Administrative Reforms qua Judicial Reforms

The pendency of cases in Court of Law is a big challenge for Indian judicial process. This issue not only affects litigants but also creates a threat to national resources. It also violates Constitutional rights of “Speedy Trial” guaranteed under Article 21.

When we talk about pendency of cases, we generally consider the cases pending only in Civil and Criminal Courts, High Courts and Supreme Courts. We don’t consider cases pending before Tribunals, Revenue Courts and other quasi-judicial fora. Litigants whose cases are pending before the said quasi-judicial bodies, also have the rights of speedy trial, as cases before them are in relation to valuable rights of the citizens of India. A State without Litigation cannot be thought of; but being a Welfare State, efforts should be made to reduce litigation. The Latin Maxim “interest reipulicae ut sit finis litiuum” means it is in the interest of the State that there should be an end of law suit.

It is experienced that in Civil Courts and High Courts many litigants come after getting unsuccessful results in Revenue Courts and other quasi-judicial authorities. This is owing to the fact that under Article 227 of the Constitution of India, High Courts have Supervisory Jurisdiction. Furthermore, under Article 226, High Courts may issue Writs against orders, where no appeal lies in respective statutes. If quasi-judicial authorities do not perform their duty in proper manner, the unsuccessful party is bound to come before the High Courts. It means institution of cases in High Courts, to a great extent, depends upon the performance of quasi-judicial authorities.

Recently, while observing the functioning of quasi-judicial authorities, the Central Board of Excise and Customs issued Instructions to all its senior officials for following due process of law for adjudicating matters, conducting hearings and recording submissions of both parties in their judgments. The said Instruction noted that in its Order No 40344/2016 dated 29th February 2016 in the case of Commissioner of Customs (Import) Vs Do Best Info way, the Custom Excise & Service Tax Appellate Tribunal (CESTAT) has commented adversely at paras 9 to 13, and highlighted the casual manner in which the matter was handled by the Adjudicating Authority and the Commissioner (Appeal).

Process of passing Administrative Orders

The administrative officers, while passing their orders, ought to follow Departmental manuals, circulars and own administrative discretions. They must also base their findings on the recommendations of their subordinate staff, but not fully depend on them. While passing orders, they must exercise their own discretion and good conscious. They must not blindly follow their superiors. They must follow Rules of Law and procedure recognized by principles of natural justice. They must be guided by Judicial Precedents. If administrative authorities adopt such practice and procedure in adjudicating matters and passing orders, then automatically appeals against their orders would reduce.

Suggestions for Administrative Reforms:

  1. It is surprising that in many States, no statutory Rules have been framed for procedure to be followed in quasi-judicial proceedings. Like Civil Courts Rules and Orders, Rules of Procedure must be framed for quasi-judicial proceedings also. In this regard, the President of India and the Governors of States are empowered to frame Rules under Article 309 of the Constitution of India for central and state government employees respectively.
  2. The Government of India had framed the National Litigation Policy, in which the Central Government has expressed its vision/mission that its aim is to transform Government into an efficient and responsible litigant. This Policy expects that every State will formulate similar Litigation Policy. It is in the interest of society and Nation that every State must formulate a Litigation Policy.
  3. The States should also issue Administrative Circulars demonstrating how administrative authorities should pass orders in quasi judicial proceedings. In these circulars, specific guidelines must be given to the authorities. That will help to avoid procedural defects in quasi judicial proceedings.
  4. There should be an effective mechanism to control administrative officers working under undue political pressure. Until and unless administrative officers are protected from unnecessary harassment, effective and unbiased rulings cannot be expected from them.
  5. As the National Litigation Policy declares – “Government must cease to be compulsive litigants. The philosophy that matters should be left to the Courts for ultimate decision has to be discarded. The easy approach, ‘let the court decide’ must be eschewed and condemned”. In this light, one important strategy could be to appoint in all government departments Law Officers having suitable qualification and experience in the field of law, so that cases could be scrutinized and opinion on merits of each case could be taken at the initial stage. In those circumstances, the department will be prevented from unnecessary litigation.


The third joint conference of Chief Justices of all high courts and Chief Ministers of all states was held on 24 April 2016 in which the core agenda was “pendency of cases in the High Courts and Subordinate Courts”. In my humble opinion, Administrative Reforms is the foundation of Judicial Reforms. If we think about Judicial reforms then we must think about Administrative Reforms. It is imperative to understand that it is not the Union of India or other state governments that are parties in maximum cases against the government. A large number of such cases filed in Courts are the consequences of Government Orders.

Advocate Fees in Madhya Pradesh and its revision

In India, the Advocate fee for Advocates practicing in High Courts and Subordinate Courts is payable as per Rules framed by concern High Courts. In the Context of Madhya Pradesh, we must refer the Madhya Pradesh Civil Court Rules, 1961 herein after called “The M.P. Rules”. These Rules are framed under Section 23 of the Madhya Pradesh Civil Court Act, 1958. As per Section 23 of the aforementioned Act, the High Court of Madhya Pradesh is delegated the powers to make Rules. Obviously, the High Court is the Rule Making Authority. In exercise of these powers, the High Court of M.P. had framed the MP Rules. Under Rule 523 in Chapter 24 of Part 6 of these Rules the table of the Advocate Fees has been prescribed. According to these Rules, in the minimum advocate fee is fixed INR 20 and maximum advocate fee is fixed INR 5000.

In 1961 when these Rules were framed, the value of Indian rupee was so high that in 1961, some of class III and class IV employees were getting salary of Rs. 20. The salary of Government Servants was so enhanced in every five years as per the recommendations of pay commissions. But advocate fee remains unchanged since 1961. It is pertinent to mention that in the exercise of the powers conferred by clause (v) of the Explanation to Section 48 of the Income Tax Act, 1961, the Central Government has issued Notification on the Cost Inflation. According to this Notification, by considering basic year of 1981-82 and determining Cost Inflation Rupees 100.00 in that year, the Cost Inflation Index in the year 2014-15 has been fixed Rupees 1024.00. This means that the rise in Cost Inflation Index is more than ten times.

Apart from these facts we must realise the ground realities that in ordinary course, no lawyer can work on the fee of rupees 20 only. It could be analysed from media reports published from time to time. On the other side, the Civil Courts follow the Rules for allowing the Costs of litigation. The Costs of litigation include Advocate Fees. This means the successful litigants cannot claim the real costs of litigations because there are lot of variations in the Advocate fee payable as per Statute and fee payable practically. This is a big threat to the Social Justice System.

Although, it is admitted that there is no comparison of Advocates and workmen employed in different fields. But it is beneficial to refer the Minimum Wages Act, 1948 which provides the wages security and time bound enhancement with Cost of Living Allowance for the employees working in scheduled employments. At present, the Advocate fee is much less then minimum wages fixed by State Government.

It is pertinent to note that the Law Commission of India has submitted its 240th Report in May 2012 which addressed the issue of “COSTS IN CIVIL LITIGATIONS”. This report says that the Costs of the Civil Suits include the Advocate fees. The Law Commission in the Para 3.14 of the report opined that it is equally urgent to revise the Advocate Fee provided in the Schedule to the Rules, as most of the said fees are outdated and have no correlation with the prevailing rate of fee.

Para 3.17 of the report, is mentioned below:

3.17 While stressing the need to provide for awarding realistic advocate’s fee by amending   the  relevant   Rules periodically, a  serious fall-out of not levying actual, realistic cost has been expressed in the following terms:

“A litigant, who starts the litigation, after some time, being unable to bear the delay and mounting costs, gives up and surrenders to the other side or agrees to settlement which is something akin to creditor who is not able to recover the debt, writing off the debt.  This happens when the costs keep mounting and he realizes that even if he succeeds he will not get the actual costs.  If this happens frequently, the citizens will lose confidence in the civil justice system.”

 In this regard, we should also refer the Judgement of the Supreme Court passed in the case of Rameshwari Devi versus Nirmala Devi, (2011) 8 SCC 249 in which it was observed that Costs should be realistic keeping in view ever increasing litigation expenses. In the light of aforementioned Judgement the Advocate Fee structure must be fixed in the realistic pattern.

        The Law Commission of India in its report referred so many Rules effective in the States and in Para 6.5 says that the Andhra Pradesh Advocate Fee Rules, 2010 are quite realistic and reasonable. In the light of aforementioned factual and legal position the Advocate Fee structure prescribed in Madhya Pradesh Civil Court Rules, 1961 must be revised.

Joint conference on judicial reforms

On 24 April 2016 a joint conference of Chief Ministers and Chief Justices of all states is being held at New Delhi. The conference shall be presided by Chief Justice of India. In this conference the core issue of concern in Judicial Reforms. It is pertinent to mention that earlier on a conference was held on 5th April 2015 in which a comprehensive agenda was drawn up for the Conference. In these conferences the great cause of concern is with 2.64 crore undecided cases in the subordinate courts and 42 lakh cases in the High Courts,  expeditious disposal of cases is the key issue to be discussed.

Undoubtedly, in this conference the top Jurists and Executives are participating and they are very conscious about the issues which shall be discussed. But the author with great respect would like to draw the attention of the policymakers on following points:

  1. In this Country, most of the people resides in rural area and connected with agricultural lands. Their disputes regarding  Agricultural lands are triable by Revenue Courts under tenancy laws. In Revenue Courts, the disputed cases may take much time. Unfortunately, the cases pending before Revenue Courts are not taken into consideration while framing National Litigation Policy, 2015. Resultant, the poor former of this country got no relief on this count.
  2. It is experienced that maximum cases in the High Courts and Subordinate Courts are being filed by persons being aggrieved with the orders of administrative authorities. It means the administrative authorities may play major role to reduce pendency of court cases. If administrative authorities follow proper procedure prescribed by Rule of Law, the disputes may be resolved at their Laval, the institution of Court Cases shall automatically reduced.
  3. In the year of 2005 the Law Commission of India, in its 192nd Report on PREVENTION OF VEXATIOUS LITIGATION recommended the requirement to enact a Central Legislation on this subject, which is very relevant today.

Frivolous and Vexatious Litigation: An overview

Vexatious and frivolous litigation killsIndian courts face a big challenge of pendency of cases filed therein. The common man does not want to involve himself in legal proceedings. However, being aggrieved, he has no other option but to seek reliefs in the courts. In such situation, initiation of huge amount of litigation and the resultant pendency of cases in courts is a natural consequence.

The Report no. 221 of the Law Commission of India, submitted in April 2009 is dedicated to the “Need of Speedy Justice”.  Forwarding this report to the Union Minister of Law and Justice, the Government of India, Dr. Justice A.R. Lakshmanan, Hon’ble Chairman of the Commission observed that “Mounting of arrears of cases in courts, particularly in High Court and District Courts, has been a cause of great concern for litigants as well as for the State.

Undoubtedly, there are many factors responsible for huge pendency of litigation in courts, including the fact that the courts lacking sufficient resources and man power to handle the quantum of litigation that is initiated therein. It is true that frivolous and vexatious litigation also plays an important role in creating backlog. Looking at the gravity of the situation, the Law Commission of India has made credible efforts to prepare its 192nd Report on Prevention of Vexatious Litigation in June 2005 (hereinafter “the 192nd Report”). Till date, the essential recommendations of the Law Commission made in the said Report have not been complied with. The 192nd Report refers to worldwide legislations and judicial precedents on the subject and recommends enacting an effective statute at the central level to curb the problem of vexatious litigation.

It is pertinent to mention that in the early years of independence, the Madras Vexatious Litigation (Prevention) Act, 1949 was passed. In 1971, the state of Maharashtra passed the Maharashtra Vexatious Litigation (Prevention) Act, 1971. In the year 2005, though the state legislature of Madhya Pradesh passed the Madhya Pradesh Vexatious Litigation (Prevention) Act, the same has not yet come into force because the Government of M.P. has not issued any notification in this regard. In Rajasthan, the Rajasthan Vexatious Litigation (Prevention) Bill, 2015 has been recently introduced, which bill awaits the nod of the assembly.

It is also relevant that the word ‘frivolous’ should not be equated with the word ‘vexatious’. The concepts of the legal terms in the 192nd Report are well described in the following words:

“The concepts are also quite different. As will be seen in the ensuing chapter, ‘vexatious’ litigation means habitually or persistently filing cases on the issues in which have already been decided once or more then once or against the same parties or their successors in interest or different parties. But as for as ‘frivolous’ litigation is concerned, a litigation may be frivolous, – without the need for persistent filing of similar case, – even if it has no merits whatsoever and is intended to harass the defendant or is an abuse of the process of the Court.”

Though the Government of India has not introduced any bill in the Indian Parliament on the subject, but the supreme court and high courts of the country have taken this issue seriously and it is noted that in many cases, heavy costs have been imposed on the finding of ‘frivolous’ and ‘vexatious’ litigation. Some instances are below:

  1. In the case of Pradip Nanjee Gala v. STO, (2015) 13 SCC 149, the Hon’ble Supreme Court imposed the cost of Rs. 5,00,000.00 on the appellant for filing a frivolous appeal.
  2. In the case of Vijay Malya v. Enforcement Directorate, AIR 2015 SC 2726, the Hon’ble Supreme Court imposed the cost of Rs. 10,00,000.00 on the appellant for abuse of process of law.
  3. In the case of PGF Lit. v. Union of India, AIR 2013 SC 3702, the Hon’ble Supreme Court imposed the cost of Rs. 50,00,000.00 on the petitioner for abuse of process of law.

Even though the 192nd Report proposes statutory remedies to deter vexatious litigants from initiating futile legal proceedings, it does not suggest any measures to control litigants who are habitually abusing due process of law.

It is ironic that in our parliamentary setup, we still do not have a regulation that effectively deals with the issue relating to frivolous and vexatious litigation. Having said that, there are provisions in the Code of Civil Procedure, 1908, and Code of Criminal Procedure, 1974 that provide some legislative remedies on the issue. The said provisions are summed up herein below:

  1. In the Code of Civil Procedure, 1908, Order VII Rule 11 gives powers to courts in certain circumstances to reject the plaint. If courts exercise these powers strictly, the frivolous petitions may be thrown out at the threshold.
  2. In the Code of Civil Procedure, 1908, Section 35-A provides for compensatory costs in respect of false or vexatious claims or defenses. The maximum limit of the costs is Rs. 3000 or not exceeding the limits of its pecuniary jurisdiction, whichever amount is less. Though, this maximum limit of the cost must be increased and fixed up to two lakhs. In this regard, the necessary legislative amendments must be done by the legislature.
  3. In the Code of Criminal Procedure, 1974, Section 250 provides that in case of discharge or acquittal, the Magistrate may pass an order to pay such amount by way of compensation, not exceeding the amount of fine he is empowered to impose. This statutory provision still needs amendments in these manners:
    • It should be mandatory in each criminal case to award compensation if the Learned Magistrate records acquittal or discharge of the accused.
    • The amount of compensation must be fixed minimum Rs. 5000 and maximum Rs. 50000 in appropriate cases and the powers to award such compensation must be in addition to imposition of fine.

It is pertinent to note that the problem of vexatious litigation has persisted since the ancient age. During Mahabharata, Lord Krishna had killed Shishupal on being aggrieved with frivolous accusations. In 1795, Lord Macaulay, who was the chairman of the Law Commission of pre-independent India, had observed that It is undoubtedly a great evil that frivolous and vexatious actions should be instituted. But it is an evil for which the Government has only itself and its agents to blame, and for which it has the power of providing a most sufficient remedy.” It is indeed an essential requirement that the Indian Government soon sets forth an effective legislation to curb the menace.

Advocate protection ordinance: A proposed statute

The Apex Court had observed that the Advocates are Court Officers, but there is no statute has been passed for the safeguard of the Advocates appearing before the Courts, Tribunals and Quasi Judicial Authorities.In Madhya Pradesh, the Hon’ble Chief Minister, while addressing the Advocate Panchayat on 12 August 2012, had announced that the Advocate Protection Act shall be introduced in the State. Unfortunately, Till today, no Act or Ordinance has been promulgated in the State of Madhya Pradesh.

In the wake of criminal attacks on Advocates and malicious prosecutions against Advocates, it’s necessary to pass an ordinance under Article 213 of the Constitution of India regarding to provide statutory protection to the Advocates from such unlawful activities. some of important provisions must incorporated in this Ordinance:

  • There is should be specific bar from Civil, Criminal and other proceedings against Advocates for the acts done in good faith during the course of Judicial and Quasi Judicial proceedings.
  • There should be specific provision that no court shall take cognizance of any offence alleged to have committed by any Advocate while acting or purporting to act in the discharge of his duty as prescribed by any Statute, without the previous sanction of State Bar Council defined under Section 2(1)(K) of the Advocate Act,1961.
  • It is common experience that Litigants in the Judicial Proceedings use absurd language and imposes allegations without sufficient reasons against the Advocate. To avoid this situations it is necessary to make such provision that use of derogatory language in the Judicial and Quasi Judicial Proceeding against the Advocates appearing on behalf of the either party shall be cognizable, Non-bailable offence.