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).

Who is Competent to Contract?

(By Kauser Edappagath, Advocate, Kannur)

In a significant ruling with far reaching consequences, a single Bench of the High Court of Kerala in Sreedharan v. Chandrashekharan Nair (2001 (2) KLT 64) held that an agreement entered into by a co-tenant with another in respect of the possession of the lease hold premises without the consent of the landlord is void. It was further held that the co-tenants among themselves couldn't make any arrangement in respect of possession detrimental to the interest of the landlord and without his knowledge and consent. With due respect to the Hon'ble Judge who pronounced the judgment, I express my veritable doubt as to the correctness of the reasoning given by the Judge on the basis of which the verdict was delivered. To my mind, the judgment is based on wrong understanding of the related provisions of the Indian Contract Act and the Transfer of Property Act.

The crux of the dispute in the case centered on an agreement executed between the plaintiff and the first defendant, both of them are tenants under the second defendant, marked as Ext. Xl(b). Admittedly the landlady, the second defendant, was not a party to the said agreement. The Hon'ble Judge was of the opinion that the tenants are not the 'competent person' to contract and that the landlady was the 'competent person' to contract as provided in S.10 of the Indian Contract Act. Consequently the agreement executed by the tenants inter se without the juncture of the landlord was declared as void. According to me the Hon'ble Judge did not interpret the term 'competent to contract' embodied in S.10 in its correct perspective. S.10 sets out the various elements that may affect the validity of a contract and thus prevent it from legally binding or enforceable. As per S.10 one of the ingredients to make a contract valid is that person who is competent to contract should make it. S.10 has to be read along with S.11 which says that every person is competent to contract-who is of the age of majority according to the law to which he is subject, and who is sound mind, and is not disqualified from contracting by any law to which he is subject. In other words, this section is laying down the rules as to competency mentions three kinds of disqualification, namely those arising from 1) minority 2) insanity 3) statutory disqualification, like contracting with alien enemy. Here, in the instant case, the contracting parties were not suffering from any of those disqualifications. As such they were fully competent to contract. Void contracts are described under Ss.20, 25, 26, 27, 28, 29, 30 and 56 respectively due to mistake of fact, lack of consideration, restraint of marriage, restraint of trade, absolute restraint of judicial proceedings, uncertainty, wager and impossibility of performance. None of the above were also not attracted in the instant case.

The other sections relied on by the Hon'ble Judge to come to the conclusion that the Ext. X1 (b) agreement is void were Ss.42 and 44 of the Contract Act. The Sections 42 and 44 only stipulate that where there are joint promisors there is an implied contract amongst them, interse, to contribute equally towards the performance of the joint promise. That implied contract of contribution is independent of the contract as between the joint promisors and promisee. In such circumstances the promisee cannot in any way absolve a joint promissor from his liability to contribution so far as his other joint promissors are concerned who may have performed the promise. These sections only deal with the obligation to perform the discharge of joint promise and also contribution. It does not deal with the voidance of the contract.

As per S.108(j) of the Transfer of Property Act a lessee has got every right to transfer absolutely or by way of mortgage or sublease whole or part of his interest in the property. But only thing is that if the said transfer or sublease attracts the objectionable sublease as defined under S.11(4)(1) of the Kerala Buildings (Lease and Rent Control) Act, the lessor gets a cause of action to initiate legal proceedings for eviction against the lessee. Thus the plaintiff and the first defendant were well-justified under S.108(j) of the T.P. Act to enter into a contract transferring the interest of the former in favour of the latter.

The above judgment that wrongly interpreted Ss. 10,11,42 and 44 of the Indian Contract Act requires re-examination by a larger Bench.

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.

Cry Noble Profession

(By T.P. Kelu Nambiar, B.A., M.L.)

It is with acute anguish that I write this article, because I felt like hearing a disembodied voice telling me that all is not well with the legal profession. That sounded to be the voice of the Mahatma.

Compiling and editing "The Law and the Lawyers" by Mahatma Gandhi, Sri Sunit B. Kher, in his Introduction to the book, said: "The vocation of the lawyer is an honourable vocation requiring the highest standards of rectitude, integrity and uprightness, and its practice is in no way inconsistent with the pursuit of truth". This Sri. Kher said on the 2nd Day of October, 1962 (Gandhi Jayanthi Day). Know thou that Gandhiji practiced as a lawyer for over twenty years. It was at that time, says Sri. Kher, he acquired a true knowledge of legal practice and learnt the things that a junior barrister learns in a senior barrister's chamber and also gained confidence that he would not after all fail as a lawyer. The Mahatma, continued Sunit B. Kher, maintained the highest traditions of the profession and did not swerve by a hair's breadth from path of rectitude and integrity.... He never sold the truth to serve the interests of his clients.......He never forgot that he had a prior and perpetual retainer on behalf of truth and justice.

The Mahatma had said: "In my heart of hearts I always wished that I should win only if my client's case was right". It is said that during his professional work it was Gandhiji's habit never to conceal his ignorance from his clients or his colleagues; and wherever he felt himself at sea, he would advice his client to consult some other counsel, or to let him seek the assistance of a senior counsel. According to the American author James Cavanagh, Gandhi had kept the virtues of a lawyer, and only deepened them. Gandhiji proved that the indictment against the legal profession by Dean Swift, in Gulliver's Travels, was wrong. Sunit. B. Kher may again be quoted: "At a time when the legal and professional standards among both Judges and lawyers have fallen woefully, it behoves the legal fraternity to bestir itself and infuse a moral tone into the profession by pleading itself with renewed vigor and deep devotion to the ideals and the precepts of Gandhiji and presenting him to the profession as a model truly worthy of the closest emulation." The standards have woefully worsened now, and there is nobody to emulate Gandhiji. Very few lawyers even know that Gandhiji practised the profession of law; and precious few knows that the Mahatma was a practicing lawyer for over two decades. These are days when amnesty is extended for incompetency. The legal profession has become an endangered species.

The legal profession is now enjoying the 'silly' season. Everybody concerned with the system seems to hide behind his small achievement. This said, I cannot but point out that the profession is now under siege from novices. Every lawyer, at the entry into the profession itself, hopes to win a bundle. This sends out a perilous signal that the profession is not on the right path. The one who knows too little cares not for the one who knows much more.

Judicial calmness is conspicuously absent. Arguments/submissions are scaled down, forgetting that the Judge does not carry all the aces, though; and that by having been appointed Judge, he has not come a full circle. A struggle to save the profession's soul is imperative. Touting has started to haemorrhage the profession. There seems to be no continuity with the past. Nobody thinks of this day that age. For the better or the worse, the profession is depending upon information technology, not on intelligent initiative. For an advocate, reading and arguing are not alternatives. Sadly, there is no cause for total comfort. Don't you think I am a prophet of gloom or doom. I am here with a roster of the profession's woes and miseries. Overall, though, both the Bench and the Bar should try in tandem to save the judicature by guarding the Achilles' heel. In this profession, there should never be an attempt to separate the men from the boys as is done in sports, for the presence of seniors is a strong force.

Advocates are share-holders of the judicature. Therefore it surely bears emphasis that it is eminently reasonable that the Bench and the Bar should try to overcome the cumulative professional embarrassment. Lawyers should have a fixed-deposit in the profession. They should not fritter away a 'blank cheque' and return with a huge 'overdraft'.

It is important for today's Judges to know the history of the judiciary, as they are part of the history, not bigger than that. Respect is an aspect which is reciprocal. It cannot be commanded by the gate through which you enter, or the gait with which you stride. The Bar's affection is precious judicial asset for a Judge. A Judge is only the second incarnation of a lawyer with a conferred Constitutional status for a limited period, which brings honour, not immunity. Judges and lawyers should remain an undivided family, as Judges are selected from the Bar stables. Nobody is invariably infallible. "The Supreme Court is final not because it is infallible, but it is infallible because it is final", said the great jurist Sri. V.R. Krishna Iyer. The High Court is neither final nor infallible. It is good for both the Bar and the Bench to remember this; and both should avoid personalised functioning. And both should not indulge in disproportionate response and lofty claims.

I have only heavily quoted from my career and experiences. It is time enough to re-invent the legal profession. God save the profession. "Mahatma Gandhi Ki Jai".

Enlargement of Fundamental Rights?

(By Justice K.P. Radhakrishna Menon)

Constitution is the fundamental law of a country. It represents the political, economic, cultural and moral aspirations of the people. Political pundits therefore say that the Constitution shall highlight and give emphasis to systems, suitable to the genius of the people.

Based on this Constitutional theory, Mahatma Gandhi remarked: "By political independence I do not mean an imitation of the British House of Common, or the Soviet Rule of Russia, or the Facist Rule of Italy, or the Nazy Rule of Germany. They have systems suited to their genius. We must have ours suited to our systems". To Mahatmaji "the true source of rights is duty", and that "every Community shall be on a par with every other under the Swaraj Constitution." Maharshi Aurobindo was of the view that democracy to be successful in India shall be rooted in dharma i.e., duties, the forerunner of rights. In India, dharma is the main factor that shaped the character of an Indian. The development of a complete personality one can have, only if he is committed to the national ideals like "sacrifice and service' and 'civic duties' which undoubtedly form part of 'dharma'. Rights and duties thus are the two sides of the same coin. Malraux, a member of the De Gaulle Cabinet has obviously understood this cultural background of this nation, and that is why he told Pandit Nehru that "when India is free let the great Shankara guide India". Arnold Toynbee and Sir Julian Huxley have also expressed the same view.

Alas: we ignored these Gandhian ideas, our heritage which takes in its fold human values and human rights, Aurobindo's declaration and the views expressed by the political leaders of the west, and made a Constitution borrowing western political theories not suited to our

genius. As Swami Vivekananda said " in Europe, political ideas form the national unity" whereas "in Asia, religious ideas form the national unity". Swamiji accordingly said that "the unity in religion, therefore, is absolutely necessary as the first condition of the future of India". The western political theories ingrained in our Constitution gave a disastrous blow to the endouring principles referable to Gandhian ideals, namely, "Compassion of the strong towards the weak, and the suppression of immediate gratification for the more rewarding goals of the national glory and progress". (Vide Nani Palkhivala - Selected Writings) - while enacting Part III (Fundamental Rights), the framers of the Constitution failed to take into account the fundamental democratic principles suitable to Indian conditions, enunciated by the Mahatma, namely "the true source of rights is duty" and that "every community would be on a par with every other community". Consequently no enforceable duties corresponding to the fundamental rights, have been cast on the citizens. At this juncture I would like to make it clear Art.51A, (added by the Forty second Amendment in 1976), enumerating certain fundamental duties addressed to the citizens without any legal sanction, which perhaps may create a political Utopia, does not fill the lacuna.

Art.14 providing equality before law and equal protection of the law is a camouflage, when we consider its scope with reference to Arts.15(4) (added by the 1st amendment to over ride the judgment of the Supreme Court in 'Chambakam 'declaring that communal G.O. enabling the Government to reserve seats to backward classes on the basis of castes in educational institution) and Art.16(4) conferring additional fundamental rights on certain classes of the citizens and Art.28 and Art.30 conferring special fundamental rights on the minorities as defined therein. The cumulative effect of these provisions is the restoration of the notorious 'Divide and Rule' policy of the British Government. Not only that, these provisions cut at the very root of the national ideology of 'unity in diversity' and 'secularism'.

After writing guarantees of religious freedom into the Constitution there was no need to divide the people into religious minorities and religious majorities, by incorporating Arts.28 and 30. The makers of the Constitution should have taken into account the meaningful views of the framers of the American Constitution, regarding the desirability of the granting of special fundamental rights to the minorities, especially when they had borrowed very many political ideas from the American Constitution also. The views of the makers of the American Constitution is succinctly stated by Frankfurter, J. thus: "And so Jefferson and others who followed him wrote guarantees of religious freedom into our Constitution. Religious minority and religious majority were to be equal in the eyes of the political State (This is the view Gandhiji expressed). But Jefferson and others knew that minorities might disrupt the society. It never would have occurred to them to write into the Constitution the subordination of the general civil authority of the State to sectarian scruples". The Judge added! "that which to the majority may seem essential for the welfare of the State offend the conscience of the majority. But so long as no inroads are made upon the actual exercise of religion by minority, to deny the political power of the majority to enact laws concerned with the civil matters simply because they may offend the conscience of a minority really means that the consciences of a minority are more sacred and more enshrined in the Constitution than the conscience of the majority." These special and additional fundamental rights have retarded our attempts to sustain secularism in this country. They have completely disrupted the society which, prior to the Constitution had existed in peace and in harmony. Former Chief Justice of India, Justice K. Subba Rao has expressed his strong view on secularism. He says "Secularism" has come to mean atheism, instead of spiritual renaissance. Instead of religion deluging the lena diwht spritual ideas and unifying the nation and strengthening the moral fibers, it has helped to divide the country."

The reservation policy based on the fundamental rights envisaged under Arts.15(4) and 16(4) has exploded the salient objectives sought to be achieved by Art.46, namely to bring the weaker section of the people generally and the members of the Scheduled Castes and Scheduled Tribes into the main stream.

Undue recognition of the fundamental rights without any corresponding duties towards the society and the nation has resulted in an unimaginable growth of sectarianism, bigotry, indiscipline, license to do anything one likes to do and fanaticism, born enemies of democracy. Politicians took advantage of the situation and started be fooling the people. Caste and religion are being used by them as the ball in the political game of ping-pong. Policy of appeasement adopted by the administration to satisfy the demands of special groups, many a time have disabled the Government to enact laws concerning civil matters. Disobedience to enforceable law has become the order of the day. 'Unity in diversity' got metamorphised into 'diversity in Unity'. Maintenance of standards of decency dictated by a high moral sense has become impossible, Freedom has degenerated into license. There is no field of activity which is free from the misdeeds of such licensees. This situation is highlighted by the renowned jurist Palkhivala thus: "undisciplined trade unionism is as dangerous as undisciplined capitalism and undisciplined demagogy is as dangerous as undisciplined student power........It is a painful truth that in labour relations what is claimed by certain unions is not freedom but licence. When freedom degenerates into licence, people resort even to means prohibited by law in their endeavour to secure coveted objectives. In the year 1979, 43 million man days were lost in India on account of strikes and 43 million man day's lost to society's detriment, resulting in a fall in the gross national product and an increase in the inflation. The workers themselves have nothing to gain in the long run, by such irresponsible leadership". All on account of fundamental rights without corresponding duties.

Consequently supremacy of law has degenerated into anarchy, as lawlessmen spread all over the country are marauding unmolested. Rule of law concept has become famous in "myth and legend". Corruption is rampant. Accountability is nil. Criminals punished are entitled to the protection of fundamental rights, particularly the fundamental rights under Art.21. Law abiding citizens are few and far. Politics has become the asylum for many a criminal resulting in criminalisation of politics and politicisation of criminals. "To live with human dignity" enshrined in Art.21 cannot even be dreamt of by a very large section of the populace as they are living in penury. A welfare State alone can help the poor to enjoy the Right to live with human dignity, the Right to live in a clean and hygienic environment and to have free education.

History of independent India shows that Arts.15(4), 16(4), 28 and 30 have helped the politicians to re-establish the British theory of 'divide and rule' for the aggrandisement of themselves and their kith and kin. Even after 50 years of independence, we were not able to establish the welfare State envisaged under the Constitution. Until India becomes a welfare State in the true and literal sense of the word, the fundamental rights will remain a mirage to the poor. If you offer to a poor starving Indian (nearly 40% of the Indians belong to this category) a copy of Part III of the Constitution (after explaining to him the advantages of the various fundamental rights incorporated therein) and a morsel of food simultaneously, it goes without saying that he will grasp the food and not Part III, because Part III to him is not a life saver.

The fundamental rights have created a belief in the citizens who are rich and who wield power governmental or otherwise that they are superior to the nation. They therefore are fighting for their fundamental rights even at the cost of the progress of the nation. The damage done to the body politic on account of this, incalculable and unimaginable.

Under the circumstances I am of opinion that the National Law Commission shall first take steps to repair the damage done to the body politic by Part III. To accomplish this we shall have to amend the Constitution and add provisions in Part III, which are consistent with the genius of the country, as suggested by Mahatmaji. Enlargement of fundamental rights shall be put off until the nation becomes a welfare State in the legal and literal sense. It is all the more so because the amendments suggested are based on borrowed western theories not suited to our genius.

Jai Hind.