Open and Shut Case

(V.K. Babu Prakash, Munsiff, Attingal)

The scene was in Arsakion Court No.33 in down town Athens in Greece. The court house was a grey stone building that takes up the entire square block at University Street and Strada. It was on November 11th 1978. A murder trial was going on. It was the murder of Mr. George Salvas and the accused his wife Anastasia Salvas, age 33.

The defence lawyer was Nappoleon Chotas, one of the prominent criminal lawyers of the time. He was a thin, emaciated looking man with large sad eyes. He dressed badly and his physical appearance was such as which does not inspire confidence in him. But behind his baffled manner, was a brilliant trenchent mind.

On the other, Peter Demonides was the Prosecuting Attorney. He was known to be the predatory Hawk among the lawyers. He was fierce and never left any stones of his case unturned.

The fact of the case were simple: Anastasia Salvas was a beautiful young woman married to a wealthy man named George Salvas, who was 30 years her senior. Anastasia had been having an affair with their young chauffeur, Josef Pappas, and, according to witnesses, her husband had threatened to divorce her and write her out of his will. On the night of the murder, she had dismissed the servants and prepared dinner for her husband, George Salvas had been suffering from a cough and cold. During dinner, he had suffered a coughing spell. His wife had brought him his bottle of cough syrup. Salvas had taken one swallow and dropped dead. Medical Pathologist examined his visera and opined the cause as: Blood poisoning of Antimony.

Room No. 33 was crowded. Jury box was packed with 10 jurors. Ahead in the dias Chief Justice and two brother Judges faced the audience. Anastasia was seated at the defendant's table dressed in the simple black skirt and blouse. No jewellery, no make up. But she was stunningly beautiful.

The Prosecutor, Peter Demonides addressed the bench: "My Lords, in a murder trial, it takes up months after months. But I do not think this case would take that length of time. We will prove the motive, the opportunity and the means to carry out the cold blooded scheme by the accused".

Napoleon Chotas slowly rose to his feet. "My Lords, a poet once said that the eyes are the windows of the soul. I believe that is true. I want all of you to look into the eyes of the defendant. Your could not find a murder glare in it for sure".

Prosecutor examined a line of witnesses. First was the House keeper. She spoke about the relation of Anastasia and George Salvas as like a cat and dog. Always fought each other. And the fun of it was that always Anastasia physically attacked George, the husband. On the night of the murder, Anastasia sent away all the maids and took charge of the Kitchen to prepare dinner for George. Witness said, they meant to have a second Honeymoon.

Peter Demonides sat down with a triumphant smile. Napoleon Chotas stood up and murmered 'No cross for the defence'. Chief Justice made a curious stare at him. But Napoleon Chotas drooped his head down.

Next came, Josef Pappas the Chauffeur. He had admitted the affair with Anastasia and indeed they were planning to elope away. On him also, Napoleon Chotas did not lift his finger of cross-examination. Prosecutor was charging over the court every step.

Then came the Pathologist who said about that he found the trace of Antimony in the Visera of George Salvas. On him also, Napoleon Chotas made no cross examination. Next came a plant dealer. He was working in a nursery where Anastasia used to come for getting advice for the up keep of the plants in her garden. Witness said, he had sold some antimony to Anastasia to get rid of infestation in her plants. Witness admitted, it was a deadly poison like arsenic. To him Napoleon Chotas made no attempt of confrontation.

Then, the Prosecutor took out the bottle of cough syrup which was the court exhibit. He exalted that the cough syrup was mixed up with antimony and George Salvas swallowed a portion of it. He was dead like a doornel within minutes.

Napoleon Chotas hesitatingly stood up with a stagger and whispered "Prosecutor may make sure to the court that is this the bottle administered by the defendant on the victim". Peter Demonidas thought in mind what a fool this defence lawyer is and exalted to the jury with an emphasising tone, "Ladies and gentlemen and My Lords, this is the murder weapon used by this defendant upon poor George Salvas".....and noded his head at Napoleon without any smile on his face.

Trial is over. Peter Deminidas was flaring with confidence. He never felt that this case could be such an open and shut case. No cross examination on any witnesses: No objection to the murder means. A case of clean walkover. He sat down with the plea of maximum punishment for the accused.

Napoleon Chotas rose up. All the jurors and Judges were frowning upon him. What has he got to do with the case. He began his submission in a low voice. "Prosecution proved nothing in this case". Then a coughing spell suddenly interrupted him. He coughed and coughed again. Judges began to feel impatience. Napoleon slowly went near the dias and took out the murder weapon, the cough syrup filled with antimony. Napoleon unscrewed the bottle and poured the content in to his mouth. Jourors, Judges and all the audience looked at him with plate like eyes, mesmerized, spell bound.

Nothing happened. Napoleon levelled his throat. Cough subsided. He began to say in emphasising tone: "Prosecutor's case is a mockery of justice. George did not die at the hands of this woman".

Result was quite clear. A clean acquittal with a feather in the cap of Napoleon. Prosecutor walked out with a shame face. Napoleon in his old timid way..........

xxx                                    xxx                                    xxx

Tail Piece:

Napoleon Chotas did not play any tricks, or any manipulations like changing the murder object. His shrewed mind worked it out. Usually the judges and jurors left for their Chambers sharp at one O'clock every session. During the trial of the witness Napoleon watched the time on the wall clock. Just 12 past 55 he concluded his argument and swallowed the syrup bottle mixed with antimony. Soon when the clock struck one the Judges left for their chamber. Napoleon hurriedly went to his office within live minutes and there a team of doctors were waiting for him. Indeed he had swallowed the syrup mixed with poison. But antimony take ten to twenty minutes to work on in the blood. Within which the doctors emptied the stomach of Napoleon pumping out the poison. And Napoleon returned to the court for hearing the verdict hale and hearty. Fit as a fiddle. With a thum's up to the audience.

Redeeming & Revamping the Legal Profession

(By John Joseph, Advocate, Ernakulam)

1999 (1) KLT Part I carried a fervent call of a senior advocate of high esteem to redeem and revamp the legal profession. The reverent advocate who made the call is Shri. T.P. Kelu Nambiar "who sits on the commanding heights of the profession." With the highest concern and from the depth of his heart, Shri. T.P. Kelu Nambiar called upon every lawyer to give a robust response to his exhortation. It is not known how many responded to his call. Indeed, none was seen published and none in action was witnessed or experienced at the Bar. The call had evoked spontaneous response in me. But I kept my response in reserve waiting for response from others. Now that nobody else has come forward to respond hitherto, which according to me is the duty of every advocate, I made up my mind to pen mine.

Having spent more than four decades in the profession, Shri. Kelu Nambiar observes that time has brought a great transformation in the profession. The glory of the profession has been lost considerably. Nobility of the profession has gone down. According to him, the profession is caught in the throes of recession and retrogression. The profession has become anemic and has succumbed to palsy. There is grave crisis in the profession and it is perilously close to paralysis and bankruptcy. After observing thus, he calls upon every lawyer to do one's lot with urgency to repair the damage.

At the outset, it may be pointed out that Shri. Kelu Nambiar's exhortation is not the first of its kind. The feeling Shri. Nambiar has expressed existed among the leaders of the profession of all times. A like feeling was expressed by Sir Maurice Gawyer, the then Chief Justice of India (of the Federal Court) in 1945, perhaps, even before Shri. Nambiar enrolled as an advocate. The same finds place in the Forward to the second edition of Rao Bahadur K.V. Krishnaswami Aiyar's book on Professional Conduct and Advocacy. Everybody is aware about the call made by Shakespeare to kill the lawyers. The attempt to avoid such a trend requires to be pursued without any holiday. Solutions suitable to the times need to be developed and applied and the glory of the profession should somehow be restored. But the fact that this feeling is as old as the profession itself is no consolation.

Shri. Kelu Nambiar has himself enlisted some of the reasons which have led to the consequences sought to be avoided. They are:

i)     the legal profession is now used only as an accessory, not the ultimate,

ii)    the legal practice has become more of a trade than of a noble profession,

iii)   lawyers are converting themselves into a bundle of services that can be sold out, and

iv)   lawyers are defaulting on personal letters, without keeping character, going even for brief hunting.

Of course, this is not an exhaustive list. In his own words, it is only 'a catalogue of situations in the profession.'

What is needed by way of response is to express one's views on the reasons listed by Shri. Nambiar and to list other reasons, if any, and the solutions also. It is felt that Nos. (3) and (4) are the offshoots of No.2. Commercialisation has converted the profession more into a money chasing activity than a service. Success in the profession is measured by the money amassed by one and not by the quality of service rendered by one. This has induced craze for money even in otherwise successful lawyers. Consequently, every bit of the profession is looked at more as a commodity for sale than a service to render. Does it mean that everybody in the profession has become a money chaser? Not at all. Only a very miniscule minority has become so. The majority still practices in the conventional style without emptying the pocket of the client. If that is so, why has the profession lost its face and is looked at as a commercial activity? It is so because only those who mint money are considered successful. The members of the public see the profession through them who manipulate things in such a manner as to give an impression that only they are significant in the profession and others are insignificant.

This analysis prompts me to make certain suggestions which I feel may be used to ward off the present state of affairs. The majority who still practices the profession with values should take steps to present before the members of the public the real face of the profession. The contributions at different levels, made by the profession should be projected and published among laymen. Respectable practitioners should be given the appreciation they deserve and they should be projected as the true leaders of the profession. Shri. Nambiar has suggested that a prize should be instituted for advocacy in the name of Hortensius. Similar other measures also should be adopted in abundance so that the glorious and nobler face of the profession will be noticed by the members of the public in preference to the false images that are projected in self interest.

Apart from the attempt to marginalise the impact of commercialisation, several other steps also can be taken to achieve the purpose of glorifying the profession. A start may be given in the legal education. Two things are noticeable. Constant efforts are made with all seriousness to improve the curriculum. These efforts are rewarding. The students who take up the study of law today are far more capable and enterprising than the earlier generations. They are capable of adding substance to legal profession. But, they need to be properly guided and kept out of the clutches of commercialisation. Two steps may be suggested. Respectable advocates should be prepared to find out time to serve as part time lecturers in the law colleges. The orientation that can be provided by such lawyers to the students is really useful and important. Many of the present practicing advocates may vouch for this. As students, they are influenced by the part time lecturers who were the leading and the highly respected advocates of those times.

Since a few years, this practice has disappeared. Part time lecturers are drawn from the beginners in the profession. They may be good lecturers, no doubt. But they fail to provide orientation to the budding lawyers which will stay with them throughout life.

Another possible measure is to give orientation to the full time lecturers and professors. They should be enabled to charge the budding lawyers with the glory and nobility of the legal profession. The institutions of advocates should take up this responsibility of enabling the lecturers and professors.

Another area thirsty of transformation is that of the young lawyers. There are certain significant differences between the beginners of the present times and those of the past. In the past, most of those who joined the profession had some financial stability in the sense that at least the majority came from financially well-off families-mostly agricultural or trading. Exceptions are there, of course, and they prove the rule. Again, they were used to simple living and were not highly tempted by commercialisation. Of course, even among them, there are some who adorned extravagance and luxuries and they had chosen paths suitable to their life style. But, again, they were a minority. Majority was otherwise. Today, this has changed. There is great rush to the profession. Many of them do not have any financial backing and most of them are influenced by the commercial approach to life. To overcome the outcome of this tendency, the senior advocates who accept juniors should become more magnanimous. They should support the juniors financially, not for the name sake but substantially. Also, organised efforts to ward off the effect of commercialisation should be made.

Yet another step required to be taken to redeem the profession is to re-establish 'merit' and to sweep away 'mediocrity' that presently rules over the profession. Infiltration of political considerations in the matter of various kinds of appointments pertaining to profession is the chief reason for the upper hand to mediocrity over merit. Concrete steps are required to be taken. According to me, a war should be fought to bring about meritorious methods of appointment to various posts. It is worth the fight because this will have its repercussions not only in the legal profession but in every field and all walks of life which are corrupted by the mediocre politics.

The historical glory of the profession has been built up at the altar of the historical fights undertaken by the legal profession in common and by eminent lawyers individually for common causes. Leadership of every social move was, perhaps, the prerogative of the legal profession, in the sense that lawyers were providing leadership everywhere. This leadership role of the profession has been lost after independence of the country chiefly because the eminent lawyers confined their work only to courts and concentrated mainly to make money. Time has now come to fight a second freedom struggle and for lawyers it provides an opportunity to regain the lost glory of their profession. Lawyers are capable of providing eminent leadership to the people of the country now, of course, only if they are prepared to set apart at least a portion of their time for that purpose.

Value judgments pronounced by the Courts have also added to the glory of the legal profession. In losing the glory of the profession, the rarity of such judgment is one of the reasons. This is a matter that should enter the conscience of the Judges. The entire world is marching to a new era with the new millennium. The Judges can through value judgments provide guidance and leadership to the people, provided judgments are pronounced keeping in mind the changes that are taking place. The judiciary has played such a role throughout and that has contributed immensely to the glory of the profession. This is so because it is the lawyers who prepare the ground for the birth of such judgments.

To conclude, redeeming and revamping the legal profession warrant actions in all spheres beginning with legal education and reaching up to the stage of pronouncing judgments in cases. There is scope for improvement in every sphere only if lawyers conscious of the glory of the legal profession are ready to take over some responsibility. Great sacrifices are not required. Taking up small responsibilities setting apart a very minor portion of their time to carry out them is sufficient. In the past, great sacrifices were required because fight was against tyranny. Presently, the war required to be waged is against the evils or short comings in a democracy and that warrants only meaningful participation and not great sacrifice. This is a point that needs to be noticed by the lawyers of eminence. Without in any way losing the practice, eminent lawyers can provide the leadership warranted by the times and by that they can contribute to the task of regaining the glory of the profession and of redeeming and revamping it.

The Impact of American Judicial Review in India

(N. Haridas, District Judge, Alappuzha)

Judicial review in India is rather a post independence authority which shall become totally relevant only from the date of the Constitution. After independence, though it started slowly and moved cautiously, this institution in judicial pretence has grown very powerful in size and importance in a very short period. Judicial review is anew subject, being a new discipline to the Courts of free India as well as to the people, in negotiating the daily trial of law, but it remains a subject often for scholarly contest among legal academics and veterans also, concerning its expansiveness and new power pretentions. On the Constitutional plane, the subject gains added relevance because of the increasing applicability of this new court-philosophy in a political life, upholding the rule of law. As Justice Holmes said 'law is not logic but experience', and in the constitutional experience of courts in a democracy like India, there is no topic today as important as judicial review. For the Indian courts and the people, this institution has come as the child of the traditional power of law, which had been unassailable and irrevocable in the colonial days, but becoming acute and life-size only after independence.

2. When the Constitution of India has been adopted in January 1950, all on a sudden and quite abruptly, the locomotive of Indian jurisprudence - a colonial power - sector in absolute restraint, and possessing no sovereign authority has been pulled into a new direction and vitality to move with powers so vague as unlimited. The reason and the cause for this ever increasing power of courts is none other than the new authority in judicial review - a power claimed by constitutional courts for judicial superintendence of the action of the other two co-ordinate branches - the legislature and the executive. This adoption and incorporation of judicial review remains a formidable event in the history of law, bringing new dimension to court's power, the exercise of which affects and controls the power and territory of the other two branches. We were trained only in the colonial experience of British law for long, but even today the British law has no judicial review, in spite of the history that it was they who started to built and honour the power of courts and its decrees through the instrumentality of the interpretation, and it is they who solemnly swear by this power for carrying out this job in full independence. But in that traditional society, judicial review still is a strange subject, and even Dicey was critical of the fast growing power of American judicial review in the 19th century. So, when the Constitution gave Indian courts the power to adjudicate on the legality and correctness of the acts of the executive and the legislature, the courts were forced to do a job, about which for want of actual experience, they had no definite idea by precedents. The Courts were compelled to build a new discipline. We had insufficient or no experience at all on this new power during the dawn of freedom, and the traditional storehouse of legal tradition - the British Isles -provided no precedent for us. But it became inevitable that in this entirely new occupation, our courts had to be geared up, reeducated and trained, and during the last 45 years of constitutional process, which may be called as tumultous and stormy, we have built up a stock-pile of constitutional experience and legal philosophy that can even match or surpass the great democracies in the West. Once this power starts to move with full force, we are forced with another immediate duty also, which is fixing the limits of judicial review - a limit none can mark out with certainty while dealing with questions of political propriety, on the touchstone of law. But that uncertainty does not mean that this power sets no limits on itself. Any power without restraint leads to excess and power abuse, and the question is whether courts also are prone to such mistakes and mishaps. We can see that there had been wrong and excessive power exercises by courts also in this respect, but there were also contrary occasions when there were sudden withdrawals and abdications of court authority, when it was most necessary. Power persuasions often lead to dangerous territory - a place very dangerous to enter but still more dangerous to withdraw, often.

3. Judicial review, which according to law's historian was an unknown power to courts, came for sudden view for the first time in the Unites States, and this advent marked the beginning of a new era in the court executive, court-legislature 'confrontation' (the word 'confrontation' is a misnomer). India enjoins this power in the Constitution as a definite, declared authority vested with the Courts, but the nature of the authority which had to be exercised has been so explosive and cataclysmic on certain situations that this power is bound to remain loudly controversial. Such controversies will certainly rock the Indian legal scene with its violent upheavals, turns and tumults, but as the power is so massive and intimidating according to political jargon, such occasions must be usual also. The tumult of a confrontation can be a churning process looking so dismal and anxious in the beginning, but that alone can be result-producing in the end. Often it is true that this review power sits in judgment not only of legal questions, but political values also. The age old notion that the court is merely the interpreter of municipal laws has to come to an end after the Constitution of the republic came into force, and under the same Constitution, the court is fast transforming itself into a 'powerhouse' producing and even declaring the first principles of free government - a move euphemised as legal interpretivism. But in the Constitutional life of a free democracy, this far-reaching Court power becomes so sensational that it can be the salient for court-politician conflicts, invariably leading to ideological as well as power conflicts also. The age of judicial review in India is modern, and its experience very short, but its very comprehensive hold on all areas of lawful human-conduct is rated as thorough, even if its cautious inclinations do want to speak otherwise.

4. India did not invent judicial review but only adopted it. The matrix of this power is the United States Supreme Court. This conclusion also is challenged often by those who say that though Rule of Law as such is not so powerful as judicial review, it is the womb wherein the foetus of this giant is engendered. The historian will contend that it was Edward Coke who challenged the King of England and therefore, it is he who ought to be the father of judicial review. Also there are many others who contended that even before Chief Justice Marshall, there are many U.S. Judges who have attempted judicial review and John Marshall had been given the credit quite wrongly. But even after a long debate, Marshall has again been placed atop the pedestal.

5. Before going into the Indian experience, the starting point of discussion may be how to define this power which often changes its character, and manifests its expansionist and high-flown tendencies on occasions of exercise. In the American history of judicial review, which is the trend setter and 'precedent-setter' for all countries owning up this power, this is a constitutional leviation on legal and political issues, both substantive as well as procedural. When this power is exactly sitting in interpretive judgment of existing law, as interpretation has traditionally been understood by the legal society right from Roman times, critics call this power illegitimate and unauthorised. But, that challenge alone does not make judicial review wrong-footed, making it ineligible for its latest role. The American jurists, who enthusely witness the flag-march of judicial review, say that this power cannot be limited to the power of interpretation of municipal laws, and this is as substantive as to be rightful and legitimate to examine the motive, propriety and legitimacy of political values, which necessarily change into constitutional values later on. Here the Tocquivillean expression that there is no political question which does not become a judicial question tomorrow, come helpful to define and explain the nature of the subject. In 1803, Marshall declared that it is "the province and duty of the judicial department to say what the law is", and Marbury v. Madison became the law's explorer guiding not only the judicial investigator but the adventurist also searching to arm himself with this power. This power had its ups and downs in the American scene, and there came a long silence since the Dred-Scott decision. The American Civil War, the Civil War Amendments and the post - Civil War thrusts of the Reconstruction controversy gave the court a new vigil, and energised this power also, but the exercise of the same had certainly not been activist as it ought to be after a Civil War. It is notorious that after F.D. Roosevelt became President in 1933, there was the antijudicial attempt to politicise the Supreme Court, or at least to ensure a majority for the New Deal policies of the President, who wanted the State to more meaningfully interfere in the nation's economic management. This the court will not allow, and the provoked President responded with the threat to pack the non-conformist court with the pro-president majority. Under the humiliating bogey of a nine-Judge bench having a much larger face-look packed with political appointees, the court buckled, and in order to escape the insolent addition, it suddenly changed course and reversed the judicial philosophy by ratifying many New Deal statutes. No doubt, on the retreat executed, the Court philosophy changed, and its prestige suffered a serious set-back, and the people supporting judicial review condemned this change of course by court as opportunist and capitulative. But it was in 1953 in the Steel Seizure case that some lost ground has been retrieved by the Court through a new assertion, declaring illegal the seizure of some Steel Mills by President Truman, as part of Korean War effort. That was only a restart, and more momentous things are to come in 1954 for American judicial review, when the Warren Court delivered its historic verdict - Brown v. Board of Education. In size and power, Brown was really a judicial smasher, rather like a judicial coup d'tat. Many traditionalists went on to believe that the apocalypse was at hand. This decision set off a political storm, criticising, challenging and condemning the Court for naked power encroachment. This was condemned on the ground that the court is reaching out its hands too aggressively towards anything it can lay hand on, and the days of Constitutional terror are at hand. Brown was making history by breaking new ground, and was introducing court authority into an area, which till then indisputably belonged to the domain of the executive and the legislature. It was a domain which these branches feared to tread for long also. It is said that Chief Justice Earl Warren had delayed that "judgment-delivery' by many months, in order to obtain unanimity, and when the court spoke with the united voice, that became its basic strength. But in order to appease the White society's violent reaction, the court moved only in slow-motion in executing the order. But in spite of the cautions and danger-signals issued, there was no looking back for the court thereafter, and the power has gone upbeat, and a series of block-busters exploded in the Court room thereafter. The Court held in Gideon v. Wainright that all defendants in criminal prosecutions are entitled to be defended by counsel at State expense, if he needs such aid because of want of means. In Nixon v. United States, the Supreme Court ruled that the President of the United States has to release all tapes held in the high security racks in the White House for judicial scrutiny, and thus all notions of national security and presidential privilege were blown to bits. In the later case, Roe v. Wade (1973), the Supreme Court ruled that for a woman, the right to have an abortion is part of her right to privacy, and so a right in substantive due process. Even today the Roe decision is a raging controversy for jurists and politicians alike. The Court was giving the impression that any area held reserved for the executive and the legislature, are no more their exclusive territory. Against formulating the new power, which till then remained the exclusive preserve of the other two independent branches owning sovereign power, there will be scathing criticisms and accusations, and this expanding judicial pretension shall lead to tire view that the liberalist majority in the Supreme Court is trespassing into the protected areas of the executive and the Congress, and therefore, they wanted this power declared illegal by a constitutional amendment, or by review by the same court. A constitutional amendment, in this respect will not be politically appropriate, as such step can be viewed as attempt to undermine the judicial authority to properly restrain the abuse of power by the other two branches. Therefore, it was felt that the more desirable course for the President to do was to change the composition of the Supreme Court by selective appointment of more and more conservative or non-liberal judges in future. Nixon made a start in the way by appointing two conservative judges, but then he saw that the court pliilosophy is not changing so easily. Warren Burger - the Nixon appointed Chief Justice, was considered not sufficiently conservative, and Rehnquist was the only true conservative to preserve the originalist argument. Tire clear change into conservatism came in the Reagan years when Rehnquist was nominated Chief Justice from the position of puisne judge. Under the Bush Presidency, the Court composition became definitely conservative, and the opponents of the liberal court heaved a sigh of relief that at last the court was returning to its original jurisdiction. It is true that the composition of the Court could be changed, but then the question is how can settled law be changed, and on what tenable reason. The tilt towards orthodoxy may be a reality but every settled legal right and principle cannot be reinterpreted into a new but different meaning in order to cancel the old meaning. Through a historic verdict, the people are getting a new right or losing an old right, and as the situation settles down, this judgmade law becomes not so easily changeable, as the court philosophy cannot change according to the latest opinion polls. One of the substantive merits of law is its certainty and permanency, and so any law-change at short interval will be a dangerous move. Then it does not follow that all previous decisions such as Brown, Gideon. Roe. Miranda etc., are going to be undone by the new majority, in haste. Even Rehnquist had to confess that a court decision which stood for a considerable time is difficult to be reviewed and revised, as it will unsettle the law unnecessarily. Because of vital Constitutional consequences, a sudden change of view in law causes grave political fall out and uncertainties. The notorious Bork hearings in the US Senate reveal that the bogey of an arch conservative and revisionist Bork, projected by his foes as a walking constitutional amendment, had been a baseless nightmare, as Bork himself declared in the Caucus Room that the long-held judicial decisions are to be honoured, as any review will be affecting the confidence of the people in the Court's power to safeguard the stability and permanency of law. How can the Brown decision - the most enterprising judicial assault of the century, be altered after 40 years of acceptance, practice and societal incorporation? On the applicability and details of the Brown decision, the future legal explanations also may change, but the court-proclaimed constitutional rule that there cannot be separate White and Black schools in future cannot be revoked in a new interpretive putsch, or even by a new law.

6. This brief reference to the American law is made specifically to refer to the history and rise of the power of judicial review, whose matrix remains the United States Supreme Court. Americans started this move in the logical motion, which in course of time became more emphatic, regular and activist. The apprehensions, fear and hesitations that plagued Marshall before embarking on the new drive to acquire this power for the court had been cumbersome and compiled. Being uncertain and vague, it had few promoters, supporters and proponents in the beginning. In order to avoid a confrontation with the executive and the eventual sudden death of this new power, Marshall had to start with a declaration which went in favour of the President. He played a diplomat also in the beginning in political logic, and even after reaching the firm ground he issued many court fiats in favour of strengthening the Federal Government, about the merit of which every American patriot must remain happy through history. The Marshall declarations had regularly been favourable to the reinforcing of the federal power, and it became confrontationist only rerely. The grand patricians of American revolution and Constitution - Jefferson and Madison were alive to witness the momentous march of Marshall with his judicial revolution, and Jefferson called it illegitimate. But this did not stop Marshall, who developed this power in a clear tactical move, which in a future situation will he saved of challenges because of his laying the undeniable basic precedent in the beginning, declaring that the court possess this authority so definitely. There are many historians who record that the growth of the American Federal power, the integration of the Union and the rise of American Presidency as the most powerful office on earth can be traced back to some decisions of Marshall and he shall remain the great patriot also. His judicial statecraft had been so special to history. The American case reach this stage only after a two century long creation, consolidation, reorientation and procedural adjustment, and it is so formidable today. It is this very powerful 'end -product' of American judicial review which became the starting point of Indian judicial review in 1950. Till independence, it was the basic principles of British rule of law which provided the guidelines for Indian courts to move ahead, but with the establishment of the republic and the conferment of this constitutional authority, (more recently qualified as sovereign power) the Indian courts have had to undertake and undergo a sudden project-conversion, as a full scale engine of review power. This new authority, not being granted to or acquired by the British courts at any point of time, the example for India to take up a thorough search into the scheme and history, shall be the United States only. What was invented by Marshall in an atmosphere of scepticism, suspicion and judicial diffidence has become a written directive in our constitution, authorising our constitutional courts to declare the law and to review the authority of the other two branches, and also tell what is fundamental law and ordinarily law, and the difference between the two. It is necessary to remember that for American judicial review also, the basic premises were supplied by British law and the Blackstone Commentaries.

7. The American example is always tested with English rule of law, and it is history that American judicial review also is guided by the principles of English rule of law, as then obtaining, though this new power appears a thoroughly different progeny. How the modest pretensions of English rule of law could co-exist with the activist, expansionist and aggressive power of modern judicial review, will be a vaulting issue for contention, and that question itself will need a very long space to explain. The makers of the American Constitution - especially its architect Madison, poured over hundreds of British and Continental legal treatises to write down the draft of this 17 page document. Revolutionary America was fascinated by the Commentaries of Black-stone and the anti-regal references of Judge Edward Coke. But they were more fascinated by Montesqueau and the French revolutionary Rousseau - and the draftsmen went on to improve on the British tradition they had in hand. The French Revolution was yet to take place, but the forces of the impending revolution were very much in sight, and this the Constitution makers did not miss. They planned for a total republic - a new experiment after the Greek City States. If the judiciary does not supervise the process, then who will guarantee the Bill of Rights was the Marshall question.

8. India, as a republic, is the largest democracy on earth with more than 900 million free people inhabiting a large area of global surface. Our democracy has had an enlightened start, and perhaps the only wrong occasion for our system had been the Emergency days of 1975-77, when world democracies denied to India the status of a free State. But the tenure of that Constitutional breakdown had been short, and again the free institutions were placed on the fast-track of restoration, and quite unusually India regained her status as a free republic. Rule of law, as a subordinate State department, can exist even in non-democracies also, but judicial review can exist as an independent power only in a constitutional democracy. This power eventually has come to mean the authority given to courts to exercise sovereign power, as being authorised to supervise the other two branches, to which the Courts were hitherto subordinate. When India proclaimed a republic, the Federal Court was converted into the Supreme Court of free India, and it was the same judges who had to propound the first principles of the constitutionalism of the new republic. After 45 years, the republic stands with a credit sometimes more honourable than many traditional democracies. The Commonwealth of Nations are not all democracies now, though the transfers of power were made mostly to people's leaders. Many African and Asian nations immediately abandoned free government. Myanmar (Burma) changed into a military State after a short spell. Pakistan was mostly having military Governments, and occasional democratic revivals, but now it is speeding up its democratic process. Certainly, the courts in Pakistan, especially the Pakistan Supreme Court, while exercising review power has been more assertive on recent occasions, and when the dissolved Pakistan National Assembly was restored by the Court, it was supplying an unusual dimension to judicial review, which even the Indian or American Supreme Courts did not endeavour. Africa had elected governments in Kenya, Nigeria, Zaire, Liberia etc., but we know that these governments ended up as martial law administrations or dictatorships. In those situations, the rule of law and judical review has no role to play as the defender of people's rights.

9. India remains a poor economy by world standards. It has a high illiteracy rate also. But the Indian commitment to democracy, looks as though it has come of age, claiming a place among the established democracies on earth. A comparative look into the different non-judicial areas may also be necessary for commenting on the new power of judicial review. In that search, it may also be necessary to know what is the top-soil serving the growth of this power best. Even after many centuries of democratic growth, the English people continue to refuse to give his power to their courts, and do not consider this power necessary to protect their Bill of Rights, but with no written guarantee ever made anywhere like a constitutional guarantee. For the British people, their Constitution is not in writing, but it is part of their way of life.

10. There is no doubt that the Indian Constitution has been planned to have a judiciary with plenary powers in judicial review. When any power is unlimited and undefined, it is prone to excess and abuse, and Indian Judicial Review, also come for adverse comments on different occasions that it is exceeding boundaries. Exercise of power cannot be unabusive and non-excessive on all occasions, and that is a sin attached to power always. The Court also cannot have a different discipline in this respect when no restraints are placed in its way. But judicial restraint and moderation, and judicial courage and impartially are some of the eminent characteristics of judicial review, and in preserving those qualities, in high discipline, except during the 1975-77 Emergency, the conduct and reaction of the other two brandies towards courts had been consistently and consciously loyal and co-operative, when compared to many new democracies in Asia and Africa. Court decrees have been obeyed, and there was no basic challenge to court verdicts generally, even on occasions when there could have been a Constitutional crisis. May be there were sometimes dilly-dallying in implementing court orders, but there had never been any direct affront to the authority of courts. An exception to this general behaviour of compliance had been the stand taken by certain legislatures who claim the floor of the House as their sovereign territory. This led to a reference to the Supreme Court, and the verdict recognises the power of courts to examine even a motion on House contempt. Dr. Bonham's case, in British history is no more good law in India. The Manipur Speaker's case is a firm precedent in the assertion of this power, when the Speaker, under court process, was sub-poenaed to the bar of the apex Court. The executive also must be diligent to follow the rule that any attempt to defy the directions of courts, will only determine the law's power in supervision. But, being a new authority, and an essential power to regulate and balance the State machine through checks and balances, these cases must give rise to contentions, conflicts and counter changes, as usually thrown against a manipulative power. But, in spite of these ills and defaults, judicial review appears to have sunk deep roots in India, and this is because we have shown an abiding concern and commitment to evolve a new and erudite tradition on people's rights, very much in conformity with the regulations of Dicey- and his rule of law, but more comprehensive in substance. Judicial Review is part of the Sovereign Power of the State, and it is quite natural that this power often embarks on discussing and assessing political values and the first principles of free government.

Environmental Law, Dharma and

Judicial Silence in a 'Secular' Democracy

(Jorg G. Weber (M.A. Soas, London)

Modern Indian environmental jurisprudence represents today a unique and powerful part of the country's highly praised social action litigation. Lawyers and academics are not getting tired of proclaiming the achievements of a new public law rationale which has drifted away from British criminal law strategies and private property principles towards a new legal order focusing on public interest. These same people, however, find difficult to admit that what they vaguely describe as "native instinct" (Dhavan 1992), or traditional factors, are in reality nothing else than the continuing influence of dharmic concepts on society in general, and on the process of Indian law-making in particular.

Since Krishna Iyer's observation, nearly two decades ago, that "dharma is a polemical issue on which judicial silence is the golden rule" (Dhavan 1977, P. 520) the situation has remained basically unchanged. In India, it remains politically incorrect to understand ancient Hindu concepts as a driving force in certain areas of modern litigation. The careful observer may now ask: what do modern environmental laws in India have in common with an antique cultural concept?

Within the last two decades, environmental jurisprudence in India has been developing in a direction significantly different from that of other law systems. While most Western countries continue to rely on a regulatory law paradigm dominated by proprietary interest and economic rationalisation, the modern Indian judiciary relegates individualism, materialism and the desire to dominate nature in a subordinate place. Two factors link to play central role in this multi-level approach to protecting the natural environment while improving the quality of life.

Environmental justice is a sub-category within secular, modern Indian constitutional law and has become a relevant section of public interest litigation. It builts on a new public law rationale which intentionally emphasises the interplay between an individual's duty towards the public at large and the duty of a public authority towards society. This new public law regime reactivates and redefines concepts of nature and applies these along the lines of public interest litigation.

Until recently the role of cultural and spiritual heritage in environmental protection was ignored or actually rejected by official bodies in India. O.P. Dwivedi makes this point when he describes secular India as having a "fear that bringing religion into the environmental movement will threaten objectivity, scientific investigation, professionalism or democratic values...." (Dwivedi, 1993). Nevertheless, recent environmental cases indicate this is not strictly the case.

In the judgment of one of the famous M.C. Mehta cases, the Supreme Court observes:

"... .Our ancestors had known that nature was not subduable and, therefore had made it an obligation for man to surrender to nature and live in tune with it (M.C. Mehta 1992/1, SCC 358)

Are these merely hollow words or are judges timidly looking to ancient Indian concepts of nature and universal order for authority, without mentioning the sources?

A closer look at the vast Sanskrit literature available on the subject makes clear what the Supreme Court Judges meant by living "in tune" with nature. Sanskrit scriptures emphasize repeatedly the intimate relation between human beings and objects of nature. We often find mankind calling-prithvi (earth) as mata (mother),[1]in this way indicating that they are themselves relative to or part of the nature rather than a species which has been given special concession or mastery over other natural elements. According to ancient Sanskrit sources, one form of life promites the welfare of another form of life without consuming it or damaging it. The human is seen as a part of a wider cosmic order, which attracts irreversible responsibility on the individual. Dwivedi, a well known modern Indian ecologist, comes to the conclusion that

"...ancient, Indian environmental ethics shows that man was instructed to maintain harmony with nature and to show reverence for the presence of divinity in nature". (Dwivedi 1987, P. 89)

The above mentioned quotation from the M.C. Mehta judgment indicates very nicely that modern lawyers are well aware of traditional, philosophical ideologies concerning man's role on earth, and further, that they are willing to apply these ideas to modern environmental litigation. However, it remains a sacrilege to express these views directly and openly, and so the reference provided in M.C. Mehta represents a rare example of judicial frankness.

It seems that there are no limits to Indian Judges' inventive genius in order to avoid putative delicate references to ancient Indian philosophical literature.

In Shri. Sachidanand Pandey (AIR 1987 SC 1109), the well known Supreme Court Justice Chinnappa Reddy quoted extensively the famous words of a North American Indian Chief, in order to demonstrate the holistic ideology which Indian courts adopted to determine man's place in the macrocosmic order of natural environment. The similarities between the North American Indian leader's lecture about the limits of human control over the world, and ancient South Asian models developed around the same matters are striking. But why, then, do lawyers in India feel compelled to be evasive and borrow the philosophical framework from an ethnic group living more than twelve thousand miles away, when their own cultural heritage could provide them with sufficient ideological background?

It is not often acknowledged that Indian courts actually apply modern law within the guidelines of an ancient body of thought. A closer examination to environmental judgments makes this quite obvious.

In this fast growing chapter of social action litigation, judges have adopted the tough and uncompromising point of view that the preservation of natural resources and protection of the environment plays a more important role than commercial interests or economic development. The Indian judiciary does not even shy away from colliding with the business interests of factory owners and closing their production centers down, if necessary, a prospect that would horrify many western industry bosses. By putting the constitutional right to life higher than the right to work, Indian Judges take a position inconceivable in a similar discussion in the European political and economical context.

In Madhavi v. Thilakan (Crl. LJ 1989, 499) the learned Judge held: "To say that a workshop or factory should not be closed down, as it provides livelihood to some persons unmindful of the consequences of others, would be to say the untenable".

A number of other cases similarly indicate that Indian Judges continue to reinforce traditional values about the relationship of nature and man in modern environmental jurisprudence, over business and market-oriented interests. Whether the Supreme Court orders to close a polluting factory (M.C. Mehta III, 1987 SCC 463) or a High Court prohibits the Government from constructing houses on a piece of land previously allocated for a recreational park (T. Damodhar AIR 1987 SCC 674); the tendency away from the dictates of a common law doctrine of absolute ownership and unlimited right of disposal of private spaces, and towards an understanding of nature as a part of an universal order which forces the individual to be concerned about his environment can be clearly inferred. The result of this is that in environmental litigation, Indian Judges do not rely solely on a western concept of external sanctions, but instead focus in a persuasive and pedagogic manner on the educational aspect of the law which aims at reinforcing environmental consciousness. In this way the Courts include the individual in a system where every single person has a duty to protect natural resources and to care consciously about the well-being of his environment. In D.D. Vyas (AIR 1993 All. 57) the Allahabad High Court held:

"The last clause (j) of Art.51-A of the Constitution further mandates that it shall be the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement".

This interesting interpretation of Art.51-A(j) of the Indian Constitution makes it clear that judges do not see society as a mass of ignorant and irresponsible people who have to be kept within reasonable limits by the means of strict control and punishment by the State. Rather, they are individuals who can very well contribute to the well being of the community as a whole. Besides that, Courts appear to recognise that justice begins with the approval of one's own conscience and not in front of a bench.

But when judges appeal to the "duty of the citizens not only to protect but also to improve the environment" (Kinki Devi AIR 1988 HP 4) in environmental litigation, do they just "talk big" to please western readers of Indian law reports and to demonstrate their eloquence? Or are western observers simply not wanting to admit what Indian lawyers are similarly wary speaking out about openly, namely that these recurring references to individual conscience and duty are nothing less than references to the welt known concept of dharma?

A closer look at the secondary literature shows the insecurity prevalent even among Indologists when it comes to defining dharma as a complex ordering network in a historical context. Both dharma and sometimes artha. have been translated as "law" as if it can be represented as a European-style system of law consisting of written rules of conduct known to everybody and being enforced by the State. Rather than in this way, sometimes it is seen as a more or less abstract, separate term in the respective textual context. But dharma is neither the Sanskrit word for law nor does any textual statement about dharma have absolute value. Dharma as a concept (as well as for example vyavahara) includes "law", but its meaning goes far beyond just that. As an established component of the Hindu world view it is a concept with meaning for everybody which has for its all-embracing characteristics to be illuminated by the light of a conceptional general framework. Menski describes dharma as

"comprising all levels of existence, from the macrocosmic to the microcosmic. But thus placing the Hindu individual into a complex network of cosmic interrelationships, any human activity, including inaction becomes perceived as to have potentially wide reaching consequences". (Menski, 1996).

The continuous overemphasis on passages like Manusmrti 2.6 (see Lingat 1973) makes clear why Indologists and lawyers have lingering problems seeing dharma as relevant for modern Indian environmental litigation. Is it really realistic to assume that an individual consults vedic texts before activating his conscience? It is perhaps more logical to turn the sequence 'sruti-smrti-sadacara-atmanastusti upside down and to ask for the sources of dharma beginning with atmanastusti (See Menski 1996).

It is really a distortion of reality to portray ancient Indian texts as having more authority and relevance for the average Hindu than the examination of one's conscience. Observation of daily life indicates that still today atmanastusti remains primary, leaving relatively little room for "book law".

To return to Indian environmental cases and judges' appeal to the duty of citizen to protect and improve the environment, it seems to be more than coincidental that modern jurisdiction shows that a genuine effort to convince the individual of its important role as upholder of law. One might see this simply as a kind of civic education, but a closer look shows that judges try in reality to reestablish principles of dharmic world view at grass root level. Indian courts seem to have recognised, much faster than most Indologists, that the osmosis between understanding law as part of an all-embracing order beginning with atmanastusti and its application in a modern jurisdiction at the same time relying on indigenous concepts of nature as a part of cosmic interrelationships, might on the long run be much more successful than Western legal systems' philosoplhy of positive law.

Why then this timid paraphrasing about the complete change in India's jurisprudential perspective, limiting it to a mere product of secular, modern society, when reality clearly shows that religion remains a dominant factor in the whole continent, influencing domestic affairs, as well as big politics? Either Indologists do not want to hear that the examination of individual conscience is relevant to the genesis of Indian concepts of law, or lawyers and academics know how to keep quiet. The careful observer should, however, prick up his ears, when a prominent legal expert points out that:

"the question concerning environmental problems is not how best to punish someone, but how to manage the society in the best way so that maximal development is attained with nil or minimal environmental underdevelopment........" (Singh 1986)

Here Singh argues resolutions in environmental law should not be sought by means of polarising the state as regulator and the citizen as users against each other. By showing the ruler or State, as part of a comprehensive network of mutual interdependences he gives us another interesting indication for the dharmic orientation of modern India environmental litigation. When dharma is described as an all embracing system of cosmic interrelationships, which has meaning for everybody, then the governing body must logically be included in it.

A look at the Sanskrit scriptures makes it clear that the raja (king) in ancient India occupied an elevated position in society, but actually had no mechanisms to enforce his own law. His role was to act as a kind of supervisor or guardian of what his people perceived to their law. The ideal ruler, as described for instance in the Ramayana, was primarily, like everybody else, subjected to atmanastusti.[2]

Out of this experience, he was then in a position to enable his people to follow their own individual dharma and to remain thereby within the ambit of dharma in its universal conception. In this way the raja acted as a, good example of model behavior (Sadacara). as well as "public agent" (Menski 1996). He also might intervene by means of harash punishment, when self control proves ineffective.

Modern Indian Courts appear to be taking up the notion of the ruler as supervisor and upholder of dharma. In Rural Litigation (AIR 1988 SC 2187) the Judges held:

"The Court expects the Union of India to balance these two aspects and place on record its stand not as a party to the litigation but as a protector of the environment in discharge of its statutory and social obligation for the purpose of consideration of the court by way of assisting the court in disposing the manner in issue".

In this case, the Supreme Court very clearly extended its persuasive and pedagogic ambitions on to the State Government of Uttar Pradesh, a public authority, reminding it about its duties towards society. Judiciary in this context not only controls state power, as it does in Western countries, but goes further to point out that the legislature should realise its role as a model as integral part of a balanced society.

In environmental litigation - but not solely in this area - Indian Judges take the initiative and use their power to remind the State of its dharma and to not limit themselves to executive functions. This concern is seen as a priority when the Bombay High Court notes that

"........Such directions.........are issued so as to compel the statutory bodies including the state to stand by the citizens and do their public laws duty so that the purposes of public expressly enacted are not frustrated...." (Kinkri Devi, AIR 1986 Bom.136) "

To sum up, it can be said that judicial activism in Indian environmental litigation is not only an attempt to control damages caused by economic growth and industrialization, but to reawake a sort of society which places the individual as well as public authorities inside a balanced universal network of dependencies and duties.

Most observers overlook the fact that awareness of ancient concepts of regulating society and indigenous models for protecting nature in a wider sense have been put to productive use in the development of a modern regime of environmental regulation in India. On the one head, Indologists demonstrate once again that they have not learned anything since Buhler's days and are still more interested in Sanskrit text-oriented hairsplitting than in recognising social realities and the role of the individual in ancient Indian "law systems." On the other hand, India's self-declared Western orientated elite conceals the impact of indigenous alternatives on environmental jurisprudence, because they seem to be afraid of dharma oriented society where also the establishment would have to subordinate business and consumer interests to public welfare.

While Indologists' mis- and over interpretations of Sanskrit texts can be regarded as a mere unpleasant part of the discussion, the opposition of sectors of the Indian upper middle class to the power of courts in public interest litigation, and therefore, also in environmental cases, should be reason enough to raise alarm.

The present Government's move to reign in PIL runs not just counter to so called democratic precepts, but could deprive a major part of India's vast population of its right to claim a clean environment.

Once can only hope that the path adopted by the Supreme Court will continue to be taken in the future. To reply on ancient concepts about nature and society in modern Indian environmental jurisprudence does not mean to be reactionary or misogynist, but to avoid errors that were made during the "developing process" of Western countries. Indian courts have realised that the reawakening of self control as a first instance mechanism at all levels of the society could prevent mankind of destroying his habitat of selfish interests.

___________________________________________________________________

Foot Notes:

1. See Mahabharata, Moksadharmaparva 184,29.

2. See Kinsley 1982, p.27.

BIBLIOGRAPHY

Abraham, C.M. (1991): "The Indian Judiciary and the development of environmental law". In: Vol. II No.1 South Asia Research, pp 61-70.

Abraham, CM. (1995): Environmental justice in India. London: SOAS, PhD Thesis.

Battacharya, D.K. (1990): Ecology and social formation in ancient history. Calcutta: K.P. Bagchi.

Calicot, J. Baird (1991): Nature in Asian traditions Of thought: Essays in environmental philosophy. New Delhi.

Chiba, Masaji (1986): Asian indigenous law in interaction with received law. London, KPI.

Dhavan, Rajeev (1977): The Supreme Court of India: a socio legal critique of its juristic exploration. Bombay.

Dhavan, Rajeev (1992): "Dharmasastra and modern Indian Society: a preliminary exploration" In: Vol.34, Journal of the Indian Law Institute.

Diwan, Paras (ed.) (1987): Environmental protection: Problems, policy, administration, law. New Delhi: Deep & Deep.

Dwivedi, O.P. (1993): "Global Dharma to the environment" In: Vol.39, The Indian Journal of Public Administration, p.566-576.

Jha, V.N. (ed.) (1991): Proceedings of the National Seminar or Environmental Awareness Reflected in Sanskrit Literature. Poona.

Kinsley, David R. (1982): Hinduism: A cultural perspective. New Jersey.

Lingat, Robert (1973): The classical law of India. Berkeley University Press.

Singh, Chhatrapati (1986): Law from anarchy to Utopia. New Delhi.

Singh, Chhatrapati (1990): "Dharmasastra & contemporary jurisprudence" In: Journal of the Indian Law Justice, pp 179-188.

Purohit S.H. (1994): Ancient Indian Legal Philosophy. New Delhi: Deep & Deep.

Ignorance of Law Does not Excuse, But Suppression Does - A Comment on 1995 (2) KLT 443

(V. Philip Mathews, Advocate, High Court of Kerala)

The Net of Law

                                                                                                     - James Jefferey Roche

              "The net of law is spread so wide

              No sinner from its sweep may hide

              Its meshes are so fine and strong

              They take in every child of wrong

              O Wondrous Web of mystery!

              Big fish alone escape from thee!"

Ignorance of law is not an excuse howsoever poor and illiterate you are, but suppression of law may excuse, if you are rich and literate. Even a most salutory provision in the Criminal Procedure Code Section 357(3) - intended to provide succour to the victims can provide succour to the accused and permit him to walk happily out of the bars. A few coins in hand thus proves better then stray principles behind the bush. The decision reported in 1995 (2) KLT 443 where the Hon'ble High Court modified the sentence of the accused convicted u/Ss.307 and 447 IPC by levying a fine of Rs.1 lakh and invoking Section 357(3) of Cr. P.C. is against the clear provisions of law contained in Section 307 IPC and 320 and 482 of the Cr. P.C. Though the intention of the High Court is laudable, the net effect of it is difficult to be appreciated. It is respectfully submitted that the decision is a step backward in our criminal justice system.

"Section 357(3) Cr. P.C. is an important provision but courts have rarely invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgments of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of the accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition there to" - Harikishan & State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127. The Supreme Court has invoked this provision in many cases - Balraj v. State of U.P. (1994) 4 SCC 29, Dr. Jacob George v. State of Kerala (1994) 3 SCC 430, Harisingh v. Sukhbir Singh 1988 SCC (Cri.) 984, Sarwas Singh v. State of Punjab, AIR 1978 SC 1525 etc. In all the above cases the compensation awarded to -the victim was in addition to the punishment to the accused. They were not a device to reduce punishment or to compound the offence. However there are instances where Supreme Court has compounded non-compoundable offences. In Mahesh v. State, AIR 1988 SC 2111 the Supreme Court compounded an offence u/S.307 IPC. (See also (1991) 4 SCC 584). Some of the High Courts have resorted to Section 482 Cr. P.C. when Section 320 Cr. P.C. bars compounding. Thus in Thathapadi v. State, 1991 Cri. L.J. 749 the Andhra Pradesh High Court compounded an offence punishable u/S.489A IPC : "Keeping in view the larger interest of parties and to secure and of justice." This was followed in 1992 Cri. L.J. 273 (Raj.) and 1992 Cri. L.J. 2106 (Bom.).

Resort to inherent powers u/S.482 Cr. P.C. when S.320 or any other particular provision bars an act is contrary to law and achieving something by suppressing law. Section 482 Cr. P.C. is not to be invoked in respect of any matter covered by the specific provisions of Cr. P.C. and if its exercise would be inconsistent with any the specific provisions of the Code 1958 (SCR) 1226; AIR 1967 SC 286; AIR 1979 SC 87; AIR 1960 SC 866; AIR 1977 SC 1323.

It is respectfully submitted that the decision reported in 1995 (2) KLT 443 does not lay down the correct law. Section 307 IPC says  "...............shall be punished with imprisonment...............shall also be liable to fine................." 307 IPC is not compoundable u/s 320 Cr. P.C. 482 Cr. P.C. cannot be invoked to support the decision since there are cleat provisions of law. When I say this I am conscious of the fact that judges do and must legislate "but they could do so only interstitially, they are confined from molar to molecular Motions." - Southern Pacific Co. v. Jensen (1917) 244. US 205 at 222, Per Holmes, J. (Referred to in AIR 1995 A.P. 274 at 285). When the sovereigns of our souls allow suppression of law, soul of the nation fallens, flounders and nearly founders. Only an outright optimist or one gifted with self deception would believe that this ruling would not be misused (or even abused) in future. The decision is against all theories of punishment. It has no element of retribution, prevention, deterrence or reformation. The decision also create two classes of accused - those who can afford a heavy compensation/fine and those who cannot. Whereas the former is set free, the latter is put behind bars. This amounts to discrimination and .rating equals unequally. A judicial decision or order which violates Fundamental rights is void, even though it will be binding on the parties, so long as it is not set aside in appropriate proceedings - AIR 1974 SC 1471, AIR 1988 SC 1531. Though remedy under Article 32 is not available where the offending court is the Supreme Court itself, the court in exercise of its inherent jurisdiction would review and set aside a previous direction given by the court which offended against a fundamental right.

Now the Hon'ble High Court itself has come forward in Shibu v. State of Kerala, 1995 (2) KLT 912 to undo the wrong committed in Joshi v. Slate of Kerala, 1995 (2) KLT 443. In this later decision the High Court has taken note of the fact that sentence of imprisonment for the offence under Sec. 3071.P.C. is mandatory. It was held that 357 Cr. P.C. cannot be invoked in derogation of or In substitution of mandatory jail sentence provided in 307 IPC. The decision reported in 1995 (2) K.L.T. 443 has been partly overruled.