, the Supreme Court had begun to function, and its decisions on a number of impor- tant questions had already laid the foundation of a sound industrial jurisprudence. When an appeal was brought before it, against an aw..:»._ pzixseti under the Industrial Dispute Act in B:Fa."::t B-wk v. Bharzzz Ban/t Employees Union} a question was raised as to whether an award in an industrial matter is subject to the appellate jurisdic- tion of the Supreme Court under article 136 of the Constitution. By

8. majority judgment 3:2. the Supreme Court held that the awards made by the Industrial Tribunals are subject to appeal to the Supreme Court under article 136 of the Constitution. In one sense, this judg- ment constitutes a landmark in the history of India's quest for indus- trial harmony, based on sound principles of industrial jurisprudence. It is well known that, ever since the Supreme Court pronounced its judgement in the I)'/mrat Bank's case. the Court has dealt with princi- ples of industrial law in several decisions, and these decisions, along with the decisions of the Labour Appellate Tribunal. constitute. as al- ready pointed out, the essence of industrial jurisprudence in India.

1. Stateniont of ()l1j<'ct:~ mt»? lit-tlsvvls. (inzette of Iiidiu, 1955. F.\'ll" , Tait ll, t&'f'l'. 2, Page 433,I'€ei;ltil1Q't-> t: r: tn=lt'~:t1'iai DlFl)lliCb t\'.r'~_n10ml1nent and Iliwollallt-01.5 Pm. visions) Bill, 1955.

2. The Bill was discussed in the Lok Sahha on 9th and 23rd December, 1949, 28th January, 1950, 10th Feb. 1950 and 8th and Iltb April, 1950.

3. Bfzarat Bank v. T/ufr Employees Um'zm. (1950) S.C'.R. 459; A.I.R. 1950 S.C. I88.

Federal Court

7.l6. Eiut, before the Supreme Court came on the scene, one special icature oi i;'c'us:rial law was considered by the Federal Court in ' '-. svern ].iit'.-"iii Aiitonzobile Association V. Imlustrial Tribunal, Bom-

1 ._ . In that cage, the dispute brought by the en1plo_\'ers beiore the Federal Court xvas in relation to the powers of industrial tribunal to =='?'==.-c. tr: »"..,~'.tiiCll}3l1l oi' an employee where services had been termi-

nated by the employer. Basing the argument on principles of Com- in-on Lew, relating to master and servant, the employees urged that the Industrial Tribunal had no jurisdiction to direct reinstatement, since the termination of the employment was in accordance with the terms of contract. "Adjudication", said the Federal Court in rejecting this argument does not. in our opinion. mean adjudication according to the strict law or" lll'lSi€l' and servant. "The award of the tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the tribunal is not fettered in any way be these limitations." it is on this basis that the whole ti!' illﬁlllaiiiltll _';irisprucl3tice has been stilxeqtzeiitly founded by the de- cisions of the Supretn.' Court.

lmpnrtance of collective bargaining ring all these jvears. liov-/ever. both the trade unionists and _ s have expressed the feeling that the co-.irse so far followed idjudicatory methods in dealing with industrial matters has in- A-r '_'tl_'\'. though unwittingly, stalled the progress of Collective bargain- ing; and it is an accepted principle. on which there is no difference of opinion. that the best way to solve industrial disputes is to persuade the parties to come to an agreement by mllective bargaining. If ad- jniliczttion takes the place of collective bargaining, legalism pervades the proceedings and the spirit of trade-unionism and its independent philosophy do not ,thrive. It is in the light of this criticism that we formulated". Question 8 with a view to considering which of the alterna- tives would least hinder the growth of collective bargaining- It was also our intention to ﬁnd out which of the alternatives would reduce the burden on the dockets of the High Courts and the Supreme Court of miscellaneous industrial disputes.

Three alternatives

7.l8.\Thrce alternatives were placed for soliciting opinion. The concept of National Appellate Court for Industrial Disputes has, no doubt, received support from some lawyers and Judges and, as we have

1. Western. India Automobile Associaiioti r. I1td'tIsit'i'rr7 Ti/1'bii7tal', Be-mbciy, (1949) S.C.R. 321.

'. Para S-1, supra.

already stated,' we have not received any opinion from the trade- unionists and very few from the employers. The opinions received from Governments are divergent. However, in regard to the National Appel- late Court for Industrial Disputes, we would like to make two inci- dental observations. If one National Appellate Court for industrial disputes were established, it would, in substztnce, amount to the re- vival oi' the Labour Appellate Tribunal. We do not think it would be reasonably possible for the National Appellate Court to sit in one place and deal with all the disputes arising in the term of appeals against the decisions of Boards. Courts or Industrial Tribunals all over the country.

First alter~native----National Appellate Court--difﬁculty in creation of

7.l9. Besides. unless suitable constitutional changes are made and the National Appellate Court is given the status of the Supreme Court jurisdiction of the High Courts under Article 226 and of the Supreme Court under Article l36 cannot be excluded. In other words. against the decisions of the National Appellate Court. writ petitions will lie to the High Courts under Article 226 and applications for special leave to the Supreme Court would be competent under Article B6; and the problem of delay in the decision of the National Appellate Court may arise, and, in the process. the burden on the dockets of the High Courts and the Supreme Court may not be appreciably reduced. That. however. should be treated as an incidental observa- tion made by us.

Second alternative----Commission for Industrial Relations 7.20. The idea of creating a Commission for Industrial Relations has been considered exhaustively by the National Commission on Labour in its Report." The National Labour Commission has also suggested that Labour Courts should be established, and they should be entrusted with the judicial function of interpretation and enforce- ment of all labour laws, awards, and agreements. The main feature of the proposed Industrial Relations Commission is that it combines in itself both the conciliation and adjudication functions. The Report claims that, if the Commission as recommended is established, it would help the process of collective bargaining and ultimately reduce the inﬂuence of adjudication on the settlement of industrial disputes.

Third altemative--Labour Appellate Tribunal 7.21. As we have already indicatedf it appears that 'he Lnion Government proposes to introduce a comprehensive Bill on the question of industrial relations. The revival of Labour Appellate 1, Para 7.4 an urn.

3. \=t'cio1nl Coiiliiiissioir on iralrtiir---l{cport, I'aI':iQ'r-aplis Etllil vi'-il 2" -(32 l'ni';1 7 'fl and 7- .7, wt]/)'r/.

l'rib'.:n.il inay also have to be considered by the Government, but, /),13,»2:: (it/('/'L', we may point out that it came to be abolished for reasons which may present themselves even today.' These, however. are matters on which we propose to express no conclusion, because we ti-ave had no oppot'ttzt1ily' to discuss this question with the trade-unions itiid the employers.

l€1v::-niinertdation 7.73. The only recotnniendation we would to make in this c'w.nc;-.'i<:»n to the Minister of Law and 3u'~;t:?ce is that he should sug- ge-za tn the Union Minister of labour to take such action as he may deem. tit and necessary, in consultation with the State Governments National Trade-Unions, and bodies of erni2lo_\*ers, to create a machi- lit' \.=.=!1 cf: ?'"I!'i£i ~;cottrage and stre 'ext -:~l!e«"E\ie ':w.rgta?nii1g, will remove polititgtl bulls and pressures i. . .. t't1ntrtitming o'_' trade-unions, and will persuad: boil} the trade--u;.ions and the bodies of employers not to lean on 7.t(ljLldlC€tllt,>I'l. Collective ba':'gz:ini:1i' "*-'):.1ld ﬁnd aspride of niace in the seétiemertt of C(7ll'.'Cti'~.'B disputes' ing that, concilia- '..ion or arbitration should step in, and adjudication should come in. if at all. only last. That is the objective xvhi-Si the Union Labour nster will, '\'/\.' ;.a,e ::o tﬁmtbi, keep in mind it he formulates his prop-os._"tls to enact a Comprel1en.sive Bill to tte industrial rela- trons.

Conclusion .'f'. In t'ni1«.::ttsiot'i_ we wish to enmha<;i'~,.: ll1".t. 'vi our 'icy 31 is '..T«:l'- imc 'i]E!t ti?-.3 macl1ine1'y for the settlement of industrial tiismttes shot.'-d be so devised that the dockets of the High Courts and the 'itipxvsnie Court are not burdened with too many industrial matters.

'. l':r'i1 7' l3 uni'. "-1 1, <"'1'7'/1.

L P(D)1'J4.\[ufLJ&C.»\ 1' CHAPTER 8 DISPUTES RELATING TO SERVICES Introductory 8.1. In this chapter, we shall discuss another type of specialised litig.;tion-tiisoutcx hetxvecza the State and members of the civil service. This class of cases is commonly known as "service matters."

The civil service----the legal background 8.2. Before we go into the actual question, it is desirable to ex- plain the legal background in which the question was framed. The question is primarily concerned with the civil service. Service under the Crown in England (or under the State in another country) has come to be known as the "civil service". It may be of interest to note that this expression itself has an association with India; the expression "civil service" originated in India in connection with the East India Company.' It was provided in the Charter Act' that the East India Company could engage "civil servants".

In order that decisions of the Government may be ﬁrst formulated and then implemented, a corps of Government oﬂicials is essential." This is the function of the civil service, so called in contra-distinction to the Armed Forces and to the exclusion of political servants.

Position in common law---Two balancing principles Position at common law--dismissal at pleasure 8.3. At common law, a civil servant can be dismissed at pleasure, ''00 35 Q:

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restricted only by statute. Even a term providing that the employ- ment of a civil servant may be terminated only in a speciﬁed way would be a clog on the Crown's right to dismiss at pleasure, and therefore unenforceable. The principle on which this peremptory ru,le rests, was thus explained by Lord Herschell.' "Such employment being for the good of the public, it is essential for the public good that it should be capable of being determined at the pleasure of the 1, 5»: '\'l~.m~'er (lxfm-(1 ICnr:li.~l. l)i(**i<~:.:*:'_\'.

2. ('ll 'rter '-t 1>fl75'T'.

3'. ti-1."=.er_. _\r'r~_ii'vistra*i\'c Law (1967, 1>a;( 34'.

4. [Jill-17.1'. 7'///I Oilf/77, (W96) I B. ll' 92 93 Crown, except in exceptional "cases where it has been deemed to be more for the public good that some restrictions should be imposed on the power to dismiss its servants."

Security--the counter balancing principle 8.4. The rigour of this rule is, however, set otf by another principle ~--which, in England, is only a convention, but in India has been given the status of a constitutional provision----whereunder the civil servant has a very high degree of security. Here the principle' is this. It is important that those who are most closely concerned with the higher administration of the public services should, in fact, enjoy security of tenure. without which it would be difficult to ensure conti- nuity of loyal service to successive Ministers of different political par- ties. It is to be borne in mind that in contrast with private emplo- yees, civil servants have to serve a master which in theory is an absrac- tion (the State). and in practice operates through ofﬁcial superiors.

The synthesis between the two principles, apparently in conﬂict with each other, is achieved in the Constitution,' as we shall explain later?

Reason for rule barring action for wrongful dismissal 8.5. It is sometimes stated that the reason for the rule which bars an action for wrongful dismissal by a servant of the Crown is that the relationship between the Crown and its servant "is probably not one of contract at all, but a status, as it is in the case of the Armed Forces"." But even this reason is really one which can be subsumed under the general, and more fundamental, principle of public wel-

fare or public interest.

Rowlatt J. has stated.'--

"The government cannot by contract hamper its freedom of action in matters which concern the welfare of the State- Thus. in the case of the employment of public servants, which is a less strong case than the present, it has been laid down that, except under an Act of Parliament no one acting on behalf of the Crown has authority to emplov .-

. Waile & Phillips, Constitutional Law (i970). pages 218 and 6804182.

. Articles 310 and 31].

3. Paras. 8~13 and 8-14 infra.

4, Ansorl, Law of Contract (1969), citing Shenlon V. Smith, (1995) A.C. 229; Ra/lllfell V. T7207WI8, (1944) K.B. 596; Inland Revenue Commissioner v. Hnmbrook (1956) 2 Q. R. 641.

5. Ra/Zeriaktivbnlaqof Amphilrité V. The Kz'1I(7, (1921) 3 K. B. 500, 504.

-a 94 any person except upon the terms that he is dismissible at the Crown's pleasure; the reason being that it is 1 in the interest of the oonznmn1'ty that the Minister "for the time being advising the Crown should be able to dis- pense with the services of its employees if they think it desirable."

?i'rovision in England crgtriuding jurisdiction of Parliﬁmtemary Commis- ' sioner 8.6. It may be of interest to note that, in England, the Parlia-

".lt'l1[al"}' Coimnissioner Act' excludes, from investigation by the Parlia- mentary Commissioner, "action taken in respect of appointments or removals, pay, discipline, super-annuation or other personnel matter".

atfecting those employed under the Crown (including the long list of public authorities set out in the Second Schedule to the Act) and members of H.M. Forces, including the eserve and auxiliary and cadet forces.

}'osition in Commonwealth 8.7. In many countries of the Commonwealth, the position is the same in substance, and the principle of pleasure, co-existing with the safeguards created by statute, has provided up with a rich harvest of fzxclicizzl dccisions, many of which are from the Commonwealth countries? These cases fully bear out the proposition that the civil servant can be dismissed at pleasure, except in "special cases whereby it is ntherwise pr(J\'i«.l€d by law"?

The rule of pleasure has been altered in many cases in Australia, and civil servants, as a general rule, now have rights which were not thought of in €'lfllCI' days. Gould v. Stuart," provides an illustration of such a case.

8.8. On the other hand, Cross v. Commonwealr/i."' is an example of the complete maintenance of the older rule in the case of the Com- monwealth military forces, even though the statute itself in that case provided that the commission of an oﬂicer should not be cancelled unless a procedure designed to give him a hearing was observed. Knov C. J. held that these words were directory only and that they conferred no legal rights upon an officer.

1. Parli-an1e11'tar_v C'ommissioner Act, 1967, Third Soltcrlnlr-, Para 10.

9. For -at detailed tlisotissinn, soc ),Tar.shall "legal 1'(":1iiIrl'.<i'i]l Fr-turrn eiziie 21] (1

-<er\'ant.<", (1966) 151. O. L.Q. 150: and the judgment of the Austrrtlian High ('mint in .F'l«//deer V. lfnuff, (1933) 60 Commonwealth Law Reports 556.

3. Ir27rz'ml Reremrc Cmnmz'.ssz'om»r \'. flambrook, (1956) 2 QT». (340, 653; on ampa] (1956) 2 Q.B.9.')8, corresponding to (L966)l All E.R. 807, 811 and (1956) 3 All ER. 3.'-'F4.

4. Gouirl V. Stuart, (1896) A.C. 575.

5. C'rn.<'s V. Cr)mmoml'er(WI, (1921) 29 CLR. 2l9.

Aspects of Contract Position viewed from the point of view of a contract 8-9. Some aspects relating to contracts may now also be referred to. A contract may contain, within itself, the elements of its own discharge--in the form of a provision, express or implied, for its termination in certain circumstances. In particular, a continuing con- iraci. may contain 21 provision making it determinable at the op:ion of one of the parties. V Contract of service under common law 8.10. Under the law of master andservant, a contract of service may be for a ﬁxed period of time, or it may be for work without ﬁxing any period of time. In either case, a contract may contain a provision enabling it to be terminated by notice. If the contract does rto'; provide for its termination by notice and is not for a ﬁxed period, then, in the absence of custom, the law implies an 'obligation to give '1 reztswnble nolicc. the reasonableness of the notice being a ques- tion of fact.' If a contract is terminated without giving the requisite notice, the aggrieved party can claim damages for wrongful termina- tion of the contract. If the contract is for a ﬁxed period without any power to terminate it by notice, the termination of the contract, be- fore the er-tjiry of the ﬁxed period, is again, a wrongful termination, the aggreived party can claim damages for its breach.' However, whether the contract is for a ﬁxed period or not, the contract can be terminated by the maefcer if the servant is guilty of misconduct, or conduct which is inconsistent with his duties as a servant. This is the position as regards private employment.

Service under Government 7 A , 8.11. But the position changes in the case of a servant under the Govemment. In England, in respect of service under the Crown--¢ civil as well military~--except where it is otherwise gtrovitied by statute the Crown has the power to dismiss at pleasure' 3'~'The tenure of service at pleasure zzpplies to the Colonies also."

I_ I-Iz1I.¢.7;m'y. Iiwl Hrl. Vol. 23.1331. 499 ct. Seq, . . Ha!sh:1r§',3v'<l Fr]... VI L 25,1). 520, ' . ((1,) Shlffllil-It \'. r\'://tilt, K185}-3) A,(','. 22!) (l'.('.):

(M /loulrl \'. .\/N/Irt, (1896) A.(,'. 575 (i'.('.) (0) Dltmz v. 'l',7w Qttrut, (1896) 1 Q. B. llti.

Ila. gee also para 3.3 to 8-7, supra.

-1. Deﬁrmingz v. Swretary of Slatefor India in C'o1mc17,(l920)37'l'.L.R. 138 (P.('.).

..;

Position in India before the Constitution 8.12. The tenure of service at pleasure applied in India also be- fore the Constitution. In Dennings' case,' the paintiﬁ, Deming, was appointed by the defendant, Secretary of State for India in Council to a post in Bengal for a period of ﬁve years from January. 1910. In breach of the agreement, the defendant tenninated the plaintilfs ap- pointment in January, 1913. No imputation of misconduct was made against the plaintiff. It was held that a Crown servant (even if no mis- conduct was alleged) was liable to be dismissed at the pleasure of the Crown without notice, even if the form of agreement under which he had been engaged implied that except in the case of misconduct the engagement could be terminated only by notice.

Principle of pleuure continued under the Constitution 8.13. The 'tenure during pleasure' principle continues under our Constitution, but with an important qualiﬁcation,--to be noted pre- sently. There are two forms of tenure, of persons holding public oﬂices, namely, (1) tenure during pleasure, and (2) tenure during good behaviour. Tenure during good behaviour applies to persons holding high judicial oiﬁces like the Judges of the Supreme Court and the Judges of the High Courts and also to the Comptroller and Auditor General of India and the Chief Election Commissioner of India. The difference between the two forms of tenure is that a person holding tenure during good behaviour cannot be removed from oﬂice except for misconduct. and the procedure for such removal 'has been laid down in clauses (4) and (5) of article 124 of the Constitution; whilst a person holding tenure during pleasure can be removed without any reason being assigned for his removal.

Modiﬁcation by statute Restriction by statute 8.14. The 'tenure during pleasure' principle, however, can be res- 'tricted by' statute. In India, it is qualiﬁed by the Constitution} which provides several safeguards for the protection of Government servants."

Constitutional provisions relevant.

8.15. We have referred to these aspects of civil service under the State because much of the litigation relating to "service matters"---to whiclrthis Chapter IS devoted--is directly relatable to the constitutional PFOVISIOIIS (articles 310 and 311),' relevant to these aspects.

1. D-'1'/'/t"?/ﬂ V. »"'r"I,'I'l'(l)'_7/ r»'/,\'f«rz'r in Int]/rt. (I920) 37 T.L.l'i. l?i:'»((P.C.).

9. '~'ce l';n-a 8.4., .s-1Ipru.

3. Article 311.

4, Para 3- 17 Ellltl. s. lR, infrr/.

Special Courts 8.16. We shall now consider the specific suggestion with which this Chapter is Concerned, namely, the creation of Special Courts--NationaI as well as State,~for hearing 'Service matters'.

Service disputes 8.17. Disputes in service matters arise in the following circum- stances:---

Article 310 of the Constitution provides that every person who is a member of a defence service or of a civil service of the Union or of an All-India service, or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the plea- sure of the Governor of the State. This principle of holding oiﬁce during 'pleasure"is borrowed from the English Common Law.' Constitutional safeguards 8.18. But, the "during pleasure" principle is, under our Consti- tution. subject to several restrictions and safeguards for the protection of the Government servants. Article 311 of the Constitution provides, in effect, that no Government servant shall be dismissed or removed by an authority subordinate to that by which he was appointed, nor dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charge against him and given a reasonable opportunity of being heard in his defence.

There are other safeguards which have the status of fundamental rights. Clause (1) of Article 16 of the Constitution lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any oﬂice under the State. The Supreme Cour: has held2 that the protection of this clause is not limited to the initial stage of appointment, but throws its protective mantle on the Government servant throughout his career and extends the principle of equality of opportunity in such matters as promotion, selection for special posts, retrenchment, retirement (including compulsory retire- ment), pensi<'=1 and so on. Clause (2) of Article 16 enjoins that no citizen shall on grounds only of religion, race, caste, sex, descent or place of birth. residence or any of them be ineligible for or discrimi-

nated against in respect of any employment or office under the State. ' In addition to these special safeguards, Article 14 lays down that the State shall not deny to any person equality before the law or the equal '. See para. 8-3., supra.

5'. Cmtwrrtl Jlrnz/1_f]rr V. Ifmlf/r1(:7Im'I'. A.T.R. 1962 SI'. ."G, 40-4l.

protection of the law within the territory of India. As stated above, the general guarantee of equality under Article 14 and the special guarantees of equality of opportunity and of non-discrimination under Article 16 have the status of fundamental rights-

Enforcement of safeguards 8.19. The protection of Article 311 against arbitrary dismissal, re~ moval. or reduction in rank, as well as the guarantees of equality of opportunity and of non-discrimination under Articles 14 and 16 can be enforced in Courts of law, and government servants have availed of this remedy in a large number of cases.

Then again, conditions of service of government servants are governed by rules framed under Article 309 by the Central or the State Govemment. as the case may be. These rules lay down the conditions of service and prescribe the procedure which should be followed be- fore taking disciplinary action against a government servant. Further- more. the rules themselves must be consistent with the provisions of the Constitution. and must not offend against the safeguards provided by Aiticle and bf, Articles l4. l5 and 16. In several cases, a go.'.:.'r;ineii=, servant. in his petition before the High Court. has chal- lenged the validity of a particular rule as ultra vires.

Article 226--use of, in service matters 8.20. Article 220 of the Constitution provides a convenient, ex- peditious and effective remedy for every government servant in case of violation of his rights under Article 311 or under Article 14, 15 and

16. or any action against or affecting him which is unconstitutional, illegal, arbitrary or mala ﬁde. It is not surprising, therefore, that a large volume of the work of High Courts consists of disposal of cases arising out of "service matters". In addition, a fairly large number of suits are ﬁled in the civil courts which ultimately reach the High Court, and in some cases. the Supreme Court in appeal. Some peti- tions have been ﬁled in the Supreme Court under Article 32 where the petitioner alleged that his fundamental rights under Article 14 , 15 or 16 had been violated. , Types of service matters Types of cases 8.21. A study of the recent judgments of the High Courts and the Supreme Court indicates that these cases generally arise out of---- (1) dismissal or removal from service, (2) termination of service not falling within Article 311 of the Constitution; (3) compulsory retire- ment; (4) reduction in rank; (5) reversion to substantive post, not amounting to reduction within Article 311 of the Constitution; (6) with- holding of increments; (7) suspension from service; (8) termination of .a 99 probation, as a punishment; (9) abolition of a permanent post; (10) denial of claim to promotion; (11) supersession; (12) non-selection for a particular post or defect in selection: (13) denial of right to senio- rity; (14) denial of or delay in conﬁrmation: (15) reduction or denial of pension: (16) denial of dearness allowance, particularly if there is alleged a violation of the principle of eqtiality: (17) change in condi- tions of service not permitted by the C'onsti;t3:ion or the law.

Cases under (1) and (2) are the most numerous.

Question 7 8.22. Now. the suggestion has been made that service matters slioultt be l'lf3?ll'(l by specialised courts having jurisdiction to try them. to the exclusion of the courts of law including the High Courts and the Su;~.~=-enn; Court. This szuggestioz'. was made with ob;ects in mind. The lll'-'. object to create tribuzizils composed of members with expertise. who can bring to bear their special knowledge and ex- perience upon the consideration of these complicated matters.

As l3;'~s:- .1 '-aid. in case involving the construction of the Ceutrtil Cixil Services (Temporary Services) Rules and the Fundamen- tal Rules. "No one can be blamed for not knowing where they are (sic) in this wilderness of rules and regxilations and coined words and plimges' V-.'i'li l'.l9_lll_\' technical and zirtiﬁcizil meanings."

8.2 ._ e had two -otlier object.:-. in mind in putting the question ,' ourts. First, the creation of such courts reduce the exist- ing arrears in" 'e_ courts (including the High Courts and the Supreme Court). and a's:)'r'eg1uce the load 'oi-"' other courts of law; secondly, it would be in the interest of the Government servants themselves, who will have a better opportunity of placing their grievances before such courts. ' e 8.24. We have considered the proposal on merits, in some of the paragraphs which follow; but, as 'the suggestion has been made from time to time in this country, we decided to elicit opinion on issue. Accordingly. question 9 was framed thus:

"9. (a) Do you favour the creation "of;a court at the national level exclusively vested with jurisdi"é' A over disputes bet- ween the Government and members 0 '(the public service in matters relating to service' (including, inﬁagticular, petitions based on article 311 of the Constitution);Vfgghose decisions will be ﬁnal. subject to appeal to the Supremeft,Tf}§g)urt as indi» cated below? ' 1_ ]LS.K',-Iiq,i'i-(1.0/I'! \'. (m,v,»zafl-M;n,A_t,P, 195<=s.('_419,432.l'.~:~n fl. ~-\'--

". These \V!llltlil1(:ll11lei'¥*!'|l1< :1-irl ('<')'1tllii'vllR -.1" .<m'\'ir-o, [)l'HTllHli')'\'~'. >'er\'i(-8 100

(b) Should such a court be presided over by a person of the status of Supreme Court Judge or High Court Judge, aided by twp experts whose independence is guaranteed by their tenure.

(c) Should the experts referred to in (b) above be members of the Court, or should they be only assessors?

(d) If your answer to (a) is in the negative, what other suggestions would you make as to the terms and conditions of service of its members?

(e) Should appeals to the Supreme Court from the above Court----

(i) be allowed with special leave, or

(ii). be allowed with special leave but only if a substantial question of law of general importance is involved, or

(iii) be allowed with special leave but only if a question of fundamental right is involved, or

(iv) be allowed subject to any other limitation?

(f) Besides a National Court as suggested in (a) above, do you favour regional courts for the purpose mentioned in (a) above?"

8.25. The replies to this question indicate that opinion is divided on almost every aspect of the proposal. The suggestion for the creation of Special Courts at the State level for hearing the grievances of the State Government servants has received a large measure of support, but the proposal for a National Court to decide disputes arising out of matters involving the All-India Services of posts under the Union has not received strong support.

As regards the composition of the Courts. opinion of those who support the proposal is almost unanimous that the Chairman of the State Court should be a person of the status of a High Court Judge, and in the case of the National Court he should be of the status of a Supreme Court Judge, and in each case the Court should have two associate members of high status, one of whom should be an expert and the o'her a senior official. All the replies in favour of the uro- posal have emphasised that the Service Courts, National as well as State, must have exclusive jurisdiction to hear and decide service matters and the jurisdiction of ordinary Civil Courts should be barred.

Supervisory jurisdiction---view as to 8.26. Should the Service Courts be subject to the supervisory jurisdiction of the High Courts under Article 226 and the appellate jurisdiction of the Supreme Court under articles 132 , 133 and 136 of the Constitution or any of them?

101

On this question, the majority of replies were strongly in favour of making these Courts subject to the jurisdiction of the High Court and the Supreme Court, though a small minority favoured the exclu- sion of the jurisdiction even of the High Court and the Supreme Court and the amendment of Articles 32 , 226 , 132 and 136 of the Constitution if necessary-

Special Courts--merits Special Courts---merits considered 8.27. After a detailed analysis of the replies received and giving our anxious consideration to the proposal, we are of the following opinion.

The proposal for the creation of Service Courts has some merit. In several countries, Administrative Courts which deal with the grie- vances of private citizens against the administration also deal with the grievances of civil servants against the State, where illegality is alleged. These Courts enjoy a reputation for independence, impartiality and integrity. In the opinion of several eminent writers, these Administra- tive Courts give a fairer deal to the aggrieved party than the Common Law Courts in England.

;Continental concept of public employment .

8.28. It should be noted that the Continental conception of public employment is somewhat diﬁerent. The civil servant adversely affected by an administrative action that bears on his employment has the same remedies available as the ordinary citizen injured in his personal or property rights. For example, the French civil servant who is damaged in his career by an administrative decision may obtain review of that decision by the administrative courts, just as a private individual can whose property rights are adversely aﬂected by a deci- sion of the administration.' This assimilation of the civil servant in French law, not to the private employee, but to the ordinary citizen vested with personal or property rights, stems in part from the fact that his relationship to'the government is not conceived as a contractual one. "The situation of the civil servant vis-a-vis the administration is wholly governed by statutes and regulations," reads the law of October 19, 1946, now the basic law governing the legal status of the French civil servant. If he is adversely affected by administrative action, he is affected not in his contract rights. but in the rights given him by statutes and regulations. And, he may resort to administrative courts if those rights are violated, just as any Frenclmian can whose personal or property rights are in- fringed by the administration.' '

1. Schwartz, French Administrative Law, page 86. '3. Schwartz, French Administrative Law page 86.

1012

Greater protection and reduction of arrears 8.29. The creation of Special Service Courts in India may, there- fore. provide to the honest and efficient government servant greater and more eficctixe protection against discrimination or 'victimisatiori, 'Tum :12 prcsritt Furthermore. the creation of service Courts may reduce the grow- ing volume of arrears in the High Courts and the Supreme Court, ,'1."m"//(/3! I/1"» are not nzmle subr'€('I to flu' ]'I(I'I.S/{I.('fI'(3II 0/ 1.170 I'!/jg/1 (1 1.;/'i /.-'».';:'<'..' .t'.=ti(*/J .226 and of the Supre-'me C}/Hrr 14.Izt."u;' A/t,'(/cs L53 and L36 <4! I-'':«; ('0/2x'z'ir/v'![.~rz Supervisory jurisdiction Crucial issue---supervisory jurisdiction

830. This brings us to the crucial issue in this proposal. The creation of Service Courts, if it is to serve any useful purpose, must involve the amendment of the Constitution if the supervisory jurisdic- tint: <3" '*2 '».Ié7}~. C'ourt.s and the Supreme Court over thee: i,<,'?:r'.s _s to be abolished. Such a proposal has, however, been opposed by the large majority of replies received by us. They are not in favour of restricting the powers of the High Courts and the Supreme Court for the purpose of conferring "exclusive" jurisdiction on Service Courts.

No likelihood of reduction of arrears if supervisory jumdiction 8.31. But, if the supervisory jurisdiction of the High Court and the Supreme Court remains intact, and the decision of the Service Court is subject to review by these higher Courts, we do not see how the creation of 'Service Courts will reduce the growing volume of .trreai\" in tin: ».; Courts.

Existing rules eleguate 8.32. There is one more consideration which has weighed with us in dealing with the present problem. We have carefully considered the procedure prescribed by the relevant statutory Central as well as' State Rules in relation to disciplinary proceedings, and we are satis- ﬁed that the procedure prescribed by these Rules is, on the whole, satisfactory. All the essential ingredients of a fair and just trial are prescribed by the relevant Rules and experience shows that this pro- cedure, which is self-contained. has generally not caused miscarriage of justice. Since this procedure has, on the whole, operated satisfac- torily over the years, it would, we think, be unnecessary to make a

1. Para 8-27 supra.

2. See Para 8-29, supra.

103

radical Change by recommending the creation of a Service Tribunal. lit: ihis ¢f:m.3:7iion_ wz' ought to cmphasise =.i~'.\t, it' in 1» ;.<zi-re': .z~:-e. the procedure prescribed by the relevant Rules is not strictly followed, or the fundamental rights guaranteed by articles 14 and 16 are contra- vened, or the requirements prescribed by article 311 are not complied with in their letter and spirit, the aggrieved public servant is entitled to claim relief under the writ jurisdiction of the High Court, and (if i"t2i1d3i--vcr;t;-[2 1'i:"_ll".~ ;~. 3 '-"izterﬁl, the Svmrenie Chart. In our oninion, the existing legal and constitutional position affords sufﬁcient protec- tion. W-3 r.a- iltvi. :f1='i'cl'<~r:' :e:.'-.'~:ri';'~~:;::' the Cr",',1"t7'l of '1 <en;»i'ate Service Tribunal.

Likelihood of abuse 8.33. There is yet another reason which is against the proposal. lt may be true that Service Courts consisting of judges of high status, i:;;ic;;=:_i;clencc, and integrity. will gixc prob;-::i.I-ax'; to t'-7r',l1.ne<t 'and capable Government servant against victimisation, discrimination, or arbitrary action; but, as against this, we cannot ignore the fact that access to Service Courts with large powers of interference with execu- tive decisio-its it lil<e"\' to be abused by tin-zieriservirfg or dishonest officials, and may conceivably, in some cases, be subversive of disci- pline, inasmuch as undue advantage may be taken of the facility pro- vided.

Conclusion 8.34» Taking all the relevant circumstances into consideration. we are of the opinion that the existing provisions for the protection oi! the rights of the Government servants are on the whole adequate, and the creation of Special Service Courts is neither necessary nor desirable under the present conditions prevailing in India.

CHAPTER 9 ZONAL COURTS OF APPEAL--PROPOSAL FOR CREATION OF Question 10

9.l. Question Number 10 in our Questionnaire deals with the suggestion for creating Zonal Courts of Appeal. It reads thus:--

"Do you favour the creation of Zonal Appellate Courts dealing with appeals against the decisions of High Courts in a parti- cular Zone?"

Question 11 _ 9.2. Question Number 11 deals with the details of the composi- tion Zonal Courts and the points raised by clauses (a) to (d) of that Question would naturally have fallen to be considered if we had decided to recommend the establishment of Zonal Courts. Question Number 12 reads thus:----

"If you are not in favour of Zonal Courts of Appeal, as proposed above, have you any other suggestions for avoiding the possibility of accumulation of arrears in the Supreme Court"?

Question 12 9.3. Since we have decided' not to recommend the creation of Zonal Courts, it is unnecessary to consider the points raised under Question Number 11. Under Question Number 12, just a few sugges- tions have been received. but they are not of any signiﬁcance and so it is not necessary for us to deal with Question 12 as well. We will now deal with Question Number 10 and ﬁrst indicate brieﬂy the grounds which were urged in favour of establishment of Zonal Courts.

Idea of Zonal Court 9.4. The idea of Zonal Court was suggested for our consideration by some eminent persons who occupied a very high position in the judicial life of this country. In support of this idea, it can be urged that the establishment of an intermediate Court of Appeal like a Zonal Court may help to reduce the load on the docket of the Supreme Court. The idea of the Zonal Court postulates that our country should be divided into four Zones and each Zone should have

1. Para 9-15. infra.

105

it Zonal Court. Zonal Courts, according to this concept, are really intended to function as Courts of Appeal at the stage of the High Courts. This idea postulates that in each High Court, all the Judges should function in single Divisions, and appeals against their judg- rnents should lie to the Zonal Courts. Zonal Courts should be com- poscd of Judges, selected from each of the High Courts in the States constituting the Zone on some rationale principle as that of seniority. The Chief Justice of each High Court and one or two of his senior colleagues should become members of Zonal Courts. The Zonal ("ours thus contemplated would function like Circuit Courts. They should hold their sittings in each High Court and hear appeals against the judgments delivered by single Judges of that High Court. Since Zonal Courts would thus be constituted by senior judges of the High Court and may sit in a Bench of three judges, it was suggested that article 136 of the Constitution could be suitably amended and appeals against the decisions of such Zonal Courts should be allowed only in substantial question of law of general importance. If the idea of the establishment of Zonal Court is accepted, some consequential amend- ments may have to be made even in articles 133 and 134.

Additional grounds in support of proposal for Zonal Courts 9.5. Some additional grounds in support of the proposal were also suggested for our consideration. One reason in support of this idea was that it would encourage mobility amongst the lawyers of different High Courts constituting the Zone and would enable healthy exchange of ideas amongst diﬂerent Judges who would consti- tute the Zonal Courts. The number of Judges, who should constitute the Zonal Courts in each Zone, would naturally depend upon the ex- tent of work which was likely to come before such Zonal Courts. it' in each High Court a Zonal Court of three Judges consisting of one Judge from the High Court concerned and two Judges from outside is formed, it would, it was thought, enable exchange of judicial ideas and that would be a healthy development in making the administration of justice more satisfactory. ' Desirability of avoiding local pressures 9.6. Another argument which was urged in support of this idea was that complaints are heard in some quarters that some of the Judges of the High Courts in some places are likely to be subjected to local pulls and pressures and it was apprehended that this ten- dency to attempt to exert local pulls and pressures even on Judges of High Courts may conceivably increase in future. That is why, a Zonal Appellate Court, consisting of three Judges, two of whom 106 would be from other High Courts, functioning in a State which is a constituent of the Zone, would avoid this unhealthy trend. Mobility of the Bar, to which we have already referred,' was also emphasised as a very important factor. it was thought that if Zonal Courts begin to function, members of the Fiat' from one High Court are likely to be in\i'ed to appear in other High Courts, forming pasts of the Zcne.. and any step. which establishes more intimate relationships between Bztrs prttctising in clan";-i'ent High Courts, would be welcome.

Imports-"ice at one language

--}'.7. /*.,';"'.ll;.'l" grounti whicn v.;t.~: suggeszcd in t'avo=.:r of this idea was that if Zonal Courts are estab7ished, they would naturally function in Engiish until Hindi becomes rich and ripe enough to take the place of English and it receives acceptance from all the States of the country, including particularly the non-Hindi speaking States. The argument that in the interest of judicial z:clmin?s:trz.'-'Wt. it is lt1t~ portant that the High Coims and the Supreme Court "'1L'Il'(i function in the same language. For quite some time. this language has to be .1 and the advocates of the concept of Zonal Courts fear that undtir local re'-:'«~:.ssures, it is not unlikely that High Courts may begin to 'unction in the language of the State and if that happens, it will h€t'»C adverse et"l'-acts on the efficiency of judicial administration and impair the utility of judicial process as an important insirunient for stistaizting the u"ity of the country. If the High Courts begin to func- tion in regional languages. vhe language of the Supreme Court may pose a serious question Wl1li'l'1 may be over-loaded with political con- siderations: and such a possibility can be avoided if Zonal Courts are established because that would guarantee the continuance of English for such time until, as we have already mentioned, Hindi takes the place of English with the concurrence of all the States.

It is on such considerations that the Commission was requested to consider the concept of Zonal Courts.

Views expressed on the proposal 9.8. In reply to the Questionnaire, we received answers from different Bar Associations and High Courts and we found that the opinion expressed in these answers is almost unanimously against the concept of Zonal Court. After careful consideration of these replies and giving due weight to the grounds set out above in support of the concept, we have come to the conclusion that it would be unreasonable and unwise to accept the concept and to recommend it to the Union Government-

107

Proposal mot favoured 9.9. In our view, it would be undesirable to require that all High Court Judges should function in Single Division and' that every appeal against every appealable decision of a Single Judge of a High Court should be taken to the Zonal Court; as most of the High Court Judges have stated in their replies as well as in their oral discussions with the Commission, this would impair the dignity and status of the High Court Judges.

Problem of selection 9.10. Besides, the selection of Judges for the Zonal Courts would present problems which it would be very diﬂicult to solve in a rational manner without creating bitterness and dissatisfaction in the minds of many High Court Judges.

Socio-economic history of local leglshtion 9.11. There is yet another consideration which is very much against the concept of Zonal Court. In many States, High Courts are called upon to consider questions of interpreting provisions of diﬂerent pieces of State legislation, and it is well-known that when socio- economic legislation is passed by any State. it has a history of its own. The context in which the legislation has been passed. the mischief which it is intended to cure and remedy, the conditions which are laid down in diﬁerent provisions of the Act by reference to the genesis of the Act, the previous legislation, if any, in respect of the matter and prior judicial decisions in respect of the provisions thereof are all relevant factors, and it is diﬂicult to visualise that the two additional Judges, who would constitute the Zonal Court alongwith one Judge of the High Court of the State, would be able to appreciate these rele- vant factors as well and as quickly as the Judges of the said High Court would themselves be able to do.

Objective of reducing docket of Supreme Court not likely to be achieved 9.12. Even if Zonal Courts are established, since they would take the place of the Courts of Appeal of the different High Courts, it would not be easy to accept the suggestionz that ﬁnality should be attached to the decisions of such Zonal Courts and articles 133 , 134 and even article 136 of the Constitution should, accordingly, be suit- ably modiﬁed; and if these articles cannot be modiﬁed even after the Zonal Courts begin to function, that cannot help the main objective of reducing the burden on the (locket of the Supreme Court.

1. Para 9~4, supra.

2' Para. 9'4, supra.

L/P(D)l95'.\l0fLJ&CA---8 198 Sense of separateness likely to be created 9.13. Besides, it is feared by those who oppose this concept that if the country was divided into four Zones and Zonal Courts were established in such Zones, far from helping the integration of the country, it may create four blocs attadied to each other, and may en- courage a sense of separateness in these separate blocs.

L Queﬁion of language considered 9.14. In regard to the problem of the language' of the Court, it is urged that one need not take recourse to the concept of the Zonal Courts to achieve that objective. On principle, it can and should be urged that it is desirable and essential that the language of the High Courts and the Supreme Court should continue to be one and that one language, for some years, has inevitably to be English- On this point, both the advocates and the opponents of the concept of Zonal Courts are agreed. The opponents, however, contend that an artiﬁcial device of establishing Zonal Courts which would radically alter the structure and functions of the High Courts, would hardly assist the object on which most of the lawyers and Judges of the country are agreed. Therefore, we have come to the conclusion that the idea of Zonal Courts cannot be accepted and should not be recommended.

Conclusion 9.15. As we have already indicated," in View of this conclusion, Question No. 11 does not fall to be considered and on Question No. 12, we have received just a few suggestions which need no examination.

9.16. This disposes of Questions 10 to 12 of our Questionnaire.

1. Para 9-7, supra.

2, Para 9-3, supra.

CHAPTER 10 CONDITIONS OF SERVICE OF JUDGES Introductory

10.1. We now proceed to deal with the terms and conditions of service mainly of the Judges of the High Courts and, incidentally, of the Judges of the Supreme Courts as well. We ought to add that we regard our recommendations on this point as very important and in- deed, we attach considerable signiﬁcance to this part -of our inquiry.

Conditions of service of lower judiciary 10.2. Before we proceed to deal with the problem, we ought to make it clear that we are fully conscious that terms and conditions of service of the members of the lower judiciary require improvement in a substantial manner without any delay. In fact, in our Report on the Code of Civil Procedure,' we have devoted one Chapter which deals with the terms and conditions of the subordinate judiciary and with other measures, such as the setting up of a National Academy for training Junior Judicial Oﬂicers with a view to improving the quality of judicial service in that cadre. While doing so, we were conscious that we had been asked to make recommendations about the revision of the Code of Civil Procedure and, strictly speaking, the terms and conditions of service of the subordinate judiciary were not within the purview of that reference. Besides, we were also conscious that the terms and conditions of service of the subordinate judiciary, and the steps we had recommended for the improvement of quality in the cadre of subordinate judges were constitutionally subject to the autho- rity of the State Governments and, yet, we thought that the question was of such importance that we should, by devoting a Chapter to that problem, invite the attention of the Union Government and request them to get in touch with the State Governments and consider the recommendations made by us favourably and as early as possible. We have made these observations at the outset of the present discussion, because we are anxious to avoid the impression that we are concen- trating on the improvement of the tenns and conditions of the higher judiciary and are ignoring the urgency of the problem of substantially improving the terms and conditions of service of the lower judiciary.

1. 54th Report (Code of Civil Procedure).

109 110

Question 14 10.3. In order to ascertain opinion from the members of the Bar, the Judiciary, and other interested parties, Question 14 was thus for- mulated by us in our Questionnaire:

"Do you agree with the suggestion that one of the necessary steps to help the eﬂicient and speedy disposal of cases in the High Courts is to attract experienced, senior and competent lawyers to the Bench, and that this object may be achieved if---

(t) the terms and conditions of service of the High Court Judges are improved;

(ii) their age of retirement is increased to 65 years;

(iii) the salaries of the Supreme Court Judges -and the High Court Judges are increased, or, in any event, suitable additional fringe beneﬁts are provided for them;

(iv) on retirement, the pension of the Supreme Court Judges and the High Court Judges is made equal to their pay, or. in any case, is materially enhanced?"

Gist of views exprwsed on the question 10.4. On this question, considered as a whole, evidence received by us from the Bar Associations and from the Judges of the High Courts is unanimous. It is clear from the answers sent to us by the Judges of different High Courts in writing after discussing the question in their respective chamber meetings, and the oral evidence given by Judges of the High Courts, visited by the Members of the commis- sion, that all the Judges of the High Courts are completely dissatisﬁed with the present position in regard to the terms and conditions of their service. All of them complained that, though they are doing their best to discharge their onerous function in the administration of law, they do not feel at peace with themselves, because of the unsatis- factory nature of their salaries and the absence of any additional amenities. We wish to emphasise that the existence of such wide- spread discontentment in the minds of almost all the Judges of the High Courts is a very disturbing factor, and its relevance in the dis- cussion and decision of the question of improving their terms and conditions of service must be fully recognised.

View of Supreme Court Bar Association 10.5. We do not propose to deal with the evidence supplied by the replies sent to us by the dilferent Bar Associations; but we think it would nc be inappropriate to refer to the opinion expressed by the Supreme Court Bar Association as an illustration.

111

This is what the Supreme Court Bar Association has said in reply to the relevant question:' "We are strongly of the opinion that the most essential step to aid in the eﬂicient and speedy disposal of cases in the High Courts is to attractable, experienced and competent lawyers to the Bench. We feel that the terms and condi- tions of service of the High Court Judges should be sub- stantially improved. Their age of retirement should be increased to 65 years so as to be at par with that of the Judges of the Supreme Court. Suitable additional fringe beneﬁts should be provided for the Judges of the Supreme Court, the High Courts and the Tribunals and Courts mentioned above. On retirement, the pension of "the Supreme Court Judges, the High Courts Judges and the Members of the Tribunals mentioned above should be equivalent to not less than two-thirds of their pay, and provisions for free medi- cal aid and subsidised housing should be made for them after their retirement."

Work of Administrative Service not under-estimated 10.6. After this summary of opinions, we shall dispose of one as- pect concerning the proposal for an improvement of the conditions of service of Judges of the High Court.

In discussing the question of the improvement of the service con- ditions of the Judges of the High Court, it is necessary to remember that comparison of their salaries with the salaries drawn by mem- bers of the Administrative Services is really not relevant and, in any case, should not be given undue signiﬁcance. We have no hesitation in expressing our appreciation of our brilliant young men and women who, in a spirit of idealism. join Administrative Services in our coun- try, though they know fully well that the salaries with which their careers initially begin are inadequate and that, even at the end, the salaries which they may expect to draw at the top of the ladder may also not be attractive. We are also conscious that as members of the Administrative Service rise in their own cadre, they deal with impor- tant matters concerning the welfare of the community, because a wel- fare State like India has inevitably to lean on its administrative agency to carry out the welfare policies laid down by socio-economic legislation. Therefore, when we say that the salaries drawn by the members of the Administrative Service should not be treated as rele- vant or signiﬁcant in re-examining the question of the terms and con- ditions of Judicial Service, we do not wish in any manner to under- estimate the importance of administrative work in the progress of our country.

*. S. No. 74 (Supreme Court Bar Association).

112

Prospects of promotion in adniinislrative service 10.7. When a person chooses to join Administrative service, a spirit of idealism no doubt inspires his choice. because, as we have already pointed out,' his initial saiary is inadequate, and the highest he may hope to reach cannot be regarded as too attractive. But, on the other hand, when he begins his career, as an Administrative Oﬁi- cer, he has a security of tenure, and" he occupies a position of authority in the area for which he is appointed. He is entitled to look forward to a gradual rise in his salary according to the increments prescribed in his scale. He is also entitled to look forward to promotion and, in that sense, from the commencement of his career, he does not have to face the problem of uncertainty about his future.

fosition of members of the Bar dilierent 10.8. The position in regard to the members of the Bar who are called upon to join the Bench is very different. All persons who join the Bar----including those who have reached the highest position in the profession---have to face the severe test of a fairly long period of pro- bation when briefs do not come their way. When the junior begins to get briefs, he is never too certain that the ﬂow of briefs will conti- nue until he reaches a stage when he establishes his own reputation. and the sense of security in the profession can then be enjoyed by him. All of us must recognise that members of the Bar who are invited to join the Bench have to face a peculiar dilemma?

Problems dealt with by administrative service not so complex 10.9. Besides, the problems which the administrative branch of the public service has to face are, by and large, not so complex, sensi- tive or difficult as are the problems which the higher judiciary has to face. Thus, the nature of work performed by the two branches, the administrative and the judicial, also materially differs. It is in the light of these circumstances that we take the view that the position of the administrative service is not comparable to that of the higher judicial service and, from that point of view, in dealing with the pro- blem of the terms and conditions of service of the High Court Judges, the emoluments paid to the public servants in the administrative branch should treated as irrelevant, Opinion if distinguished persons in democratic countries--Churchill's speec .

10.10. Having summarised the position of the evidence which we have to consider in dealing with the question, and having dealt with the question whether Judges can be compared to members of the '~ See para 10- 6, supra.

2' See Para l0'l6 infra.

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administrative service, we propose to refer to the opinion expressed by important and distinguished persons in two democratic countries. in order that our discussion in' this Chapter. and the recommendations which we propose to make', should be considered by the Union Government in their proper perspective.

When Churchill moved a Bill for raising the salaries of Judges in England on the 23rd March, 1954, he paid a tribute to the service rendered by Judges and bore eloquent testimony to the importance and signiﬁcance of their work. Said Churchill.' "The service rendered by Judges demands the highest qualities of learning, training and character. These qualities are not to be measured in terms of pounds, shillings and pence accord- ing to the quality of work done. A form of life and conduct far more severe and restricted than that of ordinary people is required from Judges and, though unwritten. has been most strictly observed. They are at once privileged and res- tricted. They have to present a continuous aspect of dignity and conduct... The Bench must be the dominant attraction to the legal profession, yet it rather hangs in the balance now, and heavily will our society pay if it cannot command the ﬁnest characters and the best legai brains which we can produce; and heavily will our country pay in an epoch where our relative material power has diminished. if we do not sustain these institutions for which we are renowned."

In fact, like many of Churchi1l's utterances, this piece has attain- ed the status of a classic.

Silverman quoted 10.11. Participating in the debate? in support of the Bill moved by Churchill, Mr. Sidney Silverman said, "The real case for this increase is the quite simple one, for which we need make no apology at all, that the value of the salary IS not now equal to the nature of the job. I agree with my hon. friends who said that we were living in a diﬁerent kind of society from that in which we were living in 1831. Judges cannot expect to retain that degree of advantage over ordi- nary citizens which they enjoyed then. But it is very different from saying that the discrepancy was too great, than to say that the salary, with all the charges that have taken place since then, is adequate now.

1- H. 0. Debates {23rd March, 1954), V01. 525, Col. 1051,1052. 2' H.C. Debates (23r 7. March, 1954), Vol. 525, Col. 1099.

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The proof that it is not is that there is great dissatisfaction on

-- the judicial'Bench, whichis anew phenomena. One must have sulﬁcient conﬁdence in the judges to recognise that it almost unanimously they 'feel aggrieved, disturbed and in- adequately treated, there is probably suﬂicient in the grie- vance to justify this House in correcting it. For these reasons, I support the Bill."

Salaries revised in England since 1873 10.12. So far as England is concerned, it may be noted that the salaries of the higher judiciary, last increased on April 1, 1966, were increased again under the Judges' Remuneration Order, 1970. The new scale of £11,500 p.a. for a High Court Judge compares' with £10,000 introduced in 1966, £8,000 in 1954 and £5,000 in 1873. This will clearly show that in England, Parliament has been raising the salaries of Judges during the last 100 years.

Present salary in India not adequate 10.13. In India, until 1950, a Judge of the High Court received Rs. 4,000 as his monthly salary, whereas, when the Constitution came into force in 1950, the said salary was reduced to Rs. 3,500 per month. The amount of Rs. 3,500 per month cannot, in our opinion, be regard-

. ed as a reasonable salary for the Judges of the High Court.

Mansield's View 10.14. It was stated' by Lord Mansﬁeld (though in a different context) that a senior member of the Bar with good practice, when called upon to join the Bench, is in a whimsical situation between tragedy and comedy; inclination drawing one way and imperative call of duty to serve on the Bench the other.

It is noteworthy that, over the years, the British Parliament has shown awareness of this problem and has, as already indicated by us', increased the salaries of the Judges from time to time.

Increase in pofessional gains since Second World War 10.15. It is sometimes not appreciated by persons who are not connected with the working of the High Courts and the Supreme Court 1- See (a) Hold-sworth,H.E. L., Vol. 1. _

(b) Editorial in (1970), 120 New Law Journal 421.

2' Lord Mansﬁeld, letter to Garrick, quoted by Holdsworth, Some Makers of English Law.

'- Para 10-12, supra.

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that a signiﬁcant phenomenon has taken place in relation to the func- tioning of these Courts. After the Second World War, the cost of living has been steadily increasing, until we have reached a stage when it can be said without any exaggeration that Judges, who draw a salary of Rs. 3,500 are ﬁnding it diﬂicult to live a life with ordinary amenities

----much less a life of comfort and ease. On the other hand, after the Second World War, the professional gains at the Bar have increased by leaps and bounds. The inevitable result of this anomalous situation has been that senior members of the Bar have lost faith in the validity of the principle which governed the ethics of the Bar in the past, and which compelled them as a matter of duty to the profession to accept an invitation of the Chief Justice to join the Bench. In the past. if .the Chief Justice of the High Court sent for a member of the Bar and oifered him an invitation to be his colleague, it was thought to be a matter of duty to the nation to say "yes" and never to decline the offer. Decline in the faith of this professional principle has now led to this unfortunate and distressing result that the Chief Justice of every High Court has the sad experience of getting a "No" to his request from several members of the Bar. This is a circumstance the relevance of which cannot be ignored in considering the present problem.

Reason for reluctance 10.16. Any senior, or even mid-senior, practitioner at the Bar is used to a certain way of life and to the conveniences and comforts of the members of his family and the education of his children in a certain style. Besides, he has before him an alluring prospect of reach- ing the position nearabout the top of the professional ladder where professional incomes have reached unprecedented heights today. In this situation, if members of the Bar are reluctant to join the Bench, it would not be easy to disapprove of or condemn their conduct- It is from the class of these members of the Bar that the Chief Justices of the High Courts are very keen to recruit members on the Bench.

This predicament is the determining factor for the quality of the higher judiciary, and, therefore, it will be dangerous and ostrich-like to ignore this dilemma.

The dilemma, to which we have referred, should not be treated as illusory, and the reality behind the dilemma should not be ignored in considering the service terms of the High Court Judges.

Role of judiciary in determining important questions of law 10.17. There is another aspect of this problem, to which we must refer. In a democratic State, committed to the ideal of establishment of socio-economic justice and the creation of a new social order of an egalitarian type, it is well-known that the law plays a major role as 116 an instrument of change, and so. it is but natural that uestions about the validity of the law or even about the construction 0 its benevolent provisions are bound to play a major role in assisting democracyjn its onward march towards socioeconomic justice. In dealing with questions, both constitutional and legal, which the judicial process has to face from time to time, both the lawyers and the judges have to play their role not merely as legal technicians but as jurists. We must note that the stakes involved are very high.

Cohen-'s view 1018. What Cohen has observed about the role of lawyers, in our view, applies equally to the role of Judges. Says Cohen':

"A lawyer must study the stream of life and be constantly think- ing of ways of improving the containing legal forms. We too» are men, and now we will live not as pall-bearers of dead past but as the creators of a more glorious future. By all means let us be loyal to the past, but above all loyal to the future, to the Kingdom which doth not yet appear."

Judges must possess vision 10.19. Discussing the function of the Judge, W. A. Robson(2) has pointed out that stress is always laid on the duty of a Judge to be a trustee of the past, but, in reality, it is far more important that he should be a prophet of the future, in so far as that is compatible with the faithful administration of the existing body of law.

Even as to the problem of judicial interpretation, a Judge must be endowed not only with deep knowledge of law, but must also possess a proper vision about the signiﬁcance of the role of law in a democra- tic State. As Cardozo has observed.' "The problem of judicial interpretation is to hold a just middle way between excess of valour and excess of caution." "My duty as a Judge may be", said Cardozo', "to objectify in law not my own aspirations and convictions and philosophies, but the aspirations and convictions and philosophies of men and women of my times. Hardly shall I do this well if my own sympathies and beliefs and passions and deviations are with a time that is past."

1- Morris R. Cohen, A Dreamer': Journey, (Autobiography of Morris R. Cohen), pages 18\0-181.

2' Robson, Justice and Administrative Law, pages 242-245. 3- Margaret E. Hall, (Ed) Selected writings of Benjamin Nathan Cardozo. p- 40 4' Cardozo, Nature o1"the Jurlicial Process, p. 177?

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This illustrates the proposition which we have just enunciated, namely, that both lawyers and Judges must bring to bear upon their respective tasks not only their skills as technicians in the law, but also:

their vision as jurists.

Law as a dynamic instrument 10.20. In a democratic State, law can never be static. It is dyna-

mic, and it is fully conscious of its purpose as an instrument of social. change. It is in connection with this dynamic role of law that Fried- mann' has observed:

"It would be tragic if the law were so petriﬁed as to be unable to respond to the unending challenge of evolutionary or revo- lutionary changes in society. To the lawyer, this challenge means that he cannot be content to be a craftsman. His technical knowledge will supply the tools, but it is his sense of responsibility for the society in which he lives that must inspire him to be jurist as well as lawyer."

Crucial role of Judges 10.21. Having referred to the signiﬁcance of the role of law and the importance of judicial process in that connection, we ought to add that Judges have to play a crucial role in this process. As Mr. Eric Fletcher has statediz "Whatever detailed reforms may be introduced for improving the machinery of justice, for speeding up the process of litigation and for developing a more expeditious and cheaper system of justice in the country, we shall always ﬁnd that the linch-V pin of the system is the Judge."

When we are discussing the question of revising the terms and conditions of service of the Judges, we must bear this observation in mind.

Problems of arrears _ .1022. All persons, who take interest in the administration of justice, are disturbed by the problem of growing arrears in different High Courts and even in the Supreme Court; but it is not appreciated by ordinary persons that this problem cannot be solved merely by appointing additional number of Judges. When one speaks of expedi- tious disposal of cases pending in the High Courts and the Supreme Court, one is not asking for superﬁcial or hasty decisions of cases; one is expecting the Judges to bring to bear upon their task the wealth D'. W. Friedmarin, LaW in ii chanzin SO"iety, p. 503.

3. Eric Fletcher in H.C. Debates, 23rd March, 1954, C01. 1089.

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of their experience and their legal acumen coupled with a vision of the true character of their function with a view to dealing with matters expeditiously; and, in that connection, the quality of the Judges matters much more than the number of Judges.

Likely consequence of refusal by members of the bar lO.23. If we ﬁnd by experience that distinguished and experienced lawyers continue to say 'No' to the invitation made by their Chief Justice to accept a seat on the Bench.

Chief Justices may have to choose lawyers who do not occupy a positicm even in the second rank at the Bar. Lawyers of this category may. no doubt, be happy to be elevated to the Bench; but selection of such lawyers will not add to the strength of the Bench; on the con- trary. it may lead to the lowering of judicial standards and deteriora- tion of the administration of justice. This fact cannot be ignored in dealing with the problem of the improvement of the salaries of the High Court Judges.

If the Chief Justices of High Courts show reluctance to choose such lawyers for elevation to the Bench, the only course open to them would be to recruit on the Bench distinguished District Judges; and, if such a course is adopted, as it may well have to be, ultimately all the High Courts may be manned by District Judges, because in their case, elevation to the High Court Bench invariably means substantial ﬁnancial rise in their salaries.

Limitations of persons appointed from the subordinate judiciary 10.24. When we make this observation, we are not, in any manner, under-estimating the quality of the contributions made by some District Judges who were elevated to the Bench of different High Courts. Ex- perience shows that District Judges elevated to the High Court Bench bring to bear upon the discharge of their functions a balanced approach and a mind trained by long judicial experience in appreciating evidence and in assessing the merits of rival contentions. But there is no denying the fact that, in his long judicial career, a member of the subordinate judiciary does not get an opportunity to become familiar with some of the important branches of law which constitutes an important part of the judicial business of different High Courts.

Thus, in some respects, their work in the High Courts is qualita- tively dilferent from that which they do in the district courts.

Variety of experience gathered by members of the bar 10.25. On the other hand, members of the bar, who practice in their respective High Courts, become familiar with all branches of law and acquire excellence and expertise by virtue of the experience gained in handling a variety of cases before different Benches of the High 119 Courts. Besides, on elevation to the Bench, successful members of the Bar bring to bear upon the discharge of their duties a fresh outlook characterised by creative thinking and unhampered by precedents and inspired by the vision of the role which law has to play in a democratic society.

Role of each complementary to role of other 1026. We would like to add that on the Bench of the High Court those appointed from the bar and those appointed from the subordi- nate judiciary are complementary to each other, but in no sense a substitute for each other-

That is why Chief Justices always expect to have a large number of practising lawyers on the Bench, in addition to the District Judge who, by the excellence of their work, are naturally promoted to the High Court. This expectation of the Chief Justices is being gradually defeated. That is a very serious problem which the administration of justice in the High Courts is facing today, and may have to face in future in a much larger measure. We earnestly hope that the policy- makers in our country will take this consideration into account in dealing with our recommendations on this subject.

Present economic conditions not a deciding factor 10.27. It is in this background that we have given anxious consi- deration to this problem. In doing so, we have constantly borne in mind the fact that we have adopted the ideal of establishing a new society based on social, economic and political justice in our country and that a democracy like ours is reluctant to allow any section of public servants to claim exaggerated salaries or amenities. We have also taken into account the fact,----very distressing indeed----that. at present, we are passing through a very difﬁcult time. But the problem, we are dealing with, is a long-range problem, and we suggest that, in ﬁnding proper solution to this problem, the present economic conditions in the country should not be the deciding factor.

Recommendations 10.28. Having considered all the aspects and given them very careful thought, we are not inclined to recommend any increase in the salary of High Court Judges. We would, however, make the fol- lowing recommendations which we earnestly suggest should be taken as one integral recommendation.

Age of retirement of High Court Judge to be increased to 65 years 10.29. We recommend, in the ﬁrst place, that the age of retire-

ment of the High Court Judges should be raised from 62 to 65 years.' This question has been argued over and over again, and we do not 120 think it necessary to advance elaborate arguments in support of our recommendation We may only add that, in its Fourteenth Report, the Law Commission' had made a similar recommendation.

If the High Court Judge is normally appointed at the age of 45 to 50 years and is able to look forward to a career on the Bench for 15--20 years, that may, we venture to think, persuade some of the members of the Bar, who are inspired by the desire to serve the cause of the administration of justice, to accept the invitation of their Chief Justices to serve on the Bench. We do not apprehend that, if the age of retirement of High Court Judges is raised to 65, there would be diﬂiculty in persuading eminent Judges of the High Court to move to the Supreme Court. Appointment as a Judge of the Supreme Court is regarded by all the members of the higher Judiciary as the highest prize, and the identity of the age of retirement of Judges of the High Courts and the Supreme Court will certainly not act as a disincentive to the High Court Judges if they are called upon to join the Supreme Court.

Incidentally, raising the age of retirement will mean that the vacancies will arise less frequently than at present. As the average age of appointment may be expected to be as at present a longer tenure automatically means less frequent vacancies. ' Free unfurnished house or house rent allowance 1101- High Court Judges 10.30. Secondly, we recommend that Judges of the High Courts should be provided with a free unfurnished house. or, in lieu thereof, a suitable amount of House Rent Allowance. The option should be left to the Judges in this matter. It may be provided that, in regard to High Courts situated in cities notiﬁed as "A" Class for the purpose of the general rules in force for the drawal of house rent allowance by Central Government servants, the House Rent Allowance should be Rs. 500 per month and in other cities it should be Rs. 350 per month. It is hardly necessary to add that exemption from the taxability of the house rent allowance should be permissible to the extent to which it is exempt in the case of ordinary Government servants.

Conveyance allowance 10.31. Thirdly, we recommend that a conveyance allowance of Rs. 300 per month should be given to Judges of the High Court-

Pension of Judges 10.32. Fourthly, in regard to pensionary beneﬁts, we recommend as a broad rule that High Court Judges who have rendered ten years of service or more should, on retirement by superannuation, get by way of pension half their monthly salary.

1. 141:}: Report (Reform of J udjcial Administration).

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If a High Court Judge retires otherwise than by superannuation, after completing ten years of service or more, he should be entitled to a pension of Rs. 1,000 per month. Similarly, if a High Court Judge retires (otherwise than by superannuation) after completing less than ten years of service, he should be entitled to a proportionate pension not to exceed Rs. 500 per month (the amount will be determined proportionately according to the length of service, subject to the maximum of Rs. 500 per month).

Pension to be granted to widow of sitting High Court Judge 10.33. Fifthly, we recommend that if a sitting High Court Judge dies, his widow should receive a monthly pension of Rs. 500 or of an amount equal to half the pension to which the Judge would have been entitled, if he had retired on the date of his death, which- ever is higher. This pension should be paid to the widow during her life time.

Pension of Chief Justice of High Court to be increased 10.34. Sixthly, in regard to the Chief Justice of a High Court retiring on superannuation, we recommend that if a Judge functions as Chief Justice for ﬁve years or more, he should get, as his pension, half his salary as Chief Justice. If he functions as Chief Justice for less than ﬁve-years, his pension should be proportionately determined- But in no case should his pension be less than the maximum pension of a High Court Judge.

Medical beneﬁts after retirement to High Court Judges 10.35. Seventhly, we recommend that free medical attendance and other medical beneﬁts, available to the High Court Judges in service, should be available to them even after retirement.

Conditions of serw'ce of High Court Judges in other respects to be equalled to those of Secretary to Government of India 10.36. Our eighth and last recommendation regarding High Court Judges is as fol1ows:--

With regard to the conditions of service of a Judge of a High Court, for which no express provision has been made in the High Court Judges (Conditions of Services) Act, 1954, it has been provided' that "such conditions shall be, and shall, from the commencement of the Constitution. be deemed to have been, determined by the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat of the High Court is situated." In our view, it would be more appropriate to

-1 High Court Judges Rules (1956), rule 2 and proviso thereto.

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equate the High Court Judges with the Secretary to the Government of India, rather than with the Secretary to the Government of the State in this matter. Unfortunately, in regard to the Judges of the Delhi High Court, they seem to be equated by the relevant rules 'with the person holding the rank of Joint Secretary in the Government of India. That, we think, should be suitably changed.

Recommendation regarding Supreme Court Judge9--increase in pension 10.37. Now, in regard to the Judges of the Supreme Court, we would like to make the following recommendations:--

First, we recommend that Judges of the Supreme Court, who have rendered 8 years of service or more in that Court should, on retirement by superannuation, be entitled to a pension equal to half their salary.

Medical aid after retirement to Supreme Court Judges 10.38. Secondly, we recommend that medical attendance and other medical beneﬁts should be available to retired Supreme Court Judges as they are available during their tenure of service.

Conveyance allowance to Supreme Court Judges 10.39. Thirdly, we recommend that Supreme Court Judges should be given a conveyance allowance of Rs. 300 per month.

Pension of Supreme Court Chief Justice 10.40. Fourthly, in regard to the Chief Justice of India, we recom- mend that if he functions as such for three years or more, he should, on retirement on superannuation, get a pension equal to half his salary as Chief Justice. If he works as Chief Justice for a period less than three years, the amount of pension (on such retirement) should be proportionately determined. In no case should the pension of a retiring Chief Justice be less than the maximum pension of a High Court Judge.

Leave travel concession to be allowed every year to Supreme Court Judges 10.41. Our ﬁfth recommendation relates to the Supreme Court Judges Travelling Allowance Rules, 1959. It appears that recently' a rule' has been added to these rules, whereunder travel concession is 1~ Rule 6A, Supreme Court Judges Travelling Allowance Rules, 1959, inserted. 1972. (Min. of Law & Justice, Notiﬁcation No. 1/7/72. Jun dated 28-2-1972).

2- See Appendix.

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allowed to every Supreme Court Judge and members of his family for travel to his permanent residence in his home state.

We recommend that this concession should be available every year, instead of every two years as at present. Incidentally, we note with satisr"aetii:n that on retirement Supreme Court Judges are now entitled to T.A., under a recent amendment made in the relevant rules'.

No deeds:-ztisg.-it 'to be made in allowing rail fare for purposes leave travel concession l0.42. We now come to our last recommendation relating to Supreme Ccurt Judges. It pertains to the rule relating to travel con- session, to which we have referred2----rule 6A of the Supreme Court .-':-:?g::s T./1.. Rules. 1959, concerning travel by a Judge etc. to his p-;-iinarient residence in his home State during his leave. The rule provides that for this purpose, rule 6 of the Supreme Court Judges Rules, 1959, read with the rules applicable in this behalf to a Member of the Indian Administrative Service holding the rank of Secretary to the Government of India, shall be applicable. Under the rules appli- i'['.l'3l€ to the Indian Administrative Service, there is a deduction for r::.Il fare while calculating the amount of the leave travel concession. Tliis deduction, in our view. should not apply to Judges of the Suorerne Court and the members of their family. Our sixth and last recoin aenclzrtiun. 1l'.erefore, is that rule 6A, referred to above (which was iris-_:rt-ed ir- 1972'). should be amended, so as to carry out the above '1'?=:cCt.

Recommendations should receive early consideration l0.43. As we have repeatedly pointed out during the course of our discussion in this Chapter, we have given anxious consideration to this problem and very carefully weighed the pros and cons. We have ultimately come to the conclusion that it is absolutely essential that the recommendations which we are making, and which, we think, on the whole. are modest and moderate. should receive early and favourable consideration from the Union Government.

Contended Judiciary essential for Rule of Law 10.44. We wish to emphasise that a contended Judiciary satisﬁed with the terms and conditions of service and at peace with itself, can be a source of incalculable signiﬁcance for sustaining the Rule of Law

1. Rule 6(3) , Supreme Court Judges Travelling Allowance Rules, 1959.

2. Para 10-41, sualra.

L/P(D)194MofLJ&CA---9 124 in a true democratic manner, and helping Indian democracy in its.

march towards the ideal set before it by our Constitution.

In this connection, it is pertinent to recall what Justice Holmes said about the ambiguity of words. Holmes said:' "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used. Lamar V. United States."

In particular, when words are used in socio-economic legislation, they sometimes appear to be ambiguous vehicles of thoughts or ideas. On such occasions, blind reliance on the dictionary of a mechanical application of the rules of grammer may not help. What will assist in the judicial process of discovering the true and full meaning of the words is the vision of the Judge and his awareness of what Justice Holmes described, "as the major inarticulate premises". Thus, when socio-economic welfare legislation is placed on the Statute Book, it is the judicial interpretation which makes much legislation meaningful. and thereby facilitates its easy and effective implementation. We feel conﬁdent that if the function of the judiciary of considering the vali- dity of legislative or executive actions and of interpreting the true intention of legislative enactments is considered in this perspective, all shades of opinion will readily accept the modest and the moderate recommendations which we have made in this Chapter.

Conclusion 10.45. Before we part with this topic, we may point out that we have made rough calculations as to the additional expenditure which Government may have to incur if all the recommendations made in this Chapter are accepted; and we have found that the extent of the additional expenditure is not likely to be unduly heavy. In this con- nection, we would also like to refer to the fact that, consistently with the tradition of judicial behaviour, our High Court Judges have shown- dignity, restraint and decorum and have not publicly articulated their dis-satisfaction with the terms and conditions of their service, nor have they, either individually or collectively, made any representation in that behalf. In our view, that is all the greater reason why the Union Government should, without delay, take into account the prevailing dissatisfaction in the minds of the Judges and accept the recommenda- tions which we have made in this Chapter after deep, careful and anxious consideration.

I. Towne V. Eiamr, (1917) 245 U.S. 247; 60 L. Ed. 372, 276.

2. Lamar v. U.8., 240 U.S. 60, 65; 60 L. Ed. 526, 528, 36 Sup. 0C5. Rep. 255.

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SUMMARY OF RECOMMENDATIONS AND CONCLUSIONS

1. Article 134(l)(c) of the Constitution should be amended,' so as to restrict criminal appeals to the Supreme Court by certiﬁcate to cases where the certiﬁcate by the High Court is to the eﬂect that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court.

2. No amendment is recommended in respect of appeals to the Supreme Court by special leave under article 136 of the Constitution.'

3. No change is recommended as regards the procedure in respect of writ petitions before the Supreme Court in respect of the trial of disputed questions of fact or the issue of ad-interim orders in such petitions.'

4. The Minister of Law a11d Justice may request the Chief Justice of India to suggest to the High Court that framing of suitable rules in respect of petitions under article 226 of the Constitution, as regards the issue of ad-interim orders' in such petitions.

5. No amendments are recommended as regards the trial of dis- puted questions of fact5 in writ petitions before the High Court.

6. In regard to taxation matters, in place of reference to the High Court by the Income Tax Appellate Tribunal, an appeal on a substan- tial question of law should be substituted. From the decisions of the High Court on such appeal, an appeal should lie to the Supreme Court only where the High Court certiﬁes that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court.'

7. A general recommendation is made with reference to industrial relations,' as fo1lows:----

The Minister of Law and Justice should suggest to the Union Minister of Labour to take such action as he may deem ﬁt and necessary, in consultation with the State Governments, National Trade Unions, and bodies of employers, to create a machinery which would encourage and strengthen collec- tive bargaining, will remove political pulls and pressures in . Chapter 3.

. Chapter 3.

. Chapter 4.

. Chapter 5.

. Chapter 6.

. Chapter 7, Pan 7-22 and 7-23.

~lG>U'VrF<'4Dl\')r-I 126 the functioning of trade unions, and will persuade both the trade unions, and the bodies of employers, not to lean on adjudication. Collective bargaining should ﬁnd a pride of place in the settlement of collective disputes: failing that, conciééation or arbitration should step in, and adjudication should come in, if at all, only last. That objective, it is hoped, will be borne in mind when the Union Labour Minister formulates his proposals for a comprehensive Bill to regulate industrial relations.

It is high time that the machinery for the settlement of industrial disputes was so devised that the dockets of the High Courts and the Supreme Court are not burdened with too many industrial matters.

8. Creation of special Service Courts for the trial of service' matters is not favoured.

9. Creation of Zonal Courts of appeal is not favoured?

10- Conditions of service of High Court Judges and Supreme Court Judges should be improved." In this connection, detailed recom- mendations are made as follows:

(1) (2) (3) (4)

HIGH COURT JUDGES The age of retirement of High Court Judges should be raised from 62 to 65 years.

Judges of the High Courts should be provided with a free unfurnished house, or, in lieu thereof, a suitable amount of house-rent allowance. The option should be left to the Judges. -

in this matter. It may be provided that, in regard to High Courts situated in cities notiﬁed as "A" Class for the purpose of the general rules in force for the drawal of house rent allowance, the house rent should be Rs. 500 per month, and in regard to other cities, it should be Rs. 350 per month.

A car allowance of Rs. 300 per month should be given to Judges of the High Courts.

In regard to pensionary beneﬁts, a broad rule is recommend- ed that High Court Judges who have rendered ten years of service or more should, on retirement by superannuation, get by way of pension half their monthly salary.

1. Chapter 8.

2. Chapter 9.

3. Chapter 10.

127

If a High Court Judge retires otherwise than by superannuation, after completing ten years of service or more, he should be entitled to a pension of Rs. 1,000 per month. Similarly, if a High Court Judge retires (otherwise than by superannuation) after completing less than ten years of service, he should be entitled to proportionate pension not exceeding Rs. 500 per month. (the amount will be determined proportionately ac- cording to the length of service, subject to the maximum of Rs. 500 per month).

(5) If a sitting High Court Judge dies, his widow should receive a (6) monthly pension of Rs. 500 or of an amount equal to half the pension to which the Judge would have been entitled, if he had retired on the date of his death, whichever is higher. This pension should be paid to the widow during her life- time.

In regard to the Chief Justice of a High Court retiring on superannuation, the recommendation is that if a Judge func- tions as Chief Justice for ﬁve years or more, he should get, as his pension, half his salary as Chief Justice. If he func- tions as Chief Justice for less than ﬁve years, his pension should be proportionately determined.

In no case should he get less than the maximum pension of a (7) (8) (1) (2) (3) puisne Judge of the High Court.

Free medical attendance and other. medical beneﬁts, available to the High Court Judges 111 service, should be available to them even after retirement.

With regard to the conditions of service of a Judge of a High Court, for which no express provisions has been made in the High Court (Conditions of Service) Act, 1954, they should be equated to a Secretary to the Central Government.

SUPREME COURT JUDGES Judges of the Supreme Court, who have rendered 8 years of service or more in that Court should, on retirement by superannuation, be entitled to a pension equal to half their salary.

Medical attendance and other medical beneﬁts should be available to retired Supreme Court Judges as they are avail- able during their tenure of service.

Supreme Court Judges should be given car allowance of Rs. 300 per month.

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(4) In regard to the Chief Justice of India, the recommendation is that, if he functions as such for three years or more, he should, on retirement on superannuation, get a pension equal to half his salary as Chief Justice. If he works as Chief Justice for a period less than three years, the amount of pen- sion (on such retirement) should be proportionately deter- mined.

In no case should he get less than the maximum pension of a Judge of the Supreme Court.

(5) Leave travel concession should be available to Supreme Court Judges (and their family) every year, instead of every two years as at present.

(6) In regard to railway fare, no deductions should be made while 'calculating the leave travel concession, permissible to them.

We desire to place on record our warm appreciation of the valu- able assistance we have received from Mr. Bakshi, Member- Secretary of the Commission, in the preparation of this Report. At all stages of the study of this problem, Mr. Bakshi took an active part in our deliberations.

P. B. GAJENDRAGADKAR . --Cha.irman P. K. TRIPATHI ----Member S. S. DHAVAN ----Member

8. P. SEN-VARMA --Membe;-

P M. BAKSHI --Member-Secretary Dated the New Delhi, the 8th January, 1974 ,APPE,\'1)IX 1 APPENDIX 2 APPENDIX 3 APPENDIX 4 APPENDIX 5 Ari-mmlx 6 APPENDICES 129 Rules of some High Courts as to interim stay.

Pre-1950 position as to write.

Proposed amendment in the In-

come Tax Act 1961.

Tables showing answers to ques-

tion 8 of the Law Commission Questionnaire from State Gover-

ments, etc. Rules as to disciplinary proceeds ings against Government! servants in some States.

Extract of Supreme Court J udges T.. A. Rules.

APPENDIX I RULES OF SOME HIGH COURTS AS TO AD INTERIM STAY Andhra Pradesh' "5. Whenever a petition is presented accompanied by an application for stay or suspension of orders, notiﬁcations and the like of the Government, or for other directions, or wherever stay of collection of any tax, fees, or dues is sought, the copies of the petition, application and the accompanying aﬂidavit shall be served on the Government Pleader or Standing Counsel concerned, and the said petitions and the applications shall not be accepted in the Registry unless they contain- an endorsement of service signed by the Government Pleader or Stand- ing Counsel or someone authorised by him."

Calcutta3 "25. Unless otherwise ordered by the Court, all applications for a rule nisi shall be made ex parte in the ﬁrst instance, before the Court, on such day or days and at such time or times as is ﬁxed by the Court.

"Provided that an application for a rule nisi involving revenue law, shall not be moved, unless the Judge otherwise directs, without serving a fortyeight hours' prior notice along with a copy of the appli- cation under Article 226 of the Constitution proposed to be moved on the Administrative Head of the department concerned with the ad- ministration of the revenue law."

"26. The Court, hearing such application, may issue a rule nisi or summarily reject the application or make such order thereupon as it thinks ﬁt. A Judge issuing a rule nisi may make it returnable before a Division Bench. A rule nisi shall be drawn up as far as may be in the model form set out in Annexure I.

1. Andhra Pradesh High Court rules regulating proceedings under article 226 of the construction.

2. Notiﬁcation by High Court of Andhra Pradesh Roe. No. 159, 170, 311 Supplemen- tary to A.P. Gazette Part II, dated 21 May, 1970.

3. Calcutta High Court Rules relating to petitions under article 226 of the Construc- tion (1971) (with the amendments made on 9th June, 1973, by High Court Notiﬁcation N0. 6863-G, incorporated).

130 131

Punjab' "29. Subject to the cases covered by rule 3 below, all Civil Writ Peti- tions shall be brought to a hearing of notice of motion to the respon- dents. "Notice of motion with a complete copy of the petition (includ- ing its annexures) for each respondent shall be presented to the Deputy Registrar of the Court at the time of ﬁling the writ petition. The date on which the writ petition is to be heard by the Motion Bench shall be entered by the Deputy Registrar in the notice of motion and its copies and also noted on the writ petition. The notice of motion in form C.W.P. 4 shall then be endorsed by the Deputy Registrar under his signature and date. The petitioner or his counsel may thereupon serve the notice on the opposite party either in person or by registered post acknowledgement due and produce before the Deputy Registrar affidavit proof of Service of the notice on the respondent in the prescribed form C.W.P. 5 at least two working days before the date of the motion hearing of the petition. The oﬂice shall then record a note on the opening sheet indicating that the notice of motion has been served by the counsel of the petitioner on the respondent for the date on which the case is being placed before the Court for motion hear- mg."

nun'

1. Punjab High Couit, Rule 29 of the Amended w tit Rules APPENDIX 2 PRE-1950 POSITION AS TO WRITS The position immediately before the Constitution, in respect of each of the writs, or directions in the nature of those writs, was as foIlows:~

(a)

(b) Habeas corpus~Every High Court could issue a direction of the nature of a habeas corpus' under section 491 of the Code of Criminal Procedure, 1898. The jurisdiction was statutory". After the amendment made in 1923, it was not conﬁned to the ordinary original limits of the High Court's jurisdiction. Any High Court could issue the direction within the limits of its "appellate criminal jurisdiction."

Certiorari--Each of the three High Courts of Calcutta, Madras and Bombay could issue this writ within the limits of its ordinary original civil jurisdiction."-".

In the case of cerliorari, it is to be noted that it could not issue in (C)

(d) any matter concerning the revenue or its collection.

Prohibition----Each of the three High Courts of Calcutta, Madras and Bombay had authority to issue this writ within the limits of its ordinary original civil jurisdiction.'-5.

Mandamus----The three High Courts could issue an order in the nature of this writ within the limits of their ordinary original civil jurisdiction. The jurisdiction was deﬁned by section 454to 50 of the Speciﬁc Relief Act, 1877, which was then in force.'

3. Chapter 37, Cr. P.G. , 1898.

3. C.P. MA THEN v. .D.M. Tribrz-ndrum I7, A.I.R. 1939 RC. 213.

9. I ndumati V. Bengal Court of Wards, 42 C.W.N. 230.

'. I n Re Ramjidas, I.L.R. 1935 Cal. 1011.

5. In Re Zmtionavl Carbon 00., 38 C. W.N. 729; A.I.R. 1934 Cal. 725, 727, 728 ". Annie Bescmt v. Advocate General, 23 C. W.N. 986; A.I.R. 1919.

7. Imlumali V. Bengal. Court of Wards, 42 C.W.N. 230.

3. In Re Ramjidas, I.L.R. 1935 Cal. 1011.

'. Alcock Ashdown 4: Co. v. Chief Controlling Revenue Authority, 50 Indian Appeals 227. A.I.R. 1923 RC. 138.

132 133

(e) Quo warranto--Each of the three High Courts of Calcutta, Madras and Bombay had jurisdiction to issue this writ with- in the limits of its ordinary original civil jurisdiction. The jurisdiction has been assumed' or discussed"-3 in several cases.

The doubts that were thrown on this subject by one of the Privy Council decisions' were mainly in relation to exercise of the jurisdic- tion where the subject-matter of the dispute arose outside the Presi- dency town. The discussion in the High Court of Calcutta relating to the quo-warranto case5 gives history of the jurisdiction. Of course, the point was kept open by the Privy Council on appeal, because the Privy Council was of the opinion that the jurisdiction could not be exercised outside the Presidency town."

1. Armzrendra, v. Narendra, 56 C.W-N. 449.

'. In Re Ba/nwari Lal, 48 C.W.N. 766.

3. 1.Q. Ma,ster's Union v. Dutt., A.I.R. 1951, Cal. 570, 573.

P C 'l.6.ggots of Gambandlw V. Zemindar of Parlcamedi, (1943) 70 I.A. 129; A.I.R. 1943 '. In re Banwari Ra,2'., 48 C.W-N. 766 (on appeal, A.I.R. 1947 RC. 90).

6. For history of all writs, see S.R. Des J. in 48 C.W.N. 766, 795, 796, 797, Para 35, 37, 36 and 40 respectively.

APPENDIX 3 PROPOSED' AMENDMENTS" IN THE INCOME-TAX ACT, 1961 Section 255 (7) [New] ' The Appellate Tribunal shall, at the close of the case, pronounce a judgment. and the provisions of the Code of Civil Procedure, 1908. relating to judgments shall. so far as may be, apply in the case of the Appellate Tribunal as they apply in the case of a district court.

[If the procedure of appeal is to be substituted in place of reference, the principal sections3 of the Income-tax Act, 1961, may berevised' as follows:-----] Re-draft of certain sections of Income-tax Act Re-draft section 256 Revised Section 256----"256(l). The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under section 254, by a memorandum of appeal in the prescribed form, accompanied where the ap- peal is made by the assessee by a fee of one hundred and twenty-ﬁve rupees, appeal to the High Court on a substantial question of law arising out of such order ...................... ..

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-

(2) If. on an appeal under sub-section (1) the High Court is of the opinion that the facts stated in the order under appeal are not suﬁicient for the disposal of the appeal, the High Court may require the Appellate Tribunal to state the facts, and, on receipt of any such requisition, the Appellate Tribunal shall state the facts accordingly.

"(3) Where, before the hearing of the appeal by the High Court, the assessee withdraws his appeal, the fee paid shall be re-

funded."

1. There are very rough drafts.

2. Corresponding provisions, if any, in other laws relating to direct taxes should be amended on similar lines.

3. There may be minor changes needed in other sections of the Income-tax Act also.

4. Similar changes could be made in other laws dealing with direct taxes and provid-

ing for reference to the High Court.

134 135

Section 257 to be omitted.

Section 258 to be omitted.

Re-draft of section 259 '-59. ill) When L'.1l_\1 appeal has been preferred to the High Court under section 256. it shall be heard by a Bench of not less titan two judges of the High Court, and shall be decided in accordance with the opinion of such judges or of the majority, if any, of such judges.

(23 Where there is no such majority, the judges shall state the point of law upon which they diﬁer, and the case shall then he heard upon that point only by one or more of the other Eudges of the High Court, and such point shall be decided according to the opinion of the majority of the judges who have heard the case, including those who first heard it."

Re--t3raft of section 260 "260. (1) The High Court. or the Supreme Court, upon hearing any such appeal as is provided for in section 256 shall decide the questions of law raised therein, and shall deliver its judg- ment thereon containing the grounds on which such decision is founded. and a copy of the judgment shall be sent under the seal of the Court and the signature of the Registrar to the Appellate Tribunal, which shall pass such orders as are necessary to dispose of the case conformably to such judg-

ment.

(2) The costs of any such appeal to the High Court, which shall also include the fee for the appeal', shall be in the discretion of the High Court."

[Section 260A (New)] "260A. The provisions of the Code of Civil Procedure, 1908, re- lating to appeals to the High Court shall, so far as may be. and subject to the provisions of sections 258, 259 and 260, apply in the case of appeals to the High Court under section 256, as they apply in the case of appeals from decrease of a civil court."

1. Itis but fair that the costs shouid include the appeal fee also.

136

Re-draft of section 261 "261. An appeal shall lie to the Supreme Court from any judg- ment of the High Court delivered on an appeal under section 256, if the High Court certiﬁes that the case involves a sub- stantial question of law of general importance which needs to be decided by the Supreme Court."

[Under the present section', an appeal shall lie to the Supreme Court from any judgment of the High Court, delivered on a reference made under section 256, "in any case which the High Court certiﬁes to be a ﬁt one for appeal to the High Court."]

1. Section 261, I.T. Act, 1961.

137

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v NHQZmEm< APPEN DIX 5 RLEEZS AS; TO DISCIPLINARY PROCEEDINGS AGAINST C11,"! EE{l'~{i\llENT SERVANTS IN SOME STATES ( 1 ) Kerala The Kerals Civil Seserices (Disciplinary Proceedings Tribunal) Rules, 1960 These have c-311;; into force on 1-1-1960. The rules apply to all officers under the rule-making control of the State Government other than those referred to in article 314 of the Constitution of India.

The Tribunal consists a judicial otiicer who has worked or is eligible to be appointed as District and Sessions Judge. Appointment to the Tribunal is made by the Government. The Government may refer to the Tribunal any case or class of cases, which they consider should be dealt with by the Tribunal.

If on a complaint or other information received and after such investigation. if any, as may be deemed necessary, the disciplinary authority or the appointing authority or any oﬂicer or authority em- ployed by the Government in this behalf is satisﬁed that there is a prima facie case for taking action against an oﬂicer before the Tribu- nal. the authority shall forward to Government all the records of the case. The Government may, after examining such records and after making such consultations as may be deemed necessary decide whether the case shall be proceeded with and if so whether it shall be tried by the Tribunal. The Departmental authorities may so send to the Government the records of cases other than of corruption which they think ﬁt to be tried by the Tribunal and the Government may decide whether they shall be tried by the Tribunal or not. If the Government decide that the case shall be tried by the Tribunal they shall send the records to the Tribunal. When the Tribunal is seized of the case all departments of Government shall assist the Tribunal in the production of witnesses, in securing the necessary documents, and in such other ways as the Tribunal may desire.

The proceedings of the Tribunal are held in camera and after all the evidence and the arguments have been heard the Tribunal records its ﬁndings in respect of each charge and in case the accused Govern- ment servant is held guilty of any charge, it recommends to Govern- ment the punishment to be imposed. .

138 139

(2) Orissa The Disciplinary Proceedings (Administrative Tribunal) Rules, 1951

(a) These have been framed under the proviso to article 309 of the Constitution. They apply to all Government servants under the rule making control of the Orissa Government.

(b) The Tribunal shall consist of 3 members, one of whom shall be a member of the Board of Revenue, another a judicial oﬂicer who is or was of the status of a District Judge and the third, the head of a Department.

((1) Cases relating to Government servants drawing a monthly salary of Rs. 150 and above may be referred to the Tribunal in respect of matters involving corruption, 'failure to discharge duties properly.

irremediable general ineﬂicrency and personal immorality.

(e) In conducting enquiries the Tribunal shall be guided by rules of equity and natural justice and shall not be bound by formal rules relating to procedure and evidence.

(f) The Tribunal is also required to make recommendations about the punishment to be awarded including compulsory retirement, with or without pension or gratuity.

(3) Tamil Nadu Madras Civil Services (Disciplinary Proceeding Tribunal) Rules, 1948

(a) These rules have been made under the powers conferred by section 241(1) (b) and (2) (b) of the Government of India Act, 1935.

(b) The Tribunal shall consist of two judicial oﬂicers of the status of the District and Sessions Judge.

(c) Cases relating to Government servants drawing Rs. 150 per mensem and above in respect of matters involving corruption are particularly to be referred to this Tribunal.

(d) Government can also refer any particular case or class of cases which in its opinion should be dealth with by the Tribunal.

(e) The record of investigation will be sent to the Government and the Government will then decide in consultation with the head of the Department whether the case should be sent up before the Tr1bu--

nal.

140

(f) The Police will help the Tribunal in securing documents, in producing witnesses and in such other ways as the Tribunal may desire.

(g) Counsels will be allowed on both sides.

(h) The Tribunal may co-opt an assessor who should be an oﬂicer of the Department to which the Government servant charged belongs.

(j) It appears that the Tribunal should suggest the penalty to be imposed also in cases where the charges are held proved, but this is not quite clear in the rules.

APPENDIX 6 EXTRACT OF SUPREME COURT JUDGES' T.A. RULES. 1959, AS AIVIENDED "6A. Notwithstanding anything contained in rule 6, a Judge of the Supreme Court shall be entitled to travel concession for himself and the members of his family for visiting his permanent residence in his home State during his leave, once in a block of two years, in accordance with rule 6 of the Supreme Court Judges Rules, 1959, read with rules applicable in this behalf to a Member of the Indian Administrative Service holding the rank of Secretary to the Government of India.

For this purpose, leave shall include vacation:

Provided that the Judge and his wife will have the option to travel by air subject to the condition that reimbursement of air fare will be permitted after deducting the rail fares which he would have been liable to pay under the Leave Travel Con- cession applicable to a Member of' the Indian Administrative Seglvice holding the rank of Secretary to the Government of In 'a."

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