Rape and Punishment

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

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

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

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

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

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

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

The Need for Accountability in the Administration of Justice

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

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

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

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

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

1. That the defendant was acting judicially

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1982 KLT 53 Vis-a-Vis AIR 1961 SC 1067

(By K.G. Michael, Advocate, Kodungallur)

The Ruling in Vasu v. Kallianikutty Amma reported in 1982 KLT 53 appears to be in conflict with the Ruling reported in Ganga Dutt v. Karthik Chandra Das in AIR 1961 SC 1067.

The former Ruling is under Ss.2(6)(ii) and 11(5) of Kerala Buildings (Lease and Rent Control) Act, 1965. The latter is a Ruling under S.116 of T.P. Act.

The gist of the former Ruling is as follows:-

"Statutory tenancy is a concept evolved by Courts to define the relation that subsists after termination of the contractual tenancy........................

A petition for eviction is normally filed after termination of the contractual tenancy, and the person continuing in possession thereafter during the pendency of the eviction proceedings is a statutory tenant. But when the petition is dismissed, S.11(15) provides that he will revert back to the old position. The tenancy shall be deemed to continue on the old terms and conditions. The contractual tenancy is thus resurrected. The statutory tenancy stands converted into the old contractual tenancy, when the eviction petition is dismissed, by virtue of S.11(15)"

The latter Ruling has held that a tenant whose contractual tenancy has been determined by efflux of time has not acquired the status of a tenant holding over within the meaning of S.116 of T.R Act.

The non-obstante clause in S.11(1) of the Rent Control Act contemplates only one kind of tenancy i.e. the statutory tenancy under Rent Control Act.

Hence, wherever the Rent Control Act applies, we have only one kind of tenancy i.e. statutory tenancy.

S.11(9) of the Rent Control Act is a fetter on the landlord. It is immaterial whether the tenancy is for a specified period or not. Once a tenant, he continues to be a tenant subject to the provisions of the Rent Control Act.

This position is amply clear in S.11(15) of the Act.

The former Ruling has pointed to two kinds of tenancy i.e. contractual tenancy on one hand and statutory tenancy on the other hand. This position does not appear to be sound vis-a-vis latter Ruling.

The Rent Control Act does not contemplate a holding over tenant. Under S. 11(15) of the Rent Control Act, the tenancy shall continue subject to the provisions of the Act. Any other interpretation of law may be in conflict with the SC Ruling.

Para 8 of the Ruling in Issac Ninan v. State of Kerala reported in 1995 (2) KLT 848 appears to be a correct interpretation of law. 

A Critical View of Sections 11(3), 11(8) and 11(10) of the

Kerala Buildings (Lease and Rent Control) Act

(By P. Somarajan, Advocate, Kollam)

The object of Kerala Buildings (Lease and Rent Control) Act is to regulate the leasing of the buildings, prevention of unreasonable eviction of tenants and for the control of rents. The paramount aim and primary purpose of the statute is to prevent unreasonable eviction of tenants. As it is an ameliorative legislation intended for the benefit of tenants and to prevent unreasonable eviction, it is advisable to look into the classification of tenants under Ss.11(3) and 11(8) of the Act and its constitutionality. As far as control of rent is concerned, the decision of our Hon'ble High Court drawn by the Hon'ble Justice K.S. Radhakrishnan in Issac Ninan v. State of Kerala, reported in 1995 (2) KLT 848, canvases a fresh look into the classification of tenants under Ss.11(3) and 11 (8) and also whether it is violative of Arts. 14 and 19(l)(g) of the Constitution.

S.11(3) of the Building (Lease and Rent Control) Act provides that a 'Landlord' may apply to the Rent Control Court for an order directing the tenant to put the Landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.

To the sub-s. (3) there is 4 provisos among them the first proviso provides that "the Rent Control Court shall not give any such direction if the Landlord has any such building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so".

The second proviso states that "the Rent Control Court shall not give any direction to a tenant to put the land lord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such buildings and there is no other suitable building available in the locality for such persons to carry on such trade or business".

The third proviso provides that "no land lord whose rights to recover possession arises under an instrument of transfer intervivos shall be entitled to apply to be put in possession until the expiry of one year from the date of instrument."

The fourth proviso provided that "if a land lord after obtaining an order to put in possession transfers his right in respect of the building to another person the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him".

As far as S.11(8) is concerned what is embodied in sub-section is that a landlord who is occupying only a part of a building may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of remaining part of the building to put the landlord in possession there of if he requires additional accommodation for his personal use.

It is pertinent to note that there is a classification of tenants coming under the purview of sub-ss.3 and 8 of S.11 of the Act as the requirements and benefits given to tenants under sub-ss.3 and 8 are different. A mere perusal of Ss.11(3), 11(8) and 11(10) shows that the classification is discriminatory. The treatment given to the tenants under sub-ss. 3 and 8 are different and discriminatory. Former one, deals with the requirement of (bona fide need of land lord or his dependant) land lord who is not occupying any portion of building and in the later deals with requirement of land lord (bona fide need for additional accommodation) who is occupying a portion of building. But as far as the status of tenants is concerned there is no differences at all, but sub-ss. (3) and (8) provides different treatment to the tenants though there is no difference in the status of tenants. In the former one wide protective measures are provided to the tenants. Among them the extent of 2nd proviso, is so wide, by the inclusion of the word "mainly" and it provides a protection to the tenants having other source of income, if he is depending for his livelihood mainly on the income derived from any trade or business carried on in the tenanted premises, even if the land lord establishes his bona fide need. In other words, the land lord who have established his bona fide need with its rigid nature also come across the benefits provided to the tenants under its provisos. The 3rd proviso to sub-s.3, gave an absolute barring to the land lord to apply for eviction of tenants before the expiry of one year, if the right of land lord arises under an instrument of transfer inter vivos; from the date of such instrument. But in the later case, the only protection given to the tenant is the comparative hardship. It is curiously enough to note that the term 'hardship' is not defined anywhere in the Act. Any way it is clear that the tenants come under the purview of sub-ss.(3) and (8) are treated in different manner in the Act, even though there is no change in the status of tenants. The main basis for such classification is the position of land lord's occupation - non occupation of part of building. Moreover the bona fide need under sub-s.3 is rigid while under sub-s. 8 is not rigid as in the case of sub-s.3. Which also gives a special treatment to the land lord who comes under the purview of sub-s. 8. It is pertinent to note that whether such classification and different treatment of tenants under sub-ss.3 and 8 on the basis of occupation or non occupation of portion of building by the land lord amounts to a reasonable classification and whether there is any intelligible differential having a rational relation to the object sought to be achieved under the Act. As stated earlier the main differential of classification in between Ss.11(3) and 11(8) is on the basis of position of land lord as he occupying any portion of building or not. We cannot find any element of intelligible differential having a rational relation to the object sought to be achieved under the Act as the object of the act is to prevent unreasonable eviction of tenants. More over the classification is unreasonable as it is on the basis of position of land lord. Since the statute intended for the benefit of tenants, it will be unreasonable to classify tenants in two division by giving much protection to one class and denying the same to other class. More over the classification of land lords as persons conducting business in a part of the building and giving a luxurious treatment to them and denying such treatment to the land lords, who is not occupying any part of building is virtually against object of Act and it is against the welfare of progressive society and it lacks in element of intelligence based on the welfare of progressive society. Moreover in an ameleorative legislation intended for the benefit of tenants, it is not advisable to classify the tenants on the basis of status of land lord with respect to his occupation or non occupation of part of building. The legislature has not considered the status of tenants for making such a classification. The result is to the effect that it is open to the tenant to exhaust all the benefit provided under S.11(3) if the land lord is not in occupation of any part of the building. On the other hand if the land lord is conducting a business in any part of building, the tenant has to satisfy with the benefit of comparative hardship provided in S. 11(10) of the Act. There is clear discrimination in between Ss.11(3) and 11(8), S.11(3) is actually restricting the right of a land lord to carryout business to a certain extent in the building owned by him, while S.11(8) carried a special treatment to the land lord. Likewise while S.11(3) carries much protective measures to the business of tenant, by giving special treatment, no such treatment has been afforded to the tenant under S. 11(8) but treated entirely a different manner, that too on the basis of occupation or non occupation of a part of the building by the land lord, even though there is no difference in the status of tenants.

The main difference is with respect to the position or status of land lord. Such a classification is not advisable in a legislation intended for the benefit of tenants, when there is no difference in the status of tenants. The decision drawn by Hon'ble Justice, K.S. Radhakrishnan in Issac Ninan v. State of Kerala reported in 1995 (2) KLT 848 canvases a fresh look into the matter in which it is held that "Legislation while arbitrarily invades the right cannot be said to contain the quality of reasonableness unless it strikes a proper balance between the freedom guaranteed in Art.19(1)(g) and the social control permitted under CI.(6) of Art.19, it must be held to be warranting in that qualities" I am of the opinion that the disparity between 11(3), 11(8)and 11(10) of the Act makes it as violative of Art.14 of the Constitution and also lacks in reasonableness and also lacks in proper balance in between freedom guaranteed in Art.19(1)(g) and the social control permitted under CI.(6) of the Art.19 of the Constitution and the Act needs suitable amendment.