E. OM PRAKASH, Senior Advocate Topic : “Legal Remedies” A. Introduction “Ubi Jus Ibi Remedium” is a Latin Maxim which we would have come across as students of law. The said legal maxim, effectively means ‘where there is a right, there is a remedy’. All legal systems recognise this fundamental principle and paves way for remedies to its citizens by establishing Courts of Law, by administering justice and granting reliefs. For the purpose of this session, we are not going to deal with the Criminal Law Remedies, being a separate field, identical to what we seek to analyse here.
By
E. OM PRAKASH, Senior Advocate
Topic : “Legal Remedies”
A. Introduction
“Ubi Jus Ibi Remedium” is a Latin Maxim which we would have come across as students of law. The said legal maxim, effectively means ‘where there is a right, there is a remedy’. All legal systems recognise this fundamental principle and paves way for remedies to its citizens by establishing Courts of Law, by administering justice and granting reliefs. For the purpose of this session, we are not going to deal with the Criminal Law Remedies, being a separate field, identical to what we seek to analyse here.
A Legal Remedy is nothing but a Relief or Remedy we seek within the framework of Justice Delivery System. This, for the purpose of this session, is categorized into (1) Common Law Remedy, (2) Statutory Remedy and (3) Constitutional Remedies.
As Practitioners of law, we are required to decide on the remedy for our client, advise them on the remedies to be sought for and which forum we have to approach.
A person who has a right seeks adjudication of his right, the breach arising thereof and the relief in the nature of compensation, damages, injunctions, specific relief, etc.
The principle is established in one of the earliest decisions known as Ashby v White (1703) 92 ER 126, wherein prevention to cast a vote in the election by act of misfeasance by a constable on the pretext that the person was not a settled inhabitant, had brought in the action.
The following are some of the common rights a person seeks to enjoy and enforce:
Right to property, its possession, its enjoyment, etc.
Right to privileges, inheritance, etc.
Right arising under contractual obligations, etc.
These rights are regulated by statutes like Transfer of Property Act, Contract Act, Personal Law, Specific Relief Act, Sale of Goods Act, Easements Act, etc. and fall within the category of Common Law Remedies.
Statutes of the legislature also provide for certain rights, regulate those rights and provide for specific remedies under the said statutes and the forums before which the remedy is to be sought. These can be termed as Statutory remedies.
The Constitution of India under certain specific articles also provides for certain remedies to its citizens and such remedies provided under the Constitution can be termed as Constitutional remedies.
B. Common Law Remedies:
Common Law Remedies is the regular reliefs we seek for on account of acts like trespass, encroachment, nuisance, negligence, torts, any breach of obligations, etc. before regular Civil Courts. The hierarchy of the Civil Courts are known to us, starting from the Munsiff, Sub-Court, Distrct Court and the High Court of the State.
The classical common law remedy is obtained by filing a civil suit in a proper civil court and seeking appropriate remedy. Code of Civil Procedure regulates the civil suits before the Civil Courts. Section 9 of the Code defines the jurisdiction of a Civil Court as follows:
Section 9 – Courts to try all civil suits unless barred
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I –
A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II –
For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
This provision confers the jurisdiction on the civil courts to decide the civil suits, unless the same is barred by a statute expressly or impliedly may not lie.
In the case of Smt. Ganga Bai v. Vijay Kumar and Ors. MANU/SC/0020/1974 : [1974] 3 SCR 882 the Hon’ble Supreme Court had observed as under:
“There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of one’s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit.”
Further in the case of Dhannalal v. Kalawatibai and Ors. MANU/SC/0565/2002 : [2002] SUPP 1 SCR 19 relying on the afore-extracted observation in Ganga Bai’s case, the Hon’ble Supreme Court had held as follows:
“Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of plaintiff’s choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.”
The Constitution of India provides for legislative power to the Centre and State and also concurrent power by way of Entries in the Lists I, II & III of Seventh Schedule of the Constitution, in terms of Article 246 of the Constitution of India. The Union subjects are in List I, State subjects in List II and the Concurrent subjects in List III.
The following entries speak about the constitution of the Civil Courts, including the territorial and pecuniary jurisdictions:
List I
Entry 95 – “Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; Admiralty jurisdiction.”
List II
Entry 65 – “Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.”
List III
Entry 11-A – “Administration of justice; constitution and organisation of all courts, except the Supreme Court and High Courts.
Entry 46 – “Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.”
Accordingly, each State has its own Civil Courts Acts delineating the territorial and pecuniary jurisdictions. In Tamil Nadu we have Tamil Nadu Civil Courts Act, 1873 and the Chennai City Civil Court Act, 1892.
A question as to the vires of such City Civil Court Act of Bombay came up for consideration before the Hon’ble Supreme Court in one of the earliest decisions, where the reference was to the Government of India Act, 1935 with identical Entries as that of the Constitution of India. A five Judge bench with individual Judgements of each of the Scholarly Judges of that time is the reported case of State of Bombay – Vs – Narothamdas Jethabai and Ors. AIR 1951 SC 69.
Let us see the nature of common law remedies which we seek for before the Civil Courts. They are Declaratory Reliefs, Injunctive Reliefs, Recovery of Possession, Specific Performance, Compensation and Damages. Depending on the right to be established the relief is sought for. As the Hon’ble Supreme Court held, “It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue.” This is the touchstone of the Common Law Remedy.
Such Reliefs under common law remedies are regulated to some extent by the Specific Relief Act, Law of Limitation, etc. Interestingly under the savings provision under Section 3 of the Specific Relief Act, it is stated that nothing in the Specific Relief Act shall be deemed to deprive any person of any right to relief, other than specific performance under any contract. The Act further sets out the remedies for Recovery of Possession, Specific Performance, Nature of Injunctive Reliefs – Preventive and Mandatory, Restoration, Recompense, Perpetual Injunctions, etc.
The reliefs before civil courts being our bread and butter, I am not taking you any further on this. Suffice to say that common law remedies form the basis of Legal Remedies at the first instance.
C. Statutory Remedies
Statutory remedies arise from the fact that the law confers the right to sue, in contradiction to the common law remedies. These flow from specific statutes, which define certain rights, regulate the rights and provides for the remedies. Such remedies under the statutes may again vest the jurisdiction with the Civil Courts or create special courts / tribunals to grant such relief.
The Land Tenure enactments (Acts relating to Estates Abolition, Ryotwari, etc.), Rent Control Enactments, Land Acquisition laws, Labour Legislations, Industrial Disputes, Special Economic enactments (Tax laws, Debt Recovery laws, Insolvency laws, etc.), Consumer Protection, Intellectual Property Rights (Copyrights Act, Patent Act, Trade Marks Act, etc.), Environment laws {Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; Environment (Protection) Act, 1986.} etc. This also includes the establishment of Tribunals (Administrative, Tax, Recovery, Economic offences (PMLA, SEBI, etc.) and Special Courts.
The existence of the special statutes and the regulations it provides drive the remedies under such statutes. The following shall be the parameters in assessing the statutory remedies.
Right being provided, recognized or regulated
The enactments provide for the rights of the parties, it regulates the exercise of such rights.
Remedies delineated within the frame work of law
The remedies in respect of exercise or breach of such rights under the special laws are set out under the same statute. While doing so, the laws also read into it procedures of common law remedies, provisions of other enactments, etc.
Bar of Jurisdiction
Most of these laws which provide for specific remedies, bar the jurisdiction of the Civil Courts in respect of the relief which is within the jurisdiction of such Courts / Tribunals which are established under the said law.
Forums to seek for such remedy
In case of statutory remedies, the specific Act provide for the forum before which the remedy is to be sought. It sometimes relegates to the Civil Courts with the specific relief, or the Special Courts or Forums or Tribunals created.
Remedies of Appeals
The appeal remedies under the statutes are also guided and are in terms of the Appellate forums recognized under the said statute. In many cases, no appeal remedy lies to High Courts, except limited power of revision, review and reference on specific questions of laws. Finality is vested with the Appellate Forums created under the statutes. Certain statutes like Consumer Protection Act, SEBI Act, IBC, etc. provide a remedy of further appeal from the Appellate Forum to the Hon’ble Supreme Court of India only on the question of law arising for consideration.
Salient feature of the statutory remedies is the bar of jurisdiction of the civil courts, which is the common law remedy before the Civil Courts.
All the special statutes which create a law on special subjects are always tested as to its vires of the constitutional validity and has to pass the muster of the Supreme Court in upholding the same. Therefore, it would always be impediment to look to such decisions upholding the law, which would serve as a guidance for the remedy we seek.
Be it whatever the statute may provide, the statutory remedies necessarily have to conform to the (1) Due process of law and (2) Adhering to Principles of Natural Justice. These two principles have always been read into the scheme of any enactment by decisions of the Court and any decision in breach of the same results in being set aside.
D. Constitutional Remedies
Constitutional Remedies are those contained in Articles 32, 136, 226 and 227 of the Constitution of India. Two of the articles relate to the power exercised by the Hon’ble High Courts and the other two are by Hon’ble Supreme Court.
To understand these remedies, it is essential that the framework of Constitution as to the individual’s rights needs to looked into. Part III of the Constitution of India speaks about “Fundamental Rights” from Art 12 to Art 35. The epitome of this Part is Art 32, which provides for enforcement of rights conferred under this Part.
Article 32-Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
The High Courts are also vested with rights to enforce the fundamental rights conferred under Part III of the Constitution. Article 226 of the Constitution provides for the same.
Article 226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the scat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without–
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
Under Article 32 and Article 226, the Supreme Court and the High Court possess the power to issue prerogative writs for the enforcement of the fundamental rights. As could be seen from the Articles itself, the writs are in the nature of
Writ of Certiorari
Writ of Habeas Corpus
Writ of Quo Warranto
Writ of Mandamus
Writ of Prohibition
The issuance of the Writs by the Supreme Court and High Court is in the exercise of power of Judicial Review. The basis of judicial review under these writs generally is the doctrine of ultra vires. The power of Judicial Review is exercised when the following grounds exist
(1) Abuse of power,
(2) Excess of jurisdiction,
(3) Lack of jurisdiction,
(4) Error of law apparent on the face of the record,
(5) No legal evidence in case of a finding of fact, etc.
The Courts review findings of the fact only on such rare grounds as when the finding is perverse or there is no legal evidence (that is, complete lack of evidence) to support it.
All Acts of Parliament and State Legislatures are bound to be within the frame work of the Constitution of India and are bound to follow the principles laid down therein and cannot be in violation of the provisions of the Constitution or in breach of the Fundamental Rights guaranteed to the citizens. Therefore, apart from enforcement of the fundamental rights guaranteed under Part III, a much of jurisprudence is on the issue of validity of the various laws. Any challenge to the enactment is tested on the principles enshrined in the Constitution of India, thus the vires of the Act can be questioned under the said two Articles.
Such challenges to the laws of the land, actions of Executive and orders of the State Authorities are tested on the doctrines and principles of interpretation. These are the tools in the hands of the Advocates in seeking for exercise of judicial reviews by the Supreme Court and High Court while seeking for the remedy.
Article 32 Vs Article 226
The difference in powers exercised under Art 32 and Art 226 is a seminal point in many a decisions. Though both articles provide the constitutional remedy for enforcement of the fundamental rights guaranteed under Part III of the Constitution, there is paramount difference in the power to be exercised and the scope of jurisdiction.
Art 32 states that Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. While Art 226 states that High Court shall have power to issue directions or orders of writs “for the enforcement of any of the rights conferred by Part III and for any other purpose”. Therefore, High Courts have wider power as the writs can be issue for any other purpose apart from enforcement of any of the rights conferred by Part III. As such the power of High Court under Art 226 is wider than the power of Supreme Court under Art 32.
The other constitutional remedy by High Court
The High Court apart from exercising power under Art 226 in issuing writs, also has power under Art. 227, which is in the nature of supervisory jurisdiction over the subordinate courts.
Article 227 – Power of superintendence over all courts by the High Court
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may–
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
This is yet another constitutional remedy wherein the High Court can grant a remedy in respect of any gross irregularity, orders in case of lack of jurisdiction, resulting in gross injustice. The High Court under Art 227 has power of superintendence over Courts and Tribunals. The orders of the Tribunal are practically covered by Art 226 and 227 of the Constitution. However, under Art 227, the High Court may interfere suo moto and apart from annulling the decision can issue further directions in the matter, but under Art 226 it may interfere only on the application of a party, wherein in can only annul the decision of a Tribunal by a Writ of Certiorari.
The other remedies before the Supreme Court
The Supreme Court, apart from Art 32 for enforcement of the Fundamental rights, is also vested with a power to interfere with any judgement, decree, determination, sentence, etc. by way of special leave. Art 136 provides for the same and is one of the discretionary reliefs in the administration of justice. Today the maximum litigations before Supreme Court is under this Art.
Article 136 – Special leave to appeal by the Supreme Court
(1) Not withstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
In the case N. Suriyakala Vs A. Mohandoss & Ors. reported in (2007) 9 SCC 196, the Supreme Court explained the scope of Art 136 in the following words:
“Article 136 was never meant to be an ordinary forum of appeal at all like Section 96 or even Section 100 CPC. Under the constitutional scheme, ordinarily the last court in the country in ordinary cases was meant to be the High Court. The Supreme Court as the Apex Court in the country was meant to deal with important issues like constitutional questions, questions of law of general importance or where grave injustice had been done. If the Supreme Court entertains all and sundry kinds of cases it will soon be flooded with a huge amount of backlog and will not be able to deal with important questions relating to the Constitution or the law or where grave injustice has been done, for which it was really meant under the constitutional scheme. After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute.”
The Court had also earlier held in the case of State of Maharashtra v. Champalal Punjaji Shah, reported in AIR 1981 SC 1675 that the Supreme Court should not hesitate to interfere in cases where the decision of the lower court will lead to miscarriage of justice.
However in the case of Gopal & Ors. v. State of T.N., reported in AIR 1986 SC 702 it was held that unless there is any infirmity or any illegality in the order of the lower court or that it would lead to failure of justice, the court should not interfere by exercising its discretionary jurisdiction under Article 136.
The other Article of the Constitution which goes with Art 136 is Art 142. A greater plenary power in the form of Art 142 provides for doing complete justice by the Supreme Court.
Article 142 – Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order1 prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
This is in the nature of corrective measures for balancing the conflicting interest of the parties before the Court. It is an inherent power and jurisdiction for dealing with extraordinary situations. The law on Art 142 was well summed up by the Hon’ble Supreme Court in the case of Laxmidas Morarji v. Behrose Darab Madan, reported in (2009) 10 SCC 425 in the following words:
“Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties.”
Any constitutional remedy sought, either for enforcing the fundamental rights or deciding the vires, the same is decided on certain Rules, Doctrines and Principles which are seen as tools of interpretation.
The Rules of interpretation are Literal Rule, Golden Rule, Mischief Rule and Purposive Interpretation. Some of the doctrines are, Doctrine of Pith and Substance, Doctrine of Harmonious Construction, Doctrine of Colourable exercise, Doctrine of Eclipse, Doctrine of Severability, etc. Manifest Arbitrariness is also a tool for the purpose of Judicial Review adopted by the Hon’ble Supreme Court.
The most important doctrine which has been derived is the Doctrine of Basic Structure, which is the result of the celebrated judgement in Keshavanada Bharti Vs State of Kerala, reported in (1973) 4 SCC 225. The latest is the Doctrine of Constitutional Morality.
The Hon’ble Supreme Court has also provided for a large amount of jurisprudence on the power of the law makers to amend the Constitution under Art 368 of the Constitution. Keshavanada Bharti case is the guiding principle on the point as on date.
E. Conclusion
Constitutional Remedies are the life line of the legal remedies of a democratic society, where rule of law has to prevail for a pluralist society to achieve its objects of constitutional goals.
The common law remedies establish such rule of law as a due process in the administration of justice. However, over the years, many reliefs which were common law remedies have taken shape as Statutory remedies and the trend is in the upward.
