Thursday, June 8, 2023

The Regurgitation Theory

Our justice delivery system is paying a great price for what the founding fathers did with a laudable objective, namely, to ensure consistency and certainty in law. However, they must be turning in their graves, because of the violence we have done to Article 141. It is time for a rethink.

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Article 141 in the Constitution of India 1949: The law declared by the Supreme Court shall be binding on all courts within the territory of India.

By Mathews J Nedumpara

Law is a simple subject. It ought to be simple, because it is all about regulating the conduct of our society, institutions and government. It does not require a great intelligence to understand that it cannot be as complex as rocket science. However, if you enter a lawyer’s chamber, you will find tomes of law reports, textbooks and commentaries. Judgments in simple cases, for instance, arising out of a dishonour of a cheque, matrimonial dispute, bail, recovery of debt due to a bank, sometimes run into hundreds of pages. Why?

Often a lay litigant—possibly involved in a cheque bounce case or a motor accident case or a matrimonial dispute—will find nary a reference to the particular case in point, but hundreds of pages of extraction after extraction of cases decided in the past between third parties instead. The litigant is aghast, and wonders why the judge has taken so much time to discuss some past cases where he has discussed practically nothing about his own case.

However, lawyers and judges find nothing wrong with this.

Why do lawyers and the litigants perceive things so differently? The reason is simple. Lawyers, from the very first day of their practice, find their seniors citing large number of judgments in support of their respective cases and the judge listening to them patiently and religiously, referring to the judgments that were cited, nay, quoting them extensively. He would have found that seniors are unable to argue more than one or two minutes without citing judgements, even on a simple issue, such as non observance of principles of natural justice. There are only two principles of natural justice: (a) hear the other side (b) nobody shall be a judge of his own cause. But there are thousands upon thousands of reported judgments on the same issue.

We, the legal fraternity—lawyers and judges—find nothing wrong, because precedent is a major source of law. The founding fathers, by virtue of Article 141, gave it further sanctity. Our justice delivery system is paying a great price for what the founding fathers did with a laudable objective, namely, to ensure consistency and certainty in law.

However, they must be turning in their graves because of the violence we have done to Article 141.

Article 141 did not mean that judgments of the Supreme Court are the law of the land. It did not confer any power on the Supreme Court to make a law, but only to declare law. They do not mean that the judgment of the Supreme Court will be binding on those who were not party to it. On the contrary, the founding fathers had only meant that the record of the court will be binding only between the parties, whereas the record of the Parliament (legislation) will be binding on all, because we are all parties to the record of Parliament.

The founding fathers had only meant that the principle or ratio of a judgment of the Supreme Court will be binding on those who were not party to it, nay, future litigants as a precedent. The founding fathers couldn’t have ever imagined that a day will come when the lawyers and judges fail to notice the distinction between the concept of res judicata and precedent. Res judicata means even an erroneous decision of a court is binding between the parties.

If, in a case between A and B, the majority in a bench of five judges hold that goat is a dog, that is final, authoritative and binding between A and B. What is determinative is the majority opinion. However, so far as precedent is considered, the strength of the bench is wholly irrelevant. The reason alone is relevant.

However, the powerful lobby of lawyers in Delhi, to suit their vested interests, created the myth that judgments of the Supreme Court is the law of the land and the determinative test is the strength of the bench and the majority view of the bench.

I don’t think it is an innocent mistake. If it were so, that is the failure to notice the difference between doctrine of res judicata and stare decisis (precedent, or, to stand by decided cases). Their agenda was to rule the country using the judiciary as a pawn. They emasculated Parliament by asserting that the judgment of the Supreme Court in Kesavananda Bharati is the law of the land, binding on the citizens who were not parties to the case and the posterity. The powerful lobby in Delhi further usurped to themselves the executive and legislative powers of “we the people”, using PIL as a tool.

A powerful lawyer in Delhi, a PIL petitioner today, claiming himself to represent the people of this country, files PILs and decides what falls in the province of the executive and legislative policy. Such has been the decision that judges shall appoint themselves. The Constitution does not contain any provision for a collegium. They created it by further cementing the myth that judgments of the Supreme Court are law of the land, which will prevail over the written Constitution.

Alas, in the NJAC case, the Supreme Court held that a judgment of the Court in Judges 2 case is the basic structure of the Constitution and it cannot be dismantled even by a Constitution amendment.

I would say that a few elite lawyers staunchly support and safeguard the myth which best serves their vested interests—the issue that the judgments of the Supreme Court is the law of the land. Because an all-powerful Supreme Court would mean that they could bring everything under the sun to the jurisdiction of the Court and reap rich dividends.

There is another class of lawyers—actually, the vast majority—who genuinely believe that the judgments of the Supreme Court contain new principles of law which the Court has evolved for the first time where none existed.

I have been a Doubting Thomas for a pretty long time, and particularly since 1994, when I went through the Judges 2 case to my great shock. The question which I have been raising, which no one has answered till date, is—if Article 141 means reason for the decision, a principle as a precedent, tell me one principle which never ever existed in common law which the Supreme Court has evolved for the first time.

Nobody has been able to cite any principle except the basic structure and PIL, and neither has any foundation in jurisprudence. The British had codified common law principles into statutes, a mammoth task which they undertook soon after they took over the governance of India in 1858. There is no need for us to unduly cite large number of decisions in the course of the hearing and for the judges to refer them in their judgments, because it is absolutely counter-productive and meaningless. That will make the judgments break and the decisions less perverse and intelligible to the litigants.

Finally, the solution I suggest is to completely dispense with the practice of needless citations and long judgments. We must consciously propagate that the best legal literature is the simplest one and our real models are the likes of Lord Dennis, Benjamin Curdazo, Vivian Bose, KK Mathew, etc.

The recent judgement of the Supreme Court in the Puttaswami case (right to privacy) is a classic example of how a subject which Justice Chettor Shankaran Nair in Madhavi vs Tilakan dealt within four pages, later made incomprehensible by a Constitution Bench of the Supreme Court by a judgment running into hundreds of pages.

 —The writer is a lawyer practising in the Bombay High Court, both on the original and appellate side. The opinions expressed are entirely his own

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