The law is an ass – an idiot

1. In G.W. Paton’s “A Textbook of Jurisprudence” 4th Edition, at page 223 it is said “In America the increase in the number of reported cases has led to a modification of the concept of stare decisis – by 1940 the total number was nearer the two million mark and the flood is more than human ingenuity can cope with”.

2. The American Constitution has no equivalent to Article 141 of the Indian Constitution which states that “the law declared by the Supreme Court shall be binding on all Courts and Tribunals”. Recently, a Bench of Hon’ble Justice Khanwilkar held that even short judgments of the Supreme Court shall act as binding declaration of law. In the continent of Europe and elsewhere where the common law is followed, the concept of binding precedent has no application and a lower Court can depart from the decision of the superior Courts which are not absolutely binding. The historical reason for this difference between countries which follow the civil law and those which follow the English common law is that in the European continent the laws were codified while in the common law countries codification of law was far less comprehensive in nature.

3. In so far as no legislative draftsman can foresee the problems which may crop up in future for adjudication, no legislature or Court can be exhaustive or complete and there will be innumerable situations where Courts have to fill up the gaps, in other words, legislate in the interstice. While entirely admitting the validity of the doctrine of stare decisis and the need to honour judicial precedents, a time has come, nay, it is too late, to acknowledge the absurd limits to which the concept of precedent has reduced our justice delivery system. We do not have any exact statistics as to the number of reported judgments of the Supreme Court, High Courts and Tribunals in our country. It may be, I am made to believe, not less than five millions. How many pages those reported judgments would run into is beyond anybody’s imagination, for, judgments of the Supreme Court in Keshavanand Bharati had exceeded 5 lakh words. The judgment in the NJAC case rendered in 2015 has almost half a million words, the judgment in n S.P. Gupta is not too far behind, and the like.

4. In Europe, Justinian codified the law in the form of a digest, which was nothing but the opinions of jurists and lawyers of his time. The British, after taking over the administration of India from the East India Company, went on codifying the common law into Acts of Parliament for the better administration of justice in India. The consolidation and codification of laws were intended for securing greater certainty of laws so that a law-abiding citizen is able to know what the law of the land is; he can arrange his affairs in accordance therewith; he would know what is permissible in law and what is not; so too the outcome of a litigation. During the last 70 years since independence, the legislature and Courts in India have enacted so many legislations. The Courts came out with legislations and decisions running into thousands and thousands of pages and we have reached a situation where nobody knows what is the law.

5. What is a stare decisis or a precedent, strictly speaking, is the reason for the decision which a superior Court has evolved for the first time for resolution of an issue before it for which no principle was available. That principle is binding on Courts subordinate to it and even on itself, subject to its overruling by a superior Court itself. Though lawyers rely on judgments running into thousands of pages in support of their respective pleas, one would not have ever come across a single principle which the Supreme Court of India and High Courts have evolved where none existed, with the sole exception being the doctrine of basic structure of the Supreme Court in its judgment in Kesavananda Bharati. Though the judgment in Kesavananda Bharati is hailed as the Fundamental Rights case, but for which the freedoms and liberties of the citizens of the country would have been buried, it is contrary to the first principle of jurisprudence. Before Kesavananda Bharati, one could have invoked Article 32 of the Constitution only if his/her fundamental right is infringed/violated. After Kesavananda Bharati, the so-called self serving activists invoked the jurisdiction of the Supreme Court under Article 32 asserting no violation of fundamental right, but abrogation of basic structure. The judgment in Judges-2 case is the classic example. It is worth remembering that it was only after the judgment in Kesavananda Bharati that Emergency was declared, which meant the destruction of the very basic structure of the Constitution. But it was not the Supreme Court which saved the fundamental rights, nay, the basic structure, but the common man through the ballot, by throwing Indira Gandhi out of power.

6. The concept of stare decisis/precedent is founded on the principle that the gaps in the legislations be supplied with the literal interpretation of the legislations eschewing absurdities and that uniformity and certainty of law is achieved by following settled principles. However, all those laudable principles are absolutely lost. A Judge certifies his judgment to be reportable not because he has been able to discover any new principle where none existed, so that the new principle so evolved by him could be followed as a precedent in a subsequent case, but out of his anxiety to be seen to be contributing to the “growth of law”. In India, the Chief Justices of India have often a short tenure and in their anxiety to deliver as many path-breaking judgments as possible, they constitute Benches on a war footing to hear cases which have no real urgency, nay, if decided, rather than making peace will lead to social unrest. The judgment in Sabarimala case is a classic example.

7. Today litigation is an absolute gamble with millions of reported judgments rendered without even referring previous judgments on the subject, often which cannot stand together. This has resulted in such a situation that for any absurd proposition one will have a long line of decisions to support. To cite an example, where a statute does not expressly cast an obligation on the authority whose decision is likely to adversely affect the interest of a party before it, such party ought to be heard, there are any number of judgments to be relied on. However, ignoring such settled proposition of law, Courts hold that even a person whose very residential home is to be dispossessed has no right to be heard; that he has no locus even, again citing large volumes of judgments. A proceeding under Section 14 of the SARFAESI Act is a case on hand.

8. The situation today is far worse than when Charles Dickens said “Law is an ass, an idiot”. Judgments are read as statutes, nay, even in substitution of statutes. A judgment today is considered as having far greater authority than even the Constitution. The classic example is the judgment of the Supreme Court in the NJAC case where it held that the Constitution (Ninety-ninth Amendment) Act, 2014 is unconstitutional because it is contrary to the judgment in Judges-2 case. Everywhere else in the world, if a judgment is in conflict with a statute, the statute will prevail and if one were to say that a judgment will prevail over a Constitution, its sanity will be doubted.

9. The scenario today is that in our Courts Acts of Parliament, even constitutional provisions, carry little respect. What is authoritative and binding is the precedent. Judgments, unlike statutes, are not in concise form. The principle of law has to be culled out from a judgment having hundreds and hundreds of pages. Nobody has time for that. A lawyer, like a magician, would draw out from his pocket, often without giving a copy thereof to the opposite party, and read one or two sentences asserting that to be the law. If the lawyer is one who has got good equations with the Judge, a judgment is granted in his favour relying upon the judgment so cited. If the lawyer is not in the good books of the Judge, the Judge will brush aside whatever citation is sought to be relied upon. In other words, the Judge is free to decide in whatever way he likes, no matter what the statute says, with a judgment cited or handed at the Bar. The only solution one could ever imagine to avert such a situation is video-recording of Court proceedings and access to such proceedings to the parties to the litigation and the public at large, which will also mean some sense of transparency and fairness.