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.

*The Importance of being a Lawyer

 

By T.P. Kelu Nambiar, B.A., M.L., Senior Advocate, High Court, Ernakulam)

 

The topic, namely 'The Importance of being a Lawyer', is abounding. Therefore I propose to deliver this address with style and substance; not as ramble reflections. I shall endeavour to designate the locus of the problems facing the profession of law. Remember, we are all far more capable than we ever imagine. I shall today tell you what you want to know, not only what you want to hear, about the role of lawyers, their duties, manner of functions, advocacy and accountability of the Bar and the Bench.

 

The legal profession is admirable. Ours is said to be a learned profession. We learn the law from books but we cannot learn men from books or briefs. It is said that silence is learnt from the talkative; toleration from the intolerant; kindness from the unkind. And learning is most requisite which unlearns evil. The learning and knowledge which we have are, at the most, but little compared with that of which we are ignorant. Therefore, a lawyer of today should learn a lot, apart from law books. He should be a man of multiple excellences. It is said dial a lawyer who has not studied economics and sociology is apt to become a public enemy. Leadership and learning are indispensable to each other. My idea in skirting in this strain is to impress upon you the importance of the role of really learned lawyers in public life. We should disabuse the feeling, inveterate though, that the trouble with law and society is lawyers. Benjamin Franklin had to say that a countryman between two lawyers is like a fish between two cats.

 

Our profession, said Daniel Webster, is good if practised in the spirit of it; it is damnable fraud and inequity, when its true spirit is supplied by a spirit of mischief-making and money getting; the love of fame is extinguished; every ardent wish for knowledge repressed; conscience put in jeopardy; and the best feelings of the heart indurated by the mean, money-catching, abominable practices which cover with disgrace some of the modem practitioners of law. The Preamble to Standards of Professional Conduct and Etiquette' in the Bar Council of India Rules, exhorts:"An Advocate shall, at all times, comport himself in a manner benefitting his status as an officer of court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate". It is the duty of the lawyers to give voice to silences, clarification to ambiguities and content to omissions. While carrying on the duties of our profession, we should ever remember that law is made for man, and not man for law. The State today exercises a degree of control over the individual far exceeding in scope and intensity, that of any other period of history, as noted and discussed by W. Friedmann. There is an interlocking of the State functions and the human factor. It is the duty of the lawyers to stand guard for the essential foundation of liberty, namely 'rule of law' or 'rule under law', and bid challenge to 'rule by law' which can be the most efficient instrument in the enforcement of tyrannical rule. And it is here that the lawyer should emerge as a protector. And it is here that a lawyer's responsibility lies. And it is here that the legal profession has to play its role with courage and conscience. Responsibility walks hand in hand with capacity and courage. And courage consists in seeing and conquering danger. Faith is courage. And faith knows no disappointment, said Gandhiji. We would strive for a brave, bold, intrepid, daughty and confident bar. We should never indulge in competitive servility and sycophancy. Hardwork will always emerge triumphant. You should start moving and performing, not merely surviving. You will have to make stepping stones out of stumbling blocks, and show your relevance. Throw your hat over the fence; then you will sure climb the fence.

 

Just as child is the father of man, the lawyer is the father of the judiciary. An independent bar is the essential pre-requisite of an enlightened judicial set up, and the word 'independence' is united to the ideas of dignity and virtue, says Jeramy Bentham.

 

The law, as a vocation, is something altogether more dynamic and specialised. Education in the law must be the achievement of a skill, and, with it, the development of brain and personality, the total enrichment of the mind. The legal mind can only grow through legal thinking, just as the art of swimming is developed through plunging into water. One who plunges in medias res, is at the heart of the subject. The best legal history is the case law, and great jurists and legal historians have adopted that approach.

 

According to Disraeli, himself a master of argument, an Advocate is one who is able to "illustrate the obvious, elaborate the self-evident, expatriate on the common place". The aim of advocacy is the persuading or convincing of an audience to agreement with a contention about facts or with a programme of conduct. This calls for perception, and clarity, patience and determination in the presentation of the essential details with emphasis, order and significance, using common sense especially, remembering the African Proverb: "There are 40 kinds of lunacy, but only one kind of common sense". An orator convinces his followers, not his opponents. A lawyer, by forensic casuistry, convinces his opponents, not his followers.

 

The Advocate, in order to be successful in his plea, has himself to convince. Argument ,is secondary to facts. Evidence is the mass of fact out of which argument is framed, and without which advocacy is an empty appeal for sympathy. Advocacy is not a sermon on the battlefield.

 

A man cannot see his back, and so also he will not be able to detect his own faults. This is true of Judges as of lawyers. We require Judges and lawyers with audited mind. According to J.A. Strahan (in his book 'The Bench and Bar of England'): "To the lawman every judge is equally a judge; but to the lawyer there are judges and judges. There are some judges whose rulings on any moot point of law is taken as settling it forever; there are others who, to use Lord Ellenborough's phrase, are fit only to rule copybooks.....Owen Meredith once said that the King could accomplish things beyond the power of Heaven itself; and, when asked for example, he stated that the King, by making her husband a knight, had made a certain woman a lady. In the same way the King, by making him a judge, can make "an unlearned lawyer an authority on law .... Lord Westbury, in his sardonic way, once said that persons bearing a certain name well known in the legal world, succeeded to places on the Bench per stirpes and not per capita. To a certain extent that was true, since few of that name ever won much reputation at the Bar. The qualities required to gain success as a judge and as an advocate are essentially different". The attempt should be to upgrade the quality of persons connected with the legal profession and the judiciary.

 

Justice Pandian, in the decision of the Supreme Court relating to appointment and ttmsfer on Judges (Supreme Court Advocates-on-Record Association v. Union of India - 1993 (4) SCC 441) posed questions on 'Solomon's throne', 'Solomon's House' and 'Kingdom of Solomon' and answered the questions in favour of Solomon's sovereignty.

 

Let us pose the question: Is Solomon accountable to anybody. If accountable to whom.

 

Let me answer the question first: Solomon is accountable; and the accountability is to the people of India.

 

I read the Constitutional Oath to be made by the Indian Solomon:

 

"I, A.B., having been appointed a Judge of the High Court of (X) do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws".

 

Therefore the Judge swears to bear true faith and allegiance to the Constitution of India, and to uphold the Constitution. The Constitution was adopted, enacted and given unto themselves by the people of India. The Preamble to the Constitution of India reads:

 

"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

 

JUSTICE, social, economic and political;

 

LIBERTY of thought, expression, belief, faith and worship;

 

EQUALITY of status and of opportunity; and to promote among them all;

 

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

 

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT ENACT AND GIVE TO OURSELVES THIS CONSTITUTION'.

 

Therefore, judicial power, though not accountable to the Executive or to the Parliament, must be answerable to the People. As Justice V.R. Krishnalyer said: "The judiciary derives its power under the Constitution, not over it".

 

Horold Laski had to say: "Obviously, therefore, the men who are to make justice in the courts, the way in which they are to perform their function, the methods by which they are to be chosen, the terms upon which they shall hold power, these, and their related problems, lie at the heart of political philosophy. When we know how a nation-State dispenses justice we know with some exactness the moral character to which it can pretend".

 

The justicing system is too serious a business; and it is better not to leave it to the Judges alone. The Bench and the Bar must be mutually accountable to the dispensation of the system.

 

The judgment of justices should be the judgment of the Constitution. I say with the belief that I am not committing indiscretion that a judge is not a bestower of knowledge. He is only one presiding over a cause, and lawyers unravel the factual and legal aspects of the cause for him to render decision. And mutual respect is the order of the right relationship between a judge and a lawyer. It is not the master-servant relationship. And remember, the invisible and intangible law is not the exclusive preserve of judges. Dignity of position adds to dignity of character. This is true of judges and lawyers alike.

 

The legal profession today is on the hit list of the public. Therefore lawyers should avoid even the appearance of professional impropriety; and conduct themselves so as to reflect credit on the legal profession and to inspire the confidence, respect and trust of their clients and of the public. A lawyer should be as a clean as the whistle.

 

Advocacy exists for nobler uses than to construct fictions or scatter calumnies. An Advocate should first tame his mind, as an untamed mind is dangerous to advocacy. An insolvent mind is an insolvent mind. You cannot win a cause by taking a dose of ephedrine; you can possibly win a race or game. That winning and persuasive faculty, said Bishop Sanderson (in Ad Magistratum) is an excellent gift of God; and the good blessing of God be upon the heads of all those that use their eloquence aright, and employ their talent in that kind for advancement of justice. Ours is a profession which ought to be above suspicion and reproach. Each member of the profession ought not only to be impressed with patient devotion in the study of the first of human sciences, - the law, but dwell upon the thought that he belongs to an order in which have been enrolled the names of some of not only most eloquent, but the wisest and most virtuous of men. Try to plunder the past glory of the profession.

 

The categorisation of lawyers as senior and junior can at best be trade marks. That has nothing to do with professional capacity and purity. Be respectful of seniority, but be not be overwhelmed by it. Mind your profession; you will win the jackpot. Once you join the bar, you will be nobody' s case; you will have to look after yourself, unless you enter with an impressive inheritance. You cannot look upon the judge as your care-taker. You do not constantly contemplate the form of a judge as you do of God.

 

Sir Edward Clarke, K.C., a famous member of the English Bar, once said that success in the profession depended on three factors. The first was to have an infinite capacity for hard work; the second was to have no money; and the third was to be very much in love; not, of course, carnal, but professional. A capacity for hard work combined with such powerful incentives will no doubt carry one far towards success, of course, with other qualifications necessary to attain it. In his Foreword to the second edition of Rao Bahadur K.V. Krishnaswami Aiyar' s book of Professional Conduct and Advocacy, Sir Maurice Gwyer, Chief Justice of India, (at that time, the Federal Court) deplored the lowering of standards of the profession. Even in those days (in 1945), it was considered that one cause for the fall in standards was the great over-crowding of the profession and the, struggle for existence among its less fortunate members, since the weaker brethren are thereby exposed to temptations which they are not always able to resist. This, the learned Chief Justice said, is a matter which affects the public as well as the profession itself, for any diminution in the respect felt for lawyers as a whole must affect prejudicially the whole administration of justice. The learned Chief Justice ventured the following suggestion; "It is therefore worthwhile to consider whether there is any effective means of preventing these excessive numbers. I think that all would regret any artificial restriction on entry into the profession which might have the effect of making it a preserve for the well-to-do and shut out young men of small means but great promise. I have, however, often thought that it is too easy at the present time to become a lawyer and that the standards of law examinations are in many cases far too low. To raise those standards and thus to ensure that only properly equipped young men are able to enter the profession would, as it seems to me, be not only a legitimate but an extremely beneficial step. Nor do I think the teaching of law in India is all that it might be, and I should like to see some united effort among the different law schools with a view to its improvement generally". This remains the situation even after more than fifty years since Sir. Maurice Gwyer had expressed his views.

 

Let me make a re-run of a passage in a recent address delivered by me:

 

"An Advocate has myriad duties towards his clients. A client engages a lawyer for his advocacy, not for his judgment. A lawyer is to do for his client all that his client might fairly do for himself, if he could. This is what Dr. Johnson said. According to Cockburn C.J., an Advocate ought to uphold the interests of his clients per fas, but not per nefas. Dr. Johnson was right when he said that the justice or injustice of the cause is to be decided by the Judge. Charles I was wrong when he said he would not have become a lawyer, because "I cannot defend a bad, nor yield in a good cause". An Advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he professes to practise at a fee consistent with his standing at the B at and the nature of the case. Special circumstances may justify his refusal to accept a particular brief. It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. The duty of an Advocate to keep accounts of the client's money, is a duty of high order, breach of which would entail proceedings for professional misconduct".

 

An Advocate has a prior, primary, perpetual and paramount retainer on behalf of truth and justice. A bad law can be set right by amendment; but the defect of a weak character cannot be cured by amendment. The profession of law is a great profession. A lawyer should avoid even the appearance of professional impropriety.

 

It would be tedious to enumerate the duties, rights, privileges and obligations of Advocates. It will be sufficient to state generally that the Advocates Act and the Bar Council of India Rules lay down provisions to regulate the duties and preserve the privileges of the order of Advocates, such as admission and enrolment of Advocates, right to practise, conduct of Advocates, standards of legal education, standards of professional conduct and etiquette, disciplinary proceedings against Advocates, duty to court, duty to clients, duty to colleagues, duty to render legal aid, restrictions on other employment etc.

 

Lord Hailsham, in his 'Sparrow's Flight', says that he has never ceased his sense of loyalty to the profession to which he belonged and that he has never ceased, to the best of his ability, to maintain its traditions and promote its interests; and adds that he believed sincerely that we are insufficiently aware of the extent that our own professionals, whether Judges or Advocates, show a shining example to the rest of the world.

 

In the admirable work of Meyer, (Esprit, Origin, et Progress des Institutions Judiciaries), in which he has investigated the origin and progress of judicial institutions in Europe, he strongly enforces the following view of the relation subsisting between the Advocate and the public: "He who has devoted himself to that profession which is as difficult as it is honourable; who receives in his chamber the most confidential communications; who directs by his counsel those who come to ask his advice and listen to him as though he were an oracle; who has the conduct of causes of the most important; who constitutes himself the organ of those who claim the most sacred rights, or the defender of those who find themselves attacked in their persons, their honour, or their fortune; who brings forward and gives efficacy to their demand, or repels the charges brought against them, (disencumbering the load of learning); he, I say, who does all these, must necessarily require the support of the public. By his knowledge, his talents, his morality, he ought to endeavour to win the confidence and good will of his fellow citizens". The great feature of the legal profession is that it is a republic open to all where the promise of reward is held out without fear or favour to such as have industry and ability; and, as the prizes that await the successful are magnificent, no class or rank disdains to compete for them. Nor can it be unimportant to the State to inform itself what are the principles of a body of men, without whose aid the laws of their country cannot be properly administered or enforced. That is the importance of being a lawyer.

 

Let us never forget our high vocation as ministers of justice and interpreters of the law. The lawyer holds a prominent place. Every lawyer should try to be a Hortensius, who of all the Advocates of antiquity, said Cicero, had given himself up most exclusively to that profession. Try to become an able lawyer. But do not carry negative baggage. Adjust your performance before the different courts, as you do with grass court, hard court, or clay court.

 

I stop here; and leave you to ponder over the great profession on the lines of bringing credit to law and credibility to the legal profession, remembering 'justice is never deaf, though blind'.

 

I am thankful to the providers of this opportunity and the tolerance of this evening's listeners.

___________________________________________________________________

Foot Note

* Address delivered on 21.8.1995, at the High Court, to Junior Lawyers participating in the Legal Workshop, sponsored by the Indian Law Institute and the Kerala High Court Advocates Association.

Needs of Superannuation

 

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

 

It is true that the industrial enactment purports to console the 'sickness' between employees and employers. But this statement raises a question. Does it really do so?

 

Answer would neither be 'yes' nor 'no'. It is somewhere in between.

 

I think dial the labour law is deficient in retirement provisions.

 

Present laws hesitate to demark any line on the age of the workmcn.lt is left to the employer as well as employees to decide the date of superannuation of the employees working in the particular establishment. The law stretches its right hand to the employee with a note, 'work till you are satisfied' at the same lime stretching its left hand to the employer holding out 'save yourself. It is the epitome of the industrial law prevailing in this country.

 

Grey matter helped the employers. They brought to bed of the dale of 'death' along with the appointment order. Someone chooses the standing orders for their survival and as defence. In such a situation the position is belter for those who are espoused to take such weapons: The industrial establishment having crores of investment arc particular about dealing with the labour problems eventhough the bade unions arc more offensive. They are big shots. Big shots are likely to be big wigs.

 

One-horse-carts are not rare on Indian Roads. Many of the establishments are infirm or incapable of framing their own standing orders. The condition of superannuation cannot be imposed up on the employees at the time of appointment since there need not always be the practice of issuance of appointment orders.

 

If a dispute sets in a small establishment normally it would end up in the court of law. Passing an award by the proper forum will not change the situation much. Let me illustrate my speculation as follows: "An award has been passed by the Labour Court directing the employer to reinstate the workmen with back wages. Employee was 58 years old and refused to work properly. That was why he was dismissed from service earlier. He is not willing to retire from service for the time being. The employer knows the indomitable strength of the union to which he belongs. In such a case the employer has no option but to pray for his good mindedness. According to him it is Hobbson's Choice'.

 

What is the remedial measure to overcome this is dead end. The ball is at the court of the legislature and of the judiciary. But it does not mean that the task is easy not involving any risk. The retiral age was discussed by the Supreme Court may times. On several occasion the Supreme Court held so, as “the question (age of superannuation) would always depend on a proper assessment of the relevant factor which may conceivably vary from case to case (1960 II LLJ. 716 (SC) Gajendragadkar observed in Guest, Keen, William (P) v. V.P.J. Sterling (1959 (II) LLJ 405 SC) that the important factors that industrial adjudication has to take into consideration for fixing the age of superannuation are;

 

(a) nature of the work assigned to the employees in the case of their employment.

(b) nature of the wage structure paid to them.

(c) retirement benefits and other amenities available to them.

(d) character of the climate where the employees work.

(e) the age of superannuation fixed in comparable industries in the same region.

(f) (he practice prevailing in the industries in the past in the matter of retiring its employees.

 

Again in lmperial Chemical Industries v. The Workmen (I960 II LLJ 716) Supreme Court observed that no hard and fast rule can be laid down in fixing the age of retirement. It is further held that proper assessment of the relevant factor which may vary from case to case.

 

What is the apt age for retirement of a workman? Consensus between employer and employee is yet to arrive. Our courts also opined different ages for different workmen, varying from 55 to 60 i.e. 55, 58 or 60. In G.M. Talang v. Shaw Wallace & Co. (1964 II LLJ 644) and the British Paints v. The Workmen (1966 I LLJ 407) the apex court was inclined to hold the age of superannuation to be at an age of 60 years. In the Workmen v. Balmer Lawrie (1964 I LLJ 380) the Court held "we feel that the time has now come for increasing the age of retirement in the case of clerical staff and the subordinate staff generally from 55 to 58. In Associated Power Co. v. The Workmen (1964 LLJ 743) the Supreme Court held the view that the age of retirement of the workmen al58 years was reasonable. In Jeevan Lal v. The Workmen, 1961 (I) LLJ 517 (SC) the observation of the court is that the present day tendency to fix the age of superannuation generally at 60 years and unless the tribunal feels that the work of the operatives is particularly ardous or hazardous where workmen may lose efficiency earlier. Same view was held again in Hindustan Times V. The Workmen (1963 I LLJ 108).

 

Considering the judicial verdict and opinion of the jurist flat retirement age system is not practicable. So, after considering the relevant factors pertaining to employment a statutory provision can be introduced. On any account such an amendment will not affect the nature and purpose of labour law.

Compensation to the Victims of Crime :

Indian Law and U.N. Resolutions

 

(By Justice B.N. Patnaik, Judge, High Court of Kerala)

 

Victimology, as a separate discipline deals with the study of the problems of victims of crimes and their right to claim compensation which, includes rehabilitation and restitution, from the offender or the authorities of the State. The traditional concept of criminal justice administration which connotes, legislation of penal law, enforcement of the law and detection of crime, trial of offenders and execution of sentence passed by a court of law does not comprehend the duty of the State to alleviate the suffering of the innocent victims and/or their families for the loss of life, liberty, property and reputation and for bodily or mental injury in consequence of a crime.

 

In a large number of cases, untold misery to the victims and their family members ensures in the event of murder of a sole earning member of the family and destruction of dwelling house and property by arson and loot, permanent disability resulting from injury, social stigma and personal trauma on account of sexual assault, loss of property due to the offences of cheating, robbery, decoity and theft. In many cases, the victims are left in the lurch.

 

The expenditure incurred for investigation and trial of a sessions case is approximately Rs.16,000/- and for maintaining a prisoner convicted of an offence is about Rs.3,550/- per annum. It is calculated in the following manner:

 

On an average, the duration of pendency of a sessions case, from the initial stage of investigation till the culmination of trial, is one year. But in effect, the total time devoted to the investigation and trial is 360 hours (15 days). Salary and allowance of investigating staff, consisting of two gazetted officers and three non gazetted officials and the expert, salary and allowances of the Magistrate, Judge, two Clerks, one Stenographer, two peons and one Process Server come to vRs.10,800/-, at the rate of Rs.30 per hour. Witness expenses amount to Rs.500/-. Fees of the Prosecutor and his staff come to Rs.3,600/-. Miscellaneous expenses like transport of accused/convict, stationery and establishment are Rs.1,000/- (Total Rs.15,900/- rounded toRs.16,000/-).

 

Expenses of diet, clothing, other amenities like medical aid, personal hygiene and occasional entertainment of a prisoner in a year amount to Rs.3,650/-, at the rate of Rs.10/- per day. Maintenance cost of Jail building and its premises, including water supply, lighting charges, security and sanitation; pay and allowance of Jail and Welfare Authorities, stationery and office expenses, all taken together per annum for one prisoner can be assessed at Rs.500/-. The income derived from the labour of a prisoner is Rs.600/- per annum. (Total - Rs.4150/- less Rs.600/-   = Rs.3,550/-).

 

It is seen that about 5% of the State revenue is spent for criminal justice administration.

 

It is imperative for the State to incur expenditure to manage the various departments of law enforcing agencies in order to maintain peace and tranquility in the society, and to prevent the unlawful activities of anti-social elements. At the same time, the duty of a welfare State to devise ways and means to bring solace to the hapless victim by way of payment of compensation on humanitarian grounds is no less important. It will give some consolation to the distressed victim.

 

The necessity of paying compensation to the victims of crime has also engaged the attention of the United Nations. The 7th United Nations Congress on Prevention of Crime and Treatment of Offenders, came out with a declarataion of basic principles of Justice of Victims of Crime and Abuse of Power, which was later adopted by the U.N. General Assembly. In the declaration, the U.N. defined the "Victims of Crime" as follows:

 

"1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power.

 

2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

 

3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability."

 

The U.N. Social Council's draft "Guidelines for Measures on behalf of Victims of Crime and Abuses of Power" laid down the types of harm, injury, loss or damage caused by wrongful conduct. It is as follows:

 

"The loss of life or of support, impairment of health, including physical or psychological injury, pain and suffering both physical and mental, loss of liberty, loss of income or livelihood, loss of property or damage to it which is not subject to restitution and deprivation of the use of property. Due account must also be taken of the special damages or expenses and costs reasonably incurred by the victim or where appropriate, by the victim’s family, dependants or heirs, which resulted from victimisation, including medical costs, transportation costs, funeral and burial costs, legal costs, treatment and rehabilitation costs, and similar and related costs and expenses".

 

The victims in general may be broadly classified into twelve categories. They are:-

 

1. Victims of war.

 

2. Victims of accidents that occur

 

(a) on Road, (b) on Railways (c) on the Aircraft, (c.) on Sea and (e) in the workplace.

 

3. Victims of abuse of power by lawful authority :-

(a) Custodial death,

(b) Death due to firing,

(c) Groundless arrest and detention;

(d) Unnecessary harassment

 

4. Victims of rape.

 

5. Victims of criminal conspiracy, offences of giving or fabricating false evidence, fabricating false documents or forgery of records, valuable documents, certificates or causing disappearance of evidence by way of destruction or concealment of the documents, fraudulent acts with the intention of causing bodily or mental harm to a person, murder, miscarriage, hurt, wrongful restraint and wrongful confinement, assault, use of criminal force, kidnapping, abduction, forced labour, unnatural offence, theft, extortion, robbery and dacoity, cheating, mischief, arson, criminal trespass, adultery, bigamy, fraudulent marriage, dowry torture and death, defamation, criminal intimidation, insult and annoyance.

 

6. Victims of offences relating to manufacture and sale of adulterated, substandard and prohibited drugs, liquor and food.

 

7. Victims of offences of smuggling, blackmarketing, unfair trade practice and evasion of tax.

 

8. Victims of offences committed by public servants, such as negligence and inefficiency in discharging their duties, corruption, bribery and misappropriation of public funds.

 

9. Victims of environmental pollution and wanton destruction of flora and fauna, and public nuisance.

 

10. Victims of offences committed in the election.

 

11. Victims who are also offenders as perpetrators of crimes such as drunkenness, consumption of narcotic drugs, gambling, attempt to commit suicide and prostitution, which are otherwise known as victimless crimes.

 

12. Victims who create a compelling situation in which the offender reacts violently by committing a criminal act. Sometimes the victim provokes the offender to commit the crime. Victims of affray, free fight and rioting may also be included in this category.

 

The necessity of compensating the victims of war was declared in the draft guidelines for Measures on behalf of Victims of Crime and Abuse of Power by the United Nations Economic and Social Council. The treaties following both the First and Second World Wars obliged the defeated powers to pay full compensation with respect to war crimes and crimes against humanity committed by their armed forces on the territories of the Allied and Associated powers.

 

The Personal Injuries (Emergency Provisions) Act, 1962, and the Personal Injuries (Compensation Insurance) Act, 1963 envisage that the Central Government has the power to make schemes for the grant of relief in respect of personal injuries sustained during the periods of emergency that were declared on 26.10.1962 and 3.12.1971. Payment by way of allowance, shall be payable only where the injury or disease causes serious and prolonged or permanent disablement of death as a result of war.

 

Victims of accidents are those who sustain bodily injuries causing either permanent or temporary disability and the legal representatives of deceased who dies, as a result of it. It may arise out of the use of a motor vehicle, Railway train, Aircraft, a Ship or while operating a machine in a factory.

 

Sections 140, 161 and 166 of the Motor Vehicles Act 1988 entitle a victim of motor accident to prefer a claim for compensation before a duly constituted Motor Accidents Claims Tribunal. Provision has also been made empowering the Government to establish and administer a solatium fund out of which compensation can be paid in cases of death or grievous injury resulting in hit and run cases where the persons guilty of causing the accident remain untraced.

 

S.124 and the rules framed under S.129 of the Indian Railways Act 1989 provide for payment of compensation to the Railway accident victims.

 

Under S.5 of the Carriage By Air Act, 1972, persons who are carried by aircraft are entitled to claim compensation in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took pi ace on board aircraft or in the course of any of the operations of embarking or disembarking. Under Regulation No.5 of the Indian Airlines Non-International Carriage (Passenger and Baggage) Regulations, 1980, the Indian Airlines Corporation is liable for damage sustained in such event. Under S.346 of the Merchant Shipping Act, 1958 the owners of the ship shall be liable to pay compensation whenever loss of life or personal injuries are suffered by any person on board a ship owing to the fault of that ship and of any other ship. Under Sections 3 and 10A of the Workmen's Compensation Act, 1923, a workman is entitled to claim compensation in the event of death or bodily injury caused to a workman in the course of his employment or while discharging his duties as a workman.

 

The Government of India enacted Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 to settle the claim of compensation for those who suffered due to leakage of lethal gas from the Union Carbide Corporation at Bhopal. On the night of December 2, 1984 there was massive escape of lethal gas from the MIC storage tank at Bhopal plant of the Union Carbide (I) Ltd. (UCIL) as a result of which 4000 human lives were lost and tens of thousands of citizens of Bhopal were physically affected. Action was brought up by the Union of India as parens patriae before the District Court, Bhopal pursuant to the statutory enablement in that behalf claiming 3.3 billion dollars as compensation against the company. When an interlocutory matter pertaining to the interim compensation came up for hearing there was a court assisting settlement between the Union of India and the Union Carbide Corporation (UCC - owning 50.99 per cent shareholdings of UCIL). Under this settlement a sum of US Dollars 470 million was agreed to be paid by the UCC to the Union of India in full settlement of all the claims of all victims of the gas leak against the UCC.

 

In a number of cases, the Supreme Court has laid down sound guidelines with regard to assessment of just compensation to be paid to the victims of accidents. Though in some hard cases, either no compensation was paid or inadequate compensation was paid, yet it is generally found that the courts and tribunals have been liberally granting compensation to such victims in accordance with the observations made by the Supreme Court.

 

Thus, the victims of war and accidents have the right to claim compensation under the statute. But there is no such right of other victims, though compensation has been awarded in a few cases, at the discretion of the court.

 

In Kasturi Lai v. State of U.P. (AIR 1965 SC 1039), it was held that the State is immune from liability to pay damage to an injured, if a tortious acts committed by public servants in course of employment and in exercise of statutory functions delegated to them by the Government. It is observed that there is a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not refer able to the delegation of any sovereign powers. If the tortious act is committed in discharge of statutory functions based on the delegation of sovereign powers of the State, then the action for damages will not lie.

 

But, later the Supreme Court in Nilabati Behera v. State of Orissa (AIR 1993 SC 1960) held that the concept of sovereign immunity is not applicable to the cases of violation of fundamental rights. It is observed as follows:

 

"A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the constitution is an acknowledged remedy for enforcement and protection of such rights, and such claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Arts.32 and 226 of the Constitution.

 

In Sebastian M. Hongrayv. Union of India.(AIR 1984 SC 1026), two persons were taken to the Phungrei camp by the jawans of 21st Sikh Regiment on March 10,1982. In a writ of habeas corpus, the Court directed the concerned authorities to produce those two persons, who were reported to be missing since then. The Government finally failed to do so. This was considered to be a case of death of persons while in custody of the lawful authority. The Supreme Court, in the circumstances, keeping in view the torture, the agony and the mental oppression through which the wives of the persons directed to be produced had to pass, instead of imposing a fine, directed that as a measure of exemplary costs a° is permissible in such cases, the respondents shall pay Rs.1 lakh to each of the aforementioned two women.

 

In Nilabati's case, a person was taken to custody by a police officer on 1.12.1987 at 8 A.M. for interrogation in connection with a crime and he was found dead the next day on the railway track near the Police Outpost without being released from custody. His death was unnatural, caused by multiple injuries sustained by him. In the absence of a plausible explanation by the police authorities and the State, consistent with their innocence, it was held that the obvious inference is that the fatal injuries were inflicted to him in police custody resulting in his death, for which the respondents are responsible and liable. The court accordingly, directed the State to pay a sum of Rs.1,50,000/- to the mother of the deceased and a further sum of Rs.10,000/- as costs within three months, by holding that it is a clear case for award of compensation to the petitioner for the custodial death of her son.

 

The Supreme Court, in State of M.P. v. Shyamsunder Trivedi (AIR 1995 SCC (Crl) 715), found that the victim died in police custody as a result of extensive beating given to him. The Sub Inspector of Police was sentenced to pay a fine of Rs.50,000/ - and other accused sentenced to pay Rs.20,000/- each and the entire amount of fine on realisation was directed to be paid to the heirs of the deceased. It was observed that torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity.

 

On 19th April, 1986, the Police personnel surrounded a gathering of 600 to 700 poor peasants and landless people mostly belonging to the backward classes, while holding a peaceful meeting within the compound of Gandhi Library in Arwal. Without any previous warning or any provocation on the part of the people who had so collected, the police opened fire as a result of which several people were injured and at last 21 persons including children died. The Court on a consideration of the facts and circumstances of the case, directed the State Government to pay a sum of Rs.20,000/- to the dependants of the deceased and Rs.5,000/- to every injured person. (See: Peoples' Union for Democratic Rights v. State of Bihar - AIR 1987 SC 355).

 

In Rudul Sah v. State of Bihar ((1983) 4 SCC 141), the Supreme Court found that the petitioner's prolonged detention in prison after his acquittal was wholly unjustified and illegal. It is said that Art.21 will be denuded of its significant content if the power of the Supreme Court were limited to passing orders of release from illegal detention. The only effective method open to the judiciary to prevent violation of that right and secure due compliance with the mandate of Art.21 is to mulct its violators in the payment of monetary compensation. The right to compensation is thus, some palliative for the unlawful acts of instrumentalities of the State which act in the name of public interest and which present for their protection the power of the State as a shield. Therefore, the State must repair the damage done by the officers to the petitioner's rights. The State was therefore, directed to pay a sum of Rs.30,000/- to the petitioner in addition to the sum of Rs.5,000/- already paid by it.

 

In Bhim Singh v. State of J & K (AIR 1986 SC 494), a member of the Legislative Assembly was arrested while en route to seat of Assembly and in consequence, the member was deprived of his constitutional rights to attend the Assembly Session and responsibility for arrest lay with higher echelons of the Government. The person was not produced before the Magistrate within the requisite period. Arrest was made with mischievous and malicious intent. There was, therefore, gross violation of his rights under Arts.21 and 22(2) of the constitution. It was held that it is a fit case for compensating the victim by awarding a compensation of Rs.50,000/-.

 

In Saheli v. Commissioner of Police, Delhi (AIR 1990 SC 513), a boy about 9 years old was beaten by the police in course of some investigation into a crime. He died as a result of the assault by a police officer. It was held that the State is liable to pay compensation, if death of a person occurs due to police atrocities. The State Government was directed to pay Rs.75,000/- as compensation to the mother of the victim.

 

In Inder Singh v. State of Punjab (1995 SCC (Crl.) 586), seven persons were abducted and eliminated by police authorities by misusing official machinery to wreak private vengeance. State as a token of its failure to enforce law and order to protect its citizens, was directed to pay Rs.1.50 lakhs to the legal representatives of each of the seven victims.

 

In Central Co-operative Consumers' Store Ltd. v. Labour Court ((1993) 3 SCC 214), it was found that apart from insult, humiliation and harassment thrust on a sales girl of a Co-operative Store, the manager removed her from service without giving a notice to her. Her removal from service was held to be illegal by all the courts. She had to light the litigation for a period of nearly 20 years. As a result, the Co-operative Society had to pay about Rs.three Lakhs to her for the thoughtless acts of its officers. The Supreme Court while asking the society to pay the amount directed to replenish itself and recover the amount from the personal salary of the officers of the Society.

 

In Radha Bai v. Union Territory of Pondicherry ((1995) 4 SCC 141), it was found that a woman officer of the Pondicherry Administration was harassed by the authorities. She was fighting for her cause for 17 years. The Supreme Court ordered the Government to pay her Rs.3 lakhs as compensation for loss of reputation and honour and the agony suffered in the long battle. The amount of compensation was directed to be paid jointly by the Union Territory of Pondicherry and the then Home Minister of the State.

 

In Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787), it was found that an allottee of a flat by the housing authority was entitled to get compensation for deficient service under the Consumer Protection Act, 1986 (as it stood prior to the amendment). Apart from awarding compensation, the Supreme Court held that the compensation should be recovered from the personnel of the concerned department or authority of the State.

 

In Delhi Domestic Working Women's Forum v. Union of India (1995 SCC (Crl) 7), some jawans raped six women while travelling in the train. Appropriate action was not taken against the culprits. In that context, the Supreme Court observed as follows:

 

"It is necessary to indicate the broad parameters in assisting the victims of rape.

 

(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with die criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.

 

(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

 

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

 

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

 

(5) The Advocate shall be appointed by the Court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained,

 

(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.

 

(7) It is necessary, having regard to the Directive Principles contained under Art.38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

 

(8) Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape."

 

In Gudalure M.J. Cherian v. Union of India (1995 SCC (Crl) 925), some miscreants broke open the window of the house where (he Sisters of a Missionary Society were staying. The miscreants committed rape on two sisters and others were assaulted. The Supreme Court directed the State to pay a sum of Rs.2,50,000/- as compensation to each of the two sisters on whom rape was committed by the assailants and a sum of Rs.1 lakhs each to other who were assaulted.

 

Compensation to the victims of abuse of power by lawful authorities and victims of rape was awarded in exercise of the jurisdiction under Art.32 of the Constitution of India for violation of the fundamental rights. Though damages could be claimed in a civil suit, yet it was found that there was violation of Fundamental Rights of the victims and as such they are entitled to the compensation. A civil suit for compensation entails heavy expenses besides the delay in getting the relief.

 

Sections 250,357,358, 359 of the Code of Criminal Procedure, 1973 and S.5 of the Probation of Offenders Act 1958 are some of the provisions relating to the power of the court to award compensation to the victims. S.250 empowers the court to award compensation for accusation without reasonable cause. S.357 empowers the court to direct the whole or any part of the line amount or if no sentence of fine is imposed, then a specified amount as compensation to the victims on conviction of the accused person. S.358 lays down that maximum amount of Rs.100 as compensation may be ordered to be paid by the Magistrate to persons who have been groundlessly arrested. Under S.359, the Court can order the accused to pay costs of the proceeding in a non-cognizable case, if the accused is convicted. Under S.456, the court has the power to restore possession of immovable property on conviction of the accused for criminal trespass. Under S.5 of the Probation of Offenders Act, the Court has the power to direct the offenders who have been released under the Act to pay compensation to the victims.

 

Under Ss.357 and 359 of the Code of Criminal Procedure and under S.5 of the Probation of Offenders Act, the victim is entitled to get compensation only in the event of the conviction of the offender. That apart, it is entirely at the discretion of the Court that a victim is given compensation. These provisions of the Code of Criminal Procedure and the Probation of Offenders Act are practically circumscribed by the conditions that the accused person must have been convicted, and the fine amount, if imposed is recoverable or the accused commits a probationable offence. These provisions do not create any right to claim compensation in favour of the victim. Moreover, if the convict is incapable of paying the fine or the compensation as ordered by the Court on grounds of poverty, the victim is deprived of getting it from any other source. Award of one hundred rupees under S.358 of the Code of Criminal Procedure can be hardly said to be any compensation.

 

In Hari Kishan & State of Haryana v. Sukhbir Singh (AIR 1988 SC 2127), the Supreme Court while considering the significance of S.357 of the Code of Criminal Procedure, said:

 

".....It is an important provision, but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences, but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender.... We therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way."

 

There are hundreds of cases in which the accused persons are convicted although offences are found to have been committed against some innocent persons. In such cases, the victims of crime are left without any remedy.

 

The prosecution must prove the complicity of the accused in the crime beyond any reasonable doubt. If the court finds that no offence is made out, according to law, there is no question of having a victim. Although the court finds that an offence has been committed against the aggrieved complainant, yet it may acquit or discharge the accused on one or more of these grounds, namely, (a) even though the case is true, yet no clue was found to implicate the accused in the crime during the investigation; (b) no sufficient legal evidence was available against the accused at the trial for holding him guilty; (c) the alleged criminal conduct of the accused could get protected under any of the exceptions provided in the Indian Penal Code, such as right of private defence of property and person, incapacity, insanity of the accused or lack of mens rea (guilty intention) etc., (d) in some cases, prior sanction for prosecution of certain authorities is required to prosecute an offender and for want of such sanction, the accused is entitled to acquittal, and (e) there may be a case of mistake of fact or mistaken identity of the accused person as the culprit. In such circumstances, it will be unjust to deny compensation to the victims who deserve to get the same, merely on the ground of acquittal of the accused even though a crime has been committed.

 

So far as the victims falling under categories 6 to 12 are concerned, they are the general public. So far as the persons who suffered on account of their own illegal conduct, such as victimless crimes are concerned, steps are usually taken by the State to reform and rehabilitate them. If compensation is paid to the victims of this category, it would amount to rewarding the offender.

 

It is found that some of the victims are in a real sense instigators. Their attitudes, wishes and personalities seem to provoke action by the doer. The actual affinity between the doer and the victim was found to range from complete indifference to conscious impulsion. There are some discernible attitudes which determine the affinity of victim and the doer. They are the attitudes of 'submitting, conniving, passively submitting, cooperative, contributory, provocative, instigative ad soliciting'. A person, who is equally responsible for the commission of a crime, is also a perpetrator of the crime. Offences like affray, free fight and rioting between some groups of people which result in the disturbance of public peace and tranquility are indeed the crimes against the entire community of a locality. Almost all the offenders sustain injuries in such cases. If such acts cause tension and disharmony in the lives of the people of the society, compensation to such injured persons is inappropriate.

 

The U.N.O. in its declaration of 'Basic Principles of Justice for Victims of Crime and Abu se of Power' laid down the method of tackling the problems of victims of crime and victims of abuse of power. They are as follows:

 

"Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to promote redress, as provided for by national legislation, for the harm that they have suffered.

 

Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

 

The responsiveness of judicial and administrative process to the needs of victims should be facilitated by:

 

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

 

(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

 

(c) Providing proper assistance to victims throughout the legal process;

 

(d) Taking measures to minimize inconvenience to victims, protect their privacy when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

 

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

 

Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

 

Offenders or third parties responsible for their behaviour should where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimisation, provision of service and the restoration of rights.

 

Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.

 

In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of the community.

 

Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimising act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

 

When compensation is not fully available from the offender or other sources States should endeavour to provide financial compensation to:

 

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes.

 

(b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimisation.

 

The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

 

Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.

 

Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

 

Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.

 

In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 above.

 

States should consider incorporating into the national law norms prescribing abuses of power and providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support.

 

States should consider negotiating multilateral international treaties relating to victims, as defined in paragraph 18.

 

States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation prescribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts."

 

One of the stumbling blocks in the implementation of such programmes is the financial constraint of the State. It can be modestly estimated that at least in 50% of pending criminal cases victims of crime may be eligible to get compensation. The amount of compensation to the victims of a case could range from Rs.100 to Rs.1 lakh. The approximate number of criminal cases pending in different courts in India is about five million. Out of them, in at least 2 1/2 million cases victims may be eligible to claim compensation. If compensation on an average is calculated at the rate of Rs.5,000/- per case, the mini mum requirement to meet the demand would be Rs.1,250 crores at present. In Kerala alone, for example, the total number of pending criminal cases is 2,24,428 as on 31.7.1996. Out of it, in 1,12,124 cases compensation at the rate of Rs.5,000/- may have to be paid and the total amount of compensation would come to Rs.56,10,70,000/-. If the State is called upon to pay the entire compensation, then there will be heavy burden on the exchequer. It may not become possible to recover the compensation from the offender if he is untraceable, acquitted or impecunious.

 

The other option is to create a public fund for the purpose. An appeal may be made to the people and philanthropic societies to generously extend their co-operation in contributing money to organise such a fund, if the State fails to provide it.

 

However, to start with, payment of compensation may be confined to the victims of crimes of violence. One who causes personal injury on another or death of another by committing unlawful or reckless acts may be said to have committed a crime of violence. They may be grievous hurt (except those, including death, arising out of accidents and war) murder, rape, dowry related torture and dowry death. Amount of the loss of movables or cash cannot be precisely determined objectively. Very often, the victims make exaggerated statements on this score. Hence such claims may be excluded from the purview of any scheme relating to the grant of compensation to the victims.

 

Forums, like the Consumer Redressal Forums, may be constituted by an Act of Parliament to adjudicate the claims and award compensation in deserving cases.

Rappai v. Anthappai

 

(By Varghese T. Abraham, Presiding Officer, Labour Court, Ernakulam)

 

Giant Anthappai was in the business field

Clients he had all over the world

Collapsed all on a sudden he in trade and business

Empty was his purse and disappeared his friends

 

                      "Squandered he money like a prodigal son;

                       Didn't he bother about future": commented his dear ones

                       Debts he had to repay and suits to defend

                       Dejected was he and neglected by all.

 

Rappai-his neighbour, a teacher retired

Sent he his daughters, except one, with suitable grooms

Sons are well placed and lead they a happy life

Deposited he money for the daughter and ornaments in the locker

 

                        Attended he church early in the dawn

                       Offered he prayers with family in the dusk

                       Referred he gospels and also psalms

                       Loved his neighours and gave poor alms.

 

To the downtrodden and needy "love" was his verb"

“Good Samariten": said all and sundry in the village

Lamented he always towards the needy and orphans

Helped he a lot the widows and destitutes

 

                        Shedding tears came Anthappai and said

                        "Wife is of frail health, debts to repay

                        Life is at peril; lend me some money

                        Rappai, my friend, I promise to repay"

 

"Love Thy neighbour" provoked, simplicity stirred up

Sympathy weighed and Christianity awakened

So, he loaned not a paltry amount of twenty

But Rupees thousand in fifty

 

                        Blessings he showered and prayers he promised

                        Issued Anthappai a cheque, (Rappai not insisted)

                        Promised to repay with interest at twelve

                        Didn't he break usurious laws, never he was a Shylockian-lender

 

Flourished Anthappai in trade and business

Exported he frogs, prawns and fish

Encircled him friends and showered laurels on him

Clasped they hands on hearing him at Lions and Rotary

 

                        Played he ducks and drakes with money

                        Put up he buildings in the town like Babel's tower

                        Purchased he vehicles - heavy and light

                        Plots he bought and boats he owned.

 

Demanded Rappai his money without interest

To send his daughter with a handsome groom

Hard hearted Anthappai unfolded his hands

Hard pressed Rappai appealed for his money

 

                        Mediators intervened and business tycoon refused

                        Met Rappai a lawyer and sent him a notice

                        Reply he sent and disowned the cheque

                        Presented the cheque; returned it with "refer to drawyer"

 

Filed he a complaint under the N.I. Act

Swore he before the Magistrate truth and nothing but truth

Sent summons the Court: all returned "accused not in station"

Never Anthappai appeared; but Rappai was present

A year and more expired, Rappai was tired

To avert a dismissal he must be present

 

                       "One year expired; service is not completed

                         Your case is closed" said his lawyer

                        "Am I at fault?" a sobbing query to the lawyer

                        "Am I at fault?" Piercing was the retort.

 

Got back the cheque and thought for a while

Rushed he to the station to square up the problem

Made he a yowl and stood there with tremble

Explained he the grievance with folding hands

 

                         "Bring him here soon" and the jeep took its start

                          Brought him there and stood he with culprits and cut throats

                         "Give him soon whatever is due", Inspector shouted

                          In bundles he brought currency without demur

 

Principal and interest Rappai got

Returned he home with confucius' words

"I give credit; you no pay

I get mad

You ask credit; I no pay

You get mad

BETTER YOU GET MAD"!