Raise in Time

(By A. Raji Vijaya Sankar, Advocate, Palghat)

The Civil Rules of Practice was drafted in view of the power given as per S.122 of the Civil Procedure Code, 1908 and the High Court was pleased to frame Civil Rules of Practice and the same was approved as per G.O.M.S. 239/70 dated 19.11.70. At that time computers, multimedia, laser printers etc. were not introduced in India and we were not aware of the latest/earliest printing technology. But after 2000 latest home printing technologies were invented and they have invented latest fonts and emphasing methods were invented. Accordingly, Advocates were able to present statements etc., by using colourful fonts to emphasis the points/shading lines, auto shapes etc. which are necessary for the disposal of the cases, even to draw the scenemahazer details in the statements to prove their defences by drawing pictures of the occurrence place. Suppose in a written statement if the denial of a fact or admission of a material etc., are made in using colourful fonts it will be easy to the Judges to find out the position and also to solve the facts in issue easily.

It is stated in S.10 of the Civil Rules of Practice of Kerala to the effect that the plaint/ written statements etc. blue/black ink should be used. At the time of framing these rules, except writing, the other methods like computer printing etc. were not invented. The said Civil Rules of Practice was drafted to control the Subordinate Judiciary only. But after the introduction of Tribunals, particularly MACT, the Tribunals are controlled by the Kerala Motor Vehicles Rules, 1989 and therein with regard to the colour of ink no restriction is imposed. In the same M.V. Rules, 1989 the application of Civil Rules of Practice is excluded and in number of cases it was held the MACT is not a court so that the Civil Rules of Practice is not applicable and it was also held that the computation of fees in the Act is not applicable to the MACT. So that the intention of the Legislature is to use beautiful ink for the preparation of the pleadings. If colour fonts are used to emphasis certain points no prejudice will be caused and that is not against the sovereignty and integrity of the nation. Law is made for the people and the ink itself is made by the people. If any restriction is imposed that will be against the development of the society.

The Honourable High Court had observed in number of cases that the Pleadings in MACT cases should be specific and the important points should be specified, so that the Tribunals can dispose of the cases forthwith without wandering in the written statements to find out the defences. As per S.10 of the Civil Rules of Practice the usage of Blue-black is used only while writing pleadings and not in using computers and printers. In view of the E-mail courts etc. introduced by the Supreme Court, particularly when the Civil Rules of Practice is not introduced in MACT and other Tribunals and forums, there is no bar in using colour fonts in appropriate places to high light the important points in issue. The time has come to make necessary changes in view of the development of the science and technology in the Civil Rules of Practice.

Some Suggestions on Consumer Law

(By Parippally P. Sreedharan, Advocate, Kollam)

The men of law, especially the presiding officers in Consumer Forums were seeking more powers to get over the difficulties to implement their orders effectively. Neverthless the Central Government provided more teeth with Magisterial and penal powers to Consumer Dispute Redressal Forums, State Commissions and to the National Commission as per Amendment Act 62 of 2002.

Material charges are brought in Ss.25 and 27 of the Consumer Protection Act as per this new amendment. These are the only two provisions in the Act for execution and to enforce the findings or orders to realise the amount or for other reliefs.

On a close study of the above two amended sections one can see several loopholes and patent repugnancy hanging over.

S.25(1) - is the only provision in the Act for realisation of money from judgment debtors or from one who had not complied with the orders. Attachment of property is the procedure. This section denotes only Interim Order and not final Order or findings after completing the enquiry.

S.25(3) - The relief under this proviso is Revenue Recovery through District Collectors. Cannot see any other provision in the Act for realisation of money from judgment debtors. In the Act prior to amendment of S.25 the same forum or commission passing the orders were empowered to enforce the orders as if it was a decree or order made by a Court in a suit pending therein. The scope was more and wide prior to amendment. Unfortunately this general power is deleted as per the new amendment and empowered only for interim orders. Such an enactment having no powers to enforce the final orders of the forum or commissions through the same authority to realise money and for other reliefs will be imperfect, incomplete and rather to say that such enactment is defective. S.27 is only a penal provision.

Rules as per new amendments are not published and is under active consideration of the Central as well as State Governments and the interpretations of the above two sections by different authorities will be inconsistent and divergent if no constructive approach and endeavor are made by the men framing rules to get over such legal fictions in the Act.

Suggestions for Rules

S.25(1) - Order under this Section includes the orders of the District Forum under S.14, order of the State Commission under S.18 and orders of the National Commission under S.22.

S.25(3) - District Forum where the recovery proceedings is pending may have to be empowered to issue certificates for revenue recovery to any other District Collector in the State. (Property or business of judgment debtors may be out side the District. No provision in the Act to file Execution Proceedings in a different District where lies the property of judgment debtors.)

Rules may be framed in such a way enabling to file applications for recovery of amount due by way of Execution Petition in the District Forum where complaint was filed or decided irrespective of the place of residence or place carrying on business by the opposite party. (No provision to file an execution petition in a District Forum other than the complaint was decided.)

S.27(1) - Warrant outside District

District forum exercising the jurisdiction of Judicial Magistrate of the First Class may be empowered to issue arrest warrant before or after conviction against such offender or against a convicted person residing or carrying on business any where in India. (Powers under S.77, 78,79,80 and 81 in Chapter VIB of the Cr.P.C. may be conferred.)

S.27(3) - Imprisonment may be in Central Prison an not Civil Jail

In most of the cases opposite parties (Judgment debtors) will be many in number and powers for punishment is upto 3 years. It will be hard and impracticable for poor complainants to deposit amount for imprisonment in civil jail as in CPC. This jurisdiction for punishment is the only effective machinery given to District Forum as per amendment and if have no powers for imprisonment in central prison the total amendment will be ineffective and will render no use.

On whom the powers are so conferred

To get clarified whether the powers of a Judicial Magistrate of the first class so conferred under S. 27(3) is a vested right or subject to the conferment of any superior authority. No such higher authority is empowered in the Act to confer such powers.

Ss.22D and 27 – Remand

President or Senior most member may be authorised for convenience to remand an offender or a convicted person on production by police or by any person authorised to arrest in the absence of full forum (three numbers).

Can There Be a Default Clause of Imprisonment to An Order Directing Payment of Compensation Passed Under S.357(3) of the Code of Criminal Procedure? No.

(By P.N. Dilardeep, Advocate, Kollam)

"He is further directed to pay an amount of Rs.3,10,000/- (Rupees Three Lakhs ten thousand only) as compensation under S.357(3) Crl. P.C. In default of payment of compensation he shall undergo simple imprisonment for a further period of sixty days". This is the order contained in para 19(d) of a Judgment seen reported in 2002 (3) KLT page 352.

"The accused is further directed under S. 357(3) Crl. P.C.

(a) In Crl. Appeal 430 of 1995 to pay an amount of Rs. 2,75,000/- (Rupees Two lakhs seventy five thousand only) and in default to undergo simple imprisonment for a period of three months.

(b) In Crl. Appeal 431 of 1995 to pay an amount of Rs.2,25,000/- (Rupees Two lakhs twenty five thousand only) and in default to undergo simple imprisonment for a period of three months.

(c) In Crl. Appeal 435 of 1995 to pay an amount of Rs.1,75,000/- (Rupees one lakh seventy five thousand only) and in default to undergo simple imprisonment for a period of three months".

This is another order, contained in para 41 (IV) of a Judgment seen reported in 2003 (2) KLT 1. The relevant portion can be seen in page No. 14.

I, with due respect, disagree with the imposition of the default clause of imprisonment contained in the above said directions to pay compensation which were passed under S. 357(3) of the Code of Criminal Procedure. In my opinion the Court invoking the discretionary provision of S. 357(3) to console the person who has suffered any loss or injury by reason of the act complained of, cannot impose a default clause of imprisonment. And I feel that the law also support my point of view.

S.357(3) reads thus "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".

The provision is abundently clear that a direction to pay compensation under this Section can be passed only if fine does not form part of the sentence. If fine forms part of the sentence, provision applicable is 357(1) which reads like this "When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied:-

a) in defraying the expenses properly incurred in the prosecution.

b) In the payment to any person of compensation for any loss of injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court.

Clauses (c) and (d) are omitted as not necessary.

The important difference between the above two provisions is that under S.357(1) Crl. P.C, the Court can direct payment to the complainant/victim/injured of the whole or any part of the fine, which forms part of the sentence, by way of compensation; whereas under S.357(3) Crl. P.C. the Court can direct the accused to pay such amount by way of compensation. The amount ordered to be paid under S.357(3) does not have the characteristics of 'fine' that forms part of the sentence. Is not there any difference between the two? Yes, what is it? Before answering that question I shall point out few more aspects to substantiate my point of view.

S.357 is a provision incorporated in Chapter XXVII of the Crl. P.C. under the heading "The Judgment". This chapter contains S. 353 to S. 365 (both inclusive) of these, S.357 is regarding order to pay compensation, S. 358 is regarding compensation to persons groundless arrested. S.359 is regarding order to pay costs in non-cognizable cases. These are the provisions bestowing powers with the courts to incorporate orders, direction or award in the Judgment for the payment of compensation or costs as the case may be. Sub-s.3 of S.358 provides that if the compensation awarded cannot be recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days. S.359 also provides for a default clause of imprisonment for a period not exceeding 30 days in case the payment of money is not made. If the intention of the Legislature is to impose a default clause of imprisonment in case of non-payment of compensation under S.357(3), definitely it might have found a place in the statute book itself as in the case of Ss. 358 and 359.

Now I shall answer the above question. S.357(1) speaks about 'fine' that forms part of the sentence. If fine is a sentence or part of a sentence, definitely there can be a default clause of imprisonment. The amount ordered to be paid under S.357(3) does not have the characteristics of fine as sentence. Default clause as seen in Ss. 358 and 359 are also not seen. Therefore, the only interpretation that could be attributed to S.357(3) does not allow the courts to impose imprisonment to the persons who commit default in paying compensation under the said section.

Now a question may arise as to the mode of execution of an order for payment of compensation passed under S.357(3). The answer is there in Chapter XXXII of the Crl. P.C. The relevant provisions are Ss. 431 and 421.

S.431 provides that the money payable by virtue of an order passed under S.357(3) is recoverable as it were a fine. S.421(1) provides two different modes for the recovery of fine. There is a proviso to this sub-section. A combined reading of this proviso and the proviso to S.431 reveals that in the case of an order for the payment of expenses or compensation out of the fine under S.357 or an order for payment of cost under S.359 the court can issue a warrant as provided in S.421(1) irrespective of the fact that, the offender has undergone the whole of the imprisonment directed in the sentence for the default of the payment of fine.

Here at this juncture it is worth noticing the amendments sought to be incorporated in the N.I. Act through the Amendment Act 55 of 2002. A new section i.e., S.143 sought to be inserted reads like this S.143(1) "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences under this Chapter shall be tried by a Judicial Magistrate of First Class or by a Metropolitan Magistrate and the provisions of Ss.262 to 265 (both inclusive) of the said Code shall as far as may be apply to such trials.

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees. This proviso is intended to give power to the Judicial Magistrate of the First Class to impose a sentence of fine exceeding Rs.5,000/- prescribed by S.29(2) of Crl. P.C. If there is no difference between the fine that forms part of the sentence as provided in S.357(1) and the amount of compensation as provided in S.357(3) there would not have such an amendment. Only if the amount forms part of the sentence the court can impose the default clause of imprisonment.

In view of the above said amendment Magistrate can in a given case pass a sentence of imprisonment and also fine under S.138 and can incorporate a direction in the order to pay compensation under S.357(1) together with a default clause of imprisonment. In such an instance as I have already stated the court can issue a warrant as provided under S.421(1) for the recovery of the amount irrespective of the fact that the accused had undergone the imprisonment imposed for the default of payment of compensation.

I also finds support to my above point in the decision of the Apex Court of our country seen reported in 2001 (1) KLT 517 (SC) Pankybhai N. Patel v. State of Gujarat. In this case the only question considered by our Apex Court is whether the Judicial Magistrate of First Class could impose a sentence of fine beyond Rs. 5000/- in view of the limitation contained in S. 29(2) of the Code of Criminal Procedure. Answer to the said question is in the negative. In para 17 of the said Judgment the Hon'ble Supreme Court observes that a Magistrate who thinks it fit that the complainant must be compensated with his loss he can resort to the course indicated in S.357 of the Code of Crl. P.C. Para 19 contains the operative part of the judgment which reads thus:

"19. In the result while retaining the sentence of imprisonment of six months, we delete the fine portion from the sentence and direct the appellant to pay compensation of Rs.83,000/ - to the respondent/complainant. The said amount shall be deposited with the trial court within six months, failing which the trial court shall resort to the steps permitted by law to realise it from the appellant".

By the said order fine portion is deleted from the sentence and at the same time the amount imposed by the Magistrate as sentence of fine Rs.83,000/- is directed to be paid as compensation, but there is no default clause of imprisonment, instead, there is a direction to the trial court to resort to the steps permitted by law to realise it. The said amount of Rs.83,000/- does not form part of the sentence hence the order to pay compensation is under S.357(3) Crl. RC. If it was otherwise an order under S.357(1) could have been passed with a default clause of imprisonment.

Campus Fire-Fighting: Ban on Politics In Academic Campuses

(A Critique of the Division Bench Judgment in Sojan Francis v. M.G. University - 2003 (2) KLT 582)

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

1. The decision of the Division Bench of the Kerala High Court consists of Justice K.S. Radhakrishnan and Justice K. Padmanabhan Nair regarding politics in the college campus shows that Daniel has again come to judgment. The insidious infiltration of politics and politicians into academic campuses with the resultant creation of insubordination, intransigence and indiscipline and inimical behaviour towards fellow-students has created not merely chaos and confusion among the youngsters of impressionable age, but has imparted criminal tendencies in the tender minds of the young ones. The feeling of dissatisfaction and disappointment generated by the decision in the minds of our political leaders is amply indicative of the fear psychosis enveloping their minds concerning the narrowing scope for their parasitical existence.

2. Indian Constitutionalism is fundamentally organic, not inert and the law of the land is richly textured. Constitutional decision-making consists of Judges interpreting the snap shots and making sure that those engaged in politics do not cross the normative boundaries established during periodic bursts of higher law-making. Events on the surface of constitutional rhetoric may sometimes obscure the underlying elements of law. But, such is not the case in the judgment under reference.

3. We have had enough of politicians and politics, during the past half a century. Thanks to Indira Gandhi, such a moral transvaluation has taken place in Indian Society, particularly among the politicians, the Legislators and the Beaurocracy that the common man in India finds himself placed between the devil and the deep sea. Politicisation of the Senate and the Syndicate of the Universities, the Academic Bodies and the Teachers Associations has devalued and downgraded our educational institutions beyond repair and redemption. Dedication, dignity and discipline have disappeared from the dictionary of the academic world and scholarship has become the first casualty in the process. These are bad enough portents for our children's future. Worse still is the subtle and subterranean attempt of our politicians to seduce the toddlers in teens of our educational institutions, whose young tender minds are tarnished with thoughts of different political hues without enriching or enlightening them. This not merely diverts the attention of our children from the pursuit of their studies, but sows in their tender, yet fertile, minds with seeds of hatred, anger, ill-will and rancor. Regimentation of their tender minds with negative thoughts and destructive tendencies mars, and not makes for, their progress in education or life. Normally, a student leaves college when he or she attains 19 or 20 years of age. Before that how could one expect these youngsters to grab, and have a grip on, political philosophies. Hence the argument that an embargo on politics within the college campus is denial of right to information and, freedom of assembly is a misleading, if mischievous, argument. Social studies and political philosophies imparted in the college will suffuse their minds, with knowledge on these lines and that will suffice.

4. Injecting the venom of political rivalry into the tender and pliable minds of innocent youngsters is the primary pre-occupation of power-hungry politicians and their dreams are steadily consuming their reason. When they fail in their one-up-man ship against each other, they make a frustrated retreat of a lonely drumbeater having done enough damage to the student's psyche. The prevalent practice among our political parties is idolization of some instead of commitment to a cause which damages democratic values.

5. The Division Bench headed by Justice K.S. Radhakrishnan rightly dismissed the arguments of the advocate for these political heads that the principals, teachers and the management could take action only if some mischief was committed in the college premises. The Bench also rightly confirmed the management's right to ban political activities in academic campuses. I do not, of course, dismiss the rare possibility of a management or a principal misusing their power to manipulate a manner for removing or a student from their institutions. The underlying philosophy of the High Bench decision is that the right of uninterrupted education is a fundamental right guaranteed under Art.21 of the Constitution and therefore it was incumbent upon the State to issue regulatory measures to give effect to the Constitutional provisions.

6. Enough is enough. The future of the innocent and intelligent children of the State should not, be allowed to be sacrificed at the altar of campus politics which is both a politicians paradise and Dante's Inferno. The decision of the Kerala High Court, which has a creditable record of being a trail-blazer in handing down epoch-making, if not earth-shaking, judicial decisions, has brought a whiff of fresh air welcome to every discerning and disciplined democratic citizen of the country. The judgment will enable, nay, even force, the student community to avoid political conflicts and confrontation and concentrate on what they really need: Education. The principals need not anymore allow themselves to be hand-cuffed by the politicians and they can boldly turn up their noses at the "chota netas". Peace will prevail in academic campuses paving the way for the full-fledged fructification of the students personalities and calling a halt to the renewed cacophony of captious political criticism. There will be an end to the endless frittering away of their energies in pernicious political pursuits and its siphoning into creative, purposeful channels. It is both facile and futile to react to this reality with criticism as political leaders are tempted to do. With a deft and dexterous sleight of hand the judiciary, accomplished what public opinion could not. Academic campuses ravaged by sectarian conflicts were cleared of the malaise of political infiltration, thanks to the bold initiative of the judiciary.

7. Our politicians, who show and sheen absolutism and arbitrariness, have been told in no uncertain terms, though impliedly, by the Kerala High Court more than once that it will reject subordination of social interest to political and private interest and recognise the happiness and harmony of the people as a whole and insist on respect of Rule of Law for both individuals and society. It is a fallacy to assume, as is done in fashionable circles, that party politics is the summum bonum of existence and that purveyors of politics alone can save and salvage this country.

8. The permission for students' associations aligning on political lines has its first and most immediate effect in the result that a union of academic study and politics tends to destroy the studies and to degrade politics. The history of students' politics in this country, particularly in the State of Kerala, has shown that whenever a Student's Union is allied with one particular political party, the inevitable result has been that it stirs up hatred, disrespect and even contempt for the other unions which held a contrary belief. The belief and the propaganda that more things are wrought with politics than otherwise that this world dreams of is a myth, sedulously cultivated and assiduously disseminated by self-seeking politicians. That the students of this country were thrown into political activities in the pre-Independence era will not improve the situation inasmuch as the conditions prevalent in the country at that time when we were yoked to foreign rule were totally different than the one present in the post Independence India. The judgment under review will quieten well-justified fears that the prevalence of politics in academic campus will hackle students' tongues to make them speak only for the political parties to which their unions are affiliated.

9. I am reminded in this context - and I think rightly - of the famous words of James Maddison, the author of the First Amendment of the American Constitution, which certainly' reflected the judicial thinking on the subject as demonstrated by the Division Bench decision. It is proper to take alarm at the first experiment on our liberties.......

10. I am aware of the American Supreme Court's observations in Barnette which are reproduced in Paico (Board of Education v. Paico decided on June 25,1982) (US 457 page 853). "A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or, perhaps both. Knowledge will forever govern ignorance. And a people, who mean to be their own Governors, must arm themselves with the power which knowledge gives". The above extracted observation will, no doubt, go in support of the need for academic study of political philosophies. This has to be provided in ample measure to every University, but, it is quite different from a political regimentation that is sought to be brought in campus politics, and freedom for that is a hazardous freedom, which makes students affiliated to different students unions propelled or backed by political parties fight like Kilkenny cats not infrequently indulging in violence and vandalism which are anathema to academic pursuits.

11. One cannot endorse the views of the U.S. Supreme Court in Tinker (Tinker v. Des Moines School District). We must take the risk of a hazardous freedom being allowed to anybody, particularly the student community, which is immature and of impressionable age, knowing fully well that any departure from regimentation will cause trouble, any iolation from the majority's opinion may inspire fear and any political word spoken in the class room, in the lunch-room or in the campus that deviates from the views of another person may start an argument or cause a disturbance. When political leadership in the country has gravitated, to the cons and the dons and people with few ideas' and fewer scruples are siphoned off into leadership channels, it will be suicidal for the student community to align on political lines in campus activities. Thanks to the Division Bench decision, without the Tuppenny Politicians and Tammany Hall politics, our academic campuses will be a place dedicated to quiet, to knowledge and to beauty.

12. It is disingenuous for the politicians to look for a purely political purpose when the preambular proclamation of the Constitution concerns itself with justice, social, economy and political. There is simply no historical or factual foundation for the proposition that the Framers of the Indian Constitution intended freedom of opinion of assembly to mean that the politicians can become a law unto themselves. They were conscious of, and anxious for, the education and welfare of the children and that everything should be subordinate and subservient to this. With the Apex Courts virtual declaration of right to education as fundamental, the school headmasters and college principals have the onerous responsibility of creating a conducive atmosphere for that, undisturbed by percolation or permeation of party politics. That the children studying in Girl's Schools and Women's colleges perform much better than the boys in extra curricular activities reveals that banning of politics in academic campuses does not retard the students development against the command or demand of the freedom of assembly. The political minority cannot force the non political majority to obey its feelings of a what is due, fair and proper for the student community. As the American Supreme Court observed while dealing with the case of State-teaching of religions, "The Constitution is not a static Document whose meaning on every detail is fixed for all time by the life experience of the Framers. We have recognised in a wide variety of constitutional contexts that the practices that were in place at the time any particular anomalies were enacted into the Constitution do not necessarily fix for ever the meaning of that guarantee. To be truly faithful to the Framers, our use of the history of their time must limit itself to broad purposes, not specific practices. Therefore our High Court acted rightly in translating the majestic generality of our Constitution into concrete restraint of politicians.

13. I am not suggesting that we should regard our students as close-circuit recipients of only that which the College Authorities choose to confer, convey or communicate or that the Authorities can suppress expressions and feelings with which they do not wish to contend. Again, as the U.S. Supreme Court observed in Keyishian v. Board of Regents (1967), "Students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding." But party politics is not to - and, indeed, should not, - be the focus of such freedom, and allowed to take the place of such freedom. The College Authorities, as rightly held by the Kerala Division Bench rightly possess the significant discretion to determine whether campus politics must be permitted or prohibited. A student can literally explore the unknown and discover areas of interest and thought not covered by the prescribed curriculum. Even without the freedom for party - based politics, which not unoften leads to goondasim, the dissemination of ideas can be accomplished with willing addressees free to receive and consider the same. It is idle, therefore, to assume that academic campuses will be a barren market, place of ideas that has only sellers and no buyers, without campus politics.

14. The impugned decision will not - as is wrongly spread by interested politicians -strangle the free mind at its source and teach youngsters to discount important principles of our Government as mere platitudes; nor does it infringe the free speech rights of the students guaranteed under the Constitution of India. Nothing prevents the students from discussing political philosophies or political decisions taken by the Government or the Opposition as the case may be, based on academic purpose. But to entice the students into active politics whenever they do not have been academic interest of political philosophy and do not have the experience of life, will be a very dangerous proposition and therefore, the Hon'ble Division Bench of the Kerala High Court has stepped in at the right moment. The criticism of our political leaders is adding a new wrinkle to the High Court judgment by separating it from the legal considerations associated with the fundamental rights of the Constitution and creates a misapprehension of the circumstances of the decision. It has to be remembered that the liberty and freedom guaranteed under Art. 19(1) of the Constitution of India is not guaranteed absolutely against deprivation or control, but only deprivation and control without the processes of law. The Court was not ready for sweeping invalidation at the restriction imposed by the Management in the case on hand.

The Gujarat Model in Judicial Functioning

(By Justice M.R. Hariharan Nair (Retd.))

Is the Gujarat model worthy of emulation in Kerala? Press reports have it that the Gujarat High Court has decided, voluntarily and out of its own sense of commitment, that hereafter it would not have any vacations. Public response to the decision appears to be one of appreciation. The question is also posed in the print by readers as to why the model is not to be emulated in Kerala also. My attempt herein is to project the pros and cons.

The evolution of the vacation system dates back to the British days when not only the High Courts, but even the subordinate judiciary was headed by the British. The road near the official residence of the District Judge, Thalasseri still has the name of a British Judge who occupied the bungalow during the British regime. Being unfamiliar with the tropical weather during summer, the Judges, like the teachers of those days, wanted to be away from the country in search of cooler weather. This appears to be the major reason why the system of mid summer recess for the courts came into being. Judiciary is one which attaches much importance to precedents and the system continues to be in force even today.

There are other reasons also justifying the system. The nature of work expected of the Judge is one requiring intense cerebral activity stretched over long hours. He has to focus his attention during the sitting hours on what is argued before him by the counsel for both sides after intense preparations; appreciate and understand the case law and the contents of voluminous records presented before him and as soon as the arguments are over, arrive at a decision on the matters presented before him and proceed to dictate the judgment. Of course provision exists even for deferring the judgment; but resort to that course is insignificantly rare in the Supreme Court and High Courts. By the evening the Judge, naturally gets exhausted. He cannot stop work for the day and proceed to take rest even thereafter. By dusk the cases posted for the next day reaches his residence and he has to go through them and prepare himself. That very often, stretches to smaller hours of the night. The morning hours left before commencement of regular court work at the Bench are also devoted for dictation of judgments in cases where that is reserved and for correction of judgments already dictated on the previous days which would have come up before him by then. The recurrence of the procedure continuously would affect the health of the Judge and he has, per force, to recharge his capacities. Rest for the brain and freedom from strain become essential and this is achieved by giving periodic breaks of few days from the court work. To facilitate and argument the process Judges are given the facility to tour to places of their choice twice in an year with the actual fare involved also reimbursed by the Government. The vacation system facilitates such journeys as well. Then there is the system of transfer of Judges and such transferred Judges who work in other States have to visit their native place for attending to household affairs of importance as well. The vacation is the only period when he can do this without any botheration of the demands of his profession. I am aware that the Courts remain closed for about one week each during the Onam and Christmas period also; but these are only 'holidays' and not titled as 'vacations'. In any case, little work is turned out in other departments also during these festive periods and hence these periods can be justly kept out of the vacation periods of courts. Much cannot be achieved by tampering with these holidays.

The question would arise whether the system of 'mid summer vacation' intended for Judges of foreign origin who were unfamiliar with the sultry weather in India should continue when the entire judiciary in India now is headed by Indians who are attuned to the tropical weather. Of course, there is justification or plausible argument that the vacation system still prevails, without questioning from any quarter, in Schools and Colleges. One of the reasons justifying its continuance there is also that of giving suitable breaks to the intense mental activity expected of the students and teachers. But then the question that could be posed, as far as the judiciary is concerned, would be whether the position of Judges who are well trained to withstand the strenuous demands of the profession can be compared with that of the students. It may also be asked as to why the higher courts and the civil courts should be granted the benefit of vacation when the criminal courts, to wit the Magistrates Courts, judicial and executive, have all along been functioning without the vacation system. Is it that the mental activity involved in their case is inferior to that of Civil Judges? The reason why criminal courts were deprived of the benefit appears to be only that the nature of work involved is such that it has to continue without break; lest of maintenance of law and order and peaceful life of the citizens would be affected. The Police cannot be given vacations for the simple reason that their withdrawal from the duty of continuous crime prevention and booking of cases would affect the maintenance of law and order and increase the crime rate. That appears to have been extended to the criminal courts also. It may also be stated that the decision in civil cases could wait for some time unlike that of the criminal cases where it is not civil rights or properties; but question of life and liberty of citizens is involved. Of course, in matters where human liberty is not involved, matters could wait a little; but then 'a little time' need not be months.

The docket explosion creates serious problems. The attempt to solve the problem through creation of tribunals, special courts, fast track courts, arbitration system, settlement in Lok Adalats etc. have not solved the problem fully. In spite of the working of all these fora, cases go on accumulating notwithstanding the sincere, speedy and hard work put in by the Judges and the malady continues.

While innovations and procedural changes as reportedly suggested by Justice Malimath committee, when implemented, could accelerate the lis resolution process as regards criminal trial, finding of more judicial time also appears essential. True, creation of more Courts may be a part of the panacea; shift system may be another. But all these may involve huge financial commitments for the State; often unaffordable when other pressing priorities are taken into account. Atleast that is what is claimed by the powers that be. While continuing with efforts to increase judge strength and other innovations and pursuing scope for adoption of systems successfully working in other countries, we have also to think of cheaper methods of finding more judicial time within the existing frame work itself. If this is attempted one of the easy answers that might come to one's mind would certainly be curtailment of the vacation system.

As far as Kerala High Court is concerned a valid argument against such curtailment is that it is already providing the extrajudicial time through other means. While High Courts of other States work only for 5 hours a day, in Kerala the working hours were increased to five and half hours, again, through a voluntary decision of the High Court taken a decade or two ago. The vacations for the courts and the holidays, put together, cannot exceed 155 days in an year and the Courts, per force, have to work for not less than 210 days. The extra half hour work turned out in Kerala during these 210 days works out to 105 judicial hours equivalent to 21 normal judicial working days. The question then would be whether the Kerala High Court which already contributes more working hours in an year when compared to the prospective position obtained through abolition of the vacation system should be made to forego the vacations as well.

In the present day, when the National Judicial Commission has not yet taken shape, the answer to the poser has to be found by the Kerala High Court itself. The Summer recess of 2003 that is just over by now lasted for 39 days with 22 normal sitting days in so far as the last sitting before the vacation was on 11.4.2003 and the next regular sitting commenced on 21.5.2003 and the non sitting days including Saturdays and Sundays during the period works out to 17. But then, one may ask the question whether the period intended for furbishing and recharging of brain should extend to as much as 39 days. Will not 2 weeks or so be more reasonable for the purpose when the pendency of cases in the High Court is around 1.25 lakhs? It may be mentioned here that while serving as Judge my own experience was that I enjoy the vacation for the first 2 or 3 weeks and felt that the rest of the period was boring in the absence of any work to be done. Opinions may vary, but I know that there are many Judges and advocates who agree with the said view.

When Sri. Ram Jethmalani, as Law Minister, proposed to provide a 'Code of Conduct' for Judges, the Supreme Court came forward with a voluntary 'In House procedure' to fill the area. That works even now. It is possible that the next 'All India Chief Justices Conference' might consider the impact of the 'Gujarat Model' and discuss the question of atleast reducing the length of the annual vacation, (if not of abandoning it altogether) with liberty to individual Judges to avail of leave and to go on periodic holidays of their choice availing the benefit of Leave Travel Concession which is rightly extended to them with the intention of providing opportunity to furbish and restore the working vigour of Judges. We have to wait and see. But then it is open to the Kerala High Court which once set an example to others by increasing the working hours to decide to follow 'Gujarat' through appropriate changes made effective atleast from 2004. The views of the bar will certainly play a major role in the matter because, after all, the Judges come from the Bar. It is certainly time for a retrospect.