Paper Read in a Conference of the Law Officers of Kerala

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Are Separation Agirts Between Spouses Valid?

(J. Duncan M. Derrett, D. C. L., Professor of Oriental Laws in the University of London)

In a decision of far-reaching significance (if it is correct) the Madras High Court has opined that not only ante-nuptial but also post-nuptial agree­ments to separate are void. Mulla’s Hindu Law, 13th edn.,p. 645 is cited for the view that present agreements to separate are valid, and we are now told in Thirumal Naidu v. Rajammal(1967) 2 MLJ. 484 that Mulla is wrong.

The wife sued for restitution of conjugal rights under the Hindu Marriage Act, 1955. The husband put forward an agreement between them that they should live separately. If the agreement was valid and binding the husband could not have left the wife without her consent and he could not have “with­drawn from the society of the (wife)” without reasonable excuse within the meaning of S. 9(1) of that Act. The wife argued that the agreement was extorted from her by unfair means, but in view of other arguments the learned judge did not pursue that aspect of the matter. He was satisfied that, even if the agree­ment had been freely consented to by her in full knowledge of her rights, it would have been void and would not have bound her.

This, it is submitted, is a matter of the greatest importance, to be taken very seriously. The basis of the judgment of the learned judge is one to which this writer would be inclined at first sight to give every possible support. It is an Indian judgment, based on Indian ideas and Indian cases, and’it rejectsas inapplicable the modern trend of English case law as not providing a proper precedent in the conditions of India, particularly in the background of the Hindu society. This is the sort of approach we have always wanted. But is it correct in this instance? The present writer started off with a hope that it would turn out to be correct, for the persistence of Hindu traditional ideas about marriage, Hindu norms even in the midst of non-Hindu practices, is a fact of life and deserves to be recognised adequately.

The learned judge notices English cases which, long ago, viewed seperation agreements with suspicion, and so considered many of them against public policy and so void: See Wilson v. Wilson 0848) 1 H L. Cases 538, H. L. It is manifest that this particular point of view is obsolete in England and countries u taking a similar view of the spouses’ contractual powers. Does it survive in India? The only cases to which the learned judge refers are ones to which, to start with, we must give particular attention. In the antiquated case of Tekait- Mon Mohini Jemadai v. Basanta ‘Kumtr Singh (1901) ILR. 28 Cal. 751 it was decided that a Hindu wife must reside, as a matter of Hindu law, with her hus­band wherever he chooses to reside-a proposition which, though not judicially declared not to be good law, is surely one which by no means everybody- would accept as the last word on that subject. The judgment of Mr. Justice Ghose goes into texts and case-law, both Indian and English, and concludes that an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove the wife from her parental abode is invalid as inconsistent with the Hindu law and against public policy. With respect, this must be right, for under Indian conditions many a son-in-law would be victimised were the contrary to be the law. Readers can call upon their own personal knowledge to confirm this aspect of the matter. It is evident that what was rejected by the learned judge was the ante-nuptial character of the alleged agreement and its tendency to place the husband himself within the power of the wife’s parents- a situation which seemed evidently contrary to public policy. But we may mark his words (p. 765):

“There is a fundamental difference between a case where an agreement for separate living for a time is entered into during the continuance of marriage and an agree­ment before or at the time of marriage controlling the rights of the parties which the law confers upon them after the marriage and which, if enforced, might make the marriage itself nugatory or infructuous. Such an agreement would seem to be opposed to public policy.”

Such an agreement was struck down in Tekait case.

In Krishna Aiyar v. Balammal (1911) ILR. 34 Mad. 398 a Brahmin, after refusal by his wife B to return, brought a suit for restitution in 1903. The suit terminated in a compromise between A and B in July 1904, by which it was agreed that B should return and live with A and that if at*any time thereafter she should desire to live apart from A, she was to be paid Rs. 350 by A. B never returned to live with A, who in July 1907 brought a suit for restitution alleging a demand and refusal in February 1907. It was held, following the Tekait case (1901) ILR. 28 Cal. 751 that the agreement, providing for a future separation, was invalid, it was forbidden by the Hindu law. Such agreements must be considered as opposed to public policy and unenforceable. Their Lordships, Sankaran Nair and Krishnaswami Ayyar, JJ , were fortified by the fact that the English law (at that time, 1910) was the same. The only other case referred to was that of Meherally v. Sakerkhanoobhai (1905) 7 Bom. L. R. 602 a similar case between Khojas.

Now it happens that shortly thereafter the English law took a turn. The proposition upheld in Krishna’s case is no longer accepted since MacMahon v. MacMahon: Purser v. Purser (1913) 11. R. 428 in Ireland in 1913, being followed in Meyrick’s Settlement: In re Meyrick v. Meyrick (1921) 1 Ch. 311 in 1921, itself followed in Lurie v. Luric (1938) 3 All E. R. 156 in 1938.

Our question now is whether post-nuptial agreements to separate are void ab initio because they are contrary to the Hindu law. The English law by no means strikes such contracts down unless they contain some other unlawful element: P. M. Bromley, Family Law, 3rd edn. (1966), p.188; Derrett, Intro­duction to Modern Hindu Law (1963), § 312. If such contracts are void thousands of arrangements now in operation throughout India fall to the ground. From where did the notion come that spouses could separate by agreements if the Hindu law was so opposed to them? The answer, one regrets to say, is simply this that the Hindu norm was that the wife should never leave her hus­band, but that practice has enabled the wife to live apart with her husband’s consent. That this can happen even in the eye of the law is plain from the wording of the Hindu Marriage Act itself, S. 10(1) Explanation.

“...In this section, the expression ‘‘desertion’, with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party...”

What “consent” would this be if agreements to live apart could not be entered into?

The range of cases dealing with this question is enormous. Wives are coming before the courts and praying for an enhancement of their allowance under separation agreements, and if the latter come within S. 25 of the Hindu Adoptions and Maintenance Act, 1956, as they most frequently do, the prayer is granted. Would the courts be doing this if such agreements were void and against public policy?

One may suppose that it did not occur to the learned judge in Madras that agreements for the wife’s separate maintenance were separation agreements! The style of the usual textbooks on Hindu law is such that separation agree­ments do not form a chapter (the present writer’s is the exception). Neverthe­less it is clear that when a husband goes to the length of formally agreeing that he shall pay maintenance to his wife he is consenting to her living apart from him permanently or indefinitely, and her consent to accept this allowance makes the agreement a separation agreement even though it may not contain the non-molestation clause which is a frequent (but not invariable) ingredient in English separation agreements.

Mulla, in his commentary on the Hindu Marriage Act (Hindu Law, 13th edn.,p. 645) rightly points out that the Tekait case(\90\) 1LR. 28 Cal. 751 made a careful distinction between ante-nuptial and post-nuptial agreements. Mulla (i. e. the editor, Sri S. T. Desai) adds

“...There seems no reason why a valid agreement for immediate and not future separation bona fide entered into during the continuance of marriage with a view to enable the parties to live in peace should not be treated as empowering the court to refuse a decree for restitution.” In the present writer’s submission this is correct.

Further, if the remedy of judicial separation has been made available, as it has, to spouses under the Hindu Marriage Act, how can it be said that volun­tary separation is impossible? Can it seriously be argued that what can be obtained through the court could not be arrived at validity by the parties by way of settlement or compromise? If such a notion should be upheld there would be an anomaly of a most curious kind, unknown to Indian law. No one will seek to uphold the Madras judgment under discussion on the ground that it will give extra work to the Bar.

Finally, the present writer invites readers to look at a few sample cases where actual separations had taken place by agreement between the spouses, in not one of which separation was disputed on the-ground that it contravened the Hindu Law or public policy: Darasikrishnayya v. Darisi Hanumayamma (1955J AIR. N.U.C. 671 (Madras) (January 27,1954) (where the terms of the agreement are set out fully); Subbayyan v. Ponnuchami Chettiar (1941) AIR. Mad. 727; Sivagnana thammalv. Sankarapandian Pillai (1955) AIR. N.U.C. 1453 (Trav. Co.) (Feb. 26, 1954); Purshottamdasv. Rukshamani (1936) 39 Bom. L.R. 458, SC. (1938) Bom. 1, (1937) AIR. Bom. 358 (a particularly strong case); Seshi Ammal v. Thaiya Ammal (1964) AIR. Mad. 217 (cf. Pathuri Veer annas. P. Setthamma (1967) 2 An. W. R. 475) on the subject of the right to an enhancement); Mussammat Sham Devi v. Mohan Lai (1933) ILR. 15 Lah. 591 (where separate living by consent is parti­cularly adverted to at p. 595).

If, it is asked, how then do wives who have accepted maintenance as part of a separation agreement come forward later as plaintiffs suing for restitution, and why should not the court allow them to attempt to effectuate a reconcilia­tion j because they after all remain wives in the eye of the law, the _ answer is simply this: not that they want a reconciliation and want to live with their hus­bands again, but that they want mors money out of them. The case is the same in reverse with the husbands who sue for restitution when their wives have applied for maintenance from them under S. 488 of the Criminal Procedure Code: the husbands do not want a reconciliation-all they want is to avoid paying the money. A simple solution, and unworthy of the highfaluting appeals to the spirit of the Hindu law and spouses’ duty to remain ever faithful, like birds in a nest. Let us by all means remain aware of the traditional factors which make Hindus ‘Hindus’: but let appeals to them not be mainfestations of dissimulation.

This is Nixon’s Land Calling

(T. G. John, Advocate, Trichur)

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

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

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

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

x                                          x                                   x                                x

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

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

Q: Was there any provocation?

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

Q: A friendly tap or a rough one?

A: “No, Sir, it was not friendly”.

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

CORONA AND THE LAW

(M. Marcus, Advocate, Ernakulam)

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

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

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

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

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

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

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

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

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

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

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

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

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

The March of Law

 (T. G. John, Advocate, Trichur)

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

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

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

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

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

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

“No parking crime was my intent,

Towards one shop my steps were bent;

I humbly beg your Lordships pardon,

For penance I will weed my garden”.

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

“Receipt herewith returned intact,

Parking in Herford is in fact,

A problem we should treat with care,

For fines are imposed on those who dare!”.