Bombay High Court
Vinayak Hari Kulkarni vs State Of Maharashtra And Ors on 7 May, 2010
Author: B. H. Marlapalle
Bench: B.H. Marlapalle, S.C. Dharmadhikari, R.Y. Ganoo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6597 OF 2007
WITH
CIVIL APPLICATION NO. 2284 OF 2009
AND
CIVIL APPLICATION NO. 2285 OF 2009
Vinayak Hari Kulkarni .. Petitioner
Vs.
State of Maharashtra and ors.
ig .. Respondents
WITH
CIVIL APPLICATION NO. 2677 OF 2007
IN
WRIT PETITION NO. 6597 OF 2007
Thane Bar Association, Thane and anr. .. Applicants
Vs.
State of Maharashtra and ors. .. Respondents
WITH
WRIT PETITION (STAMP) NO. 24274 OF 2007
WITH
CIVIL APPLICATION NO. 2730 OF 2007
Vinayak Hari Kulkarni .. Petitioner
Vs.
State of Maharashtra and ors. .. Respondents
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Mr. A.V. Anturkar i/by Mr. S.B. Deshmukh for petitioners in both petitions.
Mr. V.S Gokhale, AGP for Respondent - State in both petitions.
Mr. G.S. Godbole for respondent no.2 in W.P. No. 6597/07.
Mr. Abhay Patki for respondent no.3 in W.P. No. 6597/07.
Mr. M.P.S. Rao for respondent no.5 in W.P. No. 6597/07.
Mr. A.A. Garge for applicant in CAW No. 2677 of 2007.
Mr. S.S. Patwardhan for applicant in CAW NO. 2284 and 2285 of 2009.
Mr. Y.S. Jahagirdar, Senior Advocate with Mr. K.S. Bapat for petitioner no.
2 proposed Intervener.
Mr. Rafiq Dada, Senior Advocate, appearing as Amicus Curie.
CORAM: B. H. MARLAPALLE,
ig S. C. DHARMADHIKARI &
R. Y. GANOO, JJ.
Reserved On : February 26, 2010.
Pronounced On : May 07, 2010.
JUDGMENT (PER B. H. MARLAPALLE, J.)
1. Writ Petition No. 6408 of 2006 came to be filed by Shri Satish Dattatray Nadgauda challenging the legality and propriety of the Government Resolutions dated 25/11/2005 and 29/7/2006 and these GRs pertain to the revised criteria for regularizing the posts other than teachers in the private partial/whole time granted secondary, higher secondary schools, classes of higher secondary/Junior Colleges, military schools in ::: Downloaded on - 09/06/2013 15:56:04 ::: 3 the State of Maharashtra. During the course of hearing of this petition, notices were issued to the State Government as to why the English translations of these GRs were not made available as is required under Article 348 of the Constitution of India. The Chief Secretary filed an affidavit and pointed out that the State Legislature has enacted the Maharashtra Official Languages Act, 1964 and Marathi is the language used for "all official purposes" referred to in Article 345 of the Constitution. It was also pointed out that in compliance with the requirements of Article 348(3) of the Constitution, the Governor of Maharashtra had issued an order on 30/9/1995 authorizing the Secretary or his delegate in the Department of Law and Judiciary as well as the Administrative Department concerned to publish in the Official Gazette the translations in English language of the authoritative text of all such documents. This explanation was accepted by the Division Bench.
2. The Division Bench took over one more issue suo moto and issued notice to the Registrar General of this Court calling upon him to file an affidavit as to why the proceedings in the court, including writ petitions filed, were not in the English language considering the practice notes issued from time to time. The court's attention was invited by the Registry ::: Downloaded on - 09/06/2013 15:56:04 ::: 4 to Rule 2 of Chapter XVII of the Bombay High Court, Appellate Side Rules, 1960. The Registrar General filed an affidavit and stated that the Appellate Side Rules were framed under Section 122 of the Civil Procedure Code and all other enabling powers in that behalf. The attention of the court was also invited to the practice notes issued from time to time as directed by the Hon'ble the Chief Justice. This court referred to Section 20 of the Goa, Daman & Diu Reorganisation Act, 1987 and held that provios to Rule 2(i) of the Bombay High Court, Appellate Side Rules is ultra virus Article 348(1)(a) of the Constitution and declared the said Rule as null and void, vide its judgemnt dated 3/5/2007 in the case of Satish Dattatray Nadgauda vs. State of Maharashtra and ors. [2007 (4) Mh.L.J. 475] and issued the following directions by way of interim arrangement:
(i) When the Judgment, Order, Government Resolution/Circular or notification or other document under challenge, is not in English and when the Advocate/Party wants to rely upon the Judgment, Order Government Resolution/Circular, notification, document which are not in English, typed or xerox copies of the translation in English of such Judgment, Order, Government Resolution/Circular shall ::: Downloaded on - 09/06/2013 15:56:04 ::: 5 be produced.
(ii) When the Advocate/Party wants to produce and refer to other documents, the Advocate/Party shall give an undertaking at the time of filing the petitions that typed English translation thereof shall be produced, if required by the Court.
3. Rule 2 in Chapter XVII of the Appellate Sides Rules 1960 reads as under:-
"2(i) Accompaniments to the application.- The applicant shall annex to his application typed copies of judgments and/or orders of the lower Courts or Tribunals and of affidavits and other relevant documents which are in English, or, where any of such documents are not in English, typed copies of translation in English of such documents. He shall file along with the application a duplicate copy of the application with the said annexures for the use of the Court. Both the original ::: Downloaded on - 09/06/2013 15:56:04 ::: 6 and the duplicate copy with the prescribed annexures shall be duly paged and indexed:
[Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.]
(ii) Translations. - Any translations, other than official translations, annexed to the application shall be either certified to be true by the Advocate for the applicant or supported by an affidavit of the applicant affirming that the translations are true.
(iii) Accompaniments to applications against orders of Revenue Tribunal. - In applications against the orders of the Revenue Tribunal, the applicant shall, in addition, file a true copy each of the judgment and/or order of the Revenue Tribunal and certified copies of the judgments and/or orders of ::: Downloaded on - 09/06/2013 15:56:04 ::: 7 the Prant Officer, Mamlatdar or such other officer concerned in the proceedings.
(iv) Accompaniments to applications against orders of Election Tribunal. - In an application against the order of an Election Tribunal, the applicant shall, in addition to the annexures and accompaniments specified above, supply a typed copy of the memorandum of the application."
4. On or about 24/8/2007, Writ Petition No. 6597 of 2007 came to be filed by Shri Vinayak Hari Kulkarni, aged about 75 years and a practicing Advocate at Pune. He claimed that he had moved a writ petition challenging the orders passed under the Bombay Inferior Village Watan Abolition Act 1958 and most of the impugned orders were in Marathi language. However, when he approached the Registry to file the petition, he was told that unless the impugned orders' copies were translated in English and such translated copies were annexed to the petition memo, the petition would not be entertained/received. He, therefore, tried to find out the reasons for such an insistence, despite the fact that Rule 2 (i) of Chapter ::: Downloaded on - 09/06/2013 15:56:04 ::: 8 XVII of the Appellate Side Rules did not insist on such a requirement and it was sufficient compliance if the Advocate concerned had furnished an undertaking to submit such translated copies as and when required. He came to know about the Judgment in the case of Satish (Supra) and as per the directions issued therein the Registry had taken steps to comply with the same. He, therefore, filed the instant petition and prayed for the following reliefs:-
"(A) That this Honourable Court be pleased to issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India, 1950, holding that the Rule framed by this Honourable Court, in the High Court Appellate Side Rules, namely Chapter 17, Rule 2(i) is constitutionally valid or as per the true and correct interpretation of the relevant provisions of the Constitution of India, and be pleased to direct the registry of the Honourable Court to implead the said Rules, as it stands, before the Judgment delivered by the Honourable Court [Coram: Rebello and Sawant,JJ].::: Downloaded on - 09/06/2013 15:56:04 ::: 9
(B) That this Honourable Court be pleased to issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India, 1950, directing the registry to accept the Writ Petition, from the petitioner with Marathi documents, including the Marathi documents where the impugned order is in Marathi without insisting for English translation thereof in conformity with Rules referred to in prayer clause [A]."
5. In the petition, he specifically set out his objections to the declaration made by the Division Bench in the case of Satish (Supra) holding Rule 2 of Chapter XVII of the Appellate Side Rules to be unconstitutional, null and void, in the following words:-
"The Petitioner submits that the controversy as to whether the Rule as it was framed by the High Court Registry was constitutional or not the subject matter of the Writ Petition No. 6408 of 2006, which was decided by this Honourable High Court [Coram: Rebello and Sawant, JJ.]. It is submitted that ::: Downloaded on - 09/06/2013 15:56:04 ::: 10 this Honourable Court, suo-moto took cognizance of the said issue and has given the findings. It is submitted that, at that time the persons who were really affected namely the litigants are not given any opportunity of being heard. That apart the petitioner submits that, the interpretation put upon the words, of the Constitution namely proceeding in the High Court is with respect not correct. It is respectfully submitted that the expression "proceeding" would not have the meaning which have been interpreted by the Honourable Division Bench, while delivering that Judgment. The petitioner submits that, therefore the Rules as it was framed by the High Court, was perfectly correct, and justified and therefore, as per that Rules, which stands it is necessary to direct the Registry to accept the petition with Marathi documents. The action on the part of the Registry in not accepting the Writ Petition with Marathi documents, particularly with English translation of the Marathi documents, when Marathi document is the impugned order is with respect not correct and it is not in conformity with the provisions of Constitution of India. It is for this reason that the present Writ Petition is filed."::: Downloaded on - 09/06/2013 15:56:05 ::: 11
Thus, while praying for a declaration that Rule 2(i) is constitutionally valid and praying for a direction to the Registry to implement the said Rule as it stood before the Judgment of the Division Bench in the case of Satish (Supra), the petitioner has undoubtedly challenged the decision of the Division Bench holding the very same Rule as unconstitutional, null and void.
6. Initially when this petition came up before another Division Bench, respondent nos.3, 4 and 5 i.e. the Western India Advocates Association High Court of Judicature at Bombay, High Court Bar Association at Aurangabad and the High Court Bar Association at Nagpur were allowed to be transposed as petitioner nos.2 to 4. In addition, another petition i.e. Writ Petition under Stamp No. 24274 of 2007 also came to be filed by the first petitioner in Writ Petition No. 6597/07 for the following reliefs:
"[A] That this Honourable Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other ::: Downloaded on - 09/06/2013 15:56:05 ::: 12 appropriate writ, direction or order under Article 226 of the Constitution of India, 1950, quashing and setting aside the following Government Resolutions viz.
(i) The Government Resolution No. CBC-1494/Pra.Kra.
236/MVK-5 dated 7th December 1994 issued by the Department of Social Welfare and the Sports, Government of Maharashtra.
(ii) The Government Resolution No. CBC-1494/Pra.Kra.
236/MVK-5 Department of Social Welfare and the Sports Department of the Government of Maharashtra dated 2nd January 1995.
(iii) The Corrigendum No. CBC-1494/Pra.Kra.236/MVK-5, Department of the Social Welfare and the Sports dated 15th June, 1995."
These GRs provided for reservation in favour of the Special Backward Class (SBC) and the petitioner prayed for setting aside these GRs as being ::: Downloaded on - 09/06/2013 15:56:05 ::: 13 constitutionally invalid. These GRs annexed to the petition memo were in Marathi language and therefore the Registrar passed an order on 19/10/2007 refusing to register the petition. The petitioner filed Civil Application No. 2730 of 2007 and challenged the order passed by the Registrar, which order was, in fact, in compliance with the directions issued by the Division Bench in the case of Satish (Supra). It was under
these circumstances that the second petition came to be tagged with Writ Petition No. 6597/2007.
7. Both the petitions were heard together by another Division Bench on 25/11/2007 and the Judgment was reserved.
In the meanwhile in First Appeal No. 2149 of 2007 it was brought to the notice of the learned Single Judge that the impugned judgment was rendered in Marathi language but its original copy was not available and what was available on record was only translated copy in English language. On enquiries, the learned Single Judge was informed that in view of the directions issued in Satish's case (Supra), the Registry had insisted to place on record only English translated copies. The learned Single Judge referred to Rule 12 of Chapter IV of the Appellate Side Rules ::: Downloaded on - 09/06/2013 15:56:05 ::: 14 and clarified that the declaration so made in Satish's case in respect of Rule 2(i) of Chapter XVII of the Appellate Side Rules would not have any effect on other civil proceedings except the writ petitions and he further held that there was no declaration made by the Division Bench as regards Rule 12, proviso to clause (iii) of Chapter IV of the Appellate Side Rules. However, on 24/11/2008 another Division Bench in a Criminal Appeal gave the following directions:-
"Inspite of the judgment of the Division Bench of this Court we find that the office is entertaining appeals without translated copy of the judgment. The learned A.P.P. requests that two weeks time be granted to file translated copy of the judgment. Time granted. The Registrar in-charge of the Section to file explanation as to why inspite of the judgment of the Division Bench which was directed to be circulated matters have been entertained without English translated copy."
In Criminal Application No. 250 of 2009, when it came up for hearing before the learned Single Judge on 6/2/2009, the Registry brought ::: Downloaded on - 09/06/2013 15:56:05 ::: 15 to the notice of the learned Judge that the Registry had declined to accept the filing of the application on the ground that the impugned order of acquittal was in Marathi language and its translation in English was not furnished and despite furnishing an undertaking that a translated copy in English would be provided as and when directed, the application was not accepted for being registered. The Registry submitted a report on 29/1/2009 and pointed out that on account of the directions issued by the Division Bench on more than one occasions, the Registry had no choice but to refuse registration in the cases unless the English translated copies of the impugned judgments/orders were filed along with the petition/appeal memo. The learned Single Judge once again reconsidered the scheme of the Appellate Side Rules for both civil and criminal cases as well as writ petitions and noted that the declaration made by the Division Bench in Satish's case (Supra) was only in respect of the writ petitions filed on the civil appellate side and not to other proceedings like civil appeals, revisions, applications and criminal appeals, revisions and applications etc.
8. In the instant petition, the Division Bench pronounced its judgment on 18/3/2009 and disagreed with the view taken by the earlier ::: Downloaded on - 09/06/2013 15:56:05 ::: 16 Division Bench in Satish's case for more than one reasons. The Division Bench held, ".....With great respect, we are of the view that the matter was not scrutinized in the light of the earlier amendments made in the Rules and the coming into existence of the common High Court with the same jurisdiction, power and authority in relation to both the territories of State of Maharashtra and State of Goa.
........ What we find is that while interpreting Article 348, it is necessary to keep in mind Article 350 and Article 39A and the scheme for early disposal of the matters, easy access to justice and a financially cheaper system to be provided to the citizens.
Delay is one of the topics which is always discussed in courts of law and in public meetings. That can be avoided by presenting the documents in the official language in Marathi and, therefore, we record that the judgment in Writ Petition No. 6408 of 2006 requires reconsideration by a larger Bench."
::: Downloaded on - 09/06/2013 15:56:05 ::: 179. The Division Bench directed the Registrar (Judicial) to place the instant writ petition before the Hon'ble Chief Justice to make reference to a larger Bench, however, while doing so, the Division Bench did not frame any issues for reference to the larger Bench. It appears that when the original respondent nos. 3 to 5 supported the Writ Petition and came to be transposed as Petitioner Nos.2 to 4, there was no challenge raised to the maintainability of the writ petition, more particularly for the relief prayed in prayer clause (A). The High Court on its administrative side has been impleaded as Respondent No.2 and no reply has been filed by the High Court, though Shri Godbole appeared for the High Court. In Satish's case (Supra), the High Court on its administrative side had, by its affidavit, reiterated the constitutional validity of Rule 2, and based on the said affidavit, it appears that Shri Godbole, the learned counsel, proceeded to support the instant petition. However, we are doubtful whether the High Court on its administrative side has, by a specific decision, supported this petition and the reliefs prayed for therein. The Division Bench proceeded to consider the petition on merits and disagreed with the view taken by the coordinate Bench in Satish's case (Supra) holding Rule 2 of Chapter XVII Appellate Side Rules as unconstitutional, null and void. When the Full Bench was constituted by the Hon'ble Chief Justice, no specific issues ::: Downloaded on - 09/06/2013 15:56:05 ::: 18 came to be referred. It was under these circumstances that the Full Bench framed the following issues by its orders dated 14/8/2009 and 8/1/2010:
1. Whether the proviso to Rule 2(i) of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 is unconstitutional?"2.
Whether Rule 2(i) of Chapter XVII of the Bombay Appellate Side Rules, 1960 could be a subject matter for reference about its Constitutional validity, when the said rule has already been declared to be unconstitutional in Writ Petition No. 6408 of 2006?
If the findings on Issue No.2 are in the affirmative, it would not be necessary to deal with Issue No.1 and the petition will have to be placed before the regular Division Bench. It is well settled that the Full Bench may, in a given case, return the reference, on the same legal planes that the Supreme Court may, in a given case, return the reference made to it under Article 143 of the Constitution.::: Downloaded on - 09/06/2013 15:56:05 ::: 19
10. Before we proceed further, it would be appropriate to deal with the submissions of the High Court Administration in its reply filed in Satish's case (Supra). It stated that the Bombay High Court Appellate Side Rules 1960 are statutory in nature, framed under Section 122 of C.P.C. as well as Article 225 of the Constitution of India and all other enabling powers in that behalf. It pointed out the scheme of Rule 3 in Chapter IV, which states that the memorandum of appeals, cross-objections, applications or petitions presented by the party personally may be either in Marathi or Hindi or in English, provided that the party or the Advocate shall be required to put at his expense official translations of the same in English whenever a specific order in that respect is passed. It pointed out that Rule 2(i) of Chapter XVII pertains to filing of writ petitions under Articles 226, 227 and applications under Article 228 of the Constitution of India. It was further submitted that the Rules pertaining to translation etc. as applicable to the civil proceedings would apply mutatis mutandis to the criminal proceedings as well in view of Rule 1 in Chapter XXVI. By referring to all these Rules, it was pointed out that they did not dispense with filing of official translations when the document is not in English and the filing of translated copies is simply deferred and the party or the ::: Downloaded on - 09/06/2013 15:56:05 ::: 20 Advocate is required to put at his expense official translation whenever ordered by the court. Such a procedure only gives an option for not filing the official translations at the inception and therefore such Rules in no way contravene the spirit of Article 348 of the Constitution.
11. In this reference, the High Court administration has not filed any reply after the two issues were framed for considerations by the Full Bench. However, written submissions have been made by Shri Godbole, the learned counsel appearing for the High Court so as to reply Issue No.1 in the affirmative but without dealing with Issue No.2. We have no indication, as to whether these written submissions of Shri Godbole have the administrative approval of the High Court. Be that as it may, Shri Rafiq Dada, the learned amicus curie has urged before us that the reference could not have been made to declare Rule 2 (1) of Chapter XVII of the Appellate Side Rules, as constitutionally valid, when the Division Bench in the case of Satish (Supra) has held and declared it constitutionally invalid. As per the learned Senior Counsel, once the Rule was held unconstitutional, the remedy for the aggrieved party, including the High Court, was only before the appellate forum and the Full Bench constituted by the Hon'ble Chief Justice is not an appellate forum and therefore the ::: Downloaded on - 09/06/2013 15:56:05 ::: 21 reference has to be returned by leaving the petitioners with a remedy to approach the Supreme Court against the decision in the case of Satish (Supra). It was urged that once the Rule was declared as unconstitutional, null and void, it ceased to be operative and continue on the Rule book, unless the declaration made in the said case was or is set aside by the higher appellate forum.
12. Section 122 of C.P.C. deals with the power of the High Courts to make rules, Section 123 provides for the constitution of a Rule Committee in certain States and as per Section 124, every Rule Committee shall make a report to the High Court and Rules so made shall be subject to the previous approval of the Government of the State in which the court whose procedure the rules regulate is situated, as per Section 126. Section 127 states that the Rules so made and approved shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the same force and effect within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule. Section 128 of CPC specifies the matters for which rules may provide. As per Section 129, notwithstanding anything in the CPC, any High Court, not being the Court of Judicial ::: Downloaded on - 09/06/2013 15:56:05 ::: 22 Commissioner, may make such rules not inconsistent with the Letters Patent or order or other law establishing it, to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit and nothing therein contained shall affect the validity of any such rules in force at the commencement of the said Code. The Supreme Court in the case of State of Uttar Pradesh vs. Pt. Chandra Bhushan Misra [(1980) 1 SCC 198] stated thus, regarding the powers for framing rules under Section 122 of CPC.:
"Section 122 enabled the High Court to make rules, from time to time "regulating their own procedure or the procedure of the Civil Code subject to their superintendence, and made by such rules, annul, alter or add to all or any of the rules in the first schedule". Section 126 made the rules made by the High Court subject to the previous approval of the government of the State. Section 127 provided that the rules as made and approved shall have the same force and effect as if they had been contained in the first schedule. These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if ::: Downloaded on - 09/06/2013 15:56:05 ::: 23 they had been contained in the first schedule and, therefore, necessarily became part of the Code for all purposes."
Clause 37 of the Letters Patent and Article 225 of the Constitution of India are the other sources of power with the High Court to frame Rules. Regarding the powers of the High Court to frame Rules under Article 225 of the Constitution, the Supreme Court, in the case of Kailash vas. Nanhku and ors. [(2005) 4 SCC 480] stated that Article 225 of the Constitution confers powers on the High Court, inter alia, to make rules of court for the purpose of hearing, trying and deciding any matter lying within the jurisdiction of the High Court.
13. Article 348 of the Constitution reads as under:
"348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc. - (1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides -::: Downloaded on - 09/06/2013 15:56:05 ::: 24
(a) all proceedings in the Supreme Court and in every High Court,
(b) the authoritative texts -
(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,
(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and
(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.
(2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:::: Downloaded on - 09/06/2013 15:56:05 ::: 25
Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.
(3) Notwithstanding anything in sub-cause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-
clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article."
Article 350 of the Constitution, on which also reliance was placed by the learned counsel for the petitioners, states that every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be.
::: Downloaded on - 09/06/2013 15:56:05 ::: 2614. Article 348 (2) of the Constitution of India states that notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State, provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court. This sub article does not leave any ambiguity and it opens with a non obstante clause. As per this article, though all the proceedings in the High Court of Bombay shall be in English, with the previous consent of the President, the Governor of Maharashtra may authorise the use of Marathi language which is used for any official purposes in the State of Maharashtra, in proceedings in this High Court. No doubt, under the Goa, Daman and Diu Reorganisation Act, 1987, the High Court of Bombay is a common High Court for the State of Maharashtra and Goa as well as the Union territories of Dadara and Nagar Haveli and Daman and Diu. Section 20 of the said Act does not limit or in any way prejudice or control the powers of the Governor of Maharashtra under Article 348(2) of the Constitution to authorise the use of Marathi language in the proceedings in the High Court of Bombay, with the ::: Downloaded on - 09/06/2013 15:56:05 ::: 27 previous consent of the President of India and provided that despite such an order/authorisation by the Governor, the said order shall not apply to any judgment, decree or order passed or made by the High Court of Bombay.
At the same time, as the High Court of Bombay is a common High Court for the State of Maharashtra and Goa as well as the Union territories of Dadara and Nagar Haveli and Daman and Diu, the powers so exercised by the Governor of Maharashtra in Article 348(2) shall apply only for the State of Maharashtra and such authorisation made by the Governor regarding Marathi language to be a language in the proceedings in the High Court of Bombay shall not, per se, be applicable for the State of Goa as well as the Union territories of Dadara and Nagar Haveli and Daman and Diu. The words used in Article 348(2) "in proceedings in the High Court having its principal seat in that State" are very material and, therefore, Section 20 of the Goa, Daman and Diu Reorganisation Act, 1987 could not be an impediment in the exercise of powers under Article 348(2) of the Governor of Maharashtra to authorise the use of Marathi language in the proceedings in the High Court of Bombay for its three Benches (the Principal Bench and the Benches at Nagpur and Aurangabad), as the principal seat of the High Court of Bombay is in the State of Maharashtra (at Mumbai).
::: Downloaded on - 09/06/2013 15:56:05 ::: 2815. It was contended by the learned counsel for the petitioners that the word "proceedings" would not include the impugned order and, therefore, the litigants cannot be compelled to submit a copy of English translation of the impugned orders/Government Resolutions/Rules framed by the Legislature. Though initially these arguments were placed before us with a strong vehemence, Mr. Antrukar, the learned counsel appearing for one of the petitioners fairly conceded that the meaning of the term "proceedings" cannot be limited and it will include the impugned orders/Government Resolutions and/or the Rules. In Black's Law Dictionary, in a general sense, "proceeding" is described as the form and manner of conducting juridical business before a Court or judicial officer;
regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment, and, in a more particular sense, any application to a Court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. In the case of Mayadhar Mallik vs. Laxmi Mallik [AIR 1999 Orissa 81], it is held that in its ordinary acceptation, or general sense, except, as qualified by the subject to which it is applied, `proceeding' means the form and manner of conducting judicial ::: Downloaded on - 09/06/2013 15:56:05 ::: 29 business before a court or judicial officer, the form in which actions are to be brought and defended; the manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments, and of executing them. Thus, the expression "proceedings" is of wider amplitude and takes within it not only the proceedings in the court but also the business of the court. We, therefore, do not agree with the submissions advanced before us by some of the petitioners that the copies of the impugned judgment/order passed by the subordinate courts/tribunals will not form part of the proceedings initiated before the High Court.
16. Mr. Anturkar then invited our attention to Article 350 of the Constitution and submitted that it is applicable to the High Court also, by relying upon the decision in the case of Moti Ram and ors. vs. State of Madhya Pradesh [(1978) 4 SCC 47] In the said case, the Supreme Court held that, bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigents's rights, bail covered both
- release on one's own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables. The Learned Magistrate had demanded sureties from the home district of the accused which was not approved by the Supreme Court.
::: Downloaded on - 09/06/2013 15:56:05 ::: 30Article 14 of the Constitution protects all Indians qua Indians and within the territory of India. It was in this context the Supreme Court held that Article 350 of the Constitution sanctions representation to any authority, including a court, for redress of grievances in any language used in the Union of India and equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. These are the general observations made by the Apex Court and with great respect at our command, they do not lay down a ratio desidendi. It is well settled that a decision is an authority for what it actually decides [(2004) 4 SCC 79]. Even otherwise, merely quoting the isolated observations in a judgment cannot be treated as a precedent dehors the facts and circumstances in which such observations are made [2010 - 3 SCC 115]. This issue had specifically come up before the Madhya Pradesh High Court (Nagpur Bench) in the case of L. M. Wakhare vs. The State [AIR 1959 Madhya Pradesh 208]. The Division Bench held that Article 350 entitles every person to submit a representation for the redress of any grievance to any officer or authority of the Union or of a State in any of the languages used in the Union or in the State, as the case may be. The languages contemplated by this Article have obvious ::: Downloaded on - 09/06/2013 15:56:05 ::: 31 reference to the languages specified in the Eighth Schedule of the Constitution which does not contain the English language and, therefore, no person can claim to make a representation in English by virtue of this Article. Moreover, the expression "any officer or authority" is not intended to cover Courts of law since the Constitution has used the word "Courts"
when it intended to refer to Courts of law (see for instance Article 227).
Years later, in the case of Sarshwati Bai vs. The Allahabad Bank Ltd. and anr. [AIR 1963 Allahabad 546], a Division Bench held as under:
"......In this Article, two points have to be considered. Firstly whether a plaint presented before a Court of law can be said to be a representation for redress of a grievance. Secondly, can a court of law be properly described as an officer or authority of a State. This Article appears to be applicable to petitions made before executive authorities for redress of grievances against the Government and may, therefore, not apply to a plaint in a Court of law...."::: Downloaded on - 09/06/2013 15:56:06 ::: 32
However, as per the High Court, it was not necessary to give a final decision on the interpretation of Article 350 of the Constitution. We, therefore, do not agree with the submissions that the expression "any officer or authority" as used in Article 350 of the Constitution refers to the Courts of law.
17. Let us now refer to the source of jurisdiction and scope of jurisdiction of the Full Bench. Rule 7 in Chapter I of the Appellate Side Rules, 1960 reads as under:-
"7. Reference to two or more Judges - If it shall appear to any Judge, either on the application of a party or otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he shall think fit."
Clause 36 of the Letters Patent of the High Court of Judicature of the Presidency of Bombay reads as under:-
::: Downloaded on - 09/06/2013 15:56:06 ::: 33"36. Single Judges and Division Courts. - And We do hereby that any function, which is hereby directed to be performed by the said High Court of Judicature at Bombay in the exercise of its original or appellate jurisdiction, may be performed by any Judge or any Division Court thereof, appointed or constituted for such purpose, in pursuance of section One hundred and eight of the Government of India Act, 1915, and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."
18. It is well settled that a coordinate Bench of the High Court cannot take a different view from that taken by the earlier Bench and if the ::: Downloaded on - 09/06/2013 15:56:06 ::: 34 latter Bench wanted to take a different view than that taken by the earlier Bench, the proper course for the latter Bench would be to refer the matter to a larger Bench (State of Tripura vs. Tripura Bar Association and ors.
- (1998) 5 SCC 637]. It is also equally well settled that when there is a difference of opinion on the interpretations, scope, ambit or meaning of any order, Rule or statutory provision between two Division Benches, the proper course would be to make a reference to a larger Bench to settle the controversy. Rule 7 of Chapter I of the Appellate Sides Rules, 1960 of our High Court is the source for the constitution of a larger Bench of two or more Judges.
19. On the second issue framed by us in this reference, it was contended at the out-set that it was not permissible for the Full Bench to frame such an issue and it was further submitted that only the first issue is required to be decided by us. Reliance, in this regard, was placed on the following observations made by the Full Bench of this court in the case of Shikshan Prasarak Mandal and ors. vs. Laxmikant Balkrishna Joshi and ors. [2004 (1) Mh.L.J. 619] :
"26. When specific questions of law are referred to the Full ::: Downloaded on - 09/06/2013 15:56:06 ::: 35 Bench for its decision, it is bound to give its verdict on those questions. In a situation like this, the Full Bench is only called upon to settle the legal issue referred to it and, therefore, the power the Full Bench exercises in such circumstances is advisory. However, when the entire case is referred to the Full Bench by the Division Bench, the Full Bench will have to decide the whole case in the light of the answers to the questions referred to it and on consideration of the evidence on record, will have to finally dispose of the Writ Petition.
Such situation is almost not possible, since the Division Bench normally is required to refer the matters to the Full Bench when there is an inconsistent view expressed by the decisions of this Court on the point of law, and not otherwise."
The learned counsel also relied upon the following observations made in the case of Kerala State Science and Technology Museum vs. Rambal Co. and ors. [(2006) 6 SCC 258]:
"8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division ::: Downloaded on - 09/06/2013 15:56:06 ::: 36 Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to it. [ See Kesho Nath Khurana vs. Union of India -
1981 Supp. SCC 38, Samaresh Chandra Bose vs. District Magistrate, Burdwan - (1972) 2 SCC 476 and K.C.P. Ltd. vs. State Trading Corpn. Of India - 1995 Supp. (3) SCC 466]."
20. As noted earlier, the Division Bench in the instant petition by its order dated 18/3/2009 has not framed any specific issues for consideration by the Full Bench, nor the referral order passed by the Hon'ble the Chief Justice has framed any specific questions for determination/decision by the Full Bench. Having regard to the scheme of Rule 7 of Chapter I of the Appellate Side Rules 1960, the Single Bench or the Division Bench has the power to direct the office to place the petitions before the Hon'ble the Chief Justice for reference and such a Bench on its own has no power to make a reference directly to the larger Bench. The referral order is required to be passed by the Chief Justice and while exercising such powers he must be satisfied that there is a case made out to make a reference. As no issues were framed to be decided by the Full ::: Downloaded on - 09/06/2013 15:56:06 ::: 37 Bench, in the instant petition, the Full Bench has framed the above mentioned two issues and that too after hearing all the parties concerned. If any of the parties are aggrieved by framing of the issues or any such issue, by the Full Bench, their remedy would be before the Appellate forum.
The Full Bench constituted under Rule 7 of Chapter I of the Appellate Side Rules, 1960 is not an Appellate Bench and it is well settled that when such a Bench is constituted, it is called upon to give an advice and resolve the legal inconsistencies or difference of opinion on the interpretations, meaning, ambit/scope of the impugned order or a statute or a subordinate legislation. In para 21 of the judgment in Shikshan Prasarak Mandal's case (Supra), the Full Bench in this regard made the following observations:-
"21. The power under Rule 7 is distinct and separate than one under Article 226 of the Constitution and can generally be invoked for the limited purpose to resolve the inconsistency on the point of law. The Division Bench, therefore, refers the matter to the Larger Bench only for the limited purpose to have a final legal opinion to end the inconsistency and, ::: Downloaded on - 09/06/2013 15:56:06 ::: 38 therefore, by necessary implication the subject matter on which the Full Bench is required to adjudicate and decide being distinct and separate, cannot be equated with the subject matter in the writ petition, which the Division Bench has to adjudicate and decide under the original jurisdiction under Article 226 of the Constitution by applying the law laid down by the Full Bench to the facts and circumstances involved in the said writ petition. Therefore, on the backdrop of these aspects, by necessary implication, the jurisdiction which the Full Bench exercise is advisory and consultative, which is separate and distinct than the one under Article 226 of the Constitution."
21. Opposing the second issue framed by the Full Bench, in the instant petition, it was submitted by the learned counsel for the petitioners that the declaration holding Rule 2(i) of Chapter XVII of the Appellate Side Rules 1960 as unconstitutional by the Division Bench in Satish's case (Supra), does not, per se, delete the said Rule from the Appellate Side Rules 1960 nor does such a declaration make the said Rule inoperative and the effect of such a declaration is nothing but to bring the Rule under the ::: Downloaded on - 09/06/2013 15:56:06 ::: 39 eclipse temporarily and, therefore, the prayer made in Writ Petition No. 6597/07 for declaring the same Rule constitutionally valid could well be considered by the subsequent Division Bench. It was submitted that as Rule 2(i) of Chapter XVII of the Appellate Side Rules has not erased or has not been deleted on its declaration as constitutionally invalid, it could be very well a subject matter for reference about its constitutional validity and the said Rule still remains as a part of the Appellate Side Rules but under an eclipse for the time being and the said eclipse can be removed by the Full Bench. It was submitted that in some cases at the most the law will be illegal and even illegal law continues to remain on the statute book and has its life post declaration of its unconstitutionality till such time that the reasons for its unconstitutionality are removed. It was urged that such reasons can be removed by a constitutional amendment or by a correct interpretation of the so called constitutional impediment by a competent authority and the Full Bench is one such competent forum. In support of the doctrine of eclipse the learned counsel for the petitioners has relied upon the Constitution Bench decision in the case of M.V.P. Sundararamier & Co. vs. State of A.P. And ors. [AIR 1958 SC 468] and submitted that the finding of unconstitutionality does not destroy the statute book but merely involves a refusal to enforce it.
::: Downloaded on - 09/06/2013 15:56:06 ::: 40However, in the very same decision, the Constitution Bench reproduced the following observations made earlier in the case of State of Bombay vs. F.N. Balsara:
"The constitutional invalidity of a part of Section 13(b) of the Bombay Prohibition Act having been declared by this Court, that part of the section ceased to have any legal effect in judging cases of citizens and had to be regarded as null and void in determining whether a citizen was guilty of an offence."
The bench summarized its conclusions in the following words, "47. The result of the authorities may thus be summed up:
Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must reamain there for the purpose of enforcement of the valid portion thereof, and being ::: Downloaded on - 09/06/2013 15:56:06 ::: 41 on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the constitutional bar is removed, and there is no need for a fresh legislation to give effect thereto...."
22. These observations do not, in our considered opinion, support the doctrine of eclipse as was sought to be vehemently argued before us. If a statute has two parts/portions and if the first part is held to be unconstitutional and is severable from the second part, the entire enactment cannot be held to be wiped out of the statute book and the second portion must remain there for its enforcement and the portion which is unenforceable on the ground that it was declared unconstitutional, will become operative on the constitutional bar being removed. The removal of the constitutional bar is thus the prime requirement for the statute being made operative after it was declared to be unconstitutional and this cannot be done by the Full Bench. The Full Bench is constituted, as noted earlier, with a limited jurisdiction of advisory in nature and it does not have the original jurisdiction as is available under Article 226 of the Constitution.
The referral order which constitutes the Full Bench is aimed at resolving the difference(s) of opinion between two or more coordinate Benches on ::: Downloaded on - 09/06/2013 15:56:06 ::: 42 the interpretation of statutes, their meaning and scope/ambit as well as their applicability to given situations. The larger Benches of the High Court are not a court of original jurisdiction. At the same time, it cannot be called upon to function as an Appellate Court, when a Division Bench of the High Court in its exercise of power under Article 226 of the Constitution has held a particular Rule to be unconstitutional and that unconstitutionality can be removed only by the Appellate forum, if it is so satisfied or by way of an amendment by the competent authority. It is not for the Full Bench to sit in appeal over the findings recorded by the Division Bench about the unconstitutionality of a subordinate legislation or of a statutory provision.
Mr. Dada, the learned Amicuse Curie rightly submitted that the doctrine of eclipse is not applicable when a Rule or a statute or a Government Resolution has been declared to be unconstitutional by a Division Bench of the High Court while exercising its powers under Article 226 of the Constitution. He has aptly placed reliance on the following observations made by the Constitution Bench in the case of Mahendra Lal Jaini vs. State of U.P. [AIR 1963 SC 1019]:
"22. ......Further, Article 13(2) provides that the law shall be void to the extent of the contravention. Now contravention in ::: Downloaded on - 09/06/2013 15:56:06 ::: 43 the context takes place only when the law is made, for the contravention is of the prohibition to make any law which takes away or abridges the fundamental rights. There is no question of the contravention of Article 13(2) being a continuing matter. Therefore, where there is a question of a post-Constitution law, there is a prohibition against the State from taking away or abridging fundamental rights and there is a further provision that if the prohibition is contravened the law shall be void to the extent of the contravention. In view of this clear provision, it must be held that unlike a law covered by Article 13(1) which was valid when made, the law made in contravention of the prohibition contained in Article 13(2) is a stillborn law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse." (emphasis supplied).
A three Judge Bench in the case of Rakesh Vij vs. Dr. Raminder Pal Singh Sethi and ors. [(2005) 8 SCC 504] by following the above observations made in the case of Mahendra Lal Jaini (Supra) held, ::: Downloaded on - 09/06/2013 15:56:06 ::: 44 ".... Having regard to the prohibition contained in Article 13(2) of the Constitution, any law made in contravention of Part III of the Constitution would be a stillborn law and such a law is dead from the very beginning. A law, which is stillborn and is dead right from its inception, cannot at all be taken notice of or read for any purpose whatsoever." (emphasis supplied by us).
23. If Rule 2(i) of Chapter XVII of the Appellate Side Rules has been held to be unconstitutional in Satish's case (Supra) by the Division Bench, the unconstitutionality is right at its inception and, therefore, it ceases to exist in the Appellate Side Rules right from the beginning, unless, of course, the view taken by the Division Bench about its unconstitutionality is set aside by the Appellate Court i.e. the Supreme Court of India and the Full Bench constituted under Rule 7 of Chapter I of the Appellate Side Rules cannot be such an appellate forum. When the Rule ceases to exist and is held to be dead right from the beginning, there is no power with the Full Bench to adjudicate on its constitutional validity and to give a reverse declaration. We are not dealing with a situation where the reference order has been made to resolve a difference of opinion between ::: Downloaded on - 09/06/2013 15:56:06 ::: 45 two coordinate Benches on the interpretation, meaning, ambit/scope or applicability of a statutory provision or a Rule within the meaning of Article 13(2) of the Constitution, which, in fact, is the jurisdiction of the Full Bench in its advisory capacity. When the particular Rule itself has been declared to be unconstitutional by the Division Bench while exercising its power under Article 226 of the Constitution, such a Rule cannot be a subject matter of reference before the Full Bench. No notice can be taken of such a Rule and, therefore, no reference can be made for the declaration of the same as being constitutionally valid.
24. No doubt, we share equally the anguish, sentiments and concern of the Bar on account of the inconvenience and hardships likely to be caused to the litigants in seeking speedy justice in affordable costs, by the declaration in Satish's case (Supra), we cannot be oblivious in addressing to the issues of judicial discipline and the efficacy on the jurisdictional plane. If the submissions made on behalf of the petitioners are accepted to decide Issue No.1 by answering Issue No.2 in the affirmative, the consequences would be disastrous. We shall be vesting the Full Bench with the original powers under Article 226 of the Constitution as well as the appellate powers over the decisions of the Division Bench ::: Downloaded on - 09/06/2013 15:56:06 ::: 46 pronounced while exercising its jurisdiction under the said Article on the constitutional validity of a Rule which is no more operative and ceases to exist on the Rule book. Secondly, it would be opening flood gates and the decisions of a Division Bench holding a particular Rule, GR or statutory provision as unconstitutional will not be allowed to reach its finality at the High Court level. It would be open for any number of litigants to file fresh petitions challenging such a decision of the Division Bench and pray for a reverse declaration before another coordinate bench, contending that he/they were not a party to the first decision and, therefore, they could not be heard. In the case of the multi-Bench High Court like ours, there may be a flood of such subsequent petitions for a reverse declaration without approaching the appellate court. We are of the considered opinion that any Rule declared as constitutionally invalid can be brought back to the Rule book only by the appellate court and if the said Court is satisfied that the said Rule does not suffer from any virus. The Full Bench, therefore, becomes a `coram non judice', in the instant case.
25. Notwithstanding the above observations, it may not be difficult to explore some alternative mechanism at the institutional level administratively. The Hon'ble Chief Justice and all other Hon'ble Judges ::: Downloaded on - 09/06/2013 15:56:06 ::: 47 may be requested to address to the enormous difficulties that the litigants are likely to face before all the Benches of this Court in the State of Maharashtra and with the cherished goal of providing easy access to the justice delivery system at affordable costs, in mind. There have been number of instances where the litigants and even the advocates appearing for the parties are allowed to address in Marathi or the Marathi documents/orders impugned have been explained by one Judge to another while sharing the Bench. At times, we have noticed that the original Marathi copies of the impugned orders are more reliable than their English translated versions. It is ultimately the urge to do justice, that matters and not the semantic technicalities. We cannot, as the judges committed to our adjudicatory role, allow ourselves to be arrested in the cobweb of these technicalities. At the same time, the Bar and the Bench must join hands in exploring an alternative mechanism in place of Rule 2(i) in Chapter XVII of the Appellate Side Rules. Refusing to accept the petition for registration solely on the ground that the English translation of the impugned order in Marathi has not been annexed to the petition will be too harsh an action and resulting in denial of the very entry and access to seek justice. What would happen if the Governor of Maharashtra invokes his powers under Article 348(2), with the previous consent of the President of India, in the ::: Downloaded on - 09/06/2013 15:56:06 ::: 48 near future? All the Benches of this High Court, in the State of Maharashtra shall have to adopt the proceedings in Marathi in that eventuality. It is, therefore, for all of us to address to these serious and staring issues as early as possible, rather than merely asking the petitioners and litigants to approach the appellate forum. It cannot be said that the Full House does not have the necessary powers to find out an administrative mechanism, even in the absence of Rule 2(i) of the Appellate side Rules, so as to allow the registration of the Writ Petitions with the impugned order, GR or Rule copy being in Marathi language and to leave further choice to the Bench concerned to issue directions to file the english translation, before granting any relief to the petitioner.
26. In the premises we hold that Rule 2(i) of the Appellate Side Rules, 1960 which has been declared to be unconstitutional, null and void by the Division Bench in the case of Satish (Supra) cannot be a subject matter of reference for deciding its constitutional validity by the Full Bench / Larger Bench. Hence we answer issue no.2 framed by us in the negative and return the reference.
We direct the Registrar General to place a copy of this order before ::: Downloaded on - 09/06/2013 15:56:06 ::: 49 the Hon'ble Chief Justice, with our request to direct to place the same before the Full House (and by circulation, if required) so as to devise an alternative administrative mechanism so that registration of Writ Petitions with copies of the impugned orders, GRs or Rules in the Marathi language, is not refused.
(B.H. MARLAPALLE,J.) (R. Y. GANOO,J.) ::: Downloaded on - 09/06/2013 15:56:06 ::: 50 JUDGEMENT (Per S. C. Dharmadhikari, J).
27] With deepest respect to Hon'ble Mr.Justice Marlapalle and Hon'ble Mr.Justice Ganoo, I am unable to agree with their view that this reference should be returned. After having carefully perused their draft judgement, I am of the view that while holding that the reference deserves to be returned unanswered, they have expressed their opinion on the question whether the proviso to Rule 2 (i) of Chapter XVII of the Bombay High Court (Appellate Side) Rules (High Court Rules for short) is unconstitutional or not. In such circumstances and in the light of the differing judgements so also the importance of the issue involved, I am of the view that the question framed for consideration by the Full Bench on 14th August 2009 must be answered.
While doing so, it would be proper to deal with the additional issue on maintainability of the reference as well. More than a decade back, the Hon'ble Supreme Court of India in the case of S.C.Advocates-on-Record Association vs. Union of India reported in AIR 1994 SC 268 observed as under:
"89. In a democratic polity, the Supreme power of the State is shared among the three principal organs - Constitutional ::: Downloaded on - 09/06/2013 15:56:06 ::: 51 Functionaries - viz., the Legislature, the Executive and the Judiciary. Each of the functionaries is independent and supreme within its allotted sphere and none is superior to the other. As pointed out in Subhash Sharma (1991) A.I.R. SCW 128) (supra), Justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice as stipulated in the preamble of the Constitution and the Judiciary, therefore, becomes the most prominent and outstanding wing of the Constitutional system of fulfilling the mandate of the Constitution."
"90. The Constitutional task assigned to the Judiciary is in no way less than that of other functionaries - Legislative and Executive. Indeed, it is the role of the Judiciary in carrying out the Constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the Constitution by checking excessive authority of other Constitutional functionaries beyond the ken of the Constitution.
In that sense, the Judiciary has to act as a sentinel of qui vive."::: Downloaded on - 09/06/2013 15:56:06 ::: 52
"94. The Indian Judicial system being pyramidic in character is an integrated one in contradiction to the duel system of USA and Australia. Our Judicial system is vertically structured with this Court (Supreme Court) at the Apex with the intervening layers of consisting of subordinate judiciary at the grassroots level, District Judge at the middle level and the High Court at the State Level."
"345. The role of the Judiciary under the Constitution is a pious trust reposed by the people. The constitution and the democratic quality thereunder shall not survive, the day judiciary fails to justify the said trust. If the judiciary fails, the constitution fails and the people might opt, for some other alternative."
"347. Independence of judiciary is the sine qua non of democracy. So long as the judiciary remains truly distinct from both the Legislature and the Executive, the general power of the people can never be endangered from any quarters. Montesquieu in his Book "Spirit of Laws" observed " there is no liberty if the power of judging be not separated from the Legislative and the ::: Downloaded on - 09/06/2013 15:56:06 ::: 53 Executive powers". The framers of the Constitution made it known in an emphatic - voice that separation of judiciary from executive which is the life line of 'independent judiciary' is a basic feature of the Constitution. Dr.B.R.Ambedkar in his speech in the Constituent Assembly Hall on June 7, 1949 observed as under:-
"I do not think there is any dispute that there should be separation between the executive and the judiciary and in fact all the articles relating to the High Court as well as the Supreme Court has prominently kept that object in mind."
Thus, it is clear that provision of speedy justice is an obligation of the State for, otherwise, the operation of the legal system \would not promote "Justice" which is assured in the Preamble. Together with Article 39A which speaks of equal justice and legal aid, Article 21 has been interpreted by the Hon'ble Supreme Court accordingly. The question is of speedy and inexpensive justice. Article 226 is a remedy, which is inexpensive and expeditious. It is not the same as a suit in a civil Court. It would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226 of the Constitution of India. In ::: Downloaded on - 09/06/2013 15:56:06 ::: 54 any event, procedure is not everything. In AIR 1989 SC 2206 (owners and parties interested in M.V. "Vali Pero" vs. Fernandio Lopez), this is what the Supreme Court observed about Rules of Procedure :
"18. Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible constructions, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to sub-serve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted ::: Downloaded on - 09/06/2013 15:56:06 ::: 55 while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system."
"26. We end on a melancholy note for the past with hope for a better future. At a time when the minds of all of us are rightly exercised by the proverbial laws delays and innovations are being made and suggested to prevent the apprehended collapse of the existing system, the course of this litigation leaves us sad. No degree of thought can help unless translated into action. A more pragmatic appreciation and interpretation of the Rules of procedure with due despatch would certainly have considerably shortened the litigation so far....."
28] This Full Bench has been constituted because a Division Bench of this Court passed an order on 18th March 2009 in Civil Writ Petition No. 6597 of 2007 (Vinayak Hari Kulkarni & Ors. Vs. State of Maharashtra & Ors.) for short, Vinayak's case along with companion matters that the judgement and order of another Division Bench of this Court in W.P.No. ::: Downloaded on - 09/06/2013 15:56:06 ::: 56 6408 of 2006 (Satish Dattatray Nadgauda Vs. State of Maharashtra) decided on 3rd May 2007 requires re-consideration by a larger bench.
Expressing such view, the latter Division Bench consisting of Hon'ble Mr.Justice Mhase and Hon'ble Mr.Justice Karnik directed the Registrar (Judicial) to place this matter before the Hon'ble Chief Justice to make appropriate reference to a larger bench. While it is true that there was no specific question framed in the reference order but what was indicated was a broad disagreement with the earlier view in the field. The Full Bench, constituted by Hon'ble then Chief Justice to resolve the issue and render an authoritative pronouncement, though it fit to frame one question for being answered. The question framed deals with the merits of the Reference. It was framed on 14th August 2009. The order made to that effect reads thus:-
"Rule 2 provides that any application made before the Court should be in English and any documents which are not in English, typed copies of such documents in English translation shall be filed before the Court. However, this rule has a proviso which provides that "provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied ::: Downloaded on - 09/06/2013 15:56:06 ::: 57 whenever an order in that respect is made by the Court in a particular proceeding." It appears that this proviso was not a part of the Rule but was added by a Notification in the year 1986. This proviso is the subject matter of controversy. A learned Division Bench of this Court held this proviso to be unconstitutional whereas another Learned Division Bench has not agreed with the views of the said bench. We have perused the orders of both the Learned Division Benches and we feel that since one Bench did not agree with the other Bench, a reference was made to Full Bench and as a result the matters have come before this bench.
Since no question has been framed in the order of reference and, therefore, we frame the following question:-
"Q. Whether the proviso to Rule 2(i) of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 is unconstitutional?"
Learned Counsel appearing for the petitioner supports the Rule.
Learned Counsel appearing for the High Court also supports the Rule as the High Court has framed the said Rule. There is no Counsel appearing who holds the view that the Rule is ultra vires. The Court would appreciate that ::: Downloaded on - 09/06/2013 15:56:07 ::: 58 all the aspects of the matter are argued so that the Court reaches to the correct conclusion as the question itself is important. Therefore, we request Shri Rafique Dada, Senior Advocate, to assist the Court in the present matter as an amicus curiae. Let the papers be served on Shri Dada. Shri Dada can appoint on record Advocates of his choice. The matter shall be listed on 4/9/2009 at 3.00 p.m."
29] Subsequently, the composition of the Full Bench changed and on 8th January 2010, the following order came to be made by it:-
"1. We have heard the learned Counsel for the parties as well as Mr.Rafiq Dada, the learned Amicus Curiae.
2. We have perused the reference order dated 18th March 2009 as well as the order dated 14th August 2009 passed by the Full Bench and the question to be decided in this reference.
3. Having regard to the declaration made in Writ Petition No.6408 of 2006 and the prayers made in Writ Petition No.6597 of 2007 and Writ Petition (St) No.24274 of 2007, we frame the following additional issue to be decided at the threshold.
"(i) Whether Rule 2(i) of Chapter XVII of the Bombay ::: Downloaded on - 09/06/2013 15:56:07 ::: 59 Appellate Side Rules, 1960 could be a subject matter for reference about its Constitutional validity, when the said rule has already been declared to be unconstitutional in Writ Petition No.6408 of 2006."
4. The learned Counsel submitted that they need some time to address on the issue framed by us and it is agreed that in the next sitting, the reference arguments will be concluded. Next date will be communicated depending upon availability of all the members of the Full Bench."
30] Thus, the earlier order and the latter order both reproduced above constitute the basis for this reference to the larger bench. While it may be true that the latter full bench order frames an additional issue to be decided at the threshold, the fact remains that a different opinion is expressed by two Division Benches while deciding Nadganda's case and W.P. No.6597 of 2007 (Vinayak's case). Once the conflict in views is noticed, the question framed on 14th August 2009 needs to be answered. In my humble opinion, the reference, therefore, cannot be decided only on the basis of the additional question framed on 8th January 2010.
::: Downloaded on - 09/06/2013 15:56:07 ::: 6031] Rule 2 of Chapter XVII of High Court Rules reads as under:-
"2.(i) Accompaniments to the application - The applicant shall annex to his application typed copies of judgements and/or orders of the lower courts or Tribunals and of affidavits and other relevant documents which are in English, or, where any of such documents are not in English, typed copies of translations in English of such documents. He shall file along with the application a duplicate copy of the application with the said annexures for the use of the Court. Both the original and the duplicate copy with the prescribed annexures shall be duly paged and indexed:
{Provided that such translations would not be necessary if the documents are in Marathis and if the party or the the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceedings.} "Translations - Any translations, other than official translations, annexed to the application shall be either certified to ::: Downloaded on - 09/06/2013 15:56:07 ::: 61 be true by the Advocate for the applicant or supported by an affidavit of the applicant affirming that the translations are true.
(iii) Accompaniments to applications against orders of Revenue Tribunal - In applications against the orders of the Revenue Tribunal, the applicant shall, in additional, file a true copy each of the judgement and/or order of the Revenue Tribunal and certified copies of the judgement and/or orders of the Prant Officer, Mamlatdar or such other officer concerned in the proceedings."
(iv) Accompaniments to applications against orders of Election Tribunal - In an application against the order of an Election Tribunal, the applicant shall, in additional to the Annexures and accompaniments specified above, supply a typed copy of the memorandum of the application."
32] A Division Bench of this Court in a decision delivered on W.P.6408 of 2006 decided on 3rd May 2007 (Nadgauda's case) was concerned with a challenge to the legality and propriety of Government Resolution (GR) dated 29th July 2006, 25th November 2005, which G.R.s. Pertain to revised criteria for regularising posts other than Teachers in the Private Partial, ::: Downloaded on - 09/06/2013 15:56:07 ::: 62 whole Time Grant, Secondary, Higher secondary schools, classes of higher secondary/ Junior Colleges, Military Schools in the State of Maharashtra.
The GR dated 29th July 2006 was the revised criteria for similar posts.
33] The Division Bench was of the opinion that considering Article 348 of the Constitution of India, English translation of this G.R.s were not available, although they are prima facie issued in exercise of subordinate legislation.
34] Firstly, referring to Article 348(1)(b) of the Constitution then to the Maharashtra Official Languages Act, 1964 and to the affidavit of the Government of Maharashtra, the Division Bench held that while exercising administrative powers under Article 154 of the Constitution of India, there is no requirement that English translation of G.Rs. Or administrative decisions must be made available.
35] However, in para 5 of the judgement of this Division bench the Court expressed the opinion that another issue arises with regard to the proceedings in this Court, including writ petitions. The court was also of the opinion that why proceedings in this Court, including writ petitions ::: Downloaded on - 09/06/2013 15:56:07 ::: 63 filed, were not in the English language considering practice notes filed from time to time. After referring to the Rule making power conferred by the G.Rs. and the practice notices, so also Article 348, the Division Bench came to the conclusion that there is nothing like the High Court of Judicature at Bombay insofar as State of Goa is concerned. There is a common High Court for two states and also the Union Territories which have different official languages. The Court was of the opinion that the proviso to Rule 2(i) of the Chapter XVII High Court Rules, does not reflect the present reality viz., common High Court for two states as also Union Territories which have different official languages. According to the Division Bench proviso of Rule 2 (i) does not take into consideration section 20 of Goa, Daman, Diu Re-organisation Act, 1987.
36] In para 9 of this judgement, the Division Bench refers to Article 348 and the meaning of the term "proceedings". It refers to the Dictionary meaning from Law Lexicon by P.Ramanatha Iyer and certain decisions interpreting the said term rendered by the Supreme Court. The Division Bench then concluded in paras 13 and 14 as under:-
"13. From the above discussion, it would be clear and we hold ::: Downloaded on - 09/06/2013 15:56:07 ::: 64 that the proviso to Rule 2(1) of Chapter XVII of the High Court Appellate Side Rules would be ultravires Article 348(1)(a) of the Constitution of India. At the same time, we can take into consideration the fact that what is required is speedy disposal of the matters and avoid undue hardship to the litigants, whilst respecting the constitutional mandate. In that context it may be possible to distinguish the documents as those on which the relief is sought and other documents."
"14. In that context, we declare the proviso to the said Rule as null and void. However, till this court takes an appropriate decision on its administrative side, in our opinion, it would be appropriate, by way of interim directions, to follow the procedure set out below, which is based on the practice note issued earlier by the Chief Justice of this High Court.:-
"(i) When the judgement, order, Government Resolution/ Circular or notification or other document under challenge, is not in English and when the Advocate/ party wants to rely upon the judgement, order, Government Resolution/ Circular, ::: Downloaded on - 09/06/2013 15:56:07 ::: 65 notification, document which are not in English, typed or xerox copies of the translation in English of such judgement, order, Government Resolution/ Circular shall be produced;
(ii) When the Advocate/ Party wants to produce and refer to other documents, the Advocate/ party shall give an undertaking at the time of filing the petitions that typed English translation thereof shall be produced, if required by the Court."
37] Thus, the Division Bench declared proviso to rule 2(i) as null and void and substituted the same by way of an interim arrangement as set out in para 14.
38] The latter Division Bench of this Court dealing with W.P.No.6597 of 2007, (Vinayak's case) after noticing the judgment of earlier Division Bench and finding that the proceedings before them were initiated under Bombay Inferior Village Vatan Abolition Act and most of the annexures including impugned order was in Marathi, the petitioner before it prepared the petition and while filing it, he was informed by the Registry of this Court that unless all Annexures or in any case the impugned order was ::: Downloaded on - 09/06/2013 15:56:07 ::: 66 translated from Marathi to English, the writ petition would not be entertained. The petitioner, therefore, complained to the Court that because Annexures are not translated into English non acceptance of petition on this ground was an act contrary to the provisions of Constitution of India. The Registry brought to the notice of the latter Division Bench, the earlier ruling and that is how the latter division bench considered the matter.
39] There were several intervention applications and in para 9 the Division Bench held that it is concerned only with the declaration by the earlier Division Bench insofar as the proviso to Rule 2(i) of Chapter XVII of High Court Rules. The Division Bench referred to the objection raised before it that there was no challenge by the petitioner in W.PNo.6408 of 2006 to this rule and yet, the earlier division bench in Nadgauda's case considered that issue. Thus, the arguments of the Counsel have been referred to and in paras 12, 13 and 14 the Division Bench held thus:-
"12. We have already noted that the issue of validity of the proviso Rule 2 to Chapter XVII has been dealt with by the Division Bench without issuing a Notice to the Advocate General which is one of the requirement whenever the constitutional ::: Downloaded on - 09/06/2013 15:56:07 ::: 67 validity of Indian Law or provision of Rule is under challenge.
Apart from this, what we notice is that the Bombay High Court Appellate Side Rules, 1960 and The Bombay High Court (Original Side) Rules have been framed by this Court under Article 225 of the Constitution of India and Sections 122, 125 and 129 of the Code of Civil Procedure and with all other enabling provisions in this respect provided in the various Statutes. Under Article 225, this High Court being an existing High Court, the respective powers of the Judges thereof in relation to the administration of Justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts shall be the same as immediately before the commencement of this Constitution.
Therefore, under Article 225, the power to make rules of the Court is with the High Court and Judges of the High Court. As per section 117 of the Code of Civil Procedure, save as provided in this Part (part IX) or in Part X or in the Rules the provisions of the Code shall apply to High Courts. Section 122 provides that the High Courts may, from time to time, after previous publication, make rules regulating their own procedure and the procedure of the ::: Downloaded on - 09/06/2013 15:56:07 ::: 68 Civil Courts subject to their superintendence and may by such Rules annul, alter or add to all or any of the Rules in the First Schedule. Section 123 contemplates a committee to be constituted for the Rule making. Under Section 124, the said Committee shall make a report to the High Court established at the town at which is constituted on any proposal, to annul, alter, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.
Under Section 126, the rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the rules regulate is situate or, if that court is not situate in any State, to the previous approval of the Central Government. Section 127 contemplates that the rules so made and approved shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule. So far as the criminal matters are concerned, under section 477 of the Code of Criminal Procedure, the High ::: Downloaded on - 09/06/2013 15:56:07 ::: 69 Court may, with the previous approval of the State Government, make rules as provided in the said section. Therefore, what is to be noted is that under these rules making powers, the Appellate Side Rules and the Original Side Rules have been framed by the High Court and they are on the statute book."
"13. It was nobody's case that the procedure as required under these provisions was not followed. On the contrary, we note that the Affidavit has been filed by the Registrar (legal) that under these rule making powers, the rules have been framed. The issue under consideration was as to whether the said proviso is violative of Article 348 and before striking down the rule, the notice was issued to the Advocate General. However, nothing has been pointed out whether the proviso was pursuant to the decision of the Rules Committee if the proviso was made in exercise of the powers under section 122 of the Code of Civil Procedure. In fact, there is a presumption of law in favour of the said procedure being followed and it was for the party who asserts that the said procedure has not been followed to bring on record the facts which will show that the said procedure as provided under section 122 ::: Downloaded on - 09/06/2013 15:56:07 ::: 70 was not followed while inserting the said proviso. Therefore, we find substance in the contention of the learned Counsel that the issue was raised otherwise and it was considered otherwise."
"14. The courts are made for the public at large and for the redressal of their disputes. It is also expected that the Justice delivery system should be easily accessible to the citizens and justice should be delivered at the lowest possible cost. Therefore, the easy access, cheaper justice system and speedy decision are the best factors of any judicial system from the view point of the citizen. Any citizen is better placed in expression in his own language. However, we are not called upon to venture upon this larger issue. We have to consider the Rules which provide filing of annexures in proceedings before this Court that whenever the Court directs, the translation will be submitted......."
40] Thereafter, the High Court (OS) Rules were also referred and in para 16 and this is what is held:-
"16. If we look at Article 350, Article 348 has not over-::: Downloaded on - 09/06/2013 15:56:07 ::: 71
riding effect over it. Even though both the Articles are in the same Chapter of the Constitution, the only inference which can be drawn is that the makers of the Constitution have, under the Constitutional scheme, purposefully placed Article 350 after Article 348. Article 348 gets an over-riding effect in respect of the foregoing Articles of the said Chapter which commences from Article 343. Therefore, while seeking access to courts, the citizen is entitled to rely upon Article 350 and what we find is that the above referred provisions from the Appellate Side Rules, more specifically the provision like Rule 3 of Chapter IV which permits the citizen to file a memorandum of appeal, cross-objection, applications or the petitions in Marathi, Hindi or English, whenever he presents it personally. Rule 5 of the said Chapter requires an Advocate to file the same documents in English.
However, all the Rules which have been quoted above which speak about the annexures to the petitions, cross-petitions, memorandum of appeal or to the applications, criminal appeals etc. to be filed in English but if they are in Marathi they can be filed with an undertaking that English translation would be submitted as and when such orders are passed by the court.::: Downloaded on - 09/06/2013 15:56:07 ::: 72
Marathi is the official language of the State of Maharashtra. Most of the transactions in the State of Maharashtra are done in Marathi and, therefore, the proviso has been made at every place as enumerated above that if the document is in Marathi it will be accepted. However, if, for whatever reason, the court desires that the translation should be submitted then the Court desires that the translation should be submitted then the court will pass an order to that effect and thereafter procedure provides the translation will be placed on record. Even if we look at the procedure on the Original Side, the Original Side procedure does not prohibit production of document in a language other other than English.
But, it has made a provision that the said document should be translated through the office and copies of the said document shall be made available to the other side. The machinery of the translator has been established on the Appellate Side and Original Side. Only for the purposes of translating the proceedings or the documents which are placed in languages, other than English, it appears that probably in 1986, it was considered that most of the Judges of the Bombay High Court knew Marathi language. If there was any Judge who did not know Marathi, he can make an ::: Downloaded on - 09/06/2013 15:56:07 ::: 73 order for translation of the documents and the translation could be made available to him. The purpose of allowing Marathi documents to be filed seems to minimise the costs of litigation to spare time to prepare the translations and to make the justice delivery system easily accessible to the litigants. Therefore, such a proviso must have been included. This is in consonance with Articles 350 and 39A of the Constitution. This aspect of the matter has not been considered by the Division Bench. The Division Bench only considered Article 348(2), but what we find is that the Division Bench has not, with respect, looked into Articles 350 and 39A of the Constitution of India while considering the vires of the said provision."
41] Subsequently, in para 17, the Division Bench in Vinayak Hari Kulkarni's case i.e., the latter Division Bench referred to section 20 of the Goa, Diu and Daman Re-organisation act and concluded that there is substance in the arguments canvassed on behalf of the petitioner in that case, viz., that, only because the regional language of Goa, Dadra Nagar-
Haveli, Daman and Diu is not reflected in the rules and that only Marathi language is covered thereby, it cannot be said that the rule is bad. Further, ::: Downloaded on - 09/06/2013 15:56:07 ::: 74 the Division Bench noted that what the petitioners are contending is that they may be allowed to file annexures in Marathi language, which is official language of the State of Maharashtra and the Rules permitting access to justice should be interpreted so as not to deny the right to seek justice from the court of law. The Division Bench held that while interpreting Article 348 of the Constitution of India, it would be necessary to keep in mind Article 39A and 350 thereof so also the scheme of early disposal of the matters, easy access to justice and cheaper judicial system.
42] It is in such circumstances that the Division Bench held that what has been observed by them is not in the capacity of appellate authority over a coordinate bench but being aware of their limitations, they stated that while recording a different opinion, they can only make a reference to larger bench for consideration. They placed their disagreement on record and held that the matter requires re-consideration. It is in that context the ultimate direction to the Registrar (Judicial) of this Court to place the matter before the Hon'ble the Chief Justice for making reference to a larger bench for considering the issues which have been raised by the petitioner in W.P.6597 of 2007, must be seen.
::: Downloaded on - 09/06/2013 15:56:07 ::: 7543] It is in such a situation that the papers were placed before the then Hon'ble Chief Justice who constituted a larger bench. It is not possible to read the direction of the Hon'ble Chief Justice in isolation but it must be seen in the backdrop in which the Full Bench was constituted and a reference came to be made. The Hon'ble Chief Justice had before him two different views as to whether Article 348(i)(a) of the Constitution of India would be violated merely because a writ petition under Article 226 and 227 of the Constitution of India is filed accompanying Marathi documents coupled with a undertaking of the Advocate filing it to produce the English Translation as and when required by the Court. It is in such circumstances that the Chief Justice constituted the larger bench. Therefore, with respect, it would not be possible to hold that the Latter Division Bench differing with the earlier view having not framed any question or issue for being answered by a larger bench, so also the administrative order of the Chief Justice being silent this Full Bench can frame a question of maintainability of the reference and deal with it, While answering the reference. In a given case, a Full Bench can frame the question of maintainability of the reference made to it while dealing with the same. However, in this case in my respectful view, if the two differing judgements are perused carefully and the dissent or difference of opinion is noted, then, it is not possible to ::: Downloaded on - 09/06/2013 15:56:07 ::: 76 hold that the reference should be returned unanswered. If this was to be the final word, then, the earlier Full Bench would not have passed an order on 14th August 2009 framing a question for being answered by the Full Bench.
44] I have reproduced that order only to highlight the fact that the question was framed in the light of differing judgements and respecting the order of the Hon'ble Chief Justice constituting a Larger Bench. When there was no specific question framed in the dissenting order or judgement, it was permissible for the Full Bench to frame it. In the peculiar facts of this case, it cannot be concluded that the reference deserves to be returned.
That would mean going behind the order of the Hon'ble Chief Justice constituting the Full Bench and referring the matter to it. Similarly, that would amount to holding that merely because the composition of a Full Bench has changed, the order dated 14th August 2009 of a Full Bench need not be adhered to. At the most, maintainability of the Reference may be an issue but it is framed in addition to the main question. There is no compulsion to answer it once the main issue is addressed. It may be true that it is open for the present Full Bench to frame another question on the maintainability of the reference, yet, with great respect, the reference cannot be returned without answering the core issue. All parties including ::: Downloaded on - 09/06/2013 15:56:07 ::: 77 the High Court have addressed the Division Benches and this Full Bench extensively on this issue viz, constitutional validity of the proviso to Rule 2(i) of the High Court Rules. If the arguments have touched a broader canvass and the constitutional validity of the rule framed by this Court is under challenge, then, interest of justice demands that the reference should be answered on merits and should not be returned.
45] Apart from this, Judicial Discipline also demands that the Full Bench respects the order of reference made by the Hon'ble Chief Justice. The order of reference made to a larger bench by the Chief Justice was pursuant to two differing judgements and orders of two Division Benches. It is not possible to conclude that having perused them and noting that one Division Bench has struck down the rule while the latter division bench has not agreed with the conclusion and reasoning on which it was struck down, the Chief Justice was unaware of the legal position that the proviso to rule 2(i) is not on the rule book in the form in which the same has been made and incorporated. Despite being aware of the earlier division bench judgement striking down the proviso, in the backdrop of detailed judgement of a latter division bench holding that the rule is constitutionally valid and is not null and void that this reference has been made. Therefore, it will not be ::: Downloaded on - 09/06/2013 15:56:07 ::: 78 possible to now conclude that the Hon'ble Chief Justice when making the reference was not aware of the limitations on the powers of the latter division bench deciding Vinayak's case. It is clear that being aware of the limitations on the power that the latter division bench does not sit in appeal over the judgement of the earlier division bench but can only express its dissent or difference of opinion that the reference has been made by the Hon'ble Chief Justice. It is not possible to return this Reference unanswered because it would amount to holding that the Hon'ble Chief Justice was unaware of the legal position when he made the order of reference. It is not possible to hold that the Hon'ble Chief Justice merely approved the submission or report of the Registrar (Judicial) of this Court and placed the matter mechanically before us by constituting a larger bench. In my humble opinion, apart from showing disrespect to the order and direction of the Hon'ble Chief Justice, returning the reference would mean going behind the order and direction making a reference and constituting a larger bench for deciding it. To my mind, that is not permissible in the peculiar facts of this case. I am of the opinion that the Full Bench must, therefore, not return the reference but answer it. It should answer it on merits, because Larger Public Interest demands such a course.
Ultimately, the basic issue is of constitutional validity of a Rule made by ::: Downloaded on - 09/06/2013 15:56:07 ::: 79 the High Court in exercise of its constitutional and statutory power. Its competence to frame it is not disputed. The High Court defended the Rules and the proviso to Rule 2(i) by urging that it is a matter of procedure and there is nothing unconstitutional or illegal about it. The Rule together with the proviso is on the Rule book for more than a decade. No litigant has challenged it. There is a presumption about its validity and constitutionality and the burden is on those who question it. However, one Division Bench struck down only the proviso and not the Rule 2(i) in its entirety and another recorded its disapproval with such a conclusion by a reasoned order. Thus, an authoritative pronouncement was sought by the High Court as well. That apart, the litigants and advocates approaching the Court must know what is the final opinion of this Court on such a crucial issue. It concerns the right to seek a judicial review. They ought to know the procedural requirements before they approach us seeking Justice and whether their Writ Petition will be entertained, if the accompaniments in Marathi are tendered. In other words, whether a writ petition prepared in English but with Marathi Annexures will be accepted by the Registry, if the petitioner's/ party's Advocate gives an undertaking to produce an English Translation as and when required by the Court, or not, is something very vital for the public at large and must be decided once and for all. That there ::: Downloaded on - 09/06/2013 15:56:07 ::: 80 should not be any uncertainty on such a procedural aspect is a legitimate expectation of everybody. In my humble opinion, we are duty bound to answer the reference on merits in such a situation. More so, when the state and High Court Administration strongly supports the subject proviso. It is supported on various grounds including that presentation of appeals and applications including Public Interest Litigations by a party in person may be either in Marathi or Hindi or in English but English translation of memo of appeals, cross-objections, applications or petitions shall be required whenever a specific order in that respect is passed (Chapter IV, Rule 3 of the Bombay High Court Appellate Side Rules). Further, Marathi is the official language of the State.
46] This is one more reason for my dissenting note on this aspect. Such contingencies and cases may rise in future as well. A Division Bench may strike down a particular statutory provision or part of it or a rule or regulation and such a judgement may be cited as a binding precedent before another division bench. It would be too much to suggest that merely because the earlier division bench has struck down the statutory provision or rule or regulation in question and that it is temporarily efaced from the statute, that the latter division bench is precluded from considering any ::: Downloaded on - 09/06/2013 15:56:07 ::: 81 submission or argument supporting its validity and legality. It would necessarily mean that without expressing any dissent, the latter division bench is obliged and bound by the decision of the coordinate bench even though it may not agree with the reasoning or ultimate conclusion recorded in it. The judicial system does not work on these lines. A healthy debate, discussion and dissent is part and parcel of its functioning and working.
While judicial discipline demands that a binding precedent should not be ignored, brushed aside and must be followed, yet, there are inbuilt safeguards, checks and balances. Expressing different view or dissenting opinion is not prohibited. In the case of Mumbai Kamgar Sabha Vs. Abdul Bhai Faizullah Bhai & Ors.) A.I.R. 1976 S.C. 1455, the Supreme Court speaking through His Lordship Mr.Justice Krishna Iyer held thus:-
"38. It is trite, going by Anglophonic principles, that a ruling of a superior court is binding law. It is not of scriptural sanctity but is of ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milieu we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prison-house of bigotry, regardless of varying circumstances and myriad ::: Downloaded on - 09/06/2013 15:56:07 ::: 82 developments. Realism dictates that a judgement has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of subordinate court's casual observations, generalisations and sub-silentio determinations must be judiciously read by courts of co-ordinate jurisdiction and, so viewed, we are able to discern no impediment in reading Ghewar Chand (AIR 1969 SC 530) as confined to profit bonus leaving room for non-statutory play of customary bonus."
47] The Hon'ble Supreme Court has time and again emphasised that rule of stare decisis is not absolute. It is always open for parties to point out that a decision of a coordinate bench of the High Court may be binding but the principle of finality of judgement cannot be stretched to such an extent so as to make it impossible for a coordinate bench to disagree with it.
Precisely for such a reason within the bounds of judicial discipline, provision is made for making a request that a larger bench should consider the matter, when, despite due deference to the coordinate benches' ruling, a Bench of same strength holds that it is not possible to agree with it. The principles of finality of judgement, rule of judicial precedents and certainty ::: Downloaded on - 09/06/2013 15:56:07 ::: 83 of law do not rule out such a situation. There is no prohibition and in fact the settled principle is that a coordinate bench must not refuse to follow a binding judgement of a bench of equal number of Judges but if it holds another view, it must record its dissent and request the Hon'ble Chief Justice to constitute a larger bench. That is permissible and ordinarily and normally done. On numerous occasions such a situation arises not only in this Court but even in the Hon'ble Supreme Court. It is not possible to hold that when the proviso to the rule has been struck down by the Division Bench in Nadgauda's case the latter division bench was prohibited from entertaining a petition so also considering an argument that decision in Nadgauda's case striking down proviso to rule 2(i) requires reconsideration.
If it is not prohibited from entertaining such a petition and considering the argument, then, merely because it records a dissenting view does not mean that the latter division bench has refused to follow a binding precedent.
The Division Bench in Vinayak's case did not commit any judicial indiscipline. On the other hand, it felt bound by the ruling in Nadganda's case but did not agree with it for reasons recorded, this is not a case of brushing aside a binding precedent but a genuine disagreement with the co-
ordinate bench. This is what the earlier Full Bench also thought when it passed the order of 14th August 2009. With his usual fairness, the learned ::: Downloaded on - 09/06/2013 15:56:07 ::: 84 Amicus Curaie Mr.R.A.Dada, Senior Counsel also did not canvas such a extreme proposition. He did not cite any judgement holding that the latter Division Bench was precluded from considering the submissions noted in its dissenting order. Therefore, the earlier division bench having struck down the proviso, the latter division bench could not have gone into the issues and considered the submissions is a conclusion with which I respectfully disagree. In Nadgauda's case, It is not as if the entire rule has been struck down. Rule 2 continues on the rule book and it is only the proviso below rule 2(i) which has been struck down as null and void.
48] Further, the latter division bench in Vinayak's case was considering an issue as to whether the petitioner Vinayak was prohibited from filing a petition annexing Marathi documents and whether the Registry was right in refusing to take the same on file or accept it merely because, it contained Marathi accompaniments. When such was the issue raised (before the division bench deciding Vinayak's case) and during the course of argument, the earlier view of a Division Bench in Nadgauda's case was placed before the latter division bench, that the latter division bench expressed its dissent.
It expressed its dissent because it did not agree with the manner in which the proviso came to be struck down so also the reasoning on which the ::: Downloaded on - 09/06/2013 15:56:08 ::: 85 conclusion in Nadgauda's case was based. It is not as if the proviso being efaced temporarily from the rule book that the division bench was precluded from going into any argument on acceptance of a writ petition under Article 226 and 227 of the Constitution of India with Marathi Annexures.
49] In Vinayak's case it was contended before the Division Bench that Nadgauda's case was not correctly decided. The Counsel submitted that the view taken in Nadgauda's case requires re-consideration. For the reasons recorded by the latter Division Bench it found substance in that submission and argument. Once it finds substance, rule of judicial discipline and the binding nature of coordinate bench decision demanded that the latter Division Bench gives reasons for its dissent and requests the Hon'ble Chief Justice to place the matter before a larger bench for reconsideration of the view taken in Nadgauda's case. Such a course is not prohibited because an earlier division bench strikes down the proviso as null and void and that results in efacing or removing the proviso from the rule book. Ultimately, what is before a coordinate bench of this Court is a decision and ruling declaring a particular provision as null and void. As long as that judgement and decision is not reversed, over-ruled or set aside, ::: Downloaded on - 09/06/2013 15:56:08 ::: 86 it continues to bind everybody. However, the moment it is overruled, reversed, quashed or set aside, then, the law declared by it loses its binding nature and character. The moment it so loses it, then, its declarations or directions holding and declaring a provision to be null and void does not survive. While overruling, reversing or setting aside a judgement or order, it is open to the larger bench or higher court to issue a declaration or to pass an appropriate order and direction. Once the rule is struck down by a Judicial declaration, it remains in that state till the declaration is set aside or reversed in appropriate proceeding. A declaration of this nature may be accepted by a party to the lis, by not challenging it. However, as far as the Court is concerned, the judgement and declaration binds it so long as it is not reversed. The reversal is permissible by resorting to proceedings recognised in law. There are several situations which could be cited for illustration. A Single Judge of the High Court may declare a provision of law to be unconstitutional, invalid and, therefore, null and void. In an intra-
court appeal this decision may be reversed. The moment it is reversed, necessarily, the position in law is that the Rule was always Legal and valid. Similarly, if the judgement of a Single Judge is cited before a Division bench for its persuasive value or when an identical issue is raised before it and during the course of its decision, the division bench overrules ::: Downloaded on - 09/06/2013 15:56:08 ::: 87 Single Judge's view it necessarily means the same effect must follow. The same consequence follows, if a coordinate bench does not agree with the view, refers it for consideration of a larger bench and the larger bench overrules it. The position is not different because validity or legality of a rule or a statutory provision is in question. The Judiciary alone is vested with the power to interpret the law under the Constitution of India and the interpretation of law and judicial review is part and parcel of basic structure of Constitution of India. (See A.I.R. 1997 S.C. 1125 - L.Chandra Kumar vs. Union of India).
50] The predominant function performed by the judiciary is of adjudication. It does not make law. However, when a law is challenged before it, it gives a declaration either by upholding it or nullifying it. In the very hierarchy of the judicial system, such a declaration is valid until it is over ruled, reversed and/or set aside. The declaration of law by a court is in force till it is final. Its finality is not for all times to come and a permanent feature. The fact that it can be altered, reversed and set aside by itself would show that the finality attached to it is subject to the remedies available to parties to question it and the jurisdiction, authority and power of a higher or superior court in the legal scheme. It is not that only an ::: Downloaded on - 09/06/2013 15:56:08 ::: 88 appeal, revision or supervisory jurisdiction is the only mode available for impugning and/or questioning the correctness of a judgement or verdict.
These are remedies available to a party or litigant. The court's power to make reference would take within its import also questioning its earlier declaration that a particular statutory provision or rule is null and void.
Ultimately, it is a judgement inter-parties which later on becomes a precedent. Such a decision or precedent can be dissented or differed from and referred to a larger bench. Once the larger bench renders its verdict upholding it, then, qua that court, a finality attaches to that judgement and verdict. A larger bench may agree with one or uphold the other view. If it agrees with the view that the rule is constitutionally valid, then, necessarily the other view is overruled. In such circumstances merely because the proviso was struck down in Nadgauda's case does not mean that a reference to a larger bench by differing with that decision or judgement was impermissible. If it was permissible, then, irrespective of whether the rule is struck down or not ultimately that decision and/or verdict is capable of being differed and dissented from. Precisely that has happened in this case.
With deepest respect, I for one thought that the issue of maintainability of the reference ought not detain us in the light of authoritative Judicial Pronouncements in the field. In Union of India Vs. Raghuvir Singh ::: Downloaded on - 09/06/2013 15:56:08 ::: 89 reported in A.I.R. 1989 S.C. 1933, the Hon'ble Supreme Court dealt with a identical situation and objection. The question was of applicability of the Amendments made to the Land Acquisition Act, 1894 by the Amendment Act of 1984. A three Judge Bench decision rendered on 14th August 1985 was cited as a binding precedent before a two Judge Bench of the Supreme Court on 23rd September 1985. They adverted to all earlier views and referred the matter for re-examination of a Larger Bench. When the larger bench (Five Hon'ble Judges) sat to decide the Reference an objection was raised about the maintainability of the Reference and while over-ruling the objection, this is what is held by the Constitution Bench:-
6. At the outset, a preliminary objection has been raised by Shri B.R.L. Iyengar to the validity of the reference of these cases to a larger Bench. He contends that the mere circumstance that a Bench of two learned Judges finds itself in doubt about the correctness of the view taken by a Bench of three learned Judges should not provide reason for referring the matter to a larger Bench.
The preliminary objection raised by Shri Iyengar has been vigorously resisted by the appellants. Having regard to the submissions made before us, we think it necessary to lay down the ::: Downloaded on - 09/06/2013 15:56:08 ::: 90 law on the point.
7. India is governed by a judicial system identified by a hierarchy of courts, where the doctrine of binding precedent is a cardinal feature of its jurisprudence. It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior courts."There was a time:' observed Lord Reid, "when it was thought almost indecent to suggest that Judges make law--
They only declare it ........ But we do not believe in fairy tales any more "The Judge as law Maker" p. 22." In countries such as the United Kingdom, where Parliament as the legislative organ is supreme and stands at the apex of the constitutional structure of the State, the role played by judicial law-making is limited. In the first place the function of the courts is restricted to the interpretation of laws made by Parliament, and the courts have no power to question the validity of Parliamentary statutes, the Diceyan dictum holding true that the British Parliament is paramount and all powerful. In the second place, the law ::: Downloaded on - 09/06/2013 15:56:08 ::: 91 enunciated in every decision of the courts in England can be superseded by an Act of Parliament. As Cockburn CJ. observed in Exp. Canon Selwyn, [1872] 36 JP 54.
"There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An act of the Legislature is superior in authority to any Court of Law".
And Ungoed Thomas J., in Cheney v. Conn, [1968] 1 All ER 779 referred to a Parliamentary statute as "the highest form of law .....
which prevails over every other form, of law." The position is substantially different under a written Constitution such as the one which governs us. The Constitution of India, which represents the Supreme Law of the land, envisages three distinct organs of the State, each with its own distinctive functions, each a pillar of the State. Broadly, while Parliament and the State Legislature in India enact the law and the Executive government implements it, the judiciary sits in judgment not only on the implementation of the law by the Executive but also on the validity of the Legislation sought ::: Downloaded on - 09/06/2013 15:56:08 ::: 92 to be implemented. One of the functions of the superior judiciary in India is to examine the competence and validity of legislation, both in point of legislative competence as well as its consistency with the Fundamental Rights. In this regard, the courts in India possess a power not known to the English 324 Courts. Where a statute is declared invalid in India it cannot be reinstated unless constitutional sanction is obtained therefore by a constitutional amendment or an appropriately modified version of the statute is enacted which accords with constitutional prescription. The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. The power extends to examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the Constitution. (See His Holiness Kesavananda Bharati Sripadagalavaru v.State of Kerala, [1973] Suppl. SCR 1; Smt. Indira Nehru Gandhi v. Shri Raj Narain, [1976] 2 SCR 347; Minerva Mills Ltd. and others v. Union of India and others, [1980] 2 SCC 591 and recently in S.P. Sampath Kumar etc. v. Union of India and Ors., [1987] 1 SCR 435. With this ::: Downloaded on - 09/06/2013 15:56:08 ::: 93 impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rests on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared it is, by Article 141 of the Constitution, binding on all courts within the territory of India.
9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.
10. But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for readjustment in a changing society, a re-adjustment of legal norms demanded by a changed social ::: Downloaded on - 09/06/2013 15:56:08 ::: 94 context. This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that "the life of the law has not been logic it has been experience". Oliver Wendell Holmes, "The Common Law" p. 5 and again when he declared in another study that Oliver Wendell Holmes, "Common Carriers and the Common Law", (1943) 9 Curr. L.T. 387, 388 "the law is forever adopting new principles from life at one end," and "sloughing off" old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined. Julius Stone, "Legal Systems & Lawyers Reasoning", pp. 58-59.
11. Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing ::: Downloaded on - 09/06/2013 15:56:08 ::: 95 legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as "fairness" or "reasonableness", but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters.
14. The profound responsibility which is borne by this Court in its choice between earlier established standards and the formulation of a new code of norms is all the more sensitive and significant because the response lies in relation to a rapidly changing social and economic society. In a developing society such as India the law does not assume its true function when it follows a groove chased amidst a context which has long since crumbled.
There will be found among some of the areas of the law norms selected by a judicial choice educated in the experience and values of a world which passed away 40 years ago. The social forces which demand attention in the cauldron of change from which a new ::: Downloaded on - 09/06/2013 15:56:08 ::: 96 society is emerging appear to call for new perceptions and new perspectives. The recognition that the times are changing and that there is occasion for a new jurisprudence to take birth is evidenced by what this Court said in The Bengal Immunity Company Limited v. The State of Bihar and Others, [1955] 2 SCR 603, when it observed that it was not bound by its earlier judgments and possessed the freedom to overrule its judgments when it thought fit to do so to keep pace with the needs of changing times.
The acceptance of this principle ensured the preservation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society.
15. The question then is not whether the Supreme Court is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest Court over-turn its own pronouncements.
16. In the examination of this question it would perhaps be ::: Downloaded on - 09/06/2013 15:56:08 ::: 97 appropriate to refer to the response of other jurisdictions, specially those with which the judicial system in India has borne an historical relationship. The House of Lords in England provides the extreme example of a judicial body which until recently disclaimed the power to overrule itself. It used to be said that the House of Lords did never overrule itself but only distinguished its earlier decisions. An erroneous decision of the House of Lords could be set right only by an Act of Parliament. (See Street Tramways v.
London County Council, [1898] A.C. 375 and Radcliffe v.Ribble Motor Services Ltd., ([1939] A.C. 215, 245).
Apparently bowing to the pressure of a reality forced upon it by reason of a rapidly gathering change in the prevailing socio-
economic structure, on 26 July, 1966, Lord Gardiner, L.C., made the following statement on behalf of himself and the Lords of Appeal in Ordinary:
"Their lordship regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their ::: Downloaded on - 09/06/2013 15:56:08 ::: 98 affairs, as well as a basis for orderly development of legal rules.
Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so."
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal Law."
Since then the House of Lords has framed guidelines in a series of cases decided upto to 1975 and the guidelines have been summarised in Dr. Alan Paterson's "Law Lords" 1982: pp. 156-157.
He refers to several criteria articulated by Lord Reid in those cases.
1. The freedom granted by the 1966 Practice Statement ought to be exercised sparingly (the 'use sparingly' criterion) (Jones v.
::: Downloaded on - 09/06/2013 15:56:08 ::: 99Secretary of State for Social Services,[1972] A.C. At 966.
2. A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision (the 'legitimate expectations' criterion) (Ross Smith v. Ross-Smith, [1963] A.C. 280, 303 and Indyka v. Indyka,[1969] I A.C. 33, 69.)
3. A decision concerning questions of construction of statute or other documents ought not to be overruled except in rare and exceptional cases (the 'Construction' criterion) Jones, at 966.
4(a) A decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequences of departing from it (the 'unforseeable consequences' criterion) (Steadman v. Steadman, [1976] A.C. 536,542. (b) A decision ought not to be overruled if to do so would involve a change that ought to be part of a comprehensive reform of the law. Such changes are best done 'by legislation following on a wide survey of the ::: Downloaded on - 09/06/2013 15:56:08 ::: 100 whole field' (the 'need for comprehensive reform' criterion) (DPP v.
Myers, [1965] A.C. 1001, 1022; Cassell v. Broome, [1972] A.C. 1027, 11086 and Haughton v. Smith, [1975] A.C. 476,500).
5. In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step (the 'precedent merely wrong' criterion) Knuller v. DPP, [1973] A .C. 435,455;
6. A decision ought to be overruled if it causes such great uncertainty in practice that the Parties' advisers are unable to give any clear indication as to what the courts will hold the law to be (the 'rectification of uncertainty' criterion) Jones, at 966; Oldendroll & Co. v. Tradex Export, S.A. 1974 479,533,535.
7. A decision ought to be overruled if .in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy (the 'unjust or outmoded'criterion) ibid Conway v. Rimmer, ::: Downloaded on - 09/06/2013 15:56:08 ::: 101 [1968] A.C. 910,938.
19. In the United States of America the Supreme Court has explicitly overruled its prior decision in a number of cases and reference will be found to them in the judgment of Brandeis, J.
in State of Washington v. Dawson & Co.,264 U.S. 646; 68 L.Ed.
219 where he said:
"The doctrine of Stare decisis should not deter us
from overruling that case and those which follow it. The
decisions are recent ones. They have not been acquiesced in. They have not created a rule of property around which vested interests have clustered. They affect solely matters of a transitory nature.
On the other hand, they affect seriously the lives of men, women and children, and the general welfare. Stare decisis is ordinarily, a wise rule of action. But it is not a universal, inexorable command.
The instances in which the Courts have disregarded its admonition are many."
Elaborating his point in his dissenting judgment in David Burnel ::: Downloaded on - 09/06/2013 15:56:08 ::: 102 v. Coronado Oil & Gas Company, 285 U.S. 393; 76 L.Ed. 815, Brandeis, J. observed: (at Pp.406-08 of U.S.).
"Stare decisis usually the wise policy, because in most matters it is more important that the applicable rule of law be settled right. Compare National Bank v. Whitney, 103 U.S. 99; 26 L.Ed.
443-444. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning recognising that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function."
20. The Judicial Committee of the Privy Council also took the view that it was not bound in law by its earlier decisions, but in In re Compensation to Civil Servants,L.R.1929 A.C. 242; A.I.R. 1929 P.C. 84, 87 it declared that it "would hesitate long before disturbing a solemn decision by a previous Board, which raised an identical or even a similar ::: Downloaded on - 09/06/2013 15:56:08 ::: 103 issue for determination" and reiterated that reservation in the Attorney-
General of Ontario v. The Canada Temperance Federation, L.R. 76 Q.A. 10 and Phanindra Chandra Neogy v. The King, [1953] SCR 1069.
51. Since then the question as to when should the Supreme Court overrule its own decision has been considered in several cases. Relying on the Bengal Immunity case, Khanna,J. remarked that certainly in the law, which was an essential ingredient of the Rule of Law, would be considerably eroded if the highest court of the land lightly overruled the view expressed by it in earlier cases. One instance where such overruling could be permissible was a situation where contextual values giving birth to the earlier view had altered substantially since. In Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay & Ors., [1975] 1 SCR 1 he explained:
"Some new aspects may come to light and it may become essential to cover fresh grounds to meet the new situations or to overcome difficulties which did not manifest themselves or were not taken into account when the earlier view was propounded. Precedents have a value and the ratio decidendi of a case can no doubt be of ::: Downloaded on - 09/06/2013 15:56:08 ::: 104 assistance in the decision of future cases. At the same time we have to, as observed by Cardozo, guard against the notion that because a principle has been formulated as the ratio decidendi of a given problem, it is therefore to be applied as a solvent of other problems, regardless of consequences, regardless of deflecting factors, inflexibly and automatically, in all its pristine generality (see Selected Writings, p. 31). As in life so in law things are not static."
24. In Lt. Col. Khajoor Singh v. The Union of India & Another, [1961] 2 SCR 828 the majority of this court emphasised that the court, should not depart from an interpretation given in an earlier judgment of the court unless there was a fair amount of unanimity that the earlier decision was manifestly wrong. In Keshav Mills Company v. Commissioner of Income Tax, [1965] 2 SCR 908,921 this court observed that a revision of its earlier decision would be justified if there were compelling and substantial reasons to do so. In Sajjan Singh v. State of Rajasthan, [1965] 1 SCR 933,947-948 the court laid down the test: 'Is it absolutely necessary and essential that the question already ::: Downloaded on - 09/06/2013 15:56:08 ::: 105 decided should be reopened?', and went on to observe: 'the answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good and the validity and compelling character of the considerations urged in support of the contrary view.' There can be no doubt, as was observed in Girdhari Lal Gupta v. D.H. Mill, [1971] 3 SCR 748 that where an earlier relevant statutory provision has not been brought to the notice of the court, the decision may be reviewed, or as in Pillani Investment Corporation Ltd. v. I.T.O. 'A' Ward, Calcutta & Anr., [1972] 2 SCR502, if a vital point was not considered. A more compendious examination of the problem was undertaken in Keshav Mills Company v.
Commissioner of Income Tax, (supra) where the Court pointed out:
"It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations:- What is the nature of the ::: Downloaded on - 09/06/2013 15:56:08 ::: 106 infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good?
Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of the Bench of five learned Judges of this Court."
52. It is not necessary to refer to all the cases on the point. The broad guidelines are easily deducible from what has gone before. The possibility ::: Downloaded on - 09/06/2013 15:56:09 ::: 107 of further defining these guiding principles can be envisaged with further juridical experience, and when common jurisprudential values linking different national systems of law may make a consensual pattern possible. But that lies in the future.
A reference can also usefully be made to the following observations and conclusions rendered in a Constitution Bench decision reported in A.I.R. 2005 SC 752. (Central Board of Dawoodi Bohra Community Vs. State of Maharashtra). After referring to Raghuvir Singh (supra), this is what the Latter Constitution Bench speaking through Hon'ble Chief Justice of India, R.C.Lahoti, J (as he then was) held:-
"12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.::: Downloaded on - 09/06/2013 15:56:09 ::: 108
(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a ::: Downloaded on - 09/06/2013 15:56:09 ::: 109 Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh & Ors. and Hansoli Devi & Ors.
(supra)."
53] The arguments canvassed by Mr.Dada, learned Senior Counsel appearing Amicus Curaie over-look this fundamental aspect. Therefore, it cannot be held that the Division Bench in Vinayak's case could not have entertained the objection or any argument to the contrary once the proviso in question was struck down in Nadgaud's case. Nadgauda's case was a decision of division bench which could have been over-ruled by a larger bench within the same court. Therefore, the finality attached to that judgement is subject to this power of larger bench to overrule the judgement. If the matter could have gone to a larger bench and Mr.Dada does not dispute that a matter can be referred to larger bench in case of ::: Downloaded on - 09/06/2013 15:56:09 ::: 110 dissent and difference of opinion by another division bench, then, a decision of this Court in Nadgauda's case does not prohibit the filing of a petition by Vinayak Hari Kulkarni and others challenging an action of the Registry refusing to register or accept a writ petition under Articles 226 and 227 with Marathi Annexures. If such a petition is not accepted and the registry's action to that effect could have been challenged on the Judicial side, then, the division bench was not prevented from noting the submissions on the correctness of the views expressed in Nadgauda's case.
Such submissions could have been raised before a coordinate bench.
Whether to accept them or not is left to the coordinate bench. The coordinate bench notes them, goes into them and opines that for reasons recorded by it Nadgauda's case requires reconsideration. In such circumstances, the declaration in Nadgauda's case wipes out or efaces the proviso from the rule temporarily and subject to the opinion of the larger bench. If the larger bench's opinion or advise is to the contrary, and it is applied as a precedent, then, the rule with its proviso remains in tact and despite its temporary eface or removal, it becomes operative and functional once again. In this context, reference can usefully be made to the decision of the Hon'ble Supreme Court reported in A.I.R 1990 SC 2027 (S.C.Verma Vs. Chancellor, Nagpur University), wherein dealing with somewhat ::: Downloaded on - 09/06/2013 15:56:09 ::: 111 identical situation, in paras 8 and 9, the Hon'ble Supreme Court observes thus:
"8. .... We are, therefore, in complete agreement with the view taken by the Full Bench that the employment notice dated July 27th, 1984 was bad in law since it had failed to notify the reservations of the posts subjectwise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subjectwise."
"9. The second contention need not detain us long. It is based primarily on the provisions of section 57(5) of the Act. The contention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment "was not in accordance with the law at that time in force" and since the law at that time in force, viz., on March 30th, 1985 when the appellants were appointed was the law as laid down in Bhakare case (1985 Lab IC 1481) (supra) which was decided on December 7th , 1984, the termination of the appellants is beyond the powers of the Chancellor. The argument ::: Downloaded on - 09/06/2013 15:56:09 ::: 112 can only be described as naive. It is unnecessary to point out that when the Court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since the Full Bench and now this Court have taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakare's case (supra) was erroneous, it will have to be held that the appointments made by the university on March 30 th, 1985 pursuant to the law laid down in Bhakare's case (supra) were not according to law. Hence, the termination of the services of the appellants were in compliance with the provisions of section 57(5) of the Act. ...."
54] In my view, such a situation is clearly distinct than the one considered in the majority opinion of respected Justice Marlapalle and Justice Ganoo. The situation arising out of a Statute or law made by Parliament which is ultra-vires Part III of the Constitution and contrary Article 13(2) thereof and declared unconstitutional by a court, stands on a different footing. However, even their also I am in agreement with ::: Downloaded on - 09/06/2013 15:56:09 ::: 113 Mr.Anturkar and Mr.Godbole appearing for the High Court that revival of an pre-constitutional and post-constitution law is permissible within the framework provided in our constitution. There also, the doctrine of Eclipse as outlined in several decisions of the Supreme Court brought to our notice postulates that the moment the basis of the declaration by a court of law is wiped out or removed, the Statute or law becomes constitutional. Even if the infirmity or defect is removed and the statute is re-enacted, in different form, the declaration no longer remains operative. (See AIR 1996 SC 1431-Indian Aluminium Company vs. State of Kerala & Ors. and AIR 1997 SC 1467-Meerut Development Authority vs. Satbir Sigh). If such is the position emerging from the principles laid down in Deepchand's case (1959 Supp.(2) S.C.R 8), then all the more it cannot be said that the reference in the present case should be returned without answering the core issue. It is not possible for me to agree with this conclusion for the aforementioned reasons. The Additional issue framed vide order dated 8th January 2010 would have to be answered by holding that the entire rule 2(i) is not struck down but it is only the proviso thereto and, therefore, there is a fundamental error in the wording of the issue. That apart, it is not the validity of rule 2(i) which is the subject matter of reference but the decision about its constitutional validity to a proviso thereto. That two distinct and different ::: Downloaded on - 09/06/2013 15:56:09 ::: 114 judgements and decisions on the Constitutionality of the same are rendered is unquestionable and cannot be disputed. Whether the decision striking down the proviso is correct or whether the reasoning in the differing judgement persuades us to take a different view or not is the subject matter of the reference. The difference of opinion is what is referred to a larger bench and irrespective of what is decided in Nadgauda's case that aspect can be considered by a larger bench. For these reasons, I hold that the reference is maintainable. It is also maintainable because the majority opinion answers the main question. Now, there is a doubt about the weight of its observations on merits. Even its recommendation made to the Full Court and Hon'ble Chief Justice may be academic once the proviso to Rule 2(i) is struck down as unconstitutional, null and void. The majority says nothing as to how it is to be revived.
55] The apprehension of the majority that large scale violation of the Doctrine of Binding Precedents can best be answered by inviting the attention of all concerned to the judgments of the Supreme Court in the field. In this context a reference can usefully be made to a decision of the Supreme Court reported in A.I.R. 1976 S.C. 1441 (The Punjab University Chandigarh Vs. Vijay Singh Lamba) wherein with regard to judgement of ::: Downloaded on - 09/06/2013 15:56:09 ::: 115 coordinate benches and rule of precedent, in para 11 this is what is observed:-
"11. We share the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring the stream of precedents which had consistently recognised the validity of decisions taken by 2 members of the Standing Committee. In Bharat Indu v. The Punjab University and another (1), Regulation 19 which was the precursor of and was identical with Regulation 32.1 came before the Punjab High Court. By a closely considered judgment, Dua J. who spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case. In Miss Manjinder Kaur v. The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected. It is quite true that judicial consistency is not the highest state of legal bliss.
Law must grow, it cannot afford to be static and therefore Judges ought to employ an intelligent technique in the use of precedents.
Precedents, as observed by Lord Macmillan, should be "stepping ::: Downloaded on - 09/06/2013 15:56:09 ::: 116 stones and not halting places".(2) But, Justice Cardozo's caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings. The language of the Regulations called for no review of established precedents. Nor indeed is there any fear of unfairness if only 2members decided the cases of students accused ofadopting unfair practices in the examinations. In such cases it is so much better that the law is certain."
56] In similar circumstances, in another decision reported in A.I.R. 1977 S.C. 1177, (Eknath Shankarrao Mukkawar Vs. State of Maharashtra) the Supreme Court observed that a Single Judge is bound by a judgement of another Single Judge of the High Court and there is enough room to record a separate view but in that event a request should be made to the Hon'ble Chief Justice for referring the matter to a larger bench. It is within those permissible limits that the latter Division Bench (Vinayak) recorded its difference of opinion and made the request to the Hon'ble Chief Justice.
As observed above, merely because the latter division bench expressed its view about the correctness of the earlier view striking down the proviso to rule 2(i), what it has essentially done is to differ with the judgement ::: Downloaded on - 09/06/2013 15:56:09 ::: 117 striking down the said proviso. Merely because a reference is made and the larger bench is seized of the matter, in my respectful view, it would not be open to doubt the correctness of the approach and the course adopted by the division bench in Vinayak's case. Once the order recording the dissent with the earlier division bench is passed and a reference to the larger bench has been made by the Hon'ble the Chief Justice by acceding to the request of the learned Judges deciding Vinayak's case, then it is not open for the full bench to go into the correctness or otherwise of the view taken in the latter division bench decision. That apart, the latter division bench has recorded its dissenting opinion and passed a judicial order based upon which the reference is made. There is no basis for the apprehension that merely because in Vinayak's case a different view is recorded that it will become a precedent in future cases. Without anything more, such an apprehension cannot be said to be well founded. There is no reason to presume that the course adopted by the division bench in Vinayak Hari's case will disturb the comity and in future the co-ordinate benches will start doubting the correctness of binding precedents. To my mind, it is not necessary to start with a presumption that what the latter division bench did in this case was an exercise undertaken to doubt the correctness of the earlier division bench. The latter division bench in this case had recorded ::: Downloaded on - 09/06/2013 15:56:09 ::: 118 reasons to support the different view. It has not rendered any final conclusion. Within the limits of judicial discipline, it has referred the matter, after recording its dissent. That was a course open to a division bench and which is not in doubt. In such circumstances, the conclusion drawn in the majority opinion, with greatest respect, cannot be the basis for returning the reference. Further, in Nadganda's case the Division Bench after striking down the proviso, the Hon'ble Judges made an interim arrangement which is in tune with the proviso. Therefore, authoritative pronouncement is all the more necessary.
57] With further great respect, it is difficult for me to agree with the conclusion drawn by the majority opinion. The full bench constituted in this case is not deciding the original writ petition but answering the questions framed by it. In fact, the full bench decision of our Court in Sikshan Sanstha Mandal Akola Vs. L.B.Joshi & Ors reported in 2004 (2) Maharashtra Law Journal 341) relied upon by the petitioners and the High Court supports my aforesaid conclusion. The full bench advises and its jurisdiction is to make a recommendation. That recommendation of the full bench is then placed before the appropriate division bench after the main matter is placed before it. It is in accordance with the opinion and ::: Downloaded on - 09/06/2013 15:56:09 ::: 119 recommendation of the full bench that the division bench answers the issue raised in the petition and decides it. True it is that the full bench by itself will not have original jurisdiction but what the conclusion drawn by the majority overlooks is that in the fact situation arising in this case, the larger bench is not prevented from making a recommendation or giving its opinion on the issue as to whether the proviso to Rule 2(i) is constitutional or not. Precisely, that is the function that it is supposed to perform. After it renders its opinion the main petition will be placed before an appropriate division bench. If that division bench finds that despite opinion of the full bench that proviso to Rule 2(i) is constitutionally valid, it is not possible for it to grant any relief to the parties before it, it may record such a conclusion or may make an order in consonance with the opinion of the Full Bench. If it so records, then, it would be open for parties to go and challenge that judgment before the higher forum. That is something which will not enable us to hold at this stage that the constitutionality of the rule can only be removed by the appellate forum. The full bench will only render an opinion as to which of the conclusions are sound in law and reflect the correct legal position. Thereafter, it is open for the full bench to send back the main petition to the Division bench assigned Civil Writ Petition work on the Appellate side or request the Hon'ble the Chief Justice that in the light of ::: Downloaded on - 09/06/2013 15:56:09 ::: 120 the opinion and recommendation made some other appropriate course may be adopted. Therefore, the apprehension that this full bench is acting as an appellate forum is not accurate and Mr.Dada's submissions in that regard do not appear to be correct in law. The Supreme Court decisions relied upon by Mr.Dada are clearly distinguishable.
58] The reliance thereon is not apposite in my humble view. Once the matter is viewed from the angle of Judicial discipline and certainty of law, rule of precedents, then, the larger issue of Doctrine of Eclipse and Temporary Removal of the proviso from the Rule Book is really academic.
The doctrine of eclipse that is pressed into service would have an application in the events that are set out in the judgement of the Supreme Court. Before us, the issue about the law covered by Article 13(1) and one falling under Article 13(2) of the Constitution of India does not arise. The observations which have been quoted (para 22) from the Supreme Court decision in M.C.Jaini reported in A.I.R 1963 S.C 1019 are in the context of a law made in contravention of Article 13(2) of the Constitution. Article 13(2) of the Constitution is very clear. The Legislature is not empowered to make a law which would contravene the mandate of part III of the Constitution of India. Before us, there is no plea raised on contravention of ::: Downloaded on - 09/06/2013 15:56:09 ::: 121 part III of the Constitution of India and or that is not even the conclusion in Nadgauda's case. The conclusion is with regard to violation of Article 348(1)(a) of the Constitution. Therefore, the limited issue is whether the conclusion in Satish Nadgauda's case holding that the proviso to Rule 2(i) is unconstitutional, as it is contrary to Article 348(1), is correct in law or not. Therefore, to my mind, it is not necessary to go into the issue as to what would be the effect of any law made in contravention of part III of the Constitution. That would be a still born law and a dead letter right from its inception. This does not require any discussion or debate.
59] In my opinion, the conclusion in para 23 of the Judgement of the majority is, with respect, not accurate. That a full bench is not an appellate forum is also not in dispute. There is no question of the rule ceasing to exist in this case. As I have already held above, the rule has not been held to be unconstitutional. It is only the proviso to rule 2(i) which is pronounced to be unconstitutional. Therefore, the question of Rule 2(i) ceasing to exist does not arise. Similarly, the Full Bench is only called upon to render an opinion as to whether the conclusion in Nadgauda's case is correct or that the proviso will not be hit and does not contravene Article 348(1)(a) of the Constitution of India. This is the only ::: Downloaded on - 09/06/2013 15:56:09 ::: 122 issue and, therefore, the reference has been made to a larger bench to resolve the difference of opinion between two coordinate benches, on the interpretation, meaning, ambit and scope of the rule. The Full Bench would be resolving the difference of opinion in its advisory capacity. Therefore, it is not as if the subject matter of reference has ceased to exist. Once it is understood that the Full Bench is acting in an advisory capacity and sitting to resolve the difference of opinion, then, there is no question of the reference being returned unanswered on the ground that the rule has ceased to exist after the pronouncement in Nadgauda's case. The Rule cannot be said to be still born or dead because the rule has not been struck down. It is only the proviso to sub rule (i) of Rule 2 which has been held to be unconstitutional. It is a judgement of Division Bench which declares it to be so and which judgement is differed and dissented by another bench.
Therefore, when the conflict is being resolved, there is no question of the full bench acting as a court of appeal. Hence, the reference cannot be said to be not maintainable.
60] For the very reasons I would not be able to agree with the conclusion in para 24 of the majority opinion. Once, there is a doubt expressed about the correctness of the view in Nadgauda's case, then, the Full Bench will ::: Downloaded on - 09/06/2013 15:56:09 ::: 123 have to perform its duty in law. There is no question of Full Bench exercising any original powers in such an event. The Full Bench can resolve the conflict even when the reference order does not frame any question for consideration of the Full Bench. The Full Bench is constituted only to resolve the conflict and beyond that it will not exercise the jurisdiction as apprehended by the Division Bench. Further the apprehension voiced in general that flood gates would be opened and decisions of Division Benches would not be allowed to reach finality is also not, with respect, sound in law. If the reasoning is accepted, then, every time, the correctness of a decision of coordinate bench is doubted, there will be no choice but to follow it. In that event a coordinate bench would find itself bound even by an erroneous view of law. There will be no scope for difference of opinion or dissent. In that event, the erroneous view would continue to hold the field, unless set aside in appeal by higher court. Some times, the judgement of a coordinate bench recording an erroneous conclusion in law may not be impugned or challenged by the parties to the litigation. In such an event, that judgement would continue to bind the coordinate benches in future. Precisely for this reason, the Hon'ble Supreme Court observed that in the Judicial system we are not slaves of precedents and freedom to differ is inherent and implicit in the ::: Downloaded on - 09/06/2013 15:56:09 ::: 124 Rule of precedent. This is a long standing practice evolved. Therefore, entertaining a reference of present nature would encourage judicial indiscipline is something with which it is difficult to concur. For all these reasons and when the division bench judgement in Nadgauda's case works hardships to the litigant and obstructs access to justice, then, all the more the reference deserves to be answered on merits.
61] Now, I turn to the main issue or question posed for our answer.
Article 348 of the Constitution of India is clear. The relevant part of the same reads as under:-
"348(1) Notwithstanding anything in the foregoing provisions of this part, until Parliament by law otherwise provides:-
(a) all proceedings in the Supreme Court and in every High Court,
(b) ...........
shall be in the English Language."
As far as the position of the Courts is concerned, Mahatma Gandhi, the father of our Nation, observed that "Justice in British Court is an expensive ::: Downloaded on - 09/06/2013 15:56:09 ::: 125 luxury. It is often the longest purse that wins." ... "Justice should become cheap and expeditious. Today, it is the luxury of the rich and joy of the gambler."
Ultimately, if a litigant has to have access to justice, then, minimum hurdles and obstructions be placed in his way. The litigant should not be denied justice because he annexes a Marathi document to his application. If the subordinate Court/ Tribunal's order is in Marathi a litigant is not prohibited from challenging it in a superior Court. The language of Courts subordinate to High Court is determined by the State. By a notification dated 21st July 1998, the State has decided that it should be Marathi. Further this Court by a circular dated 9th December 2006 has directed that 50% of the judgments of the subordinate Courts have to be in Marathi. Thus these are policy decisions taken in exercise of the statutory powers vested in competent authorities. These decisions are not challenged by anybody till date. The litigant, therefore, cannot be faulted if he annexes Marathi documents. He has no control in such matters. Further Marathi is the official language for official purposes of the State. (See Sections 3 and 4 of the Maharashtra Official Languages Act, 1964) from 26th January 1965. The challenge to the proviso will have to be decided in this backdrop. With respect, the ::: Downloaded on - 09/06/2013 15:56:09 ::: 126 majority is right in their conclusion recorded in paras 15 and 16 but, the fear is that its observations can be termed as obiter and not binding. To obviate that, it is necessary to endorse them. Copies of the impugned judgement/ order of the authorities/ subordinate courts/ tribunals will form part of the proceedings, yet, the annexures to a writ petition stands on a different footing. The word "pleadings" would be included in the term "proceedings" appearing in Article 348(1)(a) of the Constitution of India.
However, it is nobody's case that pleading which means in this case the memo of the petition, is not in English language. That is admittedly in English language in the present case. One of the Annexure thereto is an order passed in a language other than English or is a document in Marathi language. All that the proviso postulates is that a translation thereof in English language shall be provided as and when demanded by the Court.
The proviso enables presentation and acceptance of a writ petition under Articles 226 and 227 with Annexures in Marathi language but with the undertaking as contemplated therein. These are procedural provisions enabling litigants to approach the High Court in its jurisdiction under Article 226 of the Constitution of India. It is well settled that this jurisdiction is plenary in nature. It is part and parcel of basic structure of the Constitution of India. It is a guarantee to seek redressal of a wrong ::: Downloaded on - 09/06/2013 15:56:09 ::: 127 done to a party by approaching the highest court in the State. That is conferred with constitutional jurisdiction. The jurisdiction, power and authority that High Court exercises under Article 226 is of the nature emphasised by the Hon'ble Supreme Court in L.Chandrakumar's case (AIR 1997 SC 1125) and too well settled to be reiterated. Judicial review is a constitutional guarantee and is not to be lightly tinkered with. In paras 78 and 79 of this decision, the Constitution Bench held thus:-
"78. The legitimacy of the power of Courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India being alive to such criticism, has, while conferring such power upon the higher judiciary incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. (#) These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme ::: Downloaded on - 09/06/2013 15:56:09 ::: 128 Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior Courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior Courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions.
The Judges of the superior Courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate Courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, ::: Downloaded on - 09/06/2013 15:56:09 ::: 129 Judge of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided."
62] It is bearing this in mind that the Rules under Chapter XVII and the ::: Downloaded on - 09/06/2013 15:56:09 ::: 130 proviso has been enacted. The proviso is inserted by Notification No.P. 3603/86 dated 6th August 1986.
63] The attention of the Hon'ble Division Bench in Nadgauda's case was not invited to the Bombay High Court (A.S) Rules, 1960 in their entirety.
In the said rules, the Rule Makers, while dividing the Rules into parts, have inserted Part II - "PROCEDURE AND PRACTICE". Therein, Chapter III is entitled as "Affidavits", whereas Chapter IV is entitled as "Presentation of Appeals and Applications". Thereunder, Rules 3 and 5 appear, which read as under:-
"3. Language of proceedings presented by party in person -
The memoranda of appeals, cross-objections, applications or petitions presented by the party personally may be either in Marathi or Hindi or in English:-
Provided that the party or the Advocate shall be required to put at his expense official translations of the same in English whenever a specific order in that respect is passed."
"5. Language and other requirements of proceedings ::: Downloaded on - 09/06/2013 15:56:09 ::: 131 presented by Advocates -- The memorandum of appeals, cross-
objections, applications or petitions presented by Advocates shall be in English, and shall be signed by the Advocate concerned or by any other Advocate on his behalf provided that the Advocate concerned ratifies the same by affixing to it his signature within one week of the date of its being filed in Court."
64] A bare perusal of Rule 3 would show that "Language of Proceedings presented by party in person" is the heading of Rule 3. It clearly means that when it comes to a party in person, the memo of appeal, cross objections, application or petition can be presented by him, either in Marathi or in Hindi or in English. Proviso thereto states that party or the Advocate shall be required to put at his expenses official translations in English whenever specific order in that respect is passed.
65] Rule 5 states that language and other requirements of proceedings presented by Advocates shall be in English. None has questioned these rules or the proviso below Rule 3 in Chapter IV of Part II of the Bombay High Court A.S. Rules, till date. Therefore, a party in person can present the aforementioned proceedings in a language other than English and there ::: Downloaded on - 09/06/2013 15:56:09 ::: 132 is no prohibition for such presentation. However, when it comes to Advocates, Rule 5 states that their pleadings shall be in English.
Therefore, a proviso of identical nature as appearing below Rule 2(i) of Chapter XVII, has been in the Rule Book and that is not struck down as unconstitutional and violative of Article 348(1)(a) of the Constitution of India. With greatest respect, there cannot be any differentiation or discrimination when it comes to presentation of an application under other laws and under Article 226 and 227 of the Constitution of India. A party presenting appeals and applications under Chapter IV cannot be placed in an advantageous position or rather a party/ Advocate presenting a writ application should not be placed in an disadvantageous position, when it comes to the applications dealt with by Chapter XVII. There cannot be, with greatest respect, a different treatment to litigants at the stage of presentation and filing of applications.
66] To my mind, Chapter IV and Chapter XVII and particularly Rules 3 and 5 of Chapter IV and Rule 2 of Chapter XVII ought to be read harmoneously and together so that both procedural provisions can co-exist.
It may be argued that the title of Chapter IV, viz., " PRESENTATION OF APPEALS AND APPLICATIONS", would cover all proceedings presented ::: Downloaded on - 09/06/2013 15:56:09 ::: 133 by a party in person, including an application under Article 226 and 227 of the Constitution of India. In any event the proviso below Rules 2(i) of Chapter XVII and below Rule 3 of Chapter IV (Part II) should receive the same construction which will not prevent or prejudice a litigant or a party from filing and presenting applications. To my mind, the petitions under Articles 226 and 227 may be held as distinct and independent proceedings.
They cannot be equated with civil revision applications, cross objections etc., yet, both can have Marathi accompaniments. In fact, a party in person can draft and present the memorandum of appeals and applications in any language other than English and particularly in Marathi or Hindi. The accompaniments to memorandum of appeal and to appeal from orders, so also civil revision applications, contemplate providing of typed copies of English translations of documents other than in English. The presentation of these proceedings together with such accompaniments is not at all prohibited. In fact, it is permissible and with the aid of the proviso, the Registry can accept them. In all such proceedings, if the court calls upon party or the Advocate to file English translations,then, he is obliged to comply with such a direction. Since, we are also dealing with presentation and acceptance of Applications, this aspect has been high lighted by me.
That would show that in the same rules provisions identical to the subject ::: Downloaded on - 09/06/2013 15:56:09 ::: 134 proviso have been inserted and not questioned till date. One fails to understand as to what could be the reason for striking down only the proviso below Rule 2(i) of Chapter XVII of the Appellate Side Rules.
67] In this context Rule 19 (iii-A) falling under Chapter IV is worth noting. It reads thus:-
"19(iii-A) English Translation of accompaniment ---
Where, however, any of the accompaniments mentioned in sub-rule
(i) and (ii) are not in English, typed copies of translations in English of such accompaniments should be annexed:
Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding."
68] None can dispute that the wording of this proviso is identical to the subject proviso (below rule 2(i) of chapter XVII). If one can stand and does not fall foul of the constitutional requirement and mandate of Article ::: Downloaded on - 09/06/2013 15:56:10 ::: 135 348(1) (a), then, all the more there is no reason to strike down the other.
69] It may be that in writ petitions and particularly under Article 226 which are original proceedings, the documents such as Government orders, notifications, circulars etc. are necessarily in Marathi and may present some difficulty for the Court. However, this is a difficulty which the concerned Judges would face and for resolution of which they can always issue directions and orders to supply translations of Marathi documents, including orders of subordinate court, if they are in Marathi language. That is an over-riding power of the Court. However, the accompaniments in Marathi to writ petitions under Articles 226 and 227 of the Constitution should not prevent a litigant or party from presenting them. In fact the proviso enables such presentation and such accompaniments could be translated at a later stage, if directed to be supplied by the court by passing an order in that behalf. However, filing of writ applications with documents in Marathi accompanying the same, is clearly permissible. The accompaniments can be filed without translations being supplied at the threshold or at the stage of presentation/ filing. In such circumstances and when one goes by the ordinary meaning of the term "Accompaniments", then, the proviso does not run counter to the constitutional requirements.
::: Downloaded on - 09/06/2013 15:56:10 ::: 136On the other hand, a contradictory and confusing position may emerge, if applications and proceedings other than writ petitions can be filed with Marathi accompaniments and without English translations thereof, but writ petitions cannot be so presented and accepted by the Registry. That would not only inconvenience and cause hardship to the litigating public but would result in a discrimination which may be hostile. The classification between the litigant and parties would, then, become vulnerable and may result in the Rules being challenged as ultra vires Article 14 of the Constitution. A construction which makes the procedural rules workeable and not expose them to such challenge should be placed so that the litigants can approach the Highest Court in the State, without any unnecessary obstacles. Ultimately, a Court of law is for the litigants and its procedure ought to be litigant friendly, less cumbersome and smooth. It should be so atleast in the High Court. If the set of such Rules enable presentation of all proceedings in varied Jurisdiction (Original, Appellate, Constitutional etc.) of the High Court at its Principal Seat and Benches, then, it is all the more better for the common man. It fulfills the Goal of affordable Justice.
70] The pleading, argument and judgement in a writ petition is in English language so also the order and decree of the Court. For that to be rendered ::: Downloaded on - 09/06/2013 15:56:10 ::: 137 the Court must have all assistance and should not feel handicapped because the learned Presiding Judge is not familiar with Marathi language. To remove that handicap and assist the court so as to enable it to effectively and properly perform its judicial function that the proviso is inserted.
Thereby, a balance is struck inasmuch as a litigant is not prevented from approaching the court invoking its jurisdiction under Article 226 of the Constitution of India and at the same time disability or the difficulty which the Court may face in construing and interpreting the contents of documents/ order in Marathi language is removed. Once these difficulties faced by the learned Presiding Judge are taken care of and he is made available a translation in English of the Marathi documents or the impugned order during the course of the proceedings, then, the proviso stands complied with.
71] I fail to understand as to how such a proviso can be said to be unconstitutional and violative of Article 348(1)(a) of the Constitution of India. If the Article is read as a whole and together with other articles, it is clear that the framers of the constitution do not prohibit use of the language of the State in court proceedings. That language could be made Language of the High Court also is provided but compliance must be done with the ::: Downloaded on - 09/06/2013 15:56:10 ::: 138 mandate of the Article in question. In any event, the requirement that the proceedings of the High Court shall be in English language is in no way violated or not complied with, merely because the Annexure to the petition is in Marathi language. The petition when presented can have such an annexure and the translation can be provided as and when demanded clearly goes to show that the proviso to rule 2(i) is in consonance with the Constitutional mandate and not violative of it. Merely by annexing a document in language other than English or the language of the State, the constitutional mandate is in no way diluted much less violated or tinkered with in any manner. Even if the broadest and widest meaning of the term "proceedings" is taken, still, there is no infringement of the Constitutional mandate. Rule Makers have not acted contrary to the constitutional requirement of conducting the proceedings in English language by inserting the proviso. It is pertinent to note that such a proviso is to be found else where in Bombay High Court (AS) Rules. One fails to understand as to how a proviso to rule 2(i) in Chapter XVII of AS Rules contravenes the constitutional mandate set out above. It is pertinent to note that the notification dated 6th August 1986 is not struck down. That such a notification could be issued and the High Court is competent to do so, is not in issue. That the notification and the proviso is not violative of Articles ::: Downloaded on - 09/06/2013 15:56:10 ::: 139 13, 14 and 21 of the Constitution of India is undisputed. Therefore, Nadgauda's case cannot be said to be laying down the correct law.
72] In Nadgauda's case with respect, the relevant provisions of the Constitution have not been adverted to. The Division Bench also did not notice the presence of identical provisions in the same Rules. Further, the attention of the Division Bench was not invited to the fact that Article 348 falls under Chapter II of Part XVII of the Constitution of India which is entitled as "official language". Chapter I of the same deals with language of the Union and in it sub-article 343 appears which states that the official language of the Union shall be Hindi in Devnagari script. Notwithstanding anything contained in Article 343(1) for a period of fifteen years from the commencement of this Constitution, English language shall be continued to be used for all official purposes of the Union, for which it was being used immediately before such commencement. The proviso to Article 343(2) states that the President may during the said period of 15 years by an order authorise use of Hindi language in addition to English language.
Thereafter, Articles 343 and 344 appear in the same chapter. In a decision (Union of India Vs. Murasoli Maran), reported in A.I.R. 1977 S.C. 225, the Supreme Court held that these articles deal with the process of transition to ::: Downloaded on - 09/06/2013 15:56:10 ::: 140 Hindi for all official purposes of Union. The ultimate aim is provided in Article 351 viz., spread and development of Hindi language and enrichment of composite culture of India. [Article 344(6)]. (See paras 30, 31 to 36 of this decision).
73] Then comes chapter II which deals with "Regional language".
Article 345 states that subject to the provisions of Article 346 and 347, the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as a language to be used for all or any of the official purposes of that State. The proviso to Article 345 states that until the Legislature of the State otherwise provides by law, English language shall be continued to be used for those official purposes within the state for which it was being used immediately before the commencement of the Constitution. Article 346 and 347 speak of official language for communication between one State and another or between State and the Union. In this Article also there is no compulsion and Hindi language could become the official language for communication between States.
74] Chapter III which contains Article 348 sub-article 1, sub-clause (a) and (b), at the same time contains sub-article 2 which enables the ::: Downloaded on - 09/06/2013 15:56:10 ::: 141 Government of the State, with previous consent of the President, to authorise use of Hindi language or any other language used for any official purpose of the State in proceedings in the High Court having its principal seat in that State, provided that nothing in Article 348(2) shall apply to any judgement, decree or order passed or made by such high Court. Therefore, it is not as if there is compulsion that the proceedings ought to be in English language and no departure can be made therefrom in future. A departure can be made insofar as proceedings in High Courts and use of English language can be discontinued after compliance with Article 348(2). If such is the wording of the Article itself, then, one fails to understand as to how proviso below Rule 2(i) is unconstitutional and violative of Article 348(1)
(a) of the Constitution.
75] Even in the decision of the Supreme Court to which reference is made in Nadgauda's case all that has been held is that pleadings or arguments in the Supreme Court in Hindi or any other language is not permissible. (See A.I.R. 1977 S.C. 2608 - Madhu Limaye Vs. Ved Murthi).
Therein, the intervenor insisted on arguing in Hindi by stating that he does not know English. The Court gave several alternatives to the intervenor but he did not avail of the suggestions and alternatives given to him. It is in ::: Downloaded on - 09/06/2013 15:56:10 ::: 142 such circumstances that the intervention was cancelled. With deepest respect and begging to differ, how this judgement lays down that there cannot be any presentation or if presented non acceptance by the High Court of a writ petition under Article 226 of the Constitution of India, which is in English language but having a Marathi annexure with it, is not clear to me at all. The majority opinion rightly does not, therefore, uphold the correctness of the view expressed in Nadgauda's case.
76] In A.I.R. 1977 Allahabad 164 (Prabhankhak Samiti and Anr. Vs. Zila Vidyalaya Nirikshak Allahabad and Ors.), the Allahabad High Court held that once Government issues notification under Article 348(2), an individual acquires legal right to use the language prescribed by the notification for writing petition under Article 226 of the Constitution of India. In such circumstances, I am of the opinion that judgement in Nadgauda's case does not lay down the correct position.
77] Therefore, I proceed to answer the question No.1 by holding that the said judgement insofar as it strikes down the proviso is required to be over-
ruled. I am supported in this conclusion by the very process of reasoning by which the Division Bench proceeded in Nadgauda's case. Chapter XVII ::: Downloaded on - 09/06/2013 15:56:10 ::: 143 of the A.S.Rules and particularly Rule 2(i) which is entitled "Accompaniments".
78] Now, merely striking down the proviso is not enough because the substantive rule permits furnishing of typed copies of translation in English language of all documents which are not in English language.
Accompaniments to the petition need not necessarily be in English language and documents other than in English language can be filed, provided their translations are furnished. The decision in Vinayak's case takes note of the fact that Nadgauda's case does not declare Rule 2(i) of Chapter XVII of A.S. Rules to be ultra vires Article 348(1) of the Constitution but only strikes down the proviso by declaring it as ultra vires this Article. Once the proviso alone is declared to be ultra vires and not the substantive Rule, then, all the more the conclusion reached cannot be sustained.
79] In the result, the following order:-
(a) The present reference is held to be maintainable;
(b) It is held that proviso to Rule 2(i) of the Bombay High Court ::: Downloaded on - 09/06/2013 15:56:10 ::: 144 Appellate Side Rules, 1960, is not unconstitutional as it does not violate Article 348(1)(a) of the Constitution of India.
(c) The reference is answered accordingly.
(S.C.Dharmadhikari, J).
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