Inimitable Sri V.R. Krishna Iyer

(By V. Lakshmanan, Advocate, Tirupur)

Venerable Sri V.R. Krishna Iyer, popularly known as V.R.K. to all is an icon. That he is a recipient of our nation's second highest civilian award Padma Vibhushan, is only a confirmation of his status as a statesman, a renowned retired Supreme Court Judge, a reviewer, a persuasive speaker, a writer par excellence, above all, a humble, noble human being-all rolled into one.

In the field of sports, it is universally accepted that champions are born and not made. Such an observation is bound to be true in the case of Sri Krishna Iyer also. Though this writer has neither the intelligence nor the requisite credentials to write on a great man, it has become necessary that a write-up on this occasion is indispensable. In fact, the great man deserves a thesis.

Sri Iyer is a many-splendoured genius. We come across personalities who excel in a particular field. But Sri Krishna Iyer mastered at least half-a-dozen spheres. On that score, Sri Iyer is unique. That an individual can achieve so much in his life is only a pointer that God's selective creations could be astonishingly amazing.

His impression son social justice, which is pitted against legal justice, are indicative of his legendary vision and gifted mind. He is a firm believer that criticism carries a crusade to cure as well as crucify. A humanist, an activist and a crusader, his ceaseless campaign for human rights and social justice is only well-known.

An illustrious example and the nearest definition of a great judge Sri Krishna Iyer has rendered time-honoured judgments. This writer is reminded of the greatest jurist of the past era, Benjamin Cardozo, who defined a Judge thus:

"The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiments, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life'."

Needless to state, Sri Krishna Iyer was the quintessential Judge, stately, dispassionate, knowledgeable, well-liked, humane, rangy, resourceful and ready-witted, with performance always matching his potential. Nothing surprising that he is too familiar a name to bear repetition.

A profile on Sri Krishna Iyer must be a combined study of his Judgeship and the quality of his judgments. A savant of several innate gifts, Sri Iyer has laid down judgments of unmistakable punditry. Gliding through the length and breadth of law with precision of a master craftsman, he would bring the best of any pro vision of law with the result the subsequent judgment on the said point had no scope to emulate Sri Krishna Iyer's observation. And, his ability as a Judge is displayed in no uncertain terms in cases where he was governed by a precedent. The wizard of the art of creativity would not only restore the precedents, but would further revitalise and refurbish them with his poetry-like prose. One, on reading his judgments, has a feeling that his judgments are narratives of a poem, nay, the poem itself. The literary attainments of the Judge coupled with his ability to delicately blend law with the lusture of language guaranteed the preservation of the judgment for posterity as they are fine-tuned for the future. They are full of intense expressiveness and are infused with refinement and vitality. His English, assimilative and amorphous, had no inhibitions. This enabled Sri Krishna Iyer to lay down law not only fairy-tale creativity but also with cast-iron certainty. He never indulged in artificial and attempted expressions. They were always natural. This ability greatly enhanced the value of his judgments. The impassioned presentation in delectable diction is an unqualified tribute to his popularity.

The ability to understand the facts well and the law better enabled Sri Krishna Iyer to pronounce ageless judgments, punctuated by brilliance. His judgments are still vibrantly alive as they are a celebration of his judicial valour and prowess. They are binding precedents, the catalytic factor being judicial brilliance coupled with luminous lucidity. Those judgments are lasting works. As one reads his innumerable judgments, there is no intellectual exhaustion principally due to his virtuosity. A versatile talent with a literary bent of mind, his is a name to conjure with as he had pronounced judgments of enduring significance and pervasive influence. In short, his judgments are of all times and not of the hour.

Arguably the most original and perfound thinker within the legal firmament, Sri Krishna Iyer was destined to solve some of the intractable intricacies of law. The intrinsic principles of law were not of any challenge to him. The deeper phases of lav. foundthemselvesreborninhisjudgmentsaslawwasofunceasinginteresttohim. Small wonder that various legal vicissitudes were nowhere portrayed, explained and answered more overtly than in his judgments.

A visionary judge and venerated representation of fearless and free judiciary, he was an exponent and defender of the finest legal principles. Endowed with inexhaustible knowledge of law, his judgments were finished products, unflawed in their constructive principles of law, his governing vision of law unmistakably legendary. His judgments carry intimations of unlimited judicial energy, they resonate with powerful dynamism. An institution by himself, his style had certain austere majesty that it extorted (still extorting) a reverential awe. Not one to be shackled by dogma of tradition and whose attitude had never been one of servile acceptance, his judgments continue to be refreshingly different. A Judge of exceptional ability, he experimented with the content, form and language of his judgments that they displayed new dimensions. His endeavour was to break away from the confining walls of words (catch phrases) that the impact of his judgments, both actual and likely, echoes down the years. Sri Iyer has given us a corpus of rich heritage of judgments with heightened excellence. What sustains his judgments is the inner core of embedded erudition. Behind the glitz, grandeur and glamour his lasting judgments, one can find the spark of endearing individuality. Ably supported by stimulating eminence and erudition, and supplemented by knife-edge analytical mind (which are indispensable of his persona) he was able to pick up the crux of the litigation very early. He would understand intimately the background of facts leading up to the case. The scholar in him was always alive to the law involved with his desire to pay attention to the minutes but important details that the judgments never led to grotesque results. Hollow legal platitudes, misleading analogies, skill in meandering outside the facts of the case and astuteness in creating a labyrinth of confusion never stood a ghost of a chance of winning his approval much less his admiration. Countless were the cases/replete with knotty questions of fact and thorny questions of law-that had come up for treatment on his judicial anvil and his masterful judgments remain as irresistible precedents for the generations to come. His judgments are exotic indeed. They also have practical applications to human life.

As a speaker, he is an instant draw. His oratorial skills contain the right intonations and pauses. Even today, he is participating atleast in one meeting per day (at times two per day). His elastic intelligence absorbs all types of subjects that he could address any type of audience. He is travelling extensively with infectious enthusiasm and boyish zeal. Nothing surprising that he is extempore.

As a writer, he is simply peerless. Whether it is an article or a book review, his contributions have a touch of class. He could write on staggeringly diverse aspects. The wealth of informations, the delightful style of narrative and wide coverage of ^ observations only prove the liveliness of his faculties and sharpness of his observations. His writings are always stately, complex ideas being rendered in uncluttered, perfectly-nuanced prose, which involves careful deployments of memorable lines and use of echoing phrases, making his writings as resonant as his speech. Whether it is a judgment, a speech or a write-up, one would only be amazed at Sri Krishna Iyer's fecund farsightedness. It is difficult to make out whether his style triumphes over substance or the substance triumphes over his style.

No sad mousings. No cane chair conferences and arm chair advices but an eventful journey from a vibrant present for the future good of India. Comparisons are odious. It is incorrect that he is first among equals as he is incomparable. He is all alone in an exalted position shedding light on very many aspects of life and living. Oscar Wilde comes handy:

"It is the personality and not the principle that moves the time".

About Dishonour of Cheques

(Joseph Varghese Thattacherry, Advocate, Changnacherry)

A few questions regarding dishonour of cheques are discussed below:

1. Is a Judicial First Class Magistrate competent to try a person accused of an offence punishable u/s. 138 of Negotiable Instrument (Amendment) Act 1988, (in short the "Act") the cheque amount of which exceeds Rs.2500/-?.

2. Which is the place of offence under the Act?

3. If there is no strict compliance of the pre-conditions contained in clause (a) to (c) of S. 138 of the Act, will the section apply?

1. Competancy of the Judicial First Class Magistrate to try the offence under the Act.

The Act is one which comes under "any other law" under S.4(2) of the Criminal Procedure Code. Since the Act does not contain any provision for regulating the manner or place of inquiring into or trying the offence, it has to be dealt with according to the provisions of the code.S.5 of the code has no application as no special jurisdiction or power is conferred or any special form of procedure prescribed by the Act. So the provisions of the code are to be applied to cases under the Act, subject only to S.142 of the Act, which has only limited operation. S.142(c) says that "No court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the First Class shall try any offence punishable u/s 138 of the Act." It means that courts superior to them are also empowered M try such offences. As per S.26 (b) of the code when any court is mentioned in any other law, cases under it are to be tried in such court only. By S.29 of the code the First Class Magistrate is empowered to impose a maximum fine of Rs.5000/- only, whereas the Chief Judicial Magistrate has powers to impose unlimited fine. As the drawer of a dishonoured cheque is liable to a fine of twice the amount of the cheque and the First Class Magistrate could not impose fine exceeding Rs.5000/-, he has no jurisdiction to try those cases the amount of which exceeds Rs.2500/-. His powers are limited only to cases involving cheques the amounts of which do not exceed Rs.2500/ -. Other cheque cases are exclusively trial by the Chief Judicial Magistrate.

The purpose and object of the legislation is not only to punish the accused but also for the speedy recovery of the cheque amount to the payee or the holder in due course, applying S.357ofthecode. That exactly is the reason why the quantum of fine is tagged to the amount of cheque. So out of the fine realised compensation due u/s 30 of the Negotiable Instruments Act could be paid to the complainant. If it is not so paid or could not be paid the very purpose of the legislation will be defeated and justice will not be meeted out to the complainant. Taking these aspects also into consideration and in view of S.29 of the code, if the amount of the dishonoured cheque exceeds Rs.2500/- such cases shall have to be tried exclusively by the Chief Judicial Magistrate.

Whenever the legislature intends to invest the Magistrate with enhanced powers in excess of the powers under S.90 of the code it does so by making provisions to that effect in that special Act itself. Examples are many. S.21 of the Prevention of Food Adulteration Act, 1954, S.36ofthe Drugs and Cosmetics Act 1940, S.104-E of the Karnataka Forest Act are some of them. Identical section as we find in S. 142(c) of the Act, viz "No court inferior .... shall try any offence" are contained in those Acts also. At the same time those acts contain special provision investing Metropolitan and First Class Magistrate with enhanced powers of sentencing. As such a provision is conspicuously absent in the present Act, the powers of sentencing by those Magistrates are governed only by S.29(2) of the code. Support for the above view could be found in a recent decision reported in 1990 CRL. L.J. 989. In that case it was held that, where it was crystal clear that quantum of sentence sought to be imposed was beyond the power of the Magistrate u/s. 29 of the Code, he shall commit the case to the court of session.

It is idle to contend that, if the Magistrate at the end of the trial is of opinion that the accused ought to receive more severe punishment than he is empowered to inflict he could submit the proceedings and forward the accused to the Chief Judicial Magistrate u/S.325 of the code. In that case, the case may have to be tried denovo which would be a waste of public time and money and it would also cause harassment and hardship to the accused as well as the complainant. In respect of cases u/s.138 of the Act which are beyond his jurisdiction to try and which are pending before him, the Magistrate may invoke S.201 or S.322 of the code. He may either return the complaint u/s.201 for presentation to the proper court or stay the proceeding and submit the case to the Chief Judicial Magistrate along with a brief report under S.22.

2. Coming to teritorical jurisdiction the question is, which is the place of offence. In order to fix the place of offence we have to ascertain what exactly is the offence under the Act, First paragraph ofS.138 and the heading of the Act speak eloquently as to what exactly is the offence. The heading is "Of penalties in case of Dishonour of certain cheques for insufficiency of funds in the account". Penalty is for offence, and that is described therein as, dishobour of cheque. So the offence contemplated in the Act is dishobour of cheque. Again the section says" where any cheque drawn by a person.......is returned by the Bank unpaid........, such person shall be deemed to have committed an offence". So the act says, the moment a cheque is returned unpaid, the offence is committed. Thus dishonour of the cheque is the gravamen of the offence and the place of offence is where the cheque is dishonoured. If the payment is made in response to the notice of demand with in the prescribed time the offence is excused and no action would lie. It is submitted, non payment is not the offence and dishobour of the cheque alone is the offence. Non payment is only a condition precedent for lodging the complaint.

In 1989 (2) KLT 740 and 1991 (1) KLT 893 it was held that on failure to make the payment, the offence is completed. Even if failure to pay is the offence or part of the offence, the question arises which is the place where the failure to pay took place?. It is at the place of residence of the drawer and not where the payee or holder in due course resides. Because it is the "non-payment" and not the "non-receipt" that is made an offence. Also it is pertinent to note that the words used in the sub clause (c) of S.138 are "the drawer of the cheque fails to make the payment of the said amount" and not "the payee or holder in due course fails to receive the said amount". Again if a payee in Trivandrum endorses a cheque to somebody in Delhi or Calcutta and on presentation the cheque is dishonoured and the holder in due course files a complaint, the drawer in Trivandrum will be put to the ordeal of appearing and contesting the case in that far off place. If that be so, even if the cheque is a bogus one or that the drawer has very valid contentions to make, many will not be able to defend their case. That is not a situation which the Parliament ever intend to happen. However it is a cardinal principle of interpretation that, in interpreting a statute, that interpretation which causes lesser hardship to the accused has to be accepted. Viewed in that aspect also the offence shall be deemed to have been committed at the place of residence of the accused. Payment is usually made by sending a demand draft or making a telegraphic transfer from the place of residence of the drawer. Thus in any view of the matter the place of offence shall be deemed to be where the cheque is dishonoured or if non payment is deemed to be the offence at the place of residence of the drawer.

3. Next, the act being a special one its provisos are to be strictly complied with, so if the time stipulated therein are not strictly adhered to, nothing in the Section will apply and the court shall not take cognizance of the offence. Similarly if the payee or the holder in due course makes a demand for any sum in excess of the cheque amount like interest, bank commission, notice charge etc. it will not be in compliance with clause (b) and hence invalid. In that case also S.138 of the Act will not apply.

"Bork" - The Best Judge that the American 

Supreme Court Never Had

(N. Haridas, District Judge, Manjeri)

Robert Bork - the noted American lawyer and jurist had already suffered the nation's anger as the sharp-shooter in the Saturday Night Massacre in the heady days of Watergate. President Nixon wanted to dismiss Archibald Cox - the daring Watergate Special Prosecutor, who wanted to prosecute the President himself, come what may. This was too much for Nixon and he ordered Attorney General - Elliot Richardson to dismiss Cox, but fearing the violent backlash, he refused to fire and resigned. His deputy - the Solicitor General William Ruckelshaws also opted to quit, rather than sign the infamous decree. Who will then carry out the President's fiat was the question, and now it was the turn of the Asst. Solicitor General - Robert Bork. As a Nixon loyalist, the Bork moral was that it was pointless for him also to abdicate, as the order shall have to be carried out by someone, and as a dutiful subordinate he will sign the order. He signed the historic warrant setting in motion a political storm in the country. The order was condemned by the media as the 'Saturday Night Massacre'. This was long back in 1973, and much water has flown in river Potomac since then. The almost forgotten Bork, after a long pause, hit headlines again in 1987, when the American Senate refused to confirm his as the 106thJudge of the Supreme Court. Ronald Reagan - the very powerful President bemoaned that his right to nominate Justices to the Supreme Court has been unjustly invaded.

2. It is the constitutional directive that any Presidential nomination to the Cabinet, the Supreme Court and high offices shall go for Senate confirmation, and by convention, such confirmation hearings were only routine matters acknowledging, in most instances, the right of the executive to appoint. There were rejections in the past also, but in the case of Bork the Senate guillotine was taken as an affront to the executive power of the union. The background of the rejection was the tempestuous political war then going on between the 'original intenters' and the liberalists regarding the plenary authority of the Supreme Court for judicial review. Till the Reagan re-election, the liberalists were ruling the field, but now there is strong rethinking among the people also that the Supreme Court is vocariously eating into the powers of the legislature, and thereby the rules of the separation of powers doctrine also have been undermined. A large section of the people felt that they have enough of judicial legislation, and any further attempt to hive a judicial government needs to be checked. The conservatives contended that the liberal march headed by the Supreme Court was illegal and ultravires. The way out they suggested was to reconstruct a conservative majority in the Supreme Court by nominating more strict constructionists. According to them Robert Bork - a stalwart in the Nixon Regime - was a well known originalist most suitable for the job and in this choice they had the President's support also. But the liberalists in the country, especially the blacks and minorities were alarmed at the prospect of a Bork entry into the highest tribunal, and at any cost they wanted to stop Bork whom they called a Walking Constitutional Amendment. Bork had already built up a career assailing many modern Supreme Court decisions as unprincipled, unreachable and indefensible. In his view dozens of rulings needed to be overturned because one illegitimate decision can spawn so many others, and said that the court needed to be steered along a course of original intent. This Bork assertion gave enough ammunition for the liberal lobby in the country for immediate revolt, but a Bork will not relent.

3. The originalists contended that many decisions of the Warren Court came as a real substitute for revolutionary legislation which the Congress has refused to adopt all these years. The Warren Court's pronouncements were really reformative and revolutionary, but the originalists argued that the Court taking upon itself the job of social revolution will end up in a judicial government which the Constitution did not and cannot permit. This move by the originalists will be fought by the blacks and the minorities. Political stalwarts like Edward Kennedy the one time presidential hopeful, and the widow of late Martin Luther King and the many indomitable liberal crusaders and academics entered the 'stop Bork battle'. The revolt is now very thoroughly designed and organised, and Bork was finding a very tough time.

4. When Justice Powell resigned all on a sudden from the nine Judge bench, there are four conservatives, and four liberals left, and the next nominee will lay down the Court's philosophy. The originalists have hoped that a Robert Bork, as the new addition, will ensure a conservative majority, after five decades of waiting. According to them a long innings for the liberal era was coming to an end, and a Reagan victory on the conservative platform was a shot in their arm to move ahead. In packing the Court, the start was made by the President in 1986 by elevating Justice Rehnquist-an originalist, as the new Chief Justice, when Warren Burger resigned. The Rehnquist appointment also raised many eyebrows, but he being already on the bench, the confirmation went through the rough seas unscathed, and after all the new Chief Justice was not going to alter the existing liberal majority also. As part of their well planned strategy, the liberals even issued a warning that the Senators now supporting Bork will have to face a liberal backlash in the coming Senate elections. To them the large gains made by the Blacks and Hispanics cannot be surrendered merely for the asking, and in the running battle they did not bother much that the nomination has been transformed into a political issue to join battle with no holds barred. Even the liberal think-tanks in American jurisprudence and the Deans and academics also entered the fray against Bork, but Bork also was equally adamant to fight the battle, which he believed, was unjustly imposed on him. The liberalists made a tall order and nightmared that the days of the Dred-Scott are returning; but the originalists countered by saying that the Supreme Court must stop playing the role of a super-legislature. The Borkites accused that for the first time in history, the President's right to appoint Justices has been brought down to be resolved through a political referendum.

5. It was in this background of confrontation that the Senate Judiciary Committee (SJC) was going to start the confirmation hearings. Many bigwigs in the administration and outside will take the stand. Bork also was preparing for the long awaited encounter in the ornate Caucus Room in the Capitol bearing the look of a Roman amphitheatre. This modern amphitheatre has witnessed some of History's most dramatic scenes-The Tea Pot Dome, the Mc Carthy hearings, the Watergate drama and the many more, and now comes the chance for Bork to defend his judicial biography in the same battle-ground. In spite of the massive organisation and aggressiveness the liberals did not feel confident in the beginning that they can make a good case in the Caucus Room as the conservatives have got a new popular mandate just now, and a dominating President is at the height of his popularity. They launched a blistering attack and were going to present a galaxy of witnesses from all walks of life. The impact was so powerful that the majority of Senators who believed in the right of the President to nominate Justices started back-pedalling for fear that they will be losing the liberal and black votes in the next election, if they voted to confirm a confirmed originalist. Of course the Senate having a Democratic majority is to vote ultimately on the nomination of a Republican President, but the Senators have to contend with the question of propriety of over-ruling a presidential nomination merely on political reasons. There was no question about the superb qualifications of Bork for the job-both as a brilliant academician and as Appeal Court Judge, but he always maintained that the Court's liberalism was unconstitutional. The show-down in the Caucus Room was inevitable.

6. The Senate Judiciary Committee opened the hearings and one by one witnesses filed past the witness stand. Many were Celebrities. Former Chief Justice Warren Burger and former Attorney, General Griffin Bell appeared to testify in support of Bork. Ex. President Carter sent a message opposing the nomination. Prominent academicians and pillars of Bar also came and spoke and mostly against. Thirty two Law Schools Deans signed opposing letters drafted by Edward Kennedy and William Taylor. The public bodies who were in the forefront of this opposition were the National Organisation For Women, the Leadership Conference On Civil Rights, The National Association for the Advancement of Coloured People, and the list goes on. All sent witnesses into the Caucus Room to feed to the curiosity of television audience. But the nation was eagerly looking to Bork-what has Bork to say on his philosophy of original intent? In an unprecedented show of Senate power, Bork was questioned for eight long days - It was not mere questioning - he was often condemned for not being apologetic of his advocacy of strict construction, and there were accusations that he never was a progressive and was deadset against any expansion of civil liberties. His personal philosophy, rather than his legal equipment, was the theme of interrogation and the proceedings was assuming the character of an adversay criminal trial. Perhaps such nomination trial of a Judge is unheard of in Anglo-Saxon judicial history, but this was the American way for long, and even a Bork was only eager to go to the Caucus Room. Bork made a valiant defence and he never tried to please any opponent. But in the last stage of the hearings, the Bork defenders charged that the Committee hearings are turning into a real witch-hunt. At that moment their regret was that the White House was doing nothing to retrieve the nomination, and they complained that the White House Chief of Staff even turned a deaf-ear to their entreaties for a full scale White House offensive to win the non-committed Senators. As the events in the Caucus Room wound by, many Senators, gripped by the fear of a liberal backlash, switched sides and went over to the anti-Bork platform. About the Senate hearings and its conclusion, Bork never entertained any illusions and according to him it was now inevitable that the Senate Judiciary Committee will give him a 'no'. The Committee voted to reject the nomination.

7. A dauntless Bork again will not give in. He informed the President that he will not withdraw, and will insist for a full-Senate vote though all prospects were absolutely adverse. The White House officials advised him to withdraw, but Bork told them bluntly that what happened to him shall not happen to any future Judge. He said "A war is going on to control the legal culture. The process of confirming Justices for the Nation's highest Court has been transformed in a way that should net and indeed must not be permitted to occur again. Judges are not appointed to decide cases according to the latest opinion polls". Mrs. Mary Allen Bork - one of the vocal defenders of her husband said that all urgent campaign is needed, but Bork will have none of it. She complained that her husband has been treated by the Senate very unfairly. On 23-10-1987, the full Senate will take the vote. It was 42 for Bork and 58 against. An embattled Bork was sitting then in the luxurious suite of Madison Hotel, sipping champagne. He was celebrating t>e defeat to come so soon.

8. Perhaps no nomination to the Supreme Court, kicked up the nation anxiety as high as the Bork case, and the originalists felt humbled that the rare opportunity to change the course of the Supreme Court has been mishandled. The Rehnquist nomination started in rough weather, but he had an almost smooth travel to the throne of the Chief Justice because still he was in the minority. The liberals and the blacks rejoiced that they have stopped the President's bandwaggon that moved ahead to pack and upset the balance of power in the Supreme Court. But the battle for nomination produced an unusual result. The victim of the Senate rejection - Robert Bork shot into fame overnight as a legal celebrity. After some days, Bork resigned as Appeal Court Judge and went out into the outer world.

9. In the Senate enquiry the many instances of historic importance regarding the relevance of such political wars set in motion to impeach the previous biography of Judges remained undebated. The two hundred year history of the Court tells us that not many Judges of the Supreme Court behaved on predictable lines and the most glaring example was Earl Warren himself who never did reveal any streak of liberalism as Governor of California or otherwise. The Warren conversion was quite unexpected and deeply regretted even by his appointer-President Eisenhover. On personality study, the bench behaviour of a Judge is actually part of his judicial statecraft which once in office, he is free to modulate. Justice Clark was the favourite Under Secretary of President Truman, but this Truman protege, once elevated to the bench, behaved quite opposite to the wishes of his erstwhile master. In the Steel Seizure Case he joined with the majority to strike down the Truman decree, and the story goes that thereafter Truman never referred to his name without an obscene adjective. There were known liberals who joined with conservatives and there were original intenters and strict constructionists who became confirmed liberals later on. There were also many who brought the great compromises also. The kind of judicial statecraft and legal philosophy to be followed by Bork on the bench can be read only by his conduct in office, and this was evident from his replies in the (non) - confirmation hearings. He was coming to the view that long held decisions are there to stay, as retrospective overruling will destabilise the settled rights. Another case study is- Warren Burger - the Chief Justice handpicked by Richard Nixon to his undoing. In the Watergate tape case, Burger ruled against his mentor and Nixon had to leave the White House weeping and wailing and many jurists even condemned that the Burger reasons are as bad as a compromise formula. But the only high court which worked very well with political appointees for two hundred years is the United States Supreme Court, which reached its moment of truth in Marbury v. Madison, when the great John Marshall, by declaring some of his own orders illegitimate, laid the foundation for the powerful theory of judicial review. But these logics never came to the rescue of Bork and there was no stopping his opponents, and for the first time in history, the nominee to the highest Court was brought down for a public trial of his legal philosophy. In order to retain its historicity, power and impartiality, the bench is entitled to be represented by all shades of opinion. The great omission in the Senate proceedings was that the judicial merit of the candidate suffered a total eclipse in the running battle between the original intenters and the ultra liberals. One bad consequence will be that after rejecting Bork, the Senate will be in haste to convince the nation that they are not obstructionists, and the next nominee, even if an unknown quantity, will be readily confirmed. The biography of the Judges of the United States Supreme Court is the story of nominees disappointing and even betraying their mentors in extreme thanklessness, but that disloyalty has been one of the Court's greatest merits.

A Reply to "Sweeping Sympathy or Justice Based on Law" By Advocate S. Parameswaran

(By Roy Chacko, Advocate, Ernakulam)

The comment on the reported judgment in 1998 (2) KLT 954 under the above caption as published in 1999 (2) KLT Journal Page 87 is to say the least not in good taste and cannot be characterized as a fair criticism of the Judgment.

1. The comment contains factual errors, though not serious, yet worthy to be taken note of. The judgment is dated 24.9.98 and not 24.9.99 as given in the comment.

2. The judgment has given an interpretation on S.147(2) M.V. Act, 1988 (and not M.V. Act, 1987) following certain decisions of the Supreme Court.

3. The brief facts of the appeal have been set out in the opening paragraph of the Judgment. The contention advanced by the counsel for the Insurance Co. is given in para.2 of the Judgment. The allegations of the Insurance Co. as could be seen from para.2 of the judgment is that there had been breach of the conditions of the policy by allowing more than the required number of passengers permissible under the permit issued to the owner of the vehicle. The specific contention of the appellant Insurance Co. was that as per the policy, the owner could carry only 6 passengers including the driver, whereas the vehicle had carried 11 passengers. The Claims Tribunal as well as the High Court found on facts and on evidence that there is nothing to show that the insured had permitted the driver to carry persons in excess of the maximum capacity permissible under the policy.

4. The essential question therefore was whether there had been breach of the conditions of the policy and consequently whether the Insurance Co. is liable to indemnify the insured.

5. The distinction sought to be made by the learned author on the factual matrix in the case decided by the Apex Court with the facts, pleadings and evidence in the case before the High Court is quite inappropriate and beside the point.

The facts and the issues before the Supreme Court in B. V. Nagaraju v. Oriental Insurance Co. Ltd. AIR 1996 2054 = (1996) 4 SCC 647 was as follows:

The question that arose for consideration was whether the carrying of persons in a goods vehicle more than the number permitted in terms of the insurance policy is so fundamental a breach so as to exonerate the insurer from the liability altogether. The other issue ancillary to the main question was whether the terms of the policy have to be construed strictly or be read down to advance the main purpose of the contract as held in Skandia Insurance Co. Ltd. v. Kokilaben. The appellant was the registered owner of a truck duly insured with the respondent Insurance Co. vide policy dated 24.8.90 expiring on 23.8.91. The vehicle met with an accident on 5.8.91, during the subsistence of the policy. Major repairs had to be carried on the vehicle, the expenditure of which was incurred by the appellant. The appellant sought for reimbursement of the amount from the respondent company which was rejected. The appellant thereafter approached the Karnataka State Consumer Redressal Forum. The defence of the Insurance Co. was that the goods vehicle had carried passengers, and besides their number was 9 which was in excess of the permitted number. The State Commission allowed the claim in part. On appeal by the Insurance Co., the National Commission set aside the order of the State Commission relying on the terms of the policy accepting the plea taken by the Insurance Co. The argument on behalf of the owner before the Supreme Court was that the terms of the policy have to be read down since the 9 persons travelling in the vehicle have in no way contributed to the occurrence of the accident. The Supreme Court disagreed with the judgment of National Commission. The Supreme Court opined that if the 6 persons permitted to be carried in the vehicle did not in any manner contribute to the accident, how can the added persons be said to have contributed to the causing of it. The appeal of the owner was thus allowed.

The learned author has either misquoted or omitted to give the correct sentences as appearing in the High Court judgment. The full text is reproduced hereunder:

"As a matter of fact no such contributory factor is involved in the present case. What is involved is, without the knowledge of the owner of the vehicle, the driver had carried passenger in excess of the permitted number of passengers. This is an irregularity committed by the driver and that cannot be attributed to the owner of the vehicle. "For this reason it cannot be said that the vehicle was used for a purpose not allowed by the permit." The other case decided by the Supreme Court, Skandia Insurance Co. Ltd. v. Kokilaben Chandravardan & Or., AIR 1987 SC 1184 = (1987) 2 SCC 654 referred to in B.V. Nagaraju's case, the focal point which fell to be considered by the Apex Court was as to whether the exclusion clause in the contract of Insurance will exonerate the insurer from the liability to pay compensation to the insured. The facts of the case were that while the licensed driver of the vehicle left the vehicle leaving the engine running, the driver had handed over the control of the vehicle (truck) to the cleaner. This was the immediate cause of the accident. The details of the accident are not seen narrated in the judgment. The High Court held that even though the principle of vicarious liability was applicable, as the owner in the present case had not given permission to the cleaner to drive the vehicle, the owner though became liable by reason of his vicarious liability, could not be held guilty of the breach of the contractual condition embodied in the policy of insurance. Therefore, the insurer cannot plead exemption on the ground that the owner committed breach of the specified conditions. The Supreme Court after a detailed discussion referring to English cases agreed with the conclusion of the High Court and dismissed the appeal. In my view the above decision amply illustrates the avowed policy behind the enactment of the provision for payment of compensation to hapless legal heirs of the victims of fatal accidents concerning motor vehicles. The author of the comment has not elucidated as to how the ratio of the above judgment is not applicable to the facts of the case decided by the Division Bench.

In the case decided by the Division Bench of the Karnataka High Court, the submission of the counsel appearing for the Insurance Co. was that since the owner of the vehicle carried 8 passengers in his car which was more than the permitted number as per the conditions of the policy, the car had been used for the purpose for which it was not licensed, and therefore, the insurance company is not liable. This argument was repelled. The Division Bench followed a decision of the Kerala High Court reported in 1971 ACJ 219 (Kesavan Nair v. Insurance Officer).

In conclusion, I have to state that the learned author has missed the important aspect of judicial adjudication. The facts of no two cases can be similar. The appellate court has only to see whether the decision of the Claims Tribunal is a possible or a plausible view on the facts, evidence and on the point of law. One cannot find decided cases on exactly the same nature as the case at hand. The reference to the renowned Jurist Justice Felix Frankfurter of the United States of America is in my view totally unwarranted. This reference could have been utilised for a more appropriate occasion. The learned author is assuming that in deciding the aforesaid case, the Judges have permitted their personal belief to overcome their stern professional conduct. The learned Judges have certainly rendered justice to the parties keeping in mind the principles enunciated by the Courts, the avowed object of the legislation, and above all have decided the case from a humane point of view.

Family Courts: an Object Yet to be Obtained

(By T.P. Sudha, Advocate)

After a long hue and cry from various women's organisations and of the recommendation of the Law Commission, the Family Court Act was enacted in 1984 with the object of promoting conciliation and securing speedy settlement of disputes relating to marriage and family affairs and matters connected therewith. The Act was brought to into force in Kerala from 10th October 1989 and Family Courts at Thiruvananthapuram, Ernakulam and Kozhikode were established on 6th June 1992. Later in 1994, Family Courts were established at Kollam and Thrissur districts also.

While some are of the opinion that this is an advancement from the angle of remedial jurisprudence, critics feel that Family Courts which were ushered with great fanfare are withering away. Though, seven years is a short span to evaluate, a brief analysis of the Family Court system in Kerala may help to reach a conclusion.

According to S.3(1)(a) of the Act, the State Government can establish, a Family Court for every area in the State comprising a city or town whose population exceeds one million and for such other areas in the State as it may deem necessary. The establishment of Family Courts on the basis of population was upheld by the Bombay High Court stating that this is a rational and intelligible differentia made to secure the aims and objectives of the Act and hence not violative of Art.14 of the Constitution [1].

In Kerala with a population of about 30 million, this has had the result that there are only five Family Courts. The workload and the disposal rate of the Family Courts at Thiruvananthapuram, Ernakulam and Kozhikode pointed out the inadequacy of only one Family Court at highly populated districts. So the difficulties faced by the litigants in other populated districts where Family Courts are not yet established are apparent.

From the analysis of the Act, it can be seen that it has identified the Family Court Judge as the pivot around whom all the process of conciliation are to be revolved. With regard to the special qualification for the Presiding Officer of Family Court, the Act stipulates:

"Every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriages and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected and preference shall be given to women.[2]

For appointment of Judges, in Kerala, at the present set up, the qualification of years experience at bar or bench is taken into consideration. Other qualification prescribed in the Section has not been seemingly considered for this. When a person who does not have any experience in counselling or conciliatory procedure is appointee he will normally have a tendency to go for adjudication than conciliation. The result i the failure of the very object of the Act itself. It is evident that the litigation under the Act is not normal civil litigation but is to settle disputes of the families through conciliation. The qualifications prescribed are rightly not merely of legal background but expertise in the said field. Hence for attaining the object of the legislator appropriate persons who possess the qualifications prescribed shall be appointed a Judges.

Even though the Act provides for one or more Judges, the State Government has appointed only one Judge for the entire district. Due to this reason enormous delay in the disposal of cases is occurred, which hinders the Court from attaining the objective of speedy disposal.

No Family Court system can succeed unless it has a well organised counselling service available to help parties to reconciliation and to lessen the adversary atmosphere. The counselling system under the Family Court Act, 1984 seems to b comprehensive. As per the Act, the State Government shall in consultation with the High Court, determine the number and categories of Counsellors, required to assist Family Court in the discharge of its functions and provide the Family Court with sue Counsellors, it may think fit.[3]

According to the Family Court Rules, there shall be attached to each Family Court a counselling centre and shall have a principal Counsellor and such number o Counsellors as the Government may in consultation with the High Court determine.[4]

Though the Act and Rules provides for appointment of sufficient Counsellors, in practice, the Courts are neither having sufficient number of counsellors nor a counselling centre is attached to the Court itself. In the present set up the Chief Counsellor is not a permanent officer of the Court. He is an officer of the Social Welfare Department. Since the Chief Counsellor is not available on full time basis, cases are made to be postponed with the convenience of the chief counsellor and thus the cases are delayed and it makes problems to parties also. Individual counsellors who are persons working in the field of social welfare do not attend the Court punctually.

Moreover, what is being dispensed in the Courts today is curative counselling. What is needed is preventive counselling which ought to be given before a relationship breaks down. But that need not be rendered by the Family Court. Voluntary organizations shall set up such counselling centers to the parties in need. So the counselling system in the present family court system needs a revamping in order to strengthen the conciliation process.

The Act makes it obligatory on the part of the Family Court to assist and persuade the parties in arriving at a settlements [5]. For this purpose, the enactment authorizes the Family Court, to follow such procedure as it may deem fit and to adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

Under Section 10 also, the Act gives freedom to the Family Court Judge to apply its own procedure to arrive at a settlement. This apparently is to relieve the Courts from the shackles of procedural technicalities so that they could deal with the matter before them quickly and in a more humane manner. But generally the provisions of Civil Procedure Code, Criminal Procedure Code and Evidence Act are applicable to the Family Courts. So what really happens is that the adversarial system creeps into existence from the back door though the concept of Family Court implies that adversarial procedure will be discarded. So the same delay which is registered when they were tried by a District Judge becomes the bane of the Family Courts also.

In the above perspective, it is imperative to find out the relevancy of legal representation in a Family Court. Legal representation as of right is barred by the Act. [6]The constitutionality of the Section is upheld by the Court in Smt. Lata Pimple v. The Union of India.

This provision appeared to be based on a notion that if lawyers are excluded from the proceedings in matrimonial disputes it can be conducted in a more informal atmosphere. But in the present system, it seems that exclusion of legal representation appears to be undesirable and counterproductive. As already said CPC, Criminal Procedure Code and Evidence Act are applicable to the Family Courts. Similarly the provisions relating to oral evidence, evidence of formal character, procedure for execution of decrees and orders made by the Court etc. show that legal expertise is essential in the matter. It is also pertinent to note that the suits and proceedings are regulated by the personal marriage laws of the parties in dispute. So the knowledge of respective personal marriage law is necessary to contest a case. Hence the denial of legal representation at the trial proceedings will only prove to be unjust and outmoded.

It is known that usually the Judges of the Family Court permit lawyers to participate in proceedings. Practically legal assistance is taken at every stage by the parties and the exclusion of lawyers in the Family Court proceedings remains as a ritual to be circumvented invariably.

Apart from all this, there are some other factors which accelerates the problems in the functioning of Family Courts in the present set up. The insufficiency of infrastructure is the main impediment. For the effective functioning of the system proper facilities should be provided by the Government. Even a Munsiff s Court has got more number of staff than a Family Court. Only four process servers are provided in a Family Court which is inadequate when the workload is considered, while in a Munsiff s Court, there are twelve process servers. Moreover only one Sheristadar is allowed in the Court. Complete administration including the examination of petitions, correspondence, overall supervision etc. is upon him. So it is suggested that as in the Munsiff's Court a Junior Superintendent below Sheristadar may be appointed. At least the facilities and staff provided to a Munsiff s Court should be provided to the Family Court for its effective functioning.

The inaction and non-co-operation of the police is a very important hindrance before the Court to execute the decrees. Especially in the cases of maintenance, notices are never served or replied and execution of warrant is also not properly done. Even in non-bailable warrants the position is not different.

To conclude, it is submitted that though the Family Courts Act as a legislation is a step forward in the process of giving relief to the concerned parties, the family court scenario is crying out for a second look. The anomalies that shroud the courts demand an urgent need for re-evaluation and rectification.

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Foot Notes:

1. Smt. Lata Pimple v. Union of India, AIR 1993 Bom. 255

2. Section 4 (4) of the Family Courts Act, 1984.

3. Section 6 (1) of the Family Courts Act, 1984.

4. Rules 14 and Rule 15 of Family Court (Kerala) Rules, 1989.

5. Section 9. Duty of Family Court to make efforts for settlement-

(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade, the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.

6. Section 13 - Notwithstanding anything contained in any law no party to a suit or proceeding before a Family Court shall be entitled, as or right to be represented by a legal practitioner : Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.