THE REGURGITATION THEORY

Our justice delivery system is paying a great price for what the founding fathers did with a laudable objective, namely, to ensure consistency and certainty in law. However, they must be turning in their graves, because of the violence we have done to Article 141. It is time for a rethink

- Mathews J Nedumpara

Article 141 in the Constitution of India 1949: The law declared by the Supreme Court shall be binding on all courts within the territory of India.

LAW is a simple subject. It ought to be simple, because it is all about regulating the conduct of our society, institutions and government. It does not require a great intelligence to understand that it cannot be as complex as rocket science. However, if you enter a lawyer's chamber, you will find tomes of law reports, textbooks and commentaries. Judgments in simple cases, for instance, arising out of a dishonour of a cheque, matrimonial dispute, bail, recovery of debt due to a bank, sometimes run into hundreds of pages. Why?

Often a lay litigant-possibly involved in a cheque bounce case or a motor accident case or a matrimonial dispute-will find nary a reference to the particular case in point, but hundreds of pages of extraction after extraction of cases decided in the past between third parties instead. The litigant is aghast, and wonders why the judge has taken so much time to discuss some past cases where he has discussed practically nothing about his own case.

However, lawyers and judges find nothing wrong with this.

Why do lawyers and the litigants perceive things so differently? The reason is simple. Lawyers, from the very first day of their practice, find their seniors citing large number of judgments in support of their respective cases and the judge listening to them patiently and religiously, referring to the judgments that were cited, nay, quoting them extensively. He would have found that seniors are unable to argue more than one or two minutes without citing judgements, even on a simple issue, such as nonobservance of principles of natural justice. There are only two principles of natural justice: (a) hear the other side (b) nobody shall be a judge of his own cause. But there are thousands upon thousands of reported judgments on the same issue.