Gender in Equality in Partition

(By Jacob P. Alex. VIII Semester Student, School of Indian Legal Thought, M.G. University, Kottayam)

Introduction

"All are equals but some are more equal than others", wrote Orwell decades back in Animal Farm. We are about to cross the 20th century and seeking the gate pass to enter into the 21st century. Political parties make occasional vibrations for codification of personal laws but, some community is against it and a major section favours it. Those who argue for codification of personal laws are silent about the gender discrimination created by S.23 of the Hindu Succession Act, 1956. Mrs. Mary Roy was successful in getting her right to partition of intestate property - notwithstanding the then existing Travancore Christian Succession Act and Cochin Christian Succession Act. The Apex Court of the land held that provisions of the Indian Succession Act will apply to Christians in Kerala. The personal law is to be untouched by the provisions of the Part III of the Constitution [1]. The Supreme Court has not given any reasons for this proposition and the declaration of the Supreme Court reasoned or unreasoned is always binding.

If Christian Law relating to succession in middle Travancore and erstwhile Cochin can be changed I wish to bring to the notice of the legal luminaries in the Bench and Bar, the Law Commission and the Parliament, the glaring discrimination created by S.23 of the Hindu Succession Act, 1956 which runs as follows:

Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein, but the female heir shall be entitled to a right of residence therein.

Provided that where such female heir is daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

Object and Reasons - Whether a justification?

It is seemingly with the object of preventing fragmentation or disintegration of family dwelling house that the aforesaid provision is enacted. It is unnecessary to quote the plethora of decisions for brevity. In the under noted cases[2] it was very clearly mentioned that the sole object of S.23 is to prevent fragmentation of the dwelling house. Authoritative treatises on Hindu Law also repeat the very same object. But it should be noted that this enactment was passed in the year 1956 and the Parliament had in mind the provisions of Partition Act 1893. Yesteryear's India is not today's India. The Hindus particularly in Kerala and that too the so called "Janmies" (landlords) had extensive lands of immovable properties which were snatched away through the Land Reforms Act, a revolutionary change made by the State of Kerala. If this provision is retained the female heirs will find it very difficult to get their share unless the male heirs choose to divide their respective shares. In order to attract S.23 the following requirements should be satisfied (1) A male or female dies intestate. (2) The heirs include female heirs specified in Class I of the Schedule. (3) The deceased leaves a dwelling house wholly occupied by members of his or her family.

Dissection of Section 23 of the Hindu Succession Act, 1956 and Anatomy of Gender Discrimination

1. If the object is to prevent fragmentation of the dwelling house the male members should also be prevented from claiming partition. Whether the fragmentation could happen only in the hands of female heirs? If S.23 is intended to prevent partition of the dwelling house then logically it should have been prevented both at the hands of male and female heirs. Unfortunately the wordings of S.23 being only designed against female heirs it ipso facto results in discrimination.

The expression "until the male heirs choose to divide their respective shares" will result in a quite unhappy situation and the female heirs will be constrained to wait until all male heirs divide the property before enforcing her right to partition. The Smritikars[3] were of the view that the dwelling house should not be partitioned [4]. Though this was the clear and sole intention, gradually the unfortunate expression "'at the instance of female heirs" has been included which will be a violation of the equality principle. Even after the death of the father a female daughter cannot get her share of property on account of the stumbling block created by S.23. So the Section is manifestly discriminatory and still worse than the provisions of the erstwhile Travancore and Cochin Christian Succession Acts.

2. Recently the Hon'ble Supreme Court in Narasimha Murihy v. Susheela Bai[5] gives a "thought provoking" logic behind S.23 and held that S.23 restricts the right of a female heir to claim partition of the family dwelling house so long as the male heirs do not choose to effect partition of the same, it was also held that due to marriage the daughter would leave the parental house and get transplanted into the matrimonial home. It is inferred that daughters will loose their affection towards their parental home after marriage.

Are daughters less anxious and less reverential to preserve the dwelling house to keep the parental memory alive than the male heirs? The object of preventing fragmentation can be thwarted or defeated by a male member and they can fragment the dwelling house which the female heir cannot. And I fear the paragraph Nos.14 to 18 of the above said decision in Murthy's case[6] would be criticized as an example of male chauvinism.

The object of preventing disintegration of a dwelling house at the instance of a female heir who may become an outsider by marriage cannot be fully achieved. The son of predeceased daughter who is a class 1 heir and who is an outsider of the family can claim partition under law. This section prevents only the daughter(s) or female heir(s) of the predeceased from claiming partition. If that is so how can the object of preventing fragmentation be achieved?

The statutory interdict which prevent females from claiming partition until the male heirs choose to divide their respective shares is unfortunate. And in this situation, the law is leaning heavily in favour of males. If there is only one male heir, he can successfully obstruct the right of female heir(s) for ever by resorting to S.23 of the Act. In such situations the right to partition of a female will be permanently postponed and will be ultimately frustrated.

Hence, it is submitted that the object of S.23 cannot be fully achieved and the same will only result in denying the rights of female heirs. This section will only help to throttle the dream of equality.

3. The proviso of S.23 is a still more obnoxious provision which only offers stark contradictions and disparities. There are eight class 1 female heirs i.e., (i) daughter (ii) widow (iii) mother (iv) daughter of a predeceased son (v) daughter of a predeceased daughter (vi) widow of a predeceased son (vii) daughter of a predeceased son of a predeceased son (viii) widow of a predeceased son of a predeceased son.

But I am afraid whether the drafts-man was in deep slumber as there are many disparities. The object itself cannot be achieved in all situations and daughters are blatantly discriminated. So, I am forced to submit that the above retrograde provision which is outmoded must be given a decent burial.

1. Lastly I request the Parliamentarians to repeal S.23 of the Hindu Succession Act, 1956.

2. I request the Feminist Organisations and allied associations supporting them to take up this matter before the Hon'ble Supreme Court.

3. I appeal to the Law Commission to recommend repeal of the obsolete provision.

_________________________________________________________________

Footnotes:

1. Krishna Singh v. Mathura Ahir (AIR 1980 SC 707)

2. a Janabai Amma v. Palani Mudaliar(T.A.S.1981 Mad.62)

  b V. Mallikarujuna Rao v. C. Sivasankara Prasad (AIR 1981 AP 84)

  c Mookkammal v. Chithravadiammal (AIR 1980 Mad.243)

  d Arun Kumar Senyal v. JnanendraNath SenyaI (AIR 1975 Cal.232)

  f Sanjaya Kumar Das v. Smt. Maya Dutta (AIR 982 Cal. 222)

  g Smt. Usha Majumdar v. Smt. Smrithi Basu (AlR l988 Cal.115)

3. Manu IX 219,MitaksharaI,IV, 16-17)

4. Mitakshara I,iv,21.

5. Narasimha Murthy v. Susheela Bai (AIR 1986 SC1826)

6. Ibid

A Reply to "Abolish C.A.T. - Sooner the Better"

1998 (1) KLT 88 Journal

(By Advocate Govindh K. Bharathan)

The Article published in 1998 (1) KLT 88 - (Journal) purportedly written by Sri. K. Srinivasan Nair who claims to have been a former Judicial Officer and Additional Director of Public Prosecutions calling for abolishing the Central Administrative Tribunal is offensive in tone, erroneous in fact and law and is in contempt of the Honourable Central Administrative Tribunals of the land. It is obvious that the intention of the article is to offend and not to instruct. The sheer lack of investigation on the part of the author is reflected in the palpable errors of fact in the article. Erroneous facts and misconceived misapplications of the questions of law have been passed into service in support of the authors claim that Central Administrative Tribunals should be abolished as they are "while elephants" and have failed to fulfil the tasks for which they were created in the first instance.

By recommending the abolition of Tribunals and the transfer of all cases to the High Court, the author has apparently not understood the very concept of the development of Administrative Adjudication. The article recommends a great leap backward to the days when Administrative Tribunals were criticised by jurists like Dicey and Hewart. Those criticisms may have been valid at that stage of the development of law. But times have changed and the gargantuan growth of administrative law, which was a necessary concomitant of industrial progress, and the phenomenal growth of State control into all aspects of life changed the very basis of the rule of law. The immediate result was the growth of a vast bureaucratic set up. Matters relating to service conditions of employees of the State acquired proportions which the High Courts of the land found difficult to handle within the limits of the extra ordinary jurisdiction vested in them Art.226 of the Constitution. Again, the very texture of the contentions put forth by Government Servants regarding their service conditions, often defied the limitations inherent in the exercise of the extra ordinary jurisdiction vested in the High Court under Art.226 of the Constitution, even taking into account the ever widening vistas that liberal interpretation had opened out to Court's power to issue high prerogative writs.

It was under these circumstances that Administrative Tribunals were created. Administrative Tribunals have come to stay as evident from an over-view of the development of law all over the world. Such Tribunals exist in the United States, the United Kingdom and France and their working has added a new facet to the very concept of the dispensation of justice. Their performance revealed a fresh and approach to the problems arising from service conditions of Government servants. They proved to be untrammelled by the strait-jackets of conventional Judicial process where the emphasis was on procedure and precedent, delaying and thereby denying the justice intended to be dispensed.

Perhaps the Author has not heard of Art.323-A of the Constitution whereby Parliament has been empowered to create Tribunals to deal with complaints regarding recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. The makers of our Constitution obviously anticipated the necessity for such Tribunals, foreseeing phenomenal arrears which could clog the speedy and effective flow of justice. The recommendation in the article to abolish the Central Administrative Tribunal displays a dismal lack of knowledge of the way courts function. The conclusion of the author show that he is unfamiliar with the working of the Central Administrative Tribunals. He also appears not to have assimilated the tone, content and import of the decision of the Supreme Court in Chandrakumar's case (AIR 1997 SC 1125).

In Chandrakumar's case, the 7 Judge Bench of the Supreme Court clearly laid down that the fact that some Tribunals were not functioning up to expectations could hardly be the basis for holding that their very creation was unnecessary and their foundation unsound. The Bench clearly laid down that the reasons for which the Tribunals were constituted still exist (para.89). There was also a clear finding that the views of the Malimath committee which recommended that alternative institutional mechanisms like Tribunals be abandoned and High Courts themselves be divided into separate divisions for different branches of law were not suitable to the present context. The 7 Judge Bench reiterated that the reasons for the constitution of the Tribunals not only continue to persist but have become even more pronounced in our times. While bringing Tribunals under the jurisdiction of High Courts under Arts.226 & 227 of the Constitution, the Supreme Court stressed that to hold that Tribunals have no power to handle matters involving Constitutional issues would not serve the purpose for which they were constituted. The Bench laid down that while raising the power of judicial review of legislative action vested in High Courts under Art.226/227, it would ensure that frivolous claims were filtered out through the process of adjudication in the Tribunal and the High Court would also have the benefit of a reasoned decision on merits which would be of use to it in finally deciding the matter. Thus, there is no legal, factual or reasonable basis to conclude, as has been done by the learned author of the article that "one more tyre" (sic) has been added to the system which will cause more delay.

The 5 Judge decision in Sampath Kumar's case (AIR 1987 SC 386) has been integrated and incorporated into the larger bench decision in Chandrakumar's case and the criticism regarding the working of Tribunals in Sampath Kumar's case has been blended into the final decision in Chandrakumar's case where the emphasis was on improving the quality of judicial review of Tribunals and not on their abolition. The subtleties of these two nodal rulings have evidently escaped the judicial appreciation of the learned author in the article. He has also failed to understand the constitutional mandate of .Art. 141 of the Constitution that the law laid down by the Supreme Court becomes the law of the land. To cite Chandrakumar's case in support of the learned author's recommendations to abolish Tribunals thus amounts to clear misinterpretation of this land mark ruling, which can be either a result of non-assimilation of the tone and content of the judgment or a deliberate attempt to misapply the ruling in an effort to substantiate a wrong proposition of law.

The attack in the article seems to be not so much against the Central Administrative Tribunals and their functioning as against the Chairman and members of the Tribunals and the perks and pay scales they enjoy. It seems that the Author is unaware of S. 6 of the Administrative Tribunal's Act, 1985. The position of Vice Chairman of the Central Administrative Tribunals has been equated by the Author to the District Judges. S.6 of the Act lays down the qualifications for appointment of Chairman, Vice Chairman and Judicial Member of the Central Administrative Tribunal.

The relevant portion of S. 6 of the Act is reproduced below:

6. Qualifications for appointment as Chairman, Vice-Chairman or other Members:-

(1)   A person shall not be qualified for appointment as the Chairman unless he-

a)    is, or has been, a Judge of High Court; or

b)    has, for at least two years, held the office of Vice-Chairman: (xx)

c)     x           x             x             x

2)     A person shall not be qualified for appointment as the Vice-Chairman unless he-

a)    is, or has been, or is qualified to be, a Judge of High Court; or

b)    has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India; or

(bb) has, for at least five years, held the post of an Additional Secretary to me Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Additional Secretary to the Government of India; or

d)    has, for a period of not less than three years, held office as (a Judicial Member or an Administrative Member).

3)     A person shall not be qualified for appointment as a Judicial Member unless he-

a)    is, or has been, or is qualified to be, a Judge of a High Court; or

b)    has been a member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years.

The Section is elaborate and exhaustive and would have merited at least a cursory reading by the author before he asserted that Vice Chairman of Central Administrative Tribunals are in the position of District Judges. And it is with this innocence of the Law that the Author presumes to recommend the abolition of Tribunals, which have been established under the mandate of Art.323 of the Constitution.

One cannot but discern the faint taste of sour grapes that pervades the article. But what is really distressing is the apparently disturbing attempt to quote wrong facts and to misinterpret the judgments of the Supreme Court and of our own High Court on this matter. For instance, it is patently wrong to state that 48,000 cases are pending adjudication before the Central Administrative Tribunals. This is obviously an incorrect and over-inflated figure and the statement that the figure has been taken from 'news paper reports' without mentioning the names of the news papers which are claimed to have so reported, shows a cavalier approach hardly becoming of a reasoned judicial opinion.

As a matter of fact, the actual position is totally different. The present pendency of cases before the Central Administrative Tribunal, Ernakulam Bench is in the vicinity of 1300 as on 1.8.1998 of which about 65% of the cases are one year old, 30% of the cases are 2 years old and barely 5 % of the cases are over two years old. Even assuming but not conceding that the improbable figure of 48,000 is anywhere near the correct figure, the pendency per Tribunal throughout the country would be about 2,800 cases since there are 17 Benches of the Tribunals in the various States. The pendency of cases before the High Courts on the other hand is about one lakh per High Court (on an average). Statistics is a dangerous weapon in the hands of the unscrupulous especially when cited with seeming confidence.

Before departing from the subject, one cannot shake off the impression that the concluding portions of the article constitute an oblique attack against the Chairman and Members of the Central Administrative Tribunal. These remarks are in effect half-truths and innuendo and should not have found a place in any article dealing with an important constitutional subject like the necessity for Administrative Adjudication through Tribunals.

I would conclude by saying that much more investigation and introspection should have gone into such an article before it was presented for publication. Whatever be the intention of the learned author, the effect of such an article on the litigating public is too serious to remain unrebutted.

No Second Appeal Below Rs.3000/-?

(By M.R. Rajendran Nair, Advocate, Ernakulam)

In the judgment reported in 1999 (2) KLT 877 (Pariyaram Panchayat v. Damodaran Nair), the second appeal was held to be not maintainable since the amount of the value of the subject matter of the original suit wherefrom the second appeal arose did not exceed Rs.3000/-.

With great respect, it is submitted that this view is not correct. It is not as if that in all cases where the subject matter of the original suit does not exceed Rs.3000/-, no second appeal would lie. According to S.102 of the Civil Procedure Code, no second appeal shall lie from 'suits of the nature cognizable by Courts of Small Causes', when the amount or value of the subject matter of the original suit does not exceed Rs.3000/-. This would mean that if the suit is of the nature cognizable by a Small Causes Court and the value of the subject matter of the suit does not exceed Rs.3000/-, no second appeal will lie, though the suit has not been tried by a Small Causes Court. The reason is that it is the nature of the suit and not the Court in which it is tried that determines the right of appeal. The words 'any suit of the nature cognizable by Courts of Small Causes' mean any suit relating to the subject matter over which Courts of Small Causes would have had jurisdiction if the claim was within the pecuniary limits of its jurisdiction.

In the reported case, the claim itself was for Rs.1000/- and therefore if the suit were of the nature cognizable by a Small Causes Court, the suit itself would not have been maintainable in any other Court. According to S.13 of the Small Causes Court's Act, 1967 save as expressly provided by that Act or any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court. Decree or order made under the provisions of the Small Causes Court Act by a Court of Small Causes would be final and no appeal will lie except in cases of orders specified in clauses (ff) and (h) of S.104 of the Code of Civil Procedure. Under these provisions, an order under S.35A for compensatory costs in respect of false or vexatious claims or defence, and an order under any of the provisions of the Code imposing a fine or directing the arrest or detention in the Civil Prison of any person except where such arrest or detention is in execution of a decree alone are appealable.

The original suit which was the subject matter of the second appeal 20/91 was a suit for damages against the Panchayat Executive Officer for having acted in excess of the power conferred on him as Executive Officer of the Panchayat. It was alleged that the defendant cut the branches of certain trees standing in the property of the plaintiff illegally and the plaintiff sustained loss. The counsels were asked to address the Court as to whether the second appeal will lie even when the suit was not a small causes suit. Either side contended that the claim was for damages in respect of an act done by an officer like the Executive Officer of a Panchayat statutorily empowered to cut the branches of the trees hanging over the residential premises of another causing danger to life and property and it will not be a suit of small causes and that second appeal was prohibited as per S.102 of the Civil Procedure Code only from a decree in a suit triable by Courts of Small Causes.

There is an inaccuracy in this contention. The distinction between suits triable by Courts of Small Causes and suits of the nature cognizable by the Courts of Small Causes is borne out. The learned Judge rightly said that the suit need not be cognizable by Court of Small Causes, but it may be only of the nature triable by the Courts of Small Causes. But it was stated that the words 'of the nature cognizable by the Courts of Small Causes' indicate something more than the suit cognizable by Courts of Small Causes and that the second appeal was not maintainable because the amount or value of the subject matter of the original suits wherefrom the second appeal arose did not exceed Rs.3000/-. The learned Judge erred in not holding that the suit was not of the nature cognizable by Courts of Small Causes, as a suit for compensation for illegal, improper or excessive distress, attachment or search, or for trespass committed in, or damage caused by the illegal or improper execution of any distress, search or legal process was a suit excepted from the cognizance of Courts of Small Causes as per Clause 36(k) of the Schedule to the Small Causes Court's Act, 1967 and that a suit concerning an act or order purporting to be done or made by any other officer of the Government in his official capacity was also excluded under clause (3) of the Schedule.

As the suit was not of the nature cognizable by a Court of Small Causes, the second appeal was clearly maintainable.

Nibblers At Nicotine, Beware !

It is No Smoke-Screen

(A critique of Ramakrishnan v. State of Kerala reported in 1999 (2) KLT 728)

(By S. Parameswaran, Advocate, High Court of Kerala)

(I) "What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? If not, when is a citizen morally free to disobey?" A renowed philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the "Ruling" theory in Anglo- American law - legal provisions and economic utilitarianism - and asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the State that are prior to the welfare of the majority. Dworkin criticises in detail the legal positivist's theory of legal rights particularly H.L.A. Hart's well-known version of it. He then develops a new theory of adjudication and applies it to the central and politically important issues or cases in which the Supreme Court interprets and applies the Constitution. Through an analysis of Rawl's theory of justice, he argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who possess it. He offers a theory of compliance with the law designed not simply to answer theoretical questions about civil disobedience, but to function as a guide for citizens and officials.

Finally, Professor Dworkin considers that right to liberty often sought to rival and even pre-empt the fundamental right to equality. He argues that distinct individual liberties do exist, but that they derive, not from some abstract right to liberty as such, but from the right to equal concern and respect itself. He thus denies that liberty and equality are conflicting ideals.

(II) The theme is that of the Court as both a mirror and a motor- rejecting the development of the society which it serves and helping to move the society in the direction of the dominant jurisprudence of the day. It is said that war is too important a matter to be left to the Generals. Similarly, Court has reason to think that policy matters are too important to be left entirely to the Legislature and the Executive. Tradition gives way slowly, but surely, at the Apex Court and the High Courts.

(III) Justice Holmes, who commended and commanded judicial restraint used to tell his fellow judges that the Constitution was not intended to give the judges a carte blanche to embody their own social and economic beliefs and policies in its prohibitions. The Court should not become partisan of a particular set of opinion which, by no need are held semper unique et abe Omaniburg. (Otis v. Parker 187 US 606 (1908)),

(IV) The authority of the Constitution, its claim to obedience and the force that we permit it to exercise in our law and over our lives would lose all legitimacy if it really were only a mirror for the readers' ideas and ideals. Just as the original intent of the Framers - even if it could be captured in the laboratory, bottled and carefully inspected under a microscope - will not yield a satisfactory determinate interpretation of the Constitution. So too, at the other end of the spectrum, we must also reject as completely unsatisfactory the idea of the empty or an indefinitely malleable Constitution. We must find principles of interpretation that can anchor the Constitution to some more secure, determinate and external reality. But that is no small a task, though the Kerala High Court covertly, and shall I say, courageously, has attempted it.

(V) Patrick M. Garry writes, about the state of affairs in present-day America: "As the 20th century draws to a close, court-room trials in America have become like the great gladiatorial contests of ancient Rome. They are followed, as sporting events are followed, always with a speculation as to who is winning and who is losing, and also has the better lawyer. Yet, in the midst of all the dramatic court room battles, the first causality has been one of the original justifications for conducting such trials: the truth." In a litigious society that America has become, the notion that truth emerges from the Court room has been largely discredited. (Patrick M. Garry," A Nation of Adversaries - How The Litigation Explosion Is Reshaping America," Insight Books, New York, (1997) P.161). Do these not sound a ring of truth in India too?

(VI) "There is a criticism, not entirely baseless or imaginary, that legal thinkers have no respect for legal academics. And all but the most devout seem repulsed by the imperious overweening advent of America's overwrought legalism". ("Laying Down The Law; Mysticism, Fetishism and the American Legal Mind", Pierre Schlag, New York University (1996) 103). These words of an American legal critic are apposite and appropriate to the Indian context.

(VII) Schlag adds "There is no method, no great learning, no illuminating texts, no real craft, no act worthy of the name. There are only great problems." One must say that this is a gross exaggeration. As the author himself admits, criticism of the law is always in the service of the law itself. Luckily, most of our judges understand and appreciate this and do not take criticism of their judgments to their hearts. By law one does not mean the ugly beaurocratic moise that grinds daily in the nation's courts, legislatures and agencies alone.

(VIII) There are noble and ignoble moments in law and it is difficult intellectually to identify their ratios and relations. This realisation, of course, does not abate the pressing need for law.

(IX) Judicial digging and consequent transformation in environment litigation is on the increase. The rationale is that by the very fact of enactment of legislations in respect of environmental and consumer interests, it become a legally protected interest. And by that very fact, the individual or group alleging its violation acquires standing to move the Court. As Schwartz points out, such interests have received importance as a new perspective from the growing movement towards so - called "Participatory democracy". The legal system, like other institutions of contemporary society is seeking to give the citizen a means of making its impact felt more directly on the governmental processes (Schwartz 'Administrative Law', Toranto Little Brown and Rei (1976)).

(X) No doubt, Public Interest Litigation is a revolutionary transformation of the litigating and justicing processes. See what Cappelleti says; "(A) turmoil, indeed, a real revolution, is in progress, in which even the most sacred ideas and themes of judicial law, such as due process and the right to be heard are being challenged..... Such new concepts as 'diffuse rights', 'fluid recovery' and "the ideological plaintiff may admittedly appear dangerous, iconoclastic and confusing. Yet, they reflect the unprecedented complexity of contemporary realities. These new concepts represent a deeply motivated trend of universal dimensions. (Mauro Cappelletti, "Vindicating the Public Interest Through the Court - A Comparatist's Contribution" in Mauro Cappelletti and B. Garth. (Editors), "Access to Justice; Emerging Issues and Perspectives" (1979) Vol. HIP. 513 at P. 564).

(XI) The petitioner should be possessed of pertinent bona fides and recognised attributes and purposes in the area of environment and public health to litigate these issues. The Court has to be saved from being used as a vehicle for vindication of value interests of by-standers. The action and the relief should not be confined to a limited group of persons, but possess a wide geographical coverage for Court to activate itself in pro bono publico litigation.

(XII) "Nothing rankles more in human heart, more than a brooding sense of injustice. Illness we can put up with, but injustice makes us pull things down. When only the rich can enjoy the law as a doubtful luxury, and the poor, who needs it most, cannot have it because its expense puts it beyond their reach, the threat to the continued democracy is not imaginary, but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in, and benefit by, its impartiality and fairness". (Justice Brennan quoted in "Public Interest' Litigation, Dr. S. Hurra (Mishra & Co., Ahmedabad) (1993)) U.S. Supreme Court Justice Brennan's above-quoted famous words rushed to my mind when I read Ramakrishnan v. State of Kerala (1999) 2 KLT 718) delivered by the Division Bench of the Kerala High Court comprising Acting Chief Justice AR. Lakshmanan and Justice K. Narayana Kurup.

(XIII) The decision of the Division Bench on smoking in public places has not come a day too late. To the non-smoking citizens of this State, it brings solace and relief from the evil effects of passive smoking thrust on them by the smokers, who ignore the ban signs in cinema houses, buses, railway compartments and air conditioned restaurants. There is a growing fear among certain sections of the citizens over the expansion of judicial power among our judges which even trenches upon fields occupied by the Legislature and the Executive and that if it goes unchecked, the judiciary may become an imperium in imperio. While these fears cannot be brushed aside lightly as unfounded, the right of a citizen to have equal access to effective justice to vindicate legal rights, whether old or new, whether individual or meta-individual, is basic in any democratic Government. It is the duty of the democratic Government to see that legal rights, duties and entitlements are judicially enforced and public interest litigation is a strategy to safeguard the rights of citizens.

(XIV) The decision rendered by the Division Bench has received an enthusiastic response from a large section of people in Kerala, though one has to admit that there are certain quarters, essentially consisting of smokers, who have reservation about the correctness of the judgment. According to this school of thought, these are matters of policy and, therefore, it is for the Executive and, if necessary, the Legislature to take decision on such matters and the judiciary's function is only to deal with violation of the law concerning this, if any. The judiciary by way of judicial activism is arrogating to itself jurisdiction over areas which fall well within the periphery of policy decisions vested with the Executive. Or to use an American jargon, it is not for the judiciary to deal with polycentric issues like a ban on smoking.

(XV) Perhaps, Ramakrishnan will be received by the nibblers at nicotine, who surge into a spree of smoking with an impetuous abandon and an abominable unconcern, with a collective yawn. Again perhaps, on reflection or second thought, the Division Bench may realise that its stunning assertion was too obvious to merit seminal discussion, for, the Courts cannot change the locus of ultimate legal power in the country. But, we must remember that great precedents have their roots in the minds and hearts of ordinary people and they need time to grow.

(XVI) The arguments in Ramakrishnan's case were not characterised by crabbed legal reasoning or bogged down in citations and counter - citations of dusty precedents. The lawyers did not seem to realise the scope of the issue they were addressing. They were like a small musician playing Beethoven symphony on a banjo. But the Division Bench would see to it, with Acting Chief Justice AR. Lakshmanan and Justice K. Narayana Kurup on it that the appropriate orchestration was provided and that is exactly what happened.

(XVII) The judgment delivered by Justice K. Narayana Kurup of the Division Bench comprising Acting Chief Justice AR. Lakshmanan and himself has dealt a lethal blow to nibblers at nicotine. It is after a splendid and penetrating analysis of the problem created by smoking in all its ramifications, and the inefficacy of the statutory warning inscribed on the cover of the cigarette packets, that the learned Judges have delivered this judgment.

(XVIII) The Division Bench, however, has given an unforgettable discourse on the pernicious effect of (un?) popular action and conduct in a free society. It demonstrated that we must be eternally vigilant in our attempt to check conduct that we loathe and believe to be fraught with death.

(XIX) The Bench in Ramakrishnan says; "Since smoking is a public nuisance, it can be more effectively abated by invoking S.13 3 Cr. P.C." and then goes on to extract the section. It continues, "If such an order is passed by the Executive Magistrate, any person who disobeys the order is guilty of the offence punishable under S.188, IPC......... Offences under S. 188I.P.C. is cognisable as per first Schedule of Cr. P.C. Therefore, after the promulgation of an order under S.133(a) Crl. P.C, if any person is found smoking in a public place, the police can arrest him without a warrant. The only condition is that the order is duly promulgated by the Executive Magistrate. The Executive Magistrates have a duty to promulgate such an order. "(Emphasis supplied), Relying expectedly and, perhaps, rightly, on Ratlam Municipality (AIR 1980SC 1622), wherein that active and inveterate iconoclast on the High Bench, Justice Krishna Iyer gave the clarion call for pro bono publico action, Justice Narayana Kurup, speaking for the Bench, adds, "When there existed a public nuisance, this Court could require the Executive under S.133 Cr. P.C. to abate the nuisance by taking affirmative action on a time-bound basis. Otherwise, it will pave the way for a profligate statutory body or pachydermic governmental agency to defy the law by willful inaction." With respect, neither rationale nor logic informs or supports this observation. In a Republican democracy like ours, we have rule of laws and not rule of judges; Courts cannot arrogate to themselves Executive or Legislative functions and duties as they are not representative of the popular will and not subjected to periodical tests of acceptability or credibility by electoral processes. Perhaps, emotion got the better of logic and legality while saying so. But, see the subsequent words of the Bench: "Therefore, when the Magistrate has before him all the information and evidence which disclose the existence of a public nuisance and on the materials placed, he considers that such nuisance should be removed from any public place which may be lawfully used by the public, he shall act. Thus, his judicial power shall, passing through the procedural barrel fire upon the obstruction or nuisance, triggered by the jurisdictional facts. The responsibility of the Magistrate under S. 133 Crl. P.C. is to order removal of such nuisance within a time to be fixed in the order. This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding". The words underlined (emphasised) have a ring of substantive truth and solemnity and sobriety, while the trigger-happiness advised and advocated by the Bench bring to out mind unpleasant memories of the outmoded Maoist dictum that power flows from the barrel of a gun!

(XX) It is, perhaps, an exaggeration - A pardonable exaggeration at that - to say that the Kerala High Court through activist Judges like Acting Chief Justice AR. Lakshmanan and Justice Narayana Kurup has set the theme for the 21st century jurisprudence. The Division Bench in Ramakrishnan showed how traditional principles and techniques and age-old statutory provisions could be pressed into service to affect a sea-change in the relationship between the law and the individual rights of citizens. The Bench, to borrow the expression of Roscoe Pound about Justice Benjamin Natham Cardozo, has shown that it knows the tools of its craft and how to use that. It is innovative to use traditional judicial techniques to adapt the law to society's changing requirements, as has been done in the present case.

(XXI) Reasoning by analogy and with reference to technical details, the Bench showed how the existing law could be adapted to new ideals and by a masterly judicial technique, the Court made the emerging law to appear to be a logical product of established doctrines and the Statute law, and made a blend of both continuity and creativeness.

(XXII) In Ramakrishnan, the instinct was to fill the gaps or ambiguities in the Statute Law with judge-made Common Law, rather than to search first for guiding principles in the structure and design of the law laid down. The Constitution, they emphasise by action, was not just and overly on the private law of property and contract. The Court, though, perhaps, with extreme enthusiasm, and exceeding the limits of self-imposed judicial restraint, which is the hall-mark of a good judge, embarked upon an exciting, though necessarily exalting, adventure with judicial review. The Judges did not quite succeed in making discrete starting points for creative judicial elaboration. They, perhaps, studiously ignored what a civil law approach would have kept in view; that the Constitution is not only a charter on rights, but a design for government which places important limits on both judicial and legislative lawmaking. The Indian citizens will be deprived of having a say on how they want to order their lives together. It will also lead to the loss of skills of self-government.

(XXIII) Judge-made law is ex post facto law and, therefore, unjust, according to some legal thinkers. An act is not forbidden by the statute law, but it becomes forbidden by judicial consideration and interpretation. The legislature did not effect this, for, the Constitution did neither permit nor prohibit it. But, on occasions, the judiciary usurps, Legislative and Executive functions. It not only usurps, but runs riot beyond the confines of Legislative power. Reasoning is pleasing to the unsophisticated intellect, but the reason adopted by judicial legislators is sublimated perversion of reason which bewilders and perplexes and plunges its victims into mazes of error. They build up a whole system of law without the authority or consent of the Legislature. So go the arguments of these thinkers. But, intellectual and inquisitive energy combined with an awesome capacity for convenient inaccuracy may sometimes produce a good deal of the original law, one must realise and recognise.

(XXIV) The Bench has inquisitively delved deep into the medical and scientific aspects of smoking and its evil effects. A keen judicial application of the mind and an anxiety to do justice to the hapless and helpless (and hopeless?) non-smoking citizens of the State are running right through the judgment. The opinion is written for the Bench by Justice K. Narayana Kurup, whose present judicial exercise in public interest is not a mere flash in the pan. In the cases of running of private buses in Thiruvananthapuram city, mosquito eradication in Kochi City and the depreciable self-seeking practices of retired judges, Justice Kurup has displayed remarkably bold and independent thinking and deployed innovative techniques with regard to his judgment. See Nixon v. U.O.I. (1998 (2) KLT 712). I need only quote with approval and approbation the following words of a legal academic commending Kurup, J. on this:-

"The judgment rendered by Justice K. Narayana Kurup of the Kerala High Court in Nixon v. U.O.I, is conspicuously truthful, refreshingly forthright and aggressively bold. It is only once in a while that one comes across such sensible discourse on sensitive, but vital, topics of current importance. It assumes importance in other respects also. Here is a judge who writes on the sporadic forays into the wild world of politics by his former colleagues. Every word he employs signifies his agony. Every thought he expresses is tinged with the concern the judge has for the reputation of the institution of which he is an essential part. This uniqueness of the judgment calls for a detailed examination of the different contours of the topic Justice Kurup has dealt with". (Dr. K.N. Chandrashekara Pillai "A Comment on Nixon v. U.O.I., Academy Law Review, Vol. 21, Nos.1 & 2(1997), P.237.)

(XXV) It is not for the first time that pro bono publico law suits expressing grave concern over acts and things dangerous to public health are coming up before Courts. In T. Vasudeva Pat v. U.O.J. ((1990) I Karn. L.J. 403), in a Writ Petition under Art.226 of the Constitution seeking for direction to prevent the spread of AIDS by blood donors, Justice Chandrakantha Urs observed that the reliefs claimed were couched in vague terms that no materials were placed before the Court to call for such directions, that there was no breach of statutory duty pointed out by the petitioner and that the Court cannot assume to run the Health Department of the State by issuing the directions sought for, and dismissed the petition as mis-conceived.

(XXVI) In sharp distinction to this approach, the Kerala High Court acting on a public interest litigation by Niyamakendra directed the State Government to issue instructions for the use of disposable syringes in all blood banks and hospitals in order to safeguard the interest of AIDS patients (Niyamakendra v. State of Kerala & Ors. - order dated 24.8.1992 in O.P.No.9814/1992).

(XXVII) M.C. Mehta, the inveterate and indefatigable P.I.L. lawyer, tiled a Writ Petition under Art. 32 of the Constitution of India before the Supreme Court complaining of the danger of radiation in the Gama Chambers of the Atomic Energy Regulation Board located in the Jawaharlal Nehru University, Justice R.N. Misra and O.L. Oza granted relief including protective steps to be taken and directing the University to pay Rs.1 lakh each and the premium for insurance to the concerned employees. (See Singh Gayatu, Anklesaria Kerban, Gonslave Colin (Edrs). The Environmental Activists' Handbook', Colin Gonsalve Bombay (1997) p. 291).

(XXVIII) One has, however, to appreciate that when the Legislature and the Executive have failed in a democratic system like ours and a Republic like India, people can pin hope only on the judiciary, the third arm of the Government. Though the judiciary cannot, according to this author, claim to be an acme of perfection or personification of immaculate excellence, by and large the judicial institutions in the country have acquitted themselves well in the discharge of the duties assigned to them in the Constitution of India. Further, in spite of the fact that notices prohibiting smoking are displayed inside buses, railway compartments, cinema houses and even in air-conditioned restaurants, these are violated with impunity and impudence by the smokers, and the authorities concerned keep their eyes shut and refuse to take any preventive or punitive action. Recently, this writer had an occasion to point out to the owner of a petroleum outlet in the city that the driver of the vehicle who brought the tanker lorry to deliver petrol was holding a lighted beedi in his hand. The owner did not take it seriously. Similarly, in the railway compartments, the inconvenience and the suffocation felt by the fellow - passengers are totally ignored by the smokers, who go on a smoking spree, once the train starts moving.

(XXIX) Environmental protection litigation explosion, according to critics, has become a social scourge in India and is threatening Indian economic health. Although the disdain for this litigation is fairly widespread, the perception of its pros and cons is narrow and native. This generates an edgy, uncompromising confrontational climate, characterising Indian society. This article does not seek to explore, one ever-arching explanation for galloping judicial activism in the context of the recent Kerala High Court judgment. Whether the decision will breed an adversarial culture by fuelling a society which is obsessively focused on a self-centred individualism is anybody's guess. The decision, it can, however, be said, dominates public attention by instilling a continual fear of being slapped with a criminal charge by the police, to which accepting bribes is not anathema.

(XXX) It is also necessary to sound a note of caution against the Court suffering from a not-so-magnificent obsession - with public interest litigation. As the Hon'ble Supreme Court rightly emphasised in Shri. Sachidanand Pauley v. State of West Bengal (AIR 1987 SC 1136); "There is the need to restraint on the part of public interest litigants when they move the Courts, P.I.L. has now come to stay, But one is led to think that it poses a threat to the Court, and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the P.I.L.'s the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions".

(XXXI) As Schlag says "Law demands the belief that there exists some techniques in faculty that enables decision-makers to balance incommensurable goods (for example, the flag against the First Amendment) in order to reach correct conclusions. Law demands the belief that such balancing decisions are inter-subjectively valid among a sufficiently large community (namely, citizens) or a sufficiently enlightened community, (namely, the legal profession), that the decisions are legitimate. (Piere Schlag, "Laying Down the Law" P.6). The opinion delivered by Justice K. Narayana Kurup of the Kerala High Court on his own behalf and on behalf of Acting Chief Justice A.R. Lakshmanan assumes relevance in this context.

(XXXII) Public interest litigation has become the new Kerala frontier, and few cultural symbols or myths carry as much importance to litigation-minded Keralaites as this frontier. On the litigation frontier, practically any issue can now have its day in a Court.

(XXXIII) If being an effective judiciary means making the indisciplined exercise of power palatable by garnishing it with rhetoric and massive learning, the Kerala Bench is a Hall of Fames. The sudden popular muttering that have greeted the decision in Ramakrishnan have luckily not turned into a full-throated row.

(XXXIV) Dr. S.N. Jain, former Director of the Indian Law Institute said, "If carefully and prudently used, the P.I.L. has great potential in correcting the administrative wrong, but if liberally and indiscriminately used in all kinds of cases, it may turn into an engine of destruction". (S.N. Jain, "Standing and Public Interest Litigation')

(XXXV) In fine, let us console ourselves with the words Rabindranath Tagore; "If you shut your doors to errors, truth will be shut out."

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.