Judicial Activism - Restructuring the Constitution?

(By Justice K.P. Radhakrishna Menon)

A written constitution is the primary source of authority within a State. In this fundamental law lies the explanation of the Legislature's power to make laws, the Executive's power to govern and administer, and the Judiciary's power to adjudicate. The Constitution in other words, limits by express rules, the powers of the Legislature, Executive and Judiciary. Sir Iver Jennings in his celebrated statement describes this position thus: "Constitutional law is the fundamental law, which determines these authorities (legislative, administrate and judicial), and the general power they exercise". For a successful working of the democratic government, all the three constitutents of the Governments, shall therefore function within the framework of the Constitution. Jurisprudentially speaking, in a democratic set up these three wings of the Government shall strictly confine to their respective fields of activities determined by the Constitution.

The Supreme Court speaking through Bhagawati (J) has restated the above fundamental principle thus: "Every organ of the Government, be it the executive or the legislature or the judiciary, derives its authority from the constitution and it has to act within the limits of authority." Neither the Legislature nor the Executive nor the for that matter, even the Judiciary therefore can act outside the confines of the power, conferred on them by the Constitution. The observation of Frankfurter (J) namely the ultimate touch stone of constitutionality is the constitution itself and not what we have stated about it", is relevant in the context.

Our Constitution, as in the case of every other written Constitution reflects the details of the powers conferred on the three organs by the sovereign, ie., the people. The expression "We the people" in the preamble, confirms that the people of this country and not the institutions of the Government created by the constitution are sovereign. No institution of the Government therefore can claim that it is the sovereign itself. This principle has lucidly been stated by Wills thus: "the power that can make and, unmake the Constitution is sovereign rather than the Constitution which it may make." Hence neither the Legislature nor the Executive nor the Judiciary can take up the role of the sovereign and act, ignoring the limitations imposed by the Constitution. They cannot defy the prescriptions and act as they please. If they do so, their actions will be contrary to the Constitution.

The sovereign, no doubt, has empowered the Judiciary to review the actions of the Legislature and the Executive, and, if the actions are found unconstitutional, the judiciary has the power to declare and decree that those activities shall not affect the rights of the aggrieved person or persons. The sovereign, it would appear, was confident that the judiciary would not cross the limits imposed by the Constitution and therefore did not constitute any authority, competent to declare the actions or decisions of courts as unconstitutional. These constitutional arrangements worked well for about two decades and a half, since the people of India inaugurated the Constitution on January 26, 1950.

The birth of Judicial Activism, in the year 1973, gave a severe jolt to the above constitutional arrangements. The Parliament got the first shock when it was told by the Supreme Court that Art.368 did not empower it to change 'the basic structure' of the Constitution.

Art.368 reflects the delegation by the people of their sovereign power to modify the Constitution by amendment or incorporation of new clauses reflecting their changed objectives and aspirations. In other words, the sovereign by Art.368 has empowered the Parliament to amend the Constitution as and when necessity arose. Art.368 is in general terms and therefore can amend any provision and also incorporate any new provisions in the Constitution. Taking note of this salient feature of the constituent power, the Supreme Court as early as 1951 in the case Shankari Parasad has declared the law thus:- "No doubt, our Constitution makers have incorporated certain fundamental rights in Part II and made them immune from interference by laws made by the State. We find it, however, difficult in the absence of a clear indication to the contrary, to suppose that, they also intended to make those rights immune from constitutional amendment. On the other hand, the terms of Art.368 are perfectly general and empower Parliament to amend the Constitution without any exception whatsoever." This statement of law is consistent with the view of the founders of the Constitution. According to the founders, the constitution shall not be rigid and permanent, not to be changed at all. Pandit Nehru said, "in any event we could not make the Constitution so rigid, that it cannot be adopted to changing conditions. When the world is in turmoil, and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow".

This approach is consistent with the Vedantic approach to the issue. The Constitution belongs to that category of Dharma called 'Yugadharma' - a Dharma, expounded by Smrithi, relevant to a particular period of time for a particular society -and so can be altered or abolished. Smrithis come and go. We had in the past Manu Smrithi, Yagnavalkya Smrithi, Narada Smrithi and so on. These Smrithies became obsolete and irrelevant, when we adopted our Constitution in 1950. No Smrithi can go against the Constitution. It is thus clear that the Constitution, like a Smrithi is liable to undergo changes to meet the requirements of the time. Touching upon this aspect Swami Ranganathanandaji, the present Chief of Ramakrishna Order has said: "therefore, we have now got another Smrithi namely, our Constitution: it is like a Smrithi, which we can change, amend, and alter, being a human contribution, made in response to the changing conditions of society with a view to making human life better and better."

The Apex Court however, later ruled that the Parliament has no power to amend the Constitution, if the amendment is to interfere with the 'basic structure' of the Constitution. "Basic structure" is not defined though the expression has been explained by different Judges in different manner; for instance, "Basic framework" "edifice of the Constitution", "pillars of constitution philosophy" etc. Whether or not an amendment would interfere with the basic structure, solely depends upon the subjective view of the Judge. Such subjective views would be counter majoritarian, ie., inconsistent with the view of the people, the sovereign, who has enacted Art.368 conferring constituent power on the Parliament to amend the Constitution.

It is interesting in this context to take note the following excerpts from an interview which Chief Justice Warren Berger of the U.S. Supreme Court had with Bill Moyers. He said, "Congress can review us and change us when we decide a constitutional issue, right or wrong; that's it until we change it. Or, the people change it. Don't forget that. The people made it and the people can change it. The people could abolish the Supreme Court entirely". "How?" asked Bill Moyers. The answer; "By a constitutional amendment". Remember that this view was expressed by the Chief Justice of a Court which wielded enormous power, even the power to prevail over legislative will.

Some Judges of the Indian Courts however do not concur with the "basic structure". view of the Supreme Court. Bachawat (J) observed that "Such a naked power to amend the Constitution is not given to Judges." It is worth noting here the timeless truth stated by the first Chief Justice of India, Justice Kania. He said, "but, it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of courts justice, to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary, powers too great and too indefinite, either for its own security or the protection of private right".

By assuming the extraordinary jurisdiction, the judiciary has got itself embroiled in turbulent waters of political controversy. Not only that, the judiciary has taken up the role of the sovereign itself. In exercise of this expanded and omnipotent and omnipresent jurisdiction, the judiciary has also trespassed upon fields of activity allotted to the other two wings of the government, by the constitution. Even the most creative of English Judges, Lord Denning has disapproved the trespass. He says "So far as creative work is concerned, so far as active policy is concerned, there the Judges have no hand. They cannot do anything to help the poor or unemployed. They cannot provide housing for the homeless. All social reform must be left to others. So must all political reforms". And in the same strain Diplock (J) has said, "Whilst I should be last - or sitting in this court perhaps the last but one - to say that it is no part of the function of the courts to develop the common law so as to adapt it to changing social conditions, it is no part of its function to provide solutions to sociological problems which call for administrative action by the central or local governments".

The founding fathers of the constitution were not prepared to confer on the judiciary any sovereign power, and that is why they deliberately avoided the use of the expression "due process of law" in the constitution, which expression according to Glanville Austine, would have given courts enormous powers even over political activities and allowed the subjective views of the judges to prevail over the legislative will. The founding fathers, in other words were not prepared to entrust the judiciary with so much powers is clear from the following excerpts from the speech of Pandit Nehru in the Constituent Assembly. "Within limits no Judge and no Supreme Court can make itself a third Chamber. No Supreme Court and Judiciary can stand in Judgment over the Sovereign will of Parliament, representing the entire will of the community". Courts, nonethless, have to considerable extent have amended and rewritten the constitutional provision imposing restrictions on their authority.

Accordingly the American doctrine of 'due process of law' is substituted in the place of the democratic doctrine of "according to procedure established by law". The Supreme Court in Rajan Dwivedi, has clearly admitted this. Vide "The substance of the American doctrine of due process has been introduced in the conservative text of Art.21 of the Constitution."

Verdicts made in exercise of the expanded jurisdiction therefore are more in the nature of the subjective view expressed by the Courts, and hence without constitutional support.

A question immediately would arise. How to implement or enforce the commands or directions contained in such verdicts, in case they are defied. Commands or directions of courts are usually respected and implemented because failure to obey them would result in imposition of punishment for contempt. This principle sounds good, so far as the verdicts are lawful. But what about the verdicts which do not exist in the eye of law as they are unconstitutional. Disobedience thereto, therefore may not constitute the offence of contempt of Court. But then, who is to hold that the order is nonest. The Constitution has not constituted any authority. Courts also cannot take any decision in this regard because the court will be biased. It is interesting in this context to note the law declared by the Supreme Court, though in another situation, namely, "no one howsoever highly placed and no authority, howsoever lofty, can claim that it shall be the sole Judge of the extent of its power under the constitution or whether its action is within the powers of the constitution laid down by the Constitution." These verdicts therefore shall remain unenforceable. The authority which ordinarily is bound to obey the commands can effectively raise such questions and circumvent even the order or directions issued in cases where apparently, no such question arises. We shall remember that the Courts cannot enforce an order directly because judiciary has no machinery or institutional means of its own to supervise and implement its orders. To put it differently the judiciary simply is not having either the legislative or administrative power. Even the order punishing the contemnor would therefore be like a line drawn on water ie., ineffective. In these circumstances, 'judicial activism' even in the field of human rights and civil liberties will become a mirage.

By expanding its interpretative jurisdiction, the judiciary, according to constitutional experts, has assumed the role of the sovereign. The remarks of F.S. Nariman, one of ours best constitutional lawyers is telling. He says, "'in asserting the basic structure theory the Supreme Court of India has in this sense asserted political power - in the guise of judicial interpretation.......By propounding it the guardians of the Constitution have in one bond become the guardians over the Constitution. Constitution adjudicators have assumed the role of constitutional governors". If the other two wings of the Government, the Legislature and Executive are also to expand their powers, ignoring the limitations prescribed by the Constitution, like the judiciary, the result will be an impasse, if not a pandemonium. If that happens, and ere long that may happen, unless the three institutions strictly confine their activities to the respective fields of activity, recognized under the Constitution, democracy, which the people of India have voted for, would become a mockery and get metamorphosed into mobocracy; And our Constitution, which is the express embodiment of the 'Rule of law', will cease to be the fundamental law of the country.

To forestall the happenings, the sovereign, ie., the people may have to step in and restructure the Constitution. The Central Government have already a proposal in this regard. The convening of another Constituent Assembly for this purpose however is not feasible. There can therefore, be a debate on these matters first; formulate the provisions and place them before the people for their approval. In other words hold a referendum and if the people approve the provisions, then they will automatically form part of the Constitution. This mode of restructuring has become necessary in view of the law stated by the Supreme Court that Parliament under Art.368 cannot amend the basic structure of the Constitution.

Once a Justice Always a Justice ?

(By T.P. Kelu Nambiar, Senior Advocate, Ernakulam)

English Judges were supposed to owe more loyalty to abstract principles of justice than to the Sovereign who appointed them. (Encyclopedia Americana). Thus came the prefixal appellation 'Justice' to English Judges.

The word "justice" may be used interchangeably with "judge". It is a word of broader signification also, and it is broad enough to include the judge of any court in the State. As used in statutes (English and American), the term is generally construed as the equivalent of a "justice of the peace". The term 'police justice' is used to designate a Magistrate charged exclusively with the duties incident to the common law office of a conservator or justice of the peace. (Corpus Juris Secundum)

By force of constitutional or statutory provision, the period of service of Judges may compulsorily terminate after they have attained a certain age.

According to Corpus Juris Secundum, Judges are not courts; Judges exercise the power vested in courts as such, and not in them as officers qua officers, that is to say, the jurisdiction is vested in the court, not in the Judge, however composed, whether of one Judge or several. The authority and powers of the Judge are incident to, and grow out of, the jurisdiction of the court itself. Whenever a Judge is present at the time and place designated by law for the transaction of judicial business, his acts may be considered as the acts of the court of which he is Judge. An act required to be performed by a Judge may be lawfully performed by him sitting as a court. In India, the Judge has no authority to perform judicial functions after expiration of his term of office. Therefore, as the word 'justice' is interchangeable with Judge, when an Indian Judge ceases to be Judge, he ceases to be a 'justice'.

Judges of the Supreme Court or the High Courts, in India, could seek other employment, or could engage themselves in legal practice, after retirement, unlike in England and in the United States, where originally the appointments were practically for life. Therefore the question of seeking another appointment after retirement did not arise. On 7th June 1949, Dr. B.R. Ambedkar said, in the Constituent Assembly: "It must also be remembered that in the United States practically an office in the Supreme Court is a life tenure so that the question of a person seeking another office after retirement can very seldom arise either in the United States or in Great Britain." In England, even after the retirement age was fixed, retired Judges are called to sit in Court when there is paucity of Judges. That means, there a Judge is always a 'justice' once he is appointed a 'justice'.

A retired Indian Judge could seek other job, or practice law. He can never use the prefix 'Justice' after retirement.

English Judges are not required to retire until the age of 75 (or 72), and are sometimes invited to remain on the Bench after retirement. Retired Judges are also, as already mentioned, occasionally called to sit on Bench, and they do so. Retired English Judges, unlike their counter-part in India, do not resume legal practice.

David Pannick has noted: Vice-Chancellor Bacon was retired at the age of 88 in 1886. At the age of 92, Lord Halsbury sat in a case heard by the Appellate Committee of the House of Lords in 1916. Lord Denning was appointed to the Bench prior to 1959; so he was not bound by the compulsory retirement age introduced in that year. He resigned as Master of the Rolls in 1982 at the age of 83. Oliver Wendell Holmes sat on the U.S. Supreme Court until after the age of 90. Salathiel Lovell was on the verge of 90 years of age when appointed a Baron of the Court of Exchequer in 1708. He sat for the next five years.

So they continued to be 'justice' once appointed 'justice'.

I know the case of a retired (Indian) Judge of the High Court putting up his residential building, (after retirement), and fixing a name-plate, prefixing "Justice" to his name. Retired Judges practising in the Supreme Court call themselves 'Justice' so-and-so. I know retired Judges booking their travel berths for 'Mr. Justice' so-and-so. It is difficult in these days, in certain circumstances, to know who is the sitting 'justice', and who is the quitted 'justice'; who is the current Judge and who is the quondam Judge.

Sri. V.R. Krishna Iyer, who was not just another Judge, never calls himself Justice V.R. Krishna Iyer. His headed writing paper shows: 'V.R. Krishna Iyer, Former Judge, Supreme Court'. Sri. M.S. Menon & Sri. V.R Gopalan Nambiar call themselves as 'Retired Chief Justice'. But a large majority of retired Judges use headed writing paper prefixing 'Justice" to their names.

All in all, I venture to emphasise the point, and this is the nub, that in India once a justice is not always a justice. I make an unsubsidised demand that retired Judges shall not use the prefix 'Justice' to their names. I know of Professor Emeritus, Arch¬bishop Emeritus, Lawyer Emeritus, but not Justice Emeritus.

Tailpiece: Some to the fascination of a name surrender judgment hoodwinked:

                                                                                                                                      - William Cowper

Judgment Information System

LAW LINKS

(Compiliation of P.B. Sahasranaman, Advocate, Kerala High Court)

AMERICAN ASSOCIATION OF LAW LIBRARIES - AALLNET -

http://www.aallnet.org/index/asp. This site is the source for information about the American Association of Law Libraries and the profession of law librarianship. It provides, search facility.

ALL INDIA REPORTER- http://www.allindiareporter.com./start.htm. This site contains the full text of the judgments which are reported in the famous old law journal All India Reporter. The judgments reported on All India Weekly Reporter are available.

BUTTERWORTHS- http://www.butterworths.com/ - Butterworths online services offer authoritative legal and taxation information services to fit every need. LEXIS-NEXIS Professional provides access to full-text online legal, news and business information services.

CAUSE LIST OF ALL COURTS IN INDIA- http://causelists.nic.in/ This site contains the cause list of all the courts in India. Site maintained by National Informatics Centre.

CYBERLAW INDIA- http://www.cyberlawindia.com/ Your One Stop Portal for everything on Cyber law in India. It contains all the information about the Information Technology Bill, Cyber Law judgments, Articles on Cyber law.

GOVERNMENT LAW COLLEGE MAHARASTRA- http://www.glc.edu/index2.htm This is the official web site of Government Law College Maharashtra. It provides all information about the institution including its library contents.

HARVARD LAW SCHOOL- http://www.law.harvard.edu/- Established in 1817, Harvard is the oldest law school in the United States of America. The School provides comprehensive and enlightened training to prepare its graduates for law practice, for public service at the local state, federal and international levels, and for law teaching and legal scholarship.

INDIAN PROPERTY LAWS. COM-http://www.indianpropertylaws.com/ The most comprehensive web site on property laws. The sub heading provides information for registration of documents, important case laws and a bundle of specimen agreements like agreement for sale, gift deed, trust, power of attorney, partnership etc. Besides this it also contains the Maharashtra Rent Control Act, Co-operative Societies Act. Relevant provisions of Income Tax Act, etc. Site maintained by Remani Legal Services Pvt. Ltd. Mumbai.

INDLAW.COM.- http://www.indlaw.com/ The largest electronics resource base on Indian legal, tax and regulatory issues. A good site for the lawyers. It has Indian law news, the frequently asked questions on certain legal matters, the essential law for business, and a large number of links to various sites on commercial laws, practice. international laws, Human rights and resources.

JUDGMENT INFORMATION SYSTEM- http://caselaw.delhi.nic.in/caselaw/ -Judis is a comprehensive On-line Case Law Library containing judgments of Supreme Court of India reported from 1950 onwards. Good searching facility is also provided. Entry to the site is thorough membership and fees are at subsidized rates. There are two sections: Judis is a comprehensive and searchable on-line case law library containing all reportable Supreme Court judgments since 1950, and the India Code Text base a repository of all central acts of Parliament since 1834. Maintained by National Informatics Centre, New Delhi.

KERALA HIGH COURT - OFFICIAL SITE- http://highcourtofkeralanic.in.welcome.html. This is the official site of Kerala High Court, which contains the bio data of judges, calendar cause list and a lot more.

KERALA HIGH COURT- http://www.keralahighcourt.com This site contains a lot regarding the Kerala High Court. A lot of judgments and includes the daily important news from the court. The full name of advocates and their addresses also available in this site. This site provides a lot of links to other sites useful for lawyers.

LEGAL REFERENCER- http://commercenetindia.com - This site is a good referencer of Civil, Criminal, Constitutional Laws, Intellectual Property laws, Tax and Labour laws of India. Most of the important legislations full text is available including the Stamp duty in various States.

LAW SCHOOLS AND COLLEGES IN THE WORLD. A2 Z Colleges.com- http://www.a2zcolleges.com/. This site gives a complete list of Law Colleges in the World in alphabetical order. - (Not Indian Colleges).

LAW COM DICTIONARY - http://dictionary.law.com/ As the name suggests it is good dictionary for the words for which we require definition. Search for any words relating to law or legal matters. Different types of search facility is also provided in this site.

LEX SITE. COM- http://www.lexsite.com/ This site contains daily news on law. It provides information on direct taxes, indirect taxes, foreign exchange, corporate laws and provides links to a lot of other law related sites. A good compiliation of bare Acts is one of the good feature of this site.

LAWS IN INDIA. COM- http://www.lawsinindia.com/ - A well maintained site for Indian site. The site contains a lot of information on civil, criminal, constitutional, environmental, company, labour property, foreign trade, taxation laws. It also gives information on upcoming legislations.

LEGAL DOMAIN NETWORK. - http://www.kentlaw.edu/lawnet/lawnet.html This site is a joint venture of several law schools. The Legal Domain Network carries a substantial number of law-related list server discussion lists. Since the Legal Domain Network uses USENET technology, it is available as a newsfeed site to your law-related organization or as a server to your USENET reader. An American site.

NATIONAL INFORMATICS CENTRE- http://www.nic.in/. This site provides all the Government of India and some State sites maintained by the NIC. It has got links to all Government Departments, Ministries, Banking and Financial Institutions, Educational Institutions, Indian Missions, etc.

PUBLIC INTEREST LITIGATIONS OF KERALA HIGH COURT–http://www.geocities.com/sahasram 2000/ This site hoisted by Sahasranaman, Advocate of Kerala High Court contains all the judgments of public interest rendered by the Kerala High Court, a digest of Environmental and the Public Interest Cases, and Laws relating to Telephones etc. It also contains a lot of other details which are very useful to the lawyers and the persons who wanted to know about the law.

SUPREME COURT ON LINE- http://www.supremecourtonline. com/index.htm This site contains the more recent judgments of the Supreme Court of India. A private web site owned by M/s. Chawla Publications.

SUPREME COURT OF INDIA,- http://www.supremecourtofindia.com/. This is an unofficial site containing a lot of information who do not know anything about the institution. So far as lawyers it is less useful. This site is a dedication to the cause of propagating & spreading awareness about the various facets of the Hon'ble Supreme Court of India and its, invaluable contribution to the fabric and growth of India through the medium of Internet. Besides a good photograph of the court, it provides a lot of information on the court.

TAXMAN- http://www.taxman.com A site containing details of the Taxation law s. Recent issue of Taxman and SEBI and Corporate Law Reporter is available. Recent circulars issued by Finance Ministry and Income Tax Departments are also available in the site.

ZEE NEXT- http://www.zeenext.com/legal/index.asp - This site maintained by the Zee Television group is one of the best sites which provides information on Indian Laws. It has important judgments, lax lexicon, humour, and a lot of bare Acts.

Marriage - A Spell Bind or Hell Bind

(By V.K. Babuprakash, Judicial First Class Magistrate, Kaunagappally)

The Criminal Courts in Kerala are in a flux as they are flood gated by the Matrimonial offences punishable under S.498(A) IPC. The recent statistical ratio published by the Government tell the tale that matrimonial offences are at a heightening scale. Though one hundred percentage of literacy had been achieved by us along with the tidal movements of women libs organisations, social strata is still filled with the shadow of matrimonial cruelty. We are an ashamed class who once had killed the untouchability demon, class and caste segregation, nevertheless, we have precipitated a new segment of social stigma, in the form of matrimonial cruelty. Society is slowly legalising the concept of dowry in the dark side of matrimonial negotiations and the Dowry Prohibition Act could do only little in the matter as nobody comes up to question the dowry concept in the day light. The reason detre is the sponge like desire and demand of young fellows coupled with the status oriented thinking process of the parents, make way for this kind of social atrocity. It is equally alarming amongst poor, middle and upper middle class sectors of the society. Every young man who is ambitious is very much on the thrust to grab as much dowry and ornaments as he could according to his job status and other things. He day dreams to have a colourful matrimonial life with the dowry money ransomed from his wife's parents. When once fell into the spell of dowry money and its temptations the desire magic does not stop there. Just like the old Chinese proverb "Desire is like the waves of an ocean the one you find, next comes another more mightly chasing the other", the fellow will be avalanched by desire one after another. If the desire is expressed through the four corners of the bed room of the matrimonial home to the wife, probably the woman could not resist it point black. She will think about it in a trance and anguish as to pass it on to her parents as well as their capacity to meet it. If she cannot convey the desire demand and equally the parents cannot meet the same, there starts the trigger head of cat talks, curses and brow-beating from the man's side. Thus, small re-sentiments, communication gaps and the usual wear and tear will be precipitated one way or other digging the gap into deep pits by which each of the spouse gets away from the other. Parents also contribute much to give strong or soft thuds upon the wall of the edifice of marriage which results in shaking the foundation. Modern parents are teaching less the children about the lessons of patience, virtue of simplicity, perseverance and other qualities of life. Those are olden times and now-a-days everybody wants to watch the cable TV and its distorted serial programmes. Slowly media culture eats away the traditional culture which was there in the blood and nerve of society and sure we have to pay for the peril. The outcomes of such like culture are the offences under Ss.498(A) and 304(B) IPC.

Marriage is a discipline of humanity told long ago by Francis Bacon. Ever before that from the commencement of Rig Veda marriage was a well established institution. It was Svethakethu, the son of Uddalaka, established marriage as an institution among Aryans. (Mahabharatha - Adi Parva - Chapter-122). The same was with Greeks and Romans who established the concept of city states from the concept of family. When time began to run by, marriage not only has become a Biological concept but it paved the concept of economic security also equally. As a result in cases wherein economic instability ruled the family, emotional disorder, disenchantment and disillusionment started to disintegrate the spouses. In situations such like, the women had to suffer a lot as they much depend upon the male for economic needs. Bertrand Russel, the famous thinker and writer had exalted in his essay 'Ideas that have harmed mankind' that what mankind had cherished over civilizations of antiquity is the male domination. It made the marriage one of master and slave instead of one between equal partners. It made it unnecessary for a man to please and understand his wife. Russel condemned an old rhyme which sang as follows "A dog, a wife and a walnut tree, the more you beat them, the better they be". Indian culture learns the woman to keep silence about matrimonial cruelties. As divorce is not easy and that chances of remarriage of a divorced woman is more hopeless in the social plateau, women used to suffer a lot keeping the lid of the mind shut. But the legislature was not unmindful about the matrimonial calamities which tend to give unfavourable living conditions to women. So much so during 1983 and 1986 Parliament enacted two major sections in the Indian Penal Code which made a swept in the Social Strata. It is the passing out of S. 498(A) and 304(B) IPC with a presumptive clause of 113B in the Indian Evidence Act. The enactment was so far so good for some time. Slowly women began to exercise their right indemnified by the enactment cases of matrimonial cruelty began to reach-out at the threshold of Criminal Courts. As time went by women began to feel an upper hand due to the rigour of the enactment which made the offences non bailable with a beeline of presumption to underscore it, flood gates of cases began to wave in the Courts. Though many of them are not matrimonial cruelty connected with dowry demand or such like, nevertheless all of them were disguised under the garb of matrimonial cruelty ensconced under S.498(A) IPC. Thus the husbands became sheeps in the shamble.

Cruelty, the expression used in S.498(A) IPC has been given a wide meaning by the Supreme Court in the decision Narayana v. Sridevi reported in AIR 1990 Kerala page 151. "Any harassment of the women with a view to coerce her to meet any unlawful demand for any property or any valuable security also is cruelty." Lord Denning in Sheldan v. Sheldan held that "Cruelty cannot be exhibited and defined in a particular manner in a particular way of acts. The economic and social conditions play a vital role in assimilating the degree of cruelty. The culture and human value of the spouses have to be considered". In a decision rendered in AIR 1985 Delhi at page 76 the Delhi High Court held that "ordinary wear and tear of married life does not amount to cruelty or harassment". So the various High Courts and Apex Court carefully drew the margin line to treat the matrimonial cruelty with other kind of sentimental break down. The task is heavy like swifting the chauff from the grain.

If the society does not wake up from its lethargic black out the matrimonial relationship will become a hell-bind than a spell-bind. One has to have a nostalgic look upon the narration of Jane Austin in her classic Book 'Pride and Prejudice' about the description of her husband by the heroine "She began now to comprehend that he was exactly the man, who in disposition and talents, would most suit her. His understanding and temper, though unlike her own, would have answered all her wishes. It was an union that must have been to the advantage of both." Perceiving the above anecdote, one is quite sure, it does not fit in the kind of spouse the modern marriage visualises about. To conclude, are we thumbing up the saying of Edmund Burke that "Marriage is a confinement and we get reprieve at times" than that of St. Augustine "Marriage is as old as world and as new as moments"?.

"Hartal or Hurt All?" - A Daniel Come to Judgment

(By S. Parameswaran, Advocate, High Court of Kerala)

1. "The life of the law has not been logic, it has been experience. The law embodies the story of a nation's development through many centuries, and, it shall not be dealt with as though it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become" - (Oliver Wendell Holmes, The Common Law, 1881).

2. The above prophetic words of the illustrious U.S. Justice come rushing to my mind when I sit down to pen these lines.

3. The theme of the judgments of the courts is both a mirror and a motor, reflecting the development of the society which it serves and helping to move that society in the direction of the dominant jurisprudence of the day. War, according to the famous aphorism, is too important a matter to be left to the Generals. The question of social injury, inconvenience and nuisance caused by self-styled public men, namely, politicians, is, similarly, too significant in a State like ours to be left to the politicians or the powers that be. This is particularly true of the historical functioning of the highest Tribunal in the State.

4. For the intellectually fastidious, Law seems disconcertinghly hap-hazard in the making. No one can begin to understand our alleged system until he digests this seemingly obvious fact. The businesses of the Courts is not planned; it occurs, and its principles are developed at the point of application. Our law has been created by the tread of feet that did not necessarily know where they were going until they get there.

5. Judicial intrepidity, integrity and independence constitute the whole arch of judicial power of the Supreme Court and the High Courts which have to play its part in the unfolding drama of the new nation's development. The actual scenario would, however, depend upon the personnel of the Courts and the manner in which they perform their awesome constitutional roles.

6. To borrow the prefatory observations of the famous American scholar (in his famous book) "Bernard Schwartz. ((Oxford University) (1993) Press, New York) A History of the Supreme Court-

"Human History, says H.G. Wells, is in essence a history of ideas. To an American interested in constitutional history, the great theme in the country's development is the idea of law as a check upon governmental power. The institution that best embodies this idea is the United States Supreme Court. But the court itself is the beneficiary of a constitutional heritage that started centuries earlier in England."

7. If conflict is the root of the law, it is concept that causes it to grow and flourish. When all that we have known and done is buried beneath the debris of time, what may be remembered most about is our legal system. Nothing like it has been ever seen before on this planet, so far as I know. It is distinguished more than anything else by its breath-taking generosity to the individual. Luckly, though largely because of accidents of geography and history, the battles that have shaped our law have been waged in environmental that allowed decency and dignity to survive and even to prevail.

8. I have deliberately prefaced as above my impartial, though critical, appraisal and assessment of the Kerala High Court's Hartal decision as readers will realise while they read along.

9. The landmark decision rendered by the Division Bench comprising Justices P.K. Balasubramanyan and Mohammed Shafi in the Hartal case ((2000) 2 KLT - Kerala Vyapari Vyavasayi Ekopana Samithy v. State of Kerala) did not come a day too late. Piercing the veil of the facade of Hartal and seeing through the game, the Division Bench rightly held that forced Hartal is unconstitutional. Ever since the Kerala High Court decided the Bundh case ((Bharathkumar K. Palicha v. State of Kerala & Ors. (1997 (2) KLJ 1 (FB)) our unscrupulous politicians and trade union leaders have been resorting to bundhs by proxy euphemistically calling them Hartal (or hurt all?) and strikes like the one held a few weeks ago. It is unfortunate, yet true, that even a Hartal called a couple of months ago by the so called CPI (ML), a ninecompoop political outfit, was "successful", thanks to the instinct of fear created in the minds of the peace-loving, law-abiding common men by threats and intimidation by the organizers.

10. Several months ago, when the Hartal petitions came up before the Bench, headed by Justice P.K. Balasubramanyan, no effective interim order were passed, thereby paving the way for a relentless succession of Hartals or strikes in this "God's own country", which destablized the State administration, sent normal life out of rail and brought productive activities to a stand-still. This was because the Division Bench tamely accepted the undertaking given by the Advocate General of the State to the Court that effective steps for preventing force and untoward incidents would be taken by the Government. The assurances were of no avail as subsequent events proved. Anxious law-abiding and sensitized Keralites like this writer even wondered then whether the court had developed cold feet against the clenched fist of the Administration or the poor apology that goes by its name in Kerala.

11. The common man in the State has far too long been allowed to be held to ransom by these unscrupulous, self-styled leaders who, or their followers, unleashed an organized orgy of violence and vandalism to compel the people to keep indoor during the so called "popular agitation". The reports show that the Division Bench has rejected - and very rightly - the lame excuse put forward by the Election Commission for not taking action, probably for fear of the politicians (not surprising, when even the terrorizing Seshan who claimed to be a watch-dog of the Constitution degenerated into a lapdog of the politicians). The High Court rightly pointed out that the Commission has enough teeth and claws to keep the deviant politicians in place.

12. Yet another laudable aspect of the Bench decision is its holding that those who called for Hartal would be liable for the damages caused to public property, and stressed the responsibility of the State and its officials to move in that direction employing its power including those under the Prevention of Damage to Public Property Act, 1984.

13. Senior Judge P.K. Balasubramanyan is essentially a preeminent advocate of the doctrine of judicial restrain, though believing profoundly that progressive outlook can have no place in judging because to let it in produces a rule of men, not rule of laws. This writer has often been tempted to say that he is a hard-core conservative a-la Chief Justice Rehnquist of the U.S. Supreme Court who shuts and shuns all winds of progressivism. The interim order in the Hartal case by Justice Balasubramanyan on behalf of the Division Bench so dampened all hopes of judicial activism that I wrote a critical comment on it entitled "Cold Feet or Cloistered Virtue?" (2000 Madras Law Journal, Journal page 1). His adherence to the doctrine of judicial restraint created the illusion among discerning students and critics of law alike that the learned Judge had undergone a profound reactionary metamorphosis and he took almost a masochist pleasure in ruling contrary to the most powerful librarian beliefs.

14.But, refreshingly enough, the Bandh judgment ((Bharatkumar v. State of Kerala 1997 (2) KLJ 1) and the present Hartal judgment ((2000) (2) KLT 430) featured Justice P.K. Balasubramanyan, the Judge, at war with P.K. Balasubramanyan, the man - a painful conflict indeed. Quite surprisingly - shall I add happily? - his former conservative constituencies may be horrified, denouncing the Hartal opinion as a carrying of against-his-grain judicial activism to the leval of blasphemy. To the learned Judge, perhaps, it was simply a matter of what his conscience dictated to him. While doing so, he might not have been unaware of Justice Frankfurter's statement to his outraged friends "Judges move within a framework of duty very different from that in which you happily are free to move" (quoted by Alfred M. Knight in "The Life of the Law" (Published by Crown Publishers Inc. ((1980) P. 220)).

15. This writer, however, feels that the Kerala High Court could have gone a step further. The areas of monetary compensation to victims of illegal acts and the initiation of Contempt of Court proceedings by the Hon'ble Supreme Court and the High Courts suo motu invoking the provisions of the Constitution appear to have escaped the notice of the Bench.

16. As stated earlier, in a landmark judgment delivered in the Bandh case (Bharatkumar K. Palicha and Ann v. State of Kerala and Anr. 1997 (2) KLJ 1) by a Full Bench, the Kerala High Court had declared bundhs illegal and unconstitutional, as calling for bandh entails the restriction of free movement of the citizens and the carrying on of his avocation and no political party has right to call for a bundh on the plea that it is part of its fundamental right of freedom of expression. This widely hailed decision was affirmed by the Supreme Court in appeal. (Communist Party of India (M) v. Bharatkumar and Ors. AIR 1998 SC 184).

17. Moreover, strike is defined in S.2(q) of the Industrial Disputes Act as "a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment". Under S.22(1) of the Act, a strike has to be preceded by a notice of six weeks to be followed by conciliation proceedings. Moreover, the issue of wages or working conditions of workers is not involved in the present case. Lightning strikes and strikes other than for the statutorily stipulated purposes clearly amount to infringement of the Fundamental Rights to avocation and business guaranteed to the citizens under Article 19(1) of the Constitution of India.

18. Thousands of Keralites, who are non-political, or apolitical and who do not share the views of the sponsors of the strike or the hartal or are at least impartial, could not lead their normal life guaranteed under the Constitution. By having been held to ransom and forced to remain indoors, they were put to irreparable loss, injury and hardship. Tortious liability can be fastened under law on the perpetrators of hartal and strikes on the common man.

19. The Patna High Court has held in State of Bihar v. V.R.S. Kumari (AIR 1954 Pat. 513) that in the light of the provisions under O. XXXIX R. 2(3) (now R. 2A( 1)) of the CPC read with S. 176 of the Government of India Act, 1935 the State can be_ hauled up for contempt. The English doctrine, "The King can do no wrong" is not applicable to India. By its indiscreet and intentional silence, the State Government of Kerala can at least be held to have aided and abetted the commission of contempt of Court by the political and trade union leaders who virtually forced a bundh euphemistically called strike, on the people of Kerala. From earliest times, Governmental liability in contract or tort has not been derived in India. In so far as the discharge of no sovereign function is involved, action can lie against the State in appropriate cases. In the light of Art.300 of the Constitution also, it is preposterous to contend that should the Government disobey a Court order willfully, it can get away without having to face contempt proceedings. If punishment of detention in person is not possible, attachment of Government's property is feasible. No organ of Government can show disrespect to courts of justice as Government exists by the Rule of Law and if the Rule of law is flouted by the State itself, it is, indeed, a very sad state of affairs. It is of the essence of the Rule of Law that every Authority within the State, including the Executive Government, should consider itself bound by, and obey, the law. If disobedience, whether by Government or politicians or the generality of the public, could go unchecked, it would result in orders of court ceasing to have any meaning and the judicial power itself being reduced to a mockery.

20. As was observed in a different context by the Madras High Court, a High Court is not concerned with the quality or character of any legal advice upon which any party may choose to act and this includes the State, whether it is a constituent State of the Union of India or the Union Government itself. Further, it is well known, the High Court is no respecter of persons and the Rule of Law implies that the law has to be applied equally not only between citizens and citizens, but also as between the citizens and the State" (1969 Mad. L.W. (Crl.) 25).

21. The Madras High Court has held in Yejnanarayaniah, In Re (191A MLJ 155) that no limitation has been imposed on Art.215 of the Constitution of India that in cases of civil contempt, the High Court cannot take action suo motu, for, it is easy to conceive of a case when no party may care to come forward to move the court for initiating contempt of court proceedings, but, the court may consider it necessary and expedient to initiate action suo moto. The Law of Contempt is based on a sound public policy by punishing any conduct which shakes the public confidence in the administration of justice. What amounts to contempt is for the High Court or the Supreme Court to determine as a Court of Record and the definition of 'contempt' in S.2 of the Contempt of Courts Act, 1971 can at best operate as a guide for such determination. By openly calling for, and enforcing on the people of Kerala, not to say India, a bundh under the guise of a hartal or a strike, the Trade Unions and political leaders of the Left have undoubtedly committed contempt and it is open to the Hon'ble High Court as a court of record to initiate contempt action suo moto against the persons involved. With respect, one hopes that it will not develop cold feet or consider keeping silence a cloistered virtue.

22. As far as the people affected by the strike are concerned, exploration can be made to see whether monetary compensation can be claimed and recovered through law suits. We have examples as in the case of the trials and tribulations undergone by the minority Sikh Community and a few others in the wake of the assassination of the Indira Gandhi in October, 1984. In a public interest litigation (R. Gandhi v. Union of India AIR 1989 Mad. 205) the Madras High Court held that the victims were entitled to reasonable compensation and slapped on the Government an order fixing fiscal liability. There are several other instances, a couple of which may be stated.

23. The Supreme Court has innovated the right of citizens to receive compensation for damages caused due to administrative cause by laying down the law in Rudul Shah's case (AIR 1983 SC 1086). In that case, it was dealing with an illegal detention, while in another case for the harassment of a pensioner by the Authorities it awarded exemplary costs as compensation.(Devaki Nandan Prasad v. State of Bihar) (AIR 1983 SC 1134).

24. The generality of the public in the State deserves protection of their rights and interests against the politician's naked invasion of it and intrusion into it. They look up to the helping hand of the judiciary in society against abuse and misuse of power and the law of the jungle and muscle power and money power and mafia power with the overt or covert support of the political big-wigs of the State.

25. Shall we hope that the powers-that-be and the politicians will help restore the hailed status of the State of Kerala as "God's Own Country" or at least prevent its slide into a nightmarish "Devil's Own Country"?.