"Democracy is Panting, When the Millennium Politics of

Electioneering Generates Horror"

(By V.P. Ramesan, Advocate, Ernakulam)

It was Lord Thomas Babington Macaulay, nay, by Act 39 of 1920, Chapter IX A containing "Election Offences" were incorporated in the Indian Penal Code (Act No. 45 of 1860) which now becomes ineffectual if we glance on the millennium criminal trend of human character. Lord Macaulay whose services in codifying the fundamental substantive laws in the domain of criminal jurisprudence for the British India which were recorded in the annals of our legal history still deserves high appreciation and admiration. Lord Macaulay who could peep into the mental miasma of a human being was absolutely right and correct in defining and carving out the dense dark areas of human criminal activity which still remains unaltered even by efflux of a lot of time. It was not a matter of assignment then for Lord Macaulay to analyse the "Election offences" since our land was not ripe geographically as well as politically to pile the pillars of a legal system embeded on parliamentary democracy. Even in 1920, the year in which Act 39 of 1920 was enacted, India as a body politic was not even in an embryo stage where elections to democratic forums was not a process of common man's involvement in a circumstance where the whole country was burning in the freedom struggle. Yet, the framers of Act 39 of 1920 could do the better considering all expected aspects and ill-activities that may happen in an election process. But it appears from the tendency and trend of the present day political activity connected with electioneering, Chapter IX A of the Penal Code is not enough and exhaustive to cope with the need of the hour and hence it requires some amendments to prevent a situation where the very basis of democratic process is to be allowed smoothly enabling the electorate to exercise their franchise freely without any fear of being put to criminal intimidation and assault.

The conduct of election, a very pious process as well as the pivot of a democracy, in a peaceful manner has become impossible in the present day sovereign republic of India. Coming to our State, the recent incidents of atrocities on the poor innocent public in the guise of political activity by warring political groups has created panic among the public at large, where the constitutional limbs are silent spectators even though the cold-blooded activities of the political parties have terrorised and abashed the people. This tendency emasculating the democratic process gives rise to a thinking as to why the provisions regarding "offences relating to election" contained in the Indian Penal Code be amended by inserting a section in Chapter IXA which may enable the criminals to be placed in the deserving dock. It is times harbinger to which we cannot close our eyes. Chapter IX A containing S.171A to 1711 in the Indian Penal Code deals with offences relating to election which definitely spells out nothing about any dastard criminal activity of political parties apart from definition and enumerating misconducts. The framers while debating on the aforesaid Chapter may not have contemplated the happening of a contingency of the kind mentioned above where the people are being confronted with the same persistently. The political executive despite to shackle these criminal elements is throwing its hands up driving the people in peril and pitiable plight. It has become more clear after every election that the conduct of the same peacefully is impossible without any effective legislation which should certainly aim at the venom-breeding political activity of political parties and its leadership. The political parties are sturdy enough to go to any extreme if they can procure a scape-goat. This is the dire fact that has to be borne in mind while moving for a legislation to curb the above evil.

As things goes at present, the culprits can be charge-sheeted for various offences enumerated under the Indian Penal Code, the conviction under which is solely dependent upon the evidence on record strictly in tune with the Indian Evidence Act. To avoid a situation where the culprit get an easy vent and walkover the above chapter may include a section which may categorically define that all atrocities either by way of clashes or conflicts between political parties that occur during the span commencing from the month immediately preceding the date of notification of election by the Election Commission of India to the month immediately succeeding the date of declaration of results be election offences and penal provisions for such offences may be analogous to the provisions prescribed for the offences of the very same nature enumerated in the Code. Such a section may also contain a proviso to the effect that if the culprit indulging in acts of violence causing damage to life and property has or had allegiance to a political party at the time of commission of the offence, the conviction of him shall directly affect the party to which he belongs or belonged and such party may also be penalised which may be by cancelling its registration and imposing other punishments such as imposition of fine which may be paid to the victims or to the kith and kin of victims by way of compensation and in case of non-payment of fine, the assets of the concerned political party may be sold and the proceeds may be applied for the above.

It may also contain necessary safeguards to prevent the protraction of procedure and also avoid cumbersome proceedings as are quite natural in the present day legal system. There cannot be any ambiguity with regard to the trial of the offence which shall be independent of the prevailing procedural laws applicable to offences for which necessary amendments in the Indian Evidence Act may also be introduced. If this be the consequence of the proposed insertion of a new section as suggested above, the political masters will certainly relegate and stop inciting their rank and file to resort to violence rendering the democracy a mockery now-a-days.

The Legislature has the duty to see that the system as laid down under the Constitution should sustain and continue as undisturbed for which the power of legislation invested with it must be exercised. The irony is that the political parties being so responsible to such a situation will certainly hesitate! Since, the parliamentary system of democracy is squarely under the control of a legislature dominated by political parties, there is little chance on their part to pilot a bill in the Parliament to insert a new section of the kind as suggested above to Chapter IXA of the Indian Penal Code with the above intent. Then, the only constitutional limb that can rush to the rescue of the people is the judiciary which can suo motu take up the matter and can give effect to a legislation embodying the above purport in exercise of its jurisdiction of interpretation by interpreting election offences contained in Chapter IX-A of the Indian Penal Code. Pertinent to note at this juncture is the callous way in which some of the political parties deal with membership register which may also be borne in mind when the idea highlighted above is moulded into a section in the code so as to avoid the attempt abortive.

There is sharp difference of opinion as to whether the Judiciary can step into the shoes of legislature when it hesitates. Justice Ashok A. Desai in the book on "Justice v. Justices" has emphasised the need for self-restraint by all the three constitutional limbs by confining their sphere of activities to the respective domains as enumerated and enshrined in the Constitution. Our exercise under the Constitution for half a century spells out the dire fact that the laxity and lapses on the part of the legislature with the staunch support of the political executive towards gnawing but soring problems of the people led to a situation where the Judiciary was constrained to wear the mantle of "Judicial Activism" which in effect tantamount to a legislation. Ironically, the people heave a sigh of relief on occasions of Judicial intervention. So, there is no point in speaking about separation of powers in the strict sense between constitutional limbs as experiences hitherto attaches no significance to it.

In "All India Judges' Association v. Union of India" reported in (1992) 1 SCC 119, the Hon'ble Supreme Court of India gave a judgment enhancing the retirement age of subordinate Judicial Officers and issued certain directions with regard to allied matters. Also, in Special Reference No.1 of 1998 reported in (1998) 7 SCC 739, the Apex Court held in crystal clear terms the opinion of the Chief Justice of India as "primacy" in the consultative process in respect of appointment and transfer of Judges. In view of the landmark Judgments given by the Apex Court in the above, it may not be inappropriate to have a look at the issue raised in this article regard having to its gravity and significance.

Epilogue:-

The Soothsayer in "Julius Caesar" murmur to Caesar: 'Beware the ides of March'. The Caesar stabbed by a group of conspirators headed by Brutus uttered: 'Et tu, Brute', while Cinna clamoured out "Liberty! freedom! Tyranny is dead".

We would be compelled to say then, "Liberty! freedom! Democracy is dead" if not otherwise immediately correct ourselves so as to uphold the best traditions of democracy having its cradle in Homer's Land and evolutioned to the Anglo-Saxon heritage of the British which we follow unscrupulously whether fair or foul. What is done cannot be undone. Before the deed is done, we have to prevent it with our hands in prayer saying 'hosanna' for the sake and survival of our democracy by repudiating and renouncing all evil tendencies hovering the body politic.

Section 24 Cr. P.C. v. Kerala Law Officers Rules, 1978

 – Need for a Paradigm Shift

(By Advocate T.P. Aboo, Majeri)

The Supreme Court of India in Habeeb Mohammed v. State of Hyderabad (AIR 1954 SC 51) has clearly stated the duties of Public Prosecutors.

There are a catina of Supreme Court and High Court cases highlighting the importance of the office of the Public Prosecutor. According to the Supreme Court, "the Public Prosecutor is its minister of justice."

It is a strange paradox that the law relating to appointment of law officers of Kerala today is a wonder land of anomalies, ambiguities, errors, omissions, irregularities and even illegalities. S.24 Cr. P.C. 1973 deals with the Public Prosecutors. As a result of to the change of Government in Kerala, the Advocate General, Additional Advocate General, Public Prosecutors of the High Court and District Courts have resigned and new persons have assumed office. The appointment of Public Prosecutors in some district head quarters are to be made. The purpose of this piece is to highlight the irregularities now prevailing in the appointments of Public Prosecutors in the District Centres.

S.24 of the Criminal Procedure 1973 deal with Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors. Sankaran Nair, J. in Aboobacker v. M. Ralna Singh (1992 (1) KLT 41) has dealt with the legal position regarding the appointment, qualification, condition of service of the Public Prosecutors. The Hon'ble Judge observed in Para 8 of the above decision "office of the Public Prosecutor is created by the Code of Criminal Procedure, and appointment is made only under the Code, plurality of source of authority to make an appointment is alien to the 'context'."

This observation was made as a reply to the argument advanced by the Counsel for the petitioner that the 3rd respondent in that case was appointed under Kerala Public Service Act. 1958.

The Kerala Public Service Act, 1958 was enacted by the Kerala Legislature "to regulate the recruitment and condition of service of persons appointed to public service and posts in connection with the affairs of the State of Kerala. S.2 of the above Act enables the State Governments to make rules (either perspectively or retrospectively) to regulate the requirement and condition of service of persons appointed to public service and posts in connection with the affairs of the State of Kerala". It is under this Section that "Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978" is framed by the State Government. This ominibus rules cover the appointment and condition of service of the Law Officers of the State of Kerala. As per 1992 (1) KLT 46; it is submitted that these rules cannot be framed under the Kerala Public Service Act as the Public Prosecutors are not "recruited to ihe Public Services and posts in connection with the affairs of the State of Kerala". Justice Sankaran Nair in no uncertain words put it, "it is not easy to think that the Public Prosecutor appointed under S.24(1) of the Code, is 'recruited' to 'public service or posts' in connection with the affairs of the State of Kerala. The Act, as noticed is designed to regulate 'recruitment and conditions of service' of persons appointed to Public Services. Indisputably, there is no recruitment under the Act, the appointment being under S.24(1) of the Code of Criminal Procedure. The appointment is not to a 'service or post' in the real sense. Perhaps, the position may be different under S.24(5). But it is unnecessary to consider the question further, as petitioner did not advance any argument on this aspect". (1992 (1) KLT page 46)

It is respectably submitted is that position in S.24(5) is also not different except in cases were Public Prosecutors are appointed from regular cadre of Prosecutors under S.25(6) of Cr. P.C. In the light of K.J. John v. State of Kerala, AIR 1990 SC 1902 such appointments are not taking place in Kerala today.

Now let us examine the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978. S.2 of the Rules defines "Government Law Officer" S.2 reads; 'Govt. Law Officer' means a person appointed by the Government to conduct the Government cases in any Court or Tribunal in the State or in the Supreme Court of India and includes;

i) Laison Officer in the High Court

ii) Pleader Appointed to Government work in a Munsiff Court

iii) Special Government Pleader

iv) Special Public Prosecutor

v) Government Pleader for arbitration proceedings and

vi) Standing Counsel for the State in the Supreme Court.

In this definition, 'Public Prosecutor' finds no place. In the definition it is stated that Law Officer means a person appointed by the Government to conduct Government cases in any Court or Tribunal in the State or in the Supreme Court and includes persons enumberated 1 to 6. Words 'means' and 'includes' are used in this definition. As per the rules of interpretation, the word 'means' is intended to be not exhaustive while the word 'includes' is intended to be exhaustive. But by any stretch of interpretation Public Prosecutor is deliberately excluded because Public Prosecutor is not a person appointed by the Government to conduct the Government cases in any Court. Public Prosecutor conducts the prosecution for the State, the term 'State' is wider than the term 'Government' the State goes on, while the Government changes. This can be clear from the judicial decisions under S.321 and other sections of Cr. P.C.

S.8 of the Part B of the Law Officers Rules deals with set up in District Court centres. S.7(l) reads, 'there shall be one District Government Pleader and Public Prosecutor at each district centre. S.8 deals with appointment of Government Law Officers at District Courts, Addl. District Courts etc. Anomolous position here is that nowhere in the rules it is stated that the Public Prosecutors are Law Officers. My submission is that only Law Officers and not Public Prosecutors can be appointed under S.8 of the Rules. There is a patent difference between S.3 and S.8 of the Rules. In S.3 it is stated that besides the Advocate General and the Addl. Advocate General there shall be the following categories of the Law Officers in the High Court namely;

i) Public Prosecutor

ii)               --

iii)              --

iv)              --

So S.3 includes the Public Prosecutor as Law Officer. But S.7 deliberately omits to say so. The intention of the Rule is exclusion of Public Prosecutor from the category of the Law Officer. Another area of conflict between Cr. P.C. and Law Officers Rule is in the combination of District Government Pleader and Public Prosecutor. S.7 of the rules mandates that there shall be one District Government Pleader and Public Prosecutor in each district centre. Though sub-section to S.7 gives power in necessary circumstances for separate appointments, it is not in practice in Kerala, though other States have separate Government Pleaders and Public Prosecutors. There is a change of circumstances in the District Courts now, from what it was when the rules were framed in 1958. Now the District and Sessions Judge tries cases involving atrocities to Schedule Caste and Scheduled Tribes, Abkari cases, apart from civil and criminal cases, appeals and revisions. There is 'docket flooding' in district centres. Therefore separation of the posts of Government Pleaders and Public Prosecutor is a must in the interest of administration of justice.

Clubbing of these two officers is against the spirit of S.24 Cr. P.C. as well. S.24 stipulate conditions for the appointment of public prosecutor in the High Court and District Court. The spirit of this Section is against plurality of offices. It prescribes various qualifications for various posts of Public Prosecutors. S.24(9) is a deeming provision by which the services of Pleaders, Asst. Public Prosecutor and the prosecuting officers whatever name called shall be deemed to be the period during which such person has been in practice for the purpose of appointment of Public Prosecutor in the District or appointment of Special Public Prosecutor. S.8(2) of the Rules stipulates that the District Collector shall while preparing the panel bear in mind that person included in the panel shall have at least seven years of practice as an Advocate. Thus S.82(1) does violence to S.24(9) Cr. P.C. A rule made by the Government, that too without legal authority cannot take away a right given by the Parliament of India in its wisdom to the Pleader and Assistant Public Prosecutor. The intention of the Parliament was to accommodate very senior, experienced persons who had spent long years as prosecutors. The points raised by me in this article can be summarised as follows:

1. Appointment of Public Prosecutor in the District centres can be only under S.24 Cr. P.C.

2. The enactment of Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978, is ultra vires of the Kerala Public Service Act, 1968, the appointments being not to a 'service or post' and it being not a 'recruitment'.

3. Even under definition of the Law Officer as per the rules, Public Prosecutor is excluded.

4. Office of the Public Prosecutor is created by Cr. P.C. an Act of Parliament. The right conferred under this Act cannot be taken away by any Act of the State or under any irregularly framed rules.

5. There is no State amendment as of today of S.24 Cr. P.C.

6. S.8(2) of the rules takes away the rights conferred by S.24(9) of the Cr. P.C.

The Late T.M. Mahalinga Iyer - A Tribute

(By V.R. Venkita Krishnan, Advocate, Cochin)

A distinguished lawyer and an intellectual of a rare order has left us forever. I have known the late Mr. T.M. Mahalinga Iyer for the last nearly 40 years ever since I came down to Kerala and I have not seen another brilliant lawyer with such scintillating eminence and versatility. As a Lawyer he was one, whose words always left a lasting impression on those who heard him and he was an intellectual with a rare sense of humility, a quality which is seldom present now-a-days. His arguments were unforgettable and piercing and the legal language that he displayed can be hardly excelled and seldom substituted. His utterances in court and outside displayed an aura of academic brilliance and he was a fair lawyer though a tough opponent. His capacity for analysing the finer aspects in law was almost a legend in this court and even his adversaries had a word of praise for his forensic eloquence. His knowledge of law would create and has always created an impression that he was a Professor with an academic bent and he can argue a case even when there are no facts to support a point. His depth of knowledge is unfathomable and he used to entertain the Judges of this Court for hours, without interruption, especiallywhen he argued a pure question of law. His analytical capacity was a marvel which will silence the opposite side.

He was a Musician on his own right and an uncompromising critic in the field of Carnatic Music because of his insistence on perfection. He has had his own concerts and even performed Harikathakalashepams and in fact he started his career with a minus budget. He was not born with a silver spoon; in fact he had no spoon at all. He built his career brick by brick and he moved forward, inch by inch by the sheer brilliance that he possessed and indefatigable industry that he pursued. I should say that he deserved many more things in life and he was not as lucky as he should have been. This is something for which there is no explanation in this world.

His knowledge in Sanskrit is amazingly diversified. He can quote chapter and verse from Sanskrit Literature and his quotations were handed down from generation to generation, since those quotes never found a place in any text book. The late Mahalinga Iyer was a man who could think on his legs and who can give a discourse on any subject with half an hour's notice. His dissertation on music was a rare treat for his audience and he arrested the attention of his listeners with his witty remarks and thought-provoking comments. Anyone who listened to him could not afford to forget him. His remarks and observations were deep and incisive and they were studded with sparkling diamonds.

He had a large family to support with 5 daughters and a son and he brought them up well in life beyond anybody's capacity. Having lost his wife early in life, he had to meet heavy-odds which he met with rare patience and resoluteness.

The present generation is not likely to know much of this multifaced personality. He was rare in may ways; he never made a display of his deep knowledge on various subjects including law and he did not suffer from intellectual arrogance but when you hear him, you will have every reason to say that he has a right to be aloof and arrogant but he was not and this quality marked him out as very different from others.

A person with variegated talents of an incredible diversity, with his deep knowledge, erudition and rare insight in human affairs he cannot be forgotten and will not be forgotten for generations to come. His humility was disarmingly singular and with all his knowledge, he never had any ego. A rare quality these days.

Forget him not.

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.

The 'Mundu' (Not Mundane) Controversy

(By S. Parameswaran, Advocate, Ernakulum)

I. The issue of the Principal of Vazhichal Immanuel College, prohibiting the male students of the institution from attending classes wearing mundu (dhoti) is not to be brushed under the carpet with a compromise formula hatched out and adopted by the College authorities and the Parent-Teachers Association. It raises an issue of much larger significance, than meets the eye and sends a potentially dangerous and wrong signal to Keralites.

II. Apart from being a cloth worn by Keraiites in particular and Indians, especially, South Indian, in general the mundu is symbolic of a culture of the Malayalee who is fast losing his ethnic identity and cultural individuality through a consumer culture fast invading and enveloping this State of nature's beauty and man's brilliance. Even the women folk in rural Kerala, and orthodox Hindu, Christian and Muslim woman in different parts of interior Kerala, not to speak of men, wear mundu, which may carry the appellation, mundu, set mundu, kylee (lungi) etc. While wearing dresses according to one's own likes and notions of fashion is permissible as long as this does not border on obscenity, many industrial concerns, business establishments and professions like the legal profession prescribe - and legitimately too - a dress code. But, to prohibit students from attending college wearing mundu and to insist on wearing of pants and trousers reminds one of the sordid incidents of denial of admission to the great painter Hussain to a place as he did not wear chappals and to eminent Judge Justice V.R Krishna Iyer by a Madras Club for wearing mundu. which are fossilised vestiges of a purblind social system of the Victorian era.

III. In this context, I am reminded of the famous words of the illustrious American Supreme Court Judge, Justice William Brennon in the famous Book Burning Case (Board of Education v. Pico (45) 1982 US 853). "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, if there are any circumstances which permit an exception they do not now occur to us". One may add that if there is any bedrock principle underlying our constitution, it is that State may not prohibit the expression of an idea simply because it finds the idea itself offensive or disagreeable to it. This must extend and apply to institutions as well, One's Philosophy, one's experience, one's exposure to the raw edges of human existence, one's religious training, one's attitude towards life and faith and their values and the normal standards one established and seeks to observe the avocation one should take up, the hobbies one would pursue etc. are all likely to influence and to colour one's thinking and conclusion about the dress one should wear.

IV. It is true that the Indian Constitution like its American counterpart, does not specifically mention any right of privacy; but it cannot be gainsaid that the Constitution recognises a right of personal privacy or a guarantee of certain areas or zones of privacy, the roots of the right being traceable to Part III of our Constitution dealing with fundamental rights. The right of privacy, with respect, is broad enough to encompass a man's decision whether to wear mundu or pants. The detriment imposed on them by denying the choice is too important to be ignored by the statutory authorities. The utter concern of the Governmental authorities on this issue - a Government proclaiming from roof tops of its "Manaveeyam Programme" is indeed regrettable. It is, of course, true that there is a saying that it should never formulate a rule of constitutional law broader than is required by the particular fact on which it is to be applied. It is equally that the freedom the Constitution provides us is not against deprivation either, but deprivation without the due process of law. At the same time, one should realise that the prohibition of mundu does not have a rational relation to a valid objection of the college, nor is arty compelling interest unsolved. By virtue of die University Statute and other forms of Government control, the Colleges in Kerala cannot claim total autonomy and private character.

V. An interesting case arose a few decades ago before the Andhra Pradesh High Court having a bearing on wearing a dress. A nun, who was expelled from the convent, was wearing a nun's religious habitat while teaching in a convent school in Andhra Pradesh. The Mother General issued a direction that she should attend the school wearing saree and blouses like a lady woman teacher. The nun questioned this by a Writ Petition before the Andhra Pradesh High Court contending that 'lie Mother General's instruction was illegal and unenforceable at law and that it was still open to her to wear the religious dress of a nun. A Division Bench of the Andhra Pradesh High Court comprising Chief Justice P. Chandra Reddy and Justice Narasimham held in Puthola Chinnamma v. The Regional Deputy Director of Public Instructions. Guntur and Ann (AIR 1964 AP 377) that under Art.126 of the Constitution of India the Roman Catholic Mission could establish and maintain the churches and manage their affairs in matters of religion. Any religious body has a right to establish and maintain instructions for religious and charitable purposes and manage their affairs. The term 'administer' in Art.30 is wide enough to take in enforcement of discipline in regard to dress and other matters by the educational institution. Thus, the direction that the expelled nun should not wear the 'religious habitat' of a nun, could not be questioned when undisputedly nuns have a distinctive dress known as the 'Religious habitat' which only nuns could wear. There is nothing in the chapter on fundamental rights embodied in Part in of the Constitution, whereunder such a right is expressed or could be inferred. The wearing of a nun's religious habitat by an expelled nun could not be a right which could be recognised under the Chapter of fundamental rights and much more so, when she ceased to be a nun. The Roman Catholic Mission, the Division Bench held, was a private body and the petition under Art.266 complaining of an infringement of a fundamental right does not lie against such a body. Though the decision rendered by the Andhra Pradesh High Court could be distinguished on facts from the mundu Episode in Kerala certain principles can be culled therefrom and held applicable to the present case.

VI. One acknowledges one's awareness of the sensitive and emotional nature of the muck that is raised about mundu the opposing views and of the deep and seemingly absolute views that the subject inspires. The prescription and prohibition by the principal cannot be lightly dismissed as the product of a Victorian social concern to streamline the students and regiment their ideas and outfits. Only the court will be able to resolve the issue by the constitutional measurement free of emotion and predilection and prejudices.