"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"?.

Master of None

(By R.P. Remesan, Advocate, Kannur)

When the term globalization becomes meaningful the term specialization also must be true and effective. Hierarchy of the global village prefers more experience and skill from the individual. When a person achieves knowledge in many subjects at a time he will be a master of none. Specialisation is not a new thing. When a matter is divided into two or more, the person chooses one and ignores the other for the sake of completion or perfection. Our experience teaches us that every matter has its own divisions and entity. The we find that every piece has its own existence and life. Maybe at this juncture off shots have grown up from the main menu.

The geography which tells us about the earth science has been divided into Geology. Topography, Physical Geography, Economic Geography, Political Geography, Geopolitics, Physiography, Cartography etcBiology is divided into Botany, Zoology, Physiology, Genetics, Ecology, Microbiology, Molecular Biology, Embryology. Biochemistry, Marine Biology, Biotechnology, Biostatistics, Bioengineering, Biomathematics etc. It is also our experience that people are mastering particular subjects. So in effect a master in Biology or Geography is not available but one may be a master in any one of its above noted branches.

The dictionary meaning of Engineering is planning, designing, construction, or management of machinery, roads, bridges, buildings, etc. An Engineer is a person skilled or occupied in some branch of engineering. A glance at the branches may show mining, civil, metallurgical, geological, atomic, nuclear, architectural, chemical, construction, stationary, military, naval, flight, pneumatic, hydraulic, marine, electronic, communications, electrical, mechanical, acoustic, design, manufacturing, industrial etc. included in it. So the Engineers are born out after specialising these individual subjects. Take the case of doctors. As we know all teeth are of same type even if we name it as incisor, canine, cuspid, bicuspid, premolar, molar etc. The only difference is in its shape. But the dentists are of various kinds. They are dental surgeon, oral surgeon, maxillofacial surgeon, extractionist, dental diagnostician, orthodontist, prosthodontist, periodontist, exodontist, endodontist, pedodontist, radiodontist, general dentist, cosmetic dentist, pediatric dentist etc. Each and every human organ has such sub divisions. Why should we confine to organs! Take the case of the mind. Psychologists and psychiatrists are the two chief types among the 'mind doctors'.

Now turn to lawyers. The branches of law are infinitive. It can be divided into many groups ie., civil, criminal,.consumer, labour, insurance tax etc. But there is no such classification or specialisation among the lawyers. From the law college a student can opt a subject as his choice but on completion he may not be awarded any special degree to that effect. So a student who chooses Labour, Constitution or Tax as his special subject comes forward without any bearing on his special studies. So no one will be benefitted.

Many of the lawyers confine to the special category of law and courts. But the litigant public are unaware of the fact. When a lawyer confines to the criminal courts he may not be much interested to be in the civil court or cannot be a scholar in civil law. Often he may send his clients when they approach him with a civil matter, to another for appearing for him in the civil courts. One who reserves his practice in the labour law may not be qualified to be a criminal lawyer. So usually he also recommends some other lawyer to deal with such cases if his clients ask for it. On the contrary if a lawyer who has never appeared before the labour court comes with a case without considering his skill in the labour law, his client may suffer even if he is a competent criminal or civil lawyer. It is not possible for a client [layman] to know the failure of his case is due to the incapability of his lawyer. In such a situation can we find fault with the client for preferring a lawyer who has no experience in a particular branch of law?

Before giving an answer to the above question, it is better to see the mode of engaging a lawyer by a client. When a person receives a summons under Abkari Act, Explosive Substance Act or under any statute he has every right to know who the lawyers practicing on the said branches of law are. When a person receives a summons from his wife in a divorce proceedings he should seek for a good lawyer to defend his case. How can these persons choose a good lawyer? In India no answer to the point is available to the said question. His 'time' may lead him to a lawyer. Whether he is good or bad is depends on his luck'.

No man can be condemned unheard, is a privilege enshrined in the Constitution. A lawyer may be one as the client chooses. Does this phrase contain such a right to have a competent lawyer for his case? When the answer is in the positive, it would not be wrong to say that there is paucity of such right.

How to solve the impasse? The only remedy available is classification or specialisation. Specialisation can be started from the college itself. But the best way is to start from one's own practice. An undernote may be added in the name-plate of the lawyer about his specialisation. When one feels that he is supposed to be a specialised person in a particular subject he will make his best effort to achieve the result. It will enrich his profession, ultimately the people will also be benefitted. The Advocates Act also to be amended in order to cart away the barriers.

Who is Protected U/s 139 of the N.I. Act ?

(By John S. Ralph, Advocate, Kochi)

The criminal courts are flooded with prosecutions under Section 138 of the N.I. Act And the courts are disposing them with the help of the presumption envisaged under Section 139 of the N.I. Act. Thanks to the presumption. But the interesting question to be looked into is that "who can avail the protection of the presumption?".

Section 139 reads "Presumption in favour of HOLDER:- It shall be presumed, unless the contrary is proved that the HOLDER of a cheque received the cheque, OF THE NATURE REFERRED TO IN SECTION 138, for the discharge in whole or in part of any debt or other liability." In order to have a thorough understanding of the section, emphasis should be given on two aspects viz. HOLDER and OF THE NATURE REFERRED TO IN SECTION 133. Holder is defined under Section 8 of the N.I. Act as "Holder of a promissory note, bill of exchange or cheque means any person entitled in his name for the possession thereof and to receive or recover the amount due there on from the PARTIES THERETO". The plural in the last two words "Parties Thereto" gives a clear indication that the Holder is a person who stands in between the Payee and the Drawer. Payee is defined under section 7 as "the person NAMED IN THE INSTRUMENT to whom or to whose order the money is by the instrument directed to be paid, is called the "Payee". In the greatest majority of the cases the cheques are Payee Cheques and not Holder Cheques.

Cheque being a negotiable instrument, it can be negotiated through indorsement as defined in Section 15 of the Act. Bereft of details the section reads......"or on a slip of paper annexed thereto...." So a cheque also can be negotiated on a slip of paper annexed thereto, without the name of the holder being on the instrument.

The basic ingredient of Section 138 of the N.I. Act is that the cheque must be issued for the discharge of a "legally enforceable debt or other liability". A cheque given as a gift, or towards a contribution etc. when bounced would not constitute liability for prosecution u/s 138 of the N.I. Act for the sole reason that it lacks the nature of being issued towards a "legally enforceable debt or other liability". This is the NATURE of the cheque in order to attract S.138. So when the HOLDER (not the payee) as mentioned above, sues a drawer, there will be no legally enforceable debt or other liability in between the Complainant and the Accused. Let us read it with an illustration. 'A' bought goods from 'B' and issued a cheque to him. 'B' for discharging his liability towards 'C negotiated the said cheque to 'C. The cheque when bounced, 'C as the Holder of the cheque, prosecutes 'A' u/s. 138 of the Act. In such a situation there will be no legally enforceable debt or other liability in between 'C and 'A'. Hence for the absence of such a liability, the case would fall out of the scope of the prosecution under section 138 of the Act. In such cases without the help of the presumption u/S.139 of the Act, the Complainant would not be able to prosecute the Accused.

There lies the importance of the words' 'OF THE NATURE REFERRED TO IN SECTION 138" occurring in Section 139. Even without those words, the presumption would stand with a complete meaning and sense. Pardon me for reproducing the section, without the said set of words, lest the reader should go back. "It shall be presumed, unless the contrary is proved that the HOLDER of a cheque received the cheque, (..............) for the discharge in whole or in part of any debt or other liability." In such a situation why those set of words viz. of the nature referred to in S.138 are inserted in Section 139? It is only to protect the HOLDER while prosecuting the Drawer where, there will be no legally enforceable debt or liability in between them. The liability in such a case would be between (1) the drawer (accused) and the PAYEE (2) the payee and the holder (complainant) and not between the complainant and the accused in the trial.

The PAYEE is specifically omitted from the presumption under S.139 for the sole reason that he is already protected under section 118 of the act and the proviso to section 118(g) is against the Holder and the burden shifts when the accused takes up any of the pleas made in the said proviso. So in view of the above mentioned two handicaps of the HOLDER, he has to be protected u/s.139. Had the intention of the Legislature was otherwise, it would have included the word Payee also in S.139. This intention further gets clarified by the fact that the 'Holder' and the 'Payee' are treated and made mention in section 138 (b) and (c) separately.

The above made observations are further strengthened by the fact that there is another presumption contained in section 118 of the N.I. Act which protects the complainant in a prosecution u/s.138. The seven limbs attached to section 118 are more than enough for a complainant to succeed in a prosecution. Section 118 is included in chapter XIII of the Act which deals which "SPECIAL RULES OF EVIDENCE". When there is such a provision, the legislature will never incorporate another presumption. The answer to the question, "then why the payee is not protected ?" is simple. The payee's claim is supported by the cheque itself which is a primary best evidence guarded by Section 118 of the Act. Hence the additional protection u/s.139 is not at all warranted.

It will also put the accused with a double burden of rebutting both these presumptions. On a reading of the rules of presumptions contained in our law, it can be seen that those legal fictions are created in order to fill up the vacuum of direct evidence. It is also worth noting that a specific bar is incorporated u/s.140 of the Act which precludes the accused from taking up a defense that he had no reason to believe that the cheque would be dishonored. Mens rea being a fundamental element of criminal jurisprudence, the state of mind of the accused assumes much importance. What makes an offence u/s.138 of the Act is not the factum of dishonour, but the positive act coupled with the mens rea of not making the payment of the amount within the statutory period contemplated in the Act. That being the only bar created by law against the possible defenses which can be taken by the accused, all other defenses are left open. So it will be an absurd position of the rule of evidence to say that the burden lies on the accused to rebut a presumption which the legislature never intended.

Though the courts in India including Apex court have repeatedly pronounced that in all prosecutions u/s.138, the presumption u/s.139 has to be drawn, this author could not find one which has considered the aspect mentioned above. To conclude, a complainant in a prosecution u/s.138 of the Act wherein the cheque is a payee cheque is well protected by direct documentary evidence guarded by the presumption u/s.118 of the Act and it is the HOLDER defined u/s.8 of the Act is the person who is protected u/s 139 of the Act.

A Skewed Educational Policy

(By P. Chandrasekhar, Advocate, Ernakulam)

Goerge Orwell held a firm opinion that 'political writing is bad writing' mostly because 'political speech and writing are the defense of the indefensible' and that 'the inflated style is itself a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outlines and covering up all the details. The great enemy of clear language is insincerity'1. In contrast, judicial language has to be crisp, clear and transparent. However, of late, the people have started feeling that the difference in language is not there to see.

Educational Institutions are not business houses. They do not generate wealth. They cannot survive without public fund or private aid2. State is under obligation to establish educational institutions to enable the citizen to enjoy the right to education. The State may discharge its obligation through State owned or State recognized educational institution3. Advancement of education is a charity. Educational activity of the private educational institutions is supplemental to the main efforts by the State and that what applies to the main activity, including Article 14 of the Constitution of India, applies equally to the supplemental activity as well4. Higher education is an obligation of the State5. Education is national wealth essential for the Nation's progress and prosperity6. Right to establish and administer a recognized educational institution or an affiliated college is not a fundamental right4.

In TMA Pai the Supreme Court held that right to establish educational institution is a fundamental right under Article 19(1)(g). The proposition was founded on a conviction that education is an occupation. Occupation is an activity. Is a citizen entitled to say that he has a fundamental right to engage in an activity involving education, which is a governmental function and national wealth? There is no elaboration on the crucial aspect in TMA Pai, In fact ‘battle lines’ had not been drawn up in the correct perspective and ‘many of the aggrieved or affected parties were not before the Court’6. The observations in TMA Pai were vague and uncertain and the judgment in TMA Pai came to be rewritten by a subsequent Constitution Bench of lesser corum ‘to some extent, however little it may be’7. Nevertheless, certain observations and finding in TMA Pai continued to be 'contradictory inter se’8. Islamic Academy explained that what was prohibited in TMA Pai was 'profiteering' and not making profit, and further explained that 'profiteering' meant making 'excess' profit'. P.A. Inamdar made the position more clear and said that Article 19 (1)(g) guarantees fundamental right to establish educational institution either as a charity or for profit. P.A. Inamdar gives an impression that trade in education is a trade for the purpose of Article 19(1)(g) only if it amounted to 'profiteering'; a proposition which is too preposterous for a common mind to accept.

The Government's argument in Unnikrishnan that it had no money for higher education was readily accepted by the court. In 1968 the National Policy on Education set a target of 6% of national income on education. Most of the countries spent more than 6% of national income on education. Some countries spent more than 10%. Countries which are poorer than India spend more than 4% of national income on education. In India, the amount spent is less than 3%. As per Human Development Report 2004, India ranks 78th among 137 countries with respect the share of public expenditure on education in terms of Gross Domestic Product (GDP). Kothari Commission had suggested that more than 6% of GDP would be necessary for development of education in India. In 1994 Swamindhan Committee suggested a levy of education cess on the corporate sector for financing technical education. Common Minimum Programme of the present Government ensured that 'nobody is denied professional education because he or she is poor'. But no effective remedy has been sorted out so far. Low fees, scholarships and freeships are not at all on the agenda of the Government. Swaminadhan Committee's proposal for setting up an Educational Development Bank of India with the contributions from the Union and State Governments, the corporate sector and others has not received the favourable attention of the Government. In short, it is too tall a claim for the Government to say that it did whatever it could do to finance higher education within the limits of its capacity and development.

All judgments from Mohini Jain to Inamdar prohibit capitation fee. Capitation fee, according to Mohini Jain, is nothing but a consideration for admission. Capitation fee brings to fore clear class bias. It enables the rich to take admission whereas the poor has to withdraw due to financial inability. A poor student with better merit cannot get admission because he has no money whereas the rich can purchase the admission3. Any amount, which is charged by an educational institution for admission beyond the fee which commensurate with the service rendered by the institution has to be considered as an amount taken as consideration for admission. Huge amount charged from students by an education institution, which is beyond the reach of common men, to make good the investment made and to generate surplus for future development, would fall in the category of 'capitation'. In short, it will not be an unfair criticism to say that by allowing private educational institution to charge fee commensurate with the cost of investment, infrastructure and reasonable profit for future development, 'capitation' stands legalized. Since any amount charged beyond the fee so fixed would amount to making excess profit, which is also prohibited, there is no occasion any more for the institutions to charge any capitation fee at all. After all, in a free market economy where there is no Government control or the control is minimum, price is governed by the market forces based on the basic economic principle of demand and supply. The high price tag on medical degrees is only because medical degrees are in short supply. Even in the case of medical degrees, there would be no takers if the entire cost of investment which includes cost of 25 acres of land, cost of the building, infrastructure and the minimum bank guarantee of Rs.4 crores, is passed on to the students. Educationists cannot, therefore, be faulted when they say that in the long run the education policy laid down by the Supreme Court is neither practicable nor workable.

All professional institutions cannot be expected to maintain the same standard or quality. Quality of education may vary having regard to the eminence of the faculty and quality of the facilities provided. TMA Pai mandates private professional institutions to admit meritorious students based on common entrance examination conducted by the State agency or by the institution itself. Common entrance examination, in fact, is an elimination test. The basic qualification is a pass in the school leaving examination. Common entrance test was necessitated for avoiding arbitrariness in selection since marks awarded to students by various Boards conducting the school leaving examinations, may not conform to uniform pattern. Islamic Academy has found that students were put to undue hardships when they are asked to write several entrance tests conducted by a number of institutions. Islamic Academy, therefore, held that 'common entrance examination' contemplated in TMA. Pai is not entrance test conducted by individual institutions but common entrance test conducted by a consortium of private professional colleges and institutions. Why should not these institutions be asked to make admission based on the Common Entrance Test conducted by the State or State agency? Which right of the private educational institution is thereby affected? Islamic Academy, however, exempts certain institutions, which are 25 or more years old from resorting to Common Entrance Examination conducted by the State agency or the Association of Colleges and permits them to conduct their own examinations. It is highly illogical to say that Entrance Examination conducted by a 10 or 15 years old institution is not a common entrance test and an entrance examination conducted by an institution which is 25 or more years old is, nevertheless, a common entrance examination. There cannot be any presumption in law that all institutions which are 25 or more years old impart excellent and high quality education. When an educational institution which is less than 25 years old and which due to its excellent faculty and facilities offered, is capable of attracting best talent among the students, Islamic Academy apparently prevents it from formulating its own entrance test with a view to intake students of better merit of its choice. There is no reason why an educational institution which is less than 25 years old and imparting education of high quality or standard should not be allowed to conduct its own entrance test, if the Government or the concerned authority is satisfied about the better quality of education offered and the high quality of entrance test formulated by the institution.

When the executive fails the court is bound to intervene. The reason for the court to evolve its own educational policy is not, therefore, ill founded. But the judgment proves that Judges are poor educationists and economists. Eminent academicians and Educationists were not taken into confidence while evolving the educational policy for the future. Amrik Singh, an eminent Educationist, points out that the Judges of the Supreme Court "were far removed from the ugly reality of how primary education or even upper primary education is imparted and were, for the most part, unaware of the social reality as also the academic callousness from which most of those children suffered. When they decided to charge the lower fee in the case of the first 50%, the assumption was that parity of treatment was being extended to these children. The bitter truth was that the really poor and the disadvantaged had already dropped out at various levels of school education and it was a very small percentage of them who had managed to survive and join the higher classes9. He also points out that 'discrimination against the disadvantaged sections of the society, begins from the beginning. Either the children of these disadvantaged groups fail to get into school or drop out by the time the primary school is over. The most significant thing at that level is the dropout rate, which, on an all India basis, worked out to be more than 40%. Not each one of the children was poor though most of them were. And quite a few dropped out because teaching was substandard and the children, more precisely their parents, felt that the years spent at school were not likely to prove rewarding in any way". It was only out of these survivors that some of them qualified for admission to a professional institution. The percentage of such students are presently estimated to be roughly about 10 to 20%. According to Amrik Singh "educational policy has to be framed by those who deal with education and understand the details".

TMA Pai says that "it is well established all over the world that those who seek professional education must pay for it" and that in such matters 'economic forces have a role to play'. The Education Policy statement of USA, a country where free market economy prevails, states that 'in education service sector, Governments will continue to play important roles as suppliers of service' and that 'education to a large extent is a government function and it does not seek to displace public education systems. It seeks to supplement public education systems10. Available data do not, therefore, indicate that education has ever been fully privatized anywhere in the world.

TMA Pai gives an apparent impression that 'minority' and 'non-minority' are to be treated equally. Islamic Academy took pains to explain that this is not so. Till TMA Pai, fundamental right of non-minority institutions to establish education institutions under Art.l9(1)(g) had not been recognized and fundamental right of minority educational institutions to establish educational institutions flowed only from Article 30. Reasonable restrictions on fundamental rights permitted under the proviso to Article 19(1) (g) having brought to bear on the minority rights under Article 30, there was apparently no difference between minority rights and non-minority rights. The earlier law that 'no regulation can be cast in the interest of the nation if it does not serve the interest of the Minority as well11, having been overruled in TMA Pai, there was also no room for any doubt about the additional protection given to the minority educational institutions. The argument has been further cemented by Inamdar, holding that higher the level of education, lesser are the seats and higher weighs the consideration for merit' and therefore 'it will, necessarily, call for more State intervention and lesser say for minority'.

Reservation in favour of backward classes is not anti meritian12. The State, due to lack of fund, having abdicated its function to impart higher education in favour of private educational institutions, has a duty to ensure that the poor is not denied equal access to higher education by the private educational institutions only because they are unable to meet the financial commitment on account of fees. The share of backward classes in higher education can be ensured only by reservation of seats in their favour. There is no meaning saying that such a reservation will erode merit. Even in Indian Institute of Technology, a prestigious institution reservation of seats are provided to students belonging to Schedule Caste/Scheduled Tribe. The prestige and standard of IIT did not, thereby diminish in any way. There is also no meaning in saying that while the educational institutions could suffer erosion of merit by in take of students under quota for Non Resident Indians, erosion of merit could not be permitted by way of reservation in favour of backward classes. Reservation in favour of backward classes, after all, is in the constitutional scheme and is permissible under Articles 14 and 15 of the Constitution of India. Therefore, reservation in the interest of the nation and the society is a reasonable restriction. The argument based on cross subsidy also does not appear to be any more realistic in Indian situation. It is neither practical nor possible, at least in relation to admission to medical degree courses, to charge fees commensurate with the cost of investment and infrastructure of a private educational institution, which may run into crores of rupees. An educational institution has, therefore, to look forward to outside aid or private donations to recoup the capital expenditure. There is, therefore, no occasion for a student to pay for another. In TMA Pai, the Supreme Court directed a certain percentage of seat to be reserved having regard to local need and also keeping in mind provisions to be made for the poor and backward sections of the society. The Constitution Bench of seven Judges, in Inamdar, has virtually overruled the direction of the Constitution Bench consisting of eleven judges, in TMA Pai. stating that what the Bench in TMA Pai meant was only a consensual arrangement, which apparently did not look constitutionally permissible.

Obviously, the remedy is to go back to Mohini Jain, and start the judicial exercise all over again, 'battle lines' properly drawn, and taking educationists and academics into full confidence.

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1. George Orwell: Politics & English Language

2. St. Stephen College v. University of Delhi ((1992) 1 SCC 558)

3. Mohini Jain (AIR 1992 SC 1858)

4. Unnikrishnan v. State of A.P. (AIR 1993 SC 2178)

5. T.M.A Pai v. State of Karnataka (AIR 2003 SC 355)

6. See the observations of Justice Variava in TMA Pai

7. See the observations of Justice Sinha in Islamic Academy of Education v. State of Karnataka (2003 (3) KIT (SC) (SN) 118 = (2003) 6 SCC 697)

8. P.A. Inamdar v. State of Maharashtra ((2005) 6 SCC 537 = 2005 (4) KLT (SC) (SN) 3.

9. Amrik Singh: The Challenge of Education.

10. Dr. Jane Knight, Trade in Higher Education Services; The Implications of GATS.

11. Rev. Sidhajbhai Sabhai v. State of Gujarat (AIR 1963 SC 540).

12. lndra Sawhney v. Union of India (AIR 1993 SC 477) 

Refund of Court Fee - A New Rule of Practice

(By V.K. Sathyavan Nair, Advocate, Kottayam)

It is submitted that the directive of the Division Bench in 'The Sree Sankaracharya University of Sanskrit v. State of Kerala reported in 2005 (4) KLT 1026 requires reconsideration. The main grounds are encapsulated below.

The Court, in the above case has framed a new rate regarding refund of court fee setting at naught the well recognised and time honoured practice hitherto followed. The Division Bench mandated that refund order should be issued in the name of party in all future cases unless otherwise ordered by the Court. The raison d'etre of the new directive has neither legal nor logical foundation, though the objective may be laudable. Moreover the observation that this will avoid misappropriation of the amount by middlemen (emphasis supplied) is unfortunate and embarrassing and casts a shadow of distrust over the integrity of the legal profession tending to unsettle the rudimentary principles governing the powers, right and privileges of counsel hallowed by usage and followed by courts.

The Court was disposing applications in Land Acquisition Appeal filed by the Appellant praying that refund order of court fee in the remanded case be issued in the name of the party and not in the name of the counsel. While allowing these applications the Division Bench issued a further direction applicable to all proceedings covered by Sections 66 to 69 of the Kerala Court Fees and Suits Valuation Act, 1959. Whenever Court Fee is to be refunded, hereafter, the refund orders should be issued in the name of the party and the Registry has been directed by the Bench to inform the Subordinate Courts also to follow such practice.

There can hardly be any doubt that if the party applies to the Court for issuing the refund order in his name normally there is no reasons for rejecting the same. The matter could have ended there. But the Court went further and framed a new rale of practice with the avowed objective of preventing misappropriation by middlemen.

Who are these middlemen referred to by the Division Bench? Obviously none other than the counsel appearing for the client. 'Middleman' means intermediary or agent. Can an Advocate holding the Vakalath of a client be properly termed as middleman by a Court of law?

Undisputably an Advocate is not a mere middleman, but a fiduciary standing in a loco parantis towards litigant. He enjoys a tripartite relationship, one with the public, another with the Court and the third with his client. Other professions or calling, K.K. Mathew J. observed in AIR 1968 Ker. 213, may include one or two of this relationship but no other has the triple duty.

'Those who know how Courts and counsel function will need no education on the jurisprudence of lawyer's position and powers' commented V.R. Krishna Iyer, J. in AIR 1975 SC 2202. The Apex Court while discussing the role of counsel and the scope of his authority has quoted K.K. Mathew J. and V.R. Krishna Iyer, J. and relied on their observations made in the cases referred to above. See AIR 1991 SC 2234, 1992 (1) KLT 368 (SC) and also 1992 (2) KLT 803.

The Supreme Court gives a very wide interpretation regarding the scope of authority of an Advocate and has even permitted him to compromise the suit on behalf of his client. It cannot be gainsaid that a member of the Bar is also considered as an officer of the Court and he is not a mere mouthpiece of his client. I am not unmindful of the fact that there are members who fail to maintain the standard and tradition of the profession. But that is the case with every profession, occupation, calling or office. There may be black sheep. Nevertheless in the case of lawyers there is a difference. Unprofessional acts invite disciplinary action and punishment. He is answerable for professional or other misconduct as per S.35 of the Advocates Act, 1961. An Advocate has no right to appropriate money received on behalf of his client. Money of the client coming into the possession by the lawyer, while the money remains with him is to be treated as trust fund. Apart from disciplinary action the betrayed client has the remedy of filing suit against the Advocate.

In this context it may be noted that complaints by clients against non-payment of refunded Court fee are very rare. In fact there has been no such complaint. Then what is the occasion for the interference by the Court.

In the new rule of practice embodied in the order of the Division Bench is stretched to its logical absurdity, the inference is that a lawyer cannot be allowed even to receive the decree-debt or other sums payable to his client in the suit or proceedings.

I may also point out that in subordinate Courts whenever a compromise petition is filed a term would be specifically incorporated that refund may be made to the counsel. When the compromise petition is accepted by the Court and a decree is passed and the authorisation made by the party in favour of his counsel becomes part of the decree. Is the new practice introduced by the Court applicable to such cases? If it does, in effect, the term of a lawful compromise decree is nullified. The point requires clarification.

A reading of Order III C.P.C., relevant rules contained in Civil Rules of Practice, Form 12 Vakalath and authoritative pronouncements or the question of authority of Advocate would undoubtedly show that the counsel is entitled to receive money on behalf of his client and the judicial approach of the Division Bench in the Sankaracharya University case is not free from doubt as the direction is based on an incorrect surmise and the implication is really disheartening. Insistence of issue of Cheques to parties may be justified under special circumstances attending an individual case or class of cases and in the present case I am unable to find any reasonable justification for the mandate that refund orders shall not be given in the name of counsel and hence the directive requires reconsideration. In concluding I may make it clear that I have only expressed my doubts regarding the rationale behind the direction and wanted to point out that it is uncharitable to bracket together counsel and middlemen and the writer is of opinion that stringent action shall be taken against delinquent counsel guilty of misappropriation of clients' money received by way of refund or otherwise.