A Constitutional Imbroglio

(By Sri. Mayakrishnan, Advocate, Ernakulam)

Ms. Jayalalitha has now been sworn in as Chief Minister of Tamil Nadu. A debate is going on its legality. Jurists and political pundits have aired their divergent views. What would be the effect present and future of the conundrum?

Ms. Jayalalitha's nomination papers were rejected by the Returning Officers under the authority of S.8(3) of the Representation of People Act she being disqualified as a person convicted. Needless it to say that the R.P. Act holds ground as constitutional and has its sway.

Governor of a State appointed under Art.155 is subordinate to the Constitution; more than a representative of the President. Thus the Governor is to abide by the Constitution and any other law enacted under it. In that view, the actions of the Governor should also not be derogative to the provisions of R.R Act. On these lines we cannot assume that the orders of Returning Officers rejecting nomination papers of Ms. Jayalalitha should not have been taken note of by the Governor of Tamil Nadu. Art.163 of the Constitution envisages that there shall be a Council of Ministers headed by the Chief Minister to aid and advise the Governor in the administration of the State. Art.164(1) empowers the Governor to appoint the Chief Minister and other Ministers on the advise of Chief Minister. Constitution does not fetter the power or authority of the Governor to appoint the Chief Minister. Constraint placed otherwise under Art.164(4) is that the person so appointed as Chief Minister or Minister, if not an elected member of that house shall cease to be so if he does not become a member of that house within six months of the appointment. The moot question is, if a Chief Minister appointed thus cannot or is not expected to become a member of that House within the period prescribed under Art.164(4), as there is an expectation otherwise, whether that appointment is lawful?

A probe into the legislative intent of S.8(3) of R.R. Act would reveal that a person convicted of any offence and sentenced lo imprisonment for not less than two years shall be disqualified from the date oi conviction and shall continue as such for a further period of six years since his release i.e. the disqualification runs to a minimum period of eight years for that person to become a candidate for election to Parliament or State Legislature. Ms. Jayalalitha could neither claim protection under S.8(4) nor immunity from the mischief of S.8(3) of R.P. Act in as much as her nominations were rejected under S.8(3) when she staked her claim to form the Government at Tamil Nadu. A perceived doubt nonchalantly arises; whether a disqualified contestant appointed as Minister under Art.164(1) can aspire to contest another election within six months. Such an eventuality can be only in imagination or on the fall out of a series of happenings in her favour. One can wish it. But, if all the wishes are dismounted and the ambitions left astray, a political error of perception stand created. The Chief Minister shall have to vacate the office and the Ministry become the prey. The obstinate members of the Legislature if again, after six months elects the outgoing disqualified Chief Minister as its leader and the Governor is required to appoint the same person as Chief Minister, a political imbroglio crops up. What next ? Nomination to the upper house under Art.171(3)(e). An action under Art.356 of the Constitution or a fresh election or ask the legislature party to elect a different leader, to which they are not obliged to. Will there be cogent reasons warranting an action under Art.356. Shall the Constitution be rendered otiose? These are all matters to be debated. However such a situation would put all concerned back lo the original dilema. Obviously the Governor shall have to exercise powers again. The Constitution does not limit the powers of the Governor and if it can be foreseen as discernible from S.8(3) of R.P. Act that disqualification (if not likely to overcome) can be for a period of sentence and coming six years) what shall be the plausible step?

Our Constitution is silent whether the Governor can act otherwise or not. But it connote the choice of the Governor is not limited, leading to an implicit understanding that the Governor is empowered to exercise discretion. Governor's role as a guardian of Constitution is undisputed. A scrutiny of Art.164 does not unleash a supposition that the Governor has abiding duty to invite the chosen leader of the legislature party, though we follow it as a convention, to form the Government, when that person is not a member of the legislative assembly obviously by disqualification under R.R. Act. Exercise of discretion is necessarily demanded when a fair presumption of elimination of disqualification is an obscure trajectory. The question remains whether the Governor is bound to invite the elected leader when that leader is disqualified for past deeds to become a member of the house for the time being. The answer is in the negative going by the Constitution. We are entitled to import such a logical conclusion that the Governor can decline to invite the elected leader to form the Government, if the Governor in exercise of the discretion is satisfied that such invitation is apparent to the Constitutional mandates, if it cause a ruin of spirit of the Constitution or ushers a stalemate. The word 'Discretion' has been subject of judicial scrutiny more than once. Hon'ble Supreme Court, quoting Lord Halsbury reiterated; "Discretion means, when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion:............; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confer himself" (AIR 2001 SC 24 at page 33). Thus while exercising discretion, action pursuant to it is in consonance to the ideals and aspirations, of the founding fathers of the Constitution, nay to the citizens of the country, that exercise satiates the constitutional requirement.

We interpret the articles of the Constitution. The endeavour is not complete nor can we find the other end of it. Limitless are the missing links glaring at us. There are oblique manifestations therein. Art.164(4) transposes an expectation that a Minister who is not a member of the House shall become so within six months or at least can be expected to be so. As on date Ms. Jayalalitha is disqualified and may continue so unless happenings turn otherwise. Is there any legitimate expectation that the disqualifications shall whittle away before six months? Can the invitation to form the Government be extended to any on the strength of that expectation? Will it be legal? In the context, it has already come on record that the AIADMK legislature party has made it known that they are not prepared to consider a second name as their leader for the time to come. A subtle choice for them on the symmetry of our legal structure was to wait till the termination of the cases.

In Kerala, Shri. R. Balakrishna Pillai, a member of the dissolved assembly, also convicted for corruption charges during the period he was a member, filed his nomination to contest the assembly election. Protection under S.8(4) was extended to him. His nomination was accepted and he was declared the returned candidate. United Democratic Front, of which Kerala Congress (B) is a constituent, acquired absolute majority. Leader of the UDF was invited to form the Government. Being the Legislature Party leader of his party, Shri. Pillai was the unprofaned choice. But as we understand the Governor of Kerala revealed his reservations against the induction of Shri. Pillai in the Ministry and unrelentingly the UDF leader heeded to the advice of the Governor. It cannot be ignored that Constitution does not prohibit the appointment of Shri. Pillai as a Minister. There cannot be another opinion that he was left out for upholding democratic values and political ethos.

Charges against Ms. Jayalalitha in the pending cases are unmasked to one and all. What shall be its fate she being at the helm of administration of the State? Will she be naive and have an unabashed mind against the cases. No one need to assert a dissent but dispassionately acknowledge that Ms. Jayalalitha is an uncanny political strategist. From the filing of the nominations culminating to the ceremony of taking oaths of office and secrecy that has been vociferously before us. She has been mightily successful to lead her followers to ride the crest of the wave to a remarkable victory. It is argued that the outcome of the election is the will and verdict of the people. But the Constitution and other laws are not to put to the shelf for the time on the political will and verdict of the people. Indeed law is for the society. It should also change on the need of the society. Social needs confined for long conforming to the custom become confirmed law. But there will be no buyers to the proposition quid pro quo Constitution for the facts in issue.

We have experiences seeing succeeding Governments give primacy to search of the skeletons of past regime to settle political scores resorting to vindictive measures to rout political opponents. Statute also empower Governments to withdraw from prosecutions. Brandishly it is used in cases undermane to the interests of those in power to avoid cascading political effects. S.321 of Code of Criminal Procedure 1974 empowers every Public Prosecutor to apply for withdrawal from prosecution with the consent of the court. Though function under this section is discretionary, misuse of this section is rampant. If Tamil Nadu Government decides to withdraw all cases pending against its Chief Minister holding high the 'People's will and verdict', what shall be the repurcussions? It is not disheartening that this executive function of the Government cannot be questioned (AIR 2001 SC 116). Opinions may differ but misuse of S.321 Cr. P.C. will be an aggression on the independence of judiciary which has to be preserved. However, any such action can be tested pitting against the touchstone of Art.164(3) under which the oath of office and secrecy are taken. The maxim 'Nemo debit esse judix inpropria causa' - No man shall be judge of his own cause - is relevant here.

This is only a loud thinking as a possible turn out of the events for the ensuing time. The fear is how sovereign the Constitution we gave unto us more than half a century ago.

Dismissal of Complaint Under S.203 Cr.P.C. When the Complainant Abandons the Complaint Without Offering Statements - Legality –Regarding

(By Vakkom P.S. Balasubramaniam, Advocate, Thiruvananthapuram)

In the decision reported in 2001 (2) KLT SN 48 (Case No. 55), it has been ruled that S.203 of the Code of Criminal Procedure, 1973 (for short "the Code") is attracted only after considering the statements on oath of the complainant and of the witnesses and the result of inquiry or investigation under S.202, the Magistrate is of opinion that there is no sufficient ground for proceeding the complaint.

But an instance of dismissing a complaint under S.203 (for short "the Section) of the Code, even in the absence of such statements might be legal, if the complainant absents himself from appearing before Court and if he fails to produce witnesses. A careful examination of the section read along with an illustration may rejuvenate this aspect.

S.203 of the Code reads as follows:-

"203. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under S.202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

On a reading of the said section, it could be seen that the section has two parts. The first part lays down the materials, if any, which the magistrate must consider. The second part says that if after considering those materials there is in his view no sufficient grounds for proceeding, he shall dismiss the complaint.

So, under S.203 of the Code, the statements, if any, made by the complainant on oath before Court read with the allegations in the complaint, constitutes the material for determining the fate of the complaint. Here, the cardinal aspects to be considered by the Magistrate is whether the complaint has the essential ingredients of the offence alleged and it would be a waste of time to proceed with the complaint.

As stated earlier, what the Code empowers the Magistrate is to consider, the statements. if any, on oath of the complainant. In other words, the code does not direct the Magistrate to wait for the complainant's statement on oath, if the complainant fails to appear before the Court. That is why, the words "if any" is included in the provision.

On the other hand, if the Magistrate was bound to wait till the complaint appears and offers his statement on oath, then the section would have been drafted excluding the words "(if any)". As such it could be seen that the words "(if any)" had been included purposely to avoid waste of precious judicial time and thereby to avoid the abuse of the process of law. Same is the case in the matter of an inquiry under S.202 Cr.P.C, envisaged in S.203 of the Code, if the complainant fails to produce witnesses before the Magistrate.

Therefore, S.203 of the Code might be applicable to cases, where a complainant absents himself, as a result of which he fails to offer statements on oath and when he fails to produce witnesses.

The following illustration may explicate the aspect further: (This may be one of the several possible situations)

'A' files a complaint against 'B' alleging an offence punishable under S.324 IPC before a Magistrate. But before offering his statements on oath or of the witnesses, 'A' gets advice that he may not-succeed in the case and may become liable for malicious prosecution. So, 'A' abandons the complaint. Thenceforth, 'A' does not appear before Court and produce witnesses. As a result of this, the Magistrate cannot record the statement of 'A' or any of the witnesses on oath.

In such circumstances, what would be the course of action open to the Court? Whether the Magistrate has to keep the case on file till 'A' offers his statements on oath?

In those situations, it would be a waste of precious judicial time to proceed with the complaint. Further, the Code does not authorise the Magistrate to supplement the sworn statement of the complainant to determine the fate of the complaint under S.203 of the Code. Whereas, the Code, by way of the usage "(if any)", empowers the Magistrate to dispense with the complainant's statements on oath and to dismiss the complaint on merits by recording the reasons thereof. So, it could be seen that S.203 of the Code could be applied even without examining the complainant and holding inquiry under S.202 of the Code, if he fails to appear before the Magistrate and if he fails to produce witnesses and the Magistrate feels from the conduct of the complainant that he is abstaining from appearing purposely.

If the complaint could be dismissed only after the complainant offers his statement on oath and only after producing witnesses before the Magistrate, then the complaint might have to be kept on file (for ever), till the complainant shows mercy to the Court.

A Comment on 2001 (2) KLT 767

(By Yesudasan Varghese, Advocate, Thiruvananthapuram)

The Honourable High Court of Kerala, very recently in Gopalakrishnan v. State of Kerala 2001 (2) KLT 767 ruled that 'the accused has no absolute right to cross examine the prosecution witnesses under S.244, Cr.P.C With utmost respect to the Honourable Justice and the High Court, the writer begs to disagree with the said ruling firstly for the reason that the said section neither confers an absolute right on the prosecution to examine its witnesses, as such. What is exactly provided under S.244 is a combination of a duty or power of the court coupled with a right of the prosecution. The right accrued to the prosecution thereby is a right to a hearing and the production of evidence (not witnesses as such). The examination of witnesses for prosecution is only an incidental or consequential right, accruing therefrom. It is humbly submitted that neither Criminal Procedure Code nor Civil Procedure Code confers on either party an absolute right to examine their respective witnesses. The right to examination of witnesses is conferred by the Evidence Act by necessary implication. According to the Evidence Act, when there is an examination in chief of a witness by any party, it must be followed by a cross-examination, unless waived by the adverse party (Please see S.138).

The judgment proceeds to record that from a reading of sub-s. (1) of S.244 along with sub-ss.(4) and(5) of S.246 it is clear that the legislature does not intend to confer on the accused an independent right of cross-examination under S.244 of the Criminal Procedure Code (Sic). It is humbly submitted that the provisions under sub-ss.(4) and (5) of S.246 only indicate the intention of the legislature to afford an opportunity to the accused to cross-examine the prosecution witnesses who were earlier examined under S.244 and whose cross examination was either waived or incomplete or could not be had for any reason whatsoever. Because oral evidence cannot be good evidence unless it is gone through the three stages enumerated under S.137 of the Evidence Act and tested under provision of S.138 of that Act. Of course. the concerned parties have a right to waive either cross-examination or re-examination.

It may also be please noted in this context that even though the words, "the Magistrate shall proceed to hear etc." in sub-s. (1) of S.244 have been used, it is not mandatory to hold an enquiry under that section as the word, "shall" can mean "may" in view of the provision under S.246(1) which lays down that "if, when such evidence has been taken, or at any previous stage of the case......etc". Under the circumstance, the observation recorded in para-4 of the judgment that the trial in a warrant case instituted otherwise than on a police report does not start till the evidence is taken under S.244 of the Criminal Procedure Code' (Sic) is respectfully dissociated with. It is also humbly submitted that any criminal trial starts only with the framing of charge and, to be more precise, by the reading over of the charge to the accused.

I further most humbly disagree with the observation made in the judgment (para-4 itself) that even if no opportunity is given to the accused to cross-examine the witness during the enquiry, no prejudice would be caused to him, since he gets the opportunity to cross-examine the witnesses at the trial stage', (sic). If it is so, the witnesses get an additional opportunity to learn and discuss what they have already told the court, to get advised and tutored on the anticipated questions in cross, there by mitigating the prospect of a good cross-examination and then come prepared to stand the test of cross-examination at the trial stage. Of course, the accused also get a similar opportunity of learning and discussing the deposition in chief and prepare unanticipated questions in cross as far as possible. However, tension continues in the minds of the witnesses examined in chief as to what is going to be asked in the cross and in the mind of accused as to what is going to be answered in the cross till the suspense is broken at the trial stage. So, it cannot be said that no prejudice is caused to the accused if he is not allowed to cross-examine witnesses at the enquiry stage. It can be said that prejudice is caused to both parties. So, it is always fair and safe to avoid a contingency. Please also note that the postponement of the cross-examination of a prosecution witness is a discretion of the court under the proviso to S. 242 of the Code in the trial of a warrant case.

S.309(1) of Criminal Procedure Code lays down that "in every enquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded" obviously, the section is applicable to an enquiry also and there is nothing to indicate that a witness cannot be cross-examined in an enquiry. The words, "have been examined" must only mean that the witnesses have been examined in accordance with the provisions under the Evidence Act. So also, S.244 does not expressly or impliedly prohibit the cross-examination of a prosecution witness. It is not a discretion of the court to permit cross-examination at the enquiry stage as observed in the judgment, but an independent right itself.

For the above reasons, it is humbly submitted that the refusal of a Magistrate to allow the accused to cross-examine the witnesses examined under S. 244 of the Criminal Procedure Code is per se illegal.

It is humbly submitted further that the law as laid down by the Supreme Court in AIR 1979 SC 94, which the Honourable High Court has relied on the case, ruling that once charge is framed Magistrate cannot cancel it or discharge the accused - Order of discharge after framing of the charge is illegal, etc. does not now hold good in view of the decisions of the Honourable Supreme Court itself in Pepsi Foods v. Special Judicial Magistrate 1997 (9) Supreme 279, laying down that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless and in Satish Mehra v. Delhi Administration 1996 (5) Supreme 742 holding that when it is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure.

The most humble submission of the writer is that the framing of a charge is only an interim order which does not come within the ambit of S.362, Cr.P.C. and hence it can be reconsidered, altered or rescind by the same court that framed it.

A Retired Judge Blames the Tool

(By K.V. Sohan, Advocate, High Court of Kerala)

1. Mr. V. Bhaskaran Nambiar, retired Judge, High Court of Kerala in his Article captioned SHOCKING ARREARS - SHAKING CONFIDENCE (2001 (2) K.L.T. Journal 37) puts the entire blame for the same on Civil Procedure Code and condemn it as:

"an archaic procedure, an unnecessary complicated procedure, a procedure intended to protract proceedings and perpetuate injustice..........The first step to reduce mounting arrears should be to scrap the Civil Procedure Code."

2. So strong is the decry of Civil Procedure Code by the retired Judge that one can compare it only with the famous words of Karl Marx

"the proletarians have nothing to lose but their chains. They have a world to win"1

Similar is the call of Mr. Bhaskaran Nambiar to the litigants that you have nothing to lose but your chain (the C.P.C.) and you have a world to win - the instant disposal of cases.

3. The history of C.P.C. in India began with the first uniform Code of Civil Procedure enacted in 1859. With the amendments from time to time it is a statute which has stood the test of about one and half century. It can no doubt claim to be the source or mother of all the Procedures in various Central and State statutes.

4. When Mr. Justice Bhaskaran Nambiar's opinion is what is stated above, the opinion of an eminent Chief Justice Mr. Justice Chagla is that:

"The more you study the Civil Procedure Code the more you realise what an admirable piece of legislation it is".2

The Law Commission in its 27th Report after thorough survey of the Civil Procedure Code came to the conclusion that:

"The Code of 1908 is a product of well-thought out effects and experimentation extending over more than half a century. The Code has stood the test of time. It has on the whole worked satisfactorily and smoothly".3

5. The reason for the delay in disposal of cases is not really due to the fault of C.P.C. It is true that there may be some provisions which requires a second thought. But as a whole it is one of the best piece of legislation which secures a uniform procedure for the country which protects the rights, equality and liberty to the citizens. C.P.C. provides an equal procedure for the rich and poor who approaches the Civil Court. It may be true that for the neo rich class who claims preferential treatment even in temples by a special track may find C.P.C. an inconvenient procedure. The delay in the disposal of the cases occurs not because of the defect in C.P.C. but is always due to the tactics adopted by one side of the litigation and the inexperience of Judges. The Law Commission in its 27th report has stated that:

"There is a popular belief that the technicalities of legal procedure can be exploited and a case continued almost indefinitely if so desired. In a weak case apart from numerous applications for adjournment, frivolous interlocutory applications are made, eg. applications for amendment of the pleadings or for amendment of issues, examination of witnesses on commission, summoning unnecessary witnesses, etc. These tactics do not succeed before an experienced and astute Judge. They succeed only before Judges who have no adequate experience. And such tactics succeed not because of the observance, but because of the non-observance, of the rules of procedure. Delay under this item is therefore not due to any defects in procedure. Rules of procedure are intended to sub serve and not to delay or defeat justice".4

6. The Law Commission in its 54th Report reiterated that "the quality and output of work of Judicial Officers will, to a great extend, depend not only on the mental and intellectual equipment which they possess, but also on their ideals and sense of service". So a proper understanding regarding the social necessity of the judiciary and the purpose of existence of Civil Courts is necessary for a Judge. It was in this context the Law Commission stressed the necessity of training on an all India basis to the Judicial Officers by establishing an Institute and stated that:

"the subjects to be included should be such as to deal with the relationship of law to other social sciences including in particular economics and sociology. The emphasis should not be on technical law or procedure, but on law as part of an inter-disciplinary study and on the application of the law to the facts of a particular case."5

7. Many a time rather than the defect in procedure, the interpretation of the Judges is the reason for the delay. As stated by Justice Cardozo "a system of procedure is perverted from its proper function when it multiplies impediments to justice without warrant of clear necessity". Some of the decisions which belonged to the category are that, copy of the decree has to be accompanied for filing review or to set aside exparte decree or for filing appeal from the Single Judge's decision to the Division Bench and that fresh notices has to be issued after an indigent application is numbered as a suit. If properly interpreted and used, immediately after the decree is passed Courts can post the case for compliance of the decree, of course by giving sufficient time to appeal and obtain stay, and direct the plaintiff or petitioner to file a formal execution petition. So also in partition and suits for accounts when preliminary decree is passed, immediately steps for final decree can be started without issuing fresh notice. When we discuss the defects in procedure it should be creative to remedy the existing defects. In the absence of a procedural law like C.P.C. there will not be any security from unscrupulous and corrupt litigants and the rights of the citizens will be insecure.

8. The procedure exists for the sake of something else, for the sake of substantive law. This is a primary objective, but procedure has many secondary objectives. It must give the parties a feeling that they are being dealt with fairly. An orderly and expeditious processing of litigation is a right which each of us should be able to ask of our judicial system, no matter what our status in life or how meagre or non-existent our resources may be. As an American writer has observed:

"the need for procedural improvement in the civil courts is a subject of much current interest and effort on the part of the organised American Bar, as well as of the judicial and other official agencies. It is fair to state that a steady progress in the improvement in civil procedure is being made. It is doubtful, however, whether any efforts at reform, no matter how sincere or how long continued, can reduce our civil procedure to that degree of simplicity which the layman is likely to think it ought to have. The situations which rules of procedure are designed to meet are in many cases rather complicated; and the framing of 'simple' rules to control complicated situations too often results not in simplicity, but rather in uncertainty and ambiguity, the resolving of which in turn entails the exercise of uncontrolled, and in procedural matters virtually, unreviewable, discretion by the Judge."6

9. Above all it has got a very larger social purpose. As has been stated:

"it is from the practice and procedure of the Courts that is the way in which a case is conducted the facts discovered from examination and cross examination and the like - that the ordinary citizen, as litigant, witness, or even spectator, obtains his experience of our legal system; and on that evidence he is likely to form his judgment on the claim commonly made by Englishmen to excellence in the administration of Justice".7

It is observed by the Supreme Court of United States of America, that:

"the history of liberty has largely been history of observance of procedural safe guards".8

10. With great respect while I agree with some of the other suggestions in the article regarding studious approach, restricting the interim relief, necessity for additional courts etc., I submit that the plea made by Mr. Justice Bhaskaran Nambiar to scrap the Civil Procedure Code is not a prudent plea.

________________________________________________________________________

Foot Note :

1. Manifesto of Communist Party - Selected works of Karl Marx and Frederick Engels Progress Publishers - Moscow - Vol. 1.

2. Quoted from 27th Law Commission Report page 4

Chagla C.J. (as he then was) in his foreword to Scoonavals's Treatise on the Law of Execution Proceedings (1958).

3. 27th Law Commission Report Page 6.

4. 27th Law Commission Report Page 10.

5. 54th Law Commission Report - Page 330.

6Quoted from 54th Report - Page 9. Mayers, The American Legal System. (1955). Page 242.

7. Quoted in 54th Law Commission Report Page 8 - final report of the Evershed Committee on Practice and Procedure (1953), Para. 1.

8. Bebjamin Mc Nbb v. United States of America (1942) 318 US 332 : 87 Law Ed. 819).

A Critical Note on 2000 (1) KLT Journal 35

(By J. Krishna Kumar, Advocate, Ernakulam)

This article is intended to critically analyse the article published in 2000 (1) KLT Journal 35, written by Sri. Kausar Edappagath, Advocate. In that article the learned Author has criticised the Judgments passed by the Honourable High Court in Jancy Joseph v. Union of India (1999 (1) KLT 422) and in Malappuram Private Bus Operators Association v. Mohan (1999 (2) KLT 898).

In Jancy Joseph's case (supra) the High Court reversed the Consumer Form's order by holding that the Consumer Forum shall not order the arrest or detention of a woman in execution of a decree for payment of money and also held that S.56 of C.P.C. is squarely applicable to execution proceedings before Consumer Forum. In Malappuram Private Bus Operator's case (supra) the High Court reversed the order of Malappuram Consumer Disputes Redressal Forum and held that the Bus passenger is not a consumer as defined under S.2(d) of Consumer Protection Act, as far as Regional Transport Authority is concerned, and further held that the Consumer Forum has no jurisdiction to try the case relating to fare stage of Bus Service.

The learned author of the said article is attacking the above 2 decisions mainly on two grounds. First reason is that, as Consumer Protection Act has created a hierarchy, the aggrieved party's remedy is only to file Appeal before the higher authority prescribed in the Act and the order of Consumer Forum is not amenable to writ jurisdiction. Second aspect is that in Jancy Joseph's case (supra) High Court has extended application of provisions of C.P.C. in execution proceedings before Consumer Forum. According to the learned author it is against the legislative intent and the Act has restricted applicability of C.P.C. only to certain purposes prescribed under S.13(4) of the Consumer Protection Act. Except for the purposes prescribed in S.13(4), provisions of C.P.C. is not applicable to proceedings before Consumer Disputes Redressal Forum, the author opines.

In this context first question to be discussed is that, whether the Consumer Forum is amenable to writ jurisdiction?

Under Art.227 of the Constitution, the High Court has the power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power of superintendence conferred on High Court is very wide. That does not mean that the power is unfettered. This power is extraordinary in nature which is to be exercised in appropriate cases in order to keep the subordinate courts within the bounds of their authority and to provide justice in demanding circumstances. In the following instances order of courts, Tribunals and authorities are subjected to judicial review.

i) When there is want or excess of jurisdiction

ii) When there is procedural irregularity or disregard of natural justice

iii) When there is error of law apparent on the face of the record but not error of fact.

In the above circumstances High Court can exercise writ jurisdiction to control the authority. In State of U.P. v. Mohammad Nooh (AIR 1958 SC 86) the Supreme Court hold that 'writ of certiorari' is issued to a body performing judicial or quasi judicial function for correcting error of jurisdiction, as and when an inferior court of tribunal acts without jurisdiction, or in excess of it, or fails to exercise it. In a recent decision (Alice Kutty v. Kadambazhappuram Grama Panchayat (1996 (2) KLT 203) the High Court reiterated this dictum and further held that in such cases High Court can invoke its power under Arts. 226 and 227 of the Constitution. In Syed Yakoob v. Radhakrishnan (AIR 1964 SC 477) the Honourable Supreme Court held that an error of law which is apparent on the face of the record can be corrected by a writ of certiorari.

A writ of certiorari is issued against a court or Tribunal when it acts in flagrant violation of principles of natural justice. If the order of the authority is in violation of natural justice, without preferring appeal, the aggrieved party can approach the High Court by invoking its extraordinary jurisdiction. In such cases alternative remedy is not a bar to invoke extraordinary jurisdiction of the High Court. In Pradeep v. Kandanassery Panchayath (1996 (2) KLT 775) the Honourable High Court held that a writ of certiorari can be issued in a case where there has been a denial of natural justice before a court of summary jurisdiction dispute exercise of alternative remedy.

Even if the hierarchy of forums are created under Consumer Protection Act, the power of judicial review vested with High Court clothed with constitutional mandate cannot be taken away. It is also unwise and highly risky to do so. The constitutional safeguard provided to protect the citizens from the arbitrary acts of the authorities cannot be lightly converted by new legislation. In Sajeevi v. State of Kerala 1994 (2) KLT 127 (FB) High Court held that existence of alternative remedy does not taken away the jurisdiction of the High Court to grant relief.

In Keshavananda Bharath's case (AIR 1973 SC 1461) it was held that judicial review is an integral part of the constitutional system and basic feature of constitution. In a yet another landmark decision (Chandrakumar v. Union of India (AIR 1997 SC 1125 at p. 1150) this dictum was reiterated by the Hon'ble Supreme Court. The position in common law is same that of our system. English courts are also invested with writ jurisdiction as that of High Courts in India. In Electricity Commission case (1924) 1 KB 205 Lord Atkin J., observed that 'whenever anybody of persons having legal authority to determine questions affecting the rights of the subjects and having the duty to act judicially, and if they act in excess of their legal authority, they are subjected to the controlling jurisdiction of the Kings Bench Division exercised in the writs'. In this context I would like to quote from the speech delivered by his Lordship Justice K.T. Thomas reported in 1997 (2) KLT Journal 23 that "All public authorities are under the jurisdiction of law and that judicial Review is a power inextricably intervened with the higher court of land, namely High Court and Supreme Court. Based on all the above aspects and decisions discussed supra, one can firmly agree with the proposition that order of consumer forum is amenable to writ jurisdiction.

The second point to be discussed is whether the High Court has erred in extending S.56 of CPC in execution proceedings before Consumer Forum.

According to the learned author of the Article in 2000 (1) KLT Journal 35, provisions of C.P.C. is made applicable in a proceeding before Consumer Forum, is only for limited purposes mentioned under S.13(4) of the Act. I am of the firm opinion that the High Court has rightly held that the order of Consumer Forum shall be executed in the same manner as a decree of a Civil Court. S.3 of the Consumer Protection Act clearly prescribes that the Act shall be an addition to and not in derrogation of other laws for the time being in force. By conjoint reading of S.3 and S.25 of the Act legislative intent is clear and unambiguous. Even though the Consumer Protection Act is a benevolent legislation, Consumer Forum can render justice only in accordance with law in force. In M.l. Builders Pvt. Ltd. v. Radhay Shyam Sahu (1999) 6 SCC 464 para 73, Supreme Court observed that 'Justice is to be rendered only in accordance with law'.

Third point to be discussed is whether the High Court has erred in legal and factual grounds in Malappuram Private Bus Operators (supra) case.

According to the learned author of above article the Consumer Forum has power to decide the fare stages as per S.3 as well as under S.1(4) of the Act. He also opined that the bus passenger is a consumer as defined under S.2(d) of the Act. In my view Consumer Forum has no jurisdiction to deal with farestages or fare of stage carriage in the light of bar prescribed to Civil Court's jurisdiction under S.94 of M.V. Act. Moreover S.3 of the Consumer Protection Act specifically states that the Act is not in derrogation of other laws for the time being in force. As Motor Vehicles Act is a special enactment which governs Motor Vehicles, for the fixation of fair stage etc. it will prevail over the Consumer Protection Act. The maxim 'generalia specialibus non derrogat' which indicates that the provisions of Special Act overrides the provisions in General Law. The High Court rightly held that, a bus passenger is not a consumer as far as R.T.A. is concerned. As R.T.A. is not providing any service to the bus passenger, there is no deficiency of service from the part of R.T.A. Likewise the bus passenger is not paying any consideration to the R.T.A., the bus passenger is not a consumer as far as R.T.A. is concerned. Hence it is clear that the bus passenger is not a consumer and lacuna in fare stage fixation is not a deficiency of service from the part of the R.T.A.

On the basis of the above discussions with due respect to the learned author of above referred articles, I am constrained to state that the said article is written without considering the legal and factual aspects relevant to the issue and the said article unnecessarily subjected two well reasoned judgments of the Hon'ble High Court to unwarranted criticism.