Legal Notes by Arvind Datar: Ex debito justitiae and Article 32

Can a judgment of the Supreme Court be questioned by way of writ petition under Article 32 on the principle of ex debito justitiae? This once again raises the conflict between the need for finality and the need to do justice in individual cases. 

The Latin maxim ex debito justitiae literally means a debt of justice. The Supreme Court has held that it has inherent power to act ex debito justitiae - to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. [Dinesh Dutt Joshi v. State of Rajasthan, (2001)]

The application of this principle in AR Antulay v. RS Nayak (1988) was the basis for setting at naught an earlier direction of the Supreme Court to transfer the trial of the former Chief Minister to the Bombay High Court, to be tried by a sitting High Court judge. This order was initially sought to be challenged by a writ petition under Article 32 that was dismissed but liberty was granted to Antulay to approach the court with an appropriate review petition. As Antulay did not file a review petition, this order of transfer of the trial became final. Despite this finality, the majority (5:2) held that the direction to try this case by a High Court judge was violative of Articles 14, 21 as well as the principles of ex debito justitiae. 

This decision has been rightly subjected to scathing criticism by HM Seervai. The dissenting views of Venkatachaliah J and Ranganathan J are extremely important.  Venkatachaliah J pointed out that setting aside the order directing a trial by a High Court judge would have the effect of setting aside no less than three judgments of five-judge benches of the Supreme Court, apart from a number of earlier decisions of other benches as well. It would also set at naught the trial proceedings which had gone on for three years and where 57 witnesses had already been examined. It is submitted that the decision in Antulay is erroneous and ought to be overruled in the coming years.

The ex debito justitiae principle was also discussed in detail in Rupa Ashok Hurra v. Ashok Hurra (2002) which then became the basis for the curative jurisdiction.

However, both Antulay and Rupa Hurra held that a final judgment or order passed by the Supreme Court could not be assailed in a writ petition under Article 32 by any aggrieved person, whether a party to the judgment or not.

The application of the principle of ex debito justitiae was recently considered in HDFC Bank Ltd v. Union of India (2023). This case involved a conflict between the right to information of bank defaulters and other reports under the Right to Information (RTI) Act, 2005, as against the right of the Reserve Bank of India (RBI) to prevent disclosure of such information on grounds of confidentiality and fiduciary relationship.

In RBI v. Jayantilal Mistry (2016), the Supreme Court held that the public interest under the RTI Act would prevail. Pursuant to this judgment, the RBI directed disclosure of information. This was once again challenged in a writ petition under Article 32 by several private banks in 2019. An application to recall the earlier judgment in Jayantilal Mistry was also filed by RBI. Both were taken up together, but the bench directed de-tagging of the writ petition and all questions raised therein were left open. However, the recall applications were dismissed as not maintainable on the ground that they were essentially applications for review. The Court observed that such dismissal would not prevent RBI and other banks to pursue other remedies available to them in law.

An application was filed questioning the maintainability of this writ petition in the HDFC Bank case. It was argued that the writ petition under Article 32, in effect, challenged the judgment in Jayantilal Mistry, which had attained finality.

After discussing the earlier case law and the principle of ex debito justitiae, the Supreme Court took the prima facie view that the earlier decision in Jayantilal Mistry did not take into consideration the aspect of balancing the right to information and the right to privacy. The writ petition questioned the RBI directions on the ground that they affected the right to privacy of customers of the banks, who were citizens of India.

The Supreme Court held that a litigant does not have an opportunity to approach any higher forum to question its decision. In this case, the only remedy available was to approach the Supreme Court by way of a writ petition under Article 32 for protection of the fundamental rights of the customers of the bank who are citizens of India. Although the concept of finality of a judgment must be preserved, the principle of ex debito justitiae cannot be given a go by. The Court can always reconsider the earlier decision, and, if necessary, refer it to a larger bench.

It is submitted that these observations are not correct and the Court incorrectly upheld the maintainability of the petition under Article 32. The correctness of the Jayantilal Mistry decision could have been tested only in a review petition under Article 137. The failure of this decision to balance the right to privacy with the right to information cannot be a ground to question this decision under Article 32. Indeed, the RBI had issued directions in compliance with the ruling in Jayantilal Mistry.

The recognition of the right to privacy came in the case of KS Puttaswamy v. Union of India (2017) - after the decision in Jayantilal Mistry in 2015. Further, on facts, Jayantilal Mistry had considered the balance between the right to information and right to privacy and has held that the right of the public to know would prevail over the right of banks to maintain confidential information. The only way to overcome the ruling in Jayantilal Mistry is to amend the RTI Act or the Banking Regulation Act so that the right of the banks to maintain confidentiality prevails over the RTI Act. It is for parliament to step in and amend the relevant laws suitably.

It is incorrect to state that the banks have no higher forum to question the decision except to file a writ petition under Article 32, especially when no review petition was filed. Undoubtedly, it is open to a bench of two judges to doubt the correctness of the earlier ruling and then refer the matter to a larger bench. But this cannot be circumvented by resorting to Article 32 on the principle of ex debito justitiae.

In the Antulay case, Venkatachaliah J rightly noted the words of caution of the Judicial Committee in Venkata Narasimha Appa Row v. Court of Wards (1886):

“There is a salutary maxim which ought to be observed by all courts of last resort — interest republicae ut sit finis litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decision of such a tribunal as this. (emphasis supplied)”.

The judgments of a polyvocal court are bound to throw up errors that may be noticed in a later decision. The remedy is to follow the route of review under Article 137 and, if maintainable, a curative petition. An incorrect decision can be overcome either by Parliament removing its basis or by a decision of a larger bench. It is submitted that the reference to larger bench should be avoided to maintain the finality of a judgment, particularly if it has stood the test of time. The danger of resorting to Article 32 to set right errors in an earlier judgment seriously undermines the finality of rulings of our highest court. This is a consequence which is far worse than injustice being done in a particular case. The Supreme Court should avoid doing what parliament ought to do.

Arvind P Datar is a Senior Advocate of the Supreme Court of India.