Law Commission Of India Report No. 4
On The Proposal That High Courts Should Sit in Benches at
Different Places in a State
Forwarded to the Union Minister of Law and Justice, Ministry
of Law and Justice, Government of India by M.C. Setalvad, Chairman, Law
Commission of India, on August 1, 1956
|
Chairman,
My
Dear Minister,
Law Commission, New Delhi August 1, 1956 I have great pleasure in forwarding herewith the Fourth Report of the Law Commission dealing with the proposal that the High Court of a State should sit in Benches at different places in view of the proposed re-organisation of the States. 2. As the proposal is embodied in the States Re-organisation Bill which is pending before Parliament, the matter was considered at a meeting of both the sections of the Commission held on the 21st July, 1956. The unanimous opinion of the Members present was that it was not in the interest of the administration of justice that the High Courts be split up and made to sit in Benches and it was decided that a Report should immediately be made to the Government giving expression to the Commission's view. 3. In view of the proposal being under the active consideration of Parliament and the urgency of the matter the Report is being forwarded though it has not yet been formally signed. The Report has, however, the concurrence of all the Members except that of Dr. N.C. Sen Gupta who was not present at the meeting and Shri S.M. Sikri who is abroad. The Report will be signed at the next meeting of the Commission. 4. As decisions on the subject-matter of the Report are likely to be taken very soon, I shall thank you to forward it to the appropriate authorities so that due consideration may be given to it. Yours sincerely, M.C. Setalvad Shri C.C. Biswas, Minister of Law & Minority Affairs, New Delhi. |
On The Proposal That High Courts Should Sit in Benches at
Different Places in a State
Report
1. The question of the High Courts sitting in
Benches at different places in a State has come to the forefront owing to the
proposed re-organisation of the States. At present there are five High Courts in
India that sit in Benches — the High Court of Punjab which has a Bench at Delhi,
the High Court of Rajasthan which sits at Jodhpur and Jaipur, the High Court of
Uttar Pradesh which has a Bench at Lucknow, the High Court of Travancore-Cochin
which sits at Trivandrum and Ernakulam, and the High Court of Madhya Bharat
which sits at Gwalior and Indore. It will be found that in all these instances
the reason for the departure from the accepted principle that the High Court
should be situated at the Capital of the State was owing to historical and
political considerations. There is now a suggestion that this principle should
be extended and that in some of the new States the High Court should sit in
different Benches situated at different places. There is a provision in the
States Re-organisation Bill (Clause 53) that the High Court for a new State and
the Judges and Division Courts shall sit at such place or places as the Chief
Justice may, with the approval of the Governor, appoint. As the provision stood,
the initiative for the formation of a Bench at a particular place would have
come from the Chief Justice. This provision has been altered by the Joint Select
Committee and the initiative for the formation of a Bench at a particular place
has been transferred to the President. In other words, more emphasis has been
put upon the political considerations that may necessitate the setting up of a
Bench at a particular place.
2. In our opinion the question whether the High Court should sit
as a whole at one place or in Benches at different places has to be considered
solely from the point of view of the administration of justice and political and
sentimental considerations have, as far as possible, to be excluded. We are
firmly of opinion that in order to maintain the highest standards of
administration of justice and to preserve the character and quality of the work
at present being done by the High Courts, it is essential that the High Court
should function as a whole and only at one place in the State.
3. The High Court is the highest Court of Appeal in the State and
it is necessary that it should have the assistance of the best legal talent and
the best equipped law library. It is also necessary that it should work in a
proper atmosphere and should be constantly conscious of the traditions built up
by the Chief Justices and Judges in the past. With regard to the new High Courts
the Chief Justice and Judges should be equally anxious to build up traditions
similar to those of the older High Courts. This, in our considered view, is only
possible if the Chief Justice and Judges sit at the same place and administer
justice as a team.
4. If the High Court works in Benches it will be difficult, if not
impossible, for the Chief Justice to have proper administrative control over the
working of the Benches or the doings of his colleagues who will constitute the
Benches. The cohesion and the unity of purpose that should exist among all the
Judges of a High Court will necessarily be absent when some Judges sit at places
far away from the principal seat of the High Court. Every Court has an
atmosphere and traditions. A new Judge coming to the Court becomes conscious of
these and tries to act in conformity with them. These operate as a salutary
corrective to the personal idiosyncracies of the Judge. This corrective will be
completely absent in a Bench.
5. The High Court Bar acquires a justifiable reputation by
appearing before the Judges of the High Court, by arguing important cases and by
helping the Court finally to settle the law at the highest level. A Bench of the
High Court can never expect to get assistance from such a Bar. A District or
Taluka Bar, however competent it may be, cannot be compared to the High Court
Bar. The litigant, therefore, appearing before a Bench will have to be satisfied
with less competent advocacy or will have to spend much more by getting the
services of some one from the High Court Bar.
6. A well-stocked and well-equipped library is essential to the
proper working of the Court. Such libraries only exist in the High Courts. At
other places where the Bench sits both the lawyer and the Judge will be
considerably handicapped by the absence of this important and essential
convenience.
7. In the High Court Judges are familiar with the judgments
delivered by their colleagues from day to day. Being constantly in touch with
each other they are in a position to consult with each other on points of
practice so that there should be uniformity in the decisions given and certainty
in the minds of the litigants as to how the Court will decide. If there are
different Benches it is quite possible that one Bench may come to a decision
contrary to the one given by another Bench a few days before. The High Court
will have to be frequently constituting Full Benches to resolve these conflicts.
8. As against these serious disadvantages are there any
countervailing conveniences which the litigant will receive by the constitution
of these Benches? It is said that in the India of today justice should be taken
to the door of the litigant and therefore the litigant should not be compelled
to go long distances to the High Court. This argument is based upon a complete
misapprehension of the working of the High Court and the system of
administration of justice in our country. In the trial of cases, both civil and
criminal, undoubtedly the Court, functioning as a court of first instance, must
be easily accessible to the litigant and his witnesses. The civil and criminal
courts in the Talukas or Tehsils and at District headquarters, Subordinate
Judges and the District and Sessions Courts in the District satisfy these needs.
When the argument is put forward that in England the High Court Judge goes on
circuit, it is forgotten that he goes as a court of first instance and never as
an appellate court and under our system the Subordinate Judge and the District
and Sessions Judge fulfil this role. As pointed out by the Civil Justice
Committee of 1924-25: "The appellate side of the High Court does work which in
England is done by the Court of Appeal". The presence of the litigant is not
really necessary at the hearing of the appeal. He is not called upon either to
give evidence or to help the court in any way by his presence. The appeal is
decided on the record before the Court which has already been prepared by the
court of first instance. Undoubtedly there are litigants who like to be present
when their appeals are heard, but the expense involved is trifling. Therefore,
the litigant will in no way be benefited by the setting up of different Benches
of the High Court.
9. If the liberty of the citizen is to be safeguarded and the rule
of law to be ensured, it is of paramount importance that the High Courts all
over India should be strengthened. It was, it seems to us, unwise to have
created so many High Courts after Independence. But that perhaps was also due to
historical reasons. There are welcome signs now of a reversal of that policy.
There are proposals for a common High Court for more than one State and in some
of the new States one High Court will take the place of the High Courts which
existed in the merging States. If the object of this new policy is to strengthen
the High Courts, then that object will be totally defeated by the idea of
setting up Benches. In effect the High Court will be divided into several High
Courts sitting at different places. The Benches will be nothing more than
glorified District Courts.
10. It may be pointed out that a very large majority of those who
have answered the Questionnaire issued by the Commission including the Judges of
the Supreme Court who have answered it have expressed a view against the
formation of Benches. Informed opinion is thus decisively against the proposed
course.
11. As the re-organisation of the States is imminent and as the
policy of constituting Benches may be given effect to in the very near future we
have thought it our duty to make this Report in order to apprise the Government
of India in time of the serious dangers underlying this policy. The efficiency
of the administration of justice should, in our view, be the paramount
consideration governing this matter. The structure and constitution of the
Courts should not be permitted to be influenced by political considerations.
That this has happened in the past in certain cases can be no valid ground for
the extension of that policy. The Commission is of the view that we should
firmly set our face against steps which would lead to the impairment of the High
Courts with the inevitable consequence of the lowering of the standards of
administration of justice.
M.C. Setalvad Chairman
M.C. Chagla, Member
K.N. Wanchoo, Member
G.N. Das, Member
P. Satyanarayana Rao, Member
V.K.T. Chari, Member
D. Narsa Raju, Member
G.S. Pa thak, Member
G.N. Joshi, Member
K. Srinivasan,
Durga Das Basu, Joint Secretaries
New Delhi
Dated: 22nd September, 1956.
Courtesy:- Legal Point Foundaiton
No comments:
Post a Comment