Judicial Reform As An Imperative*

(By Justice Jasti Chelameswar, Judge, Supreme Court of India)

Dear brother Kurian Joseph, Mr.Kaleeswaram raj, author of the book “Rethinking Judicial Reforms: Reflections on Indian Legal System”, Justice Basant, my one time colleague at the bench, Mr. Raju Ramachandran, senior advocate, ladies and gentlemen,

I am happy to be here this evening for a number of reasons.  A book release function is an event which I always enjoy whether I release or receive the book or simply participate in the programme. I know the author. The book is well written. I am not saying this to please the author.  I have gone through three or four articles of the book. Participating in this event gives me an opportunity to be in a gathering of Keralites, a state which I had the privilege of serving for 18 months. All these reasons are good enough to make me happy.

The occasion demands me to say something about the author and the book.

Mr.Kaleeswaram raj has argued a few cases before me when I was chief justice of high court of kerala and couple of times in the supreme court.  On one occasion, he was critical of one of the judgments rendered by me as chief justice of high court of kerala.  He said that I missed an opportunity of laying down something very profound.  It was this article of mr.Kaleeswaram which made me take a serious note of him, not because he was critical of my judgment but because I realised that he was a man who has the energy and enthusiasm to critically analyse the judgments. 

Lawyers are more willing to criticize judges than critically analysing the judgments.  Successful lawyers hardly have time or patience to critically analyse judgments.  Some lack determination and others the necessary resources to publish.

In his article, Mr.Kaleeswaram made a reference to Jacques Derrida. I confess that I have no in depth knowledge about Derrida’s theory of deconstruction, though I am broadly aware of the theory.  The reference to derrida really made me take note of Kaleeswaram raj’s intellectual abilities. I like people with that endowment.

I have an uncomfortable feeling that we have become a society which admires and promotes mediocrity. Brilliance is not admired. Mr.Kaleeswaram by now should have been a prominent figure in the indian legal system.  I believe that he has not got the recognition which is due to him.

I believe today that the kind of intellectual inquisitiveness which was exhibited by young lawyers of the earlier times and the excitement which they experienced when they had an opportunity to hear a brilliant argument in the court hall appears to be missing.  If I am proved wrong, I will be the most happy man. I am talking about the averages of the profession.  I know that some of the youngsters are brilliant.  The priority seems to have shifted from learning to money making. I am not at all against lawyers making money. Make it by all means. But make it honourably. That is what I was told when I was an youngster. Legal profession is something more than a mere occupation.  Arguing a case well or writing a good judgment or making a critical analysis of a judgment always gave me greater satisfaction.

I have heard disparaging remarks being made by people occupying high constitutional offices about lawyers who have an academic bent of mind. A very tragic state of affairs.

I believe the period between 1960 to 1990 did not attract the best minds to the legal profession. The best minds of those years were attracted to the study of medicine or technology. Some even opted for the civil services. However, there have been exceptions.

But post 1990s the situation is slowly changing, we find youngsters getting into the law colleges and profession, by choice. The choice is understandable.  Some of the successful lawyers in the Supreme Court make more money than successful film stars like Amitabh Bachchan or Rajinikanth. Perhaps that offers an explanation why the youngsters, are attracted towards the profession. I am not trying to denigrate the youngsters coming into the profession. I am trying to understand the various factors which attract youngsters.   Making money is one of the prime activities of all human beings. And the profession today has the potential of offering you limitless economic success. In the process, we find brilliant youngsters coming. I only hope honestly and pray that the future of this profession is going to be bright because ultimately the success of the judiciary depends upon the quality of the bar. The strength and the success of the judiciary, and the utility of the system depend upon the quality of the members of the bar. I see a hope. Some of the youngsters are simply brilliant. Today, they have greater avenues of information. Our generation and the previous generation coveted a photographic memory, I think it has simply become irrelevant in the modern world. Have a smart phone in your hand, your memory can be kept aside and you can retrieve anything what you want from that instrument. Before I acquired a smart phone, I used to remember at least 300-400 telephone numbers by heart. Today, I don’t remember my own telephone number, honestly ... Leave it there. !!

Having said so much about the profession, the lawyers and their state of affairs, I shall now come back to the book.  Mr. Raj in his book has touched various aspects of the legal system. I would like to mention only three of them for this evening. The first one is the most ‘glamorous’ topic for the last two years- the judicial appointment process. The second one is the eternal problem of indian judiciary – the law’s delays. The third topic is the better management of court system. In my view, they are all interconnected.

As far as the judicial appointment process is concerned, all of you are aware of the on-going story. There can never be a final word in this matter.  There are views and views. What was considered right in the 1950s and the 1960s became doubtful by the 1970s and the 1980s. By 1990s the process became objectionable and unconstitutional. A substitute was invented by a judicial interpretative process. However, with passage of time, doubts came to be expressed about the correctness of the substituted process. Another legislative experiment was made by way of the njac. And you know the result. The majority of the bench held it to be an unconstitutional exercise. Well, that’s the law declared and we are bound by it. But in a democracy, the debate can always go on and will go on; it will not stop. That is the beauty of a democratic system.

What is the right appointment process? Who should be the appointing authority?  Should there be a consultative process in the matter of judicial appointments and who should be the participants in such process? Who will have the last word? Who will have the primacy in the consultative process? These are all questions which possibly have multiple answers.  Irrespective of the answers to each of the above questions, the fact remains that all the exercise is meant for finding out the best available material for manning the judicial system. All of us are aware of the fact - though most of us are not willing to speak - that the selection process leaves something more to be desired.  Whether we are really picking up the best possible or available material for the bench?  It is a question which each one of us will have to answer for ourselves. I believe that the best possible material perhaps is not being picked up for elevation to the bench. So how do you solve this problem? It is an eternal experiment and the eternal vigilance of the bar is the price. Unless the bar as a body is vigilant about it, unless the bar speaks up and expresses its views about the process, things will not change.

If you want, I will tell you an example.  A few years back I was in Gauhati. I was the chief justice of the high court, and a recruitment process took place for junior civil judges’ post. We had to select about 75 candidates to the post of junior civil judges. The selection process was concluded with a written examination and a viva voce programme. After the programme was concluded, I received a delegation from a particular organisation. For obvious reasons, I am not mentioning the names. The grievance of the organisation was regarding selection of 12 or 14 candidates who were not the “children of the soil”- who hailed from the other states and got selected.  According to the delegation, that resulted in depriving “the children of the soil” the opportunity of 12 or 14 appointments.  I tried to convince the members of the delegation that such an argument is impermissible under our constitutional scheme. On the other hand, it positively prohibits it.  Of course, the members of the delegation were not very convinced about it! But then they had no answer to it. At least, in law, there is no answer to it. Then the second reason I gave them is relevant for us:- that is, if these 12 or 14 candidates were ignored (for whatever reason), necessarily the next best had to be selected.  I told them that it was not going to be my problem. I would leave that court some day or other, if not immediately. (it took me three years to leave that court). But the bar would be stuck with those less qualified people; they will have to appear before those less accomplished judges and at some point of time, later the bar would complain that they have to appear and argue before substandard judicial officers for whose appointment only the bar would be responsible.

What happened thereafter is not relevant for our purpose. For various reasons we are not able to pick up the right persons, in the sense, the best persons. I am not saying all those who are picked up are not the right people, but there could be better choices. We invent hundred and one reasons for preferring the less than desirable candidates.
I think, the sooner we get rid of this, the better.  It is better for this country and the system.

Some nine years ago, I said on the diamond jubilee event of the gauhati high court as the chief justice of that court that I didn’t want to make any high sounding speech. I simply said that I want my children and grandchildren to live in this country with dignity, therefore I need to protect this institution. If each one of us remembers this fact, everything would be alright in this country. Somebody could be arrested by the police illegally.  Somebody could be robbed on his way back home.  Unless you have some system in place to protect you from such criminal activities, you will not be able to live in peace or with dignity in the country. Therefore, we need a good, clean, competent and efficient judiciary. And each one of us who is associated with the system at this stage owes an obligation, owes a duty to make every effort to establish or maintain such a judicial system.

Let us come to the topic of delays and better management of the legal system. Delay is a huge topic. There are innumerable reasons behind it.  It may not be possible to touch all of them, not necessary also in a book release function. One of the necessary or inevitable factors which contribute to the delay is the low level efficiency of the system, of the personnel which man the system.  When I talk about the personnel, I am talking about both the bar and the bench. The efficiency levels are not up to the requisite standard.  All of you are practising here. Just visit any court (in the supreme court) on any monday or friday. In my opinion, at least 60% of the cases which are brought before the supreme court on monday and friday should not have crossed the gates of the high court.

This country lived without a supreme court for a hundred years before the establishment of the supreme court. Very few matters went to the privy council, after the federal court came into existence, for various reasons – distance and expenses etc. But the point is not that.the high courts enjoyed such a status and such a prestige. The quality of the High Courts was such that in those years, in quite a large number of cases, people never thought of questioning the decisions thereafter. Today, the situation is different. All kinds of matters are brought before the Supreme Court. I am not blaming the litigant, he may have a genuine grievance. But the question is, can the supreme court handle all these? Is it possible in any country for the highest court to handle every legal problem occurring in the country, is the question. If we don’t devise a system, if we don’t improve the efficiency of the system to assure the litigant about the quality of the adjudicatory process and the efficiency and integrity of the system, the Supreme Court is bound to be flooded with litigation which it cannot handle. Bail applications, delay condonation petitions, panchayat and municipal ward elections disputes - everything has to come up to this court. It only speaks not very well of the efficiency of the system. On Bhagwan das road – undoubtedly you find some of the best lawyers in the country here - some of these brilliant lawyers will always be able to toss up some questions of law to be examined by the supreme court. 

At least in my view - some of my brothers may not agree with me - the supreme court cannot attend to every legal error committed by the system in this country. That’s not the job of supreme court. If the supreme court starts correcting every error committed by every judicial body or a quasi-judicial body in this country, it cannot do its job, i.e., constitutional adjudication - in one of my recent judgments (Reena Suresh Alhat v. State of Maharashtra & Anr.(2017) 3 SCC 119)  I quoted felix frankfurter  in whose view, the court would be failing in its larger duty as ultimate law giver of the country, if it will be settling individual disputes between the parties. But all this is happening because, all of us believe, at least lot of us believe, that the quality of the high courts, nowadays, is not good. I have heard quite a few people saying it. The question is how do we strengthen the high courts? How do we improve the quality? As I mentioned earlier, improvement of the quality of the institution necessarily starts from the improvement of quality of the bar. Until we attempt it, the improvement in quality will not come.

The management of the court is another problem. At various levels the management problem occurs. Management problems are inherent in the model which we adopted in this country. Since the highest court of the country sits in division benches- some 13 courts are sitting today - we are bound to have management problems. What is decided in the first court is not known to the second court on the same day. On the same day, on the same issue, there is possibility of two violently differing opinions coming out. This happens because we have adopted this model of division benches. How many cases are referred to larger benches every year on the ground that there are conflicting opinions on a particular question of law. That is the proof of the failure of management system or the shortcomings of the highest court. Because it is not just the supreme court; it is the highest court. If we have two conflicting judgments on any issue, the confusion percolates down creating more and more litigation. Because the moment you have two judgments, naturally lawyers will start relying upon those judgments and the judges at the high court and the subordinate courts will be wondering what to follow.

I shall tell you an anecdote which is a facially amusing but little deeper examination gives a sad story. It was almost a quarter century back. I was appearing in an election petition for the returned candidate. Incidentally it’s a matter of excitement for me those days. The returned candidate happened to be the then chief minister of Andhra Pradesh. His election was challenged on certain grounds (of corrupt practice). It was the 1983 election.1983-84 were eventful years. The chief minister decided to dissolve the assembly and go for a fresh election in 1985. Election was held. The old election petition was still pending. The matter was adjourned on a number of occasions for various reasons.  There was a preliminary objection which I raised in that matter based on the judgment of the supreme court in M.Karunanidhi v. H.V. Hande (1983) 2 SCC 473).           

Eventually after the 1985 assembly elections took place, the learned judge to whom the election petition was assigned, entertained a doubt in view of the dissolution of the assembly, whether the election petition was still required to be tried. I conceded that the matter had to be tried for the reason that there was an allegation of corrupt practice, and if proved, the chief minister was liable for disqualification. The learned judge had his own doubts. Because the disqualification is not automatic. Prior toMrs.Gandhi’selection case (1975), the disqualification was automatic.  The moment the high court recorded the finding that the returned candidate is guilty of corrupt practice, a disqualification from contesting any election for the next six years automatically followed. Post 1975, since an amendment was made to the representation of people act, the disqualification is made discretionary. Therefore, the learned judge desired to hear the attorney general and ordered notice to the A.G.

 Mr. Parasaran was the attorney general those days. He was busy – most probably with the bhopal gas case. There were two or three adjournments.  Finally Mr. Parasaran came. He told the court: that there was no choice but to try the matter.

 After the attorney general completed his submission, the learned judge asked him for a clarification.  The learned judge asked, “Mr.Parasaran, there is a preliminary objection in this election petition based on karunanidhi’scase delivered in the month of march 1983.  Some 6 months later in A.Madan Mohan v. Kalavakunta Chandrasekhara (1984) 2 SCC 288) on the same question, a view which is apparently conflicting with the view of Karunanidhi’sjudgment was laid down. What am I supposed to do sitting in the high court, with two conflicting views from the supreme court in the same year?” The brilliant attorney general Mr. Parasaran gave a very devastating answer. He told the court, “Your lordships are very lucky. There are two judgments before your lordships today, to choose. Your lordships may choose to follow either of them.  But more often I am confronted with a situation in the Supreme Court where I rely on the earlier part of a judgment and my opponent relies on the later part of the same judgment”. Mind you, he said it. I have no reason to tell you lies today! I don’t know whether Mr. Parasaran remembers it or not. I still remember.

This problem is inherent in a system where the highest court sits in division benches. That’s what I am trying to tell you.

There are lot of such issues which are required to be examined and attended to. Mr.Kaleeswaram raj has tried to highlight some of these problems. The questions are: where do you find the solution and who should find solutions and what is the role of the members of the bar in finding the solutions to these problems. These are the questions I would like to pose to you. I think I have taken sufficiently long time from you. I congratulate Mr. Kaleeswaram raj, I congratulate the publishers and I thank each one of you for bearing with me. Thank you all.

Foot Note:-

*speech delivered by hon’ble Mr.Justice Jasti Chelameswar, judge, supreme court of India, on the occasion of launching of book ‘rethinking judicial reforms: reflections on Indian Legal System’ authored by Mr.Kaleeswaram raj, advocate, at the Indian law institute on 21st March, 2017.

Cognizance on Yogic-Yama

(By A.M Asharaf, Judicial First Class Magistrate, Adimali)

Anger is undesirous wave of feelings or thoughts. Preasure emanated from litigation makes dust-noisy situation. Prudent and wise attempt of courts is not to keep its hands tied. Expectation of people for the performance of Justice, technological advancements and explosion of laws in every aspect of modern life have contributed sky rocketing the mental imbalance of legal professionals too. In coping up with balancing or regulating of such tensed situation, will be fair to the public and parties to the lis. Intelligently handling the situation is the key to diminish cloudy sky. It is incumbent on every lawyers, officer of the court to dilute any unpleasant tensed situation with his inborn talent with the parameters of law. Judges are not interested parties to the legal struggle and not fighting for their own power, but a voyageour through the sea of difficulties to reach at the destination of truth and realities. Lawyers butterfly, who put grains and chalff in the adjudicating or revolving drum by flight-fight journey. However, they too succor the courts in the truth finding process, though, clash for protecting interest, values, actions or directions and often spark of conflict between Bar & Bench. Thus, conflicts in the mindsetting can result stress or tension among all, which may expose conflict of interest, which may mould in to an actual or perceived opposition of need and values, its result may be the loss of equilibrium of body and mind.

‘Yogic Yama’ is a mental medicine, to control waves of thoughts. In other words, tools for anger pressure management or may be understood as the avoidance of undesirable realms . Desire to win a case and urge to defeat a party in the lis, are the main root of anger in the atmosphere of courts. One commonalities is that, in all, an element of undesirous wave of feelings would be in praesanti i.e., Anger. When things have gone wrong, desire become frustrate, anger emerges, such anger would be expensive also or rather, less mental fitness and variety of stresses. In these juncture we can’t think equally, as we think, the negative and positive thoughts may result at the same time in the mind.   Here, the breathing techniques can bring a balanced deep and rest.

The irate reactions likely to result from anger. There may be factors affecting Anger, such as ego, ignorance, vengeance or exceed love. The range of anger may not be uniform in the minds of every one as the anger waves are undulates. Yogic Yama deals with the thoughts of mind or control of anger waves. The thought waves may either be intense (rajasic) or very slow (tamasic). Tamasic waves of thought are dull and gross. Rajasic waves are intense, agitated state of mind.

When we breath through left nostril, the left brain will be active. It is analytical, mathematical, scientific is rajasic. When we breath though right nostrils, right brain will be active. It is phylosophical, devotional, compassionate, and used for emotions like love, hartedness etc. and it is tamasic. A proper Anger control or emotion management is a proper balance between the right and left brains. Here the concept of ‘Yogic Yama’plays a lot. In Yogic Yama this equilibrium can be called as an union of “Prana”and “apana” i.e., pranayama. I would call it as Yogic -Yama. When it survives in our profession then call it as Judicial Yogic Yama.

The following methods may be adopted for not being affected by anger

1. Inner silence (antar mauna)

2. Leaving that place

3. Drinking immediately ice water

4. Awareness about sense and situation

So also there are ways to control anger by walking, observing and doing interested things etc. All the above are Yogic practices, such as Meditation, Karmayoga, Pranayama, Kriyas. In the recent past all the stated above have proven to be victorious in the world. Every one of us, however great or small or sinner, rich or poor, king or begger strives for happiness. Because, We desire the pleasantness.

Third Party Funding in Arbitration

(By Saurabh Bhagotra, Solicitor, Zaiwalla & Co.)

Originally arbitration was designed as a more cost effective method of dispute resolution to litigation. Unfortunately high-value arbitration proceedings have ended up being quite expensive as they are often managed like a court case. A Claimant is at a disadvantage if he or she does not have the financial resources to instruct a team of lawyers to deal properly with the matter under arbitration. This goes against the principle of a right to justice for all.

To overcome the issue of risking its own finances or to obtain additional financing to pursue a legal action, an individual can approach a third party (with no prior connection to the case or party) to agree to finance all or part of its legal costs, in expectation of receiving a substantial percentage of a monetary order should the party be successful.

Third party funding for litigation has been in existence for a while, mainly for court litigation matters, in many jurisdictions including the United States, England and Wales, Australia, Netherlands, France. In January 2017, the UK Justice Minister, Lord Keen of Elie confirmed that the UK government has no plans to introduce laws to regulate the third party funders in the same way as law firms. However, in England and Wales, the Association of Litigation Funders has published its own self-regulated code of conduct to be abided by its subscribing members.

Singapore

In contrast to the UK, on 1 March 2017 Singapore took an important step in codifying the law on third party funding in arbitration claims (third party funding for litigation is still not permitted in Singapore.) The new regulation allows a party to approach a third party funder to finance an arbitration claim seated in Singapore, including related applications to the Singaporean court seeking interim relief, and for the enforcement of an arbitration award.

The significant amendment, and difference to the law in England, is to the professional conduct rules regulating the lawyers. Singapore lawyers are now obliged to disclose to the arbitral tribunal, and to every other party, the existence of a third party funding arrangement and the identity of their client’s funder. 

There is however some concerns with regards to the disclosure obligation imposed on the Singaporean lawyers which will need further clarification. They are:

What happens to the disclosure obligation when a party is not being represented by a Singaporean registered lawyer/firm and is acting as a litigant in person, and is therefore not required to comply with the professional code of conduct?

If a party is represented by a foreign lawyer who is not registered or practising in Singapore, does that foreign lawyer have to comply with the disclosure obligations contained in the professional conduct rules regulating only Singaporean registered lawyers?  

Any additional disclosure obligation to disclose funding arrangements will likely increase the legal costs incurred by a funded party to comply with such requirement. It is also not yet clear whether these costs including additional costs to retain a funder are recoverable as the ‘costs of the Arbitration’ under these new regulations. (In Essar Oilfields v Norscot, the English High Court did allow a party to recover the costs of obtaining a third party funder).

There may be drawbacks to third party funding but it will no doubt protect smaller businesses by putting them in a position to hire a reputable law firm (domestic or foreign) without risking its limited funds.

There may be drawbacks to third party funding but it will no doubt protect smaller businesses by putting them in a position to hire a reputable law firm (domestic or foreign) without risking its limited funds.There is no doubt that the Singapore government has introduced these rules to increase Singapore’s attractiveness as the seat of arbitration, and to topple England from its preeminent position as an international arbitration hub. These recent reforms will allow parties to access diverse range of funding options to pursue arbitrations claims seated in Singapore and will also ensure that transparency is maintained between the litigating parties.

Foot Note:

If you would like further information on this topic, or require advice in relation to third party funding arrangement for your legal matter, please contact our team at info@zaiwalla.co.uk

Goods and Services Tax (GST) -- A Boon or Bane for India?

(By Shruthi Manohar, Asst. Professor,

Bhavan’s N.A.Palkhivala Academy for Advanced Legal Studies and Research, Kozhikode)

India’s landmark tax reform, GST has finally become a reality. The Historic Central Hall of Parliament has witnessed the launch of the Goods and Services Tax. While addressing the Parliament, in the function held in the Central Hall of Parliament on the mid-night of June 30th The President, Mr.Pranab Mukharjee said that GST is a path-breaking legislation which would benefit the economy.¹

In India we have a situation of indirect taxes forming a substantial part of government revenue, which by itself shows its importance. As pointed out by the ICAI Indirect Tax Committee in its draft representation paper on GST, the indirect tax system in India is one of the most complex systems in the world. Multiplicity of taxes, varying rates, costly compliance and lower revenue to the public exchequer are some of the important reasons which have compelled the Indian administrators think of bringing in an effective tax system across the country which could address such issues.

Looking back it could be seen that, after globalisation many multinational companies were looking at India as a place to launch their businesses, as a place where they can manufacture goods for local markets as well as for exports. But the tax regimes and the complexity of the system stopped many in their tracks. Gradually Indian authorities realised that the system of taxation in existence had many inadequacies and it is imperative to be reformed and improved to enhance India’s global acceptability. Over the years, several improvements have been made in the tax laws. However, introduction of VAT could be termed as the first major coordinated tax reform initiative in India since Independence and it achieved a few milestones. Despite the success of VAT, there are still certain shortcomings in the structure of VAT, both at the Central and at the State levels.

It was at this point that the idea of introducing Goods and Services Tax (GST) came up in policy circles. This can be traced back to the report of the Kelkar Task Force on indirect taxes. It came up with the slogan, “GST is one tax for one Nation”. While looking to the tax structure of developed countries, it could be argued that GST is the need of the hour.

GST is a comprehensive tax levy on manufacture, sale and consumption of goods and services, i.e., a single tax on the supply of goods and services, right from the manufacturer to the consumer. It will be levied on all transactions involving supply of goods and services except those which are kept out of its purview. Credits of input taxes paid at each stage will be available in the subsequent stage of value addition, which makes GST essentially a tax only on value addition at each stage. The final consumer will thus bear only the GST charged by the last dealer in the supply chain, with set-off benefits at all the previous stages.²

The Constitution (One Hundred and First Amendment) Act, 2016 brought Art. 246A which provides that Centre and State can levy taxes on goods and services. Keeping with the constitutional requirements of federal character a dual GST with Centre and State simultaneously levying it on a common tax basis is made. The Centre would levy and collect Central Goods and Services Tax (CGST), and States would levy and collect the State Goods and Services Tax (SGST) on all transactions within a State. The input tax credit of CGST would be available for discharging the CGST liability on the output at each stage. Similarly, the credit of SGST paid on inputs would be allowed for paying the SGST on output. No cross utilization of credit would be permitted³.

In the case of inter-State transactions, the Centre would levy and collect the Integrated Goods and Services Tax (IGST) on all inter-State supplies of goods and services under Article 269A (1) of the Constitution. Thus we will be having CGST levied and collected by the Centre, SGST levied and collected by the State, and IGST levied and collected by the Centre⁴.

The system of taxation of goods which we had here prior to the introduction of GST is an origin-based tax system where the manufacturing (origin or exporting) State collects Central Sales Tax (CST) on goods being sold inter-State. Since it is a tax collected by the State of Origin, the destination (importing) State does not allow input tax credit against CST. Therefore, CST remains a stranded cost for inter-State dealers and manufacturers using goods procured from other States. Since GST is a destination-based tax, (i.e., taxed at the place where supply has been made) all SGST on the final product will ordinarily accrue to the consuming State. The States where imported goods are consumed will now gain their share from this IGST paid on imported goods. Since the manufacturing base in India is not evenly distributed across States, a few States gain from this tax system. Kerala can be expected to be one such State.

The Central Government has notified the Goods and Services Tax Compensation Cess Rules 2017⁵, in order to compensate the loss of the manufacturing States by the imposing cess over and above the tax laid on Luxury goods. This is made for the first five years on some specified items like high-end cars and demerit goods including tobacco, pan masala and aerated drinks for a period of 5 years⁶.

Under GST, there would be only one tax from the manufacturer to the consumer, leading to transparency of taxes paid by the final customer. So far as the manufacturers and exporters are concerned, they are also expected to be benefited from GST. The subsuming of major Central and Sales taxes in GST, complete and comprehensive set-off of input goods and services and phasing out of Central Sales Tax would reduce the cost of locally manufactured goods and services, which ultimately can lead to better competitiveness for Indian goods and services in the international market giving boost to Indian exports⁷.

Hence it is expected that, the GST at the Central and at the State level will give more relief to industry, trade, and consumers through a more comprehensive and wider coverage of input tax set-off and service tax setoff, inclusion of several taxes in the GST and phasing out of CST⁸.

GST has introduced a four slab tax rates which levies 5%, 12%, 18% and 28% on various goods and services. Though it ensures competitive pricing, restaurant-accommodation services, on-line shopping, cinema tickets, admission to entertainment events or access to amusement facilities, etc., would be costlier under the new tax regime⁹.

Article 279 A of the Indian Constitution provides for the constitution of Goods and Services Tax Council to examine issues relating to goods and services tax and make recommendations to the Union and the States on parameters like rates, exemption list and threshold limits. Every decision of the Council shall be taken by a majority of not less than three-fourths of the weighted votes of the members present and voting¹⁰. Though an elaborate voting structure has been built into the decision making process of the Council in the Constitution, it is remarkable that in the 18 meetings held so far, all decisions have been taken by consensus in the Council¹¹.

Implementation of GST poses many challenges and concerns in spite of its merits. Economic principle of GST is that, it avoided cascading effect of tax. GST with exclusion of goods like electricity, petroleum products, cascading of taxes on these items would still remain. So we can only say that the effect of cascading would be limited, giving an impression that our new GST system is only a partly modified tax system.

GST is of course a major change. Theoretically it is a good concept. What it would be on the practical side is still to be seen. However positive the changes may be, challenges will have to be faced while implementing the new system, especially in the initial stages. The procedural complexities involved in the GST pattern might be disastrous for small enterprises. Use of electronic systems are important for GST migration which can also pose chances of difficulty for many small enterprises.

GST has become a reality. Nation has witnessed the launch of GST on 1st July 2017. In spite of the criticisms, its implementation is necessary and advantageous for the country. The problem is not really with the GST as it is, but more with its mode of implementation. The benefits of the proposed GST system could be reaped, once the challenges posed are addressed properly. It is not expected that a faultless GST could be rolled out in India as a single event, but faults will have to be addressed and rectified without hampering the basic spirit of the reform. In the days to come GST councils will have to review the design and make improvements in order to make GST a success.

Foot Note:-

1.   http://www.taxscan.in/good-simple-tax-india-switches-gst/8849

2.   http://www.cbec.gov.in/resources//htdocs-cbec/gst/new-faq-on-gst-second-edition.pdf

3.   http://www.gstindiaonline.com/pages/gstlegislation/GST%20FAQ/cbec%20faq-2017/001.htm

4.   Ibid.

5.   http://www.cbec.gov.in/htdocs-cbec/gst/compensation-cess-2017

6.   http://www.taxscan.in/govt-notifies-gst-compensation-cess-rules-2017/8927

7.   http://www.thehindu.com/business/Economy/gst-impact-how-key-sectors-of-the-economy reacted/article 19198357.ece

8.   http://www.cbec.gov.in/htdocs-cbec/gst/trade.pdf

9.   http://www.cbec.gov.in/htdocs-cbec/gst/index

10. http://www.cbec.gov.in/resources//htdocs-cbec/gst/new-faq-on-gst-second-edition.pdf

11. http://www.thehindu.com/business/Economy/live-goods-and-services-tax-launch/article 19185917.ece

Relevancy of Accomplice Evidence in Criminal Trial

(By M.E. Aliyar, C.J.M. Court, Ernakulam)

The word “accomplice”is not defined in the Indian Evidence Act, or in the Indian Penal Code. An accomplice is a conscious participant of a crime, which is the subject matter of a criminal trial. An accomplice involves himself to be criminal who had been concerned in the commission of a crime. The dictionary meaning¹, the word “accomplice” means a partner in crime, an associate in guilt. An accomplice hence is a person who along with another or others has taken some part, large or small, in the commission of the crime. It signifies a guilty associate in Crime.²The best test for finding whether a person is an accomplice is to see whether the person concerned is directly or indirectly concerned in or privy to the offence for which the main accused is charged. He must be proved to have done some act to assist the felon personally. The mere fact that one had knowledge that a crime had been committed and that he concealed or failed to disclose such knowledge does not render him an accomplice.“To render a person an accomplice, his participation in the crime must be criminally corrupt” (Beaumont. C.J.)

The term accomplice has a definite meaning in the English Criminal Jurisprudence. The word accomplice includes four categories of persons: -

1. Principal of First Degree.

2. Principal of Second Degree.

3. Accessory before the fact and

4. Accessoryafter the fact.

According to Prof.Marcus³, accomplice is a bastard who betrayed his comrade in order to save his neck from the clutches of law. So, an accomplice is a “Participies Criminies” and who had betrayed his associates and has apparently sought pardon for saving his own neck. He is therefore, presumed not to be a man of high character or a fair witness.

There is no formal legal definition of the term “accomplice” in England’s Law of Evidence too. But the House of Lords has recognized the following being as accomplices:

■   a person who takes part in the offence or who aids, abets, counsel or procures its commission.

■   a handler at the trial of the actual thief

■   parties to crimes, identical in type to the offence charge, evidence of which has been admitted as proving system and intent and negativing accident.

In England, as a general rule, subject to the sufficiency of Evidence and the public interest stages of the Code Test, accomplices should be prosecuted. It is contemplated in Sections 71 to 74 of the Serious Organized Crime and Police (SOCPA)⁴; an accomplice can be used as a prosecution witness rather than prosecuting him, if there may be circumstances where public interest warrants. In England the evidence of the accomplice may be used in the following situations:

•    to corroborate other witnesses on minor or peripheral issues.

•    to provide direct evidence on a point in respect of which the other available evidence is circumstantial.

•    to corroborate other evidence which in law requires corroboration or where a corroboration warning would be given?

•    where the absence of a witness may cause comment.

History of Criminal Law knows this type of men who in order to save their neck may give evidence against his associates. The fate of an accomplice in a criminal trial of ancient time in England was lucidly narrated by Sri. S.H. Ursekarin his book “Principles and Digest of Law of Evidence”.If the accomplice had given true version regarding the occurrence in which his comrade is to be convicted, he had to leave the country with his life. On the other hand, if it is proved that he gave false version regarding the occurrence and suppressed material facts he would be hanged. This condition rather prevented people concerned in crime to give evidence as accomplice evidence.

But now this approach has been changed and practice of pardoning the accomplice started. The pardon tendered to an accomplice is provisional and on condition that the accomplice gives or rather makes a full disclosure of actual facts in the case, in question. In the event of his giving a false version he would be prosecuted along with the other accused for the same offences. In other words, he will be transferred from the “Witness Box” to the ‘Criminal’s Dock’. The accomplice evidence is based on the principle that “a rogue only knows the way of a rogue”.⁵

In India also this practice is understood and followed. S.306 of the Code of Criminal Procedure empowers the Chief Judicial Magistrate or a Chief Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trail of the offence may tender pardon to an accused and to allow him to become a witness against his co-accused on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other persons concerned, whether as principal or abettor, in the commission thereof. He can then be called an approver.

Competency of an Accomplice to be a Witness

According to S.118 of the Indian Evidence Act, every person is competent to be a witness, if he can give rational answers to the questions put to him. The general rule laid down in S.133 of the Indian Evidence Act, is that an accomplice shall be a competent witness against an accused person. The section reads :-

“An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

The practice in England would be that only Jury can give credit to the testimony of an accomplice. According to Mr.Taylor, “the degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of Jury”. An accomplice is a competent witness and there is no absolute rule of law, which enacts that the conviction on the evidence of an accomplice is bad in law. It has been held in the case of “Mathu Murugan Swami Pillai v. Emperor⁶, that the statement of an accomplice is admissible in evidence.

Under Illustration(b) to Section 114 of the Indian Evidence Act, the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. It means that the credibility and trust worthiness of an accomplice to be a witness is under suspicion. It has been said by the Bombay High Court⁷,in Queen Empress v. Mangalal & Mangalal,that the testimony of an accomplice as a witness against his comrade is unworthy of credit unless it is corroborated in material particulars and it has become a rule of practice of almost universal application.

The combined effect of the S.133 and S.114 illustration(b) is to be taken into consideration. It may be noted that⁸ (Digest of the Law of Evidence in Criminal Cases) Section 133 of the Indian Evidence Act, is a legal declaration regarding the status of an accomplice and the legal validity of his evidence. It is a Rule of Law whereas the suspicion or doubt casts upon an accomplice in illustration(b) of S.144, is not a Rule of Law, but a Rule of Practice.

Even then we may reach the conclusion that it is not safe to rely on the uncorroborated testimony of an accomplice. The nature and extent of corroboration varies with the circumstances of each case and no hard or fast rule can be laid down. The court has to first to see whether the evidence of an accomplice is reliable and secondly even if it is so, whether it is corroborated in material particulars by other independent evidences, direct or circumstantial. The Apex Court of India, in Sitaram Saho v. State of Jharkhand ⁹, had observed that “the statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice’. Thus the law is that the evidence of an accomplice deserves outright rejection, if there is no corroboration in material particulars.

Justice Fazal Ali¹⁰ in Chanapara Chellappan v. State of Kerala observed that “the law is well settled that the court looks with some amount of suspicion on the evidence of an accomplice witness which is a tainted evidence “. The courts faced with apparently two inconsistent provisions in the Indian Evidence Act and have purported to harmonize the same by following the rule that “an accomplice will be a competent witness no doubt in the eye of law, but his evidence must receive sufficient corroborations. Corroboration may be by way of some circumstances that supplies sufficient confirmation of the truth of evidence of the accomplice in weighing accomplice evidence, the Judge should not overlook the position in which the accomplice may stand, and the motive, which he may have for stating what, is false. S.133 of the Indian Evidence Act can be availed of when no clouds of doubt upon the testifying accomplice are found.

In short accomplice’s evidence is an abject necessity where no other evidence is available. So the law tendered pardon to one of them so that the facts of the case may be made known. The prospect of freedom from punishment and liberty held out by the pardon naturally tempts the accomplice to testify against his associates. So it has been said that an accomplice is a man of doubtful veracity. We have to consider the circumstances under which an accused allowed to be a witness against his co-accused: it is allowed when the prosecution and police miserably failed to locate the evidence against the criminals. It may be dangerous rather than helpful because the policemen with the help of the accomplice may fabricate artificial or false evidence against the other accused. This kind of trap really amounts to the creation of an artificial crime either by the police authorities or their tools, where such a method is employed practically, which might make conviction illegal. Prudence requires that the courts should demand the prosecution to adduce some corroborative evidence. But this scenario will not justify always, particularly cases where crimes are committed by use of sophisticated weapons and tools by terrorist groups and people holding power and influence where police cannot safely dig into.

“To set a thief to catch a thief was presumed to be the idea that influenced the makers of the Indian Evidence Act to construct S.133, which is more or less significant in cases relating to terrorism and white-collar crimes of politicians and big industrialists where the prosecution tools and gadgets are considered to be inferior, not up to dated. Since the law breakers may have most modern weapons and tools in commission of offences, it is abject necessary to ignore the principles of rule of prudence of corroboration and Judges may be convinced to punish the wrongdoers of these kinds by invoking the provision cast upon S.133 of the Indian Evidence. So in my opinion, even though, S.114 illustration(b) of the Indian Evidence Act is there, S.133 of the Indian Evidence Act should be strictly construed.

Foot Note:-

1.   In the Oxford Dictionary-2013 Edition.

2.   Gopal S.Chaturvedi, Field’s Commentary on Law of Evidence, (Delhi Law House, New Delhi, Vol.5.)

3.   Prof. M. Marcus -He was formerly Reader in Law at Lal Bahadur Sastri National Academy of Administration, Missouri and formerly Member of Law Commission. He was formerly the Professor of Law, Govt. Law College, Ernakulam.

4.   W.M.Best, A Treatise on the Principles of Evidence, (H Sweet, London, 4^th Edn.1866).

5.   Prof. M.Marcus,Major Facets of Law in Indian Evidence Act, 2011 Edition.

6.   ILR 35, Mad.379.

7.   (Queen Empress v. Mangalal and Mangalal - ILR 14, Bom-115)

8.   Sarkar & Ejaz, Law of Evidence, (Eastern Book Company, Lucknow, 6th Edn, 2006) & Digest of Law of Evidence in Criminal Cases.

9.   AIR 2008 SC 391.

10. In Chanapara Chellappan v. State of Kerala(1979 - Crl.L.J.-1335).