Doubts on Doubts

(By Girish Panju M.S., Deputy Director of Prosecution, Kottayam)

“The Judge, even when he is free, is still is not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw inspiration from consecrated principles. He is not to yield to spasmodic sentiment to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life”(Benjamin Cardozo).

Criminal trial is meant for doing justice to the accused, victim and the society at large so that law and order is maintained (Ambika v. State Delhi Admn.(2000 SCC (Crl.) 522). The paramount consideration of a criminal trial is to render justice and to convict the guilty and protect the innocent. For that the hands of the court cannot be tied up with the fetters of technical procedures so as to prevent them from arriving at the truth. Criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It is too panic to say that now a days unmerited acquittals become general, and they tend to lead a cynical disregard of the law. Miscarriage of the justice arises from the acquittal of the guilty not less than from the conviction of an innocent. See Gangadhar Behra v. State of Orissa(2003 Cri.L.J. 41 (SC)) and State of U.P. v. Anil Singh(AIR 1988 SC 1998). It is not judicial heroism to blindly follow the repeated saying that let a hundred guilty men may be acquitted, but let not one innocent be punished. As rightly observed by our Apex Court in Jayal Sahu v. State of Orissa(1994 Cri.L.J. 2254). “An exaggerated devotion to benefit of doubt is a disservice to the society”. Acquittals on the grounds of irrelevant contradictions, irrelevant omissions and due to high technicalities are not a welcome trend.

Each trial has to be conducted within the four corners confined by the Evidence Act. “Court must endeavour to find the truth. There would be failure of justice not only by an unjust conviction but also by the acquittal of the guilty for unjustified failure to produce reliable evidence. Of course the rights of the accused have to be kept in mind and safeguarded,but they should not be over emphasized to the extent of forgetting that the victim also have rights.”See State of Maharashtra v. Dr.Praful B.Desai(2003 (2) KLT SN 35 (C.No.45) SC =2003 Cri. L.J. 2033 (SC).

Section 5 of the Indian Evidence Act stipulates that evidence may be given of fact in issue and relevant fact. Hence we can safely arrive at the conclusion that courts are concerned only with two types of facts and they are (1) fact in issue and (2) relevant fact. In a criminal prosecution the golden principle of jurisprudence is the immunity available to the accused i.e., the presumption of innocence and except in rare occasions the burden of proof is always on the part of the prosecution. As far as a criminal litigation is concerned the fact in issue means “Those facts that are necessary to be proved or disproved to establish the charge against an accused or to establish a defense. A fact is relevant to a fact in issue when the former fact is connected with the later fact in a particular manner or in anyone of the ways referred to in the provisions in Sec.5 to 55 of the Indian Evidence Act.

Fact in issue is the principal matter in dispute and relevant facts are facts which directly or by inference proves, disproves the fact in issue. The principal fact to be proved is known as “Factum probandum”and the evidentiary facts which follows the principal fact is known as “Factum probans”. Section 3 of the Indian Evidence says about the yardstick to be applied for the evaluation of evidence. It stipulates that the supposition of a prudent man is the standard to evaluate whether the material before the court can reasonably be acted to conclude whether a fact exists or not. It is pertinent to note that the legislature in its wisdom includes the words ordinary prudent man and not a juristic or intellectual man.

There are three features of evidences. They are

1.        Relevancy

2.        Admissibility

3.        Probative value

If a fact is relevant and admissible it is counted in evidence. But if a fact is admissible in evidence, but not relevant it cannot be admitted in evidence. After the admission in evidence the court will consider the probative value of evidence. Thus it can be seen that the court has to consider the admissibility first and then its relevancy and finally the probative value. The communication made by a spouse during marriage or professional communication between the counsel and his clients may be relevant in some cases. But it is not admissible and hence cannot admit in evidence. The questions put by the defense to the prosecution witnesses in cross examination only for the purpose of testing the veracity or to impeach the credibility is of nor relevance in most cases. But sorry to say that it is admissible in evidences unless and until it became indecent, scandalous or intended to annoy or insult the witnesses. Evidence is the medium of proof. It is the instrument by means of which fact in issue or relevant facts are brought before court. As already stated all admissible fact are not relevant. S.3 further states that a fact can be proved, disproved and not proved. In most of the acquitted cases the prosecution neither proves nor the defense disproves the fact in issue to the satisfaction of the court. Therefore the case will come under not proved beyond reasonable doubt and the benefit of doubt will be given to the accused. In this juncture it is significant to note what is benefit of doubt.

In the State of Haryana v. Bhagirathreported in (1999 (2) KLT SN 69 (C.No.74) SC) our Apex Court held the view that it is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end. Unfortunately a misconception is being prevailed in the legal fraternity with respect to evaluation of the evidence and benefit of doubt. In Bhogam Bhai v. State of Gujaratour Hon’ble Supreme Court has got benevolent opportunity to discuss about the guidelines for evaluating the evidence. Apex Court cautioned the trial courts that over much importance cannot be attached to minor discrepancies and it cannot be benefited as reasonable doubts because

            1.         Witnesses cannot be expected to have photographic memory. Witness is not as videotape is played.

            2.         During the crime the witnesses will be overtaken by events. He would not have anticipated the occurrence which so often has an element of surprise.

            3.         Power of observation differs from person to person. What one may notice, the other may not.

            4.         People cannot accurately recall conversations and reproduce the same words used by them or heard by them.

            5.         In regard to the exact time or the time of duration of an occurrence they may make statement by guess. The sense differs from person to person.

            6.         They may not be able to recall the sequence of events. Witness is liable to get confused or mixed up when interrogated later.

         7.         A witness though wholly truthful is liable to be overawed by the unfamiliar court room and the piercing cross examination made by the counsel. Usually they became perplexed and get confused.

This does not mean that the role of test of cross examination for determining the veracity is to be minimized. As rightly observed by our Hon’ble Supreme Court in State of Himachal Pradesh v. Lakhraj((2000) 1 SCC 247) that the material discrepancies are those which are not normal and expected from a normal person. When a witness is subjected to a lengthy and attacking cross examination there is always a possibility of witness committing mistakes which can be termed as omissions, improvements and contradictions. Therefore these infirmities will have to be appreciated in the background of ground realities, which make the witness confused because of the filibustering tactics of the defence counsel. See Jai Shee Yadav v. State of U.P.(2005 (1) KLT SN 5 (C.No.7) SC). Always it is to be borne in mind that practically cross examination is a battle between a well equipped legal practitioner and an ignorant litigant who suffered a lot during the occurrence and continuing the trauma during the investigation and even in the trial. Hence the cardinal question is whether the inconsistencies will touch the fabric of the prosecution case? If it is so definitely it is fatal to the prosecution.

The wrong conceptions among the legal community that 161 statements are the pillars of the prosecution cases is the most panic thing. It is funny to say that they consider it as a holly cow or as sacred Bible. Giving undue importance to the 161 statement prepared by a police officer at his whims and fancies at the cost of the poor and ignorant victims is the most pathetic thing. 161 statements are purely the answers given to the question put by the investigating officers at the time of investigation. They are the answers which is relevant in the eye of a police officer. But on examination of the witness before the court either by a prosecutor or by the defence lawyer the witness will be compelled to answer more aspects on the question put to them. Unfortunately most of our friends think it as a serious aspect which diminishes the scope of the prosecution case. (See AIR 2000 SC 1833).

The legendary Indian Jurist of all time Justice V.R.Krishna Iyer while pronouncing judgement in Inder Singh & Anr. v. Delhi Administrationreported in (AIR 1978 SC 1091) held as follows.

“Credibility of testimony depends considerably on a judicial evaluation of the totality and not an isolated scrutiny. If a case is proved too perfectly, it would be urged that it is artificial. If a case has some flaws it is inevitable because human beings are prone to err. Proof beyond reasonable doubt is a guideline and not a fetish. A guilty man cannot get away with it because truth suffers from some infirmity when projected through a human process. Judicial quest for perfect truth often accounts for police presentation of foolproof convocation. We must be realistic.”

As laid down in Dharmarajan v. State of Keralareported in 2014 (2) KLT SN 62 (C.No.81) = 2014 Cri.L.J. 3162), “Creating doubts for the purpose of doubt is not a reasonable doubt. In this regard it is worth mentioning the dictum laid down by the Hon’ble Apex Court in Yogish Singh v. Mahabeer Singh & Ors.(AIR 2016 SC 5160) that it is the cardinal principle of criminal jurisprudence that guilt of the accused must be proved beyond all reasonable doubts and it is worth to reproduce the observation made by Justice Venkatachaliah in State of U.P. v. Krishna Gopal & Anr.(1988 (2) KLT SN 46 (C.No.62) SC = (1988) 4 SCC 302) that “Doubts would be called reasonable if they are free from zest for abstract speculation. Law cannot afford any favouritism other than truth. To constitute reasonable doubt it must be free from over emotional response. Doubts must be actual and substantial doubts as to the guilt of accused arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon the reason and commonsense. It must grow out of the evidence in the case.” Justice further observed that “The concept of probability and its degree cannot be obviously be expressed in terms of units to be mathematically enumerated as to how many of such unit constitute proof beyond reasonable doubts. There is an unmistakable subjective element in the evaluation of degree of probability and question of proof. The protection given by the criminal process to the accused is not to be eroded, at the same time uninformed legitimization of trivialities would make a mockery of administration of criminal justice”. The above said words of the Supreme Court apparently show its genuine anxiety about the misconceptions in the field of appreciation of evidence.

A Case of Judicial Contradiction

(By Kaleeswaram Raj, Advocate, Supreme Court of India and High Court of Kerala)

Article 142 of the Constitution contains a peculiar provision. It empowers the Supreme Court to pass orders “for doing complete justice in any cause”.  In a recent episode, the apex court has not only erased its own judgments issued under Article 142 but rather contradicted itself, that too in a matter of great public concern.  And quite strangely, this escaped the attention of the legal fraternity and the media at large.The diametrically opposite directives in the highway liquor ban case are astounding. The court has not only erred in its conclusion, but in its processual approach as well.

The Apex Court, on 15th December 2016 in State of Tamil Nadu v. Balu (2017 (1) KLT 132 (SC)) banned liquor vends along the stretches of national and state highways across the country.  The judgment found its rationale in the repeated policy decisions in this regard by the Centre since 2007, which were however honoured only in their breach by the States.  Relying on certain statistics relating to deaths caused due to drunken driving, the court issued the unconventional directives prescribing a 500 metres minimum distance from national and state highways, for the sale of liquor.  The court justified itself by saying that by way of the ban it “does not fashion its own policy but enforces the right to life under Article 21 of the Constitution, based on the considered view of expert bodies”. Thus, in Balu,the court inter aliaheld that the prohibition “shall extend to and include stretches of such highways which fall within the limits of a Municipal Corporation, city, town or local authority”.The court rejected the contentions to the contrary and held that there is “no rational basis to exclude stretches of national highways and state highways which fall within the limits of a Municipal or local authority from the ambit of the suggested prohibition”.  According to the judgment, “such exclusion would defeat the policy since the presence of liquor shops along such stretches of a national or state highway would allow drivers to replenish their stock of alcohol, resulting in a situation which the policy seeks to avoid in the first place”. Any exception to such liquor vends in the cities, according to the court, would be “wholly arbitrary and violative of Article 14 of the Constitution”.  The verdict was hailed by the prohibitionists and the women folk in general, who howe0ver, remain unorganized.

This year, the court again rejected the plea by the liquor vendors to exempt the parts of the highways in the Municipal Corporations, cities and towns, in categorical terms, as seen from the judgment of 31^st March 2017 in Balu II ( 2017 (2) KLT 179). The court while rejecting the request even said:  “It may be attractive to the vendor to sell liquor along the highway but that is not the touchstone of a norm which protects public health and seeks to curb fatalities on the highways of the nation”. The court added that “where a balance has to be drawn between protection of public health and safety and the need to protect road users from the menace of drunken driving on the one hand and the trade of liquor on the other hand, the interest of the latter must be subordinate to the former”.

One may have different perceptions about these judgments of the court.Studies by the World Health Organisation show that the surest way to curtail liquor consumption is to reduce its availability (Global strategy to reduce the harmful use of alcohol,2010).  So viewed, the judgments were people friendly, though not populist. Those were well intended,though slightly illiberal. Unless modified by a larger bench in future, or recalled in review jurisdiction, these judgments in their entirety, had to remain as the law of the land, as mandated by Article 141 of the Constitution.

 Strangely, in a subsequent case,Arrive Safe Society of Chandigarh v. Union Territory of Chandigarh (2017 (3) KLT 923 (SC), (SLP No.10243 of 2017 Order dated 11 July  2017) which came from the Punjab and Haryana High Courts, the Supreme Court  has substantially overruled both the judgments in Balu, by saying that the order of 15^th December 2016 “does not prohibit licensed establishments within Municipal areas” from selling liquor and “this clarification shall govern other municipal areas (in the country) as well”. (See paragraph 7 of the judgment). Arrive Safe Society also was a party in the earlier lis. Thus the prayer that was pointedly considered and repeatedly repelled by the court earlier, stands allowed in a subsequent case where the question of exemption of Municipal or city areas in the whole country was not even a matter in issue. This indulgence shown in paragraph 7 of the Arrive Safe verdict is also antithetical to the preceding paragraph in the very same judgment that reiterated the earlier ratio.

In the case from Chandigarh, all that the Supreme Court could have done was to dismiss that appeal.  Since the appeal was against the verdict of the Punjab and Haryana High Court that validated a notification of the Chandigrarh Administration de-notifying certain stretches of state highways in the Union Territory, a general direction for the whole country was not even called for.  The court in the Chandigarh case also said that the earlier judgments “do not prevent the administration from reclassifying intersectoral roads within the city from State highways to major district roads”.

 The Apex Court has abruptly withdrawn the substantial part of the earlier decisions, that too without offering any valid reason and without hearing all the stake holders including the other petitioners in the earlier case. The process lacked deliberations and procedural discipline.It does not set a healthy judicial precedent. A Court contradicting itself gives unpleasant signals for our democracy.

Weird Words in Judgments

(By R.P. Remesan, Advocate, Kannur)

Legal English, legal language, legal writing and legal literacy are the words which come across while dealing with the art of legal drafting. Legal English refers to the type of English as used in legal writing. It differs from ordinary language in vocabulary, morphology, syntax, and semantics, as well as other linguistic features. A specialized use of certain terms and linguistic patterns governs the teaching of legal language. Legal writing includes the ability to identify accurately the varieties of statements that a court makes in the course of judicial opinion. The term legalese is a pejorative term associated with traditional style of legal writing.

Legal drafting mainly refers preparation of plaint, petitions etc. It includes writing of judgments also. The notable difference between the two is that the former ends in the four walls of the courts and the later comes out of it. So the judgements are often referred to the analysis of the art of legal writing. We have to analyse the verdicts threadbare as part of our profession, though it is not criticism for its own sake. Indeed, we have noticed the exquisiteness of judgements. The art of drafting and linguistic expertise of the Judges in writing the judgments should not be derided, scoffed, or disdained.

While reading the judgments of High Courts and Supreme Court we could see the art of drafting and linguistic expertise. Our Judges are very affluent with their vocabularies. They have used phrases, aphorisms, connotations, maxims etc., to justify and substantiate their way of thinking. The use of weird and wonderful words is not a strange phenomenon in our legal parlance. It is interesting to note such constructions in the judgments. I may quote a few:

The word‘adscititious’means ‘forming an addition or supplement; not integral’.This word was once used by our High Court. None of other High Courts had an opportunity to use it. This is the excerpt.

He refers to Ext.P4 in W.P.(C).2791/2014 wherein the Executive Engineer has recorded that by making any change in the approved alignment as ordered in Ext.P6, an additional protection wall will have to be constructed and that theadscititious cost of W.P.(C).No.30524 of 2016, W.P.(C).No.570 of 2014, W.P.(C).No.6404 of 2014 & W.P.(C).No.15406 of 2014 such wall would escalate the total cost to be much higher than what would be required for the originally approved alignment¹.

The meaning of ‘cacoethes’ is ‘an urge to do something inadvisable’.Interestingly
I could see that Madras High Court used the said word in the following context.

I am also proceeding on the assumption that Rule 8-C is valid. I am referring to this aspect because in a number of writ petitions, the validity of Rule C is raised and it has not been settled by this Court whether that rule is valid or not. Learned counsel for the petitioner wanted to proceed in this cacoethes assumption that Rule 8-C is valid and still -wants to assert his right to quarry in his own land² .

‘To tear something up by the roots’is the dictionary meaning of ‘deracinate’. The words like root out, displace, move, stub, uproot, extirpate are the synonyms of the said words. The word deracinate is seldom used in the judgments. High Court of Madras, Delhi, Rajasthan and Supreme Court used the same a few times. The Supreme Court used the word in similar manner:

No award was passed in 1986 (i.e., within two years), or in fact even till 2006, causing grave prejudice to, nay deracinating, the Constitutional rights of the Appellant landowner³. 

In the Kerala High Court decision the said word has been used thus:

It is also an attempt to deracinate a basic feature of our Constitution to have grievances redressed by Courts established in accordance with the Constitution and the laws⁴. 

William Shakespeare used the word in Henry V

Her vine, the merry cheerer of the heart,

Unpruned dies; her hedges even-pleach’d,

Like prisoners wildly overgrown with hair,

Put forth disorder’d twigs; her fallow leas

The darnel, hemlock and rank fumitory

Doth root upon, while that the coulter rusts

That should deracinate such savagery;

The word ‘douceur’ means ‘a financial inducement or bribe’.One may think that the said word abounds in judgments. But it is rarely found in texts. The Calcutta High Court used the same in (1907) ILR 34 Cal.150. In AIR 1955 Ori. 288 Orissa High Court used the word and the same was quoted by the Supreme Court in the judgment reported in
AIR 1957 SC 729. The latest judgment is reported in 1997 Cri.L.J. 2014 Guj, Extract from the judgment is given below:

‘Hasmukhbai (Ex.22) the brother of the deceased has tried to find fault with the respondent recollecting his irksome conducts on different occasions in past as well as subsequent to the incident, but he has not stated all those facts about ill-treatment, harassments, hostility douceur; and doleful life of the deceased⁵.

The meaning of word ‘incrassate’ is ‘thickened in form or consistency’.The said word in the noun form was used only by M.P.High Court so far. The flourishing and unbridled language may attract the readers.

In this Writ Petition it is imperative to bestow our anxious consideration on the long debate and deliberation that took place consuming quite a speck of time relating to contentious issues which took us in the time machine as the subject related to the past, creating defiant walls and artificial palisade and sometimes brought us to the present in captivative fascination having an ineffaceable sense and purpose of modernity and progressiveness which, at times generated a feeling of puzzlement but definitely the incrassation and intenseness of proponements [?] cannot be surveyed with disposition of a disregardant⁶. [?]

The word ‘denouement’ means ‘a resolution of a mystery; the end result’. A few High Courts used the word. Some of them are given hereunder:

Pursuant to this declaration, the Chiefs were stripped of all their governmental functions and the final denouement took place in 1852 when the British took over the collection of revenue for the jagir lands. Supreme Court ⁷.

A decision regarding punishment under disciplinary action is a denouement to an enquiry process and indeed a culmination of the same. High Court of Punjab and Haryana⁸.

A pretty damsel was snared into a trap by her employer and two other men and killed her by filling her mouth with lethal poison. Her corpse was disposed of in a faraway jungle as denouement of the plot. Kerala High court⁹.

‘Ebullience’means ‘bubbling enthusiasm’. This word has been used in a few judgments of the High Courts and Supreme Court. If the details gathered by me are right the Supreme Court used the said word only in one judgment. See the mesmerizing style.

Seven dangerously ideological teenagers, politically impatient with the deepening injustice of the economic order and ebulliently infantile in their terrorist tactics, were sentenced to seven years in prison for the offence of having robbed the State Bank of a few thousand rupees with non-violent use of crude pistols, and country bombs which, ill the language of the Penal Code, amounts to dacoity-a grave property crime¹⁰.

‘Labyrinthine’means ‘any complex or confusing situation or passage’.The word has its origin in the Greek myth of Minotaur. Many of the High Courts and Supreme Court had occasion to use the weird word very often. I may again quote.

A vivid close-up of the sequence and consequence of the dramatic and traumatic events culminating in the reference to arbitration and the impugned award is essential as factual foundation for the decision of the issues. Even so, we must condense, since labyrinthine details are not needed in a third tier judgment. Broad lines with the brush bring out the effect, not minute etches which encumber the picture¹¹.

The specific grounds of invalidation relied on by the Writ Petitioner are many and the long Judgment of the High Court has lavished discussion on these aspects. Counsels have sought to repeat the rival contentions before us. But we do not think that it is necessary to embark upon the labyrinthine details or prolix analyses which have engaged the learned Judges of the High Court¹².

The following is a quote from Shakespeare’s Henry VI where the word is used:

Oh wert thou for my selfe: but Suffolke stay,

Thou mayest not wander in that Labyrinth,

There Minotaurs and vgly Treasons lurke,

Solicite Henry with her wonderous praise.

Bethinke thee on her Vertues that surmount,

Mad naturall Graces that extinguish Art,

Repeate their semblance often on the Seas,

That when thou com’st to kneele at Henries feete,

Thou mayest bereaue him of his wits with wonder.

The word ‘palimpsest’ means ‘a manuscript on which more than one text has been written with the earlier writing incompletely erased and still visible’.The meaning of the word may give an impression that it is a word frequently used in the judgements. If my appraisal is correct the said word was once used in the year 1928 by Madras High Court¹³.

The allegation was that a valid sale-deed for A and A-1 schedule properties had been incorporated with the mortgage of B schedule properties, the signature and attestations preserved and part of the rest treated as a palimpsest, i.e., the original writing obliterated and a fresh writing superimposed thereon.

‘Serendipity’means ‘The faculty of making fortunate discoveries by accident’.
I have noted only limited instances. In W.P.(C).No.13596 of 2017 our High Court used the word as follows.

Grant of bounty is likely to allow such institutions to develop an attitude of serendipity. Such a culture is inconceivable¹⁴.

The same sentences are found in the judgment of Supreme Court also.¹⁵ Chronologically the Kerala Judgment comes first.

The word ‘vulpine’ is derived from Latin word ‘vulpes’ which means fox. Its meaning is ‘crafty and cunning’. I could notice only one instance where the said word has been used.

It is a statute for the protection of the flat purchaser and to ensure that he is not, for want of financial muscle in a given case, or because his is the one raised voice in an otherwise deafening silence, the victim of a developer’s incessant vulpine machinations that materially damage the quality of his and his family’s life and the sanctity of his home. A man’s home is his castle¹⁶.

These are only a few instances among even more freakish and odd words and phrases, lurking in the deep sea. Further investigation is necessary to bring forth gems in order to satisfy our academic interest

Foot Note:

1.     SNDP Yogam v. State dated, 3.10.16.

2.     Hind Stone v. Union Of India (AIR 1981 Mad.82).

3.     M/S.Soorajmull Nagarmull v. State of Bihar(2015 (3) KLT Suppl.103 (SC) = AIR 2015 SC 3400.

4.     George Koshy v. State of Kerala(2002 (3) KLT 503).

5.     1997 Cri.L.J. 2014 Guj.

6.     Maharshi Mahesh Yogi v. State(AIR 2002 M.P. 196).

7.     Amarjit Singh v. State(AIR 1962 SC 1305).

8.     Kanwal Singh v. State(2010 Lab IC 2245).

9.     Sathyaseelan v. State(1991 CrlLJ 2941).

10.  Lingala Vijayakumar v. Public Prosecutor(AIR 1978 SC 1485).

11.  Gujarat Steel Tubes Ltd v. Union(AIR 1980 SC 1896).

12.  State of M.P. v. Ram Ragubir Prasad(AIR 1979 SC 888).

13.  Cherukuri Venkataratnam v. Bolla Guravayya AIR 1930 Mad.84.

14.  W.P.(C).No.13596 of 2017 (Y) dt. 22/6/2017.

15.  Dental Council of India v. Dr.Hedgewar Smruti Raga Seva Mandal(2017 (2) KLT SN 45 (C.No.62) SC = 2017 (3) CTC 214.

16.  Eterna Co-operative Society Ltd v. Lakeview Developers AIR 2015(2) Bom.314.

17.  Note: Data used in this article are collected from the data base of The Laws, and Legal Eagle software.

Are Fundamental Rights Really Part of the Basic Structure of the Constitution ? --

New Insights Gleaned from the Book
‘The Kesavananda Bharati Case’ by T.R. Andhyarujina

(By Srinath Girish, Advocate, Calicut)

When I saw this book for the first time, I had a vague memory of having read about this case long ago in the Constitutional Law text at Law College. Something to do with how the Supreme Court, by a majority decision, held that Parliament cannot amend the Constitution in such a manner as to alter its basic structure.

There were several other cases in that text in the same chapter - Golak Nath, Minerva Mills.The gist of all such cases to be memorised, reproduced on the answer sheet for the examination and promptly shelved in the recesses of memory, in all probability never to be recalled again.

I am sure the situation is similar with all other lawyers who concentrated on civil, criminal and other run-of-the-mill matters after graduation and never appeared in a Constitutional matter in their careers.

Years later, having convinced myself that I had surely acquired a bit more legal acumen than in the Law College years, I picked up this book by Senior Counsel T.R. Andhyarujina, who passed away recently. Frankly, it was the book description that made me curious about it. It says that the book is ‘The Untold Story of Struggle for Supremacy by Supreme Court and Parliament’.

So I read it - and gained a totally different insight into the working of our democratic institutions, the equations between and within the Bench and the Bar and the process by which a nation’s future can be shaped by the decision in a single momentous case.

The author appeared along with the legendary H.M.Seervai on the side of the Government and thus had a ringside view of events. In the very beginning of the book, he regrets the fact that ‘India’s greatest Constitutional case was regrettably heard and decided in a manner most unconducive to a detached judicial decision’.

All throughout, the case was marred by political overtones. The balance of power between the pillars of democracy was threatened, with the Government playing all its aces to obtain a favourable verdict granting it absolute power to amend the Constitution, the primary target being the Fundamental Rights guaranteed by it. In the Golak Nath case, wherein the Supreme Court had held by the narrowest of majorities (6 to 5) that Paliament has no power to amend the Constitution in any way affecting Fundamental Rights, the Government had lost. Now it was banking on the Kesavananda Bharati case, to be heard by a 13 Member Bench, principally to consider the correctness of the decision in Golak Nath.

His Holiness Kesavananda Bharati Sripadagaveru was only a name lender. In the proceedings, he did nothing else but lend his name, by virtue of the petition he filed challenging the placing of the Kerala Land Reforms Act and the amendments thereto in the 9th Schedule of the Constitution.

The Congress party had obtained a massive majority in Parliament and was confident of the electorate’s backing to restore the supremacy of Parliament’s power to amend the Constitution in any manner it pleased. The Bench was headed by Chief Justice Sikri, known to be antagonistic to the Government’s stand. Nani Palkhivala, the versatile genius, spearheaded the challenge against the Government.

What better setting for a mega judicial thriller?

One has read in novels of the Perry Mason and the John Grisham variety, of lawyers trying to pack the jury with members who they feel would serve their clients’ cause. From this book, it appears that there was a deliberate attempt by the Government to pack the Bench with Judges who were likely to favour it.

There were tensions inter sethe Learned Judges on the Bench, ego clashes between the Attorney General Niran De and H.M.Seervai, both appearing for the Government and between Palkhivala and his opponents. Several sparring bouts ensued between the Bench and the Bar, to the extent that even a walkout by counsel was threatened. The Chief Justice was due to retire and wanted a judgment before he did. A Judge fell ill thrice during the proceedings, in the midst of speculation as to whether such illness was feigned or not, delaying the decision further. The hearing consumed 67 days, Palkhivala grumbling that he was given only 31 days for his submissions while the other side got 34.

On the 24th of April, 1973, a day prior to the Chief Justice’s retirement, eleven separatejudgments were read out in Court. 6 Judges held that the amending power was limited by inherent and implied limitation in the Constitution including Fundamental rights, while 6 others held that there were no limitations on the power of Parliament to amend the Constitution. The Judgment that clinched the verdict against the Government was that of Justice H.R.Khanna.

But as the author points out, the reasons stated by Justice Khanna differed completely from those stated by the 6 Judges who held against the Government. While the others held that the Fundamental Rights were inviolable, Justice Khanna relied more on the interpretation of the word ‘amendment’ and opined that amendment of the Constitution cannot have the effect of destroying or abrogating its basic structure or framework. The author points out that at no point did Justice Khanna uphold the inviolable nature of Fundamental Rights, in fact he rejected such a theory.

So could it be really said that the acclaimed View of the Majority actually represented the view of the majority of the judges in the case? The View of the Majority was in fact only a summarisation of the judgements on a paper prepared and produced by the Chief Justice on the day of judgment and passed along for the signatures of the other Judges. What is more, it was signed by only 9 of them. Four Judges merely passed on the paper to their neighbouring colleague without signing it. However, all Judges signed the Common Order of the Court remitting the cases to the Constitution Bench. There was no discussion by the Judges as to what the real view of the majority was.

The author emphatically states that the reports of AIR and SCC about the case are wrong and mixed up. No ratio of the Kesavananda Bharaticase can be derived from the so-called ‘View of the Majority’. The dictum that ‘Parliament cannot amend the basic structure or framework of the Constitution’ was the conclusion of only a single Judge and not that of a majority of them. In the words of Palkhivala “Thus by a strange quirk of fate, the judgement of Justice Khanna with whom none of the other Judges agreed has become the law of the land.”

For a case known widely as the ‘Fundamental Rights Case’, it is amazing that there is no conclusive finding that Fundamental Rights are to be considered a part of the basic structure of the Constitution. It took a ‘clarification’ by Justice H.R. Khanna two and a half years later in the Indira Gandhi case to actually bring them under the said purview.

The remainder of the book narrates the aftermath of the Judgment, the supersession by the Government of Senior Judges to pave the way for Justice A.N. Ray as the Chief Justice (which later resulted in the Supreme Court taking over the power of appointment of Judges in the Supreme Court Advocates-on-Record Associationcase, an attempt to review the Kesavananda Bharati judgement (which ended in an abrupt dissolution of the Bench by Chief Justice Ray without any apparent reason), further attempts by the Government to overcome the judgment, which were thwarted by the Judgment in the Minerva Millscase, how the judgment was perceived in other countries and so on.

The opinion of the author is that following the further interpretations of the Basic Structure of the Constitution by the Supreme Court, in the end, there was no clear victory either for the Supreme Court, the Parliament or the Government. Each side triumphed in its own way.

So this is the true story of the case which generations of law students have studied as part of their curriculum and never really analysed. We have always taken it as a given fact that Fundamental Rights are inviolable (except for the one with respect to Property). Reading this book made me understand how narrowly the hallowed Fundamental Rights, that we revere and swear by, almost became irrelevant in this wonderful Nation of ours.

A must-read for anyone who is interested in how Democracy works.

SIR, Slave I Remain

(By V.M.Balakrishnan Nambisan, Advocate, Taliparamba)

We got Independence in 1947.

But, still Slave I Remain ! SIR.

Indian Evidence Act, 1872 : nearing one-and-half century : and still slave I remain, ceaselessly.

Now, let us examine some of the provisions in the Evidence Act.

1. Section 37........................any statement of it made in a recital contained in any Act of Parliament of the United Kingdom........................or notification by the Crown Representative...............purporting to be the London Gazette or the Government Gazette of any Dominion colony or possession of His Majesty is a relevant fact.

2.SECTION 57(2) :

All public Acts passed or hereafter to be passed by Parliament of the United Kingdom and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed.

3.SECTION 57(4):

The course of proceedings of Parliament of the United Kingdom...........

4. SECTION 57(5):

The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland.

5. SECTION 57(6) :

All seals of which English Courts take judicial notice............and all Courts out of India established by the authority of the ………..Crown Representative .............. and all seals which any person is authorized to use by the ………… United Kingdom................

6.SECTION 78(1) :-

 Acts, Orders or Notification...............of the Crown Representative..................

(3) Proclamation, Orders or regulations issued by Her Majesty or by the Privy Council or by any Department of Her Majesty’s Government

by copies or extracts contained in the London Gazette or purporting to be the Queen’s Printer.

7.SECTION   81 ;-

The court shall presume the genuineness of every document purporting to be the London Gazette………… of any colony, dependency or possession of the British Crown or to be a newspaper or journal or to be a copy of Private Act of Parliament of the United Kingdom printed by the Queen’s Printer.........

8. SECTION 82:--

When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland.............

SIR, Slave, I Remain, uninterruptedly !

Oh, Slavery, thy name is...................INDIA ?