Many of us may not know our connection with the Roman law. Julius Caesar invaded Britain in 55 BC and England was under the Roman rule from AD 43 to AD 410. The Romans made many highways, some of which are in existence even today. I make a mention of highways because it has a connection with our criminal jurisprudence. In the early medieval days, all crimes were not considered as an offence against the king and his peace. Offences like treason, disseisin (seizing of land belonging to another) which affected the King's interest alone were considered as an offence against the state. Other crimes were regarded as mere tort, matters falling in the domain of the Baron's Court, Manorial Court, etc. Kings used to sell jurisdiction, which led to rapine and unjust judgements at the hands of private tribunals dispensing justice. This, among other reasons, led to the Barons revolting against the King and compelling him to issue the Magna Carta, the great charter, where the King undertook "Nulla vendemus, nulla negabimus aut differemus, rectum aut justitiam" - to no man will we sell, or deny, or delay, right or justice. A crime committed on the four highways built by the Romans was considered as a felony, triable by the King's Court, because it affected the King's interest. The Romans were ousted by Saxons (Germans) and they ruled over England till the Norman conquest of 1066 AD which period is known as the Dark Ages. The conquerors, led by [...]
Has not Article 137 of the constitution providing for review become otiose, so too, the curative jurisprudence created through judicial legislation, unknown to jurisprudence elsewhere in the world.
Mathews J NedumparaPresident, NLC98205 3542820.8.2021 One of the senior most members of the NLC, out of anguish that SLPs, review petitions and curative petitions are dismissed in one-line/stereotypical orders, preferred an application under the RTI Act seeking the data concerning the total number of petitions filed under each category, the average time taken for hearing and final disposal and the percentage of such petitions being allowed or dismissed. The Registry of the Supreme Court replied to him saying that the Court does not maintain any data concerning the same, even as to the number of matters dismissed or allowed. However, he did not give up. He sought the help of member of Parliament. And the said MP raised a question in the Parliament. The then Hon'ble Minister for Law and Justice answered the said query on the floor of the House on 3.2.2021 thus: In the 10yr period between 2011 to 2020 a)Review petitions (civil) dismissed- 19710Allowed- 92 b) Review Petitions (Crl)Dismissed- 6087Allowed- 48 c) Curative petitions (civil)Dismissed- 2155Allowed- 0 d) Curative petitions (Crl)Dismissed- 620Allowed- 3 So far as curative petitions go, I am not concerned. The curative jurisprudence itself is against the constitution, a judicial legislation, which no court has the power to do. I consider this mechanism to be in ignorance of the elementary jurisprudence. The court failed to comprehend the distinction between res judicata and stare decisis and mistook one for the other, which would be evident anyone who reads Hurra v. Hurra, by which judgment this [...]
Mathews J Nedumpara 98205 35428 11.08.2021 The common citizens, particularly, the informed section, are proud that we have one of the best and most comprehensive constitutions in the world. Our constitution has a specific chapter stating in great elaboration, the sacrosanct rights such as equality, freedom of speech and expression, life and personal liberty, faith and conscience, etc. By virtue of Article 32 when these fundamental rights are infringed, a citizen as a matter of right, is entitled to approach the Supreme Court directly without recourse to any other Court, though otherwise the law is that one shall invoke the jurisdiction of the lowest court of competent jurisdiction. The common people, even law students, budding lawyers, law professors and academicians believe firmly that the real courts function according to the set of constitutional and other legal principles. They believe that, that is the law. But seasoned lawyers and seasoned litigants know from experience that the constitution, the enacted laws and the settled legal principles are mere myth. The real law is what lawyers and judges do and practice in the name of law. The writ jurisdiction is asserted to be an entirely discretionary one. Article 136 of the constitution expressly states that "the Supreme Court may in its discretion grant special leave to appeal..". The equitable remedies like injunction commonly known as 'stay' are all discretionary. We follow the common law. Article 372 of the constitution says so. The common law has its foundations in classical Roman law. But the classical Roman [...]
-Mathews J. Nedumpara 1. Kerala, today, faces the curious scenario of the High Court ordering forceful takeover of the churches of the Syrian Jacobite Christians owing allegiance to the Patriarch of Antioch, in the purported implementation of the orders of the Supreme Court with many a bench of the High Court asserting that ‘rule of law’ being the very basic feature of the Constitution, the executive is dutybound to enforce the judgments of the Supreme Court, even if it would mean deploying central forces. The state government through none less than the Chief Secretary stated on oath that it is dutybound to implement the order of the Supreme Court, and it has taken possession of many churches using force and will continue to take over the remaining churches of the Jacobite faction, and hand it over to the Indian Orthodox Church headed by the Catholicos at Kottayam, that all that the government needs is some time to persuade the parishioners of Jacobite faction, which in the case of Kothamangalam Marthoma Church and many other churches, constitute to be 99 percent. The plea of the state is that as a democratic government, it cannot use force against the believers to drive them out of the church build by their forefathers and deprive them of their fundamental right of freedom of faith, conscience and worship. Still, it says it will implement the judgment, and it has implemented the Supreme Court judgment in large number of cases, instead of pleading that the contempt [...]
Rohini AminGeneral Secretary, National Lawyers Campaign For Judicial Transparency And Reforms07.08.20219372506858Hon’ble Members of Parliament and State Legislatures, Our constitutional democracy is founded on the principle that Parliament being the representative body of the people is Supreme. However, if a law enacted by the Parliament violates fundamental rights it is void being in violation of the very Constitution. There can be no dispute about it. However, abusing the concept of judicial review and through a mechanism called PIL which is against the very fundamentals of jurisprudence the courts have trenched into the domain of the executive and legislature. And as a result in matters which are not even justiable at all , the courts decision has become final as if the court is an appelate authority over the Executive and Parliament.The courts have no jurisdiction to intervene in matters of policy. Appointment of Judges is a matter of policy. Nobody's fundamental or legal rights were involved. However, sadly, the much needed reform in judicial appointments came to be thwarted using the PIL as a ploy. The will of the people reflected by the unanimous assent of NJAC by both the houses of Parliament and ratification by 21 states came to be substituted by the opinion of 5 judges! The NJAC was declared unconstitutional. What is most unbelievable and unfortunate is that the members of Parliament failed to respond to such a grave assualt on their domain. The members of Parliament did not react, may be because of partisan concerns or even of ignorance. Our [...]
-Mathews J Nedumpara Except a few, very few, all the SC and HC judges owe their office to their families and connections. Office of the Judges , so too "Sr.designation" are inheritance. Except a few nice souls, the majority think they are Kings and carry blue blood on their veins. Arrogance and pride is their hallmark. Now, like Kings they rule the country through "Suo motu" proceedings where they are the actor( plaintiff) and judex ( judge), both at once. Hypocrites like Dushant Dave and Prashant Bhushan by clamoring for "suo motu" action has been giving legitimacy for the naked violation of the constitution by the judges. What a shame!Who will tell the judges that their job is to adjudicate "lis" and the usurpation of the province of the executive and legislature is totally impermissible. Our AG and SG , both, have abdicated their constitutional duty to tell the judges that the "suo motu" proceedings which of late has become a regular feature is totally unacceptable. Can we expect that from our venerable Venugopal, Attorney General? He was there lending support to Gogoi when he initiated a "Suo Motu" proceedings to declare that he is innocent and that the lady who had accused him of sexual harassment is guilty of undermining the "independence of judiciary". Can we expect anything better from Tushar Mehta, SG who "bows down" before the judges at every suggestion from their mouths? What a shame! Friends, pray for country!
-Mathews J Nedumpara Prashant Bhushan's opinion (on Modi government's alleged writing off bad loans of big companies) is wholly faulty and is based on a common misconception. He should have, as a lawyer, studied the subject before attacking the Government. I say so, because the Government has no role whatsoever, at all.Banks are obligated to write off bad debts under the accounting standards which are mandatory. Banks write off thousands of crores of rupees every year. If they don't do so, their balance sheets will not disclose the true and fair state of its financial affairs. Bad loans, be it of Nirav Modi's running into thousands of crores or of a small trader, if not recoverable will have to be written off from the accounting point of view. Otherwise, banks will collapse.Government providing for the writing off the agricultural loans and the Banks writing off corporate bad loans are two entirely different things. Banks writing of bad loans doesn't mean they will stop all recovery steps. They will continue to take all steps to recover till the last penny is recovered. Writing off bad debts from the Accounting point of view and writing off loans as ameliorative steps are entirely different things. Nothing in common. Where the Banks give up all recovery steps and write off the agricultural loans, they won't have to bear the burnt because the Government will be compensating them by budgetary allocations. In reality, there is no write off of agricultural loans by the banks. The write off [...]
Syrian Jacobite Christians of Kerala had to suffer injustice only because eminent lawyers who conducted their cases were unfamiliar of the true ramifications of the concept of res judicata, res inter alios and stare decisis. (Read the synopsis of the Review Petitions by Sri. Nedumpara)
-Mathews J Nedumpara Synopsis The Petitioners are constrained to file this review, sadly, only because this Honble court, the Petitioners beg to submit with all humility and with utmost respect, failed to record the core of their contention that the instant church in question, and for that matter not a single out of the 1064 churches of the Malankara Syrian Jacobite Church, was a party to the Samudayan case which has culminated in the judgement of the 5-judge constitution bench of the Supreme Court, namely, AIR 1959 SC 31 and, therefore, the said judgement is not binding on the Petitioner church and others. Had this Hon'ble Court recorded the said contention, this Court would have certainly allowed the plea of the instant Review Petitioners. This Court has passed orders in favour of the Orthodox faction, directing forceful takeover of the instant Church and other churches on the sole premise that by virtue of the judgement of the Supreme Court of the year 1958, which was mistakenly followed as binding in the subsequent cases of 1995, 2017 and 2018, the so-called 1934 Constitution of the Orthodox faction was held to be binding. Sublato fundamento cadit opus - when the foundation is removed, the superstructure falls. The 1958 judgement was not binding on the instant Church or any one of the 1064 churches because none of the churches were a party to the suits culminating the 1958 judgement. Nobody can be bound by a judgement where one is not a party. That is the [...]
In the 11-13th century, the monarch was not very powerful. He had to depend on barons for support. The King did not interfere in the affairs of the barons who were even allowed to run parallel governance, even courts. As time passed every crime was taken as a breach of the King's peace and was to be tried by the courts which sat in sessions, appointed by the king. Of all the offences, sedition, namely, even expressing a wish for the death of the King, his wife or family members was considered to be sedition. Between law of contempt and sedition law of contempt which originated in the dark ages is even more unfair. While sedition cases are tried by jury/ judges who are independent and impartial, contempt cases are heard by the very same judge who assumed the role of the prosecutor and judge both. Though there has been a lot of discourse, which certainly a pleasant and admirable thing to happen against law of sedition, there has been very little discussion in the media about the need to abolish criminal contempt which renders any criticism, even bona fide as contempt of court
-Mathews J Nedumpara In the last two decades or so, we have often heard the elite lawyers in Delhi referring to the Supreme Court as constitutional courts which gives the impression to the common man that the Supreme court and High courts are the only courts empowered to interpret the constitution. The question is, in doing so, are they not committing a fraud on the constitution. I have, in my article titled, 'Ten myths of constitutional law', dealt with at some length of the falsehoods which have become gospel truths and to doubt which, is nothing but sacrilege. The foremost of such myth is that judicial review is the exclusive province of the High courts exercising its jurisdiction under Article 226 and the SC under Article 32. The necessary corollary thereof is that there is nothing like "judicial review of legislative and executive action" known to law in India prior to the Constitution coming into force. Is it true? The answer is an emphatic no. Soon after the first freedom struggle of 1857, the administration of India, which was under the control of the East India Company was taken over by the British Government by virtue of the Government of India Act of 1858. In England, the laws remained yet to be codified and the body of common law were to be found primarily from 4 sources, namely, Roman law, custom, statutes and precedents. The Government of India Act was not an ordinary law, but the defacto Constitution of India. The Government [...]