Supreme Court and Amendments to the Constitution

(By Justice K.T. Thomas, Former Judge of the Supreme Court of India)

There are reports in the media that the Supreme Court and the Union Government are now engaged in arriving at a solution to diffuse the impasse created as sequel to the five Judge bench verdict which over turned the Constitution 99th Amendment (called ‘the NJAC judgment’). I felt earlier that with the culmination of the marathon exercise involved in Kesavananda Bharathi (1973) 4 SCC 225) the Indian Constitution will ever remain unimpaired. It was a great solace to the Indian citizen that no Parliament in future can destroy the basic features of the Constitution of India. But the majority verdict in the NJAC case (2015 (4) KLT SN 121 (C.No.154) SC - Supreme Court Advocates-on-Record Association v. Union of India) has portended the dangerous extent to which the sword of Kesavananda Bharathi could be swung by semantic exercises even against seemingly harmless mechanism provided by the Constitution using the amending power for appointing the Judges.

The majority judgment in NJAC case administered a warning that even three judges are enough to chop down any amendment of the Constitution disliked by the judges of the Supreme Court, no matter such amending law had the backing of the entire Parliament and the entire federal units of the Republic of India. Parliament’s constituent power is shown to be powerless in adopting an alternative mechanism to the collegium system, which was, in fact, created by the judges themselves through two judgments, and which is, indisputably, riddled with serious flaws. The perils highlighted by Justice Kurian Joseph are almost a testimonial pointing to the nadir to which the collegium system has plummeted over the years. Yet, learned judge joined the other three judges to strike down the Amendment on the premise that independence of the judiciary is safe in the collegium system but will be destroyed by the new alternative adumbrated in the Amendment.

The silver lining discernable from all the separate judgments is the finding that independence of the judiciary is a basic structure of our Constitution. But on the question whether the Amendment has destroyed it, one of the judges (Justice Chelameswar) advanced strong reasons to hold that it has not, while the rest found it has. The result is the revival of the flawed system.

When pointed out that the Amendment secured near hundred per cent support from the Parliament and from the entire federal units as has been envisaged in the Constitution, the majority judges held that all that is not enough to protect the Amendment. I have no dissent over that approach provided the Supreme Court could discover through the judicial review that the Amendment destroys the basic structure of the Constitution. Unfortunately, no effort was made to chisel down/expand/restrict the dangerous potentialities of the Amendment, even assuming that it did have. It would have been judicial statesmanship to show creativity by protecting the Amendment instead of whipping the weapon of destruction, a la judicial invalidation.

It is an enigma why the Five-Judge Bench did not refer this momentous issue to be decided by a much larger bench, at least larger than the bench that created the collegium system, so that the Supreme Court could re-evaluate the judge made mechanism. From media reports I learned that a plea was raised by the Bar for adopting such a course, and the bench observed that the plea would be considered later. Of course, if the Amendments were upheld, it would be a different matter; but when it appeared to the judges otherwise, it was only proper that such an issue of great immense importance ought to have been decided by a larger bench.

The reasoning shown by the majority judges that the presence of even a single member of the executive would erode all the independence of the judiciary is far from convincing. Examples of constitutional institutions like Election Commission, Comptroller and Auditor General and the Parliament created instrumentality. Vigilance Commission, are also meant to be independent, but the fact that they are appointed by the executive alone was not counted by the Constitution makers as capable of impairing the independence of those institutions. The reasoning that EC and CAG, etc., are different from judiciary is quite unimpressive, to say the least. The question whether such instrumentalities, too, could function independently in spite of the executive role in their appointment was not addressed by the judges in the majority. Independence of judiciary is in the sphere of functional performance, as its requirement is in the post appointment years. Protection provided for judges, as for removal, payment of salary, etc., are also provided for the other institutions, such as EC and CAG.

Majority opinions adversely viewed the presence of two members of the civil society mainly on two grounds: First is the concept of “eminent persons” was not defined; second, the concurrent view of any two persons could effectively veto the majority opinion. But both reasoning is untenable.

At any rate, the reasons offered in the majority opinions are too fragile and tenuous to overturn the constitutional provisions. We should not overlook the reality that unity of two persons in the NJAC could only have prevented the selection of a person from becoming a judge. Such a unity cannot enable an ill-suited person for appointment. Is it not a safety measure to prevent an unfit person from reaching the Supreme Court Bench, even at the risk of its maximum demerit that a suitable person is not being selected? Similarly, the presence of one executive representative, none other than the Union Cabinet Minister for Law, should have been welcomed wholeheartedly, particularly when the role of the executive in the selection of judges in all other democratic countries is of a much higher dimension.

Nevertheless, what should not have happened has happened. We can learn a lesson for future. Is it safe for parliamentary democracy to persist with the power of even a unity of just three judges striking down a constitutional provision on the premise that it violates the ratio of Kesavananda Bharathi case.

I wish to make a suggestion for consideration. Whenever it appears to the Supreme Court in future that the validity of any Constitutional provision requires to be decided on the touchstone of basic structure doctrine, the same shall be decided by a bench of at least the size which decided Kesavananda Bharathi case. This can be achieved through amendment of the relevant Rule by the Supreme Court itself in the exercise of its powers under Article 145(2) of the Constitution of India.

A Passage to the Calicut Court

(By K.V. Narayana Menon , Advocate, Calicut)

Going down memory lane I came across one of the most unforgettable moments in my professional career. It concerns one lawyer’s amazing mission to the local court, which exalted the nobility and dignity of the profession to a high point of professional ideals. It all happened in the District and Sessions Court, Kozhikode more than half a century ago.

Strolling through the corridors of the court buildings a flash news filtered out in the Calicut Courts premises that K.V.S. is coming to the District Court next Saturday.

I knew that K.V.S. was the acronym for K.V.Suryanarayana Iyer, then practising in the Kerala High Court. He was the doyen of the Calicut Bar before he was selected as the first Advocate General of the Kerala State. He holds the unparalleled record of being the President of the Calicut Bar Association for seventeen terms.

The news was true. K.V.S.was appearing for the appellant in a matter of high stakes in a Civil Miscellaneous Appeal before the District Court.

Law apprentices , junior lawyers and even seniors had occupied the second and the third rows of the District Court on the day fixed for the case , long before the Duffadar announced ‘silence please’ in his crude booming voice, (unlike the soft announcement of the umpire in the Wimbledon finals ‘quiet please’).

The District Court was virtually overflowing like the Brabourne Stadium in Bombay (as it then was) witnessing the India v. West Indies test, led by Garfield Sobers !

The floor of the District Court was of polished wood, echoing the thudding of the shoes. To share a public secret, the court hall was the dance hall of the European elite of yester years. Painted on the wall above the seat of the Judge was the logo “Fiat Justitia Ruat Coelum” which translates as “Justice shall be done though the heavens fall”. I had managed to occupy the second row with great difficulty just behind the cynosure of all eyes, K.V.S. His personal portable and foldable table was set up before him, which itself was a curiosity for all of us. Today most courts have small lecterns of different shapes and sizes contributed by the Bar Associations.

As the Judge came up the steps from his chambers, the multitude stood up in respectful silence and as soon as he occupied his chair, there was a rustle of silken gowns as the counsels also sat down. After the calling work, the Civil Miscellaneous appeal of K.V.S. was taken up as the first case, as a well deserved recognition of the status of the senior counsel, considered as the first among equals. Lean, tall, with a close crop of silvery hair, counsel was impeccably dressed, the senior gown partly covering the senior jacket (which might be mistaken for a waist coat because of its peculiar shape) though it was the height of summer in the city of the Zamorins. The argument advanced from a scholarly and systematic analysis of the principles of the law governing the grant of an injunction, delved deep into the factual matrix and concluded with an impassioned plea for vacating the injunction granted by the Trial Court. Like Sobers at the crease, K.V.S. showed his excellence in the field of law. He was effortless and flawless.

My mind wandered way back to 1886 when F.H.Wilkinson presided over the District Court of South Malabar [which came to be Calicut, later] sitting on the same chair. He was also the First President of the 130 years old Calicut Bar Association (then known as Wilkinson Law Library). The coincidence and contrast in K.V.S., who was the Past President of the Association for nearly two decades arguing, facing the same chair where the first President of the Calicut Bar Association sat was strikingly beautiful. This ends to underline that there is no indelible line dividing the Bar and the Bench.

On the opposite side it was P.N.Krishnankutty Achan from Palghat. Comparatively young, energetic with neatly combed and glistening black hair, a dusky complexion and a chiseled face, Achan had won the case in the lower court by his pleasing, pleasant and yet powerful presentation. Polite and with an endearingly bashful smile Achan had also won the hearts of all the lawyers in the Calicut courts even at his maiden appearance in the Sub Court.

Achan’s reply in resonant voice reverberated in the four walls of the District Court. In short the performance from both sides was exemplary. The crowning moment of the professional excellence and courtesy came when K.V.Suryananrayana Iyer who must have won innumerable battles in his long career, after a formal reply to some of the factual details, openly paid encomiums to Krishnankutty Achan for his masterly performance. This was a demonstration of the nobility of the profession, humility of those who are truly great, and an unforgettable encouragement to the Junior section of the bar to which, I then belonged.

For me the astonishing aspect of the episode was the generous encomiums showered on a junior lawyer on the opposite side in the last part of his reply by KVS. The Nawab of Palghat no doubt richly deserved the encomiums.

When K.V.S. showered encomiums on a young lawyer like Achan for his splendid performance, it was as momentous an event as Sir Donald Bradman paying warm tributes to Sachin Tendulkar. An amazing mission of a lawyer was completed when the two lawyers shook hands before they left the court house. I was thrilled to applaud at that moment, when the nobility of the profession was thus upheld. I share that excitement with the new generation of lawyers even after 55 years.

The High Court Library – A Thing of the Past !

(By  Bechu  Kurian  Thomas, Senior  Advocate,  High  Court  of  Kerala)

Ram Mohan Palace, was built in 1935, overlooking the backwaters with a private boat Jetty. The Palace was built as the Viceregal Guest House. History records that Ram Mohan Palace was used as a Military Hospital during World War II and later as the Secretariat of the State of Cochin till 1949. In 1949, it became the seat of the High Court of Travancore – Cochin State. After the State of Kerala was formed in 1956, under the States Re-Organization Act 1956, High Court of Kerala had its seat in Ernakulam and functioned in the Ram Mohan Palace. It is also recorded that after construction of this baronial mansion, it became quite enchanting, that, an entrance fee of Rs.1/- had to be charged for restricting the endless flow of visitors to the building. 

On my first visit to the Ram Mohan Palace, way back in 1985, to witness the swearing in ceremony of a Judge, I was awestruck not only by the procession of well groomed black robed gentlemen escorted by colourfully attired maze bearing men walking towards ‘Court Hall No.7’ but also by the sheer grandeur of the Ram Mohan Palace. While watching the ceremonial procession, I was attracted to an imposing edifice, situated near ‘Court Hall No.7’ and almost at the Centre of the Palace buildings. A peek into that edifice, I was amazed at the plethora of books arranged. I could not gather the courage, then, to take a stride inside, for in those days, books were an anathema to me.

Years later, on my first visit to the High Court of Kerala as a novice in the black robed profession, I entered that magnificent edifice which bore an insignificant wooden board containing an even insignificant word. ‘Library’, written at the entrance. The imposing edifice, contrary to the diminutive board that identified the structure, housed one of the most important organs of the temple of justice – The Kerala High Court Library.

From the Halsbury’s Laws of England to Corpus Juris Secondum, from Law Journals of a small State like Rangoon to that of the Privy Council, from Statutes of 1800’s to the most latest, the High Court Library contained an abundance of books.

Learning the letter of law became a thing of joy inside the library. There was not a single day in my early days at the High Court, without traversing the narrow corridors of the library, made even narrower by the rows of shelves arranged one after the other. The smell of books mixed with the stench of dust, though irritating at times, were generally inspiring. Sitting at a nook of the Library on odd shaped ladder cum chair, gave a strange feeling. To climb the stairs to the third floor of the library, though daunting, was nevertheless invigorating. Amidst the time spent on research, the junior lawyers had the opportunity to even eavesdrop into the conversation of the giants of the profession happening at the ‘round table’ on the ground floor. The table adjoining the ‘round table’ gave an opportunity to the raw junior Advocates to sit beside those giants who, used to discuss anything and everything under the Sun. I have looked with awe the likes of S. Narayanan Potti, P. Sukumaran Nair, PNK Achan, TRG Warriyer, K.C. John, T.P.Kelu Nambiar and many others doyens of yester years sharing a lighter moment around the round table and even discuss inspiring legal points.

Access to journals, texts and other authorities were extremely easy. The manner in which the books were arranged, the aesthetics of the building and the easy access to the books, I felt, created a passion in every junior Advocate to read. The very sight of the High Court Library situated in the Centre of the Court Complex generated an eagerness to read in every Advocate who set his foot there. G.K. Chesterton, the English Author, Poet and Philosopher once remarked that “There is a great deal of difference between an eager man who wants to read a book and a tired man who wants a book to read”. I am certain that the High Court Library had a great role to play in creating eagerness in those doyens of the Bar of yester years as it would have instilled in them an eagerness to read. Of course I am wary of the fact that, reading, in times of digital era and digital content is changing. Still, the sight of books and its availability is no less invigorating. For most, the sound of turning the pages of a book and its stench creates a passion to read, much more than swiping a finger across a ‘tablet’ or dragging a ‘mouse’ down.

Change has been the buzzword all over the World. Change is also intended positively. Unfortunately change has visited Ram Mohan Palace in the last two decades but with a negative impact. The Palace which overlooked the backwater has lost its scenic beauty with the backwaters being pushed back due to land reclamation and odd-shaped concrete structures blocking its view. The private Boat Jetty of Ram Mohan Palace has changed into an entry to the tarred road in front and not a droplet of water is visible from any part of the Ram Mohan Palace. The seat of Justice of the State also shifted from the baronial mansion to an eight storied structure. With glass and steel mixed with bricks, the new building cannot boast of any Architectural theme, to house the highest Court of the State. Though the structure and the arrangement of Court halls spread over eight floors are disappointing more disheartening is the library in the new High Court buildings.

From a magnificent library in the Ram Mohan Palace, the High Court Library was shifted to a ‘small’ room in the new Complex that too in an insignificant part of the building. The High Court library lost its glamour. Access for lawyers to the books became restricted. Has this been the reason for the downward trend in the legal prowess of lawyers - I wonder. It is a pity that when the new 8 storied structure was designed, there was no provision for housing the High Court Library. Restricted accessibility for the lawyers to the text books also creates hurdles in stirring the legal instincts and developing the legal aptitude.

The design flaw and lack of planning and vision in the High Court building has provided only a very restricted space to accommodate the books and hence the books are kept in different areas and rooms. Lawyers have access only to one of the rooms of the Library and books from the other rooms can be obtained only after a request is given to the librarian who will then send a staff to fetch the book. However courteous and helpful the staff in the library are, still there is no better joy for an avid reader than to rummage through the books on the shelves of a library and select the relevant one. The old Library provided such pleasures too for the Advocates, while the present Library deprives even that. It is a sad plight for the great library. The number of black robed members of the noble profession visiting the High Court Library is dwindling down drastically. The Kerala High Court Library is slowly becoming a thing of the past !

Yet Another Instance of Conflicting Verdict

(By V. Ramkumar, Former Judge, High Court of Kerala)

If a Judge is of opinion that the interpretation of a legal provision by another Judge in a reported verdict, is erroneous, then, in the absence of a binding precedent to the contrary either by a larger Bench or by a Superior Court, judicial discipline demands that he refers it to a Division Bench through the proper channel. Instead of adopting that course, if the second Judge considers himself to be intelligent enough to tread a different path, it is the system which suffers. That is precisely what happened in the case of Rule 26 of the Criminal Rules of Practice, 1982 (Kerala) which reads as follows:-

“26.Complaints against Police Officers not to be referred to the Police:--
A complaint against a Police Officer shall not be referred to by a Magistrate under Section 202 of the Code to any person other than a Magistrate subordinate to him”.

2. In the first place, after the integration of the Magistracy in this State with effect from 1.1.1992 whereby the Courts of the Magistrates of the Second Class were abolished and there exist only the Courts of the Judicial Magistrates of First Class, besides the Courts of the Chief Judicial Magistrates. There is no Magistrate Subordinate to the Judicial Magistrate of the First Class in the State of Kerala from 1.1.1992 onwards. Hence, Rule 26 may have to be amended suitably.

3. That apart, interpreting the very same rule as it stands now, way back in the year 1998, Justice P.V.Narayanan Nambiar held that the principle behind Rule 26 is that Police Officers who conduct an inquiry will be very slow in finding fault with their colleagues or subordinates and the apprehension in the mind of the complainant that he will not get justice will still be there no matter whether the inquiry is conducted by the officer-in-charge of the Police Station or by a superior Police Officer. The views of the other High Courts in this behalf were also noticed by the learned Judge. (Vide Jessy Jacob v. State of Kerala (1998 (2) KLT 554). No doubt, in that case the complaint was forwarded to the Police under Section 202 Cr.P.C. Taking cue from Jessy Jacob (supra) Justice K. Padmanabhan Nair held in Superintendent of Police, C.B.I. v. State of Kerala (2005 (3) KLT 823) that although at first blush Rule 26 would seem to apply only in cases where the Magistrate proceeds under Section 202 Cr.P.C., the principle thereunder is also applicable to a complaint forwarded to the Police under Section 156(3) Cr.P.C. at the pre-cognizance stage. (See paragraphs 17 and 19 of the reported decision).

4. Now another learned Judge of the Kerala High Court in Balachandran v. State of Kerala (2015 (4) KLT 907) has held that the interdict under Rule 26 is applicable only in the matter of investigation by the Police under Section 202 Cr.P.C. and is inapplicable to an investigation under Section 156(3) Cr.P.C. The learned Judge has hastened to add that the reasons which weighed with him were not brought to the notice of the learned Judge who decided Superintendent of Police, C.B.I. v. High Court of Kerala (supra). The learned Judge has observed as follows:

“The report filed after completing the investigation under S. 202 of the Code forms part and parcel of the proceedings under S. 202 of the Code. Therefore, the complainant will be having no option to exclude the materials collected during the course of investigation by the police under S. 202 of the Code. Therefore, there will be apprehension in the mind of the complainant that the investigation conducted by the Police will not result in collection of materials against a Police Officer correctly. On the other hand, in the case of an investigation under S.156(3) of the Code, the Police is having the power to file final report under S.173(2) of the Code. Even if a refer report is filed under S.173(2) of the Code, the remedies of the complainant to proceed further will not be exhausted. The complainant can file a protest complaint or to seek the assistance of the Court for further investigation under S.173(8) of the Code. In other words, even after filing the final report by the Police, the complainant is having options to get his grievance redressed through the Court of law. However, in the case of investigation under S.202 of the Code, the remedies of the complainant will be foreclosed, as the materials collected during the course of investigation will form part of the enquiry under S.202 of the Code. The Court is also not empowered to go back to the pre-cognizance stage, even if a report negating the case of the complainant is submitted by the Police Officer to save his colleague or subordinate, as S.202 of the Code applies at post-cognizance stage. Therefore, even the powers of the Court will be restricted once a report is received under S.202 of the Code, as the direction for investigation under Section 202 of the Code is for the purpose of determining “existence of sufficient ground to proceed”. That may be the reason why Rule Committee of the High Court decided to incorporate R.26 in the Rules that a complaint against a Police Officer shall not be referred to by a Magistrate under S.202 of the Code to any person other than a Magistrate subordinate to him. The Rules Committee of the High Court was well aware of the two provisions empowering the Magistrate to forward the complaint to the Police for Investigation, which are Ss.156(3) and 202(1) of the Code. Even then, the Rules Committee excluded S.156(3) of the Code from the purview of R.26 of the Rules. The said exclusion seems to be not accidental or due to oversight, but was deliberate. Since the provisions of R. 26 exclude S.156(3) of the Code from the purview of R. 26, the powers conferred by the Statute on the Magistrate under S. 156(3) of the Code cannot be taken away under the said Rule. It is true that the heading of R. 26 is a little confusing. However, the provisions of R.26 are clear and unambiguous that the said provisions are applicable only to the investigation by the Police under S.202(1) of the Code. When the provisions are clear and unambiguous, no other interpretation is permissible. Therefore, if any restriction is imposed, in the absence of any provision in the rules, on the powers of the Magistrate under S.156(3) of the Code, that will tantamount to curtailing the powers conferred by the Statute without any sanction of law, which is impermissible. The above aspects were not brought to the notice of the learned Judge when Superintendent of Police, C.B.I. v. State of Kerala (supra) was decided and consequently, the learned Judge had no occasion to go through the said aspects”.                 (emphasis supplied by the author)

5. In my humble view, the above reasons are hardly sufficient for taking a different view since there is no verdict either by a larger Bench or by a Superior Court taking a contrary view. The three-Judge Bench of the Apex Court in Ramdev Food Products Pvt.Ltd. v. State of Gujarat (2015 (2) KLT SN 65 (C.No.77) SC =AIR 2015 SC 1742), relied on by the learned Judge has not decided this issue regarding the desirability of forwarding to the Police under Section 156(3) Cr.P.C. a complaint in which a police officer is an accused person. I fail to understand the role of any Rule Committee of the High Court deciding to incorporate Rule 26 in the Criminal Rules of Practice. The Rule Committee constituted under Section 122 Cr.P.C. is to recommend to the High Court to amend the Schedule to C.P.C. The said Rule Committee has no power to frame or amend the Criminal Rules of Practice. The said Committee is called the Rule Committee and not the “Rules Committee”. It is understood that there is a Rules Committee in the High Court in relation to the High Court Service Rules. But this author is not aware of any Rules Committee for recommending amendments to the Criminal Rules of Practice.

6. It is only a rule of prudence that in cases where a Police Officer is an accused, the matter is not ordinarily forwarded to the Police under Section 156 (3) Cr.P.C. at the pre-cognizance stage or under Section 202 Cr.P.C. at the post cognizance stage in view of the possible clannish or departmental bias. In such cases it would be better if the Magistrate takes cognizance and himself conducts an inquiry under Section 202 Cr.P.C. The Cr.P.C. does not prohibit the forwarding of such complaints to the Police for investigation either under Section 156(3) Cr.P.C. or under Section 202 Cr. P.C. The interdict against forwarding such complaints to the Police is only in the aforesaid Rule occurring in the Criminal Rules of Practice framed by the High Court. Essentially much depends upon the apprehension of the complainant in case his complaint were to be forwarded to the police either under Section 156 (3) or under Section 202(1) Cr.P.C. The Magistrate is the best Judge in that behalf. If one of the accused in the complaint is a police constable attached to some remote police station not within the jurisdiction of the Magistrate and the Magistrate considers that the officer-in-charge of the Police Station within whose territorial limits the alleged occurrence took place, will fairly conduct an impartial investigation and the complainant also does not entertain any apprehension in forwarding the complaint to the Police, nothing prevents the Magistrate from forwarding the complaint to the officer-in-charge of the Police Station. In fact, in Balachandran’s case (supra) the Magistrate had forwarded the complaint to the Station House Officer under Section 156(3) Cr.P.C. and the latter had charge-sheeted the sole accused who was a police officer. It was the accused Police Officer who approached the High Court challenging the investigation by the SHO by placing reliance upon Rule 26. In my view the learned Judge rightly rejected his contentions. All that was necessary in that case was to say that Rule 26 was a provision for safeguarding the possible apprehension of the complainant and not the accused. But instead, the learned Judge strayed into unnecessary fields to hold that Superintendent of C.B.I. v. State of Kerala did not take into consideration the aspects which were highlighted by the learned Judge. In that process, two conflicting views regarding the applicability of Rule 26 have come into existence resulting in confusion in the world of stare decisis.

7. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with this end in view i.e., to achieve consistency in judicial pronouncements that Courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by Courts, then there will be chaos in the administration of justice. (Vide Govt. of A.P. v. A.P. Jaiswal (2001) 1 SCC 748 = AIR 2001 SC 499); Supreme Court Advocates Association v. Union of India (1993) 4 SCC 441 = AIR 1994 SC 768); Indra Sawhney v. Union of India (1992 Supp. (3) SCC 217= AIR 1993 SC 477); G.C. Gupta v. N.K.Pandey ((1988) 1 SCC 316=AIR 1988 SC 654). No Bench of the High Court can comment on the functioning of a co-ordinate Bench of the same Court, much less, sit in judgment as an appellate Court over its decision. That which could not be done directly could also not be done indirectly. Otherwise, a party aggrieved by an order passed by one Bench of the High Court would be tempted to attempt to get the matter re-opened before another Bench and there would not be any end to such attempts. Besides, it may not be consistent with judicial discipline which must be maintained by Courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary. (Vikramajit Singh v. State of M.P. (1992 Supp. (3) SCC 62 = AIR 1992 SC 474).

8. Any attempt to distinguish a previous judgment on the ground that there was no elaborate discussion and, therefore, no reasons are discernible, is clearly violative of judicial discipline. (Vide Special Deputy Collector (LA) v. N.Vasudeva Rao ( AIR 2008 SC 944).

The resultant position is that we have one reported decision which says that the embargo under Rule 26 is applicable while forwarding a complaint for investigation both under Section 156(3) Cr.P.C. as well as under Section 202 Cr.P.C. and another reported decision which says that the interdict under Rule 26 applies only while forwarding the complaint under Section 202 Cr.P.C. and it is not applicable while forwarding the complaint under Section 156 (3) Cr.P.C. Can the option to distinguish between the two interpretations and to adopt the appropriate decision be left to the legal practitioners and the Courts dealing with the matter ?

Law and Commonsense*

(By P. Chandrasekhar, Advocate, Attorneys Alliance, Law Firm, Ernakulam)

Bogdan Barbulescu is a Romanian citizen. He was an Engineer in a private company in Bucharest, Romania. The company sent him out of employment for violating company’s internal regulation. The regulation had prohibited use of company’s computer and internet account for private communications. The company had monitored use of its computer and internet account by Barbulescu and found that he had been misusing them for chatting with his brother and fiancee. The action of Barbulescu against the company failed in the local courts in Romania. He therefore moved European Human Rights Court (ECHR) on the ground that his right to privacy and family life protected under European Human Rights Convention had been infringed. The ECHR found nothing wrong with the decision of the local courts1. Next day, an English newspaper, Daily Mirror, carried a news report: “Your Boss can now officially monitor your WhatsApp messages”2. That was not what ECHR had exactly said. What the Court said was that the local courts having struck a fair balance between the right to privacy and family life of the applicant and the interest of the company, the decision did not warrant interference. Apparently, the company had monitored the conversations of the employee with his consent and approval and it was necessary to do so because the employee had denied having used the company’s computer and internet account for private conversations. The decision of the local courts had satisfied proportionality test and there was nothing the European Human Rights Court could do about it. Obviously, the newspaper had depicted a totally unrealistic picture of decision of the European Human Rights Court giving a wrong impression about it and sending shock waves among the workers and employees working in Europe. It was not only casual but also irresponsible way of reporting a judicial decision thinking that law is mere commonsense. It would appear that by passage of time, at least a section of the global media has shifted its attitude from ‘truth seeking traditional journalism’ to ‘sensationalizing tableau journalism’.

Apparently, a section of the local media has also been afflicted with the unethical attitude mentioned above. On 29th January, 2016 a daily English Newspaper having wide circulation in Kerala reported: “No police case against Kerala C.M. in solar scam, says High Court”3. The reference was to an interim order of the Kerala High Court temporarily suspending the order of Vigilance Court, Thrissur. Vigilance Court had in exercise of its power under Section 156(3) of the Code of Criminal Procedure, 1973 (Cr.P.C.) had directed the Director of Vigilance and Anti-Corruption Beareau to investigate a complaint against the Chief Minister and Electricity Minister of Kerala. The Vigilance Court did so mechanically without application of mind stating that its duty in such matters was that of a ‘post office’. The Vigilance Judge, obviously, adopted a casual commonsensical approach, perhaps on the presumptive premise that his decision based on varied and vast experience as a trial judge could not go wrong. The decision of the Vigilance Judge had apparently been made without having regard to the law laid by the Supreme Court and the Kerala High Court in the matter. In P.Sirajuddin v. State of Madras4 Supreme Court said that before a public servant is charged with act of dishonesty or misconduct and first information is lodged against him there must be a suitable preliminary enquiry into the allegation by a responsible officer. This view has subsequently been reiterated by a Constitution Bench of the Supreme Court in Lalitha Kumari v. Government of U.P.5 . The Supreme Court had pointed out that lodging of a report against a person, especially one who occupies top position in the Government, even if baseless, would do incalculable harm not only to the officer but also to the department. The preliminary enquiry is to ensure that there are materials to satisfy the conscience of the court that there is prima facie truth in the allegations in the complaint. The decision in Sirajuddin has subsequently been followed by the Supreme Court in Sashikant v. C.B.I.6 and in Ashok Tshering Bhutia v. State of Sikkim 7 In K.Mohandas v. Enquiry Commissioner  8 a Division Bench of Kerala High Court relied on the decisions of the Supreme Court in Sirajuddin and in Secretary, Rural Engineering Services, U.P v. Sahngoo Ram Arya 9 and said that right to life under Article 21 of the Constitution of India includes the right of a person to live without being hounded by the police to find out whether he had committed any offence. The Division Bench also held that in the light of the directions of the Supreme Court the Vigilance Court cannot simply act as ‘post office’ and issue, without proper application of mind, direction to the vigilance police to conduct enquiry or investigation into the allegations. In Anil Kumar v. M.K.Aiyappa 10, the Supreme Court relying on earlier decisions of the Supreme Court in State of West Bengal v. Mohd. Khalid11 held that cognizance of an offence is taken by the court at the initial stage when court applies its judicial mind to the facts mentioned in a complaint. Referring to its earlier decision in State of Uttar Pradesh v. Paras Nath Singh12 Supreme Court held that the bar on the exercise of power of court to take cognizance any offence against a public servant is absolute and complete. Taking cognizance in the context, it said, means taking notice of. Court was therefore precluded from examining a complaint or from taking notice of it in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his public duty, except after prior sanction from the competent authority under Section 19 of the Prevention of Corruption Act, 1988. In Mohd. Khalid  Supreme Court had held that taking cognizance of an offence is not the same as issuing of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint. The Supreme Court took the same view in Subramania Swamy v. Manmohan Singh13. No doubt, the Supreme Court has sufficiently contributed to the confusion by rendering conflicting decisions as to the meaning of ‘taking cognizance’ of criminal offence by a court under Cr.P.C. In R.R. Chari v. State of U.P.14 the Supreme Court held that before it could be said that magistrate has taken cognizance of any offence under Section 19(1)(a) of Cr.P.C. he must not only have applied mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XV of the Cr.P.C. In S.Kumar v S.Sunaad Raghuram15 the Supreme Court held that ‘only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not’. In none of these decisions, however, there is any in depth discussion as to what is the meaning of ‘taking cognizance’ or as to at what point of time the Magistrate shall deemed to have taken cognizance of a criminal offence. Whether right or wrong, there is ample authority for the proposition that on a complaint against a public servant involving allegation of criminal offence during the performance of official duty, the Magistrate has not only to apply mind to satisfy whether there is prima facie truth in the allegation but also has to take cognizance of the offence by taking notice of the complaint before directing investigation under Section 156(3) of Cr.P.C. Unless varied by a subsequent decision of the Supreme Court this is the law of the land and courts at the lower rung in the judicial hierarchy are bound by the law laid down by the Supreme Court. Decision of the Kerala High Court in Maneesh E. v. State of Kerala16 has taken a view that the decision of the Supreme Court in Anilkumar being contrary to an earlier Constitution Bench decision of the Supreme Court, courts are not bound to follow Anilkumar . Precedential value of Maneesh is doubtful. Facts in Maneesh show that the Vigilance Court, Kozhikode, had rejected a complaint alleging criminal offences under Prevention of Corruption Act, 1988 (P.C.Act) against a public servant, for want of prior sanction under Section 19 of the P.C. Act, based on the decision in Anilkumar. The High Court refused to follow Anilkumar stating that it was contrary to Constitution Bench decision in Nandram Agarwala v. H.C. Bhari 17. High Court held that the Vigilance Court, Kozhikode, had gone wrong in not caring to consider the Constitution Bench decision in Nandram Agarwala. In Anilkumar, the High Court pointed out, Nandram Agarwala was not considered. High Court, therefore, held that the Vigilance Court ought to have followed the decision in Nandram Agarwala. Accordingly, the High Court set aside the order of the Vigilance Court, Kozhikode and directed the Vigilance Court to follow Nandram Agarwala  and pass appropriate orders. In fact, facts in Nandram Agarwala were not identical to the facts of the case before the Vigilance Court, Kozhikode. Nandram Agarwala was not a case where any offence under Prevention of Corruption Act had been involved. In Nandram Agarwala Supreme Court was not considering the question as to whether while entertaining a complaint under Prevention of Corruption Act it was necessary for the Vigilance Court to apply its mind to the complaint and the materials produced before it to satisfy that there was prima facie truth in the allegations. There was also no discussion whatsoever in Nandram Agarwala as to what is the meaning of “taking cognizance" in a case falling under Prevention of Corruption Act and whether entertaining a complaint against a public servant alleging criminal offences under Prevention of Corruption Act would amount to taking cognizance. Therefore, the Vigilance Court, Kozhikode was bound by Sirajudin, Anilkumar  and Mohandas and not by Nandram Agarwala. The High Court is also bound by Sirajudin and Anilkumar. If the law laid down in Sirajudin and Anilkumar is the law of the land, the High Court by directing the Vigilance Court, Kozhikode to ignore these decisions and to direct investigation of the complaint under Section 156(3) of Cr. P.C., was in fact, directing the Vigilance Court to act contrary to the law of the land. Obviously, the Vigilance Court, Thrissur was not justified in mechanically forwarding the complaint to the Director of Vigilance and Anti Corruption Bureau as if it is a post office. The High Court while suspending, the order of the Vigilance Court found fault with the Vigilance Court also for not following Anilkumar. The High Court while so doing also observed that ‘if this is what the learned Judge has understood about his position and responsibility as a Special Judge exercising jurisdiction and functions under the P.C. Act, the High Court will have to interfere it on the administrative side of the High Court’. Perhaps, the High Court was pointing out that the Vigilance Judge ought not to have adopted a casual approach in a case where the fundamental rights of the parties were at stake. The approach of the Vigilance Judge was obviously too casual, mechanical and bordering on irresponsibility. Of course, the rule against mechanical exercise of judicial power applies with equal, if not more, vigor to the High Court as well and similar blame could be laid at the doors of the High Court for the manner in which it decided Maneesh. But, one of the News Papers in its online edition stated that “Vigilance Court Judge who ordered to file an F.I.R. against Chief Minister and Minister has decided to take voluntary retirement”. It also said that “The High Court Judge had made a scathing criticism against Vigilance Court Judge. He had said the Judge was oblivious of the limits of his powers. ‘His verdict breached all those limits; “I don’t know how one could get along with such kind of Judges,” remarked the Judge who also asked the High Court administrative section to initiate action18. The High Court did not make the quoted remarks. The High Court also did not ask its administrative section to initiate action against the Vigilance Judge. It was a clear unethical and irresponsible reporting. Media failed to place before the public the real facts leading to the interim order of the High Court. While the European media made Barbulescu a ‘hero’ and European Human Rights Court a ‘villain’, in Kerala it was the turn of the Vigilance Judge and the High Court respectively. In both instances real facts had been suppressed and the facts were distorted for sensationalizing of the issue. In both cases, the real contents of the judicial decisions were missing and the casual and commonsensical approach of the media were evident.

There is a common belief not only among the journalists but also a section of the judiciary that law is commonsense and that commonsensical approach is sufficient to do justice in any given case. Is law mere commonsense? Accordingly to Andre Bateille commonsense is particular and localized’19. Being bound by class, community, and gender and so on, ‘it is also reflective since it does not question its origins and presuppositions’. Commonsense is based on limited range of experience of particular persons in particular places and time. People are inclined to believe that their way to do things is the right way or reasonable way. Other ways of acting in these regards strike them as being not just wrong, but contrary to commonsense. This is because they observe or experience other ways of acting and thinking only in bits and pieces and not in their entire context. Many common sense statements based on popular wisdom need not always be true. Some popular observations may be true but many others may not be supported by empirical data. Commonsensical approach to an issue may be a good starting point of discussion but not an end in itself. On many occasions commonsensical conclusions may be stemming from myths, prejudices and stereotypes.

Courts in U.S.A. and U.K. and other common law jurisdictions do not any more decide cases based only on views stemming from mere common sense. Gone are the days when courts use to think that cases involving important and complicated questions of law can be decided without entering into meaningful dialogues with counsel appearing in the case and without reference to academic literature. Alan Patterson has recorded that forty years ago relatively few academics had the opportunity to interact regularly with the Law Lords in England19. Academic criticism of the House of Lords tended to be muted in those days. According to Patterson it seems that General Editor of Modern Law Review in 1950 was summoned by the Law Lords and solemnly reproved for publishing an article by Professor Grower that included a criticism of the judicial attitude towards academics20. Patterson has also recorded that in 1972 one Law Lord indicated that ‘he seldom found the Law Journals of any assistance because they were not critical enough' 21. He also said that ‘Law Journals contained sort of notes which are couched in very respectful language and ‘not particularly helpful' 22. Soon came the criticism of Professor J.C.Smith , a leading Scholar of the day. He assailed Regina v. Caldwell 23 in harsh terms. Regina v. Caldwell was overruled after 10 years in Regina v. G.  The House of Lords in Regina. v. G 24 acknowledged the ‘reasoned and outspoken criticism of Professor J.C.Smith’ to overrule Caldwell. Anderton v. Ryan25 came under severe criticism by another leading scholar of the day, Professor Glanville Williams. He severely criticized the Judges who decided Anderton26. He found them guilty of conceptual misunderstanding of rule, invisible ignorance of mess they made of law, immobility on the subject and subversion of Act of Parliament. In a 50 pages article Professor Williams accused the House of producing in two worst decisions on a point of law in the twentieth century, ignoring and discriminating against the Law Commission, acting in an idiosyncratic and autocratic way, and verging on incompetence. Lord Bridge who read the Article used it in Regina v. Shivpuri 27 to overrule Anderton and persuaded his colleagues to follow him in that regard. Lord Bridge made no secret of the advantage he derived from the Article of Professor Williams and said that ‘though the language in which Professor Williams criticizes the decision in Anderton v. Ryan is more conspicuous for its lack moderation it would be foolish on that account not to recognize the force of the criticism and churlish not to acknowledge the assistance’ he derived from it. On another occasion, Lord Diplock is said to have commented that ‘in contrast to the judicial attitude in my early days at the Bar Judges no longer think that the judicial wisdom are confined to judgments in decided cases’ and that ‘in appellate courts, at any rate, when confronted with a doubtful point of law we want to know what living academic jurists have said about it and we consider that counsel have not done their home work unless they come equipped to tell us about it’. John Steyn in an interview to Alan Patterson is said to have said that ‘it became much more open place'. Much more attention has been paid to academic literature generally in the House of Lords in the recent years 28. In 2005, Lord Hope confirmed that references to academic literature are more common than it used to be. Appellate Judges are particularly conscious of good work that has been done by academic lawyers to reveal weaknesses in the existing law and to explore new territory. When counsel failed to refer to cite relevant academic writings and the justices are aware of the literature they will note the omission and may even mention it in their judgment as they did in Jones v. Kernott 29 . In US Supreme Court, over the last 50 years, court used academic literature in 32% of decisions at an average of one Article per decision. Chief Justice Roberts used legal scholarship in 23% of cases he decided. In Hunter v. Canarry Wharjf 30 Lord Golf stated that while he consulted relevant academic authorities, he referred only to those which were of assistance. In White v. Jones 31 Steyn L.J. regretted that no commentary on Ross v. Cannters 32 was put before the Court of Appeal for arriving at a correct decision in the case. He also said that in a difficult case it is helpful to consider academic comment on the point.

It is time for us to realize that law is not mere common sense. A lot more intellectual exercise has to go into making of the law. It is a heuristic science receiving information from all quarters and thereby enriching itself. Ordinary commonsensical approach is not sufficient to arrive at correct decision at least in cases involving important and complicated legal issues. Constant dialogue with academics and scholars having expertise in the field and reliance on academic literature alone will help courts to develop the law in the right trajectory.

Foot Note:

*    I am highly indebted to Dr.K.N. Chandrasekharan Pillai, Former Director, National Judicial Academy, Bhopal and former Professor and Dean of Law Faculty, Cochin University of Science & Technology, who was kind enough to read the Article in draft and gave valuable suggestions.

1.  Case of Barbulescu v. Romania (Judgment dated 12 January 2016 in Application
No.61496/08, European Court of Human Rights, Strausberg).

2.  http://www.mirror.co.uk/news/uk-news/your-boss-can-now-officially-7171128
(last accessed on 16th April, 2016.

3.    Deccan Herald dated 29 February, 2016 http://www.deccanchronicle.com/current-affairs/290116/solar-scam-kerala-cm-oommen-chandy-files-plea-to-quash-court-order-on-fir.html (Last accessed on 16th April, 2016).

4.    AIR 1971 SC 520.

5.    2013 (4) KLT 632 (SC).

6.    AIR 2007 SC 351.

7.    2011 (1) KLT Suppl. 88 (SC) =  AIR 2011 SC 1363.

8.    2003 (3) KLT 480.

9.    AIR 2002 SC 2225.

10.  2013 (4) KLT 125 (SC) = (2013) 10 SCC 705.

11.  (1995) 1 SCC 684.

12.  2009 (3) KLT Suppl.999 (SC) = (2009) 6 SCC 372.

13. (2012) 3 SCC 64.

14. AIR 1951 SC 207.

15. 2015 (3) KLT  382 (SC) = (2015) 9 SCC 609.

16. 2016 (1) KLT 323.

17. AIR 1956 SC 44.

18.  Kerala Kaumudi Online, dated 29th January, 2016: http://www.kaumudi.com/innerpage l.
php?newsid=74266 (last accessed on 16th April, 2016).

19.  Andre Bateille: ‘Sociology and Commonsense’; Economic & Political Weekly, Vol.31, Issue No.35-36-37, 14 Sep,1996,p.2361.

20.  Alan Patterson : Final Judgment: The Last Law Lords and the Supreme Court; Oxford and Portland, Oregon,2013 ;p.268.

21.  Ibid;p.268.

22.  Ibid;p.268.

23.  Ibid;p.268.

24.  (1982) AC 341.

25.  (1985) AC 560.

26.  Glanville Williams, ‘The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?’ (1986) 45 CLJ 33.

27. Alan Patterson : Final Judgment:The Last Law Lords and the Supreme Court; Oxford and Portland, Oregon,2013;p.270.

28. (2011) UKSC 53.

29. 1997 U.K.H.L.14.

30. (1995) 2 AC 207.

31. (1990) Chancery 2970.