Death - the Enigmatic Phenomenon in the Medical Science

(By V.K. Babu Prakash, Judl. First Class Magistrate, Karunagappally)

The point of time of death of a human being is important in the field of Medical Science. This is more important in the branch of Medical Jurisprudence and Toxicology because the point of time of death is vital in the case of a homicidal or suicidal death. The medical science is very much developing in the area of Pathology, Serology, Sistology regarding transplantations of human organs and tissues. The transplantation of kidneys from a body which still has a beating heart, is much more likely to be successful, the point at which death can be said to have occurred becomes a matter of critical importance. Even where kidneys are removed after cessation of the circulation, the shorter the interval, the better the chances of success. It thus becomes of prime importance to agree upon criteria for death. Where heart, lungs, liver etc. are to be transplanted, it is essential that beating heart donation is performed. Tissue donations are taken from patients with irreversible cerebral damage, who cannot recover brain stem functions. Everybody knows of the fact that cessation of spontaneous respiration is an absolute pre requisite without which no donation would ever be made from a person with spontaneously functioning heart and lungs, even if it could be shown that his cortical activity was irreversibly absent. Where spontaneous respiration has ceased and oxygenation is maintained only by mechanical means, the point at which death is declared can be a very variable point in time.

Philosophical and religious interpretation of the process of death is not the way out in Medical Science. Of course, the subject of death was a brain scratching enigma for many thinkers, philosophers, writers and scientists of the past centuries and present. In the branch of Biology, Medical Science, Microbiology, Genetic Engineering much research had been done about the cause of death and its point of time in the human faculty which exactly puts out the lamp of life. Death means the complete stoppage of the functional system of a living being in simple scientific terms. Equally also, there is no legal definition of death in India, the determination of death being left to the decision of individual doctors. A few countries have a statutory definition of death, mainly because of the problems associated with transplantation of organs and tissues. But India like United Kingdom leaves the diagnosis of death to the individual doctor. This in many way is more satisfactory as it allows some flexibility and does not give rise to problems of interpretation when strict legislation is applied to such a difficult matter.

Though in many advanced countries, a doctor always has to determine the fact of death and to certify its cause or refer it for medico legal examination, this is not a practicable proposition in much of the parts of India, where most deaths occur outside the immediate availability of a doctor's attendance. However, in cases where a doctor is regularly in attendance upon a patient, such as in hospitals and in urban areas, he should always make an effort to see the body after death and to satisfy himself that death has occurred, whenever possible coming to some decision as to the cause of death. Naturally, when any suspicion exists, the matter can be reported to the Medico Legal Authorities.

As such, death is not a fixed, simple phenomenon. Indeed, a definition of death is very difficult to attain. The question was largely academic in the past. Yet when the time passed on the question of death needs an answer in the definite manner. Death can be analysed in the following manner:-

(1) The person in question may be considered dead in some respects if although his cardio-respiratory system is still functioning, he is unconscious and is irreversibly beyond any return to consciousness.

(2) The main cardio-respiratory functions of his body have ceased.

(3) The actual peripheral tissue cells of his body have become non functional.

The above analysis can be summarised into two categories. That is to say:

(a) The person in question has a somatic death in which the person is dead in that he is irreversibly beyond ever again being an integrated, functioning human being;

(b) He has a cellular death, in which the basic cellular units of his body have ceased to function.

Still again, a person has permanently lost consciousness and is not responsive to any stimute, he may be said to be in a state of brain stem death. If in this state, his respiratory centers are functioning spontaneously, he is in a vegetative state. If they are not, he is brain-stem dead. In the latter context major transplantation techniques are contemplated, as although he is irreversibly beyond communication with his fellowmen, his organs are still being perfused with oxiginated blood because of the artificial support of his cardio-respiratory systems. In otherwords, he may be thought of as a heart-lung preparation being. It is at this point of situation the matter of moral, philosophical and religious argument appears as to whether he is dead or alive. Various religious and philosophical thoughts formulate the argument that the person is not dead at all. However, in advanced medical science, it is being increasingly accepted that such person is dead for the following facts:-

(a) Expensive supportive equipment and medical nursing case should not be wasted upon him, especially if it is being diverted from the treatment of potentially curable patients.

(b) Such brain stem dead persons are potential donors for the benefit of other sufferers.

The key to open up the field of enigma is the argument of irreversible. Unfortunately it is not easy to determine whether such brain stem death is irreversible or not and various schemes of examination have been devised to determine whether it is safe to assume that consciousness may ever be regained. So death means different things to different people. When all sentient cerebral activity ceases, never to return, then the person is socially dead, in that he can never again communicate with his fellowmen, is unaware of their existence or indeed of his own existence. It is only when the degree of brain death is sufficiently wide spread that basic functions like control of respiration, brain stem reflexes, and carnial nerve functions are lost, that death in its ultimate degree in inevitable and organ donation becomes a possibility. Loss of the power of spontaneous breathing used to be an imminent potent of total death, out with the technical advances in mechanical respiration, this is no longer so, the heart function becoming the next most vital criterion. Even this is now within the ambit of artificial support, but in cases where irreversible brain-stem death has occurred, it becomes unethical to continue mechanical respiration, let alone circulation. Following respiratory and circulatory death, then cellular death follows in a matter of minutes for most tissues though some relatively vascular tissues may remain viable for a considerable time.

So the conclusion does not resolve the enigma of death. The concept of death is still a different process to different people. To the kith and kin it is the loss of a favorite and precious being, to the medical scientist it is the stoppage of the functional system, to the philosopher and thinker it is the renouncement of the soul from the temporary shelter of a body, to the legal practitioner it is the undefined word in the statute of a code.

Contempt Power - Cipherise its User

(By Mr. Justice V.R. Krishna Iyer)

'Contempt of Court is the Proteus of the Legal World, assuming an almost infinite diversity of forms'. Born obscurely in England it has spread to the U.S. and other common wealth countries. But indeed, says Ronald L. Goldfarb : "But, indeed to the lawyer from a non-common-law country the contempt power is a legal technique which is not only unnecessary to a working legal system, but also violative of basic philosophical approach to the relations between government bodies and people. Neither Latin American nor European civil law legal systems use any device of the nature or proportions of our contempt power. While critics of these systems may make preferential comparisons, so long as these countries keep well within anarchy on the one hand and totalitarianism on the other, there is room to question whether indeed this power is as necessary and essential as our decision-makers suggest."

It can be fairly concluded that the powers of contempt, which are now exercised in the United States originally, were adopted from English common law. The inconsistencies and inappropriateness’s came to as part of the inherited common-law package. Though times have changed, as have political climates, the power has remained, in fact increased. Paradoxically, the legislative contempt power has played a lesser role in modern English practice, while the American offspring has grown to proportions more extreme than its parent. This blind heritage, in the hands of irresponsible power holders, could create the anomalous result of kingliness in a government which was conceived to establish the sovereignty of men.

The same author, in a detailed study, observes that the power of contempt itself "is, perhaps, nearest akin to despotic power of any power existing under our form of government'. Some call this totalitarian, others regard its absence would lead to anarchy. Yet others have opted for a middle ground. Justice Black (U.S.) is fiercely opposed to this balancing device, a constitutional inroad into the First Amendment of Free Speech and is apt to be absolutist. Indian law is a simian version of British precedents. We, unlike the British have a written Constitution. Still due process or procedure which is "just, fair and reasonable" (Maneka Gandhi's case) is thrown to the winds in contempt cases because the prosecutor and judge are the same and absence of bias in such cases is often an illusion since judges are human. Justice Black wrote in the Green case:

"When the responsibilities of lawmaker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartially on the guilt or innocence of the accused. He truly becomes the judge of his own cause. The defendant charged-with criminal contempt is thus denied... an indispensable element of the due process of law".

In the U.S. "Now, the Federal Rules of Criminal Procedure provide that: "If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent".

Goldfarb adds: "The Supreme Court has often noted the human qualities of judges, by which they, as others, are subject to such fallibilities and frailties as anger, petulance, and even vengeance. Whether judges are made of sterner stuff than other men and are consequently better able to withstand the natural evocations of human emotion, has been debated many times and in many contexts. "Surely, in such cases the casualty often is the principle stated by Justice Frankfurter "These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice."

American judicial liberalism has encouraged healthy criticism and democratic protest when the highest court has provoked popular outrage by unpopular rulings. Strange but true, if Goldfarb be correct, the US "Supreme Court has only once exercised the contempt power."

This power has, as earlier stated, English origin of regal middle ages, obsolete and obstructive in the modern democratic order. Our Judges and legislators are not delegates of royalties of feudal England and 'alleged divinely ordained monarchies,' a relic of the Star Chamber. The King is the fountain of justice and has delegated it to judges. So contempt of court is a challenge to the King's wisdom. "This is a most fatal obstruction of justice, and calls for a more immediate redress than any other" (Sir John Fox). If such be the genesis of contempt jurisprudence it is utterly allergic to the Indian Republic which became a democratic reality of "We, the People of India" after they demanded the British royalty to quit. The present law of contempt is of colonial vintage and so our Courts, like the American, must restructure it to suit the ethos of the Constitution and functionally fit the values of free expression and other fundamental rights.

Thomas, in his book Problems of Contempt of Court, neatly summarises the history thus:

"The present law of contempt in this country as been founded... Upon the statements of Blackstone in his Commentaries and Sir John Eardley-Wilmot in King v. Altnon which concerned a contempt by publication. Oddly enough, neither of these authorities forms a legal precedent, for the opinion of justice... Wilmot was never delivered, as the case was dismissed because of technical difficulties. It also appears that in all probability the statements made by Blackstone merely represented the views of Judge Wilmot, and that it may be said that the present scope of the summary power is due almost exclusively to the opinion of one man.

By the twentieth century, the law of Wilmot had, like fine wine, aged to the point of unquestioning respect. English Courts adopted the Almon decision, cited it, and extended it beyond even Wilmot's probable intent".

This almon-phenomenon of hoary England should no longer haunt the Indian jurists. It is necessary to protect the judicial process and institution from scandalisation or contumacious violation. But this must be according to democratic principle, not authoritarian hubris, lest the citizen's basic rights be destroyed by judge's wrath. Justice Black in the Braden case, wrote about the balancing device between free speech and contempt of court, that the dangers to democracy are best fought in the free market place of ideas, associations, and petitions, and that punishment, directly or indirectly, of these freedoms is the way to national self-destruction. He added: "There are grim reminders all around this world that the distance between individual liberty and firing squads is not always as far as it seems."

Hyper-sensitivity and peevishness have no place in the halls of justice while the wages of vicious stultification and vulgar debunking of judges may be punitive gravity.

The English Law is vegarious despite Lord Denning, in his delightful book (everyone of his books is) What Next In the Law, vide the subtitle at Page 328 'Denning is an ass'. In protesting against an observation by Lord Denning from the Court of Appeal the press made noises. But Lord Denning was not moved by the hostile abuse.

Mr. Michael Foot said, 'Denning is an ass'. The Observer came out with a headline, 'Why Denning is an ass'. The Times, more sedately, said, 'Lord Denning, this time' is on the wrong side... The Court of Appeal has done a disservice to the cause of press freedom'. When the House of Lords upheld the Court of Appeal, the Times denounced their decision, describing it as 'A Charter for wrongdoing', and added: 'The decision of the House of Lords in the Granada Television case is restrictive, reactionary, and clearly against the public interest.'

To my mind these attacks by the newspapers on the judges are an abuse of their power. At one time the judges might have launched a counter-attack. They were impatient of criticism and would have accused the media of contempt of court. But this is out of date. We stated the modern principle in a case where we were criticised by Mr. Quintin Hogg QC (as he then was):

"It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication."

The new trend in England is to overlook even intemperate criticism. Willmot, J. is dead and so too his regal ratio in Almon. We must, worthy of our Republic and the glory of the Preamble, expand people's freedom and ignore barricading of the regal dignity of the judiciary, save in outrageous cases. This applies some times to judges who insult other judges through their judgments and by cynical observations from the Bench. Exaggerated application of Indo-Anglian heritage of contempt law is of withered Wilmot vintage and unconstitutional, if the basic structure of social justice and free speech were paramount, and they are. 'Contempt' will still survive if the concept is confined to just limits, excluding reasonable criticism, though unpalatable and defense by truth since refusal of the plea of veracity is arbitrary in a democracy with Satyameva Jayate as the national motto. To bang and bar and bolt the door of truth is totalitarian and violative of sensitive justice. Contempt law is not ultra vires but its scope, circumscription and salutary parameters must not exceed constitutional prescriptions out of megalomania or infantile vanity. Ours is not simian jurisprudence but Indian in essence and tuned to the Third World ground realities and critical of 'Westoxicated' elitism.

I had dwelt on the Almon case, along with Bhagavati, J. and repelled the kingly basis of contempt law while going closer to the people-oriented approach of the U.S. Justice system. "This shift in legal philosophy will broaden the base of the citizen's right to criticise and render the judicial power more socially valid. We are not subjects of a King but citizens of a republic and a blanket ban through the contempt power, stifling criticism of a stategic institution, namely, Administration of Justice, thus forbidding the right to argue for reform of the judicial process and to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law and justice, may be tall order. For, change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic government. The judicial instrument is no exception. To cite vintage rulings of English Courts and to bow to decisions of British Indian days as absolutes is to ignore the law of all laws that the rule of law must keep pace with the rule of life. To make our point, we cannot resist quoting Mc Whinney, (Canadian Bar Review (Vol. 45) 1967, 582-583) who wrote:

"The dominant theme in American philosophy of law today must be the concept of change-or revolution - in law. In Mr. Justice Oliver Wendell Holmes' own authorism, it is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. What we have, therefore, concomitantly with our conception of society in revolution is a conception of law itself, as being in a condition of flux, of movement. On this view, law is not a frozen, static body of rules but rules in a continuous process of change and adaptation; and the judge, at the final appellate level anyway, is a part - a determinant part - of this dynamic process of legal evolution. This approach must inform Indian law, including contempt law." We cannot resurrect the Star Chamber. "A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on contempt power must be delineated with deliberation and operated with serious circumspection by the higher judicial echelons. So it is that as the palladium of our freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage - a delicate but sacred duty whose discharge demands tolerance and detachment of a higher order. The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate." (Douglas, J., Craig v. Harney: (1947) 331 U.S. 367, 376).

"Judges as persons, or Courts as institutions, are entitled to no greater immunity from criticism that other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used die paraphernalia of power in support of what they called their dignity. Therefore, judges must be kept mindful of their limitations and their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt." (Frankfurter, J. Bridges v. California (1941) 314 U.S. 252, 289)."

Lord Atkin's celebrated ruling about justice being not a cloistered virtue is sufficient to ignore unhappy language, which may pique a judge. Lord Denning, when criticised unbecomingly by Quintin Hogg (later to become Lord Chancellor Hailsham declined contempt action.

In Mulgaokar's case (1978 SC 727) I wrote a separate judgment stressing, inter alia, the following principles (quoted from the headnote). "The fourth functional canon which channels discretionary exercise of the contempt power is that the Fourth Estate which is an indispensable intermediary between the State and the people and necessary instrumentality in strengthening the forces of democracy, should be given free play within responsible limits even when the focu of its critical attention is the court, including the highest Court.

The fifth normative guideline for the judges to observe in this jurisdiction is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified hearing, condescending indifference and repudiation by judicial rectitude."

A ruling which settles the bounds of this branch of law is that of Savyasaji, C.J. in Sivasankar's case (1988 SC 1208) "Administration of justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office." Excerpts from the head note are adequately instructive. "It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar's wife must be above suspicion per Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court (1974) 1 SCC 374: AIR 1974 SC 71Q). It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the Court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remediless evils, which Courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the Judges and lawyers must make about themselves."

The least dangerous branch, as the judiciary is often described, may become the most dangerous if for every passing pejroative hint or even strident criticism or truthful aspersion, the Judge hides behind contempt law. In that event Lord Atkin, for his cynical criticism of his colleagues in Anderson's case President Roosevelt, Prime Minister Nehru, Judge Learned Hand, Judge Jerome Frank, Winston Churchill and surely Karl Marx, Lord Denning himself, the authors of the Brethren, David Pannick (his book Judges) and myself, of course, plus a few distinguished journalists must now be in prison. No doubt Shakespeare is a 'contemner' Harold Laski, Prof. Griffith, and several other greats mentioned by David Pannick QC in his marvellous book Judges are culpable, if contempt law were not drastically read down Even Jesus and Gandhi may be liable.

India has a Constitution with positive values like the right to life, free speech and other fundamentals for the millions in misery and struggling for liberation. The Court is one of the protagonists in the transformation process. When it flags or drags or retrogrades, its functional floundering falls for criticism. Judges are not bulletproof against public criticism based on facts. Why? Judge Jerome Frank gives the reason in his great book: Court on Trial: "I am unable to conveive... that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions... The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our Courts."

In the words of Lord Justice Salmon 'the right to criticise the judges ... may be one of the safeguards which helps to ensure their high standard of performance'. The position is plainly democratic in America: "In 1941 Mr. Justice Black for the Court reminded everyone that 'the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however, limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect".

India should welcome free speech, especially on public issues, macro-projects and policies of deep import to the people. An informed criticism, whether the President governors, judges or ministers or generals or technocrats are disparaged or not, uninhibited by any bogey or bully, is not only desirable but must be encouraged. A dark democracy or ignorant citizenry, scared by contempt is disservice to the Republic's progress. 'Know ye the truth and the truth shall make you free'. Maybe, to suppress truth by contempt threat will embitter people, induce a clash between totalitarian courts and terrorist right to transparency. A developing democracy needs more speech, more communication, even if a judicial process is pending. Enforced silence may not enhance respect for the Court. To jettison freedom of expression in the name of immunising fair judicial hearing is poor compliment to justices as if they are so soft and feeble as to be swayed in their judgments by passing media winds. Are American robes made of sterner stuff? Archibald Cox (Court and the Constitution) writes: "The First Amendment now protect press comment on matters sub judice no matter how strident the effort to rouse public pressure to influence the course of justice." Public justice - justice, justicing, and justices - is not pressilanimous, altho' scandalising or scoundrel behavior deserve severe sentence.

Indulgent eyes blink at contempt save in grave cases or shocking conduct -rare, except when judicial conduct or character deteriorate or turn corrupt and no remedy is provided for. Sooner a measure of grievance redressal against judicial delinquency the better for the judges. "As people grow ever less willing to accept unreservedly the demands of authority, the judiciary, like other public institutions, will be subjected to a growing amount of critical analysis. The way in which 'Judge and Co.' is run is a matter of public interest and will increasingly become a matter of public debate (David Pannick). The Indian judicature has every reason, (with marginal though slowly escalating, culpables creeping in) to be proud of the quality (not yet quantity) of their performance and so, there is no reason to fear bona fide criticism. Judocracy must not be an imperium but must intrepidly eliminate corrupt, mafiasque elements and vested interests pollutive of public interest. Then, only then, the least dangerous branch (the judiciary) will rightly be regarded as the most extraordinarily powerful Court of law of our land. Democracy, without a great judiciary, is proximate to slavery.

A final thought. Judges also make grave mistakes though the occasion may be few. They are not beyond criticism although such an impression of being beyond it has been created. Far too long is the truth of this lie been kept away from the public. It is time to tell the people that the independent inestimable judiciary is also part of our great democracy.

Human Element in Rajiv Judgment

(By Justice K. Sukumaran)

1. Eight years back a gruesome tragedy plunged the Nation in an encircling gloom, Rajiv Gandhi was assassinated. A human bomb did if A leader was leaning to receive a poem of a young girl, Kokila. Another girl- Thanu- rushed forth with a garland in her hands and a bomb around her belly. The battery flashed and there was a blast. The blast took a heavy toll. Eighteen bodies went up in smithereens. Many felt doomed to an eternity of sorrow to waste themselves away in an ever running fountain of tears. A case was charged. The trial went on. The verdict was given: twenty six to be hanged. There was an appeal to the Apex Court.

2. A few days before the 8th anniversary of the tragedy, the final verdict of the Supreme Court was pronounced. There were 26 appellants-accused. Court Hall No.9 of the Supreme Court was specially arranged for storing safe and secure, the massive records of the case. A three Judge Bench heard long arguments in the case. Mr. Natarajan, counsel for the accused performed a rare feat with admirable forensic skill. Mr. Sivasubramaniam substantially supplemented the submission. Justice K.T. Thomas presided over the Bench which included Justice D.P. Wadhwa and Justice S.M. Quadri.

3. On 11th May, 1999 the Supreme Court pronounced the judgment. There was consensus about the conclusion on conviction. The dissent in approaches and on the sentence, elicits apprehension and provokes thoughtful responses. The silver line in the dissent is the lusture of human element which illumines it all along the legal lines and the vast factual background, as revealed in the judgment of Justice Thomas. The judgment spans a space of 162 pages, compressed in 380 paragraphs and is couched in elegant style. It has a neat arrangement for the disciplined thoughts.

4. An introductory background is always helpful on such occasions. That is admirably done. The political developments in the two neighbouring countries of India and Sri Lanka and the administrative fallout are brief y but beautifully sketched. A painting with a broad brush!

5. Care has been taken to clear the ground by indicating the direction and dimension of the legal principles, which have close bearing and direct application. The difficult terrains of TADA Act are covered in paragraphs 43 to 94.

6. Confessional statements have special significance under that Act. The complex questions are analysed deftly and reconciled cogently in 15 pages from 84 to 108.

7. Conspiracy is an elusive concept. Confusion can be unfounded when a seemingly simple provisions like S.10 of the Evidence Act dealing with 'things said or done by a conspirator in reference to common design' is to be applied to the facts of a case. The cob webs are skilfully cleared. The legal position is, after compressed discussion, summed up in paragraph 121.

8. A human approach is discernible in Justice Thomas's judgment as regards the approaches in the interpretational exercise. He did not caw an assent to the majority judgment. In some areas, it is a dissentient voice: yet it has the impress of a larger perspective, which heralds for good for any civilization. The clanking of medieval chains is not an unfamiliar sight in the path of justice. As Lord Atkin put it, "the duty of the Judge is to pass through the correct path undeterred". Atkin's dissent in Liversidge's case involving personal liberty became the approved law of England, later, personal liberty had its glorious height when that happened. India has a similar experience. The dissent of Justice Mathew as Judge in Kerala became the foundation of a basic principle in administrative law as laid down by the Supreme Court in Shetty's case. It can be a safe prediction that Justice Thomas's views will be the law of the land in years to come.

9. A more arduous duty was to follow: consideration of the individual cases: it starts at para.122 and terminates at para.353. Conviction was sustained as regards seven. The discussions are worthy of separate treatises. Some obvious aspects cannot be missed even by casual eyes.

10. A tragedy is unfolded in para.122 to 149 of the judgment.

11. Nalini is the most unfortunate among the tragic characters, in one sense. She was the daughter of daughter of Padma. Her brother had a name indicative of unlimited fortune-Bhagyanathan. Almost like Tagore's Subhashini who was mute, Nalini obtained a Master's Degree: and was gainfully employed as Private Secretary of the Managing Director of a business concern of Chennai. In normal course, a life of present pleasures and great expectations. Events took a different course, however.

12. A backlash of frighterning waves of a disturbed area had fatal consequences all along the frontiers of two friendly countries. It corroded the ancient friendship. The ethnic Tamil minority felt insecure. The Heads of the two countries made earnest efforts to find solutions for the vexed problems. The attempted solutions turned out to be worse than the pre-existing problems! The accord of 1987, the movement of I.P.K.F., and the stories of the endless suffering as felt by the people of Tamil origin, the alleged rape of seven girls and the death of 12 persecuted persons and the stories of endless atrocities upset the mental balance of the affected persons. They felt some relief when a political change in India made V.P. Singh the Prime Minister. The happiness arising from a differing and helpful approach of the new Government was, however, short lived. The Ministry did not last long. The same was the fate of the successor government of Chandrasekhar. That led to the elections of 1991. The Congress manifesto was alarming to the LTTE. A threat of the return of IPKF. Rajiv was giving lead to the election campaign. The anxious hearts got choked with anguish.

13. There was a panoramic range of prejudice in the Srilankan island. Condition was most suitable for sowing and nurturing a draconian seed of conspiracy, A conspiracy, not against India, as finally found by the Supreme Court. No one desired to strike fear in the Indian Government or in the Indian people. The conspirators did not desire the death of anyone other than Rajiv. And Rajiv at that time was neither Prime Minister nor even a member of Parliament-facts which had their legal consequences, as lucidly explained in the judgment.

14. There was nothing to show that police was the kill-target True, photographs had been taken of Fort St. George, and of strategic installations in Veil ore like the Jail and Police Head-Quarters. These fell short of the requisite evidence to establish an intention to disrupt the sovereignty of India.

15. The facts proved in the case did not measure up to the requirements of TAD A, the stringent legal measure intended to save the country from a grave danger of an earlier time. There was massive evidence to establish offences punishable under the worst crime of murder and cognate offences. Death penalty, imposable in the rarest of rare cases, would be appropriate in the case of four conspirators, among whom were Nalini and her husband Murugesan.

16. Human element played a prominent part in the conclusion of the Court that "none of the conspirators can be caught in the dragnet of Sub-s.3 of S.4 of TADA". The influence of human element exerted in the reasoning process is evident from the finding recorded in para.43 that the Amendment of TADA Act, in 1993 "was clear climbing down from a draconian legislative fiat which was in the field of operation". The same concern is visible in the reiteration of the legal axiom that confession is a weak evidence.

17. The human approach surfaces again in the course of the discussion on sentence. There again, Justice Thomas has moved along a different path. Not at all slushy. It has well defined contours and a sturdy ground base: Humanism.

18. Justice Thomas was born in the princely state of Travancore. The enlightened territory of Travancore had shown additional consideration towards woman, even when she is guilty of a grave crime. This enlightened mentality of the area is not a recent discovery. The first Prime Minister of India, in his 'Discovery of India', pointedly referred to this glittering territory at a time when many areas in England and Europe were still languishing in illiteracy. The sentiments are presented with fascinating finesse. Rocklike is the logic, embedded in philosophy, principles and precedents. Distilled ideas on human element spread their fragrance. What has emerged from the white heat of discussions is pure gold! "Blessed are the merciful, for they shall obtain mercy" is an enduring Biblical message, Shakespeare elaborated the idea when he wrote the lines

"The quality of mercy is doubly blest........."

Justice Krishna Iyer, handing down the verdict of the Supreme Court in a sensitive case, used a haloed term, 'Karuna of the Law". People of Kerala, particularly the older generation, who had read the poem of Asan under that name, can appreciate in of that virtue. The drops of tears on whi fell from the Buddhist monk on a female face in flames symbolise the 'Karuna'. Justice Thomas, it can be safely inferred, had such an inherited refinement of human element, in his perception and pronouncement. That is amply demonstrated in page 161.

19. Look at the reasons. The primary one is that Nalini belongs only to the 4fh category among the conspirators - those who committed murder, not the hard core nucleus which took the decision to assassinate Rajiv; nor to the group which induced others to join the crime, nor those who joined the conspiracy and induced others as well. The fact that Murugan fell within the category deserving the extreme penalty of law is thereafter adverted to. He was in the leadership layer, and had brain washed his wife to implant hard core prejudice. She had heard that those who attempted an escape from the group had done so at their peril. Infliction of death penalty on Murugan indirectly generates other human problems. Further complications arose as a result of the marriage Nalini had with Murugan and the birth of a girl child while in prison. With the death of Murugan, an innocent girl in her infancy is partly orphaned. If the mother too is to leave her, the child will have to carry sorrow's crown of sorrow, throughout her life; for the hand that rocks the cradle would irretrievably disappear.

20. Disciplined thoughts on the floor of the Assembly, referred to Human Rights and the nobility of humane treatment. The judgment of Justice Thomas has imbibed the soul and spirit of this human element. It reveals a selective sleight of mind that every judge recognises and some possess. That flash and that light in the judgment, add to it a unique charm and a dexterous design.

21. An immemorial custom was in exercise in the Travancore territory. It exempted women of all classes from capital punishment. There was a prohibition against the award of capital punishment to more than one person convicted of the same offence. These customs or local usages had been statutory salvaged when a century back, the Travancore Penal Code was made. The background of such a Legislative mode for the custom is gatherable from the comments given at page 679-81 pages of Regulation and Proclamation of Travancore published in 1928. Here is one extract:

In Criminal case No.27 of 1945 on the file of the Alleppey Sessions Court, 3 persons were found guilty of having jointly committed a murder, but only one of them was sentenced to death, the other two being sentenced to imprisonment for life. The British Resident to whom the proceedings were sent up in the usual course, expressed his opinion that, as all the three were equally guilty of the offence of murder, they should have all being sentenced to death. In reference to the above expression of opinion, the late Sadr Court observed:- ‘We agree that these prisoners (2nd & 3rd) are guilty of the offence of murder as much as the first. In this State, however, it appears to have been a long established practice not to insist on the sacrifice of more than one life for a life taken, whatever be the number of persons who may have been actually engaged in the commission of the deed: and we may add our opinion that the restriction thus established by usage is not altogether unwise. If capital punishment is a necessary evil which modern legislators are endeavouring to mitigate by proposing a substitute of less lawful kind, it may be presumed that the usage of this Sirkar cannot be much at fault in confining the extreme penalty to the chief of a number of joint authors of the crime". The Resident after considering the matter in the light of the above observations stated:- "The Resident is glad that he does not feel bound to recommend any alteration of the Sadr Court's sentence".

"The question of the existence validity of this custom came up for consideration by the High Court in a recent case (Referred case No.5/1071). In that case the Session Judge of Nagercoil sentenced two persons concerned in the same offence to death. The High Court in their judgment observed:- 'According to the custom of Travancore, subject to which we are bound to follow the provisions of the Penal Code, no more than one person could be hanged for the murder of one person'. They accordingly altered the sentence of death passed on one of the prisoners into one of imprisonment for life".

"Thus the council will see there is no doubt as to the existence of the custom. Of course it is not for us to enter into any academic discussion on the justice or propriety of capital punishment. All that we have to consider is whether sufficient reason exists for modifying this long established custom. I do not think anyone will be prepared to contend that this custom has been productive of any practical harm or that it has prompted or promoted crime."

"It may be argued that the amendment is defective, in as much as it lays down no definite rule or direction for the guidance of the Courts in selecting one out of a number of convicted persons for the extreme penalty of the law. There may be cases in which two or more persons may have jointly and equally compassed the death of a man by simultaneously shooting or stabbing him, and medical evidence may show that each separate wound is sufficient to destroy life. The argument, I must confesses not without force. But it appears to me that, though the injury inflicted by each may be equally deadly, there may be other circumstances to guide the judge in performing the undoubtedly very delicated and difficult task of choosing one for the extreme punishment. In almost every case, one person will be found to be at the bottom of the transaction-the promoter, the originator or the organiser-the others being merely his tools. It does not appear that, though the custom has been hitherto strictly followed here, any difficulty has arisen in practice. I think, therefore, I may safely assert that the difficulty apprehended is not of a magnitude to justify a departure from an immemorial and, if I may be permitted to say so, human custom in this Land of Charity".

22. The Travancore Legislative did not overlook the penal provisions of British India. Yet, they did not hesitate the continue the custom of the territory of Travancore. This is evident from the passage. In the Penal Code, death.... the only punishment for the offence of murder. There is the alternative punishment of imprisonment for life, so that it is open to the Judge to sentence a man convicted of murder to imprisonment of life, except where the culprit is already under sentence of imprisonment for life. I believe in British India where there is no such custom, instance of sentence of death being passed on more than one person for the same offence are extremely rare. "That shows that the amendment I propose would not make much practical difference."

23. The custom and its protected statutory form, which saved the women from the gallows and the noose, was the law of the area till its obliteration by the Indian Penal Code in 1951. There was only a solitary occasion when the special treatment accorded to the female segment came up for critical judicial comment. That was i n Parameswaram Pillai v. Sirkar 25 Travancore Law Journal 337 (decided on 18.2.1935).

It is significant that only one Judge, Justice K.K. Chacko, was INIMICAL to the favourism shown to the females. The milk of kindness did not obviously curdle his heart. Here are his own words:

"The authors of the Penal Code felt "that there are some peculiarities in the state of society in this country which may well lead a HUMAN MAN to pause before he determines to punish".... In Justice Thomas, the HUMAN MAN is seen.

The constitutionality of S. 497 was upheld by the Supreme Court in Sowmithri Vishnu's case (1985 Crl. L.J. 302(SQ).

As long as the law in Travancore recognises the necessity and expediency of capital punishment I fail to see any principle of law which would differentiate between the case of a man murderer and a woman murderer. The one is as deserving of death as the other. It is notorious fact that in some cases women can go to lengths from which a man many shrink. Anyway, there is no principle of law or jurisprudence which can draw a line of distinction or difference between the two cases. I am not aware of the law of any country except Travancore where such a distinction between man and woman is made and I see nothing in the conditions prevailing in Travancore which would justify such a distinction. In my opinion, it is time to alter the statute in regard to the subject and place both men and women on the same footing in so far as capital punishment is concerned.

24. Nalini need not altogether be desperate. Law will not be slow to recognise the human aspect which in its expansive horizon would take in maternal care and caress for an innocent infant. That child too can claim "Human Rights"; more so for a girl.

Here is a moving passage from a Full Bench Judgment of Kerala High Court in what is popularly known as the German Doctor's case, Marggarate Maria v. Dr. Chacko & Ors. (1969 KLT 174 FB). The eloquent passage of jurist is extracted. The concluding portion reads:

"The logic of Justice Chacko, however, is neither solid nor strong. Protective discrimination in favour of women has now been accepted almost universally. Johnstone's case in America (1989), contains convincing reasons for a special consideration for women. For centuries, the black people and white women had been subjected to obnoxious oppression in the social plane. The Supreme Court of India did not find anything constitutionally objectionable, when for the identical offence,- even in such a grave one like adultery-, men were dealt with in a harsher way".

The majority judgment which treats Nalini only as yet another person, and ignoring J vital factors of her feminine frame and motherly status, suffer from the same lack of logic as in the case of Justice Chacko's judgment.

25. A President endowed with liberal perceptions, and an activist in his permitted I field, would evaluate that human element in Rajiv Judgment. There was worthy Precedents of sympathetic approach towards misguided idealism. Mahatmaji intervened I and saved K.P.R. from the gallows. Nanavati, the Naval Chief was exempted from the extreme penalty. Communist activist Vasu Pillai in Kerala was spared by a Gandhian Governor when the first elected Communist Government came to power. A sovereign President will not willingly permit his vision to be dimmed or observation obfuscated. There is an escape route when every other legal remedy is lost. Pervasive is the power of the President to act under Art.72 and to commute an extreme punishment invoking that power.

1991 (1) KLT 893 - Boon to Bankrupts?

(P. Rajan, Advocate, Tellicherry)

His Lordship K.T. Thomas, heading the Division Bench in Crl. M.C. 158/91 (Supra) has held that no cause of action will accrue to the payee or holder of a cheque under S.138 of the Negotiable Instruments Act 1988 (as amended), if the cheque is presented to the bank more than once for collection of the amount. Anxious considerations have been given by the Division Bench regarding 2 aspects - Several prosecutions basing on one cheque and general rule of interpretations regarding penal statutes to cause lessor hardship to accused persons.

This ruling has been rendered by over-ruling one Single Bench decision and affirming another.

With regard to multiplicity of complaints; more than one prosecution cannot be launched under S. 138 of the Act due to different reasons. To get cause of action, issuance of notice under S.138(b), after intimation from the bank, regarding insufficiency of money and failure of the drawer to make payment on receipt of thenotice. as in sub-section (c) is mandatory. Complaint can be entertained by the Court only on perusal of the cheque and other documents proving compliance of the legal requirements, as envisaged under the Act. On acceptance of the complaint, normally disposal has to take place within 6 months, to get back the cheque to the drawer in order to present it again to make room for the second prosecution, if the validity of the cheque is 6 months. Even if this much one has achieved, what would be the reply to the second notice from the drawer, who also has participated and accepted the verdict of the trial? Will he give silent consent for a second complaint? Assume, by dubious means, second complaint is launched, can the Magistrate over-look S.300 or 250 Cr. P.C., when suppression or fraud practised is brought to the notice of the Magistrate on appearance of the accused? At any rate, completion of two trials on one cheque is practically impossible considering S. 138 and 142 of the Act, law being rigorous, it can never escape the attention of the accused and Court.

Paramount consideration has been given and the Division Bench has held that least burdensome interpretation should be preferred while interpreting a penal statute so far as the accused are concerned. To fortyfy this view certain Supreme Court rulings also have been followed. The view expressed by the Bench is generally accepted and rulings are oft-quoted. But deviation seems to be the present rule relating to special enactments promulgated with a special or social purpose to curb certain evils, especially to meet the need of the hour. The primary and foremost task of a court while interpreting a statute is to ascertain the intention of the legislature (AIR 1986 S.C. 1491). If so, Chapter XVII of the Negotiable Instruments Act (as amended by Act 66/88) is to check and arrest indiscriminate issuance of cheques by unscrupulous persons to the anxiety and embarrassment of all concerned; new legislation is the only solution; so thought the law makers. Specific departure from general law could be evident in special criminal enactments recently introduced. Even non-application of the general provisions contained in the Code of Criminal Procedure is specified in such laws obviously to achieve the purpose and object. Examples are plethora, Terrorists and Disruptive Activities (Prevention) Act 1987, N.D.P.S. Act 1988, only few. Even if the 6 statute is penal, construction or interpretation of the provisions contained therein must be to make the legislative intent effective (1986 (2) SCC 237).

The Chapter XVII of the Act in question also is no exception. It has got over-riding effect compared to Criminal Major Acts. Ss. 138 to 142 are specifically meant to protect the interests of the aggrieved. Police investigation is prohibited, penalty specified also is not without taking note of S. 29 of Criminal Procedure Code. It is pertinent to note that as per the Code jurisdiction of the First Class Magistrate is to pass sentence of 3 years imprisonment and Rs 5,000/- as fine. Offence under the Act could be tried by a First Class Magistrate and the punishment prescribed is double the cheque amount as fine or imprisonment. For speedy redressal of grievance and disposal of the case, special provision is inserted not without being aware of the provision in the Code regarding jurisdiction and punishment. If not, trial by First Class Magistrate and fixing fine more than Rs.5,000/- may not be to the approval of higher courts and law makers. Negotiable Instruments Act 1881 docs not say the period of validity of a cheque, but definition is given and time is fixed by introducing the amendment for the purpose of criminal prosecutions. Cause of action emerges only after resorting to S. 138(b) by the holder and non-compliance on the side of the drawer. Division Bench has stated that no second cause of action will lake place on the same cheque. Take the case, if on getting intimation from the bank after the first presentment of the cheque regarding non-availability of amount in the account, the drawer requests for giving the cheque again to the bank before getting any notice under the Act for payment from the holder. On request second attempt and failure takes place within 15 days, can it be said with certainly that no cause of action is available due to successive presentments? Here, on first dishonour no notice is sent, so also no non-compliance on the side of the drawer, to get initial cause of action. Position is quite doubtful, because 15 days time does not expire. If notice is; issued after the second dishonour, can't it be said that the party gets cause of action only after the second dishonour? Exemptions and exclusions are reiterated in the Act, but nothing is stated regarding number of presentments. In the light of the ruling, Looser became many, because civil suit remains to be the only remedy left open and even if one succeeds before the civil court, decree may become dead for want of means in few case-at least. Everywhere cases under the Negotiable Instruments Act on cheques are on its increase. Larger Bench or the appex court may give the final verdict sooner, one could hope.

Tax on Expenditure in Air-conditioned Restaurants

(R. Krishna Iyer, B.Com., F.CA, Chartered Accountant)

"The food items in an Air Conditioned Restaurant to cost more.

A Bill was introduced namely 'EXPENDITURE TAX BILL - 1987'in the Finance Act, in 1987. By this Bill a person who pays a rent of Rs.400/- per day in a hotel has to pay byway of expenditure tax on the room rent. This Act was also brought under Direct Taxes Act (Income Tax Act).

The object of collection of tax are two (1) To collect revenue/funds to meet the expenses of the Government (ii) In the socialistic country to reduce the disparity in income between the rich and poor. Countries who have their own resources do not require to collect taxes. In India in both ways, collection of tax is an essential item and source of funds for the Government. In the Budget Speech in 1987 the Finance Minister has quoted more than once the views of late Jawaharlal Nehru. Jawaharlal Nehru while introducing the second five year plan has observed that ‘the country has to lay great stress on equality, on the removal of disparities, and it has to be remembered always that socialism is not the spreading out of poverty'. The Finance Minister while presenting the Budget in 1987 observed that' those who can afford to patronise high class hotels should also be afforded the further pleasure of contributing to the National Exchequer.

The idea of bringing the new legislation is to raise more funds for the Government. Of course this tax is collected only from the person who can afford or have the capacity to pay. Under the Income-tax Act the levy of tax is on income and since this levy is on expenditure a separate enactment has been made. The concept is entirely different, one is on 'income' and other is on 'Expenditure'.

The expenditure tax is charged at a percentage on any chargeable expenditure incurred in a hotel where the room charges for any unit of residential accommodation is Rs.400/- or more per day per individual. The expenditure includes room rent, food or drink facilities or any other services viz. beauty parlour, swimming pool etc. The rate of tax was only 10%in 1987 which got increased to 20% from 1-6-1989. This tax law is effective from 1-11-1987.

The definition of Direct Tax has been amended to include the "Expenditure Tax". In fact this tax is only an indirect tax, like Sales tax and Customs duty, Central Excise etc. The hotel is only an agent collecting the amounts from the customer and remitting to the Government. Taking into account the definition, this is only an 'indirect tax', even though by the amendment in definition, it has been included in the Direct Tax Act. In this context it has to be noted that all the State Governments are collecting tax on the room rent by way of 'luxury tax'. Recently Kerala Government has increased the rate of luxury tax to 15% for rent above Rs.75/- and 20% on Air-Conditioned rooms. Therefore on the same expenditure the State and the Central Governments are collecting taxes.

As per the Income-tax Rules, the expenditure incurred on travelling by an employee including hotel expenses will be restricted to Rs.150/- per day in respect of an employee whose salary is Rs 1,000/- per month or more. For the places Bombay, Calcutta, Delhi the expenditure is restricted to a maximum ofRs.200/-.

Therefore while the Government is collecting tax on expenditure, on the other hand such expenditure actually incurred is not allowed as deduction.

The scope of levy of this tax has been extended in 1991 by the Finance Minister towards expenditure incurred in Air-conditioned restaurants also. According to the Finance Minister this levy is a further measure for discouraging ostentatious and wasteful expenditure. The original proposal was that this levy would be applicable only if the restaurants have any of the three following facilities:-

(1) Air Conditioning

(2) Two or more separate cloak rooms

(3) Telephone

(4) Deep freezing or cold storage facility.

As per the above, this tax can be collected and has to be collected by the person providing the services at the restaurant. The rate of tax is fixed at 15% and will be made applicable from 1-10-1991. Therefore it is not necessary that it must be an Air-conditioned Restaurant, it is sufficient if the remaining three facilities are provided in the restaurants. However it is understood that the said proposal has been amended by which the air-conditioned facility is alone sufficient to attract this levy, irrespective of the availability or not of the other facilities.

In this context it will be appropriate to note that the expenditure tax on rent is applicable for all the expenditure incurred in a hotel. If there is one room costing more than Rs.400/- per day on single occupancy basis, then this tax is payable for all the expenditure incurred in this hotel. On the other hand the tax on restaurant is limited to the expenditure on the air conditioned restaurant only.

Just like luxury tax on room rent collected by Stale Government, the State Governments are also collecting Sales tax on food items. In Kerala the Sales Tax is applicable in 'Star' and 'Bar' Hotels.

The rate of sales tax in Kerala is 6.25%. Therefore in addition to the cost of food, if it is an air-conditioned restaurant in almost all cases the consumer has to pay 6.25% towards sales tax and 15% as expenditure tax.

The Air-conditioning in restaurants cannot be considered as a luxury or wasteful expenditure. In almost all the cities the restaurants which are situated in the heart of the town or in busy centres should have closed halls for restaurants in order to avoid the noise and dust and for privacy and peace. In such circumstances unless it is air-conditioned, it is impossible to sit in the room and for health reasons also. Even the small restaurants in small towns now-a-days are having atleast one air-conditioned room. These Restaurants may not be Income-tax assessees, but this expenditure tax will be applicable to them. As per the Act this expenditure tax is on the expenditure incurred in restaurant. The dictionary meaning of the word restaurant is "a house for the sale of refreshments or an eating house". There is no doubt that the air-conditioned restaurant supplying food and eatables including the ice-cream parlours will come under the purview of the Act. However it has to be examined whether the 'bar' where some eatable is also supplied will be considered as a restaurant for this levy. According to the dictionary meaning of the Bar is "a counter across which drinks are served". Therefore this tax cannot be levied if any eatables are served on the Bar, since the levy is on the expenditure incurred on Restaurants. It is not a case where levy is on food items in an air conditioned room. It is only a tax on the expenditure incurred on the Restaurant.

It is further so be noted that there is no minimum limit for this levy. Even in the Sales Tax Act it is applicable only where the turnover exceeds Rs.2,00,000/- (Two lakhs) per year. The expenditure tax has to be collected on the expenditure incurred on the Restaurant and therefore the said tax has to be paid even on the Sales tax on the food items.

As such this expenditure tax is applicable:

(1) If the rent per day per individual is in excess of Rs.400/- or

(2) If the expenditure is on an air-conditioned restaurant.