A Dead Section in the Penal Code, Still Lives on

(By V.K. Babu Prakash, Judicial First Class Magistrate, Karunagappally)

In an interview held recently for the law officer's post in a public Sector Company, the Chairman of the interview board an eminent Juristic personality put a question to a candidate as follows:- "Which is the offence which confers upon the court which finds the accused guilty of such offence, no discretion to pass sentence except death sentence?" The candidate, a bright chap with a smile in the corner of his lips exalted the answer as follows : "Whoever being under sentence of imprisonment for life commits murder shall be punished with death. And the section is 303 of Indian Penal Code." The Chairman felt impressed of his answer and did not conceal his appreciation. But the candidate did not let him off. He said to the Chairman that the offence and its punishment no longer exist in the statue as it has been struck down by the Supreme Court long ago. The Chairman did not nourish this. He tried to contradict the candidate stating that he is wrong. He took out the latest Bare Act of Indian Penal Code and hurriedly fidgeted the pages. Alas, finds S.303 among the line of sections both in the Schedule as well as in the contents. The new black print of the pages was gazing at the candidate right on his face.

The candidate was true. S.303 IPC was struck down by the constitutional Bench of the Supreme Court headed by five eminent Judges of the time on the grounds that it violates Arts.14 and 21 of the Constitution respectively. The decision was reported in 1983 CRLJ 811 Supreme Court (AIR 1983 SC 473) in Mithu v. State. When a statute or its provision is struck down by the Supreme Court, the effect and implication are that it no longer exists. It becomes a dead letter by the rigor of the sweep. However, the irony is that the Book Publishers without considering the effect of such repeal print and publish the very same section or statute and sell out. It is a contempt of the Court decision as well as a misleading publication. S.303 prescribed punishment of death for offence of murder committed by a life convict. Section does not confer any alternate punishment other than death sentence. It was challenged before the Supreme Court on the ground that S.303 IPC violates the guarantee of equality contained in Art.14 of Constitution as also the right conferred by Art.21 that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discharge assaults by life convicts on the prison staff, but the Legislature chose language which far exceeded its intention. The section also assumes that life convicts are a dangerous breed of humanity as a class. That assumption is not supported by any scientific data. S.300 IPC defines murder and S.302 prescribed punishment for murder. S.302 says whosoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. Though there are about 51 sections in the Code which prescribed punishment of life imprisonment the difference between those sections on one hand and S.302 on the other hand is that whereas under those sections life imprisonment is the maximum penalty that can be imposed, under S.302 life imprisonment is the minimum penalty. The only option to a court which convicts a person of murder is to impose either the sentence of life imprisonment or the sentence of death. The normal sentence for murder is life imprisonment. S.354(3) of the Code of Criminal Procedure provides that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life, or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, special reason for such sentence. While upholding the validity of death sentence as punishment for murder, a Constitution Bench of the Supreme Court ruled in Bachan Singh's case (AIR 1980 SC 898) that death sentence can be imposed in a very exceptional class of cases, "the rarest of rare cases".

The Indian Penal Code was passed in 1860. The framers of the Code achieved a measure of success in classifying offences according to their subject matter, defining them, with precision and in prescribing what in the context of those times was considered to be commensurate punishment for those offences. One of the problems which they had to deal with was as to the punishment which should be prescribed for the offence of murder committed by a person who is under a sentence of life imprisonment. They solved the problem by enacting S.303. The reason or at least one of the reasons why the discretion of the court to impose a lesser sentence was taken away and the sentence of death was made mandatory in cases covered by S.303 seems to have been that, if even the sentence of life imprisonment was not sufficient to act as a deterrent and the convict was hardened enough to commit a murder while serving the sentence, the only punishment which he deserved was death. The severity of this legislative judgment accorded with the deterrent and retributive theories of punishment which then held sway. The Constitutional Bench of Supreme Court considered all these aspects to arrive at a decision as to whether S.303 infringes constitutional provisions in Mithu v. State of Punjab (1983 CRLJ 811 SC, or AIR 1983 SC 473). The judgment was delivered by Chief Justice Y. V. Chandrachud on behalf of the Bench in his deep and penetrating language. The Bench formulated certain important questions regarding this aspect. They are, is a law which provides for the sentence of death for the offence of murder, without affording to the accused an opportunity to show cause why that sentence should not be imposed, just and fair? Is such a law just and proper if, in the very nature of things, it does not require the court to state the reasons why the supreme penalty of law called for? Is it not arbitrary to provide that whatever may be the circumstances in which the offence of murder was committed, the sentence of death shall be imposed upon the accused? After elaborately discussing the questions, the Supreme Court declared S.303 void and ultra vires to the Constitution as it infringes right of equality contained under Art.14 as well as the right to life guaranteed by Art.21. The reason detre of the Supreme Court can be gathered from the following observations. "Death sentence has been made mandatory by S.303 in regard to a particular class of persons that, as a necessary consequence they are deprived of the opportunity under S.235(2) Cr. P.C. to show cause why they should not be sentenced to death and the court is relieved of its obligation under S.354(3) Cr. P.C. to state the special reasons for imposing the sentence of death". Supreme Court further observes that "whether there is any valid basis for classifying persons who commit murders whilst they are under the sentence of life imprisonment as distinguished from those who commit murders whilst they are not under the sentence of life imprisonment, for the purpose of making the sentence of death mandatory in the case of the former class and optional in the case of the latter class. We are unable to see any rational justification for making a distinction in the matter of punishment between these two classes of offenders".

On December, 11, 1972 a Bill was introduced in the Rajya Sabha to amend the Penal Code, one of the amendments suggested being that S.303 of the Code should be deleted on a motion made, the bill was referred to a joint Committee of Rajya Sabha and Lok Sabha. The Committee recommended that punishment for murder which was prescribed separately by Ss. 302 and 303 of Penal Code should be brought under one section. The Committee further recommended that it should not be obligatory to impose the sentence of death on a person who commits a murder while under the sentence of life imprisonment and the question whether in such a case the sentence of death or sentence of life imprisonment should be imposed should be left to the discretion of court. Committee accordingly suggested to omit S.303 from the Code. The report was presented before the Rajya Sabha on 29.1.1976. But what was proposed by the Parliament was disposed of by the ballot box. A mid-term, poll was held while the Bill was pending and there was a change of Government. The Bill lapsed and that was that. Thus S.303 was destined to die at the hands of the Supreme Court. 

The Repealing and Amending Act, 2001

Scope and Effect on S.138 of the N.I. Act, 1888 and all other Acts

Repealed by the Act

(By S.H. Jayakesan, Law Secretariat, Thiruvananthapuram)

Some misconcepts have been spread after the coming into force of the Repealing and Amending Act, 2001 (for short 'the Act') that dynamic provisions of law, like S.138 of the Negotiable Instruments Act, 1888 has ceased to be in force.

The Parliament has enacted the Act, for repealing a number of enactments and to amend some other enactments. As the Act intends to repeal a number of enactments, as also aims at amending some other enactments, it has got much significance, especially when we consider the existence of the provisions contained in the repealed Acts.

The Act received the assent of the President of India on the 3rd day of September, 2001. Though no commencement clause has been provided in the Act, by virtue of the provision contained in CI.(b) of sub-s.(1) of S.5 of the General Clauses Act, 1867, the Act shall be deemed to have come into force with effect from 3.9.2001, the day on which it received the assent of the President.

S.2 of the Act provides for the repeal of the enactments specified in the First Schedule to the extent mentioned in the fourth column thereof. S.3 of the Act provides for the amendment of certain Acts to the extent and in the manner mentioned in the fourth column thereof.

It is pertinent to note that the repeal in this case is a repeal of Acts making textual amendment in various Acts. In other words, the repeal does not cause in operation of the provisions in the amending Act concerned. Because the repeal has been saved under S.6-A of the General Clauses Act, 1867.

S.6-A of the General Clauses Act, 1867 provides that where any Central Act or Regulation made after the commencement of the General Clauses Act repeals any enactment by the express omission, insertion, or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

Intention of S.6-A of the General Clauses Act can be illustrated as follows:

If Act 'A' is textually amended by Act 'B', the repeal of Act 'B' by Act 'C does not destroy the amendment, unless there is a different intention. In other words, the section means that the formal repeal of an Amending Act leaves unaffected the amendment already made, unless there is a different intention. When a subsequent Act amends an earlier one, in such a way as to incorporate itself or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act and the old words have to be scored out, so that, thereafter, there is no need to refer to the amending Act.

Generally, the textual amendment made in a substantive Act is formally repealed by "Repealing and Amending" Acts, which is an usual legislative process. Repealing and Amending Acts are enacted from time to time in order to repeal enactments which have ceased to be in force or have become obsolete or the retention whereof as separate Act is unnecessary. But even after such repeal, the provisions contained in the repealed Act will continue to be in force, unless a different intention appears.

So, as done in this case, though Act No. 66 of 1988, videlicet, the Banking, Public Financial Institutions and Negotiable Instruments (Amendment) Act, 1988 has been repealed by the Act, the provisions therein will continue to be in force. Same is the position in the case of all the other Acts, repealed by the Act.

In 1969 Ker. L R 1075 (1082), it was held that the object of the repealing and amending Act is legislative spring-cleaning and they are not intended to make any change in the law.

In AIR 1965 Madh. Pra 43 (47) it was held that the rule of construction with regard to the effect of amendment is that a statute amended is to be understood in the same sense exactly as if it had read from the beginning thus amended.

In AIR 1950 Mad. 287 (288, 289) it was held that Law made before continues good unless intention to change apparent.

So, unless and until, circumstances may disclose a different legislative intention, i.e., an intention that after the repeal of the amending Act, the amendment shall not survive, then only the provisions in the repealed Act would be affected.

Thus, in this case, though the Acts specified in the First Schedule of the Acts are repealed to the extent mentioned in column (4) thereof, in the absence of a different intention, the repeal will not in any way affect the continuance of the amendment made by the Acts so repealed and in force at the time of repeal, including S.138 of the Negotiable Instruments Act, 1888.

Borrowed Garments Never Fit

- A Post Mortem of Madhu v. Saseendra 1

(By Salim Kambisseri, Deputy Director of Prosecution, Kollam)

Introduction

From ancient time onwards courts have been moiling and toiling in interpreting and applying man made laws. It is often said that no perfect draftsman is yet born and he can exist only in imagination. Francis Banian, a well-known drafts man who sarcastically said:-

"I am the Parliamentary draftsman, I compose the Country's laws and for half of the litigation in this Country, I am undoubtedly the cause."

Apart from other canon of construction the main rules are (i) Literal rule (ii) Mischief rule and (iii) Golden rule. Out of these the main, primary and basic rule is literal rule of interpretation.

According to this rule, phrases and sentences are to be given their ordinary meaning. As Maxwell2 observed "If there is nothing to modify alter or quality the language which the statute contain, it must be construed in the ordinary and natural meaning of the words and sentence".

The learned author further says3:-

"Where the language is plain and admits of one meaning, the task of interpretation can hardly be said to arise."

A decision of higher courts can either be slippery or accidental. But a decision inconsistent with the canons of construction is understood in the law of precedent as decision per incurium. The decision under study is an example.

Factual Anatomy of the case

'X' filed a complaint against 'Y' alleging the commission of offence under S.494 IPC. The learned Magistrate straight away despatched or to say vividly forwarded it to the concerned police station for investigation and report under S.156(3) Cr. P.C. The procedural action of the Magistrate was impugned on the ground that S.156(3) Cr. P.C. is not attracted, since S.198 says that no court shall take cognizance of the offence except upon a complaint made by the aggrieved person. A Division Bench of our High Court speaking through His Lordship Justice K.A. Mohammed Shafi upheld the action of the Magistrate. This decision under study is seemingly innocuous at first sight but unpalatable on mature consideration. Reasons are many.

Judicial Reasoning

The ratio of the above decision can be formulated as follows:-

1) A Magistrate has jurisdiction to forward a complaint under S.494 IPC, to police under S.156(3) Cr. P.C. even though there is prohibition in S.198 Cr. P.C. Contrary view taken by a single Judge in Ajithakumari v. State4 seems to be incorrect.

2) The final report filed by the police with respect to such an offence which is non-cognizable, can be treated as a complaint under S.2(d) Cr. P.C.

I do, with due respect, doubt the correctness of the principle of law enunciated by the Hon'ble High Court in this case. According to me since S.494 IPC is a non-cognizable offence barred by S.198 Cr. P.C. Court cannot forward the complaint to police under S.156(3) Cr. P.C.

S.198(1) Cr. P.C. reads as follows:-

198. Prosecution for offence against marriage- (1) No court shall take cognizance of an offence punishable under Chapter XX of Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence..." Chapter XX of IPC deals with

offences relating to marriage and S.494 comes under this Chapter.

Hon'ble Justice Padmanabhan in Ajitha Kwnari case (1986 KLT 7) held that court can take cognizance of the offence of bigamy punishable under S.494 IPC only on the complaint of a person aggrieved by the offence. It was also held that S.198 Cr. P.C. is a bar for investigation by the police under S.156(3) Cr. P.C, but an investigation under S.202 Cr. P.C. can be ordered. His Lordship Justice K.A. Mohammed Shafi, in the decision under discussion, held that he prefer to accept the reasoning in the decision Prasad v. Circle Inspector of Police5 than the view taken by the Single Judge in the Ajithakumari’s case. In Prasad v. Circle Inspector, His Lordship Justice Marimuthu has held that the bar under S.198A is not applicable for a case filed by the aggrieved lady under S.498A IPC, and the court is at liberty to send the complaint to police under S.156(3) Cr. P.C. and that there is no necessity for the Magistrate to forward the complaint under S.202 Cr. P.C. It is respectfully submitted that facts of that decision does not tally with that of the present case. In Prasad's case the offence alleged was S.498A IPC, which is a cognizable offence. In State of Orissa v. Sharat Chandra Sahu & Anr.6 Apex Court has taken the view that S.498A is cognizable, if it is filed by the aggrieved person.

It may be remembered that in the present case, admittedly the only offence alleged (S.494 IPC) is non cognizable. So the Magistrate is not empowered to send the complaint to police under S.156(3) Cr. P.C, since this section deals with cognizable offences only. S.156(3) Cr. P.C provides that a Magistrate who is empowered under S.190 Cr. P.C. to take cognizance can order investigation, if the offence is cognizable. Otherwise the Magistrate has to opt the procedure under S.155(2) Cr. P.C. which deals with non-cognizable offences. S.155(4) Cr. P.C. says that where a case relates to two or more offences of which at least one is a cognizable, the case shall be deemed to be cognizable case, not withstanding that the other offences are non-cognizable. Since S.494 IPC alone is alleged in this case, which is non-cognizable, the case cannot be forwarded to police under S.156(3) Cr. P.C. But Magistrate is at liberty send it for an investigation under S.202 Cr. P.C. after taking cognizance.

To cut the Goridan knot

In Paras 10 to 12 of the decision under study there is a detailed discussion about fate of the Police report filed in such situations. It is fully correct that the report of a police in a non-cognizable offence can be treated as a complaint under S.2(d) Cr. P.C.

Explanation to S.2(d) Cr. P.C. is as follows:-

2(d) Explanation:- "A report made by a Police Officer in a case which discloses after investigation, the commission of a non-cognizable offence can be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant."

When there is a bar against the Magistrate in taking cognizance of the offence except upon a complaint by the aggrieved person, how the report of a police officer can be treated as complaint in a case under S.494 IPC?

It is well settled proposition of law that by forwarding a complaint under S.156(3) Cr. P.C. the Magistrate does not take cognizance of the offence nor does he do it after taking cognizance of offence mentioned in the complaint. In Varghese v. Annamma7 His Lordship Justice K.T. Thomas held that the action taken under S.156(3) Cr. P.C. is previous to the stage of taking cognizance of the offence. Once he takes cognizance of the offence on a complaint as envisaged in S.190 of the Code, a direction can be made only under S.202 Cr. P.C. In short S.156(3) Cr. P.C. relates to pre-cognizance stage and S.202 Cr. P.C. is applicable to post-cognizance stage. In Suresh Chand Jain v. State of Madhya Pradesh8, also there is detailed discussion by the same Judge about the differences between an order for the investigation under S.156(3) and S.202 Cr. P.C. (para. 7).

In Varghese v. Annamma (1987 (1) KLT 104) there was a serious discussion about the application of S.198 Cr. P.C. In that case an old and aggrieved husband complained against his fifty year old wife, who eloped with a young man. The complaint was for offences punishable under Ss. 406,498 and 109 IPC. It was forwarded to the police under S.156(3) Cr. P.C. and a final report was also filed. It was held that the Magistrate has to take cognizance on the police report for offences under Ss.406 and 109 IPC only and that he has to take separate cognizance under S.498 IPC on the strength of the original complaint filed by the aggrieved person, by registering another case. It was also held in such situations Magistrate has to examine the complainant in the manner provided in S.200 of the Code.

In Para 3 of the above decision His Lordship Justice K.T. Thomas held:-

"There is no dispute, and it is not disputed either, that a Magistrate cannot take cognizance of the offence under S.497 or 498 of the Indian Penal Code on a Police report. S.198 of the Code is explicit in language that it imposes an inhibition against taking cognizance of any offence punishable under Chapter XX of the Penal Code "except upon a complaint made by some person aggrieved by the offence".

Since 494 IPC also belongs to Chapter XX, it is clear that a Magistrate is not competent to send a complaint under that Section under S.156(3) Cr. P.C. for investigation as there is a specific bar under S.198 Cr. P.C. and also for the reason that the offence is non-cognizable, but the Magistrate is at liberty to send the complaint for investigation under S.202 Cr. P.C. after taking cognizance.

Conclusion

The decision Madhu v. Saseendra has misconstrued Ss.156(3) and 198 Cr. P.C. and the interpretation of the said provision are not, it is respectfully submitted, correct. So this decision requires re-consideration.

________________________________________________________________________

1. Madhu v. Saseendra. 2000 (2) KLT 112 DB.

2. Maxwell: Interpretation of Statutes 12th Edn., page 28.

3. Ibid page 29.

4. Ajithakumari v. State, 1986 KLT 7.

5. Prasad v. Circle Inspector of Police, 1998 (2) KLT 442.

6. State of Orissa v. Sharat Chandra Sahu & Anr., AIR 1997 SCI Para. 9.

7. Varghese v. Annamma, 1987 (1) KLT 104.

8. Suresh Chand Jain v. State of M.P., 2001 Crl. L.J. 954 SC.

Tribunalisation of Justice Delivery System

(By N. Dharmadan, Senior Advocate)

Introduction

Administrative Law in India has very ancient origin. But its administrative unification and establishment of a hierarchy of Central, provincial and subordinate services were made during British Rule for the first time in the history. British Rule also established throughout the country a system of lower courts, district courts and High Courts with the culmination in the Federal Court and Privy Council.

Independence and Development

After independence there is extensive development of administrative process in India through planning and welfare activities covered by successive Five Year Plans, Establishment of a welfare State was the aim. The structure and powers of the administrative authority are undergoing rapid changes as a direct impact on these developmental activities carried out in India. A tremendous amount of legislative activity has been going on in this country ever since we attained independence and the Administrative Law continued to receive public attention. Though originally the State was treated as a "law and order" State with the primary responsibility of protecting the country from external aggression and maintaining law and order within the country, slowly it came to be recognised as a "social welfare State", with active role of working for the socio-economic development and for the welfare of the people.

The State made a conscious effort to transform the country into a welfare State after the independence. This resulted in the emergence of a plethora of Administrative Tribunals, Boards, agencies, some approximating very closely to the Court. There are also statutory bodies like the Railway Board, Transport Authority, Central Board of Revenue, Regional Transport Authority, Industrial Tribunal, Employees State Insurance Court, Railway Claims Tribunal, Workmen Compensation Tribunal, Tax Appellate Tribunal etc. All these statutory agencies are entrusted with the task of carrying on activities for the welfare of the people.

The Rights of the Citizens in a Welfare State:

The equality rights of the citizens, both men and women are protected by Fundamental Rights in Chapter III of the Constitution. Similarly their welfare is envisaged in Chapter IV, Directive Principles of State Policy. Though the provisions in Chapter IV are not enforceable and they lay dormant as far as the judicial development of law is concerned the Supreme Court started to enforce the Directive Principles of State Policy as if they are supplementary to Fundamental Rights.

Thus the progressive approach of the Supreme Court enabled the courts not only to administer law with a "negative approach" for correcting the Governmental actions viz., normal operation of judicial control, but also try to promote and adopt "positive policies" of promoting welfare of the people on rare occasions when the actions effecting vital issues concerning the affairs of the nation as a whole are brought to its notice.

Examples of Positive Policies

For the first time in Kesavananda Bharathi v. State of Kerala (AIR 1973 SC 1461) the 13 member Bench of the Supreme Court observed that both Fundamental Rights and Directive Principles aim at the same goal of bringing about a social revolution and establishment of a welfare state and they can be interpreted and applied together. In Sri. Sachidanand Pandey v. State of West Bengal (AIR 1987 SC 1109) Supreme Court held that the Court is competent to give directions on implementation of measures for the restoration of ecological balance resorting to the relevant provisions of Directive Principles of State Policy (Art.48A). The Supreme Court in Gri Kalyan Kendra Workers Union v. Union of India (AIR 1991 SC 1173) enforced the provisions of Art.39(d), which provides that there is "equal pay for equal work" for both men and women, giving it the status of a Fundamental Right. According to the Court these provisions have to be approached with full vigour. In Unnikrishnan v. State of Andhra Pradesh (AIR 1993 SC 2178) the Supreme Court stated that a right to rank as a Fundamental Right need not be expressly stated as a Fundamental Right. It was further held in Jilabhai v. State of Gujarat, (AIR 1995 SC 142), that the Fundamental Rights and Directive Principles are the two wheels of a chariot as an aid to make social and economic democracy a truism and that the Fundamental Rights and Directive Principles are supplementary and complimentary to each other and they are to be interpreted having regard to the Preamble of the Constitution which proclaims its commitment to Justice, Liberty and Equality.

This positive approach gives a new diamention to the judicial review of administrative actions.

Problems in Administrative Law

The problems arising in the Administrative Law have been subjected to comments from Judges, lawyers and jurists. The first comprehensive work on the subject was 'Judicial Control of Administrative Action in India' published by Dr. A.T. Markose in 1956. He made some suggestions for the general improvement of law in this field. The successive Law Commissions of India also pointed out the defects and proposed suggestions.

The Law Commission of India (14th report) recommended that:-

(i) Rules should be framed by the High Court to enable them to record evidence and determine the disputed questions of fact.

(ii) an appeal on facts should be provided from the judicial and quasi-judicial decisions to an independent ‘Tribunal’ presided over by a person qualified to be a Judge of the High Court, who may be assisted by a person with administrative and technical knowledge on the subject.

These recommendations were made by the Indian Law Commission, because the' Commission felt that the existing jurisdiction of the Supreme Court and High Court only enable them to examine the actions of the administrative bodies to the limited extent pertaining to law.

Though these directions were not accepted or implemented, either by the Courts or by the Government, considering the increased demands for further institutional safeguard against corruption and maladministration in the government departments, apart from constituting Vigilance Commission, an 'Ombudsman' system was introduced by the Central Government and various States like Kerala, Maharashtra, Bihar, Rajasthan, U.P. etc. But this institution did not yield desired result as envisaged in the recommendations of the Law Commission.

Administrative Tribunals

It is under these circumstances that the Central Government introduced Part XIV-A in the Constitution of India as per 42nd Amendment Act. The new Art.323-A and 323-B empowered the Legislature to make laws to set up the Administrative Tribunals with all power for its smooth working. The provisions in the above two Articles would override all other provisions of the Constitution and other laws which are contrary to the above law. Laws were passed for the establishment of Central Administrative Tribunals, Customs and Excise, Revenue Appellate Tribunals, Income Tax Appellate Tribunal, Debt Recovery Tribunal etc. for the effective and expeditious settlement of disputes and connected issues in the best interest of the people. So these two Articles open a new Chapter in the Indian Constitutional and Administrative Law, by substantially excluding judicial review of administrative decisions. The Supreme Court in Sampatkumar v. Union of India (AIR 1987 SC 386) and Chopra v. Union of India (AIR 1987 SC 357) held that the Administrative Tribunal Act provides for "an effective alternative institutional mechanism or authority" to the High Courts for judicial review. They are complete substitute for the High Court relating to service matters. Supreme Court in Union of India v. Deep Chand Pandey (AIR 1993 SC 382) held that the word 'all courts' in Art.323-A(2) and 323-B(3) includes the High Courts and the jurisdiction of these courts under Art.226 and 227 has been exclusively vested in the Administrative Tribunal set up under the CAT Act. In Patro H.N. v. Minister, Information Broadcasting (1992 supply (1) SCC 550) the Court held that no challenge to any decision of Administrative Tribunal, relating to the service matter, can be made before the High Court.

Change brought about by Chandrakumar's case

The Supreme Court made a through change in Chandrakumar v. Union of India (AIR 1997 SC 1125). The Court struck down clause 2(d) of Art.323-A and clause 3(d) of Art.323-B to the extent it excludes jurisdiction of the High Court and Supreme Court under Arts.226/227 and 32 respectively and directed the Central Government to make provision to bring all the Tribunals created by State Legislations and Parliamentary Legislations, under one "umbrella".

In other words an independent agency is directed to be set up by the Government under the Law Ministry for overseeing the working of these institutions, which can effectively supervise and control to maintain its efficiency. According to the court this will remove many of the "ills of present system".

Questions Considered in Chandrakumar's case

Three questions arose for consideration:-

(i) Whether powers under Art.323-A clause (2)(d) and Art.323-B clause (3)(d) would totally exclude the jurisdiction of all courts except the Supreme Court's jurisdiction under Art.136.

(ii) Whether the Administrative Tribunals can examine the constitutional validity of the statutory provisions or rules?

(iii) Whether the Administrative Tribunals are complete substitute for the High Courts in the matter of judicial review.

Answers to the Question

(i) First Question

It was argued that the Tribunal, being a new creation of the executive under a statute, cannot be equated with the High Court, which was in existence from 19th century as a constitutional court endowed with glorious judicial tradition. Therefore the powers of judicial review vested in the High Court cannot be ousted particularly when they are the constitutional courts, under Arts.32 and 226 and a part of the basic structure of the Constitution. This view got the support from Kesavananda Barathi's case (AIR 1973 SC 1461), Indira Nehru Gandhi's case (AIR 1975 SC 2291), Minerva Mill's case (AIR 1980 SC 1789) etc.

The Supreme Court in Chandrakumar's case held that the words "all courts" in Art.323-A(2)(d) and 323-B(3)(d) cannot be given a wide meaning so as to oust the jurisdiction of constitutional courts. Hence the court struck down these clauses to the limited extent of excluding the jurisdiction of the High Court and Supreme Court under Arts.226/227 and 32 respectively. It held further that the "exclusion of jurisdiction" in all other legislations "enacted under the aegis of Art.323-A and B would, to the same extent, be unconstitutional". So according to the Supreme Court the jurisdiction of High Court and Supreme Court to review the decisions of the Administrative Tribunals cannot be ousted.

(ii) Second Question

The Supreme Court in this case made it clear that since the Tribunals created under Art.323-A and B are performing "a supplemental role in discharging the powers conferred under Arts.226/227 and 32 of the Constitution"; they are competent to test the constitutional validity of statutory provisions and rule with a restriction that the vires of the provisions of the statute which created the particular Tribunal cannot be considered. In such cases the party will have to directly approach the High Court. The Supreme Court in coming to this conclusion followed the settled principle that the Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional.

(iii) Third Question

The Supreme Court held that the Tribunal is not a complete substitute of the High Court in all respect. Our constitutional system treats the power of judicial review of the High Court under Art.226/227 and Supreme Court under Art.32 as 'heart' and 'soul' of the Constitution and part of the basic structure and therefore their jurisdiction cannot be excluded. At the same time the Tribunals are competent to hear and decide all the disputes in service matters including the matters in which the vires of statutory provisions are questioned except when the vires of the parent statute is under challenge. So they cannot act as substitute for the High Court and Supreme Court for under our constitutional set up power of judicial review in all its aspects is entrusted with the constitutional courts only. The Tribunal is treated only as an original court in all matters over which they have jurisdiction. Their function is supplementary and all the decisions of the Tribunal will be subject to scrutiny before the Division Bench of the respective High Court within whose jurisdiction the Tribunal functions. Thus the Tribunals function as courts of first instance in respect of the areas of law for which they have been constituted and hence their position is not similar to the above constitutional courts.

Judicial Review

In Sampath Kumar's case it was held that the review jurisdiction of High Courts can be excluded by the decisions of the Administrative Tribunals provided that its composition contains judicial elements, ie., Judges. So when a judicial member is available in the Bench it is possible to oust the jurisdiction of the High Court and that the Tribunal can deal with service disputes of civil servants with all powers and jurisdiction of the High Court. But in Majumdar v. Union of India (AIR 1990 SC 2263), for the first time a Bench of three Judges held that the Administrative Tribunal cannot be equated with the High Court. In S.R. Bommai's case (AIR 1994 SC 1918) a special Bench consisting of nine Judges of Supreme Court held that the judicial review of acts done by executive or legislature is one of the basic structures of the Constitution and hence the imposition of President's rule in a State is justiciable to examine whether the conditions set out in Art.356 have been satisfied. It is now well settled that in service jurisprudence the authority has to apply the mind and act in a fair and reasonable manner in the disposal of all matters. In State of Punjab v. V.K. Khanna (AIR 2001 SC 343) the Supreme Court held that fairness is synonymous with reasonableness and on the issue of ascertaining the reasonableness in a given situation a common mans perception, ie., what is in contemplation of an ordinary prudent man and that, should be made a standard or basis for finally deciding the issue. This is a welcome development in the judicial review or decision making process.

However an application under S.19 of the Act had to be filed before the Tribunal only by a "persons aggrieved" in respect of matters referred to in S.3(q). In Duryodhan v. Jitendra Kumar (AIR 1999 SC 114), the Supreme Court made it clear that a total strength to the service cannot make an application before the Tribunal. So public interest litigation is not maintainable before the Tribunal. The reason is that "If public interest litigations at the instance of a stranger are allowed to be entertained by the Tribunal the very object of speedy disposal of service matters would be defeated. It is also to be noticed in this connection that the twin purpose of establishment of the Tribunals, as held in K.K. Dutta v. Union of India, (1980) 4 SCC 38, viz., "taking over part of the existing backlog and a share of the normal load of the High Court and arriving at a quick settlement of service disputes in the interest of public servant" has been now defeated because of the filing of cases before the High Court challenging almost all the decisions and order of the Tribunal including the interim orders.

Conclusion

Having regard to the above statement and the position created by the decision in Chandrakumar's case the recommendations of the "Malimath Committee" becomes very relevant. The committee recommended that the theory of 'alternative institutional mechanism' is to be abandoned and institutional change, as in England, is to be made within the High Courts by dividing them into separate divisions of law or branches of law and make appointment of more Judges to man the separate divisions or branches.

S.303 of Indian Penal Code - Publishing the Same in the

Statute is not Contempt

(By John S. Ralph, Advocate, Cochin)

I have read the article"A DEAD SECTION IN THE PENAL CODE STILL LIVES ON" published in the Journal section of KLT at Page 36 of 2002 (1) KLT. But it seems that the view expressed in the said article that the book publishers are still printing S.303 in the Indian Penal Code without obeying the dictum (and in contempt) of the Apex Court in Mithu v. State (AIR 1983 SC 474) is not correct. The Supreme Court can declare any law to be unconstitutional and strike it out. But the effect would be that it will not come into operation even if the same continues to be in the statute. The State or the Union or any person aggrieved or affected by the dictum can challenge the same before a larger Constitutional Bench and get it overruled. Then the law will again come into operation. The effect of the dictum above mentioned is that it is in force since it is not challenged before a larger Bench.

A similar example we will find in the Indian Divorce Act. In Mary Sonia Zacharia v. Union of India reported in 1995 (1) KLT 644 (FB) the Hon'ble High Court of Kerala held that in S.10 of the Indian Divorce Act the grounds available for the petitioner wife will stand independently of the word "adultery coupled with". And the effect was that a wife can present a petition for divorce on cruelty simpliciter. But it cannot go out of the statute book on two counts. First of all the law declared or interpreted by the High Court of a State would not be binding on other States since it is a Central Statute and it is needless to say its binding nature on the Supreme Court. The legislature later on decided to make amendments on the Divorce Act and now it has come into operation and the same will be followed by the courts subject to the approval of the constitutionality of any section in the amended statute. Till then the section was printed and published as it stood before the dictum of the court. In the same case which was reported in 1995 (1) KLT 130, Justice K.T. Thomas (as he then was) issued a direction to the Parliament to make necessary amendments in the Indian Divorce Act within six months from the date of the order. But it remained in the Parliament for more than a decade to make amendments in the statute. It further shows that the court cannot ask the Legislature to legislate on a particular subject.

The decision whether a particular section of law has to be continued in the statute book or otherwise has to be taken by the Legislature in its law making wisdom. The Court can declare the constitutionality of any law but cannot take it out of the statute. So the Court may be correct in declaring S.303 of the Indian Penal Code as unconstitutional but publishing the same in the statute book is not contempt and is also justified for the reasons above mentioned.