Law of Intestate Succession — A Comment on

1995 (1) KLT 403 (SC)

(By T.J. Michael, Advocate, Thodupuzha)

The finding of the Hon'ble Division Bench of the Apex Court, in Radhika v. Agnu Ram 1995 (1) KLT 403, it has to be submitted with respect to the Hon'ble Judges that one would be afraid whether it is not against the proposition of law laid down in the same decision.

The law of intestate succession in the case of property inherited by a Hindu female from her father or mother, is contained in Ss.15 and 16 of the Hindu Succession Act, 1956. The non obstante clause contained in sub-section (2) of S.15 lays down that where there are no sons or daughters and no children of a pre-deceased son or daughter of the deceased; the property will devolve upon the heirs of the father. But in the instant case the deceased intestate woman has a daughter. As is understood, the widower husband has filed the suit for partition of the properties of the deceased wife on the premise that he and the defendant daughter are the heirs of the deceased. From the facts it seems that the method of succession contained in S.15(2)(a) is not applicable to the case since the deceased has a daughter. Therefore with great respect one has to doubt whether the interference, with the concurrent findings of the District Court and High Court that the appellant and respondent are the heirs of deceased and they inherit in equal moiety, is justified.

"Bundhu" Mukti or Mochan: A Daniel Come to Judgment

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

Daniel came to judgment on the 28th July, 1997 when a Kerala High Court Full Bench boldly declared illegal bundhs called by politicians and trade unions, holding the helpless and hopeless public to ransom. The tumultuous welcome given by the public to the judgment delivered by Justice P.K. Balasubramanyan speaking for himself and Justices Balakrishnan and Koshy is indicative of, if any indication was called for at all, the sign of relief of the public who were utterly helpless in the face of the threats and intimidations of these self-seaking "popular leaders" and their unruly following. The organised orgy of violence and vendalism let loose at the instance or insistance of those so called social, labour and political leaders has been depriving the common man of this country of this fundamental right to travel and to persue his avocation. Quite expectedly, only the politicians and persons who indulge in goondaism masquerading as trade unionism have grided up their loins against the welcome verdict of the Kerala High Court.

I am reminded of Frank Anthony's words uttered in Parliament on the 3rd of May, 1973 soon after the supersession of three senior Judges of the Supreme Court by the Indira Government. Strongly denigrating the hole-end corner, unprincipled political coup perpetrated against the Supreme Court by the Indira Government, Anthony said, "Today, persons who are committed to the murder of democracy are mouthing slogans about democracy. The first postulate of democracy is the rule of law and the first postulate of the rule of law is an independent judiciary. To whom did the citizen and the minorities look for protection against the lawlessness of Government? An independent judiciary". (Quoted in "Crisis In Indian Judiciary" K.S. Hegde, Sindhu Publication, Bombay (1973) P3).

The Bench hit the nail on the head when it said, "No political party or organisation can claim that it is entitled to paralyse the industry and commerce of the entire State or Nation and is entitled to prevent the citizens not in sympathy with its view point, from exercising their fundamental rights from performing their duties for their own benefit or for the benefit of the State or the Nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of the fundamental right by political party or those comprising it". Equally unexceptionable is the observation of the Bench, rejecting the Advocate General's untenable contention to the contra, that as the organised bodies or associations or registered political parties, by their out of calling and holding bundhs. trample upon the rights of the citizens of the country, protected by the Constitution, the High Court has sufficient jurisdiction to declare that the calling of a bundh and the holding of it, is unconstitutional.

I believe the trinity of the Kerala High Bench, which rendered this landmark decision, might have had in its mind the words of Chief Justice Warren in Trop v. Dulles (356 U.S. 86 at 103-104 (1958)) "we are oath-bound to defend the Constitution.....The Judiciary has the duty of implementing the constitutional safeguards that protect individual right of citizenship, the safeguards of the Constitution should be examined with special diligence..... When it appears that an Act of Congress conflicts with one of the provisions, we have no choice but to enforce the paramount comments of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them.... The ordeal of judgment cannot be shirked".

The legal mercim "Salu Populi Supreme Lex" comprehends that regard for public welfare is the highest law. That this is the predominant constitutional purpose has been recognised by the Full Bench which bore in mind that the ultimate sovereignity in a democracy vests in the people.

In fact, it is lack of legislative thinking and Executive apathy coupled with exploitation of the common man by the criminal-political nexus that impelled the judiciary into activism. The innovative strategy of public interest litigation and invocation of epistolary jurisdiction gave a fillip to this process. Protection of the weaker sections like inept destitutes, exploited workers and consumers, prisoners and mental patients and women and child labour was taken up by the judiciary with a missionary zeal. The court showed that the Constitution is meant not only for the affluent and the influential, but also "for the butcher, the baker and the candlestick maker."

The notion that the judiciary, because it is not elected, is not the voice of the people is a misconception. The Constitution is the fundamental law of the land which establishes the judiciary and empowers it to eliminate acts of Legislatives and actions of the Executive as unconstitutional if these infringe the guaranteed rights of citizens. The courts are the sentinel on the qui vive as Chief Justice Patanjali Sastri declared in V.G. Row (1952) and they do not tilt at non-existing windmills of Executive authority in a crusaders or arotic spirit, but are plainly discharging a function cast on them by the Constitution.

It is, of course, true that Alexis de Tocqueville said, "A revolt of the judiciary is more dangerous to Government than any other, even a military revolt. Now and then it uses the military to supress disorder, but it defends itself everyday by means of the Courts. If the orders and judgments of courts are judicial revolt against the Government and in the interests of the people, so be it. Dangerous it is, as de Tocqueville said, to Government But the point is that justice is being meted out to the common man and the laws are being construed as judicial swords against wrong doers, who hitherto were kept as a zone of immunity. There volt is not extra-constitutional but wholly constitutional and legal. The irony is that while "People representatives" are callously indifferent, and cavalier in response to public woes, the robed fraternity believed to be ivory tower inhabitant truly act pro bono publico to the chargien of the former.

Of course, the judiciary has to be circumspect and self-disciplined and is not expected to govern the country or enact laws, but in so far as it compels or impels the Legislature and the Executive to discharge their constitutional obligations in the present case, judicial activisms is unexceptionable and praiseworthy. No society needing a justice system can ask for more a judiciary not made to measure, but one that tenaciously, purposefully and even fiercely upholds and implements the Constitution and the laws. To qualify as a New Dimension of Justice, the Bundhu decision is not a mere ad hoc decision, a railway ticket valid only for a single journey; it adopted the route of purposive construction of the existing law on the subject and of the Constitution as a living and vibrant orgasm capable of catering to current societal needs. It is worth recalling - it appears it was not brought to the notice of, the Kerala High Court Bench - what three decades ago a five Judges Bench of the Calcutta High Court declared in the landmark decision on gherao, another venal and overzealous weapon employed by the organised workers. The Calcutta Court, boldly declared that gherao invariably involves the commission of criminal offences resulting in wrongful confinement of the encircled persons and violation of the laws of the land. Interpreting S. 17 and 18 of the Trade Unions Act (1926), the Bench said 'Ss. 17 & 18 of the Indian Trade Unions Act grant certain exemptions to members of trade union, but there is no exemption against either an agreement to commit an offence of intimedation, molestation or violence where they amount to an offence. Members of a trade union may resort to peaceful strike, that is to say, cessation of work with the common object of enforcing their claims. A concerted movement by workmen by garnering together either outside the industrial establishment or inside within the working hours is permissible, when it is peaceful and does not violate the provision of law. But, when such a gathering is unlawful or commits an offence, ihcn the exemption is lost. Thus, where it results in unlawful confinement of persons, criminal trespass or where it becomes violent and indulges in criminal force or criminal assault or mischief to person or property or molestation or intimidation the exemption can no longer be claimed." (Jay Engineering Works Ltd. & Ors. v. State of West Bengal and Ors. AIR 1968 Cal. 407 (Spl. Bench))

It is heartening indeed that the Kerala High Court did not allow timorousness to be generated in its mind leading to an attitude of undue deference to the claim of politicians who far too often indulge in the talismanic invocation of the 'mantra' of "People's interests". The hypocracy and humbug of the political charlators and trade union backaners have been rightly exposal by the Court.

No Flattery, No Flak

(A Law-learner's lens-look at Two Recent Judgments of the Kerala High Court)

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

I should, at the very outset, state that this article is not meant to be an exercise in flattery of a Judge and his judgment; nor is it intended to be a flak on another Judge or his judgment. It is, essentially, an attempt at an incisive look at two recent judgments of the Kerala High Court by an innocuous learner of law. These are the decisions in Principal, S.N. College, v. Vice Chancellor (1996 (1) KLJ 598) by Justice K.S. RadhakrishnanandChandramohanan v. S. I. of Police (1996 (1) KLT 776) by Justice P. V. Narayanan Nambiar.

Justice Radhakrishnan's bold views send a whiff of fresh air in an area suffocated and surcharged with an age-old philosophy of judicial non-intervention. In Principal, S.N College v. V Chancellor (1996 (1) KLJ 598) Justice K.S. Radhakrishnan, who, during his short tenure in the Bench, has displayed an equanimity of temperament and a balanced approach - qualities that are the attributes of a good judge - has given an expensive connotation and extensive content to Art.21 of the Constitution of India. Though right to education is not stated expressly as a fundamental right in the Constitution, the learned Judge observed, it is implicit and flows from the right to life guaranteed in Art.21 of Constitution of India. Right to education has been treated as of fundamental importance and it has fundamental significance to the life of individuals and the society at large. Arts.41, 45 and 46 of the Constitution of India show the importance attached to it by the founding fathers of the Constitution. Therefore, the learned Judge emphasised the right to get education in schools and colleges uninterrupted by politicians or external influence, or forces is also a right which flows from Art.21, the right to life and personal liberty. Right to life is a compendious right to all other rights which the Court must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. According to the Judge, and rightly too, the college or the school is the temple for academic excellence and not for imposing political ideology on others. The Judge, who relied on the decisions of the Supreme Court in Unnikrishnan (AIR 1993 SC 2178) and Mohini Jain (AIR 1992 SC 1858) and considered the question of freeing academic campuses from political pollution, rightly upheld the discretion and freedom of action of the Principal and the teachers and quashed the impugned orders issued by the Syndicate and the Vice-Chancellor and directed the police to give adequate police protection to the former for freely and peacefully running the institution. It is refreshing to see, and realistic for the Judge to act on the lines well-laid by the Justice Varma and Justice Kuldip Singh Benches of the Supreme Court of India.

One of the distressing symptoms of the current political situation is the increasing frequency with which every Tom, Dick and Harry, who poses as the self-appointed guardian of the under-privileged, is beginning to assail not only the efficacy, but also the bonafides of our judicial system. The respect and regard which a country and its people have for their judiciary and judicial system is always the touch-stone of the genuineness of their democracy.

The disappearance of zones of immunity to law is at the core of the expansion of law; and though we can treat this or that fact or figure as an indicator, at bottom, quantitative measurement does not easily capture what has occurred. The shrinking zone of authority is remarkably similar to the shrinking zone of immunity to law. Law and social policy can guarantee or try to guarantee basic decencies of life.

Justice Radhakrishnan has shown sophistication about abuses of power by organised politicians and politicised sections of society and the threat to academic freedom posed by them. The sensitive treatment to the subject given by Justice Radhakrishnan provides a yardstick to measure the approach and outlook of the Judge in our era of anesthetizing formulaic Constitution. Such a deep inquiry into the social conditions, naturally offered a way to apprehend and comprehend the dangers lurking behind the entry of politicians and politics into academic campuses. The Judge has not created a shadowy concept of academic freedom, but with a deft sleight of hand enunciated a concept with real substance and form, and called the bluff of politics masquerading as a constitutional right. Perhaps, the Judge's judicial philosophy is not truly value-neutral, but the Judge's view enunciated in the judgment under comment is a liberal view of the constitution as a dynamic document evolving in changing times. Justice Radhakrishnan has found the path for conceptualising academic freedom. May the learned Judge carry on his crusade with success:

I am sorry to say that, in sharp contrast to this, Justice Narayanan Nambiar's decision in Chandramohanan v. S. I. of Police and another reported in 1996 (1) KLT 766 leaves much to be desired, and falls short of one's expectations. In dealing with an offence charged under S.3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Justice Narayanan Nambiar adopted a highly hypertechnical view of the law and virtually acquitted the accused. In that case, the modesty of a tribal girl, whose parents belonged to Malai-Aryan Tribal community, but converted into Christianity, was outraged by the petitioner Chandramohanan and a case was registered by the Pattambi Police and after investigation, a charge-sheet was filed before the Sessions Court, Palakkad. The contention of the accused, who approached the High Court for quashing the proceedings in the Sessions Court where he stood charged with commission of offences under section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and under S.509 of the IPC, was that the victim was to be treated as a Christian by birth as she was born after her parents, who were Mala-Aryans, converted into Christianity. It was further contended that therefore the Act does not apply to her and that hence no offence was committed under the Act. Without batting an eyelid, the Court accepted this hypertechnical argument put forward by the counsel for the accused and quashed the proceedings in exercise of its inherent criminal jurisdiction. Not in consonance with precedents, including those laid down by himself, Justice Nambiar exercised inherent jurisdiction of Court under S.482 of the Crl. PC, which is to be applied rarely and only when the High Court is satisfied that there is gross abuse of the processes of court. Justice Nambiar adopted a strict constructionist approach while interpreting the SC and ST (POA) Act and placed reliance of the decision of the Kerala High Court in Chinnamma (1990 (1) KLT 62) delivered in a different context altogether and for a different purpose. The observations and conclusions in Chinnamma (in the above case) with respect are totally different and distinguishable from the present case. It was an unacceptable interpretation employed by the Judge as a device to express his attitude about the offence. Neither rhetorical nor sub-silentio summation of experience or expertise will be compatible with the premises of the logic adopted by Justice Nambiar. With respect, it is highly conservative for a Judge to adopt such a strict constructionist approach to a benevolent statute meant for ameliorating the conditions of the oppressed and the depressed classes and to hold firmly to stare decisis and other principles that tend to favour the status quo and those established interests that benefit from the status quo.

At that time when hum an rights activists are adopting an agenda far beyond a narrow focus to combat even State-sponsored racial oppression, torture and massacre worldwide campaign for civil liberties and liberation of the oppressed and the depressed classes, it is only meet and proper for people to expect the judiciary to stir out of the stupor of Victorian cozy comfort and gavanise into judicial activism.

Advocates of victims of oppression are developing new and effective protection strategies and add a unique piece to the incomplete puzzle of world politics. An exclusive legal elite is emerging in the international horizon to function as a transactional public interest group, which will contribute to a more democratic world order and universal human rights.

Let me conclude with the hope that the higher judiciary in the country will rise up to expectations and respond positively and purposefully to the zeitgeist of the times.

Janus-Faced Judiciary

(By Kauser Edappagoth, Advocate, Kannur)

The fugitive business tycoon Rajan Pillai's sad demise in judicial custody and the grant of anticipatory bail to Tandoor murder case fame Sushil Sharma have once again put the judiciary in the dock. Not quite long ago we witnessed the serious corruption charges against Justice Ramaswami. Recently the Chief Justice of Bombay High Court, Justice M.M. Bhattacharji had to resign his post on account of the allegation of having received a royalty of 80,000 Dollars for his controversial book tided "Muslim Law and the Constitution" from Robok Publications of London. Those corruption charges against judges, who are indispensable servants of society, resulted in precipitant diminution of public faith in the judiciary, which is the soul of Indian democratic set-up. The public disenchantment with judiciary has been further aggravated and the system of administration of justice in our country has been brought to ridicule by the recent events concerning Rajan Pillai and Sushil Sharma.

On the one hand, Sushil Sharma was granted anticipatory bail ignoring all the legal and factual formalities to be complied with before granting such bail despite the prima facie proof of his active involvement in the brutal murder of Naina Salmi and on the other hand, Rajan Pillai, who was arrested only for an enquiry for extradition, was put to death on account of the denial of the primary medical treatment to him. Though the facts of the cases concerning Sharma and Pillai are totally dissimilar, there is an amount of similarity in the manner in which the cases were dealt with by the courts of the land.

It will not be unfair here to comment that the order of the Principal Sessions Judge granting anticipatory bail to Sushil Sharma was illegal, without jurisdiction and against the principle of natural justice as the Madras High Court itself has observed while cancelling the anticipatory bail. The power under S.438 of the Criminal Procedure Code, which deals with the granting of the anticipatory bail, has to be exercised by the court sparingly and only in exceptional circumstances is a settled legal principle. The intention of the law-makers in introducing S.438 is to relieve a person from unnecessary apprehension or disgrace of being detained in judicial custody in cases where he may have been implicated falsely. Various notable judicial pronouncements on the subject prescribe certain tests to be applied by the court while considering the application for anticipatory bail. Nature and seriousness of the prosecution case, the gravity of the punishment which the convict will entail, the character and behaviour and standard of the accused, the possibility of the accused misusing the liberty if released by hampering the effective investigation of the case, etc. are the most important factors and circumstances to be kept in mind by the court while granting anticipatory bail. Taking into consideration the facts and circumstances of the Naina Sahini murder case, can the Hon. Principal Sessions Judge of Madras be said to have taken into account these factors and circumstances for a moment during his hasty decision to grant anticipatory bail to a gruesome murderer of the country? The S.438 of the Criminal Procedure Code requires the court to make an order consistently to indicate the reason as to why the court is inclined to make an order of bail in anticipation of the arrest of such a person. The reason given by the Principal Sessions Judge was it is well within the law and under the discretion of the Judge hearing the application.  It seems that the Hon’ble Judge failed to understand the well-settled legal principle that the judicial discretion should be exercised judiciously. While exercising the so called discretion hastily instead of judiciously the Hon'ble Judge has conveniently overlooked the fictitious local address given only for invoking the jurisdiction of the court in which he was presiding over and various rulings of the different High Courts on the question of territorial jurisdiction for the granting of anticipatory bail. In a land-mark judgment on the point Patna High Court (AIR 1986 Pat. 194 (205)) ruled that "Section 438 does not permit the granting of anticipatory bail by any High Court or Court of Session within the country where the accused may choose to apprehend arrest. Such a power vests only with courts of session or the High Court having jurisdiction over the local of commission of offence of which person is accused. The question of residence of the accused is irrelevant in such cases". Further, the Judge acted in a very casual manner as if he had not come across the main stream press reports regarding the murder of Naina Sahini, the involvement of Sharma into it, the announcement of a reward of Rupees One lakh to his head by the Delhi Police, etc. The gravity of the injustice and illegality committed by the Principal Sessions Judge is evident from the conduct of the Division Bench of Madras High Court in taking suo motu action in suspending the anticipatory bail based on a telegram message and from the strictures made in the order.

Personal liberty is precious and the same having been guaranteed as a fundamental right in the constitution the courts have to zealously guard it. Raj an Pillai's pathetic death like a street dog for want of proper medical treatment is a typical example of the failure of our judicial system to safeguard the 'right to life' of a citizen. The plea of Raj an Pillai that he be examined by a doctor was summarily rejected by the Magistrate of the specially Designated Extradition court in Delhi holding that there is nothing on record to suggest that Pillai ever underwent any indoor treatment or surgery for the disease concerned any time after 1992. But the autopsy conducted in his body revealed that he was suffering from acute cirrhosis and his detail was caused by complications in the filling up of blood in the veins. When Rajan Pillai was produced before the magistrate immediately after the arrest, he told the court that he was not well and was suffering from 'internal haemorrhage', which is a life-threatening condition. An application was also filed by Pillai's counsel seeking his medical examination. To support the contention he had produced before the court a two month old prescription given by 'Escorts Institute', diagnosing his ailment as cirrhosis. The Hon'ble Magistrate should have at least asked the doctors of the Thihar Jail to examine Rajan Pillai to find out the bona fides of his petition before rejecting the same. It is ironical to note that while ailing Rajan Pillai who was arrested only for an enquiry for extradition was denied medical treatment and was offered only 'B' class cell with no fans, water or pillows, international criminals like Charles Shobraj were provided VIP facilities in the Jail.

The tale of Rajan Pillai and Sushil Sharma has undoubtedly brought disgrace and shame to the entire judicial service of India. Those incidents would remain as a black mark on the Indian Judicial-History.

Imprisonment in Default of Payment of Fine and the Abkari Act

(By Yesudasan Varghese, Advocate, Trivandrum)

Recently in a Criminal Revision, the Petitioner/Accused has been sentenced under S.58 of the Kerala Abkari Act to pay a fine of Rs.3,000/- .and in default to suffer simple imprisonment for six months, by the Hon'ble High Court of Kerala in Rajeevan v. Excise Inspector (1995 (1) KLT 38).

The default clause in the above sentence seems to be violative of S.65 I.P.C. which stipulates that the term of imprisonment in default of payment of one shall not exceed one fourth of the maximum fixed for the offence and the maximum under S.58 of the said Act is six months' imprisonment. So it goes without saying "that the default term of imprisonment shall not exceed one and a half month in the above case.

May. I humbly propose that the Court has no jurisdiction to impose a sentence of imprisonment in default of payment of fine in a case where the offence under tire Abkari Act is punishable with imprisonment as well as fine for the following reasons:

The Abkari Act does not contain any enabling provision like S.64 of I.P.C. which empowers the Court to direct imprisonment in default of payment of fine. S.5 IPC provides that nothing in the Code shall affect the provisions of any special or local law. The Kerala Abkari Act being a local law has, vide its S.68 borrowed the provisions of Ss.67, 68 and 69 only from Chapter III of the IPC for their application in the local law. S.67 IPC deals with provisions for imprisonment for non-payment of fine where the offence is punishable with fine only and the following Ss.68 and 69 constitutes mere provisos to S.67 whereas S.58 of the Abkari Act provides for punishment by way of fine as well as imprisonment.

Had the intention of the Legislature been to impose imprisonment in default of payment of fine in cases of offences under the Abkari Act punishable with imprisonment as well as fine also, it would have specifically adopted the provisions of S.64 IPC also to apply in the local law. So it is so clear that, for the purposes of the Kerala Abkari Act, the Legislature had only picked and chosen Ss.67, 68 and 69 of the IPC leaving out S.64 of tine Code.

It is also noteworthy in this context that once the power under S.64 IPC has been invoked for imposing imprisonment in default of payment of fine, then the restriction under S.65 of the Code must follow.

In the above case, there was a concurrent finding of the guilt of the Accused under the same section of the Act, by the Courts below in that he was sentenced to undergo rigorous imprisonment for six months in default of payment of fine. But S.67 IPC requires that imprisonment in default of payment of fine shall be simple. So,4lie imposition of R.I. in default of payment of fine is per se illegal which factor went unnoticed by all the Hon'ble Courts.