Sidelights on 'Contempt'

(T.G. John, Advocate, Thrissur)

"The Karachi Bar Association has learned with grant regret and concern of the undeserved insults given by the Hon'ble Chief Judge to the President of the Karachi Bar Association, Mr. Syed Ahmed Rafique, Barrister-at-Law, and to an outstanding member of this Association Mr. M. A. Alvi, Advocate and places on record that in its opinion the attitude of the Hon'ble Chief Judge has been persistently contemptuous towards the members of the Bar in general and the displaced lawyers in particular, making it impossible for them to keep up the well-known tradition of the Bar, of placing their clients' causes before a Bench adequately and fearlessly. This Association further affirms that the learned profession of law is the mainstay of the liberty and the rights of the citizens and the Courts will be undermining foundation of the State by a disregard of the rights of the lawyers and this Association warns the learned Chief Judge that if there is a further repetition of this behaviour, this Association will be forced to take measures which it sincerely wishes to avoid".

On 15th June, 1949 at a meeting of the Karachi Bar Association the-above resolution was moved by Syed Ahmed Refique, the President of the Bar Association. The Secretary Mr. Raza Mirza supported the resolution. In its issue on 17th June, 1949 the "Dawn" a Karachi Daily newspaper reproduced most of the resolution under the caption "Karachi Lawyers Resent Chief Judge's Attitude".

When these matters were brought to the notice of Sind Chief Court notices were issued to the President and the Secretary and also Altaf Hussain, the Editor and Ghulam Hussain, the printer and publisher of "Dawn" to show cause why they should not be punished for contempt of the Court. Tyabji C.J. had no hesitation to hold that the imputations and threats contained in the resolution were such as were calculated to lower the authority of the Chief Judge and the Court and further expressed that it would be impossible to argue that the matter published was merely a reasonable argument of expostulation against some particular judicial acts as being contrary to the law or the public good. The Judge also referred to 33 Bombay 252 (Government Pleader v. Jaganath Samant) where Scoot C.J. stated "Pleaders are a privileged class enrolled for the purpose of rendering assistance to the courts in the administration of justice. Their position, training and practice give them influence with the public and it is directly contrary to their duty to use that influence for the purpose of bringing the administration of justice into 'contempt'. However, in the Karachi case, in view of the unqualified apologies handed over by the two advocates to the Advocate General before the commencement of the hearing and the peculiar circumstances of the case, the Judge discharged the notice against all the parties with the further following observation: "We have reason to believe that Sayed Ahmed Refique, the President of the Bar, was the prime mover behind the resolution and that it was personal pique arising from offended vanity, which had led him astray into the irresponsible course which he followed. Under these circumstances, the humiliation involved in the recantation which he was constrained to make, in the presence of his fellow Advocates and in a crowded Court, may in itself, I think, be regarded as a fitting punishment for an offence, which appears to have been committed very largely as the result of false pride".

The principle governing contempt of courts has been neatly elucidated by Lord Russel in his Judgment in Reg v. Gray (1900 2 Q.B.36). It has been made clear by his Lordship that any act done or writing published calculated to bring a Court or judge of the court into contempt or lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class belongs to the category which Lord Hardwick L.C. characterized as "scandalizing a Court or Judge". The description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.

In A.I.R. 1967 Allahabad 586, it was held that the concept of contempt of court by scandalizing court, as modified in England and Austria has no application in India. The social and economic conditions of the public in India are again such that it would be very dangerous to grant them the liberty of scandalizing the court. In the Supreme Court judgment in. E.M. Sankaran Namboodiripad v. Narayanan Nambiar (1970 KLT 588), Hidayattulla C.J. observed. "The spirit underlying Article 19 (1)(a) must have due play, but the provisions of the second clause of the Article cannot be overlooked while it is intended that there should be free speech and expression, it is also intended that in the exercise of that right contempt of court shall not be committed".

As far as our country is concerned, the law regarding contempt of court had been neatly codified as early as 1926 with successive enactments upto 1971. It would have been highly salutary that in view of the onerous duties of the Advocates, the Legislature was munificent enough to envisage an enactment on the line of "Contempt of the Bar Act" also. It is upto the Bar Councils to take some interest in the matter.

On 'Schindler's List' and Genocide

(T.G. John, Advocate, Trichur)

Of recent interest in the Oscar-won film of Steven Spielberg, 'Schindler's List'. Spielberg, an American Jew has revealed in the film the remarkable story of Oskar Schindler who saved about 1200 Jews from deportation to the extermination camp of Hitler. Genocide was Hitler's extermination programme.

During the 1939-45 World War, it was estimated that the Germans killed twelve million people which the allied victors considered had made them responsible for the most appalling crime against humanity. For, these people were liquidated by the most unimaginable methods. Total technological resources were called into play, Scientists, Engineers, Doctors, indeed a whole nation, in order to achieve this. At the Nuremberg trial of the twenty two major German war-criminals, a competent observer has emphasised that there was seldom a hint of contrition, on the contrary every effort was made to justify these deeds. There seemed no consciousness of responsibility and in fact given the chance 'they would go through it all again'.

The four charges were (1) the common plan or conspiracy (2) crimes against peace (3) war crimes (4) crimes against humanity. The first two charges were generally concerned with the planning and waging of wars of aggression in violation of international treaties. Charges three and four concerned systematic murder, torture and forced labour, death marches, gas chambers, crematoria, concentration camps etc. At many of the concentration camps, the motto of the action groups was 'He who enters this camp shall leave it only by the chimney of the crematorium'. Four million people were exterminated at Auschwitz camp; one and a half million at the Majdenek concentration camp. Entire villages were shot or burned alive. Thousands of tons of fertilizers were made from the crushed bones of the burnt corpses. The crime of genocide and its whole background in the growth of Nazi Germany is related to something far deeper than politics as normally understood. Hitler grasped quite clearly that the vast majority of Germans were not ready for spiritual freedom, for individuality, for personal responsibility and choice, in fact were afraid of freedom and hated it. It is interesting that some of the chief mass-murderers, Himmler, Goebbels, Eichmann and Hess were seriously intended for priesthood, all came from strict religious families and surrendered completely to this frienzied destruction of judeo-christian values.

In Hitler's presence doubt, questions and anxieties dissolved before the simplicity of his actions, that primal simplicity of destruction and annihilation. He followed a course which brought him to the summit of power and an even more helpless dependence. In the war years, skulking in deep retreat and in the early march with Hindenberg, one of the first to run. And at the end, in the Berlin bunker not even Germany meant anything to him. Only death, destruction, the whole world in flames and the saving of his own ego. Having known men, I prefer dogs, said Hitler near the end. Of the thousand who took part in the Jewish massacres, very few have been tried, in fact the great majority of technicians, medical experts etc., who had taken part in the extermination programme have simply vanished, let alone be tried. It is said that the German firm of Tesch And Stabenow from Hamburg made a gross profit of 1,28,000 marks in 1943 for the supply of Cyclone B. Gas. "My conscience is the Fuhrer" - Goring had said General Chlendorff, in charge of the Ukranian massacres had predicted - "The future would bind my firing squads as efficient as the press-button killers of the atom bomb".

The method of the action groups was quite straight-forward. The Jews were crowded into trucks-taken to some ravine or anti-tank ditch-stripped of everything and then men, women and children were shot on the spot. Eichmann put the total number of Russian Jews murdered as two million. In Samosc mounted SS attached the Jewish quarter in typical fashion to grab deportees for the extermination centres. The spectacle which the ghetto presented after the attack literally drove the survivors mad, Dead bodies everywhere in the streets, in the houses - Babies thrown from the third and fourth floors lay crushed on the side walls! From Auschwitz concentration camp thousand of bales of hair shown from Jewish corpses were despatched to stuff German mattresses. Tons of their clothing, toys and spectacles were worn and used by the German people. Seventy two transports of the gold from their teeth went to the Reichbank and fat from their corpses made millions of bars Of soap to help cleanse the German people!

For whom are the bells tolling every New Year? About half a century has whisked away. Outside on the international scene, we hear the din of the charging youth and angry young men and women who swear by their prominent sideburns, long hair does and poets oriental and occidental- "The old order changeth yielding place to new". But what is the change - except L.S.D. visions and skirts that are going up and own - mini and maxi? The major crimes of humanity are the same and continue with added velocity. The old Neros and Hitlers at least stopped fiddling when Rome and Berlin burnt down; but modern leaders with dictatorial leanings continue fiddling even after the event'.

The Story of a Maharaja

(T.G. John, Advocate, Trichur)

Once upon a time, when British Raj reigned supreme over our motherland, the country was strewn over with a number of princely States ruled over by Maharajas. The State of Gidore was one such princely state and like all States, it was also ruled by a Maharaja-Maharaja Vikaji Rao Bolkar. Like all Maharajas, he had a Prime Minister also - Rao Bahadur Dewan Chaman Lal. The Maharaja lived in great splendour, was very rich and loved his subjects. The ruler however had a partiality for womenfolk among his subjects. Some of the fortunate women entered the palace as Court musicians and many became his concubines according to his will and pleasure.

Prime Minister Chaman Lal had a mistress, a Punjabi Muslim woman called Jahnara who was an adept in Indian classical music and in Jehnara the Prime Minister had a daughter, Mumtaz, who was very beautiful with an extremely melodious voice and accomplished in western dancing and Egyptian 'Belly dancing'. Mumtaz used to give dance recitals in the palace and the last part of some of these dances ended in her becoming completely or almost nude. The Maharaja cast his covetous eyes on this eighteen year old girl and a faithful minister as ChamanLal was,he surrendered Mumtaz to his master. Mumtaz entered the palace and accepted to the ruler's embrace under the name Kamala Bai. Mumtaz was depressed and she did not like her life in the palace as the Maharaja's concubine. The Raja was fifty-two years old and herself only eighteen.

Captain Osman, a handsome young and Sandhurst-educated man was stationed as the Commandant of the Gidore Palace Guards consisting of a platoon of 250 riflemen. He had a strong, athletic figure and one day by sheer chance, at the palace he had a fleeting glimpse of Mumtaz. He was powerfully attracted by her. Mumtaz also felt the same for Osman and thereafter clandestine meeting followed. The scandal reached the Maharaja's ears who transferred him to another post very distant from the Palace. Osman therefore resigned his post under the Maharaja to join the Indian Army under the British. Meanwhile, Osman openly declared his engagement to Mumtaz and hisdecision to marry her according to Muslim rites. The Maharaja's fury knew no bounds. A few days later while Osman and Mumtaz were having a clandestine meeting, three masked villains appeared. One lifted Mumtaz bodily and dragged her away. Osman was unarmed but he dealt a heavy blow with a large piece of stone that one of the ruffians fell down dead. But meanwhile the other ruffians dealt a blow on Osman's head with a heavy lathi which cracked his skull. Osman's wounded unconscious body was carried away and thereafter nobody heard anything about Osman! The Maharaja chuckled.

From that day onwards Mumtaz and her mother Jehnara were virtually captives in the palace. Their applications to the Commissioner of Amritsar Division and the Governor of Punjab to grant them passages to their place of Amritsar went unheeded. Mumtaz became pregnant. She was admitted to the Gidore State Hospital for delivery. A still-born child was delivered but in the throes of the childbirth Mumtaz went out of her mind. She was taken to the Government Mental Hospital at Suri where she regained her senses. Thereafter the mother and daughter decided not to return to Gidore, to escape from the Maharaja's clutches and took up residence in a posh hotel in Bombay on the Marine Drive. There they got associated with a millionaire businessman Abdul Kadir Chawla. Romance developed between Chawla and Mumtaz and one fine day Mumtaz became his mistress and her mother Jehnara Ms house-keeper. But he still followed Mumtaz.

The Maharaja, as said before, loved all his subjects and had partiality for womenfolk! Somehow, he heard about Chawla's escapades and the jilting by Mumtaz. Chawla began to receive anonymous letters. Systematic attempts were made on his life. One day in January 1925, while Chawla and Mumtaz were going together in a spacious convertible of Chawla, with a liveried chauffelur driving it and as the car was approaching the Malabar Hill, another car coming from the opposite direction suddenly way laid Chawla's car. It was dusk. There was a fusilade of gunshots from the new car. The driver and Chawla fell in the car itself wounded. Mumtaz though wounded was taken bodily into the other car. At tins critical juncture, some British military officers were returning to their barracks after a game of golf. Hearing the commotion and shrieks, they took charge of the scene. There was a regular fight and Captain Seagart held one of the ruffiains in an iron grip, even though he himself was wounded. Tire other ruffians ran away leaving Mumtaz in the car. On the police arriving at the scene, the wounded were rushed to the hospital. But Chawla and his driver succumbed to their injuries. Mumtaz and Captain Seagart recovered. From the scene of occurrence, the police recovered a pistol which showed marks of the Gidore Army. Investigation revealed that the five assailants included top officers of the Gidore State Force, Mounted Police and Air Force. They were arrested on a charge of murder.

When the matter came upon-for trial before the Bombay High Court (having original jurisdiction at that time) the array of the accused included Ananda Rao Phanse, Adjutant General of the Gidore State Forces, Captain Sham Rao of Gidore Air Force and Shall Ahamad, a Risaldar of the Mounted Police of Gidore. The Maharaja provided the best defence for the accused. The leading counsel for the defence was late Mr. Jinnah, assisted by the advocate General of Gidore. The Bombay High Court sentenced Phanse and Sham Rao to death. The appeal of the accused to the Privy Council also failed.

The great sequel was that after this episode, the Maharaja of Gidore was notified by the Viceroy of India under the Government of India Act either to abdicate or face a Commission of Inquiry. The Maharaja who loved all his subjects, especially the womenfolk among them, chose to abdicate because he shivered at the idea of facing a commission and also because he had heard that the wages of sin is death!

The Brides in the Bath

(T.G. John, Advocate, Trichur)

QUEEN ELIZABETH I of England (Elizabeth Tudor) was considered surpassingly sanitary in her time because she took a bath once a month "whether she needed it or not". Despite the innovation of the order of the Bath, a Georgian Duke later pronounced that it was sweat that kept a man clean! And it may have been adherence to this hygenic principle which resulted in there being no bath fitted to Buckingham Palace when Queen Victoria came to the throne in 1837. Aided perhaps by the teenage influence of Florence Nightingale, who expressed the conviction that "with privacy and a quart of water any woman can be clean".

The bath, however, made a triumphant come-back during Queen Victoria's reign due perhaps to John Wesley's 'heretical' teaching that "Cleanliness is next to Godliness"; major improvement in the efficiency of plumbing, and the fact that the Industrial Revolution made life in. general much grubbier.

In addition to simple hot water, people have since submitted themselves to bath, in mud, peat, bran, malt, soup, offal, blood, dung and most other non-corresive emulsions! Historical awards for originality have gone to Poppea, Nero's wife, who tubbed herself in asses' milk, Mary Queen of Scots, who soaked her long body in white wine, Cora Pearl who disported before customers in champagne, and Mrs. Porter and her daughter who washed their feet in soda water. The late Aga Khan's bath water was probably the most valuable since hotel fable holds that special catchment arrangements had to be made when he was in residence so that it could be bottled and sold to the faithful as a universal panacea! Besides their normal ablutionary function, bathtubs have been used by Romans for committing Hara-kiri, for storing coal by apocryptal cockney-dwellers, and by Mr. George Joseph Smith for doing-in brides in.

That gives me the trigger for the story and trial of George Joseph Smith, the great "Marriage-Swindler" who is one of the most powerful argument against judicial savagery in criminal history. He was born in Bow in 1872 and when he was only nine years old, he was sentenced to eight years at a stretch in a reformatory! This undoubtedly had the effect of making him a ruthless enemy of society. Anyone who can visit a Borstal institution today can easily envisage how much more horrible they must have been in the good old days and that only elicits more sympathy for Mr. George Joseph Smith than for the Judge who condemned him and went on muttering in his sleep all through his lifetime " Fiat Justitia!.

In 1896 he was sentenced to a year in Jail for receiving stolen goods- the actual thief was a servant girl who stole under his direction. He was released in 1897 and a year later be married Caroline Thornhill in Leicester. In her two years of married life with him, she had also become a criminal and when finally she was arrested she gave Smith away and again he was condemned for two years for receiving stolen goods-the maximum sentence.

During the next six years, he perfected, his method of marriage swindler. It is not known how many women he 'married' and left (the women were different to come forward as witnesses) but the technique was always the same; once the woman was ' married' and had trusted her husband with her money he went out on some pretext-to buy a paper and vanished!

In 1908 he met and married a woman for whom he seems to have felt genuine affection. Edith Pegler answered his advertisement for a house-keeper and Smith married her at Bristol under his own name. Miss pegler had no suspicion about her husband's real trade. While travelling in Clifton (Bristol), Smith met one Bessi Munday, a woman of 31 and who possessed about 2500 pounds. Smith called himself Henry Williams; the courtship was swift and they were married at Bey mouth Registry Office. Miss Munday was Smith's second wife since his marriage to Edith Pegler. Through much persuasion they made wills in one another's favour and then Smith bought a Zinc Bath for 1 pound. On 13th July 1942, Miss Munday was found drowned in this bath in their house in the High Street, Heme Bay. Smith obtained her property and rejoined Edith Pegler at Margate. He explained his affluence by saying that he had had a profitable business trip to Canada.

Smith now bought seven houses in Bristol for 2180 pounds.

His next victim was a healthy professional Nurse named Alice Burnham whom he met at South Sea. She was the daughter of a Coal Merchant. Smith managed to get her cash 100 pounds and insured her life for 500 pounds. They were married and on 12th December 1913 she was drowned in her bath in a house in Regent's Road, Blackpool. Again a verdict of death by misadventure was returned and Smith made 600 pounds by her death.

Then followed another quiet year with Edith Pegler and then he repeated his old trick of 'marry and run' marrying Alice Reavil, a modestic servant and absconding with 100 pounds and her clothes and jewellery. In December 1914 he met his last victim Elizabeth Lofty, lady's companion and clergyman's daughter. Smith gave his name to her as Lloyed. They moved to Bismarck Road - Highgate and she made a will leaving all her property to Lloyed alias Smith. The day after they moved in, the landlady heard sounds of struggle in the bathroom and hands slapping the side of the bath. Miss Lofty was found drowned in her bath and the verdict as usual was 'misadventure'.

The death was reported in the papers and a relative of Miss Burnham saw it and was struck by the similarity in the two cases and the matter was reported to Scotland Yard. The Yard immediately followed up the trial and warned Smith's Solicitor in Shepherd's Bush not to pay over the insurance money for Miss Lofty's death. In January 1915, Smith was arrested on a charge of causing a false entry to be made on a marriage certificate. As evidence against him accumulated, the charge was altered to murder.

Smith's trial began on 22nd of June 1915 and lasted for nine days. It took place before Mr. Justice Scrutton at the Old Bailey, Sir Archibald Bodkin prosecuting and Sir Edward Marshall Hall defending. The Jury were out for twenty three minutes and returned a verdict of guilty. Smith proclaimed his innocence to the end but was executed on 13th August, 1915.

Typical of Smith's calculating callousness was an incident in connection with his purchase of the bath in which Miss Munday was drowned; the shop asked 2 pounds for it. but Smith beat them down by a half a crown!

Christian Law of Succession

(By Sebastian Champappilly, M.A., LL.M., Advocate, Ernakulam)

Intestate succession among Travancore-Cochin Christians has been a subject of public debate ever since the decision of the Hon'ble Supreme Court in Mary Roy's case [1]. It appears that the decision has created considerable confusion not only among the members of the Christian community in Kerala-, but also among the lawyers. Till the aforesaid decision of the Hon'ble Supreme Court, the Travancore Christians were governed by the provisions of the Travancore Christian Succession Act, 1916 and (he Cochin Christians were governed by the provisions of the Cochin Christian Succession Act, 1921. Christians in other parts of India were governed by the provisions of the Indian Succession Act, 1925 with such exceptions as provided in the Act. It was in this settled state of affairs that the Hon'ble Supreme Court rendered the decision in Mary Roy.

Mary Roy and its Reasoning

The question that arose, before the Hon'ble Supreme Court, for consideration was whether the provisions of the Travancore Christian Succession Act were ultra vires the Constitution. Another related question that was raised before the court was as to the impact of the Part B States (Laws) Act, 1951, on the Travancore Act. The court decided the case holding that the Part B States (Laws) Act excluded the operation of the Travancore Act and thereby obviated the need for examining the first question on the constitutionality of the Act. It took the view that by virtue of Section 6 [2] of the Part B States (Laws) Act, 1951, and the inclusion of the Indian Succession Act, 1925 in the schedule to that Act, the Travancore Christian Succession Act stood repealed from the appointed day under the Part B States (Laws) Act, i.e., 1-4-1951. Hence, it reasoned, the law applicable to intestate succession among Christians of Travancore area of the State of Kerala is the Indian Succession Act, 1925, from 1-4-1951. Following this decision, the High Court of Kerala ruled that the Cochin Christian Succession Act, 1921 also stood repealed by Part B States (Laws) Act, 1951 [3]. Though these courts did not expressly give retrospective effect to the judgments, the mere declaration that the Travancore and Cochin Acts stood repealed on 1-4-1951, gave these judgments retrospective effect overturning the then existing law and practice among the Travancore-Cochin Christians.

Problems Arising out of Retrospective Effect

The Christians of Travancore and Cochin conducted their property transactions in the belief that they were governed by the provisions of the Acts of 1916 and 1921, respectively. The Travancore-Cochin High Court in 1951 [4] and the Madras High Court in 1978 [5] affirmed and reaffirmed that the Travancore Act still remained in force, inspite of the Part B States (Laws) Act, 1951. When the Hon'ble Supreme Court declared in 1986 that, that was not the law, the property transactions of Christians in both testamentary and intestate happen to be illegal.

These decisions have had another impact. Under the Travancore-Cochin Acts probating of wills was not mandatorily applicable to the Travancore-Cochin Christians. But under S.213 of the Indian Succession Act it was mandatory for the Christians to get their wills probated. Therefore, as a consequence of the decision, family settlement deeds based on wills that were not probated have suddenly become invalid in view of the application of S.213 with effect from 1-4-1951 [6]. In the case of intestate succession partitions or family settlements made in accordance with the pro visions of the Travancore Act also became defective. Such documents, now, cannot be used as securities for financial transactions, and further, daughters (sisters) who were excluded from the share, (under the provisions of the Travancore or Cochin Acts) can now re-open the matter both for genuine and mala fide reasons. In short, many a title deed in the hands of Christians remain defective and this would adversely affect the stability and progress of the community, as all the settled property relations may have to be unsettled and resettled.

An argument has been advanced that there are not many cases arising in the matter of Christian intestate succession consequent on the decision of the Supreme Court, and that the law of limitation would put an end to all surviving claims and the matter is only to be ignored, as now the Christian community is not opposed to giving equal share to women in the matter of intestate succession. This complacent conclusion is not sustainable as evidenced by case law. The High Court of Kerala recently upheld the claim of a women for share in the property of her father, though she was married in the year 1950 and intestacy occurred in the year 1944. The matter came up for consideration before the High Court in 1988. [7] In yet another case, the High Court upheld the right of the woman for streedhanom alone [8]. There seems to be no consistancy in the approach of the court in these matters. The problems created by Mary Roy are thus still alive. There are instances of misuse too. In a recent case, a brother who excluded his sister from the sharing of property, pledged the document relating to his property as security for a loan. On default of payment, the bank instituted a suit and the property was sold in execution. When delivery of the property was to be effected, the sister, apparently at the instance of her brother, filed a suit claiming her rights in the property and moved for stay of delivery of the property [9]. In short, there are difficulties arising out of the decision in Mary Roy, as limitation cannot be effectively established in many cases.

Historical Background

In this context, in order to have a better appreciation, it may be appropriate to look into the historical background of the development of the law of succession among Christians of the former princely states of Travancore and Cochin. The Christians [10] of Travancore and Cochin followed the Hindu Law in matters of succession. Christian women, whether married or not, were excluded from inheritance, even if they had no brothers. Thus, the parent's property passed over to males belonging to a very remote degree of consanguinity and even in the transverse line. This is evident from the decrees of the Synod of Diamper, 1599 [11]. The Synod by its 20th decree, declared that this mode of succession to be contrary to natural equity and wholly unlawful and decreed that the property must be equally distributed among sons and daughters, [12] Disobedience to this decree was declared to be a sin and whoever refused to observe this law or to make restitution was to be excommunicated beyond all hope of absolution, until he obeyed the decree and made restitution [13]. The mode of succession was one of the chief customs which the Synod tried to change. The letters written by Francis Roz, the first Latin Bishop of the native Christians, to his religious superior in Aquaviva, recount that it was not possible to get the native Christians to observe the decrees of the Synod which related to ancestral customs. Thus inspite of a threat of the highest form of religious punishment, the native Christians of Travancore and Cochin could not be compelled to change their customs relating to succession to property and the community continued to follow their own customs in matters of succession.

While so, in 1906, the Travancore High Court had an occasion to consider the customary law of succession among Christians [14]. In this case the widow of a Syrian Christian, who died intestate without issue, claimed to be the sole heir to his estate. The mother also claimed to be the sole heir and the court found that there was no specific rule to resolve the dispute. Therefore, the court decided the matter by applying the provisions of the Indian Succession Act, 1865. In the very same year in another case [15] a Full Bench of the Travancore High Court held that in matters of succession, the principles of the Indian Succession Act would apply. This was followed in another decision [16] in the year 1907 also. By now, the court have had occasions to consider the questions of succession relating to almost all Christian denominations and the final position of law as established by the precedent was that though there was no enacted legislation, as a matter of applying the principles of justice, equity and good conscience, the principles embodied in the Indian Succession Act, 1865 would apply to the Christians in matters of Succession.

Codification of the Law

It was in these circumstances that the law was codified in Travancore by the Travancore Christian Succession Act, 1916 and in Cochin, by the Cochin Christian Succession Act, 1921. Obviously the legislature had in mind the earlier decisions rendered by the court and codified the law in accordance with the customs prevailing in the Christian communities. This is evident from the preamble to the Act, which categorically declared that it was being enacted to consolidate and amend the rules of law applicable to intestate succession among Indian Christians [17]. These enactments could thus be deemed to have been made after considering the customary law as well as the decisions rendered by the Courts, applying Indian Succession Act, 1865 wherever relevant to the Christians. Therefore it could be concluded that by the time these provincial enactments consolidating the then existing law and practice came into force, the Indian Succession Act, 1865 was hot to be applicable to the Travancore-Cochin Christians.

The Advent of the Indian Succession Act

In this context it is worth-while to examine the circumstances under which the Indian Succession Act, 1865 came to be enacted. When the British settled down to govern India, they found that there was no ascertainable law in the matter of succession for communities other than Hindus and Muslims. This vacuum came to be noticed as a result of the decision of the Privy Council to the effect that a Hindu renouncing his religion and becoming a convert to Christian Succession [18]. It was to fill this gap that the Indian Succession Act of 1865 was enacted. It provided inter alia for intestate succession of the Christians of India (and also of Parsis). It may be pertinent to note at this juncture that the Travancore Christian Succession Act 1916 and Cochin Christian Succession Act 1921 were enacted when the Indian Succession Act, 1865 was in operation. In other words these acts consolidated the position in the context of the 1865 Act as applied to Christians in Travancore and Cochin.

The Indian Succession Act, 1865 was repealed and the Indian Succession Act, 1925 was enacted, consolidating various other enactments in the matter of testate and testamentary succession. This Act was not to be applied to the Christians in the whole of India. It contained many a provision signifying its restrictive and cautious application. This Act does not contain an "extend clause". Further, S.3 empowered the State Government to exempt any race, sect or tribe or any part of such race, sect or tribe from the operation of the Act, by way of a notification. Again, by Section 29(2), existing law (law for the time being in force) was saved. So far as its application to the Christians in Travancore and Cochin, it may be noted that these were princely States over which the British had no sovereignty or law-making authority. Thus neither did the Act apply-directly to the Christians in these princely States nor was it specifically made applicable to them. In fact by virtue of S.29(2) it could be argued that the Indian Succession Act did not apply to the Christians in the Travancore and Cochin areas. The above conclusion was reinforced by the decision of the Travancore-Cochin High Court and the Madras High Court as discussed below.

Independence & Thereafter

When India became independent in 1947, the Travancore and Cochin States continued to be princely States. Those States became Part of the Indian Union when the respective Maharajas signed the Instruments of Accession in 1949, making them Part B State of Travancore-Cochin. Thereafter, Parliament enacted the Part B States (Laws) Act, 1951. Section 3 of the Act provided for extending the enactments mentioned in the Schedule thereto, to the Part B States. And Section 6, provided that any law in force in these States corresponding to any of the Acts extended to Part B States, would stand repealed. It was in this context, the question whether the Travancore Christian Succession Act stood repealed was raised. The Travancore-Cochin High Court where it was raised for the first time [19] held in 1956 that the Travancore Christian Succession Act was not repealed and it was the law applicable to Christians. Again the same question came up for decision in the Madras High Court in 1974 [20] wherein it was held that the Travancore Christian Succession Act stood repealed. But a Division Bench of the Madras High Court held otherwise [21] in 1977. Thus, it could be said that the position of law settled by the decisions of the Full Bench of the Travancore-Cochin High Court and the Division Bench of the Madras High Court was also to the effect that the Indian Succession Act, 1925 was not applicable to the Travancore Cochin Christians. The decision of the Hon'ble Supreme Court in Mary Roy must be viewed in the light of the above position.

Mary Roy & the Supreme Court

It may be appropriate here to examine the constitutional, procedural and jurisdictional issues involved in Mary Roy's case. Tire proceedings before the Hon'ble Supreme Court were instituted under Art.32 of the Constitution of India. Article 32 is a fundamental right to enforce a fundamental right or to avert a threat to a fundamental right. That being so, Art.32 cannot be pressed into service for determining the validity of an enactment, unless that enactment infringes the fundamental rights. This has been the consistent view of the Supreme Court [22]The Hon'ble Supreme Court reiterated its view in Khyerbani Tea Company's Case, [23] thus:

"In dealing with petition under Article 32, this court naturally confine the petitioners to the provisions of the impugned Act by which their fundamental rights are either affected or threatened".

A petition under Art.32 is thus maintainable only if it causes restriction on the enjoyment of fundamental rights. If a right is not a fundamental right conferred by part Ill of the Constitution, it is outside the purview of Article 32 for enforcement. In such cases, the petitioner may not invoke Art.32. It is open to the petitioner to approach the High Court under Art.226 of the Constitution.

Therefore, the mere declaratory judgment of the Supreme Court in Mary Roy, was passed ignoring the procedural and jurisdictional limitations of the court. This was contrary to the practice of the court. The only course open to the court was to examine the validity of the Travancore Act on the touch stone of the Constitution, and the impact of its judgments would then naturally have been prospective.

Constitution & Continuity of Laws

That apart, the Supreme Court had not looked into the Constitutional provisions relating to existing law and its continued applicability after its commencement. Art.372(1) declares that:

"all the law in force in the territory of India immediately before the commencement of the constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority".

And the President of India was given the power to make such adaptation or modification of the Law in force so as to bring them in conformity with the provisions of the Constitution. This could be done before the first day of November 1957 as is provided under Art.372-A of the Constitution. Further Art.13(1) provides that all laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistant with the provisions of Part III of the Constitution, shall to the extent of such inconsistancy, be void. Obviously these provisions relating to the law in force have been enacted to make the law in tune with the principles of International law and Public Law. For example, according to the principles of State Succession under International law, though the people change their allegiance, their relation to their ancient sovereign is dissolved, their relation to each other, and their rights of property remain undisturbed [24].

Also it is a general rule of public law, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country continue in force until abrogated or changed by the new sovereign. [25] When such is the position in international law and the Constitution of India has contemplated the situation and provided for meeting such a contingency by Arts.372 and 13, the failure of the Hon'ble Supreme Court in not adverting to the constitutional provisions in deciding the case on hand was unfortunate.

The Interpretative Dilemma

Laws with regard to touchy issues like succession etc. should reflect customs and practices for its acceptance and sustenance. In this sense the Travancore Act was a well balanced legislation inasmuch as its Ss.24, 28 and 29 were explicitly made inapplicable to certain sections of Christians living in certain Taluks. Indeed, the Indian Succession Act, 1925 also contains a safety valve in its sections 3 and 29(2) to make it relevant in the society. It is obvious that it was with a view to make it workable in the society that these provisions were included.

Now by the judgment in Mary Roy, the Indian Succession Act, 1925 in toto is made applicable to the Travancore area on the ground that it is expressly mentioned in the Schedule to Part B States (Laws) Act, 1951. While doing so, the court repudiated the strong argument that if the Act is wholly applicable its S.29(2) saving the existing laws (including the Travancore Act) should also be applicable [26]. Going by the precedents created by the Supreme Court itself, [27] S.29(2) should have been held applicable, thereby saving the Travancore Christian Succession Act, 1916. It could therefore be argued that, what the Supreme Court did was not interpretation in the true sense of the word, but a policy choice, which is the realm of the Legislature or the Executive. In short the reasoning and the decision of the court cannot be sustained on any ground. Had the court examined the issue in the constitutional context, retrospective operation of the decision would have been avoided. On the other hand, if S.29(2) was given effect to Travancore Act would have been saved. In both cases the present difficulties would have been avoided.

The Response of the Community

The decision has had, however, a positive response from the community. Christians in Kerala, by and large, welcomed the decision of the Supreme court with certain reservations. Now the majority of Christians do not seem to be opposed to giving equal share to women in the matter of intestate succession [28]. The consensus of opinion emerging at various seminars and discussions on the subject is that it is a welcome decision, if prospective effect is given to it. [29]

Some Suggestions

As the problems are still alive, it has become necessary to look for some solutions, in the constitutional context. As "intestacy and succession" is a subject included in the Concurrent List (Entry 5 of List III of the 7th Schedule) of the Constitution, the State Legislature is competent under Article 246, to exercise its legislative power and it can perhaps enact a validating Act, whereby the transactions arising out of testamentary and intestate succession in accordance with the provisions of the Travancore and Cochin Acts, made by Christians, from 1st April 1951 to 24-2-1986, could be validated. This view finds support in the decision of the Supreme Court in Hari Singh, [30] wherein the Court held that the Legislature has power to validate actions under an earlier Act and that the Legislature is competent to enact a legislation with full retrospective operation. Such a course of action would not be an affront on the judicial power. This is so, because there is distinction between legislative and judicial functions. In I.N. Saksena, [31] the Supreme Court held:

"In view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Arts.245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based".

As pointed out by Ray, C.J. in Indira Nehru Gandhi v. Raj Narain, [32] the rendering ineffective of judgments or orders of competent courts and tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power. Therefore a validating Act for the aforesaid purpose would be legal. When such a validating Act is enacted, the interests of those persons who would otherwise be entitled to institute a suit for partition or for claiming streedhanam can also be protected. They can be given a grace period by the provisions of the validating Act itself, within which period, they can institute the suit [33].Thus bona fide transactions made by Christians and even others can be legalised and those aggrieved could be given an opportunity to redress their grievances.

Yet another option for the State Legislature is to enact a State Amendment to the Indian Succession Act, 1925. Whether it is a validating Act or a State Amendment, il must receive the assent of the President of India, for its validity, as is provided under Art.254(2) of the Constitution. If the President assents to a State law which has been reserved for his assent (under Art.200), the State law will prevail over an earlier law of the Union, not withstanding its repugnancy to the Union law [34], if both the laws deal with a concurrent subject [35]. The result of obtaining the assent of the President to a State Act is that it would prevail in that State and it will have overriding effect on the provisions of the Central Act [36]. Therefore, there may not be any legal infirmity for such a course of action.

The State Government has yet another option open to it.lt can issue a notification exercising its powers conferred under S.3 of the Indian Succession Act, 1925 to serve the purpose. At any rate it is only just and proper that either the State Government/State Legislature or Parliament should resort to appropriate legislation to solve the problems created by the decision of the Supreme Court in Mary Roy.

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Footnotes:

1. Mary Roy and others v. State of Kerala and others. (1986) 2S.C.C. 209 = AIR 1986 SC 1011.

2. Section 6 lays down: "Repeals and savings-If immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in the Act, stand repealed".

3. V.M. Mathew v. Eliswa, 1988 (1) KLT 310 (D.B.). Also Joseph v. Mary 1988 (2) KLT 27 (DB).

4. Kurian Augusthy v. Devassy Aley, AIR 1957 T.C.1 = 1956 K.L.T.559

5. D. Chelliah v. G. Lalitha Bai, AIR 1978 Mad.66.

6. For a detailed discussion see Sebastian Champappilly, "Christian Succession and Probate of Wills -- Need for Change" - 1993 (2) KLT (Journal) 32.

7. Joseph v. Mary, 1988 (2) KLT 27 (DB). This case is a classic example as to how the settled property relations can be unsettled even after so many years.

8. Sosa v. Varghese, 1993 (2) KLT 798.

9. Judgment dated 28-10-1993 in CMA.No.169 of 1993, of the High Court of Kerala.

10. These Christians of Travancore and Cochin are called Syrian Christians or St. Thomas Christians.

11. The Syrian Christians of Travancore, Cochin and Malabar were under the ecclesiastical control of the Bishops sent from Mesopotamia. On the death of Mar Abraham the Syrian Bishop of the See of Angamali in 1597, the Archbishop of Goa, Menezes, managed to take control over the Syrian Christians and brought them under the direct control of the Pope, using Portuguese support, and he burnt all the collection of books and documents relating to the Syrian Christians maintained in the churches, and this is why we have so little written evidence of the history of the Syrian Christians in India before the 16th century. As part of his strategy to gain control over the Syrian Christians, he called all the representatives of the Syrian Christians from all the parish churches to a Synod at Diamper in 1599. See: CD. Firth "An Introduction to Indian Church History". (1976 Revised Edition) 89.

12. Cardinal Eugene Tisserant, "Eastern Christianity in India". (1957 Edition) 163.

13. Actio 9, Decretum 20, Bullarium Patronatus Portugalliae Regum, App.I.

14. Geevarghese Maria v. Kochukurian Maria, 22 TLR 192.

15. Ouseph Mathai v. Ouseph Kora, 22 TLR 205 (FB)

16. Cheriyan Achanpillai v. Cheriyathu Kuruvila, 23 TLR 84.

17. See Preamble of Travancore Christian Succession Act, 1916.

18. Abraham v. Abraham, 9 M.I.A. 195.

19. Kurian Augusthy v. Devassy Aley, AIR 1957 T.C.1; 1956 K.L.T. 559.

20. Solomon v. Muthiah, (1974) 1 MU 53.

21. D. Chelliah v. G. Lalitha Bai, AIR 1978 Mad. 66.

22. The Supreme Court in Chiranjit Lai v. Union of India, AIR 1951 SC 41 at para.44-45, observed: "Art.32 is not directly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at, is the enforcing of fundamental rights guaranteed by the constitution, no matter whether the necessity for enforcement arises out of an action of the executive or of the legislature... the sole object of the Article is the enforcement of fundamental rights guaranteed by the constitution... A proceeding under this Article cannot really have any affinity to what is known as a declaratory suit". Also see Lakshmanappa H.J. v. Union of India, AIR 1955 SC 3, Rain Chandra Palai v. State of Orissa, AIR 1956 SC 298.

23. Khyerbani Tea Company Ltd. v. State of Assam, AIR 1964 SC 925 para.43.

24. See Chief Justice Marshall's famous observations in United States v. Percherman, 7 Pet.51, 86. (Peter's Prince Edward Island Reports, Chancery -1857) (1850-1872).

25. See German settlers in Poland-Permanent Court of International Justice. (1923) P.C. I.J. Series B. No.6.

26. Section 29(2) enacts: "Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of (India)* in all cases of intestacy".

*Substituted by Ac: No.III of 1951.

27. In fact this has been the view of the Supreme Court as it observed in State of Punjab v. Mohar Singh Pratap Singh. (AIR 1955 SC 84 at page 88). "Whenever there is a repeal of an enactment, the consequences laid down in S.6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, hut whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that S.6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. S.6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material".

28. This opinion is based on the tentative conclusion made by the present writer after an analysis of the empirical data collected in connection with his Ph.D. Programme in CUSAT.

29. See the report in the vernacular daily "Deepika" dated 1-11-93 wherein, Mar Antony Padiyara (the Major Archbishop and Cardinal) expressed the view that the retrospective effect causes hardships for the community. A further report in the vernacular daily "Malayala Manorama" dated 15-11-93 reported that the All Kerala Catholic Women's Organisation had called upon the Government to implement the Indian Succession Act, from 1986 only.

30. Hari Singh v. The Military Estate Officer (1972) 2 SCC 239 = AIR 1972 SC 2205.

31. I.N. Saksena v. State of M.P. (1976) 4 SCC 750 para.22 = AIR 1976 SC 2250. Also see, D.D. Patil v. Special Land Acquisition Officer, AIR 1989 Bom.286.

32. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1.

33. When the Limitation Act, 1963 was enacted, such a provision was made by S.30 of the Act

34. U.P. Eke. Supply Co. v. R.K. Shukla, AIR 1970 SC 237 at 239.

35. Karunanidhi v. Union of India, AIR 1979 SC 898 (para.8)

36. Narayanan Namboodiri v. Chinna, 1993 (2) KLT 848 at 851.