Freedom of the Press v. Rights of the Individual*

The man who invented gun powder provided a deadly deterrent. He did a lot to save the world from the scourge of war. The person who invented the printing press saved man from the ignominy of ignorance. The printing press and paper have transformed the world. The two have combined and kept pace with progress. In the process, the Press has emerged as an independent estate. It provides information. It disseminates knowledge. It plays an important investigative and even 'censorial' role. No man is 'clad in steel'. Every reading man is his judge. The press makes or mars reputations. Today we virtually "live under the government of men and morning newspapers".

Truly the press "is the keenest spur to exertion and the surest of all guards against improbity. The security of securities is publicity". A free Press is essential for the process of popular Government. The smell of the printer's ink is holier than the holy water. It has proved effective in exposing public ills and purging the society of many pests. The freedom of the press is essential for ensuring the freedom of man.

But absolutely liberty can degenerate into a licence. Thus, the right has to be restricted. With every right, the law imposes a corresponding duty. Even the freedom of the press has a price tag. You must respect my right in the same measure as you expect me to respect your freedom. The reporter must be responsible. The Editor must edit. He must separate the grain from the chaff. Then, he must not print the chaff.

"Accuracy to a newspaper is what virtue is to a woman". Sometimes truth may not do much good. However, falsehood can certainly lead to mischief. The journalist must judge. He must ensure that while exercising his freedom, he does not jeopardize the citizen's right. The press has to be relentless in its pursuit of truth. Its sanctity must not be soiled.

It has been said, "newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage". It is true that saucy scandals and spicy stories would sell. But we cannot let commerce close the window to our conscience. Economics cannot outweigh ethics. We cannot allow commercial interests to overtake the national interests. Truth is sacred. It cannot be sacrificed at any cost. No commercial consideration should ever be allowed to pollute the purity of any process. We have to be vigilant all the time. This is the price of liberty. But also the guarantee against any inroad or invasion of the independence of the institution.

And then, in a developing country, the Press has an important role to play. It must be constructive. Not destructive. We cannot use the critical faculty to only find faults. Let us not continuously condemn and criticize every action. Let us not decry and disparage everyone. We need to realize that praise is the wage for virtue, praise is essential for progress. We must give the devil his due. We must condemn the bad. But also commend the good. Let us not foment war and spread hatred. Press should be the preacher of peace. In that lies the salvation of the people.

The Rules did not willingly grant the freedom of speech and expression to the people. It has been a part of man's struggle to free himself from servitude. It has sprung from the people. We must persevere to preserve it. The relationship between the Press and the people must rest on mutual respect. The two shall work for mutual good. That would be good for all.

______________________________________________________________________

* Presidential Address delivered by Hon'ble The Chief Justice Sri. Jawaharlal Gupta at the "Justice K. Sankaran Memorial function" organised by the Indian Law Institute, Kerala Branch on 5th August, 2003.

Hire Purchase Act, 1972 - An Act Suffered Death After Birth

(By V.K. Babu Prakash, Munsiff, Thrissur)

The activity of Hire Purchase has become a common course of business nowadays. As the State is fastly fluxing into a consumer culture haven, Hire purchase schemes are on the run from one consumer to another. In the absence of a systematic statute governing the activity of Hire Purchase, the transactions are governed by the Indian Contract Act and the sale of Goods Act. It thus leaves the matters into the area of a contract thereby giving the parties to choose their own terms and conditions. The financier will always have an upper hand in such transaction as the hirer always approaches him for the finance. Thus the outcome of the transaction which is the Hire purchase agreement will always be unilateral giving much predominance to the rights of the financier over the rights of the hirer. Financier will levy service charge, additional finance charge, process charge etc. on anything and everything which the hirer would not expect or anticipate when he enters into contract. Later, when he makes any default, all these self-styled stipulations will hold him under a siege for a ransom. Most of the Hire purchase agreements contain numerous conditions which the hirer may not be able to read and chew at length while he enters into the transaction. He blindly signs on the agreement as shown by the financier. Always the financier retains the right to repossess the vehicle or goods which are the hypothica under the agreement. This power is exercised by the financier not by any lawful method but by his street - smart - might. The financier knew the lesson that once the vehicle or article is re­possessed, the hirer will crawl before him so that, he can break the spine of the hirer with all sorts of additional finance charges.

As there were no uniform patterns or parameters which governed the terms and conditions of the Hire purchase agreement, Parliament thought it fit to enact a statute on the subject. The outcome was the Hire Purchase Act, 1972. The Hire Purchase Act which aimed at promoting and protecting consumer interest in the country received the President's assent on 8.6.1972. It was after the joint committee of both Houses amended it on the basis of the representations it had received. Thus the Act became the law by virtue of Art.111 of the Constitution. However, as is usual in such circumstances, the Act contained a provision that it would come into force on such a day as the Central Government may by notification in the Official Gazette appoint. The Government issued the first notification on 23.9.72, stating that the Act would come into force from 1.1.73. But before the Act would come into force it was withdrawn. The second date 1.9.73 was subsequently notified in the Gazette. Yet again before the operative date, it was withdrawn by the Ministry of Law, Justice and Company affairs on 23.8.73. Now though 31 years have passed since the enactment of the Act, no further notifications have been passed rendering it operative or in-operative. Neither has the Act been repealed. A representation was moved before the Joint Committee of the Parliament. The committee issued notice and the Ministry of Law and Justice informed the committee that the Government had received several representations against the enforcement of the Act. A strong lobby of the Federation of Indian Hire Purchase Association and the loan sharks of Bombay and Delhi had pulled strings against the Act thereby the executive suddenly withdrew the act from coming into force. The Act primarily passed on the line of Hire Purchase Act of England, 1954. It had been introduced as a bill in Parliament on the specific recommendation of the 20th report of the Law Commission 1968. A motion for reference was made to the Joint Committee which recommended certain amendments. Thereafter it was passed. The Act primarily designed to protect the purchaser or hirer in the Hire Purchase transaction. The legislation sought to introduce the concept of payment of statutory proportion ie., once a certain minimum number of instalments had already been paid by the purchaser, irrespective of the goods involved, the owner does not have the right to recover possession of the goods. The owner or the financier would have to go to a Court of Law and could recover the balance of payment only after the orders of the Court. Ss. 17, 19 and 20 of the Act laid down specific conditions of warranty and guarantee for the protection and benefit of consumer. The Act also contemplated the hirer right to assign whatever he had purchased to another individual. Such progressive enactment was stalled by the executive of the Central Government. The Joint Committee in its report dated 27.4.87 had criticized the act of the Government as follows: "The Act passed in 1972 and assented by the President regulating Hire purchase transaction ensuring the protection of the consumer which is withdrawn is not at all justifiable."

This action of the executive has not only created an unprecedented situation, but also raised serious question of the gradually undermined sovereignty of the Parliament by the executive. It has left an important piece of socio-economic legislation in limbo. The pity is that the act was born as a fully grown healthy baby, whereas, it was strangulated to death by the Ministry of Law and Justice soon after its birth.

Personal Law, Philosophy Behind

(By V.K. Babu Prakash, Munsiff, Trissur)

There does not appear to be a complete agreement on the definition of the expression 'personal law'. What is the scope of personal law? According to Prof. G.C. Cheshire in his book Private International Law, the following matters are to a greater or lesser extent governed by the personal law:

1. The essential validity of a marriage.

2 The mutual rights and obligations of husband and wife, parent and child, guardian and ward.

3. The effect of marriage on the proprietory right of husband and wife.

4. Divorce.

5. The annulment of marriage though only to a limited degree.

6. Legitimation and adoption.

7. Certain aspects of capacity.

8. Will of movables and intestate succession to movables.

It would therefore appear that the personal law is a law that relates to the personal status of individuals. It is for this reason that under the rules of private international law, the personal law is determined according to one's domicile, so that, one would be governed constantly by one and the same law irrespective of one's temporary abode or the place where the cause of action might arise. The personal law of a person according to well accepted principles of private international law is determined by lex-loci which means the law of locality or territory in which a person is domiciled. However in India there is no lex-loci because there is no uniform Civil law regulating the above topics irrespective of the community to which one may belong. The personal law in India therefore has its own ramifications and features. For one thing there is no lex-loci in India, yet for another the personal law of a person varies according to the community to which he belongs. This position was clearly stated by the Privy Council as early as in 1871 in Skinner v. Ford as follows: "While Brahmins, Buddhists, Christians, Mohammedans, Parcy and Sikhs are one nation enjoying equal political rights and having perfect equality before tribunals, they co-exist as separate and from distinct communities having distinct laws affecting every relation of life. The law of husband and wife, parent and child, devolution and disposition of property are all different, depending on each case on the body to which the individual is deemed to belong and the difference of religion pervades and governs all domestic usage and social relations".

Thus, India is a land of personal laws. The proverb 'unity in diversity' does not have any appreciable meaning in the present context of India. The very apt proverb that could be applicable is 'unity is diversity' because of the different and conflicting personal laws which are applicable to different communities all through out India. Even the very same communities at different places have got different kind of personal laws to follow: The personal law in India is the system of rules applicable by any Court to an individual in respect of the topic covered by that law determined by reference to the religion which he professes or purports to profess or is presumed to profess.

The Christians in India to a large extent have to rely on the codified laws and in the absence of specific statutory provisions have to rely on the common law of England. Immovable properties devolved according to the place where the property is situated. In that case a different system of law will begin to operate in regard to the division of one's estate. The personal laws applicable to the Christians in India are largely codified in the form of Indian Succession Act, Christian Marriage Act and Divorce Act. The Christians in Kerala had their own system of law codified in the form of Travancore Christian Succession Act and the Cochin Christian Succession Act which have been superseded by the Indian Succession Act. The Cochin Christians Civil Marriage Act still survives. In the case of conflict which law will prevail has to be decided by the Apex Court. Few people in India may know what law will apply to their estate when they died. A person who is governed by the 'Marumakkathayam' system in Malabar when he is settled in Madras will not know what system will apply because even within the same system, different States have passed laws amending them. These unfortunate situations can be remedied only if the enlightening public opinion in India forces the authorities to pass a uniform Civil Code applicable to the people in India irrespective of their caste, community or religion; It may be that the Muslim population in India has not yet reached a stage voluntarily to accept a uniform Civil Code, but that could not prevent the other communities from subscribing to one single Code applicable to India. When enlightened Muslims opt then a uniform Code can be put forward for the entire population of India. Even among Muslims an option can be given for those who may opt for the common Civil Code. Those who happen to read the provisions under the Indian Succession Act will readily agree that Christian leaders have to take efforts to amend the law accordingly. Even among the Muslim Community different groups exist. These groups do not follow a uniform personal law for very many matters. Shiahs and Sunnis follow different kind of succession rules. Under the prestine Shariath law a Muslim cannot disinherit his legal heirs, i.e., he cannot write a will to exclude those who are entitled to the property otherwise on his death. Only a small portion of the estate could be given under the will. Though this is a good principle, it is not followed by the Muslims in Malabar area as well as in the Union Territory of Lackadives who follow a different system of succession other than the Muslim Law. It is the Mappila Marumakkathayam Act. In another example a Muslim who has chosen to marry under the Special Marriage Act cannot have a recourse to the Muslim Law for the succession of his estate to his legal heirs whereas his rule of succession will be under the Indian succession Act than under the Muslim Law. Thus among the Muslim community also there is no uniform personal law applicable through out the territory of India as well as Kerala.

The domicile of a person will determine the personal law of a person. Therefore if a foreigner has acquired domicile in India having set up a permanent home with the intention of settling in India permanently, he will be governed by the personal law that is applicable to him in India. If he is a Christian the personal law applicable to Christians in India will apply to him irrespective of his nationality, citizenship or domicile of origin. What is the personal law applicable to the Christians in India has been considered by the Full Bench of Kerala High Court in the famous decision Varkey v. Thressia reported in AIR 1955 Kerala 255. The main question that arose for consideration in the above case was whether the wife was entitled to maintenance from her husband under the personal law of Christians in India. The major legal question that was incidently referred to was what is the personal law that governs Christians in India? In the above case the wife filed a civil suit for maintenance for herself and two children from her husband. In the appeal the husband contended that according to the personal law of the parties, both being the Christians the husband is not legally bound to maintain his wife. It may be mentioned that there is no statutory law relating to such questions under the Code of Criminal Procedure a wife to which ever community she may belong can apply to the Magistrate Court for an order for maintenance against her husband who having means neglected or refused to maintain her. But that has nothing to do with the question whether under the personal law the wife has a civil right to claim maintenance from her Christian husband. Thus the Full Bench had to consider what is the personal law that will govern Christians in India and from what source the court can draw a common law applicable in such cases. The court observed as follows: "Under the Canon Law the husband is bound to maintain his wife." The Hon'ble High Court relied on the commentary of Augustine vide Commentary of Canon Law. The learned author says that the husband has the duty of providing his wife with the necessities of life which the civil law further declares. All though the Canon Law referred to above does not as such apply to Catholics belonging to Orient Churches including Syrian Catholics, principles relating to marital obligations embodied in the Canon Law applied to all Catholics. In matters not governed by statute or customary law, it is the principles of justice, equity and good conscience that should apply." The complexity of the personal law applicable to Christians in India has an added dimention in view of the different laws followed in the former French Territories and by the Portuguese colonies in India. For instance the provisions of the Portuguese Civil Code relating to succession both testamentory or non-testamentory are still in operation in the Territory of Goa. These provisions apply both to Hindu and Christian, but not to those treated as foreigners in Goa. When Pondichery was brought under the Indian Union the people of Pondichery were given an option to declare themselves as renoncents and still continue to be governed by the French Law i.e. the Nepolean Civil Code. Thus the picture of personal laws in India does not appear to give a satisfactory outline of rule of succession. It has got different outlook with different communities and their religious sects. Thus time has come up to think about a common civil code by the people of India.

tImSXn PohnXw, Hcp Znhkw

JUSTICE A. LEKSHMIKUTTY

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kabwt]mepw ZpÀe`amtW!

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A§s\ t]mIpw Hmtcm Zn\hpw

BbXp ]ns¶sbmcmhÀ¯\hpw.

\·IÄ hcp¯s«

      To My Beloved Shri Justice K.A. Mohamed Shafi

JUSTICE A. LEKSHMIKUTTY

“\·IÄ hcp¯s«”

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\·IÄ hcp¯s«! Fs¶¶pw PKZoi³.