Cyber Crimes Ahead

(By Delvin Jacob Mathews, Advocate, Kochi)

Its been more than four years since the then Central Vigilance Commissioner N. Vittal rang a bell of caution regarding the evolution of Cyber Crime in India. Much has happened since then including the enactment of the Information Technology Act and even now, no cyber criminal in India seems to be worried about the law enforcement agencies and their work seems to be going on still so smoothly. Though countries like the U.S., U.K., etc. have their own extensive cyber law enforcement mechanisms, no agency in India, a country which is heralded as an Information Technology super power seems to take the evolution of cyber crimes seriously.

What is a cyber crime? No one seems to have evolved a fundamental definition for the term. Some experts believe that computer crime as it is otherwise called, is nothing more than ordinary crime committed by hi-tech computers and that current criminal laws on the books should be applied to the various laws broken, such as trespass, larceny and conspiracy. Some others view it as a new category of crime requiring a comprehensive new legal framework to address the unique set of challenges that traditional crimes do not deal with such as jurisdiction, international co-operation, intent and the difficulty of identifying the perpetrator. Eric, J. Sinord and William. R Reilly, the cyber law analysts from the United States seems to have a different view about it. They view cybercrimes in such a way that it has to be approached as both traditional crime committed by new methods and as crime unique in character requiring new legal framework. But all the varied opinions merge to opine that the cyber crime is one of the fastest evolving areas of criminal behaviour and a significant threat to our national security and economic safety.

The instinct of human brutality has been given a laser edge with the advent of technology. Computers cannot kill or injure a person directly but the indirect disaster that can be caused our lives and economy can be a mammoth figure if analyzed. The threat that cyber criminals can cause to human civilization has come out from celluloid or wild imaginations of a science fiction novelist into our lives and society. The 11th of September 2001 saw the turning point in the history of Internet and web related activities. The attacks on World Trade Center displayed an example of how terrorism has been conceived, planned and executed using the Internet. The ever increasing list of various headings in cyber crimes include but not only include hacking and cracking, extortion, child pornography, money laundering, fraud, forgery, scams, software pirating and corporate espionage. The law enforcement officials have been frustrated by the inability of the legislators to keep cyber crime legislation ahead of the fast moving technological curve.

Any discussions about cyber crimes would lead us to spare a thought for cyber criminals. Cyber criminals can range from teenagers who vandalize websites to terrorists who target a nation and everything in between. Cyber crime was once the domain of disaffected genius teenagers and now has become the battle ground for mature and sophisticated brains that seek to gain some vested illegal and dangerous aims. Cyber criminals like their non-virtual traditional criminal counterparts, seek opportunity and are attracted to vacuums in law enforcement and as has been previously stated, when legislators and law enforcement agencies find it extremely difficult to keep pace, the cyber criminal gets enough of that lacuna in law enforcement.

Further complicating cyber crime law enforcement is the area of legal jurisdiction. A typical cyber crime investigation involves multiple law enforcement agencies and multiple countries. Never before has it been so easy to commit a crime in one jurisdiction while hiding behind the jurisdiction of another. From the beginning of Internet, jurisdiction has continued to create challenges to legal minds, institutions and Governments in the context of the peculiar inherent character of the Internet. Different principles were being evolved in different national jurisdictions in this regard. Initially the courts all over the world considered mere access to the Internet as a sufficient ground for assuming jurisdiction over Internet related transactions. This principle was redefined by the 'Zippo Case' in the United States of America. The principles that evolved out of the 'Zippo Case' required the courts to look at something more than mere internet access in order to assume jurisdiction which would come in the form of interactivity of the website or any other factor.

Then in 2001, came the famous Yahoo! France case which redefined the principles of determination of jurisdiction in cyber cases. The facts of the case may be discussed as follows. Two groups in France complained to French Court that Yahoo! France's auction websites sold Nazi memorabilia which is banned under French law and requested them to be removed from the website. The French Court ordered Yahoo! France to remove all Nazi memorabilia and contents from its website, an order which was complied by Yahoo! France. But Yahoo! later moved an American Court for declaration that the directions given by a French Judge were not enforceable in the United States and that Yahoo! being an American company was not bound by the decision of the French Court. In a historical judgment, the American District Court of California held the contentions of Yahoo! to be valid and held that the French judgment was passed in peculiar facts relating to France and that such judgment would not be applicable in American Law on American citizens and legal entities. A judgment, which has got far reaching significance and consequences on the entire subject of cyber crime related territorial jurisdiction.

The scenario emerging after the September 11, 2002 attacks saw the adoption of the International Cyber Crime Treaty. 30 members of the European union apart from the U.S., Canada, South Africa and Japan have already signed the treaty. This becomes the first combined attempt by any nations for the regulation of cyber crimes and for the exchange of information concerning cyber crime and cyber criminals. Though the treaty is yet to be implemented, it promises to fill up the void about the need for having an international regulatory mechanism for the control of cyber crime.

The lack of law enforcement in cyber space is another big issue. Finding cyber criminals in various countries can be even more challenging than finding the person sending Anthrax through mail. Not all countries may agree upon all the issues relating to cyber crimes. The Governments worldwide view hackings and other cyber crimes in various perspectives.

Then comes the issue of prevention of cyber crimes. As has been established, prevention is better than cure. The most secure defense against cyber crime is to make sure that computers that run critical infrastructures are not physically connected to any other computers and to the Internet. Maintenance of clear and consistent security policies, installation of fire walls, use of alpha numeric passwords and frequent changing of them all will add their little bit in defending our cyber space. The legal fraternity in the country has got to move ahead and shall have to recognize the emerging challenges that might have to be faced in the future regarding cyber crimes. Successful criminal prosecution and civil litigation will require that members of the legal community familiarise themselves with the various hacking techniques to ensure that the perpetrators are tried and convicted under the relevant statutes. A misapplication of the law could allow a hacker to walk free.

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.

Quasi Repeal by Disuse

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

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

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

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

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

Indian Law

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

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

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

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

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

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

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

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

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

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

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

Concluding Notes.

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

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

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

________________________________________________________________________

Foot Note:

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

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

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

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

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

6. AIR 1979SC1459.

7. Id. p. 1473.

8. AIR1983 SC 46.

9. AIR 1996 SC 2856.

10.1931 Scots Law Times 456

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

12. AIR 1997 SC 2013.

13. Id., p. 2020.

14. (2002) 4 SCC519

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

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

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

A Comprehensive Study on 1990(1) KLT 120 and

the Relevant Statutory Provisions

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

A recent reference to the dictum laid down in the order in Manojkumar v. State of Kerala reported in 1990 (1) KLT 20 has resulted the necessity to have a meticulous reading of sub-s. (2) of S. 436 and S. 446-A of the Code of Criminal Procedure, 1973 (for short "the Code"). Though it was reported more than a decade ago, it appears that the decision may be the one curtailing the discretion of the Court or Police Officer (as the case may be) under sub-s. (2) of S. 436 of the Code to grant bail to the accused, who violated the conditions of the bail bond which once he had executed.

In the said case, scope and applicability of S. 446-A of the Code in relation to forfeiture of (he bond, which the accused had once executed and his release on subsequent appearance/ production was the main concern for decision. Accordingly, it was ruled that in cases involving bailable offences, if the bail is cancelled due to violation of the conditions of the Bond and on reappearance/production of the accused, the Magistrate will have to entertain the application for bail and grant bail in accordance with law. It was also observed in that case that there was no justification on the part of the Magistrate in refusing to accept the application for bail, since the offences involved were bailable.

But the above said position does not appear to be an appropriate or a full-fledged one in view of the provisions contained in the proviso to clause (b) of S. 446A of the Code, read with sub-s. (2) of S. 436 thereof. In other words, when we consider sub-s. (2) of S. 436 and S. 446-A of the Code together, it could be seen that even if the offences involved are bailable, on re-appearance of the accused on cancellation of the bond executed under the Code, the accused has no boundless right to get himself enlarged on bail and the Court has discretionary power in granting bail in such circumstances.

This position could be elucidated with the help of the above said two provisions, ie., S.446-A and sub-s. (2) of S. 436 of the Code.

"S. 446-A. Cancellation of bond and bail bond.-Without prejudice to the provisions of S.446, where a bond under this Code is for appearance of a person in the case and it is forfeited for breach of a condition-

(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and

(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:

Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient."

So, as disclosed by the proviso to clause (b) of S. 446-A of the Code, the right conferred on an accused to get himself enlarged on bail on reappearance is subject to such restrictions or conditions contained in the relevant provision in the Code.

Now, again coming back to the words "subject to any other provision" appearing in the above said proviso, we can find that sub-s. (2) of S. 436 of the Code has relevance in the matter of granting bail to an accused who had committed breach of the conditions contained in the bail bond.

Sub-s. (2) of S. 436 of the Code reads as follows:

"(2) Notwithstanding anything contained in sub-s. (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under S. 446".

Therefore, it is very clear that the right of the accused (of the nature mentioned supra) to get himself released on bail is subject to the provision contained in sub-s. (2) of S. 436 of the Code. If it was an unfettered right conferred on the accused, then, the provision, ie., proviso to clause (b) of S. 446-A would have been drafted excluding the words- "subject to any other provision", appearing therein and sub-s. (2) of S. 436 of the Code would not have found a place in the Code. Moreover, it is also pertinent to note that both the provisions, viz., S. 446-A and sub-s. (2) of S. 436 of the Code comes under the very same Chapter - XXXIII - Provisions as to Bail and Bonds.

In Johny Wilson v. State of Rajasthan (1986 Crl. L.J. 1235 Rajastan - DB) it was held that on forfeiture of the Bond, the accused has no right to be released on bail on his furnishing fresh securities. But it would be within the discretion of the Court to release him or not to release upon the execution of fresh persona! or surety bond.

In view of the above aspects, it may be concluded that an accused involved in bailable offence, who had violated the conditions of the Bond, which once he executed under the Code, has no absolute right to get himself enlarged on bail, when on a subsequent occasion in the very same case he appears before the Court or brought in custody. In other words, in such cases discretion of the Court, as provided under sub-s. (2) of S. 436 of the Code supersedes the right of the accused. But, the Court has to exercise the discretion in a judicious way. Hope that the earlier said dictum reported in 1990 (]) KLT 120 would be reviewed in future.

Hasten Slowly, My Lord!

(A Critique of Madhavan V. Narayana Das, 2002 (3) KLT 493)

(By S. Parameswaran, Advocate, High Court of Kerala)

I. This article is intended to drive home with force that although these sorts of cases may involve distinct substantive issues before courts, these implicate fundamental notions of rights of remedy in civil litigation and, therefore, these cases cannot be treated as isolated as one is normally prone to do. If the decisions are seriously flawed, replete with contradictory assumptions and inferences as in the present case, the impact will be far reaching and damaging. There is nothing wrong in the lawyers and the litigants expecting and it is realistic for both to do so the Judges to develop a coherent and integrated theory of interpretation to the extent to which the doctrine of interpretation adequately solved legal problems. By playing in this over­arching legal area, with respect, the decision under comment does not steer the lawyers and the litigants towards a particular answer or a plausible response. Whether one agrees with the opinion of Justice Basant or not, it is to be candidly admitted that the fodder this judgment gives the lawyers to chew as they confront the difficult, yet critical, question civil disputes raise, is, indeed, very valuable. It lays out the sorts of disputes they will, in all likelihood, eventually, confront, though it does not disclose the options available for resolving them. Despite the fact that the court can and, indeed, does use legal interpretation and current scholarship in various fields to broaden and expand the law, it is still a judicial body, not a think-tank. It lacks the capacity to seek out problems, the time or the venues to engage in any full scholarly analysis, and the authority to simply pronounce on questions as it sees fit. What the court can accomplish in initiating a discernible theory of interpretation must be judged in the context of the nature and the scope of its authority and the practical constraints under which it functions.

II.  In the welter of communication technologies, and unrestrained market place and post­modern ideals, law is increasingly becoming a spectacle, mimicking the style, techniques and logic of advertising and public relations, creating a dilemma as to how law will continue to function when interpretation of law at judicial hands results in a disconcerting unpredictability of litigation. American critics are merciless and pungent in their observation and reaction to the crafting of law by the Courts. In "Crafting Law on the Supreme Court; The Collegial Game" by Forrest Matzman, James F. Spriggs II and Paul J. Wehlbeck (Cambridge University Press 2000), the authors argue that at the heart of the process of crafting the law are policy seeking justices who are constrained by the choices made by the other justices. The authors argues by strategically using threats, signals and persuasion, Justice attempt to influence the behaviour of their colleagues on the Bench. Evidence derived from the recently released papers of the United States Supreme Court Justices Brennan, Douglas, Marshall and Powell is used to test the authors' theory of opinion writing. As a result, the portrait of the United States Supreme Court stands in sharp contrast to the conventional portrait where justices act solely on the basis of law or their personal policy preferences. Though it is true that the Indian Judicially crafts the law not exactly in the same manner as the United States Supreme Court, one has to be watchful that it does not ship into that shoddy path.

III. This writer also respectfully feels that the judgment does not even reflect what in American political theory is called 'offensive realism' which is that each one seeks to ensure his survival by maximising his share of power. At a time when, unfortunately, judicial functioning appears to have become a spectator sport often viewed with a cynical eye by the people, it is needful to be reminded that judicial freedom entails a civic responsibility to preserve the legal documents that confer jurisdiction on the judiciary. The litigant public as much as the lawyers have the right to protect themselves from interpretation, that go unreasonably beyond the original intent of the Legislature. We cannot forget that in the past, interpretation of statutes has been abused or at least carelessly used, to justify decisions made by the Legislature and the Judicial Branches of Government that have since been overturned. Decisions that extend the powers of the Courts beyond the expressly stated limits declared in and under the Constitution and the laws of the country remain the subject of intensely debated contentions even now. When a newly brought in amendment is inteipreted the frames and foundations of the principles of interpretation of statutes should be preserved.

IV. In good old days, it was permissible for the Judges to write to the Legislature and enquire what it meant where the language of an Act was ambiguous or contradictory. But happily enough, the practice is dead and gone and there is no chance of its revival. A Legislature cannot be asked to sit to resolve the difficulties (M/s. Girdharilal v. B.N. Mathur (AIR 1986 SC 1099). After Parliament has enacted the legislation, only the court may say what it meant to say; none else (M/s. Doypac Systems Pvt. Ltd. v. Union of India (AIR 1988 SC 782).

V. "The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself [Justice P.B. Gajendragadkar in Kannailal Surv. Paramnidhi Sadhukhan (AIR 1957 SC 907). As Justice Holmes of the American Supreme Court said in a letter "I only want to know what the words mean........their (Judges) function is merely academic, to begin with to read English intelligently. (Northern Securities Company v. United States (193 U.S. 197 at page 400). As the Privy Council observed in Pakkala Narayanaswamy v. Emperor (AIR 1939 PC 47) and the Supreme Court observed in Gurmeja Singh v. Sardar Pratap Singh (AIR 1960 SC 122) undoubtedly to the extent "the referent is clearly indicated and the words have a 'plain' meaning, the courts are not to busy themselves with 'supposed intention' or with "the policy underlying the statute".

VI. It was with excessive eagerness and intellectual curiosity that I watched for the first judgment by a new recruit of great promise and potentiality to the High Bench of Kerala. My expectation of delight descended into disappointment on reading Madhavan v. Narayana Das (2002 (3) KLT 493) delivered by Justice R. Basant. The amended provisions of the CPC, which amendment just got the Presidential assent, came in handy for the learned Judge for his adventurous incursion (or excursion) in an area, which has to be trodden with care, caution and circumspection. Interpretation of statutes, great legal minds have said, is a slippery slope, negotiating which has to be done slowly, sedately and soberly, for, you are handing down a judgment which may have a lethal effect on litigation, present or future. By a clever, but. not so correct, sleight of hand, Juslice Basant gave an interpretation of the amendment of the CPC by the 1999 and 2002 Amendment Acts, which dealt a coup de grace to attempts of getting judicial correction by the High Courts of the illegal intermediate orders of the Subordinate Judiciary.

VII. Whatever may have been the legislative intention in bringing about the amendment, which according to Justice Basant, is a reduction in the delayed delivery of justice, remember, neither the Legislature nor the Law Commission did or could make even a modicum of change in O. XXI of the Code of Civil Procedure with the result that the wailing of the Privy Council more than half a century ago that the headache of a litigant in India starts when he obtains a decree, rings with reverberating resonance even now.

VIII. The learned Judge observes in para 8 of his judgment, "between the category of interlocutory orders pure and simple and final orders stricto sensu lie a class of orders which can be termed as quasi final or intermediate orders. The Hon'ble Supreme Court has settled the controversy and has held that such intermediate - quasi-final orders are revisable notwithstanding the bar under S. 397(2) of the Criminal Procedure Code, they being not interlocutory orders. Decisions of moment affecting the rights of parties substantially cannot be reckoned as interlocutory orders so as to be beyond the Revisional Jurisdiction of the superior courts, it is now trite." Without batting an eye-lid and with bated breath as it were, the learned Judge says in para 12 of his order, "Borrowing terminology from the precedents laid down under S. 397(2) of the Code of Criminal Procedure, not only interlocutory orders but also intermediate orders are not amenable to the Revisional correction under the amended S. 115 of the Code of Civil Procedure. All available indications compellingly point to that conclusion -that only final orders siriclo sensu will be revisable."

IX. When one considers that the learned Judge admittedly takes his cue from the position of Revisional Jurisdiction under S. 397 of the Code of Criminal Procedure, 1973, the mutually contradictory approach in the judgment looms large demonstrating that logic runs helter-skelter making confusion worse confounded. If, as Justice Basant observes in the earlier part of his judgment referred to supra - and rightly so, intermediate orders are amenable to revisional jurisdiction in Criminal Law, by parity of reasoning, it should be so in Civil Law as well.

X. I am not forgetful of the rule in Haydon 's case reported by Lord Coke as far back as in 1584 or the words of the illustrious American Judge Learned Hand, "statutes should be construed not as theorems of Euclid, but with some imagination of the purpose that lies behind them" (Lehivalley Coal Co. v. Yensavate, 235 US 705 (1915)), or the words of Justice Krishna Iyer "the interpretative efforts must be illumined by the goal though guided by the word." (Smt. Kama Goyel v. B.G. Palhak, AIR 1977 SC 1599 at 1661), but these external aids do not have to be employed at the outset but have to be summoned when absolutely necessary into service by widening the concept of context.

XI. It is equally true that as Justice O. Chinnappa Reddy of the Apex Court observed in Reserve Bank of India v. Peerless General Finance & Investment Co. (AIR 1987 SC 1023), "Interpretation must depend on the text and the context. They are basis of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted". To quote Justice Holmes once again "You construe a particular clause or expression by construing the whole instrument and any dominant purpose that it may express. In fact intention is a residuary clause intended to gather up whatever other aids there may be to interpretation, beside the particular words and the dictionary (Cases and Other Materials on Legislation by Reid, Mac Donald and Fordham - Second Edition, page 1005).

XII. To put it pithily in the inimitable words of Justice Iyer, "to be literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite perception of the deha and clehi of the provision (Chairman, Board of Mining Examinations etc. v. Ramji, AIR 1977 SC 965 at 968). The correct interpretation is to harmonize the words of a statute with the object of a statute

XIII. Justice Basant seems to follow American Justice Scalia's theory of originalism which limits interpretation of statutes to the rights clearly in its mind at the lime of making it and leave all other questions to the Legislature, which is a double edged sword. This theory consigns all matters beyond a very limited few to decisions by the peoples representatives rather than by the Court. This interpretation sits uneasily, however, with Justice Scalia's elaborate apologia for the institution in his dissenting opinions. Justice Basant has repeatedly referred lo Legislative wisdom presumably on account of the longevity of the Legislature and the Civil Procedure Code. The dominant perception of the learned Judge appears to be the docket explosion in the Courts rather than the grievances of the litigants. It should have been borne in mind by the learned Judge that by monitoring and calibrating the functioning of the lower courts and also of the High Courts it will be possible to avoid a docket explosion. The judiciary's levelling of the litigant's playing field could be achieved that way rather than by bulldozing the avenues of approach of the litigants seeking redressal of their grievances.

XIV. I hope that this article will generate a very holistic debate with the cognizance of the big picture and the inter relatedness of the issues involved. Variances in the assessment of the courts opinions in this field may be attributable to differences in the perspective of the legal practitioners, academics and social scientists. For lawyers and Judges, the Court's task is to decide the particular dispute before it in a way that establishes sound precedent and provides sufficient guidance for lower courts. Quite unfortunately, the contradictory positions and postures adopted by the Court in the case under comment will not achieve this goal. The legal mind-set seeks workable adjudicatory standards, fair process, "bright live" principles which alone will be useful in guiding the lower courts decision making process.

XV. Legislation in modern State is actuated by some policy to curb some public evil; or to effectuate some public benefit and directed to the problems before the Legislature, based on the information derived from past and present experiences. In the words of Gray "The fact is that the difficulties of so-called interpretation arise when the Legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the Judge have to do is not to determine what the Legislature did mean on a point which was present in mind, but to guess what it would have intended on a point not present in its mind, if the point had been present". (Gray, Nature and Source of Law, 2nd Edition, Page 171). The 'guess' "must be informed by the wording of the Act and arrived at in accordance with the recognized guides to legislative intention" (Bennion, Statutory Interpretation, page 235). It is true that by a process of interpretation Judges do make a lot of law, but it is only the Legislature that can create law and therefore, judicial discretion cannot be unlimited. If it has no limits then the anomaly pointed out by Lord Atkin in Liversidge v. Anderson (1942 AC 206, 299) would arise. He said, "In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I".

XVI. Perhaps unwittingly, the judgment under review demonstrates an excessive, and not so deserving, deference of the judiciary to the elected branches of the Government, forgetting that the most lasting legacy of the Court is expansion of the protected rights of the litigants.

XVII. One wishes that in the spirit of the teaching left by Benjamin Cardozo, the Judges would provide facilitative reasoning that helps to ensure that the laws remain consistent with the times and advance the welfare of the society. It is necessary to .underline the importance of having a legal system that is attuned to the "reason and passion" of the day. Passion is best accommodated by freedom from subservience to an obsession with docket explosion. Appeals to the "Original intentions" of the authors of legislation can easily end up restraining the pursuit of current desires. The potentially corrosive effect of the decision on the fate of litigation in the court below is yet to be seen and realised.

XVIII. A careful, though critical, review of judicial opinion tendered by the High Bench will not only result in heightened appreciation of the dignity of the courts, but should supply some important insights into the impulses that define the modem judicial psyche. It is impossible to read the judgment of Justice Basant without being struck by the analytical bend of mind of the newly appointed Judge and his judgment appears to be free from the shackles of judicial restraint. The fact that the Judges of the higher rung actively participate or seek to participate in the process of establishing the way of life of the community cannot be under-emphasized and Justice Basant's decision attempts to make a provocative contribution to such an exercise. As Justice Brennan of the US Supreme Court said (Brennan, Modernising The Courts, 4-5 (1957) quoted in Jurisprudence of Justice - William J. Brennan Jr. Edited by David E. Marion Rowmand - Little Field Publishers Incorporated, Lanham 1997) "the sublime mission of the legal profession required that the Judges in the legal'field should not rest until we have done everything within our power" to ensure that the judicial system does not purview to the denial of rights or perpetuate suffering due to unredressed injuries. By placing a gloss of legislative intention on the statutory provision, the learned Judge has rendered the provision useless and indefensible; one expected from the Judge and desired to legitimate judicial action that accommodated the rights oriented interpretation and import. Indeed, incombatant judicial vigilance in the service of mitigating dangers to the litigant is the only acceptable posture consistent with the judicial oath. The judiciary on its faithful judicial oath will not be neutral in the vision of preferences and practices that impose disability on the litigants and expose them needlessly to action that threatened their interests. Even if unintentional, the judgment constitutes a harm that is incompatiable with the judicial objective of libertarian dignity.

XIX. It would be unfair and even mean-minded to belittle Justice Basant's efforts or to attribute motives to his interpretation. Indeed, his opinions were painstakingly crafted to advance a jurisprudential philosophy that underlines the doctrine of audi alteram partem. The judgment combines the theme of ambitious judicial review and the legitimacy of loose constructionism which one associated with Marbury v. Madison. What is needed in the modern context is a rights-oriented jurisprudence that legitimates broad-ranging decision-making by judicial officers.