Environmental Law, Dharma and

Judicial Silence in a 'Secular' Democracy

(Jorg G. Weber (M.A. Soas, London)

Modern Indian environmental jurisprudence represents today a unique and powerful part of the country's highly praised social action litigation. Lawyers and academics are not getting tired of proclaiming the achievements of a new public law rationale which has drifted away from British criminal law strategies and private property principles towards a new legal order focusing on public interest. These same people, however, find difficult to admit that what they vaguely describe as "native instinct" (Dhavan 1992), or traditional factors, are in reality nothing else than the continuing influence of dharmic concepts on society in general, and on the process of Indian law-making in particular.

Since Krishna Iyer's observation, nearly two decades ago, that "dharma is a polemical issue on which judicial silence is the golden rule" (Dhavan 1977, P. 520) the situation has remained basically unchanged. In India, it remains politically incorrect to understand ancient Hindu concepts as a driving force in certain areas of modern litigation. The careful observer may now ask: what do modern environmental laws in India have in common with an antique cultural concept?

Within the last two decades, environmental jurisprudence in India has been developing in a direction significantly different from that of other law systems. While most Western countries continue to rely on a regulatory law paradigm dominated by proprietary interest and economic rationalisation, the modern Indian judiciary relegates individualism, materialism and the desire to dominate nature in a subordinate place. Two factors link to play central role in this multi-level approach to protecting the natural environment while improving the quality of life.

Environmental justice is a sub-category within secular, modern Indian constitutional law and has become a relevant section of public interest litigation. It builts on a new public law rationale which intentionally emphasises the interplay between an individual's duty towards the public at large and the duty of a public authority towards society. This new public law regime reactivates and redefines concepts of nature and applies these along the lines of public interest litigation.

Until recently the role of cultural and spiritual heritage in environmental protection was ignored or actually rejected by official bodies in India. O.P. Dwivedi makes this point when he describes secular India as having a "fear that bringing religion into the environmental movement will threaten objectivity, scientific investigation, professionalism or democratic values...." (Dwivedi, 1993). Nevertheless, recent environmental cases indicate this is not strictly the case.

In the judgment of one of the famous M.C. Mehta cases, the Supreme Court observes:

"... .Our ancestors had known that nature was not subduable and, therefore had made it an obligation for man to surrender to nature and live in tune with it (M.C. Mehta 1992/1, SCC 358)

Are these merely hollow words or are judges timidly looking to ancient Indian concepts of nature and universal order for authority, without mentioning the sources?

A closer look at the vast Sanskrit literature available on the subject makes clear what the Supreme Court Judges meant by living "in tune" with nature. Sanskrit scriptures emphasize repeatedly the intimate relation between human beings and objects of nature. We often find mankind calling-prithvi (earth) as mata (mother),[1]in this way indicating that they are themselves relative to or part of the nature rather than a species which has been given special concession or mastery over other natural elements. According to ancient Sanskrit sources, one form of life promites the welfare of another form of life without consuming it or damaging it. The human is seen as a part of a wider cosmic order, which attracts irreversible responsibility on the individual. Dwivedi, a well known modern Indian ecologist, comes to the conclusion that

"...ancient, Indian environmental ethics shows that man was instructed to maintain harmony with nature and to show reverence for the presence of divinity in nature". (Dwivedi 1987, P. 89)

The above mentioned quotation from the M.C. Mehta judgment indicates very nicely that modern lawyers are well aware of traditional, philosophical ideologies concerning man's role on earth, and further, that they are willing to apply these ideas to modern environmental litigation. However, it remains a sacrilege to express these views directly and openly, and so the reference provided in M.C. Mehta represents a rare example of judicial frankness.

It seems that there are no limits to Indian Judges' inventive genius in order to avoid putative delicate references to ancient Indian philosophical literature.

In Shri. Sachidanand Pandey (AIR 1987 SC 1109), the well known Supreme Court Justice Chinnappa Reddy quoted extensively the famous words of a North American Indian Chief, in order to demonstrate the holistic ideology which Indian courts adopted to determine man's place in the macrocosmic order of natural environment. The similarities between the North American Indian leader's lecture about the limits of human control over the world, and ancient South Asian models developed around the same matters are striking. But why, then, do lawyers in India feel compelled to be evasive and borrow the philosophical framework from an ethnic group living more than twelve thousand miles away, when their own cultural heritage could provide them with sufficient ideological background?

It is not often acknowledged that Indian courts actually apply modern law within the guidelines of an ancient body of thought. A closer examination to environmental judgments makes this quite obvious.

In this fast growing chapter of social action litigation, judges have adopted the tough and uncompromising point of view that the preservation of natural resources and protection of the environment plays a more important role than commercial interests or economic development. The Indian judiciary does not even shy away from colliding with the business interests of factory owners and closing their production centers down, if necessary, a prospect that would horrify many western industry bosses. By putting the constitutional right to life higher than the right to work, Indian Judges take a position inconceivable in a similar discussion in the European political and economical context.

In Madhavi v. Thilakan (Crl. LJ 1989, 499) the learned Judge held: "To say that a workshop or factory should not be closed down, as it provides livelihood to some persons unmindful of the consequences of others, would be to say the untenable".

A number of other cases similarly indicate that Indian Judges continue to reinforce traditional values about the relationship of nature and man in modern environmental jurisprudence, over business and market-oriented interests. Whether the Supreme Court orders to close a polluting factory (M.C. Mehta III, 1987 SCC 463) or a High Court prohibits the Government from constructing houses on a piece of land previously allocated for a recreational park (T. Damodhar AIR 1987 SCC 674); the tendency away from the dictates of a common law doctrine of absolute ownership and unlimited right of disposal of private spaces, and towards an understanding of nature as a part of an universal order which forces the individual to be concerned about his environment can be clearly inferred. The result of this is that in environmental litigation, Indian Judges do not rely solely on a western concept of external sanctions, but instead focus in a persuasive and pedagogic manner on the educational aspect of the law which aims at reinforcing environmental consciousness. In this way the Courts include the individual in a system where every single person has a duty to protect natural resources and to care consciously about the well-being of his environment. In D.D. Vyas (AIR 1993 All. 57) the Allahabad High Court held:

"The last clause (j) of Art.51-A of the Constitution further mandates that it shall be the duty of every citizen of India 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".

This interesting interpretation of Art.51-A(j) of the Indian Constitution makes it clear that judges do not see society as a mass of ignorant and irresponsible people who have to be kept within reasonable limits by the means of strict control and punishment by the State. Rather, they are individuals who can very well contribute to the well being of the community as a whole. Besides that, Courts appear to recognise that justice begins with the approval of one's own conscience and not in front of a bench.

But when judges appeal to the "duty of the citizens not only to protect but also to improve the environment" (Kinki Devi AIR 1988 HP 4) in environmental litigation, do they just "talk big" to please western readers of Indian law reports and to demonstrate their eloquence? Or are western observers simply not wanting to admit what Indian lawyers are similarly wary speaking out about openly, namely that these recurring references to individual conscience and duty are nothing less than references to the welt known concept of dharma?

A closer look at the secondary literature shows the insecurity prevalent even among Indologists when it comes to defining dharma as a complex ordering network in a historical context. Both dharma and sometimes artha. have been translated as "law" as if it can be represented as a European-style system of law consisting of written rules of conduct known to everybody and being enforced by the State. Rather than in this way, sometimes it is seen as a more or less abstract, separate term in the respective textual context. But dharma is neither the Sanskrit word for law nor does any textual statement about dharma have absolute value. Dharma as a concept (as well as for example vyavahara) includes "law", but its meaning goes far beyond just that. As an established component of the Hindu world view it is a concept with meaning for everybody which has for its all-embracing characteristics to be illuminated by the light of a conceptional general framework. Menski describes dharma as

"comprising all levels of existence, from the macrocosmic to the microcosmic. But thus placing the Hindu individual into a complex network of cosmic interrelationships, any human activity, including inaction becomes perceived as to have potentially wide reaching consequences". (Menski, 1996).

The continuous overemphasis on passages like Manusmrti 2.6 (see Lingat 1973) makes clear why Indologists and lawyers have lingering problems seeing dharma as relevant for modern Indian environmental litigation. Is it really realistic to assume that an individual consults vedic texts before activating his conscience? It is perhaps more logical to turn the sequence 'sruti-smrti-sadacara-atmanastusti upside down and to ask for the sources of dharma beginning with atmanastusti (See Menski 1996).

It is really a distortion of reality to portray ancient Indian texts as having more authority and relevance for the average Hindu than the examination of one's conscience. Observation of daily life indicates that still today atmanastusti remains primary, leaving relatively little room for "book law".

To return to Indian environmental cases and judges' appeal to the duty of citizen to protect and improve the environment, it seems to be more than coincidental that modern jurisdiction shows that a genuine effort to convince the individual of its important role as upholder of law. One might see this simply as a kind of civic education, but a closer look shows that judges try in reality to reestablish principles of dharmic world view at grass root level. Indian courts seem to have recognised, much faster than most Indologists, that the osmosis between understanding law as part of an all-embracing order beginning with atmanastusti and its application in a modern jurisdiction at the same time relying on indigenous concepts of nature as a part of cosmic interrelationships, might on the long run be much more successful than Western legal systems' philosoplhy of positive law.

Why then this timid paraphrasing about the complete change in India's jurisprudential perspective, limiting it to a mere product of secular, modern society, when reality clearly shows that religion remains a dominant factor in the whole continent, influencing domestic affairs, as well as big politics? Either Indologists do not want to hear that the examination of individual conscience is relevant to the genesis of Indian concepts of law, or lawyers and academics know how to keep quiet. The careful observer should, however, prick up his ears, when a prominent legal expert points out that:

"the question concerning environmental problems is not how best to punish someone, but how to manage the society in the best way so that maximal development is attained with nil or minimal environmental underdevelopment........" (Singh 1986)

Here Singh argues resolutions in environmental law should not be sought by means of polarising the state as regulator and the citizen as users against each other. By showing the ruler or State, as part of a comprehensive network of mutual interdependences he gives us another interesting indication for the dharmic orientation of modern India environmental litigation. When dharma is described as an all embracing system of cosmic interrelationships, which has meaning for everybody, then the governing body must logically be included in it.

A look at the Sanskrit scriptures makes it clear that the raja (king) in ancient India occupied an elevated position in society, but actually had no mechanisms to enforce his own law. His role was to act as a kind of supervisor or guardian of what his people perceived to their law. The ideal ruler, as described for instance in the Ramayana, was primarily, like everybody else, subjected to atmanastusti.[2]

Out of this experience, he was then in a position to enable his people to follow their own individual dharma and to remain thereby within the ambit of dharma in its universal conception. In this way the raja acted as a, good example of model behavior (Sadacara). as well as "public agent" (Menski 1996). He also might intervene by means of harash punishment, when self control proves ineffective.

Modern Indian Courts appear to be taking up the notion of the ruler as supervisor and upholder of dharma. In Rural Litigation (AIR 1988 SC 2187) the Judges held:

"The Court expects the Union of India to balance these two aspects and place on record its stand not as a party to the litigation but as a protector of the environment in discharge of its statutory and social obligation for the purpose of consideration of the court by way of assisting the court in disposing the manner in issue".

In this case, the Supreme Court very clearly extended its persuasive and pedagogic ambitions on to the State Government of Uttar Pradesh, a public authority, reminding it about its duties towards society. Judiciary in this context not only controls state power, as it does in Western countries, but goes further to point out that the legislature should realise its role as a model as integral part of a balanced society.

In environmental litigation - but not solely in this area - Indian Judges take the initiative and use their power to remind the State of its dharma and to not limit themselves to executive functions. This concern is seen as a priority when the Bombay High Court notes that

"........Such directions.........are issued so as to compel the statutory bodies including the state to stand by the citizens and do their public laws duty so that the purposes of public expressly enacted are not frustrated...." (Kinkri Devi, AIR 1986 Bom.136) "

To sum up, it can be said that judicial activism in Indian environmental litigation is not only an attempt to control damages caused by economic growth and industrialization, but to reawake a sort of society which places the individual as well as public authorities inside a balanced universal network of dependencies and duties.

Most observers overlook the fact that awareness of ancient concepts of regulating society and indigenous models for protecting nature in a wider sense have been put to productive use in the development of a modern regime of environmental regulation in India. On the one head, Indologists demonstrate once again that they have not learned anything since Buhler's days and are still more interested in Sanskrit text-oriented hairsplitting than in recognising social realities and the role of the individual in ancient Indian "law systems." On the other hand, India's self-declared Western orientated elite conceals the impact of indigenous alternatives on environmental jurisprudence, because they seem to be afraid of dharma oriented society where also the establishment would have to subordinate business and consumer interests to public welfare.

While Indologists' mis- and over interpretations of Sanskrit texts can be regarded as a mere unpleasant part of the discussion, the opposition of sectors of the Indian upper middle class to the power of courts in public interest litigation, and therefore, also in environmental cases, should be reason enough to raise alarm.

The present Government's move to reign in PIL runs not just counter to so called democratic precepts, but could deprive a major part of India's vast population of its right to claim a clean environment.

Once can only hope that the path adopted by the Supreme Court will continue to be taken in the future. To reply on ancient concepts about nature and society in modern Indian environmental jurisprudence does not mean to be reactionary or misogynist, but to avoid errors that were made during the "developing process" of Western countries. Indian courts have realised that the reawakening of self control as a first instance mechanism at all levels of the society could prevent mankind of destroying his habitat of selfish interests.

___________________________________________________________________

Foot Notes:

1. See Mahabharata, Moksadharmaparva 184,29.

2. See Kinsley 1982, p.27.

BIBLIOGRAPHY

Abraham, C.M. (1991): "The Indian Judiciary and the development of environmental law". In: Vol. II No.1 South Asia Research, pp 61-70.

Abraham, CM. (1995): Environmental justice in India. London: SOAS, PhD Thesis.

Battacharya, D.K. (1990): Ecology and social formation in ancient history. Calcutta: K.P. Bagchi.

Calicot, J. Baird (1991): Nature in Asian traditions Of thought: Essays in environmental philosophy. New Delhi.

Chiba, Masaji (1986): Asian indigenous law in interaction with received law. London, KPI.

Dhavan, Rajeev (1977): The Supreme Court of India: a socio legal critique of its juristic exploration. Bombay.

Dhavan, Rajeev (1992): "Dharmasastra and modern Indian Society: a preliminary exploration" In: Vol.34, Journal of the Indian Law Institute.

Diwan, Paras (ed.) (1987): Environmental protection: Problems, policy, administration, law. New Delhi: Deep & Deep.

Dwivedi, O.P. (1993): "Global Dharma to the environment" In: Vol.39, The Indian Journal of Public Administration, p.566-576.

Jha, V.N. (ed.) (1991): Proceedings of the National Seminar or Environmental Awareness Reflected in Sanskrit Literature. Poona.

Kinsley, David R. (1982): Hinduism: A cultural perspective. New Jersey.

Lingat, Robert (1973): The classical law of India. Berkeley University Press.

Singh, Chhatrapati (1986): Law from anarchy to Utopia. New Delhi.

Singh, Chhatrapati (1990): "Dharmasastra & contemporary jurisprudence" In: Journal of the Indian Law Justice, pp 179-188.

Purohit S.H. (1994): Ancient Indian Legal Philosophy. New Delhi: Deep & Deep.

Ignorance of Law Does not Excuse, But Suppression Does - A Comment on 1995 (2) KLT 443

(V. Philip Mathews, Advocate, High Court of Kerala)

The Net of Law

                                                                                                     - James Jefferey Roche

              "The net of law is spread so wide

              No sinner from its sweep may hide

              Its meshes are so fine and strong

              They take in every child of wrong

              O Wondrous Web of mystery!

              Big fish alone escape from thee!"

Ignorance of law is not an excuse howsoever poor and illiterate you are, but suppression of law may excuse, if you are rich and literate. Even a most salutory provision in the Criminal Procedure Code Section 357(3) - intended to provide succour to the victims can provide succour to the accused and permit him to walk happily out of the bars. A few coins in hand thus proves better then stray principles behind the bush. The decision reported in 1995 (2) KLT 443 where the Hon'ble High Court modified the sentence of the accused convicted u/Ss.307 and 447 IPC by levying a fine of Rs.1 lakh and invoking Section 357(3) of Cr. P.C. is against the clear provisions of law contained in Section 307 IPC and 320 and 482 of the Cr. P.C. Though the intention of the High Court is laudable, the net effect of it is difficult to be appreciated. It is respectfully submitted that the decision is a step backward in our criminal justice system.

"Section 357(3) Cr. P.C. is an important provision but courts have rarely invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgments of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of the accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition there to" - Harikishan & State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127. The Supreme Court has invoked this provision in many cases - Balraj v. State of U.P. (1994) 4 SCC 29, Dr. Jacob George v. State of Kerala (1994) 3 SCC 430, Harisingh v. Sukhbir Singh 1988 SCC (Cri.) 984, Sarwas Singh v. State of Punjab, AIR 1978 SC 1525 etc. In all the above cases the compensation awarded to -the victim was in addition to the punishment to the accused. They were not a device to reduce punishment or to compound the offence. However there are instances where Supreme Court has compounded non-compoundable offences. In Mahesh v. State, AIR 1988 SC 2111 the Supreme Court compounded an offence u/S.307 IPC. (See also (1991) 4 SCC 584). Some of the High Courts have resorted to Section 482 Cr. P.C. when Section 320 Cr. P.C. bars compounding. Thus in Thathapadi v. State, 1991 Cri. L.J. 749 the Andhra Pradesh High Court compounded an offence punishable u/S.489A IPC : "Keeping in view the larger interest of parties and to secure and of justice." This was followed in 1992 Cri. L.J. 273 (Raj.) and 1992 Cri. L.J. 2106 (Bom.).

Resort to inherent powers u/S.482 Cr. P.C. when S.320 or any other particular provision bars an act is contrary to law and achieving something by suppressing law. Section 482 Cr. P.C. is not to be invoked in respect of any matter covered by the specific provisions of Cr. P.C. and if its exercise would be inconsistent with any the specific provisions of the Code 1958 (SCR) 1226; AIR 1967 SC 286; AIR 1979 SC 87; AIR 1960 SC 866; AIR 1977 SC 1323.

It is respectfully submitted that the decision reported in 1995 (2) KLT 443 does not lay down the correct law. Section 307 IPC says  "...............shall be punished with imprisonment...............shall also be liable to fine................." 307 IPC is not compoundable u/s 320 Cr. P.C. 482 Cr. P.C. cannot be invoked to support the decision since there are cleat provisions of law. When I say this I am conscious of the fact that judges do and must legislate "but they could do so only interstitially, they are confined from molar to molecular Motions." - Southern Pacific Co. v. Jensen (1917) 244. US 205 at 222, Per Holmes, J. (Referred to in AIR 1995 A.P. 274 at 285). When the sovereigns of our souls allow suppression of law, soul of the nation fallens, flounders and nearly founders. Only an outright optimist or one gifted with self deception would believe that this ruling would not be misused (or even abused) in future. The decision is against all theories of punishment. It has no element of retribution, prevention, deterrence or reformation. The decision also create two classes of accused - those who can afford a heavy compensation/fine and those who cannot. Whereas the former is set free, the latter is put behind bars. This amounts to discrimination and .rating equals unequally. A judicial decision or order which violates Fundamental rights is void, even though it will be binding on the parties, so long as it is not set aside in appropriate proceedings - AIR 1974 SC 1471, AIR 1988 SC 1531. Though remedy under Article 32 is not available where the offending court is the Supreme Court itself, the court in exercise of its inherent jurisdiction would review and set aside a previous direction given by the court which offended against a fundamental right.

Now the Hon'ble High Court itself has come forward in Shibu v. State of Kerala, 1995 (2) KLT 912 to undo the wrong committed in Joshi v. Slate of Kerala, 1995 (2) KLT 443. In this later decision the High Court has taken note of the fact that sentence of imprisonment for the offence under Sec. 3071.P.C. is mandatory. It was held that 357 Cr. P.C. cannot be invoked in derogation of or In substitution of mandatory jail sentence provided in 307 IPC. The decision reported in 1995 (2) K.L.T. 443 has been partly overruled.

Legal Significance of Public Purpose

(By K.S. Raju, Principal Sub Judge, Kozhikode)

It is quite fashionable to link any matter with public purpose. In common conversations, the term is liberally used by politicians, lawyers, social workers and litigants. But the jurisprudential significance of the tennis irrefragable. The expression public purpose in Art. 31(2) of the Constitution is of very wide import and has to be construed in the light of the Directive Principles of State Policy. Under Art. 39(a) and (b) it is the duty of the State to direct its policy towards securing that the ownership and control of material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment. In State of Bihar v. Kameswar Singh AIR 1952 SC 259 Mahajan J. observed:

'The expression public purpose is not capable of precise definition and has no rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society mid its needs".

Das J. observed:

"We must regard as public purpose all that will be calculated to promote the welfare of the people as envisaged in the Directive Principles of State Policy whatever else that expression may mean".

The concept of public purpose was enunciated and discussed in extenso in the leading case Munn v. Illinois 94 US 113 L-Ed 77 (1877) under the American Constitutional Law. The doctrine declared is that property becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large and from such clothing the right of the Legislature is deduced to control the use of the property and to determine the compensation which the owner may receive for it. Field J. observed as follows:

"The declaration of the Constitution 1870, that private buildings used for public purposes shall be deemed public institutions, does not make them so. The receipt and storage of grain in a building erected by private means for that purpose does not constitute the building a public warehouse. There is no magic in the language though used in a constitutional convention, which can change a private business into a public one or alter the character of the building in which the business is transacted, and it was a strange notion that by calling them so they would be brought under legislative control".

Under the American Constitution the power to acquire private property for public purpose is called Eminent domain. The purposes for which the right of appropriation may be exercised must be determined by the needs of the Governemnf and must be declared by law. No Government can under any circumstance divert one citizen of his estate for the benefit of another, if in no way the public interest is involved. It is nor indispensably necessary that it be made for the State or the Nation itself. What is necessary is that the appropriation must be made for some public use.

In India, Kameswar Singh case (supra), the Bihar Land Reforms Act, 1950 was impugned at first on the ground of colourable exercise of power and when the Constitution First Amendment Act 1951 was passed, this ground disappeared. Then it was contended that the Act was not enacted for a public purpose. The Court held that the requirement of public purpose was involved in the very concept of acquisition. Mahajan, J. reiterated that the Bihar Land Reforms Act, 1950 intended to bring about a reform in the arena of land distribution system of Bihar for the general benefit of the community and hence, Act was passed for a public purpose.

The vague phrase 'public-purpose' cannot be defined better than in the words of Mr. Justice Batchelor which has become the Locus-Classicus on the subject. In Hamabai v. Secretary of State 1911 BLR 1097 it was held that the phrase public purpose whatever else it may mean must include a purpose, that is an object or aim in which the general interest of the community as opposed to the particular interest of individuals is directly and virtually concerned. In Haidaibax Razyi v. State of Gujarat AIR 1971 Guj. 158 at 160 the view taken is that the basic concept underlying the expression public purpose is general interest of the community. But in Alagappa Chettiar v. Revenue Divisional Officer AIR 1969 Mad. 183 at 186 it was held that the expression public purpose may include a purpose in which the general interest of the community as opposed to the particular interest of the individuals, is directly and virtually concerned. This decision was based on the dictum in Somawanti v. State of Punjab & Ors. AIR 1963 SC 151 wherein Madholkar, J. observed as follows:

"The term 'public purpose' is an inclusive and not a compendious one and therefore, does not assist us very much in ascertaining the ambit of the expression "public purpose'. Broadly speaking the expression public purpose would however include a purpose in which the general interest of the community as opposed to the particular interest of the individuals is directly and virtually concerned".

Before the 44th Amendment of the Constitution, it was a violation of the fundamental right, if the land had not been acquired for a public purpose. The 44th Amendment removed tire right to property from the Chapter on Fundamental Rights (It is to be noted that the 44th amendment was without eliciting public opinion and without scrutiny by the Select Committee). After deleting Arts. 19(1)(f) and 31, the property right was inserted in Part XII Chap. TV (Art. 300 A - No person shall be deprived of his property save by authority of law). After the 44th Amendment, the first question which arose for consideration was whether the property amendment would violate the basic structure enunciated in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.

In a catena of decisions namely Indira Nehru Gandhi v. Raj Narain - AIR 1975 SC 2299, Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, Waman Rao v. Union of India AIR 1981 SC 271, the doctrine of basic structure was upheld. It was also held that Art.19(1)(f) and Art.31(2) were mutually exclusive. Formerly Entry 36 in List I dealt with acquisition or requisitioning of property for the public purpose of the Union. Entry 36 List II dealt with acquisition or requisitioning of property, except for the purposes of the Union subject to the provisions of Entry 42 of List III and Entry 42 List III dealt with principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other public purpose is to be determined and given. These entries were deleted by the 7th Amendment which came into force from 1.11.1956 and new Entry 42 was substituted in List III - Acquisition and Requisitioning of property. Thus, it can be seen that public purpose is the touchstone of both acquisition and requisitioning of property.

The scope and ambit of public purpose cannot be put in water tight compartments. When public purpose is to be seemed through private agency then there is nothing to prevent the government from acquiring it and direct (he private agency to pay the compensation. If the Legislature by a statute declares a particular purpose to be a public purpose, men out of respect of the Legislature, the courts of law may accept it. In acquisition cases, what is the public purpose has to be decided by the Government and the courts of law have no say in this matter.

In Ram Narain Singh & Ors. v. The State of Bihar and Ors. AIR 1978 Pat. 136 relying on the rule in AIR 1963 SC 151 it was held that even though the acquisition of land is for a private concern whose sole aim may be to make profit, if the intended acquisition of land could materially help the national economy or the promotion of public health or the furtherance of the general welfare of the community or something of the like, the acquisition will be deemed to be for a public purpose. In Forane Church v. State of Kerala & Ors. AIR 1971 Ker. 143 the view taken was that if the individuals are benefitted not as individuals but in furtherance of a scheme of public utility, the purpose is a public purpose.

In State of Bombay v. All Gulshan 1955 Bom. 810 the dictum is that acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a public purpose, though it will not be strictly be a State or Union purpose.

In the State of Kerala the past and prospective (rends in the concept of public purpose was discussed in extenso in Mohammed Noohu v. State of Kerala 1952 KLT 498. The observations run as follows:

"There was the older and stricter view that unless the property acquired was dedicated for the use of the public at large or a considerable section thereof, it would be a public use (Vide Nichols in Eminent Domain 1950 Vol. Ill P. 430). But the modern and more liberal view is that it is not an essential condition of public use that the property should be transferred to public ownership or for public uses and that it would be sufficient if the public desires advantage from the scheme. According to the latter view it is no objection to the validity of an acquisition that it is in favour of a private corporation or of individual provided the acquisition results in public advantage. Thus, the acquisition of land to meet the requirement of the school for a larger site area in view of its expanding activities to meet the growing educational needs of the locality was for a public purpose.

In Khandelwal v. U.P. AIR 1955 All. 12, it was held that in India the concept of public purpose is understood as a purpose useful to the public rather than a purpose used by the public. The rationes of the decisions reported in State of Bihar v. Kameswar Singh AIR 1952SC 252, Surya Pal Singh v. State of U.P. 1952 SCR 1056. Thambiran Padayachi v. State of Madras AIR 1952 Mad. 756, State of Bombay v. Bhanji Munji 1955 SLR 777, Moosa v. State of Kerala AIR 1960 Ker. 355 and Safi v. State of West Bengal AIR 1951 Cal. 97 are to the effect that Laws carrying out general scheme of social reform are for public purpose.

The dominant question which arises for consideration is whether the power of the State to decide public purpose can be so rigid so as to exclude judicial review. In Renjith Thakur v. Union of India AIR 1987 SC 2386, the Court observed:

"The doctrine of proportionality as part of the concept of judicial review would ensure that even on an aspect, which is the exclusive province of the Court Martial ...irrationality and perversity are recognised grounds of judicial review".

It cannot be refuted that the scope of judicial review is very wide, The three grounds justifying judicial review are illegality, irrationality and procedural irregularity. The Hon 'ble High Court of Kerala in Ramoo Ammal & Ors. v. State of Kerala & On. 1991 (1) KLJ 740 held that irrationality in public purpose is a ground for judicial review. So, it cannot be found that the power to decide public purpose by the State is an unfettered one.

In acquisition cases, in order to ascertain public purpose the proper approach is to take the scheme as a whole and then examine whether the entire scheme of acquisition is for a public purpose. In each case, all the facts and circumstances require to be closely examined in order to determine whether there is a public purpose. In each case, what is to be determined is whether the acquisition is in the general interest of the community as distinguished from the private interests of an individual. In State of Karnataka v. Renganatha Reddy AIR 1978 SC 215, the Supreme Court observed:

"The intention of the Legislature has to be gathered mainly from the statement of objects and reasons of the Act and its Preamble, The matter has to be examined with reference to the various provisions of the Act, its content and set up, the purpose of acquisition has to be called out therefrom and then it has to be judged whether it is for a public purpose within the meaning of Art. 31(2) and die Law providing for such acquisition".

The terms public purpose and public interst are rather confounding. Prima facie both terms look synonymous. In M/s. J. Mahopatra & Co. v. State of Orissa AIR 1984 SC 1572 it was held that in the case of public interest litigations it is not necessary that the petitioner should himself have a personal interest in the matter. In Bandhua Mukil Morcha v. Union of India AIR 1984 SC 802 at 811 the Hon'ble Supreme Court held that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community. So it can be seen that the term public purpose is based on the principle of public utility or usefulness but public interest in public interest litigations is based on the principle of dispensation of justice to the weaker or vulnerable section of the community.

More recently in Laxman Rao Bapurao Jadhava & Anr. v. State of Maharashtra & Ors. AIR 1997 SC 334 a Division Bench consisting of Their Lordships K. Ramaswamy & G.B. Pattanaik JJ. took the view that acquisition cannot be quashed on the ground that the authorised officer has not satisfied himself that land was needed for a public purpose. On a consideration and contemplation of the above dictum, I come to the conclusion that public purpose is a part and parcel of sovereignty and therefore, the State can acquire private property even without a public purpose.

In Defence of Lawyer Notice

Notice of demand under Section 138(b) of the Negotiable Instruments Act

given by Advocate is valid - Reply to the Journal 1997 (2) KLT- 28 to 30

(By S.K. Tampi, Advocate, Tripunithura)

The doubt and technical lacunae pointed out by Advocate Joseph Thattacherry, Changanacherry regarding the validity of notice served by Advocate on behalf of payee or holder in due course is not to be taken as a mandatory in law of notices. The argument advanced is that the omission of word anybody or on his behalf is a serious omission itself. With due respect to his view it can be opined it is not so. The omission has not defeated intention of the legislature in amending the Negotiable Instruments Act 1881 with insertion of Chapter XVII in the said Act. No doubt that notice is mandatory when there is dishonour of cheques due to insufficiency of funds or other reason mentioned in the Cheque Returned Memo, as provided in S.138(c) read along with S.142(b) of the Act, where as in Chapter VII of the Negotiable Instruments Act S.94 it is specifically stated that, notice of dishonour may be in oral or written be sent by post and may be in any form; but it must only inform the party to whom it is given either in express terms and reasonable intendment that the instrument is dishonoured. Therefore the intention of the legislature though not made clear in S.138 (c) and 142 (b) the word reasonable intendment is deliberately inserted by legislature in S.94 of the Negotiable Instruments Act to say that notice may be in any form and therefore subsequent omission of anybody or on his behalf had not defeated the purpose of legislature and it is not mandatory to do otherwise.

And in 1991 KLT 65 the interpretation of S.138 is Clearly deat, the object of the section is only to make the drawer of the subject to penalty when the cheque is bounced for reasons mentioned therein. And it has to be remembered till the cheque is returned unpaid no offence under S.138 is made out.

To conclude there is absolutely no reason as to why the advocate shall prepare a notice of demand in the name of the payee or holder-in-due course himself and ask him to sign and sent it, when the Advocate himself can use the word under instruction from, or on behalf of etc. without violating any of principles of law.

Abolish C.A.T. - Sooner the Better

(By K. Srinivasan Nair, Former Judicial Officer and Addl. Director of Public Prosecutions)

It was reported that recommendation have been made by a High Level Committee to abolish the Central Administrative Tribunal (C.A.T.). This is a realistic and most essential step, and the recommendations have not come a day too late.

The Tribunal which was established as an alternative forum of the High Court, to deliver speedy justice has not only defeated the purpose for which it was created, but has also turned counter productive, becoming a curse on the tax payer, and the litigant who comes before the Tribunal.

The High Courts with heavy work loads, took a very long time to adjudicate cases of Government employees, who were involved in the task of running the administration. Hence, the Tribunal was established to bring cheap and speedy justice to the employees. But it has miserably failed in this task, moving at snailspace. News papers report that there are about 48000 cases pending adjudication. Even for admitting cases many adjournments are made and final disposals are even slower. Thus the prime object of delivering quick justice has been defeated by the Tribunal itself. What is more, greater del ay is now caused in adjudication of cases by reason of the existence of the Tribunal, The Tribunals are now not substitutes, but subordinate to the High Courts and decisions of the Tribunals can, hence, be challenged before the High Courts. The decision in Chandrakumar case, AIR 1997 Supreme Court P.1125 makes this abundantly clear. Thus a case which will be finally decided by the High Court, say, in five years will now take ten years, as the Tribunal also may take another five years. By adding one more tyre to the system, more delay is caused, in addition to avoidable expenses to the litigant and the State. In these days, when cheap justice is aimed at, why should the poor litigant spend money in the Tribunal and later in the High Court? Why should the State exchequer be depleted by spending huge amounts for paying salaries and incurring other expenses like huge rents, maintenance of cars etc. for the sheer retention of C.A.T.s? It is believed that the Vice Chairman, who are now in the position of District Judges, are paid the salaries and perks of High Court Judges. This is a criminal waste of tax payers money, which can be spent more usefully in other ways. It will also demoralise regular District Judges, who do much more work, and are paid much less. This is a very unhealthy situation for the judiciary and State.

Qualitatively also, the performance of the Tribunals has come in for strong criticism of the Supreme Court in several reported cases, for example (1996) 3 SCC 158. The fact that many groups of employees like Bank employees. Insurance employees. Port Trust employees and other PSU employees have chosen not to go before the C.A.T. shows that even the aggrieved litigants would prefer to steer clear of the C.A.T.

It also appears that those on the top of the C.A.T. prefer to spend much time, travelling to different States in the country and hearing cases, while there is more than enough judicial and administrative work to do at the Head Quarters.

Unlike in the High Court, the functionaries are in three levels. The Chairman holds a high rank with no equal, Vice Chairman and members holding two different lower levels. But when a very important case like the Cabinet Secretary's case came up, was the Chairman available to hear it? We have seen the quality of the decision by the CAT.

The Government of India must take expeditious action to wind up this white elephant, and save the employees from delay, by leaving them to seek redress from the High Courts as before, also avoiding substantial expenses at the C.A.T.