Computer in Legal Profession

(By V.T. Ahamed Iqbal, Director, Centre for Legal Studies, Kannur University,

Thalassery)

Computer the intellectual appendage of modern man is gaining more and more influence in the legal profession as well as in the judicial administration. The working environment of lawyers and judges is being rapidly changed by the computer. Unlike the other types of machines which changed the society this new machine has several peculiar features. It is more than a tangible piece of material. It is even coined as a scientific way of doing things in a faster and accurate manner. The machine can think or rather can do a kind of process of thinking. It helps to save much of the time and energy required for collecting, processing, storing and retrieval of data. The bulk of information can be stored by some simple process. The necessary data can be selected from it and a hard copy of it can be made at the click of a simple device.

A personal computer is no more an ornament or a scientist's tool. A lawyer can use his Personal Computer at his office for maintaining his office records, details of case profiles etc. A global lawyer use his lap-top (computer which has the size of a handy brief case) to do all the works while he is on journey. It can do all the works of a PC plus it can be used along with a cell phone through which he can sent or collect message from any part of the world in the form of sound, letters or graphics through the computer network. This can be done even while the lawyer is on a journey from continent to continent. An entire law library sans the dust and silverfish can be put in a compact disc. Popular law book publishers like Butterworths have started marketing bulk of legal information and compendium of legislations and precedents in compact discs which can be read through the laser heads in a computer. The entire office with the library has become a handy thing. Formerly the business executives of multinational corporate bodies were the only people with the computer assisted offices and the handy computer called laptop or notepad. But recently such computer assisted office or the 'virtual office' is becoming more and more popular amongst the lawyers the world over.

Computer has several utilities in legal profession. It is a helping hand in the office. To those trained in law and computer, it will provide several new avenues of job opportunity. Primarily the computer is used as a word processing machine. It can do marvels in the preparation of case briefs conveyancing, pleading, etc. There are several popular types of word processing softwares which has very useful features like editing, creating formats, merging the text from one file to other files, searching for a specific word or phrase throughout a document and substituting it with other words or phrase etc. The spelling checking thesaurus checking, pagination and repagination creation of index and footnote etc are other important utilities of the word processors. Large quantity of information can be achieved and can be retrieved in a very little time. The desktop publishing is another important category of word processing utility. The presentation of a document can be designed according to our aesthetic choice and the style of types, column, paragraph, lay out colour etc can be selected and arranged to our convenience. A graphic programme helps to draw pictures and using a scanner a photograph or any kind of graphics can be incorporated to a document. Further using multimedia it is possible to incorporate sound also in the prepared virtual document.

Formerly computer graphics was used by business professionals only. But it is identified recently that use of computer graphics is highly useful in the presentation of case in court room. It is possible to re-create an accident, present a contour map of a disputed land, prepare a chart or graph or compare two hand writings or signatures using the virtual media. The presentation can be prepared in colour and style of our choice. It can be made in the form of moving pictures or stills like slide. It is possible to take the printout of the presentation also. Electronic spread sheets which can also do the accounting works, preparation of projects and plans etc. provides another category of utility. The tax returns, the estate plans, calculation of damages in the legal injury cases, financial plans required for the profession etc. which will require good time for preparation can be done within a little time. To add impression to the presentation, charts, graphs and other visual displays can be created on the basis of the given data. Several types of templates for the spread sheets are available in the market or a new template can be created as per our requirement. Preparation of calendar or docket is a cardinal function of the legal office management. Using computer it can be done quite easily. The significant advantage of computer based docket system is that the data can be arranged in different manners at a time. The cases can be sorted on the basis dates, months, years, nature of cases, clients name, courts name etc. simultaneously. Quick check of files and updating of files can be done in a split second. The client service also can be done very promptly.

Time - a very crucial factor in modern world - needs an effective management to gain the success in life. The conventional Postal system which depends on manual works takes much time to transfer messages. Hence, it is called 'snail mail'. Computer based mail system known as E-Mail helps to send messages to any part of the world in a fraction of second at a very little cost. To keep in pace with the developing world the legal profession also has to accept this utility of computer.

The on-line services provides legal data base services required for legal research. The WEST LAW, LEXIS, EUROLEX, etc are the popular on-line services in the western countries. In India, the SCC and the JURIS are the known legal database services. The computer appended with a special device called modem connected to an ordinary telephone can establish access to other computers in the network. Internet a global system of network of computers is well known. The supply of legal data is done through this network. The data can be collected from the professional suppliers, libraries, universities etc. The use of computer reduces a great quantity of effort and energy needed in the legal research. The professional data provides supply of the full text of judgments, or the digest or the required titles of the topics and the copy of the statutes required by the subscriber. In India, there is no legal data service provider with total collection of Indian legislation and precedents. Incidentally it is interesting to note that the first and very popular legal database service in US the LEXIS which is now used in the world over was created in India in the year 1973 at the request of the Ohio Bar Association of US. But we have not yet made a computerised compendium of our own laws till this date. It is expected that in the near future the Supreme Court and the High Courts of our country will enter the computer network system. Then the judgments pronounced by the court of records will become available to all instantly. Similarly when the network is extended to all the Courts, Law Departments, Bar Associations, Legal Educational Institutions and Lawyers Offices the dimension of the legal profession will have a total change. Recently the Supreme Court of India has started a Website in the internet. By the expansion of the services available through the website legal profession and the general public will be benefited to a great extent. But there is a great impediment in this regard. It is nothing but the reluctance of lawyers to adapt with the changing world. On an informal survey held amongst the actively practising lawyers it is observed that out of one thousand lawyers practicing in certain Bars of Kerala seven lawyers alone were found using computer. Approximately 90% of lawyers do not have any idea about computer. If we wish to survive in this era of intellectual explosion and communication revoluation we have to keep in pace with time and we must be prepared to imbibe the intellectual innovations at the earliest.

Lincoln and Legitimate Expectation

(K. Sukumaran, Senior Advocate, Supreme Court)

There is much confusion even now on that elusive concept of legitimate expectation. Even among lawyers and judges. That emphasises the necessity of avoiding legal jargon and describing ideas in simple sentences. There is none to match in that exercise Abraham Lincoln, our own affectionate Abe. Who could give a better illustration of 'Democracy', in easy-to-understand language-as government of the people, and by the people, for the people. The idea is crystal clear. 'Legitimate expectation', as a legal concept, is of comparatively recent origin. Yet the abiding principle was known to the genius of Law. Little wonder then, that Lincoln could reach the core of the concept.

The story dates back to 1838. The place is Kentucky-well known for its chicken-charisma. Mrs. O.H. Browning, wife of his friend suggested to Lincoln that he should become her brother-in-law. And quickly too. Lincoln accepted the proposal, because he was 'most confoundedly well pleased with the project'.

Soon there was a visit by the lady-friend, this time with her sister. Lincoln inferred that it was an indication of agreement to a matrimonial arrangement. Lincoln had met her but a few years back. Lincoln was willing, as was Barkis. The girl was summoned to have a personal acquaintance. After all, they are to live as man and wife, till death doth them part. She came all the way to Kentucky, where Lincoln was then practicing as a lawyer. When they met Lincoln had the shock of his life. Time can play wonders with a feminine face. That happened here as well. Matters were tending to a tragedy, sadly enough.

The face of the innocent girl Lincoln had preserved in his mind had totally evaporated. Instead, there was a corpulent woman, who looked forty. His mind tossed like an Indian swing. At last, he came to a firm and logical conclusion.

The reasoning was perfect logic, it even had the grain of a sound legal principle, which in later times had been 'much laundered by lawyers and ironed out by judges, not always without a crease. We have a pet name for it: Legitimate Expectations.

The girl would have had great expectations of a congenial matrimonial home. She had acted on his representation, signifying his willingness to marry her. Indeed she had altered her position to her detriment, by so acting on the representation.. Then, it is neither proper or just to frustrate her desires or distress her by an irretrievable disappointment. Lincoln made up his mind: to marry her.

Lincoln sincerely and tenaciously tried to discover beauty in all her features. He almost succeeded, except as regards the face. If that is Fate, Lincoln would not meddle with it.

They had a long stroll. Many topics were discussed, some relevant, and some utterly irrelevant. A romantic sauntering does not limit the topics of conversation to rational themes. At long last, Lincoln came to the point. Mustering all courage, Lincoln, did propose to her. The reply was taken for granted.

Lincoln had told the sister that he would take her for better or for worse. "I made it a point of honor and conscience in all things to stick to my word, especially if others INDUCED TO ACT ON IT...." he has stated. Mark the other words as well:

'Well' thought I, 'I have said it, and be the consequences what they may, it shall not be my fault if I fail to do it'.

Lincoln also tried to convince himself that 'the mind was much more to be valued than the person'. In that she was not inferior to any with whom he had been acquainted.

There was yet another assurance. During the stay there, Lincoln had 'letters from her which did not change his opinion of either her intellect or intention, but on the contrary confirmed it'.

When we remember that Lincoln was a lawyer at that time, we can appreciate his narrative better in his inimitable style:

"As the lawyer says, it is was done in the manner following, to wit: After I had delayed the matter as long as I thought I could in honor do, I thought I will bring it to a consummation without further delay and so I mustered my resolution and made the proposal to her direct; but shocking to relate, she answered. No. At first I thought she did it out of an affection of modesty... but on my renewal of the charge I found it that she spelled it with greater firmness than before. I tried it again and again, but with the same success, or rather with the same want of success.'

The tragedy was complete.

Lincoln neatly summed up the position. "Others have been made fool of by the girls,.... I most emphatically in this instance, made a fool of myself'.

All these facts are chronicled in Lincoln's letter to Mrs. O.H. Browning which, interestingly, and significantly too, is dated 1st April 1838.

The moral of the story is a glittering beacon.

If principles of Promissory Estoppel' have been somewhat couched in confusion in India, one can see in Lincoln's words clarity in every sense. For, he had no slant towards Executive nor undue sympathy towards the promise.

One of the latest and well considered judgments on this complex concept is rendered by Majmudar and is reported in (1998) 2 SCC. Thomas J. followed that path in a still later decision in (1998) 7 SCC. Yet Anand, J., as he then was, persisted on (what many may feel) a narrow view even when later decisions indicating a contra view had been presented before him. (Prima Industries case)

Lincoln's description of 'Promissory Estoppel' is as clear and instructive as his definition of 'Democracy'. Making a promise a matter of honour, has other enduring advantages. No industrialist or entrepreneur would rush to a State where one could only witness a procession of cradles and coffins in promises. Did not poet Frost sing:

"The woods are lovely dark and deep

But I have promises to keep."

New Year Gifts - A Post Mortem [1]

(Salim Kambisseri, Asst. Public Prosecutor, Grade I, Changanacherry)

The first part of 1999 (1) KLT has published two decisions out of which one to an extent, create doubt about the correctness of judicial reasoning and the other requires some clarification.

Sreenivasa Shenoy - A Legal Anatomy [2]

Facts are briefly worded as follows:

The petitioner was an accused in a P.F.A. Case before the Chief Judicial Magistrate, Ernakulam for the sale of the adulterated Toor Dal, which according to the Public Analyst contained 7.6% by weight of Kesari dal. At the instance of the accused the second sample was sent to Central Food Laboratory, Ghaziabad invoking the provisions of S.13(2) of the P.F.A. Act. The Certificate issued by the Director, Central Food Laboratory in Form II showed that the sample contained the presence of synthetic coal tar colour and hence adulterated. As per the certificate Kesari Dal was absent.

Even though some of the contentions were rejected by Madam Justice Sree Devi, it is apparent that she seems to have inspired by the contention of the counsel for the petitioner that since the Certificate of C.F.L. disclosed that the sample contained coal tar colour, which is prohibited by law, is a new offence and a "fresh consent" from appropriate authority" has to be obtained.

Madam Justice Sree Devi Observes:-

"Accepting this decision, I have to hold that a fresh sanction is necessary to proceed further with the case. Therefore, I direct that the learned Magistrate before proceeding further, will give the prosecution an opportunity to place the certificate of the Director of Central Food Laboratory before the appropriate authority for consideration and consent for continuance of the prosecution and in the event of no such consent of the appropriate authority is obtained and produced before the Magistrate within a reasonable time, not exceeding one month for the purpose, the learned Magistrate shall discharge the accused and drop the present proceedings. In the event of any such consent is obtained and produced by the prosecution, within the time allowed, the learned Magistrate may proceed with the disposal of the present proceedings in accordance with law. I do not find any ground to quash the charge Annexure-C dated 10.3.1997 of the Court below".

With due respect I have to submit that no question arise in this case for a "fresh consent" from "appropriate authority" as a consent is not at all required in this case since this is a complaint instituted by a Food Inspector by virtue of authorisation by the Government of India. It is only a complaint by an officer authorised for the purpose under S.20 of the P.F.A. Act.

S.20(i) of the P.F.A. acts is reproduced below to get a clear picture:-

"No prosecution for an offence under this Act; not being an offence under S.14 of S.14A; shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special order, by the Central Government or State Government. (emphasis supplied)

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred in S.12, if he produces in Court a copy of the report of Public Analyst along with the complaint."

Nay Sanction Nor Consent

On a careful reading of the above section with caution and circumspection with particular reference to the "comma" used in the section immediately after the word "except by" and also the meaning of the word "or" immediately following the "comma" will point out the following;-

There are two sets of authorities or persons empowered to launch prosecution under this Section. The persons empowered to launch prosecution are:-

a) Central Government, State Government and a person authorized by general or special order, by the Central Government or State Government.

b) Persons with the written consent of the Central or State Government or the written consent of a person authorised by general or special order, by the Central or State Government

In this case the complaint was filed by the Food Inspector by virtue of the authorisation which has been produced and proved in this case. Therefore, evidently this is not a prosecution instituted by the State Government. So according to this writer in this case the question of "sanction" or "fresh sanction" does not arise in this case.

I am buttressed in this view by the following two decisions:- (1) Food Inspector, Kasargod Circle v. K. Sankara Moolya [3] and (2) Food Inspector v. Arunachalam [4].

In the instant case the Government of Kerala issued a revised notification as G.O. No.6104/G3/95 H & FWD dated Thiruvananthapuram 20th March 1996 published in Extra ordinary Gazette dated 29th March 1996 (S.R.O. No.319/96) in exercise of sub-S.(1) of S.9 of P.F.A. Act 1954. Above G.O. was issued in suppression of all notifications on the subject, which appoints the complainant in this case also to be the Food Inspector for the local area mentioned against his name. The Explanatory note makes it clear that the Food Inspector is an authorised officer to file complaint under S.20 of the P.F.A. Act which reads as follows:-

"As per S.20 of the P.F.A. Act 1954 prosecution of offence under this Act shall be instituted except by, or with the written consent of the State Government. It is necessary that the Food Inspectors are authorised to institute prosecutions for offence under the said Act. This notification is intended to achieve the above object."

Admittedly, the prosecution having been launched by the Food Inspector who is an authorised officer by the Government of Kerala to institute prosecutions for offences under the Act, it goes without saying that no consent of Central or State Government is necessary for launching prosecution. So the question of "fresh consent" also does not arise. In this context, it is unfair on my part if I side step a Supreme Court decision Suresh M. Rajput v. Bhartiben Pravinbhai Soni & Ors. [5] A plain reading of para.5 of the above decision may confuse the mind of a reader that sanction is invariably necessary in all cases. In that case, the L.H.A. was designed as sanctioning authority. Question raised in that case was that whether the sanctioning authority has applied his mind to the report of the Public Analyst and other pertinent papers and documents submitted by the Food Inspector. That decision is not at all applicable in this case.

If for argument sake, one admits that consent is obligatory even then fresh sanction is not at all necessary, according to a catene of decisions. [6]

A contrary view in favour of the decision under discussion is reported in Rattan Lai and etc. v. State of M.P. [7] Earlier the best is to interfere the decision by a larger Bench. The author genuinely believes that the notification extracted above and the legal aspects projected by me might not have been brought to the notice of the learned single Judge.

Regarding Balan v. State of Kerala

In this case, it was held by his Lordship Justice Narayanan Nambiar that the reports of the Excise Inspectors can be treated as complaints relying on the decision reported in 1991 (2) KLT 323. Since the case was taken on file before the amendment of the Act, i.e., before 3.6.1997, the view is correct. But there is every possibility to confuse the mind of the professional infants. S.50 of the Abkari Act says that every report of the Abkari Officer can be treated as a report in accordance with sub-s.(2) of the Act of S.173 Cr. P.C. and it is extracted below:-

"As soon as investigation into the offences under the Act is completed, the Abkari Officer shall forward to the Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s.(2) of S.173 of the Code of Criminal Procedure 1973".

S.50A also makes clear the position. This author submits that above decision is not at all applicable to cases detected after 3.6.1997.

___________________________________________________________________

Footnotes:

1    In this Article the author wishes to comment upon Sreenivasa Shenoy v. Food Inspector,1999(1) KLT 17 and Balan v. State of Kerala, 1999 (1) KLT 13.

2    Cited Supra.

3    1986 (1) I.L.R. 607 Kerala.

4    1992 Crl. LJ.3930 (Mad.)

5    1996 Crl. L.J.1621.

6    See for instance 1977 Crl. L.J. 122 All., 1978 Crl. L.J.1036, 1989 (2) FAC 190.

7    1991 Crl. L.J.3302.

Why This Discrimination against Christians - Is Section 118 of the Indian Succession Act Unconstitutional

(By Tonny George Kannanlhanam, Advocate, Ernakulam)

The problems related to Indian Succession Act has become a matter of repeated debate and discussion. However, no constructive step seems to have been taken to remedy this situation. The following is a resume of the legal and related problems. This is presented which the hope that those concerned will take effective steps to improve the situation.

Section 118 of the Indian Succession Act 1925 reads as follows:

"Bequest to religious or charitable uses- No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by will executed not less than twelve months before his death and deposited within six months from its execution in some place provided by law for die safe custody of the Wills of living persons".

When the British settled down to govern India they found that there was no ascertainable law in the matter of succession for communities other than Hindus and Muslims. It was to fill this gap that the Indian Succession Act of 1865 was enacted.

The Indian Succession Act 1865 was repealed and the Indian Succession Act 1925 was enacted consolidating various other enactments in the matter of intestate (testate) and testamentary succession.

The Indian Succession Act 1925 (Act No. 39 of 1925) came into force on 30th September 1925. The Indian Succession Act 1925 was an attempt of the Legislature to embody into one comprehensive Act the law of testamentary and intestate succession applicable to all classes in British India instead of having different Acts for different communities.

The above Act consolidated the Indian Law of Succession. There were numerous statutes relating to intestate and testamentary succession and this Act repeals those statutes and re-enacts in the form of one Act all of them with slight alterations. The Act is therefore, a purely consolidating Act and no fundamental changes are made in this Act to the previous statutes governing the field.

The enactments consolidated in this Act are:-

1.      The Succession (Properly Protection Act) Act 1841, Act XIX of 1841.

2.      The Indian Succession Act of 1865, Act X of 1865.

3.      The Parsi Intestate Succession Act 1865, Act XXI of 1865.

4.      The Hindu Wills Act 1870, Act XXI of 1870.

5.      The Married Women Property Act, 1874, Act III of 1874.

6.      The Probate and Administration Act 1881, Act V of 1881.

7.      The District Delegates Act, 1881, Act VI of 1881.

8.      The Probate and Administration Act, 1889, Act VI of 1889.

9.      Succession Certificate Act, 1889, Act VII of 1889.

10.     The Probate and Administration Act, 1890, Act 11 of 1890.

11.     The Native Christian Administration of Estates Act, 1901, Act VII of 1901.

12.     The Probate and Administration Act, 1903, Act VII of 1903.

The provisions of Section 118 of the Indian Succession Act, 1925 has been borrowed from the statute of Mortmain and though it has been held that this statute has no application in India (Mayor of Lyons v. East India Co., I.M.I.A. 175) the principles laid down by the Statute have been enacted in this section. In England before the passing of the statute of Mortmain (9 Geo. IIC. 36) the policy was to favour gifts for charitable and religious uses. But the proneness of the people to make ill considered dying bequests under religious influence threatened to develop into a public danger and the above statute was accordingly passed in 1936 to prevent persons from making death bed bequests.

It can be seen from the above that the principle laid down by the statute of Mortmain has been enacted in S. 118 of the Indian Succession Act 1925.

It can also be seen that the only purpose of the statute of Mortmain was to prevent persons from making ill considered death bed bequests and that too under religious influence.

If the principles laid down by the statute of Mortmain has been enacted in Section 118 of the Indian Succession Act, 1925 and if the only purpose of the statute of Mortmain was to prevent persons from making ill considered death bed bequests and that too under religious influence then S.118 cannot be made applicable to those death bed bequests which are not death bed bequests and which are not at all ill considered and which are not at all made under religious influence.

By the statute of Mortmain (9 Geo. II, C. 36) severe restrictions were placed on alienation of lands to charitable purposes. This statute was repealed and replaced by the Mortmain and Charitable Uses Act 1888 (5 land52 Vict. C.42) which is still in force in England. Under this Act every assurance of immovable property - for any charitable uses is void unless executed at least before two witnesses, twelve months at least before the donor's death and enrolled in Chancery within six months before the death.

The object of Section 118 is to prohibit death bed bequests to religious or charitable uses by persons having near relations except under the above conditions. Such death bed bequests cannot be made by persons having any of the following relations: (1) Father. (2) Mother, (3) Son, (4) daughter, (5) Grandfather, (6) Grandson, (7) Grandmother (8) Grand daughter. (9) Brother, (10) Sister, (11) Nephew, (12) Niece.

On page 377 of Sanjiva Row's 1910 edition of Indian Succession Act of 1865 it is stated that nephew, niece or any nearer relative denote only legitimate relationships.

Part VI of the Indian Succession Act, 1925 deals with Testamentary succession. Pan VI includes Section 57 to Section 191.

Section 58 of the Indian Succession Act deals with the general application of Part VI. The above section reads as follows:

S.58. General application of Part -(1) The provisions of this Part shall not apply to testmentary succession to the property of any Mohammedan nor save as provided by Section 57 to a testamentary to the property of any Hindu. Buddhists, Sikh or Jains, nor shall they apply to any will made before die 1st day of January 1856.

(2) Save as provided in sub-s.(i) or by any other law for the time being in force the provisions or this part shall constitute die law of India applicable to all cases of testamentary succession.

Section 118 if enforced goes against the intention of the testator. If that is so the very exercise of writing the will is meaningless. Section 118 thus prevents die purpose of writing die will of die testator from being carried out.

Since Section 118 is not applicable to Hindus, Muslims, etc. It is a discrimination against Christians and so is discriminatory and violative of Art.14 of the Constitution of India. For Hindus, Muslims, etc. there is no such restriction for charitable bequests.

Since Section 118 is inconsistent with Art.14 and 15(1) of the Constitution of India it is also violative of Art.13(1) of the Constitution of India.

Section 118 in effect amounts to discrimination only on the ground of religion.

Section 118 violatives Art.25(1) of the Constitution of India in so far as only because one is a Christian he has to face the consequences of Section 118.

As per Section 118 bequests to religious or charitable uses will get legal validity only if die will is executed not less than twelve months before die testator's death.

The above period of not less than twelve months prescribed by Section 118 after the execution of the will and before the death of the testator is unreasonable, arbitrary and discriminatory without application of mind, unfair, and clearly violative of Art.14 of the Constitution of India.

Human beings have no control at all over their life span. Even very healthy and active persons die any moment due to various reasons unpredictable. So prescribing a period of one year after the execution of the will and before the death of the testator is unreasonable and arbitrary.

Section 118 further says that the will so executed has to be deposited within 6 months from its execution in some place provided by law for the safe custody of the wills of living persons.

The above time limit of within 6 months is also unreasonable and violative of Art.14 of the Constitution.

The above condition to deposit in some place provided by law for safe custody to gel: legal validity for bequests to charity is also discriminatory, unreasonable and violative of Art.14 of the Constitution of India.

Section 118 applies to all the bequests to charities whether such bequest is a direct bequest or is a contingent bequest or is subject to a life interest.

Section 118 applies to all properties both immovable and movable.

As per Section 118 the following bequests are void if the testator is having a nephew and he makes a bequest by a will not executed and deposited as required by Section 118.

1.      For the relief of poor people.

2.      For the maintenance of sick soldiers.

3.      For the erection or support of a hospital

4.      For the education and preferment of orphans.

5.      For the support of scholars.

6.      For the erection or support of a school.

7.      For the building and repairs of a bridge

8.      For the making of roads.

9.      For the erection or support of a church.

10.     For the repairs of a church.

11.     For the benefits of ministers of religion.

12.     For the formation or support of a public garden.

The Succession Act gives no definition of "charity".

Under Section 3 of the Indian Succession Act the State Government has the power to exempt anyone from Section 118. The relevant portions of the above section is as given below.

"Section 3: Power of provincial Government to exempt any race, sect, or tribe in the province from operation of Act. (1) The (State Government) may by notification in the) (official gazette) either retrospectively from the 16th day of March 1865 or prospectively exempt from the operation of any of the following provisions of this Act, namely Ss.5 to 49,58 to 191, 212, 21 3 and 215 to 369 the members of any race, sect or tribe in the State or of any part of such race, sect or tribe to whom the (State Government) considers it impossible or inexpedient to apply such provisions or any of diem mentioned in the order.

xxx                               xxxx                             xxx

(3) Persons exempted under this section or exempted from die operation of any of the provisions of die Indian Succession Act, 1905 under S.332 of that Act are in this Act referred to as "exempted persons".

The procedure prescribed for getting legal validity for charitable bequests in Section 118 is unfair and unconstitutional.

The Supreme Court has said in 1994 (3) SCC 569 (Kartar Singh v. State of Punjab/ as follows:

"The procedure established by law must be in consonance with fundamental principles of fair justice. If procedure offends die fundamental fairness or established ethos or traditions or shocks die conscience of die court it is unconsciousness, unfair, unjust and unreasonable die same would be unconstitutional, Procedural law as well as substantive law must pass die test of Art Hand must be just and fair."

The Supreme Court has repeatedly held that in deciding whether there is a constitutional violation the intention of the law makers is immaterial and what matters is the effect of the law on the fundamental rights. If the law affects the fundamental rights adversely then irrespective of the intention, the law, is based and has to be struck down.

It was held in 1973 SC 106 (120) that however laudable or otherwise justifiable the object or purpose for differentiation it is not the object or purpose or the form but it is die effect, die impact, the results of the law that would determine the question of infringement of fundamental rights.

It was again held 1978 SC 597 (para.13 page 199) that the test for determining whether a statute infringes a fundamental right is the direct and inevitable effect of the statute on a particular fundamental right. The object of the law or the executive action is irrelevant.

Many have set apart a portion of their assets for charity in trie will. But so long as the above section is not struck down as unconstitutional or till the Kerala Government exempts Christians from this provision in many cases the amount set apart for charity will not go for charity.

Unconstitutional Walk-Out

(By T.P. Kelu Nambiar, B.A.M.L.)

We find news-papers reporting every day or every third day that the Opposition staged a walk-out from the Assembly for one reason or the other. This walk-out is certainly on exhortation by the Leader of the Opposition. Here, the Leader forgets the Constitutional oaths taken by him and his duties under the Constitution. On a survey of the matter, I am inclined to take the view that such walk-outs are unconstitutional. I should think that this topic is of tremendous validity in these days. Therefore I have decided to take it out of my casket of silence.

A member of the Legislative Assembly represents a particular territorial constituency as provided for in Article 170 of the Constitution of India. Let it be noted that a Member of the Legislative Assembly is not a representative of only the electors whose votes enabled him to succeed; once elected, he becomes the representative of the particular territorial constituency as such. Like that, when elections are held to all the territorial constituencies of the State, the members elected collectively represent the entire State.

When a person offers himself as a candidate for election to the Legislature of the State, he is bound to take a Constitutional oath/affirmation as provided for in the Third Schedule to the Constitution of India. The oath/affirmation is as follows:

"I,...............having been nominated as a candidate to fill a seat in the Legislative Assembly, do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to die Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

Before taking seat in the Legislative Assembly on his election, the elected Member has to take a Constitutional oath/affirmation. This is also provided for in the Third Schedule. The oath/affirmation is as follows:

"I,.........having been elected a member of the Legislative Assembly do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter." (underlining supplied).

The Constitution includes within the functions of the Legislature, the function of expressing the opinion of the people, the function of informing the people of what it does, the function of properly teaching the public as well as the functions of legislation and finance. Bagehot has spoken of the expressive function, the teaching function and the informing function of the House of Commons. Same are the functions of a Legislature of a State. The Legislature "is a sounding-board" of the State's grievances and opinions; legislators are expected to create without destroying; and, according to John Stuart Mill, who spoke of the functions of the House of Commons, it is an arena in which not only the general opinion of the nation, but that of every section of it can produce itself in full light and challenge discussion. The Members of the Legislature who do not hold ministerial office need the political will to do more than simply sit in or quit from the Legislature. The proper office of a representative Assembly, in the words of Mill, is to watch and control the Government; to compel a full exposition and justification of all of them which anyone considers questionable; to throw the light of publicity on its acts; to censure them if found condemnable; and, if the men who compose the Government abuse their trust or fulfill it in a manner which conflicts with the deliberate sense of die nation, to expel them from office. But, not to run away from the Legislature off and on. When the Opposition walks-out of the Assembly the political party/parties running the Government will not have to face any opposition; and several business would be taken up and completed in the absence of the Opposition, without any discussion and difficulty. That is facilitated by the intermittent out-door peregrinations of the Opposition. Nothing is gained by such exit; but many things are lost. No profit it derived; but huge loss is incurred. When the Legislative Assembly is in session, the duty of a Legislator is inside the Assembly, not out-side. True to his oath, he has to faithfully discharge the duty upon which he had entered, as a Member of the Legislative Assembly. He cannot run away from that duty, whatever be the subject of consideration, - be it pivotal or peripheral, major or marginal, profound or profane. Such act of running away is verily unconstitutional: and breach of the Constitutional oath. Running away from duty cannot be equated to registering a protest. As representatives of territorial constituencies, the Members of the Legislative Assembly owe duty to the people of the respective territories by representing them in the Assembly. This is a Constitutional duty.

Have the members of the Opposition ever considered the question as to whether their boycott of the Assembly is liked or disliked by the people who have facilitated their entry to the Assembly.

The above are some of my thoughts on an important constitutional aspect. In fact, this topic is fit to be made one for public discussion, because the public are the persons affected by the Legislators keeping away from the Legislative Assembly, thereby remaining on the wrong side of the Constitution.

I should even think that there should be a law enabling the people of the territorial constituency to call back their member who runs away from his duty to the people, and that, in violation of the Constitutional oath taken by him. When the Irish tenants joined together and declared that they had nothing to do with Captain Charles Boycott of Country Mayo in order to coerce him to lower rents in hard times, they would never have contemplated that future legislators in India would run away from their duties in the name of Captain Charles Boycott. Erskine May and Charles Boycott are verily strangers.