A justice more complete

SC promises closure in Babri demolition case. But what of the perils of memory and age, the problem of delay?

Written by UPENDRA BAXI | Published:April 24, 2017 12:11 am
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It is said that the mills of God grind slowly but they grind fine. This is true of human law and justice as well. The Supreme Court of India very recently ruled that it was justified to act under the constitutional mandate to do complete justice and restart the criminal justice process against senior BJP leaders and cadres in the Babri Masjid demolition case, despite the lapse of a quarter-century.

It clubbed all the cases to Additional Sessions Judge (Ayodhya Matters) at Lucknow; it restored conspiracy charges against some leaders, which were earlier dismissed, and ordered that the judge shall complete the trial within two years. It also directed that the judge would not be transferred in this period and may receive the completed testimony of all those who have testified before a Rae Bareli court.

There is already a thriving political discourse around this decision. Some commentaries speculate about why the present regime allowed the CBI appeal against a 2010 high court order, overlooking the Supreme Court observation that the agency was like a “caged parrot”. Almost everyone then agreed that the agency should act autonomously — now it stands indicted when it seems to act relatively autonomously! But the pundits are undeterred. Some say that the revival of prosecution for conspiracy was a way to control intra-party rivalry, to eliminate L.K. Advani as a presidential candidate. Some others take the view that the two year period coincides with the prospects in the next general election.

The Supreme Court, correctly, was not concerned with all this. What mattered were the legal principles and juristic interpretation, not political motives or fallout. Proper trial, conviction, and acquittals were necessary lest “the secular fabric of the Constitution” be ever torn. Although the apex court does not say this expressly, it takes seriously all threats to the structure and essential features of the Constitution — a judicial doctrine limiting Parliament’s otherwise plenary powers to amend the Constitution.

How far the court’s power to do complete justice should go was a principal juristic question in this case. The court held that the rights to free and fair trial were not affected by lateral transfer from one court to another. No right to appeal to a higher court was here entailed, as it is in situations of a vertical transfer. But the scope of Article 142(1), the power to render complete justice, was severely contested.

Justices Rohinton Nariman and Pinaki Chandra Ghose explicitly agree that the power to do complete justice merely supplements the enacted law and does not supplant it. But it is an unusual power, not having “any counterpart in any other Constitution world over”. The Latin maxim fiat justitia ruat cælum (let justice be done even if the heavens fall), the court ruled, “is what first comes to mind on a reading of Article 142”.

The power under Article 142(1) is “very wide” and is to be exercised with due care and caution, as an affair of equity and not of strict law.

K.K. Venugopal argued strenuously that the Supreme Court’s power is “circumscribed” by Section 406 of the CrPC that authorises transfer only from a criminal court subordinate to one high court to another criminal court of equal or superior jurisdiction. But their Lordships ruled that “clearly” that section “does not apply” to the present case “as the transfer is from one criminal court to another criminal court, both subordinate to the same high court”.

However, we must await an uncertain future in search of an answer to the question: May a high court’s power to transfer cases be affected by Article 142(1)? The court offers a welcome clarification: Unlike Article 141 (the law declared by the Supreme Court shall be binding on all courts within the territory of India), Article 142 declares no binding law. SC judgments have “two components — the law declared which binds courts in future litigation between persons”, and the “doing of complete justice” in any cause or matter which is pending before it.

It is, in fact, “an article that turns one of the maxims of equity on its head, namely, that equity follows the law”. But were this inversion to be wholly correct, may the SC do “complete justice” without regard to any binding law, other than the law declared by it? Surely, this perspective requires further constitutional chastening.

The decision is also interesting for its handling of the issue of judicial delay. The SC squarely holds the CBI responsible for not appealing against governmental orders that refused, contrary to the high court judgment of February 12, 2001, to cure a technical error in notification. It also holds the state responsible for not so doing.

Yet, it also seems that the SC failed to act when a SLP filed by one Mohd Aslam alias Bhure on February 12, 2001, stood dismissed (November 29, 2002). Dismissed also was the review by a speaking order (March 22, 2007) and a curative petition (on February 12, 2008). But given the concern over judicial delay, one may ask: Why so? Does not the maxim fiat justitia extend to all, including social action litigation matters? The task of the examination of 656 witnesses within 564 working days seems uphill, but it now stands mandated by the apex court.

No one is held guilty of violation of the law. Constitutional propriety raises the question of whether high constitutional dignitaries should resign their offices — a question that seems left to the incumbents. They may, or may not, follow the dictates of the Rajdharmaparva of the great Mahabharata.

Fiat justitia is the cardinal maxim of law and justice in situations of mass violence and criminality. From Nuremberg onwards, genocide, ethnic cleansing and other war crimes are tried regardless of law’s delays. While some debate whether desecration of constitutional secularism is a comparable radical evil, and others celebrate the promise of justice, the perils of memory and age, and the problematic of inter-generational justice also need urgent attention.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi

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