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.  

The Kekala Education Act, 1958 and Minority Schools

(A.V. Moothedan, Advocate, S.C.)

The Kerala Education Act, VI of 1958 received the assent of the President on 19th February 1959 and it is published in the Kerala Gazette extraordinary dated 24th February 1959.

The Kerala Education Bill 1957 was one of the most controversial measures introduced by the present Kerala State Government. After considerable agitation and protest the Bill was finally passed by the Kerala State Legislative Assembly on 2nd September 1957 and under Article 200 of the Constitution the Governor reserved the Bill for the consideration of the President. The President enter lined some doubts regarding the validity of certain provisions in the Bill and under Article 143 of the Constitution referred some questions to the opinion of the Supreme Court of India. The matter was heard by a full bench of the Supreme Court consisting of seven Judges. After hearing elaborate arguments on behalf of parties interested the Supreme Court reported to the President and the report is published in 1958 K.L.T. 465. The Bill was returned by the President for making suitable amendments in the light of the opinion expressed by the Supreme Court. Accordingly some amendments were made by the State Assembly and the Bill thus amended received the assent of the President The respective dates for the commencement of the different provisions in the Act are not yet announced.

An important change made in the Bill after reference to the Supreme Court, is that a new term “Minority Schools” has been introduced as clause 5 of S.2 of the Act. Such a term was not in the Bill as passed by the State Assembly on 2 -9-1957. It is interesting to examine the effect of the introduction of the term “minority schools.” The term “minority schools” has been defined in the Act as follows:

“Minority schools” means schools of their choice established and administered, or administered, by such minorities as have the right to do so under clause (1) of Article 30 of the Constitution.

For determining who are the minorities contemplated in the above definition, we may refer to the (pinion of the Supreme Court reported in 1958 K.L.T. 465 at 491. In the opinion of the Supreme Court Christians, Muslims and Anglo Indians are certainly minorities in the Kerala State. Therefore for all practical purposes minority schools means schools of their choice established and administered by Christians, Muslims and Anglo-Indians.

Next we shall consider what are the provisions of the Kerala Education Act that will apply to minority schools. S 33 of the Act lays down that “nothing in this Act shall apply to any school which is not a Government school or a private school” It is clear that minority schools will not come within the category of Government schools. But will they come in the category of private ‘schools. That is a ‘difficult matter to determine In clause 7 of Section 2‘private school’ is defined as aided or recognized school and in clause 8 recognized school is defined as a private school recognized by the Government under this Act. Obviously these definitions do not give any guidance in the matter. In clause (l)of the same Section, Aided School is defined as a private school which is recognized by and is receiving aid from the Government. So in the definition of private schools or aided school, it is not stated that the minority schools will be included in the category of private schools or aided schools. But in Section 14 providing for taking over management of schools under certain circumstances and in Section 15 conferring power on the Government to acquire any category of schools it is expressly stated that Sections 14 and 15 will not apply to minority schools.

Minority schools form a different category of schools different from aided schools or private schools and standing isolated from the scheme of the Act. Minority schools are schools of choice established and administered by Christians Muslims and Anglo-Indians, recognized and receiving aid from the Government and continuing as such till the commencement of the Act. Whether the term ‘private schools” or’’ aided schools” as defined in the Act include “minority schools”, is a question to be carefully considered by the authorities responsible for the administration of the Act. If ‘‘private schools” or “aided schools” do not take in minority schools established and administered by Christians, Muslims and Anglo-Indians, ipso facto such schools will not be bound by the Education Act and such schools have the right to continue as minority schools after the commencement of the Act.

BLOOD ON HIS HANDS

(T.G. John, Advocate, Trichur)

“Remember, after your verdict there is no appeal. If you, gentlemen of the Jury, say that it is proved that the prisoner has the blood of that poor creature on his hands, then your decision is final, and in a brief space he will pass to that world from which he can never return. If you are satisfied, I do not ask you to shrink from your plain duty; but I know that you will pause long, if you have any doubt in your minds, before you take upon yourselves the responsibility of this man’s blood. It is a responsibility for each one of you. You are not shielded by the fact that there are twelve of you. Through me as a last appeal, the prisoner trusts that the Jury will be able to say that the case has not been proved against him and he will feel that he has a had trial which was fair before God and his country.”

That was the closing phase of one of the most eloquent defence speeches ever made by a counsel at the ESSEX ASSIZES. The year was 1903 and Mr. George Elliot K.C. was defending Samuel Henry Dougal for the murder of Miss Camille Cecille Holland. In spite of the best efforts of the counsel, Dougal was led to the gallows on the morning of 8th July 1903.

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Samuel Henry Dougal was a professional woman hunter. He belonged to that class of criminals like Landru and George Joseph Smith who recognize emotionally starved women, who sent them from far off and who know exactly what they are about when they enter into relationship with them. Physically he was enormously attractive to women, of much the same type as the magnificent male and cruel murderer Pranzini. His animal magnetism was enormous but very few knew that his private life was a long procession of inglorious victories over servant-maids and shop-girls who were relieved of their virtue and money. His last and greatest adventure was when he met Miss Camille Holland. Whether the meeting took place accidentally at Earl’s Court Exhibition or whether it came about through an advertisement in a matrimonial paper that meeting had equally fatal consequences for both the people involved.

In the year 1898 when Dougal met his victim for the first time, Miss Holland was about fifty-six years of age living as most maiden ladies of the times did, in a boarding house in London. She was further a pretty, delicate looking woman who took to preserve her youthful looking appearance through means that were rarer in those days than they are now. She powdered her face, dyed her hair reddish gold and was careful over all the details of her toilet: her landlady had left it on record ‘that though she looked about sixty in bed, when she finally “got up” for the day she seemed ten or fifteen years younger’. A well-to-do relation of hers had left her a legacy which in all amounted to an invested capital of £6000.

It is when meetings such as that of Dougal and Camille Holland take place that criminal history is made. “The potential murderer has met the born ‘murderee’; the man who is such a convinced egoist that he quite honestly thinks he is justified in anything he may do to another human being to gain his own ends, has met the woman who asks nothing better than to yield to his wishes”.

Married or not, Camille Holland left the boarding house and went to a house called Parkmore at Brighton which she and Dougal had rented out and there they spent their ‘ungodly’ honeymoon. Meanwhile the fortune hunter in Dougal began his man oeuvres. His first idea was to purchase a farm house in his name with Camille’s money The contract for the sale of the farm was prepared in the first instance in the name of Dougal but subsequently Miss Holland met the land agent in secret and the first contract was torn up and another was made up in her own name-. In spite of the fact that Miss Holland had completely placed herself in Dougal’s power she now took a step which one would have thought she would have been afraid of. It was perhaps this burst of independence that caused Dougal to silence her for good. To Dougal there was no purpose in living ‘close’ to fortune.

19th of May 1899 was the day on which Miss Camille Holland was last seen alive. On that day she joined Dougal who was waiting with a pony and trap outside the farm-house which was by that time purchased. They departed in the best of spirit but once away from the house, Dougal shot her with a revolver holding the weapon close to her head, the bullet passing in at one side of her head and lodging under the scalp on the other side. Haying shot her; Dougal took her body and threw her into the grave which was ready for it a ditch that was being filled in. He returned to the Moat Farm house that night and through diabolic cunning hoodwinked the neighborhood and the public with a make-believe story of Camille having gone to the continent. From that day no one saw Miss Holland alive but her business affairs went on as if she were alive. Her brokers and bankers only knew her address at Moat Farm. From time to time money was drawn from her account and placed to Dougal’s account at the BirkBeck Bank. For four years the farce con­tinued through a systematic series of forged signatures; and down to 1902 her affairs went on as if she were taking an active interest in the affairs of life. But by this time rumors were afloat and investigation started. The body of Miss Holland was exhumed and Dougal burst into newspaper fame. He was first arrested for forgery but later on the charge was modified to one of murder.

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Chelmsford Prison-8th of July 1903. It was a perfect day, the sort of day Keats must have had in mind when he wrote of ‘the season of mists and mellow fruitfulness’. A Sabbath calm lay over the prison-yard where Michaelmas daisies, dahlias, chrysanthemums and sunflowers made a blaze of color against the old grey walls of the padded cells of the prison. It was a fine sunny morning and everything seemed to be basking in a hazy golden glow when Dougal sniffed at the morning air and bare-headed and bare throated took his last brief walk to the gallows. The executioner, billing ton, had his hand upon the lever when the chaplain bent forward towards Dougal who could not see him (already the white cap had been drawn over his face) and asked him twice ‘‘Are you guilty or not guilty”. Dougal half turned in the direction of the chaplain’s voice and said ‘Guilty’ at the moment the lever was pulled.

This action of the chaplain was severely criticized both in the Press and Parliament. It is a nice theological point how far a minister of God is justified in agitating a man during his last moments on earth for the sake of his soul.

In reply to the question of Mr. H.D. Greene in the House of Commons regarding the chaplains’ question and the confession of Dougal, the Home Secretary said “The relations between the chaplain and the prisoners under his spiritual care are a matter not dealt with and hardly capable of being dealt with by statutory rules. In the case to which I take the honorable member to refer, I have called for a report from the chaplain and he informs me-that Dougal had promised to make a true confession on the eve of his execution, but failed to do so. As the last moment approached, the chaplain says that his spiritual anxiety became intense, that he prayed earnestly with Dougal during the last quarter of an hour, during which Dougal sobbed. The chaplain further states that it was under strong impulse, and quite on the inspiration of the moment that he made the strong appeal at the scaffold. While making every allowance for the chaplain’s difficult position, I think the incident is to be re­gretted and I will endeavor to prevent a similar occurrence in [the future” (17th July 1903).