Commerce and the Constitution

The triple Montesquieuan instrumentalities of state power have been created by the Constitution and they should necessarily function under it. Any legislation that creates a contradiction should stand invalidated.

The provisions in the Commercial Division of High Courts Bill, 2009 that seek to give special and fast-track treatment to a certain class of cases has first to be examined to see whether it violates the fundamental principle of suprema lex. The Bill has as its foundation a special provision to establish commercial divisions in courts with the objective of achieving quicker disposal by expert tribunals of commercial disputes that involve a sum of Rs.5 crore or more. The idea is to facilitate their early disposal so that the rich who are involved in such disputes do not have to wait for too long for a final adjudication.

The Bill is based on this principle of facilitation in favour of the richer among litigants who through a special body of the High Court and other relative clauses can get their disputes adjudicated and quickly disposed of. The number of appeals will be reduced to one, in the Supreme Court. Meanwhile, the poor person whose litigation mostly involves a value that is below Rs.5 crore has to wait for the outcome at the Munsiff’s Court, the District Court, the High Court, the Letters Patent Appeal and the Supreme Court. In India these proceedings, tier upon tier, take decades before a final judgment comes. Often it takes more than a generation.

It is obvious that there is discrimination writ large here between two classes of litigants. This will also reduce the number of judges available to hear ordinary items of litigation, commercial, labour and land disputes that involve a jurisdictional value that is less than Rs. 5 crore. This will necessarily mean a longer time-span for the conduct of proceedings and final disposal by fewer judges who will be left to handle them. Obviously the rich are favoured by helping them achieve early finality. Meanwhile the poor and the middle classes have to hang on often for a life-time for an outcome. Trade union litigation where workers are involved, peasant-widows seeking maintenance, common land disputes and so on will be discriminated against and suffer inordinate delays.

Equality is a fundamental right under Article 14. Social justice really means that justice, justices and justicing have an equal obligation to render early justice. To divide social justice into two categories, the rich being given special facilities for early justice and the not-so-rich being forced to wait, is violative of Article 14. It also constitutes breach of social and economic clauses.

Justice-delivery should involve an integrated system; it cannot be dichotomised. A division that is based largely on the monetary dimension of litigation is obnoxious, all the more so because this is a socialist-democratic Republic. To provide special facilities for the rich and to pejoratively assign the weaker sections in another category constitutes an irrational differentiation. Democracy is fundamentally equality of the judicial process. To make the monetary value of a commercial dispute the basis of classification is undemocratic.

The different chapters of the Bill merely seek to implement this discriminatory classification. There is no reason why workers and peasants, women and children, with their claims for maintenance and right to life, should not be given similar justice in the forensic process. The truth is evident. The richer the litigant, the earlier the law secures justice. All the rest, namely the weak, the downtrodden and the penurious, should undergo considerable delay in getting ultimate justice from the courts.

Such a distinction will be arbitrary and bad in law. The Bill is vitiated by this pro-plutocratic clause. The dichotomy is irrational and invalid. The only justification given is that the richer investor must be given fairer treatment. Will the rest have to be content, then, with protracted adjudication?

Socialism, democracy, equality and economic justice with a sense of speed and early finality are requirements that are being denied to the majority of litigants. This fundamental flaw against the little Indian is too obvious. The law grinds the poor and the rich govern the law. The richer classes cannot rob the court’s time for their benefit, leaving the poor with their little money wasted across more tribunals before they can ever hope to see the end of the case.

Indian socialism and democracy are the victims of feudalism, capitalism and corporate control, even as the courts enjoy longevity without accountability. The objects and reasons of the Bill explain the untenable reason for a separate class of tribunals, or Divisions, of the High Court. The original jurisdiction itself is given to the Commercial Division of the High Court designed to reduce the length of the litigation. Judgments have to be delivered within a month of the conclusion of arguments.

All the reasons given for the creation of such a special facility apply with equal force to other types of litigation. Why should only big commercial firms or corporations enjoy the luxury of early disposal? This discrimination argues its own unconstitutionality. The Minister for Law and Justice is quite competent to see the flaw, but the bureaucracy often covers up this weakness.

Of course, equality under Article 14 is not totally allergic to classification of cases, provided there is a clear differentiation between the classes and provided such differentiation has a rational relation to the object of the legislation which sanctions a classification.

What is the object of the legislation here? Early disposal, swift dispatch and quick disposal at less cost of litigation in cases that involve a value of Rs.5 crore and above. The objectives do not make any differentiation except that the rich man must have his cases decided with early finality while the poorer man may have his cases pending till he perishes. This differentiation is irrational and outrageous in a socialist-democratic state. This is a classic instance of irrational egalite under Article 14.

The legislation classifies litigation into two categories. The poor litigant will wait for the somnolescent process and leisurely pronouncement and the wealthy litigant will have his case speedily terminated. If this be the differentiation, it is horrendous and outrageous in a socialist democracy.

Perhaps William Goldsmith was right when he said: “Laws grind the poor, and rich men rule the law.”


The quotation, "laws grind the poor, and rich men rule the law," to William Goldsmith, should have been Oliver Goldsmith. It was an editing error.

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Printable version | Oct 1, 2020 11:05:22 PM |

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