Our Interpretation of Constitutional Law has Become a Classic Example of Human Stupidity
Two things are infinite, said Einstein: the universe and human stupidity. Our interpretation of constitutional law has become a classic example of human stupidity. Let me explain.
The common law is our law by virtue of Article 372 of the constitution. It is founded on two simple principles, ‘res judicata’ and ‘stare decisis’, namely, precedent. Res judicata means a decision in a case between A and B will bind and them, but not C and D who were not parties to it, in other words, it will not bind ‘res inter alios’, namely, third parties. The doctrine of ‘stare decisis’ or precedent means that the reason for the decision, namely, ‘ratio decidendi’ enunciated by a superior Court in a previous case between A and B will be applicable in a subsequent case between C and D, namely, third parties.
Suppose, in a case between A and B the majority of a Bench of 5 judges of the Supreme Court, say, by a majority of 4:1, hold that a goat is a dog that will be absolutely binding on A and B who are parties as ‘res judicata’, though it is a manifestly erroneous. Otherwise there will not be an end to litigation, finality. However, that decision will not bind C and D or rest of the world in a subsequent case. The reason is simple. What is binding as a precedent is not the decision but the reason for the decision, the ratio decidendi. Even a Munsiff before whom the above majority decision is cited as a precedent can refuse to follow the majority judgment because to hold that a goat is a dog, is undoubtedly erroneous in the opinion of the Munsiff. The Munsiff here represents the sovereign function of the state. He ought to be as independent and impartial as the full court of the Supreme Court. His only allegiance is to law and it is his duty to decide from the conflicting legal and factual submissions advanced, what is more appealing to him. His decision is final, authoritative and binding on the parties to the ‘lis’, no matter right or wrong. Supposing that instead of a single person, the Munsiff were a multi-member forum, and the members of the bench differed in their opinion, what would be res judicata is the decision of the majority. To repeat, so far as ‘res judicata’ is concerned what matters is the majority view. A judgment is binding as a res judicata even if it is absolutely erroneous.
On the contrary, so far as precedent is concerned, the majority view is irrelevant. What matters is the correctness of the reason for the decision, namely, ratio decidendi enunciated by the court for the resolution of the issue before it where none existed, and not the numbers. When the principle or ratio decidendi so evolved by a superior court, when followed repeatedly and repeatedly by itself/subordinate courts, the said principle is said to be ‘well-settled’ in law. These are all fundamental principles against which there is absolutely no room for a counter argument. However, unfortunately, the doctrine of precedent is practiced in a diametrically opposite manner in our country. To repeat, the concept of majority in a bench which has multiple members, a doctrine applicable to res judicata has inadvertently been extended to the doctrine of precedent, forgetting that so far as precedent is concerned the number is irrelevant and what is relevant is the acceptability of otherwise of a principle, if any, evolved.
One might wonder why our great lawyers and judges happened to confuse the concept of res judicata with that of the doctrine of precedent and have reduced our constitutional law to a product of ‘infinite human stupidity’. The reason is simple, in the 70 years of India’s constitutional law, our Supreme Court has not evolved a single principle which never ever existed for the resolution of an issue which was before it, where none existed. I don’t mean in the least to blame our illustrious lawyers and judges for that. There is no need to do so because we have inherited a rich legal system from the British, namely, the common law which has its foundations is classical Roman law. whenever we are in doubt, we need only refer to the Latin maxims. The basic structure doctrine of the Kesavananda Bharati case, one may say, is a principle which the Supreme Court has evolved for the first time. I am afraid to say that the basic structure theory is against the first principles of jurisprudence, ‘ubi jus ibi remedium’ which means ‘where there is a right there is a remedy’, namely, ‘a right, remedy, forum’. Kesavananda Bharati, on the contrary, allows one to invoke even Article 32 without alleging violation of any right, much less the violation of a fundamental right, but by pleading violation of the “basic structure”. Imagine the calamity. The 99th Constitution (Amendment) Act, 2014 was struck down, it being violative of the basic structure, the “principle” evolved in Kesavananda Bharati.
All judgments except concerning ‘status’ of the parties and that of the criminal courts are judgments ‘in personam’ and not “in rem”, namely, as against the whole world. Because, to hold otherwise would mean the violation of the very first principles of natural justice. A judgment in a case for divorce between husband and wife is “in rem” if the divorce is granted and “in personam” if it is rejected.
These are undeniable first principles of jurisprudence. However, the Indian constitutional law since Kesavananda Bharati has been contrary to these fundamental principles. Kesavananda Bharati said that the independence of the judiciary is a basic structure. The Judges-2 case held that the ‘core’ of the independence of the judiciary is not in the discharge of the duty as a judge post appointment independently, but is in the very appointment itself. And therefore, that the words “consultation” employed in the Constitution would mean not merely consultation, but would mean the “primacy” of the opinions of the CJI, and not even his concurrence. It was further held that the “primacy ” is not that of the CJI in his personal capacity, but that of the plurality of the opinion of the judges reflected through a “Collegium” of judges. The Collegium thus was created by rewriting the constitution. The judgment in the Judges-2 case is one rendered ‘void ab initio’. It is rendered ‘per in curiam’ as well.
Instead of seeking review of the Judges-2 case being rendered void ab initio, the Government got the constitution amended to overcome the judgment which was calamitous. Sadly, the constitutional amendment was struck down holding that the “ratio” of the Judges-2 case is an integral part of the “basic structure” of the constitution and cannot be amended in view of the judgment in Kesavananda Bharati.
The Kesavananda Bharati, Judges-2 and the NJAC case are, all, rendered void ab initio being vitiated by errors apparent on the face of the record. It is rendered ‘per in curiam’ as well. The views of the minority judges in Kesavananda, Judges-2 case and the NJAC case are the correct views which alone will be binding on the future judges if the concept of precedent is understood as to follow the rationale for the decision, in other words, follow the ratio decidendi. Precedent is a very useful concept. There can be no dispute about it. It is one of the four sources of common law. The problem we face in India today, is that precedents are taken as statute and a previous judgment is treated by judges as res judicata, binding even those who were not parties to the case. Even when a bench ventures to disagree with the views of a coordinate bench of equal strength, such deviation is frowned upon as judicial indiscipline with the result that even where the majority, as aforesaid, has erroneously held that a goat is a dog, and the minority had disagreed to it, the future judge is made to follow the majority, lest he should be accused of gross judicial indiscipline, and in the case of a subordinate judge, even accused of committing contempt of court. A bench of the Supreme court can refer the case to a larger bench when it is certain to them that a goat is not a dog, but a poor Munsiff or even a High Court judge has now no choice but to apply the ratio of the majority that a goat is a dog, for he has no choice of referring to a larger bench. As far as the litigant is concerned, the judgment in a case between A and B, where he was not a party, is binding on him as res judicata.
Our entire constitutional law is built on the said misconceptions, and the resultant injustice and chaos can be seen everywhere. We have no choice but to dismantle our current constitutional law built on sand and rebuilt it on sound principles.
- September 29, 2023
- September 29, 2023