Why Hear the Accused on the Question of Sentence?

*(By M. Marcus, B.A., M.L., Advocate, Ernakulam)

In life many things are taken for granted but in law we should be reluctant to do so lest we are led astray from the path of law.S.235(2) Code of Criminal Procedure 1973 is an instance of it since the legislative draftmanship of it militates against certain fundamental concepts in criminal jurisprudence for the reason that as it stands the section does not take note of the change in the status of person who is tried for an offence. The sub section under consideration reads as under:-

"IF THE ACCUSED IS CONVICTED, THE JUDGE SHALL UNLESS HE PROCEEDS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 360 HEAR THE ACCUSED ON THE QUESTION OF SENTENCE, AND THEN PASS SENTENCE ON HIM ACCORDING TO LAW".

It can be safely said that at least three distinct words known to criminal jurisprudence indicate the various stages in law of a person subject to criminal proceedings. In the first stage he is under suspicion by the authorities of law touching his complicity in the criminal act and is known as 'SUSPECT'. The second stage refers him as the 'ACCUSED' and the third stage is reached when after examining the evidence of the prosecution and considering the defence the court comes to the conclusion that he is guilty. In other words the court finds him guilty of the offence charged against him in the trial. When this stage is reached the hitherto accused becomes a 'CONVICT' in the language of the law.

It is on the convicted person or the 'Convict' that punishment is to be imposed. That part of the judgment which indicates the punishment is called 'sentence' in law. The passing of a sentence is of sufficient significance touching the liberty and sometimes">iie life of the convict and that is why the protection of a fair trial is envisaged in our criminal justice system. The caution with which one should embark upon the administration of criminal justice is well said by Manu the ancient law giver in India which deserves to be quoted in extenso:-

"AS A HUNTER TRACKS A WOUNDED BEAST

TO ITS LIER BY ITS DROPS OF BLOOD

SO LET A KING TRACE CRIME TO JUSTICE

BY CLOSE SEARCHED PROOF"

I feel that this is the best piece of advice that can be given to any person enjoined by law to administer criminal justice. It stresses the importance of proof of guilt. The proof of guilt takes place usually by the trial of the accused. It may be noted in this connection that the words 'suspect', 'accused', or 'convict' are not defined in the Code of Criminal Procedure in India, so is the fate of the word 'sentence' and we have to look to the English law to get at the import of these terms. The word 'suspect' points to a person around whom some suspicion lingers of his complicity in a criminal offence. Touching the nature of suspicion Lord Bacon said "Suspicion is like bats among birds" which is indicative of the less pleasant feature of it. The law is aware of the elusive nature of suspicion so it requires that suspicion should be "reasonable" or there should be reasonable grounds for the suspicion. Still the law says that suspicion by itself cannot be a ground to punish a person for a crime alleged to have been committed by him that is why it is said "Suspicion howsoever grave is not a substitute for proof.

We now come to the concept of an 'Accused'. The Lexicon Webster Dictionary (Encyclopadic Edn.) Vol. 1 at p. 8 explains the import of the term 'Accused' reading:

"A PERSON OR PERSONS CHARGED WITH A CRIME -- A DEFENDANT IN A COURT OF LAW". Stroud's judicial Dictionary Vol. 1.1971 Edn.onP.311 says "to accuse or threaten to accuse of a crime was not restricted to the narrow meaning of accusing by the course of law but meant to allege or threaten to allege before any third person". In the legal literature we do not find a final and single statement as to when a person is said to be an 'accused' for the purpose of criminal law. One view is that the person in the dock at the commencement of the trial is the "accused person". Here the person becomes an accused when he is before the judge in the open court. Another view is of Sir Patrick Devlin in his work 'Criminal Prosecution in England' on P.28 which would say that whenever evidence in the possession of the Police is weighty enough to frame a charge it is the point of time that a suspect turns to be an accused. Despite these various shades of meaning it is certain for the purpose of criminal law that a person can be an accused in criminal proceedings till he is found guilty after which his status changes and he is known as a'Convict'. To put it shortly the status being an accused is antecedent to conviction but the status of being a convict is post decisional one. The word 'Convict' is explained at page 223 of the Lexicon Webster Dictionary mentioned above meaning" to prove or find guilty of an of fence especially after trial before a legal tribunal. Stroud's Judicial Dictionary at page 558 mentions that the word 'Convicted' or 'Conviction' of a person accused is equivocal. It is further said that in common parlance no doubt it is taken to mean the verdict at the time of trial but in strict legal sense is used to denote the judgment of a court. It was so held by Tindel C.J. in Burgess v. Boetifeur, 13 L.J.M.C. 126. The person who has reached this post decisional stage in a criminal court is called a 'Convict' and it is the 'Convict' on whom the 'Sentence' is to be passed. Bouvier's Law Dictionary Vol.1 p.56 gives the meaning Accusation in criminal Law as a charge made to a competent officer against one who has committed a crime or misdeameanor so that he may be brought to justice and punishment. On page 362 the word 'convict' is explained as one who has been condemned by a competent authority which further says that to condemn is to find guilty of a crime or misdemeanor.

The word 'Sentence' in Law is derived from the Latin expression 'Sentire' which means 'feeling'. The sentence of court is the declaration of the punishment to be inflicted upon the convict. The aspect of the feeling of the judges is clear when we read in judgments "We feel that the lesser sentence will meet the ends of justice" found in certain decisions reported. Stroud's Judicial Dictionary mentions that sentence includes any order of the court made on conviction (emphasis by me).

Christopher J. Emmins. M.A. Senior Lecturer in Law at the Inns of Court School of Law in his work "A practical approach to sentencing" in his introduction observes "sentencing is about the way courts deal with a person after he has pleaded guilty or been found guilty -in other words is about what happens from the moment when a person charged with an offence ceases to be merely "the accused" and becomes an offender". In part one of the book, page -15 "That ominous phrase the sentence of the Court is so familiar to us that we rarely pause to ask just what we mean by the word sentence".

In the light of what has been mentioned above there cannot be any manner of doubt that sub-section (2) of S.235 Code of Criminal Procedure 1973 is ill phrased for the reason that it directs the court to hear the "Accused" on the question of sentence. The proper thing would have been to say that the judge shall hear the 'Convict' on the question of sentence since the question of sentence or hearing on it arises only after conviction and that is why the section says "if the accused is convicted", in its opening part. Unfortunately the word 'Accused' is replanted in the section even after the word "convicted" whereby the legislative draftsman committed error of law by not distinguishing between an accused and a convict. It is felt that the present anomaly in the section can be removed if instead of the expression hear the "accused" on the question of sentence the expression hear the CONVICT on the question of sentence is used by necessary amendment to the section.

Foot Note

*Formerly Prof: of Law, Govt. Law College, Kerala, Reader in Law, Lai Bahadur Sastri National Academy of Administration, Govt., of India, Mussorie (U.P.)

March of Law

(K.S. Rajamony, Senior Advocate, Ernakulam)

CIVIL LAW

Scariah Varghese v. Marykutty, (1991 (2) KLT 71) raises some fundamental jurisprudential problems. Notwithstanding the absence of any statute law obliging a Christian to maintain his minor children, Varghese Kalliath, J. has held that he has a legal obligation to provide maintenance for his minor children on the ground of justice, equity and good conscience. It is submitted that this is a correct decision despite the thought provoking critical comment on the decision in 1991 (2) KLT Journal 40 by Sri. V.K. Sathyavan Nair. This decision has an interesting background. In Chacko Daniel (1952 KLT 595) Koshi C.J. and Govinda Pillai, J. held that the personal law relating to Christians in Travancore does not make a father legally liable to maintain his children and that no civil court can give them relief. The only remedy is to resort to the provisions of the Cr. P.C. This was a very unsatisfactory judgment. The Court said that the law that should be applied was English Law and conceded that under English Law the father had a duty to maintain and educate his children, but wrongly accepted the English Common Law principle that the civil court cannot enforce the obligation. In India if there is a civil right, it can always be enforced through a suit in the civil court under S.9 C.P.C. In fact, even a statutory right can be spelt out of S.125 Cr. P.C. (old S.488) which has two limbs, one conferring the substantive right of maintenance and the other the procedure to enforce the claim. It is incorporated in the Cr. P.C. only for providing a speedy and inexpensive relief which does not preclude enforcing the right through the civil court. The question again arose before a Full Bench consisting of Koshi C.J. and Subramonia Iyer and Joseph Vithayathil JJ. in Cheriya Varkey (AIR 1955 T.C. 255). Eventhough in the appeal the right to maintenance of the wife and child came up, unfortunately, counsel gave up the right for the child in view of the decision in 1952 KLT 595 and pressed the right of the wife alone. Thus the correctness of 1952 KLT 595 did not in terms come up for consideration. The Full Bench speaking through Vithayathil, J. held that in matters not governed by statute or customary law, principles of justice, equity and good conscience applied and those principles could be found in the Common Law of England, that even under the Common Law the husband had a legal obligation to maintain his wife, that the husband's obligation is in no way different from that applicable to Hindus and that marriage created a status with certain obligations attached to it and one of such obligations was to maintain his wife. It is not difficult to see that all these principles apply with equal force to the child's right to maintenance also even though the right of the child as such was not gone into by the Full Bench. The question of the child's right collaterally arose later before a Full Bench consisting of P. Govindan Nair, T.S. Krishnamoorthy Iyer and M.U. Issac, JJ. in Commissioner of I. T. v. Paily Pillai (1972 KLT 24). The question involved was one of tax liability and the problem was whether a gift deed executed by the assessee in favour of his minor son .was a transfer otherwise than for adequate consideration. The Full Bench held that the transfer was only in the nature of a gift because, there was no legal obligation on the part of the Christian father to maintain his minor child and for this conclusion 1952 KLT 595 was relied on. AIR 1955 T.C. 255 was not referred to and the correctness of 1952 KLT 595 had not been canvassed in Paily Pillai's case. In the above circumstances Varghese Kalliath, J. rightly adopted the principles laid down in AIR 1955 T.C. 255. See State of U.P. v. Synthetics & Chemicals Ltd. (J.T. 1991 (3) SC 268) for a discussion on the doctrine of precedents. The decision to grant maintenance to the child can be supported on other grounds also. Art.51A (a) of the Constitution lays down that it shall be the Fundamental Duty of every citizen to abide by the Constitution and respect its ideals. Art.29(f) embodies the Directive Principles that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and material abandonment. Art.21 guarantees the right to life and livelihood. Courts have not unoften recognised new heads of public policy to prevent vacuums in the legal system. Indian Legal System is based on justice, equality and good conscience. See AIR 1991 SC 2234. Did not the Supreme Court in the Central Inland Water Transport Corporation Case (AIR 1986 SC 1571) strike down an unconscionable service rule on the theory of inequality of bargaining power? The Court said (at p.1612), "In deciding any case which may not be covered by authority, our courts have before them the beacon light of the preamble to the constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our constitution." Similarly, did not the Supreme Court evolve the new theory of ‘distributive justice’ in Lingappa (AIR 1985 SC 389)? It is interesting to note in this connection that in France, the civil code has a specific provision that a judge cannot refuse to decide a controversy on the ground that there is no law on the subject. Anyway, such serious gaps in personal law point to the urgent need for a uniform civil code for the Indian people as envisaged in Art.14 of the Constitution.

The newly enacted S.138 in the Negotiable Instruments Act which has come into force w.e.f.1.4.1989 is giving rise to interesting problems. A Division bench in Manoj K. Seth (1991 (2) KLT 65) has held that a post-dated cheque has to be considered to have been drawn on the date it bears and not on the date it is delivered. The question was whether the cheque was presented within six months from the date on which the cheque was drawn as required by the proviso (a) to S.138. The reason given is that a postdated cheque becomes operative only from the date it bears, though in between the date of delivery and the date it bears, it is negotiable. The judgment is deficient in two respects. In the first place, the impact of S.118(b) of the Negotiable Instruments Act providing that, until the contrary is proved, it will be presumed that every negotiable instrument bearing a date was made or drawn on such date, has not been examined though a passing mention of that section is made. Secondly, even though the Bench has rightly disagreed with the view taken by the Madras High Court in Babu Xavier's case (1990 TNLJ (Crl) 121) in fairness reasons should have been given for the disagreement. Was it not necessary to give an opportunity to the drawer to adduce evidence contrary to the presumption, if he had any?

In a judgment of excessive brevity, Thulasidas, J. held in Calcutta Sanitary Wares (1991 (1) KLT 269) without stating any reasons that where the non-payment by the bank was on account of the drawer issuing stop-payment instruction, prosecution under S.138 is nevertheless maintainable. With respect, this does not appear to be correct in terms of S.138 which makes bouncing of the cheque an offence only for insufficiency of funds in the bank. A judgment of the Karnataka High Court reported in 1991(1) KLT SN37 and another by the Punjab & Haryana High Court reported in 1991 (1) KLT SN 40 have rightly taken the view that if a cheque is returned unpaid with the remark "payment stopped", S.138 is not attracted.

Rightly overruling 1991(1) KLT 651 a Division Bench has held in 1991(1) KLT 893 that the payee cannot go on presenting the cheque in the bank again and again to create fresh causes of action for proceeding under S.138.

In Dunlop India Ltd. (1991(1) Civil L.J. 29), the Calcutta High Court held, following 1989 (2) SC. 602, that when a registered postal cover is returned With the endorsement "refused" there will be a "resumption that the letter was tendered to the addressee. The Court relied on S.27 of the General Clauses Act and S.114(f) of the Evidence Act. Mere denial of service by the addressee is not sufficient to rebut the presumption. Similarly, in Jankala Raghunath Patra (1991 (1) Civil L.J. 215) - the Orissa High Court held, following AIR 1989 SC 630 that when a notice sent by registered post at the correct address was returned with the endorsement that the postman visited the place of address several times but found the addressee absent, the letter shall be deemed to have been delivered to the addressee. When the registered letter containing a notice under S.106 of the T.P. Act was returned with an endorsement as above, it was treated as sufficient compliance with the requirement of S.106. The time of 15 days given in the notice would be calculated from the date of the return of the envelope.

Padmanabhan, J. has held in Kunhiraman v. Manoj 1991 (2) KLT 190 that the result of DNA test can lend strong support to other evidence in deciding paternity. The DNA test is of far-reaching importance in both civil and criminal law. This new technique has created a revolution in forensic science. The scientific community, however, is not yet agreed on standards that ensure the reliability of DNA finger printing which is still on trial. The DNA technique demonstrates how the two sister disciplines of law and medicine can interact in delivering justice. The only regret is that evethough legislation has advanced to give relief to the illegitimate child, it has not progressed enough to award maintenance to the mother of the child by the putative father. There are a large number of similar issues which are on the border land of law and medicine. Spare parts of human beings are now on sale. Does a man have the right to sell his kidney? Does his body belong to him? Has he the right to destroy his body part by part when criminal law has made suicide, prostitution etc. offences? To whom does the dead body belong and can organs be removed from a dead body? When can a person be considered to be dead? If it is possible to bring back life by techniques like massaging, and use of heart-lung machines, whether transplantation can he done in the meantime? There is a story of a Professor of Surgery who while performing an operation observed that the patient was not breathing. He asked the anesthetist, "the patient seems to be dead at my end, how is the position at your end?" Matters of common interest between law and medicine should be identified and explored, because, everyone of such issues has social dimensions.

Is a petition under Art.227 against the revisional order of the District Judge under the Rent Control Act a continuation of the rent control proceedings? No, says Padmanabhan, J. in Krishna (1991 (2) KLT316). It is an original proceeding and hence the tenant cannot claim the benefit of depositing arrears of rent under S.11(2)(c) as a matter of legal right. However, a Division Bench consisting of Bhat Ag. C.J., and Krishnamoorthy, J. has held, though in a different context, that Art.227 is not an original proceeding and hence a Writ Appeal does not lie under S.5 of the High Court Act against the decision of a Single Judge exercising powers under Art.227 following AIR 1986 SC1272. This conflict may have to be resolved in an appropriate case.

Where there is a direct conflict between two decisions of the Supreme Court rendered by Judges of equal strength, which of them should be followed by the High Court? Full Benches of three High Courts have held that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. It is not correct to say that the latest judgment must be mechanically followed. The three decisions are AIR 1981 P. and H. 213, AIR 1988 Bom. 9 and AIR 1991 All. 114. The Allahabad Full Bench further held that a writ petition under Art.226 can lie against an interlocutory order passed in a civil suit from which there is no appeal or revision, if it is found that the impugned order violates fundamental principles of law and causes substantial injustice to the aggrieved party, subject of course to the well-established principles of writ jurisdiction. Under S.115 C.P.C.as amended in Allahabad, no revision lies to the High Court against an appellate order made by the District Judge in suits of less than Rs.20,000/- valuation. According to the Full bench, a writ will lie against the District Judge's Appellate order. The Full Bench however dismissed the writ petition as the opposite party was a private individual.

East India Corporation v. Shree Meenakshi Mills (JT. 1991 (2) SC. 397) presents a hard case, but makes good law. There was a provision in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by which a residential building occupied by a tenant on a monthly rent exceeding Rs.400/- was excluded from the operation of the Act. Since the monthly rent was Rs.900/- the landlord filed the suit in 1980 in the Civil Court for eviction and obtained a decree. When the Appellate Court and the High Court confirmed the decree, the tenant filed an Appeal before the Supreme Court and Special Leave was granted on 24.9.1984. While the appeal was pending, that provision of the Tamil Nadu Act was struck down as unconstitutional by the Supreme Court in AIR 1986 SC 1444. The result of the declaration was as though that provision had never been enacted and the jurisdiction to order eviction rested exclusively in the Rent Control Court. The civil court decree therefore became null and void. Jurisdictional defects cannot be cured by consent of parties. S.10 of the Tamil Nadu Rent Control Act (corresponding to S.11(l) of the Kerala Rent Control Act) prohibits eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that Act. The jurisdiction of the Civil Court though not expressly barred, is impliedly barred on the principles stated in Dhulabhai's case (AIR 1969 SC 78). The Supreme Court held that, with the declaration of invalidity of the section, the Civil Court had become coram non judice and its proceedings resulting in the decree had become a nullity. The appeal was allowed and the decrees of the Courts below were set aside. The Kerala High Court had been holding consistently that S.11(l) of the Rent Control Act does not affect the jurisdiction of the civil court to pass a decree for eviction, but only prohibits the execution of the decree. The only exception was a decision by Kochu Thommen, J. as he then was, in Narayanan v. Ratnamma (1987 (2) KLT 473) which stood overruled by the Division Bench in Gaurikutty Amma v. Kesavan (1988 (1) KLT 649) which in turn now stands overruled in the East India Corporation case by T. Kochuthommen and Sahai, JJ.

Can a court which has no jurisdiction be conferred with jurisdiction by applying the principle of res judicata? No, answers the Supreme Court in Isabella Johnson (AIR 1991 SC 993). There can be no estoppel on a pure question of law. The landlord filed a petition for eviction before the Rent Controller. The tenant contended that the jurisdiction vested in the civil court and not in the Rent Controller. On that plea the petition was rejected. The landlord then filed a suit in the civil court. Now the tenant contended that the civil court had no jurisdiction and that it vested in the Rent Controller. The landlord contended that the earlier decision of the Rent Controller constituted res judicata even if that decision was wrong and that such an inconsistent plea was barred by estoppel. Differing from an earlier two judge-bench decision in AIR 1979 SC 1911, that three-judge bench held that the civil court had no jurisdiction and it cannot be conferred by the principle of res judicata or estoppels.

In General Electrical Technical Services Co. v. Punj Sons (P) Ltd. (JT1991 (3) SC 360) the Supreme Court has reaffirmed the principle that Banks must pay when demand is made for the enforcement of a Bank Guarantee. Courts should not interfere with this contractual obligation except when there is strong prima facie case of fraud by the beneficiary and to prevent irretrievable injustice. Otherwise, the very purpose of Bank Guarantees would be negatived and the fabric of trading operations will get jeopardised. Stay against-Bank, granted by the High Court, was vacated.

Gauhati High Court has pointed out in 1991 (1) Civil L.J. 771 that mere registration of a document is not by itself sufficient proof of its execution. Endorsement by the Sub Registrar is not conclusive proof of the fact of execution. There must be clear evidence that it was the purported seller who put his signature and after fully knowing its contents. That is the requirement of S.67 of the Evidence Act.

The Supreme Court has held in Shanti Devi L. Singh (1991 (1) Civil L.J. 95) that the certificate of sale issued in a court sale or by a Revenue officer does not need registration. Certificate issued by the Tax Recovery Officer under the I.T. Act is also covered by this principle contained in S.17(2)(xii) of the Registration Act. Under S.89(2) every court granting a certificate of sale shall send a copy to the Registering Officer. S.89(4) imposes a similar obligation on 'Revenue Officer' which expression includes 'Tax Recovery Officer'. The Registering Officer shall file the copy in his Book No.1. However, the certificate of sale is not exempted from the levy of stamp duty.

In Durga Singh (AIR 1991 H.P. 1) a Division Bench has held that a compromise decree passed on the basis of statement made by Government Pleader without complying with the requirements of Art.299 is invalid. P.C. Balakrishna Menon, C.J. has pointed out that an adjustment of the suit under O.23 R.3 C.P.C. can only be by a lawful agreement or compromise and that in the absence of an agreement in terms of Art.299(l) of the Constitution, there was no valid compromise and the decree passed on it cannot be enforced.

Patasibai (JT1990 (3) SC 68) is a case where the plaint was rejected invoking O.VII R.11 C.P.C. as it did not disclose any cause of action. Even after issue of summons the provision can be applied if there is no triable issue. Order VII Rule 11 is frequently invoked to get election petitions which do not disclose any cause of action dismissed. Trial lawyers can usefully invoke O.VI R.16 and O.VII R.11 C.P.C. to weed out frivolous cases.

In Mary Soniz Zachariah (1990 (1) KLT 130) Thomas, J. directed the Central Government to take a decision within 6 months of the receipt of judgment, on the recommendation of the law commission to make necessary amendments to S.10 of the Indian Divorce Act. It is not known whether the direction has been implemented.

In Kunhi Kelu (1990 (2) KLT 506) a Division Bench held that a revision under S.20 of the Rent Control Act has to be heard by a Division Bench as required under S.3(4) of the High Court Act and suggested appropriate amendments to enable a single Judge to hear the revision petitions. Government does not appear to have bestowed any thought on the problem yet.

The Dawning Year

(Siby Mathew, Advocate, Ernakulam)

"Each dawning year beholds us blithely rise

With new-fledged hopes to face the future bent,

Each dying year finds us without the prize"

The advent of every New Year is hailed all over the World with feelings of joy coupled with a prayerful wish that the incoming year would bring happiness and prosperity. No tear is, however, shed over the expiring year. "The year is going, let him go" said Tennyson. And as if to give a parting kick, the poet sang. "Ring out the old, ring in the New". In the eternal calendar, one more year passes yielding place to the New Year with cherished hopes and prospects.

It is wishful thinking that one should be like the ancient Roman God Janus which is credited with two heads one looking back into the old year and one forward into the new commanding both hind sight as well as foresight, so that warned about the shoals and rocks of the immediate future one might use the experience and wisdom of the immediate past in meeting them.

Times have now changed, the old social order, based on wealth and privileges has crumbled, yielding place to socialism and in some instances to communism and to a further extent communalism. Law as well as lawyers have to respond to this change. Adaptation is called for not as a shrewd response but as reflecting the growth of an intelligent realisation and real conviction that we cannot fashion a closing 20th century service from a 19th century mould. "The first thing we do, let's kill all the lawyers", said Dick to Jack Cade (Shakesphere, Henry VI, Part II, Act, IV, Scene 2, line 86). Perhaps one day, we shall receive a more kindly epitaph than this.

The bane of our country at present is that politics has crept into every sphere of life. Many live and thrive on politics. One may as well exclaim.

"O that there might in India be A duty on hypocrasy, A tax on humbug, an excise on solemn plausibilities"

The expiring year has been, by and large a year of little achievement and general disenchantment. For untold mill ions 'equality, liberty and fraternity' means fraternity of street corner, liberty to starve and equality in death. Men and dogs still fight over morsels of food in many big cities. There are countries where people go hungry, and death due to starvation and chronic malnutrition is accepted as a natural phenomenon.

The need of the hour is to dispense light, not to generate heat in reassessing the nation's moral values, its political standards and economic opportunities for ending the current stagnistion and psychic downturn.

The problems of the lawyers and especially the junior section of the Bar are many. The number of law graduates passing out of the law colleges every year is great. Therefore the field of activity, has to be expanded and extended to branches like taxation and industrial law and new spheres where law graduates could play a positive role have to be found out. To redress the manifold grievances of the lawyers, the only solution is a well-organised united Bar. Unfortunately, Lawyers, today are divided on every issue inside and outside the Court. The only sound way to meet the challenge is for the profession to unite and organise.

We cannot foresee what is in the womb of time and what may happen in the next twelve months. Let us hope the TIMES will be useful and prosperous for all of us.

An Interpretation Gone Astray or Awry?--

A Critique of Kunhi kelu v. Abdul Samad : 1990 (2) KLT 457

(S. Parameswaran, Advocate, High Court of Kerala, Ernakulam)

1) Interpretation of statutes is no less an art than a science calling for the exercise of sharp intellect, interpretative skill, judicial "legerdemain" and legal acumen. Not every Judge or every Bench comes out with success, much less flying colours, in this tantalising, yet tenter-hook-holding, exercise. In an era of evolving an expanding sociological jurisprudence, where law is considered not an academic abstraction for the ivory-tower academics, but an effective and energising instrument of social engineering and innovative social action, it affords-and, indeed, should afford-understandable temptation and adequate opportunity for judicial activism. But, even a Judge or a Bench familiar for its incisive analysis and inquisitorial insight may trip on occasions. The latest instance on point is Kunhi Kelu v. Abdul Samad, a judgment of Justices K. Sukumaran and Rajasckharan reported in 1990 (2) KLT 457.

2) Placing its reasoning on the pegs of S3 of the Kerala High Court Act, S.22 of the Kerala Small Cause Courts Act, S.115of the Code of Civil Procedure, and S. 103 of the Kerala Land Reforms Act, Their Lordships have held that a single Judge is not competent to deal with revisions under S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 and that the revisions have to be heard by a Division Bench of two Judges. But, after making these observations the Judges express the hope that the Legislature may step in with a specific provision by way of amendment of the statute-a clear enough indication that they were not sure of their steps and sanguine about the sustainability of their pronouncement! Does it not reflect or reveal the fact that the Bench headed by an intelligent and innovative senior Judge felt unsure of its ground and steps? Then, why supply the causus omissu, when the Bench itself rightly observed, "It is for the legislature to have the final say".

3) The Bench is correct in referring to the provision of S.4(7) of the Kerala High Court Act, but not right in its interpretation based thereon. But, it should not, with respect, have contented itself with placing reliance on Ouseph Chacko's case (1966 KLT 1060), a case decided by Justice Krishnamoorthy Iyer, whose competence in, and command over, civil law is, of course, nonpareil! It should have recalled and recognised the fact that it was not the Legislature's fault that landlords and tenants were bandied about on account of the shifting sands of judicial dicta concerning the interpretation, scope and applicability of S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 and its finality. In the normal course, the Legislature originally provided for the revisional jurisdiction to be exercised by the District Court. It was the Kerala High Court which evolved and invented the remedy of a further revision under S.115 of the C.P.C. to the High Court, jurisdiction for which used to be exercised by a Single Judge of the Kerala High Court. The Supreme Court, after some vacillation, gave a quietus, to the controversy by laying down that no second revision would lie.

4) The court's abrupt and seemingly profound treatment is not rendered understandable in the context of the disastrous consequences it may leave on the fate and future of the litigants; perhaps, it can boast of an egalitarian impact (not ethos) in that both landlords and tenants are at the receiving end. This is an enormous, and, none the less, erroneous, interpretation undertaken without analysis or justification.

5) As neither the language of the statute nor the legislative history supports its holding, the Division Bench is compelled to rely on an earlier decision of the Court without an attempt at an analytical scrutiny of the said decision and perhaps on its own perception of the policy. Its conclusion that the language of the statute is clear, admitting of no advertance to other settled canons of interpretation of statutes, is, to put it mildly, not soundly based. The court's error in statutory construction, however, is less objectionable than the attitude of imperviousness to the injurious impact of the decision it displays in its decision. The court's insensitivity to the human dimensions of this decision is particularly obvious in its cursory discussion of the statutory provisions and its avoidance of a meaningful scrutiny of the statute.

6) Will it not sound anomalous, that while a second revision was entertained and adjudicated upon by a Single Bench of the High Court, the first revision is enjoined to be heard by a Division Bench. Neither textual tenets nor contextual compulsions warrantor justify such an interpretation and dictum, particularity when one bears in mind the checquered history of S.20 of Act2ofl965 caused by the rather harsh and continuous beatings it had to bear from judicial hands. That lawyers and litigants have suffered a lot on account of such, what I may respectfully and euphemistically, call "judicial ventriloquism" is a different matter and a poor consolation. (The bitter memories of judicial inconsistency in regard to the Kerala Land Reforms Act and its disastrous effect on the fate and fortunes of litigants are still fresh in our minds). When one views these facts in their proper perspective, one can see that the best course would have been to let the status quo continue and point out to the Legislature the lacunae and lapses, if any, in the legislation and highlight the importance of, and the need for, a legislative amendment byway of clarification in S. 20 of the B.R.C. Act or S. 4 of the High Court Act, that revisions under the section should be heard by a single judge.

7) When the consequences of such an interpretation are so serious, so far-reaching and pervading, so glaring a departure from the structure and spirit of the statutory provision, when the effect is to fetter the rights of the litigant, and of the courts, in the exercise of powers heretofore conceded to them, of the most fundamental character, in the absence of language which expresses in no uncertain terms such a purpose too clearly to admit of doubt, with respect, I say that this "radical" interpretation has to be reversed. This is particularly so, when day in and day out, we cry hoarse over the need for a simplification of the procedural law and a Door-delivery Justice System.!

8) Was it not better for the court to follow the well-entrenched tradition than fall a prey to the temptation of judicial legislation is a pertenent question that persters any discerming lawyer. The Division Bench's expectations and hopes about a legislative intervention appears more durable than its interpretation of the statutory provisions.

9) Courts acting under the guise of judicial power cannot nullify, defeat or distort the reasonably clear meaning of any part of a statue in order to give expression to some theory of its own about the broad or basic scheme of statutes. The power of judicial interpretation, even if it includes what may be termed 'interstitial law-making' cannot, extend to direct conflict with the express provisions of the statutes or to ruling them out of existence, as the express provision cannot be curtailed or nullified by an imaginative theory of legislative intention.

10) In this short article, my attempt is not to articulate the constraints that must operate upon the court when it resorts to the interpretation of a statute, but to highlight the tenuous moorings of the decision to the text of the statute and the disastrous and damaging impact, it may have on the domain of rent control cases. The decision sweeps unnecessarily broadly, and thereby invades the area of settled procedures.

11) In interpretation in relation to statute law, be they penal or beneficial, restrictive or enlarging, four points have to be discerned and considered: (a) What was the general law before the enactment? (b) What was the mischief and defect for which the general law did not provide? (c) What remedy the legislature has resolved and appointed to cure the defect and prevent the mischief? and (d) the true reason of the remedy. Then the office of all the judges is always to give a construction that shall suppress the mischief and advance the remedy, not to promote the continuance of the mischief or create added difficulties pro privato commodo, but to add force and life to the cure and the remedy, according to the true intent of the makers of the Act, on pro bono publico principles. These principles, mutatis mutandis apply to the interpretation under discussion.

12) Ido concede that the limit beyond which the power of judicial interference may not be pressed is neither definite nor unalterable, but may be made to move, within limits not well defined, with changing need and circumstance, and that any attempt to fix a rigid boundary would be unwise as well as futile.

13) The revisional power in question, though, perhaps, is a sustantive power, is simply a necessary noncomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law.

14) It is necessary to lay to rest tersely the somewhat decayed corpse of the Ouseph Chacko approach to the High Court Act, giving a quietus to the note-so-nagging, but, perhaps, lingering, doubt on the question.

15) The decision of the Division Bench makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Hon'ble Court. Its rejection of a perfectly plausible reading of the statute flies in the face of the principle of harmonious construction and the effectuation of the intention behind a socio-economic piece of legislation. The decision today appears symptomatic of the court's own insecurity over its handiwork in regard to the revisional jurisdiction of the High Court in rent control cases.

16) The need for judicial restraint is recognised by our High Court. Justice Sukumaran in the Full Bench decision in P. Asokan v. Western India Plywoods Ltd. (AIR 1987 Ker. 103) quite succinctly reflected this principle when his Lordship observed, "Even the courts without much of enthusiastic exuberance of judicial activism can bring about results by a meaningful interpretation".

17) Lord Rcid's observations in Attorney General for Northern Ireland v. Gallagher (1963 A.C. 349 at 366) are quite apposite to the current context. Said the learned Law Lord, "We can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge. We can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which, we may think, was probably intended, but which cannot be inferred from the words of the Act". (emphasis supplied)

18) I may conclude recalling the observations of the United States Supreme Court, which, though rendered in a different context, are quite appropriate to the present case:-

"The responsibility, therefore, rests upon legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government, if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annual statutes that had received the sanction of the people's representatives" (Atkin v. Kansas 191 U.S. 207,223).

Need for Structural Reforms in the Indian Judiciary

(S. James Vincent, Advocate, Ernakulam)

A free and independent Judiciary is a basic feature of a Republican Constitution, and is the cornerstone of Indian democracy. Well, that was the design and the intention of the framers of the Constitution; but in practice, the Judiciary in India has always been top-heavy and burdened with what is called "docket explosion" or "caseload crisis", with the result that it has not been able to deliver the goods upto the expectation. Delay in the disposal of cases is the bane of Indian Judiciary. Many Chief Justice of India, for example, Justice P.N. Bhagwati and Justice Venkataramiah, have confessed that the Indian Judiciary is on the virge of collapse. But at present it has crossed that stage and is virtually collapsing. Definitely, workload is one of the reasons for its ineffectiveness. But we need not ascribe to it the entire fault; we have to focus our attention on other aspects like the internal working of the court, its mechanics and techniques. We must also guage the strategems and the strategies of the working of this institution in order to understand its weakersports.

In India, ordinarily, a civil litigation is a matter for concerted action for a generation. A civil suit at the trial court and a first appeal in the District Court ordinarily take 3 to 5 years each for a finish, and a second appeal in the High Court, 4 to 6 years. Again, in between this tier-type litigation, it ordinarily takes 6 months to get a copy of the judgment and decree in the Subordinate courts, and 3 months in the High Court. That means, in total, about 15 years for an ordinary suit to find its finality at the High Court level. Thereafter, the real bugbear of the Plaintiff, called execution, stares in his face. That ordinarily takes 5 years. But there are likely to be a spate of other interlocutory proceedings, such as civil revision petitions, civil miscellaneous appeals, etc. that may add 3 to 5 years to the age of the litigation. That means, in a hotly contested case, to get the final result, ordinarily, it takes around 20 to 30 years at the level of the High Court, in respect of cases relating to recovery of real property and realisation of money. But if one is destined to prefer the luxury of a further appeal in the Supreme Court, 15 to 20 years have to be added again. That means, something like 50 years for a hotly contested litigation to reach finality. There may be exceptional cases where reliefs obtained earlier due to various reasons. This is the nature of litigation with respect to recovery of immovable property and realisation of money; but in respect of injunction suits relief may be available much earlier. In the case of money suits the period for securing a decree may be less compared to the property suits; but though the period for securing a decree may be less compared to the property suits, the period for securing the ultimate relief (the time necessary for execution) is much longer.

When we take a close look at these litigations, we can understand that the nature and substance of these cases vary vastly. From simple cases for recovery of Rs.100/- to Rs.100 -million suits filed by banks and other financial institutions; from dog-bite cases for wreaking vengeance on the opponent to multi-million rupee suits like the Golden Temple damage suit against the Union of India or the Bhopal litigation against Union Carbide. There are vexatious litigations too. There is no effective law or mechanics for checking unnecessary litigations. Again in several instances, litigation is launched to harass the opponent, or as a matter of prestige, and in such cases the suit is converted into a never-ending process, causing drain on public resources, and an Indian litigant has also the freedom and the fundamental right to take all these cases right up to the Supreme Court. This is also one of the main reasons for the weakening and the ineffective functioning of the Indian judicial system.

Therefore, in addition to the introduction of steps and techniques to reduce the arrears and the period of litigation, we have to think about structural reforms in the Judiciary for making it a more useful and effective institution. We must think why the Village Panchayats not be given the power to settle small disputes, say, upto the value of Rs.1,000/-, silly but prestige litigations like boundary disputes, disputes relating to trees on the boundary, disputes relating to easements, etc. Why not lawyers' chambers be utilised for pre-trial discovery and settlement, negotiations and compromises, and out-of-court settlements? At least, in small types of litigations, lawyers should act as umpires and settle cases amicably and immediately? Such cases should not be allowed to reach the courts and congest the system.

Moreover, there should be reforms in court procedures too. Unnecessary, avoidable and purely technical rules of procedure could be abrogated or at least simplified. Provisions regarding service of notice through process servers, substituted service, fresh notice in pauper proceedings after conversion as a suit and in appeals and revisions after condonation of delay, in review proceedings etc. could be avoided. Notice could be served at the first instance per Registered Post, and process servers need be sent only for affixture. Providing lower court records in time to Appellate and Revisional Courts is essential for quickening the pace of justice. Again preparing the prefix and suffix to the judgments at the time the judgment is ready for pronouncement and taking as much photocopies as are necessary for service on the litigants and delivering them at the time of pronouncement of the judgment, are also essential. Introducing reforms in the pleadings mainly for making it compulsory for litigants to state in their pleadings the names and addresses of their legal heirs and of the lawyer they intend to engage in case of appeal or revision in the District Court or in the High Court, as the case may be, would also cut short unnecessary procedure. If this is done, notice in appeals and revisions could be served on the counsel, making service of fresh notice on litigants unnecessary in appeals and revisions, saving much time and expense for the litigants.

Abatement and impleading of legal heirs after several years, causing delay in litigation, could be avoided. Avoiding unnecessary postings in court, is also necessary. That is to say, cases need be posted in open court only for taking evidence or for hearing or such other important matter, and the period for filing replies and written statements should be limited to 1 or 2 months, depending on whether a suit notice had been served earlier, without investing the discretion in the Court to adjourn cases for these purposes. All documents and list of witnesses should be produced along with the pleadings. Copies of all papers produced in court should be served on counsel for the opposing parties. Time limits should be strictly enforced.

Abrogating the provisions relating to execution in the Code of Civil Procedure and making execution itself a part of the trial procedure, is necessary. There need not be another execution petition, notice in execution and the consequential persecution of the plaintiff. The rules of pleading should be made strict and enforced strictly, so that prolixity of pleadings could be avoided. Rules of relevancy in the Evidence Act. too, should be strictly enforced, so that unnecessary oral and documentary evidence need not be let in and unnecessary and harassing cross-examination can be avoided which would save a lot of time of the Court. Again, oral arguments could be limited and written briefs could be made compulsory, together with appointment of Law Clerks in the District Courts, High Courts and in the Supreme Court. Issue of commissions should be strictly in turn from a panel which is to be renewed every half year and limiting the time for submission of the report to 2 or 3 weeks, or a month. Again, priority of cases has to be determined and time limits prescribed, which should be strictly enforced.

There is one more thing that requires immediate reform. That relates to the working mechanics, the techniques and the procedures, and the provisions for appeals and revisions in the High Courts and the Supreme Court. The High Court should be in the model of the British Supreme Court, which consists of the Divisional Courts and the Court of Appeal. The Divisional Court could be manned by single Judges. High Court Judges following their elevation could be assigned to the Divisional Court, and after acquiring 5 to 7 years of experience as a Divisional Judge, should be elevated to the Court of Appeal with better perks and conditions of service. The decisions of Divisional Courts shall not be reported and those Judgments shall not be cited as precedents, excepting on points on which there are no decisions of the Supreme Court or the Court of Appeal. The Judgments of Divisional Courts could be certified for reporting by the Council of Law Reporting for unique reasons. It is also necessary that the Judges should have a minimum tenure of around 25 years, that is to say, Judges should be appointed around the age of 40 and the age of retirement should be fixed at 70 for the Supreme Court and 65 for the High Courts. Persons with less than 10 years of potential service shall not be appointed, in view of the fact that it takes around 3 to 5 years for a Judge to get accustomed to his work and feel at home in the office, and almost all strong and sound judges have been those who have had comparatively long tenure of service. As far as appointment to the Supreme Court is concerned, Judges should be in their early or middle 50s, with at least 10 years service left, which would help maintain uniformity, continuity and predictability of the law declared by the Supreme Court.

A proper mechanism for the selection and appointment of the Judges to the High Courts and the Supreme Courts, and for looking into the complaints against Judges, is also very important. In respect of this aspect, there is now what is called the Constitution (Sixty-seventh) Amendment Act 1990 which provides for a fairly satisfactory mechanism for looking into the complaints against Judges. However, for an effective and proper selection and appointment of Judges, there is no finalized effective programme or proposal. The Law Commission in its 120th Report has recommended the setting up of a National Judicial Commission with powers of selection of the Judges. The institution of a National Judicial Service is also contemplated. The Report of the Law Commission recommends that appointment of Judges to the High Courts shall be in the ratio of 40:40:20 from the Indian Judicial Service, the Subordinate Judicial Service and the Bar. This is far from being satisfactory. There is no reason for giving a higher preference to the candidates from the Subordinate Judiciary overlooking the legitimate claim of the Bar, whereas a greater preference could be given to the Indian Judicial Service. Therefore, it is felt that the quota should be fixed as 50:20:30. It could even be 1:1:1, that is to say, equal number from the three segments, which would maintain a system of healthy rivalry and competence.

As far as the Supreme Court is concerned, there has to be substantial reforms. There shall be 31 Judges in the Supreme Court which should adopt a two-tier sitting pattern. Eleven senior Judges shall sit en bloc to hear constitutional cases alone and this constitutional tier should function like the US Supreme Court. In addition to these 11 Judges, there could be 4oth'er ex officio members to help and guide the Judges in resolving disputes relating to Policy considerations. These ex officio members shall be co-opted by the Chief Justice of India. There shall not be individual judgments, but only one majority judgment and a minority judgment, so that the voice of the court shall be powerful and discernible. Admission to the Constitutional Court should be very strict, as in the American Supreme Court. The remaining 20 judges should sit in four Divisions of 5 Judges each to deal with civil, criminal, taxation, and labour matters. The 5 Judges of each division shall sit en bloc and there shall be only a majority and a minority judgment and no individual judgments. Admissions in these divisions should also be radically strict.

Last, some thing about the Bar too. The Bar being part of the Judiciary, should reform itself. Formation of big partnerships in the nature of big US law firms should be thought of Again, there should be facilities for acquisition of adequate professional competence and training, introducing pre-trial settlements, negotiations and out-of-court compromises. Law offices should be modernized. Introduction of computers and electronic devices and technological inputs, etc. would be very essential in order to cope up with the modern technological developments in other fields.

If the Bench and the Bar are reformed and refined and made efficient, the litigants will get the result quickly and effectively within one year in any court so that there will be finality to a case within 2 to 3 years, as in the case of Great Britain or the United States. Urgent legislation would be required in this regard - constitutional, statutory and regulatory. And the earlier the better.