Ten myths of Indian Constitutional Law


-Mathews J. Nedumpara


In the NLC’s (National Lawyer’s Campaign for Judicial Transparency and Reforms) agenda, open selection of judges of High Courts and the Supreme Court by notification of vacancies and invitation and application of all eligibles, so too, references from all stake holders, finds the very first place. The reason is, simple, obvious; because the higher judiciary in India, today, is perceived to be a dynasty, not very different from that of the political parties, a phenomenon which is antithetical to the very concept of a constitutional democracy which guarantees not merely equality before law and equal protection of laws but equal opportunities in public employment, so too, of constitutional offices.
Prior to independence, the high judicial offices of the chartered high courts and the federal courts were occupied by judges who were members of Indian civil service consisting substantially of the British. There was nothing like judicial dynasties, then. However, after the independence, slowly, a few families happened to dominate the Indian judiciary, the Bar and the Bench. Soon, things took a sea change after the judges 2 case, a judgment by which collegium system of appointment of judges came into vogue. Our constitution is one of the finest constitutions of the world. The Part III of the constitution embodies the principles contained in Magna Carta and Bill of Rights, so too, the 5th and 14th amendment to the American Constitution. The concept of federation and unified state find an excellent blend, taking with it the advantages of the both, but shunning the disadvantages. The Concept of Separation of Powers as envisaged by Montesquieu too finds its beautiful blend, sans its inflexibility. Our constitution, while reaffirming the concept of the supremacy of the parliament, without undermining the same in any manner, also provided for judicial review. Article 13 (2) of the Constitution declares that any law which is violative of the fundamental rights are void. The constitution, however, did not expressly provide the forum which a citizen aggrieved by violation of his fundamental rights by an act of parliament or executive action could seek his remedies. Article 372 of the constitution in express terms provided that the civil court is invested of the jurisdiction to do so. The founding fathers however felt that in addition to the ordinary laws and the forum of civil court, the High Courts and Supreme Court be invested of the jurisdiction to grant certain remedies in the nature of writs where the fundamental or legal rights of the citizen are infringed by the executive or the legislative action; namely, Arts 226 and 32 of the Constitution respectively. Having said and done that, the fate of our Constitution, today, rests on certain myths, seven of which are enumerated as under:
The First Myth: The Basic Structure Theory
i. The jurisdiction of the High Courts and the Supreme Court under Arts. 226 and 32 came to be invoked increasingly as certain welfare legislations which the government of India introduced, were challenged on the ground that they are violative of the fundamental rights or beyond the legislative competence of the legislature. This has led to certain seeming conflicts between the executive and the Judiciary, with the former amending the constitution to nullify the judicial pronouncements. The public opinion too was divided; while the elite class of lawyers and rich businessmen, the capitalist supported the assertion of the judiciary of their right to interpret the constitution as their exclusive domain, the common man and the poor unstintedly supported the legislations. In the ongoing tussle, the judiciary ultimately established its supremacy in Keshavananda Bharati’s case by holding that it has the power to declare even a constitutional amendment as unconstitutional. In Keshavananda Bharathi the doctrine of Basic structure, which has no foundation in jurisprudence and in constitutional law, came to be pronounced. The said judgment ran into half a million words. Very few could have even read it. A judgment which is incapable to be read and thus incomprehensible contains no exposition of any new principle where none existed, to resolve a controversy which the court had before it. The question before the full court in Keshavanda Bharathi was whether the constitution 25th amendment Act which had provided that a constitutional amendment shall not be declared to be void on the ground that it violated the fundamental rights. The question therefore was whether the parliament by an amendment to the Constitution could take away the fundamental rights. The answer, the common man could have wished to hear from the court was that it shall not. However the full court said the parliament has the power to amend every article of the Constitution including that of the fundamental rights. The judgment was certainly, by all means, with utmost respect, a retrograde one. However, it was hailed to be a historic one, the magna carta. Thousands of tons of newsprint was since used hailing it, as, the ‘fundamental rights case’. The said judgment was hailed because the full court held that though the parliament could abrogate fundamental rights, the basic structure of the constitution cannot be breached. The judgment in the Keshavananda Bharati’s case and the so called basic structure, the author considers to be the beginning of the destruction of the Constitution of India. The proposition that the Keshavanda Bharati’s judgment had no foundation in jurisprudence, and that it was absolutely flawed logic, is the very foundation on which the constitutional democracy can exist.
ii. De fide et officio judicis non recipitor questio sed de scientia sive sit error juris sive facti, namely while the integrity of a judge cannot be questioned, his knowledge and his decision, both on facts and law can be questioned, is a fundamental principle of law. The citizenss are within their rights to criticize the judgment rendered in Keshavananda Bharati. However, the said judgment is considered so sacrosanct, that any critic thereof is likely to be considered a blasphemer. However, since the damage that this judgment has caused to the constitutional law of this country is so irreparable that the author consider that it is his duty to state what he consider to be true, candidly.
iii. “Law is reason, the very life of it”, said Chief Justice Coke. Ubi jus ubi remedium, where there is a right, there is a remedy. The fundamental principle is, right, remedy, forum. Under Article 32, if a fundamental right is violated, a citizen could invoke the jurisdiction of the Supreme Court. If not, he has no right. Till Keshavanada Bharati, nobody would have dared to invoke Article 32 unless he had a grievance that his fundamental right was violated. Keshavananda Bharati held that Parliament can by law take away one’s fundamental rights and he cannot have any grievance about that. However, if such a law had violated the ‘basic structure’ of the constitution, he could invoke Art 32. That meant nothing insignificant. It was nothing like a new theory of geometry where two parallel lines could meet. Petitions under Art 32 complaining violation of fundamental rights came to an end. Instead, petitions under Article 32 came to be instituted alleging violation of the basic structure of the constitution. The term basic structure was not defined. It may be incapable of any definition even. To keep this study brief, it is not elaborated. Suffice to say that one of the early causalities of the doctrine of basic structure, a doctrine unknown to the rest of the world, is the appointment of judges to the higher judiciary. A nine Judge Constitution bench rewrote Article 124 of the constitution and brought into existence the collegium system of appointment and transfer of judges to the higher judiciary on the premise that independence of the judiciary is one of the basic structures of the constitution. The then Attorney General/ those representing the Govt did not raise the plea that PIL by SCAORA is not maintainable because there is no plea that anyone’s fundamental right is violated.
Second Myth: The Supreme Court can lay down the law of the land
The judgment in judges 2 case, to repeat, was no interpretation but meant to be rewriting of the constitution. The nine judge bench could not have at all thought of usurping to itself the power of appointment of judges and to institutionalise the same by introducing the concept of ‘Collegium’ but for the Keshavananda Bharati judgment. The argument that the independence of the judiciary is a basic structure of the constitution and to protect the basic structure, it was permissible to rewrite the constitution. The Union of India invoked Art 143 of the constitution. However, the Presidential reference was not whether the SC could rewrite the constitution in the name of interpretation, nay, whether the Supreme Court could abrogate to itself the power of appointment of judges which is in the exclusive domain of the executive with a mere obligation to consult the CJI, in the case of a judge of the Supreme Court and the Chief Justice of High Courts and the Governor as well in the case of the Judges of the High Court. The Presidential reference was all about the details of the working of the collegium. The Union of India even conceded that they are not seeking a review of the Judges 2 case.
While, the basic structure concept is flawed, one meant the concept of pro bono litigation misnomered a PIL, being used as an instrument to substitute the legislature, so too the executive nay, as if the judiciary is the executive and the legislature both at once. Although, “What is in a name…?”, saith William Shakespeare in his play “Romeo and Juliet”, what kind of calamity a misleading name could cause, PIL is the classic example. The Judges 1 case, is a treatise on the concept of ‘pro bono litigation’, today, a misnomer called PIL. What Justice Bhagwati held in that case was, that any person acting pro bono publico could invoke the jurisdiction of the constitutional court where the person aggrieved, out of his poverty or illiteracy is unable to approach the court. For instance, an undertrial prisoner x, who out of his poverty, illiteracy is unable to enforce his fundamental rights invoking Article 226 or 32, Y, a public spirited person, acting pro bono could approach the court. To enable him so, the concept of locus standi is relaxed. The court did not invent any new jurisprudence, no new legal remedies were discovered. It only relaxed the procedure. Despite the word PIL in the pro bono litigation, it was for the enforcement of a private right of a person aggrieved. In consonance with the fundamental legal principles : right; remedy; forum. Before the evolution of the concept of PIL the remedy of mandamus as a matter of right would lie at the hands of a citizen where the authorities have failed to discharge their statutory duties. The writ of mandamus, even qua warranto were thus considered to be public law remedies. Such remedies fell well within the concept of judicial review. However, the misnomer PIL, had a catastrophic effect. Many even well informed and well meaning lawyers and jurists thought the doctrine of PIL had meant investiture of a jurisdiction in the constitutional court to deal with any issue under the sun concerning the public at large. Many a judgments on PILs held that the Person who institutes the PIL shall not have any private or oblique motive, that he should be acting bonafide. This meant that even a person seeking the remedy of mandamus, quo warranto, which are not equitable remedies which is open to even a man with unclean hands, henceforth be denied of his legal rights. Many PIL “factories” cropped up including PIL “Centres”. Everything under the sun which legitimately belong to the province of the executive and the legislature, including matters of legislative and administrative Policy came to be decided in courts. The Supreme Court of India became the most powerful court on Earth.
i. From the misconception of the basic structure and PIL discussed as above, other misconceptions are of the fundamental principles of res judicata and staire decisis. The failure to distinguish between the two concepts meant yet another catastrophe. The Article 141 of the constitution embodies the doctrine of staire decisis. In simple words, the doctrine of precedents. The doctrine is a very useful one. One of great antiquity and of universal application. In simpler words, it means that if a superior court has evolved a principle to resolve an issue which it was called upon to do so, where none existed, the said principle, nay, the reason for the decision shall be binding on a court which is inferior to it. The justification is that, it is always better to follow the trodden path. The author bows down to the said Principle, which the founding fathers embodied in Articles 141 of the Constitution of India, for, they wanted to present to the posterity, a Constitution which is as complete and perfect in all aspects as possible. However, with utmost respect, the author begs to say that, since the advent of the doctrine of basic structure, which the he, in all humility asserts to be one without any legal or logical foundation, so too, with the misconception of the pro bono litigation, which is found in law as PIL, as is in practice today the judgments of the Supreme Court, became the law of the land without the citizens at large being afforded any opportunity to partake in that law making process.
ii. The meaning of the word res judicata is well known. While the doctrine of stare decisis means, that a decision of a case between A and B will bind a dispute between C and D who are not party to the decision in A and B, if in the decision between A and B, the court had evolved some legal principle for the first time where none existed; whereas, the doctrine of Res judicata could mean that the judgment of a court in a case between A and B will bind them, no matter, whether the judgment is right or wrong. To put it in simple words, a judgment of a case between A and B, where the court has held “black” as “white” and “white” as “black”, though manifestly incorrect, will bind them and they cannot lodge a fresh dispute on that very question, before the same forum as the res is already adjudicated(res judicata). On the contrary, in so far as the doctrine of stare decisis is concerned, the principle of law laid down in a judgment of a superior court, in a case between A and B will bind C and D in a subsequent case between C and D in the subordinate court, as, what has been decided by the superior court is a principle of law. However, it is for the court before which the said judgment of the superior court or peer court is cited as precedent to decide whether the judgment of the superior court or equivalent court is binding or not. If a judgment is rendered curium, it will be binding, if not curium, nay, per incurium it will not be binding. If for instance, the judgment of the Supreme court in Keshavananda Bharathi case is cited before a high court in support of the proposition of basic structure, it is for the High Court before which such plea is made to decide whether Keshavananda Bharati, nay, the principle of basic structure evolved therein constitute to be a binding precedent.
iii. All judges exercise the sovereign power of the people. All judges, no matter, whether of the highest or the lowest, the sovereign judicial powers of “We the People” as trustees thereof. With Article 233 of the constitution investing the power of Superintendence of subordinate judges in the High Courts, the subordinate courts, it is generally perceived, have lost much of their independence. With the collegium of the Supreme Court being the ultimate authority in the matter of transfer and appointment of High Court judges, so too of their peers in the Supreme Court, the undeniable perception is that, the High Courts have lost the independence which the founding fathers have envisaged. If one were to advance an argument in the High Court that a judgment of the Supreme Court, particularly of a constitution Bench as one rendered per incuriam, the Honble judges, will certainly refuse to entertain such an argument. It may even be misconceived as being disrespectful of the Supreme Court.
i. The fifth myth on which the edifice of the Constitutional Law of the country as of today is founded, is that the civil courts have no jurisdiction to declare an Act of Parliament or a statutory instrument as void. The misconception is that, only the High Courts or the Supreme Courts alone could do. The real reason for this misconception is that, the investiture of the power of supervision of the subordinate courts in the High Court, so too, the predominant role in the selection of the district judges, had the effect of members of the subordinate judiciary to nonconsciously, nay, unconsciously perceive that they are subordinate to the High Court judges. It is forgotten that, the judges of the subordinate courts often being too scared to invoke the powers invested in them, as a court of unlimited plenary jurisdiction, has meant the litigant public invoking the extra ordinary jurisdiction of the High Court under Article 226 of the constitution for the grant of declaratory relief, even while the said Article has not expressly invested the jurisdiction in the High Court. Still worse, the fact that, the Article 32 of the constitution has invested very limited original jurisdiction in the Supreme Court to grant the 5 writs, namely, Quo warranto, certiorari, prohibition, habeas corpus and mandamus, was also forgotten. The fact that, the constitution did not in express terms invest any jurisdiction in the Supreme Court to grant a declaratory remedy namely to declare that an Act of Parliament or Statutory instrument as unconstitutional was forgotten, so too, sadly though, the original jurisdiction to grant the declaratory decree was in the exclusive domain of the High Court on its original civil side or on the civil court and no other court, was also forgotten.
ii. The eminence of the civil court as a court of plenary jurisdiction, competent and duty bound to embark upon any controversy under the sun, except those barred by law is evident from Article 372 of the constitution. So too, O.27 A, of the CPC. Therefore, where a declaration that an act of Parliament or a statutory instrument is void is required to be sought, the forum to be invoked is the civil court, and civil court only, sadly though, this may appear to be a weird proposition to many.
iii. The concept of ‘judicial review’ is generally believed to be the invention of Chief Justice Marshall in his land mark judgment in Malberry Vs.Madison. True, Chief Justice Marshall enunciated the principle in unmistakable terms. In that case Chief Justice Marshall only held that administrative decisions are amenable to correction by the Supreme Court. He enunciated nothing new. St. Augustine (AD.300) in his thesis ‘de doctrina’ said: lex injustia non est lex’; an unjust law is not a law at all. Centuries later, St.Thomas Aquinas in Summa Theologica (AD1200) re affirmed the same by saying that a law which is against the law of the nature and law of the God is no law; it need not be obeyed. He, however, gave a caveat, namely, that provided the injury to be suffered by disobedience of the void law is not greater than the injury to be suffered by obedience to the unjust law. The doctrine of the right , nay , duty of of disobedience was thus laid down. A few centuries later, Chief Justice Edward Coke in Dr. Boliham’s case held enequem est aliequam rue sui est judiciam , namely, that if the Parliament were to make a law by which one of the parties to a dispute is a judge thereof, such a law is void. The assertion of Chief Justice Coke that the court of Common law could hold an Act of Parliament void, however, did not receive much acceptance and since then, no judge in England ever dared to assert so. There is valid reason for that. In England the House of Lords which is the Supreme Judicial Tribunal is itself the upper House of the Parliament. The practice since then is not to strike down an Act of Parliament as ‘void’, but in a lis between the subject and the state to declare an Act of parliament to be void in so far as it violates the natural law, in so far as the subject is concerned, it is for the Parliament to take notice of the judicial declaration and to bring in necessary amendments to the law. In England, to challenge the wisdom of the Parliament and King, constitutes to be inconceivable and there is no concept of judicial Review, an unruly horse, as we understand in India. However, all the 5 writs as enunciated in Article 226 and 32 are available in English; nay, we inherited it all from them alone.
iv. It was necessary to briefly narrate as above the history of English law in the realm of “judicial review” , in view of the general misconception that civil courts have no power to interpret the constitution or declare an Act of Parliament or statutory instrument void.
v. While Article 226 and 32 expressly provide for judicial review by providing for five writs(Remedies) there is no express provision in the constitution which empower the High Courts or the Supreme Court to declare an Act of Parliament or statutory instrument to be void other than Article 13(2) of the Constitution. The question therefore is, which court is competent to declare an Act of Parliament or statutory instrument to be void and unconstitutional. The answer to this question could be found in The Code of Civil Procedure,1908. Section 9 invests the jurisdiction in the civil court to try all suits of a civil nature unless barred expressly or by implication. However, by Act No.23 of 1942 under section 27A titled, “suits involving a substantial question of law as to the interpretation of the constitution or as to the validity of any statutory instrument” was incorporated in the Code of Civil Procedure,1908. The said amendment made it mandatory that no suit involving a substantial question of law as to the interpretation of Govt. of India Act shall be determined without notice to the Attorney General; so too that no suit concerning the validity of the statutory instrument can be decided without notice to the Govt. Pleader as the question concerns the government. In 1950, the words ‘Government of India Act’ were substituted by the words ‘Constitution of India’.
vi. Thus, two things were manifest from above, namely:
(i) The civil courts can interpret and determine a substantial question of law, as to the interpretation of the constitution of India;
(ii) Declare a statutory instrument void or unconstitutional
The question then is:
A. Whether the civil courts could determine the constitutional validity of an Act of Parliament? The answer could only be in the affirmative. Because the power to determine ‘substantial question of law as to the interpretation of the constitution’ will undoubtedly take within it’s ambit to declare an Act of Parliament as void, if it be so.
B. In all the chartered High Courts, the High Courts were invested civil original jurisdiction above a certain pecuniary limits. Today except the chartered High Courts, no High Court enjoy original civil jurisdiction ; so too was the case at the time of the commencement of the constitution with the coming into force of the constitution by virtue of Articles 12, 13(2), and 372, thereof it became indispensible that a junior civil judge could determine a “substantial question of law as to the interpretation of the Constitution” so too invalidate an Act of Parliament, inter partes, the decision of the subordinate court having no precedential value. The Parliament felt it to be not so ideal a situation. Accordingly by Act No.24 of 1951 a proviso was added to section 113 of The Code of Civil Procedure,1908 to the effect “if in a case pending before it involves a question as to the validity of any Act, ordinance or regulations or of any provision contained in the Act, ordinance.. the determination of which is necessary for the disposal of the case, the court shall refer the same for the opinion of the High Court.”
vii. From the above it is crystal clear that the current practice of challenging the constitutional validity of an Act of Parliament or statutory instrument by instituting a writ petition in the High Courts or the Supreme Court of India is contrary to the Constitutional scheme and that the writ jurisdiction could be invoked in exceptional circumstances, for the enforcement of the remedies (5 kinds of writs) expressly stated in the Articles 226/32. It is not a matter of great practical import; not merely academic. The reason is simple. The departure from the constitutional scheme as above has led to the exponential growth of writ jurisdiction; so too the face law. In subordinate courts, there is nothing like face value/law. Cases are determined on it’s merits, after issues are framed; evidence is allowed to be led for and against. The judge hardly exercises any discretion. He decides according to the evidence on record and law, in stark contrast to the practices in the High Courts. In the High Courts, under Article 226, no issues are framed; cases are decided summarily often at the admission stage itself. Judges openly say that the jurisdiction is discretionary. This dubious jurisdiction ( Article 226 & 32) has done great damage to the credibility of the justice delivery system as an impartial and objective mechanism, by forming an undeniable perception among the common man that he can get justice only if he could afford an expensive lawyer, preferably from the judicial dynasties.
viii. The solution to India’s seemingly unresolvable crisis in the dispensation of justice is to restore the pristine glory of the civil courts; recruit the best legal brain at the young age; train them; provide them the best pay and perks; so too the infrastructure; abolish if possible all tribunals; strengthen and stream line the subordinate judiciary/civil court. There in no other means than this to rebuild a robust justice delivery system.
i. The sixth myth: the judgment in Judges-2 case was founded on the concept of the supposed power of judicial review invested in the Supreme Court, which knows no limitation. The constitution is what the judges say it to be. In judges-2 case the Supreme Court asserted its primacy nay supremacy in deciding appointment or transfer of judges, even when such assertion meant contrary to what the text of the constitution meant. The Justification offered was that the judicial review was one of the basic structures of the constitution. The author has no qualms about the power of Judicial Review within the limitations universally recognized. Nowhere in the world, power of Judicial Review is understood to be as investing the court to act contrary to the constitution. The power is to undo actions which are against the Constitution. Constitution is supreme, the legislature, executive and judiciary, all are bound to act within the constitution. Art. 13(2) of the constitution of India expressly says so; the provision is crystal clear. All actions of the state which are ultra vires the constitution are void. The word “State” takes within its ambit the Parliament, the Executive and the Judiciary. However the myth which is the result of judgments running to hundreds of pages is that, the judiciary does not fall within its ambit. The Judges-2 case by which the collegiums system of appointment and transfer of judges was introduced by judicial legislation even carries the proposition that the decisions of the collegiums are not amenable to judicial review. The collegium conducts its affairs in the most secretive manner. Applications under the RTI Act seeking information as to its proceedings are declined. The scenario is most disquieting. All that the world today knows about the decision of the collegiums allegedly transferring Justice Patel from Karnataka High Court to Allahabad High Court, to deny him the opportunity to be elevated as the acting CJ/CJ of the Karnataka High Court are the media reports, so too, the windmill of rumours and whispers which fill the corridors of the court. Many disquieting things are heard which due to considerations of reticence the aurthor refrain from dwelling into the same. The legal fraternity is aghast for they think that there is no room for judicial review in the province of the collegium, even while appointment and transfer of judges which the collegiums undertakes to the exclusion of the rest of the world is purely an administrative function. This misconcept which has made the collegiums an imperio in imperium is the direct result of the yet another calamitous myth that the judiciary is not a State within the meaning of Article 12.
i. The seventh myth is the direct fallout of the myth number six above, namely that a judicial decision cannot be collaterally challenged. The perception today, though manifestly contrary to the first principles of jurisprudence, namely “resjudicata estoppels” is that judicial decisions of the superior court cannot be challenged in a collateral proceedings. Many erroneously believe that where a judgment of a superior court is void ab initio, either because the parties affected were not heard, as is the case with PILs or without jurisdiction, the only procedure open to the party aggrieved is to challenge the same in “direct proceedings” by way of an appeal or review. The author has come across often even such reviews at the hands of such affected parties who are not heard, are dismissed on the ground that they were not parties to the original proceedings. The Doctrine of estoppel, nay, res judicata and the doctrines of res inter alios and nullity are the very foundations on which the legal system is built; the classical Roman lawyers realized that except God none could deliver justice, and all manmade systems are certain to commit injustice. The reason is simple, the limitations of human faculty. No judge can ascertain facts correctly, objectively, so too, exercise his discretion, with absolute perfection. There is only one exception, where the facts are as undeniable and manifest as day and night or as simple as arithmetics, nay one plus one is two. In other words, to put figuratively, the “justice-bridge” is built on two pillars, both made of sand; the pillars being, as aforesaid:
(a) that a judge can ascertain the facts correctly, which, no judge could, to repeat, unless it is as simple as “day or night” or as “one plus one is two”, to resolve such a controversy nobody would ever go to a court;
(b) that a judge would exercise his discretion, justly and fairly, which could be expected from no mortals with blood and marrow, for, almighty alone could be a perfect judge.
ii. However, the classical Roman lawyers felt that, judicial decisions ought to be treated as sacrosanct, absolute truth, even when it could be so horribly wrong like in a case where the innocent was found guilty of murder and is convicted to the gallows. They felt, to do so, was, in the interest of the Public, and thus the maxim interesto Reipublicae Ut Sit Finis Litium meaning, in the interest of society as a whole, litigation must come to an end. They also felt, it equally concerns private interest that no man shall be vexed for the same cause more than once, nemo debet bis vexari pro una et eadem causa. Thus came the concept, Res judicata pro veritate accipitur, in brief, res judicata. The concept of res judicata is also by another maxim namely, the maxim Fiat justitia ruat cælum, which, contrary to the popular perception that justice be done even if heavens should fall, meant that a judicial decision however erroneous it could be, if it is rendered by a court of competent jurisdiction, acting within its jurisdiction, in full observance of the principles of natural justice, and in conformity with the express statutory provisions is final and binding, no matter howsoever erroneous it could be. If a court of competent jurisdiction, acting within its jurisdiction, in full observance of the principles of natural justice, and in conformity with the express statutory provisions holds in a case between A and B, that 1 plus 1 is Zero, that is final and binding between the parties and constitute res judicata, it will not bind C and D, the maxim being res inter alios, namely that, a judgment will not bind none other than the parties to it. It also constitutes no precedent because it is manifestly erroneous. To suppose that the court had held as aforesaid that 1 plus 1 is zero, in a case between A and B, without hearing B, then that judgment is a nullity. Not because the court had held 1 plus 1 is zero, for, the court is free to err, for, the word “jurisdiction” means the power to bind parties even by erroneous decisions. Such a decision could be challenged in three ways:
a. By means of a direct proceedings, namely by way of an appeal, provided, the statute provides so;
b. By way of a review, even where the statute had not expressly provided so, for, power of review is undoubtedly inherent to any court of record, so too, of inferior courts or tribunals, though the general perception is otherwise. Because the maxim, quando lex aliquid alicui concedit, Omnia incidentia tacite conceduntur when the law gives anything to anyone, it gives tacitly all that is incident to it;
c. By way of a suit, namely, original/collateral proceedings; though even to many a seasoned lawyers, legal luminaries, the proposition that even an order of supreme court could be sought to declared to be null and void, being, vitiated by errors apparent on the face of record may appear to be blasphemous. But, the Supreme Court, as in umpteen judgments, has been gracious enough to uphold the proposition that it cannot by an erroneous decision as to its own jurisdiction confer the jurisdiction upon itself where none existed, and its decision where it is null and void, is liable to be questioned, whenever and wherever it is sought to be enforced. (Kiran singh and AR Anthulay).
Maybe even in a proceedings under article 226 of the Constitution, though the article does not expressly confer in the High Courts the power to grant a declaratory remedy. However, no writ of certiorari could be sought for quashing a judgment, decree or order of a superior court or a court of coordinate jurisdiction.
To put it pithily, if a judgment or order constitutes to be res judicata, howsoever erroneous it could be, it is final, authoritative and binding, and its correctness cannot be impeached anywhere except in a direct proceedings if any, no review, no writ, no suit will lie. On the contrary, it does not constitute to be estoppel res judicata, nay, it is one rendered null and void, it could be attacked in direct as well as collateral proceeding. By way of appeal/revision, so too, by way of a Writ Petition, (if it be an order of an inferior court or tribunal) or review, or by way of a suit. The actor/Plaintiff is the dominus litis, forum is his choice, namely, the forum conveniens.
The eighth myth is about the unlimited power of the Supreme Court under article 142. The said Article invests in it, in express terms, all the powers of the civil court, so too of a criminal court, to not only conduct a trial wherever it is justified but also to enforce appearance of witness and enforce its decrees, throughout the territory of India. It is a provision akin to section 151 of the CPC, incorporating in express terms, the inherent powers, which the Supreme Court is undoubtedly invested in, as the highest judicial tribunal of the land, to do complete justice between the parties, though the words, “between the parties” is expressly not stated. However, this Article today is interpreted to be as investing the Supreme Court the power to declare the law of the land, which is the exclusive power of the Parliament which includes the President, for, “…that only the King and the Parliament can do..(Mathew Hale-1713).”
i. A close relative of the eighth myth is that, the sky is the limit of the power of the Supreme Court under Article 136. In other words, the Supreme Court can expand its Jurisdiction and go into issues which were not part of the original proceedings. This would mean, violation of one of the fundamental principles that appeal is the continuation of the original proceedings and the scope cannot be enlarged, and the appellant, the actor, even if he is the respondent in the original proceedings in so far as the appeal is concerned, is the master of the proceedings, along with the Plaintiff, the actor.
There are many other myths including the concept of “election of remedies”. For considerations of brevity it is felt that author shall not dwell into the same, except the concept of “Election of remedies”. The concept of “election of remedy” is an odious one. Even many an eminent jurists have a misconception about it. There are four kinds of election:
a. Election of rights;
b. Election of estates;
c. Election of remedies;
d. Election of procedure.
Of all the four concepts, election of remedies is the most odious one, because it is often confused with the “election of procedure.” The general misconception is that, a Plaintiff is entitled to all the remedies unless the remedies are inconsistent. The concept that there is no obligation to elect the remedies unless there is an inconsistency in the remedies, truly speaking, belong to the categories (a) and (b) above, namely, “election of rights” and “election of estates.” In India, the doctrine of election of procedure and the doctrine of election of remedies are confused to be as one and the same, and are often used loosely. The consequence thereof however has been catastrophic. It has meant that the doctrine of estoppel res judicata no longer applicable to Indian jurisprudence. The word remedy is badly misunderstood. Remedies are: common law, equitable and declaratory. A plaintiff is entitled to all the remedies, but there is a caveat, namely, that it should be sought for in one single proceedings, nay, before one single forum. The so called concept of election of remedies has no foundation in jurisprudence. In reality, there are only three kinds of election, namely, election of right, election of estate and election of procedure/forum. Once a procedure/forum is elected, then, such a recourse will constitute to be estoppel. Section 10, 11, 12, Order-1, Order-2 and Order-23-Rule-1 of CPC, so too, sections 38 and 41 of the Specific Relief Act, embodies the principle of election of procedure/forum. Order 2 Rule 2 CPC mandates that a plaintiff shall seek all remedies available to him in the suit which he institutes, and a failure to do so would constitute an estoppel. The concept of election of remedies can have application as contemplated in Order-2-Rule-2 CPC, for, the omission on the part of the plaintiff or intentional relinquishment of a relief is entitled in law would constitute estoppel. The oft stated misconception of the obligation to elect between “inconsistent remedies”, actually falls in the domain of “election of estates” or “election of rights.” The Supreme Court has, the author begs to articulate, in innumerable judgments held that a recourse to a forum or procedure for the enforcement of a right will not constitute to be a bar/estoppel for recourse to another procedure or forum, for the very same right/cause of action/remedy. The fallacy is so manifest that it requires no elaboration. In short, the concept of “cause of action estoppel”, nay, “res judicata estoppel” has been forgotten. The remedies found on the very same cause of action are allowed to be repeatedly to be enforced by recourse to different procedure/forum. This fallacy is so manifest in the Recovery of Debts and Bankruptcy Act, 1993, Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 , Companies Act,2013 and The Insolvency and Bankruptcy Code,2016. The legal system is pyramidal and that is possible only where all parties, all causes, all controversies between the parties are brought before one single forum and its decision is final, authoritative and binding. If multiple forums are created for resolution of disputes of a common nature between the parties, there will be multiple pyramids, leading to no finality; infiniteness.
The aforesaid 10 misconceptions of law, fundamental though, has meant the Supreme Court being perceived to be the most powerful court on Earth, which has no parallel in any other democracy. The Supreme Court of India, today, for all practical purpose is the Supreme Parliament, the super executive and the highest judicial tribunal of the land, all at once. The fact that the Judicial Review could be confined to the narrow limits as expressly stated in Articles 226 and 32 in granting the Writs, remedies expressly stated therein is forgotten. The contrary view herein, even assuming to be unworthy of acceptance ought to be allowed to be raised, discussed and deliberated. The consequence as above could not have been thought of by the founding fathers, not even by the Hon’ble Judges when the judgment in Keshavananda Bharati case was delivered. The full court couldn’t have in the wildest of its dreams contemplated that a day would come, when, in the name of Independence of judiciary (Basic Structure), collegium system will be brought into existence by judicial law making. Justice Bhagwati who propounded the concept of Pro Bono Litigation could not have even in his wildest of dreams contemplated that, PIL, which was evolved by him for the enforcement of private rights of the illiterates, the poor languishing in jail, bonded labourers, etc will be understood as a means for adjudicating matters of policy affecting the public at large which fall into the exclusive province of the legislature and executive. And that too, behind their back. The founding fathers wouldn’t have even imagined that the doctrine of precedent would one day be misconstrued to be empowering the Supreme Court to lay down the law of the land, nay, the subtle distinction between Res judicata and stare decisis would be lost sight of. They couldn’t have imagined that the judges of the Supreme Court would have a predominant role in deciding, who ought to be elevated as the judges of the High Court, so too the Chief Justices of the High Court, nay, the Supreme Court Judges appointing their peers. They couldn’t have ever imagined the High Court to be subordinate to the Supreme Court, for, the Supreme Court which the founding fathers had envisaged was a Supreme Court which had no administrative jurisdiction even over the lower courts. They could not have ever thought of the Chief Justices’ Conferences envisaging an “in-house mechanism” to deal with the complaints against the judges and Chief Justices of the High Courts and the Supreme Court. They could not have equally imagined of the Judicial dynasties, the legal profession being the monopoly of a few families on the Bench and the Bar. All these, the author begs to articulate, which is undemocratic and against the Constitution, became possible only because a few elite class of lawyers destined it to be. The author, if he has the freedom to speak fearlessly what he has in mind, could have stated much more. However, he, being fearful of the law of contempt does not intend to invite any untoward consequences, restrain himself from speaking candidly. Suffice it to say that the state of affairs is far from what it ought ideally to be.
The root cause of the malaise which the justice delivery system faces today are the 10 myths referred above. The solution is not at all difficult, it is very simple. The constitutional law of this country has been badly affected by the aberrations which the above said 9 myths constitute to be. The solution is simple, go back to the letter and spirit of the constitution. Accept the principles of separation of powers, nay, the supremacy of the executive, legislature, so too the judiciary, in their respective provinces. Realise that the concept of judicial review was stretched too much. So too realize that Art. 141 of the constitution invests no power to declare the law of the land which is in the exclusive province of the parliament and that, Article 141 only embodies the principle of staire decisis/ precedent. Realise that PIL can only be in the enforcement of private right of those who out of their poverty or illiteracy cannot approach a court. Realise that matters concerning the public at large nobody other than the Attorney General has a right to represent the cause of the public at large. Realise that PILs are without any jurisprudential foundations for the simple reason that if the public issues are justiciable on which hypothesis PILs are instituted then the entire citizenry has to be heard. Realise that, under the PIL jurisprudence, no new remedies were evolved. Before the PIL era and subsequent to its invention, the legal remedies which could be sought for in matters concerning the public at large are in the nature of mandamus.
In the ultimate analysis, the real reason for all the malaises which threatens the sacred foundations of our justice delivery system is the patent discrimination that is in the temples of justice, ordinary lawyers vis-a-vis the elite class lawyers the kith and kin, the judicial dynasties ; so too between the litigants who are under privileged and the poor and the rich and the super rich. Many of these differentiations and differential treatments, necessarily are not deliberate, but are subconscious, unconscious and non-conscious. The devil is section 16 and 23(5) of the Advocates Act which has legitimized division of lawyers into two classes: the common class and the elite dynasties; and investing in the latter, special privileges and title. The NLC has sought repeal of the said provisions. The response which the NLC received has been quite encouraging, yet, falling short of any concrete action. Though nothing has been communicated in writing, many have expressed their absolute agreement to the concept of common dress code for all lawyers, without any discrimination as junior or senior, so too the hierarchy of courts. The author believe that, therefore they are within their rights to seek a mandamus directing the authority to consider their plea for a uniform dress code, a uniform bar, without anyone being clothed with special privileges or titles. The judges 2 and 5 cases is a result of the culture of sycophancy which has assumed alarming proportions. The culture of ‘face value’ where the outspoken lawyers who dare not to mince words, have no place.
The author is the President of NLC (National Lawyer’s Campaign for Judicial Transparency and Reforms)