Unfolding the word: Indian Experience
In-Town v. Eisner (1917) 245 US 418, Mr. Justice Holmes said that “a word is not a crystal, transparent and unchanged; it is the skein of a living thought and may vary greatly in colour and content according to ten circumstances and the time in which it is used”.
The anxiety of India Constitution makers to ensure that justice promised in the Preamble of the Constitution is pure and is not in any manner polluted by executive or political interference is writ large on the face of the Constitution. Extraordinary powers have been conferred on the Supreme Court and the High Courts under Articles 32 and 226, respectively, manifesting the confidence of the people in the courts’ ability to do justice[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]
In A. K. Gopalan v. State of Madras, (1950) SCR 88, that in Art. 21, the word ‘law’ has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice, and ‘procedure established by law’ means procedure established by law made by the State, that is to say, by the Union Parliament or the Legislatures of the States. Section 4 has been enacted by Parliament and therefore it must be held that what it lays down is a procedure established by law.
The High Court has dealt with this contention. It has rightly pointed out that the amplitude of the words “due course of justice” used in Section 13 is wider than the words “due course of any judicial proceeding” or “administration of justice” used in sub-clause (ii) or (iii) of Section 2 (c). We have held that the contempt of court committed by the appellant falls both under sub-clause (i) and also within the amplitude of sub-cl. (iii) If the act complained scandalizes the judicial officer in regard to the discharge of his judicial functions, it thereby substantially interferes or tends to interfere with the “due course of justice” which is a facet of the broad concept of the “administration of justice”, and as such, is punishable under Section 13[AIR 1981 SC 755]
In N. Narayanan v. Semmalai, (1980) 1 SCR 571 the same principle has been reiterated. That was a case where the difference of votes between the candidate declared elected and his nearest rival. who filed an election petition was only 19 votes and which figure would have come down to 9 votes only if the postal ballots were included. Even so this Court after referring to a number of decisions and Halsbury’s Laws of England and Fraser on Law of Parliamentary Elections and Election petitions held that without their being an adequate statement of all the material facts on which the allegations of irregularity or illegality in. counting of votes are founded and such averments being backed by acceptable evidence and the Court trying the petition being prima facie satisfied that an order for recount of votes is imperatively necessary to decide the dispute and do complete justice between the parties, an order of recount of votes cannot be passed[AIR 1989 SC 640 ]
In S. Nagaraj v. State of Karnataka, JT 1993 (5) SC 27 to which one of us (S. Ratnavel. Pandian, J.) was a party, the following observation has been made while emphasising the power of this Court either recalling or reviewing its own order:
“Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Art. 137 of the Constitution. And C1. (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review and order in civil proceedings on grounds analogous to Order XLVII, Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”[AIR 1994 SC 268]
Reading Guide
- Aristotle (c.mid 4th century BC) Nichomachean Ethics, trans. D. Ross, revised J.L. Ackrill and J.O. Urmson, Oxford: Oxford University Press, 1980.
- Barry, B. (1995) Justice as Impartiality, vol. 2, A Treatise on Social Justice, Oxford: Clarendon Press.
- Cicero, M.T. (c.54-51 BC) De Re Publica, trans. C.W. Keyes, Cambridge, MA: Harvard University Press and London: Heinemann, 1928.
- D’Entrèves, A.P. (ed.) (1948) Aquinas: Selected Political Writings, Oxford: Blackwell.
- Dworkin, R. (1981) ‘What is Equality? Part 1: Equality of Welfare; Part 2: Equality of Resources’, Philosophy and Public Affairs
- Gauthier, D. (1986) Morals By Agreement, Oxford: Clarendon Press.
- Hirsch, A. von (1990) ‘Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?”’, Criminal Law Forum 1 (Winter)
- Hobbes, T. (1651) Leviathan, ed. R. Tuck, Cambridge: Cambridge University Press, 1991.
- Hume, D. (1739-40) A Treatise of Human Nature, ed. L.A. Selby-Bigge, Oxford: Clarendon Press, 1978.(See especially Book 3 Part 2 for a discussion of justice.)
- Hume, D. (1748 and 1751) Enquiries Concerning Human Understanding and Concerning the Principles of Morals, ed. L.A. Selby-Bigge, Oxford: Clarendon Press, 1975.
- Kymlicka, W. (1990) Contemporary Political Philosophy: An Introduction, Oxford: Clarendon Press.
- Marx, K. and Engels, F. (1968) Marx/Engels: Selected Works in One Volume, London: Lawrence & Wishart. (Contains extracts of many of Marx’s most famous tracts. For a denunciation of the whole idea of justice see the ‘Critique of the Gotha Programme’)
- Mill, J.S. (1861) ‘Utilitarianism’, Collected Works of John Stuart Mill, vol. X, Essays on Ethics, Religion and Society, ed.
- J.M. Robson, Toronto: University of Toronto Press, 1969.
- Nagel, T. (1991) Equality and Partiality, New York: Oxford University Press.
- Noddings, N. (1984) Caring: A Feminine Approach to Ethics and Moral Education, Berkeley, CA: University of California Press.(Leading feminist theorist who argues for the replacing of the ethic of justice with an ethic of care.)
- Nozick, R. (1974) Anarchy, State, And Utopia, New York: Basic Books.
- Plato (c.380-367 BC) Republic, trans. R. Waterfield, Oxford: Oxford University Press, 1993.
- Rawls, J.B. (1971) A Theory of Justice, Cambridge, MA: Harvard University Press.
- Rawls, J.B. (1993) Political Liberalism, New York: Columbia University Press.
- Rousseau, J.-J. (1755) A Discourse on Inequality, trans. M. Cranston, armondsworth: Penguin, 1984.
- Sandel, M.J. (1982) Liberalism and the Limits of Justice, Cambridge: Cambridge University Press.
- Scanlon, T.M. (1982) ‘Contractualism and Utilitarianism’, in A. Sen and B. Williams (eds) Utilitarianism and Beyond, Cambridge: Cambridge University Press.
- Scanlon, T.M. (1988) ‘The Significance of Choice’, in S.M. McMurrin (ed.) The Tanner Lectures on Human Values, vol. 8, Salt Lake City, UT: University of Utah Press, 151-216.
- Waldron, J. (ed.) (1987) Nonsense on Stilts, London: Methuen.
- Walzer, M. (1983) Spheres of Justice: A Defence of Pluralism and Equality, New York: Basic Books; London and Oxford: Blackwell.