Supreme Court of India
Forward Construction Co. & Ors. ... vs Prabhat Mandal (Regd.) Andheri & ... on 26 November, 1985
But it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words "public right" have been added in Explanation VI in view of the new s.91 C.P.C. and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI it cannot be disputed that s. 11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be a bonafide litigation in respect of a right which is common and is agitated in common with others.
Supreme Court of India
Narayana Prabhu Venkateswara ... vs Narayan Prabhu Krishna Prabhu & ... on 19 January, 1977
In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others". Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied.
Supreme Court of India
Sunderabai W/O Devrao Deshpande ... vs Devaji Shankar Deshpande on 3 October, 1952
Estoppel is a rule of evidence and the general rule is enacted in section 115 of the Evidence Act, which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. This is the rule of estoppel by conduct as distinguished from an estoppel by record which constitutes the bar of 'res judicata'.
"It is true that 'litigating under the same title' has generally been interpreted to mean 'in the same capacity' where it was held that where the right claimed in both suits is the same the subsequent suit would be barred as 'res judicata' though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as 'res judicata' even though the property was identical.
The bar of 'res judicata' however, may not in terms be applicable in the present case, as the decree passed in suit No. 291 of 1937 was a decree in terms of the compromise. The terms of section 11 of the Civil Procedure Code would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide : the commentary of Sir Dinshaw Mulla on section 11 of the Civil Procedure Code at page 84 of the 11th Edition under the caption 'Consent decree and estoppel' :
"The present section does not apply in terms to consent decrees : for it cannot be said in the cases of such decres that the matters in issue between the parties 'have been heard & finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as 'res judicata' as a decree passed 'in invitum'. It raises an estoppel as much as a decree passed 'in invitum."
Supreme Court of India
Sulochana Amma vs Narayanan Nair on 24 September, 1993
In Gulam Abbas v. State of U.P.9 this Court held that the principle of res judicata though technical in nature, is founded on considerations of public policy. The technical aspect, for instance, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or to grant reliefs sought in the subsequent litigation, should be immaterial when the general doctrine of res judicata is to be invoked. Explanation VIII, inserted by the Amending Act of 1976, was Intended to serve this purpose and to clarify this position. It, therefore, has to be held that the decree of the District Munsif, though of limited pecuniary jurisdiction, would operate as res judicata in the subsequent suit between the same parties.
The Calcutta High Court took a very narrow view limiting the scope of Explanation VIII to the decisions of the courts of special jurisdiction like probate, insolvency, land acquisition courts, Rent Controller, Land Revenue Tribunal etc. The Kerala, Orissa and Madras High Courts have taken a broader view, which view now stands approved by this Court in the aforesaid decision. Take an instance, if the scope of Explanation VIII is confined to the order and decree of an insolvency court, the scope of enlarging Explanation VIII would be defeated and the decree of civil courts of limited pecuniary jurisdiction shall stand excluded, while that of the former would be attracted. Such an anomalous situation must be avoided. The tribunal whose decisions were not operating as res judicata, would be brought within the ambit of Section 11, while the decree of the civil court of limited pecuniary Jurisdiction which is accustomed to the doctrine of res judicata, shall stand excluded from its operation. Take for instance, now the decree of a Rent Controller shall operate as res judicata, but a decree of a District Munsif (Civil Judge) Junior Division, according to the stand of the appellant, will not operate as res judicata, though the same officer might have decided both the cases. To keep the litigation unending, successive suits could be filed in the first instance in the court of limited pecuniary jurisdiction and later in a court of higher jurisdiction, and the same issue shall be subject of trial again, leading to conflict of decisions. It is obvious from the objects underlying Explanation VIII, that by operation of the non-obstante clause finality is attached to a decree of civil court of limited pecuniary jurisdiction also to put an end to the vexatious litigation and to accord conclusiveness to the issue tried by a competent court, when the same issue is directly and substantially in issue in a later suit between the same parties or their privies by operation of Section 11. The parties are precluded from raising once over the same issue for trial.
It is settled law that explanation to a section is not a substantive provision by itself. It is entitled to explain the meaning of the words contained in the section or clarify certain ambiguities or clear them up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. Sometimes it would be added to include something within it or to exclude from the ambit of the main provision or some condition or words occurring in it. Therefore, the explanation normally should be so read as to harmonise with and to clear up any ambiguity in the same section.
Supreme Court of India
The Church Of South India trust ... vs The Telugu Church Council on 10 January, 1996
. We are, therefore, of the opinion that Section 11 of the present Code [excluding Explanation VIII] envisages that the judgment in a former suit would operate as a res judicata if the court which decided the said suit was competent to try the same by virtue of its pecuniary jurisdiction and the subject-matter to try the subsequent suit and that it is not necessary that the said court should have had territorial jurisdiction to decide the subsequent suit.
In Daryao v. State of UP Apex Court had again dealt with the question of the applicability of the principle of res judicata in writ proceedings. The matter was gone. through very exhaustively and the final conclusions are to be found at p. 592. We may summarise them thus :
1. If a petition under art. 226 is considered on the merits as a contested matter and is dismissed, the decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution.
2. It would not be open to a party to ignore the said judgment and move this Court under art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.
3. If the petition under art. 226 in a High Court is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that
the party had an alternative remedy available to it, the dismissal of the writ petition would not constitute a bar to a subsequent petition under art. 32.
4. Such a dismissal may however constitute a bar to a subsequent application under art. 32 where and if the facts thus found by the High Court be themselves relevant even under art. 32.
5. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend on the nature of the order. If the order is on the merits, it would be a bar.
6. If the petition is dismissed in limine without a speaking order, such dismissal cannot be treated as creating a bar of res judicata.
7. If the petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under art. 32 because, in such a case, there had been no decision on the merits by the Court.
In arriving at the above quoted conclusions the Court made certain observations which are helpful in determining the question in this case about the decision on a writ petition operating as res judicata in a subsequent regular suit. The basis for the rule is described thus at p. 582 :
Supreme Court of India
Gulabchand Chhotalal Parikh vs State Of Bombay (Now Gujarat) on 14 December, 1964
"But, is the rule of res judicata merely a technical rule or is it based on high public policy ? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in s. 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation."
Supreme Court of India
Devilal Modi, Proprietor, M/S. ... vs Sales Tax Officer, Ratlam And ... on 7 October, 1964
As we have already mentioned, though the courts dealing with the questions of the infringement of fundamental rights must consistently endeavor to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them, must receive due consideration.
The present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case the appellant sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the Writ petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court had decided against him on the merits of those points, he has come to this Court; but that is not all. At the hearing of this appeal, he has filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That' clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata.
Supreme Court of India
Ghulam Sarwar vs Union Of India & Ors on 15 December, 1966
On the question of res judicata, the English and the American Courts agreed that the principle of res judicata is not applicable to a writ of habeas corpus. Apex court recognized that res judicata does not apply in case of habeas corpus petitions.
Supreme Court of India
Srikant vs District Magistrate, Bijapur & ... on 22 November, 2006
"The principle of application of res judicata is not applicable in Writ of Habeas Corpus, so far as High Courts are concerned. The principles accepted by the English and American Courts, viz., that res judicata is not applicable in Writ of Habeas Corpus holds good. But unlike in England, in India the person detained can file original petition for enforcement of his fundamental right to liberty before a Court other than the High Court, viz., the Supreme Court. The order of the High Court in such a case will not be res judicata as held by the English and the American Courts because it is either not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order."
The principle which can be culled out from this authorities is that the bar of res judicata or constructive res judicata would apply even to a petition under Article 32 of the Constitution where a similar petition seeking the same relief has been filed under Article 226 of the Constitution before the High Court and the decision rendered against the petitioner therein has not been challenged by filing an appeal in the Supreme Court and has been allowed to become final. However, this principle, namely, the bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty. If a person under detention files a writ of habeas corpus under Article 226 of the Constitution before the High Court and the writ petition is dismissed (whether by a detailed order after considering the case on merits or by a non- speaking order) and the said decision is not challenged by preferring a Special Leave Petition under Article 136 of the Constitution and is allowed to become final, it would still be open to him to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus.
In Nazul Ali Molla etc. v. State of West Bengal (1969 (3) SCC 698) the petitioners had challenged their detention under Section 3 (2) of the Preventive Detention Act by filing a writ petition under Article 226 of the Constitution before the Calcutta High Court, but the petition was dismissed. Thereafter they filed a writ petition under Article 32 of the Constitution in Apex Court. The objections raised by the State regarding maintainability of the petition was repelled and it was held that a petition under Article 32 of the Constitution for the issue of writ of habeas corpus would not be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decided and no appeal is brought up to the Supreme Court against that decision. Similar view has been taken in Niranjan Singh v. State of Madhya Pradesh (1972 (2) SCC 542).
Supreme Court of India
Workmen Of Cochin Port Trust vs Board Of Trustees Of The Cochin ... on 5 May, 1978
Two situations, namely, (1) disposal of the writ application on merits and (2) its dismissal not on merits but on the ground of Laches of the party or the availability of an alternative remedy, enabled us to state what we have said above. The, dismissal of a writ petition in limine with a reasoned order may or may not constitute a It will depend upon the nature of the order. "If the petition is dismissed in limine", says the learned Judge, "without passing a
speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence. of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32." We have thought it proper to elucidate this aspect of the matter a bit further to indicate that dismissal of a writ petition in limine by a non speaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause of action.
EXCEPTION TO RES JUDICATA:
1.Judgment in original suit obtained by the fraud – if a court thinks that the judgment of former suit is obtained by the fraud, then the doctrine of the res judicata is not applied.
2.When previous SLP is dismissed without a speaking order– When special leave petition is dismissed without adjudication or decision then res judicata should not be applied. For obtaining Doctrine of Res Judicata, the formal suit should be decided finally by the competent court.
3.A different cause of action – Section 11 will not be applied when there is a different cause of action in the subsequent suits. The court cannot bar a subsequent suit if it contains the different cause of action.
4.When there is Interlocutory Order – Interlocutory order is the interim order, decree or sentence passed by the court. A principle of the Res Judicata will be not applied when an interlocutory order is passed on the former suit. It is because in Interlocutory order immediate relief is given to the parties and it can be altered by subsequent application and there is no finality of the decision.
5.Waiver of a decree of Res Judicata – Decree of Res Judicata is a plea in the bar which party must waive. If a party did not raise the plea of res judicata then the matter will be decided against him. It is the duty of an opposite party to make the court aware about the adjudication of matter in former suit. If a party fails to do so, the matter is decided against him.
6.Court not competent to decide – When the former suit is decided by the court who has no jurisdiction to decide the matter then the doctrine of res judicata is not applied to the subsequent suit.
7.When there is a change in Law or circumstances – When there is a change in the law and new laws bring new rights to the parties then such rights are not barred by Section 11.
8.Habeas Corpus Petitions
Supreme Court of India
Raju Ramsing Vasave vs Mahesh Deorao Bhivapurkar & Ors on 29 August, 2008
Two legal principles which would govern a case of this nature, are:
(i) A decision rendered without jurisdiction being a nullity, the principle of res judicata shall not apply.
(ii) If a fraud has been committed on the court, no benefit therefrom can be claimed on the basis of thereof or otherwise.
In support of the first principle, we may at the outset refer to Chief Justice of Andhra Pradesh and Others v. L.V.A. Dixitulu [(1979) 2 SCC 34] wherein this Court, while discussing the effect of Section 11 of the CPC on a pure question of law or a decision given by a court without jurisdiction, opined:
"Moreover, this is a pure question of law depending upon the interpretation of Article 371D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case."
A Three - Judge Bench of this Court in Ashok Leyland Ltd. v.
State of Tamil Nadu and Anr. [(2004)3SCC1], held:
"120. The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata."
[See also Dwarka Prasad Agarwal (D) By LRs. and Anr. v. B.D.
Agarwal and Ors. ( 2003 ) 6 SCC 230, Union of India v. Pramod Gupta (2005) 12 SCC 1 and National Institute of Technology and Ors. v. Niraj Kumar Singh (2007) 2 SCC 481]
25. So far as the second principle, noticed by us, is concerned, there is no dearth of authority.
Fraud vitiates all solemn acts. When an order has been obtained by practising fraud on the court, it would be a nullity.
In Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Ors. [(2008) 3 SCC 556], this Court held:
"It is now a well settled principle that fraud vitiates all solemn acts. If an order is obtained by reason of commission of fraud, even the principles of natural justice are not required to be complied with for setting aside the same."
It was further observed:
"In T. Vijendradas and Anr. v. M. Subramanian and Ors., this Court held;
21. ...When a fraud is practiced on a court, the same is rendered a nullity. In a case of nullity, even the principles of natural justice are not required to be complied with. [Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar Das and Ors. & A. Umarani v. Registrar, Cooperative societies and Ors.]
22. Once it is held that by reason of commission of a fraud, a decree is rendered to be void rendering all subsequent proceedings taken pursuant thereto also nullity, in our opinion, it would be wholly inequitable to confer a benefit on a party, who is a beneficiary thereunder...."
In K.D. Sharma v. Steel Authority of India Ltd. and Ors. [2008 (10) SCALE 227], this Court opined:
"16. Reference was also made to a recent decision of this Court in A.V. Papayya Sastry and Ors. v. Govt. of A.P. and Ors. (2007) 4 SCC 221. Considering English and Indian cases, one of us (C.K. Thakker, J.) stated:
It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order --by the first Court or by the final Court-- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.
The Court defined fraud as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam."
In Allahabad Development Authority v. Nasiruzzaman (1996) 6 SCC 424, this Court held that when the previous decision was found to be erroneous on its face, such judgment cannot operate as res judicata, as to give effect to such judgment would be to counter a statutory prohibition. On the facts of that case, it was held that in a land acquisition case, after vesting has taken place in favour of the State, obviously, the lapse of a notification under Section 6 of the Land Acquisition Act, 1894 could not possibly arise.
In Shakuntla Devi v. Kamla (2005) 5 SCC 390, this Court held that in view of the changed position in law consequent to a contrary interpretation put on Section 14 of the Hindu Succession Act, 1956 by V.Tulasamma vs. V.Sesha Reddy (1977) 3 SCC 99, the earlier decree based on judgments that were overruled cannot operate as res judicata. This is in consonance with the law laid down by this Court in Nand Kishore (supra).
32. Since Mathura Prasad (supra) followed the Full Bench judgment of the Calcutta High Court in Tarini Charan Bhattacharjee and others v. Kedar Nath Haldar, AIR 1928 Calcutta 777 (at 781-782), it is important to set out what the Full Bench said in answer to the question posed by it – namely, whether an erroneous decision on a pure question of law operates as res judicata in a subsequent suit where the same question is raised. The answer given by the Full Bench is in four propositions set out hereinbelow:
“(1) The question whether the decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances, the Court shall not try a suit or issue, but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances, it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and give effect to it or not accordingly, as it conceives the previous decision to be right or wrong. To say as a result of such disorderly procedure that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that, therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party.
The law in regard to res judicata and constructive res judicata has been the subject of judicial scrutiny now for long. With the passage of time, various principles have been enunciated in regard to the application of these doctrines. The Indian law codifies both these doctrines where they do form part of the procedural law while in other countries it is covered even under the common law. To aptly apply the various principles that have emerged with the passage of time, it is necessary for us to recapitulate the stated principles, which are as follows:
(i) Constructive res judicata is a special, technical and artificial form of res judicata enacted by Section 11.
(ii) Explanation IV to Section 11 obliges the plaintiff or the defendant to take all the grounds of attack or defence by putting forward his whole case in the former suit.
(iii) No distinction can be made between the claim that was actually made and the claim that might and ought to have been made a ground of attack or defence.
(iv) A matter which "might and ought" to have been made a ground of attack or defence shall be deemed to be a matter directly and substantially in issue constructively.
(v) The words "directly and substantially in issue" apply to both the "suit" as well as the "issue".
(vi) The terms "might" and "ought" are of wide amplitude and hence all the grounds of attack or defence even if they could be taken in alternative, should be taken in the former suit.
(vii) A plea which was not in existence, or was not within the knowledge of the party or could not be raised or was so dissimilar which might lead to confusion, cannot be said to be one which "might and ought" to have been raised.
(viii) The word "and" between the words "might" and "ought"
must be read as conjunctive and not disjunctive.
(ix) The word "might" conveys knowledge on the part of the party affected about the existence of ground of attack or defence. Whether or not the party has such knowledge is a question of fact.
(x) Whether a particular might "ought" to have been made a ground of attack or defence depends upon the facts and circumstances of each case.
(xi) The doctrine of constructive res judicata applies to writ petitions filed under Article 32 or Article 226 of the Constitution. It, however, does not apply to a writ of habeas corpus.
(Ref.: Thakker C.K., Code of Civil Procedure, Vol. I, Pg. 168)
From the analysis of the above principles, it is clear that the rule of res judicata is mandatory in its application and should be invoked in the interest of public policy and finality. The matter which have actually been decided would also apply to the matters which have been impliedly and constructively decided by the Court. These principles are to be applied to preserve the doctrine of finality rather than frustrate the same. The doctrine of res judicata is the combined result of public policy so as to prevent repeated taxing of a person to litigation. It is primarily founded on the following three maxims:
(1) nemo debet bis vexari pro una et eadem causa: no man should be vexed twice for the same cause.
(2) interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation; and (3) res judicata pro veritate occipitur: a judicial decision must be accepted as correct.
As discussed, the principle of res judicata or constructive res judicata found in Section 11 and Explanation IV to Section 11 of the Code of Civil Procedure is applicable to judgment in rem. The principle of res judicata applies even to public interest litigation initiated under Article 226 of the Constitution of India even though such proceedings are not governed by the Code of Civil Procedure. If a specific question was not raised and ought not to have been decided in an earlier proceedings by the Court in given circumstances, it may not debar a party to agitate the same at an appropriate stage but certainly subject to the applicability of the principles of res judicata or constructive res judicata (Refer : State of Haryana and Ors. v. M.P. Mohla, (2007) 1 SCC 457). The doctrine of res judicata is conceived not only in the larger public interest which requires that all litigation must sooner than later come to an end but is also founded on equity, justice and good conscience. The rule of conclusiveness of judgments equally supports application of the principle of res judicata. Once its ingredients are satisfied, then it must apply with its rigours, object being that a litigation must come to an end (Refer: Swami Atmandanda v. Sri Ramakrishna Tapovanam (2005) 10 SCC 51). In Daryao v. State of Uttar Pradesh AIR 1961 SC 1457, the Supreme Court while placing the doctrine of res judicata on a high pedestal, treating it as a part of the rule of law, held:
"The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis."