Procedural Bottle Necks - A Study of Procedure for

Obtaining a Certified Copy of Order/Judgment - High Court

(By M.R. Rajendran Nair, Advocate)

Archaic procedure and absence of practical approach coupled with governmental indifference in financial matters contribute to avoidable delay in administration of justice.

High Court Judges are over burdened with judicial and administrative work. Appointments of Judges even to the extent of sanctioned strength are never made. There are Judges who dispose of large number of cases. The stenographers'/typists' strength is grossly inadequate in these areas. Computerisation is only halfway. But there are areas where with the existing infrastructure better result can be achieved and the procedure could be speeded up.

Let us have a look at the current procedure for gelling a certified copy of an order/ judgment of High Court.

Judgment is dictated to a stenographer either in open court or in chamber. Stenographer transcribes the judgment in duplicate and after carrying out the correction if any places it for signature of the Judge. After the Judge signs the judgment the same is pronounced in the open court, if not dictated in court. It is sent to another section for typing the cause title. After cause title is typed, the judgment along with the cause title is taken back to the stenographer of the Judge. There an entry is made in a register and thereafter the copy of the judgment is sent to the judgment section of copying section. Original judgment along with the file of the case is sent to the concerned section.

After pronouncement of judgment, the process of preparation and typing of cause title and routing the same through stenographer to the copying section takes considerable time.

A copy application with court fee stamp affixed is filed. If you want the copy urgently another application is to be separately filed with additional court fee. The application filed are distributed by the section officer concerned among the court fee examiners. They scrutinize the application. If it is free from defect the applications are sealed and court fees are cancelled by a class IV employee. The details of applications are entered in the court fee register separately kept for that purpose. Thereafter the applications are taken by a Class IV employee to copying section. It will be distributed among the concerned copyists. There are different seats for Appeals, Original Petitions, Civil Revision Petitions, Criminal Cases, pending matters etc. Those copyists enter the application in the "A" register maintained by the copying section. It is recorded in 'B' register also. 'A' register is open for inspection by advocate, clerk and clients. 'B'register is kept by the office.

Thereafter all the applications are sent to the judgment section, where the judgments are preserved. The judgments might not have reached that section by this lime in case of fresh disposal. Copy applications are sorted out and kept in order of priority based on application number, year wise. When the judgment reaches the section, application will be taken up and the application along with the judgment will be sent to another seat. A notice will be prepared by the assistant concerned indicating the value of court fee stamps to be produced in the notice book and the carbon copy of the same will be affixed on the notice board.

Therefore the advocate/clerk will produce the required stamps, before that assistant. The production of stamp will be noted on the copy application and the receipt of stamp will be accounted in a register namely 'Receipt'.

These stamps are kept in safe custody. Copy application with the judgment will be sent to photo copying section/typing section. The required copies are taken in that section. There is a procedure of comparing the original with the copy. But this requirement is dispensed with in cases where photocopies are taken. Copy of the order/judgment along with the original is the taken to the cabin of Registrar for affixing Court Seal on each page of the copy. Then the original judgment and copies taken (unsorted) are taken to the judgment section. There 'Assistants' sort the certified copies, enter the details in 'B' Register kept there. Thereafter retaining the original judgment in the judgment section copies (not stapled or stitched) are taken to issuing seat. That dealing Assistant is expected to collect the required stamp, already produced, from the concerned Seat and affix the stamps on the copies and to make necessary endorsement on the face of the docket. Then the copy is placed in the 'A' Register and taken lo the Examiner. After thorough scrutiny to find out whether the copy is legible and complete and affixed with the required stamp etc., the Examiner subscribes the signature certifying that it is the true copy.

Thereafter details are entered into ready list. A notice will be published fixing the date for appearance for collecting certified copy. When the Counsel/Clerk/Party appears, copy will be delivered after taking signature in the 'A' Register. More or less same if not more complicated is the procedure for obtaining certified copies of any other documents including those of pleadings. More than 25 employees in various grades work in the copying section of the High Court, involving an annual expenditure of many lakhs. The fees levied will not be enough to meet the expenditure incurred. In addition to this lot of work is done by advocates and their clerks to expedite matters. The evening crowd at the copying section is parallel to the one before a movie house on the day of release of a box office hit.

This bullock cart procedure can be substituted by a simple, less costly procedure. Sufficient number of Stenographers must be provided. The judgments including cause title must be typed by them. All orders/judgments can be made available on computer. The certified copy can be served on demand by getting a print out from the computer and certifying the same on the spot against payment of prescribed fee, commensurate with the expense involved. This will not only reduce the work load but also improve the image of all those who are responsible for administration of justice including. Bench and Bar.

Presidential Assent - Lacuna in the Constitution

(By P.K.R. Menon - Senior Advocate, Ernakulam)

Article 111 of the Constitution deals with Assent to Bills by the President of India.

Article 200 deals with the Assent to Bill by the Governor.

Article 201 deals with Assent to Bill reserved by a Governor for the consideration of the President.

For convenience, I shall extract the three Articles:

"111. Assent to Bills.-When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill or that he withholds assent therefrom:

Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with the message requesting that they will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom, (underlining supplied)

200. Assent to Bills.-When a Bill has been passed by the Legislative Assembly ofa Slate or, in the case of a State having a Legislative Council has been passed by both Houses of the Legislature of the Stale, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom: (Underlining supplied)

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

201. Bills reserved for consideration :When a Bill is reserved by a Governor for the consideration for the President, the President shall declare that he assents to the Bill or that he withholds assent therefrom:

Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the Slate together with such a message as is mentioned in the first proviso to Art.200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.

Articles 111 and 200 do not create any difficulty or problem for implementation by the concerned authorities.

Under Article 111 of the Constitution when a Bill is passed again by the Houses with or without amendment and presented to the President I'or assent the President shall not withhold assent therefrom.

Under the main provision of Art.200, the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President. The second proviso to Art.200 also contemplates a situation of reservation by the Governor for the consideration of the President. In the former case the reservation by the Governor for the consideration of the President is discretionary and in the latter case it is mandatory for the Governor to refer the Bill for the consideration of the President if according to the Governor the situation is one as contemplated under the second proviso to Art.200.

As noted above, under the two situations, the Governor can or has to refer the Bill for the consideration of the President and the President has to consider the Bill under Art.200 of the Constitution.

Under the main provision of Art.201 the President shall declare that he assents to the Bill or that he withholds the assent therefrom.

Under the proviso to Art.201, in a situation where the President directs the Governor to return the Bill to the House, and when a Bill is so returned, the House shall reconsider and if the House with or without amendment again passes it, it shall be presented again to the President for his consideration.

In the absence of a provision similar to the one contained in Art.111 (wherein once the Bill is passed again and presented to the President for assent, the President shall not withhold assent therefrom) in Art.201 the President can once again very well invoke the power vested in him under the main provision of Art.201, that is, the President shall declare that he assents to the Bill or that he withholds assent therefrom.

In the light of the above in the case of Bill referred by the Governor to the President if the President once again withholds assent therefrom, the Bill will not become law and there is no way suggested in the Constitution to implement or execute the will of the legislature as in the case under Arts.111 and 200 of the Constitution wherein once, the. House reconsiders the Bill, the President shall not withhold assent.

A Comment on 2001 (2) KLT 767

(By Yesudasan Varghese, Advocate, Thiruvananthapuram)

The Honourable High Court of Kerala, very recently in Gopalakrishnan v. State of Kerala 2001 (2) KLT 767 ruled that 'the accused has no absolute right to cross examine the prosecution witnesses under S.244, Cr.P.C With utmost respect to the Honourable Justice and the High Court, the writer begs to disagree with the said ruling firstly for the reason that the said section neither confers an absolute right on the prosecution to examine its witnesses, as such. What is exactly provided under S.244 is a combination of a duty or power of the court coupled with a right of the prosecution. The right accrued to the prosecution thereby is a right to a hearing and the production of evidence (not witnesses as such). The examination of witnesses for prosecution is only an incidental or consequential right, accruing therefrom. It is humbly submitted that neither Criminal Procedure Code nor Civil Procedure Code confers on either party an absolute right to examine their respective witnesses. The right to examination of witnesses is conferred by the Evidence Act by necessary implication. According to the Evidence Act, when there is an examination in chief of a witness by any party, it must be followed by a cross-examination, unless waived by the adverse party (Please see S.138).

The judgment proceeds to record that from a reading of sub-s. (1) of S.244 along with sub-ss.(4) and(5) of S.246 it is clear that the legislature does not intend to confer on the accused an independent right of cross-examination under S.244 of the Criminal Procedure Code (Sic). It is humbly submitted that the provisions under sub-ss.(4) and (5) of S.246 only indicate the intention of the legislature to afford an opportunity to the accused to cross-examine the prosecution witnesses who were earlier examined under S.244 and whose cross examination was either waived or incomplete or could not be had for any reason whatsoever. Because oral evidence cannot be good evidence unless it is gone through the three stages enumerated under S.137 of the Evidence Act and tested under provision of S.138 of that Act. Of course. the concerned parties have a right to waive either cross-examination or re-examination.

It may also be please noted in this context that even though the words, "the Magistrate shall proceed to hear etc." in sub-s. (1) of S.244 have been used, it is not mandatory to hold an enquiry under that section as the word, "shall" can mean "may" in view of the provision under S.246(1) which lays down that "if, when such evidence has been taken, or at any previous stage of the case......etc". Under the circumstance, the observation recorded in para-4 of the judgment that the trial in a warrant case instituted otherwise than on a police report does not start till the evidence is taken under S.244 of the Criminal Procedure Code' (Sic) is respectfully dissociated with. It is also humbly submitted that any criminal trial starts only with the framing of charge and, to be more precise, by the reading over of the charge to the accused.

I further most humbly disagree with the observation made in the judgment (para-4 itself) that even if no opportunity is given to the accused to cross-examine the witness during the enquiry, no prejudice would be caused to him, since he gets the opportunity to cross-examine the witnesses at the trial stage', (sic). If it is so, the witnesses get an additional opportunity to learn and discuss what they have already told the court, to get advised and tutored on the anticipated questions in cross, there by mitigating the prospect of a good cross-examination and then come prepared to stand the test of cross-examination at the trial stage. Of course, the accused also get a similar opportunity of learning and discussing the deposition in chief and prepare unanticipated questions in cross as far as possible. However, tension continues in the minds of the witnesses examined in chief as to what is going to be asked in the cross and in the mind of accused as to what is going to be answered in the cross till the suspense is broken at the trial stage. So, it cannot be said that no prejudice is caused to the accused if he is not allowed to cross-examine witnesses at the enquiry stage. It can be said that prejudice is caused to both parties. So, it is always fair and safe to avoid a contingency. Please also note that the postponement of the cross-examination of a prosecution witness is a discretion of the court under the proviso to S. 242 of the Code in the trial of a warrant case.

S.309(1) of Criminal Procedure Code lays down that "in every enquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded" obviously, the section is applicable to an enquiry also and there is nothing to indicate that a witness cannot be cross-examined in an enquiry. The words, "have been examined" must only mean that the witnesses have been examined in accordance with the provisions under the Evidence Act. So also, S.244 does not expressly or impliedly prohibit the cross-examination of a prosecution witness. It is not a discretion of the court to permit cross-examination at the enquiry stage as observed in the judgment, but an independent right itself.

For the above reasons, it is humbly submitted that the refusal of a Magistrate to allow the accused to cross-examine the witnesses examined under S. 244 of the Criminal Procedure Code is per se illegal.

It is humbly submitted further that the law as laid down by the Supreme Court in AIR 1979 SC 94, which the Honourable High Court has relied on the case, ruling that once charge is framed Magistrate cannot cancel it or discharge the accused - Order of discharge after framing of the charge is illegal, etc. does not now hold good in view of the decisions of the Honourable Supreme Court itself in Pepsi Foods v. Special Judicial Magistrate 1997 (9) Supreme 279, laying down that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless and in Satish Mehra v. Delhi Administration 1996 (5) Supreme 742 holding that when it is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure.

The most humble submission of the writer is that the framing of a charge is only an interim order which does not come within the ambit of S.362, Cr.P.C. and hence it can be reconsidered, altered or rescind by the same court that framed it.

"Soumini" Not Sound Law

(By M.R. Rajedran Nair, Advocate)

Soumini, found guilty offence under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rupees one lakh, and to undergo rigorous imprisonment for one year more in default of payment of fine, by the 1st Additional Sessions Judge, Kozhikode. The High Court of Kerala, in the decision reported in 2001 (2) KLT 546, set aside the conviction and sentence and set her at liberty. Her acquittal by the High Court is just and proper for the reason that there was non-compliance with the mandatory requirements of Ss.42 and 50 of the NDPS Act. The High Court relied on the decision of the Supreme Court in Koluttumottil Razak v. State of Kerala (2000 (4) SCC 465).

But incidentally, in para 6 of the judgment, the following observations were made:

"Admittedly, Pw-1 was Additional Sub Inspector of Nadakkavu Police Station on the date of incident. The prosecution has no case that he was the Station House Officer at the relevant time. So as per S.41, PW-1 is neither empowered officer nor authorised officer. It is true that  there is a Government Notification G.O. (M.S.) 146/90/TD dated 22.10.1990 whereby the Government of Kerala had empowered all the officers in the Police Department of and above the rank of Sub Inspector of Police and all officers in the Excise Department of and above the rank of Excise Inspector to exercise the power and perform the duties specified in S. 42 of the NDPS Act within the area of their respective jurisdiction. But the notification has not been incorporated as Rule. As per R.78(3) [Sic. S. 78(3)], the same has to be placed before Legislature. Nothing has been brought to my notice to show that the notification has been placed before the Legislature and it has become a Rule. Hence it is to be found that PW.l is neither an authorised officer nor an empowered officer to detect the offence."

It is submitted that the finding that PW.l, the Additional Sub Inspector of Police Nadakkavu Police Station, was neither an authorised officer nor an empowered officer does not appear to be correct proposition of law. If that be the law it will have the startling consequence of almost all cases under the NDPS Act, 1985 ending in acquittal. An empowered Officer or authorized Officer need not necessarily be a Station House Officer. According to the relevant portion of S.41 (2) of the NDPS Act, any such officer of the Revenue Drugs Control. Excise. Police or any other department of a State Government, as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing, that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed etc... may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable, to arrest such a person, or search a building, conveyance or a place, whether by day or night, or himself arrest a person or search a building, conveyance or a place.

The learned Judge noticed that as per the Government Notification G.O. (M.S.) 146/90/TD dated 22.10.1990, the Government of Keralaempowered all the officers in the police department of and above the rank of Sub Inspector of Police etc... to exercise the power or perform the duties specified in S.42 of the NDPS Act. It cannot be disputed that PW-1, Additional Sub Inspector of Police is an officer of the rank of Sub Inspector of Police. But the court found that he is neither an authorised officer nor an empowered officer to detect the offence for the reason that the notification has not been incorporated as a Rule and nothing had been brought to the notice of the Court to show that the notification had been placed before the Legislature and has become a Rule.

Obviously, the Court was referring to the requirement under s.78(3) of the Act, according to which

"Every Rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before the Legislature of that State."

The requirement of laying before die Legislature of the State is only with respect to Rules made by the State Government under the powers conferred by S.78 of the Act. S.77 requires that every Rule made under the Act by the Central Government and every notification issued under Clause (xi) of S.2, S.3 and clause (a) and explanation (1), (2) of S.27 shall be laid, as soon as may be after it is made or issued, before each House of Parliament. There is no requirement of laying the orders passed by the Central or State Government in exercise of the powers under S.41(2) before he Houses of Parliament or Legislature of the State. The Government orders will be effective as soon as it is published in the official Gazette. There is no requirement of incorporating the notification as a Rule.

Even in a case where there is requirement of laying before Parliament or State Legislature, the Rule or Notification will not always automatically become invalid for non-compliance with that requirement. The requirement of laying Statutory Rules or notifications before the Parliament or State Legislature is part of the mechanism of Parliamentary control of delegated legislation. There are different modes of laying. The rules and notifications may be simply laid as in S.78(3), or they may be subject to negative resolution as in S.77, or they may be laid with a stipulation that they would expire unless confirmed by affirmative resolution, or they may be laid in draft. In any case, the requirement is only to the extent stipulated in the parent Act. The Apex Court in Bharat Hari Singhania v.C.W.T. (1994 SCC Supp. (3) 46) held

"The requirement of laying before the House is one form of Parliamentary Control. But by that means, the rules does not acquire the status of the Statute made by the Parliament. Indeed the rules are effective as soon as they are made and published (emphasis supplied)".

In Atlas Cycle Industries v. State ofHaryana (1979 SCC (2) 196) the Supreme Court held that by S.3(6) of Essential Commodities Act, 1955 which ordained that every order made under that section by the Central Government or by any Officer or authority of the Central Government shall be laid before the both Houses of Parliament as soon as may be, after it is made, the legislature never intended that non-compliance with the requirement of laying as envisaged therein should render the order void.

The legal position was reiterated in State of M.P. v. Hukum Chand Mills Karmachari (1996 (7) SCC 81) in relation to S.95(3) of Madhya Pradesh Co-operative Societies Act, which reads as follows.

"95(3). All rules made under this Act shall be laid on the table of the legislative Assembly.

Even otherwise, there is always a presumption of validity of legislation including subordinate legislation. Even when there is a requirement of laying before Parliament or State Legislature, the subordinate legislation will not become invalid for not positively showing that the notification was placed before the Legislature. The burden to prove positively that the subordinate legislation is invalid for non-compliance with the laying procedure before the Parliament/State Legislature will be with the person who challenges the Rule/Notification.

In this background, it is submitted that while the acquittal of Soumini is right in view of the findings regarding non-compliance with Ss.42 and 50 of the NDPS Act, the reasoning for holding that the Additional Sub Inspector of Police, Nadakkavu Police Station, is neither an authorised officer nor an empowered officer to detect an offence is not correct statement of law.

Shocking Arrears - Shaking Confidence

(By V. Bhaskaran Nambiar, Retd. Judge, High Court of Kerala)

The shock that there are huge arrears of cases waiting to be disposed by various courts cannot shake the faith and the confidence in the Judiciary.

2. Akio Morita, Chairman of the Sony Corporation once stated that the accent should be to find out how the mistake was committed and not who committed the mistake.

Gravity off the Problem

3. Keeping cases pending in the court of an inordinately long time makes mockery of our sense of justice. They are all cases where justice is, in fact, denied. In 1997, Kerala High Court had 220 sitting days. The total filings for the year exceeding 40,000 and the disposal above 35,000. But then, the number of pending cases upto 31.12.1997 is a whopping 79,000 and odd. Of these how many have been pending for even ten years is not known.

Why this Arrears?

4. Formerly people approached Courts only as a last resort for redressal of, mainly, their personal grievances. Now people rush to court as the first step for redressal of their public grievances. The shift is from the individual to the community. Formerly, very few persons were aware of the legal problems and conversant with the remedies available. Now almost all are conscious of the constitutional rights and remedies - of course forgetting their constitutional duties. With the large increase in filing, there is likely to be delay in the disposal also. The trust in the judiciary, its impartiality, its independence, its wisdom, and its boldness in the dispensation of justice attract crowds and cases to courts.

"HOW" TO WIPE OFF ARREARS - BY FASTER DISPOSAL

A. "Instant Disposal"

5. It is necessary that cases are disposed of without any appreciable delay. It is said that this object can be achieved by a faster disposal. Of course, there can be direction for quick disposal and directions are also often issued. These directions cannot however be understood as directions for disposal without hearing the parties, without considering the contentions and without deciding on the merits of the case. A faster disposal, after giving fair and reasonable hearing, quickly dealing with the crux of the problems and squarely dealing with these questions on merits will be ideal. But if there is an obsession to dispose of cases, without anything more, it will be a travesty of justice. Disposal can be fast, but not at the expense of justice. Disposal cannot be for "disposals sake". The anxiety to dispose cases faster cannot tend to impatience on the bench and intolerance of advocates at the bar.

A Judge is not remembered for the speed with which he disposed of his cases. He is remembered, respected by posterity through the judgments he delivered and not in the number of cases he disposed. The quality of the judgments qualifies for immorality. This is forgotten by many and remembered by few!

B. "Studious Approach"

6. Faster disposal of cases has different facets of approach. I remember Justice Hidayatulla mentioning in his "Miscellany" that he was flabbergast at the large number of 'briefs' brought to his Bunglow, on the first day of his assumption of office as Judge of the Supreme Court and wondered whether he could finish reading all the papers even if he sat for the full night. Next day, one of his colleagues advised him to read only 50% of the briefs starting from the bottom, reminding that the top 50 would have been read by the senior Judges: The practice now followed in the Supreme Court is for the Judges to do their 'homework' and then when the cases are called ask the counsel one or two pertinent questions, the answers to which decide the fate of the cases.

7. This is substantial work for the Judges, but little wastage of time in court. This method can be safely worked at least by the High Courts. Sometimes it happens, that the Judge may read and "study" the brief the previous day, but still he could like to hear the cases at length and then decide. This is criminal waste of precious judicial time. No Judge can convince a counsel that his client has no case. If the client has no case the Judge decides against him, not necessary to convince the counsel.

8. There is everything to be gained and nothing to be lost when the Judge reads the "briefs", understands the issues in controversy and focuses his attention only to those vital aspects. There is no necessity for a detailed hearing thereafter.

9. I remember a case where a Judge known for his learning and studious habits, his penchant for popularity and his "pretence" that he did not read a single brief at home, called me to argue my case for admission. In the middle of my submission, the Judge asked me what I have to say about paragraph 32 in the judgment of the lower court. I pretended that I was seeing paragraph 32 for the first time and in view of my ignorance unpreparedness' to meet the Judge's point, the Judge scored and my appeal was admitted!

C. "Limited Discretion"

10. I shall rely on my fairly long practice at the Bar and my comparatively short tenure on the Bench to recall one mode of dispensation of justice.

A Judge may be impressed at the first hearing and may be inclined to grant an ex-parte stay. He would, however, rightly be interested in hearing the opposite side, usually the Government in writ matters, before the interim stay is made absolute. He therefore restricts the interim stay for a limited period, in the fond hope that all the necessary facts will be placed before the court before the expiry of the interim order. The object is admirably commendable. The Judge cannot be faulted. But what happens is a different story. There is no cause shown for vacating the interim stay. No materials are collected, prompt instructions are not received in time and the interim order for the limited period gets extended from time to time. The cause list is flooded with miscellaneous petitions. The Court has time only to pass orders on the miscellaneous petitions and no time to dispose of the case finally. The one method is to stop giving interim relief restricted to small periods. An ex-parte interim order can be brought up by concerned parties/counsel for being vacated when they are ready. Interim relief restricted to a limited period is thus a drag on faster disposal.

D. The Bottleneck of disposal

11. We have an archaic procedure, an unnecessary complicated procedure, a procedure intended to protract proceedings and perpetuate injustice, the CIVIL PROCEDURE CODE. The procedure has to be simplified. The first step to reduce the mounting arrears should be to scrap the Civil Procedure Code. This can be done by an appropriate legislation or by judicial interpretation that all the provisions of the code are merely 'directory', and a failure to follow the prescribed procedure does not entail any rigid consequences.

12. It is sufficient if every Court/Tribunal follows the principles of natural justice. The parties to the cases should be given a reasonable opportunity for a fair hearing. Both sides can be heard, and all sides can be given opportunity to adduce the necessary evidence. Photostat copies certified to be true can be admitted in evidence without insisting on the originals unless there is dispute about the genuineness of the copy or the original. We are aware that some times chief examination of even one witness in court takes several days. This can be avoided by chief examination of a witness on the basis of his affidavit on which there can be cross examination.

13. Lengthy Judgment

At the trial stage, the judgments necessarily have to be lengthy, the pleadings have to be summarized, the issues have to be framed, the evidence has to be considered, the points have to be decided and the conclusion recorded. As the case goes to higher courts, the length of the judgments can be considerably reduced, and a stage may be reached when it is no longer necessary to summarize the pleadings, mention about the rival contentions advanced and refer to all the decisions cited in the Bar. When the law is already settled by the decision of the higher court there is, I think, no necessity to refer to all the previous decisions on which the Supreme court itself based its decision. The latest decision of the Supreme Court is more than sufficient for disposal. Brevity can be the hall mark of a good judgment.

14. Additional Courts & Judges

It is usually and freely suggested that there has to be an increase in the number of Judges, and increase in the number of Courts to cope up with the mounting arrears. That may to some extent - to a small extent be helpful. It is not invariably a safe, sure practical solution "to remedy an alarming practical situation".

The Constitution was amended in 1977 authorising Parliament to establish Administrative Tribunals, to specify their jurisdiction and powers etc. Administrative Tribunals were constituted to reduce the burden in various courts including High Court and to give speedy relief to the aggrieved. After about 15 years, taking stock of the performance of the Tribunals the Supreme Court in Chandrakumar's case observed, "The reasons for which the Tribunal were constituted still persist; indeed those reasons have become more pronounced in our times". The Supreme Court continued, "That the various Tribunals have not performed up to expectations is a self evident and widely acknowledged truth". Authenticated reports mentioned "Not all of them, however, have inspired confidence in the public mind. The reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach.

The failure of some of the Tribunals for having not performed upto expectations, is mainly because the recruitment and appointments were not made with reference to the experience and practice required in the specified field, namely service law and the Tribunals became only the "training ground" to "learn" service law for the first time. By the time they team this branch of the law, the arrears would have already soared and it would be time for leaving the office. Additional court/Tribunals can therefore be constituted if there are persons competent and experienced who can deal with the subject branches of law where the arrears require to be reduced. Thus a criminal lawyer cannot be expected to deal in service law as effectively as a person who have been dealing with service cases. Similarly, a sound Civil lawyer Judge cannot be expected to reduce the arrear of case on the criminal side or in taxation matters. Thus if the various branches/heads where there are arrears are identified and an attempt is to made to find qualified, competent and experienced persons who can tackle the problem of arrears with ease and confidence, the appointment of new Judges and the addition of courts are most welcome.