Are not the civil courts the real ‘constitutional courts’?

Mathews J Nedumpara
1st July 2020

In the last two decades or so, we have often heard the elite lawyers in Delhi referring to the Supreme Court as constitutional courts which gives the impression to the common man that the Supreme court and High courts are the only courts empowered to interpret the constitution. The question is, in doing so, are they not committing a fraud on the constitution. I have, in my article titled, ‘Ten myths of constitutional law’, dealt with at some length of the falsehoods which have become gospel truths and to doubt which, is nothing but sacrilege. The foremost of such myth is that judicial review is the exclusive province of the High courts exercising its jurisdiction under Article 226 and the SC under Article 32. The necessary corollary thereof is that there is nothing like “judicial review of legislative and executive action” known to law in India prior to the Constitution coming into force. Is it true? The answer is an emphatic no.
Soon after the first freedom struggle of 1857, the administration of India, which was under the control of the East India Company was taken over by the British Government by virtue of the Government of India Act of 1858. In England, the laws remained yet to be codified and the body of common law were to be found primarily from 4 sources, namely, Roman law, custom, statutes and precedents. The Government of India Act was not an ordinary law, but the defacto Constitution of India. The Government of India Act of 1858 was replaced by the Government of India Act of 1915 and 1935. If one would ask me what is the real basic structure of the Constitution of India, I would say it is the Government of India Act of 1935 and not what the Supreme Court has said in Kesavananda Bharathi’s case.
In England, the Parliament which consists of the House of Commons, the House of Lords and the Queen, is supreme. An Act of Parliament can make a man a woman and vice versa. No courts can hold an Act of British Parliament void, though Chief Justice Edward Coke in Dr. Bonham’s case, 1605, asserted that if the Parliament were to make one of the parties to a dispute an arbitrator thereof, such a law is void ab initio, one which never ever existed in the eyes of law. Iniquum est aliquem suae rei esse judicem- it is unfair for someone to be a judge in his own affairs. However, Chief Justice Coke’s assertion is refused to be accepted even today. To repeat, in England, the Parliament is supreme and the doctrine of ultra vires is unknown to law, for there does not exist a written constitution. But so far as India is concerned, an Act of the federal or provincial legislature, if it is beyond its law making power, is ultra vires of the Government of India Act and was liable to be declared so, so too, statutory rules, if it is ultra vires the statute by which it was created. A suit will lie in an ordinary civil court. The civil courts, in addition to the declaration was competent to grant injunction. By virtue of Article 395 of the constitution, the Government of India Act has been repealed. The Constitution came into existence in its place. Art 124 of the Constitution speaks of the Supreme court of India, Art 216 speaks of the HCs, Art 233 of subordinate courts and Arts 323A and 323B of the various tribunals. By virtue of Article 372 all laws existing at the commencement of the Constitution continue to be the law of the land.
The Constitution did not take away the jurisdiction of the ordinary civil courts as a court of plenary jurisdiction, empowered, competent and duty bound to embark upon any controversy of a civil nature unless barred. In other words, the jurisdiction which was vested in the civil courts to declare an Act of Parliament or a statutory instrument as void or valid, remained in full force. Article 32 or Article 226 in no way curtailed the jurisdiction of the civil court, for the jurisdiction conferred on the SC was to grant only the 5 writs mentioned therein and that too for the enforcement of fundamental rights. The jurisdiction conferred on the HCs under Article 226 is substantially the same, for the founding fathers in no way intended to take away the jurisdiction of the civil court and vest it in the HCs under Article 226. There can be no dispute on this proposition.
The intriguing question is, if under Articles 32 and 226 no declaration that an Act of Parliament is unconstitutional could be sought and such a relief could only be sought in an ordinary civil suit, how come today, not a single suit is instituted anywhere in this country for a declaration that an Act of Parliament or statutory instrument is unconstitutional and void and all such reliefs are sought by way of a writ petition. I had occasion to go through writ petitions filed in the SC challenging the constitutionality even of a constitutional amendment including the NJAC case and other petitions challenging an Act of Parliament or rules. The reliefs sought for is a writ of Certiorari in some cases and in others a writ of mandamus! How could a writ of Certiorari lie, for certiorari and prohibition will lie where an inferior court or tribunal acts without jurisdiction, in excess of jurisdiction, fails to observe the principles of natural justice or act contrary to law. A writ of prohibition will lie to prevent such illegal action. Mandamus will lie to compel a judicial or quasi judicial authority to discharge its duty or to injunct it from acting contrary to law. I have discussed the issue with many AOR friends of mine. They have told me that the Registry will not accept their petition unless a specific writ is sought for and therefore, even where a declaration is the remedy to be sought, they are compelled to seek a writ of Certiorari and/or mandamus. It is indubitable that the founding fathers did not conceive Articles 32 and 226 to be in substitution of the plenary jurisdiction of the ordinary civil courts. The concept of judicial review has taken deep roots in India even prior to the coming into force of the Constitution and the declaration of ultra vires was secured by instutitution of an ordinary civil suit. Even remedies like mandamus was secured by institution of a suit, nay, a suit for mandamus.
In this context, it is necessary to deal briefly with the writ jurisdiction. During the times of the East India Company, by virtue of charters granted by the crown, the Supreme courts of Calcutta, Madras and Bombay came to be established. The charter also provided in express terms, the power to issue writs, the very same power which the King’s Bench was invested of, namely, writs of habeas corpus, Certiorari, quo warranto, mandamus and prohibition. By the High Courts Act of 1861, the Supreme Courts were abolished and the SCs of Calcutta, Madras and Bombay became High courts. Under the High courts Act of 1861, enacted soon after the administration of India was taken over by the British government, High courts of Allahabad, Lahore, Punjab, etc. were established. But these HCs were not vested with any jurisdiction to issue prerogative writs. However, in the year 1931 the HCs were conferred the power to grant certain writs of a criminal nature, for instance habeas corpus, by the amendment to the CrPC.
In short, the concept of judicial review took deep roots in India even prior to the coming into force of the Constitution. The forum was the ordinary civil court, the procedure was an ordinary civil suit. The only restriction in terms of Order 27 A was that notice was to be given to the Attorney/Advocate General. During the British era, a large number of civil courts were established in different parts of British India, district centers. To the common man, justice was accessible at his door step, even to seek a declaration that an Act of the federal or state legislature was ultra vires. 70 years down since independence, such a relief can be sought, in reality, in a HC under Article 226 or in the SC under under Article 32. There is a misconception which has taken deep root that civil courts have no power of judicial review. Such an argument was raised before the constitution bench in the Sabarimala case when its maintainability was questioned by the respondents who opposed the PIL of the activists whose plea was that the prohibition of entry into the shrine based on faith was unconstitutional (kindly see para 55 of CJI Deepak Mishra’s judgement). A PIL which created so much of unrest in Kerala came to be entertained because of the misconception that the civil court has no jurisdiction of a judicial review of a legislation.
To conclude, one must question if what I have written above is indeed correct, which nobody has so far questioned for I have raised these contentions many times in the past, how come such myths assume monstrous proportions. I consciously use the word monstrous because this misconception has denied crores of ordinary citizens living away from the state capitals and Delhi access to justice, so too, thousands and thousands of brilliant lawyers, most of them first generation, practicing in district centers to practice constitutional law. The elite lawyers in Delhi have created an aura of intellectual supremacy and the constitutional law a ‘rocket science’ they alone can learn and interpret. Under the constitutional scheme the Supreme court’s power to interpret the constitution is primarily as a court of appeal, save for a few exceptions. The real constitutional court is the civil court. HCs like Bombay, Calcutta, Madras and Delhi are invested of ordinary civil jurisdiction. Most of the HCs only exercise appellate jurisdiction. Apart from the conscious design of the elite class of lawyers to deprive the ordinary civil court of its jurisdiction as constitutional court, there is a mischief in the form of a proviso to Section 113 of the CPC, which was inserted after the constitution came into existence which requires the civil court to make a reference to the HC where the validity of any Act, ordinance, regulation is involved. The said proviso is to the detriment of the interest of the common citizen. But it is within the powers of the Parliament or state legislature to do so.Even if the proviso is not repealed, if we could kill the monstrous myth which I have dealt with above, then the suits challenging judicial review of legislation will be instituted in the ordinary civil courts. If that happens, Justice will be accessible to the common man.