Contempt Power - Cipherise its User

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1991 (1) KLT 893 - Boon to Bankrupts?

(P. Rajan, Advocate, Tellicherry)

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

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

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

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

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

"Bork" - The Best Judge that the American 

Supreme Court Never Had

(N. Haridas, District Judge, Manjeri)

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

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

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

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

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

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

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

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

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

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

(By Roy Chacko, Advocate, Ernakulam)

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

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

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

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

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

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

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

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

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

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

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

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

1991 (2) KLT 306 - A Land Mark Decision

(By P.S. Vasavan Pillai, Advocate)

Disputes regarding the flow of natural water are too common now-a-days. Peace of the community is often disturbed on account of such controversies over the passage for water. Property owners usually do not allow water from adjacent properties on a higher level to flow on to their lands and consequently quarrels are galore.

In this context the decision in Yesoda v. YusuffHaji (1991 (2) KLT 306) by His Lordship Justice G. Rajasekharan is a landmark one. It fulfils a long-awaited declaration by the apex Court with regard to the right to drain off water on to the adjacent land owned by another. It should put an end to quarrels between adjacent property owners on account of flow of natural water.

While dismissing the petition to up-hold the right to prevent the flow of water from the high-lying adjacent land, the Learned Judge categorically declared, "Every property owner has a natural right of drainage of surface water to the property lying at a lower level... This is a natural right independent of an easement, grant or custom... ...This right of an owner of a land lying on a higher level could be an easement, quasi-easement right as well. Easement of drainage is the right of the owner of one land to cause the water on his land to flow in defined channel on the land of his neighbour. This is also a natural right of the owner of the higher land that the water rising in or falling on his land, shall be allowed by his neighbour owning the lower land to run naturally thereto. The natural right mentioned above is not restricted to natural drainage of water from higher to lower land but includes discharge, of it through a particular route at a specified point. This natural right is a right which can be claimed in respect of water naturally rising in or falling on one's land and not passing in defined channels. The right of an upper proprietor to throw natural water on the lower land is a natural right inherent in property. The lower riparian proprietor has no right to prevent such natural flow or to throw the flow back on to the upper riparian property".

Such decisions which will foster good neighbourly relations and peace and harmony in society are more and more welcome and it is necessary to highlight such decisions especially in the present day turbid atmosphere of the society.