A Critical Note on 2000 (1) KLT Journal 35

(By J. Krishna Kumar, Advocate, Ernakulam)

This article is intended to critically analyse the article published in 2000 (1) KLT Journal 35, written by Sri. Kausar Edappagath, Advocate. In that article the learned Author has criticised the Judgments passed by the Honourable High Court in Jancy Joseph v. Union of India (1999 (1) KLT 422) and in Malappuram Private Bus Operators Association v. Mohan (1999 (2) KLT 898).

In Jancy Joseph's case (supra) the High Court reversed the Consumer Form's order by holding that the Consumer Forum shall not order the arrest or detention of a woman in execution of a decree for payment of money and also held that S.56 of C.P.C. is squarely applicable to execution proceedings before Consumer Forum. In Malappuram Private Bus Operator's case (supra) the High Court reversed the order of Malappuram Consumer Disputes Redressal Forum and held that the Bus passenger is not a consumer as defined under S.2(d) of Consumer Protection Act, as far as Regional Transport Authority is concerned, and further held that the Consumer Forum has no jurisdiction to try the case relating to fare stage of Bus Service.

The learned author of the said article is attacking the above 2 decisions mainly on two grounds. First reason is that, as Consumer Protection Act has created a hierarchy, the aggrieved party's remedy is only to file Appeal before the higher authority prescribed in the Act and the order of Consumer Forum is not amenable to writ jurisdiction. Second aspect is that in Jancy Joseph's case (supra) High Court has extended application of provisions of C.P.C. in execution proceedings before Consumer Forum. According to the learned author it is against the legislative intent and the Act has restricted applicability of C.P.C. only to certain purposes prescribed under S.13(4) of the Consumer Protection Act. Except for the purposes prescribed in S.13(4), provisions of C.P.C. is not applicable to proceedings before Consumer Disputes Redressal Forum, the author opines.

In this context first question to be discussed is that, whether the Consumer Forum is amenable to writ jurisdiction?

Under Art.227 of the Constitution, the High Court has the power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power of superintendence conferred on High Court is very wide. That does not mean that the power is unfettered. This power is extraordinary in nature which is to be exercised in appropriate cases in order to keep the subordinate courts within the bounds of their authority and to provide justice in demanding circumstances. In the following instances order of courts, Tribunals and authorities are subjected to judicial review.

i) When there is want or excess of jurisdiction

ii) When there is procedural irregularity or disregard of natural justice

iii) When there is error of law apparent on the face of the record but not error of fact.

In the above circumstances High Court can exercise writ jurisdiction to control the authority. In State of U.P. v. Mohammad Nooh (AIR 1958 SC 86) the Supreme Court hold that 'writ of certiorari' is issued to a body performing judicial or quasi judicial function for correcting error of jurisdiction, as and when an inferior court of tribunal acts without jurisdiction, or in excess of it, or fails to exercise it. In a recent decision (Alice Kutty v. Kadambazhappuram Grama Panchayat (1996 (2) KLT 203) the High Court reiterated this dictum and further held that in such cases High Court can invoke its power under Arts. 226 and 227 of the Constitution. In Syed Yakoob v. Radhakrishnan (AIR 1964 SC 477) the Honourable Supreme Court held that an error of law which is apparent on the face of the record can be corrected by a writ of certiorari.

A writ of certiorari is issued against a court or Tribunal when it acts in flagrant violation of principles of natural justice. If the order of the authority is in violation of natural justice, without preferring appeal, the aggrieved party can approach the High Court by invoking its extraordinary jurisdiction. In such cases alternative remedy is not a bar to invoke extraordinary jurisdiction of the High Court. In Pradeep v. Kandanassery Panchayath (1996 (2) KLT 775) the Honourable High Court held that a writ of certiorari can be issued in a case where there has been a denial of natural justice before a court of summary jurisdiction dispute exercise of alternative remedy.

Even if the hierarchy of forums are created under Consumer Protection Act, the power of judicial review vested with High Court clothed with constitutional mandate cannot be taken away. It is also unwise and highly risky to do so. The constitutional safeguard provided to protect the citizens from the arbitrary acts of the authorities cannot be lightly converted by new legislation. In Sajeevi v. State of Kerala 1994 (2) KLT 127 (FB) High Court held that existence of alternative remedy does not taken away the jurisdiction of the High Court to grant relief.

In Keshavananda Bharath's case (AIR 1973 SC 1461) it was held that judicial review is an integral part of the constitutional system and basic feature of constitution. In a yet another landmark decision (Chandrakumar v. Union of India (AIR 1997 SC 1125 at p. 1150) this dictum was reiterated by the Hon'ble Supreme Court. The position in common law is same that of our system. English courts are also invested with writ jurisdiction as that of High Courts in India. In Electricity Commission case (1924) 1 KB 205 Lord Atkin J., observed that 'whenever anybody of persons having legal authority to determine questions affecting the rights of the subjects and having the duty to act judicially, and if they act in excess of their legal authority, they are subjected to the controlling jurisdiction of the Kings Bench Division exercised in the writs'. In this context I would like to quote from the speech delivered by his Lordship Justice K.T. Thomas reported in 1997 (2) KLT Journal 23 that "All public authorities are under the jurisdiction of law and that judicial Review is a power inextricably intervened with the higher court of land, namely High Court and Supreme Court. Based on all the above aspects and decisions discussed supra, one can firmly agree with the proposition that order of consumer forum is amenable to writ jurisdiction.

The second point to be discussed is whether the High Court has erred in extending S.56 of CPC in execution proceedings before Consumer Forum.

According to the learned author of the Article in 2000 (1) KLT Journal 35, provisions of C.P.C. is made applicable in a proceeding before Consumer Forum, is only for limited purposes mentioned under S.13(4) of the Act. I am of the firm opinion that the High Court has rightly held that the order of Consumer Forum shall be executed in the same manner as a decree of a Civil Court. S.3 of the Consumer Protection Act clearly prescribes that the Act shall be an addition to and not in derrogation of other laws for the time being in force. By conjoint reading of S.3 and S.25 of the Act legislative intent is clear and unambiguous. Even though the Consumer Protection Act is a benevolent legislation, Consumer Forum can render justice only in accordance with law in force. In M.l. Builders Pvt. Ltd. v. Radhay Shyam Sahu (1999) 6 SCC 464 para 73, Supreme Court observed that 'Justice is to be rendered only in accordance with law'.

Third point to be discussed is whether the High Court has erred in legal and factual grounds in Malappuram Private Bus Operators (supra) case.

According to the learned author of above article the Consumer Forum has power to decide the fare stages as per S.3 as well as under S.1(4) of the Act. He also opined that the bus passenger is a consumer as defined under S.2(d) of the Act. In my view Consumer Forum has no jurisdiction to deal with farestages or fare of stage carriage in the light of bar prescribed to Civil Court's jurisdiction under S.94 of M.V. Act. Moreover S.3 of the Consumer Protection Act specifically states that the Act is not in derrogation of other laws for the time being in force. As Motor Vehicles Act is a special enactment which governs Motor Vehicles, for the fixation of fair stage etc. it will prevail over the Consumer Protection Act. The maxim 'generalia specialibus non derrogat' which indicates that the provisions of Special Act overrides the provisions in General Law. The High Court rightly held that, a bus passenger is not a consumer as far as R.T.A. is concerned. As R.T.A. is not providing any service to the bus passenger, there is no deficiency of service from the part of R.T.A. Likewise the bus passenger is not paying any consideration to the R.T.A., the bus passenger is not a consumer as far as R.T.A. is concerned. Hence it is clear that the bus passenger is not a consumer and lacuna in fare stage fixation is not a deficiency of service from the part of the R.T.A.

On the basis of the above discussions with due respect to the learned author of above referred articles, I am constrained to state that the said article is written without considering the legal and factual aspects relevant to the issue and the said article unnecessarily subjected two well reasoned judgments of the Hon'ble High Court to unwarranted criticism. 

Nobility of Legal Profession

(By N. Dharmadan, Advocate, Ernakulam)

This noble profession of lawyers, viz., the system of engaging trained persons by litigants for arguing the cases on his behalf before a Court of law is an institution of ancient origin. If we trace the genesis of advocacy it can be seen that originally it was really a free service for others. In Greece there was a system to allow persons to appear gratuitously in court for litigants and speak on his behalf. In Rome advocacy took its earliest form in the relationship between patron and his client to explain the law by patron on behalf of his client. In England during the reign of Henry Ilnd certain persons having clerical training were appointed to defend the actions. For centuries in England legal knowledge was the monopoly of priests. In India it has an ancient origin. Originally persons who are well versed in law plead for others as their private agents without any fees. It was considered dishonourable to charge fees for sending the legal advice and defending cases.

Legal profession unlike other professions is honourable and prestigious. The advocates are addressed with a prefix 'Learned', because it is intended for service to the people in protecting their personal liberty and right to property. It is honourable because it is not a business; but only a service. The greatness, dignity and honour of the legal profession lies in the Code of its ethics governing the relations of lawyers between themselves and with others in their professional matters and dealings. The failure to observe the ru'es of advocacy will degenerate it into a trade or a means for accumulation of wealth. It is not a vocation for private gain.

It has long been the axiom of the legal profession that any form of self advertisement by a practising member of the Bar is contrary to etiquette. It is regarded as unprofessional for an advocate to advertise oneself directly or indirectly. Such a course of action tends to lower the dignity of this honourable profession and is akin to touting. The Advocate should not seek clients, but this duty is to give legal assistance to those who seek assistance. Solicitation of work in any form is taboo. In fact it is prohibited in foreign countries for it is considered undignified and a professional misconduct.

Solicitation which is unprofessional may take numerous forms. It is said "there can be many ways which an Advocate, intending to advertise himself, may adopt and yet try to conceal the fact that he is so advertising. "The issuing of circular letters or election manifestos by a lawyer with his name and address printed therein, appealing to the members of his profession practising in the lower court, who are of course in a position to recommend to the counsel practising in the High Court, is obviously an indirect way of advertisement". An Advocate sending a circular post card with the name, address and description himself would amount to an advertisement on his part therefore of it is an improper conduct. A person canvassing for votes is deemed touting in the State. The sending of clerks and deputing agents to various districts by an advocate necessarily mean approaching directly the Advocates practising in the Subordinate Court. This would undoubtedly be advertising in an indirect manner and is certainly reprehensible. Another cheap way of advertisement is writing articles and giving opinions for publication in news papers, when the writer describes himself as an Advocate practising in a particular court. They are ill motivated because such discussions on controversal topics relating to legal profession, pertaining to law, Court or the Bar Council thro' media are really intended to bring the lawyer himself to the notice of other lawyers and litigant in the mofussil in the hope of attracting work. All such practices must be condemned as they amount to flagrant breach of professional etiquette. They are in fact really intended for getting unfair advantage over other members of the Bar and will amount to professional misconduct liable to be proceeded against by the Bar Council.

In England a barrister is entitled to personal advertisement as it is necessary for the proper exercise of his profession; but it would be unprofessional to do or allow to be done with the primary motive of advertisement. A practising barrister may not appear robed on television oV on film, but there is no objection in exhibiting his portrait in robes in a particular place. An advocate should not permit his name to appear in trade directories or International Law lists published by authorities. He should not permit himself to be described in news paper articles as practising in a particular division of the High Court (Halsbury Laws in England page 1196, Vol.III).

A barrister announcing himself in a newspaper that he is open to consultation between certain hours, giving interviews or supplying information to the press concerning his life, practice, achievements, earning, contributions to fund, organisation, society, etc. are professional misconduct to be condemned. Publishing his photograph as a member of the bar in the press or any periodical will be treated as advertisement and unprofessional action.

A practising barrister may broadcast lectures on law or on quasi judicial subjects only with the prior consent of the Bar Council. He cannot take part in a film on a legal or quasi legal subject without prior sanction of the Bar Council, but in the case of non-legal subject, he may do so under his own name without disclosing his position as barrister practising in courts. It is contrary to professional etiquette for a barrister to answer legal questions in news papers and periodicals disclosing his name and status either directing or indirectly for publicity.

A member of the Bar should not write articles with regard to pending cases nor in cases where the time for appeal has not expired. He should not give an interview to a press representative on any matter in which he has been, or is engaged as a counsel. He should not furnish signed legal photographs for publication. Above all he should not blow his own trumpet and talk on his forensic ability.

All these are taboo for an Indian lawyer as well; but they are invariably overlooked and this profession is now carried on for amassing wealth and fame. The advocates are now forgetting the fact that they are not tradesmen, but only public servants and officers of the Court to help the court in coming to the right conclusions both on questions of law and facts. They are the "guardians of three greatest gifts of modern civilization viz., order, justice and liberty". They stand for legal order which is one of the noblest functions in the society.

But in recent times, the professional people are forgetting all these and concentrating on self, power and fame. This is an unhealthy trend; if this trend is encouraged nobility of this profession will be lost in the course of time and it may also lead to mutual jealousies and competition among the lawyers.

A professional lawyer must always remember the words of Lord Macmillan that "no other profession touches human life at so many points. The legal profession, by its ethics, is a carrier of service to the community and not a trade". Men of bad character and antecedence cannot but disgrace the profession even if their bad conduct does not extend to the professional sphase. Young B. Smith, Dean of Columbia University School of Law, once said "If you would materially improve the ethical standard of the profession, law study must be so reorganised as to arose in the future members of the Bar because, I think that the present members are beyond redemption - a higher idealism and a greater sense of public responsibility. This can best be done by placing a greater emphasis upon the social implications of legal rules and legal practices, thereby revealing to the students the true functions of law and of the lawyer'.

Concurrent and Consecutive Sentence

(By S.A. Karim, Advocate, Triruvananthapuram)

In a calender case No. 288 of 1993, under Ss.457 and 380 read with 34 Indian Penal Code, the learned First Class Judicial Magistrate of Neyyattinkara, a southern most Court of Kerala, convicted the accused under both the sections and sentenced to undergo rigorous imprisonment for two years each and sentenced to pay fine of Rs.500/- each. In default of fine, simple imprisonment for a period of six months more. The sentence shall run consecutively. The accused went in appeal, but the learned First Additional Sessions Judge, Thiruvananthapuram dismissed the appeal outright. So, the conviction and sentence stand confirmed. It means the convicted shall undergo prison for two years under S.457 first and then shall undergo prison for another two years under S.380 and lastly he shall further undergo prison for six months in default of fine. In the instant case, the convicted shall undergo four and a half years prison continuously. This is the effect of consecutive sentence of imprisonment. There are similar instances. If the sentences were concurrent, the convicted would have completed the prison term in two years. Therefore, one desires to know whether law permits consecutive sentence.

The Indian Penal Code, 1860, is the major penal law of our country. Every penal provision prescribes punishment. It may be either death, imprisonment for life, imprisonment for a term, or fine or both. There are several minor Criminal Acts and even the Criminal Procedure Code, 1973. No law stated when the prison sentence starts. If time is not stated, sentence take place immediately on pronouncement. This is the trend of the penal law.

S.389, Criminal Procedure Code, speaks about suspension of sentence pending the appeal and release of appellant on bail. It clarifies the trend. It reads-

(1) pending any appeal by a convicted person, the Appellant Court may, for reasons to be recorded by it in writing, order that the executions of the sentence or order appealed against be suspend and, also, if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on a Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present appeal, the Court shall –

(i) where such person being on bail is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is bailable one, and he is on bail,

order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain orders of the Appellate Court, under S.(1); and the sentence of imprisonment shall, so long as he is released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

S.389, Criminal Procedure Code, clearly indicated the prison sentence shall not take place in case of suspension of sentence either by the convicting Court or Appellate or Revisional Courts. The suspension period shall not affect the sentence, if the sentence remains unaltered. In every other case prison sentence starts immediate. If the Parliament and State Legislature intended to give holiday to any prison sentence, it would have stated so. Therefore, in a case of more than one offence in a transaction, if convicted and sentenced to prison, the sentence shall run concurrent and immediate. So, in my humble view consecutive prison sentence is unknown to Criminal Law of our country and therefore it is illegal.

Cheque Dishonour Notice

(By S.A. Karim, Advocate, Thiruvananthapuram)

Ss.138 to 142 of the Negotiable Instruments Act, 1881, speaks about dishonour of certain cheques for insufficiency of funds in the accounts. Ss.138(a) says a cheque is valid for six months from the date of the cheque. The sub-section is silent about the number of presentation to the Bank. Sub-s.138(a) reads-

"the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier".

As per the Division Bench decision of the Hon'ble Supreme Court reported in 1998 (2) KLT (SC), P. 765 a cheque can be presented any number of times during its validity. The reasoning of the decision is this.

"Incourse of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after some time, on his own volition or at the request of the drawer, in expectation that it would be encashed. Needless to say, the primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which normally is taken out of compulsion and choice."

Sub-s.(b) of the S.138 reads-

"the payee or the holder in due course, as the case may be, makes a demand for the payment of the said amount of money by giving notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid."

This sub-section demands a statutory notice within 15 days, but it is silent about the number of notice. In the Supreme Court decision cited, the cause of action arises when the first notice is issued. There is no subsequent cause of action . Sub-section (b) of S.142 reads-

"Such complaint is made within one month of the date on which the cause of action arises under Cl.(a) of the proviso to S.138".

This sub-section also does not speak about the number of cause of action. The decision of the Apex Court is the law of the Country under Art.141 of our Constitution.

The sub-s.(a) of S.138 never limits the presentation of a cheque to the Bank. The Supreme Court decision cited allows the payee or the holder in due course to present a cheque any number of times within its validity period. Likewise, the payee or the holder in due course, has to be permitted to issue notice any number of times within the validity period of the cheque. In my humble view the reasoning stated for presenting the cheque more than once squirely applicable to the statutory notice on a dishonoured cheque.

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.