The Hindu Business Line : Relationship between Supreme Court and High Courts — Let common good guide us in testing times

What is the relationship between the apex court and the high courts? Delivering a judgment, the Supreme Court's Mr Justice R. C. Lahoti said: "The Constitution has clearly divided the jurisdiction between the two institutions and while doing so, these institutions have to have mutual respect for each other... The High Court is not a court `subordinate' to the Supreme Court." More affectionately, "if the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has a larger jurisdiction but the Supreme Court still remains the elder brother."

IT is not often that the apex court and a High Court engage in a wordy exchange, but when they do, it is something worthy of observation.

Now, this is about a verdict that was out about a month ago, in Tirupati Balaji Developers Pvt. Ltd. and Ors. Vs. State of Bihar and Ors, decided by Justices Mr R. C. Lahoti and Mr Ashok Bhan. In focus was the Constitution, more particularly Articles 132 to 136, 139A, 141, 144, 226 and 227.

The judgment of Mr Justice Lahoti begins with a narration of how the Patna High Court was "feeling concerned over the drainage system, the sewerage system, the drinking water supply system, the kerb on the road being in shambles and reallocating of footpaths". It, therefore, chose one road as "model habitat area, to set an example for other roads". To this end, the High Court passed orders that, among other things, had the effect of restraining "construction work on the entire stretch of the public street, the Bailey Road, within 110 feet from the centre of the road on either side".

Those affected by the embargo approached the apex court in 2002 for remedy, but their appeal got dismissed and the petitioners were advised to approach the High Court for a solution. They came back to the Supreme Court in 2003, "on account of their applications to vacate the stay not being taken up for hearing by the High Court," and submitted a chart setting out the amount of monetary loss which they had already suffered and were continuing to suffer month by month.

Therefore, "a three-Judges Bench presided over by the Chief Justice of India, after hearing the learned counsel for the parties appearing, and in their anxiety for ascertaining if the averments made by the petitioners were correct, called for a response from the High Court." And the order was communicated by the Registry of the Apex Court to the Registrar-General of the High Court.

Where things turned sour

Here, the matter took a sharp turn, because the High Court took strong exception to the Apex Court's order, "forming an impression" that the latter had "directed" it to "give an explanation". Mr Justice Lahoti's judgment has a few excerpts from the order dated December 3, 2003 passed by the Division Bench of the High Court.

Let us not get into them because towards the end of the judgment on hand, Mr Justice Lahoti orders: "We direct all those passages which have been extracted and reproduced in the earlier part of the judgment, from the order dated 3.12.2003 passed by the Division Bench of the High Court, to be expunged and scored out as derogatory of this Court, disparaging, totally uncalled for and making observations on the proceedings of this Court which the High Court should not have made. Such remarks should not continue to be retained on the record of the High Court as a Court of record."

Brothers in administration of justice

Keeping that apart, the judgment is a treasure because Mr Justice Lahoti explores the relationship of the Supreme Court with the High Courts. They are "as two august judicial institutions functioning under the Constitution," he says. "The High Court is not a court `subordinate' to the Supreme Court." More affectionately, "If the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother."

That a superior forum has jurisdiction "to reverse, confirm, annul or modify" the decree or order of the lower forum appealed against is only too well known. What happens when there is a failure on the part of the lower forum "to carry out such directions or show disrespect to or to question the propriety of such directions"? Sadly, that would be "destructive of the hierarchical system in administration of justice" and "the seekers of justice and the society would lose faith in both".

Let us not forget that "so far as the appellate jurisdiction is concerned, in all civil and criminal matters, the Supreme Court is the highest and the ultimate court of appeal. It is the final interpreter of the law." The judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted, is a one-liner of import. "The better wisdom of the court below must yield to the higher wisdom of the court above."

Also, there are "provisions which give an edge, and assign a superior place in the hierarchy, to Supreme Court over High Courts." For instance, Article 139-A empowers the Apex Court to transfer any case pending before one High Court to another High Court or may withdraw the case to itself. Article 141 makes the law declared by the Supreme Court binding on all courts, including High Courts, within the territory of India. And Article 144 mandates that all authorities, civil and judicial, in the territory of India — and that would include High Court as well — shall act in aid of the Supreme Court.

Of all the Articles with regard to the Apex Court's powers, "it is Article 136 which is worded in the widest possible terms," notes the judgment. "It is an extraordinary jurisdiction vested by the Constitution in the Court with implicit trust and faith, and extraordinary care and caution has to be observed in the exercise of this jurisdiction." Article 136 vests a vast discretion in the Supreme Court, clarifies Mr Justice Lahoti, and it is "meant to be exercised by the considerations of justice, call of duty and eradicating injustice."

Wisdom of the Founding Fathers

On the `justice delivery system' devised by the `Founding Fathers of the Constitution', Mr Justice Lahoti says that it is one homogenous in content, taking care of independence and hierarchy both, and holding the scales of balance even while doing so.

"The Constitution has clearly divided the jurisdiction between the two institutions and while doing so these institutions have to have mutual respect for each other," is a sentence in paragraph 18, an essential read. "The framers of the Constitution did not think it necessary to specifically confer power on the Supreme Court to give a command to the High Court for they were the men of vision and foresight. They knew that all the constitutional functionaries and institutions would act in the best interest of norms and traditions consistent with democracy and constitutionalism, set down in and discernible from the Constitution and as handed down by history and generations of judges. Everyone would, it was expected, keep within its bounds and would not overstep its limits so that the idea is and the values remain a living reality and do not become either an intrusion or an illusion.

"The constitutional and democratic institutions, complementing and supplementing each other, would lend strength to these handed down traditions and would also contribute to also developing such rich traditions as would be respected and hailed by posterity. This would result in strengthening the working of the Constitution. In the realms of constitutionalism the values of mutual trust and respect between the functionaries, nurtured by tradition, alleviate the need to codify the rules of the relationship."

One may wonder if by not codifying there could be confusion. Here's the answer: "Experience shows that any rigid codification of such delicate relationship is advantageous to those bent upon vilification. A rigid written law makes it difficult to maintain that dignity which is better and rightly left to be perceived by right-minded people who zealously uphold the dignity of others as they do their own."

After explaining the rationale of the foundation in simple terms, Mr Justice Lahoti moves onto finer aspects in paragraph 19: "An institution dealing with another institution under the Constitution shall have to observe grace and courtesy. No judge shall criticise another judge and certainly not strongly."

It is not as if departure does not need correction. It is obligatory on an appellate forum to correct such deviation, notes the court. However, the corrective step is to be "taken carefully with courtesy and respect and not by way of harsh criticism."

Slumbering beast in us

Citing from Selected Writings of Benjamin Nathan Cardozo, Mr Justice Lahoti mentions "a little bitter truth" — of the official-in-judge being permitted to swallow up the man-in-him." There have been judges in the past who suffered that disaster. However, what Cardozo has in mind is something more than `the egotism that displays itself in harsh and overbearing manners, in explosive vigour of voice, etc.

Exuberances such as these are at times the result of infirmities of temper not unknown altogether to the bench though happily uncommon; more often they are the defensive appliances of weakness or incapacity, conscious of its failings, and hopeful to divert attention by what seems to be a manifestation of its strength'."

How true! But here is Cardozo: "The slumbering beast is in us, and may be waked to life and fury if we feed him overmuch. The ravening official will seek to swallow up the man." For him, "one would have to be a pretty hardened sort of sinner to be guilty of the particular form of wrongdoing that has its origin in the pride of office."

And there is no great virtue in not being a sinner: "Virtues are important in the inverse order to the credit that is due to those who cultivate and practise them. No one of us struts about with satisfaction for the self-restraint involved in refraining from the crime of homicide, yet if the importance of the virtue were the measure of the credit we should all be crowing and cawing with the pride of moral excellence." Don't forget to look for Cardozo in the bookshop when you go out next.

Court language

The Supreme Court is called upon to issue directions, but it cautiously abstains from issuing any `directions', choosing instead "the alternative and polite expressions like — `we request the High Court', `the High Court is expected to', and `we trust and hope that the High Court will/shall'." This is due to "courtesy and the respect and regards" that the Supreme Court has for High Courts, explains the verdict.

"The practice has developed and gained ground as tradition. Barring may be an instance or two, which too must have been avoidable, there has been no occasion either for any disrespect having been shown by the Supreme Court to the High Court or vice versa or for this Court having been called upon to take cognizance of any instance of disrespect shown to it by any High Court."

Collegiality, humility in testing times

Mr Justice Lahoti refers to Justice Harry T. Edwards of the US Court of Appeals to emphasise judicial self-restraint to generate and to preserve judicial independence. In this context, Harry's favourite term is `collegiality': "By collegiality I mean an attitude among judges that says, we may disagree on some substantive issues, but we all have a common interest and goal in getting the law right... We are, in a word, one another's colleagues. An attitude of collegiality means, in practice, that we respect one another's views, listen to one another, and, where possible, aim to identify areas of agreement."

Also, he explains that even when a judge disagrees with another judge, he must recognise that their endeavour is common.

Then, there is the evergreen Oliver Wendell Holmes Jr, who finds a place in this essay of the apex court, to highlight humility. "I ask myself, what is there to show for this half lifetime that has passed? ... We are lucky enough if we can give a sample of our best and if in our hearts we can feel that it has been nobly done."

Mr Justice Lahoti observes that cooperation can be achieved and tension avoided between two judicial institutions "if only judicial collegiality is learnt, nobility prevails and Holmes' humility rules."

There is also a quote from the Preamble to the draft Constitution presented to the Constituent Assembly by Sir B.N. Rau: "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution".

On this, the Supreme Court said: "In our opinion, it is the concept of the common good which ought to guide us — as institutions and as individuals — in testing times."

Lest history forgets to record

It would be all right for legal historians to record this as a case that arose "merely on account of an innocuous communication" where it became necessary for a High Court "to engage a lawyer of its own" and where the judges of the Supreme Court were "not feeling too happy" to pass the order. They may also add that this was an "avoidable" case on how not to "make a mountain out of a mole hill", so much so the judgment had to wrap up with "the good hope that there would be no other occasion for this Court to make such an order".

But let them also record that this was a judgment that spoke succinctly on subtler aspects of judicial system that are often taken for granted.

dmurali@thehindu.co.in