The Plight of the Woman Lawyer

(D. Jameela Devi, Advocate, Ernakulam)

The issue:--The Year of the 'Girl Child' (1990) has spurred me to write these lines. Women have always been kept under constant servitude and viewed in contempt for centuries together. From the pages of history we can recollect the dominance of the male over the female. In India, once there existed female infanticide and 'Sathi'. Of late, these crude practices have revived again. Manu's Dharmasasthra proclaims 'Na Sthri Swathanthryamarhathi' -- that no woman deserves freedom. She is always under the surveillance of a man--of her father, as a daughter; or her husband, as a wife; and of her son, in her old age!

Though the symbol of Justice is a blind-folded woman, the fact is that Justice is a system created, fostered and continuously shaped by man. The emergence of women in this field has been new and relatively slow, as the advancement of education among women has remained at a low key owing to the acceptance and adoption of human values by the people at large in a traditional way.

Let us now trace the entry of women into the legal profession. In the United States, Myra Bradwell fought her case right upto the Supreme Court and lost in 1872, and the first woman was admitted to the Harvard Law School in 1950, after a prolonged struggle - social, political and legal, extending over a period of 80 years. This sensitive controversy was however resolved in India much earlier by the United Provinces Act 1923 which ordained that women could be enrolled as legal practitioners and could not be debarred from the practice of law merely because of their sex. The women in England also, however, successfully fought their way out and compelled the Government to amend the laws and permit the entry of women in the profession of law in terms of equality with their male counterparts, by the enactment of the Sex Disqualification (Removal) Act, 1919. Indian women also were denied of this right until the High Court of Allahabad took the lead and allowed the application of Miss Cornelia Sorabji to practice law, by its epoch making judgment of August 1921. She was the first women to have been enrolled as an advocate in India.

Now the study of professional occupations has become so increasingly popular that people consider it as a process of institutionalism, as a formalisation and standardisation of education. The objective of such professionalisation is to achieve for any occupation a higher level. Consequently, emancipation of women in the field of legal practice also has increased.

The sex-wise distribution of different categories of legal professionals in India clearly indicates a complete male dominance at all levels, and records a decline in the proportion of women lawyers over the decade 1961-71. However, according to Bar Council of India, in 1981, the total number of lawyers was 2,21,280, of which 5,779 were women, comprising 2.5% of the total. Very many comparative studies of different States reveal that women lawyers are only in the thin minority. An analysis of membership pattern at the Punjab and Haryana High Court Bar reveals? the occurrence of a substantial increase in the entry of women to the Bar during the last five years. In 1982-83, there were only 16 women lawyers in a total population of 713, making up 2.24% of the total. In 1986, there were 35 women lawyers in a total population of 932, making up 3.86%of the total. However, it was observed during the field work that not all the lawyers enrolled at the Bar are practising lawyers. Quite a few drop out of the profession after few years, or take up other occupations, and many of them allegedly enroll themselves for extraneous considerations, such as keeping a status symbol or evasion of income tax.

Why women drop practice after a few months? The reasons are many, of which some are given below.—

Entry: A woman's entry in the legal profession is dependent on her aspirations, expectations and beliefs about the nature of rewards offered by the occupational group and on her own capacity. Her choice becomes still more difficult in view of the complete male dominance of the profession. The truth is that it is much easier to enter the legal profession than to survive in it. At present, the legal profession has assumed the character of a keenly competitive trade, in which professional efficiency stands second to ability to acquire professional work with dexterity, in which the rule of the jungle prevails. Therefore, it is said that success in the present legal profession requires" the mind of a jackal, the tongue of a parrot, the heart of a lion and the hide of an elephant." Consequently, those who have the courage to join the profession and continue with it are mostly those who have close relatives such as father, husband or uncle, who can not only protect them from unnecessary harassment and criticism but also launch them into the profession in the initial stages.

(2) Procurement and retention of work: Procurement of work is the most difficult task for lawyers. The traditional mode of procuring work is through their personal reputation and standing at the Bar and through their network of social relationships; especially through the colleagues at various levels. Such being the case, the legal profession becomes the monopoly of a few seniors, and this is the constant feature of the profession at all times, which encourages the juniors to resort to unethical practices in the procurement and retention of work. Gandhiji points out that touting is a typical and representative character of the Bar because of its practical utility in the rise of a lawyer to the higher echelons of professional hierarchy.

Under these circumstances, procurement of work becomes more problematic for women lawyers, as a woman cannot be as daring and outgoing as a man. The cultural limitations such as segregation of sexes, the early socialisation effects on appropriate sex role behaviour and attitude, and later deferential expectation from girls and boys all through their adolescence and adult life, make them unable to adopt such practices. Hence, most of them are contented with being tagged on to their seniors or relations within the profession. Therefore, procurement of work is comparatively more difficult for women because of their in-built and inhibited patterns of socialisation behaviour on the one hand and the male-dominated highly competitive and generalised nature of the occupation of independent practitioners, on the other.

(3) Practical difficulties: In our country, the progress of public awareness and education is so primitive that the traditional approach to women and their natural function has not undergone much change. Adding fuel to fire, men in the profession do not lack some of the 'qualities' that are traditionally ascribed to women. Jealousy, intrigue and pettiness, nowadays, are not peculiar to the female members of the Bar. Ordinarily, successful men are traditionally chauvinistic and having a deep-down feeling of resentment towards a competent woman lawyer, who has fought her way into the profession, without pleading for their patronage or paying their obeisance. Some, however, are said to be 'smoother' in their behaviour, that is say, instead of outright brow-breating, they are meanly provocative, maliciously amusing or deliberately denunciatory. Very few confront a woman lawyer, with the respect they would accord to their male equals.

Attitudes of Judges and judicial officers are quite encouraging to begin with. Though, generally, it is felt that some of them are of the view that a woman lawyer is not required to be treated any differently than her male counterpart in a similar situation, the position in Kerala is very much different. It is sarcastically said that "a persistent women lawyer embarrasses the Judge, a timid woman lawyer oppresses the Judge, and a meritorious woman lawyer baffles the Judge"; with a question in his mind, 'Hasn't she anything better to do?' The pages of 'THE LAWYERS' (a legal periodical published by Mrs. Indira Jaisingh, Advocate) offer dismal reading in this respect, if what is published is correct.

(4) Competence: Some women lawyers have come up with remarkably ingenious ideas to overcome cultural constraint they suffer from. Levels of competence vary from person to person. In spite ofall the obstacles in the field, some women lawyers have reasonably high reputation in various aspects of practice, such as dealings with clients, drafting and pleading, and presentation in court. They also get work independently, ie. work comes to them on the basis of their reputation and standing at the Bar. The rest are those who cannot boast of such accomplishments as they stick on to their patron-seniors to hand over the work to be done. The more influential the patron, the greater the amount of work. This category often relates to the wives and daughters of senior lawyers, businessmen and bureaucrats.

Suggestions: Though not exhaustive, I give below some possible steps which would help women lawyers:-

(i) Though girls are being encouraged to enter professions, they are given less freedom of movement than boys at the domestic level. This kills their initiative and makes them dependent on the malefolk. The girls should be given deserving freedom.

(ii) At times, educational investment is symmetrical, but higher expectations are placed on the sons - the daughters are expected to be married off. This gender discrimination at the family level is not justifiable.

(iii) In the legal profession itself, women lawyers often experience disruption of practice and detrimental effects during the period of advancement pregnancy, childbirth and lactation. There should be a group insurance scheme from which periodical payments should fee made available to the concerned woman lawyer during such period, just as maternity benefits are granted to women in employment.

(iv) Organizational and State support systems can encourage women in the profession - through nominations on various State panels, appointments as Law Officers and other such avenues in the legal system --and they can compete with men successfully.

(v) The introduction of duel system in the management of briefs will also minimize the difficulties in the procurement of work for women lawyers.

Conclusion: Women in the legal field have to wage a relentless war for their emancipation from the age-old bounds and bonds. The structure of the family, the nature of women, the nature of the legal profession, are all immutable and inscrutable factors. But it is said that once women are given the opportunity to show their merit, then, inspiteof the cultural and institutional constraints, they rise to the occasion and show that they can compete with men on equal basis. Organizational reforms are also urgently required. The emergence of legal firms, with men and women lawyers as partners, will not only help women lawyers but curb the malpractices in the profession and uphold its dignity. Moreover, the availability of specialised and standardised legal services will also help relieve overcrowding and contribute to the autonomy of the profession, and at the same time make it ideologically neutral and independent. However, women who prove their mettle in both the domestic and professional spheres, may, in a course of time, help to overcome and even change the primitive, traditional male superiority-complex and bring about a real acceptance and recognition for women in the legal profession.

Maintenance of Books of Accounts under S. 44-AA of Income Tax Act by Professionals and Businessmen

(R. Krishna Iyer, B.Com.,F.CA., Chartered Accountant, Cochin)

A new Section has been inserted in the Income Tax Act by which certain category of tax payers have to maintain books of accounts. The object of the new provision is to enable the Income tax Officer to compute the correct income of the assessee and before the introduction of this section the assessee could also estimate the Income on some basis. The new Section casts an obligation on tax payers carrying on the Professon of Law, Medicine, Engineering, Architecture, Accountancy, Technical Consultancy, etc. to maintain books of accounts irrespective of the Income earned. In the case of persons who are in Profession whose Gross Receipts exceeds Rs. 60,000/- have to maintain books of accounts. Similarly in the case of persons from business whose turnover or Gross Receipts exceeds Rs.2,50,000/- have to maintain books of accounts. From the above it is very clear that the maintenance of books of accounts have no connection with the Income earned by the persons it depends on their Gross Receipts irrespective of their expenses, for earning such income or their Net Income. Therefore if the Gross Receipts of an Advocator a Doctor or any other Professional person exceeds Rs.60,000/- per year which works out only Rs.5,000/- per month, he is liable to maintain the books. Similarly in the case of a businessman or a Contractor whose contract receipts exceeds Rs.2,50,000/- per year (average daily sales works out to Rs.700/-) has to maintain books of accounts. The result is, taking into account the inflation and the price level, any moderate Professional or businessman would be liable to maintain books of accounts.

There are specific objects in introducing this provision in the Income tax Act. Recently in the Income tax Act certain provisions have been introduced restricting payments by cash for claiming deductions from Income. Individual payments exceeding Rs. 10,000/- has to be made by crossed cheques/drafts, otherwise such expenses would not be considered for the purpose ot deduction. Similarly the Loan repayments or receipts have to be made by Account Payee Cheques/Drafts when the payment exceeds Rs. 20,000/-. There is also a provision in the Income tax Act for the Compulsory Audit of accounts under certain condition. All these provisions are laid out in the Act in order to regulate, the transactions and to bring more and more assessees under the net of Taxation and also to control the circulation of black-money. One of the main reasons for inflation is the increases in prices due to the use/circulation of black-money and the Government is taking all possible measures to control the said circulation.

One of the measures to control the circulation of black money is to press for mandatorily maintaining books of accounts by the tax payers. An assessee may be correctly disclosing his turnover and his income in his return, but if no books of accounts are maintained, there are enough chances or facility for him to circulate either his or others black-money. Though he is declaring his correct income in the return, it cannot be said that he is not evading Income tax in such circumstances. By introducing the compulsory maintenance of accounts the department would be able to find out/restrict such type of circulation of black-money to a certain extent. Moreover the restrictions in payments etc. can be enforced only when books of accounts are maintained.

This new Section was introduced in the Income tax Act in the year 1976. The following books of accounts have to be maintained by the Professionals:

(a) Cash Book

(b) Journal (where the accounts are maintained on Mercantile System)

(c) Ledger

(d) Carbon copies of bills, serially numbered wherever the sum exceeds Rs.25/-

(e) Original Bills, Receipts for expenditure, vouchers exceeding Rs.50/-

In the case of Doctors:

(a) A daily case Register.

(b) An inventory on Stock of Medicines etc. as on first and last day of the previous year.

In the case of businessmen and contractors, no books of accounts have been specified but the books of accounts should be maintained as may enable the Income tax Officer to compute the total Income in accordance with the Provision of the Act.

Non-maintenance of books of accounts would attract penal action. Earlier in case the return of income of the assessee is accepted and the tax computed by the Income Tax Officer and the tax as per the return of Income is same, even in the absence of books of accounts the Income Tax Officer was not able to levy penalty and the position prevailed till 1-4-1989. In other words, if the Return of Income is accepted, non-maintenance of accounts would not attract levy of penalty. As per the existing policy, the Income Tax Department is accepting 97% of the Income Tax Returns without calling for the presence of assessee, or the records. In other words, only 3% of Returns are scrutinised in detail for which Income Tax Officer calls for the evidences. As mentioned earlier, for 97% of the cases, the Return are accepted and as such there will not be any additional demand on completion of these assessments. The amount of penalty is reckoned as a sum which shall not be "less than 10%" but which shall not exceed 50% of the amount of tax, if any, which would have been avoided if the Income returned by such person has been accepted as the correct income. For Example:

If the tax due as per the Return of income of the Assessee is Rs.2,000/- and after the scrutiny if the Income Tax Officer accepts the Return and there is no further demand, the penalty for the non-maintenance of accounts cannot be levied till 1-4-1989, but if as per the assessment, if there is an additional demand of Rs.1,000/- and if the assessee has not maintained books of accounts, the Incometax Officer would be able to levy a penalty, minimum of Rs.100/- (10% of Rs.1,000/-) or a maximum of Rs.500/- (50% of Rs.1,000/-).

In short till 1-4-1989 the penalty of non-maintenance of accounts could be levied only on the difference in Income Tax as per the Return and assessment.

However this provision has been amended w.e.f. 1-4-1989. If any person fails to keep and maintain books of accounts as per the Act or Rules, the Income Tax Officer can levy a minimum penalty of Rs.2,000/-(which can be extended uptoRs.1.00 lakh).

Therefore after the Amendment it is not necessary that there must be difference in Income Tax to levy penalty. It may also be noted that the levy of penalty has nothing to do with the Income. If the Statements of Accounts are not attached along with the Return, and the Income Tax Officer, finds that the assessee who is liable to maintain books of accounts, have not done so could initiate penalty proceedings. There is every chance that the Income Tax Officer would levy penalty, even in the first year of assessment itself. He may impose only minimum penalty in the first year but if default is continued he may impose the maximum penalty in the subsequent years, and in the case of Advocates, they may not get a lenient view from the Income Tax Officer. Moreover, eventhough the Section says: "may" it may be interpreted as "shall", in view of the fact that there is no provision in the Act, to condone if there is reasonable cause. Eventhough this provision was introduced as early as 1976, for the reasons stated above, there were some difficulties in levy of penalty for the non-maintenance of books of accounts, but after the amendment, the department has started initiating penalty proceedings and therefore it is absolutely necessary that the professionals and the businessmen should maintain books of accounts in order to escape from levy of penalty.

The amount of Rs.60,000 and Rs.2,50,000 was fixed in 1976. Considering the inflation and consequent increase in fees to the professionals it is high time that the Government may increase the limit of Rs.60,000 and Rs.2,50,000 to atleast Rs. 1,20,000 and Rs.5,00,000 respectively.

Regular books of accounts would not only help the assessee to prepare his Return of Income, but in case of scrutiny assessments, and if the Income Tax Officer is insisting to prepare the Wealth Statement of the assessee, this could also be helped. Suppose the assessment year is 1989-90 it relates to the financial year 1-4-1988 to 31-3-1989, the Income Tax Officer will call for the Assets & Liability Statement of the assessee as on 31-3-1988 and 31-3-1989, in order to ascertain the increase in wealth of the assessee in the year. The increase in Wealth should correspond to the Income returned and the excess if any would be treated as unaccounted Income of the year. Thus regular books of accounts are maintained, it would be easier to prepare the statement of wealth. Similarly, the assessee would be liable to pay Wealth Tax if his Assets exceed Rs.2,50,000/-, subject to certain exemptions. In the absence of regular books of accounts, it will not be possible to ascertain his net wealth to file the Wealth Tax Returns. Therefore regular books of accounts certainly helps the assessee in this respect. The assessee may also invest amounts in NSC, Fixed Deposits etc. and in his busy schedule of his/her Profession, there are possibilities of misplacing the receipt and he may forget to renew or encash the same on the due dates. The books of accounts should help him or remind him of the existence of such deposits. In the case of businessmen and contractors, one of the main sources of funds is Bank finance, and it has become necessary to furnish the Assets of the assessee to the Bank along with the Application for Loan and for the renewal of the same. The Professional people also may require loans from Banks or financial institutions to purchase cars, equipments, or flats, etc. for which also along with the Application, financial statements have to be attached.

From the above it is very clear that proper maintenance of books of accounts are essential and helpful not only for the purpose of Income Tax and Wealth Tax but also would serve the individual professionals in their own interests.

Beneficiaries under the New Motor Insurance Law

(M.N. Srinivasan, Advocate, Banglore)

The provisions of the Motor Vehicles Act 1939 and in particular those of Chapter VIII relating to the Insurance of Motor Vehicles have been quite familiar to the members of the legal world connected with the dispensation of justice since over fifty years. During these years the provisions of this Chapter have suffered major amendments two or three times mainly on the lines of the changes in the English Road Traffic Acts. This was quite natural as the original provisions of Chapter VIII of 1939 Act itself was on the basis of English Act of 1930.

2. This Act has again been extensively overhauled by the 1988 consolidating and amending Act. Here again the changes in the provisions of the Chapter relating to Insurance of Motor Vehicles has been to some extent on the lines of the changes made in the English Act of 1972. All the while this process of adjusting our Laws from time to time to the changes in the corresponding English Acts has been partly with a view to get the benefit of the interpretation of those provisions by the superior English Courts.

3. Confining our attention to S.95, of the 1939 Act, which lays down the requirements of policies to satisfy the provisions of Chapter VIII and the corresponding provisions namely S.147 of the 1988 Act which is word for word the same as that of the old Act except for the deletion of one proviso to the section, it is interesting to examine whether the provisions of the section could at all have been drafted more elegantly. At any rate it appears from what follows that there is avoidable overlapping and consequent want of clarity.

4. S.147(l)(b)(i) is the same as S.95(l) (b)(i) of the old Act and refers to the requirement that the policy should cover the risk of death or injury "to any person of a Third party caused by the use of the vehicle" Third party has been construed as any person other than the Insurer and the Insured, who are the two parties to the Policy (Viscount Simon L.C. in Digby v. General Accident (1942) 2 All. E.R. 319 HL). Here the words 'person' and 'vehicle' are both unqualified.

Hence this clause is comprehensive enough to include risks caused by the use of any kind of vehicle, that is, whether it is a private Motor vehicle or a public service vehicle which is defined as one used for the carriage of passengers for hire or reward etc. It is also comprehensive enough to include the risk to 'any person' other than the Insurer and the Insured, that is, whether he is a passenger in the vehicle or not and whether he is a gratuitous passenger, or one being carried for hire or reward or whether he is an employee of the Insured or not. It may therefore be safely said that apart from liabilities under the Workmens' Compensation Act 1923 the amplitude of this clause (l)(b)(i) of S. 147 by itself is quite comprehensive to cover the Act liability in respect of all persons other than the Insurer and the Insured caused by or arising out of the use of all kinds of motor vehicles for which the Act intended to make provision.

5. If what is stated above is correct we will have to examine in what way the second clause of S.147 (l)(b) adds to or takes away from what clause (i) of S.147 (l)(b) comprehensively provides. In the first place it must be pointed out that the opening words of clause (ii) "against the death of or bodily injury to" made no sense as no policy of insurance can be taken against the death or injury but only against any liability that may be incurred in respect of the death of etc.

6. Now clause (ii) of S.147(l)(b) states that the policy must cover the risk of injury to any passenger of a public service vehicle caused by the use of the vehicle. This it is already seen above is covered under clause (i) itself, because clause (i) covers the case of injury of all persons by the use of all kinds of vehicles. Hence this clause (ii) is redundant, unless it can be held that' vehicle in clause (i) does not include public service vehicles. This cannot be. Again Clause (ii) is silent about the case of the public service vehicle causing death of or injury to a third party who is not a passenger that is not being carried in the vehicle. For this again recourse is to be had to clause (i) as pointed out above. Thus in both ways cl. (ii) is ill conceived and serves no purpose.

7. Proviso (ii) to S.95(l) of the old Act stated that the liability to passengers also must be covered only in the case of vehicles in which passengers are carried for hire or reward or by reason of or in pursuance of the contract of employment. In view of this proviso it was held in Pushpabai v. Ranjit G. and P. Company 1977 SC 1735, that gratuitous passengers in private cars are not required to be covered for death or injury. Now that this provision (ii) is omitted altogether in the 1988 Act it follows that passengers in private cars as well as in public service vehicles are also to be covered whether they are gratuitous or fare paying passengers. It must be pointed out here that the question whether ticketless passengers in buses are entitled to be covered or not was left open by the Supreme Court in MPSRTC v. Zenabai, 1977 SC 2206 under the 1939 Act.

8. If there is any ambiguity in the legislation the "question has to be resolved having regard to the under lying purpose of the provisions of Chapter 8(now Chapter XI). That is a sensitive process which has to be accommodate the claims of society as reflected in the purpose". Please see Motor Owners Insurance Co. v. J.K. Modi, 1981SC 2059.

9. Such defective drafting of Legislation when pointed out should be examined early and corrections suggested by the Executive or the Law Commission in order to avoid wasteful litigation. Arecent PTI report of 12-ll-1990shows that Motor accidents which caused 5106 deaths and 37731 injuries in 1960 were responsible in 1988 for 255278 accidents in which there were 49218 deaths and 206060 severe injuries.

10. It therefore appears quite in order to interpret thedeletioninthel988Act of Proviso ii to S.95(i) of the old Act as an indication that the purpose of the legislation is that all passengers being carried in private cars or in public service vehicles whether they are gratuitous or fare paying should be covered by compulsory insurance policies required under Chapter XI of the 1988 Motor Vehicles Act and paid just compensation for the suffering caused to them.

International Law - Time of Reckoning

(By M. Mathew, Advocate, Ernakulam)

The United States of America is rapidly approaching the point in the Middle East crisis where a choice must be made. America cannot afford to let its first post Cold War act of global leadership drift into a stalemate between a war of controversial purpose or the abandonment of goals so adamantly reiterated by both President George Bush and the entire International Community.

Arab neighbours of Iraq will surely note that none of the proposals in the public discussion would reduce Iraq's military pre-eminence or restore Kuwait completely. If they conclude that they will be condemned to live with a dominant Iraq they will begin their own negotiations. Recent remarks by Saudi Arabian Defence Minister Sultan Ibn Abdul Aziz suggest that the haggling has already began.

The common feature of all the schemes leading to negotiations is that they undermine the military option by consuming time, exact no penalty for aggression, looting, a country or taking hostages, and leave as the only disputed issue the extent of the aggressor's gains. Once Iraq has faced down U.S. and U.N. terms, such a force would sooner or later become hostage to revolutionary Iraq, fundamentalist Iran and events substantially out of everybody's control. Saddam Hussein's intransigence may well reflect the calculation that every passing week erodes the likelihood that the forces assembled in the desert can be used against him and that if war appears imminent he can always defuse the crisis by opening negotiations.

Choosing a war will be neither easy nor attractive and Washington is waiting for a suitable provocation. It is hard to see what more Iraq might do to justify military action than to engage in naked aggression to destroy the nation of Kuwait and take thousands of hostages.

The World has no interest in weakening Iraq to a point where it becomes a tempting target for covetous neighbours. If war proves unavoidable, our objective should be not to destroy Iraq but rather to raise the cost of occupying Kuwait to unacceptable levels while reducing Iraq's capacity to threaten its neighbours.

Without doubt the military option would prove painful. It might trigger major demonstrations in many Muslim countries. It could well evoke the next wave of terrorism. Saddam Hussein might also spread the conflict. But these dangers must be weighed against the risks of an even larger conflict later on if a demonstration of American impotence leads to a collapse of moderate governments and the disintegration of all order.

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.)