GIEBBEL’S THEORY is all about the use of a lie so
"colossal" that no one would believe that someone "could have
the impudence to distort the truth so infamously." The principle is
sometimes translated and abbreviated as the pithy saying: "Make the lie
big, make it simple, keep saying it, and eventually they will believe it."[1]
Rather it preaches that- “If you tell a
lie big enough and keep repeating it, people will eventually come to believe it”.
And to some extend it has become practical also in actual sense. Giebbel was
the lieutenant of Hitler in Nazi regime who handled propaganda. This theory is
the basis of modern propaganda as well, by which, some myths are developed in
legal regime of our nation. Some are discussed below.
THE LEGAL MYTH OF ARTICLE 141OF THE CONSTITUTION
The simple question is who is empowered to make
the law for the land; the Judges or the Parliament? The lay people who have studied a bit of law
in school curriculum have no difficulty to answer the said question; for him
the question is not complex; the Parliament alone can enact the law of the
land; declare what it ought to be. But
the distinguished lawyers believed that the Supreme Court can declare the law
of the land, forgetting the fact that Article 141 of the Constitution in
unmistakable terms states that “the law declared by the Supreme Court shall
be binding on all courts within the territory of India.” Article 141, which is nothing but
adoption/reincarnation of Section 212 of the Government of India
Act, 1935. Article 141 is nothing but
the constitutional recognition of precedent. Section 212 of the Government of
India Act,1935 is as follows:-
“212. The law declared by the Federal Court and by any judgment
of the Privy Council shall, so far as applicable, be recognised as binding on,
and shall be followed by, all courts in British India, and, so far as respects
the application and interpretation of this Act or any Order in Council there under
or any matter with respect to which the Federal Legislature has power to make
laws in relation to the State, in any Federated State.”
The Article 141 of the Constitution reads as follows:-
“141. Law declared by
Supreme Court to be binding on all courts.-
The law declared by the Supreme Court shall be binding on all courts
within the territory of India.”
Article 141 gives a constitutional status to the
doctrine of stare decisis, nay, precedent, and nothing more. The Constitution does not at all contemplate
that the Supreme Court, or for that matter any Court, is invested with the
jurisdiction to declare/enact a law for the land. It is preposterous to think that the Supreme
Court is invested with the jurisdiction to declare what the law of the land is. The reason is simple. If the Supreme Court were to be invested with
such a jurisdiction, then before it decides any question of law where its
decision is going to bind the whole country, it should issue notice to the
entire nation and patiently hear whomsoever intends to participate in the
hearing. To hear the entire nation on
any question of law which will affect their rights and liberties is impossible.
The constituent assembly debates make it amble
clear( Article 141 of the Constitution was originally Article 117 of the Draft
Constitution):-
“Article 117
Mr. President: We then come to
article 117.
(Amendment No. 1945, was not
moved.)
Shri H. V. Kamath : Mr.
President, Sir, I move:
"That in article 117, for
the words 'all courts' the words 'all other courts' be substituted."
So if this is accepted, the
article will read thus:
"That law declared by the
Supreme Court shall be binding on all other courts within the territory of
India."
I have no doubt in my own mind
that this article does not seek to bind the Supreme Court by its own judgments.
What is intended by the article is, I am sure, that other courts subordinate to
the Supreme Court in this land shall be bound by the judgments and the law
declared by the Supreme Court from time to time. It will be unwise to bind the
Supreme Court itself, because in order to ensure elasticity, in order to enable
mistakes and errors to be rectified, and to leave room for growth, the Supreme
Court will have to be excluded from the purview of this article. The Supreme
Court may amend its own judgments, or its own interpretation of the law which
it might have made on a previous occasion and rectify the errors it has
committed earlier. Therefore I feel that the intention of this article would be
correctly and precisely conveyed by saying that the law of the Supreme Court
shall be binding on "all other courts" within the territory of India.
Sir, I move.
(Amendments Nos. 1947 and 1948
were not moved).
The Honourable Dr. B. R. Ambedkar
: Sir, there is one point which I should like to mention. It is not certainly
the intention of the proposed article that the Supreme Court sould be bound by
its own decision like the House of Lords. The Supreme Court would be free to
change its decision and take a different view from the one which it had taken
before. So far as the language is concerned I am quite satisfied that the
intention is carried out.
Shri H. V. Kamath: Then why not
say "all other courts"?
The Honourable Dr. B. R. Ambedkar
: "All courts" means " all other courts."
Mr. President : The question is:
"That
in article 117, for the words 'all courts' the words 'all other courts' be
substituted."
The amendment was negatived.
Mr. President: The question is:
"That
article 117 stand part of the Constitution."
The motion was adopted.
Article 117 was
added to the Constitution._”[2]
It clearly shows that the law laid down by the
Supreme Court of India is not the law of the land. If it were to be the law of
the land, then it should have a binding force upon the Supreme Court of India
itself. Once it is excluded, it remains to be a precedent only and nothing
more, nothing less. The law of the land will be binding upon the law makers
also. The law of the land shall be laid down by the sovereign of the nation,
nay people of the country, or ‘we the people’ acting through it's elected representatives.
If that premise is not enforced in letter and spirit, there is no existence of
Constitutional democracy.
Hence the law of the land is laid down by the
legislature and not by the Supreme Court of India under Article 141 or 32 of
the Constitution. It's only recognition of precedent, which is not binding even
upon the Supreme Court of India itself.
If in any case the other concept that the law laid
down by Supreme Court of India is the law of the land is accepted, then it
leads to many absurdities. It destroys the democratic process of the nation. If
Supreme Court can pass judgments which are binding on all the 129 crores of
people of this country, without hearing them and without notice to them, then,
India is not a democracy. Legendary Justice (Rtd.) Krishna Iyer coined the word
‘Courtocracy’ to ventilate his anguish and pain over the sorry state of
affairs. If the judges rule this country, being the executive, legislature and
the judiciary, all at once, then the Supreme legislature, the sovereign of the
nation, ‘we the people’ are reduced to slaves. Further, as the said law is not
binding upon the Supreme Court of India itself, the SCI emerges as a poser,
which is above law. The law of equity declares that ‘let you be of any high,
the law is above you” If this the true, Article 141 cannot lay down the law of
the land, but only the binding precedent
for the other courts and tribunals.
Though neither the Supreme Court nor the High
Courts or any other Court could embark upon a hearing and declare what the law
of the land is, Courts have been doing precisely that for long and, since the
invention of the jurisprudence of PIL, which legendary Justice Krishna Iyer
lamented to be a “ravenous wolf in sheep's clothing”, day in and day out
by the Supreme Court and various High Courts of the country. The reason for this Himalayan error, which
has not received public attention, is the difference associated with the
concept of what is and what is not justiciable.
The Court’s duty is to adjudicate disputes where a “person aggrieved”
for violation of his constitutional, fundamental, equitable or legal rights,
liberties, estates etc., seeks enforcement of his rights. Therefore, the existence of a “person
aggrieved” is the foundation of a lis and in common law access to justice was
confined only to the person aggrieved.
In India, out of poverty, ignorance, illiteracy and many other similar
disadvantages whose fundamental or legal rights are infringed – the under trial
prisoners, bonded labourers et al – could not on their own invoke the
jurisdiction of the Constitutional Courts.
By evolving a jurisdiction called PIL, legendary Judges like P.N.
Bhagwati, Y.V. Chandrachud, M.N. Venkatchaliah et al, by relaxing the concept of
locus standi, made it possible for some public spirited person acting pro bono
publico to take up the cause of such aggrieved persons. That is how the jurisdiction of PIL was
conceived and PIL thus understood was wholly legitimate, well within the concept
of jurisprudence. PIL thus meant the
concept of judicial review a reality to the poor and helpless. The remedy in PIL thus sought was for
enforcement of the rights of a person aggrieved, but as time passed,
particularly in Judges-2, Judges-3 and the present Judges-4 (NJAC) cases, the elementary
principles of jurisprudence, nay, the need for a “person aggrieved” for a PIL
to be understood was lost sight of.
Now it is for the people to decide, which is more sacrosanct-
the constitution or the decision of the judiciary! The judiciary itself being
the creation of the constitution, how it's judgments assume more sanctity than
that of it's parent document, the constitution itself?
No comments:
Post a Comment