CAN THE BASIC FEATURES OF COURTS OF RECORD BE LEGISLATED UPON?

CAN QUO
WARRANTO BE ISSUED VIS-A-VIS ARTICLES 124 AND 217?
Author(s): V.G. Ramachandran
Source: Journal of the Indian Law Institute , April-June 1978, Vol. 20, No. 2 (April-
June 1978), pp. 273-279
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43950529

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 CAN THE BASIC FEATURES OF COURTS OF RECORD BE
LEGISLATED UPON? CAN QUO WARRANTO BE ISSUED
VIS-A-VIS ARTICLES 124 AND 217?

IT IS germane to find an answer to the aforesaid two questions posed in

the caption, in view of the predicament the judiciary in India is now plac
in these regards. The paramount issue is can powers of the courts of reco
be curtailed or abrogated by a parliamentary legislation ? The othe
question is how to insist on the observance of the provisions in articles 1
and 217 of the Constitution which enjoin on the President of India a dut
to consult the Supreme Court and the High Courts judges vis-a-vis appoin
ment of the judges and Chief Justices of the Supreme Court and the Hig
Courts. We may take the first question first as the matter is rather urgent.
If what we suggest below is taken i.e., suo motu action on the part of th
judges, citizens will not be in a predicament as to their present rights. Th
Forty-second Amendment is still in force, as Parliament has yet to pass t
Constitution (Forty-fifth Amendment) Bill, 1978 (seeking to repeal mo
of the provisions of the Forty-second Amendment) the courts of recor
cannot be in suspended animation vis-a-vis the majority opinion rul
Many judgments with less than two-third majority opinion in the inte
regnum will be otiose unless the suo motu action which we have envisage
below is taken by the highest court of the land.
It is acclaimed even after the passing of the Constitution (Forty-secon
Amendment) Act that the law of the land is that what has been laid dow
by the Supreme Court in the Kesavananda Bharati case } That decision lim
the amending power of Parliament to the extent of not infringing on th
basic features of the Constitution. It is crystal clear that in the Forty-
second Amendment this doctrine of basic features is negatived, a
Parliament claimed complete supremacy even over the authority of the
Supreme Court. It is claimed that there is no limitation at all to th
amending power of Parliament.
To push this doctrine to the logically extreme limit, Parliament can,
under the Forty-second Amendment Act, change the entire Constitution
even abolish the judiciary, or deprive it of all its essential powers as th
courts of record. In that view we have to examine articles 144-A and
228-A which fix the quorum for a binding majority decision of the
Supreme Court and the High Courts. Is that permissible ?

Articles 144-A and 228-A

It may be remembered that articles 129 and 215 denote the Supreme

1. 1973(4) S.C.C. 225.

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274 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 20 : 2

Court and the High Courts as the courts of record having all the p
such a court including the power to punish for the contempt of i
follows that there can be no legislation abolishing the power to p
for contempt or any other inherent features of such courts of r
following the English practice. One such feature is the binding n
the judicial decisions of the courts of record. These courts hav
time immemorial, acted on the principle that the majority opinion
binding even if it be a majority of only one judge.
The rules as to precedents as stated by C.K. Allen are that each
is bound by the decision of the courts above.2 A judgment is auth
only as to its ratio decidendi . A precedent is not abrogated by the
time.
The courts of record occupy a pre-eminent place because of their
tant bearing on the question of the superior courts. Their decisio
binding on the lower courts.

Blackstone says :

A court of record is that, where the acts and judicial proceedin

are enrolled in parchment for a perpetual memorial and testimo
which rolls are called the records of the court, and are of such
high and super-eminent authority, that their truth is not
be called in question. For it is a settled rule and maxim tha
nothing shall be averred against a record, nor shall any plea
even proof, be admitted to the contrary. And if the existence o
record be denied, it shall be tried by nothing but itself: that is, upo
bare inspection whether there be any such record or no; else th
would be no end of disputes. But, if there appear any mist
of the clerk in making up such record, the court will direct him
amend it. All courts of record are the king's courts, in righ
his crown and royal dignity, and therefore no other court hat
authority to fine or imprison....3

William Holds worth says: "It is the infallibility of its formal

which is the earliest mark of a court of record."4 Thus, it will be
that the technical term "court of record" was indicative of a s
status rather than of a particular procedure. The earliest charact
was, therefore, the indisputability of its records. Gradually, oth
butes were also associated with a court of record, and Coke on th
of questionable premises laid down the rule that it was only a cou
record which could fine and imprison. In Beechefs case5 it was he

2. C. K. Allen, Law in the Making 345.

3. Blackstone, III Commentaries on the Laws of England 24 (1844).
4 Holdsworth, V History of English Law 158 (1966).
5. (1609) 8 Co. Rep. 58; 77 E.R. 559.

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1978] LEGISLATION OF BASIC FEATURES OF COURTS OF RECORD 275

a court which is not of record could not impose a fine nor commit to
prison.
This attribute of contempt of power vested in the courts of record is
an inherent feature thereof. The same finds transplanted in the provi-
sions of the Constitution (articles 129 and 215). The other attribute of
these courts is the duty to keep permanent records so as to be a record of
the authoritative law of the land. Such authority is binding as precedent
on the lower courts. Throughout the historical period in the 19th century
and 20th century in the United Kingdom a precedent is binding even if it
be a majority view of one judge.
We may now refer to Corpus Juris and Halsburys as to the significance
of the courts of record.

Court of record

In Corpus Juris the court of record is defined. It states :

A Court of Record has been defined as a court where the acts
and judicial proceedings are enrolled in parchment for a perpetual
memorial and testimony and which has power to fine and imprison
for contempt of its authority ; A court that is bound to keep a
record of its proceedings and that may fine or imprison ; A court
whose proceedings are enrolled for a perpetual memorial and
testimony which rolls are called the Records of the Court, and are
of such high and super-eminent authority that their truth is not to
be called in question; A judical organised tribunal having attributes
and exercising functions independently of the persons of the
Magistrates designated generally to hold it and proceeding according
to the course of the common law, and a court having a seal. Courts
may be designated by statute as Courts of Record. Courts not of
record are those of inferior dignity which have no power to
fine or imprison and in which proceedings are not enrolled or
recorded; and all courts which do not come within the definition of a
Court of Record are courts not of record.6

In Halsburýs Laws of England it is further stated:

Courts not of Record are those civil courts in which proceedings are
not according to the course of common law (except such as have
been made Courts of Record by statute). All Courts of Record,
with the exception of the Courts of the Counties Palatine are Courts
of the King, even though a subject or corporation has the benefit
of the court, as in the case of borough and city Courts of Record.
The proceedings of a Court of Record preserved in its archives are

6. XV Corpus Jąri§ Secundum 720-21, quoted by Y?Ģ: Ramachandrąn, Coņtempt of

Çonrt 50 (4tb ed.)

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276 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 20 : 2

called records, and are conclusive evidence of that which is re

ed therein.7
In England the King's Bench, Courts of Assize Oyer and T
Court of Exchequer, the Privy Council, the Court of Chanc
were superior courts of record.
In India, the Chartered High Courts from their inception were by
patents designated as the courts of record. When Article 108 (n
129) was moved for acceptance, B. R. Ambedkar stated:
A Court of Record is a court, the records of which are admi
to be of evidentiary value and they are not to be questioned
they are produced before any court. That is the meaning
word 'Courts of Record'. Then the second part of Article
(now Article 129) says that court shall have the power to pun
contempt of itself. As a matter of fact, once you make a Co
Record by statute, the power to punish for contempt necess
follows from that position. But it was felt that in view of th
that in England this power is largely derived from the comm
and we have no such thing as common law in this country, w
it better to state the whole position in the statute itself.8

Thus, we find that the Constitution of India, (under articles

215) recognises the Supreme Court of India and the High Court
courts of record whose main characteristics are -

(i) that their proceedings would be preserved in perma

records;
(//) these records would be conclusive evidence of what is recorded
thereunder; and
(iii) such courts have inherent summary power to punish for con-
tempt. Such records serve as precedents.9
As Blackstone said that the power to punish for contempt is an inse-
parable attendant upon every superior tribunal which are all courts of
record.10 In the Government of India Act, 1935, section 203 merely
declared the Federal Court as a court of record. Though by this very
declaration, the power to punish for contempt is implied yet it was felt
that in article 129, this should be made explicit. Adopting the language
of Gwyer, C.J., who stated with reference to the Federal Court in K.L.
Goauba v. The Chief Justice and the Judges of the Lahore High Court11:
"This Court being a Court of Record has all the powers which belong to
such a Court, including the power to punish for contempt of itself."12

7. Vol II, p. 527, quoted by Ramachandran, ibid.

8. Quoted by Ramachandran, ibid.
9. Vinayak Shamrao v. Moreshwar Ganesh , A.I.R. 1944 Nag. 44 (F.B.).
10. Bijoyananda Patnaik v. Balakrushna Kar . A.I.R. 1953 Ori. 249.
11. A.I.R. 1943 F, CJ,
12. Id. at 2,

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1978] LEGISLATION OF BASIC FEATURES OF COURTS OF RECORD 277

It should be noted that articles 129 and 215 emphasise all the
attributes of the courts of record including the power to punish for their
contempt. The highest courts of the United Kingdom are the courts of
record and so are the High Courts and the Supreme Court of India. The
other attributes of these courts are emphasised by the word 'including'.
What is not specified is also thus inferentially included. These are that
the courts should keep a clear record to serve as the permanent record, that
the statement of the law of the court therein is binding on the lower courts,
such precedents are binding even if there are dissenting views in the
judgment, the salutory rule being the majority view is binding. These
attributes are inherent in the courts of record and as such they are not
amenable to the legislative power for curtailment or abolition of the
judicial power.
The issue, therefore, is whether under the Forty-second Amendment,
Parliament can fix the requisite majority for a binding decision. To fix
two-third of the Bench to be the requisite majority is to limit the powers
of the courts of record. Further, it is interfering with the essential basic
feature of the law as to judicial precedents. It will then be tantamount
to the fixation of a majority similar to a resolution recommending
'supersession' of a municipal council. That will smack of judicial canvas-
sing, susceptible to manipulation by a dictatorial executive, which somehow
gets to have a voice in the selection or promotion of the judges. The very
independence of the judiciary is thereby threatened.
It has to be mentioned that the judges take their oath of office
to uphold and defend the Constitution. The Constitution presents a basic
federal structure run on the tri-wheel (three wheels) of the executive, the
legislature and the judiciary. To curb one wheel i.e., the judiciary, will
make the machine of federal democracy run outside the chosen consti-
tutional track.
It, therefore, behoves the judges of the Supreme Court to see that
the basic features of the courts of record are in no way jeopardised. The
courts have adequate inherent power to prevent this. The preamble of
the Constitution assures the citizens of 'Justice', which includes not only
political, social and economic justice, but also the machinery of justice -
the courts of record which will assure the citizens of a fair deal vis-a-vis
judicial pronouncements. These judicial pronouncements, to be binding,
have to be majority decisions. The court can overrule the same on a
subsequent occasion by reference to a larger Bench. Further, under article
141, the law of the land is what the Supreme Court says.
So, the Supreme Court can suo motu declare that articles 144-A and
228-A are ultra vires , as they affect the basic powers of the courts of record
as to what are binding precedents. The executive or the legislature has no
jurisdiction to interfere in that area.
It is unfortunate that in a recent case reported in the Hindu of 3 May,
1977, the Supreme Court expressed its inconvenience vis-a-vis article 144-A
and suggested that Parliament should itself rescind the article leaving it

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278 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 20 : 2

to the courts to fix the needed majority for a binding decision.

It is hereby submitted that the Supreme Court can itself
declare articles 144-A and 228-A ultra vires. The court can issue notice
to the state, the Attorney-General and the Advocate-General to argue the
point and after hearing them, give its decision on the constitutionality of
these articles.

Quo Warranto under articles 124 and 217

Another aspect which needs special mention is the provision in articles
124 and 217. The provision in article 124 clearly enjoins that the appoint-
ment of the judges of the Supreme Court by the President shall be preceded
by his consultation in that regard with the sitting judges of the Supreme
Court and the High Court as he deems necessary. This phrase 'deems
necessary' does not mean that the President's powers in this area can be
usurped by the central Cabinet or the Prime Minister. In both the articles
124 and 217 the executive is purposely left out of account. Yet, since
1973, leading to the resignation of the three Supreme Court judges and
thereafter the resignation by Justice H.R. Khanna, it is the Cabinet
that virtually compels the President to appoint the judges of its
choice, either to the Supreme Court or to the High Court. This is a
shockingly dangerous phenomenon affecting the very independence of the
judges. It is unconstitutional as it transgresses the provisions of articles
124 and 217. Any judge appointed in the aforesaid fashion at the initiative
of the executive, with the President not exercising his individual judgment
after due consultations with the sitting judges as enjoined in these
articles will be an intruder whose warrant of appointment can be quashed
by a writ of Quo Warranto.

Plea of common justice

The Chief Justice of India, or the Chief Justice of the High Court
concerned, or any judge of these courts can suo motu take action. The new
appointee may be denied the oath of office by the sitting judge who can
demand the matter to be argued. This suo motu proceeding may be
initiated after notice to the state, the Attorney-General and the Advocate-
General concerned.
It is humbly submitted that in the interests of (i) the independence of
the judiciary, and in the interests of ( it ) the common man seeking justice,
the two aforesaid propositions, namely, the vires of articles 144-A and
228-A, as also the need for Quo Warranto action under articles 124 and
217 should be fully considered by the Chief Justice of India and by the
Chief Justices of the High Courts. They may be pleased to take suo motu
action in this regard and direct the Attorney-General and the Advocate-
General to argue the matter if need be as amicus curie or pro bono publico.
It has been proved beyond doubt that the emergency era from June
1975 to March 1977 has been one of draconian despotism. Nothing
prevents the executive to usurp dictatorial powers and reduce the judicial

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1978] LEGISLATION OF BASIC FEATURES OF COURTS OF RECORD 279

wing to one of non-entity. It is, therefore, just and necessary that the
Chief Justice of India should make a statement in this regard in open
court, for the executive and the legislature to take note of. It will be in
the nature of judicial white paper followed by action sui generis by the
court vis-a-vis ( i ) the vires of articles 144-A and 228-A, and (w)-the
appointees to the judiciary, in violation of articles 124 and 217.
Without waiting for a writ to be moved by a party or the state, the
Supreme Court owes to itself the duty to uphold its own powers as a court
of record and as also being its previleges under article 124. We are at
pains to mention the above, as the trend of political events in the last
decade demonstrably show that the judiciary has to find its own ways and
means to uphold its prestige, dignity and rights. It is futile to think that
either the executive, the legislature or even the people will safeguard the
citadel of justice.
We desire to mention these aspects of the suo motu powers of the
Supreme Court and the High Courts, since it is time consuming to have
legislative redress. For one thing to get the Forty-second Amendment
wholly repealed will atleast take one year or less as it involves approval of
the state legislatures also. In the interregnum the Supreme Court may have
to deliver opinions in which the majority view may be expressed by less
than the required two-thirds as contemplated under the Forty-second
Amendment. So it appears proper that the Supreme Court should act at
once suo motu as aforesaid.
Further it appears necessary to have articles 124 and 217 suitably
amended so as to make it clearly mandatory for the President to have the
consultation with the judiciary before he appoints any judge for the superior
courts of record. The needed amendments are :
(1) In article 124 clause (2) before the words "after consultation with
such Judges" insert the word only.
The phrase 'President may deem necessary ' may be altered to
'President may deem sufficient', since the word necessary may imply
even non-consultation.
(2) In article 217(1) similarly before the words 'after consultation'
the word only be inserted.
It is hoped that the new dispensation at the centre in view of its
championship to preserve judicial dignity and powers may effect the
aforesaid amendments. Otherwise the appointment of the judges of the
courts of record will be in the hands of the executive rather than with the
President qua President.
V.G. Ramachandran*

* Advocate, Madras High Court.

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