Supreme Court of India or the Court of Henry ll?

12.5.2021

Supreme Court of India or the Court of Henry ll?

Many of us may not know our connection with the Roman law. Julius Caesar invaded Britain in 55 BC and England was under the Roman rule from AD 43 to AD 410. The Romans made many highways, some of which are in existence even today. I make a mention of highways because it has a connection with our criminal jurisprudence. In the early medieval days, all crimes were not considered as an offence against the king and his peace. Offences like treason, disseisin (seizing of land belonging to another) which affected the King’s interest alone were considered as an offence against the state. Other crimes were regarded as mere tort, matters falling in the domain of the Baron’s Court, Manorial Court, etc. Kings used to sell jurisdiction, which led to rapine and unjust judgements at the hands of private tribunals dispensing justice. This, among other reasons, led to the Barons revolting against the King and compelling him to issue the Magna Carta, the great charter, where the King undertook “Nulla vendemus, nulla negabimus aut differemus, rectum aut justitiam” – to no man will we sell, or deny, or delay, right or justice.

A crime committed on the four highways built by the Romans was considered as a felony, triable by the King’s Court, because it affected the King’s interest.

The Romans were ousted by Saxons (Germans) and they ruled over England till the Norman conquest of 1066 AD which period is known as the Dark Ages. The conquerors, led by the Normandy Duke who came from France, faced a lot of opposition and were weak. They could not have ruled without the support of the clergy, the most powerful institution, and the Lords, Dukes, Earls and the Barons. The court of the Norman Kings were the courts of first instances for all men and all causes. Though during the Dark Ages, during the Anglo-Saxon times, in place of the classical Roman law, inquisition, ordeal and other methods of administration of justice were introduced, the Roman was not completely dead. An ecclesiast (bishop) was the Prime Minister and the Chief justitiar( judge). The King’s council (court) continued to be the Supreme legislative, administrative and judicial body during the subsequent regimes as well. King Henry 11 was succeeded by King John, Henry 111 and then Edward l. Edward l has been called the ‘English justitian’ for the judicial reforms he brought in. The great Bracton, known for his Treaties on the Laws of England, was a judge for 20years during Henry 111’s time.

Thanks to Bracton, the Roman law principles, once again, came to be the guiding principles of justice administration.The most important principle is “nemo potest esse simul actor et judex”- no one can be at once suitor and judge. What am I talking about is the 12th and 13th centuries, where the King and the few ecclesiasts and nobles whom the King nominates at his option, exercise all judicial, legislative and administrative powers. It took another 7 centuries to reach our pre-independance era, where the concept of separation of powers came to be universally accepted, and to incorporated Article 50 of the Constitution which mandates that there shall be separation of powers.

The development of law has not been seamless. In the 16th century, the House of Commons asserted to itself the judicial power to adjudicate private disputes. We also find a diametrically opposite proposition at the hands of Cheif Justice Edward Coke, in Dr. Bonham’s case, 1610. He said “Iniquum est aliquem rei sui esse judicem”- that if the Parliament were to make a law where one of the parties to it is made judge thereof, such a law is void.

In short, even during the times of monarchy, even in medieval times, the concept that nobody can be an ‘actor’ and a judge both at once, was considered to be sacrosanct.

In law schools it is taught as the first principles, namely, “nemo debet esse judex in propria causa”. However, today we are perplexed to come across “breaking news” on TV and headlines that the Supreme Court and the High Courts have invoked suo motu action. And the latest in the long line of such action since the dawn of the so-called PIL jurisdiction, is the Supreme Court’s suo motu W.P. no.3/2021, In re: Distribution of Essential supplies and services during pandemic, manifestly with good intentions. I do not wish to be critical. But a suo motu PIL in the matter of “In Re : Matter Of Great Public Importance Touching Upon The Independence Of Judiciary”, where then CJI headed a bench to hear a case where he himself is the accused, is difficult to be erased from one’s mind.

The point I wish to drive home is that 70 years after independence, in the name of doing good, now in name of distribution of essential supplies (which nobody can really find fault with) and sometimes in the name of “protecting the independence of judiciary” to protect Justice Gogoi from the allegations, which has caused irreparable damage, we are going back to the early Middle Ages when the Normandy Kings, the weak French invaders by constituting a court/council consisting of the Bishops, Earls,Lords, Barons, sought to rule the empire. The ordinary people then had no role, whatsoever, in the governance of the realm. Their worth was based on their ecclesiastical status, land holding, the armed men they could provide in times of war, etc. In the “modern King’s Court” which the Supreme Court of India is today, the Lord Chancellor, the treasurer of the exchequer are the amicus curie, the senior lawyers, who hail from the legal and judicial dynasties.

The PIL was (40 years before)not what it is today. It was ‘pro bono litigation’ for the enforcement of the rights of a person(s) aggreived- an undertrial, a slum dweller, a disabled, and the like. Pro bono litigation which received great amount of appreciation, even internationally, did not last even for a decade. Naturally, with thousands of poor people sending thousands of letters and postcards to the courts, the courts found that the floodgates had opened and nothing could be done. The “new jurisprudence” of postcard writ petition came to an end. ‘Pro bono litigation’ which was legal and constitutional, namely, in consonace with the concept of “right, remedy, forum”. In its place, a new industry of PIL grew at an exponential rate. They turned the Supreme Court (like in the days of the Normandy Kings of the 12th and 13th century) into a ‘court of first instance for all men (though not really all men, only the rich and the powerful) and all causes’. It has made the Parliament irrelevant in comparison. They distorted the concept of judicial review to absurd levels and conferred the ultimate say, even in matters of policy and governance. They, the PILwallas, do these absurdities in the name of the “basic structure”. They come to the court complaining, not of the violation of their fundamental rights, but of the “basic structure”. They assert the right to represent the public at large, and the Courts have failed to insist upon the bare minimal requirements that a class action litigation should demand. They have reduced the Supreme Court into their private domain, where they alone have a right to be heard, because of the commanding position they enjoy in society as parliamentarians cum senior lawyers, activists enjoying a great clout, etc. Some simple souls too approach the court invoking PIL, and to their shock they get rebuked and fined.