Criminal Procedure Code & Rules of Law in India

(By Thomas Maliyekkel, B.A. B.L., Advocate, Irinjalakuda)

The Central Law Commission is now reported to be visiting the States for collecting evidence and recievfng suggestions on the working of the Criminal Procedure Code, before submitting their final report to the Government of India and hence it is appropriate to review the working of Cr. Pro. Code vis-a-vis enforcement of rule of law in the various States in the Union of India.

Cr. Pro.Code is the main adjective law which deals with the administ­ration of criminal justice and among other things, it classifies the courts, defines their powers, prescribes the procedure for summons, pleadings, proofs, inquiries, trials, judgments and execution. It also deals with police investigations and the powers and duties of the police officers investigating offences, prevention of offences and maintenance of public order and peace. Therefore, its working has got an important bearing on the maintenance of rule of Jaw in the States.

With the experience of last general election in India, it is to be expected in future that parties or amalgamation of parties with scant respect for rule of law or parties with their moorings in totalitarian ideology are likely to come in power in one State or other in India. In West Bengal and Kerala, people be­longing to the opposition parties began to complain inter alia, that rule of law is being denied to them; their life and property are in danger; and that they are discriminated against in the matter of police help and withdrawl of complaints. Similar charges are being levelled against certain, other ministries in other States by opposition parties there. Hence it is high time for us to ponder over some independent machinery by which rule of law is being maintained in States irre­spective of ideological whims and fancies of political parties in power.

Rule of law is to democracy what oxygen is to animal life. Law consists of rules recognised and applied by courts in their exercise of functions of en­forcing and maintaining justice by means of the physical force of the State. It is justice speaking to men by the mouth of the State. In idea, law and justice are coincident. It is for the expression and realisation of justice that the law has been crested and no democracy can properly work and achieve its purpose unless rule of law prevails within its domain.

Democratic rights of a citizen in a democracy are inalienable and if the executive fail to use its sword in aid of administration of justice, that State has failed in its exercise of essential function of administering justice aid the result is democracy degenerates into a primitive barbarous system of society wherein practices of private vengeance, violent self-help, and collective defence (civil war) prevail. Therefore one finds that democratic society can exist only under the shelter of the State and the law and justice of the State is a permanent and ne­cessary condition of peace, order and civilization. That is why in all democratic forms of Government, whether it be Republican or Constitutional monarchy, rule of law is being zealously guarded by the litera scripta of the Constitution where there is a written Constitution, and by convention, practice, and social sanction where there is no written Constitution.

The founders of Indian Republic had this in mind when they advert to “Justice” in the preamble of the Constitution. Moreover, Article 14 in the chapter on Fundamental Rights of our Constitution directly enjoins that “the State shall not deny to an/ person equality before law or the equal protection of the laws within the territory of India. Rule of law is raised to the exalted position of Fundamental Right at the hands of the framers of our Constitution. Further, to safeguard administration of justice from the interference of the exec­utive which is controlled by the political parties in the scheme of working of our Parliamentary democracy, Article 50 of the Directive Principles obliges ”the State to take steps to separate the judiciary from the executive in the public services of the State.”

Public order, police and administration of justice are State items as adumbrated in List II of the seventh schedule of the Constitution. But Art­icle 256 makes it obligatory on the State to exercise its executive power so as to ensure the compliance with the laws made by Parliament and the existing laws of the State. The “law’’ and the “law in force’’ are defined in Article 13 (3) of the Constitution.* It is obvious that the above categories of law* take in Acts like Criminal Procedure Code, Police Act, and Indian Penal Code etc.

If the State fails to discharge its Constitutional obligations under Art­icle 256 over the administration of above items like Cr. Pro. Code and Police Act etc. in accordance with the mandatory and fundamental provision of Article 14, then the Union executive is empowered to issue directives under Article 257 to the State. Whether or not the State failed to carry out its Constitutional obli­gations is a question of fact and that can be ascertained by a fact-finding com­mission at the instance of the Union executive if it deems fit or otherwise satisfied by a factual report from the Governor concerned and thus President can act under Article 365 which enables the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Though the Union executive has over-riding powers under the Centrally biased Indian Federal Constitution, to effectively interfere when a State fails to discharge its Constitutional obligations, in practice, it may result in political difficulties for the ruling party in the Centre, more so in times when it has a narrow majority in the Parliament.

On the otherhand, the judicial remedy is to move the High Court or the Supreme Court for appropriate writs against the State; but to move the courts in all individual cases of infringement of one’s Constitutional rights is a laborious and expensive process and by its nature impracticable to serve as a general remedy to meet the magnitude of the situation. Therefore, apart from the drastic Constitutional remedy and the expensive judicial relief, one is inclined to think over some independent system by which rule of law is being scrupulously maintained in the States.

The ideal behind the sacrosanct principle of the separation of the judiciary from the executive will be complete only if law enforcement officers are also sepa­rated from the executive in the public services of the State on the analogy of separating judicial magistrates from the executive magistrates The police forces in the State can be conveniently bifurcated into executive (administrative) and judicial wings and the judicial police may be attached to the Law Enforcement Commission which will appoint its own prefects, prosecutors and pleaders.

The administrative police will be responsible to the Stats executive and their main functions will be maintenance of public order. The judicial Police on the other hand, will under take the prevention and detection of crimes, the collec­tion of evidence and the delivery of the accused to the examining tribunals. In France, the police is divided into administrative and judicial wings with distinct duties and functions and the French system has survived the tests of time and found successful. This proposal does not entail additional financial commitment to the State.

The Law Enforcement Commission can be constituted by amending the Cr. Pro. Code, a Central Act and an item in the Concurrent List and hence legislatable «, by Parlianent. Chapter If of the Cr. Pro. Code already provides for the constitu­tion of various criminal courts and their offices. Similarly a new chapter may be added to it by suitable amendment for the constitution of Law Enforcement Com­mission and its offices,’defining its nature, organisation and work. The Police Act and other relevant Acts and if need be, Constitution should be amended to meet the situation.

Though almost all States have separated judiciary from the executive, one finds remnants of past shackles still fettering the independence of the judiciary, for, even now under Cr. Pro. Code, authority is vested with the State executive to confer powers on the judicial magistrates, to withdraw complaints, to remit fines and to absolve sentence of imprisonment etc. If a judicial magistrate refuses to allow the request of the public prosecutor to withdraw a complaint on the initiative of the State, then the further conduct of the prosecution entails trouble because the police and the prosecutors are under the administrative control of the State executive. Even the Central Government had the bitter experience of appoin­ting its own pleaders to continue the prosecution of complaints originally launched by the State police in connection with the Central employees’ recent strike in Kerala.

It now behoves the I aw Commission to examine afresh the working of Cr. Pro. Code vis-a-vis the position of rule of law in the States and submit its suggestions to the Government of India and the Parliament should lose no time in taking positive steps to constitute Law Enforcement Commission and its offices. Eternal vigilance is the price of democracy.

Foot Note:

*13(3) (a) “Law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of the law;

(b) “Laws in force” includes laws passed or made by a legislature, or other com­petent authority in the territory of India before the commencement of the Constitution......etc.

 Paper Read in a Conference of the Law Officers of Kerala

Held under the Presidentship of the Advocate General on 22-2-1969 at Ernakulam By
Sri. P. Balagangadara Menon, Addl. Govt. Pleader, Kerala High Court.

The jurisdiction vested in the High Courts under Article 225 of the Con­stitution of India is frequently invoked by employers engaged in industry and agriculture for the grant of relief by way of Writ of Mandamus or a direction for protection of their life and property. According to the procedure now in force in our High Court, the petitioner can move an application under Article 226 of the Constitution and pray for an interim direction and the Court, on being satisfied that there is a prima facie case, admits the Writ Petition and may make an interim order. At the stage when the case comes uo for admission the State Government or the officers are not represented in the Court unless the State Government or the officers give instructions to the law Officers of the State to enter appearance and oppose the grant of interim direction. Once an-interim direction is made by the Court, it is often difficult to get the same vacated unless exceptionally strong grounds are made for the same. In order, therefore, to quickly and effectively deal with these cases the rules regulating the proceedings under Articles 226 and 227 of the Constitution may be suitably amended so as to make it obligatory on-the part of the petitioner to give advance notice of any application to be moved by him for the grant of interim order. If such an amend­ment is made to the rules it will not only facilitate quick disposal of cases by the Court but will also help the authorities in taking expeditious and effective action.

An analysis of the cases decided by the Court for one year reveals that the following are the circumstances in which the petitioners approach the Court with a prayer for” police protection. Employers pray for the issue of a Writ for directing the State and the Police Officers to afford protection for their factories and industrial undertakings. Big as well as small agriculturists also pray for direction for giving adequate protection for their property and for carrying on agricultural operations and also for the issue of a direction for protection of their personal liberty. In some industrial establishments, the workers may be on strike and then petitioners pray that they may be given adequate police help to carry on the work with loyal workers and that they may be given help of the police to bring raw materials inside and take finished goods outside the factory.

The Constitution of our country guarantees freedom to acquire and own property and the freedom to assemble peaceably without arms. When an indus­trial dispute arises between the employers and the workmen there is likely to be conflict between the interests of the employers and the workmen. The workmen in exercise of their right of collective bargaining may carry on demonstrations, launch strike: and indulge in other activities with a view to compel the employers to agree to their claims. This frequently gives rise to problems of law and order but in order to appreciate and understand the points in controversy a clear dis­tinction has to be borne in mind between the rights of the workmen, the rights of the employee’“? and the duty of the State. What are the rights of the employers? The employers have the right to carry on business peacefully. They have the right to acquire and own property. On the other hand, the workmen have the right to work and have also the right not to work. They have the right to bar­gain collectively against the employers and for wresting from them better terms and conditions of service and so long as the employers and the workmen exercise their rights in a peaceful and orderly manner no question of any interference by the police will arise. But the moment either employer or the workmen violate the law of the land it is undoubtedly the duty of the police to interfere and dis­charge the duties vested in them by law. But, the duty of maintaining law and order, rests with the executive Government and Courts normally will not and can­not interfere with that function. The Constitution of our country has in its preamble, resolved to secure to all its citizens social and economic justice. In this connection, the following observations of an eminent Chief Justice of India about the imperative and urgent necessity of securing social justice to economi­cally weaker sections of our people may with advantage be referred to. Chief Justice Gajendragadkar in his Lajpatrai Memorial Lectures stated thus:

“Let us never forget that to the large class of citizens who suffer from stark poverty and its inevitable accompaniments, notions of individual freedom and liberty are apt to sound as empty words which obtain popular currency only in the drawing-rooms of the rich and well-to-do classes of citizens; for it is plain that hunger makes men impatient and angry, and impatience and anger lead to blindness. In their struggle to face the urgent and pitiless problem of poverty, citizens may not be able to appreciate the theoretical signifi­cance and grandeur of the concept of individual freedom and liberty. The concept of social justice is thus a revolutionary concept which gives meaning and significance to the democratic way of life and makes the rule of law dynamic. It is this concept of social justice which creates in the minds of the masses of this country a sense of participation in the glory of India’s political freedom. When Indian democracy seeks to meet the challenge of socio-economic inequality by its legislative process and with the assistance of the rule of law, it virtually seeks to achieve economic justice without any violent conflicts”.

Therefore it is necessary and inevitable that a modern democratic welfare State has to approach the problem of the rights of employers and workmen in an entirely different way from that of a State which concerned itself with purely maintenance of law and order. Before our country became independent when workers were carrying on agitations for advancement of the rights the police consciously or unconsciously was acting in such a manner that the employers were in an advantageous position and in many cases the agitations of workmen were suppressed with the help of the police. But a modern democratic welfare State cannot afford to adopt this course and necessarily has to direct its police to remain neutral in conflicts between capital and labour. I think that the policy of the State in this matter is not only legal and fair but is consistent with the principles of justice, fair-play and good government. In this connection, it will be interesting to recall the declaration of the police policy by the first Government of Kerala. The Chief Minister at a Press Conference at Trivandrum on 23rd July 1957 made the following observations on the role of the police in maintenance of law and order:

“It has been the practice of previous Governments that, at the slightest sign of workers and peasants, unrest, leading to demonstrations, strikes, hartals or satyagraha, the police was rushed to help the employers, landlords etc., to suppress the movements, pro­hibitory orders were issued and security proceedings launched and lathi charges and firings ordered, and such use of police force had come to be considered as part of the rule of law. The Government, therefore, repudiate the charge made against them that their policy of not giving capitalists and landlords the assistance and protection, which they have so far been getting in the matter of suppressing the working class and peasants’ struggles, is a violation of the Rule of Law. They, on the other hand, hold the view that such use of the police in favour of the owning classes is a violation of the fundamental rights of the toiling classes, the right of collective bargaining accompanied by the right to resort to strikes or other forms of peaceful direct action. Resort to such repressive measures as Ss.107, 144 etc., will not be made in order to suppress a movement of any section of the people; the right of organisation, of collective bargaining and of direct action will be guaranteed to all sections of the people. But no direct action will be allowed to go beyond the limits of peaceful action laid down above. The person and property of every individual and family will be; protected.”

This naturally raises the question as to what are the legitimate rights of the workers.

In a recent decision the High Court of Calcutta has clarified the position and has observed that there is no immunity for the members of a Trade Union for being dealt with for violation of law except that they will not be liable for criminal conspiracy if they collect together peacefully for the purpose of bargai­ning for their rights. Chief Justice Sinha has made the following pertinent observations:-

“The net result of the decision set out above is that Ss.17 and 18 of the Indian Trade Unions Act grant certain exemption to members of a Trade Union, but there is no exemption against either an agreement to commit an offence or intimidation, molestation or violence where they amount to an offence. Members of a Trade Union may resort to a peaceful strike that is to save cessation of work with the common object of enforcing their claims. Such strikes must be peaceful and not violent and there is no exemption where an offence is committed. Therefore, a concerted movement by workman by gathering together either outside the industrial establishment or inside within the working hours is permissible, when it is peaceful and does not violate the provisions of law. But when such a gathering is unlawful or commits an offence then the exemption is lost. Thus, where it resorts to un­lawful confinement of persons, criminal trespass, or where it becomes violent and indulges in criminal force or criminal assault or mischief to persons or property or molestation or inti­midation, the exemption can no longer be claimed.”

The legal position seems to be the same in England and while the workers have the right to picket in front of an employer’s business in furtherance of a trade dispute law does not permit any picketing which involves any violent activity. The question has directly come up for consideration and Courts in England have held that while the workers have a right to picket in front of factory and business premises it is the duty of the police to take steps for pre­vention of breach of peace.

In a recent case Lord Parker, Chief Justice of England has observed thus:-

“The Court has been referred to a great number of cases both Irish and English dealing with the position when a Police Constable can be said to contemplate a breach of the peace and to take action to preserve it, but I find it is unnecessary to refer to those cases. It seems to me that the law is reasonably plain. First, the mere statement by a constable that he did anticipate that there might be a breach of the peace is clearly not enough. There must exist proved facts from which a constable could reasonably have anti­cipated such a breach. Secondly, it is not enough that his contemplation is that there is a remote possibility but there must be a real possibility of a breach “of the peace”.

The law in the United States of America is also the same. The Supreme Court of United States in the case of National Labour Relations Board v. Fansteel Metal Corporation has held that while workmen have a right to picket in furtherance of a trade dispute they are not immune from being dealt with in accordance with law if they commit offences punishable under criminal law of the land. Chief Justice Hughes speaking on behalf of the Court has stated as follows:-

“For the unfair labour practices of respondent, the Act provided a remedy. Inter­ference in the summer and fall of 1936 with the right of self-organisation could at once have been the subject of complaint to the Board. The same remedy was available to the employees when collective bargaining was refused on February 17, 1927. But reprehensible as was that conduct of the respondent, there is no ground for saying that it made respond­ent, an outlaw or deprived it of its legal rights to the possession and protection of its property. The employees had the right to strike bat they had no licence to commit acts of violence or to seize their employer’s plant. We may put on one side the contested questions as to the circumstances and extant of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buildings was itself a wrong, apart from any acts of sabotage But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its Property or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labour dispute or of an unfair labour practice would be to put a premium on resort-to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society”.

Norman Arthur Citrine, who is an acknowledged authority of labour law and labour relations in England; has observed that when picketing ceases to be peaceful and becomes an obstruction or nuisance, the picketeers are liable to be dealt with in accordance with the provisions of criminal law.

‘If the manner of the picketing ceases to be peaceful or becomes an obstruction or a nuisance, or endangers the public peace, the picketing will cease to be lawful. Thus, if a picket commits a private nuisance, as by violently and continually hanging on the door, shouting, obstructing ingress or egress, or otherwise seriously interfering with the enjoyment of the house or if he commits a public nuisance such as behaving in a manner calculated to cause a breach of the peace, or unreasonably obstructing the highway, his common law right to picket and his right to “attend” under the Section will cease and neither will protect him from civil or criminal liability for any of these acts, or for any “watching or besetting”, with a view to compel, which he may also have committed. So also if the picketing is carried out in such numbers or otherwise in such a manner as to be likely to intimidate those subject to it, or to obstruct or molest them against their will, it will be unlawful. Any show or threat of violence, or any other unlawful threat likely to create fear in the mind of a reasonable man will render picketing unlawful, and may make it criminal. Pickets are therefore not entitled, in order to compel people to listen to them, to obstruct them by deliberately standing in their way or catching hold of their arms. Nor are they entitled to obstruct the passage of vehicles by lying down in the highway in front of them. Neither may they continue to pester, i. e. molest those persons who do not wish to listen and who have requested them to desist.”

The maintenance of law and order is an executive function of the State and Courts normally do not and will not interfere in the exercise of such fun­ction. Even if the Court interferes it is doubtful whether the Court has power to say in which way the administration of law and order must be carried out. That essentially is a matter which the executive Government has to decide.

In cases in which police protection is sought for the High Court normally will not interfere if the authorities have exercised their jurisdiction vested in them and will not and cannot direct the exercise of function in any particular manner. But, if there is any violation of a statutory duty vested in the autho­rities and the High Court is satisfied that there has been a deliberate refusal to discharge such duty the Court may in appropriate cases issue directions to them for discharging duties imposed by law. What then is the extent of jurisdiction of the Courts interfering with the duties of police in maintenance of law and order? The answer to this question can be found in a decision of the Privy Council. Lord Porter who delivered the judgment on behalf of the Board has stated thus:-

“Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he maybe duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Criminal Procedure Code, to give directions in the nature of habeas corpus”.

In conclusion I desire to emphasise that law like all other human instit­utions can never be static. As society advances law must also adapt itself to meet new and challenging situations. The traditional concept of rule of law requires a change in the light of social and technological developments in a modern democratic society. We must adapt a progressive and dynamic concept of the rule of law.

This is Nixon’s Land Calling

(T. G. John, Advocate, Trichur)

The U.S. Supreme Court rarely rebukes individual attorneys, but last year a unanimous 9 to 0 murder conviction of a Cab-driver LLoyd Eldon Miller (Junior) carried a blunt reprimand. Miller had been accused of the brutal rape-murder of an eight year old^ girl near Canton-Illinois and the Court was convinced that he did not get a fair trial. It charged Fulton County Prosecutor Blaine Ramsey and his special assistant, Roger Hayes with deliberately misre­presenting evidence by repeatedly waving a’bloodstained’ pair of men’s shorts before the jury. Justice Potter Stewart remarked that in the context of the crime, the gruesome emotical impact upon the jury by the dramatic exhibition of the under-pants was incalculable.

Moved by the Court’s angry words the Illionois State Bar Association ordered a full-scale inquiry by its Grievance Committee. After nine months’ of probing into the prosecutor’s conduct the Committee has rendered a verdict of its own Its report not only clears Ramsey and Hayes of all wrong-doing but also concludes that it was really the Supreme Court that misapprehended the acts! Misapprehended or not the major facts of the case remain undisputed. Little Janice May was found fatally beaten along the railroad tracks at Canton in November 1955. Miller was arrested two days later and kept under police custody for 52 hours and then persuaded to confess after the Police told” him that one of his pubic hairs was found in the victim’s vagina. Miller later recanted the confession and the hair, which was not his, was never introduced as evidence. Instead, Prosecutor Ramsey relied on the red-stained underpants found a mile from the scene of the crime. They were smeared with the girl’s blood, he told the jury, and discarded by Miller after the assault.

The prosecution never established that the shorts were Miller’s or men­tioned that they seemed too small for him. Not until. 1963, seven hours before Miller’s oft-postponed date with the execution, did his lawyers win permission from a Federal Court Judge for an analysis of the shorts by a defence Chemist. No blood was found on the twelve threads the Chemist was given for analysis and he reported that the red marks were only paint. Prosecutor Ramsey then admitted that he had known all along that there was paint on the pants!

Portraying the paint-spattered shorts as heavily stained with blood seemed to Justice Stewart a clear attempt to deceive the jurors. But the Illinois Bar Committee insists that the Prosecutors were merely following the expert view of a State Chemist. His pre-trial analysis, says the Committee, indicated that there was blood of the victim’s type on the shorts. The fact that the shorts were also paint-stained, the Committee remarks, was quite immaterial. The defence would still have to explain away the blood.

x                                          x                                   x                                x

Tailpiece;Her lawyer wanted to know if the lady had ever attacked her husband.

“I did throw an egg at bum once and I threw a lukewarm cup of coffee” testified the wife of Detroit Mayor Jerome P. Cavanagh, 40,

Q: Was there any provocation?

A: “Yes, I was making a Phone Call in the kitchen and he gave me a good whack as he went by”.

Q: A friendly tap or a rough one?

A: “No, Sir, it was not friendly”.

So ran the dialogue as the Mayor of Detroit and his wife took their do­mestic troubles to Court last year. She aske& for a legal separation; he asked for a divorce and each asked custody of their eight children, with the Judge reserving decision after two days of testimony. Mary Helen accused Jerry of excessive drinking while he charged that she was addicted not only to the bottle, but to mule skinner’s language!

CORONA AND THE LAW

(M. Marcus, Advocate, Ernakulam)

With the spate of Industrial Development in our Country, the use of electric energy has been widespread. The drawing of High tension overhead lines under the provisions of Indian Electricity Act has made the vast area, of land traversed by the electric lines (strings) suspended from electrical towers. The very sky appears to be palisaded from the earth when we look at the milky way. It is not doubted for a moment as to the quantum of ultimate benefit from this net work of electrical lines as far the Industrial progress of the country is concerned.

It is a truth that private immovable property has been affected by the drawing of these High tension lines and the courts of the land have been engaged in awarding compensation for the trees cut and ocher damage done to facilitate the stringing of these lines. We should not lose sight of the fact that the Lawof Torts has “always found the industrial expansion ‘:a fertile ground” of Actions.

The learned reader must be familiar with a luminous envelope and a hizzing noise around these High tension lines if he has chanced to note the same during his solitary ramblings across or near a private property which is bur­dened by these suspended High tension lines. This luminous envelope and noise referred to notable around the lines is designated CORONA DISCHARGE in Electrical Terminology.

The natural consequence of Corona Discharge has been subject of study by Experts in America specialising in the field of electrical energy.

“Electrical Transmission and Distribution Reference Book” 1950 Edition Chapter III published by Westing House Electrical Corporation, Pensilvania, U. S. A. at page 56 to 60 dealing with “Corona Release” mentions that the Corona Release takes place due to the breaking down of the air surrounding the electrical conductor when the electrical energy exceeds a critical limit in the conductor. We should know that air by itself is not a conductor of electricity; so unless it is made conductor it remains innocuous. Now when Corona Release takes place the nature of the air surrounding the conductor changes and air assumes the character of a conductor of Electric Energy. This transformation of simple and harmless air into a dangerous substance is referred to in “The Prin­ciples of Electric Power Transmission” by Waddicor (Chapman & Hall Ltd., 4th Edition, London). This feature occurs due to the electrostatic strain. This is a potential danger. This release of Corona has been traced to produce Radio interference and scholars in America have already wrote about it as evidenced by “Radio Interference Suppression in Canada” by Merriman (A.I.E. Transaction papers No. 47-140 U. S. A.) The same matter is dealt with in.

“Effect of Radio Frequency of a Power system in Radio receiving system”, by Aggers Pakala & Stickel-A. I. E. Transaction papers Vol. 62 of 1934, pages 169 to 172 . From this we can draw the idea that the Corona is capable of causing damage at least by way of radio interference and it is not improbable that it might affect other costly articles like television set, air conditioner etc.

From what has been mentioned above it is clear that the trouble lies in allowing the escape of electrical energy into the air which makes a dangerous transformation of the air as mentioned.

We have to examine the impact of corona on the Law of torts. It is admitted rule that Statutory Authority is statutory immunity but there is an important qualification for it and that is there should not be any negligence:

Negligence has been defined as “failure to use the requisite amount of care required by Law where a duty to use care exists” Riddle v. Ried 1943 A.C. 1-31. This raises the question of reasonable forseability of injury. Charlsworth “On Negligence” 3rd Edition, Page 13 observes “what may be reasonably foreseen in a relevant circumstance is a question of Law though it is perilously near to a question of fact”. In Donoughue v. Steenson MacMillian J. speaking about the degree of care required observes that it depends upon the magnitude of the risk and in the handling of dangerous things “the Law exacts a degree of dili­gence so stringent as to amount practically to a guarantee of safety”.

The fact is that the High tension overhead lines drawn by the Electricity Board is not at all insulated. This absence of insulation is a serious situation since damage could ensue and it can be foreseen. It would be relevant to refer to Page 323 Charlsworth “on Negligence” where the author observes “wire carrying electric current should be kept properly insulated and neglect of this duty causing damage is actionable,”

Commenting on the rule in Rylands v. Fletcher on page 781 of his work “cases on the Law of Torts” Lord Wright visualises the possibility that to make a defendant liable, it-may not be necessary that the dangerous substance should be collected strictly speaking on the land of the defendant. But it is sufficient if the defendant collected the dangerous substance in containers belonging to him though such container be situated in another’s property i.e. the defendant’s gas pipes laid in the property of the plaintiff. The case of “Charring cross” is on the point. The only point is that the pipe or main whatever it may be which contained the dangerous substance should have been maintained by the defend­ant and it is not necessary that the escape should have taken place in the defend­ant’s premises. This aspect of the matter was subject of judicial comment in Ekstrom v. Deagon and Montgomery 1946 1 D. L. R. 208. Parke J. holding defendant liable said: “if a person brings on his own lands a dangerous sub­stance which escapes and injury results to another, for which he does become liable, how much more would a person who takes a dangerous article on another’s property and causes damage to the latter be liable? Page 785, Cases on Law of Torts by Wright, 3rd Edition.

What is attempted to point out is that at present the Courts are engaged in giving compensation for the loss or injury said to have occurred to immova­ble property pursuant to the drawing of overhead High tension lines and judicial opinion has also been extended, to the determination of the quantum of damages that could be awarded in relation to land that might have been affected conse­quent to such “stringing” of wires provided, a fall in the price of land so affected could be proved.

I apprehend that the day is not far to see that the Corona Danger may infest the costly electrical articles kept in houses over which High tension lines might be drawn. This would materially diminish the comfort and solace of life which the Law of Torts jealously guards. Unless a thorough and good insulation is provided for these lines they will prove to be injury releasing machines and for which those who own and possess it would be liable in damages. In a free society right to property movable or immovable is not a matter to be trifled with.

The March of Law

 (T. G. John, Advocate, Trichur)

England, the land of Edward Coke, has again stolen a march in the legal arena, bypassing the Abortion Act in April 1968.

The Act is of far reaching importance and consequence. Under it, it is no longer an offence for a medical practitioner to terminate a pregnancy, provided two registered practitioners sincerely believe that the pregnancy might endanger the mother’s life or health or that of any existing children of the family. Abortion is further permitted if the child to be born is expected to be handi­capped by physical or mental abnormalities. The Act says that in determining whether a continued pregnancy would involve risk to health, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment. Operations are to be performed in a National Health Hospital or a place specifically approved by the Ministry of Health where Chief Medical Officer must be notified of all abortions. Finally the Act has a conscience clause enabling doctors to contract out of undertaking abortions.

It is very interesting to note the various phases through which this im­portant piece of social legislation had to pass through before it became law. The whole thing was sponsored by the Abortion Law Reform Association headed by Mrs.Madeline Simms. Progress was very slow till the 1960’s when under the impact of the Thalidomide tragedy support for the Association grew. When the labour victory of 1964 swept a new generation of M. Ps. into the House, the association was assured of a more receptive hearing in high places.

Like all pressure groups, Abortion Law Reform Association kept a watchful eye on the Parliamentary ballot which entitled winning MPs to in­troduce private member’s’ bills. It soon fastened upon David Steel, a young Liberal M. P. to introduce the Abortion Bill. There was a wave of fierce oppo­sition. Roman Catholics compaigned against the Bill; the British Medical Association opposed it. Birmingham Gynaecologists got together to mount a concerted attack on its provisions. Both in the Commons and the Lords, a number of wrecking amendments were introduced but in last October it was approved by both the Houses.

Of the sixty five private clinics which have applied for licence under the Act, six are reported to have been turned down. Some Doctors are reluctant to hand over the private records of abortions to the health authorities as the Act demands and are protesting to the Minister of Health. The number of Doctors who may contract out under the conscience clause may be much bigger than anticipated.

Tailpiece; Mrs, F. Silvester, a native of Herford received a ticket for parking on a single yellow fine, on April 11. She immediately despatched a cheque for §2 to the City Justices with a little rhyme which went like this:-

“No parking crime was my intent,

Towards one shop my steps were bent;

I humbly beg your Lordships pardon,

For penance I will weed my garden”.

The compliments slip from the clerk to the Justice which accompanied the receipt a couple of days later bore this anonymous reply.

“Receipt herewith returned intact,

Parking in Herford is in fact,

A problem we should treat with care,

For fines are imposed on those who dare!”.