The Dawn of the New Millennium

(By Siby Mathew, Advocate, Chief Editor, Kerala Law Times)

The 'New Millennium' or the New Year '2000' which everybody was awaiting for is here, 1999 has passed over with Economic Sanctions by developed countries, Parliamentary elections, Kargil, super cyclones and other turmoils. Present day Social Structure is experiencing the impact of dynamic and galvanic forces with the emergence of so called transitory and progressive programmes and plans. Familiar and time honoured ideas, theories and institutions are thrust into their places making India progress faster in the new Millennium. After effects of the economic sanctions, short Kargil Intrusions and super cyclone in Orissa hasn't retarded the progress of India. Redeeming feature is that 'India' stood as one and helped each other due to the spirit of tolerance and forbearance of the people of India. In the wake of socio-economic changes of the modern times, Judges and lawyers who have been respected and recognised as custodians of civilization have now a challenging and essential role to play in guiding the nation in the new Millennium.

Dawn of Independence was a tryst with destiny with our freedom fighters. Birth of the Constitution was a dream coming true for whom freedom was fought, as repression by British rulers led our people to cherish a desire to have a polity, where this would not happen, and Art.21 having stated: "No person shall be deprived of his life or personal liberty except according to procedure established by law", people of free India felt assured that days of repression were over - their lives and liberties would no longer be play-things of the rulers, and their co-citizens who would rule them henceforth would, in all strictness and situations, be able to take their lives and deprive them of the liberties only in accordance with the procedure permitted by law.

As free India moved forward, it was realised by the conscience-keepers of the nation that Art.21 has many promises to keep, and they sat down to work as custodians of the fundamental rights of the people to see how best the sharpest point of the trident built of Arts.20, 21 and 22, or the apex point of the golden triangle formed by Arts.14, 19 and 21, could be used to save the lives and liberties of persons residing in India from executive excess and how best they can enjoy dignified lives.

We are living today in a very difficult world. It is also not a safe world. We have to rely upon our own unity and strength. But as we look around us we find disunity growing, an increasing sense of disloyalty to our own cause. We hardly seem to realise that we have a destiny ahead of us which is greater than our great past. As a result power is changing hands so rapidly that there is no stability in political life. We are moving erratically, swayed to this side and mat. The Ship of State to be able to make a swift and steady journey to its destination needs to be kept on an even keel and its crew must know how to steer a true course. We seem to ignore the Constitution which must be our compass and instead of fixing our course by that compass we wish to fix the compass to the course.

In the great task of administering justice, the Bar and the Bench are complimentary and interdependent and share the common mission of securing justice to every citizen in the country and of creating a just society midst us. The Advocate pleads for right and against injustice. The Judge fulfills himself in the quest for truth and justice. Together the divine duet of doing justice is played.

In India, today Judges have not merely to adjudicate on rights and wrongs, but have to be sentinals on the qui vive. They face newer challenges, shoulder a vast range of responsibilities in upholding the constitution and the laws. For, Justice is an ampler, truine concept and the Rule of Law a more positive and dynamic idea with socio­economic content and political overtones not implied in them by orthodox jurists. Even Judges are not only deciding cases, as was said of Shelley, pose as beautiful angels, beating in the void their luminious wings in vain. The social goals enshrined in the Preamble to our Constitution, the Fundamental Rights chapter and the Directive Principles of State Policy broadly and vaguely project our current legal philosophy. The judicial organ being part of the State shares the national objective and perspective of political and economic democracy and spells out from the Articles of the Constitution and the Corpus juris of India, the legal framework of a secular society with egalitarian urges, thus departing from the old order and conservative common law concepts. The Judges and the Courts are in a sense, themselves on trial. The forensic institutions and the legal system itself need a new orientation, a modern grammar and vocabulary and simpler techniques of social engineering, if they are not to be accused of exotic expensive, obsolescent and tardy features, Judges should be sensitive to the demanding nature of the judicial process, which strikes at social evils, legislative transgressions and quasi judicial injustices. The magnitude of the danger to the Rule of Law is great in these days of self-righteous violence and mass violation of law where rioting is confused with revolution and organized disregard of law is considered the route to a higher form of democracy. An eye-for-an-eye as a means of Justice leaves Justice and everyone else blind in the end. This is inhuman. If law runs counter to life, you had better change the law, not challenge it. If the constitution hampers progress, you must amend it, not defy it nor deny it. That is the principle of democratic legality.

The lawyer is certainly the champion of his client,- and what client needs not a champion? But he is more than that. He is also a servitor in the Temple of Justice. There is nothing, no science or art, more concerned with human affairs than the law, and that is why an Advocate when devoting his life to the law should as enjoined by Lord Birkett, enlarge the sweep of his vision beyond the purely legal world, so that nothing that is human, or indeed, nothing that affects humanity should be to him common or unclean or unknown. He should also remember the words of Lord Kilmuir that the law to which he consecrates his life is not a venerable antique to betaken down, dusted, admired and put back on the shelf but an old and still vigorous tree firmly rooted in history, putting out new shoots, taking new grafts and from time to time dropping dead wood.

Justice cannot exist without the Law, and the law will not subsist without the Lawyer. And if the world is to continue to have men who, in the words of Justice Homer can live greatly in the law, drink the bitter cup of heroism and wear their hearts out after the unattainable, we must preserve the means of charging men with the spirit of our profession.

Law marches on and on with solemnity and dignity unaffected by controversies and conflicts and Kerala Law Times now enters the 51st year of Publication. We are fully aware that despite our limitations and short comings it was the generous support, valuable co-operation and cordial encouragement extended to us by the entire legal profession that enabled us to grow from progress to progress, from strength to strength and from size to size and we record our heartfelt sincere feelings of gratitude to one and all and request them to continue to extend the same support in future. Our good wishes for a blessed new Millennium. May it bring happiness, prosperity and good health to all and may India go from strength to strength through all of our dedicated efforts.

Judicial Review and Commissions of Inquiry

(By N. Dharmadan, Sr. Advocate, High Court of Kerala)

The Commissions of Inquiry Act, which was modelled on Tribunals of Inquiry (Evidence) Act, 1921 of England, was enacted in India in 1952. The Central Government in consultation with State Governments introduced a Bill No. 39 of 52 in Lok Sabha on 28.5.52. It was passed with some changes and the Act came into force from 1.10.52. This Act has been in operation for nearly five decades and about three hundred Commissions have been appointed by various Governments since then.

The very object of the Act is to enquire into definite matters of "public importance" and killing of harmful and unjustified rumours. The Supreme Court in P. V. Jaganath Rao v. State of Orissa (AIR 1969 SC 215) held "the object of the enquiry to be made by the Commission appointed under S.3 of the Act was to make appropriate legislative or administrative measures to maintain the purity and integrity of political administration in the State."

A Commissions of Inquiry is purely a fact finding agency and its function is "investigatory and inquisitorial in character"(Ramakrishna Dalmia v. Sri. S.R. Thendolker, AIR 1958 SC 538). It can enquire into any matter of public importance. The Supreme Court observed "when Parliament makes law under Art.246, read with Entry 45 in List III with respect to an inquiry for the purposes of any of the matters in List II, such law can never be one for inquiry for the purpose of future legislation by Parliament with respect to any of those matters in List II. Clearly Parliament can make a law for inquiry for the purpose of any of the matters in List II and none the less, so though Parliament cannot legislate with respect to such matters and though none of the State Legislatures wants to legislate on such matters. In our opinion, therefore the law to be made by the appropriate legislature with respect to the two legislative entries referred to above, may cover inquiries into any aspect of the matters enumerated in any of the lists mentioned therein and is not confined to those matters as mere heads of legislative topic".

The Commissions of Inquiry culminate in a report with various recommendations, but the findings contained therein cannot be enforced 'pro prio vigore'. They have no binding force as in the case of a verdict of a court. In Dalmia's case the Supreme Court held "The Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective 'pro prio vigore' and the statement made by any person before the Commission of Inquiry is, under S.6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking any action as by way of securing redress or punishment". Nevertheless the findings of the Commission carry a great weight in public life for the very object of ordering an enquiry is to preserve the purity and integrity of public administration(P.K. Kunju v. State of Kerala, AIR 1970 Kerala 252). The Supreme Court in P.V. Jaganatha Rao's case(AIR 1969 SC 215) has taken the view that "the recommendations of Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial object it has in view." However inquiries under the Act cannot determine "guilty or innocence of any person". Such inquiries are not designed by this Act. They have to be left to the ordinary criminal procedure and the criminal courts. In fact there are no accusers, no accused, defendants, or plaintiffs in an enquiry. It was held by Supreme Court in Baliram v. Justice B. Lentir (AIR 1988 SC 2267). "An enquiry under the Commissions of Inquiry Act, 1952, on the other hand, is of wholly different character. There is no accuser, no accused and no specific charges for trial; nor is the Government under the law, required to pronounce, one way or the other, on the findings of the Commission". The only power of the Commission is to inquire and make a report. The Commission has no power of adjudication in the sense of passing an order which can be enforced by the parties or the Government. It cannot be looked upon as a judicial enquiry in the sense of its being an exercise of judicial function properly so called.

It is pertinent to note that Commissions of Inquiry are not strictly classified into any of the three basic branches of the Government viz., Legislative, Executive and the Judiciary. The Commissions of Inquiry are not part of the State services nor do they legislate or take decisions as a Court of law. Thus the functions which are carried out by these Commissions of Inquiry are not the same as the functions carried out by three fundamental institutions mentioned above.

The report of the Commission has no legal consequences. It is not binding on the parties. It has no effect 'pro prio vigore'. It has no evidentiary value nor can the statements given before the Commission are worthy enough to be used for contradicting the persons who gave the same (Kehar Singh v. State of Delhi Adm., AIR 1988 SC 1883). The Government may either accept or reject the report. There are good number of instances where the Government did not accept the report of the Commission. However a Commission may by statute be a legislative auxiliary or it may by appearance on the clock of judicial procedure, but it remains in essence an aspect of the executive a creature of the prerogative (Royal Commissions of High Courts by Dr. William Hodge page 403). Since there are no guide lines in S.3 to disearn the nexus between the object and the notification constituting the Commission there is scope for misuse of this provision on political or other considerations. The only limitation in the section is that the inquiry must be confined to "definite matter of public importance". Therefore, the inquiry commission should not be appointed for investigating a matter (i) which is not definite, (ii) which is vague, (iii) which is not of public importance, and (iv) which is aimed at character assassination, vilification or exposition of a person because of political or personal considerations to wreak vengence. If the very object and purpose of the appointment of the Commission of Inquiry is far any of the above objects or purposes the Courts will step in to set aside the order.

The conduct of the Commissions of Inquiry and their reports therein have often been reviewed by the Court particularly in view of the fact that the individuals who become the subject of the Inquiry are not afforded the same safeguard as are afforded by the ordinary courts. It is settled law that the public authorities and functionaries are expected to be fair in exercise of their powers. Any abuse of power to the detriment of the public on the part of these authorities is to be condemned (M/s. Chetack Constructions Ltd. v. Om Prakash, AIR 1998 SC 1855). In Electricity Commissions Case ((1924) 1 KB 205) Atkin, J. said "wherever anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdictions of the King's Bench Division exercised in these writs". The enquiry is being conducted by an officer or authority or "body of persons" constituted legally, either by statute or by common law. The final conclusions of these bodies are amenable to writ jurisdiction.

In the judgment in this case, Atkin L.J. had demarcated the limits of jurisdiction of the Courts upon the judicial review on the decision or a finding of a tribunal. It has been explicitly stated that the issue of certiorari is not confined to the control of decision making process of the inferior courts or bodies analogous to Courts, Boards, Tribunals and Commission of Inquiry, in a wide variety of situations; but the emphasis in this regard, is the 'fairness' and 'openness' with which these bodies have acted in coming to the final conclusions irrespective of the fact whether they had exercised quasi judicial or administrative powers. In other words the governing consideration is not the status or identity of the person or authority or tribunal making the order or decision; but whether the person or authority has acted "fairly". It is in this regard that these bodies are amenable to the supervisory jurisdiction of the High Court by means of a writ of certiorari.

Focusing the attention on the term "rights" in the dictum of Lord Atkin some critics and jurists viewed that in Commissions of Inquiry there is no determination of any issue and therefore there is no room for the issue of a writ of certiorari or prohibition. In other words according to them what the Commissions do is only to make investigations and give their suggestions by way of recommendations and the reports only embody their recommendations and nothing more for the courts to judicially examine. Therefore no writ will lie.

But this view had been successfully assailed by many jurists and various judicial decisions. After the well known decisions in R. v. Legislative Committee ((1928) 1 K.B.411) ,Nakkadu Ali v. Jayaratne ((1992) AC 66) and Redge v. Baldwin ((1964) AC 40) it is no longer necessary that the "right" mentioned in Lord Atkin's dictum be an enforceable right.

The extended meaning of the word "rights" was given in R. v. Criminal Inquiries Compensation Board, Ex-parte Lain ((1967) 2 Q.B. 864). In this case, a Criminal Inquiries Compensation Board was appointed under the prerogative of the Crown to determine claims for compensation payable to victims of violence and the persons injured whilst assisting the police and the quantum thereof. Lord Parker, C.J. was of the view that a writ of certiorari would be issued not only to courts, but also to tribunals which derived authority from the Crown prerogative. The significant feature in this case was that the decision of the Board was not an enforceable right and it had no binding effect or force of its own. However it was held that prerogative writs were available to supervise the proceedings of the Board since the determination of the Board could be considered one step in the process whereby the legal status of a person could be altered and therefore it can be concluded that writs were available to supervise the proceedings of the Board. If the award or determination of the Board was going to effect the right or liability, then the person effected is entitled to obtain a writ of certiorari to quash the determination of the Board. In this case Ashworth, J. wished for a substitution of the word "rights" in Lord Atkin's dictum by the words "questions affecting subjects."

Diplock L.J. made it clear in the very same case that the supervisory jurisdiction of courts extends to bodies established by an executive act and to their decisions even if they do not directly affect legal rights. His view is:-

"If no tribunals are established by acts of Government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunals to the supervisory control of the High Courts is based. What are these characteristics? It is plain on the authorities that the Tribunal need not be one whose determination give rise directly to any legally enforceable right or liability. Its determination may be subject to certiorari, notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates. It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect upon such legal rights or liabilities."

Lord Parker, C.J. took similar view in the same case. Referring to Lord Atkin's dictum his Lordship said:

"The position, as I see it, is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have been varied from time to time, being extended to meet changing circumstances. The Judges went further to consider that anybody or persons of a public rather than a private character determining matters affecting subjects and acting judicially is subject to judicial review."

From this one thing is crystal clear that the word "right" has been given a more "flexible" meaning and the Courts are taking a less strict approach to what amounts to "rights" for the purpose of the application of the prerogative writs. In fact the view of Lord Parker, C.J. was that the "right" determined by the Electricity Commissioner upon the formulation of a Scheme were not immediately enforceable since the scheme had to be approved by the Minister of Transport and by resolution of Parliament. Nevertheless the Commissioners were subject to the supervisory jurisdiction of the Court and the Court issued writ of commission. The above observations of Justices viz. Lord Parker, C.J., Ashworth, J. and Diplock L.J. would support the view that the ambit of the writ of certiorari has been enlarged to include the Commission of Inquiry as well within its scope inspite of the fact that ultimate report of the Commission is to be dealt with by the Government either leading to further criminal action or implementation of the recommendations or it may lead to nothing. Whatever the ultimate steps of the Government be, there is nothing to prevent an earlier stage in the process from being judicial in character and subject to judicial review.

In Regina v. Boundary Commission for England ((1983) 2 WLR 458) the Court Appeal applying the dictum in Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. ((1948) 1 K.B.233) held that:

"For present purposes it will suffice to say that the "Wednesbury" principle would or might in our opinion entitle the Court to intervene if it was satisfied that the Commission had misdirected themselves in law, or had failed to consider matters which they were bound to consider or had taken into consideration matters which they should not have considered. It would not, however, entitle it to interfere merely because it considered that, left on its own, it might (or indeed would) have made different recommendations on the merits; if the provisional conclusions of the Commission are to be attacked on the ground of unreasonableness, they must be shown to be conclusions to which no reasonable Commission could have come." However it is made clear that the Courts have the duty by resorting to judicial, review to ensure that Commission of Inquiry Act "most fairly and honestly"; but to what extend the Courts would interfere in the report of the Commission would depend upon the facts and circumstances of each case including the nature of the instructions which have been given by Parliament to the Minister, authority or body concerned.

The observation of Lord Denning M.R. in Re Pergamon Press Ltd?.((1970) 3 All.E.R.535) can be gainfully examined in this connection. The Board of Trade ordered an investigation into Pergamon Press Ltd. under S.165(b) of the Companies Act. The Directors of the Company complained when the Inspectors refused access to certain transcripts of evidence and contended that the Inspectors should have conducted the proceedings like a Court of law. Though the Court rejected this argument of the Directors, Lord Denning M.R. said thus:-

"These proceedings are not judicial proceedings. They are not even quasi-judicial, for they decide nothing, they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings. They do not decide whether there is prima facie case. This would not lead us to minimise the significance of their task. They have to make a report which may have wide reprecussions. They may, if they think fit......order winding up of the Company "........."."They may, if they think fit, make findings of fact which are very damaging to those who they name. They may accuse some, they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions. It may bring about the winding up of the Company". Sachs L.J. said "there was the potential danger of causing harm to the reputation of individuals if the report was published". In view of the possible dangers, the Court took the view that the enquiry should be conducted fairly and the remedy of declaration for breach of fairness is available to the affected party.

In the illuminating judgment in Selvarajan v. Race Relations Board ((1976) 1 All.E.R.12) Lord Denning after surveying all the leading cases held as follows:-

"After an enquiry one need not look for enforceable right created by such an investigation and report and in fact there will not be; but yet there are reports which are really damning and prejudicial to a person's reputation and carrier, for the protection of which writs of Prohibition and Certiorari are allowed, ignoring the rules of natural justice which require specific grounds for its application; but adhering to the concept of "duty to act fairly", the House of Lords also in the case of R v. Commission for Racial Equality, Ex parte Collrell and Rothar ((1980) 3 All.E.R.265) emphasised the requirement of the Commission to act fairly in conducting the enquiry. In R v. Northumberland Compensation Appeal Tribunal ((1952) 1 K.B. 338), While and Collins v. Minister of Health ((1939) 2 K.B.838) and R v. Housing Tribunal ((1920) 3 K.B.334), the Court held that where there is an exercise of jurisdiction depending on erroneous findings of law or fact or that the decision is rendered on a point that was not before the Commission or Tribunal, the Court used to exercise its supervisory power to correct the error or mistake.

In the light of the foregoing discussions and judicial pronouncements it may be observed with certain amount of certainty that Courts have invariably aimed at protection of potential harm of person and issued writ of Certiorari and/or Prohibition whenever the Court is satisfied that there is potential danger of causing harm to the reputation of an individual by the Inquiry Commission and submission of report thereof.

It is obvious that a fact finding inquiry into specific allegations of misconduct should be conducted by the Commission strictly applying the principle of "Fair play in action". Otherwise innocent persons would be put to great difficulties. The report of the Commission, though not enforceable, may have wide repercussions. It may have the potential danger of causing harm to the reputation of individuals. In such case the only remedy available to such a person appears to be a declaration for breach of fairness. The Court has a duty, as held by Lord Parkar, C.J.(R v. Birmengham City Justice ex parte, (1970) 3 All.E.R.945 "the Justice in the exercise of his functions was under a duty to act openly, impartially and fairly". The Court by exercising the supervisory jurisdiction can either halt the proceedings of the Commission of Inquiry by allowing writ of Prohibition or quash the report/decision by a Writ of Certiorari. It is lamentable to state that the Courts in India are not showing so much "boldness" in protecting the rights of persons involved in the enquiry by granting relief as had been done by the English Courts as pointed above. Hence accordingly to me time has come for the Legislature to step with suitable amendments in the Commission of Inquiry Act for streamlining and laying down the standards for the scope of Judicial review in the interest of the really affected persons for the protection of their rights and grant of relief. The absence of sufficient safeguards to protect the reputation of innocent individuals involved in the enquiry, has been pointed out as a glaring weakness, by the Law Reforms Commission, in the present Commissions of Inquiry Act.

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.