An Erudite Judge Retires

(K.Ramakumar, Sr. Advocate, High Court of Kerala)

In the retirement of Sri.Justice Kemal Pasha, the High Court is losing an articulate and erudite Judge, the impact of which will be felt by everybody.  His presence was ubiquitous, active throughout, putting searching questions and reacting often very strongly on issues but not on individuals. No doubt he can be described as an outspoken Judge, but be it remembered outspoken Judges can be trusted more.

Sri. Justice Kemal Pasha threw up a large and lucrative practice to wear judicial mantle at a time when he was commanding extensive work throughout the District of Kollam. His was a traditionally typical case where a legal practitioner made a big sacrifice to take up the arduous, strenuous and stressful job of a Judge.  Soon it was found that as a Judge he excelled himself particularly in conducting criminal trials. One could perhaps point out that the punishments imposed by him were deterrent but deterrence is certainly one way of curbing and controlling crimes. As a Sessions Judge he acquired wide experience both in the Civil and Criminal branches of law.

In the High Court it was therefore, easy for him to assimilate constitutional issues and even election cases. His judgments are emphatic in exposition of law and fastidious on facts.

Sri.Justice Kemal Pasha was often outspoken outside the Court as well.  This inevitably had led to certain controversies as when a Judge speaks people listen with respect.

  Nevertheless, Sri. Justice Kemal Pasha was not reluctant even to speak on topics affecting religious practices which a more reticent Judge would have hesitated to speak out.  This, undoubtedly had also irked many, who did not agree with the Judge and had in turn evoked criticism.  One cannot however, miss his fearless expression of opinions on many topics of social importance and legal issues both in Court and outside the Court.

A remarkable thing that has to be mentioned about Sri.Justice Kemal Pasha is the respect with which he held members of the Bar. Legal practitioners appearing before him never went out of his court insulted or humiliated.  There was no shouting at, slighting or sarcastic comments. No pompous power display also. In fact large majority of the Lawyers in the High Court felt completely at ease when appearing in his court and to entangle themselves in legal quiddity, which was often enjoyable and delightful.  He held the Court with dazzling dignity and decorum and could achieve better results in the disposal of cases and administration of justice. To be sure even after demitting office, lawyers will never cold shoulder him, which they do to some.

The High Court is certainly becoming poorer by his absence. With his deep interest in law, legal principles and social justice, one hopes his talents will not go wasted.                                                

Beyond the Right to Privacy*

(By P. Chandrasekhar, Advocate, Ernakulam)

In Justice Puttaswamy v. Union of India(2017 (4) KLT 1 (SC) = (2017) 10 SCC 1)the Supreme Court has held that right to privacy is a fundamental right emanating from the Articles in Part III of the Constitution of India, including Article 21. The Supreme Court has thus elevated a common law right to the status of a fundamental right. The Court in this process relied on the decisions of Supreme Court of United States and the American concept of ‘Ordered Liberty’. Though Puttaswamyhas received wide welcome both within and without judiciary the normative foundation of the decision requires closer and deeper scrutiny.

The idea that right to privacy emanates from all fundamental rights in Part III of the Constitution of India including Article 21 has obviously been drawn from the American theory of “penumbra of the Constitution’ highlighted in Griswold v. Connecticut(381 US 479 (1965)) which does not appear to have any relevance in India. Its elucidation even in America is highly debatable and questionable. In Griswoldthe US Supreme Court struck down a Connecticut statute that proscribed use of contraceptive by married couple. The Court held that it was intrusion into the private family life of the people and violated their right to privacy. Though right to privacy has not been specifically mentioned in US Constitution, the Court held that right to privacy emanated from ‘penumbra’ of rights guaranteed by the Bill of Rights including 9th Amendment. 9th Amendment of US Constitution provides that ‘enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’.  Justice Douglas pronounced the opinion of the Court inGriswold. Chief Justice Warren, Justices Goldberg, Brennan, Harlan and White agreed with his conclusion. Justice Douglas said that specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that gave them life and substance. He said that various guarantees created zones of privacy. According to Justice Douglas ‘we deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system. Marriage is coming together for better or worse, hopefully enduring and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faith, a bilateral loyalty not commercial or social project’. It was obvious that Justice Douglas was not speaking about right to privacy as such as a normative concept but a particular descriptive privacy; marital privacy. Justice Goldberg held that concept of liberty embraced the right of marital privacy. He however struck a caution. Relying on the earlier decisions of US Supreme Court he said that ‘in determining which rights are fundamental, Judges are not left at large to decide cases in the light of their personal and private notions. He also said that ‘they must look to the traditions and collective conscience of our people to determine whether a principle is so rooted as to be ranked fundamental’. The enquiry, for him, was ‘whether a right involved is of such a character that it could not be denied without violating those fundamental rights of liberty which lie at the base of all our civil and political institutions’. Justice Warren and Justice Brennan concurred and joined the opinion of Justice Goldberg.  Justice Harlan though agreed with the final conclusion of the majority, did not join their opinion. He said that ‘incorporation approach’ is an unacceptable constitutional doctrine. For him the proper approach was constitutional enquiry as to whether the enactment violated basic values implicit in the concept of ‘ordered liberty’. Justice White, however, found the Connecticut law as applied to married couple deprived them of ‘liberty’ without due process of law as that concept is used in Fourth Amendment of the US Constitution. He held that it was settled by earlier opinions of the Court that Fourteenth Amendment included the right to marry, establish home and bring up children. Obviously, the ‘incorporation doctrine’ propounded by Justice Douglas did not find favour with any other Judge who agreed with the final conclusion reached by him.  Justices Black and  Stewart dissented and wrote separate opinions stating that there is nothing in US Constitution to say that Right to Privacy as such is a fundamental right, though they agreed that there are privacy rights such as ‘unreasonable search and seizure’ protected by the Fourth Amendment. They held that ‘privacy’ is a ‘broad, abstract and ambiguous concept which can easily be shrunken in meaning’.

It is clear that the formulation of Justice Douglas about right to privacy as a fundamental right emanating from the penumbra of the US Constitution based on ‘incorporation doctrine’ had no support from the other Judges of the Court. The history of the legal use of ‘penumbra’ metaphor could be traced to decision in Montgomerry v. Bevans(17 F.Cas.628 (9th C.C.D.Cal) (1871).   Burr Henly points out that Justice Holmes used that word to describe the ‘grey area where logic and principle falter’. Justice Hand expanded the meaning of the word to indicate the vague borders of words and concepts. According to Justice Cardozo ‘metaphor in law is to be narrowly watched, for starting out as a device to liberate thought it ends often enslaving it’ (Burr Henly: “Penumbra”: The Roots of a Legal Metaphor; 15 Hastings Constitutional Law Quarterly 81 (1987-1988)). However, Justice Douglas took a different approach. Rather than using it to high light the difficulty of drawing lines or determining the meaning of words or concepts he used the term to refer to a peripheral area of something specific.  Since Griswoldthe ‘penumbra doctrine’ is used to find implied rights that emanated from a specific rule extending its meaning to its periphery following the opinion of Douglas in Griswoldthough the other judges who decided Griswolddid not agree with that concept.

The view of Justice Douglas in Griswoldwas subject of severe criticism in America. Prof.David J.Garrow writes that Douglas was an intense private person. He was a thorough individualist. Prof.Steven Duke said that published opinions of Douglas ‘often read like rough drafts’. James Simon, his biographer, said that Douglas believed in theory of individual’s pre-legal rights. Donald Dworkin said that the fundamental individual rights propounded by Douglas were matters of his emotional biases rather than universal truth. Garrow quotes from Bruce Allen Murphy’s ‘Wild Bill’ and says that sexual escapades of Douglas were well known. He also says that ‘other justices also had mistresses’. This, of course, is not surprising having regard to the concept of liberty in American society. Garrow also adds that Justice Brennan had later complained about the slovenliness of Douglas’s writing. Reviewing “Wild Bill” Judge Richard Posner said that Douglas was ‘one of the most unwholesome figures in modern American political history’ and that ‘Murphy’s account of Douglas did not take in ‘Douglas’s flaw of character’. (See ‘The Tragedy of William O Douglas’; The Nation; March 27, 2003; April 14, 2003 issue). Robert P. George, writing in National Review said that Griswoldand subsequent opinions of the US Supreme Court based on Griswoldare widely praised in American Law Schools not because of their legal merits, but because it had comported with the ideology of ‘American Liberalism’. (See Robert P. George; The Bad Decision That Started It All; The National Review; July 8, 2005).

According to Prof.Melvin Urofsky criticism of Douglas can be divided into two categories. First, as a political judge he decided cases ‘according to his political views’. As a liberal he believed in right of privacy and stringent limits on Government intrusion. Second, he did not develop a coherent, acceptable legal analysis in his decisions so that scholars and other Judges could draw a useful pattern from his opinions. Urofsky quotes Edward White and says that ‘compelling personal themes of Douglas’s life have deep ramification for his professional life, especially his career as Supreme Court Justice’ (Melvin I Urofsky; “Douglas as a Common Law Judge”; Vol.41:133 Duke Law Journal)

In Justice Puttaswamythe Supreme Court has relied on the American concept of ‘Ordered Liberty” without explaining what that concept means for Indian society. The origin of ‘ordered liberty’ can be found in “The American Cause” by Russell Kirk.(Russell Kirk : The American Cause; edited with New Introduction by Gleaves Whitney; ISI Books; Willington, Delaware;2002). According to Kirk “Christian Civilization” or “Western Civilization” of which American civilization is a part consists of three cardinal ideas; the idea of justice, the idea of order and the idea of freedom. “Justice” is the principle and process by which each person is accorded things that are owned by that person – the things belong to the person’s nature. This principle protects person’s life, property, proven rights and dignity. The allegorical figure of justice always holds a sword. Justice is the corner stone of the world - divine justice and human justice. It is the first necessity of a decent society. “Order” is the principle and the process by which peace and harmony of society are maintained. It is the arrangement of rights and duties in a state to ensure that people will have just leaders, loyal citizens and public tranquility. It implies obedience of a nation to the laws of God and the obedience of individuals to just authority. Without order justice rarely can be enforced and freedom cannot be maintained. Freedom is the process by which a person is made master of that person’s life. It implies the right of all members of adult society to make their own choices in most matters. A free person is a person who has the right and the responsibility of deciding how that person is to live. There is no liberty without moral responsibility. Justice Cardozo’s majority opinion in Palk v. Connecticut(302 U.S. 319 (1937)) is considered to be the first judicial recognition of ‘ordered liberty’. Cardozo identified some constitutionally enumerated rights that were not the essence of a scheme of ‘ordered liberty’ and thus not incorporated in the Fourth Amendment. To abolish these rights is not to violate principle of justice so rooted in the traditions and conscience of the people. On the other hand, rights such as ‘freedom of thought and speech’ were of the essence of a scheme of ordered society. The core of ‘ordered liberty’ is the question whether the right is so rooted in the traditions and conscience of the people to be ranked as fundamental.

There was nothing to suggest that use of contraceptive by married couple was so deep rooted in the tradition and conscience of the people to rank the right to be fundamental. The view that right to use contraceptive by married couple was part of ‘ordered liberty’ protected by the Constitution was, therefore, not in accord with the long line of previous opinions of the Court. After Palko ‘deep root test’ became the basis of substantive due process standard used by the Courts to strike down enactment which violated ‘ordered liberty’. By passage of time substantive due process became the most controversial doctrine in constitutional law of America. Critics argued that when Judges struck down legislation on substantive due process grounds, they improperly imposed their own moral-political judgments without license from either the text of the constitution or its original understanding (See Tradition Based Substantive Due Process : John C Toro; New York University Journal of Law & Liberty; 2009, page 172). In Lochner v. New York (198 U.S. 45 (1905)), US Supreme Court struck down a New York statute limiting number of hours bakers could work per week. The majority held that the statute interfered with freedom of contract. Justice Holmes dissented and criticized the majority Judges for importing their liberal philosophy into due process clause. Lochner era was criticized for the opinions of unelected Judges who substituted their own values for those of popularly elected legislatures to protect rights that were not expressly stated in the Constitution. InFerguson v. Skrupa(372 U.S.726 (1963)) US Supreme Court reversed the trend. In Ferguson the Court proclaimed that ‘there was a time when the due process clause was used to strike down laws which were thought unreasonable, unwise and incompatible with some particular economic social philosophy and that ‘the doctrine had long since been discarded’. The assurance was short lived. Critics say that Lochner era came back when Griswoldwas pronounced. In Aestandadt v. Baird(405 US 438 (1972)) the Court extended Griswoldprinciple to unmarried couple permitting them to have access to contraceptive freely without intrusion of the Government. In Griswoldthe Court had ruled that criminalizing use of contraceptive by married couple had infringed their right to family life and therefore unconstitutional. However, in Aestandadtno right to privacy of family life of the couples was involved. Aestandadt was criticized for the reason that the court had termed premarital and extra marital sex as part of right to privacy.  In Roe v. Wade(410 US 113, 153 (1973)) the Court relied on Griswoldand held that pregnant women had unrestricted right to terminate pregnancy. However, in Bowers v. Hardwick(478 US 186 (1986)) the Court upheld constitutionality of Georgian law which criminalized homosexual acts. But in Romer v. Evans(517 US 620 (1996)) the Court invalidated amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation.  In 2003 the Court over ruled Bowers holding that laws making same sex intimacy a crime ‘demeaned the lives of homosexual persons’ (Lawrence v. Texas(539 US 558, 575 (2003)). In Romerthe court had applied ‘deep root’ test and held that ‘homosexual activity is not a right deeply rooted in the traditions and conscience of the people to be ranked fundamental right’. In Lawrence the Court relied on Griswold.  Justice Kennedy delivered the opinion of the Court. Justices Stevens, Souter, Ginsburg and Breyer joined the opinion of Justice Kennedy. Justice O’Connor who had concurred in Bowersdid not agree that Bowersshould be over ruled but concurred with the final conclusion of the majority. Justice Scalia filed a dissenting opinion. Justices Rehnquist and Thomas joined the dissent. O’Connor said that Lawrenceraised different issue than Bowers; whether under Equal Protection Clause moral disapproval is a legitimate state interest to justify by itself a statute that banned homosexual sodomy but not heterosexual sodomy. She used ‘rational basis theory’ to hold that the ban of homosexual sodomy was discriminatory. For her, moral disapproval of a group cannot be a legitimate governmental interest. Justice Scalia warned that application of an unheard form of rational basis theory will have far reaching implications beyond the case. He said that the Court untouched the central legal conclusion in Bowers. He said that ‘Respondent would have us announce a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do”. He cited Washington v. Glucksberg(521 US 702,721 (1997)) which held that only fundamental rights which are ‘deeply rooted in this nation’s history and tradition’ qualify for anything other than rational basis scrutiny under the doctrine of ‘substantive due process’. He also pointed out that Texas State undeniably sought to further the belief of its citizens that certain forms of sexual behaviour are ‘immoral and unacceptable’. The same interest is furthered by criminal laws against fornication, adultery, adult incest, bestiality and obscenity’.

In James Obergefell v. Richard(576 US 14-556, 14-562, 14-571,14-574 (2015)) the Court held that persons marrying some one of the same sex are entitled to all lawful benefits on the same terms and conditions as marriages between persons of the opposite sex. The court held that same sex couples may exercise the right to marry and that they are entitled to all rights and benefits as are available to persons marrying opposite sex. The court relied on Lawrenceto come to the conclusion it reached. Justice Kennedy delivered the opinion of the Court. Justices Ginsburg, Breyer, Sotomayor and Kagan joined. Chief Justice Roberts filed a dissenting opinion. Justices Scalia and Thomas joined the dissent. Robert said that ‘the court is not a legislature. Whether same sex marriage is a good idea should be of no concern of the Court. Under the Constitution Judges have power to say what the law is and not what the law should be. The fundamental right to marry does not include the right to make a statute change its definition of marriage. People of a State are free to expand marriage to include same sex couple or retain the historic definition.’ In Obergefell,however, the court took an extraordinary step of ordering every state to license and recognize same sex marriage. According to Roberts majority decision in Obergefellis an act of will, not legal judgment. The right it announced had no basis in the constitution or precedent. Scalia, in his dissent, called attention to the court’s threat to American democracy.  He said that the Judges are selected precisely for their skill as lawyers and whether they reflect the policy views of a particular constituency is not and should not be relevant. To allow the policy question of same sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. He concluded that ‘the world does not expect logic and precision in poetry or inspirational philosophy; it demands them in law’.

The Constitution Bench in Justice Puttaswamyhas accepted Griswoldand the subsequent judgments based on Griswoldas the law of the land. The history of ‘ordered liberty’ and ‘substantive due process’ finds no reflection in the judgment of the Constitution Bench. The Constitution Bench appears to have been influenced highly by the opinion of Justice Douglas in Griswold, an opinion which even the Judges who concurred with him were reluctant to fully endorse. The Constitution Bench does not appear to have noted that there is no provision similar to 9th Amendment to US Constitution in our Constitution. India is not a ‘Christian civilization’ or ‘western civilization’. The reliance of American concepts of ‘ordered liberty’ and ‘substantive due process standard’ do not appear to be in accord with our constitutional scheme. The ‘incorporation doctrine’ or ‘penumbra concept’ is also no part of our constitutional motley.  It is no part of our law that ‘rights which are deep rooted in American tradition and the conscience of American people’ are fundamental rights. Privacy is a vague concept incapable of precise definition. Privacy as such therefore cannot be a fundamental right. Certain descriptive aspects of ‘privacy’ could be a fundamental right being part of basic concept of ‘liberty’ guaranteed by Indian Constitution. That, of course, is a matter to be decided in the context on a case to case basis. Ours is not a society based on absolute individualism or unrestricted individual liberty. Ours is a society based on the concept of collectivism. Joint family system and community bond have deep roots in our society. Our tradition detests sodomy, bestiality, obscenity and adult incest. Same sex marriage is not deep rooted in our tradition or culture. None of these aspects could be part of right of privacy as a fundamental right under our Constitution.

The law laid down in Justice Puttaswamy,if allowed to stand, can have unprecedented, unforeseen and drastic repercussions in our society. Based on Justice Puttaswamymost of the personal laws and law relating to marriage, succession and inheritance may have to be struck down as unconstitutional. Persons marrying persons of same sex can now ask for marriage certificate from authorities as part of their fundamental right. Same sex spouse can now demand succession to the property of the deceased spouse. Law relating to adultery and bigamy will have to be nullified in the name of privacy and freedom of choice. Section 497 of Indian Penal Code (I.P.C.) which provides that   sexual intercourse by any person with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that person, shall be a criminal offence, will now become unconstitutional because going by the law laid down in Justice Puttaswamysexual liberty is part of right to privacy and a fundamental right. The question as to whether Section 497 of I.P.C. is gender discriminatory or not is presently being examined by the Supreme Court in a case pending before it. That question has now become irrelevant and academic in view of Justice Puttaswamybecause the section as a whole now violates right to privacy. Section 494 of IPC also will have to be struck down. Marrying another person when wife or husband is alive is now a criminal offence. After Justice Puttaswamyindividuals are now free to marry any person of that person’s choice regardless of a subsisting marriage.  Married couples are now free to choose the sex of the child they want to beget. Right to choose the sex of their child is now a part of their right to privacy. Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 that prohibits sex determination test will have now to be struck down as violating their fundamental right. Pregnant women can now insist for unrestricted right to abort. In Justice Puttaswamythe Supreme Court has held right to privacy extends not only acts in private but also private acts in public. Therefore, many obscene acts in public which otherwise would have been punishable under Section 294 based on ‘community standard’ test will now become permissible. Under the ‘substantive due process standard’ as prevalent in America, Constitutional courts in India are now free to sit in judgment over the wisdom of the legislature on the ground that the law enacted by legislatures and parliament are ‘unnecessary or inappropriate’. Unquestionable ‘wisdom of the legislature’and ‘will of the people’ have nowbecome relics of the past.

In short, Justice Puttaswamy does not appear to be founded on any definite or sound jurisprudential premise. The premise that ‘right to privacy’ as such is a fundamental right is not supported even by the American decisions relied on by the Constitution Bench. There was hardly any justification for the Constitution Bench to overrule Suresh Kumar Kaushal v. NAZ Foundation ((2014) 11 SCC 1). The correctness or otherwise of the decision did not directly arise in Justice Puttaswamy. There is no sound reason for reading vague concept of ‘right to privacy’ into fundamental rights in Part III of the Constitution. On the whole Justice Puttaswamy appears to be ‘counter majoritarian’. The question as to whether ‘right to privacy’ as such should be made a fundamental right or not is a matter best left to the people and their representatives.

Foot Note:

*I am grateful to Prof.(Dr.) K.N.Chandrasekharan Pillai, Former Dean, School of Legal Studies, Cochin University of Science & Technology and Former Director of National Judicial Academy who was kind enough to go through the draft of the article and made necessary corrections and modifications.

Slumbering Environment Regime: Concern of the Apex Court

(By P. Leelakrishnan (Professor, Emeritus (Law), CUSAT) and
S. Naveen (Assistant Professor, School of Laws, CUSAT)

In the recent case, Kerala State Coastal Management Authority v. DLF Universal Ltd.¹, the lethargy of environmental authorities in India is likened to the classic marathon sleep of Kumbakarna, the mythological figure in Ramayana. Irrefutably, the comparison points to the dire need to make environment regime more vibrant by clearing off all slowcoaches. As the story goes, as soon as he is woken up, Kumbakarnabecomes annoyed till he is readily supplied with plenty of food to gratify his insatiable appetite. One hopes that the comparison does not go to such imagination but is confined to reveal the inefficiency of the environmental agencies.

Facts of the case

The respondent builders, DLF Universal Ltd. (DLF), after obtaining all other requisite permits, apply for environmental clearance on 27.11.2007 for constructing a multi-storeyed residential complex². It seems that they have waited for a long period but did not get any information on the fate of their application. DLF begins the work on the strength of a provision for the ‘deemed clearance’ in the EIA notification³and almost completes the construction on 09.11.2012 when the Writ Petition is filed before the Kerala High Court. However, on 11.12.2013, the State Environment Impact Assessment Authority (SEIAA) renders what is called an ‘integrated’ CRZ-cum-environmental ‘clearance’.

The main issues involved are whether the coastal regulation zone agencies can make contradictory and varying opinions on the location of the project and whether the developer could can go ahead and complete his project when the impact assessment authorities slept over his clearance application for a long time without making a definite decision.

CRZ and EIA Notifications                                        

Coastal Regulation Zone (CRZ) Notification 2011 specifically protects coastal ecosystem and classifies coastal areas into zones⁴. It prohibits developmental activities in CRZ I, the ecologically sensitive areas, but it allows development in permissible areas including CRZ II with restrictions. The Environment Impact Assessment (EIA) notification 2006 drawn with nation-wide application lays down a mandate for environment impact assessment (EIA) of development projects with significant environment impact. The manifest object of EIA is to reconcile the conflicts between environment and development and to ease the pitch for sustainable development. Both CRZ and EIA notifications are involved in the present case under comment. The impugned building project is a category ‘B’ project that needs State environmental clearance⁵. Obviously, to avoid a predicament of projects being blocked unnecessarily for abnormally long a period due to lethargy and distraction of the clearing authorities, a time-frame is provided for communicating the final decision of the impact assessment authority to the applicants whether it is positive or not. If he does not receive the communication within the time⁶the applicant may proceed as if the environment clearance sought for has been granted.⁷Obviously, the respondent builders have resorted to this deemed clearance.

Differing views of the High Court                             

The Single Bench of the High Court holds the post-construction environmental clearance a nullity and orders to demolish the building on the ground that the clearance accorded by SEIAA was not based on the recommendation of the State Expert Appraisal Committee.⁸The Division Bench of the court agrees with the reasoning on the illegality of the clearance but decides to retain the structure after imposing a penalty of Rupees one crore. It is true that no action was taken against several other violators not only around but also in other parts of the city with more proximity to the water body.⁹The court makes it clear that this fact does not deter the court from dealing with the present case in an appropriate manner. There are other more persuasive factors. The writ petitioner does not want demolition; he desires only to assert the rule of law.¹⁰DLF has met all requirements except environmental clearance. More importantly, the court is anxious to see that the damage caused to environmental balance on not getting clearance ‘is not to be widened on causing demolition, leaving concrete rubbles and remains/debris in the area, to be dumped into the river or elsewhere once the demolition is implemented.’¹¹

Censuring Negligence and Double-speak

Dismissing the appeal filed, against the decision of the Division Bench of High Court, the Apex Court saves the structure already built up albeit retaining the penalty imposed for not obtaining ‘prior’ clearance.¹²The court takes a hard look at the negligence of the regulatory agencies deferring from the grounds relied on by the courts below. It is made clear that in the all-important process of environmental clearance, the agencies went off at a tangent with conflicting decisions.

The CESS, the agency assigned to furnish a CRZ status report, makes a positive recommendation in May 2009 that the project area is situated in CRZ II and not in the prohibited CRZ I. On a second visit to the site, CESS changes its mind and reports that DLF had reclaimed part of the low-lying areas such as filtration ponds and thus, violated the prohibitions in CRZ I. Undoubtedly, this is contradictory to its earlier stand that the project proposed was in a permissible area.¹³Events seem to happen quickly. The revenue authority issues a stop memo. The petitioner, a resident of the locality who remained silent throughout, files a Writ Petition.

The Kerala State Coastal Management Authority (KSCMA)does not find any violation of CRZ norms when at first it decides to recommend the project to Ministry of Environment and Forest on 20.03.2010.Later,there is a surprising volte-face. KCZMA alleges that DLF had reclaimed land and violated CRZ norms, KCZMA approaches the Apex Court in appeal and vehemently argues for demolition.¹⁴

The U-turn of the Ministry of Environment and Forest is quite pronounced. Its earlier stand before the High Court is that the project is valid but the Ministry changes its stand and pleads before the Supreme Court, that there has been reclamation of water bodies in the prohibited zone and that the post-construction environment clearance is invalid.¹⁵

In the midst of these conflicting opinions and shifting stands, no wonder that the court is forced to express deep resentment and to slam at the utter neglect and fluctuating stance of the regulatory bodies despite making it categorically clear that if the large scale violations were proved, there would be no other alternative than bringing down the structure. The court is of the firm view that instead of flip-flop of various authorities, greater processual clarity and better understanding among them are necessary ‘for not leaving the developers in the lurch’ and ‘their large investments at stake’.¹⁶

The Decision

Although it has applied for environmental clearance satisfying all other essential requirements in 2007, DLF gets the clearance after a period of more than seven years. Needless to say, that the delay is abnormal but oppressive. No wonder, this lackadaisical attitude on the part of the authorities persuaded DLF to shelter its project under ‘deemed clearance’ and to complete it virtually by 2012.

It is true that the Apex Court does not nullify the environmental clearance as the courts below have done. Nevertheless, they record a specific warning that ‘in future, whenever permissions are required to come and are to be obtained before the commencement of construction, it would be no answer that the activity can be carried out without obtaining the permissions.’¹⁷Though not expressly specified, the warning indicates hidden dangers lurking behind the concept of deemed clearance. The developers may at any time abuse the position with or without the silent permission of the authorities. When permission is envisaged in a time bound schedule, the court wanted clarity on what is permissible and what is not. Manifestly, there was no question mark on the various permissions to DLF to carry on construction. The fear that some area lay in the prohibited CRZ I is already dispelled in the earliest report of CESS and the recommendation afforded by the appellant KCZMA on 20.03.2010. It is the view of Supreme Court that the matter should have been settled at that stage itself.

The conclusions of the High Court seldom find favour with the Apex Court who hold the violations alleged have not emerged with clarity.¹⁸CRZ land use map given early shows that in the past there was no filtration ponds in the area and consequently, there could not have been any reclamation by the DLF. Further, there were earlier reports that the canal lying near the construction is only a drainage canal, not a water body for the purpose of determining CRZ violations. All the procedural requirements were followed when the appellant KCZMA, recommends that the construction fell under CRZ-II and the narrow canal was not an impediment to the construction. When the State Expert Impact Assessment Authority (SEIAA) is created, the Ministry of Environment and Forest in its ‘own wisdom’ forwards the whole file so that the newly formed state authority can exercise its expertise for environmental clearance. One finds that on 31.10.2013, SEIAA, being the final authority, cleared the proposal after seeking explanation from DLF. This is what weighs with the Apex Court. For the authorities to say otherwise or contradict themselves would not be fair to DLF and would cause grave uncertainty if such an approach is permitted.¹⁹This is especially so in view of the contradicting stands taken by each recommending or deciding authority in different times.

Conclusion

With clear and unambiguous conclusions, the highest court of the land observes, that ‘whatever the manner in which the provision for clearance is worded, it should imply hence forththat a prior clearance and necessary clarifications should be issued by the authorities in a time-bound manner to obviate such situations in the future.’²⁰This is a strong signal that instead of dilly dallying, the administration should initiate actions at the earliest opportunity and avoid the abuse of ‘deemed clearance’.

In the court’s view, the policy for more single window clearance may have simplified the methodology of processing applications resulting in less uncertainty and better enforcement.’²¹One may say that the strategy may not be a panacea for the existing maladies of the system. There is no substitute for the vigilance and objective assessment by the authorities as well as for their commitment to the duty to protect and improve the environment. Bereft of these values, the very existence of laws is no guarantee that administrative agencies shall be efficient and laws operated and managed effectively. Inefficiency and negligence of the drowsy and uncaring authorities fail to preserve critical natural resources and adversely affect the quality of the ecosystem. Conservation is possible only when it is done with utmost care and attention. Needless to say, that sleeping regulators shall be awakened and made more responsible and disciplined.

Foot Note:

1.    2018 (2) KLT  = (2018) 2 SCC 203.

2.    Ibid. Such as building permission from the Municipal Corporation, NOCs from Pollution Control Boards and Fire and Rescue department and the site clearance from the Navy.

3.    See notes 6 and 7 infra.

4.    S.O. 19(E) dated 6th January 2011.

5.    S.O.No.1533 dated 14.09.2006. The SEIAA clears ‘B’ category projects. Until SEIAA is constituted, central authorities [Expert Appraisal Committee (CEAC)] will appraise and clear ‘B’ projects.

6.    Ibid. Paragraph 8(i), the time frame is 105 days after the recommendation, positive or negative, of Central or State environment appraisal committee is received. Paragraph 8(ii) provides 130 days for the communication if it is after the process of reconsideration.

7.    Ibid. Sub-paragraph 8(iii) affords the deeming mechanism. which runs, “In the event that the decision of the Regulatory Authority is not communicated to the applicant within the period specifiedin sub-paras (i) and (ii) above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or deniedby the Regulatory Authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Appraisal Committee concerned.”

8.   Antony A.V. v. Corporation of Cochin(2015 (1) KLT 178 p.187).

9.   DLF Universal Ltd v. Antony (2017 (1) KLT 438 p.459).

10.  Ibid p 460

11.  Ibid pp 458, 459(emphasis added).

12.  Kerala State Coastal Management Authority v. DLF Universal Ltd.(2018 (2) KLT =(2018) 2 SCC 203). Later in the month of April, 2018 the Apex Court dismissed KSCMA’s petition for review too.

13.  Ibid pp 221, 222.

14.  Ibid pp 210–214. It pleads its inability to move early as it has no enforcement mechanism and has to solely depend on the municipal body for enforcement. The Apex Court warned that KCZMA having a crucial role in preserving the environment in the coastal area cannot wash their hands off by the alleged lack of an enforcement force.

15.  Ibid pp.215, 216. It was argued that the environmental clearance by SEIAA under EIA notifi-cation was invalid without appraisal and approval by KCZMA under CRZ notification.

16.  Ibid p 220.

17.  Ibid p 221.

18.  Ibid pp 222, 223.

19.  Ibid p 223.

20.  Ibid. Italics is ours. The impugned order to deposit`1 crore can be treated as a fine for starting construction without obtaining prior clearance but the amount should go to KCZMA and not to the Collector.

21. Ibid p.224.

Justice Vis-a-VisJudgments  – An Analysis

(By Veena K.B., Judicial First Class Magistrate – II, Palakkad)

Introduction:

This was one of the first thoughts which triggered my consciousness when I entered Judicial Service as a Munsiff-Magistrate. Having completed only a few years in my service, I venture to share some humble thoughts on the subject.

To begin with, the term ‘Justice’ is not defined in any of our statutes, as it is not a simple ‘term’, but a ‘concept’ to be propounded. The concept of justice is writ larged in our administration of law and legal process. The term ‘Judgment’ is defined under S.2(a) of the Civil Procedure Code, 1908 in the following terms: “Judgment means the statement given
by the Judge on the ground of a decree or order”. It is the statement of reason for the Judge to arrive at the conclusion. Thus the reasoning is the soul of a judgment. In that we are guided by proof of existence and non-existence of facts and the presumptions of law, of facts and conclusive proof to arrive at the final decision. In that process, evidence is the ‘means’ to which the proof is the ‘end’.

Section 3 of the Indian Evidence Act, 1872 defines ‘proved’, ‘disproved’ and ‘non-proved’; which definition is the very basis of appreciation of evidence and the standard being that of a normal prudent man. The question at this juncture is, are we guided by the definition in arriving at our decision, or get into a most hyper technical view so to frustrate the administration of justice. I concede, that it is not in all cases that we are taken into the Kurushetra of ‘justice’ and ‘judgment’. But at times we may get entangled in both, searching for the ‘honeybees of Solomon’, to guide us to the truth.

Law is evolved to protect the honest and the vigilant and not for the cunning and the shrewd. Law is for the dispensation of justice and not for dispensing with justice. In the process of appreciation of evidence, law is to be applied to the facts proved and not vice versa.If the latter is done, it will only lead to the moulding of facts according to law and ultimately will disrupt the justice delivery system.

Case study

The point can be brought to light by one or two case study.

Case No.1:In a suit for partition, the defendant relies on a gift deed and the fact remains that there is absence of executant’s signature at the last page of the gift deed. The executant is no more and the gift remained unchallenged during the life time of the donor. Then the question is how fatal it is to enter a finding on the validity of the gift deed. According to the plaintiff, the gift deed is not at all a valid document, since the executant had omitted to put the signature at the ‘attestation clause’. On the other hand, the defendants prayed to non-suit the plaintiff by upholding the gift deed, as according to him, the attestation is not confined to any particular page of a document.

On that score, both sides relies upon the decision of the Hon’ble High Court of Kerala inBaburajan v. Parukutttyreported in (1999 (1) KLT 425), in which case, the testator omitted to put signature in one of the middle pages of the will and Hon’ble High Court took the view that since the testator had put the signature at the 1st page and at the ‘attestation clause’, the intention of the testator to bequeath is proved, the will cannot be held to the invalid. Then the next point is how the above quoted decision has got a bearing on the above issue. Section 122 of the Transfer of Property Act 1882 defines ‘Gift’, Section 123 provides for the attestation of the gift deed thus requiring the mode of proof as provided under S. 68 of Indian Evidence Act 1872. In the case in hand, attesting witness examined proved due attestation. It is pertinent to note that S.3 of the Transfer of Property Act, 1882, which defines “attested” also reads that “no particular form of attestation shall be necessary”.

So the point is, in the case where attestation, registration and circumstances under which the deed is executed, is proved, is it, justifiable to invalidate the deed on a most hyper technical view that the executant has omitted put the signature at the last page. Is it difficult to find that the attestation pertains to whole of the document and does not confine itself to the attestation clause. It is at this juncture, the above discussed point of application of law into proved facts becomes relevant to advance the course of justice.

Case No.2:The second case is where the plaintiff sues for lateral support for the property and the compound wall and the defendant contends that since the plaintiff has burdened his land with additional pressure, he is not bound to give support to the plaintiff’s property.

Illustration (e) to Section 7 of Indian Easements Act, 1882deals with lateral support. To quote:

“The right of the every owner of land that such land, in its natural conditions, shall have the support naturally rendered by the subjacent and adjacent soil of another person.

Explanation- Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the ‘subjacent and adjacent soil’ mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.”

The question at this juncture is whether the plaintiff by putting up a compound wall has lost his natural right of support in view of the explanation to the said illustration. Upon a technical application of law, it may follow that as and when the dominant owner alter the natural condition of his land, the servient owner can withdraw the support rendered by his land. But in that matter, the crucial question to be gone into is whether the additional burden, substantially and materially altered the dominant heritage and even in the absence of the imposition, the acts of the defendant is likely to cause damage to the plaintiff. That is, if he digs to the extremity of his property in a most careless manner, the same is actionable, since that act amounts to disturbance to right of lateral support and even if there is an additional burden on the dominant heritage, which he is liable to support only when it has ripened into an easementary right. So the crux of the matter, is that not only the natural condition of the dominant heritage, but also the act of the defendant being careless makes it actionable. The Hon’ble High Court of Kerala in Narayanan v. Sankaranreported in (1971 KLJ 599), discussed the point and it was held as follows:

“The relevant question would be not only whether there are additional structures or additional weight imposed on the land of the plaintiff but whether even without such an imposition, the acts of the defendant are likely to cause damage to the plaintiff. If it is likely to cause damage to the plaintiff, then plaintiff would be entitled to the injunction as prayed for”

And the same was later reiterated by the Hon’ble High Court in Ramakrishnan v. Devassy reported in (1988 (2) KLT 365). This illustration also emphasizes the above discussed
aspect of adherence to facts in the administration of justice.

Conclusion

My attempt was only to stress upon standard of appreciation of evidence in a given case, the yardstick of which is laid down in the most possible means in our law of evidence and not to depart from it for the sake of some hyper technicality. Let me close, by quoting the words of Mahatma Gandhi:

“Facts means truth, and once we adhere to truth, the law comes to our aid naturally.”

Taking Cognizance of an Offence – The Disillusionment Still Continues*

(By S. Abdul Khader Kunju, Asst. Public Prosecutor, Cherthala)

The Issue

When is a Magistrate said to have taken cognizance of an offence? This basic question is posed herein. The legal fraternity is completely cognizant that the issues concomitant to the magisterial act of taking cognizance of offence is always a contentious affair. Re-reading of this legal aspect has been propelled by the judgment of the Single Bench of the Hon’ble High Court of Kerala rendered in Joshy Varghese v. Mar George Alancherry(2018 (1) KLT 904).

The topic in this case was whether the Magistrate can order an investigation u/S.156 (3) of Cr.P.C. (the Code) by reverting back, after having examined the complainant u/S.200 of the Code. The Court ingeniously held that such a move is not permitted in the scheme of the Code, but in the course of discussion, the Court observed that the Magistrate has not taken cognizance of offence (nonetheless the complainant was examined) in that case till then. Here lies the question, when the Magistrate takes cognizance of an offence, and also, does this decision conveys the correct proportion of law.

The Facts in Joshy Varghese

In Joshy Varghese(supra) a complaint was filed alleging offences u/S.406, 420 and 120B of I.P.C. The relief sought was to forward the same for investigation u/S.156 (3) of the Code, but the Magistrate without paying any heed to that, decided to examine the complainant, and after examination of the complainant directed to produce his witnesses. At this stage the complainant moved the High Court with a prayer to direct the Magistrate to forward the complaint u/S.156 (3) of the Code. In that occasion the Court expressed the opinion as to the law of taking cognizance. In the words of the Court:

Evidently, it is true that the learned Magistrate has not so far taken cognizance of the offence on the complaint. At the same time, it is a fact that the learned Magistrate has decided to have recourse to the procedure for taking cognizance of the offence/offences on the complaint and that is the reason why the learned Magistrate has recorded the sworn statement of the complainant. The Magistrate was not satisfied with the sworn statement of the complainant alone for taking cognizance of any of the offences on the complaint, and that is the reason why the learned Magistrate has evidently directed the complainant to produce his witnesses for recording their statements.             (emphasis supplied)

And finally the Court declared the law that once the Magistrate decided to take cognizance of an offence on a complaint and has proceeded with accordingly, the Magistrate cannot go back to the stage of S.156 (3) of the Code.

Meaning of ‘Taking Cognizance’

No enactment defines the word ‘cognizance’, yet the judicial answer to this conundrum is well settled; the ratiocination of the judges, who found answer to this issue, is well acclaimed.

As early in 1910, the first High Court in India in Emperor v. Sourindra Mohan Chuckerbutty [(1910) ILR 37 Cal.412 ] observed that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.

Another earliest observation on the above question can be seen in the words of Das Gupta, J. in Superintendent And Remembrancer v. Abani Kumar Banerjee(AIR 1950 Cal. 437).

To his words:

What is “taking cognizance” has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,--proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

The above observations are not isolated ones. In a plethora of cases, the High Courts and the Supreme Court with approval have quoted the above findings of the Calcutta High Court, hence, now it is a well settled position of law that, when the Magistrate decides to examine the complainant or decides to proceed with the complaint (e.g. issuing summons to the accused without the examination of the complainant in case the complaint is by a public servant in his official capacity) other than to send it for investigation, the cognizance of offence is taken.

In Tula Ram v. Kishore Singh(AIR 1977 SC 2401), it was viewed thus:   

It seems to us that there is no special charm or any magical formula in the expression “taking cognizance” which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to, taking further action. Thus what Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations.

Examination of Complainant Only After Cognizance

The process of taking cognizance of offence requires nothing more than the decision of the Magistrate to proceed with the complaint or the final report of the police, under Chapter XV of the Code; it happens in the initial stage. In other words, the act of taking cognizance presupposes the examination of the complainant in complaint cases. In that sense, the Magistrate cannot proceed to examine the complainant unless he takes the cognizance of the offence.*It is held that when the case is adjourned for examination of complainant, the Magistrate has taken cognizance of offence. Some of the other cases where the Apex Court expressed the opinion that the Magisterial act of taking cognizance of the offence is over by the time he decides to move further after applying his mind are Cref Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd(AIR 2005 SC 4284), Narsingh Das Tapadia v. Goverdhan Das Partani(2000 (3) KLT 605 (SC) = (2000) 7 SCC 183), Devarapally Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors.(AIR 1976 SC1072).

Conclusion

There are some stages, established by the procedural law, in the prosecution of any case. Taking cognizance of offence by courts, being one of such stages, upon which the case steps forward in a criminal matter, assumes some importance. Unless the law is explained correctly by the courts, the decisions of which have the precedential value, there will be confusion and uncertainty among the lower courts and the legal sodality. The law, in the field of cognizance of offence, is being as mentioned above, in Joshy Varghese’scase (supra), it can be seen that, the Magistrate already had taken cognizance of the offence at the time he decided not to invoke Section 156 (3), but to resort to Section 200 of the Code. It is not because the Magistrate decided to take cognizance of offence, but for the reason that he has taken cognizance of offence by deciding to examine the complainant the scope under Section 156 (3) of the Code was closed. In fact, there is no stage of deciding to take cognizance of offence.So, the view of the learned Judge of the Single Bench of the High Court, that the Magistrate has only decided to take cognizance of offence after he examined the complainant, does not reflect the correct law, it seems, it is submitted.

Foot Note:

*State of West Bengal v. Bijoy Kumar Bose (AIR 1978 SC 188). Also See Sohoni’s Code of Criminal Procedure, 20th Edition, Page No.2569.