Sections 107 & 108 – Rule of Artificial Certainty

(By B. Premnath, Advocate, High Court of Kerala, Ernakulam)

 

Sections 107 and 108 of the Indian Evidence Act, 1872 raise presumptions non pareil. When one advocates continuance of life, the other, death. Both the provisions are rules of evidence which point out how burden of proof should be discharged in a case where an issue arises as to whether a person is alive or dead. An artificial certainty is brought in to ‘declare’ a person alive, or dead. Those are praesumptio juris which are rebuttable. A presumption will be upheld until proof be made to the contrary: stabit praesumptio donec probetur in contrarium. When it is shown that a man was alive within thirty years, the burden to prove that he is dead, is on the person who affirms it; and if it is proved by him that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden shifts on to the person who affirms that he is alive. And if it is proved that he is alive, the presumption of death after seven years is rebutted; and if not, it stands.

 

The report of the select committee of the Council of the Governor-General of India for the purpose of making Law and Regulations to which the Indian Evidence Bill was referred, reveals that Sections 107 and Section 108 of the new bill are presumptions which have the effect of laying the burden of proof on particular persons, in particular cases. The report states that other presumptions are mere maxims by which the Courts ought to be guided in the interpretation of facts.

 

Where did the period of seven years required for raising the presumption of death first occur?1"The period of seven years was inserted in the old statute of Charles II concerning leases of lives, and it has since been adopted by analogy, in other cases. It is also recognized in the various acts relating to bigamy; and if, on an indictment for that crime it appears that the prisoner and his first wife had lived apart for seven years before he married again, mere proof that the wife was first alive at the time of the second ceremony will not warrant a conviction, but some affirmative evidence must be given that the prisoner has known his wife to be alive during the seven years. But although a person, who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death, and therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence and can neither rely on the one hand, upon the presumption of death, nor on the other, upon the presumption of the continuance of life. The burden of proving that the person was alive at any particular period within the seven years is upon the person asserting it”.

 

A reading of Section 108 may create a doubt whether the words  “provided that” in the beginning of section 108 gives it the colour of being a proviso to section 107.  The proposition that before a proviso to apply, the section itself must apply, admits no doubt. It is also settled that a proviso has to be interpreted so as to bring it within the purview of the section itself. In other words, a proviso cannot dwell in a different field than that of the section. Hon’ble Supreme Court in AIR 1975 SC 1758 held that “A proviso must be limited to the subject matter of an enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is the proviso. It is not a separate and independent enactment. ‘Words are dependant on the principal enacting words to which they are tacked as a proviso. They cannot be read and divorced from their context’(1912 AC 544)”. AIR 1966 SC 459 held: “There is no rule that the proviso must be restricted to the main enactment. Occasionally in a statute a proviso is unrelated to the subject matter of the preceding section or contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified there in and not as qualifying the main or preceding section.”  Craies on Statute Law postulates: “That it is the substance and not the form of a provision which has to be looked into to determine its nature”.

 

Originally, section 108 was without the words “provided that” in its beginning. It started with “when” and the word was “on,” instead of “shifted to” in the limb “the burden of proving that he is alive is shifted to the person who affirms it”. It was by the amendment Act 18 of 1872 that section 108 got its present shape. It cannot be said that while adding the words “provided to”, the legislative intent was to treat S.108 as a proviso to S.107. One has to read both the sections as a whole including its headings. Heading of a section play a vital role in determining its intent. Section 107 is about the burden of proving death of person known to have been alive within thirty years. Section 108 is about the burden of proving that person is alive who has not been heard of for seven years. Thus sections 107 and 108 operate in different fields.

 

An  analogy may  be drawn to  the effect of Section 27 of the  Evidence Act. Under Sections 25 and 26,  no confession made to a Police Officer whether in custody  or  not can be proved as against the accused. Section 27 permits so much of the information which is given by  persons  accused of an offence when in the custody of a police officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts  to  confession or not.  Section 27  in a way relaxes  the  prohibition  in  sections 25 and 26  and  it acts as a proviso to those sections.  It was held in AIR 1972 SC 3:  “But Section 27 is by way of a proviso to these sections and a statement even by way of confession, which distinctly relates to  the fact discovered is admissible as against the accused in the circumstances stated in Section 27”. Section 108 is not a proviso  to  section 107  as  Section 27  of  the  Evidence  Act  which  is  a  proviso  to  Sections  25 and 26.  Section 108 in   effect provides answer to  the question that how proof should be adduced to presume the death of a person.   It  can  be  seen  that  Section  107  stands  for  continuation  for  life.  When  Section 107  places  the  burden  of  proof  on  the  person  who  affirms  that  a man is dead, Section 108 simply shifts the burden back on the person who affirms that that man is alive.  AIR 1956 TC 129 reports the decision that where Section 108 applies, Section 107 has no application . Thus it can be seen that section 108 does not depend on section 107. Section 108 is a substantive, independent provision. In 2004 (2) KLT 351(SC) and AIR 1963 Mysore 115 the view expressed is that Section 108 is an exception to Section 107.

 

The High Court of Orissa in the decision reported in AIR 1967 Orissa 70 holds that the presumption of death under Section 108 tantamounts to physical death. But whether
Section 108 permits the Court to draw the presumption of the date of death of a person? The issue is dealt with in Re Phene Trusts’ (1870 (5) Ch.A.139) which has been followed by the Privy Council in AIR 1926 PC 9 and later by the Supreme Court and some of the High Courts till date. Privy Council held that there can be no presumption as to when a person has died and that, like any other fact, is a matter of proof. Their Lordships quoted the following passage from Re Phene Trusts’ : “If a person has not been heard of for seven years there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.” The Andhra Pradesh High Court in AIR 1970 A.P 246 (Ekbote J) has commented that “ I could not find these words in the body of the judgement reported in 1870 (5) Ch.A.139 and also as reported in 1869-1873 All ER 514. The quotation therefore seems to have  been taken from the Editor’s note which I have extracted above. The head note in turn seems to have been drafted, if I may say so with due respect to the Editor, without regard to what was really said by the Learned Lord in the judgement. The words first “within that period” and second “within the seven years” do not reflect the judgement correctly. The judgement on the other hand categorically lays down that “there is no presumption of law as to the particular period at which Nicholas Phene died”.  It is pointed out that the passage mentioned above as quoted by the Privy Council, was carried forward unknowingly in a plethora of judgements that followed. But ultimately it was the correct ratio of the decision of the Privy Council which was assimilated.

 

Following AIR 1926 PC 9, the decision reported in (1977) 1 SCC 791 quoted with approval the principle in Re Phene Trusts’  that “the precise time of death is not a matter of presumption”. In that case the contention was that one Kishan Singh not having been heard of for more than seven years since August 15, 1945, a presumption of the factum of his death has to be drawn at the expiration of seven years from that date in terms of Section 108. Court rejected the contention. 1995 Supp (1) SCC 27 followed suit.

 

It was held by the Supreme Court in the decision reported in 2004 (2) KLT 351(SC) that: “an occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not  raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise”. The Hon’ble Court held further: “We cannot , therefore countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard for a period of seven years by the wife or the family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings.” 

 

In AIR 2002 SC 606 Supreme Court held that even if a person was not heard more than seven years, the date of filing the suit could not be considered as the date of death of that person under Section 108. The decision reported in AIR 2005 SC 4407, referred to 2004 (2) KLT 351(SC) and held that, on the application of Section 108, it cannot be presumed that a person, whose death is in issue, had died seven years prior to the date of institution of the suit. The Full Bench of the High Court of Kerala in 1970 KLT 976 (F.B.) also held on the same lines: “There is nothing in the language of Section 108 for the view that if the date of death is not proved by any of the parties the early date on which death could be presumed is the date on which the suit was filed”. And it was further held: “The date of death has therefore to be proved as any other fact by the person on whom the burden lies to establish the said death. The exact time of death is not a matter of presumption”. The decisions reported in AIR 1957 Kerala 45, AIR 1957 AP 380, AIR 1963 Madras 385, AIR 1967 Orissa 70, AIR 1968 Rajasthan 48 and AIR 1956 TC 129 aired the same view. Hon’ble High Court of Madras, in AIR 1984 Madras 340 held that date of death cannot be presumed, but held that death can be presumed at the expiry of seven years, which is obviously wrong in view of (1977) 1 SCC 791.

 

Few decisions of the High Court of Kerala held that date of death of a person can be presumed under Section 108 and that ought to be the day when that person was reported to be missing! Unfortunately none of the binding judgments were brought to the attention of the Court. The decision reported in 2005 (3) KLT 1071 was a case where an Army man went missing from a particular date and the Court held: “As and when presumption of death is available under Section 108 of the Evidence Act, the whole position changes and the presumption of death supercedes the declaration of the person as a deserter under Section 106 of the Army Act. Consequently the family members can claim all benefits as if the man is dead on the date of his missing”. That decision was referred to in 2012 (3) KLT 152. It was a case where a wife claimed terminal benefits of her husband on the ground that in spite of enquiry, the whereabouts of her husband could not be ascertained. She also based her claim on a certificate by the Sub Inspector of Police in that regard. The Court held: “If an employee went missing, he was not heard of for seven years notwithstanding the disciplinary proceedings, the consequences of presumption under Section 108 of the Evidence Act would follow, meaning thereby that the legal heirs of the missing person should be given all benefits presuming that that person is dead and that the disciplinary proceedings were against a dead person”. It is not clear whether the Court presumed the date of death of that person as the date of his missing. But the said decision was confirmed by the Division Bench presuming the date of death of the missing person. The Division Bench Judgement was reported in 2013 (2) KLT 418: “True, there may be a specific provision for providing retiral benefits to the dependants/heirs of a man missing. However, after a person is not heard of for 7 years by those who naturally would have heard of him, then there is a presumption of civil death and that relates back to the date when he went missing”. The decision reported in  2004 (2) KLT 351(SC) may be referred, where it is held:-“The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it”.

 

It may be noted that the three decisions noted above and the un reported decisions referred there in in support of that proposition, militates against the binding precedents quoted here and are wrong. No way date of death could be presumed, that too from the date of missing. As already stated, Sections 107 & 108 only points out the burden of proof in case before a Court or an authority where an issue has arisen relating to the life and death of a missing person. Those provisions cannot be relied upon by the concerned authorities to grant pensionary/retirement benefits to the family members of a person missing for seven years unless of course there are provsions in the concerned law in that regard. Incidentally, it may be noted that section 34 of the Specific Relief Act, 1963 enables a party to file suits for declaration but a suit will not lie to declare that a person is dead.

 

In the case reported in AIR 1989 Madras 248 the issue decided was whether the cancellation by the Sub Collector of a certificate of widowhood obtained from the Tahsildar by a wife by fraudulently invoking Section 108 knowing fully well that her husband was alive, is valid or not. After holding the order of cancellation was valid, the Court observed thus: “In any event she could not have invoked the provisions of Section 108 Evidence Act. That section is only a rule of procedure to be followed when the question arises before a Court whether a person is  alive or dead. No person can make use of the presumption under the section and request the Registrar of Births and Deaths to make an entry in the register that the person concerned is dead. Under the provisions of the Registration of Births and Deaths Act, 1969, only actual deaths can be registered and the informant should give the date and cause of death besides other particulars. Similarly the Revenue officials cannot issue certificates of death or widowhood based on presumptions”.

 

In view of these binding precedents which hold that date of death of a missing person cannot be presumed under Section 108 of the Evidence Act, the decisions reported in  2005 (3) KLT 1071,  2012 (3) KLT 152 and  2013 (2) KLT 418 are per incuriam and not good law.

 

Where a custom in a particular community which presumes death of a missing person within a period lesser than Section 108, whether death could be presumed? The decision reported in AIR 1987 P.&H. 37 was a case where a custom in a particular community permits presumption of death with 2 or 3 years of a missing person. The Court held thus: “The period seven years laid down in Section 108 with regard to the whereabouts of a person are not known cannot be whittled down and reduced to 2 -3 years under any Custom. The Evidence Act over rides the earlier rules of evidence which are not contained in any statute, act or regulations. The rules of evidence under the Hindu or Mohemmadan law or which had origin in custom or where based on principles of equity, justice and good conscience and have no validity when they are in derogation to are in clear departure from the provisions of Evidence Act”.

 

In the decision reported in 1988 (1) KLT 45 a question was raised: “Whether presumption of death can be drawn under Section 114 of the Evidence Act even before the expiry of 7 years  mentioned in Section 108?” The Court held in the affirmative. It may be perceived that Section 114 is a general presumption. Sections 107 and 108 raise a particular presumption, which derives its force from law, while Section 114 derives its force from logic. Section 107 and 108 belongs to the second class of presumption under section 4 of the Evidence Act where Court “shall presume” in the absence of proof to the contrary. Therefore  presumptions which sections 107 and 108 raise are not conclusive presumptions, where opposing evidence is forbidden. While presumptions under sections 107 and 108 are fixed rules of law, the presumptions that can be drawn under section 114 are derived wholly and directly from the circumstances of the particular cases, by means of the common experience of man. That legislative intention is clear from the report of the select committee of the Council of the Governor-General of India which moulded the Indian Evidence Act, 1872  where in it is stated in that in order to distinguish between a presumption of law and presumption of facts that Section 114 was enacted, putting all such presumptions in the position of mere presumptions of fact with which the Court can deal at its discretion and can attach any value. 2"A presumption of law is an inference which in the absence of direct evidence on the subject, the law requires to be drawn from the existence of certain established facts, i.e., a presumption which the law compels, and which may be conclusive or rebuttable; a rule of law announcing a definite probative weight attached by jurisprudence to a proposition of logic. It is an assumption made by the law that a strong inference of fact is prima facie  correct, and will, therefore, sustain the burden of evidence, until conflicting facts on the point are shown”. The following passage also may be taken note of, which throws light on the nature of presumption under Section 108: 3"A presumption of law applies to a class, the conditions of which are fixed and uniform; a presumpton of fact applies to individual cases which are inconsistent and fluctuating. Thus the presumption of death arises whenever seven years’ unexplained absence is proved; but when it is necessary to establish the death at any precise period within the seven years the question must be decided on the evidence adduced in each specific case”. Itcould be said that Section 114 has application to the latter part.

 

It is profitable to read a Division bench decision of the Madras High Court reported in AIR 1932 Madras 343 where the distinction between a presumption of law and presumption of fact were laid down, while holding that there cannot be such thing as presumption of fact, in the following words:

 

“Presumptions of law are true presumptions, presumptions, some time rebuttable, some time irrebuttable which courts are bound by statute and some times by other binding authority to set up, positions which they are bound to take up before hand, a priori , before they ever consider the evidence in the case or the part of the case to which the presumptions apply. Those presumptions are correctly called presumptions, positions which we must take up before hand. I think it is a little unfortunate that in our legal phraseology we also use the word ‘presumptions’ in what are spoken of as presumptions of fact. Presumptions of fact are not necessarly taken up at the beginning of the consideration of a case or of any particular part of it. They are really assumptions of fact which we may make any stage of a case. They are assumptions of fact for which we do not ask any proof. Every hour of our life we are making such assumptions of fact in the course of our reasoning on all sorts of questions; we make them from our childhood to our death. Life would not be long enough for the ordinary affairs of business if we did not make such assumptions. Simple questions of fact which a Judge has to decide without the aid of such assumptions would take him months or years to dispose of. These presumptions or assumptions in a very large number of cases we make unconsciously or sub- consciously by an elliptical form of reasoning. But they are always assumptions or inferences of fact, based upon our ideas and experience of the course of nature the course of human business and the course of human conduct. They are the assumptions and unconscious inferences of a reasonable man. There is no special magic about such presumptions or assumptions of fact as they are used in Courts of law; and that makes it to my mind rather surprising that questions about such presumptions have on occasions been referred to Full Benches for statements of general opinion about them. And no Full Bench, however numerous, however distinguished can lay down by ruling that Courts shall make certain inferences or assumptions of fact in future cases.”   

 

The decision reported in AIR 1963 Mys 115 put the difference between Sections 108 and 114 in this manner: “If presumptions arising under Section 114 which is a general section come into conflict with presumptions arising from provisions which can be called special provisions then presumptions arising under the general provisions must yield place to the presumptions arising under the special provisions”. It may be noted that the said decision mooted deleting of Section 107 as it would be detriment to the heirs of the deceased, the situation being death in unknown places and under unidentifiable circumstances is a matter of everyday occurence. In the light of the above and in view of the long line of binding precedents which holds that death cannot be presumed in any shorter period than seven years and for the reasons stated above, the decision reported in 1988 (1) KLT 45, which holds otherwise, has not laid down the correct law on the issue. 

 

When an younger and older person died in the same incident, whether it could be presumed that the older person died first? Section 184 of the Law of Property Act, 1925 in England, is in the following lines: “In all cases where, after the commencement of this Act, two or  more persons have died in circumstances rendering uncertain which of them survived the other or others, such deaths shall(subject to any order of the Court), for all purposes affecting the title to the property, be presumed to have occured in the order of seniority, and accordingly the younger shall  be deemed to have survived the elder”. It was held in 4 Right v. Netherwood  that “with subject to the priority, it has always appeared to me more fair and reasonable in these unhappy cases to consider all the parties as dying at the same instant of time, than to resort to any fanciful supposition of survivorship on account of the degrees of robustness”.  The House of Lords in 5 Wing v. Angrave held: “It cannot be assumed to be proved or probable or possible that two human beings should cease to breath at the same moment of time, for that is hardly within the range of imagination, and to adjudicate on such a principle, would, I think, be to proceed on false data.”

 

In India, in the decision reported in AIR 1922 Bombay 347 it was held: “ I think, we are entitled to say that the probabilities are in favour of the younger man surviving the elder”, which was followed in 18 IC 814.  Regarding the presumption of survivorship based on age, sex, health etc., AIR 1944 Calcutta 132 holds that “it is no less be no more than a purely artificial rule, and therefore, only an equally conjectural basis for ascertaining the truth. On these grounds, it would certainly be better to treat the question as one of fact to be disposed of on the evidence. If the evidence is sufficient to support a finding of survivorship, well and good, but where evidence establishes a prefect equipoise, the determining factor should be the rule regarding the burden of proof”. It is submitted that this view is more balanced and plausible to be applied as the answer to the question posed above.

 

In spite of the compulsory certainty of death infused by the rule of law, things could turn topsy turvy at times. The facts in the decision reported in 2014(3) MLJ 24 are that a lady was appointed on compassionate grounds by the Railways considering that her husband (who was arrayed as 3rd respondent in the case) was missing more than seven years and after applying Sections 107 and 108 of the Evidence Act. She was paid the terminal benefits such as gratuity, leave salary on the presumption of death of her husband. Now the turn of events: Her husband, who was presumed to be dead, sent in a representation on 8.1.2011 to the Railways, requesting for restoring him in service. Show cause notice was issued to his wife (widow?), and she was ultimately terminated from her job based on RBE No.164/98 dated 26.7.98 where powers are given to terminate the job if the missing employee resurfaces. The tribunal directed the Railways to reinstate her. It was challenged before the High Court. The Court directed to treat the husband to have compulsorily retired with the entitlement of pension and the lady was ordered to be issued with fresh appointment order with no counting of her seniority in the post.

Haunting uncertainties of life and death. But the lis must end.

 

Foot Note:

1. Taylor on the English Law of Evidence, Section 200

2  Corpus Juris Secundum

3  Phipsons Law of Evidence

4  (1815) 161 E.R. 1137

5  (1860) 8 H.L.C. 183

New  Vistas  Opened  up  for  Enforcement  of  Foreign  Arbitration  Awards

(By T.R. Aswas, Advocate,  High Court of Kerala)

 

With the judgment in ((2004) 2 SCC 105)Bhatia International v. Bulk Trading SA, the Indian Supreme Court held that Part I of the Act applied even to arbitrations seated outside of India, unless the parties had expressly or impliedly agreed to exclude Part I of the Act. Thereafter in (2008 (3) KLT Suppl. 1200 (SC) = (2008) 4 SCC 190)Venture Global v. Satyam Computers, the Supreme Court set aside the Arbitration Award made in London, under Section 34 of the Act. Foreign arbitrations, already regulated by the courts of the seat of arbitration, were thus exposed to intervention by Indian courts, which branded India as an arbitration unfriendly jurisdiction. Bhatia and Venture was later doubted on 16.01.2008 by a Division Bench of the Indian Supreme Court. Pursuant to the aforesaid order, the appeal was placed for hearing before a three Judge Bench, which by its order dated 1st November, 2011 directed the matters to be placed before the Constitution Bench on 10th January, 2012.

 

In April 2010, the Ministry of Law and Justice, with the objective of emphasizing the ‘minimum judicial intervention’ standard, had suggested an amendment to cure the lacuna created since the decision in Bhatia International.

 

The Constitutional Bench started its hearing in BALCO case on 10.1.2012 and on 6.9.2012 after laudable consideration of jurisprudence laid down by various Indian & foreign judgments and writings of renowned international commercial arbitration authors, ruled that findings by the Court in its judgment in Bhatia and Venture Global were incorrect in ((2012) 9 SCC 552). It concluded that Part I of the Arbitration and Conciliation Act, 1996 had no application to arbitrations which were seated outside India, irrespective of the fact whether parties chose to apply the Act or not, thus getting Indian law in line, with the well settled principle recognized internationally that “the seat of arbitration is intended to be its centre of gravity”.

 

The delay is obvious and this exactly was one of the reason for the Australian corporate-White Industries to invoke the (BIT) Bilateral Investment Treaty arbitration under UNCITRAL in July 2010 against the Republic of India, due to protracted delays in the Indian judiciary which kept an ICC Award dated 27.5.2002 against Coal India of around Aus. $ 4 million in the limbo for almost nine years in the Indian Courts, in enforcement and section 34 proceedings. The BIT Award against Indian Government, which is the first of its kind, was passed on 30.11.2011 wherein the Tribunal found India guilty of violating the India-Australia BIT because the Indian judicial system has been unable to deal with White Industries’ jurisdictional claim in over nine years. The tribunal held that the delay by Indian courts violated India’s obligation to provide White Industries with an "effective means of asserting claims and enforcing rights.”

 

However, the international community welcomed BALCO judgment because it restricts the ability of the Indian courts to intervene in offshore arbitrations, and restores Indian arbitration to the position enjoyed ten years ago. Post BALCO, by a spate of judgments the Indian Supreme Court has made it explicitly clear that Indian Courts will not interfere with foreign Awards and are willing to enforce such Awards in accordance with UNCITRAL Mode Law and New York Convention per judgments in Yograj Infrastructure, Srilal Mahal, Sakuma Exports, Enercon, World Sport Group, Reliance Industries etc.

 

Be that as it may, the enforcement proceedings relating to Foreign Awards in India which is governed under Part II of The Arbitration & Conciliation Act, 1996 still has long way to go through the Indian Courts. The kind of conventional defenses available in Indian Courts many a time makes the whole exercise a mockery. Borrowing the words of former GI, Arbitration matters dumped along with Civil matters needs to be rescued.

 

It is in these circumstances, by the latest Judgment dated 2nd October 2014 in Cruz City 1Mauritius Holdings v. Unitech Limited, the English Court has thwarted attempts to avoid enforcement and appointed Receiver by way of equitable execution over foreign assets to assist enforcement of a London-Award under Section 37 of the Senior Courts Act, 1981. The LCIA-London Award in the case was against an Indian Company, Isle of Man Company and two Cyprus companies. The Indian Company inter alia resisted the application stating that already Cruz City has moved the Delhi High Court for execution of the LCIA-Award and for appointment of Receiver over its assets, payment of the Award would infringe RBI/Indian exchange control regulations, and the Indian Court is unlikely to recognize appointment of Receiver by the English Court.

 

The English Court while considering the pleas has opined that “it appears that a first instance decision on the enforcement of a foreign award can take at least 2-3 years in India, while an appeal could take in excess of a further 4-5 years to be decided; the evidence is that until a decision on enforcement is made, there is no possibility of appointment of a Receiver by the Indian court”, and allowed application for appointment of Receiver.

 

The delay in the Indian judicial system here again seems to have persuaded the English Court to however finally allow the application for appointment of Receivers and now we need to wait and see how the Indian Courts honours the said English Judgment.

Justice V.R. Krishna Iyer,  the  Paragon  and  the  Polymath

(By V.K. Babu Prakash, Judge, Motor Accidents Claims Tribunal, Thalassery)

 

Justice V.R. Krishna Iyer has became a centurion, if his life is taken as a game of play, as he turns into hundred in his age. On his 100th birthday, it is apposite to write few words about his life and its ways to remind ourselves about his rich contributions and alert presence to safeguard the society from evil avalanches. It gives me shudder to write about the living legend V.R. Krishna Iyer. Such is the life and personality of that unique human being fighting, never retreating nor relenting for the people whose rights are dear to him than his personal accolades. What an energy and tremendous commitment he ensues to the cause which he espouses? To explain his mind and soul, it is best to chant the words of Saint Francis of Assisi, which Justice Iyer always likes to quote,

 

“Lord, make me an instrument of your peace

Where there is hatred, let me sow love

Where there is injury, pardon,

Where there is despair, hope,

Where there is darkness, light,

And where there is sadness, joy”.

 

Justice V.R. Krishna Iyer was born on 15.11.1915 to Rama Ayyar and Narayani Ammal at Vaidyanathapuram, a rural corner of Palghat, a small town in Malabar those days. Justice Iyer’s father Rama Ayyar began his career as a teacher for a short while in Haripad. Later, he qualified himself as a pleader. He set up practice as a lawyer in Quilandy in 1913 since his uncle was a pleader in the Munsiff Court there. Rama Ayyar was able to make his mark in the profession right form the beginning. In the years followed, Rama Ayyar became the leading civil lawyer of Quilandy and other Malabar precincts. Rama Ayyar had seven children, the first of whom was Venkiteswaran, while the second was Krishnan our Krishna Iyer the legend. He was followed by Ranganayaki, Vijayalakshmi, Meenakshi, Ramachandran and Lakshminarayanan.

 

Justice Iyer’s elder brother Venkiteswaran was always the topper in his class. But fate, in the form of cruel death sometimes plays its ugly game in the family, thereby shatters its thin fabric of happiness. Venkiteswaran died at the prime age of 24 years in the form of cancer. He was a mathematical prodigy and besides an enriching carnatic musician.

 

Justice Iyer’s sister Dr. Meenakshi was an outstanding scientist in the field of marine biology. She worked in India and America. She and Sarada Krishna Iyer learnt Sanskrit and Russian together. Dr. Meenakshi too died of cancer. Justice Iyer’s younger brother Lakshminarayanan took I.P.S. and became the D.G.P. of Madras and retired in 1986.

 

Justice Iyer was a bright student in his young days. He excelled in English and Mathematics. As Justice Iyer’s father was a busy lawyer, he grew up in the tutelage of his grandfather Venkateswara Iyer, a matriculate school master. But he was a brilliant scholar in English and Mathematics. He taught Justice Iyer in the intricacies of English grammar with sagacity and made him to chime and chant idioms and phrases even in dreams. It enriched his language skill which later became the famous justice Iyer diction which nobody can imitate.

 

Justice Iyer graduated from the Annamali University. He took his law from Madras Law College and called to the Bar in 1938. Obviously with his gift of the gab, no wonder, he became the leader of Tellichery Bar. He defended local Communist leaders who were prosecuted for murder and rioting cases. Eventually, he was attracted to Communism and its Philosophy.

 

While the bar practice of Justice Iyer was reaching its zenith, his marriage took place with Sarada an accomplished carnatic classic singer, a wonderful Veena player, a talented personality of many a facet.  He became the M.L.A. and Minister in the first Communist Cabinet of EMS in Kerala. Later, Justice M.S. Menon, the Chief Justice, High Court of Kerala wanted Justice Iyer to become the judge of the High Court of Kerala who recommended his name. Krishna Iyer was elevated from the Bar to the bench of Kerala High Court on 2.7.1968. Before that, while he was a junior, he had applied for the post of Munsiff on the advice of his father.

Mr. Sundaram, District Judge who was on the interview board realizing that Krishna Iyer could become an eminent lawyer advised Krishna Iyer to come later, since he was too young for judicial office. Had justice Iyer been appointed Munsiff he would have at the most retired as a District Judge, confined to some remote corner.

 

In 1971, Justice Iyer joined the Law Commission as a member. Then, elevating him to the Supreme Court came on the anvil. Though the Central Government was agreeable to the proposal, it did not materialize, as the Communist tag turned against him. Had he been elevated then, he would have become the Chief Justice of India. However, in July 1973, Justice Krishna Iyer and Justice P.N. Bhagavathy were sworn in as Supreme Court Judges. This illustrious pair worked on tandem on the principles of progressive jurisprudence and epistolary jurisdiction which opened the mighty gate of Supreme Court before common man who became awe stuck that justice is an affordable commodity to him as well. The rest is history. That living legend is still amongst us sometimes roaring, at times weeping and most of the times fighting, though has become fragile in health and age. His philosophy can be summarized in the beautiful words of Wordsworth, yet another dearest poet of Justice Iyer.

 

“The world is too much with us, late and soon. Getting and spending we lay waste our powers. Little use see in Nature that is ours”.

Road to an Awakening Judiciary - IV

(By Dr.K.B.Mohamedkutty, Senior Advocate and Former Law Faculty Dean)

 

Musicians thrill our souls; philosophers help us exercise our minds; the judges enhance the unit of justice during their tenure without rest. Hon’ble Mr. H.L Dattu, the Chief Justice of India, looking back his sojourn as the Chief Justice of the State of Kerala has remarked that judges of the Kerala High Court were hardworking and diligent. It is indeed a heritage of the past which is being continued. According to him a judge needs long hours of preparation and his work usually extends to sixteen hours. Without any slip of exaggeration, we can say that judges belong to a rare category who does work even when they sleep as some solutions are moulded in sleep without their knowledge. Lawyers who argued cases before the Chief Justice while he was in the Kerala High Court entertained a happy feeling that no case was lost or won in his court till the last word was spoken, though he might have expressed tentative views. The argument before His Lordship often attained the status of a “Grand Debate”. No doubt, judicial temperament plays a great role in maintaining an ideal court.

 

However, “Who is working without rest” is a perennial question answered differently. Vennikkulam, in his poetic diction brings to focus many a claimant. The sea proclaims in loud voice: “I am working without rest.” “No, it is me,” said the sea breeze. But the “Time” stressed that ever since the beginning of the Universe, time has unbroken existence and watchfulness as it is the present, the past and the future. But a village boy, negating such claims, asserted in low voice that the one who works incessantly is his “Mother.”

 

The lay public knows from their experience for more than half a century that the judiciary too is at work without rest. However, Parkinson’s Law is at work in the judiciary as work expands though personnel to do the same increase. However, proliferation of litigation is the chief reason. Necessarily, every judge needs to be a “demon of work”. Vaikom Mohamed Basheer, the renowned novelist, observed in his humourous style that by writing depositions of witnesses the fingers of Magistrate’s right hand were broken and the successor Magistrate found it impossible to read out what was written by his predecessor.

 

Great writers have said that hard work has its own compensations; it liberates you from hatred, malice and envy, because you have no time to stand and stare at such things. Owen Felltham (1602-1668) reminds those who are idle that though we do nothing , time keeps its constant pace and flies as fast as in idleness and in employment. According to him, “whether we play or labour or sleep, the sun passeth. But the difference which follows upon good actions is infinite from that of ill ones.” Those who studied the habits of human mind say that when a person desires to secure complete dedication in a particular work, it swallows all other works; he works risking enjoyment and sometimes peaceable existence. But it is lamentable that the role of judiciary is seldom recognised. It is just like, as Ben Jonson quipped: “We owe no thanks to rivers though they are immensely useful to mankind giving water to drink, breeze to refresh and facility for navigation. We don’t give thanks to cow for giving us milk or trees for giving us fruit and shade”.

 

A Rising Star

 

Today the credibility of the Court is rising rapidly. Unfortunately, the political wing of the State degenerated from top to bottom. Consequent on the fall of political power at the highest level, the Supreme Court became a centre of political power gradually availing of this opportunity to expand its area of adjudication to every conceivable aspect of administration. It has become the most powerful court in existence in the world of democracy.

 

The people are now increasingly court-watchers, as well as political-watchers. The power and prestige of the judiciary are nothing but people’s power and it has the mandate to speak for the people. The people trust the judiciary immensely even without any process of electing them in a parliamentary process. The High Court in each State and thousands of lower courts through out India work like a nervous system drawing sustenance from the Constitution and the laws. The inflow of large number of cases to the court reaffirms faith of the people in the judiciary. The judiciary has become the right eye and the left eye of the nation. Today the people consider court as a safety-valve against violence in different forms. The people expect judiciary to weave fine fabric of law and justice taking into account the tradition and habit of the society, the turmoil of thecurrent legal problems and sometimes even the unborn future.

 

Sustainable Growth of Democracy

 

The view that the popular election of representative Government gives sustenance to democracy is correct, but if justice system foils even slightly democracy fails. As Beethoven made music human, every step in justice delivery must have a human touch. The experience in countries like Latin America would show that political process devoid of justice system through established legal apparatus, may lead to disharmony and chaos.

 

The Legislative Assemblies in the States and the Parliament are not in continuous function, but the judicial apparatus is in continuous operation. This is necessary, because the Executive has an inherent tendency to do things which may harm the people and abstain from doing what is good for them. It is certain that but for the judiciary, the Executive and the Legislature would have been despotic. The people approach the court to seek rescue from unlawful deeds and to advance public law needs. This is helpful to avert violent turn in social life. The court must also follow the advice of Justice Jerome Frank that people must be acquainted with the truth about the working of the judiciary. All powers of Judiciary are no more than a “puff of wind.” viz-a-viz people’s power. It is this realization that led to the declaration of Justice Jackson of the U.S. Supreme Court that “we are not final because we are infallible. We are infallible because we are final.”

 

Activist Role Not Later Development

 

There are times when judiciary takes the role of an activist. Judicial activism is not a new development. Chief Justice Coke of England was removed from the office because of his judicial activism. King James-I disliked his verdicts. So the King himself entered the Royal Court and assumed jurisdiction. The King was omnipotent in those days. And yet Coke was bold enough to declare before the King that cases ought to be determined by court according to law and not by the whims of the King. For this Coke was charged with the offence of treason, but he bluntly told the King the limit of King’s power. He said in polite language that the King should not be under man, but should be under God and the Law. Historians consider this incident in 1608 as the first judicial activism.

 

Two hundred years later Coke’s declaration re-echoed in the U.S.A. Chief Justice Marshall of the Supreme Court invalidated a congressional statute in Mulberry v. Madison. His judgment nullified an order of the outgoing President, which was detested by his opponents who supported new government. Naturally, the new government welcomed the decision of the Court as it served their interest, but without knowing the power of judicial review packed in it. The judgment cleared the way of judicial review in later years. Chief Justice Earl Warren’s Court in the U.S.A. declared removal of racial discrimination in the U.S. schools which was an activist step in the history of the U.S.A. In India the Supreme Court by exercising its activist role enhanced the scope of Article 21 and other Fundamental Rights so as to take within its ambit the whole gamut of social rights, right to environment, right to food, police reforms, emancipation of women, scourge of black money , recognition of third gender etc.

 

Court of Peoples' Conscience

 

TheJudiciary is not elected body. It is said that people do not get chance to weigh their performance or merit from time to time. However, judiciary is not endowed with any policy formulation or its implementation. When government of a political party in power does not make necessary laws, or passes bad laws or pursues bad policies the party is accountable to the people. No judge is allowed to go free without scrutiny if his judgment goes wrong. He is subjected to vigilant gaze of the Bar and fair criticism and comments by the public. Judgments are appealed against. Liberty of thought and freedom of expression work as great social force against arbitrary ways. When the spirit of thought and expression dies in the heart of the people, all human institutions including judiciary suffer set back. As Gandhiji said there is a higher court of justice and that is the Court of People’s Conscience. No judiciary can afford to neglect it. The people gave such power to the judiciary knowing fully well that the Executive manned by politicians might make laws leading to mock democracy. The balance of power is kept within bound under the Constitution. The judicial function must aim at building up a bridge to the future over the stormy waves of social and political issues of the present. The judiciary should not be a prey to insensitivity when freedom of the people is in danger as had happened during the Emergency and in the Bhopal Gas Tragedy Case. Freedom is on the opposite side of fear; one attains it when fear is out of the mind leading to unrestricted enjoyment of natural life. The desire of the people of India that Rule of Law should be preserved even against persons in high political positions is being fulfilled through some recent judgments. It is indeed the mark of an Awakening Judiciary.

Precedents on Precedents; Choice between Conflicting Ratios of

Equal Strength;An Area of Precedential Chaos

(By Nizam Azeez Sait, Advocate, Alappuzha)

 

Introduction

 

In Jurisprudence, Precedent means judgment or decision of a court of law cited as an authority for the legal principle embodied in it. Article 141 of the Constitution of India reads as below:

 

“The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

 

But as regards the application of Precedents of the High Courts there is no direct Constitutional provision as Article 141. A three Judges Bench of the Supreme Court considered the question in M/s. East India Commercial Co. Ltd. Calcutta & Anr. v. Collector of Customs, Calcutta (AIR 1962 SC 1893), the Court referred Articles 215, 226 and 227 of the Constitution and held as below:

 

“It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working: otherwise, there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence.”

 

Judgments of Courts of law are not computer out puts ensuring consistency and absolute precision, but they are the products of human thoughts based on the given set of facts and the interpretation of the applicable law. Generally our Superior courts have been incumbent by erudite and scholarly Judges (Both Pre and Post Collegium eras), whose thoughts go great heights and result in fascinatingly sound verdicts, of course aided by able lawyers. Unlike Preprogrammed Computers, such human thoughts trek new terrains in interpreting the law and are capable of coming out with ideal innovative rulings/declarations of law in furtherance of justice as the situations demand. Therefore on many areas of Law we have doubtlessly authoritative judgments of Superior Courts with remarkable clarity and acceptability, which in addition to resolving the dispute between the parties in that case, also serve as beacon lights or precedents for the Subordinate Courts on subsequent similar issues. But Law is an immensely vast canvass and there are lots of blurred areas in it, both Statutory and Precedential. Legislature cannot conceive and directly provide for all the practical exigencies that may arise in future. Language of statutes has its limitations, hence at times it fails to convey with clarity the intention of the Legislature giving rise to ambiguity. Justice is an abstract concept and it can become Judge centric. Hence instances are countless when equally learned and competent Judges of the Superior Courts tend to put entirely different interpretation on the same provisions of law. There are also instances when the same Judge takes different views on the same question in different cases, mostly because of better wisdom of the future day and rarely even due to forgetfulness of the earlier judgment. Absolute objectivity in court rulings will remain a dream only.

 

Benjamin Cardozo explains this phenomenon as below:

 

“It is said to be the product of the Judge’s philosophy, his logic, his understanding of history, social reality, his sense of right and his perceptions of justice” (The Nature of the Judicial Process)

 

I would add one more attribute to the above, i.e., the persuasive caliber of the Lawyers appearing in the case. The ways in which cases are presented by the lawyers greatly influence the verdicts and the quality of judgments. Referring the heights to which the art of advocacy rose in the landmark Kesavananda Bharati case, it is often said that the legendry lawyer Nani Palkivala saved the Indian Constitution.  In this regard Justice Hans Raj Khanna said in his book ‘Neither Roses Nor Thorns’, as under:

 

“The height of eloquence to which Palkivala rose on that day had seldom been equaled and never surpassed in the history of the Supreme Court.”

 

Justice Khanna also said:

 

“The Judges in fact, shine with reflected glory, for their judgments verily reflect the industry of the counsel appearing before them.”

 

Conflicts Within a Bench

 

In the landmark ‘Basic Structure case’ (Kesavananda Bharati v.State of Kerala (AIR 1973 SC 1461)), which upheld the general power to amend but put an embargo on the amendment powers of the Parliament to alter the Basic Structure of the Constitution, the Supreme Court was split from the middle and the case was decided by a narrowest majority of 7: 6.  All the 13 Judges wrote their own Separate Judgments. The famous dissenting Judgment rendered by Justice Khanna in the otherwise infamous Habeas Corpus case (Addl. District Magistrate v. Shivakanth Shukla (AIR 1976 SC 1207) presents a classical instance of righteous dissenting judgment where a selfless Judge lost Chief Justiceship of India for deciding a case fearlessly according to his conscience. To the displeasure of the Government of the day Justice Khanna held that:

 

 …….Art.21 cannot be considered to be the sole repository of the right to life and personal liberty, even in the absence of Art.21 in the Constitution, the State has got no power to deprive a person of his life or personal liberty without the authority of law and that is the essential postulate and basic assumption of the rule of law in every civilised society…

 

Khanna J. quoted Chief Justice Hughes in the concluding part of his dissenting Judgment as under:

 

“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.”

 

In this case the error was in fact erased by the Parliament itself by the 44th Constitutional Amendment which curtailed the power of the President to suspend Article 21 during the Emergency.  We have seen dissenting judgments in many other important verdicts also.

 

Conflicts  Between  Benches

 

Now there is no dispute that a larger bench decision will prevail over a smaller bench decision. But the conflicting judgments on a particular point by co-equal benches cause enormous difficulty to lower court Judges who are bound by the ratio of the law enunciated by the superior Courts. In the absence of Constitutional or Statutory guidance in this regard, the precedents and practice have not been uniform and consistent. There have been three mutually repugnant streams of judgments/precedents on this very important and oft recurring question of law. One view is that in case of conflict between two judgments, later decision should be followed; another view says that decision earlier in point of time should be followed; yet another view is that the Court should follow the decision which is more accurate and better in point of law, whether it be earlier or later. This Article is an attempt to analyse the above three tier conflict of precedents on the issue. The above views are examined below.     

 

Some of the  Judgments Expressing the View that Subordinate Courts are Bound to follow the earlier precedent.

 

Sundeep Kumar Bafna v. State of Maharashtra & Anr.(K. S. Radhakrishnan; Vikramajit Sen, JJ.) (2014 (2) KLT 809 (SC) = AIR 2014 SC 1745).

 

 In this recent case, the question before the 2 Judges Bench of the Supreme Court was whether the High Court could consider an application for permission to surrender before the court and for regular bail under Section 439 of Cr.P.C. The single bench of the Bombay High Court had rejected the application and held as under:

 

“the Appellant is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under S.167 of Cr.P.C. by the Magistrate and that order cannot be passed at the High Court level.”

 

The Two Judges Bench of the Supreme Court set aside the above order of the High Court inter alia relying on Niranjan Singh v. Prabhakar Rajaram Kharote (1980) 2 SCC 559) (3 Judge Bench), wherein Krishna Iyer, J. speaking for the Bench observed that:

 

 “He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.”

 

Another 3 Judges bench, Directorate of Enforcement  v. Deepak Mahajan (AIR 1994 SC 1775) ; later to  ‘Niranjan Singh’ observed as under:

 

“Thus the Code gives power of arrest not only to a Police Officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words ‘custody’ and ‘arrest’ are not synonymous terms.”

 

In ‘Sundeep Kumar Bafna’ the Division Bench of 2 Judges held:

 

“If the third sentence of para 48 is discordant to Niranjan Singh, the view of the co-ordinate Bench of earlier vintage must prevail, and this discipline demands and constrains us also to adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no sooner he surrenders before the police or before the appropriate Court.”

 

The bench further stated as under:

 

“It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”

 

An Analysis of the Correctness of ‘Sundeep Kumar Bafna’

 

There has been a traditional practice, since a long time, in the High Courts and the Supreme Court to the effect that when a smaller bench notices conflicting ratios of co-equal larger benches, having direct bearing on the issue before that bench, it refers the matter to its immediate larger bench or places the matter before the Chief Justice with a plea to constitute a sufficiently larger bench in order to have an authoritative pronouncement  to resolve the inconsistency between coequal benches. In this regard it was held as early as in 1961, by a 4 Judges bench of the Supreme Court in Jaisri Sahu v.Dubey (1961 KLT SN 9 (C.No. 18) (SC) = AIR 1962 SC 83), as follows:

 

 “ 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. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench….The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full bench.”

 

In, Delhi Development Authority v. Ashok Kumar Bahel  (AIR 2002 SC 2940) ; also, the Supreme Court emphasized the need to refer the case to a larger bench when conflicting views of co-ordinate benches are noticed, the court observed as under:-

 

 “ Inconsistency and contradiction in the orders passed by the same Court on the same point regarding the same scheme cannot be allowed to be continued or perpetuated…. It is a cardinal principle of rule of law that inconsistency and contradiction in the orders has to be avoided at all costs to bring about a certainty in the mind of the subordinate courts and the litigant public. This principle would stand violated in case two binding principles on the same point of the same Court are allowed to operate simultaneously.”

 

It is also to be noted that now it is well settled that a 2 Judges bench cannot directly refer a case to the Constitutional Bench of 5 Judges but it can only refer the case to a three Judges bench or place the matter before the Chief Justice. See, Pradip Chandra Parija & Ors.v. Pramod Chandra Patnaik & Ors. (2002 (1) KLT SN 29 (C.No. 34) SC = AIR 2002 SC 296), Hansoli Devi  (2003 (1) KLT SN 31 (C.No. 43) SC = (2002) 7 SCC 273) and also Central Board of Dawoodi Bohra - Community & Anr. v. State of Maharashtra & Anr. (2005 (1) KLT 486 (SC)  =  AIR 2005 SC 752), where in it is held as under;

 

“ A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration.”

 

See also the Full Bench Decision of High Court of Kerala in Peter v. Sara  (2006 (4) KLT 219 (F.B.)), which exhaustively dealt with the importance of adherence to precedents and the scope and limitations of the power of reference. In this case the Full Bench observed:

 

“..where a precedent is not followed and another decision rendered, in view of the conflicting position, the legal antinomy must be resolved by a Division Bench, Full Bench, Larger Bench, as the case may be, where one view would have to be formally overruled.”

 

It can be said that the above proposition/principle pointed out in ‘Jaisri Sahu’ has by its long recognition and adherence definitely metamorphosed into a rule of compelling stare decisis and the said practice have been  followed in the High Courts and the Supreme Court for more than 5 decades now.

 

With due respect, it is submitted that, in ‘Sundeep Kumar Bafna’ inspite of having such an established option of reference, the Division Bench of 2 Judges took upon itself to decide the correctness of a 3 Judges bench in ‘Deepak Mahajan’ and concluded that as regards the discordance of the third sentence of the  para 48 in ‘Deepak Mahajan’ with ‘Niranjan Singh’ the earlier vintage must prevail, which is ‘Niranjan Singh’.

 

It is submitted that the proposition laid down in ‘Niranjan’ is  correct and uncomplicated and is more appealing over the proposition  in ‘Deepak Mahajan’ that ‘mandatorily arrest should precede judicial custody’ on the basis of discussions on the powers of arrest of Magistrate under S.44 of Cr.P.C. It is doubtful whether S. 44 confers general power of arrest to a Magistrate at the pre- cognizance stage (crime stage) except when the offence is committed in his immediate presence. But the larger question is whether a division bench of 2 Judges by itself could declare a 3 Judges bench decision as per incuriam and of no precedential consequence, inview of a contrary 3 Judges decision which is earlier in time. The situation would be different when a Division Bench finds a larger bench’s decision as per incuriam of a statutory provision or of the decision of a further larger bench. In view of the above discussion, it is respectfully submitted that the Learned Judges in ‘Bafna’ missed to take note of the above well established proposition enunciated in a 4 Judges bench in ‘Jaisri Sahu’(supra) and the course adopted by the 2 Judges bench is not in accordance with the conventional principles of judicial discipline.  Therefore, with due respect, it could very well be concluded that the decision in ‘Bafna’ holding that ‘earlier vintage must prevail’ by adjudging the inter se legalities of two larger (3 Judges) coordinate bench decisions, itself suffers from the vice  of per incuriam of earlier larger bench decisions and is not in accordance with the settled ethos of Judicial discipline.

 

In ‘Bafna’ the two Judges Bench relied on the following passage in the Constitutional Bench decision in  Union of India v. Raghubir Singh  (1989 (2) KLT 168 (SC) = (1989) 2 SCC 754.

 

“What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a Superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.…”

 

There is no doubt that a Division Bench is bound by the law laid down by an earlier Division Bench decision of the same strength, when such decision is brought to its notice. But it cannot be said that the above passage in ‘Raghubir Singh’ covers a situation where the earlier decision evades notice of a co-equal Bench hearing the same question and a contrary decision is given without reference to the earlier decision and as laying down a proposition that in such a case of existence of conflicting judgments, only the earlier one would prevail. It is submitted that such an issue did not at all arise before the Court in ‘Raghubir Singh’ and was never addressed or decided.

 

It needs no reiteration that “a decision is an authority for what it decides and not what can logically be deduced therefrom.”

 

In the subsequent part of the very same paragraph in ‘Raghubir Singh’ it is stated as follows, which the learned Judges in ‘Bafna’ missed to take note of:

 

“This Court also laid down in Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj etc. etc. v. State of Gujarat & Ors. ((1975) 1 SCC 11), that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other.”

 

In ‘Acharaya Maharajshri’ (5 Judges Bench), it was contended that some observations in Khajamian Wakf Estates’ case (5 Judges Bench) (AIR 1971 SC 161) are inconsistent with Rustom Cavasjee Cooper’s case, popularly known as the Bank Nationalisation case(7 Judges Bench), the Court held:

 

“It is difficult to accept the submission that the views expressed in Khajamian Wakf Estates’ case,   are contrary to Rustom Cavasjee Cooper’s case. Apart from that this Bench cannot pass upon the correctness or otherwise of the views expressed in Khajamian Wakf Estates’ case. Besides, we do not even think that the submission is well founded even to merit reconsideration of the Khajamian Wakf Estates’ case.”

 

In view of the above discussions, it is submitted that the preposition put forth in ‘Bafna’ that ‘the earlier vintage must prevail’ cannot be considered as a binding precedent as it was rendered ‘per incuriam’ of the larger bench decisions. Moreover in ‘Bafna’ the matter was inadequately considered, it appears that the other point of views (later judgment proposition or matching authority proposition) were neither raised nor argued or considered, hence not even much persuasive value can be ascribed  to the observation in ‘Bafna.’

In this context it is apposite to mention that the Kerala High Court in Raman Gopi & Anr. v. Kunju Raman Uthaman  (2011 (4) KLT 458 (F.B.)), after referring to some Supreme Court Judgments, observed as under

 

“The caution expressed by the Apex Court in various cases mentioned above, that the High Court cannot refuse to follow a binding decision of the Apex Court, is important in this context. The application of the rule of sub silentio and that of per incuriam should be guarded….”

 

The above caution is in such sharp language that any Judge would think many times and some would possibly hesitate to decide that a judgment of the Superior Court is per incuriam. Judges may even attempt to resort to other means like “distinguishing” the judgment to avoid the use of the phrase ‘per incuriam’. There is no doubt that the Judgments of the Superior Courts are entitled to utmost respect and the subordinate Court should keep themselves with in the limits of judicial discipline and decorum and cannot critisise Superior Courts. But it is also the judicial duty of a Judge to say so when a Judgment of the Superior Court is plainly found to be per incuriam and decide the case before him accordingly.

 

Ganga C. v. Lakshmi Ammal  & Anr.(R. Basant, J.) (Kerala High Court), (2008 (2) KLT 306):-

 

In this case the issue before Justice R. Basant, was as under;

 

“Are the Criminal Courts jurisdictionally competent to impose a sentence of imprisonment in default of a direction to pay compensation under S. 357(3) Cr.P.C.?

 

After referring to the principles of victimology implicit in Section 357(3) Cr.P.C. and a threadbare analysis as to what ought to be the correct law, the Court favoured the view in Harikrishnan v. Sukhbir Singh & Ors. (AIR 1988 SC 2127), holding that a sentence of imprisonment in default of a direction to pay compensation under S. 357(3) Cr.P.C. is permissible. The Court also held that the contrary view in ‘Ettappadan Ahammedkutty v. E. P. Abdullakoya & Anr. (2008 (1) KLT 851 (SC)  was per incuriam and not binding and laid down the following proposition: 

 

“If any smaller or co-ordinate bench unfortunately overlooks or omits to refer to an earlier binding precedent of a larger or co-ordinate bench and a conflict… exists such later decision has no binding sway and must be reckoned as rendered per incuriam. Such decisionsper incuriam cannot be followed. Subordinate Courts with respect must choose to follow the earlier binding precedents notwithstanding the later per incuriam decision of the smaller or co-ordinate bench.” 

 

In coming to the said conclusion the court relied on some general observations of the Supreme Court, including the one in Mamaleshwar Prasad v Kanhaiya Lal (Dead) (AIR 1975 SC 907),  where Justice V.R. Krishna Iyer, as a passing reference observed as follows:

 

“Certainty of the law, consistency of rulings and comity of courts all flowering from the same principle converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.”

 

With due respect, it is submitted that the above passing passage or any of the Judgments of the Supreme Court referred in ‘Ganga’, cannot be taken as laying down the proposition that in case of conflict between co-equal benches the earlier one will prevail.

 

Jabalpur Bus Operators Association & Ors. v. State of M.P. & Anr. (2003 (2) KLT SN 110 (C.No. 141) M.P. (F.B.) = AIR 2003 M.P.81);  A Full Bench of Madhya Pradesh High Court, comprising of 5 Judges elaborately dealt with the issue and laid down as follows;

 

“In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding.…No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts.”

 

It is submitted that the above view is hypertechnical. Choosing between two conflicting ratios of equal strength of the Superior Courts for the purpose of dispensing justice at the grass root level, per se, would not militate against the hierarchical supremacy of superior Courts.

 

Some of the  Judgments Expressing the View that the Decision Later in Point of Time, Will Prevail Over the Earlier One

 

Joseph v. Special Tahsildar (2001 (1) KLT 958 (F.B.) A. V. Savant; C.J., K. S. Radhakrishnan; R. Rajendra Babu, JJ:-

 

The case related to the requirement of proof of protest under the 2nd proviso of  S.31(2) of the Land Acquisition Act 1894. In Writ Appeal No. 599 of 1994,Special Tahsildar, Land Acquisition v. Kariyamparambil Raghavan, a Division Bench of the High Court referred  the decisions of the Apex Court in Wardington Lyngdoh v. Collector, Mawkyrwat (AIR 1995 SC 2340) and Land Acquisition Officer v. Shivabai (1997) 9 SCC 710) and came to the conclusion that oral protest was necessary before the claimant could make an application under S.18 of the Act and on the basis of lack of proof of such protest, dismissed the claim. Whereas another Division Bench in Kannan v. Land Acquisition Officer  (1999 (2) KLT 643), preferred to rely upon the earlier decision of the Apex Court in Ajit Singh v. State of Punjab (1994) 4 SCC 67) and took a liberal view and allowed the claim. In view of the above conflict of views, case was referred to Full Bench and the main question involved in the reference was as follows:

 

“Can an oral protest be inferred to have been made merely because, subsequently, an application for reference has been made under S.18 of the Act?”

 

The Court after an independent analysis of the Provisions and also a survey of case laws held that the observation in para 5 in Ajit Singh’s case viz  “5...........Inasmuch as the appellants have filed an application for reference under S.18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation”, can neither be construed as the ratio or even an obiter in that case.”  To come to such a conclusion the court relied on the various observations of the Supreme as reiterated in United India Insurance Co. Ltd. v. Alavi ((1998 (1) KLT 951 (F.B.))  viz.

 

“…a decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution” (Delhi Transport Corporation v. D. T. C. Mazdoor Congress ((1991) Supp. SCC 600)

 

“Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent….A conclusion without reference to relevant provision of law is weaker than even casual observation”.       (State of U.P. v. Synthetics & Chemicals Ltd (1991)  4 SCC 139).

 

Then the Court incidentally expressed the view that the later decision must prevail over the earlier decision in a situation where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. The Court also referred to the following decisions inorder to prefer ‘Wardington’ and ‘Shivabai’ over ‘Ajit Singh’

 

(i) In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari  (AIR 1980 Bom. 341), a Division Bench of the Bombay High Court was dealing with a similar question under Art.141. It was held that in case of a clear conflict between two decisions of the Apex Court of equal number of Judges, the later decision would be binding on the High Court.

 

(ii) In Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd.(AIR 1980 Karnt. 92) (F.B.) a Full Bench of five learned Judges of the Karnataka High Court held that if two decisions of the Apex Court on a question of law cannot be reconciled and one of them was by a larger Bench while the other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by the High Courts and other Courts. However, if both such Benches of the Apex Court consists of equal number of Judges, the later of the two decision should be followed by the High Courts and other Courts. This opinion of the Full Bench is to be found in para 12 at page 95.

 

Strangely the Court also relied on the diametrically opposite proposition laid down by S.S.Sandhawalia, C.J. in the Full Bench decision in Amar Singh Yadav v. Shanti Devi
(AIR 1987 Patna 191 (F.B.)) to prefer ‘Wardington’ and ‘Shivabai’ over ‘Ajit Singh’. The Court in ‘Joseph’ observed as follows;

 

“(iii) In Amar Singh Yadav v. Shanti Devi (AIR 1987 Patna 191 (F.B.)), a Full Bench of the Patna High Court held that where there is a direct conflict between two decisions of the Apex Court rendered by Benches of equal strength, the High Court must follow that judgment which appears to it to state the law more elaborately and accurately. The said observations are to be found in para 24 of the judgment at page 201.”

 

Raman Gopi & Anr. v. Kunju Raman Uthaman (2011 (4) KLT 458 (F.B.) (3 Judges Bench) :-

 

The question involved in the case was whether ‘merger’ will apply for deciding the limitation period for filing Execution Petition, when the petition for condonation of delay is dismissed and consequentially appeal is also dismissed.

 

In Chandi Prasad v. Jagdish Prasad  (2004 (3) KLT 654 (SC)  = (2004) 8 SCC 724 ), Supreme Court observed as follows:

 

“However, when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply.”

 

Whereas in Shyam Sunder Sarma v. Pannalal Jaiswal ( 2005 (1) KLT  198  (SC) = AIR 2005 SC 226),  the Supreme Court expressed a contrary view as quoted below:

 

“An appeal registered under R.9 of O.41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is never the less a decision in the appeal.”

 

In ‘Raman Gopi’ the Court held:

 

“Therefore, the conflicting decisions rendered in Chandi Prasad’s case and Shyam Sunder Sarma’s case, are by co-equal Benches. What shall be the principle to be followed by this Court and the subordinate Courts in such circumstances is the question that has arisen for consideration herein, especially in the light of Art.141 of the Constitution of India.

 

In fact, as far as this Court is concerned, the very same legal issue is concluded by a Full Bench of this Court inJoseph v. Special Tahsildar (supra) wherein it was held that in a case of conflict between two decisions of Benches of equal strength of Judges of the Apex Court, the decision later in time will be binding.”

 

The Court also cited the following Judgments which expressed the view that in case of such conflict the later decision will prevail, viz, Gujarat Housing Board, Ahmedabad v. Nagajibhai (AIR 1986 Guj. 81(F.B.),Gopal Krishna Indley v. 5th Addl. District Judge, Kanpur & Ors.(AIR 1981 All. 300) (Allahabad High Court), Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. (AIR 1980 Karnt.92(F.B.), Deputy Commissioner v. Anandan (1987 (1) KLT 192);   Krishnan Namboodiri’s case  (1992 (2) KLT 803). etc

 

Analysis of ‘Joseph’ and ‘Raman Gopi’

 

In ‘Raman Gopi’, the court extensively dealt with the ancillary aspects which have a bearing on the main issue, viz, the distinction between ‘ratio’ and ‘obiter’ and what constitute a binding precedent, the expression ‘law declared’ under Art.141, doctrines of  “sub silentio” and “per incuriam”, Principle of ‘stare decisis’ and the circumstance under which the Superior Courts could overrule its own decisions etc. etc. and in the process surveyed through innumerable Judgments of the Supreme Court and High Courts. It is submitted that the Judgment in ‘Raman Gopi’ is a very worthy single point referencer on all the above aspects. But regarding the main issue, even though an argument was raised by the Counsel, that the subordinate courts would have the freedom to choose the judgment which it considers to be better in point of law and a few Judgments of other High Courts were cited in support, it appears from the tenor of the judgment that the Court did not go in to the intrinsic merit of such a contention but on coming across the bald observation in the co-equal bench (three Judges) in ‘Joseph’(supra) perfunctorily endorsed the view that the later decision will prevail. In ‘Raman Gopi’ the Court observed:

 

“In fact, as far as this Court is concerned, the very same legal issue is concluded by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958(F.B.)”

 

But a close reading of ‘Joseph’ would show that the main point on which it preferred  ‘Wardington’  and ‘Shivabai’ cases over ‘Ajit Singh’ is on the analysis of the provisions of the Land Acquisition Act 1894 and on the finding that the observation in ‘Ajit Singh’ was not a ‘ratio’ as referred above. The Bench in ‘Joseph’ observed as under:

 

“..to say that making of an application under S.18(1) is, by itself, enough evidence to hold that protest must have been lodged at the time of receiving the payment is, in our view, wholly impermissible in the scheme of S.31 and 18. We are, therefore, unable to agree with the broad proposition stated by the Division Bench of this Court in Kannan’s case as indicated above.”

 

In coming to the conclusion that ‘Ajith Singh’ is not binding, the court as an ancillary/second reason, observed that ‘later decision will prevail’, but the court also relied on the diametrically opposite proposition laid down by S.S. Sandhawalia, C. J. in the Full Bench decision in Amar Singh Yadav v. Shanti Devi (AIR 1987 Patna 191 (F.B.)) as yet another reason. In this circumstance it is submitted that the precedential status of the observation that ‘later decision will prevail’ is in serious jeopardy as it cannot stand together with the proposition in‘Amar Singh’, which confers option to choose from the conflicting judgments, though both the propositions supported the ultimate decision in ‘Joseph.’

 

It is submitted that the observation in ‘Joseph’ that the ‘later decision will prevail’ cannot be considered as laying down an authoritative precedent in view of the circumstances mentioned above. 

 

In this context it is worth referring to the following observation of Delvin J., in Behrens v. Pertraman Mills((1957 (2) QB 25):

 

 “If the Judge gives two reasons for his decisions, both are binding. It is not permissible to pick out one as being supposedly the better reason and ignore the other one; nor does it matter for this purpose which comes first and which comes second. But the practice of making judicial observation obiter is also well established. A Judge may often give additional reasons for his decision without wishing to make them part of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of the precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance. This is the matter which Judge himself is alone capable of deciding, and any Judge who comes after him must ascertain which course he has adopted from the language used and not by consulting his own preference.”

 

The plea that ‘Joseph’ requires reconsideration was rejected in ‘Raman Gopi’, in this regard it was observed as under;

 

 “….the learned counsel is not right in submitting that in all cases where a co- equal Bench did not notice an earlier decision of another Bench, it will be per incuriam and hence need not be followed by the High Courts and Subordinate Courts. That is not the only test laid down by the Apex Court in various decisions, we have discussed above. Therefore, we do not find any reason to refer the matter to a larger Bench.”

 

It is submitted that, neither ‘Joseph’ nor ‘Raman Gopi’ gave any reasons for holding that the ratio in the later decision will/must prevail, except stating that some other High Courts have held so. It has to be realized that mechanical adherence to later decision will hinder the cause of justice in many cases and the issue needs to be revisited by a larger bench. 

 

Some  of  the  Judgments  Expressing  the  View  that  Subordinate  Courts  Would  Have the  Option  to  Choose  the  One  Which is  Better  in  Point  of  Law.

(Matching  Authority Proposition)

 

Indo Swiss Time Limited v. Umrao And Ors. (AIR 1981 P. & H. 213 (F.B.)):- The question involved in this case before the Full Bench of Punjab & Haryana High Court was whether a company for whose benefit land is acquired under the provisions of the Land Acquisition Act, 1894, can be impleaded as a party in the Court of the District Judge in a reference preferredunder Section 18 of the Act. The court considered the apparent conflict of views of the co-equal benches of the Supreme Court in this regard.

 

In Himalayan Tiles and Marbles (P) Ltd. case (AIR 1980 SC 1118), the Supreme Court had observed as under;

 

“…since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money. For this purpose, the company could undoubtedly appear and adduce evidence on the question of the quantum of compensation.”

 

Whereas in Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel ((1970) 1 SCWR 183), the Supreme Court negating the locus standi of the Municipal Corporation, held that the Municipal Corporation for whose benefit the land had been acquired could not maintain an appeal in the Supreme Court against the judgment of the High Court.

 

In view of the above, the Full Bench of the High Court considered the principles to be followed on the question of choice between the conflicting views of the co-equal benches of the Apex Court. Chief Justice S. Sandhawalia, held as below:

 

“ Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior court are of co-equal benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extent than both of them cannot be binding on the courts below. Inevitably a choice though a difficult one has to be made in such a situation. On principles, it appears to me that the high Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant.”

 

In coming to the above conclusion the Chief Justice inter alia relied on a few High English Authorities including,Hampton v. Holman ((1877) 5 Ch D 183(Jessel M. R), Miles v. Jarvis (1883) 24 Ch D 633, (Kay, J) and Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718.

 

Further the Chief Justice quoted with high regard and approval the view of the great constitutional visionary Sri. H.M Seervai, as under:

 

“Even though it is perhaps unconventional to quote a living authority, it deserves recalling that Mr. Seervai in his latest edition of his authoritative work in the Constitutional Law of India has opined as follows :- “*** But judgments of the Supreme Court, which cannot stand together, present a serious problem to the High Courts and to subordinate Courts. It is submitted that in such circumstances the correct thing is to follow that judgment which appears to the court to state the law accurately or more accurately than the other conflicting judgments.”

 

The Chief Justice also observed:

 

“I am keenly aware of the great difficulty of making a choice between the decisions of a Superior Court when they are in direct conflict with each other. However, when such divergence arises and the litigants’ fortune depends thereon the issue cannot possibly be evaded. Obviously in such a situation it is not the province of the High Courts or the subordinate Courts to comment on the judgments of a Superior Court which are patently entitled to respect. Its plain duty in the interest of justice is to respectfully follow that which appears to it to state the law accurately or in any case more accurately than the other conflicting judgment.”

 

The Chief Justice after elaborate deliberations came to the conclusion that‘Himalayan Tiles and Marbles (P) Ltd’ was better in law and followed it over ‘Municipal Corporation of the City of Ahmedabad’. The other 2 Judges in the bench fully agreed with the principles laid down by the Chief Justice on the question of choice between conflicting views. But applying the above very same principle, in dissent to the Chief Justice both the Pusine Judges held that ‘Municipal Corporation of the City of Ahmedabad’ is better in law and favoured it, over ‘Himalayan Tiles and Marbles (P) Ltd’.

 

 Amar Singh Yadav And Anr. v. Shanti Devi & Ors  (AIR 1987 Pat 191):- After a few years question identical to the one in ‘Indo Swiss Time Limited’ (supra) arose before the Patna High Court,  Justice S. Sandhawalia was then the Chief Justice of the Patna High Court. The Judgment of the Full Bench was delivered by the Chief Justice. The Principles enunciated in ‘Indo Swiss Time Limited’ were reiterated.  Both the Pusine Judges in the bench this time fully concurred with the Chief Justice and held that ‘Himalayan Tiles and Marbles (P) Ltd’ was better in law. Chief Justice S.Sandhawalia, also dealt with and assailed the majority view in the above referred ‘Govindnaik G. Kalaghatigi’ as under;

 

“ I am not unaware that in Govindnaik G. Kalaghatigi v. West Patent Press Company Limited (AIR 1980 Karnt. 92 (F.B.)), a narrowly divided Full Bench has taken the view, by majority of three : two, that in such a situation, the later of the two decisions should be followed. A perusal of the judgment would, however, show that, in fact, there were two questions firmly posed before the Full Bench — firstly that where there was a conflict of two decisions of the Supreme Court of unequal Benches, which one is to be followed and, secondly, when these decisions are of co-equal Benches, then which decision is to be followed. It seems somewhat patent that the majority view adverted to the first of the two questions alone, and, there does not appear to be any discussion whatsoever on the second question. The minority decision, however, while agreeing with the majority view on the first question, adverted to the second question and considered the matter in detail, concluding as follows : — “.....It seems to us, therefore, the High Court would be well advised to consider which of two conflicting decisions it will follow in the interest of the administration of justice and it ought to follow that which is better in point of law than in point of time.”

 

With great respect, I am inclined to wholly agree with the aforesaid view of the minority and it bears repetition that the majority view does not seem to have even adverted to this question in essence.”

 

Chandran v. Excise Inspector(K. T. Thomas, J.)  (1989 (2) KLT 845) :-  In this case the question posed before Justice Thomas was whether a criminal appeal (which is otherwise ripe for hearing) be dismissed for default or for non-prosecution? In Ram Naresh Yadav v. State of Bihar (AIR 1987 SC 1500), a bench of two Judges had observed that “the court can dismiss the appeal for non-prosecution and enforce discipline” whereas, in Shayam Deo v. State of Bihar (AIR 1971 SC 1606) another bench of two Judges adverted to the provisions of the Code of Criminal Procedure and laid down the law in the following lines:

 

“..a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the hearing of the appeal in order to enable them to appear or should consider the appeal on merits and pass final orders.”

 

Justice Thomas, held that the observation in ‘Ram Naresh Yadav’ is not a ‘ratio’ and cannot be held to be a ‘Declaration of Law’. Further on the question of choice between conflicting decisions of the Supreme Court, quoted extensively from the above ‘Amar Singh’ with utmost appreciation and approved the view that in case of conflict, the decision better in point of law should be followed. 

 

A. M. Bholanath Karmakar & Ors. v. Madanmohan Karmakar & Ors.(AIR 1988 Cal. 1, (F.B.) The court observed:

 

“….view appears to us to be in perfect consonance with what our ancient Jurist Narada declared Dharmashastra Virodhe To Yuktiyukta Vidhe Smrita—that is, when the Dharmashastras or Law Codes of equal authority conflict with one another, the one appearing to be reasonable, or more reasonable is to be preferred and followed.

 

Where there are contrary decisions of the Supreme Court rendered by Benches of equal strength, the High Court, in theory, being bound by each one, is, in effect, bound by none and is not necessarily obliged to follow the latter in point of time, but may follow the one which, according to it, is better in point of law.”

 

The court further cited the following reasons in support of the above proposition: “It is true that if there are two contrary legislations enacted by the same Legislature, the later would impliedly repeal the earlier and would be the binding law. But we do not think that this legislative anology would at all be apposite and can help us in solving the question before us because the very same Legislature can always repeal or alter its own law, even impliedly, while over-ruling being an act of superior jurisdiction, one Bench can not overrule expressly or by implication, a decision of a co-equal Bench. It is also true that the view that when there are conflicting decisions rendered by co-ordinate authorities, the later decision would govern us, would be conducive to certainty in the field of law. But the same certainty would also be achieved if it is also ruled that the later Bench being not competent to overrule the earlier decision of a co-ordinate Bench, the earlier decision would still continue to be the good law….We are, however, inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision and, as indicated hereinbefore, and as has also been indicated by the Supreme Court in Atmaram, the subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter of course, to follow either the former or the later in point of time, but must follow that one, which according to it, is better in point of law. As old may not always be the gold, the new is also not necessarily golden and ringing out the old and bringing in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of co-ordinate jurisdiction.”

 

Though the court gave cogent reasons as above for favouring the proposition of ‘option to choose’ but ultimately left the question open to be decided on a more suitable occasion where such a question would squarely fall for determination.

 

 Madras High Court in R. Rama Subbarayalu v. Rengammal (AIR 1962 Mad 450(F.B.), observed:

 

  ‘where the conflict is between two decisions pronounced by a Bench consisting of the same number of Judges, and the subordinate Court after a careful examination of the decisions came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one’.

 

 Nagpur High Court in D.D. Bilimoria v.Central Bank(AIR1943 Nag. 340)observed:

 

 ‘the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other.’

 

Madhya Pradesh High Court in Smt. Kalabai Choubey & Ors. v. Rajabahadur Yadav & Anr. (AIR 2002 M.P. 8) and RajastanHigh Court in Jaipur v. M/s. Himalaya Paper (Machinery) Pvt. Ltd., New Delhi (AIR 1990 Raj. 120), have also taken similar views, conferring option to choose from the conflicting ratios the one which the court considers to be better in point of law.

 

Atma Ram v. State of Punjab(S. R. Das, C. J. I. ; N. H. Bhagwati; B. P. Sinha; K. Subba Rao; K.N. Wanchoo, JJ.) AIR 1959 SC 519) :- In this case the Constitutional Bench of the Supreme Court was called upon to examine the constitutionality of the provisions of the Punjab Security of Land Tenure Act . The Apex Court noticed conflict of views of two Full Bench Decisions of the Punjab High Court as regards the interpretation of the word ‘estate’ in Art. 31 A of the Constitution as to whether it will include portion of the estate also (Application of the Maxim “the greater contains the less” -’Omne majus continent in se minus’). The Supreme Court while endorsing the view that Art.31A of the Constitution applied equally to portion of the estates also, observed as under:

 

“…. The later Full Bench case referred to above was decided by three Judges, including Bhandari C. J., who agreed with the judgment of the Court delivered by Grover J. Perhaps, the better course would have been to constitute a larger Bench, when it was found that a Full Bench of three Judges was inclined to take a view contrary to that of another Full Bench of equal strength.Such a course becomes necessary in view of the fact that otherwise the subordinate courts are placed under the embarrassment of preferring one view to another, both equally binding upon their.In our opinion, the view taken by the earlier Full Bench is the correct one. The learned Chief Justice who was a party to both the conflicting views on the same question has not indicated his own reasons for changing his view.”

 

It is often rightly reiterated that: “An obiter cannot take the place of the ratio and Judges are not oracles”, “observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute” and that “It is not a portable task to extract a sentence here and there from a judgment and to build upon it.”

 

Still it is submitted that, the above underlined observation, rendered by the bench comprising a battery of 5 most eminent Judges of the Supreme Court, indicating their view that the subordinate courts would have option to choose from the conflicting judgments of co-equal benches, though not the ‘ratio’ of the case, would carry serious persuasive value in supporting the school which favours option to choose between conflicting judgments of co-equal benches.  

 

Evaluation – An Attempt to Arrive at the Correct Law

 

In Young v. Bristol Aeroplane Co. Ltd. (1944) 1 K.B. 718), the Court of Appeal held: “..the court is unquestionably entitled to choose between the two conflicting decisions.” After analyzing English law in this regard in general and the ruling in Young v. Bristol in particular, Prof. Fitzjerald in the International classic work-‘Salmond on Jurisprudence’ (twelfth edition, Indian reprint, Page 27), opined as under:

 

“The earlier case can be disregarded because of the subsequent inconsistent decision on the same level of authority, and the later case can be disregarded because of its inherent vice of ignoring the earlier case.  Where authorities of equal standing are irreconcilable in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be. However, it takes a some what bold judge to disregard a precedent handed down by a court of higher standing on the ground that the decision was per incuriam.”

 

It appears that in America, as it is in India, there are different view points on the issue, predominant view being the one which confers the option to choose the ‘ratio’ which is better in point of law (See Corpus Juris Secundum 2005 Edition Vol. 21 P 200)

 

When there is no direct statutory prescription on a matter, the thoughts and views based on justice, equity and good conscience of the great legal brains/luminaries, serve as search lights to remove the darkness. In this sense the above said reasoned views of Prof. Fitzjerald and Sri. H.M Seervai should command great weight.

 

The High Courts and the subordinate courts do not have the option to refer the matter to the larger bench of the Supreme Court to resolve the inconsistency, which the smaller benches of the Supreme Court only would have. And it is not practically possible for every litigant to approach the Supreme Court in pursuit of deserved justice, owing to money, time and other constraints. It is submitted that mechanical adherence to earlier or later Judgment to attain uniformity would hamper dispensation of justice at the grass root court level and is not justifiable. Artificial and strict technicalities that hamper justice would serve no useful purpose. To quote Justice V.R. Krishna Iyer: “Courts are to do Justice and not to wreak the end product of technicalities”.

 

It is submitted that the above referred detailed and convincing reasons spelled out in Indo Swiss Time Limited (supra), Amar Singh Yadav(supra), A. M. Bholanath Karmakar (supra) etc., in support of the view that the subordinate courts would have the option to choose the judgment of the superior court which is better in point of law, out weighs the reasons given for theories favouring mechanical adherence to the earlier or later judgment. The said view would facilitate rendering of justice at the grass root court level in maximum cases.   

 

It is submitted that when two ‘ratios’ of equal strength of the superior courts stand side by side conflicting with each other, merits of the ‘ratios’ alone should be the criterion for opting one over the other and not the mere fortuitous circumstance of the time and date on which they were rendered, otherwise, it would be at the cost of Justice.

 

Conclusion

 

 In view of the discussions above it is submitted that:

 

1. The observation in ‘Sundeep Kumar Bafna’ that ‘the earlier vintage must prevail’ when there are conflicting views of co-ordinate benches, cannot be considered as a binding precedent.

 

2. ‘Raman Gopi’ requires reconsideration by a larger Bench.

 

But the best solution to bring an end to the divergent views and the resultant confusion would be to add rational explanations in Article 141 by an amendment of the Constitution. When Art.141 was framed, the Constitution makers might have contemplated that different Benches of the Supreme Court would always speak with one voice, on the same issue, which has not been the case. It is submitted that Law Commission should look into such an important matter and come up with credible recommendations.

 

Tailpiece

 

The recurrence of conflicting judgments persuaded Veteran Constitution Lawyer Fali S.Nariman to suggest that two Judge Bench Judgments shall not be within the purview of precedents under Art. 141 of the Constitution.  His words, while delivering the Inaugural lecture of the Lecture Series organised by the Supreme Court Bar Association, in the presence of the Chief Justice, are quoted below:

 

“Let us be frank — the law laid down in Bench decisions of two judges is quite often hopelessly inconsistent with some other Bench decision of two judges; and precious judicial time is wasted in the High Courts and in the Supreme Court trying to reconcile them….I am all for a three-Judge Bench hearing all matters in the highest Court.…. If benches of two judges must hear SLPs, the order pronounced must never be reckoned as laying down any law — but this only the Supreme Court can say.”

 

It is submitted that the mischief caused by the inconsistent judgments of the Superior Courts is minor compared to the wholesome purpose served by the precedents laid down by the single and two Judge Benches of the Superior Courts, as a whole, in guiding the subordinate Judiciary by settling the law and thereby advancing the cause of Justice. 

 

“House shall not be set on fire to kill the rat in it.”