The Impact of American Judicial Review in India

(N. Haridas, District Judge, Alappuzha)

Judicial review in India is rather a post independence authority which shall become totally relevant only from the date of the Constitution. After independence, though it started slowly and moved cautiously, this institution in judicial pretence has grown very powerful in size and importance in a very short period. Judicial review is anew subject, being a new discipline to the Courts of free India as well as to the people, in negotiating the daily trial of law, but it remains a subject often for scholarly contest among legal academics and veterans also, concerning its expansiveness and new power pretentions. On the Constitutional plane, the subject gains added relevance because of the increasing applicability of this new court-philosophy in a political life, upholding the rule of law. As Justice Holmes said 'law is not logic but experience', and in the constitutional experience of courts in a democracy like India, there is no topic today as important as judicial review. For the Indian courts and the people, this institution has come as the child of the traditional power of law, which had been unassailable and irrevocable in the colonial days, but becoming acute and life-size only after independence.

2. When the Constitution of India has been adopted in January 1950, all on a sudden and quite abruptly, the locomotive of Indian jurisprudence - a colonial power - sector in absolute restraint, and possessing no sovereign authority has been pulled into a new direction and vitality to move with powers so vague as unlimited. The reason and the cause for this ever increasing power of courts is none other than the new authority in judicial review - a power claimed by constitutional courts for judicial superintendence of the action of the other two co-ordinate branches - the legislature and the executive. This adoption and incorporation of judicial review remains a formidable event in the history of law, bringing new dimension to court's power, the exercise of which affects and controls the power and territory of the other two branches. We were trained only in the colonial experience of British law for long, but even today the British law has no judicial review, in spite of the history that it was they who started to built and honour the power of courts and its decrees through the instrumentality of the interpretation, and it is they who solemnly swear by this power for carrying out this job in full independence. But in that traditional society, judicial review still is a strange subject, and even Dicey was critical of the fast growing power of American judicial review in the 19th century. So, when the Constitution gave Indian courts the power to adjudicate on the legality and correctness of the acts of the executive and the legislature, the courts were forced to do a job, about which for want of actual experience, they had no definite idea by precedents. The Courts were compelled to build a new discipline. We had insufficient or no experience at all on this new power during the dawn of freedom, and the traditional storehouse of legal tradition - the British Isles -provided no precedent for us. But it became inevitable that in this entirely new occupation, our courts had to be geared up, reeducated and trained, and during the last 45 years of constitutional process, which may be called as tumultous and stormy, we have built up a stock-pile of constitutional experience and legal philosophy that can even match or surpass the great democracies in the West. Once this power starts to move with full force, we are forced with another immediate duty also, which is fixing the limits of judicial review - a limit none can mark out with certainty while dealing with questions of political propriety, on the touchstone of law. But that uncertainty does not mean that this power sets no limits on itself. Any power without restraint leads to excess and power abuse, and the question is whether courts also are prone to such mistakes and mishaps. We can see that there had been wrong and excessive power exercises by courts also in this respect, but there were also contrary occasions when there were sudden withdrawals and abdications of court authority, when it was most necessary. Power persuasions often lead to dangerous territory - a place very dangerous to enter but still more dangerous to withdraw, often.

3. Judicial review, which according to law's historian was an unknown power to courts, came for sudden view for the first time in the Unites States, and this advent marked the beginning of a new era in the court executive, court-legislature 'confrontation' (the word 'confrontation' is a misnomer). India enjoins this power in the Constitution as a definite, declared authority vested with the Courts, but the nature of the authority which had to be exercised has been so explosive and cataclysmic on certain situations that this power is bound to remain loudly controversial. Such controversies will certainly rock the Indian legal scene with its violent upheavals, turns and tumults, but as the power is so massive and intimidating according to political jargon, such occasions must be usual also. The tumult of a confrontation can be a churning process looking so dismal and anxious in the beginning, but that alone can be result-producing in the end. Often it is true that this review power sits in judgment not only of legal questions, but political values also. The age old notion that the court is merely the interpreter of municipal laws has to come to an end after the Constitution of the republic came into force, and under the same Constitution, the court is fast transforming itself into a 'powerhouse' producing and even declaring the first principles of free government - a move euphemised as legal interpretivism. But in the Constitutional life of a free democracy, this far-reaching Court power becomes so sensational that it can be the salient for court-politician conflicts, invariably leading to ideological as well as power conflicts also. The age of judicial review in India is modern, and its experience very short, but its very comprehensive hold on all areas of lawful human-conduct is rated as thorough, even if its cautious inclinations do want to speak otherwise.

4. India did not invent judicial review but only adopted it. The matrix of this power is the United States Supreme Court. This conclusion also is challenged often by those who say that though Rule of Law as such is not so powerful as judicial review, it is the womb wherein the foetus of this giant is engendered. The historian will contend that it was Edward Coke who challenged the King of England and therefore, it is he who ought to be the father of judicial review. Also there are many others who contended that even before Chief Justice Marshall, there are many U.S. Judges who have attempted judicial review and John Marshall had been given the credit quite wrongly. But even after a long debate, Marshall has again been placed atop the pedestal.

5. Before going into the Indian experience, the starting point of discussion may be how to define this power which often changes its character, and manifests its expansionist and high-flown tendencies on occasions of exercise. In the American history of judicial review, which is the trend setter and 'precedent-setter' for all countries owning up this power, this is a constitutional leviation on legal and political issues, both substantive as well as procedural. When this power is exactly sitting in interpretive judgment of existing law, as interpretation has traditionally been understood by the legal society right from Roman times, critics call this power illegitimate and unauthorised. But, that challenge alone does not make judicial review wrong-footed, making it ineligible for its latest role. The American jurists, who enthusely witness the flag-march of judicial review, say that this power cannot be limited to the power of interpretation of municipal laws, and this is as substantive as to be rightful and legitimate to examine the motive, propriety and legitimacy of political values, which necessarily change into constitutional values later on. Here the Tocquivillean expression that there is no political question which does not become a judicial question tomorrow, come helpful to define and explain the nature of the subject. In 1803, Marshall declared that it is "the province and duty of the judicial department to say what the law is", and Marbury v. Madison became the law's explorer guiding not only the judicial investigator but the adventurist also searching to arm himself with this power. This power had its ups and downs in the American scene, and there came a long silence since the Dred-Scott decision. The American Civil War, the Civil War Amendments and the post - Civil War thrusts of the Reconstruction controversy gave the court a new vigil, and energised this power also, but the exercise of the same had certainly not been activist as it ought to be after a Civil War. It is notorious that after F.D. Roosevelt became President in 1933, there was the antijudicial attempt to politicise the Supreme Court, or at least to ensure a majority for the New Deal policies of the President, who wanted the State to more meaningfully interfere in the nation's economic management. This the court will not allow, and the provoked President responded with the threat to pack the non-conformist court with the pro-president majority. Under the humiliating bogey of a nine-Judge bench having a much larger face-look packed with political appointees, the court buckled, and in order to escape the insolent addition, it suddenly changed course and reversed the judicial philosophy by ratifying many New Deal statutes. No doubt, on the retreat executed, the Court philosophy changed, and its prestige suffered a serious set-back, and the people supporting judicial review condemned this change of course by court as opportunist and capitulative. But it was in 1953 in the Steel Seizure case that some lost ground has been retrieved by the Court through a new assertion, declaring illegal the seizure of some Steel Mills by President Truman, as part of Korean War effort. That was only a restart, and more momentous things are to come in 1954 for American judicial review, when the Warren Court delivered its historic verdict - Brown v. Board of Education. In size and power, Brown was really a judicial smasher, rather like a judicial coup d'tat. Many traditionalists went on to believe that the apocalypse was at hand. This decision set off a political storm, criticising, challenging and condemning the Court for naked power encroachment. This was condemned on the ground that the court is reaching out its hands too aggressively towards anything it can lay hand on, and the days of Constitutional terror are at hand. Brown was making history by breaking new ground, and was introducing court authority into an area, which till then indisputably belonged to the domain of the executive and the legislature. It was a domain which these branches feared to tread for long also. It is said that Chief Justice Earl Warren had delayed that "judgment-delivery' by many months, in order to obtain unanimity, and when the court spoke with the united voice, that became its basic strength. But in order to appease the White society's violent reaction, the court moved only in slow-motion in executing the order. But in spite of the cautions and danger-signals issued, there was no looking back for the court thereafter, and the power has gone upbeat, and a series of block-busters exploded in the Court room thereafter. The Court held in Gideon v. Wainright that all defendants in criminal prosecutions are entitled to be defended by counsel at State expense, if he needs such aid because of want of means. In Nixon v. United States, the Supreme Court ruled that the President of the United States has to release all tapes held in the high security racks in the White House for judicial scrutiny, and thus all notions of national security and presidential privilege were blown to bits. In the later case, Roe v. Wade (1973), the Supreme Court ruled that for a woman, the right to have an abortion is part of her right to privacy, and so a right in substantive due process. Even today the Roe decision is a raging controversy for jurists and politicians alike. The Court was giving the impression that any area held reserved for the executive and the legislature, are no more their exclusive territory. Against formulating the new power, which till then remained the exclusive preserve of the other two independent branches owning sovereign power, there will be scathing criticisms and accusations, and this expanding judicial pretension shall lead to tire view that the liberalist majority in the Supreme Court is trespassing into the protected areas of the executive and the Congress, and therefore, they wanted this power declared illegal by a constitutional amendment, or by review by the same court. A constitutional amendment, in this respect will not be politically appropriate, as such step can be viewed as attempt to undermine the judicial authority to properly restrain the abuse of power by the other two branches. Therefore, it was felt that the more desirable course for the President to do was to change the composition of the Supreme Court by selective appointment of more and more conservative or non-liberal judges in future. Nixon made a start in the way by appointing two conservative judges, but then he saw that the court pliilosophy is not changing so easily. Warren Burger - the Nixon appointed Chief Justice, was considered not sufficiently conservative, and Rehnquist was the only true conservative to preserve the originalist argument. Tire clear change into conservatism came in the Reagan years when Rehnquist was nominated Chief Justice from the position of puisne judge. Under the Bush Presidency, the Court composition became definitely conservative, and the opponents of the liberal court heaved a sigh of relief that at last the court was returning to its original jurisdiction. It is true that the composition of the Court could be changed, but then the question is how can settled law be changed, and on what tenable reason. The tilt towards orthodoxy may be a reality but every settled legal right and principle cannot be reinterpreted into a new but different meaning in order to cancel the old meaning. Through a historic verdict, the people are getting a new right or losing an old right, and as the situation settles down, this judgmade law becomes not so easily changeable, as the court philosophy cannot change according to the latest opinion polls. One of the substantive merits of law is its certainty and permanency, and so any law-change at short interval will be a dangerous move. Then it does not follow that all previous decisions such as Brown, Gideon. Roe. Miranda etc., are going to be undone by the new majority, in haste. Even Rehnquist had to confess that a court decision which stood for a considerable time is difficult to be reviewed and revised, as it will unsettle the law unnecessarily. Because of vital Constitutional consequences, a sudden change of view in law causes grave political fall out and uncertainties. The notorious Bork hearings in the US Senate reveal that the bogey of an arch conservative and revisionist Bork, projected by his foes as a walking constitutional amendment, had been a baseless nightmare, as Bork himself declared in the Caucus Room that the long-held judicial decisions are to be honoured, as any review will be affecting the confidence of the people in the Court's power to safeguard the stability and permanency of law. How can the Brown decision - the most enterprising judicial assault of the century, be altered after 40 years of acceptance, practice and societal incorporation? On the applicability and details of the Brown decision, the future legal explanations also may change, but the court-proclaimed constitutional rule that there cannot be separate White and Black schools in future cannot be revoked in a new interpretive putsch, or even by a new law.

6. This brief reference to the American law is made specifically to refer to the history and rise of the power of judicial review, whose matrix remains the United States Supreme Court. Americans started this move in the logical motion, which in course of time became more emphatic, regular and activist. The apprehensions, fear and hesitations that plagued Marshall before embarking on the new drive to acquire this power for the court had been cumbersome and compiled. Being uncertain and vague, it had few promoters, supporters and proponents in the beginning. In order to avoid a confrontation with the executive and the eventual sudden death of this new power, Marshall had to start with a declaration which went in favour of the President. He played a diplomat also in the beginning in political logic, and even after reaching the firm ground he issued many court fiats in favour of strengthening the Federal Government, about the merit of which every American patriot must remain happy through history. The Marshall declarations had regularly been favourable to the reinforcing of the federal power, and it became confrontationist only rerely. The grand patricians of American revolution and Constitution - Jefferson and Madison were alive to witness the momentous march of Marshall with his judicial revolution, and Jefferson called it illegitimate. But this did not stop Marshall, who developed this power in a clear tactical move, which in a future situation will he saved of challenges because of his laying the undeniable basic precedent in the beginning, declaring that the court possess this authority so definitely. There are many historians who record that the growth of the American Federal power, the integration of the Union and the rise of American Presidency as the most powerful office on earth can be traced back to some decisions of Marshall and he shall remain the great patriot also. His judicial statecraft had been so special to history. The American case reach this stage only after a two century long creation, consolidation, reorientation and procedural adjustment, and it is so formidable today. It is this very powerful 'end -product' of American judicial review which became the starting point of Indian judicial review in 1950. Till independence, it was the basic principles of British rule of law which provided the guidelines for Indian courts to move ahead, but with the establishment of the republic and the conferment of this constitutional authority, (more recently qualified as sovereign power) the Indian courts have had to undertake and undergo a sudden project-conversion, as a full scale engine of review power. This new authority, not being granted to or acquired by the British courts at any point of time, the example for India to take up a thorough search into the scheme and history, shall be the United States only. What was invented by Marshall in an atmosphere of scepticism, suspicion and judicial diffidence has become a written directive in our constitution, authorising our constitutional courts to declare the law and to review the authority of the other two branches, and also tell what is fundamental law and ordinarily law, and the difference between the two. It is necessary to remember that for American judicial review also, the basic premises were supplied by British law and the Blackstone Commentaries.

7. The American example is always tested with English rule of law, and it is history that American judicial review also is guided by the principles of English rule of law, as then obtaining, though this new power appears a thoroughly different progeny. How the modest pretensions of English rule of law could co-exist with the activist, expansionist and aggressive power of modern judicial review, will be a vaulting issue for contention, and that question itself will need a very long space to explain. The makers of the American Constitution - especially its architect Madison, poured over hundreds of British and Continental legal treatises to write down the draft of this 17 page document. Revolutionary America was fascinated by the Commentaries of Black-stone and the anti-regal references of Judge Edward Coke. But they were more fascinated by Montesqueau and the French revolutionary Rousseau - and the draftsmen went on to improve on the British tradition they had in hand. The French Revolution was yet to take place, but the forces of the impending revolution were very much in sight, and this the Constitution makers did not miss. They planned for a total republic - a new experiment after the Greek City States. If the judiciary does not supervise the process, then who will guarantee the Bill of Rights was the Marshall question.

8. India, as a republic, is the largest democracy on earth with more than 900 million free people inhabiting a large area of global surface. Our democracy has had an enlightened start, and perhaps the only wrong occasion for our system had been the Emergency days of 1975-77, when world democracies denied to India the status of a free State. But the tenure of that Constitutional breakdown had been short, and again the free institutions were placed on the fast-track of restoration, and quite unusually India regained her status as a free republic. Rule of law, as a subordinate State department, can exist even in non-democracies also, but judicial review can exist as an independent power only in a constitutional democracy. This power eventually has come to mean the authority given to courts to exercise sovereign power, as being authorised to supervise the other two branches, to which the Courts were hitherto subordinate. When India proclaimed a republic, the Federal Court was converted into the Supreme Court of free India, and it was the same judges who had to propound the first principles of the constitutionalism of the new republic. After 45 years, the republic stands with a credit sometimes more honourable than many traditional democracies. The Commonwealth of Nations are not all democracies now, though the transfers of power were made mostly to people's leaders. Many African and Asian nations immediately abandoned free government. Myanmar (Burma) changed into a military State after a short spell. Pakistan was mostly having military Governments, and occasional democratic revivals, but now it is speeding up its democratic process. Certainly, the courts in Pakistan, especially the Pakistan Supreme Court, while exercising review power has been more assertive on recent occasions, and when the dissolved Pakistan National Assembly was restored by the Court, it was supplying an unusual dimension to judicial review, which even the Indian or American Supreme Courts did not endeavour. Africa had elected governments in Kenya, Nigeria, Zaire, Liberia etc., but we know that these governments ended up as martial law administrations or dictatorships. In those situations, the rule of law and judical review has no role to play as the defender of people's rights.

9. India remains a poor economy by world standards. It has a high illiteracy rate also. But the Indian commitment to democracy, looks as though it has come of age, claiming a place among the established democracies on earth. A comparative look into the different non-judicial areas may also be necessary for commenting on the new power of judicial review. In that search, it may also be necessary to know what is the top-soil serving the growth of this power best. Even after many centuries of democratic growth, the English people continue to refuse to give his power to their courts, and do not consider this power necessary to protect their Bill of Rights, but with no written guarantee ever made anywhere like a constitutional guarantee. For the British people, their Constitution is not in writing, but it is part of their way of life.

10. There is no doubt that the Indian Constitution has been planned to have a judiciary with plenary powers in judicial review. When any power is unlimited and undefined, it is prone to excess and abuse, and Indian Judicial Review, also come for adverse comments on different occasions that it is exceeding boundaries. Exercise of power cannot be unabusive and non-excessive on all occasions, and that is a sin attached to power always. The Court also cannot have a different discipline in this respect when no restraints are placed in its way. But judicial restraint and moderation, and judicial courage and impartially are some of the eminent characteristics of judicial review, and in preserving those qualities, in high discipline, except during the 1975-77 Emergency, the conduct and reaction of the other two brandies towards courts had been consistently and consciously loyal and co-operative, when compared to many new democracies in Asia and Africa. Court decrees have been obeyed, and there was no basic challenge to court verdicts generally, even on occasions when there could have been a Constitutional crisis. May be there were sometimes dilly-dallying in implementing court orders, but there had never been any direct affront to the authority of courts. An exception to this general behaviour of compliance had been the stand taken by certain legislatures who claim the floor of the House as their sovereign territory. This led to a reference to the Supreme Court, and the verdict recognises the power of courts to examine even a motion on House contempt. Dr. Bonham's case, in British history is no more good law in India. The Manipur Speaker's case is a firm precedent in the assertion of this power, when the Speaker, under court process, was sub-poenaed to the bar of the apex Court. The executive also must be diligent to follow the rule that any attempt to defy the directions of courts, will only determine the law's power in supervision. But, being a new authority, and an essential power to regulate and balance the State machine through checks and balances, these cases must give rise to contentions, conflicts and counter changes, as usually thrown against a manipulative power. But, in spite of these ills and defaults, judicial review appears to have sunk deep roots in India, and this is because we have shown an abiding concern and commitment to evolve a new and erudite tradition on people's rights, very much in conformity with the regulations of Dicey- and his rule of law, but more comprehensive in substance. Judicial Review is part of the Sovereign Power of the State, and it is quite natural that this power often embarks on discussing and assessing political values and the first principles of free government.

Issac Ninan's Case : A Critique

(By Kalesswaram Raj, Advocate, Centre for Legal Studies, Payyannur)

The decision rendered by the Division Bench of our High Court in Issac Ninan v. State of Kerala (1995 (2) KLT 848), would call for serious discussions from the social, economic and legal points of view. Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter called as 'the Act', are held to be "unjust and unreasonable as they offend Article 14 of the constitution". Thus the impugned provisions were held to be unconstitutional and void by their Lordships.

First of all, with due respect, it is submitted that although the decision takes into account the sorry side of the concept of fair rent fixation, it ignores the other side of the coin and as a result, the possible socio economic consequences of an abrupt expulsion of the impugned provisions were not be examined in its totality. No doubt, our prudence would only agree when it is said that the method of determination of fair rent in the Act is unreasonable and even unfair. But the method of determination even if unjust, would not have been taken as a ground to negate the very concept of fair rent. The concept of fair rent, as different and distinct from its mode of computation, ought to have been taken as a socio economic dictum attempted to be maintained by the operation of law. It would appear that such a distinction was not drawn in Issac Ninan. The result would invite more complicated socio economic questions. Once Sections 5, 6 and 8 are expunged from the statute book, it is obvious that the landlords on the other hand would be more equipped to enhance the rent on their own options and desires, as many times as possible, without being controlled by any law or law courts. This can precisely lead to two kinds of consequences - (1) unreasonable and uncontrolled evictions leading to grave socio economic unsafety and uncertainty. (2) An enhanced and indirect tax on the general public as a result of the situation in which the tenants are constrained to withstand the uncontrolled enhancement of rent by enhancing the price of the goods sold, manufactured or service rendered to the common people. So it is politely submitted that instead of a total cancellation of the provisions, a scientific modification in the method of determination of fair rent without opposing the sociological jurisprudence involved therein would have been more impressive.

Secondly, it is submitted that a similar decision rendered by Andhra Pradesh High Court in Mohd. Atur Rahman (died) represented by his Legal Representatives v. Mohd Kamaluddin Ahmed and Another, 1987 (2) RCR 254 could not stand for long on account of a subsequent judgment by the Supreme Court. In Mohd. Atur Rahman's case the reasonableness and constitutionality of Section 4 of the A.P. Buildings (Lease, Rent and Eviction) Act, 1960 was placed before the single Bench of A P High Court. Section4 of the A P Act, is almost analogical to but more stingent than section 5 of our Act, in as much as the said section also envisages the fixation of fair rent on the basis of the rent prevailing in the locality in 1944 with permissible marginal increase. In the above quoted decision, His Lordship Justice P. Rama Rao held that the section is arbitrary and unconstitutional and violative of Article 14 of the constitution. But in Sant Lai Bharati v. State of Punjab (1988 (1) RCR 394 SC : AIR 1988 SC 485) the equivalent provision in East Punjab Urban Rent Restriction Act (Section 4 of Act 3 of 1949) which contemplates the fixation of fair rent on the basis of rate in 1938 was held to be not unreasonable by the Supreme Court. The apex court also refused to declare the impugned section as unreasonable or unconstitutional. Interestingly the constitutionality and reasonableness of fair rent again came up before the Andhra Pradesh High Court in Suresh Gir v. X. Sahadev (1944 (2) RCR 664). In this case relying on the view expressed by the apex court in Sant Lal Bharati's case (supra), the A P High Court itself held that the law laid down by the same court in Mohd. Kamaluddin's case (1987 (2) RCR 254 Supra) was not good law. It is respectfully submitted that this interesting precedential background does not find a reference in Issac Ninan's case. So, in an application for fixation of fair rent when comes up for hearing before the rent controller, the temptation of Sant Lai Bharati cannot be overlooked, despite the decision in Issac Ninan.

Reservation - A Boon or A Doom?

(BY Reeba Elizabeth Chacko, II Year LL.B, National Law School, Bangalore)

India is a land of multiplicities. Cultural, religious and linguistic pluralism is the hall mark of our national identity. This being the case, to protect the interests of people belonging to all communities irrespective of their caste, creed, religion, region, language, custom or sex, becomes, not a very easy task. It is but natural that in such a land of diversities, at least a part of the population belong to minority communities. There is little difference in the case of our nation too. Indian population comprises of a large number of minority communities, especially, religious & linguistic minorities. And there will not be a voice of dissent, when one says that most of these minorities have been backward socially, educationally and economically. The reasons for the same could be cultural, historical or social. Undoubtedly, to bring about equality among such unequals is not an easy task at all.

Article 14 of the-Constitution of India guarantees the right to equality to all citizens of the nation. However, treating unequals equally is not what is intended! This has been amply taken care of by the fathers of our Constitution. Although Articles 15 & 16 clearly prohibit any kind of discrimination whether in education or employment on the basis of religion, race, caste, sex etc. it is further provided that nothing shall prevent the State from making any special provisions for women & children (Art. 15 (3)) or for the advancement of socially & educationally backward classes of citizens or for the scheduled castes & the scheduled tribes (Articles 15(4) & 16(4)). These provisions were added to our Constitution after long drawn deliberations in the Constituent Assembly.

A glimpse through the Constituent Assembly Debates gives a very clear picture of the views and opinions of the various majority & minority communities expressed through their respective representatives in the Advisory Committee on Minorities in the Constituent Assembly, on the said issue. A few representatives had expressed their fear that under any future Constitution of India by which majority rule will be established, there can be no shadow of doubt that the majority rule will be the rule of the Orthodox Hindus, that there is a great danger of that majority with its Orthodox Hindu beliefs & prejudices contravening the dictates of justice, equality and good conscience, that there is a great danger that the minorities may be discriminated against either in legislation or administration or in the other public rights of citizenship and therefore, it is necessary to safeguard the position of the minorities in such manner, that the discrimination which is feared shall not take place. Further, they demanded that it is not sufficient that these minorities and backward classes be merely provided with rights, but if these declarations of rights are not to be mere pious pronouncements, but are to be realities of everyday life, they should be protected by adequate pains & penalties from interference in the enjoyment of these declared rights. In the light of their past experiences and their existing socio-economic situation, these communities may be perfectly justified in making such demands. The committee by an absolute majority acceded to these demands. It would be most interesting to note that many of the representatives of these minority communities themselves were satisfied with such provisions for equal opportunities to all* to be guaranteed by the Constitution and even made it clear that they did not want any further special preferential treatment over the majority. And this approach of theirs was widely appreciated by all other members in the Constituent Assembly. The Parsi Community is one such minority community who were totally against any kind of reservations for them and yet, today they are in the forefront of Indian Economy after forty eight years of independence.

The Constituent Assembly however decided to give some privileges to the minorities and the backward classes, keeping in view their socio-economic and cultural background, so as to enable them to come up to the level of the general community and to compete with them as equals. It was with this object in mind that the concept of 'reservation;' was given birth to. But the Constitution makers made it amply clear that such kind of 'reverse discrimination' should continue only for a period of ten years after the commencement of our Constitution. It was intended that the said object should be achieved within this period, after which all citizens of the country should be treated equally, so that they would compete in a common category. However, by the sixty second amendment to the Constitution, the Indian Parliament extended this time period to fifty years. The so-called elected representatives of the people seated in the Parliament House seem to be confident of achieving the same goal with fifty years which our Constitution makers sought to attain in ten years, but failed (which might have inspired the Parliament to make the 62nd amendment).

With just five more years to go to complete this fifty year period prescribed by the Parliament, the time has come for retrospection. It would be most relevant to ponder upon some of the issues related to this much-talked of 'phenomenon' of 'reservation'. What has been the Government policy of reservation over the last forty five years? How effective has it been in achieving the so-called objective of emancipation of the backward classes and the minorities? In other words, are we on the right track? Along with the legislatures, the Supreme Court of India has also played a very important role in defining the limits of such reservations whether it be in education or in employment. The Supreme Court, in the cases of State of A.P. v. Balram (AIR 1972 SC. 1375) and Rajendran v. Union of India (AIR 1968 SC. 507) held that reservation should not exceed legitimate limits and that in making special provisions for the weaker sections for higher education, the State cannot weaken standards of education or lower the efficiency of scholars to the detriment of national interests. In Balaji v. State of Mysore (AIR 1963 SC. 649), the Supreme Court held that reservation in excess of 50% of the available seats would be invalid. In the recent case of Indra Sawhney v. Union of India (AIR 1973 SC. 477) a nine-judge bench of the Supreme Court laid down the 'creamy layer' principle, according to which the economically well-off category among the backward classes are not to enjoy the benefits of reservation. This highly rationalistic and progressive approach of the Supreme Court in the matter of reservations is, undoubtedly, commendable. At the same time, one cannot overlook some of the self-projecting drawbacks and mistakes made by the highest court of the country. However, the more important question is, how far are these principles reflected in practice, in the policies of the various Government and how effective have they been. It should be noted that the Kerala Government is facing contempt of Court proceedings in the Supreme Court, for contravening the 'creamy layer rule' in one of its legislations.

Any view or opinion on reservations would be meaningless without a glance of the Mandal Commission Report which has been accepted with slight modifications. The Mandal Commission Report, among other things, advocated a reservation of 27% for the socially and educationally backward classes in government services, public sector enterprises and private sector enterprises receiving any kind of financial support from the government. Besides, promotion in jobs and admission to colleges were to be covered by reservations. However, recently the Supreme Court has rightly ruled out any reservation in promotions. The apex court "ought to be appreciated for its slow but steady movement in the right direction, for, it seems to have finally realised the need of the hour. Caste was to be the criterion to determine the backward classes. Unfortunately reservations became a political weapon in the hands of political parties to serve their vested political interests. Each of them attempted to project themselves as the champions of the backward classes and, for this, they used the mascot of Mandal. The story began, with the Janata Dal Government headed by Mr. V.P. Singh creating a political havoc over the implementation of the Mandal Commission recommendations and finally toppling itself following the widespread violence and agitation by the youth. One cannot forget the incomparable sensation created by the abortive attempt to self-immolation by Rajiv Goswami in Delhi. Following this, the Narasimha Rao Government too hardly wanted to miss the opportunity of projecting itself as the champion when it was asked by the Supreme Court to make its stand clear on the reservation issue. The decision of the new Government was to modify the V.P. Singh Government's notification by making economic criterion as the basis of the 27% reservation instead of the lone caste criterion. It was also decided to reserve 10% more jobs for the poor among the forward classes and this decision was supported by the Bharatiya Janata Party and the CPI (M). This infuriated the Janata Dal which found itself deprived of its claim of being the sole champion of the backward classes. In addition to this, with the above modification, the total percentage of jobs reserved for various groups has crossed 60%. The political motivation behind the stand taken by every political party is amply clear. Each of them is seen to be acting with its eyes on the vote bank, totally ignoring the great damage it has been doing to the cause of social justice. What they have done through their actions is that they have ignited a process of dividing society on the basis of caste, when, on the other hand, we are striving towards freeing ourselves from the caste stranglehold. Reservation has slowly emerged as a new weapon that is creating divisive forces and hence raising a threat to our national unity.

In the guise of emancipating the backward classes, the relevance of efficiency, competence and merit is being undermined. It is but natural that there would be raising disenchantment and disgruntlement amongst those not belonging to the backward classes, when they see that, while brilliant and intelligent persons are being pushed to the shadow, mediocre and incompetent persons are being chosen only because they have been born into a caste that has been categorised as backward, the only crime committed by the deprived being their birth. This is never to be mistaken for any hint that mediocricity and incompetence are typical of particular classes. Besides, there is no all-India list for backward classes and the State Government have been permitted to use their own criteria in drawing up their lists. Several States has reserved upto 70% or even more of government services for the backward classes. It would be interesting to note, that the Karnataka legislature, in a certain legislation, created several categories of backward classes like backward, more backward, most backward, less backward and so on. All that seems to prevent our policy makers from creating further categories of backward classes is probably their inability to find more words indicating degrees of comparison. One fails to recognise either the fine line of distinction between such categories or the possibility of its existence. The prospects of material advancement through job reservations have led to a competition among castes for 'backwardness'. There is many a group trying hard to bring itself under the head of backward classes so as to enjoy the benefits of job reservation. The case of the powerful Lingayats of Karnataka who had first been excluded from the State list of backward classes and had later to be accommodated is well known. Again, although the Supreme Court has laid down the 'creamy layer rule', there is a vacuum when it comes to the guidelines to determine this 'creamy layer' within a backward class, as a result of such State legislatures have been taking liberties in determining the income level of individuals who may enjoy the benefits of job reservations. Recently, the Supreme Court had to strike down a Bihar U.P. legislation for its impermissibly high income-level prescribed for the same.

The harm caused to our country and our people by this ghost of reservations does not end here. It is well-known that our education system today is being infected by a new disease, that of capitation fees. Gone are the days when one was needed to prove one's merit in securing a seat in a professional course or any other course for that matter. On the other hand, one can acquire an M.B.B.S. or Engineering degree if one has the money to pay lakhs as capitation fees. Although in theory, it has been prohibited by the Supreme Court, its continuance in practice is an open secret. The cause for this too may be traced back to the same root viz. reservations. The reason is simple. The characterization has given birth to two categories. There is one category of candidates who are not required to satisfy the stringent standards of merit. In admission to educational institutions, the qualifying score is lesser for candidates from this reserved category. One may even find a college, where all that one has to do in order to secure an admission is to prove oneself to be belonging to reserved category and then merely appearing in the entrance examination. On the other hand, candidates in the other category are required to secure amazingly high scores so as to get selected through merit in colleges. Naturally students in this category who fail to clear entrance tests will feel bitter against those who secure admission with lesser scores and they resort to paying high capitation fees, whether they can afford it or not, just to secure admission in colleges. Many others, mainly the economically well off among them prefer to go abroad for higher studies, precipitating what we call 'brain drain'. It is our own economy that suffers with the loss of its talents because of its failure to provide adequate opportunities to them within the country. The greater heights of progress to which our country could possibly be led by a proper utilisation of our human resources is beyond our imagination. With the sword of reservations on our necks, such human resources utilisation is almost an impossibility.

The basic objective behind this policy of reservations is to raise the backward classes to the level of the general community and thus to enable them to compete with them as equals. Paradoxically, instead of pulling them up to the general level, in my view, the reservation policy is only pushing them still further down. The fact that the number of selected candidates from the backward classes in the open merit list in an entrance examination is only decreasing after the reservation policy has been implemented, is ample proof of this. And, interestingly, this is the justification given by the pro-reservationist for reserving seats for backward classes in jobs and educational institution. Practically, what happens is that, when a candidate belonging to a reserved category is assured of a seat in an educational institution or a job, merely by appearing in the entrance test or by securing just a negligible minimum, by virtue of his being a member of a backward class, there is hardly any incentive for him to work harder so as prove himself to be meritorious enough to secure a place in the general merit category. Thus, in terms of competence and merit, there is stagnation, if not deterioration, as a result of the reservation policy and ultimately what suffers is the quality arid general standards of our human resources. In short, the reservation policy, is not serving, and will not serve, its purpose, but only acts as a fetter to national development.

There is little exaggeration when I say that even with respect to appointment of judges, there is a "de-facto reservation". When a Muslim judge retires from service, all efforts are made to appoint another Muslim judge. Similarly, conscious efforts are also made to ensure that atleast one judge belonging to the backward class is part of judiciary in a State. Ail these are nothing but the dirty political tactics of the party in power to build their vote banks by appearing different communities in whatever way possible. Should this be allowed? There is absolutely nothing wrong if any competent person is appointed as a judge irrespective of whether he belongs to a forward class or a backward class. However, it would be a tragedy, if we bring in the class criterion and such 'de fact reservation' even in the judiciary of the nation, which has the sacred responsibility of upholding our Constitution and ensuring justice to all its citizens, for which is required a competent and efficient army of men and women, persons of high integrity in public life and those who can do justice to the public faith in the judicial system of the country. What I suggest is an amendment of our Constitution expressly prohibiting any kind .of reservations, even any 'de facto reservation', especially in such areas of supreme importance.

This is not to be mistaken for an anti-backward classes propaganda. What is being criticised is only the means which are being adopted for the purpose of emancipation of the backward classes, as irrational, unscientific and discriminatory. Undoubtedly, there is a need to uplift those groups of people who are socially and educationally backward today due to several socio-economic and historical factors. However, it would be a crime against humanity itself, if we divide society once again on the basis of caste. They are to be given an honourable place in society not by crude methods of reservations, but by more effective alternate means by which they may equip themselves so as to be enabled to compete with the rest, by virtue of their .merit and competence alone.

A combined reading of the Directive Principle of State Policy which requires the State to strive towards a welfare State Article 38) and the fundamental duty which requires every citizen "to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement" (Article 51A (J)), warrants that we should have a system which ensures that competence and merit are never neglected, and which attempts to equip ail persons belonging to all communities, with the required merit and talent, so as to enable them to compete with the general community. This cannot be achieved through reservations, but through other more effective means of providing infrastructure facilities to all citizens, and perhaps even providing special circumstances so that the backward classes are never deprived of the same.

It is time our policy makers realised that the need of the hour is to launch vigorous social and economic schemes to get rid of the weaknesses suffered by the backward classes by setting up institutions, where massive efforts should be made to help them to raise their status. Long term measures to build infrastructures facilities like housing, electricity etc. would be more beneficial to the deprived classes. Proper social, economic and political measures would definitely achieve much more than reservations. For example, equipping a backward class family by helping the adults of the family to ensure self employment through various Government schemes, imparting education and information through social workers, providing other schemes to give them facilities of good housing, sanitation, electricity, water and other essential commodities would be much more useful and meaningful, than reserving jobs for them or seats in colleges for their children. If they are provided with such a healthy and desirable environment, the time is not far ahead before they would definitely be meritorious enough to compete with the general community. What is most important is that such a policy would serve a twin purpose. Not only will it help in the emancipation of the backward classes, but also will avoid any inconvenience or deprivation to the forward classes, which is caused by the reservation policy. The widespread bitterness, virulence and disenchantment that have infected the forward communities in our society as a result of this reservation policy can be done away with. The primary task is to take account of the needs of individuals, rather than groups. It should be remembered that merit is an attribute of individuals, not of castes. It is foolish to think that being born a Brahmin is itself a mark of merit. It is still more foolish to strengthen caste identities through reservations for equalisation of all castes, as that would do nothing but sow the seeds of disunity in society. Unfortunately our policy makers are so blessed with 'reservations', perhaps for political reasons, that they refuse to even give a thought in any alternate directions. Reservations may probably be a temporary solution to the problem of backwardness of certain groups and that too at the cost of the general interests of others and national interests. But., is it not better to teach a man how to fish, rather than give him a meal's fish? Finally, going back to the basic question involved here. Reservation - a boon or a doom? My answer to this question is clear. It is a DOOM.

Victim at the Mercy of Witnesses

(By Justice B.N. Patnaik, Judge, High Court of Kerala)

At the bottom of every dossier of criminal trial instituted by the Police, there lies the statements of the witnesses given in answer to the relevant and admissible questions put by the counsel and the Presiding Judge of the Court. No amount of rhetoric or voluminous description of facts in any document can possibily diminish the importance of the oral testimony that constitutes die solid foundation of the court's verdict.

Examination of material witnesses who are essential to the unfolding of the narrative on which the prosecution is based is an integral part of investigation. A witness could be an attestor, or a corroborator, a deponent, a testifier of some fact or circumstances, or an expert on a subject. Ss. 160 to 163 of the Code of Criminal Procedure, 1973 which deal with the power and contraints of a Police Officer to examine witnesses during the investigation precisely lay down:

1. A Police Officer making an investigation may require the attendance before himself of any person who appears to be acquainted with the facts and circumstances of the case.

2. No male person under, the age of fifteen years or woman shall be required to attend at any place other than the place in which he or she resides.

3. Such person shall be bound to answer truly all questions relating to such case other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

4. The statement shall not be used for any purpose except to contradict him if called as the prosecution witness.

5. The statement shall not be signed by the person making it.

6. No Police Officer shall offer or make any inducement, threat or promise to a person in the course of any investigation.

In Smt. Nandini Satpathy v. P.L. Dani (AIR 1978 SC 1025) it is pointed out that-

"If there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, tiring interrogative prolixity, intimidating methods but sufficiently substantial, applied by the police-man for obtaining information becomes 'compelled testimony".

Section 179 of the IPC is one of the provisions to enforce compliance when a public servant legally demands truthful answer but is met with blank refusal or plain mendacity. But where there is no wilful refusal but only unwilling omission or innocent warding off, the offence is not made out.

Sections 3,4 and 8 of the Oaths Act, 1969 lay down inter alia that all courts having authority to receive evidence have power to administer oaths and affirmation to the witnesses; Oath or affirmation shall be made by all witnesses, who are required to give evidence before any court except a child under twelve years of age; and that every person giving evidence shall be bound to state the truth on the subject.

Sections 118 and 119 of the Indian Evidence Act, 1872 state that ail persons shall be competent to testify unless they are incapable of understanding the questions and giving rational answers owing to tender years, extreme old age and disease. A dumb witness may give his evidence in the manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in the open court.

Section 191 of the Indian Penal Code, 1860 contemplates punishment for giving prevaricating and false evidence in a court. Merely because a person makes two contradictory statements, one of which must be false, it does not make out a case of perjury unless the falsity of one of the two statements is positively proved to be so.

The credibility of the witnesses is decided by ascertaining, first, whether they have the means of gaining correct information; secondly, whether they have any interest in concealing truth; thirdly, whether they agree in their testimony. The first two of these tests are applicable to the witnesses individually, the third to the whole of the testimony together.

In order to secure the conviction of the accused, the prosecution should examine such witnesses who satisfy the above tests of being trustworthy persons. Victim is an interested witness and his testimony needs corroboration from independent source. Marshalling of evidence and collating the same are the functions of the Prosecutor and the Judge. But in a large number of cases the witnesses while being examined in the court turn hostile to the prosecution. A feeble minded witness is won over by the accused either by the offer of money or by acts of intimidation. On their own volition a relative of an accused may resile out of natural love and affection and an employee out of a sense of gratitude. (State v. Sanjay - AIR 1978 SC 961). The merit of a criminal case hinges mainly on the reliability of the oral testimony of the material witnesses. If they fail to support the prosecution, the culprit goes scot free.

Witnesses take oath to speak the truth for one of two reasons: they either love God or fear punishment. When both these break down, the result is a situation that breeds perjury, distortion of facts, erroneous view point and perverse judgment. The unfortunate victim receives the reward of ridicule from the offender and finally suffers in silence.

Victim's Plight

(By: Justice B.N. Patnaik, Judge, High Court of Kerala)

"Revenge" is the word that constantly reverberates in the mind of a victim of crime of violence immediately after being injured until the offender is suitably punished. If the offender escapes the punishment, the disgruntled victim suffers from mental depression and meloncholia. When the criminal goes unpunished, the criminals are encouraged and the society suffers. The victim or his kith and kin become frustrated and contempt for law develops. If the victim, however, manages to muster enough strength by some means later, there ensues a reaction in the form of internecine gang conflicts, remoreseless cruel behaviour and attempt to violate law to have the cynical satisfaction of retaliation.

Offences of murder, dowry death, grevious hurt and rape (Sections 299,300,304B, 320 and 375 of the Indian Penal Code, 1860) are some of the worst crimes of violence, that generate the intense desire in a victim to avenge the wrong doer. The outcome of all these crimes is torture to the victim invariably. "Torture of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering... .Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is desire to kill and destory including yourself." (Shri D.K. Basu v. State of West Bengal - JT1997 (1) SC 1). The aftermath of such crimes could be, (1) the dependents of the deceased being driven to a state of penury and destitution; (2) life-long mental agony of the parents and other near and dear ones of the victim of dowry death for no fault of theirs; (3) permanent or partial disability resulting in the loss of earning capacity of the victim of grievious hurt; and (4) remote chance of a victim of rape to lead a happy marital life owing to neurotic trauma and social stigma. The repressed emotion of wealth on account of the unfulfilled wish for retribution needs sublimation. This can be achieved either by leading a saintly life or by exacting due compensation and reparation.

In D.K. Basu's case, the Supreme Court found that there is ample justification in the award of compensation to a victim of custodial violence and death in the context of the fundamental rights guaranteed to a citizen under Articles 20(3), 21 and 22(2) of the Constitution of India. It said :

"In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law."

"There is no wrong without a remedy (UBI JUS IBI REMEDIUM). The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.

Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

It is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts, In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds."

The Supreme Court in Stare of Madhya Pradesh v. Shyamsunder Trivedi (JT1995 (4) SC 445) suggested :

"The Courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that so far as possible within their powers, the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the Majesty of Law has prevailed."

Do the other victims of crime of violence not deserve similar humane treatment? The answer perhaps is in the affirmative.

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Jottings

Some facts are of such common knowledge that they do not have to be proved. When they are such, it is said that the court will take judicial notice of them. The leading decision on the doctrine of judicial notice was rendered by Chief Justice White of the United States of America many years ago and came about in a somewhat unusual manner. It appeared that the Justices, in conferring or talking about the cases among themselves, had a habit of drinking mint juleps. Their custom became known to the good people of Washington Town, and a protest arose as to the propriety of the existing situation. Whereupon the Chief Justice told his brotheren that thereafter there would be no sipping of mint juleps except when it was raining. The following day at Conference, the Justices, appeared in a very glum attitude, and the Chief Justice requested that they disperse themselves to the various parts of the building and report concerning the condition of the weather. This was done, tfie Justices reporting that much to their regret, there was not a cloud in sight. Thereupon the Chief Justice, delivered himself of the following opinion :

'This is the Supreme Court of the United States of America. It has jurisdiction from ocean to ocean and from lakes to Gulf and also of the Islands of the sea and over. So broad an expense of territory the court must take judicial notice of the fact that it's raining somewhere in the United States today."

Uncertainties of the Law

Client        "'Now what do you think? Have I a case, and can you win it for me?"

Lawyer :"Ibelieveyouhaveacaseallrightandlcan winit, barring the uncertainties of the law."

Client        'What do you mean by uncertainties of law?"

Lawyer : "Well, I can best explain by citing my own experience. A few years ago my wife sued me for divorce on a charge of impotency. At the same time our maid sued me on a paternity charge. They both won".

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Tailpiece

Judge (To Counsel): You may go an addressing me for hours and hours. I am telling you point blank. I will hear it with one ear and it will go out of the other.

Embarrased Counsel: Your honour is right. There is nothing to prevent in between.