Justice an Enigma

(By V.K.Babu Prakash, Presiding Officer, Labour Court, Kollam)

Time changes,

so does the season.

Birds fly to newer places

leaving the old.

My years as a judge

are running faster to finish

to call it a day.

I have been running

in between the rising and setting sun

to catch up with it.

The sun is the same

in a relative way.

But, I am getting older

and breathing hard

unable to run

with the sun

while I was young.

I like to rest

somewhere and watch out

the setting sun.

When looking back

what had I achieved ?

Did I find truth

as a judge in my dispensation ?

Don’t know...

As only a smoke screen appears

from the shadows

obfuscating the vision

I can only feel

that the truth

was only a riddle

cleverly hidden by

the litigants and lawyers

among the thicket

of law and facts.

Sometimes, too many

procedural laws never

helped to find out

truth from the cloud of

facts which were entangled

like a cob web.

After all, I was only

a mediocre judge

who was not dare enough

to travel to the

forbidden areas to

see the magnificent truth

in its real avatar.

Truth was always elusive

in the endeavor

to render justice

to the needy.

And what is justice ?

A word which

is always a mystery

enwrapped in an enigma..

……………….

\oXn]oT¯nsâ ImcpWyhÀjw

(ByAUzt¡äv H. lmcokv, Imbw-Ipfw)

kaql¯n A¨S¡hpw {Iakam[m\hpw sI«pd¸pw DImIp¶Xn\v \nbaw BhiyamWv. a\pjyÀ¡v kam[m\t¯msS Ignbp¶Xn\mWv \nba§Ä \nÀ½n¡p¶Xv. kmaqlnI PohnX¯nsâ DuSpw ]mhpamWv \nba§Ä. \nba¯n\v ap¶n FÃmhcpw ka³amcmsW¶v ]dbmdpIv. \oXn tXSnbpÅ am\hsâ ssP{Xbm{Xbv¡v a\pjyhwi¯nsâ A{XXs¶ ]g¡apIv. \oXnam³amcmb cmPm¡³amÀ Ncn{X¯n btim[hmeyw cNn¨hcmWv. Ncn{Xw BhÀ¯n¡pt¼mÄ C¯cw Hfna§m¯ HmÀ½IÄ \½sf NnesXms¡ DWÀ¯p¶p. A¯c¯n Gähpw {it²b§fmb \oXn]oT¯nsâ cIv hyXykvX ImcpWyhÀj IY kao]Ime¯v \ap¡v A\p`hnt¡Inh¶p.

P\m[n]Xy¯nsâ s\SpwXqWpIfn H¶mWtÃm PpUojdn. CXnsâ Gähpw {][m\s¸« t]mcmbvabmbn ImWp¶Xv tIkpIfn hn[nI¸n¡p¶XnepImIp¶ ImeXmakamWv. aÀ¯yÀ¡nSbn \oXn e`yam¡m\mWv \nba§Ä hmÀs¯Sp¡p¶Xv. \oXn sshIp¶Xv AXv \ntj[n¡p¶Xn\v Xpeyambn IW¡m¡p¶p. BImiw CSnªv hoWmepw \oXn \S¸m¡pw F¶mWv tIcf sslt¡mSXnbpsS s\dpIbn tcJs¸Sp¯nbncn¡p¶Xv.

AXnÀ¯nIm¡pw amaeIÄ t]mse Dbc¯n sI«nInS¡p¶ tIkpsI«pIfpsS Iq¼mcw Ipdbv¡p¶Xn\mbn IsI¯nb \ho\ amÀ¤amWv AZme¯pIÄ. X§fptSXÃm¯ ImcW§ÄsImIv tIkpsI«nsâ NcSn\I¯v AIs¸« At\Imbncw a\pjyÀ \ap¡nSbn hkn¡p¶p. AsXm¶gns¨Sp¡m³ AXnsâ ]nSnsbm¶v hnSphn¡m³ Xsâ BbpÊpw BtcmKyhpw k¼¯pw IjvS¸mSpw hn\ntbmKnt¡In hcp¶ lX`mKyÀ  kaql¯n [mcmfapIv. A¯c¯n AIs¸«hsc ]Zhn ad¶v ImcpWy¯nsâ tX³agsNmcnª cIv thdn« \ymbm[n]³amcpsS kvt\tlm³apJamb hnkvXmcamWv XpSsc tImdnbnSp¶Xv. kvt\lapJapÅ Hcp \oXnIY F¶ t]cn ]pd¯ph¶ hSIcbnse Hcp \ymbm[n]³ s]mXpkaql¯n\v Im«nsImSp¯ amXrI \oXn]oT¯nsâ biÊv hÀ²n¸n¡p¶Xmbncp¶p. Xq¡pIbdpw PbnÂin£bpw ]ngbpw am{Xw hn[nsbgpXp¶ Ic§fn \n¶v kvt\l¯nsâbpw ImcpWy¯nsâbpw kzm´\¯nsâbpw Xmcm«v tI«t¸mÄ \oXn]oT§Ä¡v am{Xaà s]mXpa\Ênepw IpfnÀag s]bvXp.

Hcp ]mhs¸« a\pjy³ _m¦n \n¶pw hmbv]sbSp¯v IS¯n ap§n hmbv] XpI Xncn¨S¡m³ \nhr¯nbnÃmsX h¶t¸mÄ P]vXnIbÀ Igp¯n apdpIn izmkw ap«nb B a\pjy\v s\SphoÀ¸nSm³ thIn Xsâ i¼f¯n \n¶pw ]Xn\¿mbncw cq] \ÂIn Hcp IpSpw_s¯  c£s¸Sp¯nb hSIc ap³kn^v tImSXnbnse Achnµv kn. CSbmSn F¶ \ymbm[n]\v ta ImcpWy tIcf¯nsâ kvt\lm{iphÀjw s]menªp. hSIc eoK kÀÆokkv AtXmcnänbpsS B`napJy¯n \S¯nb AZme¯n hfbw Npgen \¼ymÀIp¶pta Ipamcsâ tIknemWv Cu a\pjysâ th]Yp \ngen¨ PohnXw \ymbm[n]³ IIXv. 2008 Ipamc³ Im\d_m¦n ]md¡Shv imJbn \n¶pw hmbv]bmbn FSp¯ Ccp]¯¿mbncw cq] ]enibS¡w ap¸¯¿mbnc¯n Fgp¶qän A¼Xv cq]bmbn hÀ²n¡pIbpw _m¦v Ipamcs\Xnsc tIkv ^b sN¿pIbpw sNbvXp. hn[n ssh]cnXy¯n PohnXt¢iw t\cnSpIbpw A]IS¯nÂs¸«pImb km¼¯nI ]cm[o\Xbpw ImcWw hmbv] XpI Xncn¨S¡m³ Ipamc\v IgnªnÃ. XpSÀ¶v _m¦v P]vXnbS¡w \nba\S]Sn kzoIcn¨p.

XpI Xncn¨S¡m³ IgnbmsX hn§ns¸m«nb Ipamcsâ \nÊlmbhØ a\Ênem¡nb Cu \ymbm[n]³ _m¦v DtZymKسamcpambn kwkmcn¨v tIkv H¯pXoÀ¸m¡n HSpt¡Ip¶ _m¡n XpI Ipamc\pthIn \ymbm[n]³ kz´w t]m¡än \n¶pw \ÂInbmWv amXrI Im«nbXv. Ipamcsâ s\©nse XobW¡m³ Ignsª¶ NmcpXmÀ°y¯n kvt\lkv]Àinbmb \ymbm[n]³ Xm³ sNbvXXv shdpsamcp \nÊmcImcyambn IcpXn ASp¯ tIkpsI«nse NcSv Agn¡pIbmbncp¶p.

GXm\pw Znhk§Ä¡v ap¼v asämcp ImcpWyhÀjhpw \oXn]oT¯n \n¶v \ap¡v A\p`hnt¡In h¶p. AXv IpS¸\IfpsS \mSmb ]me¡mSv \n¶mbncp¶p. cIv ]XnämIv ap¼v \S¶ hml\m]IS¯n Ggp hbÊpÅ aI³ \jvSs¸«  amXm]nXm¡Ä¡v \jvS]cnlmcXpI \ÂIp¶Xnte¡pImb ImeXmakamWv tamt«mÀ BIvknUâv s¢bnwkv ss{S_qW PUvPn  Xsâ i¼f¯n \n¶pw Hcpe£w cq] \ÂIn amXrI Im«nbXv. ]cmXn¡mc\v \oXn\ymb kwhn[m\¯nepÅ hnizmkw \jvSs¸SmXncn¡m\mWv Xm³ amXrI Im«nbsX¶v PUvPn ]dbp¶p.

1993 sabv 10 \v ]pXp¸cnbmc¯v DImb hml\m]IS¯n hm¡n ]d¼n kpµcsâ aI³ acn¨ tIkn \jvS]cnlmcw Bhiys¸«v \ÂInb lÀPn 1996  G{]n 16\v hn[nbmbn. hn[n XpIbn \n¶v Ccp]¯¿mbncw cq] BZyL«¯n lÀPn¡mc\v e`n¨ncp¶p. _m¡nXpIbpw ]enibpw C³jpd³kv I¼\n tImSXnbn sI«nsh¨p. Cu XpI kpµcsâbpw `mcybpsSbpw t]cn \nt£]n¡phm³ tImSXn D¯chnSpIbpw sNbvXp. F¶m tImSXn Poh\¡mÀ XpI kpµc\v ]Icw sImÃwtImSv s\³ta\n kztZinbmb cmaIrjvW³ F¶ Bfnsâ t]cnepÅ A¡uInemWv _m¦n \nt£]n¨Xv. tImSXn Poh\¡mÀ¡v kw`hn¨ ]niImWv A¡uIv \¼À amdn XpI \nt£]n¡m³ ImcWw. ]n¶oSv Hcp hml\m]IS¯n cmaIrjvW³ acWaSbpIbpw sNbvXp.

X§Ä¡v \jvS]cnlmcXpI e`n¨n«nsöv ImWn¨v ]cmXnbpambn kpµc\pw IpSpw_hpw tImSXnsb kao]n¨p. XpSÀ¶v \S¯nb At\zjW¯nemWv XpI cmaIrjvW³ ]n³hen¨Xmbn _m¦ptcJIfn IsI¯nbXv. C¡mcyw NqIn¡m«n taÂtImSXnbn kpµc³ A¸o lÀPn t_m[n¸ns¨¦nepw AXv XÅpIbmbncp¶p. HSphn sslt¡mSXnsb kao]n¨ kpµct\mSv IngvtImSXnbn dnhyplÀPn t_m[n¸n¡m\mWv D¯chpImbXv. Cu tIknsâ hmZw tI« PUvPn at\mlÀ InWn lÀPn¡mcsâ Bhiyw A\phZn¡m\mhnsöv IsI¯nsb¦nepw lÀPn¡mc\v \oXn e`n¡Wsa¦n am\pjnI ]cnKW\ \ÂIWsa¶v IImWv \ymbm[n]sâ ImcpWylkvXw kpµc\pw IpSpw_¯ntebv¡pw \o«nbXv. hn[n¡v D¯cw \ÂIphm³ Bcpansöv t_m[ys¸« PUvPn lÀPn¡mc\v \oXn e`n¡m³ Xsâ kz´w JP\mhv Xpdt¡In h¶p. Ft¶m hn[n¨ \jvS]cnlmcXpI tImSXn Poh\¡mcpsS ssI¸ng aqew A\p`hn¡m³ e`n¡m¯Xv  ImcWw \oXn \ntj[n¡s¸ScpsX¶v IcpXnbmWv \ymbm[n]sâ \S]Sn. \oXnbpsS Bizmkw kpµc\pw IpSpw_¯n\pw {]Xo£n¡m¯ Hc\p`hambn amdn. C\nbpw C¯cw Ddhhäm¯  ImcpWyhÀj¯n\mbn \ap¡v Im¯ncn¡mw.

Compounded Case, Harmless Accused And Witnesses,

but a Headache to Courts

(By K. Sankaran Nampoothiri, Advocate, Harippad)

With the introduction and effective implementation of The Legal Services Authorities Act 1987, in Kerala, it has become the order of the day for all the courts especially lower criminal courts to refer cases which are compoundable to Lok Adalat for its settlement and disposal. Compoundable offences can be settled or compounded either in courts or in Lok Adalats as per Section 320 of Cr. P.C. and Sections 19 clause 5 and 20 of The Legal Services Authorities Act. Wherever be the forum of settlement for disposal, it is inevitable to hear both the parties, i.e. the victim and the accused. Be it before the court under Section 320 of Cr. P.C. or before the Lok Adalats under Section 20 of The Legal Service Authorities Act, the court or the Adalat has to be guided by the principles of justice, equity, fair play and other legal principles, i.e. theexpedition to compromise or settlement of cases should not be at the cost of justice.

But if a case involves offence under Section 379 of IPC, where the value of the property does not exceed Rs.250/-, generally, as per section 320(2) of Cr. P.C. the court can give permission to compromise the case.

But in the following circumstance, the above offence cannot be allowed to be compounded either before the court or before the Lok Adalats.

As per Section 379 of IPC, whoever commits theft shall be punished. But theft as defined under Section 378 of IPC stands as: "whoever, intending to take dishonestly any movable property out of the possession of any person without the person's consent, moves that property in order to such taking is said to commit theft."

So from the above definition, it is clear that if a person dishonestly moves a movable property, irrespective of whether he is the owner or stranger, from the possession of another person who is in possession of it, the offence under section 379 of IPC will attract. In strict sense of the definition of theft as per section 378 of IPC, even if the property is moved by the owner from the possession of another person, to whom the possession was validly given, without his consent the offence will stand i.e., the offence will stand even against the owner of the property.

For compounding the offence in the above circumstance, the court has to resort to section 320(2) of Cr. P.C. But 320 (2) of Cr. P.C. states as: "the offence punishable under the sections of the IPC specified in the first two columns of the table next following may, with the permission of the court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the 3rd column of that table.

As per the first two columns of the above section, theft, where the value of the property does not exceed Rs.250/-, under section 379 of IPC can be compounded. But in the 3rd column of the above mentioned table it is stated that "the owner of the property stolen" can compound the offence.

So in the above mentioned circumstances, if the court permits to compound the offence, the owner of the property, who is accused of the offence, himself can compound it sans the victim i.e. the possessor. The victim of the offence will have no role to play, but he is being made a mute spectator. The accused can compound the offence against himself.

In turn, even if the victim expresses his willingness to compound the offence, as the court has no power to do anything in strict derogation of a crystal clear provision in the 3rd column of the table mentioned in Section 320(2) of Cr. P.C, the court has no other way but to follow the tedious and time consuming task of evidence taking.

The Court can be saved from the above dilemma only by addition ofwords "or possessor" after the word 'owner' in the column 3rd of the table in section 320(2) of Cr. P.C. through an amendment of the code.

UNIFORM CIVIL CODE - STILL A DEAD LETTER?

(By Pramod Krishnan, Advocate, Tellicherry)

At present there is a renewed demand for a Uniform Civil Code since the Chief Justice of India V.N. Khare has made his remarks while passing his judgment in the Christian Bequests case (John Vallamattom v. Union of India, 2003 (3) KLT 66 (SC) = AIR 2003 SC 2902).

First of all what is the root of the Uniform Civil Code? The answer is simple. It emanates from our Constitution. Part IV- Art.36 to 51 contains the Directive Principles of State Policy. Art.44 of the Indian Constitution requires the State to secure for the citizens a uniform civil code through out the territory of India. However it is only a directive principle of state policy, therefore it cannot be enforced in a court of law as in the case of fundamental rights enshrined in Part III of our Constitution. So it is the prerogative of the State to introduce Uniform Civil Code.

India has already a Uniform Civil Code-reputedly one of the best in the world. Codification of civil laws means placing all civil laws affecting the relationships between private citizens on statutory basis. India's codification began in the mid-19th century and continues this day. This includes the Contract Act, 1872, the Transfer of Property Act, 1882, the Evidence Act, 1872, The Civil Procedure Code, 1908, the Companies Act, 1956 etc. The codification of Criminal Law included the Indian Penal Code, 1860 and the Criminal Procedure Code, 1898 (now 1973).

So the controversy is really about uniform personal laws. At present the Hindus, Muslims, Christians etc. in India are governed by their respective personal laws. Whether this has to be codified is the crux of the present controversy.

Even during the debate in the Constituent Assembly there was a wide spread opposition to the incorporation of Art.44 (Art.35 in the Draft Constitution) particularly from the Muslim members of the Assembly (CAD (Constituent Assembly Debates) Book No. 2 Volume III pp. 538,552). Naziruddin Ahmed, Mohd. Ismail Sahib, Pocker Sahib Bahadur and Hussain Sahib etc, made a scathing attack on the idea of having a Uniform Civil Code in India on the grounds that the right to follow personal law is part of the way of life of those people who are following such laws, that is part of their religion and part of their culture, that would lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country and that a country so diverse it is not possible to have uniformity of civil law. However, one of the most illustrious members in the Assembly, K.M. Munshi strongly felt that if the personal law of inheritance, succession etc. is considered as part of the religion, the equality of women can never be achieved (CAD Vol. Ill p. 548).

The Chairman of the Drafting Committee Dr. B.R. Ambedkar stated that in our country there is practically a civil code, uniform in its content and applicable to the whole country. He cited many instances like uniform civil law, transfer of property and Negotiable Instruments Act, which are applicable to one and all. However he conceded that the only province, the civil law has not been able to invade so far is marriage and succession. He also dispelled the arguments of certain Muslim members that die Muslim law is immutable and uniform throughout India. He cited the example of the North-west Frontier province, which was not subject to the Shariat law prior to 1935 and until then followed the Hindu law in the matter of succession etc. (CAD Vol. Ill p. 550). Similarly in the North Malabar region of Kerala, the Marumakkatayam law applied to all, not only to Hindus but also to Muslims. Until 1937, in the rest of India, the various parts, such as the united provinces, the central provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law of Succession.

Some of the learned members however predicted that a stage would come when the civil code would be uniform and stated that the power given to the State to make the civil code uniform is in advance of the time (CAD Vol. VIII p. 542). Dr. Ambedkar also opined that it is perfectly possible that the future Parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the code may be purely voluntary (CAD Vol. VII p. 551). The foregoing discussion clearly establishes that the framers of the constitution were aware of the gender injustice and sexual inequality of women and they incorporated Art.44 of the Constitution hoping that it would be introduced in the future at the appropriate time. It is clearly unfortunate that even after 56 years of independence, the State did not find it necessary to make any efforts to honour this constitutional commitment.

Now coming to the question whether Part III of the Constitution (Fundamental right) applies to personal laws, Gajendragadkar J. observed in State of Bombay v. Narasu Appa Mali (AIR 1952 Bombay 84) as follows:- "The Constitution of India itself recognizes the existence of these personal laws in terms when it deals with the topic falling under personal law in item 5 in the concurrent list-List III. This item deals with the topics of marriage and divorce; infants and minors; adoption; will, intestacy and succession; joint family and partition; all matters in respect of which parties injudicial proceedings were immediately before the commencement of this constitution subject to their personal law. Thus it is competent either to the State or the Union Legislature to legislate on topics falling within the purview of the personal law and yet the expression "personal law" is not used in Art. 13, because, in my opinion the framers of the constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the Constitution and so they did not intend to include these personal laws within the definition of the expression "laws in force". So according to the learned Judge personal laws were outside the ambit of Part III of the Constitution.

The judiciary in India has taken note of the injustice done to the women in the matters of many personal laws. It has been voicing its concern through few judgments, indicating the necessity to have uniformity in personal matters of all the citizens. The Supreme Court in its landmark judgment in Mohd. Ahmed Khan v. Shah Bano Begum (A.I.R 1985 SC 945), pertaining to the liability of a Muslim husband to maintain his divorced wife beyond "iddat" period, who is not able to maintain herself, held that Section 125 of the Code of Criminal Procedure which imposes such a obligation on all husbands in secular in character and is applicable to all religions. The Chief Justice Y.V. Chandrachud held:

"It is also a matter of regret that Art.44 of our Constitution has remained a dead letter......There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a Uniform Civil Code for the citizens of the country and unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. "The court has also in para 33 of the above judgment referred to Dr. Tahir Mahamood's book 'Muslim Personal Law' in which the author had made a powerful plea for framing a Uniform Civil Code for all citizens of India. It may be recalled that the Shah Bano 's case paved the way for introducing "The Muslim Women (Protection of Rights on Divorce) Act, 1986.

In Sarala Mudgal v. Union of India (AIR 1995 SC 1531) Kuldip Singh, J. held-" the respective personal laws permitted by the British to govern the matters relating to inheritance, marriages etc. only under the regulations of 1781 framed by Warren Hastings. The legislation - not the religion - being the authority under which personal law was permitted to operate and is continuing to operate, the same may be superceded/supplemented by introducing, a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The successive governments till date have been wholly remiss in their duty of implementing the constitutional mandate under Art.44." Therefore the Supreme Court requested the Government of India, through the Prime Minister of the country to have a fresh look at Art.44 of the Constitution of India and "endeavour to secure for the citizens a Uniform civil code through out the territory of India".

The Supreme Court went a step backward in its earlier stand in Lily Thomas v. Union of India (AIR 2000 SC 1650) wherein a Division Bench of the Supreme Court held that the court had not issued any direction for codification of common civil code in Sarla Mudgal v. Union of India. The court referred to judgment in Ahmedabad Women Action Group v. Union of India (AIR 1997 SC 3614) where it was held that the observation made by the Judges in the Sarla Mudgal case pertaining to the desirability of enacting the uniform civil code were made only incidentally.

But the Apex Court has once again clarified its stand on Art.44 in John Vallamattom v. Union of India (2003 (3) KLT 66 (SC) = AIR 2003 SC 2902), wherein the court held that it is a matter of regret that Article 44 of the Constitution has not given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies. A few words in the said decision rendered by Chief Justice V.N. Khare is quoted here "Art.44 provides that the State shall endeavour to secure for the citizens a Uniform Civil Code through out the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Art.25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Arts.25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation". The other two Judges of the bench, Justice S.B. Sinha and Justice AR. Lakshmanan also agreed with the Chief Justice.

Right from Champakam Dorairajan decided in 1951 till the latest John Vallamattom's case in 2003 the Supreme Court has been interpreting the Directive Principles in their widest sense so as to make them judicially enforceable. The judiciary has by and large served as an agent of positive change in this regard.

There is a misunderstanding and misconception in the minds of intellectuals and the general members of minority groups particularly the Muslims that the Uniform Civil Code is forcing the Hindu personal law on other religions. It is a wrong notion. The best contents from the personal laws of each religions, viz- Hinduism, Christianity, Islam etc. will have to be taken when a draft Uniform Civil Code is drawn up. Contentious issues like succession, marriage, divorce, custody of children etc. will have to be sorted out after discussion with every community in the country. It will be more easier if the draft is accepted by all religious denominations in India before it is made a law in the Parliament.

Looking back to 1955-56 when the Hindu Code was promulgated in the Parliament, there was wide spread opposition from the Hindu fundamentalists who voiced their strong opposition and tried to scuttle the Bill. Even the then President Dr. Rajendra Prasad disagreed with the Prime Minister Jawaharlal Nehru with the Hindu Code. Nehru displayed great political will in passing the Hindu Code in Parliament. At that time there was polygamy amongst Hindus. There were even retrograde practices like Sati and many other customary practices that were opposed to good conscience, equity and thereby affecting gender justice. Hence the passing of the Hindu Code is a case in point in achieving to a great extent if not fully in advancing gender justice, departing from fundamentalists religious practices.

Of the primary sources of law, the most important and effective source is the legislation i.e., the law made by the legislature generally. Therefore so long as the State does not make the necessary legislation to implement the directive principles, the implementation of which is possible at this juncture due to the all-round development of the country, mere positive interpretation by the judiciary would not be sufficient to enforce them. The directive principles were never meant to remain as such in perpetuity. The mandate of the Constitution is that they must be implemented as and when the time is ripe politically, economically and socially.

It is long overdue for a legislation to be enacted in the Parliament considering the question of gender equality. So Parliament should consider this matter seriously and take necessary steps to implement the directions given by the Supreme Court of India in John Vallamattom's Case by framing a Uniform Civil Code in the country so that gender justice can be achieved.

_________________________________________________________________________

[Para 5 to 7 excerpts from the book Judicial Activisim in India, 1 st Edition by Dr. G.B. Reddy, Gogia Law Agency (Hyderabad).

MRS. & MR. JOHN MUST WAIT

(By M.R. Hariraj, Advocate, Ernakulam)

"Orders are often issued under Art.226 as if emanating from a slot machine at the drop of a coin and pulling of a handle. This must stop".1

The lament of the then Chief Justice appears to have fallen on deaf ears. Partly due to the mounting burden of longer lists, partly due to lack of proper assistance for which we at the Bar must take the blame, orders are issued by the High Court under its extra ordinary jurisdiction just for the asking, at times without regard to even the most fundamental principles governing exercise of the said jurisdiction. With respect, the judgment in John Roji v. Marriage Officer2is a typical instance of 'hurried justice' resulting in "buried justice'.

The petitioners in the said case, having celebrated their marriage according to church ceremonies, applied for registration of their marriage under S. 15 of the Special Marriage Act, 1954, (hereinafter referred to as 'the Act'). The application was made because the marriage certificate issued by the Church was not accepted by the Consulates for the purpose of VISA. Marriage Officer would issue the certificate, but only after the statutory notice period and after making sure that there is no objection. But the petitioners had no time to wait. They wanted the certificate urgently and hence prayed for a mandamus to dispense with the statutory notice and issuance of the certificate.

Apparently on the first day of posting itself, when the case came up for admission,3 the Honourable Court allowed the Writ Petition. The reasoning is that Church conducts the marriages only after proper scrutiny. It is directed that the Marriage Officer shall issue the certificate after obtaining sworn statements from the petitioners and registering the marriage. The judgment further provides that after such issuance the Marriage Officer may wait for objections for the statutory period and if any valid objection is there, he may recall the order. On such order being issued petitioners are directed to surrender the original certificate.

It is submitted that the judgment is totally wrong and beyond the jurisdiction of the Honourable High Court. Mandamus is issued in this case against the express statutory provisions.

Chapter III of the Act deals with Registration of marriages celebrated. S. 16 laying down the procedure for registration reads:

"Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within that period, shall, if satisfied that all the conditions mentioned in Section 15 are fulfilled, enter a certificate of the marriage in Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses", (emphasis supplied)

It cannot be gainsaid that the notice period of thirty days, as also hearing the objections are mandatory statutory preconditions to registration. In case of solemnisation of marriage under the Act also, similar words are used by the Legislature. Solemnising the marriage without such a notice makes the Marriage Officer criminally liable under S.46 of the Act.

The Honourable High Court does not have a jurisdiction to issue a direction against law. This position is settled beyond any doubt. It has been held:

"Under the constitution Mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of a legal duty by the party againstwhom the mandamus is sought... But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law”4

In Union of India v. Kirloskar Pneumatic Co. Ltd.,5 the Honourable Supreme Court observed:

"The power conferred by Arts.226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law ".

It was further held that:

"We cannot imagine anything more destructive to the rule of law than a direction by the court to disobey the laws".6

Humanitarian or equitable considerations also cannot be sufficient ground to ignore law and mandate its violation.

"Consideration of equity cannot prevail and do not permit a High Court to pass an order contrary to the law "7

Courts are bound to render justice in accordance with law. True we do find at times law and justice are distant neighbours. That is no reason to ignore law. If law is unjust, capricious, and arbitrary, there may be good ground to strike them down as unconstitutional. If permissible, they can be read down to fit in to the constitutional mould. But it is impermissible for the court to ignore law or to make law. To quote Justice Holms of the Supreme Court of the United States of America,

"... Judges must legislate, but they can do so only interstitially - they are confined to from molar to molecular motion "8

The judgment not only ignores the existing statutory provisions, but also ventures to add on to the statute a procedure which was never contemplated by the legislature. The Marriage Officer has no power under the statute to recall the certificate once issued. He is permitted to correct "any error in the form or substance of any entry in the Marriage Certificate Book " as per S.49 of the Act. The said provision cannot be stretched to include a power to recall or cancel a certificate.

Further, the Honourable High Court appear to have overlooked the provision in the Act dealing with a situation where a registration is made in contravention of any conditions specifiedin clauses (a) to (e) of S. 15. Under S. 24(2) of the Act, a declaration can be made that registration of such marriage is of "no effect". The jurisdiction for such a declaration is with the District Court as per S. 31 of the Act. In a bid to cater to the urgency of the newly wed, the Honourable High Court has conferred on the Marriage Officer, the power and jurisdiction otherwise vested in the District Court.

The power to review can only be conferred by statute and in the absence of an enabling provision, there cannot be a direction to exercise such a jurisdiction.9 Court cannot by its fiat create a non-existent jurisdiction.10

It may be noted that the Honourable Court has issued mandamus believing that Church Marriages are always flawless and done after scrutiny. The emigration authorities of other nations do not appear to be naive enough to have the same belief. It is a matter to be seen how they would accept a certificate issued by the Marriage Officer without the statutory procedure. If the church could be so believed with closed eyes, why are the emigration authorities reluctant to accept their certificate? If we reach a stage where the certificate issued by the Marriage Officer is also not acceptable to the emigration authorities, whose certificate will we have to produce to prove the marriage?

Viewed in this angle, does not the ruling do the general public more harm than good? Was it logical to compromise the executive's caution mandated by legislative wisdom on the ground of individual urgency?

Was it not better to require Mrs. & Mr. John Roji to wait?

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Foot Note:

1. Jayachandran v. State of Kerala, 2002 (3) KLT 125.

2. 2004 (1) KLT 687

3. I drew this inference because the judgment is dated 5.1.2004, the date on which the High Court reopened after the Christmas holidays and the case number (WP (C) 93/2004) indicates that it was filed on or after 1.1.2004.

4. State of U. P. v. Harish Chandra, (1996) 9 SCC 309; See also Chingelput Bottlers v. Majestic Bottling Co., (1984) 3 SCC 258; U.P. Sales Tax Service Association v. Taxation Bar Association, (1995) 5 SCC 716; CBSE v. Sunil Kumar, 1998 (1) KLT 929 (SC).

5. (1996) 4 SCC 453.

6. APCME Society v. Government of Andhra Pradesh, AIR 1986 SC 1490.

7. Council for Indian School Certificate Examination v. Isha Mittal and Anr. (2000) 7 SCC 512; State of Tamil Nadu v. St. Joseph's Teachers' Training Institute, (1991) 3 SCC 87.

8. South Pacific v. Jensen, 244 US 205 (1917).

9. Chiranjilal Sahailal Goenka v. Jasjit Singh, (1993) 2 SCC 507; Sivakumar v. Sreekumar 2002 (2) KLT 354 (DB).

10. A.R.Anthulayv.S.Nayak,(1988) 2 SCC 602.