- Triplet 15 - Supreme Court doesn't 'rule' - it does its constitutional duty

Triplet 15

Supreme Court doesn't 'rule' - it does its constitutional duty

By Shiva Kant Jha

May 29, 2009

SOMETIMES back I read David C. Korten's When Corporations Ruled the World, and found that whenever the corporations ruled, democracy went down the gutter. While travelling from Patna on May 11, 2009 I read an article by Mr. Soli Sorabji, the former Attorney-General of India in The Indian Express . Its headline was: "When the Supreme Court rules". Till then I knew that in our country it was the Constitution that ruled, and it was the will of ‘We, the People' that reigned. The Supreme Court, like the other organ of the State merely discharged its duties under our Constitution. It, like other organs of the State, must be able to say at the end of the day, as Lord Nelson had said at the end of the Battle of Waterloo: [Our country expects ] everyone to do his duty. I read the article with a lot of curiosity to find out what might have led a distinguished jurist to hold that in our country it is the Supreme Court which "rules". On the dunghill of those fatigued moments at the railway station I read that article between the lines; but I got no light. My quest led me to reflect on: (i) the two judicial decisions of our Supreme Court which were referred in the article; and (ii) the tone and feelings which revealed themselves in the exquisitely couched expressions which seemed to conceal more than reveal.

The two decisions of the Supreme Court analysed by Mr Sorabji in the said article are well known, requiring no detailed exposition. In the first case the Supreme Court frustrated the attempt of a crook who tried to get out of the trap of the Section 498A of the IPC, meant to punish one who tortured his wife for dowry. He was ingenious enough to invent a plea to exit the charge. He pleaded that she was not his ‘wife' as he was already married to someone else. He pleaded that the complainant was not his legally wedded wife. ‘'The question before the Supreme Court was about the meaning of the expression "husband", in the absence of any statutory definition." The Court held that for the purpose of the said Section the expression "husband" would include a person who enters into a marital relationship and under the colour of a proclaimed or feigned status of "husband" subjects the woman to cruelty to satisfy illegal dowry demands. In another decision the Court interpreted the ‘right to life' under Article 21 of the Constitution to comprehend the ‘right to water'. [Perhaps the Court's perception was admirably deepened by various international declarations recognizing the right to water as a human right which, in the civilized opinion , constitutes an extension of ‘the right to life ' itself .]

For quite sometime I was at my wit's end to discover what was so extraordinary in the aforesaid two decisions that they became the stuff for reflection in the Press. Words are known to undergo "semantic" changes. In Dyson Holdings Ltd v. Cox [(1976) Q.B. 503] the expression "member of the family" was held to include the lady with whom one lived for 21 years as if she were his wife though he never married her nor she ever bore his child. The court held that the meaning of the expression underwent a change in response to the changed circumstances and social mores. Lord Denning wrung humour no doubt when he said: "It [the word ‘family'] is not used in any technical sense in which it would be used by a studious and unworldly lawyer, but…. by the worldly man in the street." [I apologize in commenting that most learned members in robes are ‘studious' and ‘unworldly' almost cheek by jowl as their remote ancestors were in Geoffrey Chaucer's The Canterbury Tales were.] In Minister of Home Affairs v. Fisher [(1980) A.C. 319 (P.C.) the question raised, in the context of the human rights provisions of the Bermuda Constitution, was whether the word "child" mean t"legitimate child". The Privy Council adopted a liberal construction of the expression taking into account the impact of the social conditions between the 19 th and 20 th centuries which had the effect of narrowing the hiatus inter se legitimate and illegitimate children. The Privy Council kept in view the post-colonial environment wherein fundamental rights are constitutionally guaranteed.

Our Supreme Court has shown an analogous judicial creativity, not only in the field of causes involving human rights but even in the spheres of the economic rights most dear to the modern world of commerce and its lobbyists. One such a case is CIT vs. B. Suresh 2009 TIOL-35-SC-IT which, while interpreting Section 80HHC of the Income-tax Act, 1961, kept in view the changing pattern of trade and commerce in this phase of economic globalisation, cross-border transactions, the technological advancement. Under the changed circumstances, one has to change one's thinking about commercial and economic concepts like ‘goods', ‘merchandise' and ‘articles'.

I was wondering why a person is ill at ease with the judicial creativity in the permissible zone; unless under the present-day rule of market ( pax mercatus ) he believes in the noxious idea of judicial withdrawal rhyming and chiming well with the much-hyped withdrawal of the government from welfare activities [ Now fast losing relevance in this phase of economic meltdown.] . Such persons seem to believe, as did Richard Posner, that the Constitution is a mere Economic document for the protection of the free market!

But before I proceed further, I may enter a caveat. On reading Mr. Sorabji's article for quite a few moments I wondered whether it amounts to a criticism or an appreciation of the judicial work of the court. Whenever I felt myself lost in the haze, I thought of invoking that technique of linguistic analysis which characterized the Cambridge English of which the leading lights were now legendary F.R. Levis, I.A. Richards, C.K. Ogden and William Empson. My loadstone led me to explore the ‘tone' and ‘feelings' which are at times more important than mere ‘sense' of the expressions.

After discussing the decision coming to the succour of the tortured ‘wife', the author of the article betrays his mind by putting a rhetorical question:"What is the basis for the court's extraordinary conclusion?" He himself first divined an answer but he immediately struck holes into that. He referred to the fact that once upon a time Lord Denning had adopted a similar approach, but faced its rejection at the House of Lords"who decried such judicial heroics." He expressed himself still more eloquently when he thought of a"critical question" ‘whether it is permissible for judges in India to cure omissions in a statute by filling in the gaps a la Lord Denning.' Then through a still more rhetorical question he suggests that such a judicial behaviour is a trespass on the legislative field which constitutes a breach of the doctrine of Separation of Powers. His subdued appreciation of the Court for bringing the barriers, built through the said doctrine, down is interesting. He refers to the"jurisprudence of compassion" spawned in the judicial matrix. Whilst jurisprudence can not be dissociated from compassion, the expression ‘jurisprudence of compassion' is not worth appreciation. But this interesting aspect cannot be pursued further in this leaf of the triplet because its spatial constraints.

The second judgment referred in the article holds the right to water as a human right emanating from the ‘right to life' entrenched as a fundamental right in our Constitution. Mr. Sorabji wonders how the Court, instead of ‘recommending', thought it fit to ‘direct' that a committee of the scientists be constituted to do their"patriotic duty" in finding out feasible ways to solve the problems of water scarcity. I wonder why one should curl up, or cock a snook at the judicial creativity. If the Court ‘directs' the Executive just to do its ‘duty', what is wrong in it?. If the discharge of that legitimate duty intersects the legislative or the executive fields so that be. When all is said, the Superior Judiciary's constitutional duty, as the upholder of the Constitution, is to see that the Constitution does not fail, or become a shocking or mocking travesty, because some organ choose to turn indifferent to its constitutional duty on some specious plea close to its heart. This point is sufficiently borne out by the historical perspective of the U.K. whose Parliamentary system seems to have been adopted. It was the duty of the King's court to see that all the authorities of his realm worked in conformity with the King's legal regime as set up in the realm through law and the constitution.. It is this golden thread in the juristic reasoning which is so evident even in a recent decision of the Privy Council in Teh Cheng Poh v. Public Prosecutor, (1980 LR, 458 PC at p. 472) . H.M. Seervai observes,"….. the importance of Poh's Case lies in the fact, that in the opinion of the Privy Council a mandamus would lie against the Cabinet to advise His Majesty. to revoke the Regulations." ( Constitutional Law of India , p. 1131). This judgment of the Privy Council deserves to be read between the lines both for light and delight. The ironical tone adopted in the said article by quoting ‘patriotic duty' under inverted commas is quite in tune with the prevailing ethos bred by the Economic Paradigm of the Economic Globalization under which ‘patriotism' stands quoted at the national stock exchange at minus zero! The tone of ambiguity, and the acidic nuances of feelings rippling subterraneously, make the readers wonder how dexterously contradictory ideas have been yoked together.


On use of a Textbook in a Judicial Proceeding

There are some well-settled judicial norms governing the selection of text books for reliance in a judicial proceeding; but unfortunately there come moments when such norms are ignored even by our superior courts causing deep consternation and dismay both to the discerning readers, and the litigants.

The principles, which guide the courts in selecting textbooks for reliance in judicial proceedings, are well settled. Hood Phillips' Constitutional and Administrative Law (7 th ed) at p 24 states:

“Whether a text-book will be treated as authoritative this special sense is determined by the tradition of the legal profession and the practice of the courts, and depends on such factors as the reputation of the author and the date when the book was written".

We share the British professional tradition. An examination of the decisions of the Supreme Court shows that the Court is extremely selective in matter of books for reliance, especially those that have the potential to clinch the issues under judicial adjudication. Some books are used merely for obtaining some peripheral information; some are used to provide a supportive reasoning, but some are used to supply the very core reasons, which tilt the fulcrum in the adjudicatory process. In selecting an appropriate book for reliance the following two factors are always taken into account:

(a) the reputation of the author, and

(b) the date when the book was written.

Only books by the authors with established reputation of scholarship, impartiality and detachment are to be consulted. Date of the writing of a book is also important as Time always works as a critic with great discrimination. This must be the reason why Ralph Waldo Emerson said in his Society & Solitude :"Never read a book that is not a year old." There must not be an occasion for anybody to say, as it was said in the Book of Job: ‘That mine adversary had written a book' [which by misfortune can even become, through an oversight or unintentional remissness, the very ground for a decision!]. With the passage of time a book is weighed; and is discredited if it is found wanting in worth. People even come to know if the author of the book was holding a brief for someone interested in a cause. Oppenheim's International Law states:

“…the work of writers may continue to play a part in proportion to its intrinsic scientific value, its impartiality and its determination to scrutinize critically the practice of states by reference to legal principle."

In effect, in this exercise the measuring rod is the principle of proportionality. Determination of the ‘proportionality' is, as Bertrand Russell said, an exercise in wisdom. Shakespeare said in his Richard II :

How sour sweet music is
When is broke and no proportion kept!
So is in the music of men's lives.

It is from this notion that Lord Diplock derived one of the counts on which Judicial Review could be sought (the principle of proportionality). It needs no argumentation that whosoever decides to rely on a book, especially when it is crucial to judicial decision-making; he is under an unfaltering duty to examine the book in the light of the tests mentioned by Oppenheim.

The well settled norms for selecting a textbook and for evaluating the worth of its content are best summarized by Megarry J. in Cordell v. Second Clanfield Properties (1969) 2 Ch. 10 at pp. 16-17:

“I would add one comment, in amplification of certain observations that I made when during the argument Counsel cited a passage from the third edition of Megarry and Wade's Real Property . It seems to me that words in a book written or subscribed to by an author who is or becomes a judge have the same value as those written by any other reputable author, neither more, nor less. The process of authorship is entirely different from that of judicial decision. The author, no doubt, has the benefit of a broad and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to pre-conceptions and lacks the advantage of that impact and sharpening of purpose, which the detailed facts of a particular case bring to a judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case. Argued law is tough law…I would, therefore, give credit to the words of any reputable author in a book or article as expressing tenable and arguable ideas, as fertilizers to them and as a convenient expression of fruits of research in print, often in apt and persuasive language. But I would do no more than that, and in particular, I would expose those views to the testing and refined process of argument. To-day, as of old, by good disputing shall the law be well known."

In Azadi Bachao our Supreme Court upheld Treaty Shopping by relying on a book as the sole basis for its decision. The Court quoted with approval three long paragraphs from a book as constituting the core reasoning of its decision. The book had not been produced in the course of the judicial proceedings for forensic and judicial evaluation. . It was written by a Chartered Accountant who had been a partner for about 25 years in the infamous Arthur Andersen, and had close to his heart tax planning through the off-shore companies pretending to be residents in the tax havens, and many other areas of darkness with which our tiny planet is now littered. The author of the book, relied on by the Court, was clearly an interested person. The book was being written when the cause was before Delhi High Court, and it was published in 2002 under ISBN 90-411-9852-0 copy right in 2002. The author struck a note of caution when he advised the readers in the preface to the book:"The interested reader is advised to research them further, where appropriate" A reviewer commented with an appreciable perspicacity:

“With this in mind, [the author] is at pains to point out that any information he gives should not be used as the basis for providing advice without further consultation and research. The point is well made and taken in the Preface and Chapter One."

As the book was by an interested person the author's views deserved to be weighed and evaluated [AIR 1976 SC 2304; AIR 1973 SC 492] under the hot heat of specific forensic arguments. Law does not permit a judge's private research unless the outcome of such judicial endeavour is put across to the litigants to have their say thereon.

One point more. There may be cases where some contemporary issues need exfoliation and evaluation. It may justify a look into even the present-day publications.. But this must be done with caution, and with an evident sense of discrimination. The circumstances of publication, the worth of the publication, the credentials of the author, and the measure of the author's detachment must be taken into account. But in no case the publication of an interested person should be relied on for deciding a cause. Nothing is more paramount in judicial administration than the unfaltering duty to ensure that justice is also seen to have been done.


Basic Structure of Constitution: A perspective from the Ramayana

In the third leaf of the Triplet XIV, I suggested that" Someone should undertake a juristic study of Valmikiya Ramayanm". Towards its end of that I wrote:" The Ramayana has coherent ideas about the ‘basic structure' of the state's constitution. I would come to this in the next column." I resume that thread here; though the spatial constraints would not allow me do anything more than suggesting some points for the consideration of the researchers.

The doctrine of the "Basic Structure" of our Constitution was judicially evolved in Kesavananda Bharati v State of Kerala (1973), and was reiterated and revigorated in Minerva Mills Ltd. v. Union of India ,. It declares certain features of our Constitution so fundamental as to be beyond the limits of the powers of amendment.

In the Valmikya Ramayana (the Kishkindhakand) , Bali severely criticized Lord Rama's conduct in striking him with an arrow from a thick hide of foliage. In his comprehensive reply to assuage the dying soul, Rama explained his duty as the supreme wielder of public power. This duty emanating from his role could never be optional or discretionary. He said (my translation from the original Sanskrit text):

You might have done what I have done;
Manu in the Smritis has said two slokas
Which the great ones have accepted and followed;
I have acted the way they counseled.
If the king does not punish the derelicts,
He cannot but undergo the consequence of his sinful act.

His answer covers a whole Canto of the Valmikya Ramayana . Shri Rama considered Himself bound by the fundamental norms of Rights and Duties as set forth in Manusmriti . Under our tradition even God can be questioned. In sloka 35, he told Bali,"No need to get anguished. You have been killed in accordance with dharma . We are all bound by the prescriptions of the shastras ."

The constitutional polity, portrayed in the Ramayana, was founded on the principles of Dharma . It conceived in the universe a supreme moral order without which the instrument of Justice ( Themis) could not operate with sovereign majesty. Dharma meant, bereft of all details, the discharge of essential duties whatever be one's assignment. The concept of Dharma , as expounded through words and events mellifluously set forth in the Ramayana , implied the following essential features:

(i) What matters is not the king's edict but the prescriptions in the Shatras . How close is this to the idea of the supremacy of the Constitution which Chief Justice Sikri considered the first amongst our Constitution's basic features in his majority judgment of Kesavananda.

(ii) The Supreme Court considered the ‘republican and democratic' polity a pronounced basic feature of our Constitution. Generally anglophiles carry the notion that this protocol of polity, with its pedigree going back to the Greco-Roman era, is a western bequest to us. The Ramayana shows a polity under which the wielders of power are made wholly accountable to people. There was absolutely no ‘democratic deficit' in that system. Whilst this principle finds expression in several situations in the Ramayana , there was no concrete and demanding situation to illustrate its application. Its invocation is at the heart of the matter in the story of King Vena (vide Srimadbhagavad Mahapurana Skand IV, Ch. 14). The great King Vena was destroyed by the people's representatives because he forgot his duty to work for people's lokamangal (welfare), and had become in exercise of his power arbitrary, irrational, and unaccountable to Dharma . He was told by the august representatives of his realm:"The adhrma which you are practising is not good either for you or for your country." Right to revolt [and alter even the grundnorm of a polity ("the constitution"? ) ] is an essential incident of the people's innate sovereign political status and authority. The American Declaration of Independence is a quintessential statement of this power of the people. It said:

“That to secure these rights[ Life, Liberty and the pursuit of Happiness ], Governments are instituted among Men, deriving their just powers from the consent of the governed , That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it , and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

(iii) The syncretic culture about which the Ramayana speaks is more pro bono publico than our present-day ‘secularism' and egalitarianism whose combined spectrum surges from religious neutrality to outright public immorality. The system founded on dharma is surely not religio-centric. Dharma and ‘religion' are not the same. Dharma contemplates a disciplined and detached sense of observation with right understanding, an unfaltering duty to evaluate to see if the actions are for the weal ( subh ) of all, and an unflickering commitment to do one's duty as considered proper in responding to the demands of life's flux in these fleeting moments. . ‘Religion' may intersect with ‘dharma', but the history shows that it is often no more than a set of fossilized religio-cultural ideas evolved to meet temporal demands which are beyond the management through political edicts.

To end, I must say that the points I had made in the third leaf of the Potpourri of May 15, 2009, and those I have mentioned above, are merely suggestive and illustrative of the profound juristic potentialities of the study of the Ramayana. I wish someone abler than me would someday take up the topic for an in-depth research. - Links on Shivakantjha - Links on Shivakantjha

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