Quasi Repeal by Disuse

(By Jasmine Alex, Advocate, High Court of Kerala)

The term 'repeal' is quite familiar to the realm of law. The repealing of a statute is the revoking or disannulling it. A repeal signifies the abrogation of one statute by another1. In other words the word 'repeal' connotes obliteration of one statute by another from the statute book completely as if it had never been passed.2

Interestingly, the question whether an Act can be repealed just through obsolescence for years de hors a repealing Act, has often been posed to the jurisprudence. The Scottish law has recognised that an Act of Parliament can come to an end by non-user and has acquired momentum as a legal principle named 'doctrine of desuetude3 In result, the statutes, which have been persistently disregarded, will have no effect. The rule concerning desuetude is that if a Scots Act goes into disuse by a posterior contrary custom it effects in repealing the Act. The power of posterior contrary custom to derogate from prior statutes and to acquire privileges and rights contrary to the statutes is not confined to the statutes concerning private rights, but is applicable to those affecting public policy also.

The law in England, but, has not accepted any doctrine like desuetude4. It is true that there was a theory, which resembles the doctrine of desuetude, that if a statute had been in existence for any considerable period without ever having been put into operation it might be treated as null. Though it was accepted in a number of cases up to the end of eighteenth century, it has now been wholly discarded. The opinion of English Judges with regard to the doctrine of desuetude is evident in the following verdict per Scrutton L.J.,

"The doctrine that, because a certain number of people do not like an Act and because a good many people disobey it, the Act is therefore "obsolescent" and no one need pay any attention to it, is a very dangerous proposition to hold in any constitutional country. So long as an Act i-s on the statute book, the way to get rid of it is to repeal or alter it in Parliament, not for subordinate bodies, who are bound to obey the law, to take upon themselves to disobey an Act of Parliament”5

Indian Law

The doctrine of desuetude was rejected by the Supreme Court of India in State of U.P. v. Hindustan Aluminium Corporation6. Shinghal, J. held:

"It has to be appreciated that the power to legislate is both positive in the sense of making law and negative in the sense of repealing a law or making it inoperative. In either case, it is power of the Legislature, and should lie where it belongs. Any other view will be hazardous and may well be said to be an encroachment on the legislative field. In an extreme and clear case, no doubt, an antiquated law may be said to have become obsolete - the more so if it is a penal law and has become incapable of user by a drastic change in the circumstances. But the Judge of the change should be the Legislature, and the Courts are not expected to undertake that duty unless that becomes unavoidable and the circumstances are so apparent as to lead to one and only one conclusion”7

The same view was reiterated by a three Judge Bench of the Supreme Court in State of Maharashtra v. Narayan8

But recently, the Apex Judiciary has tried to implant the Scottish doctrine into the Indian soil through its decision in Municipal Corporation for City of Pune v. Bharat Forge Col. Ltd9 In this case a notification issued in 1881 under the Cantonments Act, 1880 imposing octroi in Pune Cantonment was superseded by two notifications in 1918. The 1918 notifications had impliedly repealed the 1881 notification. The 1918 notification was not actually implemented at any time; at the same time octroi continued to be recovered under the notification of 1881 in accordance with the octroi rules enforced from time to time. It was held that the 1918 notification stood quasi repealed and continued recovery of octroi under the 1881 notification was illegal.

In Bharat Forge Col. Ltd., the application of the principle of quasi repeal by desuetude was discussed in detail. Referring Francis Bennion's Statutory Interpretation and Craies' Statute Law, it was pointed out that desuetude is a process by which an Act of Parliament may lose its force without express repeal. It does not, however, consist merely of disuse; there must also be a contrary practice, which must be of some duration and general application. Adopting the views of Lord Mackay in Brown v. Magistrate of Edinburgh10, Hansaria, J. observed:

"Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the dead letter. We would think it would advance the cause of Justice to accept the application of doctrine of desuetude in our country also. Our soil is ready to accept this principle: indeed there is a need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Art. 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become dead letter. A new path is, therefore, required to be laid and trodden”11

The doctrine was again referred in Cantonment Board, Mhow v. M.P. Road Transport Corporation”12. Though the principle was not applied here, the necessary conditions for the application of the doctrine had been laid down. Accordingly, the requisite were "to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved"13

The doctrine was again brought to the attention of the Supreme Court in Abdul Hai Khan v. Subul Chandra Chose14. Though the scope of the doctrine was contended in the original as well as appellate jurisdictions, in this civil appeal, the learned Judge of the Apex Court ignored the issue conveniently. This is a civil appeal in connection with a nationalization scheme published in 1963 and last modified in 1980 in West Bengal under Ss. 68-C and 68-D of the Motor Vehicles Act, 1939. The scheme permitted existing private operators to continue to operate on the routes for which they had permits. The appellants thus benefited, felt aggrieved when RTA, Calcutta later issued permits to certain other private operators on routes overlapping those same nationalised routes effectively ignoring the provisions of the 1963 scheme. Challenging the decision of RTA, the appellants had approached the High Court. A Single Bench of the Calcutta High Court dismissed their Writ Petitions; the Division Bench also did not entertain the challenge, on the ground that the scheme was contrary to the provisions of S.68-C of Motor Vehicles Act as amended in 1988, which in fact had not been in operation for years and directed to follow the law strictly.

The contentions put forth by the learned counsels regarding the applicability of the doctrine of desuetude deserve special attention on the following premises.

(i) The 1963 scheme as last modified in 1980, was in practice even after the amendment of Motor Vehicles Act in 1988.

(ii) The validity of the observance of a rule contrary to the statutory provision might have footing upon the doctrine of disuse, especially in view of the dictum in Bharat Forge Col. Ltd. which was laid down by a three Judge Bench.

Concluding Notes.

The confusion about the applicability of the principle lies with the consequences of repeal of a statute. The Supreme Court of India has noted in a number of cases that except as to the transactions past and closed, a statute after its repeal is completely obliterated as if it had never been enacted; all inchoate rights are being destroyed and no cause of action may have arisen under the repealed statute15. Again according to the common law the repeal of a statute would revive the earlier law ab initio16

(In U.K. the Common Law is now altered by S. 11(1) of the Interpretation Act, 1889 that where an Act passed after 1850 repeals a repealing enactment, it shall not be construed as reviving any enactment previously repealed, unless words are added reviving that enactment17. In India also the Common Law Rule has been abrogated by the introduction of similar provisions in Ss. 6(a) and 7 of the General Clauses Act, 1897)

When a statute is repealed not by a repealing Act, but just due to non-user, can the above law regarding ordinary repeal be applied and the legal system uphold the view that the law as intended by the Legislature cannot stand valid? If 'desuetude' is applied, how is the rights and obligations created under an Act concerned determined? As an illustration, can it be held that the so-called 'Dowry Prohibition Act' is quasi repealed for the reason that dowry has never been prohibited in actual practice and the contrary practice is still continuing?!! As mentioned earlier, whether the application of the doctrine will bring into effect all the consequences of an ordinary repeal by a repealing statute? The adoption of a Scottish doctrine has thus generated a conundrum for which the apex judiciary, let us hope, will come out with a solution in an appropriate case in the near future. Still, the guiding rule shall be the supremacy of the Constitution by which the law making power is primarily entrusted with the Legislature.

________________________________________________________________________

Foot Note:

1. P. RamanathaAiyar,TheLaw Lexicon, ReprintEdition, 1993,Wadhwa&Co.,Nagpur,p. 1110.

2. VenkataRamaiya's Law Lexicon, 2nd Edition, 1991 Reprint, Law Publishers India Pvt. Ltd.,p.2074.

3. Supran.l. p. 327; JusticeG.P. Singh, Principles of Statutory Interpretation, 7thEdition, Reprint 1999, Wadhwa & Co., Nagpur, p. 503.

4. P. St.J.Langan, Maxwell on The Interpretation of Statutes, 12thEdition, 1976,N.M.Tripathi Pvt. Ltd., p. 16; C.K. Allen, Law In The Making, 7th Edition, 1st Indian Reprint, 1997, Universal Law Publishing Co. Pvt. Ltd.

5. R. v. London County Council, (1931)2K.B.215.

6. AIR 1979SC1459.

7. Id. p. 1473.

8. AIR1983 SC 46.

9. AIR 1996 SC 2856.

10.1931 Scots Law Times 456

11. Supra n. 9., p. 2862.

12. AIR 1997 SC 2013.

13. Id., p. 2020.

14. (2002) 4 SCC519

15. See, for example, Keshuvan v. Bombay. AIR 1951 SC 128; State ofRajastan v. Mangilal Pindwal, AIR 1996 SC 2181.

16. P.St. Langan, Maxwell on the Interpretation of Statutes, 12th Edition, 1976, N.M.Tripathy Pvt. Ltd., pp. 19,20.

17. Now Sections 15 and 16 (l)(a) of the Interpretation Act, 1978.

Medical Discretion Is Bound By Legal Limits

(By M.J. Kuruvilla, Advocate, Cochin)

Discretion is a difficult legal concept. This concept is rarely understood. But it is very often misunderstood. According to dictionaries discretion is the power and the authority to decide or choose from among many. Then what is medical discretion? It is the power and the authority of the doctor to decide or choose the modality of treatment. In theory the patient takes the decision, and has the final say in the management of his treatment. But in practice this is not so; nor is this is always possible. In many situations the patient is incompetent and in others ignorant as regards the implications of treatment. Some times the patient is handicapped in other ways that he can not contribute substantially to the decision making process. Thus it is often left to the treating doctor to make the therapeutic decision on behalf of the patient and in his best interest.

Art. I9(1)(g) of the Constitution declares that all citizens have the right to practice any profession. But S. (6) of the same article puts certain restrictions. It empowers the State to impose reasonable restrictions on the exercise of this right in the interest of the general public. In other words, the State cannot be prevented from making any law relating to the professional or technical qualifications required for practicing the profession. Thus our Constitution has struck a sensible balance between individual liberty and social control.

The Constitution ensures the proper practice of the learned professions like medicines and law by spelling out the required qualifications and by separate statutes envisages the effective role for the professional body concerned for ensuring maintenance of proper standards. It is the medical council that prescribes and ensures standards in the practice of medical profession. In deed the council is guided not only by the general laws but also the ethics involved in the profession over a long time. When a person is found to have acquired the necessary qualifications and the experience to practice medicine the council grants him the license to practice. This gives him tremendous powers and also the discretion in taking therapeutic decisions. The authority is not to decide mechanically or arbitrarily but fairly and bonafide.

An analogy between judicial discretion and medical discretion would be appropriate. If there is only one solution to a problem, the question of discretion does not arise. When there are two solutions, one perfectly legal and the other not so legal, the Judge has to adopt the legal solution. In therapy too, if one method is sure to yield a positive result and the other doubtful, the safer method has to be adopted. The need for discretion does not arise here either. But when there are two solutions with marginal difference the choice becomes a problem. Viewed this way there is no difference between judicial discretion and medical discretion. Go through each aspect of the problem and weigh each factor before coming to the conclusion. In fact there can be only one solution that is the best to any problem. There may be several others that are near the best but not the best. True, opinion can vary as to what is best, but still there is only one that is best. The degree of discretion does not depend on the number of options to choose from but depends on the degree of liberty to choose from those options.

The choice of the clinical procedure is left to the doctor. Lord Denning has expressed the inability of the judiciary to sit in judgment over the appropriateness or otherwise of the doctors decision. No doubt this judgment is not in tune with the current trends and the present level of information. Today, one cannot reconcile with and much less subscribe to this idea. Today' the doctors have several choices in the modalities of treatment and when a decision in favour of a particular solution is taken, the reasons for that choice are to be made known. If the doctor does not adopt the method which is apparently the best approach he has to give the reasons why the preference. There may be compelling circumstances and cogent reasons why he had deviated. But he has to put them up boldly and convincingly.

However, the cardinal difference between the medical discretion and judicial discretion must be clear. The doctor is always involved in the conflict as a party to the dispute if such arises. The Judge is independent. The exception may be the contempt of Court cases. Here also if we stretch our imagination the identity of the Judge and that of his office viz. the Court can be made separate and distinct. Thus the doctor's discretion is not to be treated on an equal footing with judicial discretion. However when we appreciate that discretion is the right to do the right, all the arguments so far build up just crumbles.

Unfortunately there are no definite guidelines on many questions that the doctors have to decide on the corridors of the hospitals. They are the occasions to use discretion. The question concerning life support, its institution or withholding, or after instituting its withdrawal crops up every now and then in a doctors professional life. The doctors are taught to preserve life by their profession. But this obligation is not a constitutional one in as much as there is no law for preservation of life except by implication and construction. No duty is cast directly on any one including the doctor to preserve life. Yet the doctor is confronted with life and death questions quite often. His decisions will have legal implications. The law itself has not been capable of maintaining certainty on several issues that the doctors are asked to settle or decide. This becomes clear when one examines law's tryst with the definition of death. Historically death was timed as that point when respiration stopped. The terms expire and the expression breathes one's last came to mean death. Artificial respiration and resuscitation shattered this concept. Similar is the case with cessation of heartbeat and disappearance of pulse. Cessation of cardiac and respiratory activity together also does not always mark the end point.

Brain death is the latest. Tests on which brain death is established have been questioned. In the case of the foetuses and the neonates these tests are not reliable. Suffice to say that the resilence of the foetal brain is such that it can survive sometimes even after it has answered the tests of brain death. The author does not want to elaborate. It will stir a hornet's nest. These aspects make the doctor's job difficult. In case of the critically ill the question of timing the death is vital. So too, the need for use of life support. The ethical responsibility and the social affordability to such care are crucial. The role of the doctor is that of the gatekeeper, who does not have clear instructions from the master. He allows entry to some. They will have access to life support. Others will be turned out. There are no statutory laws to be obeyed. Indecision kills and so does undue delay. Neither is there time for a court order or a judicial advice. When it reaches the court the matter will be infructuous. All these are ultimately left to the doctor's discretion, and his decision has to be instantaneous.

A more common challenge is when the doctor has to choose between palliative care and euthanasia. Palliative care is to reduce the pain and ameliorate the suffering. Some of the measures provided for palliation, result in early death. This has however to be differentiated from euthanasia. In the latter the doctor puts the patient to immediate death. In the former the doctor's aim is to make the patient free from pain though he is aware that the process of palliative care may augment the inevitable. One may argue that the cause of death in that case is the disease process itself and not the care that has been provided. The author is of the view that margin between palliative care and euthanasia is very thin, shaggy and blurred and often does not exist.

In complicated cases the opinion of the doctor and his advice will clinch the patient's decision. The concept of informed consent and informed decision making can not be adhered to in medical practice. In fact for the patient to be fully informed will need his being taught a good bit of medicine. It is clear that very often there is no informed consent and the patients are influenced by the doctor's advice. There is yet another problem. Could these facts amount to undue influence and annul the contract between the doctor and the patient?

Doctors are dragged into other sensitive issues. Every competent adult has the right to decide for himself or herself what treatment he or she should have and has an equal right to refuse such treatment. This is an area wherein the society's concern for preserving every individual's life has to be subordinated to the individual's will.

The right of the pregnant mother vis-a-vis that of the foetus is complex. While therapeutic abortion is accepted in India it is not so the world over. In old English law the child attains legal status only after the umbilical cord is severed. Times have changed. There has been a case where a Caesarian section was ordered on a terminally ill mother to save "enfont en Ventura Sa mere" the infant in the womb of the mother, against the interest of the mother. This is recognition of the foetus as a legal person and its legal right to exist. It casts many a doubt. The society and the judiciary seem to have leaned towards the ones with brighter and better chance in life against the interest of the meek and the weak. The old question 'should the baby survive or the grand father die'? Has the doctor or the Judge has any right to impose such an assault on one who has not committed any offence? This question requires contemplation.

The management of postpartum haemorrhage (that is the mother bleeding after the baby is born) in a primipara who has lost the baby is a common problem. If conservative measures fail to stop the bleeding hysterectomy (removal of the womb) was the standard practice. In 1984 when the author was surgeon in active practice and working in general hospital the Gynecologist there sought his help. Primy having lost the baby had uncontrolled bleeding. Bilateral ligation of the internal iliac arteries, (that is the vessel supplying blood to the uterus) saved the patient and her uterus. Today we have still better therapy. Embolise these vessels. Hysterectomy as a first-decree measure is not acceptable in these situations. One who can not ligature the internal iliac arteries in an emergency has no right to practice obstetrics these days. In competence in the practice of medicine amounts to medical negligence.

The award of compensation is not punishment. It is to make good the loss sustained by a party as a result of the activity of another. When compensation is ordered on wrong grounds, it amounts to unjust enrichment. This cannot be maintained in law and should not be permitted.

The doctor patient relationship is not just contractual. It is fiduciary. Hence the grave responsibility to safe guard the patient's interest is cast on the doctor. Though the consent is given at the time of surgery, during the course of surgery the doctor lands up in situations that neither the doctor nor the patient anticipates. The doctor is virtually alone, in his decision making and in the procedure he undertakes. Fixing responsibility for such an action, the question of guilty mind is essential. This is a major factor in crimes. But the doctor faces the courts neither for crimes nor as a criminal. He appears as a tort feasor. In tort the intention is not relevant. The question is whether damage has been caused, and whether it was within the range of foresee-ability and whether there existed a duty to care.

Thus an enormous degree of discretion is bestowed upon the medical profession. It is for the doctor to use it discretely with benevolence in the ultimate interest of the patient at hand and the society at large. However its misuse will not be excused. The doctor may have to account for and pay for it if he retracts from his noble role.

The Judge while he imposes legal limits on medical discretion he should act blindfolded. But that should be for the limited purpose of not seeing those involved in the litigation. When the Judge looks at the evidence he should remove his blind folding lest he may act like one of the blind men who went to see the elephant. The author would even suggest that the Judge should possess an eagle eye when he looks at the evidence.

NDPS (Amendment) Act, 2001 - Some Reflections

(By T.D. Robin & K.S. Sabitha, Advocates, Ernakulam)

The Narcotic Drugs and Psychotropic Substances Act was enacted in 1985. The need felt was the inefficacy of effectively controlling the drug abuse. On its enactment it replaced three previous Acts viz. (3) The Opium Act, 1957 (Act No. 13 of 1957), The Opium Act, 1878 (Act No. 1 of 1878) and Dangerous Drugs Act, 1930 (Act No. 2 of 1930) vide repeal through S. 82 of the NDPS Act, 1985.

Stringent punishments like minimum sentence of0 years R J. and fine of Rs.'one lakh which could extend upto sentence of R. 1 for 20 years and fine of Rs. 2 lakhs as well as minimum sentence of 15 years; fine of Rs. 1.5 lakhs which could extend upto 30 years R.I. and 3 lakhs for previous offenders were some of the salient features.

The Act was amended in 1998 (Act 2 of 1999) which implemented harsher punishments like death penalties for certain offences, stringent bail conditions and ban on suspension, remission and commutation of sentences.

The recent Amendment Act, NDPS Amendment Act, 2001 (9 of 2001) came into force on 2.10.2001. In the statement of Objects and Reasons of the Act it has been mentioned that while the Act envisages severe punishment for drug traffickers, it envisages reformative approach towards addicts. It continues to say that therefore it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishments.

In fact, the Act has unbelievingly been lenient in the matter of punishments and stringency of bail conditions. The Amended Act (has to be read along with the Principal Act, 1988) gives great relief to the addicts most of whom are youngsters who have knowingly or unknowingly fell in the trap of real traffickers in narcotic and psychotropic substances.

The salient features of the Amended Act can, in a nut shell, be put as follows:

1. Quantities- The amended act has classified the quantum of the drugs into three quantities namely small quantity, commercial quantity and the intermediate quantity. The schedule attached to the Act prescribes the limits. Intermediate quantity is that which exceeds the small quantity and is lesser than the commercial quantity.

2. Burden of Proof and Punishment for Small Quantity:-Under S. 27 of the principal Act, the punishment for illegal possession in small quantity for personal consumption of any Narcotic Drug or Psychotropic Substance was imprisonment for 1 year or with fine, imprisonment with 6 months, or with fine or with both, depending upon the nature of the substance. By Notification dated 14.11.85, small quantity of 5 Narcotic Drugs were published and power was vested with the Chief Medical Authority of each District to prescribe, the small quantity of Psychotropic Substances which were not notified. Even though an elaborate schedule specifying the small quantity had been notified as early as in 1996, unfortunately, the notification had come to the notice of legal circle much later. Moreover, the notification was issued really for the purpose of invoking the benefits of S. 27 of the Principal Act. Even though in the case of general exceptions in the Indian Penal Code and other statutes, burden of proof was that of preponderance of probability, under the Principal Act, the burden of proof under S. 27 was not that of preponderance of probability, but one beyond the shadow of reasonable doubt. In otherwords, if one wanted to avail the benefit of S. 27 of the Principle Act, apart from rebutting the presumption under S. 54 one had to prove it beyond reasonable doubt. This particular position had the inherent danger of first admitting the possession and then proving that it was for self consumption. True, if the venture was successful one could escape with either 6 months or 1 year imprisonment or with fine or with both according to the nature of the substance. But if it failed, tine had no other remedy but to undergo a sentence of minimum R.I. for 10 years and pay minimum fine of Rs. 1 lakh which may extend to R.I. for 20 years and 2 lakhs fine. This was the juncture where the trial lawyer literally felt his nerves breaking in taking up a decision; whether to plead possession for self consumption or go for a trial of total denial.

The Amended Act has now bestowed the trial lawyer with great relief in the above aspect. According to the Amended Act, whatever be the substance, if it comes under small quantity, the maximum sentence that can be awarded is only 6 months or with fine or both. The accused need not prove at all that it was for his personal consumption.

Likewise, the punishment for intermediate quantity has been reduced to one of R.I. which may extend up to 10 years and with fine.

The sword of Democles now hangs only above the head of Ss. 19,24,27A and commercial quantity wherein the punishment is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to 20 years and shall also be punishable with fine which shall not be less than 1 lakh, but which may extend to 2 lakhs.

To put it simply, if an accused is booked for possessing 1 kg. of ganja (small quantity) he can be punished with R.I. for a term which may extend to 6 months or with fine or with both; if it is exceeds 1 kg. and is short of 20 kg. (which is the commercial quantity) with rigorous imprisonment which may extend upto 10 years and with fine and if it is 20 kg. or more, with R.I. for a term which shall not be less than 10 years, but which may extend to 20 years and shall also be liable for fine which shall not be less than one lakh but which may extend upto 2 lakhs rupees.

3. Substantial Change in the case of Bail:Before the amended Act, S. 37 of the Principal Act regulated the bail conditions. One of the insurmountable conditions for release on bail was that the Court should be satisfied that there were reasonable grounds to believe that the accused was not guilty of the offence alleged against him/her. Blatant violations of S. 50 or 42 of the Principal Act were the only loop holes.

Another peculiarity of the section was the prominence of the prosecutor over the Judge in exercising the discretion of granting bail. The wording of S. 37 'The Public Prosecutor should be given notice and if he opposes' manifestly meant that if the Prosecutor refrained from opposing grant of bail, the Judge had to grant bail. In case of opposition from the Public Prosecutor, the Court had no other option but to resort to the clause of belief that the accused was not guilty and that there was no likelihood of his repeating the offence if bail was to be granted.

The only other remedy was the right under the S. 167(2) of the CRPC, which vigilant prosecuting agencies almost always shut out by filing the charge sheets within the prescribed time limit.

The Amendment Act has deleted from S. 37, the words 'a term of imprisonment for 5 years or more' under the Principal Act and substituted the words, figures, and letters "offences under S. 19, or S. 24, or S. 27A and also for offences involving commercial quantity". The substitution categorically excludes Ss. 15, 16, 17, 18, 20, 21, 22 & 23 from the grip of the stringent conditions of S. 37 of the Act in as much as they don't come under the commercial quantity.

The offences punishable under Ss. 15,16,17,18,20,21,22 & 23 of the amended Act whether bailable or not.

The heading of S. 37 of the Principal Act 'offences to be cognizable and non bailable' which appears as such in the Amended Act has created some confusion.

To come to a conclusion regarding the confusion with respect to the head note 'non bailable' which appears in the principal Act and stand as such in the amended Act, recourse has to be taken to various Sections of the amended Act as well as interpretation of statutes.

Decisions are a plenty that head notes by themselves do not mean much in certain circumstances, where the wording of the sections covered by the head notes are clear and unambiguous. A systematic approach to various sections lying scattered in the amendment Act will be sufficient to clear the doubts in this regard.

S. 36A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,

(a) All offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more special Courts than one for such area, by such one of them as may be specified in this behalf by the Government.

(b) So also S. 36A(5)of the amendment Act reads as follows:

Notwithstanding anything contained in the Code of Criminal Procedure. 1973. The offences punishable under this Act with imprisonment for a term of less than three years may be tried summarily:

(c) In the Notes on clauses, clause 15 reads as follows:

This clause provides for trial of offenders who are charged with offences punishable with sentence upto three years by the Court of Magistrate and for Summary trial of such offenders. This clause also provides for remand of accused charged with serious offences upto one year without filing challan/complaint.

Now that S. 37 has deleted the words "offences punishable with imprisonment of 5 years or more and has mentioned only Ss. 19, 24, 27A and commercial quantity, grant of bail for offences coming under Ss. 15,16,17,18,20,21,22,23,26& 27 will be controlled by the Code of Criminal Procedure (excluding commercial quantity). NDPS Act, being an other law than the Indian Penal Code, recource will have to be taken to the second Schedule of Cr. P.C. which deals with classification of offences against other laws. When viewed in that angle, offences mentioned above which are punishable with sentence less than 3 years should be construed as bailable and those which exceed as non bailable. It is needless to say that the provisions regarding grant of bail enumerated under the second Schedule of the Criminal Procedure Code, squarely applies to the above sections.

Applicability of the Act and an Anomaly

S. 41 of the Amendment Act describes the applicability of the Act. It reads as follows:-

Notwithstanding anything contained in sub-s. (2) of S. 1 all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offences:

Provided that nothing in this section shall apply to cases pending on appeal. There is no ambiguity in the wordings that from 2.10.2001 onwards the principal Act as amended by the amendment Act of 2002 will be applicable to all cases pending before the court or under investigation at the time of commencement of the Amendment Act.

The only anomaly seems to be the proviso to S. 41 which says that nothing in that section shall apply to cases pending on appeal. Even though the wording are clear and unambiguous and the intention of the Legislature seems to be beyond doubt, the proviso seems to be unconstitutional as far as it discriminates an accused (appellant) punished for possessing small quantity and undergoing sentence for a minimum period of 10 years and minimum fine of 1 lakh for failure to prove possession for personal consumption with an accused who possesses small quantity and escapes with maximum sentence of 6 months with or without fine;

The proviso is arbitrary, unreasonable and highly discriminatory. No reasonable classification can be spelt out from any of the sections either in the Principal Act or amended Act.

Procedure in cases triable for offences punishable with less than 3 years.

When S. 36A specifically states that all offences under this Act which are punishable with imprisonment for a term of more than 3 years shall be triable only by the special court constituted........... It can be safely assumed that all offences triable upto 3 years shall be tried by Magistrate Courts. Reading S. 36(5) along with 36(A) will clearly show that summary trial of such offences are also allowed.

The question then to be considered is how Cr. P.C. deals with the problem. S. 228 of the Cr. P.C. it seems, throws ample light on this aspect. S. 228 deals with cases where sessions Judge feals that the trial before him is not exclusively triable by court of Sessions. What is prescribed in such cases in that the court may frame a charge against the accused and may transfer the case to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate Court shall try the offences in accordance with the procedure for trial of warrant cases instituted upon police report. For the time being, this seems to be the only procedure that can be adopted in cases involving small quantity.

This procedure when adopted in Kerala is sure to burden the C.J.M. Courts with cases of small quantity in that Session Division. Here it has to be noted that in Karnataka and Kolkatta amendment has been effected in S. 228 Cr. P.C. by amending the wording of the Section "to the Chief Judicial Magistrate Court or any other competent Court". It would therefore be much helpful if such an amendment is carried out in Kerala too. Let us hope that the appropriate authorities will take the necessary steps for amendment of this section at the earliest.

Suspension of sentence by trial courts and appellate courts

S. 32A of the Principal Act had imposed a complete ban on the suspension, remission and commutation of sentences in cases wherein accused were convicted under the NDPS Act (Excepting conviction under S. 27 of the Principal Act). The Hon'ble Supreme Court had in a recent decision (before the amendment) considered the constitutional validity and inter alia had declared that an accused convicted for other offences than S. 27 would be entitled to suspension of sentence if at the appellate stage, he could convince the court that the conditions prescribed in S. 37 of the principal Act still existed.

Now that S. 37 has left out Ss. 15,16,17,18,20,21,22 and 23 from its ambit, S.389 of the Criminal Procedure Code would have to be adhered to in the matter of suspension of sentence. The observation of the Hon'ble Supreme Court regarding the suspension of sentence also will have to be treated and no more applicable after the amendment. Therefore, it has to be assumed that the suspension of sentence regarding the above offences will be controlled by the provisions ofS.389 Cr. P.C.

Trial by which Court and committal if necessary

In the light of S. 36A, only special courts and designated courts can be deemed to be Courts of original jurisdiction for trial of NDPS cases for which punishment for more than three years are prescribed. Where it is only upto 3 years, the Chief Judicial Magistrate alone will be competent to try the offence ie., regarding pending cases and investigation. Where it exceeds 3 years, the FIR can be directly filed before the special court since it has original jurisdiction by virtue of S. 36(A). If by mistake or ignorance of the investigating agency, FIR and annexed documents and MO's of cases wherein only offences triable upto 3 years are filed before the special Court after the commencement of the Amendment Act they will have to be returned back to the Magistrate Court having jurisdiction to try the case and in the cases involving offences punishable with more than 3 years, if the documents are filed before the Magistrate Courts, these Courts will have to forward it to the special courts.

Apart from the proviso to S. 41 of the Amendment Act which denies the application of the benefit of S. 41 to cases pending on appeal, the whole amendment Act is a welcome change. In the light of the fact that there had not been any decrease in the commission of crimes of NDPS cases inspire of stringent punishments and bail conditions being imposed by the Principal Act, one is constrained to think that sincere effect on the part of the investigating agency in prevention of crimes by booking the realguns behind the drug business and whole-hearted effort from all sections of the society to create awareness regarding the dangers inherent in the use of drugs are the best possible ways of saving the society from this menace.

Court of Judicial Magistrate of the Second Class

Should Not Such a Court be Established

(By K. Aravindaksha Menon, Retd. District Judge, Ernakulam)

Constitution of Criminal Courts and offices are provided for, by Chapter II of the Code of Criminal Procedure, 1973. S. 6 of the Code lays down, there shall be in every State the following classes of criminal Courts namely

I.

ii.

III. Judicial Magistrate of the Second Class

Section 11 reads as below

11. Courts of Judicial Magistrates -(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:

1) Provided that the State Government may, after consultation with the High Court, establish for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class, to try any particular case or particular class of cases, and where any such special court is established, no other Court Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.

2) The presiding officers of such courts shall be appointed by the High Court.

3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class or any member of the Judicial service of the State, functioning as a Judge in a Civil Court."

The Code dictates there shall be the courts of the Judicial Magistrates of the first class and of the second class.

S. 14(1) is as below

Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under S. 11 or under S. 13 may exercise all or any of the powers with which they may respectively be invested under this Code:

(Provided...............)

(2)......................

(3)......................

The expression 'respectively' requires to be emphasised. This would indicate that the Magistrate of the First Class may exercise only such of those powers that may be conferred on him. So also the Judicial Magistrate of the Second Class may exercise only such of those powers that are conferred on him.

S. 26 in Chapter III specifies the Courts by which offences are triable. Any offence under the Indian Penal Code may be tried by the High Court or the Court of Session or any other court by which offence is shown in the first Schedule to be triable. The Schedule mentions cases triable by the courts of the Judicial Magistrate of the first class and "any Magistrate". There is no mention of the Judicial Magistrate of the second class in the Schedule in the last column under the heading 'by what court triable.' Therefore the thinking appears to be that an offence triable by the Magistrate of the Second Class can be tried by the Judicial Magistrate of the first class. But this approach overlooks that "any Magistrate" should be Magistrate on whom respective powers are conferred. Any Magistrate authorised to try offences may try only such of those offences, to try which, powers under S. 14(1) are conferred when that be so, the Judicial Magistrate of the first class may exercise only such of those powers that are conferred on him under S. 14 of the Code. It does not look that the Judicial Magistrate of the first class can exercise, the powers of the Magistrate of the Second Class unless such powers are also conferred.

It appears that of late, in view of the notification G.O. (P) No. 190/91/Home. Dated, Thiruvananthapuram 31st December, 1991 establishing a common service called the Kerala Judicial Service in the place of then existing Kerala Civil Judicial Service and Kerala Criminal Judicial Service, powers of the Judicial Magistrate of the Second Class are not being conferred at all. By the notification a common Service is formed by integrating the members of the Kerala Judicial Service consisting of subordinate Judges and Munsiffs and the members of the Kerala Criminal Judicial Service consisting of Selection Grade Chief Judicial Magistrates, Chief Judicial Magistrates Senior Grade Judicial Magistrates of the first class, Judicial Magistrates of the first class and Judicial Magistrates of the Second Class.

The notification has not and could not abolish courts of the Judicial Magistrate of the Second Class. Courts of the Judicial Magistrate can exercise only such of those powers that may be conferred on them under S. 14. S. 32 provides that in conferring powers under the Code the High Court or the State Government may empower persons specially by name or in virtue of their offices or classes of officials generally by their titles. Therefore, the Munsiff Magistrate, since the notification referred to above have to be conferred powers of the Judicial Magistrate of the first class and of the second class to satisfy the requirements of the Code as otherwise trial of cases triable by the court of the Judicial Magistrate of the Second Class by the Munsiff Magistrate on whom powers of the Second Class Magistrate are not conferred may not be good in law. It appears that'only powers of the Judicial Magistrate of the first class are conferred on the Munsiff Magistrates since the notification of 1991 mentioned above.

May be, the question is worth discussion.

Does Article 129 Confers Power on the Supreme Court

try Contempt Committed Against other Courts Also?

(By Dr. Pooja Jha*, Advocate, Supreme Court)

Article 129 of the Constitution of India reads as follows :

"129. Supreme Court to be court of record-The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for the contempt of itself”.

Including the power to punish for the contempt of itself:

These words occuring in Art. 129 of the Constitution was construed by the Apex Court to mean that the said words confers power on the Supreme Court to punish for the contempt committed against courts subordinate to it including the High Court. This view was taken in Delhi Judicial Service Association v. State of Gujarat1in He V.C. Mishra2 and followed in Income Tax Appellate Tribunal v. V.K. Agarwa3

Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406

This case arose out of the arrest of Chief Judicial Magistrate, Nadiad in the State of Gujarat by police officers. Writ Petition and contempt petitions were filed in the Supreme Court. A preliminary objection was taken as regards the maintainability of the contempt proceedings under Art. 129. A three Judge Bench of the Supreme Court speaking through K.N. Singh, J. (as he then was) overruled the preliminary objection and held that Art. 129 confers power on the Supreme Court against contempt committed against subordinate courts also. For this proposition, the Supreme Court heavily relied on the word "including" occurring in Art. 129. The learned Judge observed in this connection which are as follows4:

"Art. 129 declares the Supreme Court a Court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself (emphasis supplied). The expression used in An. 129 ,it is not restrictive instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression "including the power to punish for contempt of itself. The article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression "including". The expression "including" has been interpreted by Courts, to extend and widen the scope of power. The plain language of Art. 129 clearly indicates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. In interpreting the Constitution, it is not permissible to adopt a construction which would render any expression superfluous or redundant. The courts ought not to accept any such construction. While construing Art. 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since the Supreme Court is designed by the Constitution as a Court of record and as the Founding Fathers were aware that a superior court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression "including" was deliberately inserted in the article. Art. 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts. If Art. 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judiciary, which forms the very backbone of administration of justice. The Subordinate Courts administer justice at the grass-root level, their protection is necessary to preserve the confidence of people in the efficacy of courts and to ensure unsullied flow of justice at its base level".

Re Vinay Chandra Mishra (1995) 2 SCC 584

This case arose out of contempt committed by a practising advocate before a Division Bench of the Allahabad High Court. The Learned Judge against whom the contempt was committed brought the matter to the attention of the acting Chief Justice of that Court who in turn brought it to the knowledge of the Chief Justice of India. The CJI constituted a Bench to hear and decide the contempt action. This case differed from Nadiad case in that the Nadiad case arose out of contempt committed against a subordinate court which was heard and decided by the Supreme Court whereas in re V.C. Mishra, the contempt was committed against the High Court but decided by the Supreme Court. It is submitted that the Supreme Court cannot try contempt committed against the subordinate courts since Art. 129 does not confer such a jurisdiction on the Supreme Court, a fortiori, if the contempt is against the High Courts as Art. 215 confers express power and jurisdiction on the High Courts to punish for the contempt of it.

A three Judge Bench of the Supreme Court in Re V.C. Mishra followed the Nadiad case and held that Arts. 129 and 142 provides sufficient powers on the Apex Court to try contempt committed against High Courts.

In Income Tax Appellate Tribunal v. V.K. Agarwal the question was whether the Supreme Court has jurisdiction to punish for contempt of the Income Tax Appellate Tribunal. A two Judge Bench of the Supreme Court followed the Delhi Judicial Service Association case and V.C. Mishra's case and held that the Supreme Court has jurisdiction to punish for contempt of the Income Tax Appellate Tribunal.

It is submitted that the reasoning given by the Supreme Court in the Nadiad case that the word "including" is to be construed widely, is applicable, when it occurs in a definition clause.

If the definition is inclusive and not exhaustive, a narrow meaning cannot be given to the word "including". But Art. 129 does not define anything. The reason for inclusion of the word "including" in Art. 129 is this. Art. 129 makes the Supreme Court, a Court of record. The Article could have stopped there as a Court of record in England has the inherent power to punish for the contempt committed against it. But an important power, such as the contempt power cannot be made to be construed. That is why, Art. 129 after stating that the Supreme Court is a court of record, went further and conferred express contempt powers on it. A court of record possesses many powers which includes contempt power. This was conveyed expressly by the Constitution makers by stating that the Supreme Court shall have all the powers of a Court of record including the power to punish for the contempt of itself. This intention of the founding fathers can be seen from the speeches made on the floor of the Constituent Assembly by the Honourable Dr. Ambedkar which are as follows5:

"The Hon'ble Dr. B.R. Ambedkar: Mr. President, the amendment which I have moved covers practically all the points which have been raised both by Mr. Kamath as well as by Mr. Jaspat Roy Kapoor.

Sir, the new Art. 108 is necessary because we have not made any provision in the Draft Constitution to define the status of the Supreme Court. If the House will turn to Art. 192, they will find exactly a similar article with regard to the High Courts in India. It seems therefore necessary that a similar provision should be made in the Constitution in order to define the position of the Supreme Court. I do not wish to take much time of the House in saying what the words 'a court of record' mean. I may briefly say that a court of record is a court the records of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any Court. That is the meaning of the words 'Court of record'. Then, the second part of Art. 108 says that the court shall have the power to punish for contempt of itself. As a matter of fact, once you make a court a court of record by statute, ihe power to punish for contempt necessarily follows from that position. But, it was felt that in view of the fact that in England this power is largely derived from Common Law and as we have no such thing as Common Law in this country, we felt it better to state the whole position in the statute itself. That is why Art. 108 has been introduced".                          (Emphasis supplied)

Thus it can be seen from the speech of Dr. Ambedkar, the reason as to why specific contempt power was conferred on the Supreme Court and for that purpose the word "including" was inserted. The debates were not brought to the attention of the Supreme Court in Delhi Judicial Service Association Case and in re V.C. Mishra. Had it been brought, the Court would have taken a different view. Therefore it is submitted that Art. 129 confers powers on the Supreme Court to initiate, try and punish contempt committed against itself only.

_______________________________________________________________________

Foot Note:

*Advocate, Supreme Court and visiting faculty in the Department of Legal Studies, University of Madras.

1. (1991)4SCC406

2. (1995) 2 SCC 584

3. (1999)1 SCC 16

4. Ibid, at pp445,446

5. Constituent Assembly Debates Vol. VIII, Book No. 3, Third Reprint, 1999, P. 382.