Trivia of Right to Shelter and its Clash with Forced Evictions of underprivileged sections from public lands.

By:- Dushyant Mainali

Advocate

High Court of Uttarakhand

 

·  The Prologue

As per the Census of India 2011, India has more than 1.7 million homeless persons, of which 938,384 are located in urban areas. After nine long years thereafter, however, it seems to be nauseatingly misjudging the real number of homeless persons at present. Civil society organizations estimate that at least one per cent of the population of urban India (about 378 million) is homeless. Based on this estimate, it can be extrapolated that the population of the urban homeless is at least three million.[1] After a thorough study of the Zonal Integrated Police Network (ZipNet) data the Housing and Land Rights Network (HLRN) has calculated that between January 2010 and 31 May 2016, at least 23,846 homeless persons have died from a multitude of reasons: infectious diseases, chronic ailments, exposure to the cold, heat, and rain, violence, sexual abuse, murder, road accidents, and drug overdose.[2]

Living beneath open sky or in makeshift arrangements without any form of refuge seriously increases the susceptibility of the homeless to maltreatments, bloodshed, injury, disease, and untimely deaths. Many of these deaths are preventable, especially if the homeless had access to adequate

 

 

housing, food, water, sanitation, and healthcare facilities. Housing being the elementary stride towards dignified living, the shelter has been considered to be the fundamental comfort a person can have. In our Indian Society the axiom “Roti Kapda aur Makan” (food, clothing and shelter)  has been used to connote three bare minimum facilities, a human can have for a satisfactory life. Shelter despite being one of the three basic needs has always been in conflict with actions of the local administrative authorities in removing encroachments from public lands and demolishing unauthorized slums and housing structures by implication of force.

 

·    Right to Shelter ; as a social right and human right in the radiance of International Covenants/ Declarations

 

International Covenant on Economic, Social and Cultural Rights[3] recognizes the right of all individuals to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. Article 11.1 of the ICESCR obligates on the signatory nations as:-

 

“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consen

 

Right to housing has also been recognized as a human right under the Universal Declaration of Human Rights[4]. Article 25(1) of Universal Declaration of Human Rights states as under: –

 

“Article 25

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

 

·       Right to Shelter; as a Fundamental Right in judicial eyesight.

In various pronouncements, the Hon’ble Supreme Court of India has broadened the meaning of life under Article 21 of the Constitution so as to include within its realm, the right to shelter. Before discussing the principles laid down by Supreme Court of India in this regard it will be apposite to refer a recent Allahabad High Court Judgment which carries the essence of the right to shelter through the reference of various precedents which came from the Supreme Court in

last many decades. In Rajesh Yadav v. State of UP[5] decided on 01.07.2019, the Allahabad High Court has held:-

“Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India”.

The signpost Judgment of the Supreme Court, which in 2019 the Allahabad High Court considered, is more than three decades old Olga Telis & Ors. vs. Bombay Municipal Corporation & Others[6], where analyzing the rights of the pavement dwellers the  Hon‟ble Supreme Court observed in para 32 of the text of the verdict, as:

“32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely,

that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation.”

 

Thereafter in 1990 Supreme Court dealt with facets of right to life in a civilized society in Shantistar Builders vs. N.K Totame[7] and observed as under:

 

“.9. Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well- built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud- built fire-proof accommodation.”

After observing about the importance of right to housing and shelter with right to life the Apex Court went further ahead and categorically held that right to life implies right to shelter and in Chameli Singh vs. State of UP[8], has held that right to life implies right to shelter. The para 8 of the judgment it held:-

 

“8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under

an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights”.

 

Thereafter in plethora of judgments the Supreme Court kept

on amplification of the Right to Shelter. In a summarized manner A reference can be made to:-

 

Ø U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd. (1996):[9]The Supreme Court affirmed that: “The right to shelter is a fundamental right, which springs from the right to residence under Article 19 (1) (e) and the right to life under Article 21.”

 

 

Ø Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors. (1997):[10] The Supreme Court directed the state to construct affordable houses for the poor.

 

 

 

Ø People’s Union for Civil Liberties v. Union of India and Others:[11] In this case, a series of orders were passed for ensuring food to the needy under various schemes. The case also included the issue of homelessness and resulted in several landmark orders regulating shelters for the homeless across India.

 

In PC Gupta Vs State of Gujarat and Ors[12], in 1994, the Court went further by holding that:-

 

“the right to residence and settlement is a fundamental right under Article 19(1)(e) and it is a facet of inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policy of planned development of the country and has undertaken massive housing schemes. As its part, allotment of houses was adopted, as is enjoined by Arts.38, 39 and 46, Preamble and 19(1)(e), facilities and opportunities to the weaker sections of the society of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is, therefore, imperative of the State to provide permanent housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities within their economic means so that they could make the payment of the price in easy installments and have permanent settlement and residence assured under Article 19(1)(e) and 21 of the Constitution”

 

Public Lands as a resource and Trusteeship of Government in scrutiny of Public trust doctrine.

If exercise of Right to shelter can be exercised is an unfettered manner and it is one of the fundamental rights then the demolitions of slums, huts and other makeshift tents on public lands can seem to be an oppression  of the poor by the state at first glance.

Then the question that occurs in forethought is, if not homeless people then who owns the Public Land?  Land being a resource like air, sea, forests and water being a gift of nature, should be made freely available to everyone irrespective of the status in life, this is the principle of ancient Roman origin Doctrine of Public Trust. The doctrine bids upon the Government to protect the resources as trustees for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.

Indian Room of public trust doctrine

Accommodating public trust doctrine from common law, the Indian courts have applied this in their Judgments. Articles 48A and 51A of the Constitution of India also furnish the principles of jurisprudence. Under this doctrine, the state has a duty as a trustee under Art 48A to protect and improve the environment and safeguard the forests and wildlife of the country. This also enjoins upon the encroachment free forests and wildlife habitats.

Putting it minimally the Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the reasonable use of the public. As per this Doctrine of Public Trust, the State is the trustee of all national resources which are by nature meant for public use and enjoyment. The Public at large is the beneficiary of the natural recourses including lands. The State as a trustee is under a legal duty to protect the natural resources including public lands; that says these resources including lands meant for public use cannot be converted into private ownership. This Public trust doctrine has matured from Article 21 of the Constitution of India and has been refined by the successive judicial pronouncement.

 

·       The Catastrophe of Forced Evictions from Public Lands.

The tragedy of forced eviction of poor from the public land is widespread in India. The only documented resource in this respect is the data collected by Housing and Land Rights Network, New Delhi, with the assistance of partner organizations, reveals that government authorities, at both the central and state levels, demolished more than 41,700 homes, thereby forcefully evicting at least 202,200 (over 2 lakh) people

across urban and rural India. This is in addition to the over 260,000 people evicted in 2017, the majority of whom were not resettled by the state and thus continue to live in extremely inadequate conditions characterized by high insecurity, lack of access to basic services, precarity, and fear. Furthermore, data compiled by HLRN also reveals that at least 11.3 million people across India live under the threat of eviction and potential displacement.[13]

However, this can be said to be conservative estimate and presents only part of the real picture and scale of forced evictions in the country, as they only reflect cases known to HLRN. The actual number of people evicted and displaced in India as well as those facing the risk of eviction, therefore, is likely to be much higher

 

Definition of ‘Forced Eviction’ 

 

Definition of ‘Forced Eviction’ which HLRN has used in its report uses the definition of ‘forced eviction’ provided by General Comment 7 (1997)1 of the United Nations (UN) Committee on Economic, Social and Cultural Rights[14], as:

 

“The permanent or temporary removal against the will of individuals, families or communities from their homes or land, which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”

 

The apathy of lack of Sustainable focus

Across the country, a large number of communities are struggling against projects and freeing public lands that threaten to displace them from their shleters. It is ironic that forced evictions and demolitions have continued across the country despite the much talked about central government’s Pradhan Mantri Awas Yojana (PMAY) or ‘Housing for All–2022’ scheme and other state government housing programmes that claim to focus on the provision of housing for marginalized and low-income populations in urban and rural areas.
Forced evictions violate multiple human rights and have severe impacts on the affected population, both in the short-term and long-term, as well as on social justice and the nation’s development and prosperity.

Despite the severity of the nationwide crisis, the issue of forced eviction not only continues to be ignored by both state and non-state actors, but is being intensified by multiple acts of commission and omission at various levels.

 

·       The repercussions of the Anti-encroachment & area beautification drives.

An analysis of the causes of forced evictions and home demolitions, finds that the majority occurred for reasons related to removal of houses of the urban poor, based on the perception of the state and its agencies that they are “illegal” or “encroachments.” Such “slum-clearance/anti-encroachment/city-beautification” drives, including those related to mega events and for implementation of “slum-free city” schemes, resulted in the highest number of people (over 94,000) being evicted in 2018.

 

 

 

Across the Nation, homes of the urban poor continue to be considered as “illegal/encroachments” by all branches of the government—the legislature, executive, and often the judiciary—and are demolished without any consideration that people have been living at those sites for decades, sometimes 40–50 years, and possess documents such as election and ration cards that validate their ‘legality’ and proof of residence. They work on improving the quality of the land, develop vibrant neighbourhoods and settlements, and contribute to the economy, but when the value of the land on which they live appreciates or when the state decides to commercially develop that land, they are considered dispensable and evicted.[15]

 

·       Prejudiced perception of poor posing security threat & Role of Courts in Forced Evictions

Without any strong foundation a general perception amongst many middle class and wealthy groups in Indian cities is that the urban poor pose a “security threat” to wealthier residents, it is also evident in the way that the state treats them. The Indian Courts despite recognizing Right to shelter as a fundamental right, loud and clear have always impressed upon encroachment free public lands. Sometimes they care for the displaced and often they become ignorant of their troubles.

Some examples of cases in which the High Courts in India have ordered evictions and removal of people from their place of living for encroaching upon government land and hence denying the right to housing/ shelter are the following:

 

·       Almitra Patel vs. Union of India (2000);[16]

·       Navniti CGHS vs. Lt. Governor (2004);[17]

·       Hem Raj vs. Commissioner of Police (2005);[18] and,

·       Unnamed Girl Child of 13 Days through its Mother the Natural Guardian Noori Sameer Mujavar v. State of Maharashtra andOthers, 2016: ( In this case though recognizing the housing need of those evicted, the state was absolved of its duty and obligation to provide housing to the affected families. )

 

Though the Supreme Court of India and several state High Courts have, in numerous judgments, upheld the right to housing/shelter as an incontrovertible component of the fundamental right to life, various court orders and their interpretation by state authorities have always been responsible for forced eviction. As recorded by HLRN even in a single year 2018 these Court orders resulted in the eviction of over 52,000 people, including in Chandigarh, Chennai, Dehradun, Delhi, Gurugram, Jaipur, Mumbai, Patna, Prayagraj, and Srinagar, among other locations.[19]

 

The Madras High Court, in various cases, ordered the removal of low-income houses considered as “encroachments,” primarily for the protection and “restoration of water bodies.” The order of the Madurai Bench of the Madras High Court in W.P. (MD) 20884/2018 resulted in a drive to remove 198 identified settlements along the Panaiyur Canal, during which people protesting the eviction were arrested. In W.P. 29811/2014, the Madras High Court ordered eviction in Konnur High Road, Otteri, Chennai, resulting in the removal of 315 families that had been living there for more than 50 years and who worked in the neighbourhood as domestic workers, construction workers, drivers, rickshaw-pullers, small vendors, and tailors. Similarly, in Salem, nearly

 

 

211 houses built on the water-spread area of the Vasishta River, reportedly, were demolished, on an order of the Madras High Court. In Kallikuppam, Chennai, 213 houses were demolished for the restoration of Korattur Lake despite strong protests from residents who had been living at the site for more than 30 years. The Madras High Court, in W.P. 1294/2009, had categorically prohibited the regularization of settlements situated near water bodies such as Korattur Lake, leaving no scope for in situ rehabilitation of the residents, forcing them to relocate to sites situated on city outskirts.

The Madras High Court (W.P. 36135/2015), while supporting removal of homes of the urban poor living along water bodies in Tamil Nadu, also ordered that, “In case the encroachments are not removed even after due process of law, the authorities are at liberty to remove such of those encroachments by use of force, if need be, and in such circumstances, the police authorities shall give all necessary assistance to the authorities for removal of the said encroachments.”

In Prem Nagar, Dehradun, an order of the Uttarakhand High Court in W.P. (PIL) 47/2013 led to the demolition of 50 houses. In the order dated 18 June 2018, the Court stated that, “Towns have been reduced to the status of slum areas,” and consequently, directed the authorities to remove all unauthorized encroachments on public streets “by using its might,” including the imposition of Section 144 of the Criminal Procedure Code60 to aid the demolition process and prevent any protest. In Jaurasi, Roorkee, authorities demolished 42 houses without any notice, acting on the order of the Uttarakhand High Court in W.P. (PIL) 148/2016 to remove encroachments for widening roads in order to accommodate the rise in vehicular traffic. The eviction was carried out despite clarification from the Supreme Court of India, in S.L.P. (C) 30026–30027/2018 that protocol had to be

 

 

 

followed before the eviction, including issuance of adequate notice and opportunity to be heard. Similarly, in W.P. (PIL) 170/2017, the Gujarat High Court ordered the removal of all “encroachments” without any delay from the streets of Ahmedabad to ease vehicular traffic. In its order dated 7 August 2018, the Court observed that if the “encroachers” were allowed “to remain in settled possession for a long period, they may claim a semblance of right.”[20]

These are however a mere references and not conclusive list of incidents but such actions indicate the increasing criminalization of poverty and go against the foundational principles of the Indian Republic as well as the Constitution of India that guarantees everyone the right to equality and the freedom to reside in any part of the country. They   also indicate the distortion of the notion of ‘public land,’ as the state that is entrusted with the protection of such land for the people continues to act against the people, by evicting them.

 

·       Right to shelter, evictions and observance of due process.

Although most of the incidents of the forced evictions are carried out under court orders, the judiciary has also upheld the right to housing in a few progressive orders and has taken care that even an encroacher be given opportunity of being heard. For instance, in W.P. (C) 11616/2015[21], the High Court of Delhi regularly monitored the condition of people evicted in 2015 in Shakur Basti (West), Delhi, and passed orders for the provision of electricity and installation of toilets. In its final judgment of 18 March 2019, the Court strongly affirmed the right to housing as a human right, held that forced evictions without due process, including survey, notification, and resettlement are illegal, and declared that the urban poor could not be viewed as “encroachers” or illegal occupants of the land. The Delhi Court held that forced eviction without following due process established in the case of Sudama Singh Vs. Government of Delhi[22] and other relevant policies would be illegal.

It stated therein that: “Once a JJ basti/cluster is eligible for rehabilitation, the agencies should cease viewing the JJ dwellers therein as ‘illegal encroachers.’ The decisions of the Supreme Court of India on the right to shelter and the decision of Delhi High Court in Sudama Singh[23] require a Court approached by persons complaining against forced eviction not to view them as ‘encroachers’ and illegal occupants of land, whether public or private, but to require the agencies to first determine if the dwellers are eligible for rehabilitation in terms of the extant law and policy. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in the above decisions [emphasis added].”

 

The High Court of Delhi also affirmed the ‘right to the city’ of the urban poor, in strong contrast to judgments which presume “illegality” of urban settlements and order eviction. The Court held that:

 

 

 

“The ‘Right to the City’ acknowledges that those living in JJ clusters in jhuggis/slums continue to contribute to the social and economic life of a city. These could include those catering to the basic amenities of an urban population, and in the context of Delhi, it would include sanitation workers, garbage collectors, domestic help, rickshaw pullers, labourers and a wide range of service providers indispensable to a healthy urban life. Many of them travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life. Prioritizing the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution [emphasis added].”

 

The Supreme Court of India, in an ongoing case (W.P.(C) 55/2003)[24], has passed a series of positive orders to safeguard the rights of homeless persons across the country. In an order dated 7 September 2018, passed in these proceedings the Court reiterated that “housing is a basic need of everybody” and required all states / Union Territories to formulate a Plan of Action for the urban homeless which would include the methodology for identification of homeless persons, nature of shelters, and identification of land.

 

 

·                      Conclusion

 

Though, as it apparently comprehensible that the Supreme Court and several state High Courts have, in numerous judgments, have upheld the right to housing /shelter as an inalienable component of the fundamental right to life, but its travesty lies in the non foresighted state actions in demolitions

 

without prior rehabilitation of the poor encroachers. The due process is mostly not adopted in the encroachment removal drives and housing of the poor is demolished without providing them adequate shelter which renders them homeless and displaces and vulnerable to various diseases and sufferings and infringing their Right to Shelter.

Despite all judicial spotlights, on inalienable Right to Shelter the Governments have not taken any concrete measures to address this crisis of homeless and landless people. The adequate housing is a crisis in India, due to high cost of the land rights which are inaccessible for the poor population, which precludes the approach of the human right to adequate housing for the vast majority of population. In the welfare state, course of action of drawing balance  between public trust of public lands, and Right to shelter need to be re- visualized in order to respect and uphold the Right to shelter of the poor marginalization and destitute sections of the society.

******************

[1] Special Rapporteur on the Right to Adequate Housing, Housing and Land Rights Network (India)
[2] http://zipnet.in/
[3] International Covenant on Economic, Social and Cultural Rights Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 (https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx)

[4] The Universal Declaration of Human Rights proclaimed by the United Nations General Assembly in Paris on 10  December 1948 (https://www.un.org/en/universal-declaration-human-rights/)

 

[5] 2019 SCC OnLine All 2555
[6] (1983) 5 SCC 545
[7] (1990) 1 SCC 520
[8] (1996) 2 SCC 549
[9] (1996) AIR 114 1995 SCC.
[10](1997) 11 SCC 121.
[11]People’s Union for Civil Liberties v. Union of India, W.P. (C) No. 196 of 2001.
[12] JT 1995 (2) 373
[13] Forced Evictions in India in 2018: An Unabating National Crisis, Housing and Land Rights Network, New Delhi, 2019
[14] The right to adequate housing (Art.11.1): forced evictions : . 20/05/97. CESCR General comment 7. (General Comments) (https://www.refworld.org/docid/47a70799d.html)
[15]  Ibid 13
[16] (2000) 2 SCC 679.
[17] WP (C) 5697/2002, High Court of Delhi, August 2004.
[18]WP (C) 3419/ 1999, High Court of Delhi, 14 December 2005.
[19]  Ibid 13
[20]  For Reference Official websites of the respective High Courts (ecourts.gov.in)
[21] ecourts.gov.in
[22] (2010) 168 DLT 218 (DB))
[23] supra
[24] E.R. KUMAR vs. UNION OF INDIA (https://sci.gov.in/case-status)

 

Unsettling the “Settled Law”: “Reference” as a progressive Judicial device

Dushyant Mainali

 

“Settled law” is the most used term in legal briefs, court room arguments and finally in the text of the Judgments in almost all the functional legal-judicial systems in the world. The term comes from a judicial concept adopted from common law.  The apposite term in this connotation is “stare decisis” in Latin to mean:- “stand by, on things decided”.

In India, as well, we have adopted a legal tradition of giving highest regard to judicial precedent.  By constant development our judicial system, adopted the concept in order to establish a public belief of consistency in judicial proceedings.  Laws and legal interpretations cannot be stagnant in nature; they keep following the social order. Something desirable to be done today, will certainly not be prolific to be done in future. This is a widely accepted theory, but by no means it’s an absolute one.

Technicality involved in the term “Settled Law”

Technically “Settled Law” means the questions of law regarding interpretation and operation of law have been settled by the Courts. The functioning of Judicial System has dealt on numerous occasions, where any law or provision can have multiple interpretations and certainly more than one. In such cases it becomes difficult to follow the law and implement it properly. Then the difference of opinion arises as contesting parties in litigation claim their interpretation and understanding of law is the correct version. Then the Courts have to become the trendsetter and final interpreters of law to decide upon the questions of law raised in milieu of disputed interpretations of provisions. Then courts’ decisions should act as precedent for further disputes. Thus the term settled law, will connote the question of law on the point has been settled through a judicial process. Settled law evolves over a period of time, gradually. Therefore “settled law” in a broader sense is used to refer to decisions of the higher court which have remained unchanged for a long time but it cannot guarantee to remain unchanged forever

Indian Supreme Court: Unsettling the “Settled Law”

Law has always been progressive and the stretchiest concept governing human society. It changes with shifting times, circumstances and with the new challenges which are mostly unanticipated. Indian Supreme Court has each time accepted this challenge of unsettling the settled law as per the newly faced challenges and situations which arise. The Indian Supreme court has a history of overturning previous precedent, unsettling the settlement of “settled law” itself, time to time.  One can illustrate the prominent question that arose time to time regarding extent of amendment of the constitution of India the Parliament can carry out. The Hon’ble Supreme Court of India held it differently in different cases till it settled law in this context in Kesavananda Bharati[1] case. In Kesavananda case, the Supreme Court finally held that parliament can amend the constitution but it cannot destroy the basic features of the constitution. Therefore, as on the date, it is the settled law on this question as a larger bench of 13 Judges constituted in the Kesavananda case settled law therefore its binding on all and being large bench it overruled the decisions of smaller benches. The Indian Supreme court has a history of overturning previous precedents, unsettling the settlement of “settled law” itself time to time.

As per our Constitutional framework the Supreme Court of India is not infallible, but is final in the sense that the verdicts delivered by it are binding in nature, they are law of the Land as per Article 141[2] of the Constitution of India.

As changing times require the adequate change in the applicable law over some subjects. It would be a grave miscarriage of justice if Supreme Court pronouncements could not be overturned in later times.  Various Judicial contributions including the expanded interpretation of Article 21 in terms of Right to Life and Personal Liberty would never have been possible, without the Supreme Court’s power to revisit stand taken by it in the past.

Even before completion of the first decade since independence, in 1955, in Bengal Immunity Co. v State of Bihar[3], the Supreme Court expressed the opinion that it was not bound by its earlier judgments; it could re-evaluate its own previous decisions to keep pace with the needs of changing times.

A five-judge bench of the Supreme Court in Central Board Of Dawoodi Bohra v State Of Maharashtra & Anr[4], while discussing the legal propositions relating to judicial discipline, held –

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum 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 co-equal strength.

(2) A Bench of lesser quorum cannot doubt the correctness of 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 co- equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co- equal 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 above said 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 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 Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh & Ors. and Hansoli Devi & Ors.(supra).”

Very recently on September 6th 2018[5] Supreme Court of  India heaved the attention of  both the conventional and progressive sections of world while it overturned its own judgments on homosexuality and declared that:-

“it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons  above the age of 18 years who are competent to consent) in private, is violative of Articles 14,15 19, and 21of the Constitution.”

The Supreme Court in this case has made a gratifying endeavor of putting the law at pace with the modern liberal society. Para 19 of the Judgment observing about constitutionality of a provision gives a undertone of the principle of capsizing itself:-

“…presumption of constitutionality is merely an evidentiary burden initially on the person seeking to challenge the vires of a statute and once any violation of fundamental rights or suspect classification is prima facie shown, then such presumption has no role”

Relying on the theory propounded in said para 19 of the Judgment the Apex Court has held:-

“The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors[6].is hereby overruled for the reasons stated in paragraph 19”

 

This trendsetting of unsettling the settled law, with times and with coming circumstances has changed the Judicial values treating the Statutes and the Constitution as a breathing entities, whose meaning and interpretation may change with times and circumstances.

If the Supreme Court were to be bound and estopped completely by its past pronouncements, then there would be no need for new modern viewpoint or development of law.

“Black-letter law” and “Settled law”

As per the Oxford reference[7],  black letter laws, in common law legal systems, are the well-established legal rules that are no longer subject to reasonable dispute. In an 1831 case in the U.S. Supreme Court, Jackson ex dem. Bradstreet v. Huntington, the phrase “black letter” was used: “It is seldom that a case in our time savours so much of the black letter; but the course of decisions in New York renders it unavoidable…”[8]  The phrase “black-letter law” was also used in the Pennsylvania Supreme Court case  Naglee v. Ingersoll[9].  Although used in 1831 and 1847 cases, at the first instance the phrase “Black Letter Law” has a chance of being misunderstood with the reference of Black’s Law Dictionary, which was first published in 1891.

 

The phrase has its historic roots to the practice of setting law books and citing legal precedents in black letter type, a tradition that had continued to exist long after the change to Roman and italic text for other printed works specially the bold black fonts which we use to highlight something.

“Doctrine of Stare Decisis” and “Settled Law”

English system of precedent is based on the Latin maxim signifying the Principle of Judicial discipline :-stare decisis et non quieta movere, which means to stand by and adhere to decisions and not disturb what is settled. Word ‘stare decisis’, connotation of binding judicial precedent, fixing parameter, if any, for making reference to a larger Bench are all devices evolved by the Courts for maintaining its own judicial discipline, modesty and propriety and to maintain its judicial comity.

This natural concomitant of inbuilt judicial discipline gives stability and uniformity in the application of law both to the issue and Courts. This keeps Courts within its bound and in spite of different opinions; adverse results for themselves the litigants follow this procedure with respect. Otherwise any settled law could be unsettled any day, making it difficult to follow, budding the judicial chaos.

In a signpost English judgment the fêted words of  Bukley, J. in Produce Brokerers Co. Ltd. v. Olym-pia Oil & Cake Co. Ltd[10],: explaining the significance of the policy of binding precedents:-

“I am unable to adduce any reason to show that the decision which I am about to pronounce is right. On the contrary, if I were free to follow my own opinion, my own powers of reasoning such as they are. I would say that it is wrong. But I am bound by authority — which, of course, it is my duty to follow — and following authority, I feel bound to pronounce the judgment which I am about to deliver.”

In India as well, naturally the self discipline rule of ‘stare decisis’ is followed by the Judges in administering justice. But this in no way is stumbling block for the development and progress of law.

As per the principle of binding judicial precedent not only decision of higher Courts are binding on the Courts lower in hierarchy, even in the same Court it binds Bench of lower number of Judges even to equal number of Judges of coordinate jurisdiction. Thus judgment of a Division Bench is binding on subsequently assumed Division Bench of co-ordinate jurisdiction (equal number of Judges). It cannot decide contrary but has an option with judicial sanction to refer it to a larger Bench.

Thus, the principle of ‘stare decisis’ or binding judicial precedent is well settled. This is more effective in the Indian Courts. As the American Supreme Court of State sits in one Bench (All the Judges sit together) there is no difficulty of conflicting judgments coming from different rooms of the same court building, but in our Courts, with the heaviness of work, the distribution of cases to Benches of different Judges, this principle has been adopted and followed for maintaining judicial decorum, propriety and discipline and also, for not unsettling the well settled law by each individual view unless it is overruled by the higher Court or a larger Bench.

“Reference” as tool of advancement of law and the “Settled Law”

“Reference” has been the most vital judicial tool for unsettling the previously settled law in India. Without “Reference” the flexibility of judicial dictums will not be possible. It is well settled that no one is flawless including the Judges rendering judgments and settling legal positions. Therefore, while maintaining the austerity of  binding judicial precedent, if such judgment is perpetuating, continuing injustice, the error of which is apparent on the face of record or against any previously binding judicial precedent, against any constitutional or statutory provisions, contrary to any settled principle of law or even with the change of social framework requires reassessment being of public significance, to set the things back on the right track another equally important principle is advanced by referring such matters to a larger Bench via Reference.

Even where the Benches of coordinate jurisdictions having a different view of any earlier such Bench, the proper course open is to request the Chief Justice to refer the matter to a higher Bench or to constitute a larger bench.

Both principles of ‘stare decisis’ and instrument of ‘reference’ are not contrary but complementary to each other, evolving and developing the law with only aspire of rendering justice. All methods, principles, procedures created by Courts to deliver justice to the subjects. In this respect there are catena of authorities  by Indian Courts which promote reference in case of conflicts and difficulties in applying binding precedent. A perusal of judicial patterns over the subject will elucidate the scenario and surroundings of scope of Reference.

 In Tribhovandas v. Ratilal[11] Hon’ble Supreme Court held:-

“(7). Before parting with the case, it is necessary to deal with certain questions of fundamental importance in the administration of justice which the judgment of  Raju. J. raises. The learned Judge observed –

(1) that even though there is a judgment of a Single Judge of the High Court of which he is a member of or a Division Bench of the High Court, he is not bound to follow that precedent, because by following the precedent the Judge would act contrary to S. 165 of the Indian Evidence Act and would also violate the oath of office taken by him. When entering upon his duties as a Judge under the Constitution: and

(2) that a judgment of a Full Bench of the Court may be ignored by a single Judge, if the Full Bench judgment is given on a reference made on a question of law arising in a matter before a single Judge or a Division Bench.  Such a judgment, according to Raju. J. would “not be a judgment at all” and “has no existence in law.”

“(8) The observation made by the learned Judge subvert the accepted notions about the force of precedents in our system of judicial administration. Precedents, which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that a single Judge of a High Court is ordinarily hound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court, The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.”

In Bhagwan v. Ram Chand[12] the Apex Court held:-

“It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to he reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the mailer to a Division Bench, or- in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.”

In this case Supreme Court deprecated and did not approve learned single Judge deciding a case against principle of Division Bench.

To the same consequence is Union of India v. Godfrey Philips India Ltd[13] giving effect to the same principle.

“….. We find it difficult to understand how a Bench of two Judges in Jeet Ram’s case could possibly overturn or disagree with what was said by another Bench of two Judges in Moti Lal Sugar Mill’s Case. If the Bench of two Judges in Jeet Ram’s case found themselves unable to agree with law laid down in Motilal Sugar Mill’s case they could have referred Jeet Ram’s case to larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a co-ordinate Bench of the same Court.”

To the same effect is State of W. B. v. Falguni Dutta[14].

“4. We may incidentally mention that when the learned single Judge was disinclined to follow the earlier two decisions of other learned Single Judges of the High Court the proper course was to refer the matter to a Division Bench for decision.”

D. K. Yadav v. J. M. A. Industries Ltd[15].  holds, once an authority to the law is laid down the same should he followed as a binding precedent, but the only alternative is, in case of difference, to refer it to the larger Bench (at p. 1999 of AIR ):–

“…..It is settled law that an authoritative law laid after considering all the relevant provisions and the previous precedents, it is no longer open to be re-canvassed the same on new grounds or reasons that may be put forth in its support unless the Court deemed appropriate to refer to a larger Bench in the larger public interest to advance the cause of justice.”

In Mohar Singh v. Devi Charan[16]  

“That was a decision which the learned Judge in the present case should have considered himself hound by unless there was a pronouncement of a larger bench to the contrary or unless the learned Judge himself differed from the earlier view in which even the matter had had to go before a Division Bench.”

In Union of India v. Raghubir Singh[17] relying on Privy Council the Hon’ble Apex Court held:

“21….. the position in India approximately more closely to that obtaining in the United States rather to the position in England where Parliament could rectify the situation by a simple majority, and to that in Australia, whore the mistake could he corrected in appeal to the Privy Council. The learned Judge observed: — “There is nothing in our Constitution which prevents from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public.”

“28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repealed affirmation over a century of time. … the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.”

In a nineties Judgment Sunderjas Kanayalal Bhathijia v. Collector, Thane[18] Hon’ble Supreme Court held:-

“One must remember that pursuit of the law however, glamorous it is, has its own limitation on the Bench. In a multi-judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. In our system of judicial review which is a part of our constitutional scheme, it is the duty of judges of superior Courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches; The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public .would be a dilemma to obey or not to obey such law and it ultimately falls into disrepute.”

In the same year holding the same principle in Shridhar v. Nagar Palika, Jaunpur[19] :-

.

“3….. as has been reiterated in a number of decisions of this Court that if a single Judge, disagree with the decision of another single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision. But in the instant case the learned Judge acted contrary to the well established principles of judicial discipline in ignoring those decisions.”

Although Courts have been reluctant in overturning the Judgments easily  as in  Distributors (Baroda) Pvt. Ltd. v. Union of India[20]

“19. But, even if in our view the decision in Cloth Traders case is erroneous, the question still remains whether we should overturn it. Ordinarily we would be reluctant to overturn a decision given by a Bench of this Court, because it is essential that there should be continuity and consistency in judicial decisions and law should he certain and definite. It is almost as important that the law should be settled permanently as that it should he settled correctly. But there may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. The doctrine of stare decisis should not deter the Court from overruling an earlier decision, if it is satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the Court.”

These authorities reflect that binding judicial precedent means a decision of the higher Bench is binding on the lower bench and even on a later co-ordinate Bench of equal number of Judges. The later such Bench cannot decide contrary to the earlier such Bench and in apt case of need of revisiting any settled law it may refer it to the higher or larger bench to settle the conflict of opinion arose over any legal issue by two or more contradictory judgments.

Defining, parameters of Reference: Judicially Settled Modalities

Despite being the most imperative tool in the development of law, Reference, has judicially been advised to be used restrictively and not frequently especially by the High Courts. The difference carved out between High Courts and Supreme Court, in making Reference, is to be judged from different perspective as- there is no further right to appeal in Supreme Court, while reference by High Court has to be restrictive as there is right of appeal against its decisions. What parameter the High Courts and Supreme Court have laid down for making Reference is interesting to note.

In State of Punjab v. Surinder Kumar[21] it has been held:-

“6. … .It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The constitution has, by Art. 142 empowered the Supreme Court to make such order as may be necessary “for doing complete justice in any case or matter pending before it”, which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.”

In one earlier Judgment of Punjab and Harayana High Court in  pritam kaur v. surjit singh[22], the following passage specifies the parameter of reference:

“The reference was answered in these terms, “it would follow as a settled principle that the law specifically laid down by the Full Bench is binding upon the High Court within which it is rendered and any and every field doubt with regard thereto does not justify the reconsideration thereof by a larger Bench and thus put the law in a ferment afresh. The ratio of the Full  Benches are and should be rested on super foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for consideration. One of the obvious reasons is where it is unequivocally manifest that its ratio has been impliedly overruled or wittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid down the law directly contrary to the same, and, thirdly where it can be conclusively said that the judgment of the larger Bench was rendered per in curium by altogether failing to take notice of a clear-cot statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a similar Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding precedent may be suggested for reconsideration.”

In  Pritam Kaur’s case (Supra) where learned single Judge doubted the decisions of earlier Full Bench, yet the Court with caution only expressed the anxiety as :-

“…does not justify the reconsideration by a larger Bench the law specifically laid down by the Full Bench; the ratio of Full Benches “are not to be blown away by every side wind.” “it is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration.”

In substance Allahabad High Court in Rana Pratap Singh v. State of UP[23] adopts reasoning and the parameters as laid down in the case of Pritam Kaur (supra), which is quoted in paragraph 15 of the judgment. The parameters, as laid down, are as following:

(a) On every veilded doubt with regard to the law laid down by a Full Bench does not justify reconsideration by a larger Bench;

(b) Where it is unequivocally manifest that the raito of Full Bench has been impliedly or directly overruled by the superior Court or larger Bench of the same Court, reference could be made:

(c) Where co-equal Bench has laid down law directly contrary to each other, reference could be made:

(d) The judgment of a larger Bench is rendered, by failing to take note of a clear-cut statutory provision or earlier binding judicial precedent, reference could be made.

Thus as per the Judicial precedents , the device of reference has to be used as Brahmhastra was used in Indian Mythological sagas. In Ambika Prasad Mishra v. State of U. P.[24], a Constitution Bench of  Hon’ble Apex Court held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not lose its authority ‘merely’ because it was badly argued, inadequately considered and fallaciously reasoned. Distinguished Krishna lyer.J. recorded it as: “Every new discovery or argumentative novelty cannot undo or compel reconsideration of a judicial precedent.”

The Judicial anxiety has been not to unsettled a settled law on personal sentiment and view of Judges. Courts are conscious that  in every oblique doubt or casually no reference should be made for unsettling a settled law.

It is unambiguous; References are to settle the law correctly. It does not set aside earlier case ruling. When precision of an earlier decision is doubted, whether it is open to a subsequent Bench of coordinate jurisdiction to refer the matter to a larger Bench to resolve the controversy authoritatively? Thus all the discussed catena of decisions points out that in the case of difference of laws settled in judgments, demureness lies in making the Reference to a larger Bench and it is not open either to a single Judge or a Bench of co-ordinate jurisdiction to embark upon taking a different view in a matter, and unsettled the things already settled by their coordinate jurisdictions.

In Bengal Immunity Company Limited v. State of Bihar[25], a seven Judges Bench of the Supreme Court assembled to consider whether the majority decision State of Bombay v. United Motors (India) Ltd.[26] Should be reconsidered and then in the majority decision, the Supreme Court observed :

“There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public.”

In this case the Supreme Court referred to the far reaching effect of the earlier decision in the United Motors (supra) on the general body of the consuming public, and concluded that the error committed in the earlier decision would result in perpetuating a lax burden erroneously imposed on the people, giving rise to a consequence “manifestly and wholly unauthorised.” The Court further observed:

“that if the decision is erroneous, as indeed we conceive it to be, we owe it to the public to protest them against the illegal tax burdens which the State are seeking to impose on the strength of that erroneous recent-decision.”

Thereafter the Hon’ble Supreme Court further cautioned that

“we should not lightly dissent from a previous pronouncement of this Court.”

In this case Hon’ble Supreme Court said, if the previous decision was manifestly erroneous, there was a duty on the Court to say so and not perpetuate the mistake. The appeal to the principle of stare decisis was rejected on the grounds that:-

(a) the decision intended to be overruled was a very recent decision and it did not involve overruling a series of decisions, and

(b) the doctrine of stare decisis was not an inflexible rule, and must, in any event, yield where following it would result in perpetuating an error to the detriment of the general welfare of the public or a considerable section thereof.

The test laid down in Bengal Immunity Co. Ltd. (supra.) was that where an order has far reaching effect and is followed that would result in perpetuating an error to the detriment of general welfare of the public, then the Court owed a duty to the public to remove-the error, at the earliest.

In Keshav Mills Company v. Commr. of Income-tax.[27], the Supreme Court of India observed that a revision of its earlier decision would be justified if there were compelling and substantial reasons to do so.

In Sajjan Singh v. State of Rajasthan[28], the Supreme Court laid down the test as: “Is is absolutely necessary and essential that the question already decided should be reopened?” and went on to observe: “the answer to this question would depend on the nature of the infirmity alleged in the earlier decision. its impact on public good and the validity and compelling character of the considerations urged in support of the contrary view”.

In Ganga Sugar Company v. State of U. P[29], Supreme Court held against the finality only where the subject was “of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong.”

Infinite authorities can be referred to replicate the trend of Judicial support to the machination of Reference in rectification and development of Law.

The essence of all the Judicial authorities is that- an error if it is so elementary and has far reaching effect in that, if  it is allowed to continue, then that would affect the interest of  society, then earlier decision should be revisited, than perpetuating the error previously committed, adducing more misery to the general public and allow the erroneous precedent to continue to hold to the field. However the Supreme Court has restrained itself from propounding any generalized formula for utilizing the device of Reference.

In Keshav Mills  (supra), the Supreme Court at page 1644 has given the concentrate of modality of reference by opining ;–

“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 revising its earlier decisions. It would always depend upon several relevant considerations.”

Conclusion:

The truth is that “settled law” is just an tremulous phenomenon that legal fraternity use to refer to Judicial precedent on a subject, indeed it is being binding to the subordinate courts and smaller benches- but only until a majority of the judges of higher bench decide that it should be overruled as per the newly arisen state of affairs for providing justice to its subject.

It materializes from the study of the law over the subject, developed through judicial authorities, that despite all Judicial strength given to exercise Reference in warranted condition, no doctrinaire approach or straight jacket formula can be universally adopted when correctness of an earlier decision is doubted and a Reference to a larger bench is sought to be made.

Therefore, the functioning of the watchful judicial system in India shows that the anomalies and inconsistencies within the conflicting judgments, which are giving rise to a sense of uncertainty and unpredictability in the society, cannot easily be overlooked, they must be resolved in time by nipping the evil in the bud.

The Indian idea of Law has been progressive and flexible. The function of law is meant to participate in solving the social problems ideally. Indian Courts by utilizing, Reference, in overturning their own static precedents have unsettled the previously settled law for becoming synchronic with the needs of modern times, thoughts and society and have emphasized that the law is always on the status of “law in the making”.

***********************************************************

[1] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. ‎(1973) 4 SCC 225

[2] Article 141:- The law declared by the Supreme Court shall be binding on all courts within the territory of India.
[3]Bengal Immunity Co. V/s State of Bihar (AIR 1955 SC 661)
[4] Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. – 2005 (2) SCC 673
[5] WRIT PETITION (Crl.) NO. 76 OF 2016 NAVTEJ SINGH JOHAR & ORS. Vs. UNION OF INDIA & connected matters

[6] (2014) 1 SCC 1
[7] http://www.oxfordreference.com/view/10.1093/oi/authority.20110803095510675

[8] Jackson ex dem. Bradstreet v. Huntington, 30 U.S. 402, 434 (1831).
[9] 7 Pa. 185 (1847)
[10] 1916 AC 314
[11] AIR 1968 SC 372
[12] AIR 1965 SC 1767 (Para 18)
[13] AIR 1986 SC 806
[14] (1993) 3 SCC 288
[15] (1993) 3 SCC 259 : (1993 AIR SCW 1995)
[16] AIR 1988 SC 1365 (Para 7)
[17] AIR 1989 SC 1933
[18] AIR 1990 SC 261
[19] AIR 1990 SC 307,
[20] . AIR 1985 SC 1585,
[21] AIR 1992 SC 1593
[22] AIR 1984 Punj & Har 113 (FB)
[23] 1995 All CJ : 200
[24] (1980)3 SCC 719 : (AIR 1980 SC 1762)
[25] AIR 1955 SC 661
[26] AIR 1953 SC 252
[27] AIR 1965 SC 1636 at page 1643-44
[28] AIR 1965 SC 845 at pp. 854-55
[29] AIR 1980 SC 286 at p. 294

Criticizing Public Function of Public Representatives by Media and Law of Defamation: An Overview in Indian Perspective

By:-Dushyant Mainali

Media have a role to play in informing the society and freedom of expression must be respected. The fundamental right of freedom of speech is involved in a criminal trial of defamation apart from the right of liberty of the press. In India Courts have time to time observed that in a democracy persons holding public offices must not be thin-skinned with reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time. At times public figures have to ignore vulgar criticisms and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same. Although we generally see when media criticizes the poor functioning of public representatives they file criminal complaints against the news correspondents and editors. Let’s sketch out the legal scenario of the subject.

Public conduct of public servants and Defamation.

Indian Penal Code has put the expression made in good faith or any opinion whatever respecting the conduct of a public servant in the discharge of his public functions beyond the ambit of offence of defamation. It falls under the exception of Section 499 of Indian Penal Code.

S.499 : Defamation

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

…………………………..

First Exception. ‘ Imputation of truth which public good requires be making or publishing. ‘It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception. ‘Public conduct of public servants. It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

It is amply clear from the perusal of second exception of Section 499 IPC that if the subject matter of the any publication is the public conduct of public servant then it falls in the exemplary category and no offence U/s 500 will  be attracted.

Doctrine of Fair Comment and Exaggerated News

In common law the Doctrine of Fair Comment is widely acclaimed. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts

To be free from the clutches of law the publication should be substantially true and the comment made in the news report should be based on the facts and should be supported by good faith. Kerala High Court in Nazeem Bavakunju V/s. State of Kerala & Ors. reported at 1988 CRI.L.J. 487, held:

“7. In case of this nature if the contents of the news item published in the newspaper are slightly exaggerated it does not make the comment unfair so long as what is expressed therein is materially true and for public benefit. The publishers of the newspaper are entitled to make fair comments. The doctrine of fair comment is based on the hypotheses that the publication in question is one which, broadly speaking, is true in fact and is not made to satisfy a personal vendetta and that the facts stated therein would go to serve the public interest. Mere exaggeration or even gross exaggeration would not by itself prove malice. It has been held in Cheriyan v. Johnson, 1969 Ker LT 597 that the important ingredient of the 9th exception to S.499, I.P.C. is that the report made is substantially true and that the comment made basing on the facts, is supported by good faith.”

Existence of criminal intention is must for prosecution under Sec. 500 IPC.

Existence of criminal intention is sine qua non for prosecution under Sec. 500 IPC. If the accused establishes that there is no malice, against the complainant, while reporting the performance of a public representative if the news writeris acting in good faith or public good he will not fall under the act of defamation. In Ramoji Rao, Chairman Ramoji Group of Companies and Anr. Vs. State of Andhra Pradesh; 2006(8) SCC 321, the Supreme Court of India has held:

“3.Though many points were urged in support of the appeal, learned counsel for the appellants submitted that actually there was no intention in any manner to harm the reputation of the Chief Minister, of the ministers or the officials and, therefore, continuance of the proceedings would not be in public interest.”

There will be no preponderance of probability or occasion to draw a prima facie conclusion to summon the writer under Section 500 I.P.C. if the Magistrate forms a prima facie opinion that there was no intention in the minds of the applicants to harm the reputation of the complainant knowingly and willfully.

Hon’ble Supreme Court in S. Khushboo Vs. Kanniammal and another; (2010)5 SCC 600, wherein it considered the necessity of showing intention to harm the reputation and held as:

“34.It is our considered view that there is no prima facie case of defamation in the present case. This will become self-evident if we draw attention to the key ingredients of the offence contemplated by Section 499 IPC, which reads as follows: (the Court then quoted Section 499 of I.P.C. and observed 🙂 The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm……”

Thus in a complaint of defamation the complainant is required to show that the accused persons as editor and publishers of newspapers harbored the intention to harm the reputation of the complainant.

Liability of Editor under Press Registration and Books Act

There is a regular course of business of printing and publishing news in newspapers. News are collected by the reporters and sent to the office of the newspaper. The News Editor or his assistants deals with such news items and they take the decision to publish it in the newspaper. Inputs thus obtained are assembled, collected, scanned by the News Editor and his assistants. The News Editor generally takes the decision to allow its publication.

Law recognizes this distribution of work inside a press establishment or a media house. Editor of the newspaper has been made responsible under section 7 of the Press and Registration of Books Act 1867. A newspaper has to issue a declaration of this effect disclosing the name of the editor responsible for selection and editing of all the news items of the edition of the newspaper under PRB Act. S.7 of the Press and Registration of Books Act, 1867 is reproduced :-

S.7. Office copy of declaration to be prima facie evidence

Office copy of declaration to be prima facie evidence In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, or, in the case of the Editor, a copy of the newspaper containing his name printed on it as that of the Editor shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration, or the editor of every portion of that issue of the newspaper of which a copy is produced.

It is very well settled law as held by Hon’ble  Apex Court in K.M. Mathew Vs. State of Kerala reported in (1992)1 SCC 217:-

“the presumption under S.7 of the PRB Act is only against the person whose name is printed as editor as required under S.5(1). There is mandatory (though rebuttable) presumption that the person whose name is printed as Editor is the editor of every portion of that issue of the newspaper of which copies are produced. Section 1(1) of the Act defines Editor to mean the person who controls the selection of the matter that is published in the newspaper. Section 7 raises the presumption in respect of a person who is named as Editor and printed as such an every copy of the newspaper. The act does not recognize any other legal entity for raising such presumption. Even if the name of the Chief Editor printed in the newspaper there is no presumption against him under section 7 of the Act.”

It has further been held by the Hon’ble Court that “for a Magistrate to take cognizance of offence as against the Chief Editor there must be a positive averment in the complaint of knowledge of the objectionable character of the matter.”

Therefore as per the settled position of law in the light of judicial pronouncements of the Hon’ble Apex Court printer publisher or other persons cannot be summoned to face trial under section 499 or 500 IPC against whom a presumption under S.7 of PRB Act is not available.

Conclusion:-

In a Complaint of Defamation under Section 500 unless a positive averment has been made against someone in the complaint only the Editor of a Newspaper whose name has been declared for the selection and edition of news as per Section 7 of the Press and Registration of Books Act 1867 can be prosecuted and in his defense he has to establish that he has acted in good faith and in the interest of public, and there was no animus in his mind against the complainant and the allegations pertain to the public functioning of the Politician.

Thus Law in India derives is loud and clear that if upon such complaints by public representatives action can be maintained against a newspaper, it can be maintained against every private citizen who ventures to criticize the MLA or Minister who are temporarily conducting the affairs of the government. In a free democratic society those who hold public office through elections or in the government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.