- Triplet 16 - Frontiers of the Doctrine of Ex Debito Justitiae

Triplet 16

Frontiers of the Doctrine of Ex Debito Justitiae

By Shiva Kant Jha

June 12, 2009

"IT is a settled and invariable principle in the laws of England ,” said William Blackstone, “that every right when withheld must have a remedy, and every injury it's [sic] proper redress."[ vide his Commentaries on the Laws of England 23]. This dictum expresses a most fundamental guiding principle of the common law as evolved in the Anglo-American jurisprudence which we largely share. A right in the end is just a legally protected interest. But rights are ineffective unless adequate remedies are available. The Constitution and the laws of our land grant remedies of differing reach in terms of our Constitution and the laws. Our Constitution grants appellate and original jurisdictions to our Supreme Court. Article 32 confers a fundamental right for the enforcement of the fundamental rights many of which are so fundamental as to be treated as the basic structure of the Constitution not amenable to an amendment. Our Constitution prescribes an elaborate appellate control and judicial review to ensure a right determination of the causes where the courts' jurisdiction is invoked.

Our superior courts hold scales of justice quite even ; and the administration of justice is meticulously objective, and appreciably bold. But fallible as are all human institutions, even the courts sometimes commit serious mistakes causing miscarriage of justice. The categories of such possible transgressions are many; they are so well known that any exposition thereof is not needed. Art.137 of the Constitution expressly provides an aggrieved person a right to invoke the Supreme Court's Review Jurisdiction to seek relief in cases of gross abuse of the process of the Court or a gross miscarriage of justice.

In effect, an aggrieved person invokes, in such situations, the inherent power of Court. This doctrine is crisply articulated in the maxim ex debito justitiae . Indian authorities are in abundance to support the view that injustice done should be corrected by applying the principle actus curiae neminem gravabit – “an act of the Court shall prejudice no one”. In Antulay's Case Ranganath Misra J. observed:

“Brother Mukharji has referred to several authorities in support of his conclusion that an order made without jurisdiction is not a valid one and can be ignored, overlooked or brushed aside depending upon the situation. I do not propose to delve into that aspect in my separate judgment”.

“The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors.”

“The inherent power,” observes the Supreme Court in Manoharlal v. Seth Hiralal [AIR 1962 SC 527], “has not been conferred on the Court; it is a power inherent in the court by virtue of its duty to do justice between parties before it.” Section 151 of the Civil Procedure Code explains the ambit of the concept thus:

“Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

“The Court has, therefore, in many cases, where the circumstances require it, acted upon the assumption of the possession of inherent power to act ex debito justitiae . And to do that real and substantial justice for the administration for which alone it exists. But the power relates to matters of procedure.” [ Mulla , C.P.C. 14th ed. p. 784].

It seems to me that it is not correct to subsume the entire gamut of the court's inherent power under the conventional rubric of ‘power ex debito justitiae ' . Ex debito justitia refers to that segment of inherent power, which must be exercised by the court as a matter of judicial duty if the proper circumstances for the exercise are pleaded. We have created the various constitutional organizations for public good. Our expectations from such organs become, by an inevitable logic, their duties .. If the lapses, the correction of which are contemplated by the doctrine, occur in a judicial proceeding, the Court is under a duty to set the lapses right. This view emerges clearly from the definitions of the doctrine itself. Its rationale and character emerges from the observations in some well-known authorities: to quote few---

(i) As a matter of right; in opposition to a matter for the favour of or discretion. Mozley Whiteley's Law Dictionary

(ii) As debt of justice. As a matter of legal right. 3 Bla . Com . 48

(iii) It is well-established principle of law that every court has inherent power to act ex debito justitiae ---to do that real and substantive justice for the administration of which alone it exists or to prevent abuse of the court. Dinesh Dutt Joshi v State of Rajasthan 2000 (8) SCC 570

(iv) From or as a debt of justice; in accordance with the requirement of justice; of right; as a matter of right. Black's Law Dictionary 7th ed .

It is interesting to note that the remedy that the court provides in such circumstances proceeds ex debito (from debt). In a sense, it is the court's debt, which is being discharged so that the administration of justice does not suffer. Those who have suffered from any remissness of the judicial process are entitled to remedy ex debito justitiae , by right. Once such lapses are shown to exist, the court has no discretion but to intervene ex debito justitiae . The court owes a debt to them, they must be given an opportunity to establish his case because, if he can make out a case, he is entitled to a remedy ex debito justitiae .

There is one more aspect of the matter. After the commencement of our Constitution the reach and ambit of the doctrine of ex debito justitiae are no longer what it was when the framework of reference was the Civil Procedure Code alone. Whenever a petitioner contends that his fundamental rights are breached, the Court's role and observation-post both change. Not only it should refuse to be astute to frustrate granting a remedy, but it should, to quote Earl Warren, “exercise the functions of the office to the limits of its responsibilities.” On analysis and examination of decided cases a set of principles emerge which can cumulatively be considered the categorical imperatives of the doctrine of e x debito justitiae . These can be classified under three heads:


Substantive ultra vires

( i ) Decision per incuriam of the constitutional or statutory provisions;

(ii) Decisions per incuriam of the binding judicial decisions;


Procedural ultra vires

( i ) Decisions without jurisdiction ;

(ii) Decisions in breach of the Rules of Natural Justice ;

(iii) Decisions tainted with irrationality (Objective unreasonableness).

III. Actus Curiae Neminem Gravabit

(An act of the Court shall prejudice no man)

In effect, essentially these grounds are one ground: ultra vires . The doctrine of ultra vires is supreme as under our constitutional system all the organs (including the judiciary) are subject to the rule of law.

On precedents and principles it is settled that the courts are competent to grant remedy e x debito justitiae under the following circumstances:

(i) Where a fundamental right is violated vide A . R. Antulay v. R. S. Nayak and Anr . [ AIR 1988 SC 1531 at 155]

(ii) Where a statutory provision is not perceived or is disregarded, or where binding judicial decisions are not followed [ The Court of Appeal observed in the Bristol Aeroplane Case [ (1944) 1 K.B. 718].

(iii) Where decsions are given without jurisdiction [ A. R. Antulay v. R. S. Nayak and Anr ; and Murtaza v. Yasin , AIR 1916 PC 89; Govind Menon v Union AIR 1967 SC 1274, 1277]. If a court exceeds the limitations on its “jurisdiction”, or ignores (or overlooks) the rules of procedural fair play, the court would “abuse” the judicial process causing a “miscarriage of justice” [Miscarriage of justice is a term of art: the New Shorter Oxford Dictionary English Dictionary defines it thus: “miscarriage of justice is a failure of the judicial system to attain the ends of justice.' But the 6th edition of the Concise Oxford Dictionary puts it more accurately when it defines it to mean “failure of court to attain the ends”. Collins Co build English Language Dictionary explains it to mean “A miscarriage of justice is a wrong decision made by a court, which has the result that an innocent person is punished”]. Explaining transgression of the jurisdictional frontiers de Smith mentions [vide Judicial Review of Administrative Action 4th ed. pp. 344-345] cases where (a) where the refusal to admit evidence amounts to a refusal to hear a party before the tribunal; (b) where a refusal to admit evidence amounts to a refusal of jurisdiction; (c) where even refusal to receive evidence may amount to a refusal to exercise jurisdiction.

I would tell you something in the next leaf as the grant of a new judicial remedy by the Supreme Court in exercise of the amplitude of power, inherent and explicit. We call this the Supreme Court's Curative Jurisdiction that can be availed even after the rejection of a review petition. It was developed in Rupa Ashok Hurra v. Ashok Hurra (AIR 2002 SC 1). Unfortunately the Supreme Court, it is submitted, did not explore the wide frontiers of its inherent powers, and the profundity of the doctrine of e x debito justitiae . Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [ [1984] 3 All ER 935 H.L] classified under three heads the grounds on which administrative action is subject to control by judicial review: ‘illegality”, ‘irrationality”, and “procedural impropriety”. Essentially these grounds are one ground , ultra vires . But such serious blemishes in a judicial act, even if that be by a superior court, must be set right as such lapses (if they remain uncorrected) would surely shake people's confidence in the probity of our justice delivery system.


Supreme Court's Curative Jurisdiction: a remedy recently devised by Court

In Rupa Ashok Hurra (2002-TIOL-469-SC-MISC-CB), on appreciation of the arguing counsels' “unanimous approach to plead that even after exhausting the remedy of review under Art.137 of the Constitution, an aggrieved person might be provided with an opportunity under inherent powers of this Court to seek relief in cases of gross abuse of the process of the Court or gross miscarriage of justice because against the order of this Court the affected party cannot have recourse to any other forum,” this Hon'ble Court formulated the question for judicial consideration thus:

“whether an order passed by this Court can be corrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the Court or miscarriage of justice to an aggrieved person.”

Our Supreme Court, in Rupa's Case , referred to the provisions of O. XL, R. 5 of the Supreme Court Rules that bars further application for review in the same matter. The Court formulated a pointed question to be answered in the case: whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, complaining of the gross abuse of the process of Court and irremediable injustice.” The Court invoked the well-known maxim of Interest reipublicae ut sit finis litium , and stated its effect:

“The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment.”

The Court weighed in its judicial calculus the competing public interests in the effective administration of justice and the stability of law, and came to a conclusion well in tune with the highest tradition of our Judiciary:

“We are faced with competing principles ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision-making process not disclosing his links with a party to the case, or abuse of the process of the Court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty.”

which led this Hon'ble Court, in that case, to the following upshot:

“The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgments in exercise of its inherent power.”

This Hon'ble Court rightly drew out the two vitiating blemishes: “the abuse of judicial process' and “miscarriage of justice”, but failed in drawing up their necessary corollaries. The Hon'ble Court narrowed these two vitiating factors without considering the lethal consequences of their narrowing on the administration of justice, as the narrowed and constricted norms virtually denude the doctrine of ex debito justitiae of its wide content.

In Rupa's Case this Hon'ble Court considered the prescriptions to ward off apprehension of over-flooding with second review “as a matter of course in the guise of a curative petition under inherent power.” It recognized that it “is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.”

And then the Court prescribed the conditions and parameters for the operation of the Curative process in exercise of its inherent power:

“Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis , he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.”

On reading the above-mentioned judicial observation, one notices the following three points:

(i) The language in which the conditions are prescribed make it clear that this Hon'ble Court is not chartering the full field of the doctrine of e x debito justitiae , but is describing only two of its imperative norms as grounds for judicial intervention;

(ii) Though the Court referred to the wide expressions (“the prevention of the abuse of its process of the court” and “the curing a gross miscarriage of justice”), it observed that:

“It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.”

The Court, in effect, while articulating the operative formulations drew up the frontiers of the doctrine in such words which rob it of much of its plenitude recognized all along by the Superior Courts in India and England.

(iii) The entitlement to obtain judicial correction of the impugned judgment is predicated on two conditions:

(1) violation of principles of natural justice ‘in that' he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis , he was not served with notice of the proceedings and the matter proceeded as if he had notice; and

(2) where in the proceedings a learned Judge failed to disclose his connection with the subject matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.

The first prescription for the remedy e x debito justitiae is extremely formal as it considers only “ impleading ” and “notice” in themselves sufficient compliance. This sort of compliance is, no doubt, essential, but the rule of Audi alteram partem can get frustrated in many other ways. How can the requirement of this rule be considered fully met if serious lapses detrimental to the proper administration of justice take place in a given case in course of a judicial proceeding itself?

In Rupa certain procedural pre-conditions were laid down: these are in brief thus stated:

(i) The petitioner, in the curative petition, shall ever specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation

(ii) The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

(iii) Since the matter relates to re-examination of a final judgment of this court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available

Criticism of the Curative Jurisdiction:

The following comments on Rupa are called for:

(i) As the Writ petitioner in Rupa got his remedy under the Court's inherent judicial power, and as the Court reframed the referred question in terms which excluded the need of a pointed answer to the question (whether a writ could be issued to correct the violations of the fundamental rights), all the observations in Rupa to the effect that the superior courts are not amenable to the judicial review under Art 32 of the Constitution are wholly obiter.

(ii) The reach and the ambit of the judicial doctrine of ex debito justitiae was narrowed down for no good reasons .

(iii) The non-grant of an open court hearing, whilst considering a curative petition, breached the norms of procedural propriety.

(iv) The ‘procedural airplay' deficit in the curative procedure is a matter of serious concern. The Review Petitions are decided in chambers, and so are the curative petitions. As curative petitions are considered by the judges, who decided the matters and disposed of the review petitions, it is all the more called for that an opportunity to the petitioners to prove their points be given.. This is all the more needed as stock-responses and inhibitions can lead to situations which Justice Frankfurter contemplated when he said in Craig v Harne ( 331 US 367,392 (1947): “It has not been unknown that judges persist in error to avoid giving the appearance of weakness and vacillation”

But when all these are said, the Curative Jurisdiction can be profitably invoked in appropriate cases even after the disposal of the Review Petitions.


'Reforms with human face': Manmohan's mohan raag

Dr. Manmohan Singh let loose a vernal breeze for our delight when he said in his contralto years back that the "21st century needs to be India's century." His another shibboleth, repeated time after time since the general election of 2004, is his embellished dictum which to many minds contains both a lollipop and rainbow:

"Reforms are needed, I've always said that, but economic reforms with a human face that gives India's common man a real hope."

But for a common man the words ‘reforms' and ‘human face', as occurring in this enticing mohan mantra , are difficult to comprehend. As a countable noun ‘reform' means “ the removal of faults or errors, amendment, change for the better; reformation of character.” [SOD]. Some crazy creatures set up the Reform Club in Pall Mall in London's Clubland in 1836 to promote political ‘reform', but this theatre turned out a mere glamorous rendezvous for some to twitter, what Hamlet would call, ‘words, words, words'. The word ‘reform' has continued since its dim past as a hallucinatory word more mysterious than the utterances of the three witches in Macbeth which made Macbeth hear what he wished to hear. ‘Reform' can mean so many things to so many persons that it stands denuded of all content. It often becomes a mere collocation in the abracadabra of the neo-liberal economists. They have played mischievously well t he Pied Piper of Hamelin whose sweet tunes lured the rats into the Weser River to dance to death by drowning. There are good reasons to think certain words do not mean, but are made to mean. In Alice in Wonderland Alice asked Humpty Dumpty: "The question is, whether you can make words mean so many different things”. Pat came a reply: “The question is which is to be master -- that's all." If Philip Wheelwright would have called such words ‘ plurisigns '; and William Empson would have felt such words as the illustrations of the eighth type of ambiguity. Such words facilitate the work of the crooks and cranks, knaves and fools, the go-getters and the greed-setters (or suitors). Now to ‘human face' . Who, still in senses, ever believe not to to know ‘human face .. But, after all, what is there in ‘face'? I do not intend to dilate in this brief leaf on the art and craft of the ‘imperial deception with a smiling face' dexterously put on by the imperialists, and now no less skillfully worn by the exploiters bred by the present-day Economic Globalization. Jack Prelutsky composed a poem on a crocodile's smile. He cautions you against the guiles of a smiling, but crafty, crocodile which invites an unwary to “join him in the river Nile and swim with him a little while”. Whilst the persuaders and advertisers are all around to tender such an invitation , it is for us to fall flat for it, or to spurn the damsel of delight as had been done by Lycius to Lamia in Keats's Lamia . Didn't Hamlet say in Shakespeare's Hamlet ‘ one may smile, and smile, and be a villain'? My reader, I assume, must have read about Bottom and Tatania in Shakespeare's A Midsummer Night's Dream . Puck played a practical prank to turn Bottom's head into a donkey's whilst in a forest. When Tatania waked up she unhesitatingly planted all sorts of voluptuous kisses on his donkey's head (perhaps she did so as she saw in him a heart of gold where love over brimmed) So, what is there in a face?

Now I must tell you a little in pedestrian and prosaic way otherwise you may think that this leaf has been penned only after its author got up on the wrong side of the bed. In the modern Czechoslovak history there was a period they metaphorically call the Prague Spring . It flowered under the reformist Slovak Alexander Dubcek who came to power in 1968. His spring lasted only a short while before it was smothered under the Soviet frost. Dubcek strove to liberalize by borrowing western roses. He called his eclectic potpourri 'socialism with human face'. Either his people understood him too well, or did not understand his mystical magic wand, he was ditched soon, and he slipped out of the annals unsung and unwept. I have referred to the Prague Spring's motto ‘socialism with human face' as it recalls how Puck put the donkey's head on Bottom to hoodwink the vigilant Titania . What mattes, when all is said, is whether one posses ‘human heart'. We know nearer home that our all merciful God Narsimha , one of the avtars of Vishnu , had the head of a loin. But knowing that most of our young readers find delight only in the western borrowings ( like camels of Delhi looking to the west as desert is that side). I would conclude this leaf of the triplet with him with whom the most foolish British monarch James I began his intellectual excreta in his The Law of Free Monarchies. It was Thomas Hobbes (1588-1679), the author of Leviathan . Almost with geometrical reasoning Hobbes proved that ‘the human beings are inherently acquisitive, acting solely by self-interest with no thought of love, altruism, or ethics. The allegorical frontispiece of the books shows how a monstrous and incomprehensible body subsumes all institutions and state organs in its his majestic frame, and its python embrace crushes all its preys. His head is good and great having Descartesan facile face, and a Newtonian precision.. Leviathan's s human face had over it an imperious crown ; and his two hands carried mace and sword to silence all dissent. Leviathan had human face but a monster's heart. So, after all, what is there in face? We would, like Titania , love to kiss the face of a donkey rather than that of a Leviathan who could smile and smile and yet be a villain. Adam Smith, the author of The Wealth of Nations , made, by his alchemy, a new laser beam rush forth from the heart of his capitalist Leviathan which the economists call the ‘Invisible Hand'. I need not tell you anything about the things of horrors it has wrought in these locust-eaten years.. But do not guillotine me for discounting the importance of ‘face'. Again I would take you back to Jack Prelutsky who rightfully paid tribute to the Creator for putting our nose on our face because if He would have ‘sandwiched it between [our] toes, that could not have been a good treat “ for you'd be forced to smell your feet”, ( surely not an agreeable experience) . We eagerly await the coming of the ‘human face' with ‘human heart' with milk of human kindness, It appreciates what had been so well said through a rhetorical question in the Song of Solomon: “What mean ye that ye beat my people to pieces, and grind the faces of the poor?”. Human heart is all that is needed to decide with the Mahatma's talisman ever present in consciousness. The talisman is:

“I will give you a talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test:

Recall the face of the poorest and weakest man whom you have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions?

Then you will find your doubts and yourself melting away .”

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