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      To My Beloved Shri Justice K.A. Mohamed Shafi

JUSTICE A. LEKSHMIKUTTY

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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.

Code of Civil Procedure (Amendment) Act 22 of 2002 - An Anomaly

(By T.G. Rajagopalan, Advocate, Palghat)

The Amendment Act of 2002 has introduced several provisions which are conflicting with the provisions under the original Act. One such patent anomaly which was noticed recently relates to the procedure for attachment of property situated outside the jurisdiction of the court which passed the decree. The relevant provisions are S.46 and S.136.

S.136 relates to the procedure for effecting attachment of property outside the jurisdiction of the court not relating to execution of decrees. This is mainly intended for effecting attachment before judgment under O.XXXVIII, R.5. The court can issue an order of attachment and send it to the District Court within the jurisdiction of which the property is situated and that District Court effects attachment in the manner provided under S.136(2)(3) & (4). Once this is done this will be treated as an attachment in execution and the decree holder after obtaining the decree can get the decree transferred to the court within whose jurisdiction the property is situated and apply for the sale of the property in the manner provided under O.XXI.

S.46 is a similar provision by which the court which passed the decree may issue a precept to such court which would be competent to execute the decree by attaching the property. The procedure is prescribed under S.46(2) which is similar to S. 136 except for the difference that the precept need not be send through the District Court. The proviso to S.46 provides that the attachment will continue for 2 months or for such period as extended by the court so as to enable the decree holder to get the decree transferred to that court for proceeding further.

The circumstances under which the decree could be transferred is provided in S.39 sub-ss.(1), (2) and (3). The court is enabled to transfer the decree if the J.D. resides outside the jurisdiction of the court which pass the decree or the property is situated outside the jurisdiction of that court. Thus the power of the court to attach the property situated outside its jurisdiction and the procedure to be followed including the procedure for transfer of the decree are provided harmoniously in Ss.39, 46 and 136.

The Amendment Act of 2002 has introduced sub-s.(4) to S.39 which reads thus: "Nothing in this section shall be deemed to authorise the court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction". The purpose of this amendment is not clear. If the word "to execute such decree" is construed as an embargo even to entertain an application for attachment it will be directly in conflict with S.46. On the other hand applying the well known rule of construction which requires a construction which will avoid conflict between two provisions, this is construed as an embargo against proceeding further with execution including that of bringing the properties to sale, it is unnecessary since S.46 expressly provides for that. In that case sub-s.(4) will become otiose.

The Legislature should immediately step into to delete sub-s.(4) of S.39 and avoid difficulties in procedure. An authoritative decision from the Hon'ble High Court or Hon'ble Supreme Court is necessary on this point.

Judicial Review on Disability and Lawyers' Reasoning

(By P. Ratnavally, Advocate, Palghat)

"The origin of Goddess of Justice goes back to antiquity. She was referred to as Maat by the ancient Egyptians and was often carrying a sword with an ostrich feather in her hair (but no scales) to symbolize truth and justice. Classical representation of Themis did not show her blind folded (because of her talent for prophecy, she had no need to be blinded) nor was she holding a sword (because she represents common consent, not coercion). The term Magistrate is derived from Maat because she assisted Osris in the Judgment of the dead by weighing their hearts. But the Roman Goddess of Justice Justita was holding balancing scales and a sword and wearing a blindfold. Because it was impossible for justitia to pronounce judgment without fear".

1. Tooth is one of the numerous dental structures that develop in the jaws as part of the digestive system and are used to cut bite and grind food. Three functionally differentiated groups are distinguished; one of biting teeth and two of grinding consists of the incisors and canines. The incisors have a cutting edge on their crown; the canine teeth differ from them in having six on each jaw, three to the left and three to the right of the midline. The Group of masticating teeth consist of the eight premolars (four on each jaw) and 12 molars (six one each jaw). On both sides of each jaw there are two premolars next after the canine teeth; these are followed by three molars. The masticatory surface of these teeth is multicuspidate; the upper molars have four cusps, and the premolars two cusps each. Each tooth consists of a crown which projects above gum; two to four roots embedded in the alveolus; and a neck, which stretches between the crown and the root. Each tooth also contains a cavity filled with pulp, richly supplied with blood vessels and nerves that enter the cavity through a small aperture at the base of each root. The solid portion of the tooth consists of dentin, enamel and a thin layer of bone on the surface of the root. The dentin comprises the bulk of the tooth. The enamel covers the exposed portion of the crown. Two deciduous teeth appear at different periods of the life, the 20 deciduous teeth appear during infancy, the 32 permanent teeth during childhood and early adult hood.

2. When a tooth gets chipped or fractured the first consideration must be whether the pulp the vital living portion of the tooth has been damaged. If a structure is sensitive, painful or uncomfortable, it may be because the pulp is exposed. Ultimately, the condition of the puip and the amount of remaining tooth structure will determine the choice of treatment. Minor tooth fracture can be repaired by using sand paper. In the case of serious fracture root canal treatment is possible. But in vertical root fracture only extraction is the answer.

3. Mc Bride in his Book on Disability Evaluation supplied a formula to assess the disability in the case of loss of teeth. In the case of loss of all teeth replaceable with prosthesis the permanent disability as a whole furnished is 15%. So that; in the case of loss of one tooth the disability is .5% (1/2%). Of course loss of tooth is a disability, but it is mild and negligible in nature and that will not attract S.140 of the M.V. Act. It was held in 2000(1) KLT Page 516 to the effect that loss of teeth of the petitioner is not a permanent disablement attracts S.142 of the Motor Vehicles Act. If the tooth is used as weapon of offence to the human being as part of his anatomy as used by human beings in the olden days like animals or punitive man, the said loss can be considered as a member or joint. The American Association of Oral and Maxillofacial Surgeons 2002 defined the terms impairment, disability and handicap in a positive manner. Impairment means an alteration of an individual’s health status that is assessed by medical means loss or use of a body part, system of functions. Whereas disability means, an alteration of an individual's capacity to meet personal, social or occupational demands or to meet statutory or regulatory requirement. It assumes a medical impairment exists. For example: Impairment: Loss of finger. For a person who is a singer, this in fact would be impairment, but nota disability. For an individual who is a typist, this could represent significant disability in their work as a typist. The Federal Rehabilitation Act of 1973 and Disabilities Act of 1995 of India, identifies a handicapped individual as one who has an impairment and substantially limits one or more life activities including work, has a records of such impairment and this impairment can be overcome only by compensation ie., artificial limb etc.

4. In the Maxillofacial Surgeons Conference 2003 Papers were submitted. In the case of all teeth missing or not in functional occlusion could be assigned an impairment value of 5% of the dental system for molars and 3% of the dental system for incisors. If the whole person impairment value based on premature loss of teeth or teeth not in functional occlusions is less than that of total restriction to liquid diet, the greater value of a whole person impairment assigning 20-30% loss of whole person impairment based on a liquid diet should be used. In the case of Masticatory Dysfunction it is supplied that eating involves the function of the teeth, jaws, muscles of Mastication, muscles of deglutition and temporomandibular. In addition, it requires the ability of a person through lip, tongue and muscle function to be able to swallow food, loss or change in the functional relationship of any of these anatomic physiologic components of the system will result in a functional change for the individual.

5. Loss of teeth and/or dentoalveolar structure (underlying osseous or soft tissue structure) may be due to trauma, developmental condition, or associated disease eg. extraction indicated for radiation therapy. There is distinct and measurable variation between forces generated by natural dentition versus patients with prostheses (full removable denture). Maximum bite forces appear to be five to six times less for complete denture wearers. In addition many prosthetic patients select foods that require reduced masticatory capability. Patients may also develop adverse sequelae with tooth loss including speech difficulties and associated psychosocial problem secondary cosmetic change. The following recommendations are made for determining the impairment rating of the individual loss based on the contribution of each component to the masticatory system. However reconstruction with prosthesis after a loss of definition.

Patient restricted to                  40-60%irnpairmentofthewholepersoniffeeding

liquid foods                                tube is necessary

Loss of Dentition with                  5-9% impairment of whole person whole person

ability to wear dentures               if restricted to semi-solid and soft food (AMA Guide Ed5)

A person missing 30 teeth with prosthesis is not usually on a liquid diet. Therefore 0% 8% for loss of teeth-injury model.

6. Since the disability is scheduled, there is a doubt that is whether the 2000 (1) KLT P. 516 can be followed or not. In view of the new schedule of impairment released by American Association of Oral and Maxillofacial Surgeons 2002, the decision rendered in 2000 (1) KLT P.516 has to be reconsidered.

An Unqualified and Compulsive Certification Cast upon the Court

An Analysis on Section 53A of the Abkari (Amendment) Act, 2003

(By S.H. Panchapakesan, Judicial First Class Magistrate, Haripad)

The Abkari Act, 1077 (Act 1 of 1077) has been amended by the Abkari (Amendment) Act, 2003 (Act 1 of 2003)* (For short ** "the Act"). A new Section - S.53 A has been inserted in the Abkari Act by way of this amendment. S.53A provides for the disposal of seized liquor, intoxicating drugs or articles. Sub-s.(1) of S.53 A of the Act empowers the State Government to issue notification authorising the authorised officer referred to in S.67B of the Abkari Act to dispose of such nature of liquor, intoxicating drug or articles, as are notified (after its seizure) after following the procedure laid down in sub-s.(2) to (4) of S.53A of the Act.

As per sub-s.(2) of S.53 A of the Act, on seizure of any notified liquor, intoxicating drug or article, as the case may be, the authorised officer shall prepare an inventory of such liquor, intoxicating drug or article. Such an inventory shall contain such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they are kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor; intoxicating drug or article in any proceeding under the Act.

The very same sub-section further provides that after preparing the inventory as stated above, the authorised officer has to make an application to any Magistrate having jurisdiction over the area where the seized liquor, intoxicating drug or articles are stored for the purpose of:

(a) certifying the correctness of the inventory so prepared; or

(b) taking in the presence of such Magistrate, photographs of such liquor, intoxicating drug or article and certifying such photographs as true; or

c) allowing to draw representative samples of such liquor, intoxicating drug or article in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

As per sub-s.(3) of S.53A of the Act, on receipt of an application made under sub-s.(2), the Magistrate shall, as soon as may be, visit the place where such liquor, intoxicating drug or articles are stored and take appropriate steps as specified in clauses (a), (b) and (c) of sub-s.(2), and allow the application. (The word 'or' appearing in clauses (a) to (c) of sub-s.(2) is seen replaced by the word 'and' in sub-s. (3))

A sagacious analysis of sub-s.(2) & (3) of S.53A of the Act would reveal that the provisions therein may lead to a situation, in which, the Court may be compelled to certify the correctness of a document (ie., the inventory to be prepared under sub-s.(2)) which contains a fact of which, the Court may not have any kind of knowledge.

As stated earlier, as per sub-s.(2) of S.53 A of the Act, on seizure of any notified liquor, intoxicating drug or article, the authorised officer shall prepare an inventory of such seized item. The said sub-section directs that among other aspects, such an inventory shall also contain the details regarding the quality of the seized item. Such an inventory is directed to be prepared with a view to identifying the liquor, intoxicating drug or article in any proceeding under the Abkari Act. So, even as per the said sub-section, quality of the seized item is material in any proceeding under the Act.

But S.53A of the Act does not prescribe any particular mode of analysis or examination, which would enable the authorised officer or the Magistrate to ascertain the quality of the item seized.

Quality is a distinctive feature. It denotes the standard of how good something is as measured against other similar things. So no one can make an assessment on the quality of the liquor or intoxicating drug or article seized with bare eye or any other sense organ.

Quality of the liquor, intoxicating drug or article, as the case may be, can be ascertained only through proper chemical analysis of the representative sample of the item seized. In the absence of such scientifically proved or approved mode of chemical examination, neither the authorised officer nor the Magistrate (who is bound to certify the correctness of the inventory to be prepared under sub-s.(2) of the Act) can have bona fide knowledge or belief on the quality of the liquor or intoxicating drug or article seized. Such a foresight may be humanly impossible.

As stated earlier, the inventory to be prepared under sub-s.(2) of S.53A of the Act is intended to identify the item seized in any proceeding under the Abkari Act. Moreover, sub-s.(5) of S.53A of the Act provides that notwithstanding anything contained in the Indian Evidence Act, 1872 (Central Act 1 of 1872) or the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), any Court trying an offence under the Abkari Act shall treat the inventory prepared under sub-s. (2) of S. 53 A as the primary evidence in respect of such offence.

So the inventory to be prepared under sub-s.(2) of S.53A of the Act is having prime evidentiary value, as it directs a new presumption under the Abkari Act, superseding all the legal requirements as provided in the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973.

Therefore, each and every content in the inventory shall be accurate and in tact in every respect. As the inventory is directed to contain particulars regarding the quality of the item seized proper mode of analysis or examination to ascertain the quality of the item seized prior to the preparation of the inventory ought to have been stipulated in sub-s.(2).

In the absence of such a provision, the inventory cannot be considered to be the one, which contains a truthful fact as to the quality of the item seized. In such circumstances, it may not have legal sanctity and may become difficult to be admitted in evidence. In other words, if such an inventory is accepted as the primary evidence in a proceeding under the Abkari Act (as provided under sub-s.(5) of S. 53A) it would be against the basic and settled principles of criminal jurisprudence. It would also amount to the violation of natural justice, equity, fairness and sound principles of law. Indeed, it would be fatal to the interest of the accused persons. Had it (sub-s.(2)) been drafted excluding the word 'quality', such a problem could have been avoided. As under clause (c) of sub-s.(2), representative sample of the item seized is taken, analysis report of such item could have been accepted in evidence, as it would scientifically reveal the quality of the item.

The inventory to be prepared under sub-s (2) is also directed to contain "other particulars" of the item seized. It also appears to be dubious and may lead to complications. The term -"other particulars" ought to have been made specific.

Another aspect which requires attention is with regard to the words- "any Magistrate", appearing in sub-s.(2). Sub-s.(2) empowers the authorised officer to make the application specified therein to any Magistrate having jurisdiction over the area where the seized liquor, intoxicating drug or articles are stored. Here, as the word "any" is used, it could be construed to mean both Executive and Judicial Magistrates. But the inventory under sub-s. (2) of S.53A is required to be prepared only after the detection of the offence. In such circumstances, the inventory has to be forwarded to a Magistrate who has the jurisdiction to try the case or admit the accused to bail. Therefore, the words "any Magistrate" appearing in sub-s.(2) ought to have been used as "the Magistrate", so as to mean a Judicial Magistrate.

Moreover, under sub-s.(4) of S.53A of the Act, disposal of the seized liquor, intoxicating drug or article is made applicable in pending cases also, (with the permission of the Court or Magistrate). But as stated earlier, as the inventory (to be certified under cl. (a) of sub-s. (2)) is directed to contain quality of the item seized, it may lack admissibility in evidence owing to the reasons mentioned supra.

The foregoing aspects would reveal that the certification of the inventory prepared under sub-s.(2) of S.53 A of the Act is an unqualified and compulsive one cast upon the Court. The above said aspects may pave the way for suitable amendment in the provision.

_______________________________________________________________________

*See 2003 (2) KLT Kerala Statutes 1-2.

**Published in the Kerala Gazette Extraordinary No. 385 dated 6.3.03.