Sub heading:
There is no finality now either in law and judicial pronouncements. The
thumb rule is that you show me the face and I show you the rule or a ruling
Stare
decisi et non quieta movere. It is a Latin legal phrase that means: Stand by decisions and do not
disturb the undisturbed. It is this principle of ‘stare decisi’ that has for
centuries given to the countries guided by common law, like Britain and the US,
a near-unfailing predictability of outcome of cases. It became a cardinal
principle in law in Britain since the 17th century, when Royal whims were cut
short by a famous regicide. In the US, justice became thoroughly
precedent-driven after 1800, with printed accounts of cases becoming readily
available across the country. Britain had to wait a few decades more for the
‘bar libraries’ to get lined with case reports. So have we, supposedly
Britain’s ardent followers in judicial practices, as we too identify the places
connected with courts, including lawyers’ chambers, with the rows of hardbound
spines of the ‘All India Reporter’ (AIR).
But does our judicial system respect
precedents as much it should? Sadly, it is not so. Results of cases in India
are a gamble, more or less. As late as 2010, the apex court decided that even
though the standards of medical education are somewhat flexible in the private
medical colleges, which are about as many in number as the government-run ones,
the future medical doctors of the country must be all of a reasonably high
cerebral quality—a demand that called for their qualifying in a nationwide
entrance test for medical colleges, on the model of the joint entrance test for
engineering colleges. But there was no finality is this view. Last week, the
outgoing Chief Justice of India ruled, with a majority of two in a three-judge
bench, that there would be no National Eligibility-cum-Entrance Test (NEET)
across the board for MBBS, BDS and MD courses, and that the private medical
colleges are free to set their own standards for admission. If it is in
exchange of hefty capitation fees, as is the practice now, so be it. With all
due respect to the Hon’ble court, it can be said that the judgment has put the
medical education entrepreneurs’ urge for money above the ordinary citizen’s
right to quality treatment, and therefore life. It is heard that a review
petition from the government is in the offing, and that may lead to a judgment
being overturned not once but twice. The Law Minister wants an amendment in the
Medical Council of India rules to reverse the judgment.
However, reservation being an
electoral issue affecting all parties, it was not difficult for the government
of the day to soon enact the Central Education Institutions (Reservation in
Education) Bill 2006. By 2008, as the matter was referred to the court again as
a law finally passed by Parliament, the latter, even though it is armed with an
enlarged jurisdiction, under Art 138, with respect to any matter, such as this
one, on the Union List, however, got the stay vacated. Of course it ordered
that the ‘creamy layer’ of OBC must not be considered for reservation. But it
was cold comfort to candidates in the general category who had expected that
they could just about make the grade. Vote-hungry legislators took away over a
quarter of the seats in respectable technical centers to those who trusted
merit, and nothing else, but the highest court did not subject the new law to
close judicial scrutiny. If the OBC reservation in IITs, IIMs and AIIMSs did
threaten to “perpetuate backwardness”, how could the opinion get reversed
because Parliament had put its stamp on such reservation? Why is the judiciary changing its views so abruptly on issues that
involve curtailment of citizens’ freedom of choice to imbibe specialized
knowledge or skill?
However, it must be said to the credit
of the judiciary that the principle of stare
decisi is not always welcome,
particularly in a nation as fluid as India. If precedent were to remain the
pole star of India’s judicial system, there would have been no such expansion
of people’s power as is evident through Public Interest Litigation; nor would
the court stand behind and empower institutions like the Election Commission,
the Comptroller and Auditor General, and now, even the CBI, which the Supreme
Court has called “caged parrot”, and is trying to unshackle it. The
investigation agencies have been brazenly changing their stance making a mockery of
criminal justice system. Be it the DA case of Mayawati or handling of the
Mulayam Singh’s case of amassing wealth or even Ishrat Jahan fake encounter and
others. The face of a person is more important than the rule or precedent.
More mature societies with an advanced
judicial system give a lot of importance to precedents, but it is wrong to
think that past judgments in those countries are set in stone. The famous Roe V
Wade US judgment of the 1970’s overturned the centuries-old ban on abortion
rights of pregnant women. It drastically reduced the numbers of unwed mothers,
urban destitution and incidents of crime. Similarly, the US Supreme Court
turned down a 19th century
judgment that allowed “similar but separate” state facilities to blacks. It
ended segregation by a stroke of pen.
Such bold departures are welcome as
they respect the society’s changingaspirations
and requirements. But Indian courts are denying finality in their judgments in
ways that are pointless, to say the least. It results in blatant miscarriage of
justice. Buildings in the capital are demolished and sealed one day just
because a court ordered it. The judge goes, and bigger buildings return after
being de-sealed. Citizens’ right to justice is not a plaything.
(The author is National Editor of
Lokmat group of newspapers in Delhi)
