Above: Illustration by Anthony Lawrence

The Supreme Court has termed the practice of citing cases overruled by a larger bench as “unfortunate”. But it is the duty of the Bar to assist the Court and not mislead it. Besides wasting time, is it not a criminal act?

By Prof Upendra Baxi

Once again the Supreme Court of India has held in Raj Kumar (October 4, 2019) that it was “unfortunate” that at the “Supreme Court level counsel cite judgments that have been overruled” (as per Justices Deepak Gupta and Aniruddha Bose). Of course, in that case, the refusal to exercise Article 142 to do complete justice and to send the appellant to jail after 20 years by way of minimum sentence under food adulteration causes concern; there is not even a whisper of a justified clemency! Does a jail sentence, two decades later, serve any justified end of punishment?

But the main focus of this analysis is the practice of citing overruled cases. We do not know how inveterate this practice is. But the apex court encountered it previously. Justices Arijit Pasayat and CK Thakkar in Nalinikanta Muduli (2005) found it “strange” that “a decision which has been overruled by this Court nearly quarter of a century back was cited by the Bar and the court did not take note of this position and disposed of the matter placing reliance on the said overruled decision”. Apparently, “the decision of this Court reversing the judgment of the High Court was brought to the notice of the learned Single Judge who was dealing the matter”.  Terming again the situation as “very unfortunate”, Justice Pasayat famously held: “Members of the Bar are officers of the Court. They have a bounden duty to assist the Court and not mislead it. Citing judgment of a Court which has been overruled by a larger Bench of the same High Court or this Court without disclosing the fact that it has been overruled is a matter of serious concern.” It held that “it was duty of the learned counsel appearing for the petitioner before the High Court not to cite an overruled judgment. It is not that the decision is lost in antiquity. It has been referred to in a large number of cases since it was rendered. It has been referred to recently in many cases…”

In Sunita Pandey (2018), Justice Lok Pal Singh (and Justice VK Bist) faced a piquant situation where the lawyer responded that “he is not aware of the judgment of the Hon’ble Apex Court”. The Court held that a “lawyer is supposed to have the knowledge of a judgment delivered by the Hon’ble Apex Court, which is the law of land” and “cannot make excuse for unawareness of a particular judgment of the Hon’ble Apex Court and also cannot be permitted to cite a judgment, which has already been overruled”. Further, a “lawyer is known for his legal acumen. He should not have argued the Writ Petition (PIL) and should have suggested his clients to withdraw the Writ Petition (PIL) but the attitude of the learned counsel for the petitioners that he has been engaged to argue the matter appears to be against the ethics of a lawyer and further it appears to the Court that he has not given proper advice to his clients”.

What makes the case interesting is that instead of withdrawing the petition, “the learned counsel for the petitioners has again wasted valuable time of this Court for his own satisfaction” when numbers “of litigants are waiting for their turn”.

The Court further said: “We were expecting from the learned counsel… that he should make a statement on behalf of the petitioners that the petitioners were not aware of filing the Writ Petition (PIL) on the judgment passed by the Hon’ble Apex Court and, therefore, they have filed the aforesaid Writ Petition (PIL) on an advice or on bonafide mistake of fact, but, the petitioners and their counsel are not ready to make such submissions before this Court”.

What is bizarre about this situation is not simply that the learned counsel insisted on being further heard, the Court thought that he had “no option but to decide the Writ Petition (PIL) on merits, as the counsel has insisted this Court to decide the matter on merits after giving him full opportunity”. Even more astonishing is the Court’s own reluctance to follow the Supreme Court ruling on vexatious and frivolous cases. In Suraz India Trust (2017), it was said that such litigation “should be declined and be tackled with iron hands”. The Supreme Court there levied a fine of Rs 25 lakh. But the High Court was content to award exemplary damages of Rs 50,000 given the fact that the petitioners are “the residents of hilly State of Uttarakhand, they might not be in a position to pay such huge exemplary cost….”

All the High Court did was to lament: “We can only express our anguish at the falling standards of
professional conducts.”

In yet another case, Major Ashok Kumar Singh, 1999, the Allahabad High Court was constrained to say that it is “very unfortunate that this decision … of the Supreme Court was not cited at Bar on behalf of the counsel of either side. It is also unfortunate that responsible members of the Bar are citing overruled decisions which may also result in obtaining wrong judgments from the Court. It is expected that in future the members of the Bar will take care in citing decisions and will at least not cite overruled decisions”.

Many questions thus arise. First, what is the overall situation with regard to the citation of overruled past decisions? Obviously, it is far from being a one-off situation. It is certainly more frequent, but do the judgments discussed here suggest any institutionalised pattern? Only nationwide empirical studies may show whether it is a case of a few rotten apples or whether the entire orchard is blighted. The present information certainly shows a cause for concern.

Second, are the acts of citing overruled decisions to be regarded as merely “misfortunes” or acts of “injustice”? Professor Judith Shklar valuably drew attention to the distinction between the two in The Faces of Injustice (1991). She showed that the more the scope of misfortunes (accidents), the less becomes the scope to regard the events as injustice (willed harm or sheer defiance). Injustices call for active structural amelioration; misfortunes have to be borne as graciously as one can.

Third, what duties may the organised learned profession of lawyers be said to owe to the judiciary and society at large? Indian law schools, by and large, indifferently offer a course on legal ethics. The Bar Council is normatively the custodian of high professional standards. But neither have done much to study or redress this problem as a matter of the best ethical standards and practice of a learned profession. This must now swiftly end. We must also expect the National Judicial Academy and state academies to have an institutional stake in addressing this issue.

Fourth, should not justices go beyond gentle admonitions to a stricter regime of discipline? Why are the courts so helpless before errant lawyers? Is it because sometimes the judges make similar errors? But as and when they do, why are they not sternly handled by the disciplinary judicial mechanisms of passing strictures and maintaining an adverse record so that such judges at least do not get further elevated?

Further difficult questions arise in considering whether mis-citation or non-citation is a contumacious or criminal act. There are difficulties as far as criminal contempt is involved since it will have to be shown that the accused had an intention of duping the court. Should a criminal prosecution lie for alleged misrepresentation under Section 420, IPC? Should it be made a strict liability offence? Does inadvertence (or wilful disobedience as in the Uttarakhand case) not invite stern action by the judiciary? Should not the Bar Councils act in statutory disciplinary proceedings, or should even the apex court inconsequentially rest by merely describing the situation as “unfortunate”? Is it not the duty of courts to nudge, or even in egregious cases to impose, some punishment?

It is time that such questions are increasingly faced if trust and faith in professional lawyering and responsible and responsive justice to the people are tasks still considered worthy of ceaseless pursuit.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer