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.

Environmental Pollution and the Individual

(Mrs. Sathyashree Priya Lakshmi Narayanan, Advocate)

Can an individual assertively claim as a matter of right that he be protected from the environmental pollution? Well, the apex court of our country in M.C. Mehta v. Union of India (AIR 1987 SC 1086) has recognised the 'individuals right' to move the apex court under Art.32 but it held that "the infringement must be gross and patent". To quote further, the infringement must be "incontrovertible and ex facie glaring and cither such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil court". Does that mean that an individual or a small group of individuals cannot move the court under Art.32 if their very life is in danger due to some kind of Environmental pollution if it is not gross or patent enough to affect the rights of a large group of persons?

The Environmental Protection Act, 1986 vests the protection of our Environment in the hands of the Pollution Control Boards set up in a few places in the country. In fact it is for these Pollution Control Boards to file cases against industries or individuals who contravene the provisions and permissible standards enunciated in the 'Environmental Laws'.

Apart from the duty vested upon these Pollution Control Boards to effectively check the Environmental Pollution, the alternative remedies available to individuals to assert their rights in such cases is to be given a serious thought. Their standing, the reliefs they are bound to obtain under the precincts of law, the nature of damages or the relief of injunction is not clearly dealt with under the statutory law at present.

The current trend adopted by the Kerala High Court in (Jacob v. Superintendent of Police) (ILR 1993 (1) Ker. p.248) is the most progressive step in the field of Indian Environmental law where it is observed as an obiter - that ".....compulsory exposure of unwilling persons to dangerous and disastrous levels of noise, would amount to a clear infringement of their constitutional guarantee of right to life under Art.21. Right to life, comprehends right to a safe environment including safe air quality, safe from noise".

More often than not, an individual is denied to knock at the portals of the High Court or the Supreme Court as a matter of right, when affected by environmental pollution since there is every possibility of his petition being rejected in favour of an alternative remedy. Especially at the current juncture where the hazards of Environmental Pollution has reached such a destructive level costing many lives in different occurrences, it is high time that an individual's right to a Safe Environment be brought under the precincts of 'Fundamental Right' enshrined in our constitution which shall bring a most effective & speedy relief to the affected individuals thereby protecting the individuals interest in Environmental Pollution!

A Comment on 1995 (1) KLT 61 -- Mathew v. Saramma

(V.K. Sathyavan Nair, Advocate, Kottayam)

The construction of the second proviso to S.33 of the Evidence Act as embodied in the decision of the Division Bench in 1995 (1) KLT 61 (Mathew & Saramma) appears to be not free from doubt.

Substitute for Viva Voce testimony

Section 33 of the Evidence Act provides a substitute for 'Viva voce' testimony and is an exception to the normal rule that it is necessary to produce every witness at the trial for taking deposition. When the production of a witness in a subsequent proceeding is actually impossible the evidence already given by that witness in earlier proceedings would be relevant under S.33. The circumstances under which physical presence of witness cannot be insisted upon for taking evidence are enumerated in the Section itself.

The emergencies are:

i. when the witness is dead

ii. when he cannot be found

iii. when he is incapable of giving evidence

iv. when he is kept out of the way by the adverse party.

v. when his presence cannot be obtained without unreasonable delay or expense.

No doubt S.33 embodies a rule of forensic necessity arising out of administrative expediency for doing justice between litigants in particular situations. It cannot also be disputed that the powers vested with the court under S.33 of the Evidence Act have to be exercised with great caution only after satisfying that all the requirements have been strictly proved. It may also be mentioned that S.33 does not enjoin upon the court that the statement of witness given in previous proceeding and admitted in subsequent proceeding must be believed. What the section provides is that the former evidence is relevant for the purpose of proving the facts it states.

Application of second proviso to S.33 of Evidence Act

In this article we are concerned only with the scope and object of the second proviso to S.33 which reads: "that the adverse party in the first proceeding had the right and opportunity to cross examine". The Division Bench in (1995 (1) KLT 61 - Mathew v. Saramma) took the view that a defendant in a subsequent proceeding cannot use the evidence given by a witness who was examined in the former proceeding on the side of the plaintiff. The reasoning is that the evidence goes against plaintiff who had no right to cross examine his own witness in the earlier proceeding and the statement of such a witness cannot be used against him.

The principle laid down by the High Court can be explained by referring to the facts of the case. In the former proceedings between A and B as plaintiff and defendant respectively C was examined as A's witness. B who was the defendant in that proceeding had cross examined him also. There is a subsequent proceeding between A and B as plaintiff and defendant and the question in issue is substantially the same. Meanwhile C died. His statement in the prior proceeding is sought to be admitted on the side of B the defendant. (It may be assumed that the statement may be favourable to B to a certain extent though he was examined as A's witness). Then A raised the objection that C was his witness in the earlier proceedings and that he had no right to cross-examine him and therefore, the statements inadmissible. The High Court upheld the objection the ground that A had no right to cross examine C and the requirement of second proviso has not been fulfilled. The court interpreted the words 'adverse party in the first proceeding' as adverse party against whom the evidence is tendered in the second proceeding. In other words 'adverse party' as used in the proviso mean 'A' and not 'B' in the instant case.

If this view is accepted as correct the very object of S.33 would be defeated and would lead to the inequitable result that evidence can be used by 'A' one of the parties and the same evidence cannot be used by the other party. Is it not an illogical, unjust and unreasonable doctrine?

Right and opportunity to cross-examine

It seems rather strange, observed Rajasthan High Court in Poonam Chand v. Motilal (AIR 1955 Raj. 179) that person who himself examines a certain witness should be permitted in a subsequent proceeding to raise an objection that the statement should not be admitted because he had no right or opportunity to cross examine him. The rule in this proviso depends upon the principle of reciprocity, it being reasonable that the right to use evidence should be co-extensive with the liability to be bound thereby whether the party be plaintiff or defendant. The word 'right' used in the section means a right conferred by a statutory provision such as that contained in S. 138 of the Evidence Act and a not a right accruing from mere permission granted by the court as in the case of co-plaintiffs and co-defendants. The object of the second proviso is to protect the parties who were ex-parte in the former proceeding and also to protect co-plaintiffs and co-defendants who may not have the right and opportunity to cross examine the witnesses produced from their own side. The cross-examination may be by a co-plaintiff, co-defendant, co-accused or co-respondent as well as by the adverse party.

Who is adverse party in the first proceeding?

The Division Bench while construing the Section gave emphasis on the words 'right and opportunity to cross examine' and gave no effect to the words 'adverse party in the first proceeding'. The language of the section is clear and the normal construction is that if the adverse party in the first proceeding had the right and opportunity to cross examine the witnesses, his evidence is relevant provided the other conditions are satisfied. There can be no dispute that the expression 'adverse party' is used to distinguish that party from the party who calls the witness and that expression in the proviso can only refer to the party which was the adverse party at the time when the deposition was recorded in the first proceeding. The expression adverse party in the first proceeding does not mean the party against whom the evidence is sought to be adduced in the subsequent proceeding. But the Division Bench took such a view and concluded that the evidence of the witness in the first proceeding is sought to be used against the plaintiff and therefore, the plaintiff is the advese party and as he had no right or opportunity to cross examine that witness, his evidence cannot be used under S.33. In taking such a view the court did not consider the implication of the words 'in the first proceeding' qualifying 'adverse party'. The plain meaning of the proviso is that the question who is the adverse party has to be determined with respect to the first proceeding and not the second proceeding where the prior deposition is sought to be used.

A fair construction

In Poonamchand v. Motilal (AIR 1955 Raj. 179) Division Bench consisting of Wanchoo C.J. and Dave, J. had the occasion to deal with exhaustively the scope and object of second proviso to S.33. A reading of para.18 of the Judgment would show that the conclusion of the Rajasthan High Court appears to be more reasonable, logical and convincing than the passing observation contained in AIR 1926 Cal. 705. It was observed by the learned Judges of the Rajasthan High Court as follows:—

"Learned counsel wants to read the proviso as if it ran as follows:—"The adverse party in the subsequent proceeding had the right and opportunity to cross-examine the witness in the first proceeding". If the legislature had drafted die proviso in this manner then the court could have no option but to interpret it as it would have stood. But when the words in the proceeding' have been used, just after die words adverse party and not at die end of die clause, then it does not seem proper for die courts to change the sequence of words to suit die interpretation. The question to be considered is as to what was meant by the words "die adverse party in die first proceeding".

......It also seems unfair that a person producing a witness in die previous proceeding should be able to utilise die statement, in a subsequent proceeding while die adverse party should be denied die right of using die same statement against die party producing die witness in case such a deposition goes in its favour".

The Kerala High Court did not agree with the view taken in Poonamchand's case. The court observed: "We have carefully read the words used in the proviso to S.33 of the Evidence Act. We are unable to accept the above view held by the learned Judges in Poonamchand v. Motilal (AIR 1955 Raj. 179). If the above view is accepted the proviso itself was quite unnecessary and it would have been suffice to say that an evidence given by a witness in a judicial proceeding as before any person authorised by law to take, is relevant for the purpose of proving the subsequent judicial proceeding the truth of the fact which it states, between the same parties or their representatives in interest".

But a careful and plain reading of second proviso to S.33 would reveal that its object is to ensure that no previous statement is admitted in evidence unless the opponent had the opportunity to cross examine as of right and test the truth of the statement at the time of recording the deposition. So the expression 'adverse party' in the proviso means the opponent against whom evidence is given in the previous proceeding. There is no sound reason for interpreting otherwise which would yield to unjust result that the same evidence is admissible when produced by one party and in admissible when produced by the other party.

Therefore, it is submitted that the decision needs a second look.

Case of "Common Cause"

(By V.K. Sathyavan Nair, Advocate, Kottayam)

A Judge is not to innovate at pleasure. Judicial innovation has its own limits. Courts legislate only between gaps and fill the open spaces in law. That Judges did not legislate at all is an old theory. The modern view is that the power to declare the law carries with it the power, and within limits the duty, to make law when none exists. While fixing the meaning of a statute a Judge sometimes functions as a legislator. Does this power of legislation extend to changing the enactment by adding new provisions?

In an effort to streamline Criminal justice system the Supreme Court has recently formulated some mandatory rules in "Common Cause: A Registered Society through its Director v. Union of India and others”. The rules directs the trial court to acquit or discharge the accused as the case may be in certain class of cases pending before the Criminal courts.

The judgment written by B.P. Jeevan Reddy, J. is not supported by any elaborate discussion or reasoning except the statement that it appears essential to issue appropriate directions to protect and effectuate the right to life and liberty of citizens guaranteed by Art.21 of the Constitution. The court felt that it is necessary to ensure that these criminal prosecutions do not operate as engines of oppression.

"Common Cause” a registered Society espousing public causes has asked for these directions in a Writ Petition filed by them and the court issued notices to Union of India and the State Governments of Utter Pradesh and Bihar and to the Delhi administration. While granting the directions suggested by 'Common Cause' the court made it clear that the Criminal Courts and all Courts trying criminal cases shall take appropriate action in accordance with the directions issued by the Supreme Court. It is also made clear that the directions are applicable not only to cases pending but also to cases which may be instituted hereafter.

The rules enunciated by the apex court are to be deemed as having been incorporated in the Code of Criminal Procedure. Directions numbered as clauses 1 (a), (b) and (c) of paragraph 4 of the judgment cover cases where the accused are in jail and the trial court shall release these accused on bail on personal bond. There can be no dispute that granting of bail in bailable offences is a matter of course. Sub-section (1) of Section 436 Cr. P.C. read along with the proviso provides that the release may be ordered on the accused executing a bond and even without sureties if the officer or court thinks fit. Under Sec. 446-A the bond or bail bond can be cancelled for breach of a condition and thereafter no such person shall be released only on his bond except where there is satisfying cause for the failure to comply with the condition. Sub-section (2) of Section 436 empowers the court to refuse bail even if the offence is bailable where the person granted bail fails to comply with the conditions of bail bond. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the court and the power to grant bail vests in the court before whom an accused appears or is brought subject to the special powers of High Court or Court of Session.

It has been laid down in AIR 1979 SC 1360 that where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and strongly emphasised the urgent need for provision enabling release on bail. Now according to the new rules enforced by the Supreme Court, the trial court need not consider the circumstances and the merits of individual cases and exercise its discretion judiciously as the trial court is bound to release the accused provided the conditions stipulated by the Supreme Court are satisfied. They are mandatory rules to be followed by other courts in all classes of cases referred to by the Supreme Court.

The directions contained in clauses 2 (a) to (1) of paragraph 4 are concerned with the discharge or acquittal of the accused, as the case may be. As per clause 2 (a) the trial court shall discharge the accused in traffic offences where the proceedings are pending for more than two years. The pendency may be due to the non-servicing of summons to the accused or any other reason. Even if the delay is caused by the accused's wilful default he is discharged and the case closed. It is significant to note the words 'the court may discharge the accused and close the case'. In summons cases and summary trials the accused is either acquitted or convicted and there is no scope for discharge. What are traffic offences? Does it include offences under Sections 297, 337, 338 and 304A IPC? Is there discharge of accused in 'petty' cases? These aspects require clarification.

The direction contained in clause 2 (b) deals with cases compoundable with permission of courts. If such cases are pending for more than two years and trial of cases have not yet commenced, the accused shall be acquitted or discharged after hearing the public prosecutor and other parties represented before it or their advocates. What is the purpose of that hearing if the accused is to be either discharged or acquitted and not to be convicted?

The next guide line as contained in clause 2 (c) covers non-cognizable and bailable offences. The accused is entitled to a discharge or acquittal provided the following two conditions are satisfied.

(1) Cases pending for more than two years.

(2) Trials have still not commenced.

Paragraph 5 of the judgment lays down that the period of pendency of criminal cases shall be calculated from the date the accused are summoned to appeal in the court. It is doubtful whether the date referred to above means the date of issue of summons or the date shown in the summons for appearance before court. The words 'commencement of trial' are also not capable of precise definition and the meaning varies with the context in which they are used in the various section of the Code of Criminal Procedure (See Chapters XVIII, XIX, XX, XXI etc.). Under Section 238 Cr. P.C. commencement of the trial means the appearance or bringing of the accused before a Magistrate after the filing of police report under Section 173 (5).

Ordinarily trial means examination of a cause in controversy. Inquiry includes every inquiry other than a trial conducted by a Magistrate or Court (Section 2 (g), Cr. P.C.). So evidently trial commences after enquiry. After charges are framed and read out to the accused in trials of warrant cases and trials before Court of Session, he shall be asked whether he pleads guilty to the charge or whether he claims to be tried. In summons-cases the particulars of the offence of which the persons are accused shall be stated to them and then the accused shall be asked whether he pleads guilty or has any defence to make. When there is no conviction on plea of guilty, trial commences. In all these classes of cases if the accused claims to be tried the magistrate or the court shall proceed with the case for taking evidence. Is it not reasonable and logical to infer from a reading of the relevant provisions of Criminal Procedure Code that ordinarily trial commences from the date fixed for taking evidence in a case? The Supreme Court left the point without clarifying it.

Apart from these nebulous areas, the far-reaching consequence of clause 2 (c) of the directions, in so far as criminal complaints under Section 138 of the Negotiable Instruments Act are concerned, has not been brought to the notice of the Supreme Court. Complaints filed under Section 138 of the Negotiable Instruments Act pertain to non-cognizable and bailable offences coming within the scope of clause 2 (c) of paragraph 4 of the Supreme Court judgment.

Such complaints are on the increase. According to the Supreme Court direction if the accused is able to evade the process to compel appearance before court he gets an acquittal after the specified period. It ends in denial of justice to a complainant. He is without any remedy. His civil remedy also might have been barred by the time the accused is discharged under clause 2(c). It is obvious that the Supreme Court did not apply its mind to such instances resulting in gross injustice.

There can hardly be any dispute that it is the prerogative of the trial court to convict, discharge or acquit the accused as the case may be and such decisions are subject to the scrutiny of higher courts. The permanent character of the mandatory rules enumerated by the Supreme Court gives them the force of an Amending Act, changing the provisions of Code of Criminal Procedure. It is an instance of judicial legislation and I do not intend to discuss in this article whether the court has acted within limits. That question apart, the application of the rules may result in injustice since the entire aspects have not been brought before the notice of the court. It is submitted that the decision requires further scrutiny and clarification.