KESAVA PILLAI - 2004 (1) KLT 55(F.B.) IS IT GOOD LAW?

(By G. Krishna Kumrn, Advcvate, Ernakulam)

This Article is intended to analyze the decision rendered by tiie Hon'ble High Court in Kesava Pillai v. State of Kerala (2004 (1) KLT 55 (F.B.)) wherein it was held that, in view of the newly introduced S. 100 (A) of C.P.C (Amendment Act 22 of 2002), appeal against the decision of single Judge under S.5 (2) of Kerala High Court Act, will not lie after 1.7.2002, and the AFA preferred was dismissed, eventhough it arose in a suit which was instituted prior to 1.7.02. The Full Bench in the above decision held that "No litigant can have a substantive tight for a further appeal after 1.7.2002 on the ground that proceedings from which the appeal arose were instituted prior to 1.7:2002."

The decisions of the Apex Court and various authorities whereby the Principles of Statutory Interpretation are now well settled, do not appear to have been brought to the notice of the Full Bench which rendered the decision in Kesava Pillai's case,

Eventhough an appeal is in the realm of procedure, it is not a procedure in itself. An appeal is a right of entering a Superior Court and invoking its aid and interposition to redress an error of the court below. According to His Lordship Justice Hidayathuliah1 "Though procedure does surround an appeal, the central idea is a right." Right of appeal is a right vested in the suitor at time of institution of the original proceeding. Any change in the law relating to appeals, after institution of the original proceeding, which adversely touches this vested right is presumed not to be retrospective and will not affect the rights of the parties. For example, if original proceedings are initiated prior to the C.P.C. Amendment Act 2002, unless otherwise it is specifically mentioned that S. 100 (A) is equally applicable to the proceedings initiated before the amendment Act came into force S. 100 (A) is not applicable to proceedings initiated prior to 1.7.2002.

According to Maxwell2 "When the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such right". Similar question arose before the Privy Council3 wherein it was held that "provisions which touch aright in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment ornecessary intendment". The Hon'ble Supreme Court considered this aspect in a 4landmark case. In that case the suit was instituted on 22.4.49 before the Sub court. The suit was valued at Rs.11,400/. The trial court dismissed the suit. On 4.3.55 the Andhra High Court accepted the appeal and allowed the same. The High Court refused to grant leave to appeal to Supreme Court for the reason that the suit was valued only at Rs.11,400/, without considering the point that as per S.3 of the Govt. of India Act 1935 the appellant had the right to appeal to the Federal Court which was replaced by Supreme Court. Finally it was held that the suit, out of which the application arose, having been instituted prior to the date of coming into force of the Indian Constitution, the parties thereto had from the date of the institution of the suit, a vested right of appeal, upon terms and conditions then in force and the judgment of reversal being in a suit of value above Rs.10,000/, the applicant had a vested right of appeal to the Federal Court under the provision so fold C.P.C. r/w Government of India Act 1935 and the Federal Court (Enlargement of Jurisdiction)Act 1947. It was held in paragraph 24 of the said decision "in the case before us the suit was instituted on 22.4.49 and as per principles established by the decisions referred to above the right of appeal vested in the parties thereto at that date and (sic) is to be governed by the law as it prevailed on the date, that is to say, on that date the parties acquired the right, if unsuccessful, to go up in appeal from the Sub-court to the High Court and from the High Court to the Federal Court". It was further held in the same judgment that right to appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on, and from the date, the lis commences; although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of filing of appeal." It was further held that the vested right of appeal can be taken away only by a subsequent enactment providing therefore expressly or by necessary intendment, and not otherwise.

A question regarding the applicability of new enactment to a pending proceeding arose before the Kings Bench Division5. As per S. 146(1) of the Law of Property Act 1925, a landlord served a notice to repair, on a tenant and subsequently started proceedings claiming possessionon the ground of want of repair. During the pendency, the Leasehold Property (Repairs) Act 1938 came into effect. According to this new Act, after the service of a counter notice by the tenant, the landlord could proceed to enforce the forfeiture clause of the lease only with the leave of the court, which may be granted only in the circumstances specified in the Act. The Court of Appeal held that the new Act did not have a retrospective operation and it would not affectthe rights which the landlord acquired by proceeding under the Law of Property Act6. In yet another decision by Supreme Court held that a change in law restricting grounds of appeal will not apply to the suit instituted earlier.

In a recent decision7, the Apex Court considered the question: Does a right of appeal accrue to a claimant under the M.V. Act 1939 on the institution of the claim petition in the M. A.C.T., notwithstanding its repeal by the M.V. Act 1988? Answering the question, it was held: "Unless the new Act expressly or by necessary implication makes the provisions applicable retrospectively, right of appeal will crystalise on the appellant on institution of application in Tribunal of first instance". Finally it was held that appellant's right to appeal is governed by the old Act eventhough the new Act came into force. Similar question arose Before the Division Bench of the High Court under S. 13 (1) of Kerala Civil Court Amendment Act8 In that decision it was held that eventhough the Amendment Act came into force on 27.3.1996, the right of appeal vested on the litigants who were parties in the original proceedings initiated prior to the date on which the ne w Act came into force (i .e. on 27.3.1996), the law relating to appeal will be governed by the then law.

In the light of above discussion, let us examine whether the right to prefer AFA u/S. 5(2) of the Kerala High Court Act, conferred on the litigants who are parties to the original proceedings initiated prior to the CPC Amendment Act, is taken away with retrospective effect by the newly ' introduced S. 100(A). S.100(A) of C.P.C is as follows:

"S.100(A). No further appeal in certain cases. Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."

The language employed by the Legislature in S.100(A) is clear and unambiguous. There is no express or implied indication that the provision is equally applicable to original proceedings initiated prior to 1.7.2002. To preserve the right of appeal, vested at the time of institution of original proceedings, saving clause is not necessary. Contra to take away such right, there should be express or implied indication that the provision shall have retrospective effect and will be applicable to pending matters as appeal is vested right.

In my humble view, the decision of the Full Bench in Kesava Pillai v. State of Kerala (2004 (1) KLT 55) requires reconsideration, as certain crucial aspects, as indicated above have escaped notice of the Full Bench.

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Foot Note:

1. Radhakrishnav. Sridhar AIR 1950 Nag. 177 P. 184 F.B.

2. Maxwell, Interpretation of Statutes, 11thEdn. P. 212.

3. Tata Iron and Steel Co. Ltd, v. Chief Revenue Authority AIR 1923 P.C. 148.

4. Garikapati v. Subbaiah Choudharee AIR 1957 SC 540.

5. National Real Estate & Finance Co. Ltd. v. Hassan (1939) 2 KB 61.

6. Kasibai v. Mahadu AIR 1965 SC 703.

7. Ramesh Singh v. Chintha Devi (1996) 3 SCC 142.

8. Kunnappadi Kalyani v. Lekhraj 1996 (2) KLT 106.

Let Registry Help the Prosecution

(By Ajith N., Advocate, Irinjalakuda)

Recent rulings of our High Court and the Hon. Apex Court make it mandatory that the FIR as well as the articles seized from an accused shall be sent "forthwith" to the nearest Magistrate failing which that itself casts a doubt in the prosecution story warranting the Courts to approach the prosecution case with caution. Our Criminal Judicial System bestows the accused with certain rights rather blessings. Every accused is 'innocent' until his guilt is proved beyond any reasonable doubt. An accused is also a citizen who shall not be deprived of his Constitutional rights to life and liberty. He may not have thought much about such rights which were enjoyed by the victim. The duty of the prosecution is heavy to establish the guilt of the accused.

While going through various documents produced by the Police either along with the FIR, Remand Reports or thereafter, like the Property Lists especially, it is seen that the concerned Magistrate will be putting his dated signature and seal on a particular date, but those properties are entered in the Property Register by giving the Property Index Number on a subsequent date. The delay in between these two dates may sometimes go upto five to seven days. Sometimes there may be an omission from the part of the Magistrate to put the date on the Property Lists produced by the Police.

R.28 of the Crl. R.P. (Kerala) mandates that every papers presented to the Courts shall be sealed with the date stamp of the Court immediately they are received. On receipt of FIR the Magistrate shall initial it noting the date and time of the receipt thereof. Here the prosecution is put to trouble. The S. 157 and the verdicts mandate the sending of the seized articles then and there or forthwith to the nearest Magistrate. The only available evidence before the Trial Judge or for the prosecution is only the oral evidence of the detecting or investigating officer and the Property List filed by him before the concerned Magistrate. Then if the Property List bears a different date with Property Index Number then what will be presumption available for the Court as well as the Prosecution? A flagrant violation of the provisions of S.157. The accused is given the benefit of doubt. The Court will conclude the verdict with a comment onthe prosecution "...........miserably failed in establishing the case levelled against the accusedbeyond any reasonable doubt". Who is really responsible? The Registry, the Police or the Prosecution? Beneficiary is no doubt, the accused. Presumptions of Official functions will not always help the prosecution, if the Court is having an acquittal trend.

How it can be solved is the real question to be placed before the Registry of all Registries, the Registrar, Hon. High Court. Only two or three crimes will be there wherein the MOs will be produced before the Magistrate on a single day. If the concerned Registry spends a few more minutes in putting the date seal with the initials, on the very same date itself, it will be sufficient. If time is also mentioned, nothing remains.

There will be definitely a question, whether this is the only reason for high acquittal rate in Kerala. Answer is simple. This also serves a valid ground. R.28 of the Criminal Rules of Practice in Kerala may be enforced in script and spirit. There shall be no further "miserable failures" for prosecution. Let the Registry do the needful.

Remembering M.S.

(By A.K. Jayasankaran Nambiar, M/s. Menon & Pai, Advocates)

To some, he was just a former Chief Justice of the High Court of Kerala. To most others he was the wise old man of the mountains. Nestled in his cottage in the salubrious heights of Munnar, Mannanthazhathu Sankarankutty Menon (affectionately known as M.S.) was a tower of strength and inspiration, the eternal spring to which one could turn to quench one's thirst for knowledge. The crisp mountain air, perfumed by the scent of tea leaves, must have had an enhancing effect on MS, for he chose it to be his retirement abode and lived there for almost a quarter of a century before cruel and envious fate came calling, last November.

In his death, the nation lost a great jurist, the State one of its noblest sons and humanity a great person. The subtle blend of intellect, humour, affection, courage and empathy made this man stand tall among his compatriots. He had it all and in abundant measure. To enumerate his deeds and accomplishments would require many pages even of condensed text and hence I refrain from embarking on such an exercise. In the year that has gone by, I have felt a strong yearning for those little moments that I used to spend with him in Munnar. The three or four hours that I invariably spent with him during my visits to Munnar were so inspiring and enlightening, that today I blame myself for not having spent more time with him when I could have. In those few hours, he would entertain me with little anecdotes taken from the annals of his journey through life and also discuss current topics -legal and political - with such fervour and passion that it set you thinking. His words worked like magic and had an almost catalytic effect on my thought process.

For anybody who had the pleasure of meeting MS, it was not difficult to understand why he was loved and revered by his friends and admires. His knowledge of the English language was enviable, his incisive analysis of issues unmatched and his persuasive skills were positively menacing. He had read almost everything there was that was worth reading. "A lawyer should know something of everything" he used to say. He supplemented his knowledge with his curiosity to know more about the subject. If you talked to him about something, he would pretend to know nothing of it till you had said everything that you had to say about it. He would then tell you what he knew about it (which was little!) and why he either agree or disagreed with you. He was always careful not to hurt other people's feelings. That is not to say that he did not pull you tip when he found you slacking in work. His affection and concern for a person was often gauged from the displeasure which he indicated (in no uncertain terms) to the persons when he/she did not live up to his expectations. He had a curious knack of making young lawyers, work - 99% perspiration and 1% inspiration - was his prescription for success as a lawyer.

He preached a practical method of advocacy to junior lawyers. He often said that young lawyers had necessarily to let go of their ego in the best interests of their client. "There is an element of prostitution in any persuasive profession", he once quipped with that wicked smile on his face. While he advised lawyers to fight their cases vehemently he also cautioned them against picking up a quarrel with the Judge. "Judges are human beings and all those little things that affect a human being will also affect a Judge.....fight with a Judge and you'll be fighting a losing battle", he cautioned.

MS had a great sense of humour. There wasn't a meeting with the man during the course of which you didn't burst out laughing. Years ago, when I had been to visit MS in Munnar, he was telling me about this lawyer who used to avoid all the questions put to him during the course of arguments by stating "I'm coming to that, my Lord". MS went on to narrate his own experience with the lawyer during his term as the Chief Justice. At the end of it all when I asked MS whether the said lawyer had since passed away, MS was quick to retort "No, but he's coming to it !!!"

Yes, I do miss him a lot and I'm sure there are many others who share my feelings. He was that intellectual giant, whose brains I could pick whenever I was faced with a nagging legal problem, the affectionate grandfather who would patently listen to all I had to say and then offer practical solutions to my problems, the philosophical mentor whose words of advise guided me through difficult times and, most of all, he was to me my very own - MS uncle.

Death Sentence Need for a Shift in Philosophy

(By Sreejith Cherote, Advocate, Calicut)

The maintainability of death sentence as an ideal mode of punishment for grave offence has been a subject matter of great controversy, right from the time when the objectives of punishment was confined within the walls of four theories. Perhaps the problem that is most discussed, most analysed under the criminal jurisprudence without no fruitful outcome is the justifiability of death sentence. All studies conducted on the justifiability of death sentence are incomplete in the sense that the sustainability of death sentence is analysed only on its objective merits and not on its subjective spirit.

The abolitionists and the retentionists are considering only the objective impact of retaining or abolishing death sentence. The purpose and utility of death sentence when viewed from the social angle has got several compelling reasons, which may justify its sustainability. But, while assessing its role as a successful mode of punishment, the real criteria to be considered should be subjective i.e., the criminal himself, if we have to prescribe a solution to the crisis "whether to retain or abolish death sentence".

No matter how ever abstract, results are no study is complete unless viewed from all angles. The sentence of death is not an exception. An attempt has been made to analyse death sentence from a different angle, which would suit the present social scenario.

Undoubtedly death penalty has three main purposes

(A)  Elimination

(B)  Deterrence

(C)  Confirming social solidarity by a system of collective revenge.

Death penalty as a method of elimination of the undesired and also as a mode of deterring potential offenders has been successfully adopted by successive generations. Turning the pages of history, it can be seen that, in the earlier societies death penalty was lavishly awarded as an easy method to eliminate criminals who are dangerous to the society. Hence in the Anglo Saxon period there were more than hundred crimes, which carried death sentence as punishment. In those period elimination and deterrence was admired for its double impact of easily removing the offenders forever and also setting standard for the rest of the society by fear psychosis. Elimination by way of death sentence was also admired for the reason that in those days there was scant regard for human life and human worth, followed by an unwillingness to take the risk of experiment by trying for reformation of criminals.

The concept of reforming was disregarded mainly for the reason that the earlier society did not possess the knowledge nor did they realize that the human mind is prone to reformation. The ideal “ONCE A CRIMINAL ALWAYS A CRIMINAL” was concrete and giving a criminal an opportunity to reform was considered to be a foolish and futile attempt. It was a time when criminals were judged according to their past, the concept the “THE PAST PREDICTS THE FUTURE” has been mechanically applied that there was seldom a study into the criminal behaviour. The result was that the justifiability of death sentence was considered only on an objective scale.

There is a time related justification for this outlook of our ancestors. They did not have the understanding to access the capacity of human mind. They were also not in a position to realize that the human mind was subject to reformation. They underestimated the capacity of human mind by confirming to the conclusion that once programmed human mind is never subject to change. Relying on this concept the earlier society did not want to take chance by extending an opportunity to a criminal for a probable reformation when there was an easy and economic way of getting rid of criminals dangerous to the society, moreover reformation in those days was a costly affair as sustaining a criminal in a restrictive atmosphere incurred a lot of administrative and infrastructure expenses.

Now the social circumstances have undergone a sea change. The unwillingness and hesitation on the part of the earlier society to experiment on reformation adhering on the concept of elimination and deterrence cannot be availed by the preceding generation for discarding reformation. Now we are no longer ignorant as we were. Now the idea once a criminal always a criminal lacks understanding. We have acknowledged the ability of human mind to reform. We have realized the worth of life and cost effectiveness cannot be criteria for terminating life.

If the elimination aspect of death sentence does not stand to reason then the mild impact of deterrence is not worth enough to sustain it.

Research has shown that the deterrence is the last criteria for a criminal in judging his action. Deterrence has no major role in preventing a criminal from committing a crime because; most crimes are committed in a concealed atmosphere with a firm belief that the authorities will not detect the offender.

If deterrence and elimination has failed in its purpose then the argument that by an organized execution of criminals called judicial murder will enhance social solidarity by collective revenge has to be examined for its worth. It is true that to a certain extent collective revenge helps to appease the sentiments of the victim's family and friends by allowing another injustice to happen. If we examine in detail we are superficially balancing the sentiments arising out of an injustice by committing another injustice. Instead of prescribing a solution to a problem we are balancing it with another one.

It is a high time that the justifiability of death sentence is examined on a subjective basis. It is the criminal behavior that has to be made the subject of study and not its impact on the society, while assessing the merits and demerits of death sentence. If we consider criminal as the center of the study needless to say there should be a shift from society to criminal. On analyzing death sentence in the light of the above reasoning we can conclude that for extinguishing life, the justification that it satisfies victims family and friends and also for its deterrent impact is not a convincing argument. The result of the modern study also reveals that the criminal behaviour is a' “mental abrasion” caused by intervening circumstances in a personal life, further corroborated by aspect like physiology & psychology of a person. Circumstances have a good role in pruning a criminal. The influence of the social environment in criminalizing a person's behavior cannot be under estimated. The frustration of the present day social life are a major contributory factor in creating a criminal.

Modern study also reveals that confirming to social norms need not necessarily create same response in every individual, while attaining of a peripheral solidarity quench the thirst of society, likely hood of developing negative impulse coming within the ambit of criminal behavior in a person cannot be ruled out. Adhering to social code in its strict sense is likely to reflect as developing frustration, depression and an array of other negative feelings, which in course of time expose itself in a much-aggravated form resulting in a creation of a dangerous criminal out of a social human being.

If we consider external aspects forced into the personality of a person and the role of social environment in nurturing a criminal behaviour we should acknowledge the argument that what a criminal needs is treatment and not elimination. Thus social environment especially the circumstance under which a person's character is molded has got a commendable role in the creation of a criminal. The mounting number of adolescent criminals is concrete evidence to the fact that social influence often unbalances the mental make-up of individuals at an early age.

Now there is a need for a shift from objectivity to crime and criminal. Apart from this, the society owes a responsibility towards such persons and it is neither moral nor legal to eliminate a person forever whom the society has directly or indirectly deprived.

The attitude of the public reflects as law, but the law has to be time tested for its utility. When the law prescribes an extreme penalty like the death sentence, it often has an inbuilt safety valve in the form of a subjective discretion given to the Judge. He has the freedom to consider circumstances and decide whether the act of the accused qualify for a major penalty like the death sentence. Unfortunately, the attitude of the Judges is to consider the act of the accused in the light of its gravity and impact on the society. The subjective aspect of the inherent weakness of the criminal is seldom considered. While taking such an approach the Judge sentencing an accused fail to consider his weak personality and the necessity of subjecting them to treatment for reformation.

It is submitted that, judging a criminal by evaluating his modus operandi and his existence as a threat to the society, while imposing punishment is like judging the criminal from other's angle. A judicial verdict should judge the criminal from "WITHIN" and in such judgment no Judge on earth can substitute death for death.

Instances are also there were death sentence is awarded for the sake of moral justice ad also as a measure for bringing peace in the society. Such a tendency is without a clear understanding of crime, criminal and of punitive justice.

The role of a Judge while sitting in judgment in matters involving death sentence is much like a doctor, i.e., a doctor curing social evil. His attempt should be to cure the criminal and uproot the cause of criminal behavior and not to eliminate him by taking refuge on the theory that it is for the benefit of the society at large. This is just like a doctor who is never justified in killing his patient for the reason that the patient has an infectious disease dangerous to the society. Eg. (HIV Cases).

Our history is full of examples where the present has forsaken the past for a glorious future. The whole fabric of the society is knit with the thread of history and our history is full of examples as VALKMIKI in the east and LESSMESARABLES from the west to the fact that human nature has got a universal philosophy, i.e., the ability to reform.

If we have accepted the philosophy and disagreed with its utility, at a time, when resources were limited in our hand, the same is not eternal. Now we have the means to put into use the accepted. To conclude, it could be said that history and law are like mirror and its reflection. You look into the past and plan for the future, if we assess the past we can realize the mistake and mend for the future. Opportunity should be given both for the criminal and for the society. REFERENCE

1.  Law of Crimes and Criminology                -           R.P. Kathuria

2.  Criminology, Problems & Perspectives    -           Ahammed Sidique

3.  Criminology & Penology                             -           N.V. Paranjape

JUDICIAL ACTIVISM DEVELOPS LAW OR NOT!

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

Now a days Judicial Activism seems a term which has become part of the legal language. Because of its on flow rampant criticisms are also there. The most common criticism is that Courts are issuing orders often as if emanating from a slot machine at the drop of a coin and pulling of a handle. The broad criticism rests on two grounds:

(1) There must be certainty in law so that men are enabled to plan their affairs with certitude. (2) To bring about changes in the law is role of legislators and not to the Judges. By indulging in to Judicial Activism an element of confusion happens, so that, people are tempted to take their chance gambling upon the Courts changing their mind and handing down an opinion upsetting previous precedents and put into vex many transactions. It is also attributed that the Judges are arrogating to themselves the function of the legislator, which is another constitutional organ. Those who levels this charge is not proposing a theory of an unchanging society fixed for all time at some undetermined moment. They also realize that law cannot be static but must be dynamic. They comprehend law is not a means for the society for an unchangeable mould but is an instrument of social change and progress.

To speak about law being unalterable is to contradict the entire history of law. Throughout history, law had been one of the most potent instrumentalities through the medium of which social changes have been brought about or given legal sanction. At times this process may have been slow and hesitant, yet it has got its own fruitful effect. The development of law has through centuries gone hand in hand with the march of civilization. Nobody can deny that law needs certainty. But it does not mean that certainty can be at the expenses of flexibility. There is in human affairs constantly recurring cycle of change and experiment. Old valuation, old ideologies and old systems give place to new ideologies and new system of valuation. Since no legislator can forsee all the myriad situations which arise and are likely to arise in human affairs, it is for those who administer the law namely the Judges to apply the law into new situation and this the Judge does in case of enacted laws by process of interpreting statute. Thus not only engravings but also photographs were held to be protected by the Copyright Act 1734, in the famous decision Gambart v. Bell though no member of the Parliament which passed the said Copyright Act in the 17th century could have possibly dreamt of photographic camera. Thus the Judge had interpreted the law in accordance with the need of life. In the same way in Attorney General v. Edison and Company a telephone was held to be a telegraph within the meaning of the Telegraphs Act 1863, though no one had even heard of a telephone when the said statute was enacted. Likewise an electric tram car was held to be a stage carriage within the meaning of the Stage Carriages Act 1832 in Chapman v. Kirke. What has been said above about statute law, the source of which is legislation, applies with even greater force to case law, the source of which is judicial precedents. Case law is not a law which develops by a process of interpretation placed by the courts upon rules of law declared by another constitutional organ or authority in the body politic. But is a law developed by the courts within the courts and the foundation of that law is the doctrine of precedents. If a case has been decided earlier in one way, in a subsequent case which is similar to it the courts will apply the ratio decidendi of the earlier case and decide it in the same way. But what if the subsequent case is similar to the earlier one only superficially but differs from it in basic essentials? Is the court to tell the plaintiff that there is no precedents which will fit his case and therefore it cannot give him any relief? This would be to do gross injustice. What therefore the court does by the process of interpretation in the case of the statute law, it does by the process of analogy in the case of judge made law. It extends the principle laid down in the earlier case to fit in with the new set of circumstance. It is by this process that the whole of the Common Law of English developed, the principles of equity developed in the Chancery . Courts and the entire body of Administrative Law grew in the present century. A Judge who is deterred by want of precedents forgets that for a case to became a precedent it had once to be the first case of its kind and if the argument as to the inflexibility of the action had at that time found favour with the Judges, the principle laid down in that precedents would have never come into existence and the law would have remained static and made no progress. Had there been no Judges bold enough to evolve new principles out of old rules, we would have had no mile stones in the history of common law. Thus there would have been no rule that there need be no proof of actual damage in actionable torts per se without Ashby v. White nor would an action for deceit have been there butforfWey v. Freeman. In the same way but for Rylands v. Fletcher an occupier of land could have with impunity brought and kept on it anything likely to cause damage if it escaped and would have himself escaped all liability if he had not been negligent and had Donoghue v. Stevenson not been decided in the way in which it was, manufacturers would have been immune from liability to the ultimate consumers and users of their goods and so would have repairers, assemblers, erectors, builders and inspectors to whom the principle laid down in that case has been extended by the courts even in the 21^st century.

Even all early systems of law evolved by a process very much akin to Judicial Activism. In those days the distinctions between the giver of laws and the dispenser of justice was blurred, for law was considered a devine revelation and those who administered it as instruments ordained for that purpose. Thus the Babilonians believed that the Code which their King Hammurabi proclaimed was given to him by the Sun God. The ancient Egyptians believed that their law had come from God Tot. Persians believed that their law came through the instrumentality of Prophet Zorastrian. Jews believed that their law had been divinely revealed to Moses. To the Hindus law was a part of Dharma and for Muslims it is contained in the Koran which they believed was revealed to Prophet Mohammad by the Angel Gabrial. Omitting the first three out of the legal systems mentioned above, namely the legal systems of Babilonians, Egyptians and Persians the remaining systems which still exisit developed in very much the same way of interpretation and analogy. The core of these laws to be found in the sacred scriptures was elucidated in the process and at times liberalised and in some respects even made more rigid by expounders and commentators who were often also judges and mostly held priestly offices. These expositions were either commentaries on the law or were compilations of decisions given on individual cases and problems. So far as the Jewish law is concerned the first five books of the old Testament namely Genesis, Exodus, Leviticus, Numbers and Devteronomy were commonly known as law revealed to Moses. In the same way Hindu Law as announced in the Smrithies and having its roots in the Vedas came to be expounded, elucidated and expanded in the different institutions, digests and commentaries. These divergent views gave rise to different Schools of Hindu Law called the Mitakshara, the Dayabhaga and Marumaklcathaya, Aliyasandana and the Nampoodiri system of laws. Only two hundred verses out of about six hundred verses which comprise Koran lay down legal principles. The interpretation of these verses, the manner in which the broad principles laid down in these verses were applied by Prophet Mohammad, the analogical deductions derived from them, the traditions and customs which are considered binding, and the schism which followed the death of Mohammad resulted in Muslim Law developing into two distinct channels resulting in the Shia School and the Sunni School of laws.

All these earlier systems of law developed by the process of exposition which was in substance a species of Judicial Activism that came to be accepted by the people as binding out of the great venerations. As the very brief outline sketch given above will show, Judicial Activism has been through out the centuries and in many different legal systems an important instrument for developing the law. Why is it then that Judicial Activism has suddenly come in bad odour in certain quarters? Why has Judicial Activism become of late a matter of criticism ? There are two broad reasons. One is the constitutional structure of several new Nations and the other is the abandonment by the States of their traditional role of welfare States. There are two other allied questions come up. The first is, why is it that the work of change which the Courts have been doing cannot be done as well by the legislator or executive? The second is whether there should be any restraint on Judicial Activism. The modern legislators and executives do not have enough time for the purpose mentioned in the first question. Parliaments are increasingly concerned with passing legislation reflecting the political, social and economic philosophy of the ruling party in power and not the private needs of the citizens. Even obsolete and meaningless enactments are still lying in the statute books without any change or amendment. Regarding Judicial restraint it cannot be totally achieved. The amount of restraint should be left to the presiding Judge himself concerned. Fears have been expressed that Judicial Activism unless restraints are imposed will run riot and make all work of Governments and legislators impossible. Nothing can be more ill founded than such fears. Judges are not impish School boys who take delight in striking down legislative measures and administrative orders just for the fun of it nor does their future depend upon hitting the head lines. They have in constitutional matters themselves imposed self-restraints. They do not, for instance decide a constitutional issue unless it directly and substantially arises in the case before them. Thus to deny Judicial Activism to the Courts is to nullify the Judicial process and to negate justice. In todays world, where there is so much emphasis on human rights, the concept is that the legal system should so operate as to secure social justice to all. Gone are the days when Anatole France with bitter irony but truthfully say of law as follows: "The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in streets and to steal bread." The collective will of the society today wants that if the rich sleeps in luxury the poor shall atleast sleep with a roof over his head. That if the rich can eat both bread and cake the poor shall atleast eat bread. Nature abhors vacuum. Thus Judicial Activism has to run along with the society stretching its both hands up to give a welcome gesture to all who need it.