Honey I Got the Votes, But, Where is the Recognition?

(By Rajit, Advocate, High Court of Kerala)

Honey I got the votes, but, where is the recognition? This question was posed by me, over a tough friday weekend, over a glass of scotch whisky, savouring the old gems of Kishore Kumar. My wife gave me a smirk, which clearly showed her disapproval of my weekend escapade. She retorted back, no more of your gibberish English, trying to camouflage your inebriation. This sent my thoughts back to the cause for this chain of thoughts.

I was one among the many advocates, with a difference. The difference being, I had made a name for myself in my field of specialization. My field of specialization being the complicated and confusing tax laws. I was contended in life, having no quarter of complaints from anyone. Due to my hardwork and dedicated effort, I started getting recognized by the Bar and the Bench. Young brethren started slowly requesting me to appear for them. Initially gratuitous, then on small fee, and later on the terms set by me. Life was going on smooth.

Then came a suggestion by one of my clients to the effect that they wanted a similar order to the one obtained by me in another case involving the interpretation of perquisite to an employee. The client told me that there was a change in the management and the managing director wanted to engage a senior designated advocate, for five times the fees paid to me. This set the cat among the pigeons. My peace of mind was disturbed. I decided to explore the possibilities.

I made enquiries and found that there was a sea of silent contenders for this post of designated senior advocates. The reasons all being similar to mine and to show that they were different from their brethren. I was told to either make an application countersigned by two designated seniors or to request a sitting judge of the High Court to propose my name. I initially approached a very respected, senior member of the bar, who was not yet conferred any designation of a senior advocate. He told me, Son, the fact that you feel you have to make an application for being designated as a senior itself shows, you are unfit to be a senior advocate. A senior advocate will have to be recognized by the Bar and not the Bench. Very fine for the old man to say. He is not in touch with ground realities.

I thereafter approached a sitting Judge, before whom I had argued many cases and had established my mettle. The member of the bench looked happy at first and said, I think I can propose you. But then can you ensure the votes. I don’t want my proposal to be shot down for not securing the requisite number of votes.

I made a check list. I was trained to deal only with taxation matters and I knew seldom else. The number of Judges knowing tax matters was countable on fingers. I had not appeared before most of the Judges, who would cast their votes on the choice of the proposer. I checked up with the other silent contenders and came to know that there were certain distinguished former members of the Bench, who had exhausted all other possible revenue earning abilities and had decided to become a member of the bar. Now the work is not coming and to redeem their importance, they had taken upon themselves the mantle of canvassing and proposing. Once there is a rumour with regard to the intention of becoming a senior, then they will approach you. Sure enough, I got the call. I was advised to appear before various benches in different matters in different branches of law, in which I had only elementary knowledge.

I had already got my feet wet and had already found snippets of my escapades being spoken to by my brethren. I therefore decided to go full throttle with this charade. Now apart from the performance in the court, the voter must be constantly reminded of your presence. I am basically an introvert. However I got my act of extrovert ready and attended all the funerals, receptions, legal services classes, taking extra care to ensure that I exchange pleasantries with the voters. I took special care to ensure that I am always there in case of any joyous or bereavement function of the voter, no matter the distance.

The day of the vote began and I comfortably secured the votes. My hardwork for the last few months paid off handsomely. Now I can get that blessed client to pay me that handsome fee, which his managing director has promised. Now I will be given the respect I richly deserve. My cases will be taken out of turn and my client will be granted favourable orders, for which they will be handsomely billed. The advocates, inferior to me by way of designation, will queue up to me, to represent their case. I will initially be easy on the fees and thereby gradually increase the fees.

Six months have elapsed, after I threw the extravagant party, on being designated senior advocate. I got the votes……Didn’t I, Where is the recognition? They told me that I shall not have any client interaction and I should only take briefs entrusted by the un-designated advocates. I had to wait for two months without a single soul coming in. When it came to a stage where even my diehard clients were abandoning me, I pressed the panic button. Now I work 12 hours a day to ensure I don’t lose ground to my unscrupulous brethren.

Today was the worst day. I had to stand for close to two hours and none of the junior lawyers even had the courtesy to get up and offer me a chair. To add insult to injury they all got up and respected a person who was not even designated as a senior advocate. Granted he has knowledge, experience and expertise. So what ? Where are the votes? Where is the designation ? Where is the striped coat ? Worse, granted I had a weak case, but then notwithstanding my designated status, the court chose to allow the case filed by a rank junior. So what if the case is weak, did I not get the votes? If the case was going to be decided on merits in every case, then why did I waste my time canvassing for votes.

Now I am going through the same process of trying to undo what I had done and get back to being a normal advocate. Only, now I am told that the same will result in disastrous consequences. I might wind up rubbing the voters in a wrong way. I might be made a laughing stock. My undoing would result in my professional competence being questioned. Now that I am a designated senior ,I can’t go to the bar, get drunk and spew venom on all and sundry. I have the four corners of my house. In short I am stuck being a senior with no escape. How I wish….?

This piece was written by the author totally disgusted with the manner in which the entire process of designation of an advocate as senior advocate is contemplated. Sec.16 of the Advocates Act prescribes two kinds of Advocates. Senior and other Advocates. An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction. A Senior Advocate shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe. Section 23 of the Advocates Act stipulates that Senior Advocates shall have pre-audience over other advocates; and the right of pre-audience of senior advocates inter seshall be determined by their respective seniority. Therefore going by the plain meaning of the language used in the Advocates Act, a senior need not have specialization in all branches of law. Why then is the necessity of obtaining votes from all the Judges. Maybe because the word used in Section 16 is the Supreme Court or the High Court. There is a presumption that a person who is appointed as a Judge, be it the
Munsiff/Magistrate, District Judge, High Court Judge or Supreme Court Judge, is a person who will dispense justice to the best of his ability. The Constitution recognizes the competence of the persons donning the post. Let us start by presuming so. If that is the case, then if a Judge of the High Court is constitutionally correct in deciding valuable rights of parties, must not the wisdom in selecting a person as a senior designated advocate, be respected by the other Judges. Every sitting Judge constitutes the High Court. By respecting the choice of a Judge in the case of designation, the Judge selecting a candidate for the said post will doubly ensure that the criteria laid down is scrupulously met as he is responsible for his choice. By putting the choice to vote, there is no accountability and ultimately, the bar as a whole suffers. The fact that an advocate chooses to canvass his candidature will, under normal circumstances, act as an automatic disqualification. I conclude by stating, the status of the seniority of an advocate will have to be recognized by the Bar. It must come from within. It cannot be thrust on the Bar. A designated senior will not command respect by virtue of his designation alone. He will have to measure up to the high standards set up by the Bar. There is a choice to be made and I rest my case.

Invocation of Article 131 of the Constitution of India to Challenge the
Constitutional Validity of the Citizenship (Amendment) Act, 2019 –
A Controversial Position

(By S.K.Premraj  Menon, Advocate, High Court of Kerala)

a. State of Kerala has filed a suit vide O.S.No.2 of 2020 before the Hon’ble Supreme Court of India, primarily challenging the constitutional validity of the Citizenship (Amendment) Act, 2019. The validity of the Passport (Entry to India) Amendment Rules 2015 as well as the Foreigners (Amendment) Order, 2015, which regularizes non-Muslim undocumented migrants from Pakistan, Bangladesh and Afghanistan who had entered India before 2015 also have been challenged. The suit is one invoking Article 131 of the Constitution, on the ground that the Citizenship (Amendment) Act, 2019 and the other amended laws infringe the principle of secularism besides infraction of the fundamental rights guaranteed under Article 14, 21 and 25 of the Constitution of India. The Governor of Kerala expressed his displeasure in filing the suit stating that Rule 34(2) of the Rules of Business of the Government of Kerala made in accordance with Article 166 of the Constitution of India, which mandate that the State Government should inform the Governor on matters that affect the relations between the State and the Centre has been violated, which is to be viewed as a deliberate attempt challenging the very authority of the Governor’s office.

b. The suit filed by the Government of Kerala is rather different from the other matters before the Apex Court which challenge the Citizenship (Amendment) Act, 2019 for the very reason that in the suit, it is the State itself, which questions the validity of the parliamentary legislation, on invocation of the original jurisdiction of the Hon’ble Supreme Court. This rekindles some vexed issues in our Constitutional law vis-à-vis the Centre-State relations and the adjudication of the purported civic differences under Article 131.

c. As held in State of Madhya Pradesh v. Union of India & Anr.(2011 (3) KLT Suppl.14  (SC) = AIR 2012 SC 2518),while considering an amendment application in the original suit filed by the State of Madhya Pradesh before the Hon’ble Supreme Court under Article 131of the Constitution of India, seeking to declare as unconstitutional, the notifications/orders issued by the Union of India under Sections 58(3) and 58(4) of the Madhya Pradesh Reorganization Act, 2000, notifying the date of dissolution of the Madhya Pradesh Electricity Board and apportioning its assets, rights and liabilities between the successor Electricity Boards for the reorganized States of Madhya Pradesh and Chhattisgarh, it has been held that normally, for questions relating to validity of Central or other laws, the appropriate forum is the extraordinary writ jurisdiction under Articles 32 and 226 of the Constitution of India in a Writ Petition and not an original suit filed under Article 131 which vests exclusive jurisdiction of the Apex Court as regards the dispute enumerated therein. It is relevant to point out that Article 131A of the Constitution inserted by (42nd Amendment) Act 1976, provides for exclusive jurisdiction to the Apex Court in regard to questions as to constitutionality of Central laws. Article 131 A viewed as substantially curtailing the power of judicial review of the writ Courts, that is, High Courts under Article 226 and the Apex Court under Article 32 was omitted vide Constitution (43rd  Amendment) Act, 1977. It follows that when the Central laws can be challenged in the State High Courts as well and also before this Court under Article 32, normally, no recourse can be permitted to challenge the validity of a Central law under the exclusive original jurisdiction of this Court provided under Article 131.Anyhow, in State of Jharkhand v. State of Bihar(2015 (1) KLT OnLine 1114 (SC)) (Order dt. 25.11.2014 in I.A.Nos.3 in 2014 and 5 of 2014 in O.S.No.1 of 2012 on files of the Hon’ble Supreme Court), the Apex Court faced with a question about the maintainability of a suit challenging the vires of the Bihar Reorganization Act, 2000 under Article 131 of the Constitution, disagreed with State of Madhya Pradesh v. Union of India & Anr.(supra)and referred the question to a larger bench. The dispute between State of Jharkhand and State of Bihar is regarding the liability of State of Bihar to pay pension to employees of State of Jharkhand for the period of their employment in the former, undivided Bihar State. The Apex Court has not answered the reference yet and the decision of the larger Bench would certainly have a bearing on State of Kerala’s present challenge to the Citizenship (Amendment) Act, 2019 and allied amended laws.

d. So as to comprehend the jurisdictional frontiers of Article 131 in respect of a suit, where a legislation itself is under challenge, prior to delving into the core-issue, one must run through the very words employed in Article 131, which reads :

Original jurisdiction of the Supreme Court -

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute -

(a)Between the Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more other States on the other; or

(c)Between two or more States,

if and in so far as the dispute involves any question whether of law or fact on which the existence or extent of a legal right depends :

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

A cursory glance of the provision shows that there are two conditions under Article 131that one must fulfill, in determining the maintainability of a suit. First is, in relation to the parties to the dispute and the next is, in relation to the nature of the dispute. When a State challenges a law under Article 131, where the Union is the defendant, there would not be much difficulty in satisfying the first requirement. As to the second requirement, the conclusion may not be that easy, especially in a case like this. In determining the nature of the dispute and if it qualifies for adjudication under Article 131, the effect of the impugned legislation on the ‘legal rights’ of the plaintiff-State would be a significant facet. If the legal rights of the plaintiff-State have been affected, the suit would be maintainable. However, the examination should only be done on a prima faciebasis to see if any ‘legal rights’ have been infringed, in fact, or if the suit is a vexatious or bogus one under the semblance of violation of such rights.

e. While considering the precise scope of Article 131 of the Constitution, it was observed by a Seven Judge Constitution Bench of the Hon’ble Supreme Court in State of Rajasthan v. Union of India (1977 KLT OnLine 1117 (SC) = (1977) 3 SCC 592) that the true construction of Article 131 of the Constitution is that a dispute must arise between the Union of India and a State and that it cannot be which arises out of differences between the Government in office at the Centre and the Government in office in the State. It was also explained that the purpose of Article 131 is to provide a forum for resolution of disputes which must involve a question based on the existence or extent of a legal right and not a mere political issue. The Apex Court held that mere wrangles between Governments have no place in the scheme of Article 131. They have to be resolved elsewhere and by means less solemn and sacrosanct than a Court proceeding. Article 131 speaks of a legal right, which must be that of the State. The dispute about a legal right, its existence or extent, must be capable of agitation between the Government of India and the States. The States as a party must affirm a legal right of its own which the Government of India has denied or is interested in denying giving rise to a cause of action. For the purpose of deciding whether Article 131 is attracted, the subject-matter of the dispute, assumes great importance. The nature, scope and applicability of Article 131 of the Constitution again fell for consideration by another Seven Judge Constitution Bench of the Apex Court in State of Karnataka v. Union of India(1978 KLT OnLine 1027 (SC) = (1977) 4 SCC 608], wherein, reiterating the reiterating the principles laid down in State of Rajasthan v. Union of India(supra), it was held that it has to be remembered that Article 131 is traceable to Section 204 of the Government of India Act, 1935. The jurisdiction conferred by it thus originated in what was part of the federal structure set up by the Government of India Act, 1935. It is a remnant of the federalism found in that Act. It should, therefore, be widely and generously interpreted for that reason too so as to advance the intended remedy, it can be invoked, whenever a State and other States or the Union differ on a question of interpretation of the Constitution so that a decision of it will affect the scope or exercise of governmental powers which are attributes of a State. It makes no difference to the maintainability of the action if the powers of the State, which are Executive, Legislative and Judicial, are exercised through particular individuals as they necessarily must be. It is true that a criminal act committed by a Minister is no part of his official duties. But, if any of the organs of the State claim exclusive power to take cognizance of it, the State, as such, becomes interested in the dispute about the legal competence or extent of powers of one of its organs which may emerge. The State concerned, which challenges the validity of the action of the Central Government against one or more of its Ministers in respect of acts involving exercise of its governmental powers, would have sufficient interest to maintain a suit under Article 131 because it involves claims to what appertains to the State as a ‘State’. It may be that, if the effect upon the rights or interests of a State, as the legal entity which constitutes the legally set up and recognized governmental organization of the people residing within certain territorial limits is too remote, indirect, or infinitesimal, upon the facts of a particular case, it is not entitled to maintain a suit under Article 131. In the concurring judgment of His Lordship Justice N.L.Untwalia, while referring to the facts of the case, the purport of Article 131 has further been explained that unless the power exercised by one authority brings about a dispute impinging upon the legal right of the other authority, the latter cannot come under Article 131 and say that merely because it was within its power to do so its legal right is affected by the illegal exercise of the power by the other authority. The said exercise of the power must directly or by necessary implication affect the legal right of the other authority. He went on to support the proposition by an illustration. Suppose, the Central Government, in pursuance of a law made by the Parliament in respect of an entry in List II, say, Entry 8, relating to intoxicating liquors, make an order against a person residing in or an officer of any State. The order will be obviously bad, as having been issued under an invalid law made by the Parliament. Who can challenge this order? Obviously the person affected or aggrieved by the order. If the order does not affect the legal right of the State or the State Government (for the purpose of testing the argument, the two may be equated), can the State file a suit under Article 131 merely because the order has been made against its resident in accordance with a law which encroached upon the exclusive legislative field of the State? The answer, must be in the negative. As is evident from the ratio laid down in the above decisions, every dispute which may arise between the States on the one hand and the Union of India on the other, in discharge of their respective executive powers cannot be construed as a dispute arising between the State and the Union of India attracting Article 131 of the Constitution. It is also clear that Article 131 is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the legal rights flowing therefrom. As forestated, Section 204 of the Government of India Act, 1935 was the provision corresponding to Article 131 of the Constitution and interpreting the said Section 204 of the Government of India Act, 1935 the Federal Court has held in United Provinces v. Governor-General in Council(AIR 1939 FC 58) that the term ‘legal right’ used in Section 204 means a right recognized by law and capable of being enforced by the power of a State.

f. A peculiar feature of Article 131 is that it does not prescribe any period of limitation within which a State or the Union of India has to file a dispute in the Apex Court. To my limited knowledge, there is no provision of law prescribing the period within which a dispute under Article 131 of the Constitution can be instituted by a State against any other State or the Union of India, particularly when Article 112 of the Limitation Act, 1963 excludes a suit before the Apex Court in the exercise of its original jurisdiction.

g. His Lordship Justice Y.V.Chandhrachud (as he was then) in State of Karnataka v. Union of India[supra] held that the jurisdiction conferred on the Apex Court by Article 131 of the Constitution of India should not be tested on the anvil of banal rules which are applied under the Code of Civil Procedure, 1908 for determining whether a suit is maintainable. Article 131 undoubtedly confers ‘original jurisdiction’ on the Apex Court and the commonest form of a legal proceeding which is tried by a Court in the exercise of its original jurisdiction is a suit. But a constitutional provision, which confers exclusive jurisdiction on this Court to entertain disputes of a certain nature in the exercise of its original jurisdiction, cannot be equated with a provision conferring a right on a civil Court to entertain a common suit so as to apply to an original proceeding under Article 131, the canons of a suit which is ordinarily triable under Section 15 of the Code of Civil Procedure, 1908 by a Court of the lowest grade competent to try it. Advisedly, the Constitution does not describe the proceeding which may be brought under Article 131 as a suit and significantly, Article 131 uses words and phrases not commonly employed for determining the jurisdiction of a Court of first instance to entertain and try a suit. It does not speak of a ‘cause of action’, an expression of known and definite legal import in the world of witness actions. Instead, it employs the word ‘dispute’, which is no part of the elliptical jargon of law. But above all, Article 131 which in a manner of speaking is a self-contained code on matters falling within its purview, provides expressly for the condition subject to which an action can lie under it. That condition is expressed by the clause ‘if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends’.  A proceeding under Article 131 stands in sharp contrast with an ordinary civil suit. The competition in such a proceeding is between two or more Governments - either the one or the other possesses the Constitution power to act. His Lordship Justice P.N.Bhagwati (as he was then), agreeing with His Lordship Justice Y.V.Chandrachud, observed that the only requirement necessary for attracting the applicability of Article 131 is that the dispute must be one involving any question ‘on which the existence or extent of a legal right’ depends, irrespective whether the legal right is claimed by one party or the other and it is not necessary that some legal right of the plaintiff should be infringed before a suit can be brought under that Article. What has, therefore, to be seen in order to determine the applicability of Article 131  is whether there is any relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute. If there is, the suit would be maintainable, but not otherwise. Considering the leading precedents on the subject, the position has been illuminatingly expounded by His Lordship Chief Justice S.Manikumar in Mahesh.G. v. Union of India (2020 (1) KLT SN 6 (C.No.11) = 2020 (1) KLT OnLine 1111) (Judgment dt. 18.12.2019 in W.P.(C) Nos. 2224, 5482, 6076, 6823, 7060, 7961 and 21321 of 2019 on files of the Hon’ble High Court of Kerala). Drawing a rather rigid, watertight distinction between ‘State’ and ‘State Government’ in the context of Article 131, it is true that theoretically this distinction does exist and it finds recognition in Sections 3(58) and 3 (60) of the General Clauses Act, 1897. In State of Rajasthan v. Union of India[supra] it is held that there is a distinction between ‘State’ and ‘State Government’.

h. Normally, only a person directly affected by the infringement of a legal right or protection can initiate action before Courts of law. This is the principle behind locus standi. Anyhow, if an aggrieved person is unable to represent his or her interests, the Government can sue on behalf of the persons under disability for the protection of their rights. A Constitution Bench of the Apex Court, in Charan Lal Sahu v. Union of India (1990 (1) KLT OnLine 1001 (SC) = AIR 1990 SC 1480), explained the doctrine of parens patriaejurisdiction, holding that  this doctrine is an aspect of sovereign and inherent power enjoyed by the State for the protection of the health, peace, morals, economic and social well-being of its people. So academically, one can argue that State of Kerala could make use this doctrine to sustain the institution of suit under Article 131 of the Constitution. But this would be quite unprecedented and no States have never invoked this doctrine to knock the doors of the Hon’ble Supreme Court under Article 131 in a like manner, ever before. In the suit filed by State of Kerala, conceivably, the interests characterized by the State have some sovereign flavour. Fundamental Rights and the concept of secularism is not the exclusive domain either of the Centre or the States under the Indian Constitution. They are rather restrictions operating against both and impose a duty upon them to respect and preserve these constitutional directives. Hence the interest identified by the State of Kerala might pass the muster under the first prong of the twin test. The said statement however, applies with the caveat that the constitutionality or otherwise of the legislation is not the same as identification of the interest. Under the second prong viz., the test of redressability, the suit fails for the simple reason that the State of Kerala does not have legislative competence to undo any action or legislation enacted by the Parliament concerning citizenship and admission into or expulsion from India as these are matters that fall exclusively within the competence of the Parliament under List I of Schedule VII to the Constitution. The Citizenship (Amendment) Act, 2019, Passport (Entry to India) Amendment Rules 2015 and the Foreigners (Amendment) Order, 2015, impugned in the suit have no implications on the legislative powers, responsibilities and local laws of the State. With the concept of a single citizenship contemplated under the Constitution, where Parliament enjoys exclusive jurisdiction, States cannot sue in the capacity of a surrogate to challenge laws where it has no interest or role to perform.

i. Operating to the exclusion of all other Courts in the country, the constitutional rationale for creating an exclusive jurisdiction to hear and decide disputes between the States and Centre is simple. Disputes touching upon their legal rights should only be tried by the highest Court of the country. The founding architects of the Constitution wanted such disputes to remain beyond the pale of influence of the constituent units. Anyhow, in invoking this jurisdiction, the party i.e. the State approaching the Apex Court must overcome the textual jurisdictional hurdle of the ‘existence or extent of a legal right’ engrafted in Article 131. It goes to the root of maintainability of a suit under Article 131. In establishing the maintainability of a suit Article 131, the Hon’ble Supreme Court has laid down the test of ‘vindication’ before it assumes jurisdiction. It means that the States in resorting to Article 131 must endeavor to vindicate their legal rights. It remains trite that the expression ‘legal right’ under Article 131 can manifest itself in the form of a matter on the very civic structure envisaged under the Constitution. This arises when Centre and the State differ on interpretation of the Constitution which would have ‘the inevitable effect of defining the governmental powers or legal competence of the State’. The nature of disputes could thus include constitutional disagreements over the anticipated imposition of President’s Rule, dissolution of State Legislative Assemblies, division of assets post-State Reorganization, territorial disputes between States and distribution of legislative powers under Schedule VII of the Constitution, etc. Encroachment of powers through legislative and executive actions and interference in the sphere of authority allotted to a State has been a common feature to the disputes initiated under the original jurisdiction of the Apex Court. A challenge to the constitutionality of the Citizenship (Amendment) Act, 2019, Passport (Entry to India) Amendment Rules 2015 and the Foreigners (Amendment) Order, 2015 would not fall within the category of disputes that have any bearing on the relationship between the Centre and States. With the Parliament alone having the competence to enact a law under Articles 11and 246 of the Constitution of India read with Entry 17 of List I on the acquisition of citizenship, any doubts about the legislative competence of the Parliament would thus be ex facieunfounded and unwarranted. In my limited understanding, even the resolution passed by the Kerala State Legislative Assembly on the Citizenship (Amendment) Act, 2019 without any constitutional basis establishes that the resistance to the citizenship and allied laws is purely a political disagreement and nothing more. Seeking judicial intervention for settlement of such ideological wrangles sets an outrageous precedent where States can challenge probably constitutional legislations for extraneous motives and without cause of action. That being so, invocation of Article 131 of the Constitution of India by the State of Kerala appears to be a flagrant misuse of Article 131. One cannot lose sight of the fact that in similar matters before the Apex Court, invoking more potent provisions of Article 32 of the Constitution to challenge the validity of the Citizenship (Amendment) Act, 2019 and allied laws, there are much better-situated persons claiming discriminatory treatment to agitate the constitutionality of the citizenship law in judicial forums. In such a scenario, it seems very difficult for the State of Kerala to argue that it is acting as a guardian on behalf of those refugees who cannot defend their rights. The very application of the parens patriaejurisdiction to maintain the suit under Article 131, comes under a heavy cloud. The Apex Court would seriously consider the original intention of the framers behind Article 131 at the time of the founding of the Constitution. Even though fundamental rights and secularism are ostensibly involved, these considerations would not deter the Apex Court in deciding the true purpose of Article 131. Safeguarding the civic structure is a vital constitutional thing. But, to entertain the present suit filed by State of Kerala could pave way for prospective menaces where political conflicts would be battled on invocation of the original jurisdiction of the Hon’ble Supreme Court.

Whether Section 148 of The N.I. Act Has Any Application In Pending Appeal

(A Study through the recent decisions of Supreme Court)

(By Thampi.V.S., Advocate, Kollam)

The writer here named above is one of the counsel who had lost the benefit of this amendment. I am sharing hereby some of my thoughts in the light of recent Supreme Court decisions.

Before we go to the decisions, it will be meaningful to see the legislative history before the amendment of this provision.

HISTORY

“The Negotiable Instruments Act 1881 (the Act) was enacted to define and amend the law relating to promissory notes, bills of exchange and cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques, due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realize the value of the cheque. Such delay compromises the sanctity of cheque transaction. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy.

Now it is necessary to see the amended provision.

Section 148 -- Power of Appellate Court to order payment pending appeal against conviction

(1) Notwithstanding anything contained in the Code of Criminal Procedure 1973, in an appeal by the drawer against conviction under Section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial court:

Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143A.

(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the appellant.

(3) The appellate court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:

Provided that if the appellant is acquitted, the court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the complainant”.

Recently a two judge bench of the S.C. comprised by Justice M.R.Shah and A.S Bopanna, held in Surinder Singh Deswal @ Col. S.S.Deswal & Ors. v. Virender Gandhi, reported in (2019 (2) KLT 985 (SC)) that S.148 as amended shall be applicable in respect of appeals against the order of conviction and sentence, even in a case where criminal complaints were filed prior to Amendment Act No.20/2018 i.e., prior to 01.09.18.

Before analyzing this decision it is necessary to see the basis or the root cause for making such a decision. In the said decision S.C. disposed off a batch of criminal appeals challenged a common judgment and order passed by the Punjab and Haryana High Court. In the last sentence of the 10th para of the said decision S.C. stated that “in view of the above and for the reasons stated herein above, impugned judgment and order passed by the High Court (P&H) does not call for any interference”. Moreover in the 12th para of the said decision S.C. further stated that “in view of the above and for the reasons stated above, we see no reason to interfere with the impugned common judgment and order passed by the High Court (P&H) dismissing the revision applications confirming the order passed by the 1st appellate court directing the appellants to deposit 25% of the amount of fine or compensation pending appeals”. These two statements clearly shows the intention of the Supreme Court not to interfere in the common order passed by the Punjab and Haryana High Court. This means Supreme Court has accepted the finding in that common judgment as such.

Now we can see the finding of Justice Mahabir Singh Sindhu of Punjab and Haryana High Court, who passed the common order challenged before the S.C.

Finding of Justice Mahabir Singh Sindhu

“A co-ordinate bench of this court in C.R.R.No.9872 of 2018 titled as M/s.Ginni Garments & Anr. v. M/s. Sethi Garments (2019 (2) KLT OnLine 3101 (P. & H.)) along with other connected matters, decided on 04.04.19, after taking into consideration the provision of Section 143A and Section 148 of the Amendment Act 2018 held as under:-

xxxxxx Having heard the learned Counsel for the parties and perusing the documents on record it is clear that the dispute between the parties is relating to the applicability of Section 143A and Section 148 of the Act introduced vide Amendment dtd: 02.08.2018 to the cases which were already pending at the stage of the trial or to the appeals arising from such trials, whether filed before or after the enforcement of the above said provisions. xxxxxx Since the provision for recovery of fine or compensation from the appellant/convict already existed in the existing procedure relating to the recovery, therefore, the provisions introduced vide S.148 of the Act which relates only to recovery of amount partly as interim measure has to be treated purely procedural only, which is otherwise also beneficial for the appellant as compared to the pre-existing provisions. Hence it has to be held that provision of Section 148 of the Act shall govern all the appeals pending on date of enforcement of this provision or filed thereafter.

This court does not find any substance in argument of learned counsel for the petitioners that since the object and reasons for introducing the amendment relate to giving benefit to the complainant and do not relate to the procedure of the appeal, therefore it cannot be treated to be a procedural step. As is noted above irrespective of the object and reasons of the Act, the bare language of the provisions only authorizes the court to pass an interim order which is only in modification of the procedure of recovery which already existed in the general provisions of law relating to recovery of fine or compensation. Hence, for obvious reasons, the rationale qua objects and reasons of the Act, which is applicable at the stage of trial; cannot be imported to the stage of appeal. As mentioned above, at the stage of trial the provision of S.143A of the Act has created a new obligation against the accused, which was not contemplated by the existing law and which created a substantive liability upon him, whereas the provision of Section 148 of the Act only re-iterated; and to some extent modified in favour of the appellant, the procedure of recovery already existing in the statute book. Still further, this court does not find any force in the argument of the learned counsels for the appellants that Appellate Court could not have made the suspension of sentence of the petitioners conditional upon deposit of amount of interim compensation as ordered by the Appellate Court. It deserves to be noted that even suspension of sentence is in the judicial discretion of the Appellate Court. If the Appellate Court makes such judicial discretion subject to a statutory provision relating to deposit of interim compensation, then no fault could be found with such exercise of discretion. Moreover such a course of action even forms part of procedure prescribed under Section 424 of Cr.P.C., through relating to a different type of suspension of sentence. But it shows that if the Appellate Court makes suspension of sentence subject to payment of statutory interim compensation or fine then such an order is in commensurance with the statutory provisions contained in Cr.P.C. and the intention of the legislatures as contained in Section 148 of the Act.

xxxxxx In view of the above, the point involved in the present cases has already been decided and the same is squarely covered by the judgment rendered in M/s. Ginni Garments and another v. M/s.Sethi Garments. Consequently this court has no option except to dismiss all the petitions”.

This was the finding of Justice Mahabir Singh Sindhu. In this case a batch of petitions (33 petitions) are decided in which some of the petitions are challenged the orders passed by the trial court under Section 143A petitions and the rest of the petitions are challenged the orders passed by the Appellate Court under Section 148 petitions. In this case all the petitions filed u/S.148 are filed after the Amendment Act came into force, hence the application of S.148 to pending appeal or appeal filed prior to the Amendment Act does not arise for consideration in this case. But Justice Mahabir Singh Sindhu disposed the above said batch of petitions by relying upon the judgment passed by the Division Bench of that Court in M/s. Ginni Garments & Anr. v. Sethi Garments (2019 (2) KLT OnLine 3101 (P. & H.),

So, for further clarification of finding of Justice Mahabir Singh Sindhu, we have to see the relevant portion of the Judgment of the division bench in M/s. Ginnni Garments (supra) case.

Finding in M/s. Ginni Garments case

xxxxxx “Although the provisions of S.143A of the Act cannot be applied to the pending trials/however, this court finds that the situation regarding S.148 of the Act is drastically different. As observed above, this provision also has to be read in conjunction with the relevant provisions of Cr.P.C. Further this court also finds substance in the argument of the learned counsel for the respondent that although “Right to Appeal” per se is a substantive right, file and prosecute appeal only in accordance with any particular provisions. The right to appeal being a statutory right, has to be availed only within the parameters provided by the said provision. Therefore if any provision relating to dealing with the appeal by the appellate court is altered, the said provision has to be treated as a procedural provision only. Considering the provision of S.148 of the Act, this court finds substance in the argument that the said provision does not in any way affect the substantive right of the accused, to defend himself or to prosecute his appeal. The provision categorically provides that in case the accused/appellant is acquitted by the Appellate Court, then the amount awarded by the appellate court shall be returned to him by the complainant along with interest. It is no way affect the defence or the prosecution of appeal by the appellant, rather it is a beneficial provision for the appellant/accused. Hence it has to be held that provision of S.148 of the Act shall govern all the appeals pending on date of enforcement of this provision or filed thereafter”.

This was the base case relied upon by Justice Mahabir Singh Sindhu, while disposing the Surinder Singh case then. When the matter came before the Supreme Court, Supreme Court accepted the decision of Justice Mahabir Singh Sindhu and stated as follows: “By the amendment in S.148 of the N.I. Act it cannot be said that any vested right of appeal of the accused has been taken away or affected. Therefore the submission on behalf of the appellants (accused) that amendment in S.148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 01.09.2018 shall not be made applicable has no substance and cannot be accepted”.

Here Supreme Court made it clear that the amendment u/S.148 of N.I Act does not take away or affect any vested right of appeal of the accused. This clearly throws light on the intention of the Supreme Court that the amendment u/S.148 is not substantive in nature but it is purely procedural in nature. Moreover Supreme Court said in that decision, that the submission of the appellant (accused) has no substance and cannot be accepted. Now we can see what was the submission made by the appellant (accused). The appellant submitted that the amendment in S.148 of N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 01.09.18. If we check the submission of the appellant so closely we can see that his submission is that S.148 has no retrospective application and more particularly in those cases where complaints filed prior to the amendment. If we scrutinize this point we can see that there may be two kind of appeals (only for the purpose of understanding). One is, appeal filed prior to the amendment (pending appeal) and another is appeal filed after the amendment. Both these appeals may arise in a complaint filed prior to the amendment i.e., 01.09.2018. Can we expect that Supreme Court has not aware about these two situations which may arise in a complaint filed prior to the amendment. No, Supreme Court was well aware about these two situation that’s why Supreme Court has stated that “even in a case where the criminal complaints for the offence under S.138 of N.I. Act were filed prior to Amendment Act No. 20/2018 i.e., prior to 01.09.18 S.148 is applicable”. This clearly includes both the pending appeal as well as post amendment appeal. Not only this, Supreme Court has never made any indication in that decision that S.148 is not applicable to pending appeal. This means that what is not prohibited is presumed to be permitted.

But here in Abu-Faizal v. State of Kerala (2019 (4) KLT OnLine 3062) Justice Mary Joseph heavily relied upon the contention of the learned Senior Counsel on behalf of the appellant (accused) that the amendment brought into N.I. Act being effective only from 01/09/18, cannot have retrospective operation to Crl. Appeals filed prior to that date. On relying that contention the Hon’ble Justice ordered that “in view of the patent illegality involved in the order, notice to respondent is dispensed with”. In the eye of law, no doubt, this order is purely illegal since it violates the principle of natural justice of the poor complainant who had spend considerable time and resources in court proceedings for the past 7 years. Can we say, that, this was the intention of the legislature while making such amendment. For answering this question, we have to study S.148 of N.I.Act more closely. Look at the heading itself.

“Power of Appellate Court to order payment pending appeal against conviction”.

Firstly the heading itself shows the power of the appellate court to pass order regarding payment in pending appeal against conviction. If Parliament had intention that this provision should apply only to those appeals filed after the amendment then the word “pending” can be avoided so as to appear like “power of Appellate Court to order payment in appeal against conviction”. But here Parliament deliberately used the word “pending appeal” which means the benefit of this provision should also go to the pending appeals.

Secondly the S.148(1) starts with “Notwithstanding anything contained in Cr.P.C. ..........................This is a non obstante clause. The word non obstante clause is defined in P. Ramanatha Aiyar’s Concise Law Dictionary as “it is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment”. This means the contrary provisions in Cr.P.C. is excluded.

Thirdly, there is no indication that when this power is to be exercised that means, this power can be exercised at any time. What is not prohibited is presumed to be permitted can be applied here.

Fourthly Sub-clause (3) in S.148 clearly state that the Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal. This clearly shows that during the pendency of the appeal the court may direct the release of the amount deposited by the appellant. Take a moment that the appellate court had not exercised its power u/S.148 while suspending the sentence. Can we say that the complainant, who appeared subsequently cannot invoke the benefit of this provision since the appellate court had already suspended the sentence. Then it will be a nugatory of this beneficial provision. Absolutely, this will not be the intention of the legislature.

Lastly, this provision is a beneficial provision for the accused also. No prejudice will cause to the accused.

By the above mentioned points we can see the intention of the legislature behind its enactment, that it should be applied to pending appeals also.

Moreover a two Judge bench of the Supreme Court headed by Justice U.U.Lalit and Vineeth Saran subsequently held in Raja v. Tejraj Surana (2019 (3) KLT 634 (SC)) that S.148 has retrospective in operation while S.143A has prospective in operation.

While deciding this case, S.C. culled out certain principles settled by S.C. with regard to the ambit and scope of an Amending Act and its retrospective operation as follows:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, where as a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

In Raja v. Tejraj Surana case S.C. held “that S.143A is prospective in operation since it imposes new obligation or liability upon the accused before his guilt is being ascertained. But S.148 of N.I.Act stands on a different footing while comparing with S.143A. S.148 applies only post conviction stage, where the accused is already found guilty and liable for payment. This liability is not a fresh liability or burden. It is his duty to pay. If he has failed to pay that amount; the consequential recovery of that amount can be made through the modality of S.421 or S.357 of Cr.P.C. That’s why the legislature has not provided in S.148 a provision which is similar to sub-section (5) of S.143A of the Act, because S.421 or S.357 of the Code which applies post conviction stage are adequate to take care of such requirements. In that sense S.148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by S.143A of the Act”. This was the finding of Supreme Court in Raja v. Tejraj Surana case.

In Tejraj Surana case Supreme Court further stated that:- we must refer a decision of this court in Employee’s State Insurance Corporation v. Dwaraka Nath Bhargwa (1997 (2) KLT Online 1120 (SC) = (1997) 7 SCC 131) where provision of S.45B was inserted in Employees State Insurance Act 1948 with effect from 28.01.1968 was held to be procedural in nature and that it could have retrospective application. Said S.45B is as under:-

“45B.-- Recovery of contributions: Any contribution payable under this Act may be recovered as an arrear of land revenue”.

In this case the issue was whether the modality of recovery so prescribed in said Section 45B could be involved in respect of amounts which had become payable on 27.01.1967 and 24.01.1968 i.e., before said S.45B was inserted in the statute Book. While holding that the arrears could be recovered as arrears of land revenue, it was observed, “it is not in dispute and cannot be disputed that the contributions in question had remained payable all throughout and were not paid by the respondent”. Like that, the amendment in S.148 is procedural in nature and the liability or obligation or burden imposed by S.148 is in post conviction stage, hence it is not a liability or burden imposed upon the accused as like that of in S.143A. Thus we can come to the conclusion that S.148 is applicable not only to appeals filed after the amendment but also to pending appeals.

Abu Faizal v. State of Kerala (2019 (4) KLT OnLine 3062) a one sided verdict

In Abu Faizal v. State of Kerala (2019 (4) KLT OnLine 3062), Justice Mary Joseph in para 19 of the said decision pointed out that “the power under S.148 is meant to be invoked when the appeal is preferred or to say more specifically prior to passing of an order suspending the execution of sentence under S.389(1) of Cr.P.C, her lordship further stated that, the application preferred by either party to the appeal beyond that time shall not be entertained by the Appellate Court in view of sub-section (2) and (3) and proviso thereunder”.

This view of her lordship is not proper. I am disagreeing with this view on three grounds.

Firstly, it is a one sided verdict. This case was filed on 29.08.2019 and disposed on the very next day i.e., 30.08.2019 without issuing notice to the opposite side. It is a sheer violation of the principles of natural justice (Audi Alteram Partem). On this ground itself the applicability of this verdict can be questioned.

Secondly, No doubt, S.C. has stated in Surinder Singh’s case that the power under S.148 can be invoked by the appellate court either on application filed by the original complainant or even on an application filed by the Appellant - accused under S. 389 of Cr.P.C. to suspend the sentence. Take a moment that, if the Appellate Court failed to invoke the power u/S.148 at the time of suspending the execution of sentence by any other reason, complainant can file application for invoking the power of the Appellate Court u/S.148, because a complainant will appear before the appellate court only after the admission of Appeal and suspension of the execution of the sentence. If we take her lordships view for the sake of discussion, “that the power under S.148 is meant to be invoked when the appeal is preferred or to say more specifically prior to passing of an order suspending the execution of sentence under S. 389(1) of Cr.P.C”, the poor complainant will lose the benefit of this provision, is it was the intention of the legislature at the time of making the amendment.

Thirdly, legislature made this provision as a non obstante clause with a view to give an overriding effect over the provisions of Cr.P.C. in case of conflict. Moreover no specific time or stage is mentioned in S.148 for its application. If the legislature itself has not made any specific time or stage for its application then, how her lordship can fix or interpret that the power u/S.148 shall be invoked prior to passing of an order suspending the execution of sentence under S.389(1) of Cr.P.C. This is against the observation made by the S.C. in Surinder Singh’s case.

Fact situation in Abu Faizal’s case

It is true that Abu Faizal’s case is posted for Judgment but re-opened. After re-opening the officer who re-opened the case got transferred to another district and a new officer came to consider the case. Here the situation changed and the case which is posted for judgment taken for fresh hearing. At that time only, the complainant filed S.148 petition considering the further delay that may occur in the changed circumstances. This situation was not noted by the counsel who appeared in Abu Faizal’s case for accused and thus misled her lordship Mary Joseph to think and observe that the appeal is at the fag end of trial or pronouncement of judgment and in case the accused is acquitted no purpose will be served by directing the accused to deposit any sum. This was not misunderstood but misrepresented by the counsel appeared for the accused and it is exhaustive in a case where notice is discarded to the opposite party. This case is one of the best example, how easy courts can be misled by counsels.

Supreme court has never stated that S.148 has application in complaints filed to launch prosecution u/S.142 N.I. Act prior to 01.09.2018, which are pending consideration of courts, but stated it is applicable even in case where the criminal complaints for the offence under S.138 of the N.I. Act were filed prior to amendment Act i.e., prior to 01.09.18.

So, by this discussion we can see that in State of Punjab and Haryana S.148 has application in pending appeals, but in State of Kerala it has no application in pending appeal, because of the reported decision in Abu Faizal’s case. A decision passed by the Supreme Court has two applications in two different states, is this was the real intention of the legislature. A corrigendum is highly required from the judiciary in this regard, otherwise, who knows, how many complainants in pending appeals will lose the benefit of S.148 by the verdict in Abu Faizal’s case.

Subordinate Not Lower

(By, K. Ramakumar, Sr. Advocate, High Court of Kerala)

Recently a study was conducted on our Judiciary by a Research Institute called “Vidhi Centre for Legal Policy initiative”with which one of the most eminent Retired Judges of the Supreme Court Justice Mrs.Ruma Pal is associated. The study conducted by it through committed journalists revealed the following startling findings:

“The collegium works in mysterious ways and rarely provides reasoning for choosing a particular person. The informal criteria used to assess a suitability for appointment to the higher judiciary appears to be an income assessment (in order to assess the volume of the candidate’s practice) and the number of reported judgments where the candidate has argued. Now, mere knowledge of the law is only one component of a successful litigation practice, building one requires tremendous social capital that women and Dalit/Adivasis tend to lack – savarna men will naturally be placed advantageously here. Even men who do not tick those boxes often make it to the bench because of their proximity to the levers of power; the fabled ‘old boys’ club”.

The feed-back received by the researchers clearly shows that there is inadequate representation of the backward communities and women in the judiciary, the larger portion of the cake being eaten away by men dominated deportment. Even the President of India has opined in a speech that the representation of women, SC/STs and OBCs in the judiciary is “unacceptably low”. Significantly the study also revealed that representation of the Subordinate judiciary also is inexpiably inadequate, in spite of creditable performance put up by some of the District Judges directly recruited throughout the country. They undergo a severe test and incisive interview for selection and work like slaves. Yet many of them have performed very well and show remarkable commitment to their job and reverence to the institution they serve. Still they are not given due recognition and members of the Bar steal a march over them. This is what Retired Justice Ruma Pal along with another journalist says:

“District Judges come to the service with degrees in law and post-graduate degrees. They are quite often men and women with excellent intellect. They gather experience as Judges over the years and yet their elevation as High Court Judges is deferred because of the fixed percentage of uptake from the district judiciary.

Within a High Court, a distinction is drawn between an appointee from the high court bar and a judge from the district judiciary – the latter is given relatively unimportant jurisdictions. Members of the bar often treat them with less deference. Except for a few well-known and exceptional instances, very few district judges have made it to the Supreme Court. Gates to the latter portal are often unlocked by factors other than competence; very deserving judges are superseded on grounds of religion or caste.”[See the “Outlook Magazine on ‘How Just is our Judiciary”]

The NJAC (for short) was faulted on account of participation of the Minister for Law, obviously a politician. Those who propounded that executive presence in the selection of Judges vitiates the same is forgetting the fact that under Article 233 of the Constitution of India, the Governor makes appointment of District Judges. Has anybody made any grievance that the District Judges directly recruited or otherwise have shown subservience or servility to the executive head in any manner whatever? On the other hand it is they who had maintained a sense of sturdy independence and judicial discipline, also because the big brother is watching. The power to take disciplinary action against District Judges also vests in the Governor. Till date nobody has raised even a little finger solely because the Governor appoints District Judges that they have shown genuflection towards the executive in the discharge of their solemn duties as Judges.

Undoubtedly therefore, an unassailable cause has been made out for more representation to the backward classes, women and Dalits along with increased presence from the subordinate judiciary. How come that Sri Justice Abdul Nazir from Karnataka High Court, Sri Justice Gavai from Mumbai High Court and Justice Khanna from Delhi High Court were inducted though they were not Chief Justices in any High Courts? To make our Judiciary more representative.

Will those who are pretending slumber wake up to the situation?

Supreme Court Directions Vis-a-Vis Stay Orders –
Inscrutably Paradoxical

(By S.K.Premraj Menon, Advocate, High Court of Kerala)

a. Stay orders by Courts, often blamed for slowing down the judicial process, since 28.03.2018, comes with a six-month shelf-life, pursuant to the Apex Court verdict in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central Bureau of Investigation (2018 (2) KLT 158 (SC) = AIR 2018 SC 2039)(hereinafter referred to as the ‘Asian Resurfacingcase’) – a case which principally dealt with a corruption matter. This direction now revives tens of thousands of cases stalled for years on one ground or the other. The three Judge bench speaking through His Lordship Justice A.K.Goel, unambiguously declared that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from the date of its judgment, unless in an exceptional case by a speaking order such stay is extended. It was inter aliaheld that in cases where stay is granted in future, the same will end on expiry of six months from the date of such order, unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.It was also ordered that a copy of the said judgment was to be sent to all High Courts for necessary action. This judgment was concurred by His Lordship Justice R.F.Nariman. This declaration/direction assumes much significance, as it practically invalidates every order that is passed by the High Courts including those in exercise of its powers under Article 227 of the Constitution of India and Section 482 of the Criminal Procedure Code, 1973, by sheer efflux of time. The legality of such a direction and the Constitutional concerns that arise are earnestly endeavoured to be deliberated. It would not be out of place to mention that in Fazalullah Khan v. M.Akbar Contractor & Ors.

(2019 (3) KLT 823 (SC) = 2019 Supreme (SC) 921) the Supreme Court went on to hold that the six months’ shelf-life of stay orders mentioned judgment in Asian Resurfacingcase would not apply to the Supreme Court. In the said case, interim stay was granted to a tenant facing eviction proceedings in March 2009. The tenant filed an appeal as the revisional Court sought to proceed with the matter on the ground that on expiry of six months as held in Asian Resurfacingcase, the interim order was no longer in force.

b. Our Constitution uses both the phrases ‘Court subordinate to’ in Articles 134(1)(b)and 228 as well as ‘subordinate Courts’ in Articles 230(2)(b), 231(2)(b) and 235. The Supreme Court - the highest Court in our country, though has the appellate jurisdiction not only over High Courts but also over other Courts and Tribunals, quite interestingly, they are not declared to be subordinate to it. As one could make out, they are inferior to it but not subordinate to it. Article 227 invests each High Court with superintendence over ‘all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction’.
Article 228 empowers every High Court to withdraw a case pending in ‘a Court subordinate to it’ involving a question as to the interpretation of the Constitution. Chapter V of the Constitution bears the heading ‘The High Courts in the States’ and Chapter VI ‘Subordinate Courts’. The very fact that the Constitution uses the two phrases in different contexts shows that they are not synonymous. The phrase ‘Subordinate Courts’ is used in the sense of Courts inferior to the High Court.

c. Different elements are involved in the relationships ‘inferiority’, ‘subordination’, ‘amenability to the appellate jurisdiction’ and ‘amenability to the supervisory jurisdiction’. Though there may be some overlapping, one could be said to be synonymous with any other or with any two or three put together. All these phrases convey different notions, though there may be some overlying. There are elements existent in each, which are missing from the others. At least two depend upon statutory authority and there are statutory provisions creating the third, viz. subordination.

d. In our Constitutional framework, the Supreme Court vide Article 129 as well as the High Courts vide Article 215 are Courts of record. The High Court is not a Court subordinate to the Supreme Court, except for the appellate powers conferred on the latter vide Articles 132, 133 and 134. In fact, if we have a closer look at the Constitution, the power of the High Courts are much wider than the Supreme Court, as it not only exercises powers to issue writs for infractions of all legal rights, but also is invested with the power of superintendence over all subordinate Courts and Tribunals. Such a power of superintendence is conspicuously absent for the Supreme Court, which though being the highest Constitutional Court, must be deemed to be never intended by the founding fathers of our Constitution to supervise subordinate Courts or the High Courts.

e. The form of oath or affirmation to be made by a Judge of a High Court as in the Third Schedule to our Constitution is that he would duly and faithfully perform his duties to the best of his ability, knowledge and judgment, without fear or favour, affection or ill-will, upholding the Constitution and the laws. One thing is clear from the form of oath viz., conclusions contained in his judgment must be based on his judgment and not on judgment of some others. Of course, he has to apply the laws of India and one of the laws of India is contained in Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Going by the same, except when there is a judgment of the Supreme Court declaring the law to be applied, High Court Judges must use their own judgment even if they consider various decisions before forming their judgment. Or else that would be a contravention of the oath taken under Article 219 of the Constitution of India. The principle of the independence of the judiciary is enshrined in the oath taken by Judges and that principle cannot be overridden by any other principle.

f. The powers of the Supreme Court vis-a-visthe High Courts was considered at great length in Tirupati Balaji Developers Pvt. Ltd v. State of Bihar(2004 (2) KLT SN 79 (C.No. 96) SC = (2004) 5 SCC 1)wherein it was held that High Court is not a Court subordinate to the Supreme Court and that judicial powers vested in the High Court is much wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential election or inter-state disputes which the Constitution does not envisage being heard and determined by High Courts. It was also held that the High Court exercises power of superintendence under Article 227 of the Constitution over all subordinate Courts and Tribunals whereas the Supreme Court has not been conferred with any power of superintendence. His Lordship Justice R.C.Lahoti went on to affirm that if the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother as there were a few provisions which give an edge, and assign a superior place in the hierarchy, to the Supreme Court over High Courts, especially the appellate jurisdiction in all civil and criminal matters, which makes the Supreme Court, the highest and the ultimate Court of appeal as well as the final interpreter of the law. It was observed that the Union judiciary and the State judiciary are undoubtedly independent of each other except for a few areas relating to jurisdiction. It was further held that the Supreme Court, exercising its appellate jurisdiction, even when called upon to issue directions which is not only its privilege as appellate forum but often a necessity for meeting the demands of justice and effective exercise of appellate power, it cautiously abstains from issuing any ‘directions’ as such and rather uses the alternative and polite expressions like ‘we request the High Court’, ‘the High Court is expected to’, ‘we trust and hope that the High Court
will/shall’, spelled out by courtesy and the respect and regards which the Supreme Court has and must have for High Courts and that this practice has developed and gained ground as tradition.

g. It is in this particular backdrop, the directions issued in Asian Resurfacingcase needs to be surveyed. Interim orders of the High Court could certainly be interfered with by the Supreme Court, but only in exercise of its appellate power. The High Court, being a Constitutional Court and a Court of record, cannot be limited in its exercise of power by imposing any limits or restrictions, unless the Supreme Court interprets a statute or the Constitution and prescribes it as a matter of law. That was not the one which has happened while issuing the general directions in Asian Resurfacingcase. If the power to invalidate an order of the High Court merely by efflux of time inheres in the Supreme Court, can it then direct that no interim orders could be granted without its consent or that the High Court must not grant any interim orders at all or that all final orders should be passed in a manner that the Supreme Court directs? The directions issued in Asian Resurfacingcase can never be in exercise of the appellate power of the Supreme Court as they do not concern the case in question. They are general directions to the High Courts to deal and determine cases in a particular manner. In my limited knowledge and considering the Constitutional structure, I feel that there is no power for the Supreme Court, either in our Constitution or under any other laws to issue such general directions to the High Courts. In Madan Mohan v. State of Rajasthan(2018 (1) KLT SN 38 (C.No. 52) SC =
AIR 2017 SC 5848), the Supreme Court held that no superior Court in hierarchical jurisdiction can issue such direction/mandamus to any subordinate Court commanding them to pass a particular order on any application filed by any party. The judicial independence of every Court in passing the orders in cases is well settled. It cannot be interfered with by any Court including superior Court. As much as this dictum applies to High Courts, it applies to the Supreme Court as well.

h. We need to advert to the fact that in 1976, vide the 42nd Amendment of our Constitution, vide the then Articles 226(4) and (5), the powers of the High Court were taken away for granting ex parte interim relief to the petitioner except in exceptional cases required under the circumstances and the reasons to be recorded therefor. Vide the 44th Amendment during 1978, Article 226(3) was introduced, whereby, in case ex parte interim order by way of injunction or stay or in any manner has been granted, without furnishing to such party, copies of such petition and all documents in support of the plea for the interim orders and without giving such party an opportunity of being heard, if any application is made to the High Court for vacating such interim orders and after furnishing a copy of such application to the party in whose favour such order has been made or the concerned counsel, the High Court shall dispose of the application within a period of two weeks from the date on which the application is received in the High Court or the copy of such application is so furnished to other side, whichever is later or where the High Court is closed on the last day of that period, on the next day afterwards on which the High Court is open and if such application is not so disposed of, the interim order shall on expiry of that period or as the case may be, on the expiry of the next day stand vacated. Article 226(3) was so ordained, obviously was with an intention that ex parteinterim orders by way of injunction or stay in proceedings under Article 226 of the Constitution passed against the party by the High Court should not operate to the prejudice of that party for an indefinite period of time. The object and intention of the Parliament behind this amendment needs to be borne in mind while construing the provision. The Parliament has noticed large number of cases where ex parteorders of stay or injunction are obtained by parties without furnishing copies of the petition and stay applications thus denying grant of opportunity to the opposite parties of hearing and such ex parteorders continue to remain in operation to the prejudice of the adversary for an indefinite period of time as the stay matters do not receive consideration by the High Court within a reasonable period of time. True, there are multitudes of cases in the High Courts all over India which calls for invocation of Article 226(3). One cannot be oblivious of the fact that Article 226(3) of the Constitution of India is not being strictly adhered to by any of our High Courts and for that purpose, there are no guidelines or regulations for listing such applications, within the prescribed timeframe. In Maniben Virabhai v. District Development Officer(1996 (1) KLT OnLine 938 (Guj.) = 1996 (2) GCD 1), the Gujarat High Court went on to observe that in view of the provisions of Article 226 (3), it must flow as consequential duty on the Registry by way of rule or administrative circular to deal with such applications separately and it is the duty of the Registry and it must also be expected by the party who has obtained ex parteorder that such applications are listed before the Court within a period of two weeks from the date copy is served upon the party in whose favour the ex partead-interim order has been passed. Article 226(3) itself castes duty upon the Court to dispose of such application either way within a period of two weeks. The Court cannot dispose of the application unless the same is listed before the Court and therefore, the party moving application for vacating order, the party which has obtained the ex partead-interim order and the Registry have to see that the matter is brought before the Court within the time prescribed under Article 226(3). Whether the parties take care or not, at least the Registry has to see that the matter comes up before the Court and it is shown on the board within a period of two weeks. Once the matter is shown in the board and the party seeks time and the ex partead-interim order is extended further, that will be a different matter altogether. Because in that case with the consent of the parties the matter is adjourned and the order may be continued by the Court. But the Registry has to classify such application for vacating ex partead-interim orders separately under Article 226(3) so as to serve the object sought to be achieved by Article 226(3) of the Constitution rather than defeating the same by not listing the case in time.It appears that the directions in theAsian Resurfacingcase has not considered the timeframe spelt out in Article 226(3) as it applies to all pending cases where stay against proceedings of a civil or criminal trial is operating. In scores of cases, civil and criminal, Article 226 is being indiscriminately invoked and stay orders too are being obtained. Vide this judicial legislation in the Asian Resurfacingcase, is it be assumed that the timeframe in Article 226(3) stands enlarged? That is yet another issue.

i. If stayed cases, which are in large number, are revived for hearing, will they not cause a docket explosion and thus lead to more delay in dispensing justice? If that be so, does the directions curb the delay which was sought to be addressed? The High Courts are already overburdened. With only handful of Judges at present, the High Courts would be required to deal a major chunk of its precious judicial time to pass the reasoned orders for extending the interim orders earlier granted.

j. With all boundless respect for the Supreme Court to the greatest possible extent,
I honestly feel that issuance of general directions in Asian Resurfacingcase is legally and constitutionally indecorous, requiring rapid rectification. Would not abiding directions
vis-à-visthe extension or revival of stay orders be asking the High Court Judges to be false to their oaths? As Prince Hamlet asked, ‘to be or not to be, that is the question’.