What is the Pecuniary Value of Housewife’s Service?

(By AVM Salahuddeen (Kecheri), Advocate, High Court of Kerala)

Yajurveda says -- ‘Jayedastam’ (Java = wife, Astam = home). Thousands of years ago, it had been declared in this single word that the wife is the home indeed. Housewife is a woman whose work is managing her family’s home by caring children, cooking, cleaning and washing etc., but she is not employed outside. Such woman is generally called stay-at-home mother. Webster’s dictionary defines a housewife as a married woman who is in charge of her household.

In India, it has been recognized by all sects of people that the gratuitous service rendered by wife with true love and affection to children and her husband and managing the household affairs cannot be equated with the service rendered by others. She is in the constant attendance of the family through the day and night unless she is employed. Perhaps, being a housewife mother deserves one of the best salaries in the world.

When a housewife dies in a motor accident, what will be the compensation to be awarded to her legal representatives for dependency? In such case, first of all the annual income of the deceased housewife is to be calculated for the purpose awarding compensation. It is pertinent to note that the estimation, by courts, of the value of service rendered to the house by housewives, appears to be grossly low while deciding the compensation cases. Normally the education or qualification of a mere housewife will not be taken into consideration for assessing her income for the purpose of awarding Compensation. Apart from that the escalation in the cost of living and inflation of money are also being ignored while calculating housewife’s income by the courts.

Recently the Honourable Supreme Court, in Rajendra Singh v. National Insurance Company Limited  (2020 (4) KLT 6 (SC) fixed only ` 5000/- as the monthly income of a deceased
housewife following the decision reported in Arun Kumar Agrawal v. National Insurance Co. Ltd.,2010 (4) KLT 230 (SC) in which case the monthly income was taken `50,000/-. It  is to be noted that the accident Rajendra Singh’scase took place in 2012 and that of Arun Kumar Agrawal’scase it Is long prior to 2012. Therefore the escalation in the cost of living and inflation of money are not at all taken into consideration while calculating housewife’s income by the Apex Court in Rajendra Singh’s.As a matter of fact, the fixation of the income of housewife in Arun Kumar Agrawal’scase itself is not proper, even though the Apex Court explicitly described the service of housewife going through various judicial decisions. While agreeing with judgment delivered by the Hon’ble Mr Justice G.S.Singhvi in Arun Kumar Agrawal’scase, the other judge, Hon’ble Mr. Justice Asok Kumar Ganguly has added His Lordship’s perception separately in that judgment. His Lordship has stated in para.26 of the judgment that “Household work performed by women throughout India is more than US$ 612.8 billion per year (Evangelical Social Action Forum and Health Bridge, page 17). We often forget that the time spent by women in doing household work as homemakers is the time which they can devote to paid work or to their education. This lack of sensitiveness and recognition of their work mainly contributes to women’s high rate of poverty and their consequential oppression in society, as well as various physical and psychological problems. The court and Tribunal should do well to factor these considerations in assessing compensation for housewives who are victims of road accident and quantifying the amount in the name of fixing just compensation”.

His Lordship Mr.Justice Asok Kumar Ganguly concluded his observation by reminding the legislature that time has come for rethinking for properly assessing the value of homemakers and householders work and suitably amending the provisions of Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and homemaker.

Even though the Motor Vehicles Act, 1988 was amended as per new Act No.32/2019 in the last year extensively, no provision was added or amended for fixation of income of spouse in spite of the directions contained the judgment reported in 2010 (4) KLT 230 (SC).
But instead of incorporating a provision for proper fixation of income of spouse in the new Act, the legislature deleted the earlier provision for fixation of income of spouse contained in the Second Schedule to Section 163A of old Act. It is true that our courts have glorified the service of housewives in their judgments, but such glorification is not reflected in the fixation of income of housewives for the purpose of compensation. Now the housewives are being equated with ‘coolies’ or ‘maid servants’ by the courts for the purpose of calculating income to award compensation for dependency. Such approach is improper and only a degradation to housewives. A housewife has to juggle multiple roles around the clock, and this she has to do 365 days in a year. The contribution made by the wife to the house is invaluable and cannot be computed in terms of money. However their notional income is to be calculated for the purpose of compensation. Every housewife’s monthly salary is considered by our courts even less than a maid who is working for few hours. In fact the pecuniary value of a housewife’s service is to be assessed considering the following aspects.

i)   Status of family

ii)  Educational qualification of housewife

iii)Income of the family

iv)Age of the house wife

v)  Other skill works of housewife, if any

vi)Cost of living and inflation of money

As of now there is no provision in the amended Motor Vehicles Act to fix the income of a spouse for the purpose of the assessment of compensation in road accident cases. All the judicial pronouncement existing and relating to this subject are decided on basis of the deleted provisions in the Act (Second Schedule under Section 163A), and those decisions are not at all adequate to fix the pecuniary value of housewife’s service. Therefore the Courts have to more vigilant in assessing the compensation in the case of deceased housewife.

A Case for the Repeal of Rule 6 from The Contempt of Courts
(High Court of Kerala) Rules

(By P.K.Suresh Kumar, Senior Advocate)

A High Court, as envisaged by the Constitution of India is a mighty institution. The founding fathers wanted that court to have all the glory and prestige so as to match its huge role to be played under the constitutional scheme. That is why the Constitution, even before describing who would constitute the court hastened to say through Article 215 that the High Court would be a Court of Record and shall have all the powers of such a court including the power to punish for contempt of itself. 

A Court of Record is not defined by the Constitution.  But, as the Supreme Court said the expression is well recognized in the juridical world as a court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony and which has power to fine and imprison for contempt of its authority (1991 (2) KLT OnLine 1007 (SC) = AIR 1991 SC2176).Being a Court of Record with power to punish contempt of its authority is the hallmark of a superior court in Anglo Saxon legal system and it was well recognized during the colonial period that the Indian High Courts were such superior courts. It is that superiority that was recognized and retained by the Constitution by way of Art.215.

Article 215, therefore, recognizes and declares the inherent power of a High Court
to punish for the contempt of its authority. The Contempt of Courts Act is only a legisla-tion which regulates the manner in which such power is exercised. As held by the Supreme Court in Supreme Court Bar Association’scase (1998 (1) KLT SN 84 (C.No.85) SC =
AIR 1998 SC 1895)the power to punish for contempt being inherent in a court of record no act of Parliament can take away that power. The Supreme Court further observed that the legislative power cannot be exercised so as to stultify the status and dignity of the Supreme Court or the High Courts though a legislation may serve as a guide for the determination of the nature of punishment or the conduct of the proceedings in that regard.

So, the Contempt of Courts Act is a piece of legislation which acts as a guide to the Supreme Court and the High Courts in the exercise of their authority to punish for contempt. The source of power here is not the statute but is something which is inherent in courts of record as recognized by the Constitution. So, the Act or the Rules thereunder cannot operate in a manner which takes away or undermines the power of the Courts.

The Kerala Rules under the Contempt of Courts Act, however, makes an invasion into the forbidden area by taking away the authority of a single Judge in punishing for the contempt. Art.215 does not make any distinction between a bench consisting of one Judge or two Judges or more. Art.216 says the High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. So, anyone of them exercising the powers of the High Court is covered by Art.215 too and the power to punish for contempt of its authority is inherent in all Judges who constitute a High Court. However, the Act while regulating the exercise of powers to punish for contempt made a provision through S.18 that criminal contempt shall be dealt with only by a bench consisting of at least two Judges. The Parliament might have thought that criminal contempt being much more serious in nature compared to disobedience to orders and judgments should be considered by a Division Bench. But, in the matter of civil contempt such a condition has not been imposed by the Act. So, it is obvious that the intention of the Parliament is that civil contempt shall be dealt with by any bench irrespective of its strength. Probably, the intention is to facilitate the hearing of matters relating to civil contempt by the author of the judgment itself. The hearing by the author of the judgment, as far as possible, is highly necessary because she/he is the best person to know its spirit and purpose.

But, those who have framed The Kerala Rules under the Contempt of Courts Act seem to think that Single Judges are incapable of dealing with even ‘civil contempt’. Rule 6
of the said Rules reads: “Every proceeding for contempt shall be dealt with by a Bench of not less than two Judges”. A proviso to the said Rule, of course, permits a single Judge to hold a preliminary enquiry in the matter if the judgment or order alleged to be violated is his or hers. But, the single Judge has to post the case before a Division Bench if she/he finds that someone is prima facieguilty of contempt. The moment someone is found to be prima facieguilty of contempt, the single Judge becomes powerless and helpless. This is a very anomalous situation and is not warranted either by the Constitution or the Contempt of Courts Act. I am sure that the great minds which worked behind the promulgation of Art.215 would not have ever dreamt of such a situation.

Rule 6 of the Contempt of Courts (High Court of Kerala) Rules which creates such an absurd situation has to be removed from the Rules. It is inconsistent with Art.215 of the Constitution of India and also inconsistent with the Contempt of Courts Act. S.23 of the Contempt of Courts Act confers power on the Supreme Court and the High Courts to make rules not inconsistent with the provisions of the Act and providing for any matter relating to its procedure. The power is very limited in nature; it can only lay down the procedure and it cannot go inconsistent with the Act. While laying down the procedure it cannot take away a power which a single Judge enjoys by virtue of the Constitutional provision and also as per the Act. As mentioned earlier, the Act insists for a hearing by a Division Bench only in the matter of criminal contempt. So, as per the Act, civil contempt can be dealt with by any bench irrespective of its strength. That position cannot be altered by the Rules which are intended only to provide a procedural form. The villainous Rule 6 is therefore liable to be removed from the statute book without any delay.

To make matters worse, a Division Bench went to the extent of saying that a single Judge did not have power even to summon an alleged contemner.   The decision reported in 2014 (1) KLT 147 (Jyothilal v. Mathai)relied heavily on Rule 6 and held that a contempt proceedings begin only when the Division Bench is in seisin of the matter. Rules relating to service of notice and personal appearance etc. were all held to be irrelevant while a single Judge dealing with a contempt case for holding preliminary enquiry. The decision which makes a single member bench all the more powerless is rendered without understanding the larger concepts behind the constitution of a court of record with plenary powers and is definitely retrograde.   The decision is liable to be pushed into oblivion and that is possible only by the removal of Rule 6.

By removing Rule 6 and allowing single Judges to handle contempt cases in their entirety would surely enhance the effectiveness in dealing with disobedience to judgments and orders. But, a doubt may  arise here as to whether the Chief Justice cannot allot all contempt matters to a Division Bench without the aid of Rule 6. There, my only  answer is that the  Master of  the Roster will act only in consonance with the spirit of Art.215 and will always uphold the dignity of the court.

A Critique on High Court Order to Dispense with the Personal Production of Accused before the Jurisdictional Magistrate

(By P.K. Rony, Advocate, Kollam)

Sri.D.K.Basu, a legal activist of West Bengal wrote a letter to the then Chief Justice of India, to raise concern over the custodial death and violence committed by police across the country. He raised his voice against the repeated violence which was being reported in the police custody and lockups. The Hon’ble Chief Justice of India treated the letter as a Writ Petition. The Hon’ble Supreme Court had admitted the issue of arbitrary arrest and crime in lockups and custody.  Strictly adhering to Article 21 and 22(1) of Constitution of India, finally the court held a land mark Judgement, where guidelines regarding arrest of persons were prescribed to prevent any infringement with the rights of an individual during the arrest and detention. Though various constitutional Courts of our Country had made stringent directions following D.K.Basu’s case (1997 (1) KLT SN 54 (C.No.71) (SC), but
stillthere are crimes in lockups and Police brutality all across our country. Still the custodial violence, brutality, torture and terrorism at the hands of police are reported from many parts of the country. The latest visuals of the third degree brutal police terrorism from Thoothukudy of Tamilnadu State,is disturbing our sleeps. That unforeseen incident again and again demands the crucial role of remanding Magistrates to safeguard the constitutional rights, such as right to life and personal liberty, guaranteed under Article 21 and 22 of our Constitution.

The recent news from Tamilnadu and rest of the country is alarming. The situation that the custodial violence including torture and death in lockups strikes at the rule of law. The judiciary has to open up all its organs to curtail such worst crimes in a civilized society governed by the Rule of Law. But the present scenario invokes our consciousness that even on repeated measures taken by Apex Court to ensure the rights of persons in custody, but the remanding magistrates are sometimes causing heavy damages by ignoring such directions and acting casually as remand machines. The law and judiciary in a democratic country cannot be prejudicial in its approach and can’t deny basic rights, liberty and freedom of its citizens.

The Code of Criminal Procedure Section 167(2), clearly states that, if an investigation is not completed within 24 hours of arrest of  an accused ,he shall forward to the nearest magistrate with all entries of case records. The magistrate may authorise detention of an accused in such custody.  But S.167(2)(b) clearly bars such detention unless the accused is produced in person before the Magistrate. The object of this provision is twofold, firstly that the law doesn’t favour detention in police custody except in special situation and that too for reason to be stated by the magistrate in writing. Secondly, to enable such accused to make representation in person before the magistrate at the very outset of investigation. The only relaxation to this rule is for the further extension of detention, while the accused is in judicial custody, can be through electronic video linkage. Such a relaxation was incorporated through the Criminal Law Amendment Act 5 of 2009.  But the word used in the amended provision is “further detention in judicial custody,” speaks volumes of legislative intention. Once the accused is remanded, he is supposed to be under deemed custody of court and for further extension can be through video linkage. So, at any rate, such incorporation will strike down the mandatory, statutory requirements of physical production of accused at the first time, before the jurisdictional Magistrate for remand.

The Magistrate shall not act as a remand machine, but to exercise his power judicially to enable the accused to make representation to controvert the grounds of arrest as well as his difficulties in custody. Hon’ble Apex Court in Manubhai Ratilal Patel v State of Gujarat
(2012 (4) KLT SN 45 (C.No.38) SC = AIR 2013 SC 313) observed the importance of judicial
functions while remanding an accused and observed that the fundamental judicial function is not to remand an accused to jail and the Magistrate shall not mechanically remand the accused. The non production of accused will be detrimental and prejudicial to the interest of the accused as is denying an earnest opportunity to air his difficulties suffered in custody. 

Recently the Registry of Hon’ble High Court of Kerala issued an administrative order, No.D.I/3/28738/2020 dated 25.05.2020 with regard to the virtual production of accused persons before the jurisdictional magistrate to avoid spread of Covid 19 Pandemic. The High Court Registry had insisted to abstain from producing accused persons under arrest with or without warrant before Magistrate. I wonder how the Registry of our high Court can get over the statutory mandatory provision for physical production of accused as contemplated in Section 167(2)(b) Crl.P.C. The legislature had not interfered with such mandatory provisions even through the watering amendments of 2009.Only the“further extension of persons”, under judicial custody can be extended through video linkage. Here, with the above administrative order, the High Court Registry is  going beyond the safeguarding provisions mandated in Art. 21, 22 of Constiutution and many other mandatory orders showered by the Apex Court to protect the quality and dignity of life and liberty of persons under arrest.

The present custodial torture stories from Tamilnadu, haunts my consciousness as a lawyer. I wonder, what actually had done the magistrate concerned while remanding the arrestee. It is also heard that he casually remanded the duo by sitting in upstairs of his quarters while the arrested were kept in police van. Is he acted as a puppet in the hands of  Police.  Obviously, the magistrate had thrown away the basic principles of law and mechanically remanded the accused without following the directions of Apex Court. If so, it amounts in failure of discharging his duty and is so detrimental to the rule of law. The entire judicial system of the country, who are supposed to be the watch dog of constitutional rights, are under threat of dereliction of their fundamental duty and is absolute failure of judicial system. The accused can unfold all his hardships including intimidation, distress, torture ,physical or mental injuries or any material aspect regarding his arrest and custody to the judicial officer and the officer can very well examine him either in person or through the help of medical experts and can act judiciously regarding his grievances. The jurisdictional magistrate can treat such complaints made in writing or orally by the arrestee, as complaint and proceed accordingly. It is a self contained defence mechanism to protect the dignity and decency of an arrestee. Obviously, such failures from judiciary will tend to water the rule of law and rights guaranteed under constitution. It also points to the casual attitudes of judicial officers in performing their divine duty. The Higher Court should be very vigilant and vibrant to avoid such black marks in judiciary so as to protect the faith of common people in the esteemed system. The Higher courts in India should be more vigilant and seriously watch in close regarding the quality and dedication of lower judiciary as they are directly and closely linked with fundamental needs of public at large.

In the present scenario, I hope that the Hon’ble High Court will struck down the illegal order to protect the safe guarding mechanism as contemplated in our Constitution.

Per incuriam is the Precedent on per incuriam

(By Vinod Bhat S., Advocate, High Court of Kerala)

Judgment of the Full Bench of the Hon’ble Kerala High  Court in Raman Gopi v. Kunju Raman Uthamanreported in 2011(4) KLT 458 (F.B.) is not uthamam.  Recently, a  learned Single Judge was taken prey, yet again, in  K. Deepa v State of Kerala,  W.P.(C) 20301/2019 dated 14.07.2020.  The learned Single Judge, in paragraph 11 of the said judgment held :

 “But I find that when there are different judgments of co-equal benches, this court has to follow the later one in point of time, as held in the judgment of the Full Bench of this court in Raman Gopi & Anr. v. Kunju Raman Uthaman.”

The Full Bench (in Raman Gopi(supra) while summarizing the legal position (in paragraphs 60 and 61 in KLT), after relying on earlier Full Bench judgment in Joseph v Special Tahsildar  reported in 2001(1) KLT 958 (F.B.) held-

“(i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;”

In Raman Gopi,supra, the Full Bench relied on Central Board of Dawoodi Bohra Community’scase reported in 2005 (1) KLT 486 (SC) = (2005) 2 SCC 673.  Interestingly in that
case it was in fact held –

“Subordinate courts with respect must choose to follow the earlier binding precedents notwithstanding the later per incuriamdecision of the smaller or co-ordinate bench.”

InSandeep Kumar Bafna v. State of Maharashtra reported in  2014 (2) KLT 809 (SC), in paragraph 15 thereof, it was held –

“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 earlier view as the succeeding ones would fall in the category of per incuriam”.

Now time is ripe for the Uthaman to set right the legal position.

A Perspective on the Inherent Power of the Court

(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)

Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.                                                                    -- Francis Bacon¹

The object of this Article is to present a blue-print of jural calculus based on the summation of the settled principles for the exercise of inherent power by the Courts in the adjudication process. The word ‘inherent’ is very wide in itself and means existing and inseparable from a permanent attribute or quality, an essential element, something intrinsic or essential vested in or attached to a person or office as a right or privilege². Inherent power may signify an authority asserted independent of the Constitution and does not owe its origin to statute. The inherent power is, however, recognized by statutes and may be described as “implied”, “essential”, “incidental”, or “necessary”. It is most often described as “inherent”³. This power is essential to the existence, dignity and operation of a Court. Judicial power vests in Courts and it carries with it those necessary, incidental powers which must belong to them if they are to function as Courts. The power is implied because it is indispensable if the Court is to perform the duties and functions fully and freely and to preserve its dignity, the decorum and order⁴.

The concept of inherent powers as described in ‘The Inherent Jurisdiction to Regulate Civil Proceedings’ by M.S. Dockray is the foundation for a whole armoury of judicial powers, many of which are significant and some of which are quite extraordinary and are matter of constitutional weight⁵.I.H.Jacob in his book titled ‘The Inherent Jurisdiction of the Court, Current Legal Problems’⁶ has rundown the idea on the subject, “In many spheres of the administration of justice, High Court of Justice in England exercises a jurisdiction which has the distinctive description of being called ‘inherent’.”The practical necessity for conceding inherent power to the Court is explained by the Polish Jurist Jerzy Wroblewski -

“There is no need of a Judge where the rule lead everyone, provided no errors are committed, to the same solution, and where correct rule of reasoning from indisputable premises exist. We need Judges when those rules are equivocal when reasoning does not end in a conclusion, but justify a decision”⁷.

Statutory law responded with legislation on inherent power of the Court specifying its substantive scope of and setting the limits to the Court’s power exercisable in defined and catalogued circumstances is still a desideratum.In this predicament, the Courts have to follow the parameters and the positive indicators laid down in the legal literature particularly, in the binding precedents for invoking inherent power while considering special circumstances of the individual cases. The philosophy of ‘saucing law with justice’ must be the driving force immanent in the exercise of inherent power of the Court.

The Supreme Court is established and constituted under Article 124 and the High Courts are established and constituted under Article 214 of the Constitution of India.
Article 129 of the Constitution proclaims that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 of the Constitution declares that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

The question whether in the absence of any express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts, has been considered by English and Indian courts. In the leading case of Rex v. Parke⁸Wills, J. observed:

“This Court exercises a vigilant watch over the proceedings of inferior courts, and successfully prevents them from usurping powers which they do not possess, or otherwise acting contrary to law. It would seem almost a natural corollary that it should possess correlative powers of guarding them against unlawful attacks and interferences with their independence on the part of others.”

In Attorney General v. British Broadcasting Corporation⁹, the House of Lords proceeded on the assumption that a court of record possesses protective jurisdiction to indict a person for interference with the administration of justice in the inferior courts. . . .”

A Seven-Judge Bench of the Supreme Court in re, under Article 143, Constitution of India¹⁰ declared that:

“ ..... Besides, in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction.

The Supreme Court approvingly quoted the passage from the decision of the Privy Council in Jairam Das v. Emperor¹¹ hereinafter appearing:

“Prima facie”, says Halsbury, ‘no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the congnizance of the particular court”¹².

In Delhi Judicial Service Association v. State of Gujarat¹³, the Supreme Court decided that:

“The English and the Indian authorities are based on the basic foundation of inherent power of a Court of Record, having jurisdiction to correct the judicial orders of subordinate courts. The King’s Bench in England and High Courts in India being superior Courts of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of contempt to protect the subordinate courts.”

“The High Court being a Court of Record has inherent power in respect of contempt of itself as well as of its subordinate courts even in the absence of any express provision in any Act. A fortiori the Supreme Court being the Apex Court of the country and superior court of record should possess the same inherent jurisdiction and power for taking action for contempt of itself as well as for the contempt of subordinate and inferior courts.”

A Constitution Bench of the Supreme Court in Supreme Court Bar Association v. Union of India¹⁴, has affirmed that:

“A court of record is a court, the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any court. The power that courts of record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice.”

“The plenary powers of this Court under Article 142 of the Constitution are inherent in the Courts and are complimentary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. ..... There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent ‘clogging or obstruction of the stream of justice’.”

In M.M.Thomas v. State of Kerala¹⁵ the Supreme Court reinforced that:

“The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which itself is competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all the records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court’s power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra¹⁶a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a Court of plenary jurisdiction being a court of record”.

This issue surfaced again on the case in Asian Resurfacing of Road Agency Private Limited & Anr. v. Central Bureau of Investigation¹⁷ the Supreme Court considering the earlier decisions recapitulated the legal position:

“It is thus clear that the inherent power of a court set up by the Constitution is a power that inheres in such court because it is a superior court of record, and not because it is conferred by the Code of Criminal Procedure. This is a power vested by the Constitution itself, inter alia,under Article 215 as aforestated. Also, as such High Courts have the power, nay, the duty to protect the fundamental rights of citizens under Article 226 of the Constitution, the inherent power to do justice in cases involving the liberty of the citizen would also sound in Article 21 of the Constitution.”

In the decision in Municipal Corporation of Greater Mumbai & Anr. v. Pratibha Industries Ltd. & Ors.¹⁸ the Supreme Court ruled that the constitutional courts being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record.

The ratio of the above decisions refined and resolved by the Supreme Court is that the Supreme Court and the High Court being the Courts of record possess inherent power to correct the judicial orders of subordinate courts and possess protective jurisdiction for taking action for contempt of itself as well as for the contempt of subordinate and inferior Courts. The Courts of record also possess pleanary power to correct its own orders unless, otherwise prohibited by statute.

The inherent power of the Supreme Court under Article 142 of the Constitution to do ‘complete justice’ is a residuary power, supplementary and complementary to the powers specifically conferred by the Constitution and the statutes. It is a constituent power having transcedental level of application. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso factoact as prohibitions or limitations on the constitutional powers under Article 142 of the Constitution. Nevertheless, in exercise of the power under
Article 142 of the Constitution the Supreme Court is not expected to pass order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy.¹⁹ A Constitution Bench of the Supreme Court in Supreme Court Bar Association’s case¹⁴ has already held that while exercising power under Article 142 of the Constitution, the Court cannot ignore the substantive rights of a litigant while dealing with a cause pending before it. The power cannot be used to ‘supplant’ substantive law applicable to a case. The Supreme Court further declared that Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provision dealing with a subject and thereby achieve something indirectly which cannot be achieved directly. The power under Article 142 also cannot be used to grant relief on a question not falling within the jurisdiction of the Supreme Court.²⁰ The High Courts and Tribunals have no similar power.

The inherent power of the High Court in criminal matters which the Court already possessed is preserved and received statutory recognition in Section 482 of the Code of Criminal Procedure, 1973. What is saved under Section 482 is the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code meaning thereby, the High Court’s power to enforce any order under the Code is unaffected by the other provisions of the Code. Section 482 also saves the inherent power of the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In exercise of the inherent powers vested with the High Court, it is legally obligated to prevent abuse of the process of the Court and to quash a criminal proceeding initiated illegally, vexatiously or being instituted without jurisdiction for the purpose of securing the ends of justice. The Code of Criminal Procedure being an Act made to consolidate and amend the Law relating to Criminal Procedure, the saving of inherent powers of the High Court under Section 482 is limited to matters relating to procedure in criminal proceedings.

In Janata Dal v. H.S. Chowdhary²¹, the Supreme Court set the scenario of inherent power of the Court:

“Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent power of the High Court. The rule of inherent powers has its source in the maxim ‘Quadolex aliquid alicui concedit, concedere videtur id sine quo ispa, ess uon potest’which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.

The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiaeto do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that their decision in exercise of this power is based on sound principles.”

In Asmathunnisa v. State of Andhra Pradesh & Anr.²², the Supreme Court reiterated that the power under Section 482 of the Code of Criminal Procedure is wide but has to be exercised with great care and caution. The interference must be on sound principles and the inherent power should not be exercised to stifle the legitimate prosecution. The Supreme Court quoted with approval the observation of Lord Reid inConnelly v. Director of Public Prosecutions²³ that:

“There must always be a residual discretion to prevent anything which savours of abuse of process”, with which view all the members of the House of Lords agreed but differed as to whether this entitled a Court to stay a lawful prosecution.

InDineshbhai Chandubhai Patel v. State of Gujarat²⁴, the Supreme Court did not concur with the approach of the High Court in going into the minutest details in relation to every aspect of the case to quash the FIR and held that the High Court had exceeded its powers while exercising its inherent jurisdiction under Section 482 of the Code. The Supreme Court cautioned that:

“The inherent powers of the High Court, which are obviously not defined being inherent in its very nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code. The parameters laid down by this Court while exercising inherent powers must always be kept in mind else, it would lead to committing the jurisdictional error in deciding the case.”

 Relying on the decision in Naresh Shridhar Mirajkar¹⁶ a two-Judge Bench of the Supreme Court in M.V.Elisabeth v. Harwan Investment and Trading (P) Ltd²⁵ the Supreme Court elucidated that:

“The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction.”

In a recent decision in Sanjeev Kapoor v. Chandana Kapoor²⁶ the Supreme Court made the legal position explicit ruling that:

“The legislative Scheme as delineated by Section 369 of the Code of Criminal Procedure, 1898, as well as Legislative Scheme as delineated by Section 362 of Code of Criminal Procedure, 1973 is one and the same. The embargo put on the criminal court to alter or review its judgment is with a purpose and object. The judgments of this Court as noted above, summarised the law to the effect that the criminal justice delivery system does not cloth criminal court with the power to alter or review the judgment or final order disposing the case except to correct the clerical or arithmetical error. After the judgment delivered by a criminal Court or passing final order disposing the case the Court becomes functus officioand any mistake or glaring omission is left to be corrected only by appropriate forum in accordance with law.”

Inevitably, the inherent power exercisable by the High Court as a Court of record is subject to the express or implied bar in a statute and subject to the appellate power of the Supreme Court. The inherent power of the Court not contemplated by the saving provision in Section 362 of the Code of Criminal Procedure is expressly excluded. It operates as a restraining order forbidding the court from altering or reviewing the judgment after signing or final Order except to the limited extent of correcting a clerical or arithmetical error.

The inherent power of the Court in civil jurisdiction received the statutory confirmation and perhaps, extension by Section 151 of the Code of Civil Procedure. The above section directing that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, sets the Court free from the rigour of other provisions in the Code for the said avowed goal.

In K.K.Velusamy v. Palanisamy²⁷, the Supreme Court has summarised the scope of Section 151 of the Code explained in several decisions of the Apex Court that Section 151
is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’, that is, to do all things necessary to buttress the justice system. The Supreme Court emphasised the need to be doubly cautious by the Courts in exercising the inherent power in the absence of legislative guidance to deal with the procedural situation leaving the exercise thereof on the discretion and wisdom of the individual Judges and that the inherent power cannot be treated as a carte blancheto grant any relief. It has been signalled that the inherent power should be exercised only to meet the ends of justice and to prevent abuse of process of court.

In Mohit Alias Sonu & Anr. v. State of Uttar Pradesh & Anr.²⁸, the Supreme Court handed down the ruling:

“The intention of the legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-a-visthe law laid down by this Court it can safely be concluded that when there is a sepecific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to.”

In the recent decision in SCG Contracts (India) Private Limited v. K.S. Chamankar Infrastructure Private Limited & Ors.²⁹, the Supreme Court following the decision in Manohar Lal Chopra’scase asserted that:

“Clearly, the clear, definite and mandatory provisions of Order 5 read with Order 8,Rules 1and 10 cannot be circumvented by recourse to the inherent power under Section 151 to do the opposite of what is stated therein.”

The inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court is saved under Section 151 of the Code of Civil Procedure. The power saved under Section 151 relates to matters of procedure. The Writ Proceedings are not ‘proceedings’ within the meaning of Section 151 of the Code and are not governed by the Code by force of the specific statutory clarification contained in the Explanation under Section 141 of the Code that the expression “proceedings” does not include any proceeding under Article 226 of the Constitution.

The power cognizant of under Section 151 of the Code of Civil Procedure relates to matters of procedure and cannot encroach upon the substantive rights of the parties. It does not confer any power on the civil courts. It only clarifies that the power to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of court is not fettered by the other provisions of the Code. A Court cannot exercise inherent power to do that which is prohibited by the Code or in direct contravention of the provisions of the Code. The above provision does not grant power to deal with matters which are excluded from its cognizance. If there are express provisions exhaustively covering a particular topic, no inherent power shall be exercised in respect of the said topic. Inherent power cannot be resorted to as a blanket power but only for the felt necessities of securing the ends of justice and to prevent abuse of process of Court as a pervasive principle.

The jurisdiction of the High Court under Article 226 of the Constitution of India for issuing writ of certiorari is limited to seeing that the judicial or quasi-judicial tribunal or administrative body exercising quasi-judicial powers do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the confines of the statute creating them or entrusting those functions to them.

 In Nagendra Nath Bora & Anr. v. Commissioner of Hills Division and Appeals, Assam & Ors.³⁰, a Constitution Bench of the Supreme Court declared that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and not every error either of law or of fact, which can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision. It has been further held that certiorari is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.

In State of Andhra Pradesh v. Chitra Venkata Rao³¹, the Supreme Court ruled that:

“The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdic-tion. The Court exercises it not as an Appellate Court. The findings of facts reached by an inferior court or Tribunal as a result of the appreciation of evidence are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of record can be corrected by a writ, but not an error of fact, however grave it may appear to be.”

Inevitably, the High Court issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. In certiorari, the High Court is to determine, on examination of record, whether the inferior tribunal exceeded its jurisdiction or proceeded not in accordance with the essential requirements of law which it was meant to administer. It merely demolishes the order which it considers to be without jurisdiction or palpably erroneous and does not re-hear the case on the evidence or substitute its own findings. The remedy of certiorari is to keep the inferior courts in check by quashing decisions taken without, or in excess of jurisdiction; and quashing also for intra vireserror of law apparent on the face of the record, and quashing decisions tainted by fraud or perjury. Necessarily, resort to inherent power has little or no scope for the grant of certiorari.

A Concluding Caveat  

The role of the High Court in judicial review proceeding is to ensure that statutory powers are not usurped, exceeded or abused and that duties owed to the public are duly performed. Logically, the use of inherent power is beyond the purview of the judicial review proceedings. Be it writ of certiorari or supervisory jurisdiction of judicial review, invoking inherent power is an officious encroachment, at once procedurally ultra vires. To bring the inherent power into play has raison d’etreonly if it is exercised to prevent abuse of the process of the court or to secure the ends of justice. Judicial power is a public trust and the inherent power should be put into use by the courts to do justice between the parties and not to act as a superpower unlimited. Call into use inherent power by way of adhoc procedural activism by Judges³² resulting from the lack of coherent limits on judicial power in the discharge of supervisory jurisdiction of judicial review obviously, is an unwarranted arrogation of authority by the judiciary.

Foot Notes

1.     “Of Innovations”, The Works of Francis Bacon, v. XII, 1857-74 (M. Scott ed.1908).

2.     Concise Oxford English Dictionary (2002).

3.     See Dowling. The Inherent Power of the Judiciary, 21 A.B.A.J. 635 (1935).

4.     Board v. Thomson 7 Ind. 265 (Semble) (Physical conditions).                 

5.     M.S. Dockray - “The Inherent Jurisdiction to Regulate Civil Proceedings”(1997) 113 L.Q.R.120.

6.     I.H.Jacob - ‘The Inherent Jurisdiction of the Court, Current Legal Problems’ (1970). Vol.23, P. 23.

7.     Jerzy Wroblewski, The Judicial Application of Law ed. by Zenon Bankowski and Neil        Mc Carmack(Kluwer Acadmic Publication-1992) at p.315. The book is the English version Jerzy’s, major polish work-Sadowe Stoswaria Prawa.

8.    Rex v. Parke (1903) 2 K.B. 432, 442: (1900-3) All ER Rep.721).

9. Attorney General v. British Broadcasting Corporation ((1980) 3 All ER 161).

10. -- In Re, under Art.143, Constitution of India (AIR 1965 SC 745 at page 789, para 138).

11.-- Jairam Das v. Emperor (72 Ind App.120: AIR 1945 PC 94).

12.-- Halsbury’s Laws of England, Vol.9, P.349.

13.-- Delhi Judicial Service Association v. State of Gujarat (1991 (2) KLT OnLine 1007 (SC) =(1991) 4 SCC 406), paras 26 and 31.

14.-- Supreme Court Bar Association v. Union of India (1998 (1) KLT SN 84 (C.No. 85) SC =(1998) 4 SCC 409), paras.12, 21 and 47.

15.-- M.M.Thomas v. State of Kerala (2000 (1) KLT 799 (SC) = (2000) 1 SCC 666) para.14).

16.-- Naresh Shridhar Mirajkar v. State of Maharashtra (1966 KLT OnLine 1204 (SC) =(AIR 1967 SC 1).

17 Asian Resurfacing of Road Agency Private Limited & Anr. v. Central Bureau of Investigation,

(2018 (2) KLT 158 (SC) = (2018) 16 SCC 299),para 54 at p.333.

18.-- Municipal Corporation of Greater Mumbai & Anr. v. Pratibha Industries Ltd. & Ors.

(2019 (1) KLT OnLine 3231 (SC) = (2019) 3 SCC 203), para.10).

19.-- Manish Goel v. Rohini Goel (2010 (2) KLT Suppl.66 (SC) = (2010) 4 SCC 393) para.19.

20. State of Karnataka v. State of Andhra Pradesh (2000 (1) KLT OnLine 937 (SC) = (2000) 9 SCC 572).

21.-- Janata Dal v. H.S. Chowdhary (1992 (2) KLT OnLine 1017 (SC) = (1992) 4 SCC 305),paras 131 and 132).

22.-- Asmathunnisa v. State of Andhra Pradesh & Anr. (2011 (2) KLT SN 22 (C.No.30) SC =    (2011) 11 SCC 259).

23.-- Lord Reid in Connelly v. Director of Public Prosecutions (1964 AC 1254: (164) 2 WLR 1145: (1964) 2 All ER 401 (HL).

24.-- Dineshbhai Chandubhai Patel v. State of Gujarat (2018 (1) KLT OnLine 3003 (SC) = (2018) 3 SCC 104) at para 33.

25.-- M.V.Elisabeth v. Harwan Investment and Trading (P) Ltd.(1992 (2) KLT OnLine 1002 (SC) =         (1993) Supp (2) SCC 433).

26.-- Sanjeev Kapoor v. Chandana Kapoor (2020 (2) KLT 267 (SC)) para.18.

27.-- K.K.Velusamy v. Palanisamy (2011 (2) KLT SN 19 (C.No.27) SC = (2011) 11 SCC 275, para 12.

28.-- Mohit Alias Sonu & Anr. v. State of Uttar Pradesh & Anr.(2013 (3) KLT SN 30 (C.No.32) SC =        (2013) 7 SCC 789),para.32.

29.-- SCG Contracts (India) Private Limited v. K.S.Chamankar Infrastructure Private Limited & Ors.(2019 (1) KLT OnLine 3040 (SC) = (2019) 12 SCC 210), para.16.

30.-- Nagendra Nath Bora & Anr. v. Commissioner of Hills Division and Appeals, Assam & Ors.

(1958 KLT OnLine 1301 (SC) = AIR 1958 SC 398), paras 24 and 26.

31.-- State of Andhra Pradesh v. Chitra Venkata Rao (AIR 1975 SC 2151), para 23.

32. See Elliot, Supra note 29 at 309 (emphasis in original).