A Note on 1995 (2) KLT 205 (Sc) And 1995 (2) KLT 794

(By John Mathew, Advocate, Trichur)

After a long lapse of over two decades the Hon'ble Supreme Court of India overruled 1973 KLT 138 (FB) in 1995 (2) KLT-205. The learned Judges have also affirmed AIR 1964 S.C. 1099 (Vide 1987 (1) KLT Journal page 22). Thus for Rent Control Appeals under Section 18 of Act 2/65, Section 5 of the Limitation Act ha& become applicable.

In this connection, I may mention two recent rulings of our Hon'ble High Court touching upon Section 5 of the Limitation Act. (1) 1993 (2) KLT 313 and (2) 1995 (2) KLT 794. In the former the learned Judges based their conclusions on Order XXII Rule 9(3) of the C.P.C. read with Section 22 of the Rent Control Act and the proviso to Rent Control Rules added by amendment. Though in the latter case reference has been made to Order 9 Rule 13 of the C.P.C. read with Section 23(1)(h) of the Rent Control Act, it was held that Rent Control Court has also got powers to condone delay.

The Rent Control Act defines only "Rent Control Court" and not Appellate Authority or Revisional Authority or Court. The existence of the words "District Court" has been responsible for finding that the District Court is not a persona designata. But Notification S.R.O. No.1631/89 uses the words guardedly as "District Judge". So far a harmonious construction the District Judge, the Appellate Authority should also be considered as a persona designata. In S.R.O. No.390/73 "Munsiffs" are Rent Control Courts. In my humbly view at present there is no scope for drawing a distinction between "persona designata" and "Court". All the three Courts being creatures of the statute Section 5 of the Limitation Act should, it is submitted apply because it is not specifically excluded.

Commencement of Trial in Criminal Cases

(Agi Joseph, Advocate, Alappuzha)

When the trial commences in criminal cases? The Code of Criminal Procedure 1973 designs three types of trial (1) Sessions trial (2) Warrant trial (a) Warrant cases instituted on the basis of police report (b) Warrant cases instituted those other than a police report (3) Summary trial (a) Cases instituted on the basis of police report (b) cases instituted those other than a police report.

The term trial has not been defined in the Code. It means the judicial process in accordance with law where by the question of guilt or innocence of the person accused of any offence is determined. Therefore where a Magistrate or Court conducts an inquiry for deciding as to the guilt or innocence of any person accused of any offence, such an inquiry is not just an 'inquiry' but it is termed as trial. But where the inquiry relates to a matter other than the determination of guilt or innocence in respect of any alleged offence, such an inquiry is not a trial but a mere 'inquiry'. For instance, inquiry for determining the liability to pay maintenance to the wife, child or parent under S. 125 an enquiry for deciding as to the liability to furnish a bound for keeping peace and or being of good behaviour under S. 107,108,109,110 etc. (See Page 48 R.V. Kelkers Lectures on Cr. P.C. Second Edn.).

The word trial has been used in various sections of the Criminal Procedure old and new code in different contexts with different meanings. In certain sections this word has been used in a very general and wide sense while in certain other sections this has been used in the limited or strict legal sense. Therefore, this expression cannot be given a uniform or fixed meaning wherever this term appears its meaning has to be understood according to the context in which it has been used (Food Inspector Palghat Municipality v. Venkitachalam Chettiar 1979 KLT 750 (DB) Para. 18).

The words tried and trial appears to have no fixed or universal meaning. No doubt, in quite a number of Sections in the Code the words tried and trial have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in other context in the Code, they should necessarily be limited to their can notation and significance. They are words which must be considered with regard to the scheme and purpose of the provision under considerations (The State of Bihar v. Ram Naresh Pandey AIR 1957 SC 389 (3 Judges) See Bihar Coop. D & CM. Union v. Bank of Bihar AIR 1967 SC 389.

The word trial has its origin from French word 'trier' and Latin words 'trees, tria'. Generally trial means the determination of issues arising in a particular case. This is same in both civil and criminal cases.

Dictionary meaning of trial in various dictionaries are:

"The conclusion by a competent tribunal of questions in issue in legal proceedings whether civil or criminal".

                                                        - Strouds Judl. Dictionary 3rd Edn. Vol. 4 P. 3092.

"The hearing of a cause, Civil or Criminal before a Judge who has jurisdiction over it according to the laws of the land."

-Whartons Law Lexicon 14th Edn. P. 1011.

"A step in an action, prosecution or other judicial proceeding by which the question of fact in issue are decided."

                                                      -W.H. Byrne Dictionary of English Law (1923 Edn)

"A judicial examination in accordance with law of the land or a cause, either civil or criminal of the issues between the parties, whether of law or fact before a Court that has jurisdiction over it. It concludes all proceedings from time when issue is joined or more usually when parties called to try their case in court to the time of its final determination".

                                                                                - Blacks Law Dictionary (1968 Edn.)

"Trial means the mode of determining a question of fact in a Court of law, all proceedings from the time when the parties are called to try their cases".

                                                           -Websters Third New International Dictionary Vol.2.

In State Bank of India v. Sundara Money AIR 1976 SC 1111, Krishna Iyer, J. speaking for the Court observed in this inimitable style that "dictionaries are not dictators of statutory construction where the benignant mood of a law may furnish a different denotation".

In Gramaphone Co. of India v. Birendra Bahadur AIR 1984 SC 667 Court observed that "the same word may mean different things in different enactments and in different contexts. It may even mean different things at different places in the same statute. It all depends on the sense of the provision where it occurs. Reference to dictionaries is hardly of any avail, particularly in the case of words of ordinary parlance with a variety of well known meanings such words take colour from the context".

The term TRIAL is not defined in the present Code of Criminal Procedure 1973. But the term inquiry is defined in S. 2(g) of the Code that 'inquiry means every inquiry, other than a trials conducted under this Code by a Magistrate or Court'. Thus, "the definition puts it beyond doubt that an inquiry is something different from trial and that inquiry stops when trial begins" (per Justice Krishna Rao in Kingam Savaranna v. State AIR 1957 AP 472). This same view was also expressed in 1975 KLT 703 (705), 1989 Crl. L J 600 (611) FB, AIR 1957 SC 503, AIR 1957 SC 389. Thus, when inquiry stops trial begins in cases where the Code is silent regarding the commencement of Trial.

In Asgarali Nazarali Singapore Walla v. State of Bombay (Justice Bhagavathi, Jagannadha Das, Imam JJ. Govindamenon and Kapur JJ.) AIR 1957 SC 503 Court observed that (1) A trial is the conclusion by a competent tribunal of questions in issue in legal proceedings whether Civil or Criminal (2) The trial is not complete until sentence has been passed or the offender has been ordered to be discharged (R Vs. Grant (1951) 1 KB 500).

In Hari Vishnu Kammath v. Election Tribunal, Jabalpur AIR 1958 MP 168, Justice Hidayathulla and B.K. Choudhuri J. observed that the trial has two meanings. It may mean (1) the trial of controversy that arises from an issue or (ii) trial of election petition or a complaint or an action from beginning to end.

The term trial is defined in the old Code of Criminal Procedure 1872 (Act X of 1872).

"Trial means the proceedings taken in Court after a charge has been drawn up and includes the punishment of the offender".

"Inquiry includes any inquiry which may be conducted by a Magistrate or Court under this Act."

The words inquiry and trial were both defined in the Code of 1872 but the definition of the word trial was omitted in the 1882 Code andlateroninthel898Code the definition of the word 'inquiry' was slightly altered by adding the phrase "other than a trial' leaving the term 'trial' undefined. But in the 1955 amendment the words 'Commencement of trial' were introduced in S.251A in the first time' which clearly denote that the trial starts in a warrant case instituted on a police report right from the stage when the accused appears or is brought before the Court.

Commence of trial in Sessions Cases

In A.R. Anthulay v. R.S. Nayak (Justice D.A. Desai, R.S. Pathak, O. Chinnappa Reddy JJ., A.P. Sen and Balakrishna Eradi JJ.) AIR 1984 SC 718 Court observed as follows:-

"Trial follows cognizance and cognizance is preceded by investigation. This is the scheme of the Code in respect of cognizable offence, the informant approaches an officer in charge of a Police Station when in the case of cognizable offence, a police officer on receipt of information of an offence proceeds under Chapter XII he starts with investigation and then submits his report called the Police Report upon which cognizance is taken and then follows trial" (See H.N. Rishbud and Inder Singh v. State of Delhi AIR 1955 SC 196 (203-204).

In Union of India v. Madan Lal Yadav AIR 1996 SC 1340 Justice K. Ramaswamy observed (Obiter Dicta) in para. 27 that "it is settled law that under the said Code trial commences the moment cognizance is taken and process is issued to the accused for his appearance".

The word cognizance has been used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. What is taking cognizance has not been defined in the Code. The word cognizance has no mysterious or esoteric meaning i n Criminal Procedure". It only means "became aware of and when used with reference to a Court or Judge to take notice judicially".

In Darshan Singh Ram Krishan v. The State of Maharashtra (3 Judges) AIR 1971 SC 2372 Para. 8 court observed that "Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Therefore, when a magistrate takes cognizance of an offence upon a Police Report prima facie he does so of the offence or offences disclosed in such Report."

S. 193 of the Cr. P.C. is as follows:-

"Except as otherwise expressly provided by this Code or by any other law for the time being in force no Court of Sessions shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code".

When an offence is exclusively triable by a Court of Session according to S. 26 read with the first schedule the magistrate taking cognizance of such offence is required to commit the case for trial to the Court of Session after completing certain preliminary formalities specified in Ss. 207 and 208. It will be noticed that both under S. 193 and 209, the commitment is 'of the case and not of the accused'. Taking cognizance is not an administrative act but it is a judicial act. Hence, according to Ss. 26,193 read with 209 and I Schedule Cr. P.C. Trial in a Sessions case start only when the cognizance was taken by the Session Court.

Trial in Warrant Cases

(a) Cases instituted on the basis of Police Report

Section 238 of the Cr. P.C. as follows:

'When, in any warrant case instituted on a Police Report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of S. 207'.

Before the amendment of 1955, there was no question of trial starting unless the charges were framed because under Ss. 252 when the accused appeared or was brought before the Magistrate, the magistrate had to hear the complainant and take evidence as may be produced by him. After summoning the witness under S. 252(2) the Magistrate had to take the evidence and after examining the same he had to determine whether a case was made out by the prosecution which if unrebutted would warrant the conviction of the accused. If the magistrate was of the opinion from the examination of the evidence taken at the earlier stage that the accused had committed an offence triable under the said chapter, then only charge was to be framed.

In Hari Dass Sanyal v. Sritulla ILR 15 Cal 608 (FB) Calcutta High Court opined that 'the trial will not begin until after the accused is called upon to meet the charge framed against him, that is to say trial is a proceeding which can end in conviction or acquittal and all proceedings anterior to it must be regarded as inquiry. "The same view was expressed in Hema Singh v. Emperor Air 1929 Pat 644 (DB), Emperor v. Mating Ba Thon AIR 1931 Rang 225 (FB), Narayanaswami Naidu In re ILR 32 Mad 220 (FB),Queen Empress v. Chotu ILR 9 All 52 (FB)

In Sarkar v. Madho Ram AIR 1950 Raj 34 Rajasthan High Court opined that "In warrant case, I am inclined to think that the trial can be said to begin only after the charge is framed. According to S. 256 which occurs in chapter as Trial of warrant cases' it is only after the framing of the charge that the accused can claim to be tried".

Even in that time also few courts had taken a contrary view. In a Division Bench of Calcutta High Court in Gomer Sirdha v. Queen Empress ILR 25 Cal 863 their Lordships observed that 'trial' commences when the case was called on with the Magistrate on the Bench and the accused in the dock.

In Dagdu Govlndset v. Punjaveduwani AIR 1937 Bombay 55 (ILR (1937) Bom. 211) Justice Boomfield observed as follows:-

"But according to my experience of the administration of Criminal justice in this Presidency which is not inconsiderable the Courts have always accepted the definition of trial which has been given in ILR 25 Cal 863, that is to say 'trial' has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and defence if the • accused be defended present in Court for the hearing of the case".

The same view also expressed in Ramachandra Narhar v. Emperor AIR 1944Bom 14, Sahib Din v. Emperor ILR 3 Lah 115 (AIR 1922 Lah. 49) and the Court of Judicial Commission in Sind in Labh Singh v. Emperor AIR 1934 Sind 106.

By virtue of the amendment of 1955, the words "commencement of trial" were introduced for the first time which clearly denote that the trial starts in a warrant case right from the stage when the accused appears or is brought before the Court. This appears that the main intent and purpose of introducing the words 'commencement of trial' by the amendment Act of 1955 which has not appeared in the Code of 1898 or in the various amendments made before the Act of 1955 to the Code. Thus, if the trial begins at that stage, it cannot be said that the proceedings starting with S. 251A amount to an inquiry within the meaning of S. 2(j) of the Code. In other words, the simplified procedure introduced by the amendment of 1955 which is almost coincides with S. 238 of 1973 Code i.e. the trial starts when the magistrate satisfy himself that he has complied with the provisions of S. 207.

Therefore, Lordships Justice S.M. Fazal Ali in V. C. Shukla v. State AIR 1980 SC 962 (S.M. Fazal Ali, P.N. Shingal, D.A. Desai and A.P. Sen JJ.) observed as follows:-"We are satisfied that the proceeding starting with S. 238 of the Code (1973) including any discharge or framing of charges under S. 239 or 240 amounts to trial".

Per his Lordships Justice Desai in the same Judgment that "the Trial cannot commence unless the accused is furnished with copies of requisite documents. And the duty is cast on the magistrate to ascertain at the commencement of the trial that S. 207 is complied with and if it is not done as part of trial furnish the requisite copies".

But in Nagarajan v. Khadar 1989 (1) KLT 644 Kerala High Court opined that "After referring the different provisions of the Code, the Supreme Court has held in V.C. Shukla v. State (AIR 1980 SC 962) that there is no question of starting the trial until charge is framed. What is the terminal point of trial, if its starting point is the framing of charge? All steps which a Criminal Court adopts subsequent to the framing of charge and until the pronouncement of judgment can be treated as trial proceedings".

With due respect to his Lordships, I am not able to agree with the said opinion because the ratio in V. C. Shukla v. State was not correct as quoted in the said decision. In AIR 1980 SC 962 Page 986-B Para. 38 line 4 quotes "This is therefore, is an additional reason to hold that the proceedings starting from S. 251A in the previous code and S. 238 i n the code of 1973 do not amount to an inquiry at all but amount to the starting of a trial straight away" (per Fazal Ali, J. for himself and on behalf of A P Sen J.) Thus, trial in a warrant case instituted on a police report, the date on which the documents under S. 207 of the Code are furnished to the accused and the Magistrate satisfies himself of the same under S. 238 of the Code.

Warrant cases instituted other than a Police Report and Summons Cases

Section 200 'A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses.

(a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint or

(b) If the magistrate makes over the case for inquiry or trial to another magistrate under S. 192:

Provided further that if the Magistrate makes over the case to another Magistrate under S. 192 after examining the complainant and die witnesses the later Magistrate need not reexamine them.'

Section 202 "(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under S. 192, may, if thinks fit, postpone the issues of process against the accused and either inquire into the case himself or direct an investigation, to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.

Provided that no such direction for investigation shall be made:-

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under S 200.

(2) In an inquiry under Sub s. d). die Magistrate may, if he thinks fit take evidence of witnesses on oath.

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-s. (i) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code as an officer in charge of a police station except the power to arrest without warrant."

Section 204 " (1). If in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, and the case appears to be.

(a) Summons- case, he shall issue his summons for die attendance of accused-----".

As stated above, it is the settled position that 'when inquiry stops trial begins' in cases where the code is silent regarding commencement of trial. When a case is instituted on the basis of a complaint whether it is warrant or summons case cognizance is taken only after the inquiry by the Court as provided in S. 202 of the Cr. P.C. or on the basis of the result of investigation.

Patna High Court observed that the object of an inquiry is to determine the truth or falsity of certain facts in order to take further action thereon, while the object of an investigation is to collect evidence (AIR 1920 Pat. 563 (565). An inquiry must be by a Magistrate or Court whereas an investigation is by a police officer or any person other than a Magistrate or Court (AIR 1954 Cal. 350 (351), AIR 1942 Bom. 42 (43)). Thus, in a case where a cognizance is taken after the inquiry by the Court as specified in S. 202(2) the trial starts the moment when inquiry stops.

But it is different in the case where a cognizance is taken o the basis of complaint of a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint or on an investigation report (Summons case only). In such cases, trial starts only when the issue of process for the appearance of the accused (See S. 204 Cr. P.C.) and in the case of a cognizable offence (Summons case) that the informant approaches Police Station, the trial starts only when the cognizance is taken (See AIR 1984 SC 718).

Therefore note 3 to R. 132 of the Criminal Rules of Practice in Kerala have to be amenended except 3(b).

A Note of Dissent on M/S. Bescot v. Union of India - 1998 (1) KLT 162

(By Shahul Hameed Moopan, Advocate, Ernakulam)

1. Central Excise duties form the single largest source of revenue for Central Government. The levy and collection of the duty is under the authority of Central Excise Act, 1944 and rules framed thereunder. The Act was originally referred to as Central Excise and S alt Act 1944, till the word' salt' was omitted, from the long title, by Finance Act, 1996 (33 of 1996). The Act is no longer Central Excise & Salt Act 1944, but Central Excise Act, 1944.

2. Chapter VIA of the Central Excise Act (hereinafter referred to as Act) deals with the Appellate and other specified remedies against the orders passed by various authorities constituted under the Act. Similar to Appellate Tribunal constituted under Income Tax Act, 1961, an Appellate Tribunal is constituted under the Act, viz., Customs Excise and Gold (Control), Appellate Tribunal, (in short CEGAT) headed by its President, appointed by the Central Government. S. 35D of the Act deals with the procedure to be followed by the Tribunal. Before the deletion of the relevant provision viz. S.35D (2) with effect from 26.5.1995, by Finance Act, 1995 (Act 22 of 1995), only special Benches of Tribunal, constituted by the President, were vested with jurisdiction to hear and dispose of the Appeals against the decision or order relating, among other things, to determination of any question having a relation to rate of duty of excise or to value of goods for the purpose of assessment. By the above referred to deletion/amendment, the concept of 'Special Bench' referred to in the Act is no longer in existence and all the Benches of CEGAT with a quorum of more than 1 member (subject to territorial jurisdiction) can hear and dispose of all the appeals c6ming before it, irrespective of the involvement of dispute regarding Rate of Duty of Excise or Valuation of Goods for the purpose of assessment, in the impugned order.

3. In M/s. Bescot v. Union of India (1998 (1) KLT 162), our Hon'ble High Court considered the ambit and scope of S. 35D of the Act. "While disposing of O.P. 8414 of 1997, in challenge of order dated 3.12.1996 passed by the 2 member bench of CEGAT in an appeal before it, our Hon'ble High Court is found to have failed to take note of the amendments/deletion referred to in para.1 and 2 above, thereby committing a serious error in quashing the impugned order of CEGAT and holding that Regional Benches of CEGAT has no jurisdiction to decide the appeals relating to rate of duty, but Only a Special Bench constituted under sub-s.2 to S.35D, which provision stood repealed with effect from 26.5.1995.

4. In short, M/s. Bescot v. Union of India (1998 (1) KLT 162), is not a good law and I feel that it requires reconsideration.

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.