Revisiting Preamble

(By Kaleeswaram Raj, Advocate, Supreme Court of India and Kerala High Court)

It is an irony that much debate was required for the Government to say that the Constitution is our holy book. The treacherous remarks on secularism and socialism by the Home Minister created initial obfuscation that had to be erased by the Prime Minister’s assurance to stick on to the constitutional values. The Government ultimately acknowledged the distinction between conventional democracy and constitutional democracy, thereby hinting that the latter is not merely a device for majoritarian regime.

The fascination for the original Preamble does not seem to be a feeling expressed in the best interest of the nation. A textual revisit to the Constituent Assembly debates and an empirical evaluation of the country’s journey after independence would support this postulate.

 Chief Justice Marshall visualised the Constitution as a socio political document “framed for ages to come” and “designed to approach immortality as near as human institutions can approach”. In the Indian context, Justice R.C.Lahoti described the Preamble as the “quintessence of the Constitution”. The Constituent Assembly extensively debated on each and every word in the preface to the fundamental law. Dr.Ambedkar, apprehensive of future contradictions between constitutional dreams and social realities, however, advocated for institutional reforms. An optimist Nehru who pleaded for fundamental rights, Sardar Patel who was skeptic about them, Rajagopalachari, whose inclination was more towards a Gandhian Swaraj, and K.M.Munshi who was eloquent on individual liberty were all dynamic in the debates, which in all respects were ‘national’.

The Preamble was amended in 1976. The amendment came into force on 3.1.1977. The 42nd amendment was preceded by debates within and outside the Parliament.

The proponents of ‘original Preamble’ have however, put forward the following postulates:-

(1) Even without these words in the Preamble, we are a secular country.

(2) There is nothing wrong in using the ‘original Preamble’ for official purpose.

(3) The founding fathers of the Constitution did not include the words ‘socialist and secular’ and therefore the present day congress leaders could not have desired for something which even Pandit Nehru did not want.

The third postulate is vulnerable to historical scrutiny. While moving the motion for amendment, the then Minister of Law H.R.Gokhale, opened the discussion by referring to Pandit Nehru’s speech on 22.1.1947:–

“The first task of this assembly is to free India through a new Constitution, to feed the starving people, to clothe the naked masses and to give every Indian the fullest opportunity to develop himself according to his capacity” (Loksabha Debates Vol.65 P.75).

Gokhale then indicated that the Preamble “being the key to the whole Constitution” should more accurately and correctly reflect the ‘objectives’ of socialism and secularism. (Ibid).

Therefore it is erroneous to delink Nehruvian concept of socialism and secularism from the ‘politics of amendment’. The conflict was rather between the Nehruvian approach on the one hand and the leftist perception on the other. During the discussions, the veteran communist leader Indrajit Gupta reacted by saying that mere inclusion of the words would not alter the socio-economic structure of the country. Gupta even referred to National Socialist Party in Germany led by Adolf Hitler to argue that there is nothing so significant in the description. He pleaded for strengthening the directive principles with a socialist edge, rather than making ‘cosmetic’ changes in the Preamble.

The other postulates also are equally fragile. Even the Constituent Assembly debates show a conceptually flawed move to assimilate socialist traits in the Preamble. Maulana Hasrat Mohani who pleaded for incorporating federalism in Preamble, also wanted to name the country as "Union of India Socialist Republics” (U.I.S.R.) resembling U.S.S.R. This was unacceptable to the majority, for the very political structure of U.S.S.R. was dissimilar to the Indian Constitutional policy. However, the fact remains that the proposals and deliberations as occurred in 1976 were absent during the making of the Constitution. Nor there was a historical context as it occurred in 1976 to call for an amendment. Therefore, such comparisons would be out of place.

 Socialist jurisprudence

The finest part of the 42nd amendment is that it motivated the Supreme Court not only to endorse the amendment but even to evolve a socialist jurisprudence. A ‘Krishna Iyer School’ in the Supreme Court found its ideological legitimacy in the amended Preamble. In Excel Wear (1978) the Supreme Court relied on the socialist component of the Preamble to endorse nationalisation process and State’s monopoly over resources. In Radhir Singh (1982) the doctrine of ‘equal pay for equal work’ was expounded on the same premises. In Nakara (1982) the Supreme Court could strike down the disparity in emoluments paid to the pensioners for it arbitrarily negated the socialist goal of the Constitution. Socialist approach, according to the court, should involve a strategy for decent standard of life. The Supreme Court even explained the concept of socialism as a “blend of Marxism and Gandhism” which could be proximate to Gandhian Socialism. The decision in Dharwad Employees (1990) asserted the right for pay parity for casual workers and that in Samatha (1997) with a striking title took a formidable posture against inequalities, in the context of tribal rights.

An aversion to the amendment expressed by a few elected leaders therefore clearly indicates their ideological plank which again should be subjected to public scrutiny. While projecting the original Preamble, they practically ignore the authoritative pronouncements of the Supreme Court on the socialist characteristics of the constitutional text.

Secularism

The President’s power under Article 356 of the Constitution for dismissing State Governments and dissolving State Legislatures was the matter in issue in Bommai (1994) The court held that secularism, like federalism, is a basic feature of the constitution. In States like Madhya Pradesh, Himachal Pradesh and Rajasthan, the reports by the respective Governors sufficiently indicated that State Governments and even the ministers were in hand in glove with the communal forces. The executive abetment of communal activities led to a real break down in governance in the States.

It was in Bommai that the Supreme Court inter alia examined the secularist Preamble along with the other parts of the Constitution including Articles 25 to 30, which deal with religious freedom. The Court held:-

Under the Constitution no party or organization can simultaneously be a political and religious party. It has to be either. Same would be the position, if a party organization acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party. The fact that a party may be entitled to go to people seeking a mandate for a drastic amendment of the Constitution or its replacement by another Constitution is wholly irrelevant in the context. We do not know how the Constitution can be amended so as to remove secularism from the basic structure of the Constitution. Nor do we know how the present Constitution can be replaced by another; it is enough for us to know that the Constitution does not provide for such a course - that it does not provide for its own demise. (All India Reporter, 1994. Para 243).

This long passage from Bommai would also signify the importance of amendment. The plea that India would be secular even without that word in the Preamble is historically incorrect and even deceptive. The truth is that even with the word, the communal outfits could sabotage the constitutional scheme which ultimately led to interference by the court and protest from the electorate. Bommai contains a final declaration of law on the subject. It is no longer a legal text. On the other hand, it is the country’s experience. And as Justice Holmes put it, life of the law is not logic; it is experience. Though the 42nd amendment might have had a political agenda behind it, the present yearn for doing away with it is all the more perilous.

(The original text of the article is edited and abridged by the author). 

Is Capital Punishment, The Answer to Juvenile Crime?

(By Dr. Jayaprakash R., Additional Professor of Paediatrics, Child Psychiatrist, Behavioural Paediatrics Unit, SAT  Hospital, Government Medical College, Thiruvananthapuram)

Finally the Rajyasabha also amended the J.J. Act (2014) to trial the juveniles in the age group of 16-18 years like adults who committed major or heinous crimes. That means, they will be subjected to similar punishments also? This is in the wake of protest against the release of a juvenile offender who took part in the crime of raping a girl in December, 16, 2012 in Delhi. He was the one who tried to abuse the helpless girl most physically and sexually. Naturally the public opinion was that he committed severe crime as well as an adult crime, so he should be given more punishment than others in the gang. Public opinions of similar nature were raised in similar situations all over the world. But as a signatory to UNCRC (1989) India and majority of other countries kept away from this demand. Our JJ Act (Care and Protection, 2000) was in line with the concept that all those under 18 should be considered as children, those who commit crime should be called as ‘children in conflict with law’and be kept away from our routine legal and judicial process, but will be tried in Juvenile Courts and send to reformative institutions for a maximum period of 3 years. The concept or the principle behind this approach is, since they are children, they have not attained the appropriate developmental state to understand or recognize the heinous act, or its consequences. China (1997) and America
(2005) also moved forward in this direction and stopped the capital punishment for younger than 18 years. Recognition of the concept of juvenile delinquency and criminal responsibility among children and adolescents has got evolved over past three centuries.  But with current amendment we are moving backward from our previous scientific and developmentally appropriate stand.

The new amendment has to be withdrawn or our President should not give consent to ratify it. It should not be allowed to include in the law of land because of two reasons.

Firstly, the children and adolescents, up to age of 18, are still in the growing and developmental phase. The cognitive neuroscience and cognitive developmental psychology has developed and evolved over the last three decades and has come out with definite knowledge about adolescent brain development. Now it is confirmed that adolescent brain continues to develop and complete this process only by the end of 18 to 20 years. The main neurodevelopmental process is the continued myelinization and development of the areas specifically prefrontal lobe (concerned with executive function), temporal lobe  (concerned with intelligence) and amygdala (concerned with control of emotion and social cognition). The developmental maturation of pre frontal lobe is concerned with the control of one’s impulsive behaviour in anticipating the consequence of an act, i.e. thinking before the act considering the pros and cons of it …So with premature prefrontal lobe, among the adolescents irrespective of the gender, the desire for emotional intimacy (love affair etc.) and sex will be much higher than that of any adults. It is this same (impulsive) adolescent cognitive developmental psychology which works in both high school/higher secondary girls when they are being attracted by crooked love affair and offers by maiden ‘lovers’ who stand outside the school wall as well as the adolescent rapist. So one have to realize that the desire and resultant acts of an adolescent rapist will be more powerful and abusive than any adult experienced rapist. It is this (immature) developmental psychology which worked in Delhi or similar incidents.

Secondly, considering the developmental psychology of criminal behaviour, after 10 years of research on criminal behaviour among children and adolescents in Behavioural Paediatrics Unit, SAT Hospital, the risk factors for such child-adolescenthood criminal behaviours were families abandoned by father (single parent family), quarrelsome families, alcoholism, and domestic violence (2014). In many families these multiple risk factors were interacting with each other. So the poor ‘criminal children’ are the creation and scape goats of their bad family and psycho social environment. Now it is also known that these family and psycho social environments badly and reversely affect the brain development from early childhood itself. So one can easily recognize the developmental psychology of criminal behaviour among children and adolescents. Here we should not separate a juvenile crime per se from his or her family or psycho social environment, but have to see holistically. Taking the juvenile crime alone after ignoring the background is very unscientific. By this new amendment, we can start by giving more and more capital punishment to these poor impulsive adolescents. Will we hang these adolescents?Pathetic!

These two points were nowhere in discussion during the amendments either in the parliament,Rajyasabha or in the society. Experts of child and adolescent mental health were not consulted or opinion were not taken before this major and drastic amendments. Proper application of cognitive neuro-science and adolescent developmental psychology of criminal behaviour in legal proceeding and judicial process is the need of the hour.

Some  suggestions  are  good

The suggestions regarding the creations and functioning of child welfare committee and juvenile justice board are very good. Proper continuation of education, employment and rehabilitation back to life should be the basic principles when we consider the criminal behaviour of children and adolescents. Of course the ‘adolescent criminals’ like Delhi incidents will be dangerous, if we release them as such to the society. But it is the social and judicial responsibility to build up a proper education-rehabilitation system for the juvenile delinquents, but for that we have to go miles…It is cruel and improper for a developing society to move away from the responsibility of our system, but solving this major social issue by killing the juvenile culprits. 

Begging  A  Social  Issue  Cum  Social  Menace -- A  Study

(By Yadukrishnan B, Advocate, High Court of Kerala)

“Begging would have been the best option if God had given talents to only a selected few. Fortunately, He gave us all our compatible gifts respectively, so it is an offence to be a chronic beggar” -- Israelmore Ayivor, A Ghanaian Author

Begging is one of the most serious social issues in India. In spite of its rapid economic growth, India is a poverty-driven country, which is also leading to the growth of beggars in the country. Most of them come from Bangladesh and some of them are from various parts of India. There are a few beggars in the country who actually are the real ones, who beg because they are handicapped, because of their inability to work or because they are old or blind or because they really need money for basic needs. There are many others who live far below the poverty line and opt for begging to earn their livelihood. There are some cases in which the entire family is involved in begging. The family members keep on increasing with marriage and birth and each of them gets into begging on streets or temples and church premises. Children of such families do not go to school but only beg. They have to do begging because their family’s income is not enough to feed the entire family in a day. Here, poverty is one big reason for such a situation. But at the same time, begging is not the solution for such a situation.

Begging  in  India  as  a  Scam

Poverty is real in India but not begging. Begging in India has become a big racket in the country. For many, begging is just like any other profession. They go out to earn money, not by working, but by begging. In fact, there are begging gangs in cities like Delhi, Noida, Gurgaon, Mumbai, Kolkata, Chennai etc. These gangs have their own gang leaders. Each leader allots a particular territory for a group of beggars and the day’s earnings are shared among them. The gang leader keeps the larger share. These beggars are so involved in begging that they do not want to work elsewhere. It is strange but true that some of these beggars earn in thousands and lakhs, much more than a normal middle class worker.

It is very difficult to find out who is a real beggar and who is not, because looks are very deceptive. Even the children with their shabby faces with pleading looks are properly trained to beg and look real. Sometimes, our heart melts when we see a young woman holding her tiny baby, begging on the streets. In most cases, the baby is found sleeping. This is a scam. Many sting operations have revealed that babies are rented to give credibility to begging. Sometimes, babies are drugged for the entire day, so that, they look sick and they can be easily carried from one area to another by the young women beggars.

The beggars are trained to become very persistent while begging that you are bound to give them money. This is especially true for foreigners when they do not know how to react in such situations and ultimately give money to the beggars. Some of the young beggars also become anti-social elements of the country. They get into drugs. To buy drugs, they start with begging first, then slowly graduate to pick pocketing and then move on to bigger scams like robbing and killing.

Begging  in  Kerala

Regarding begging in Kerala, majority of the beggars are from neighbouring States, especially from Tamil Nadu. The poor from these States are attracted by the comparative richness of Kerala and undertake this as relatively easy way ofliving. It has been reported that many come in the morning train and get back to their villages by evening train like people in any other job. There have also been reports about the beggars living in rented lodges. The rising burglaries in the State have also been attributed to their increased number. The Kochi and Thiruvananthapuram Corporations have taken the right step by banning begging. Other local authorities should follow suit to end the menace. Regarding rehabilitation, the State needs to support only those who hail from Kerala. Beggars hailing from neighbouring States should be sent back to their native places. This will minimize the financial impact on the State’s exchequer. Recent news with respect to begging in Kerala is that it has been almost abolished in Thiruvananthapuram district from January onwards. In what is perhaps a unique achievement for any district in the country, the Kerala capital will now be devoid ofbeggars, following what the social welfare department officials claim to be the result of a year - long effort to root out beggary. The new project to eradicate begging had its roots in the Juvenile Justice Act and when the authorities in the Kerala capital set their minds to end begging by children, they found that there were only a few hundred children being used by the beggary mafia to seek alms. Begging as a social menace is a deep rooted problem.  In Ernakulam district it has become a serious social issue. In almost all the corners of shops. establishments, hospitals and hotels we find these beggars. The pity is that we are not getting sentimental to these people. Most of them are from outside Kerala and majority are women. We cannot find any problem with respect to their health and life situation. The problem is that they are considering begging as a job by depending uponothers. One thing the Government must do is to rehabilitate these persons from streets,otherwise send them to some shelter homes. Most of these beggars are strong and somewhat healthy. The accute problem faced by Kochi City is the growing concern of beggary. Poverty was the major cause of beggary sometimes before. But now it is not the major cause. The authorities have to conduct a thorough investigation about these street beggars and find their whereabouts.

Bombay  Prevention  of  Begging  Act,  1959

In India it is a crime to beg and the statute for this has been coded in the Bombay Prevention of Begging Act, 1959 which has been adopted by many States in our country. It has been extended to the Union Territory of Delhi (National Capital Territory of Delhi) on 2nd June, 1960. Unfortunately this has become archaic now and not just because it dates back to 1959 but because the punitive as well as rehabilitative measures are not coherent with the current scenario. Say for example, until our Parliament had passed and enacted the Criminal Law (Amendment) Act, 2013 which provides for an imprisonment of not less 20 years for rape convicts, the imprisonment for a convict of beggary (10 years) was more than what a rape convict would get (7 years). As a matter of fact, those dependant on the beggar is detained if the beggar is arrested. Even the definition of beggary is not appropriate in the law which causes trouble in identification and estimating the exact beggar’s population in our country.

Prominent  Features  of  the  Act:

•   Beggars may be arrested without warrant

•   They can be sentenced to jail without trial or may be sent to shelter homes/certified institutions

•   The punishment tenure for beggary rangesfrom 3-10 years in jail

•   Court may order detention of persons wholly dependent on beggar

•   Penalty for employing or causing persons to beg or using them for purposes of begging

•   Provision for the teaching of agricultural, industrial and other pursuits, and for general education and medical care of the inmates of the Receiving Centres/Certified Institutions

•   As per the Act, if any beggar detained in a Certified Institution is found to be of unsound mind or a leper, she/he can be ordered to be removed to a mental hospital or leper asylum as per provisions of the Indian Lunacy Act, 1912 and the Lepers
Act, 1898.

Growing Concern: The Ministry of Social Justice and Empowerment, concerned by the high number of beggars flocking the cities, has sought information from the States and Union Territories about schemes and welfare measures adopted by them to check beggary. Though, a number of States and UTs have enacted welfare measures through executive orders, but the data on their implementation status is unavailable. More surprising is the fact that even the National Crime Records Bureau has no data to throw light on the figures of beggar’s population in India.

Identification Issue: Identification of beggars is a challenge as the definition of beggars in the Bombay Prevention of Begging Act, 1959 provides no watertight classification of beggars. Hence, the homeless people and landless labourers who migrate to metros and bigger cities to look for means of subsistence, destitute people and other categories of people are tagged as beggars. Out of the inmates of 207 shelter homes in Delhi, only 10% are actually beggars. Old and ill people live there too and this also sometimes result in people becoming drug addicts and alcoholics. Moreover, rehabilitation mechanisms are absent for those detained and Right to Food cannot be extended to them, while infact they are as vulnerable (perhaps more) as all those who are being brought under the ambit of the noval and noble Right to Food Act.

The Racket of Beggary: Beggars are not atomic units on streets but a tiny unit of the vast beggary rackets being run by the mafia. So, the crime is not just the begging, but the act of pushing people into this down-hole and making money out of it.

Violation of Fundamental Rights: The proponents of Anti-Begging Act call it a rehabilitative process, but the fact is that most of the times, it is coercive, taking away one’s freedom of choice. But, it is perhaps a matter of perspective- a debatable issue as in today’s polity, phrases like “arrested without warrant” and “sentenced without trial” are an anomaly to today’s advanced judicial system and at the same time attract the eyes of the proponents of human rights. In the Indian Penal Code, punishment is equally stringent to persecution of convicts of beggary than set for much heinous crimes like attempt to murder, rape, culpable homicide not amounting to murder, acid attacks on women, etc. A comparable term of punishment for beggary is unjustified. On the other side, it is not only the beggar’s fundamental rights which are being violated, but also of the people who are coaxed into giving alms to them. Beggars touch the people, catch them by hands and chase them endlessly embarrassing them on streets. They blabber curses on those shooing them away. People helplessly end up digging their pockets.

Back in 2010, when Delhi hosted the Commonwealth Games and hosted thousands of international guests, there was a deporting drive undertaken in which beggars were deported from the capital to their original States. Shameless as it sounds this act undertaken by the Government by-passed the institutional mechanisms, the democracy of the people and the right to life and personal liberty of a proportionately large section of Indian population. All this need a redressal in a constitutionally viable, legal, and result oriented way. Skill development, rehabilitation, education, vocational training and other such aspects should be focused upon while designing a mechanism to deal with this deep rooted problem.

 What should we do?

Begging has grown at a significant rate in India. It is estimated that half a million people in India are beggars. The Government, varied organizations, activists claim that many measures have been taken to abolish begging and it has been successful to a certain extent. But the trend of begging still continues. We are also to be blamed. We as Indians are very orthodox, God-fearing and have a religious frame of mind. This compel us to do charity. And one easy way is to visit a nearby temple and give alms to the beggars there.

But as the citizens of this country, it is our moral responsibility to stop this menace and the best way is to stop giving alms. It might seem that we are very heartless in not giving money to a little child begging on the street, but this is one step that we can take to prevent begging. If more and more people come out and take a pledge that they are not going to give a single penny to any beggar, irrespective of their need. I am sure, beggary will then be completely uprooted from our country. Meanwhile, let the Government continue with its poverty alleviation schemes and make India a better place to live in.

As begging is a federal subject, respective States where begging is a social menace can enact suitable comprehensive legislation to ban begging. Kerala does not have such a comprehensive legislation and the State can think about it by banning begging on streets as well as making out efficacious measures to rehabilitate the begging citizen by improving their skill and craft to indulge in other works and avocation which they are capable of doing.

'Royalty' A Proprietary Right or Prerogative Right

(By M.K.S.Menon, Advocate, Supreme Court of India)

This Article is attempting to analyse the hardship that is faced by the litigants in a case that was referred to a 9 Judges bench because the delay caused in getting the matter heard, invariably results in grave injustice.

“Mineral Area Development Authority etc. v.  M/s. Steel Authority of India & Ors” reported in (2011 (2) KLT Suppl. 2 (SC) = (2011) 4 SCC 450), referred India Cement’s case reported in ((1990) 1 SCC 12) to 9 Judges Bench ;

ORDER

Having heard the matter(s) for considerable length of time, we are of the view that the matter needs to be considered by the Bench of Nine Judges. The questions of law to be decided by the Larger Bench are as follows:

1. Whether ‘royalty’ determined under Sections 9/15(3) of the Mines and Minerals (Regulation & Development) Act, 1957 (Act 67 of 1957, as amended) is in the nature of tax?

2. Can the State Legislature while levying a tax on land under Entry 49 List II of the Seventh Schedule of the Constitution adopt a measure of tax based on the value of the produce of land? If yes, then would the Constitutional position be any different in so far as the tax on land is imposed on mining land on account of Entry 50 List II and its interrelation with Entry 54 List- I?

3. What is the meaning of the expression “Taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development” within the meaning of Entry 50 of List II of the Seventh Schedule of the Constitution of India? Does the Mines and Minerals (Regulation & Development) Act, 1957 contain any provision which operates as a limitation on the field of legislation prescribed in
Entry 50 of List II of the Seventh Schedule of the Constitution of India? In particular, whether Section 9 of the aforementioned Act denudes or limits the scope of Entry 50 of List II?

4.  What is the true nature of royalty/dead rent payable on minerals produced/mined/extracted from mines?

5. Whether the majority decision in State of West Bengal v. Kesoram Industries Ltd. and Ors, ((2004) 10 SCC 201), could be read as departing from the law laid down in the seven Judges Bench decision in India Cement's Ltd. and Ors. v. State of Tamil Nadu and Ors.,((1990) 1 SCC 12)?

6. Whether “taxes on lands and buildings” in Entry 49, List II of the Seventh Schedule to the Constitution contemplate a tax levied directly on the land as a unit having definite relationship with the land?

7. What is the scope of the expression “taxes on mineral rights” in Entry 50, List II of the Seventh Schedule to the Constitution?

8. Whether the expression “subject to any limitation imposed by Parliament by law relating to mineral   development” in Entry 50, List II refers to the subject matter in Entry 54, List I of the Seventh Schedule to the Constitution?

9. Whether Entry 50, List II read with Entry 54, List I of the Seventh Schedule to the Constitution constitute an exception to the general scheme of Entries relating totaxation being distinct from other Entries in all the three Lists of the Seventh Schedule to the Constitution as enunciated in M.P.V. Sundararamier & Co. v. State of Andhra Pradesh & Anr. ((1958) 1 SCR 1422) at 1481 (bottom)?

  10. Whether in view of the declaration under Section 2 of the Mines and Minerals (Development & Regulation) Act, 1957 made in terms of Entry 54 of List I of the Seventh Schedule to the Constitution and the provisions of the said Act, the State Legislature is denuded of its power under Entry 23 of List II and/or Entry 50 of List II?

  11. What is the effect of the expression “...subject to any limitation imposed by Parliament by law relating to mineral development” on the taxing power of the State Legislature in Entry 50 of List II, particularly in view of its uniqueness in the sense that it is the only entry in all the entries in three Lists (Lists I, II and III) where the taxing power of the State Legislature has been subjected to “any limitation imposed by Parliament by law relating to mineral development”.

Before concluding, we may clarify that normally the Bench of five learned Judges in case of doubt has to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger coram than the Bench whose decision has come up for consideration (See: Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr.(2005 (1) KLT 486 (SC).  However, in the present case, since prima facie there appears to be some conflict between the decision of this Court in State of West Bengal v. Kesoram Industries Ltd.& Ors.(supra)which decision has been delivered by a Bench of five Judges of this Court and the decision delivered by seven Judges Bench of this Court in India Cement's Ltd.and Ors. v. State of Tamil Nadu & Ors. (supra) reference to the Bench of nine Judges is requested. Office is directed to place the matter on the administrative side before the Chief Justice for appropriate orders.

Part  I

1. Legislative competence of the State Governments to impose tax on minerals and mineral rights had always bothered Hon’ble Supreme Court from the very inception of our Constitution. Even after 7 Judges bench judgment in India Cement’s case reported in ((1990) 1 SCC 12), the question as to whether the State’s prerogative to impose tax under our federal system can be restricted by the Central Government through a declaration under Section 2 of Mines and Minerals Development and Regulation Act 1957 is still bothering Hon’ble Supreme Court.   The question is as to whether the power of “regulation and control”  being a general power can encroach upon the State Government’s power of taxation, reason being the power of taxation is regarded as distinct matter and is separately set out and more so when power to tax  cannot be deduced from a general legislative entry as an ancillary power. Entry 50 of List II enables the State to impose tax on mineral rights subject to any restriction imposed by Parliament relating to mineral development. Then the moot question is as to whether a general declaration under Section 2 is sufficient to denude the power of the State to impose Tax on mineral rights. There is nothing in the MMRD Act 1957 imposing a specific embargo against such imposition of tax and the wording in Section 2 of MMRD Act 1957 reads as follows:

“ 2.  It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter  provided.”

Then the question is as to what extent power to impose “tax on minerals and mineral rights” are provided in the MMRD Act 1957. When imposition of tax is not covered by any of the provisions in the MMRD Act 1957, then can it be said that it restricts the power under Entry 50 of List II. This is the larger issue to be decided by the 9 Judges Bench. However incidentally as an offshoot, another issue also cropped up. i.e., whether “royalty” is tax or not. “Royalty” is always considered as the proprietary right vested in the owner and the MMRD Act 1957 is not an exception. Sections 17 and 17-A of the Act throw enough light on this aspect. 

2. Regarding the proprietorship of mines and minerals, a recent 3 Judges bench decision cleared the air misted up by a wrong presumption that all minerals are vested with the Government. In a case argued by the author and Judgment written by Justice Chelameshwar in Tressiamma Jacob v. Geologists reported in  (2013 (3) KLT 725 (SC)) laid down the concrete proposition of law on ownership on mines and minerals by reckoning the first principles from Halsbury’s Law of England and Broom's Legal Dictionary, holding that the owner of the surface of the land is also the owner of the minerals beneath unless it is vested in the Government through a known process of law.

3. Definition of “Estate” in Article 31-A of the Constitution created havoc at one of point time while interpreting “Proprietary Right” and “Prerogative Right”. Classic example is the case of Karambil Kunhikoman v. State of Kerala reported in (1962 KLT 42 (SC)) a judgment which resulted in the 17th Constitutional Amendment, amending Article 31-A so as to include ‘ryotwari settlements’  in the definition of “Estate”.  This has happened because courts below blindly adapted the propositions laid down in some judgments as legislations. Hon’ble Supreme Court always cautioned us on two aspects. (i) that a judgment cannot be read as a legislation and normal rules of interpretation or statutes is  not applicable while interpreting judgments. (ii) that a definition appearing in the Constitution is intended to interpret the Constitution alone and it cannot be applied while interpreting a Statute. (Madhav Rao Scindia  v. Union of India reported in (AIR 1971 SC 530). Any how the first post Independence agrarian reform enactment of Kerala namely Kerala Agrarian Relations Act 1960 was declared as unconstitutional due to a wrong interpretation of the word “Estate” appearing in Article 31-A of the Constitution by the Full Bench of the Kerala High Court in the case of Shukapuram Sabhayogam v. State of Kerala reported in ((1962 KLT 924 (F.B.)). Ryotwari Settlements were declared as government lands given in lease to the proprietors of the soil because it was declared that the Ryotwari owners are not proprietors of the land even though they are enjoying almost all the rights of a proprietor. This decision discussed the concept of “absolute proprietorship” while interpreting the word “ESTATE” in Article 31-A of the Constitution on the basis of local equivalent. There the Full Bench of the Kerala High Court went wrong in following Karambil Kunhikoman’s case reported in  (1962 KLT 42 (SC)) without appreciating the fact that (1962 KLT 42 (SC))  relied on the local equivalent from the Madras Estate Act 1908 and  that was not applicable to Malabar forming part of Madras State prior to State re-organisation. Most importantly the Full Bench was not informed of the fact that in Malabar, relationship between Ryotwari pattadar and its tenants were governed by Malabar Tenancy Act 1929, as appearing in the Madras Administrative Reports.  High Court proceeded to decide the issue by following  (1962 KLT 42 (SC)) a judgment based on Madras Estate Act 1908 where as the case ought to have been decided on the basis of Malabar Tenancy Act 1929. However the proposition laid down by the Kerala Full Bench in that case was wrong and happened to be contrary to what has been declared by the Hon’ble Supreme Court in a later judgment in the case of India Cement's v. State of Tamil Nadu reported in ((1990) 2 SCC 12) in which 7Judges of the Hon’ble Supreme Court declared that “Rajabhogam” namely “share in the produce”, claimed by the State during British Regime was only a “Prerogative Right” and not a “Proprietary Right”. “Share in the produce” was quite often misunderstood as “rent” pertaining to “proprietary right” and in fact it was clarified by the 7 Judges Bench as “revenue”  reckoning “prerogative right” of the State. Despite this clarification given by the larger bench in India Cement’s case at para 20, still the confusion continued due to one observation in paragraph 34 of the judgment to the effect that “Royalty is a Tax”. 

Part II

4. For reconsideration of a “ratio” in the judgment, Judicial discipline mandates that the smaller bench shall place the matter before the Hon’ble Chief Justice, for constituting a larger bench. This is the practice that is followed by the Higher Judiciary in India as a matter of convention/rule. At the same time one has to appreciate that there is always an exception for every rule. Eg. in a case when factually the earlier bench is not laying down a “ratio” on the facts in issue but logically it appears as though a “ratio” appeared to have been laid down, Supreme Court is not prevented from explaining what is the ratio in an earlier judgment. As per the well settled law as laid down by Hon’ble Supreme Court, the “ratio” is what it actually decides and not what “logically follows from the judgment”. (Ambica Quarry Workers etc. v. State of Gujarat reported in ((1987) 1 SCC 213). In some judgments a particular ratio appeared to have been declared but when analysed subtly, it could be seen that ratio has been declared in vacuum because the legal point decided may not be actually arising for consideration on the facts available in that case. Eg. Minerva Mills case reported in (1980 KLT 573 (SC)  touching upon Article 31-C of the Constitution of India.

5. There is one more important facet to be reckoned at this juncture. Constituting Larger Benches of more than 5 Judges in the Hon’ble Supreme Court is a very cumbersome process. Because of the dearth of Judicial time and personnel to be spared, it is very difficut to constitute larger benches. Larger the bench, lengthier will be the waiting period. Constituting Constitution Benches of 5 Judges itself very often derails the regular work of the Hon’ble Supreme Court which has to find time for various human and social problems.  Very often it is a herculean task for the Hon’ble Chief Justice to take a decision on priorities satisfying various public demands. May be it is time to consider as to whether the current scenario in the Hon’ble Supreme Court as a court of Special Leave where every issue is being agitated be changed, so that it gets enough time to deal with issues of larger public interest and constitutional matters alone. Once it is known to the litigant that the Hon’ble High Court is the last court of appeal, his expectations come to an end there.

6. At the present fluid state of affair, at least certain areas could be streamlined by adopting a more pragmatic approach, that can save valuable judicial time. Not referring “obiter” to larger benches of 5 Judges or more is one among them. Unless it is so unavoidable, it is always better not to refer the matters to larger benches. The author is writing this article after facing such a bizarre situation, where he will have to wait for another couple of decades to get a matter heard in a case in which his client started his journey about 25 years back when he filed a suit at Calicut/Kerala challenging the authority of the State to collect royalty on minerals vested in the private person. Central Enactment namely Mines and Minerals (Development and Regulation) Act 1957 as well as Kerala Minor Minerals Concession Rules 1967 provide that, the owner of the mineral is entitled to collect the “Royalty”. However State disputed the ownership of the private “Jenmies” and also their right to claim “Royalty”. Case when reached at the High Court of Kerala, one of the celebrated Full Bench judgments of 1960s (Shukapuram Sabhayogam reported in (1962 KLT 924 (F.B.)) was referred to larger Bench but the claim of the Jenmies were dismissed by the Bench by following the judgment reported in (1962 KLT 42 (SC)) which declared that in the Ryotwari lands minerals are vested in the Government. In fact neither (1962 KLT 42 (SC)) nor  ((1962 KLT 924 (F.B.) happened to be an authority to the point that all minerals vest in the government. Matter when reached before the Hon’ble Supreme Court, Hon’ble Court admitted the matter but stay was denied. This resulted in the total relapse of the enthusiasm of litigants because they lost their hope of winning the case even after spending lakhs of Rupees. Ultimately the mantle was taken forward by the author and it gave him the best opportunity to find meaning for his lengthiest research of 15 years and finally to get the matter decided by 3 Judges Bench in the Hon’ble Supreme Court. 

7. Matter was taken up by the Hon’ble Bench consisting of 3 learned Judges and finally declared that the “owner of the surface is also the owner of the minerals underneath”. Halsbury’s Law of England as well as Broom's Legal Dictionary came in support of the appellant and finally a judgment was delivered clearing the general misunderstanding that all minerals belong to the Government.  Whenever the case has been taken up, the first obstacle was to rebut the celebrated but the wrong presumption that all minerals are vested in the government. Author had occasion to argue this matter at least before a dozen benches including a Full Bench of Kerala High Court and also before different benches of the Hon’ble Supreme Court. Every bench expressed the same anxiety in upsetting this presumption i.e. “all minerals are vested in the Government".  However every time Section 17 and 17-A (3) of the MMRD Act 1957 came in as a panacea. These Sections were very often overlooked and general presumption was adopted which foreclosed further deliberation.

8. Even after the 3 Judges bench decision, author could not take his case to a logical conclusion because even after the 3 Judges bench judgment of the Hon’ble Supreme Court, the fate of the case remained the same. No final result. Even though the judgment namely Tressiamma Jacob v.  Geologists reported in (2013 (3) KLT 725 (SC)) declared that the owner of the surface of the earth is also the owner of the minerals lying within, the issue of “Royalty” was left open to be decided till the decision in Mineral Area Development Authority etc. v.  M/s Steel Authority of India & Ors. reported in (2011 (2) KLT  Suppl.2 (SC) that was referred to ‘Nine Judges Bench’. There is nothing wrong in waiting in ordinary circumstances but in this case Mineral Area Development Authority etc. v.  M/s Steel Authority of India & Ors. reported in  (2011 (2) KLT  Suppl.2 (SC) has been referred to a Bench of 9 Judges. Possibility of constituting 9 Judges Bench in Supreme Court in the near future is any one’s guess. That means another 25 or 30 years of waiting. This prompted the author to do further research and to move an application to get  the issue agitated separately so that the matter need not wait until the 9 Judges bench has been constituted.

Part III

PREROGATIVE  RIGHT  v.  PROPRIETARY  RIGHT

9. The line between “Prerogative right” and “Proprietary right” often gets obliterated in issues like “royalty on mineral working”. In India Cements' Ltd & Ors. v.  State of Tamilnadu reported in (1990) 1 SCC 12), Seven Judges of the Hon’ble Supreme Court in paragraph 20 clarified that the concept of “share in the produce”, very commonly applied in Madras Presidency is nothing but “revenue” and not “rent”. “Share in the produce” or “Rajabhogam” (Rajabhagam) was the governments share in the produce of the land which they were entitled to claim as revenue. This has been declared as nothing but the prerogative right. This has been misinterpreted quite often earlier and the word “share in the produce” was mistaken as “rent” (Proprietary right).

10. That very doubt still leads to the new controversy and referring of 7 Judges bench judgment in India Cement's Ltd & Ors v. State of Tamilnadu reported ((1990) 1 SCC 12) to a larger bench of 9 Judges. The reason for referring the matter to larger bench is that, in State of West Bengal v. Kesoram Industries Ltd. and Ors., ((2004) 10 SCC 201) another Constitution Bench 5 Judges of the Hon’ble Supreme Court clarified that “Royalty is not Tax”.  Constitution Bench in Kesoram (supra) clarified, that in 7 Judges bench decision in India Cement's (supra) Supreme Court never intended to hold that “Royalty” is “Tax”. However Hon’ble Mr. Justice Sinha was in dissent holding that a smaller bench cannot read down a larger bench decision. However Hon’ble Judges in majority headed by Justice Lahoti had given a wonderful reasoning on the point that India Cement’s case never wanted to hold that “Royalty” is “Tax”. This was done without quoting section 17 and 17-A of MMRD Act and held that Royalty can be claimed by a private person as well and therefore one has to realise that a private person is not vested with prerogative right and therefore cannot impose a tax. In fact in India Cement’s (supra) case,  Hon’ble Supreme Court was not invited to decide and hold that “Royalty is Tax” because that was not an issue in dispute on the facts of the case. The question involved therein was as to whether the State is entitled to impose Cess on Royalty and what is the consequence of such an imposition on the moratorium imposed by Section 2 declaration under the Mines and Minerals Development and Regulation Act 1957. By analysing the facts in that case it could be seen that, in India Cement’s case, State of Tamilnadu imposed a “Cess” on Royalty paid for the excavation of minerals. Hon’ble Supreme Court posed a question to itself that as to whether the said “Cess on Royalty” is justifiable as a demand of “land revenue” or “additional royalty” (Paragraph 11). Hon’ble Supreme Court in the said case set aside levy of cess by holding that levy of cess on royalty results in swelling of Royalty. Since the power to fix the Royalty was vested in the Union alone, the 7 Judges bench held that State cannot interfere with that vested right of the Union under Section 9 (3) of the MMRD Act. In this context Hon’ble Court equated the “Cess” to “enhanced royalty/additional royalty”. It was also declared that cess being a prerogative right but not permissible to be levied due to the Section 2 declaration. Describing the “cess” as “enhanced royalty” created the confusion. The Hon’ble Court held that by imposing tax/cess on royalty, in effect the State is increasing the royalty which they are not entitled to as per the mandate of Section 9. Following observation of Hon’ble Mr. Justice Sabyasachi Mukharji in paragraph 19 of the judgment throw amble light on the journey undertaken by the Hon’ble Supreme Court in India Cement's case (Supra) which reads as follows:

“ 19. Here, we are concerned with cess on royalty. One can have an idea as to what cess is, from the observations of Hidayathulla J., as the learned Chief Justice then was, in Guruswamy & Co. v. State of Mysore where at page 571, the learned judge observed:

“The word ‘cess’ is used in Ireland and still in use in India although the word rate has placed it in England. It means a tax and is generally used when the levy is for some special administrative expense which the name (health cess, education cess, road cess etc.) indicates. When levied as an increment to an existing tax, the name matters not  for the validity of the cess must be judged of in the same way as the validity of tax to which it is an increment.”    (underlining is by the author)

 In paragraph 30 it is observed as follows:

“30. It seems, therefore, that the attention was not invited to the provisions of Mines and Minerals (Development and Regulation)Act 1957 and Section 9 thereof. Section 9(3) of the Act in terms states that Royalty is payable under the Second Schedule of the Act shall not be enhanced more than once during a period of four years. It is, therefore for, a clear bar on the State legislature taxing royalty so as to effect amend Second Schedule of the Central Act.   In the premises , it cannot be right to say that tax on royalty can be a tax on land , and even if it is a tax, if it falls within Entry 50 will be ultra vires the State legislative power in view of Section 9(3) of the Central Act. In Hingir Rampur Coal Co. Ltd .v State of Orissa, Wanchoo, J. in his dissenting judgment has stated that a tax on mineral rights being different from a duty of excise, pertains only to a tax that is leviable for the grant of the right to extract minerals, and is  not a tax on minerals as well. On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the State Legislature.”         (underlining is by the author) 

Finally in paragraph 34 it is observed as follows:

“34.   In the aforesaid view of the matter, we are of the opinion that Royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature because Section 9 of the Central Act covers the field and the State Legislature is denuded of its competence under Entry 23 of Listed II. In any event, we are of the opinion that cess on royalty cannot be sustained under Entry 49 of List II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user of land.”    (uderlining is by the author).

11. What is prohibited is enhancement of royalty by the State, in view of the bar contained under Section 9(3) of the Act, because in principle it enhances the “Royalty” (refer the quoted portion in para 19 of the judgment). Even though what is levied is a cess, it results in enhancement of the royalty. Neither Entry 23 nor Entry 49 of the List II of Seventh Schedule of the Constitution supports this action on the part of the State Government.  In that context, Hon’ble Court said that as an outcome of the levy, the cess is in the nature of additional royalty since it is enhancing the royalty for the purpose of Section 9 of the Act.  It does not mean, levy of Royalty is an exercise of prerogative right. It only says that, by the exercise of prerogative right in imposing tax/cess, as an end result, it resulted in enhancement of royalty and that the swelling of royalty has gone against Section 9(3) of the Act.  Reading the sentence “Royalty is tax”, out of context, resulted in the current mystification.

12. At this juncture it is necessary to apply all the principles of interpretations that is available to understand and apply a precedent/judgment. While referring the judgment in India Cement's case (supra) to 9 Judges bench to settle the difference of opinion expressed by the 5 Judges bench in Kesoram (supra), Hon’ble Chief Justice was not informed that  the observation “Royalty is tax” is a not a precedent based on the factual question in hand and that it is only an obiter which never binds the subsequent benches of the Hon’ble Supreme Court. Reference order treated the judgment in India Cement’s case (supra) as a precedent to the proposition that “Royalty is tax”. What logically follows is not a precedent. In India Cement's case, 7 Judges never laid down a law to the effect that what was levied by State of Tamilnadu as “Cess on Royalty” in effect is “Additional Royalty”. However by interpretation one will be able to describe it in such a fashion. No doubt, the reasoning for arriving at the conclusion that the levy was unconstitutional appears to be little tricky. That is what logically follows and what logically follows is not a precedent. In that context judgment in India Cement's may need a second look but not for a reason never thought of by the Hon’ble Judges while rendering the judgment in the said case. It is pertinent to mention thatIndia Cement's case (supra) and Kesoram’s case (supra) are dealing with two different situations. In India Cement's case, levy of cess is on Royalty where as in Kesoram the levy is on mineral bearing areas which may be justified for the reasons stated there in the judgment. In effect prima facie there is no conflict on this aspect.  All that Kesoram clarified is that what logically follows as explained above is not the precedent for a proposition that “Royalty is Tax”. They had also referred to the difference between “prerogative right” and “proprietary right” reflected in Section 17 and 17-A of the MMRD Act 1957 but failed to quote the Section.  In nutshell if we presume that reference order in Mineral Area Development Authority etc. v.  M/s Steel Authority of India & Ors. reported in (2011 (2) KLT Suppl. 2 (SC))  lays down that India Cement’s case (supra) is a precedent for the proposition that “Royalty is a prerogative right (Tax)”, then the reference order to that extent is per incurrium  because it failed to consider Section 17 and 17-A of MMRD Act  1957. No doubt that reference order is not a precedent and that the principles of sub silentio will not strictly apply in the context but the fact remains that the said reference order failed to consider legislative provisions finally binding the issue in hand and the reference itself is nothing but a futile exercise on this issue. Hundreds of cases are getting tagged along and justice is denied for no fault of the litigant. Supreme Court long ago declared that ‘Justice delayed’ is ‘justice denied’.

Conclusion:

13. Therefore the reference of India Cement’s case reported in ((1990) 1 SCC 12) to larger bench for reconsideration on the point that “Royalty is tax” could have been avoided because the reference order failed to take into account Section 17-A(3) of Mines and Minerals (Development and Regulation) Act 1957 in which it is provided that private person is entitled to collect royalty when the mineral is vested in him. When a private individual is vested with this right based on title, it is a proprietary right and not a prerogative right. Since imposition of tax is a prerogative right it cannot be vested in a private person. What is Royalty is well settled long back in D.K. Trivedi & Sons v. State of Gujarat reported in (AIR 1986 SC 1323) in which all the dictionaries were referred and it was held that it is the proprietary right of the owner of the minerals, claiming his share of the profit from the removal of the mineral from the mine owned by him.  Secondly, Hon’ble Court cannot give a verdict against Section 17-A(3) of MMRD Act 1957 in the referred matter because the said Section 17-A(3) is not under challenge in any of these cases. The Legislative mandate reflected in Section 17-A(3) will have to be respected and the question has to be put to rest  as early as possible avoiding undue hardship to the litigants.

14. By way of abundant caution it is necessary to mention that this Article intends to deal with only one issue i.e. “Whether Royalty is tax or not” in the reference order in Mineral Area Development Authority etc. v. M/s Steel Authority of India & Ors. reported in (2011 (2) KLT Suppl. 2 (SC)) and the question framed as follows:

 “1. Whether 'royalty’ determined under Sections 9/15(3) of the Mines and Minerals (Regulation & Development) Act, 1957 (Act 67 of 1957, as amended) is in the nature of tax"

Other issues such as:

 “10. Whether in view of the declaration under Section 2 of the Mines and Minerals (Development & Regulation)Act, 1957 made in terms of Entry 54 of List I of the Seventh Schedule to the Constitution and the provisions of the said Act, the State Legislature is denuded of its power under Entry 23 of List II and/or Entry 50 of List II?"

are larger issues and distinct/different, and therefore are not intended to be dealt with in the present Article.

All those cases  which are waiting for a decision in 9 Judges bench on the question as to whether ‘royalty is tax’ can be delinked and heard in the light of Section 17 and 17-A of the MMRD Act 1957.

Anti-Corruption Bureau and Caesar's Wife

(By  V. Ramkumar,  Former  Judge , High  Court  of  Kerala)

After going through the verdict in  Vigilance and Anti-Corruption Bureau Directorate v. Neyyattinkara  P. Nagaraj & Ors.(2015 (4) KLT 640)whichhad virtually de-throned a Cabinet Minister of the State, I am penning down the legalities and illegalities of the said verdict which, in my opinion, could have been rendered after deeper study and research. Some of the findings recorded in favour of the writ petitioner (Directorate of Vigilance and Anti-Corruption Bureau) and some of the findings recorded against the writ petitioner, are in my view, wrong.

2. The finding in paras 10 to 16 of the verdict in question that the Factual Report submitted by the Investigating Officer (“I.O.” for short) in this case is part of the Case Diary (‘C.D.' for short) and, therefore, the Court is entitled to call for and peruse the same during the stage of inquiry or trial, is absolutely correct. This is because the Factual Report in this case was prepared after the registration of the F.I.R. and conclusion of the investigation. The Vigilance Manual also contemplates a Factual Report, inter alia, before the registration of the F.I.R. but after the conclusion of the preliminary enquiry/quick verification. This Factual Report prepared after the preliminary enquiry/quick verification but prior to the commencement of investigation cannot form part of the C.D. But even if the Factual Report, in this case, forms part of the C.D. and can, therefore, be called for and perused by the Court under Section 172(2) Cr.P.C., when the Court even at the stage of trial cannot use the contents of such Factual Report as evidence, is it permissible for the Court at the inquiry stage to rely on and reveal the contents of the Factual Report, is a question which has not been addressed by the learned Judge. So is the position regarding the Scrutiny Report of the Director in the Vigilance set-up which is on similar lines with that of the Central Bureau of Investigation (“CBI” for short).

3. I cannot endorse the reasoning given in paras 18 to 23 of the verdict in question for holding that Para 59 (ii) of the Vigilance Manual (which says that a Vigilance case should be registered within 10 days of getting orders from the Directorate) is not contrary to the Cr.P.C. To substantiate this point the learned Judge has relied on Section 158 Cr.P.C. and G.O.Rt. No. 4/2002/dated 3.1.2002 to hold that the Director of Vigilance And Anti-Corruption Bureau (“VACB” for short) should be deemed to be a superior police officer appointed under Section 158(1) Cr.P.C. and such superior officer has the power under Section 158(2) Cr.P.C. to give appropriate instructions to the I.O. This view is, according to me, wrong. Even if by the State Government approving the Vigilance Manual as per the above G.O., the Director could deemed to be a superior police officer appointed under Section 158(1) Cr.P.C., his power under Section 158(1) Cr.P.C. is only to submit before Court the report of the Officer-in-charge of the Police Station ( “SHO” for short) under Section 157(1) Cr.P.C.,  provided the State Government so directs. The Vigilance Manual or the G.O. referred to above do not direct that the report of the SHO under Section 157 (1) Cr.P.C. shall be submitted to the Court through the Director. Under Section 158(1) Cr.P.C., the only role given to the superior police officer is to submit the above report before the Court, and that too if the State Government so directs. Then the further role given to the superior police officer under Section 158(2) Cr.P.C. is not to give instructions to the SHO throughout the stage of investigation as has been assumed by the learned Judge. The instructions envisaged by Section 158(2) Cr.P.C. is only on matters touching the question whether the SHO should or should not enter on an investigation under Section 157(1) Cr.P.C. and the superior police officer has to record on the report his instructions, if any, so given and transmit the report without any delay to the Court. When the superior police officer has not been directed by the Government to transmit the report of the SHO to the Court, the question of such superior officer giving instructions to the SHO also does not arise. This is not a case where the superior police officer had taken over the investigation. Hence the power, if any, of the Director to give instructions to the I.O.during and after investigation, has to be located elsewhere. In any view of the matter, after the decision of the Constitution Bench of the Supreme Court in Lalita Kumari v. Government of U.P. & Ors.  (2013 (4) KLT 632 (SC) = (2014) 2 SCC 1), when the information received by the SHO is regarding the commission of a cognizable offence, then the SHO has no other alternative except to register an F.I.R. (save in those enumerated cases where he may conduct a preliminary enquiry. Of course, with utmost respect, I wish to say that I have my own reservations about the ruling in Lalita Kumari to the effect that the scope of preliminary enquiry is only to find out whether a cognizable offence is alleged in the information and that the veracity or otherwise of the information is foreign to the scope of preliminary enquiry. Corruption cases is one of the enumerated category of cases in which a preliminary enquiry is justified. It is pertinent to note that all the offences under the P.C. Act, 1988 are cognizable offences and if so in a case where the information given is regarding the commission of an offence under the P.C. Act, no preliminary enquiry may be necessary. The Constitution Bench having approved P.Sirajuddin v. State of Madras ((1970) 1 SCC 595) which in turn was apprehensive of the incalculable harm that could cause to a public servant and to the department he belonged unless prima facie evidence of guilt was made out before registering an F.I.R., was oblivious of the purpose behind the preliminary enquiry. Disgruntled elements who couldn’t curry favours from a public servant will be too willing to bolster up false cases against the public servant. The position of doctors will be still worse).Thus, Para 59(ii) of the Vigilance Manual which insists on the order of the Directorate for registering the F.I.R. is contrary to Section 154(1) Cr.P.C. as judicially interpreted in Lalita Kumari.

4. In paras 25 and 26 of the verdict in question, after extracting paras 89 and 120.6 of Lalita Kumari (supra) the learned Judge has concluded as follows:-

It was categorically held by the Constitution Bench that the provisions of the C.B.I. Manual overrides the provisions of the Code of Criminal Procedure.

I did not find such a proposition of law laid down in Lalitha Kumari. In para 89 of Lalita Kumari itself what is observed is that the C.B.I. Manual is not a statute, but only a set of administrative instructions for the internal guidance of the C.B.I. officers and it cannot supersede the Cr.P.C. The further observation in Lalita Kumari that the C.B.I. is constituted under the Delhi Special Police Establishment Act, 1946, (‘DSPE Act” for short) and derives its power to investigate under that Act and the powers of the C.B.I. under the DSPE Act cannot be equated with the powers of the regular State Police under the Cr.P.C., does not mean that the C.B.I. Manual overrides the Cr.P.C. This is particularly so, since neither the DSPE Act nor the P.C. Act, 1988, prescribes a different procedure for investigation by the police and, therefore, by virtue of Section 4(2) Cr.P.C., it is the Cr.P.C. which will apply regarding the procedure for investigation. In para 4 of M.C. Mehta v. Union of India (2008 (2) KLT Suppl. 628 (SC) = (2007) 1 SCC 110 a three Judge Bench of the Apex Court has categorically held that the C.B.I. Manual is subject to the provisions of Cr.P.C. and in case of a conflict between the two, the Cr.P.C. shall prevail.

5. Para 72(1) of the Vigilance Manual reads as follows:-

“72(1). After completion of the investigation a report giving the facts, evidence and circumstances in each case (both for and against the prosecution) shall be forwarded by the Deputy Superintendent of Police to the Superintendent of Police concerned, who will forward the same along with his Forwarding Endorsement to the Director, through the IGP/DIP of Police concerned for further transmission to Government (In cases personally investigated by the Superintendent of Police or other senior officers, the Factual Report will be prepared by them.). The final decision on a Factual Report either to prosecute an accused or subject him/them to an enquiry by Vigilance Tribunal or otherwise will be taken at the Directorate after assessing the quality and quantum of evidence”.

After extracting Section 173(3) Cr.P.C. in para 27, the learned Judge observes in para 28 that the Superior Police Officer appointed under Section 158(1) Cr.P.C. has got the power to scrutinise the final report in case of a general or special order to that effect. In para 29 of the verdict in question the learned Judge specifically held that there is no conflict with regard to the power of the Director under para 72(1) [wrongly mentioned as Section 72(1)] of the Vigilance Manual and Section 173 (3) Cr.P.C. But the learned Judge had already held in para 24 that the Factual Report submitted by the I.O. is not the final report under Section 173(2) Cr.P.C. If the Factual Report is not the final report and if what the Director, as superior Police Officer, can scrutinise under Section 173(3) Cr.P.C. is only the final report and not the Factual Report, then there is an apparent conflict between Para 72(1) of the Vigilance Manual and Section 173(3) Cr.P.C. In para 29 itself the learned Judge has found that the Director has not gone through the final report in this case. If as a matter of fact, there is no conflict between Para 72(1) of the Vigilance Manual and Section 173(3) Cr.PC, then there is no dispute that as per para 72(1) of the Manual the final decision on a Factual Report either to prosecute the accused or to subject him to an enquiry by the Vigilance Tribunal or otherwise, will have to be taken at the Directorate and not by the I.O. That was precisely what the Director did in this case. If, as found by the learned Judge, there is no conflict between Para 72 (1) of the Vigilance Manual and Section 173(3) Cr.P.C., then what the Director did, namely, directing the I.O. to file the final report before Court after considering the foregoing discussion in the Scrutiny Report of the Director would be perfectly valid. But the learned Judge has contradicted himself by saying in Para 31 of the verdict that the Director has virtually substituted the opinion of the I.O. with his opinion in the final report. In the last paragraph the learned Judge has remarked that as per para 72(1) of the Vigilance Manual and Section 158(2) Cr.P.C. the Director can give timely directions to the I.O. only during investigation and not after that. Accordingly the learned Judge concluded that the Special Judge was right in ordering further investigation which ought to have been ordered by the Director instead of directing the I.O. to file a final report in tune with the scrutiny report.

6. I am afraid that the learned Judge has missed the scope and amplitude of Sections 158 and 173(3) Cr.P.C. and Para 72(1) of the Vigilance Manual. As already stated, the purpose of appointing a superior police officer under Section 158(1) is for the limited purpose of submitting before Court the report of the SHO under Section 157(1) and his power to give instructions to the I.O is not available to him throughout the stage of investigation. His role ends with the submission of the report with the instructions, if any, given by him and recorded on the report. Even this power he can exercise only if he is directed to do so by the State Government. Likewise, if such a superior police officer has been appointed under Section 158(1) Cr. P.C., the final report under Section 173(2) Cr.P.C. also can be filed through him before Court and that again if the State Government so directs. (See Section 173(3) Cr.P.C.). Para 72(1) of the Vigilance Manual serves a totally different purpose. Although the Factual Report by the I.O. is not the final report under Section 173(2) Cr.P.C., it is a report submitted after the completion of investigation by the I.O. It should not only contain the incriminating evidence and circumstances but also the exculpating circumstances (i.e. both for and against the prosecution). If it were to precede a refer report or a closure report it need only contain the circumstances against the prosecution and if it were to precede a charge-sheet, then it need only contain the incriminating circumstances. Para 72(1) further says that the final decision on the Factual Report either to prosecute the accused or to subject him only to an enquiry before the Vigilance Tribunal will be taken at the Directorate after assessingthe quality and quantum of evidence. This is the organisational set up of the Vigilance Department which is on similar lines with that of the C.B.I. Even if the Director were to be treated as a superior police officer within the meaning of Section 158 Cr.P.C., in the absence of a Government direction to the Director to file the report under Section 158(1) or Section 173(3) Cr.P.C., he cannot submit both the said reports. The SHO or the I.O. himself should file those reports. The power under Section 36 Cr.P.C. may, perhaps, cloth the Director to oversee the investigation by the I.O. and issue appropriate directions or guidelines to the I.O. The decision of the Apex Court in R. Sarala v. T.V. Velu  (2000 (2) KLT SN 34 (C.No. 40) SC =(2000) 4 SCC 459also indicates that it is not the Public Prosecutor but the Superior Police Officer who has to advise the I.O. in the matter of investigation and the role of the Public Prosecutor is inside the Court. InReghuchandrabal v. State of Kerala (2009 (4) KLT 245), Mr. Justice M. Sasidharan Nambiar held that the Factual Report submitted by the I.O. is not the final report and the Government on receipt of the Factual Report through the Director of Vigilance, were entitled to disagree with the opinion of the I.O. to file a refer report and that eventhough what the Home Minister ordered in that case was re-investigation, it was rightly clarified by the Director of Vigilance that the proper course open was to conduct further investigation under Section 173(8) Cr.P.C. The direction by the Director of Vigilance to the I.O. to conduct further investigation, was accordingly upheld by the High Court of Kerala. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke  (2015 (1) KLT SN 51 (C.No. 68) SC = (2015) 3 SCC 123), the situation was almost identical except that in the place of the Director of Vigilance it was the Director General of Vigilance in the State of Maharashtra where also there is a similar set-up in the Vigilance Department. In that case the I.O. submitted a Factual Report proposing to prosecute A1 (a Sub Divisional Magistrate) and A2 (Sheristadar of the SDM) for offences under Sections 7 and 13(1)(d) of the P.C. Act. In the case of A1, the Director General of Vigilance disagreed with the I.O. and held that A1 could not be prosecuted since there was only evidence of acceptance of bribe and there was no evidence of demand of bribe and that the authenticity of the electronic evidence (compact disc) was not proved according to law. The Vigilance Special Judge agreeing with the view of the Director General of Vigilance, accepted the closure report as against A1. At the instance of the de-facto complainant the Bombay High Court set aside the order of the Special Judge dropping the proceedings against A1 and directed that A1 was also to be prosecuted. In further appeal before the Apex Court, the view of the Special Judge was preferred by the Supreme Court to that of the High Court. If these two decisions were adverted to and followed by the learned Judge, he could not have found fault with the Director who had faithfully adhered to Para 72(1) of the Vigilance Manual without in any manner exceeding his limits. There is not even a whisper of the above binding decisions in the verdict in question, in spite of the fact that those citations were specifically pleaded in the Writ Petition (a copy of which was got down and perused by me). If according to the learned Judge there is no conflict between Para 72(1) of the Vigilance Manual and the Cr.P.C. and if as per Para 72(1) and as per the aforesaid binding precedents, the Director of Vigilance was entitled to take a decision as to whether the accused was to be prosecuted or not after assessing the quality and quantum of evidence and after studying the law on the point, the criticism made by the learned Judge in paras 29 and 31 against the Director, Mr. Vinson M. Paul (known for his unquestionable integrity and impartiality) even without hearing him, that the Director does not have unbridled power to direct the I.O. to file a final report in a particular manner, was uncalled for, being opposed to Para 72 (1) of the Vigilance Manual and the binding judicial verdicts adverted to above. It is significant to note that in the Scrutiny Report the operative portion of which has been extracted in para 5 of the reported decision, the Director has not directed the I.O. to file a refer charge or closure report. He has only directed the I.O. to file the final report before Court after considering the foregoing discussions in the Scrutiny Report. The I.O. evidently on being convinced about the absence of the necessary ingredient in the offences alleged, was, without demur filing a closure report for dropping the proceedings. One fails to see as to how the learned Judge could refuse to advert to the binding judicial precedents covering the field and embark upon a different interpretative exercise brushing aside the aforesaid precedents. If the rulings cited by the writ petitioner were to be followed, then whatever the Director of Vigilance did was perfectly legal and in accord with Para 72(1) of the Vigilance Manual. Of course, the final opinion formed by the I.O. either to prosecute or not to prosecute the accused may not be binding on the Court. Depending on the materials collected by the I.O. during the investigation, the Court has the right to differ from the final opinion reached by the I.O. and either drop the proceedings or take cognizance of the offences, if any, revealed or direct a further investigation. (Vide M/s. India Carat Pvt. Ltd. v. State of Karnataka  (AIR 1989 SC 885 (3 Judges); Gangadhar Janardan Mhatre v. State of Maharashtra  (2004 (3) KLT SN 77 (C.No.107) SC =(2004) 7 SCC 768); Minur v. State of Bihar (AIR 2006 SC 1937); Aleque Padamsee v. Union of India  (2007 (3) KLT 1028 (SC) =(2007) 6 SCC 171)).

7. What was the great hurry in handing down the verdict without adequate study or research and topple the Vigilance set-up in the State which has been in vogue for more than two decades? The force which presumably impelled the Vigilance Directorate to approach the High Court consequent on the Special Judge finding fault with the Director in acting according to Para 72(1) of the Manual, has been repressed with double vigour by the verdict in question. The organisational framework and equilibrium of the Vigilance Directorate stands dislocated and the operational freedom of the Director under the Vigilance Manual stands curtailed on a reasoning which unfortunately does not coincide with the law as judicially settled.

8. In para 39 of the verdict in question destroying the homogeneity of the judgment we find the following observation:-

“39. I am reminded of the Shakespearian saying that ‘Caesar’s wife must be above suspicion’ . The fundamental principle that justice is not only done but it should appear that it is done, is applicable not to the judiciary alone; whereas, it is equally applicable to the other two pillars of the State also. In a case like this, it is quite natural that the common man may entertain a feeling that there cannot be a proper investigation by a State Machinery when the accused, against whom fingers are pointed out, is continuing as a Minister.”

Thereafter, the learned Judge left the question to the conscience of the accused. The innuent message is loud and clear. While it is unfortunate that in this country the media presumes every person accused of an offence to be guilty, a court of justice should be free from any such predilection. I refrain from making any comment on the legality, morality or propriety of the above observation made in a Writ Petition filed by the Directorate of Vigilance and Anti-Corruption Bureau. My present objection is regarding the authorship of the statement attributed to Shakespeare that Caesar’s wife must be above suspicion. As far as I could gather, William Shakespeare never made any such statement, nor did he doubt the nuptial fidelity of Pompeia. The statement comes from Plutarch’s account of Julius Caesar’s justification for his decision to divorce his wife Pompeia consequent on the scandal which was spread pursuant to the detection of the libertine Publius Clodius (who was in love with Pompeia) in the house in which the women of Caesar’s household were celebrating a festival.

9. The Judge who rendered the verdict in question is one of my favourites. My endeavour through these articles is not to target any Judge or Advocate who constitute two sides of the same coin in the dispensation of justice. My concern is for the subordinate judiciary the members of which may be tempted to follow a wrong judicial verdict as a binding precedent unless adequately educated. If my articles help to enlighten both the Bench and the Bar and clear any lingering doubts, then my mission will be fulfilled.