Salem Advocate Bar Association, Tamil Nadu v. Union of India — (2005) 6 SCC 344

Citation: AIR 2005 SC 3353, (2005) 4 BOM CR 839

Petitioner: Salem Advocate Bar Association, Tamil Nadu 

Respondent: Union Of India 

Date of Judgement: 02/08/2005

Bench: Y.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee

FACTS AND BACKGROUND OF THE CASE

The case involves challenging the constitutional validity of amendments introduced in the Code of Civil Procedure, 1908 (CPC) in consultation with the Amendments Act of 1999 and 2002 which are said to be arbitrary and violative of Article 14 and Article 21. The petitioners highlighted provisions that required Alternate Dispute Resolution (ADR) procedures to avoid delay in civil litigation, limited adjournments, and time limits for filing written statements. However, the Supreme Court dismissed the challenge, but it was noted in the ruling that procedures must be developed for how Section 89 of the Code of Civil Procedure and for that matter other sections have been introduced thru modifications, may need to be implemented.

Three sections that comprised the committee’s report were:

Report 1: Examining different grievances

Report 2: ADR and mediation draft rules

Report 3: Conferences on case management

ISSUES INVOLVED:

1. Whether the 1999 and 2002 Amendment Acts modifications to the Code of Civil Procedure complied with the Indian Constitution. The question was whether any fundamental rights, such as the right to a fair trial or the freedom to appear in court without unjustified limitations, were breached by these revisions? 

2. Whether clear operational procedures pertaining to ADR mechanisms and other provisions created by these changes should be developed for the successful execution of Section 89 of the CPC. Actually, it concerned with making sure that the reforms could be put into reality in the actual world and that the procedural changes wouldn’t lead to misunderstandings or unfair practices? 

ARGUMENTS FROM THE PETITIONERS' SIDE: 

1. The apprehension expressed in the services through courier under 

1. Order V Rule 9: which permits service of summons by party or through courier. 

2. Order V Rule 9(3) and Order V Rule 9-A: which permits service of summons through courier or by the plaintiff. 

3. Order V Rule 9(5): which requires the court to declare that summons have been duly served on the defendant. 

Is expressed that these services would take place outside the courts normal procedure and may culminate into false report service and passing ex parte decrees. 

2. Further it was argued that defendant’s refusal to accept service is susceptible to serious malpractices and abuse. 

3. In light of the Constitution Review Committee’s recommendation, the committee recommends that the Central Government provide significant funding for the establishment of courts that are subordinate to the High Court and that Planning Commission and Finance make significant provisions. 

ARGUMENTS FROM THE RESPONDENTS SIDE: 

1. According to the Constitution Review Commission the committee observed the laws that are administered by the courts that report to the High Court are those that were made by either;

1. The parliament on matters that fall under List I and List III of Schedule 7 to the constitution or;

2. State legislature on matters that fall under List II and List III of Schedule 7 to the constitution. 

2. When an appeal is filed against an acquittal, the registry (State Legal Service Authority) should take action to appoint amicus curie or State Legal Aid counsel for the accused who do not have a lawyer as soon as the four-week notice period has passed. In such a case, it will be assumed that the accused is unable to choose legal representation. 

3. Writ Appeals/letters Patent appeals resulting from the Single Judge’s orders in a Writ Petition must be submitted with simultaneous service on the opposing party’s counsel who appeared before the Single Judge or upon serving of the opposing party. 

JUDGEMENT

Affidavits were found to be admissible as evidence, but the court decided that they shouldn't always be regarded as substantive evidence in court. Verification of affidavits is necessary, and their admission must adhere to the court's procedural standards regarding evidence. The Court made it clear that affidavits might be used as proof, but only if they were verified and adhered to certain legal requirements.

The Court underlined how important it is to provide procedural safeguards against injustice. It acknowledged that while procedural changes were required, it was equally crucial that they did not negatively impact the fairness of the trials or the rights of the litigating parties.

In addition, the Court ordered the formation of a committee headed by Justice M. Jagannadha Rao to determine and recommend suitable operating procedures for the implementation of the amendments, particularly with regard to Section 89 of the CPC to support arbitration, mediation, and alternative dispute resolution mechanisms.

CASE ANALYSIS

In the history of the Indian Judiciary, this case is significant. The foundation for prompt, affordable, and appropriate justice has been established by this pair of cases, the first of which established the amendments and the second of which produced a report on the amendment’s viability. In essence, this aims to lower the annual number of lawsuits filed in the courts. Following the Act of 1999 and 2002 revisions, the case has been cited in a number of civil lawsuits. Furthermore, the trial court can readily implement the model that is offered, which demonstrates the “bright light of proper and speedy justice in the darkness of innumerable cases.” The models guidelines should be correctly adhered to since they are suitable for the Indian Justice System. 

Author(s)- Riya Rao, intern at The Legal Lock, 3rd year LLB student at G. D. Goenka University