'Training Trials' - Judicial Reflections

(By P. Nandakumar, Advocate, Ernakulam)

1. 'Justice delayed is justice denied' is a maxim which is often quoted in legal as well as common parlance for quite a long time. Our Constitution has guaranteed the right for protection of life and personal liberty under Art.21, which has been given wide meaning and covers a vast horizon of rights as has been explained in various decisions of the Supreme Court. The terms 'Life' and 'Liberty' also find place in the 5th and 4th amendments to the U.S. Constitution. These terms were explained by Justice Field in Munn v. Illionis1 that "By the term 'life' as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world....................... By the term 'liberty', as used in the provision something more is meant than mere freedom from physical restraint or the bounds of a person". The 6th amendment to the U.S. Constitution declares that "in all Criminal prosecutions the accused shall enjoy the right to a speedy and public trial”. But this right is not expressly provided in our Constitution. On the other hand originally in A.M. Gopalan v. State of Madras2 the right to speedy trial was not recognised as a fundamental right until R.C. Cooper v. Union of India3 upheld the said right.

2. The guarantee enshrined under Article 21 is that no person shall be deprived of his life or personal liberty except according to procedure established by law'. In what manner should the 'procedure established by law' be construed is dealt with by the Supreme Court in Maneka Gandhi v. Union of India4 wherein it is held that what has been contemplated in Art.21 is a 'fair and reasonable procedure'. In Raghubir Singh v. State of Bihar5 the Supreme Court further held that the question whether the right to speedy trial has been infringed is ultimately a question of fairness in the administration of criminal justice, relying on the principles laid down In Re H.K. (An Infant)6 that even 'acting fairly' is of the essence of the principles of natural justice.

3. In Barker v. Wingo7 the United States Supreme Court held that where the right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been sufficient to quash a conviction or to stop further proceeding. The same view is also taken by the U.S. Supreme Court in other decisions like Strunk v. United States8, United States v. Mac Donald9, United States v. Hawk10 etc. In Bell v. Director of Prosecutions, Jamaica11 the Privy Council has also considered the question of delay and the circumstances attributable like the negligence of the prosecution or defence tactics, and the likelihood of prejudice caused to the accused.

4. The question whether the right to speedy trial forms part of the fundamental right to life and liberty guaranteed under Art.21 has been answered in the affirmative in various decisions of the Supreme Court right from Hussainara Khatoon (I) v. Home Secretary, State of Bihar12. The same dictum was also followed in catena of decisions like State of Maharashtra v. Champalal13, Kadra Pahadiya (I) v. State of Bihar14, Kadra Pahadiya (II) v. State of Bihar15. Again in Sheela Barse v. Union of India16 also the Supreme Court reaffirmed the principle that the right to speedy trial is a fundamental right implicit in Art.21 of the Constitution and if the same is violated its consequence would be that the prosecution would liable to be quashed.

5. In A.R. Antulay V. R.S. Nayak17, a Constitutional bench of the Supreme Court, after exhaustively considering all the decisions on this aspect, further clarified that apart from Art.21, right to speedy trial is also embodied in S.309 of the Code of Criminal Procedure. Further, the Supreme Court also gave 11 propositions meant to serve as guidelines inspired by the principle that the right to speedy trial flows from Art.21 and encompasses all the stages. The court also quoted with approval the observations of Justice White in United States v. Ewell18:

"......the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and' whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances."

6. In Kartar Singh v. State of Punjab19 while considering the validity of the Terrorist and Disruptive Activities (Prevention) Act, another Constitutional bench of the Supreme Court further affirmed that right to speedy trial forms part of Art.21 and ensures a reasonable, just and fair procedure. In "Common Cause" A Registered Society (I) v. Union of India20 the Supreme Court issued revolutionary guidelines for the release of under trials languishing in jail for long periods, which was further modified in "Common Cause" A Registered Society (II) v. Union of India21.

7. Recently in Raj Deo Sharma (I) v. State of Bihar22 the Supreme Court issued further guidelines supplementing those laid down in A.R. Antulay's Case17 which was further clarified in Raj Deo Sharma (II) v. State of Bihar23.

8. In short, on an evaluation of the dictum laid down in the above referred decisions, it could be safely concluded that right to speedy trial, though not enumerated as a fundamental right in the Constitution, is part of fair, just and reasonable procedure implicit in Art.21 and is reflected in S.309 of the Code of Criminal Procedure, 1973 and encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial.

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1. (1876) 94 U.S. 113.

2. AIR1950 SC 27:1950 SCR 88.

3AIR1970 SC 564 : (1970) 1SCC 248.

4. AJR1978 SC 597 : (1978) 1SCC 248.

5. AIR1987 SC 149: (1986) 4 SCC 481.

6. (1967) 1 All. ER 226 : (1967) 2 QB 617.

7. (1972) 407 U.S.514.

8. 37L Ed.2d 56 (1973).

9. 56 L Ed. 2d 18(1977)

10. 88 L Ed.2d 640.

11. (1985) 2 All E.R. 585

12(1980) 1 SCC 81 : AIR 1979 SC 1360

13. AIR 1981 SC 1675 : (1981) 3 SCC610

14AIR 1981 SC 939

15. A1R1982SC1167

16. (1986) 3 SCC 632

17. AIR 1992 SC 1701 : (1992) 1 SCC 225

18. 15 L Ed. 2d 627.

19. (1994) 3 SCC 569.

20. AIR 1996SC 1619 : 1996 (2) KLT 820 (SC)

21AIR 1997 SC 1539:1997 (1) KLT 366 (SC)

22. AIR 1998 SC 3281 : 1999 (1) KLT 173 (SC)

23. (1999) 7 SCC 604 : 2000 (1) KLT 463 (SC). 

John Deserved a Conviction Itself

(A dissenting Note on the comment on 1999 (2) KLT 699 John v. George)

(By V. Sathyaseelan, Advocate, Haripad)

The meaning of receipt of information obtained in proviso (b) to S.138 of the Negotiable Instruments Act, 1881 had been discussed in detail in page No.29 of the Journal Section of KLT 2000 (1) Part 13 issue by Advocate Shri. M.R. Rajendran Nair expressing his valuable view on that point. Receipt of information according to him is not one which shall be in writing, but it can be had orally, visually or on any other mode of communications. My humble view is that, but the boot is on the other leg. The dictum in 1999 (2) KLT 699 was laid down by his Lordship Mohamed Shafi concluding his analysis on the point referring to different authoritative lexicons too. I feel that the view taken by the honourable Judge is absolutely the righteous. In addition to the discussion made by his Lordship, I may add a word more to distinguish the meaning of the words "receipt of information". As the lexicons refer the word receipt is one which is rooted on a document. So it is unnecessary to say "a written receipt of information". When "receipt" itself is a word which is one implied to be in writing, the legislators were conscious enough to put the English language in its pure and proper form and not make it upright down by inserting a word "written" just before the word "receipt".

The case would have been different if the proviso ran as follows "within 15 days of receiving information". Then the interpretation given by Shri. M.R. Rajendran Nair would have been correct, because receiving information can be by oral, visual or on any other mode of communications. Therefore, the condition precedent for applying S.138 exists. In a nutshell, John deserved a conviction and conviction itself.

Rape and Punishment

(By M.V. Rajesh, Advocate, Chalakkudy)

Rape is as old as any other offence known to mankind. It is a heinous offence which involves invasion of most dignified aspects of womanhood which shakes the foundations of the victim's life. A rapist should be awarded with appropriate punishment and he deserves no clemency. Our penal provisions prescribe life imprisonment as maximum and also provide specified minimum if there is no reason for a lesser punishment. The existing provisions are comprehensive and exhaustive. Widening vistas of death penalty without considering its consequences will affect the whole philosophical basis and may defeat the very object of criminal justice system.

The suggestion to award capital punishment for rape was rejected by the Draft Committee of Indian Penal Code for some well founded reasons. Our penal system is built upon certain values and sanctity of life is the most prominent one. Lord Macauly pointed out that if punishment for murder and rape are equalised there is a danger of developing a tendency to do away with the victim, who will otherwise become the most detrimental piece of evidence against the accused. The distance between rape and murder will be substantially reduced. Such a position is not desirable in a balanced criminal justice system. The legislative object for not awarding death penalty under S.376 is preservation of life of the victim rather than that of the accused. This reasoning is not extinguished now, instead it has been further strengthened in course of time.

The 'mens rea' for murder and rape are entirely different. Our penal statutes are systematically arranged so as to include the ingredients of offences in several distinct Sections. 'Mens rea' varies from offence to offence. Suppose in a hypothetical situation, immediately after rape is being committed, the victim challenges the accused that she will take revenge by ensuring him death sentence. Annoyed and scared by hearing this, the accused kills her in order to save himself by destroying evidence. Here the apprehension of punishment of one offence acts as an abetment for the commission of another offence. The legal consequences intrinsically transforms his 'mens rea' while choosing for a better option. If punishment for rape and murder are made identical this danger will be the result.

In modern times, suicidal squads are more frequent and often human bombs strikes. If death penalty is imposed for rape there is every chance for its probable misuse. If a woman wants to execute a person for whatsoever reason, she can trap him if she decides so. Suppose, after inducing and submitting herself for sexual intercourse, in case she denies 'consent', it is virtually impossible to rebut the presumption, if it is well planned. People may adopt this method by using hired woman for high reward in order to assassinate character and person of their enemies. This could be the most modern sophisticated technique for eliminating a person from the face of the earth in a 'legalised' manner. This possibility cannot be turned down by simply stating that Indian women are not prone to such kind of self-humiliation. In puranas, if Devendra can successfully depute Menaka to flatter his rivals, in these days where even corporations are constituted to evade criminal liability, there is even chance for invoking state sponsored execution.

The object of punishment is manifold. It is not merely to console the victim. If any punishment is formulated without taking into account of the causes, then it will be ineffective. Hon'ble Union Minister Mr. L.K. Advani suggests capital punishment for the offence of rape stating the reason that 'Raping a woman is a much more heinous crime than murder because rape reduces a woman to a state of living corpse'. This incentive legislative steps had been recommended to avoid her from becoming a living corpse and the ultimate result will make her into real corpse.

Earlier, 'Sati' was approved by society so that a widow can have a terrible death instead of a horrible life. Divinity was also attributed and reward was offered when she reaches the other world. The value uphold was sanctity of death rather than that of a miserable life. The reports from Sathpura clearly indicates that this social evil is still persisting in the minds of the people. Recently, Dr. Rastogi, an associate of Sangh parivar declared with pride in his autobiography that he had shot dead a Woman during the Indo-Pak partition period. The incident occurred when some Hindu communalists led by him started fighting between themselves while claiming for a beautiful Muslim woman. In order to save her from ravishment, he found this solution of killing her at once. He never made any attempt to prevent his fellows from causing the offence. Is it justificatory under the lesser evil theory?.... Now, the very same renovated neo-hindutva principle is being extended for converting rape into a capital offence. . Thus, women are elevated and treated as symbols of Goddess and what happens in reality is that the other world comes closer to her. 

The Need for Accountability in the Administration of Justice

(By Sunil Kumar Cyriac, Guest Lecturer, School of Indian Legal Thought)

'Ubi jus Ibi remediam' is an important legal maxim which means that where-ever there is a right, there is a remedy. It is the remedy which makes the right real. If there is no remedy there is no right at all. Our constitution makers gave due emphasis to the maxim and utmost importance was attached to "the right to constitutional remedies" amongst fundamental rights. Similarly every statute creating a right provides for the forum for its enforcement and speaks of the remedy in case of violation. With the development of the society new rights in the forum of consumer rights, human rights, intellectual property rights and environmental rights etc. are gaining recognition and importance. New fora for the enforcement of such rights are established and eminant jurists are heading such fora for the enforcement of such rights. People from different walks of life also now form the quorum of such courts and tribunals.

But if a person approaches the judiciary for the redressal of any dispute or for the administration of justice and if he happens to suffer some injury due to the negligence of the judge presiding over, there, then there arise a question whether such person has any right against judicial negligence? If such person has any such right whether such right is protected? Or whether any remedy is provided for the violation of such rights? Answers to these questions are very complicated. The English system of administration of justice was such that a judge has a right to decide the case either rightly or wrongly. Our legal system owes much to the English legal system and such a system was followed in India also. Subsequently the Judicial Officers Protection Act, 1850 (Act 18 of 1850) and the Judges Protection Act, 1985 (Act 59 of 1985) were enacted.

Judicial Officers Protection Act provides that "No Judge, Magistrate, justice of peace, Collector or any other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in discharge of his judicial duty whether or not within the limits of his jurisdiction provided that, he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of, and no officer of any court, or other person bound to execute the lawful warrants or orders of any such Judge, Magistrate or justice of peace, Collector or any other person shall be liable to be sued in any civil court for the execution of any warrants or order which he would be bound to execute, if within the jurisdiction of the person issuing the same"(Sec. 1 of the Judicial Officers Protection Act, 1850).

Therefore under the provisions of the Judicial Officers Protection Act, a judicial officer is not liable for anything done by him in his judicial capacity provided that he had jurisdiction in that matter. "The protection given to the judicial officers are absolute, and no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly or without reasonable or probable cause suffices to found an action. But the protection does not extend to acts purely extrajudicial or alien to the judicial duty of the defendant. Any act which is not done in discharge of his judicial duty is outside the section. The protection offered to the judicial officers rests on public policy. To secure that protection it must be shown.

1. That the defendant was acting judicially

2. That he made that order in discharge of his judicial duty.

3. And that it was within the limits of his jurisdiction or even without jurisdiction, he in good faith believed himself to have jurisdiction to do or order the Act complained of” (H. W. F. Dsouza v. Chandrika Singh AIR 1966 M.P. 223).

In order to give additional protection to the judges and others acting judicially, the Judges Protection Act, 1985 was enacted and the provisions of the Act provides that "No action either civil or criminal shall be entertained against a person who is or was a judge for any act, thing or word committed, done or spoken by him when or in the course of acting or purporting to act in the discharge of his official or judicial duty or function"(Sec.3 (1) of the Judges Protection Act, 1985).

Therefore we can see that "an act done or ordered to be done by a judicial officer in the discharge of his judicial duty is within the limits of his jurisdiction he is protected even if he discharges that duty wrongly, irregularly or even illegally and the question of good faith does not arise. Even if his act is outside his jurisdiction, still he is protected, if at the time of doing or ordering it, he in good faith believed to have jurisdiction to do or order it."(H.W.F. Dsouza v. Chandrika Singh AIR 1966 M.P. 223).

Therefore after perusing the statutes and judicial precedents in this behalf, we can rightly infer that a person, at present does not have a legal right against judicial negligence, because, there is no remedy what so ever for a person against judicial negligence. Another important point to be noted is that wide discretionary powers are given to judges for the administration of justice. In many such cases even guidelines are not fixed for the proper exercise of such discretionary power. Therefore there are great chances that such discretionary power may be exercised arbitrarily. Judiciary being the sentinel of the quivive the guardian and protector of the fundamental rights as well as other rights, every action and every decision of it should be in compliance with the principles of non-arbitrariness. If the judicial discretion is subject to arbitrariness much of its efficacy may be eroded and people may lose faith in the administration of justice. It is only on the judiciary the people trust now-a-day s and people believe that judiciary is the only way leading to the temple of justice.

Of course if a person is aggrieved by the decision of a particular judge, or if he feels that he is a victim of judicial negligence, he can prefer an appeal and get the impugned judgment corrected by the appellate Court. But the majority of people in Indian are poor and are unable to prefer and appeal due to some reason or other, and get the judgment reversed at the appellate stage. It is also to be noted that the remedy by way of appeal is only to correct the wrong decision and he has no right nor remedy against the concerned judicial officer at whose instance the wrong decision has been pronounced nor has he any right to get compensation for preferring an appeal and to get the wrong decision corrected by the appellate Court. Adequate steps are to be taken to fill the lacuna and to deal with the matter. It is advisable that notice of every appeal shall be given to the lower court or to the particular judge whose decision is appealed against and if the judgment was reversed in appeal and the appellate court found that there was gross negligence or wilful disregard to law, precedent or accepted principles of justice, the party who preferred an appeal shall be adequately compensated by the State. Though the compensation must be paid by the State, the notice of appeal, the appellate judgment and the details regarding compensation etc. must be sent to the particular judge to serve as a reminder. Every appeal memorandum shall be allowed to be drafted in such a way to claim compensation for the injury suffered due to judicial negligence.

As statutes and precedents stand now there is absolute and complete immunity to the Judges for everything done or spoken in the course of administration of justice. Even if the judge who does anything illegally, arbitrarily, mala fide or even fraudulently his action is protected as per the provision of the Judicial Officers Protection Act or the Judges Protection Act. The judicial officers are the only category who are protected completely from liability for whatever said or done by them in the course of their duties. It is time to make necessary changes to these statutes to take away the complete immunity of the judicial officers. It is true that reasonable immunity and protection are necessary for the Judges for acts done by them in the course of administration of justice. But such immunity and protection in no case be absolute and complete. They should be reasonable in every respect. "As stated in 30 Halsburry (Simonds) 707, the object of judicial privilege is not to protect malicious or corrupt judges but to protect the public from the danger to which the administration of justice would be exposed, if the persons concerned there in were subjected to enquiry as to malice or to litigation with those whom their decision might offend. It is necessary that such persons would be permitted to administer the law not only independently and freely and without favour but also without fear". Otherwise as it was once said "No man but a beggar or a fool would be a judge" (H.W.F. Dsouza v. Chandrika Singh AIR 1966 M.P. 223).

"In an ordered community the Courts are established for the specific settlement of disputes and nor the maintenance of law and order. In the general interest of the community it is imperative that the authority of the Court should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned their own dignity, it is because the very structure of the ordered life is at risk if the recognized courts of the land are so flouted that their authority wanes and is supplanted." (Bata Abdul Khan v. A.D. Sawanth J.M.F.C. Nagpur 1994 Cr. L.J. 2836).

There was a time when all the medical practitioners were kept outside the purview of the consumer protection laws and from liability for the acts done by them in the course of their medical practice considering the nature of the acts done by them. But now the situation was changed and they were also made liable under the consumer protection laws since it was found that the ultimate interest to be protected is that of the whole society and not that of a small class of the society. Likewise necessary changes are to be made in the field of administration of justice also.

There is an argument that unless immunity and protection are given to the judges while administering justice, they cannot do their duties without fear, favour, affection or ill will. It is true and every one would agree that reasonable protection and immunity are necessary for the administration of justice. What is to be taken away is the absolute and complete protection for the judges and judicial officers. Likewise there is no rationale in the argument that if complete protection is not offered highly qualified and meritorious persons will abstain from choosing judicial profession, because judicial profession is now-a-days a highly competitive profession and there is no basis for such a fear. It is to be noted that even after bringing the medical practitioners within the purview of the consumer protection and various other laws, all most all the infirmities are cured, complicated and delicate surgeries are performed day-by day and the researches in the above field are augmented with increased vigour and there is no threat wither to the society or its members due to that. But it is a fact that the medical practitioners are now-a-days taking more care in dealing with their patients since they lost their immunity to legal action. Likewise when absolute immunity and protection of the judicial officers are taken away and when they are made accountable for the injury suffered due to their negligence, they may take utmost care and caution in discharging their duties in accordance with law, precedent and accepted principles of justice.

Sri. V.R. Krishna Iyer, The Great Humanist

(By V. Lakshmanan, Advocate, Tirupur, Tamil Nadu)

History is a scene of vivid collective spectacles and formidable individual characters, of unexpected achievements and unforgivable failures. This idea gets correlated with the common perception that every human being belongs to the great orchestration of mankind. Most of us, it must be admitted, play a very minor role or no role at all. Not everyone is able to fit in; some never succeed in finding their place; some perform just idealistic isolated endeavours which are doomed to remain as footnotes in the pages of history. Very few are favoured by fate to the extent of being allowed to compose pieces themselves. Rarer still are those privileged to hear them performed during their life time. Incontestably, Sri. Iyer is one of the personalities favoured by fate. We.......... those who had the good fortune of observing a person who is the very embodiment of passion and compassion towards his fellow-beings — belong to the 'rarer' category.

His retiremental years (only from Supreme Court judgeship) are being spent totally in caring for the dregs of humanity - the dying, decaying and the dispossessed. In other words, Sri. Iyer has turned out to be the truest modern interpreter of human rights and broadened the definition as an all embracing phenomenon in which everyone is accommodated. His intellectual inclination touched the most potent and sensitive social issue - human rights and violations of them.

A viewer in tune with the temper and tempo of times, Sri. Iyer speaks with emotive essence, excellence and exuberance and writes with courage, conviction and confidence. Whether he speaks or writes, he is a healing salve to the victims and vicissitudes of violations of human rights - a consciousness-raising experience. The vigorous tenets of equality with its universalism found its stateliest expression in his write-ups. Sri. Iyer himself relies upon the memorable lines of Charles Dickens which mirror the mind and mood of this millennium in page 9 of his book titled 'The Dialectics & Dynamism of Human Rights in India (yesterday, today and tomorrow)' which are extracted below:-

"The lurid contrast of a divided society of dire distress and dizzy delight is painted with literary power by Charles Dickens in his 'A Tale of Two Cities' of his times:

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way."

He opened new vistas of thoughts and actions to promote social engineering process in this country, nay, the world over. A powerful proponent of the inherent vitality and intrinsic dynamism of human rights, he developed new thought-patterns and redefined the concepts of change. In his battle against poverty, there is a deep rooted commitment to and an understanding of the struggle. His passionate and compassionate outpourings, enormously learned and elementally poetic as always, depict what he stands for and his vision of a world without violations of human rights.

It is beyond doubt and debate that the concept of human rights, as projected in today's content and context, enjoys the much-needed aura, the fascinating element, powerful enough to resist the temptation to be disintegrated, denigrated, degenerated and destroyed. Indisputably, firm resolve has crept into every aspect of it, dispelling misgivings over the fecundity of its functioning, and thus it is the show piece of the universe.

The life and times of Sri. Iyer is a saga of courage in the face of adversities, challenges and depicts his supreme devotion. His approach is practical and pragmatic and yet humane. He lays emphasis on appealing to human elements and sentiments. His message is simple and sound:- use the concept of human rights as a medium to realise the inner strength of human personality.

It is indeed heartening to note that such a visionary and an outstanding individual who gave the globe the concept of human rights and enhanced the enchanting vistas of human rights and equality truly received the approbation and appreciation he deserved for his contribution to the last millennium.

It is he who witnessed the iniquities and starker misseries of life, assimilated them, wrote and spoke most insightfully - a life of mission and soul-stirring saga. In India, there is none like him in sheer scale and scope of thought, action and effect. If fight for human rights as a concept is allowed to be destroyed by subjecting it to the perversity of politics and pessimism, not to speak of the over privileged, that would be the greatest ingratitude to the man who single-handedly resurrected and reignited the movement and fought against the violations of human rights as a panacea to shaping the society to face the complexities of life without a trace of trauma. It is difficult to convey with any comparable degree of eloquence and classicism that he displayed in the field of human rights. Human rights to him is both a task and an art, and, an expression that filled the senses and triggered an emotional experience as new ideas proliferated.

He appreciated the struggle of a million. He wrote for a million. He addressed for a million. He addressed a million. He lived for a million. He was adored by a million. One in a million. And. above all. a million in one, Sri. Iyer.