Rappai v. Anthappai

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

Giant Anthappai was in the business field

Clients he had all over the world

Collapsed all on a sudden he in trade and business

Empty was his purse and disappeared his friends

                      "Squandered he money like a prodigal son;

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

                       Debts he had to repay and suits to defend

                       Dejected was he and neglected by all.

Rappai-his neighbour, a teacher retired

Sent he his daughters, except one, with suitable grooms

Sons are well placed and lead they a happy life

Deposited he money for the daughter and ornaments in the locker

                        Attended he church early in the dawn

                       Offered he prayers with family in the dusk

                       Referred he gospels and also psalms

                       Loved his neighours and gave poor alms.

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

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

Lamented he always towards the needy and orphans

Helped he a lot the widows and destitutes

                        Shedding tears came Anthappai and said

                        "Wife is of frail health, debts to repay

                        Life is at peril; lend me some money

                        Rappai, my friend, I promise to repay"

"Love Thy neighbour" provoked, simplicity stirred up

Sympathy weighed and Christianity awakened

So, he loaned not a paltry amount of twenty

But Rupees thousand in fifty

                        Blessings he showered and prayers he promised

                        Issued Anthappai a cheque, (Rappai not insisted)

                        Promised to repay with interest at twelve

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

Flourished Anthappai in trade and business

Exported he frogs, prawns and fish

Encircled him friends and showered laurels on him

Clasped they hands on hearing him at Lions and Rotary

                        Played he ducks and drakes with money

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

                        Purchased he vehicles - heavy and light

                        Plots he bought and boats he owned.

Demanded Rappai his money without interest

To send his daughter with a handsome groom

Hard hearted Anthappai unfolded his hands

Hard pressed Rappai appealed for his money

                        Mediators intervened and business tycoon refused

                        Met Rappai a lawyer and sent him a notice

                        Reply he sent and disowned the cheque

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

Filed he a complaint under the N.I. Act

Swore he before the Magistrate truth and nothing but truth

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

Never Anthappai appeared; but Rappai was present

A year and more expired, Rappai was tired

To avert a dismissal he must be present

                       "One year expired; service is not completed

                         Your case is closed" said his lawyer

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

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

Got back the cheque and thought for a while

Rushed he to the station to square up the problem

Made he a yowl and stood there with tremble

Explained he the grievance with folding hands

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

                          Brought him there and stood he with culprits and cut throats

                         "Give him soon whatever is due", Inspector shouted

                          In bundles he brought currency without demur

Principal and interest Rappai got

Returned he home with confucius' words

"I give credit; you no pay

I get mad

You ask credit; I no pay

You get mad

BETTER YOU GET MAD"!

Crime by implication

Justice K. Sukumaran, Senior Advocate, Supreme Court - Former Judge, Kerala and Bombay High Courts)

(1) By a judgment rendered on 24th of June, 1993, the Kerala High Court confirmed the conviction and sentence passed by the Sessions Court, Ernakulam, against Jiinaid and Azees. The offences alleged were under the N.D.P.S. Act. A thirteen year term of imprisonment was the deterrent punishment imposed by the Court as mandated by an inflexible law. The accused were found to be in possession of 11.6 and 11 gms. of cannabis. The crime came within S.20(b)(ii) of the Act and not under S.32, the residual section which provides for a lighter sentence - declared the court.

(2) The accused approached the Supreme Court. After some interlocutory proceedings, leave was granted.

One contention subsequently taken, was based on a failure to comply with S.50 of the Act. The Supreme Court had considered the scope and ambit of dial section in an elaborate decision in Balbir Singh's case (1994 (3) SCC 299). That section mandated the search being conducted in the presence of a Gazetted Officer, if the accused desired so. In that context, an added obligation was on the Investigation Officer: he must appraise the accused about such a right an accused has under the Act. A failure to do so will result in an acquittal of the accused.

(3) The view of the Supreme Court about the duty of the officer to inform the accused of his right to be searched in the presence of a Gazetted Officer has a striking similarity to the approach of the English Court which held that “a convicted person is entitled to know the extent of monetary liability; a fortiori when he is liable to lose his liberty if he fails to discharge monetary liability." (See R. v. Porter, 1990 All. E.R. 784).

4. The principle was affirmed and expanded benevolently in favour of the accused by two later decisions: Ali Mustaffa's case, 1994 (6) SCC 569; and Sayed Mohd's case ((1995) 3 SCC 610).

5. Applying the principles of those decisions the Supreme Court allowed the appeals and set aside the conviction and sentence.

6. The decision so rendered made it unnecessary for the Court to consider other contentions.

7. One such contention related to the meaning of the term 'cannabis'.

8. The High Court noted that the term is not defined in the Act. Cannabis (hemp) is, however, defined in S.2(iii) as: (a) charas, dial is, separated resin in whatever and whether crude or purified, obtained from the cannabis plant and also includes concentrated and resin known as hashish oil or liquid hashish.

(b) ganja that is the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;

9. The High Court was of the view that 'there are clear indications in the Act that the Parliament regarded cannabis as the genus of which cannabis (hemp), cannabis resin, medicinal cannabis etc. are species.'

10. The reasoning rested mainly on the description of title of the S.14 dealing with "Special provisions relating to cannabis", and on the words "Cannabis (excluding charas)" as occurring in S.10 of the Act. (S.10 dealt with the Rule making power of the State Government). In other words, a meaning was assigned to the term "cannabis', by an implication as it were.

11. The conclusion of the Kerala High Court appears to have overlooked some relevant aspects. At least one decision of high authority was sadly missed by it.

12. It may be noted that the enactment in question is based on an International Convention. The preamble to the Act loudly proclaims that the Act was, among other things, 'to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances..."

13. That is not without significance. The fact remains that an International Convention is the spring board for the national legislation; a duty to have the interpretation in tune with international approaches to the problem arises in such circumstances.

14. The term "International Convention" is defined in S.2(ix) as including the "Single Convention on Narcotic Drugs, 1961". Article 28 of the Convention can be usefully extracted here:

1. "If a party permits the cultivation of cannabis plant for production of cannabis or cannabis resin, it all apply there the system of controls as provided in Art.23 respecting the control of opium poppy.

2. This Convention shall not apply to the cultivation of cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.

3. The parties shall adopt such measures as are necessary to prevent illicit traffic in, the leaves of the cannabis plant."

15. It may be noticed that the Convention employs distinct words such as cannabis, cannabis plant and cannabis resin. A distinction carefully kept and maintained by the Convention cannot be permitted to be evaporated while undertaking a construction of the Act based on that very Convention."

16. There does not appear to be any universal concept regarding the word 'cannabis'. The corresponding English enactment -the Misuse of Drugs Act, 1971 - defines the term 'cannabis' "as made from the leaves of the cannabis sativa plant", (emphasis supplied), Cannabis (hemp) on the other hand refers to 'charas' and that in turn is 'the separated resin.... obtained from the cannabis plant'. (emphasis supplied). 'Crime in England' contains a passage in Page 31 on 'Cannabis', giving some general information:

"Cannabis is made from the leaves of the Cannabis Sativa plant grown widely around the world. Herbal cannabis, or 'grass', is a preparation of the dried plant material. The plant can be processed into cannabis oil, rarely found in the U.K., Hashish, or 'hash' is resin scraped from the plant and made into blocks; it is the most common form in the U.K."

17. Are the courts to give minute attention to the differing parts of a plant from which cannabis is made? The answer appears to be in the affirmative, according to the indications available from the decision of the House of Lords, in D.P.P. v. Goodchild, 1978 All. E.R. 161.

Lord Diplock, has explained with comforting lucidity everything relevant in the context. The botany of Cannabis Sativa plant, and the pharmacognosy of the finished product cannabis resin have been discussed in a cute condensed form.

18. Cannabis Sativa is one of the oldest cultivated plants in Asia. It grows to a height of 4 feet to 16 feet and thrives in tropical and temperate climates. The seeds serve as cattlefood and are also used in the manufacture of soap. The plant contains hallucinogenic ingredients. That makes the difference for the addicts. The hallucinogenic ingredients are found in the resin secreted in the pairs of trichomes on the leaves.

19. Cannabinol derivatives are many and varied. THC - Tetra-hydro Carbinol - is a potent and important derivative. The resin is extracted by brushing off the part of the plant. The flowering and fruiting part contains most of cannabis. The significance on (lie emphasis of the part of the plant producing hallucination, cannot therefore be missed.

20. The accused before the court in the case which went upto the House of Lords was found to be in possession of 1/4 lb. leaf and stalk of cannabis plant. They were charged with offences punishable under S.37(1) of the Act. The schedule to the Act contained 120 drugs, mostly synthetic. Class A drugs roped in poppy straw. Cannabis, and Cannabis resin fell within Class B. The punishment in respect of Class B drugs was comparatively light; only five years of imprisonment. Cannabinol and Cannabinol derivatives were in Class A, and punishment for their possession was seven years.

21. The accused was not found to be in possession of flowering or fruiting tops. A qualitative analysis however, revealed the presence of some THC in the leaf and stalk. The Trial Court held that the accused was in possession of cannabis, and punished him on that basis. It was also found that he was in possession of cannabis derivatives that had been identified as a constituent of the material. The High Court allowed the appeal and held that the leaf and the stalk did not come within the definition of cannabis. This view was upheld by the House of Lords as well.

22. That was not to the end of the sufferings of the accused. He was charged with possession of a 'cannabinol derivative'. The Trial Court held him guilty, as the cannabis leaf and stalk in his possession, on analysis, was found to contain traces of THC. His appeal to the Court of Appeal was not successful, this time. He went to the House of Lords.

23. The question was found to be of general public importance; and was posed:

"Whether.......a person in possession of some leaves and stalk only from a plant or plants of the genus cannabis may ... thereby be in possession of a cannabinol derivative naturally contained in those leaves......"

24. Lord Diplock started the discussion by reminding the House that 'the 1971 Act is a criminal statute'. It was also recalled that some listed drugs although they can be synthesised, also occur in a natural state in plants. The idea was demonstrated with reference to morphine. Lord Diplock was clear in his thoughts; and he expressed them forcefully;

"It would not in my view be a natural use of language to say, for instance that a person was in possession of morphine when what he really had was opium poppy-straw from which whatever morphine content there might be in it had not yet been separated; nor do 1 think it would be an apt use of language to describe poppy-straw as a preparation or other product containing morphine Since this expression is inappropriate to something found in nature as distinct from something that is man-made."

25. He noticed a similar indication in Cocaine and Coco leaf.

Having made those observations, he expressed his prima facie view thus:

"So prima facie one would not suppose that possession of naturally occurring leaf and stalk of the plant cannabis sativa of which a cannabinol derivative, THC, was an unseperated constituent could be charged under the 1971 Act as possession of a "cannabinol derivative'.

26. The argument to the contrary was thereafter adverted to and dealt with. This is of greater relevance in this context:

'The argument to the contrary depends on the words of exception .... These, it is suggested, give rise to an inference, that but for the exception cannabinol and cannabinol derivatives...........would have fallen within the definition.....'

27. The House unhesitatingly repelled the contention observing:

'My Lords such inference as to the ambit of enacting words that one, since the proviso or exception may have been inserted per majorem cautelam.'

and later declaring:

"I would construe the 1971 Act in such a way as to avoid this irrational and unjust result. A man should not be goaled on an ambiguity."

28. The approach of the House of Lords, it is submitted should have commended itself for acceptance by the High Court. In any view of the matter, a helpful discussion of a cognate issue by an acclaimed authority, should not have escaped the Judicial gaze of the High Court.

29. The reasoning of making out a crime by implication, based on the tapering wording of S.10 is also tenuous.

30. Section 10 — the Rule making power of the State Government.— has to be properly understood from a correct perspective of the statutory scheme.

31. The Act deals with one of the most important aspects of our National life. The withering away of the Flowers of Life - the youth of this country-by contact with and consumption of this deadly poison is a distressing daily sight. These drugs act like a iron hand in velvet glove. They destroy the present generation and paralyse the future ones too.

The most potent of the drugs are dealt with greater seriousness. This situation, therefore does not permit imposition of one of the harshest penalties on a citizen. Punishment is impermissible on the basis of laws having pythan ambiguity.

32. The rule making power is shared between the Centre and the State. Even a casual glance and comparison of the two sections will reveal that the State Government are invested with Rule-making power concerning the less dangerous drugs. Cannabis (Hemp) is thus included as item 2 in the Schedule of the Central Rules.

33. The State Government does not possess power to make a rule respecting a drug to be dealt with by the Central Government. This idea is exemplified ex abundanda cautela; while drafting S 14 Charas, one among the categories coming under the definition of Cannabis (Hemp) was thus excluded from the Rule-making power of the State.

The reasoning of the High Court based on the heading prefixed to S.14 is not a sound one. It is well settled that they 'cannot control the plain words of the provision' (See Frick lndia Ltd. v. Union of India, AIR 1990 SC 689).

35. Even assuming that there is some ambiguity, in the language of the Act, the benefit should go to the accused. The principle is too deeply encrusted in our jurisprudence to be blasted by a single strike. There is a massive collection of the case law at page 43 of Gour's "The Penal Law of India" 10th Edn.

36. Many of the decided cases assume that a mere presence of some 'ingredients of cannabis sativa is sufficient to bring the substance within the meaning of 'cannabis'. An authoritative decision can be awaited.

37. Balbir Singh's case (supra) has dwelt at length with the harshness of the statute and the necessity for the Court to modulate the approach of the Court to protect the precious rights of the citizen. In RR v. Crown court (1989 (3) All. E.R. 673) the court observed how the Drug Trafficking Act made draconion in roads into ordinary principles and emphasised the necessity for a balancing ofdifferentconsiderations.lt is significant that the Court also made a reference to Human Rights. Their influence and impact in the interpretational process is easily realised these days.

Is Our Constitution a Non-Fundamental Document?

(N. Haridas, District Judge, Alappuzha)

What immediately distinguishes our Constitution is its unusual length, running into nearly three hundred closely printed pages containing 395 articles, too many schedules and innumerable amendments. We do claim to adopt and borrow the practices of British Parliamentary government, but the British have no Constitution in writing. The British Parliament is working as the perpetual Constituent Assembly or Convention. Among the written Constitutions, as the fundamental law supporting a mighty republic, the Constitution of the United States stands most distinguished, but this classical document is only in seventeen printed pages. In comparison, the Constitution of Ireland is 30pageslong, Australia21 pages, the Basic Law of Germany 48 pages, and that of Japan 11 pages. The ideal constitution of Switzerland is in 25 pages and that of the latest French Republic 15 pages. After India, the longest document is the Constitution of Austria - in 60 pages. The Constitution of Israel is the shortest - only 6 pages, and the Constitution of Greece - the birth place of democracy - is in 22 pages. India's Constituent Assembly debated the making of a Constitution for four long years, and satisfying all precautions for administrative detail and doubt-clearance, the complex instrument was adopted. But that this volume deprives the document of its claim as fundamental law, has missed the draftman's quill. In the jungle of articles and schedules, the fundamental incidents are seen indistinguishably lost, and now there is more ordinary law than fundamental law in the text. This unequal coexistence between the fundamental and the ordinary .remains an abominable problem in making judicial commentary also, leading to consequences in bad law.

2. No prophetic insight needed to say that a Constitution shall lay down only the fundamental guidelines of a state. Ordinary law, which is non-fundamental and municipal, must find its place in the code of ordinary laws, and not in the constitutional text. The judicial power of the Union must be the inevitable part of sovereign power. How the framers define judicial power in the American Constitution, presents a good case-study on the nature of basic laws. That document defines that "the judicial power of the Union shall vest in a Supreme Court, and also in such other courts which the Congress may ordain and establish", and leaves the details of judicial organisation for the legislature (Congress) to formulate and establish. Similarly that basic law prescribes the method of election to the offices of the President, the Vice-President, the members of the House of Representatives and the Senate; how an impeachment motion is to initiate and proceed, and on what reasons etc., but gives no other directives on further congressional procedure on these questions. The Constitution leaves those future details to develop along democracy's firstprinciples. This incompatible, or rather enforced co-existence of the fundamental and the ordinary in our supreme document, creates a lot of misdirection on the content and meaning of our basic law. The draftmen's motive in incorporating such trifling administrative details also into the Constitutional text, had been prima facie a laudable one - to secure clarity within easy reach; - but then what results is that the Constitution itself is looking like a commentary, on an otherwise ought to be fundamental law. It must cause concern that the non-fundamental details, get undeservedly elevated to the status of fundamental law and in the resulting confusion. It is the fundamental law which suffers a set-back. The anomalous equation of the non-fundamental and procedural with the fundamental, in the constitutional text, remains a dangerous factor plaguing the basic concept in judicial review also. The framers of the American Constitution even avoid to mention therein the structure and functions of an electoral college, deciding on the election of the American President, and leaves it as the future business of the Congress. So is the case of judicial power, which in fact had been really fundamental to have more detail. A study in retrospect will convince the constitutionalist that our framers have ignored the historic rule that the Constitution shall contain only the fundamentals.

3.  This criticism that the Constitution shall exclusively be a body of basic laws alone, and therefore the inflation of this text into big volume by including the mass of governing details, will distort the meaning of fundamental law, does not appear stressed in the debates in the Constituent Assembly. All opinions were inexorably moving towards the aim that the working of the Constitution shall not be hindered by any doubting and gaping impasses - and so they thought that the more explanatory it is, the better. So the Constitution descends down to enumerate even bureaucratic offices like Attorney General, Auditor General, Public Service Commissions etc., which details are eligible to be the subject matter of a statute in administration law. Also there is a large body of articles describing legislative procedure governing the transaction of business in the Houses of Parliament and Assemblies, the distribution of finances, re-organisation of state-territory, the powers and departments under the Union and the States etc. Then there are chapters dealing with trade, commerce and contracts. The Election Commission and its powers, the conduct of elections etc. can very well be part of the Representation of People Act. We must remember that when we speak of the British Constitution, we do not think of the British Police Act, The Mental Health Act, The Poor Law or the Fire Services Act; but we think of the Magna Carta, the Bill of Rights, The Habeas Corpus Act, The Petition of Rights, The Act of Settlement etc. As fundamental Law, a written Constitution need lay down the composition and power of the legislature, the executive, and the judiciary of the Union and States, define the Bill of Rights, set out Constitutional remedies, confirm the primacy of basic principles, provide for amendment to the Constitution etc. The hundreds of other questions in running the state-machine can be left to be enacted and codified under ordinary laws, and matters like emergencies can be left to be handled by the executive. But what we see is that what is usually called municipal law, is underservedly placed on a par with fundamental law, and this placement is confusing to the sense of constitutional primacy. The preamble or articles make no distinction that one article declaring a fundamental right belongs to a superior category, and another article declaring the powers and privileges of an ordinary office as part of an inferior law. But for the classifications attempted judicially and with hesitancy all articles in the Constitution stand independently equal.

4. A peoples' inalienable and natural rights are not born from the matrix of the Constitution, and it is on this point that our judicial interpretism suffered seriously. Suppose a Constitution is overthrown; do the people forfeit their natural rights by such overthrow? In this search, the history of the Philadelphia Convention on the Bill of Rights provides an intersting anecdote. The inclusion of Bill of Rights (now superbly fundamental) in the American Constitution had been opposed by the majority in the Convention, who argued that it is ridiculous to remind the citizen of his fundamental right to awake in the morning, breakfasting at 8 a.m., eat his lunch at mid-day, dinner at 8 p.m. and then his irresistible right and inclination to go to bed at 10 PM. Any how, not having a Bill of Rights in writing had been viewed as an act of neglect of the civilized rights of man, and only the relentless pressure of the proponents could persuade a reluctant Madison to incorporate a Bill of Rights, by an immediate amendment. This discretion and over caution of the framers to demarcate only the fundamental frame-work alone in the text, speaks of their rigorous selection of fundamentals for inclusion in the constitutional text.

5. The Constitution of a republic cannot be a ready-reckoner for every unfolding politican situation. Madison says "There must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutiae". Emphasising the inevitability of implied powers, Marshall says that "a Constitution to contain an accurate detail of all the sub-divisions, of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves". During arguments in the Kesavananda Bharathi case, a heavy mass of juristic logic had to be dragged into and traded in the court-room in order to identify the rare fundamentals from the jungle of prolix Constitutional text, overloaded with municipal details, and thus the basic structure theory was developed for judicial view. Even the Counsel and the Court seemed reaching a blind-alley injudicial reasoning for a while, and to accept these rights dearest to freeman, there ultimately was the majority of only one vote. A rediscovery of human rights became an onerous job once again, and the contenders were seeking and reading every letter in every article again and again, and the identification of fundamental law from the complex text became a very difficult job for the court to undertake. The reason is that the large body of ordinary law in the text almost swallows up the fundamentals, making the fundamentals as such dwarfed as the ordinary.

6. Man's natural and inalienable rights are not born out of a written Constitution. A Constitution shall define only the frame work of the state and its powers, the relation of the state with the citizen and his rights etc, which are necessary to define the basic rules of bond between man and state, and nothing more. But in the Kesavananda Bharathi case, the court decision appears anchored on the principle that the source of all human rights is the Constitution itself. Instead of emphasising the rights of man so precariously defined in the case, the subsequent Habeas Corpus Case placed dangerous restrictions also on the rights of the citizen narrowly upheld in the Kesavananda Bharathi case.

7. The purpose of this write-up is not to attempt an exhaustic marking out of the outline of what ought to be the fundamental facts making our basic law. But easily we know that the large body of materials included in the Constitution could have been kept out of the text, and made the subject matter of different statutes in ordinary law. The great democracies say that a Constitution, as fundamental law, need not run for more than fifteen to twenty pages. The election rules can be the subject matter of the law on elections, the service rules can be part of service law, The legislative procedure another ordinary law, and so it goes on. On gaining freedom, India was suddenly changing into a republic, and in that speedy transition, the framers might have thought it wiser to adopt a voluminous document literally planning for every minor political eventuality. But the transition of the American colony into a democracy was speedier and more abrupt and their precedents more vague, but their basic document could be as brief as 17 pages. By arrangement and synthesis, when there is equal importance for every article, the court is forced into the controversy of seeking out the 'original intent' of the framers in constitutional non-interpretism. Then, is it not abhorrent to our constitutionalism to see an article on the salary claims of an official becoming entitled to an equal treatment with the inviolability of an article in the Bill of Rights?

8. A Constitution, codifying fundamental law, necessarily granted implied powers. The power of a government to legitimately punish the violator of its laws is historic, but this is not a power enumerated in any article in any Constitution. The high power of judicial review also is not raising its head through any single article in the Constitution; but without granting primacy to this power of courts, the rights of man will remain merely fiction. Though unexpressed literally, this implied power is seen more and more emphatically read into the Constitution in course of time by our courts. Regarding an emergency like war, mutiny or calamity, the court and the legislature are bad managers. But the court must be there to balance the situation and check any abuse. But unlike the other leading Constitutions, our Constitution empowers the declaration of emergencies, the suspension of fundamental rights etc. An emergency is a question which shall be confronted by the executive when the factual situation of war, rebellion etc. exists. But the inclusion of an article explaining the reasons justifying an emergency and authorising its use, makes its imposition not only legal, but constitutional also. Sometimes in anticipation of reconstructing a factual situation later on. In the Constitution of Japan, Ireland, U.S.A. etc, there is no article authorising the declaration of emergency or the suspension of citizens's liberty, but when a situation of war, mutiny, or calamity exists, an emergency has to be clamped, out of necessity. There this extraordinary step is empowered not by an article in the Constitution but by the need of an extraordinary circumstance. A Constitution cannot direct how a war is to be waged and won, and similar the case of managing an emergency.

9. In our Constitution, perhaps the sole guideline to the basic principles of governance is the preamble. Even the 'Fundamental Rights' fail to retain its special primacy as a Bill of Rights, as it is given only an equal place with the other chapters and articles enacted in ordinary law. Or the framers could have divided the Constitution into fundamental and non-fundamental parts, in order to protect the primacy of fundamental law.

10. The partisans of detail may say that the Indian Constitution is the best working basic law among post-war Constitutions, and this uniqueness is solely due to its voluminous detail. A Constitution sustains and survives only on the commitment of its people to the ideals, and more so on the quality of its leadership, and rearely because of the wisely crafted idioms and phrases superbly interspersed in its clause. A Constitution, in reality, presents the face-look of the nation. All modern Constitutions, without exception, accept all the important basic principles in free government, and differ only in detail, but how long they could live with the ideals and fundamental law, depends on their democratic discipline and loyalty to the system. A fundamental law cannot descend down to explain every minor detail in bureaucratic logic.

11. This wrong co-existence between the ordinary and the fundamental, is the main reason enabling to challenge the basic rights also enumerated in the Constitution. A Constitution shall represent only the supreme law of the land. For decongesting the overcrowded document, the ordinary laws, now taking up the lion's share of the constitutional space, has to be amended out, and such rejected parts are to be re-enacted into different ordinary statutes, according to the subject and department it represents. Here I will specify that such severance need not present any problem in law, as the amending process will not touch on the basic structure schemed in the document. The emergency provisions also can be scrapped, and the executive can be authorised to deal with a factual emergency, and any excess checked by courts in judicial review. This incongruous combination is the reason causing a lot of confusion in judicial review, and thereby causing serious damage to the rights of the citizen on many occasions.

A Comment on 1995 (2) KLT 386

(By P. Rajan, Advocate, Thalassery)

A Division Bench of our High Court recently held that offence under Section 138 of the Negotiable Instruments Act, 1881, cannot be compounded by invoking Section 482 Cr. P.C since the Act does not expressly permit composition and Section 320 (9) Cr. P.C. also prohibits; according to the learned Judges. The point to ponder is though the enactment in question is silent On this aspect, can't the High Court permit composition of the offences being under a special statute, considering the scope, ambit and purpose of it?

The newly inserted provisions in the Negotiable Instruments Act 1881, Sections 138 to 142 (Amendment Act 66/88) speak of the offence, mode of trial and punishment. It is pertinent to note that these provisions have been introduced to check the menace of issuing cheques indiscriminately by persons knowing about the consequences on presentment to the banks and afterwards, causing embarrassment to many, including bankers. Civil suits often and rarely complaints under Section 420 I.P.C. were the remedies of the aggrieved, till then. Since Act 66/88 has came into effect from 1.4.1989, effective remedy is extended to the drawee or holder in due course of a cheque even dishonoured by the drawer's bank to achieve desired legislative intent, General law regarding period of limitation, jurisdiction of trial court to award sentence etc. have been specially mentioned in the statute itself, by passing the general provisions contained in the Code of Criminal Procedure. It is expressly made clear that the provisions in the Act alone need be looked into, while trying a complaint under Section 138 of the Negotiable Instruments Act for several purposes. Time to launch a complaint is minimised to 45 days only, on issuance of the statutory notice contemplated under Section 138(b) of the Act and a First Class Magistrate is empowered under the Act to award fine amount exceeding Rs.5,000/-. These special features are strikingly different to Section 468 and Section 29 of the Code of Criminal Procedure. This has gained approval of our High Court (1993 (2) KLT 769), also.”

Considering these patent deviations from the general rules of law, it is reasonable to opine and prudent to think that the purport of the enactment is to give rapid remedy to the complainants' by avoiding the normal and cumbersome procedures under general law, which occasionally occur. If so, can composition be refused, even if the statue is silent? The learned Judges have refused permission mainly holding that Section 320(9) Cr. P.C. is an express bar for compounding other offences, if not detailed in Section 320(1) and (2) of the Code. In effect sub-section (9) speaks about the process of composition and the same could be done in the manner Section 320 Cr. P.C. permits. For example, persons who are competent to compound the offences under the Indian Penal Code are detailed in sub-sections (a) and (b) of Section 320(4) and only such persons can compound those offences. Section 320 does not say that if a special enactment does not favour compounding of offences under that statute, this provision under the Code cannot be pressed into service. In short, if circumstances warrant, courts can permit composition in the manner in which Section 320 prescribes, for procedural formalities. Even if Section 320 is in applicable, as held by our High Court, will it curtail the inherent powers of the Hon'ble High Court to allow settlement of complaints by invoking Section 482 Cr. P.C. Section 482 with its wide scope, permits the High Court to act in order to secure the ends of justice. Considering the purpose of the enactment, coupled with the relief and remedy that could be given to the concerned parties the High Court can permit compounding of complaints by resorting to Section 482 Cr. P.C, at least by over-looking Section 320 Cr. P.C. Otherwise, sometimes, the complainants also would be placed in a disadvantageous position; say for example, if a trial Court does not award, after the conclusion of the trial, the entire cheque amount as fine to the accused, and chose to tack on a short term of jail sentence as part of the sentence, complainant's grievance remain not redressed. Even though the accused is liable to pay the whole cheque amount, and the complainant could not appeal for enhancement of sentence, or his attempt before the appellate forum became futile, the desired result remain unachieved. If the accused in such circumstances if attempt to settle the complaint before the appellate forum in his appeal, by offering the entire cheque amount, probably to avoid the jail term, the present ruling put both the parties in peril. Relating to an offence under Section 138 of the Negotiable Instruments Act, dishonour of the cheque by the bank itself does not give cause of action to the drawer. This is an advantage given to an accused to make payment after dishonour of the cheque and on intimation from the payee. This seems to be avoid litigations at the first instance itself, without giving any time to settle the disputes out of Court. In grievous offences which are non-compoundable, the Apex Court has granted permission after considering certain reasons advanced by the parties, in appeals filed under Article 136 of the Constitution. (AIR 1988 S.C. 2111). If so, the High Court also can extend the relief of composition under Section 482 Cr. P.C. Since complaint under Section 138 of the Negotiable Instruments Act are on escallation. Genuine attempts for settlement by payment of the amount, though belated due to varying reasons, will remain unanswered otherwise. Thus a larger Bench's intervention is needed to resolve the issue, in order to express desired motto of the law makers.

*The Importance of being a Lawyer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUSTICE, social, economic and political;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Foot Note

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