Have Articles 226 and 32 led to denial of Justice. Will repeal of it lead to injustice?
Mathews J Nedumpara
Ambedkar described Article 32 as the very heart and soul of the Constitution. Our founding fathers, many of whom were victims of illegal arrest and confinement, being part of the freedom struggle, incorporated in our constitution, Part III, fundamental rights. By virtue of Article 32 of the Constitution a citizen can approach the Supreme court for the enforcement of his/her fundamental rights and that very right to access the Supreme Court itself was declared to be a fundamental right. It is almost 70 years since the Constitution came into existence. I as a lawyer being in the bar for 36 years, so too the common man, wonder whether the said Article is of any relevance except to the super rich and powerful like TATA qua Radia tapes, Harsh mandar the messiah of the poor, Arnab Goswami and a few lawyers like Prashant Bhushan, Indira Jaising who are the self appointed guardians of public interest, whose only vocation is the institution of PILs on matters which fall within the exclusive province of the legislature and executive and strategically use the Supreme Court as a means to achieve their political objectives, fame, name and other collateral designs. Article 32 in my view, far from being an instrument of enforcement of fundamental rights of the ordinary citizen, has largely been reduced to being a tool in the hands of the mighty and the powerful to use court as an instrument for the advancement of their narrow designs. The vast majority of the Writ petition instituted in the SC are dismissed by one line orders. The manifest reason offered is that the judges are over burdened, and certainly they are, to write detailed judgments stating what the grievance of the litigant and the reasons why the relief is declined.
What is stated of Article 32 to a great extent is true about Article 226, except for High courts like Kerala. In Bombay High Court a petition under Article 226 does not even see the light of day for months or years, for practically only those cases which judges agree to hear in priority upon mentioning alone are heard. It cannot be denied that judges agree to hear cases out of turn at the request of senior lawyers or those who are perceived to enjoy great face value. Assuming that the cases of the ordinary lawyer is taken up for hearing, most of such writ petitions are dismissed on the ground of maintainability. For the benefit of an ordinary reader I must explain that unlike a suit, the maintainability of which no authority is required to be pleaded, for there is an inherent right of access to justice to institute a suit, writ petition is entirely discretionary. When a young lawyer who has taken up the cause of the common citizen is on his feet arguing a case under Article 226 he is confronted with a long line of queries, namely, a) whether he has an efficacious alternative ‘remedy’, meaning thereby whether he has any alternative forum, b) if he has, whether he has exhausted it, c) whether the respondents against whom reliefs are sought are a state or instrumentalities of the state, though Article 226 does not state that writ cannot be sought against a non-state respondent. The further question is whether the case pleaded involves disputed questions of fact which it is settled that is a sufficient reason to decline the plea. Assuming that the young lawyer representing the cause of a poor man is able to overcome these hurdles, then also, the admission of the writ petition is not guaranteed because the jurisdiction is considered to be extraordinary and discretionary. Assuming a young lawyer is able to overcome all these hurdles, then also, justice is a mirage for him because the court is under no obligation to consider and decide the various issues raised by him because unlike a suit no issues are framed, no oral evidence is allowed to be adduced for or against the rival claims. The adjudication is summary and in vast majority of the cases, the litigant is denied justice.
I believe the overwhelming majority of lawyers and litigants will agree with me on the above premise, namely, that a summary adjudication is a synonym for injustice. The question therefore is, what is the solution. Even the worst critics of the colonial raj admit that we inherited from the British a great legal system. Our High Courts, the Federal courts and Privy Council which was the supreme judicial tribunal during the British times, were held in high esteem for the quality of justice delivered- the fairness, impartiality, erudition and independence of the people who manned it. The great tribute which the Constituent Assembly paid to the Privy Council is the undeniable proof of the same. The point I am driving home is that Articles 32 and 226 has largely failed to render justice to the poor litigant because the jurisdiction which it exercises is discretionary, summary, which has meant that petitions are often dismissed in limine, sometimes even by judgements which do not exceed one sentence. Could we blame the judges alone for the calamity which Articles 32 and 226 have now been reduced to.
The classical Roman lawyers believed that a legal system which afford the least discretion to a judge, is the best and vice versa, the maxim being: optimam esse legum, quae minimum relinquit arbitrio judicis; id quod certitudo ejus praestat – that law is the best which leaves least discretion to the judge; and this is an advantage which results from certainty. Articles 32 and 226 can deliver justice only if the said proceedings are conducted in the manner an ordinary civil trial is conducted. The question therefore is, can the Supreme court under Article 32 be a court of original jurisdiction empowered and duty bound to adjudicate a lis before it by conducting an ordinary trial. The answer can only be an emphatic no. Yet, our Supreme court has allowed itself to be a defacto court of ordinary original civil jurisdiction entertaining petitions under Article 32. The classic example is the Sabarimala case, a so-called PIL by Young Indian Lawyers Association. The case involved intricate factual and legal issues which could have only been adjudicated by a civil court was entertained by the SC on the erroneous premise that the case involved a challenge to the constitutionality of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. (Para 53 of the judgement).
No less eminent a judge as then Chief Justice of India, Shri Deepak Misra entertained the PIL on the premise that a civil court has no jurisdiction to declare an Act of Parliament or a statutory instrument to be unconstitutional. The misconception that the concept of judicial review is the gift of the constitution and that before the constitution came into existence no fundamental rights existed is so widespread that it has become the virtual truth. My humble attempt is to disabuse this misconception which I believe I can in simple words.
Did the concept of judicial review exist prior to the constitution coming into force? The answer is an emphatic yes. When the Romans went to England, they took the Roman law with them. The Roman law together with precedents, statutes and customs became the common law. The British who came to India brought with them the common law, though the British East India Company did not interfere with the personal laws and customs of the Indians. With the taking over of the governance of India from the East India Company by the British Parliament by virtue of the Government of India Act of 1858 which was later substituted by the Acts of 1915 and 1935, common law became our law. The Government of India Act of 1935 was the constitutional law of British India. It provided for federal and state legislatures. The necessary corollary thereof is the introduction of the concept of ‘ultra vires’ which means that any federal law or provincial law which is in conflict with the constitutional law, namely the Government of India Act was liable to be declared to be unconstitutional. What was the procedure to secure such a declaration by a person aggrieved? At that time, we had three chartered High Courts, namely, the High courts of Calcutta, Madras and Bombay as a successor of the Supreme Courts of Calcutta, Madras and Bombay respectively and the High Courts of Lahore, Allahabad, Nagpur, Punjab, Pepsu etc. However, except the Chartered High courts of Calcutta, Bombay and Madras, none of the other High courts were invested of any writ jurisdiction. The writ jurisdiction of the High courts of Calcutta, Bombay and Madras did not travel beyond the Presidency Towns. However, the High Courts of Allahabad, Lahore, Pepsu, etc. which had no writ jurisdiction entertained pleas seeking declaration that the Acts of the federal and state legislatures, so too statutory instruments as ultra vires the Government of India Act, which is a constitutional Act. What was the means by which such a judicial review was sought? For the answer to the question, one need only refer to Order 27 A of the CPC, which was inserted by virtue of Act no. 23 of 1942. You will find that it was by means of an ordinary civil suit. The only limitation was that notice ought to be given to the Attorney General/Advocate General depending on whether the statute under challenge is by the federal legislature or provincial legislature.
We have borrowed the concept of fundamental rights, equality before law and equal protection of law and due process of law from US Constitution who inturn had borrowed from the Bill of Rights. The fundamental rights, though not christened as such, were part of the common law. The founding fathers by enacting Part III of the Constitution accorded it a place of pride. Article 13 (2) of the Constitution in categorical terms declare that a law which takes away or abridges the fundamental rights, to be void. Which means that if a fundamental right is violated, for the enforcement of the same, a suit for declaration, which is a substantive/constitutive remedy and an appropriate remedy which is procedural or executory in nature will lie. Prior to the coming into force of the constitution as aforesaid, remedies such as writ of mandamus, certiorari, prohibition, mandamus which were granted by the chartered High courts were by virtue of a suit. The writ of Habeas corpus was granted by virtue of Section 491A of the CrPC of 1898. In short, prior to the coming into force of the constitution, by means of ordinary civil suits, all the remedies which the High courts and Supreme courts grant today which are generally described to be in the discharge of the function of the Supreme court and high courts as constitutional courts, were readily granted . Before the Constituent Assembly undertook the discussion on the current Article 226, it undertook a discussion on draft Article 204, renumbered as Article 228 of the constitution. Article 228, which is in absolute disuse today, provides that ‘if the High court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, the determination of which is necessary for the disposal of the case, it shall withdraw the case and may a) either dispose of the case itself, b) or determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall in receipt thereof proceed to dispose of the case in conformity with such judgment’. The said Article was adopted after an elaborate discussion. What the founding fathers destined was that the ordinary civil courts shall as court of records of plenary jurisdiction, shall decide all questions of law and fact which is before it, including questions as to the interpretation of the constitution, leaving the discretion to the High court to withdraw to itself and decide questions as to the interpretation of the constitution. Article 226 was enacted from an entirely different angle. As indicated above, during the era of the East India Company, it was felt that the British citizens living in the Presidency Towns of Calcutta, Bombay and Madras shall be governed by the common law of England and with that view in mind, the Supreme Courts of Calcutta, Bombay and Madras were established under a charter of the Crown, vesting on it the powers and jurisdiction of the Kings Bench in England. That was the time when in England there were “two streams of justice, flowing together, the waters of which did not mix”, a metaphor for the two streams of administration of justice, namely, the Chancery courts and the Common law courts. The writ jurisdiction which the chartered High courts exercise were as successors of the Supreme courts and there was really no need for retaining that jurisdiction in the said high courts after independence because the civil courts as it stood before the coming into force of the constitution had all the powers to grant all kinds of remedies, be it common law, equitable or declaratory or called differently as constitutive and executory or procedural. The reason is simple. In England the two streams of justice merged into one by virtue of the Judicature Act of 1873 which was substituted by the Judicature Act of 1875. In short, Article 226, so too Article 32 were two Articles which were superfluous and ought not have been enacted at all. However, it came to be enacted because the prerogative writs exercised by the three chartered High courts had great glory and there came a question as to why the said prerogative writs should not be extended to other High Courts. The founding fathers couldn’t have imagined that one day Articles 226 and 32 will become a bane not a boon so far as enforcement of the rights of the common litigant is concerned.
The said extension of the writ jurisdiction appeared then to be a innocuous proposition and was readily acceded to. Let me not mince words, Articles 32 and 226 outlived its utility, while I concede that it did indeed have a great, benevolent role immediately after the coming into force of the constitution. Now however, it has become an instrument of little utility, an insignia of discrimination, for the ordinary lawyer whom a common litigant engages, is baffled with the limitless hurdles he has to face, namely that no writ will lie on questions of fact, that no writ will lie against a person who is not a state, that he has not exhausted alternative forums, often incorrectly referred to as ‘remedy’, that the jurisdiction is extraordinary and discretionary and not a matter of right, while a powerful litigant, who can afford to engage a celebrity lawyer faces none of these questions.
Let me conclude, the lawyers are unhappy because the judges hardly afford them a hearing, the litigants are unhappy because cases involving even their very lives and liberties itself, involving their business, even residential homes are rejected by judges exercising their jurisdiction under Article 226, summarily, devastating them. What I have noticed is that if a litigant were to be denied of his very life, liberties and property after a fair trial where he had the opportunity to raise all the issues, lead evidence in support of his case, so too to contradict the evidence appearing against him, and a detailed judgment is delivered dealing with all the issues raised, then even if he were to lose the case, he is not dissatisfied. He is left with the feeling that justice has been done and a provision for appeal gives him an assurance that there is room to secure correction of the error of the judicial decision. Articles 226 and 32 are often equated to gambling where high profile lawyers with face value can make a difference, atleast the perception being so will destroy the institution of judiciary beyond redemption. We have to go back to the days of the our colonial masters. There is nothing wrong in accepting whatever is good as their legacy which undoubtedly the legal system we inherited from them is. The English Legal System is founded on the legal principle ‘ubi jus ibi remedium’- where there is a right there is a remedy, and access to justice was considered to be the birth right of a subject. We inherited from them the ordinary civil court of plenary jurisdiction empowered and duty bound to embark upon an enquiry on any controversy under the sun. And to grant legal and equitable remedies. Articles 226 and 32 took away the prestine glory of the civil courts. They are the real constitutional courts of original jurisdiction. It is in a state of extreme neglect and decay. We need to restore its prestine glory and put to use Article 228, and that is the only and simple solution for making justice really accessible to the common man.
Mathews J Nedumpara