An Interpretation Gone out of Track

A Critique of Syndicate Bank v. Soji Chacko (1998 (2) KLT 25)

(By Gigi P.V., Advocate, Kottayam)

Our High Court in this decision held that the State amendment to S.213 of the Indian Succession Act 1925, is only prospective. In order to arrive at this decision the Court sidestepped two important basic doctrines of interpretation.

The first one is that the procedural law has to be applied retrospectively and the second is the mischief rule of interpretation.

In order to surmount the first principle, the learned Justice observed that the amendment to S.213 of the Indian Succession Act 1925 is not merely procedural. But in Sheonath v. Madanlal (AIR 1959 Rajastan 243) the learned Judge held that "As I understand the provisions contained in S.213.....clearly seems to me that the Section does not vest any right or rather any substantive right to anybody. What it really does is to regulate the mode of proving a will, that is, procedure..... I am categorically of the view therefore that S.213 lays down a rule of procedure and not of substantive law". In G. Geevarghese v. Issahak George (AIR 1971 Kerala 270) His Lordship Justice V.R. Krishna Iyer held that "S.213 of the Indian Succession Act is procedural and not substantive and the provision applies to wills of anterior dates also." It is well settled position that S.213 of the Indian Succession Act is a rule of procedure. Alterations in the form of procedure are always retrospective unless there is some good reason why they should not be. Unless a contrary intention appears from the statute, the procedural enactments apply to all actions whether commenced before or after the Act. The reason is that, the procedure for enforcing a right is no portion of the right nor does it alter or affect it.

The second principle ie., the rule in Heydon's case is completely ignored by the Court. According to this rule, the Court should avoid the construction that will defeat the purpose or object of the statute. Viscount Simon L.C., in Nokes v. Doncarter Amalgamated Collieries Ltd. (1940 AC 1014 at page No.1022) observed that "........We should avoid a construction which would reduce the Legislature to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result". In Kuttyazhikom Devaswom v. Aliymmur Assan (1996 KLT 111) a Division Bench of Kerala High Court observed that the first rule of interpretation requires that we must give the natural literal meaning to the words used in the Section. If there were anomalies resulting or ambiguities following, it would be necessary to apply the well-established principles laid down in Heyden's case to find out the real and true intention of the Legislature.

It has to be remembered that the Indian Succession (Kerala Amendment) Act 1996 was necessitated because of the decision of the Supreme Court in Mary Roy v. State of Kerala (AIR 1986 SC 1011). The impact of the decision was that S.213 of the Indian Succession Act 1925 became effective in Travancore Cochin State from 1.4.1951. Through the decision in Mary Roy's case, the Indian Succession Act, which was an alien law, was forced upon the Christians of Travancore. Though the Court did not expressly give retrospective effect to the judgment the mere declaration that the Travancore Cochin Acts stood repealed on 1.4.1951 because of State B Laws Act, gave the judgment retrospective effect, overturning the then existing law and practice among the Christians.

In order to avoid this mishap of Travancore Cochin Christians the Legislature intervened and enacted the Indian Succession (Kerala Amendment) Act 1996 and it notified in the Gazette on 14.3.1997.

I would like to point out, with due respect to the learned Judge that, the Hon'ble Court has bypassed the basic principles of interpretation on the procedural law without noticing the established precedents in these matters. The Court ought to have applied the rule in Heydon's case by giving the amendment retrospective effect, because the Kerala Legislative Assembly passed the amendment in order to bail out the Christian Community from its predicament due to Mary Roy's case.

The Constitution Yesterday Today Tomorrow -

A Study of Constitutional Review

(By Govindh K. Bharathan, Advocate, Ernakulam)

The Preamble to the Constitution declares with pride that we the people of India adopt enact and give to ourselves the Constitution. The solemn pledge in the Preamble is to secure to us the citizens, social, economic and political justice and liberty of thought and fraternity assuring the dignity of individual.

50 years later, when starting from Gopalan's case (1950 SCR 88), judicial cognizance of the lofty language of the Preamble has been expanded and the parameters established by the Preamble with its amendments have been held to include interpretations of Fundamental Rights and Directive Principles of State Policy, both of which are the treasures which we have bestowed on ourselves, we have embarked on an attempt to assess whether the Constitution requires any change to make it more meaningful and effective in the light of the phenomenal changes that the last decades of the dying millennium have precipitated on us, the people and on the world.

A Constitution, to be meaningful in the context of its avowed pledge to secure to its citizens, Justice, Liberty, Equality and Fraternity should be flexible enough to accommodate changing concepts of these stirring ideals. Having escaped from the legal rigor-mortis of Golaknath's case, (AIR 1967 SC 1643) with its emphasis on lack of power of the Parliament to effect any amendment of the Constitution by the ruling in Kesavananda Bharati's case (AIR 1973 SC 1461), it sounds ironic that so much of heat and so little of light has been generated by the proposal to constitute a committee to review the Constitution. Propelled as we are into the 21st century by the winds of momentous change, yesterday's truths are likely to become tomorrows ambiguities or even antiquities, be they social, cultural or religious. It is thus time that we decided whether the Constitution we have ourselves will give us what we want for ourselves in the new millennium.

In a land like ours, where the geography changes every 200 kilometers and customs and practices prevalent in one part of a State may be totally different from customs and practices prevalent in another part of the same State, and where the delicate balance between seemingly irreconcilable factors, beliefs and ideologies is maintained by die subtle counter balancing forces of an ancient and mystic culture, it would be too much to expect the Constitution to conform in all respects to the way of thinking and rooted beliefs of all the people at the same time. A Constitution is meant for people with fundamental differences of thought, ideology and aspirations. In the words of Justice Holmes while dealing with the 14th Amendment of the U.S. Constitution:

"But a Constitution is not intended to embody a particular economic theory, whether of paternalism and die organic relation of the citizen to the State or of laissezfaire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

In a land as complex an variegated as ours, where plurality of opinion on any subject is the rule, rather than the exception, the enormity of the task of finding the least common denominator to accommodate the dignity of the individual within the parameters of the preamble of the Constitution is by itself a daunting proposition. The task is made more complicated by the lack of drafting skills at the Secretariat level where our statutes are crafted into shape. Therein lies the seed of judicial interpretation of the statute.

Time and again jurists have cautioned against judicial legislation replacing judicial review. Patanjali Sastri, C.J. in State of Madras v. V.G. Rao (AIR 1952 SC 196) cautioned against Judicial Oligarchy. In His Lordship's words:

"In evaluating such elusive factors and forming their own conception of which is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and die scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the impositions of the restrictions, considered them to be reasonable".

In the eighties our nation entered into what history will call the coalition era. No single party had even the simple majority required to rule, let alone the two-thirds majority required under Art.5 to effect a Constitutional Amendment. Hence judicial review played an increasingly dominant role in Constitutional interpretation. In some momentous rulings of the Supreme Court, the very tone and texture of Fundamental Rights in Part III and Directive Principles in Part IV have been amplified, expanded and made effective instruments to ensure the requisites of Justice, Liberty, Equality and Fraternity. The right to equality in Art.14 became far more than mere equality before law or equal protection of the laws and acquired "the great equalising principle" of being antithetic to arbitrariness.

Similarly Art.21 took on new dimensions and the right to life enshrined therein was interpreted to mean much more than mere-physical survival and encompassed the right to a life of human dignity and all that goes along with it, including food, shelter, clothing and free expression in diverse forms. Instances would be legion where the positive aspects of judicial activism subtly expanded the words of the Constitution and gave them a new meaning, a new life and a new ethos in harmony with the pulse-beat of the nation.

However the warning note struck by Justice Palekar in Kesavananda Bharathi's case will forever loom over any discussion regarding Constitutional changes. His Lordship observed as follows:

"1248.............................................................................................................................Indeed no Constitution is safe against violent extra-constitutional upheavals. But the object of making such a provision in a Constitution is to discourage such upheavals and provide for orderly change in accordance with the Constitution."

".............................................................................................................It is, therefore, evident that if for any reason, whether it is the extreme rigidity of a Constitution or the disinclination of those who are in power to introduce change by amendment, the essential parts looked upon with distrust by the people are not amended, the Constitution has hardly a chance to survive against the will of the people. If the Constitution is to endure it must necessarily respond to the will of the people by incorporating changes sought by the people. The survival of the American Constitution is generally attributed not so much to the amending Art.5 of the Constitution but to the vagueness which was exploited by the great Judges of the Supreme Court of America who by their rulings adapted the Constitution to the changing conditions.

.................................................................................................................But framers of modern Constitutions as of India learning from experience of other countries have endeavoured to make their Constitution as precise and as detailed as possible so that one need not depend upon judicial interpretation to make it survive".

A Constitution which depends solely on judicial interpretation to survive, or be effective cannot be either democratic or in accordance with the will of the people. The decision of the Supreme Court in the Creamy Layer case (Indira Sawhney v. Union of India 1992 Suppl. 3 SCC 217) has been criticised as incorporating the views of the elite while ignoring the ground realities of caste, based backwardness. Perhaps another set of Judges wedded to different ideologies and priorities would have interpreted the entire issue in a different manner. So too, in the matter of minority rights, in the context of Art. 30(1) of the Constitution.

In re Kerala Education Bill 1957 (AIR 1958 SC 956) Justice Venkitarama Iyer in his dissenting judgment sounded a warning note which is worth recalling:

"Art.30(1) belongs to the same category as Arts.25, 26 and 29, and confers on minorities, religious or linguistic, the right to establish and maintain their own educational institutions without any interference or hindrance from the State. In other words, the minorities should have the right to live, and should be allowed by the State to live, their own cultural life as regards religion or language.................................................................................................................................................................................................................................................The true intention of that article is to equip minorities with a shield whereby they could defend themselves against attacks by majorities, religious or linguistic, and not to arm them with a sword whereby they could compel the majorities to grant concessions."

Times have changed and half a century later the minority community is in no way oppressed and is nowhere near extinction. Justice Venkitarama Iyer's words were clearly prophetic and the result is that through interpretation some of the rights conferred on minorities have become oppressive as far as the majority communities is concerned.

The question whether the Constitution has failed us or whether we have failed the Constitution is more rhetoric than realistic. There are grey areas which became evident only when the country went through one Constitutional crisis or the other. There is a lot to be said about the sad lack of human excellence in all three wings of Government, the Legislature, the Executive and the Judiciary. But the fact remains that ours is the only free democratic nation in a ocean of chaotic military regimes. To that extent, we have not failed the Constitution. It may not be possible for any Government to effect a seminal change in human values and to create human excellence, over-night. The only other alternative is thus to find out within the Constitution areas which require review and perhaps redrafting and having once identified these areas, to suggest positive remedial steps. The national debate on the necessities for review should commence only then.

It is not as though some of the inadequacies of the Constitution have not been noticed in the past. Even within the first five years of the Constitution, Jawaharlal Nehru had set up a Committee to iron out some of its angularities. Later, Indira Gandhi set out to even consider fundamental changes which would alter the basic structure of the Constitution. Kesavananda Bharati's case intervened and the Larger Bench while laying down that Parliament had no power to alter the basic structure of Constitution, also bestowed a large degree of flexibility on it, knowing fully well that changing times will necessitate suitable changes in all areas falling outside its basic

structure.

If ever the Constitution required review, it is now. The drastic provisions of Art.356 relating to proclamation of President's Rule in a State is a case in point. Dr. Ambedkar one of the Architects of the Constitution had strongly advocated the restricted use of Art.356 to instances of break-down of the Constitutional-machinery and categorically stated that he expected that the said Article would never be called into operation and would remain a dead letter.

The gross abuse of this Article as evident from its imposition on more than 100 occasions during a period of 50 years clearly indicates that it was being used more as an exercise in political vendetta than with the genuine intention of ensuring the stability of the Constitutional-machinery in a State. Art.370 which confers a separate status on the State of Jammu and Kashmir also needs serious scrutiny especially in the light of the lessons we have learned during the last 50 years.

In these day of televised procession, the necessity of prescribing a stringent code of discipline for Members of Parliament has become imperative. Part IV(a) which was introduced by the 42nd Amendment should be reviewed to include a code of conduct for elected representatives of people as recommended by the Upendra Committee. The role played by the President and Governor's of the State when there is a hung Parliament or State Legislature also has to be redefined. No amount of orchestrated shouting will efface this crucial need.

In conclusion it needs to be emphasised that there is nothing sacrilegious about taking a hard new look at the Constitution. Kesavananda Bharathi's case has categorically ruled out any change of the basic structure of the Constitution. The nascent power to amend what does not constitute the basic structure should be viewed as an indemnity against legal atrophy which would be disastrous for a growing State. Justice Khanna quotes Harold Laski in Kesvananda Bharathi's case as follows:

"The State, therefore, which seeks to survive must continually transform itself to the demands of men who have an equal claim upon that common welfare which is its ideal purpose to promote."

The stupendous explosion of Science and Technology and the information explosion have changed once and for all the woof and the warp of human life throughout the world. Bill Gates and Azhim Premji, have replaced, Henry Ford and Paul Getty as architects of human destiny. Alvin Tofler in "Power Shift" predicted that progress would be dictated by the shift of the exercise of power from the physical to the fiscal and ultimately to the unchartered realms of the human mind. Today's world where computers guide human thought and action into fruitition is different from yesterday's. The Constitution, to be a live, vibrant and trenchant instrument should accommodate this change and those of us who are not prepared to accommodate this change will be expelled by the centrifugal force of progress. Those concerned with the future should now raise their voice or forever remain silent. 

CAUSE OF DOMESTIC VIOLENCE

(By T.M. Rajasekharan, Advocate)

It is not explained by Hon'ble Mr. Justice P.A. Mohammed when he states "Patriarchy is, no doubt, opposed to the doctrine of equality enshrined in the Constitution", as to what are the basis for his conclusions (2000 (1) KLT 43).

Patriarchy as practised in Indian society is only an institution in which property is transferred through males. Even here, our laws, old and present, provide protection to women in no small measures, as is evident from the provisions of the Hindu Succession Act and other enactments.

The age old concept of Patriarchy as a philosophy of male-domination is absent in these days. Whether in India or the neighbouring countries, control by male authority is not recognised by law.

The Gandhian approach to non-violence is a total philosophy applicable universally. But "Truth" (Sathya) is not the monopoly of Gandhian philosophy nor was it propounded by Gandhi. The sum total of Gandhiji's life and works is indebted to our ancient philosophers and saints. American Philosopher Henry David Thorough also had considerable influence on Gandhiji. It is by adopting Valluvar's saying "Truth purifies soul as water purifies body" (Thirukural), that Gandhiji conducted his experiments of truth, which unfortunately was left incomplete by his death and neglected by his followers.

Patriarchy cannot be blamed for "Wife Battering" since such incidents of domestic violence existed in Matriarchal societies too in one form or the other. It is further possible to see that domestic violence or domestic hooliganism is on the increase in nucleous families compared to their predecessor system of joint families, either patriarchal or matriarchal. Recognisation of principles of equality of sexes is an evolutionary process which can be developed by good social education. The authority of law has only insignificant role in this aspect as the problem is related to the society at large.

"Where is the Justice"

(By Justice K.P. Radhakrishna Menon)

Administration of justice in this country is entrusted with a hierarchy of Courts, with the Supreme Court at the Apex. For a smooth functioning of the system, Judges per-force have to scrupulously observe judicial discipline, precaution and propriety.

Our legal system admits the falliability of Judges and consequently has provided appeals and revisions to higher Courts. As observed by the Supreme Court, "a Judge who has not committed an error is yet to be born'. A Judge discharges his duties; it is trite knowledge, to the best of his capacity. Sometimes he is likely to err, and err on the wrong side. All the more so in the case of Judicial Officers in the Subordinate Judiciary, "who mostly work under a charged atmosphere and are constantly under a psychological pressure, with all the contestants and their lawyers, almost breathing down their necks, more correctly up to their nostrils". They do not have the benefit of a good library and therefore they mostly depend on the authorities made available by the lawyers.

Taking note of these aspects and the constraints attached to the system, the Supreme Court, time and again has cautioned the Judges that they have a duty to ensure judicial discipline and respect for the judiciary from all concerned. Judges in the higher judiciary particularly shall remember the proverbial statement of the Supreme Court, that "respect for the judiciary is not enhanced when the Judges at the lower level are criticized intemperately and castigated publicly - no greater damage can be done to the administration of justice and to the confidence of the people in the judiciary, when the Judges of the higher court, publicly express lack of confidence in the Subordinate Judges for one reason or the other". The Officers against whom such strictures are passed, the Supreme Court says, stand condemned in the eyes of their subordinates and of the members of the public. Supreme Court accordingly opined that "no better device can be found to destroy the judiciary from within". To prevent such destruction, the Judges of the higher court shall exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against the lower judiciary. It is all the more so, the Supreme Court states, because the Officer against whom such strictures are passed has no right to appear before the higher court to defend his order.

The above principles declared by the Supreme Court, by virtue of Art.141 of the Constitution, is binding on all Courts in India. Some Judges of the higher Courts however, seem not to be very much concerned with these rulings, specifically meant to prevent the destruction of the judiciary from within. They continue to indulge in leveling criticism against the Judges in the Subordinate Judiciary employing highly intemperate language.

Recently I had occasion to read a judgment of the Kerala High Court reported in 2000 (1) KLJ 924, where a Sessions Judge by name has been criticised employing intemperate language. This criticism, notwithstanding the rulings of the Supreme Court, I am sure will not help enhance the respect for the judiciary, which is at low ebb thanks to the delayed disposal of cases, particularly. Not only that, this criticism will definitely bring the concerned judicial officer down in the estimation of his subordinates and the members of the public.

The statement of facts in the order of the Sessions Judge under revision, namely "the court below appears to have felt that the question has to be considered under S.245 Cr. P.C. At the bar it is agreed that the question has to be considered under S.239/240 Cr. P.C. and not under sub-s (2) of S.245 Cr. P.C. I am satisfied that reference to S.245 Cr. P.C. is incorrect" makes it abundantly clear that the point dealt with by the Sessions Judge was not one coming under S.245 and therefore not strictly covered by the Antulay case.

Whatever that be the fact remains that after the year 1996, Antulay dictum as modified arid explained by the Supreme Court in Somnath Thapa, 1996 SCC (Crl.) 820 alone governs the field. After reviewing all the earlier rulings on the subject, the Supreme Court in Somnath Thapahoifr. "The aforesaid show (referring to paragraphs 29, 30 and 31 of the said decision) that if on the basis of materials on record a court should come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence". May be that these aspects have escaped the notice of the Judge. But in a case falling under S.239, according to the Supreme Court, the accused will be discharged if the Magistrate finds that charge against the accused is groundless.

Assuming that the issue considered is covered by the Antulay principle, even then there is hardly any justification to attack the Sessions Judge employing intemperate language, in view of the rulings of the Supreme Court. The Supreme Court rulings which provide an effective shield against such scathing criticism, bringing down the judges of the Subordinate Judiciary in the estimation of their subordinates and of the public, has been smashed to smithereens by the Judge. The Officers of the Subordinate Judiciary have to meekly suffer the ignominy forever.

In the circumstances one is constrained to think aloud "Where's the justice?" Should justice remain in the hiding? To preserve the glory of the judicial system, which is unfortunately waning, the Hon'ble Chief Justice, I believe, would step in and set right matters. 

Public Nuisance - Revisited

(By K. Balakrishnan, Research Scholar, School of Legal Studies, Cusat, Kochi)

Visitors to God's Own Country may be shocked to find people smoking cigarettes and beedis at most public places right under or in the vicinity of a board that reads: 'As per the judgment of the Hon’ble High Court of Kerala in O.P. No. 24160 of 1998 dated 12.07.99 smoking of tobacco in public places is prohibited and is punishable' (K. Ramakrishnan v. State of Kerala 1999 (2) KLT 725; AIR 1999 Ker. 385). Even if a visitor makes the smoker to read the board, the latter may continue to smoke, as he may be addicted to the practice. Others, who stand by - the passive smokers, may not be tempted to stop him either. Nor could a lawyer find it easy to convince the smoker the morality or legality of the judgment.

This is so in spite of the laborious reproduction of the reports made by various medical bodies by the Court in order to buttress its judgment. One may appreciate the high sense of alacrity shown by the Court in the ever-worsening scenario of the air being polluted from various sources thereby endangering the fundamental right to life guaranteed under Art. 21 of the Constitution of India. No doubt, the points discussed in the judgment do lead to the incontrovertible conclusion that is arrived at, ie., smoking of tobacco in public may become a public nuisance. So far so good. One wonders if the Court sidestepped from this point onwards. It did not stop after observing that such an act would come within the ambit of S.268 of the Indian Penal Code. May be, it was the benign wish of the Court to adopt a means to ensure in a foolproof manner that their declaration does not remain a dead letter of law, a commendable object.

The question is whether the judgment is in consonance with the time-tested principle of separation of powers and the rulings of the Apex Court. Apparently, the decision results in judicial legislation, which has already been deprecated and forbidden by the Apex Court in State of Himachal Pradesh v. A. Parent of a Student of Medical College, Shimla (2AIR1985 SC 910). The relevant portion has been reproduced in para 22 of the judgment. The Apex Court was categorical in stating thus:

'The Court certainly cannot mandate the executive or any member of the legislature to initiate legislation, however, necessary or desirable the Court may consider it to be .... If the executive is not carrying out any duty laid upon it by the Constitution or the law, the Court, can certainly require the executive to carry out such duty and this is precisely what the Court does when it entertains Public Interest Litigation.... But at the same time the Court cannot usurp the functions assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it to assume to itself a supervisory role over the law making activities of the executive and the legislature.'

It is interesting to see how the Court uses the ratio of this decision. After a verbatim reproduction of the above, it is stated so:

'Thus, from the above observation of the Supreme Court, it is clear even the Supreme Court found that Himachal Pradesh High Court had exceeded the limits of judicial power in ordering relief in Public Interest Litigation (3atp.393AIR).'

Ironically, however, the Court in the instant case observes that the Court acting as the sentinel on the qui vive can certainly interfere and grant relief by way of mandamus to the Government and its officials including police to enforce the existing laws which is quite sufficient to safeguard the interests of the public against the wisp of environmental tobacco smoke (ETS). In the words of the Court, when laws are there to deal with nuisance the law has to be enforced by the law-enforcing agency of the State.

It is not clear whether the Court is presuming that the legislature is wantonly ignoring its duty to protect the fundamental right of its citizens in not legislating to the effect that smoking in public amounts to public nuisance. But it certainly minces no words in saying that the executive has failed to discharge its duties properly. It is necessary to search if the executive, in this case the Police, were under any express or implied duty to restrain or proceed against persons smoking in public places. Hitherto, it appears that there is no law to this effect that could have been stated to be in vogue imposing such a duty on a police officer. When there if no such law in existence, it is hard to conclude that the executive failed in their duty. However, astonishing is the presumption on which the Court proceeds further.

Quoting from R. v. Metropolitan Police Commissioner ex p Blackburn (4(1968) 2 QB 118), the Court observes that the fact situation here is exactly the same as observed there- 'in the extreme cases where it was shown that they (the Police) were neglecting their duty, the Court would interfere'. It is pertinent to note that in the same judgment, it was clearly stated that the courts should not interfere with the discretion of executive (the Police).

It is doubtful if any of the District Magistrates (DM) (or Sub Divisional Magistrates (SDM) as the case may be) had been approached for an order to be passed under S.133 of the Cr. P.C. requiring any person not to smoke in public. There is no evidence of any DM having neglected any such duty. Apart from that, it is doubtful if before this judgment was passed, any DM may have considered smoking in public to be a public nuisance violating any of the citizens' fundamental rights. In any case, it would squarely be the arena of the Parliament to declare it to be so. However, it may be stated that, in the light of smoking in public being discussed in such manner in this judgment no DM, who may have been approached subsequent to this judgment under S.133 of the Code of Criminal Procedure, could come to a different conclusion other than that it amounts to one of public nuisance and the orders would be necessitated on the same lines.

If, say for the sake of argument, it is visualised that an order is refused treating it as not amounting to a public nuisance, there is always the check of judicial review. But, in the instant case, there was no question of the DM exercising his discretion (as contemplated under S.133 Cr. P.C.) and coming to any conclusion, whatsoever. The Court already arrives at the conclusion and a DM is only to pass the particular order. In other words, it is not just a question of requiring them to pass appropriate orders but mandating them to pass a particular order. This would be a blatant usurpation of powers conferred on the DM.

In the absence of substantive law or a practice of the executive under the analogous law, the Court tries to read executive powers in S.268 and 278 IPC. Though, at a glance, S.268 may point towards the feasibility of bringing an ingredient into the same since the Section is worded widely, it cannot be lost sight of the fact that it forms part of criminal law, which has to be construed in a strict manner by the Courts. The Court further observes that offence under S.278 IPC is a non-cognizable one and, therefore, the police have no authority to arrest the offender without an order from a Magistrate or without a warrant. It is a 'petty case' since the offence is punishable only with fine up to Rs.500/-. The Court makes certain observations as to whether a police officer can file a complaint before a Magistrate regarding such an act, which may be sought under S.278 IPC. The Court observes that a complaint includes the report of a police officer in a non-cognizable case, and therefore, the police can file a complaint before the Magistrate against the offender for the said offence. But, it may be noted that the report of a police officer could be considered as a complaint under Ss.(d) and 190(l)(a) only if at the commencement of the investigation the police, officer is led to believe that the case involved a commission of a cognizable offence or if there is doubt about it and investigation establishes only commission of non-cognizable offence. If at the commencement of investigation it is apparent that the case involved only commission of a non-cognizable offence, the report followed by investigation cannot be treated as a complaint under S.2(d) or S.190(1)(a) of the Code of Criminal Procedure (P. Kunhumuhammed v. State of Kerala 1981 Cri. L.J. 356 (Ker. HC)).

The Court says that it is not necessary that the offence complained of is cognizable to enable the police to file a complaint. To substantiate, the Court points to S.153(2), a reading of which, according to the Court, shows that the police can file a complaint to the Magistrate in a non-cognizable case. S.153, however, deals with 'Inspection of Weights and Measures'. S.153(2) deals with the power of the police to seize the objects mentioned therein and give information of such seizure forthwith to a Magistrate having jurisdiction. A reading of S.153(2), therefore, does not seem to show that the police can file a complaint to the Magistrate in a non-cognizance case.

The Court further observes that when the complaint is made by a public servant in discharge of his official duty the Magistrate need not follow the procedure under Ss.200 and 202 Cr. P.C. in which case the Magistrate can straightaway issue process to the accused. What Ss.200-203 envisage is a mechanism of check intended to be exercised compulsorily in order to avoid frivolous complaints. It is exclusively applicable in cases where cognizance is taken on a complaint. If any report of the police officer is to be treated as a complaint as discussed in this judgment, it is not clear as to how the procedure contemplated under Ss.200-203 can be ignored. But, where a report is submitted by a police officer regarding a non-cognizable offence after investigation relating to a cognizable offence, this special procedure need not be adopted1. Of the offences where the procedure need not be adopted, only the one under S.188 IPC is a cognizable offence. In other words only such an offence would entitle the police to arrest a person without a warrant. In the light of the above, one wonders how a police officer can arrest a person smoking in public which is not even an offence, not to talk of a cognizable one.

Though there is no discussion of the above points in the Judgment, the Court proceeds to ensure that anyone committing an offence of smoking in public should be arrested without warrant, elevating the offence to a higher level of culpability not intended by the legislature, and for the purpose it commands S.133 Cr. P.C. to its aid. But it is a fundamental principle that nemo potest facere per obliquum quod non potest facere per directum.

It is doubtful whether the Court could tamper with the procedures contemplated under S.133 to 143 of Code of Criminal Procedure. S.133 Cr. P.C. talks about 'conditional' orders to be passed by DM or SDM for removal of nuisance. It speaks of conferment of power by the State Government on DM or SDM to make a conditional order requiring the person causing such nuisance to remove such nuisance (other parts deal with unlawful obstruction, conduct of any trade or occupation, construction of any building, dilapidated buildings, danger from tank, well or excavation and dangerous animals which are irrelevant in the present context). S.133(1)(a) speaks about unlawful nuisance in a public place under which the act of smoking in public place is brought in by the Court. What is contemplated and empowered under S.133 Cr. P.C. is passing of a preliminary order, which should be a conditional order by the DM or the SDM. The Court seems to proceed on the basis that the Magistrate at the first instance itself can pass a final order.

In (1996) 7 SCC 71, C.A. Avarachan v. C.V. Sreenivasan & Anr., the Apex Court held that:

"In our opinion the omission on the part of the SDM to draw up a preliminary order, which is a sine qua non for initiating proceedings under S.133 of Cr. P.C. and without following the procedure provided for by S.138 Cr. P.C. the order made by the SDM on 13.01.88 is unsustainable and vitiated. The High Court fell in error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceeding under S.133 Cr. P.C. Neither the order of the High Court nor that of SDM can therefore be sustained."

The powers under S.133 are to be used in such a manner as to give an adequate opportunity to the person against whom it is made etc.2 It is a clear position that no final order can be passed unless a conditional order had been passed in the beginning (H.K. Chindaiah v. M.K. Gopala Iyer 1987 Cri. L.J. 1264 (Karn.). The Magistrate has to afford an opportunity to the person against whom an order is made to appear before him for the purpose at a time and place to be fixed by the conditional order. The person proceeded against has thus to be directed to remove the obstruction or nuisance, or appear before him or some other Executive Magistrate at any time and place fixed under the order. The Magistrate cannot inform him that if he did not obey the order, he would be proceeded against under S.188 of the IPC. Any such direction would be illegal (S. Appanna Gowda v. V. Appanna Shetty (1963) Mys. L.J. 273). It is clear, therefore, that the Magistrate can only pass a conditional order in the beginning and thereby give an opportunity to the other party. If no opportunity is granted, a person cannot be proceeded against under S.188 IPC. An order for removal of a nuisance does not become absolute until an opportunity is given to the person affected by it to show cause why the order should not be carried into effect.(Rai Mohan v. Emperor ILR 44 Cal. 61).

Further, an order under S.133 must be issued and also addressed to a particular person or persons and not to the public at large as in the case of orders under S.144 Cr. P.C. (Parbutty Charan Aich v. Queen Empress ILR 16 Cal. 9). No order can be passed against persons who are not parties to the proceedings under S.133 (Jokhi Ram v. Mukh Ram 1977 Raj Cr. C. 159). A general order or proclamation prohibiting nuisances cannot be issued under this Section. The order must be directed to any special class or an individual; otherwise its disobedience will not be punishable under S.188 IPC.(Queen Empress v. Manekchand Ratanlal 342) The Magistrate should first issue a conditional order in Form No.20 of the Code calling upon the respondent to remove the nuisance. If the respondent objects to do so on his appearance, he should be asked to show cause for the order not being made absolute. Thereafter, the Magistrate has to take evidence in the matter as in a summons case, and only thereafter, if he is satisfied, he will make the order absolute (Executive Officer v. A. Satchidanandan 1983 Mad. L.J. (Cri.) 279).

It is clear from the above discussion what the import of S.133 Cr .P.C. is. The Section is designed to afford a rough and ready procedure for removing public nuisances, and is intended to be used in urgent cases (37th Report of the Law Commission of India, p. 91). The proceedings are just to maintain peace and tranquillity and the orders rendered under these Sections are merely temporary orders (Bhaba Kanta v. Ramachandra 1987 Cri. L.J. 1155 (P & H)). What the Section provides for is a summary remedy for the removal of nuisances. This has been kept in view by the Court. There is no conditional order to begin with under S.133. The order contemplated, and in almost all cases passed, (presumably because of the concern of the Damocles sword of contempt proceedings) is not passed against any particular person or a class of persons (except for the class of those persons who smoke in public, which one might say was not contemplated by the legislature). Under the scheme of criminal procedure, the Magistrate has to order the removal of the nuisance. No such order is contemplated by the judgment. Absolutely no opportunity is to be given to the person to be proceeded against under S.188 IPC, consequently, to be condemned unheard. And as icing on all these, the Magistrate's power of discretion being completely usurped except of course to the extent of formal passing of an order. There is no question of the Magistrate exercising any discretion (howsoever restricted it would be in the light of new ingredient of public nuisance). A mandamus not to the effect of asking the Magistrate to pass appropriate orders but to pass a particular order. Does the element of immediate public interest justify the means adopted?

The judgment tries to buttress the approach it has taken by calling to aid the ratio in Ratlam Municipality v. Vardhichand (AIR1980 SC 1622) (para 24 at p. 396). It is from this judgment that the Court attempts to chart a course for the proper implementation of their judgment. Merely because S.133 Cr .P.C. and S.188 IPC appear in the paragraph does not mean that a court would proceed on to make an order under S.133 usurping the powers of the Magistrate and that if disobeyed such persons could be proceeded against under S.188 IPC.

In Ratlam, what was in dispute before Apex Court was whether the order the Magistrate passed under S.133 was appropriate or not. As identified by the Apex Court, the key question they had to answer was whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis (Id. para 1 at p. 1623). The duty that was under consideration was specifically cast under S.123 of the M.P. Municipalities Act, 1961. The SDM was moved to take action under S.133 Cr. P.C. since the Municipality failed to fulfil their obligation under the Act. The Magistrate found the facts proved and made the direction sought. The Apex Court appreciated the activist application of S.133 Cr. P.C. for the larger purpose of making the Ratlam Municipal body do its duty under a statute and abate the nuisance by affirmative action.

In that case, the Magistrate after hearing the parties and being satisfied on the facts granted conditional order against non-applicants under S.133 of Cr. P.C. Later, after taking evidence, the Magistrate passed an order giving certain directions to the Municipality for the abatement of nuisance. This was taken up on appeal before the Sessions Court, High Court and finally before the Supreme Court. The Apex Court proceeded on the footing that the malignant facts of the municipal callousness to public health and sanitation, held proved by the Magistrate, are true (i.e., absolutely no reappreciation of facts). The only question was the consideration of the legal pleas to absolve the Municipality from the Court's directive under S.133 Cr. P.C. (Id. para 8 at p. 1627). The Apex Court found no difficulty in locating as to who has the obligation to abate the public nuisance caused by absence of primary sanitary facility. It then reproduced S.123 of the M.P. Municipalities Act 1961, the location of the statutory obligation. It is in this statutory setting that the Apex Court proceeded to decide upon the propriety of the orders passed by the Magistrate under S.133 Cr. P.C. Thus, the settings in Ratlam Municipality case was totally different from the present case at least on the following points:

(a) The Apex Court was considering whether by affirmative action a court can compel a statutory body to carry out its statutory duty to the community;

(b) Whether there were any legal pleas to absolve the Municipality from the Magistrate's directive under S.133 Cr. P.C. in the light of its statutory obligations;

(c) The Court had no difficulty in locating the obligation to abate the public nuisance and it found the same under S.123 of the M.P. Municipalities Act, 1961;

(d) It justified the Magistrate's order passed in exercise of his discretion under S.133 Cr. P.C. by laying down that when there are jurisdictional facts to his satisfaction to justify an action, the Magistrate would be obligated to issue directions calling for abatement of nuisance;

(e) The magistrate had exercised his powers under S.133 Cr. P.C. and had passed a conditional order, which, after taking the evidence and affording opportunity to the parties, was made absolute.

In para 24 of the present judgment the Court while discussing the Ratlam ratio, observed thus:

"Where there existed a public nuisance this Court require the executive under S.133

Cr. P.C. to abate the nuisance by taking affirmative action on a time bound basis. Otherwise, it will pave the way for a profligate statutory body orpachydermic governmental agency to defy the law by wilful inaction(P.396 AIR)". (emphasis supplied)

The above observation is perceived to be in line with the ratio in Ratlam, which, it is submitted, it is not. The Court, by the above observation, is usurping the discretionary powers of the Magistrate under S.133 Cr. P.C, which was never in the contemplation of the Apex Court while deciding Ratlam. After observing as above, the Court then proceed to reproduce the observations of the Apex Court with regard to the manner in which the judicial discretion is to be exercised:

"Judicial discretion when facts for its exercise are present, has a mandatory import. Therefore, when the Magistrate has, before him all the information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such nuisance should be removed from any public place which may be lawfully used by the public, he shall act. Thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts. The responsibility of the Magistrate under S.133, Cr. P.C. is to order removal of such nuisance within a time to be fixed in the order."(Para.24atp.396 AIR)

It is clear from the above observation that the Apex Court was scrutinising the exercise of judicial discretion by the Magistrate under S.133 Cr. P.C. It never contemplated that any other court could usurp the powers of the Magistrate. The Apex Court was dealing with the nature of discretion of the Magistrate and was categorising the Magistrate's discretion as an obligation when the facts for its exercise are present according to him (the Magistrate). It is in this context that the Court observed that judicial discretion when facts of its exercise are present has a mandatory import.

In the light of the above discussion, it is clear that the Court in the instant case cannot bank on the ratio in Ratlam as a precedent for exercising, all by themselves, the powers vested on a Magistrate under S.133 Code of Criminal Procedure.

Further, there are serious doubts whether the Court can do so, since it is in direct conflict with other fundamental rights of citizens ie., the right to liberty (hopefully not diluted merely because a person is a smoker in public) and right to livelihood, ironically coming under the ambit of the same Article. When fundamental rights are in conflict, the question as to which one should be given more weight arises. There is no discussion about such a possibility in the whole of the judgment. It may be presumed that the Court considers right to life under Art.21 of the Constitution of India to be more important than right to liberty under the same Article, arguably a correct approach. The second limb is, however, more grave. It is common knowledge that thousands of families are directly and indirectly dependent upon the vocation of making the poor man's cigar, the beedis. Their livelihood is undoubtedly going to be affected by this judgment to a considerable extent though there is no mention about this in it. It merely speaks about and counters the argument as regards the possible impact to the State exchequer. When the livelihood of such a vast majority is about to be snatched, it would only be appropriate that at least some schemes are envisaged in the direction of rehabilitating such families lest it should violate the fundamental right to livelihood of such families. This right has been repeatedly upheld by the Apex Court in a plethora of decisions as the most fundamental one since otherwise right to life would lose its meaning. The question of formulation of any scheme for rehabilitation would have come only if such legislation had been brought by the legislature since it would have got the opportunity to look upon the problem in wider perspective. The Courts undoubtedly lack the expertise, all the more a reason to argue that the legislature is the appropriate organ to consider the matter.

Fundamental rights apart, it is pertinent to note that the judgment ought to be viewed from different points. First in the instant case, an act of a person is sought to be brought within the ambit of an offence already defined and in the manner interpreted here it amounts to an addition of a new ingredient. It is necessary to consider whether the Court can, directly or indirectly through the executive, indulge in such an act. It would amount to legislation. And where it is done by the executive as required by the judgment, it amounts to unconstitutional subordinate legislation in the field of substantive criminal law. Do the Courts or the executive have such powers? More so when the offence contemplated is categorised as a cognizable one, at least going by the procedure to the adopted in dealing with such acts. On this count alone the orders envisaged are against the basic principles of criminal law and the solemn spirit of our Constitution.

To sum up, the Court declares that public smoking of tobacco in any form is illegal, unconstitutional and violative of Art.21. The District Collectors are required to pass the particular orders prohibiting public smoking and the police is to take appropriate and immediate measures to prosecute all persons found smoking in public places treating the said act as satisfying the decision of 'public nuisance' as defined under S.268 IPC, in the manner indicated in the judgment by filing a complaint before the competent Magistrate.

As mentioned earlier, the facts as reproduced in the judgment to justify treating public smoking as a nuisance. The means to restrict the same mentioned is, however, anomalous, both substantively and procedurally, as they may not seem appropriate in the light of our statutory and constitutional settings. The net result would be, of course, abridging the liberty of a citizen and violation of the right to livelihood, which are held to be precious and sacred, without following the procedure established by law, a straightforward violation of Art.21 of the Constitution of India. While appreciating the spirit that inspired the Court to come out with this judgment one has to mention that it was not for it to do so. It is for the legislature to do the needful.

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1. In all other cases, exceptions from S.200 are granted when complaint is in writing and made by a public servant in discharge of his official duty only under S.195 read with S.340 Cr. P.C. They deal with restriction of powers of Magistrates with regard to prosecution for contempt of lawful authority of public servants -offences under S. 172 to 188 IPC or in relation thereto.

2. Mohanlal v. State of M.P. (1988) 1 Crimes 614 (MP); KLP Ltd. v. Municipal Commr. of Kamarhati Municipality 1985 Cri. L.J. 26 (Cal); Sukhdev Singh v. Sub Div. Magistrate 1976 Cri. L.J. 462; S. Appana Gowda v. V. Appanna Shetty (1963) Mys. L.J. 273; Mod. Narayana Rai v. State of Bihar 1963 Bih. L.J.R. 279; Dashant v. State (1961) 2 Cr. L.J. 403; Rai Mohan v. Emperor ILR 44 Cal. 61.