1991 (2) KLT143 - A Criticism

(By P.S. Vasavan Pillai, Advocate)

The Bench consisting of their Lordships Shri K.S. Paripoornan and Shri B.M. Thulasidas has held as reported in 1991 (2) KLT 143 (Joseph Binoy v. Union of India) that Article 134 A of the Constitution of India "does not contemplate the filing of a written application at all". According to Their Lordships certificate for appeal to the Supreme Court can be granted only on oral application made by the aggrieved party instantly on pronouncement of the judgment by the High Court or suo moto by the Court. True, some other Benches of other High Courts cited in the judgment also have ruled so. However, the Supreme Court has not looked into the question so far.

One thinks the decision requires a reappraisal.

Article 134A of the Constitution reads, "Certificate for appeal to the Supreme Court: Every High Court, passing or making a judgment, decree, final order or sentence referred to in clause (1) of Article 132 or clause (1) of Article 133 or clause (1) of Article 134,

a. may, if it deems fit so to do on its own motion; and

b. shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of Article 132 or clause (1) of Article 133 or as the case may be, sub-clause (c) of clause (1) of Article 134, may be given in respect of that case".

With due respect, I may state that Article 134 A or for that matter Art.132(1) or 133(1) or 134(1)(c) does not prohibit the grant of the certificate for appeal on a written application. 134A only enunciates that the certificate can be granted on oral application itself without encumbering the party with the necessity of a written application. It is an enabling provision, for an oral application and not a prohibitory provision against a written request. The need of the 44th Amendment by which Article 134A was incorporated arose because Articles 132(1), 133(1) and 134(1)(c) were silent about the oral application.

It does not stand to reason that if a certificate can be granted on an oral application, the same cannot be given on a written request.

The judgment refers to the book 'Constitution Amendment in India' which is only a publication of the Lok Sabha Secretariat and not a compendium of Lok Sabha debates on Amendments. However, even the extracted passage from that book does not preclude a written application.

The Honourable Court has also interpreted the word "immediately" in clause (b)of Article 134, A as to mean the moment just after the pronouncement of the judgment or order. This is too-restricted an interpretation, it is submitted. The word "immediately" can take in itself a few days. One need not mention that Constitutional Provisions require a wide interpretation.

If a party is entitled to get a certificate for appeal, it is not in the interest of justice to deny him that certificate solely on the ground that the application is made a few hours or days after the pronouncement of the judgment or order.

The concerned advocate may not make an oral request soon alter the pronouncement of the judgment or order or sentence because of several genuine reasons, one being the lack of timely instruction from the party. But that should riot come in the way of agitating an important point in the normal course.

'An aggrieved party can even orally apply for a certificate of appeal, the next moment after the pronouncement of the judgment, decree, order or sentence. But he can apply in writing in the immediate future also'. Only this line of interpretation would fully meet the ends of justice.

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.

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.

March of Law

Constitutional Law and Administrative Law

(K.S. Rajamony, Advocate, Ernakulam)

Even though Art.311(2) Second Proviso (b) gives power to the disciplinary authority to dispense with inquiry, if it is satisfied that it is not reasonably practicable to hold an inquiry, this power cannot be exercised arbitrarily and the reasons recorded . will be subjected to judicial review. Jaswant Singh (AIR 1991 SC 385) reiterates this principle. In this case, a police official was dismissed without a departmental inquiry invoking Art.311(2) second proviso (b). The reasons recorded for dispensing with the inquiry were "that he has thrown threats that he with the help of other police employees will not allow holding of any inquiry and they will not hesitate to cause physical injury to the witnesses and inquiry officer". The court found that there were no materials to support those allegations. The decision to dispense with the inquiry cannot be rested solely on the/ipse dixit of the authority concerned and the satisfaction must be based on objective facts, said the Court, in Tulsiram Patel (AIR 1985 S.C. 1416), members of the Industrial Security Force disobeyed orders and resorted to gherao and dharna, shouting threats of violence and bodily harm to the supervisory staff; railway employees struck work and resorted to intimidation and assault of superior officers and loyal workers calling for prompt and immediate action, the decision that the holding of an inquiry was impracticable was upheld. In Subramonian (1984 KLT1084), Kerala High Court pointed out that 'practicability' is not expediency. Public interest was held to be not relevant consideration. The possibility thatan inquiry may whip up feelings among the staff and will result in agitation affecting maintenance of essential services, inquiry will be delayed due to dilatory tactics and resort to go-slow, work-to-rule etc; affecting the running of trains and staff will not come forward to give evidence in view of their close comaraderie, were not considered by the Division Bench as good reasons within the meaning of proviso (b) to dispense with the inquiry. In Chief Security Officer (J.T. 1991 (5) S.C. 117) the ground for dispensing with the inquiry viz., that if witnesses appear, they will suffer personal humiliation and insults with danger even to their family members, was rejected and the punishment was quashed. In Satyavir Singh (AIR 1986 S.C. 555) the Supreme Court dealt with the case of the dismissal without inquiry of some employees of the RAW who indulged in gherao of their superiors, pen-down strike and making inflamatory speeches. Upholding the dismissal orders the Supreme Court said that where the disciplinary authority feels crucial and material evidence will not be available in an inquiry, because, the witnesses who could give such evidence are intimidated and the evidence available would only be peripheral which will render the inquiry a mere farce, the disciplinary authority would be justified in coming to the conclusion that an inquiry is not reasonably practicable. Sawant (AIR 1986 S.C. 617) is another case where the dismissal of a police constable without inquiry was upheld. Identical cyclostyled orders had been passed against 43 others also. This was pointed out as non-application of mind. The Court did not consider it as a vitiating factor because 'in case of collective coercive action of a group, it might not be possible to particularise the acts of each individual. Though prima facie the serving of cyclostyled orders would show non-application of mind, yet it -was not a universal rule and would depend on the fact situation of each case. In Tulsiram Patel also such a contention had been rejected. In Arjun Chaubey (AIR 1984 S.C. 1356), the charge levelled against the civil servant was that he had misbehaved with an officer. The same officer rejected the explanation and passed an order dispensing with the inquiry. The dismissal order was quashed as violative of natural justice because no one can be a judge in his own cause. However, in Ikrammuddin Ahamed Borah (AIR 1988 S.C. 2245), relying on Tulsiram the Supreme Court upheld the dismissal of a Police Sub Inspector without inquiry and said that it would not be reasonably practicable to hold an inquiry where witnesses are terrorised, threatened or intimidated and that in considering the relevancy of the reasons the court will not sit in judgment like a court of first appeal. If two views are possible the court will decline to interfere. On the material on record, the court did not find it possible to hold that there was an abuse of power. From the above decisions two principles emerge: (i) reasons must be recorded, (ii) they must stand an objective test and should not be irrelevant or tainted by mala fides or extraneous considerations. Tulsiram however said that the communication of reasons to the civil servant was not mandatory though the same was desirable to avoid the allegation that reasons were fabricated subsequently. This principle was applied in Bakshi Sardari Lal (AIR 1987 S.C. 2106) in which 18 police men were dismissed by invoking clause (c) of second proviso to Article 311(2). The court after a perusal of the original records held that reasons for dismissal had been recorded though not communicated and that was held to be enough.

In Union of India v. Mohd. Ramzan Khan (AIR 1991 S.C. 471), a three-judge Bench of the Supreme Court has removed the misconception that after the Forty-Second Amendment doing away with the opportunity of showing cause against the proposed punishment under Art.311(2), the delinquent has lost his right to be furnished a copy of the inquiry report. The practice of furnishing copies of the inquiry report, along with the order imposing punishment has been held to be illegal and violative of natural justice. The Court has categorically held that the deletion of the second opportunity has nothing to do with the duty to serve a copy of the inquiry report to the delinquent and that natural justice and fair procedure demand that the inquiry report must be furnished to him. He is not only entitled to a copy of such report but is also, entitled to make a representation against it and such representation has to be taken into consideration by the disciplinary authority not only on the question of guilt, but also in choosing the punishment. This is because, disciplinary proceeding is quasi-judicial and the ultimate decision of the disciplinary authority on the question of guilt and punishment will be influenced by the conclusions of the Inquiry Officer. Decisions of different High Courts and two-judge Benches of the Supreme Court lo the contrary have been held to be no longer good law. On the same principle advice of Public Service Commission, if any, received by the disciplinary authority has also to be furnished to the employee to enable him to make representation against it. This decision dated 20-11-1990 is given only prospective operation so that punishments imposed earlier will not be open to challenge on this ground. With respect, such an unusual direction was unnecessary. What about cases where punishment has been imposed, but the matter is pending in appeal, revision or review?

In Orissa Judicial Services Association v. State of Orissa (JT 1990 (4) S.C. 726 = AIR 1991 S.C. 382), members of the subordinate judicial service challenged direct recruitment of District Judges on two grounds: (i) It adversely affected their chances of promotion resulting in stagnation and frustration and (ii) Rule 7 of the Orissa Superior Judicial Service Rules, 1963 which confers power on the Government in consultation with the High Court to decide as to which vacancy shall be filled up by direct recruitment or promotion is arbitrary and unconstitutional. The first ground was rejected because Art.233 of the Constitution contemplated promotion from the subordinate judicial service as well as by direct recruitment from members of the bar. The Court pointed out that during the period 1961 to 1987 only 12 District Judges were appointed from the Bar while 100 posts were filled by promotion, over and above 10 ex-cadre posts. The grievance of stagnation was thus baseless and invited a caustic comment from the court that, "The members of the judicial service should not in our opinion indulge in this kind of frivolous litigation as it does not bring credit to the judicial administration". Upholding the validity of Rule 7 it was pointed out that by administrative orders a quota of 25% for direct recruitment and 75% for promotion had been fixed. Statutory rules can be supplemented by administrative instructions prescribing quota for the two sources of recruitment. The court however suggested that the provision for quota be made in the rules.

Kumari Shrilekha Vidyarthi v. State of U.P. (AIR 1991 SC 537) marks a welcome deviation from the conservative approach in interfering with State action in contractual matters. Setting aside the en-masse termination of appointments of all Government Counsels in U.P., a two-judge Bench of the Supreme Court held that the power of judicial review is available even in the sphere of contractual matters governed by private law principles. The test of Art.14 has to be satisfied even where rights and obligations flow from a contract. All actions of the State are meant for public good and must be fair and just in any sphere of its activity. This is more so when the modern trend is to examine the unreasonableness of a term in contracts with Government where the bargaining power is unequal and are contained in standard forms. A contract entered into by the State or its instrumentality is no longer a mere private activity scrutiny liable to be tested on the touch stone of Art.14. This decision partially overrules some of the propositions laid down in Geetha Timbers v. State of Kerala (1990 (1) KLT 401 (F.B.) and Joy v. Superintending Engineer (1990 (2) KLT 146) because it will not now be correct to say that if the contract by the State is non-statutory, the rights are not governed by Constitutional provision, but only by the contractual terms. It has however to be mentioned that Kumari Shrilekha has not noticed a somewhat contrary view taken by another Two-Judge Bench decision in Bareilly Development Authority v. Ajai Pal (AIR 1989 SC 1076) and an earlier Five-Judge Bench decision in Har Shankar v. Deputy Commissioner (AIR 1975 SC1121). A precise restatement of the law by a larger bench is required when an appropriate case arises.

In Nally Bharat Engg. Co. v. Bihar (JT 1990 (2) SC 96), a Government order transferring a case from one Labour Court to another on the representation of the workman without notice to the management was quashed as violative of natural justice. It is laid down in this case that even where natural justice is dispensed with in a Statute, courts will ensure administrative justice by applying the test of fairness and fair play in action. Existence of reasonable grounds and application of mind have been held to be essential ingredients of fair procedure.

The evolution of the concept of natural justice in India is indeed fascinating. In the 1950s the quest of the courts was mostly to identify judicial, quasi-judicial and administrative actions and to find out in which types of functions, the administrative authority had a duty to act judicially and apply the principles of natural justice. In the 1960s the concept was becoming increasingly expansive. Objective standards began to be applied and civil consequences visiting on the subject became relevant considerations. Ridge v. Baldwin (1964 AC 40) inspired a number of judgments where the necessity to follow a judicial procedure with consequent application of the principles of natural justice was inferred from the facts and circumstances of each case which were held to be the best guide to show whether a man had been condemned or not and whether grave consequences accrued or not. The next stage was ushered in by Dr. (Miss) Bina Pani Dei (AIR 1967 SC 1269) wherein the Supreme Court emphatically asserted that even an administrative order has to be made consistently with the rules of natural justice. The 1970s were heralded by A.K. Kraipak (AIR 1970 SC 150) which laid down tersely that the requirement of acting judicially is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously and that the principles of natural justice apply to the exercise of administrative power as well. However, the same Judge, Hegde, J. observed in J.N. Sinha (AIR 1971 SC 40) that rules of natural justice can operate only in areas where statutory provisions do not exclude expressly or by necessary implication the application of the rules. The 1980s are dominated by Maneka Gandhi (AIR 1978 SC 597) which held that the principles of reasonableness is an essential ingredient of equality and that even though there are no positive words in the Statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The inquiry must always be: does fairness in action demand that an opportunity to be heard should be given to the person affected? Now the last decade of the 20th century has commenced with the proposition that even when a statute specifically takes away the principles of natural justice, courts will fill the omission by the test of fairness and fair play in action.

Charan Lal Sahu v. U.O.I. (AIR 1990 SC 1480), where the Supreme Court upheld the Constitutional validity of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, is another case where the importance of the audi alteram partem was reiterated as a rule to ensure just decisions and providing a healthy check on abuse of power. It was emphasised in Charan Lal that non-observance of natural justice is itself prejudice and no further proof of prejudice is necessary.

Subhash Sharma v. Union of India (AIR 1991 SC 631) is a case where the Supreme Court Advocates on Record Association, the Bombay Bar Association and an Advocate filed applications under Art.32 by way of Public Interest Litigation for mandamus to the Union of India to fill up vacancies of Judges in the Supreme Court and High Courts. Several interlocutory directions resulted in the filling up of vacancies to a considerable extent. The case, however, contains an illuminating discussion on the v problems facing the Indian Judiciary particularly the heavy back log of cases. The Three-Judge Bench including the Chief Justice presents a number of suggestions such a s the need to treat administration of justice as a plan subject, increasing the Judge strength (the court disapproved the reduction of the sanctioned strength of the Kerala High Court from 24 to 22), the need to complete the selection process of a judge within three to four months and to initiate the process 6 months in advance of the vacancy and the need for a rule or policy that recommendations finalised by the C.J.I., should not be re-opened on a mere change of the Chief Justice or a Chief Minister. The Court observed that the view of the majority in S.P. Gupta's (AIR 1982 SC 149) case denuded the primacy of the Chief Justice in the consultative process and whittled down the significance of consultation envisaged by the constitutional scheme and context. The executive sending up proposals directly to the centre without reference to the C.J. of the State is wholly impermissible, said the court. The court observed that the views of the C.J. of the States and the C.J.I., should be given a decisive import. "Who is able to decide the qualities of Lawyers proposed to be elevated to the Bench more than the Judges of the Courts before whom they practice?", asked the learned Judge. This Three-Judge Bench referred the matter to the Chief Justice for constituting a Bench of nine judges to examine the correctness of the opinion of the majority in S.P. Gupta's case relating to the status and importance of consultation, the primacy of the position of the C.J.I., and the view that fixation of judge strength is not justifiable.

When can an administrative authority be said to be biased? The principles have been reiterated in Hindustan Petroleum Corporation v. Yaswant (JT 1991 (1) SC 38). Merely because the competent authority to determine compensation is an employee of the Corporation, it cannot be said that he will have a bias in deciding the issue. However, in view of litigations pending between the competent authority and the land owner, apprehension of bias was held to be well founded. Quoting Metropolitan Properties Co. (1968 (3) All. E.R. 304) the Supreme Court emphasised that justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking: 'the judge was biased'.

Subhash Kumar (JT 1991 (1) SC 77) is a shocking illustration of how unscrupulous litigants can abuse Public Interest Litigation and demonstrates how, if the veil is lifted, one can discover private interest litigation masquerading as Public Interest Litigation. This is a case where a frustrated contractor who failed to get more and more quantities of slurry from a certain collieries ventured to gain his personal interest by launching a Public Interest Litigation to stop discharge of slurry into the Bocarrow river on the ground of water pollution. The facts alleged by him were totally false and highly motivated. The petition was dismissed with costs of Rs.5000/-, Rugmani v. C. Achutha Menon (JT 1991 (1) SC 265) is yet another case where the court held that Public Interest Litigation should not have been invoked on the mere ground that a Municipality did not get an interim stay vacated. Setting aside the Kerala High Court's judgment, the Supreme Court made the comment "the High Court appears to have been swayed in the wave of Public Interest Litigation". In C.P. M.S. Samiti v. U.P. (AIR 1990 S.C. 2060) the Supreme Court came down heavily on a Public Interest Litigation petitioner whose allegations regarding environmental pollution were found to be the result of a long .history of enmity and hostility. The court gave the warning that the court should deal with Public Interest Litigation with a great deal of circumspection and caution and protect society from the so-called' protectors'.

These are however stray cases of abuse and constitute exceptions. By and large this new jurisdiction is being used effectively by public spirited citizens, the lawyer and an activist judiciary. M.C. Mehtha who is a crusader for good causes is an example. AIR 1991 S.C. 417 is a case where M.C. Mehtha brought the problem of employment of children in match factories of Sivakasi before the Supreme Court. The court gave several directions for the welfare of children and appointed a local committee insisting of the concerned District Judge, District Magistrate and a public activist to oversee the court's directions and also awarded Rs.3000/- to M.C. Mehtha for his expenses to be paid by the Government of Tamil Nadu.

Sachidanand Pandey (AIR 1987 S.C. 1109) and Rural Litigation Kendra (AIR 1987 S.C. 2426) are two cases which show the self-imposed limitations put by the Court on the exercise of Public Interest Litigation jurisdiction. In the first case, two citizens, one of them the Secretary of a trade union of workers of the Zoological garden and the other a life member of the Calcutta Zoo challenged the transfer of four acres of the zoo to the Taj Group of Hotels for i he Construction of a five star Hotel on the ground that it will lead to environmental degradation. The contentions were not countenanced. In the second case the court ordered the closure of some of the lime stone quarries for up-setting ecological balance. In Dahanu Taluka Environment Protection Group (J.T. 1991 (2)S.C. l)it was reaffirmed that when public projects are objected to as endangering ecological balance, the court's role is restricted to see whether Govt., has taken into account all relevant aspects and has not been influenced by extraneous considerations. Even though there are occasionally judicial warnings that proper guidelines should be laid down for PIL cases, there is a massive inflow of PIL cases of diverse varieties which demonstrates a widespread societal belief that the judicial process is capable of proving to be a panacea for all kinds of public miseries. Since most of the genuine PIL cases impinge onArt.21, it is hoped that the judiciary will fulfil the public expectations to the extent possible in this expansive jurisdiction.

What are the limits of judicial power to review the policy options of administrative authorities? When can a development scheme be attacked as unreasonable and hence violative of Art.12? These questions are discussed in Mahajan v. Jalgon Municipal Council (J.T. 1991 (1) S.C. 605). It was held that courts will not interfere in matters of economic policy unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This is recognition of the administrator's right to trial and error as long as it is bona fide and within the limits of authority. The administrative law test of reasonableness is not the court's own standard of reasonableness as it might conceive it in a given situation. A thing is not unreasonable in the legal sense merely because the court thinks it is unwise. Reasonableness in the4egal sense would require judicial scrutiny as to whether there has been abuse of power, whether ii is a decision to which no reasonable authority could have come (what is commonly called 'Wednesbury unreasonableness'), whether irrelevant matters are taken into consideration and the relevant eschewed, whether any rule has been violated, whether the act is in bad faith or for an improper motive etc.

In R.S. Dass (AIR 1987 S.C. 593), K.N. Singh, J. has relied on a rather an annoying unconvincing proposition that when power is exercised by high ranking and responsible officer, there will be a presumption that he will act in a fair and impartial manner. Sabyasachi Mukharji, J. however pointed out that there has been considerable erosion in the intrinsic sense of fairness and justice in senior officers. It is surprising that K.N. Singh, J. should have relied on such an unrealistic proposition because nobody knows better than the Judges about corruption in high places. Let every issue be judged on its merits without such fanciful presumptions.

In Parma Nanda (AIR 1989S.C. 1185),it has been ruled that what punishment would meet the ends of justice is exclusively within the jurisdiction of the disciplinary authority and that the adequacy of penalty, unless it is mala fide, is not for the High Court or the Central Administrative Tribunal. The only exception is where a person is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court as provided in Clause (a) of the second proviso to Article 311(2). With respect, it is submitted that such rigid formulation fettering the Tribunal's power may result in failure of justice. Justice will not be miscarried if power to interfere with penalty is conceded to the Tribunal in cases where the penalty is so disproportionate as to shock the conscience and so arbitrary as to be violative of Art.14. While reserving the right to interfere with the finding of guilt and punishment to itself under Art.136 as in Bhagat Ram (AIR 1983 S.C. 454), the Supreme Court has not conceded the right to the High Court and the Tribunal. This will work serious injustice, because the employee in such appropriate cases has to indulge in the costly and time-consuming exercise of the writ proceeding in the High Court to reach the Supreme Court to get justice. There is no reason why there should be such a total bar of jurisdiction on the High Court and the Tribunal. A court of law is the best forum to adjudicate the civil servant's rights and is characterised by openness, fairness and impartiality as a result of long tradition. Executive justice must always be controlled by judicial justice. In any case, the presence of the Administrative Member along with a Judicial Member in the composition of the Tribunal justifies conceding power to the Tribunal to intervene in the matter of punishment and in the conclusion of guilt.

Regarding the Supreme Court's power to interfere with the punishment, the court said, "this court exercised the equitable jurisdiction under Art.136 and the High Court or Tribunal has no such power or jurisdiction". In the first place, there is no mention of 'equity' in Art. 136. Secondly, if there is equitable jurisdiction under Art.136, it is equally available under Art.226 also. Under the system of jurisprudence we have inherited from the British, our superior courts administer both law and equity. Even assuming that only legality and not merits can be gone into by the High Court, that cannot be said of the Administrative Tribunals created under Art.323A of the Constitution. If it is laid down that the Administrative Tribunal like the High Court can examine only the legality and not the merits, then the very purpose of creation of the Administrative Tribunal and the inclusion of an Administrative Member in its composition will fail in the objective of correcting administrative injustice by an independent body which takes care of both merits and legality. Parma Nand therefore requires reconsideration.