TEN MYTHS OF INDIAN
CONSTITUTIONAL LAW
-Mathews
J.Nedumpara
Introduction
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 5thand 14thamendment 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. Ourconstitution, 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 inaddition 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 unwittingly supported the legislations. In the ongoing tussle, the judiciary
ultimately established its supremacy in KeshavanandaBharati’s case by holding that it
has the power to declare even a constitutional amendment as
unconstitutional. In KeshavanandaBharathi 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 KeshavandaBharathi 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 KeshavanandaBharati’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 KeshavandaBharati’sjudgment 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 recipitorquestiosed de scientiasive sit error
jurissivefacti, 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 KeshavanandaBharati. 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 ChiefJustice Coke. Ubi jus
ubiremedium, 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 KeshavanadaBharati, nobody would have dared
to invoke Article 32 unless he had a grievance that his fundamental right was
violated. KeshavanandaBharati 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.
Anine
JudgeConstitution
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 AttorneyGeneral/ 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 judgesand to institutionalise the same by
introducing the concept of ‘Collegium’ but for the KeshavanandaBharati 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. TheUnionof 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.
THIRD MYTH: MATTERS CONCERNING THE PUBLIC AT LARGE
ARE JUSTICIABLE
While, the basic structure concept is flawed, one meant the
concept of probono litigation misnomereda 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 Shakespearein 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 JusticeBhagwati 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.
FOURTH MYTH: STAIRE DECISIS IS RES JUDICATA
i.
From the misconception of the basic structure and PIL discussed as above, other misconceptions are of the
fundamental principles of res judicata and stairedecisis.The failure to distinguish
between the two concepts meant yet another catastrophe. The Article 141 of the constitutionembodies the doctrine of stairedecisis. 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 decisismeans,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 themand they cannot lodgea 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
Din 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 KeshavanandaBharathi 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 KeshavanandaBharati, 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 Honblejudges, will certainly refuse to
entertain such an argument. It may even
be misconceived as being disrespectful of the Supreme Court.
FIFTH
MYTH: THE CIVIL COURTS HAVE NO JURISDICTION TO INTERPRET THE CONSTITUTION OR
DECLARE AN ACT OF PARLIAMENT AS VOID
i.
The fifth mython which the edifice of the Constitutional
Lawof 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 forthe
grant of declaratory relief, even while the said Article has notexpressly investedthe 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.
SIXTH MYTH: POWER OF JUDICIAL REVIEW KNOWS NO
LIMITATION-CAN ACT CONTRARY TO THE CONSTITUTION
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 tobe. In judges-2casetheSupremeCourtasserteditsprimacynaysupremacyindecidingappointmentortransferofjudges,evenwhensuchassertionmeantcontrarytowhatthetextoftheconstitutionmeant.TheJustificationofferedwasthatthejudicialreviewwasoneofthebasicstructuresoftheconstitution.Theauthorhasnoqualms aboutthepowerof
JudicialReviewwithinthelimitationsuniversallyrecognized.Nowhereintheworld,powerofJudicialReviewisunderstoodtobeasinvestingthecourttoactcontrarytotheconstitution.ThepoweristoundoactionswhichareagainsttheConstitution.Constitutionissupreme,thelegislature,executiveandjudiciary,allareboundtoactwithintheconstitution.Art.13(2)oftheconstitutionofIndiaexpresslysaysso;theprovisionis crystalclear.Allactionsofthestatewhichare
ultravirestheconstitutionarevoid.Theword“State”takeswithinitsambittheParliament,theExecutiveandtheJudiciary.Howeverthemythwhichistheresultofjudgmentsrunningtohundredsofpagesisthat,thejudiciarydoesnotfallwithinitsambit.TheJudges-2casebywhichthe collegiums systemofappointmentandtransferofjudgeswasintroducedbyjudiciallegislationevencarriesthepropositionthatthedecisionsofthecollegiums arenotamenabletojudicialreview.Thecollegium conductsitsaffairsinthemostsecretivemanner.ApplicationsundertheRTI
Actseekinginformationastoitsproceedingsaredeclined.Thescenarioismostdisquieting.Allthattheworldtodayknowsaboutthedecisionofthecollegiums allegedlytransferringJusticePatelfromKarnataka High
CourttoAllahabad High
Court,todenyhimtheopportunitytobeelevatedastheactingCJ/CJoftheKarnatakaHigh
Court arethemediareports,sotoo,thewindmillofrumoursandwhisperswhichfillthecorridorsofthecourt.Manydisquietingthingsareheardwhichduetoconsiderationsofreticencetheaurthorrefrainfromdwellingintothesame.Thelegalfraternityisaghastfortheythinkthatthereisnoroomfor judicialreviewintheprovinceofthecollegium,evenwhileappointmentandtransferofjudgeswhichthe
collegiums undertakestotheexclusionoftherestoftheworldispurelyanadministrativefunction.Thismisconceptwhichhasmadethe
collegiums animperioinimperiumisthedirectresultoftheyetanothercalamitousmyththat thejudiciaryisnotaStatewithinthemeaningofArticle12.
SEVENTH MYTH: JUDICIARY IS NOT A STATE WITHIN THE MEANING
OF ARTICLE 12.
i.
The seventh mythisthedirectfalloutofthemythnumbersixabove,namelythatajudicialdecisioncannotbecollaterallychallenged.Theperceptiontoday,thoughmanifestlycontrarytothefirstprinciplesofjurisprudence,namely“resjudicataestoppels”isthatjudicialdecisionsofthesuperior
courtcannotbechallengedinacollateralproceedings.Manyerroneouslybelievethatwhereajudgmentofasuperiorcourtisvoidabinitio,eitherbecausethepartiesaffectedwerenotheard,asisthecasewithPILsorwithoutjurisdiction,theonlyprocedureopentothepartyaggrievedistochallengethesamein“directproceedings”bywayofanappealorreview.Theauthorhascomeacrossoftenevensuchreviewsatthehandsofsuchaffectedpartieswhoarenotheard,are
dismissedonthegroundthattheywerenotpartiestotheoriginalproceedings. The Doctrine of estoppel, nay, resjudicata
and the doctrines of res inter alios and nullity are the veryfoundations
on whichthe 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) thata 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 interestoReipublicaeUt 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, nemodebetbisvexari pro una et eademcausa. 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 justitiaruat 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, quandolexaliquidalicuiconcedit, Omnia
incidentiataciteconceduntur 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. (Kiransingh 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 resjudicata, 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
resjudicata, 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 dominuslitis,
forum is his choice, namely, the forum conveniens.
EIGHTH MYTH:UNDER ARTICLE 142, THE SUPREME COURT IS
INVESTED WITH UNLIMITED POWERS/CAN
DECLARE THE LAW OF THE LAND
Theeighthmythisabouttheunlimitedpowerofthe
Supreme Courtunderarticle142. 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 toenforce appearanceof 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).”
NINETH MYTH: THE SUPREME COURT, IN
ITS APPELLATE JURISDICTIONUNDER ARTICLE 136 CAN EXPAND ITS JURISDICTION OUTSIDE
THE ORIGINAL PROCEEDINGS
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.
TENTH MYTH: THERE IS NO
CAUSE OF ACTION ESTOPPEL, NAY, ESTOPPEL RES JUDICATA; THERE CAN BE NO BAR TO
MULTIPLICITY OF PROCEEDINGS
Therearemanyothermythsincludingtheconceptof“electionofremedies”.Forconsiderationsofbrevityitisfeltthatauthorshallnotdwellintothesame,
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 resjudicata 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, “resjudicata 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 CONTEMPORARY ISSUES ARISING OUT OF THE ABOVE MYTHS AND
THE REMEDIES THERETO
The aforesaid 10misconceptions 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 KeshavanandaBharaticase 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 stairedecisis/
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.
