Sunday, December 28, 2008

Two momentous reports from the Law Commission

The Law Commission's 215th and 216th reports, submitted to the Government recently, deal with important subjects. The reports, which will be uploaded on the LCI's website shortly, have been summarised on the indlawnews.com here, here, and here.

The 215th Report recommends that L.Chandra Kumar judgment of the Supreme Court be revisited by a larger Bench. In 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar [JT 1997 (3) SC 589] held that clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower Parliament to exclude the jurisdiction of the High Courts and the Supreme Court under articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of articles 323A and 323B would, to the same extent, be unconstitutional. The Court held that the jurisdiction conferred upon the High Courts under articles 226/227 and upon the Supreme Court under article 32 of the Constitution is part of the inviolable basic structure of our Constitution. All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls.

According to the Law Commission, the power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court. The very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before the concerned High Courts. If one appeal is considered to be a must, an intra-tribunal appeal would be the best option, and then the matter can be taken to the Supreme Court by way of special leave petition under article 136, says the report.

The LCI's 216th Report is on “Non-feasibility of introduction of Hindi as compulsory language in the Supreme Court of India”. The Report is a response to the recommendations of the Parliamentary Committee on Official Language. The LCI has revisited the highly emotive issue of language, to reject the Committee's recommendation. The LCI could as well have recalled the tumultuous events of 1960s against imposition of one official language in the entire country, and the Prime Minister Jawaharlal Nehru's promise that English will continue as long as people in South India want it. It is strange how the continuance of English is linked to the integrity of the Indian judicial system. There are instances in the Supreme Court when petitioners are allowed to argue their cases in their mother tongue, with arrangements to translate for the benefit of the Bench, but it is English as the medium of the language of our Courts, both in oral, and written arguments, and in the judgments, that has enabled any advocate from any part of the country to argue in any High Court and the Supreme Court.

Both the Reports thus deserve a close scrutiny.

1 comment:

kickinhard said...

Why can't we have good transcription and translation system in the Courts? In a country with so many languages I think this is a must.