Round the Wheel

(D. Vijayaraghavan, Judicial Magistrate)

'Your Honour," the defence counsel pleaded, "this is not that cruel and cold-blooded murder, but a case of inheritance; he has inherited that extra 'Y' chromosome from his father's abnormal sperm."

The Judge calmly pronounced "The accused be institutionalised!"

Such is the progress achieved by western lawyers and courts in the trial and verdict on a criminal. And, then as I was collecting a packet of insecticide to eradicate the evil of bug-bite from my chair in the Court hall, the figure of that Pw-6 just shadowed in my vision. He was put in the box by the prosecution at a time when I by virtue of inherent power was using criminal force in the table fan, the origin of which is unknown, but peeping into my left ear and crying like a Municipal Siren. Majestic as it was, an antique art it rotates with the earth but no revolution since the coming into force of the Medical termination of Pregnancy Act. The clock on the wall, a similar celestial object with a recalcitrant tongue strikes always twelve when it was one or six. Once it was remanded for repair. On its return it became so arrogant that its striking became a terror to the poor widowed destitutes flocked at the windows under S. 125 CrI. PC. Applying the doctrine of eclipse in constitutional law a further remand was granted. On its reappearance the dial letters turned Babiloniyan script and at present to read it the following rules of interpretation applied. Obvious and popular sense of the letter should be followed as a general rule. The letter should be construed in a manner which would suppress the mischief, advance the remedy, promote its object and prevent its subtle evasion and foil its artful circumvention.

Taking in the air around the courthall pure to breathe, an admixture of smoke and dust supplied free of cost by the adjacent tea shop and the Government bus stand, Pw6 was to prove a mahazar in a case of carnal intercourse against the order of nature. A towel worn by the child at the time when she was molested by the accused was seized by police under a recovery mahazar attested by Pw-6 It was smeared with semen was the case of the police. Although several elders were present at the time of recovery, Pw6, a Pre Degree student was chosen to be the attestor. "Your honour, that is investigating wisdom! Noneelse could be the apt witness to identify semen and this the police knew," the prosecutor would have argued. But Pw-6 facing the Lady Medical Officer sitting by the side proclaimed" “alÊÀ FgpXnb tXmÀ¯n Rm³ IIp”. Asked the inquisitive prosecutor “F´p IIp?” “AXv IIp” “GXv?” The pressing demand. “{]Xn-bpsS _oPw” was the answer. The Medical Officer astonished, reflected over her certificate whether she went wrong. The prosecutor hearing the cracking noise of the back rest of the wooden bench caused accidentally by the pressure exerted by an advocate clerk calmly resumed his seat.

The Supreme Court in Kunju Kunju Janardanan's case (1979 Crl. L. J. S. C. 820) had occasion to comment upon this extra 'Y' chromosome. Perhaps the first in Indian Judgments! His Lordship appears to have suggested willing castration as a mode of punishment. The great literary genius Oscar Wilde in Prison was quoted by the Supreme Court in 1978 Crl. LJ. SC. 1762, viewing cellular isolation from a human angle.

Wilde must now be considered as a Pathological case study "There is the question of heredity and early environment. He was the child of parents of marked eccentricity as well as of exceptional ability. Sir William Wilde was a man of abnormal sexual drive. He was a notorious runner after women, by whom he had sundry illegitimate offspring, and he figured in a sensational “trial in Dublin in which he was accused of having violated a woman patient in his surgery, having first put her under the influence of Chloroform. Have Lock Ellis has expressed the opinion that homosexual germs were latent in Wilde's constitution by descent: While an under-graduate at Oxford he contracted syphilis probably with a prostitute. Besides the professional prostitute at Oxford he had connections of this kind in Paris, New York and London. Before proposing to his wife, Wilde consulted a doctor who had assured him complete cure of his youthful malady. On the strength of this assurance he got married. But about two years later he discovered that all traces of Syphilis had not been eradicated; on the contrary, the spirochetes were quite active. It was this unpleasant discovery which obliged him to discontinue physical relations with his wife. In the result, inter alia, he turned towards homosexuality. Prominent homosexual characters in history began to attract him. If Wilde had been content to confine his homosexual relations to Robert Ross, and even to Lord Alfred Doughlas, it is extremely unlikely that his conduct in this respect would ever have come to the notice of the Director of Public Prosecutions Unfortunately for him, he made the fatal mistake of extending the range of his homosexual acquaintances to such individuals as a groom, an unemployed clerk, a newspaper boy, also a youth who worked in his publisher's office.

Voluntary castration was then not in the contemplation of English Judges and so Wilde was sent to prison to sing 'A great river of Life flows between me and a date so distant-----For us there is only one Season, the Season of Sorrow-----"

Transcendental meditation was suggested as a curative process in the case of such pathological criminals. (1977 Crl.L.J. S.C. 1927 and 1980 Crl.L J. S.C. 9) What then will be the reaction of the extra 'Y' chromosome to this remedial (ideal?) brain therapy?

Traversing by the epics, Vasishta, Viswamitra, Kapila and Gouthama, all in the wilderness of the woods were great meditators. They brought down Brahma and all the Gods from Heaven and obtained boons. All the senses were captives before their realised wisdom But not long afterwards that the senses overpowered them and they uttered their curses. Even Indra who had direct access before Gods approached Ahalya for urgent solicitation.

Oscar, a willing party to castration! A castrated Oscar is most unwelcome in the London Society. Will the ladies in the London club exhibit that degree of regard which they had shown to him? This is not doing justice either to Oscar or the London Society. T. M or transcendental meditation is known as the science of creative intelligence. Can one say that Wilde was devoid of creative intelligence? Was it not that 'Y' chromosome which played the prominent role in his creative works acclaimed by the world? Who knows Janardanan castrated will not turn a lunatic? Who knows Janardanan in T.M. will not infatuate more fanciful lovers?

Sage Gauthama had his curse on Ahalya "Thou shall lie here unseen"! Thus she lay there under solitary confinement for a long period and she was released and purified only at the time of Rama Avathar. Even Rama, the Purushothama touched her feet as she emerged from her long term incarceration. On the other hand, after his release from prison Oscar was to resume his homosexual practice, with less discrimination than ever in the choice of associates, and, as is now generally known, they continued until the time of his final illness in the year 1900.

Punitive Philosophy, whether deterrent or reformative is the province of God. Judging the criminal with human imperfections is a dual in the Sun. After all, elimination is an inevitable concomitant of natural evolution. How horrific was the mass annihilation of fishes in that great drought? Only the fittest survived. The outcome was the evolution of the vacuum bladder into a truncated lung system resulting in the creation of amphibians. How terrific was the mass death among the monkeys in that great tempest and havoc when they were driven away from the top of the trees where they lived and slept by hanging with the tail and head downward? It was the havoc causing the death of many a monkeys that paved the way for monkeys to walk on legs and eventually to the evolution of man. The great heart of nature beats, its throbbing stimulates the pulse of life and she alone knows the purpose and meaning of both creation and" extinction. A reformist, if at all desirable is born in that pulse of life and not otherwise, once in a way as Jesus, Budha or Gandhiji. Thus we see the 'Nature' of individual elimination incidental to social evolution.

Chanting on penological justice is also a dual in the Sun. It is said that a long term sentence on a husband is hot doing justice to the wife deprived of her right to sexual intercourse. But the same sense of justice we do not even think about in the case of the wife whose husband is murdered by the former. It may be said that the later wife can remarry. Well and good, if it so happens! Janardhanan castrated is doing justice to his real wife? "Indeed, victim reparation is still the vanishing point of our criminal law" (1980 Crl. LJ. SC. 12.)

Who invented the first wheel cart? The Sumarians. It was the stepping stone to the great march towards civilization. Who now injects and interposes the Rubber Wheels? The Society in a Bandh or other agitation. The invaders of the great invention! Social justice demands their elimination. Justice individual requires their reformation based on heredity, pathology, meteorology, ecology or environment.

What is justice? "No other question has been discussed so passionately; No other question has caused so much precious blood and so many bitter tears to be shed; No other question has been the object of so much intensive thinking by the most illustrious from Plato to Kant; and yet, this question is to-day as unanswered as it ever was." 1978 Crl. L. J. SC. 1529.

And what is Social Justice? "If it could be possible for Confusius, Manu, Hammurab, and Solomon to meet together at a conference table, I doubt whether they would be able to evolve agreed formulae as to what constitutes Social Justice, which is a very controversial field—" 1979 Crl. L. J S. C. 809.

Ringing in my ears the words of H. Barnes "Society has been unfortunate in handing over criminals to Lawyers and Judges in the past as it once was in entrusting medicine to Shamans and Astrologers and Surgery to Barbers."

The Holy Qur'an provides:—

"...............If a husband divorces his wife (irrevocably) he cannot, after that, remarry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by God., Such are the limits ordained by God, which He makes plain to those who understand". (Chapter II, Verse 230).

One of the traditions cited in "Sahih Muslim", Imam Muslim's compilation of the traditions, dealing with this subject is quoted below:—

"Aisha (Allah be pleased with her) reported: A person divorced his wife by three pronouncements, then another person married her and he also divorced ber without having sexual intercourse with her. Then the first husband of her intended to remarry her......about such a case............Allah's Messenger (may peace be upon him)............ 1. said: Nountil the Second one has tasted her sweetness as the first one had tasted": (See "The Book of Marriage" in "Sahih Muslim").

Moulana Abdul Hamid Siddiqi in his English commentary on "SAHIH MUSLIM" explains the scope of these traditions as follows:—

"In these AHADITH we find a burial of the un-Islamic practice in regard to conjugal relationship. It was a sort of custom with the Pre-Islamic Arabia that they in order to torture their wives discarded them and took them back at their will.......Islam gave a death blow to this evil by imposing a limit on the right of the husband to divorcehis wife.........It means that divorce is not a plaything but something very serious; and thus no one is allowed to disturb the conjugal relations on whim and caprice. The husband should think hundred and one times before making the final decision and even the period allowed to him for decision is fairly long extending over three months. If, however, the parties agree to part with each other for the third time, then it is an irrevocable parting............Then there are very remote chances of the resumption of conjugal rights. The only chance is that the Second marriage also proves a failure and the second husband, out of his own will and not under presure, divorces the wife and the first husband with the willingness of his former wife is prepared to marry her again. Shah Waliullah, while explaining the significance of this injunction, has stated that the idea behind this command is that people should not take the institution of marriage and divorce as a mere plaything. They should be fully aware of their responsibilities in these important matters of life": (See Volume 2, Page 730; also K. P. Saksena 'Muslim Law" 4th Edition, P. 190).

A second marriage in violation of the above injunctions is void under Shiite law. The two disciples of Imam Abu Haneefa: Imam Abu Yusuf and Imam Abu Muhammad and also Imam Shafie also hold that such a marriage contract is void: (See Charles Hamilton: "The Hedaya", 1979 Edition P. 108). Thus, the parties who contract such marriages are guilty of fornication.

It is not clear from the reported decision whether the parties in Khadissa's Case are Shafies or Hanafies.

Even if the parties are Hanafies and Imam Abu Haneefa has observed that such marriages are irregular; not void, the courts have a discretion to follow the opinion of Imam Abu Yusuf and Imam Muhammad (See Tyabji, P. 38); and in the light of the prohibitory injunctions of the Holy Qur'an and the traditions and the circumstances under which those injunctions were revealed it is to be found that their opinion is correct and hence that should be followed.

It is unfortunate that the above aspects of the Islamic Law were not brought to the notice of the learned Justice.

The learned Justice has also made certain passing remarks in the judgment on standards of morality:—

"As for immorality, what is immoral has to be judged by the current standards of morality of the community. What was apparently regarded with pious horror in good old days would "today hardly draw a raised eyebrow or even a gentle tut-tut. The wife in this case had at no time a husband other than the respondent. I do but whether in the present day Indian Muslim Society such a woman who was her previous husband and who has married her a Second time can on account of such cohabitation be said to be immoral merely because the Second marriage is technically invalid in the eye of law. I am conscious that by leaving that matter at that, I am leaving it unsolved and open for discussion in the future, but that is inevitable in the development of law".

It is submitted with respect, that these remarks create an impression "that the Muslim community of the present time has restored the sex relations of the Pre-Islamic Arabia. It must be remembered that any standard of morality that is against the injunction of the Holy Qur'an and the traditions will be rejected outright by the Muslim Community. The learned Justice has not properly appreciated the Islamic conception of morality. "The sacred law of Islam as pointed out by JOSEPH SCHACHT in his book, "An introduction to Islamic Law" in Page 1. is an all-embracing body of religious duties, the totality of Allah's commands that regulate the life of every Muslim in all its aspects". The Muslims believe that the Holy Qur'an. in its 114 Chapters, embodies the final expression of God's will and purpose for man. The standard of morality of the Muslim community is an integral part of the religion and as such the question of change or reform does not arise at all.

As regards the second question, it was contended by the husband that since the second marriage was invalid, then the husband by such second marriage was no better than a stranger and so the wife had to be taken as having led an immoral life when she lived with him for about four months after the first divorce and the child begotten during that period had to be taken as illegitimate. It was, therefore, argued that the woman was not entitled to claim maintenance under Sub-section (4) of S. 125 of the Criminal Procedure Code.

"Chapter IX of the Code, which contains Ss. 125 to 128, deals with order for maintenance of wives, children and parents. Explanation (b) to S. 125(1) provides that for the purpose of this chapter "wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. It is by virtue of this explanation that an ex-wife is entitled to claim maintenance from her erstwhile husband."

Under sub-sections (4) &(5) of S. 125 a wife who is living in "adultery" is not entitled to claim maintenance. Explanation (b) shall be regarded as a part of these Sub-sections also, since the language used in the statute is clear and unambigous, and therefore, on proof that an ex-wife is leading an immoral life her claim for maintenance is to be disallowed. This was the view taken by a Division Bench of the High Court, speaking through Khalid, J. in Kunhi Moyin v. Pathumma, 1976 KLT. 87. But, this decision has been overruled in Mariyumma v. Mohammed 1978 KLT. 573. The Full Bench, speaking through Mr. Justice P. Subramonian Poti, relying on the word "adultery" used in Sub-Ss. (4) and (5) of S. 125 held that the above Explanation is not applicable to those Sub-sections and so, the fact that an ex-wife is living in immorality is no ground for refusing maintenance from heir erstwhile husband. The learned Justices observe".....................A woman whose marital tie does not subsist cannot be guilty of adultery, for, adultery is a term that denotes an offence against the institution of marriage. The inclusive definition of the term "wife" will not be sufficient to read promiscuous or immoral living of a divorced woman as of one living in adultery".

This decision was followed in Khadissa's case in which it is held as follows:-"...............Maintenance was disallowed to the wife on account of her leading an immoral life. The Judge in doing that had evidently the provision in S. 125(4) of the Code in view For the provision to apply the wife should be living in adultery. If the second marriage was invalid then after the dissolution of the first marriage the wife should be taken as not having a husband at the time and her cohabitation with any man during that period cannot be termed adultery, as held in Mariyumma v. Mohammed Ibrahim, 1978 KLT. 573. So the Provision in S. 125(4) cannot be applied for refusing maintenance to the wife."

It is submitted, with respect, that the above decisions are not correct. In view of Explanation (b) to S. 125(1) the word "adultery" used in Subsections (4) and (5), in so far as they apply to ex-wives, has to be given a modified meaning. Maxwell observes:—"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning:" (Maxwell on the Interpretation of Statutes, 12th Edition P. 228).

In the light of the Explanation (b), the meaning of the words used in sub-sections (4) and (5) of S. 125 has to be modified to the effect that no woman who has been divorced by, or has obtained a divorce from her husband, and has not remarried, shall be entitled to receive an allowance from her erstwhile husband, if she is living in unlawful sexual relation and on proof that any such woman in whose favour an order has been made under the Section is living in unlawful sexual relation, the Magistrate shall cancel the order. If this was not the intention of the legislature, the words "for the purpose of this Chapter" would not have been inserted in the Section. When judged by the above submissions, the wife in Khadissa v Muhammed, who is guilty of fornication, is not entitled to any maintenance. It is absurd to believe that the Legislature would have intended to give protection to such women by enacting S. 125.

It is most respectfuly submitted that the above decisions require reconsideration.

Maintenance to Muslim Divorcees

(T.M. Abdullah, Advocate, Tellicherry)

The Supreme Court after Bai Thahira's case (AIR. 1979 SC. 1362) ruling that if the amount of 'mahar' paid is insufficient to serve as the money equivalent to post-divorce maintenance till death or remarriage, it is no answer to the liability for such maintenance, has reiterated the same principle in another case. The implication is that if it is sufficient, the ex-husband gets absolved from the said liability under S. 127(3)(b) Cr. P. C.

It is submitted with respect that the Supreme Court misses the cardinal differences between mahar and maintenance in their concept and incidence. Mahar is consideration for acquisition of the wife while maintenance is consideration for continuance of wifely duties to the husband. 'Mahar' in pre-Islamic days was a sale price for the chattel of a girl which her male parent was entitled to receive. Islam transformed it as an ex-gratia present for the companion which the girl herself was entitled to receive. Its incidence is at the inception of the contract of marriage though it is payable at any time during coverture or at the time of or after divorce. 'Mahar' is contractual; maintenance during covertures is sociological; maintenance after divorce is humanitarian in concept. 'Mahar' is not one necessarily payable on divorce; it does not arise on divorce either.

What S. 127(3) (b) provides is a sum which, under customary or personal law is payable on divorce What the provision envisages is some sort of alimony or compensation which is payable on divorce as Khalid J. of the Kerala High Court bad held in 1976 KLT. 87 (Kunhji Moyin v. Pathumma). The full Bench of the Kerala High Court in 1979 KLT. 5 Vasantha Kumari v. Sadasivan, it is submitted, errs in over-ruling Justice Khalid's decision as the Full Bench dealt with a case of Ezhavas under the Travancore Ezhava Act which provides compensation payable on dissolution of marriage, unlike 'mahar' which is payable not necessarily on divorce.

The idea underlying 'idda' maintenance is subsistence for a testing period for pregnancy; it is not a compensation for destitution. Ch. II, Verse 241 of the Holy Quran enjoins a handsome provision of means for wife while separating. This is different from 'mahar' and 'idda' maintenance. This salutory quranic command is not generally followed by Muslims. This provision can be pressed into service while interpreting what is payable on divorce in S. 127(3)(b) Cr. P. C.

A view that projects from Bai Thahira's case that whatever the nomenclature of the payment, whether 'mahar' or maintenance, the amount must be sufficient to serve to support the post-divorce life of the ex-wife may be a pragmatic one; but the two are different rights and one cannot replace the other, nor strictly accord with S. 127(3)(b) Cr. P. C.

Justice V.P. Gopalan Nambiyar

(K.S. Rajamony)

The best tribute to a retiring Judge will be to hold a mirror to the judgements he has handed down during the tenure of his office and to make an objective assessment of his contribution to juristic thought and the growth of the law. It is difficult to evaluate the contribution of Justice Nambiyar objectively in such close proximity to his retirement. The difficulty is aggravated by the fact that he dominated the judicial stage for 15 years and has delivered innumerable judgements in all branches of law. What is possible is only to select a few of his judgements which are indicative of his judicial attitudes and qualities The present day Indian judges are working under various handicaps. They function in courts overloaded with work, painfully conscious of the mounting arrears. Naturally therefore Judges favour expedition to excellence. Added to this is the lack of adequate research assistance either from Bar Associations or academicians. Notwithstanding these handicaps, Justice Nambiyar kept up a high standard in the quality of his judgments. They were marked by clarity of thought and expression, an elegant and facile style and a rigorous legalistic approach with due reverence for precedents. His judgements contained clear formulation of legal principles without unnecessary digressions. He seldom travelled beyond the framework of the case before him. Judicial restraint and'judicial humility were two of his outstanding virtues. He expounded the law but left reforms to the legislature. In this sense he was not a judicial activist. He was slow in invalidating legislative provisions and wherever possible applied the presumption of constitutional validity of legislative action His attitude was one of deference to the collective wisdom of the Legislature. Many of his judgements recalled what Justice Mathew said in Ambika Mill's case (AIR. 1974 SC. 1300) "Courts have the power to destroy, not to reconstruct." This outlook sometimes gave the impression that he was somewhat conservative and orthodox in his judicial opinions. But an objective review of his judgements reveals that when he was convinced of the ultra" vires nature of a statute or that there was abuse of power, he could come down heavily and strike down the law or quash the administrative action with a pungency of language which could be devastating as in P.K. Kunju's case. His insistence on adherence to procedural formalities, though at times gave the impression that he was over technical in his approach, really arose out of his conviction that procedural laws are meant to be obeyed and constitute the handmaid of justice. For example, he said in a recent decision, "While we are at one with the learned Judge that courts of law are there to do justice, we cannot countenance their breaking the cordon of procedural shackles." (1980 KLT 186).

Francis Manjooran v. Government of Kerala (1965 KLT. 1076 FB) was one of the earliest cases decided by Nambiyar J sitting along .with M. S. Menon, C. J. and Raman Nair J. This was an interesting case where applications filed by some doctors for passports for going abroad to take up employment were rejected by Government of India on the ground that medical talents in the country should not be drained. The law relating to passports at that time was somewhat odd. According to the Passports Act, 1950 no passport was needed for a person to go out of India, but he could not re-enter this country without a passport The question that arose was whether right to travel abroad was part of the 'personal liberty' envisaged in Article 21 which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. All the three judges unanimously held that the denial of passport offended Article 21. but wrote separate judgements. They vied with one another in expounding the concept of personal " liberty and the ambit and content of Article 21. It has to be remembered "that this important constitutional issue was res Integra then and the Supreme Court had not spoken on the point. MS. Menon CJ's judgement was a brilliant piece of legal literature studded with quotations ranging from Black-stone to Ivor Jennings and a historical survey of the origin and growth of the passport system. Nambiyar J's. concurrent judgement delivered within a few months of his elevation to the Bench, is characterised by his usual felicity of expression and originality of thought. He gave a textbook analysis of Article 21 and the decisions bearing thereon which was reminiscent of the technique he used to adopt as a successful law teacher (The writer was his student in the Madras Law College). He concluded: "Giving the matter my careful consideration I am of the view that the fundamental right to 'personal liberty' in Article 21 includes the right to cross the frontiers and to re enter the country." This proposition was later confirmed by the Supreme Court in Satwant Singh's case (AIR 1967 SC 1836) which again was emphatically reaffirmed in Maneka Gandhi's case (AIR 1978 SC 597). According to Maneka Gandhi, an arbitrary denial of passport can offend not only Article 21 but also other fundamental freedoms like Art. 19 (1) (a) if the object of the applicant for passport is to make a speech abroad or Article 19 (1) (g) where his object in going abroad is to practise a profession or carry on a trade or business.

Justice Nambiyar's judgements on natural justice are particularly noteworthy. In Damodaran Nair v. District Collector (1969 KLT 283) he quashed the Collector's order cancelling a gun licence issued under the Arms Act, 1959 on the ground that the show cause notice itself was illusory in not disclosing the grounds of the proposed action and that the District Collector's conclusion that it was not in the interest of public peace and safety to allow the petitioner to keep the gun, lacked materials. The right to hold a gun on the strength of a licence was held to be a fundamental right to hold property.

Abuse of power by people in high places provoked a scathing judgement from Nambiyar's J. P. K Kunju v. State of Kerala (1970 KLT 77). The Division Bench consisting of Nambiyar and Eradi JJ. Quashed an order of Government constituting a Commission of Enquiry to go into certain allegations made on the floor of the Assembly against the then Finance Minister P. K. Kunju. The order was held to be vitiated by malafides and colourable exercise of power. He said that power should be exercised by a public functionary only for the purpose for which it is conferred on him by law. If it is exercised for an unauthorised or oblique purpose, the action will be vitiated. After discussing the evidence regarding malafides, Justice Nambiyar said: "On all the facts and circumstances placed before us we feel that this was a mere ruse to drop the petitioner from the Ministry and that the dominant object of ordering enquiry against him was not to maintain the purity and integrity of administration."

Justice Nambiyar's approach to Natural Justice was however pragmatic and justice-oriented. In cases of disciplinary action against students, he seldom interfered if the procedure adopted by the University satisfied the judicial conscience that a fair opportunity had been afforded to the student to defend himself and justice had been done. For instance, in Jacob Mathew v. Prof., Medical College (1966 KLT 866) the learned Judge held that admitting a previously recorded statement in evidence did not vitiate the enquiry if the student was given the opportunity to cross-examine the witness.

Principal, Engineering College v. John (1979 KLT 686) was a case where disciplinary action was taken by the Principal against a student for ragging. An enquiry was conducted by two professors of the college. Victims of ragging were examined in the presence of a student and were cross-examined by him. The College Council accepted the enquiry report and expelled the student from the college hostel and suspended him till the next semester. The College Council took the decision on the basis of the enquiry report and 'other evidence'.The question was whether this reference to 'other evidence' offended principles of natural justice. There was neither pleading nor proof or any indication in the files to show that the 'other evidence' referred to some undisclosed and secret evidence. The Division Bench consisting of Nambiyar CJ. and Balaganadharan Nair J. held that the enquiry was fair and there was substantial compliance with natural justice. It was held that courts should be slow to interfere with decisions of domestic tribunals appointed by educational bodies like the Universities. In Hira Nath's case (AIR 1973 SC 1260) where some male students were charged with indecent behaviour towards the inmates of a girls' hostel, the Supreme Court went to the extent of holding that in an enquiry held on such charges, rules of natural justice did not require that the state­ments of girl students should be recorded in the presence of the male students concerned, or that they should be furnished with the report of the enquiry committee. In Madhavan Pillai v. Balan (1979 KLT 220 FB), it was argued that in a case where the management itself was the accuser and prosecutor it was not competent to conduct an enquiry into the misconduct of a private college teacher because the rule of natural justice demanded that no one should be a judge in his own cause. Counsel said that Statute 101(c) of the University should be read down so as to conform to that fundamental principle of natural justice. The Full Bench rejected this contention. Nambiyar CJ. Who delivered the judgment held that if a statutory provision excluded the application of any rule of natural justice the court cannot ignore the mandate of the Legislature and read into the concerned provision the rule that it so excluded. The importation of the rule of natural justice would lead to evisceration of the very statutory provision. It was laid down in this case that the principle of natural justice that no man shall be a judge in his own cause cannot prevail against an express statutory provision or a consensual term. Similarly in State of Kerala v. M.C. Joseph (1975 KLT. 551) Nambiyar J. held that principles of natural justice cannot avail against an express contractual term entered into by agreement or consensus of the parties providing that Government, one of the contracting parties, could decide for itself the dispute arising from the contract. The same principle was laid down by Nambiyar CJ. in State of Kerala v. Govindan Nair (1980 KLT. 186) where it was held that a clause in a lease agreement conferring power on Government to decide finally the amount due from the lessee was not penal in nature or in terroram.

Nambiyar J. has handed down a number of judgements on Fundamental Rights. The Rice & Paddy (Procurement by Levy) Order 1966 defined cultivator as one who actually puts his hand to the plough to the soil. It seemed immaterial whether he had any proprietory or beneficial interest in the land. It meant that even a servant or labourer of an owner of land, could be regarded as cultivator to be dealt with under the provisions of the Order. Nambiyar J. held in Narayana Panikkar v. District Supply Officer (1968 KLT. 223) that the definition was artificial and arbitrary and offended Art. 14 and as the same was inextricably woven throughout the texture of the Levy Order, the entire Order was affected by the vice of the definition. He said: "In the absence of a satisfactory legislative definition of the term, its nuances and limitations are not matters to be supplied by judicial interpretation or judicial ingenuity. Much the less are they to be left to be evolved according to the vagaries of the executive officers entrusted with powers under the Levy Order. This recalls to mind the observation of the Supreme Court in State of A. P. v. Raja Reddy (AIR. 1967 SC. 1458) that "official arbitrariness is more subversive of the doctrine of equality than statutory discrimination."

In Azhakiya Nambiapillai v. State of Kerala (1968 KLT 27) the learned judge quashed an order of Government allowing Co-operative Societies to continue as wholesale distributors under the Kerala Rationing Order, 1966 while terminating the appointments of individual distributors as violative of Art. 14. A classification of distributors into Co-operative Societies and other individuals in the matter of termination of their appointments was held to be irrational and not based on intelligible differentia. However Clause 51A of the. Rationing Order which permitted preference to a Co-operative Society in the matter of appointment of distributors was" upheld. A later Division Bench followed this decision in 1976 KLT. 54.

In Krishnan Thangal v. Stale of Kerala (1971 KLT. 948 FB.) Nambiyar J. held that the demand, levy and collection of a tax under the Kerala Land Tax Act 1961 were unauthorised and illegal as no authority had been specified by S. 5 of that Act to levy the tax. But by a majority (M. M. Nair & Nambiyar JJ. concurring and Krishnamoorthy J. dissenting) the constitutional validity of the Act was upheld Nambiyar J. did not subscribe to the proposition that a taxing statute can be condemned as confiscatory on account of the harshness and severity of its provisions. A similar view was taken by him on the Kerala Building Tax Act, 1975 in Sundaribai v. State of Kerala (1978 KLT. 931) which was affirmed by the Supreme Court on appeal. In' Baby George v. State of Kerala (4973 KLT. 1009) appointment of Government Pleaders in the High Court by selection without inviting applications was held not to offend Art. 16.

In Sister Lewina v. Lilly Kurien (1973 KLT. 634) a Division Bench consisting of Nambiyar and Viswanatha Iyer JJ. held that the provision in the University Ordinance 33 providing a right of appeal to the Vice Chancellor against disciplinary action did not violate Art. 30(1). But the Vice Chancellor was held not to have the power to order reinstatement. Nambiyar J. said: "It cannot be said that a subordinate body such as the Syndicate intended to confer so far reaching a power on a statutory tribunal by so furtive a process. This in effect amounts to eviscerating the right of appeal to the Vice Chancellor but the remedy does not lie in our hands." But the Supreme Court took a different view in appeal (1978 KLT. 723) and held that the power to reinstate is incidental to and is implied in the power to hear an appeal. The Supreme Court however struck down Ordinance 33 (4) providing appeal to the Vice Chancellor on the ground that the conferral of such wide powers on the Vice Chancellor amounted in reality to fetter the right of administration under Art. 30 (1).

In the Full Bench decision in Sadanandan v. Raghava Kurup (1974 KLT. 650) the court examined the grounds on which a writ of habeas corpus could issue under Art.226 interfering with parental right over children. Nambiyar J. said relying on AIR. 1964 SC. 1625 that the proceedings are discretionary, a preliminary enquiry is open and that although the writ is of right it does not issue as a matter of course. Refusing the writ in that case to the petitioner who claimed to have married the third respondent and demanded her custody from her parents. Nambiyar J. observed: "In this region, where, at best, we see the picture of a woman subjected to the pulls and pressures of marital (or, may be extra marital) attachment on the one side and parental affection or guidance on the other, taking into due account the rights and responsibilities which nature entrusted to parents in regard to their children, we are not satisfied that any case of illegal detention or custody which calls for redress under Art. 226 stands made out."

Sitting in a Full Bench in Benedict Mar Gregorios v. State of Kerala (1976 KLT 458) Nambiyar J. examined the constitutional validity of the various provisions of the Kerala University Act, 1974.

In Padmanabhan v. State of Kerala (1977 KLT. 916) a Division Bench refused a writ of quo warranto against the appointment of an Additional Advocate General for the State. Nambiyar J. said: "Maybe, such appointments may provoke unseemly scrambles or conflicts or clashes in the discharge of functions. These however are not insurmountable and may be left to resolve themselves by adjustments of human relationship by development of healthy conventions or by delineation by rules and instructions. The provisions of the rules framed under Art. 165 (2) & (3) persuade us to hold that in actual practice it is possible to secure a smooth and harmonious functioning of two incumbents in the same office."

In Mayer Simon v. Advocate General (1975 KLT. 78) a Bench of five judges quashed an order passed by the Advocate General refusing for filing a suit under S. 92 (1) CPC. In agreeing with the conclusion of Govindan Nair CJ. Who wrote the leading judgement, Nambiyar J. in his separate concurring judgment travelled through a different route to reach the same conclusion. He found that the Advocate General's order was so laconic as not to indicate any application of the mind to the considerations to which he was required to bestow attention. He allowed the O. P. on that short ground.

In Pulomaja Devi v. Gopinathan Nair (1975 KLT 111) (FB), the modus operandi of making a selection of magistrates on the basis of Rules 14 and 17 of the KSSR. Which lay down the principle of communal reservation by rotation 5-nd sub-rotation, was examined. Two different modes of working out the principle were reasonable where the selections had to alternate between the merit pool and the reserved quota.Nambiyar and Bhaskaran JJ. held that the mode adopted by the PSC. was the right one to which Chandrasekhara Menon J. dissented. But the judges unanimously held that where two modes are plausible and one of them adopted by PSC, courts should not interfere under Art. 226.

The above judgements are by no means exhaustive of Justice Nambiyar's best judgements. But they indicate with sufficient conviction that Justice Nambiyar was one of the ablest judges of the Kerala High Court and his judgements would well provide an inspiring model for future generation of judges.