Gujarat Model - Another Perspective!

(By K.G. Balasubramanian, Advocate, Ernakulam)

My humble applause to Justice M.R. Hariharan Nair (Retd.). His Lordship's words have come not a day too late. His Lordship has spoken out on behalf of many. But, may I say with respect, Gujarat Model, however glorious it may sound, may prove to be counter-productive in a long run, in as much as discharge of the divine duty of dispensing justice should not be at the physical/mental cost of the1 Bar and Bench.

I am not the one to comment on the labyrinth of vacation and the typical attitude of the Keralite who looks up the daily newspaper only to know whether it is a holiday. Holidays do serve their purpose - earliest recorded one being of 6 days labour and Sunday holiday. Judges and advocates do have to have their moment of/for relaxation.

To a sincere and successful advocate, the concept of holiday is an anathema. An unexpected holiday throws his entire schedule out of gear. Postings of cases in Courts are disarrayed. Clients coming from far and near are put in despair. Time does not wait for anyone.

Mid summer vacation is opposed to the constitutional concept "to secure to all its citizens: Justice, social, economic and political". Gone is the era of the Raj. In its place we have the era of the Indian bourgeoisie. Comparing the vacation system of courts to that of schools and colleges is, as his Lordship has hinted, out of place. It may not be possible to do away with mild-summer vacation all of a sudden. The politico-legal Culture and white-collar way of doing things in India may not be able to absorb the impact of sudden death of midsummer vacation. May be, we can do it in a phased manner.

While espousing the sentiments expressed by his Lordship, may I opine, hopefully without opening up Pandora's box, that mid-summer vacation be divided and spread over? Like, for example, 7 days at regular intervals, which may preferably overlap other public holidays. Then, we won't have to take away those holidays. They just get merged. As for litigants and advocates, the concept of vacation sittings is something to think twice about, despite best judges being ordained to discharge vacation duties and their putting in the best efforts. Past experience of vacation sittings would show that more is required. Two Hon'ble Judges are ordained to discharge the functions of 26 judges (in the Hon'ble High Court) during midsummer vacation. That is taxing them too much. By providing for short vacations, the strain on judges and advocates can be reduced to a great extent. Continuity of thought in legal minds need not be broken.

The practical reasons for the above, I am sure, will be shared by a good number of my colleagues. The present day legal man has to be a pleader, a lawyer, a solicitor and an advocate, all rolled into one. Division of functions of an advocate is a thing of the past. Successful advocates, except a chosen few, normally work 7 days a week. They do not have time for social/cultural/family activities. I am not forgetting the more blessed among my colleagues who do find time for their friends and families. Let me not examine the parameters of success now.

Another reason which prompts me to write these few lines is the fact that advocates do not have any leave facility, but judges and other servants have - privilege leave, casual leave, half-pay leave, etc. An advocate has to make immense sacrifice in his personal affairs in order to truthfully and sincerely discharge his duty fruitfully. Marriage, birth and/or death have to take second place on many occasions.

His Lordship has restricted to docket explosion and the partial(?) failure of the system of tribunals, courts, adalats etc. Litigation is part and parcel of every civilized society. The paralegal system comprising of tribunals and adalats will not really serve the purpose of securing justice, social, economic and political, in as much as such exercises benefit only a few in isolated spheres. Whichever alternate system is set up, there are bound to be situations which can be resolved only by full-fledged advocates and the judiciary. Considering the stupendous increase in population and litigation, faster access to justice will only be more and more in demand. The demand is definitely outweighing supply.

As regards the cost factor in establishing more courts, that should not be an excuse to the Government. Securing justice is a constitutional obligation. The litigant has to pay court fee. It is an affront on the Constitutional concept, after five decades. The citizen has to pay one tax or another on almost every commodity he has to have. Governments have been innovative in inventing more and more avenues of taxation, on more and more commodities and services. At the same time, its funds are not properly managed or accounted. We come across reports of is management/defalcation of public money by public servants regularly, the latest one being of currency kept in sacks in many offices all over the State. If the Government becomes professional in managing its affairs, with more emphasis on accountability, I am sure the eternal cry of paucity of funds can be avoided. If the Government cannot look after its money, why should litigants and courts suffer? Should we not examine how much of the revenue earned as court fee and batta is pooled back to aid the cause of justice? We have to remind ourselves that the Hon'ble High Courts are flooded with Writ Petitions only because many public servants show scant respect for rule of law and less understanding of law, IAS/IPS notwithstanding. Should not the executive educate and compel its labour force to serve, "without fear or favour, affection or illwill"? Ignorance, inefficiency, inaction and callousness of public servants alone compel clients to move the Writ Court.

If I may reminisce, with the reader's permission: I had the opportunity to voice some what similar sentiments in 1991 (1) KLT Journal 46. The basic need is the optimum utilisation of the system, however fair or foul a cause might be. There, advocates and judges have a pivotal role. If the client insists on service, an advocate has to oblige. Foul cases should get the treatment they deserve, in the hands of both the judges and the advocate. Of course, an advocate cannot act as a Judge of his client's case. But, how many advocates are prepared to convince/ dissuade a prospective client against a misadventure? How many will advise in favour of a truce?

One is happy at the thought that the executive cannot thrust a holiday on the High Court and subordinate courts. Very wisely done by our constitutional fathers. At the same time, should the executive be given the discretion to declare holidays, in the name of the Holy or Unholy?

CURBING SEXUAL HARASSMENT OF WOMEN AT WORK PLACE

(By H.L. Kumar, Advocate, Delhi)

A major problem is that the employer is  also mostly behind the harasser and  throw an economic pressure on the harassed. The sexual harassment should   be a misconduct and sanctions should be imposed on the harasser. - Ms. Indra Jatisingh, Sr. Advocate

On November 25, 1998 the Bombay High Court, in Saudi Arabian Airlines v. Shehnaz Mudhatkal (Mrs.) & Ors. (supra) upheld the Labour Court's award setting aside Shehnaz's termination, and holding that the conduct of her employer "would squarely fit in" with the definition of "sexual harassment" as provided by the Supreme Court in the case of Vishakha & Ors. v. State of  Rajastlum (1997 (77) FLR 297: 1997 LLR 991 (SC).

Sexual harassment is a serious misconduct as held by the Supreme Court and as such the misconduct be enumerated as under;

"Sexual harassment against co-female workers inclusive of such unwelcome sexually determined behaviour (whether directly or by implication) such as:

(i) physical contact and advances;

(ii) a demand on request for sexual favours;

(iii) sexually coloured remarks;

(iv) showing pornography;

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature."

In a move to moot the law in this direction the International Women Organisation and V.V. Giri National Labour Institute, Noida underscored the need to give more teeth to several existing laws such as Equal Remuneration Act, the Minimum Wages Act, Maternity Benefits Act, Factories Act and amendment to S.354 of the IPC for upholding the dignity of women in society. The national workshop to commemorate International Women's Day on "Prevention of Sexual Harassment at the Workplace" ended with a call for the enactment of a new, antidiscrimination law.

The law mooted will prohibit discrimination on the ground of sex, race and caste in keeping with the constitutional right to equality and will be binding on all employers, both in the public and private sector.

The Director of ILO, Mr. Herman Van Der Laan made a plea to society to recognise the importance of remedial and preventive action to end gender discrimination among women workers, who made up 22 per cent of the labour force in the country.

Mr. Laan, while reiterating his organisation's commitment to providing decent working conditions, revealed that the ILO had commissioned country studies in the Asia-Pacific region on the prevention of sexual harassment at the workplace in a bid to increase awareness among employers and employees of the need to address the problem sufficiently.

Presenting the National Perspective on Sexual Harassment, Mr. Uday Kuar Varrna, Director of V VGNLI, said despite India ratifying the International Convention on the Alimentation of all forms of Discrimination Against Women (CEDAW) the existing laws in the country were inadequate to address the issue.

The said sexual harassment had neither been defined in the Indian Penal Code nor was they any legislaiion to prevent such harassment at workplace.

Presenting the India Study Report on Sexual Harassment at the Workplace, Ms. Indira Jaisingh of Lawyer's Collective and Advocate Ms. Anitha Shenoy, pointed out that the problem could not be redressed without legislation.

This was the only way to provide a remedy to the aggrieved to have the complaint investigated, have the abuser dealt with in accordance with the law and to seek compensation for the wrong done to the victim.

There is however, a legislative vacuum which must be sufficiently comprehensive in scope and effect.

In context with above, the credit goes to Kerala Government in amending Kerala Industrial Employment (Standing Orders) Rules, (G.O. (Rt.) No.1819/200GVLBR, dated 26th May, 2000) 1958 by inserting the appropriate provisions which read as under:

(i) in CI. (3) of paragraph 17, after item (n), the following shall be inserted, namely:-

"(o) sexual harassment against co-female workers inclusive of such unwelcome sexually determined behaviour either directly or by implication) such as:-

(i) physical contact and advances;

(ii) a demand on request for sexual favours;

(iii) sexually coloured remarks;

(iv) showing pornography;

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature."

(ii) the existing paragraph 20 shall be renumbered as CI.(1) thereof, and after renumbering the following clauses shall be inserted, namely:-

"Preventive steps.- The employer or other responsible persons in work places or other institutions to whom these standing orders apply shall take steps to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required such as,-

(a) express prohibition of sexual harassment as defined above at work place and it shall be notified, published and circulated in appropriate ways;

(b) appropriate work conditions shall be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work place and no woman employee shall have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Criminal Proceedings -Where the conduct of sexual harassment amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate action in accordance with law by making a complaint with the appropriate authority ensuring that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

Disciplinary action.-Where the conduct of sexual harassment amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer, in accordance with these rules.

Complaint mechanism - Whether or not such action constitutes an offence under law or a breach of the service rules, a complaint mechanism as stated in sub-cl.(i) of CI.6 shall be created in the employer's organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

Complaints committee –

(i) A complaints committee shall be constituted consisting of five members headed by a woman and not less than half of its members shall be women.

(ii) It shall include a non-Governmental organisation or other body who is familiar with the issue of sexual harassment.

(iii) It shall make an annual report to the Government department concerned of the complaints and action taken by them.

Workers initiative -Employees should be allowed to raise issues of sexual harassment at worker's meeting and in other appropriate forum, and it should be affirmatively discussed in employer-employee meetings.

Third party harassment -Where sexual harassment occurs as a result of an action or mission by any third party or outsider, employer and person in charge will take all necessary and reasonable steps to assist the affected person in terms of support and preventive action.

Since there is rapid increase in the employment of women in India, there is urgent need for central legislation to curb the menace of sexual harassment of women at the workplace.

The Incuria Rule - Its Purport And Purview

(By O.V. Radhakrishnan, Advocate, Ernakulam)

The Latin expression per incuriam or per ignoratium means 'thorough inadvertence'. 'Incuria' means 'carelessness'. The English Courts formulated the incuria rule as an exception to the rule of precedents. The ratio decidendi of a case constitutes binding precedent. The principle of stare decisis as stated in the Halsbury's Law of England (2nd Edition) are that a decision that has been followed for a long period of time and has been acted upon by persons will generally be followed by Courts of higher authority than the Court establishing the rule, eventhough the Court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. It is subject to the rider that the Supreme Appellate Court will not shrink from overruling a decision or a series of decisions which establish a doctrine plainly outside the statutes and outside the common law. The rule of 'stare decisis' in Corpus Juris Secundum is stated as a principle of law which has become settled by a series of decisions generally is binding on the Courts and should be followed in similar cases. The exception to the above rule is that "previous decision should not be followed to the extent that grievous wrong may result; and accordingly the Courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous". In 'Precedent in English law' by Rupert Cross and J.W. Harris (4th Edition), the meaning of stone decisis is given as stare rationibus decidendis ('keep to the rationes decidenti of past cases'). In England it is not permissible to invite a 'fui! Court' in effect to usurp the function of the House of Lords and to reverse a previous decision of the Court of Appeal as it would go against the maintenance of the principle of stare decisis (Morelle v. Wakeling. (1955) 1 All. E.R. 708). Our Supreme Court did not apply the doctrine of stare decisis in the decision in Maktul v. Manvhari (AIR 1958 SC 918). In the decision in Raj Narain Panday v. Sant Prasad Tewari ((1973) 2 SCC 35) the Supreme Court held that the doctrine of stare decisis can be aptly invoked in situation where a different view from the view taken by the High Court over a number of years would not only introduce an element of uncertainty and confusion, but also would have the effect of unsettling transactions which might have been entered into on the faith of those decisions. In Kattite Valappil Pathumma v. Taluk Land Board ((1997) 4 SCC 114), Paripoornan, J., re-affirmed the principle that things which have been adjudged long ago should be allowed to rest in peace. A decision rendered long ago can be overruled only if the Court comes to the conclusion that it is manifestly wrong or unfair. In Mishri Lai v. Dhirendranath ((1999) 4 SCC 11) the Supreme Court declined to re-consider the decision in Meharban Singh's case ((1969) 3 SCC 542) invoking the doctrine of stare decisis.

The four Judge-Bench, in the decision in Jaisri v. Raj Diwan (AIR 1962 SC 83) has observed that law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. The Supreme Court accordingly held that where conflicting decisions are confronting the Bench hearing the case, the better course would be to refer the matter to a Full Bench, without taking upon itself to decide whether it should follow the one Bench decision or the other.

In our Country, the hierarchical system of Courts exists and "it is necessary for each lower tier", including the High Court, "to accept loyally the decisions of the higher tiers". "The better wisdom of the Court below must yield to the higher wisdom of the Court above. That is the strength of the hierarchical judicial system" as has been pointed out by Chinnappa Reddy, J., while delivering judgment in Assistant Collector, C. Excise v. Dunlop India Ltd., ((1985) 1 SCC 260). The doctrine of stare decisis is given constitutional status and animation under Art.141 read with Art.144 of the Constitution of India that the Law declared by the Supreme Court shall be binding on all Courts within the territory of India. It is a hanging mandate to all Courts, Tribunals and all authorities, civil and judicial in the territory of India.

The rule which was followed by English Courts is that a decision of the Court of Appeal rendered earlier upon a question of principle in ignorance of the terms of a Statute or a Rule having the force of a Statute, is binding to the Court of Appeal and the Court of Appeal should apply that rule of construction to subsequent cases. The Court of Appeal whatever be its own views is bound to abide and if the decision was wrong, the proper remedy is to go to the ultimate Tribunal, the House of Lords. Thai was the view taken in Produce Brockers Co. Ltd. v. Olimpiya Oil and Cake Co. Ltd. ((1916) AC 314) and Velazquez Ltd. v. Inland Revenue Comrs ((1914) 3 K.B. 458). The above rule was followed and applied in English, Scottish and Australian Bank Ltd. v. Inland Revenue Comrs. ((1932) AC 238) which was upheld by the House of Lords. In Perrin v. Morgan ((1943) 3 All. E.R. 187) the above principle was reinforced. In Lancaster Motor Company (London), Ltd, v. Bremith Ltd. ((1941)2 All. E.R. 11) the Court consisting of Sir Wilfrid Greene, MR, Clausone aid Godoard, LJJ., made the opening gambit at stare decisis by declining to follow an earlier decision of a Court consisting of Slesser and Romer, L. JJ. The earlier decision was given per incuriam as it was rendered in oblivion of a rule of the Supreme Court. Later, in Young v. Bristol Aeroplane Co. Ltd. ((1944) 2 AH. E.R, 293), the Court of Appeal has drawn out four classes of cases that would come up while considering the question whether or not it is bound by its previous decision or those of Courts of co-ordinate jurisdiction. The first of those are cases where the Court of Appeal finds itself confronted with one or more decisions of its own or of a co-ordinate jurisdiction which cover the question before it. In those classes of cases, the rule of stare decisis squarely applies. The second of the lot is where there is such a conflicting decision and the Court is entitled to choose between the two conflicting decisions. The third class of case is where the Court of Appeal comes to the conclusion that a previous decision cannot stand with a subsequent decision of the House of Lords. In cases falling under the third category, the Court will have to merely give effect to the decision of the House of Lords which is binding on it. The fourth class of case is where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam. Where the Court is satisfied that an earlier decision was given in ignorance of the term of a statute or a rule having the force of a statute, those cases where the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covers the case before it, those cases where it has acted in ignorance of a decision of the House of Lords which covers the point are examples of decisions given per incuriam.

To understand the meaning and scope of the term 'per incuriam' one has to walk into the procession of judicial decisions. Lord Goddard, C.J., while delivering the judgment of the King's Bench Division in Huddersfield Police Authority v. Watson (1947) 2 All. England Reporter 193), has explained per incuriam to mean:-

"What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that Statute."

In the decision in Penny v. Nicholas ((1950) 2 All. England Reporter 89), the previous decision in Melhuish v. Morris (1938) 4 All. England Reporter 98) was not followed on the ground that that decision was per incuriam. In A & J Mucklow, Ltd. v. Inland Revenue Commissioners ((1954) 2 All. England Reporter 508) an earlier case of H. Collier and Sons Ltd. v. Inland Revenue Commissioners ((1933) 1 KB 488) was not followed as it was found that the opinions of the majority of the Court in the earlier case was found to be admittedly erroneous and the premise on which the case was decided was inconsistent with an authority binding on the Court of Appeal which had not been cited in Collier's case. The Incuria rule has been further explained in Morelle v. Wakeling ((1955) 1 All. England Reporter 708). In that decision the contention of the Attorney General that it is open to the Court of Appeal to disregard an earlier decision of its own or of a Court of co-ordinate jurisdiction whenever it is made to appear that the Court had not, on the earlier occasion, had the benefit of the best argument that the researches and industry of Counsel could provide was negatived. It has also been held that a decision cannot be treated as given per incuriam simply because of a deficiency of parties. In Cratchell v. Lambec (B.C. (1957) 2 QB 535), the Court held hat it is not a ground for applying the incuria rule that a point of importance had not been fully argued. In Miliangos v. George Frank (Textiles) Ltd. (1975) 1 All. E.R. 1076), it has been reiterated that a decision of a Court of Appeal will not bear the label of per incuriam merely because counsel had not cited all the relevant authorities or the case had been argued on one side only.

In Industrial Properties (Barton Hill) Ltd. and Ors. v. Associated Electrical Industries Ltd. (Ward & Co. (Letters) Ltd. and Ors., Third parties; Ward & Co. (Letters) Ltd., fourth party) (1977) 2 All. England Reporter 293), the Court of Appeal declined to follow Harrison v. Wells (1966) 3 All. England Reporter 524) as decided per incuriam because of incomplete reference during argument to the reports of Cuthbertson v. Irving ((1859) 28 LJEx 306) and that the Court was accordingly not required to follow them. In Duke v. Reliance Systems Ltd. ((1987) 2 All. England Reporter 858), the Court of Appeal declared that the doctrine of per incuriam does not extended to a case where, if different arguments or different material had been placed before it, the Court might have reached different conclusion.

In R. v. Immigration Appeal Tribunal, exp Temel ((1988) CA Transcript 344), Purchas, LJ, referring to Rahmani's case (R v. Diggins exp Rahmani ((1985) 1 All. England Reporter 1703) held that though Rahmani's case went to the House of Lords, their Lordships did not in the event, deal with the point, but disposed off the appeal on a purely procedural technicality and the position is that the ultimate authority at the moment which binds the Court of Appeal is Rahmani's case and the Judgments delivered in it on that particular topic. However, in R. v. Secretary of State for the Home Department ex parte Al-Mehdawi ((1989) 1 All. England Reporter 777), the Court of Appeal struck a different note that Rahmani's case went to the House of Lords and the House of Lords had ruled that the issue determined below did not arise for consideration and therefore, the decision of the Court of Appeal is not a binding authority.

In Rickards v. Rickards (1989) 3 All. England Reporter 193), Lord Donaldson MR. has applied the per incuria rule on the ground that the earlier decision involved a manifest slip or error. That principle was followed in Rakhit v. Carty ((1990) 2 All. England Reporter)

In the revolutionary decision in Moodie v. Inland Revenue Commissioners and Anr. and related appeal ((1993) 2 All. England Reporter 49), the House of Lords advanced the incuria rule, by holding that the House of Lords should ignore earlier decision which would have been decided differently if successful argument in later case had been argued in earlier case and that the earlier decision has no precedent value.

A Judge of first instance is bound by the ordinary principles of precedent to apply the law as so stated and it cannot suggest that a recent decision of the Court of Appeal had been wrongly decided. (Bough v. Delta Water Fittings Ltd. ((1971) 3 All. England Reporter 258). Davies L.J. in Lane v. Willis (1972) 1 All. England Reporter 430) held that the observations of the Judge of first instance that the decision of the Court of Appeal was wrongly decided was out of place, unusual and undesirable.

In the leading Judgment in the seven Judge Bench decision in A.R. Antulay v. R.S. Nayak reported in (1988) 2 SCC 602, Mukharjee, J. has enlarged the scope of the rule of per incuriam by applying the rule on the ground that there was no argument, no submission and no decision on the particular aspect and the direction was given without a prayer in the appeal and also for the reason that the Court did not advert to or consider the effect of the earlier decision in Anwar Ali Sarkar's case (AIR 1952 SC 75) and declined to accept the contention that the directions given on February 16, 1984 were not per incuriam.

In a later Constitution Bench decision in Punjab Land Development and Reclamation Corporation v. Presiding Officer, Labour Court reported in (1990) 3 SCC 682), the Supreme Court has given a cutout of the expression "per incuriam " as "a decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court." It has been clarified that as regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subject covered by them, the Supreme Court may not be said to "declare the law" on those subjects if the relevant provisions were not really present to its mind. The incuria rule cannot hamstrung the Supreme Court as it can lay down the law afresh, if two or more of its earlier judgments cannot stand together.

In a recent decision Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. reported in (2001) 6 SCC 356 the Honourable Supreme Court cautioned that unless it is a glaring case of obstrusive omission, it is not desirable to depend on the principle of judgment 'per incuriam'. The Supreme Court restricted the scope of the rule that unless some part of the decision was based on a reasoning which was demonstrably wrong, the principle of per incuriam cannot be applied.

The rule of sub-silentio, carved out as an exception to the rule of precedents by the English Courts and Jurists, lost its independent status as an exception to the rule of precedents after the locus classicus decision in Moodie's case. In R. v. Warner, 1 KEB.66 as early as in 1661 precedents sub-silentio and without argument was held to be of no moment. The decisions without argument was viewed as a general exception to stare decisis. It has been stated that "a decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is no perceived by the Court or present to its mind (Salmond on Jurisprudence Xllth Edition page 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. ((1941) 2 All. England Reporter 11), the Court did not apply and follow the earlier decision as it was rendered "without any argument, without reference to the crucial words of the Rule and without any citation of the authority." The upshot of Moodie's decision is that the incuria rule is enlarged to take within its swathes the decisions passed sub-sileniio. The sub-silentio rule was followed with approval by the Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur ((1989) 1 SCC 101). In State of U.P. v. Synthetics and Chemicals ((1991) 4 SCC 139), the Supreme Court considered the question whether the incuria rule extends and applies to a conclusion of law which was neither raised nor preceded by any consideration. The Apex Court held that a decision which is not express and is not founded on reasons, and bereft of consideration of the issue cannot be deemed to be a law declared, to have binding effect.

In the seven Judge Bench decision in L Chandrakumar v. Union of India reported in (1997) 3 SCC 271, it has been stated that S.21 of the Administrative Tribunals Act specifies strict limitation periods and does not vest the Tribunals under the Act with the power to condone delay. While stating so, it cannot be said that the Supreme Court declared the law in regard to the power of the Tribunal to condone delay for the reason that S.21(3) of the Administrative Tribunals Act which specifically empowers the Tribunal to admit an application after the period of limitation provided in sub-s. (l) of S.21 of the Act was 'not really present to its mind'.

The incuria rule can be applied by the same Bench or a co-ordinate Bench to ignore a previous judgment of its own or of a co-ordinate Bench. But a Court has no right to disregard a decision of a higher Court. The English principle that 'a full Court' of five Judges of the Court of Appeal has no greater jurisdiction or higher authority than a normal division of the Court consisting of two or three Judges is not followed by our Courts and the decision of a larger Bench binds a smaller Bench. Art. 145(3) of the Constitution directs that a case involving a substantial question of law as to the interpretation of the Constitution, it shall be heard and decided by a Bench of not less than five Judges. A single Bench cannot ignore the Judgment of a Division Bench, Full Bench or Larger Bench of the same High Court and in cases of conflicting decisions, the matter has to be referred to a larger Bench for resolving the conflict.

The incuria rule operates in judicial decisions and cannot trend in articles in news papers or magazines. The incuria rule is one formulated to relax the rigor of stare decisis rule and that rule cannot be called in aid to ignore an article or speech made on a topic or subject. The title of the article 'Comment on 2002 (1) KLT 384 - A writing Perlncuriam appeared in the Journal section of 2002 (2) KLT part 15 at page 72 is inappropriate, inept and sounds smattering of the rule.

Law cannot remain static, hidebound by tradition or blinkered by precedent but it must develop, advance and grow with the needs and aspirations of the society - that is the nub of the Rule of Law.

The Importance of Being Respectful (A Mid-Summer Recess Dream)

(By T.P. Kelu Nambiar, B.A., M.L.)

I am scripting a sob story, in both sorrow and anger, about the lack of respectful behaviour among the members of the legal profession, the judiciary included.

During the Mid-summer Recess, 2003,1 was reading the legal biography of Lord Atkin, by Geoffrey Lewis, the biographer of Lord Hailsham as well. In the Chapter dealing with 'Lord Atkin's Legacy', the author emphasises Lord Atkin's respect to counsel's arguments, and His Lordship's considerate and genial courtesy and elegant patience.

The legal profession (including Judges and advocates) should be a 'Circle of Confidence'. But it is moot as to whether there is mutual respect between the constituents.

John Erskin, one of the world's best teachers, has spoken about the importance of being respectful. Respectful behaviour towards others is a sure sign of nobility. Nobility is what nobility does. It is said that there is no question of prescribing the 'essential', the 'desirable' and the 'preferential' qualifications for a noble man. A noble man makes an impression on you much before he starts to speak.

'Respect' is attention to, or consideration, or thoughtfulness, or high regard for, someone or something. One shows respect by courteous behaviour. Humility is the quality of being humble. "How beautiful is humble courtesy!", mused Tagore.

'Respect' comprehends good-breeding, deference and courtesy. According to Henry Fielding, the summary of good-breeding is to behave to all others as you wish they should behave to you. Deference is the instinctive respect which we pay to the great and the good. In common parlance, deference is the willingness to consider or respect and recognise the views and wishes of others. Courtesy is polite behaviour. Politeness is consideration towards others.

Behave respectfully towards all, including your servants, because showing respect envisages good-breeding and deference, said Saint Thiruvalluvar in Thirukkural. You lose nothing by showing respect; but you lose everything by showing disrespect to others. The bottom line is, you gain a lot by being respectful to everybody. Grow great by your example.

Throughout the web of the hoary tradition of Bharath, there runs a golden thread of respectful behaviour. This we find in our Epics and Puranas. Our Gods-incarnate, sages and saints had spoken loudly and preached eloquently on the subject of showing respect to others; and they had practised the same, too.

Respect is an aspect with is reciprocal, meaning, if only you respect others, they will respect you. It is not wealth, nor ancestry, but honourable conduct and a noble disposition that makes men great. Speak respectfully, said Sri. Sankaracharya.

"Yet words do well

when he that speaks them

pleases those that hear",

spoke Shakespeare, through Phebe, the shepherdess, in As You Like It.

Have you ever reflected on the triste state of affairs in courts these days. The advocate feels he is slighted by the Judge; the Judge feels he is not respected by the advocates. The Judge threatens the advocate; the advocate despises the Judge. Why? Because of lack of mutual respect. Respect is relative. Esteem cannot be extracted : reciprocity is its relation. It cannot be commanded by the gait with which one strides. Megarry cites an instance where the Supreme Court of the United States did not find anything wrong in a counsel objecting to the court yelling at him and raising its voice against him, because lawyers do not owe an obsequious/ fawning duty to the court.

Conceit and arrogance are the greatest barriers to performance of 'Swadharma'. There are three things necessary to make a great man. They are, nobility, nobility and nobility. And a great man never hurts anyone for the world. A man of good birth is judged by his behaviour, just as the purity of gold is tested in the flame, as Vidura declared.

Let me venture a suggestion for a Constitutional, as also statutory amendment; Constitutional amendment to the form of oath or affirmation to be made by Judges; and statutory amendment to the form of affirmation to be made by advocates; by adding: "And I will behave respectfully towards all".