THE ECONOMIC WEEKLY SPECIAL NUMBER JULY 1959

The Commission Report K C Sen

The Commission undertook and have performed a stupendous task. Its Fourteenth Report is in two bulky volumes running to 1282 pages. It issued a questionnaire consisting of 193 questions, examined about 500 witnesses, has considered all aspects of the present judicial administration in India, from the functioning of the Supreme to that of panchayats, considered such general questions as the separation of judicial and functions, language, and legal aid, and specifically examined and made recommendations regarding the judicial administration. in each of the States of India. It has made a large number of recommendations and given its considered opinions on numerous questions that arose in the course of its deliberations. The Commission has considered the pros and cons of every question with care and detachment, incorporated its views in lucid and unambiguous language, and produced one of the most important Reports that have been made since Independence,

THE existing legal system in India effective and substantial". This was a persistent demand from the is the product of a number of resolution was accepted by the Gov­ High in some of the States Law Commissions set up by the ernment, which accordingly appoint­ for more judicial personnel and British Government, In the last ed a Law Commission consisting of more courts, yet 'the administra­ century four Law Commissions were Shri M C Setalvad, Attorney-Gene­ tions concerned failed to realise appointed, the first being constituted ral of India, as the Chairman and their responsibility in the matter." in 1834 under the chairmanship of ten other Members. The terms of Even before the transfer of power Lord Macaulay, then Law Member, reference were, firstly, to review the attention of the Central Govern­ and the fourth being constituted in the system of judicial administra­ ment was drawn to the heav 1879. The third Law Commission, tion and suggest ways and means arrears in civil courts by the presided over by Lord Romilly, re­ for improving it and making it Rankin Committee as far back as commended the revision of the en­ speedy and less expensive, and, 1925; but no substantial steps ap­ acted law "at Intervals of only a secondly, to examine the Central pear to have been taken in this few years" and the provision of Acts and recommend their revision, direction. Again, the High Court "such new rules of law as might be amendment and co-ordination. The Arrears Committee considered this required by the rise of new interests Commission was directed to func­ question in 1949, but its recommen­ and new circumstances in the pro­ tion in two sections corresponding dations have been very inadequate­ gress of society". Acharya, in his to these two terms of reference. It ly implemented. Lest a similar fate Tagore Law Lectures in 1912, recom­ was appointed, in the first instance, should overtake the present Report, mended the appointment of a Per­ up to the end of the year 1956, but the Commission has recommended manent Law Commission or a the period was extended from time the appointment of a Special Officer Ministry of . In 1921 the to time up to September, 1958, for the consideration of its recom­ Law Revision Committee when the present Report was signed mendations by the State Govern­ and in 1923 the Civil Justice Com­ and submitted to the Government of ments with a view to their speedy mittee were appointed. Other Com­ India. implementation. mittees were appointed both by the Vast Volume of Arrears Central and the Provincial Govern­ The question of arrears is all- ments from time to time. The latest At the end of its Report the Com­ pervading in this Report, As re­ of these Committees were the West mission has observed: "The picture gards the state of the Supreme Bengal Committee and the Uttar that has emerged from the fore­ Court's file, the number of pending Pradesh Committee set up in 1949 going chapters is not encouraging. civil appeals increased from 131 in and 1950 respectively. The state of affairs which it dis­ 1950 to 837 in 1956, the correspond­ closes shows in several respects ing numbers of criminal appeals Performed a Stupendous Task neglect and disregard of the pri­ being 16 in 1950 and 241 in 1956 Since Independence suggestions mary functions of the State which and those of petitions under Art. have been made in and outside Par­ is the administration of justice." 32 of the (for enforce­ liament for the appointment of a One question which has cast its dark ment of fundamental rights) being Law Commission. In 1964 an offi­ shadow throughout the Com­ 452 and 428 respectively. A number cial resolution was moved in the mission's deliberations is the vast of such matters had been pending for appointment of such volume of arrears, not only in civil for 3, 4 or more years. The Com­ a Commission "to recommend revi­ but also in criminal matters. The mission believes that despite the sion and modernisation of , altered conditions in the country recent increase (since January 1957) criminal, civil and revenue, substan­ after Independence has led to a in the strength of the Court from tive, procedural or otherwise large volume of new and 8 to 11 it may not be able to to reduce the quantum of case-law- in consequence an enormous in­ clear the existing volume of arrears. and to resolve the conflicts in the crease in the load of work carried A large number of appeals are being filed against decisions in labour decisions of the High Courts on by the courts, the increase being matters, particularly since the abo­ many taints with a view to realize so great that no administration lition of the labour appellate tribu that justice is simple, speedy, cheap. could have failed to notice it There 917 SPECIAL NUMBER JULY 1959 THE ECONOMIC WEEKLY

nal. The Commission has recom­ (4) The strength of each High Institutions, but intensive efforts mended that in such cases parties Court to be brought up to the level are necessary to rid the files should be enabled to file appeals required for dealing with the normal "the incubus of old suits, which either to the High Court or to a institutions of cases, to be revised has assumed alarming proportion) special constituted for the every two or three years; in several States.'' purpose. (5) Avoidance of delay in filling The district judges' Courts have Acute Problem for High Courts vacancies and of deputation of been unable to keep pace even with Judges for non-judicial work. the current institutions in most As regards the High Courts, the It has been noticed that in some States, which suggests that the problem of arrears exists in a very cases the Chief , conscious existing strength of these courts is accentuated form in certain High of the growing accumulation of inadequate. The Commission is of Courts. There has been a large work, have tried to obtain addi­ the view that it is necessary to increase of work during the period tional judges for their Courts, but establish in most of the States tem- following the Constitution, owing their efforts have been defeated "by porary additional courts for suet largely to two causes: (1) the eco­ a baffling procedure." The Com­ periods of time as may be neces- nomic and industrial development of mission has recommended the sary. Recent legislation has con­ the country and (2) expansion of growth of a convention that if the tributed to the growing volume of the courts' special under Chief Justice of a State makes a work, e g, the Employees State a variety of enactments. Other request for the appointment of addi­ Insurance Act, Displaced Persons factors are the fundamental rights tional judges and if the need for (Compensation & Rehabilitation) conferred by the Constitution and such additional judges is accepted Act, the Administration of Evacuee the complexity of recent legislation by the , the Property Act, the Land Reforms in certain fields. There have been Chief Justices request should be Acts and the Hindu Marriage Act, a large number of writ applications acceded to, and applications questioning the The inadequacy of the strength constitutionality of enactments and A committee, called the High of the subordinate has rules framed thereunder. The gra­ Court Arrears Committee, was set been pointed out by the High Courts vity of the situation appears to have up in 1949 under the Chairmanship from time to time in their admi­ been appreciated only recently, and of the present Chief Justice of nistration reports, particularly by the strength of the High Courts has India. It recommended, among the High Courts of the Madhya been increased by the addition of other things, that the High Courts Pradesh, Uttar Pradesh, West Ben­ partly permanent and partly addi­ increase their working days to 200 gal and Orissa. The High Courts tional Judges. As to the arrears, per year. The matter was taken have from time to time made repre­ the Commission has laid down cer­ up at two conferences of Chief sentations to the Government ask­ tain time limits for the disposal of Ministers in 1957 and at the Law ing for an increase in the cadre of different categories of cases—for Ministers' conference in the same the subordinate judiciary. The first appeals two years, for second year. As a result many of the High U P Judicial Reforms Committee appeals and letters patent appeals Courts have reduced the length of specifically dealt with this ques­ one year and for writs civil revision their vacations and holidays so as tions at length, saying that "it was petitions and criminal matters six to have 210 working days a year. imperatively necessary, before the months from the date of institution Since 1956 35 judges have been entire administration of justice col­ and has attempted to recommend added to the various High Courts, lapses because of the tremendous effective measures for dealing with so that the pace of clearing arrears weight of arrears," to increase the the arrears so as to bring the pend­ has been accelerated. Still the num­ cadre of judicial officers considera­ ing file of each Court to normal ber of pending cases increased from bly. The High Court of Allahabad proportions within the shortest 1,70,000 at the end of 1956 to recently emphasised this need and possible time. Among such mea­ 1,78.000 at the end of 1958. But recommended the addition of about sures may be mentioned the follow­ out of the 1,70,000 cases pending at 85 officers to prevent the arrears in­ ing: the end of 1956 only 64,500 cases creasing. Similar observations have still remained pending by the end been made by the Chief Justice of (1) Appointment of additional of 1958. West Bengal. The Commission has judges for the specific purpose of found that on the one hand, there dealing with arrears; In Lower Courts has been a gross neglect by the (2) Raising the pecuniary limit As regards the munsifs courts, State administration of their duty of the appellate jurisdiction of dis­ the subordinate judges' courts, the in establishing the necessary num­ trict judges to Rs 10.000 in all the small cause courts and criminal ber of courts and on the other, a States; and consequent transfer of courts, the Commission has given complete failure on the part of the appeals to district courts from the its estimates of the average dura­ State to carry out its obligations to High Courts; tion which cases of different provide trained and proper judicial (3) Merit to be the sole criterion descriptions should take in their personnel for presiding over the in the choice of Judges to be ap­ , so that cases taking longer courts. The States in question can­ pointed; the creation of an ad hoc time would be classed as arrears, not even urge financial stringency body presided over by the Chief although different High Courts in­ as an excuse, for they have been Justice of India to draw up a panel terpret the expression differently. making substantial gains out of of names of suitable persons from On the whole the strength of the the revenue earned fey them by way the as well as the service in judicial officers may be considered of court fees. The Commission has each State; adequate to cope with the current suggested that the High Court may 918 THE ECONOMIC WEEKLY SPECIAL NUMBER JULY 1959

be generally empowered by the (4) Article 235 of the Constitu­ than as a of the Supreme State Governments to create addi­ tion should be amended so as to Court after retirement under the tional courts subject to certain vest in the High Court the power Union or the State, (3, that the re­ limits whenever they consider that of posting and promotion of district tiring age should be raised to 65 additional work justifies the crea­ judges, in the case of appointments to be tion of a new court. Severe Strictures made hereafter and (4) that the Decline in Standards The Commission has been con­ existing pensions, which are inade­ As regards personnel, the Com­ strained to make strong remarks quate, should be raised to Rs 2000 mission has found unmistakable regarding (1) several unsatisfactory per month (in the case of the Chief testimony that the standards appointments made to the High Justice) and Rs 1750 per month (in of the judicial officers have, Courts on political, regional or other the case of Puisue Judges) for 12 during recent years, sadly de­ grounds, with the result that the years of service. In the case of the clined, for a variety of reasons, e g, fittest men have not been appointed, Supreme Court also an increase of diversion of talent to profes­ and (2) the High Courts' prestige pensions has been recommended, sions other than law, appointment having been adversely affected by namely, Rs 3000 and Rs 2500 per (specially in the Southern States) ill-informed criticism of the judiciary month respectively for the Chief on communal or regional grounds, by responsible persons. The Com­ Justice and other Judges, it also inadequate remuneration in compa­ mission states, "We have visited being recommended that they should rison with the executive branches all the High Court centres and on be barred from practice or employ­ of the Government, difference of all hands we have heard bitter and ment under the Union or a State status between the judicial and the revealing criticism about the ap­ after retirement. executive officers. An experienced pointment made to High Court ju­ As regards the Supreme Court Chief Justice observed: "Vis-a-vis diciary during recent years....The also, "it is widely felt that com­ the district , the district almost universal chorus of com­ munal and regional considerations judge feels small, and is treated as ment is that the selections are un­ have prevailed in making the selec­ a person of little consequence". The satisfactory and that they have tion of the Judges", so that the best Commission has observed, "Those been induced by executive influence." talent among the Judges of the High who do strive to get into the judicial Such views have been regarded as Courts have not found their way to service after 3 to 5 years at the showing a well-founded and acute the Supreme Court. This, according Bar are disappointed persons who public dissatisfaction at these ap­ to the Commission, has prevented have failed to make a living in the pointments. The machinery provid­ the Supreme Court from being look­ profession and have no hopes of ed by the Constitution in article 217 ed upon by the Subordinate Court prospering in it". for the appointment of High Court and the public generally with that The Commission has made a num­ judges has been found faulty and respect and reverence to which it ber of recommendations for im­ open to abuse. Certain appoint­ is entitled. proving this state of affairs; some ments have been made in recent Prestige of Judges Lowered of them are given below: years against the recommendation of the Chief Justice. A Judge of a Under the Constitution our Su­ (1) There should be two classes High Court has stated: preme Court does not possess such of judicial officers, viz, district wide powers as are enjoyed by the judges and other officers of equiva­ "If the State Ministry (Minister Supreme Court of the U S A. A lent status, and subordinate judi­ in the State Government) continues comparison of Articles 21, 33, 31A ciary; to have a powerful voice in the and 31B of our Constitution with matter, in my opinion, in ten years' (2) Recruitment to the latter the Fifth amendment to the Ameri­ time or so. when the last of the can Constitution sufficiently shows class should be on the basis of a Judges appointed under the old sys­ competitive examination conducted this. Under Article 21 no person tem will have disappeared, the in­ shall be deprived of his life or per­ by the Public Service Commission, a dependence of the judiciary will High Court Judge having a prepon­ sonal liberty "except according to have disappeared, and the High procedure established by law"; derating voice being associated for Courts will be filled with Judges the viva voce test; the persons re­ similarly, S 31 begins, "No person who owe their appointments to po­ shall be deprived of his property cruited should be given intensive liticians," Truly a dismal prospect! training for six months to 1 year; save by authority of law'. The Amendment of Article 217 Fifth Amendment says that no per­ (3) An all-India Judicial Service son shall be deprived of his life, should be created who should man The Commission has suggested liberty or property "without the pro­ 40 per cent of the posts of the the amendment of article 217 of cess of law," The words "process higher judiciary in each State, the the Constitution so as to provide of law" do not occur in our Consti­ remaining 60 per cent being tilled that a Judge of a High Court should be appointed only on the recommen­ tution, but have been given such a in by promotion from the State Ju­ liberal interpretation by the Ameri­ dicial Service and by direct recruit­ dation of the Chief Justice of the State and with the concurrence of can Supreme Court as to en­ ment from the Bar. Officers of able it to invalidate laws which this Service should normally be al­ the Chief Justice of India. Other recommendations are: (1) that the may be found to offend against lotted to States other than their the 'spirit of the Constitution'. home States. They should be train­ Chief Justice of a High Court should be appointed with the concurrence By our First Amendment to ed for a period of two years. Their the Constitution, no law providing emoluments should be the same as of the Chief Justice of India, (2) that a Judge should be barred from for the acquisition by the State of those of the Indian Administrative any or of rights therein Service; practice and any employment other 919 SPECIAL NUMBER JULY 1969 THE ECONOMIC WEEKLY THE ECONOMIC WEEKLY SPECIAL NUMBER JULY 1959

"shall be deemed to be vold on the lature and the executive govern­ before it agreed that the Code ground that it is inconsistent with ment. of is a carefully de­ the rights conferred by any provi­ This is not a desirable state of vised enactment, the provisions of sion regarding fundamental rights." affairs It can be remedied, at which, if properly followed, are de­ The object of this amendment was least to some extent, by (a) select­ signed to expedite rather than delay to validate the acquisition of zamin- ing the most suitable persons for the disposal of cases. There is no daris and the abolition of the Per­ appointment, (b) leaving no scope doubt that in many cases delay is manent Settlement without inter­ for expectations in the minds of the attributable to numerous extraneous ference from the courts. Thus from Judges, before or after their retire­ and personal factors, like an ineffi­ the beginning the final arbiter of ment, of employment by the Union cient judiciary, insufficient number the citizens' rights, in spite of the or the State, (c) compensating them of judicial officers, incompetent and fundamental rights, has been Par­ by increased pensions and raising corrupt ministerial and process-serv­ liament, and the Courts are em- the retiring age of High Court ing agency, delaying tactics delibe­ powered merely to interpret and Judges to 65, (d) making the High rately adopted by parties and their give effect to the law enacted by Courts wholly responsible for judi­ , unmethodical arrangement the , which have in many cial administration of the States, of work by the presiding judge and enactments whittled down the fun (e) giving district judges the same heavy files of arrears. The Com­ damental rights. Since Independ status and scale of pay as district mission in their Chapters headed ence, again, a good deal of legisla­ and collectors, with the "Trial of Suits'' "Civil Appeals", tion has been "delegated legislation" status and pay of other members "Civil Appellate Procedure", "Civil enacted by the rule-making autho­ of the judiciary corresponding to Revisions" and "Execution of De­ rities, i e, the Union and the States, those of other members of the exe­ crees", have examined the proce­ and the courts have limited autho­ cutive, (f) resort to validating acts, dures relating to these matters and rity in this field. Referring to certain particularly with retrospective effect, made a large number of recommen­ passed by the State of for overriding judicial decisions only dations which, if adopted, would no Bihar, a Chief Justice of India was in cases of real and extreme neces­ doubt appreciably abbreviate de­ constrained to observe: "Legisla­ sity; and (g) abstention on the part lays. tion such as we have now before of the executive and members of Pre-trial Conference us is calculated to drain the vitality the legislature from criticism of the from the which our judiciary in public. Conciliation proceedings exist in Constitution so unmistakenly pro­ France, Japan and Norway, but not claims, and is to be hoped that the Complex in our country under the Code of democratic process in this country I have discussed only a few of Civil Procedures. Under such pro­ will not function along these lines." the numerous questions dealt with cedure, if a settlement is arrived at When, however, any enactment or by the Commission. The lay public between the parties that disposes of rule has been found by the Courts is not interested, or equally interest­ the case without the matter going to be ultra vires, the Government ed, in all the other questions discus­ to a civil court. In the United has not been slow to get a validat­ sed in its voluminous Report. It is States there is provision for a pre­ ing enactment often with retrospec­ mainly interested in the question of trial conference in the Rules of Civil tive effect, passed by the legislature. delay in the decision of cases (and Procedure for District Courts, action That the Government is aware that in execution proceedings) and in the thereunder being discretionary with the public have faith in the impar­ cost of litigation. A part of the the Court. The settlement of large tiality of Judges is shown by their first question has already been parts of the cases for trial by such appointment for enquiry into cases dealt with in considering the ques­ procedure has been claimed by Mr of firing and other important tion of arrears, regarding which the Arthur T. Vanderbilt, Chief Justice matters requiring careful and un­ recommendations of the Commis­ of the State of New Jersey, in his biased sifting of the ; but sion are eminently proper and sound. book "The Challenge of Law Re­ the Government has often been un­ There is, however, the question of form". The Evershed Committee in able to accept the findings in such the complex procedural law inherit­ England examined this procedure cases, thus in a way nullifying the ed by us from the pre-Independence but decided against it; and the Com- rationale of such enquiries by a. days, such law being largely model­ mission, too, has arrived at the High Court or Supreme Court Judge, led on English practice and inspired same conclusion regarding its ap­ The Commission has observed that by the principles of . It plicability to Indian conditions. Un­ it has become usual among politi­ has often been asserted that our der the present Code the trial Judge cians at the Centre and in the States, laws of civil and is not precluded from acting as a while paying lip-service to the ma­ are unnecessarily complicated and conciliator. It is open to him, at an jesty and dignity of the law, to de­ time-consuming. The provisions of appropriate stage, to make a sug­ cry the Judges as sitting in an the Civil Procedure Code are based gestion for, and to bring about, a "ivory tower" and failing to keep on the theory that there must a full compromise. A Judge, specially in pace with what the politicians think disclosure by each party of his case the mofussil, who tries to induce are progressive ideas of the times. to the other, that rival contentions parties to come to an amicable set­ Selection of persons by the executive must be reduced to clear issues and tlement, however, is apt to be mis­ as Judges on improper grounds has that there must be by understood as a shirker seeking a already been commented upon. the Court upon those Issues. "All short-cut in the disposal of his cases. These circumstances have combined responsible and experienced per­ There can be little doubt that the to lower the prestige of the Judges sons" who answered the Commis­ procedure is open to abuse, for if a in the eyes of the public, the legis­ sions questionnaire or gave evidence Judge appears to favour one of the 921 SPECIAL NUMBER JULY 1959 THE ECONOMIC WEEKLY

parties it may be considered expe­ and economic policies." This Com­ fact, but the splitting up of ques­ dient for the other party to com­ mittee reached the conclusion that tions of law and fact in this manner, promise his case. it was necessary to create a new when an appeal Is made to a com­ All the same, it seems desirable division of the High Court of Jus­ petent tribunal, would appear also to that at least in the courts of certain tice to be called the Administrative be otherwise an undesirable proce­ selected judges, the method of pre­ Division presided over by a High dure. trial conferences adopted in Ameri­ Court Judge. In November 1955 a Delegated Legislation Committee presided over by Sir ca should be given a fair trial for The law that many have a few years. This system may not Oliver Franks was appointed for the consideration of Administrative Tri­ to administer largely consists of result in total settlement but are delegated legislation, i e, rules fram­ mainly intended to discover all laces bunals, It reached the view that as far as possible, in­ ed by Government, so that the le­ and documents which are admitted gislature has little part in the or uncontroverted, what each party volving the administration and the individual citizen should preferably enactment of a substantial part of expects to prove and what issues the law applicable, which is left in remain to be proved at the trial. It be left to the ordinary courts of law rather than to a tribunal or the hands of the executive. The has been said that the success of Lok Sabha has established the pre-trial conference depends for the to a Minister, except where, for rea­ sons of cheapness, accessibility, "Committee on Subordinate Legis­ most part on the personality of the lation" for scrutiny of such legisla­ Judge and his willingness to deal freedom from technicality, expedi­ ency and expert knowledge of a tion after publication. This Com­ and aptitude for dealing with such mittee has no doubt performed and proceeding. That is why it has been particular subject, a tribunal may be considered more appropriate. is performing very useful functions. recommended above that this me­ Similar Committees have been con­ thod may be tried in the courts of The number of administrative stituted by several of the State certain selected judges in this coun­ authorities in India, purely adminis­ , The Commission has try. Of course, there is a risk of trative as well as quasi-judicial, is recommended that a permanent the procedure becoming unnecessar­ very large; they include tribunals body of experts should be set up for ily elaborate or developing into a and other authorities dealing with examining delegated legislation •fishing expedition'; but we believe revenue and taxation laws, labour before its publication and before it that in spite of such risks it should and land laws. The provisions relat­ is laid on the Table of the House. be given a fair trial on a limited ing to judicial control of administra­ An important part of its functions scale. Only after it has been so tive process are enshrined in Articles should be to see that undue complex­ tried can it be said whether it is 32, 136, 225 and 227 of the Consti­ ity is avoided and that the rules suitable for adoption in this country tution, the first two giving the Su­ should not encroach on matters* or not. preme Court the power inter alla to which ought more properly be dealt issue prerogation writs for enforcing Quasi-judicial Tribunals with by the legislature itself. Many fundamental rights and plenary of the Acts passed since Independ­ A number of administrative or powers to entertain appeals from ence have left a very large part of quasi-judicial tribunals have been orders of any tribunal; while Arti­ the legislation to be made by the instituted throughout the country, cles 226 gives the High Courts the rule-making authority; this virtual­ mainly out of considerations of ex­ power to issue directions or writs ly amounts to abdication of its law­ pediency and cheapness. In this not only for enforcing fundamental making powers on the part of the connection the Commission has rights but "for any other purpose", legislature in favour of the execu­ examined the systems that have and Article 227 gives the High tive government. Circumstances grown up in this field in England and Courts powers of superintendence. may render such procedure necessary the United States and examined at The Commission has made certain in certain technical fields; but there length the French system of droit recommendations regarding deci­ is no doubt that such a tendency on administratif, which is a distinct sions which may be regarded as ju­ the part of the legislatures has been chapter of law, applicable not only dicial or quasi-judicial and as indulged in excess and that an eff­ to the public service but also to all administrative decisions; namely, ective check on such practice would disputes between the Government that in the case of the first category be the institution of such expert or its servants and private citizens. an appeal on facts should lie to an committees at the Centre and in the The United States has an Adminis­ independent tribunal presided over States as have been recommended trative Procedure Act. In England by a person qualified to be a judge by the Commission. the Donoughmore Committee was of a High Court; and an appeal or appointed in 1929 to examine the revision on questions of law should Expense of Litigation problem of delegated legislation and lie to the High Court; and that in the One matter which specially con­ the powers exercised by persons or case of the second category the de­ cerns the average litigant is the bodies appointed especially by the cisions should be accompanied by question of expense. The costs Ministers. In 1955 a Committee reasons and should conform to awarded by courts to the successful under the Chairmanship of principles of natural justice. It is party are usually a small percent­ Right Honourable Sir Patrick Spens not quite clear why the Commission age of the costs actually incurred. undertook a study of the problem, has advocated exclusion from the The items of expenditure constitut­ the object being "to reconcile free­ scope of the appeal to the tribunal, ing the great bulk of the out-of- dom and justice for the private in the case of the first category, of pocket expenses of a litigant are citizen with the necessities of a questions of law; not only may this court fees and the 's fee. A modern Government charged with be difficult where a question in dis­ successful litigant often pays higher the promotion of far-ranging social pute is a mixed and fees to his lawyer than he gets from 922 THE ECONOMIC WEEKLY SPECIAL NUMBER JULY 1959

his opponent on taxation. The costs the High Court fees which the liti­ matters relating to the Supreme awarded by Courts do not include gants were called upon to pay". In court. In these last matters there several items of expenditure incur­ the State of Bombay the total real­ is a division of the functions of the red, e g, notice charges, typing isations of revenue from both civil Central Government, a part falling charges (except in West Bengal and and criminal courts was Rs within the purview of the Ministry Bihar), charges incurred in securing 1,99,65,385 in 1953-54 and the total of Home Affairs and a part within documentary evidence such as (ex­ expenditure in the same year for the that of the Ministry of Law. This cept in West Bengal and Bihar) maintenance of civil and criminal division appears to have taken place search fees and copying charges, courts was Rs 1,98,72,274. The re­ first in the days when the portfolio coats of the party's own attendance. ceipts amounting to Rs 1,99,65,385 of law was held by an Indian Mem­ The Commission has recommended included Rs 1,22,51,290 realised from ber of the Governor-Generals Exe­ the inclusion of such items in the court fees. The Commission has cutive Council, while Home Affairs costs taxed. characterised as mistaken the view were the concern of a European of the Taxation Enquiry Commis­ Member, who was in charge of law The Commission has regarded sion that the administration of and order and the appointment of court fees so .important as to merit justice as a whole did not pay its judges to the High Courts. It has a separate chapter. India appears way and that a part of its costs had been recommended that the Minis­ to be the only country in which the to be borne by the general revenues. try of Justice should assume control Government imposes a tax on per­ of the Indian Judicial Service whose Thus to an honest litigant the son seeking a remedy against the creation the Commission has re­ courts of justice would appear to deprivation of his property or in­ commended, and should be charged wear a stern and forbidding frown fringement of his legal rights. "Our with the task ensuring that the instead of an aspect expressing an States", says the Commission, "pro­ High Courts possess adequate and anxious interest in the dispensation vide hospitals which give free treat­ competent personnel. It has also of justice. Neither in the United ment to persons who are physically been suggested that civil and crimi­ Kingdom nor in the United States afflicted. But if a person is injured nal procedure and the legal profes­ does a system of levy of court fees in the matter of his fundamental or sion might be dealt with by this graded on the stake in action pre­ other legal rights, we bar his ap­ Ministry. It may be necessary to proach to the Courts except on pay­ vail, except for a few items in the amend the Constitution so as to ment of a heavy fee". The fee United Kingdom where ad valorem give a greater measure of control charged is so excessive that it pays fees are charged. Generally speak­ to the Centre over the administra­ not only for the entire cost of the ing, in both countries a simple ini­ tion of justice in the States and if administration of civil justice but tiating fee is charged in most cases, such amendment be made, this Mi­ also the cost of prosecuting and to which another fee known as the nistry might be entrusted with such punishing criminals for crimes with "settling-down" fee is added in the functions. which the civil litigant has no con­ United Kingdom at a later stage of cern. the trial. The Commission has re­ In England, also, the administra­ commended the immediate accept­ The Court Fees Act of 1870 fixed tion of justice is divided, mainly for ance of the principle adopted in what may be described as a moder­ historical reasons, between the Lord England that the cost of the judi­ ate scale of court fees. Since then Chancellor and the Home Secretary, ciary should be looked upon as a the financial needs of the govern­ This recommendation of the Com­ charge to be borne by the general ment have grown enormously. In mission is intended to do away tax payer and that the remaining most of the States the increase has with an archaic and illegal division cost of the administration of civil been "to an oppressive lever' so of functions at the Centre and de­ justice only should be borne by fees that the fee is no longer a fee but serves consideration and implemen­ paid by the civil litigants. This ap­ tation at an early date. a heavy tax. pears to be a most salutary recom­ The Law Commission of India is The administration of justice is mendation and the sooner it is given to be complimented on its careful one of the fundamental functions effect to the better. There is no and detailed Report containing a of the State. A litigant should be justification in principle for not large number of useful suggestions entitled to seek justice at as little adopting the practice which obtains and recommendations. This review expense as possible, for it is the in the United Kingdom, for the is already too lengthy to admit of duty of the State to enable every existing practice in this country, any discussion of a number of ques­ citizen to assert his legal rights complicated as it is by great dispa­ tions of some importance, e g, lan­ against fellow citizens and the rities in the rates adopted in differ­ guage, separation of judicial and State. Unfortunately the view of ent States, amounts merely to an executive functions and legal aid; as the State Government seems to be irrational imposition. to the last the Commission has re­ that the court fee is an ideal source Ministry of Justice commended the adoption of schemes of revenue, which can be collected already recommended in Bombay without any difficulty and made In the last chapter of its Report and West Bengal (Appendices I and available for the purposes of general the Commission has recommended II to Chapter 27). It is to be hoped administration. Step by step every the establishment of a Ministry of that the Government will find at State Government has raised the Justice at the Centre, although the least the majority of the conclusions court fees higher and higher till the administration of justice is, under arrived at and the proposals made rates have reached alarmingly high the Constitution. the exclusive con­ in the Report as eminently cogent figures. A former Chief Justice of cern of the State Governments, with the exception of the constitution and and practicable and give effect to Madras has observed that when he them without undue delay. came to India he "was amazed by organisation of High Courts and all 923 SPECIAL NUMBER JULY 1959 THE ECONOMIC WEEKLY

924