This paper contends that the concept of inherent powers of the Court serves as a legitimate procedural remedy within the Indian Civil Legislation. Invocation of these powers by the Court is ushered by the necessity of guarding the operations of the Court and the impression of justice. However, these powers vested with the Courts are discretionary in nature and open their use to the philosophy of Judicial Activism. This paper portrays a clear set of limitations that come with the invocation of these inherent powers and contends that to ensure minimal abuse of discretion flowing from the exercise of these powers, judicial restraint is vital.
“There is an orderliness in the universe, there is an unalterable law governing everything and every being that exists. It is no bind law; for no bind law can govern the conduct of living beings.”
Our legal system governs our privileges and liabilities depending upon legal principles rather than equity. Courts are established on the central theme of complete justice to address and redress the profusion of the issues that inevitably occur before them. Laws provide them with this authority by guiding and by putting limits onto them. Therefore, to not let this undeniable redundancy meddle with the meting of justice proficiently and successfully, the Code of Civil Procedure, 1908 which regulates the procedural aspect of civil litigation in India, has been provided with the extension of powers of the Court, referred to as the inherent powers. The object behind providing this privilege is to facilitate justice and to further the ends of justice. This paper analyzes the nature and scope of the inherent powers of the Court, focusing mainly on Section 151 of the Code which talks about the saving of inherent powers of the Court, by examining the relationship between the powers and the Courts’ procedural mechanism using case laws.
INHERENT POWERS– DEFINITION AND SCOPE
The term ‘inherent powers’ is constantly used in the adjudicatory processes, however, there is no consensus regarding its full impact due to its wide scope. P. Sirajuddin’s[i] case clarified that securing the ends of justice was the primary aim of the law-makers behind instituting various provisions of the law regarding its procedure.[ii] These innate forces are derived from the relevant practice and not by any statute, enabling Courts to maintain their dignity, and secure discipline to its operations fairly and impartially. Briefly, these are intrinsic, essential elements which are vested with the Courts as a right of privilege, to atone for any wrongdoing while administering the ends of justice.
Section 148 to 153 of the Code visualize the exercise of these inherent powers in varying circumstances. “These provisions are as follows:
i) Sec 148 and Sec 149 deals with grant or enlargement of time;
ii) Sec 150 deals with the transfer of business;
iii) Sec 151 preserves the inherent powers of the Courts;
iv) Sec 152, 153 and Sec 153A deal with amendments in judgments, decrees or orders in other proceedings.
The extensive scope of Section 148 to 153 aims to “reduce litigation while providing complete justice between the parties.”[iii]
SECTION 151 OF THE CODE
The non-exhaustive Code provides a comprehensive procedure for regulating justice orderly. However, it cannot be expected to cater to the unlimited variety of circumstances which may arise in the course of litigation. Although cases may have some common elements, some require special consideration regarding procedural remedy and therefore legislators are demanded to act upon the assumption of possession of these inherent powers. Section 151 of the Code deals with the saving of inherent powers of the Court, recognizes the same and states that the provisions of the Code do not constrain the scope of these innate powers, but it shall be presumed that the procedure provided by the Legislature is directed by ends of justice to forestall maltreatment of the process of the Courts[iv]
Section151 highlights two elements or objectives which are acknowledged by the Court while exercising these powers. Firstly, the powers must be exercised to meet the ‘ends of justice’ and secondly, it should ‘prevent the abuse of the process of the Court’. It is a saving clause that gives authoritative acknowledgement to a well-established principle each Court possesses to provide genuine and substantial justice between parties, for the administration of which it alone exists.
Since the Code fails to define the phrase “ends of justice”, the case of Debendranath[v]explained these words as grave words and not mere gracious articulation in juristic methodology, since justice is considered as the interest and end of all law. However, these words don’t mean obscure and uncertain notions of justice according to the established laws of the land. [vi] The Court’s allowed to exercise these powers to pass an injunction in a case not covered by Order 39[vii]. by circumventing statutory provisions[viii] or to set aside an ex parte order passed against the party[ix] etc. However, the central idea behind it remains that these powers can be exercised by the Court in the light of justice, equity and good conscience.[x]
On the other hand, the phrase “abuse of process of the Court” has been defined by Mulla as the malicious and unjustified use of legal proceedings to further a cause of action or to obtain an advantage over the opposing party in an action by causing injury to them. [xi] The abuse occurs when a Court in a proceeding employs a procedure unintentionally leading to the miscarriage of justice, remedies are then provided based on the Doctrine of actus curiae neminem gravabit.[xii] Similarly, a party abuses the process of the Court when they execute actions like obtaining benefits by practising fraud on the Court or a party to the proceeding[xiii], by circumventing statutory provisions[xiv], or by resorting to the multiplicity of proceedings[xv].
SCOPE AND NATURE OF SECTION 151
Since the section does not lay down any guidelines regarding the perusal of these powers, the Courts are often led astray which leads to their misuse. In the recent verdict of K.K. Velusamy[xvi], the Supreme Court enunciated the scope & ambit of the inherent powers under S. 151 of the Code. The Court opined that the section recognizes the discretionary power inherent in every Court as a fundamental corollary for delivering justice as per the law.[xvii] Justice Bhagwati stated that it may not be necessary for a discretionary power to be discriminatory in nature. [xviii] i.e. it depends upon how well those powers are exercised. The Court summarized the scope of S. 151 as “not a substantive provision”[xix] i.e. it doesn’t create or confer any power on Courts. Ram Chand & Sons[xx] case claimed that the Courts can exercise their powers if they don’t conflict or are inconsistent with the other powers conferred in the Code i.e. the scope of S. 151 is “co-extensive with circumstances.”[xxi]
However, if for a particular case, the Code provides a procedural remedy which expressly or by necessary implication exhausts the scope of these powers, then these powers cannot be invoked.[xxii] In short, the Court has no power to go against the law or the Code.[xxiii] A Court is free to exercise these powers which are complementary to the specifically conferred powers in the Code[xxiv] to maintain the orderly administration of the Court’s operations. However, the absence of an express provision in the Code and the recognition and saving of these inherent powers should not be treated as a carte blanche to grant any relief[xxv]. Thereby, the Courts must exercise them with utmost care & circumspection upon their discretion and wisdom.
The concept of inherent powers leaves space for curiosity under civil law while their source and content remain hazy and uncertain. With conceivably compelling consequences on the parties to the case, the exercise of such powers in the civil context merits close scrutiny.
LIMITATIONS ON SECTION 151
Apart from the limitations reflecting from S. 151’s scope, there are a few other barriers that these inherent powers carry. Various judicial interpretations such as UOI v. Ram Charan[xxvi] and Padam Sen v. State of UP [xxvii] have laid out certain principles that limit the exercise of these copiously wide & residuary powers. Courts can exercise these powers only in exceptional cases whilst following the general principle of law; recall its orders to cure its legal mistakes; ‘direct an arbitrator to make an award afresh[xxviii]; can’t take away the substantive rights of the parties.[xxix] Courts cannot invoke these powers for impleading legal representatives on record after the suit is abated or to restrain a party from taking proceedings in a Court of law either.[xxx]
The power under S. 151 can’t be exercised by a party when the remedy for its issue is provided elsewhere in the Code but neglected by the party to avail himself of the same.[xxxi] The provisions of the Code do not constrain the scope of these innate powers, but it shall be presumed that the procedure provided by the Legislature is directed by ends of justice to forestall maltreatment of the process of the Courts. S. 151 has no authority to create a new power of its own but can preserve its power to abide by the two objectives.
NATURE & POWER OF THE TRIBUNALS
Tribunals were established as an efficient mechanism to ameliorate the burden of the judiciary. However, their nature and powers are still debated on a presumption that tribunals are not Courts and therefore can’t possess powers like that of a Court. S. D. Ghatage’s[xxxii]case matched the characteristics of the Courts with that of Tribunals and further clarified that the substantial functions of a legal institution should be the factor deciding if the term ‘Court’ fits the institution best, rather than its nomenclature. Paras Laminates[xxxiii] proved the faultiness of the presumption, the Tribunal is a creature of statute, therefore cannot go beyond it[xxxiv] and clarified that they possess ancillary powers whilst operating within the limits of its provisions. These are ancillary because it is the legislature’s intent to efficaciously exercise the expressly granted powers, not because these are inherent powers.
However, these powers cannot override the general principles of law, like the inherent powers under Section 151.[xxxv] In 2019, the Home Ministry passed a new Foreigner (Tribunals) Amendment Order, allowing all states to have their own Foreign Tribunals to address the question of citizenship of a person.[xxxvi] Under this, Tribunals are granted powers to regulate their own procedure for the disposal of cases i.e. are given a carte blanche of uncertain yet indefinite powers.[xxxvii] Further, making it difficult for the criteria of citizenship by restricting an appeal against detection as foreigner solely to the Tribunals under specific terms and conditions.[xxxviii] It was also made conditional for a Foreign Tribunal to issue a notice of hearing appellants appeal, only if it finds merit in the appeal.[xxxix]
Upon critically analyzing the nature of this amendment, interpreting the word merit seems problematic because it remains ambiguous as to what constitutes ‘merit’. Moreover, in a Foreign Tribunal hearing, unlike other Courts, the burden of proof lies on the appellant whose citizenship is under question. The extremely ambiguous and arbitrary powers increase the probability of erroneous and a biased verdict. It’s a grey area that remains open to interpretation, which might lead to abuse of the process of the Court where no ends of justice would meet.
SUGGESTIONS TO REDUCE THE ABUSE OF DISCRETION
It may be suggested to ensure amenity & fairness in legal proceedings to reduce the abuse of the process of Courts. It may be recommended to the legislative authorities to arrange the rules from various judicial interpretations regarding the application of inherent powers of the Courts synchronously with the restraints on them in the form of rules or guidelines.[xl]
These guidelines, if pre-empted beforehand, must also provide procedural remedies to deal with circumstances that may arise in the future which are not provided for in the Code, yet. These codified rules then must be made desirable to the Courts for their easy and efficient administration. Superior Courts aiding the Lower Courts and Tribunals might help in preserving the intention of S. 151. The Courts must exercise judicial restraint to invoke S. 151 i.e. not just on the ground of sympathy or mere asking. Judges carte blanche must be preserved and they must be permitted to perform their administrative operations freely, without the undue influence of anyone.
These powers must be used to prevent the institution of obstructive tactics and multiplicity of proceedings via the Doctrine of Res Judicata (consolidation of suits). Since the abuse can be practiced by both the Court and the parties to the case, heavy penalties must be instituted for the contempt of Court. Lastly, if the required principles are trailed by the Courts it would make the occupation to focus less troublesome/ confusing as to when these powers ought to be summoned.
Upon examining, the hypothesis clarifies that the inherent powers under Section 151 are not substantive but complementary to the already conferred powers in the Code. Concerning the unerring exercise of these powers, the Courts have summoned them in suitable cases only. However, it cannot be implied that the abuse of the process of the Courts has been contained, but there has been comparatively less abuse due to the active redressal of the same by the Apex and the High Courts.
It is an acknowledged fact that the wide inherent powers granted under Section 151 of the Civil Procedure Code, 1908 are discretionary in nature. Although the key objectives of the Code are to make the judicial processes highly uniform and unbiased, the legitimacy of these powers remains impaired due to the elusive nature of its source. The concept of inherent powers is precedent-based yet remains undeclared in national jurisdiction. With the increasing multifaceted legal issues before the Courts, the coerciveness and uncertainty of its source demand judicial restraint. There must be strong and cogent reasons for exercising these powers to further the need for justice by filling the lacunae in law and preventing the abuse of discretion. In the wake of analyzing various judicial interpretations, it can be said that inherent powers manage to be of utmost importance and demonstrate illustrations that the carefulness and cautiousness of the legislature ought not to be exercised in a discretionary way, therefore leaving no space for curiosity and uncertainty.
[i] P. Sirajuddin v Government of Madras  Mad 117.
[iii] Prof. (Dr.) Mukund Sarda, ‘Inherent Powers of a Civil Court: A Study’ (2020), <http://bvpnlcpune.org/Article/Inherent%20Powers%20of%20a%20Civil%20Court-Prof%20_Dr_%20Mukund%20Sarda.pdf > accessed 26 September 2020.
[iv] Code of Civil Procedure 1908, s 151.
[v] Debendranath v Satya Bala Dass  Cal 217 273.
[vii] Manohar Lal Chopra v. Sheth Harilal  SC 527.
[ix] Martin Burn Ltd. V. R. N. Banerjee  SC 79.
[x] Sunit Kumar Mondal et al., ‘Inherent Powers of the Court under the CPC’ (Academike, 5 February 2015) <https://www.lawctopus.com/academike/inherent-powers-Court-cpc/#_edn2 > accessed 26 September 2020.
[xi] Umangraj, ‘Inherent Powers of the Court’ (Legal Services) <http://www.legalservicesindia.com/article/1736/The-Inherent-Powers-of-the-Court.html > accessed 26 September 2020.
[xii] Sunit Kumar Mondal et al., ‘Inherent Powers of the Court under the CPC’ (Academike, 5 February 2015) <https://www.lawctopus.com/academike/inherent-powers-Court-cpc/#_edn2 > accessed 26 September 2020.
[xiii] Daddu Dayal Mahasabhav. Sukhdev Arya  SCC 189.
[xiv] Manilal Mohanlal v. Sardar Sayed Ahmed  SC 349.
[xv] Nair Service Society Ltd. . K. C. Alexander  SC 1165.
[xvi] K.K. Velusamy v. N. Palanisamy 1 SCC 275.
[xvii] Anoop Singh, ‘A Critical Analysis of Courts Inherent Power Under CPC (1908)’ (Blogspot, April 2016) < http://jurislawchamber.blogspot.com/2016/04/a-critical-analysis-of-Courts-inherent.html?m=1#:~:text=Section%20151%20deals%20with%20saving,the%20process%20of%20the%20Court > accessed 27 September 2020.
[xviii] Kedar Nath Bajoria and Anr. vs The State Of West Bengal  SC 660.
[xix] Anoop Singh, ‘A Critical Analysis of Courts Inherent Power Under CPC (1908)’ (Blogspot, April 2016) <http://jurislawchamber.blogspot.com/2016/04/a-critical-analysis-of-Courts-inherent.html?m=1#:~:text=Section%20151%20deals%20with%20saving,the%20process%20of%20the%20Court > accessed 27 September 2020.
[xx] Ram Chand & Sons Sugar Mills (p) Ltd. v. Kanhaya Lal Bhargava  SC 1899.
[xxi] Anoop Singh, ‘A Critical Analysis of Courts Inherent Power Under CPC (1908)’ (Blogspot, April 2016) <http://jurislawchamber.blogspot.com/2016/04/a-critical-analysis-of-Courts-inherent.html?m=1#:~:text=Section%20151%20deals%20with%20saving,the%20process%20of%20the%20Court > accessed 27 September 2020.
[xxii] Velayudhan Nair v. Kerala Ksheman Yunik Kuries Pvt. Ltd  Ker 223.
[xxiii] ‘Section 151 CPC, Discretionary Powers of a Judge’ (Legal Services) < http://www.legalservicesindia.com/law/article/948/4/Section-151-CPC-Discretionary-powers-a-Judge > accessed 27 September 2020.
[xxv] Anoop Singh, ‘A Critical Analysis of Courts Inherent Power Under CPC (1908)’ (Blogspot, April 2016) < http://jurislawchamber.blogspot.com/2016/04/a-critical-analysis-of-Courts-inherent.html?m=1#:~:text=Section%20151%20deals%20with%20saving,the%20process%20of%20the%20Court > accessed 27September 2020.
[xxvi] UOI v Ram Charan  SC 215 at p. 218.
[xxvii] Padam Sen v State of UP  SC 218 at p. 220.
[xxix] Manohar Lal Chopra v. Sheth Harilal  SC 527.
[xxx] UOI v Ram Charan  SC 215 at p. 218:  3 SCR 467.
[xxxi] Sanranu Dey, ‘Legal Provisions of Section 151 of Code of Civil Procedure, 1908 (C.P.C.), India’ (Share Your Essays) <https://www.shareyouressays.com/knowledge/legal-provisions-of-section-151-of-code-of-civil-procedure-1908-c-p-c-india/114334 > accessed 27 September 2020.
[xxxii] S D Ghatage v. State of Maharashtra  Bom 384.
[xxxiii] UOI v. Paras Laminates  (49) ELT 322 (SC).
[xxxiv] Advocate Rajesh Kumar, ‘Powers of the Tribunal’ (Taxguru, 16 November 2009 ) < https://taxguru.in/excise-duty/powers-of-the-tribunal.html > accessed on 27 September 2020.
[xxxv] CIT v. Anjum M H Ghaswala  SC 4318.
[xxxvi] Aditya Sharma, ‘New MHA Order Allows Creation of Foreigners Tribunals, Gives Them Power to ‘Regulate Own Procedure’’, NEWS18 (India, 10 June 2019).
[xl] Mariya Paliwala, ‘Inherent Powers of the Court Under CPC, 1908’ ( IPleaders, 2 January 2020) < https://blog.ipleaders.in/inherent-powers-of-the-Court/#Limitation > accessed on 27 September 2020.