REGISTRAR GENERAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This order is in continuation of order dated 20.08.2013 on the issue of separation of Judiciary from the Executive wherever such separation has still not been achieved, in the jurisdiction of this Court, as per the mandate of Article 50 of the Constitution of India, as interpreted by full Bench of this Court in Subhasis Chakraborty v. State of Meghalaya, 2002 1 GauLT 227. In the said judgment this Court noted that in certain areas in the jurisdiction of this Court administration of justice was entrusted to Deputy Commissioners, their Assistants and other village functionaries under Rules applicable for administration of justice. Whatever be the historical reasons for judicial function not being entrusted to the Courts, it was a mandate of the Constitution that "administration of justice be entrusted to judicial officers under the control of the High Court in accordance with the provisions of Criminal Procedure Code and Civil Procedure Code". It was observed that doing so was necessary to preserve the rule of law and for protection of liberty of citizens. The rule of law and independence of judiciary are the basic features of the Constitution. The districts of Dima Hasao (earlier North Cachar Hills) and Karbi Anglong (earlier Mikir Hills) in the State of Assam are tribal areas governed by Sixth Schedule to the Constitution and are not having separation of judiciary from the executive. Administration of Justice Rules contain provisions for administration of justice by executive officers. After the judgment in Subhasis Chakraborty , certain steps have been taken in the said two districts for separation of judiciary but courts have still not been set up for want of infrastructure. Steps have also been taken in the States of Nagaland, Arunachal Pradesh and Mizoram towards this end. Courts have been set up but certain legal issues have cropped up which need to be addressed.

(2.) In the order passed on the last date i.e. 20.8.2013, the issue taken up for consideration was whether after enactment of the "Assam Administration of Justice in the Karbi Anglong District Act, 2009" and the "Assam Administration of Justice in North-Cachar Hills District Act, 2009", Courts can start functioning without any further legislation. In Para 9, it was observed:

(3.) The difficulty expressed by learned Advocate General was that in view of Para 4 of the Sixth Schedule to the Constitution and inapplicability of the Bengal, Agra and Assam Civil Court Act, 1887 (Civil Courts Act), setting up of Courts may not be permissible. On the other hand, learned Amicus Curiae had submitted that no constitutional amendment was required as Para 4 of the Sixth Schedule envisaged village councils/courts in respect of laws enacted under Para 3 and when both the parties were Scheduled Tribes in the said area. Setting up of Courts for all other matters was not inconsistent with Para 4 of the Sixth Schedule. Reference in this connection was also made to the Constituent Assembly Debates. It was further pointed out that after the judgment in Subhasis Chakraborty , even village councils/courts were subject to superintendence and control of this Court under Article 235 of the Constitution. It was submitted that after the said judgment applicability of the Civil Courts Act was not excluded. Since the Civil Courts Act, in terms, extended to the territories then administered by the Lieutenant-Governor of the North-Western Provinces and the Chief Commissioner of Assam, bar against applicability of the Federal legislation to the "excluded area" under Section 92 of the Govt. of India Act, 1935 was not applicable. Section 1(2) of the Civil Courts Act reads as follows: