Not Supplant, Only Supplement

(By K.Ramakumar, Senior Advocate, High Court of Kerala)
E-mail : ramakumarassociates@gmail.com     Ph.0484-2376428

“Not infallible, but Supreme.” In the Judicial hierarchy, the Supreme Court is infallible because it is final.

“The Parliament enacts the laws, the executive implements them, and we interpret them.”This is how the interaction between the three organs of the Constitution was tersely put by former Chief Justice Shri Sanjeev Khanna. Can one of the organs step into the area earmarked for the other? Can the executive, for instance, declare an enactment invalid? Can the Parliament declare a person within its liking to be innocent of a crime? Obviously not. This embargo therefore applies to the judiciary equally as well, not to enter into areas occupied by the legislature. Courts do not supplant but only supplement.

“The judiciary must exercise self-restraint and not encroach into the executive or legislative domain.”- Union of India v. Hiranmoy Sen (2008 (2) KLT Suppl.348 (SC) = (2008) 1 SCC 630).

“The distinction between law-making and adjudicating the rights of the people by interpreting the Constitution and enforcing these rights, as required by Article 32, cannot be forgotten.” - Supriyo @ Supriya Chakraborty v. Union of India (2023 KLT OnLine 1989 (SC) = 2023 INSC 920).

See further inState of Orissa v. Gopinath Dash (2006 (1) KLT SN 41 (C.No. 56) SC = (2005) 13 SCC 495), “While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority, and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power… Thus the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere.”

Still, some of the judgements rendered by the Supreme Court often raise eyebrows even of ardent supporters of judicial independence and supremacy of the courts. One of them is the recent direction issued to the highest constitutional functionary of India in State of Tamil Nadu v. Governor of Tamil Nadu, reported in 2025 KLT OnLine 1733 (SC). While a section of the legal community acclaims it as a powerful exercise of judicial authority over the executive and affirms judicial scrutiny in all spheres of constitutional functioning, some feel it is judicial overreach, particularly by an institution that itself suffers seriously from the malady of inordinate and unexplained delay in the disposal of cases, rendering justice, and a huge backlog of cases.

A recent study, the details of which have been published in an English newspaper, gives startling statistics of pending cases in different judicial forums in the country.

“Over 86,700 cases are pending in the Supreme Court, over 63.3 lakh cases in High Courts, and 4.6 crore cases in district and subordinate courts. Added up, the total number of pending cases in India amounts to more than 5 crore.”

The pendency of cases in courts represents about one-fifth of the population of the country. Yet, the Apex Court has found fault with the Rashtrapati for delaying bills sent for assent and issuing a writ of mandamus legislating a period of three months, not incorporated by the constituent assembly comprising of tall men who had sacrificed everything for the freedom of the country. Neither Article 111 nor Article 200 of the Constitution of India fixes any time limit but uses the expression ‘as soon as possible.’ In substituting the combined wisdom of several stalwarts and in issuing a command to the supreme commander of the armed forces of the country, the Supreme Court has relied upon the ‘Akshayapatra’ of powers under Article 142 of the Constitution of India.

It may be remembered that the Code of Civil Procedure fixes a time limit of maximum 60 days for pronouncing judgment (see Order XX Rule 1 of the Code of Civil Procedure, 1908). The Representation of the People Act mandates that all election petitions shall be disposed of in six months. (See Section 86 (7) of the Representation of the People Act, 1951). There are similar provisions in number of enactments like the Rent Control Acts and similar benevolent laws. Is this time limit ever complied with by any court in India? On the other hand, the Supreme Court has, in Anil Rai v. State of Bihar, reported in (2001 (3) KLT SN 15 (C.No.15) = (2001) 7 SCC 318), lamented that judgements are inordinately delayed and has issued directions to the courts to ensure pronouncement of speedy judgements. The litigants’ burden ends with the trial of the case, and the duty of the Judges begins after the conclusion of the trial. Nevertheless, in performing this duty, according to the Supreme Court, there is total indifference and consequent delay in the final disposal of cases.

True, there is systematic deficiency along with absence of effective case management and scheduling.

Fortunately the High Court of Kerala now is blessed with some very competent, committed, and hard-working Judges. Some of them work from 4 am to 11 pm. Yet due to the structural bottlenecks, procedural delays, and systematic constraints, there is a huge backlog of cases that appears to be beyond control as at present.

The President of India under the Constitution is enjoined to perform multifarious functions. They are connected with the Parliament, the Executive, and the Judiciary. The Supreme Court enjoys frequent vacations, including for both important and insignificant religious festivals. It also has the advantage of a long vacation besides availing of the leave. The President, however, does not enjoy even one day’s vacation. The office of the President is exacting and saddled with onerous duties, including travel abroad. That office, therefore, cannot be faulted with deliberate delays. The office of the President works throughout the year without any break, unlike the Supreme Court.

It therefore is really surprising that the Supreme Court finds fault with the President for not giving assent to bills in “three months” while the normal lifespan of a litigation in India is not less than thirty years. The litigant, a reluctant and hesitant entrant in courts, is not impressed. He is still uncared for.

The President was not made a party to the petition filed by the state of Tamil Nadu. Article 361 of the Constitution of India affords protection to the President and the Governors of the States from being answerable to any court for the exercise and performance of the powers and duties of their office. Neither the governor nor the President of India can therefore be made answerable in contempt if the mandamus issued by the Supreme Court is not obeyed or complied with. In short, the judgment of the Two-Judge Bench innovating a time limit in the constitution is wholly unworkable, ineffective, and otiose from the beginning.

Intricate, if not intriguing, questions on the interpretation of the Constitution therefore arise in the episode, which one hopes will be resolved in the presidential reference.

 When Courts Forget the Child : A Wake-Up Call from the Supreme Court

(By Akhil Ben, Advocate, Trivandrum)

 E-mail : akhilben854@gmail.com      Mob.: 6282315526

The recent Supreme Court Judgment in Arathy Ramachandran v. Bijay Raj Menon, (2025 KLT OnLine 1841 (SC) = 2025 INSC 587) offers a sobering reflection on how even constitutionally supreme forums like the High Court can, at times, falter when procedural formalism clouds judicial empathy. It highlights the danger of prioritizing parental parity over child welfare — a principle that lies at the very heart of family law.

This case, which began as a custody dispute between two estranged parents, reveals how even powerful judicial forums can make serious errors when they focus more on formal fairness between parents than the emotional and practical welfare of the children involved.

At the heart of the case were two minor children, one an eight-year old girl and the other a three-year old boy, whose custody was being contested after the parents separated. The Family Court in Thiruvananthapuram through a thoughtful order passed in IA 2/2024 in OP (G & W) 1185/2024, made a sensible balanced decision. It granted limited and supervised visitation rights to the father, who lives in Singapore, allowing him to meet the children for a few hours on fixed days under safe and controlled conditions within the court premises. It also allowed video calls to maintain regular contact without disturbing the children’s daily routines and sense of security. This was a sensitive, child-focused approach that respected both the father’s right to bond with his children and the children’s need for a stable, familiar environment.

Unfortunately, this careful arrangement was completely upended when the High Court of Kerala, through Bajaj Raj Menon v. Arathy Ramachandran (2024 KLT OnLine 3527- OP(FC) No. 682/2024, drastically expanded the father’s access to the children. The court ordered that both children should live with the father for 15 days every month- a decision that was clearly out of touch with the realities of the situation. The father lived abroad, had no permanent setup for the children in India, and the younger child had barely spent time with him. The High Court’s reasoning seemed to focus solely on the idea that both parents should get equal time with their children, without properly considering whether this would truly serve the children’s emotional, mental and physical needs.

This is where the High Court erred. In child custody matters, courts are not expected to split time down the middle like dividing property. The law is clear that the welfare of the child comes first – and that includes their emotional comfort, the continuity of their surroundings, their health, their education and the relationships they rely on daily. The High Court’s order was, in many ways, mechanical and formalistic. It assumed that creating a timeshare-like arrangement would fix a broken marriage and heal a divided family, without realising the practical and emotional damage it might cause to the children.

The Supreme Court’s judgement, stepping in to correct this was both timely and necessary. The Apex Court directly interacted with the elder child, a move that revealed crucial facts the High Court had overlooked. The child herself admitted that during her stays with her father, all meals came from restaurants. She had no company except her father and she longed for her brother and grandparents. This firsthand account exposed how impractical and emotionally harmful the 15-day custody swap was.

The Supreme Court rightly pointed out that custody decisions cannot be based solely on the love and good intentions of the parent. The child’s daily life, emotional growth, physical health and social environment must all be considered. It recognised that forcing a three-year old to live away from his mother, when he had no prior bond with the father, could cause lasting emotional harm. Likewise, leaving an eight-year old in an isolated flat, with no family or familiar surroundings for 15 days every month, was neither safe nor healthy.

In reversing the High Court’s order, the Supreme Court did not deprive the father of his rights but struck a fairer, more practical balance. It allowed him supervised custody on alternate weekends and regular video calls, while ensuring the children remained in their stable, supportive environment. This decision protects the children’s well-being while still giving the father a chance to nurture his bond with them- but in a way that respects their needs and comfort.

This judgement also sends a clear message for the future of Family Law in India. It reaffirms that child custody is not about satisfying parental claims or formal equality between mother and father. It is about making thoughtful, compassionate decisions based on what will truly help a child grow and heal in difficult family circumstances. The judgement warns against what the court called “arithmetic parity”- mechanically dividing custody time without considering the practical realities and emotional consequences.

Had the High Court’s order been allowed to stand, it could have set a hardmful precedent. Courts across the country might have started prioritising rigid time-sharing arrangements over the unique and delicate needs of each child. It might have encouraged separated parents to seek “equal time” as a matter of entitlement rather than focusing on what would genuinely benefit the children.

Thankfully, the Supreme Court’s timely intervention corrected the course. It restored a sense of compassion, care and practical wisdom to the handling of family disputes. More importantly, it reminds High Courts and Family Courts alike that in matters involving young, vulnerable lives, justice must be guided not only by law books but by empathy, experience and common sense.

 Distinction between Culpable Homicide Amounting to Murder and Not Amounting to Murder

(By V.C. Sarath, Advocate, High Court of Kerala)
E-mail : sarathlekshmi3@gmail.com        Mob.: 9846527247

The legal distinction between culpable homicide and murder has long been a subject of intricate judicial interpretation, academic debate, and nuanced statutory exposition. With the enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS), which re-enacts and reformulates core penal provisions previously encapsulated in the Indian Penal Code, it becomes imperative to revisit and re-analyse the foundational principles governing these two species of unlawful homicide.

In Chapter VI of the Bharthiya Nyaya Samhitha (BNS) deals with the offences affecting the human body, within this Chapter Section 100 defines culpable homicide, while Section 101 defines Murder. Culpable homicide is the border concept, encompassing any act that causes death under specific culpable mental states. Murder, on the other hand is a specific and serious form of culpable homicide.

Culpable Homicide

The word homicide comes from Latin words “homo” and “cido”.“Homo” means man and “cido” means killing. Thus homicide means the killing of a man by a man. In India Culpable homicide is classified into two categories.

1) Culpable homicide amounting to murder.

2) Culpable homicide not amounting to murder.

Murder

The term “murder” originates from the Germanic word “Morth” which means a covert killing( secret killing)

According to Kenny's outlines of criminal law, 19th edition.

In early Norman times, murder and manslaughter were not distinguished. Every homicide was felonious, unless it was justified, or within the limits described hereinafter excusable. Among the Germanic peoples on the continent a distinction had been drawn between an open killing which was emendable and a secret killing which was not. Cases of secret killing were classed as morth and it is from this that our word murder has come. Under the law of William, the Conqueror, if a Norman was slain and the Slayer was not produced, the district had to pay a fine, and the name ‘Murdrum’was given both to the homicide and to the fine in such a case. But in the twelfth century every homicide that was grave, whether secret or not, became unemendable and the term Murdrum gradually came to be used to describe a homicide of the most heinous kind.

Murder, then, is the most grave kind of felonious homicide. It’s essential elements have never been defined by statute, but it is traditionally said to be within “When a person, of sound memory and discretion, unlawfully killeth any reasonable creaturein being and under the King’s peace, with malice aforethought, either express or implied.”

Since Murder is a crime at common law, mens rea is required, and this calls for careful consideration.

As per the common law definition, murder is defined as the unlawful killing of a human being under the Queen's peace with a malice aforethought.

What is malice aforethought? The Courts have interpreted malice aforethought to mean either an intention to kill or an intention to cause grievous bodily harm. Malice aforethought is the key mens rea element for murder, meaning the perpetrator acted with a specific intent or state of mind.

There are 5 exceptions in section 101 of BNS.i.e.,

1. Grave and Sudden provocation

2. Exceeding the right of private defence( body or property)

3. Exceeding lawful exercise of power

4. Sudden fight in the heat of passion

5. Death by consent (above the age of 18 years )

If a case comes under any of the 5 exceptions mentioned above, then the offence of murder will be reduced into culpable homicide not amounting to murder.

If a Court finds an act to be culpable homicide but not murder, then the conviction and sentence can be imposed only under Section 105 of BNS (punishment for culpable homicide not amounting to murder)

The academic distinction between “Culpable homicide amounting to Murder and Culpable homicide not amounting to murder” has always vexed the Courts. Culpable homicide is genus and murder is species i.e All murder is culpable homicide but all culpable homicide is not murder.

According to Sir James Stephen “ The definition of culpable Homicide and murder are the weakest part of the Code, as they are defined in forms closely resembling each other and at times it becomes difficult to distinguish between the two, as the causing of death is common to both. However, the difference between culpable homicide is real though very fine and based upon a very subtle distinction of the ‘intention’ and ‘knowledge’ involved in these crimes. The true difference lies in the degree, there being the greater intention or knowledge of the fatal consequences in the one case than the other.

The mere commission of a criminal act is not enough to constitute a crime, at any rate in the case of more serious crimes. These generally require in addition some element of wrongful intent or other fault.

The latin maxim “Actus non facit reum, nisi mens sit rea” is the basic principle of criminal law governing serious crimes like murder, etc. the maxim meaning “the act itself does not make a man guilty unless his intention were so.” An act does not make one guilty unless the mind is also guilty.

Mens Rea - In Latin it means Guilty mind but in legal use it denotes the mental state( subjective element) required for the particular crime in question. Actus rea – denotes the external situation forbidden by law- the external elements of the offence. Actus rea refers to the physical act of committing a crime.

( Actus rea + Mens rea = Crime).

But there are certain exceptions to the rule .

1. Strict liability : Where strict liability crimes can exist, there do not require mensrea. Example Section 106 of BNS (old Section 304A of IPC) causing death by negligence. Section discloses that criminality may be that apart from mens rea, there may be no motive or intention, still a person may venture or practice such rashness or negligence, which may cause the death of other.

Mens rea and Strict Liabililty

The mens rea doctrine is excluded in cases of strict liability, even though a question of pure fact is involved. Hence it is sufficient for the prosecution to prove that doing of the prohibited act, the existence of the circumstance or happening of the consequence as the case may be.

According to Glanville Williams Text book of criminal law 3rd edition, Strict liability is sometimes called absolute liability, but although accepted usage, is a misnomer, because all the usual defences are available, except the defence of lack of intention, recklessness, or negligence. For example, the defendant can set up a defence of duress, necessity, insanity, automatism, and perhaps impossibility in some circumstances. An offence may be of strict liability in one respect but require a fault element in another. eg. Driving while disqualified is an offence of strict liability in respect of the disqualification (the driver is guilty, although he firmly, but mistakenly, believed that he was not then disqualified) but it requires an intentional act of driving. We can call it an offence of strict liability because that is predominant feature.

When it is held that an element of a serious crime is a matter of strict liability, this is probably because the Courts fear that the prosecution find it too difficult to establish mens rea in respect of that element. It is also economically impractical to try people for minor violations, such as illegal parking, speeding, and so on.

2. Absolute Liability

The rule of Strict liability that was laid down in the case of Rylands v. Flecther (1868 LR3HL300) was carried a step further to develop the concept of absolute liability. The doctrine of absolute liablity says that a person could be guilty even if there was no intention to commit a crime. The Hon’ble Supreme Court has held in M.C. Mehta v. UOI also known as the Oleum gas leak case established the principle of absolute liablity in India for hazardous industries, meaning that regardless of reasonable care the industry is liable for damages caused by hazardous activity. The Hon’ble Supreme Court has held in Union Carbide Corporation v. U.O.I. (1989 (2) KLT OnLine 1019 (SC) = AIR 1990 SC 273) also known as the infamous Bhopal gas leak case reiterated the principles of strict liability and absolute liability.

3. Vicarious Liability

The third category is vicarious liability, an expression properly belonging to the law of tort, which does not sit well in the criminal law. The civil Courts hold that if an employee commits a tort in the course of his employment, the employer as well as the employee is liable for it. Mega v. Archbishop of Birmingham (2010 1WLR1441).

Section 100 of the Bharatiya Nyaya Sanhita, 2023(Section 299 of the IPC) defines culpable homicide:

Whoever causes death by doing an act

a) with the intention of causing death,

b) with the intention of causing such bodily injury as is likely to cause death or

c) with the knowledge that is likely by such act to cause death, commits the offence of culpable homicide.

Section 101 of the Bharatiya Nyaya Sanhita, 2023 (Section 300 of the IPC) defines Murder.

Except in the cases hereinafter excepted, culpable homicide is murder,

a. if the act by which the death is caused is done with the intention of causing death; or

b. if the act by which the death is caused is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

c. if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

d. if the person committing the act by which the death is caused, knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Section 100 and Section 101 of BNS

Culpable homicide and Murder- A person commits culpable homicide subject to certain exceptions, if the act by which the death is culpable homicide is murder.

The Honourable Supreme Court has held in Virsa Singh v. State of Punjab (1958 KLT OnLine 1306 (SC) = AIR 1958 SC 465), the observations of Eminent Judge Justice Vivian Bose have become locus classicus. The test laid down by Virsa Singh supra for the applicability of clause “thirdly” is now ingrained in our legal system and has become part of the rule of law. Thus according to the rule laid down in Virsa Singh Supra, even if the intention of the accused was limited to the infliction of bodily injury, sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder.Illustration” C “appended to Section 101 of BNS clearly brings out this point. Therein it was held that there is no fixed rule that whenever a single blow is inflicted, Section 302 of IPC now Section 103 of BNS would not be attracted. No hard and fast rule, however, can be laid down as different situations may arise having regard to the factual matrix involved therein. Justice Vivian Bose explained the meaning and the scope of clause(c) of Section 300 IPC now Section 101(c) of BNS. It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 ‘thirdly ‘, first it must establish quite objectivity, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These are purely objective investigation. Thirdly, it must be proved that there was an intention to inflict that particular injury,that is to say, that it was not accidental or unintentional, or that is some other kind of injury was intended.Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

The Honourable Supreme Court has delivered the verdict in Rajinder v. State of Haryana (2006 (3) KLT 218 (SC) = AIR 2006 SC 2257). The crucial question is asked to which was the appropriate provision to be applied. In the scheme of the IPC, the culpable homicide is genus and murder is species. All murder is culpable homicide but not vice versa. Speaking generally culpable homicide sans “special characteristics of murder is culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognise 3 degrees of culpable homicide. See Section 100 of BNS.

The first is, what may be called culpable homicide of the first degree. This is the gravest form of culpable homicide, which is defined in Section 101 of BNS as murder. The second maybe termed as culpable homicide of the second degree. This is punishable under I Part of Section 105 of BNS. Then there is culpable homicide of the 3rd degree. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable Homicide of this degree is punishable under the II part of Section 105 of BNS.

Now let us explain each clause of Section 100 of BNS corresponding to section 101 of BNS.

Clause (a) of Section 100 of BNS corresponds with clause (a) of Section 101 of BNS i.e. with the intention of causing death.

Clause (b) of Section 100 of BNS corresponds with Clause(b) and (c) of Section 101 of BNS, difference only in the nature of mens rea. Under clause(b) of Section 101 regarding knowledge possessed by the offender to the victim being in such a peculiar condition or state of health, that the harm is caused to him “that the intention to cause death” is not an essential requirement of Clause (b) of Section 101 of BNS, only the intention of causing such a bodily injury as the offender knows to be likely to cause death is required i.e. coupled with knowledge.

Clause(c) of Section 101 of BNS. Instead of knowledge and likely to cause death, the words used in Clause(c ) is sufficient in the ordinary course of nature to cause death, have been used. Means the degree of probability of death resulting from the intended bodily injury means that death will be the “most probable”.

Clause (c) of Section 100 of BNS corresponds with the Clause(d) of Section 101 of BNS that both require knowledge of the probability of the act causing death. Such a knowledge on the part of the offender must be of the highest degree of probability, cause death, or such body injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.