Enlargement of Fundamental Rights?

(By Justice K.P. Radhakrishna Menon)

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

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

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

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

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

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

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

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

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

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

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

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

Jai Hind.

No Retirement for Law

(By K. Ramakumar, Advocate, Ernakulam)

Members of the Bar may have felt bemused to read an opinion of one of the greatest Judges of India, which was published in the Hindu daily dated 3.11.2001 under the caption "Balance between the Bench and the Bar". Embellished as usual by his enormous and enviable command of language and inimitable style of writing, the comments were combative, confrontationist and spiky. Not a day passes in Kerala, without newspapers splashing speeches, comments, opinions from the irrepressible erstwhile Judge on almost every subject under the sun ranging from Molecular energy to the Mosquito menace in Kochi. Is there anyone else who can with ease and authority enthrall his audience alike, in such diverse gatherings as the Rationalist Forum and the Chinmaya Mission, the Indo American Friendship Association and the Iscus, the same day?

One thing must be said to the credit of the very eminent and energetic retired Judge. He did not choose the easy way of hitting the headlines (which he immensely enjoys) by opting for one Commission or the other, or arbitral assignments fetching fabulous fees fixed by oneself or hovering around the corridors of power seeking post-retiral positions. He, on the other hand is engaged even now in varied and variety of people's causes which keeps him in the centre of the public eye. Easily and undisputedly Sri. V.R. Krishna Iyer, a retired Judge of the Hon'ble Supreme Court continues to be one of the popular and eminent Judges of the country. It was inconceivable at one point of time, even to think of a Supreme Court without Sri. Krishna Iyer.

Yet, after his retirement he had developed a sort of sally to sneer and snipe at the very seat he had once occupied, and which he had strived hard to save from criticism, even of the fair variety. Remember, he was one of the parties to a judgment which extended the contempt jurisdiction even to the administrative side of the Court. See Barada Kanta v. Registrar reported in AIR 1975 SC 716. It is he, who now exhorts the Lawyers of Kerala who are chosen counsel for the Government to desist from furnishing their credentials in obedience to the directions issued by a Division Bench of the High Court consisting of the Hon'ble Chief Justice himself. Says Sri. Krishna Iyer:

"Any Government Pleader of self respect or self confidence will tell the court that it is not fair to ask for their credentials any more than it is for the bar to question the credentials of Judges."

The learned retired Judge must be knowing that in fact an enterprising lawyer did precisely that in Kumar Padma Prasad v. Union of India reported in AIR 1992 SC 1213 and succeeded too. For the first time in the country the Supreme Court ruled that its three top citizens, the President, the Prime Minister and Chief Justice of India erred in choosing an ineligible person to be the Judge of the Assam High Court.

To ask the members of the legal fraternity not to accept or accede to a direction issued from the court which deals with a "Lis" before it, concerning the validity of orders of appointment of certain lawyers as Government Counsel, amounts to a frontal assault on the Hon'ble Judges of the Court, their power and of course their prestige. Continues Sri Iyer:-

"I am sure the wise Judges of the Kerala High Court will act with restraint and not give room for the Bar one day to ask Judges about their own credentials. That will be chaos in the Cosmos".

The case is yet to be argued and the 'lis' yet to be resolved. Can a citizen, merely because, he happens to be a former Judge of the Supreme Court make such caustic comments or a strident call to the litigants, about a pending case telling in advance that the Judges are plainly wrong in calling for the details of the qualifications of the lawyers to help them adjudicate the issue? Can a retired Judge continue to sit in judgment over the Judges who are seized of an issue, before they themselves pronounce on it? Not, in the view of the Supreme Court, of which Sri. Krishna Iyer was himself an inseperable part, for some time. In Re P.C. Sen (Criminal Appeal No. 119 of 1996) the Apex Court elucidated the law on the point as follows:-

"The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of Court: R. v. Gray, (1900) 2 QBD 36 at P.40. Contempt by speech or writing may be by scandalising the Court itself or by abusing parties to actions, or by prejudicing mankind in favour of against a party before the cause is heard. It is incumbent upon Courts of Justice to preserve their proceedings from being misrepresented for prejudicing the minds of the public against persons concerned as parties in causes, before the cause is finally heard, has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving refelction on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal, is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere with the due course of justice. The question is not so much of the intention of the contemner as whether it is calculated to interfere with the administration of justice."

The test evolved and applied by the Supreme Court was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and due administration of law. The comments made by the erudite retired Judge, evidences an inclination to ridicule the Hon'ble Judges who ordered the Advocate General to produce the certificates in support of the appointment of certain lawyers as Counsel for the Kerala Government. They do, affect the public minds by casting a doubt that the direction issued by the Bench was of doubtful validity or propriety. They therefore undoubtedly interfere with the due course of justice and is an attempt to deflect it. This is not to suggest that the Judges constituting the Bench are not made of sterner stuff and are likely to cave in at cheap jibes at them. That, hardly is relevant as what is important in such cases is not whether the comments did affect the pending proceedings but only whether they have a tendency to do so. The motive or intention of the commentator are wholly irrelevant. So is his status in life "Law is the king of kings, for more greater than they" says one of our Upanishads. "May you ever be so high the law shall be above you" - believes the British.

Less, severe comments have been condemned by the Division Benches of the Kerala High Court itself:-

"Any publication on a pending judicial proceeding with the likely effect of interfering or tending to interfere with the administration of justice would be contempt, notwithstanding the fact that it was made as a continuation of a public debate on a matter of general importance. The statutory provisions in the Act are clearly indicative that comments or statements in relation to pending judicial proceedings, with objectionable tendencies as envisaged under the Act, would be outside the pale of contempt only subject to the satisfaction of the requirements of the exceptional provisions such as Ss.4 and 5". - See 1986 KLT 303.

"It is well settled that abusing and vilifying parties to a pending proceeding in relation to the proceeding, amounts to contempt. The fact that the writer did not desire or intend to prejudice the case is immaterial (except as to the extent of his punishment), if the court is satisfied that such was the obvious and necessary result of his words. If the publication is of such a nature calculated to obstruct or interfere with the due course of justice the person who published, will be guilty of contempt whatever be his intention in publishing the same. It would, therefore, be contempt of court to publish in papers during the pendency of a case, matters derogatory to the parties which must necessarily prevent them from obtaining a fair trial of the action. It is no defence to a charge of contempt that the offensive article never reached the eyes of the court or that the court was not prevented from performing its duties fairly and properly or that the respondent had no disrespectful or contemptuous design of reflecting upon the dignity of the court, or that the respondent did not know the nature of the publication or that the articles published during the trial were true and impartial statements of news and facts, or that they were published without intent to injure the parties or interfere with the administration of justice." - said the Court in 1965 KLT 871.

Nor does the view expressed by the eminent jurist on the legal issue involved represents the correct position in law. He appears to altogether ignore the progress made probably after he left the Supreme Court, in the law relating to the fields of public contracts and to appointments to public offices. Today, the position in law is that unlike a private party every order of the Government is amenable to be tested on the touch-stone of Art.14 of the Constitution of India including in the field of contract. See for instance, the observations of the Supreme Court in Sreelekha Vidyarthi's case:

"Thus the wide sweep of Art.14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government counsel in the district and the other rights, contractual or statutory, which the appointees may have."

It is not as if a "Progressive Judge" (Sri. Krishna Iyer would like to call himself one and likes others to call him so) is not aware of the substantial strides that the Supreme Court has made in the field of Administrative Law in India, even overtaking the conservative view that still prevails in the country of its origin, the United Kingdom.

With great respect therefore to one of India's front ranker in the forensic field, his comments do constitute contempt, do not represent the correct position in law and do have a tendency to interfere with the pending proceedings before the High Court of Kerala.

Shah Bano's Case in Retrospect

(By Kaleeswaram Raj, Advocate, High Court of Kerala)

The recent decision of the Supreme Court on the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is significant in several ways. In Danial Latifi & Ann v. Union of India, 2001 (3) KLT 651, the Apex Court held that the entitlement for maintenance under the Act is not confined to 'iddat' period. On the one hand the judgment removes the doubts if any regarding the true meaning and intent of S.3 of the Act concerning the divorced women's entitlement for maintenance. On the other and more importantly, the judgment shatters the misconception that the legislation of 1986 was an attempt to sabotage the 'revolutionary' verdict in Shah Bano Begum's case (AIR 1985 SC 945). Though the Apex Court attributed motive to the statute in para 28 of the judgment in Danial Latifi's case, it only remains as a passing comment.

The notion that Shah Bano judgment was a seminal one which came to the rescue of deserted Muslim Women is a myth. The propaganda that the legislation of 1986 was designed to woo the orthodox Muslim sect also is equally a myth.

In Shah Bano's case the Supreme Court held that a divorced Muslim Woman is entitled for maintenance as in the case of women belonging to other sects. The Court also held that Talaq does not ipso facto or ipso jure take away the women's right for maintenance. Shah Bano judgment was delivered in the context of S.125 of Criminal Procedure Code (Cr.p.C.) which is the general provision for maintenance, irrespective of religion or personal laws.

Therefore, it is clear that Shah Bano judgment has only interpreted S.125 of Cr.P.C. as amended in 1973. It has not in any way widened or modified the scope of the said provision. Therefore it goes without saying that judgment in turn perpetuates the inherent limits and deficiencies of S.125 of Cr.P.C. It is also not possible nor plausible to contend that courts are entitled to fill up the legislative dearths. To limits of S.125 may be broadly summarized as follows:-

1. The section provides only for bare maintenance for subsistence. The maximum amount that could be awarded as per the provision is Rs.500/-. In the celebrated judgment in Shah Bano's case, she was awarded a monthly maintenance of Rs.25/- by the learned Magistrate. Even in cases where the husband earns substantial income, there is no provision in Cr.P.C. to take the financial position and standard of living into consideration and to fix a higher amount due to statutory ceiling. (Only very recently the Parliament has passed a bill removing the said ceiling).

2. Cr.P.C. contains provisions only for maintenance and not for other incidental entitlements that may arise out of the matrimonial bond. As such the code does not visualise the claim of a deserted wife to get back the properties like ornaments, land etc. which would have been obtained by the husband at the time of marriage.

It was in this context that the legislation of 1986 made a radical change in the law relating to maintenance. It is fallacious to think that merely due to incorporation of principles of personal law (Shariah) a statute becomes conventional or orthodox. It is equally fallacious to argue that negation of personal laws (as in Cr.P.C.) would perse make the legislation progressive. From the women's point of view, the statute of 1986 has been more beneficial and purposive when compared with the general law as explained in Shah Bano Begum. S.3 of the statute would show as to how the deserted women are taken care in a more pragmatic and comprehensive manner. The relevant part of the provision is extracted below:-

"Maher or other properties of Muslim woman to be given to her at the time of divorce- (i) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth or such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at anytime thereafter according to Muslim Law; and

(d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provisions and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-s. (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance mahr or dower or the delivery of properties, as the case may be,

(3) Where an application has been made under sub-s. (2) by a divorced woman, the Magistrate, may, if he is satisfied that-

(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provisions and maintenance for her and the children, or

(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-s. (1) have not been delivered to her;

make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or. as the case may be. for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-s.(1) to the divorced woman"..........(Emphasis added)

Therefore it is clear that the provisions in the statute enable the Muslim wives to claim reasonable and fair provision and maintenance, to be made and paid to her within the Iddat period by former husband. On a plain reading of the statute, the entitlement for reasonable provision is contemplated apart from maintenance to be made and paid to her within the iddat period by former husband. Unlike Cr.P.C. the Act also provides for redelivery of properties obtained by the husband at the time of or after the marriage. The Act of 1986 also enables the courts to consider the income and standard of living while fixing the quantum of maintenance. It does not prescribe any upper limit as regarding the amount of maintenance.

Even before the present judgment by the Supreme Court, the Kerala High Court interpreted the provision in the Act of 1986 as follows:-

"The objects and reasons are stated in unmistakable terms that the purpose of the enactment is to protect the interests of divorced Muslim women. The divorced Muslim women are thus entitled to a reasonable and fair provision and maintenance. The attempt should be to give meanings to all words used in the clause. The Parliament must be taken to have decided to provide the divorced woman with maintenance for the period of Iddat and also a reasonable and fair provision for her. Both these should be paid and made to her during the Iddat.' The word 'provision' means an amount set apart towards a known liability, the amount which cannot be determined with accuracy. The known liability of a husband is to provide for the future of the divorced Muslim woman. He will not be in a position to determine the amount with substantial accuracy. It is for that purpose he has to make provision. That provision will be entirely different from the maintenance due to the divorced Muslim woman for the period of Iddat. The gift, to be paid by the husband at the time of divorce, as commended by the Quran, is recognised in sub clause (a) of clause (i) of S.3. of the Act. This liability is cast upon the husband on account of the past advantage received by him by reason of the relationship with the divorced woman or on account of the past disadvantage suffered by her reason of matrimonial consortion. It is in the nature of compensatory gift or solatium to sustain the women for her life after divorce. In accordance with the principles of Islamic equity the said provision or compensation or support from the former husband is wife's right. This right has been given legislative recognition in the above provision" (Chelangadan Ali's case, 1988 (2) KLT 141).

In the same case S. 3 of the Act was deconstructed by the Kerala High Court, in the following manner:-

"The words appearing on either side of the word 'and' must be taken to have been joined together by it. Those words must be taken to represent two different categories. If those two words stand for two different objects and they are joined together, then words 'provision' must mean something other than 'maintenance'. Viewed in that manner it is evident that a divorced Muslim woman is entitled not only to maintenance for the period of 'lddat' but also to a reasonable and fair provision for her future livelihood from her former husband". The High Courts of Bombay, Gujarat, Punjab and Madras followed the Kerala View.

However, strangely and unfortunately, a Full Bench of the Andhra Pradesh High Court in Usman Khan's case, (AIR 1990 AP 225) interpreted S. 3 as follows:

"There is nothing in the section which can be read to mean that the husband is liable to make reasonable and fair provision and maintenance beyond the period of lddat". The court even interpreted the Shah Bano's judgment as follows:-

"The Act of 1986 has been passed in the wake of the decision of the Supreme Court in Shah Bano case and seeks to remove the difficulties that have arisen as a result of that decision in regard to the liability of the husband to pay maintenance to his divorced Muslim wife. Even in the case of Shah Bano, it is recognised that a Muslim women is entitled to maintenance under the Muslim law only during the period of Iddat. However, it is held that if she is unable to maintain herself then the liability of the husband to pay maintenance arise under S.125 of the Code. Therefore, inherent in the decision of the Supreme Court is the recognition of the principle that while maintenance during the period of Iddat is to be paid under the Muslim law, maintenance beyond the period of Iddat is envisaged only under S.125 of the Code". Thus the Andhra Pradesh High Court opined that "the intention of the legislature is manifestly clear that it envisages the making of reasonable and fair provision and payment of maintenance to the divorced wife commensurable with the period of Iddat to be paid within the period of lddat".

The fundamental flaw in the Andhra decision is that it was carried away by the popular notion regarding the legislative motive behind the Act of 1986. The Court also resorted to the interpretation of the judgment in Shah Bano's case for the interpretation of a subsequent statute. Thus the very methodology of the Andhra High Court suffered logical infirmities.

On a total evaluation one would be tempted to say that it was not the statute which was at fault. It was the misconceived interpretation of the statute that worked apparent injustice to the deserted Muslim women. But it remains as a strange paradox that Parliament was accused of turning 'Shah Bano Revolution' upside down. The uproars against the 1986 statute were accelerated by persons from political, media and even legal platforms. It resulted in one of the strongest supersitions in Indian Law which is now exposed by the Apex Court, though unintentionally and indirectly.

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 

Quo Vadis Mandamus

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

I am distressed, and have a sense of concern, over the present predicament of the much misunderstood, mismanaged and mishandled mandamus, one of the Constitutional remedies. Mandamus is now being treated as a stock in trade by the legal profession. Also, sad but quite true, the signboards on the legal profession are being ignored.

Mandamus was born in England with a Royal/prerogative status. India made a Constitutional adoption of the English-born with a Norman-French nomenclature. The Indianisation of the British Mandamus was fast indeed; and its present position, with accumulated defects, is dolorous, having been mauled, by clumsy handling and legal roughing.

Mandamus, to compel the performance of a royal will, gave place to the judicial writ of mandamus to compel the performance of a public duty; and this was evolved by the King's Bench early in the seventeenth century. An applicant seeking the remedy/writ of mandamus should have a specific legal right to the performance of a public duty; and he must have demanded performance and been met with a wrongful refusal.

Referring to the nature of mandamus in England, Corpus Juris Secundum explains: "Mandamus has been broadly defined as a writ issuing from a court of competent jurisdiction, directed to a person, officer, corporation, or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or from operation of law, or as a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. It is a proceeding to compel someone to perform some duty which the law imposes on him, and the writ may prohibit the doing of a thing, as well as command it to be done".

Hail Lord Denning for the clear exposition of the remedy of mandamus in the famous Padfield case as also the Blackburn cases. Mandamus is applied for, to see that the law is enforced, declared the law Lord. The Blackburn case attracted the attention of a cartoonist, who depicted Lord Denning as a stricken sandwich-man. Let everyone refer to The Discipline of the Law, to perceive the disciplined mandamus.

Mandamus is sought to enforce statutory duties of public authorities. 'Hear and determine according to law', is the mandate, the law being indicated, by the Court. More generally, act as prescribed by the provisions of the law, is the direction.

Sir William Wade says: "Obligatory duties must be distinguished from discretionary powers. With the latter mandamus has nothing to do; it will not, for example, issue to compel a minister to promote legislation".

The Court of Appeal in the Equal Opportunities Commission Case held: "Domestic legislation remains a matter for Parliament, not for the courts.... It goes without saying that.................the last word would lie with the Parliament........". It is wrong for the courts to direct introduction of legislation, observed Hirst L.J.

The Supreme Court of India has held that Court cannot direct/compel Government to enact law or to make subordinate legislation; or refrain from doing so. (Mallikarjuna Rao, Asif Hameed, and several other decisions.)

But it amazes me no end to see now-a-days High Courts diffusing the remedy of mandamus. The writ of mandamus is issued in reticent vocabulary:

"The petitioner has filed Ext. PI before the first respondent. Therefore the first respondent is directed to consider and dispose of Ext. PI as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment", is the refrain in many a case. I refrain from repeating the content of the extraordinary remedy of (real) mandamus. which seems to be in hiding; and its end is nigh. There are cases in which the Government is directed to introduce legislation. In certain cases, petitioners are directed to make representations to public authorities, and such authorities are directed to consider the representations as and when made, without any regard to the legal obligations of such authorities. For a practitioner of law, a prayer for a writ of mandamus has become handy and hand-barrow for income without ado. But think of the predicament of public authorities, in terms of time and expenses, in complying with the directions for no purpose whatsoever

If this be the state of affairs, the law relating to the remedy/writ of mandamus will have to be re-written, under the caption 'Writhe the Mandatum'. Justitia forbid.