Some Suggestions on Consumer Law

(By Parippally P. Sreedharan, Advocate, Kollam)

The men of law, especially the presiding officers in Consumer Forums were seeking more powers to get over the difficulties to implement their orders effectively. Neverthless the Central Government provided more teeth with Magisterial and penal powers to Consumer Dispute Redressal Forums, State Commissions and to the National Commission as per Amendment Act 62 of 2002.

Material charges are brought in Ss.25 and 27 of the Consumer Protection Act as per this new amendment. These are the only two provisions in the Act for execution and to enforce the findings or orders to realise the amount or for other reliefs.

On a close study of the above two amended sections one can see several loopholes and patent repugnancy hanging over.

S.25(1) - is the only provision in the Act for realisation of money from judgment debtors or from one who had not complied with the orders. Attachment of property is the procedure. This section denotes only Interim Order and not final Order or findings after completing the enquiry.

S.25(3) - The relief under this proviso is Revenue Recovery through District Collectors. Cannot see any other provision in the Act for realisation of money from judgment debtors. In the Act prior to amendment of S.25 the same forum or commission passing the orders were empowered to enforce the orders as if it was a decree or order made by a Court in a suit pending therein. The scope was more and wide prior to amendment. Unfortunately this general power is deleted as per the new amendment and empowered only for interim orders. Such an enactment having no powers to enforce the final orders of the forum or commissions through the same authority to realise money and for other reliefs will be imperfect, incomplete and rather to say that such enactment is defective. S.27 is only a penal provision.

Rules as per new amendments are not published and is under active consideration of the Central as well as State Governments and the interpretations of the above two sections by different authorities will be inconsistent and divergent if no constructive approach and endeavor are made by the men framing rules to get over such legal fictions in the Act.

Suggestions for Rules

S.25(1) - Order under this Section includes the orders of the District Forum under S.14, order of the State Commission under S.18 and orders of the National Commission under S.22.

S.25(3) - District Forum where the recovery proceedings is pending may have to be empowered to issue certificates for revenue recovery to any other District Collector in the State. (Property or business of judgment debtors may be out side the District. No provision in the Act to file Execution Proceedings in a different District where lies the property of judgment debtors.)

Rules may be framed in such a way enabling to file applications for recovery of amount due by way of Execution Petition in the District Forum where complaint was filed or decided irrespective of the place of residence or place carrying on business by the opposite party. (No provision to file an execution petition in a District Forum other than the complaint was decided.)

S.27(1) - Warrant outside District

District forum exercising the jurisdiction of Judicial Magistrate of the First Class may be empowered to issue arrest warrant before or after conviction against such offender or against a convicted person residing or carrying on business any where in India. (Powers under S.77, 78,79,80 and 81 in Chapter VIB of the Cr.P.C. may be conferred.)

S.27(3) - Imprisonment may be in Central Prison an not Civil Jail

In most of the cases opposite parties (Judgment debtors) will be many in number and powers for punishment is upto 3 years. It will be hard and impracticable for poor complainants to deposit amount for imprisonment in civil jail as in CPC. This jurisdiction for punishment is the only effective machinery given to District Forum as per amendment and if have no powers for imprisonment in central prison the total amendment will be ineffective and will render no use.

On whom the powers are so conferred

To get clarified whether the powers of a Judicial Magistrate of the first class so conferred under S. 27(3) is a vested right or subject to the conferment of any superior authority. No such higher authority is empowered in the Act to confer such powers.

Ss.22D and 27 – Remand

President or Senior most member may be authorised for convenience to remand an offender or a convicted person on production by police or by any person authorised to arrest in the absence of full forum (three numbers).

Can There Be a Default Clause of Imprisonment to An Order Directing Payment of Compensation Passed Under S.357(3) of the Code of Criminal Procedure? No.

(By P.N. Dilardeep, Advocate, Kollam)

"He is further directed to pay an amount of Rs.3,10,000/- (Rupees Three Lakhs ten thousand only) as compensation under S.357(3) Crl. P.C. In default of payment of compensation he shall undergo simple imprisonment for a further period of sixty days". This is the order contained in para 19(d) of a Judgment seen reported in 2002 (3) KLT page 352.

"The accused is further directed under S. 357(3) Crl. P.C.

(a) In Crl. Appeal 430 of 1995 to pay an amount of Rs. 2,75,000/- (Rupees Two lakhs seventy five thousand only) and in default to undergo simple imprisonment for a period of three months.

(b) In Crl. Appeal 431 of 1995 to pay an amount of Rs.2,25,000/- (Rupees Two lakhs twenty five thousand only) and in default to undergo simple imprisonment for a period of three months.

(c) In Crl. Appeal 435 of 1995 to pay an amount of Rs.1,75,000/- (Rupees one lakh seventy five thousand only) and in default to undergo simple imprisonment for a period of three months".

This is another order, contained in para 41 (IV) of a Judgment seen reported in 2003 (2) KLT 1. The relevant portion can be seen in page No. 14.

I, with due respect, disagree with the imposition of the default clause of imprisonment contained in the above said directions to pay compensation which were passed under S. 357(3) of the Code of Criminal Procedure. In my opinion the Court invoking the discretionary provision of S. 357(3) to console the person who has suffered any loss or injury by reason of the act complained of, cannot impose a default clause of imprisonment. And I feel that the law also support my point of view.

S.357(3) reads thus "When a court imposes a sentence of which fine does not form a part, the Court may when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced".

The provision is abundently clear that a direction to pay compensation under this Section can be passed only if fine does not form part of the sentence. If fine forms part of the sentence, provision applicable is 357(1) which reads like this "When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied:-

a) in defraying the expenses properly incurred in the prosecution.

b) In the payment to any person of compensation for any loss of injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court.

Clauses (c) and (d) are omitted as not necessary.

The important difference between the above two provisions is that under S.357(1) Crl. P.C, the Court can direct payment to the complainant/victim/injured of the whole or any part of the fine, which forms part of the sentence, by way of compensation; whereas under S.357(3) Crl. P.C. the Court can direct the accused to pay such amount by way of compensation. The amount ordered to be paid under S.357(3) does not have the characteristics of 'fine' that forms part of the sentence. Is not there any difference between the two? Yes, what is it? Before answering that question I shall point out few more aspects to substantiate my point of view.

S.357 is a provision incorporated in Chapter XXVII of the Crl. P.C. under the heading "The Judgment". This chapter contains S. 353 to S. 365 (both inclusive) of these, S.357 is regarding order to pay compensation, S. 358 is regarding compensation to persons groundless arrested. S.359 is regarding order to pay costs in non-cognizable cases. These are the provisions bestowing powers with the courts to incorporate orders, direction or award in the Judgment for the payment of compensation or costs as the case may be. Sub-s.3 of S.358 provides that if the compensation awarded cannot be recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days. S.359 also provides for a default clause of imprisonment for a period not exceeding 30 days in case the payment of money is not made. If the intention of the Legislature is to impose a default clause of imprisonment in case of non-payment of compensation under S.357(3), definitely it might have found a place in the statute book itself as in the case of Ss. 358 and 359.

Now I shall answer the above question. S.357(1) speaks about 'fine' that forms part of the sentence. If fine is a sentence or part of a sentence, definitely there can be a default clause of imprisonment. The amount ordered to be paid under S.357(3) does not have the characteristics of fine as sentence. Default clause as seen in Ss. 358 and 359 are also not seen. Therefore, the only interpretation that could be attributed to S.357(3) does not allow the courts to impose imprisonment to the persons who commit default in paying compensation under the said section.

Now a question may arise as to the mode of execution of an order for payment of compensation passed under S.357(3). The answer is there in Chapter XXXII of the Crl. P.C. The relevant provisions are Ss. 431 and 421.

S.431 provides that the money payable by virtue of an order passed under S.357(3) is recoverable as it were a fine. S.421(1) provides two different modes for the recovery of fine. There is a proviso to this sub-section. A combined reading of this proviso and the proviso to S.431 reveals that in the case of an order for the payment of expenses or compensation out of the fine under S.357 or an order for payment of cost under S.359 the court can issue a warrant as provided in S.421(1) irrespective of the fact that, the offender has undergone the whole of the imprisonment directed in the sentence for the default of the payment of fine.

Here at this juncture it is worth noticing the amendments sought to be incorporated in the N.I. Act through the Amendment Act 55 of 2002. A new section i.e., S.143 sought to be inserted reads like this S.143(1) "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences under this Chapter shall be tried by a Judicial Magistrate of First Class or by a Metropolitan Magistrate and the provisions of Ss.262 to 265 (both inclusive) of the said Code shall as far as may be apply to such trials.

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees. This proviso is intended to give power to the Judicial Magistrate of the First Class to impose a sentence of fine exceeding Rs.5,000/- prescribed by S.29(2) of Crl. P.C. If there is no difference between the fine that forms part of the sentence as provided in S.357(1) and the amount of compensation as provided in S.357(3) there would not have such an amendment. Only if the amount forms part of the sentence the court can impose the default clause of imprisonment.

In view of the above said amendment Magistrate can in a given case pass a sentence of imprisonment and also fine under S.138 and can incorporate a direction in the order to pay compensation under S.357(1) together with a default clause of imprisonment. In such an instance as I have already stated the court can issue a warrant as provided under S.421(1) for the recovery of the amount irrespective of the fact that the accused had undergone the imprisonment imposed for the default of payment of compensation.

I also finds support to my above point in the decision of the Apex Court of our country seen reported in 2001 (1) KLT 517 (SC) Pankybhai N. Patel v. State of Gujarat. In this case the only question considered by our Apex Court is whether the Judicial Magistrate of First Class could impose a sentence of fine beyond Rs. 5000/- in view of the limitation contained in S. 29(2) of the Code of Criminal Procedure. Answer to the said question is in the negative. In para 17 of the said Judgment the Hon'ble Supreme Court observes that a Magistrate who thinks it fit that the complainant must be compensated with his loss he can resort to the course indicated in S.357 of the Code of Crl. P.C. Para 19 contains the operative part of the judgment which reads thus:

"19. In the result while retaining the sentence of imprisonment of six months, we delete the fine portion from the sentence and direct the appellant to pay compensation of Rs.83,000/ - to the respondent/complainant. The said amount shall be deposited with the trial court within six months, failing which the trial court shall resort to the steps permitted by law to realise it from the appellant".

By the said order fine portion is deleted from the sentence and at the same time the amount imposed by the Magistrate as sentence of fine Rs.83,000/- is directed to be paid as compensation, but there is no default clause of imprisonment, instead, there is a direction to the trial court to resort to the steps permitted by law to realise it. The said amount of Rs.83,000/- does not form part of the sentence hence the order to pay compensation is under S.357(3) Crl. RC. If it was otherwise an order under S.357(1) could have been passed with a default clause of imprisonment.

Campus Fire-Fighting: Ban on Politics In Academic Campuses

(A Critique of the Division Bench Judgment in Sojan Francis v. M.G. University - 2003 (2) KLT 582)

(By S. Parameswaran, Advocate, High Court of Kerala)

1. The decision of the Division Bench of the Kerala High Court consists of Justice K.S. Radhakrishnan and Justice K. Padmanabhan Nair regarding politics in the college campus shows that Daniel has again come to judgment. The insidious infiltration of politics and politicians into academic campuses with the resultant creation of insubordination, intransigence and indiscipline and inimical behaviour towards fellow-students has created not merely chaos and confusion among the youngsters of impressionable age, but has imparted criminal tendencies in the tender minds of the young ones. The feeling of dissatisfaction and disappointment generated by the decision in the minds of our political leaders is amply indicative of the fear psychosis enveloping their minds concerning the narrowing scope for their parasitical existence.

2. Indian Constitutionalism is fundamentally organic, not inert and the law of the land is richly textured. Constitutional decision-making consists of Judges interpreting the snap shots and making sure that those engaged in politics do not cross the normative boundaries established during periodic bursts of higher law-making. Events on the surface of constitutional rhetoric may sometimes obscure the underlying elements of law. But, such is not the case in the judgment under reference.

3. We have had enough of politicians and politics, during the past half a century. Thanks to Indira Gandhi, such a moral transvaluation has taken place in Indian Society, particularly among the politicians, the Legislators and the Beaurocracy that the common man in India finds himself placed between the devil and the deep sea. Politicisation of the Senate and the Syndicate of the Universities, the Academic Bodies and the Teachers Associations has devalued and downgraded our educational institutions beyond repair and redemption. Dedication, dignity and discipline have disappeared from the dictionary of the academic world and scholarship has become the first casualty in the process. These are bad enough portents for our children's future. Worse still is the subtle and subterranean attempt of our politicians to seduce the toddlers in teens of our educational institutions, whose young tender minds are tarnished with thoughts of different political hues without enriching or enlightening them. This not merely diverts the attention of our children from the pursuit of their studies, but sows in their tender, yet fertile, minds with seeds of hatred, anger, ill-will and rancor. Regimentation of their tender minds with negative thoughts and destructive tendencies mars, and not makes for, their progress in education or life. Normally, a student leaves college when he or she attains 19 or 20 years of age. Before that how could one expect these youngsters to grab, and have a grip on, political philosophies. Hence the argument that an embargo on politics within the college campus is denial of right to information and, freedom of assembly is a misleading, if mischievous, argument. Social studies and political philosophies imparted in the college will suffuse their minds, with knowledge on these lines and that will suffice.

4. Injecting the venom of political rivalry into the tender and pliable minds of innocent youngsters is the primary pre-occupation of power-hungry politicians and their dreams are steadily consuming their reason. When they fail in their one-up-man ship against each other, they make a frustrated retreat of a lonely drumbeater having done enough damage to the student's psyche. The prevalent practice among our political parties is idolization of some instead of commitment to a cause which damages democratic values.

5. The Division Bench headed by Justice K.S. Radhakrishnan rightly dismissed the arguments of the advocate for these political heads that the principals, teachers and the management could take action only if some mischief was committed in the college premises. The Bench also rightly confirmed the management's right to ban political activities in academic campuses. I do not, of course, dismiss the rare possibility of a management or a principal misusing their power to manipulate a manner for removing or a student from their institutions. The underlying philosophy of the High Bench decision is that the right of uninterrupted education is a fundamental right guaranteed under Art.21 of the Constitution and therefore it was incumbent upon the State to issue regulatory measures to give effect to the Constitutional provisions.

6. Enough is enough. The future of the innocent and intelligent children of the State should not, be allowed to be sacrificed at the altar of campus politics which is both a politicians paradise and Dante's Inferno. The decision of the Kerala High Court, which has a creditable record of being a trail-blazer in handing down epoch-making, if not earth-shaking, judicial decisions, has brought a whiff of fresh air welcome to every discerning and disciplined democratic citizen of the country. The judgment will enable, nay, even force, the student community to avoid political conflicts and confrontation and concentrate on what they really need: Education. The principals need not anymore allow themselves to be hand-cuffed by the politicians and they can boldly turn up their noses at the "chota netas". Peace will prevail in academic campuses paving the way for the full-fledged fructification of the students personalities and calling a halt to the renewed cacophony of captious political criticism. There will be an end to the endless frittering away of their energies in pernicious political pursuits and its siphoning into creative, purposeful channels. It is both facile and futile to react to this reality with criticism as political leaders are tempted to do. With a deft and dexterous sleight of hand the judiciary, accomplished what public opinion could not. Academic campuses ravaged by sectarian conflicts were cleared of the malaise of political infiltration, thanks to the bold initiative of the judiciary.

7. Our politicians, who show and sheen absolutism and arbitrariness, have been told in no uncertain terms, though impliedly, by the Kerala High Court more than once that it will reject subordination of social interest to political and private interest and recognise the happiness and harmony of the people as a whole and insist on respect of Rule of Law for both individuals and society. It is a fallacy to assume, as is done in fashionable circles, that party politics is the summum bonum of existence and that purveyors of politics alone can save and salvage this country.

8. The permission for students' associations aligning on political lines has its first and most immediate effect in the result that a union of academic study and politics tends to destroy the studies and to degrade politics. The history of students' politics in this country, particularly in the State of Kerala, has shown that whenever a Student's Union is allied with one particular political party, the inevitable result has been that it stirs up hatred, disrespect and even contempt for the other unions which held a contrary belief. The belief and the propaganda that more things are wrought with politics than otherwise that this world dreams of is a myth, sedulously cultivated and assiduously disseminated by self-seeking politicians. That the students of this country were thrown into political activities in the pre-Independence era will not improve the situation inasmuch as the conditions prevalent in the country at that time when we were yoked to foreign rule were totally different than the one present in the post Independence India. The judgment under review will quieten well-justified fears that the prevalence of politics in academic campus will hackle students' tongues to make them speak only for the political parties to which their unions are affiliated.

9. I am reminded in this context - and I think rightly - of the famous words of James Maddison, the author of the First Amendment of the American Constitution, which certainly' reflected the judicial thinking on the subject as demonstrated by the Division Bench decision. It is proper to take alarm at the first experiment on our liberties.......

10. I am aware of the American Supreme Court's observations in Barnette which are reproduced in Paico (Board of Education v. Paico decided on June 25,1982) (US 457 page 853). "A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or, perhaps both. Knowledge will forever govern ignorance. And a people, who mean to be their own Governors, must arm themselves with the power which knowledge gives". The above extracted observation will, no doubt, go in support of the need for academic study of political philosophies. This has to be provided in ample measure to every University, but, it is quite different from a political regimentation that is sought to be brought in campus politics, and freedom for that is a hazardous freedom, which makes students affiliated to different students unions propelled or backed by political parties fight like Kilkenny cats not infrequently indulging in violence and vandalism which are anathema to academic pursuits.

11. One cannot endorse the views of the U.S. Supreme Court in Tinker (Tinker v. Des Moines School District). We must take the risk of a hazardous freedom being allowed to anybody, particularly the student community, which is immature and of impressionable age, knowing fully well that any departure from regimentation will cause trouble, any iolation from the majority's opinion may inspire fear and any political word spoken in the class room, in the lunch-room or in the campus that deviates from the views of another person may start an argument or cause a disturbance. When political leadership in the country has gravitated, to the cons and the dons and people with few ideas' and fewer scruples are siphoned off into leadership channels, it will be suicidal for the student community to align on political lines in campus activities. Thanks to the Division Bench decision, without the Tuppenny Politicians and Tammany Hall politics, our academic campuses will be a place dedicated to quiet, to knowledge and to beauty.

12. It is disingenuous for the politicians to look for a purely political purpose when the preambular proclamation of the Constitution concerns itself with justice, social, economy and political. There is simply no historical or factual foundation for the proposition that the Framers of the Indian Constitution intended freedom of opinion of assembly to mean that the politicians can become a law unto themselves. They were conscious of, and anxious for, the education and welfare of the children and that everything should be subordinate and subservient to this. With the Apex Courts virtual declaration of right to education as fundamental, the school headmasters and college principals have the onerous responsibility of creating a conducive atmosphere for that, undisturbed by percolation or permeation of party politics. That the children studying in Girl's Schools and Women's colleges perform much better than the boys in extra curricular activities reveals that banning of politics in academic campuses does not retard the students development against the command or demand of the freedom of assembly. The political minority cannot force the non political majority to obey its feelings of a what is due, fair and proper for the student community. As the American Supreme Court observed while dealing with the case of State-teaching of religions, "The Constitution is not a static Document whose meaning on every detail is fixed for all time by the life experience of the Framers. We have recognised in a wide variety of constitutional contexts that the practices that were in place at the time any particular anomalies were enacted into the Constitution do not necessarily fix for ever the meaning of that guarantee. To be truly faithful to the Framers, our use of the history of their time must limit itself to broad purposes, not specific practices. Therefore our High Court acted rightly in translating the majestic generality of our Constitution into concrete restraint of politicians.

13. I am not suggesting that we should regard our students as close-circuit recipients of only that which the College Authorities choose to confer, convey or communicate or that the Authorities can suppress expressions and feelings with which they do not wish to contend. Again, as the U.S. Supreme Court observed in Keyishian v. Board of Regents (1967), "Students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding." But party politics is not to - and, indeed, should not, - be the focus of such freedom, and allowed to take the place of such freedom. The College Authorities, as rightly held by the Kerala Division Bench rightly possess the significant discretion to determine whether campus politics must be permitted or prohibited. A student can literally explore the unknown and discover areas of interest and thought not covered by the prescribed curriculum. Even without the freedom for party - based politics, which not unoften leads to goondasim, the dissemination of ideas can be accomplished with willing addressees free to receive and consider the same. It is idle, therefore, to assume that academic campuses will be a barren market, place of ideas that has only sellers and no buyers, without campus politics.

14. The impugned decision will not - as is wrongly spread by interested politicians -strangle the free mind at its source and teach youngsters to discount important principles of our Government as mere platitudes; nor does it infringe the free speech rights of the students guaranteed under the Constitution of India. Nothing prevents the students from discussing political philosophies or political decisions taken by the Government or the Opposition as the case may be, based on academic purpose. But to entice the students into active politics whenever they do not have been academic interest of political philosophy and do not have the experience of life, will be a very dangerous proposition and therefore, the Hon'ble Division Bench of the Kerala High Court has stepped in at the right moment. The criticism of our political leaders is adding a new wrinkle to the High Court judgment by separating it from the legal considerations associated with the fundamental rights of the Constitution and creates a misapprehension of the circumstances of the decision. It has to be remembered that the liberty and freedom guaranteed under Art. 19(1) of the Constitution of India is not guaranteed absolutely against deprivation or control, but only deprivation and control without the processes of law. The Court was not ready for sweeping invalidation at the restriction imposed by the Management in the case on hand.

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.