Coastal Regulation Zone Notification and Its Impact on Kerala Region

(By P.C. Chacko, Senior Advocate, Ernakulam)

This is a notification issued by the Government of India based on certain directives contained in the Parliamentary enactment called "The Environment Protection Act 1986". Actually the above Act is the necessary sequence of two Articles of the Constitution brought in as per the 42nd amendment of the Constitution in 1976. Those Articles are 48A and 51A(g). The former is stated as the duty of the State to protect and improve the environment and to safeguard the natural resources of the Country. The later is stated as the duty cast on citizen of this Country to preserve and improve the natural environment including forests, lakes, rivers and wild life.

The Environment Protection Act 1986 empower the Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. It is laid down in the said Act that for achieving these objectives the Central Government can take measures, such as restriction of areas in which an industry, operation or process shall not be carried out or shall be carried out subject to certain safeguards. The Environment Protection Rules 1986 issued on the basis of the Environment Protection Act lays down the procedure, the Central Government is to follow in this regard. First publish the draft of the notification, giving brief description of the area, the industries, operations or processes which it wants to prohibit or restrict in the CRZ area and the reason for the same. It is after considering those objections received on the basis of the draft notification aforesaid that the Central Government is to finalise the notification defining the CRZ area and imposing prohibition and restrictions wherever it is necessary and expedient.

In the instant case before the finalisation and issuance of Coastal Regulation Zone Notification 1991 the Central Government issued the draft notification in December 1990 defining the CRZ area as comprised of Coastal stretches of seas, bays, creeks and estuaries and invited objection from the public on matters covered by the draft notification. In the draft the object of the notification was stated as the need for protecting the coastal areas and for ensuring that the use and activities in the Coastal areas are consistent with the principles and requirements of environmental conservations. In the objection process, on the plea of environmentalists to include water bodies comprised in backwaters and rivers also in the definition of CRZ area the same was included widening the definition of the CRZ area. It may be noted that for this inclusion no fresh draft was published nor views of State Governments or other local authorities obtained. The consequence was CRZ area in Kerala is magnified 10 times that what was intended by the draft notification.

CRZ area definition

As at present, CRZ area is defined as Coastal stretches of seas, bays, creeks, estuaries, backwaters and rivers affected by tidal action, upto a limit of 500 meters from the landward boundary and the land in between High Tide Line and Low Tide Line. As per the Note to this definition, for imposition of prohibitions and restrictions the 500 meters distance is relaxable in the case of creeks, backwaters and rivers. In respect of these waters bodies the restrictive distance is be decided by the respective State Governments on a case to case basis subject to the condition that it shall not be less than 100 meters from the land water boundary. As regards the extent to which tidal effect can go in backwaters and rivers, for the purpose of determining the CRZ area on both sides of these water bodies no guidelines is indicated in the notification. It is left to the respective State Governments and Union Territory administration. What happened in the case of the State of Kerala is that the Department of Science, Technology and Environment with the help of Centre for Earth Science Studies drew up the Coastal Management Plan fixing the CRZ area around these water bodies viz. backwaters and rivers influenced by tidal action based on salinity measurement in these water bodies. Any area where there is salinity upto 5 ppm on account of tidal effect was treated by them as coming within CRZ.

Restrictions and prohibitions in CRZ area

Para 2 of the notification mentions prohibited activities. Para 3 mentions regulation of permissible activities in CRZ area. The prohibition is in respect of

(1) Setting up of new industries and expansion of existing industries except those directly related to water front or directly needing foreshore facilities.

(2) Setting up of expansion of fish processing units including warehousing. There is a proviso added to this by the 1997 amendment, which states existing fish processing units for modernization purposes may utilise 25 % additional plinth area required for additional equipments and pollution control measures subject to existing floor area ratio and subject to Pollution Control Board approval.

(3) Land reclamation which disturb the natural course of sea water.

(4) Harvesting of drawal of ground water and construction of mechanisms therefor within 200 meters. of High Tide Line in the 200 mts. to 5 00 mtrs. zone.

(5) Construction activities in ecologically sensitive areas as specified in Annexure I of the notification. This is the restriction specified for category 1 to IV CRZ area.

(6) Any construction activity between Low Tide and High Tide Lines except facilities for carrying effluents and waste water discharge into the sea.

There are other prohibitions also for which there cannot be any objection and therefore not adverted to herein.

For certain specified activities mentioned in the Notification, like construction activities related to Defence requirements. Thermal power plants, environment clearance is required from the Ministry of Environment and Forests, Government of India. The notification states that clearance is automatic only for any activities if it requires water front and foreshore facilities. One of the activity for which permission from Environmental Ministry is required is activity with investment exceeding Rs.5 crores. All other activities are regulated by the concerned State level authorities in accordance with the provisions of para.6(2), Annexure 1 of the Notification. In other words, this means all developmental and construction activities in different categories of CRZ area shall be regulated in accordance with the norms stipulated for those categories.

Categorisation of CRZ area in the Notification

In the notification CRZ area in the Country is divided into 4 categories.

(1) Category 1 comprised of ecologically sensitive and important areas such as National Parks, Marine Parks, Sanctuaries, Mangroves, Corals and areas close to breeding and spawning grounds of fish. To this is included the entire area between the HTL and LTL stretching all along the coast. The prohibition and restriction so far as Category 1 area comprised within 500 mtrs. landward side of HTL, is that here no new construction is permitted. In the area between the HTL and LTL also no construction is permitted except in a limited way, such as facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes oil, gas and similar pipelines.

In the CZMP for Kerala, area comprised within category I, is identified as 100 mtrs. belt around mangroves, forests, in few places in Vypeen Island. 100 mtrs. belt around adjoining filtration ponds (shallow water bodies) in several places in Cochin. Outstanding natural beauty area like Kovlam, Varkala, Papanasam pilgrimage centre, Ezhimala etc. also will come under this category. The total area under this category is estimated as 68.006 sq. km. As per the CZMP report, besides the area aforesaid there is an extent of 30.387 sq.km. area comprised of land in between HTL and LTL coming under this category.

(ii) Category II - This comes mostly within Municipal and Corporation limits, areas which are already substantially built up and which have been provided with drainage and approach roads and other infra structural facilities such as water supply and sewage mains. Here building construction permitted only on the landward side of the existing road or roads proposed in the approved CZMP of the area or in the 1 and ward side of the existing authorised structures. No construction is permitted on the seaward side of the existing road or roads proposed in the approved CZMP. Reconstruction of the authorised building to be permitted subject to the existing FAR norms and without change in the existing use. In Kerala 19 coastal Municipalities and three Corporations comes under this category. Both the sea coast and the backwater and river side with tidal effect comes under this category. The total area comes under this category in Kerala is 68.478 sq. km.

(iii) Category III - Under this category comes areas that are relatively undisturbed and those which do not come either under category I or II. These are practically rural areas. All areas falling in Grama Panchayats are demarcated as CRZ III. Both the sea coast and the backwater and river side area with tidal influence, comes under this category. Here the area upto 200 metrs. from the HTL is to be earmarked as 'No construction Zone'. No construction shall be permitted within this zone except for repairs of existing authorised structures not exceeding FSI, existing plinth area and existing density. There is no restriction for this area to be used for agriculture/ horticulture gardens, pastures, parks, play fields, forestry and salt manufacture from sea water.

Vacant plots between 200 and 500 mtrs. of HTL can be used with the prior approval of MEF for construction of Hotel/Beach Resorts for temporary occupation of tourists, subject to condition as stipulated in the guidelines in Annexure II. As per Annexure II the total plot size shall not be less than 0.4 hectares and the total covered area on all the floors shall not exceed 33% of the plot size i.e. the FSI shall not exceed 0.33. The overall height of the construction upto the height ridge of the roof shall not exceed 9 meters and the construction shall not be more than 2 floors between 200 and 500 meters.

Construction/reconstruction of dwelling units be permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and goathans. But there is restriction that the total number of dwelling units shall not be more than twice the number of existing units and total covered area in all the floors shall not exceed 33% of the plot size and over the all height of the construction shall not be more than two floors. The total area comes under this category in Kerala is estimated as 341.825 kms.

(IV) Under category IV comes Andaman and Nicobar Islands in one group and Lakshadweep and small islands in another group. Though regulations pertaining to Andaman, Nicobar and Lakshadweep islands by its very nomenclature is not applicable to any part of Kerala, there is no reason to think that regulation stipulated for small islands is not applicable to islands in the water bodies like Vembanad, Ashtamudi and other backwaters. Possible explanation can be that one is island in the sea and the other is island in backwaters. Anyway when CZMP was drawn up by the State Government they decided to keep out category IV small islands for any water bodies in Kerala.

Dealing with small islands in category IV the notification specifies that the restrictive distance from the High Tide Line here is to depend on the size of the island. This has to be laid down for each island in consultation with experts and with the prior approval of the Ministry of Environment. Here also the newly constructed buildings shall not have more than 2 floors, ground and first floor and the total height of the structure shall not exceed 9 meters. Further restriction here is that the total covered area on all floors shall not be more than 50% of the plot size.

Anomalies in the Definition of CRZ Area

In the matter of giving a definition to CRZ area, the Central Government committed grave error. First thing is that coastal area as understood in common law alone was identified to be included in the definition of CRZ when the draft notification was published in December 1990. Draft notification was published specifying only coastal stretches of seas, bays, estuaries and creeks as corning within it. The object was also stated to be for protecting the coastal areas from environment hazards. When final notification was issued this definition was widened by including water bodies comprised in rivers and backwaters which are affected by tidal action on the objection/suggestion by the Environmentalists without fresh draft notification issued and objection called for. Secondly no guideline is given in the notification as to how the CRZ area is to be drawn up by the concerned Coastal States based on tidal effect in backwaters and rivers. In other words, what the notification means by tidal effect and to what distance the tidal effect can go in backwaters and rivers, no criterion is indicated in the notification of the Central Government. What the notification states is that this can be determined by the State Government on a case to case basis while preparing the CZMP subject to the condition that this distance shall not be less than 100 mtrs. or the width of the river, backwater of creek, whichever is less.

Instead of leaving the matter to be determined by the State Government the Central Government should have indicated the limit unto which tidal effect can go. They could have followed the "Sere Lantern Law" of tidal effect limiting it to a distance of 2 kms from the sea river entrance point. For clarity the said provision is extracted below.

"That area lying within a limit of three hundred meters landward of the Mean High Water Line and a limit of two kilometers seawards of the Mean Low Water Line and in the case of rivers, streams, lagoons, or any other body of water connected to the sea either permanently or periodically, the landward boundary shall extend to a limit of two kilometers measured perpendicular to the straight base line drawn between the natural entrance points thereof and shall include waters of such rivers, streams and lagoons or any other body of water so connected to the sea".

What happened in the matter is that the State Government in exercise of the power vested in it under para.3(1) of the notification adapted the yard stick of 100 mtrs. from the land water boundary as the area comprised in CRZ so far as banks of backwaters and rivers are concerned. The impact of tidal effect to determine the CRZ area they adopted the criterion of salinity of water in rivers and backwaters. In this process they also adapted the principle of excluding areas inside the bunds which arrests the inflow of tidal water from CRZ area. It is on this principle Kuttanad is excluded from CRZ on the ground of Thaneermukkam and Thottappilly Spillway arresting the tidal flow to this region. As reason for adapting shorter distance of 100 metrs. from land water boundary instead of 500 mtrs. regulation zone for all water bodies they say if 500 mtrs regulation zone is adopted vast streches of land in Kerala will have to be brought under the Regulation Zone. This will greatly retard developmental activities in the State when population density per square kilometer in rural area of coastal region is above 2000 and above 4000 in urban area. At the same time average density of population in Kerala is below 700 per sq. km. Effective area available for developmental activities will not be in proportion to the population if Notification CRZ area is adopted. Hence lesser regulation zone proposed. The State Government was not correct in the adoption of salinity of 5 ppm as a criteria to ascertain the CRZ area. In the first place salinity is not a criteria laid down by CRZ notification. What is laid down in the notification is tidal influx and not salinity which has little salinity. Secondly 5 ppm is a very low density in routine life. PPM means part per million. Usually salinity is measured in ppt which means parts per thousand. Thirdly salinity in river-mouth is an oscillating phenomenon. Salinity varies shapely with depth. Salinity also varies with season.

To what extent and in what manner the notification affects Kerala

Kerala is a land of rivers and backwaters. 44 rivers and 4 backwaters cut across Kerala with their innumerable tributaries and branches. Backwater includes lakes and ocean inlet which stretch irregularly along the coast. When the estimated coastal line of the Country is 6000 kms. the coastal line in Kerala itself is around 560 kms. Banks of rivers and backwaters affected by tidal action is besides the above extent. On a recent estimate 15.43 % of the total area of Kerala is found to be affected by the CRZ notification. Limited land availability and high population is the distinct phenomenon of Kerala. Though Kerala represents only 1.18% of the total area of India. 3.4% of the total population of this Country is in Kerala. It is the density of population especially in the coastal areas and the limited land availability for development that is facing as problem hindering the implementation of CRZ notification.

In the Environment Rules, specific mention is made that before imposing restrictions and prohibitions the Central Government should take into consideration various factors, like topographic and climatic features of the area, biological diversity of the area which in the opinion of the Central Government needs to be preserved, net adverse environmental impact likely to be caused by industries, processes or operation proposed to be prohibited or restricted etc. Supreme Court also has ruled that environmental restrictions should not hamper developmental activities. Both must go together. It is evident that the above aspects highlighted in the Rules have not been given due consideration when the notification was issued. It is further evident than the State Government also did not give much attention to these aspects when they drew up the CZMP. As cause to this it may be argued that in the matter of preparing CZMP due publicity could not be given, objections were not called for, local authorities were not consulted, etc. because of the speed with which it was done based on the Supreme Court direction to prepare and finalise the CZMP within a particular time indicated in the judgment rendered at the instance of the Environmentalists. The net result of all this is that without looking into the adverse impact, uncalled for areas were unnecessarily brought into the definition of CRZ and restrictions and prohibitions were imposed creating untold sufferings to many.

Inclusion of the area around backwaters and rivers affected by tidal action was' without following the procedure fixed therefor as per the Rules. The purport of the notification imposing restrictions and prohibitions is for settlement of environment and also for avoiding environmental pollution. Stating these as grounds there was no report or data before the Central Government for inclusion of backwaters and rivers affected by tidal action within CRZ. Yet those areas were included in the CRZ. By reason of inclusion of these areas especially by the adoption of the citerion of salinity to determine the extent and depth of tidal effect, more areas were unnecessarily brought within CRZ. Consequences was that not only river sides and areas around backwaters were brought within the fold of CRZ but also its tributaries i.e. areas around canals and thodes which were affected by tidal action. Consequence being prohibition and restrictions laid down in the CRZ notification were made applicable to these areas also. To add to this is the circumstance that the State Government while preparing CZMP did hot for want of details, excluded the entire areas behind all the bunds which arrest the tidal influx, but mentioned only the important ones like Thanneermukkam barrage and Thottappilly Spillway. Non-mentioning of all bunds which arrests the flow of tidal effect gave occasion for the plea that non excluded areas in CZMP will come within CRZ though actually not so. Another aspect of the matter which requires consideration is as regards actual CRZ area coming under category II. Here prohibition and restrictions is inapplicable on the landward side of the existing or proposed roads in the approved Coastal Zone Management Plan or on the landward side of the existing structures. Which is that excluded again each Municipality, Corporation or Panchayat is discernible only on perusal of PWD records or local authorities records which admittedly have not - been looked into at all while CZMP was prepared by the State Government. This is causing difficulty to many. This has to be rectified by a survey of such existing records relating to existing roads, proposed roads and existing structures.

Categorisation of sea facing CRZ area into category 1, 2 and 3 and imposition of distinct condition to each such category is understandable but applicability of such categorization and distinct conditions to other water bodies i.e. backwater and river facing areas is understandable. This is so because in the CZMP drawn up by the State Government restrictive distance for imposition of prohibition and restriction is 100 meters uniformly from the land water boundary, whether area comes under category 1,2 or 3. This in other words means by reasons of stipulation of 100 meters uniformly. In respect of such water bodies categorisation has no meaning 100 meters from land water boundary is always restriction zone. Whereas in the case of sea facing CRZ area, where the no-development zone depends on category to which it belongs and which extent goes upto 500 meters from land water boundary. It is necessary that the State Government should have a second look into these aspects.

In this process the most pitiable is the position of people who are residing and owning properties in the islands, especially in Vembanad backwaters. Here except Vypeen Island all the other Islands are having width only below 500 mtrs. The Vypeen Island western side is Arabian Sea and all the other sides are surrounded by Vembanad backwaters. This means 500 mtrs. area from the High Tide Line of the western side is to remain as 'Non Development Zone' all the other three sides being backwater area, at a width of 100 metrs. from HTL is area likewise to remain as 'Non Development Zone' The net result is that a major portion of the Island is 'No Development Zone'. In the case of other Islands like Thanthonni, Kadamakkudi, Perumbalam etc., the width of which is less than 100 mtrs. on the four sides 100 mtrs. width is to be kept as 'No Development Zone'. This means on no part of the Island any development is possible at all. One striking feature so far as these islands are concerned is that there is no environmental problem here. Here the land, water and air is absolutely non-polluted by any industry or the like. Therefore in the guise of abating pollution or betterment of environment, there is no necessity to retard developmental activities in these areas.

Take also the case of main land sea facing coastal area starting from Neeleswaram on the north upto Kanyakumari in the South. Coastal area from Kochi to Kanyakumari is thickly populated. Barring a few places where there is public road separating the beach from the private land, most areas are places where there is no public road and consequently there is no accessibility to the beach at all. Access to the beach is obstructed by thickly populated houses. It is evident from the notification that one of the reasons for the 500 metrs. landward area from HTL to be kept as CRZ zone is that the public should have free access to the beach and the coastal line. That is the reason why in the notification stipulation is made that in between two resorts hotels permitted to be put up in CRZ category III (area in between 200 mtrs. and 500 mtrs.) there should be vacant space of 20 mtrs. at least and further the provision permitting fencing, stipulates the condition that it should in no way hamper public access to the beach. In view of the circumstance that in most parts of Kerala the area upto the coast is privately owned property, having no public road separating it with the coast, accessibility to the beach is impossible unless a public road at the instance of Government is constructed through the privately owned property making it possible for the public to have access to the beach.

Comments on the Proposed Christian Marriage Bill

(Fr. Joseph Vadakumcherry, Archdiocesan Tribunal, Ernakulam)

By the enactment of the envisaged 'Christian Marriage and Matrimonial Causes Act, 1990', a common 'Christian Personal Law' on marriage will come into force, replacing thereby the archaic and outdated Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872. The proposed draft Bill is the net result of the initiative taken by the Joint Women's Programme (JWP) and the Church of North India (CNI), which was later endorsed also by the National Council of Churches in India (NCCI).

The draft Bill contains 44 Sections distributed in 7 Chapters. Chapter I carries the title 'Preliminary' and contains the short title, definitions and explanations of certain legal terms in Sections 1 -- 3. Section 1: (ii) reads: "It extends to the whole of India except the State of Jammu and Kashmir.......". It is not understood why the State of Jammu and Kashmir which is an integral part of India as a whole should be excepted from the application of this Bill! The Christians of various denominations belonging to the State are truly Indian Christians!

Section 2 reads: "Nothing in Chapter VI of this Act shall apply in relation to a marriage of Roman Catholics and Christians of Orthodox tradition, unless the parties or one party to the marriage records in writing his/her decision to be governed by this Chapter before a Notary Public (at the time of their marriage or) at any time during the subsistence of their marriage". Chapter VI indeed deals with the question of divorce. As for the Catholic spouses it is essential that the recording of the 'decision' mentioned above is carried out precisely in connection with the marriage itself, and not later at any time during the subsistence of the marriage. For, a valid Christian Marriage cannot be but at the same time a Sacrament whereby it is also indissoluble. An intention from the part of either of the spouses to enter into a dissoluble marriage would automatically render the said marriage invalid from the very beginning. Therefore only on making clear the intention of entering a sacramental marriage or otherwise at the time of the marriage, the Church can decide upon administering a valid sacramental marriage or not to the party concerned.

In Section 3(a) the term 'Christian' is defined as 'a person who professes and practises the christian religion'. This definition, is inadequate without the incorporation of the term 'Baptism' into it, because, Baptism alone is the distinctive and juridically identifiable basic factor of becoming a christian.

In Section 3(m) the explanation No.1 reads: "Relationship includes, (a) relationship by half or urine blood as well as by full blood". It is to be noted that the given explanation of relationship includes only consanguinity, and not affinity, whereas affinity also is mentioned in S.27(3) while speaking about the prohibited degree of relationship.

Chapter II deals with the conditions for christian marriage in Sections 4 - 5. Section 4 reads: "Every marriage between persons one or both of whom is or are christians shall be solemnised in accordance with the provisions of this Act, provided that in the case of tribal christians the Customs and Usages demand that both be christians". According to the Canon Law of the Catholic Church disparity of cult among the spouses is a diriment impediment to marriage, and hence for the solemnisation of a sacramental christian marriage it is essential that both the spouses be christians.

S.5 lays down conditions for the christian marriage as follows: (i) "Neither party has a spouse living at the time of the marriage".

(ii) "At the lime of marriage neither party, (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage or procreation of children". There is some ambiguity in the use of the phrase 'valid consent' in clause (b) above: for, one who is unfit for marriage due 10 a mental disorder cannot at all give a valid marriage consent. Marriage consent has to be valid when considered both subjectively as well as objectively. Subjectively, i.e., in relation to the agent of the consent, the marriage consent should be a human act which requires that a deliberate and free practical discretionary assent of the mind is elicited from the part of the agent, and so the unsoundness of the mind as mentioned in (a) above renders the marriage consent invalid subjectively. Objectively on the other hand, i.e., in relation to the object of the marital consent, unless the agent is able to reach out, honour and sustain what constitutes the object of marriage (the rights and duties of married life), he would not be in a position to elicit a marriage consent validly, because, such a consent would be bereft of object. Therefore one who is unfit or unable to assume and fulfil the essential obligations of married life due to a mental or personality disorder would not be capable of giving a valid consent objectively. Hence the diction in (b) above -- 'though capable of giving a valid consent' is not correct.

Further, the conditions implied in clauses (a) & (b) are rather hard and impracticable since the verification of the same might require a judicial probe leading to very serious inconveniences. As a matter of fact, lunacy and idiocy have been made grounds for nullity of marriages in Section 27 (4), and this will serve all practical purposes regarding the nullity of the marriages arising from the defect of intellect or insanity or inability to assume and fulfil marital obligations on the score of any serious personality disorder.

(iii) "The bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage".

(iv) "The parties are not within the degree of prohibited relationship".

(v) "Where the marriage is to be solemnized outside India, both the parties should be domociled in India'.

Chapter III deals with the solemnization of christian marriages. Sections 6 and 7 speak about persons authorised to solemnize marriages. Section 6 reads: "Marriage may be solemnized under this Act, (a) by any minister of a Church, who has been appointed according to the rules and regulations of the Church". It is to be noted that according to the rules and practice existing in the Catholic Church, marriages are solemnized not only by making use of the official power conferred to by appointment to an office, but also by making use of the delegated power. Hence the term 'deputed' or 'delegated' should be added disjunctively to the term 'appointed' in the above mentioned clause in order to read: "who has been appointed or deputed".

Sections 8 - 11 deal with the appointment of Marriage Registrars, and Sections 12-22 speak of solemnization of marriages by minister of Churches, by licensed minister, and by Marriage Registrars. Section 23 takes on the 'Registration of Marriage'.

Chapter IV deals with 'Judicial Separation' in Sections 24 - 25. In this connection it is to be noted that the Church Tribunals also should be entitled to issue the decree of 'Separation from bed and broad', which practice is in force in the Catholic Church according to Canon Law.

Chapter V deals with 'Nullity of Marriages*. Section 26 speaks of 'Void Marriages' which are considered such for reasons either of an existing marriage bond, or unsound mind, or mental disorder, or prohibited degree of relationship of the parties to marriage. Section 27 takes on 'Voidable Marriages', which are declared such on the grounds of impotence, in consummation, prohibited degree of consanguinity or affinity, lunacy or idiocy, existing marriage bond, and fraud or force under certain conditions. In this connection it is to be noted that Canon Law offers more grounds of nullity than those envisaged in the proposed Act.

In Clause 6 under Section 27 marriages of Roman Catholic or of member of any other Church which have been declared null and void according to the rules and regulations of the Church are included in the category of voidable marriages. However, similar to the event of 'Registration of Marriages' as contemplated in S.23, there is no provision as to the taking effect of the decree on nullity issued by the Church Tribunals in respect of voidable marriages mentioned in Section 27, Clause 6.

Section 28 deals with the question of 'Legitimacy of Children' in the case of void/voidable marriages.

Chapter 6 takes on 'Grounds of Divorce' in Ss. 29 - 32, and on 'Remarriage of Divorced Persons' in S.33. S.33(ii) reads: "No minister of the Church shall be compelled to solemnize- any such marriage", i.e., remarriage. This prescription is earmarked precisely for indemnifying the Catholic position in respect of divorce and remarriage of divorced persons.

Chapter VII deals with jurisdiction and procedure: Ss. 34 -39 on Decree in Proceedings, and Ss. 40-44 on 'Relief for Respondent in Divorce and other Proceedings'

S.41 reads: "All proceedings under this Act shall be regulated as far as may be, by the Code of Civil Procedure, 1908.

While dealing with the question of evolving an updated personal law on Christian Marriage, we should indeed adopt a realistic and practical approach. We have to face, rather than turn our back to, certain realities which are concomitant to the question of a common Civil Code on marriage for the Christian communities of India.

On one side we have to take into account the bare fact that the hackneyed provisions of the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872 are still operative, and that as far as the law of the Country stands today, the Civil Judiciary, while handling the marriage cases of the Christians, cannot overlook the above mentioned Acts.

Since all the christian citizens of this Country come within the mischief of the Indian Divorce Act and the Indian Christian Marriage Act, it is high time that all the christian communities, irrespective of their denomination, should, through concerted efforts, try their level best to get the archaic and outdated civil marriage law either repealed or updated. There is no point in bringing about amendments to the Acts mentioned above, as it would only be tantamount to initiating a 'process of grafting' on an age old disintegrating tree trunk.

On another side we can see that the Catholic denomination of the Christian communities of India is already in possession and making use of a by far advanced codified system of personal religious law, namely, the Canon Law, for matters matrimonial. In. fact, Canon Law on marriage is invariably concerned with the spiritual values implied in the christian marriage which is a Sacrament. Hence it follows that the civil law should not only not go against these spiritual values, but should certainly safeguard them positively by giving due recognition to the personal religious law of the Catholics Respect for personal law would indeed be the key note of any democratic welfare society.

There is also another reality of no lesser importance which requires serious consideration. It is the fact regarding certain civil rights, for example, divorce, which were availed of by some of the non-Catholic christian denominations of India under the Indian Divorce Act.

It is the privileged task of any democratic secular Government to enact law-in line with the principle of equity and fairness which would ensure and enable the citizens belonging to the different religious denominations to avail of the civil and religious rights without any tinge of discrimination.

Hence, granted that the Catholic community is already availing of a codified system of religious law on marriage, it becomes a reasonable proposition that provision is made in the proposed 'Christian Marriage and Matrimonial Causes Act' to the effect that Canon Law of the Catholic Church on marriage is recognized as the personal law of the Catholic community of India with full civil effects, so much so, that the said community would be able to avail of their religious rights concerning the Sacrament 01 marriage, without any collision with or encroachment by the Civil Law of the Country. This provision may be incorporated in the proposed Act by replacing, by way of substitute clauses, the Section 2 of the Preliminary in Chapter I.

The enactment of the proposed Act may perhaps be protracted to a far away future beyond determination. Since the Indian Divorce Act and the Indian Christian Marriage Act remain still operative there remains also every chance for a collision between Canon Law and the Civil Judiciary whenever controversy arises in matter; connected with Catholic marriages. Although the Civil Courts in the past have pronounced in favour of Canon Law as personal law of the Catholics, few recent judgments of the Civil Courts of Kerala seem to have ignored such precedents.

However, since the Catholic community of India is at present availing of an updated codified personal religious law in order to deal with cases connected with the Sacrament of marriage, it is only meet and just that the Civil Judiciary while handling and taking decision on the marriage cases of the Catholics does not simply feign to assume as 'ignoramus' attitude and resort solely to the Indian Divorce Act and the Indian Christian Marriage Act. Otherwise, it will be tantamount to the obstinacy of a Surgeon who would only resort to those instruments belonging to the stone age in order to perform a surgical operation on persons of modern times, belonging to a particular religious community.

What is said above is just to pinpoint how much urgent and imperative is the need to arrive at a general consensus of all concerned on a Common Civil Code on Christian Marriage at the earliest, which would be consonant to the present day socio-juridical conditions and life situations of the Indian Christians of various denominations.

The Role of the Judges in Contemporary Society

(M. Mathew, Advocate, Ernakulam)

Courts like the other branches of Government, belong to the people, they serve the individual and the public interest through legal processes slowly and carefully evolved over centuries. An independent judiciary need not be a mysterious area of government or appear to be an occult priesthood. Indeed of all branches of the Government, it can be seen as the most open; all its hearings are public, and all its decisions are promptly made public. No one may address arguments to the Court except in public sessions of the Court and by printed briefs available to public examination. Justices who disagree with the majority have their dissenting views printed with the Court opinion.

It has been said that, except for its decision conferences, the Courts literally operates "in a goldfish bowl" Like all institutions it consists of flesh-and-blood morals with individual personalities, the normal human traits, their lives and activities are available to any person diligent enough to inquire.

Most people know, or think they know, what the Executive and the legislature are expected to do under our constitution. Far fewer have a clear idea of what goes on in the Courts generally. Even though hundreds of thousands of visitors have gone through the Court buildings and perhaps have observed oral arguments briefly, for most it has remained a remote austere "marble temple" housing seldom seen jurists who periodically issue pronouncements on the law of the land. This is not because the justices prefer remoteness, but chiefly because they are engrossed in the confining task of reviewing cases and writing opinions. It is surely not because they do not want people to understand the judicial function in our system; unfortunately there are relatively few people qualified to interpret and explain the Court's role in terms widely understood and even fewer who undertake to address public on the subject. But happily now this is changing.

Judicial Integration

(By P.S. Vasavan Pillai, Advocate, Trivandrum)

The pros and cons of Judicial Integration are now under active deliberation of the Bench and Bar.

Now a Munsiff in the Civil Judicial service can get promoted first as a 'Sub Judge and Assistant Sessions Judge', a combined post. Thereafter he can get promoted as a District and Sessions Judge in the scale of Rs.4435-5285 and also as a High Court Judge. But in the criminal side, a Magistrate who starts as a Second Class Magistrate becomes on promotion a First Class Magistrate and later a Chief Judicial Magistrate Grade II (Rs.2470-3675) at first and then a Chief Judicial Magistrate Grade I (Rs.2640-3815). After that there is no promotion and that's why those officers in the Criminal side demand for integration.

Law has grown to multidimensional extents and therefore to be a master of all branches of law is an impossibility. One cannot be very much learned even in all branches of the Civil wing itself. In that situation to be well-versed in both Civil and Criminal divisions is beyond one's attainment. The Judge or Judicial Officer who concentrates in one division only, will be better fitted to discharge his functions than one who diverts attention to both divisions. Therefore it is better that the Civil and Criminal wings of the judiciary are kept separate as at present.

However, it is necessary that the Officers in the Criminal wing also do not feel frustrated on account of lack of promotions. For that I suggest the following changes.

The present combined post of Sub Judge and Assistant Sessions Judge should be split into those of Sub Judge and Assistant Sessions Judge. The combined post of District and Sessions Judge should be split into those of District Judge and Sessions Judge. Munsiff should be given promotion to the post of Sub Judge and 1st Class Magistrate to that of Assistant Sessions Judge. So also Sub judge is to be promoted to District Judge and Assistant Sessions Judge to Sessions Judge. There should be promotion to the High Court from both District Judges and Sessions Judges. High Court Judges promoted from District Judges can take care of Civil matters and those from Sessions Judges can handle criminal matters.

The present scale of pay of Chief Judicial Magistrate Grade I which is higher than that of Sub Judge should be fixed for both the posts of Sub Judge and Assistant Sessions Judge.

Section 5(3) of the Central Sales Tax Act - An Appraisal

(R. Krishna Iyer, B.Com., F.C.A., Chartered Accountant, Ernakulam)

Preamble

The Honourable Minister of Finance in his Budget Speech in March 1990 said that the problem before the country is the strain on the 'Balance of payments position'. The higher foreign borrowing to finance the essential import requirements runs the risk of mortgaging economic independence. Therefore, the Central Government is giving top priority to exports and give special encouragement for exports which .would earn higher foreign exchange. This thrust was also seen in the approach of the Government in the recently convened 'Open House' in Cochin under the aegis of the Hon. Commerce Minister of India.

Under the existing laws, one of the concessions given to boost exports and to enable the exporters to compete with the foreign market is the concession in Sales Tax on goods exported. On this view in 1976, the Government of India decided to treat certain sales to exporters as 'Demand Exports' by which they are exempted from levy of Sales Tax.

Analysis

According to S.5(1)of the Central Sales Tax Act, a sale or purchase of goods can qualify, as a sale in the course of export, if the sale or purchase has occasioned such export or is by a transfer of title to the goods. The Supreme Court held that the sale by an Indian Exporter from India to a Foreign importer alone qualifies as a sale which has occasioned the export of goods. (36 STC 136) As per Export Control Regulations, exports of certain goods can be made only by specified agencies such as State Trading Corporation. The small and medium scale units have to depend on some experienced export houses for export of the goods because special expertise is needed for carrying out an export trade. Therefore if such sales by these units do not qualify as sales in the course of export, they would be liable to pay sales tax and there would be corresponding increase in the price of the goods. This would make exports incompetitive in the tough and competitive international market.

Under these circumstances there was an amendment to the Central Sales Tax Act. By that amendment, the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India, shall also be deemed to be in the course of such export, if such last sale or purchase took place after and was for the purpose of complying with the agreement or order for, or in relation to such export.

There is a constitutional bar on collection of sales tax on export sale. By virtue of the above amendment, the last purchase or sale occasioning export, on certain conditions would be treated for the purpose of sales tax assessment as export sale by which there cannot be any levy of sales tax on such purchase or sale.

This amendment has come into effect from 1.4.1976. There are three conditions to treat the sale as export sale for the purpose of entitlement to exemption.

(1) The transaction of such last sale or purchase takes place after the agreement or an order has been received by the exporter from his foreign buyer.

(2) The last purchase must have taken place after the agreement with the foreign buyer was entered into and

(3) The preceding purchase or sale should be of the same goods for which export order has been received and to be exported.

From the above three conditions, it is very clear that the goods should be purchased or sold by the exporter only after obtaining the Purchase Order from the foreign buyer and in turn transferred to the local suppliers. Another condition is that the local supplier should buy and sell the very same goods for which the exporter obtains order from the foreign buyer.

There is a great significance in the third condition with reference to the kind of goods, the export of which is dealt with or "the same goods" which were referred to earlier.

For example, when Cashew nuts are purchased, processed and thereafter if the cashew kernel were to be exported, it does not constitute export of the same goods and hence exemption under this section would not be available.

As stated earlier, this amendment is made to the Central Sales Tax Act with the object of reducing the cost of items exported by which the exports can be made competitive in the global market. As per Sales Tax laws, the point of levy of sales tax is on sale or purchase. Again in the case of points of levy of tax on items of purchase, it may be on the first point or last point of purchase. In the case of spices, prawns etc. the point of levy in Kerala is on the last purchase. In other words, the dealer who is the last purchaser in the State is liable for payment of Sales Tax. There is substantial export of Pepper and Prawns from Kerala. By the Amendment to the Central Sales Tax Act, the turnover of goods exported becomes exempt and Kerala Government has to lose heavy revenue on this account. The Kerala Government felt that by the Amendment, only the Central Government is getting the benefit of exports. On the contrary, the Kerala State Government is losing the revenue of sales tax. In order to avoid the loss of revenue, Kerala Government amended the first schedule of the Kerala Government Sales Tax Act by which the entry in the first schedule of 'Pepper' was classified into 'garbled pepper' and 'ungarbled pepper' from 1.4.1978.

Similar amendment was made in the case of 'prawns', by differentiating 'prawns' and 'frozen prawns'. The idea behind this classification in this schedule is that there would be a last purchaser for the ungarbled pepper and raw prawns in the State and they would be liable to pay Sales Tax as last purchaser. One of the conditions for claiming the exemption under S.5(3) of the Central Sales Tax is that the preceding purchaser should purchase and sell to the exporter the same commodity for which the exporter has obtained the purchase order and goods exported. The idea of classification is that 'ungarbled' and 'garbled pepper', 'prawns' and 'frozen prawns' are different commodities and therefore the last purchaser of the prawns or ungarbled pepper have not sold the very same goods to the exporter. If they have sold 'garbled pepper' and 'frozen prawns', they are different commodities and therefore claim of exemption is not available under S.5(3) of the Central Sales Tax Act.

As per the decision of the Honourable High Court of Kerala, the 'garbled pepper' and the 'ungarbled pepper' are one and the same commodity. It has been held that 'pepper' merely because it is garbled, does not become another commercial commodity. Merely because in entry 58, 'Pepper' is itemised under two different heads, it need not be that these are two different commodities. A similar amendment was made by Karnataka State Government with effect from 1.9.1978 by which Prawns/Shrimps are classified into two categories; i) Shrimps, prawns and lobsters, ii) frozen shrimps, prawns and lobsters. In the entry it is also mentioned that 'processing' shall include cutting of head or tail, peeling, de-vening, cleaning or freezing. The effect of this amendment is that the dealers would be last purchaser of shrimps, prawns etc. but other than frozen shrimps, prawns etc. The issue was considered by Honourable Supreme Court in the case 'Sterling Foods' (63 STC 239). It has been held by the Honourable Supreme Court that the raw prawns, shrimps and lobsters remain the same goods in commercial parlance after such processing and freezing. The effect of these two judgments is that after the decision of the High Court and Supreme Court the exemption is available under S.5(3) for these goods.

The exporters of Coffee, participate in auction conducted by the Coffee Board. In that case the property in the coffee does not pass to the buyer at the fall of the hammer, but immediately on payment of full price and setting apart of coffee for delivery to the buyer. A question came up as to whether in such circumstances if an exporter before making full payment produces an agreement with an order from a foreign buyer, such a sale would attract exemption u/S. 5(3) of the Central Sales Tax Act. The question in this case is whether this exporter got the order after the (purchase of coffee) in which case he is not entitled to the exemption, since one of the conditions of the sale is not taking place viz. "after the agreement or order under which the goods". Alternatively if the purchase is not concluded and in the meantime the exporter gets an order from a foreign buyer, he is buying the coffee after obtaining the export order and therefore entitled to get exemption. This position has been settled by the Honourable Supreme Court (46 STC 164).

Another important question has recently emerged regarding the blending of tea and export. The dealers purchase tea in auction. They blend the tea and export in packets. The question that arises now is whether by blending does a change occur in the commodity?

The Honourable Bombay High Court, in 'Nilgiri' Tea Company's case considered that when tea of a different grade is purchased and blended for the purpose of producing the tea mixture, whether there does occur any activity of processing? The Honourable Bombay High Court held that it cannot be regarded as 'processed' since the commodity remained in the same condition. On another occasion, the Honourable Supreme Court considered this observation of the Bombay High Court; the court observed that as a result of mixing, a qualitative change in that tea mixture has come into existence because of the difference in quality and flavour of the various grades of the tea that were in the mixture. By this observation it can be concluded that by blending, the commodity produced is a different tea. If so, the tea purchased from auction is different from the tea exported and therefore they are not the very same goods and hence exemption u/s 5(3) of the Central Sales Tax Act is not available since one of the conditions is that the sale should be of the very same commodity that is purchased for export.

In this connection, the decision of the Honourable Supreme Court in 'Pio Food Packers' Case (46 STC 63) is relevant. According to the Honourable Supreme Court, the test is whether the original commodity is recognised in the trade as a new and different commodity. The test that is required to be applied is "does the processing of the original commodity bring into existence a commodity which is different and distinct"? On the application of this test it is clear that the blending of different qualities of tea cannot be said to involve process/manufacture, since the end product cannot be regarded as a new and distinct commodity. The Honourable High Court of Kerala has held that by the process of manufacture, if it is not affecting the character of the goods, the goods are said to be the same. (46 STC 512).

The Honourable Calcutta High Court observed that in order to characterise an operation as 'Processing', the commodity must, as result of the operation, experience some change. (16 STC 935). The Honourable Supreme Court in another case observed that in order to characterise an operation as a process that has resulted in a manufacture, the resultant product must be a different Commercial Commodity. Merely because certain articles are known by different names, it does not mean that they are different commercial commodity though infact, they are merely different forms of the same commodity. (60 STC 213). On this view Supreme Court held that timber and sized and dressed logs are one and the same commodity. Planks, beams and drafters would also be timber. In the same judgment, the Honourable Supreme Court mentioned the decision in another case and observed "what is relevant is how these entries are understood in common parlance specially in commercial circles".

It is also seen that various judgments delivered by the Courts in this regard are on different contexts and not on the issue involved in the case of 'blending' referred to earlier for the purpose of claiming deduction u/S. 5(3) of the C.S.T. Act. The decision of the Supreme Court on the "Sterling case" is directly on the point and moreover after the decision of Supreme Court in Chowgle's case, if the test suggested by the Supreme Court is applied in the blending of tea, it could be confirmed that by blending no new commodity is produced. The original character and its identity remains the same and it is continued to be called as tea in common parlance. Therefore there cannot be any doubt that the tea purchased in auction and later exported after blending can also avail the exemption u/S. 5(3) of the CS.T. Act. It is understood that the Board of Revenue has issued a circular earlier in 1978 clarifying that blending would not amount to manufacture and so it would not be considered as a different product from tea. It is also understood that the Tea Traders Association have submitted a memorandum to the Kerala Govt. to clarify the issue. The author feels that the Government would examine all the aspects of the case before issuing a clarification on this point.

As stated earlier the amendment to C.S.T. Act was made with a view to help the exporters reduce their cost and to encourage them turn over higher exports. It is true that by this amendment there would be some loss of revenue to the State Governments. But the State Government should consider the object of the amendment and try to help the exporters by making the provision liberal and to allow them to enjoy the benefits. The approach of the State Government making enactment by amending the laws results in defeating the purpose of the amendment. The State Government can very well represent to the Central Government for compensating losses in one way or the other and the State Governments should whole heartedly support the Central Government to earn more foreign exchange by increasing the exports in the interest of the country as a whole.