Needs of Superannuation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Humour in Robes

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

Law, literature and humour were inseparable companions in the days of yore. Ever since the nobility and learned nature of this oldest profession in the world started going down the Gadarene slope, and what was essentially a profession with its etiquettes, ethos, rigour and rhythm started degenerating into a trade, thanks to the influx of undesirable and undeserving persons into the field, these essential traits also started disappearing from the arena. The lawyers, and the judges, whose origin is in the lawyers, have, apart from undergang other qualitative degeneration, lost their sense of humour. One has, therefore, to be content with nostalgic memories of the past when law, literature, legality and lighter vein used to be visible in a commendable camaraderie.

The immediate provocation for these lines is a small incident that took place yesterday (24-10-1994) in the Court of Honourable Chief Justice. A batch of cases in which this writer appeared for the appellants was taken up for hearing. This writer sought for adjournment on the ground of his having to go out of station on professional work and submitted that it could be taken on a specified date. The puisne Judge sitting with the learned Chief Justice humourously asked what guarantee was there that this writer would be back and argue the cases on that day to which this writer replied that he would come back and argue, if he was alive. The junior Judge said that, that is the case with everybody. Then pat came the remarks of Chief Justice Sujatha Manohar "That is all the more the reason why the cases should be argued by you today", which threw the full court into reels of laughter. Without exaggeration it may be said that after the M. S. Menon Court, it was for the first time that one could witness such sharp witted and humourous comments from the Chief Justice's Court.

Talking of M.S. Menon, Chief Justice, who is one of the most intelligent Judges 'that adorned the Kerala High Court, the repartees exchanged between him and the late lamented doyen of the Bar, Thycaud Sri Subramania Iyer rush to one's mind.

Once during monsoon, Thycaud's case was called in the First Bench of Chief Justice M.S. Menon and Justice Govindan Nair. As usual, Iyer who was not in Court rushed to the Court Menon C J. said "Slowly, slowly Mr. Thycaud. It is slippery outside over there". Without batting an eyelid replied Thycaud, "Yes, I know My Lord. And I know that this Court is more slippery!". The whole court roared with laughter.

On another occasion, Justice Menon, who revelled and exulted in provoking Thycaud, pointing to the cracks in the outer wall of tire Court hall told Sri Iyer "Look there, Sri Iyer, there are several cracks over there. What shall we do?". Without pausing for a minute, Iyer replied "Yes, My Lord, I saw that - But there are bigger cracks within this Court. I am concerned about it" Needless to say, Justice Menon, with his partly frame and penetrating intellect, shook with laughter.

On another occasion, Sri Menon, who could not brook mediocre, presentation or prosaic agreements or bad English, told a counsel, stopping his harangue midway, "Look here, Mr........, you are now making your valuable (!) contribution to the jurisprudence of this country to the detriment of your client and the delectation of the bench". Poor counsel, he took it as a compliment and patted himself on his back!

The illustrious Supreme Court lawyer of yesteryears Sri. A.V. Viswanatha Sastri was as much notable for his sense of humour as for his sharp wit, voluminous practice, frugal living and dishevelled attire and appearance. Justices Jeevanlal Kapur and S.K. Das of the High Bench, who were highly appreciative admirers of Sastri, delighted in taunting him to bring out his repartees. Once Sastri argued a Special Leave Petition in Das, J's Court and rushed off to another Court. Finishing argument in a case there, he rushed back to Justice Das's Court to argue another case. He went on repeating the process, when, unable to control his tongue, Justice Das remarked, "Mr. Sastri, you are all the time coming back to us like a bad coin" Spontaneous came the reply of Sastri "My Lord, Your Lordships may not talk of bad coins because Your Lordships came every day to the Court". A peel of laughter went around the Court.

I may conclude these lines mentioning an incident involving, Thycaud, Justice P.T. Raman Nayar, as he then was, was sitting in a bench dealing with Second Appeals admission and hearing. Nayar, J., wlto was a very competent Judge, had prejudices and predilictions. His.Lordship was dismissing all cases listed for admission on aparticular day. When a week case of a favourite lawyer of his came up, Justice Raman Nayar without hearing at length, admitted the Second Appeal and granted stay. Then came the tarn of Thycaud. The indefatigable, illustrious and irrepressible lawyer, in his inimitable style, opened his arguments, "My Lord, my first submission is that my case is not as bad as that of my learned friend Mr......(meaning the favourite of the Judge)". Before he uttered the next word, the Court ordered: "Notice and interim stay". It is our benighted fate that we have to remain content with the nolstagic memories of such lawyers and judges who enriched the law of life with their sharp wit and witticism, remarkable presence of mind, commendable perpicacity, incisive analysis, sturdy independence and priceless integrity. Such great men will ever remain an outstanding ever-blazing comet in the legal firmament.

Judicial Repentance or re-thinking?

(By. S. Parameswaran, Advocate Ernakulam)

(1) One is not dismayed, but dejected and disappointed, on reading the news item entitled "Judge deletes own remarks on V.V.I.P." in the Indian Express dated 24.9.95. Justice Jagadeesan of Madras High Court suo moto deleted certain paragraphs from his judgment concerning the mega-wedding of Sudhakaran, the foster son of the megalomaniac Madras Chief Minister Jayalalitha. He cannot claim to be poineer of suo moto review on the judicial front, for, way back in 1968, Chief Justice M. Hidayathullah of the Supreme Court suo moto reviewed a judgment passed by his Lordship in circumstances entirely different and justifiable.

(2) Justice Jagadeesan's belated attempt is to wriggle out of the opprobrium and onslaughts rightly directed towards him by the discerning common men and the enlightened public of this country. When the case came up on 4.9.1995 before the Bench, the Judge appeared independent and earnest in adjudicating the case, and gave certain directions to the Respondents and the Advocate General. But, in spite of persistent and persuasive efforts by the counsel for the petitioners, who were themselves Advocates of the Madras High Court, Justice Jagadeesan did not give an early posting, but posted the case for orders on the 7th September to be delivered after the wedding, thereby rendering infructuous and nugatory the writ petition itself.

(3) One is not surprised at such conduct of the higher judiciary in this country which has witnessed several instances of the higher echelons of the judiciary functioning as evolutionery extensions of the Establishment.

Self-seeking sychophancy has ceased to be the exclusive preserve of the politicians and the Bureaucracy in this country; it has found fertile soil in the higher echelons of the Indian Judiciary as well. Chief Justice Coke of England, who repudiated Government of men in favour of Government of law (Non sub sub homine sed sub deo et lege) and invited the wrath of the monarch of England must be turning in his grave.

(4) In the present, case it was the critical editorial in Tuglaq, a Tamil fortnightly, that has apparently spurred Justice Jagadeesan into deletion of his observation. After having done great damage through his judgment there was nothing for the Judge to lose by deleting the observations in question. The reasoning given by the learned judge for his review is astounding, and no less agonising. It is not a remorse-stricken retreat, but a belated attempt at escapism on account of a frontal attack from the Fourth Estate. Nor does the learned Judge appear to have been swayed by the observation of Justice Jackson of U.S. Supreme Court;"we are not final, because we are infallable, but we are infallible because we are final".

(5) Justice Jagadeesan's decision aroused the ire of the public and the press by inventing and extending a protection to the powers and prerogatives of the Chief Minister by eclipsing the egalitarian ethos informing Article 14 of the Constitution.

(6) Our constitutional set-up and development of Indian jurisprudence in the post Independence era provide opportunities to individual justices to influence the development of constitutional law and public policy significantly. In certain cases they can be specially influential because of the force of their intellect and the power of their personality or of their commendable persuasive capacity. Justices Krishna Iyer, Bhagwati, Chinnappa Reddy, Dharubhai Desai, Y.V. Chandrachud and P.B. Gajendragadkar fall in this category. Their social vision and moral mission have given a totally new look and direction to the Apex Court and they translated Justice Vivian Bose's famous dictum that the Constitution is not meant only for the affluents and the influential, but also for the butcher, the baker and the candle stick makers" into an operative reality. They are the salt of the earth. But, unfortunately, we had and have a few Justices who a la Jagadeesan, J. express views and expound philosophies from the Bench making people suspect that they do with an eye on their personal future. The black robes of judicial office cannot eliminate the human attributes and motivation of the people appointed to sit on Bench.

(7) When dealing with subjects like judges who are relatively inaccessible and purposefully obscured behind a symbolic facade, one has to be cautious and must avoid speculation. But in order to ensure and promote the collective understanding of the judge's roles in the Indian legal and judicial system, one must necessarily have the freedom critically to observe and analyse their judicial conduct. Jurimetrics is a sine qua non for the healthy development of any judicial system and the preservation and promotion of the Rule of Law. And the public has to keep a vigilant watch to see that an institution expected to be the sentinel on the qui vive does not degenerate itself into a semantic forum for self-seeking sycophancy. A drop of vinegar will suffice to spoil and savour a whole cup of milk.

(8) In judicial discourse, atleast in the tradition of legal justice in the Anglo-American orbit, the will to power has to be constantly, in each decision, justified by an act of reasoned discourse. Judges have to give cogent reason for their decisions, which have to be publicly articulated and reported (unlike a Minister's order on files). Not merely is this articulation and publication of reasons thus structured, it has also to form part of a corpus of judicial reason itself. In other words, past decisions are a guide, and they sometimes bind, the future scope for decision. The obligation for public discourse is thus writ large on judicial power which, all said and one, is not like the executive and legislative power residing in the domain of sheer will. It also straddles the domain of reason, judicial power is the jurisdiction of reason in ways that neither legislative nor executive power is, in its very nature. (Upendra Baxi, "Judicial Discourse : Dialetics of the Face and the Mask" 35 J .I.L.I. (1993) page 1).

(9) In the imperfect legal setting and political atmosphere we have in this country, we expect our Judges to uphold the Rule of Law and yet not utterly disregard our need for the discretionary justice of Plato's philosopher king, to be cautious sometimes and sometimes to be bold, to respect both the traditions of the past and the convenience of the present, to reconcile liberty and authority, the whole and its parts, the letter and the spirit. The great judge is an "activist", a legislature who uses the law's inevitable ambiguities to promote justice and, no, doubt, he carries the merciless burden of adjudication. Justice Jagadeesan cannot take shelter under the Holmesian "can’t helps" to justify his conduct. " A judge must manage to escape both horns of the dilemma", he must preserve his authority by cloaking himself in the majesty of an overshadowing past but he must discover some composition with the dominant trends of his time - at all hazards he must maintain that tolerable continuity without which society dissolves, and men must begin again the weary path up from savagery". (Learned Hand, 'The Spirit of Liberty' 3rd Edition Dilliard, 1960, page 130).

(10) Tail-piece:

                             "I live with bread like you, feel want

                             Taste grief, need friends, subjected thus

                             How can you say to me I am a King".

                                                                                                  (Shakespeare's Richard II).

Labouring the point — A critique of

Thomas Eapen v. Asst. Labour Officer reported

in 1993 (2) KLT 241

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

1. Law is ubiquitous in important ways, that crude numbers cannot possibly capture. Many rules of law, after all, are general commands intended or supposed to serve as long-term guides to good behaviour. These rules of law cannot be measured or counted as if these one spot events, puffs of smoke that vanish into thin air in the wind. Measuring lines and pages, weighing volumes and counting laws, rules, cases and so on does not give a true sense of the import and impact of the legal words and their structures. One must look for other ways to assess the consequences of the rules set in motion by legal and judicial institutions. A decision of the Supreme Court in a Privy Purse case, in a Bank Nationalisation case, in an Indian Express case, in a Mary Roy Case, in a Shah Bano case, in an Air Corporation case, in a Maneka Gandhi's case, in a Bandhwa Mukti Morchas case, in an M.C. Mehta case, or a Christian Medical College case, or an act of Parliament giving rise to a consumer protection enactment or a National Legal Aid System are generally events whose effects ripple out in society and bring about institutional consequences; counting the words tells us nothing.

2 During the last two decades, particularly during the time of Chief Justice Gajendragadkar and in the Eighties during the period of Justices V.R Krishna lyer, D.A. Desai, Chinnappa Reddy, P.N. Bhagawati and, to some extent Y.V. Chandrachood, law-judge-made law to be more precise-increased its scope and scale in at least one important field-Industrial jurisprudence. There are few zones of immunity from law, fewer areas of life which are totally unregulated, totally beyond the potential reach of law now. This is not merely a phenomenon of legislation but of judicial activism, and it has detected often in cries of alaram a la "wolf that there is a colonisation of law in every walk of life. When the other two pillars of democracy, namely, the Legislature and the Executive have not risen upto our expectations and have undergone a deviation from heritage and propriety in recent times atleast in this part of the world, it is too natural if people look forward to the third wing of the Government, namely the judiciary, as the bulwark of democracy. As Chief Justice Patanjali Sastri observed in V.G. Row's case, AIR 1954 SC 240 the judiciary acts as the sentinel on the qui Vive.

3. As was observed by the Supreme Court in Gurcharan Singh v. Kamala Singh (1976) 2 SCC 152) the interpretation of socio-economic legislation should further the object and purpose of the legislation and the legislative history becomes irrelevant when the Act seeks to usher in a new order. Again as the Supreme Court observed in Maharaj Singh v. State of U.P. reported in (1977) 1 SCC 155 "the goal of-the legislation must make its presence felt, when the judicial choice of meaning of the words of ambigous import or the plurality of signification is made".

4. Again, as the Supreme Court reiterated in Sant Ram v. Rajinder Lal reported in (1979) 2 SCC 274 "Statutory construction, so long as law is at the service of life, cannot be divorced from the social setting. That is why, welfare legislation like the present one must be interpreted in a Third World perspective. When interpreting the context of such provisions, the Court should favour the weaker and poor clients".

5. Again, as the Supreme Court observed in Shiveshwar Prasad Naramsingh v. Ghurah (1979) 3 SCC 23) "it is a well-settled cannon of construction that when two constructions are possible, one which advanced the object of the legislation must be preferred to one which may retard or frustrate the object of the legislation". The further principle is that in all doubtful matters the beneficial should be preferred. It is embodied in the Latin expression Semper in dubis benigniora praeferanda".

6. Viewed in this background, it is disheartening - to see the Kerala High Court giving an object-defeating interpretation to a piece of labour legislation in two decisions - Thomas Eapen v. Asst. Labour Officer (1993) 2 KLT 241) by P.K. Shamsuddin, J. and Sherthallai Sree Narayana Medical Mission General Hospital v. Damodaran Krishnan Unni (1975 KLT 572) by G. Viswanatha Iyer, J.

7. The Kerala Shops and Commercial Establishments Act, 1960 has been enacted, as the preambular proclamation reveals, to consolidate and amend the laws relating to the regulation of conditions of work and employment in Shops and Commercial Establishments in the State of Kerala. It came into force on 1-3-1962, under a notification dated 15-1-1962 published in the Kerala Gazette dated 6-2-1962. By a notification dated 3-4-1979 published in the Kerala Gazette dated 5-6-1979, all the provisions of the Act have been extended to the whole State. Under S. 5 of the Act, the Government is empowered by notification in the Gazette to exempt an establishment pemanently or temporarily from all or any of the provisions of the Act conditionally or unconditionally. This, it can do if it is specified that public interest so requires or that circumstances of the case are such that it would be just and proper to do so having regard to the nature and capacity of the shop. As has been observed while interpreting the Madras enactment in Sudarsanan v. State of Madras reported in AIR 1957 Mad. 144, this clause is not intended to undo the whole Act itself, but for properly administering the Act.

8. S. 3 grants exemption specifically to persons and establishments enumerated therein. S. 4 empowers the Government to apply all or any of the provisions of the Act even in such cases. From this, it will be clear that what is intended under S. 5 is not a permanent, perpetual, perennial exemption from the provisions and purview of the proletarian-oriented statute, but a temporary interregnum from its operation in circumstances justifying or warranting it. S. 36 of the Kerala Shops and Commercial Establishments Act, 1960 provides for repeal of certain enactments which includes the Travancore Cochin Shops and Establishments Act, 1125. There is a proviso to the section which reads as follows:—

Repeal of certain enactments:—

On and from the date of the commencement of this Act in any area, the enactments, specified in the Schedule shall stand repealed in so far as they apply to such area:

Provided that anything done under the said enactments which could have been done under this Act, if it had then been in force shall be deemed to have been done under this Act".

9. What is intended by the expression is any step or action taken by the Authorities in pursuance of the enactment which was in force earlier and which cannot, by any stretch of imagination, be extended to an executive order like a notification issued by the Government. It is, therefore, clear that a notification issued by a repealed enactment cannot have any validity in the eye of law, once the new enactment namely the Kerala Act, has come into force. But, Hon'ble Justice P.K. Shamsuddin has held to the contra, while considering a case in relation to maternity benefits under the Maternity Benefits Act, 1961. In that case, the provisions of the Maternity Benefits Act were not complied with in relation to three nurses employed by the Kadampuzha Hospital, Kanjirappally and they took up the matter before the Assistant Labour Officer, who issued notices to the hospital authorities. The hospital authorities sent a reply stating that the provisions of the Maternity Benefits Act will not be applicable to hospitals which are not covered by the enactment and thereupon a show cause notice was sent asking why the prescribed amount should not be directed to be paid towards maternity benefits, and medical bonus to one of the nurses. It culminated in the order directing payment to the three nurses under S. 17 of the Maternity Benefits Act, 1961. That order was challenged in a writ petition before the Hon' ble High Court of Kerala and relying on the decisions of Justice G. Viswanatha Iyer in Sherthallai Sreenarayana Medical Mission General Hospital v. Damodaran Krishnan Unni reported in 1975 KLT 572 and by Janaki Amma, J. in State of Kerala v. Athichan Sasi 1975 KLT 839 which had arisen under the Travancore Forest Act and the Kerala Forest Act, Justice Shamsuddin, allowed the writ petition observing as follows:

"It is true that by virtue of this Notification the provisions of the Maternity Benefits Act have been made applicable to all the establishments as defined in CI.(8) of S.2. S.2 says that v establishment' means a commercial establishment. It is not disputed that this expression will take in hospitals, nursing homes and dispensaries .But, the contention raised is that permanent exemption is granted for hospitals, nursing homes and dispensaries by virtue of Notification No: L. Dis. 2186/57/LAD dated 17-4-1957 quoted above and the said Notification has not been cancelled. It is true that the Travancore Cochin Shops & Establishments Act, 1125 was repealed and re-enacted by the Kerala Shops and Commercial Establishments Act. A provision similar to S.6 of the Travancore-Cochin Shops and Establishments Act, 1125 is enacted in S.6 of the Kerala Shops and Commercial Establishments Act, 1960. So this notification will be consistent with the provisions of the latter Act and so long as the said notification has not been cancelled, it may be taken as having been issued under the latter Act by virtue of S.23 and shall continue in force until it is cancelled. Moreover, proviso to S .36 states that any tiling done under the repealed Act which could have been done under the latter Act shall be deemed to have been done under the Kerala Shops and Commercial Establishments Act".

10. It may be noted that the learned Single Judge has referred in para.7 of the judgment to the Division Bench decision of the Kerala High Court in Jayaprakash v. State of Kerala reported in 1984 KLT 903, but attempted to distinguish it. The said decision, it is respectfully submitted, has been rendered by a Bench which consisted of an eminent Labour Judge. It considered and construed the expression 'establishment' in . its ambit and amplitude in the text and the context of the Minimum Wages Act, 1948 and held that private hospitals, dispensaries and pharmacies will come under the purview of Establishment'. The Division Bench comprising Acting Chief Justice K. Bhaskaran and Justice M.P. Menon observed as follows:—

"It is true that the employment in private hospitals, dispensaries and pharmacies did not find a place in the Schedule to the Act under S.2(g) as it was enacted by Parliament. However, in exercise of the powers conferred by S.27 of the Act, the Schedule to the Act has been amended by Government of Kerala, to be operative in this State, by adding Item No.21. Item No.21 in the Schedule to the Act is "employment in shops and establishments (including hotels and restaurants)". It is reasonable to presume that what the Government had in mind, while adding item 21 to the Schedule to the Act, was to bring within the fold of scheduled employment all shops and establishments which would fall within the ambit of those expressions as understood in common parlance. A hospital, dispensary or pharmacy would be understood in common parlance either as an establishment or as a shop. The dictionary meaning of the expression establishment' is comprehensive enough to bring within its sweep a hospital, dispensary or a pharmacy, inasmuch as each one of them might fall within the expression "fixed state, a permanent civil or military force, a business, a settlement".

11. Justice Iyer's decision in Sherthallai Sreenarayana Medical Mission General Hospital Case (1975 KLT 572), it is respectfully submitted, has been rendered totally ignoring, the effect and impact of the repealing provision namely, S.36 of the Kerala Shops and Commercial Establishments Act, 1960. That case arose from a suit for arrears of salary by an employee of a hospital where the question was raised whether there was bar to a suit of that nature. The Payment of Wages Act, particularly, S.22 thereof, was considered by the Court, which came to the rescue of the employees and against the Management, which curiously enough sought the aid of the Payment of Wages Act, 1936 read with the Kerala Shops & Commercial Establishments Act to deny benefit to its employees. Justice G. V. Iyer observed as follows:—

"The Notification issued under S.6 of the Travancore Cochin Shops and Commercial Establishments Act (Act 1 of 1125 M.E.) by the Kerala Government exempting nursing homes, hospitals and other institutions for treatment or care of the sick, the infirm, the destitute or the mentally unfit has not been cancelled subsequently. A provision similar to S.6 of the Travancore Cochin Shops and Establishments Act, 1125 is enacted in S.5 of the Kerala Act, 1960. So long as, the said notification has not been cancelled, it would be taken as having been issued under the latter Act by virtue of S.23 of the Interpretation and General Clauses Act, 1125 and treated as in force until cancelled. Therefore, the Shops and Commercial Establishments -Act does not apply to an employee of a nursing home and the provisions of Payment of Wages Act also will not apply".

12. The reliance placed on S.23 of the Interpretation and General Clauses Act 1125 of Travancore Cochin may not be acceptable, or correct, it is respectfully submitted. When the repealing Section itself is making provision, we do not have to go in for a reference to, or reliance on, the General Clauses Act. In any case, it was totally incorrect on the part of Justice Iyer to have placed reliance on S.23 of the Interpretation of General Clauses Act 1125, when the General Clauses Act (Central Enactment) was the Act that was applied to Kerala after the formation of Kerala State in a number of cases.

13. Justice P. Janaki Amma's decision in State of Kerala v. Adithian Sasi (1975 KLT 839) was clearly distinguishable on facts and in law. There the question was whether a notification regarding Reserved Forests issued under the Travancore Forests Act, 1068 could be deemed to be a notification under S.19 of the Kerala Act. There also S.23 of the Interpretation of General Clauses Act, 1125 was relied on, in my respectful submission not correctly. The rationale of the decision is when the Travancore Cochin Forests Act came into force, by virtue of S. 101 (3) of the said Act the notification issued under the Travancore Forests Act could be deemed to be notification issued under Travancore Cochin Forests Act and therefore logically the one issued under the Travancore Forest Act could be again deemed to be under the Kerala Act. This does not lend validity, or support, to the reasoning of Justice Shamsuddin.

14. Even a Devaswom establishment has been held to be an establishment coming within the purview of the Shops and Commercial Establishments Act by the Kerala High Court by Justice Gopalan Nambiar, in Supdt. v. Kunjan Kartha (1967 KLT 941). Interpreting S.2(4) of the Kerala Shops and Commercial Establishments Act 1960 and construing its scope and ambit, Justice Nambiar observed:—

"The words "an establishment or administrative service in which the persons employed are mainly engaged in office work" in the definition of the term commercial establishment' are peculiar to the Kerala Act and nothing corresponding to them is to be found either in the Madras Act or in the Travancore Cochin Act on the subject. It seems that with the above statutory definition, the only question is whether the Devaswom fills me bill for the limited purpose of the Act, and not whether it can be said to be a commercial establishment for all purposes whatsoever. On me terms of the statute taken along with the facts as found, the conclusion seems to be inescapable that me Devaswom satisfies the definition of a commercial establishment for the purposes of the Act".

15. As held in New India Sugar Mills v. Commissioner of Sales Tax, AIR 1963 SCI 207, is a recognised rule of interpretation of statute that the expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the court would be justified in assuming that the legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its powers invalid. In interpreting a statute, the Court cannot ignore its aim and object".

16. When two intepretations are feasible, that which advance the remedy and suppresses the evil as the legislature envisioned must find favour with the Court and the definitions in the Act are a sort of statutory dictionary to be followed, when the context strongly suggests (Carew & Co. v. Union of India, reported in (1975) 2 SCC 791). This was again emphasized in State of Haryana v. Sampuran Singh reported in (1975) 2 SCC 810) where the Court held that it is settled law that Court should favour an interpretation that promotes the general purpose of the Act rather than the one that does not. Public law in our pie-bald economy and pluralist society responds to social challenges and constitutional changes. To miss the ideological thrust of our Constitution and economic orientation of our nation while construing the legislation relating to public law and scanning them for their validity is to fail in understanding the social philosophy that puts life and meaning into the provisions of the Act. The Law, being realistic, reckons with the socialist sector favouring State and Co-operative enterprises. Again, as the Supreme Court stated with emphasis in Maharaj Singh v. State of U.P. (1977) 1 SCC 155) the goal of the legislation must make its presence felt while the judicial choice of meanings of words of ambiguous import or plurality of signification is made. "To be literal or be blinkered by some rigid canon or restriction may be to miss the life of law itself. The context controls the text and the purpose and scheme project a particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modified by contextual compulsions". The Shops and Commercial Establishments Act being such a social-economic piece of legislation should be elaborately construed so as to advance the object of the Act and fulfill the importance to be achieved thereby. Cutting through this legal thicket of confusion what remains to be established are the beneficient intention and the benefits that flow from the legislation. While approaching the construction of a legislation having sociological relevance, judges would do well to remember the words of Chief Justice Charles Evans Hughes when he began the conference in the Yehovah 's Witnesses case, "I come up to this case like a skittish horse to a brass band".

17. Law, as Justice Holmes and Justice Cardozo used to emphasise, is an effective instrument of social engineering. It is not an ivory-tower abstraction. Law must be on speaking terms with life and socio-economic legislation has to be interpreted with a purposive approach. While Judges need not be less passive or more obstrusive personae, they could at least resist the temptation to put the clock back.

18. It is true that Courts cannot just pluck interesting issues out of the air and decide them for the benefit of future generations. When the Court's agenda changes, as it surely does in the area of industrial jurisprudence, the change is most frequently a delayed response to change in the nation's agenda. It is dictated by external forces - the actions of other branches. The Court is only rarely in the forefront of establishing new major legal standards, and its articulation of principles of social policy has typically been within the bounds of general public perception at the time. The story of the labour and the Constitution is illustrative.

19. Judges interpreting socially purposive legislation would do well to recall the words of Lord Denning in Nothman v. London Borough of Barner (1978)1 All. E.R. 1243(C.A.)):—

"Faced with glaring injustice, the judges are, it is said, impatient, incapable and sterile. Not so with us in this Court—Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it by reading words in, if necessary, so as to do what Parliament would have done had they had the situation in mind."

or the following observations in Seaford Court Estates Ltd. v. Ashes ((1949)2 All E.R. 155(C.A.)) quoted with approval by our Supreme Court in M. Pentiah (AIR 1961 SC 1107), "when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding out the intention of Parliament and then he must supplement the written words so as to give "force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out. He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases".

20. Tail piece:—The Government of the State of .Kerala is understood to have since issued a Notification bringing hospitals within the purview of the Act.

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.