Hurra Vs. Hurra, a judgment in ignorance of elementary jurisprudence

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Judgments are of two types. The first category is where a judgment, whether right or wrong, is final, authoritative and binding. The second category is where the judgment is not authoritative, binding and final, even where it is right. The first category of judgements which are final and binding even where it is erroneous can be corrected only if the statute has prescribed for a mechanism of correction by way of a revision or appeal. The second category of judgements which are not final or authoritative even where it is correct can be questioned by direct proceedings, namely, by way of an appeal or revision where the statute so provides and/or collaterally by way of a suit or a writ. By way of a writ only where the order is of an inferior court or tribunal.

These are fundamental principles applicable not only in common law countries but even where civil law is in application. The concept that an erroneous decision of a court of competent jurisdiction, rendered in observance of the principles of natural justice and in conformity with express statutory provisions or well settled legal principles is sometimes fraught with unthinkable consequences. There have been many instances where a court of competent jurisdiction, after conducting a trial in accordance with law convicted innocent men as guilty of murder and awarded death penalty and their innocence being established after the convicts having been executed.

The common people approach a court in the unstinted faith that truth will prevail and that justice will be rendered. As someone who has been in the profession for almost four decades, I don’t think there can be a greater myth. Our temples of justice often fail to do justice, nay, puts it’s imprimatur on injustice. Quite recently one of the judges of the Supreme Court observed that if there were a court above the Supreme Court, 50 percent of all judgments would have been reversed. The undeniable truth is that even after the final judgement of the Supreme Court justice is denied and the clarion call for justice remains.

The Supreme Court in Hurra v. Hurra undertook an exercise to undo the injustice which calls for correction even after the review of its final decision has been dismissed. Hurra v. Hurra amounts to a curious reading. The initial part of the judgement deals with argument advanced by eminent lawyers for the need to provide for a mechanism of correction of injustice which remains to be redressed even after a review petition under Article 137 of the Constitution having been disposed of, often dismissed. None of the eminent lawyers, I am afraid to say, addressed themselves to the undeniable universal principle that if injustice remains to be redressed even after a review petition has been disposed of, if such injustice emanates from a judgement which constitutes estoppel res judicata, there is no means by which a court of law could correct it. The reason is simple. The concept of rule of law is founded on the principle of res judicata. The doctrine of res judicata means that judicial decisions, howsoever erroneous it could be, is binding between the parties, provided that the Court has jurisdiction, it observed the principles of natural justice, acted in accordance with law, it arrived at a decision on the merits of the case or where it has not adjudicated on facts, it could be deemed to have been constructively done so.

The Supreme Court was not told that what it was called upon to do, namely to render justice where injustice arises out of a judgement which is res judicata, is incapable of being done so long as we follow common law jurisprudence.

Halfway through the judgment, the Court loses track of its flawed quest to do justice where a judgment has attained finality (res judicata) and which has resulted in grave injustice. This was because Rajeev Dhavan -going by the judgment- imported the need to revisit precedents which are not in tune with the current times. He forgot the fact that there is no estoppel against law. The one difference between res judicata and precedent is that while the core of res judicata is finality even where the judgment leads to injustice, the very core of the concept of precedent (stare decisis) is the reason. What a precedent is, is not the judgement but the reason for the decision (ratio decisis).

Slightly deviating from the core issue, its worth mentioning that all throughout the history of common law, which has its foundations in canon law/roman law, was reason and reason alone. It was the decision of the legendary Lord Halsbury in the London Tramways case which resulted in the disastrous deviation from the concept that precedent only means the reason for the decision, that it has only persuasive value, that there is no estoppel against law. Lord Halsbury in London Tramways case held that the House of Lords is bound by its own decison and that only the Parliament can change it. The London Tramways case compleletely changed the common law jurisprudence. And judgments of the House of Lords came to be treated like legislation which finds its reflection in Section 212 of the Government of India Act and Article 141 of the Constitution of India. Halsbury decision had only a limited impact in the United States where the pristine principles of stare decisis continued to be followed. In England, it took almost 7 decades to correct Halsbury’s assertion in the form of a practice statement of 1966 which unsettled what Lord Halsbury erroneously said in London Tramways case.

Coming back to Hurra v. Hurra, the Supreme Court which confused the two concepts of injustice arising out of judicial decisions which are res judicata qua which are stare decisis, finally came up with a solution to injustices which remained to be redressed even after review petitions under Article 137 were disposed of. It held that it could entertain, under its inherent powers out of its obligation to do justice (ex debito justitiea) petitions even after a review petition is rejected. Thus came into existence the so-called new jurisprudence of curative petitions. A curative petition will lie if there is a manifest error on the face of the record, namely, if the court had not observed the principles of natural justice, the judgement was rendered behind the backs of the persons adversely affected, the judgment is vitiated because of some conflict of interest or bias on the part of the judge or judges who have heard the case, in other words, they were a coram non judice, having no jurisdiction.

The Court further held that such a petition shall lie only upon a certification by a Senior Advocate and that such petition shall be first circulated to a bench consisting of the three senior most judges as also the judges who had passed the order, if available, and that where a majority of the bench so constituted arrives at a conclusion that it needs to be heard in the open court, then it shall be listed for hearing. Hurra v. Hurra was celebrated as a landmark judgment of the Supreme Court, a manifestation of the court’s commitment to do justice, for justice is above all.

However, I consider Hurra v. Hurra to be a calamity. It was nothing but mountains giving birth to a mouse. Hurra did not discover any new jurisprudence. It did not discover or provide any new remedies unknown to law. On the contrary, it put to jeopardy the well known remedies and mechanism for the enforcement of rights where grave injustice arise out of judgements, even of the Supreme Court which are vitiated by errors apparent on the face of record.

As I said at the outset, if a judgement of the Supreme Court, even of a full court, if rendered without jurisdiction, without the persons affected on the party array, without hearing them, nay, without observing the principles of natural justice, without following the express statutory provisions, or where the judges are disqualified, etc. there exists no judgement in the eyes of law, such judgements being rendered void ab initio, still born, non est.

The doctrine of nullity is a universal principle and has been reaffirmed by the Supreme Court in a large number of judgements and, in particular, in Kiran Singh, Antulay, etc. The validity of a judgement without jurisdiction, rendered in violation of the principles of natural justice, against express statutory provisions, can be challenged whenever and wherever it is sought to be enforced, in direct as well as collateral proceedings. The reason being that such judgements constitute no res judicata, it has no finality or authoritativeness.

Hurra is a continuation of a long line of judgements where the elite class of lawyers have taken the justice delivery system for a ride, nay, even hijacked the constitution. Hurra v. Hurra confers a special privilege on senior advocates and senior advocates belong to a few scores of dynasties of lawyers and judges. In some families, everyone is a senior advocate, whether owing to merit or not is open for everyone to see . For considerations of reticence I refrain from taking names.

Hurra elaborately discusses Antulay’s case. The ratio thereof is that a judgement of a court where it is in violation of the principles of natural justice and express statutory provisions, or without jurisdiction, is one rendered void ab initio, still born, one which never ever existed in the eyes of law, and it is the duty of the Court to undo the injustice arising out of such judgements, ex debito justitiea, out of the obligation to do justice. The ratio in Antulay is that procedure is only a hand maiden of justice, that justice is above all, and that a judgment which is null and void can be sought to be corrected in direct as well as collateral proceedings, namely, by way of an appeal, review or revision where the statute so provides, or by a suit or by invoking the inherent jurisdiction of a court. In Antulay, the judgment of the 9-judge bench in Naresh Mirajkar was considered. A writ of certiorari may not lie against superior Courts, but the jurisdiction under Articles 32 and 226 is no longer confined to the grant of prerogative writs. We live in an era where, under Articles 32 and 226, Acts of Parliament and statutory instruments are quashed and set aside. The Supreme Court in NJAC case even “quashed and set aside” the Constitution (99th Amendment) Act, treating the Parliament as an inferior tribunal. The power to grant declaration that an Act of Parliament is unconstitutional, in practice, is no longer exercised by the Civil courts. It is all done under Articles 226 and 32. If I were to say that the Supreme Court has no such power, that would be taken as blasphemy, today. If the Supreme Court has the power to declare a constitutional amendment as unconstitutional under Article 32, then the court has every jurisdiction to entertain a petition under Article 32 and hold that a judgment of the Supreme Court which has “attained finality”, the review petition under Article 137 being dismissed is null and void. To hold otherwise would mean that the SC under Article 32 has no power to grant a declaration of nullity which a civil court is competent, nay, duty bound to grant where it’s jurisdiction is invoked on the plea that the judgement of the Supreme Court is null and void, being rendered behind the back of the persons aggrieved, and the like.

It is high time that the Supreme Court recalls Hurra v. Hurra in exercise of its inherent powers. I say so because in the last 10 years all the civil curative petitions(2155) were dismissed and all the criminal curative petitions, except 3 were dismissed. Article 137 which provides for Review too has become redundant in as much as out of the 19710 (Civil) and 6087 (Criminal) Review Petitions only 92 and 48, respectively alone were admitted.

In Hurra the court’s attempt was to render justice where it’s judgement which has reached finality( res judicata) has resulted in grave injustice. The court could, as anyone reasonably sound in jurisprudence would have anticipated, find no solution.

On the contrary, Hurra only made things worse for victims of injustice by making it mandatory for them to pay a senior advocate through their nose for his certificate and that too for the rejection of his plea, which is a fait accompli, as the statistics aforesaid would prove. Hurra does not advance the cause of justice, but only those self serving senior advocates at whose instance the supreme court institutionalised the Curative Jurisprudence . I salute them for their ingenuity!!
31.12.2022

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