PRESIDENTIAL ADDRESS

Presented by

O.V. Radhakrishnan, Senior Advocate, High Court of Kerala

Hon’ble Mr.Justice K.M.joseph, Former Judge, Supreme Court,
Mr.Asif Ali, Former Director General of Prosecution, High Court of Kerala and Mr.Prsanth Padmanabhan, Advocate-on-record, Supreme Court
and other Hon’ble Dignitaries, Respected Seniors, Advocate Friends,
Ladies and Gentlemen,

It has been our pleasure and privilege to have Mr.Justice K.M. Joseph amidst us for inauguration of this Discussion Programme on the subject “Uniform Civil Code and its Implementation” organized by the Indian Lawyers’ Association, an apolitical organization to enlighten public awareness of the importance of and significant benefits of adopting the Uniform Civil Code in India.

The Uniform Civil Code has been a topic of heated debate and one of the intense subjects of discussion since the country’s independence.  The expression “Uniform Civil Code” is defined in Article 44 under Part IV of the Constitution.  Article 44 is a provision writ in strong diction that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.  The Uniform Civil Code is a legal framework and is a set of uniform laws regarding various matters like inheritance, marriage, adoption, succession and divorce applicable to all citizens irrespective of their religion, community, race, sex and caste.  Uniform Civil Code primarily aims to promote social harmony, gender equality and secularism by eliminating separate legal system based on different religions and communities.  Indeed, implementing a Uniform Civil Code in India would align with the principles of secularism enshrined in our Constitution.  Secularism is the belief that religion should not be involved with the ordinary social and political activity of a country.  In a secular State or society, religion has less and less influence on daily lives.  Be it so, implementing a Uniform Civil Code could foster national integration by bridging religious divides and fostering a sense of unity and shared identity. The existence of multiple personal laws creates confusion and complexities.  Codification of a Common Civil Code is to create a single set of laws governing personal matters  such as marriage, divorce, inheritance, adoption for all citizens, regardless of their religion. Presently, different religious communities in India follow their own personal laws.  If and when, a Uniform Civil Code is implemented unifying all personal laws followed by different religious communities, all the Indians will unite as one and promote a sense of unity and national identity among citizens, fostering harmony in a diverse country like India. Having a single set of laws for personal matters would simplify the legal system leading to more efficient legal processes and reduce confusion and uncertainties.  It would assure legal clarity and consistency.   

It would seem valuable to indicate that Article 44 is included in Part IV – Directive Principles of State Policy under the Constitution. Article 37 provides that the provisions contained in Part IV are not enforceable by any Court but the principles therein laid down are nevertheless, fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The principal object in enacting the directive principles appears to have been to set standards of achievement before the legislature and the executive, the local and other authorities, by which their success or failure could be judged.  Those, failing to implement the directives might receive a rude awakening at the polls as indicated by Seervai in Constitutional Law of India (1st edn.) P759. 

A Constitution Bench of the Hon’ble Supreme Court in Mohd.Ahmed Khan v. Shah Bano Begum reported in (1985 KLT OnLine 1235 (SC) = ((1985) 2 SCC 556 - paragraph 32) observed that it is also a matter of regret that Article 44 of our Constitution has remained a dead letter. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.  The Hon’ble Supreme Court exhorted that a beginning has to be made if the Constitution is to have any meaning.

In Sarala Mudgal (SMT), President, Kalyani & Ors. v. Union of India & Ors. (1995 (2) KLT 45 (SC) = (1995) 3 SCC 635) the Hon’ble Supreme Court ruled:

“32. One wonders how long will it take for the Government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India.  The traditional Hindu law – personal law of the Hindus – governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying the same.  There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country.”

“33.  ......The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians.  The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil code” for the whole of India.”

In Lilly Thomas v. Union of India (2000 (2) KLT SN 53 (C.No. 62) SC = (2000) 6 SCC 224)the Hon’ble Supreme Court held:

“68.  .......This Court has time and again reiterated the position that directives, as detailed in Part IV of the Constitution are not enforceable in courts as they do not create any justiciable rights in favour of any person.  ......”

In John Vallamattom v.. Union of India (2003 (3) KLT 66 (SC) = (2003) 6 SCC 611) the Hon’ble Supreme Court declared Section 118 of the Indian Succession Act which imposed restrictions on Christian in making charitable bequests as unconstitutional as it was discriminatory against Christians.  The Judgement called for the enactment of a Uniform Civil Code to eliminate such disparities. 

In Shayara Bano v. Union of India [2017 (3) KLT SN 67 (C.No. 87) SC = (2017) 9  SCC 1]
the Hon’ble Supreme Court declared the practice of Triple Talaq as unconstitutional holding that it was arbitrary and violated the fundamental rights of Muslim women.The above Judgement called for attention to the urgent need for a Uniform Civil Code to ensure gender justice and equality, highlighting the shortcomings of personal laws that discriminate against women.

In Joseph Shine v.. Union of India (2017 (4) KLT OnLine 2218 (SC) = (2018) 2 SCC 189)
the Hon’ble Supreme Court struck down Section 497 of the Indian Penal Code which criminalised adultery for men but not for women declaring it as unconstitutional being discriminatory and violating the right to equality.  In the above Judgement, the Hon’ble Supreme Court emphasized the principle of equality and underscored the need for uniform laws that do not discriminate based on gender or religion.  

As of now, India does not have a Uniform Civil Code implemented at the national level.  Over the years, the Central Government as well as some States have made certain efforts towards the implementation of the Uniform Civil Code.  Special Marriage Act, 1954 was enacted to provide a secular alternative in marriages.  It lays down provisions for civil marriage for the people of India and all Indian National in Foreign Countries, irrespective of religion or faith followed by either party.  The Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956 are 4 Acts enacted under Hindu Code Bills seek to codify and bring uniformity in personal laws within the Hindu community.   

It must be emphasized that implementation of the Uniform Civil Code will bring  uniformity to the Country, it will uplift women and oppressed religious communities deprived of their rights. Today, Uttarakhand and Goa are the only two Indian States where the Uniform Civil Code is implemented.   It is a progressive step towards achieving equality and eliminating discriminatory practices based on religion.  It will promote national integration and simplify the legal system.  The objective of Uniform Civil Code is One Nation and One Law.

Thanking you.

Beyond Measure:
The Incomparable Loss of a Child in Road Accidents

(By A.V.M. Salahuddeen (Kecheri), Advocate, High Court of Kerala)
E-mail : avmsalahudden@yahoo.in,       Mob. 9447024012

In road accident cases where children tragically lose their lives, calculating fair compensation for their families becomes a difficult and complex task. Children have often viewed as the hope and future of their families. Today, most parents have just one or two children, so losing them is even more heart-breaking as it destroys their hopes and dreams.

When children between the ages of 1 and 15 die in road accidents, the judicial system appears to struggle with assessing adequate compensation for dependency. This difficulty arises primly because children, unlike adults, do not have an income. Compensation for dependency in motor accident cases is generally based on the financial loss suffered by the legal heirs or dependants of the deceased and typically the compensation is calculated based on the income of the deceased at the time of the accident. As a result, determining the income of the children who tragically lose their lives in accidents becomes a crucial factor in assessing the compensation.

How should the income of children be calculated in motor accident compensation cases? In such cases, the courts generally classify children in to age group of 1 to 15 years. Even within this range, children are often divided into two groups: Those between 1 and 6 years and those between 6 and 15 years (2019 (4) KLT 39 - National Insurance Co. Ltd. v.Assainar). Let us first discuss the case of children in the 1 to 6 years age group.

Children between the ages of 1 and 6 are usually the cherished offspring of their parents, who have not yet begun formal schooling. It is impossible to predict what heights these children might reach as they grow older. However, when such young children lose their lives in a motor accident, the compensation amount must still be determined for their parents. For children in this age group, lump sum compensation is normally awarded by the courts. In today’s world, most parents choose who have only one or two children, investing all their hopes and dreams in them. In light of this, it is crucial to provide substantial compensation when children tragically lose their lives in motor accidents.

It is impossible to predict what children will become in future once they grow up and complete their education. However, when certain children show exceptional academic ability or talents in sports and arts, their parents and others naturally hope that they will achieve great success in life. If such gifted and talented children lose their lives or permanently disable in a motor vehicle accident and their legal heirs can prove their abilities in the court and they should entitled substantial compensation (2014 (3) KLT Suppl.105 (SC) - Mekala v.. Malathi. M. & Anr.). Similarly, children who do not show much promise in their early years can still develop into individuals with considerable earning potential. Therefore as a general practice, when minors lose their lives in a road accident, a hypothetical income should be assigned to them, which can be increased progressively over time and the compensation should be calculated accordingly.

It is unfortunate that today, when a daily wage worker dies in a road accident, even their presumed income is higher than what is typically considered for a talented child in similar circumstances. Therefore, when a child’s abilities cannot be confirmed, a fair method at least to calculate their notional income for compensation must be applied as shown in the case of Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. case (2011 (3) KLT Suppl.80 (SC).

In motor accident cases, compensation is typically awarded to the dependents of the deceased. However, when minors lose their lives in such accidents, it is the rightful claimants of the children, usually their parents, who are entitled to compensation. The Apex Court held that in case of the death of children, the parents are entitled to, as a general rule, the present value of the prospective services and pecuniary benefits reasonably expected from them, by way of compensation (1970 ACJ 110, C.K.Subramonia Iyer & Ors. v. Kunhikuttan Nair & Ors.). In these situations, the compensation awarded to the claimants should be more substantial than what would be given to regular dependents. Therefore when minor children die in road accidents, the calculation of the compensation amount for the claimants must use the multiplier method.

To determine the compensation, the notional income of the minor should be considered, much like the presumed income of an adult by adding future prospects and a higher multiplier (i.e., 18) to calculate the compensation. The Supreme Court’s judgment in Ramachandrappa case can serve as a guide when determine the notional income of the injured or deceased. If it can be proven that the deceased child was exceptionally talented academically or otherwise, the compensation amount should be calculated using an income figure higher than that is specified in Ramachandrappa case. Otherwise, it would be an injustice to the child and their grieving parents.

Currently, there is no consistent standard in court rulings regarding compensation for minors and many judgments result in arbitrary and insufficient amounts being awarded. The lack of a proper benchmark had led to unfair compensation in numerous cases. Although rulings like the one by Hon’ble Mr.Justice P.B.Sureshkumar in 2019 (4) KLT 39), National Insurance Company Ltd. v. Assainar, have aimed for fairness, they often still result in compensation amounts that fall short and fail to truly capture the extent of loss experienced. Thus, when minor children tragically die in road accidents, the compensation awarded to their claimants should be just and on par with what would be awarded in cases involving adults.

Designation as Senior Advocate : Myths and Realities

(By Philip Mathew, Advocate, High Court of Kerala)

E-mail : advphilip@hotmail.com,  Mob. 9447636500

“For promotion cometh neither from the east, nor from the west, nor from the south. But God is the judge: he putteth down one, and setteth up another.”                                                                                                                     --  Psalm 75:6-7

The word, Advocate comes from the courtroom parlance. From Latin word, “advocare”,to “add” a “voice”. To advocate is to add a voice of support to a particular cause or person’s cause of action. An advocate is anyone who adds that voice by representing another person in court, or by supporting or working towards a particular course of action for the redressal of the grievance of another person.

 “Senior Counsel” title  is still used in many common wealth countries including India instead of  King’s Counsel or Queen’s Counsel as the case may be in UK . The countries like India have chosen Senior Counsel/Senior Advocate which is a name without monarchical connotations. The nomenclature of the legal profession in US is totally different in this respect.

In England, the admission of lawyers has been regulated since the middle of the 13th century. In the late 13th century, three critical regulations were adopted – (i) the Statute of Westminster I, Chapter 29 (1275); (ii). The London Ordinance of 1280; and (iii) the Ordinance of 1292. During the medieval period, further regulations were enacted, called the Statute - 4 Henry IV, Chapter 18 (1402) and the Ordinance - 33 Henry VI, Chapter 7 (1455). In addition, Judges have always used their inherent power to control the admission of lawyers and check their misconduct in the legal profession.

Thomas Wright says in “Political Songs of England”,

                  “Attorneys in country, they get silver for naught;

                  They make men begin what they never had thought;

                  And when they come to the ring, they hop if they can.

                  All they can get that way, they think all is won for them with skill.

                  No man should trust them, so false are they in the bile.”

The earliest traces of legal profession in India go back to the establishment of First British Court in Bombay in 1672 by Governor Aungier. The admission of attorney was in the hands of Governor in Council. Then came ‘Mayor’s Court. Under the Charter of 1726,
three Mayor’s courts were established in the three presidency towns, Bombay, Calcutta and Madras. No particular qualifications were prescribed to be a lawyer and the matter was left to the Courts. The Mayor’s  Court had the following functions : (1) Framing of rules and Appointment of Officers. (2) Administration of Justice.

During this period two principles were established related to legal profession; (a) right of an attorney to protect the rights of his client in spite of opposition from Council or the Governor was upheld for attorneys in each of the Mayor’s Court and (b) Mayor’s Court had established the right to dismiss an attorney guilty of misconduct.By the Regulating Act of 1773, three Supreme Courts , Supreme Court of Calcutta (1774), Supreme Court of Madras (1801), Supreme Court at Bombay (1822) were established. For the first time the qualification of the Chief Justice and puisne judges were prescribed. The Charter of the Court required that the Chief Justice and puisne Judges should be English barristers of at least five years of standing.By the Regulation Act of 1793, Advocates could not demand or accept any fees, goods, effects or valuable consideration from the clients over and above the sanctioned fees.The ultimate punishment for the violation of this rule was the dismissal of a lawyer from practice .

It was the Regulation of 1793 that laid the foundation of filing of vakalatnamas ( now described under Order III, Rule 2 and 4 of CPC, 1908) . Vakeels attached to one court were
not permitted to plead in any other court . Every pleader was required to attend the court regularly and punctually. Absence in the Court had to be notified to the Registrar of the Court. Failure to do so would make  an Advocate liable to fine. A pleader showing disrespect to the court could also be fined.

Under the Code of Civil Procedure, 1908,Section 2(15) only the word, pleader is defined
and it is defined as “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.
A power of attorney holder is only a recognised agent and not a pleader as can be seen from Order III, Rule 1 of the Code of Civil Procedure,1908.

The Advocates Act,1961 was enacted  by the Parliament “to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar”. Under Section 2(a) “Advocate” means an advocate entered in any roll under the provisions of this Act” while legal practitioner under Section 2(i) of the Advocates Act,1961 means an advocate or vakil of any High Court, a pleader, mukhtar or revenue agent”.

The Advocates Act,1961  makes a provision for two kinds of advocates i.e., Senior Advocates and other advocates under Section 16. However, the Supreme Court of India has, in exercise of its rule making power, has also made a provision for qualified advocate-on-record which is not followed in the same manner by the High Courts for filing the vakkalathnamas.

The Senior Advocates are distinguished from other  advocates in a few ways. Senior Advocates are designated as such either by the Supreme Court of India or by any High Court. The Supreme Court or any High Court can designate any advocate, with his consent, as Senior Advocate if in its opinion by virtue of his ability and standing at the Bar or special knowledge or experience in law, if the said advocate is deserving of such distinction. A Senior Advocate is not entitled to appear without an Advocate-on-Record in the Supreme Court or without the physical presence of another  advocate  along with him   in any other court or tribunal in India. He is also not entitled to accept instructions from the clients to draw pleadings or affidavits,to advise on evidence or to do any drafting work of an analogous kind in any court or tribunal in India or undertake conveyancing work of any kind whatsoever, but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior or another advocate. In other words, he should not have any direct professional dealings with any client. Further, under Section 23(5) of the Advocates Act,1961,(i)senior advocates shall have pre-audience over other advocates, and (ii) the right of pre-audience of senior advocates inter se and other advocates  inter se shall be determined by their respective seniority. However, this right of pre-audience is seen ‘more honoured in the breach than the observance’.

The Hon’ble Supreme Court inMathews.J. Nedumpara & Ors. v. Union of India & Ors. reported in (2023 KLT OnLine 1873 (SC) = (2024)1SCC1) held that that the practice of designating seniors in the constitutional courts is based on intelligible differentia and standardised matrix of merit. Affirming the relevant provisions of the Advocates Act,1961 the Bench said that the process of designating senior advocates is “not based on artificial or arbitrary distinction” and is aligned with the age-old tradition of lawyers assisting the court in the process of evolution of law and jurisprudence.

Earlier, Madurai Bench of the Madras High Court S.Lawrence Vimalraj .. Petitioner v.The Registrar (Judicial), High Court of Madras, Madurai Bench, Madurai - 623 023
(W.P.(MD)No.27523 of 2022)held that “It is clear that Section 16(2) of the Advocates Act clearly emphasis, firstly, that it is a distinction conferred and not something that comes about automatically upon achieving known or predetermined standards. It is a privilege based upon the opinion of the Court considering ability, standing at the Bar or special knowledge or experience in law. Thus, it is a subjective decision though based on objective considerations.”

The rules framed by the Bar Council of India under Section 49(1)(gg) of the Advocates Act, 1961, prescribe the same dress for all the advocates irrespective of whether they are designated Senior Advocates or other advocates which  is as follows:

Chapter IV

Form of dress or robes to be worn by advocates

[Rule under Section 49(1)(gg) of the Act]

Advocates, appearing in the Supreme Court, High Court, Subordinate Courts, tribunals or Authorities shall wear the following as part of their dress which shall be sober and dignified;

I. Advocates other than lady advocates:

1. (a)a black buttoned upcoat, chapkan, achkan, black sherwani and white bands with Advocate’s gown, or

(b)a black open breast coat, white shirt, white collar, stiff or soft and white bands with Advocates’ gowns.

In either case wear long trousers (white, black, striped or grey) or dhotiexcluding Jeans.

II. Lady Advocates:

2. (a) Black and full or half-sleeve jacket or blouse, white collar, stiff or soft and white bands with Advocates’ gowns;

White blouse with or without collar, with white bands and a black open breast coat.

(b)Sarees or long skirts (White or black or any mellow or subdued colour without any print or design) or Flare (white, black or black-striped or grey) or Punjabi dress (Churidar - Kurta or Salwar - Kurta with or without dupatta) (white or black) or traditional dress with black coat and bands.

Wearing of Advocate’s gown shall be optional except when appearing in the Supreme Court or in  High Courts.

iv. Except in Supreme Court and High Courts during summer, wearing of black coat is not mandatory.

It may  be noticed from the above rule, that no special dress is prescribed for Designated Senior Advocates. However, Senior Advocates by convention and by practice wear a different gown which is distinct from the normal gown worn by all other advocates. They put on Queen’s/King’s  Counsel gown, although they are not Queen’s/King’s  Counsel, in order to make their presence felt by wearing a  slightly different pattern in their gown and coat and mainly to impress other advocates, courts and clients that they have got a seal of better recognition from the High Court or Supreme Court. The coats or jackets decorated with frills and fineries with double back and arms flowing add to colour of their verbal presentation of the case before the Court and to make thereby an impression by this  external outfitting. As in Shakespeare’s Hamlet, Polonius tells his son Laertes to dress well because “apparel oft proclaims the man”.

Coming back to Kerala,  following the Judgment dated 12-05-2023 of the Honourable Supreme Court of India inMs. lndira Jaising v. Supreme Court of India in Writ Petition (Civil) No.454 of 2015 (2022 (3) KLT 744 (SC)), the High Court of Kerala amended the Rules relating to designation of the Senior Advocates and made the same on a  on points based system  except in cases where the Full Court by consensus may confer the designation of Senior Advocate, suo motu, on any advocate otherwise eligible, if in the opinion of the Full Court, he/she is a person of exceptional quality, eminence and has special expertise in any field of law.

The points based system to be applied in other cases are (i) where the name is proposed by a sitting Judge or (ii) recommended by two designated senior advocates or (iii)by one’s own application and  points are awarded separately checking   the number of years of practice from the date of enrolment, number of reported judgments of the applicant and the applicant’s involvement in the public interest litigation , domain expertise of those who are not general practitioners of law, publication of articles and teaching assignments in law colleges and universities and upon testing the personality and suitability on the basis of the performance at the interview and it will also be borne in mind of the Selection Committee whether the Applicant is a first generation lawyer. But no points are awarded specifically on that score. Unfortunately, academic distinctions achieved and the higher qualifications like Master’s Degree(LL.M) and Doctoral Degrees and Post Doctoral studies undertaken do not find a place in the points based system. It appears to be similar to the points based system for   grant of visas to the aspiring applicants from India  by some countries like UK, Canada and Australia for  work-permit and immigration purposes.A re-look at the presently followed  points based system is highly desirable as many beneficiaries therein are likely to remain grounded without a take-off.

The writer of this article had in the year 1988 had opportunity to have a lively conver-sation with Sri.Ashok Desai  who was already by then a Senior Advocate with a  large and impressive practice at the High Court of Bombay before he moved to Delhi in the year 1989 and later went on to become the Attorney General of India. He had come to Chennai to appear before the Company Law Board for a Mauritian based company which had some investment issues with an Indian company. During the lunch break time, as I was sitting near his side at the Court hall during the lunch recess, he asked about me and from where I am coming and what matter is mine before the Company Law Board, etc. Out of my curiosity, I asked him since he was a Senior Advocate how one could aspire to become a designated Senior Advocate and how long one should wait for. His answer was simple. You need not wait for a Senior Designation and when you are confident and feel that you are a senior advocate, you have made yourself and the rest is only peripheral. The conferment of senior designation is only a post recognition of your merit already acclaimed by the bar and that you have already achieved by then. If the Bar does not recognize you as a Senior, what difference the designation would be able to bring if it comes as a largesse from the grantor, namely, the High Court or the Supreme Court. It sounded me very true. As a Senior Advocate, unless you are briefed by other advocates, not by juniors of your own office, you will tend to lose your relevance as a Senior Advocate. If one wants to become a true senior counsel, it requires lifelong dedication, hard work and a passion for innovative legal learning and thinking  since the success of a lawyer is considered as a life-time achievement. As Napoleon Hill said, the way of success is the way of continuous pursuit of knowledge. A Senior  Advocate, if he on that score lags behind other ordinary advocates, leave  alone his peers in the elite club of senior advocates, will soon run the risk of losing his reputation that he rightly or otherwise claims as a result of his designation as a senior advocate. He will make the bar and the bench to remind the blue jackal story from Panchatantra Tales proving his designation as a Senior Advocate to be a disaster for himself.

Times have changed. The greater and better access to the new technology coupled with rapid technological advances with which the new generation of lawyers are blessed  compared to the lawyers in the middle age and old age group and  the gap of legal knowledge have got narrowed down to a thin and gradually disappearing dividing line. There is not much difference between a present day law graduate from a National Law School in India with his almost likely acquisition of a post graduation in law from a prestigious Indian or foreign institution/university  and a lawyer, though having good number of years to his credit at the bar but who had no such background and facilities when he resumed his practice, years back. It is like the present day university professors who find themselves in an unsavoury and awkward situation to realize that the present day students have stolen a march over them in knowledge content and its updation  thanks to the new technology available to them. To find oneself in the special costumes of  a Senior Advocate standing before the court among the flock of ordinary advocates is an appealing thought to oneself   but  losing a court room battle in a good meritorious case against a better equipped ordinary advocate  will certainly take away the sheen out of the silky gown that he wears.

KLT Exclusive Interview

In Conversation with Former Justice Alexander Thomas,

Chairperson, Kerala State Human Rights Commission

(Interviewed by Adv. Ashly Harshad, Assistant Editor, KLT)

Justice Alexander Thomas, a distinguished legal figure with deep insights into constitutional philosophy, reflects on his transition from active law career to retirement as a Judge of Kerala High Court, offering a rich philosophical take on this new chapter. Now serving as the Chairperson in the Kerala Human Rights Commission, he shares his reflections on justice, human rights, and the future of our constitutional democracy.

Q.  “The ship has come to a halt, signaling my turn to step ashore at the harbour. A fresh adventure beckons me, and the next ship eagerly awaits my embarkation. The juncture has emerged for you to carry on with this voyage in my absence and I entrust you with its continuation, with pride and confidence. Once more, I want to convey my deep appreciation for this remarkable expedition and the honour of partaking in it alongside all of you. I truly hope that the different journeys ahead, for both me and all of you, will be brimming with even more adventures and wonderful experiences. Farewell and onward to new horizons!” I would like to start with these heart touching words from your farewell speech as a Judge of High Court of Kerala. With a beautiful metaphor you have explained a transition in life. Can you describe this time of your professional career where you are experiencing a significant shift from a High Court Judge to the Chairperson of Kerala State Human Rights Commission. How do you handle the transitions in your life and what lessons did you take away from these experiences?

I may initially deal with your question regarding my transition from active participation in the Bar and the Bench to the stage of retiral life. I am tempted to see it from the prism of “emptiness of fullness” and the “fullness of emptiness”. I think, it was in the 2nd Century that the Buddhist Acharya, Nagarjuna, taught that emptiness (“Sunyata”) is not nothingness, but the very foundation of everything and that it is because of this emptiness, that everything is possible. It is said that the “fertile void” is the idea that moments in life marked by massive transitions, emptiness, loss and confusion can also be moments of wonderful possibilities.

Recently, I just glanced through an interesting article in a book published by Routledge, which speaks about the fullness of emptiness. It may not be out of place to mention about a poem that is being circulated in the social media, which among the other things, says something like this: -

“--------Time does not always need to be filled,

Feel the fullness of emptiness,

the vastness of the silence,

the sheer life in your unproductive moments----!”

So, my takeaway, during this period of my transition is that when you think that your hands are full of responsibilities and duties, then beyond that there is emptiness. So, also, when you really feel that you face emptiness, then it is about time to enjoy its fullness.

Now let me deal with your query on my new assignment. The Human Rights Commission is a quasi-judicial body entrusted with the task of protection of human rights and determination of issues of violation of human rights. From my limited experience of about 6-7 weeks, I feel that a different perspective and framework is required in this task, compared to the traditional adjudicatory mechanism of courts. The vast majority of complainants are from the marginalised peripheries of our society, and they often appear in person, without legal representation. At the same time, one should be well grounded in the theoria and praxis of human rights discourse, and a balanced understanding of both western centric and Indian jurisprudence on human rights is called for. The acclaimed treatises of Prof. Upendra Baxi, namely, “Future of Human Rights” and “Human Rights in a Post Human World” could be a beacon light to navigate the rough seas of human rights discourse. I am also reminded of the view of Prof. Upendra Baxi, the eminent jurist, who has posited “jurisprudence” vis-à-vis “demosprudence”. He conceives that the legislature, the executive, the judiciary, the academy, the profession and various related institutions, as trustees of enlarged Government, that is constitutionally obligated in building a society and citizenry, where there is balance and harmony between the Fundamental Rights and the Directive Principles of State Policy. He calls this democratic adjudication, “co-governance” of the nation as “demosprudence”. Surely, it will take a long time in this journey. Statutory bodies like Human Rights, can also play their small, but vital role, within its demarcated space, in this process.

Q. You’ve had an interesting academic journey, starting with an M.Sc. in Physics at CUSAT and eventually transitioning to law. What inspired you to make such a significant switch in your career path? Did your involvement in student activism during Cochin University days play a role in influencing this decision? It’s been said that you were the only science student who would join the protests in the University?

Due to delayed publication of my B.Sc Physics examination results in September 1982, I could not secure admission for LLB course in the Delhi University’s Law Faculty, where the course starts by middle of July. At Cochin University, by the sheer force of circumstances, I had participated in a student movement, as many of the grievances of the student community regarding hostel facilities, etc., were not effectively redressed. More than student politics, it was these genuine grievances that made me involve as part of the student protest movement. Incidentally then, I came to know of a few of the student leaders, who were ardent followers of Late Shri.Jayaprakash Narayan (J.P.). I was not part of any student organization having political affiliation. I was later elected to the council of the Cochin University Students’ Union, though I lost the election to its chairmanship, by a few votes. I had actively participated as its councilor and at my initiative, a two-member special committee consisting of myself, and another senior student was formed to examine and report on reforms to the University union, especially its elections.

To effectively answer the other part of your question, I may say that this little fire or concern for freedom of others were kindled in me, as a young teenager studying in Std.IX, when I came to know that eminent elderly national leaders like J.P., Shri Morarji Desai and a host of others were arrested and detained due to the declaration of internal emergency in June 1975. Since then, I became an avid reader of National affairs and in spite of my SSLC examination, I had closely followed the historic parliamentary elections in March 1977 and the events since then. I have never been involved in any political party. But I have always been a concerned observer of the polity, society and economy of our great country. It is this interest and concern in the freedom and civil liberties that influenced my decision to join law degree course in Delhi University. Looking back, I think that being this “outsider” observer of the polity and society, has helped me in understanding the constitutional perspectives of
Dr.B.R.Ambedkar, who has propounded that both justice and democracy, have their respective Trinitarian components namely, political, social and economic.

Q. How do you view the role of student activism in educational institutions? In light of the recent violent protests in the neighbouring country and those we’ve witnessed here a few years ago, do you believe students should prioritize their studies over political engagement, or is there value in their involvement in such movements?

On issues such as student activism, one cannot have a dogmatic or straight jacket approach. But I may say that the conventional uncritical approach to student politics that we have seen in the last 50-60 years after independence, may require calibration and modulation. This is due to the needs of the present times, when we see fast changes in the knowledge sector, especially not only in science and Technology, but also in social sciences and humanities. Moreover, the problem of unemployment faced by the youth is very acute. But I equally feel that any re-calibration of perspectives, should not lead to extreme responses. Our youngsters are also responsible and ambitious, and I think wide ranging consultation with various stake holders is required.

On the second part of your query, you may be referring to the recent incidents in Bangladesh. On this, I need only quote the words of the Hon’ble C.J.I. Dr. D.Y. Chandrachud, who said regarding developments in the neighbouring country, that we should remind ourselves of the precious value of our freedoms and liberties and we should not take it for granted.

As regards the student engagement issue we have to bear in mind that possibilities of abuse of freedoms may not be a justification for onerous restrictions thereon. We all know that many youngsters and even lawyers had given up their freedom to fight for our freedom struggle. Former C.J.I., late Justice P.N. Bhagawati, after graduating in Mathematics had courted arrest during the Quit India movement in 1942, at the tender age of 21 and had even remained underground for 4 months. It was thereafter that he joined for his law studies.

In the present times, we have to find out a “madhyamika”, middle path for regulatory norms on student engagement in parties. True that political parties, due to partisan interest, may have their own agenda to control student politics. Violence and extreme partisanship should be avoided. As a student of B.Sc. at the University College, Trivandrum, one could see extreme violence in student politics. Strikes were the order of the day. The student involvement in politics up to the plus two level and at the University level, may require differential treatment. But to say that there is no value for student engagement in “public sphere” is to shut our eyes to the reality of the role of the polity and society in shaping our lives. In the times to come, it may be more appropriate to think in terms of university students’ engagement in the public sphere and not merely in politics. By “public sphere” I have in mind, the concept of the German Philosopher, Jurgen Habermas. He has conceived public sphere as the area in social life, where individual can come together to freely discuss and identify societal problems and through such discussions, influence action by the State and polity.

Q. You read law at the University of Delhi and enrolled as an advocate in the year 1988. Beginning your legal career under the guidance of the esteemed Senior Advocate and former Advocate General, Late Sri. M.K. Damodaran, must have been a formative experience. Could you share any memorable experiences or lessons from those early years at bar that have shaped your journey in the legal profession?

Though I initially wanted to join the chamber of a civil lawyer, fate or synchronicity destined otherwise. I joined the law chamber of the senior lawyer Shri. M.K. Damodaran, who was one of the leading doyens of the criminal bar and was also having wide and varied types of cases in the field of public law. His relationship as my mentor was enduring and continued for a long time, even after I had set up independent practice. Right from the beginning, he had entrusted various cases to me for drafting and even for arguments in the courts. Thereafter, when he was appointed as Advocate General of the State in May 1996,
I had the privilege of being initially appointed as Govt. Pleader and then as Sr.Government Pleader. There was a great element of comraderie and fraternity amongst the team of lawyers in his law chamber and amongst the team of state law officers, during his tenure as Advocate General. Three lawyers who were in both these teams, namely, Justice V.K.Mohanan, Justice C.T.Ravikumar (who was later elevated to the Apex Court) and myself, were later appointed as Judges of the High Court. This was indeed a wonderful and thrilling period in both my personal and professional life. The wide ranging and challenging experience gained in working under my senior had tremendously helped in moulding my professional career. His sad demise in August 2017 was a great loss to me. May I offer my Pranams to him.

Q. You embarked on a different journey after being appointed as an Additional Judge in 2014. What were some of the significant challenges and milestones during this period?

I was allowed different subject jurisdictions. At the Single Bench level, it was mainly criminal matters, company matters, writ matters in land laws, local bodies etc. The work in criminal jurisdiction was very interesting and challenging, whether it was criminal miscellaneous case, bail matters, criminal appeals or revisions. I tried my level best to not only apply the laws to the factual scenarios, but also to assess the truth of the matter, to the extent judicially possible. One of the most challenging times that all of us faced was the Covid pandemic period. Since the lawyers were then facing a steep fall in their incomes during those times, I gave top priority to ensure final disposal of maximum number of writ cases, so that the lawyers could secure their fee. Due to the active co-operation of both sides, especially the law officers and the standing counsels, I could succeed to a significant level in that regard.

The Division Bench roster allocations was mainly service matters, preventive detention and criminal appeals. I have endeavored my level best. But it may not be out of place to mention that the Division Bench presided over by me, could make a vital initiative for introducing mitigation evaluation of death row convicts, at the initial appellate stage, instead of waiting till the death sentence references are taken up for final hearing.

Q. Throughout your tenure, you have been recognized for your independence and humanist approach. During your tenure as a Judge of the Kerala High Court, were there any moments or cases that deeply moved or impacted you? Could you share any such experiences? In your view, is the judiciary truly the last bastion of democracy? Are civil liberties genuinely being protected, or do they suffer under the current system?

I do not want to make any comments on your opinion of my independence and humane approach, as it is for the Bar to give their verdicts. As the saying goes, you do not enter the same river twice and the river of time has flowed.

Looking at the latter part of your question from a different perspective, during the 1950s to early 1970s, we had eminent lawyers like Shri M.K.Nambyar, who argued key constitutional cases such as AK Gopalan and Golaknath, wherein the doctrine of implied limitations on constitution amendment powers was advanced. He is stated to have drawn up the lead petition in the Kesavananda Bharati case, though he could not appear personally due to ill health. From the mid-seventies, we know that it is erudite and independent lawyers like Shri. Nani A. Palkivala and a host of others, who could defend our freedom and constitutionalism in vital litigation, including Kesavananda Bharati, Minerva Mills, etc. The attempts to review the Kesavananda Bharati doctrine during emergency times, were nipped in the bud by Shri Palkivala, who straddled like a colossus in our legal system. After demitting office Justice H.R. Khanna praised Shri Palkivala’s advocacy in Kesavananda review case and remarked that “It was not Nani who spoke. It was divinity speaking through him”. Of course, in many cases, there were judges like Justice H.R. Khanna, who was part of the majority decision in the historic Kesavananda Bharati case, laying down the basic structure doctrine and had also rendered the historic minority decision in ADM Jabalpur case even though the majority view sadly held otherwise. There were a host of learned Judges in various High Courts, who gave pro freedom verdicts in habeas Corpus matters of political detenues, during emergency period. At the end of the day, in adversarial system, only a proficient and independent Bar can assist the Bench in arriving at correct and just decisions. So, I would firmly say that the last bastion of civil liberties and freedoms determined by the judicature is the enlightened and independent Bar.

Having said that, I would go further and propose that the historic parliamentary election in March 1977 and various key elections thereafter would categorically go to show that the last bastion of our freedoms and constitutional democracy is none other than the most backward, dispossessed and deprived sections of our citizenry. They appear to have firmly retained and embedded in their subconscious and unconscious psyche, the resolve and pledge of “We, the People of India” adumbrated in our Constitution. But each one of us have to imbibe the inner fire and zeal of our freedom fighters and martyrs who sacrificed and fought for our country’s freedom.

As regards the third part of your question, we can note from some of the significant public discourses and even recent observations of the Apex Court, that there may have been some let up in judicial vigilance in cases affecting liberties in UAPA, Money laundering cases, etc. Some of the recent verdicts of the Apex Court are clear pointers to a pro-active course correction in such matters, giving necessary guidance to various Constitutional Courts and the District Judiciary. A vigilant and independent Bar is highly necessary in that regard.

Q. Dr.B.R.Ambedkar envisioned social democracy as a way of life founded on liberty, equality, and fraternity, warning that without it, political democracy that we have built labouriously could crumble. Has our judiciary been instrumental in advancing this vision of social democracy? In your opinion, how far are we from achieving this goal, and what challenges remain on this voyage?

You are right in your observation about Dr. B.R. Ambedkar. While developing ideas of constitutional theory and democracy, he proposed in “Annihilation of caste” that a society based on liberty, equality and fraternity is another name for democracy and that democracy is not merely a form of government, but is primarily a mode of associated living, of conjoint communicated experience. It is an attitude of respect and reverence towards fellowmen. He propounded that liberty, equality and fraternity are not to be treated as separate items of a trinity and they form a union of trinity and to divorce one from other is to defeat the very purpose of democracy. He also proposed that democracy consists of the trinity of political democracy, social democracy and economic democracy. He equally asserted that justice is to comprise of the trinity of political justice, social justice and economic justice as enunciated in the preamble to our Constitution. These three trinities consisting of the union of equality, liberty and fraternity, along with the trinitarian elements of justice and democracy should go hand in hand and in tandem so as to meet the objective of the right balance and harmony between fundamental rights and the directive principles. These are not mere utopian ideas. To the skeptics and critics, our constitutional objectives may seem to dwell in the realm of the unattainable. Yet our constitutional founding mothers and fathers remind us that the art of constitutionalism and democracy lie in the daring to challenge the impossible driven by our deep unquenchable thirst for the infinite that defines our humanity. The only alternative to success in our constitutional democracy is nothing but deprivation and dispossession of the millions of the vast majority of our people, at the altar of the so called “progress” of a few leading to catastrophic consequences. Attainment of freedom from imperial yoke by non-violent means, then appeared to be an impossibility. But our national leaders with their perseverance, could achieve it.

It was during the days of Mandal agitation and hearing of the Mandal case, that I started some readings on social justice and social democracy, by eminent thinkers like Dr. Ram Manohar Lohia and much later, of Dr. B.R. Ambedkar. Most of the leading case laws of our constitutional courts up to the 1980s were in relation to fundamental rights and liberties, touching upon political democracy. Thereafter, with the advent of social action litigation in the eighties and the Mandal cases in the early nineties, we have made significant developments in the realm of social democracy and social justice. This is more so, now, as there is overall unanimity in the various shades of our socio-political spectrum, about the relevance of Dr. Ambedkar’s socio-political and economic philosophy, in the times to come. No doubt, we shall have to make substantial strides in political democracy and social democracy. But we have not given much attention to the idea of economic democracy, which is larger and wider vision than conventional statist or socialistic ideas that have hitherto been practiced in various parts of the world. I feel that it is high time for the various stakeholders in our polity and economy to seriously ponder over Babasaheb’s ideas on economic democracy. After all, most of the people may not be aware that Dr.Ambedkar was an expert in Economics and had taken two doctoral degrees in Economics from London School of Economics, UK and the Columbia University, USA on complex issues of national and international economy.

The future action that we must strive to achieve in our society, polity and economy should be the radical conveyance between the vision of Bappu, the Mahatma and the ideas of Babasaheb, the architect of our Constitution. A synergetic convergence between these two visions have not taken place to the requisite level, keeping in mind the serious problems faced by the deprived and dispossessed. Apart from political democracy (which is democratization of the polity) and social democracy (which is democratization of the society), we emergently need requisite economic democracy (which is democratization of our economy).

The Supreme Court has categorically held in landmark decisions that the right balance between fundamental rights and directive principles of state policy, is also an inseparable part of the basic structure of the Constitution. Here, our constitutional courts, initially have rightly shown restraint and caution in adjudicating economic matters, as it may have overlapping areas on the policy domain. Courts normally, proceed with caution in spite of proportionality principles, as we are in the infancy stage in such aspects. We could gain quite a lot if we examine other jurisdictions like South African Constitutional Court, European Court at Luxemburg, some of the leading Latin American countries, etc., regarding jurisprudential developments in socio-economic rights.

But I am sure that gradually and imperceptibly, our constitutional courts will develop the right jurisprudential tools in tackling many complex issues in the times to come. At this stage, the responsibility lies primarily with the polity, executive, legislature and other related institutions, including local bodies, statutory bodies invested with powers in socio-economic matters and even the co-operative institutions. It is here that we have to see the prophetic vision of the great Indian jurist, Prof. Upendra Baxi, who has conceived the idea of “demosprudence” as the process of democratic adjudication and co-governance of the nation. It will be challenging and exciting times for various stake holders, including judiciary and the citizenry in this larger constitutional game of co-governance.

Q. Your approach to the bench has been widely praised for its compassion and relief-oriented mindset, where you ensure that the litigants’ sufferings are alleviated even when their cases might not be presented perfectly. Even when a representation is disposed of for reconsideration it was done with substantiated reasoning. How do you strike a balance between being empathetic and maintaining the legal rigor to move by the rule book? Would you like to share an example of a case where you had to navigate this balance?

The right balance of theoria and praxis can substantially aid a Judge in ensuring not only empathetic approach to the sufferings of the litigants with the rigor to go by the procedural and substantive laws. If empathy with the suffering is divorced from this professional rigor, then it will lead to serious problems in our adjudicatory process. My experience is that if one has the determination to achieve both these objectives of empathy and rigor, then it is not very difficult to develop it on a case-to-case basis. Logical thinking and intuitive approach also may have to go hand in hand. As viewed by Dr. Iain McGilchrist, the renowned Psychiatrist, Neuroscientist and Philosopher, we should constantly aim to have the harmony between the left hemisphere and right hemisphere of the brain.

Q. Echoed by many in the legal community, your affable nature, consideration, and dedication to nurturing young lawyers have fostered a welcoming and educational environment in your courtroom. How critical do you consider this mentorship for the future of the legal profession, and what is your perspective on the strength of the Bar? Given your belief that the Bar, rather than the judiciary, is the last bastion of Indian democracy, what underlies this conviction?

One of the striking features of the Bar in our State and in the High Court, is that due to various socio-economic reasons, we have not developed the law firm culture, and we still have the traditional bar. But, at least, after the 2000’s, we generally, see the breakup of big law chambers of senior practitioners and junior lawyers stay with a senior practitioner hardly for a year as so: It is not uncommon to see an independent practitioner with 2-5 years of standing, having juniors. The majority of the law offices may be in this manner. This has seriously affected the tutelage and experience that a junior lawyer used to get on account of 8-10 years of association with a senior practitioner. Of course, times are different, and we cannot expect junior lawyers to work with low remuneration. But we have to seriously address the lack of tutelage in the present system. Judges can take a proactive role in this regard and efforts should be to equip the juniors to bridge over these deficiencies. We have to bear in mind that a proficient bar is highly necessary in our legal system.

Q. As the new chairperson of the Kerala State Human Rights Commission, what are your main priorities for advancing human rights, and how do you plan to increase public awareness and ensure better access to justice for vulnerable and marginalized communities?

One of the prime areas that may need more focus, is for the human Rights Commission to promote and undertake research in the field of human rights. There are serious issues of funding and lack of research personnel. In the short term, one should focus on research activities to be undertaken by the Commission along with universities and academic institutions. Another prime area of attention should be development of mechanisms to renew the safeguards provided by the laws and the Constitution for protection of human rights. Spreading public awareness of human rights and encouragement of efforts of
non-governmental bodies in the field of human rights, should also be focused.

Q. Your family has been a consistent source of support throughout your career. How has their support influenced your professional journey?

I have come to realise in the six decades of living that life is essentially a bundle of relationship and ordinarily, the most enduring one is family relationship. My wife, Suma was well qualified and meritorious to secure employment or opt for research. But she sacrificed her ambitions to take care of the family. The strong and enduring support given by her, was one of the prime factors in the growth of my professional career. The love and support given by my sons, Kevin, Kenny and Kim and my daughter-in-law Meera also tremendously helped me.

History Repeated

‘State’ – as Sovereign as well as Proprietor of the Mineral

By M.K.S. Menon, Advocate, Supreme Court of India
      E-mail : mksmenon@gmail.com         Mob. 9810240999

A critical analysis of the recent Supreme Court judgment of 9 Judges’ bench in Mineral Area Development Authority v. Steel Authority of India (2024 KLT OnLine 1945 (SC), Civil Appeal Nos.4056-4064of 1999 dated July 25, 2024.

1. INTRODUCTION

Recent judgment by the 9 (nine) Judges’ bench of Hon’ble Supreme Court of India is definitely a source of relief for all the States mainly the mineral rich States like Bihar, Jharkhand, Karnataka etc. This beautifully crafted precedent, is touching almost every aspect of ‘royalty’ and ‘tax’ in relation to mines and minerals. This masterpiece resolved a conflict between India Cement Case₁  as well as West Bengal v. Kesoram Industries Ltd.,₂ by overruling the reasoning in both of them, and thereby brought out a new line of interpretation, which needs a second look. Hon’ble Supreme Court clarified that, (i) Royalty is no Tax’ and (ii) Only owner is entitled to collect Royalty. To this extent there is absolute clarity but power of taxation on mineral got confused with mineral development beyond Entry-50 of List-II and wrongly interpreted Entry-97 of List-I ‘residuary power to tax’. Means:

“Checkered  history yet to be liberated.”

BACKGROUND:

Is Royalty a Tax -

This question was a deep-rooted doubt entertained by the Indian Courts right from the date Mines and Minerals (Development and Regulation) Act 1957 was enacted because nowhere in the said enactment, a discussion appears regarding private ownership except in Section 17-A(3) where in it is stated that even the State has to pay Royalty to the private owner.  However the legislative competence of the State to enact a lawimposing tax on mineral or mineral right including Royalty was always remained as a grey area. Various Constitution Benches expressed different opinions. Major canvas was the legislative field consisting of Entry 54 of List-I qua Entry 49 & 50 read with Entry 23 of List-II. Present controversy mainly revolves around Entry 49 & 50 of List -II regarding power of the State to enact a law as ‘Tax on Land’ or is there any limitation imposed by the Central Govt. as stated in Entry 50 of List-II. More specifically, as to whether the State can make an impost on land based on the quality of the land as a mineral bearing land under Entry 49 of List -II of Seventh Schedule or on the mineral itself under Entry 50 of the same list, because the declaration under Section 2 of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter shall be referred to as “MMDR Act”) created a cloud over the sovereign right of the State to impose tax on mineral or mineral rights. Constitution Bench of 9 Judges was trying to find a permanent solution to this fluid situation.

Till independence, British Government used to exercise their prerogative right imposing land revenue as ‘share in the produce’ commuted into money value on acreage basis. They were also imposing additional Tax in the same fashion as and when minerals were operated/excavated. The usage ‘share in the produced’ led many courts to mis-interpret as ‘Royalty’ (e.g.Dalmia Cements). However in N.R.Reddy & Ors. v. State of A.P. & Ors.₃,Andhra Pradesh High Court clarified that what was claimed by the State as ‘share in the produce’ was only revenue. The said conclusion is now accepted by the 9 Judges as well. Still the difference between a sovereign exercising it’s prerogative right to impose ‘tax’ and otherwise exercising the proprietary right to claim ‘Royalty’ is still a grey area. Till passing of the Mines and Minerals (Development and Regulation) Act, 1948 followed by MMDR Act1957, State’s prerogative right was never questioned. Only when the declaration of the Central Government came under Section 2 of MMDR Act 1957 covering the entire field of mines and minerals covered by Entry 54 of List -I, the doubt regarding the extent of the restriction imposed by such a declaration started bothering the Court. Whether such a declaration brought in a restriction against the States in exercising their prerogative right under the federal system was deliberated upon repeatedly.

Present controversy started when 7 Judges in 1990 interpreted Section 30 of MMDR Act and declared that ‘Royalty is Tax’. In the case of India Cement₄ a 7 (seven) Judges’ bench took support of Section 9(3) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter shall be referred to as “MMDR Act”) and held, that by imposing cess/tax on royalty, royalty stands inflated and the State is trenching into the authority of the Central Government under Section 9 and thereby violated the declaration under Section 2, because with regards to major minerals only the Central Government is entitled to enhance royalty under Section 9(3) of the MMDR Act and the State can enhance the royalty only with regards to minor minerals₅ as per proviso of Section 15(3)(c)₆ of the MMDR Act. In effect the case proceeded on the footing that royalty is tax. It was held that by imposing cesson royalty in exercise of ‘prerogative right,it will inflate royalty and thereby violate Section 9(3) of MMDR Act. The above anomaly was sought to be clarified by 5 (five) Judges’ Constitution Bench in State of West Bengal v. Kesoram Industries Ltd.,₇ by stating that the observation in India Cement case (supra) - that ‘royalty is tax’ is a typographical error by observing as follows:

“We hold that royalty is not tax. Royalty is paid to the owner of land who may be a private person and may not necessarily be State. A private person owning the land is entitled to charge royalty but not tax. The lessor receives royalty as his income and for the lessee the royalty paid is an expenditure incurred. Royalty cannot be tax. We declare that even in India Cement it was not the finding of the Court that royalty is a tax. A statement caused by an apparent typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court.”

However, an inert analysis of the judgment in India Cement case (supra) would demonstrate that it was not a typo but was the ratio decided in the said judgment. The said controversy is now put to rest by the Hon’ble 9 (nine) Judges’ bench in the present Judgment, by holding that ‘royalty is not tax’ ₈.This conclusion was cradled and nurtured by the author and narrated in another article published in Kerala Law Times in 2023.₉

In para.266 of 9 Judge bench judgment, Hon’ble Court clarified as follows:

“…Resultantly, the payment of Royaltyunder Section 9 of the MMDR Act is paid either to the State Government or to private landowner, as the case may be.”

In Thressiamma Jacob v. Geolgist ₁₀,the Hon’ble Supreme Court had earlier consideredthe effect of private ownership and held that the private landowners of land in Malabar District of Kerala, are also the owners of minerals in their land because there was no legislation vesting mineral rights in the State. However, the question as to whether the State can claim royalty, was left open because the question as to whether ‘royalty is tax’ was pending consideration before the 9 (nine) Judge Bench. The said controversy also now stands resolved in the present judgment of Hon’ble 9 (nine) Judges’ bench, wherein under para 330 it was observed that 

“330…...Therefore royalty is relatable to the yield of the mineral bearing land as well as the income in case the minerals vest in a private person.”

1.1. General Principles of Interpretation of the judgments:

It is highly necessary to reckon the dangers of wrong interpretation highlighted by the Hon’ble Supreme Court in the judgment of Union of India v. Amrit Lal Manchanda & Anr.,₁₁.Hon’ble Court was narrating the difference between interpretation of a statute and interpretation of a judgment, wherein it was observed as follows:

“15…Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define…..”

“17…Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.”

Hon’ble Supreme Court also reproduced the following words of Lord Denning in the matter of applying precedents that have become locus classicus:

“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”

“Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”

In this regard, in London Graving Dock Co. Ltd. v. Horton₁₂, Lord Mac Dermot observed:

“The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.”

In Home Office v. Dorset Yacht Co₁₃, Lord Reid said, “Lord Atkin’s speech...is not to be treated as if it was a statute definition.It will require qualification in new circumstances.”In Megarry, J. in(1971) 1 WLR 1062 observed that “One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.” And, in Herrington v. British Railways Board₁₄, Lord Morris said that, “There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.”

1.2 Concept of Share in the Produce

In this backdrop, a cursory reading of para.51 in Thressiamma Jacob case (supra) would reveal that the Hon’ble Supreme Court never declared that State was collecting royalty during British regime but was collecting ‘tax’ as ‘share in the produce’. Para.51 in Thressiamma case (supra) reads as follows:

“…In the instant case, the State asserted its ‘right’ to demand a share in the ‘produce of the minerals worked’ though the expression employed is right – it is in fact the Sovereign authority which is asserted. From the language of the BSO No.10 it is clear that such right to demand the sharecould be exercised only when thepattadar or somebody claiming through the pattadar, extracts/works the minerals – the authority of the State to collect money on the happening of an event – such a demand is more in the nature of an excise duty/a tax.The assertion of authority to collect a duty or tax is in the realm of the sovereign authority, but not a proprietary right.”

Therefore, larger bench of Hon’ble Supreme Court in Thressiamma Jacob case (supra) never stated that ‘share in the produce’was ‘royalty’. This position also stands clarified in the 9 (nine) Judges’ bench in Mineral Area Development Authority case (supra) in the following words in para.255, as follows:

“255. The Board of Revenue recognizes the rights of Zemindars to the minerals through Standing Orders. The Standing Orders also governed the rights of the Ryotwari holders with respect to the minerals. For example, Resolution No.277 of 1888 declared that the State lays no claim to minerals in estates held on sanads of permanent settlement, enfranchised inam lands etc. Moreover ryotwari Patta lands it was declared that right of the State in minerals is limited ‘to a share in the produce of the minerals worked’, commuted into money payment, if thought necessary by Government, in like manner with and in addition to the land assessment… Thus, the colonial State did not claim subsoil rights with respect to lands held under permanent settlement, and only a limited right in land held under ryotwari pattas. The system of law continued until independence and even there after. ”

In fact, in India Cement case (supra), the 7 (seven) Judges observed in para 20 that,
“It is not necessary to refer in detail how land revenue developed in India after the advent of the British Rule. There was an appeal from the said decision of the High Court of Andhra Pradesh and this Court dismissed the appeal in State of A.P. v. N.R. Reddy & Ors. [1967] 3 SCR 28.] ” Further, the Hon’ble Court in 7 Judges observed that,

“2 1.It is, however, clear that over a period of centuries, land revenue in India has acquired a connotative meaning of share in the produce of land to which the King or the Govt. is entitled to receive. It was contended on behalf of the appellants that the impugned measure being a tax, not on share of the produce of the land but on royalty; royalty being the return received from the produce of the land,revenue was payable for winning minerals from the land. In the premises it was contended that it cannot be attributable to Entry 45 of List II of the 7th Schedule, being not a land revenue. It has, however, to be borne in mind that Explanation to Section 115(1) was added and there was an amendment as we have noted before. That very Explanation makes a distinction between land revenue as such and royalty which by amendment is deemed to be land revenue. It is, therefore, recognised by the very force of that Explanation and the amendment thereto that the expression ‘royalty’ in Sections 115 & 116 of the Act cannot mean land revenue properly called or conventionally known, which is separate and distinct from royalty.”

On account of the Section 2 declaration under MMDR Act, the entire field of legislation with regards to the development and regulation has been vested in the Central Govt. and the State is deprived of such a right. India Cements wanted to declare that MMDDR Act 1957 restricted the States from enacting a law imposing cess/tax on mineral or on Royalty. As stated earlier, unless royalty is accepted as ‘tax’, Section 9 of MMDR Act₁₅ has no role to play because ‘royalty’ can get ballooned only if it has characteristics of tax. Therefore India Cement (supra) held to be incorrect and stood overruled by 9 Judges bench. What is imposed on royalty is ‘cess’, means tax. Tax on tax alone can escalate the original levy so as to violate Section 9 of MMDR Act. Kesoram case (supra) holding that, the observation in India Cement (supra) that ‘Royalty is tax’ is a typo also held to be incorrect. The said anomaly is now settled in the judgment by 9 Judge bench, clarifying that ‘royalty is not tax.₁₆. Both 7 Judges bench and 5 Judges bench are now overruled as a new dimension is sought to be achieved, correctness of which, gave birth to another debatable question.

2. STATE’S IDENTITY AS ‘PROPRIETOR’ AS WELL AS ‘SOVEREIGN’

2.1.   Taxing mineral-bearing land

In para.288 of the Judgment, 9 Judges’ bench explained incidence of tax as follows:

“288. From the above discussion, we can derive the following principles:           

(i)   the incidence of a tax on lands and buildings will likely be on the owner or occupier’ as the case may be;

(ii)  legislature may adopt a suitable measure for levying the tax on lands and buildings under Entry 49 of List I; and

(iii)the measure adopted by legislature does not determine the nature of the tax.”

First mistake happened here when the court mentioned the word ‘occupier’. Occupier is not the proprietor or owner of the land or mineral. [Position of an occupier is discussed later part in this article]. Attention is sought to para 291 as well pertaining to the analysis of Entry-49 of List-II of the Constitution of India, 1950 (“Constitution of India”), which reads as follows:

“291….Tax on lands and Buildings under Entry 49 of List-II is often measured with respect to the income derived from the land or building sought to be taxed. The income derived from land and building is normally measured in terms of the annual value. Section 23 of the Income Tax Act provides that the annual value of property shall be deemed to be the sum for which the property might reasonably be expected to let from year to year. Thus, where a land or building is let, the valuation is based on the rent at which it is let.”

Various judgments referred to thereafter shows that the measure of taxation can relate to the actual or potential productivity of the land and in para 294 it is stated that,

“294…If the State legislature utilizes the income derived from the land as a measure to quantify a tax on land., it does not trench upon the legislative domain of Union to tax income...”

Moving forward, after discussing catena of judgments, Hon’ble Supreme Court concluded that MMDR Act does bring in any restriction on imposing a tax on land under Entry 49 of List-II of the Constitution of India. To this extent it is correct but the observation that tax can be imposed on the occupier is a debatable point.

2.2.   Measure of tax on mineral-bearing land as ‘tax on land’.

Decoupling: ‘physical decoupling’ and ‘statutory decoupling’.

Hon’ble Supreme Court proceeded as though the decoupling can take place only physically. Halsbury’ Law of England touching on the point, specifically provided that a mine can be owned or possessed independent of surface right. Hon’ble Supreme Court had already quoted with approval the said concept inShri Tarkeshwar Sio Thakur Jiu v. Dar Dass Dey & Co.In para 28 it is observed as follows:

Para 899 of Halsbury’s Laws of England (ibid) reads, thus:

“A lease may be granted of land or any part thereof, and since minerals are a part of the land it follows that a lease can be granted to the surface of the land and the A minerals below, or of the surface alone, or of the minerals alone. It has been said that a contract for the working and getting of minerals alone though for convenience called a mining lease, is not in reality a Lease, at all in the sense in which one speaks of an agricultural lease, and that such a contract, properly considered, is really a sale of a portion of the land at a price payable by instalments, that is, by way of rent or royalty, spread over a number of years”.

Tressiamma Jacob’scase (supra) also narrated a situation where a statutory decoupling of mineral right can happen when State vests mineral right alone in the State. Then the question is, regarding the pattas or sanads being issued to private persons. State can impose tax on land for agricultural purpose as long as the land is conveyed without reserving the right. Still the ownership remains with the surface owner. During British regime, tax on mineral was optional and imposed as and when thought necessary. In para 255 of the 9 Judges Bench judgment in fact accepted this in so many words as follows:

“Moreover ryotwari Patta lands it was declared that right of the State in minerals is limited ‘to a share in the produce of the minerals worked’, commuted into money payment, if thought necessary by Government, in like manner with and in addition to the land assessment…”

Then an enquiry is necessary to find out as to whether the minerals were reverted back to the Government. Through agrarian reform legislations, excess land was vested in the Government. However there are lands lying within the ceiling limit and covered by Second Proviso to Article 31-A of the Constitution. In those lands State is not the owner and the State cannot collect Royalty. In those lands which were assigned, but no reservation is made in favour of the State, then also the State cannot be the owner and cannot collect royalty. In Kerala, land vested in the State through agrarian reforms are assigned through Kerala Land Assignment Act 1960. Section 7(i) mandates that the ‘Royalties of the State’ in the land are to be protected. Form of some of the Pattas specifically contains a provision as follows:

“If minerals are found, Right of the State to Minerals are not affected”

In different sanads/pattas different usages are found. In some pattas, it is stated that “right of the State to ‘a share in mines and minerals’ and subjacent quarries are reserved and are not affected by the grant”. In this case, ‘share in the produce’ can be tax. Therefore it is dependant on the land tenure and a blanket order cannot be given. Each case is required to be considered on it’s own merits and based on the land tenure. If State is the owner and exercising ‘Proprietary right on minerals, State can impose Royalty and not tax on land (Entry-49 of List-II) or tax on mineral right (Entry-50 of List -II). In the other case,
it is the private person who collects Royalty and the State can impose tax on mineral rights covered by Entry -50 of List-II but not under Entry-49.

Hon’ble Supreme Court in 9 Judge Bench gave a blanket declaration that the State can impose tax and value of the mineral right can be a medium to assess productivity of the land. Hon’ble Supreme Court also failed to consider the concept of decoupling through mineral vesting enactments like Land Reforms Act, even though highlighted and discussed ‘physical decoupling’.Rather the concept of‘statutory decoupling’ is not seen discussed at all in the judgment. 9 Judges bench answered only the other argument advanced by the respondents in defence based on the concept of decoupling when a lease of mineral right is entered into between the parties. Hon’ble Supreme Court refused to accept the argument of notional decoupling, ‘ when lease is granted to the lessee ’and failed to consider possible ‘statutory decoupling’, based on a mineral vesting enactment. Statutory decoupling happens when the State severe the title on mineral from it’s original owner and vests it in itself through an enactment. Hon’ble Court was considering a situation where the private owner of the land who is also the owner of mineral and a lease is executed to a third party. Judgment also considered the impact of Rule 22(3)(h) of the Mineral Concession Rules, 1960 (“1960 Rules”), when owner of the surface granted permission to the prospective lessee of the mineral. Under Rule 22(3)(h), prospecting lessee will have to submit a consent letter from the owner of the surface land, from where the minerals are to be excavated, in a case where the said person is not the owner of minerals and also is not the lessor. In this regard the court observed as the last sentence in para 324 that,

“324...Thus, the transfer of interest in the minerals is distinct from the exercise of the mineral rights. In view of the above discussion, it is clear that minerals are “decoupled” from land only upon the exercise of mineral rights by the lessee.”

This demonstrates only the physical decoupling. Change of ownership on minerals was never in contemplation. According to the Hon’ble Court, no decoupling takes place until the mining activity starts. Thereafter, the judgment considered as to whether income from minerals can be used as a measure tax on land. In this regard court considered the rateable value assessed in the case of mineral bearing lands under English principles and held that in such cases ‘royalty’ was regarded as rent, for the purposes of assessing mineral hereditaments.

In para.327, Hon’ble Supreme Court held that ‘royalty is not tax’, and clarified that it is a consideration payable by the lessee to the lessor for the exercise of mineral rights. Thereafter Hon’ble Court directly went on to discuss the constitutional scheme under Entry-49 of List-II of the Constitution of India and held that there is no restriction imposed by the Centre on this constitutional right of the State. Most importantly, the Hon’ble Supreme Court observed that

“330...Therefore, Royalty is relatable to the yield of the mineral-bearing land as well as the income in case the minerals vest in a private person.”

In this regard, reliance was placed on the judgment in Burrakur Coal Field Ltd. v. UOI₁₇ in which the petitioners therein challenged the provisions of Coal Bearing Areas (Acquisition and Development) Act, 1957(“Coal Bearing Areas Act”)as being violative of Article 19(1) & Article 31(2) of the Constitution of India. However, the case was dismissed by Constitution Bench because the said enactment was protected under Article 31-A of the Constitution of India.

In para 319 of 9 Judges bench discussed the challenge in Burrakur case (supra), that reads as follows:

“...The main thrust of the petitioner’s submission was that a notification under Section 4 cannot be issued with respect to mines which have been ‘worked’ by the lessees…”

[Note -- second mistake occurred in relying on Burrakur case which provides a totally different canvas of different set of facts].

Petitioners in Burrakur case (supra) had also argued that ‘already worked mines’ cannot be vested without providing additional compensation for minerals lying underneath. The discussion in para.17 of Burrakur case (supra) is quoted and from the quote it is clear that the argument was straining towards the ‘separation of tenement through act of parties’ when a lease is created. Hon’ble Constitution Bench of 5 Judges in that case answered the question as follows:

“17…It is however, difficult to see how the owner or the lessee of land who has right to win minerals can effect such severance between the mineral rights and surface rights by opening and operating the mines of  the  land.  For,  even  while  he  is  carrying  on  mining operations, he continues to enjoy the surface rights also. We cannot therefore accept the contention that there was any severance of the mineral rights and surface rights in either of these two cases.”

The argument of the parties therein was that, the worked mine through a lease abandoned it’s identity as ‘part and parcel of the land’ and it is a separate tenement entitled for separate and additional compensation.

With great respect, it is hereby pointed out that there was no severance of right between surface right and subsoil right in Burraku case (supra) unlike in the present case, where the legislative decoupling took place long back when the mineral right in the land was vested through legislation like Land Reforms. On the contrary, in the present case there was a ‘severance of surface right and sub-soil right through legislation’. In the present case, owner of mineral is the State itself through land reforms enactments and that is why the State is collecting royalty, unlike the landowner in Burrakur (supra) where both land and mineral stands vested in the land owner who’s land is sought to be vested along with the mineral namely ‘Coke’. In the present set of facts, severance between the surface right and the subsoil right already took place through agrarian reform legislation. In Burrakur case (supra) justification was given by the Constitution Bench based on twin ownership of both the surface as well as subsoil rights in one person namely the land owner, which has hardly any relevance in the present case. Moreover, the said enactment namely the Coal Bearing Areas Act by itself was treated as an agrarian reform and the Act had the protective umbrella under Article 31A of the Constitution of India in that case. Factual matrix in both cases cannot be placed at par. Statutory decoupling was not under discussion in Burrakur (supra), whereas the present case involves statutory decoupling, which changes the ownerships and incidence of tax on land based on the value of the land or productivity of the land capable of producing mineral.

Principles propounded by the Hon’ble Supreme Court in Amrit Lal Manchanada case (supra), squarely applies in this context. What logically appears is not a precedent. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Burrakur case (supra) was a judgment considering whether physical decoupling by creating a lease by parties entitle the parties to claim separate compensation, by treating ‘the leased mine as a separate tenement’. Physical decoupling was negatived on different set of facts and circumstances and the case in hand involves ‘statutory decoupling’ that has been ignored and never discussed in the present case.

Halsbury’s Laws of England state the legal position as follows:

“19. Meaning of ‘land’ and cognate terms. Prima facie ‘land’ or ‘lands’ includes everything on or under the surface, although this meaning has in some cases been held to have been restricted by the context. ‘Soil’ is apt to denote the surface and everything above and below it, but similarly its meaning may be restricted by the context so as to exclude the mines. ‘Subsoil’ includes everything from the surface to the centre of the earth…

20…Mines, quarries and minerals in their original position are part and parcel of the land. Consequently, the owner of surface land is entitled prima facie to everything beneath or within it, down to the centre of the earth. This principle applies even where title to the surface has been acquired by prescription, but it is subject to exceptions. Thus, at common law, mines of gold and silvery belong to the Crown, and by statute unworked coal which was, at the restructuring date, vested in the British Coal Corporation is vested in the Coal Authority. Any minerals removed from land under a compulsory rights order or opencast working of coal become the property of the person entitled to the rights conferred by the order. The property in petroleum existing in its natural condition in strata is vested by statute in the Crown.”

2.3. Concept of ‘Statutory decoupling’ not dealt with in the Judgment

Difference in the present context is that a ‘decoupling of ownership/proprietorship’ took place through some legislative process i.e., through land reforms enactments etc, which has specifically vested mineral rights and decoupled the mineral right from the rest of the right of the landowner, which was originally part and parcel of the land as highlighted in Halsbury’s Law of England.

The landowner is no more the owner of mineral rights in those States. Then the question is, as to whether the said surface-owner who is not the owner of the mineral and not earning anything from the so-called mineral bearing land of which he is only the surface owner, can be burdened with a tax based on mineral value of the land under Entry-49 List-II of the Constitution of India. Somehow it appears that this aspect is not drawn the attention of the Hon’ble Court. Judgment proceeded onthe premise that an occupier can be burdened with tax under Entry 49 as stated in para. 288. The judgment had probably only discussed the physical decoupling of minerals and not the decoupling of right through legislative process which alone crystallises the taxability based on value of minerals. The State can tax a ‘mineral-bearing-area’ capable of mineral excavation as long as minerals are vested in the landowner or lessee of the owner of minerals, even if the minerals are not physically decoupled. However, the situation is different when the State itself become the owner of the area through a legislative process and thus becomes the owner of the minerals. In that case, the State will be taxing its own property namely the minerals.If tax is imposed on a third party who is not the owner of the minerals,who enjoys only the surface right enabling him to claim ‘dead rent’ or ‘surface rent’ but not the ‘Royalty’, can Entry-49 of List-II [providing federal boundary] salvage the situation. If that be so, how can he be held liable for a levy under Entry-49 of List-II, for which the medium of measurement is ‘Royalty’ and not ‘surface rent’. No doubt MMDR Act 1957 did not bring in any limitation but who should be the subject depends upon the
ownership/proprietorship. State’s authority to tax under Entry-49 List-II is not under dispute, but the incidence of tax is the questionable one, especially when the State being the proprietor of the mineral, cannot take the mineral productivity to tax a person who is not the beneficiary of the minerals available in the land. It is State who is the beneficiary by collecting Royalty. State is giving the lease to a third party or to the surface owner.

In this context, may be para 332 required to be reconsidered since it reads as follows:

“332…Resultantly, if the State legislature has classified mineral bearing land as a separate unit for the purpose of levy of tax on land, the minerals produced or any other measure directly connected to the minerals produced can be used as a measure to quantify the tax”.

Hon’ble Supreme Court came to the conclusion that mineral value or mineral produce could be used as a measure on the ‘tax on land’. It was also held that ‘royalty’ can be a measure to determine the tax. If it is tax on mining activity, it is understandable. If it is tax on minerals then it will fall under Entry-50 and not under Entry-49 which in any case cannot be levied as long as the State is the owner. Land as a unit can never allow productivity based on minerals as an incident of tax, as long as the State is the beneficiary by collecting Royalty. State’s benefit cannot be the basis for a citizen’s tax liability.

3. SOVEREIGNTY -VS- PROPREITORSHIP

The Hon’ble Supreme Court in the Judgment by 9 Judges declared that productivity
of the land as‘mineral bearing land’as well as ‘royalty’ can be the basis for assessing the land under Entry-49 of the List-II of the Constitution of India. As stated earlier, it is not indispute that power to tax as a sovereign is a prerogative right and neither MMDR Act nor any other enactment does not bring in any limitation to this power as provided under Entry-50 of List-II of the Constitution of India.

However, a microscopic analysis of fundamental principles revolving around the ‘prerogative right and proprietary right’, while considering Entry-49 of List-II of the Constitution of India enabling State to impose land revenue under the federal system, the State is entitled to exercise its prerogative right, provided the State is not exercising ‘proprietary right’ over the land, much less the minerals.

The fundamentals of mining law have been considered in Sri Tarakeshwar Sio Thakur case (1979) 3 SCC 106), referring to Halsbury Law of England, 3rd edition₁₈ and also in D.K.Trivedi v. State₁₉.

Under the British regime, in 1908, the court of appeal in Madras Presidency had occasion to consider the concept of land assessment qua prohibitary assessment. Question as to whether ‘merely because a person is an ‘occupier’of the land can enable the State to assess an occupier for tax when the Government is the owner. In Madathappau Ramaya v. Secretary of State₂₀,a 3 (three) Judges ’bench consisting of Chief Justice S.Subramania Ayyer, Justice Boddam and Justice Bhashyam Iyyengar (concurrent) in page 389 observed as follows:

“These various provisions show beyond the possibility of a doubt, that the land in respect of which land-revenue is exigible is vested in some person or persons other than the Crown;and that the Crown possesses nothing more than a charge (though a first charge) in respect of revenue due to it, upon the interest of such person or persons, realisable by State thereof. They absolutely preclude the supposition that any Crown demand is recoverable as land revenue, unless it be something due from one who is a land holder as defined by the Act.”

The Hon’ble Court discarded the argument of the State, that revenue recovery is permissible for every demand of the crown even if the crown is the owner of the land. Land in question was a street vested in the Government. Such an assessment was termed as prohibitary assessment according to the State. Therefore, the State claimed that they can make assessment, but the Hon’ble Court held that they could do it only if the State is not the owner of the subject under assessment. In the present case probably, there could possibly a tangent argument that the surface owner or the lessee of mining lease obtained from the Government as occupier can be assessed. When ‘surface owner is also the lessee of mining lease is another situation. In all these cases, mineral is the medium based on which the taxability is arrived at and that mineral is vested in the Government, and income is ‘Royalty’ which also goes to the Government. Sovereign seizes to be the Sovereign with regards to a subject matter when it becomes the owner of the same and sovereign cannot impose tax on itself or it’s income. [in this case -mineral and royalty’] Government’s income as proprietor of the mineral namely ‘Royalty’, cannot be the basis for tax on the citizen.

Therefore, the fundamental principle ensue from these discussions is, that the State cannot assess the land based on the characteristic of the land as mineral bearing land on the basis of the mineral wealth belonging to the State. Royalty being the income of the State cannot be the basis/measure to assess the land of a subject. Therefore,royalty due to the Government when recovered through revenue recovery proceedings, will not assume the colour of tax. Principle flowing from the above-mentioned judgment demonstrate that sovereign once become the owner of the land or any of the rights out of those bundle of rights, it cannot impose tax/revenue as a sovereign on that land or part of the right in land which is vested in the State.

4. SOVEREIGNTY AND NOT THE ENTRIES IN 7TH SCHEDULE DECIDES
TAXING POWER OF MINERAL RIGHT

The Hon’ble Supreme Court in the Judgment held that mineral right can be a basis for assessment of land as ‘mineral bearing land’ or royalty can be the basis as a measure to assess productivity of the land. When the normal surface is assessed under Entry-49 in List-1 of the Constitution of India, the assessment is on a commuted money value similar to the measure as provided in Board’s Standing Orders of British Government which has been appreciated and quoted with approval in the Judgment under discussion. When we analyse the tax regime during British era, especially in Madras, the following aspects are very relevant. This has been referred to both in Thressiamma Jacob case (supra) as well as Dalmia Cement case (supra), i.e., ‘a share in the produce’ commuted into money value is the revenue assessed on land. As and when minerals are worked, an additional tax is levied if necessary. RESOLUTION-dated 19.03.1888, No.277 of the Boards Standing Orders.

The above discussion without demur accepts the fact that the State was assessing tax on minerals, but State was not the owner of the minerals, and the proprietor of the soil is assessed only when he operates the mine or extracts the mineral under British regime. 9 Judges bench also accepted this totally and stated that even after the British era the same condition continued. It is stated by 9 Judges in Mineral Area Development Authority case (supra) in the following words in para 255:

“255. ……right of the State in minerals is limited ‘toa share in the produce of the minerals worked’, commuted into money payment,if thought necessary by Government, in like manner with and in addition to the land assessment… Thus, the colonial state did not claim subsoil rights with respect to lands held under permanent settlement, and only a limited right in land held under ryotwari pattas, The system of law continued until independence and even thereafter.”

Britishers taxed minerals because mineral was not vested in them at that point of time. Vesting took place only after independence and during the agrarian reforms enactment in 1960s and 1970s. The State’s right to assess tax minerals is no doubt a sovereign right constitutionally protected and structured through constitutional scheme of delimitation, as long as they are not the proprietors of the mineral. In the present case, mineral bearing land as a unit is under assessment and the value of mineral has been considered as an element in deciding the value of the land, or royalty is taken as the measure irrespective of the fact that the royalty is not the income of the landowner when the mine is leased to a third person by the State by obtaining consent under Rule 22(3)(h) of 1960 Rules from the land owner.

Even otherwise, by looking from another angle, one can observe that, in most of the lands in India, minerals are vested through a legislative process like the Land Reforms Act, wherein the private person lost his right to operate the mineral and he has to apply to the State by paying royalty. We are also bound to visualise a situation where the minerals are leased to a third party by following the provisions contained in Rule 22(3)(h) of 1960 Rules by taking consent from the surface owner. Surface owner being the assessee of land revenue under Entry-49 List-II of the Constitution of India, has no benefit from the land as the mineral bearing land. He may be entitled for dead rent or surface rent and not royalty. Substantial beneficiaries are the State who is collecting the royalty and the lessee of the Government, who is only an occupier of the land with permission. Question now arises is as to why the surface owner shall pay additional land revenue as the land being a mineral bearing land, for the benefit of some other person namely the lessee or the State with regards to minerals sought to be excavated or capable of being excavated.Therefore, whether it is mineral bearing area or an ordinary land with no identified minerals makes no difference for him. If inflated amount is charged as land revenue for the mineral bearing land based on royalty paid by someone else to the State, even though minerals are not decoupled from the land physically, through the leasing process or any other process, then that collection cannot be considered as one under due process of law because legislative decoupling happened much before and the assessee is no more a beneficiary of the so-called medium of assessment namely ‘Royalty’. Even if the dead rent is paid, it has no connection with the royalty and the owner is getting nominal benefit as in the case of an ordinary land, because mineral is not improving the value of the land. Moreover, assessment of land revenue will have to satisfy the test that the State is exercising only ‘sovereign right’ and not ‘proprietary right’ with regards to that item under assessment. Even otherwise, how can the royalty being the income of the State be the basis for making an assessment on a person who has no interest either in the minerals or in the Royalty?

Fundamentals of lease of the surface as well as mining lease under mining law as per para 899 of Halsbury’s Law of England 3rd Edn. Volume -26 reads as follows:

“ Lease may be granted of land or any part thereof, and since minerals are part of the land it follows thata lease can be granted to the surface of the land and minerals below or of the surface alone or of the minerals alone. It has been said that a contract for working and getting of minerals alone…..though for convenience called a mining lease, is not reality a lease at all in the sense in which one speaks of an agricultural lease , and that such a contract, properly considered , is really a sale of the portion of the land at a price payable by instalments, that is by way of rent or Royalty, spread over a number of years”

Therefore, when the State is collecting Royalty, State being the owner of the mineral (part of the land) collects ‘Royalty’ as price for the portion of the land namely the mineral. How can that be a measure of taxation, is the moot question. It is a sale between the State and the lessee, where a portion of the land owned by the State is sold to the lessee for a price and the lessee need not be the surface owner. The above principles are quoted with approval by Hon’ble Supreme Court in Sri Tarakeshwar Sio Thakur case (supra).

Lessee under the mining lease also cannot be the assessee because he is only an occupier and land revenue can be assessed only on the surface owner under Entry-49
List-II. If tax is on the mineral, assessment shall be under the head covered by Entry-50 and not under Entry-49 of List-II. If the surface owner is also the lessee of mineral concession, he has two different identities. (i) As the surface owner and also as (ii) occupier as a lessee of the Government for mineral right/subsoil right. Both these identities are distinct and cannot be clubbed as per the fundamental principles mining laws. That is why there are two different Entries in Part-II itself namely Entry-49 for rights other than mineral rights and Entry-50 for tax on mineral rights. There is a difference between ‘mineral’ and ‘mineral right’. Entry-50 deals with ‘mineral right’ and not ‘minerals’. Mineral right indicates its existence in the original form as part and parcel of the land and specifically incorporated in Entry-50 which is carved out of Entry-49 so as to provide limitations that could possibly be imposed through a legislative process by Central Government under Entry-54 of Part-I of Seventh Schedule. When the word ‘mineral’ is purposefully not used in Entry-50 by the framers of the Constitution, court cannot widen the scope by reading word ‘tax on mineral’ in to that Entry. It is more so in the case of Entry-49. When the word ‘mineral’ as such is not mentioned independently anywhere in the Entries either in Entry-49 or 50 of List-II, court cannot read the word ‘mineral’ independently in to Entry-49. ‘Mineral right’ is specifically included in Entry-50 of List-II for the reason as already stated. Entry-54 of List-I  and Entry 23 in List-II are specifically dealing with mineral development and not ‘tax on mineral’ as such. Tax on mineral right is a permitted field but subject to Central Government regulation. Land is separately provided under Entry-18 of List-II andtax on land is specifically provided under Entry-49. In this back ground it would be advisable to look at the residual entry namely Entry-97 of List -I and it could be seen that the words ‘any tax not mentioned in either of the list’ finds place in the said Entry. Therefore, when ‘tax on mineral’ does not find place in any of the list, then it has to find place only in Entry-97 of List-I.

In fact the judgment in para 41 while concluding it’s findings made the following finding:

“41(C). Parliament is not using its residuary power with respect to imposing any limitation on the taxing power of the State under Entry 50 – List-II. In fact, even the Validation Act, 1992 enacted by Parliament was upheld having regard to Entry 54 - List-I read with Section 2 of the MMDR Act, 1957 and not Entry 97 - List-I.

Here it appears that the judgment failed to analyse as to why the word ‘tax on mineral’ is purposefully not used in Entry-50 and used the words ‘mineral right’ alone. Entry-50 enable the State to legislate on ‘mineral right’ which is in a decoupled form (where there is no mineral vesting enactment) but is part and parcel of Entry-49. However Entry-50 in effect carved out ‘mineral rights’ and not ‘minerals’ as such. Mineral right’ exists when it is part and parcel of the land in it’s coupled form. Unless and until mineral is extracted physically (decoupled physically), it remained as part and parcel of land as ‘mineral right’. Para 40 of Justice Ojha’s descending judgment in India Cements case (supra) gives a clue as to how minerals are separated/decoupled physically from the land and it says:

40………it could only be extracted if there are three things:

(1)   Land from which mineral could be extracted.                                               

(2)  Capital  for providing machinery, instruments and other requirements

(3)  Labour

This analysis throw enough light to appreciate the difference between ‘mineral’ and mineral right’. One is physically decoupled and the other is not.

Therefore ‘tax on mineral’ is an independent subject which is not part and parcel of land under Entry-49 and 50 of List-II. No doubt MMDR Act is not bringing in any limitation but that was under Entry-50, whereas taxation is an independent legislative field and only Entry which mentions about ‘tax on mineral rights’ is Entry -50 and there also the words ‘tax on mineral’ did not find place. This conscious exclusion reflects the wisdom of the farmers of the Constitution, and not happened by accident. This omission cannot empower the State to seek shelter under Entry-49 and thereby legislate on ‘tax on minerals’. Otherwise an anomalous situation shall ensue. ‘Tax on mineral right’ is regulated under Entry-50 which specifically states that ‘subject to any limitation imposed by Parliament by law relating to mineral development’ falling under Entry-54 of List-I. ‘Tax on mineral’ is intentionally not used here because legislative field to ‘tax mineral’ always remained with the central Govt. under the residuary power in Entry-97. As per the law of interpretation laid down by Hon’ble Supreme Court: ‘what is stated and what is not stated, both are to be seen’. May be,that interpretation of Statute is different from interpretation of Constitution but logically the intention of the framers of the Constitution in not including the words ‘tax on minerals’ in Entry-50 of List-I cannot be ignored.

It is well settled, that entries in various Lists of the Seventh Schedule of the Constitution are not sources of power but are only providing the limits or the boundaries between the State and the Centre regarding their eligibility to legislate under the federal scheme in the constitutional framework. Schedule-VII is only an instrument of self-discipline, where under the sharing the power between the Centre and the States is provided, so as to enable them to exercise self-restraint to remain in the allotted field. A discussion on Entry-49 or 50 of List-II of the Constitution of India cannot decide the source of power to tax. Sovereignty is the source of power and said power is fenced between Centre and the State through various entries in different lists. It is also trite to mention, that the source of power is no doubt arises from the sovereignty,but the moment State becomes the owner of minerals, it looses the sovereign right to impose tax with regard to that subject matter.

CONCLUSION:

This article is only highlighting the blanket declaration that State can take mineral right in the land as a measure of productivity to assess land under Entry-49 List-II. Words ‘mineral right’ is not finding its presence in Entry-49 and‘tax on minerals’ is intentionally not mentioned in Entry-50 of List-II, is with a purpose and not an accidental error. Thisarticle wish to high light the anomaly where the land in question is a mineral bearing land but the minerals are vested in the Govt. and the surface remains with the surface owner. The lease for excavation is given to the lessee to occupy the surface land through permission from the surface owner under Rule 22(3)(h) of the Mineral Concession Rules, 1960. Lessee of the Govt., is entitled to excavate and in that scenario, if the surface owner is made liable under Enry-49 of List-II, then the value of land cannot be based on mineral right or royalty which he does not own. [Halsbury para 899 (supra)] Occupier also cannot be taxed on the basis of minerals sold by the State by collecting Royalty to the occupier [Halsbury para 899 (supra)]. Occupier is using his capital and labour to extract the mineral owned by the State by paying Royalty to the Government. Mineral in it’s coupled form physically remains with the land and the same is called ‘mineral rights’ and not ‘mineral’ because in order to get it physically decoupled from its’ identity as ‘mineral right’, 3 elements are necessary i.e land + Capital + labour. Only land is covered by Entry-49 and 50 of List-I when it is in a physically coupled form, but the remaining are necessary to convert a ‘mineral right’ into ‘mineral’. Judgment proceeded on the wrong premises that both‘mineral right’ and ‘mineral’ are one and the same as a subject falling under Entry-49. Entry-54 of List-I has no role to play in the field of taxation except to the extent as provided in Entry-50 of List-II, where in, if the Centre thinks it appropriate to impose a limitation in the interest of mineral development. Such a limitation is not in existence as on today.

It is concluded by pointing out that:

(i) Royalty and Tax are mutually exclusive. ‘Tax on land’ arises out of prerogative right of the sovereign and in some cases State can claim ‘Royalty’ when it has acquired ‘proprietary right’ on minerals through a valid legal process.

(ii) ‘Tax on mineral’ is an independent subject not covered by the usage ‘tax on mineral right’ and hence falls under Entry-97 as it does not fall under any of the Entries in the VIIth Schedule. More specifically it falls under the category : ‘any tax not mentioned in either of the lists’.