Family Courts: an Object Yet to be Obtained

(By T.P. Sudha, Advocate)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Foot Notes:

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

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

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

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

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

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

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

Tax on Sales Tax

(Saju K. Abraham, Chartered Accountant, Ernakulam)

Can tax be levied on sales tax?

Taxation on income, taxation on wealth, taxation of gift, taxation on luxuries, taxation on sales etc. are popular and many of them are universal. But the. question - can tax be levied on amount received under the banner of sales tax is an eyebrow raising subject. It needs meticulous care and consideration before judging this question.

Sales tax on excise duty, Income tax on Sales tax payable, Wealth tax on Income-tax payable etc. have sustained many litigations from its constitutional validity to its mode of implementation. They are tax of one kind levied on tax of another kind. But, when taxing on tax under the same statute becomes a fact, it is unique. Thus, when turnover tax under the Kerala General Sales Tax Act, 1963 is levied on the salts tax collected under the same KG ST. Act, 1963 many eyebrows have been raised. Hence it is a topic for discussion.

Sub-s.(2A) to S.J to the Kerala General Sales Tax Act,1963 introduced by the Kerala Finance Act, 1987 (Act 18 of 1987) with effect from 1-7-1987 has authorised the never tax on the turnover of goods coming under the First or Fifth Schedule to the Act. ft is a tax payable @ 1.5% on the turnover of the above goods notwithstanding anything contained in the Kerala General Sales Tax Act, 1963.

Turnover

As Income-tax is charged on income, wealth tax on wealth and gift tax on gift, the turnover tax is a tax charged on turnover. Turnover is defined in S.2(xxvii) to mean the aggregate amount for which goods are either bought or sold, supplied or distributed by a dealer, either directly or through another, on its own account or on account of others, whether for cash or for deferred payment or other valuable consideration. Thus turnover includes the consideration for which goods are bought. The Supreme Court has taken the view in (12 STC476 (SC)) that in laws dealing with sales tax turnover includes sales tax. In England and the U.S.A. turnover has been held to include the tax. Justice Hidayathulla held that "in calculating the total turnover there is nothing wrong in treating the tax as part of the turnover, because 'turnover' means the amount of money which is turned over in the business (13 STC 98 (SC)). The Supreme Court has observed that in (43 STC13 (SC) "the test is what is the consideration passing from the purchaser tot the dealer for the sale of the goods. It is immaterial to enquire as to how the amount of consideration is made up, whether it includes excise duty, sales tax, or freight. The only relevant question to ask is as to what is the amount payable by the purchaser to the dealer as consideration for the same. These decisions and many more, brings us to the conclusion that sales tax collected along with the price of the goods whether shown seperately or not is forming part of the turnover." Justice Lawrence has stated in the case Paprika Ltd. v. Board of Trade (1944) 1 All ER 372 that "whenever a sale attracts purchase tax, that tax presumably affects the price which the seller, who is liable to pay the tax, demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as 'X' plus purchase tax." The Supreme Court has approved the above view and also the statement of Justice Goddard in Love v.Norman Wright (Builders) Ltd. (1944) 1 All ER 618 that "where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether that seller has included tax or not..........So far as the purchaser is concerned, he pays for the goods what the seller demands, namely, the price even though it may include tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover.

In the light of the above, turnover shall mean to include purchase tax, sales tax, excise duty etc; paid by the buyer in consideration of the goods. Thus sub-s.(2A) to S.5 of the Kerala General Sales Tax Act, 1963 provides the levy of turnover in the First and Fifth Schedule computed as above.

Precipitation of tax on computation

The proviso to S.5(2A) of the Kerala General Sales Tax Act. 1963 gives various^ exemptions that shall be reduced from the turnover computed as above for the purpose of fixing the liability of turnover tax. Though many of these exemptions are similar to the exemptions in Rule 9 of the Kerala General Sales Tax Rules, 1963 in determining the taxable turnover for sales tax computation, all those exemptions in Rule 9 are not allowed under the proviso to S.5(2A). Thus the sales tax collected by the dealer and shown separately in the bills is given exemption in rule 9 as clause (e), similar exemption is not provided for the computation of turnover tax. The proviso (1) to S.5(2A) allows deduction of that part of such turnover on which tax is leviable under sub-s.(l) or sub s.(2) of S.5 of the Act. This exemption is limited to the amount of turnover finally determined by the assessing authority for levy of tax under sub-s.(l) or sub-s(2) of S.5 of the Act. Here, in this proviso, the words 'such turnover' is something more than the word 'turnover' in the light of the use of the word 'such', which refers to the turnover of goods coming under the First or Fifth Schedule on which turnover tax is leviable. By the use of this word 'such' in front of the word turnover the meaning of the word turnover used in the section and in the proviso should be identical as discussed above. Thus sales tax, purchase tax etc. forms part of the turnover. But the proviso (1) allows exemption to that part of such turnover on which tax is leviable under sub-s.(l) or sub-s.(2) of S.5 which means the taxable turnover after deduction under Rule 9 of the Kerala General Sales Tax Rules, 1963. When the turnover of goods coming under the First and Fifth Schedule including the sales tax collected is reduced by the turnover of goods in the above schedules on which tax is leviable under sub-s.(l) or sub-s(2) of S.5, the sales tax collected will be precipitated to attract turnover tax. Sometimes, when the turnover includes only taxable turnover on goods coming under First and Fifth Schedule to the Act and if the total turnover exceeds the limit of 50 lakhs, the law builds up a situation to levy turnover tax on the sales tax precipitated only, as above. It is well established that logical has no place in the law. There are many instances where the law defeats logic.

Though the fact in the above circumstance is that, turnover tax is a tax on sales tax, in the legal vision it is purely a tax on the turnover. When the sales tax collected is precipitated as above it is taxed under the banner of turnover tax under S.5(2A) of the Act. The levy of the turnover tax is on the turnover of the goods which include the sales tax collected. It is only the computation of turnover for charging turnover tax that brings forth an amount equal to the sales tax collected or sometimes the aggregate of the sales tax collected and non-taxable turnover of goods coming under the First or Fifth Schedule.

Purchase tax

In the light of the decision cited early the purchase tax paid by buyer also falls within the meaning of the word turnover. Hence the seller will have to include the purchase tax paid by the buyer on goods sold by him in the computation of the turnover for determination of turnover tax. Though such events are rare, levying of turnover tax on the purchase tax cannot be ruled out as unlawful.

Tax on Sales tax

Thus "the tax on Sales tax" is a legal phenomena. It differs from Additional Sales tax and surcharge since the Kerala Additional Sales Tax Act, 1978 and the Kerala Surcharge of Taxes Act, 1957 provides for an increase on the Kerala General Sales Tax by the rates prescribed thereon. Whereas turnover tax is charged on the amount of sales tax collected. Though such amount of sales tax collected is not the sales tax in the legal view, since the collection of sales tax is only collection of an amount equivalent to sales tax payable from the customers permitted by S.22 of the Kerala General Sales Tax Act, 1963. Hence in the pure legal eyes turnover tax on sales tax cannot be considered as tax on tax, but a tax on the amount collected from the customers equivalent to sales tax. Unlike Income tax on Sales tax payable, Wealth tax on Income tax payable, Sales tax on excise duty etc. turnover tax on sales taxis Sales tax on sales tax collected, since turnover tax under S.5(2A) is a branch of the sales tax. This tax on tax is protected by the fact that turnover tax is not levied on sales tax, but it is levied on the turnover which includes sales tax. Hence it is not double taxation. The Article 366 (29A) of the Constitution of India includes tax on the transfer of property in any goods in the definition of the word 'Tax on sale or purchase of goods 'in entry 54 of the list II of the 7th schedule. Hence tax on the turnover, which means consideration for transfer of property in any goods is constitutionally valid. Turnover tax on sales tax collected will appear prima facie as a tax on tax, which is un-ethical and unsocial. But in its deep legal sense it is a pure law in crystal clear. Still some one may ask: can tax be levied on sales tax?

A Comment on Section 17 of the Indian Divorce Act and the Division Bench Decision in 1999 (2) KLT 248

(By Tony George Kannanthanam, Advocate, Kochi)

Section 17 of the Indian Divorce Act says that a decree for dissolution of marriage passed by a District Judge has to be confirmed by a Full Bench of the High Court. This confirmation is applicable only to Christians and so it is arbitrary, discriminatory and violative of Art.13(1), 14and 15(1) of the Constitution of India as far as Christians are concerned. The Indian Divorce Act is an enacted personal law and so it has to comply with Art. 13(1) and Part III of the Constitution. The Indian Divorce Act came into force on 1.4.1869. It extends to India the main provisions of the Matrimonial Causes Act 185 7 and its amendments till 1866. The object of the Act is to place the Indian law on the same footing as the English Law of Divorce. The object of the above section is to enable the Full Bench to review the evidence and come to an independent conclusion by it. The requirements for confirmation was introduced only in India and it has no parallel in the English Law. The present law in England regarding Divorce is the Matrimonial Causes Act 1973. The Christian Community has been demanding for making appropriate changes in the Act for a long time. The Law Commission of India in its Fifteenth report in 1960 on law relating to marriage and divorce among Christians has said on page 40 para.79 that "we see no need for such provision". As per Art.13(1) all pre constitutional laws have to be consistent with Part III of the Constitution and to the extent it is not consistent it is void. S.17 is not consistent with Part III of the Constitution since it violates Arts.14, 15(1), 21 and 25 of the Constitution of India. Since it violates Arts.14, 15(1), 21 and 25 of the Constitution of India it violates Art.13(1) of the Constitution of India.

Since this Section and confirmation is applicable only to Christians it is discriminatory arbitrary, unreasonable, unfair and violative of Art.14 of the Constitution. The classification has not only to be reasonable but that reasonableness should have a nexus with the object sought to be achieved. Classification between Christians and others is not reasonable and the reason for this classification has no nexus with the object sought to be achieved by this classification. In effect this amounts to discrimination on the basis of religion and so is violative of Art.15(1) of the Constitution of India. Intention is immaterial in deciding the Constitutional validity. What matters in deciding the constitutional validity is the effect or consequence of the impugned section on the fundamental rights. The effect of this section is that it violates Art. 14, 15(1), 21 and 25 of the Constitution of India. Minimum six months has to elapse before a case is taken for confirmation before the Full Bench. The Full Bench may remand the case. If it is remanded then it will further lead to much delay. Parties can remarry only 6 months after confirmation. So parties have to wait for a long time and suffer in various ways during this period.

The near and dear ones of the parties are also forced to suffer because of this. This delay and suffering may effect even the looks of parties which will adversely affect their future marriage prospects especially that of females. This delay will adversely affect the right of the parties to start a fresh life. The parties will have to incur various types of expenses due to this confirmation proceedings. All this affects their right to live with dignity and right to decent life and right to life guaranteed under Art.21 of the Constitution of India and so is violative of Art.21 of the Constitution.

The precious time of High Courts are wasted unnecessarily due to this Section. This Section in effect violates the right to freedom of conscience and the right to freely practice religion because on the ground that one is a Christian one has to undergo the hardships, agonies and expenses of confirmation. None of the decisions relied on by the Division Bench in 1992 (2) KLT 248 is applicable. One of the decisions relied on by the Division Bench was AIR 1970 Mad 12. But the question considered in that case was entirely different. The question raised before the Division Bench was not even raised, considered and argued in the Madras case. Another decision relied on by the Division Bench was AIR 1950 Bom.84. That decision is not applicable because that decision did not consider whether enacted personal laws have to comply with Art.13(1).

In the above Bombay case the observation that personal laws will not come under Art.13 was made in reference to the Muslim Polygamy which is not an enacted personal law. The Full Bench of this Court in 1995 (1) KLT 644 had rejected the above Bombay decision and the contention that Indian Divorce Act is a Personal Law and so it will not come under Art.13 by holding that the above contention and Bombay decision will not apply to enacted personal laws. Another decision relied on by the above Division Bench was (1997) 3 SCC 573. That decision is also not applicable. The above decision of the Supreme Court did not specifically consider whether an enacted personal law has to comply with Art.13 and that question was not even argued or raised before the Apex Court. The Supreme Court in the above case was referring to non-enacted personal laws. None of the decisions referred to in the above Supreme Court decision has considered the question whether enacted personal law has to comply with Art.13. One of the decisions referred to in the above decision in AIR 1952 Bom.84 and that shows that the Supreme Court was referring only to non-enacted personal laws.

In the above Supreme Court judgment there is no discussion on the arguments made before it and none of the arguments made before it are mentioned and whether any arguments were at all made supporting the reliefs sought is also not traceable from the judgment.

The view of the Division Bench that this is a personal law and so Court cannot interfere is also not correct because this is an enacted personal law and it has to comply with Art.13 and has to be consistent with Part III of the Constitution, Even according to the Division Bench there is no justification for continuation of this procedure especially since it is applicable only to Christians and so the D.B. directed the State of Kerala to amend the law. When even according to the Division Bench there is no justification for continuation of this procedure especially since it applies only to Christians the D.B. ought to have held it as discriminatory, arbitrary, and vioaitive of Arts.14, 15(1) and 13(1) of the Constitution of India. Holding that there is no justification for continuation of this procedure especially since it applies only to Christians in effect amounts to holding that this procedure is arbitrary, discriminator and violative of Art.14 and 15(1) of the Constitution of India.

How long more the poor victims of this Section have to wait to get rid of this section and get it declared as ultra vires the Constitution and unconstitutional, discriminatory, arbitrary and violative of Arts.13(1), 14, 15(1) and 21 of the Constitution of India.

"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.