Bar Council Election - Of Members of the Bar or Bar Council

(By Srinivasan Nair, Advocate, Alappuzha)

I felt overjoyed to exercise my franchise, as an advocate, for the first time in my life-for the solemn purpose of electing the members to the Bar Council of Kerala, by utilising the opportunity I was entitled to, after my retirement from Government Service. The direct approaches by many of my respectable friends in the profession during the process of canvassing and the indirect solicitations convey to me from certain other quarters, made me to have some sort of deliberations in terms of professional competence, integrity, sincerity of purpose and friendship, in grading my preferences, as required by the rules governing such an election. A chip of the old block who took sannad from a Division Bench of the High Court, consisting of Chief Justice K. Sankaran and Justice Smt. Anna Chandy, way back in 1959,1 happily conceived of a qualified, competent, respectable, august substituted forum with integrity, discharging the duties, once possessed and performed by High Court Judges in the enrolment of Advocates. The additional fact that it is the Bar Council that is legally constituted as the guardian angel in ensuring the. quality of professional standards of lawyers and enforcing discipline among them, by appropriately dealing with their misconduct, was further encouraging. A Bar Council with competent, respected and experienced members with the status reckoned by law is to be the dream and pride of every lawyer by profession.

The visits made by a few of my candidate-friends, also in the morning of 9-4-97, the date of election at Alappuzha, served as an instantaneous impetus in performing my duty at the earliest. After their exit, I went to the Bar Association and requested one officer in charge of election to verify and ensure my identity as a voter. He then referred to the old list and a new one and told me that my name was not seen there. I was truly disappointed. I felt my wishful thinking in fructuous. I cooly walked out. I wondered how those candidates who are or were, in one way or other, connected with the governance of the Bar Council and the local Bar Association President and the Secretary met me on a few occasions, if I were not actually eligible to cast my vote this time.

For a few hours I remained in the vicinity, closeted with a lawyer friend, in his residence. Meanwhile, I could ascertain the tenacity with which a senior Advocate of another station was accused by certain young lawyers, questioning his competence in doubting the genuineness of certain procedures in the process of election.

Now, it is 6.05 p.m. on 11 -4-97, the last date fixed for election. By now the electoral process is all over. But the reports that are afloat, in respect of the election, in certain centres make one believe in the resurrection of the dead and more malpractices resorted to, though personal voting is made mandatory as per rules. Now, I can only console by recollecting the words of a friend, "if you were dead your soul would have definitely rested in peace knowing that "Srinivasan Nair" exercised his franchise." Since I am not dead, I could still be content with my compulsory ouster from voting, either by the oversight of the Bar Council or my laches, that I was spared from any involvement in this dirty game.

The result of the election is yet to be seen. No one is certain as to what is in store for us in the meanwhile. Let what I heard become untrue, to maintain the cherished concept of that eminent and powerful forum of the Bar Council of Kerala.

Before parting, I would suggest the conscientious updating of the voters list and the holding of election on the same day, throughout Kerala under strict supervision as safeguards to rule out serious malpractices in this regard. Present attempt at justification, basing on a comparative reduction in malpractice, following the step of political parties, can then be curtailed to a considerable extent.

Espee on March of Law

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

1. The central concepts of modern legal culture are choice, consent, freedom and individual rights. In every area of social life, institutional behaviour has been reconstituted, gradually or rapidly, to reflect the new culture, the new version of choice, liberty, social justice and individualism. Law is the vehicle through which modern notions of choice are translated into living social arrangement. The issue, then, is not one of "more law or less Law" but rather what kind of law and what kind of arrangements and elements of ritual and magic and ceremony do survive in modern law, there is an occasional glint of symbolism and enchantment. Yet these elements do not appear to be strong-spirited enough to capture and sustain the underlying power of modern authority. Nothing has been more surprising and dramatic than that the explosion of constitutional law in India in the last three, to four decades has come to recognise the reality that there is nothing undemocratic about an institution like our Supreme Court that declares, sustains, protects and supports these rights. It is in this background that I wish to provide a bird's eye view of the performance of the Apex Court in the year that went by.

1 A. We have just rung out the old year 1995 and rung in the new 1996. The year that went by presented us with a number of important decisions on a variety of cases by the Apex Court of the country. In this bird's eye-view, this writer does not venture into a prediction of the future course of events of legal significance, but only wishes to express a common view of recent controversies of legal import and critically examine the Indian Supreme Court's handling of the cases and controversies, which demonstrate the range and variety of attitudes that influenced its thinking.

2. Under constitutional law, particularly relating to Article 15 of the Constitution of India, the Bench comprising Justices K. Ramaswamy & N. Venkatachala laid down the procedure for issuance of social status certificates, their scrutiny and their approval, in Director of Tribal Welfare, Govt. of Andhra Pradesh v. Laveti Giri & others reported in AIR 1995 SC 1506. The court further held that the burden of proof as to social status is always on the person approaching the Court seeking constitutional socio-economic advantage and that it is not part of the duty of the State to disprove or otherwise.

3. An epoch-making decision reported in 1995 (Dr. M. Ismail Faruqui v. Union of India & others - AIR 1995 SC 605), though delivered on 24.10.94, is the Ayodhya Case by a five-Judges bench - a land mark decision of the Venkatachaliah court. The court held that the pith and substance of the acquisition of certain areas in Ayodhya Act is acquisition of property and not public order and the Act squarely falls within the ambit of Entry 42, List 3 of Sch.7 of the Constitution and as U.P. was under President's Rule, legislative competence could not be questioned. Delineating the contents and contours of secularism, the Bench held that as adopted in the Constitution the concept is also a facet of right to equality. After ascertaining the area required, the court said, the remaining area should be released to the owner. More importantly, the majority headed by the Chief Justice through Justice J.S. Verma held that the theory that property once consecrated Mosque remains always as mosque is not the Muslim Law in India and that title to mosque can be lost by adverse possession and that mosque is not an essential! part of the practice of Islam religion and Namaz can be offered anywhere and in the open.

4. In Kumari Madhuri Patil & Another v. Addl. Commissioner, Tribal Development and others (AIR 1995 SC 94), the petitioner claimed admission in a Maharashtra Educational institution on the basis of false certificate as a member of the Scheduled Tribe called Mahadeo Koli. The Court found that her father's school records during pre-independence period, showed the caste as Hindu Koli. Several seconds of pre-independence period according to the court, carried greater probative evidentiary value and the candidate cannot get benefit of being a member of the Scheduled Tribe in question. The documents produced to show caste which were relied upon in the face of the school record cannot be relied upon. This is especially so, when the committee constituted specially for fact-finding on the question has given its views. The court further held that the doctrine of promissory estoppel cannot be availed of by the candidate and it enunciated necessary guidelines for the issuance of social status certificate, its scrutiny and approval.

5. That Art.21 of the Constitution cannot be indiscriminately invoked for profit has been explicitly stated by the Supreme Court. In M G. Sivani v. State of Karnataka (AIR 1995 SC 1770) the Supreme Court, while dealing with appeals against the judgments of the Karnataka and the Madras High Courts regarding the regulation and restriction of video games, held that these were not violative of the right to life guaranteed under Art.21 of the Constitution of India. Interpreting Ss.31 & 39 of the Mysore Police Act, 1963 and Secs.34, 35 & 39 of the Madras City Police Act, 1888 and discountenancing the challenge against the validity of licensing of video games, Justice K. Ramaswamy speaking for himself and Justice B.L. Hansaria held that the prohibition in the licence, of admitting school or college-going children during school or college hours is in the public interest of education of students and is neither unreasonable nor capricious and it is not violative of Art.21 of the Constitution.

6. The same Judge, however, sitting with Justice N. Venkatachala in LIC of India and another v. C.E.R.C. and others reported in AIR 1995 SC 1811, held that confining Term Policies by LIC only to the salaried class from Government, semi-Govt. or reputed commercial firms is offensive/of the egalitarian ethos informing Art.14 of the Constitution of India. The classification so confining, the court held, has the insidious and irrevocable effect of excluding lives in vast rural and urban areas engaged in unorganised or self-employed sectors to have life assurance, offending Art.14 of the Constitution and socio-economic justice. The doctrine of classification is only a subsidiary rule evolved by the court to give practical content to the doctrine of equality; overemphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Art. 14 of the Constitution, the Bench added. Holding that writ petition questioning the validity of the terms and conditions of the Term Policy of the LIC is maintainable, the court said that the action of the respondents bears public character with an imprint of public interest element in their offers involving the public to enter into a contract of life insurance. It is not a pure and simple private law dispute without any insignia of public element. The court, however, consolingly permitted the LIC to revise the premium to make the policy viable and easily available to the general public in the light of the law declared by the court in the judgment. This is one of the most well-considered judgments touching the law of contract rendered in recent times by the Indian Supreme Court.

7. In regard to educational institutions, and the fundamental constitutional rights to run the same, the Supreme Court upheld the right of a company to set up a technical institute only for the children of its employees, where admissions are strictly on merit basis and no fees are charged. The Court observed that the purpose of starting and running the institute was not inconsistent with object sought to be achieved, by the scheme enunciated in Unnikrishnan's case (19S3 AIR SCW 863) and the regulations framed by the All India Council for Technical Education (A Polytechnic by Name Larsen & Toubro Institute of Technology and another v. All India Council for Technical Education and others - AIR 1995 SC 1585).

8. In G. Rabinathan v. State of Karnataka & Others (AIR 1995 Supreme Court, 1474), Justices K. Rarnaswamy and B.L. Hansaria opined that the Govt. is the appropriate authority to decide whether seniority is to be computed from the date of appointment in Defence Services and whether seniority rendered in IMCG would amount to service in the, Defence Services. That was a case where the defence personnel concerned were transferred to the civil service of the Union or State Government and the question arose whether continuance of their service is deemed under Rule 6-A of Karnataka Government Servants (Seniority) Rules, 1957. In the said case, the Supreme Court, however, held that the Government Is the competent authority to take decisions in service matters.

9. In A. K. Kaul and another v. Union of India and another reported in AIR 1995 SC 1403 Justices S.C. Agrawal and Faizah Uddin drew distinction between judicial review and justiciability and added that the power of judicial review is implicit in a written Constitution and unless expressly excluded by a constitutional provision, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field failing within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process, in that ca.se, the Court held that the decision as to dispensing with an enquiry prior to dismissal or removal from service of a Government servant under Art.311 (2), Second proviso, clause (c), the satisfaction reached by the President or the Governor as the case may be, was justiciable within the limits indicated in the decision reported in AIR 1994 SC 1918 (S. R. Bommai). The Court further held that the absence of the requirement to record reasons in clause 3 is not indicative of immunity from judicial review.

10. In the same case the Court upheld the privilege claimed by the Government as regards Cabinet papers brought into existence for the purpose of preparing submissions to the Cabinet, notes and minutes made by the respective officers, information expressed and the gist of the official decisions as secrecy was of the essence of the Intelligence Bureau. It endorsed the view taken by the Tribunal which looked into the records for determining whether the satisfaction of the President in regard to the dismissal of the officers was vitiated, but did not permit disclosure to the other party.

11. In UP State Sugar Corporation Ltd. v. UPPS Corporation Karmachari Association and others (AIR 1995 SC 1484) Justices S.C. Agrawal and Mrs. Sujata V. Manohar held that the remarks made by the High Court about the officers for non-implementation of a particular policy were not justified. It was observed by Justice Agrawal speaking for the Bench that it would not be fair to place blame on the civil servants without fully examining the reasons for failure to implement a particular policy. The court also set aside the direction of the High Court to file complaint against the officers under Criminal Law for filing Counter Affidavit containing slight errors, observing that does not lead to the inference that a false plea was manufactured by the Corporation on whose behalf the Affidavit was filed.

12. In relation to the Representation of the Peoples Act, 1950 and the Constitution of India, Arts.324, 14, 5 and 11 and the Citizenship Act, 1995, S.9, the Bench comprising Justices A.M. Ahmadi, N.P. Singh and Mrs. Sujatha v. Manohar held that determination of citizenship even for the limited purpose of some other law has to be done by the authorities in the light of the constitutional provisions and the Citizenship Act. The court frowned upon the deletion of the names of certain persons from the electoral rolls on the ground of suspicion about citizenship without granting any opportunity of hearing, saying that the hearing would not be meaningful unless the basis for the suspicion is disclosed (Lal Babu Hussain & others v. Electoral Registration Officer and others, AIR 1995 SC 1189).

13. In Secretary, Ministry of Information and Broadcasting, Govt. of India &others v. Cricket Association of Bengal and others (AIR 1995 SC 1236) the court blazed new trails. Three eminent Judges who constituted the Bench P.B. Sawant, S. Mohan and B.P. Jeevan Reddy opined that freedom of speech and expression guaranteed under Art.19(1)(a) & (2) of the Constitution includes the right to acquire and disseminate information, and right to disseminate includes the right to communicate through any media, print, electronic or audio-visual. No restriction can be placed on the right to freedom of speech and expression on a ground other than those specified in. Art. 19(2). The court further observed that broadcasting and telecasting is a medium of speech and expression, and monopolisation thereof is not permitted under law. In the telecast of sports, free speech element is present and the degree of free speech element depends upon the character of the telecaster. The court, however, added that the scarcity of frequency creates in-built restriction on the right to telecast and the greater impact on TV on society cannot be clear base for additional restriction over and above those permissible under Art.19(2). The Court observed that the frequency right must be protected by establishing centralised agency representative of all sections of society free from control of both the Government and the influential sections of the society. The court directed the Central Government to take immediate steps for establishment of independent autonomous public authority. The court rightly emphasised that the freedom of speech under Art.19(1)(a) of the Constitution is basic and available from democratic polity. The grounds for restriction specified under Art.19(2), the court added, are conceived in national interest and interest of security. While public broadcasting is implicit under Art.19(1)(a), private broadcasting is not. Right to receive and impart information does not include the right to impart information by use of air waves, which is public property.

14. In Indian Council of Legal Aid and Advice v. Bar Council of India (AIR 1995 SC 691), the Division Bench headed by Chief Justice Ahmadi struck down the Bar Council of India Rules (Cht.3, R.9) debarring persons who have completed 45 years of age as bad being beyond the rule-making power of the Bar Council of India and ultra virers the Advocates Act, 1961.

15. The court in Narendra Kumar v. State of Haryana (AIR 1995 SC 519) deprecated the demotion by transfer of an employee on the ground that his arm was amputated owing to cancer and consequently he was unable to do his old job. Holding that it is violative of right to life under Art.21, which includes right to livelihood, the court ordered protection of his pay and that should be accommodated in a suitable post.

16. Administrative law structures have public authorities work, and in that part known well to lawyers, provide a system of review and redress. What underpins. this law, it might be said, is not some theory about society, but simply the application of the principle of legality; the question, in any case, is simply whether the administrative action challenged is within the scope of the empowering law. There are also cases or groups of cases which reveal more clearly than usual that the choices which Judges must make in the application of Administrative Law have led them to take a very different view from Government about the allocation of resources'(See J. A. G. Griffith, the Politics of the Judiciary, Third Edn.1985). The principles of legality supplies only the lawyers' over-reaching theory for the principles of judicial review; it does not tell us anything about how the principles have to be applied. The objectives of the public administration reformers of the 1970s were to make the administration more efficient, more democratic and more equitable.

17. Another decision of import in Administrative Law was rendered by the Apex Court in L. Chandrakant v. Union of India (AIR 1995 SC 1151), where the Court felt that its judgment in Sampath Kumar's case (AIR 1987 SC 386) including the question whether the Tribunal can at all have an Administrative Member on its Bench required reconsideration by a larger Bench. The Division Bench comprising Justices Kuldip Singh, Hansaria and Majumdar was considering in this case the question of validity of S.5(6) of the Administrative Tribunals Act, 1985 and the power of the Tribunal to adjudicate upon questions pertaining to the constitutional validity or otherwise of a Rule framed under S.309.

18. In service jurisprudence, ah important decision rendered was that the Central Civil Services (C.C.A.) Rules, 1965 are not applicable to civilian employees of the Defence Services. The Court below refused to set aside removal from service of the employee who alleged that the enquiry was held under these Rules on the ground that no prejudice was caused to him and as the Rules are more specific and more beneficial than the principles of natural justice (Director General of Ordnance Services and another v. P. V. Malhotra, AIR 1995 SC 1109).

19. Consistency, perhaps, is not a judicial virtue. The Judges must be free-thinking and amenable to change of views on very strong grounds. And as Cardozo said, every judgment reflects the personality of the judge. But, the moot question is whether the decisions commented upon is right and appropriate as it has an unsettling effect on the Apex Court's earlier decisions in Sampat Kumar (AIR 1987 SC 386), Parmananda (AIR 1989 SC 1185) and Majumdar (AIR 1990 SC 2263)'where it declared that the Administrative Tribunals are substitutes for, and alternatives to, High Courts. Both the complexity of the law and the rate of change have so accelerated in the last decade that it has become virtually impossible to teach the law; this situation gets aggravated by the frequent shifting in the stance of the Supreme Court on administrative and social issues.

20. There is, of course, another way of looking at this issue. These decisions cannot be brushed aside as having leapt from common place brains of mediocre judges. Great judicial minds, of course, are not immune to errors. U. S. Chief Justice Roger Brook Taney's wretched opinion in Dred Scoff v. Sanford (1857) and Justice Joseph Storey's ill-started invention of general federal common law in Swift v. Tyson (1842) are exemplary. But profound and penetrating Justices are indispensable to sound constitutional doctrine because they possess the boldness necessary to reexamine prevailing orthodoxies. Trial and error is as pivotal to sound constitutional philosophy as it is to intellectual advance in other professions. The evolution of constitutional thought is hastened by the exceptional jurist who does not hesitate to question precedents that others blindly accept. All disciplines including law progress on the backs of the fearless and the brilliant. The apex court's influence over the country is ubiquitous and this militates in favour of justices with panoramic and powerful intellect and the need to avoid uneven handed or erratic decision-making. Intellectually gifted justices are indispensable to decisions that shine with coherence and lucidity, and that provide decipherable roadways for courts below them.

21. Under the Civil Procedure Code certain important decisions were rendered by the apex court of the country in the year that went by. In Madhya Pradesh Electricity Board Vs. Central Electric Supply Co. Ltd. and others reported in AIR 1995 SC1456, Justices B.P. Jeevan Reddy and Smt. Sujatha v. Manonar, reversing the decision of the M.P. High Court held that the application seeking compensation in execution of decree was not maintainable. In a suit for possession of properties, objections were filed to execution. The High Court of Madhya Pradesh had ordered that the plaintiff could seek compensation for properties in appropriate proceedings. The Supreme Court held that the word "Proper Proceedings" in the order of the High Court would mean separate independent proceedings and not execution proceedings of the very same decree.

22. In yet another decision, namely, Nagar Palika, Jind v. Jagat Singh (AIR 1995 SC 1377) Justices J.S. Verma, N.P. Singh and K. Venkataswami were concerned with the applicability of Sec. 6 of the Specific Relief Act, 1963 in a suit for injunction restraining the defendant from interfering with the possession of the plaintiff who never alleged that he was dispossessed by the defendant but, claiming to be the owner, had asserted that he was in possession. The Supreme Court speaking through Justice Sujatha V. Manonar held that the principles under Sec. 6, Specific Relief Act would not be attracted. In the said case, the title and possession of the plaintiff was always disputed by the defendant from the stage of written statement. The Supreme Court held that it was incompetent on the part of the appellate court to record its finding on the claim of title of the plaintiff alone and that the failure of the court to enquire or investigate is a serious error on record, disentitling the plaintiff to any relief, merely on the basis of entries in revenue records.

23. Under Order XXXII, Rule 3 of the CPC, the Court held that a minor can file suit to set aside the decree passed against the minor on the ground of gross negligence on the part of the next friend of the minor. In the said case, the court held that Sec.44 of the Evidence Act, 1872 would be attracted only if any inference of fraud or collusion could be drawn from gross negligence (Asharfi Lal v. Smt. Koli reported in AIR 1995 SC 1440).

24. In Civil Law, in Mahboob Sahab v. Syed Ismail & others (AIR 1995 SC 1205) the court held that a Muslim Gift need not be in writing and laid down the essential conditions-for a valid gift. It also held that the mother of the minor cannot act or be appointed as guardian for a minor. The court also laid down the norms for application of the doctrine of res judicata under S.11 of the C. P. C. between co-defendants and added that the doctrine has to be applied with great care and caution, the reason for that being fraud or collusion.

25. Interpreting S. 9, C.P.C. and S.102(2) of the Karnataka Municipal Corporations Act, 1977, the court held that suit against enhancement of property tax was not maintainable on the ground that it is arbitrary and unreasonable. But writ petition challenging action under the Act is maintainable (Srikant Kashinatha Jituri v. Corporation of City of Belgaum, AIR 1995 SC 288).

26. In regard to fixation of compensation under S. 23 of the Land Acquisition Act, 1894, the failure of the lower court to apply the armchair test of a prudent purchaser and a willing vendor - or the test of the realised income on crops in the fixation of compensation was held to be illegal in Nuclear Power Corpn. v. Gajraj Singh & another (AIR 1995 SC 1606). The court further held that appeals filed by parties interested, but not impleaded, cannot be dismissed on the ground of delay.

27. Avery important decision was taken by the Bench comprising Justices Kuldip Singh and R. M. Sahai holding that the Second marriage of a Hindu husband during the subsistence of the first marriage after converting himself into Islam is void in the eye of law, under Sec. 494 of the IPC. It is violative of justice, equity and good conscience. The Second marriage of a Hindu husband after his conversion to Islam would be in violation of the IPC and as such void in terms of Sec. 494. Any act which is violative of the mandatory provisions of law is per so void and the apostate husband would be guilty of offence under Sec. 494 of the IPC and all the 4 ingredients of Sec.494 are satisfied in the case. The court further observed:-

28. "A matrimonial dispute between a convert to Islam and his/her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the "Muslim Personal Law". In such cases the court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage Of a Hindu husband after embracing islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of S.494, I.P.C.

The second marriage of an apostate-husband would also be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his earlier marriage under the Act dissolved. The Second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void {Smt. Sarla Mudgal v. Union of India & others, reported in AIR 1995 SC 1531)".

29. In an epoch-making decision in Criminal Law rendered in State of Madhya Pradesh and another v. Ram Krishna Balothia and another (AIR 1995 SC 1198), Justice Sujata speaking for herself and Justice B.P. Jeevan Reddy held that the offences under Ss.18 & 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Act 33 of 1989 form a distinct class by themselves and cannot be compared with other offences. Therefore, Sec. 18 of the Act excluding application of the provisions regarding anticipatory bail under Sec. 438 of the Criminal Procedure Code is not violative of Arts.14 & 21 of the Constitution of India. The court un-mistakably made it clear that anticipatory bail was not available in the case of offence of atrocity on Scheduled Castes and Scheduled Tribes. Looking to the historical background of untouchability, there is justification for apprehension that the benefit of anticipatory bail, if made available to persons who have allegedly committed such offence, there is every likehood of their misusing of their liberty while on anticipatory bail to terrorise their victims and to prevent proper investigation, held the court. The court further observed that anticipatory bail is essentially a statutory right conferred long after the coming into force of the Constitution and hence it cannot be considered as an essential ingredient of Art.21 of the Constitution of India.

30. In Charipalli Shankarrao v. Public Prosecutor, A.P. High Court, AIR 1995 SC 777), the Court upheld the validity of a dying declaration recorded by a Head Constable in the absence of availability of Magistrate.

31. In Taxation jurisprudence, the apex court in the judgment delivered by Justices K. S. Verma and K.S. Paripoornan in Amrit Banaspati Co. Ltd. v. Union of India & others (AIR 1995 SC 1340), upheld the imposition of tax on movement of goods and stated that it does not in any way impair freedom of trade. The terminal tax on goods carried by rail or road into Delhi has to be presumed to be levied in public interest and in the case on hand the presumption was not offset by any contra material. The court added that while challenging the constitutionality of a statute, specific, clear and unambiguous allegations of violation of Constitution should be made and the burden of proof is on the challenger. S.178 of the Delhi Municipal Corporation Act, even if assumed to be contrary to Art.301 of the Constitution of India, would be saved by Art.302, held the court.

32. In Income Tax, one case came up before the Supreme Court claiming refund when the assessment order was set aside in appeal with direction to the ITO to make fresh assessment. The court refused to order refund as refund would arise only when fresh assessment is made and amount leviable as tax is ascertained (C.I. T. v. Chittoor E. S. C., AIR 1995 SC 700).

33. The court held that promissory estoppel doctrine was not attracted to a case of issuance of a notification withdrawing time-bound exemption notification. The exemption notification did not hold out any promise to the importers, the court added (Kasinka Trading and another v. Union of India & another, AIR 1995 SC 874).

34. In Corporate jurisprudence the court's dictum laid down in Hindustan Lever Employees' Union v. Hindustan Lever Ltd. (AIR 1995 SC 470) is noteworthy. That case involved amalgamation of an Indian Company with a foreign company which was approved by the majority of share-holders, debenture holders and even financial institutions; shares were properly valued and the Explanatory statement accompanying amalgamation proposal did not Sack in material particulars. On the sole ground that it envisaged 51 % equity participation by the foreign Company the scheme cannot be said to be against public interest, the court opined.

35. In Satish Cahndra v. Union of India (AIR 1995 SC 138), distinguishing its earlier decision in Sampat Kumar's case, (AIR 1987 SC 386) the Bench comprising Justices A.M. Ahmadi and B.L. Hansaria held that the Company Law Board is not a substitute for the High Court and that the provisions relating to the Board in the Companies Act, Sec. 10 (e) as amended by the Companies Amendment Act, Act 31 of 1988, cannot be assailed on the ground of legislative incompetence. The conferment of power under S.397, which is less drastic, on the Board while retaining the drastic power of winding up with the High Court, is not vitiating the provisions and the latter cannot be assailed on the ground of lack of intelligible and acceptable differentia for having two fora for two purposes. Nor can it be attacked on the ground that it does not protect minority shareholders.

36. In another decision of significant import to industry, the Apex Court in M/s. S.R.T. Ltd. v. M/s. Garware Plastics and Polyesters Ltd. and others (AIR 1995 SC 2228) stressed the need for expedition and completion within a time-frame of the procedure for revival and rehabilitation of the sick or the potentiality sick companies under the Sick Industrial Companies (Special Prevention) Act, 1986, constructing Ss.17 and 18 of the Act. Justice K. Ramaswamy speaking for himself and Justice N. Venkafachala underscored the need for hearing the Central Government and the Central Government and the Central Board of Direct Taxes when the merger of a sick company with a healthy company involves the question of granting a certificate by the Central Government, The practice of sabotaging such schemes was firmly dealt with by the Court by dismissing the petition with exemplary costs.

37. In industrial jurisprudence, the Supreme Court did contribute much in the year gone by. However, it made an important decision in which it declared that S.25-M of the I.D. Act, 1947 as amended in 1970 requiring prior permission of concerned authority before effecting lay off was constitutionally valid and not violative of Art.19(6) of the Constitution of India. Quite contrary to the apex court's consistent stand against reliance on external aids like the Statement of Objects and Reasons in interpreting a statutory provision, the Bench comprising Justices G.N. Ray and B.L. Hansaria held that the object underlying the requirements of prior permission for layoff of workmen introduced by S.25-M as indicated in the Statement of Objects and Reasons for the Amending Act of 1976 is to prevent avoidable hardship to the employees resulting from lay-off by protecting employment to those already employed and maintain higher tempo of production and productivity by preserving industrial peace and harmony. The said consideration coupled with the basis underlying the provisions of the Act, namely settlement of industrial disputes and promotion of industrial peace, gives sufficient indication of the factors which have to be borne in mind by the appropriate government or authority while exercising its power to grant or refuses permission for layoff under sub-section (2) of S.25-M. There may be various contingencies justifying an immediate action of lay-off, but then, the Legislature in its wisdom has thought it desirable in the greater public interest that decision to lay-off should not be taken by the employer on its own assessment with immediate effect, but the employer should seek approval from the concerned Authority which is reasonably expected to be alive to the problems associated with the concerned industry and other relevant factors, so that on scrutiny of the reasons pleaded for permitting lay-off, such Authority may arrive at a just and proper decision in the matter of according or refusing permission to lay-off. The court added that the employer has to face some inconvenience caused on account of this stipulation and that in the greater public interest for maintaining industrial peace and harmony and to prevent un-employment without just cause, the restriction imposed under sub-s.(2) of S.25-M cannot be held to be arbitrary, unreasonable or far in excess of the need for which such restriction as has been sought to be imposed (Papanasam Labour Union v. Madura Coats Ltd. and others -AIR 1995 SC 2200.

38. In Labour Jurisprudence, the court declared the law of far-reaching effect in Hindustan Steel Works Construction Ltd. etc. v. H.S.W.C. Ltd. Employees' Union and another (AIR 1995 SC 1163). In that case; the Construction company undertaking contract work wherever awarded appointed a number of local persons in one worksite, and on completion, wound up the establishment there. The workers cannot demand absorption in other units even if the Company reserves the right to transfer employees from one unit to another, and re-instatement cannot be ordered invoking S.25 FFF of the industrial Disputes Act, 1947, the Court observed.

39. In Birla Cement Works v. G.M., Western Railway and another (AIR 1995 S.C. 1111), the court held that the Railway Claims Tribunal is not a Civil court and that the provisions of the Limitation Act are not applicable to proceedings before it. The Court blazed new trails of industrial jurisprudence when it held the employer vicariously liable to pay damages when a workman affected by asbestosis dies after cessation of employment. The Asbestos Industries is bound by Rules regarding safety in the use of asbestos issued by the I.L.O., said the Court, which issued various directions to the industry for control of occupational health hazards and diseases to workmen. Justice K. Ramaswamy speaking for the Bench comprising Chief Justice Ahmadi, M.M. Punchi, J. and himself, observed that right to life under Art.21 of the Constitution does not connote mere animal existence or continued drudgery through life and it includes right to livelihood, better standard of life, hygienic conditions in work place and leisure and also tradition and cultural heritage. His fundamental right under Art.21 includes hygienic conditions in work place and leisure, and in enforcement and protection of the fundamental rights, remedy of compensation is available under Arts.32 & 226 of the Constitution and the State cannot claim sovereign immunity (C. E. R. C. & others v. U.O.I. & another, AIR 1995 SC 922).

40. The Supreme Court came down heavily on the Executive, invoking its Contempt jurisdiction in Dhananjay Sharma and others v. State of Haryana (AIR 1995 SC 1795). The Bench comprising Justice Dr. A.S. Anand and Faizuddin observed that any conduct which has a tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the commission of criminal contempt. The swearing of false affidavits not only has the tendency of causing obstruction in the due course of judicial proceedings, but has also the tendency to impede, destruct and interfere with the administration of illegal detenus before the Supreme Court, the police officers filed false affidavits and forcibly compelled a detenu to do so. The Court rejected the apology tendered by the Police Officials, and imposed deterrent punishment on them. It also hauled up the Secretary of the Home Department, a respondent in the petition, for not filing counter additives for contempt and reprimanded him.

41. The Supreme Court has in the year gone by asserted its authority and the supremacy of the judiciary by exercising its Contempt jurisdiction. Earlier it hauled up five senior officers of the Maharashtra Government including the Education and Law Secretaries for contempt for non-compliance with its order concerning the quota for NRI admission to Medical Colleges. Recently, it held a senior IAS Officer, Vasudevan of Karnataka Government, guilty of contempt in regard to implementation of Reservation Policy and sentenced him to one month's simple imprisonment. Actually, the officer acted at the behest of the Chief Minister and his Cabinet, who were allowed to go sot-free. This is not only inappropriate and inequitous, but potent with the dangerous consequence of politicians defying court orders with disdain. For this, there has to be a change of the present system where the Bureaucracy has to bear the brunt of Government action whether before the Courts or the Parliamentary Committees. There is no reason why the Political Executive which pulls the strings from behind leading to the punishment of the bureaucrats should be allowed to go scot-free, it must be held answerable and accountable to the Judiciary and the Legislature for its actions and inactions. The Supreme Court could profitably think of laying down guidelines in this regard 'An Active Judiciary' by Madhv Godebole - Indian Express dated 23.12.1995).

42. In a short and crisp judgment, the Apex court observed that the guidelines laid down by it earlier in Laxmikant Pandey (Al R1984) SC 489) and Laxmikant Pandey (AIR 1986 SC 272) are exhaustive and emphasised the need for strict adherence to the guidelines. Justice R.M. Sahai speaking for himself and Justice B.L. Hansaria held that the absence of explanation by the authorised officer of the effect of adoption to the biological parents of the adopted child rendered the adoption infirm (AIR 1995 SC 1982 - Suman Lai Chotalal Kamar v. Miss Asha Trilokbhai Saha etc.).

42 A. The Apex Court came down heavily on the practice of deliberate misleading of the court by clients with or without the knowledge, consent or approval of the Counsel by producing fabricated or forged documents or swearing to false affidavit in Chandra Shastri v. Amit Kumar Varma, (1995) SCC 421). In the said case forged and fabricated documents were filed in court with the oblique motive of deceiving and defrauding the court. This, the court observed, resulted in interference with the administration of justice and amounted to contempt of court. The court, in contempt proceedings taken by it suo motu, emphatically stated the need for deterrent punishment. The contemner tendered apology after forming an impression that the court was of the view that he had committed contempt. The contemner in his affidavit stated that he would lose his job and his life would be shattered if he was held quality of contempt and punished. The court felt that the apology was not the outcome of real remorse or contrition, but was tendered as a weapon of defence-and hence not acceptable. With the view that it should serve as a deterrent and an eye-opener and holding that composition of fine will not suffice, the court awarded the contemner a punishment of two weeks imprisonment. In the opinion of the Bench consisting of Justice Kuldip Singh and himself, Justice Hansaria did, indeed, rightly inject a sense of fear and respect in the minds of men who try to play truant with legal and judicial institutions.

43. In matrimonial jurisdiction, the Supreme Court invoked its jurisdiction under Art.142 of the Constitution and granted divorce in Ramesh Chander v. Smt. Savithri (AIR 1995 SC 851). In a petition for divorce filed under S.13 of the Hindu Marriage Act, it was revealed that the marriage was dead emotionally and practically and that the husband was not dutiful and conscious of his responsibilities towards either his wife or his son. The Court felt that continuance of martial alliance will be cruelty, specially when the child born out of the wedlock had grown up and was employed. Though, the husband expressed remorse and willingness to transfer his only house to the wife to recompensate the wrong done by him, the court directed dissolution of marriage invoking its power under Art.142 of the Constitution subject to such transfer.

44. In Insurance law, a Division Bench of the Court clarified that comprehensive policy of insurance will not entitle the owner to claim unlimited ''ability u/S.95(2) of the Motor Vehicles Act, 1956 (New India Assurance Co. Ltd. v. Smt. Shanti Bai, AIR 1995 SC 1113).

45. In relation to the Laws of Contract and Specific Relief, an important decision was rendered by the Court in S.V.R. Mudaliar (dead) by L.Rs and others v. Mrs. Rajabu F. Behari (dead) by LRs. and others (AIR 1995 SC 1607). Where between the vendor and the vendee of two properties, it was recorded as gentleman's understanding that the vendee would reconvey the property sold to the vendee if the purchase money is paid along with solatium and the agent of the parties drew up an agreement to this effect, it was held enforceable. The proposition that in addition to the existence of an agreement and the presence of consideration, there is also a third element in the form of intention of parties to create legal relation on which the enforceability of the contract depends cannot be accepted, the court said.

46. In a spirit of judicial activism, Justice Venkatachaiaiah gave directions for execution of renovation and construction of mental aslyms in Rakesh Chandra Narian v. State of Bihar and others reported in AIR 1995 SC 208. The court had earlier appointed a committee with regard to the management of the Ranchi Mental Hospital and the control systems which needed second look. The committee was set up for suggesting administrative set-up for certain .mental aslyums. The reports and recommendations of the committee were accepted by the court, which directed the implementation of the report in the matter of administration, control and management of the asylum.

47. In a decision of far-reaching importance, the Supreme Court chastised the Government for the lapses of lawyers representing the Government resulting in difficulty to the Court and drain on the State exchequer. In Union of India and another v. Rahul Rasgotia and others (AIR 1995 SC 2337), dealing with the I.P.S. Probation Rules and I.P.S. (Cadre) Rules, 1994 Justice J.S. Verma speaking for himself and Justice N.P. Singh and N. Venkatachala placed on record their Lordships deep distress at the manner in which the cases of the Government are generally conducted in the Supreme Court and also when the Government approaches the court to overcome the consequence of an adverse order made against it. The court expressed its views with a feeling almost of despair since its constant lament orally, and, at times, even in writing, so far evinced (sic.) no appropriate response for improvement and recalled its observation in Union of India v. Radhakrishnan (1991) 3 SCR 895 : (1991) AIR SCW 2370) and regretted that there was no improvement in the situation. The court observed "We are not sure whether such lapses of persons responsible for conduct of the cases on behalf of the Government are deliberate or inadvertent, but they are certainly culpable which need to be investigated by the concerned authorities to identify the delinquent and punish them in public interest." These observations of the Apex Court should re-open the eyes of the Government or make it re-think and review its present policy of appointment of law officers of the State purely on political and communal considerations without any regard for quality, merit, experience or equipment. Even the high offices of Advocate General and Attorney General and Solicitor General have been degraded by appointing men of few ideas and fewer scruples in such posts by the Central and the State Governments.

48. In some of the selected cases discussed herein, the court over a span of time appear to have been inconsistent, albeit a paradoxical inconsistency, in wanting the best of both worlds, the private and the public.

49. These trends of the Apex judiciaries decision-making process and pattern remind one of Justice Thurgood Marshal's observation about the U.S. Supreme Court, "Power and reason is the new currency of this Court's decision-making - Neither the law nor the facts supporting Booth and Gathers underwent any change in the last tour years. Only the personnel of this Court did. In dispatching Booth and Gathers to their graves, today's majority ominously suggest that an even more extensive upheaval of this Court's precedents may be in store. Cast aside to-day are those condemned to face society's penalty, tomorrows victims may be minorities, women or the indigent,. Inevitably, this campaign to resurrect yesterday's spirited dissent will squander the authority and the legitimacy of this Court as a protector of the powerless' (Thurgood Marshal", Michael D. Davis and Hunter R. Clerk).

50. It will be profitable to recall the words of the U.S. Supreme Court Missouri Knights of the Ku Klux Klan v. Kansas City. "When men have realised that time has upset many fighting faiths, they may come to believe, even more than they believe, the very foundations of their own conduct that the ultimate goal desired is better reached by free trade in ideas - that the best test Of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and in its government the deliberative forces should prevail over the arbitrary.....they knew..... that it is hazardous to discourage thought, hope and imagination, that fear breeds repression, that repression breeds hate, that hate menaces stable Government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy tor civil counsels is good ones" ("In our Defence - The Bill of Rights in Action", by Ellen Alderman and Carolina Kennedy, P.- 32).

51. In Areopagitica - a speech for the liberty of unlicensed printing, John Milton wrote "Truth and understanding are not such wares as to be monopolised and traded in by tickets and statutes and standards. To Milton, sponsorship was the "greatest discouragement and affront that can be offered to learning and learned men."

52. Again, in New York v. Sullivan (1964) the U.S. Supreme Court wrote of a "profound national commitment to the principle that debate, on public issues can, should, be un-inhibited, robust and wide open. This basic power of the universe cannot be fitted into the outmoded concept of narrow nationalism. For, there is no secret and there is no defence, there is no possibility of control except through the aroused understanding and insistence of the peoples of the world ("In our Defence - The Bill of Rights In Action." Ellen Alderman and Carolin Kennedy, P. 49). These hortatory principles must have informed our Supreme Court in the decision taken in the Cricket Association of India case, and, perhaps, rightly too.

53. Even a non-lawyer such as former Prime Minister of Australia, Malcom Fraser, who promoted Administrative law reforms and, indeed, saw it as the major achievements of his seven years in office, argued that the legal system has taken de facto control over spending a good deal of public money, whereas the ultimate power over spending public money must reside with those who have the ultimate responsibility for procuring it - in the hands of the elected Government (Address to Seminar - Paper presented at Seminar on Administrative law - Retrospect and Prospect. Faculty of Law, Australian National University 15 & 16 May, 1987).

"Energetic government requires a responsive Bureaucracy, capable of efficiently translating stated Government policy into achievable administrative practice and effective programmes, free of bureaucratic foot-dragging or obstruction", as the Supreme Court said in S.P. Gupta's case (AIR 1992 SC 149 at 232).

54. There has been a recent tendency in the Apex Court's members to castigate and chastise the legal profession. The lawyers have been dubbed and dismissed as robbed oddities by the mainstream of the judiciary. Let us not forget that the Bar and the Bench belong to the same class and genre and the tendency is suicidal. As James G. Leyburn, the social scientist wrote, "when selfishness in the individual or ethnocentrism in the group exceed the willingness to make concessions to one's associates, there is an inevitable tendency towards disintegration of the band." Circumstances of such caustic comments from the Bench are a chilling commentary on the judiciary's sleeply disregard for lawyers' freedom.

55. We are now passing through a time where men and women, here around the world, have lost faith in their institutions. They are questioning, re-examining. At such a time, there can be nothing more healing than for them to participate directly in the reshaping of the institutions that no longer enjoy their confidence. Participation preserves the vitality of the institutions and nurtures a healthy relationship between the individual and the society. When people, for whatever reason - oppression, laziness or complacency - take no part in their institutions, the institutions themselves decay at an accelerating pace. Hence, we have to re-hash and re-shape the legal doctrines propounded and followed in the cosy, warm sunshine of Victorian prosperity. As Lon L. Fuller said in his anatomy of The Law, "law can appear as the highest achievement of civilization liberating for creative use human resources Otherwise dedicated to destruction. In man's capacity to perceive and legislate against his own defects we can discover his chief claim to stand clearly above the animal level. A shift in mood and all this bright glitter surrounding the law can collapse into dust. Law then become man's badge of infamy, his confession of ineradicable perfidy."

56. As an eminent former Judge of the Supreme Court observed, "A judge, like Epictetus, it has been aptly put, must recognize the impropriety of being emotionally affected by what is not under one's control. The Courts, it is also pointed out, have to be much more circumspect in seeing that they do not overstep the limits of their power, because to them is assigned the function of being the guardian of the Constitution.....The Courts have, I submit, to earn reverence through the test of truth. Contempt of court is too thin and fragile a reed to afford support to the majesty of the rule of law or the dignity of the Court." (Judicial Activism - II by Justice H.R. Khanna - The Hindu dated 28.9.95).

57. U.S. Supreme Court Judge Justice Jackson's advice to his colleague is memorable. "We are final, not because we are infallible; we are infallible because we are final."

Sweeping Sympathy or Justice Based on Law ?

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

Justice Frankfurter a liberal lawyer - was a conservative judge, who became the pre-eminent advocate of the doctrine of judicial restraint believing profoundly that personal preferences can have no place in judging, because to let them in produces a rule of men, not laws. To emulate Frankfurter will not be construed as a reactionary metamorphosis or masochistic in ruling contrary to one's powerful libertarian beliefs. These prefatory observations are made in connection with a decision of a Division Bench of the Kerala High Court comprising Justices P.A. Mohammed and D. Sreedevi in Oriental Insurance Co. Ltd. v. T.P. Balakrishnan (Judgment dated 24-9-1999 in M.F.A. Nos.642 & 643 of 1996 (reported in 1998 (2) KLT 954). Giving a very narrow interpretation to S.147(2) of the Motor Vehicles Act, 1987, their Lordships dismissed the appeal of the Insurance Company holding that the breach of conditions of the policy did not immunise the insurer from liability to pay compensation to the victim of a motor accident. The reliance placed by the Bench on the Supreme Court decision in B.V. Nagaraju v. Oriental Insurance Co. Ltd. (AIR 1996 SC 2054) and its understanding of the dictum do not appear to be correct. It is not discernible as to what their Lordships mean by saying after extracting the observations of the Supreme Court, "As a matter of fact, no such contributory factor is involved in the present case. What is involved here in the present case is without the knowledge of the owner of the vehicle, the driver has carried passengers in excess of the permitted number of passengers. This is an irregularity committed by the driver and that cannot be attributed to the owner of the vehicle, was used for not allowed by the permit."

These observations and holding, with respect, fly against the concept and content of vicarious liability. It is perhaps redundant to remind their Lordships that the liability for payment of compensation is fastened on the owner of the vehicle on the doctrine of vicarious liability, which is accepted and not anathema to the Law of Torts which is the sheet-anchor of the relevant chapter of the Motor Vehicles Act. The anxiety of the court to make available compensation to the helpless and hapless victim of a motor accident is understandable and appreciable. But it is a trite truism that justice has to be rendered by the court according to law, however distasteful some of the statutory provisions or principles may be to the court. One may profitably refer to the following words of the illustrious American Supreme Court Judge Frankfurter in the opinion delivered in Barnette revising Gorbitis by rendering the solitary voice of minority as a lone and embattled dissentuer. Perhaps, this is one of the most personal paragraphs ever written by a Supreme Court Justice is an attempt to justify his position to a perplexed Bar and Bench. Said Frankfurter "As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge, who must decide, which of two claims before the Court shall prevail, that of a State to enact and enforce law within its general competence or that of an individual to refuse obedience because of the demands of his conscience is not that of the ordinary person."

To follow Frankfurter in matters like this will not make the concerned judge a fallen liberal or a born-again conservative. Perhaps, that the judge was merely an intellectual attempting to do his duty as he abstractly saw it was too subtle an idea for popular consumption. It is true that our High Court like other High Courts of this country, during the last three decades has set in motion the fright-train of liberal decision making that rumbles through thirty years of Kerala life with certain awful exceptions. But, pragmatism need not look like anti-intellectual good-old-boyism, it could be result oriented and determined to do justice regardless of technical or legal constraints. The court's feel for the average person or common man may translate into sympathy for oppressed individuals and victims of accidents. But, that need not, and, indeed, should not be the motivating or deciding factor in every decision. The established precedents and principles, which should dominate judging are not to be discarded as verbal technicalities to be manipulated in the service of common sense, where justice truly lay. Or, in other words a judge should not permit his powerful personal belief to overcome his stern professional code or to lay down lines of doctrinal demarcation.

In B.V. Nagaraju the factual matrix was totally different from that in the case under discussion. In that case, it was not alleged that the driver of the insured vehicle was responsible for the accident. It is in that context that the court observed - and, with respect, perhaps, not correctly - "By merely lifting a person or two or even three by the driver or the cleaner of the vehicle, without his knowledge, cannot be said to be such a fundamental breach that the owner should, and in all event, be denied (sic) indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract unless some factor existed which by themselves had gone to contribute to the causing of the accident."

Mind you, in the case before the Supreme Court the coming vehicle had collided head on with the insured vehicle. How could these observations in the Supreme Court decision form the rationale for the decision of the Kerala Division Bench is anybody's guess.

In Skandia Ins. Co. Ltd. (AIR 1987 SC 1184), what the Supreme Court said was that a mere breach of clause does not absolve the insurer of the liability and he has to establish that the insured himself was guilty of committing breach of promise in the contract of insurance. This also does not lend support, substance or sustenance to the dictum of the Kerala High Court.

Justice E.S. Venkataramiah's observations on behalf of himself and Justice Bhimayya in Madras Motor and General Insurance Co. Ltd. and another v. Nanjamma and others reported in AIR 1977 Karnataka 46, relied on and referred to by Justices Mohammed and Sreedevi also do not support or strengthen the view of their Lordships. What the Karnataka Division Bench said in a case arising from a motor accident resulting in the death of seven persons was that the mere fact that the car was overloaded, that it carried passengers in excess of permissible limit, does not mean that it was used for a different purpose and thereby immunise the insurer from liability. That question and proposition is totally different and distinct from that in the case under comment. This writer emphatically and candidly admits that we should not allow the monopolistic insurance companies to defeat justice by sleezy maneuverings or resort to hyper-technicalities or hair-splitting arguments. But, one should not consider the Law of Torts and the Law of Contract as mere relicts to be encased and embalmed in shroud and frozen in time, no longer laws to be applied to new situations.

A Judgment to be Reviewed

(By Advocate Thampan Thomas, Ex. M.P.)

On 11th December, 1995 a three Member Bench of the Hon'ble Supreme Court, consisting of Justice J.S. Verma, N.P. Singh and K. Venkataswami pronounced their Judgment in a batch of Election Appeal Cases filed by Dr. Ramesh Yashwant Prabhoo, Bal Thackeray, Manohar Joshi and Suryakant Yenkat Rao Mahadhik and others. The Bombay High Court in Election Petitions set aside the election of the appellants on the finding that they indulged in corrupt practices under Section 123(3) and 3(A) of the Representation of the People Act, 1951. The said sections forbids canvassing votes on the ground of religion or appeal to refrain from voting for any other candidates on the ground of religion. Section 3(A) the expression used is the promotion or attempt to promote the feeling of enmity or hatred on the ground of religion, a corrupt practice.

The allegation in these election petitions were that, in November and December 1987 during the election campaign Sri. Bal Thackkeray in the presence of the candidates said, "We have come with the ideology of Hinduism. Shiv Sena will implement this ideology. Though this country belongs to Hindus, Ram and Krishna are insulted. (They) valued the Muslim votes more than your votes, we do not want the Muslim votes. A snake like Shahabhuddin is sitting in Janatha Party, man like Nihal Ahmed is also in Janatha Party. So the residents of Vile Parle should bury this party (Janatha Party)". He also said in his meetings, "Hinduism will triumph in this election and we must become Hon'ble recipients of this victory to ward off the danger on Hinduism. You will find Hindu temples underneath if all the mosques are dug out. Anybody who stands against the Hindus should be showed or worshiped with shoes. A candidate by name Prabhoo should be led to victory in the name of religion." The dias where Bal Thackerary and candidates were sitting a banner which read, "Gourse Kahoo Hum Hindu Hai", was also hanging.

The allegation against Manohar Joshi, the present Chief Minister of Maharashtra is that in the year 1990 during his election campaign he also made appeal on the basis of religion to canvass vote. It came in evidence that he declared in his election meetings at Prabhavathi and Sivaji Park that, "First Hindutva State will be established in Maharashtra". In the case of Suryakanth Venkatarao Mahadik the allegation is on 11-12-1990, while speaking in Sarweshwar Mandir in a Hindu congregation he demanded vote in his favour on the ground of religion. The Hon'ble Supreme Court found that all allegations were proved. They held that barring Manohar Joshi all other candidates have violated the provisions 123 (3) and (3) a of the R.P. Act. The decision of the Bombay High Court except that of Mr. Joshi were upheld.

Justice J.S. Verma who wrote the judgment for and on behalf of the Bench elaborately went into the question in an irrelevant manner and decided that mentioning of Hindutva is not a violation 123(3) or 3(A) of R.P. Act, and that it will not be a corrupt practice. He opted to give definition to Hindutva in paragraph 40 of the judgment which reads, "Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism." The word 'Hindutva' is used and understood as a synonym of 'Indianisation' .i.e., development of uniform culture by obliterating the differences between all the cultures by obliterating the differences between all the cultures co-existing in the country.

Justice Verma gives his reasoning for this. "It cannot be doubted that an election speech made in conformity with the fundamental right to freedom of religion guaranteed under Articles 25 to 30 of the Constitution, cannot be treated as anti-secular to be prohibited by sub-section (3) of Section 123, unless it falls within the narrow net of the prohibition indicated earlier. It is obvious mat a speech referring to religion during election campaign with a secular stance in conformity with a fundamental right to freedom of religion can be made Section (3), if it does not contain an appeal, to vote for any candidate because of his religion or to refrain from voting for any candidate because of his religion. When it is said that politics and religion do not mix, it obviously does not mean that even such permissible political speeches are forbidden. This is the meaning and true scope of sub-section (3) of section 123 of the Act." It comes to the conclusion that, no precise meaning can be ascribed to the terms/Hindu', 'Hindutva' and 'Hinduism', and* no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term 'Hindutva' is related more to the way of life of the people in the sub-continent. It is difficult to appreciate how in the face of these decisions the term 'Hindutva or Hinduism' per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition in sub-sections (3) and/ or 3(a) of Section 123 of the R.P. Act.

The learned Judge had placed reliance on a Constitution Bench decision in 1966 in the case of Sasthri Yagnapurushadji and Others v. Muldas Bhundardas Vaishya and another. There direct question was relating to definition to Hinduism and it is said the word Hindu derived from the river Sindhu otherwise known as Indus which flows from the Punjab. Quoting Murder Williams from his book 'Hinduism', it is narrated that part of great Aryan race, which immigrated from Central Asia, through the mountain passes into India, settled fires in the districts near the river Sindu. The Persians pronounced this word 'Hindu' and named their Aryan Brethren Hindus. The Encyclopedia of Religion and Ethics has described 'Hinduism' as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire. To define 'Hinduism' Dr. Radhakrishnan's quotation of similar value also relied.

Quoting some earlier cases of the Supreme Court Justice Verma came to the conclusion that, 'Hindutva' is not synonym for Hindu religion but a synonym for Indianisation. He also placed reliance on Maulana Wahiduddin Khan, "The strategy worked out to solve the minorities problem was, although differently worded that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures co-existing in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem." (In Indian Muslims - The Need For A Positive Outlook 1994).

In fact, Maulana Wahiduddin Khan, wrote this Article in the wake of Babari Mazjid problems. The fear psycosis developed in the mind of a Muslim is quite apparent in the said statement. Moreover he is believed to be a person who attends Sangh Parivar meetings. Justice Verma is context iliseingirrelevant matters in an irrelevant manner.

The unprecedent judgment of the three Member Bench of the Supreme Court presided over by Justice Verma has invited severe criticisms from eminent jurist and public men. Many eyebrows have been raised against the judgment. The eminent jurist Palkkivala requested the Chief Justice of India to constitute a 9 or 11 Member Bench to review the decision. Noted lawyers of Bombay and Delhi have criticised the judgment as-self contradictory in character, beyond his competence, and negation of basic jurisprudence. It is wondered, why the learned Judge had gone in details to define the 'Hindutva' in a case where it is not necessary. The points for his' decision mere straight available in the case itself. To give an obiter dicta of this nature is quite unnecessary in the circumstances of the case. The question of-defining'/Hindutiva' or 'Hinduism' is not directly in question in this case. Therefore, it is apparent that Justice has violated the basic principles of jurisprudence.

In these judgments, what Justice Verma has overlooked is an important decision of the Constitutional Bench of the Supreme Court in S.R. Bommai case reported in 1994 AIR SC Page 1919. This case is directly applicable for defining secularism meant in the Preamble of the Constitution. The Bench, which gave the decision consist of Justice S. Ratnavel Pandian, A.M. Ahamdi, Kuldip Singh, J.S. Verma, P.B. Sawant, K. Ramaswamy, S.C. Agarwal, Yogeshwar Dayal and B.P. Jeevan Reddy J.J. Justice J.S. Verma, himself is a party to that decision. The Bench of this case related to the dismissal of the State Government under Article 356 in the wake of Ramajanmabhoomi problem. The eminent Judges of the Supreme Court concurred all most all the findings and the law on the subject of secularism is well laid down. Concurring with the judgment all most all the Judges have written their own views in these, cases. It was held, "The preamble and Arts.25, 26, 29, 30, 44, 51A 14, 15, 16 by implication prohibit the establishment of a theocratic state and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoyed to accord equal treatment to all religious sects and denominations. Under our Constitution whatever be the attitude of the State towards the religion, religious sects and functions, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. The State's tolerance of religion or religions does not make it either a religious or a theocratic State."- Justice Kuldip Singh and Justice Ratnavel Pandian concurred with it. Justice Sawant further held. "Under our Constitution, the encroachment of religion into secular activities is strictly prohibited. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from, the secular life. The latter falls in the exclusive domain of the affairs of the State. This is also clear- from sub-sections (3) of S.123 of the Representation of the People Act, 1951 which prohibits an appeal by a candidate on his agent by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of appeal to religious symbols. Sub-section (3A) of the same Section prohibits the promotion or attempt to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion, race, caste, community or language on a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. A breach of the provisions of the said sub-ss.(3) and (3A) are deemed to be corrupt practices within the meaning of the Said Section."

"Reading sub-sections (3) and (3A) of S.123 together, it is clear that appealing to any region or seeking votes in the name of any religion is prohibited by the two provisions. To say that what was prohibited by S.123(3) was not an appeal to religion as such but an appeal to religion of the candidate and seeking vote in the name of the said religion, is to subvert their intent and purpose of the said provisions."

"K. Ramaswamy, J.- It cannot be said that the interpretation and applicability of sub-sections (3) and (3A) of S. 123 of R.P. Act would be confirmed to only cases in which individual candidate offends religion of rival candidate in the election contest and the ratio therein cannot be extended when a political party has espoused, as part of its manifesto a religious cause. In a secular democracy, like ours, mingling of religion with politics is unconstitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics. Every political party, association of persons or individuals contesting election should abide by the constitutional ideals, the Constitution and the laws thereof."

“B.P. Jeevan Reddy, J. (By himself and on behalf of S.C. Agrawal, J.) (Pandian, J. Concurring) -If any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution would certainly be guilly of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be a cultural organisation. They are not aimed at acquiring State power, whereas a political party That is one of its main objectives. This is what one mean by saying ^functional relevance'. One cannot conceive of a democratic form of government without the political parties. They are part of the political system and Constitutional Scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the Constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politics and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This could be plainly antithetical to Arts.14 to 16,25 and the entire constitutional scheme adumbrated herein above. Under our Constitution no party or organisation can simultaneously be a political and religious party. It has to be either. Same would be the position, if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party. The fact that a party may be entitled to go to people seeking a mandate for a drastic amendment of the Constitution on its replacement by another Constitution is wholly irrelevant in the context. Constitution cannot be amended so as to remove secularism from the basic structure of the Constitution. Nor the present Constitution can be replaced by another; it is enough to say that Constitution does not provide for such a course - that it does not provide for its own demise."

"Consistent with the Constitutional philosophy, sub-sections (3) of S.123 of the Representation of the People Act, 1951 treats an appeal to the electorate to vote on the basis of the religion, race, caste or community of the candidate on the use of religious symbols as a corrupt practice. Even a single instance of such a nature is enough to vitiate the election of the candidate. Similarly, sub-section (3A) of S.123 provides that "promotion of, or attempt to promote, feelings of enmity on hatred between different classes of citizens of India on grounds of religion, race, caste, community or language" by a candidate on his agent etc. for the furtherance of the prospects of the election of that candidate is equally a corrupt practice."

Our secularism can never be Hinduism, as observed by Justice Verma. The layman in the country believes that Hinduism is a religion. Whatever may be it geographical origin or other scientific definition given, it is a religion and in no circumstances anyone has spelt it as Indian Secularism. To quote Dr. Radhakrishnan, "The Indian state will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government".

The Constituent Assembly immediately after our independence, on April 3,1948 passed a resolution in the following words:- "Whereas it is essential for the proper functioning of democracy and growth of national unity and solidarity that communalism should be eliminated from Indian life, this Assembly is of the opinion that no communal organisation which by its Constitution or by exercise of discretionary power vested in any of its officers and organs admits to, or excludes from its membership persons on grounds of religion, race, and caste, or any of them should be permitted to engage in any of them should be permitted to engage in any activities other than those essential for the bona fide religious, cultural, social and educational needs of the community, and that all steps, legislative and administrative, necessary to prevent such activities should be taken."

To say that Justice Verma is unaware of those observations and findings may not do justice to him. But it is true that he omitted to consider the only one judgment, which ought to have been considered, when he is considering the secularism of the country. The decision of the 9 member Bench is binding on the 3 member Bench. 3 Member Bench cannot override 9 judges decision. He might have felt that it is better not to mention it.

The persons who welcome the judgment, includes Sri. L.K. Advani, the President of B.J.P., he considers it as a seal of the highest judiciary in the country for his party's stand on 'Hindutva'. He claims that this is imprimatur for their party's slogan. V.H.P. President Sri. V.H. Dalmia considers this judgment as getting the green signal to go with propagating "Hindutva". Bal Thakkeray, inspite of strictures against turn believes that acceptance of 'Hindutva' as Indianisation by the Supreme Court gives a shot in the arm for his work. They have decided to place a new agenda now before the people which includes, Uniform Civil Code, total ban of cows-slaughter, re-construction of Kashi, Madura, Ayodhya Temple etc. A wave basing on majority religion, they hope, can be built. Now the shock of the Babari Mazjid is over and a new wave of 'Hindutva' can be created by them.

'Hindutva', as preached by Manohar Joshi, has got a background. It is the definition which V.D. Savarkar gave in the year 1923, "Hindu is a person who regards the land of Bharatvarsha from Indus to the Seas as his Father land as well as his Holy land -that is the cradle land of his religion'. The connotation of pitribhumi and punyabhoomi were brought by him and he explained that Muslims and Christians have their holy land in Arabia and Palestine and they can not equate their pitribhumi as punyabhumi. The propagonists of this 'Hindutva' ideology believes that this country can accept one Hindu culture and everyone must accept 'Ram'. In 1942 the slogan given by Sangh Parivar was Hindu wise politics and militralise Hinduism. They look for Hindu Rashtra. The preaching of Golwalkar and others were all in this line. Manohar Joshi, the present Chief Minister is a follower of Sangh Parivar. When he declares that Maharashtra will be the first Hindu State, it means that his decision is with regard to the 'Hindutva' and believed and preached by him.

Our country is having a constitution today and that constitution defines the territory and nature of the state. The Maharashtra is a State in existence as defined under the Constitution. If anyone wants it to be a different Maharashtra, either in appearance or char actor that will be different from Maharashtra as defined and understood as per the Consutution. No doubt, what Mr. Manohar Joshi said is different from the Constitution in the name on which he has taken the Chief Ministership. He has committed breech of the Constitution and violated the basic principles therein. His election also would have been set aside in the same manner as that of Bal Thackkeray. The Judge ought not have taken the pain and agony to define 'Hindutva' in an election case that too in the eve of general election. This judgment will have a very serious consequence and repercussion. It is to be reviewed by the Supreme Court, otherwise it may be construed as a green signal for building a Hindu Rashtra, which the frames of our Constitution and fathers of the freedom struggle never thought of.

The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated (Lands) Act. 31/75, Its Amendments and Consequences

(By R. S. Ramakrishnan, President, Consumer Disputes Redressal Forum, Palakkad)

The less fortunate amongst our brother are still living in lulls and such other places tar, far away from the limits of the so called educated sophisticated area. The mentality of man being selfishness, the urge for getting more and more property induces him to search for avenues of gain or other modes of acquisition of property. The Scheduled Tribes in these parts live in hilly areas, who happen to be the victims of the greed of the educated, a greed of his opposite. These hill tribes living in these far off places earn their livelihood by cultivation, either as owner, or as labourer. The extent of the property in no case is considerable. Hence, the Kerala Government has thought it expedient to gram these people small pieces of land in the hilly areas for their existence. In this way also these scheduled people happened to own small parcels of land for their existence.

Certain situations in which these scheduled tribe people find themselves in. are taken advantage of by some persons who intrude themselves into these areas with some money and utilise that situation to deprive the scheduled tribe people of their belongings, movable and immovables, instances are not wanting wherein, these unfortunates are deprived of their lands on payment of considerations, very significant. Other modes of deprivation also do exist. In all these cases, the effect is the same, the poor tribesman is deprived of his property, ostensibly, legally. That really happens in more cases than one. This kind of devastation, if I may put in that form, has taken root and a survey in this regard has shown certain results which unless checked by law would attain proportions beyond limit.

The Kerala Government, therefore, thought it necessary to introduce law in the form of an Act and (hat is Act 31/75, which received the assent of the President on 11.11.1995 and it came into force front the date of publication in Kerala Gazette dated. 14.11.1995.

The scheme of the Act consists in the restoration of the lands already alienated before the commencement of the Act and after 1.1.1960, and secondly the prohibition of the alienation after the commencement of the Act. The 1st portion is simple, since it was declared that the transfers during that period are deemed to be void, with the consequential right of the transferor to have a retransfer. The argument that seems to have been advanced is that the transferees in such cases, had parted with their money and also would have affected improvements which would deprive them of their valuable right of owning or otherwise dealing with his property namely money. It seems to have been also argued that bonafide transfers also do exist. This has been met by the Act itself by providing for re-imbursement under the said two heads, namely paying down the money and the value of improvements. The transferee gets his quid pro quo either in full or to the extent he is entitled for his transferring the property to the original transferor. This provision is a salutory one. For one thing, the transferor gets his value, for another il meets the argument that the provision is unconstitutional. I am not dealing with (he constitutional aspect herein as il is only unnecessary at present.

The order and most important provisions of the Act is contained in the prohibition of the transfer after the Act and penal provisions that visit the transferee for the violation of the prohibition. The idea is not far difficult to be sought. The transferor backward tribes man. might find himself in situations wherein monitory assistance is essential, being pressed in this regard he might of his own will transfer his own property. If such a safety valve is not provided for in the Act, then the purpose of the Act itself would be defeated. The hill tribes man in such a situation is akin to a patient or otherwise a defective minded man in the eye of law. Such persons are to be protected not withstanding their doings. Hence, there is an absolute prohibition of transfer. This absolute prohibition would be of no avail unless a penal provision is enacted for contravention thereof.

The relevant portions of the Law in this respect are discussed in a very summary manner.

1. The implementation of the Act is left into the hands of the District Collector as in any other matter. To me it appears that the District Collector's anvil are already full and hence, another officer of equal rank preferably chosen from the judiciary would have been better and happier. This is only mentioned in passing of. The contravention of the provisions in the Act, the direction for reconveyance i.e., the restoration, and connected matters are to be done by the District. Collector who is termed as the 'Competent Authority'. The 'Competent Authority', therefore, is the head of the Executives in this regard. This concentration of authority would necessarily involve delay in implementation even if a separate section is officed in the Collectorate, which in its turn would be the 'note putting" section and invariably and ordinarily these notes are the guidelines of the actions of the Collector. Such notes are not subject to correction or verification. With the consequential draw back of "becoming a slip in the direction of error or of excessive, correctness. Be it as it may, the Act as at present enjoins the District Collector the duties in the matter of implementing the provisions of the Act.

Another important provision of the Act is the definition of the word transfer. In the “Anyadeenapeduthuka". That idea is conveyed by the definition in the word "Transfer" with some additional word vila panayam and unduruthi. The summon bonum of the word "'transfer" consists in the preservation of the immovable property of the tribesman without any encumbrance whatsoever. Any transaction by which these immovable properties are subject to any sort of liability, whether it be for real or true or absolute necessity is eschewed. This is the salutory rule in the interests of the tribesman. The question that might crop up in the matter of such absolute prohibition is and to how the tribesman would be above to meet his demands in money if the 'Transfer" is prohibited. . It is to meet such contingencies that provisions for granting the necessary help are introduced. In this way, the imagined hardship is crossed over:

The regulations for implementing the Act were framed only in 1987, with retrospective effect from 1982. The alienation of lands subsequent to 1982 were not recognised and were also prohibited. Such transfers would entail criminal prosecution also. As per this Act, the tribals filed petitions before the Revenue Divisional Officer for the restoration of their lands transferred earlier. Now, it is understood that about 8000 tribals alone had taken steps to the re-transfer of their lands.

At this juncture, it would be only necessary to mention the exemption provision and I hey are as in any other law the public dues and also dues to the banks and Co-operative Societies. Yet another feature of the Act that is to be mentioned in passing is the penalty provision in the Act and the cognizance of offences. S. 13 of the Act mentions the penal provisions and S. 14 mentions that only Magistrates of the Cadre of 1st class alone are competent to take cognizance of the offences. The complaint in this regard is to be filed by the Revenue Divisional Officer having the jurisdiction or by any aggrieved person. Two other minor matters consist in the immunity of the tribesman from Chap. X of the Code of Criminal Procedure and ban of the legal practitioners from appearing in cases connected with the Act. From the very nature of things there cannot be any application regarding dispute as to possession, if the Act is implemented properly. Even if any other matter arises, it can only be between inter tribesmen. The non-applicability of the Chapter X of the Cr. P.C. in its absolute form, might create difficulties unless the Act is suitably amended. As to the disability of the legal practitioner to appear and plead, the reason is not far to seek. The last section need not be considered herein as it is "Saving' section. No doubt other provisions that succour to the needs of the tribesmen do exist. This Act is in addition to those provisions. I am not touching the constitutional aspect of the law in question nor do I consider it necessary. Directive principles enshrined in the Constitution are indended only for such purposes as are mentioned in the Act. That being so, the validity following at close heels the directive principles contained in the Constitution.

I have dealt with the Act, in the main, as to the purpose of the Act and the implementation of its provisions in a very short manner.

The tribals of Kerala State, of late initiated action demanding implementation of the above said Tribal Act, 1975. They also moved with the Government, a number of times, praying repossession of the lands usurped from them. In a pending case, the Hon'ble High Court of Kerala recently had directed the Government to restore the alienated lands of the tribes within six weeks. But the Government proposed to amend the existing Act, so as to provide alternative lands to the tribals instead of their lands once alienated. Accordingly, the Government introduced bill in the last session of the Kerala Legislature Assembly and got it passed into Act. This is because the Government does not wish to evict the settlers who are already in possession, cultivating lands, raising crops, and making improvements therein. The tribals who were originally owners of lands, were dispossessed from their lands, when settlers began agricultural operations there. As per the Kerala Land Reforms Act, 1970, the ownership of lands vested with the settlers and the illiterate unfortunate tribals became bonded and paid labourers of their own lands. By the implementation of the amendment, to Act 31/75, the tribals would be displaced from their own lands where they have been residing there for years. By the amendments it is understood that the Government only proposed to pay some compensation and one acre of land to the tribals. This would only throw the tribals here and there. And the development programmes would never benefit them. The actual beneficiaries would be settlers. As per the present set up, the encroachers are being permitted to settle in tribal lands by distributing title deeds to them and whereas the tribals do not have any documents to prove their possession of lands.

We have yet to see how far the amendment will benefit the tribes.