LAW COMMISSION OF INDIAM. C. Setalvad, LAW COMMISSION 5, Jor Bagh, New Delhi-3, : September 26, 1958. Shri Ashok Kumar Sen, Minister of Law, . New Delhi. My Dear MrnisTER, I have great pleasure in forwarding herewith the -fourteenth Report of the Law Commission om the Reform of Judicial Adminis- ation. . 2. The appointment of the Commission was announced by B bond predecessor in the Lok Sabha on fhe 5th August, 1955, and the Mem- bers of the Commission assumed their office on the 16th September, 1955.. The: Commission has sincebeen .engazed, among other thin, in investigating the system of juditial administration in this country. 3 3. For various. réasons the inquiry has taken a longer time than " was originally anticipated. While an attempt has been made to ge into all"the matters covered by the terms of reference, we have obvious reasons, not entered into a detailed examination of either of the procedural codes or of the law of evidence with a view to suggesting amendments. We have confined ourseleves to indicating in broad outline the changes that would be necessary to make judicial administration speedy and less expensive. 4. The detailed examination and revision of the codes of civil and criminal procedure is a task which calls for considerable time. Su¢h a revision on the basis of our general recommendations will have fo be undertaken hereafter. : 3 5. The manner in which the Commission conducted its invest: ; tions in this branch of its inquiry has been set forth at I in the 4) introductory chapter. The large volume of material collected fér ti this pores was put into the shape of notes for a draft report by “! the Secretariat of the Commission. A draft report was then pre- pared and circulated to the members. The draft was after a fnal discussion settled by the Chairman. a 6. I would like in this connectien to express my gratitude to my colleagues for the assistance and the co-operation which I have j received from’ them during the course of the Commission’s enquiries and deliberations. 7. I would like to acknowledge the able assistance rendered in the course of the Commission’s inquiries and in the drafting and the completion of the Report by the officers of the Commission. The Joint Secretary, Shri K. Srinivasan has brought to this work not only a wide knowledge of the working of civil and criminal courtsbyt wlso:administyative ability of a high order. Shri R. M. Meht the Deputy Secretary, did ve valuable work in the field of cit law and in Spe ee a Nenkatasubramanian, the fear man’s, ial Assistant did indefatigable work in gathering valuable iene ‘and putting into shape various parteoof the Report , f+ Shri,G. S. Pathak being outside India is unable to sign the e] , but ie concurs in the recommendations and has authorised {he Chairman to sign the Report on his behalf: Dr..N. C. Sen Guptix, Shri V. K. T. Chari and Shri D. Narasa Raju who ere unable to come cine to Delhi, similarly concur in the recommendations and have aut ii the Chairman to sign the Report on their behalf. 9. Dr. N. C. Sen Gupta and Shri V. K. T. Chari have signed the Report subject to their separate motes which are annexed to the Report. -« 10. With this Report, the Comu@ssion, -é8-at present constituted concludes its labours. The task of revising the Central Acts of ge importance and making suggestiong for the reform of the Jaw is, Newever, far ftom beitg-ovér. . Mae of the uridertaken in this eéanection is still unffAi: and He te be cortipleted. J], In conclusion, the Cemmissidn. wishes to;acknowledge the un~ eudging services rendered to it by its entive staff. ‘Yours sincerely, 28. 'C. SEPALVAD:CHAPTERS Vor. I 1. Introductory. 6) et 2. Historical . 5 . . . . 3. The Judicial System. 5 +e . 4 Indigenous System = - . . . . 5. The SupremeCourt . - + + 6. High Courts eee 7. High Courts—Origina Side. 8 Adequacy of Judicial Strength . - + 9. Subordinate Judiciary Baa 10. Supervision and control of subordina‘e courts 11. Delays in Civil Proceedings 9 - + + 12. Jurisdiction of Civil Courts aeerieaeny) 13. Courts of small Causes . . . . 4 TribofSuits 2. 0. + 15. Civil Appeals 16. Civil Appellate Procedure. - 17. Civil Revisions - . . . . . 18. Execution of decrees . ie . 1g. Written Arguments - + + + + 20. Suits against Government . + + + an Cots 6 Ft a2. CoutFes - - + te 23. Insolvency ieee eevee a tdteeea 24- The Lew of evidence . . eee 25. Legal Education . . aaaaie . 26. TheBrs - * + + 8 27. Legal Aid . . . . fee 28. 29 ‘Law Reports. . ee . . ‘Language . . . . ee . Paca him 9 1086 17—03 24——3t 32—t 6g 112138 129—160 161229 * 230—251 252—a63 264-277 2780496 2970361 36ammpB4 38Somg12 413-430 BImniie S874 47976 477-86 Sigs S16—819 520-355 55686 387404, 525-06 678961—INTRODUCTORY Ever since Independence, suggestions were made in and outside Parliament for the appointment of a Law Com- mission for examining the entra Acts and recommend- ing the lines on which they should be amended, revised or consolidated, ‘On the 2nd December 1947 Dr. Sir Hari Singh Gour moved a resolution in the Constituent Assembly (Legisla- tive) recommending the establishment of a Statutory Law Revision Committee to ‘clarify and settle questions of law which required elucidation. The resolution was, however, withdrawn by the, mover upon an assurance being given by the then Law Minister, Dr. Ambedkar, that Government would try td devise some other suitable machinery for revising laws, One of the methods by which the work of law revision could be undertaken was stated by Dr. Ambedkar to be a permanent Commission which would be entrusted solely with the work of revising and codifying the laws. The advisability of creating a Law Commission was. again stressed in the Lok Sabha on the 27th June 1952 by Shri N. C. Chatterjee, on a discussion on the Motion for Demands for the Ministry of; Law.* In the course of his speech-on the occasion, the then Law Minister Shri C. C. Biswas stated that the Government recognised that the work of keeping the law up4o-date was one of vital im- portance and he gave an assutance that the question would be examined by Government and necessary steps would be taken. On the 26th of July 1954 ithe AllsIndia Congress Com- mittee resolved that “a Law Commission should be appointed as in England to iE ise the laws promulgated nearly a century back by the Law Commission of Macaulay and to advise on current legislation from time to time”. The genesis of the present Commission lies in a non- official resolution moved in ‘the Lok Sabha on the 19th November 1954. The contents of that resolution were: “This House resolves that a Law Commission be appointed to recommend) revision and modernization of laws, criminal, civil revente, substantive, proce- dural or otherwise and jin particular, the Civil and Criminal Procedure Codes and the Indian Penal Code, to reduce the quantum of'case-law and to resolve the conflicts in the decisions of the High Courts on many points with a view to realise that justice is simple, speedy, cheap, effective rt substantial.” i *House of the People Debates, 1452, Vol. Ilf, ediumn 2690. 315 MofL—12 In the course of |further discussion on this resdlution in the Lok Sabha the 3rd December 1954 the ‘ime Minister, Shri Jawaarlal Nehru, made a statemenf that the Government hadj accepted the resolution in so far as the appointment of the Law Commission was conderned and that Governmerg were even then “engaged in jconsi- dering the steps to taken towards that end”. In view of the acceptance by the Prime Minister of the pripciple underlying the resol¥tion, tht resolution was withdzawn. 2. Though the suy assurances given by revision and model pose as stated in t! 1954 was “to realise: effective and substai merely by revision also overhauling th The growing accumt Courts and subordins necessitated a caret proper functioning Presumably these ambit of the activiti ation @f laws, the underlyin, is simple, speedy, is'aim could not be a Wid simplification of the laws but reeds. system!of administration of jestice.;: lation of arrears in the various| High e courts had created a situation 4 examifation of the problem @f the the ‘machinery of the sons led Government to wit s of thé proposed Law Comm the subject of the reform of j administration, 2 3. On the Sth of Cc. C. Biswas, made’ Sabha announcing appoint a Law Com: of reference. Augusti1955 the Law Ministeq. the following statement in the Lok le Goveymment of India’s decisfon te ission, its membership and the Res . ta sion should be and suggesting 4 system of judic ‘ en : (1) Shri] M. ¢ Betalvad, Attorney-Gend mn), Hf Phagla, Chief Justice3 *{4) Shri G. N. Das, retired Judge of the Calcutta High Court, (5) Shri P. Satyanarayana Rao, retired Judge of the Madras High Court, (6) Dr. N. C. Sen Gupte, Advocate, Caleutta, (7) Shri V. K, T. Chari, Advocate-General, Madras, (8) Shri Narasa Raju, Advocate-General, Andhra, (9) Shri S. M. Sikri, Advocate-General, Punjab, (10) Shri G. S, Pathak, Advocate, Allahabad, (11) Shri G. N. Joshi, Advocate, Bombay, The terms of reference to the Commission will firstly, to review the sysiem of judicial administra- tion in all its aspects and suggest ways and means for improving it and making it speedy and less expensive; secondiy, to examine the Central Acts of general application and importasce, and recommend the line on which they should be amended, revised, consolidated or otherwise brought up-to-date. 4, With regard to the first term of reference, the Commission’s inquiry ‘into the system of judicial administration will be comprehensive and thorough, including in its scope,— (a) the operatign and_ effect of laws, sub- stantive as well as, procedural, with a view to eliminating unnecesgary litigation, speeding up the disposal of cases and making justice less expensive; (b) the organigation of courts, both civil and | criminal; ’ , . (e) recruitment of the judiciary; and (@) level of thi{ bar angi of legal education. 5. With regard to ib second term cf reference, the Commission’s principal‘iobjectives in the revision of existing legislation will be— {a) to simplify‘ithe laws in general, and the procedural laws in garticular, * Resigned on 33st December 55.4 (b) to ascertain if any provisions are inconsis— tent with the Constitution and suggest the necessary alterations or omissions, (c) to remove anomalies and ambiguities. brought to light by conflicting decisions of High Courts or otherwise, (a) to consider local variations introduced by State legislation in the concurrent field, with a view to reintroducing and maintaining uniformity, (e) to consolidate Acts pertaining to the same subject with such technical revision as may be found necessary, and (2) to suggest modifications wherever neces- sary for implementing the directive principles of State policy laid down in the Constitution. 6. In order to perform its task expeditiously and efficiently, the Commission will function in two sections. The first section consisting of the Chairman and the first three members will deal mainly with the question of the reform of judicial administration, while the second section consisting of other seven members. will be mainly concerned with statute law revision on the lines indicated above. The two sections, however, will work in close co-operation with each other under the direction of the Chairman. 7. The Chairman of the Commission may at his discretion co-opt as members one or two prac' iz lawyers of a State in order to assist the Commissjon’s. inquiries in that State. 8. The Commission is appointed in the first instance upto the end of the ear 1956. Its headquarters wil} be at New Delhi. 4. Shri N. A. Palkhivala was appointed a Member of ‘the Commission on the Ist October 1956 in the Stgtute. Revision Section, it having been decided to give priority to the revision of the Indian Income-tax Act. In December 1956, pne of the Members of the Comgnis- sion Shri G, N. Das resigned his Membership of the 2 Gam mission for reasons of health. His resignation deprit the Commission of the mature experience of a senior ;and eminent member of the Bar and later of the Bench. Itiwas with considerable regret that the Chairman accepted his resignation, It may be mentioned that the Commission is greatly indebted to him for the assistance he gave to the commission during the period of his association with it, particularly on important topics relating to. the reform of judicial adxginistration. .5 After Shri G. N. Das resigned from the Commission Shri P. Satyanarayana Rao who was till then prineipally in charge of the Statute Revision Section of the Commis- sion was invited by the Chairman to serve on the First Section in addition to his onerous duties in the Second Section and the invitation was accepted by him. 5. Although our appointment was in the first instance mpto the 3st December, 1956, the period had to be extended from time to time upto the 30th September, 1958 in view of cthe large field of our inquiry. 6. In accordance with our instructions we have func- tioned in two sections. The first section consisting of the ‘Chairman and the first three members has dealt mainly ‘with the question of the reform of judicial administration. -At our inaugural meeting held on the 16th September, 1955 we discussed the objectives in our terms of reference and the particular lines on which the Commission as a whole and the two sections thereof should proceed; the initial steps to be taken and the procedure to be followed, in so far as the work of the first section was concerned. It was decided (1) that the factual position with which the first section had to deal should in the first instance be ascertained before considering the remedial measures; (2) that detailed information on these problems should be collected from all possible suurces; (3) after the information had been collected, a comprehensive questionnaire should be addres- sed to all bodies and persons likely to assist the Commission with their knowledge and experience, and (4) that the vecommendations should be decided upon after the replies to the questionnaire had beer examined. At the first meet- ‘ing of the first section held on the 17th September, 1955 we ‘discussed the several problems relating to the administra- tion of justice on which reform was needed and preparéd a ‘list of the topics on which material had to be collected. After the required information had been collected from the State Governments, the High Courts and other sources, a detailed questionnaire* containing 193 questions embrac- ing almost all the aspects of judicial administration was ‘prepared at the second meeting of this section held on 6th January, 1956 and was finally settled at a meeting of the full Commission held on the 7th January. More than six thousand copies of the questionnsire were distributed samongst individuals and associations including the High Courts, the State Governments, Bar Associations and other organisations such as Chambers of Commerce, individual ‘lawyers and judicial officers, Although we received a fairly large number of replies to the questionnaire we regret to observe that the response was not as encouraging as we had anticipated. *See Appendix Ito the Report. i6 Ata meeting held in Bombay on the 21st July, 1956, we reviewed the progress of the work done by the first section cf the Commission till that date with special reference to the answers to the Questionnaire that had been received. It was then decided thet in order to obtain opinion and information on some of the important problems which arose, it was necessary that the first section of the Commission should visit the States and hold sittings at the principal seat df the High Court in each State and examine witnesses at these pleces. The conclusions reached at this meeting of the first section were endorsed by the Commission at its full meeting held on the next day. The first section of the Commission met ai New Delhi on the 18th, 19th and 2th of October, 1956 to further discuss: the matters raised in the Questionnaire in the light of the replies and information received and formulated certain tentative idezs,. with a view to eliciting opinion on Shem at the sittings of the Commission when on tour. These o tive ideas were placed before a meeting of the full Commis- sion held on the 20th of October, 1956. . pee. exercise of the discration vested in the ha an of Commission to co-opt one or two practising vers. of a State in order to assist the Commission’s inqui in that State, the Chairman co-opted two members in egch of the States visited by us_except Madras where only one member was co-opted, The names of the membefs co- opted are given below: ‘Urrar Prapesit (ALLAHABAD) (1) Shri Jagdish Swaroop, Advocate, Allahdbed. (2) Shri Kirpa Narain, Advocate, Agra, Kerana (ErwakuLaM) (1) Shri KV. Sutyanarayana Iyer, Advpcate- General of Kerala, rnakulam. (2) Shri K, P. Abraham, Advocate, Ernakuldm. Mysore (BANGALORE) (1) Shri A, R, Somenatha Iyer, Advocate, Bangalore, (now Judge Mysore High } (2) Shri N. K. Dixit, Advocate, Dharwar. ‘Mlapnas (Mapas) * (1) Shri § V. Gopalakrishnan, Advocate, Tinnevelly. “Shri V. K.T,, Chacisf member of the Scatute Revision Sectiog atcend= ‘Section’s aANDHRA PrabesH (Hyprranap)* (1) Shri A. Ramaswamy Iyengar, Advocate, Secunderabad. (2) Shri M. S. Ramachandra Rao, Advocate, Secunderabad. West Benga (CaLeutra)t (1) Shri S. M. Bose, Advocate-General, West Bengal, Calcutta. (2) Shri Atul Charidra Gupta, Advocate, Calcutta Orissa (CUTTACK) (1) Shri B. Jagannadha Rag, Advocate, Berhampur. (2) Shri B. Mahapatra, Adyocate-General, Cuttack. Assam i(GAUHATI) (1) Shri Debeshwar' Sarma, Advocate, Jorhat. (2) Shri S. K. Ghodh, Advocate, Gauhati. Bomar (Bomar) +t (1) Shri R. A. Jahagirdar, Advocate, Bombay. (2) Shri V. R. Dholakia, Advocate, Ahmedabad. RagasTHaN (JODHPUR) (1) Shri C. L. Agarwal, Advocate, Jaipur. (2) Shri Chand Mal Lodha, Advocate, Jodhpur. Pounsas (CHANDIGARH) (1) Shri A. N. Grover, Advocate, Chandigarh (now Judge Punjab High Court), (2) Shri G, D. Sehgal, Advocate, Jullundur. é Mapuya Prapes (JABaLPUR) (1) Shri K. A. Chitale, Advocate, Indore, (Madhya Pradesh). **(2) Shri M. Adhilari, Advocate-General, Madhya -Pradesh, Jabalppr. — - men *Shri D. Narasa Raju, a member{of the Statute Revision Section attend ed the First Section’s sittings at Hyderabad. }Dr. N.C. Sen Gupta, a meehber of the Starute Revision Section attended the First Section’s sittings:at Calcutes, Shri N. A. Palkhivala, a member of the Statute Revision Section attend- ed the First Section’s sittings at Borybay, **Waus unable to attend the sittihgs of the Conimission,Butarn (Patwa) (1) Shri Aghore Nath Banerjee, Advocate, Monghyer (Bihar). (2) Shri Lalnarayan Sinha, Advocate, Bihar High Court, Patna. &. Before commencing our tour we requested all the High Courts and the State Governments to suggest the names of witnesses of several categories, such as, (1) judicial officers, (2) representatives of Bar Associations, {3) representatives of the State Governments, (4) Heads of the police departments, (5) Chairman of the Public Service Commissions, (6) University teachers of law, (7) Persons experienced in the working of Village Panchayat Courts, (8) representatives of Legal Aid organisations and (9) individual lawyers. The selection of the witnesses to be examined in each State was made from the lists supplied to us by the High Courts and the State Governments. Ia addition, publicity in. the press was given to the visits of the Commission to the headquarters of the High Courts, so that, in addition to the witnesses proposed by the High Courts and the State Govermments, we were also able to obtain in each State the assistance of several other witnesses who volunteered to piace before us their views on the problems in which they were particulary interested. 9. In December 1956 the first section of the Commission commenced its tours of the headquarters of all the State High Courts for the purpose of recording evidence of witnesses whose opinfon could be helpful in our task. We examined in all 473 avitnesses whose names are gi in Appendix 11. The sittings of the Commission and the places visited are shown below: : Sirings No. of Place closed = Witnesses Allshabat 31-12-1956 5 Emakuam s+ 11-1-1957 28 Banglore | 19-1-1957 35 Magms - 6 261-1957 35 Hyderabad + 3-2-1957 uM Delhi : 24-2-1957 Jo Calcutta foe 4-4-1987 eB Cuteck 74-1987 14 so 1Eng-I987 7 Bombay © + 59-7-1987 37 Jodhpur 2-8-1957 at wath 8-8-1957 32 Jaoatour 21-11-1957 30 tn. 29-11-1957 a6 “Witnesses from Himachal Predeshare emmmined et Chandigarh.9 We generally held our sittings at the centres we visited in public. Occasionally, jowever, it was found necessary to take the evidence of some witnesses in camera. The Commission had also the advantage of informal discussions with all the Chief Justices and a certain number of Judges of the High Courts on the various . problems raised in the Questionnaire. 10, From the 2nd January to the 7th January, 1958 the First Section again met in New Delhi in a series of meetings in which conclusions were reached as to recommendations to be made to Government. These conclusions and recommendations were decided upon finally in the combined meetings of both the Sections of the Commission held in New Delhi on the 25th and 26th January, 1958. 11. A draft Report prepared in the light of the conclu- sions was discussed at a meeting of the full Commission in New Delhi on the 23rd August—and the Report as finally settled and approved was signed at a meeting on the 26th September, 1958. 12, We cannot conclude without expressing our warm cand sincere thanks to the High Courts, the representatives of State Governments and to the large number of indivi- duals and associations who at the expense of much time and ‘labour sent us detailed and elaborate replies to the question- “naire and submitted memoranda on various topics relating ‘to the administration of justice. We would also express cour deep gratitude to the State High Courts and their ministerial officers for the valuable co-operation and assistance given to us during our visits to each State and to the State Governments for the excellent arrangements made by them for our accommodation and comfort and for ithe staff which accompanied us.First Law Commis tion, 2—HISTORICAL The system cf administration of justice and laws as we have today is the product of well thought out efforis on the part of the British Government. No less than fopr Law Commissions ‘were appointed during the last century to augment the efforts of the Government in settling its shape. Since then a number of committees have been appointed from time to time to deal with particular aspects so as tc mbdify the system to suit the needs of the community. A brief review of the work of the various commissions and committees is necessaryi both to take stock of what has been done as also to evaluate the task before us. t The first Law Commission was constituted in‘ 1834 under the Charter Act of 1833, to investigate inté the constitution of Courts and the nature of laws. In those years there were being administered in the different parts. of British India several systems of law “widely differing from each other but co-existing and co-equal” and, yet, singularly devoid of completeness, uniformity andj cer- tainty. The origin of the important movement for legal re~ form and codification which began in 1833 may per be traced to 2 correspondence which took place in or gout 1829 between Sir Charles Metcalfe and the Judges of Bengal, in the course of which a scheme was conceived of of administration of Justice which existed when the |East India Company foi itself the territorial soverei, the greater part of the country! In the debates preceded the passing of the Act of 1833, Charles the President of the Board of Control, called attenti the three leading defects in the frame of the Indian C tution. “The first was in the nature of Laws; the was the ill-defined authority and power from which various Laws and Regulations emanated; and the was the anomalous and conflicting state of judicai by which the Laws were administered’*, Macaulay |who devoted a part of his speech upon the second reading, to. the uncertainty of the laws and the need for codification to ensure uniformity and certainty, said: j “I believe that no country ever stood so mudh in need of a Code of law as India, and I believe also that there never was a country in which the want ntight ue so easily supplied. Our principle is simply this,— See Whitiey Stokes: The Anglo-Indian Codes, Volume 1, page % ‘Hansard, 1833 XVII, page 728, ‘10 laws to replace the re of conflicting laws and 5)ll uniformity when you can have it; diversity when you must have it; but, in all cases, certainty”.! : 2. The First Indian Law Commission was composed of 1's person T. B. Macaulay, the Law Member, as Chairman, and J. M. Sct,, 4 Macleod, G, W. Anderson and F. Millett—civil servants reference. drawn from the presidencies of Calcutta, Madras and Bombay as members, The Commission was to inquire into the jurisdiction, powers and rules of the existing courts of justice and police establishments and into the nature and operation of all laws prevailing in any part of British India; and to make reports’ thereon and to suggest altera- tions, due regard being hatl to the distinction of castes, differences of religion, arid the manners and opinions prevailing among different races and in different parts of the said territories. The Commissioners were to follow such instructions as they should receive from the Governor- General in Council.? 3. Macaulay expected tq finish the work on the Penal ork, of Code and the Criminal Procedure Code in 1837 and to je com enter on the work of framing a Code of Civil Procedure in 1838." The task before the Commission was, however, not as easy as Macaulay had envisaged. It was of a stupendous and diversified character and required a great deal of time and larger personnel. Moreover, the practice of the Government of making too many references to the Commission even on questions “which might have been settled without any such r@ference” added to the Commis- -sion’s difficulties and evoked sharp grotests from Macaulay.‘ it appears from an undated minute of Macaulay that in order to speed up the work on the Penal Code, a fifth, member was required! 4. After Macaulay’s departure Jate in 1837, the Com-;lts end. mission shrank in size statunp partly on account of, the absence of a successor.'of equal vitality and drive and: partly because of extranepus circumstances. As Rankin: points out in his ‘Backgrpund to, Indian Law’, notwith- standing its strenuous la¥ours under Macaulay and his successors, no results had teached'the statute book before the mutiny." In the wortls of Fitzjames Stephen “The Afghan disasters and triutnphs, the war in Central India, the war with the Sikhs. Lord Dalhousie’s annexations, threw law reform into the background and produced state of mind net very favourable-4e it” It was felt tha‘ the Commission cost mord than it was worth and in 184 1Cited by Whitley Stokes : The Angl-Tadlan Codes, Vol. I, page &. Act of 1833, 38. 53-35. "Macaulay's Legislative Mibute of 6th June 1836. India Legislative Consultations, 3rd April 357 Me 3 SCD) Diarkee? Lo Mateulere minutes pp. 239-40. “india Legislative Consultarlons, No, 3, 2nd Jan, 1837, STbid, "Page 21. \ "Cited in Rankin} + op. cit gh 21.“Estimate of its work, bebe 12 its strength was reduced to one member and a secretary in addition to the Law Member who acted as its president. By January 1845 it had to forego its secretary as well, 5. In spite of difficulties in its way the first Commission did remarkable pioneering work. It nad to work against the background of the English system which had not then been pruned of its manifold technicalities and the Indian system, full of diversity and imcongruities. Without the aid of a perfect model it had to evolve a consistent system of Courts and laws from a conflicting and __ ill-defined system of judicature on the one hand, and a bewildering variety of ascertained. umascertained or unascertainable rules of law of doubtful origin and vague application, on the other hand. Its chief contributions were the draft Penal Code of 1837, the draft law of Limitation and Prescription of 1842, the scheme of pleading and procedure with forms of eriminal indictments of 1848 and the Ler Loci proposals of 1841. Besides these, the Commission also reported on diverse subjects, eg., Judicial Establishmtents of the Presidencies of Bengal, Madras and Bombay. Special Appeals, Review of Judgments framed by Sadar Courts, Report on Slavery, and Remuneration of officers of the Courts of Judicature. It thus Jaid down the founda- tions on which other legislators were to work.” 6. The next Charter Act” provided for the appointment of the Second Law Commission to examine and consider the recommendations of the First Indian Law Commission and the enactments proposed by them for the reform of the judicial establishments, judicial procedure and, the laws of India and other matters. This Commission mwas composed of Sir John Romilly, Sir John Jervis, Sir Edward Ryan and Messrs, C. H. Cameron, J. M. Macleed, J. A. F. Hawkins, T. F, Ellis and R. Lowe. The Commission was directed to address itself in the first instance to the pro- blem of amalgamation of the Supreme and Sadar Courts of each of the presidencies and to devise a simple system of pleading and practice, “uniform as far as possible throughout the whole judrisdiction” 7. In its First Report the Commission submitted a plan for the amalgamation of the Supreme Court at Fort William with Sudder Dewanny and Nizamut Adawlat as well as simple and uniform codes of Civil and Cri Procedure, applicable to all the courts in the Presidegcy. The Commission submitted plans and codes of pro re on somewhat similar lines for th~ North Western Provinces in their Third Report and for . edras and Bombay in their Fourth Report. The Commission’s proposals for the amalgamation of the Saddar Courts and the Supreme Courts were given effect to by the Indian High Cotris Act of 1861. In 1859, the Indian Legislature enacted the \Cambridge History of Epi, Volume VI (1932) p, 8. 436 & 17 Vict ©. 95 Seey 28,13 Code of Civil Procedure (VII of 1859) and the Limitation Act (X of 1839). The Penal Code and the Code of Criminal Procedure were passed respectively in 1860 end 1861, In 1862 a greater part of the Civil Procedure Code was extended to the High Courts by Letters Patent.1 In their Second Report the Commission examined ihe problems of Lex Loci and codification and came to the conclusion Second | that “what India wants is a body of substantive civil Report! jaw, in preparing which the law of England should be used as a basis, but which, once enacted, should itself be the law of India on the subject it embraced. And such a body of law, prepared as it ought to be with a constant regard to the condition and institutions of India, and the character, religions, and usages of the population, would, we are convinced, be of great benefit to that country”? The Commission also recommended that codification should not extend to matters like the personal laws of the Hindus and the Mohammedans which derived their authority from their respective religions, 8, The Third and the Fourth Commissions were consti- The work tuted respectively in 1861 and 1879. The Third Commission of the was at the outset composed of Lord Romilly, Sir William [bird aed Erle, Sir Edward Ryan, Robert Lowe (later Lord Ley Com- Sherbrooke), Mr. Justice Willes and Mr. J. M. Macleod missions. and sat in England." The Fourth Commission sat in India and was composed of Mr. Whitley Stokes, Mr. Justice Turner of Allahabad (later Sir Charles Turner, Chief Justice of Madras) and Mr. Justice West of Bombay. Those two Commissions were entrusted with the task of codification of substantive law on the lines laid down by the Second Law Commission in its Second Report. The Third Commission submitted six draft Bills on Succession, Contracts, Negotiable Instruments, Evidence, Transfer of Property and Insurance besides making suggestions for revision of the Criminal Procedure Code of 1861. Of these drafts only the first became law in 1865. The Third Commission felt dissatisfied with the apathy of the Government of India in taking no action on their reports and the acquiescence of the Home authorities in this. attitude of the Government. They resigned in 1870 partly for these reasons and partly as a result of a controversy between the Secretary of State and the Commissioners on the one hand and the Home and Indian authorities on the other, as to certain proposals of the Commission in the draft on the Law of Contract. The Fourth Commission was directed to report on cettain Bills which had already 1The Civil Procedure Code of 1859 was was amended four times during the next four years, Further amendments were made in 1877 and 1879 and the original Code was revised and replaced by the Codes of 1882 and 1908, The €riminal Procedure Code of 1861 was revised and replaced by the Codes 1872, 1882 and 1898, *Second Report dated 13th December, 2855, page 8, *Sic W. M. James L. tle 5 Mr. John Henderson wicereddd Me, janice Wikies + and Mr: Tastee Lish mcedstea Mr. Henderson. ! !subsequent inquiries, Statute Law Revision ‘Committee. Civil Yus- tice Com- mittee, 14 been prepared for codifying the laws relating to Nego- tiable Instruments, Transfer of Property, Easements and certain other subjects and to make suggestions for future codification of the remaining branches of the substantive law of India. The Commissioners completed their work in about ten months and submitted their report in 1879. In accordance with their recommendations the Bill relating to Negotiable Instruments was enacted in 1881 and the Bills relating to Trusts, Transfer of Property and Easements ete. were enacted in 1882. 9. The system af laws and judicial organization established in the Jast century on the basis of the earlier Law Commissions’ recommendations has continued with minor modifications down to the present day. The scope and need for improvement particularly in the sphere of judicial administration and procedural laws has been felt throughout this Iong period but it was only in the years following the first World War that systematic efforts ‘were made in the direction of reform. 10. The earliest of these efforts was the creation df the Statute Law Revision Committee of 1921 under the chairmanship of the President of the Council of $tate, This Committee was entrusted with the task of pre, ‘ing for the consideration’ of the 'Government such meagures of consolidation and clarification as might be nec y to secure the highest attainable standards of formal perfection in the statute law of the country. The Com- mittee did some work in the sphere of consolidatiqn of some branches of substantive law, e.g. Succession! and Merchant Shipping. ‘With the retirement of its sdcond President in 1932 the. Committee ceased to function. 11. In 1923, mai through the efforts of Sir] Tej Bahadur Sapru, th Law ‘Member of the Vier "s, Executive Council, a cbmmittee was appointed to deal Wwith the problem of delay in civil eourts and the defects id-the constitution of the dudiciary and the substantive! and procedural laws of the country. This Committee with Mr. Justice Rankin as, Chairman was “to enquire intd the operation and effects a the substantive and adjective flaw, whether enacted or erwise, followed by the courfs in India in the disposal.jof civil suits, appeals, applications for revision and other civi] Litigation (including! the execution of decrees orderg), with a view to ascerfain- ing and reporting ether any and what changes }and improvements should be made so as to provide for; the more speedy, economigal and gatisfactory despatch business transacted in the courts and for the more 5] ly, economical and satisfagtory execution of the process ishued by the courts”. The Committee was expressly directed not to inquire into the strength of judicial establishments maintained in the Pa ek After a thorough and careful inquiry into the varioug probleifas the Committee submitted16 an exhaustive report in 1925. We shall have occasion ts refer from time to time to its recommendations and the extent to which they were implemented. 12, In the years preceding independence other Com- Committee mittees were set up both by the Central and Provincial om special Governments to inquire inte particular problems. Amongst ropice the Central Committees must be mentioned the Indian Bar Committee of 1923 to examine the conditions of the Bar in India. The report of this Committee led to the passing of the Indian Bar Councils Act of 1926. Earlier in 1921 the States of Bengal, Bihar, Punjab and United Provinces had appointed spegial committees to inquire into the problem of the separation of the Judiciary from the Executive. In Madras two gommittees were appointed for the same purpose, the first in 1923 with Mr. Justice Coleridge and the second in 1946 with Shri K. Rajah Aiyar as Chairman. The post-independence period witnessed a powerful demand for a complete re-orientation of the legal and judicial systems of the country. Not much, however, could be done in the years immediately following 1947 on account of the Central Government’s preogcupation with other problems of a more pregsing nature. Mention must, however, be made of the High Court Arrears Committee of 1949 and the All India Bar Committee of 1951, The High Court Arrears mittee, presided over by Mr. Justice Sudhi Ranjan Das. was appointed to inquire into and report on the advisability of curtailing the right of appeal and revision, the extent and method of such curtailment, and any other measures that might be adopted to reduce arrears in the High Courts. In view of the restricted character of its tegms of reference the Committee contented itself by making @ few concrete proposals. The All India Bar Comniittee was dppointed in Decem- ber 1951 again under the chhirmanship of Mr. Justice Das. Some of the problems referred to it were the desirability and feasibility of a unified Bar for ‘India, the continuance or abolition of different classes of legal practitioners, the ; continuance or abolition of the dual system of counsel and attorney, and the desirability of a sfhgle Bar Council. The Committee recommended creation of a unified All India | Bar and the continuance of the dual; system in the Bombay and Caleutta High Courts. , In regard to its latter recom- mendation two of its memiers expressed dissent. . 13. Meanwhile the States of West Bengal and Uttar Pradesh appointed separatei committees in their respective States to report on several problems relating to the Pradesh administration of justice,}The West Bengal Committee fudicial ‘Re appointed in 1949 under Sip Arthur Trevor Harries, then forms Com- hief Justice of Calcutta,iwas asked to report on four" specified matters—(a) ref in the system of administra-, tion of justice in Calcutta, @) reforin in the administration: i: eat Bengal UtarOther Commitces of Enquiry. Conclusion: task before the present Law Com- mission. 16 of justice in the rural areas, (c) reform of the legal profession and (d) the question of State aid to indigent litigants. The Committee submitted its report in 1981 recommending tnter alia the setting up of a City Civil and Sessions Court and made several other recommendations. The Uttar Pradesh Committee was set up in April 1950 with one of us, Mr. Justice K. N. Wanchoo, 2s Chairman for considering the question of reform in the system of administration of justice in that State with a view to simplifying the process of law and making justice cheap and expeditious. Its terms of reference were fairly comprehensive. The Committee submitted its report in 1951 making a series of recommendations, some of which required changes in the law for their implementation. 14. Amongst the other committees constituted in the States to inquire into particular problems, special mention may be made of the Separation Committee of 1947. in Bombay under the chairmanship of Mr. Justice Lokur, and’ the Jury Committee of Bihar in 1950 with Mr. Justice S. K. Das as its chairman. 15. As we have seen, the work of the four Law Com- missions of the last century formed an integrated whole and together they accomplished the task with which the First Law Commission was entrusted but which. for reasons already explained, it could not accomplish, ‘Their work was directed towards the creation of a co-ordinated system of Courts of law and a well-defined and as far as possible a unified system of rules of aw. Their emphasis all along was on Indian conditions and Indian needs their endeavour, in the words of the Third Law Commisgion was, to create a system which would be “alike honourdble to the English Government and beneficial to the peqple of India’. Their personne! -consisted of some of the leading jurists of England. Their task was essentially of a pioneering nature; it lay principally in delineating the broad outlines of a system suited to Indian conditions, The Subsequent inguiries into the diverse problems affecting the legal and judicial systems in the present century were all considerably restricted in seope and character. In contrast, our task is more in the nature of improving and reforming our presént structure of judicial administra- tion in all its aspects of-revising and modifying the statute Jaw. In fact, ours may well be described as the first comprehensive inquiry into our legal system. We are thus faced with a task of greater complexity and responsibility than that which confronted our predecessors. Its cgm- plexity is increased by the need for adjusting the machinery of law and justice to the changed ideologies embodied in our Constitution and our rapidly changing conditions.3.—THE JUDICIAL SYSTEM 1, The powerful impact ,which the system of ‘Courts cand judicial administration thas oh a vast number of scitizens needs to be pointed ‘out, so that, it may be appre- «ciated that the reform of the systefa is a matter of vital importance, not only to the Jawyer and the judge but also to the State and the avetege citizen, The smooth and ‘speedy operation of the Courts of law is essential to the ‘progress of the country anf the growth of its economic and industrial stature. . 2. The vast volume of ordinary original civil litigation in the country during any one year is shown in the accompanying Table I whic relates to 1954. We refer to it as ordinary civil litiga as opposed to disputes of a Special kind, arising under‘ special enactments or deter- mined by special courts. Im: terms of money, the value of ‘such ordinary litigation (exéluding tases which cannot be valued in terms of money; of which there is a large number) approaches the order of ome hundred crores of rupees in a year. The number of suits instituted in the civil courts exceeds ten less, and of these, nearly nine lacs of cases involve disputes rating +> sums of rupees one thousand and below. The r&ajority of these actions affect persons to whom these sumb of one thousahd rupees and less represent all or a majét part of their belongings. It would therefore be wrong to regard them as petty litigation not worthy of consideration. - 3. This Table does not tike into, proceedings in appeal courtg, nor proceedings befére special | trib :several enactments. These special t4bunals function more or less in the same =. as courts. They determine disputes between citizen ari citize and between titizen -and the State. Their decisidps affect the rights of patties. In general, such tribunals accorded exclusive jutisdic- tion in matters placed within their putviéw. Thefr decisions -are final subject to appeals of revisitns wherever provided and are also subject to the ‘writ juiisdiction of the High Courts. A very large number of tizeris appear before these tribunals in disputes determinable by them. 4. Rent Control Acts, Lahd Refit measures ahd the like deal with disputes fable by special agencies -cohstituted for that p and ¢ agéticies perforin the functions which would have falith upon the ordinary civil courts. No Mgures dite ‘available to bhow the number of persons co! in these spetial typay of Ww “315 M of Law—2 BeaE of Jaa Seental” Volame nd Of citi tion. bI ies tyburiats,Number of persons before, criminal courts, Number of Persons: before the ordinary courts. Proceedings to enforee constitu- tional sights. a8 litigation but having regard to the far-flung nature of recent Jegislation, it is probable that the number exceeds those concerned in ordinary civil litigation. 5. Table II gives an indication of the vast number of persons brought before courts as aceused persons and Witnesses every year. Complete figures of these are, how- ever, not available. In addition to the immense number of persons actually brought before the courts, an even larger number is probably examined by the police or other depart- mental agencies during the investigation of offences 6. The broad facts get out above do not, however, portray a sufficiently clear picture of the impact of the volume of civil litigation upon the citizen. Each action concerns at Jeast two persons, a plaintiff and a defendant. In cases- which go to trial, which are nearly half of the total num- ber, a large number of persons appear on either side as witnesses, After making allowance for different methods. of disposal such as disposal ex-parte, disposal on admigsion, disposal on a compromise and disposal without trial, a con- servative estimate of the number of persons who have to: attend courts in any one year as parties and witnesses in the ordinary Civil Courts would be about twenty lacs. The number in criminal cases would exceed cighty lacs. Jf we further take into account the number of persons examined by the police and persons concerned in appellate and other proceedings (such as execution and insolvency) in the regu- jar courts and special tribunals, the total may exceed two- crores which amounts nearly to five per cent. of the: total’ population of the country. 7, In addition to the subordinate courts, where only, generally speaking, original trials of causes take place, the highest court in the State possesses special jurisdiction. which has assumed great importance in the post-Corjstitu- tion period. The upsurge of national consciousness which. Jed to Independence has to a great extent altered, the psychology of the citizen. The change of his status fiom: a subject in a dependency to a citizen of a demorraiic republic has reacted largely on the citizen's social, eco- nomic and political kife. He is proudly conscious the rights guaranleed to him by the Constitution; of hisjright to social and economic justice; and of his claim to equa- lity of status and opportunity. In the context of hig new freedom, the citizen displays a keenness in the asstrtion and protection of hig new born rights which one Would’ not have expected from him a decade ago. The attitude of the citizen has been encouraged by the changed aspect which the State has assumed What formerly was a sta- tie machinery functioning largely for the purpase of the preservation of law and order, has now changed into a dynamic organisation ordeging the social and ecopomic life of the citizen. e constant interference by! the State with the everyfiay life of the citizen however wellintentioned and beneficial, comes into repeated conflict, real or apparent, with the guaranteed freedoms and the citizen is naturally not content till he has the matter adjudicated upon by the courts. Thus, these recent changes in our constitutional, social and economic structure bring an increasing number of citizens to the courts. 8. It may also be observed that not all cases. civil or criminal get disposed of at the first hearing. In practically all civil suits disposed of after full trial, there are several adjournments; on each of these dates of hearing, the parties have in any case to appear in the courts. Witnesses also have to appear in the courts on several occasions as_ the courts do not always find time to record their evidence on the days fixed. In the result, a fair proportion of the lJarge number of the persons who attend courts have to do so on more than one occasion, 9. What has been said above is enough to show the vital importance of the proper functioning of the courts to the country. In the social welfare State towards which we are said to be moving, laws and tribunals which administer them will have a constantly growing role to play. The fanciful ideas of a few, who would abolish courts and law- yers, are but an idle dream. Not only must courts continue to exist, but they will have larger and an increasing num- ber of functions to perform. A strenuous endeavour must therefore be made to ensure the discharge of those functions efficiently, and so as to cost the suitor and the witnesses, the least expenditure of their time and resources. Frequent attendance in Courts, Importance of judicial reform,Taste I Comparative Statement showing the number and value of Civil Suits instituted in the year 19S4, in Courts of ordinary origtnal furisdiction Not, Between Between Between —_ Between. Between Exceeding Incapable Total Total Stare exceeding Rs. 10 Rs. 50 Rs, 00. Rs. soo Rs. 1000 Rs. 000 of valua- Number Value of 9 REMARKS Rs. 10 and and and a and tion in of Suits Suits Rs. so Rs. 100 Rs. 500 Rs. 1000 Rs, sooo money —Instinat ¢ It 2 3 4 5 6 7 8 9 10 oad Iz Andbra . 4369 TL,74T 13,615 38,504 8,007 8,135 15725 305 86,4on 6,33,04,759 The figures shown -agaimst Asam : 318 2,288 1720 33722 994 gis 176. 19 10,205 -70;23,654 the Bombay cate rt ‘fim .zg0ygsfop-—r7553 TBD 6 BJO FH Sa 133 badt73 om3e71t3 saciads. & ay ‘Bombay . 2,128 130464 205753 38,135, 12,649, 11,649. 3,872 8,207 110,857 12,21520.000 value of sults: inst in Hyderabad. NAL NA NA NA NA NA. NA, NA. 1984 2r6j2ngor the High ‘Madhya Pradesh 619 5,076 5456 22,725 5:004 43100 pe 43,700 34 5:540979 aaercine of Madras + 6,872 26,864 16313 35,165 Ta 6849 1,981 79 1,04;335 7,38,49,008 —_ juriadietion, ‘Mysore . 303 33,624 15,313 13,216 2,572 2,129 440 2,199 29,796 -1,37.49,031 The figuaes. shown a Orissa : 216 n712 2396 HOKE S37 Tag 338 48 14,376 1,68,89,222 the , of Mysore and ‘Travancorc- Cochin roldte to the: Official- yetr 1994-55, ppt G9 RE OOO GBI BEE He oe Ee BERL - Sahat oe et Rajasthan. 374 4,413 6,413 225947 5219 Ewtcy 513 352 43,653 2994057,410Saurashira . 508 30558 ‘Travancore- = =§ ——-6,578———— Cochin ‘Unar Pradesh $5930 22,841 ‘West Bengal . 35:627 73,065 31366237 1,663 15249 278 —1,843—18,266 1,25,06,346 Nore: ‘The Table does 6,609 16,966 52408 4,169 206 239 40,175 2,80,18,649 not _give the particulars relating to PEPSU_ and 23,802 69,607 «15.139 «1236 1,930 243 1550728 9,45,70,299 Part C States. 28,669 40,384 7879 8403 3459 2,467 15995953 19,$1,30,811 B1,7254+6578 BI9.17O 1,84,914 — 3554,465 82,965 70,688 18,026 16,278 10,24:293 83:73,36:467‘Tape It Statement showing the number of Criminal Casés, number of accused persons in those cases ahd the number of witnesses toho attended or were ekamined in the Courts of various States in the year 1953 ‘Total number Number of = Number of © Number of Name of the State of cases accused witnesses who witnesses ‘REMARKS brought to persons attended the = examined trial Courts I 2 3 4 5 6 Andhra. Fe 313,300 4:38.914 . 2.04439 “Does not include High Courts and Sessions Courts. aoam 36,073 95.480 67,091 Bhopal © 2 ee 2,934 243643 Bibar oe se . 105,006 35245223, 3377726 3:30,842 Bombay. 6 1 ee ee 15577:782, 414,23,693, Cog . ee ee 3:51 Himachal Pradesh 2. wee 5,080 95367 Hyderabad 6 ee ee 1,95.586 2,09,808 1,34)796 1,27,212 Ruch 2 we en 2,817 4,870 Monipot 6 ee 392 Madhya Bharat wee 54,113 1,14,812 991397 85,764 “Madhya Pradesh eee 1,34,163 299.355 1,69,122 1,61,540 Mads 6 ee ee 6,08,722 7:13,853 . 3575,870%Mesore . Orissa 4 . Panjab, . Ratasthan Saurashtra , ‘Travancore-Cochin Utiar Pradesh . Vindhya Pradesh West Bengai 915335 . 515340 . 1,38,668 78,650 . 64,467 . 1448498 : 31575266 16,125 31573061 1,335597 202,378 24379555 1,00,655 2,60,767 7,63,616 $,08,124 65541478 3,04,069** 68,408 1,09,484 274364 7276 6,01,008 **Does not include wit nesses examined by the Magistrates under the Municipal Act. Nove:—Figures relating f@ PEPSU are not avail able,Scope of Enquiry. Criticism of existing system of adi General support for existing system. Radical changes not necessary. 4—INDIGENOUS SYSTEM 1. The task assigned to us of suggesting ways and for the improvement ‘of our present system of j administration, does not preclude us from consideri cal or revolutionary measures which may make it re suitable to our needs. | 2. It is said in some quarters that the present syst of administration of justice does not accord with the pattgrn of our life and conditi We are told that large s Of our population are illiterate and live in the villages. These conditions demand, it is said “a system of judicial adzpinis- tration suited to the genius of our country” or “an ingigen- ous system”. Even the Uttar Pradesh Judicial Reforms Committee of 1950-51 Btated, though by a majority thpt “it. cannot be denied thati the rules of procedure and evidence which they (the British) framed to regulate the proce in court, were in some cases foreign to our genius aj many cases were made a convenient handle to defeal delay justice”? 3. In the circumstances, it became our duty to opinion on these views. The answers we have state with almost complete unanimity that the system has prevailed in our country for nearly two centuries t British in its origin Has grown and developed in conditions and is now: firmly rooted in the Indian soi would be disastrous ahd entirely destructive of our | growth to think of a!radical change at this stage ol development of our country. It has been pointed ou! those who have supported a reversion to an indigenou: 1em of judicial administration have not really applied. minds to the question. It would be ridiculous, it is for the social welfare: State envisaged by our Constit which itself is based largely on the Anglo-Saxon nx think of remodelling its system of judicial administ1 on ancient practices, #dherence to which is totally able to modern conditions and ways of life. We mi well, it is said, think af rejecting modern medicine ai gery and content ourtelves with what the ancients and practised. : 4. Nevertheless, we must not fail to distinguish be’ the essential principleg of our present system and its diary features like clumsy ai cumbrous procedurt should not be forgotten as pointed out earlier that charged with fashioniag our laws, have while regardit English laws and institutions'as a model, conscioush SReport, Page t ry2. continuously gthempted to modify mould them to suit. Indian life and Indiay conditions. at atterapt wes con— tinued throughout the period of British rule with the subse- quent association in an ever-increasing degree of Indiam legislators, Indian Judges and Indian ‘administrators in the making of laws and the administration of justice. If may be that we have failed Ohen. laws and our court systems and procedures conform, iently to the needs of © our people. To that extent, go doubt, they require modifica- tion and adjustment. We have endeavoured to give atten- tion to these points of view; but sueh changes can only be: made within the framework of a system suited to our pre- sent conditions and needs, which are the needs and condi- tions of a highly organized welfare spciety with a developing industrial economy. We haye, therefore, in considering the changes which are necessaqy and practicable made a dis— tinction between the fundamentals which must exist in any modem system for the administration of justice and the: procedures and practices by: which the system is to be ope- tated. We agree with the observatiqns of the Uttar Prades: Judicial Reforms Committee! that “the need of the hour is that rules and procedures and evidence should be so simpli- fied that justice may be available te the rich and the poor: alike and that it may be pyompt and effective”. But sim- plification cannot mean a gacrifice. of fundamentals andj essentials. Perhaps, as poigted out:in a note of dissent to! the report of the Committee, “the real need of the hour is! the inculeation of a higher sense of duty, a greater regard! for public convenience. greqter efficiency, in all those con-? cerned in the administratioy of justite.”* In any case which-! ever way our needs are looted at, little is to be gained by an insistence on what has been callad an indigenous system or a system suited tc the genius of our country. 5. However, we shall briefly endeavour to gather the essentials of such an indigenous system as existed in our’ country prior to the advent bf the British and point cut that the essentials of our ancient system were not very different/ from those of our present system. [ at a stidy of the vast is very ning fof the future. But it jt a sysl of judicial adminis-i wth its advance is mould-. ‘ions the existing social frorg stage to stage its needsi any system which governs the: Ss comppnent parts would also! ion. In considering the ancient! system and contrasting it with the present judicial system,| we must always keep in ngjnd the. ferences in the struc-| wae anu conditions of sociely as it existed then and as it is? today. L It is undoubtedly true desirable when we are pl should not be forgotten tration is a matter cf slow. structure. As society adv: alter from time to time functioning of society or call for progressive modific: —— Report, Page 3. *Report, Page 127.‘The Hindu System, “The Mus- im system. 26 It is not easy to discover the details of the system of judicial administration which obtained in India prier to the introduction of the present system by the British.. The materials upon whieh we can rely are scarce and. fragmentary. 6. It is clear that there were two systems one of which may be designated the Hindu system! The outlines of the system have to be gathered from various ancient buoks such as the Smritis, Commentaries and Digests. These books yield us valuable information but are by no means compre- hensive; moreover they differ a great deal in regard to the details. As these books relate to different periods, it is rot possible to reconstruct a well-defined system with reference to them. Many of its fundamental features can be derived from them. In his book on the Hindu Judicial system, ‘Sir S. Varadachariar concludes that “whenever, and wher- ever and so far as circumstances permitted, attempts were all along being made in Hindu India to administer justice broadly on the lines indicated in the law books”. 7. The second system may be styled the Muslim system which was based upon the writings of the Muslim jurists and practices of Islamie countries. This system was, how- ever, never in exclusive use in our country. Most of the Muslim rulers followed a policy of non-intervention in ¢ivil matters and permitted the Hindu institutions to function. However in cases whete the dispute arose between a Mus- lim on the one hand and a Hindu on the other, or between two Muslims, the Muslim tribunals claimed exclusive juris- diction. In the sphere of administration of criminal justice, the Muslim system prevailed subject to some exceptjons. The system was not popular with the large mass of; the people but was in vogue in large parts of the country at the time of the introduction of the present system base cn the British model. It 1s, we think, unnecessary to congider the Muslim system in the present context. 8 The Hindu system as outlined in the law bpoks reveals a gradual development. In its early beginnings it was more or less a tribal institution the tribunal disperjsing justice being the assembly of the village, the caste, ax the family. These may be called the popular courts and they seem to have been the earliest tribunals in the coustry. They, in fact, were a part and parcel of the social structure. T 3In portraying the Hindu Judicial System, we have dr: the following ‘sources : me Sv awn largely from ® Berolzheimer : The World's Legal Philosophies, ii) S. Varadachariar : Hindu Judicial System. ; ‘Thakur : Hindu Law of Evidence. iv) By Sen: Hindu Jurispradence. () K.P. Jaiswal ; Hindu Polity, Sen Gupta : Sources of Law and Society in Aucient Iddia. (wi) N 3 Sen Gupta ; Evolution of Ancient Indian Law. «ii *Page 258.27 The territorial unit was the village which in those days enjoyed a considerable measure of autonomy. There arose and developed courts, if such a term could be applied to them, of the family, the caste and the village. Though there is no authority for the view that these popular tribunals derived their powers from the king, such a view slowly came to be held. It is not possible to gather with any certainty the exact scope of the functions of these tribunals. Colebrooke asserts that they indicated merely a system of arbitration. There is a suggestion in some texts that before resort could be had to the Royal courts, local remedies had to be exhaust- ed; but whether this was ever the correct position, it is diffi- cult to say. Most of the later Hindu rulers and the Muslim rulers were mainly interested in the collection of revenue and the retention of the authority of these organisations facilitated this task, Attempts were made for the integra- tion of these popular courts with the Royal courts but they did not succeed principally because of the decay of the Hindu Royal power after the time of Harsha. 9. Though ancient writers have outlined a ‘hierarchy of Structure courts as having existed in the remote past, the exact struc- of courts, ture that obtained cannot be ascertained with any definite- ness; but later works of writers like Narada, Brihaspathi and others seem to suggest that regular courts must have existed on a considerable scale, if the evolution of a complex sysiem of procedural rules and of evidence can be any Buide. Popular tribunals, particularly the village courts surviv- p ed for a long lime and existed even at the time of the com- tribunals, mencement of the British rule in India, Their continuance was favoured by their antiquity and the absence of zeny other effective tribunals within easy reach; the structure of the village society in those days; the nature of the prin- cipal functions which these tribunals discharged which - were conciliatory; and the non-interference by local rulers - with the working of these tribunals. In contrast to these popular tribunals, the Royal tribu- nals were subject to frequent changes. Except for the fact that ancient literature spealis of the: King as the source of dharma and regards him as'charged with the duty of pro- tecting dharma, there is nothing to show that the king per- ‘sonally was incharge of the administration of the law. He administered law and justice generally through officers or the sabhas appointed for the purpose. But though the details of the working of these courts are not available, there is evidence that a procedure of a specified kind was being Royals folluwed im these Royal tribunals. Obviously, systematized " rules were not called for in the popular or village courts; but some sort of definite procedure seems to have obtained in the Royal courts. It must not als- be forgotton that thePleadings. E. idence. ‘Witnesses, 28 law enforced in those days was not, apart from specific edicts, statute law but.was moral law. Tt was regardefl as a sacred and religious duty to Vindicate the truth and uphold the righteous and ish the wrong-doer. . 10. Under the andient precedure, every person had a right of approach to the judivial tribunals. The court was bound to hear him and take necessary action. There appears to have been no court fee for the institution of the sult, though there was provision for the payment of a small percentage of tHe value of the claim by the successful party. What may be.called the abuse of the right of suit was checked by elaborate rulés insisting on an early fesort to court or the taking of certain other active steps My the arty. Litigation wag discouraged amongst persons ¢land- Ing in particular relationships. Fines and penalties could be imposed on persofs who ¢ame forward with false and unfounded cases. On the criininal side, it was the dity of the officers of the King to bi before the court pgrsons accused of certain specified offences. ' L 11. Rules also provided that following a plaint there should be a written ly by the defendant. A reference is made also to a proce@ure for: clarification of the poists in dispute analogous to the framing of issues. This wab fol- lowed by the trial atiwhich evidence was recorded Hefore the final stage of decigion by the court was reached. The rules also provided for ex parte decisions ij case of the non-appearance of the defendant. could be amended at any time. before the defendant a) ed and put in his answer. THe defendant had to mi his answer in the prese of tha complainant and it was the rule that the answer, should.‘méet the grounds rai: by the plaintiff or the cdmplainant and should be clear! con- sistent and free fron obscurjty. The answer could] take the form of an admissjon, denial or special pleading orfeven. a plea of a former judgment. : In the case of an admigsion, a decree followed imnjediately; in other cases, evidencp had to be led by the party on whom the burden of proof lay. The expression of “‘htrden of proof” was understoo practically the same gense as it is today. Thakur i; Hindu Law of Evidertce refeys to the application of{such important principles 4s the exclusion of oral by doc tary evidence, the juirement that evidence shoul direct and the exclugion of hearsay evidence in courts. i 12. Witnesses were examimed by the court in the pre- sence of the partigs. Provisions also existed the summoning of witnestes or the ‘examination of witqesses on commission. The texts lai down that the judge Id treat the witnesses gently, tliat none should be ished on mere suspicion that’ sive evidence of jgwilt29 should be available before cqfviction, ‘There is aise a seg- gestion that the judge himself could bndertake the exéthi- nation of witmesses and that guch an ation could be ofa thorough-going character; quite ppssibly this was so for the reason that neither a polide inves! ting agency nor the legal profession appears to have existed in those days. There is, however, no suggestion that the Hindu system corresponded to the inquisitorial protedure that at present obtains on the continent, 13. It may be noticed that the rules also provided for fhe impleading of the legal represetmtatives of a deceased iy. lig. Repreventae tives, 14, The decision of the it was pronounced imme- Judgement. diately after the conclusion of the trial. Even in those days, the difference in the conseatences of a judgment on the merits after contest and a judigment passed ex parte seems to have been recognized. 15. It is not quite clear from the ancient books whether Appeal the decision of the Royal court was final or was subject apdRe- to a review or appeal. In the case of the decisions of the ¥*- popular courts, it seems likely that they could have been taken in appeal to the Reyal courts. Sufficient indica- tions, however, exist to shi that where a court gave a decision in which the King (lid not personally participate, the matter could subsequently be brought before him. In certain cases, the matter cpuld be re-heard, possibly on the basis of new evidence and a judgment could also be set aside on the ground of ftaud. We have attempted only ‘a brief turvey of the structure and the features of the syatem as it existed in the past. To go into greater detailiappears to us to be wholly umnecessary. 16. Even this brief picture is sifficient to show how ‘unsound is the oft-repeated. assewtion that the present system of administration of justice-ig alien to our genius. Tt is true that in a literal.sense the present system may be regarded as alien, It ia undowttedly a version of the English system modified inj some ways to suit our condi- tions. The English system|which tad developed through the centuries was pruned 6f its torical anomalies and technicalities and made laptablt to the conditions in ‘India. But it is easy to seq that im its essentials even the ancient Hindu system commprised:these features which every reasonably-minded 9 wollld acknowledge as the vessenial features of any sy#tem of judicial administration, whether British or other, We have already indica that such features as the rules pleading, the manner in which plaints were to be drawh, the devices to meet ah abuse of the right of quit. the} miles of evidence, the order in which litigation Hd piriteed, the exelitsion of similarities ith pre- ent system.Benefits of popular courts. The posi- tion to- day, 30 oral by documentary evidence, the rule that evidence should be direct, thé rule that hearsay evidence should be excluded, the principle of the burden of proof, the pro- vision for appeal or review are common both to the aricient and the present system, We can even hazard the view that had the ancient system been allowed to develop normally, it would have assumed a form not very much different from the one that we follow today. 17. The reason for the success of the ancient system mainly lay in its popular courts. As we have scen these popular courts were founded on community or caste. There ‘was no such centralization as now obtains by reason of the growth of a strong centralised system of Government, Each village was sufficient unto itself and managed its own affairs without any interference from the King. Their sustaining force was the respect which people had for customary law which, in fact, was the only law prevalent at that time. The group pattern of the then social orga- nisation favoured their successful functioning. 18. Can we in the present social structure think of 2 reversion to the earlier pattern of judicial administration? ‘The law that is administered today is no longer the cus- tomary law. In fact, thousands of statutes and regula- tions control down to the minutest detail the lives and activities of every citizen of this country. The Legisla- tures both at the Centre and in the States have undertaken reforms of a far-reaching nature affecting the well-being of millions of citizens, Recently, it was authoritatively stated that between Ist January 1953 and 30th November 1957 Parliament had passed more than three hundred and fifty bills and in the four years 1953 to 1956, the State Legislatures passed two thousand five hundred and fifty- seven Acts out of which as many as two hundred’ and seventy-five Acts dealt with land reform.! In the fpost- Constitution period. Parliament has passed about: six hundred Acts. In addition about cighty-nine Ordinances, twenty-one Regulations and sixty-two President's Acts have been promulgated. A Welfare State has necesgarily to undertake legislatidn on an ever widening front, if the ultimate aim of a so¢ialistic pattern of society operating within the domain of the Rule of Law is to be evoived by democratic process. The enormous legislative cutput of Parliament and the State Legislatures calls for trained per- sonnel to implement them. No one can assert that im the conditions which govern us today the replacement ofi pro- fessional courts by courts of the kind that existed in the remote past can be thought of. 1, Address of the Presidaiit of Indie at the.inauguration of the Indian Law Institute : Bulletin of thp Indian tw fnstitate Apel 1958, page