Tax And Fee - The Distinction

(By Markose Thomas, Advocate, High Court of Kerala)

-----That the power to tax involves the power to destroy-----

Marshall John, in M'Culloch v. Maryland 17 US (4 Wheat) 316,431 (1810).

There is no generic difference between a tax and fee; both are compulsory extraction of money by public authorities. But whatever minute difference there is, it needs to be analysed in detail because the distinction is mainly ascertainable by analysing the various decisions of Supreme Court with regard to the principle of quid pro quo in relation to fee. It is also important to analyse the distinction as our Constitution itself provides for a distinction between the two.

The etymology of the two words is useful in understanding the distinction.

Fee

Fee is a word bequeathed to Modern English by the feudal system (and indeed it is closely related etymologically to feudal). It came via Anglo-Norman fee from Medieval Latin feodum or feodum Source also to feudal.

Tax

Tax originally denoted "assess an amount to be levied" the notion of "imposing such a levy" is a secondary development. The word comes via old French taxer from Latin taxare. From taxare was derived by the medieval Latin noun taxa 'tax, piece of work imposed' which passed into English through Anglo-Norman tasque as task.

The Distinction

There are a fairly large number of decisions of the Supreme Court dealing with the distinction between a tax and a fee and they indicate the essential characteristics of a fee1One of the most important decision in which there is a detailed and illuminating discussion on the above aspects is AIR 1954 SC 282. Mukherje, J. delivering the judgment of a Constitutional Bench of seven Judges of the Supreme Court stated that a neat definition of what tax means has been given by Latham C.J. of the High Court of Australia in Mathew 's v. Chicory Marketing Board, 60 CLR 263 and quoted the following passage from that decision-passage from that decision-

"A tax is a compulsory exaction of money by public authority for public purpose enforceable by law and is not a payment for services rendered".

The learned Judge then elaborated the matter as follows:-

"It is said that the essence of taxation is compulsion that is to say, it is imposed under statutory power without the tax payer's consent and the payment is enforced by law." Vide Lower Mainland Dairy v. Crystal Dairy Ltd., 1993 AC 168.

The characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. As the object of a tax is not to confer any special benefit upon any particular individual there is, as it is said, no element of 'quidpro quo' between the tax payer and public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.2

A fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supported to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily the fees are uniform, and no account is taken of the varying abilities of different recipients to pay. A fee is paid for performing a function. A fee is not ordinarily considered to be a tax. If the fee is merely to compensate an authority for service rendered, it can hardly be called a tax.3

The Constitutional Perspective

Under the Indian Constitution, the Government's power to levy a tax is not identical with that of its power to levy a fee. While the powers to levy taxes is conferred on the State legislatures by the various entries in List II, in it there is Entry 66 relating to fees, empowering the State Government to levy fees in respect of any of the matters in this list, but not including fees taken in any Court. The result is that each Stale Legislature has the power, to levy fees, which is coextensive with its powers to legislate with respect to substantive matters and it may-levy a fee with reference to the services that would be rendered by the State under such law.

Clause (2) of Art.110 and Clause (2) of Art.199 of the Constitution, the former occurring in the Chapter of Parliament and the latter in relation to the State Legislature, are in identical terms as follows:

A bill shall not be deemed to be a Money Bill by reason only that it provides for the demand or payment of fees for licenses or fees for services rendered.....

The Constitution, therefore, clearly draws a distinction between the imposition of a tax by a Money Bill and the impost of fees by any other kind of Bill. So also in the Seventh Schedule both in List I and List II a distinction has been maintained in relation to the entries of tax and fees. In the Union List entries 82 to 92 A relate to taxes and duties and entry 96 carves out the legislative field for fees in respect of any of the matters in the said list except the fees taken in any Court. Similarly in the State List entries relating to taxes are entries 46 to 63 and entry 66 provides for fees in respect of any of the matters in the said list except the fees taken in any Court. Our Constitution, therefore, recognises a different and distinct connotation between tax and fee.

The Case Law

It is necessary to review some of the decisions of the Supreme Court to pin point the precise difference as far as practicable in order to resolve the distinction between a tax and fee.

The leading case of Supreme Court, which has been referred and followed in many subsequent decisions, is the case of Commissioner, Hindu Religious Endowments, Madras v. Sri. Lakshmindra Thirtha Swamiar of Shirur Mutt4. The point decided therein was that the provision relating to the payment of annual contribution contained in S.76(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 is a tax and not a fee and so it was beyond the legislative competence of the Madras State Legislature to enact such a provision.

There were some very useful and leading principles from the decision of the Supreme Court in5 pointing out the difference between tax and fee. At page 1042 says Mukherjee, J.

"The distinction between a lax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege....public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives".

In the case of Hingir Rampur Coal Co. Ltd. v. State of Orissa6 the challenge was to the cess levied by the Orissa Mining Areas Development Fund Act, 1952. The petitioners stand was that the cess levied was not a fee but a duty of excise on coal and hence beyond the competence of the State Legislature. The cess imposed was upheld as a fee. Gajendragadkar, J. delivered the judgment on behalf of the majority and discussed the point at some length. At page 545 Says the learned Judge: "a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it".

The Supreme Court in Nagar Muhapalika, Varanasi v. Durga Das Bhattachary7 held that the annual licence fee charged from the rickshaw owners and the driver of the Varanasi Municipal Board could be justified only on the basis of the element of quid pro quo. The fee was held to be ultra vires and illegal because after excluding certain items of expenditure the balance did not constitute sufficient quid pro quo for the amount of the licence fee charged.

In the case of Secretary, Government of Madras, Home Department v. Zenith Lamp & Electrical Ltd. 8the character of Court fees came up for consideration as to whether they are taxes or fees or whether they are sui generis. Although after referring to the various entries of the seventh schedule in the different lists it was noticed that court fees were not taxes and they were covered by separate entries of fees exclusively meant for courts, yet the broad principles of the requirement of quid pro quo were made applicable in the case of court fees also. Even so, Sikri, CJ. speaking for the court pointed out at page 982 (SCC p. 170 para 31).

"But even if the meaning is the same, what is 'fees' in a particular case depends on the subject matter in relation to which fees are imposed. The learned Chief Justice further observed at the same page: "In other words it cannot tax litigation, and make litigates pay, say for road building or education or other beneficial schemes that a Stale may have. They must be a broad correlationship with the fees collected and the cost of administration of civil justice".

Observations of Chandrachud, J. speaking for the Court in the case of Government ofA.P. v. Hindustan Machine Tools Ltd. 9at page 401 are quite apposite and may be usefully quoted here (SCC p. 282, para 22).

"One cannot take into account the sum total of the activities of a public body like a Gram Panchayat to seek justification for the fees imposed by it. The expenses incurred by a Gram Panchayat or a Municipality in discharging its obligatory functions are usually met by the imposition of a variety of taxes. For justifying the imposition of fees the public authority has to show what services are rendered or intended to be rendered individually to the particular persons on whom the fee is imposed. The Gram Panchayat here has not even prepared an estimate of what the intended services would cost it".

In Municipal Council Madurai v. R. Narayanan10 endeavour was made as in the case of Nagar Mahapalika, Varanasi11 to justify the impost by the Municipal Council as a tax. Krishna Iyer. J. speaking for the Court repelled that argument and since the impost could not be justified as fee the resolution of die Municipal Council was held to be invalid.

In Kewal Krishnan Puri case12 Untwalia, J. made the following observation.

1...it must be shown with some amount of certainty, reasonableness or preponderance of probability that quite a substantial portion of the amount of fee realised is spent for the special benefit of its prayers. (SCC p. 425)

2...a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the persons who pays the fee and the public authority which, imposes it. (SCC p. 426)

3…it (service) means service in relation to the transaction, property or the institution in respect of which he is made to pay the fee (SCC p.427).

But in Sreenivas General Traders & Ors. v. Slate of A.P.13the Supreme Court pointed out that the decision in Kewal Krishan Puri14 case does not lay down any legal principle of general applicability. The observation made therein seeking to quantify the extent of correlation between the amount of fee collected and the cost of rendering of services, namely, "At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two third or three-fourths, must be shown with reasonable certainty as being spent for rendering services in the market to the payer of fee", appears to be an obiter. It was not intended to lay down a rule of universal application but it was a decision, which must be confined to the special facts of the case.

In M/s. Kishan Lai Lakasmi Chand v. State of Haryana15the Supreme Court restated the distinction between tax and fee and pointed out that quid pro quo is an essential element of fee. But in the case of P. Kanadasa v. State of Tamil Nadu 16B.P. Jeevan Reddy, J. speaking for the Court differentiated between tax and fee and pointed out that the element of quid pro quo need not be established in each and every case and in case of regulatory fee the element of quid pro quo is totally irrelevant.

Conclusion

The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is a payment for a specific benefit or privilege. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fee, there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area of class; it may be of no consequence that the State may ultimately and indirectly be benefited by it.

A levy in the nature of fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. Merely because the collections for the services rendered or grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive.

If the object of the fee is to provide general revenue to the authority rather than to compensate it and the amount of fee has no relation to the value of the service, the fee will amount to a tax. Where it appears that under the guise of levying a fee the authority is attempting to impose a tax, the court has to scrutinise the claim to find out whether there is a real co-relationship between the service and the levy whether it is so co-extensive as to be a pretence of a fee but in reality a tax and whether a substantial portion of the fee collected is spent in rendering services.

The power of any legislature to levy a fee is conditioned by the fact that there must be 'by and large' a quid pro quo for the services rendered. Thus the element of quid pro quo in the strict sense is not always a sine qua non for a fee. However, correlationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a 'reasonable relationship' between the levy of the fee and the services rendered.

________________________________________________________________________

1. (a) Commissioner, H.R.E. v. LT, Swamiar AIR 1954 SC 282. (b). Ratilal v. State of Bombay, AIR 1954 SC 388. (c). Jaganath V. State of Orissa, AIR 1954 SC 400. (d). Hingir-Rampur Coal Co. v. State of Orissa, AIR 1961 SC 459. (e). S.T. Swamiar v. Commr. H.R. and C.E. AIR 1963 SCC 966. (f) Corpn. of Calcutta v. Liberty of Cinema. AIR 1965 SC 1107. (g). Nagar Mahapalika v. Durga Das AIR 1968 SC 1119. (h). Lakhan Lai v. State of Bihar AIR 1968 SC 1408. (i). Commissioner H.R. & C.E. v. U. Krishna Rao, AIR 1970 SC 1114. (j). D.C. & G. Mills v. Chief Commr. Delhi, AIR 1971 SC 344 and (k). Indian Mica & Micarite Industries Ltd. v. State of Bihar, AIR 1971 SC 1182.

2. (a) Keural Krishna Pari v. state of Punjab, (1980) 1 SCC 416; (1973) 3 SCR 1217; (b) Sreenavas General Traders v. State of A.P. (1983) 4 SCC 353; (c) Subash Chander Kamalesh Kumar v. State of Punjab, AIR 1990 P & H 259.

3(a) Ram Chander v. State of U.P. 1980 Supp. SCC 27; (1980) 3 SCR 104; (b) Southern Pharmaceutical and Chemicals, Trichur v. Stale of Kerala (1981) 3 SCC 391; 1981 SCC (Tax) 320; (1982) 1 SCR 519, (c) Municipal Corporation of Delhi v. Mohd. Yasin (1983) 3 SCC 229; 1983 SCC (Tax) I54;(d) Ram Chander Kumar Co. v. State of UP. (1980) 2 SCR 104; 1980 Supp. SCC 27.

4. AIR 1954 SC 282; 1954 SCR 1005; 1954 SCJ 335.

5. Ibid.

6. (1961) 2 SCR 53; AIR 1961 SC 459.

7. (1968) 3 SCR 374; AIR 1968 SC 1119; (1968) 2 SCJ 836.

8. (1973) 2 SCR 973; (1973) 1. SCC 162; 1973 SCC (Tax) 203.

9. 1975 Supp. SCR 374: (1975) 2 SCC 274.

10. (1976) 1 SCR 333; (1975) 2 SCC 497; 1975 SCC (Tax) 386.

11. Supra 7.

12. (I979) 3 SCR myr (1980) 2 SCC 416, AIR 1980 SC 1008.

13. (1983) 3 SCC 354

14. Supra 12.

15. 1998 Supp (4) 46l

16. 1996 (7) JT 17. 

A Critical Note on 2000 (1) KLT Journal 35

(By J. Krishna Kumar, Advocate, Ernakulam)

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

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

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

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

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

i) When there is want or excess of jurisdiction

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

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

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

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

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

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

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

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

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

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

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

Nobility of Legal Profession

(By N. Dharmadan, Advocate, Ernakulam)

This noble profession of lawyers, viz., the system of engaging trained persons by litigants for arguing the cases on his behalf before a Court of law is an institution of ancient origin. If we trace the genesis of advocacy it can be seen that originally it was really a free service for others. In Greece there was a system to allow persons to appear gratuitously in court for litigants and speak on his behalf. In Rome advocacy took its earliest form in the relationship between patron and his client to explain the law by patron on behalf of his client. In England during the reign of Henry Ilnd certain persons having clerical training were appointed to defend the actions. For centuries in England legal knowledge was the monopoly of priests. In India it has an ancient origin. Originally persons who are well versed in law plead for others as their private agents without any fees. It was considered dishonourable to charge fees for sending the legal advice and defending cases.

Legal profession unlike other professions is honourable and prestigious. The advocates are addressed with a prefix 'Learned', because it is intended for service to the people in protecting their personal liberty and right to property. It is honourable because it is not a business; but only a service. The greatness, dignity and honour of the legal profession lies in the Code of its ethics governing the relations of lawyers between themselves and with others in their professional matters and dealings. The failure to observe the ru'es of advocacy will degenerate it into a trade or a means for accumulation of wealth. It is not a vocation for private gain.

It has long been the axiom of the legal profession that any form of self advertisement by a practising member of the Bar is contrary to etiquette. It is regarded as unprofessional for an advocate to advertise oneself directly or indirectly. Such a course of action tends to lower the dignity of this honourable profession and is akin to touting. The Advocate should not seek clients, but this duty is to give legal assistance to those who seek assistance. Solicitation of work in any form is taboo. In fact it is prohibited in foreign countries for it is considered undignified and a professional misconduct.

Solicitation which is unprofessional may take numerous forms. It is said "there can be many ways which an Advocate, intending to advertise himself, may adopt and yet try to conceal the fact that he is so advertising. "The issuing of circular letters or election manifestos by a lawyer with his name and address printed therein, appealing to the members of his profession practising in the lower court, who are of course in a position to recommend to the counsel practising in the High Court, is obviously an indirect way of advertisement". An Advocate sending a circular post card with the name, address and description himself would amount to an advertisement on his part therefore of it is an improper conduct. A person canvassing for votes is deemed touting in the State. The sending of clerks and deputing agents to various districts by an advocate necessarily mean approaching directly the Advocates practising in the Subordinate Court. This would undoubtedly be advertising in an indirect manner and is certainly reprehensible. Another cheap way of advertisement is writing articles and giving opinions for publication in news papers, when the writer describes himself as an Advocate practising in a particular court. They are ill motivated because such discussions on controversal topics relating to legal profession, pertaining to law, Court or the Bar Council thro' media are really intended to bring the lawyer himself to the notice of other lawyers and litigant in the mofussil in the hope of attracting work. All such practices must be condemned as they amount to flagrant breach of professional etiquette. They are in fact really intended for getting unfair advantage over other members of the Bar and will amount to professional misconduct liable to be proceeded against by the Bar Council.

In England a barrister is entitled to personal advertisement as it is necessary for the proper exercise of his profession; but it would be unprofessional to do or allow to be done with the primary motive of advertisement. A practising barrister may not appear robed on television oV on film, but there is no objection in exhibiting his portrait in robes in a particular place. An advocate should not permit his name to appear in trade directories or International Law lists published by authorities. He should not permit himself to be described in news paper articles as practising in a particular division of the High Court (Halsbury Laws in England page 1196, Vol.III).

A barrister announcing himself in a newspaper that he is open to consultation between certain hours, giving interviews or supplying information to the press concerning his life, practice, achievements, earning, contributions to fund, organisation, society, etc. are professional misconduct to be condemned. Publishing his photograph as a member of the bar in the press or any periodical will be treated as advertisement and unprofessional action.

A practising barrister may broadcast lectures on law or on quasi judicial subjects only with the prior consent of the Bar Council. He cannot take part in a film on a legal or quasi legal subject without prior sanction of the Bar Council, but in the case of non-legal subject, he may do so under his own name without disclosing his position as barrister practising in courts. It is contrary to professional etiquette for a barrister to answer legal questions in news papers and periodicals disclosing his name and status either directing or indirectly for publicity.

A member of the Bar should not write articles with regard to pending cases nor in cases where the time for appeal has not expired. He should not give an interview to a press representative on any matter in which he has been, or is engaged as a counsel. He should not furnish signed legal photographs for publication. Above all he should not blow his own trumpet and talk on his forensic ability.

All these are taboo for an Indian lawyer as well; but they are invariably overlooked and this profession is now carried on for amassing wealth and fame. The advocates are now forgetting the fact that they are not tradesmen, but only public servants and officers of the Court to help the court in coming to the right conclusions both on questions of law and facts. They are the "guardians of three greatest gifts of modern civilization viz., order, justice and liberty". They stand for legal order which is one of the noblest functions in the society.

But in recent times, the professional people are forgetting all these and concentrating on self, power and fame. This is an unhealthy trend; if this trend is encouraged nobility of this profession will be lost in the course of time and it may also lead to mutual jealousies and competition among the lawyers.

A professional lawyer must always remember the words of Lord Macmillan that "no other profession touches human life at so many points. The legal profession, by its ethics, is a carrier of service to the community and not a trade". Men of bad character and antecedence cannot but disgrace the profession even if their bad conduct does not extend to the professional sphase. Young B. Smith, Dean of Columbia University School of Law, once said "If you would materially improve the ethical standard of the profession, law study must be so reorganised as to arose in the future members of the Bar because, I think that the present members are beyond redemption - a higher idealism and a greater sense of public responsibility. This can best be done by placing a greater emphasis upon the social implications of legal rules and legal practices, thereby revealing to the students the true functions of law and of the lawyer'.

Dread of the Rod

(By T.P. Kelu Nambiar, Advocate, Ernakulam)

The Nineteenth Century poem in prose, 'Dread of the rod alone restrains the bad, controls the good", could only be considered sheer prosaic and absolutely archaic in the twenty -first century. Public spirited Gandeevan's prayer for 'directions in the matter of banning corporal punishments in schools in the State', was rejected out of hand by a Division Bench comprising Chief Justice Mrs. K.K. Usha and Mr. Justice Kurian Joseph, in judgment dated the 16th December 2000, in O.P. No. 34080 of 2000. It is seen that the Writ Petition had come up for admission hearing on the 16th December, and judgment dismissing the same was rendered on the 16th itself. That means, the dismissal was instant, at the admission stage itself, without issuing notice to the respondents, and without their Lordships taking time for consideration. It is the respectful submission of this writer that the case should not have been dealt with in such a sudden-death fashion, because the controversy rate of the subject has been at a very high percentage during recent times. In fact, this was a fit case for extending a general invitation to the bar to air assorted/diverse views; and even for inviting help from a friend of the court (amicus curiae).

The judgment in Gandeevan's case seems to have missed the difference between corporal punishment and imposition of penalty for breach of discipline of the school. Paragraph 2 of the judgment refers to Chapter IX of the Kerala Education Rules, containing rules on 'Discipline'. Paragraph 3 of the judgment deals with the contention concerning corporal punishment: and links this aspect with rules on 'Discipline' earlier stated. The learned Judge think, wrongly though, that corporal punishment could be prescribed by rules, as part of 'Discipline' as contemplated in Chapter IX KER. That is why it is observed that 'it cannot be stated that use of canes is absolutely unnecessary in schools', and 'in certain situations canes would prove to be useful'; but 'these are all matters for the school authorities to consider while framing the rules of discipline as warranted under R.1'; and 'it is not for this Court to intervene in such matters where statutory provisions are there to take care of such situation'. The statutory provision referred to is R.17, whereunder it is left to the Director of Public Instruction to take decisions.

The submission of this Writer is that the attention of the learned Judges was not invited to the fact that Chapter IX KER deals with imposition of penalty for breach of the rules of discipline; and the punishments provided are censure, suspension, dismissal or imposition of fine; this Chapter does not even remotely contemplate corporal punishment; and this Chapter does not permit the school authorities to frame rules prescribing imposition of corporal punishments like beating, caning, slapping, or pinching. No rule could be framed prescribing the number of beatings, canings, slaps, or pinches for particular breach of discipline.

To the best of my knowledge, (subject to correction and chastisement), the only reported case concerning infliction of corporal punishment on a student is the one reported in ILR 45 Madras 548 (Sankunni v. Swaminath Pattar). A Division Bench of the Madras High Court, comprising Mr. Justice Oldfield and Mr. Justice Venkatasubba Rao, considered the question in separate judgments, concurring though. That was a case in which the head of an educational institution had inflicted corporal punishment on a student, giving him. 'two smacks' with his hand on his cheek. The question was as to whether the infliction of this chastisement was within the powers of the head of the institution and, further as to whether the head of the institution was liable for damages for such infliction of chastisement.

Relying on the ancient Roman Law, the English Common Law and the general rule laid down by the English Courts, and not without noticing R.59-A of the Madras Educational Rules, 1918, which sanctioned corporal punishment in schools for specific cases of mis-behaviour by students, the Division Bench of the Madras High Court concluded that for purposes of correction the school master may inflict a moderate and reasonable corporal punishment. The learned Judges were not unaware of immoderate or unreasonable corporal punishments and punishments imposed on account of ill will or malice. The ultimate decision came to in the case was with great caution, and not without hesitation. It is submitted that the decision in Sankunni's case should rest on the facts and features of that case. That decision cannot be general authority for the position that infliction of corporal punishment on students is justified. A reading of the judgment would show that leading Advocates who appeared on the case for either side, namely Sri. Chettur Madhavan Nair and Sri. Alladi Krishnaswami Iyer, and the learned Judges themselves, were very cautious in dealing with this sensitive question.

As R.W. Emerson said, the secret of education lies in respecting the pupil; the aim of education should be to teach the child to think, not what to think. Teachers should be guided by Horace Mann's theory:

"The object of punishment is the prevention of evil, it can never be made impulsive to good".

It should also -be remembered that teachers of today are not Gurus. A teacher gives only knowledge; but a Guru Gives himself. Times have changed. And the question of inflicting corporal punishment on students in these days should be considered with reference to the changes in imparting and receiving instructions; the changes in the method of teaching; the changes in the art of teaching; as also the standard of teaching. Oscar Wilde might not have been wrong when he said that everybody who is incapable of learning has taken to teaching.

The days of David Copperfield are gone. England has now banned corporal punishment on students. That is also the case in most parts of the United States and Europe.

I should venture the submission that Gandeevan 's prayers merited careful contemplation, not casual consideration.

Tail Piece: "I have always felt that the true text book for the pupil is his teacher."

- Mahatma Gandhi 

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.