RELUCTANT LEGISLATIVE ACTIVISM

(By Werner Menski, S.O.A.S., London)

Readers of the KLT with an interest in family law and gender justice will probably be aware that on 24^lh September 2001, the Indian Parliament passed two small but very significant Acts, first the Code of Criminal Procedure (Amendment) Act, 2001 (Act No. 50 of 2001) and then the Indian Divorce (Amendment) Act. 2001 (Act No. 51 of 2001). These are two short amending Acts that constitute a pathbreaking legal development in more than one sense. Apart from changing certain laws in aradical, if long overdue fashion, they suggest that apart from judicial activism, about which we have heard a lot and read even more, there is perhaps also such a phenomenon as legislative activism. This seems to be a reluctant form of activism, whose motivations and impact need to be further researched.

None of the two new Acts gives away any clues as to why these amendments were made, and what they are designed to achieve. But their impact is potentially extremely important, not only for Christian spouses seeking divorce, but for all Indians, and for the emerging postmodern Indian Legal System as a whole1 There is no section on aims and objectives, or a kind of preamble, as we find in the infamous Dowry Prohibition Act of 1961. In the Statement of Objects and Reasons for the Act of 1961, attention was drawn to a persistent demand inside and outside Parliament to eradicate the evil of dowry. We know, of course, that this eradication Never happened in social or legal reality and that the problems are worse today than thay were in the early 1960s2

In the two Acts of 2001, no explanation of legislative intent is offered. There is deafening silence about the long labours of Keralite lawyers, in particular, to have the Christian divorce laws amended. Is this purposeful silence, pointing to reluctant legislative activism, or was Parliament in a hurry? Is it legislation by stealth? Or do we maybe need to view this as legislative activity imposed on Parliament by outside forces? Some form of legal activism can be diagnosed here, but perhaps not activism by Parliament itself, rather activist legislative provisions passed by Parliament in a spirit of reluctant submission to public opinion or lobby pressures3 The same can evidently be said about the recent amendments to the Indian Citizenship Act of 1955 in the Citizenship (Amendment) Bill, 2003 which was moved in the Lok Sabha on 22^nd December 2003 and offers reluctant toleration of dual citizenship status for a large number of NRIs. Here, too, a Parliament in Christmas mood (or perhaps, put in more secular terms, parliamentarians in holiday spirit) can be seen to pass important legislation that does not so much reflect the intentions of Parliament as the desire of some lobby to achieve certain legal outcomes through properly constituted Parliamentary sanction.

If that is so, we need to ask some further questions about the implications of such kind of law making for practical implementation of such laws. We know that India has many wonderful laws, but often they do not work in practice because somewhere along the line, Parliamentary intent was sabotaged or undercut. As a result, the real 'living law' today is often very different from what the earlier statute, examined on its own, would appear to suggest. A case in point would be the legal position concerning the abolition of polygamy by the Hindu Marriage Act of 1955. Almost 50 years down the line, we are forced to realise that Indian courts have been administering and regulating Hindu polygamy and its consequences, rather than punishing Hindu polygamists as criminals for having several wives4 For, polygamy continues to exist among Hindus in India as though the law abolishing Hindu polygamy did not exist, making a mockery of the vastly popular argument that Muslim men are allowed up to four wives, while Hindu men are forced by law to be monogamous. In reality, it seems, and not just in Kerala, almost all Indian men are getting away with making polygamous arrangements, but do we want to discuss the reasons for this openly? Lawyers are here drawn into communalist politics, and legal minds become clouded with prejudice, as was so impressively demonstrated in the case oiSarla Mudgal5

Subjects like the abolition of polygamy, and much else, are found in Acts that were put on the statute book in the heady days of postcolonial Indian legislative activism, and in a spirit of positi vist euphoria.6 The implications of such reformist spiritualism need to be assessed in much more detail by future Indian socio-legal research that takes into account how the law has really developed in Indian society of the early 21^st Century7

The earlier eagerness of reformative euphoria has long vanished in Indian law making, notably in the field of family law, where since the late 1970s, very little legislative activity has been observed. Parliamentary business generally is now much more introspective and less activist than it would have been in the innovative phases of the 1950s. Still, significant legislation is passed from time to time, and it becomes all the more important to analyse this activity when it finally occurs. Given that Parliament was perhaps reluctantly pushed towards passing such Acts, or was simply not informed fully enough about the wider consequences of such law-making, why is it that such laws are made in the first place, and how are they going to be successfully implemented?

Not surprisingly, the first of the two amending Acts of 2001 is in particular danger of being overlooked, not the least because men and their legal advisors will have no interest at all in promoting knowledge of the new law. I found to my surprise, visiting the Family Court of a major metropolitan city in India in early 2003, that the Judges there were simply not aware of the new law, and were still applying the old law almost two years after it was amended by Act 50 of 2001. In other words, a woman seeking maintenance from the husband through S.125 of the Criminal Procedure Code was left to bargain over an upper limit of Rs. 500/- when in fact this ceiling had been removed. So where is the effect of legislative activism, if we see any at all?

Taking a closer look at Act 50 of 2001, one notes three interrelated amendments that are supposed to assist women, children and parents in claiming their rightful entitlements to financial support from a recalcitrant family member, most often husbands, but also fathers or sons, who use their financial control and powers in bad faith. Firstly, the earlier maximum amount of Rs.500/- is removed altogether. This had long been asked for, but it would be too simple to assume that the Government finally did what feminists have long been asking for. There is a wider agenda here, which relates to the creation, by some sort of stealth, of uniform legal provisions across the board of all personal laws, an agenda which applies to both new amending Acts of 2001.

To interpret Act No.50 of 2001 properly and understand the nation-wide removal of the ceiling of Rs.500/-, it needs to strike Indian lawyers that in the meantime the much-contested provisions of the Muslim Women (Protection of Rights on Divorce) Act of 1986 have created a situation where a divorced Muslim husband has to maintain his ex-wife within the iddat period, a position that also prevails in traditional Muslim law. In addition, however, under the 1986 Act, such ex-husband also has to make sufficient provisions (with no ceiling provided) for his former wife, within the iddat period, but for the time thereafter. This position had long been taken by the Kerala High Court, starting with AH v. Sufaira (1988 (2) KLT 94), but seems to have been ignored by several other High Courts, especially in North India, and significantly also by scholars, who continuously refuse to give credit to South Indian High Courts for bringing out leading judgments. In Ahammed v. (1990 (1) KLT 172),even a millionaire Muslim woman was held to be entitled to further provision from the ex-husband. No riots followed Ahammed, perhaps re-assuring the Delhi lawmakers that the climate was eventually beginning to be right for the next step in securing better financial protection to all Indian women.

It is surely not a coincidence that this pro-women approach has, in 2001, been upheld as correct by the Indian Suprerne Court inDanial Latif v. Union of India (2001 (3) KLT 651 SC) = (2001 (7) SCC 740). This important case, a long-awaited decision, is simply not debated fully enough.8 A deeper reason appears to be that it constitutes a defeat for legal modernism, and is therefore embarrassing to most legal scholars. In a recent article, Professor Sathe from Pune at least recognised that, in this case, there had been judicial activism, but he was not prepared toconcede the possibility of legislative activism9 This approach is typical of the traditionality my view, it is no co-incidence that the two amending Acts and the Danial Latiji case both date to 2001.

We must also note that no financial limit was laid down by the legislature in the 1986 Ac Despite murmurs of disapproval, there were no riots on the street, probably because tl legislative ploy worked, in that everyone was told (and was happy to believe) that divorcir Muslim men had no further legal responsibility for their ex-wives after the iddat period. In fac as we now know from the Supreme Court in Danial Latifi, and were subtly told before by tl Apex Court through obiter dicta in Noor Saba Khatoon ((1997) 6 SCC 233), Muslim e; husbands, like all Indian ex-husbands under the provisions of S. 125 Crl. PC 1973, remain liab for the welfare of their ex-wife until they have made adequate provisions for the woman survival at a level that is appropriate to the parties10

It appears therefore that the Indian state has been systematically, but more or less silentl engaged in a fundamental restructuring of social welfare laws relating to securing at lea minimal support for those citizens who are dependent on others. The existing dependence on overwhelmingly male agents of control over resources will continue to exist, whatever reforms are contemplated. Has modern Western law making removed patriarchy and gender discrimination? The Indian state (whatever that stands for) does not seem to believe revolution, it is firmly tied to strategies of evolution. Thus, accepting patriarchy as a fact, which is hardly a difficult task for Indian law makers, the flip side of the coin becomes that domina men must, then, use their superior control over wealth and resources within families for tl benefit of all family members, so that there is no welfare burden on society and on the stat That concept, too, is hardly new in India, arising from the traditional joint family model, tl position of the karta and so on. Modernist scholars and feminists (who seem to argue in favo of autonomous female rights) have begun to act in strange conjunction with abusive traditionalists (who would give men favours and excessive rights without corresponding obligations) at have together protested that this is not their vision of modern Indian Laws. However, is this the right method to think and argue about law and development in India of the 21^st' Century

As I have shown recently,11 postmodern Indian law does not wish to be engaged in gender wars, but must, because of constitutional dictates, be focused on providing at least the basics for all citizens12 So there is fierce lobbying for all kinds of legal positions, but the state h become clearer about the ultimate outcome: We cannot have a scenario where millions women, children, and now increasingly old people, are on the road, hungry, thirsty, at desperate for survival. This was stated, in typically eloquent language, by the learned V.R. Krishna Iyer many years ago in a Prefatory Statement to a landmark decision of the Supreme Court:13

Welfare laws must be so read as to be effective delivery systems of the salutory objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Art. 15(3) of the Constitution must belight the meaning of the Section. The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure.

Shri. Krishna Iyer, in the same case, at p. 365, found that a maintenance arrangement that "could not keep the woman's body and soul together for a day...unless she was ready to sell her body and give up her soul!" was totally unacceptable in Indian conditions of life and under any form of Indian law. Such fundamental lessons about survival in India have not been forgotten, as it seemed for a long time. The Indian legal elephant, too, now manifesting itself as postmodern law, never forgets!

For meanwhile, it appears that the postmodern Indian state has learnt that this welfare obligation is most definitely not a task that the state itself can reasonably and realistically fulfill. The number of welfare claimants under any category would be enormous. Fiscal prudence, as much as a desire to protect women, children and old people, demands that a different approach to social welfare from that stipulated by state-driven modernity is chosen from the start. These are lessons that assumedly rich European nations are painfully learning at the moment. German pensioners, to take only one example, are faced today with reduced commitments by the welfare state to pay for their medicines, complex operations, and a host of other entitlements that well-off citizens in rich nations have become used to. Of course, they complain vigorously. The state, as Tony Blair in Britain would be the first to admit, if he was honest, can no longer pay for all those claims that are made in the name of social welfare.

My argument is, therefore, that lessons are being learnt in India from watching the anguish of developed Western states in such fields. As a result, the postmodern Indian state has begun to realise that it is not only impossible, but ultimately disastrous, to follow modernist assumptions about individuals' entitlements to state-provided benefits. Hence the re-thinking of the entire framework, as demonstrated in full force by Act 50 of 2001. So what are the impacts of the Code of Criminal Procedure (Amendment) Act of 2001 ? It does three things that are going to be extremely important in future, if properly implemented. The Act removes the ceiling for maintenance of Rs.500/- in S. 125(1) of the main Act. Secondly, it introduces a new proviso to safeguard maintenance pendente lite or interim maintenance, given that so many claimants suffer because of lackadaisical implementation of all existing laws in this field14Thirdly, it promises in another proviso to dispose of such cases, as far as possible, within sixty days from the date of the service of notice.

I am not ready to dismiss such provisions as sweet talk, typical of Indian social welfare laws. The state, evidently, means business, but people have to learn to use this new law. There will be much resistance, as Vatuk's research (see note 14), and my own preliminary enquiries, have confirmed. Here is strong evidence of legislative activism, but it will depend on continued and alert judicial activism to implement such undoubtedly beneficial legal provisions. At least the state law continues the stance that those with control over resources are accountable for the welfare of their family members. That points to a kind of symbolic legislation, which shows the way for future interpretation of these provisions. I would argue that this new law empowers all Indian women to ask for maintenance and interim maintenance, and thus strengthens their bargaining position in society, given that most cases of dispute over such matters never come to court. Men are reminded of their legal and moral obligations and there should ideally be no need for litigation. I recognise, of course, that this is too optimistic an approach, since men will continue to resist this set of obligations.

Therefore, great care needs to be taken that the implementation of this significant Act is not allowed to suffer from the familiar illnesses of tardy implementation. It also needs to be considered, eventually, whether the 1986 Act is really still needed, given that the legal position created for Muslim ex-wives under the 1986 Act has now been extended to all Indian ex-wives. Here is a wonderful example of an activist personal law enactment in Indian law ultimately inspiring the general law as well.

A similarly social activist approach is found in Act 51 of 2001, the Indian Divorce (Amendment) Act, 2001. Few comments are necessary at this stage, though there is predictably much work to be done eventually in terms of interpretation of the many sections of this Act. In essence, the long-standing complaint that Christian spouses were disadvantaged when it came to access to divorce has been rectified in a most interesting form of legislative activism. It brings Indian Christian divorce law broadly into line with the other divorce laws of India under the various personal laws and the largely optional secular Special Marriage Act of 1954. The Act provides ten grounds for dissolution of marriage among Christians, plus an additional ground for the wife if she can prove that "the husband has, also since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality".

Some Kerala lawyers will have been delighted and relieved by this long-overdue legislation. We know that some lawyers have fought long and hard for this; they deserve recognition for their efforts15 Time will tell how this Act, which we know to be a form of reluctant legislative activism, will be applied in practice. Surely, there is not going to be a flood of Christian divorce cases now, all over India and not just in Kerala? Whatever happens, safeguards will need to be established to ensure that Christian spouses are not suffering the same pernicious side effects of easy divorce as Hindu law experienced during the late 1970s and early 1980s. Some lessons learnt during that phase of modernist legal development in Indian divorce law remain probably relevant also in this field.16

Overall, I have little doubt that in due course, the significant effects of these two amending Acts of 2001 will show up on the legal screens. But in both cases, undoubtedly more so in the context of fighting for better maintenance rights, public vigilance and better legal education of the general public will need to supplement whatever reluctant legislative activism from the Centre has provided as abenchmark. As current research projects on implementation of basic rights at village level in India confirm, in daily practice the locale for empowerment of disadvantaged sections and individuals lies within the context of family and neighbourhood, not in the corridors of power in Delhi. Legislative activism of the kind described and analysed here, whether reluctant or not, like the hugely ambitious promises of international conventions, needs to be translated locally into meaningful reality. That, more than anything else, remains the biggest challenge for Indian law and society.

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Foot Note:

1. See Menski, Werner (2003): Hindu Law. Beyond Tradition and Modernity. New Delhi: Oxford University Press.

2. See for example Menski, Werner (ed.) (1999): South Asians and the Dowry Problem. New Delhi: Vistaar.

3. Jn this respect, an article on changes in the Christian personal law is quite informative. See Lakshmilyer: 'Vtiledapproach' ,'mIndiaToday International, 11 December2000,pp. 16-17.

4. See Menski, Werner (2001): Modern Indian Family Law. Richmond: Curzon Press, Chapter 3.

5. SarlaMudgalv. Union of India {MR 1995SC 1531)and(3995(2)KLT45(SC)).

6. In this context, it is highly instructive to re-read J. Duncan M. Derrett (1968): Religion, Law and the State in India. London: Faber and Faber, chapter 10 'The codification of Hindu law'.

7. For an earlier assessment, see the masterly analysis in J. Duncan M. Derrett (1978): The death of a marriage law. New Delhi: Vikas.

8. This was pointed out by Flavia Agnes in a telling conversation with Tanu Thomas K., found in The Times of India, Delhi edition, 29th August 2003, where she says that "the Press has chosen to ignore it and the general public is unaware of it".

9. S. P. Sathe (2002): 'From Shah Bano to Daniel Latifi', in [January 2002] Lawyers Collective, pp. 4-10 still refuses to read the 1986 Act as the Kerala High Court has done, thereby maintaining his own political history of this Act. This raises interesting questions over who defines and makes law. Scholars, Judges, or Parliament?

10. Clearly, Indian state law does not guarantee payments to indigent spouses. If the husba is poor, it was held in Sivankutty v. S. Komalakumari (AIR 1989 Ker 124, atl29), this is misfortune that has to be shared by the wife also".

11. See Menski (2003), as in note 1 above, Chapter 12

12. This also shines through the statement of Law Minister Arun Jaitley, cited in Iyer (2000; in note 3): "We can't wait till the cows come home. We have certain constitutional responsibilities and have to perform certain parliamentary functions".

13. In Bai Tahira v. Ali Hussain Fissali Chothia (AIR 1979 SC 362, at 362).

14. This problem is confirmed by research conducted in the Family Court of Chennai by Sylvia Vatuk, reported in '"Where will she go? What will she do?" Paternalism toward women in the administration of Muslim personal law in contemporary India', chapter 11 in Gerald James Larson (ed.) (2001) Religion and Personal Law in Secular India. A Call to Judgment. Bloomington and Indianapolis: Indiana University Press, 226-248.

15. See Mary Soniz Zachariah v. Union of India (1990(1) KLT 130) and Mary Sonia Zachariah v. Union of India (1995(1) KLT 644 (FB)). Notably, Iyer (2000, as in note 3) mentions and recognises this.

16. See Menski (2001), as in note 4, Chapter 2.

ARTICLE 51 (C) OF THE CONSTITUTION OF INDIA

(By Hon'blc Dr Justice AR. Lakshmanan, Judge, Supreme Court of India)

The decade in which India gained its independence was marred with the bloodiest war the World had seen since the advent of civilisation. It was a period of complete mistrust and disharmony. Alliances were being formed between the erstwhile allies of the Second World War. But they were alliances, which were polarising the World and creating a chasm, which was never seen before. Having gained independence one of the greatest challenges faced by our country was to preserve our sovereignty at any cost. Yet, at the same time, it was the need of the hour to embrace the new world order which was sought to be based on social and economic progress by fostering co-operation and recognizing the mutual rights and liabilities of each country.

No country can survive as an island in this vast ocean of humanity. A web of unseen bridges joins all the nations into the global village. Just like the traffic on any road, there are certain rules and regulations, which have to be followed on these bridges to avoid any mishap. International law and International Conventions lay down these rules and regulations for a smooth flow of traffic. International law and International Conventions are themselves a quintessence of the desire of the people of the World to live in peace and harmony.

The founding fathers incorporated into the Constitution the aspirations of the people of the country to consolidate peace and security in the World and for paving the way for the establishment of a just social order. In 1949, Pandit Jawaharlal Nehru addressed the U.S. Congress and said that the objectives of the foreign policies of the new nation would be preservation of the world peace and enlargement of human freedom. Thereafter he evolved the principle of Panchsheel, the five principles of harmonious co-existence of nations for establishing lasting peace on earth.

Before India became independent, the Indian Courts under British rule administered the English Common Law. They accepted the basic principles governing the relationship between international law and municipal law under the common law doctrine. Under the English Common Law Doctrine, rules of international law in general were not accepted as part of municipal law. If, however, there was no conflict between these rules and the rules of municipal law, international law was accepted in municipal law without any incorporation.

Keeping in view the aspirations of the people of the country to consolidate peace and security in the World, the founding fathers incorporated into the Constitution Art.51 of the Indian Constitution, which directs the State to:-

(a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and

(d) encourage settlement of international disputes by arbitration for paving the way for the establishment of a just social order.

Leaving a little confusion, this provision differentiates between international law and treaty obligations. It is, however, interpreted and understood that "international law" represents international customary law and "treaty obligations" represents international conventional law.

Art.51 as well as other Articles of the Directive Principles are considered by well-known Jurists to be of no potency and that they were only mere platitudes. They did not reckon with the pro-activism of the Indian Judiciary.

Prof. Weir, in his thesis "India's new Constitution Analysed" said:

"As these principles cannot be enforced in any court, they amount to a little more than a manifesto of aims and aspirations."

Sir Ivor Jennings, in an article in the Hindu, a daily newspaper about the Directive Principles said:

"They can be used for the purpose of political and private criticism but they confer no legal rights and create no legal remedy.....it all reads like, and is, a political manifesto."

It is a general criticism that since Art.51 (c) is placed under the Directive Principles of State Policy in Part IV of the Indian Constitution; it means it is not an enforceable provision. Since the principle laid down in Art.51 is not enforceable and India has merely to endeavor to foster respect for international law, this Article would mean prima facie that international law is not incorporated into the Indian Municipal Law, which is binding and enforceable. However, when Art.51 (c) is read in the light of judicial opinion and foreign policy statements, it suggests otherwise.

One such landmark judgment is of the Supreme Court of India which has dealt with the applicability of international conventions to the country; the Apex Court in the case of Vishaka v. State of Rajasthan (1997) 6 SCC 241 held:

"In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Arts. 14, 15, 19(l)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein."

"...Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and contentthereof, to promote the object of the constitutional guarantee..... regard must be had tointernational conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law."

Similarly in a string of landmark judgments, the Supreme Court has read the provisions of various International Conventions into Art.21 and the other Articles relating to Fundamental Rights. It would, therefore, appear that using Art.51 as a tool in its hands, the Supreme Court has been able to inject into Part III of the Constitution the vast number of rights flowing from the United Nations Charter, from the various conventions ratified by India and, in particular, the International Conventions on Civil and Political Rights, 1966 and the Convention on the Elimination of all Forms of Discrimination Against Women, 1979.

It is often said that, judicial activism in this field cuts into the prerogative of the Parliament to make laws and to the extent to which Art.51 should be implemented, by enacting laws for achieving objects of an international convention, is within the realm of Parliament's legislative competence under the Constitution. But the Courts, utilizing international conventions for interpreting the different provisions of the Constitution, and implementing them de hors such provisions could be criticized as encroaching upon the power given to Parliament under Art.253 of the Constitution.

In S. R. Bommai v. Union of India ((1994) 3 SCC 1) the Supreme Court of India rejected any such approach and said for the present, it would suffice it to state that the provisions of the covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by Courts as facets of those fundamental rights and hence, enforceable as such. The Supreme Court of India has a self imposed restraint when it is faced with a situation where it has to balance between the interpretation of the Constitution in such a sway that the lacunae in the municipal laws can be filled without overstepping its limit in its zeal of judicial activism.

Art.51 (c) embodies the dream of the founding fathers of our Constitution, who wanted peace and harmony in the World. They were keen to incorporate whatever was the best in the interest of our Nation. At the same time, they also had to safeguard against the over enthusiasm of the Legislature lest in their zeal they compromise on the basic integrity of our country and incorporate or ratify conventions which we neither need nor afford due to the complex and intricate character of our nation. Therefore, the Constitution envisages a goal for the Legislature in the form of Directive Principles. Art.51(c) is one such goal and the tool to fulfill this goal is in the form of enabling power of the Parliament under Art. 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.

In the case of People's Union for Civil Liberties v. Union of India reported in (1997) 1 SCC 301 referred to Art. 17 of the International Covenant on Civil and Political Rights, 1966 and Art. 12 of the Universal Declaration of Human Rights, 1948, so as to derive from Art.21 a right to privacy in India. The Court observed in this connection:

"International law today is not confined to regulating the relations between the States. Scope continues to extend. Today matters of social concern, such as health, education and economics apart from human rights fall within the ambit of International Regulations. International law is more than ever aimed at individuals. It is almost an accepted proposition of law that the Rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law."

All these would indicate the pre-eminent position that Art.51 of the Constitution enjoys as in this country fostering respect for international laws and treaty obligations with one another. This has resulted in international law being injected into the domestic law with the Constitution being classified as municipal law for this purpose. As a result, through a very pro­active judiciary which has utilized interpretative skill by utilizing the provisions of Art.51 for extending vast rights and expanding the existing rights, by giving effect to International Conventions which it has ratified, though no municipal law has been enacted to implement these Treaties. The demand for a world Parliament has often been raised at different forums for achieving peace and harmony in the World. This, however, is not the solution to the existing problems in the World. We have sufficient provisions in our respective Constitutions to achieve the peace and harmony which has been deluding us since time immemorial. What is actually needed is the spirit of harmony and mutual respect to each others rights and duties. If we are ever to achieve that state of complete harmony as in the fables, we have to rise above the petty issues, which have been dividing us. In conclusion, I would like to quote the words of former President of India - Dr. Radhakrishnan "The World has got together as a body: it is groping for a soul."

Necessity of Co-Ordination Between Public, Police, Administration

and Judiciary for ohe Rule of Law in the Country

(By Hon'ble Dr. Justice AR. Lakshmanan, Judge, Supreme Court of India)

The phrase "Rule of Law" reminds one of the famous words of Bracton "The King is under no man but under God and the Law". No one can claim to be above law. Denning's dictum "be you ever so high, the law is above you" is applicable to one and all irrespective of his position, Sex, Creed, Caste or birth.

The Constitution being supreme law, every institution be it Legislature, Executive or Judiciary created under the Constitution is expected to respect its command and no organ or Instrumentality of the Government, be it Parliament, Police or even Judiciary can ignore it. To Affirm the faith of the people in the 'Rule of Law', to preserve democracy and confirm the belief in the Latin Maxim "ibijus ibi remedium " that there is remedy under the law for every legal injury, the Judiciary under the Constitution is invested with vast powers to remedy the maladies that emnate from the failure of other branches of the Government to fulfill their constitutional obligations. Courts cannot shut their doors when executive excesses or legislative aberrations infringe upon valuable rights of the citizens or else people will take to the streets which will sound the death-knell of Rule of Law.

Very often the weak, the deprived and the under privileged groups in the society flood the prisons where as the rich and the powerful manage to escape the hands of law through money and muscle power.

A careful study of cases in which the power of withdrawal of cases has been exercised would reveal that the power has been abused by the executive for political consideration and personal gains. In a society governed by the Rule of Law, moral turpitude cannot be condoned. Under such circumstances, courts have a solemn duty to protect and preserve the administration of Criminal Justice against possible misuse and abuse of authority by the executive by resorting to withdrawal of cases against those in power and influential.

Human mind has creativity. When Citizens and bureaucrats go hand in hand to assist Administration, most of the problems get solved. There is reluctance on the part of Citizens to report cases to the police. The facts that deter people are many. They are (1) ignorance or indifference (2) fear of annoyance or publicity (3) ineffectiveness of police or their callous attitude (4) the fear of reprisal and harassment (5) inconvenience and expense of getting involved in police cases (6) non-registration of Crimes due to influence of politicians and influential.

There is need for spread of legal literacy among the masses especially the underprivileged lots. Legal literacy is not just about learning what the law says but also learning how to go about accessing it. The duty of the public to uphold the Rule of Law rests on reciprocity. Since Citizens have a duty to aid in law enforcement, the Government owes them a duty of protection when such aid places them in jeopardy.

Police

It is noteworthy that police in our country have to perform difficult and delicate task, particularly, in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities and among other the increasing number of underworld and organised gangs and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers have taken strong roots in the society. Therefore, the police has to act very diligently and if they do not act diligently and carefully, the culprits go unpunished and that is also danger for the rule of law. To deal with such a situation, a balance approach is needed to meet the ends of justice. The police should deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. It is pertinent to note that the action of the State must be right, just and fair. Using any form of torture or extracting information is neither right nor just and fair and so it is impermissible and offensive of liberty guaranteed under the Constitution. The police should change their attitude and become friendly to the society by gaining faith of the people that they are there to control the crime and maintain the rule of law for the progress of the welfare State. The human rights, which are paramount for protection of the life, liberty and dignity of the person, are supreme in constitutionally governed democracy. The mere existence of human rights is not sufficient unless they are well protected. Therefore, protection of human rights at all costs is necessary for proper function of the welfare State and maintenance of the rule of law.

The police at the helm of affairs should be trained in the course containing human rights and fundamental constitutional rights of the citizens so as to sensitize them about these rights so that there is in attitude and approach and that they could conduct investigation in scientific manner leaving aside the obsolete method of investigation by torture. This can be achieved by providing adequate training to the police officers by the Government. Thirdly, the judiciary has already started taking action by giving guidelines and seeking their enforcement and whenever occasion requires by taking severe action for violation of human rights. Human Rights Commissions and Committees should also take appropriate action to protect the human rights. Thus, if three organs of the State i.e. Legislature, Executive and the Judiciary, take appropriate steps as stated supra, definitely human rights will be upheld and the goal enshrined in the Constitution will be achieved.

I am perfectly frank in saying that since after independence, in many areas, political reasons have been allowed to govern in the direction and management of the force especially in matter of appointments, promotions, punishments, transfers, and assignments, and the evil has injured the efficiency of the force.

Frequent complaints are received from citizens that policemen use vulgar, indecent and profane language; they are maltreated, insulted or driven away when they go to police stations with a just complaint or for reasonable information. In the interest of discipline, the officers on the top must be earnest and they themselves must set the example. Lack of courtesy is among the most frequent charges by citizens against the police, and contrasts to their disadvantage in this respect with similar bodies in foreign countries is often made.

Judiciary

The Indian Judicial System is constantly exposed to new challenges, new dimensions and new signals and has to survive a world in which perhaps the only real certainty is that the circumstances of tomorrow will not be the same as those of today.

Judiciary today is more deserving of public confidence than ever before.

Our Judiciary throughout the Union of India have earned a reputation for great integrity and independence. We are proud of it. We, the members of the Judicial hierarchy have inherited the legacy of dedicated collective endeavour by the Bench and the Bar and establishing an unbroken tradition of high efficiency, perfect integrity and fearless independence. The true touch stone for measuring the success of a Judicial institution is the degree of confidence reposed in it by the public and it is a matter of great pride that our country has earned for itself the fullest respect and confidence of the public of the Nation. The Judgments of the Courts are treated with respect and its stature in knowledgeable legal circles is equal to be best amongst other Courts in this land.

The Judiciary has a special role to play in the task of achieving socio-economic goals enshrined in the Constitution while maintaining their aloofness and independence the Judges have to be aware of the social changes in the task of achieving socio-economic justice for the people.

Socrates said that four things improve a great Judge:

(a) to hear courteously;

(b) to answer wisely;

(c) to consider soberly; and

(d) to decide impartially.

I expect that Judges of all cadres to strictly observe punctuality in Court. Integrity is an essential polity of a judicial officer. A judicial officer must follow the standards of integrity, morality and behaviour which he sets for others. The Judges must decide cases without fear or favour, affection or ill will, friend or foe. The Judges, I conclude with strong belief and immense faith that judicial officers will conform to established time-tested Court etiquette and uphold the dignity and enhance the decorum of Temples of Justice.

The speedy trial of offences is a desirable goal and essence of an organized society. Due to liberal interpretations of Art.21 of the Constitution, the right to speedy trial has received the status of a fundamental right. The right cannot be denied on the ground of financial and administration inability of the State.

'JUDICIAL ACTIVISM' - TRANSGRESSES LIMITS?

(By N. Dharmadan, Senior Advocate, Former Judicial Member, C.A.T.)

Indian Constitution has special features that distinguishes it from other Constitutions of the World. It establishes a federal parliamentary form of Government. Its executive powers are vested in the Prime Minister and Council of Ministers. Unlike in some other countries we have one unified judicial system with the Supreme Court as the highest Court. Both these organs function within the frame work and parameters of the constitutional device of division of powers earmarked in the Indian Constitution. If any one of these organs exceeds the jurisdiction and oversteps the limits there would be confusion affecting the growth, development and smooth functioning of the democracy.

The sole function of the judiciary is to deliver justice to all. The role of the Judge or Judges remains relatively "pro-active". It consists of rendering decisions that is 'responsive' to the proofs and arguments. Judges do not write their opinion without regard for arguments and contentions of litigants. Adjudication is a means of deciding disputes between people or parties. The courts could decide by reasons after hearing arguments. In this sense litigants are the authors of a decision and courts are accountable to those who are bound by such decisions. Moreover the courts have to respond to the hopes and aspirations of the people to secure "justice-social, economic and political". Their decisions must be "democracy promoting".

In the discharge of its solemn function and duties the court has to be 'active' and not 'passive'; but it cannot be "overactive". The question is whether the judiciary in these days is "over active" or not and what is the remedy when it oversteps the limits and start exercising functions, assigned to other institutions under the Constitution of India?

Judicial activism is based on "legal activism", which means actively using law for bringing about social change. The Legislature may on certain occasions initiate change of its own or may act in response to any demand for such a change. The Government can also act on its own or proceed in the above line. Similarly courts might act to recognise the right not so far recognised or create new ones through interpretation of the Constitution or of the laws while adjudicating contentious issues. All this is 'legal activism' forming foundation. But the cardinal principal is that each of the institutions should confine its action within the assigned area under the Constitution. One should not trench upon the area of another.

The Courts today are not merely 'court of law for deciding issues, but have become 'Court of justice' to secure justice to every citizen of the country, for which they have to be very active and rise to the occasion. Justice for all is the cardinal principle on which our whole system of administration of justice is based. For this the law accords with justice and it should adopt to the necessity of time and needs of the society. The legislative process is too slow. Even executive may some times fail to implement the law. So this task invariably falls upon the Courts. They can by the process of interpretation or judicial activism adopt the law to suit the needs of the society. But in achieving this object the court can use or abuse or misuse the power. In this connection it should be remembered that the powers are being capable of gross misuse. So there is a great need for caution and circumspection. This is a matter for the Judge themselves to adopt or develop through 'self restraint' without any out side pressure and pulls, while they are discharging judicial functions and duties.

The power of court to give life to law was exercised by the Apex Court right from the beginning. But it was not at all 'proactive' at that time. There was self restraint. Supreme Court in A.K. Gopalan 's case1 turned down activist interpretation of Arts.19 and 21 that these Articles must be read together conjunctively and "personal liberty" must be held to include all aspects of liberty and the words "procedure established by law" must mean the procedure as is considered just and fair by a civilized society. This was not accepted. But the law had undergone a radical change ever since Kaipak's case.2 The court held that rules of natural justice might be required to be observed even in purely administrative action as well. But the turning point was Maneka Gandhi's case3 in which the Apex Court had given an expanded meaning of life and liberty while interpreting Art.21. About thirty years after A K. Gopalan's case, the Supreme Court accepted activist interpretation of Art.21 and held that procedure contemplated in this Article must be 'right, just and fair' and not arbitrary and it must pass the test of reasonableness. In subsequent cases4 the court continued the tirade and frowned against the executive tyrannyand Governments delay in affording basic minimum civic services to citizen and adopted the same approach in innumerable cases for rendering justice.

So, the period from 1978 has been a period of judicial activism. During this period the courts endeavoured to maintain rule of law, which is one of the sources of judicial activism. In fact the relevance of judicial activism and firm action by the court necessitates when constitutional crisis arises due to the misuse of powers by the constitutional authorities. Then the court should be firm and bold and rise to the occasion to do justice. So the real judicial activism can be discerned when the principle of "rule of law" is established and maintained by the court in periods of crisis. This is considered to be the duty of the court.

The next source of judicial activism is judicial review. In areas of judicial review of (i) legislative action, (ii) executive or administrative action and (iii) judicial action the courts become active. Judicial review in countries having written constitution is the power of testing the validity of legislative and governmental actions on the touch stone of the constitutional provisions and principles. The duty of the judiciary is to give effect to the legislative policy of a statute in the light of the principles and provisions of the Constitution.

It is always good for a progressive society, as envisaged in the preamble of the Constitution, the Judges function to keep the law alive and make it pragmatic and progressive for the purpose of arriving at a right conclusion without being inhabited by technicalities and narrowness the spells injustice. Lord Denning said5

"It is no longer necessary for the Judges to wring their hands and say - There is nothing we can do about it", when ever the strict interpretation of a statute gives rise to an abrade and unjust situation the Judges can and should remedy it - by reading words in, if necessary".

In Delhi Development Authority's case6 our Supreme Court also said while exercising judicial review.

"Art.129 is a constitutional power and when exercised in tandem with Art.142, all such objections should give way. The court must ensure full justice between the parties before it........The absence of statutory power will not inhibit this Court while acting under the said articlefrom making appropriate orders for doing complete justice between the parties".

Our Judges should infuse life and vigour into legal system by actively persuing alllegitimate means to do justice. "A Judge should not be................mere mechanic in the powerhouse of sematics. He should be the man in charge of it"7 Lord Denning8 again said.

"the crux of the matter is that while stitching the cloth is the business of the Legislature, straightening the creases is the province of the judiciary"

Justice Krishna Iyer once said9 that

"the Judges should consciously mould new principles to meet the needs of the present". According to him "Judges are not monks but participants in the dynamic, living stream of our national life".

Under the Constitution it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law and make the 'rule of law' meaningful. Judiciary thus exercises its supervisory function by using its power of judicial review. So in a democracy for its successful functioning independence and integrity of judiciary is sina-qua-non and it must be given highest importance. It is with this object that the framers of this Constitution had made elaborate provisions10 envisaging almost all possible contingencies.

But when the Judges exceed the limits and become overzealous due to "power corruption" what is the remedy? There is no remedy. The process of impeachment for 'proved misbehaviour or incapacity of the Judges' as provided under the Constitution had been established beyond doubt that it is not satisfactory or sufficient to meet the situation or tackle the problems or eschew the apprehensions created due to judicial excess. Daily we are seeing reports of the judgments which are virtually "usurping the functions of the executive". Now "not a day passes when front pages of news papers do not scream about "landmark" judgments of the High Courts and Supreme Court." This "judicial extremism" and aggressive role-played by the judiciary should be controlled and curtailed when it transgresses the limits. But there is no machinery or solution to alleviate the fear in the mind of the people. In fact the judiciary has the accountability and it has full transparency. Fears of "judicial tyranny" and "judicial extremism" cows down the Executive and it became very weak when compared with the past.

Many traditional procedural requirements for arriving at a decision such as locus standi, raising of specific point, filing of petition, affidavit, producing evidence etc. are either ignored or overturned; mere posting of a card to individual Judge came to be accepted for initiating judicial process for rendering decisions. Some of the latest decisions of the Apex Court reported in Narasimha Rao's in Jharkant Mukti Morcha's case11, U.P. Speaker's case12, Gujarat Presidential reference13, Lawyers Strike prohibition's case14, Madras Government Servants strike's case15 etc. are subjected to strong criticism by jurists and writers that the court has overstepped its jurisdiction and exceeded the limits. Activist Judges have been interpreting statutes in a most liberal manner with the enthusiasm by way of fishing expeditious searching for legislative intent. They adopt ingenuous methods or technical interpretation and the interpretation given to a particular statute will vary from Judge to Judge. So much so the law will lose its vitality and consistency. The decision even in settled matters become unpredictable, dubious and divergent. Thus the process of interpretation as adopted by theJudges today can be used in such a way that a particular Judge can reach to a conclusion which he desires or attunes according to his whims and fancy. This is a dangerous situation to be avoided. Unbridled powers on any institution lead to corruption. The judicial activism is a healthy trend but the judiciary should not transgress into the domain of law-making, which is exclusively with in the purview of Legislatures and Parliament. If this is allowed to continue the result would be disastrous and result in judicial autocracy. In fact the Supreme Court at the initial stage cautioned this while interpreting the scope of Arts.19 and 21 in A.K. Gopalan's case, when activist lawyers propounded new principles for acceptance. In that case the Supreme Court was giving more predominance to 'judicial restraint' stating that it is always better and fair to strike a balance between individual liberty and social control. Now due to the fact that the Legislature and Executive are very weak and Judiciary is taking upper hand and proceeding safely without any threat or interference from other two organs.

From the recent judgments and trend of the courts it is clear that the judiciary has established their superiority over the Executive and Legislature ever since the Judge case16. If the Apex Court continues the supremacy and lays down precedents and principles in that perspective it would be misused and abused by the courts below. Presumably foreseeing this situation and danger to the judiciary that the former Chief Justice, P.N. Bhagavathi, who was one of the main authors of "PIL" and a dynamic Judge cautioned and said:

"Judges should not stray too far in a field not allotted to them under the Constitution because that can become counterproductive and defeat the purpose of judicial intervention".

"We the people of India" are not completely happy about the present day 'judicial activism' because it has reached to a stage that is more worse than Executive or Legislature. A remedy has to be sorted out for ensuring the strict adherence to the tripartite division of Legislature, Executive and Judiciary in all dealing of the State and Governmental functions; one should not exercise the functions assigned to another as insisted in the prestine principle propounded by Artistotle17.

___________________________________________________________________________________

Foot Note

1. AIR 1950SC27.

2. AIR 1970 SC150.

3. AIR 1978 SC 597.

4. Ratlam Municipality v. Vandhichand AIR 1980  SC l622 and Mukti Morcha AIR 1984 SC 82.KLT

5. Nothman Vs. BemetCo. (1978) 1 All. ER 1243 at 1246.

6. AIR 1996 SC 2005 para 21 & 32.

7. Lord Denning - The Discipline of law - page 56-57.

8. Lord Denning-page 580.

9. Justice V.R. Krishna Iyer Law Versus Justice Problems and Solutions page 119

10. Art. 124 (4) and (5) of the Constitution of India.

11. AIR 1998 SC 2120.

12. AIR 1993 SC 3340.

13. AIR 1993 SC 87.

14. 2003 (l) KLT 192.

15. 2003 (3) KLT 86.

16. AIR 1994 SC 268.

17. Constitution and Seperation of powers by M.C.J. Vile and The Law and the Constitution by Sir Ivor Jennings page 280.

Public Duty & Public Law Rights: A Study in the Light of Recent

Decisions Under Art.226 of Constitution of India

(By P. Chandrasekhar, Advocate, Ernakulam)

Is Art.226 of the Constitution of India available to enforce private law rights? Administrative law in India has been shaped in the English mould. Power to issue writ or any order or direction for 'any other purpose' has been held to be included in Art.226 'with a view apparently to place all the High Courts in this country in some what the same position as the court of the King's Bench in England' (AIR 1953 SC 210).

Private law is that part of a legal system which is part of the common law that involves relationships between individuals such as the law of contract or torts. It is to be distinguished from public law which deals with relationships between individuals, business entities and non-profit organizations with the State including regulatory statutes, penal law and other law that effects the public order. English law reckons 'ordinary private law remedies' such as damages, injunction and declaration and 'public law remedies' in the form of certiorari and mandamus, collectively known as the prerogative remedies. Claims to remedies in tort are based on the infringement of private law rights and are in principle ineligible for judicial review, even though brought against public authorities. (Administrative Law: 8th Edition, H.W.R. Wade & C.F. Forsyth, page 656). Contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. House of Lords dismissed the application for certiorari of an employee of British Broadcasting Corporation to quash her dismissal since the ordinary contractual obligations of master and servant had never been within the scope of the prerogative remedies. (R V. British Broadcasting Corporation ex. p. Lavelle (1983) (1) WLR23)). In R. v. Lord Chancellor's Department Exp. Nangle ((1992) 1 All. E.R. 897) application of a civil servant for quashing disciplinary action was dismissed since his proper course was to sue for breach of contract. In R. East Berkshire Health Authority Exp. Walsh (1985 QB 152) the Appeal Court dismissed application of a male nurse against a health authority to quash the decision dismissing him from service. It was held that whether a dismissal from employment by a public authority was subject to public law remedies depended on whether there were special statutory restrictions on dismissal which underpinned the employee's position and not on the fact of employment by a public authority per se or the employee's seniority or the interest of the public in the functioning of the authority.

In Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee ([1992] 1 All. ER 705) the House of Lords was concerned with decision of the Kensington and Chelsea and Estminster Family Practitioner Committee reducing the basic practice allowance of Dr. Premananda Roy, a medical practitioner. The House of Lords held that Dr. Roy had no right to be paid a basic practice allowance until the committee had carried out their public duty to decide as to whether or not to include Dr. Roy's name on the medical list. The public law decision of the F.P.C. to include Dr. Roy's name on the medical list brought into existence private law rights and duties. True demarcation line between public and private law involves focusing on whether the decision-making body took the decision challenged in the course of its public functions. It is the nature of the function which is being performed which is all important.

In R V. Panel on Take-overs and Mergers exparte Datafin ([1987] 2 WLR 699) Sir John Donaldson MR said that 'the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction'. In the Queen on the Application of Hopley v. Liverpool Health Authority & Ors. (unreported) (30 July 2002) Justice Pitchford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are i) Whether the defendant was a public body exercising statutory powers ii) Whether the function being performed in the exercise of those powers was a public or a private one; and iiii) Whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration. In Queen on the Application of Tucker v. Director General of the National Crime Squad (R V. British Broadcasting Corporation ex p Lavelle (1983) (1) WLR 23)). Lord Justice Scot Baker of Court of Appeal dismissed the application of a Detective Inspector in the Derbyshire Constabulary for certiorari to quash the decision terminating his services stating that the decision impugned in the case did not have sufficient element of public law to be subjected to judicial review and that it was of purely domestic nature.

A body performing public duty is, of course, amenable to writ jurisdiction but all decisions of that body are not subject to judicially review. Only decisions which has public element in it are judicially reviewable under writ jurisdiction. Early decisions of the Supreme Court took notice of the fact that the makers of Indian Constitution provided and conferred on the High Court powers to issue directions, orders or writs primarily to enforce fundamental rights and 'for any other purpose' was included with a view to place 'all the High Courts in this country in some what the same position as the Court of King's Bench in England (AIR 1953 SC 210).

The Court could make an order or issue a writ in all appropriate cases and in appropriate manner so long as it keeps to the broad and fundamental principles regulating the exercise of jurisdiction in the mater of granting such writs in English law (AIR 1954 SC 440). In Lekhraj v. Dy. Custodian, Bombay (AIR 1966 SC 334), the Supreme Court said that the 'chief function of the writ is to compel the performance of public duties' and writ of mandamus is issued 'only in a case where there is a statutory duty conferred on the officer concerned'. In Banchhanidhi Rath v. The State of Orissa (AIR 1968 SC 718) it was held that 'if a right is claimed in terms of a contract such a right cannot be enforced in a Writ Petition'. In Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496), the Supreme Court did not consider the proposition that every case of a breach of contract by the State or its agents or its officers would call for interference under Art. 226 to be a sound one. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union (AIR 1976 SC 425), the Supreme Court held that 'the jurisprudence of judicial review in this branch is substantially common for Indian and Anglo-American systems'. In L.I.C. v. Escorts Lta?.((1986 1 SCC 264) the Supreme Court said that 'actions of the State or instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review’.

In a revolutionary departure from its earlier traditional view the Supreme Court in Andi Mukta S.M. V.S.S.J.M.S. Trust v. V.R. Rudani ((1989) 2 SCC 691), held that the words "any other authority" mentioned in Art. 226 are not to be confined to statutory authorities and instrumentalities of the State and that they cover any other person or body performing public duty. It was also held that mandamus could not be denied on the ground that the duty to be enforced is not imposed by the statute. The Court however emphasized that if the rights are purely of a private character no mandamus could issue. Andi Mukta's case was followed by the Supreme Court in K. Krishnamacharyulu v. Sri. Venkateswara Hindu College of Engineering ((1997) 3 SCC 571), wherein it was held that private unaided educational institutions cater to educational need of the community and therefore there is a public element. In VST Industries v. VST Industries Workers' Union ((2001) 1 SCC 298), the Supreme Court held that manufacture and sale of cigarettes did not involve any public function and that in what could be considered a part of the service conditions of service of a workman no breach of public duty is involved.

In Air India Statutory Corporation v. United Labour Union ((1997) 9 SCC 377), the Supreme Court held that 'for a public law remedy enforceable under Art. 226 of the Constitution, the action of the authority should fall in the realm of public law'. In Steel Authority of India Ltd. v. National Union of Waterfront Workers ((2001) 7 SCC page 1 at page 23) a constitution bench of the Supreme Court, observed that the 'divide between the public law and private law is material in regard to the remedies which could be availed of when enforcing the rights, public or private'.

In U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey ((1999) 1 SCC 741), the Supreme Court said that 'by various decisions the Supreme Court has held with varying and divergent view that jurisdiction under Art. 226 could be invoked only when a body or authority, the decision of which was complained of, was exercising its power in discharge of public duty and that writ is a public law remedy' Federal Bank v. Sagar Thomas (2003 (3) KLT 876 (SC)) arose from a petition of a Branch Manager of a private Scheduled Bank challenging the decision of his employer dismissing him from service. High Court held that Federal Bank Ltd. is performing public duty and as such it came under the definition of 'other authority' within the meaning of Art. 12 of the Constitution of India'. Supreme Court set aside the judgment of the High Court and held that private bank like Federal Bank did not discharge public duty and the statutory control by Reserve Bank of India do not confer any such status upon the bank. This legal position has been reiterated by the Supreme Court.

An overall survey of English and Indian decisions would show that there is no remarkable difference between the law as it applied in England and the law applied in India with regard to availability of public law remedy in the form of prerogative writs. Except in the case of a State within the meaning of Art.12 of Constitution of India and where infringement of any right guaranteed under Part III of the Constitution is complained of, the twin test of the public duty discharged by the authority and presence of public law right which is sought to be enforced is necessary to invoke writ jurisdiction.

There appears to be, however, some confusion with regard to meaning and content of the word 'authority' used in Art.12 and the same word used in Art.226 of the Constitution of India. An 'authority' which is amenable to writ jurisdiction under Art. 226 need not be an "authority" within the meaning of that word used in Art.12. Art.12 identifies an 'authority' as State for the purpose of Part III of Constitution of India. Part III contains the fundamental rights. A State within the meaning of Art.12 is amenable to writ jurisdiction under Art.32 and Art.256 of Constitution of India when infringement of fundamental right is involved. Violation of constitutional right injects necessary public element to a decision or action giving rise to public law remedy. Breach of contract on the part of State, therefore, is subject to writ jurisdiction when it involves violation of fundamental right guaranteed under the Constitution of India. State, under Art.12, has no relevant except when fundamental right is sought to be enforced. When rights other than fundamental rights are sought to be enforced it is not necessary to see whether the authority against whom the writ is asked for is an 'authority' within the meaning of Art.12. While every authority discharging a public function is not a State within the meaning of Art.12, Art.226 which has been couched in a very wide terms, takes in its ambit every 'authority' discharging a public duty. The High Court while rendering Federal Bank's case (2003 (3) KLT 876 (SC)) appears to have lost sight of this distinction. As a result the High Court, in that case went on to hold that Federal Bank is discharging a public duty and therefore is a State within the meaning of Art.12.

Two recent decisions are glaring example for the error into which High Courts are likely to be betrayed in the absence of well laid down criteria for determining 'public duty' and 'public law right'. In Suter Paul v. Sobhana English Medium High School (2003 (3) KLT 1019) the Division Bench has held that 'having considered the pervasive control of the educational authorities over the recognized unaided institutions in the State, have no hesitation to hold that such institutions are amenable to the jurisdiction of the High Court under Art. 226 of the Constitution of India. The relationship between the teachers of private schools and their employers, namely, the educational institutions in which they work, is contractual in nature. There was no statutory under pinning in the employment giving rise to any public law right. It is one thing to say that an unaided private educational institution, while imparting education, which is essentially a governmental function, is discharging public duty, and it is altogether another thing to say that teachers of an aided private educational institution by virtue of their employment has a public law right created in their favour. The service conditions of teachers and non teaching staff of recognized unaided schools in Kerala are covered by Chapter XIVA A of Kerala Education Rules. No public duty element can be found in the decision of a private school towards a teacher or a non-teaching staff of an unaided private recognized school arises unless any of the provisions of Chapter XIV AA of Kerala Education Rules is violated by the school. Though an unaided private recognized school, imparting education, is discharging public duty as held by the Division Bench in Annamma v. State of Kerala (1994 (1) KLT 309), writ to enforce contractual right arising from a contract of personal service is not maintainable.

Yet another decision in which the court failed to consider the distinction between the 'public duty' and 'public law right' is Jose Kuttiyani v. Kerala High Court Advocates' Association (2004 (1) KLT 35). The Association is an unregistered collective body of Advocates practicing in High Court of Kerala. The relation between the Association and its members is contractual and not statutory. The writ petition filed by Shri Kuttiyani, was in challenge of a decision of the Association suspending him from the primary membership of the Association. The decision did not involve any public element. By suspending Shri Kuttiyani, the Association did not violate any statutory provision and the writ was not filed alleging infringement of any statutory duty on the part of the Association. The fact that an Advocate had to be a member of an Advocate's Association to become member of Advocates' Welfare Fund and that the Association has a statutory role in forwarding the application of an Advocate for membership in the Advocates' Welfare Fund did not inject any public law element into the decision of the Association to suspend Shri Kuttiyani. In short, the Court, in Kuttiyani's case, was enforcing a private law right of Shri Kuttiyani by issuing a writ, which is a public law remedy.

It is submitted that it is time for closer scrutiny into the nature and content of 'public duty' and 'public law rights', which are necessary ingredients for invoking writ jurisdiction under Art.226 of Constitution of India and to lay down definite criteria, at least broadly, for future guidance. Had the Supreme Court held in no uncertain terms that the difference between 'public law rights' and 'private law rights' is not relevant in deciding whether decision of a person or authority is amenable to writ jurisdiction under Art.226 of Constitution of India, it would not have been necessary for High Courts to labour on the question of existence of public law element in a decision under challenge. But till such time, the necessity to demarcate the dividing line between 'public law right' and 'private law right' needs no emphasis.