Triple Talaq - Constitutional and Personal Law Questions

(By V.K. Babu Prakash,Secretary, Kerala Legislative Assembly)

“Personal law so called is law by virtue of the sanction of the sovereign behind it, and is for the very reason, enforceable through Court. Not Manu or Muhammed, but the monarch for the time makes ‘Personal Law’ enforceable”.

                                                   --V.R. Krishna Iyerin Assan Rawther v. Ammu Umma

Shayara Bano, a muslim woman approached the Supreme Court challenging the practice of Triple Talaq, Polygamy and Nikkah Halala raising it as unconstitutional practices under the cloak of Muslim Personal Law. She has also raised a valid point that, can the Secular State be held accountable for violations caused by the operation of religious personal law? The Constitutional Bench headed by the Chief Justice of India is considering the constitutional validity of Triple Talaq as a mode of divorce among muslims along with the legality of the practice of polygamy. The following questions are formulated by the court for detailed hearing:-

1. Whether triple talaq and polygamy are protected under the fundamental right to religion guaranteed under Article 25 of the Constitution?

2. Whether right to religion is subject to important fundamental rights like right to equality under Article 19 and right to life under Article 21?

3. Whether personal law can be termed as a law under Article 13 of the Constitution?

4. Whether triple talaq and poligamy are compatable with India’s obligation under international treaties and conventions to which it is a signatory?

Talaq-i-Bid’ah or triple talaq

Talaq-i-Bid’ah means innovated or sinful form of divorce according to Quran. It is defined as a form of divorce which is pronounced thrice in one sitting when the wife is in the State of purity (tuhr). If the husband says ‘I divorce you, I divorce you, I divorce you’, the Hanafis believe that divorce is effected. Although this kind of divorce is sinful according to Quranic tenet, neverthless, it is valid and divorce will take place. When triple talaq is pronounced, the wife will become totally alienated from the husband and he cannot remarry her. She becomes ‘haram’ (totally prohibited) for him. Neither can he take her back or can he go for fresh ‘nikah’ with her. He can go for ‘nikah-halala’ with her only after she marries another person and that person divorces her on account of marital conflict or she becomes a widow. It has to be emphasised that the practice of the Muslim Personal Law does not exist outside the sphere of State regulation at present. Legally speaking, the practice of triple talaq already stood invalidated by the verdict of the Supreme Court in Shamim Ara v. State of U.P. in 2002. The Apex Court held in the verdict that, unilateral talaq by husband is valid only when it is pronounced for a reasonable cause and is preceded by efforts at reconcilliation. Similarly, on Polygamy, various judicial verdicts hold that a Muslim male may be allowed to marry four times only if he is able to maintain all four wives equitably. In Khurshid Ahamed Khan’s case Supreme Court further held that, this practice of polygamy shall be prohibited among male Central Government Employees as the Central Civil Service (Conduct) Rules prohibit polygamy.

The tall question points its finger to the above issues is whether personal laws are truly ‘laws’ that can be examined through the looking glass of constitutional ideas of equality, non-discrimination and personal dignity. Way back in 1951 the Bombay High Court in State of Bombay v. Narasu Appamali held that personal laws could not be invalidated by Courts even if they are found to be oppossed to fundamental rights, as personal laws are not ‘laws’ in force as defined by Article 13 of the Constitution. This judgment was upheld by the Supreme Court in 1980 in Sri Krishna Singh v. Mathura Ahr case. But there are contrary views, by various other High Courts differing with the above stated view. The All India Muslim Personal Law Board which is a party in the Shayara Bano case supports the Bombay High Court’s view, contending that the Supreme Court does not have authority to entertain a constitutional challenge to Muslim Personal Law.

When one looks at the evolutionary process of Hindu and Muslim laws in India, one can easily find that both Hindu and Muhammeden laws were creations of the colonial rule following a complex process of nationalisation, rather than a simple codification of religions commands. The colonial British State cleverly operated through religious law, shedding the ritual significance of that law into the domain of social life while absorbing its governing functions into the State. In the case of Hindu Law, each time a change is introduced, the reformers relied on the State’s law making authority, precisely because, no support for the innovation could be found in the religious scriptures. The Hindu Women’s Right to Property Act 1937 is one of such reformative enactments, that allowed a widow to inherit the deceased husband’s property, which can be looked at in a similar back drop. The actual motive in the case of reforms to Muslim Laws were more political than economic or social. The Muslim Personal Law (Shariat) Application Act, 1937 which provided that the ‘Shariat’ and not Customary Law or Anglo Muslim Law should be applicable to the Muslim Community in India, is really backed by the Muslim elite’s desire to project Indian muslims as a unified religion, community which has a political focus. The 1937 Act made ‘shariat’ to be the law applicable to the Muslim Community, not with respect to every area where a shariat rule existed in the Quran, but only with respect to certian areas of family life specified in the Act like marriage, divorce, inheritance, gift, waqf, women’s property etc. Matters such as inheritance to agricultural property, contracts and debt were left out of the purview of shariat in Muslim Personal Law.

The essential point is that Shariat acquired exclusive jurisdiction over certain matters as Muslim Personal Law because the State declared it to be so, and that the choice of these matters and the final shape of the 1937 Act were determined by socio political rather than religious considerations. Take another example, which is the resolution of Muslim Marriage Act 1939, which provides grounds by which a Muslim wife could seek divorce. This Act modified the rule of divorce for Muslim women (not men) and provided that a woman who had been married before the age of 15 could repudiate the marriage upon attaining puberty, if she did it before turning 18 and if the marriage had not been consummated. Thus, today, when a muslim woman exercises the option at puberty to repudiate her child marriage, the source of her right is not religion, but the State. To put it pithly, historically, Hindu and Muslim Personal Laws have implicated civil authority in different ways and are shaped by secular elements to different degrees. While Muslim Personal Law has a closer relationship to religious scriptures, both Hindu and Muslim Personal Laws in general, emerge out of socio­political considerations like any other law, which rely on the sovereign power of the State to enact a law and enforce it. It is therefore unrealistic to think that the body of laws referred to as Personal Laws derive their validity from religion, rather than the State and its sovereign power.

There is an empty rhetoric from the side of the All India Muslim Personal Law Board resisting for the reformation of the Muslim Personal Law by Shayara Banu, that what Shayara Bano evokes in the case is the liberal national dream of a uniform civil code which cannot be forcefully imposed upon Muslim minorities. Instead of chasing the grand nationalistic vision of one nation, one law, the focus must be on holding whether personal laws are subject to fundamental rights. If this is made clear, just like muslim women, other women in other religions also could challenge the discriminatory provisions in the personal laws applicable to them. After all India is a diaspora of different culture and social set up living together under a nation, State professing and pursuing different religious practices to find one’s God in many ways.

References:

1.  Assan Rawther v. Ammu Umma (1971 KLT 684).

2.  Khursheed Ahamad Khan v. State of U.P. (2015 (1) KLT SN 116 (C.No.138) SC =
     AIR 2015 SC 1662).

3.  Krishna Singh v. Mathura Ahir.(1980 SCR (3) 660).

4.  Kunhi Mohammed v. Ayishakutty (2010 (2) KLT 71).

5.  Shamim Ara v. State of U.P. (2002 (3) KLT 537 (SC) = (2002) 7 SCC 518).

6.  State of Bombay v. Narasu Appamali (AIR 1952 Bom.84).

Kerala Advocates Welfare Fund Amendment Bill 2016 is Unique

(By Parippally R. Raveendran, State Vice President AILU, Kerala Unit,
Former Member, Bar Council of India)

Worlds most strongest and unique Constitution which was drafted by Dr.Ambedkar, Pandit Jawahar Lal Nehru, Dr.Rajendra Prasad, C.Rajagopalachari and the father of our nation Mahatma Gandhi who arose from the zeal of the struggle for independence constituting the great generation of legal fraternity has now become the worlds second largest lawyers community after the United States of America with membership of more than 20 lakhs. Advocacy has now became popular in India as it was once considered as a profession of higher class people alone.

A study which was conducted in Chennai by Dr.N.R.Madhava Menon, a renowned and popular academic pandit as well as jurist, revealed that the average income of 80% of Advocates are just `1500/-. Even when the income earned by an advocate is far below the prestige of his own, 5% of the advocates were in the list of multi millioners. Only 15% of the advocates are getting an eye-catching income.

The legacy of the Kerala Legislature hailing from reforms/public health and social security measures has now put a golden feather in the head of Kerala model by passing the Advocates Welfare Fund Amendment Bill 2016. The political will showed by the LDF Government in amending the basic statute which is a model to all over India has now enhanced the existing welfare amount from `5,00,000/- to `10,00,000/- and that gives so much confidence to advocates who are working as officers of the court and it caused new hope and aspirations even among others practicing in other States. The latest amendment had made onlya nominal increase in the annual contribution of the Advocates Welfare Fund. As per the standing of the bar, from junior advocates to designated senior advocates are remitting an amount ranging from `500/- to `6000/- per annum, corresponding to this contribution they are getting `25,000/- from the welfare fund for every completed year of practice. An approximate amount of `1.75 crores which is got by way of stamp fees in filing vakkalath and an amount to the tune `2 lakhs, being the 20% of the amount got from the newly enrolled advocates enrollment fees will form part of the corpus of the Fund. Welfare stamp fees has now been enhanced to the tune of `50/- in High Court and `25/- in subordinate courts.

The amendment made in Section 76 of the Kerala Court Fees and Suit Valuation Act by the UDF Government through the Finance Bill of 2016 is one of the notable amendments after the passing of Parent Act in 1980. As per the notification issued on 07.04.2016, enabling to charge an additional court fees of 1% had lapsed. But as per the will of the LDF Government, the Hon’ble Chief Minister Sri.Pinarai Vijayan and Hon’ble Finance Minister Dr.Thomas Issac joined together and decided to issue further notification to incorporate 1% additional court fees. As a result of this, an amount of `45 crore per annum will come into the income source of the Advocates Welfare Fund.

This 1% additional court fee is charged from every original suit, appeal, filed in civil courts and revisions. Where in cases fixed court fees had been prescribed, this additional court fee is fixed to an amount of `100 and in Family Courts, court fees will be charged as per this. Additional court fees is levied in accordance to Section 4 A of the Kerala Court Fees and Suit Valuation Act and as per Rule 397(2) of the Kerala Motor Vehicles Rules. The historic amendment that is made in Section 76(3) of the Kerala Court Fees and Suit Valuation Act, 70% of the amount in the Legal Benefit Fund will come to the Advocate’s Welfare Fund and 30% of the amount to the Advocates Clerks Welfare Fund. 10% of the amount that both sides are getting will be reserved to the welfare of the clients as well as for the development of the basic amenities of the courts. The inflow of `45 crores will be directed to the corpus of Kerala Advocates Welfare Fund. With this notable amendment which will in turn strengthen the economic base of the welfare fund.

When there is Judicial Adademy in Bhopal intended for training to the judges and training directorate in States to update their legal knowledge, it is remarkable to note that for updating the standards of legal knowledge of lawyers, Lawyers Academy was formed in Kochi under the leadership of Kerala Bar Council and Senior Advocate K.K.Venugopal and it is getting financial aid through this amendment. There are provisions in this amendment for providing stipend to thousands of Junior Advocates in their initial years of practice. Junior Advocates within 3 years from enrollment and those whose annual income is less than one lakh are eligible to stipend. The amount of stipend is fixed after consultation by Kerala Advocate Welfare Trust Committee and the Government. Around 6000 Junior Advocates will get the benefit of this which is highly overwhelming for them to sustain in the profession on their early days in the profession.

Kerala had become a role model to the other States of India by enhancing the treatment assistance amount from existing `5000/- to `1,00,000/-. Another amendment provided a chance to those advocates who had not yet become a member of the Welfare Fund. Advocates who are having active practice and had not yet joined the Welfare Fund can now join as per Section 15(1)E of the Welfare Fund Act by giving application in the prescribed form and by paying a fine of `2000/- per year by calculating the amount to be payable for a fixed interval with 10 year retrospective effect. The benefit of this welfare fund can only be withdrawn only after the completion of 10 years of practice. The amendment will be an inspiration to those who had not yet joined in the welfare fund which was built under share of their income.

This Welfare Fund Scheme excludes those who are engaged in other jobs and are not actively practicing in courts or is engaged in business. The certification from the concerned Bar Association as well as the Court as to the filing of minimum 5 vakkalaths in a year by the Advocate is essential to continue in the Welfare Fund Scheme and that shows the transparency of the Welfare Fund Scheme.

Rights of Persons with Disabilities Bill, 2016:
A Progressive Legislation for the Disabled

(By Jayakrishnan P.K, Advocate, High Court of Kerala)

Introduction

Disabled are the most disadvantaged sections in the society. Disabled or differently abled persons are always viewed or treated as objects of charity rather than subjects entitled for legal rights. One of the important problems faced by the disabled is accessibility as they do not have access to public utilities. This has resulted in exclusion of the disabled.

The UN Convention for Disabled Persons, 2007, addressed disability as an evolving concept under law. Indeed, Indian law recognized only limited form of disabilities. In the present scenario, a number of emerging issues of disabilities like disability due to chronic heart diseases, acquired disability due to natural calamities etc., where recognized in international legal parlance. All these kinds of disabilities are outside the purview of existing law of disability in India. Recently, the Rajya Sabha passed the Disabilities Bill, 2016 which will replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. One of the main objectives of this Bill is to bring compatibility of the existing disability law with that of the United Nations Convention for Disabled Persons, 2007. At the outset, this paper is an attempt to analyse the important features of the Rights of Persons with Disabilities Bill, 2016.¹

Disability: The Indian Legislative Framework

Disability being a comprehensive issue which cannot be addressed through a single legislation and due to this dilemma disability has been addressed through four different legislations. At present there are four important legislations dealing with various issues of the disabled persons in India. They are the Mental Health Act, 1987, Rehabilitation Council of India Act, 1992, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation Act, 1999. All these legislations are purpose oriented rather than addressing the entire gamut of the legal issues pertaining to the disabled.

The living conditions² of the mental asylums in India are pathetic due to the involuntary admissions of patients and also due to the old and primitive ways of treatment inhibited in these mental asylums. In order to address this issue, the Mental Health Act was enacted in 1987 with the objective to regulate the standards of the mental health institutions in India. This civil rights legislation provides for punishment³ for cruelty towards the disabled persons. It also stipulated the need for acquiring valid consent of the guardian before subjecting disabled persons to research for scientific purposes. The Act provides the need for respect for the privacy of the communications⁴ of the persons with mental illness to the medical practitioners.

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995 defines⁵ ‘disability’ and covers seven forms of disability: which includes blindness, low vision, hearing impairment, loco motor disability, mental retardation, mental illness and leprosy. The Act also provides for the establishment of quasi-judicial bodies for implementation of the Act. It provides for the appointment of Chief Commissioner at Central level and Commissioners at State level to redress individual complaints and act as civil courts. In addition to this, the Act stipulates for the establishment of the Central Co-ordination Committee and State Co-ordination Committee in which Ministers, Members of Parliament, women with disability are members.

The Rehabilitation Council of India Act, 1992 was enacted with the objective for the Establishment for Rehabilitation Council of India (RCI) in order to standardize the training courses for professionals dealing with persons with disabilities and to regulate these standards in all training institutions uniformly throughout the country. The Rehabilitation Council of India (RCI) is empowered to promote research in the field of rehabilitation⁶ and special education and to maintain Central Rehabilitation Register for registration of professionals/personnel. The Act was criticized by many on the ground that it provides for compulsory registration of professionals by making it as a mandatory requirement for all professional to register with RCI or else to meet with or punitive action⁷ by RCI. Resultantly, even persons with inadequate educational qualifications can be registered with RCI like persons even with 3 months certificate course after 10^th standard can register as a rehabilitation professional under the Act. This has considerably reduced the standard of education imparted through the rehabilitation centers. Also many have raised the criticism that RCI is duplicating services wherein NCTE, AICTE could do the same work in a better manner.

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 was enacted with the main objectives to empower disabled persons to live independently in the society/community. To achieve this purpose a National Trust was established to promote the care and protection to disabled in case of death of their parents and to support the family and the registered organizations of the disabled during crisis. The Act created Local Level Committee to deal with the applications of legal guardianship of disabled and the guardians so appointed has to furnish periodic return to Local Level Committee (LLC). The National Trust was established through a democratic process by the registered organizations with the support of the parents of disabled.

Rights of the Disabled: Role of the Judiciary

The judicial interpretations on the rights of disabled were confined to four areas mainly, interpreting the constitutional remedies for disability, interpretations of the provisions of the Persons with Disabilities Act, 1995, Right for Employment Opportunities of the disabled persons and the right to education of the disabled.

In the National Federation of Blind v. Union Public Service Commission,⁸ the Apex Court directed the UPSC to allow ‘blind person’ to compete in IAS exam in ‘Braile’ script. In this case by allowing the petition the court acceded to the petitioners request to write the examination in braille script which was earlier withdrawn as it would not be possible to distinguish the script of one person from that of another. In the similar vein, the Orissa High Court in Ramchandra Tandi v. State⁹ordered the State of Orissa to provide financial support to a school for deaf and dumb on the ground of financial austerity. In this case, the State of Orissa refused to grant recognition and financial assistance to a school for the deaf and dumb in order to avoid unnecessary financial burden.

The Javed Abidi v. Union of lndia¹⁰ is the landmark decision in the area of disability rights. In this case, the Supreme Court directed Indian Airlines to provide concessions for passengers suffering from locomotor disability; as a result of this ambulifts were acquired for all major airports. The Court held that the true spirit and object of the Act is to create a barrier-free environment for disabled. Section 26 of the Disabilities Act, 1995 mandates the Government to provide conducive educational environment to disabled children as normal schools deny admissions to children due to the lack of infrastructure facilities. In Binita Senapati v. Assam¹¹ held that the action of the Government is not unconstitutional in not providing reservation for disabled. The court ruled that the concept titled “Education”¹² nowhere provides for reservation of seats for candidates in educational institutions including institutions of scientific, technical and super technical areas, and that extending the benefit of the Act for the purpose ofadmission to medical college may not be in conformity with the intention of the legislature. Over a period of time, a number of international standards¹³ and steps were established internationally in order to protect the rights of the disabled. It has become the duty of the State to protect the human rights of persons with disabilities through general as well as specific laws and to implement the policies and programmes for their welfare.

In Dr.Jagadish Saran v. Union of India¹⁴Justice Krishna Iyer observed that ‘even apart from Article 15(3) and (4) equality is not degraded where special provisions are geared to the larger goal of the disabled getting over their disablement consistent with the general good and individual merit’. In Indira Sawhney v. Union of India¹⁵Apex Court examined the legality of reservations of disabled who are not explicitly covered under Art.16 and observed that “to enable all to compete with each other on equal plane, it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged’. In Narendra Kumar Chandla v. State of Haryana¹⁶the Apex Court removed the injustice and protected the livelihood of the disabled where on acquiring disability an employee was de-promoted as a clerk. The court ordered that his salary be retained at the higher level which he was drawing earlier.

Rights of Persons with Disabilities Bill, 2016: Expanding the Horizons

India ratified the Convention on the Rights of Persons with Disabilities (CRPD), 2006 on 1 October 2007. The Convention¹⁷ sets out the legal obligations on States to promote and protect the rights of persons with disabilities. Convention does not create new rights but builds upon, and works in synergy with previous international instruments¹⁸ related to persons with disabilities.

One of the main objectives of the new Disabilities Bill is to include more number of disabilities within the purview of the Act. The Disabilities Act, 1995 identified only seven disabilities whereas the new Bill recognises 21 types of disabilities by providing more coverage to this beneficial legislation. Disability due to acid attacks and Parkinson’s disease were also recognised under the new Bill and persons with atleast forty per cent of disability are eligible for reservation in education and employment, and are entitled for preferences in government schemes.

The Bill expanded the scope and ambit of disability law in India. Basic fundamental rights like right to birth¹⁹ and health, right to education²⁰ for integration of disabled persons, rights for employment opportunities of the disabled²¹ are still gray areas. With regard to the right to avail various facilities the legislation is silent. This Bill gives several rights to persons with disabilities, such as access to public spaces that were previously inaccessible. There is also a clause that places of employment cannot discriminate against persons with disabilities. Another significant development made in the disability law is that the Bill provides for that violation of any provision is punishable with imprisonment up to six months, and/or fine.

Foot Note:

1. The Rights of Persons with Disabilities Bill, 2016 was introduced in the Rajya Sabha by Shri. Malikarjuna Kharge and it was passed on 14 December 2016.

2. Report of the National Human Rights Commission, 1992.

3.Id, Section 81 of the Act.

4.Id, Section 94 of the Act.

5.Id, Section 2 of the Act.

6.Social Conditions causes’ disabilities are: Poverty, Malnutrition, Wars, Crime and the Economic Programmes and the effect of Structural Adjustment Programme.

7.   Id. Section 13 (3) of the Act.

8. 1993 SCALE (2)181.

9. AIR 1994 Ori 228.

10. (1999) I SCC 467.

11. 2000 AIR Gau. I.

12. Chapter V of the 1955 Act.

13. These international legal instruments includes; The UN Declaration on the Rights of Mentally Retarded Persons; The UN Declaration on the Rights of Disabled Persons; General Comment No.5 to the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1994;Decade of Disabled Persons, 1983-92;Asia Pacific Decade of Disabled Persons, 1993-2002, and Asia Pacific Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region, 1992.

14. (1980) 2 SCC 768.

15. AIR 1993 SC 477.

16. 1994 (2) KLT SN 6 (C.No.8) SC = (1994) 4 SCC 460.

17. In 2007 the Convention on Rights of Persons with Disabilities was passed which came into force in 2008.

18. Standard Rules on the Equalization of Opportunities for Persons with Disabilities - 1994, World Programme of Action on Disabled Persons - 1982.

19. Disabilities Act, 1995 mandates the State to take measures to detect and prevent disabilities within the economic capacity of the State.

20.Disabilities Act, 1995 - Act provides reservation and special facilities to disabled children. But lacks reservation in higher education.

21. Employment reservations are confined to limited number of disabilities.

Justice K.K. Mathew - “The Cardozo Of India”

Judge, High Court of Kerala: 05-06-1962 to 03-10-1971

Judge, Supreme Court of India: 04-10-1971 to 02-01-1976

(By Fali S. Nariman, Sr. Advocate, Supreme Court of India)

A collection of addresses and essays by Justice K.K. Mathew along with excerpts from his judicial opinions (published in 1978 under the title “Democracy, Equality and Freedom”) became the first work of its kind in Indian legal literature. Regrettably, it was also the last! The hope expressed by its Editor, Prof. Upendra Baxi, that it would be the pre cursor of similar literary ventures in the future remained unfulfilled.

In a practical sense, the book “Democracy, Equality and Freedom” published by the Eastern Book Company - with a foreword by Justice Y.V. Chandrachud Chief Justice of India - is why Justice K.K. Mathew is still remembered, 40 years after he stopped sitting in India’s Supreme Court. But for the illuminating and exhaustive 86-page Introduction expounding the judicial creativity and craftsmanship of the Judge, K.K. Mathew, would have been just one Judge, out of a roll-call of 186 Judges who had sat in India’s Supreme Court! Baxi has been moved to say that Justice Mathew’s minority opinion in Keshavananda Bharati (one out of several in a Bench decision of 13 Judges) “ensures him the fame of being the Cardozo of India”!^* The reason for Baxi’s spontaneous remark is Justice Mathew’s masterly use of contemporary jurisprudential thinking when attempting to resolve the “fundamental puzzle” of India’s Constitution. His opinion in Keshavananda Bharati is a mini-treatise on the use of jurisprudence in judicial law making! Justice Mathew approached the question of amendment of the Constitution as a constitutionalist, expounding a written document of governance. He refused to accept that the makers of the Constitution ever intended that Fundamental Rights should be subservient to Directive Principles of State Policy; rather (he said) they visualised a society where rights in Part-Ill and aspirations in Part-IV would co-exist in harmony -

“A succeeding generation might view the relative importance of the fundamental rights and directive principles in a different light or from a different perspective. The value judgment of the succeeding generations as regards the relative weight and importance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is no answer to say that the relative priority value of the directive principles over fundamental rights was not apprehended or even if apprehended was not given effect to when the Constitution was framed or to insist that what the directive principles meant to the vision of that day it must mean to the vision of our time.”

Justice Mathew concluded that the only limitation to the amending power in the Constitution was that the Constitution could not be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the State was constituted and organised -

“that limitation flows from the language of the Article (Article 368) itself. I don’t think there were or are any implied or inherent limitations upon the power of Parliament under the Article.”

But whatever be the contribution of Justice Mathew to the Great Fundamental Rights Case, the more important - the more seminal - decision of his was in the immediately succeeding Case (Indira Gandhi v. Raj Narain: 1975 Suppl.SCC 1); his opinion in this case illustrated what a strict self-disciplinarian the Judge was; like other dissentients in Keshvananda Bharati (RayC.J., Beg J., and Chandrachud, J.) Justice Mathew was able to overcome the initial intellectual difficulty of reconciling his reasoning in that case with the impelling need to hold that Article 329A (challenged in Indira Gandhi v. Raj Narain) was constitutionally impermissible. Unlike Chief Justice Ray he did not say (in Indira Gandhi v. Raj Narain) that Keshvananda Bharati did not decide that there were any implied limitations (arising out of the doctrine of basic structure) to the amending power of Parliament. In fact he straightway conceded (as did Justice Y.V.Chandrachud) that there was a seven-Judge majority (in a Bench of 13 Judges) for the proposition that “the power conferred under
Article 368.....was not absolute.” Having done so, in conformity with the basic norm of judicial discipline, he then proceeded to identify democracy as an aspect of the basic structure doctrine! Article 329A as enacted had removed past, present and future operations of the Representation of Peoples Act, 1951, to election disputes affecting the Prime Minister and Speaker, and despite the absence of any applicable law it had (in effect) adjudicated the election dispute between Mr. Raj Narain and Mrs. Indira Gandhi! In so doing the amending body neither “ascertained the facts of the case” nor “applied any norms for determining the validity of the election”, and hence this was (according to Justice Mathew) plainly an exercise of “despotic power” damaging the democratic structure of the Constitution!

One of the delightful excursions noted in the judgments of Justice Mathew are his footnotes - they exhibit a vast and varied reading and learning about men and matters! As for instance where in dealing with the reason why the power to pass Bills of Attainder were taken away from the US Congress, Mathew J. quotes (in Indira Gandhi v. Raj Narain: 1975 Suppl. SCC 1 at page 127) a piece from Macaulay’s History of England - in a footnote. It reads:

“Macaulay’s account of the attainder of Sir John Fenwick in 1696, the last in the history of the House of Commons, is particularly vivid:

“Some hundreds of gentlemen, every one of whom had much more than half made up his mind before the case was open, performed the office both of judge and jury. They were not restrained, as a judge is restrained, by the sense of responsibility........they were not selected, as a jury is selected, in a manner which enables a culprit to exclude his personal and political enemies. The arbiters of the prisoner’s fate came in and went out as they chose. They heard a fragment here and there of what was said against him, and a fragment here and there of what was said in his favour. During the progress of the bill they were exposed to every species of influence. One member might be threatened by the electors of his borough with the loss of his seat.... In the debates arts were practiced and passions excited which are unknown to well constituted tribunals, but from which no great popular assembly divided into parties ever was or ever will be free.” [IX Macaulay: History of England, p. 207 (1900)].”

So also in the same case when dealing with Chief Justice Coke’s objection to the exercise of judicial power by King James the First, Mathew J. says that much of what Lord Coke said could be applied to Parliament when it seeks to exercise power in its constituent capacity, and then recites one of the most illuminating footnotes in judicial history (in Indira Gandhi v. Raj Narain. 1975 Suppl. SCC 1 at page 133):

“On Sunday morning, November 10, 1607, there was a remarkable interview in Whitehall between Sir Edward Coke, Chief Justice of the Common Pleas, and James I. We have only Coke’s account of the interview and not the King’s, but there is no reason to doubt its essential authenticity. The question between them was whether the King, in his own person might take what causes he pleased from the determination of the Judges and determine them himself. This is what Coke says happened: “Then the King said that he thought the law was founded upon reason and that he and others had reason as well as the Judges; to which it was answered by me, that true it was that God had endowed His Majesty with excellent science and great endowments of nature, but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience before that a man can attain to the cognizance of it; and that the law was the golden metwand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said: to which I said that Bracton saith, quod Rex non debet esse sub-homine sed sub Deo et lege.” It would be hard to find a single paragraph in which more of the essence of English constitutional law and history could be found. The King ought not to be under a man, non debet esse sub-homine, but under God and the law, sed sub Deo et lege. (See R.F.V. Heuston: Essays in Constitutional Law, Second Edition, pp., 32-32).”

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Justice Mathew’s concurring judgment in the nine-Judge Bench decision in St. Xavier’s College ((1974) 1 SCC 717)(interpreting Article 30 of the Constitution) is another piece of judicial statesmanship. It stands as an affirmation that some fundamental rights are more basic and more fundamental them others! In St.Xavier’s College, Mathew J. held that only such regulations or standards could validly extend to minority Educational Institutions under Article 30 as were related to the excellence of educational institutions in respect of their educational standards. Subject to this, minority educational institutions had a right to affiliation, and to recognition as an integral part of the constitutional right to maintain and administer educational institutions of their choice. Article 30 was thus a near-absolute right. Justice Mathew’s judgment in the St. Xavier’s College case – which followed Keshvananda Bharati (1973) but preceded his judgment in Indira Gandhi (1975) - contains observations suggesting that the preservation of Article 30 rights is one aspect of democracy - he observes for example that:

“the parental right in education is a very pivotal point of the democratic system, it is the touchstone of difference between democratic education and monolithic system of cultural totalitarianism.”

Article 30 emerges (in Justice Mathew’s view) as an aspect of pluralism - encompassed in the basic structure doctrine. And hence Article 30 cannot be amended on the ground that some moral claims necessitated by Part-IV required this to be done!

In my view however an example of judicial creativity at its best is Justice Mathew’s judgment in Gobind (1975)where he writes for a Bench of three Justices. By dextrous judicial steering of the subject-matter and with mild understatement, the Judge gives the right to privacy (long since held not to be part of the Fundamental Rights Chapter) a gentle judicial push so as to help establish it as a foothold in the same chapter itself! The manner in which he gives the right a new lease of life, side - stepping the ratio of larger benches, is a marvel. Before Gobind theright to privacy had two rounds in the Supreme Court - first before a Bench of eight-Judges (in 1954) - in M.P.Sharma’s case (M.P.Sharma v. Satish Chandra (AIR 1954 SC 300 (8 Judges)) - and ten years later - by majority 4:2 - in a Bench decision of six-Judges in Kharak Singh (Kharak Singh v. State of Uttar Pradesh (AIR 1963 SC 1295 (6 Judges)). In both (or rather in each of them) the right of privacy as a fundamental right had been plainly negatived. Justice Mathew realised that it could not have survived -head-on - a third round! Ruminating that privacy as a fundamental right had been burnt to a cinder - he made bold to assert that “the ashes of lost freedoms are ever smouldering”! In Gobind, by dexterous reasoning, Justice Mathew raised this cherished right “phoenix-like from the ashes^**”. The apprehension (expressed by Prof. Baxi) that the doctrine of precedent may not also rise phoenix-like from the ashes and reduce the right of privacy (once again) to smouldering ashes now stands negatived by the judgment of a three-Judge Bench in Justice K. Puttaswamy (Retd.) v. Union of India where the question as to whether the right of privacy is a part of fundamental rights now stands referred to, and is to be decided afresh by a larger Bench (of seven Judges). In its judgment reported in (2015 (4) KLT SN 10 (C.No.10) SC = (2015) 8 SCC 735): the Court (Bench of three Judges) stated:

9. It is true that Gobind(1975) 2 SCC 148)did not make a clear declaration that there is a right to privacy flowing from any of the fundamental rights guaranteed under Part III of the Constitution of India, but observed that: (SCC p. 157, para 28)

“28. ... Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute.”

10. ‘’However, in the subsequent decisions in R.Rajagopal ((1994) 6 SCC 632)and PUCL ((1997) 1 SCC 301),the Benches were more categorical in asserting the existence of a “right to privacy”. While in R. Rajagopal case held that the “right to privacy, is implicit under Article 21 of the Constitution, the PUCL case held that the “right to privacy” insofar as it pertains to speech is part of fundamental rights under Articles 19(1)(a) and 21 of the Constitution.”

........................................................................................................................

12. “We are of the opinion that the cases on hand raise far-reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma and Kharak Singh are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments - where right to privacy is asserted or referred to Their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.

13. Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma and Kharak Singh is scrutinised and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.

14. We, therefore, direct the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.

15. Having regard to importance of the matter, it is desirable that the matter be heard at the earliest.”

The decision in Gobind (1975)has now given a new lease of life to privacy. In Gobind the earlier larger Bench decision of 8 Judges in Sharma (1954) as well as the later majority Bench decision of 6 Judges (4:2) in Kharak Singh (1964) -were ignored - with a conscious deliberation that could only be tolerated in the hands of a judicial master - craftsmen like Justice K.K. Mathew! The Bench decision of three-Judges in Puttuswamy (2015) has now given a renewed opportunity to a larger Bench of the Supreme Court to rule as to whether the right-to-be-left-alone is or is not an integral part of the Fundamental Rights Chapter! Hopefully this will be decided untrammelled by the views expressed in Sharma (1954) and in Kharak Singh (1964) because, and only because, of the Justice Mathew’s restrained but eloquent exposition of the law in Gobind (1975).

As to how dexterously Justice K.K. Mathew in the Bench decision in Gobind steered clear from the larger Bench decisions in Sharma and Kharak Singh is apparent from a reading of the judgment itself. In Gobind, the petitioner had boldly submitted before the Bench of three Judges hearing the case that the right to privacy itself was a fundamental right, that the right was invaded since Regulation 856 framed under the Police Act of 1951, had provided for domiciliary visits and other incursions into the “privacy” of citizens. The Bench in Gobind (led by Mathew J.) could have taken the easy way out. It could have followed the decisions in Sharma (1954) - a Bench decision of eight-Judges - and the majority decision in Kharak Singh - Bench decision of six-Judges (1964) - 4:2 - and categorically rejected the plea that the right of privacy was a guaranteed fundamental right. It did not do so on the assumption that it is sometimes wise to pay scant regard to the rule of stare decisis - only sometimes! - in order that the law of the constitution should be certain. In Gobind, Justice Mathew traced the origin of the right to privacy in the presumed intention of the framers of the Constitution.

Speaking for the Court, Mathew J. said:

“There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis J. said in his dissent in Olmstead v. United States, the significance of man’s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the government a sphere where he should be let alone!.

Neatly side-stepping the ratio of larger benches, the Court gave the right a new lease of life. The unifying principle underlying the concept of privacy was the assertion (accepted by the Court) that the fundamental nature of the right is implicit in the concept of ordered liberty.

“Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists, ‘Liberty against government’, a phrase coined by Professor Corwin express this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the tight to privacy”.

Fortified by more recent American decisions (Griswold v. Connecticut 14 Law. Ed. 2d 510 - 381 U.S. -179, Roc v. Wade 35 Law. Ed. 2d. 147 = 410 U.S. 113) the Court laid the basis for the doctrine that “zones of privacy” were created by the various guarantees contained in Part III of India’s Constitution. But apprehending problems in this sensitive field, the Court also held that the right to privacy would necessarily have to go through the process of a “case-by-case-development”! Where the Court found that a claimed right was entitled to protection as a fundamental privacy right, a law infringing it had to satisfy the compelling state-interest test. Witness how carefully the proposition is phrased:

“ Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute”.

Having reached this conclusion the Court felt satisfied (in Gobind) that drastic inroads directly into the privacy, and indirectly into the fundamental rights of a citizen, would be made if Regulations 855 and 856 were read widely. Accordingly, the Court followed the well-worn constitutional expedient of reading down^***. It read down the impugned provisions as being applicable only to persons suspected to be habitual criminals or persons determined to lead a criminal life or whose antecedents would reasonably lead to that conclusion. Striking a balance between the liberty of the individual and the security of the many, the court held that domiciliary visits and picketing by the police would be justified only in the clearest cases of danger to community security. It also ended the judgment with ray of a hope and a warning:

*In truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise these old police regulations verging perilously near unconstitutionality. With these hopeful observations, we dismiss the Writ Petition”.

The decision in Gobind will not go down as a landmark in the development of Indian constitutional law. But it has helped to “point-the way”. In Gobind, the Supreme Court had not only given the right of privacy a foothold in the Fundamental Rights Chapter. It had also set the tone - containing the Orwellian fear of the ‘knock-on-the-door-at-night. By judicial dicta, George Orwell’s frightening story ‘1984” has been (hopefully) pushed back for decades!

Foot Note:

* Benjamin Nathan Cardozo, when on the New York Court of Appeals became America’s most celebrated State common law Judge. In tort law he was renowned for expanding the class of persons to whom a legal duty was owed. His method of reaching decisions made him the standard bearer for a movement that came to dominate American legal thought. Whilst still serving on the Court of Appeals he was invited to deliver the Storrs Lectures at Yale, which became his classic statement of the proper judicial decision-making process: The Nature of Judicial Process (1921). Cardozo argued for what he described as sociological jurisprudence, rooted in a sophisticated understanding of positivist jurisprudence and expressed himself with elegance and clarity. He was Associate Justice of the Supreme Court of the United States from 1932 to 1938. Cardozo’s opinions, like those of Justice Holmes and Justice Brandeis, are cited for the authority of the author and the clarity of his pen. He is remembered in innumerable current opinions of members of the Supreme Court for his attention to justice, his emphasis on the purpose of law, and for his majestic description in his books and opinions of the relationship between policy and precedent.

** The Phoenix was a mythical Greek firebird which dies in flames and is then reborn from the ashes. Under India’s old law of arbitration (enacted in the Arbitration Act 1940) howsoever comprehensive the terms of an arbitration clause the existence of a contract was a necessary condition for its continued operation; It perished with the contract. In 1926 AC 407 (Hirji Mulji v. Cheong Yue Steamship Co.) Lord Summer in a sentence of beautiful imagery had said that “an arbitration clause is not a phoenix that can be raised again by one of the parties from the dead ashes of its former self”.

*** The “reading down” doctrine requires that, whenever possible, a statute is to be interpreted as being within the power of the enacting legislative body. What this means in practice is that general language in a statute which is literally apt to extend beyond the power of the enacting Parliament or Legislature will be construed more narrowly so as to keep it within the permissible scope of power. Reading down is simply a canon of construction (or interpretation)

Bolstering the Protection to the Entire Police Officers from Criminal Prosecution -- Has Section 197 Cr. P.C. been Dismayed by Notification under Sub-section (3) Thereof?

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

Introduction

 Is previous sanction necessary to take cognizance of offence committed, while acting in discharge of their official duty, by the police officers, who are removable from service save not with the sanction of the Government? What is the breadth of the notification issued by the State Government of Kerala under S.197(3) of the Code of Criminal Procedure, 1973 (the Code, for short)?

The trial is the tool to ascertain the complicity of the accused. It is, therefore, telling aye to proceed with the trial will be the approach of the courts of law, when there is allegation that the accused has committed an offence. The exception to this process applies where any prerequisite barring cognizance, is not complied properly. Procedural law prescribes such preconditions. Some public servants, by virtue of their office, cannot be prosecuted without the previous sanction of the Government. S.197 of the Code gives such a protective umbrella to them. This part of procedure has ever been a subject to be mulled over by the academicians, the bar, the bench and the officials concerned. Unless the law respecting the protection given to such privileged persons is followed scrupulously the result will be the miscarriage of justice.

The Law

Shorn of unnecessary details, suffice it to quote the relevant portion from S.197 of the Code:

“197. Prosecution of Judges and public servant.-- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013.”

So it is unequivocal that, primarly, certain class of officers only are protected from criminal prosecution without there being a sanction from the Government concerned as envisaged in S.197(1)(a) and (b). Those are officers not removable from the service without the sanction of the Government. However sub-section (2) protects the Armed Forces of the Union, thereby the courts are fettered to take cognizance of offence committed by any member of such force, if committed while acting or purporting to act in discharge of their official duty, without the previous sanction of the Central Government. Officers’ rank is irrelavant under S.197(2). The State Governments are entitled to extent the operation of this special provision to such class or category of members of Forces charged with maintanance of public order by way of promulgating a notification to this effect. Then the members of that class or category also come under the catagory of officers covered under S.197(2) of the Code. Thence, the notification entitle such force to get the same protection available to Armed Force. Obviously, the rank of officers does not matter. Plainly, this is the law.

The Issue

Lately, in Unnikrishnan v. State of Kerala (2014 (1) KLT 903) a Single Bench of the High Court of Kerala held that, a Sub Inspector of Police in the Kerala State Police cannot be prosecuted without previous sanction of the Government of Kerala if his alleged act of offence is attributable to in discharge of his official duty. Relying on the selfsame judgment, the learned judge, in Sasi D. & Ors. v. State of Kerala & Ors.(2016 (1 KLT SN 30 (C.No.24) has decided that the constables in the Kerala State Police cannot be prosecuted sans such a sanction. Earlier other Single Benches in Shoukkathali v. State of Kerala (2005 (3) KLT 634), Moosa Vallikkadan v. State of Kerala & Anr. (2010 (3) KLT 437) and in Viswambharan v. State of Kerala (2010 (4) KLT 875) also decided in the same manner, wherein offences were alleged to have been committed by the Sub Inspector or any other subordinate Police Officers. Despite this, in the meantime, another Single Bench in Harikumar v. Suresh (2014 (2) KLT 1028) held that the Sub Inspector of Kerala Police can be prosecuted without such sanction, even if his work is attributable to the discharge of his official duty. In M.J. George v. S.I. of Police (1983 KLT 349) the High Court of Kerala took the same same view. The gamut of those decisions in the wake of its conflict and their legality are being attempted to scan here.

The Kerala Notification Under Section 197 (3) Cr. P.C.

While exercising its powers under S.197(3) of the Code, the State Government of Kerala have pronounced Notification No.61155/A2/Home dated 6/12/1977 (hereinafter referred to as the Kerala Notification) and the same is extracted below:

 “Home (A) Department, Trivandrum, 6-12-1977

NOTIFICATION

S.R.O. In exercise of the powers conferred by sub-s.(3) of S.197 of the Code of Criminal Procedure 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of sub-section (2) of the said section shall apply to all members of the Kerala State Police Force, charged with maintenance of Public Order.

                                                                                 (By Order of the Governor)

                                                                                 S.NARAYANASWAMY

                                                                                  Special Secretary.

EXPLANATORY NOTE

Section 197 of the Criminal Procedure Code affords protection from false, vexatious or mala fide prosecutions to some categories of public servants in the shape of requirement of previous sanction of the Government concerned, when such public servants are accused of an offence, alleged to have been committed while acting or purporting to act in the discharge of their official duties. The members of the Armed Forces of the Union are also protected. Government consider that members of the Kerala Police Force who are charged with the maintenance of public order are also in need of similar protection. The notification is issued to achieve this objective.”

This notification has come to the rescue of the accused involved in cases Viswambharan (supra), Unnikrishnan (supra), Moosa Vallikkadan (supra) and Sasi D. and Ors. (supra). But in M.J.George’s case the Kerala notification was not brought to the notice of the court. Similar notifications were issued by many a State Government in India. What is discernible from the above notification is that the Government of Kerala have directed that the provisions of sub-s.(2) of S.197 shall apply to all members of the Kerala State Police Force, charged with maintenance of Public Order.

Kerala Police Force And Its Various Wings

The Kerala Police Act, 2011 (the Kerala Act) envisages various kinds of Police force and it is not confined to the law and order only. This is clarified under S.14 of the Act, which is reproduced blow:

“14. Kerala Police.- (1) There shall be one unified Police Force for the State of Kerala named the Kerala Police and it may be divided into as many Sub-units, Units, Branches or Wings on the basis of geographical convenience or functional efficiency or any special purpose as may be decided by the Government from time to time.”                            (emphasis added)

We get the details of many of such wings/categories from the website of the Kerala Police(a) http://keralapolice.org/wings/armed-police/malabar-special-police     b) http://keralapolice.org/wings/armed-police/rapid-response-and-rescue-force), Kerala Armed Police, Malabar Special Police, Rapid Response and Rescue Force etc., are some of such wings. These forces are formed for special purposes and are governed by the Kerala Police Act, 2011 and are parts of the Kerala State Police. Though the supreme officer of these units is the State Police Chief, these wings are separately governed by other superior police officers. So there cannot be more than one opinion that there are Police Force in Kerala, whose duties are differently defined, which comes, as far as the nature of work is concerned, within the law, order and maintenance of public order. Semantically there are clear difference between the law and order and the maintenance of public order.

Earlier View As To The Kerala Notification

Early in 1985, in K.K.S. Muhammed v. Sasi (1985 KLT 404) the Single Bench of the High Court of Kerala has stood upon this difference. The Court was considering whether the police constables, against whom some offences are alleged would get the protection based on the above notification? The Court, preliminarily opined that:

“Section 197(1) and (2) are independent of each other. In order to invoke the provisions of S.197(1), it is necessary that two ingredients must co-exist. In the first place, the person must be a public servant not removable from office save by or with the sanction of the Government, Second condition is that the act must have been committed by such a person acting or purporting to act in the discharge of his official duty. The prohibition against taking cognizance without sanction will operate only if these two conditions are there. The second condition is common to both S.197(1) and (2).”

Secondly, the Court came to the proposition that the State Governments are authorized to confer the protection under S.197(2) of the Code to any class or category of forces wherever they are serving and there is the restriction that the member or members of such forces must be charged with maintenance of public order. Finally, the Court came to the finding that the State Government is not entitled to extend the protection to all the members of the Kerala Police Force without any discrimination.

The High Court in K.K.S. Muhammed (supra) further explained the difference between the two. It is thus:

“7. Maintenance of public order is different from maintenance of law and order. Chapter X of the Code of Criminal Procedure deals with “maintenance of public order and tranquility”. Chapter XII deals with matters relating to maintenance of law and order, “Public Order” is an expression having vide connotation. It differs from law and order in relation to the reach of an act upon society. Similar acts may have different reactions if committed in different circumstances and contexts. If the act affects only specified individuals, the problem created may only be law and order. But if it affects the tempo of the community life, it is prejudicial to maintenance of public order. Criminal acts affecting individuals alone will come only under law and order. Those who are responsible for national security or public order may have to be the sole judges to decide in any particular instance what national security and public order requires. That may be the reason why protection was intended to be given to them against vexatious prosecutions in preference to others.”

Overruling K.K.S. Muhammed

It is trite to mention here that the decision in K.K.S. Muhammed (supra) has been overruled in Sarojini v. Prasannan (1996 (2) KLT 859) by the Division Bench of High Court of Kerala, holding the view that ‘maintenance of public order’ is the extension of ‘law and order’ and held that it is unnecessary that there should be anything specific to show that those charged with maintenance of ‘law and order’ have also been entrusted with the maintenance of ‘public order’, which is not so different or unrelated to require a specific investiture but is implicit in the former function.

Reference To The Supreme Court Decisions

It is necessary to mention herein that the learned Judges in Moosa Vallikkadan (supra), Viswambharan (supra), Harikumar (supra) and in Unnikrishnan (supra) have relied on/referred to a decision of the Apex Court, which was rendered in Rizwan Ahmed Javed Shaikh & Ors. v. Jammal Patel and Ors. (2001 (2) KLT SN 77 (C.No.98) SC = 2001 Cri.L.J. 2897) and in Harikumar, reliance was made to Romesh Lal Jain v. Naginder Singh Rana & Ors.(2006 (1) KLT SN 17 (C.No.28) SC = (AIR 2006 SC 336).

It is my humble view that the decisions of the High Court of Kerala excepting K.K.S. Muhammed (supra) and Harikumar (supra) referred herein are not expressing correct views on the implication of the Kerala Notification either in the background of the decision in Rizwan Ahmed Javed Shaikh (supra) or on Romesh Lal Jain (supra).

Analysis

Rizwan Ahmed’scase (supra) is an oft quoted decision on the subject. In that case the Apex Court was dealing with a similar situation where the Government of Maharashtra have issued a Notification (the Maharashtra Notification) under S.197(3) of the Code in respect of Police Force under the Bombay Police Act, 1951 (the Bombay Act). On bare reading one may think that this decision has complete bearing on the Kerala Notification, because of the proposition contained in paragraphs 13 and 15. It is reproduced as hereunder:

“13. The notification therefore applies to members of Bombay police force. Once it is held that the members of the Bombay police force are the persons to whom the notification issued under S.197(3) of the Code applies and if the act which is alleged to be an offence was done in discharge or purported discharge of the duty of the accused persons they will be entitled to the protection extended by sub-section (2) of S.197 of the Code.”

“15. The real test to be applied to attract the applicability of S.197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected.”

From the above, it is apparent that once the notification is issued in respect of a Force, then S.197(2) applies to them. Then there is no need to ponder over it to know if they acted in the maintenance of public order. This may postulate a proposition that all the members of the Force, in respect of whom a notification is issued cannot be prosecuted without sanction. But, a close reading of this judgment make it clear that, merely basing a notification issued under S.197(3) of the Code, there is no scope for bringing the entire body of police personnel under the sweep of S.197(3) and thereby to give protection as envisaged under S.197(2) of the Code. In order to understand this, it is necessary to quote the Maharashtra Notification:

“No.CR.P.O./78/9845/POL-3. In exercise of the power conferred by sub-section (3) of S.197 of the Code of Criminal Procedure, 1973 (II of 1974), the Government of Maharashtra hereby directs that the provisions of sub-section (2) of that Section shall apply to the following categories of the members of the force in the State charged with the maintenance of public order wherever they may be serving, namely:-

(1) All police offices as defined in the Bombay Police Act, 1951 (Bom. XXII of 1951), other than the Special or Additional Police Officers appointed under Section 21 or 22 of that Act;

(2) All Reserve Police Officers as defined in Bombay State Reserve Police Force Act, 1951 (Bom. XXXVIII of 1951).”

Let’s, firstly, note that there are palpable differences in between the Kerala and Maharashtra Notifications. The Maharashtra Notification specifies the category of Force.

Nextly, it is pertinent to note that it is a precondition, as per the Supreme Court decision, to identify that the notification is issued in respect of that particular force. The test stated in paragraph 15 applies only when it is found that, the Force comes under the notification in question. This is clear from the phrase ‘once it is held that the members of the Bombay Police force are the persons to whom the notification issued…’ So, holding a view, that particular Force are the persons to whom the notification is issued, is necessary. It was observed by the Supreme Court, that the preamble to the Bombay Act provides that it was enacted to consolidate and amend the law relating to the regulation of the police forces and the exercise of powers and performance of functions by the State Government and by the members of the said force for the maintenance of public order. So, it is clear that the force under the Bombay Act is formed for the maintenance of public order. The Kerala Act differs in that respect. The preamble does not say like that, whereas it gives the message that it is formed, primarily, for dealing with the law and order situation. Despite this, as per the scheme of the Kerala Act, there can be several wings/Units under that Act. The functions of these units may differ; some may have the duty to keep the public tranquility and the maintenance of public order, as in the case of State Industrial Security Force or Rapid Response and Rescue Force. So, in order to extent the protection u/S.197(3), it is a must to identify the force, whether they are charged with maintenance of public order or concerned with law and order. The ‘truism’ that the entire police personnel under Kerala Act are charged with maintenance of public order as a Battalion is difficult one to ruminate. It is clear that the Kerala notification is not issued in respect of the whole body of Kerala Police. Rather it is issued pertaining to the special wings of force comes under the Kerala Act.

Moreover, in paragraph 9, it is clarified by the Apex Court as hereunder:

“The person on whom the protection is sought to be conferred by the State Government notification is to be determined by reading the notification and once it is found that the State Government notification applies to the member of the force which the accused is, the scope, purview or compass of the protection has to be determined by reading sub-section (2) of S.197 of the Code, i.e., by asking a question whether the act alleged to be an offence was done or purports to have been done in the discharge of the official duty of the accused.”

Thus it is more clear that by reading the notifications individually only, it can be ascertained to whom the notification apply. All the notifications issued by different State Governments cannot be read together and weighed alike.

It is again a matter to be emphasised that in Romesh Lal Jain (supra) the Apex Court, though not adverted to Rizwan Ahmed’s case, differed from the proposition made in Rizwan Ahmed. In this case a Sub Inspector of Punjab Police was sought to be prosecuted under various sections of I.P.C., with an allegation that, while he was investigating a case under the Essential Commodities Act, committed misappropriation of seized properties. The notification issued by the Punjab Government, connoted similarly to Kerala and Maharashtra notifications was placed seeking immunity from prosecution as there was no sanction. The Supreme Court explained the differences between the public order and law and order and held thus:

“The expression ‘public order’ has a distinct connotation. Investigation into the offence under the Essential Commodities Act may not be equated with the maintenance of public order as is commonly understood. The activities of a single individual giving rise to irregularities of maintenance of books of accounts as regard an essential commodity or resorting to the black marketing, unless a volatile situation arises there from, cannot lead to disturbance of public peace, safety and tranquility, which are essential requisites of a ‘public order’.

The said notification is, therefore, has no application in the facts and circumstances of the case and consequently it has to be held that no sanction by the State in terms of S.197 Cr. P.C. was necessary as the Respondent could be removed from service by the Deputy Inspector General of Police and not by or with the sanction of the Government.”

Hence, to understand the ambit of the Kerala Notification clear picture about Rizwan Ahmed, Sarojini and Romesh Lal Jain is necessary. In the Kerala perspective, the decision in Harikumar gives a correct view. But this decision, did not properly address the inapplicability of Rizwan Ahmed to Kerala notification, it seems. Also this decision, though referred to Romesh Lal Jain’s case, did not say that the decision in Sarojini is no more a good law as the Apex Court had a different proposition as to the notifications under S.197(3) of the Code. In Harikumar’s case, the learned Judge explained the differences by referring to various Supreme Court decisions like Ram Manohar Lohia v. The State of Bihar & Anr. (AIR 1966 SC 740).

Conclusion

Another provision under the Code, where the Armed Forces are given special privilege is S.45. As per S.45(1) of the Code no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government. The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving. Thereafter such Force also will get the same protection as that of the Armed Force. Reading S.45(2) & 197(3) together, it appears that the legislative intention was to place only a small category of the police force in the equal pedestal of members of Armed Forces of the Union. Else, instead of the phrase “the Forces charged with maintenance of public order”, it could have been provided that “any Police/Armed Forces”. Virtually, a Force charged with maintenance of public order is in pari materia with the Armed Forces of the Union (in the present context) and may be for this reason, the Parliament entrusted the task to identify such Forces by the State and to extend the benefit to them too, by way of notifications. It cannot be forgotten that the said provision is a deviation from the general scheme of the law that all persons are to be treated alike. Thus, such an exemption clause cannot be so liberally construed than what is actually intended by the lawmakers. In carving out the category of high ranked civil officers and all the members of Armed Forces, there is a clear intelligible differentia. Likewise, the Forces charged with maintenance of public order are also to be treated separately, as they are also susceptible to frequent litigation by virtue of the nature their official task. Of course, the local police officers are also facing similar risks, but may not be as severely as the Armed Forces or Battalions usually deployed for curbing violent mob activities affecting public order or tranquility.

Form all the above the following points can be formulated:

1. The Kerala Police Force as such is not involved in maintenance of public order. There are different wings in the Kerala Police, whose functions are differently assigned as per the Kerala Act and the police administration.

2. There are fundamental differences between Kerala and Maharashtra Notifications.

3. The Government of Kerala, after having gained the spirit of S.197 of the Code, issued the Notification No. 61155/A2/Home dated 6.12.1977 intending only to protect the police officers, whose duty is to maintain the public order, and only when they are doing such functions.

4. In K.K.S.Muhammed the High Court of Kerala expansively elaborated the difference between the law and order and maintenance of public order.

5. The decision in Rizwan Ahmed cannot be applied carte blanche to all the notifications issued by different State Governments. This decision presupposes the individual reading of the notifications and finding that the notification applies to a category of public servants.

6. In Romesh Lal Jain’s case the Supreme Court expressed the view that law and order duty of the police and maintenance of public order cannot be viewed equally.

7. For the reason noted in point No. 6 and in view of correct understanding of Rizwan Ahmed’s case, Kerala Notification has to be viewed in its letter and spirit, which would inevitably lead to the conclusion that only some selected wings of the Kerala Police are covered under that notification.

8. None of the judgments such as Moosa Vallikkadan’s case, Viswambharan’s case, Harikumar’s case or Unnikrishnan’s case demonstrate the exact ratio laid down in Rizwan Ahamed’s case. Though, in Harikumar’s case, there is reference to the Apex Court decision in Romesh Lal Jain’s case, the aspect of differentiating the law and order from the maintenance of public order expressed in Romesh Lal Jain has not been properly adverted to therein.

9. It appears that, the precedential value of Sarojini’s case has lost in the light of Romesh Lal Jain’s case. Even then, confusion may arise whether the distinction between the law and order and the maintenance of public order explained in Harikumar’s case is legally sound, since the judgment is silent about Sarojini’s case (Division Bench).

10. Except for the limitations noted in point No. 8 and 9, the decision in Harikumar’s case can be found to be the correct law as far as the Kerala notification is concerned.

Section197 of the Code is an exception to the general rules that one who alleges, that another person has committed an offence, must get a chance to prosecute him. It is already answered by the High Court of Kerala, adverting to the Law Commission Report, in Harikumar’s case why some superior Police Officers only are protected from being prosecuted for their acts which constitute offence while acting in official capacity. Moreover the subordinates are also protected from prosecution as per various provisions such as S.113 of the Kerala Act, S.132, 197(2) and S.197(3) of the Code, whose are charged with the maintenance of public order etc.

The Kerala notification never envisages its operation to the entire police personnel in Kerala. It is not uncommon that police personnel used to exert force illegally to import confession or to show their puissance. The option to prosecute such men would not curtail the morale of the police; rather it would purify the force. Giving unnecessary protection, by interpreting that the Kerala Notification applies to the entire police personnel, would only defeat the legislative intention and make the first part of S.197(1) redundant.

It is humbly opined that, by going through all the above referred decisions, the notifications, the nuances of Kerala Act, it is apposite to think that the correct law pertaining to the Kerala Notification is not properly explained so far. Moreover, apparently, there are conflicts between the Harikumar’s case and Unnikrishnan’s case, apart from the conflicts among several other decisions. What is required is, as pointed out by the learned Judge in Harikumar’s case the Kerala notification must have been explicit about the categories of officers/Police Force covered under the same. The lower courts, the litigants and the departments concerned would continue to be in dilemma so long as the matter is not settled. It is, therefore, high time to address this issue either by a larger Bench of the High Court of Kerala or by issuing another notification by the Government of Kerala specifying the wings of the State police to whom the notification under S.197(3) would apply.

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Thanks to Sri. P. Krishna Kumar, Addl. District Judge, Thiruvananthapuram for his valuable suggestions.