The Empty Chair Prayer: To My Senior With Love !

(By K.Jaju Babu, Sr. Advocate)

“As I am vacating my humble but comfortable chair in my law office, I have to acknowledge with appreciation and gratitude the yeoman service rendered to me by my colleagues and staff, especially, Advocate Sri.K.Jaju Babu and my clerk of many years, Sri.S.K.Radhakrishnan Nair”…. These are the words of Hon’ble Justice K.P. Dandapani in the Full Court reference on 11th April 1996, in his reply speech, while being sworn in as an Additional Judge of the Kerala High Court. On 21st March 2023, weeping for the memory of a life gone by, we had to save him a seat, just one empty chair. And we now pray, whenever he comes down to earth to spend time with us, he may acknowledge us with the very same appreciation ! 

An era has come to an end and Senior Advocate K.P.Dandapani is no more. I was with him for nearly one and a half decades. The love and support of his beloved wife
Smt.Sumathi Dandapani was his hidden strength. I am also grateful to my encouraging wife Vijayalakshmi, who was also a part of the law firm Dandapani Associates.

Sri.K.P.Dandapani was a leading luminary of law for more than half a century.  During this period he has worn many hats and played many roles. He was the President of
Kerala High Court Advocates’ Association in the year 1995. The very next year he was elevated as an Additional Judge of Kerala High Court.  But he was transferred to Gujarat High Court and he opted not to go.   Instead he resumed practice before the High Court.  Hard work for another decade, he and Smt. Sumathi Dandapani, who had studied together and enrolled together in 1968, were designated as Senior Advocates in 2007.  Eventually, he was the Advocate General of Kerala during 2011-2016.  Yes.., Sri.K.P.Dandapani had a life so full, rich and meaningful.  He was a lawyer of unique talent and determination.
Ofcourse, he was the most special person in my life.

A former Naval NCC Captain of St.Albert’s High School, Sri.Dandapani was a disciplinedpersonality, always well dressed in white pants during court sessions.  He used to tell us about his humble beginning “I first came to the High Court in a cycle, then a scooter, later a car and still later I could build my own house.  All I am or having, I owe to my profession.”

He had qualities that no one expected and few had ever seen.  He was a multi-tasker par excellence.  His passion (to reach his goals), optimism (belief in himself), persistence (to face setbacks), creativity (original thinking), self-discipline (to avoid distractions), desire to improve (never considering himself perfect) and commitment to learning (searching for another when you have one decision in your favour), made him a Senior having unconventional ways to success.

The very next day I joined his office, I was favoured with the assistance of a
stenographer, never expected by any junior during that time.  He imposed only one restriction- don’t argue a case without full homework. And he insisted that before arguing, his junior should be thorough on facts as well as law.

He was very insightful.  He understands his client, first. Then he efficiently proceeds with the case expeditiously and fairly. He had an unmatched professional efficiency.  He used to fight for the cause of his client tirelessly for a successful outcome.  He treated every client, individual or institution valuable. His success was in giving them a feeling that he gave their case all the time and attention.  As a junior lawyer, he gave me all freedom and confidence to argue any case. He was also very particular that every junior in his office should maintain the dress code of a lawyer.  He was a great lawyer and a true friend.   His son Millu, daughter Mittu and grand-daughter Maneesha are also lawyers. And he taught me family is not always blood, it is the people in your life who want you in theirs. 

After putting up my own office in the year 1997, he chose me to defend him in two cases, with full confidence, declaring that relations have to be built on trust.  In the end, he showed us, sacrifice is  a part of life. He donated his body to medical science.  It is not something to regret.  It is something to aspire to.  He firmly believed that everything happens in accordance with a divine scheme and plan.

Sri.Dandapani’s demise is a momentous loss to the legal fraternity.  Junior like me, who had our good times with him and who loved him so much, are once again reminded of human mortality, as if we have lost a part of ourselves.

Yes, I am proud to be tagged on with Dandapani’s – always.

“for as in Adam, all die, so also in Christ, shall all be made alive.”                                                                                                                                           – Corinthians  15:22

Unstamped Documents –Should the Court Sit Silent,

if Marking Unopposed; and Question it Afterwards

(By Saji Koduvath, Advocate, Kottayam)

Introspection

The following forceful propositions stand paradoxical and incongruent.

● 1. Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under S.35 of the Indian Stamp Act not to admit a document that is not duly stamped even if no objection to mark it.

● 2. Under S.36 of the Indian Stamp Act, the court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection, or marked by mistake (overlooking the insufficiency of stamp).

It is yet to be resolved-

● Whether the court should sit silent and mark the document if it is not opposed, or whether the court should not allow to mark an insufficiently stamped document even if no objection is raised by the opposite side; and

● Whether the court should raise its eye-brows after marking it unopposed, and thereafter send the document for impounding, if so needed.

Instruments Not Duly Stamped, Inadmissible

Section 35, Indian Stamp Act reads as under:

● “35. Instruments not duly stamped inadmissible in evidence, etc.– No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

● Provided …..

Unstamped Document Cannot be Looked at Even for any Collateral Purpose

Privy Council in Ram Rattan v. Parma Nath (AIR 1946 PC 51), held that Section 35 of the Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.

In Omprakash v. Laxminarayan (2013 (4) KLT SN 78 (C.No.70) SC) the Apex Court observed as under:

● “From a plain reading of the aforesaid provision (S.35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, thetrial court rightly held the same to be inadmissible in evidence.”

Pay Duty With Penalty to Admit Unstamped Deed for Collateral Purpose

In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015 (4) KLT Suppl.30 (SC), the Apex Court held in the suit for declaration of title that an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e., sale between the plaintiff and defendant or its terms. It is held as under:

● “In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e., severancy of title, nature of possession of various shares but not for the primary purpose i.e., division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence,if the appellant-defendant wants to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and (sic?) get the document impounded and the trial court is at liberty to mark Exts.B-21 and B-22 for collateral purpose subject to proof and relevance.”

Section 49 of the Registration Act expressly states admissibility of unregistered documents  in evidence for collateral purposes. The word ‘collateral’ signifies something beyond or parallel. According to Law Lexicon it means “that which is by the side, and not the direct line; that which is additional to or beyond a thing” (Amit Khanna v. Suchi Khanna (2008-10 ADJ 426 = 2009-75 All LR 34 = 2009-1 AWC 929).

The Apex Court in K.B.Saha & Sons Private Ltd. v. Development Consultant (2008 (2) KLT OnLine 1164 (SC), has laid down the principle in respect of the collateral purpose.

● “From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :-

1.   A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.

2.   Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.

3.   A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4.   A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.

5.   If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.

Unstamped or Insufficiently Stamped Pro-note

Unstamped or insufficiently stamped promissory note cannot be marked in evidence. The weight of authority is on the side that says it is incurable. Hence no secondary evidence can also be lead on the same. It cannot be used for collateral purpose also. But the creditor can prosecute a suit upon ‘original consideration’.

Impounding of Instruments

Section 33 of the Indian Stamp Act provides as under:

● 33. Examination and impounding of instruments —(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

● (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed:

● Provided ….”

Section 36 of the Stamp Act – Once Admitted shall NOT be called in Question

Section 36 of the Indian Stamp Act provides as under:

● “36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.

Note: Section 61 of the Indian Stamp Act reads as under:

● 61. Revision of certain decisions of Courts regarding the sufficiency of stamps — (1) When any Court in the exercise of its civil or revenue jurisdiction of any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.

● (2) … (3) …. (4) …..

Order Admitting Document, Not liable to be Reviewed or Reversed in Appeal

The Apex Court held in Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC), as under:

● “Where a question as to the admissibility of a document is raisedon the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence.

● The Court has to judicially determine the matter as soon as the document is tenderedin evidence andbefore it is marked as an exhibit in the case.…

● Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S.36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order.

● Such an order is not one of those judicial orderswhich are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Objection be raised when Document Tendered

Our Apex Court held in Sirikonda Madhava Rao v. N.Hemalatha, 12 April, 2022 (referring Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC) and Shyamal Kumar Roy v. Sushil Kumar Agarwal (2006 (4) KLT OnLine 1148 (SC) that after marking a document unopposed, it is not open to the parties, or even the court, to re-examine the order or issue. In this case. a document purporting to be an unregistered and insufficiently-stamped sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit. It is said by the Supreme Court –

● “Once a document has been admitted in evidence, such admissioncannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court, to re-examine the order or issue.”

In Lothamasu Sambasiva Rao v. Thadwarthi Balakotiah (AIR 1973 A.P.342), and several other decisions it was held that Section 35 was only a bar to the admissibility of an unstamped or insufficiently stamped document; and that when it had been admitted in evidence it could not have been, afterwards, withdrawn. See also:

●    Pankajakshan Nair v. Shylaja(2017 (1) KLT SN 75 (C.No.85).         

●    Dundappa v. Subhash Bhimagouda Patil(2017 3 AIR (Kar.) (R) 570).

●    Savithramma R.C. v. Vijaya Bank(AIR 2015 Kar.175).

●    Jayalakshmamma v. Radhika(2015 4 Kar. L.J. 545).

●    K.Amarnath v. Smt.Puttamma(ILR 1999 Kar.4634).

●    Nanda Behera v. Akhsaya Kumar Behera(2017 AIR (CC) 1893).

Paradoxical and Incongruent Propositions

The following forceful propositions stand paradoxical and incongruent to each other-

1. Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under Section 35 of the Indian Stamp Act not to admit a document that is not duly stamped even if no objection to mark it.

2.The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Section 36 of the Indian Stamp Act.

The Karnataka High Court held in Smt.Savithramma R.C v. M/s. Vijaya Bank (AIR 2015 Kar.175), as under:

● “The trial Court is right to the extent that, once the document is marked without objection, no subsequent objection regarding its marking can be gone into and such document will have to be looked into while deciding the case on merits.This, however, does come in the way of the court discharging the statutory duty contemplated under Section 33 of the Act. …..

● From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every Judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.

● If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35**of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.

● It has nothing to do with impounding the document. A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording
ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.” (quoted in Sri.R.Suresh v. Smt.Chandramma (Kar.) 7 Dec., 2017).

Unstamped Documents - Should the Court Sit Silent and Question Afterwards

Though Smt.Savithramma R.C. v. M/s.Vijaya Bank (supra) clarified the position with great clarity. As shown above, it pointed out-

● “The Court should not depend on objections of the other Counselbefore considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act
casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.”

Therefore, it is not definite-

●    whether the court should be unfailingly diligent enough not to mark an unstamped or insufficiently stamped document, or

●    whether the court should sit silent and mark the document if it is not opposed, or

●    whether the court should raise its eye-brows after marking it unopposed.

It is yet to be solved after considering all relevant aspects.

Referring Section 36 of the (Indian) Stamp Act, Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera (2017 AIR (CC) 1893), relying on Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC) and Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao (2015 (4) KLT Suppl.30 (SC), as under:

● “Thus where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit. Once a document has been admitted in evidence, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. An unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. If the petitioner wants to mark the documents for collateral purpose, it is open to him to pay the stamp duty together with penalty and get the document impounded. Thereafter the trial court shall consider the same for collateral purpose subject to proof and relevance.”

Is Impounding “Totally Different“ from Admissibility

Section 36 of the stamp Act deals with and bar questioning ‘admission of instrument‘, alone.That interdiction or bar applies to the courts also. As pointed out earlier, our Apex Court held in Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC).

Karnataka High Court (N.Kumar, J.), in Rekha S. Chandru v. Chikka Venkatappa (2015),authoritatively held relying on Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC)  = AIR 1961 SC 1655), that when a document was already marked by the trial Court in evidence, the objection regarding stamp duty cannot be raised at a later stage. It further observed (obiter) by the Karnataka High Court that the impounding the document was “totally different” from admissibility; and therefore, an insufficiently stamped document, if admitted by mistake, was liable to be impounded by the Court and the procedure prescribed in the Stamp Act was to be followed in so far as collection of stamp duty and penalty were concerned.

In principle, no doubt, what is said by the Karnataka High Court is fully legally acceptable. But, it can be argued that the above proposition requires evaluation on the touchstone of the Apex Court verdict, Javer Chand v. Pukhraj Surana(1961 KLT OnLine 1291 (SC) = which reads as under:

● “Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Should an opportunity be given to Cure Defect, by Paying Deficit Stamp Duty?

In Kalaivani @ Devasena v. J.Ramu (2010 (1) CTC 27), it was held that an opportunity should be given to the party who produces the document with insufficient stamp, to pay the deficit stamp duty and penalty so that the document could be exhibited; and that if penalty is not paid, the document should be impounded. It is held as under:

● “It is well settled that even an unregistered document is admissible in evidence for collateral purpose provided it is adequately stamped under the Stamp Act. If the document is both unstamped and unregistered, as the document in question here, it is no doubt true that it cannot be looked into for collateral purpose also. But such a document should not be thrown out at the threshold itself and an opportunity must be extended to the party who wants to mark the document on his side by directing him to pay the deficit stamp duty along with the penalty upto date, then the document could be admitted in evidence for collateral purpose. If the person does not pay the Court, then the document is to be impounded and sent to the Collector for taking action under the law.”

Conclusion

It is not at all fair to say that if the court inadvertently marked a document or it failed to object marking, the document will stand good in favour of the party who tendered the document.

Foot Notes:

*    Corresponding to Section 35, Indian Stamp Act.                                                                 

**   Corresponding to Section 36, Indian Stamp Act.

Celebration of Women’s Rights:
A Peep into Recent Judicial Pronouncements

(Compilation By Ashly Harshad, Advocate, Supreme Court)

“There is no gate, no lock, no bolt, that you can set upon the freedom of mind of a girl”, said Virginia Woolf, the modernist English writer.

It would be apt to begin with this opening quote as in Fiona Joseph v. State of Kerala (2023 (1) KLT 376) wherein Justice Devan Ramachandran while dealing with the issue of hostel night curfew imposed on female students observed that,

“But, we must bear in mind that it is not really about protecting women – they are strong. It’s about changing how the world perceives that strength. There is no limit to what a woman can accomplish; and we need to change the dynamic, reshape the conversation – so that women’s voices are heard and heeded, not overlooked and ignored. It may have taken a while for this voice to develop; but now that it has, the new generation will not be silent – for sure!”

Again inAaron S.John v. TKM College of Engineering (2023 (1) KLT 658) Justice Devan
Ramachandran touching upon the issue of sexual harassment of girl students in campus echoed the mounting concern about the increasing instances of sexual harassment
against students in schools and colleges and urges the society to think and introspect very closely. Some of the excerpts are as follows,

“Most of, or all, the allegations of sexual harassment are made against boys and very rarely against girls; and in that perspective, certainly, it is now time for all to sit up and think intently as to what should be done, at least for the generations to come.  Boys, even from a very young age, often grow up with certain sexist stereotypes - reinforced by peer and other social influences. Showing a girl/woman respect and honour is not old fashioned; on the contrary, is a virtue for all times. The archaic concepts of masculinity has changed – it needs to change more. Sexism is not acceptable or “cool”. One exhibits strength when he respects a girl/woman. Respectfulness is an imperative that needs to be inculcated very young. How one treats a woman gives an insight to his upbringing and personality. As Ibn Qayyim Al-Jawziyya said “Women are one half of society, which gives birth to the other half, so it is as if they are the entire society.” A child should be taught at the family, and from the beginning of school, that he/she must respect the other gender. They should be taught that real men don’t bully woman – it is unmanly; and not an expression of macho virtue, but its antithesis. It is, in fact, the weak men who dominate and harass woman – this message must ring loud and clear. Boys must know that they should not touch a girl/woman without her explicit consent. They should understand “No” means “No”. We must teach our boys to be selfless and gentle, rather than selfish and entitled.”

In the concluding paragraphs exposing our current educational system which is solely based on academic results and employability, the Hon’ble Judge emphasises the need for value education so that our children grow up to be well adjusted adults.

In Kalukutty v. P.M.John (2023 (2) KLT 69), Justice Devan Ramachandrandid not shy away from observing that the contentions of the KSRTC, that a housewife earns no income and therefore, not eligible for compensation for disability and loss of amenities, as outrageous and beyond comprehension. In profound words it was commented as follows,

“The role of a mother and wife at home is beyond compare, and she is a true nation builder. She invests her time for the family and ensures that the next generation is fostered with the highest levels of excellence; and her efforts can never be taken trivially or brushed aside, as being without monetary value. The lives of human beings are never tested on the scales of their monetary worth, but by their contribution and selflessness.”

Observing thus a dictum was laid down that the monetary compensation for an injury caused to a housewife will have to be measured and weighed on the same scales, as it would been, had she been a working woman-if not more.

In another significant pronouncement viz., State of Kerala v. Civic Chandran @ C.V.Kuttan (2022 (5) KLT 875), the Hon’ble Justice Kauser Edappagath setting aside the pre-arrest bail granted to the culprit in a sexual offence case has deprecated in strong words the practice of objectifying women in regard to the dress she wears.

“Everyone has the freedom to wear whatever he/she wants to wear subject to the laws of the land. Objectifying women in regard to what she wears cannot be justified. There is no reason why a woman should be judged by her clothes. Norms that categorize woman based on her attire and expressions can never be tolerated. There cannot be any thought that women dress only to lure male attention. It is wrong to say that a woman was sexually assaulted just because she was wearing provocative clothes. Sexually provocative dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of insulting the modesty of a woman. The right to wear any dress is a natural extension of personal freedom guaranteed by the Constitution of India. Even if a woman wears a sexually provocative dress, that cannot give a licence to a man to outrage her modesty.”

In XXXXX v. XXXXX (2022 (5) KLT OnLine 1222)Justice A.Muhamed Mustaque did not
mince his words while hearing a review that stems from an appeal challenging a
divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939, wherein the Court had declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the holy Quran and is not subject to the acceptance or the will of her husband. In the opening para of the review it was noted,

“This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally.”

After a roaring discussion spanning over fifty pages and negating all the customary practices of inequality, championing the rights of women it was held that, “In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband.”

In XXX v. XXX (2021 (4) KLT 694) Justice A.Muhamed Mustaque went a bit further retracting from the usual pigeon holes of statutory interpretation of law and expounded the law regarding marital rape and declared in unequivocal terms that,

“A husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.”

Elaborating further on marital rape which is still alien to our penal jurisprudence it was ruled that marital rape is a good ground to claim divorce. It was stated that,

“Marital rape occurs when husband is under notion that body of his wife owe to him. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy. Autonomy essentially refers to a state of feeling or condition one believes to possess having control over it. In matrimony, spouse possesses such privacy as invaluable right inherent in him or her as individual. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would constitute cruelty. Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce.”

Every judicial interpretation beyond the mere letters of law not only quenches the aspirations and convictions of an ever-evolving dynamics of the society but also provide direction for law-making. In the context of the above-mentioned case, it would be in the form of an additional ground for divorce in the matrimonial laws.

To conclude, when “SHE” encompasses “HE”, which forms a homogenous class called the mankind, the distance between them should have been negligible. However, the growing atrocities against women, the rising disparities raises the concern over the ever widening gap of gender inequality. These judgments may be seen as a springboard to make a leap forward beyond the objectified beliefs, colours of custom and shadows of convenience. An attempt has been made to compile the observations and rulings in the recent judgments of High Court of Kerala addressing gender inequality with a belief that an impulse generated from a judgment spreads into the society, lives among the masses and will be instrumental in bringing out changes in the perspectives of individuals and in turn society at large.

Again, on Arrears

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

The lugubrious litigant public in the country was delighted to note the directions issued by the 50th Chief Justice of India to list every week applications for bail, transfer petitions and like matters in the Supreme Court as part of the drive to eliminate arrears. Alongside that one of the Hon’ble Judges of our High Court issued a direction to the Registrar General to prepare a list of long pending cases and await the orders of the Hon’ble Chief Justice for early disposal.

Law’s delay is nothing new. Large amount of legal literature exists about it. Yet no remedial measures are taken to rid the judiciary of the accursed arrears associated with it for years long. The more we talk about arrears the more accumulation of arrears.

What is needed is a pragmatic approach to win back the confidence of the litigant public, majority of whom are not affluent and cannot wait for years to have their grievance redressed. Unfortunately,even the new Chief Justice has repeated the hackneyed expression of need for more Judges to tackle the arrears. That is hardly a solution for the near terminal ailments of our judicial system. Quantity is a poor substitute for quality.

With the equipment and experience of our Hon’ble Judges it will not be difficult for them to determine questions of law arising in any branch of law. The High Court as the highest forum in the State, should not only be a seat of excellence but also speedy in its functioning. Matrimonial disputes shatter many families and yet they also take unduly long time. This makes both sides sorrowful, sad and distraught. They start cursing the day they decided to enter the Family Court with no end in sight.

Our Hon’ble Judges are not holding any posts but prestigious constitutional positions in the noble cause of administration of justice. What they need most is commitment and accountability to the people, which sadly is not visible to the common man. Shouldering of a constitutional responsibility necessarily demands meeting the expectations and aspirations of the people, the ultimate masters in a democracy. Nobody grudges our Judges from enjoying the glitter of their office but along with that, huge responsibility rests on their shoulders to alleviate the apprehension among the public that justice is evading them for a long time.

In most of the High Courts, civil cases receive a Cinderella treatment. Second Appeals, which are admitted only on substantial questions of law, are kept pending for as much as 25 years leaving the litigant to a state of lachrymose lassitude. Civil disputes, true, do not attract media attention excepting some high profile corporate disputes like that of Cyrus Mistry v.Tatas or O.Paneer Selvam v. Edappadi Palaniswamy, hardly any civil case gains media attention. At the same time public interest litigations not only take the pride of place in publicity but are subject matter of media discussions even when they are pending in courts.

People have every right to get speedy justice and are not expected to be bothered about modalities. With the expansive interpretation received to Article 21 of the Constitution of India speedy justice is part of the fundamental right of a citizen. No democratic country can permit innocent citizens to languish in jails, some even after conviction until their appeals are taken up by Division Benches not up to six or seven years. This is indeed a sordid story, rightly owned up by our High Court in one of its judgments.

Lawyers represent anguished and anxious faces and heavy hearts not visible in a court of law. This cannot be permitted to be a permanent feature. Remember, when regimes fell in Eastern Europe, the judiciary held on till the end.

Judges are entrusted with the job of administering justice and not administration of the State.  True the High Court of Kerala has burdened itself with administration of the Hindu temples and determine their rituals to riches. Look at the frightening facts highlighted by Shri Justice Kunhikrishnan:-

“That means some of the writ petitions are pending before this court for about 20 years. I am forced to say that there are some latches on the part of the registry also for this sorry state of affairs. It is the duty of the registry to report before the jurisdictional roaster judge about the old cases, after getting permission from the Honourable Chief Justice. The jurisdictional judge may not be knowing about the old cases because in High Court, the usual practice is that, once the cases are admitted, unless there is an urgent memo or a petition for an early hearing or other petitions for any directions, it will not be listed except for final hearing. There is a general grievance to the lawyers that the cases are not listed by the registry even after filing ‘urgent memo’. They even say sarcastically that the “urgent memos” filed are “committing suicide and disappearing”. Some of the old writ petitions are misplaced and not located. It is the duty of the registry to locate the same forthwith or get orders to recreate the file….”

The learned Judge has poignantly pointed out that “People will lose faith in the judiciary”.

One hopes this will never happen.

Concepts of Sovereignity and Federalism in Indian Constitution

(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)*

The topic of “Conceptions of Sovereignty and Federalism in Indian Constitution” would introduce a much – needed public eye into one of the plural ranges of constitutional consternation in the present-day political scenario, is a well – founded subject - matter for discussion.

Sovereignty in the Indian Constitution, according to Jean Bodin, is the “total and eternal power of commanding in a State”. It is unrestricted absolute power over people and subjects. The Preamble, of the Indian Constitution declares India a Sovereign Socialist Secular Democratic Republic. India as a Sovereign State has complete autonomy in making internal and external decisions. No foreign body has locus standi to bring an action on issues concerning India’s sovereignty. The UN High Commissioner for Human Rights (UNCHR) recently filed an application in the Supreme Court of India seeking to intervene as an amicus curiae in a petition challenging the constitutionality of the Citizenship (Amendment) Act, 2019 (CAA) and the Indian Government took the firm stand that the Citizenship (Amendment) Act is an internal matter involving Parliament’s sovereign right to make laws and that no foreign body has locus standi to bring an action or appear in court on issues concerning India’s sovereignty.Sovereignty indicates that it has no internal or external constraints.

The principle of popular sovereignty denotes that the source of governmental power or the sovereignty lies with the people. Popular sovereignty is the core basis for a democratic government.From a legal stand point, sovereignty is absolute and indestructible. The people of India adopted, enacted and gave to themselves the Constitution, having solemnly resolved to constitute India into a sovereign, democratic republic. Thus, the life force of the Constitution is derived from the people giving the sovereignty to the people. People are sovereign as the governing body derives its legitimacy from the people itself.

According to the principle of popular sovereignty, the people’s united will is the supreme authority of the land. The principle of popular sovereignty was woven into the Constitution and in the functioning of the Constitution, the power is vested in the people. Stated in another way, sovereignty is the daily operative power of framing and giving efficacy to the laws. The essence of law is the coercive force of the State and all laws are backed by the coercive power of the sovereign.The principle of popular sovereignty has been infused into our constitutional frame work from its very inception although it may not be accumulated in its truest form.

The Constitution of India is predominantly federal in practice.  The conditions existed in India necessitated the adoption of federal solutions for a sovereign democratic Republic and eventually embodied federalism in the Constitution.The popular sovereignty and constitutionalism are conceptually incompatible apparentlyon the premise that the people are sovereign is totally shattered when a 13 Judge Bench in Kesavananda Bharathi v State of Kerala (1973 KLT OnLine 1110 (SC)) held and declared that Article 368 of the Constitution does not enable Parliament to alter the Basic Structure or frame–work of the Constitution.

Resultantly, though the people were sovereign in making the Constitution and before the date of coming into force of the Constitution, the Basic Structure Doctrine propounded by the Supreme Court has changed the constitutional complexion to constitutional sovereignty.

The basic principle of ‘federalism’ is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. It was the patriotic resolve with vision and passion of the Founding Fathers of our Constitution to adopt the federal principle into our Constitution and to opt for the federal system of government. As a result,  the federal features are found in our Constitution.

The modern jurists define ‘federalism’ as a form of government in which there is division of powers between the Centre and the States, each within its sphere interdependent and coordinate with each other. Federalism is a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Thus, the essence of federalism is the existence of the Union and the States and the distribution of powers between them. ‘Federalism’ essentially implies demarcation of powers in a federal compact and is beyond the limits of ordinary lexical definition.

The Indian Government is quasi–federal in character and classified as a quasi–federal government rather than a true federal one. The Government of India Act, 1935 created the Federal Court of India with an original jurisdiction in disputes between the Provinces
inter se and between the Provinces and the federation.The jurisdiction of the Indian Federal court was confined only to constitutional matters. An appeal lay from the judgements to the Privy Council in England. Under our Constitution the Supreme Court of India is the highest Court of appeal for the whole of India. It has original jurisdiction under Article 32 for the protection and enforcement of fundamental rights. It is the highest Court of civil and criminal appeal and it has overriding powers to grant Special Leave to Appeal from any judgement, decree, determination, sentence or Order in any cause or matter passed or made by any Court or Tribunal in the territory of India except a Court or Tribunal constituted by or under any law relating to the Armed Forces.

The most important feature of our Constitution is the distribution of legislative power between the Centre and the States. Articles 245 to 255 relate to distribution of Legislative Relations. Our Constitution adopted the device of exhaustively enumerating every conceivable subject of legislative power and putting it in List I, List II and List III of the Seventh Schedule. List I - Union List includes subjects over which the Union shall have exclusive power of legislation. List II - State List comprises items or entries over which the State Legislature shall have exclusive power of legislation. The Legislature of any State also have power to make laws with respect to any of the matters enumerated in List III - Concurrent List in accordance with Article 246(2) of the Constitution of India.

Legislative power is specifically reposed in Parliament under Articles 2, 3, 11, 247, 262, 343 and 348 of the Constitution. In such cases, the distribution of power based on the Lists is not applicable and the power exclusively vest in the Parliament. In case of repugnancy between a law of a State and a law of the Union in the Concurrent List, the latter will prevail by force of Article 254(1) of the Constitution. Article 254 (2) provides that the State Legislation may, however, prevail in that State notwithstanding such repugnancy, if the State law is reserved for the consideration of the President and has received his assent.

Distribution of executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws provided that the executive power shall not extend to any State in matters with respect to which the Legislature of the State has also power to make laws.  

Under Article 3 of the Constitution, Parliament can alter or change the areas, boundaries or names of existing States.  As a matter of law, empowering Parliament to re-draw the map of India is a serious departure from the federal principle.

Part XI Chapter I of the Constitution relate to Legislative Relations. Articles 245 to 255
deal with distribution of Legislative Powers. Articles 256 to 258-A provide for the Adminis-trative Relations between the Union and the States and are the counterparts of the legislative divisions.  Distribution of Revenues between the Union and the States is provided in Articles 268 to 290 of the Constitution and the allocation of taxes between the Union and the States is mutually exclusive. The taxing power between the Union and State Legislatures is subject to the limitations imposed by the particular provisions of our Constitution such as the State Legislature or any authority within the State cannot tax the property of the Union and the Union cannot tax the property and income of a State. The power of the State to levy tax on sale or purchase of goods is subject to Article 286 of the Constitution. Save in so far as Parliament may, by law, otherwise provide, a State shall not tax the consumption or sale of electricity in the cases specified in Article 287 of the Constitution.

Articles 352 to 360 of the Constitution relate to emergency provisions. Article 352 empowers the President if on satisfaction that a grave emergency exists whereby the security of India or of any part of the territory thereof, is threatened, whether by war or external aggression or armed rebellion to make a Proclamation of emergency in respect of whole of India or of such part of the territory thereof.

Article 250 of the Constitution confers power on the Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. Article 353 of the Constitution carves out an exception to other provisions in the Constitution laying down that the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised and that the power of Parliament shall extend to make laws in respect of any matter specified therein notwithstanding that it is one which is not enumerated in the Union List.           

Where failure of Constitutional machinery occurs, Article 355 of the Constitution imposeson the Union the duty to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. A proclamation of failure of Constitutional machinery enables the Union to establish a stable government in the State in accordance with the Constitution. There is a Constitutional duty enjoined in the Union of India to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.  

Article 356 of the Constitution gives power to the President to issue Proclamation to assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; to declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament and to make such incidental and consequential provisions for giving effect to the objects of the Proclamation on his satisfaction that there is a failure of Constitutional machinery in the State. 

Article 365 provides that where any State has failed to comply with or to give effect to any directions given in exercise of the executive power of the Union, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. This provision gives power to enforce the directions issued by the Union of India under Articles 256 and 257 of the Constitution.         

The Union and the State Governments should always work in harmony avoiding constitutional discord. The concept of collaborative federalism is negotiation and coordination to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. In collaborative federalism, the Union and the State Governments should strive to achieve the common objective and work together for achieving it. The Constituent Assembly while devising the federal character of our Constitution apparently would not have thought of the possibility of the Union Government and the State Governments going off at a tangent or taking up unaccommodating principle inviting anarchism. To achieve the ultimate aim to have a holistic structure, coordination amongst the Union and the State Governments is necessitous. Pragmatic Federalism can evolve innovative solutions to problems that emerge in a federal set-up of any kind. The Union and the State Government should always practice Collaborative and Pragmatic Federalism to bring off the golden goals of justice, liberty, equality and fraternity.

A study of the aforementioned provisions of the Constitution finds a broad manifestation of deviations from the federal character in certain principal areas indicating ‘quasi-federal’ nature inherent in our Constitution. The federal principle has preponderant role inspite of the presence of quasi-federal features which is perceivable if one has run the gamut of our Constitution.            

Signally, ‘Federal balance’ is yet another complementary concept. Though the Indian Constitution prescribes a federal structure providing for division of powers between the Centre and the States with a slight tilt towards the Centre and the quasi-federal structure is inherent therein, the Constitution has provided for a federal balance between the powers of the Centre and the States so as to avoid unwarranted or uncalled for interference by the Centre. The principle of Federal balance is entrenched in our Constitution. Article 131 of the Constitution confers original jurisdiction on the Supreme Court in any dispute involves any question (whether of law or fact) between the Government of India  and one or more  States and between two or more States. The obligation to maintain the Federal balance to prevent any usurpation of power either by the Centre or the States is thus exclusively vested in the Supreme Court. However, the dispute must involve a question relating to a legal right as distinguished it from ‘political’ right over which the Courts have no jurisdiction. The role of the Court to act as the interpreter of the scheme of distribution of power in a Federal system of Government is beyond mutation by the plenary power of Parliament and is immunised.  It is a basic feature of the Constitution. Above all, the Court is final arbiter and defender of the Constitution.

*Paper presented by Senior Advocate O.V.Radhakrishnan at the function of the discussion held by the Constitution Club of Kerala High Court Advocates’ Association on the 23rd February, 2023.