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.

Section 127 (3) Cr. P.C, 1973; The Muslim Women (Protection of Rights on Divorce) Act, 1986; and the Muslim Woman's Right to Mataa

(By Lucy Carroll) *

In 1879, the Calcutta High Court observed, in dealing with a case arising under the maintenance provisions of the Presidency Magistrates Act (a predecessor of the provisions later embodied in S.488 of the Criminal Procedure Code, 1898):

The fact that the power of divorce, given by the Mahomedan law, may be so exercised as to defeat the intention of the Legislature as expressed in S.234 Act 4 of 1877 (i.e., Presidency Magistrates Act), and other similar enactment, may go to show that further legislation is required, but it cannot affect the law as it stands.[1]

It was not until nearly a century later that Parliament acted and to the new Code of Criminal Procedure, 1973, was added a provision extending the jurisdiction of the magistrate to issue maintenance orders to include orders in favour of a divorced woman against her former husband[2] Almost immediately, however, the benefit apparently conferred by this section was placed in doubt by the subsequent amendment of S.127 of the Code.

During the course of the Parliamentary debates over the Government sponsored amendment of S.127 in December 1973, Jyotirmoy Bosu spoke in opposition on behalf of "millions of women, specially Muslim women," and cited petitions received from Muslim women and women’s organisations. In defense of the provisions of S.125, which as they applied to divorced Muslim women appeared to be negated by the amendment proposed to S.127, Bosu invoked Sura II, Verse 241 of the Quran:- "For divorced women maintenance should be provided on a reasonable scale". The new S.125, with the expanded definition of the term "wife", he suggested, did no more than to give to Muslim women "the benefit of this clear mandate of the Holy Quran."

Pressed by Bosu to reply to his objections to the proposed amendment of S.127, the Minister responded by stating that if Bosu's propositions held good, "this provision (i.e., S.127(3)(b) may not come into operation (to negate the rights of divorced Muslim women under S. 125)."

A short and powerful, and in a sense prophetic, 1977 article by T.M. Abdullah, in Kerala Law Times, appears to pick up the debate from the point where it was left by the Lok Sabha exchange between Jyotirmoy Bosu and the Government Minister.[3]In order to apply S. 127(3)(b) to the case of a Muslim divorcee, Abdullah asserted with calm logic, it is necessary to ascertain exactly what constituted the "sum .... under ..personal law.... payable on... divorce" by a Muslim husband to his former wife. The phrase used in S. 127 (3)(b) cannot, he asserted, refer to mahr, since mahr is payable on marriage; it is only to suit the convenience of the parties that it is often arranged that payment of a portion of the mahr shall be deferred until some later date or until dissolution of the marriage.

Similarly, the terms of S. 127(3)(b) cannot include maintenance for the period of iddah, the liability for which does not arise by reason of divorce. The obligation to maintain the wife during iddah is an extension of the husband's obligation to maintain his wife during the marriage.

Iddah does not necessarily fall to be observed after the divorce; when iddah precedes the actual dissolution of the marriage, the spouses continue as husband and wife throughout the iddah period and maintenance is incumbent upon the husband because of the subsistence of the marriage.

When iddah does follow the divorce, the divorced wife is prohibited from remarrying, not because of the divorce but because of the (now dissolved) marriage and the interests of the (former) husband in ascertaining whether the woman may be pregnant by him.

The divorced woman's inability to remarry during the post-divorce iddah derives from the marriage; the ex-husband's obligation to maintain her during this period likewise is an extension of his obligation to maintain her during coverture. If the woman is pregnant, iddah will extend until she is delivered; the former husband's obligation to maintain continues throughout the pregnancy, not because of the divorce but because of the father's liability for the maintenance of his child.

So, the mahr and the iddah maintenance are out of account for relief under S. 127 Cr. P.C. What remains is the command for making a reasonable or honourable provision for the divorced wife contained in Chapter 2 Verse 241 of the Holy Quran.

The reasonable or honourable provision for the divorced wife may take the form of a lump sum allowance or [be paid] by instalments.[4]

Following Abdullah's line of argument, and as the Minister had remarked in the course of exchange with Jyotirmoy Bosu, if the relevant reference is Quaran, II: 241, the terms of S. 123(3)(b) "may not come into operation" to negate the rights conferred upon a Muslim divorcee by S. 125. The husband could only avoid liability for a maintenance order under S. 125 by voluntarily making "reasonable or honourable provision" for his divorced wife by means of a lump sum payment or an arrangement for payment of regular alimony, in addition to payment of any outstanding mahr owed the woman and maintenance for the iddah period.

The interval of nearly two decades since Abdullah's 1977 Article in Kerala Law Times has witnessed the Bai Tahira[5] and Fuzlunbi[6] cases of 1979 and 1980; the 1985 Shah Bono[7] case and the accompanying controversies; the controversial Muslim Women (Protection of Rights on Divorce) Act, 1986; and the failure of the Indian Supreme Court to find occasion to deal with the half dozen or so Writ Petitions filed more than a decade ago and challenging the constitutionality of the Muslim Women Act.

The interval since 1977 has also recently witnessed a remarkable 1995 judgment from the Dhaka High Court which is immediately relevant to the Indian situation.

Hefzur Rahman v. Shamsun Nahar Begum, 47 DLR (1995) 54

The parties were married in March 1985; a son was born in December 1987; and the husband divorced the wife in August 1988. In November 1988 the divorced woman filed suit in the Family Court for her mahr and for maintenance for herself and her infant son at the rate of Taka 1,000 per month each.

The Family Court decreed the suit and, in addition to the amount due as mahr, ordered the defendant (ex-husband/father) to pay Taka 3,000 for iddah maintenance to the plaintiff (Taka 1,000 per month for three months) and Taka 1,000 per month for the maintenance of the child.

On the defendant's appeal, the District Judge reduced the rate of maintenance for each plaintiff to Taka 600 per month. The defendant took the matter to the High Court in an attempt to get the maintenance payments reduced further.

The High Court, firstly, reinstated the maintenance at the rate initially decreed by the Family Court.

We hold that each of the opposite parties is entitled to get from the petitioner an amount of Taka 1,000 per month as maintenance commensurate with the status and means of the petitioner. We further hold that the learned District Judge acted illegally in reducing the amount abruptly without assigning any reason whatsoever.

Then, the Division Bench took up, suo motu, the question of the duration of the maintenance decreed in favour of the divorced woman, which both lower Courts had limited to the 3 months iddah. Quoting the verse which appears no less than four times in sura 54 of the Quaran (ayats 17,23,32 and 40) - "And we have made the Quran easy to understand and remember; then is there any that will receive admonition?" - the Court rejected taqlid and endorsed the principle of ijtihad.

This literal study of the Quran is discouraged by a section of Muslims. They insist that the readers should follow any of the interpretations given by the recognised early scholars. They go further by saying that the door of interpreting Quran is now closed.

Art. 8(1A) of the Constitution of Bangladesh contained in Part III under the hearing "Fundamental Principles of State Policy" states that absolute trust and faith in the Almighty Allah shall be the basis of all actions. It indicates that Quranic injunctions shall have to be followed strictly and without any deviation.

Quaran urges: "Those to whom we have sent the Book study it as it should be studied: they are the ones that believe therein" (Second Sura Baqara, verse 121). This verse directs continuous study of the Quran which is in conformity with the dynamic, progressive and universal character of Islam.

We, thus, come to the conclusion that a Civil Court has the jurisdiction to follow the law as' in the Quaran disregarding any other law on the subject (eg. in the commentaries compiled by jurists), if contrary thereto even though laid down by the earliest jurists or commentators may be of great antiquity and high authority and though followed for a considerable period.[8]. For it is an article of faith of a Muslim that he should follow without questioning what has been revealed in Quran and disobedience thereof is a sin.

Applying these principles to Quran II: 241 and analysing the import of the Arabic text, the Division Bench concluded :

So, we find that a woman who is divorced is entitled to household stuff, utensils, goods, chattels, provisions, convenience which is known, recognised, honourable, good, befitting, a kindness. Abdullah Yusuf Ali is, therefore, correct in translating the expression "mataaoon bill maaroof" as "maintenance should be provided on a reasonable scale"....

Considering all the aspects we finally hold that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddah for an indefinite period, that is to say, till she loses the status of a divorce by remarrying another person.

The petitioner was ordered to pay the maintenance as originally set by the Family Court (Taka 1,000 each per month) to his former wife until she remarried and to his son until he attained majority.

Concluding remarks

The Muslim Women (Protection of Rights on Divorce) Act is very curiously and ambiguously drafted. The important section is S. 3, which declares that the divorced woman is entitled to obtain from her former husband "maintenance", "provision" and mahr, and to recover from his possession her wedding presents and dowry (jahez); and authorizes the Magistrate to order payment and/or restoration of these sums or properties. The crucial provision is found in S. 3(1)(a), which states that the divorced woman "shall be entitled to"

a reasonable and fair provision and maintenance to be made and paid to her within the iddah period by her former husband.

The wording appears to imply that the husband has two separate and distinct obligations: (i) to make a "reasonable and fair provision" for his divorced wife; and (ii) to provide "maintenance" for her. The emphasis of this section is not on the nature or duration of any such "provision" or "maintenance" but on the time by which an arrangement for payment of "provision" and "maintenance" should be concluded, i.e., "within the iddah period."

On this reading, the Act only excuses from liability for post-iddah maintenance a man who has already discharged his obligations of both "reasonable and fair provision" and "maintenance" by paying these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her dowry, etc. as per Ss. 3(1)(c) and 3(1)(d). The whole point of Shah Bono was precisely that the husband had not made "a reasonable and fair provision" for his divorced wife, even if he had paid the amount agreed as mahr half a century earlier and provided iddah maintenance; he was therefore, ordered to pay a specified sum monthly to her under S. 125 of the Criminal Procedure Code.

The interveners on behalf of the husband in Shah Bano could not refute the words of the Quran, II: 241;9 all they could do was to contend that Yusuf Ali's translation of "mataa" as "maintenance" was incorrect and to point out that other translations employed the word "provision". This the Supreme Court termed "a distinction without a difference" - as indeed it was on the facts of the case before it: whether mataa was rendered "maintenance" or "provision", there was no pretense that the husband in Shah Bano had provided anything at all by way of mataa to his divorced wife.

As Abdullah pointed out in his 1977 article,[10] there is no reason why the "reasonable and fair provision" (mataa) enjoined by Quran II:241 could not take the form of the regular payment of alimony to the divorced woman. Rather than reserving the Shah Bano decision, it could be argued that the Muslim Women (Protection of Rights on Divorce) Act enlarged and codified it - truly preserving and protecting the rights of the divorced Muslim woman!

Footnotes:

*Fellow, National Humanities Center, Research Triangle park, North Carolina.

1Abdur Rohoman v. Sakhina, 918790 ILR 5 Calcutta 558, at P. 562.

2Section 125, Cr. P.C, 1973; explanation.

3.T.M. Abdulla, "MuslimHusband'sLiabilityunder Ss. 125 & 127.Cr.P.C." 1977 Kerala LT (Journal) 18. Actually, the author is continuing the discussion commenced by another South Indian Muslim lawyer in a previous note in the same Journal. See also : O.V. Abdulkhader, "Supreme Court Decisions on Maintenance to Muslim Divorcees," AIR 1982 Journal 115.

4.I have expanded a little on Abdullah's arguments in the summary above, but I want to call attention to his article because - short, clear, and directly to the point - it was written long before the Shah Bano and Muslim Woman Act controversies.

*BaiTahira v. Ali Hussain Fissalli Chothia, AIR 1979 Supreme Court 362; Krishnalyer, Tulzapurkar, & Patliak, JJ.

6. Fuzlumbi v. K. Khader Vali, AIR 1980 Supreme Court 1730; Krishna Iyer, Chinnappa Reddy, & A.P. Sen, JJ.

7. Mohammed Ahmed Khan v. Shah Banoo Begum, AIR Supreme Court 945; Chandrachud, CJ; Desai, Chinnappa Reddy, Venkataramiah, & Ranganath Misra, JJ.

8.Reference is to the statement of the Privy Council (Aga Mahomed Jaffer Bindanim v.Koolsoom Beebee, ILR 25 Cal. 9): "Their Lordships.....do not care to speculate on the mode in which the text quoted from the Koran, which is to be found in Sura II, verse 241-2 (sic; read "240"], is to be reconciled with the law as laid down in die Hedaya and by the author of the passage quoted from Baillie's Imamia. But it would be wrong for the Court on a point of this kind to attempt to put their own construction on the Koran in opposition to the express ruling of commentators of such great antiquity and high authority."

9. The All India Muslim Personal Law Board, the Jamaat-ul-Ulemam, and the Jaamat-i-Islam had sought and been granted the right of addressing the Supreme Court in the course of the Shah Bano hearing.

10. 1977 Kerala L T (Journal) 18.

Issac Ninan's Case

(P. C. Chacko, Senior Advocate, Ernakulam)

Issac Ninan's case reported in 1995 (2) KLT 848 was the subject matter of an article published in 1996 (1) KLT (Journal) 3.

The learned author, if I may say so with respect, has not viewed the question from the correct perspective.

In order to allay the doubts and misgivings expressed, in the article, these few lines.

The criticism of the judgment by the learned author is mainly on two grounds:

(1) The judgment ignored the possible socio-economic consequences of an abrupt explosion of the impugned provisions from the Rent Control Statutes in force in the State.

(2) The judgment did not consider the impact of the Supreme Court judgment reported in AIR 1988 S.C. 485 which found no unreasonableness in S.4 of the East Punjab Urban Restriction Act 1949 fixing fair rent as rent prevalent for similar houses in 1938.

On the first point what is stated by the author is that even though method of determination of the fair rent is unfair and unreasonable it would not have been taken as a ground to negate the very concept of fair rent. The concept of fair rent, according to the author is different and distinct from the mode of computation. The effect of the judgment, the author continues, is that the landlord would be more equipped to enhance the rent on their-own actions and desires as many times as possible without being controlled by any law or law courts. In the said circumstances instead of a total cancellation of the provisions, according to the author, what was required was a scientific modification in the method of determination of fair rent without opposing die socio-logical jurisprudence involved therein.

The decision in question dealt with the constitutional validity of Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Section 5 deals with determination of fair rent, the basis being property tax fixation by the local authority considering time of letting as basic year and ceiling on fair rent limited as per Section 5(2) viz. not more than 15% the monthly rent on the basis of which the property tax or house tax for the building prevailing two years immediately before the date of the application was fixed by the local authority. Section 6 imposes a ban against further increase of rent from what has been fixed by the court as fair rent except in one contingency where some additions or improvements or alternations, are made by the landloard to the building. Section 8 imposes a restriction on the landlord from claiming or receiving, or even stipulating for payment of rent in excess of the lair rent.

The Division Bench found that the combined operation of Sections 5, 6 and 8 of the Act is a gross invasion on the right of a landlord to carry on business. According to the Division Bench Section 6 of the Act is an unreasonable restriction on the right to livelihood envisaged in Art.21 of the Constitution, and an unreasonable restriction on the right to carry on business envisaged in Article 19(1)(g) of I he Constitution. In conclusion what is found is that Section 5 cannot stand alone without subsidiary and incidental provisions for periodical revision of the fair rent. The legislative scheme provided through Sections 5, 6 and 8 is package and are mutually dependent and interlinked. One provision therefrom cannot be separated from the others. It was in this view of the matter that the Sections 5, 6 and 8 of the Act put together was found by the Hon'ble High Court to be ultra vires the Constitution of India. The Division Bench also found that the provisions do not stand the test of reasonableness.

The possible socio-economic consequences of the abrupt expulsion is sufficient reason according to the author of the article for the Court to fold its hand even when the provision of law challenged is found to be unconstitutional and void. This statement of law apart from being incorrect, is also against the mandate of Article 13 of the Constitution. Article 13 of the constitution reads:-

"13. Laws inconsistent with or in derogation of the fundamental rights -

(1) All laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency, be void.

(2) The Slate shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of tins clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires - (a) "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) "Law in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of tins Constitution made under Article 368."

The object of Article 13 is to secure the paramountancy of the Constitution in regard to fundamental rights. The first clause relates to the laws already existing in force and declares that pre-constitution laws are void to the extent to which they are inconsistent with the fundamental rights. The second clause relates to post-constitution-laws and prohibits the State from making a law which either takes away totally or abrogates in part, a fundamental right. This clause further states that the enacted law to the extent of the inconsistency will be void. The object of the definition in Article 13 is to ensure that instruments emanating from any source of law-permanent or temporary, legislative or judgment or any other source, will pay homage to the constitutional provision relating to fundamental rights. At the same time clause (4) seeks to ensure that a constitutional amendment does not fall within the definition of law in Art.13 and its validity cannot be challenged on the ground that it violates a. fundamental right. It is the duty of the High Court, exercising jurisdiction under Art.226 and of the Supreme Court under Art.32 of the Constitution to declare the law as unconstitutional and void, if it, is found to be against fundamental rights. In case of such declaration it is the duty of the Government and the Legislature of the State, to step in to rectify anomaly if any, created by the courts declaration of the law. In all cases of anomalies consequent on Court declaration of a provision of law, as unconstitutional and void, the Government and the Legislature of the State had stepped in and that is the practice, in all these years, since the advent of the Constitution in 1950. The Court herein interfered with the present fair rent determination method, since the same is an inroad into certain of the fundamental rights of the citizen. It is not the function of the court to formulate and propound better and more scientific fair rent determination methods, while declaring a provision of law as void and unconstitutional. That is the function of the Government and the Legislature of the State.

That rent control legislation needs no change is nobody's case. Many features of Rent Control Laws in existence in various States have outlived their utility. The task therefore was of unifying, consolidating and amending the Rent Control Laws in the States and to bring them in tune with the changed circumstances. Recognising the negative impact and tension created by the Rent Control Acts in existing in several States in India, various Commissions have been set up at the Centre, Economic Administration Reforms Commission in 1980 and a National Commission on Urbanisation in 1985. Both these bodies recommended reform of the rent legislation in a way balancing the interests of both the landlord and the tenants and also stimulate future construction. The National Housing policy of Government of India envisages amendment of the State Rent Control laws for bringing uniformity of application throughout the country.

On the basis of series of consultations with State Governments and various experts, the Ministry of Urban Development had prepared a paper suggesting the basic features of the Model Rent Control Law. The policy paper was considered in the Chief Minister's Conference held in 7-3-92 in New Delhi, where the broad frame work of the Model Rent Control legislation was endorsed. In accordance with the decision thus taken, Central Government, formulated a Model Rent Law incorporating the views outlined in the policy paper endorsed in the Chief Minister's conference aforementioned. The Model Rent Control Law was in fact tabled before both the houses of the Parliament.

It is on the basis of the model Rent Control Law that Delhi Rent Control Act was enacted in 1995. States like Tamil Nadu, Madhya Pradesh and Maharashtra, have also carried out certain amendments in their Acts. Since Rent Control is a State subject the state Government and the State Legislature have the exclusive jurisdiction to legislate on the subject. By bringing forth Model Rent Control Law, the Centre is advising the State Governments to undertake enactment of amendments to existing Rent Control Laws or to enact new laws on the basis of the Model Law. The essential features of the Model Law in regard to determination of fair standard rent and its revision is as stated below.

B. Standard Rent

6.2. Substitution of multiple formula for fixing standard Rent (SR) by a simple formula, which will provide fair rate of return on the investment in the house.

a) Standard Rent (SR) to be fixed on the basis of 10% return on the cost of construction and market price of land at the commencement of construction. The rate of return can be varied by legislation. The Standard Rent so derived could be increased by a certain percentage from the year of construction to the present year to arrive at Standard Rent for given year.

To this Standard Rent are to be added charges on account of maintenance, taxes payable and amenities. The maintenance charge may be ten percent of the Standard Rent, that for taxes as per actual tax payable pro-rata and the charge for amenities as agreed between the landlord and the tenant subject to a maximum in relation to the rent paid. These charges are over and above the Standard Rent and do not constitute a part of it.

b) The new Standard Rent is to become applicable from the day the Act becomes effective. The permitted increases in Standard Rent would also be effective from the day the amendment permitting the increase in rent comes into effect.

c) The Standard Rent may be received every three years on the basis of criteria notified by the State Governments. Meanwhile, the Standard Rent to increase by a given percentage every year to be prescribed by each State according to rate of inflation, subject to adjustment at the end of three years according to CPI, The increase in Standard Rent will be automatic. Reference to the Rent Controller will be made only in case of disputes on the base rent.

The rate of increase could vary from city to city and can be higher for larger urban areas. Thus in cities like Delhi, Bombay etc. Standard Rent could increase by eight per cent every year, whereas for smaller urban areas, this figure could be five per cent or as the State Govt. may decide. The percentage of increase in Standard Rent may be higher in case of non-residential properties.

For must of the States in India, price increases over the past one to two decades have been in the range of 8%, 10%. This should determine the outer bound for prescribed increases in rent, since in smaller cities as well as in some parts of large cities, an increase of ten per cent may result in Standard Rent being higher than the market rent. Further the Rent Control Acts have also been used as anti-inflationary measures and rent increases equivalent to price increases may full the inflationary pressures. Under the current macro-economic scenario when the CP1 has crossed 14 per cent mark, linking rents with CP1 will lead to sharp increases in rents.

Extrapolating the current rents at 8 percent per annum, a rent of Rs.1500/- for a, two bed-room flat in a middle class colony in Delhi in 1991 will increase to Rs.2204/ by the year 1995' and will approximate Rs.3500/- by 2001.

d) The increases in Standard Rent for premises in non-residential uses may be at a higher rate.

(e) The new Standard Rent will be applicable to all old and new tenancies. The rent of the old tenancies with less than the specified rent is to be brought at par with the prescribed Standard Rent gradually over a period of five years in order not to impose a sudden financial burden on tenants. The State Government may decide to have a longer adjustment period and/or a lower rate of growth of rents of older tenancies to further lighten the burden on tenants. The level of neutralisation of rent may relate to the age of premises and lower rates of increases be used/adopted for earlier period. Further, the of neutralisation could range from 25 per cent for residential premises with less than 25 squares meters area to 100 percent for plinth area over 80 sq, metres and for non-residential premises.

f) Standard Rent is to be increased if landlord invests subsequently in the premises and the investment has been made in agreement with the tenant/s and it leads to significant improvement in the flow of services or amenities to the tenant/s. The increase in Standard Rent will be only in relation to expenditure incurred on construction by the landlord. The land price taken for calculation of the rent will continue to be the price prevailing at the time of initial construction and indexed upto the year of reconstruction.

g) Reduction in flow of services due to reduction in accommodation space or poor maintenance or deterioration in services will result in lowering of Standard Rent and the tenant can apply to Rent Collector for refixation of rent. The important principle is that while the tenant will enjoy security of tenure in controlled premises, he should agree to pay a rent that provides adequate return on investment and provides for proper maintenance and taxes, so that he does not enjoy an unfair advantage over the landlord. If at all the tenant is to be subsidized, it should be done by the State and not the landlord.

Standard Rent and Revenue Base of the Local Authority:

The revision of Standard Rent will strengthen the property tax base and augment the financial resource base of the local authorities for who property tax is a major source of revenue.

The above is a ample 'illustration for the non-continuance of the derogatory provisions in the Rent Control Statutes, in force in this State.

On the second point the author of the Article is not correct in thinking that the judgment reported in 1988 S.C. 485 is decisive as regards the issue in question.

He is also not correct in thinking that as and when fair rent fixation application comes up for determination the temptation will be to look in obedience to the said Supreme Court Judgment. On the contrary the said Supreme Court Judgment is no answer to the problem considered by the Division Bench in Issac Ninan 's case,

The Supreme Court opens the said judgment by stating as follows :

"It must, however, be mentioned that the petition is lacking in particulars as to what premises the appellant owned and in respect of which premises the appellant is making the grievances. On tin's ground it is not possible to decide the question of vires canvassed before the High Court and repeated before us. A petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vaccum. The essential facts necessary to examine the validity of the Act are lacking in this appeal. On this ground the petition was rightly rejected and we are not inclined to interfere with the order of the High Court on this ground alone." Section 4 of the East Punjab Urban Restriction Act 1949 was the provision under challenge before the Supreme Court. The said Section is quoted in extenso in the said judgment. On the materials available on record, the Supreme Court dealt with the matter as follows :

"Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory or different. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different. Art.14 can have no application."

"It must be the function of the legislature of each State to follow the methods considered to be suited for that State that would be no ground for judging the arbitrariness or unreasonableness of a particular legislation in question by comparison. What may be the problem in Madras may not be the problem in Punjabi It must however, be borne in mind that the Act in question was passed in 1949 and it pegged the rent prevalent in the similar Houses in 1938 and as such is not unreasonable per se. The rises stated tremendously after the end of the Second World War after the partition of the country. In that view of the matter, we cannot say that per se, there is unreasonableness in fixing the prices in 1938 level. Having regard to the specific preamble of the Act we find nothing unreasonable in the Scheme contemplated under Section 4 of the present Act." (from page 488 of the report).

It may be mentioned here that as per S.4 of the East Punjab Urban Rent Restriction Act permissible increase i.e., increase from 8 1/2% upto 100% on the basic rent depending on nature of tenancy is permitted unlike in the case of the Kerala statute, and this circumstance was also taken into account by the Supreme Court for finding Section 4 not unreasonable.

The Division Bench of the Kerala High Court held Sections 5,6 and 8 invalid not solely on the basis of the arbitrariness of these provisions but on the basis of Article 19(1)(g) and 21 of the Constitution. In the Supreme Court judgment, validity of Section 4 East Punjab Rent Restriction Act was considered only on the ground of arbitrariness. Relevant materials and necessary statistics essential to substantiate the infringement as per these Articles of the Constitution were available to the Division Bench unlike in the case of the Supreme Court matter. It is on the basis of those facts and circumstances the Kerala High Court Division Bench decided the case. The Division Bench found that living on rental income is business. Right to live being a fundamental right, to deprive a person of his livelihood by restrictions imposed by Section 5,6, 8 of the Kerala Rent Control Act is found unconstitutional and void under Articles 14, 19(1)(g) and 21 of the Constitution.

Section 34 of C.P.C. - To be Amended

(By P.S. Vasavan Pillai, Advocate, Trivandrum)

If Section 34 of the Code of Civil Procedure 1908 is amended suitably, pendency of cases in the Execution Courts can be brought down substantially.

Out of the pendency in the Execution Courts, a good percentage belongs to 'money suits'. Number of money suits in the Execution Courts swells up because of the low rate of interest stipulated in the above section.

At present as per the above Section 34, interest at the rate of a maxi mum of 6% per annum on the principal sum alone is needed to be paid by a judgment-debtor after the decree is pronounced. Many debtors make undue advantage of this provision. They can afford to delay the payment of the decree amount to any extent. If delayed, it will be only to their advantage. The decree amount they can lend to needly persons and can realise from them interest at any rate. In turn they need pay only 6% or less to their creditor (decree holder). They need pay the low rate of interest on the principal sum alone while they can get high interest for the whole of decree amount which will be invariably bigger than the principal sum.

If the debtors (Judgment-debtors) have to pay a high or reasonable rate of interest On the decree amount, they will try to clear the liability at the earliest.

Therefore it is desirable that the Parliament raises the rate of post decree interest in money suits to a reasonable percentage. Interest must be made payable for the whole of the decree amount and not for the principal amount alone.