The Dowry Problem : Progress in Legal Remedies

(By Dr. Werner Menski, SOAS, University of London)

In November 1997, the Third International Conference on Dowry and Bride-Burning in India will take place in London at the School of Oriental and African Studies, following two earlier Conferences at Harvard University.[1] Concern among the Indian diaspora has risen, since there are now cases of dowry murder in Britain and the USA. Few people are willing to talk about such problems.

This article attempts to analyse the dowry problem in its social context and then turns to the relevant statutory and case law in India. It is possible to show now that the legal machinery of India anti-dowry measures is in place and functions, but this is true only for the superior courts. Anti -dowry measures still do not produce effective controls at the lowest level, when it comes to prosecuting murderous mother-in-laws and callous husbands. The law does not appear to have enough effect on the minds of those of those who turn into murderers.

The first fact to note about dowry is that it is a modern phenomenon, a consumerist aberration, rather than an old tradition. Ancient Indians did not kill women for cash, gold, fridges or cars. The bride herself, rather than any goods that came with her, was valued for reasons which Indians understand well: women alone could produce the next generation. Dowry extortion is also not a poor people's disease, a sickness of illiterate Indians who didn't know better, instead it is calculated middle class game, a pre-occupation of the supposedly educated elite. I have found it highly problematic that teaching about the dowry problem in London equips students to exploit this phenomenon still better, since a London-returned lawyer, fetches more dowry.

Much has been written about South Asian dowry problems. Indian anti-dowry law has now reached a point where almost all possible legal reforms have been made and the highest judiciary is now sensitised. But every day, dowry murders continue as though the law does not exist. Dowry is clearly a social problem, which must be tackled through self-controlled action on the part of people as members of society. What is the role of the law in this context? In fact, is there a role for law?

Dowry is such a complex subject because it is not just about women or money, it is also about status. But what status, and whose status? The dowry literature is dominated by gender debates, while it is confirmed, every day, that women turn other women into dowry victims. I see dowry- violence as a severe form of bullying, manifestation of exploiting unequal power relationships between individuals in a family, in a way which leaves 'the other' no space to bargain and, ultimately, to live. Research in the past few years has shown that merely focusing on the man or the husband's family as the perpetrator of dowry violence overlooks the self-interest of the bride and her family and their stake in dowry transactions. A bright young American Asian economist, Bisakha Sen, has gone further by showing that the dowry problem is clearly situated at the interface of male/female relations and has powerful economic status dimensions especially for the bride's family, which no sensible debate can overlook.[2]

A survey of the literature on dowry shows that several suggested strategies for the abolition of the dowry problem have failed. The legal control of dowry has not been a full success either and faces determined social opposition. The anti-dowry law can be read as a law prohibiting people from getting rich quick. Criminalising such practices cannot be fully effective unless one has a police state in which every infringement of the law will be reported. That, in my view, would be too high a price to pay for controlling one problem - it would create many others. But why do South Asians burn women for cash? Can't one trust educated people to be sensible about their marriage arrangements?

Let us ask three simple questions : What is dowry, what is the dowry problem, and what actually is the law trying to prohibit? It is wrong to say and to assume that there must be a dowry in every Indian wedding. One reads this all the time, but it makes the problem worse. Writers dramatise the problems of dowry but fail to mention that dowry deaths only occur in certain situations, while the law suggests a blanket ban on dowry. That itself is nonsense if it means that one is not allowed to give one's daughter all sorts of goods on her wedding day. A lot of the writing-and the law itself-is confused about such basic issues. Dowry is at least two things at once, comprising gifts which go from the girl's family with her to the new home and gifts for the husband's family. As long as everyone agrees about the nature of such gifts and transactions, even a huge dowry creates no dowry problem, it only occurs when there is a breakdown in what I call the 'customary contract' between the families, when either side violates the implicit understanding or explicit agreement. In essence, this occurs only when either the girl's people have promised too much and later can't deliver, or the boy's people demand more and more, despite assurances that they wanted 'only the girl', as one reads later in court documents.

If dowry as an instrument of extortion did not exist earlier, why does it occur today? It seems that the ancient pattern of endowing one's daughter with all kinds of goods on her wedding day, on her transfer to a new family and home, has been 'hijacked' by modern consumerism. Exploiting the entrenched cultural pattern of endowing daughters on marriage, it has been easy to abuse this basically sensible custom for extortionist excesses. "Your daughter is too fat, my son will only marry her if you give him a Mercedes." No self-respecting father would say such words outright, but exactly this thought process is there when every perceived blemish of the bride is weighed up in compensatory payments, and the dowry becomes a 'sweetener', enticing he most desirable groom available for one's daughter. There may still be no dowry problem if everyone is happy with their bargain. Dowry murders occur, however, where a daughter-in-law is viewed primarily as a carrier of property, and when she herself is treated as part of this property. While this is less likely to* occur in South India than in the North, there are also cases from South India which show that such thinking is not alien to anyone.

Discussions about dowry have been confused because the ancient tradition of giving a daughter goods on marriage, predominantly for use in her new home, has been challenged as an unfair deal for women in patriarchal setup. However, the argument that giving women better property rights would alleviate the dowry problem, was already questioned by one of the earliest writers on dowry.[3] Feminist writers have also found that dowry is an important asset to women, often a valuable security of enormous benefit in financial and status terms.[4] To demand that right-minded women should renounce dowry, says Kishwar (1988 : 10), is the same as asking an impoverished labourer to work for free because it is degrading to receive a pittance rather than fair wages!

Dowry transfers have been abused in two distinct ways. First, it is relatively easy for the boy's side to indicate that the bride should come endowed with specified items, much beyond the realm of the personally useful and practically-needed. Inflation of dowry has undoubtedly been driven by wife-takers exploiting their ritually and socially superior position. But while this is a major reason for dowry problems, it is only half the story. If everyone agrees to give and take what is expected, if the two families play the status game of marriage to maximum mutual benefit, there is still no dowry problem. However, if further demands are made after the marriage, during the marriage ceremonies, or already at the time of negotiations, some families sensibly pull out of the negotiations, if they still can, while others may agree to unreasonable demands in their desperation to catch the groom. Once the boy's people find that it pays to make more demands, the girl's side has allowed itself to be trapped. Pulling out would involve loss of face, and of the groom, so some families accept even the most unreasonable demands. Years later, one reads such details in divorce papers, but at least the woman is alive and can argue her case.

The second major reason why young wives get killed is because their parents promised too much and could subsequently not pay up. Some families offer 'dowry sweeteners' up front for the less than perfect daughter's most desirable match because it is seen as more meritorious to give freely than to be forced. Current research on this problem among Asians in Britains hows that it is not acceptable for the boy's family to demand dowry; instead there are silent expectations. This bargaining was vigorously opposed in ancient India, where in the best marriage form, the Brahma type, the bride herself was the main consideration. If some of today's parents offer the carrot of economic incentives to the boy's side, they not only violate ancient ideals about expectations of the bride, they also act in distinctly modern fashion, placing consumerist, status-focused concerns above the welfare of their daughter. Rather than fulfilling the familial obligations towards her by helping her to get married, they are using the daughter as a means for their own status games.

Thus, the main blame for today's escalation of dowry violence appears to fall on the girl's side. Many parents are using the strategy of 'dowry sweetener' to attract the best possible bridegroom for their daughter; many daughters want it that way. Through the marriage alliance, the girl's family buys status for the girl and for itself. Today, in a globalised 'marriage market', many more marriageable women are perceived to have 'undesirable' characteristics; they are too old, too educated, not beautiful enough, there are so many reasons to criticise. Dowry payments may then be used to entice a man into marriage with a woman who might be perceived, by both sides, as less than ideal. A lot could be said about less than ideal men as well, of course.

The key to solving the dowry dilemma, therefore, lies with the bride's family. In my view it has been far too convenient to wrap dowry discourses into feminist, anti-patriarchal slogans and to blame one sector of society, the 'male world', as though at the point of marriage it was possible to isolate that world from everything else. If we want to understand how dowry works and can be controlled, socially and legally, a simplistic gender war scenario makes no sense. The wife-givers of today are the wife-takers of tomorrow. Significantly, Indian anti-dowry law seems to understand this. But how effective is that law?

The legal dimension of dowry control

Indian dowry control law is still very young but we are beginning to see significant changes in the application of that law, confirmation of a judicial strategy, particularly at the highest level, of toughening up against dowry bullies and murderers. The first major piece of national legislation in India which sought to outlaw dowry transactions was the Dowry Prohibition Act of 1961. This Act has undergone important amendments in 1983,1984,1985 and 1986. This close sequence reflects desperate attempts during the 1980s to counteract the escalation of dowry murders. Since 1986, there has been no further legislation and the emphasis has shifted to the courts, especially the Supreme Court. The judicial involvement shows a progression from male collusion and judicial condonation of the procedural tricks of lawyers during the early 1980s to increasingly outspoken judicial criticism of the dowry evil. It appears that Indian judges have finally accepted their moral and constitutional duty to activate the anti-dowry law. Whether this is portrayed as human rights protection, or a matter of public interest, or pro-women activism does not matter, what counts is that the most judges in the superior courts now take a definite anti-dowry stance and are ready to punish perpetrators of such evils in the harshest possible terms.

The Dowry Prohibition Act of 1961 started off, by common consent, as a dead letter. There was no reported case until 1975. The Act states that its purpose is "to prohibit the evil practice of giving and taking of dowry", seeing dowry as a social problem. The anti-dowry law is therefore, an educative measure, saying in its preamble that "it is .... felt that a law which makes the practice punishable and at the same time ensure that any dowry ,if given, does ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil". This candid statement admits at once that the law makers never envisaged that this law would be followed to the letter. While this is typical of much of modern South Asian legislation, it is equally typical that the law therefore provided for its own violation. Consequently, S.6 laid down that any dowry shall be for the benefit of the wife or her heirs. But the matter does not stop there: the law also takes the next logical step and provides for cases in which even this particular rule is violated and those who hold property in trust for the woman fail to deliver it to her. This reflects a remarkable anticipation of double violation of the law.

Dowry is defined in S.2 as "any property or valuable security given or agreed to be given either directly or indirectly............at or before or after the marriage as consideration for the marriage.", while Ss. 3 and 4 of the Act specify the penalties for giving, taking or demanding dowry. Further sections made the offence non-cognizable, bailable and non-compoundable, indicating a softly-softly approach to the criminalisation of dowry offences. Because of the absence of case law for almost 20 years, there was a strong call for making only the demanding and taking of dowry an offence. The main argument was that making both sides culpable, putting them in pari delicto, prevented the wife givers from starting any legal action, since they themselves were guilty under the law. The obvious remedy would have been to decriminalise the giving of dowry, but tills step has never been taken.

The Criminal Law (Second Amendment) Act, 1983 focused on violence against women during the first seven years of marriage, empowering law enforcement agencies to gain evidence of dowry murders. More specifically, the Dowry Prohibition (Amendment) Act, 1984 sought to tackle the unsatisfactory definition of 'dowry', reacting to several early cases which had shown potential loopholes. Dowry "as consideration for the marriage" now reads "in connection with the marriage", a wider definition, basically covering any transaction in relation to the marriage. Higher penalties for violation of the law are another significant amendment, a definite toughening, stipulating minimum jail sentences of six months and a maximum of two years, as well as an additional fine, no longer discretionary, up to Rs.10,000/- or the value of the dowry, whichever is higher. This is evidence of a tougher criminal law approach. The 1984 Act also sought to tighten the rule system concerning the transfer of dowry property to the woman and provided, in reflection of public interest strategies, relaxed rules on locus standi for complainants from the social work area. Officers under the Act were now also made cognizable.

The Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 were introduced to improve the evidentiary position, since husbands and their families would frequently argue that disputed items had been given to them rather than the woman. Lists of presents are to be maintained and signed by both sides. Finally, the Dowry Prohibition (Amendment) Act, 1986 represents a further toughening, with a clear recognition that dowry may be given or demanded at any time after the marriage. A recent case confirms that 'dowry' covers even demands made before the marriage (S. Gopal Reddy AIR 1986 SC 2184). In S. 6 of the 1961 Act, the transfer mechanisms have been further strengthened and the punishments in S. 3 were further increased to a maximum jail sentence of five years and a maximum fine of Rs.15,000/- or the value of the dowry, if higher. The 1986 Act also bans dowry advertisements (S.4A) and S.8B introduced Dowry Prohibition Officers. In addition,' a new S. 304B, dealing with deaths, was inserted into the Indian Penal Code of 1860. These amendments have given the judiciary powerful weapons to punish violations of the dowry prohibition law. It seems that the statute law is now in place; it is tough and meancing. But will society take any notice of this law? It appears now that the persistence of dowry murders has shaken the judiciary into some activism.

A trickle of cases on dowry appeared in the Indian law reports by 1980s. Some of these are horrible cases; defence lawyers and their clients almost got away with murder. In Daulat (1980 Cri. L.J. 1171), the accused did not succeed in pleading that dowry demands by letter were not dowry demands. Successful tricks are reported in Inder Sain (1981 Cri. LJ 1116), while the wife in Kiran Kapoor (AIR 1982 Del. 543) I was slapped on the wrist for complaining that her husband and his family had demanded more dowry. The atrocious case of Vinod (AIR 1982 P & H 372 FB), overruled in 1985, confirmed the patriarchal inclinations of North Indian Judges, holding in effect that women are owned by men.

By 1983, a set of three cases resulted in a Supreme Court verdict which significantly improved the definition of dowry and led directly to the 1984 Amendment Act. In Shankarrao (1983 Cri. LJ 269), the Bombay High Court still held that an unfulfilled demand for dowry was not an offence under the 1961 Act. In Lajpat Rai Sehigal (1983 Cri. LJ 888), where the wife had died of burns, it was held on the facts that partly unfulfilled demands were still demands, and the husband's appeal against conviction was thrown out. The Supreme Court, in the appeal case arising from Shankarraro (see Jadhav AIR 1983 SC 1219), overturned the Bombay High Court's clearly unsatisfactory verdict and signalled judicial toughening up. Mixed messages continued to be given by the Supreme Court at this time, as evidenced in two fascinating cases. Pratibha Rani (AIR 1985 SC 628) was a woman's case on female property rights (stridhanam) which is widely used today, even in Britain, as a key precedent helping women to establish property rights against men. This case contains extremely strong criticism of The Punjab & Haryana High Court's handling of Vinod (see above) and reaffirmed the importance of S. 6 of the Dowry Prohibition Act for women's ownership of property. On the other hand, a strange case on the human rights of convicted dowry murderers could be taken to suggest that the human rights of the present and future victims of dowry murders are less important than those of their killers.[5]

By 1988, many Indian courts, and certainly the Supreme Court, began to take a much stricter approach to dowry offenders. Making dowry demands became now a ground for divorce under the Hindu Marriage Act of 1955, fitted under the wide umbrella of cruelty. [6] On the other hand, if a husband made dowry demands and threw the wife out of the house if she did not comply, he could not claim breakdown of the marriage, because he would be taking advantage of his own wrong. The explicit application of the 'own wrong rule' in Ashok Kumar (AIR 1989 Del. 121) shows that also the High Courts of North India have become sensitised to dowry issues.

More recent cases have been driving home an increasingly unambiguous judicial message to dowry murderers and men who drive their wives to suicid : Punishments will be tough and the courts will be unwilling to tolerate prevarications. In State (Delhi Administration) (AIR 1986 SC 250), neighbours had unsuccessfully sought to rescue a burning woman. The Delhi High Court, almost unbelievably, had acquitted the accused but the Supreme Court sentenced the husband and other members of the family to life imprisonment. This was also a landmark decision on the difficult question of how to treat a victim's dying declaration. While in some cases, where a suicide occurred rather than murder, the evidentiary position was less than clear, [7] the Supreme Court has awarded deterrent life sentences in several cases to a murderous mother-in-law, [8] the husband, father-in-law, and sister-in-law, [9] and a husband who prevented neighbours from rescuing his burning wife (Ganeshlal (1992) 3 SCC 106). In this case, the husband appealed against the life sentence imposed by the High Court but it was confirmed. It seems that the other family members were lucky to get away because this husband acted so very obviously to further his evil design.

In State of U.P. (1992) 3 SCC 300), a husband had been acquitted of a dowry murder which occurred in 1971, by an unreported High Court decision of 1979. When the case was again taken up after all these years, the Supreme Court brushed aside all suggestions that this old matter should be left alone and awarded life imprisonment. The court clearly expressed its opinion that non-action would have amounted to perpetration of injustice. One cannot emphasise enough that ten years earlier, this kind of decision would have been unthinkable. The most recent position appears to be, therefore, that the Supreme Court has become extremely alert to issues concerning dowry murder and that the High Courts, too, are now pulling their weight. The Kerala High Court, hardly ever-lacking alertness when it comes to protecting women, has produced an excellent judgment in State of Kerala (1994 (2) KLT 700), considering in detail the appropriate procedures to be followed in cases of suspected dowry deaths. This is a model of procedural structuring, designed to save judicial time and to have maximum effect on the ground.

While dowry murder cases inevitably demand judicial reactions to social practices, most judges have been reluctant to make explicit comments about how, in their view, the menace of dowry may be controlled In Ashok Kumar (AIR 1990 SC 2134), at p. 2136, however, R.M. Sahai J. launched into a lecture on the desirability of social ostracism to curtail what he called the "increasing malady of bride burning". Significantly, the judge also confirmed, in no uncertain terms, that the poor never resort to that kind of crime. His focus on neighbourhood vigilance and social ostracism echoes very closely the views of the activist writer Madhu Kishwar.[10]

While the courts can busy themselves with putting dowry murderers behind bars forever, the critical question remains whether the new toughness of the law will actually have any deterrent effects. It is difficult to assess this from a desk in London, but the apparent progress in the negative reaction of the Saw and its personnel to the continuing phenomenon of dowry murders cannot be overlooked. Unlike judicial fora in Britain (and, one suspects, in the USA and Canada), the Indian superior courts have now taken explicit cognizance of the fact that some South Asian women are murdered every day. I suggest that this public recognition of the evil was a crucial first step in tackling the dowry problem, a step which the legal system in Britain still has to take. [11] As far as India in concerned, at least, it is no longer correct to assert that the Indian judiciary, which remains of course a male-dominated elite, plays chauvinistic collusion games with women's lives in the complicated scenario of the dowry abolition law.

Problems persist, however, at the lowest level of implementation. New research, it appears, will now need to be conducted on why it is that so few cases of dowry murder actually result in prosecutions in the first pi ace. It is evident that considerable social and legal collusion occurs at that level to avoid meaningful redressal of dowry attrocities. Thus, there is progress in the legal remedies to curb dowry problems, but by no means enough. It is manifestly not sufficient for the law at its highest level to pronounce on the evils of dowry extortion and to penalise the offenders. Going by the gruesome statistics of daily dowry murders in India, there is no excuse for prolonged lack of activism in this field.

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Foot Note

1See Menski, Werner F. (ed.): Dowry: The South Asian dimension. Stoke-on-Trent 1998 f = GEMS, Ethnic Minority Studies at SOAS, No.5 ] (forthcoming).

2Sen Bisakha : 'Why does dowry still persist in India? An economic analysis using human capital'. In Menski as note 1.

3. 'Hooja, S.L. [1969]: Dowry system, New Delhi, p. 222.

4. Sharma, Ursula[1984]: 'Dowry in North India: Its con sequences for women'. In: Hirschon Renee (ed.): Woman and property - woman as property. London, pp. 62-74; Kishwar, Madhu [1988] : 'Rethinking dowry boycott'. In: No.48 Manushi, pp. 10-13.

5. See Attorney General (AIR 1986 SC 467), which is such a brief case report that it does not make sense without the help of press clips published at the time. The public execution of dowry murderers was stopped by the Supreme Court on grounds of violation of their rights as prisoners, while the Rajasthan High Court had clearly wanted to set a public example of tough treatment for dowry murderers.

6. The leading case on this is Shobha Rani AIR 1988 SC 121 and (1988) 1SCC105, followed for example in Rajani 1989 (1) KLT 234.

7. In Wazir Chand (AIR 1989 SC 378), dowry demands had been made, but it could not be established with certainty that the accused had murdered the woman rather than driven her to suicide.

8. In Paniben (1992) 2 SCC 474, the young woman's dying declarations were fully accepted.

9. In State of U.P. (1992) 2 SCC 86, where again a High Court had acquitted the accused.

10. See in particular Kishwar, Madhu [1990]: "Women's organisations. The pressure of unrealistic expectations'. In No. 59 Manushi, pp. 11 -14.

11. 'There have been a number of recent dowry cases in English courts, but these cases somehow do not get reported, so that the problems remain, as it were, 'under cover'.

Comment on 'A Comment on Mathew v. Saramma'

(By Yesudasan Varghese, Advocate, Trivandrum)

This is with reference to 'A comment on 1995 (1) KLT 61' by V.K. Sathyavan Nair, Advocate, Kottayam, published on June, 19 in 1995 (1) KLT, expressing genuine doubts as to the correctness in the decision of D.B. of the Kerala High court in the matter of the second proviso to S.33 of the Evidence Act and advocating for a second look. My comment is strictly confined to the said article without going deeply into any of the cases cited therein.

At the outset, my learned brother Sathyavan Nair seems to have narrowed the meaning of 'adverse party' in the context of Ch.II of the Evidence Act. I am of the view that the term 'adverse party' as used in the proviso secondly of S.33 must have a dual meaning firstly a party who is adversely affected by the evidence in the former proceeding and secondly, the party against whom such evidence is sough t to be used in the latter proceeding. And if the same party has had both the right and the opportunity to cross-examine in relation to that evidence, then notwithstanding whether or not the right has been exercised or the opportunity utilised, such evidence can be used against that party in the subsequent proceeding.

Generally speaking 'adverse party' includes parties on both sides. But for the purposes of the Evidence Act the term means and includes any party against whom the evidence is tendered or who is adversely or unfavourably affected by such evidence. Occasions are not rare when a witness may depose against the party calling him to depose. Then the party has me protection under the provisions of S.154 of the Act. However, that protection is not as a matter of right but by discretion of the Court enjoyed under S.154 does not extinguish the prohibition under S.33 of the Act.

In Shri. Sathyavan's illustration, if C's statement was favourable to B to a certain extent, then it was certainly unfavourable or adverse to A to that extent thus making A 'the adverse party' though C was examined as A's witness. I humbly advocate that it is not the witness-factor that decides the 'adverse party' for the purposes of the Evidence Act, but the evidence-factor that decides it. If the evidence tendered is unfavourable to a certain party, then, naturally, that party becomes 'die adverse party'. So in my learned brother's illustration A can lawfully raise the objection in the subsequent proceeding that C's statement in the first proceeding is inadmissible in the latter. The position is the same if in the first proceeding B's witness gives evidence unfavourable to him which is sought to be proved against himself in the subsequent proceeding. Thus the principle of reciprocity is well intact and not at all impaired. 'Is it an illogical, unjust and unreasonable doctrine?'

So, 'the adverse party in the first proceeding' occurring in the second proviso of S.33 of the Evidence Act can only mean the party adversely or unfavourably affected by the evidence in the first proceeding and against whom such evidence is sought to be used in the subsequent proceeding. The Hon'ble Kerala High Court has rightly observed that if the Rajasthan view is accepted then the proviso itself was quite unnecessary.

1994 (2) KLT 47 and 1996 (1) KLT 349

 v. 

Article 320 of the Constitution of India

(M.R. Rajendran Nair, Advocate, Ernakulam)

Can the Public Service Commission advise Candidates against a vacancy which arose during the currency of a ranked list, eventhough the vacancy is reported to the Public Service Commission after the expiry of the list? Can the Public Service Commission advise candidates against vacancies arising on account of non-joining of candidates already advised, if the non-joining is made known to the Public Service Commission after the expiry of the ranked list?

2. The answer to the first question is in the negative as per the judgment of Full Bench of Kerala High Court reported in 1994 (2) KLT 47 (Vimalakumari v. State). The second question is also answered in the negative by a Division Bench in the decision reported in 1996 (1) KLT 349 (Babu v. Public Service Commission).

3. It is submitted that both the decisions are wrong and contrary to the Art.320 of the Constitution of India and relevant provisions of the Public Service Commission Rules of Procedure.

4. According to Art.320(1) of the Constitution, it shall be the duty of the Public Service Commission to conduct examination for appointments to the Services of the Union and the Services of the State respectively. The Public Service Commission shall be consulted on various matters including all matters relating to methods of recruitment to civil Services and it shall be the duty of Public Service Commission to advise on any matter so referred to them. The Kerala Public Service Commission Rules of Procedure, is a set of procedural rules and obviously none of the Rules shall be understood in derogation of the constitutional duty expressly imposed by Art.320 of the Constitution of India on Public Service Commission. R.13 of the Public Service Commission Rules of Procedure prescribes the maximum period for which a ranked list shall remain in force. R.14 reads as follows:

"The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable".

5. The rules are silent regarding the time when the vacancies shall be reported to, or advise shall be made by Public Service Commission. But it is mandatory that the Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked list are kept alive. The Rules do not put any embargo on the appointing authority and the Public Service Commission regarding the time for reporting the vacancies or regarding the time for advising. The only condition is that the vacancies reported must be for the period during which the ranked list are kept alive. In Vimalakumari's case, a Full Bench of Kerala High Court held:

"If no request is made by the State to the Public Service Commission for advising candidates during the currency of a list, the Court cannot compel the Public Service Commission to advise candidates after the expiry of the list".

It was also observed that giving such a direction will be clearly violating the statutory rules. But nowhere in the judgment reference is made to any provisions of statutory rules which prohibits Public Service Commission from advising a candidate against a vacancy which arose during the currency of the list, request for such advice not being made during the currency of the list. The conclusion of the Full Bench run counter to the constitutional mandate contained in Art.320 and the object and purpose for which Public Service Commission is constituted. In the decision reported in ILR 1982(1) Ker. 346 a learned single Judge rightly held that the Court had not only the right but also the duty to ensure that the appointing authority did not circumvent its statutory obligations by delaying and defeating the rights of selected candidates. The Full Bench found it difficult to agree with that observation for two reasons:

(1) a direction will be violative of the statutory rules.

(2) mere inclusion in the rank list does not give a right to the post or to be appointed.

Here again the pertinent issue as to whether advice can be made by the Public Service Commission against a vacancy which occurred during the currency of rank list, but reported after the currency of list was not pointedly considered in the light of R.14 of the Public Service Commission Rules of Procedure.

6. In the later decision reported in 1996(1) KLT 349 a Division Bench of Kerala High Court held as follows:

"Prior to the date of the expiry of the list, namely 15.6.1993, appointing authority reported 115 vacancies. To fill up those vacancies, candidates included in the ranked list were advised. On such advise, the vacancies reported to the Public Service Commission have been satisfied. It was only thereafter, i.e., after the expiry of the list on 15.6.1993, non-joining duty were reported to the Public Service Commission. Those vacancies so reported can only be treated as vacancies reported to the Public Service Commission after the expiry of the ranked list. To fill up those vacancies reported after the expiry of the ranked list, the list which had already expired cannot be operated on. This legal position is settled by the Full Bench decision in Vimala Kumari v. State, 1994 (2) KLT 47".

7. In Para. 3 of the judgment, it was emphasised "once the advice is issued, vacancy stands extinguished".

The reasoning and conclusions will not stand scrutiny. A vacancy may arise either on account a new sanction or on account of death/retirement/removal/promotion of an existing incumbent. That vacancy can extinguish only when a person appointed joins duty or when the post is abolished. Merely because an advice is made or even when an appointment order is issued the vacancy will not get extinguished. If the theory of vacancy extinguishing on advice is accepted it will lead to a situation where the appointing authority will not be able to appoint even the candidate advised because once the vacancy is extinguished no appointment can be made.

8. The object of the Rules, it cannot be disputed, is to make appointments to the vacancies existing and arising during the currency of the ranked list, and unless the appointing authority takes a bonafide decision to the contrary he is bound to fill up the vacancies in accordance with rules. An interpretation of the provisions, not warranted by any express words therein, cannot be adopted to defeat the objects and purpose of the provisions. With great respect it is submitted that the conclusions in the two judgments cited above are not warranted by the plain words in Art.320 of the Constitution of India and R.14 of the Kerala Public Service Commission Rules of Procedure. Since R.14 of the Public Service Commission Rules of Procedure makes it obligatory on the Commission to advice candidates for all the vacancies reported and pending before them and the vacancies, which may be reported to them for the period during which the ranked list are kept alive, it was unnecessary for the Bench to strain too much and come to an opposite conclusion. The words "for the period during which the ranked lists are kept alive" in R.14 qualified the word "vacancies' and not the word "reported'.

9. Procedure is always designed to facilitate compliance with substantive provisions, and thereby to facilitate justice according to law. To say that even when the appointing authority delays reporting of vacancies and thereby denies the constitutional guarantee of equality of opportunity in matters relating to employment, the High Court exercising power under Art.226 cannot issue appropriate directions is to attach too much importance to the form at the cost of substance. On a plain reading of the constitutional provisions and the provisions in the procedural rules it can be safely concluded that all the vacancies existing and arising during the currency of the ranked list can be filled up, even if the vacancies are reported to Public Service Commission after the expiry of the ranked list. In any case, once the vacancies are already reported, the short fall due to non-joining can be treated as vacancies already reported.

10. It is submitted that both these decisions will require reconsideration by a larger Bench.

The March of Law

(S. Parameswaran, Advocate, High Court of Kerala, Ernakulam)

1. Though conceptually, traditionally and notionally, it is the Legislature which makes the Law, what we see in actual practice is that it is judge-made law that holds the field. Hence, the importance of the judicial decisions of the Apex Court and of the decision-making process.

2. There is a line of thinking that judicial activism has a role to play only in Common Law Jurisprudence and has hardly any place in statute-covered areas. Petric Delvin says, "In sum, in the Common Law, there is great warrant for judicial lawmaking; in statute law, there is not. In the Common Law, development is permitted, if not expected; in statute law, there must be at least a presumption that Parliament has on the topic it is dealing with, said all that it wanted to say" (" The Judge " Petric Delvin, page 10). But, as Justice V.R. Krishna Iyer, who is the greatest activist Judge India has so for seen, feels, judicial activism is a device to accomplish the cherished goal of social justice. He says, "After all, social justice is achieved not by lawlessness process, but legally tuned affirmative action, activist justicing and benign interpretation within the parameters of Corpus juris" (In Search of Social Justice, V.R. Krishna Iyer, P. 13). And again, Iyer, J. says, "Project Social Justice is the Constitutional promise, the performance of which assigns an activist role to the Court and this is radical departure from the conventional judicial function of British and even American Judges" (Law, Society and Collective Consciousness, V.R. Krishna Iyer, P.8). It was Lord Halifax who said in his "Political Thoughts and Reflections', "Laws are generally not understood by three sorts of persons, i.e., by those that make them, by those that execute them and by those that suffer if they break them". This observation, though not coining from a cynic, is not serious or seminal.

3. Law has to be developed by judicial creative interpretation to suit a situation. As Lord Denning observes, "Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But, it is a notion which is now being discarded everywhere. Every new decision or every new situation - is, a development of the law. Law does not stand still. It moves continually. On this is recognised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect - thinking of the structure as a whole -building for society, a system of law, which is strong, durable and just. It is on his work that civilised society itself depends". (Quoted by V.R. Krishna Iyer, Judge in In Search of Social Justice).

Former Apex Court Judge, Justice H.R. Khanna. opines, "Judges are bound within the walls, lines and limits that are often unseen by the layman - walls, lines and limits built from the heritage of law" (Law, Men of Law and Education - Justice H.R. Khanna, P. 11).

4. Immensely complex and interwoven problems have gravitated to the Courts in our country and have been duly adjudicated, in the year gone by. In fact, even a cursory glance at the agenda of our apex Court will show that virtually everything is potential fodder for courts in Modern India, ushering in the process a judicial review revolution. Modern legal culture is demonstrably indicative of the shrinking zones of immunity to law, or immunisation from law, and the disappearance of zones of immunity is at the core of the expansion of law. And our Judges constantly influence, alter, modify and invent doctrines and applications of law, in the justice delivery process and system.

5. Dealing with the powers of the Civil Court to grant ad-interim injunctions, the Court construed the provisions of Order XXXIX Rules 1 to 3 and observed mat as a principle ex-parte injunctions could be granted only in exceptional circumstances. Relying on, and referring to, its earlier decisions in United Commercial Bank Ltd. v. Bank of India (1981) 2 SCC 766 and Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3 SCC 161 & 176) the Court gave certain guidelines and stressed the need for care, caution and circumspection in matters of granting injunction against corporate bodies in its functioning.

6. In regard to the Civil Procedure Code, the apex Court emphasised that procedure is the handmaid of substantive justice and felt that in the case before it, it has run its rooster, in Bhanwarlal v. Sathyanarayanan and another (JT 1994 (6) SC 626). The Court found fault with the Execution Court which, without passing any orders after deliberation in an execution application tiled under Order XXI, R.97(1) of the CPC, directed the applicant to make a fresh application. It also found that the High Court committed grievous error of jurisdiction and patent illegality in treating the application filed by the appellant as barred by limitation and res judicata. The Execution Court was directed by the Supreme Court to conduct an enquiry, into the application for removal of objection for delivery of possession of the property covered by the decree and pass appropriate orders according to law.

7. One of the most significant decisions of the Venkatachalliah Court was the one in the Ayodhya reference where the Apex Court deftly, discreetly, diligently and dexterously put the ball in the Executive's Court in a dignified manner. The political legerdemain of the powers-that-be to pass the bucks for the messy mire of the Mandir-Masjid controversy could not cut any ice with the clever and confident Apex Court. One is reminded of the words of the Woman Judge of the U.S. Supreme Court in this context. Justice Sandra Day O' Connor said of the U.S. Supreme Court "To put it differently, the Court is somewhat akin to a fire department. When Congress or the Executive Branch or an individual State lights a new lire, we are inevitably summoned to attend to the blaze. Some litigants will ask us to fan the flames, others will demand their extinguishment and still others will request only that the fire not be allowed to spread. But, unlike most fire departments, justice moves slowly, so we usually arrive on the scene some years late. Once there, however, we usually must linger for a while" (Women and The Constitution - A Biennial Perspective - Sandra Day O' Connor in "Women, Politics, and the Constitution" edited by Naomi B. Lynn).

8. In the Ayodhya case, the apex court wisely steared clear of controversies by refusing to be dragged into the quagmire of politics. It probably had in mind what Constitutional Authority, Leonard Levy, described "non-proferentialism is a plausible but fundamentally defective interpretation of the Establishment clause to prove that its framers had no intention of prohibiting government aid to all denominations or to religion or a non-preferential basis". We are a nation with a diverse quilt of political and religious traditions. Some of those traditions do not translate well or inspire emulation today. The Court realised that an unswerving adherence to the principles of justice, secularism and liberty was needed and that always requires people to champion the cause of these noble ideals are to be preserved for posterity. The Court demonstrated the capacity for, and the need of, even-handed treatment to all who believe, doubt or disbelieve -a refusal on its part to weigh (lie scales of Private or State choice. The Supreme Court thus effectively set at naught the Executive's attempt to coax, cajole or compel the judiciary to take a decision entailing the use of the secular authority of the Government to coerce a preference among different beliefs.

9. By this tactful and tenable decision, the Apex Court proved that Courts sit to determine questions on stormy as well as calm days.

10. The concept of secularism and its connotation and contents were expatiated by the Supreme Court in Shri. Santhosh Kumar and others v. The Secretary, Ministry of Human Resources Development & another (JT 1994 (6) SC 454). The contention raised was against a direction given to the Central Board of Secondary Education for including Sanskrit as an elective subject in the syllabus of Secondary Education. The court felt that learning of Sanskrit was undoubtedly necessary for protection of our culture and heritage as without learning of Sanskrit, it is not possible to decipher the Indian philosphy on which our culture and heritage are based. Teaching of Sanskrit, alone as an elective subject can in no way be regarded as against secularism and would not militate against the basic tenet of secularism. The court could not appreciate the stand taken by the Board justifying the non-inclusion on the untenable ground that if the Central Board of Secondary Education were to do so. it would have to make facilities for learning of Arabic and Persian. The Board had been entrusted with the onerous duty of educating the youths of this country "in whose hands quiver the destinies of the future". It has been well-recognised that it is this education which lays the foundation for a full and intense life. So it must carefully keep alive the spark of curiosity leading into beautiful bright flames whenever it comes. This early education which widens the contacts of the child or the youth with the surroundings of the world, and with every new and fruitful contacts with the world of things, the world of men and the world of ideas, the life of the young becomes richer and broader. It is the early education which seeks to broaden the mind by exposing the learner to the world of thought and reflection, which can inspire him with lofty idealism giving him the glimpses of a good life which a worthy education is capable of bringing. It is well-known that Sanskrit is the mother of all Indo-Aryan languages and it is this language in which our Vedas, Puranas and Upanishads have been written and in which Kalidas, Bhavbuthi, Banbhatta and Dandi wrote their classics. Teachings of Sankaracharya, Ramanuja. Madhwacharya and Nimbarkand Vallabhacharya would not have been woven into the fabric of Indian Culture if Sanskrit would not have been available to them as media of expressing their thoughts. Placing reliance on (he report of the Sanskrit Commission set up by the Government of India submitted in 1957, the Court felt that Sanskrit is the embodiment of Indian Culture and Civilisation. Far from being an act against secularism, the teaching of Sanskrit is a worthy thing. Our Constitution requires giving of fillip to Sanskrit because of what has been stated in Art.351, in which, while dealing with the duty of the Union to promote (he spread of Hindi, it has been provided that it would draw whenever necessary or desirable for its vocabulary, primarily on Sanskrit. Encouragement of Sanskrit is necessary in the light of its being one of the Indian languages included in the Eighth Schedule to the Constitution. The Court directed the CBSE to amend the syllabus including Sanskrit as an elective subject within three months from the date of judgment. Needless to say, the judgment of Hansaria, J. is a trend-setter, and should be hailed for upholding the importance of the ancient Indian Language of Arsha Bharat, which has been sought to be assigned to the limbo of oblivion through a Westernised Educational System by the Rulers.

11. While no amendments worth the name were brought in most of the enactments during the year gone by, a catena of cases has been decided by the apex Court during the period and not a few of them demonstrated a new approach to problems concerning which legal position was considered to be well settled. But, this writer cannot help expressing the view that even these decisions were more notable for their conceptual re-construction rather their exhibition of instinct and originality. The Court of course, has given due weight to the changing economic and social scenario, and, accordingly, tried to adopt its approaches to the problems, changing old norms and re-examining age-old interpretation and legal doctrines and dogmas.

12. Human rights jurisprudence flew its flag high in the Supreme Court in a few cases. A couple of the more important ones may be referred to. In Arvinder Singh Bagga v. Stale of U.P. and others (JT 1994 (6) 478) the complaint was against the torture inflicted by the U.P. Police on persons during illegal custody and detention, and the humiliation to which they were subjected. At the instance of the Court, the District Judge, Bareilly submitted a report indicating the Police for high handedness, for uncivilized behaviour and torturc. The court appreciated the good work done by the District Judge, who held a thorough enquiry into the matter. The Court observed that the torture was not merely physical, but mental and more psychological calculated to create fright to make persons to submit to the demands of the police. The records revealed and that there was fabrication of evidence and illegal arrest without personal knowledge or credible information that the arrested persons were involved in a cognizable offence. It expressed concern at the illegality of the order of arrest which was not contemplated by S.65 of the Criminal Procedure Code and which is a blatant abuse of the law. Justice Mohan, was pained to note that such things should happen in a country which is governed by the rule of law. The Court expressing its strong displeasure of the concerned police officers, issued a direction to the U.P. Government to take immediate steps to launch prosecution against the police officers involved in the affair and directed the State to pay monetary compensation to the illegal detainees.

13. More stringent were the observations, and severe the indictment, of the Supreme Court minder Singh v. State of Punjab & others (JT1994 (6) SC 146),which was a Habeas Corpus Petition filed by the appellant in relation to the abduction of seven persons in October 1991 by a police party in a police van, their being lodged in various police stations till the 28th December, 1991 and their disappearance later. Curiously enough, the Director General of Police, Punjab filed an affidavit requesting for the disposal of the case as infructuous inasmuch as the FIRs have been filed and the trial was to commence soon. Chief Justice M.N. Venkatachaliah and Justices A.S. Anand and S.P. Bharucha wondered.why no explanation was given for the delay of 18 months in submitting a report and why it was submitted by the S.S.P. and not the DIG, Jullundhar. Considering the leisurely manner in which the Punjab Police acted, the Court felt deeply concerned about the safety of the citizenry at the hands of such an errant, high-handed and unchecked police force and observed that the request of the DGP was outrageous. The Court felt unwilling to entrust the investigation of abduction and presumable liquidation of the seven persons to the Punjab Police and directed the Director of CBI to conduct personally the enquiry within four weeks, if necessary, employing the services of a Dy. Director CBI and above. The court further directed that the report must be sent in a sealed cover.

14. The spirit of respect for human rights was reflected in yet another decision of the Supreme Court in Supreme Court Legal Aid Committee representing under trial Prisoners v. Union of India and another (JT 1994 (6) SC 544). The Court was concerned with Ss.36, 36A, 36B, 36C and 36D of the Narcotics Drugs & Psychotropic Substances Act, 1985 and S.309 of the Code of Criminal Procedure and Articles 14, 19 and 21 of the Constitution. Expressing displeasure at the long detention and greater delay in disposal of cases under the Act, the Court comprising Justices A.M. Ahmadi and B.L. Hansaria issued directions and guidelines, keeping in view the power of the Special Judge to grant bail under S.37 or cancel bail if the accused is found to misuse the bail granted. The court said that it was conscious of the fact that the menace of drug trafficking has to be controlled by providing stringent punishments and those who indulge in such nefarious activities do not deserve any sympathy. But, at the same time, it could not be oblivious to the fact that many innocent persons may also be langushing in jails if one recalled to mind the percentage of disposals on plea of guilt is bound to be small. The Court stressed the need for setting up sufficient number of Special Courts, immediately after the amendment of the Act by Amendment Act 2 of 1989, and recommended the State Government to set up Review Committees headed by a Judicial Officer preferably a retired High Court Judge with one or two other members to review the case of under-trials of long duration including those released under the present order and to recommend to the State Government which of the cases deserve withdrawal. The State Government can then advise the Public Prosecutor to move the Court for withdrawal of such cases. The Court recalled its earlier emphasis in a series of decisions that Arts.14, 19 and 21 sustain and nourish each other and any law depriving a person of 'personal liberty' must prescribe a procedure which is just, fair and reasonable, i.e., a procedure which promotes speedy trial. This was also the avowed objective of S.36(1) of the Act. The Court also kept in mind the interpretation placed on a similar provision in S.20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab. (1994) 3 SCC 569).

15. As the situation was reportedly equally grave, with varying degrees, in certain other States like the State of Andhra Pradesh, Assam, Kerala, Karnataka, Gujarat, Orissa, Bihar, West Bengal. Uttar Pradesh and Madhya Pradesh, the Court directed notices to issue to these States through their Chief Secretaries to furnish information in the proforma appended to the Judgment, to enable the Court to decide if similar action is called for, within four weeks, duly verified, to be carried by an officer of the concerned Department not below the rank of a Deputy Secretary. Judicial activism played its role having regard to the benign command of Art.21 of the Constitution in this case.

16. A land-mark judgment concerning right to life guaranteed under Art.21 of the Constitution and its relation with right to die in the light of S.309 IPC was considered by the Supreme Court in P. Rethinam/Nagbhushan Painaik v. Union of India and others (JT1994 (3) SC 392). The Court said, after considering suicide and the problems thrown up by it, through Hansaria, J. that S.309 IPC deserves to be effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again doubly, who suffered agony, would be undergoing, ignominy because of his failure to commit suicide. An act of suicide cannot be said to be against religion, morality or public policy and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit suicide causes no harm to others, because of which the States interference with the personal liberty of the concerned person is not called for. A prosecution for such an offence is par excellence persecution. What is required is not to prosecute the already tormented person, but to reach the soul to stir it to make it cease to be cruel. It is never too late to humanise our laws, observed the Court. Various social forces like economy, religion, and socio-economic status are responsible for suicide. S.309 IPC dealing with suicide violates Art.21 of the Constitution, and so it is void. By effacing S.309 the Court would be attuning this part of our criminal law to the global wave length, felt the Court. This judgment is a powerful moving document of incalculable contemporary and historic value.

17. Human rights found an effective spokesman in the Supreme Court in Joginder Kumar v. State of UP and others (JT 1994 (3) SC 423) arising from the illegal arrest, detention and removal to an unknown destination, of a person by the UP Police. In a Writ Petition filed by the detenu, the Hon'ble Supreme Court in a considered judgment in the broad background of Arts.21 and 22 of the Constitution held against indiscriminate arrest. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis of deciding which comes first- the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrested with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in Police lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and, perhaps, in his own interest, that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even as to the need to effect arrest. Denying a person his liberty is a serious matter. These rights are inherent in Arts.21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, the court specified certain important requirements.

18. The court directed the Directors General of Police of all the States in India to issue necessary instructions requiring due observance of the said requirements. The court further directed that departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.

19. In Attorney General of India etc. v. Amritlal Prajivandas (JT 1994 (3) SC 583 = AIR 1994 SC 2179) a Nine Judges Bench of the Surpeme Court upheld the validity of COFEPOSA and SAFEMA, upholding the legislative competence of Parliament in the interest of national security. It also held that the application of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) to the relatives and associates of detenus is not violative of the Fundamental Rights of the citizens guaranteed under Arts.19 and 21. The rationale of the decision is reflected in the beginning sentence of the judgment by Justice Jeevan Reddy, 'Till the wind of liberalisation started blowing across the Indian economic lands-scape over the last year or two, the Indian economy was a sheltered one".

20. The COFEPOSA case is one where the individual's civil liberties were dramatically curtailed for the sake of national order and in order to instil national loyalty in individuals.

21. The apex court's opinion in the COFEPOSA case clearly indicates that despite the dizzy heights to which it held aloft human rights, as can be seen from the cases referred to supra, it did not, and, hopefully, will not, allow its judicial activism to lapse into disguised imperialism.

22. It can be seen that police atrocities and jail jurisprudence and malpractices in law enforcement also took its toll of judicial time in the year that passed by. This came up for criticism from some quarters. But, as Lord Atkin observed once, "Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, eventhough out-spoken, comments of ordinary men" (Ambard v. Attorney-General for Triridad (AIR 1936 P.C. 136).

23. The scope and ambit of the right to privacy vis-a-vis Art.21 of the Constitution was considered in R. Rajagopal v. State of Tamil Nadu (JT 1994 (6) SC 514) by Justices Jeevan Reddy and Subas Sen. In this case, popularly known as the Auto Shanker biography case, the court held that under Art. 19(1 )(a) and 19(2) of the Constitution of India, the Press has the right to publish the life story of a private person subject to its being liable for consequences if it invades his right to privacy. Right to privacy is not enumerated as a fundamental right, but has been inferred from Art.21. It is an independent and distinctive conduct originated from the field of Tort Law. Once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by the press and the media. The Court added that in the case of public officials right to privacy is simply not available. If the petitioners in the case went beyond public records and published the life story of Auto Sanker without his consent or authorisation, they may be invading his right to privacy and liable for the consequences. Where the publication is proved to be false and actuated by malice or personal animosity, the defendant will be liable in damages. The Government or other organs exercising a Governmental power cannot maintain a suit for damages for defaming them.The remedy of the affected public official or public figure is only after the publication, and not before, the Court added.

24. The Press reporter's individual rights are subsumed by society's collective interest in justice. The journalists right does not translate into a societal benefit, but a society's right becomes a benefit for journalists as well. Our own rush to legalise private activities, to create a right to privacy, and even more zones of privacy, may be more a manifestation of our frustrations with officialdom the bureaucracy that now overshadows democracy, than it is private persons deliberate neglect of public issues. The media are not unoften menacing of solitude and seclusion, nor are these free of culpability in the national effort to protect individual privacy. Hence the verdict of the Supreme Court in Rajagopal does more than chill an individual's rights, it deepfreezes the individual's right against the media. Perhaps, the apex Court had in the background of its mind the New York Times case (New York Times v. Sullivan (1964) where the U.S. Supreme Court observed:—"Consider the case against the background of a profound national commitment to the principle that debates or public issues should be uninhibited, rebust and wide open".

25. As Justice Dougles insisted, the implicit right of privacy is not drawn from the blue. It emanates from the totality of the Constitutional scheme under which we live. We are also reminded of Justice Black, who dissented in Griswald in part because "Privacy is a broad, abstract and ambiguous concept which can easily be shrunken in meaning or enlarged beyond the simple language used by the framers of the Constitution".

26. The Battle of Waterloo found a place in the judicial peroration in Khoday Distilleries Ltd. v. State of Karnataka & ors. (JT 1994 (6) SC 588). Rejecting the contentions of the Breweries, the Justice Venkitachalliah Court, through Justice P.B. Sawant, observed that the State can impose limitations and restrictions on the trade or business in potable liquor and can create a monopoly either in itself or in the agency created by it for the manufacture, possession, sales and distribution of liquor as a beverage. Having regard to Art.47 coming under Chapter IV of the Constitution, the Court held that restrictions under Art.19(6) can be imposed by any subordinate legislation so long as such legislation is not violative of any provisions of the Constitution.

27. The excessive exuberance of Administrative Tribunals in the exercise of their jurisdiction was held under leash by the Court in Indian Council of Agricultural Research and another v. Smt. Shashi Gupta (AIR 1994 SC 1241). In that case, the Tribunal ordered appointment of the petitioner overriding the medical opinion of medical unfitness. Reversing the order, the Supreme Court said that the Tribunal exceeded its jurisdiction.

28. But, an instance of judicial back-sliding was presented by the Supreme Court in Environmental Law in Premier Granites and another v. State of Tamil Nadu & others (AIR 1994 SC 2233). The court held that R.39 of the Tamil Nadu Mineral Concession Rules, 1959 granting power to the State Government for grant of leases otherwise than in accordance with the Rules in the interest of mineral development and in public interest is valid. The Court also refused to read down the provision.

29. A decision of interest and immense concern to lawyers, was rendered in Bar Council of India and another v. Aparna Basu Mallick and others (AIR 1994 SC 13 34) where Ss. 24 and 49 of the Advocates Act, 1961 and R.1(1)(c) of Part IV of the Bar Council of India Rules, 1975 were considered and construed by the Court. It held that the Rule is not inconsistent with S.24. Justice Ahmadi, speaking for himself and M.M. Punchhi, J. held that non-collegiate-private students not attending law classes were not entitled to be enrolled as Advocates, reversing the decision of the Calcutta High Court.

30. Natural Justice is not a concept created by the Courts if by a sleight of hand; it is a conceptual reconstruction of the doctrine of audi alteram partem. It is not a shadowy concept without real substance and form, as was laid down by the Supreme Court in Kirpauk (1968 SCWR). It is a broad, not an abstract or ambiguous concept which can be easily shrunken in meaning or enlarged beyond limits. It is a meaningful concept forming the sheet-anchor of justice delivery in administrative jurisprudence, as has been made out by the Supreme Court in Vijaya Kumar Tripathy's case (Indian Express, Kochi Edition dated 29-12-1994). In that case, Tripathi, a member of the U.P. Civil Service (Executive Branch), was awarded a censure entry in his ''character roll" on the ground that while he was working as a Additional District Magistrate (Executive) in Varanasi District, he pressurised the carpet traders of the area to render financial assistance to the anti-Reservation agitators in 1989-90. He challenged it under S.4 of the U.P. Public Services (Tribunal) Act, 1976 and the Tribunal allowed his petition holding that the award of a vcensure entry' without making a full oral enquiry was violative of Art.311 of the Constitution. The U.P. Government was worsted in its challenge of the order before the Allahabad High Court and so i l appealed to the Supreme Court. Dismissing the appeal, Justices P. Jeevan Reddy and Sujatha V. Manohar observed:—"The normal rules enunciated by this Court is that whenever it is necessary to ensure against the failure of justice, principles of natural justice must be read into a provision. Such a course, of course, is not permissible where the rule excluded, either expressly or by necessary intendment, the application of principles of natural justice, but in that event, validity of rule may fall for consideration. Consistent with the above rule, we must hold that ordinarily speaking, an opportunity to show cause against the proposed imposition of penalty of censure should be given to the concerned employee before its imposition. Censure is a penalty.lt cannot also be said that it has no adverse consequences, it has. It would certainly be open to the competent authority in a given case to provide a post-decisional opportunity instead of prc-decisional hearing. There may, indeed, be exceptional situations where the principles of natural justice may have to be dispensed with but they are an exception. It is upto the competent authority to decide whether, in the given circumstances, the opportunity to be provided should be a prior one or a post-decisional, opportunity. Normal rule, of course, is prior opportunity."

31. In an important decision rendered in the Director of Inspection & Audit and others v. C.L. Subramanyam (JT 1994 (6) S.C. 50), the apex Court held that sanction of the Government under S. 197 of the Cr. P.C. is required to prosecute Government Officials for alleged defamatory statements against the petitioner. The allegation was that defamatory statements were made in the Counter-affidavit filed by the officials in a petition filed by the petitioner challenging the transfer. The Court observed that the counter-affidavit was filed in connection with the transfer of the petitioner and the averments therein cannot be said to be unconnected or not reasonably connected with the officials duties. This was done by them acting or atleast purporting to act in discharge of Official duty. The Court further observed that the mandatory character of protection offered to a public servant is reflected in the bar on the exercise of the power of the court to take cognisance of any offence without Government sanction under S. 197 of the Crl. P.C.

32. In corporate jurisprudence a couple of important decisions of the apex court made a valuable addition, in P. Punniah & others v. Jaypure Sugar Co. Lld. & Others (JT 1994 (3) SC 508). S. 399 (3) of the Companies Act read with Ss. 397 and 398 was interpreted by Justice Jeevan Reddy on his behalf and Justice Hansaria. To comply with the requirement of 1/10th share-holding for purposes of consent, the Court held that it could be given by a General Power of Attorney-holder of the share holder or member. Section 399 or sub-section (3) thereof does not either expressly or by necessary implication indicate that the consent to be accorded thereunder has to be given by the member personally. The power-of-attorney-holder could have himself joined the application under Ss.397 and 398 in the name and for and on behalf of the shareholder who granted the power. No question of consent would or could have arisen in such a case. The Court added that there is no warrant for holding that S.399(3) is an exception to the normal rule of agency, namely, that whatever a person can do himself, he can do through his agent, except certain functions which may be of personal nature or otherwise do not admit of such delegation.

33. In Bloom Decor Ltd. v. Subhash Himatlal Desai & others (JT 1994 (6) SC 89) a very important declaration regarding the granting of injunction in relation to Company matters by the civil Courts was made by the Supreme Court. Certain persons challenged the listing of shares of a public company in Stock Exchange and obtained orders of injunction. This was at a place where the court had no jurisdiction and the parties had approached the Court belatedly. Inspite of these facts, an ex parte order of injunction was granted by the Trial Court. Placing reliance on the principles governing the grant of injunction laid down by the Court in Morgan Stanley Mutual Fund Case, the Court frowned upon the action of the trial Court.

34. A landmark decision in Consumer jurisdiction and Corporate jurisprudence was delivered by the Court in Morgan Stanley Mutual Funds v. Karthik Das (JT 1994 (3) SC 654). The Bench of Chief Justice M.N. Venkachalliah and Justices S. Mohan and Dr. A.S. Anand held that a prospective investor in shares of a Company is not a consumer within the meaning of the CP Act and that application of shares cannot constitute goods. Moreover, issue of shares for raising capital docs not amount to carrying on of trade and the Consumer Disputes Redressal Fora have no jurisdiction “in such matters. Only after allotment of shares, may rights arise as per the contract, namely, the Articles of Association of the Company.

There is no purchase of goods for a consideration, nor could the prospective investor called the hirer of the services of the Company for a consideration. The expression 'trade practice' under the C.P. Act or the Rules shall have the same meaning as defined in S. 36(a) of the Monopolies and Restrictive Trade Practice Act, J 969. The Company is not trading in shares, but issues shares for building a capital. To raise capital means making arrangements for carrying on trade. It is not a practice relating to the carrying on of any trade. The creation of share capital without allotment of shares does not bring shares into existence. Therefore, a prospective investor in shares is not a consumer under the CP Act and the Redressal Forum has no jurisdiction.

35. The Supreme Court, considering S. 19 of Consumer Protection Act further held that the Consumer Forum or the Commission does not have any power under the Act to grant interim relief or ad-intcrim relief and it can grant only final relief.

36. Justice Mohan speaking for Venkakachalliah, C.J. and Anand, J. and for himself, held mat the prospective investor of shares in a Company is not a consumer within the meaning of S.2(c) or (d) of the Consumer Protection Act, 1986. Shares for which application is made for allotment are not goods and till the allotment of shares takes place the shares do not exist. A fortiori an application for allotment of shares cannot constitute goods and before allotment an applicant cannot be called a consumer. For satisfying the requirements to be considered as a consumer, there must be a transaction of buying goods for consideration under clause 2(i) of the CP Act, 1986. The definition contmeplates the pre-existence of a completed transaction of sale and purchase. The Consumer Protection Fora, accordingly, have been held to have no jurisdiction to interfere in the matter. Mohan, J. also emphasised the rigorous requirements to be fulfilled for granting exparte injunction under O.XXXIX, R. 1 and stated that it could be granted only in exceptional circumstances and the Court must record the reasons for the same. The Court gave certain guidelines for granting injunction and stressed the need for the trial court situated outside the place where the Registered Office of the company is situate to have care, caution and circumspection in the matter of granting injunction against Corporate bodies in its functioning.

37. On the Labour-cum-Service Laws front, the apex Court upheld the principle of equal pay for equal work and said that Storm Water Drains Bidders and Storn Water Drain Mates, Class IV employees in the service of the New Delhi Municipal Committee, who are working similar to other class IV employees having same status and similar responsibilities, are entitled to pay benefits like the latter class. (Babu Lai & another v. N.D.M.C. & another, AIR 1994 SC 2214).

38. Likewise, the Supreme Court has held that the object of contempt proceedings is not to provide protection to the Judge as an individual, but to uphold the majesty of the law and protect the interests of the public which would undoubtedly be affected, if by the act or conduct of any party, the authority of the Court is lowered and the sense of confidence which people have in the administration of justice by it is weakened.

39. A new trial has been blazed in Family Jurisprudence by the Supreme Court in Smt. Neeraja Sanaph v. .layout v. Sanaph and another (JT 1994 (6) SC 488). The Court comprising Justices R.M. Sahai & N.P. Singh through Sahai, J. was concerned with how to protect the rights and interests of Indian women married to NRIs on decrees of annulment obtained from foreign courts. The court suggested to the Government of India to include a law such as the Indian and Colonial Divorce Jurisdiction Act, 1940. Provisions be made in a legislation to the effect that no marriage taken place in India may be annulled by a Foreign Court and adequate alimony should be granted to the wife in the property of the husband both in India and abroad. The court further suggested that reciprocal arrangement under S.44A of CPC should be made to make executable in foreign courts the decrees passed by the Indian Courts. The rule of domicile replacing nationality in most of the countries for ' assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. So saying, the court modified the order of the High Court by allowing the foreign women to withdraw larger amounts from the money deposited in Court.

40. Dialectical insights into the status of women in Indian Society make sad reading and summon angry action, as is evident from the moral fulminations of the apex Court. Even in 1994, the International Year of the Family, the house wife is the beast of burden with neither equity nor equality ameliorating her woes or chasing away her blues. It is a tragedy that our much flaunted and market-friendly materialist culture and Mammon Worship is unfairly and unjustly market hostile to the fair sex.

41. In Sales Tax Laws, a slightly new approach was taken by the Court in the interpretation of the fiscal staute in J. K. Synthetics Ltd. v. The Commercial Tax Officer (JT 1994 (3) SC 671). Justice A.M. Ahmadi, speaking for the Constitution Bench, observed "it is true that the Machinery provision mostly in doubt is so construed as would effectuate the object and purpose of the statute and not defeat the same. But, it must also be realised that the provision by which the authority is empowered to levy and collect interest, even if construed as forming a part of the machinery provisions, is substantive law for the simple reason that in the absence of contract or usage, interest cannot be levied under law and it cannot be recovered by way of damages for wrongful detention of the amount. Regardless of the reason which impelled the legislature to provide for charging interest, the Court must give that meaning which is conveyed as the language used and the purpose to achieve. Therefore, any provisions made in a statute for charging or levying interest on delayed payment of tax must be construed as a subslanuative and not adjectual law." The Court referred to "Witney v. Commissioner of Inland Revenue (1926 AC 37)".

42. One may not agree with all of the Supreme Court's holdings referred to supra, and perhaps, rightly. But, one has reason to be confident that our Supreme Court never stops trying in its opinions in every case on its agenda to contribute appropriately to the fragile balances of our National Democracy.

Interpretative Affront or Aberration? —

A Critique of Mohammed Kunhi v. K.A. Salam &

Another — 1993 (1) KLT 867 and Chacko Joseph

(Order dt.6-4-1993 in C.M.A. No.49 of 1992)

(S. Parameswaran, Advocate, High Court of Kerala)

Law is an ocean. It is constantly changing and expanding. No Judge, jurist or lawyer has so far claimed ultimate legal wisdom or saturation with legal knowledge.

2. Interpretation of statutes is as much an art as a science. It is a delectable, diligent, and yet, delicate, exercise and courts should be alert, attentive, and cautious, lest it be misled into misinterpretation by Counsel. Instances are not few or far between, when courts have slipped and tripped in the interpretative exercise and, not infrequently, occasioned by arguments at the Bar. The latest instance on point is Justice Pareed Pillai's decision in V.M. Kunhi's case (1993 (1) KLT 867).

3. In Moideenkutty v. Kadalundi Panchayat and another reported in lLR 1991 (3) Ker. 496. Justice P.K. Shamsuddin of the Kerala High Court held that no appeal lies against an interim order passed in an appeal filed under S.104 of the C.P.C. In that ease, a suit was filed by Moideenkutty, the appellant, for declaring his right to conduct boat service in a ferry and for an injunction against the Panchayat from cancelling the auction confirmed in the name of the appellant. An ex parte order of injunction was granted, but on hearing the opposite side, it was vacated and the injunction application dismissed by the trial court. The Contractor filed an appeal before the District Court against the said order and he moved an interim application for injunction restraining the Panchayat for conducting further auction and this was dismissed by the District Judge. Against the said order of dismissal, a CMA was filed before the High Court by Moideenkutty. The respondent before the High Court challenged the Appeal as not maintainable and upholding its contention Justice Shamsuddin dismissed the appeal. His Lordship observed: "Section 104 deals with appeals from orders. Clause (1) of S.104 provides that a n appeal shall lie against an order made under rules from which an appeal is expressly allowed by rules. Under O.XLIII, R.1(r), an appeal shall lie from an order passed in an application under 0.XXXIX for temporary injunction. Sub-section (2) of S.104 bars an appeal from an interim order passed in appeal filed under S.104 CPC. The order under attack in this CMA is an order passed in the CMA No.44 of 1991. In the circumstances, no CMA lies from such an order in view of the bar contained in sub-section (2) of S.104. In order to attract S.104(2), the appeal in which the order was passed should be one falling under S. 104 and that the bar is not applicable to an appeal from an order passed in appeal under S.96". The learned Judge relied on the decision in Cherian Lookose v. Narayana Pillai Gopala Pillai reported in 1958 KLT 828.

4. An identical view was taken earlier by Justice Khalid of the Kerala High Court then in Somavally v. Appavu Nadar reported in 1980 KLT 907. A very curious reasoning was given by Khalid, J. Observed the Judge:— "Order XLIII provides for appeals against original orders and not against orders passed in appeal. To allow an appeal of this kind would be to go against the express provisions contained in S.194(2) Civil P.C. under which no appeal can be filed against any order passed in appeal. If the argument that O.XLIII provides for appeal against orders mentioned therein, be it passed in appeal or suit, is accepted, the position would be that while there is no appeal against a final order in a Civil Miscellaneous Appeal, one is provided against an interim order. The anomaly is evident. To contend that an appeal lies against an interlocutory order passed in appeal would be to permit a second appeal against the interlocutory order dismissing the injunction petition! A careful reading of S.104(2) shows that it takes within its mischief all orders passed in appeal".

5. It is very strange that the learned Judge thinks that it is a second appeal against an interim order that is involved. The appeal before the District Court is against the interim order passed by the trial court. But the appeal before the High Court is not an appeal against the order in CMA but an appeal against an Interlocutory order passed in appellate proceedings by the lower appellate court.

6. Singing in the same strain of the decision of the Kerala High Court referred to earlier, Justice Nesargi of the Karnataka High Court held that an appeal will not lie, in Middle Huge Gowda and others v. Channamma & another reported in AIR 1974 Karnataka 63. In that case an application for ad-interim injunction was filed by the plaintiff. After hearing both sides, the learned Munsiff adjourned the application for hearing on merits and directed both the parties to maintain status quo. It was against such an order that an appeal was filed before the District Court and the same was questioned before the High Court. His Lordship held that against such an order, no appeal lies as the same cannot be treated as one passed under O.XXXIX, R.1 of the C.P.C. This case is clearly distinguishable.

7. Justice Pareed Pillai dismissed an appeal filed against an injunction order granted in an Interlocutory Application filed in CMA on the ground that under S.104(2) of the Code of Civil Procedure, no appeal lies. The Judge observed as follows in V.M. Kunhi v. K.A. Salam and another reported in 1993 (1) KLT 867:—

"Order XLIII, R.1 mentions the orders from which appeals could be filed under S.104. Order XLIII, R.1(i) enables a party to file appeal against orders under Rules 1, 2, 2A, 4 or 10 of Order XXXIX. When such appeal is filed before the appellate Court, a party can make interim injunction by filing interlocutory application before that Court. The question for consideration is whether the order of the appellate Court in an interlocutory application can be challenged before the High Court by filing appeal under S.104. S.104(2) categorically provide that no appeal shall lie from any order passed in appeal under the section. A reading of S.104(2) makes the position very clear that no appeal can be entertained from any order passed in appeal under S.104. "Any order passed in appeal" would certainly take in orders of the appellate court in interlocutory applications. Any order passed, by an appellate court in interlocutory application moved in an appeal before it squarely comes under the category of ‘any order passed in appeal'. It follows that as the impugned order is one passed in the interlocutory application in C.M.A. it would certainly be within the inhibition of S.104(2). Thus the appeal to this Court against the interlocutory order passed by the lower appellate court in appeal under S.104 is incompetent."

8. Justice Pareed Pillay, however, on a later occasion in Chacko Joseph's case (CMA. No.49 of 1993) readily reconsidered his view and posted the case for re-hearing after the Counsel for the appellant brought to His Lordship's notice, decisions taking the contra view. Unfortunately, however, when this case came up for final hearing before Justice P.A. Mohammed, following Somavally (1980 KLT 907), dismissed the appeal.

9. Under Order XLIII, R.1(r) of the Code of Civil Procedure, 1908, the right of appeal given to the affected party is not only against a final order of injunction passed by the lower court after hearing both the parties under O.XXXIX, R.4, but also against an ex parte order of injunction passed by the lower court under O.XXXIX Rule 1 (E. Manyamma v. A. Maniswamy Naidu, AIR 1983 A.P. 128; C. Mangaiachi v. Ashokan. AIR 1973 Mad. 258 etc.).

10. The Andhra Pradesh High Court had occasion to consider the same question in Gangulappa Naidu & others v. K. Gangi Naidu reported in AIR 1982 A.P. 284. In refreshing contrast to the erratic, reasoning of the learned Judges of the Kerala High Court, Justice Madhava Rao held by cogent, convincing and logical reasoning that an appeal would lie. Observed the learned Judge as follows:—

"The point for consideration is whether an appeal against the orders in a petition filed afresh under O.XXXIX, Rules 1 and 2 lies under O.XLIII or is precluded under S.104(2) C.P.C. Section 107(2) makes it clear that the appellate court exercises the same powers and performs the same duties as are conferred and imposed by the C.P.C. on Courts of original jurisdiction in respect of the suits. It is not in dispute that the appellate court entertains applications under O.XXXIX, Rules 1 and 2 C.P.C. for the first time when appeals are pending before it. When an order is passed on such application, it is very plain that an appeal lies against such an order under O.XLIII, R.1 C.P.C. It also provides for appeals against several orders made under various orders of C.P.C. Rule 2 of Order XLIII makes it clear that the Rules of Order XLI shall apply so far as may be, to appeals from orders. Whatever is the procedure laid down, while dealing with appeals, Order XLI will be applicable to appeals filed under Order XLIII. No distinction whatsoever is made under Order XLIII as to whether the order is made by the trial or appellate court. There is a prohibition for filing appeals against orders passed in appeal under S.104(2) CPC. S.104 contemplates appeals from orders. Appeals are filed not only against orders made under various sections of the C.P.C; but also against orders enumerated in Order XLJII under various orders of the C.P.C. Order XXXIX, Rules 1 and 2 is one of the orders against which an appeal shall lie under Order XLIII, Rule 1 (4) C.P.C. When such an appeal filed against such an order is disposed of, no further appeal lies against such an appellate order under S.104(2) C.P.C. Therefore, when, for the first time, an order is passed under O.XXXIX Rules 1 and 2 by trial or appellate court, an appeal shall certainly lie under S.104(1) of the C.P.C. But against such an order in appeal no further appeal shall lie under S.104(2) C.P.C".

11. In Ramaswamy v. Chinna Sithammal (AIR 1976 Mad. 63) Justice Ramaswamy, interpreting S.104(2) C.P.C, observed as follows:—

"If I may say so with respect, the decision of Nagarajan, J. (in C. Kalahasi v. P.C.M. Chetti - AIR 1975 Mad. 3) is unexceptionable. As seen above, the order which was appealed against, though made under O.XXXIX, Rule 1 had been passed in an appeal, which itself was one against an applicable order. But the observations of learned Judge are sought to be construed as laying down the law that no appeal lies against an order passed in any appeal even though the order is an appealable one under one or other of the clauses of O.XLIII, Rule 1 C.P.C. If the learned Judge has really stated that an order passed even in a regular appeal coming under S.96 of the Code is not appealable, it would be purely obiter, for, in the matter before the learned Judge, the order has been passed, not in an appeal coming under S.96, but in an appeal coming under S.104".

12. The question of appeal ability of an order passed by a court under Order XXXIX, R.1 C.P.C. under O.XLIII, R.1(r) came up for consideration before the Hon'ble Kerala High Court in Alice v. Thomman reported in 19S3 KLT 97. The judgment was delivered in a Revision Petition which arose from an order passed in an Interlocutory Application in a suit by the Munsiff Court, Ernakulam. The Munsiff, after hearing, passed an order as an interim arrangement and posted the injunction application for final hearing to a future date. That order was challenged before the High Court by one of the parties. Justice Kader observed as follows:—

"There is nothing in Order XLIII, R.1(r) either expressly or impliedly showing or indicating that the order contemplated therein is only final order and not an interim or temporary order. Any order, whether final order, interim or temporary, passed or purported to have been passed under O.XXXIX, Rule 1 is an appealable order. The grant of remedy under S.115 is in the discretion of the High Court and as a rule of practice this discretionary power will not be exercised in favour of interference where there is another remedy open to the party which he did not avail of. Under S.115(2) C.P.C. there is an express ouster of jurisdiction of this High Court in the case of appealable orders. Sub-section (2) of S.115, C.P.C. clearly states that the High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or any Court subordinate thereto".

13. In Vasu v. Narayanan Namboodiripad reported in 1961 KLT946, the Kerala High Court held that when there is an attempt as to whether the particular order would fall under a particular Rule or not, the benefit of that doubt should be given to the petitioner and the Civil Revision Petition should be allowed to be proceeded with. The court relied on the decision of the Calcutta High Court in S.N. Mitra's case reported in AIR 1927 Cal. 354. The Kerala case was one in which there was a bona fide doubt as to whether the order under attack in that case really fell under O.XXXVIII, R.5 or R.6.

14. Justice D.K. Kapur of the Delhi High Court interpreted Section 115 of the C.P.C. 1908 as amended by Act 104 of 1976, in Khemchand v. Hari Singh reported in AIR 1979 Del. 7. In that case the Court was concerned with the applicability of S. 115(2), C.P.C. vis-a-vis Order XXXVII, R.4. Justice Kapur observed as follows:—

"A revision is maintainable in a case for which no appeal lies to the High Court. However, though under sub-section (1) of S.115 a revision was maintainable even before the Section was amended in 1976, the High Court’s as a matter of practice did not interfere in a revision in cases where any appeal against a decree lay to the District Judge. By the addition of sub-section (2) of S.115 by the Amendment Act, 1976 this practice has been statutorily recognised in that the new sub-section now prohibits interference in revision if appeal lay against an order or decree sought to be reversed by the Court or decree sought to be reversed by the High Court or any court subordinate."

15. That an appeal is maintainable against an order passed under O.XXXIX, Rule 1 even in an ex part order of injunction was found by Justice Balagangadharan Nair in Bhaskaran v. Ambika (1977 KLT 476). In that case the plaintiff obtained an ex parte order of injunction against the respondents from committing trespass into the plaint schedule properly. Straightaway the aggrieved defendant approached the High Court with the Revision Petition and the respondent-plaintiff challenged the maintainability of the revision contending that an appeal alone will lie from the order to the District Court. Holding that an appeal lies, the learned Judge dismissed the revision petition observing as follows:—

"Whether an order of injunction is to operate only till cause is shown by the opposite party against it or whether it is to remain in force till the disposal of the suit, it is nonetheless an order of temporary injunction within R.1 or 2 of Order XXXIX. When the court issues an order of injunction and notice to the opposite party as in this case, it is really passing an order until further orders falling squarely within Order XXXIX, R.1 and therefore appealable under Order XLIII, R.1(r). Order XLIII, R.1(r) itself does not say that appeals shall lie only from final orders and an ex parte order is as much an order of injunction as the final order under Order XXXIX. Order XXXIX, Rule 3 on which counsel for the petitioner based his argument does not provide for orders of injunction; it lays down only a rule of procedure under which the Court might dispense with the initial notice before issuing an order of injunction. The order of injunction, whether interim or final, is, therefore, an order falling within Rule 1 or 2 of Order XXXIX and, therefore, appealable under Order XLIII, R.1(r). Nor is the appeal ability taken away by the circumstance that R.4 of Order XXXIX enables the order of injunction to be discharged, varied or set aside on application made for that purpose, for two alternate remedies can co-exist with an option to the aggrieved party to invoke the one or the other - to apply under R.4 of Order XXXIX or to appeal under O.XLIII Rule 1(r)".

16. Thus, it is quite evident that in a regular appeal pending before the appellate court, if an order is passed under Order XXXIX, Rules 1 and 2 or as a matter of fact under any of the Orders, then the appeal is maintainable under Order XLIII Rule 1 C.P.C. as all such orders are appealable under Order XLIII.