Victim at the Mercy of Witnesses

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Victim's Plight

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

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

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

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

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

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

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

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

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

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

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

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Jottings

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

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

Uncertainties of the Law

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

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

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

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

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Tailpiece

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

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

Open and Shut Case

(V.K. Babu Prakash, Munsiff, Attingal)

The scene was in Arsakion Court No.33 in down town Athens in Greece. The court house was a grey stone building that takes up the entire square block at University Street and Strada. It was on November 11th 1978. A murder trial was going on. It was the murder of Mr. George Salvas and the accused his wife Anastasia Salvas, age 33.

The defence lawyer was Nappoleon Chotas, one of the prominent criminal lawyers of the time. He was a thin, emaciated looking man with large sad eyes. He dressed badly and his physical appearance was such as which does not inspire confidence in him. But behind his baffled manner, was a brilliant trenchent mind.

On the other, Peter Demonides was the Prosecuting Attorney. He was known to be the predatory Hawk among the lawyers. He was fierce and never left any stones of his case unturned.

The fact of the case were simple: Anastasia Salvas was a beautiful young woman married to a wealthy man named George Salvas, who was 30 years her senior. Anastasia had been having an affair with their young chauffeur, Josef Pappas, and, according to witnesses, her husband had threatened to divorce her and write her out of his will. On the night of the murder, she had dismissed the servants and prepared dinner for her husband, George Salvas had been suffering from a cough and cold. During dinner, he had suffered a coughing spell. His wife had brought him his bottle of cough syrup. Salvas had taken one swallow and dropped dead. Medical Pathologist examined his visera and opined the cause as: Blood poisoning of Antimony.

Room No. 33 was crowded. Jury box was packed with 10 jurors. Ahead in the dias Chief Justice and two brother Judges faced the audience. Anastasia was seated at the defendant's table dressed in the simple black skirt and blouse. No jewellery, no make up. But she was stunningly beautiful.

The Prosecutor, Peter Demonides addressed the bench: "My Lords, in a murder trial, it takes up months after months. But I do not think this case would take that length of time. We will prove the motive, the opportunity and the means to carry out the cold blooded scheme by the accused".

Napoleon Chotas slowly rose to his feet. "My Lords, a poet once said that the eyes are the windows of the soul. I believe that is true. I want all of you to look into the eyes of the defendant. Your could not find a murder glare in it for sure".

Prosecutor examined a line of witnesses. First was the House keeper. She spoke about the relation of Anastasia and George Salvas as like a cat and dog. Always fought each other. And the fun of it was that always Anastasia physically attacked George, the husband. On the night of the murder, Anastasia sent away all the maids and took charge of the Kitchen to prepare dinner for George. Witness said, they meant to have a second Honeymoon.

Peter Demonides sat down with a triumphant smile. Napoleon Chotas stood up and murmered 'No cross for the defence'. Chief Justice made a curious stare at him. But Napoleon Chotas drooped his head down.

Next came, Josef Pappas the Chauffeur. He had admitted the affair with Anastasia and indeed they were planning to elope away. On him also, Napoleon Chotas did not lift his finger of cross-examination. Prosecutor was charging over the court every step.

Then came the Pathologist who said about that he found the trace of Antimony in the Visera of George Salvas. On him also, Napoleon Chotas made no cross examination. Next came a plant dealer. He was working in a nursery where Anastasia used to come for getting advice for the up keep of the plants in her garden. Witness said, he had sold some antimony to Anastasia to get rid of infestation in her plants. Witness admitted, it was a deadly poison like arsenic. To him Napoleon Chotas made no attempt of confrontation.

Then, the Prosecutor took out the bottle of cough syrup which was the court exhibit. He exalted that the cough syrup was mixed up with antimony and George Salvas swallowed a portion of it. He was dead like a doornel within minutes.

Napoleon Chotas hesitatingly stood up with a stagger and whispered "Prosecutor may make sure to the court that is this the bottle administered by the defendant on the victim". Peter Demonidas thought in mind what a fool this defence lawyer is and exalted to the jury with an emphasising tone, "Ladies and gentlemen and My Lords, this is the murder weapon used by this defendant upon poor George Salvas".....and noded his head at Napoleon without any smile on his face.

Trial is over. Peter Deminidas was flaring with confidence. He never felt that this case could be such an open and shut case. No cross examination on any witnesses: No objection to the murder means. A case of clean walkover. He sat down with the plea of maximum punishment for the accused.

Napoleon Chotas rose up. All the jurors and Judges were frowning upon him. What has he got to do with the case. He began his submission in a low voice. "Prosecution proved nothing in this case". Then a coughing spell suddenly interrupted him. He coughed and coughed again. Judges began to feel impatience. Napoleon slowly went near the dias and took out the murder weapon, the cough syrup filled with antimony. Napoleon unscrewed the bottle and poured the content in to his mouth. Jourors, Judges and all the audience looked at him with plate like eyes, mesmerized, spell bound.

Nothing happened. Napoleon levelled his throat. Cough subsided. He began to say in emphasising tone: "Prosecutor's case is a mockery of justice. George did not die at the hands of this woman".

Result was quite clear. A clean acquittal with a feather in the cap of Napoleon. Prosecutor walked out with a shame face. Napoleon in his old timid way..........

xxx                                    xxx                                    xxx

Tail Piece:

Napoleon Chotas did not play any tricks, or any manipulations like changing the murder object. His shrewed mind worked it out. Usually the judges and jurors left for their Chambers sharp at one O'clock every session. During the trial of the witness Napoleon watched the time on the wall clock. Just 12 past 55 he concluded his argument and swallowed the syrup bottle mixed with antimony. Soon when the clock struck one the Judges left for their chamber. Napoleon hurriedly went to his office within live minutes and there a team of doctors were waiting for him. Indeed he had swallowed the syrup mixed with poison. But antimony take ten to twenty minutes to work on in the blood. Within which the doctors emptied the stomach of Napoleon pumping out the poison. And Napoleon returned to the court for hearing the verdict hale and hearty. Fit as a fiddle. With a thum's up to the audience.

Redeeming & Revamping the Legal Profession

(By John Joseph, Advocate, Ernakulam)

1999 (1) KLT Part I carried a fervent call of a senior advocate of high esteem to redeem and revamp the legal profession. The reverent advocate who made the call is Shri. T.P. Kelu Nambiar "who sits on the commanding heights of the profession." With the highest concern and from the depth of his heart, Shri. T.P. Kelu Nambiar called upon every lawyer to give a robust response to his exhortation. It is not known how many responded to his call. Indeed, none was seen published and none in action was witnessed or experienced at the Bar. The call had evoked spontaneous response in me. But I kept my response in reserve waiting for response from others. Now that nobody else has come forward to respond hitherto, which according to me is the duty of every advocate, I made up my mind to pen mine.

Having spent more than four decades in the profession, Shri. Kelu Nambiar observes that time has brought a great transformation in the profession. The glory of the profession has been lost considerably. Nobility of the profession has gone down. According to him, the profession is caught in the throes of recession and retrogression. The profession has become anemic and has succumbed to palsy. There is grave crisis in the profession and it is perilously close to paralysis and bankruptcy. After observing thus, he calls upon every lawyer to do one's lot with urgency to repair the damage.

At the outset, it may be pointed out that Shri. Kelu Nambiar's exhortation is not the first of its kind. The feeling Shri. Nambiar has expressed existed among the leaders of the profession of all times. A like feeling was expressed by Sir Maurice Gawyer, the then Chief Justice of India (of the Federal Court) in 1945, perhaps, even before Shri. Nambiar enrolled as an advocate. The same finds place in the Forward to the second edition of Rao Bahadur K.V. Krishnaswami Aiyar's book on Professional Conduct and Advocacy. Everybody is aware about the call made by Shakespeare to kill the lawyers. The attempt to avoid such a trend requires to be pursued without any holiday. Solutions suitable to the times need to be developed and applied and the glory of the profession should somehow be restored. But the fact that this feeling is as old as the profession itself is no consolation.

Shri. Kelu Nambiar has himself enlisted some of the reasons which have led to the consequences sought to be avoided. They are:

i)     the legal profession is now used only as an accessory, not the ultimate,

ii)    the legal practice has become more of a trade than of a noble profession,

iii)   lawyers are converting themselves into a bundle of services that can be sold out, and

iv)   lawyers are defaulting on personal letters, without keeping character, going even for brief hunting.

Of course, this is not an exhaustive list. In his own words, it is only 'a catalogue of situations in the profession.'

What is needed by way of response is to express one's views on the reasons listed by Shri. Nambiar and to list other reasons, if any, and the solutions also. It is felt that Nos. (3) and (4) are the offshoots of No.2. Commercialisation has converted the profession more into a money chasing activity than a service. Success in the profession is measured by the money amassed by one and not by the quality of service rendered by one. This has induced craze for money even in otherwise successful lawyers. Consequently, every bit of the profession is looked at more as a commodity for sale than a service to render. Does it mean that everybody in the profession has become a money chaser? Not at all. Only a very miniscule minority has become so. The majority still practices in the conventional style without emptying the pocket of the client. If that is so, why has the profession lost its face and is looked at as a commercial activity? It is so because only those who mint money are considered successful. The members of the public see the profession through them who manipulate things in such a manner as to give an impression that only they are significant in the profession and others are insignificant.

This analysis prompts me to make certain suggestions which I feel may be used to ward off the present state of affairs. The majority who still practices the profession with values should take steps to present before the members of the public the real face of the profession. The contributions at different levels, made by the profession should be projected and published among laymen. Respectable practitioners should be given the appreciation they deserve and they should be projected as the true leaders of the profession. Shri. Nambiar has suggested that a prize should be instituted for advocacy in the name of Hortensius. Similar other measures also should be adopted in abundance so that the glorious and nobler face of the profession will be noticed by the members of the public in preference to the false images that are projected in self interest.

Apart from the attempt to marginalise the impact of commercialisation, several other steps also can be taken to achieve the purpose of glorifying the profession. A start may be given in the legal education. Two things are noticeable. Constant efforts are made with all seriousness to improve the curriculum. These efforts are rewarding. The students who take up the study of law today are far more capable and enterprising than the earlier generations. They are capable of adding substance to legal profession. But, they need to be properly guided and kept out of the clutches of commercialisation. Two steps may be suggested. Respectable advocates should be prepared to find out time to serve as part time lecturers in the law colleges. The orientation that can be provided by such lawyers to the students is really useful and important. Many of the present practicing advocates may vouch for this. As students, they are influenced by the part time lecturers who were the leading and the highly respected advocates of those times.

Since a few years, this practice has disappeared. Part time lecturers are drawn from the beginners in the profession. They may be good lecturers, no doubt. But they fail to provide orientation to the budding lawyers which will stay with them throughout life.

Another possible measure is to give orientation to the full time lecturers and professors. They should be enabled to charge the budding lawyers with the glory and nobility of the legal profession. The institutions of advocates should take up this responsibility of enabling the lecturers and professors.

Another area thirsty of transformation is that of the young lawyers. There are certain significant differences between the beginners of the present times and those of the past. In the past, most of those who joined the profession had some financial stability in the sense that at least the majority came from financially well-off families-mostly agricultural or trading. Exceptions are there, of course, and they prove the rule. Again, they were used to simple living and were not highly tempted by commercialisation. Of course, even among them, there are some who adorned extravagance and luxuries and they had chosen paths suitable to their life style. But, again, they were a minority. Majority was otherwise. Today, this has changed. There is great rush to the profession. Many of them do not have any financial backing and most of them are influenced by the commercial approach to life. To overcome the outcome of this tendency, the senior advocates who accept juniors should become more magnanimous. They should support the juniors financially, not for the name sake but substantially. Also, organised efforts to ward off the effect of commercialisation should be made.

Yet another step required to be taken to redeem the profession is to re-establish 'merit' and to sweep away 'mediocrity' that presently rules over the profession. Infiltration of political considerations in the matter of various kinds of appointments pertaining to profession is the chief reason for the upper hand to mediocrity over merit. Concrete steps are required to be taken. According to me, a war should be fought to bring about meritorious methods of appointment to various posts. It is worth the fight because this will have its repercussions not only in the legal profession but in every field and all walks of life which are corrupted by the mediocre politics.

The historical glory of the profession has been built up at the altar of the historical fights undertaken by the legal profession in common and by eminent lawyers individually for common causes. Leadership of every social move was, perhaps, the prerogative of the legal profession, in the sense that lawyers were providing leadership everywhere. This leadership role of the profession has been lost after independence of the country chiefly because the eminent lawyers confined their work only to courts and concentrated mainly to make money. Time has now come to fight a second freedom struggle and for lawyers it provides an opportunity to regain the lost glory of their profession. Lawyers are capable of providing eminent leadership to the people of the country now, of course, only if they are prepared to set apart at least a portion of their time for that purpose.

Value judgments pronounced by the Courts have also added to the glory of the legal profession. In losing the glory of the profession, the rarity of such judgment is one of the reasons. This is a matter that should enter the conscience of the Judges. The entire world is marching to a new era with the new millennium. The Judges can through value judgments provide guidance and leadership to the people, provided judgments are pronounced keeping in mind the changes that are taking place. The judiciary has played such a role throughout and that has contributed immensely to the glory of the profession. This is so because it is the lawyers who prepare the ground for the birth of such judgments.

To conclude, redeeming and revamping the legal profession warrant actions in all spheres beginning with legal education and reaching up to the stage of pronouncing judgments in cases. There is scope for improvement in every sphere only if lawyers conscious of the glory of the legal profession are ready to take over some responsibility. Great sacrifices are not required. Taking up small responsibilities setting apart a very minor portion of their time to carry out them is sufficient. In the past, great sacrifices were required because fight was against tyranny. Presently, the war required to be waged is against the evils or short comings in a democracy and that warrants only meaningful participation and not great sacrifice. This is a point that needs to be noticed by the lawyers of eminence. Without in any way losing the practice, eminent lawyers can provide the leadership warranted by the times and by that they can contribute to the task of regaining the glory of the profession and of redeeming and revamping it.

The Impact of American Judicial Review in India

(N. Haridas, District Judge, Alappuzha)

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

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

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

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

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

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

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

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

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

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