"An old Fossil Overstays in Law"

(Prof. Philip K. Thayil, Advocate, Ernakulam)

The Indian Succession Act, No. XXXIX of 1925 still, contains a provision, namely S.213 adversely affecting and positively harming Christians in flagrant violation and brazen flouting of Arts.14 and 15 of the Indian Constitution. Articles 14 to 35 deal with fundamental rights. The above section in the Indian Succession Act is in violation of the legal provision guaranteeing fundamental rights under the Constitution of India. The section reads as follows:

"Section 213. Right as executor or legatee when established:-- (1) No right as executor or legatee can be established in any Court of Justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will is annexed.

2. This Section shall not apply in the case of wills made by Mahomedans, and shall only apply -- (i) in the case of wills made by any Hindu, Budhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of Section 57, (ii) in the case of wills made by any Parsi dying after the commencement of the Indian Succession (Amendment) Act, 1962 where such wills are made within local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits in so far as they relate to property situate within those limits".

What is intended by this section is that an executor or legatee cannot establish his right as executor or legatee in a Court without obtaining probate. But. Mahomedans' wills are exempted from the operation of this section. Even the wills of Hindus, Budhists, Sikhs or Jains are exempted from the application of this section, unless these wills relate to immovable properly in Calcutta, Bombay or Madras. But curiously enough Christian wills relating to any immovable property not only in Kerala built in Calcutta, Bombay or Madras are not at all exempted from the obligation of their being probated. Hindu, Budhist, Sikh or Jaina need not takeout probate for their wills relating to immovable property in Kerala whereas a Christian's will relating to immovable properly in Kerala or Bombay, Calcutta or Madras must have probate for establishing executors' or legatee's right as executor or legatee in a Court of law.

To take out a probate is not only expensive and time consuming but also, involves legal formalities and procedures in a Court of Law. So far as wills relating to immovable property in Kerala are concerned this obligation to take out a probate is cast on the shoulders of exclusively Christians alone. This is invidious distinction and contrary to the Articles 14 and 15 of the Constitution of India.

Section 213 of the Indian Succession Act is an anachronistic survivor from obsolete environment and it is very strange that such crude, antiquated law is not repealed although, the Constitution of India came into force decades ago.

This section is an old fossil that overstays too long to the mortification exclusively of Christians and to disgrace of democracy.

As regards Hindus this section applies only to those wills which are governed by the Hindu Wills Act (now Section 57 of the present Act). Therefore an executor or legatee cannot establish his right in a Court under such a will unless probate or letter of administration is granted. But such wills do not relate to immovable property in Kerala.

In the case of wills which are not governed by the Hindu Wills Act, e.g. (will executed in U.P., Kerala, Punjab or in the moffusil of Bombay or Madras Presidency) an executor (not being a Christian) may establish his right in a Court of justice without taking out probate. Can any law be more injuriously discriminative against Christians in a secular democratic State?

Section 213 read with S.57(a) makes it clear that where both person and properties of any Hindu, Budhist, Sikh or Jaina are outside the territories mentioned in S.57(a) the rigours of S.213 are not attracted. But even this concession is denied to Christians.

If a Hindu embraces Christianity at the time of his death, succession to his estate is governed by the Succession Act and any person basing his title under a will executed by such Christian cannot establish his claim without obtaining probate under this Section - Dwaraka v. Raj Rani, AIR 1932 Oudh 85 p. 87.

It is high time that such a Section (213 of Indian Succession Act) should be given a death blow to and buried down below never to rise again.

This Section remains on the statute book to the mortification of Christians and if not deleted to immortalise Indian democracy in infamy and disgrace.

The amendment suggested is the addition of the word "Christians" after the word "Muhomedans" in sub-section (2) of S.213 of the Indian Succession Act.

The Family Courts Act, 1984 - A Critical Appreciation

(By R. Lakshmi Narayan, Advocate, Ernakulam)

Family is the basic unit of the Society. Formation of the State and its evolution can be traced out from this small unit called Family. Man is a social animal. Being a social animal, he respects society, bound by the relationships created by the society and governed by rules framed by the society.

The first association created by man may be his family. This association is necessitated by the various factors like inter-dependence and personal security. So the family, as a basic unit of the society, has to be protected and preserved. For this, the relationships between the members of the family has to be regularised in order to keep a balance. For that purpose, the instrument of law is the only solution.

It is quite natural that the relation between members of family may strain due to ever so many reasons. So the law, as a protector of rights, and as an instrument to enforce duties arising out of matrimonial bond, gain significance. By applying law, the right and duties are enforced and then imbalance in family relations are settled.

For the settlement of dispute between the members of a family, there should be a procedure. The procedure must be effective and speedy one. Otherwise the imbalance in the family unit may bring trouble to the Society as a whole. So administration of justice in this field needs a special care. Taking into consideration of this special character of family and its significance in the society, the Government has come forward to enact a special Act which constitutes Family Courts in order to render speedy justice.

The word family means household or parent and their children who live in one house. The Family Courts Act of 1984 has not defined the word 'Family'. But going' through the provisions contained in that Act one can gather the meaning. Family in the context mean those persons who are bound by the matrimonial bond. Even though the Act has been passed as early in 1984, the implementation has started this year. So it will not be out of context to analyse some of the important provisions in the Act and to evaluate the practical side of its implementation.

Before the implementation of this Act, Civil Courts were exercising the jurisdiction over this subject. Now the Civil Courts are no more having the jurisdiction to entertain any case which falls within the four corners of S.7 of the Family Courts Act. Power of the Magistrates Court, under S.125 Cr. P.C. also has been abrogated and transferred to the Family Court.

S.7 of the Act deals with the jurisdiction of the Family Courts. It reads as follows:

"S.7-JURISDICTION-(1) Subject to the other provisions of this Act, a Family Court shall --

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation:-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--

(a) a suit or proceeding between the parties to a marriage for a decree for nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order of injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise--

(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973, (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.

A mere reading of this section is enough to understand that every possible dispute between the parties to a marriage and those things which arise out of said marriage will come under the purview of Family Court. A dispute between parties to the marriage as regards their property will come under the purview of this Act even if such dispute is not arising out of matrimonial bond. So it can be seen that the Parliament has entrusted a difficult task on the shoulders of the Family Court. To discharge this, necessary powers also are granted. Now the only thing which remains to be seen is its working. The question at this juncture is whether it will be a success or not in fulfilling the object of the Act.

Under S.9 of the Act, the court is duty bound to make efforts for settlement of dispute. It should assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit. S.9(2) also empowers the Court to adjourn the case if there is a reasonable possibility of a settlement between the parties. The section maybe misused by the parties to drag the proceedings. S.11 directs the court to conduct the proceedings in camera if the court so desires or if either party so desires. This provision may sometime encourage the parties to initiate unnecessary proceedings without the fear of public opinion.

S.13 says that no party to the-suit before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. This may hamper speedy disposal because parties are not familiar with the provisions of law or well settled position of law. They may not be in a position to convince the court, their points. If the parties are compelled to plead their case personally there is every chance of aggrevating the disputes, because unnecessary allegation may be levelled against each other by the influx of emotions. Appointment of Advocates as amicus curiae is no substitute for engagement of lawyers by the parties. The Family Courts (Kerala) Rules of 1989 permits the parties to have legal advice with the permission of the court. Even then the right to have legal advice depends solely at the discretion of the court.

As per the Act there shall be Counselling Centre attached to each Family Court. Principal Counsellor is its head. The court, after the appearance of the party, should direct them to the Counsellor, for the purpose of counselling. The Counsellor has enormous duties. He has to help the parties to arrive at a reconciliation. He is entitled to pay home visits to the homes of any of the parties. He can interview relatives, friends and acquaintances of parties. He can seek information from the employer of any of the parties. He can refer the parties to an expert in any other area such as medicine or psychiatry. After completing the above mentioned process he should submit a report to" the court. If the matter is settled the court will pass a decree according to the terms of settlement arrived at before the Counsellor. The Counsellor has a right to supervise custody of children and supervise, guide or assist reconciled couples. One is afraid whether such procedure will be helpful for a speedy disposal of the cases.

After getting the report from the Counsellor, the Chief Ministerial Officer shall call a meeting of the parties to fix a date of hearing of the petition. The Chief Ministerial Officer after consultation should fix a date and time of hearing before the court. The court after this takes evidence and decides the case. So it is a lengthy procedure which consumes much time. Even though the Act is meant to avoid technicality of procedure 5 as in the ordinary civil court, the object may not be attained as long as the lengthy proceedings before the Counsellor, Chief Ministerial Officer and" the court, are contemplated. Thus unavoidable delay in this procedure may aggravate the strains between the parties and stand in the way of just solution of problems. The parties in these type of cases are coming to the court only after availing all possible mediation and counselling through the well wishers, friends' and relatives. So they may not be interested to settle their dispute through Counsellors under the Act, who are totally strangers to the, parties and who have no special interest in them. This will only help to delay the adjudication of dispute.

Now only 3 Courts are established under this Act in the whole State of Kerala, i.e.,... in Trivandrurn, Ernakulam and Calicut. So the difficulty faced by the litigants in other Districts in Kerala is apparent. They will be put to difficulties until courts are established in their own Districts under the Act. Until then it will be better if the civil courts are empowered to continue their jurisdiction over these matters covered by the Family Courts Act.

The Preamble of the Act reads as follows:--

"An Act to provide for the establishment of Family Courts with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith".

When a special Statute is enacted it should be for removing the defects and difficulties that existed in the general law or procedure. If that aim is not achieved, the special enactment is of no use. So the Act as it now stands is facing a big challenge in the province of practicality. Only time can tell whether it succeeds or not in attaining its goal enshrined in the Preamble of the Act.

The Sound of Music

(T.G. John, Advocate, Trichur)

Kumar Hemendra Choudhary was the eldest son and heirapparent to the big estate of Maharaja Acharya Choudhary of DIGAGHAT of the former East Bengal which later became Eastern Pakistan after the Partition in 1947 and has now become Bangladesh. Hemendra was a tall handsome young man of 25 studying in the Second Year B.A. Pass class of Presidency College, Calcutta. From his age it could be well deduced that he was not quite serious at his studies. Every year he avoided appearing at the examination. An ordinary student would have been turned out of the college for such omissions, but the British Principal of the college allowed him to continue in the same class year after year as he was the son of a Maharaja, He was also the captain of the Cricket Team of the college. He lived in Calcutta in fine style quite befitting a prince. He resided in a fine two-storeyed -bungalow with lawn, flower, fruit and kitchen gardens and a bachelor as he was, he was living alone in the house with a full retinue of servants, cook, chowkidar, gate keeper and a driver for his Minerva saloon car.

It is sometimes said that there is scarcely any human being of culture and refinement who is not profoundly influenced by a sweet female voice or enchanted by the melody emanating from a soprano or contralto. Hemendra was no exception.

Hemendra had a telephone at his residence. It was in the early days of the telephone system, when the 'Exchange' had to be called by the subscriber for getting connection. One fine morning, Hemendra lifted the receiver and asked for Presidency College-Number 423. From the other end came the reply in a sweet voice, "Yes, Sir, sorry, the number you call for is engaged, will you please call after three minutes?" Hemendra hung the receiver on the hook. He was so pleasantly surprised by the enchanting melody of the telephone girl that he wanted to call her again immediately. He called again after three minutes, this time his heart was pounding heavily. "Are you the Miss who asked me to wait for three minutes for getting 'College 423"? Outcome the reply from the same soprano, "Yes, Sir, but unfortunately, the number is still engaged. I am afraid you will have to wait for some more time".

"That does not matter. But may I know your name". 'Why should you know it', cooed the soprano. 'But if you are very particular, my name is Molina Sarkar'.

Next morning and thereafter for several mornings in succession Hemendra was at the telephone talking to Molina. He came to know all about her that her native place was Dacca, she came to Calcutta to find a job, that she was twenty-one years old and she got the present job of a telephone operator some two years ago. And later he was informed that she was a good singer and was supplementing her income by working as a background singer in a local theatre and her great ambition was to become a Radio Artiste. A young man and woman having thus become friendly over the telephone, things began to progress rapidly. Hemendra's car would often be seen in the evening before the Working girls Hostel, where Molina was living, waiting for Molina to be taken out. And always it ended in dining out in First class restaurants and seeing films.

Molina Sarkar was a dark statuesque girl with billowing heir, chiselled nose and lips and a chubby face. She was in fact a rare specimen of dusky beauty and known in her circle of friends as, 'Kasti Devi' (granite goddess) and 'Abu Rani' (ebony beauty) and 'Krishna Bhamini' (black enchantress). Inspite of her dusky complexion, she had an extra-ordinary personality and her silvery voice even in her ordinary talk or rhythmic laughter would seem to the hearers like a sweet melody flowing from afar.

For six months Hemendra and Molina flitted like love-doves with a song in their hearts and star-dust in their eyes. Within that period Hemendra through his influence with All India Radio Officials procured for her the job of a full-fledged Radio Artiste. She was acclaimed as highly talented in Carnatic music. The greatest day came when Hemendra presented her a jewelled set, all set with diamonds and rubies and promised to marry her within three more months' time when his examinations would be over. Molina was eagerly counting the days, when things began to happen.

At the Radio Station, Molina acquired a girl friend. Her name was Mridula Mukherjee and she was a tall, fair and vivacious girl of about 24 with as fine figure whose work at the station was that of an announcer. Her large eyes with delicately poised eyebrows and lashed over with long curved eye-lashes were capable of stunning any young man. And gradually Hemendra began to switch over his time and attention from Molina to Mridula. This was resented vehemently by Molina who began to treat Hemendra contemptuously and the volcano burst into violent eruption when Molina declined with disdain all attempts of Hemendra to pacify her and meet her again. Considering his status, wealth and appearance, this scornful treatment by a woman was a new experience to him.

One January evening when it was bitterly cold outside, and a dense fog had enveloped the atmosphere, Hemendra Choudhary's car appeared at the Emergency Ward of the Medical College Hospital. Inside the car Hemendra was found in an unconscious condition, occasionally showing symptoms of severe pain in his left upper arm and great breathing difficulty. Strychnine was injected to improve his respiration but it proved to be of no avail. Complete respiratory paralysis occurred at 2.A.M. and in another ten minutes Hemendra was dead. The mysterious circumstances under which Hemendra died necessitated a post-mortem examination which revealed that his death was due to respiratory paralysis on account of poisoning of the circulatory system by some virulent poison injected into the blood stream. On his left upper arm, there was a puncture like that of a needle with a tiny laceration on one side.

The investigation was taken up by the CID of Police. Molina was interrogated and a search of her room resulted in the finding of an unfinished woollen cardigan and a nickel plated steel needle about seven inches long.

Molina Sarkar gave a statement before the police about her relation with Hemendra and their marriage settlement and Mridula's entering his life which was resented by her. And how later one day Hemendra came to her room in the hostel breaking all hostel rules, she was so disgusted with him that she even threatened to call the police. Molina was sitting in her bedroom and knitting a cardigan when Hemendra quietly opened the door and closed it again behind him. Hemendra then rushed towards her and taking her in his arms threw her down in the bed in an attempt to violate her. Not able to resist him, she gave a thrust with the knitting needle that she had in her hand on his left upper arm. He jumped up in agony and ran out of the room and that she knew nothing more.

The knitting needle was subjected to examination by chemical microscopy when some black sticky substance was found on the needle point. It was found that it was poison akin to 'Curare' (arrow poison) obtained from the Andaman Island and that it was partly soluble in dilute hydrochloric acid and completely soluble in alcohol.

Molina Sarkar was arrested by the police on suspicion. It was pointed out that the needle was very old and rusty with which she could never have knitted the cardigan and that the needle had poison on it which she would have procured from Calcutta with a murderous intention. But Molina did not detract an inch from her previous statement. She was sent up for trial for murdering Hemendra Chowdhary with a poisoned crochet needle and was committed to the Sessions which gave her the benefit of the doubt and acquitted her.

The mystery of the case, however, cleared itself when after the acquittal Molina Sarkar, the Silvery Soprano, committed suicide leaving the following note:

"I cannot stand this life any more without my Hemendra, whom I have cruelly killed. I deserve no compassion".

Uniform Civil Code - A Constitutional Mandate

(T.P. Diaz, Advocate -Trichur)

There has been a multiplicity of complicated personal laws in India; broadly categorised as Hindu system, Muslim system, X 'an, Parsis etc. Some have its origin in the Vedic period, some others in the medieval period; but the origin of these into a legal system in its present form is ascribable to the 19th century, under the British rule. 'Divide and Rule' was the motive behind all these legislations, to cement the bed-rock of the superstructure of their colonial empire. To keep up the tempo of communal discord, they exploited every tiling within their command and legislation was also not spared.

The protagonists of secularism and the founding fathers of our constitution had to wade through a pool of problems to enact and incorporate Art.44, in the constitution, because of the onslaught unleashed by the vested interests and communal forces. They could withstand the mounting pressures and refused to bow. Their successors in office also should be able to uphold the same tradition courageously to solve the problem, the best way, facing it.

Article 44 of the Constitution has been a mandatory provision, reads as follows:—"The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". Why should a government which claim secularism as its goal, a government which always resort to Constitutional provisions for various purposes, fight shy to give legislative expression to this mandate, enacting a uniform civil code?

Legislative competence and constitutional mandate have been there in abundance, but what is lacking, has been the political will and courage, and the same weakness was manifested by the enactment of "The Muslim Women (Protection of Rights and Divorce) Act, 1986-17/86, which action of the Central Government reminded the proverbial mother-in-law caressing, oiling and stroking the hairlock of the proverbial daughter-in-law to appease her and to pre-empt her jolting and kicking, while the daughter-in-law sits in a relaxed, pleased and victorious mood of taming the mother-in-law, as her maid-servant. The golden principle laid down by the Supreme Court in Shah Bano's case (1985 2.S.C.C.556), was nullified or neutralised by the said enactment, Shah Bano's preference for Criminal Procedure Code, over her personal laws, brought encomium, laurels and bouquets to her; but brickbats to the Government. The defence of her husband (a lawyer by profession), banging on his personal laws and Talaq, was rejected by the court and then the 'mile-stone Judgment'. "S.125, is truly secular in character. It was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions which are prophylactic nature, cut across the barriers of religion. They may not supplant the personal law of the parties, but equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws, unless within (lie frame work of the constitution, their application is restricted to a defined category of religious group or classes. The liability imposed by S.125 to maintain close relatives who are indigent upon the individuals' obligation to the society to prevent vagrancy and destitution. The moral edict of the law and morality cannot be clubbed to religion".

The court further expressed its regret that Art. 44 of our Constitution, has remained a dead letter. By enacting a uniform civil code, the cause of national integration will be accelerated. It will culminate in the narrowing down or bridging the gap of divergence of divorse competing religion-based laws. And the chance to enhance the national outlook and to engender a 'mother-India' feeling and thereby reducing the sectarian, fundamentalistic and divisive attitude of the various communities. The Court held further, "No community is likely to bell the cat by making gratuitous concessions on this  issue. It is the State which charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably it has the legislative competence to do so".

In a democratic country like India, where secularism has been a declared goal, sectional, communal and religion-based laws should be scrapped or replaced by National laws. Any delay or failure to lake follow-up action as mandated by Art.44, will amount to dereliction of duty and miscarriage of justice, which will expose a weak, pusillanimous government. Skyrocketed to the skyline in the advancement of technical, technological know-how almost in all the branches of science and technology, we enjoy today an enviable, exalted position among powerful nations. Our stridency to the top rung or row of great powers, is looked upon by other Nations with dismay and envy. But our personal legal system, that threads the Warp and Weft of the social fabric, remains rotten and stinking, reeling under the Vedic, Paleolithic or Medieval, irrational customs and conventions which leave our homogenous unity truncated.

"Honey on the tongue and sting in the tail"— attitude of the Government has been amply exemplified by the peroration, in the glorification of secularism on one hand, and the contra-legislation, on the other. The same had been the attitude of the Government, when they codified Hindu personal laws, which had been fading or vanishing out. in 1962,1 wrote an Article and published in Kerala Law Times (1962 KLT Journal Page 57), Titled, "Communalism thrives on legal loop-holes". I take liberty to quote a few lines, from that Article of mine, - "But those who are at tire helm of affairs --------- do not care to see that the main source of this foul stream of communalism, is --------- the legal system of the land".------------------" They make distinctions Mid discriminations on the basis of class and community, in the field of legislation. And if the Government itself does not view the people of India as a whole, why should the citizens view?" "So, we find that within the four boundaries of India certain emotional boundaries are visible". "Why can't the Government contemplate upon 'Indian Acts' applicable to all the citizens of India? Why did they codify the conventional laws of Hindus, which were really fading out?" "It is high time for the government to put a stop to these kinds of legislations and orders which seek to discriminate people of a community from the other".

The letter and spirit of the Constitution make it imperative on the part of the Government, only to enact National Laws, uniform codes and not religion-based communal laws, which drive a wedge in the national unity, which make a dent on Indian polity, and it will be a bountiful harvest for communal politics. Though belated, the time is ripe for the Government to indulge in these matters, on a priority basis and to enact a uniform Civil Code, applicable to all citizens, irrespective of their religion or community.

All along hitherto, Muslim community has been the stumbling block, opposing the introduction and enactment of a Uniform Civil Code. Eminent jurists and top-ranking leaders have pointed out that their apprehension, seems to be baseless and irrational, in view of the well-known protective guarantees, couched in Art. 25, regarding freedom of conscience and the right to profess, practise or propagate the religion of one's choice, and Art.29, regarding the right to conserve its language, script or culture. They should join the main stream of national unity, unhesitatingly and wholeheartedly. Conveniently they should not shut their eyes towards the vast and dynamic changes brought out in almost all the Muslim countries of the world, Mr. Justice, Tulzapurkar, in his famous Article on Uniform Civil Code, says, "for instance, polygamy has been completely prohibited in Tunisia (S.18 of Tunisian law of Personal Status) and Turkey (Art. 74 of Turkish Civil Code, 1926) while it has been curbed in Syria, Morocco, Egypt, Jordan, Iran and Pakistan permissible subject to certain conditions such as obtaining of permission from a third agency like the Court or Arbitration Council before taking a second wife. Similarly, the right of a Muslim-husband to give a unilateral Talaq has also been curbed in all these countries".

To combat the fissiparous tendencies, to anchor the pulls to different directions, by casteism, communalism and fundamentalism, Uniform Civil Code has been the only juristic solution; the only known panacea for putting an end to the various, diverse, unfair, inequitable and in certain cases, humiliating personal laws, applicable to various communities; and nauseating practices, eating into the vitals of the National unity.

In conclusion, I quote the following from Mr. Justice Chagla, "That Art. 44 is a mandatory provision binding the Government, and it is incumbent upon it to give effect to this provision. The Constitution was enacted for the whole country and it is binding on the whole country and every section and community must accept its provision and its directives".

Crime by implication

Justice K. Sukumaran, Senior Advocate, Supreme Court - Former Judge, Kerala and Bombay High Courts)

(1) By a judgment rendered on 24th of June, 1993, the Kerala High Court confirmed the conviction and sentence passed by the Sessions Court, Ernakulam, against Jiinaid and Azees. The offences alleged were under the N.D.P.S. Act. A thirteen year term of imprisonment was the deterrent punishment imposed by the Court as mandated by an inflexible law. The accused were found to be in possession of 11.6 and 11 gms. of cannabis. The crime came within S.20(b)(ii) of the Act and not under S.32, the residual section which provides for a lighter sentence - declared the court.

(2) The accused approached the Supreme Court. After some interlocutory proceedings, leave was granted.

One contention subsequently taken, was based on a failure to comply with S.50 of the Act. The Supreme Court had considered the scope and ambit of dial section in an elaborate decision in Balbir Singh's case (1994 (3) SCC 299). That section mandated the search being conducted in the presence of a Gazetted Officer, if the accused desired so. In that context, an added obligation was on the Investigation Officer: he must appraise the accused about such a right an accused has under the Act. A failure to do so will result in an acquittal of the accused.

(3) The view of the Supreme Court about the duty of the officer to inform the accused of his right to be searched in the presence of a Gazetted Officer has a striking similarity to the approach of the English Court which held that “a convicted person is entitled to know the extent of monetary liability; a fortiori when he is liable to lose his liberty if he fails to discharge monetary liability." (See R. v. Porter, 1990 All. E.R. 784).

4. The principle was affirmed and expanded benevolently in favour of the accused by two later decisions: Ali Mustaffa's case, 1994 (6) SCC 569; and Sayed Mohd's case ((1995) 3 SCC 610).

5. Applying the principles of those decisions the Supreme Court allowed the appeals and set aside the conviction and sentence.

6. The decision so rendered made it unnecessary for the Court to consider other contentions.

7. One such contention related to the meaning of the term 'cannabis'.

8. The High Court noted that the term is not defined in the Act. Cannabis (hemp) is, however, defined in S.2(iii) as: (a) charas, dial is, separated resin in whatever and whether crude or purified, obtained from the cannabis plant and also includes concentrated and resin known as hashish oil or liquid hashish.

(b) ganja that is the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;

9. The High Court was of the view that 'there are clear indications in the Act that the Parliament regarded cannabis as the genus of which cannabis (hemp), cannabis resin, medicinal cannabis etc. are species.'

10. The reasoning rested mainly on the description of title of the S.14 dealing with "Special provisions relating to cannabis", and on the words "Cannabis (excluding charas)" as occurring in S.10 of the Act. (S.10 dealt with the Rule making power of the State Government). In other words, a meaning was assigned to the term "cannabis', by an implication as it were.

11. The conclusion of the Kerala High Court appears to have overlooked some relevant aspects. At least one decision of high authority was sadly missed by it.

12. It may be noted that the enactment in question is based on an International Convention. The preamble to the Act loudly proclaims that the Act was, among other things, 'to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances..."

13. That is not without significance. The fact remains that an International Convention is the spring board for the national legislation; a duty to have the interpretation in tune with international approaches to the problem arises in such circumstances.

14. The term "International Convention" is defined in S.2(ix) as including the "Single Convention on Narcotic Drugs, 1961". Article 28 of the Convention can be usefully extracted here:

1. "If a party permits the cultivation of cannabis plant for production of cannabis or cannabis resin, it all apply there the system of controls as provided in Art.23 respecting the control of opium poppy.

2. This Convention shall not apply to the cultivation of cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.

3. The parties shall adopt such measures as are necessary to prevent illicit traffic in, the leaves of the cannabis plant."

15. It may be noticed that the Convention employs distinct words such as cannabis, cannabis plant and cannabis resin. A distinction carefully kept and maintained by the Convention cannot be permitted to be evaporated while undertaking a construction of the Act based on that very Convention."

16. There does not appear to be any universal concept regarding the word 'cannabis'. The corresponding English enactment -the Misuse of Drugs Act, 1971 - defines the term 'cannabis' "as made from the leaves of the cannabis sativa plant", (emphasis supplied), Cannabis (hemp) on the other hand refers to 'charas' and that in turn is 'the separated resin.... obtained from the cannabis plant'. (emphasis supplied). 'Crime in England' contains a passage in Page 31 on 'Cannabis', giving some general information:

"Cannabis is made from the leaves of the Cannabis Sativa plant grown widely around the world. Herbal cannabis, or 'grass', is a preparation of the dried plant material. The plant can be processed into cannabis oil, rarely found in the U.K., Hashish, or 'hash' is resin scraped from the plant and made into blocks; it is the most common form in the U.K."

17. Are the courts to give minute attention to the differing parts of a plant from which cannabis is made? The answer appears to be in the affirmative, according to the indications available from the decision of the House of Lords, in D.P.P. v. Goodchild, 1978 All. E.R. 161.

Lord Diplock, has explained with comforting lucidity everything relevant in the context. The botany of Cannabis Sativa plant, and the pharmacognosy of the finished product cannabis resin have been discussed in a cute condensed form.

18. Cannabis Sativa is one of the oldest cultivated plants in Asia. It grows to a height of 4 feet to 16 feet and thrives in tropical and temperate climates. The seeds serve as cattlefood and are also used in the manufacture of soap. The plant contains hallucinogenic ingredients. That makes the difference for the addicts. The hallucinogenic ingredients are found in the resin secreted in the pairs of trichomes on the leaves.

19. Cannabinol derivatives are many and varied. THC - Tetra-hydro Carbinol - is a potent and important derivative. The resin is extracted by brushing off the part of the plant. The flowering and fruiting part contains most of cannabis. The significance on (lie emphasis of the part of the plant producing hallucination, cannot therefore be missed.

20. The accused before the court in the case which went upto the House of Lords was found to be in possession of 1/4 lb. leaf and stalk of cannabis plant. They were charged with offences punishable under S.37(1) of the Act. The schedule to the Act contained 120 drugs, mostly synthetic. Class A drugs roped in poppy straw. Cannabis, and Cannabis resin fell within Class B. The punishment in respect of Class B drugs was comparatively light; only five years of imprisonment. Cannabinol and Cannabinol derivatives were in Class A, and punishment for their possession was seven years.

21. The accused was not found to be in possession of flowering or fruiting tops. A qualitative analysis however, revealed the presence of some THC in the leaf and stalk. The Trial Court held that the accused was in possession of cannabis, and punished him on that basis. It was also found that he was in possession of cannabis derivatives that had been identified as a constituent of the material. The High Court allowed the appeal and held that the leaf and the stalk did not come within the definition of cannabis. This view was upheld by the House of Lords as well.

22. That was not to the end of the sufferings of the accused. He was charged with possession of a 'cannabinol derivative'. The Trial Court held him guilty, as the cannabis leaf and stalk in his possession, on analysis, was found to contain traces of THC. His appeal to the Court of Appeal was not successful, this time. He went to the House of Lords.

23. The question was found to be of general public importance; and was posed:

"Whether.......a person in possession of some leaves and stalk only from a plant or plants of the genus cannabis may ... thereby be in possession of a cannabinol derivative naturally contained in those leaves......"

24. Lord Diplock started the discussion by reminding the House that 'the 1971 Act is a criminal statute'. It was also recalled that some listed drugs although they can be synthesised, also occur in a natural state in plants. The idea was demonstrated with reference to morphine. Lord Diplock was clear in his thoughts; and he expressed them forcefully;

"It would not in my view be a natural use of language to say, for instance that a person was in possession of morphine when what he really had was opium poppy-straw from which whatever morphine content there might be in it had not yet been separated; nor do 1 think it would be an apt use of language to describe poppy-straw as a preparation or other product containing morphine Since this expression is inappropriate to something found in nature as distinct from something that is man-made."

25. He noticed a similar indication in Cocaine and Coco leaf.

Having made those observations, he expressed his prima facie view thus:

"So prima facie one would not suppose that possession of naturally occurring leaf and stalk of the plant cannabis sativa of which a cannabinol derivative, THC, was an unseperated constituent could be charged under the 1971 Act as possession of a "cannabinol derivative'.

26. The argument to the contrary was thereafter adverted to and dealt with. This is of greater relevance in this context:

'The argument to the contrary depends on the words of exception .... These, it is suggested, give rise to an inference, that but for the exception cannabinol and cannabinol derivatives...........would have fallen within the definition.....'

27. The House unhesitatingly repelled the contention observing:

'My Lords such inference as to the ambit of enacting words that one, since the proviso or exception may have been inserted per majorem cautelam.'

and later declaring:

"I would construe the 1971 Act in such a way as to avoid this irrational and unjust result. A man should not be goaled on an ambiguity."

28. The approach of the House of Lords, it is submitted should have commended itself for acceptance by the High Court. In any view of the matter, a helpful discussion of a cognate issue by an acclaimed authority, should not have escaped the Judicial gaze of the High Court.

29. The reasoning of making out a crime by implication, based on the tapering wording of S.10 is also tenuous.

30. Section 10 — the Rule making power of the State Government.— has to be properly understood from a correct perspective of the statutory scheme.

31. The Act deals with one of the most important aspects of our National life. The withering away of the Flowers of Life - the youth of this country-by contact with and consumption of this deadly poison is a distressing daily sight. These drugs act like a iron hand in velvet glove. They destroy the present generation and paralyse the future ones too.

The most potent of the drugs are dealt with greater seriousness. This situation, therefore does not permit imposition of one of the harshest penalties on a citizen. Punishment is impermissible on the basis of laws having pythan ambiguity.

32. The rule making power is shared between the Centre and the State. Even a casual glance and comparison of the two sections will reveal that the State Government are invested with Rule-making power concerning the less dangerous drugs. Cannabis (Hemp) is thus included as item 2 in the Schedule of the Central Rules.

33. The State Government does not possess power to make a rule respecting a drug to be dealt with by the Central Government. This idea is exemplified ex abundanda cautela; while drafting S 14 Charas, one among the categories coming under the definition of Cannabis (Hemp) was thus excluded from the Rule-making power of the State.

The reasoning of the High Court based on the heading prefixed to S.14 is not a sound one. It is well settled that they 'cannot control the plain words of the provision' (See Frick lndia Ltd. v. Union of India, AIR 1990 SC 689).

35. Even assuming that there is some ambiguity, in the language of the Act, the benefit should go to the accused. The principle is too deeply encrusted in our jurisprudence to be blasted by a single strike. There is a massive collection of the case law at page 43 of Gour's "The Penal Law of India" 10th Edn.

36. Many of the decided cases assume that a mere presence of some 'ingredients of cannabis sativa is sufficient to bring the substance within the meaning of 'cannabis'. An authoritative decision can be awaited.

37. Balbir Singh's case (supra) has dwelt at length with the harshness of the statute and the necessity for the Court to modulate the approach of the Court to protect the precious rights of the citizen. In RR v. Crown court (1989 (3) All. E.R. 673) the court observed how the Drug Trafficking Act made draconion in roads into ordinary principles and emphasised the necessity for a balancing ofdifferentconsiderations.lt is significant that the Court also made a reference to Human Rights. Their influence and impact in the interpretational process is easily realised these days.