UNION OF INDIA Vs. ASHOK TSHERING LAMA

JUDGEMENT

(1.) In both the Civil Appeals being No. 6 of 1979 and No. 2 of 1980, a common question has been raised relating to the amount of Court-fees payable for these appeals and the said question has been, as it should be, heard as a preliminary point. It has been urged by the learned counsel for both the appellant and the respondent in both the appeals that there is no provision in the Sikkim Court-fees Law providing for Court-fees payable for applications under the provisions of the Arbitration Act, 1940, or for any appeal from any order passed on any such application. As the question raised relates to revenue of the State, notice was issued to the Advocate General to represent the State and the learned Advocate-General has appeared in pursuance thereof and has made his submissions. This judgment shall govern both the appeals.

(2.) Arbitration Act, 1940, provides for various types of applications, its anxiety being, as demonstrated in Section 32 and Section 33 thereof, to shut out all suits and to permit an arbitration agreement or award to be enforced, set aside, amended, modified or in any way affected only by applications. The Act has not yet been extended to Sikkim by any notification under cl.(n) of Article 371F or otherwise. But the provisions of the Act have been consistently applied by the Courts in Sikkim from long before Sikkim was incorporated in the Union of India as a component State by and under the Constitution (Thirty-sixth Amendment) Act, 1975, and are continued to be so applied by the Courts in Sikkim to all cases relating to arbitration. The Courts have applied the provisions of the Act not only to arbitration proceedings between the parties, but have also applied the provisions of the said Act in entertaining all applications, appeals and other proceedings as provided in the said Act. Law has been defined by Salmond as "the body of principles recognised and applied by the State in the administration of justice" and to consist "of the rules recognised and acted on by the Courts of justice". If there is a set of principles and the Courts have systematically "recognised", "applied" and "acted on" such principles in matters relating to administration of justice, the principles then acquire the status and force of law. The provisions of the Arbitration Act, 1940, having so long been "recognised", "applied" and"acted on" by the Courts of justice in Sikkim in the administration of justice in all matters relating to arbitration, have accordingly become the laws of Sikkim. To put it in other words, the provisions of the statutory laws relating to arbitration as contained in the Arbitration Act, 1940, have, as a result of their continuous and systematic recognition and application by the Courts in Sikkim, become the laws in force in Sikkim, though not as a piece of legislation. This is also what has been held by this Court in Asharam Agarwala v. Union of India (1978) 4 Sikkim LJ 18, Dealing with the similar question of making of laws by Courts or their Judges, it has been held by this Court in Jas Bahadur Rai v. Putradhan Rai (1978) 3 Sikkim LJ 6 that "if this is characterised as making of laws by Courts, it may be pointed out that the very same thing was done by the Courts in India during the early British period when legislative laws in India were scanty and the Courts in India freely followed and adopted the principles of the English Law in deciding points not covered by the provisions of the Indian Laws in force" and that India being "then a country almost empty of legislative laws", "the void was to a great extent filled up by Courts through their decisions by importing principles of English Law, both Common and Statutory". What was then done by the Indian Courts was obviously clear law making and this Court held further in Jas Bahadur Rai (supra) that the Courts in Sikkim would have to continue to do that amount of law-making until such time when direct legislative laws would begin to hold and occupy the field.

(3.) A learned Jurist (Baxi in his Introduction to Justice Mathew's "Democracy, Equality and Freedom") has very recently said that "in this last quarter of the twentieth century very few people would venture to contest or deny the elementary proposition that appellate Judges not merely declare the law or apply it, but that they also make or create law." I wish the learned Jurist (Baxi, however, does not like the term "Jurist", and prefers the expression "legal scholar") was right and I would have wholly agreed with him if he used the word "should" instead of the word "would" (emphasised above). For I know that not only jurists and legal scholars dispute, but that even Judges disown their power to make and the fact that they do make law. But even the learned Jurist himself is probably not quite sure that "very few people would venture to contest or deny" that Judges "also make or create law", for he has himself said elsewhere (in the Introduction to his "Indian Supreme Court and Politics") that "for much too long the law-persons - Judges, Lawyers and Jurists - everywhere in the world have successfully managed to convince the people of the truth of their lies concerning the nature of the judicial process". I have my doubts as to whether the spell of those "lies" is over, "Lies" is, however, a very strong expression, but such an "illusion", if I may use that expression which the learned Jurist has also used elsewhere, is very much there and as a result of the hypnotic spell of that illusion, many law-persons, rather a majority of them, honestly, though erroneously, believe that Judges do not make or create laws. The sooner we explode the myth, so affectionately nourished by the Britishers and so faithfully cherished by many of us, that ? Judges do not and cannot make law and honestly declare or confess that they do and can, the better. The Law of Arbitration in Sikkim, like many of its other important branches of laws, e.g. the law relating to Civil Procedure, Contract, Transfer of Property and a host of them, is "essentially a judge-made law, as the Judges in the Courts in Sikkim, by regularly and systematically applying and acting upon the provisions contained in the Indian Arbitration Act, 1940 in their Courts, have made these provisions the laws of Sikkim, though the said Act of 1940 was never and is still now not extended to Sikkim as a formal piece of legislation.