Lawyers' Responsibility

(Alexandar Skaria, Advocate, Ernakulam)

Politics is not sufficiently pure. Nor do the politicians claim to be perfect. The members of the legislature, as also the masses who elect them, are not all learned or enlightened. They are not all ignorant either. Most of them do not 'drink deep or taste not the Parian Spring' so much so that the danger of a little learning runs at a high potential across the administration.

The judiciary, however, is above board. Before a man emerges as a lawyer, he has to take a series of University Degrees one after another, and has to undergo years of meticulous study and preparation for that purpose. The lawyers, including judges and advocates, are thus a class or competent men of learning and enlightenment, of integrity and maturity. They profess to be such, and are supposed to be so, when they advocate for others and sit in judgment over others. By continuous hard work they advance towards perfection as they advance in age and experience.

The court is the guardian of the constitution and the lawyers have the keeping of the law entrusted and committed to them. Any defect in legislation, or in the implementation of any law is challenged in courts where lawyers look at it from all angles and prescribe the necessary antidote. Breaches in the law are also dealt with by them. The toning up of the national character is thus the lawyers' responsibility. For a lawyer, imperfection is no plea. He has got to be perfect or else he must abdicate the profession and go in search of pastures new.

It is the apathy of the lawyers, though indirectly, that is the initial cause of all corruption. The fault, learned brothren, is not in our stars; nor in our fellowmen mainly, but ourselves that we remain underdeveloped, and the rule of law deteriorates in our country. It is high time that we awoke to reality, and realised our responsibility.

Subordinate or Delegated Legislation

C.J. Abraham, Registrar, High Court of Kerala

(Formerly Additional Secretary, Kerala Legislative Assembly)

The volume of Legislative work in every Legislature is on the increase year after year on account of governmental activities extending to more and more fields of human activity. The process of law making has also become more complicated; but at the same time the law has to be correct in technical details. In such circumstances the Legislature does not have enough time to calmly deliberate on all the complicated and technical details of the provisions of the Legislative measures brought before it Hence the practice is for the Legislature to lay down broad principles of any Legislation and delegate to the Executive the duty and power to frame regulations, rules, bye-laws, schemes etc. in conformity with the principles embodied in the Legislation. This power of Legislation given to the Executive being subordinate to the supreme Legislative power of the Legislature is known as subordinate or delegated Legislation.

It is now an accepted proposition that any matter which essentially constitutes the Legislative policy of the Ltate should not be delegated by the Legislature to the Executive. The principle is that the supreme Legislative authority of the Legislature in essential Legislative policy matters shall not be abdicated to any other body. In regard to any Legislation on hand the Legislature will lay down a policy or standard for the guidance of the delegated authority. Once when the Legislature has provided in a statute the principle of a new law, the Executive may by means of the delegated power of Legislation, make regulations, rules, bye-laws etc. to work out the application of the law within the principles and suitable to the changing circumstances. When rules, regulations, bye-laws etc. are framed by the Executive in exercise of the powers delegated to it by statute, such rules etc. will have the force of law and the same binding power as any provision of the principal statute.

There are parliamentary measures to scrutinise whether the agency to which Legislative power is delegated exercises the power within limits. In India both in the Lok Sabha and in the Legislative Assemblies of the States there is the Committee on Subordinate Legislation to scrutinise and report to the Lok Sabha and the Legislative Assemblies whether the powers to make regulations, rules, bye-laws etc. conferred by the Constitution or delegated by the Legislature are being properly exercised within such delegation. Each regulation, rule, bye-law etc. framed in pursuance of the provisions of the Constitution or the Legislative functions delegated by the Legislature to a subordinate authority shall be numbered and published in the Government Gazette immediately after it is promulgated. After such publication it is the duty of the Committee on Subordinate Legislation to consider—

(i) Whether it is in accord with the general objects of the Constitution or the Act pursuant to which it is made;

(ii) Whether it contains matter, which in the opinion of the Committee, should more properly be dealt with in an Act of the Legislature;

(iii) whether it contains imposition of any tax;

(iv) whether it directly or indirectly bars the jurisdiction of the Courts;

(v) whether it gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power;

(vi) whether it involves expenditure from the Consolidated Fund of the State of Kerala or the public revenues;

(vii) whether it appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made;

(viii) whether there appears to have been unjustifiable delay in its publication or in laying it before the Legislature; and

(ix) whether for any reason its form or purport calls for any elucidation.

If the Committee is of opinion that any order should be annulled wholly or in part, or should be amended in any respect, it shall report that opinion and the grounds thereof to the Assembly. If the Committee is of opinion that any other matter relating to any order should be brought to the notice of the Assembly, it may report that opinion and matter to the Assembly.

The Rules of procedure in the Legislature also provide that all regulations, rules, sub-rules, bye-laws etc. framed in pursuance of the Constitution or the Legislative powers delegated by the Legislatures to a subordinate authority shall be laid before the Legislature for the periods specified in the Constitution or the relevant Acts. This is to enable the Members of the House to consider the subordinate legislative measures in all its aspects and to move for amendments if necessary.

Apart from the above parliamentary check on the exercise of delegated power, all orders made in exercise of delegated power are subject to examination by courts at the instance of a third party, on a plea of ultra vires.

Thus delegated Legislation is an essential part of Legislation to enable easy and convenient working of the governmental machinery. But the delegated power shall be exercised carefully and within permitted limits.

Whither Motor Accidents Claims Tribunals in India ?

(T.A. Ramadasan, Advocate, Tellicherry)

It was in 1975 that Claims Tribunals were for the first time constituted in Kerala, and the District Judges of Judicial Districts were made the Tribunals for their respective districts. Though the notification constituting these Tribunals was published in April 1975, the District Judge Tribunals could not actually try or dispose of cases, because there were no rules framed. The Public and the Bar had represented several times and ultimately it was only on 25-7-1977, over two years after the constitution of tribunals, that the Kerala Motor Accidents Claims Tribunal Rules, 1977 were published.

Meanwhile, needless to say, accidents went on increasing day by day and every accident gave rise to a claim and the accumulated number of petitions in each District swelled to thousands. The District Judges began taking up cases, but then fresh wisdom dawned on the Government, and constitution of seperate Tribunals was proposed with the concurrence of the High Court. When once this proposal was in the air, the District Judge Tribunals lapsed into inactivity. Even part-heard cases were not completed. New ones were not entertained, or at any rate were only just received.

Ultimately, the Government, decided upon constituting regional tribunals for a group of Districts, designed as Camp Courts. In fact, the pending numbers in each District justified one Tribunal for each District at least till the back logs were cleared. But in this also the High Court, possibly obsessed with the idea of easing its own burden in ordinary Courts, concurred. The difficulties of claimants were never taken into account. Camp Courts like Labour Courts and Industrial Tribunals have only added to the delays, apart from burdening litigants. A strange way of reaching justice at the door of aggrieved!

Yet three Tribunals were constituted for the whole State and the District Judges Tribunals were asked to bundle up the pending cases to be dispatched to the permanent seats of the newly, constituted regional Tribunals. This was by two notifications dated 23-6-1979 and 10-7-1979.

Now, these regional Tribunals are at Calicut, (for the four Districts of Cannanore, Kozhikode, Malappuram and Palghat) Ernakulam (for the districts of Trichur, Ernakulam, Idukki and Kottayam), Trivandrum (for the districts of Trivandrum, Quilon and Alleppey). But so far these have not started functioning at least in Kozhikode, records of pending cases have not been transmitted, staff have not assumed charge, no buildings or furniture have been provided. One does not know, which is the address of the Tribunal at Calicut, where the claimants have to file petitions. Yet, accidents are ever on the increase, but there is no forum to file claims for the victims. Be it remembered that, Art.-39A enjoins a duty on the State to secure that the operation of the legal system promotes justice. The High Court is in charge of these tribunals, and yet a victim in a road accident is denied a forum. Will it not be wise to reinvest the jurisdiction in the concerned District Judges themselves, and where the pending numbers warrant, appoint additional Judges to function as tribunals, instead of leaving such a claim to wandering tribunals which never have found a house yet ? This definitely is not the way to reach justice to unfortunate victims, or to give them speedy justice.

Could the High Court and the Government continue to ignore this brooding sense of injustice?

Frayed Justice

(M. Marcus, B.A., M.L., Lecturer, Govt. Law College, Ernakulam)

"They live in an atmosphere of echoing footsteps and clanging gates and shouted orders".

'Prison' by Michael Wolff

The concept of justice has been expressed to mean the desire to "render to every man his due". Modern writers on jurisprudence attack this explanation of the notion of justice as defective for the reason that the question as to "what is due" to a person admits of no precise definition. This paper is concerned with the exposing of a situation of injustice which occurs in the administration of Criminal justice. Prof. Hart H. L A. compares justice in punishment to the notion of property and propounds the theory of distributive justice and speaks of "retribution in distribution". [1] When we examine the situation of a convicted husband in prison undergoing long term imprisonment and his wife in the free world outside we are struck with the thought whether the concept of justice as rendering everyone his due is fully put into practice. It is a fact that when penal justice meets out punishment by way of imprison­ment to the convicted husband it may be said that such punishment is due to him, but at the same time his wife is deprived of the right of sexual intercourse with him during the term of his imprisonment in our country. It appears that in this instance justice does not render anything to her but it deprives her of her "due" right mentioned above without any justification. The right of a wife to move a civil court to get a decree in her favour for restitution of conjugal right is an established situation known to courts of justice. Therefore the fact that a wife has such a right is beyond dispute.

The notion of punishment relates back to the days of Adam and Eve and it is recorded in the Old Testament that Adam and Eve were punished by expulsion from the Garden of Eden as per Christian mythology. The sentence passed in the event of such punishment merits appreciation. Adam was decreed "in the sweat of thy face shalt thou eat bread". The sentence on Eve reads "in sorrow thou shall bring forth children". [2] One significant point that emerges, here is that eventhough God Almighty punished both Adam and Eve the sentence pronounced on Eve does not deprive Eve of her right of sexual intercour. ? with Adam for the reason that as per "Genesis" there was no other male human being in existence who could be nought by Eve for procreation. This means that even under the point of punishment the conjugal right of the wife was protected. The author feels that this should be an eye opener to the law makers of this country in this context. If we view the incident in the garden of Eden through the spectacle of modern criminal jurisprudence we will label them (Adam and Eve) as participis criminis for the reason that Eve ate "the fruit of the forbidden tree" and. she abetted Adam to taste of it and Adam did it also. So the liability for violation of the command was rightly fixed on both of them. But the divine law touching sentence has taken into account the nature of homosapine in its full import and that is why divine justice has not deprived Eve of her right of conjugal relation with Adam. Here we find the disparity in the content of celestial justice with the terrestrial justice in cases where the husband is sentenced to a punishment of imprisonment.

We feel proud in declaring that we are in an era of the humanisation of criminal justice and the individualisation of punishment is the moving spirit of the present day penal justice. It may be noted here that we are just after celebration of International Women's Year, but the pathetic state of the Indian wife whose husband is sentenced to long term of imprisonment mocks at the grand celebration referred to above.

It cannot be surmised that only the unmarried men will be the criminals in society. So much so when a married man is punished with long term of imprisonment and shut in prison the inevitable consequence is that his wife is deprived of her right of sexual intercourse with him during such period in India and she cannot move a civil court for restitution of conjugal right for the reason that the basis of filing a petition for that purpose is the refusal by the husband to have sexual connection with the wife without sufficient justification.[3] Nobody says that the convicted husband refuses his wife's desire for sexual union with him. But the law in India rather does not allow him. The right of sexual intercourse between married persons is a right sanctified by the law of marriage and the sense of justice in society. The fact remains that atleast in India the conviction of a husband for an offence involving long term of imprisonment does not ipso facto annul his marriage, so much so the wife is not free to marry another person for fear of being prosecuted for the offence of bigamy. The divorce law in India does not admit conviction for an offence resulting in imprisonment as a ground of divorce. In this set up under the compulsive urge of the body, if the wife gives her consent to another man for sexual intercourse with her, he will be prosecuted for adultery under the Indian penal law. I feel that the fate of the convict's wife is brought out clearly now. It will not be wrong to say that the law as it stands in India penalises her for no fault, though she is not punished strictly for the reason that punishment is restricted to the offender as rightly observed by prof Hart H, L. A [4] Punishment known to the common law of crimes as well as the Indian Penal Code presupposes Mens Rea and Actus Reus. One fails to understand what Mens Rea or forthat matter what Actus Reus the law can impute to the wife of a convict. It is strange to note that the law in India sneaks away with an air of indifference after bringing about the deprivation of the right of sexual intercourse of the convict's wife with her husband. It is relevant to consider at this point that the criminal law considers it unfair to punish the wife of a criminal for having harboured him for the reason that "he is her lord" so far as the pre-conviction period is concerned. This is fair concession granted by the modern criminal law to the wife of a criminal which may be a reflection of the fact that the dignity of wedlock surpasses the gravity of criminal justice and the cruelty of the archaic Roman law Lex quis quis which decreed the punishment of the convict's wife and children for the offence which he committed, in the past days of criminal jurisprudence. This change in the substantive criminal law marks a legalistic and analytical approach to criminal justice. When we glance at the adjectival criminal law in India that is, the Code of. Criminal Procedure, Sec. 125 catches our attention. This section champions the cause of the derlicted wife and the law lends its aid by compelling the husband to give her maintenance. This means that the criminal law both substantive and procedural show a concern to the wife prior to the conviction of her husband. If the law's concern for the wife is real then why in India the conjugal visit in prison by the wife to her husband under imprisonment is not made legally permissible. It appears that a wife to whom civil courts lend aid by passing a decree for restitution of conjugal rights facilitate the same physical act between husband and wife which is denied by the criminal law to the wife of the convict. Sir James Fitz James Stephen, a learned criminal judge of England and the historian of the English Criminal Law in expounding the close relation between crime and punishment caiches at the imagery of the desire of the married person to have sexual intercourse with his wife. But curiousaly enough once a husband is convicted in India the sexual intercourse between himself and his wife comes to an end during the period of imprisonment of such husband. Writers on Criminology plead much for the better treatment of the convicted prisoner in prison, but only very little attention has been bestowed on the fate of the convict's innocent wife by many of the writers and by the administrators of criminal justice. It is high time to take up her case either in the shape of permitting her to visit her husband in prison for conjugal relation or the law should provide that the conviction of a husband for an offence punishable for 7 years or more with imprisonment shall result in the annulment of marriage so that the wife is free to marry if she likes in such an event. It is also felt that such a provision would make husbands more cautious before they embark upon crimes of deeper dye. It may be noted that conviction is a ground of divorce in certain countries. It is said "conviction for felony or sentence to imprisonment is a ground for divorce under the statutes of most states such as Alabama, Arizona, Arkansas, California and Colorado". [5]

The penal institutions in Mexico, permit wives to visit their husbands in prison under certain circumstances and to spend the night with them. [6] In Sweedish prison also the conjugal visiting is legally permitted. These instances are sufficient enough to make our legislators to frame laws permitting conjugal visiting in the prison of India. It is argued by some that release on Parol is a sufficient substitute to permit conjugal visiting in prison. But then one should not forget the fact that release on parol is dependent upon the subjective satisfaction of the prison authorities which has nothing to do with the desire of the convict's innocent wife. It appears that if the release on Parol is to eclipse the right of conjugal visiting in prison it would mean that the sexual union between the convict and his wife will have to be scheduled as per the moods, fancy and discretion of the prison authorities which is the worst step that can be thought of. Two modern criminologists observe "perhaps the most dignified type of conjugal visiting was established in Argentina in 1947. A specially built structure was set aside for the purpose in the national penitentiary in Buenos Airs...and intricate architectural plan provides scrupulously for privacy and staff members detailed, for the maintenance of the system are specially selected...The rooms are attractively furnished each with a private bath and toilet [7]

It appears that a frustrated innocent wife of a convict in India is placed in such situation by law as to compel her to drift into prostitution and in that event the godess of justice will be quick to get her punished for soliciting. One is driven to ask whether the godess of justice is an unwilling spinster who satisfies her jealousy against a wife who is the wife of a convict sentenced to long term imprisonment. The fate of the husband in prison leads him slowly but surely to moral degeneration since absence of his wife diverts him to perverted sex practices in the shape of homosexuality with the result that when he is released in the distant future he comes to his family as a worst man. A noted author observes "as one sex community the prison is abnormal. Men's personalities become strangely warped whenever they are to get along for long period without the gentler sex. Important here is the physiological effect of the absence of women. Sex expression is one gratification which is denied to the prisoner but which isnot denied even to the slave. Put the most normally adjusted men in a womenless society and there will be increased resort to substitute for normal sex relationship. In prison men are starved for companionship of wife, children or friend".[8]

Stanton Wheeler observes "errors made in, releasing men too early are publicly observable. Under a statute allowing commitment upto life, however errors made in keeping men who may in fact be cured cannot be trusted because by the nature of procedure they are not given a chance either to succeed or to fail......There is always the danger of undue restriction of civil liberties in attempts to provide adequate protection to the community. [9]

The present situation denying conjugal visiting in prison is productive of further criminal acts by the wives and the children of the convict will also drift to the path of juvenile delinquency. It is felt that if such conjugal visiting is allowed, the convict prisoner will come in closer relation with his wife which will tend to create a desire for his home which will be conducive to his rehabilitation.

We make too many laws and twist and reshape the Constitution of our country by legislative measures even to the extent of protecting animal life. It would have been more sensible and useful if Parliament had passed laws permitting and specifying conditions of conjugal visiting of the convict by his wife in our prisons than worry about straining the Constitution for less worthy and urgent matters. It is felt that our legislators in their wisdom should examine the nature of justice rendered to the convict's wife in our polity for the reason that the most fair minded judge cannot pass an order for conjugal visiting to the prison by the prisoner's wife by invoking the inherent powers under S. 482 of Criminal Procedure Code "to secure the ends of justice" in this matter where ends of justice stand Frayed.

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Foot Note:-

1.'Punishment and Responsibility' by Prof. Hart H.L A.

2.Genesis-Chapter III verse 16 17 The Holy Bible

3.Encyclopedia Britanica Vol. VII Page 457

4.'Punishment and responsibility'—Prof. Hart H.L.A.

5.Loss and curtailment of rights-by Sol Rubin "Crime and Justice" Vol. Ill by Radinowics and Wolf Gang.

6.Encyclopaedia of Criminology by Vernon C. Branham and Samuel.

7.New Horizon of Criminology by Barnes and Teeters, Page 511

8.Criminology by Donald R. Traft, Page 581

9.Sociology of Crime and delinquency by Marvin Wof Gang, Leonard Savitz and Norman Johnstan, Page 639

Forensic Titbits

(T.M. Abdulla, Advocate, Tellicherry)

Loose Terms:— Who is 'petitioner-respondent', 'respondent-respondent', 'appellant-respondent' etc.? So confusing!

'Petition' is either O. P. or E. P. But E. P. is included within the definition of application'. E. P. is better taken out of the definition and classified with O. P. All others are applications. This distinction is seldom recognised. Applications and petitions are indiscrimately so called.

'Responnent' in what? appeal, petition or application? Why not use differentiating words for the adversary in different proceedings? A suggestion: Applicant Vs. Respondent. Petitioner Vs. Counter-petitioner. Appellant Vs. Opponent?

Appellant-petitioner or petitioner-appellant? Sometimes describing from past to present and sometimes from present to past rank. Better stick to one mode of expression to avoid confusion.

Copies:—Copy-getting is a delaying matter. Notwithstanding load of mistakes a certified copy consumes time. Why not use mechanical means like tape-recording and photo-copying at party's extra cost? Why printing if more than 700 words? R. 127 permits photographing documents, but only by Govt. photographers or Govt-approved photographers. Where are they? Why not by private photographers also taking care for safety of documents?

There are free copies and charged copies to be supplied by one side to the other. Obtaining a charged copy is a cumbersome processwritten request, intimation of charges, payment and then preparation and supply. Vide R. 135. It does not work. This rule speaks of copy of proceedings; 'proceedings' include all documents except those produced as evidence. Vide R. 5 (11), Rules of Practice. No definition of the word 'proceeding in the Code. 'Proceeding' in a generic sense means "any application to a court of justice, however made, for aid in enforcement of rights, for relief, for redress of injuries, for damages or for any remedial object". Balck's Law Dictionary definition, generally accepted. Free copy of plaints, written statements, applications, affidavits and counter-affidavits are required to be given to opposite side. As evidence documents are not included in the word 'proceeding', they need not be given on charge under R. 135. Then there is little that can be obtained on charge under this rule. Free copy of all documents on which a party relies for relief may be given to the other side. The cost of such copies may form part of costs in the cause in case of success. It calls for amendment of either R. 135 or R. 5(11) CRP.

Returning papers for curing defects:—Presented papers are often returned. There is a subterefuge in R. 32. It speaks of returning for non-conformity with the practice of the court. What can be a practice of the court other than what is prescribed by the Code and the Rules of Practice? Practice of the court is vague.

Timing of presenting a proceeding is sometimes material. While date-sealing and numbering and initialling by the chief ministerial officer, he may endorse the time of the initial presentation also on papers.

Cost-list:—Rule 196 allows 10 days time for filing cost-list. This accounts for delay in preparing decree copy. Why not require to file it on the day of the closing of the case for judgment or on the next day?

"In the circumstances of the case, no costs" is a lazy ending with an abandonment of court's duty. Yet this is almost a routine.

Arguments:—Points urged in oral argument are often missing in judgments. Written argument supplemented, if court so requires, by oral clarifications is the remedy for this.

List of authorities relied on may be given to the other side in advance to avoid surprise.