With or Without Robes

(By Mathew Philip, Advocate, Kottayam)

The Law Lords or the Privy Council never appeared in robes. Justices of the Supreme Court of U.K. followed their tradition.

The gown has a surprising origin. It is associated with the funeral of King Charles II of England, one of the most popular and beloved Kings. Rightly, he was known as Merry Monarch, for his liveliness and hedonism. John Wilmot, a contemporary English poet and friend, portrayed him:

We have a pretty witty King

Whose words no man relies on

He never said a foolish thing

And never did a wise one.

When King Charles II died in 1685, the gentry began wearing black gown as a symbol of mourning. The formulation of a uniform for lawyers was in contemplation, that time. The black colour was preferred because it signifies authority and power. The black robes of the priests show their submission to God. Just like that, the black gown of the lawyer show his submission to justice. Also the black colour signifies that the law is blind; to the powerful and powerless, to men and women and to the rich and poor.

Wigs also appeared in 17th century during the reign of King Charles II. They were fashionable in English upper class. Now after centuries, the charm might be lost, but wig continues to be part of English lawyers. Moreover wigs and gown provide a degree of anonymity to the lawyers and judges.

The two pieces of white cloth in the neck band represents the two tablets believed to be handed over to Moses at Mount Sinai. The tablets contain laws between man and God and man and man. Bands give the message that the lawyer honours the law of God (natural law) and the law of man.

While the black colour represents nobility and authority, the white signifies light and goodness and the common man.

Black coat and trousers were in vogue for the lawyer community even before the arrival of gown and bands.

Black and white uniform for lawyers is accepted worldwide. It is followed with slight variations in shape, in Scotland, Australia, Germany, Canada, New Zealand, Hong Kong, Pakistan, Sri Lanka, Malaysia and Cypress.

In India the dress code is formulated under the Bar Council of India Rules. However there are certain exemptions. A black tie can be used instead of bands in Courts other than Supreme Court/High Courts/District Courts and City Civil Courts. Advocate’s gown is optional in courts other than Supreme Court and High Courts. The black coat is not mandatory, during summer, in courts other than Supreme Court/High Courts.

There were interesting litigations concerning robe. Prayag Das, an advocate practicing at Mofussil courts in Bulandshahr, approached Allahabad High Court (AIR 1974 All.133) with a prayer to allow him to appear, wearing Dhoti, Kurta and gown as his dress. The Hon’ble Court reminded the importance of Chapter II Part VI of the Bar Council of India Rules which reads:

“An Advocate shall, at all times, comport himself in manner befitting his status as an officer of the court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non professional capacity may still be improper for an Advocate.”

The Hon’ble Court observed that appearing without the prescribed dress is to show disrespect to the Court and the court is certainly entitled to refuse audience. It is held that the “petitioner who was wearing a Dhoti and Kurta with a gown violated the prescribed “dress and the learned Civil Judge was within his rights to refuse audience to him and the impugned orders are valid and legal.....Justice can best be administered when legal proceedings are conducted with decorum and a certain degree of formality. “The place of justice” as Francis Bacon remarked “is a hallowed place” and those seeking its aid either for themselves or those whom they represent should so conduct themselves as to uphold its dignity. The trappings of a court room and the costume specially meant for the Court and its officers, invest the Court with a sort of dignity which is not without its effect. The traditional prescribed dress of an Advocate gives him certain aloofness wherefrom his submissions come with added force. As A.G.Gardener has so eloquently expressed, “Dress has its spiritual and moral reactions. It may seem absurd, but it is true that we are in a real sense, the creatures of our clothes”.

To emphasize the need of proper dress the Hon’ble Court quoted the story of an Australian squatter:

“The apprehension might be well illustrated by a dialogue which is alleged to have transpired between the Australian squatter and his friend who visited him on his estate far away in the wilds of the interior. The friend asked him why, in so remote a place he make it a practice to “dress” for dinner. “I do it “ said the squatter, to avoid losing my self respect. If I did not dress for dinner I should end by coming into dinner in my shirt- sleeves. I should end by not troubling to wash. l should sink down to the level of the cattle. I dress for dinner, not to make myself pretty, but as a spiritual renovation”.

Another interesting case arose in our High Court. The petitioner advocate appeared before the Joint Commissioner of Excise, Trivandrum. The authority denied audience as he was not in his robes. The Hon’ble Court held that wearing gown before an authority is optional. He could also wear a black tie instead of bands, according to Bar Council of India rules.

The fight against preferential rights to Senior Advocates came into surface. Petitioner is aggrieved by the modified dress adopted by Senior  Advocates. Only one dress code is available to the community of lawyers according to Bar Council of India rules. The statue of justice is a blind woman with a scale and hence no preferential treatment be given to Seniors. It offends Constitutional guarantee of equality under Article 14. The Senior Lawyers are trying to create a class within a class.

The Hon’ble Court held that Senior Lawyers are a creation of statute vide Section 16 of the Advocates Act. They wearing the dress of Queens Counsel is a long standing practice. Hence there is no violation of Article 14 and the classification is according to law.

Recently the dress code was again agitated before our High Court. According to the petitioner dress code is a Colonial hangover and it is against the climatic conditions of Kerala. The Hon’ble Court adopted the reasoning of Allahabad High Court supra. It also quoted Satish Kumar Sharma v. Bar Council of H.P.(2001 (1) KLT Online 1005 (SC) = (2001) 2 SCC 365):

“The profession of law is called a noble profession. It does not remain noble merely by calling it as such, unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted. An institution cannot survive on its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity.”

The Hon’ble Court held that “providing a dress code for those practising in various courts can only be termed as a reasonable restriction and cannot be termed as either arbitrary or unreasonable.... Apart from identity the dress worn by the Advocate clearly induces the seriousness of purpose and a sense of decorum which are highly necessary and conducive for the dispensation of justice.”

The present dress code is a time tested attire and the colours black and white is adopted by almost all the countries of the world. The dress provide us a special identity and dignity. It amalgamates us to the rest of the community of lawyers, worldwide.

Some Thoughts on Appeals vis-à-vis High Court Act & Rules

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

I was leisurely examining the intricacies of Court Fees and Suits Valuation Act, 1959 (Kerala) once again, thanks to the astuteness of the registry. It turned out to be a fruitful exercise. The thought came to me: Are not some of the provisions of High Court Act and Rules obsolete?

Section 5: Appeal from judgment or order of Single Judge:

An appeal shall lie to a Bench of two Judges from

(i)    a judgment or order of a Single Judge in the exercise of original jurisdiction or

(ii)   a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court

(iii)   -------------

Rule 43: Appeals under Section 5 of the High Court Act:

(1) When an appeal against an appellate decree or order has been disposed of by Single
Judge an application for a declaration that the case is a fit one for further appeal under Section 5 of the Kerala High Court Act, 1959, may be made orally immediately after the judgment is delivered.

(2) If no oral application is made as aforesaid a written application may be made within 15 days from the date of the judgment. Such application shall be accompanied by a copy of the judgment.

(3) The application shall be posted before the Judge who passed the judgment and he may, after hearing the applicant or his Advocate, either allow or dismiss the application.

(4) Where the application is granted, the applicant shall present the appeal together with a copy of the order granting the application within 30 days from the date of the order.

(5) The provisions of Orders XLI and XLIA of the Code shall apply, as far as may be, to appeals presented under this rule.

(6) The provisions of Sections 5 and 12 of the Limitation Act, 1963, shall apply to applications and appeals under this rule.

Section 100A: No further appeal in certain cases:

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge (Substituted by Act 22 of 2002 w.e.f., 01.07.2002).

2006 (4) KLT 405 (F.B.) held that Section 100A of Code of Civil Procedure bars an appeal
to a Division Bench provided under S.5(ii) of the Kerala High Court Act against a judgment of single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of the original jurisdiction by a subordinate court and that such appeals filed after 01.07.2002 are not maintainable.

2010 (4) KLT 473 (SC) declared the law on the following terms in another background: It may be noted that there seems to be some apparent contradiction in S.100A as amended in 2002. While in one part of S.100A it is stated “where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court”, in the following part it is stated “no further appeal shall lie from the judgment and decree of such Single Judge”. Thus while one part of S.100A refers to an order, which to our mind would include even an interlocutory order, the later part of the Section mentions judgment and decree. We are of the opinion that the apparent contradiction in S.100A as amended in 2002 was only due to bad drafting, and not much can be made out of it once we understand the purpose of S.100A.

https://legal-dictionary.thefreedictionary.com/obsoletetells us that “A writtenlawmayindeedbecomeobsoletewhentheobjectto whichitwasintendedto apply,or theoccasionforwhichit wasenacted,no longerexists.“ Itmustbe a verystrongcase,”saysChiefJusticeTilghman,“tojustifythecourtin deciding,thatan actstandingon thestatutebook,unrepealed,is obsoleteandinvalid.I willnotsaythatsuchcasemaynotexist-- wheretherehasbeena non-userfora greatnumberof years;where,froma changeof timesandmanners,an ancientsleepingstatutewoulddo greatmischief,if suddenlybroughtintoaction;wherea long,practiceinconsistentwithit hasprevailed,and,specially,wherefromotherandlatterstatutesit mightbe inferredthatin theapprehensionof thelegislature,theoldonewasnotin force.”

https://www.livemint.com/Opinion/wvCA3H1ilcwjn6ZCmGTHLP/India-needs-a-National-Repeal-Law-Day.html.makes interesting reading: It is a custom for the regional communities of our land to engage in fervent cleaning of their homes during culturally important occasions like the New Year, Eid, Diwali, Lohri or Onam. Building on this tradition, let us now pledge to clean the law books once a year as well, wherein the legislatures do the house cleaning! Since our “living” Constitution came into force on 26 November, it makes good sense to declare it the National Repeal Law Day. The observation of the day should encompass a convening of the lawmakers at the Centre, State Legislatures and municipalities to update, amend and annul obsolete laws and regulations.

Obsolete laws (living dead) create fertile legal thoughts, enhancing hunger of legal eagles. Please See 2016 (1) KLT 851 (SC)  Pankajakshi (Dead)Through L.Rs. and Ors. v. Chandrika.

Voila! Section 5(ii) High Court Act and Rule 43 dealing with appeals under Section 5 of the High Court Act obsolete. Should they be retained on the statute book?

Take a look around, there are other zombies lurking in law books - Including some in my beloved C.P.C. and its joint family assets!

‘Doctrine of Precedent’

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

THIS PAPER reflects the importance of judicial precedent, the product of decided cases in the determination of the law by the Judges and the value of the doctrine precedent in the administration of justice. The judicial precedent plays an active role in all judicial systems of all civilized countries of the World and it is a time-honoured dogma applied by and acted upon by the courts in the decision-making process. A ‘precedent’ is an authoritative decision well settled having a binding effect on another co-ordinate bench and inferior courts. It operates as a legal source of law, the binding force of it cannot be ignored or disregarded except in cases falling within the exceptions to the rule which rob of or devalue its authoritative force. The adherence to the rule of precedent is quintessential to ensure consistency and predictability in the judicial orders. The doctrine has been elevated to the status of Constitutional Law and received constitutional confirmation in Article 141 of the Constitution of India which mandates that law declared by the Supreme Court shall be binding on all courts within the territory of India.

Bentham calls ‘precedent’ as the ‘judge-made law’. Precedent, as a source of law, is constitutive and not abrogative in its nature. A Precedent follows law and does not amend or alter any existing law. The ‘doctrine of precedent’ has no statutory sanction and the same is based on a rule of convenience, expedience and also on public policy, which ought to be adhered to by the Courts to subserve the ends of justice. A refusal to follow a precedent or where a precedent is disregarded, it is an act of co-ordinate, not of superior, jurisdiction. The two Courts of equal authority have no power to overrule each other’s decision. Where a precedent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other. The legal antimony thus produced must be solved by the act of a higher authority, which will in due time decide between the competing precedents, formally overruling one of them and sanctioning the other as good law. The effect of disregarding a precedent is a judicial indiscipline and opposed to all principles of judicial decorum and propriety and would expose to the criticism of ‘an aberration in judicial discipline’.

In Babilonia, before the region of Hammurabi, judicial decisions acquired the importance of legislation for disposal of subsequent cases. Similarly, in China, judicial decisions have acquired legal importance. Judicial decisions are treated as law in England and America.           

Salmond on Jurisprudence (12th Edition) lays down the principles relating to the binding nature of precedent as follows:

“Judicial decisions may be distinguished as authoritative and persuasive. An authoritative precedent is one which Judges must follow whether they approve of it or not.
A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical.”   

Lord Delvin observed: Precedents keep the law predictable and so, more or less ascertainable. Lord Chancellor Hailsham summed up the English practice when he said in Cassel & Co. Ltd. v. Broome¹:

“Their lordships regard the use of precedents as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.”

The above dictum has been followed by a three-Judge Bench of the Apex Court in Surinder Singh v. Hardial Singh and Ors.² to emphasise the need to follow the decisions of the larger Bench as also decisions of coordinate Benches and giving weight to consensus of judicial opinion.

A judgment of a Court operates as precedent only for what it decides, known as ratio decidendi and not for its general or casual observations called obiter dicta. Discerning or culling out theratio decidendi of judgment is by no means a simple or easy task. In the process of answering the main issue or dealing with the core of the dispute passing observations are bound to be made by the Court, here and there. Once the central issue involved in the case is identified, the view expressed by the Court on that issue deserves to be treated as the ratio decidendi. The observations in the process of reasoning or disposal of inconsequential or subsidiary issue, fall into the category of obiter dicta.

A precedent may lose all or much of its binding force in certain circumstance. A decision ceases to be binding if a statute or statutory rule inconsistent with it, is subsequently enacted, or if is reversed or overruled by a higher court. Such decisions are called ‘abrogated decisions’. Reversal occurs when the same decision is taken on appeal and is reversed by the appellate Court. Overruling occurs when the higher court declares in another case that the precedent case was wrongly decided and so, is not to be followed. When a case is overruled in the full sense of the word, the courts become bound by the overruling case not merely to disregard the overruled case but to decide the law in the precisely opposite way.

A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation. The mere fact that the earlier court misconstrued a statute or ignored a rule of construction, is no ground for devaluing the authority of the precedent. Previous decision can be departed from if it is out of line with a binding precedent or established principles.

A precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. A court is not bound by its own previous decisions that are in conflict with one another. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later court.

U.S. Supreme Court in United Estate v.. Wong Kim Ark ³, where Gray, J., observed :-

“General expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgement in a subsequent suit when the very point is presented for decision.” I may also refer to J.W. Salmond’s Article, “The theory of judicial precedents”
in 16 LQR 376, in which he has warned the Courts against laying down principles which are not required for the due decision of a particular case, or which are wider than is necessary for this purpose, giving as the reason the fact that the prerogative of a Judge is not to make law by formulating and declaring it, but to make law by applying it, and that judicial declaration unaccompanied by judicial application is not authority.” 

The observations of the Apex Court in a three-Judge Bench decision in Punjab University, Chandigarh v. Vijay Singh Lamba⁴, is noteworthy:

“.... It is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and therefore, Judges ought to employ an intelligent technique in the use of precedents. Precedents, as observed by Lord Macmillan, should be “stepping stones and not halting places.” Birch vs. Brown, 1931 AC 605 (631). But, Justice Cardozo’s caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings.”

In the Constitution Bench decision in Minerva Mills Limited & Ors. v. Union of India⁵, it has been held that the doctrine of stare decisis is evolved from the maxim stare decisis et non quitamovere meaning “adhere to the decision and do not unsettle things which are established”, and it is a useful doctrine intended to bring about certainty and uniformity in the law. However, it cannot be regarded that the doctrine of stare decisis as a rigid and inevitable doctrine which must be applied: at the cost of justice. There may be cases where it may be necessary to rid the doctrine of its petrifying rigidity. “Stare decisis” as pointed out by Brandeis “is always a desideratum, even in these constitutional cases, but in them, it is never a command.” The Court may in an appropriate case overrule a previous decision taken by it, but that should be done only for substantial and compelling reasons. The power of review must be exercised with due care and caution and only for advancing the public well-being and not merely because it may appear that the previous decision was based on an erroneous view of the law. It is only where the perpetuation of the earlier decisions would be productive of mischief or inconvenience or would have the effect of deflecting the nation from the course which has been set by the constitution-makers or to use the words of Krisha Iyer, J. in Ambika Prasad Mishra v. State of U.P.⁶:

“Where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake or the basic direction of the nation itself is in peril of a shake up that the court would be justified in reconsidering its earlier decision and departing from it. It is fundamental that the nation’s constitution should not be kept in constant uncertainty by judicial review every now and then, because otherwise it would paralyse by perennial suspense all legislative and administrative action on vital issues. The court should not indulge in judicial destabilization of State action and a view which has been accepted for a long period of time in a series of decisions and on the face of it millions of people have acted and large numberof transactions have been effected, should not be disturbed.”

In the decision in Union of India v. Dhanwanti Devi⁷, a three-Judge Bench of the Apex Court held that

“......It is not everything said by a Judge while giving judgement that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgement based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgement. Every judgement must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgement and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgement in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgement that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arose in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.”

In Mishri Lal v. Dhierendra Nath⁸, the importance of the doctrine of stare decisis has been highlighted for the purpose of avoiding uncertainty and confusion. It has been held and observed that -

“The basic feature of law is its certainty and in the event of there being uncertainty as regards the state of law - the society would be in utter confusion, the resultant effect of which would bring about a situation of chaos - a situation which ought always to be avoided.”

In a three-Judge Bench in State of A.P. v. A.P. Jaiswal⁹, the Apex Court observed at page 761, paragraph 24.

“Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principles are based on public policy......”

In the decision in Chandra Prakash v. State of U.P.^.10,

“The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court.”

In the decision in Royal Medical Trust v. Union of India¹¹, the Apex Court has held that -

“It is well settled in law that the ratio of a decision has to be understood regard being had to its context and factual exposition. The ratiocination in an authority is basically founded on the interpretation of the statutory provision. If it is based on a particular fact or the decision of the Court is guided by specific nature of the case, it will not amount to the ratio of the judgement.”         

Significantly, the exemption/relaxation made while moulding relief in exercise of power under Article 142 of the Constitution by the Apex Court, the directions issued for the purpose of doing complete justice in any cause or matter pending before it cannot be taken as the law declared by the Supreme Court. Therefore, the relief given on special facts in exercise of the power under Article 142 of the Constitution of India cannot be treated and followed by the courts as ratio decidendi of that case. The power of the Supreme Court under Article 142 is meant to supplement the existing legal work - to do complete justice between the parties and it is conceived to meet the situation which cannot be effectively and appropriately tackled by the existing provisions of law. The inherent power under
Article 142 of the Constitution is vested with the Supreme Court alone and the power thereunder is sparingly used and orders and directions issued by the Supreme Court under Article 142 ‘to do complete justice between the parties’ cannot form a binding precedent to follow in subsequent cases.

The locus classicus observation of Lord Denning in the matter of applying ‘precedent’ is worth quoting here:

“Each case depends on its own facts and close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such case. One should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive........ Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”                                                                                 

Thus, the process of reasoning in a judgment should reflect its integrity and explain its conclusion.                

‘The Inversion Test’ is one of the well-established tests for determining whether the observations made, albeit to be construed as advisory or suggestive, are to be treated as ratio decidendi or obiter dicta. The Inversion Test was propounded by Eugene Wambaugh, a Professor at The Harvard Law School, who published a classic text book called “The Study of Cases Eugene Wambaugh”, The Study of Cases (Boston: Little, Brown, & Co., 1892) in the year 1892. The Inversion Test is used to identify the ratio decidendi in any judgement. The central idea, in the words of Professor Wambaugh, is as under:

“In order to make the test, let him first frame carefully the supposed proposition of law. Let him then inquire whether, if the Court had conceived this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also. Eugene Wambaugh, The Study of Cases (Boston: Litgtle, Brown, & Co., 1892) at pg. 17“.

‘The Inversion Test’ has been adopted, followed and applied by the Apex Court in the decision in State of Gujarat and Ors. v. Utility User’s Welfare Association and Others¹² by explaining that “In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e., to remove from the text of the judgement as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case.”

The Inversion Test provides a very useful method of ascertaining the ratio decidendi of a case.

The doctrine of precedent exposes itself to many exceptions. To quote the legal maxim: “The exception proves the rule” is apposite.

One of the exceptions to the rule of precedent is obiter dicta in a judgment of a
co-ordinate or higher court.

In the decision inDelhi Municipal Corporation v. Gurnam Kaur¹³, it has been held that :-

 “It is axiomatic that when direction or order is made by consent of the parties, the Court does not adjudicate upon the right of the parties nor lay down any principles. Quotability as ‘law’ applies to the principle of a case, its ratio decidendi. The only thing in a Judge’s decision binds as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative.” Obiter dicta means what the words literally signify, namely, statements by the way. Stated another way, obiter dictum is an observation which is either not necessary for the decision of a case or does not relate to the material facts in issue.

In the decision in Post Graduate Institute of Medical Education and Research, Chandigarh v. K.L.Narasimhan¹⁴ the question whether a smaller Bench is bound by the obiter in a judgment of the larger Bench is left open.

Yet another exception to the binding force of precedent is the concept of sub-silentio.

P.J. Fitzgerald, Professor of Law in the University of Leeds, Editor of the ‘Salmond on Jurisprudence’ 12th Edition explains the rule of sub-silentio in the following words:

“A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to the mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.”

The above concept of sub-silentio explained in Salmond on Jurisprudence has been adopted and applied in the decision in Municipal Corporation, Delhi v. Guarnam Kaur by the Apex Court and relying on the decisions inGerard v. Worth of Paris Ltd. (K)¹⁵ and the subsequent decision of the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd.¹⁶, the Apex Court held that any case decided “without argument, without reference to the crucial words of the Rule, and without any citation of authority” was not binding and would not be followed. Accordingly, it has been held that the precedents sub-silentio and without argument are of no moment. Decision passed sub silentio is at no moment and is an exception to the doctrine of precedent to avoid the conflicts of authority and to secure certainty and uniformity in the administration of justice.

A further exception to the fundamental rule of ‘precedent’ is the concept of ‘per incuriam’. The principle is often invoked for declining to follow a particular decision which had been delivered in ignorance of the statutory provisions and the earlier larger Bench decisions treating such decisions as not binding precedents. In other words, any case decided in ignorance of a rule of law binding on the Court is said to be decided per incuriam. The fact that a case was argued inadequately and the decision thereon does not qualify as one decided per incuriam. None-the-less, the unargued cases do not have full binding authority.

The concept of per incuriam had been explained in A.R. Antulay v. R.S.Nayak¹⁷ as -

“..... ‘Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.”

Identical view was expressed in the Constitution Bench Judgement of the Apex Court in Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court^18.

In the decision in State of U.P. v. Synthetics and Chemicals Ltd¹⁹ it has been held:-

“ ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to be per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority’. Young v. Bristol Aeroplane Company Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.”

The rule to adhere scrupulously to precedent has been explained in the judgment in Suganthi Suresh Kumar v. Jagadeeshan²⁰, To quote:-

“It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.”

In yet another Constitution Bench in Central Board of Dawoodi Bohra Community v. State of Maharashtra²¹, the Apex Court after examining the law laid down by the Constitutional Benches summed up the legal position in the following terms:

“(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing.

In the decision in V.Kishan Rao v. Nikhil Super Speciality Hosptial & Anr.²²the Supreme Court has held that -

 “When a judgement is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are renderedper incuriam.”

The central principle which should be borne in mind is that the courts are not to perpetuate an illegality rather it is the duty of courts to rectify mistakes. While dealing with this issue, the Court in Hotel Balaji v. State of A.P.²³ cautioned that -

12.... ‘2.... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this we derive comfort and strength from the wise and inspiring words of Justice Bronson on Pierce v. Delameter.

 “A Judge ought to be wise enough to know that he is fallible and therefore, ever ready to learn, great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors.”

In the judgment in Supreme Court Advocates-on-record Association v. Union of India²⁴,
 a Constitution Bench of the Supreme Court held that -

“The mandate of Article 141 obliges every court within the territory of India to honour the interpretation, conclusion, or meaning assigned to a provision by this Court. It would, therefore, be rightful to interpret the provisions of the Constitution relied upon by giving the provisions concerned, the meaning, understanding and exposition assigned to them on their interpretation by this Court. In the above view of the matter, it would neither be legal nor just to persist on an understanding of the provision(s) as concerned merely on the plain reading thereof as was suggested on behalf of the respondents. Even on a plain reading of Article 141, we are obligated to read the provisions of the Constitution in the manner they have been interpreted by this Court.”

In the decision inState of Assam v. Ripa Sarma²⁵, the Apex Court has reinforced the principle that judgement rendered per incuriam cannot be ennobled to the rule of precedent.

The general rule is that a court is bound by the decisions of all courts higher than itself which is called ‘the hierarchy of authority’. The above general rule is based on the principle of judicial comity to secure certainty and uniformity.

The issue whether the weight of members of judges in a Bench which decided unanimously be overruled by the decision of a subsequent larger Bench merely by reason of the strength constituting the larger Bench without regard to the number of the judges who decided the issue unanimously dissenting from the majority view of the larger bench is a vexed question. The above conundrum was paused by M.P. Lokur, J., in Supreme Court Advocates-on-Record Association v. Union of India²⁶, the Apex Court held:

“One of the more interesting aspects of Pradeep Kumar Biswas is that out of the 7 (seven) learned Judges constituting the Bench, 5 learned Judges overruled the unanimous decision of another set of 5 learned Judges in Sabhajit Tewary. Two of the learned Judges in Pradeep Kumar Biswas found that Sabhajit Tewary had been correctly decided. In other words, while a total of 7 learned Judges took a particular view on an issue of fact and law, that view was found to be incorrect by 5 learned Judges, whose decision actually holds the field today. Is the weight of numbers irrelevant? Is it that only the numbers in a subsequent Bench are what really matters? What would have been the position if only 4 learned Judges in Pradeep Kumar Biswas had decided to overrule Sabhajit Tewary while the remaining 3 learned Judges found no error in that decision? Would a decision rendered unanimously by a Bench of 5 learned Judges stand overruled by the decision of 4 learned Judges in a subsequent Bench of 7 learned Judges? Pradeep Kumar Biswas presents a rather anomalous situation which needs to be addressed by appropriate rules of procedure. If this anomaly is perpetuated then the unanimous decision of 9 learned Judges in Third Judges case can be overruled (as sought by the learned Attorney General) by 6 learned Judges in a Bench of 11 learned Judges, with 5 of them taking a different view, bringing the total tally of Judges having one view to 14 and having another view to 6, with the view of the 6 learned Judges being taken as the law!”

 The Apex Court in the recent judgement in Shanti Fragrances v. Union of India²⁷, posed the question whether, after Union of India v. Reghubir Singh²⁸, it can be stated that Judges of this Court do not sit in 2s and 3s for mere convenience, but that a Bench which is numerically superior will prevail over a Bench of lesser strength. If the ‘doctrine of precedent’, as applied by this court, is to be a matter of numbers, then, interestingly enough, as has been held by Beaumond, C.J., in Ningappa Ramappa Kurbar v. Emperor²⁹,
the position of law could be as under:

“.... The Court in that case consisted of five Judges, one of whom, Shah, J., dissented from that proposition. The authority of the case may be open to question, since there had been a previous decision of a Full Bench of this Court of four Judges in Queen Empress v. Mugappa Bin Ningapa which had reached a different conclusion. Apparently, it was considered that five Judges, by a majority of four to one, could overrule a unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed over the opinion of five Judges of co-ordinate jurisdiction. There seems to be very little authority on the powers and constitution of a Full Bench. There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench, merely because the later Bench consists of more Judges than the earlier. If that were the rule, it would mean that a Bench of seven Judges, by a majority of four to three, could overrule a unanimous decision of a Bench of six Judges, though all the Judges were of co-ordinate jurisdiction.”

Accordingly, the Hon’ble Chief Justice is requested to constitute an appropriate Bench in order to decide as to whether the Kothari Products Line or the Agra Belting Works Line is correct in law, and also to lay down, as a matter of law, as to whether and to what extent the propositions contained in Ningappa Ramappa Kurbar, Lokur, J.’s observation in Supreme Court Advocates-on-Record Association and Harper ³⁰ judgement of the Court of Appeal in the UK should guide us for the future.

Article 141 empowers the Supreme Court to declare law and the declaration made by the Supreme Court is binding on all courts within the territory of India. Article 141 has a tone of inexorable command to follow the precedent if it is absolutely binding and indistinguishable. Therefore, the law declared by the Supreme Court should be extended and applied to all other identical situations, factual and legal with all its rigor.

Article 141 of the Constitution does not contain a restraint clause limiting the power of the Supreme Court to review its own decisions. In the seven-judge Bench decision of the Supreme Court in Kesav Mills Co. Ltd, Petlad v. The Commissioner of Income Tax, Bombay North³¹ it has been held that

“When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the Country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case, it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revisiting its earlier decisions. It would always depend upon several relevant considerations. What is the nature of infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspect of the question remain untouched, or was the attention of the court not drawn to any relevant and material statutory provision, or was any previous decision of this court bearing on the point not noticed? Is the court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on the subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned judges of this Court.”

In view of the above authoritative pronouncement rendered by seven-judge Bench decision of the Supreme Court, the principle of doctrine of precedent/the principle of stare decisis cannot be pressed into service in cases where the jurisdiction of the Supreme Court to reconsider and revise its earlier decisions is involved; but nevertheless, the normal principle that judgments pronounced by the Supreme Court would be final, cannot be ignored, and unless considerations of a substantial and compelling character make it necessary to do so, the Supreme Court would be reluctant to review and revise its earlier decisions.                  

Be that as it may, the practice of bestowing ‘undue servitude to the bondage of precedents’ has been deprecated by the Apex Court in Gur Charan Singh v. State of Punjab³². In the judgement in Mumbai Kamgar Sabha v. M/s. Abdulbhai Faizullabhi³³, Krishna Iyer, J., for the Bench delivered the judgement cautioning that -

“It is trite, going by Anglophonic principles, that ruling of a superior court is binding law. It is not a scriptural sanctity but is of ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milie we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prison-house of bigotry, regardless of varying circumstances and myriad developments. Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of subordinate Court’s casual observations, generalisations and sub-silentio determinations must be judiciously read by courts of co-ordinate jurisdiction . . . . . .”

Therefore, conscious recognition of the element of evaluative choice of ratio decidendi must necessarily be carried out in the process of decision-making and the ‘doctrine of precedent’ cannot be disregarded or turned down showing unwarranted casualness, the result of which would lead to utter chaos and lawlessness shattering the confidence of the litigating public and dependability on the judicial system.

The imperative note in Article 141 of the Constitution of India is a constitutional call to abide the law declared by the Supreme Court by all Courts which is a recognition of the hierarchy of authority and in a way, acceptance of the ‘rule of precedent’. The ‘rule of precedent’ has acquired the status of inviolable article of the code of conduct to be observed by all Judges in the country. Judicial discipline obligates the courts to follow an authoritative judicial precedent adopting a ‘principled approach’ to issues involved in a case. The ‘rule of precedent’ become accepted as the basic rule of our legal system, the adherence to which is the judicial responsibility in the system of justice. The credibility in the functioning of justice delivery system depends upon the strict adherence to the ‘precedent’. The Judiciary, as a public institution, must meet the test of confidence, reliability and dependability, which is an essential attribute of ‘rule of law’ and then, it will certainly build a solemn atmosphere in the dispensation of justice.

Foot Notes:

A Very Interesting Ruling of SC on Section 43 of the Transfer of
Property Act, 1882 read with Code of Civil Procedure, 1908

(By C.S.Raghu Raman, Professor, Law Faculty, Bangalore)

Lord Justices R.C. Lahoti and Brijesh Kumar gave their ruling¹on the following facts.

Mr. Rameshwar Singh, had a son, Mr. Mahendra Singh through his first wife Mrs. Ram Sakhi and has another son, Suresh Prasad, from his second wife, Mrs. Dhaneshwari Devi.

While Dilip, Pradeep, Rajesh, and Rakesh are sons of Mahendra Singh, Ranjan and Rajkumar are sons of Suresh Prasad through his wife, Renu Devi, Plaintiffs-Appellant.

A suit for partition was filed by Suresh Prasad and his two sons, (referred to as ‘Group-1’ )
against Rameshwar Singh and Dhaneshwari Devi, Defendants 1 and 2 (‘Group-2’) and Mahendra Singh, Dilip, Pradeep, Rajesh and Rakesh as defendants 3 to 7 (‘Group-3’).

The final decree, given in the above suit on compromise, later engrossed and drawn up on stamp paper on 24.5.1979²was nothing but just a reproduction of the preliminary decree dated 13.2.1978.³

Subsequently, Group-2, on the strength of the final decree, executed a registered gift dated 22.3.1979 of a House allotted to them to Mrs. Renu Devi.

Thereafter, Trial Court and the first appellate courts dismissed three suits.⁴

The High Court on 23.6.98, allowed second appeals by Group-3, setting aside First Appellate Courts decisions, on sole reason that ‘since Rameshwar Singh and Dhaneshwari Devi acquired their separate title in the joint property only on 24.5.1979 when the final decree was engrossed on stamp paper, they were legally incompetent to gift their property by the gift deed dated 22.3.1979 so as to transfer title to the donees.’

The SC held that since Dilip’s appeal⁵has been dismissed and has not pursued further to challenge partition decree itself, it has become final and is not open to question.

Therefore, Renu Devi was automatically been successful⁶in obtaining possession and title under the compromise decree dated 24. 5.1979 read with gift dated 22.3.1979 on eviction of Group-3 from the house.

It is clear that “Renu Devi’s right to acquire title to property under the gift deed depends on which date, 13.2.1978 or 24.5.1979, the donors had acquired right to transfer the property.”

In SC, Lord Justices R.C Lahoti and Brijesh Kumar, after examining the distinction between preliminary and final decree, held that “for all practical purposes the decree dated 13.2.1978 was a final decree as no further inquiry is required since under Order XX Rule 18
of the C.P.C. “it is not necessary to pass a preliminary decree” when all groups completely settled the matter since that ‘in partition suits there is nothing in law which prevents the Court from passing a final decree in the very first instance in above circumstances. Often such are the cases which are based on compromise. The present one is such a case.’

In coming to their decision The SC completely accepted the position of law laid down by the Patna High Court,⁷supported by two earlier decisions of Oudh Chief Court⁸and Madras High Court. ⁹

The gist of the ruling of Lord Justices Pande and Sinha in Raghubir Sahu is that when the shares in properties allotted to each party were clearly specified in schedules on compromise, the decree passed becomes the final decree in the suit but not a preliminary decree.

Very significantly said that Lord Justices Pande and Sinha ‘this final decree was to be engrossed on a stamped paper under Article 45, Stamp Act, 1889, though no time limit prescribed by the statute, giving date of the decree, 17th December, 1921, mere engrossment on stamped paper will not in any way affect the interest of the parties in respect of the properties though, changes may have taken place in regard to the properties since the decree was made on 17th December, 1921. The only effect of engrossment of the decree on stamped paper would be that it will be rendered legally effective which it is not until so engrossed.”           (emphasis supplied)¹⁰

Then in an interesting new development, Lord Justices R.C Lahoti and Brijesh Kumar applied “the principle of the feeding the grant by estoppel” in Section 43 of the Transfer of Property Act giving more legal force” to the right Renu Devi to deed as valid.

Declaring that S 43 of The T.P. Act, 1882 in fact does not apply in this case since the gift deed dated 22.3.1979 is ‘not a transfer for consideration,’ yet Lord Justices R.C Lahoti and Brijesh Kumar, after observing that “Section 43 was only illustrative having statutory recognition in India derived from the principle of equity,¹¹declared that ‘on the subsequent acquisition of title by donors under the final decree dated 24.5.1979,’ the property shall ensure to ‘the benefit of the donee’ with whatever infirmity, though they found none, in the title was cured on that date.’

The SC further clarified that “the doctrine may not apply if the deed of transfer itself was invalid or if the third party has acquired title bona fide, for consideration and without notice, but deed of gift dated 22.3.1979 has no illegality or invalidity. The rule of estoppel by deed would clearly apply. The decree dated 24.5.1979 engrossed on requisite stamp papers would in the facts and circumstances of the case, relate back to the date 13.2.1978.¹²

Renu Devi was also successful when First Appellate Court decisions are restored.

In his concluding remarks the author humbly expresses his opinion that “there is no necessity to apply S.43 of The T.P.Act, 1882 unless Lord Justices R.C Lahoti and Brijesh Kumar have some doubts on the date of coming into force of decree in partition in view of provisions of Stamp Act and also in not supporting contrary opinion of High Court.

Further, when Lord Justices R.C. Lahoti and Brijesh Kumar completely “accepted that Patna High Court and other Courts laid down the correct law” that ‘engrossment of the decree on stamp paper is serious issue, not merely a formality,’ then without engrossment of the decree on stamp paper, the donee does not acquire perfect rights to the land from the donor having no rights over the land.

But quoting and approving Renu Devi, The 3 Judge Bench in Dr.Chinrajit Lal held that for the purpose of execution of the decree in a partition suit, the period of limitation prescribed in Art.136 of the Limitation Act, 1963 ‘begins to run from date of passing of decree” and “the date of engrossment of decree on stamp paper is totally irrelevant.”

Since the final decree is nothing but exact replica of preliminary decree, passed on compromise among all the groups as to allotment of properties, the ruling in Renu Devi
can be supported that for purpose of Art.136 of the Limitation Act, 1963, the date of engrossment of the decree is completely ignored.

It is to be carefully noted that Renu Devi is not at all concerned, directly or indirectly, with the issue of execution proceedings since on ‘both facts as well as on legal issues, there is sea of difference between Renu and Dr.Chinrajitlal.

In fact it clearly appears that Lord Justices R.C. Lahoti and Brijesh Kumar took assistance from T.P. Act when they had some serious doubts as to date on which the donor had acquired rights to the land in view of two decrees having two different dates.

What could have been the ruling of Lord Justices R.C. Lahoti and Brijesh Kumar had ‘there been no compromise among all the groups and final decree is completely different from preliminary decree,’ is purely speculative question.

Therefore, as the legal position as of today, irrespective of engrossment of decree or not on stamp paper deliberately or innocently by decree holder, executing court has no powers to stall the execution proceedings.

Let us hope that SC may have further opportunity to bring clarity to this matter.

Foot Notes:

Dissenting Note on “Aju Varghese v. State of Kerala”,
Reported in 2019 (1) KLT 643

(By Sajeer H., Section Officer, Law Department, Govt.Secretariat,Thiruvananthapuram)

Quashing of F.I.R. may lead to uproot the entire prosecution story. If an interpretation leads to dilute the rigidity of any penal provisions, it becomes a precedent and its violations will continue without any hurdle. On going through Section 228A in its entirety, one can see that its construction is intented to give predominant consideration for the well being of the victims who suffered physical and mental injuries from the merciless males and sheltered them from further abuse.

The factual matrix of the title case was that the petitioner Aju Varghese is an artist in the Malayalam film industry. The victim therein is a well known cine actress in the same industry. Prosecution story was that on February 2017, while the victim was proceeding to Ernakulam in her car, she was sexually assaulted by a group of persons in the vehicle, which led to the registration of Crime No.297 of 2017 of the Nedumbassery Police Station for offences punishable under Sections 342, 366, 376, 506(i), 120(b) r/w 34 of the Indian Penal Code and 66E and 67A of I.T. Act. The petitioner posted a comment in his facebook account, inter alia,deprecating the act towards the actress and commenting that, it was a heinous act. He had disclosed the name of the victim in the above post. According to the petitioner, immediately on getting information that disclosing the identity of the victim was against the law, he immediately tendered an apology through his facebook and removed her name from the post. He tendered an apology to the victim also. In the meanwhile, the de factocomplainant therein, who allegedly had occasion to see the facebook post, filed a complaint before the Kalamassery Police Station alleging commission of offence punishable under Section 228A of the I.P.C. It led to the registration of a crime. After investigation, final report was laid and the same was pending as C.C.No.1297 of 2017, before the Judicial First Class Magistrate Court, Kalamassery.

Against the final report the petitioner has approached the Honourable High Court by contending that, he was not well versed with law and being an ordinary human being, who succumbs to human frailties, and in his anxiety to support his associate, had inadvertently mentioned the victim’s name. He also claimed that he had immediately removed her name from the facebook and also apologized to the victim, who gracefully accepted it. While proceeding the case in the Honourable High Court, the victim has sworn an affidavit and produced it in court by affirming that the petitioner was her associate, had been a good friend of her over a long period of time and without any mala fideintention, he had published her name in the official facebook. She has stated that, she has no objection in quashing the criminal proceedings in Crime No.1385 of 2017 of Kalamassery Police Station resulting in final report and the proceedings in C.C.No.1297 of 2017.

The Honourable High Court held that, though the rigour under Section 228A I.P.C. is strict and based on the predominant social reasons and it has to apply with all its rigour in all cases, but, wherein, the victim has condoned an act of disclosure of identity, it is a fit case, which Section 482 Cr P. C. can be invoked appropriately.

Going through the case, it is seen that two defences had been taken by the petitioner for praying the benefit of Section 482 Cr. P.C. First one is that the ignorance of law (According to the petitioner “not well versed with the law”) and the second one is the authorisation obtained from the victim after committing the act. On examining the defences one by one, in the light of the relevant facts, one can see that Section 228 A was not properly cooked in the case and quashing of F.I.R. ought to have been avoided.

There are two relevant maxims, which are to be considered in this regard. Such maxims are Ignorantia juris non excusator Ignorantia legis neminem excusat. The meaning of the first maxim is that “ignorance of the law excuses not” and other is “ignorance of law excuses no one”. It is the legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because of its ignorance. If anyone asks for a benefit, he has to prove that he has no guilty intention and guilty mind while committing the offence. Here the prosecution is bound to prove the fact that the accused has such criminal mind or guilty intention for committing the offence.

On a torch expedition of the case in hand, it is seen that the petitioner uploaded comment by denoting the name of the victim in his facebook. While uploading the same he knows that the face book post may be seen by a large number of people and they could easily identify the name of the victim. Why because, the victim is a well known artist in the film industry. The act of the petitioner may thereby cause injury to the victim as defined in Section 44 of I.P.C.

Section 44 of the I.P.C. says injury means any harm whatever illegally used to any person in body, mind, reputation or property. It becomes clear that the consequences of harmful conduct may not only cause bodily harm to another person but it may cause harm to his mind or to his property or to his reputation etc. That mental scar happened to the victim may come under the purview of injury, if the act may be intentional or negligent.

Publishing the name of the victim against the rigour of Section 228A, shall not be treated as liberal. The verdict of individual cases may lead negative impact to the society at large. The defence of “ignorance of law” or “not well versed with law” cannot be taken into
account in such a serious crime. His claim that he was unaware about the fact, that the disclosure of identity of the victim is offensive in India cannot be treated as tenable. At the time of uploading the name of the victim on his face book post, the petitioner ought to have been well aware that the name of the victim was not even been cited by any news paper or social media, which reported the case at the relevant time, because of the bar in
disclosing it.

It is the cardinal principle of law that a crime is not committed if the mind of the person doing the act in question be innocent. Traditional maxim in this regard is that Actus non facit reuas nisi mensit reaus,which means a person cannot be convicted and punished in a proceedings of a criminal nature unless it can be shown that he had a guilty mind. The uploading of name of the victim in the social media definitely come under the purview of rash and negligent act (if it considers the plea of the petitioner). The term mens reaincludes intentionally, voluntarily, dishonestly, fraudulently, wantonly, malignantly, rashly and negligently. The basic requirement of the principle of mens reais that the accused must have been aware of those elements in his act, which make the crime, with which he is charged.

While going through Section 228A, it can be seen that the clog attributed in it is that the revealing of identity of the victim to public is punitive. In Bupinder Sarma v. State of Himachal Pradeshthe Honourable Supreme Court held that, (of revealing the name of victim) the physical scar may heal up but the mental scar will always remain. When a woman is ravished what is inflicted is not merely physical injury, but the deep sense of some deathless shame upon her, her family and the whole society around her.

In the instant case the petitioner (if he pleads innocence) ought to have expressed his allegiance to the victim either over phone or visit directly to her home. But instead, he expressed the same through social media with the aim of getting popularity for his act. That act tantamount to the guilty mind of the petitioner and so he cannot be wiped out from the clutches of Section 228A I.P.C. So the defence of ignorance of law and innocence of act cannot be taken into account as a defence in the present case.

Secondly, the petitioner herein says that the victim gave him an authorisation stating that the act of the petitioner does not amount to hurt her and so she has no objection for allowing the application of the petitioner. The petitioner claimed it as a defence under Section 228A(2)(b) of Cr. P.C. Really Section 228A is a preventive and protective umbrella towards the victims and giving a shelter for them from stalking.

Now let us look into what Section 228A says, it reads that “Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is, by, or with the authorisation in writing of, the victim; on a plain reading of it, it can be seen that the authorisation is to be obtained prior to the disclosure of identity of the victim and not later”. Once an offence is committed its subsequent ratification cannot be possible in criminal law. A crime is set into motion at the time of its occurrence and not later. Because Section 228A IPC has prospective operation and not retrospective. The ex post factoauthorisation ought not to have been considered at any point of time by the court of law. It can be considered as a novus act, wherein the petitioner produced authorisation of the victim before the court of law while moving the petition.

Section 228 A itself is a powerful weapon and its fields are fenced with it its rigour. If the court of law interprets it liberally or any dilution is made, then the wrongs will continue in the society. If the case law becomes a precedent, it will lead to exode of petitions in the similar nature for seeking same relief.