Tuesday, 24 October 2017

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 anyones 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. 

The author is the President of NLC (National Lawyer’s Campaign for Judicial Transparency and Reforms) 

Monday, 8 August 2016

JUDICIAL INDEPENDENCE AND SUPREMACY IN INDIA

http://adv-a-c-philip.blogspot.in/2016/08/judicial-independence-and-supremacy-in.html




SUPREMACY OF ORGAN IN A BODY.  can be read on the above blog URL

AN OPEN LETTER TO THE LEGENDARY FALI S. NARIMAN

8th August, 2016

AN OPEN LETTER TO THE LEGENDARY FALI S. NARIMAN

To

    Shri Fali S. Nariman,
    Senior Advocate,
    Supreme Court of India,
    New Delhi.

Most Respected Sir,

                   Before the NJAC case, Sir, I had only heard about you, not even heard your arguments; you were a demi-God to me.  In the NJAC case, the hearing of which went on for 31 days, I heard every word of yours with great patience.      I must confess that you no longer remain in my mind to be a demi-God; you are almost 30 years senior to me by age and practice; I have all the respect for you for the age and standing which I am obliged to confer.  I would not have asked any question to you even while I had the greatest of disagreement with you but for the fact that the judgments of the Supreme Court in the NJAC case had not meant the abrogation of the right of 95% of the legal fraternity who hail from humble backgrounds, being the sons and daughters of farmers, teachers, taxi drivers and small time traders, the common man, for an equal opportunity to aspire for the high constitutional office of the Judges of the Supreme Court and High Courts. I would not have asked this question had Articles 14 and 16 of the Constitution, namely, equality before law and equal opportunity for public offices, are not infringed; I would not have asked this question had the will of the people represented by both the Houses of the Parliament and 21 State Assemblies, which have ratified the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short), had not been thwarted by means of the judgment in the NJAC case, where a Bench of five Hon'ble Judges dared to say that they are quashing the said Acts; I would not have asked this question had I not had equally, if not greater, concern for the majesty of the Supreme Court and its pivotal role as the highest Court of the land and had I not have a deep concern for its feature as the Supreme Court.  Sir, you are the doyen of the Bar, the legend, and in comparison I am no one.  Yet,     I dare to ask this question, for, the energy I draw for it is the power of conviction, the moral power. The questions which I ask are three, namely:

(1)         Sir, you pleaded in the NJAC case that the aforesaid Acts infringed or violated the “independence of judiciary”, one of the basic structures of the Constitution and, therefore, they are liable to be struck down as unconstitutional. You had no case that the said Acts violated any fundamental rights of SCAORA or any of its member; so too of any of the Judges of the higher judiciary whose appointments and transfers were to be regulated by the said Acts.  You had no case that there existed a “person aggrieved” whose fundamental or legal rights were infringed and who is entitled to enforce his remedies which the law will entail in him and the Supreme Court is the forum to enforce such remedies.  Your only case was that the said Acts, which are in the realm of executive or legislative policy, violate the basic structure of the Constitution.  Let me underline that you had no case that anybody’s fundamental right is violated; your only case was that the said Acts violated the basic structure of the Constitution; so too was the case of Shri Anil
Diwan, a no less stalwart as your kind self, representing the Bar Association/Council of India, Shri Dattar, representing the Madras Bar Association, and Shri Bhushan (Centre of all PILs).Let me ask you a simple question – if violation of basic structure of the Constitution is justiciable, who all are entitled to seek such a declaration at the hands of the Supreme Court and who all are entitled to be heard in support or in opposition thereof?  I am sure you will never say that the right to seek such a declaration is the exclusive privilege of leaned and privileged lawyers like you who practice in the Supreme Court. I am sure you will concede that such right is invested in every lawyer who practices in the different parts of the country. I am sure you will also not dispute that such right cannot be the monopoly of lawyers; it has to be conceded to each and every one of the 129 crores people of this country.If basic structure of the Constitution or violation thereof is justiciable and amenable to judicial review, then the entire people of this country have a right to be a co-Petitioner or Defendant to support or oppose it. There cannot be a more ridiculous proposition that a Court should decide a case where it has to concede a right of participation in every citizen either in support of against it.  I am sure you will concede that if SCAORA had a right to seek that the said Acts are unconstitutional, those who supported the said Acts, millions and millions, too had a right to say that the said Acts were constitutional. I am made to understand that hundreds of such petitions are in the offing.

(2)         Secondly, the ordinary lawyers and ordinary citizens of this country are not much concerned about who has supremacy or final say, whether the judiciary or the executive, in the matter of appointment of Judges to the higher judiciary.  An ordinary lawyer who has an ambition to become a Judge has only one question as to whether a day will come when applications are invited for selection and appointment of Judges when he could apply for and submit his expression of interest and whether his application will be fairly considered.  And what the common man is all concerned about is whether he will have the best of Judges from among the available eligible lawyers.  The concern to them is not who is appointing, but who are appointed; whether it is from a small pool of kith and kin of sitting and former Judges of the Supreme Court and High Courts, their juniors, celebrated lawyers, Chief Ministers, Governors et al, and a few first generation lawyers who are all politically connected or are close to big industrial houses or from a larger pool which will offer greater diversity. The question, therefore, which I pose is, would you be kind enough to address the real issue as to who are selected and how they are selected and appointed.  The common man is not interested in the supremacy of the judiciary or of the executive; what he wants is an independent Judicial Commission which will select the best Judges by recourse to a transparent procedure. Now the question is, will you join us to demand advertisement of the vacancies of Judges by the collegium, invitation of applications, processing the same and selection and appointment of the most eligible and deserving candidates as Judges, no matter even if it is to be by the collegium.

(3)         The third question I ask is, will you make a little sacrifice, which I believe you are duty bound to do, to strengthen the confidence of the common man in the higher judiciary.  The NJAC case, in the eyes of the common man, was nothing but the fox being the jury at the goose’s trial.  Veteran Col. Ved Prakash from Jaipur, told the Constitution Bench in the NJAC case, while it heard the public at large on the ways and means by which the collegium system could be improved, that the judgment in the NJAC case was a judicial coup de’tate; that thousands and thousands of people shared the same opinion.  Hon’ble Justice Khehar is a noble judge whom I hold in high esteem; to me His Lordship is a demi-God.  Yet, the public perception is that His Lordship decided the NJAC case where there is a conflict of interest.  His Lordship is expected to assume the august office of the Chief Justice of India on 5.1.17 and to preside over the collegium.  The public perception is that had the aforesaid Acts not been set aside, His Lordship would not have assumed the absolute power of selection and appointment of judges, which the judgment in the NJAC case conferred upon him, but His Lordship would have only been heading the NJAC where two eminent persons, who were to be selected by a Committee consisting of the CJI, as well, could have negativated a proposal at His Lordship’s hands.

As I said at the outset, you are always seen as the epitome of all virtues, the highest of ethical standards, a role-model for the legal fraternity, nay, even the entire country.  You were known to be highly critical of the collegium system, but after your son Hon’ble Shri Justice Rohinton Nariman was elevated as a Judge of the Supreme Court, the perception, is that your gracious self unconsciously, non-consciously and sub-consciously,though, identified with the judicial fraternity and fought for the collegium which, Sir, you yourself had castigated as opaque, non-transparent and a failed one.  Sir, you practice in the Supreme Court where your son is a Judge; it is plainly against the Rules of the Bar Council of India.  Judges in Mumbai, Punjab & Haryana and Allahabad, where their kith and kin practice in large numbers, may offer an excuse that the Bar Council of India Rules require a strict interpretation and since you are not appearing before the Bench of which your son is a member you commit no breach of ethics.  I dare to ask you in all humility, Sir, are you subscribing to the very same excuse?

                   With respectful regards,

                                                                Yours sincerely,
                                     
Sd/- 
         (Mathews J Nedumpara)
President.