Marriage, according to the Hindu law, is a holy union for the performance of religious duties. It is not a contract. Mere fact, therefore, that a marriage was brought about during the minority of either party thereto, does not render the marriage invalid. A Hindu marriage is considered a sacrament, as the acceptance of the bride is a necessary and indispensable part of the ceremony. It was held by Bombay High Court in (1908) 32 that marriage amongst the Hindus was a sanskara or sacrament. It is the last of the ten sacraments enjoined by the Hindu religion for purifying the body from inherited taint. Same view was taken by Madras High Court in Gopalkrishnam v. Venkatnarasa (1914) 37.

The words “sacrament” or “sanskara” has various context driven meanings that broadly refer to “the putting together, accomplishing well, making perfect, a form of solemn recognition and getting ready”. Further sanskara or sacrament refers to learned behaviour repeated over a long period of time. It leaves impact in producing qualitative society. Religious purificatory rites and ceremonies are essential for sanctifying the body, mind, and intellect of an individual so that he may become a full-fledged member of the community or society. Personal sacraments are traditionally observed at every stage in a Hindu’s life, from the moment of conception to the scattering of funeral ashes. As per the Law Lexicon, according to Hindu law, marriage is a samskara and hence marriage of every coparcener is a family necessity.

Marriage and sonship constitute some of the unique chapters in the literaleges of ancient Hindu law. As early as the times of Rig-Veda marriage had assumed the sacred character of a sacrament and sanction of religion had heightened its character and importance. Marriage is the last of the ten sacraments, enjoined by Hindu religion for regeneration of men and obligatory in case of every Hindu who did not desire to adopt the life of a hermit or a Sanyasi.

However, with the passage of time a stage was reached when codification, in the matters of marriage and succession, had become indispensable. Far-reaching and fundamental changes had become inevitable for they alone could furnish fair and equable solutions to some of the most controversial questions in these areas. In the field of Hindu marriages, The Hindu Marriage Act, 1955 (Act for short) was passed by the parliament which came into force w.e.f. 18th May, 1955.

With the coming into force of the Act, various grounds were laid on the basis of which a petition for divorce could be presented by either the husband or the wife. The said grounds are, (i) that after the solemnization of the marriage, the other party had voluntarily sexual intercourse with any person other than his or her spouse; (ii) had treated the petitioner with cruelty; (iii) had deserted the petitioner for a continuous period of not less than two years; (iv) had ceased to be a Hindu by conversion to another religion; (v) had been incurably to be of unsound mind, or had been suffering from continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner could not reasonably be expected to live with respondent; (vi) had been suffering from venereal disease in a communicable form; (vii) had renounced the world by entering any religious order; (viii) had not been heard of as being alive for a period of seven year or more by those persons who would naturally have heard of it, had that party been alive.

In addition to the above said grounds, some grounds for obtaining a divorce decree have also been conferred exclusively upon a wife with which we are not concerned in the present write up.

It is well settled that no decree of divorce under the Act can be rendered in favour of a party unless any of the specific grounds laid down in Section 13 of the Act is pleaded and proved. Even in cases where the opposite party does not come forward to contest the claim then also the courts seized of the matter have to assess the evidence on merits and then to render the judgment.

Of late, on account of social changes there are broken marriages to such an extent that reunion of the parties is virtually not possible. In legal terminology such a situation is termed as “irretrievable break down of marriage”. However, under the scheme of the Act, no decree of divorce can be passed on this ground by observing that marriage between the parties had irretrievably broken down. The Apex Court, however, resorts to this course by exercising its extraordinary powers under Article 142 of the Constitution of India whereunder it is laid down that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause. This extraordinary power under this Article is meant to supplement the existing legal framework- to do complete justice between the parties- and not to supplant it. It is not restricted by statutory enactments but should be sparingly used and cannot be used where the issue can be settled only through substantive provisions of a statute. Any limited interpretation of the expression “cause or matter” would stultify the constitutional powers of the Apex Court. The Apex Court has rightly observed in some cases that it was advisable to leave this power undefined and uncatalogued so that there was elasticity enough to be mould any situation in any case.

In Sandhya Rani v. Kalyanram Narayaran (1994) Supp 2 SCC 588, the Supreme Court took the view that the parties were residing separately for the last more than 3 years and it had no doubt that marriage between them had irretrievably broken down. For this reason a decree of divorce was granted. Again same view was reiterated in Chanderkala Menon v. Vipin Menon 1993(2) SCC 6, where the parties were residing separately for the last many years and there was no chance of their reunion. In Kansal Devi v. Vinod Kumar Mittal (1996) 8 SCC 90, the parties were residing separately for last more than 10 years and the Hon’ble court reached the conclusion that marriage between them had irretrievably broken down. This very view was taken also in Naveen Kohli v. Neelu Kohli 2006(4) SCC 558 in which, besides the irretrievable break down of marriage, there were other issue of mental and physical cruelty.

However, in some cases, of late, the High Courts have also started granting decrees of divorce on the ground that marriage between the parties had since broken down irretrievably. For instance in a case reported as Parminder Kaur v. Gurpreet Singh 2022(4) RCR (Civil) 939, a Division Bench of the High Court of Punjab & Haryana granted a decree of divorce by observing that the parties were residing separately for 17 years and that the relationship between them had broken down beyond repairs. Again a Division Bench of the Hon’ble High Court of Punjab & Haryana granted a decree of divorce in a case reported a Ratandeep Singh Ahuja v. Harpreet Kaur 2022(4) RCR (Civil) 996 by observing that there were irreconcilable differences between the parties which had rendered the marriage, as of today, a mere legal fiction. Of course, there were some other grounds of cruelty etc also in the case. In Maheep Singh v. Loveleen Kaur 2023(1) RCR (Civil) 15, again a similar view was taken by observing that the parties were residing separately for the last about 10 years. Again same approach was adopted in Karanjit Singh v. Devender Kaur 2023(1) RCR (Civil) 1. It is note-worthy that in the said judgment the Hon’ble High Court observed also that power to grant a decree of divorce on the ground that the marriage had irretrievably broken down, of course, was of the Apex Court via Article 142 of the Constitution of India.

In this manner it is discernable that the High Courts have also started granting decree of divorce on the ground that marriage between the parties had gone beyond repairs or had irretrievably broken down.

This writer has also noted that in some of the Family Courts in districts also marriages are being dissolved on this very ground. In this manner, power of the Apex Court is being used in a mild manner at present in district courts and as also at the level of the High Courts, which may turn into a regular practice in times to come. I do not know whether it is due to lack of studies or the courts at the lower level are clogged with a large number of cases which they are not able to decide. Today at district levels, on account of heavy rush of work or on account of lack of work culture on the part of the advocates and the judges, adjournment is the rule and actual work on the case file is an exception. Its result is that no contested case under Section 13 of the Act can be decided in less than 5-10 years. If after completing this period the courts start granting decrees of divorce by observing that the parties were residing separately for the last many years and there were no chances of their reunion, then the concept of sanskara, which is the bedrock of a Hindu marriage, will be given a silent burial. It is also note-worthy that simply because 7-10 years had passed since separation of the spouses should not be a ground of divorce, specially when one of the spouses is clearly on the wrong side. It is also laid down under Section 23 of the Act that no party should be permitted to take advantage of his or her own wrong.

In M. Venkateshwaherlu v. M. Pushpalatha, 2023(1) RCR (Civil) 509, while granting a decree of divorce on the ground that marriage had since irretrievably broken down, the Apex Court observed categorically that the said power was being exercised by it under Article 142 of the Constitution of India and further that no other courts were entitled to invoke the said power.

It is, therefore, hoped that the High Courts and the District Family Courts should not resort to passing of decrees of divorce only on the ground that the marriage between the parties had since irretrievably broken down. They should not eat into the teak wood of the concept of sanskara like termites. It is for the parliament to amend the Act further if required.

]]> https://lawfinderblog.com/high-court-and-district-family-courts-giving-burial-to-sacraments-sanskara-of-marriage-institution-in-hindus/feed/ 2 https://lawfinderblog.com/now-time-for-diagnosis-of-the-ills-of-subordinate-judiciary/?utm_source=rss&utm_medium=rss&utm_campaign=now-time-for-diagnosis-of-the-ills-of-subordinate-judiciary https://lawfinderblog.com/now-time-for-diagnosis-of-the-ills-of-subordinate-judiciary/#respond Thu, 21 Jan 2021 07:25:42 +0000 https://lawfinderblog.com/?p=3915 The judges and the jurists of the country, and as also the print media, often make mo...]]>

The judges and the jurists of the country, and as also the print media, often make mountain of a mole hill in the matter of exercise of Public Interest Litigation jurisdiction by the judges of the higher courts. The same is much ado about nothing when there is no dispute that the power of judicial review over the functioning of the Executive and the Legislature for enforcing the fundamental and other rights of the citizenry under our constitution vests in the judiciary. So while discharging the said responsibility, the judiciary is bound to cause some aberrations here and there. It is neither possible and nor expedient to lay down the so called Lakshman Rekha.

Need of the time now is for appropriate diagnosis of the ills of the subordinate judiciary as the masses come only in the contact of subordinate judiciary where the litigant population is generally feeling oppressed, depressed, suppressed and compressed. The entire system is lying paralysed metabolically and mentally. About 3.5 crores of cases are now said to be pending in the subordinate courts. Under the burden of such a huge backlog of cases the entire system of subordinate judiciary is virtually choked. Hitherto there have been only casual correctives by the peers at the helm of affairs without any proper investigation into the causes of malfunctioning of subordinate courts.

As a right minded citizen and as an extinguished ex-participant in the system, I cannot help but remark that while such like occasional correctives by the peers may be well intentioned but the same are certainly not adequate and not likely to fulfill the desired objectives till the diagnosis of the ills of judicial system is properly done. Drowned under the weight of heavy docket of work and other reasons which are in legion, the Judges of the Apex and the High Courts perhaps do no have the time to realise the gravity of inefficiency syndrome in the lower judiciary which is eating into its vitals even more than the element of corruption. The Judges occasionally chant the mantra that the only problem in the rungs of the subordinate judiciary is of the pendency of a large number of cases for which increase in the number of subordinate courts is almost invariably suggested as a panacea.

The above said approach is only casual and cannot cure the ills. In Punjab and Haryana subordinate courts, of which I have a personal experience of 47 years, both as an ex-judicial officer and now as an advocate, there is no dearth of first appellate courts and the courts of civil judges-cum-magistrates and the infrastructure for the last about one decade but the working is still fast deteriorating because of changed work culture.

Earlier, only a decade back, practically all the presiding officers of the first appellate courts used to give dictation of evidence in all cases themselves but now the said practice has been almost given a complete go bye and the resultant effect is that there is no control over the proceedings which go unregulated. Most of the Sessions Judges do not record statements of the accused under section 313 of the Code of Criminal Procedure properly as the Public Prosecutors frame the questions and answers thereto are dictated by the defence counsel flouting the very purpose of recording such statements. In most of the courts judgments/orders are not pronounced on the stipulated dates and later on the orders are manipulated by showing as if the said orders were pronounced within the stipulated period of 7 days of hearing arguments and within 15 days of conclusion of evidence. Hardly three or four bail applications in a day are assigned to each court and even the said bail applications are some time not disposed of on the same day. There is no capacity of giving dictation of even a few simple and short sentences in the open court. This may be because of twin reasons i.e. either there is no capacity to dictate the orders in the open court or the presiding officers shun the dictation in the open court apprehending interference from the counsel appearing before them.

In the Matrimonial courts and as also before the Accident Claim Tribunals, evidence is being recorded not by the officers or even by the steno typists. The said evidence is being recorded by advocates as local commissioners and the manner of recording of evidence is most shabby. One cannot find even three sentences consecutively in the deposition of the witnesses recorded in this manner in which there are not 2-3 mistakes which is disgusting and gives such a shabby and poor impression about the working that the same is nauseating.

At the level of the magistracy a sort of fish market is created in most of the courts where evidence is being recorded at 2-3 places in criminal cases simultaneously by the court staff without any effective, nay even the remote, supervision of the presiding officers.

On civil side the legislature amended the Code of Civil Procedure, 1908 recently by prescribing that examination-in-chief of the witnesses will be by way of affidavits so that precious time of the courts was saved. The said amendment is nullified virtually by the entire subordinate judiciary by obtaining affidavits of witnesses on one date and then adjourning the case to some other date for cross-examination of the witnesses which is causing an acute hardship and inconvenience to the witnesses who are compelled to come to courts even more than twice for the same purpose. Primarily lawyers are responsible for this malady as they take the stand that they had not gone through the affidavits of the witnesses as the same were supplied to them on that very date. Further in the amended Code of Civil Procedure, at the most three adjournments are permitted to a party to lead its evidence in support of its cause but after conclusion of evidence, in most of the cases, numerous adjournments are being granted for leading rebuttal evidence and for addressing arguments as neither the advocates are ready for addressing arguments soon after the conclusion of evidence and nor the presiding officers are willing to hear arguments.

Judges of the Apex and the High Courts have shown serious concern on occasions regarding the malady of the winning over of the witnesses by the accused specially in heinous offences. This echo is but natural. But the dignitaries do not realise the diamond hard stark reality that instances are not lacking where the subordinate judiciary itself is a contributory to this malady. In some courts even sessions trials are being adjourned just on the asking of unscrupulous advocates till the inconvenient witnesses come round. I have a personal experience of appearing in a sessions trial in one of the courts in Haryana where a complainant in a sessions case did not appear consecutively for more than 15 hearings even though every time he was outside the court premises. He was insisting for payment of money to him. I personally apprised the judge concerned about the situation but he pleaded helplessness by stating that he could not do anything when the witness was not before him. Subsequently, when the said trial came to be transferred on the file of the Hon’ble Sessions Judge in routine then the matter was brought to his notice and this time the Sessions Judge took umbrage and called that witness from outside the court premises by sending his Naib Court and then only statement of the said witness could be recorded. In yet another murder case in Haryana, the defence counsel got adjourned the sessions trial on three dates so that he could manage compromise between the parties. When I, as a counsel for the complainant, protested on the fourth adjournment and requested for a short adjournment then in the open court the said advocate had even the audacity of stating within the hearing of the judge that before the next short date I myself could be killed. The Hon’ble Judge had not guts to initiate proceedings for contempt of court against the said advocate. Next day when I submitted application for initiating contempt of court proceedings in the said matter then the same was returned by telling me that I myself could move the said complaint for initiating contempt of court proceedings before the High Court.

Concern regarding the low rate of conviction in cases is also not entirely correct. The public perception in this direction is blurred by media hype. People, and even the Hon’ble Judges, are failing to discern that the penal provisions of dowry deaths and dowry related cases are generally being misused by the complainants. Even in most of the cases complaining rape, where victims are more than 18 years of age, the allegations of rape are on the face of them false. Police is also registering a large number of false cases under sections 399 and 402 IPC. In the dowry related and false rape cases the accused are being blackmailed and when they pay money to the complainants then the matters are settled and the cases go in acquittal with the resiling of witnesses.

Again the common and general perception today is that an accused is a devil and the complainants are poor victims. Even this projection needs correction. Instances are not uncommon when even innocent persons have to languish in jails for considerable periods without there being even semblance of evidence because of unwarranted dismissal of their bail applications and unwarranted convictions. Personal uncodified formulas have been evolved even at the High Court levels that sentences of those who have been awarded imprisonment by the trial courts for a period exceeding three years, will be suspended only after the convict first undergoes one fourth of the sentence imposed even though there may not be the slightest evidence against them. Then in some cases even this formula is not adhered to.

The height of inefficiency and bankruptcy of mind will be evident to the readers if I am permitted to quote 3-4 instances in which I myself had been the counsel. In one case the High Court had directed the Additional Sessions Judge to grant exemption to the accused on an application being moved before him on such terms and conditions as deemed appropriate. When application was moved the learned Additional Sessions Judge complied with the High Court order by giving direction “that the said accused was to attend the court in person at the stage of framing of charge, during recording of evidence of the prosecution, recording of the statements under section 313 Cr.P.C., at the time of hearing arguments, and, of course, at the time of judgment”. The readers will wonder as to what dates were left out on which the accused was not to appear! In one more case the petitioner-husband failed to pay interim maintenance ordered against him in matrimonial proceedings under section 13 of Hindu Marriage Act, 1955 on the date when the case was fixed for recording his evidence. Instead of debarring the husband from proceeding with the case the Additional District Judge sent him behind bars without there being any execution petition from the side of the wife. It was observed that these powers were being exercised under Section 125 (3) of Code of Criminal Procedure, 1973. In yet another case, there were allegations against some police officials that they had fired shots upon an innocent citizen when he refused to cough up money on their demand which resulted into his instant death. The police came out with the counter version that they had simply given signal for stopping but there was firing upon the police party and the police party had to retaliate in defence. It was thus not the case of any of the two parties that the citizen died because of rash and negligent firing by the police. However, the learned Additional Sessions Judge framed charge under Section 304-A IPC which covers death by rash and negligent acts. The said Additional Sessions Judge even refused to rectify the charge when appropriate application was moved under Section 216 of the Code of Criminal Procedure. I refrain from quoting more instances showing total non-application of mind in the cases by the subordinate judiciary.

For the inefficiency syndrome there is liability of the Bar also as without effective assistance of the counsel representing the case there cannot be proper and effective verdict. One is lucky today if he gets a correct verdict in his cause. Justice is the psychological yearning of every human being and yet one has to depend upon his stars for a correct verdict. And let me hasten to clarify that corruption and workload are not the only causes behind this malady.

Oliver Wendell Holmes Jr. once remarked, “This is a court of law, Youngman, not a court of justice”. The underlying sarcasm in this barb should generate and fuel the impulse of law courts and the advocates to turn the law courts into courts of justice.

In the words of Addison, “To be perfectly just is an attribute of the divine nature; to be so to the utmost of our abilities is the glory of man”. It is this spirit which must motivate the Bar and the Judiciary to strive to realize its full potential and convert it into kinetic energy.

Legal fraternity has a great responsibility to ensure the process to achieve the true object of justice to all. The Judges have a duty to perform which is more onerous to keep the judicial ship afloat on even keel.

Sensitivity to all that we perceive, proper storage of all materials, intelligent docketing and developing the right impulses by training of the mind are sure to help in the development of perception needed to dispense justice according to law. The process is ongoing in everyone, but a conscious effort to develop the proper perception is the need. The ideal is difficult to achieve but the duties of the public oblige us to do our best.

Role of our Apex Court in the matter of interpretation of our Constitution through various judgments right from day one has been very exemplary, splendid, and laudable right from day one which can dumbfound the best of the jurists in the world.

Hardly had the ink on the papers of our Constitution dried that a large number of matters erupted in which constitutionality of various enactments passed by the Legislatures came under challenge. With great erudition, statesmanship, precocity, detachment and vision, the Judges of the Apex Court laid down the basic fundamentals of interpretation as under:-

(a) A court of law must gather the spirit of Constitution from the language used, and what one must believe to be the spirit of the Constitution cannot prevail if not supported by the language vide Keshavan v. State (AIR 1951 SC 128). Where the Constitution has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, the courts cannot limit them upon any notion of the spirit of the Constitution vide A.K. Gopalan v. State (AIR 1950 SC 27);

(b) Presumption is always in favour of the constitutionality of an enactment unless shown that there has been a clear transgression of the constitutional principles vide Chiranjit Lal Chaudhary v. Union of India (AIR 1951 SC 41) which was reiterated in several cases including the one in Madhu Limaye v. SDM Monghyr (AIR 1971 SC 2486);

(c) Under our Constitution an enactment can be annulled being ultra vires of the Constitution only when it is proved that the Legislature had enacted the law without there being the source of power in this regard in the Constitution, or that the said enactment was against the express provisions of the Constitution;

(d) Article 14 of our Constitution states that “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

However, we must know that men are unequal; consequently a right conferred on persons that they shall not be denied the “equal protection of laws” cannot mean the protection of the same laws for all. It is here that the doctrine of classification steps in, and gives content and significance to the guarantee of the equal protection of the laws for all persons similarly situated. However, such a classification will be permissible only when the same satisfied two conditions namely, (i) it must be founded upon intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) the said differentia must have a rational relation to the object sought to be achieved by the statute in question vide Budhan Chodhary v. State of Bihar 1956(1) SCR 1045; and Ram Krishan Dalmia v. Justice S.R. Tendolkar (1959 SCR 279).

Our Apex Court had been discharging the functions of adjudicating the constitutionality of various statutes very smoothly and consistently on the above said guidelines till the years 1973-74 where after judicial activism took the centre stage and the Hon’ble Judges started vying with each other in projecting themselves as the vanguards and champions of personal liberty of the citizens by using very literary and ornamental language in their judgments which has resulted into transgression by the Judiciary in the field of Legislatures many a time. Of late, the Apex Court has coined two doctrines for judicial review namely, `constitutional morality’ and `manifest arbitrariness’ since the year 1974 onwards.

Dr. B.R. Ambedkar, the chief architect of our Constitution, had advocated the concept of `constitutional morality’ by describing it as a beacon light which helps to preserve the faith and trust in the constitutional courts. The same was considered indispensable and effective for coordinating the conflicting interests of different people as any powerful and obstinate minority might render the working of the free institutions impracticable, without being strong enough to conquer ascendance for themselves.

Stray references to the phrase `constitutional morality’ can be found in some decisions of the Supreme Court of India. In the famous decision in Kesavananda Bharati (AIR 1973 SC 1461) two of the Judges had made a casual reference of this phrase. Then in the year 1981 in S.P. Gupta v. Union of India (1981 Supp. SCC 87), it was remarked by Venkataramiah J that violation of a constitutional convention would “be a serious breach of constitutional morality”. Then Chief Justice A.P. Shah of Delhi High Court in Naz Foundation v. Government of NCT declared Section 377 IPC unconstitutional to the extent it criminalized consensual acts between two adults in private. Stand of the Union of India that the provision was based upon `public morality’ was discarded by the court by observing that constitutional morality must outweigh the argument of public morality, even if it was the majoritarian view. Then came the famous `Triple Talaq Case’ of Shayara Bano v. Union of India (2017) 9 SCC 1, where our Apex Court laid considerable emphasis in explaining the concept of constitutional morality. The court held that constitutional morality meant `the morality that has inherent elements in the constitutional norms and conscience of the Constitution’. One of the judges (Justice D.Y. Chandrachud) stated that the concept of constitutional morality did not mean only allegiance to the substantive provisions and principles of the Constitution, but signified a constitutional culture which each individual in a democracy must imbibe. Chief Justice Dipak Misra held that the term `constitutional morality’ embraced within itself values such as that of ushering a pluralistic and inclusive society and that the concept of constitutional morality `would serve as an aid for the courts to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be’. In Sabrimala Temple case, where entry to the females from 10 to 50 years of age was prohibited, the said convention was discarded by the Judges of the Supreme Court vide judgment dated 28.9.2018 by stating, inter-alia, that the same was also against the constitutional morality.

The other implement being used by the Apex Court in deciding the constitutionality of various enactments is `manifest arbitrariness’ by using which various enactments have been struck down as being manifestly arbitrary. This tool has germinated from Article 14 of our Constitution which proclaims from housetop equality before the law.

The doctrine of `manifest arbitrariness’ was evolved for the first time in E.P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555) and subsequently in Maneka Gandhi v. Union of India (1978) 2 SCR 621, and Ajay Hasia v. Khalid Mujib (AIR 1981 SC 487) where the Apex Court observed, inter-alia, that content and reach of the right to equality under Article 14 should not be subjected to a narrow, pedantic or lexicographic approach and no attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. It was further observed that equality was a dynamic concept with many aspects and dimensions and it could not be imprisoned within traditional and doctrinaire limits. Article 14 was striking at arbitrariness in state action and ensured fairness and equality of treatment. Article 14 embodied a guarantee against arbitrariness… and (equality) cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits.

The aforesaid doctrine of manifest arbitrariness has now been invoked in two judgments by the Apex Court which pertained to post constitutional laws namely, Hindustan Construction v. Union of India (2019) SCC Online 19 SC 1520; and Committee of Creditors of Essar Steel v. Satish Kumar Gupta 2019 SCC Online 1478) decided on 15.11.2019. In Hindustan Construction case The Arbitration and Conciliation Act, 1996 was amended by Amendment Act of 2015 where-under it was provided that if a party required a stay against the award then the court could impose the condition of depositing the amount in question or part thereof. Various High Courts in the country had given diverse opinions regarding the applicability of the said condition of pre-deposit to pending proceedings. The Supreme Court ruled in some judgment that this condition will be applicable even to arbitral proceedings which were pending on 23.10.2015. By the Arbitration and Conciliation (Amendment) Act, 2019, the Parliament enacted that the requirement of pre-deposit of the amount will not be applicable to arbitral proceedings which were pending on 23.10.2015. The said Amendment Act of 2019 struck down by the Apex Court being manifestly arbitrary. In Committee of Creditors of Essar Steel case supra, one of the issue before the Apex Court was whether the mandatory period of 330 days laid down for completion of entire corporate resolution process in the context of Sections 4 and 6 of Insolvency and Bankruptcy Amendment Act, 2019 was mandatory. The Apex Court ruled that the same was manifestly arbitrary as the Legislature had acted capriciously and irrationally.

Through these techniques the Apex Court gradually has usurped the power of appointment of the Judges of the High Courts and the Supreme Court. The earlier judgment in S.P. Gupta v. Union of India (known as 1st Judges case) (1981) Suppl. SCC 87 was overruled in Supreme Court Advocates on Record Association case (known as 2nd Judges case) (1993) 4 SCC 411 by holding that in the matter of appointment to the higher judiciary, the Chief Justice of India will have primacy and in the case of difference of opinion between the Central Government and the Chief Justice of India, the opinion of the CJI will prevail. Thereafter, in Special Reference No.1 (known as 3rd Judges case) (1998) 7 SCC 739, the Apex Court laid the foundation of the collegiums consisting of the CJI and four senior most Judges in the case of appointment to the Supreme Court, and CJI and two senior most Judges in the case of appointment to the High Court. After a long wait and due consideration, finally the Parliament passed the Constitution (99th Amendment) Act and National Judicial Appointments Commission Act, 2014 providing for constitution of a Commission for the said purpose. The Commission was to consist of six members, with CJI as the Chairman. Other members were two senior Judges of the Supreme Court, Union Law Minister and two eminent persons to be selected by the committee consisting of CJI, Prime Minister and the Leader of Opposition. In the case of appointment to the High Courts, the views of the Governor, Chief Justice of the High Court and the Chief Minister were also to be obtained. Even such a reasonable legislation was struck down in the case of Supreme Court Advocates on Record Association v. Union of India by a majority of 4-1.

Although the Judges of the Supreme Court have been proclaiming from the housetop day in and day out that they are performing their duty with vision, dispassionate approach and distinguishable detachment, but in my humble opinion both the doctrines of `constitutional morality’ and `manifest arbitrariness’ are vague and imprecise and invocation thereof has created a mess and uncertainty in the field of law. One is left guessing as to the exact identity of the constituent facets. There is no method of predicting their effect on any legal or constitutional issues which is not conducive for orderly governance in the country. The traditional touchstone for adjudicating on the principle that there was presumption towards the constitutionality of a statute and that a statute could be struck down only when there was lack of legislative competence or violation of fundamental rights or any provision of the Constitution should not have been deviated from. It is noteworthy that this principle was also invoked even after the doctrines of `manifest arbitrariness’ and `constitutional morality’ had been running in full swing in State of Andhra Pradesh v. Mc Dowell & Co. (1996) 3 SCC 709. The said judgment in Mc Dowell case was again discarded by a Constitutional Bench of the Apex Court by dubbing it as judgment in percurium.

The Hon’ble Judges of the Apex Court should consider the relationship between arbitrary and discretionary power. Conferment of wide discretionary powers is, broadly speaking, an admission that it is not possible to lay down rules for the exercise of that power. An example may be picked up from Indian Penal Code which lays down (with rare exceptions where a particular sentence must be imposed) the maximum punishment by way of fine and/or imprisonment which can be inflicted on persons found guilty of committing specified offences. A discretion conferred upon judges and magistrates ranging from a small fine to substantial fine together with the maximum term of imprisonment prescribed by law can only be described as arbitrary, for no rules and guidelines can be given for the exercise of the discretionary power. If the conferment of such a power violates Article 14, all punishments prescribed by the Penal Code will be void according to the tests laid down by the newly fashioned doctrines by the Judges of the Apex Court. The judges must realize when a law based upon impermissible classification is struck down for violating the equal protection of the laws that does not involve a finding that the law is “arbitrary”. Very highly trained and independent judges can also hold different views as is evident from their dissenting judgments in various cases.

Various enactments have been set aside by dubbing the same as arbitrary and discriminatory without any sound logic or rationale, e.g. in East Punjab Urban Rent Restriction Act, 1949 the provision for eviction of tenants on the ground of personal necessity of the buildings given on rent was applicable only upon residential buildings. The Apex Court in Harbilas Rai Bansal v. State of Punjab (1996-1 PLR 227) held that this classification was irrational and directed that the commercial buildings given on rent could also be got vacated on the ground of personal necessity of the landlord. The Hon’ble Judges failed to discern that there was a logic behind the said classification as the stability of trade and commerce required protection against eviction of tenants from commercial premises. The Judges ought to have realized that presumption of constitutionality assumed that the Legislature correctly understands and appreciates the needs and problems of its own people vide State of Bombay v. F.N. Balsara (1951 SCR 682); R.K. Garg v. Union of India (AIR 1981 SC 2138). Equally, what arbitrariness or manifest arbitrariness was involved in the two cases of Hindustan Construction, and Committee of Creditors of Essar Steel (supra) is not intelligible.

The doctrine of `constitutional morality’ is equally vague and imprecise. The Naz Foundation case in which Delhi High Court had decriminalized Section 377 IPC by invoking the said doctrine was not approved by two Hon’ble Judges of the Apex Court in Suresh Kumar Koushal v. Naz Foundation 2014(1) RCR (Criminal) 286, meaning thereby that the two said Judges did not approve of the said doctrine. Further, in Triple Talaq case of Shayara Bano also there was no unanimity of the Judges on these principles. Two out of the five Judges namely, Chief Justice J.S. Khehar and Abdul Nazeer did not hold that the personal law of triple talaq was liable to be struck down on any of these two doctrines. Again in Sabrimala Temple entry case one of the Judges (Indu Malhotra J) did not hold the practice of ban on entry of women between 10-50 years of age was unconstitutional on either of these two grounds by observing that morality meant different to different persons in our pleural society. In this manner when there is no unanimity regarding the concept of `constitutional morality’ even amongst the Judges of the Apex Court, there is no justification for invoking the same while adjudicating constitutionality of the enactments passed by the Legislature. Let me hasten to add here that the Patna High Court, in the year 1985, held in Yugal Kishore Singh v. State of Bihar (AIR 1985 SC 265) that the powers of judicial review were restricted because of `constitutional morality’ to honour and respect the legislature’s wisdom.

These rhetoric doctrines have ignored the concepts of separation of powers and of checks and balances upon which our constitutional edifice is pinned down. The same are likely to lead to strange and chaotic consequences by destroying the symmetry of our beautifully crafted Constitution. The Hon’ble Judges should rest their judgments on sounder and firm principles instead of being swayed away by rhetoric. A prolific writer of French Renaissance namely, Michel Do Montaigne had wisely stated, “No matter we may mount on stilts, we must walk on our own legs. And on the highest throne in the world, we still sit only on our bottom!”.

The Apex Court is transgressing and intruding in the legislative field gradually like Arabian camel in the tent of the trader as is the fable that you must have heard from your grand parents. They are biting more than they can chew. It is time that the Hon’ble Judges should keep restraint. The Legislature should also take timely steps for the protection of its edifice. Unfortunately, the legislators are lying dormant and asleep. May be because they are always involved in politicking and toppling the governments of each other and have hardly any time for these aspects.

Democracy had three pillars namely, legislature, executive and judiciary till about the last three decades. But with the passage of time people perhaps felt that democracy was unstable with three legs and accordingly they evolved the freedom of speech and expression through media as the fourth pillar. The increased role of the media in today’s globalized and tech-savvy world was aptly projected by Justice Learned Hand of United States when he said, “The hand that rules the press, radio, the screen, and far spread magazines, rules the country”.

TV channels, in a bid to increase their TRPs (Television Rating Points) are resorting to sensational journalism with a view to get competitive edge over the others. Today trials by media is the impact of TV and newspaper coverage. Our `Media Studios’ have virtually turned to be courtrooms for all intents and purposes. Facts of the cases in all their lurid details, full particulars – whether correct or otherwise – the various steps and stages of investigation of the case, freely embroidered with personal and motivated comments and observations, are being presented, evidence discussed, experts opinions sought, and even the public is being given opportunity to participate in the process. Public is asked to send their views by SMS or by logging on the websites of channels. The conclusions tend either to pronounce on the guilt of certain persons or on the motives of the investigators. A sort of parallel adjudicatory system has been erected by the media personnel which is plain megalomania.

In recent times there have been numerous instances of conduction of trials against the accused and of passing verdicts against them before the concerned courts passed their judgments. Some of the instances are Priyadarshni Mattoo case, Jessica Lal case, Nitish Katara murder case, Bijal Joshi rape case and Aarushi Talwar murder case. Currently, during the last about three weeks all the TV channels are engrossed in the media trial of Sushant Rajput case. Almost fifty percent time of all the TV channels is being spent on this case which has a deafening effect on our ears. It appears that our country has no other problem except discussing this case.

Although the term `media trial’ is a recently coined phrase, the idea that popular media can have a strong influence goes back certainly to the advent of the printing press and perhaps much beyond.

In the recent past in the famous trial of US in O.J. Simpson, despite the acquittal of the accused O.J. Simpson by the court there, the promotion of the media coverage in the public mind was raised above the status of the court.

Often the press coverage can be said to reflect the views of the person in the street. However, great impact of media projection of the cases requires greater responsibility on the media. Problem is where media covers extremely sub-judice matters clearly prejudicial to the interest of the one party or the other.

About the impact of press coverage and its importance Venkataramiah J. of our Supreme Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641, had stated –

“Freedom of press is the heart of our social and political intercourse. The press has now assumed the role of public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions about which a democratic electorate (Government) cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities”.

The above statement of the Supreme Court illustrates that freedom of press is essential for the proper functioning of our democratic process. Freedom of press extends to engaging in uninhabited debate about the movement of public figures and important events.

However, trial by media has created a problem as it is a sort of tug of war between two conflicting principles, i.e. free press and free trial. Public is vitally interested in both of these issues. At the same time, “Right to Fair Trial” has to be uninfluenced by any kind of extraneous considerations or pressures. The media, therefore, cannot be permitted to exceed its right by publications that are prejudicial to a suspect or the accused involved in the case. Then every accused, under our adjudicatory system has the right to legal representation by a counsel of his own choice. Some times the media creates such a hype that for an ordinary advocate it becomes difficult and embarrassing to defend an accused upon whom a lot of mud is slung by adverse media coverage. The readers must be remembering that in Jessica Lal murder case the accused Manu Sharma was being defended by the eminent criminal lawyer Sh. Ram Jethmalani and the TV channel CNN had the audacity to confront him with the suggestion that he was defending unwarranted cause.

Fetters have, therefore, to be put on the rights of the press and the electronic media in the conduction of media trials. The ever increasing tendency to use media while the matter is sub-judice has been frowned upon by the Apex Court in several cases. In State of Maharashtra v. Rajendra Jawanmal Gandhi 1997(8) SCC 386, it was observed –

“There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and he is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law”.

Again in M.P. Lohia v. State of West Bengal (AIR 2005 SC 791), the Apex Court castigated the conduct of the press in publishing the interview of the family of the deceased during the pendency of the anticipatory bail application of the accused in the High Court of Calcutta and the special leave petition before it.

Importance of the freedom of press in parliamentary democracy has been time and again recognized, stated, re-stated, and confirmed by the Superior Courts of our country despite the fact that Article 19(1)(a) of our Constitution does not contain any specific enumeration of this freedom. As early as in Romesh Thappar v. State of Madras (AIR 1950 SC 124), the Apex Court had struck down the ban imposed by the Government of Madras on the entry and circulation of the journal, Cross Roads, which was printed and published by the petitioner. The Apex Court held that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 was violative of Article 19(1)(a) and did not fall within the ambit of any of the exceptions specified in Article 19(2). The court held that nothing short of a danger to the foundations of the State or a threat to its overthrow could justify the curtailment of the right of freedom of speech and expression.

In LIC v. Manubhai D. Shah (AIR 1993 SC 171), the Apex Court observed, inter-alia, that freedom of speech and expression was a natural right which a human being acquired on birth. The words `freedom of speech and expression’ had to be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities. The said words, therefore, included the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. The Apex Court even went to the extent that the right of freedom of speech and expression also included to answer the criticism levelled against one’s views by a rejoinder through print media or electronic media where the publisher was the State or its instrumentality.

In the circumstances a balance has to be struck by the Parliament and the judiciary to reconcile the freedom of speech and expression to be exercised by the media with the individual rights of the accused persons who are facing or likely to face trials in cases. In Rajender Sail v. M.P. High Court Bar Association and others (2005) 6 SCC 109, it was observed by our Top Court that for rule of law and orderly society, a free responsible press an independent judiciary were both indispensable and both had to be, therefore, protected.

It will be appropriate that where litigation is pending before a court of law, then no one should comment upon it in such a manner that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influence on the judge or by prejudicing the witnesses etc. If there is violation of this rule then the same should be taken seriously and the person concerned should be hauled up for the action of contempt of court. The parties have a constitutional right to have a fair trial in the court of law, by an impartial tribunal, uninfluenced by media reports. This does not mean that the media cannot report on the events pending investigation or trial of the cases. The media should keep a restraint by reporting the events in an impartial manner without any kind of embroidery. A lie, if repeated several times, acquires the status of truth in the eyes of a common man. This expression was coined by Adolf Hitler when he dictated his 1925 book Mein Kampf, about the use of a lie so `colossal’ that no one would believe that someone could have the impudence to distort the truth so infamously. The judges trying a case are after all human beings and they can also be swayed away by the propaganda and hype created by the media in parallel trials.

A meeting of the group of about 40 legal experts and media representatives convened by the International Commission of Jurists (ICJ) at its Centre for the Independence of Judges and Lawyers (CILJ), and the Spanish Committee of UNICEF had met in January 1994 at Madrid in Spain with the objectives of examining the relationship between the media and the judicial independence as guaranteed by the 1985 UN principles on the independence of judiciary and for formulating the principles addressing the relationship between freedom of expression and judicial independence. After a long debate it was concluded that the function and right of media were to gather and convey information to the public and to comment on the administration of justice, including the cases before, during and after trial but without violating the presumption of innocence. These principles must be got observed from the press or TV channels indulged in media trials in our country and if there is any violation then the same should be taken note of seriously and punished for commission of contempt of court. For the said purpose the Contempt of Courts Act, 1971 should be modified to include within its ambit even the media trials of investigations before the actual trial before the courts. Our Apex Court should lay down specific and detailed guidelines in this regard to be followed by the media.

Further our Parliament may put by appropriate legislation some fetters upon the rights of media for curtailing the misuse of freedom of press via motivated media trials. Some jurists in our country are of the view that the freedom of speech and expression under Article 19(1)(a) of our Constitution can be controlled by reasonable restrictions under Article 19(2) which reads as under –

“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, to prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the States, friendly relations with foreign States, public order, decency, or in relation to contempt of court, defamation or incitement of an offence”.

The said jurists advance the argument that no reasonable restrictions are thus possible by legislation as the same will not be within the ambit of Article 19(2) of our Constitution.

It is humbly submitted that the Parliament can put fetters against irresponsible indulgence by the media in media trials under Article 19(2) by amending the provisions of Contempt of Courts Act, 1971 so as to bring within its sweep the cases in which trials have not commenced but may commence in future. Further there can be restrictions on right of freedom of speech and expression for inculcating decency or morality under Article 19(2). Further the Parliament will be clearly within legislative competence if it imposes restrictions on media against motivated media trials as such restrictions will clearly fall within the ambit of `decency’ or `morality’ for safeguarding the valuable rights of the accused persons for an impartial trial by competent courts of law without being in any manner affected by the adverse impacts of media propaganda.

Media no doubt forms the backbone of our democratic setup. It subjects all the institutions to public scrutiny and makes them answerable to the public to whom they are to serve. However, the media cannot be permitted to trample over the rights of the accused persons by resorting to irresponsible media trials. A responsible media should act as the handmaiden of effective judicial system in the country which will be the real service for the country.

Eclipse Of Rule Of Law In The Aftermath Of The Police Encounters Of The Gangster Vikas Dubey And His Allies – Now Imperative Upon The Apex Court, Human Rights Commissions, Parliamentarians And The Intelligentsia To Bring The System Back On Rails

The entire country was shell shocked in the early morning of July 3, 2020 when it transpired that in the area of Kanpur district in UP, the gangster one Vikas Dubey and his hoodlums killed eight members of the police party, headed by the Deputy Superintendent of Police, by indiscriminate firing when the said posse of police party had gone to nab Vikas Dubey who was a history sheeter wanted in dozens of murder, dacoity and extortion cases. Acute indignation was thus but natural and specially in the police force of UP state.

The police force of UP state then resolved to nab the culprits within days by any and all means. Just on the next day house of the dreaded Vikas Dubey was demolished by cranes and bulldozers which scene was displayed on television. Nobody questioned as to under what procedure or authority the said demolition was carried out.

The matter did not stop at that. Various groups of police parties swung into action to round up the culprit Vikas Dubey and his allies. Between 3rd of July to 9th of July five bodyguards or allies of Vikas Dubey were shown killed in different police encounters at different places. Finally, Vikas Dubey surrendered in the area of Ujjain in MP in a temple in the night of 9th July 2020. He was then taken in the early morning of 10th July 2020 to Kanpur district by UP police. During the transit, at about 6:30 a.m., he was also shot dead allegedly in a police encounter.

There was jubilation and euphoria over these killings in encounters in the entire nation. The public at large celebrated the killings of Vikas Dubey and his five allies between 3rd to 10th of July 2020. Sweets were distributed. The police force was also in an upbeat mood. This was understandable as the killings of eight policemen allegedly by Vikas Dubey and his allies on 3rd July 2020 had spread panic and shock waves throughout the country.

However, almost every common man in the country was saying that the police encounters were not genuine and the same were enacted to take the revenge of the killings of the policemen. Even the politicians in power also justified the encounters not by saying that the same were in the right of private defence by the concerned police personnel. Rather they were saying openly that the culprits were not to be worshipped. The leaders of opposition maintained a studied silence because of the fear of losing vote bank. They were attacking the encounters only by saying that the nexus between the crime perpetrators and the police and some politicians should be got investigated through enquiry and the chapter should not be closed with the death of Vikas Dubey.

I seriously and earnestly contemplated over the issue that nobody was concerned with the eclipse of Rule of Law even though everybody was saying that the justification advanced by the police parties for these encounters was not digestible. The multiple guidelines laid down by the legendary Chief Justice Sh. R.M. Lodha and Rohinton F. Nariman J. in the judgment delivered on 24.9.2014 were not only given complete burial by the police parties which carried out these encounters and rather the said guidelines were shown thumb by them. Despite this, almost the entire nation hailed the action of the police personnel. The said reaction of the entire nation was perhaps because of the inefficacy of our judicial system in bringing the deadly killers to book easily and promptly for various reasons.

However, because of my deep conviction in the Rule of Law, I have decided to pen down this write up as I deeply feel anguished by the derailment of the Rule of Law in these encounters. I am reminded of the views of Karl Menninger when he had observed, “The voice of intelligence is soft and weak, said Freud. It is drowned out by the roar of fear. It is ignored by the voice of desire. It is contradicted by the voice of shame. It is hissed away by hate and extinguished by anger. Most of all, it is silenced by ignorance.”

The concept of Rule of Law is of old origin. Edward Coke is said to be the originator of the said concept, when he said that the King must be under God and Law and thus vindicated the supremacy of law over the pretensions of the executives. Professor A.V. Dicey later developed on this concept in the course of his lectures at the Oxford University.

According to the formulations of Dicey, the concept of Rule of Law contained three principles namely, (i) Absence of discretionary powers in the hands of the government officials; (ii) No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land; (iii) The rights of the people should flow from the customs and traditions of the people recognized by the courts in the administration of justice.

In India, the concept of Rule of Law can be traced to Upnishad. It provides – Law is the King of Kings. It is more powerful and rigid than they (Kings).

In the opinion of some of the judges constituting majority in Keshwananda Bharti case (AIR 1973 SC 1461); Indira Nehru Gandhi case (AIR 1975 SC 2299), Rule of Law was considered to be a basic structure of our system. Taking cue from these decisions, the Supreme Court reiterated this view categorically in P. Sambamurthy v. State of AP (1987) 1 SCC 362.

So if the general perception that the encounters were fake and otherwise it was a justified retribution by the police force, the same clearly brings to an end of the Rule of Law in the country which should be a matter of serious concern. May be Vikas Dubey was not present at the time of the killings of the police personnel at his house. May be some of his relatives or cohorts who were killed in these encounters were not present at the relevant time. Then it is really a matter of concern that they were given punishment by the police without proper trial by the courts of the country.

No citizen should afford to be complacent in this incident of giving a complete go bye to the Rule of Law. Let us recall Paster Niemoller when he stated that :-

“First they came for the communists; I was not a communist, so I did not care; Next, they came for the trade unionists; I was not a trade unionist, so I did not care; Then they came for the Jews; I was not a Jew, so I did not care; Then they came for the Catholics; I was not a Catholic, so I did not care; Today, they came for me (there is left nobody to care)”.

The above said quote should be deeply ingrained in everyone of us if we want to be governed by Rule of Law.

Hon’ble the Apex Court is duty bound to uphold the sanctity of the laws of the land and keep the system of Rule of Law on rails. Following memorable observations made by the tallest Judge Krishna Iyer J. in Union of India v. Sankal Chand Himat Lal Seth, 1977 (4) SCC 193 should be kept into mind when his lordship observed as under:-

“The nature of judicial process is such that under coercive winds the flame of justice flickers, faints and fades. The still small voice is smothered by subjective tribulation and anxieties and if coerced, trembles to objectify law and justice.”

So the Apex Court is expected to bring the system on rails without in any manner being deflected by the strong public opinion in favour of fake police encounters. The Apex Court should appoint a high level inquiry committee, including one or two sitting Judges of the Supreme Court therein, to investigate into all these killings of police personnel and of the gangster Vikas Dubey and his allies. The said committee should also inquire into the alleged nexus between the mafia group of Vikas Dubey and some policemen and the politicians which has come to light in the media these days.

Further, the Human Rights Commissions should discharge an active role by educating the masses about the inalienability of human rights and the concept of Rule of Law.

Parliamentarians should take immediate steps to carry out some amendments in the Code of Criminal Procedure. At present the dreaded criminals do not appear before the courts of law for years together and they are declared proclaimed offenders. The procedure of declaring such criminals proclaimed offenders should be simplified and once a criminal is declared a proclaimed offender then not only evidence should be recorded in the case but even exparte judgment should be announced which should be implemented as and when such criminals are apprehended. Still further, once a criminal appears before the court of law through some counsel then recording of evidence should not stop on applications for exemption from personal appearance. The investigating wing of the police force should be separated from the law and order wing of the police force and the investigating wing should be brought exclusively under the judiciary. Full protection should be given to the witnesses so that they can depose in the cases without fear of the mafia groups.

Silence of the Apex Court, Human Rights Commissions, and Parliamentarians at such a crucial juncture will be culpable in the eyes of posterity. The same will be a black spot upon them in the eyes of posterity in the manner we attribute culpability to Bhisham Pitamah and Guru Dronacharya when they remained silent at the time when Draupdi was disrobed in the Rajsabha.

Let me hasten to end with the observations that I will be too happy if during inquiry into these killings it is established that the members of the police force resorted to these killings in the right of private defence and that the same were not the outcome of retribution by ignoring the Rule of Law. In that situation the face of our republic will be spotless which is my heartiest and keenest yearning.

Personal liberty is a precious right we all cherish, Founding fathers of our Constitution, who composed of politicians, statesmen, lawyers and social workers of eminence in their respective specialties and many of whom had experienced traivails of incarceration owning solely to their political beliefs, therefore, assured to the people a Bill of Rights by Part III of our Constitution and thus protecting them against Executive and Legislative despotism. Like Jefferson they believed that an elective despotism was not the government they had fought for.

Article 20(1) of our Constitution, incorporated in the Bill of Rights, contains a prohibition against ex-post facto penal laws. Article 20(2) incorporates a prohibition against double jeopardy. Article 20(3) gives protection against testimonial compulsion. Article 21 proclaims from the house-top that no one will be deprived of his life or personal liberty except according to procedure established by law. Under Article 22(1), it is laid down that every person who is arrested will be disclosed the grounds of his arrest as early as possible and he had a right to consult and to be defended by a legal practitioner of his choice. Still further, under Article 22(2) every person arrested and detained in custody has to be produced before the nearest Magistrate within 24 hours of his arrest. From this scheme it is thus crystal clear that preventive detention or detention without trial is a sort of anathema under our constitutional set up.

At the same time those who were entrusted with the task of administering the land had another view point. According to them, personal liberty had value, provided the security of the State was not jeopardised and maintenance of public order was not threatened. Allegiance to ideals of freedom could not operate in vacuum. No government could afford to take risks in matters relating to the security of the State.

With a view to balance the conflicting view-points the framers of our Constitution made express provision for empowering the Union of India and the States to enact laws authorising preventive detention. They accordingly incorporated Entry 9 in List I of the 7^th Schedule conferring competence upon the Union of India to enact laws regarding preventive detention when such laws were required for reasons connected with defence, foreign affairs or the security of India. They further introduced Entry 3 in List III conferring legislative competence upon States concurrently with the Union to provide for preventive detention for reasons connected with the security of the State, maintenance of public order, or the maintenance of supplies and services essential to the community. Thus simultaneously protecting the personal liberties of the people and conferring legislative competence upon the Union and States for enacting laws for preventive detention, the framers of our Constitution balanced the conflicting view points. At the same time safeguards were provided in Article 22 via Clauses 3 to 7 thereof so as to minimize the chances of misuse of arbitrary powers by the legislature and the executive as they had obviously a bitter experience of an alien government trampling upon their human rights.

Hopes of the framers of our Constitution were belied when during the Emergency in the year 1975-76 the number of detenus soared up to 1,75,000. This writer was one amongst those detenus who was detained under MISA for full 19 months alongwith his grand father, father and uncle. They were detained for periods ranging up to 19 months without any trial and without disclosing the grounds of their detention even. Power of preventive detention was grossly misused.

On the eve of coming to power, the Janta Party promised to abolish detention without trial. However, the Janta Government soon came to realize that the provisions empowering the government to detain persons without trial could not be completely abolished as in that event the laws like COFEPOSA meant for dealing with anti-social activities like smuggling could not be retained as this Act authorized detention without trial of those indulged in anti-social activities like smuggling, racketing in foreign exchange and the like. Moreover, such a power was considered necessary to prevent black marketing and the maintenance of essential supplies. It, therefore, had to remain contended by seeking to alleviate rigours of the procedure for preventive detention by effecting changes in Clauses (4) and (7) of Article 22 by enacting the Constitution (44^th Amendment) Act, 1978.

Clause 4 of Article 22 of the Constitution to which the above amendment was made by the 44^th Amendment reads thus:-

“No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless:-

(a) An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention;

Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7) ; or

(b) Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).”

By Section-3 of the 44^th Amendment, a new clause (4) was substituted. Two significant departures were made in the substituted clause. Firstly, the maximum period authorising detention without trial, unless the opinion of the Advisory Board was obtained, was curtailed from three to two months. Second remarkable change in clause (4) by this Amendment was that the Advisory Board had to consist of a Chairman and not less than two other members and the Chairman had to be a serving Judge of the appropriate High Court and the other two members could be serving or retired Judges of any High Court. These appointments were to be made on the recommendation of the Chief Justice of the appropriate High Court. Earlier, the Advisory Boards could be constituted by including persons who were, or had been or were qualified to be appointed as Judges of a High Court.

44^th Amendment received the assent of the President on April 30, 1979. Most of its provisions were brought into force with effect from June 20, 1979 by a notification issued by the Central Government on June 19, 1979. The rest of the provisions of this Amendment were brought into force with effect from August 1^st, 1979 except Section 3 whereby Article-22 was amended. Thus, the position as it stands today is that the Advisory Board can be constituted to consist of persons who are or have been, or were qualified to be appointed as Judges of the High Court in accordance with the provisions of Article-22 (4) (a) in its original form. Thus, the safeguards introduced by 44^th Amendment for the protection of detenus stand reduced to dead letters on account of inaction of the Central Government in issuing the required notification despite the fact that the 44^th Amendment was passed by our Parliament some four decades ago.

In A.K. Roy Versus Union of India, AIR 1982 Supreme Court 710, one of the prayers made before the Final Court was for a mandamus directing the Central Government to issue the required notification under Section 1(2) of the 44^th Amendment so as to bring into force the necessary changes in Clause (4) of the Article-22. The Apex Court, however, declined to issue mandamus even though it expressed its strong disapproval of the long and unexplained failure on the part of the Central Government to bring Section 3 of the 44^th Amendment Act into force.

It is really strange that despite displeasure of the highest court of the land was back in the year 1982, the Union of India till date in the year 2020 has not woken from its slumber and issued the required notification so far. It is indeed disgraceful transgression and trampling by the Executive upon the will of the Parliament. Spirit of constitutionalism has been thrown to the winds by this inaction of the Central Government. There is thus need to sensitize the government. World over one perhaps cannot find a parallel or even a nearly parallel instance of the Executive functioning as a parallel Constituent Assembly and thus negating a constitutional amendment passed by the elected representatives of the people. This power was rather delegated so as to enable the government to make arrangements during transitional period as many difficulties that could immediately crop up could not perhaps be visualized. The Parliament never intended that the Central Government should reduce the will of the people to a mere husk. The Parliament obviously did not intend to confer the veto power upon the Executive that this amendment had to come into force on a date dependent upon its sweet choice. Right of veto on the Executive to nullify or negate a constitutional amendment cannot be countenanced in a parliamentary democracy. Executive in a parliamentary democracy cannot be permitted to betray the confidence of the Parliament. May it be remembered that the amendment in clause (4) effected by 44^th Amendment affords to the detenus an assurance that his case will be considered more fairly and objectively by an impartial tribunal. Even since the Gopalan’s jurisprudence the community stands desensitized to the perils of preventive detention and, therefore, it is imperative to provide for the maximum safeguards to the detenus in order to preserve and protect their liberty, which can be achieved by adopting at least the rudiments of due process of law. It is all the more essential when currently various detenus like Sh. Omar Abdulla, Mehbooba Mufti and various others stand detained under the provisions of Public Safety Act. In the case of Omar Abdulla one of the strange grounds behind his detention is said to be his large following in the public.

It is, therefore, high time, that the Central Government should promptly issue the necessary notification so as to bring into force the changes introduced in Article-22 of the Constitution. It is also the duty of the Members of our Parliament to get this 44^th Amendment enforced forthwith as they are oath-bound to protect the spirit of constitutionalism.

If the Central Government or the Parliament still fail to rise to the occasion then the Apex Court should review its judgment in A.K. Roy’s case (supra) and issue the required mandamus.

When the great English Judge Lord Mansfield in the case of James Sommer-sett could boast that the air of England was too pure for a slave to breathe, cannot the Indian Judges also say with the same degree of justifiable pride that the sacred land of Bharat will not be allowed to suffer eclipse of the rule of law and that our Constitution and the laws do not permit the Executive to take liberty with liberty?

Of late, the governments have constituted various Advisory Boards in conformity with the 44^th Amendment but the same cannot be equated with a constitutional right of the citizenry. Rule of law is the antithesis of arbitrariness. Plato once believed that if philosophers were Kings or Kings philosophers, government by will would be intrinsically superior to the government by law and he so proclaimed in his “Republic”. Experience, however, taught Plato eventually that this ideal was not correct, as when the ordinary mortals were allowed to rule by will alone the interests of the community would be sacrificed to those of the rulers.

Deviation from the path of rectitude by the President of India in his inaugural address of the new building of the High Court of Rajasthan on 7th December, 2019 vis-a-vis his powers of clemency/pardon under Article 72 of the Constitution of India.

The President is the Chief Executive of the Union of India and the executive power of the Union of India vests in him vide Article 53 of the Constitution of India.

Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves of remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in (a) all cases where the punishment or sentence is by a court-martial; (b) in all cases where the punishment is for an offence against any law related to a matter to which the executive power of the Union extends; and (c) in all cases where the sentence is a sentence of death.

Power to pardon is a part of the constitutional scheme which has been proposed by the people through the Constitution in the Head of the State i.e. the President of India who enjoys high status and such power rests on the advice tendered by the Executive to the President. The Head of the State has the authority by means of an executive act to tender pardons and reprieves and these functions can be discharged even before conviction.

Similar powers have been conferred upon the Governors in the States via Article 161 of the Constitution. Articles 72 and 161 can be reconciled by limiting the power of the Governors who grant pardon in cases not covered by Article 72. If so read the President alone will have the exclusive power to grant pardon in all cases where the sentence of death is prescribed.

Higher the power, the more cautious should be its exercise. The Constitution of India, in keeping with modern constitutional practice, is a constituted document fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional policy consisting of certain primary organs, institutions and functionaries to exercise the power provided in the Constitution. All powers belongs to the people and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order.

Power to pardon is a part of our constitutional scheme and it has to be so treated in the Indian Republic. Through the Constitution the said power has been reposed by the people on the Head of the State and the said power rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) must act in accordance with such advice.

In Kehar Singh v. Union of India, AIR 1989 SC 653, a Constitutional Bench of five Hon’ble Judges ruled that the order of the President regarding pardon cannot be subjected to judicial review on its merits except with certain limitations. It was also held that it was open to the President, in exercise of the power regarding pardon vested in him by Article 72, to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that accorded by the Court with regard to the guilt of, and sentence imposed on the accused. In doing so, the President does not amend or modify or supersede the judicial record which remains intact and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as the extension of it. And this is so notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him. The legal effect of a pardon is wholly different from the judicial super-cession of the original sentence.

As the President is entrusted with the final power of pardon under Article 72, so he is expected to maintain a path of strict rectitude and not comment upon the desirability or non-desirability of the exercise of the said power even in the most ghastly and dastardly offences which may shock the conscience of the nation.

Recently, there was general outcry against gang rape and murder of a lady veterinary doctor in Telangana State in our country. The four alleged rapists/murderers were one fine morning in wee hours were shown to have been killed by the police during some encounter. The picture of encounter projected by the police did not convince the intelligentsia. However, the outrage against the rapists/murderers was so extreme in nature that the general public applauded the police officers who performed this encounter. People by and large abandoned the concern for the Rule of Law in the country.

When the outcry against the rapists and murderers was in the full swing then in that very period there was inauguration of the new building of the High Court of Rajasthan on 7th December, 2019. The inaugural function was presided over by Sh. Ram Nath Kovind, the President of India. In the select gathering were present the Chief Justice of India, Law Minister of India, various Judges of the High Court, and various advocates etc. The President, while speaking in the said gathering, also touched the resentment going on in the psyche of common man because of the recurrent events of gang rapes and murders. While addressing the audience the President advised the parliamentarians to amend the law to the effect that the provision of pardon in death penalty was deleted in the cases falling within the ambit of POCSO Act, 2012.

It is true that the President is also after all a human being who cannot remain aloof and in complete isolation from the public cries. Yet he being the repository of the powers of pardon under Article 72 should have maintained a discreet silence. Some clemency petitions of the offenders involved in gang rape-cum-murder cases are already pending with the President and many more may come before him in the near future. In such a situation the authority exercising the power of pardon should maintain a path of rectitude. Otherwise the applicants who have moved the mercy petitions or who are to move such petitions will lose confidence in the impartial exercise of this power by the Head of their State who has already expressed disapproval in the matter of granting pardon in such cases. Even the Courts are not infallible. May be in one thousands of cases is such where conviction is recorded by the Courts without there being solid reasons behind the same. Such an error can be rectified by the Head of the State via Article 72 of the Constitution. Even though the power under Article 72 is executive in nature, but it cannot be denied that functions intended to be performed there-under should have no tinge of bias or arbitrariness therein. If there is power to decide any matter then duty to act judicially without prejudice to any person is implicit. Discretion is a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections or opinions.

Let me hasten to add that our worthy President is a noble soul and I hold him in highest esteem otherwise. The idea of penning these lines through this write up just cropped up in my mind as I thought that the utterance by the worthy President recommending deletion of pardon powers in such matters could perhaps be avoided.

The `victim’ – the de facto sufferer of a crime – had no say or participation in our adjudicatory process. He was made to sit outside the courts as a mute spectator only. This miserable plight continued for centuries in the corridors of the conventional apparatus. On occasions only there were whiffs of cool air from the Apex Court and as also from the various High Courts whenever the Benches thereof came to be presided over by activist judges.

This humble write up is restricted only to the subject of right to file an appeal by a `victim in private complaint cases against the orders of acquittal by the magisterial courts.

The Code of Criminal Procedure when originally enacted in the year 1861 did not provide for any right to appeal against acquittals to anyone including the State. It was in the Code of Criminal Procedure, 1891 that Section 417 was inserted therein which enabled the government to direct the Public Prosecutor to present an appeal to the High Court against the original or appellate orders of acquittal by any Court other than the High Court. Thereafter, the Code of Criminal Procedure, 1973 (Code for short) came into existence w.e.f. January 25, 1974. Entertainment of appeals against acquittals was made subject to the leave of the High Court under sub-section (3) of Section 378 of the Code. Under sub-section (4) of Section 378 of the Code, condition of maintainability of an appeal at the instance of a complainant against an order of acquittal passed in a complaint case was retained only if special leave to appeal was granted by the High Court. Further, under Section 372 of the Code, it was laid down that no appeal could lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force.

Then proviso to Section 372 of the Code was inserted with a fanfare by the Parliament vide Act 5 of 2009. After this amendment Section 372 reads as follows:-

“No appeal shall lie from any judgment for order of a Criminal Court except as provided for by this Code or by any other law for the time being in force;

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

The term `victim’ was also defined in the said Act 5 of 2009 and a new sub-section (wa) was added in the catalogue of definitions given in Section 2 of the Code which is as under:-

“victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.”

After the bestowal of right to appeal on a `victim’ against the orders of acquittal via Amendment Act 5 of 2009 in the Code, appeals were filed by the `victims’ against the orders of the magisterial courts to the Courts of Sessions as appeals against the orders of convictions by the magisterial courts would lie to the courts of sessions.

Divergent views were expressed by various High Courts in our country regarding the maintainability of such appeals against acquittals by the magisterial courts in the Courts of Sessions. Some High Courts took the view that appeal by a `victim’ under proviso to Section 372 of the Code in a privately instituted complaint by him could not lie in the Courts of Sessions as the `victim’ was a complainant, and under Section 378 (4) of the Code, such appeals could be filed by the complainants in the High Court and that too with the special leave to appeal to the High Court. Some Benches took the view that the newly added proviso to Section 372 of the Code was independent of the provisions of Section 378 (4) of the Code and there was no condition in proviso to Section 372 of the Code that appeal against acquittal by the `victim’ had to be filed to the High Court and that too with special leave to appeal in this regard. It was observed in this line of thought that it did not make any difference that there was no corresponding amendment in Section 378 (4) of the Code. It was also observed that the Parliament could not have intended to give the rights to a `victim’ under proviso to Section 372 of the Code by right hand and then to withdraw this bonanza by left hand by resorting to Section 378 (4) of the Code. There was also a third strand of thought by some Benches of the High Courts that a `victim’ had a dual right for filing appeals against acquittals. As a `victim’ in a privately instituted complaint he could prefer an appeal to the Court of Sessions via proviso to Section 372 of the Code, and as a complainant he could also avail the remedy of filing appeal against acquittals to the High Court via Section 378 (4) of the Code.

The divergences of views on the subject led to the constitution of a Full Bench in the High Court of Punjab and Haryana at Chandigarh. After a considerable discussion, labour and research, the said Full Bench presided over by Hon’ble Justice Suryakant (as his Lordship then was) delivered the judgment entitled M/s. Tata Steels Ltd. v. M/s. Atma Tube Products Ltd. 2013(2) RCR (Criminal) 1005 in which it was held, inter-alia, that a `victim’ in a private complaint case can challenge the order of acquittal by filing an appeal only before the High Court after seeking special leave to appeal from the High Court. The Full Bench held that notwithstanding the right conferred upon a `victim’ of a private complaint case under proviso to Section 372 of the Code, for filing appeal against an order passed by the Court acquitting the accused to which an appeal ordinarily lies against the order of conviction, there was no corresponding amendment in Section 378 (4) of the Code. So such an appeal could be instituted only before the High Court and that too after seeking special leave of the High Court.

Even though the judgment of the Full Bench of the High Court in M/s. Tata Steel Ltd. case is well researched and well drafted, yet it is humbly submitted that the same has taken a myopic and restricted view of the matter by making the provision of Section 378 (4) of the Code overriding upon the proviso to Section 372 of the Code. The Full Bench ought to have realized that the Parliament in all possibility could not have intended to confer right upon the `victim’ to file appeal against the order of acquittal by a magistrate to the Court of Sessions and then withdraw the same right via Section 378 (4) of the Code. Such a construction will mean bestowing something by right hand and then snatching the same with the left hand.

To obviate this unpleasant situation the Full Bench should have made strenuous efforts to harmoniously construe both the provisions i.e. proviso to Section 372 and Section 378 (4) of the Code in such a manner that effect could be given to both the provisions. Well known canons of statutory interpretation should have been invoked which could very easily obviate the discomfiture. The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature had in view. Their meaning is found not so much in strict grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained vide Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate AIR 1958 SC 353. Mukesh K Tripathi v. Senior Divisional Manager AIR 2004 SC 4179 also recognizes the same principle. When two interpretations are feasible the courts should prefer that which advances the remedy and suppresses the mischief as the Legislature envisioned vide State of Haryana v. Sampuran Singh AIR 1975 SC 1952. Attracting this principle of interpretation, the Full Bench could well hold that the term `complainant’ used in Section 378 (4) of the Code did not include those complainants who were `victims’ also. By adopting this interpretation effect could be given to both the proviso to Section 372 of the Code and Section 378 (4) of the Code. The provision of Section 378 (4) of the Code could thus be restricted to those cases only in which the complainant was not a `victim’ in a private complaint case.

Then if the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results vide Veluswami Thevar v. G. Raja Nainar AIR 1959 SC 422; Tirath Singh v. Bachittar Singh AIR 1955 SC 830; and D. Saibaba v. Bar Council of India AIR 2003 SC 2502. Principle of interpretation recognized in these and various other judgments of the Apex Court could well be invoked by watering down the provisions of Section 378 (4) of the Code in such a manner that the term `complainant’ therein did not include a `victim’ of a private complaint case. If the literal interpretation adopted by the Full Bench in M/s. Tata Steel Ltd. is allowed to prevail then the same will result into absurdity and hardship as in that situation a `victim’ in a case instituted upon police report will be able to challenge the order of acquittal rendered by a magisterial court in the Court of Sessions under proviso to Section 372 of the Code, but he will have to challenge an order of acquittal in the High Court in the cases instituted upon a private complaint. It will further lead to great hardship for a `victim’ as the appeals will have to be filed by the `victims’ in the High Court which may be seated at a far off place. Moreover, in the High Court appeals take decades in their disposal. This will cause special hardship in the cases under Section 138 of Negotiable Instruments Act, 1881 in which the accused are acquitted by the magisterial courts. The same will stop the free flow of trade and economy in the country. If harmonious construction as suggested above is adopted by diluting and watering down the interpretation of the term `complainant’ as not including a `victim’ therein then such a hardship and inconvenience will vanish.

A statute must be read as a whole and one provision of an Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. It is the duty of the courts to avoid “a head on clash” between two Sections of the same Act and whenever it is possible to do so, to construe provisions which appear to conflict in such a manner that they harmonise with each other vide Apex Court in University of Allahabad v. Amirchand Tripathi AIR 1987 SC 57; Krishna Kumar v. State of Rajasthan AIR 1992 SC 1789.

Before leaving the topic a reference is necessary to certain observations by celebrated Denning LJ who said : “when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work only constructive task of finding the intention of the Parliament and then he must supplement the written words so as to give `force and life’ to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.” These observations were made by Lord Justice Denning in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155, p. 164 (CA). This rule of construction stated by Denning LJ was approved by our Final Court in Bangalore Water Supply v. A. Rajappa AIR 1978 SC 548. Invoking this rule of construction also the provision of Section 378 (4) of the Code should have been watered down by holding that the same will not apply in those cases in which the complainant was also a `victim’. This interpretation will also not render proviso to Section 372 of the Code as otiose. It will be in consonance with the legislative intent of redressing the plight of `victims’ who are the actual sufferers in crimes and who hitherto were an ignored specie.

It is, therefore, high time that the Full Bench judgment in M/s. Tata Steel Ltd. case should be reviewed either by a larger Bench of the High Court of Punjab and Haryana or by the Apex Court which is the demand of justice.

Article 141 of the Constitution of India commands that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. Judges of all other courts are thus bound to follow the decisions of the Supreme Court irrespective of their own views on legal matters. The Supreme Court has thus been assigned the role of legal mentor of the nation. Law will be bereft of its utility if it is thrown into a state of uncertainly by reason of conflicting decisions. In order to ensure a state of certainty and uniformity, the framers of the Constitutior had inserted Article 141 in the Constitution. Similarly, the subordinate courts are bound by the decisions of the High Courts under which they are working whereas the dicta of the other High Courts have a high persuasive value for them. There is no explicit provision of law in the Constitution of India in this regard but that is the unwritten rule based on conventions, the doctrine of binding precedents, or stare decisis or what is known as judicial comity.

It is well established by now that even the obiter dicta of the Supreme Court or the High Courts on a point raised and argued before them will be binding on the subordinate courts. An obiter dictum or a mere enunciation of a principle of law pronounced ex cathedra would amount to a declaration of law. The Final Court in M/s. Ranehehoddas Atma Ram v. Union of India (AIR 1961 S.C. 935) ruled that if the questions which were never required to be decided and could not have been or had been treated to be decided, then any casual observations on such questions shall not be treated as binding although it is true that the observations even in the nature of obiter dictum are also binding on subordinate courts.

A decision rendered by a larger Bench of the Supreme Court will have precedence over the decisions rendered by smaller Benches. However, in Jawed Ahmed v. State of Maharashtra (AIR 1985 S.C. 2312) two Hon’ble Judges of the Final Court observed that the Supreme Court sits in Divisions of two or three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to over-rule the decision of a Division Bench of two Judges. But in M/s Ujagar Prints v. Union of India (AIR 1987 S.C. 874) another Division Bench comprising of two Judges of the Apex Court observed that a Bench of two Judges of Supreme Court should not disregard the decision of a Bench of three Judges and if the Bench of two Judges is inclined to disagree with what has been said by the Bench of three Judges then the case should be referred by the Bench of two Judges to a larger Bench. Thus the correct legal position in this regard remains a big question mark.

Where the later decision of the Supreme Court, even though by smaller Bench, has analysed and explained the observations of an earlier larger Bench, then the law as declared by and explained in the later decision is binding upon the High Counts as observed by a Full Bench of the High Court of Punjab and Haryana in M/s Subhash Chander Kamlesh Kumari v. State of Punjab (AIR 1990 Punjab and Haryana 259). No exception can be taken to this erudite opinion rendered by the Full Bench of the High Court of Punjab and Haryana as when the Judges of the Final Court itself explain the dictum laid down by the earlier larger Bench then such an explanation must hold the field in the courts subordinate to the Supreme Court.

The core problem in the arena of binding precedents is when there are conflicting judgments by co-equal Benches. Which out of the two conflicting judgments in such a situation is binding has not been authoritatively decided by the Apex Court. The various High Courts in the country have, however, adopted divergent views in this regard.

According to some High Courts if the subsequent Bench doubts the correctness of the earlier Bench decision, then the matter should be referred to a larger Bench for considering the correctness of the earlier view. If such a step is not taken and divergent views are prevalent, the subordinate courts should follow the earlier view in preference of the latter view. In this connection reference may be made to Jadab Chandra Pradhan v. Smt.Kaushalya Pradhan (1975 Crl. L.J. 856). Let me hasten to add here that in this case decided by the High Court of Orissa the conflict was between the two judgments rendered by single Judges of the High Court but the same should not make any difference and thus according to this decision in the event of conflict between co-equal Benches, the subordinate courts must follow the earlier judgments.

To the contrary, the platitudinous thinking is that, out of two conflicting judgments of co-equal Benches, the subordinate courts must follow the latest decision as the same impliedly overrules the earlier decisions. In this connection reference may be made to Gopal Krishan Indly v. Fifth Additional District Judge, Kanpur (AIR 1981 Allahabad 300).

A Full Bench of the High Court of Punjab and Haryana, however, adopted a third view in this regard in case reported as Indo-Swiss Time Ltd v. Umrao (AIR 1981 Punjab and Haryana 213). The Full Bench ruled in this case that when two conflicting judgments of the Supreme Court were there, then on principle the High Courts must follow the judgment which appears to it to lay down the law more elaborately and accurately. Thus the weight of two matching and conflicting judgments inevitably must be considered by the rationale and logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. The theory of pre-eminence of a judgment by virtue of its time and being the latest alone was thus conclusively laid to rest.

Thus in the field of binding precedents different High Courts have adopted different views with regard to the point as to which of the two conflicting judgments of co-equal Benches is binding upon them. It appears that by now there is no authoritative pronouncement on this subject by the Apex Court.

Then there is problem of judgments rendered per incuriam. The High Court of Bombay in Sita Ram v. Lachhman (AIR 1980 Bombay 55) held that a decision rendered in ignorance of a statute or rule having force of a statute is a decision delivered per incuriam and is not a binding precedent. On the same wave length is a judgment of the High Court of Andhra Pradesh in T. Ommiramma v. Tehsildar Kadiri (AIR 1980 A.P 267). Both the Bombay and Andhra Pradesh High Courts were, however, confronted with situations where some earlier judgments of these High Courts had been delivered in ignorance of some statutory provisions. Whether this doctrine of per incuriam rendering of judgments be invoked in the cases in which the Supreme Court has delivered judgments in ignorance of some statutory provisions of law is not yet clear, even though in Jaisri v. Rajdewan (AIR 1962 S.C. 83), this doctrine was invoked by their Lordships by observing that the court was not bound to follow decision of its own if given per incuriam. The Supreme Court relied upon Halsbury’s Laws of England, third edition, Volume 22, para 1687 pp 799-800 wherein it has been observed that a decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords.

From these observations it is not clear whether in the judgments rendered by the Final Court in ignorance of statutory provisions can be treated as judgments given per incuriam. Rather in B.M. Lakhani v. Malkapur Municipality (AIR 1970 S.C.1002), it was remarked that a Supreme Court decision is binding on High Courts and the same could not be ignored on the ground that relevant provisions of law were not brought to its notice. Thus this aspect of the controversy is also to be settled by the Apex Court.

I have adverted to the various judgments on various shades of precedents referred to in various judgments of the years 1970-1980. However, various other judgments have been rendered by the Apex Court and the various High Courts in recent year also, but the same also leave the situation in the same fluid condition. I am not burdening this write up with those judgments.

It is high time that the Final Court of this country should give authoritative pronouncements covering all these and other allied questions in the field of binding nature of precedents and only then certainty and uniformity in the legal field can be injected which is highly essential and desirable in an orderly society based upon rule of law. The Supreme Court has always been the cynosure of public hope and citizens look towards it at this moment when the nation is standing on the escalation of anarchy and corruption. The role of the Supreme Court in free India has been glorious. Hardly had the ink dried on the pages of the constitution, the Hon’ble Supreme Court had to deal with several important matters involving the interpretation of the provisions of the Constitution. Even though these problems were without precedents, yet the Apex Court handled all these matters aptly and deftly in such a manner that our Constitution today is not a jellyfish, but a highly evolved organism. People look to the courts as guarantors and protectors of civil liberties and any citizen of our republic can be legitimately proud of this august institution. Once again the citizens may focus their hopes on this hallowed institution for delivering authoritative pronouncements in the field of the binding nature of precedents under Article 141 of the Constitution of India.