Article 1/5: Five simple solutions to save our Justice Delivery System which is in ICU

09.01.2022

Suggestion # 1:

1. Judgements of the Supreme Court are no law of the land but only  precedents, binding only if it is not per incurium/ Repeal Article 141 to bring an end to the tyranny and abuse of precedents.

Law is a simple subject. It ought to be simple because it is all about regulating the conduct of our society, institutions and government. It does not require a great intelligence to understand that it cannot be as complex as rocket science. However, if you enter a lawyers chamber you will find large volumes of law reports, text books and commentaries. Judgments in simple cases, for instance, arising out of a dishonor of a cheque, matrimonial dispute, bail, recovery of debt due to a bank, etc sometimes one will find running into hundreds of pages. Often a litigant, unfamiliar, finds for instance involved in a cheque bounce case or a motor accident case or a matrimonial dispute, that in a judgement running into more than a hundred pages there is hardly any discussion regarding his case but extraction after extraction, pages after pages of cases decided in the past between third parties. The litigant is aghast, he wonders why the judge has taken so much time to discuss about some past cases where he has discussed practically nothing about his own case. However, lawyers and judges find nothing wrong.

Why the lawyers and the litigants perceive things so differently? The reason is simple. The lawyers from the very first day of their practice find their seniors citing large number of judgements in support of their respective cases and the judge listening to them patiently and religiously  referring to the judgements that were cited, nay, quoting them extensively. He would have found the seniors are unable to argue more than one or two minutes without citing judgements even on a simple issue as non observance of principles of natural justice. There are only two principles of natural justice- a) hear the other side, b) nobody shall be a judge of his own cause. But there are thousands and thousands of reported judgments on the same issue enough to fill many almirahs.

We, lawyers and judges find nothing wrong because precedent is one of the major source of law. The founding fathers by virtue of Article 141 gave it further sanctity. Our justice delivery system is paying a great price for what the founding fathers did with a laudable objective namely, to ensure consistency and certainty in law. However, they will be turning in their graves because of the violence we have done to Article 141.

Article 141 did not mean that judgements of the Supreme Court are the law of the land. It did not confer any power on the Supreme Court to make a law but only to declare law. They do not mean that the judgement of the Supreme Court will be binding on those who were not party to it. On the contrary, the founding fathers had only meant that the record of the court will be binding only between the parties whereas the record of the Parliament (legislation) will be binding on all because we are all parties to the record of the Parliament.

The founding fathers had only meant that the principle or ratio of a judgement of the Supreme Court will be binding on those who were not party to it, nay, future litigants as a precedent. The founding fathers couldn’t have ever imagined that a day will come when the lawyers and judges fail to notice the distinction between the concept of res judicata and precedent. For the benefit of the reader, I must add that res judicata means even an erroneous decision of a court is binding between the parties namely, if in a case between A and B, the majority in a bench of 5 judges hold that goat is a dog, that is final, authoritative and binding between A and B. What is determinative is the majority opinion. However, so far as precedent is considered the strength of the bench is wholly irrelevant. The reason alone is relevant.

However, the powerful lobby of lawyers in Delhi to suit their vested interests created a myth, namely, that judgements of the Supreme Court is the law of the land and the determinative test is the strength of the bench and the majority view of the bench.

I don’t think it is an innocent mistake. If it were so that is the failure to notice the difference between doctrine of res judicata and stare decisis (precedent). Their agenda was to rule the country using judiciary as a pawn. They emasculated the Parliament by asserting that the judgment of the Supreme Court in Kesavananda Bharati is the law of the land, binding on the citizens who were not parties to the case and the posterity. The powerful lobby in Delhi further usurped to themselves the executive and legislative powers of “we the people”, using PIL as a tool. A powerful lawyer in Delhi, a PIL Petitioner today claiming himself to represent the people of this country file  PILs and decide what  falls in the province of the executive and legislative policy. They using PIL even rewrote the constitution and decided that judges shall  appoint themselves. The constitution does not contain any provision for Collegium. They created it by further cementing the myth that judgements of the Supreme Court are law of the land which will prevail over the written constitution. Alas, in the NJAC case, the Supreme Court held that a judgement of the Supreme Court in Judges 2 case is the basic structure of the constitution and it cannot be dismantled even by a Constitution amendment.

I know for certain that the elite class of lawyers staunchly support and safeguard the myth which best serves their vested interests, the judgements of the Supreme Court is the law of the land. Because an all powerful Supreme Court would mean that they could bring everything under the sun to the jurisdiction of the court and make rich dividends.

There is another class of lawyers, the vast majority who genuinely believe that the judgements of the Supreme Court, a large mass in terms of numbers and volume contain new principles of law which the court has evolved for the first time where none existed.

I have been a doubting Thomas for pretty long and particularly since 1994 when I went through the Judges-2 case to my great shock. The question which I have been raising, which no one has answered till date, if Article 141 means reason for the decision, a principle as a precedent, tell me one principle which never ever existed in common law which the Supreme Court has evolved for the first time. Nobody has been able to cite any principle except the basic structure and PIL, both has no foundation for jurisprudence. The British had codified common law principles into statutes, a mammoth task which they undertook soon after they took over the governance of India in 1858. There is no need for us to unduly cite large number of decisions in the course of the hearing and for the judges to refer them in their judgements because it is absolutely counter productive and meaningless. That will make the judgements break and the decisions less perverse and intelligible to the litigants. It will certainly mean a great disadvantage to the lawyers who make huge amounts of money and cause enormous waste of judicial time.

To part with, the solution I suggest is completely dispense with the practice of needless citations and long judgements. There are judges and lawyers who believe that they become immortal by using difficult and uncommon words by extensively relying on dictionaries and books on synonyms and idioms and phrases. We must consciously propagate that the best legal literature is the simplest one and our real model are the likes of Lord Dennis, Benjamin Curdazo , Vivian Bose,  K.K. Mathew and not those who use flowerly and bombastic languages.

 The recent judgement of Supreme Court in Pattaswami( right to privacy) is a classic example of how a subject which Justice Chettor Shankaran Nair in Madhavi  vs  Tilakan  has dealt with in 4 pages being made incomprehensible one  by a Constitution Bench of the Supreme Court by  a judgment running into hundreds of pages.