Article 141 of the Constitution — A challenge to Judicial Intellect

(P.V. Aiyappan, Advocate, Ernakulam)

Article 141 of the Constitution reads "The law declared by the Supreme Court shall be binding on all courts within the territory of India". This article remains static in the Constitution without undergoing any amendment by Parliament even though the Constitution has undergone about 43 amendments. The parliamentarians are not very much concerned about the deleterious effect of that Article on the "judicial intellect". Nowadays the judges of the High Courts and lower courts, do not get any opportunity to apply their wisdom or make an intelligent approach of their own to any legal problem arising in a cause because half a dozen Supreme Court rulings on the point is used to gag the judges, and the Lawyers point their finger to Article 141 and say that you should follow them though you might have your own views, thereby putting the free thinking capacity of the judges or the exercise of their intelligence to a given problem in iron shackles, with the result, "judicial intellect" gradually vains by "non user atrope". Article 141 thus remains a challenge to judicial intellect and my endeavour in this note is to stress the necessity of an early deletion of this Article from the Constitution.

2. Our Constitution envisages and our politicians proclaim an "Independent Judiciary" by which term, we mean "independent" of everything, not only confined to independent from Executive pressure or influence. Judiciary should be independent of everything. I think Article 141, as it now stands, takes away the most fundamental elements of independence namely "freedom of thinking and free expression of one's own views". If article 141 imposes a duty to follow the declaration of the law by the Supreme Court, whether good, bad or indifferent, is to my mind, make the judiciary more servile than independent. If judiciary cannot think and express independently, it cries halt to the progressive evolution of law and legal principles, at the hands of the judges, for in progressive countries like England, revolutionary changes in casting the legal principles of far-reaching consequences were made by judge made law and the legislature has to step in either to perpetuate it or to annihilate it. by statutory legislation. But if our judges’ thoughts and expressions are controlled and shackled by Article 141, the country has to suffer because of the denial of fair opportunity to intelligent and well-equipped judges of expressing their progressive views or construction of social legislations and such other revolutionary enactments. The binding declarations of law by Supreme Court are very often ephemeral. Two judges may declare the same law in a different way and vice versa, thus placing the judges of the lower judiciary in a fiasco, because they have to choose between the two divergent declarations on the same subject. The Supreme Court itself was driven to the necessity of solving this problem by making a further declaration that the binding nature will depend upon the number of judges. AIR. 1976 Supreme Court 2547, State of Uttar Pradesh v. Ram Chandra which is a judgment rendered by three judges, held "Even in cases where a High Court finds any conflict between the views expressed by the larger and smaller Benches of this court, it cannot disregard or skirt the views expressed by the larger Bench. The proper course for a High Court in such a case, is to try to find out and follow the opinion expressed by the larger Benches of the Supreme Court in preference to those expressed by smaller Benches of the court, which practice, hardened as it has into a rule of Law, if followed by the Supreme Court itself". The law declared by the Supreme Court, in the above decision is being followed by ail the High Courts by counting the number of judges who are parties to a judgment to determine the binding nature. But I have not seen any directions to the lower judiciary as to which of the declaration is binding when the judges are equal in number in two conflicting decisions. Just to illustrate, two learned judges of the Supreme Court declared the law relating to "Promissory estoppel" in M.P. Sugar Mills v. State of U.P. (1979 SC. 621). While another bench of two judges of the Supreme Court took a different view in Jit Ram Shivkumar and others v. State of Haryana (1980 SC. 1285) and in para 39 of the judgment, the principle of Promissary Estoppel is enumerated. In that situation the lower court should follow the latest.

3. Why not the judges of the High Court and lower courts be left to decide question of law according to the best of their lights and in the light of other decisions of Supreme Court and other High Courts unhampered by the binding declaration of the Supreme Court? The pages of the recent law reports will bear ample testimony for the growing tendency for the judges to rely upon one or other judgments of the Supreme Court or in its absence, of any other High Courts and follow them and decide the case from thus borrowed intelligence and without exercising their own intellect in the matter. Even some judges do not appear to have assimilated the "ratio decidendi" of the rulings, thus betraying their utter dependency on other man's intelligence, knowledge and views. This forced dependency on the judgment of higher courts will certainly make the judicial intellect moribund and inactive. The activism in judgment will come to an end and judicial work will be rendered mechanical. So long as the highest echleons in the heirarchy of judiciary are functioning in the present judicial administration, all decisions of the lower judiciary are open to review and revision by them, and they are free to affirm or destroy the views of lower judiciary, but to say that our declaration of law is compulsorily binding on the lower judiciary, will certainly be a challenge to judicial intellect, with which almost every judge is credited and thus retard the development of their intelligence by non-exercise. Hence the need for early deletion of Article 141 of the Constitution. The suffocation, felt by some judges about this article is given vent in some judgments. Acting Chief Justice of the Sikkim High Court has gone to the extent of saying that "a decision is an authority for what it actually decides and not an authority for what logically follows from the observations made therein. I should say that nothing pre­vents me from choosing to be bound by such logical conclusions; whether they are binding authorities or not". (Vide 1980 Cr. L.J. 115 State of Sikkim v. Futi Sherpani). The above observation of the learned Judge betrays the strong feelings of right thinking judges of the Criminal restraint imposed upon them by Article 141. I am of the view that the law as a developing science, should be allowed to develop at the hands of judges endowed with immense intellect and independent thinking and there is no reason why they should be held in fetters.

4. Closely associated and allied to the above, is the premature deprivation of mature brains from the judiciary by the artificial retirement age of judges by the mandates of Articles 217 and 124(2) that the High Court Judges should retire from service at the age of 62 and the Supreme Court judges should retire at the age of 65. Experience proclaims that a judge attains some maturity of intellect and legal learning only when they reach the age of 60 and above. The wisdom of the judges, as old wine, requires maturing and at a time when their wisdom matures, they have to bid farewell to the law by the operation of Article 217 and 124(2) of the Constitution the rationale behind these two articles is very difficult to decipher. It is arbitrary, besides being artificial. If this is designed to give opportunities to the new entrants, this artificial age superannuation does more harm than good. Is there any rational basis in fixing the retirement age of High Court judges as 62 and that of the Supreme Court judges as 65? It is only at that age, many of them get the required maturity of thought and full development of their "legal wisdom". "Wisdom" says Justice Mathew in 1973 SC. 804," as good wine, requires maturing". In spite of this authoritative pronouncement of the Supreme Court, our judges are to retire before maturity of their "wisdom". Articles 124 (2) and 217 of the Constitution are prima facie unreasonable, arbitrary and artificial and hence scrapping is a necessity. Judges who are not senile an3 whose judicial intellect and ability remain unaffected and unimpaired by the impact of age, should be allowed to continue till they get mentally and physically infirm and their judging capacity is impaired. Lord Denning is an octogenarian, yet he is a bencher in the three Inns of England. His judgments are inimittable in his old age and by the operation of the two artificial articles of retirement, in contrast to the laws of retirement of judges in European countries, legal brains of India are being prematurely buried. Instead of these two articles, some other articles are to be introduced enabling the President of India to demand retirement of a judge when a medical council declares him as senile and unfit or the Chief Justice of the Supreme Court recommends that he is so unfit to be a judge, in his judgment, based on objective review of the performance of the said judge.

5. This necessarily leads to the necessity of establishment of an "All India Judicial Service" in par with all India Civil Service, where no consideration whatsoever as religion, caste, creed or colour should be a criterion for recuritment of members of the judiciary. Merit and ability and "Wisdom in Abundence" should alone be the criterion. Those who shine with outstanding merit, ability, and equipment in the legal profession could only aspire to occupy the Highest seat in the citadel of justice. If the present system is allowed to continue, a large portion of law reports could be spared because there will hardly be any case worth reporting and reading. Years back when an eminent lawyer cited 5 Moors Indian Appeals in the erstwhile Cochin High Court, one of the learned judges asked him "why do you cite this old ruling when you have got recent rulings of Indian High Courts?" Off came the reply, "my Lords, I cite this ruling because it contains wisdom". The retort at once came from the judge "Do you mean to say that our judgments do not contain Wisdom" The surpassingly intelligent lawyer very humbly and meekly replied, "I do not generally refute the court". You can very well imagine the reaction of the judges who heard the reply but the astute lawyer continued his argument as if nothing transpired.

6. It is lamentable that Indian Judiciary has not reached the standard of its European counterpart and it is high time to probe into the root cause for this low standard. The above provisions in the Constitution relating to the judicial set up, stood the test of thirty long years and if the attainment of perfection has become a remote dream, I appeal to the Law Minister of India to introduce a bill in Parliament to amend the said articles with a view to achieve the best judicial intellect reflected in the judicial pronouncements and make the judiciary independent in its own judgments.

Statistics In Court

(T.M. Abdullah, Advocate, Tellicherry)

DISREILI ranked statistics on top of 'damn lies'. It may be an angry over-rating; but it is in good company in court with a herd of lies that enter the portals to test being cast away by the mill. The search after truth belongs to the noblest of human activities. With the search enters the court the passion for statistics. This deity has votaries in all departments and branches of organised efforts. The votaries worship the deity with periodical offerings of 'returns'. The deity keeps the count of numbers and no measure of quality. How many is the question and not how well.

In a court of law statistics plays a vital part for the Judge. He has to be its devotee to be hippy. His chanting 'manthram' is 'Disposals to keep pace with filings.' If he achieves this object, he has no more worry. If not, he gets a case of irritating piles on his file.

What SATAN was to ADAM is adjournments to disposals here is a clash of interests. The judge's cleverness consists of overcoming the bar adjournments and avoiding the bench adjournments.

Statistics or 'statestricks'? The latter seems apter. After an election defeat the spokesman of the defeated party quotes statistics to explain the defeat as a success. It is jocularly said, not seriously, that a court sometimes disposes a case four times to satisfy statistics: first, a dismissal for default; second, a decree ex-parte; third, a disposal en a preliminary point and fourth, the disposal on merits. At the end of a month and more particularly of a quarter-year the filing glides over to next month. The office sees to it by returns on real and quasi-real grounds, "Pltf's age not given. Returned. Time one week" is met by "Pltf is a limited company. Represented." "Correct words to be used. Returned. Time 10 days" is that the expression 'this hon'ble court' became 'this horrible court' or the word "coercion' happened to be 'coerection'. By such microscopic check the filing goes to the next month's account. All the same statistics stares.

At the end of the quarter the young ones are caught and offered to the deity; in the bargain the aged ones escape to a longer life. However, the deity is not satisfied with such soft stuff; it relishes the hard fibrous flesh of the aged ones. This adds poignancy to the problem. For, it is not easy to get old hydra-headed refractory ones. By measure a few of them will be fulsome labour surpassing many more young ones, but by count they make poor turn-over. There is another dimension to the worship, namely, it does not look well in the eye of the deity if disposals in a quarter are less than in the previous quarter. So to guard against such calamity a progression in the number of disposals from quarter to quarter is to be aimed, but the aim often misses. The result is that statistics become pathogenetics to the judge.

The Bar is atheistic. It has no deity to worship, no superiors to oversee, no masters to please, no count of numbers to keep, no returns to make, no explanations to offer. If the Bar should have statistics, it must be in the reverse gear as to how few adjournments one has taken. There will be a CAT-Champion Adjournment Taker in a court. The judge "recognises him before long. A District Judge once pointed out file-wide slits in the wire-mesh of a record room window and called them 'rat-holes'. The cat reminds of the rat.

With so much discredits there seems no alternative metnod of measuring performance in any job. That is why statistics cling to life.

BORDER LAND OF DOUBT

(M. Marcus, Advocate, Kottayam)

The law relating to drunkenness touching criminal liability has undergone a metamorphosis of characteristic feature. Drunkenness was judged a dirty stain upon morality and in that light the drunk accused was liable to enhanced punishment in olden days for the crime he might have committed in the state of intoxication. With the progress of time and better understanding of human mind the law relating to criminal liability for acts done under intoxication have been separated from the meshes of the tangled web of morality, Now drunkenness is not deemed to aggravate the offence committed but its effect upon the cognitive faculty of the accused is the subject of interest to law.

Ss. 85 and 86 of the IPC. say that involuntary drunkenness is an excuse forthe crime committed if the accused at the time of the commission of the crime was not in a position to appreciate the criminality of his act by reason of intoxication but the proviso to the section sternly prohibits such criminal acts in case ofvoluntary drunkenness. The effect of the proviso is that a voluntary drunkard is deemed to be capable to keep fresh his criminal designs even when his brain is entirely under the grip of the bane of the draught. It appears from the reading of the proviso that the law fails to detect the snapping of the cords of Mens Rea when due to hard drinking Delirium Tremens sets in.

It is true both legal and Medical scholars have expressed their firm belief regarding the impact of Delirium Tremens in a drunken man, and they are quick to say that Delirium Tremens is a state of insanity produced by drunkenness and that it should relieve a drunken person from criminal responsibility for acts done even though the drinking was voluntary. It will be advantagous to refer to Halsbury's Laws of England Vol. IX dealing with "Courts, Criminal law and Procedure" wherein reference is made to E. W. Cox criminal law cases 6-463 pointing the case of a person who killed another in a drunken sleep but who was held not responsible. Professor Kenny in his "Outlines of Criminal Law" touching the "full exemptive effect" of intoxication asks "why there should be retained any idea that because a man has voluntarily indulged in intoxicating liquor he should be held fully liable for any consequences which may follow, without regard to the question of his mental ability when under the influence of the alcohol which he has consumed". This question of Prof. Kenny seems to offer a challenge to the proviso under consideration.

Coming to the medico-legal aspect of Delerium Tremens produced by drunkenness we find the problem in a still more baffling proportion. Scholars in Forensic Medicine in one brow of thought agree that Delerium Tremens due to drunkenness create fearsome delusions causing the person labouring under it to inflict injuries in the spirit of self defence. Dr. Lyon and Waddel in their "Medical Jurispurdence for India" on page 537 opine "Legally, DeIerium Tremens is unsoundness of mind, not intoxication". Dr. J. D. B. Gribble and Patrick Hehir in their "Outlines of Medical Jurispurdence for India", 3rd edition P. 372-373 dealing with drunkenness observe commenting on the relevant section in Indian Penal Code "It is however impossible that the law as laid down can be carried out to the letter". Collins Barry in his "Legal Medicine" Vol. II chapter XXXVcites the case R. v. Chaplain (Warrwick Assizes Nov 1878) leading to acquittal due to Delerium Tremens.

The unfortunate fact is that we have no data indicating as to when exactly Delerium Tremens starts and its paroxysams end John Glaister in his "Medical Jurisprudence and Toxicology "observes" while it is common to describe several definite stages of intoxication there is really no sharp demarcation of these stages and the rate of transition from one to another is inconstant". This is really a source of much doubt to the judge who is to put the penal law in motion against the voluntary drunkard with reference to the culprit's culpable mind. It is a lamentable stale that medical authority is equally doubtstricken on this point.

The drunken accused is not always arrested when he is under the clutches of Delirium Tremens so much so the question as to whether at the time when he did the alleged criminal acts, he was labouring under pangs of Delirium Tremens or not, we have no sure ground to judge. In this set up if we relentlessly utilize the proviso to Ss. 85 & 86 IPC. it may not be improbable that we miss the guilty deeds and punish mere convulsions.

Again the fate of the drunken accused after conviction is different from the insane accused who is acquitted on the ground of insanity. Sec. 471 Cr. PC. hands the latter to the safe custody awaiting order of the Government while the voluntary drunkard after conviction is packed to the criminal jail without sufficientinvestigations during trial touching Delirium Tremens which might have motivated his deeds, which is a border land of doubt. It is worth noting that Barbara Woottan a distinguished English jurist observes in "Crime and Criminal Law" (Hamlyn series) that "after drink insanity" is problem not satisfactorily decided as yet.

It is hoped that our law on drunkenness should be recast to enable the treatability of the drunken criminals with a view to restoring them to normal life than to incarcerate them so that we can claim the benefits of moden development in criminology. 

An Episode In Fiction

(T.M. Abdullah, Advocate, Tellicherry)

Mr. 'X' as an Assistant Sessions Judge passed some strictures on the Police in a criminal case. Mr. 'Y’ was a Dy. S. P. at that time and the strictures reflected on him. In the British days judicial strictures were taken serious notice of; the concerned individual was called upon for explanations and they played a part at promotion time. Nowadays strictures are glided over on party level and lost fright. That apart, Mr. 'X' is now a District Judge and Mr. 'Y' a Superintendent of Police in charge of vigilance. A cheque application of a handsome amount did not see light of the day for 2 months. The clerk was seen and the cheque ordered, issued and cash received in 2 days time. A pseudonomous letter reached the vigilance and the officer got a camping chance. Mr. 'Y' is camping at the Inspection Bungalow with Police dignities. Mr. 'X' is summoned to appear before him on Monday at 10.45 A.M. in connection with the enquiry into the complaint of corruption against the clerk. Time 11 o' clock passed; 11.15, 11.30, 11.45, the seat of justice is vacant; the learned brothers of the bar in robes are in waiting in muffled silence; the litigants, witnesses, vakil clerks and touts are looking askance; no sign of filling the vacuum on the dais. At the other end his honour is sitting in the hall of the Inspection Bungalow with commoners waiting for his turn of being called in by the Police officer for interrogation as a part of investigation. After 45 minutes of waiting his questioning was over in 5 minutes. It is not so much of what the District Judge was to enlighten him that mattered to the vigilance officer as to make the judge seated in the common hall outside waiting to be ushered into his presence. The District Judge for once had to submit to the investigating officer's jurisdiction to comply with superior's orders. The officer did not forget the strictures; the judge did not remember the strictures.

After his own trial the judge stalked into the court hall and occupied the seat of justice with majesty drawing the obeisance of all waiting in court.

This is a picture drawn by imagination inspired by the High Court Circular No.14/80 directing judges of the Subordinate Judiciary to appear before the Police officer at the Guest House or the Inspection Bungalow either as delinquents or witnesses for investigation purposes. The fiction may serve as an eye-opener to the need for a change in the reality.

GLEANINGS

Chief Justice Ryam's Prayer

"Chief Justice Ryam's prayer is unparalled in loftiness and sublimity of ideas and language. It runs as follows:—

"O God of all truth, knowledge, and judgment, without whom nothing is true, or wise, or just; Look down with mercy upon Thy servants whom Thou sufferest to sit in earthly seats of judgment to administer Thy justice to Thy people. Enlighten their ignorance and inspire them with Thy judgments. Grant them grace truly and impartially to administer Thy justice and to maintain Thy truth to the glory of Thy name. And of Thy infinite mercy so direct and dispose my heart that I may this day fulfil all my duty in Thy fear and fall into no error of judgment. Give me grace to hear patiently, to consider diligently, to understand rightly, and to decide justly. Grant me due sense of humility, that I may not be misled by my wilfulness, vanity or egotism. Of myself I humbly acknowledge my own unfitness and unworthiness in Thy sight and without Thy gracious guidance I can do nothing right. Have mercy upon me, a poor, weak, frail sinner, groping in the dark; and give me grace so to judge others now, that I may not myself be judged when Thou comest to judge the world with Thy truth. Grant my prayer, I beseech Thee, for the love of Thy son our Saviour, Jesus Christ. 'Amen.' "

(Tekchand's Law of Contempt of Court, 2nd edn. P, 207)