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An estimated 23-minute read
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K.V.Dhananjay, an advocate at the Supreme Court of India points to growing ignorance among High Court judges of even the most basic provisions of our Constitution.

Shocking ignorance of our Constitution!

Shockingly, some High Court Judges are writing in their judgments that they are wholly bound by a judgment of another High Court – if that other judgment has struck down a central legislation or regulation on the ground of contravention of our constitution!

And, I am wondering here whether we are taxing our High Court judges with too much work and thereby driving some of them to forget all that they had once learnt about our Constitution and our legal history.

 

A High Court for every State – a decision of one High Court never binds another High Court:

The Constitution says that a High Court should be established for every State in this Country. Both historically and under the current constitution, a High Court only decides for the subjects within its jurisdiction – wherever necessary, by reaching out to a person even located outside the territorial jurisdiction of the High Court. And, a decision of one High Court is never binding on another High Court. Never binding. Period.

 

Seeing what does not exist in a judgment?

All of the judges that I write here about think that a lone judgment of the Supreme Court tells them that a decision of one High Court is binding on another High Court if that decision had struck down any central legislation or regulation on the ground of contravention of our constitution. The Supreme Court judgment is Kusum Ingots and Alloys Ltd. v. Union of India [2004 (6) SCC 254] (‘Kusum Ingots’, for short). The judgment is at http://indiankanoon.org/doc/1876565. Read it as many times you want and you will find nothing in it that even remotely suggests what some High Court judges are ignorantly seeing in it. At any rate, what the said judgments actually says, in part, is:

“A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country….”

“The court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.

(emphasis supplied)

 

Let’s not take the names of our judges here; it’s unfair, I think, to them:

Before we look into a few wholly erroneous judgments of our High Courts, I thought it necessary to not reveal information about the judges or the lawyers involved in those cases. I would like to believe that the judges in question were not really mindful enough of what they were saying or deciding upon – or were mindful enough but were very afraid to question a Supreme Court judgment that they thought had tremendously erred on a simple but a fundamental provision of our constitution.

At any rate, it would be fair to the judges concerned to assume here that the judgments in question are a byproduct of too much work fatigue – it is an assumption that I think will prevent criticism of the judges on this forum.

 

I have no connection to any of these cases; none whatsoever:

And, I have no connection of any kind whatsoever to any of the cases or to the judgments that I discuss here. Though you will know nothing about who the judges or the lawyers were and what was the case number, the eager ones could always query the internet by copying the portion of the judgment onto the internet – and find it out. I don’t think you should do it. Naming the judges would be pointless and unfair, in this context.

 

The Karnataka High Court just got the Kerala High Court to decide for it:

It was February 2014. A senior Division Bench of the Karnataka High Court had before it, a case it thought that someone else had already decided for it – the Kerala High Court.

Marriages sometimes breakdown and parties head to a divorce court. If a married couple governed by the Indian Divorce Act, 1869 wishes to ask for a divorce by mutual consent, it should wait for a period of two years from the date of their marriage. That statute prescribes that waiting period. However, statutes that govern marriage in other faiths such as the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, 1936 and the Special Marriage Act, 1954 prescribe a shorter period of ‘one year’ in comparison. The petitioner sought a declaration from the Karnataka High Court that the period of two years under the Indian Divorce Act, 1869 should be lowered to ‘one year’ so as to prevent it from becoming unconstitutional when compared against such other marriage statutes.

A senior Division Bench of the Karnataka High Court did not think it necessary to decide anything at all as another High Court had already ruled upon the subject and that ruling was binding on it! In a short judgment, it held:

“3. Learned counsel for the petitioner has brought to our notice a decision of a Division Bench of the Kerala High Court in Saumya Ann Thomas v. The Union of India & others [2010 (1) KLT 869] ; ILR 2010 (1) Kerala 805, to contend that Section 10A(1) of the Act has been read down and the expression 'two years' is to be read as 'one year'….She also brought to our notice the fact that the Kerala High Court having held that the period of 'two years' in Section 10A(1) being violative of Articles 14 and 21 of the Constitution and must be read down as a period of 'one year', is a judgment which is applicable throughout India. In support of this proposition, she placed reliance on the judgment of the Hon'ble Supreme Court in Kusum Ingots and Alloys Ltd., vs. Union of India and another (AIR 2004 SC 2321). It is an admitted fact that the Union of India has not filed any appeal against the order of the Division Bench of Kerala High Court.”

“7. Having heard learned counsel and on perusal of the judgment of the Kerala High Court in Soumya Ann Thomas, as well as the judgment of the Apex Court in Kusum Ingots and Alloys Ltd., what follows is that Section 10A(1) of the Act has been held to be unconstitutional being violative of Articles 14 and 21 of the Constitution. However, to save it from the vice of unconstitutionality, the expression of 'two years' has been read down to 'one year' in sub-section (1) of Section 10A of the Act. The Kerala High Court's pronouncement on the constitutionality of a provision of a Central Act would be applicable throughout India. This is made clear by Hon'ble Supreme Court in Kusum Ingots and Alloys Ltd., wherein it has been stated that an order passed on a Writ Petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution, would have effect throughout the territory of India subject of course to the applicability of the Act. In that view of the matter, this Writ Petition would not call for any specific orders with regard to holding constitutionality or otherwise of sub-section(1) of Section 10A of the Act. Keeping in mind the pronouncement of the Division Bench of the Kerala High Court and reading the same in the context of Kusum Ingots and Alloys Ltd, the position of law with regard to sub-section (1) of Section 10A of the Act is now been made clear, particularly, insofar as State of Karnataka is concerned.”

(emphasis supplied)

 

Can you see what just happened in the above case?

A senior Division Bench of the High Court of Karnataka let the Kerala High Court decide for Karnataka! The last sentence in the aforesaid para raises an interesting question – if the decision of the Kerala High Court was binding at all on the Karnataka High Court, it should be so binding irrespective of any specific declaration from the Karnataka High Court. Why bother to even issue a judicial declaration?

 

29 States and 24 High Courts:

Moreover, given that India has at last count, 29 States and 24 High Courts thereunder, what would have the judges done in such cases if a High Court in a neighbouring State had struck down a central legislation while a High Court in a distant State had upheld the validity of that very legislation? Scratch one’s head?

Ordinary basic legal reasoning should inform here that the Supreme Court could not have laid down any such proposition and if it somehow did, the Supreme Court judgment itself was liable to be ignored as being given in thorough ignorance of our Constitution.

 

The Madras High Court says that the Andhra Pradesh High Court had already decided for Tamil Nadu and Pondicherry:

Another case - it is September, 2010. A single Judge of the Madras High Court is asked to strike down Section 17-A of the Industrial Disputes Act, 1947. A labour union is before it. Ordinarily, an Industrial Tribunal’s award would bind the parties before it. However, Section 17-A of the said statute empowers the appropriate Government to interfere with such awards on certain grounds. This power to interfere with a judicial order was challenged on the ground that it encroaches into judicial independence - a basic feature of our constitution.

13 years earlier, the Andhra Pradesh High Court had struck down the same provision in Telugunadu Workcharged v. Government of India (1997 (3) ALT 492). It is at: http://indiankanoon.org/doc/645909/. After much analysis, a learned Single Judge of the Madras High Court simply let the Andhra Pradesh High Court to decide for its own territory as well. The Court said:

 “5. It is brought to the notice of the Court by the learned counsel for the petitioner that when a similar challenge was made to Section 17(A) of the Act, the High Court of Andhra Pradesh in Telugunadu Workcharged Employees vs. Govt of India reported in 1997 (3) ALT 492, has struck down the same as unconstitutional. Relying on the same, the learned counsel for the petitioner would submit that on the very same grounds, more particularly, on the ground of violence to the independence of judiciary, this Court may also declare the impugned provision as void.”

The Government respondent in this case did put up a fight, though:

“6. It is contended by the respondent Puducherry Government that the Judgment of the High Court of Andhra Pradesh is not binding either on the Government of Puducherry or on this Court and at the most, it can only have a persuasive effect in the Union Territory of Puducherry. It is further added that the High Court of Andhra Pradesh cannot exercise any extra territorial jurisdiction so as to declare the impugned provision as void even in the Union Territory of Puducherry.”

Finally, the Madras High Court held that the impugned provision was already a dead letter!

“19. The next important question is as to whether this Court needs to strike down the impugned provision, when the same has already been struck down by the High Court of Andhra Pradesh. It is to be noticed that before the High Court of Andhra Pradesh, the Government of India was a party. The said Judgment has become final. The cardinal question is as to whether such striking down of the impugned provision by the High Court of Andhra Pradesh, has force even beyond the territorial jurisdiction of the High Court of Andhra Pradesh.”

“21. The view expressed by some of the learned counsel is that once a particular provision in a Central enactment has been struck down by a High Court holding that the same is void, as the same is a violation to the basic structure of the Constitution, it is no more in the Statute book for being struck down again by yet another High Court. It is pointed out that under clause (2) of Article 226 of the Constitution of India, the High Court has got power to test the constitutionality of any of the provisions of the Central enactment and if it is once held by one High Court that it is unconstitutional, the said provision will no more remain in the Statute book. Therefore, as of now, Section 17-A of the Act is not available in the Statute book and so, the consequential order passed by the Government of Puducherry in exercise of power under the said provision alone is liable to be quashed, it is submitted.”

25. In the light of the above legal position, applying the principles stated in Kusum Ingots case, cited supra, I am of the view that the impugned provision viz., Section 17-A of the Industrial Disputes Act, 1947, is no more in force in the Union Territory of Puducherry also in pursuance of the Judgment of the High Court of Andhra Pradesh in Telugunadu Workcharged Employess v. Government of India, cited supra. There can be no doubt that the Judgment of the High Court of Andhra Pradesh, in which it has been adjudged that Section 17-A of the Act is unconstitutional, will have effect throughout the Territory of India.”

(emphasis supplied)

Not surprisingly, the learned Single Judge of the Madras High Court did not ask if a judgment of any other High Court had decided to the contrary!

 

Central Government’s failed appeal to a Division Bench of the Madras High Court:

Thereafter, the Central Government appealed to a Division Bench of the Madras High Court. In October, 2014, a Senior Division Bench of the Madras High Court held that there was nothing really left for it to decide as the Andhra Pradesh High Court had already decided for its territory as well. In dismissing the Central Government, this Senior Division Bench said:

 “5.The learned counsel appearing for the appellant submitted that the Andhra Pradesh High Court Judgement striking down Section 17-A with sub-sections (1) to (4) of the Industrial Disputes Act, 1947 will not have operation in the Union Territory of Puducherry and therefore the action of Puducherry Government in declaring the award of the Special Industrial Tribunal as unenforceable, is valid.”

12. The Industrial Disputes Act, 1947 is a Parliamentary Legislation and if any of the High Court declares a provision of the Parliamentary Legislation as unconstitutional, the said decision is applicable throughout the territory of India/wherever the enactment was held applicable. The said issue was considered by the Honourable Supreme Court in the decision reported in (2004) 6 SCC 254 (Kusum Ingots & Alloys Ltd. v. Union of India)….

“A Division Bench of the Karnataka High Court in the decision reported in ******* (2014) considered similar issue and following the above cited Supreme Court decision held that pronouncement on the constitutionality of a provision of a Central Act by a High Court would be applicable throughout India.”

“14. In this case, …. Section 17-A(1) of the ID Act, 1947, which was already declared as unconstitutional by the Andhra Pradesh High Court in the year 1997 itself, and the Union Territory of Puducherry is not justified in issuing a notification on 11.8.2000 by invoking the provision, which is not in existence on the date when the notification was issued.

“15. It is noteworthy to mention here that Section 17-A of the Industrial Disputes Act, 1947 was not in the statute…The said position viz., declaration of unconstitutionality of Section 17-A with sub-sections (1) to (4) of the Industrial Disputes Act, 1947 holds good even today …Hence the learned single Judge was perfectly justified in allowing the writ petition and no ground is made to interfere in the order of the learned single Judge.”

“16. Finally, the writ appeal is dismissed and the order of the learned single Judge made in ***** is confirmed”

(emphasis supplied)

So, you have a senior Division Bench of the Madras High Court declaring that a statutory provision in a central legislation impugned before it was not even in existence because it had already been struck down by a High Court in another State!

 

Bombay High Court vis-à-vis the Madhya Pradesh High Court:

Another case - it is May, 2013. A senior Division Bench in the Bombay High Court too is told about Kusum Ingots. This Bench says that the facts before it did not involve a challenge to the constitutionality of any provision. No attempt is made however by this Bench to say that a judgment of another High Court is not binding on the Bombay High court. So, a tragic error sometime later is not to be ruled out – as we will also see shortly. This senior Division Bench of the Bombay High Court said:

“7 The learned counsel has basically raised this issue only and relied upon judgment dated 20 February 2008 passed by the Division Bench of Madhya Pradesh High Court, Bench at Indore, in W.A. No.2/2007 (Smt. Shobha Jaiswal vs. Hindustan Petroleum Corporation Ltd.)….”

“10 The learned counsel appearing for the petitioner, therefore, contended that in view of the above Division Bench judgment and as there was no interference by the Supreme Court, the view so taken binds and will have an effect throughout the territory of India. The reliance was placed on Kusum Ingots & Alloys Ltd. v. Union of India and another for that proposition. This judgment of Supreme Court in Kusum Ingots (supra) is distinguishable on facts and circumstances itself. The constitutional validity was challenged under Article 226 of the Constitution of India. The order, therefore, so passed though in given facts and circumstances would have effect throughout the territory of India, but it is always subject to the applicability of the Act. We are not concerned with such constitutionality of any provision.”

(emphasis supplied)

So, you have a senior Division Bench of the Bombay High Court seeing in a judgment of the Supreme Court, the same thing that a Division Bench of the Madras and Karnataka High Courts saw in it – that a judgment of a High Court on the constitutional validity of a central legislation would bind other High Courts.

 

Bombay High Court vis-à-vis the Gujarat High Court:

The presiding judge in the above case at the Bombay High Court had also presided over a different Bench in January, 2015 wherein, the same Kusum Ingots argument in a case before it went unrefuted:

“In this petition under Article 226 of the Constitution of India, the petitioner-Cooperative Society has challenged the constitutional validity of the Constitution (97th Amendment) Act 2011 pertaining to the Co-operative Societies.”

“2. The learned counsel places reliance upon the decision dated 22 April 2013 of the Division Bench of Gujarat High Court in Rajendra N. Shah v. Union of India [Writ Petition (PIL) No. 166 of 2012]. The learned counsel also places reliance upon the decision of the Supreme Court in Kusum Ingots & Alloys Ltd. v. Union of India ((2004) 6 SCC 254), in support of the contention that the decision of the Gujarat High Court would apply throughout the territory of India.”

(emphasis supplied)

The aforesaid argument was not even refuted by the Government respondent except to say that the matter was thereafter carried to the Supreme Court.

It goes without saying that the High Court judges who have said or otherwise suffered an argument that the decision of a different High Court binds their High Court have simply expressed or demonstrated tremendous ignorance of our constitution and of our legal history.

 

Interesting - the Delhi High Court vis-à-vis the Calcutta High Court:

In 2008, a Division Bench of the Delhi High Court had upheld the constitutional validity of a certain provision in a central legislation. Rule 106B of the Drugs and Cosmetics Rules, 1945 prohibits homeopathic medicine containing more than 12% alcohol v/v (ethyl alcohol) from being sold in larger bottles (bottles holding more than 30 milliliters cannot be sold in retail and bottles holding up to 100 milliliters may only be sold to hospitals or dispensaries). This judgment is at http://indiankanoon.org/doc/670361/.

The same rule is now under active challenge before the Calcutta High Court. Contrary to the decision of the Delhi High Court but perfectly in consonance with law, a few months ago, the Calcutta High Court proceeded to issue an interim Order restraining the operation of the same provision, Rule 106B of the Drugs and Cosmetic Rules, 1945 [Writ Petition No.8062 (W) of 2015 (Bengal Homoeopathic Manufacturers' Association v. Union of India]. The interim order is at: http://indiankanoon.org/doc/135734549/. It says:

 “The learned counsel for the writ petitioners claims that Rule 106B framed under the Drugs and Cosmetics Act, 1940 is ultra vires the Constitution of India. There is no compliance with Section 38 of the said Act regarding laying of the said rule before each house of Parliament. This information, the writ petitioners obtained under the Right to Information Act. The information is annexed to the writ petition.”

“Prima facie, it appears that the requirements of Section 38 have not been complied with by the writ petitioners. Therefore, Rule 106B, prima facie, cannot be said to be duly made and published.”

“In those circumstances, I admit the writ petition and pass an interim order in terms of prayer (h) of the petition till disposal of the writ application.”

A sentence in Kusum Ingots does say:

“…An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.”

 

What should a resident, say in Rajasthan, do now?

All kinds of entertaining scenarios should arise now – say, a subject in Rajasthan wishes to challenge the same Rule 106B in his State. So, which decision binds him? The final judgment of the Delhi High Court upholding the said rule or the interim order of the Calcutta High Court restraining the operation of the same rule? Wait, should not the proponents of Kusum Ingots claim that the Delhi High Court judgment has itself become automatically restrained by this interim order of the Calcutta High Court – even within the territory of NCT of Delhi? Or, should they be claiming that the proceeding in the Calcutta High Court is itself unlawful and unnecessary? You could multiply all such laughable but real-world-scenarios to simply show that the constitutional law as practiced in India sometimes can really be terribly entertaining – though no fault could be imputed at all to either the Delhi High Court or to the Calcutta High Court in the aforesaid case.

 

An imaginary but a really likely scenario - Orissa Government to struggle it out at the Himachal Pradesh High Court!

Then, take the case of a concurrent legislation such as the Indian Penal Code, 1860 or the Information Technology Act, 2000 that are issued by the Parliament of India but are administered by the State Governments in their territories. Say, a person in Himachal Pradesh challenges the constitutional validity of some such law in his High Court. And, a subject in Orissa who takes Kusum Ingots in much the same way as some of our High Court judges is worried about what the Himachal Pradesh High Court’s decision could do to him and wants to implead in the Himachal Pradesh High Court. He proceeds to the Himachal Pradesh High Court. Should that court implead him? After all, if its decision is going to affect the entire country, it would be altogether unlawful for it to turn away a resident from Orissa or any other State in India who wants an audience before that court.

Further, the Orissa State Government too would have an interest in the enforcement of that statute within its own territory. Should an Orissa resident be held to be interested enough in a proceeding in the Himachal Pradesh High Court in such event, the Orissa Government too cannot be left behind and ought to be naturally impleaded and heard in the Himachal Pradesh High Court. So, the Orissa Government should sweat it out then at the Himachal Pradesh High Court!

 

The entertainment could be short lived!

After all of such bizarre drama takes place there, an interim Order in any one of the 23 other High Court upon the central law in question should put a screeching halt to it all? Or, no? Or, don’t know? Or, all of the above?

 

The Supreme Court could too come under threat – finally!

Incidentally, a concerned citizen is reported to have challenged Section 10A of the Indian Divorce Act, 1869 in the Supreme Court on the same ground as a resident in Kerala had successfully challenged in the Kerala High Court. [Writ Petition (Civil) No. 127/2015 – Albert Anthony v. Union of India]. A few weeks ago, the Supreme Court had directed in this case that:

“Having heard learned counsel for the parties, we direct the Principal Judge, Family Court, Ghaziabad, to decide the Special Marriage Petition No. 6 of 2013 titled "(name withheld)" filed under Section 10A of the Divorce Act, within one month from today.”

“In the meanwhile, we expect the Ministry of Law and Justice not only to file its Reply but also take a decision on as to whether or not sub Section (1) of Section 10A of the Divorce Act is to be amended.”

 

What if someone is really going to make the following arguments in the Supreme Court as stemming from Kusum Ingots in a case such as a challenge to the Indian Divorce Act, 1869?:

The amusing arguments that the proponents of Kusma Ingots might want to make to the Supreme Court should the Supreme Court be willing to hear it out:

“If the Kerala High Court judgment was binding on the Karnataka High Court, it was equally binding on the Allahabad High Court as well”

“What was binding upon the Allahabad High Court was equally binding upon a Magistrate situated in Uttar Pradesh and which is subject to the supervisory jurisdiction of the Allahabad High Court”

“That the Kerala High Court had already settled the law for the whole country, the act of the Supreme Court in hearing an issue that already stands adjudicated by the Kerala High Court is rather improper or irregular!”

“In such circumstances, the Supreme Court of India has no jurisdiction, therefore, to hear any challenge to the constitutional validity of any provision in a central legislation except in the form of an appeal by any aggrieved party therefrom – one High Court’s decision on such an issue binds the whole country and the Supreme Court does not have the power to reopen such a concluded decision except in the form of an appeal!”

“The Supreme Court would be committing an illegality in entertaining a writ petition under Article 32 of the Constitution on such a question already settled by a decision of any High Court! Article 32 already stands dramatically curtailed by Kusum Ingots!”

Amusing? Or, disturbing?

 

Things are already deteriorating rapidly:

Things are truly deteriorating in our High Court judiciary and there is an urgent need to do something or the other about it. If you have seen or heard about matching ignorance by other judges flowing from a reading or misreading of Kusum Ingots, do share it here – without revealing the names of the judges. It is not Kusum Ingots that needs to change, however.

It is sheer ignorance on the part of some of our High Court judges that makes them see in a judgment, what they ought not to see or what they ought not to consider to bind them should they see it.

 

What about you? Do you also complain of too much fatigue?

So, if you too see in Kusum Ingots what so many High Court judges saw in it, I would like to accuse you of the same thing then – tremendous ignorance of our constitution and of our legal history.

 

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