Verdicts of the courts can roughly be categorised into three classes. The first, where the court knows that law cannot fully support what it is doing, yet it felt compelled to give the judgement it did in the interest of the general public.
The Ram Janmabhoomi case decided by the high court in Lucknow on September 30, 2010, belongs to this category. The court dismissed the suit filed by Sunni Central Wakf Board claiming title to the land. Similarly, the claim of Nirmohi Akhara was also rejected. Only the claim of the deity Ram Lalla was upheld to the extent that the place immediately below the central dome of the demolished mosque was the birthplace of Lord Rama according to the belief of the Hindus.
However, in the end, two of the three-judge bench commanded that the land in question be divided in three equal parts for each of the parties — a relief that was not sought by any of the litigants.
It is a fundamental principle of law that a party whose suit has been dismissed can get no benefit; the law is that the decree or the enforceable part of the verdict shall be in accordance with the reasoning that preceded. The court’s decree to divide the property between the three was legally wrong and the court surely knew that. However, perhaps taking into account the possibility of large-scale repercussions in the country, this decree was passed. The world watched with disbelief, but the verdict caused no unrest. The desired result of maintaining peace in the country was wholly achieved.
Everyone knew that the matter would be taken to the Supreme Court in appeal where correction, if needed, will be done. Judicial history of the world is replete with instances of statesmanship devoted to the cause of larger public good.
The second category of court proceedings is where the procedure adopted by the court may be legally correct but lead to serious harm to public peace and order. A classic example of this is the recent case relating to the shooting of a black boy by a white policeman in Ferguson, Missouri, the US. As is now known, in August this year, Darren Wilson, a white policeman, fired 12 shots at Michael Brown, an unarmed black youth of 18 years of age, killing him on the spot. The prosecuting district attorney acting under the criminal law of the state opted for an elaborate grand jury proceeding to decide whether the white police officer should be tried for murder. For about two months a large number of witnesses were examined and a jury consisting of nine white and three black jurors came out with the verdict that there was no ground to prosecute the police officer.
The result was a countrywide public outrage leading to destruction of property and peace. If only the obvious course of investigation and trial had been adopted, the situation would have been different even if Wilson were to be ultimately acquitted. African Americans in the US have for generations grown up with the belief that the criminal justice system in that country continues to be colour blind — it cannot recognise white.
The third category is where, possessed by righteous indignation, a court or tribunal gets an intense urge to do good for the public at large and passes orders that are not within its powers. The example of this last category is the pronouncement of the National Green Tribunal on November 26, imposing several bans including on motor vehicles older than 15 years. The intention was wholesome but the effect — I am afraid — may be nil.
The National Green Tribunal is a statutory body created by an act of Parliament in 2010. Such tribunals are constituted for specified purposes and their jurisdiction is circumscribed by the terms of the creating statutes. The law that created the Green Tribunal is clear that its function is to settle disputes arising from civil cases where a substantial question relating to environment is involved and such question arises out of the implementation of the specified enactments, one of which is Air (Prevention and Control of Pollution) Act, 1981.
A simple example of such a dispute is where the complaint is that the authorities concerned permitted setting up of a project in violation of the provisions of one or the other laws specified, like the Air Act. The tribunal is to examine the complaint and pass its orders. Its power includes granting of compensation to the aggrieved party and restoration of his property in appropriate cases. In the case under reference, the court passed 14 ban orders, apparently triggered by a newspaper article.
Undoubtedly, all these are for public good, but the fact remains that there is no way of implementing any one of these directions because they are addressed to no authority in particular and not obeying these directions may lead to no consequence. It is an accepted proposition of law that any order passed without jurisdiction or legal authority is a nullity.
Further, the tribunal is duty bound to decide cases after giving opportunity to the affected parties to present their versions — a basic principle of natural justice. The estimated lakhs of old car owners were not heard and no one can say that the condition of a car is determined wholly by its age. Already there are laws in force which require cars to be pollution free. If they are not enforced, Green Tribunal’s wishes will fly no further.
Yes, the Supreme Court a decade or more ago entertained PILs complaining against vehicular pollution. Experts were appointed to assist the court and the orders were directed to one or the other authority that was answerable. The court had to cajole the authorities into action, notwithstanding the position that the apex court could punish defaulters for committing contempt of court. Being the last court, there would be no relief in case the court orders imprisonment of a defaulter — remember Subrato Roy of Sahara?
The Green Tribunal has no power to issue writs nor to punish anyone for its contempt and rightly so. Its chairman is required to be a judge of the Supreme Court or a Chief Justice of a high court, serving or retired, but he does not carry with him either the powers or the title “Hon’ble
Mr Justice” that was available while being a judge.
The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com
