This is an edited excerpt from the judgment of Justice Krishna Iyer in the case of P.S.R. Sadhanatham v. Arunachalam (1980)
Article 21, in its sublime brevity, guardians human liberty by insisting on the prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom. And those procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi’s case. So, it is axiomatic that our constitutional jurisprudence mandates the State not to deprive a person of his personal liberty without adherence to fair procedure laid down by law.
The question is whether there is any procedure, fair or otherwise, which enables a kindly neighbour who is not a complainant or first informant, to appeal to the Supreme Court against an allegedly erroneous acquittal by the High Court.
The view that a wrong done to anyone is wrong done to oneself
There is a spiritual sensitivity for our criminal justice system which approves of the view that a wrong done to anyone is a wrong done to oneself, although for pragmatic considerations the law leashes the right to initiate proceedings in some situations. Again, ‘justice is functionally outraged not only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. The deep concern of the law is to track down, try and punish the culprit, and if found not guilty, to acquit the accused.
It is imperative under Art. 21 that there should be some civilised procedure for holding a man guilty and depriving him of his liberty. Undoubtedly, Supreme court, if it grants leave under Art. 136 and eventually finds him guilty, deprives him of his liberty; and so the crucial question that falls for decision is as to whether there is any procedure as predicated by Art. 21 independent of or implicit in Art. 136. It is apparent that there is no statutory provision which creates a right of appeal in favour of a stranger enabling him to challenge an acquittal by the High Court.
The Criminal Procedure Code does not create such a right of appeal and, speaking generally, a right of appeal is the creature of statute. So it is submitted that before the court may grant special leave under Art. 136 there must be an antecedent right of appeal, absent which the question of leave by the court does not arise. The argument is ingenious but inference is fallacious
The Scop of Article 136
An insightful understanding of the sweep, scope and character of Art. 136 will easily dispel the dichotomy between an antecedent right of appeal and a subsequent grant of leave, which is the corner-stone of the contention of the petitioner. The jural reach and plural range of the judicial process to remove injustice in a given society is a sure index of the versatile genius of law-in-action as a delivery system of social justice. By this standard, our constitutional order vests in the summit court a jurisdiction to do justice, at once omnipresent and omnipotent but controlled and guided by that refined yet flexible censor called judicial discretion.
This nidus of power and process, which master-minds the broad observance throughout the Republic of justice according to law, is Art. 136. Specificity being essential to legality, let us see if the broad spectrum spread-out of Art. 136 fills the bill from the point of view of “procedure established by law”. In express terms, Art. 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the court.
The question is whether it spells by implication, a fair procedure as contemplated by Art. 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extra ordinary in its amplitude, its limit, when it chases injustice, in the sky itself. Supreme court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Art. 136. Is it merely a power in the Court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise? Is there no duty to Act fairly while hearing a case under Art. 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal?
We have hardly any doubt that there is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Art. 136 confers jurisdiction on the highest court. The founding fathers unarguably intended in the very terms of Art. 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well-established by precedents in our jurisprudence. Judicial discretion is canalised authority not arbitrary eccentricity.
It is manifest that Art. 136 is of composite structure, is power-cum-procedure-power in that it vests jurisdiction in the Supreme Court, and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process. In short, there is an in-built prescription of power and procedure in terms of Art. 136 which meets the demand of Art.21.
We may eye the issue slightly differently. If Art. 21 is telescoped into Art. 136, the conclusion follows that fair procedure is imprinted on the special leave that the court may grant or refuse. When a motion is made for leave to appeal against an acquittal, Supreme court appreciates the gravity of the peril to personal liberty involved in that proceeding. It is fair to assume that while considering the petition under Art. 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave.
When this conspectus of processual circumstances and criteria play upon the jurisdiction of the court under Art. 136, it is reasonable to conclude that the desideratum of fair procedure implied in Art. 21 is adequately answered. Once we hold that Art. 136 is a composite provision which vests a wide jurisdiction and, by the very fact of entrusting this unique jurisdiction in the Supreme Court, postulates, inarticulately though, the methodology of exercising that power, nothing more remains in the objection of the petitioner. It is open to the Court to grant special leave and the subsequent process of hearing are well-established.
Court’s limitation to invoke the power
Thus, there is an integral provision of power- cum-procedure which answers with the desideratum of Art. 21 justifying deprivation of life and liberty. The wider the discretionary power the more sparing its exercise. Times out of number Supreme court has stressed that though parties promiscuously ‘provoke’ this jurisdiction, the Court parsimoniously invokes the power. Moreover, the Court may not, save in special situations, grant leave to one who is not eo nomine a party on the record. Thus, procedural limitations exist and are governed by well-worn rules of guidance.
Court can be trusted to bear in mind time-honoured practices and the values of Art. 21. But no dogmatic proscription of leave under Art. 136 to a non-party applicant can be laid down inflexibly. For access to justice is not a cloistered virtue. It is true that the strictest vigilance over abuse of the process of the court, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should not be granted ‘visa’. It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from Supreme court may result in irretrievable injury to life or liberty.
Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to Supreme court under Art. 136 even though the justice of the lis may well justify it. While “the criminal law should not be used as a weapon in personal vendettas between private individuals”, as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression ‘standing’ is necessary for Art. 136 to further its mission.
The Liberalisation of the concept of ‘Aggrieved Person’
In our view, the narrow limits set, in vintage English law, into the concept of ‘person aggrieved’ and ‘standing’ needs liberalisation in our democratic situation. In Dabholkar’s case Supreme court imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards ‘standing’ in the famous case of Baker v. Carr. Lord Denning, in the notable case of the Attorney-General of the Gambia v. Pierra Sarr N’ Jie, spoke thus:
“….the words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; Prof. S. A. de Smith takes the same view : All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest-the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him.
Prof. H.W.R. Wade strikes a similar note : In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by preventing inferior tribunals and public authorities from abusing their powers.
In Dabholkar’s case, one of us wrote in his separate opinion:
The possible apprehension that widening legal standing with a public connotation may unloose a food of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system. This view is echoed by the Australian Law Reforms Commission. The crucial significance of access jurisprudence has been best expressed by Cappelletti:
The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic ‘human right’-of a system which purports to guarantee legal rights.
We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Art.136 is chimerical. Access to Justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action. pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal.
Reference
P.S.R. Sadhanatham v. Arunachalam (1980)