Mathews J Nedumpara
Article 141 does not sanctify Judicial Legislation
(as a clarification to a query)
Am not against the doctrine of “stare decisis et non quieta movere”, nay, precedents,but only against it being reduced to a great menace,nay, absurdity. The difference between ” res judicata” and “stare decisis” is forgotten. That is the real concern. What is done Today in the name of ‘precedent’ is to make past erroneous decisions which were binding only on the parties to the litigation, binding on all, even the posterity.
The authoritativeness of a judgment based on the strength of the bench belongs to province of res judicata. In ‘res judicata’, an erroneous decision is final and binding because what is determinative there is the strength of the bench and not reason. So far as ‘stare decisis’ or precedent is concerned, the strength of the bench has no relevance at all. What is a precedent is the ” reason for the decision “, and nothing else.
It is Palkiwala and other elite Bombay lawyers whom I refrain from naming, who have destroyed our justice delivery system. They were/ are worshipped as Gods .What they say is the Gospel. That is the unfortunate truth .They could mislead the people of this country to believe that judicial decisions are as binding as legislations, nay, even far more than that. Even the constitutional amendments which have received the assent of both houses of Parliament and majority of state legislatures are made subordinate to the view of a few judges who constitute the majority of the Bench. What a tragedy!
The doctrine of judicial review has been overstretched to such an extent that it has become a great threat to our democracy. It is high time the people of this country realise it and assert that they are the supreme legislature and what they enact through their elected representatives is the law of the land and no court has the power to defy their will. I believe that is what the founding fathers had envisaged. Can anyone dispute this? No.What is done today in the name of judicial review is nothing but naked violation of the very concept of separation of powers.
Let me make it abundantly clear, am not against precedent in its prestine sense; so too, am not against judicial review within its legitimate limits. But I don’t want to mince words; judicial legislation, nay, judicial supremacy which Palkiwala and other elite Bombay lobby propagated and continues to be propagated by his disciples is a real and imminent threat to our democracy.
In civil law countries the doctrine of “stare decisis” certainly exist. The concept has its foundation in the classical Roman law. In Roman law, precedent is a guidance and are not strictly binding unlike legislations which are absolutely binding. Truly speaking, it is no different in common law and to construe it otherwise, in my humble opinion, is wholly erroneous.