Heard Both Sides

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

The Judge, in black, sober robes, entered, sidestepped by the mace-bearer; and nodded, disgustingly though, as he tried to make himself comfortable in a chair designed more for effect as a seat of justice, than for comfort for the man dispensing it. There was a deep line cut down from the side of the Judge's mouth, an ineradicable part of him, formed by a conscious effort to gain gravity and authority. There was a dignified authority in the poise of his head and the angle of his physical attitude. How very different the Judge looked on the Bench; much more desiccated on the Bench than in real life.

"Yes", the Judge grunted, thinking big and acting fast, with a nod of sovereign to serf.

The Court Officer called;

"Item No.1, O.P. No............of.............."

A middle-aged senior-looking counsel, possibly a Judge in waiting, stood up, hitched his gown around him and arranged his notes on the lectern before him. And, before the counsel could open his mouth, the Judge, eyes Fixed on his notes, muttered: "Exhibit P3"; and summoned the short-hand writer; and dictated, in toned down voice, audible only by straining the ears, and cupping the pinna:

"Petitioner is aggrieved by Exhibit P2 order transferring him from..........to...............Against Ext. P2, he has made Ext. P3 representation to the 2nd respondent." "Next paragraph".

Heard both sides. The 2nd respondent is directed to consider and dispose of Ext. P3 as expeditiously as possible; at any rate, within a period of two months from the date of receipt of a copy of this judgment". The case was over and out.

The Judge said: "Next"; and observed a dignified reticence. The counsel pretended to be at peace with himself; and lapsed into helpless acquiescence, accepting the mercy and the charity. The Court officer called: "Item No.2 : O.P. No............of.............".

The above 'first information report' shows that nobody was heard. Even the pronouncement was hardly audible. Everybody reacted with a perplexed silence on the brilliant advocacy. Such things happen oftener and oftener, at times in series even. Sometimes the case has yet to be argued but the decision is almost in the bag. It all ended before it was begun. Both sides could claim victory of sorts, heads bowed and body bent, without being heard; and could be looking good for more. The legal profession seems to be injured from shoulder to foot.

Tailpiece: Subko Sanmathi De Bhagwan":

Mahatma Gandhi.

Blanket Ban on Strikes By Labour - A Judicial Excess?

(By Justice V.R. Krishna Iyer)

A serendipitous pronouncement by a Division Bench of the Supreme Court declaring is as it does, regarded by critics as a curial aberration, a broad-spectrum ban on Labour's right to strike without investigating the grave grievances of the employees, over a hundred thousand strong, which the State Government, in alleged intransigence, ignored, leading to the menacingly militant lightning strike. The Court, in its wisdom, disposed of the matter without discharging its adjudicatory function of examining the central issue under challenge viz., the vires of the bizarre, blitz. Ordinance dismissing into the streets, with Draconian severity and stunning celerity, the lakh and odd staff members, sans enquiry under Art.311, sans chance to make representations. The Court, however, was eloquent about the disruptive, illegal, iniquitous, anti-social and unconstitutional dimensions of strikes generally which the Bench felt, held the public to ransom. In an impassioned purple passage, the learned Judge observed:

Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakhs employees go on strike enmasse, the entire administration comes to a grinding halt. In the case of strike by a teacher, entire educational system suffers; many students are prevented from appearing in their exams which ultimately affect their whole career. In case of strike by Doctors, innocent patients suffer, in case of strike by employees of transport services, entire movement of the society comes to a stand still; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among public against those who are on strike.

This is powerful prose but is it legal hermeneutics or jural exegetics carrying judicial authority, or hardly anything more than an emphatic expression of chaos and distress caused by strikes, a view which many may share because of the indiscriminate infliction of social disruption by negligible, irresponsible and disorderly elements unaccountable to anyone and measured by the anarchy they generate. Indeed, the irrational frequency and impertinent frivolity of intimidatory strikes are self-defeating operations which sound trade unionism never sponsors. But are all strikes illegal, immoral, unjust or liable to be suppressed by State authoritarianism, employer reprisal or judicial allergy by angry negation of writ relief? My personal regard for the two Judges on the Rangarajan Bench and the institutional reverence for the Supreme Court, the hallowed home of the human rights guarantee, social justice, jurisprudential creativity and curial remediation (of which I was a humble member long ago) persuades me to critique respectfully but ratiocinatively the Rangarajan ruling which seems to hold all strikes as productive of havoc in a democratic society and bete noire and menace to public interest. To critique is not to carp but to correctively comment in good faith. Trade unions are a legitimate, lawful instrument of the working class and strikes, under necessitous circumstances, are a strategic weapon which has legal sanction under just conditions.

Lord Atkin, in one of his classic judgments, observed what every member of the judiciary in the Commonwealth and elsewhere will do well to remember:

Whether the authority and position of an individual Judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercise the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way; the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken , comments of ordinary men. (Judges P-114)

After all, Judge Jerome Frank of the U.S. Court of Appeal sensibly explained:

In a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions........The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts. (Judges P-205)

The overwhelming majority of our Judges do a difficult job fairly well, commanding confidence of the people nevertheless, as Judge Cardozo elegantly observed, in his book The Nature of the Judicial Process, social philosophy does not pass the judges by. Unwitting infiltration of class bias may creep into their overt impartiality. Professor J.A.G. Griffith, in his book The Politics of the Judiciary, gave reasons to hold that Judges, being but human, may not be immune to class bias, never intentional but subconscious in their surrender to partiality. He quotes Winston Churchill whom I reproduce instructively:

The Courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt biased. (Hon. Members: 'No, no', 'Withdraw' and interruption) The Secretary of Slate for the Home Department (Mr. W.S. Churchill) on the second reading of the Trade Unions (No. 2) Bill, (1911 (26) H.C. Deb. Col. 1022) (The Politics of the Judiciary P. 173).

Lord Justice Scrutton made a similar point:

The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. This is one of the great difficulties at present with Labour. Labour says 'Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?' It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.

Lord Justice Scrutton in an address delivered to the University of Cambridge Law Society on 18 November, 1920 (1 Cambridge Law Journal P. 8). (The Politics of the Judiciary P. 173)

Does it ring a bell in the bosoms of Indian brethren on the high bench? Our Constitution and Court have a vision which the Crown and Law Britannia do not possess.

Did not Lord Atkin in Liversidge v. Anderson hold the House of Lords: 'In this case, I have listened to arguments which might have been addressed acceptably to the court of King's Bench in the times of Charles-1'. Therefore, arguments at the Bar sometimes condition the conclusions of the Bench and public reaction and jurists' evaluation may be reflected in a reconsideration of the law laid down in a decided case. Law never stand still. It is in this liberal spirit and with a constructive purpose that I 'wash in acid' the ratio in Rangarajan and the anti-strike dicta of the Bench,

With due deference, I dissent from the macro-negative proposition based on broad assumption and expressed in paragraph twelve of the judgment. 'Now coming to the question of right to strike, whether Fundamental Statutory Equitable. Moral Right - in our view, no such right exists with the Government employees'. The Court's dicta as pointed out in a passage earlier in this paper, have gone beyond Government servants and condemned strikes as unjustified 'on any equitable ground'. In a mood of benignant philosophy, the court counsels Labour on its patriotic duty.

In the prevailing situation, apart from being conscious of rights, we have to be fully av.are of our duties, responsibilities and effective methods for discharging the same. For redressing their grievances, instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by the authority but also by people at large. The reason being, in a democracy even though they are Government employees, they are part and parcel of governing body and owe duty to the Society. (Para. 21)

This moral message, with a pulpit touch, reads like a judicial addition to Jesus' Ten Commandments. This hortative mantra is a spiritual mandate that workers of the world unite; when you have demands to gain from Government or other employer, work harder, produce more and win the Management's heart! No doubt, our country will be transformed if ministers travel less and work more, if Secretaries visit Delhi less and dispose of files more without paper-logging, if public offices slumber less and devote to duty more, if judges hear with more business - like thoroughness, bring down the appalling backlog of dockets and pronounce judgments to the point without prolonged procrastination. Indian Judges have a tough job flooded by escalating litigation and medieval methodology.

In this very case, having tactfully and gracefully terminated the dismissal order using the good offices of K.K. Venugopal, a creative, compassionate counsel, the dubious incursion into ambiguous Labour Law was perhaps obiter and superogatory. What did counsel, a battery of them, all eminent, do in countering the harsh criticism of strikes? The judgment is silent about their submissions on 'strike jurisprudence'. With curial cynicism, working class leaders and labour lawyers may pardonably be pejorative against his jurisprudence which may be more at home in President Reagan's country and bring solace to Super-Conservative Mrs. Thatcher and may be to multi-national corporations (MNCs) who are allergic to the presence of labour as menace creating unrest.

Our Judges on the high bench are aware not only that India is a socialist Republic but that several provisions of Part IV of the Constitution like Arts.41 to 43A, which are 'fundamental in the governance of the country' have welfare of workers at heart. Indeed, the learned Judges persuaded the Government to take the dismissed workers back as a measure of urgent relief. That shows the concern of the courts for employees. What is hurtful to labour jurisprudence is the castigation of all strikes as vicious. Were we colonial, perhaps the conspiracy theory of strikes might have passed unquestioned. Not so now in Gandhi country. Why, in England of today, trade Union law has nullified the view that strikes are conspiracies. There are situations where the Management is unreasonably recalcitrant and turns down just claims of workers. An observation by Lord Denning, in a dissenting judgment, is relevant. I excerpt a part:

Here we have to consider the right to demonstrate and the right to protest on matters of public concern. These are rights which it is in the public interest individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done. It is often the only means by which grievances can be brought to the knowledge of those in authority - at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights. (The politics of the Judiciary P-146)

Freedom of speech and freedom of association are not mere abstractions nor purposeless inanities. Collective action is implicit in these basic freedoms. In express terms, there is no freedom to strike writ into the Constitution. But collective bargaining for legitimate causes is best served by a creative combination of speech and association, of course, without breach of law and order or transgression of other people's human rights. Once this perspective, sanctioned by constitutional initiative, is correctly and curatively interpreted, industrial jurisprudence becomes a process where both managements and workers have right. When claims are justly made based on the contribution of labour to the progressive profit making capacity of the Industry an arbitrary refusal even to discuss may lead to tension which may mount to the point of peaceful, though militant expression by collective withdrawal from work, otherwise called strike. There is more to strengthen the demand than to destroy the industry or to disturb the peace of the community. Strikes are not a noxious novelty of Indian Trade Unions, but have been in every country where industrialisation has been a part of organized production. Those who are familiar with the International Labour Organisation are not jittery about strikes.

A profusion of citations may be avoided by a reference to B.R. Singh's case ((1989) SCC 710) where Justice Ahamedi, speaking for the Bench, observed:

The right to form associations or unions is a fundamental right under Art.I9(1)(c) of the Constitution. S.8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, eg., go-slow, sit-in, work-to rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it. (1989) 4 Supreme Court Cases 710 para 15)

The right to strike and the conditions under which it should be exercised are found in the Industrial Disputes Act. Indeed, the Bench, in B.R. Singh's case, was dealing with a strike in a Public Sector organisation and the court, on an overall view of the facts and circumstances of the case, held:

Keeping the interest of the institution in mind and bearing in mind the economic hardships that the labour would suffer if the impugned orders are not set aside, we think that it would be desirable to restore the peace by directing the reinstatement of the workers. (1989) 4 Supreme Court Cases 710 para. 22)

A Bench of seven Judges, in the Bangalore Water Supply and Sewerage Board Case, considered in great detail the meaning of the word Industry. A passage from the leading judgment therein is relevant. 'The International Labour Organization has had occasion to consider freedom of association for labour as a primary right and collective bargaining followed by strikes, if necessary, as a derivative right'. In para 62 of the ruling, the Court refers to the Corporation of Nagpur case where the Education Department of Government was brought within the conception of Industry. A plethora of case-law relied on in the leading judgment (in the Bangalore Water Supply etc. case) takes the view that even a hospital run by Government is an industry. Industry implies employers and employees demands and denials of claims, strikes and lockouts and industrial adjudication. Therefore, to exclude the idea of strike from the scope of legality is naive.

It is not without significance that in Gujarat Steel Tube case ((1980) 2 SCC 593) the majority of the bench held that it was a fundamental flaw to equate illegal with unjust strikes. A strike may be illegal by a technical violation, but need not be necessarily unjustified. All that I mean is that a token illegality does not make the strike a gross act of injustice. It is surprising that the dubious legality of the Ordinance, extraordinary in its character and timing, had not awakened the court's jurisdiction into considering the constitutionality of the executive legislation affecting a colossal number of public servants. Some day, some bench of the Apex Court may be conscientised into scanning the constitutional jurisprudence of Ordinance Raj.

In the U.S.A. where 'hire and fire' is the rule, strikes are considered economic terrorism by the mega-corporate controllerate of the U.S. economy. Industrial jurisprudence is labour-friendly in India. Our Constitution, with social justice and industrial equity writ large, shapes labour law. Our robed brethren offer a dignified place to labour as almost a partner in the productive process.

Criticisms apart, the judges in the Rangarajan case need a meed of praise for restoring instantly most of the employees who were sacked by an ireful Government, although it baffles me that Government employees for helping themselves back into office has had to apologize and undertake not to strike ever thereafter. This condition is an ad hoc humiliation which I presume the court never meant.

AN AFTERWORD

In the provocative context of the contra-strike pronouncement, the learned Attorney General, with alacrity and authority, repudiated the theory that the right to strike is anathematic. This historic right cannot run riot nor turn berserk but, within socially sensitive bounds and liberal legal limits, has a permissible home in Indian jurisprudence. We are not a totalitarian State nor subject to Corporate Employer authoritarianism.

I never mean a pejorative reflection on the high bench. The learned judges, with a sense of relief after having secured reinstatement for the bulk of employees, relaxed into a censorious frown and presented a certain point of view not integral to the relief sought or the arguments at the bar. The Court is supreme but not infallible. In a Preface of lovely brevity, Justice Kirpal has rightly stated (in a semi-centennial publication by the Supreme Court):

Many a time, the Court has changed its mind and adapted the law and Constitution to suit India's need. If its work has been appreciated, it has not always escaped criticism...............

We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the Court, though final, is fallible. (Supreme But Not Infallible)

Rangarajan is a case where the Court, though pro tern final, is perhaps fallible.

Cry the Beloved Land Lord

(By T.M. Rajasekharan, Advocate, Calicut)

Lease out your house or shop room and you are doomed. In Issac Ninan v. State of Kerala, the Kerala High Court struck down the S. 5 of the Kerala Buildings (L & R.C.) Act as ultra vires the Constitution of India and void: 1995 (2) KLT 848. Thus there is no scope for you to get the rent enhanced. The law makers are sleeping over this for more than eight years.

The tenant can keep the rent in arrears as long as he desires, since S.11(2) has virtually become useless. Even if an order of eviction is granted by the courts under S.11(2)(b) after procrastinated litigation, in the three stages, the tenant can get the order vacated by merely paying the rental arrears upto the date of notice, still leaving major chunk of the arrears unpaid. Thus held the Supreme Court in Chinnamma v. Gopalan 1995(2) KLT 755.

The tenant can with perfect immunity adopt all possible and imaginary tactics to delay the proceedings before Rent Controller and finally remain ex-parte. He can then file a petition under R.13(2) to get ex-parte order set aside and continue to avoid payment of rent for many years more.

Let us take the case of Mohemmed Moosa: 2003 (2) KLT1058. This unfortunate land-lord did not receive a single paise towards rent from the year 1986 onwards. He is not likely to get any rent in near future, by going through the judgment of the Division Bench. The revisional powers vested in the High Court under S.20 of the Act are wider than those under S.115 CPC as held by the Supreme Court in Rai Chand Jain v. Chandra Kantha Kohsla - AIR 1991 SC 744. Further, even subsequent events which have material bearing on the landlord's right to evict can also be considered by the High Court (AIR 1975 SC 1409). In the instant case, here is a tenant who has successfully avoided payment of rent for about 17 years. Surely the High Court ought to have directed the tenant to pay the admitted arrears of rent instead of allowing him to take shelter under highly technical grounds of R.13(3). With great respect I would like to state that hyper technical interpretation of R.13(3), overlooking the spirit and purpose of S.12 of the Act, should have been avoided by the High Court. In other words, 2003 (2) KLT 1058 needs urgent reconsideration.

Powers of High Court to Grant Interim Reliefs in Contempt of Court Case

(By G. Krishna Kumar, Advocate, Ernakulam)

The question dealt herein is whether the High Court can issue interim orders to prevent repeated breach of its orders and to enforce them pending disposal of contempt of court case. This question gains importance as it is not well settled by judicial pronouncements.

Power to punish for disobedience of its order is a powerful weapon in the armory of High Court and is a solace to the helpless litigant who obtained judgment in his favour after a legal battle. This power is very essential and inevitable for maintaining impartiality, independence, and dignity of the judiciary. In the present scenario we come across many instances where the order of High Court is disobeyed especially by Govt. Officials and the litigant is forced to approach the High Court by filing contempt petition.

It is well settled proposition that the object of punishment is two-fold, both curative and corrective, and is meant to assist an individual complainant to enforce his remedy. Eventhough as a responsible citizen the applicant may have a desire to uphold the majesty of the Courts by subjecting the contemnor to the contempt proceedings, his substantial motive behind the filing of contempt petition is to get redressal of his grievance.

We have wedded to Rule of Law and obedience of Law is foundation of Rule of Law. Lord Denning held in a celebrated judgment1. "The High Court has jurisdiction to ensure obedience to the law whenever it is just and correct to do so". The purpose of the proceedings of Civil Contempt is described by eminent Jurist Oswald2. "If on the other hand, the contempt is mere disobedience to an order of the court in a civil action it is not criminal, and in such a case the punishment is only ordered for the purpose of enforcing the order in the civil action, and proceeding is by attachment or committal, or in the case of a corporation, by sequestration". Sequestration is a mode of writ issued by Courts in western countries including the Courts in U.K. to enforce its own orders. My humble view is that law without justice is nothing but a lawlessness. In a landmark decision3 the Apex Court speaking through His Lordship Justice V.R. Krishna Iyer held "The root of the grievance and the fruit of writ, are not individual but collective and while the 'adversary system' makes the judge a mere umpire, traditionally speaking the community orientation of the judicial function, so desirable in the third word remedial jurisprudence, transforms the courts power into affirmative structuring of redress so as to make it personally meaningful and socially relevant."

In view of the above proposition and decision cited infra the High Court can pass further direction and orders to enforce its own order apart from punishing the contemnor for violating its order4. In the backdrop of above discussions and in view of the power invested with the High Court to punish the contemnor, we have to examine the modalities adopted by the courts to achieve the goals for which the powers are invested with them. In this context, it is worthwhile to consider the scope of 'interim orders' in contempt proceedings to safeguard the rights, privileges and benefits accrued to the applicants by virtue of orders passed by the Courts in their favour.

Sometimes consequential orders alone will not help the party unless he gets urgent interim relief against the repeated/continuous breach of the order/direction of High Court. Naturally the question will arise whether High Court is having power to pass interim relief in contempt of court case pending final disposal.

High Court is not a mere spectator when its orders are flagrantly violated day in and day out. Power of High Court is not restricted only to punish for its own contempt and its powers prescribed in procedure of contempt of its own order, are not in any way regulated by Contempt of Courts Act, 1971 alone. Source of powers of the High Courts in contempt of court matter originates from Art.215 of the Constitution of India. Art.215 of the Constitution of India declares that every High Court shall be the Court of record and is vested with all the powers including power to punish for its own contempt.

Art.215 clearly describes the powers of High Court in contempt matters. The power invested with the High Court is 'all the powers including power to punish for its own - contempt'. As a court of record, High Court shall have all the powers of such Court. The 'inclusive power to punish for its own contempt' expands the scope of the powers of High Court, It is settled legal proposition that the term 'inclusive' expands the scope of the provision, and is not restrictive in nature.

Contempt of Courts Act is a Law for initiating proceedings against contemnor. Does it mean that power of High Courts are regulated and governed by the Contempt of Courts Act and High Court cannot grant interim reliefs and directions in contempt matters in favour of the helpless litigant who is suffering from legal injury on account of disobedience of the order by contemnor as there is no such provision in the Act which enables High Court to issue interim directions? Even in the absence of specific provision in the Contempt of Courts Act to grant interim reliefs, the High Court can grant interim reliefs and direction in favour of a helpless litigant by invoking its powers under Art.215.

It is true that there is no provision in the Contempt of Courts Act, 1971 specifically empowering the High Court to grant interim reliefs pending for contempt proceedings. Contempt of Courts Act is not a self contained enactment or an exhaustive substantive law in the field. Applicability of High Court Act and Rules is not excluded by the Legislatures in Contempt of Courts Act. As per S.23 of the Contempt of Courts Act, High Courts and Supreme Courts are invested with the power to make rules for matter relating to procedure in contempt of court cases. By invoking the power under S.23 of the Act, Kerala High Court has framed, the Contempt of Courts (High Court of Kerala) Rules, 1988. The Rules also do not exclude the application of High Court Rules.

R.21 of Contempt of Court (High Court of Kerala) Rules says as follows:

R.21. Application of the High Court Rules: In matters not specifically provided for in these rules the procedure prescribed in the rules of the High Court 1971, as amended from time to time shall mutatis mutandis apply to the procedures under these Rules.

In the absence of non obstante clause in Contempt of Courts Act, 1971 and Rules therein and also in view of R.21 of Contempt of Courts (High Court of Kerala), R.150 of Kerala High Court Rules are applicable to contempt proceedings and there is no embargo even as per the Contempt of Courts Act, to grant interim reliefs to a party.

Apart from the above, it is well settled Legal Principle that the Courts are invested with all powers and procedures for dispensing justice unless otherwise specifically prohibited by law. In a landmark decision the5 Allahabad High Court held......."The Courts are not to act upon the principle that every procedure to be taken as prohibited unless it is expressly provided by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by Law". This view was approved by the Apex Court in a recent decision6. The Division Bench of Kerala High Court in a landmark decision7 held 'All procedures and powers are open to the court unless otherwise specifically prohibited by law.' As per this Principle also the court cannot refuse interim relief by saying that there is no provision in the Contempt of Courts Act to grant interim reliefs.

Well known authorities in contempt jurisprudence are of the view that8 'the Court also has power to bind over a contemnor to be of good behaviour, to grant an injunction restraining the repetition of the contempt and to penalize the contemnor with an order to pay the costs of the contempt proceedings". In yet another decision 9Lord Denning held that 'In any event there are some circumstances in which immediate compliance would be essential and where injunctive reliefs is particularly appropriate to secure this end'.

So in my humble view, the High Courts are invested with the power to pass interim reliefs in contempt matter. Taking a contrary view will certainly lead to injustice to the affected parties and in turn to the society at large.

________________________________________________________________________

1. AG v. Chaudhry, (1971)3 All ER 938 at 947.

2. Oswald, Contempt of Court, 3rd Edition, P. 8.

3. State of Kerala v. T.P. Roshana, AIR 1979 SC 765.

4. Hasting Mills v. Hirasingh, 1978 Cr. L.J. 560 Cal.; K. Veeraiah v. Venkateshwarlu, 1986 Cr. L.J. 2065 Andhra; Mohammad Idris v. Rustam Jahangir Sapuji, AIR 1984 SC 1826; Thanewala v. Shri K.M. Shetty, AIR 1990 SC 464; Delhi Development Authority v. Skipper Constructions, AIR 1996 SC 2005.

5. Narsinghdas v. MangalDubey, ILR (1883) 5 All 163 (F.B).

6. New India Assurance Co. v. Sreenivasan, 2000 (2) KLT 462 SC.

7. M. G. University v. Milu Dandapani, 2000 (1) KLT 351

8. Arlidge and Eady : The Law of Contempt of Court, P. 313.

9. A.G.v.Chaudhry, (1971)3 All.ER 938.

Whether Decisions of the Speaker of the Legislature Justifiable?

(By N. Dharmadan, Senior Advocate, High Court)

The office of Speaker is held in high esteem in British House of Commons. It has been adopted in America, Canada, Australia, India etc. The Speaker is the Presiding Officer in the Legislative body. He is an elected member of the House. He presides over the House and controls the proceedings. He is duty bound to uphold dignity, decency and decorum of House. He takes decisions in the course of debate or in respect of matters connected with the "proceedings of the House". His authority is supreme. Question is whether his decisions are justifiable or liable to be questioned in any Court.

Arts.105 and 194 deal with powers, privileges and immunities of the House and members of both Parliament and Legislatures. Sub-Art.(3) of both the above articles is the relevant provisions for discussion. It provides that powers, privileges and immunities of (i) the House, (ii) the members and (iii) the committees of the House, "shall be such as may be defined by law". This provision will apply in relation to persons and proceedings in the House. So far there is no such law defining and limiting powers, privileges and immunities and there is no definition of the term "proceedings" in the Constitution. So precedents alone would be the guide.

Sub-Art.(3) of both the Articles is modeled after powers, privilege and immunities of legislatures of the British Parliament before the enactment of the Constitution ie., 26 January 1950. The privileges of the House of Commons have been defined as:

"the sums of the fundamental rights of the House and of its individual Members as against the prerogative of the Crown, the authority of the ordinary courts of law and the special rights of House of Lords........  When any of these rights and immunities of the Members, individually, and of the assembly in its collective capacity, which are known by the general name of privileges, are disregarded or attacked by any individual or authority, the offence is called a breach of privilege, and is punishable under law of Parliament". (Quoted in May, Parliamentary Practices, 17th Edn. page 42 and 43).

The members of the House have freedom from civil arrest for forty days before and after the meeting of Parliament. They are not protected from arrest of criminal charges. But such arrest must be immediately communicated to the House. They have got full privilege and freedom of "speech, debate and proceedings". Freedom of speech as well as debate is inevitable for it is necessary for the proper functioning of the House.

"A proceeding in Parliament" in not defined either in the Constitution of India or its counter-part in England. It is not easy to define. This term had been defined in various statutes and interpreted in various senses. But the word "proceedings" in a general sense means an action or any step by which such an action is involved or initiated. It is not a technical expression with a definite meaning. "The term 'proceeding' is frequently used to denote a step in an action, and obviously it has that meaning in such phrases as 'proceeding in any case or matter". (Halsbury Laws of England, Vol. I page 5). "It includes everything said and done by a Member in the exercise of his functions as a member in a committee of either House as well as everything said or done in either House in transaction in the Parliamentary business". (May, Parliamentary Practices, page 62).

It has been finally established in Bradlaugh v. Cossett ((1884) 12 QB 271) that for all practical purposes the 'House of Common' is not subject to the control of the courts in its "administration of that part of statute law which has relation to its initial procedure". (May, Parliamentary Practices, page 60). It was further held in this case that "House of Parliament was not.a Court of justice, but the effect of its privilege to regulate its own internal concerns practically invested it with a judicial character when it had to apply to particular cases the provisions of Acts of Parliament, and if it came to a wrong conclusion, this resembled the error of a court whose decision was not subject to appeal".

In this connection it is pertinent to note that the power of the House to enforce its privileges and to commit for contempt is itself a privilege of the House. "The House had sole and exclusive jurisdiction to determine the existence and extent of its privilege" that to dispute those privileges by legal proceedings was a breach of privilege; and that for any court to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament was contrary to the law of Parliament". (Ibid, 159-60). So the House of Commons claims to be exclusive judge of its own privileges and its judgments are not subject to appeal. They cannot be scrutinized by any court. The decision of courts are not accepted as binding on the House in all matters of privilege, nor the decisions of the House by the Court.

Thus, according to Maitland, (Maitland. Constitutional History of England, page 378). "it would seem that the House has a legal power to turn into a contempt just what it pleases, and the same may be said of superior court of law". Dicay (Dicay, Alaw of Constitution, page 57) also said "Either House of Parliament has the fullest power over its own proceedings, and can, like the Court, commit for contempt any person who, in the judgment of the House, is guilty of insult or affront of the House", Sir Ivor Jennings (Sir Ivor Jennings - Law and the Constitution, page 114-115) clearly stated "Laws of England deal with three kinds of rules, legislation, the case law of the courts and the laws and custom of Parliament". With regard to the privileges of British House of Commons it has been held by the Privy Council, repeatedly, in Fenton v. Hampton, ((1858) 11 Moo. C.347), Doyle v. Falconer ((1866) 1 P.C. 329) and Supreme Court of Legislative Assembly of Victoria v. Glass ((1871) 3 P.C. 560) that "it has been well established in this country that the House of Commons has the right to be judges of themselves of what is contempt and to commit for that contempt by a warrant stating that the committing was for contempt of the House generally; without specifying what the character of contempt is".

From the above discussion and decisions of Privy Council it is to be presumed that as on 26.1.1950, the House of Commons had the "inherent power" to do whatever was necessary to carry on the business in the House in an orderly manner. So long as this is the position in England on the relevant date the very same power can be imported to India under Art.194(3) of the Constitution of India, since there is no separate law defining powers, privileges, immunities etc. The framers of the Constitution had drafted Art.194(3) only after adverting to the privileges existed in British House of Commons, analogous provisions in Government of India Act, 1935 and the above principle laid down by the Privy Council.

Dr. Ambedkar, the Chairman of the Drafting Committee, was fully aware of the then prevailing position of British House of Commons as on 26.1.1950 and he intended to confer the same power on the Indian Parliament and State legislatures. His arguments in the Constituent Assembly debate (Constitutional Assembly Debates Vol. Ill page 582) is very relevant. It is extracted below.

"If we were only concerned with these two things, namely freedom of speech and immunity from arrest, these matters could have been very easily mentioned in the article itself and we would have had no occasion to refer to the House of Commons. But the privileges which we speak of in relation to Parliament are much wider than the two privileges mentioned and which relate to individual members. The privileges of Parliament extend, for instance, to the rights of Parliament as against the public. Secondly, they also extend to rights as against the individual members. For instance, under the House of Commons' powers and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important privilege. Then again, it is open to Parliament to take action against any individual member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are very grave matters - eg., to commit to prison. The right to lock up a citizen for what Parliament regards as contempt of itself is not an easy matter to define. Nor is it easy to say what are the acts and deeds of individual members which bring Parliament into disrepute".

Art.194(1) & (2) specifically deal with two of the privileges of the House of Common viz., freedom of speech and absolute immunity in respect of it and the right of the House to authorize publication of its proceedings. But the third one viz., the inherent power" and the view expressed by the Privy Council in the above cases explaining, "other proceedings" is silent in the constitution. However, it is stated in Art.194(3) that the powers, privileges and immunities of the House in respect of 'other matters' had been defined only with reference to the privileges of the British House of Commons as on 26.1.1950 till the legislature in India defined those privileges by law.

The rules made under Art.208, rule making power for regulating the procedure and conduct of business of the House, shall be subject to the provisions of the Constitution. Therefore such rules cannot contravene the provisions of fundamental rights in Part III of the Constitution. But it has been laid down by the Supreme Court ‘In re. Under Art.143 Constitution of India' (AIR 1965 SC 745) that Art.19(1)(a) does not control Art.194(1) & (2). Clause (2) of Art.194 makes the freedom under clause (1) unfettered and absolute. But there is a limitation in Art.194(3). That was made clear by Supreme Court. It was held that it is necessary to enquire whether the power, privilege and immunity claimed is existing as on 26.1.1950. If it does not exist no such privilege can be claimed. It is under these circumstances that the decisions of the Privy Council referred to above become relevant. It has been laid down that the House of Parliament has the fullest and absolute power over its own proceedings. In other words the House has "inherent power" to do whatever is necessary for carrying on the business proceedings of the House.

The Speaker's immunity for his actions and decision in connection with the proceedings of the House in exercise of his "inherent power" has not been specifically dealt with or examined by the Courts in India. In the light of the privileges of British House of Commons existing as on 26.1.1950 and the dictum laid down by the Privy Council Art.194(3) Speaker's privileges need a fresh look.

The earliest reported case in which there is some discussion about the scope of Art.194(3) is M.S.M. Sharma v. Sreekrishna Sinha (AIR 1959 SC 395). In this case the question pertaining to the validity of the resolution passed in the House of Bihar Legislature directing expulsion of a Member came up for consideration before the High Court. The Court held that the order is void since no opportunity was given to the affected party; but dismissed the case relying on Art.212(1). According the Court there was no irregularity. In appeal the Supreme Court by majority held that the later part of Art.193(3) confers on the House of Legislature all the powers, privileges and immunities of the House of Commons on the date of commencement of the Constitution. It has further held that Art.105(3) & 194(3) are Constitutional laws and therefore they are supreme as fundamental rights in Part III of the Constitution. The Court also adopted the principle of harmonious constructions and said that "the provisions of Art.19(1)(a), which are general, must yield to Art.194(1) and the later part of its clause 3, which are special.

The next important case dealing with issue is 'In re, under Art.143, Constitution of India'. It was a case of reference by the President formulating five questions under Art.143(1) of the Constitution, when the Full Bench of 28 Judges of Allahabad High Court passed an interim order on a petition challenging the resolution of the House to take action against two of the learned Judges of that Court, making the situation very tense on the verge of collusion between two important pillars of the State viz., the judiciary and Legislature. The Supreme Court while answering the reference stated that when there is a conflict between privilege under Art.194(3) and fundamental right such "conflict has to be resolved by harmonizing the two provisions. It would be wrong to say that the fundamental right must have precedence over the privilege simply because it is fundamental right or for any other reason".

It was made clear in the majority judgment that the Indian Constitution conceives the Judiciary and Legislature, as two different organs of the State having independent specified functions. So mutual respect is necessary to uphold the democratic spirit. However Art. 19(1)(a) would be subject to Art.194(3), but Art.21 well operate notwithstanding the provisions of Art.194(3). However, the Court, in para. 127, said that it did not propose to enter into a general discussion as to the applicability of all the fundamental rights vis-a-vis the privileges of the House and concluded stating that the conflict, if any, between the two important institutions should be resolved for keeping the prestige of them in public interest.

H.M. Seervai (H.M. Seervai - Constitutional Law of India, Vol. Ill, page 1835 & 1837) criticised this conclusion of the Supreme Court on two grounds (i) The conclusions of the Supreme Court in this case are conflicting for "such a decisions would be opposed to its own decision about resolving a conflict between two independent provisions of Constitution by applying the rule of harmonious construction" and (ii) the advisory opinion of the Supreme Court has no binding effect in its strict sense. According to Seervai the Privy Council (Alt. Gen for Ontario vs. At. Gen for Canada (1912) AC 571T 589)) has in a similar matter held that "an advisory opinion affects no rights and is no more than the opinion of law officers".

The Full Bench of the Kerala High Court in State of Kerala v. Sudarsan Babu (1963 KLT 764 (F.B.)) held that on limited ground, writ will lie against Speaker and that the Speaker is not immune from scrutiny by courts. There is no absolute immunity. According to the Court "to say that the act of the legislature of the State or any of its members or the Speaker would be immune from scrutiny by Courts under any circumstances is to pitch the claim too high; "petition under Art.226 would be maintainable even against the Legislature". This is a case in which High Court issued notice on a petition filed by the reporters of press, challenging the order of the Speaker denying pass to them. It seems that the Government had filed appeal against the judgment.

In P.V. Narasimha Rao v. State (AIR 1998 SC 2120) the question which arose for consideration was whether a Member of Parliament can claim immunity from prosecution on a charge of bribery in criminal court. The scope of Art.194(3) - 105(3), in the perspective in which it is examined above, was not at all an issue in that case. The accused in this case were alleged to have received bribe for giving vote in Parliament in a particular manner in terms of the request made to them. The Court considered only the claim of immunity under Art.105(2). The majority opinion is that "The immunity would not be available to give protection against liability for an act that precedes the making of the speech or giving of vote by a Member in Parliament................The liability for which immunity can be claimed under Art.105(2) is the liability that has arisen as a consequence of the speech that has been made or the vote that has been given in Parliament".

In the above cases the justifiability of the decision taken by the Speaker relating to the proceedings' of the House both inside or outside, was not an issue nor was it focused in the proper perspective for consideration in the light of the law laid down by the Privy Council.

An authoritative pronouncement on the scope and ambit of Art.194(3), importing the "inherent power" of the British Parliament as laid down by the Privy Council, is yet to be made by the Apex Court. Since the decision of the Speaker, outside the House on matters connected with the 'proceedings' of the House, was not under challenge so far it did not arise for specific consideration by the Apex Court.

The Speaker being the representative of dignity of the House would be compelled to take bona fide decisions both inside and outside the House while discharging his duties in the capacity as Speaker. They are not justifiable so long as there is no law defining the powers privileges and immunities of the House. So when once a privilege is held to exist it is for the House to judge "the occasion and its manner of exercise". The court cannot interfere with an erroneous decision of the Speaker of the House in respect of breach of privileges.

A smooth functioning of three institutions of the Government in the imperative need for progress in the Indian democracy. So when dealing with the questions affecting the powers, privileges and immunities under Art.194(3) the courts should adopt a creative and constructive role. A validation oriented approach should be the philosophy of the statutory construction to uphold the prestige of both the Judiciary and the Legislature. The Supreme Court has held that a mutual respect is necessary to uphold the democratic spirit. Reconciliation principle should be adopted by judges who are the "mediators between the societal tenses" and warring groups. It is to be borne in mind that Indian Constitution is a unique document. It upholds certain principles and values. One of such value is to maintain mutual respect to uphold democratic spirit when questions affecting conflicting rights of Judiciary and Legislature arise for consideration. Courts should show some judicial restraint to maintain mutual respect for avoiding collusion between the important institution of the executive, judiciary and legislature. This proposition has Presidential support.