HUMANISATION OF CRIMINAL LAW IN YUGOSLAVIA

The Federal Executive Council has adopted the bill on amendments and supplements to the Criminal Code which foresees major amendments in the penal system and generally a humanization of the criminal law. One of the most essential changes is the abolition of the penalty of life imprisonment which will be replaced by a penalty of 20 years rigorous imprisonment. The bill also provides that death sentence can be pronounced in very grave cases. Till now death sentence has not been pronounced only on pregnant women and in future it will not be pronounced on persons below 21 years of age. Persons who have committed the gravest offence against the people, state or armed forces are not in question.

Persons who have been punished with rigorous imprisonment or imprisonment will after 11 months of constant work in a reformatory be allowed to a leave of 14 days during one year, reimbursement for work done, one day off a week, free health and social protection etc. It is also planned to acquit the convicted person if he has served one-third of his prison term instead of a half as has been the case so far.

Major changes have also been made with regard to minors. The bill provides that persons up to 14 years of age cannot be punished but only educational measures be undertaken against them. Minors aged 14 to 18 years are divided into two categories. Only educational measures can be applied on younger minors aged 14 to 16 years; the court can pronounce punishment on minors aged 16 to 18 years only if they have committed a criminal offence for which a penalty of at least 5 years of rigorous imprisonment is foreseen this being only in cases when it is considered that it would not be justified to apply educational measures.

Retirement of Mr. Justice P. Narayana Pillai

With the retirement of Mr. Justice P. Narayana Pillai, the judiciary in Kerala distinctively loses one of its most distinguished and ablest Judges. Bishop Creighton who stressed character more than intellect as a judicial quality stated: "To be a great Judge, the path is tough and hard and to be a good Judge the path is thorny and stony". Mr. Justice Narayana Pillai travelled victoriously through both the paths and attained greatness and goodness in happy blend. He retires with the imprint as a great and good Judge, a gentleman Judge.

Endowed with the most affable manners, a most equable and unassuming temperament and a most gentle and tolerant disposition, he discharged his duties to the absolute satisfaction of one and all. His uniform courtesy to all and innate humility made him a lovable personality. He has proved himself a great Judge, careful about the law, conscientious about the facts, considerate towards the Bar and a consummate artist of dignity and detachment in his judicial process. Personalities or parties did not affect his decisions. Learning, lucidity, brevity and accurate analysis, laced with philosophy and logic made his judgments masterpieces. There was always a certain ease and pleasantness in him, something friendly and fraternal, even in the midst of strong disagreement of views.

His contribution to the case-law, especially to criminal branch, is superb and has enriched our jurisprudence. The entire credit for the disposal of all Criminal Cases in our High Court without any arrears, thereby placing Kerala at the top among the High Courts of India, goes to Mr. Justice Narayana Pillai. Frankfurter has stated about criminal law thus: "In administering the criminal law judges weild the most awesome surgical instruments of society... If the judge is adequate to his functions, the moral authority which he radiates will impose the indispensable standards of dignity and austerity upon all those who participate in a criminal trial". It can proudly and creditably said of Mr. Justice Narayana Pillai that he has ably weilded the surgical instruments of society and adequately fulfilled his judicial functions with distinction. He administered justice with regard to the greatness of the system of the law itself, at the same time pinpointing the infirmities and drawbacks of legislation, without any doze of judicial cynicism or officialdom. His generous humanity enabled him to uphold human values and human dignity in his approach to cases.

The greatest thing in the life of a Judge is to have the approval and recognition of his services by the Bar. Mr. Justice Narayana Pillai has that approval and approbation of the Bar in abundant measure. He has left behind him no ill-will, no bitterness, but only the happy and sweet recollections of a lovable and learned Judge. We wish him long and happy life and further spell of useful service to his fellowmen and country.

It would be quite appropriate to sing with the Poet, that the elements,

So mixed in him that Nature might stand up

And say to all the world, "Here goes a Judge".

Law Commission Report-Summary of Suggestions

Supreme Court

(1) The best talent among the judges of the High Court’s has not always found its way to Supreme Court. It is widely felt that communal and regional considerations and executive influence (exerted from the highest quarters) have been responsible for some appointments. Such considerations should not prevail.

(2) Appointments hitherto made have been practically confined to one class of persons.

An effort should be made to directly recruit distinguished members of the Bar at a time when they can look forward to a fairly long tenure on the Bench.

(3) The person selected should have a tenure of at least ten years in the interests of the stability of judicial administration.

(4) It is not desirable to raise the retiring age of judges.

(5) As the manifold duties of his office would require some time to familiarize himself with them, the Chief Justice of India should have a tenure of at least five to seven years

(6) The practice of appointing the senior-most puisne judge of the court as the Chief Justice of India is not desirable because the duties of the latter require not only a person of ability and experience but also a competent administrator capable of handling complex matters. Instead, the most suitable person whether from the court, the Bar or the High Courts should be chosen,

(7) It is inopportune to suggest an increase in the salaries of judges. But the meager pensions which at present judges get do not induce members of the B.ir to accept judgeships The pension of a judge and of a. Chief Justice, who retires after fifteen years’ service, including service, if any, in a High Court should be Rs. 2,500 and Rs. 3,000 per month respectively, with proportionately less amounts for shorter periods to service. 

(8) The great disparity between the salary and the leave allowances admissible to a judge induce him to work even when he feels the need for a short rest; this adversely affects the quality and the volume of disposal. The leave allowances of a judge should be at least as liberal as those of a High Court Judge.

(9) It is not consistent with the dignity of retired judges to have chamber practice.

(10) Retired judges should be barred from accepting further employment under Government except that provided under Article 128 of the Constitution.

(11) It is not necessary to enlarge the jurisdiction of the court in criminal matters. Although the exercise of jurisdiction under Article 136 of the Constitution has prevented grave miscarriage of justice in some cases, yet the Court might be more chary of granting special leave freely as such a practice has a tendency to affect the prestige of the High Court,

(12) The file of the court is being clogged with appeals relating to labour matters, relief should be given to it by enabling the parties to file appeals in such matters to the High Courts or to a special tribunal constituted for the purpose without taking away the jurisdiction of the Court under article 136 of the Constitution.

(13) No constitutional amendment is necessary in the matter of separate and dissenting judgments (or opinions) being delivered by the Court in view of the fact that the recent trend of the Court has been to deliver a single judgment as the judgment of the Court in cases where all the judges are agreed.

(14) The pendency shows an upward trend; but a further increase in the strength of the court will have to be deferred for the present. The Court may in the meantime consider the desirability of instituting a system of preliminary hearing in article 32 petitions and of enlarging the powers of a single judge or of a Division Bench to deal with contested interlocutory and miscellaneous matters.

High Courts

(1) Increase in the normal work, expansion of special jurisdiction under various Acts, petitions for the enforcement of the fundamental rights guaranteed by the Constitution, the faulty tests adopted by the executive in assessing the necessary judge strength, delays in filling vacancies and deputation of judges for work other than purely judicial have contributed to the large arrears.

The judge strength was not increased in time to prevent arrears from accumulating because of faulty methods of examination of the needs of the courts.

It should he a convention that if the Chief Justice of a state makes a request for additional judges and if the need therefore is endorsed by the Chief Justice of India, the request of the former should be accepted.

Though the deputation of judges for the performance of certain types of non-judicial or quasi-judicial work is necessary in the public interest, efforts should be made to keep up the strength of the courts, particularly, when such duties are likely to take a substantial period of time. 

(2) Unsatisfactory appointments made on political, communal and regional or other grounds, have resulted in the diminution of the out-turn of work and contributed to arrears

In a vast majority of cases, the procedure laid down in article 217 of the t Constitution has been followed and the concurrence of the Chief Justices obtained to many unsatisfactory appointments, for the Chief Justices have had to surrender their better judgment and yield to the wishes of the Chief Ministers.

(3) Consultation with the State executive is necessary before an appointment to the Bench is made.

While it should be open to the State executive to express its opinion on the suitability of a person proposed by the Chief Justice, it should not be open to it to propose a nominee of its own and forward it to the Centre; if it does not agree with the recommendation made by the Chief Justice, he should be asked to make another proposal. Further to avoid delays, it would be advisable for the Chief Justice to send a copy of his recommendation direct to the Chief Justice of India.

Article 217 of the constitution should be amended to provide that a judge of a High Court should be appointed only on the recommendation of the Chief Justice of a State and with the concurrence of the Chief Justice of India.

(4) The senior-most puisne judge should not automatically be appointed as the Chief Justice unless he possesses ability and experience and is a competent administrator capable of handling complex matters. The appointment should be with the concurrence of the Chief Justice of India.

(5) While there is no need to have a rule that the Chief Justice shall always be from outside the State, yet when a vacancy arises in the office, the fittest person should be selected, if necessary from outside.

(6) Ill-informed criticism of the judiciary by responsible persons has adversely affected its prestige and has made the recruitment to the Bench difficult to some extent.

(7) The present salary of judges ia not so inadequate as to deter competent men from accepting judgeships, except perhaps, in Calcutta an65 Bombay.

(8) The difficulty caused (in regard to recruitment from the Bar) in places like Calcutta and Bombay as a result of the low salaries paid to judges can be cot interacted by offering judgeships to rising junior members of the Bar at a comparatively early age.

(9) Indiscriminate invitations to junior members of the Bar overlooking the seniors tend to destroy respect of the judges and subsequently deter competent seniors from accepting judgeships.

(10) There should be a convention or a condition of service that a judge should not decline Supreme Court judgeships, if and when called upon to accept a seat on the Bench of the Supreme Court.

(11) Meager pensions have driven retired judges to practice at the Bar or to seek employment. The pension of a Chief Justice and that of a judge retiring ‘after twelve years’ service should be increased to Rs. 2,000 and Rs. 1,750 per month . respectively. 

(12) Judges should be allowed to draw full salary for the period for which they are entitled to leave on full allowances and half salary for the period of leave on half allowances.

(13) Judges should not be permitted to practice in any court after retirement in view of the increased pensions recommended.

(14) A retired judge should be barred from accepting any employment under government other than as a judge of the Supreme Court.

(15) The ripe experience demanded of judges requires that their retiring age should be raised to sixty-five years; this enhanced age of retirement and recommendations 12-15 supra, should apply only to judges appointed in future.

(16) In the absence of a definition of the term “judicial office” used in article 217 (2) (a) of the Constitution, an officer of the judicial service with ten years’ service is eligible for appointment as a judge even though he has not actually performed judicial functions for that length of time. The said article should be amended so as to restrict the appointment only to a judicial officer who has exercised judicial functions as a district judge for at least three years.

(17) The permanent strength of the High Courts should be re-fixed after taking into consideration the recent increase in their work and the strength so fixed should be reviewed at intervals of two or three years.

(18) Though by no means an ideal one, the standard time for the disposal of second appeals and letters patent appeals should be one year, of first appeals two years, and of criminal matters, writs and civil revision petitions six months from the date of institution. Only cases pending for longer duration, should be treated as arrears and additional judges appointed for the sole purpose of their disposal within a period of two years

(19) Merit should be the sole criterion in appointing judges; and for the purpose of recruitment, the entire country should be treated as one unit. Further, an effort should be made to persuade suitable senior legal practitioners to accept judgeships at least for a short period as a public duty. For this purpose, an ad hoc body presided over by the Chief Justice of India should be created to draw up a panel of persons suitable for such appointment;

(20) Mere increase in the number of judges is not sufficient. Legislation should immediately be undertaken for transferring all first appeals valued below Rs. 10,000 now pending in the High Courts to the district courts. Further, by administrative measures, such as increasing the powers of single judges, judge-power should be conserved.

(21) The Courts should work for at least 200 days in a year. Once this is done, it should be left to the courts to regulate vacations.

(22) Legislation for regulating vacations is undesirable.

(23) Judges should sit in court and do judicial work for at least five hours on every working day. They should not be required to sit in court on Saturdays winch ate not really free days for them.

(24) Judges should set an example of strict punctuality on the Bench; the practice of retiring into chambers for dictating judgment or for doing administrative work during court hours is not desirable. 

(25) It is not practicable to have an All-India Cadre of High Court Judges in the sense that judges should be freely transferable from one High Court to another. The all-India judicial service, the creation of which has been recommended in the Chapter on “Subordinate judiciary” and the recent formation of States into zones and the efforts to treat the States forming part of a zone as one unit for certain purposes would help in bringing outside elements into the States; this would bring about the necessary all-India outlook in the citizens.

(26) Judges should remember that their office demands of them certain reserve and restraint in their social life.

(27) While judges should control the hearing of a case, they should not interfere too much and too often in the arguments.

(28) The available judge-power should be best utilized by the Chief Justices by assigning to Judges those branches of work in which they are most interested.

(29) Judges should realize that supervision of, and control over, subordinate courts is a very important branch of their duties.

(30) Setting up of Benches of the High Court at different centers in a State is undesirable.

High Courts Original Side

(1) As the trained Bar and judges having experience on the Original Side constitute a most efficient system for quick and satisfactory disposal of highly intricate litigation arising in the large industrial cities of Calcutta, Bombay and Madras^ and also because the costs of litigation on the Original Side are not excessive, the High Courts at these three places should continue to exercise ordinary Original Civil jurisdiction.

(2) Such jurisdiction should, however, extend only to all matters exceeding Rs 10,000 in value, for a cheaper tribunal than the High Court is both necessary and desirable to dispose of simple cases of a lower valuation. Therefore, the pecuniary jurisdiction of the City Civil Courts in Bombay and Madras should be reduced to Rs. 10,000.

(3) The restrictions on the City Civil Court, Calcutta, as regards the trial of commercial causes and mortgage suits should be abolished and the court empowered to try all such suits of value not exceeding Rs. 10,000. Further, all matters now pending on the original side falling within the jurisdiction of the City Civil Court as suggested above should be transferred to it.

Adequacy of Judicial Strength

(1) Though there is some degree of arbitrariness about the time-limits set, a regular contested suit in a munsiff’s court should be disposed of within a year and in a subordinate judge’s court within a year and a half; small cause suits should be disposed of within three months; regular contested appeals in district courts within six months and civil miscellaneous appeals within three months.

Criminal cases in magistrates’ courts should be disposed of within two months; committal proceedings within six weeks and sessions. Cases within three months from the date of apprehension of the accused Criminal appeals and revisions should be disposed of within two months in the sessions courts and Within six months in the High Court from the dates of their institution

All matters which have not been disposed of within the periods specified above should be treated as “arrears”. From the available statistical data, it appears -

(i) That in most of the States the existing strength of the judiciary at the level of munsiffs and subordinate judges is sufficient to deal with current institutions;

(ii) That at the level of district judges, the judiciary is so largely deficient in numbers that it is not able to cope even with the current institutions;

(iii) That the pendency of old suits is very high in most of the States.

Despite repeated attempts by the High Courts, the failure of the State Governments to appoint additional judges to handle the work, which has considerably increased on account of several new Acts coming into force, has resulted in accumulation of arrears.

Therefore, the strength of the subordinate judiciary should be kept at such a level as to enable it to dispose of all matters within the time limits stated above.

For this purpose, the High Courts should carefully examine immediately the requirements of the judicial personate of various classes in the light of the volume of work in the subordinate courts and fix the strength so that it will be sufficient to dispose of the current institutions within the target time limits.

In doing so, provision should be made for leave and deputation vacancies and those caused by promotion of officers and also for the training of judicial officers.

Till the strength is so fixed, the present strength should not be depleted for making ex-cadre appointments

Further, the cadre strength of district judges needs to be permanently raised.

(2) The High Courts should be empowered, subject to certain limits, to create temporary additional courts wherever they consider necessary without reference to the State Governments

(3) The High Courts and district judges should be careful to see that a subordinate court is not over-burdened with work. Whenever the pendency of suits is very high, the district judge should redistribute the work or ask for an additional hand to clear off the arrears.