An Analysis of 2003 (2) KLT 97 (SC)

(United India Insurance Co. Ltd. v. Lehru) & 2001 (2) ACJ 843 (SC)

(New India Assurance Co. Ltd. v. Kamala)

(By C.R. Kesavan, Advocate, Tirur)

1. The insurer is the appellant in the first case and took up a contention before the Tribunal that the driving licence of the driver is a fake one and the Company is not liable. The Company could not prove this contention either before the Tribunal or before the High Court. Since the Insurance Company could not prove its contention before both the Courts, the Supreme Court rightly dismissed the appeal on merits with a direction to pay cost of Rs.20,000/-. By this Judgment even though the learned Judges wanted to settle the legal position regarding the liability of insurer in case of dispute regarding validity of driving licence, with utmost respect to the learned Judges it is submitted that all aspects on this point are not elaborately considered and the legal principle is not correctly expounded resulting ultimately that certain observations in the concluding portion of the Judgment in Para 20 still leave the matter unsettled.

2. There is no doubt that Chaps.8 and 11 of the 1939 and 1988 M.V. Act respectively are benevolent provisions of law to the helpless and hapless victims of motor vehicle accidents and these provisions should be interpreted as far as possible in favour of the victims. But however laudable may be the intention and whatever may be the purpose to be achieved by enacting these provisions, the unambiguous expressed provisions contained in the Act cannot be interpreted only to saddle the liability on the shoulders of the insurer. The Insurer is given only very limited defence both under the 1939 as well as 1988 M.V. Act. The defence available to the insurer under the 1939 Act is under S.96(2) which is corresponding to S.149(2) of the 1988 Act. The learned Judges have also observed in Para 10 of the Judgment in the first case that S. 149 of the M.V. Act is identical in all material particulars to S.96 of the 1939 Act. Breach of certain very few conditions in the Policy of Insurance as stated in S.96(2)(b) of 1939 Act corresponding to S.149(2)(a) of the 1988 Act is a good defence to the insurer to avoid liability and they are 6 in number under both the statutes.

3. A motor vehicle driven by a person who is not duly licensed or by any person who has been disqualified in holding or obtaining a driving licence or if driven during the period of disqualification comes under the category of breach of a specified condition of the Policy under the provisions of S.96(2)(b)(ii) of 1939 Act and which is corresponding to S.149(2)(a)(ii) of the 1988 Act. These provisions under the 2 Acts, as observed by the learned Judges, are identical in all material particulars. Hence the earlier decisions rendered by the Honourable Supreme Court on this point under 1939 Act are relevant for consideration.

4. The word "breach" in S.96(2)(b) of the 1939 Act (corresponding to S.149(2)(a) of the 1988 Act) is explained in detail by the Supreme Court in Scandia's case (1987 ACJ 411 SC) and also in the decision reported in Sohanlal Pasi's case (1996 ACJ 1044 SC - 3 Judges). These two decisions are discussed at length in the case reported in 2003 (2) KLT 97 SC. In order to constitute a breach of the Policy, the breach should be wilful by the insured. To put it otherwise, the insured should voluntarily and knowingly has to commit breach of the 6 specified conditions of the Policy of Insurance which are enumerated in S.96(2)(b) of 1939 Act. (S.149(2)(a) of 1988 Act.)

5. In case where the insured knowingly and deliberately allowed a person not duly licensed to drive a motor vehicle there is wilful breach of a specified condition of the Policy as stated in S.92(2)(b) and the insurer can avoid liability. Once the Insurance Company establishes that the insured is guilty of such infringement by allowing a person not duly licensed to drive the vehicle, the Insurance Company is completely exonerated from the liability. In such cases the Insurance Company satisfying the award first and then recovering the amount from the insured does not arise at all by invoking the recovery provisions contained in S.96(3) of 1939 Act which is reproduced as S.149(4) under the new Act. This principle is approved in Scandia Insurance Co. 's case 1987 ACJ 411 in Para 14, Page 417 to the following effect: "and it is only in case of a breach or violation of the promise on the part of the insured that the insurer (by mistake it is printed 'insured') can hide under the umbrella of the exclusion clause" and this principle is approved by the learned Judges at Para 12 of 2003 (2) KLT 97 (SC). When the insurer can hide under the umbrella of an exclusion clause of wilful violation of promise on the part of the insured, the umbrella cannot be snatched away from the hands of the insurer by asking the insurer to pay the amount awarded and then to recover the same from the insured who is liable in law. In short in such cases the Insurance Company is to be completely exonerated and the Question of recovery or reimbursement does not arise at all. Kasiram Yadav's case (1989 ACJ 1078 (SC)) and United India v. Gianchand (1997 ACJ 1065 (SC)) are authorities on this point. In Kasiram Yadav's case (1989 ACJ 1078 SC) the insured, with the knowledge, entrusted the tractor to a person who does not hold a driving licence and caused the accident and hence there was a wilful breach of the specified condition of Policy and the Insurance Company is exonerated from all liability. In Gianchand's case (1997 ACJ 1065 (SC)) while dealing with the defence available to the Insurance Company in the exclusion clause in the Policy, under S.96(2)(b)(ii) of 1939 Act corresponding to S.149(2)(a)(ii) of 1988 Act, the principle laid down is that the insured is not permitted to hand over the vehicle for the purpose of driving by an unlicensed person and in that case the Insurance Company is not liable. It can be seen from the judgment in Gianchand's case that a line of argument was advanced to cast the liability on the Insurance Company based on the decision in Scandia Insurance Co. & Sohanlal Pasi's case and it is pertinent to note that the learned Judges at Para 10 at Page 1068 observed "that we fail to appreciate how the aforesaid decision can be of any avail to the learned counsel for the respondents/claimants on the peculiar facts of the present case". As discussed in Para 8 of that judgment there are 2 distinct lines of case. "The first line of cases consists of fact situations wherein the insured are alleged to have committed breach of the condition of Insurance Policy which required them not to permit the vehicle to be driven by an unlicensed driver. Such a breach is held to be a valid defence for the Insurance Company to get exonerated from meeting the claims of third parties who suffer on account of vehicular accident which may injure them personally or which may deprive them of their bread-winner on account of such accident caused by the insured vehicle". "The other line of case deals with the insured/owners of offending motor vehicles that cause such accidents wherein the insured/ owners of the vehicles do not themselves commit breach of any such condition and hand over the vehicles for driving to licensed drivers who on their own and without the permission, expressed or implied, of the insured hand over vehicles or act in such a way that the vehicles get available to unlicensed drivers for being driven by the latter and which get involved in vehicular accidents by the driving of such unlicensed drivers. In such cases the Insurance Company cannot get the benefit of the exclusion clause and remain liable to meet the claims of third parties for accidental injuries, whether fatal or otherwise". The decisions in The New India Assurance Co. Ltd. v. Mandar Madhav Thambai's (1996 ACJ 253 (SC)) & Kasiram Yadav v. Oriental Insurance Co. Ltd. (1989 ACJ 1078) case, and Gianchand's case (1997 ACJ 1065 (SC)) represent the first category of cases. The decision in Scandia Insurance Co. Ltd. v. Kokilaban Chandraban (1987 ACJ 411 (SC)) and Solumlal Pasi v. Seslia Reddy (1996 ACJ 1044 (SC)) represent the second category of cases. In all cases which fall under the 1st category the Insurance Company is to be exonerated from liability. The Supreme Court has settled this legal position in the Judgment in 1996 ACJ 253 (SC), 1989 ACJ 1078 (SC) and 1997 ACJ 1065 (SC).

6. It is true that the burden is on the Insurance Company to prove that the driver was not duly licensed and he was allowed by the insured to drive the vehicle without duly licensed. If this aspect is proved the Insurance Company is absolved and if not the Company is liable is the principle laid down in the decision reported in 1999 (1) ACJ 171 (SC), Rugmani v. New India Assurance Co. Ltd. The above principle is reiterated in Para 20 of the Judgment in 2003 (2) KLT 97 SC at Page 109 on the following lines: "If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had notice that the licence was fake and still permitted that person to drive". So far so good. But, unfortunately, the further observations, "More importantly even in such cases the Insurance Company would remain liable to innocent third party but it may be able to recover from the insured" and "this is the law which has been laid down in Scandia 's. Sohanlal Pasi's and Kamala's case," could have been, it is most respectfully submitted, avoided as it appears that the observations again unsettle the legal position stated in 1996 ACJ 253 SC, 1989 ACJ 1078 SC and 1997 ACJ 1065 SC though in Kamala's case it is held so. It is humbly and respectfully submitted that this is not the law which has been laid down in Scandia & Sohanlal Pasi's case. The observations in Para 20 run counter to the reasoning contained in the ruiings of Scandia & Sohanlal Pasi's case and also the observations contained in the concluding 2 sentences in Para 17 of the Judgment in 2003 (2) KLT 97 (SC). With due respect to the learned Judges who decided the cases (2003 (2) KLT 97 (SC) and 2001 (2) ACJ 843 (SC) it is submitted that the various aspects are not discussed at length and considered in its proper perspective and the principles laid down therein are, it is humbly submitted, erroneous due to the following reasons:

7. In the circumstances as discussed in 1989 ACJ 1078 - Kasiram Yadav's case and 1977 ACJ 1065 SC - Gianchand's case, if the insurer is completely exonerated under the provisions of 1939 M.V. Act why not the insurer be exonerated under similar circumstances as per the provisions of 1988 Act also is not seen discussed and considered in the above two captioned cases especially when S.96 of 1939 Act and S.149 of 1988 Act are identical in all material particulars as observed by the learned Judges in Para 10 of the judgment in the first captioned case and the principle laid down in Kasiram Yadav's case is approved as seen from Para 13 of the Judgment in 2003 (2) KLT SC 97. Hence the principle laid down that the Insurance Company cannot avoid liability even if there is wilful breach of the 6 specified conditions of the Policy as enumerated in S.149(2)(a) and the remedy of the Insurance Company is only to recover the amount under S. 149(4) is, it is humbly submitted, not correct.

8. The learned Judges in the first captioned case after observing that 'a plain reading of S.149 of the M.V. Act would show that the Insurance Company would continue to be liable to third parties' quoted the entire S.149 at Page 106 and 107 of the Judgment, S.149 of 1988 Act and S.96 of the old Act are similar excepting some minor insignificant changes not affecting the nature of liability of the insurer. On a reading of S.149( 1) of 1988 Act (96 (1) of 1939 Act) it can be seen that the nature of liability of the insurer is absolute and the liability is attracted the moment a Certificate of Insurance is issued irrespective of the question whether the insurer is entitled to cancel the Policy or cancelled the Policy. But this absolute nature of liability is subject to all the provisions of this Section (not under sub-s.(l) of S.149 alone) which means all the provisions contained in all the following sub-sections of S.149. On a reading of sub-s.(2) of S.149 (S.96(2) of 1939 Act) it can be seen that this sub-section acts as an exception to sub-s.149(1),

9. Even in cases where the insurer has got the statutory defence of wilful breach of six specified condition of the Policy as enumerated in S.149(2)(a) of the 1988 Act with regard to the accident after the enactment of 1988 Act, certain Honourable High Courts including the Honourable High Court of Kerala and our Honourable Supreme Court in the captioned cases are of the view that the insurer cannot avoid liability and has to pay the amount first and then to recover the amount from the insured as per the provisions contained in S.149(4) of 1988 Act. It may be noted that on a careful, patient and analytical reading of the entire sub-section in comparison with the old provisions (S.96(3)). it can be seen that S. 149(4) is not at all a new provision first time enacted in the 1988 Act. It was already there when the 1939 Act was enacted in the form of S.96(3) and the Honourable Supreme Court, while dealing with similar questions under the 1939 Act did not direct the insurer to pay first and then to recover the amount as per the provisions under S.96(3) of 1939 Act since S.96(3) corresponding to S.149(4) was not at all applicable in cases of breach of specified six conditions of the Policy as enumerated in S.96(2)(b) (S.149(2)(a)). But it applies to breach of other conditions of the Policy other than the six specified conditions. The meaning of sub-s.149(4) is that when a Certificate of Insurance is superseded by a Policy of Insurance, if the insurer imposes any conditions in the Policy of Insurance other than the 6 specified conditions as enumerated in S.149(2) (S.96(2)) in order to restrict the Insurance, those restrictive conditions in the Policy are ineffective and cannot come to the rescue of the insurer to avoid liability as regards third parties and the remedy of the insurer in such cases is to pay first the amount as awarded to the third party and then to proceed against the insured to recover the amount from the insured. Sub-s.149(4) has nothing to do with the breach of any specified 6 conditions of the Policy of Insurance as enumerated in S.149(2). In short, when there is breach of a Policy conditions other than the six specified conditions of the Policy, the insurer has to pay first the amount to 3rd party and then to recover from the Insured, and S.149(4) cannot be invoked in the case of breach of specified six conditions of the Policy as enumerated in S.149(2) (S.96(2)(b)).

10. Under the 1939 Act the insurer can avoid liability on 3 grounds, (i.e., Ss.96(2)(a), (b) and (c)) whereas under S. 149(2) of 1988 Act the insurer can avoid liability on 2 grounds (i.e., Ss.149(2)(a) and (b)). The first ground of defence to avoid liability to the insurer under the 1939 Act under S.96(2)(a) is cancellation of Policy under certain circumstances and this ground is taken away when 1988 Act is enacted and the remaining 2 grounds under the old Act as Cls.(b) and (c) are retained in the new Act as Cls.(a) and (b). Among the 2 remaining grounds, the first ground is a breach of six specified conditions of policy (Ss.96(2)(b) and 149(2)(a)) and the other ground is nothing to do with breach of any condition of Policy whatsoever but a distinct ground under a different situation when a policy is obtained by fraud. (Ss.96(2)(c) and 149(2)(b)). The alphabetical changes as 2(a) and 2(b) in S.149 instead of 2(b) and 2(c) as under S.96 are necessitated because there were 3 grounds under the old Act as a. b and c and whereas only 2 grounds under the new Act as a and b as pointed out above. This must always be remembered to understand the scope of the remaining sub-sections.

11. The Legislature while reproducing S.96(3) as S.49(4) copied down the very same provisions as it is. In both Ss.96(3) and 149(4) reference to Cl.(b) of sub-s.2 can be seen. The Cl.(b) of sub-s.2 referred in S.96(3) pertains to wilful breach of the six specified condition of the Policy of Insurance as enumerated in S.96(2) whereas sthe reference in Cl.(b) of sub-s.(2) in S.149(4) does not pertain to any breach of any conditions whatsoever in the Policy of Insurance. But it is a totally distinct ground when the insurer can avoid liability when the Policy is obtained by fraud. The purpose of enactment of S.96(3) and S.149(4) is that the insurer cannot take shelter under breach of any of the conditions of the Policy except the six specified conditions enumerated under S.96(2)(b) which is corresponding to S.149(2)(a). But unfortunately the Legislature while simply copying down the very same provisions of S.96(3) as S.149(4) omitted to correct the alphabet (b) as (a) while making a reference of the clause forgetting the fact that the first ground of defence under the old Act as 96(2)(a) is deleted under the new Act and S.149(2)(b) does not pertain to breach of any of the Policy conditions whatsoever.

12. Fraud vitiates every thing. Any contract obtained by fraud is void especially a contract of insurance which is based on the principle of ubberrimae fide (utmost good faith). This need not find recognition or expression in the M.V. Act. Even in the absence of any express provision to this effect the insurer can avoid liability on the ground of fraud under the General Law of Contract. Mentioning that the Insurer can avoid liability on the ground of fraud in S.96(2)(c) corresponding to S.149(2)(b) is superfluous. Even in the absence of S.149(2)(b) the insurer can avoid liability on the ground of fraud and there need not be an enabling provision in the M.V. Act to avoid liability for the insurer. Hence if S. 149(4) should carry the proper meaning as S.96(3), the reference in Cl.(b) of sub-s.(2) in S.149(4) is necessarily to be read as CI.(a) of sub-s.(2) and then only it will be in consonance with Ss.l49(2) and 149(7) of the 1988 Act and if not it will lead to strange results and it will be a manifest contradiction of the provisions contained in Ss.149(2) and 149(7) because the Legislature never intended to take away the statutory defence given to the insurer under S. 149(2) by enacting a sub-section in the form of 149(4). "To be literal or to be blinkered by some rigid cannon or restriction may be to miss the life of law itself" as opined by our Honourable Supreme Court in 1977(1)SCC 155. "In order to know what is the provision contained in a particular provision of law one has to know what it has been and what it tends to become. We are interested with law as it is. If this leads to unjust results it is a matter for Parliament and not for us" is not the stand expected from a Judge while giving a correct legal effect to a particular portion of a statute. Hence the reference in Cl.(b) of sub-s.(2) of S.149(4) is necessarily to be read as CI.(a).

13. It is seen from the Judgment in the above two captioned cases that the Honourable Judges are of the view that a plain reading of S.149 as a whole would show that the Insurance Company would continue to be liable to third parties in spite of breach of the 6 specified conditions of the Policy as enumerated under S. 149(2) and the remedy is to recover the amount from the insured. In both the judgments vide Paras.17 and 20 respectively much importance to S. 149(5) is seen given especially in Kamala's case to further strengthen the above reasoning. Chap.8 of the M.V. Act, 1939 regarding compulsory Insurance came into force only from 1.7.1946 though it is not applied then through out the country and it is applied to the State of Kerala only from 16.4.1973. The concept of limited liability of insurer contained under the various provisions of 1939 Act is deleted while enacting 1988 Act. On a plain reading of Ss. 149(4) and (5) one can understand that S. 149(4) deals with the question of liability itself of the insurer and not the quantum of liability whereas S. 149(5) deals with the quantum of liability (Liability otherwise admitted). Insurer is not supposed to issue a Policy without satisfying the requirements contained in Chaps.8 and 11 of the M.V. Act 1939 and 1988 respectively. The meaning of S. 149(5) is that suppose the insurer issues a Policy without satisfying the requirements of the Act for a lesser extent of liability, the insurer has to pay the amount as per the statutory requirement and the excess amount so paid can be recovered from the insured. After the enforcement of the provisions of Compulsory Insurance and especially after the deletion of the concept of limited liability of the insurer under the 1988 Act. S. 149(5") (S.96C4)) is now a dead sub-section and absolutely there is no importance and the Legislature ought to have scrapped S. 149(5) and ought not to have retained since it is otiose and no insurer can now enforce legally the provisions of S. 149(5). It is humbly submitted that it is unfortunate to note that this significant aspect was lost sight of by the learned Honourable Judges who decided the above two cases while giving undue importance to this sub-section.

14. It is seen from Para 17 of the Judgment in 2003 (2) KLT 97 that a submission was made on the side of the appellant insurer that S. 149(7) has not been noticed in Kamala's case. But the Honourable Judges are of the view that there is no substance in the submission. But as matter of fact, it is respectfully submitted that S. 149(7) was not taken into consideration in its proper perspective. S. 149(7) again reiterates that the insurer is entitled to avoid liability in the manner as provided for in sub-s.2 of S.149 which deals with breach of 6 specified conditions of the Policy as enumerated in S. 149(2) and thereby S.149(7) again safeguards the statutory defence of the insurer to avoid liability completely. Though it is true that S.149(7) is not giving any additional right to the Insurance Companies but it emphasizes that the Insurance Company can avoid liability on the limited grounds set out in sub-s.2 as observed by the learned Judges in the concluding portion of Para 17 of the Judgment in 2003 (2) KLT 97. On the face of the above reasoning the observations of the learned Judges that even on the limited grounds of defence set out in sub-s.(2) of S. 149 of 1988 Act the insurer cannot avoid liability, it is most respectfully submitted, runs counter to the above reasoning and is against the expressed provisions of the Act. It also appears that the case decided by the learned 3 Judges of the Honourable Supreme Court in New India Assurance Co. Ltd. v. Asharani in 2003 (1) KLT 165 (SC) reiterating the principle that the statutory defences available to the insurer under S. 149(2) cannot be obliterated (Vide Para 30 of the Judgment) is not brought to the attention of the learned 2 Judges who decided the case reported in 2003 (2) KLT 97. Hence one can hope that sooner our Honourable Supreme Court will settle the position by upholding the principle that the insurer can always take shelter under the umbrella of statutory defence as enumerated in S. 149(2) by reiterating the principles laid down in Kasiram Yadav's case (1989 ACJ 1078 SC) and Gianchand's case (1997 ACJ 1065 SC) and the umbrella cannot be snatched away from the hands of the insurer till the Act is amended casting a blanket liability on the insurer irrespective of any question once a Certificate of Insurance is issued.

Should "Kith and Kin" Be Curbed?

(By Pauly Mathew Muricken, Advocate, High Court of Kerala, Ernakulam)

The Bar Council of India's novel venture to breathe fresh air into the controversial 'Theory of Relativity' by publishing the State-wise list of HC Judges whose relatives are practising in the same courts, has invited keen and live discussions and deliberations among the legal and juristic circles. While the aim of BCI appears to be laudable, the purity of its action when judged vis-a-vis the stage at which it is pressed into service have aroused sentiments of doubt and suspicion in the minds of independently thinking people and the legal intelligentia. The object of the BCI seems to be to strengthen the public faith in the judicial process.

According to the list published by BCI, Delhi High Court tops with 16 Judges with lawyer relatives. It is followed by Madras with 8 Judges having lawyer relatives practising there. In Kerala, Patna and Rajasthan High Courts, there are 7 Judges each with lawyer relatives practising in the concerned High Court. In each of these 3 States, number of practising lawyer relatives are 10. Can the Judges or the lawyer relatives be blamed for this or is the Bar Council responsible for the emergence of such a situation. The larger legal issue involved herein boils down to the question 'Is there any breach of etiquette or impropriety in a lawyer relative practising in the same Court'.

In India, every citizen has the constitutional right under Art.19(1)(g) to choose his profession or calling subject only to the limits as may be imposed by the State in the interests of the public welfare and the other grounds mentioned in cl.(6) of Art.19 of the Constitution of India. Constitution guarantees this right to every citizen, as a member of a civilised society. It only recognises reasonable restrictions on this right, and a restriction is reasonable only if it has a utilitarian design to secure the greatest good of the greatest number.

The law relating to legal practitioners in India is governed by the Advocates Act, 1961, a central legislation. The Act authorises the Bar Council of India to make rules prescribing the standards of professional conduct and etiquette to be observed by Advocates. The Act inter-alia prescribes the qualifications as well as disqualifications for admission as Advocates. The qualifications for enrolment is dealt with under S. 24 and the disqualification for enrolment is specified in S.24A of the Act. The only disqualification prescribed is that a person shall not be enrolled as an Advocate on a State roll if he is convicted of an offence involving moral turpitude or convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955. The theory ofrelativity does not find a place in S.28A of the Advocates Act, 1961 for the purpose of admission as an Advocate. Every person admitted as an Advocate on a State roll has the right to practice throughout the territories to which the Act applies in all Courts including the Supreme Court, before Tribunals and other legal forums, unless their appearance is expressly forbidden by a separate legislation. This right is recognised in S. 30 of the Act. The same Act empowers the High Court under S. 34(1) to make rules laying down the conditions subject to which an Advocate shall be permitted to practice in that Court and the Courts subordinate thereto. In the exercise of the above power, the High Court of Kerala has framed rules in 1969 regarding conditions of practice of Advocates in the High Court and in the Courts subordinate thereto. These rules have been published in Kerala Gazette No.37 dated 23.9.1969. Nowhere in the rules restriction has been placed on lawyer relatives practising in the same court or in any Court subordinate thereto.

The norms regulating the practice of lawyer relatives is contained in Chapter II, Part VI, R.6 of the BCI Rules. It reads "An advocate shall not enter appearance, act, plead or practice in any way before a Court, tribunal or authority mentioned in S. 30 of the Advocates Act, if the Court or any member thereof is related to an Advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law".

The above rule is self-speaking and on a consideration of the rule, it can be seen that what the rule seeks to achieve is to prevent kith and kin, from appearing in the Court or forum presided over by his/her judge relative. The rule does not prevent in any way a lawyer relative from appearing and pleading in a different bench of the same Court or forum or in the Courts or forums subordinate thereto. That being so, it is unrealistic to curb the practice of Lawyer relatives in the other Benches of the Court or forum or in the Courts or forums subordinate thereto.

The propriety of a Lawyer relative appealing before a Judge relative was always a debatable issue and the issue has arisen for consideration on occasions prior to the coming into force of the BCI Rules. The issue was directly a lis to be decided by the Full Bench of the High Court of Travancore In Re-An Advocate (1120 (1) TLT, Vol. XIX Page 1). The issue arose out of a reference made by Madhavan Pillay, J., (as he then was) involving serious questions of procedure on a question as to whether it was proper for Mr. T.S. Krishnamurthy Iyer, Advocate, to accept Vakkalath for pleading in a matter which came up before his father, Mr. Justice Sankarasubba Iyer, having due regard to the rules and practice contained in Rr.453 & 489 of the Civil Courts' Guide. After due consideration of the entire issue, the Full Bench (Per T.M. Krishnasvvami Aiyar, C.J., G.D. Nokes & K.C. Abraham, JJ.) unanimously held that there is no definite rule of law or procedure under which an Advocate is prohibited from appearing before a Judge of the High Court, who happens to be his relation. But it has been the invariable practice in the High Court never to post any matter before a Judge or a Bench including a Judge, who was closely related to an Advocate appearing for one of the parties. The Full Bench further held that R. 453 of the Civil Courts Guide was intended only for the guidance of subordinate Courts. The issue which remained settled vide the above decision has now become unsettled in view of the recent attempt made by the Bar Council of India.

In England, a barrister is not permitted to practise habitually in a County Court or the Crown Court where his father or near relative sits as a Judge but there is no objection to his practising in a Court where his father is one of several Judges and it has never been considered improper for a Barrister to appear before his father in the High Court, Court of Appeal or House of Laws. (Halsbury's Law of England, 4th Ed., para.1145). It is recognized as a rule of the profession. Several well acclaimed Judges in England did have opportunity to practice in the higher courts before their father who happened to be the Judges of the said Court. The list is rather exhaustive and it includes Lords Russel of Killowen, Thankerton, Romer, Finlay, Charles, Macnaghlen, Lawrence, Bucknill and Henn Collins. The same is the practice in the United States as well. The above practice was being followed on the reasoning that if a lawyer relative appears before a Court where his father is one of several Judges, it is impossible to know beforehand which Judge will in fact try a case.

The legitimacy of law depends upon the consent of the. parties in dispute. No doubt, Courts must be above any form of control or influence. The traditional conceptions of Judge and Court is well expressed by an illustrious American Lawyer Henry Lummis: 'The moment, a decision is controlled or affected by any form of external influence or pressure, that moment the Judge ceases to exist'. Therefore, as pointed out by the Apex Court in Satendra Narain Singh v. Ram Nath Singh, AIR 1984 SC 1755 at P. 1757, it is better and appropriate that the Advocate son withdraws from the case than the Judge father.

Legal Profession, more or less, is inherited by succession. Judges holding the judicial mantle are lawyer-turned Judges. A Judge may in fact desire to have his son or daughter or in laws to follow the noble legal profession or the son or the daughter or the in-laws may develop an interest in themselves to follow the same profession, as it is quite natural in most of the cases. Can the Judges or lawyer relatives be blamed for it. There is yet another face for this delicate issue. Lawyer relatives might have entered the profession or longed to enter even before their close ones are elevated as Judges. Is it not paradoxical to curb their practice for no fault of theirs, or to punish the Judges in the form of transfer for the reason that their relatives are practising in the same Court, not before their relative Judges, but before other benches of Judges who do not have their lawyer relatives practising and who even dislike lawyer relatives practising in the same Court at all. What is the comparative gain in restricting their practice in the subordinate courts and forums when the subordinate Courts and Tribunals come under the direct administrative control and supervision of the High Court. If the likelihood of bias is the reason for the apprehension, are there not remedies available to the party concerned who feels that bias have kept in, before the same Court and before the higher Court. The BCI instead of attempting to trace out the list of lawyer relatives and related Judges must leave the Theory of Relativity to the fair conscience of the lawyer relatives or else must adopt a pragmatic approach which does not involve in chasing the lawyer relatives of the related Judges, but regulating the practice of lawyer relatives in such a matter that it does not shatter the confidence of the people in the impartiality of Judges.

College Campus Politics - Nocent Or Innocent?

(By Mr. Justice V.R. Krishna Iyer)

The academic discipline which describes and analyses the operations of the Government, the State and other political organisations and any other factors which influence their behaviour, such as social and economic, in short, a study as to how power is exercised, and by whom (and for whose benefit), through the administration of public power, of people's affairs may perhaps be described as politics, a great concern of every intelligent member of society. Albert Einstein has observed: "It is the duty of every citizen according to his best capacity to give validity to his conviction in political affairs". The ignorance of politics among the masses of a country paves the way for the rise of tyranny and the fall of democracy. The right to govern belongs to every citizen and so political science can never be alienated from the concern of the community which ultimately secures for the citizenry justice, liberty, equality, dignity of the individual and the integrity of the Nation. It is a grave default, therefore, to deny to the population at any level the right and, indeed, the duty to acquire a basic knowledge of local, national and global political forces. It is a gravemen of injustice and goofy understanding of public affairs to command that political science shall be anathema in a college campus since, in the last analysis, such allergy amounts to an advocacy of political illiteracy, social insensitivity and cultural Philistinism. The grammar of politics, in an enlightened sense, is the birthright of every member of our polity which is sovereign, socialist, secular, democratic, republic as India is and shall be. The great guardian of the rights of the people in a Republic is an enlightened youth educated in the various dimensions and instruments of political science such as the legislature and the judicature. Indeed, the right to vote vested in everyone at age eighteen becomes a meaningful operation if only the exercise of franchise is an expression of political wisdom. In the finest sense of the word, politics must be obligatorily a subject of learning inside every college campus which owes allegiance to the Constitution and its Preambular Pledge. 'We, the people of India' - the first five words of our Constitution - have made a revolutionary resolution to defend the politics of the Constitution. Winston Churchill once defined and defended the ballot process which every Judge and administrator must constantly remember: "A little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or discussion can possibly diminish the overwhelming importance of the point". Be politically educated at age eighteen or be damned as dumb-driven cattle in a dying democracy.

There is a judicial impression among the robed brethren in India that politics is a vice like alcoholism or drug addiction and therefore be banned or ostracized as a mischief or menace, pathologically spreading as a dangerous syndrome in our institutions of higher learning. A Division Bench of the Kerala High Court, gave a ruling which through the media was popularly interpreted as a toxic tendency of student politics in college campuses which has to be curbed or tabooed for salvation of education. Professor J. A.G. Griffith in his powerful book. The Politics of the Judiciary has argued: 'Judges are human with human prejudice.... some are more human than others' and considered right wing opinion as an occupational bias of the British judicial profession. Surely, the Indian Judiciary of which I had been a member for some years, is made of more liberal staff, more democratic ethos, more progressive eidos.

The Kerala Judges in the Sojan Francis case held against the nineteen year old undergraduate, a member of the SFI, on the ground of inadequate number of days of attendance necessary as a qualification for taking the examination. This would have disposed off the matter. But the court, on the score of political importance, launched on a long discussion about the constitutionality of prohibiting political activity altogether within the college campuses. The college concerned, St. Thomas College, Palai, has certain guidelines regarding general discipline. One of them with which the Court was concerned directly states that political activism is strictly banned in the campus and that 'students are forbidden to organise or attend meetings other than the official ones'. Strikes are prohibited within the campus, and the challenge of the student was that such forbiddance was violative of Art.19(i)(a) & (c) of the Constitution. Since this question is of 'considerable general importance', the Court felt the urgency of the issue as one of adjudicatory moment.

The prohibitive clause which has been upheld by the Court, if scrutinised with a little care reveals that organisation of or attendance at meetings which are official ones are permitted (even if they be of the character of political activism). So much so there is a discriminatory dimension underlying the ban which, in fairness, means that meetings which finds favour with the management fall within the permissible category. Communal managements of educational institutions are the bane of the Kerala Educational establishment. It is full of politics, survives by politics, propagates political perspectives and controls the State educational establishment through its political clout. Therefore, officially permitted political meetings, often dangerous to the progressive development of the State and the Nation, enjoy open sesame or free access. Now that the controversial clause has received judicial sanction the ruling allows the Principal to spread within the campus his brand of politics and make every other political study through meetings and campaigns bete noire. Reactionary politics of private managements thus finds a haven inside colleges and all avant-grade political thought and action is frowned upon. This is arbitrary and unconstitutional. Indeed there is no rationale or logical basis of classification as the foundation for the forbiddance. There is no rational differentia indicated in the clause which will make a meeting official just, fair and reasonable. It is vague and can be capricious, depending on the management's will to give free rein to the partisan politics of a management. If clear guidelines comporting with the values of our Constitution vis a vis, political education and action, are transparently stated as governing the management's power to prohibit, it is a different matter. Absent such directive, liberal discussion becomes suppressed or hidebound and the cause of free thought fails as violative of Arts.19, 20 and 21 - Art.14 because the classification is not based on a rational differentia related to a constitutionally acceptable objective. The ipse dixit of the Principal calling it official does not make the meeting lose its vice of inequality before the law. Art.19 is violated because freedom of expression involves freedom of action, information and communication of ideas to deny which the college authorities can stamp a kind of activity as not officially acceptable. It is violative of Art.21 because the 'right to life' includes the right to moral, social and cultural development which, in turn, involves a free opportunity for uninhibited political education and it is contradicted by the clause which vests a ukase in the management. College Education is improved through college debates and free speech. To control this collegiate freedom is to permit manufacture of young minds conditioned by the management politics. To swear by what is officially ordered as sound political activity and to swear at every other political process to which the Principal is allergic is to create conditioned minds which is the negation of political pluralism, democratic diversity and development autonomy. Our Republic will suffer from robotism if the creative vitality of the young generation at college is ordered about by the official church, communal management and mindless establishments which run schools of higher education. This is a new menace which benumbs the intellectual potential of the Nation. Apparently, even the judiciary is not sufficiently alterted about this omnious portent. Citing Supreme Court decisions about the political calamity of student wings of Parties in campuses misses the great tragedy of pertrifying human originality. Every young mind passing through Colleges must be trained to be sensitive to the constitutional pledge of justice, social, economic and political, liberty of thought and expression and the dignity of the individual in relation to the Nation's integrity. Platitudes and claptraps about student politics and Party allurements misses the oxygen of socialism, secularism and democracy which are nothing but politics but are the quintessences of our constitutional culture.

The Principal is the head of the institution but functions under the management and its political philosophy. It is right to prevent hostile groups of students battling within the campus or creating babel or bedlam making the process of learning impossible. Peace, health, morality and like vital values constitute discipline and must be preserved by the Principal. College premises cannot become scenes of sound and fury obstructing classes, but these important control measures of discipline do not justify taboo of political discussions, political magazines, political association and political seminars inside the premises save with the permission of the Principal as if to avoid law and order problems.

It is unfortunate to compare Government servants and their rules of conduct with student's code of conduct. The difference is too obvious to need explanation. Students study and learning has several processes. Teachers, Government servants and other employees in public institutions certainly can have their political views but cannot resort to conduct or membership which will distract from or interfere with the neutrality needed for functional efficiency. It is confusion to mix up this category with the student community; of course, disturbing demonstration, obstructive strike, ragging and other operations which make classes difficult to be conducted or people's study menaced by turbulence - these can always be prevented, because they have a nexus to the goals of a student in college to equip himself with knowledge.

To banish politics for a student of eighteen years of age is to deny him the fundamental opportunity of becoming a good citizen to vote. It is anti-democratic to refuse a student a campus opportunity to talk politics, to read politics, to discuss politics in an association, to argue politics with his fellow students, subject, of course, to a peaceful atmosphere, disciplined behaviour and obedience to public health and morality. That orderly political activity by a student community governed by democratic decency and academic dignity will cause chaos in the campus is a fashionable fallacy and dubious diagnosis and I humbly believe will never be a judicial illusion. Educational pharmacopoeia, I agree, must cure the anarchic pathology of party politicking, even if officially backed by Management-disguised policy, which often is subversive of radical constitutional activism. Blanket ban on campus political activity, save official ones, has a fascist flavour.

Politics is a social science and its study through organised movements, if peacefully pursued, even if a wee-bit restively and passionately, deserves no veto. Heeding the protests against a blanket ban, may be, the Court has agreed to a review and, as a democratic gesture, invited everyone interested to present his/her submission. I pay a tribute to the Judges for this judicious measure. I remember that while on the Supreme Court, presiding over a Bench, I was hearing a case involving the parameters of death sentence I orally announced that any member of the bar interested in the cause would be heard, since the question was of life and death moment. A review is a remedy for the Judges themselves to correct an error if a flaw has vitiated the judgment already delivered. No one, not even the wisest Judge, is above a commission or omission which needs correction. Way back in 1980 in one judgment the Court reviewed and reserved itself. There I wrote:

Horace Wrote "But if Homer, who is good, nods for a moment, I think it a shame ". We, in the Supreme Court, do 'nod' despite great care to be correct, and once a clear error in our judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this Court from the anxiety to be ultimately right, not consistently wrong. The present petition for review is one such and we have listened, at unusual length, to counsel's oral submissions having felt that an error in the judgment under review, likely to injure and unsettle, needed to be mended. (AIR 1980 SC1187)

I am convinced; and by this I once again pay a tribute to the Judges concerned, that the case will be reheard with a conviction that infallibility is not a judicial inviolability.

Re-Marriage in Sharia is Cruel

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

The word re-marriage gives the impression that a divorced husband and wife marry again. Every re-marriage preceeds a divorce. The personal laws like the Hindu Marriage Act, 1955,Parsi Marriage and Divorce Act, 1936, do not have any provision for re-marriage. Divorce is a permanent disunion. There is provision for re-marriage in the Indian Divorce Act, 1869. In such a case, the prior marriage presumed to be dissolved by death. This is not the case with Muslim personal law-sharia. S.336(5) of the Principles of Mohammedan Law, 18th edition, speaks about remarriage of divorced couple.

(i) Where the husband has repudiated his wife by three pronouncements (S.311(2) and S.311(3)(i)), it is not lawful for him to marry her again until she has married another man, and the latter has divorced her or died after actual consumation of the marriage. The presumption of marriage arising from an acknowledgment of legitimacy (S.267) does not apply to a re-marriage between divorced persons unless it is established that the bar to re-marriage created by the divorce was removed by proving an intermediate marriage and a subsequent divorce after actual consumation of (f) ill (a). Even if a remarriage between the divorced persons is proved, the marriage is not valid unless it is established that the bar to re-marriage was removed the mere fact that the parties have re-married does not raise any presumption as to the fulfillment of the divorce conditions (g) ill (b). A marriage without fulfillment of the above conditions is irregular, not void (Baillie 151).

Dr. TahirMohamood's Muslim Law of lndia, 1980, edition contains similar provisions. The cruel side of this provision is that the divorced wife has to marry another person, consummate and then gets divorced for re-marriage with her first husband. The divorce may be with her fault or without her fault. The woman is always the victim. The husband remains serene. The terror and tension is with the woman and her family.

I have a case in hand. A socially and educationally well placed couple, the wife is an Advocate and the husband is a high placed Government employee. Both are in their twenties and have a child. For lack of temperament and small things, their life estranged and ended in divorce. Litigation started to establish their material rights. It is a fact in every broken family, the child is the victim. In the Court background, the couple decides to re-marry for the welfare of the child. Then comes the pre-conditions of re-marriage. The couple as well as their dear and near ones shocked. In a previous case a second marriage took place for a re-marriage, but the second husband refused to divorce. So the remarriage remained a dream. A versatile and lofty idea of re-marriage in Sharia is torpedoed from within. So in my view re-marriage in Sharia is cruel one and in-human.

Unwanted Section of the Code

(By S.A. Karim, Advocate, Vanchiyur, Thiruvanandapuram)

The Criminal Procedure Code 1973, hereinafter refers the Code, lays down the procedure for the trial of cases in the Sessions Courts and the Magistrate Courts. In summons as well as warrant cases, after the prosecution evidence is over the accused is questioned under S.313 of the Code. It intends to give opportunity to the accused to hear his version on the evidence. At the close of the 313 statement, the Court asks the accused whether there is any defence evidence. If the answer is yes, the court straight away posts the case for such evidence. At the close of the defence evidence, the Court hears the Public Prosecutor and the defence counsel and posts the case for judgment. It may end in acquittal or conviction. This is the time tested procedure in sessions as well as other cases. There are Courts that strictly follow the procedure laid down in the Code. In this back ground, S. 232 of the Code is relevant. It reads-

"If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal."

Under this section the Public Prosecutor and the defence counsel argue the case on the evidence adduced by the prosecution. From the evidence, the Judge considers that the prosecution has not proved the case, the Judge acquits the accused and the matter ends there as regards the accused. If the Judge considers there is evidence, the accused is permitted to adduce defence evidence under S.233 and then the matter goes for argument and judgment under Ss.234 and 235 respectively of the Code. As stated earlier, it may end in acquittal or conviction. Fate of the criminal case rests with the prosecution evidence. It is the settled position. If there is prosecution evidence, no amount of defence evidence improves the case. Even without following the procedure under S.232, fair and final judgment is possible if the defence evidence, if any, is taken immediately after 313 statement, argued and decided the case. In this context S.232 of the Code is unwanted one.