"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, July 10, 2009


An enriching lunch at NUJS

It was a happenstance that we met in the canteen for lunch, but the discussion was inevitable, the Naz Foundation judgment. Either all were convinced about the end result of the judgment or none found it necessary to mention in the backdrop of a challenging technical legal issue that needed resolve, the territorial effect of the Delhi HC judgment.

This is not the first instance that a HC has held certain Central enactment as unconstitutional or has given an interpretation of this magnitude to a central statute. There have also been occasions when two different HC's have given conflicting interpretation of law. An impromptu case that comes to my mind is Entertainment Network (India) Ltd. v. Super Cassettes.(Date of Judgment 16-05-08), where the conflicting judgments of the Delhi and Bombay HCs got resolved in the SC. Yes this has been the practice, affected parties move the SC for a final resolution of the problem.

We were contemplating a situation where today if Karnataka police arrest two adults of the same sex from Cubbon Park and slap a charge under S.377, will it stand? Does the judgment of the Delhi HC have the reach to stop the Karnataka police?

With the conflicting views expressed by the SC itself on the territorial extent of the HC decision, the answer is difficult to come by. It seemed we were all in agreement on that too.

The Indian judicial system works on the principles of hierarchy wherein it is clear that HC have territorial jurisdiction and one HCs decision have only persuasive value over other HC's and not binding. Article 226 is clear as to the territorial limits of the operation of a judgment of HCs.

There were two interesting issues Pritam brought up. In the Naz foundation case, Union of India is a party. The interpretation given is that of a central law, wont it be then logical that it should be applicable to the whole of the nation. On the other hand, the effect of the judgment is that the state police is to refrain from certain actions. Incidentally, law and order is a matter in state list. Can the judgment of the HC of one state direct the actions of police of another state. He was quick to add that these are just thoughts not arguments.

Sandeep thought aloud about a previous such case, which incidentally has not caught media attention of the present magnitude for obvious reasons. The declaration of unconstitutionality of S. 309 by the Bombay HC. Conflicting opinions were rendered by certain others, which ultimately got settled by the judgment of SC.

My musings were at a fundamental level. This involves a technical issue of how there could be a unified law for the nation in matters relating to central law when judiciary intervens. Different rights in different states will definitely charge an action on equality. Are we going to face the same predicament repeatedly in similar situations till SC acts on each individual cases? In future too HCs definitely will create different sets of rights and interpretations in different states. Then wont it be good if we have a principle to untie such Gordian knots.

Pritam was very quick to put it in perspective, as a question of judicial federalism. He was apprehensive of loosing an opportunity to create a sound principle of law by the SC. This matter is also likely to be resolved by an SC judgment deciding whether S. 377 is constitutional or not. It is unlikely that the SC will declare the principle to be followed in future such issues unless attention is drawn.

The discussions continued, making us forget the unimaginative menu of Mrityunjay at the canteen (for no fault of his), as to what shall be the possible principles that could find an answer to this issue. Two solutions were on the table.

One, whenever a HC decides on the constitutional validity or renders an interpretation of a central enactment it shall be held good for the whole of the nation. Practical the solution seemed to be but it will cut at the root of jurisdiction of the HCs.

Daniel had alternatives; bring back Article 226A or enact a similar provision, create a dedicated constitutional court that shall have the sole jurisdiction to deal with the constitutional validity of central enactments.

The problems with the second suggestion are logistical, limitation of jurisdiction of the HC's and loosing one rung of appeal.

I am waiting for more lunches at NUJS canteen. You are invited.


Anonymous said...

Thank you very much for the lunch invitation. (Given the 'unimaginative menu' that Mrityunjay has on offer!!!)Really excited to know that academic debates like this happen over lunch at a law school!!! It is a wonderful blog. It throws light on many of the developments taking place silently on the legal front. Keep the good work going.
Shiju Verghese.

Anonymous said...

Since nothing has been posted for the last two weeks, I hereby take back all the good things that I wrote about this blog.
Shiju Verghese