Law Needs Change

(By M. Lalitha Nair, Advocate, Ernakulam)

One day a widow and a widower came to me for advice to live together, both are Central Government Employees. The judicial and legislature hurdles have made it difficult for them to live together. The widower was receiving pension from his former wife and he wanted to retain the pension and marry again. The poor widow only had her aged mother and wanted to settle down in life with the widower. We are still slaves of British Rules. We are celebrating the millennium year 2000. It is time we bring modifications in law in tune with the modern needs and requirements of the society. I really felt sad because I could not help the widow.

R.54 of the Family Pension 1964 (Swamy's Complete Manual on Establishment and Administration for Central Government Officers) is quoted below:

R.54(6).The period for which family pension is payable shall be as follows:-

i) in the case of a widow or widower upto the date of death or re-marriage, whichever is earlier.

ii) in the case of a son, until he attain the age of (twenty five) years and

iii) in the case of an unmarried daughter, until she attains the age of (twenty five) years or until she gets married whichever is earlier.

The whole role allows pension till the widow or widower is unmarried.

Now the whole concept of living together until death has changed. If a man and woman plan to marry during middle age, it is only for companionship. Another aspect is that now the cause of death are so sudden that within a short span of time the surviving spouse has to shoulder a lot of unexpected responsibilities. People remarry not because of lack of sincerity or affection, but just to preserve the family. Things are more difficult when there are minor children and the difficulties to maintain a maid servant. These days there is no assurance of financial stability and the abolition of joint family and the replacement of nuclear family have made things worse.

The Central Government Rule should not cut away the pension immediately after the widow or widower remarries. It is high time that the law is made or the above Rule is modified to the effect, that in genuine cases widow or widower as the case may be, is enabled to remarry without loosing the pensionary benefits of his or her former spouse. 

Castes - Reservation and the Courts

(By Dr. Chandrashekharan Pillai, Professor of Law, CUSAT, Kochi)

The Indian Constitution envisages an egalitarian society wherein there will be no role for castes. However, a perusal of constitutional provisions makes us aware that the same Constitution at the time of its enactment made special provisions for reservation in the elected bodies and bureaucracy for certain castes and communities. This was in fact the recognition of the fact by the Constitution that our past practices were discriminatory on the basis of castes and creeds and that it was necessary to straighten things by lifting those who were left out by our history. After uplifting them to the level attained by the other segments of the society the Constitution was to treat everyone equally. That was the reason why it was very particular to make reservation available only for a limited period. It is altogether a different thing that our Parliament extends this period as a matter of course probably because we could not achieve our targets of leveling the marginalised castes with others in the society within the time frame as originally envisaged.

It is interesting and rewarding if one looks into the reason for our not achieving the target. It is strongly felt that at times the constitutional aim is forgotten in the cause of heated debates on reservation. It has become a fashion for several people particularly those in politics to argue that it is to compensate for the past discrimination that reservation has been imposed. It is also quite often argued that reservation should be proportionate to the numerical strength in the population of particular castes. While these arguments may have some relevance in examining reservation in legislative bodies, they may not hold good while examining the question of reservation in the bureaucracy where there is need for efficiency and therefore merit has to have an adequate role. Our Constitution has therefore stressed on efficiency in the context of reservation to bureaucracy.

The above mentioned arguments are countered by the rival groups by saying that they are not responsible for any past discrimination. Even if somebody practiced it they do not have any connection with the present day society. Those ills were generated by the times for which the whole community should be responsible. The argument for proportional representation in bureaucracy cannot hold water as caste should have no relevance in administration. It should rather emphasise on efficiency and merit.

These arguments and counter arguments have taken us nowhere. Passion is so high that none can discuss the issues independently. The Supreme Court's attempt to solve the issue is reflected in Indra Sawhney's1 case which happily happens to be the correct interpretation of the constitutional goal.

Be that as it may, it is interesting to see that some people have been trying to get the benefit accorded by law to the members of the scheduled castes and scheduled tribes by way of changing their castes through conversation, reconversion, adoption, marriage etc. And if one looks into the case law produced by the courts in this respect one may find it difficult to perceive what the courts intended to achieve.

The question whether a person could resort to change of caste by way of conversion and if so what impact it may have on his status has been examined by various courts at several times. As late as in 1984, the Supreme Court reached a conclusion on this question in Kailas Sankar v. Maya Dei2, wherein the court expressed thus:-

"Where a person belonging to Scheduled Caste is converted to Christianity or Islam the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where members belonging to a particular caste having been converted to Christainity or even to Islam retain their caste or family laws and despite the new order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action. Where the religion however does not at all accept or believe in the caste system the loss of the caste would be final and complete."3

As regards the impact of reconversion to one's own caste after his earlier conversion, the Supreme Court in the very same case commented:-

"The reconvert must exhibit a clear and genuine intention to go back to his old fold and opt the customs and practices of the said fold without any protest from members of his erstwhile caste, in order to judge this factor, it is not necessary that there should be a direct or conclusive period of the expression of the view of the community of the erstwhile caste and it wont be sufficient compliance of this condition if the exception or protest is lodged by the community members in which case the caste would revive on the reconversion of the person to his old religion."4

It is interesting to note that though in the earlier cases acceptance by the members of the erstwhile caste was considered as a condition precedent to a valid reconversion, in the present case it was held that non objection by the members of the caste is sufficient for a valid reconversion.

In the course of discussion, however, the court pointed out that the consent of the community may be essential in the case of conversion to a caste which is governed by a code of conduct or rule of law. The court's discussions are worth quoting:-

"..........If the fact of the acceptance of the members of the community is made condition precedent to the revival of the caste, it would lead to grave consequences and unnecessary exploitation sometimes motivated by political considerations. Of course, if apart from the oral views of the community there is any recognized documentary proof of a custom or code of conduct or rule of law binding on a particular caste, it may be necessary to insist on the consent of the members of the community. Otherwise in normal circumstances the caste would survive by applying the principle of doctrine of eclipse. We might pause here to add a rider to what we have said, where it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here."5

By way of adoption also a person could become a member of a caste. The decisions which required the acceptance of the community before a person could be admitted as a member of the caste were not applicable in the case of the adoption as signified in S.12 of the Hindu Adoption and Maintenance Act6 The Delhi High Court reasoned that just as it is not open to a caste to refuse to recognise a new-born in the family of one of its members as belonging to the caste, it is not open to the caste to sit in judgment over the statutory status enjoyed by the adoptee.7

This view was dissented from by the A.P. High Court in A.S. Sailaja v. Principal, Kurnool Medical College8 where in the court reasoned:-

"..................an adoption under the Act is personal. The purpose of S.12 is that he or she becomes completely a member of the adoptive family "for all purposes" be it for religious or secular purpose but "for the purpose of the Constitution" under Arts.14, 15(4) and 16(4) the adopted child must satisfy not only that he or she belongs to the particular homogeneous group or class or tribe but also must become a member of the homogeneous group or class or tribe, also had suffered or subjected to all the disadvantage or handicaps which the members of the homogeneous group, class or tribe, are subjected to or have undergone or is undergoing in that context recognition of such a person by the caste or community elders to which the adoptee has already been assimilated or seeks an entry is a relevant factor which has to be established as a fact. The purpose of adoption under S. 12 is personal to the adoptee and is distinct and apart from the constitutional scheme under Arts.14, 15(4), 16(4)."9

Thus there is a shift of emphasis when the adopted seeks admission on the basis of his or her becoming a member of the scheduled caste by way of adoption. In order to attain the status of a member of the group the person should have suffered the disadvantages to which his adopter had been subjected. The Court ultimately held that adoption will have no impact on the constitutional provisions conferring reservation benefits to the members of the caste.

On the question whether a member of the upper caste could become a member of the scheduled caste or scheduled tribe by marrying a member of the latter groups the Courts resorted to a similar reasoning.

While the A.P. High Court in H.D. Neelima v. Dean, PC Studies, A.P. Agricultural University10, declined to extend the benefits of reservation to an upper caste woman on the basis of her entry into the scheduled caste by way of marriage with a man belonging to the scheduled caste, by treating marriage as a separate issue for the purpose of interpretation under Arts. 15(4) and 16(4) the Supreme Court in Valsamma Paul v. CUSAT11 examined the issues in the constitutional perspectives and ruled that a person getting into a family of S.C. or O.B.C. by marriage may not be entitled to reservation. The Court's reasoning is illustrative:-

".........education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institution or in case of other economic benefit under Arts. 15(4) and 46, or in appointment to an office or a post under the State under Art.16(4). Therefore when a member is transplanted into the Dalits, tribes and OBCs, he/she must of necessity also undergo some handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidates to avail the facility of reservation. A candidate who had the advantageous start in life being bom in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Art.15(4) or 16(4) as the case may be. Acquisition of the status of scheduled caste etc. by voluntary mobility into these categories would play fraud on the Constitution and would frustrate the benign constitutional policy under Arts. 15(4) and 16(4) of the Constitution."12

So recognition or acceptance by a community should not have any impact. Unlike in the case of change of caste by way of conversion, reconversion, adoption or marriage the determination of caste of the offspring of inter-caste marriages did not pose much problems for the courts probably because of the firm stand the executive have taken in extending the benefits of reservation to the children of inter-caste marriage if one of the parents belonged to u scheduled caste or scheduled tribe. However, the Kerala High Court could not be consistent in its ratiocination and as such there have been some conflicting decisions.

In Sapna Jacob v. State of Kerala,13 a girl born of an inter-caste marriage between an upper caste Syrian Christian and a woman belonging to a Scheduled Caste was denied the benefits of reservation on the ground that she was a born Christian and that her name itself suggested that she was a Christian rather than a member of the scheduled caste. It is not known how the Court concluded that there are born Christians. As a matter of fact, there are no born Christians. It cannot be said that merely because a person has received baptism, he can be deemed to have become a Christian unless there is evidence to show that he professed the Christian religion.14 Consensus of judicial opinion is that one who professes the Christian faith, is a Christian and that neither baptism nor excommunication, is determinative. What is conclusive in eparchial law is not conclusive in temporal or civil law. Thus, to say that one is a Christian, it must be established that he professes the Christian faith.15 Thus a person becomes a Christian only if he or she professes the Christian religion. In the case of Sapna, she could perhaps have not excluded her father's name from her name. And there is nothing on record to show that she professed the Christian religion. In fact she did not have a caste as it is understood by others. To bear one's father's name and to be brought up in an arguably comfortable way should not have deprived her of the benefits available to her mother. The constitutional goal of the establishment of an egalitarian society could have been better served had the Court resorted to progressive interpretation.

It is refreshing that the Court in some subsequent decisions such as State of Kerala v. Thushara,16 Commissioner & Secretary v. Ramachandran etc.,17 has reserved this trend and tried to be in tune with Governments benign approach of propagating the programme of inter-caste marriages with members of scheduled castes and scheduled tribes. In the latter decision the Court did take notice of the facts that the benefit was offered by the Government to lure the members of other communities to contract marriages with members of Scheduled Castes and Scheduled tribes communities. Still, the High Court did not take a consistent stand probably because of its indebtedness in ratiocination to the decisions rendered by other High Courts and the Supreme Court in cases concerning conversion, reconversion or marriage. Indeed as extracted above, the Supreme Court reasoned that a person should have suffered disadvantages earlier in life to make him or her entitled to the benefits of reservation and that marriage into a family of S.C. and S.T. alone could not make him entitled. This reasoning in fact does not apply to a person who is an offspring of an inter-caste marriage. And as such the procedural formalities laid down by the State Government to determine the entitlement of an offspring of an inter-caste marriage need not be there. Whether one is brought up as a member of the community is immaterial. Naturally, such families must not have been treated well either by the scheduled caste or scheduled tribe communities or by the upper caste communities as this family does not belong to either of them.

In this background a recent decision of the High Court of Kerala rendered in O.P. No.22176 of 1999 should attract special attention of the legal fraternity. The Petitioner in this case was the offspring of an inter-caste marriage between a Nair and a woman belonging to Perumannan community, a scheduled caste. She was seeking admission to a professional course through common entrance examination conducted by the Government of Kerala. She was requested to produce two certificates. One indicating that she belonged to a scheduled caste and the other signifying that she was the offspring of an inter-caste marriage either of the parents belonging to a scheduled caste or scheduled tribe. Here she submitted the certificates first mentioned. Under the scheme her claim was scrutinised by the screening committee which referred her case for inquiry to KIRTADS Calicut. The Vigilance Officer of KIRTADS conducted an inquiry and concluded that she did not deserve reservation as she had no nexus with the scheduled caste in as much as she was brought up not as a scheduled caste. The Screening Committee conducted further inquiry in which the petitioner and her father were given opportunity of being heard and agreed with the Vigilance Officer.

Instead of following the ratiocination of earlier decisions Justice K.S. Radhakrishnan rightly fell back on the provisions of the Constitution and examined the issue in constitutional perspective. So far, our courts including the Supreme Court have been dealing with these issues not in the light of the constitutional goal of the establishment of the egalitarian society in the light of the real basis for reservation. This is perhaps the reason for the obscurity in the reasoning. For example, it is not understood that the fact of being not a disadvantaged in the earlier stages of life could deny the benefits of reservation to an upper caste woman who married a man belonging to scheduled caste or scheduled tribe. Indeed, it could be argued to counter the arguments that after all she is at least at this stage embraces all the evils and disabilities and lives with the disadvantaged man and why should the reservation be denied to her. Sufferings of disabilities and disadvantages could not perhaps be a ground in as much as there may be many at least among the OBCs who must not have suffered any disabilities or disadvantages. In any case this arguments cannot be extended to the offspring of inter cast marriages who do not actually have any 'caste' in the constitutional sense. By wrongly extending this test evolved in the context of conversion or reconversion to the case of offspring of inter caste marriages, we are in fact, indirectly though, encouraging perpetration of caste even by a group of children who do not have any caste.

Justice Radhakrishnan's ruling in the light of the above deserves approbation. He boldly declared:-

"We are of the view that the reasoning of KIRTADS as well as the Screening Committee to deny the benefit available to children of inter-caste married couple cannot be sustained. When a claim is made on the basis that the candidate is an offspring of an inter-caste married couple the question whether the offspring was brought up as a scheduled caste or not is immaterial. The only question to be considered is whether the parents had contracted an inter caste marriage and the applicant was born out of that marriage."18

And to affirm this ruling on firmer ground the Judge relied on the fundamental law of the land and essayed thus:-

".......The marriage between the appellant's parent has led to a fruitful solid base for an egalitarian social order under the Constitution and has brought harmony and integration in social fabric. Such a marriage would liberate the society and bring equality to members of scheduled castes, scheduled tribes on a par with general public. It will also do away with the disabilities, restrictions and prohibitions on the ground of caste or religion and remove untouchability".19

Commanding to his aid the philosophy underlying Articles such as 15(1), 15(4), 17 etc., he further reasons:

"...........The question whether that offspring was brought up as a member of a scheduled caste or not is immaterial. On the birth of an offspring of an inter caste married couple, the child need not be subjected to the same disabilities, indignities, restrictions, prohibitions or sufferings once suffered by a member of a Scheduled caste/tribe".20

The Court has thus contributed to the philosophical thoughts underlying justification for providing for reservation in the Constitution in the context of present day life. In fact it has provided an opportunity for the executive to review its policies and procedures in proper perspectives. Test evolved in one context does hold good for another context. The State Government should review and revise its policies and practices. This decision may hopefully influence other High Courts and State Governments, paving way for further thinking on progressive lines. The reasoning should be welcomed wholeheartedly.

__________________________________________________________________

1. (2000) 1 SCC 168. The Supreme Court categorically held in this case that the Indian Constitution is wedded to the concept of equality which is the basic feature of the Constitution. Though Indian society is caste-ridden, yet it is the constitutional mandate not to discriminate on the basis of caste alone and therefore caste alone cannot be the basis of reservation.

2. AIR 1984 SC 600

3. Ibid at 607

4. Ibid at 608

5. Id.

6. See Khazan Singh v. Union of India, AIR 1980 Del. 60

7. Ibid at 67

8. AIR 1986 AP 209

9. Ibid at 224

10. AIR 1993 AP 229

11. AIR 1996 SC1011

12. Ibid at 1022

13. 1992 2 KLT 657

14. Sujatha v. Jose Augustine, 1994 (2) K.L.T. 4

15. Leelamma v. Dilip Kumar, A.I.R. 1993 Ker. 57 = 1992 (1) K.L.T. 651. Also see Maharam v. Emperor, A.I.R. 1918 All. 16S; K.J.B. David v. NeelamaniDevi, A.I.R. 1953, Orissa 10; Pakkiam Solomon v. Chelliah Pillai, A.I.R. 1924, Madras 18 (FB). Further see S.3 of the Indian Christian Marriage Act, 1872 and S.3 of the Cochin Christian Civil Marriage Act, 1920 and S.2(d) of the Indian Succession Act, 1925

16.1998(1)K.L.T.717

17.1998(1)K.L.T. Case No. 68 at 70

18. Para 14 of judgment in O.P. No. 22176 of 1999

19. Para. 17

20. Para. 18

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