Quo Vadis Article 141

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

"The law declared by the Supreme Court shall be binding on all courts within the territory of India", is the mandate of Art.141 of the Constitution of India. The scope of this Article itself has been the subject of several decisions of the Supreme Court. A seven-Judge Bench, in Moti Ram, held that the observations in the judgment of the Supreme Court which are in the nature of obiter dicta cannot be relied upon solely. A three-Judge Bench, in Gasket Radiators, held that the Supreme Court's decisions should not be followed generally like statutes irrespective of their fact situations. "Nor can be read a judgment", observed the Supreme Court, "on a particular aspect of a question as a Holy Book covering all aspects of every question whether such questions and facets of such questions arose for consideration or not in that case". The Supreme Court has also ruled, in more decisions than one, that there is no law declared where the court gives no reasons.

Recently, a two-Judge Bench of the Supreme court, in Suganthi, (2002 (1) KLT 581 (SC)), has chastised a learned single Judge of the High Court of Kerala for violation of the mandate in Article 141. Pronouncing the judgment on behalf of the Bench, Mr. Justice K.T. Thomas, faulted Mr. Justice T.M. Hassan Pillai of the High Court of Kerala for committing an impropriety by expressing that a legal direction of the Supreme Court should not be followed by the Subordinate Courts in Kerala.

As the mandate in Art. 141 is not binding on me, I make myself bold to assert, with respect though, that the High Court was right, and the Supreme Court was wrong in finding that the High Court was wrong; Mr. Justice Hassan Pillai was not wrong; Mr. Justice K.T. Thomas was not right.

In Rajendran v. Jose (2001 (3) KLT 431), Mr. Justice T.M. Hassan Pillai was considering the cumulative effect of Ss.357(3), 421 and 431 of the Code of Criminal Procedure. S.357(3) says:

"When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced."

S. 421(1) may be read:

"421. Warrant for levy of fine.-(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may –

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:

S. 431 reads as follows:

"Any money (other than a fine) payable by virtue of any order made under this Code, and the methods of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that S.421 shall, in its application to an order under S.359, by virtue of this section, be construed as if in the proviso to sub-s. (1) of S.421, after the words and figures "under S.357", the words and figures "or an order for payment of costs under S.359" had been inserted."

After noticing S.357(3) and S.431 of the Code, Hassan Pillai, J. observed as follows, in paragraph 3 of the judgment:

"Two ways provided for the recovery of fine under S.421 Cr.P.C. are: (a) issue warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender (here in this case, the revision petitioner) and

(b) issue warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both, of the defaulter. The Court is empowered to recover the compensation awarded by taking action in either or both of the above stated two ways. So, default clause imposed by the learned Sessions Judge i.e. to undergo imprisonment for six months in case of commission of default in payment of compensation awarded cannot be sustained or salvaged and the court below (trial Magistrate) is to take steps to recover the compensation awarded as provided under S.421 and 431 Cr.P.C."

After observing as above, the learned Judge said, in paragraph 4:

"The learned Sessions Judge imposed sentence in default on the basis of the observation made by the apex court in Hari Kishan (or Hari Singh) & State ofHaryana v. Sukbir Singh (AIR 1988 SC 2127), that court may enforce the order by imposing sentence in default. It appears that while disposing of that appeal attention of apex court was not drawn specifically to the provisions of S. 431 Cr.P.C. providing for recovery of money (other than fine) payable by virtue of any order made under the Criminal Procedure Code. In a later decision (Balraj v. State of U.R, AIR 1995 SC 1935) the Supreme Court directed that "if the appellant fails to pay this amount within three months from today, the same may be collected as provided under S.431 Cr.P.C. and be paid to PW2. Compensation of Rs.10000 was awarded by the Supreme Court by way of compensation to PW2. This Court in Siby v. Vilasini (1998 (2) KLT 462) took the view that "provisions contemplated in Ss.431 and 421 Crl.P.C. are conspicuously clear that amount of compensation awarded under S. 357(3) can be recovered under the Revenue Recovery Act."

The case before the Supreme Court, in the decision reported in 2002 (1) KLT 581 (SC) (Suganthi), was one relating to a prosecution for an offence under S. 138 of the Negotiable Instruments Act. The trial Magistrate sentenced the accused to undergo imprisonment till rising of the Court and pay a fine of Rs.5000/-. The complainant filed the appeal before the Madras High Court on the premise that the sentence was grossly inadequate. He had contended before the High Court that the trial Magistrate should at least have invoked the provision under S.357(3) of the Code of Criminal Procedure. However the High Court was not inclined to interfere with the sentence passed nor did the High Court invoke S.357(3) of the Code. The Supreme Court was approached in these circumstances.

No question akin to the question involved in Rajendran arose in Suganthi. The Supreme Court found that the sentence imposed in the case was inadequate and remitted the case back to the trial court for passing appropriate sentence on the respondent after hearing both sides.

In Suganthi, K.T. Thomas, J., while referring to the observations in Bhaskaran (1999 (7) SCC 510) to the effect that the Magistrate in a case like that in hand can alleviate the grievance of the complainant by making report to S.357(3) of the Code of Criminal Procedure, referred to Hari Singh case, to which reference had been made in Bhaskaran. In Bhaskaran, reference to Hari Singh was in paragraph 31 alone. Paragraph 31 may be read:

"However, the Magistrate in such cases can alleviate the grievance of the complainant by making resort to S.357(3) of the Code. It is well to remember that this Court has emphasised the need for making liberal use of that provision (Hari Singh v. Sukhbir Singh). No limit is mentioned in the sub-section and therefore, a Magistrate can award any such as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider which would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of a Magistrate of the First Class in respect of a cheque which covers an amount exceeding Rs.5000 the Court has power to award compensation to be paid to the complainant."

Paragraph 11 of the judgment in Hari Singh quoted by Thomas, J. In Suganthi was not the relevant aspect considered in paragraph 31 in Bhaskaran. (Mr. Justice K.T. Thomas should have known it better, as his Lordship himself had rendered the judgment on behalf of the two-Judge Bench in Bhaskaran.) Therefore, for the purpose of deciding Suganthi, Rajendran was not relevant. But Thomas, J. referred to Rajendran and said that the learned Judge who decided Rajendran has directed that the decision of the Supreme Court in Hari Singh is not to be followed as the Supreme Court laid down the said legal position without adverting to S.431 of the Code. Hassan Pillai, J. did not issue any such direction in Rajendran. Hassan Pillai, J. had noticed Hari Singh as also another decision of the Supreme Court in Balraj (AIR 1995 SC 1935) in which the Supreme Court had held that if the appellant fails to pay the amount of compensation, the same may be collected as provided under S.431 of the Code. Therefore Hassan Pillai, J. followed the correct later decision of the Supreme Court, noticing that the earlier decision in Hari Singh did not notice the provisions of S.431 of the Code when the Supreme Court made a passing observation that "the Court may enforce the order by imposing sentence in default". Hari Singh was decided by a Bench of two Judges. Balraj was also decided by a Bench of two Judges; but it is a later decision. There was nothing wrong in Mr. Justice Hassan Pillai following the decision in Balraj when the earlier decision in Hari Singh did not accord with the later decision. I should think that the following observation in Suganthi is unkind and unnecessarily vehement:

"Hence learned single Judge of High Court of Kerala has committed an impropriety by expressing that the said legal direction of this court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose, 2001 (3) KLT 431. It is unfortunate that when the Sessions Judge has correctly done in a course in accordance with the discipline the single Judge of the High Court has incorrectly reversed it."

Draft Art.117, which is now Art.141, was introduced, discussed and passed in the Constituent Assembly of India, on the 27th May, 1949. From the speeches of Shri. H.V. Kamath and the Hon'ble Dr. B.R. Ambedkar, it would be evident that the Supreme Court was not considered infallible, unlike the House of Lords, and it was therefore that the Supreme Court was not sought to be bound by the decisions of the Supreme Court. The Supreme Court overruling its own decisions, till then followed by all Courts in India, are galore. Who knows the fate of Suganthi ! Quo Vadis Art.141 !

Tail-piece: Some awkward decisions are so 'distinguished' that they are never followed at all: Ronald Irving.

Increment and Penalty

(By O. V. Radhakrishnan, Advocate, Ernakulam)

The word increment' the Latin term of which is 'incrementum' means 'an ascending towards a climax'. It is not defined either in the Fundamental Rules or in the State Service Rules. Fundamental Rules 24 provides that an increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by the Central Government or by any authority to whom the Central Government may delegate this power under R.6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments. R.31 Part-I of the KSR is pari material with FR 24 Note 1 under R.31 provides that an official shall not be eligible for an increment unless he has acquired the obligatory departmental test qualification, if any, prescribed by Government from time to time to earn the increment. Note 2 thereunder provides that a competent authority may order the deferring of the increment of an officer pending investigation into his conduct or performance of work in disciplinary cases. Such deferring of increment will not be construed as 'withholding of increments' under the Kerala Civil Services (Classification, Control & Appeals) Rules, 1960. FR 25 which is in pari materia with R.32 Part I of KSR also empowers the competent authority to withhold increments next above an efficiency bar prescribed in a time-scale. Withholding of increments simpliciter is also a prejudicial order in the sense it deprives earning of increments by the Government servant which is a statutory right and 'Acting fairly' doctrine is applicable to such cases.

The provisions regarding withholding of increments in the Fundamental Rules and other Service Rules are made as terms of service and cannot be construed as a penalty. However, withholding of increments is also prescribed as a penalty. Thus in certain cases, withholding of increments can be enforced as a term of service and in other cases as a penalty. In both the cases, 'withholding of increments with cumulative effect' when imposed, the employee is reduced in his time-scale and it is in perpetuity during the rest of the tenure of his service. The legal effect of it is as contemplated under R.11 (v) of the CCA (CC & A) Rules and R.1 l(iii) of the KCS (CC & A) Rules. The seminal issue of general importance that arises is whether withholding of increments with cumulative effect can be imposed without holding a full dressed enquiry as contemplated by the Rules for imposing any of the major penalties.

The question posed above is no longer res integra. A three Judge Bench of the Hon'ble Supreme Court in Kulwant Singh Gill v. State of Punjab reported in 1991 Supp. (1) SCC 504 has emphatically held that the insidious effect of an order imposing the penalty of withholding of increments with cumulative effect is as envisaged under R. 5(v) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 which is identically worded as R. 1 l(v) of the CCS (CC & A) Rules and R. 1 l(iii) of KCS (CC & A) Rules. A penalty of withholding of increment with cumulative effect imposed without holding an enquiry is without jurisdiction or authority of law and it is per se illegal. The decision in Kulwant Singh Gill's case has been followed in Mohinder Singh v. State of Punjab andOrs., reported in 1995 Supp. (4) SCC 433. The law thus declared in the above two decisions hold the field.

Be that as it may, the above decision was distinguished by a two Judge Bench of the Hon'ble Supreme Court in the decision in Executive Director Syndicate Bank and Ors. v. K. C. Arya and Ann, reported in 1996 (II) LLJ 727, solely on the ground that Regulation 4(b) of the Syndicate Bank Officer-Employees (Discipline and Appeal) Regulations, 1976 expressly prescribes that withholding of increment with cumulative effect is a minor penalty which was not so in R.5(iv) as emphasized in Kulwant Singh Gill's case. It went on to hold that in so far as the Regulations are considered, withholding of an increment with cumulative effect is to be treated as a minor penalty and the imposition of the said penalty by following the procedure prescribed for imposition of minor penalties cannot be held to be in violation of the regulations. In that decision the Hon'ble Supreme Court did not correctly approach the issue and failed to consider the blighting effect of withholding of increments with cumulative effect on pay, pension and other retiral benefits as expounded in Kulwant Singh Gill's case. No declaration of law is made in that decision. The inescapable conclusion is that withholding of increments with cumulative effect by way of enforcing a term of service or by imposing the same as a penalty, whether classified as a minor or a major penalty, has the characteristic and consequences of a major penalty.

In the decision in M. Devaki v. State, reported in 1994 (2) KLJ 808, while dealing with R. 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, it has been held that the Note under R. 1 l(l)(iii) added by GO/(MS) 70/PD as amended by SRO No. 378/80 is absent in the Punjab Rules and by that Note it is made clear that withholding of increments, even on a permanent basis would fall within the category prescribed in No. (iii) of R. 11(1) (Minor Penalty). The decision proceeded on the basis that under the Kerala Rules, formal enquiry is contemplated only in regard to the penalties specified under Item (v) onwards and that the penalty imposed on the petitioner therein fell under Item (iii) and hence there is no scope for contending that a formal enquiry was sine qua non before the penalty was imposed. The above decision was rendered overlooking the 'insidious effect' of withholding of increments with cumulative effect, construed by the Apex Court in Kulwant Singh Gill's case and does not lay down the correct law on the point.

The judgment of S. Sankarasubban, J. in Sahadevan v. State of Kerala reported in 1997 (2) KLT 150 rendered following 1991 Supp. (1) SCC 504 is clearly right. In the decision in State of Kerala v. Ranganathan reported in 1997 (2) KLT 121, the penalty that was imposed on the respondent was withholding of increment for a period of one year without cumulative effect and a Division Bench of the Honourable High Court did not accept the contention that though the withholding of increment imposed on the respondent was without cumulative effect, it operated in the circumstances as a major penalty resulting in reduction of the last pay drawn by him and affecting marginally his pension. The above Bench decision did not strike a different note on the point.

The recent decision in Pushkaran v. State of Kerala reported in 2002 (1) KLT 384 is hit by the ratio of the decision in Kulwant Singh Gill's case to the extent of holding that withholding of two increments with cumulative effect is not a major penalty and that the procedure prescribed in R.17(l)(b) which applies only to imposition of major penalty is inapplicable. The decision of the Apex Court in Kulwant Singh Gill's case was not directly brought to the notice of the Learned Judge and no arguments seem to have been advanced on the basis of the 'insidious effect' of withholding of increment with cumulative effect, based on which the Apex Court concluded that it amounted to a major penalty, imposition of which without enquiry is perse illegal.

The article titled 'Comment on 2002 (1) KLT 384' does not appear to have been written after an assiduous research on the case law for, the later decision of the Apex Court and the decisions of the Hon'ble High Court of Kerala distinguishing the decision in Kulwant Singh Gill's case were not referred to or commented upon.

The Rules have not been amended or altered in the light of the declaration of law made by the Hon'ble Supreme Court in Kulwant Singh Gill's case even after a decade. The Rules that are found to be retrograde and against developing concepts, necessarily have to undergo swift changes as otherwise, the law would be failing in its task of enforcing the standard of the operative principle of Rule of Law.

Fine and Compensation

The Law declared by the Supreme Court

(By V.K. Sathyavan Nair, Kottayam)

No doubt the High Court cannot sit in judgment over what the Supreme Court said. It is also impermissible, as observed in Suganthi v. Jagadeeshan, 2002 (1) KLT 581 (SC), for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. The Apex Court was expressing its disapproval of the course adopted by the Kerala High Court in Rajendran v. Jose (2001 (3) KLT431). In that case the High Court set aside partly an order passed by the Sessions Court directing an accused to undergo simple imprisonment for a period of six months in case of committing default in payment of compensation awarded. The High Court did not follow the observations made in Hari Kishan and State ofHaryana v. Sukhbir Singh, AIR 1988 SC 2127. Now the moot question is what is the law declared by the Supreme Court in Hari Kishan's case. Did the Apex Court interpret S. 431 of the Code of Criminal Procedure and declare the law?

Hari Kishan's case

One of the points considered by the Supreme Court in Hari Kishan's case is the correctness of the sentence passed by the High Court. The relevant portion of the sentence reads as follows:-

"I suspend their sentence under Ss.325/149, 323/149 and S.148 IPC and order that the appellants namely Sukhbir Singh, Dhanpal, Mannu, Sirichand and Ompal be released on probation on their entering into bonds of Rs.3000/- each with one surety in the like amount for a period of one year, to the satisfaction of the trial court, undertaking to appear in the Court to receive the sentence during the said period whenever called upon to do so and in the meantime to keep peace and be of good behaviour. However, each one of the appellant would pay Rs.2,500/- as compensation payable to Joginder, injured. Compensation if not paid within two months, the appellants, namely Sukhbir Singh, Dhanpal, Mannu, Sirichand and Ompal would be called upon to serve their sentence".

The expression 'instead of sentencing him' used in the provisions governing release on probation indicates that the order of probation can be passed after conviction, but before awarding the sentence and in substitution of it. If the sentence is once awarded, no order for probation can be passed thereafter. Where an offender is released on probation the imposition of fine is illegal. So the direction to pay compensation to the injured was one of the conditions for release on probation.

The Supreme Court upheld the correctness of the order, but enhanced the quantum of compensation and the counsel for the appellants expressed his willingness to pay any amount as determined by the Court. The compensation was enhanced to Rs. 50,000/-. The Supreme Court modified the order only to the extent of compensation and in all other respects the order of the High Court is kept undisturbed.

While discussing the question of compensation the Supreme Court has recommended to all the courts that the power to award compensation may be liberally exercised to meet the ends of justice in a better way and to make the criminal justice system meaningful. The Supreme Court has also laid down some guidelines to fix the compensation fairly and reasonably. These observations are contained in paragraphs 10 and 11 of the judgment in Hari Kishan's case. The last sentence in paragraph 11 reads: 'The court may enforce the order by imposing sentence in default'. This passing observation has to be understood with reference to the context and reading the judgment as a whole.

Fine and Compensation

It cannot be disputed that there is a distinction between fine and compensation. The two concepts have entirely different connotations. Fine is a mode of punishment prescribed under S.53 IPC that can be imposed on the offender on conviction. In some cases it is the only punishment. Sentencing an offender to pay fine is governed by Ss. 63-70 of the Indian Penal Code.

Awarding compensation is not a punishment envisaged by Indian Penal Code. Compensation to victim is exclusively governed by Ss.357, 358, 359 and 431 Crl.P.C. Under S.357(1) an order to pay Compensation out of the fine recovered can be passed by the Court.

(a)     to the complainant for meeting expenses properly incurred in the prosecution.

(b)     to any person who has suffered loss or injury by the offence when he can recover compensation in a civil court.

(c)     to a person entitled to recover damages under the Fatal Accidents Act; and

(d)     to a bonafide purchaser of property which has become the subject of theft, criminal misappropriation, criminal breach of trust, cheating etc.

Sub-s.(3) of S.357 enables the court to order payment of compensation even in cases where substantive sentence of imprisonment only is awarded.

Compensation to persons groundlessly arrested

S.358 Cr.P.C. provides for compensation to persons groundlessly arrested. It is expressly provided under sub-s.(3) that compensation awarded under S.358 may be recovered as if it were a fine and if it cannot be so recovered the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days.

Costs in non-cognizable cases

S.359(1) empowers the court to order payment of the entire cost that may have been incurred by the complainant. The said section governs payment of cost in non-cognizable cases. It is also expressly provided under S. 359(1) that in default of payment the accused shall suffer simple imprisonment for thirty days. There is no such default clause in the case of sub-s. (3) of S. 357 where the Court is empowered to order payment of compensation.

Warrant for levy of fine

S.421 Cr.P.C. applies when the offender is sentenced to pay a fine. Fine should be recovered by distress and sale of both moveable and immovable properties. Generally an offender ought not to be required both to pay the fine and to serve the sentence in default. Some exceptions are given in proviso to sub-s. (1) of S.421 and one such exception is where there is an order for the payment of expenses or compensation out of the fine under S.357. Under S.431 any money other than a fine can be recovered as if it were a fine. Proviso to S. 431 says that an order for payment of costs under S. 359 is also an exception to the general rule that an offender shall not be required to pay the fine and to serve the sentence in default. Even if the offender has undergone the whole of such imprisonment in default, amount may be recovered from him, in the case of an order for the payment of expenses or compensation out of the fine under S. 357 or in the case of an order for payment of costs under S. 359.

S.431 Cr.P.C.

A close reading of these relevant Sections would indicate clearly that the Code of Criminal Procedure does not envisage imposition of imprisonment in default of payment of compensation ordered under sub-s.(3) of S.357. S.431 regulates the execution of the orders relating to payment of any money other than fine. This is the long standing and consistently affirmed legal position.

What is 'the law declared?'

Arts.141 and 142 are designedly made comprehensive to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do complete justice. But it is the law declared by the Supreme Court that binds the courts and not judgment. A decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.

In the course of judgment the court may advert to various observations not precisely relevant to the issue. The fundamental motion is that the law should result from being applied to live issues and argued on both sides. It is not unlikely that dicta of Judges who are masters of their fields enjoy greater acceptance and prestige than the ratioes of lesser Judges.

True that principles of 'obiter', 'per incuriam' and 'distinguishable on facts' which may perhaps apply to the decisions of courts of co-ordinate jurisdiction cannot be applied to a declaration of law made by the Supreme Court and such principles cannot restrict the scope of Art.141. Nonetheless the Apex Court itself has stated that the observations of the Supreme Court should not be read as statutory enactments. No doubt the law declared by the Supreme Court binds courts in India but it has to be remembered that the Supreme Court does not enact (AIR 1965 SC 1887). When a question was never required to be decided an observation thereon cannot be held to declare the law binding on all courts in India (AIR 1961 SC 915). However a passing casual observation is not entitled to same weight as even obiter dictum.

'Declared' means made clear or manifest. Interpretation, ascertainment and evaluation are parts of the process of declaration. With the deliberate intention of settling the law the Supreme Court shall pronounce upon the question. Then only the process of declaration is completed.

The law declared in Hari Kishan 's case

In Hari Kishan's case, the Supreme Court did not consider the scope of S.431 Cr.P.C. That question was never required to be decided in that case. The construction of S.431 Cr.P.C. was not strictly necessary for the disposal of the case. There is not even a reference to S.431 Cr.P.C. The High Court released the accused on probation and one of the conditions was that compensation if not paid within two months the accused would be called upon to serve their sentence. The Supreme Court upheld the order modifying the quantum of compensation and the court had no occasion to consider the interpretation of S.431 Cr.P.C. True that there are some guidelines to quantify the compensation and also a recommendation to the Courts to use the power to award compensation to victims liberally. The Courts are bound to follow them scrupulously. But there is no declaration of law regarding the interpretation and scope of S.431 Cr.P.C. on a reading of the judgment in Hari Kishan's case as a whole it can be seen that the last sentence in paragraph 11 is only a passing casual observation and not a declaration of law that the court can order imprisonment in default of payment of compensation in every case.

It is an observation made without adverting to well-accepted principles and the plain and literal interpretation of S.431 Cr.P.C. The clear language of the Section is capable of only one meaning, namely that any money other than fine can be recovered in the manner provided in the Section. It cannot be said that Hari Kishan's case is an authority binding on courts in construing and applying S.431 and allied provisions of Cr.P.C. and ordering imprisonment in default of payment of compensation in all cases.

The decision in 2002 (1) KLT 581 (SC)

The decision rendered by Supreme Court in Suganthi v. Jagadeeshan has not considered the above material aspects. It seems 2001 (3) KLT 431 is overruled mainly inspired by judicial discipline. It is submitted that the legal proposition that the court may enforce an order to pay compensation by imposing sentence in default as laid down in 2002 (1) KLT 581 (SC) requires reconsideration.

Is There Room for an Indian Legal Theory?

(By Dr. Werner F. Menski, SOAS, London)

The troubling observation that Indian legal reality and Indian legal teaching do not match - and in fact seem to have grown further apart since Independence - has engendered a sense of crisis and sparked off important self-reflections among some law teachers in India. There appears to be an urgent need to be vigilant and radical in developing suitable methodologies for teaching law at Indian law schools. There is definitely a need for critical rethinking of the entire field of legal pedagogics, which has to be comprehensive and deep, otherwise it will remain another token gesture that fizzles out in empty rhetoric.

As market leader in the field of legal education in India, the NLSIU has certainly an important role in promoting critical thinking about law itself and methods of legal education, and it has taken up the challenge through internal processes of consultation and deliberation under its inspiring new leader, Professor Mohan Gopal. I share his intense interest in these methodological questions, because at SOAS in London, another market leader in the same field, we pursue comparative legal education and have been engaged in fierce debates over the direction in which our research and teaching should be going. In London, we seem to have divided into 'comparative lawyers' and 'international lawyers', two labels which imply quite different approaches to law and are based on different legal theories.

If I was at Cambridge or Nottingham, or even next door at University College in London, my understanding of law would certainly be much more focussed on English law. But at SOAS, in addition to South Asian laws, I have been teaching a course on English Law which concerns the legal position of ethnic minorities in England, especially of South Asians. That course has always been extremely popular, and it has recently taken on a new methodological slant involving detailed pluralist legal analysis. This approach requires critical reflections on the nature of law itself, before studying any legal rules and their application in detail. This method, as well as the substantive subject matters we study together, really excite many students, who at SOAS are expected to study Asian and African laws as well as English law.

But teaching law in India is a different matter, isn't it? India is not England or the USA, and never will be, despite modernisation and globalisation. Does this mean, therefore, that legal education and the approach to law in India also have to be different from the methods employed in Europe or North America? Can law just be taught as though it was a universal global phenomenon to be subsumed under 'rule of law' and 'good governance'?

The real question is therefore whether we can treat Indian law (because that is what Indian law schools purport to teach) as though it was simply a version of common law. Or do we teach it as Indian law, as an entity in its own right? In either case, what are the implications? Why is Indian law always seen as an inferior cousin in the common law family? Is there no other way to conceive of Indian law? Apart from the link with English law and common law principles, can one teach Indian law as though there was a global vision and an agreed international definition of law, against which the domestic law is then to be measured? We are asking, therefore, whether there is an Indian legal identity and a linked legal theory, seeking to explore what the Indian vision of various understandings of law might be.

Most Indian law teachers and lawyers will be tempted to say that law is a universal phenomenon, and there is no need for a specifically Indian legal theory. In fact, 'going back' to indigenous legal theory is often per se seen as an undesirable backward step, which helps to explain the miserable situation of Indian family law teaching. However, if we know that law may be a universal phenomenon, but there is simply no uniform manifestation of law, since law is everywhere culture-specific, why are we steadfastly refusing to adopt such theoretical acceptance of pluralism into our teaching methodologies and practices? Thus, if English law is not the same as French law or German law, let alone Saudi law or Iranian law, we did not need September 11 to remind us of conflicts of laws and world views. However, we do need to be reminded, apparently with more persuasion than hitherto, that there are not just Muslims and Christians in this world, and that the reality of legal pluralism is much more plural than even so-called comparative lawyers generally assume. There is a clear need for radical pluralism, not as a destructive exercise in protest, but as a constructive educational method and as a tool to help lawyers of the next generations understand their various multiple roles and functions. As law teachers, we have a professional obligation to think about such matters, unless we want to be reduced to teaching the mechanics of legal plumbing.

It should strike Indians that your country and your legal systems do not figure prominently in debates about law and legal theory. There are a variety of reasons for this, one major focal point at present is offered by the events in and around Ayodhya, as though law and religion were irreconcilable poles.  So the outside world feeds on stereotypical debates that portray India as a background religious country, a place where modern law is threatened by Sannyasi rule, where people just kill each other and the State looks on, a huge but lawless country that does not deserve serious attention from outsiders because it is in a mess and nothing seems to improve. Many Indians have adopted such defeatist attitudes as well; they seem to have given up the will to improve anything, including themselves.

Western legal positivists have of course other hegemonic agenda when the) denigrate India. They clearly have no interest in explaining and highlighting the other side of Indian law, your Constitution and its fascinatingly complex interpretations, and your attempts to construct a viable legal system for over a billion people out of suitable fragments from many constitutions of the world. Seen from this perspective, England is just like Bihar, a fairly small place with lots of unresolved legal problems. While the challenges for Indian law are manifestly much larger than for other legal systems, the simplistic assumption that Western laws somehow function well, and Indian laws do not, need to be challenged and analysed afresh. So far, only rather superficial work has been done on such issues. Thus, Upendra Baxi has talked about the massification phenomenon, but there is simply no proper analysis as yet of what this should mean for Indian law and for the training of future lawyers.

In view of the above, then, is there a need and some conceptual room for an Indian legal theory? To explore this question further, it is imperative to go back to the basics of what we mean by law. Law is what lawyers teach, study and practise, isn't it? Of course, that is hardly a serious definition or a suitable basis for a global legal theory. Since law can be described as a universal phenomenon that appears in many different manifestations, the first difficult question is where we draw the line between law and other phenomena. Can and should religious rules be treated as law? Is custom law? So we are always thrown back to the most basic definitional issues about our understanding of law itself to construct any particular legal theory. All these are ancient, familiar questions, but we continue to struggle with them.

So let us take a fresh look at existing legal theory in the light of our project. Legal theory seems to be a most complex field, with many big names and complicated, intricate reasonings that students struggle to remember in exams of the wrong kind. However, it can actually be reduced to some basic legal principles of universal validity, which appear thereafter in many different combinations and permutations. It is a fact that there are really only three basic sources of law, namely the State, society and religion, and not by coincidence they are matched by only three major basic theories of law. Historically they appear as natural law, legal positivism and the historical/sociological school of jurisprudence.

Since law as it manifests itself in reality is based on a variety of sources in different combinations, it is only natural and logical that we should require composite theoretical approaches to understanding law itself as well as any one legal system. For Indian legal theory, this means that law is never just State law, or just religious law, or only local customs and norms, it always appears as an intricate combination of different manifestations of law. But do we have an Indian legal methodology to match this culture-specific pluralistic intricacy? The answer is negative, for reasons that we know only too well. Indian legal education is still mired in doctrinal, largely colonial, black letter modes, and so is Indian legal research and writing. Modernity, and especially legal modernity, had the effect of further privileging legal positivism, as seen in the law and development debates.

Globalisation continues those state-centered hegemonic agenda and has now transposed positivism into a global force with powerful claims, for the alleged good of human civilisation, as evidenced by lots of pious talk about international human rights and basic norms that should be obeyed by all. However, because there is not one understanding of globalisation, but there are in fact competing processes of different culture-specific globalisations, as Patrick Glenn (2000) has emphasised in an excellent, helpful study on legal theory, global conflict is the inevitable result. So we are again beginning to see wars fought over ultimate control of the world, when it should be more than clear that such uniformising ambitions have always been doomed to failure, because social realities will never fall completely in line with top-down prescriptions of some powerful law-making body. While this is a bitter pill to swallow for most Western lawyers, given the way they have been indoctrinated about the power of law, Muslim claims to ultimate world rule suffer a rather similar fate, engendering caged disbelief rather than openly expressed reservations about the feasibility of universal Muslim rule. It must be highlighted that all this modernist discourse in its various manifestations is busily trying to hide the critical fact that laws and those who make them cannot ultimately control the world, not because of religion, but because of the nature of humanity.

Postmodernity and its many facets offer the potential to recognise that law by itself does not have the ability to regulate everything. Even in a phrase such as this, we use the word 'law' simply in its positivist sense. Otherwise it is a fact that laws, everywhere, appear to regulate everything under the sun, but are these laws necessarily made by the State? So what we recognise in postmodern approaches is not only that law has limits, but that law is much more than State law. Once we recognise in principle that the ambit and realm of law extends far beyond State law, we move away from positivism and end up questioning the traditional modernist critique of law as inefficient and ineffective. We become ready to see and analyse how the law works in its plural social reality. Having recognised that this manifest socio-legal reality is not what we teach about in law schools, we have opened a window to deeper reflections about new methodologies of Indian law teaching.

How will this work in reality? Postmodern legal theory, it seems to me, has to be based on socio-legal analysis rather than positivism or pure natural law theories, because both are too idealistic and tend to ignore the pressures of social reality. Understanding legal pluralism is not a question of either/or, but a matter of combination of different theoretical approaches to capture a complex phenomenon. Having gone that far, we therefore become prepared to recognise that the State is only one agent in the production of law, that positivism by itself is not sufficient.

Law teachers are, in theory, familiar with such arguments and will readily accept the constitutional argument that guaranteeing a right to life in a Constitution may remain a pure

some impressive arguments about the limits of law, which are simply not coming from English or European laws. These arguments are not liked by most Western lawyers because they question and challenge comfortable positivist axioms. The result is that Indian legal developments and Indian legal thinking are given very little credit abroad. All we want to hear in the West is how inefficient and deficient Indian law is, we do not want to be reminded of the limits of law itself, nor of the specific achievements of Indian law.

In my recent theoretical work (Menski 2001), I have tried to outline how a pluralist legal approach works in the postmodern context. But many lawyers insist that legal pluralism is not a good theoretical foundation for legal studies. For example, Brian Tamanaha (1993) pokes fun at the folly of a concept of legal pluralism which declares everything non-legal as legal. The hidden agenda here appears to be preservation of the cabbage patch of legal positivism. Assertions that law can be neatly identified as a separate force in social reality really just promote the claims of legal positivism as the central pillar of all legal theory.

I am not at all convinced that this is the right approach to legal study. I have been impressed by the writings of Masaji Chiba from Japan (1986; 1989) and his theoritical model of the 'three-level structure' of law. Without explicitly saying this, Chiba takes account of the complexity and interaction of different sources of law, namely the State, society and religion, thus combining in his theory the strands of positivism, natural law theory and socio-legal approaches. We cannot do better than that. Here is a theoritical model of global validity, encapsulated in Chiba's three interacting elements of official law, unofficial law and 'legal postulates.'

An important aspect of Chiba's theory is his critique of the Western claim to univeu lity. He clearly says that law is everywhere culture-specific, so English law is specifically English, while Japanese law, even if you translate it into English, remains Japanese. This means, then, that any form of Western law could never be the sole basis of all other countries' legal systems. So much for the favourite topic of some so-called comparative lawyers, the themes of 'migration of laws' and 'reception' of colonial laws, which are no more than bluntly positivistic assertions of the claimed role of the State in dictating rules to its subjects. These are colonial hangovers, from which also the Indian legal education system is suffering.

What implications does all this fussing over different theories have for Indian legal theory and for law teaching in India today and in the future? I have already said that Indian lawyers and law teachers have remained too focused on doctrinal black-letter approaches and now realise that they are themselves a central part of a deep crisis. Since Indian lawyers remain so strongly fixated on State law as the dominant element, while social reality is manifestly different, what is the way out? It is evident that their own legal training has not prepared them for facing this reality. We cannot expect, let alone demand, that law teachers should be retrained in subjects like antropology, since the various social sciences themselves are so deeply infused with positivist assumptions about law and its functioning. It is even a struggle to begin to think about where to begin. I do not have an easy answer either, but recommend that jurisprudence courses should be reworked to take specific account of postmodern legal pluralism theories. It is certainly important that jurisprudence is taught as early as possible during a student's legal education. Our experience from SOAS, where the very first question to new students is pointedly about the nature of 'law' itself, offers some useful pointers. Reflections about the nature of the thing cannot be introduced years after doctrinal legal education has done the damage we are now seeking to remedy. The fact remains that there is massive myopia when it comes to understanding legal reality and to discussing it in our classrooms.

I do not see much constructive effort in India to remedy such major omissions. Most Indian law teachers are simply too positivism-obsessed to offer their students anything else than text book wisdoms, not challenging them in the process to think for themselves and to digest what they see happening every day in front of their own eyes. Instead of deep thinking about legal theory, we get shallow politicised constructions about hindutva and Muslim fundamentalism. The systematic distortion of representations of the Indian legal field pleases the West no end, and now brings ample rewards for those law teachers who go a small step further and advocate replacing anything Indian with international norms. One could not go further than this in discarding one's own identity and disowning in the process everything that Indian law stands for in all its plurality.

Being ashamed of Indian law in international comparison has the further effect that many legal scholars try to argue that culture, Indian culture of course, is backward and irrelevant, and so is religion. Refusing to treat and discuss culture and religion as law-founding forces, Indian legal scholarship vainly attempts to focus only on positivist law-making processes, but has argu^ ' self into a deepening crisis of identity. Recognition that social reality is different from legal doctrine, and that the two do not match in daily life, is absolutely necessary, not only to rescue the floating benefits for lawyers as professionals (which might swim away if lawyers, in turn, do not learn to adjust to the new plural realities) but to bring about a more focused understanding of postmodern Indian laws.

Indian legal theory has to take explicit account of plural legal realities. It is amazing that various arguments about abolition of the personal law system are still being floated by Indian scholars today, when in virtually all Western jurisdictions the new pluralistic pressures of international migration operate towards greater recognition of ethnic plurality and more or less formal recognition of various ethnic minority rules and norms - or should we call them laws? It is evident that Indian legal scholarship has largely remained wedded to colonial models of thinking and analysis, despite what Krishna Iyer and others have told us since the late 1970s. Sudhir Chandra's Enslaved daughters (1998) confirms the colonial claim to universality and a fundamental suspicion among lawyers and administrators about human agency, in other words, an underlying hostility to accept socio-legal approaches. Under colonialism, uniformity became an axiomatic value, and hence we have all those debates about a Uniform Civil Code, while in England, for example, angrezi sliariat and angrezi dharma demand more and more official attention.

Those who propound adherence to international norms seem to overemphasise natural law approaches, supported by legal positivism, but still ignore other potentiai legal inputs,

namely the role of local societies and of individuals. In my view, this universalising pressure is based on totally misguided assumptions and a deficient methodology. Since proponents of international law more or less openly despise Indians and the Indian legal system, they see no value in thinking about any form of Indian legal theory. India, in common with Africa, China and many other places, has nothing to contribute to civilisation or to legal theory. The view is that Indians should modernise as fast as possible and should get over religious and cultural traditions to become world citizens. In such a climate, there is simply no room for Indian legal theory, but let me assure you that it exists and that those in charge of the Indian nation have been much more intelligent than outsiders (and many Indians) want to accept. There are indeed many problems in Indian law, and in India, but we must not forget that law is nowhere a perfect mechanism of control, and problems exist in all legal systems - only we may not hear about them, as news filters quite selectively. In other words, my observation is that Indian legal scholors seem too overwhelmed with the specific problems of India, and at the same time too impressed with foreign models.

It was not the aim of the present paper to outline what an Indian legal theory would involve. In a forthcoming book, Hindu law, between tradition and modernity, I demonstrate that talking about Hindu concepts as a dominant force in Indian laws is not the same as indulging in hindutva politics, but is a model exercise in developing postmodern understanding of the complexity and culture-specificity of all legal systems in the world. If we want to construct a culture-specific theory of Indian law - and the conceptual underpinnings of legal pluralism in line with Chiba's model suggest that this is feasible and highly desirable for all jurisdictions - Indian law teachers will have to deal with legal history and socio-legal issues, as well as with Hindu and Muslim laws, and much else, as integral elements of the legal subjects they are teaching. As long as law teachers anywhere refuse to recognize the complex nature of law and of legal realities, they will indeed nor be able to fully educate the next generation about the law they purport to teach. It is time to move away from much of the present narrow-minded and often ideologically motivated law teaching towards a broadening of approaches in the understanding and analysis of law. Thus, let the door be opened for discussions of the specifically Indian nature of Indian laws.

References;

Chandra, Sudhir (1998): Enslaved daughters. Colonialism, law and women's rights.

Delhi et al.: Oxford University Press,

Chiba, Msasaji (ed.) (1986): Asian indigenous law, in interaction with received law.

London and New York : KPI

Chiba, Masaji (1989): Legal pluralism: Towards a general theory through Japanese legal culture.

Tokyo: Tokdi University Press

Glenn. Patrick (2000): Legal traditions of the world  Oxford et a!.: OUP.

Menski, Werner F, (2000): Comparative /era in a global context: The legal systems of Asia and

Africa. London: Platinium.

Tamanaha, Brian (1993): 'The folly of the 'social scientific' concept of legal pluralism'.

In VoI. 20 No. 2 (Summer) Journal of Law and Society, pp. 192-217.

Adultery - Is it A Male Partner Offence?

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

Indian women are enjoying a position of high esteem in society, since time immemorial. In ancient days they were subjected to certain injunctions to protect their respectability and reputation. A duty was imposed on husbands to protect their young and youthful wives. It was believed in the ancient texts that women should be protected from the slightest of corrupting influence especially since an unprotected woman aggrieves both families (those of her father and husband) on account of her sexual proclivity. Women though well protected make transgressions at times if things are favourable for them. This transgression was called in the old texts Sangrahana or adultery which we call at now. Severe punishment was also prescribed for woman engaging in adulterous activities. "Unlawful coming together of a man and woman for sexual enjoyment constitutes the offence of Sangrahana (adultery)" - Mitakshara on Yajnavalkya-11-283. Both man and woman indulging in adultery are liable to be punished, so is told Brihaspati- P: 367-15. Manu Samhitha provided that, "For acts of infidelity to her lord, a wife becomes condemnable in society and she will be reborn as a she jackal afflicted with many a foul disease. She shall be punished by the King to be devoured by ferocious dogs in a well crowded locality. The male partner of adultery shall be laid down on a hot bed of iron and the public executioners shall cast logs of wood in the fire bed till his body is consumed to ashes".

In the above background the offence of adultery if visualised with a comparison to the definition comes under S.497 of Indian Penal Code, 1860, it becomes apparent that the scope of the offence and its punishment is drastically diluted. S.497 defines adultery as follows: "Whoever has sexual inter course with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual inter course not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both. In such case the wife shall not be punishable as an abetor". The cognizance of this Section is limited to adultery committed with a married woman and the male offender alone has been made punishable. Thus under the Code, adultery is an offence committed by a third person against a husband in respect of his wife. It is not committed by a married man who has sexual intercourse with an unmarried woman.

By the reason of S.198(1) CRPC no Court can take cognizance of the offence of adultery except upon a complaint by some person aggrieved by the offence. Sub-s.2 of S.198 provides that for the purpose of sub-s.(1) "No person other than husband of the woman shall be deemed to be aggrieved by an offence punishable under S.497. A combined reading of S.497 IPC with S.198 Cr.P.C. tells the following tale.

(a)    S.497 prescribes punishment on the adulterer male only. It does not punish the adulterous wife.

(b)    S.497 confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery.

(c)    S.497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.

(d)    It does not cover cases where the husband, has sexual relations with an unmarried woman with the result that husbands have, as it were, a free licence under the law to have extra marital relationships with unmarried women.

The framers of Indian Penal Code who were English People found the following reasons to exclude the woman partner of adultery from punishment. "We cannot but feel that there are some peculiarities in the State of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of woman of this country is that they are married while children they are often neglected for other wives while still young. They share the attentions of a husband with several rivals. To make laws for punishing the inconstancy of the wife, while the law admits the privilege of the husband to fill his Zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law as evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow but we trust the certain operation of education and of time. But while it exists, while it continues to produce is never failing effects on the happiness and respectability of woman, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law".

The above reasoning has many pitfalls. The framers on their anxiety to save women from the spell of punishment under S.497 IPC though used some ideological jinks, yet made the offence of adultery as an offence committed unilaterally by male by prescribing punishment on him alone. Everyone knows the fact that adultery is a bilateral act in which both man and woman are equal partners. The other fallacy of the reasoning is that Indian Women are given concession under law to satisfy their sexual need outside matrimonial home. It is an assault on the virtue of Indian women. Equally the same framers have forgotten the fact that they had made marriage during the life time of the other spouse an offence under S. 494 IPC in which both the man, woman and all the abetors are punishable. In India except Muslim community no other community is practising polygamy. No more is child marriage permitted under law in India. So looking at the offence of adultery in Indian context, it should be. seen an offence committed both by man and woman and both should be adequately punished.

S.497 was challenged before the Supreme Court two times. The first one was way back in 1954. The decision is reported in AIR 1954 SC 321 in Yusuf Abdul Aziz v. Bombay. It was challenged on the ground that it discriminates woman on the ground of Sex. However, Supreme Court let loose the protective umbrella around S.497 referring to Art.15(3) of Constitution. After about 30 years again S.497 was Subjected to the touch stone of judicial scrutiny. The decision is reported in 1985 Criminal Journal 1302 in Smt. Sowmitri Vishnu v. Union of India. The Supreme Court dubbed the contention in the appeal as emotional appeals and dismissed it with the following observation. "It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some changes over the years but it is for the Legislature to consider whether S.497 should be amended appropriately so as to take note of the transformation which the society has undergone". The Law Commission in its 42nd report recommended the retention of S.497 with the modification that the wife who has sexual inter course with a person other than her husband should be punished also *However the suggested modification was not considered by the Legislature. Thus the offence of adultery goes on with its onslaught on the male partner and gives a feather touch and go on the female partner. It shows that adulterous sexual inter course is a unilateral act in which the man is vim and vigorous whereas the woman is only timid and livid. It makes a big question mark, "Is the woman a chattel to own or a love statue to woo upon"?