Simple solution for reducing pendency of cases is to do
away with “precedents” nay, repeal of Article 141 of the
Mathews J. Nedumpara
“Simple things can be done in simple ways;
Hard things too can be done in simple ways;
But it requires an inventive brain
And can be done without much strain”
- The above words of a poet, I believe, should be the guiding lamp when we think of judicial reforms. There are two streams of administration of justice, one, the civil law system followed in the European continent and the Latin America, and the other the common law system followed in UK, India, America and other common law countries. While in the civil law system the problem of arrears of cases poses no threat to the administration of justice, the demon of arrears threatens the very survival and legitimacy of the administration of justice where the common law is followed, in particular, in India.
- Both the common law and the civil law systems are founded on Roman law. The major difference is that while in common law countries even a single judicial decision is a binding precedent, in countries where civil law system is in vogue, a Judge of a lower Court is not bound by the judgment of a superior Court. In countries where civil law is followed, the Judge decides the case according to the statute and text books of erudite authors, subject to the same to be corrected by the superior Court. On the contrary, in countries where common law is followed, lawyers and Judges spend enormous time to find out what is the law applicable, which would mean consuming days and days to discuss a precedent. This would also mean, in contrast to countries where the civil law is followed and where judgments are brief and largely based on facts alone, that in common law countries, discussing what the law is, the judgments running into thousands of pages. The classic example is the judgment in Kesavananda Bharati, which has half a million pages, so too the judgments in the recent Aadhar and NJAC cases, both close to the judgment in Kesavananda Bharati.
- In England, at one point of time, precedent was considered very useful because statutes were in a very rudimental form, in pieces/scratches. The consolidation and codification process by the British Parliament in the last more than a century, however, meant far less relevance for precedents. The supremacy of the Parliament in England is readily accepted and, therefore, the Judges decide cases according to the Act of Parliament. On the contrary, in India, our Courts pay scant respect to
statutes, nay, even the Constitution. Our Judges even rewrite the Constitution as they did in Judges-2 case to bring in the collegium system of appointment of Judges where they appoint themselves.
- It is Article 141 of our Constitution, which is nothing but restatement of the judgment of the House of Lords in London Street Tramways Co v. London County Council  AC 375 (HL), which meant the Courts becoming the rule-makers, even prevailing over express constitutional/statutory provisions. Article 141 has literally meant Judges to be the supreme legislature, executive and adjudicator, all at once, and the supremacy of judicial decisions, which came out in thousands of pages every day, has reduced the law to a total mess. Nobody knows what the law is. Days and days are spent by Courts for deciding a case in their endeavor to find out what is the law applicable, referring to precedents after precedents. What is most startling is that it is difficult to mention even one principle which the Supreme Court has evolved since its existence in 1950 where none existed and, therefore, it became necessary to evolve one for the first time to resolve the controversy which arose before it, which could be a precedent binding on all Courts and Tribunals under Article 141.
- The Government with a view to reduce the arrears and to simplify laws, had in the recent past repealed large number of defunct laws. But that has not helped at all in solving the problem. G.W Paton in his book on jurisprudence written in the 1940s had lamented the calamitous situation of the law to be applied to be found from 2 million reported cases. We don’t have the exact statistics or the number of reported judgments. We could easily exceed the 2 Million mark.
- The prescription for the malaise, the demon of arrears, is repeal of Article 141 and do away with the concept of precedent, except where reliance on it is absolutely necessary, which would mean the Courts being able to decide intricate issues relying on pure statutory provisions, leaving the legislature to fill up the gaps and, in the worst scenario, the Court to fill up the interstice.
Mathews J. Nedumpara,
National Lawyers’ Campaign
For Judicial Transparency and Reforms