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.

Protest Complaint

(By S.A. Karim, Advocate, Trivandrum)

The Criminal Procedure Code, hereafter refers the Code, provides provisions for police charge case and the complaint case. It does not contain any provision for protest complaint. Police charge case starts with first information report and ends with fifing charge to a competent court for trial. Ss.154 to 173 of the Code state the procedure. It relates to cognisable case. After the first information report, the investigating agency finds the case is either false, non-cognisable or mistake of fact, etc, refers the case and intimates the same to the informant. Kerala State Police has prescribed the following form.

K.P.F. ..........,................. Order No.............

Kerala Police

(Duplicate)

Notice to informants under Section 157(2) and 173 Cr. P.C.

Please take notice that your complaint under Section.............Indian Penal Code (a) has been reported to the..............Class Magistrate of.........................to be (1) false (2) non cognisable, (3) mistake of fact or law (4) undetectable (cases in which investigation are referred at any stage comes under the head) (5) under S..............IPC (b) and that if you want to oppose this report, you will have to do so, before the above Magistrate within a week from the date of receipt of this notice.

                                                                                          Signature of Police Officer

Notes:

(1) If under other laws, specific enactments (a)

(2) Number (5) is to be used 'only' in case charge sheeted by Police.

(3) Score off portions not applicable.

This notice is called refer report. Along with the refer report the aggrieved files complaint on the same matter to the competent Magistrate. It is called protest complaint; In the instant case protest means the failure of the investigating agency to file charge on the stated offence.

Ss.200 to 203 of the Code deal with complaint case. It applies to non-cognisable case, and provision requires written complaint to initiate proceeding. In case an aggrieved files complaint to a Magistrate Court on a cognisable offence, the Court in turn sends the same to the police for investigation under S.156(3) of the Code. It's possibility to refer cannot be ruled out. In this contingency, the investigating agency intimates the complainant in the form stated. Protest complaint is the only remedy open to the case referred on police investigation and on complaint sends down under S.156(3) of the Code. S.2(d) of the Code defines:

"Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

The definition relates to the 1st complaint. The protest complaint is one that is reported against by the investigating agency once. There is no provision in the Code to this purpose. Many a Magistrate demands provision for filing protest complaint. In the given circumstance, the aggrieved has to forgo the offence. So, it is time to incorporate suitable provision in the Code of enable the aggrieved to file protest complaint.

Arrest, Bail, Jail and Trial

(By S.A. Karim, Advocate, Thiruvananthapuram)

The procedure for arrest, bail, jail and trial of criminal case, among other things, are dealt with in the Criminal Procedure Code, hereafter referred the 'Code'. There is cognisable and non cognisable offence as well as case. In the former police arrests the accused without warrant from a competent court. In the latter warrant is a pre-condition for arrest. The classification of offence in the first Schedule of the 'Code' details cognisable and non-cognisable offence. The same Schedule speaks about bailable and non-bailable offence.

Arrest of accused is the most essential part of investigation, enquiry and trial. Without arrest, or bail, or jail, no trial ends. Chapter 5 of the 'Code' narrates the arrest of accused and its various circumstances. It includes arrest on refusal to give name and address, arrest by private person, and arrest by Magistrate. Section 89 of the Code relates to arrest of accused by a Court on breach of the bond for appearance. Section 151 enables the police to arrest to prevent commission of cognisable offence. Section 390 of the 'Code' is another provision to issue warrant by a High Court to arrest accused in appeal from acquittal.

The Police once arrests an accused, produces before a competent Court. The Court either grants or refuses bail, considering the gravity, seriousness and nature of the offence. Ss. 436 and 437 of the 'Code' speak about bail of accused. The former is for bailable offence, and the later is for non bailable one. Section 437 reads -

"When any person accused of or suspected of the commission of any non bailable offence, is arrested or detailed without warrant by an officer in charge of a Police Station or appears or is brought before a Court, other than the High Court or Court of Session, he may be released on bail, but.......". The underlined portion is the same in Section 436. It is singular in expression and pertains to arrest, or appearance or brought before a Court for one particular offence.

There is instances, where the Court refuses bail to accused once arrested, appears or is brought before a Court. If the same accused involves in another offence, the Police submits report to the Court narrating the offence involved. In such case, certain Magistrates issues production warrant, take cognisance of the offence and either grants or refuses bail to the accused according to the circumstance of the case. Many a Magistrate refuses to act on the wording of Sections 436 and437 of the Code "arrested or appears or in brought before a Court" as it relates to one particular offence. The later view prevails it takes longer time to try cases of under trial prisoner. In the former view the matter becomes easy. Speedy disposal of under trial prisoner is the rule. Everything depends how a Magistrate understands and interprets the relevant portion of law. Once a matter becomes un-settle, it is just and proper to settle it.