C´y³ \oXn-\ymb hyh-Øbv¡v
XmÂIm-enI aPn-kvt{S«v tImS-Xn-IÄ Hcp shÃp-hnfn

(ByFw.-F-³ a·-Y³, AUz-t¡äv, `mc-Xob A`n-`m-j-I- ]-co-£¯v kwØm\ kanXn AwKw)

kwØm\ kÀ¡mcnsâ 13.05.2014se 94/2014þmw \¼À Kkäv hnÚm-]\ {]Imcw kwØm-\¯v 27 Xmev¡m-enI aPn-kvt{Säv tImS-Xn-IÄ Øm]n-¡p-hm³ Xocp-am-\n-¡p-Ibpw Ah-bn ]e tImS-Xn-Ifpw {]hÀ¯\w XpS-§p-I-bp-ap-Im-bn. 13þmw [\-Imcy I½o-j³ cmPy¯v kmbmÓ tImS-Xn-Ifpw {]tXyI tImS-Xn-Ifpw Øm]n-¡p-¶-Xn\v A\p-h-Zn-¨n-«pÅ ^Ip]-tbm-Kn-¨mWv ta ]dª XmevIm-enI tImS-Xn-IÄ Øm]n-¡p-¶-Xv. 27 XmevIm-enI tImS-Xn-Ifn 24 F®w FhnsSÃmamWv F¶Xpw Sn hnÚm-]-\-¯n ]dªn«p-Iv.

24 tImS-Xn-I-fn ]Xn-\©v F®hpw Fd-Wm-Ipfw PnÃ-bn-em-Wv. Ah-bn H¶p-t]mepw \ne-hn-epÅ tImSXn tI{µ-§-tfmSv tNÀ¶n-«-Ã-Xm-\pw. \ne-hn-epÅ tIkp-I-Ä F{Xbpw s]s«¶v XoÀ¸v Iev]n¨v sI«n InS-¡p¶ tIkp-I-fpsS F®w Ipd¨v s]mXp P\-§-fpsS  _p²n-ap-«p-IÄ Ipdbv¡pI F¶p-Å-XmWv {]Jym-]nX e£yw. F¶m ]pXp-Xmbn PnÃ-bpsS hnhn[ `mK-§-fn-embnØm]n-¨n-«pÅ Xmev¡m-enI aPn-kvt{Säv tImS-Xn-IÄ ta ]dª {]Jym-]nX e£ywssIh-cn-¡p-¶-Xn\v ]cym-]vX-a-öpw adn¨v `cWLS\ hncp-²hpw ISp¯ a\p-jym-h-ImiewL-\-§Ä¡v  Imc-W-am-Ip-¶-Xpam-Wv. F´psImImWv \ne-hn-epÅ Øncw tImS-Xn-I-tfmSv tNÀ¶v ta ]dª tImS-Xn-IÄ Øm]n-¡m-¯Xv F¶p-Å-Xns\ kw_-Ôn¨v ta ]dª hnÚm-]\w au\w ]men-¡p-¶p. s]mXp P\-§-fpsS kuI-cymÀ°-amWv hnhn[ t]meokv tÌj-³ ]cn-[n-I-fn tImS-Xn-IÄ Øm]n-¡p-hm³ ImcWw F¶mWv A\u-tZym-KnIambn ]dªp tIÄ¡p-¶-Xv. F¶m tImS-Xn-IÄ {]tXy-In¨v {Inan-\ tImS-Xn-IÄ hnhn[ Øe-§-fnembn Øm]n-¡p-¶Xv sImIv s]mXpP\-§Ä¡v kuI-cy-t¯-¡m-tfsd km¼-¯n-I-ambpw AÃm-sXbpw IqSp-X _p²n-ap-«p-IÄ krjvSn-¡p-I-am-{X-amWv sN¿p-¶-Xv. ^e-¯n {]Jym-]nX e£yw ssIh-cn-¡p-¶-Xn\v ]Icw 13þmw [\-Imcy I½o-j³ A\p-h-Zn-¨n-«pÅ ^Insâ ZpÀhn-\n-tbmKw am{X-amWv kw`-hn-¡p-¶-Xv. Hcp {]tXyI e£yw ssIh-cn-¡p-¶-Xn\v A\p-h-Zn-¡p¶ ^Iv e£ywad¶v GsX-¦nepw hn[¯n hn\n-tbm-Kn-¡p-¶Xv ZpÀhn-\n-tbmKw am{X-am-Wv. Hmtcm tImS-Xn-IÄ  Øm]n-¡p-¶-Xn\pw Ahn-Sps¯ ASn-Øm\ kuI-cy-§Ä GÀs¸-Sp-¯p-¶-Xn\pw e£ IW-¡n\v cq]-bmWv D]-tbm-Kn-¡p-¶-Xv. \ne-hn-epÅ tImS-Xn-I-fnse ASn-Øm\ kuI-cy-§Ä hÀ²n-¸n¨pw Ah-tbmSv tNÀ¶v thW-sa-¦n IqSp-X tImS-Xn-IÄ Øm]n¨pw ssIh-cn-¡m-am-bn-cp¶ e£yw ad-¶mWv C¯-c-¯n s]mXpapX ZpÀhn-\n-tbmKw sN¿p-¶-Xv.

Xmev¡m-enI tImS-Xn-Ifpw {]tXy-In¨v Xmev¡m-enI \ymbm-[n-]³amcpw C´y³ \oXn-\ymb hyh-Øbv¡v A\p-Nn-Xhpw AXnsâ hnizm-ky-Xbv¡v If¦w DIm-¡p-¶-Xp-am-Wv.  sslt¡m-S-Xn-bpsS \nb-{´-W-¯n \S-¯-s¸-Sp¶ Fgp¯p ]co-£-bp-sSbpw CâÀhyq-hn-sâbpw ASnØm-\-¯n sXc-sª-Sp-¡-s¸-Sp¶ tbmKy-cmb \nb-a-_n-cpZ[mcn-IÄ¡v ZoÀL-Im-es¯ ]cn-io-e\w \ÂIn-b-Xn\p tij-amWv \ne-hn IogvtIm-S-Xn-I-fn ap³kn^v/aPn-kvt{Sävamcmbn \nb-a\w \ÂIp-¶-Xv. AhÀ¡v \nb-a-\-¯n\v ap³]v \ne-hn-epÅ \ymbm-[n-]³am-cpsS IqsS tImS-Xn-I-fn Ccp¯n tImSXn \S-]Sn {Ia-§-sf-¡p-dn¨v ]cn-io-e\w \ÂIp-¶p-Iv. F¶m ]pXp-Xmbn Øm]n-¨n-«pÅ Xm¡m-enI tImS-Xn-I-fn _lp`qcn-]-£-¯nepw \nb-a -_n-cp-Z-[m-cn-I-fmb tImSXn Poh-\-¡m-tcbpw aPn-kvt{Säv tImS-Xn-I-fnse F.-]n.-]n. amtcbpw BWv \ymbm-[n-]³am-cmbn \nb-an-¨n-«p-Å-Xv. CXv `c-W-L-S-\m-hn-cp-²hpw ISp¯ a\p-jym-h-Imi ewL-\-§Ä¡v Imc-W-am-Ip-¶-Xm-Wv. \ne-hn-epÅ Øncw tImS-Xn-I-fnepw ]pXp-Xmbn Øm]n-¨n-«pÅ Xm¡m-enI tImSXnIfnepw Htc-X-c-¯n-epÅ tIkp-IÄ BWv ssIImcyw sN¿p-¶-Xv. ]ns¶ F´p-sImImWv Xmev¡m-enI tImS-Xn-I-fn ]cm-Xn-¡m-c-\mtbm {]Xn-bmtbm lmP-cm-tIIn hcp-¶-h-tcmSv C¯-c-¯n-epÅ Hcp hnth-N-\-w Im«p-¶Xv F¶v hyà-a-Ã. \½psS `c-W-L-S\ A\p-im-kn-¡p¶ XpeyÀ¡v Xpey-]-cn-K-W\ F¶ auen-Im-h-Im-i-¯nsâ ewL-\-am-Wv. Øncw tImS-Xn-I-fnse \ymbm-[n-]³amsc Xnc-sª-Sp-¡p-¶-Xn\v thIn sslt¡m-SXn t\cn«v \S-¯nb Fgp¯p ]co-£-bnse aqey-\nÀ®-b-¯nse ]mI-]n-g-Isf tNmZyw sN¿p¶ tIkp-IÄ kp{]ow tImSXn hsc F¯n-\n-ev¡p-¶p F¶ ]c-amÀ°w \ap¡v hnkva-cn-¨pIqSm. Xmev¡m-enI tImS-Xn-I-fnse \ymbm-[n-]sâ ]cn-io-e-\-¡p-dthm AdnhvtISv sImtIm Pmayw \ntj-[n-bv¡-s¸t«m in£n-¡-s¸t«m PbnÂhmkw  A\p-`-hn-t¡In-h-cp¶ Hcp ]ucsâbSp¯v a\p-jym-h-Imi ewL-\-¯n\v BcmWv kam-[m\w ]d-bp-I. CXv `c-W-L-S\ A\p-im-kn-¡p¶ Hcp ]ucsâ Pohn-¡p-hm-\pÅ auen-Im-h-Im-i-¯nsâ IqSn ewL-\-am-Wv. ImcWw Pohn-¡p-hm-\pÅ Ah-Imiw F¶Xv sImIv am\y-ambpw FÃm \nb-a-]-cnc£-tbmSv IqSnbpw Pohn-¡pI F¶Xv IqSn-bmWv Dt±-in-¡p-¶-Xv. tImSXn Poh-\-¡m-tcbpw F.-]n.-]n.amtcbpw C¯-c-¯n \ymbm-[n-]³am-cmbn \nb-an-¡p-¶Xv t£{X-¯nse Ig-I-¡m-cs\ im´n-¡m-c-\mbn \nb-an-¡p-¶-Xp-t]m-setbm aqÀ¯n-bmbn {]Xn-jvTn-¡p-¶Xp t]msetbm BWv. aq¶v hÀj-¡m-e-t¯-¡mWv Xmev¡m-enI tImS-Xn-Ifpw Ahn-Sps¯ Xmev¡m-enI \ymbm-[n-]³am-tcbpw \nb-an-¡p-¶-Xv. AXv Ign-ªm AhÀ¡v hoIpw ]gb Øe-t¯¡v aS-t§-In-h-cp-¶Xpw F´v A]-lm-ky-am-Wv. Hcp Iogvt¡m-SXn \ymbm-[n-]-\n \n¶v \mw {]Xo-£n-¡p¶ \njv]-£X, hnizm-kyX taÂt¡m-S-Xn-I-tfm-SpÅ {]Xn-]-¯nbpw Hcp Xmev¡m-enI \ymbm-[n-]-\n \n¶v DIm-Ip-sa¶v \ap¡v hniz-kn-¡p-hmt\m {]Xo£n¡phmt\m Ign-bn-Ã. AXp-sImIvXs¶ Xmev¡m-enI tImS-Xn-Ifpw \ymbm-[n-]³amcpw C´y³ \oXn ]oT-§Ä¡v \ne-hn-epÅ hnizm-ky-Xbv¡v If¦w krjvSn¡pw F¶p-ÅXv XÀ¡-aä kwK-Xn-bm-Wv.

]pXp-Xmbn Øm]n-¨n-«pÅ Hmtcm tImS-Xn-I-fnepw  \ymbm-[n-]³am-cpÄs¸sS 10 Poh-\-¡m-sc-bmWv A\p-h-Zn-¨n-«p-Å-Xv. AXn ssS¸nÌv DÄs¸sS Bdv t]À 179 Znh-k-t¯¡v  IcmÀ ASn-Øm-\-¯n \nb-an-¡-s¸-Sp-¶-h-cm-Wv. \½psS tImS-Xn-I-fn Hcn-¡-se-¦nepw kµÀin-¨n-«p-Å-hÀ¡v Adnbmw F{X emL-h-t¯m-sS-bmWv sXmIn apX-ep-IÄ AhnsS kq£n-¨n-«p-Å-sX¶v.  knhn tIkp-I-fn \jvS-s¸-Sp¶ dn¡mÀUpIÄ ]p\xkwL-Sn-¸n-¡m-hp-¶-Xm-Wv. F¶m {Inan-\ tIkp-I-fnse sXmInap-X-ep-IÄ \jvS-s¸-Sp-Itbm amän ]Icw hbv¡pItbm sNbvXm-ep-Im-Ip¶ AhØ F´mWv  F¶p-ÅXv \ap¡v Adn-hp-Å-Xm-Wv. IcmÀ ASn-Øm-\-¯n tIhew 179  Znh-k-t¯¡v \nb-an-¡-s¸-Sp¶ Poh-\-¡m-cn \n¶v IqSp-X kpc-£n-XXzw \ap¡v {]Xo-£n-¨p-Iq-Sm. ]e _lp-cmjv{S I¼-\n-Ifpw Øncw Poh-\-¡msc \nb-an-¡p-¶Xpaqe-apÅ km¼-¯nI _m[yX Hgn-hm-¡p-¶-Xn\pw tPmen-IÄ F{Xbpw s]s«¶v sNbvXp XoÀ¡p-¶-Xn\pw ]pdw IcmÀ sImSp-¡m-dpIv. F¶m A¯cw \S-]-Sn-IÄ km[m-c-W-¡m-csâ Ah-km\ B{i-b-amb tImS-Xn-IÄ¡v H«pw tNÀ¶-X-Ã. tImS-Xn-bnse ¢dn-¡Â Ìm^n-s\bpw aäv Poh-\-¡m-tcbpw AhÀ¡v F´v hnZym-`ymk tbmKy-X-bp-Iv F¶ Hä- Im-c-W-¯m Ahsc \ymbm-[n-]³am-cmbn \nb-an-¡p-¶Xv s]mXp kaq-l-t¯m-SpÅ ISp¯ shÃp-hn-fn-bm-Wv. ]pXp-Xmbn Øm]n¨ ]e Xmev¡m-enI aPn-kvt{Säv  tImS-Xn-I-fnepw FÃm- Zn-h-khpw knän-§p-IÄ DIm-Im-dn-Ã. Hcp aPn-kvt{Säv BgvN-bn Ht¶m ctIm Znhkw Hcp tImS-Xn-bnepw ASp¯ Znh-k-§-fn asämcp tImSXn-bnepw \ymbm-[n-]-\mbn Ccn-t¡-In-h-cp-¶p. Hcp aPn-kvt{Säv Hmtcm Znh-khpw Hmtcm tImS-Xn-bn Ccp-¶m sI«n-In-S-¡p¶ tIkp-I-fpsS F®w Ipd-bv¡p-hm³ Ign-bp-I-bn-Ã. ^e-¯n {]Jym-]n-X-e£yw ssIh-cn-¡m³ ]pXnb Xmev¡m-enI tImS-Xn-IÄ¡v Ign-bp-I-bn-Ã. Xs¶-bp-aà kÀ¡m-dns\  {]Xn-\o-[o-I-cn-bv¡p¶ ]»n¡v t{]mkn-¡p-«-dpsS tkh\w Xmev¡m-enI tImS-Xn-I-fn FÃm Znh-khpw e`y-aÃ. X·qew Pmaym-t]-£-IÄ t]mepw FÃm Znh-khpw ]cn-K-Wn-¡p-¶-Xn\v Ign-bm¯ Ah-Ø-bm-Wv. Hcp ]»n¡v t{]mkn-Iy-«ÀXs¶ ]e Øe-§-fn-epÅ aäv aPn-kvt{Säv tImS-Xn-I-fnepw t]mIWw X·qew Hcp tImS-Xn-bn-tebpw \S-]-Sn-IÄ icnbmb coXn-bn \S-¡p-I-bn-Ã. Hcp Znhkw am{Xw aPn-kvt{Säv  DÅ tImS-Xn-I-fn aäv Znh-k-§-fn Poh-\-¡mÀ¡v bmsXm¶pw sN¿m-\n-Ãm¯ Ah-Ø-bm-Wv.  F´p-sIm-ImWv ]pXp-Xmbn Øm]n¨ tImS-Xn-IÄ PnÃ-bpsS hnhn[ `mK-§-fn A`n-`m-j-IÀ¡pw tIknse I£n-IÄ¡pw F¯n-tN-cm³ Hcp-t]mse _p²n-ap-«pÅ Øe-§-fn Øm]n-¨n-«p-ÅXv F¶Xv hyà-a-Ã. Hcp tIkv GXv tImS-Xn-bpsS A[n-Imc ]cn-[n-bn hcp¶p F¶Xv B tIkn-\m-kv]-Z-amb IrXyw GXv tImS-Xn-bpsS A[n-Im-c-]-cn-[n-bn hcp¶ t]meokv tÌj³ AXnÀ¯n-bn  kw`-hn¨p F¶-Xns\ ASn-Øm-\-s¸-Sp-¯n-bm-Wv. ]cm-Xn-¡m-c-sâbpw FXr-I-£n-bp-sSbpw hmk-Ø-e-hp-ambn AXn\v bmsXmcp _Ô-hp-an-Ã.-  Hcp t]meokv tÌj³ ]cn-[n-bn hcp-¶-hÀ B t]meokv tÌj³ ]cn-[n-bn am{Xta Ipä-IrXyw sN¿p F¶v Icp-Xm³ Ign-bn-Ã. Xs¶-bp-aà {Inan-\ tIkp-I-fn km[m-c-W- K-Xn-bn ]cm-Xn-¡m-c³ Ønc-ambn tImS-Xn-bn lmP-cm-tII Bh-iy-an-Ã. aäv tIkp-I-fn kÀ¡m-cmWv hmZn-`m-K-¯v. `qcn-]£w  tIkp-I-fnepw {]Xn-IÄ A`-n`m-j-IÀ apJm-´ncw At]-£-sIm-Sp¯p tImS-Xn-bn lmP-cm-Ip-¶-Xn \n¶v Hgn-hm-Ip-I-bmWv sN¿p-¶-Xv. ^e-¯n tIknse I£n-IÄ¡pw CXp-sImIv {]tbm-P-\-an-Ãm-Xm-Ip-¶p. kwØm-\-¯nsâ hnhn-[-`m-K-§-fn-epÅ Pbn-ep--I-fn \n¶v IÌUn{]Xn-Isf Hmtcm Ah-[n¡pw tImS-Xn-bn lmP-cm-¡p-¶-Xn\v t]meo-kn\pw _p²n-ap«v t\cn-Sp-¶p. ]e XmevIm-enI tImS-Xn-I-fnepw Øncw knänwKv CÃm-¯-Xn-\m AdÌv sN¿-s¸-Sp¶ {]Xn-Isf hnhn[ tImS-Xn-I-fn lmP-cm-t¡I_p²n-ap«v  t]meo-kp-ImÀ¡v DIm-hp-¶p. taÂt¡mS-Xn-I-fn \n¶v e`n-bv¡p¶ Pmayw Iogvt¡m-S-Xn-I-fn  \S-¸m¡pt¼mgpw A`-n-`m-j-IÀ¡pw I£n-IÄ¡pw Hcp-t]mse {]mtbm-KnI _p²n-ap-«p-IÄ A\p-`h-s¸-Sp-¶p. ^e-¯n XmevIm-enI tImS-Xn-I-fn \nb-an-¡-s¸-«n«pÅ Poh-\-¡mÀ¡v HgnsI aämÀ¡pw Imcy-amb {]tbm-P-\-anà F¶p-Å-XmWv kXyw. hmkvX-h-¯n kÀ¡mcpw _pl-am-\-s¸« sslt¡m-S-Xnbpw sNt¿-In-bn-cp-¶Xv \ne-hn-epÅ tImS-Xn-I-fpsS ASn-Øm\ kuIcyw hÀ²n-¸n-¡p-I-bm-bn-cp-¶p. thW-sa-¦n \ne-hn-ep-ff tImSXn tI{µ-§-tfmSv tNÀ¶v ]pXp-Xmbn Ønc-amb aPn-kvt{Säv  tImS-Xn-IÄ Øm]n-¡m-am-bn-cp-¶p. Aim-kv{Xo-b-amb ]cn-jvIm-c-§Ä aqew A`n-`m-j-I-tcbpw I£n-I-tfbpw t]mse tIkv ^b-ep-IÄ¡pw KXn-In-«msX tImS-Xn-I-fn \n¶v tImS-Xn-I-fn-te¡v Aeªv Xncn-tbIn hcp-¶p. tIhew aq¶v hÀj-¡m-e-t¯-¡mWv Xmev¡m-enI tImS-Xn-IÄ Øm]n-¨n-«p-Å-Xv. AXn-\Iw tam£w In«m¯ tIkv ^b-ep-Ifpw, I£n-Ifpw  hoIpw X§-fpsS ]gb emh-W-¯n-te¡v aS-t§In hcp-¶p. bmsXmcp hn[ ]T-\-§fpw  \S-¯msXbmWv kÀ¡mÀ ]pXnb tImS-Xn-IÄ Øm]n-¨n-«p-Å-Xv. Hmtcm  t]meo-kv tÌ-j-\nepw cPn-ÌÀ sN¿-s¸-Sp¶ ss{Iap-I-fpsS F®w F{X F¶p-t]mepw ]cn-tim-[n-¨n-«n-Ã.

]pXnb ]cn-jvI-c-W-§Ä aqew Ipd¨v A`n`m-j-IÀ¡v C¯-c-¯n-epÅ GsX-¦nepw tImS-Xn-I-fn tI{µo-I-cn¨v {]mIvSokv sNt¿In-h-cp-¶p. CXv Ah-cpsS `mhnsb {]Xn-Iq-e-ambn _m[n-¡p-sa-¶p-ÅXv XÀ¡-aä kwK-Xn-bm-Wv. Zqsc-bpÅ ]pXp-Xmbn Øm]n-¨n-«pÅ tImS-Xn-I-fnse tIkv \S-¯n-b-Xn\p tijw PnÃ-tI-{µ-§fntebpw aäv Ønc tImS-Xn-I-fnepw h¶v tIkv \S-¯p-hm³ Ign-bmsX hcpw. X·qew C¯cw A`n-`m-j-IÀ¡v knhn tIkp-IÄ ssIImcyw sN¿p-¶-Xn-\pÅ Ah-k-chpw \jvS-am-Ip-¶p. tIc-f-¯nsâ `q{]Ir-Xn, `qhn-kvXrXn bm{X-ku-Icyw F¶nh aäv kwØm-\-§-fp-ambn Xmc-Xayw  sN¿p-t¼mÄ \½psS tImS-Xn-IÄ ]e Øe-§-fn-embn Øm]n-¡p-¶Xv H«pw A`n-Im-ay-a-Ã. XmevIm-enI tImSXn-I-fnse aPn-kvt{SävamÀ A\p-`h]cn-N-b-an-Ãm-¯-hcpw Xmev¡m-en-I-ambn \nb-an-¡-s¸-Sp-¶-h-cp-am-b-Xn-\m C¯cw tImS-Xn-I-fn t]meo-kp-ImÀ ta[m-hnXzw {]I-Sn-¸n-¡p-¶-Xn-\pw, aPn-kvt{S-äpw, t]meokpw Ahn-Sps¯ Ipd¨v A`n-`m-j-Icpw DÄs¸-Sp¶ Hcp Ahn-ip² Iq«-sI-«n\v hsc CXv Imc-W-am-Ipw. F´m-bmepw Ime-an-{Xbpw \½psS \oXn-]o-T-§Ä Im¯p-kq-£n¨ \njv]-£-X, hnizm-kyX Ch \ne \nÀ¯n apt¶m-«p-sImIp t]mIp-¶-Xn\v XmevIm-enI tImS-Xn-IÄ Hcp shÃp-hn-fn-bm-Wv. hkvXp-X-IÄ  C§s\ Bbn-cns¡ tI{µ-kÀ¡mÀ A\p-h-Zn¨ ^Iv ZpÀhn-\n-tbmKw sN¿m³ Ignªp F¶-sXm-gn-¨m BÀ¡p-thIn AsÃ-¦n F´n\p thIn-bmWv Cu A\m-hiy ]cn-jvIm-c-§Ä F¶Xpw hyà-a-Ã. Hcp ^Iv D]-tbm-Kn-¡p-¶-Xn\v thIn H«pw Imcy-hn-Nmcw \S-¯msX kÀ¡mÀ kzoI-cn¨ \S-]-Sn-IÄ¡v _lp-am-\-s¸« sslt¡m-S-Xnbpw A\-phmZw \ÂIn-bn-cn-¡p¶p F¶Xv ZpJ-I-c-am-Wv. hfsc \nÀ`m-Ky-I-c-amb Hcp kwKXn _Ô-s¸-«-h-cmcpw Xs¶ CXv  IInà AsÃ-¦n C¶m-«p-Im-c-Ãm-sb¶v \Sn-¡p-¶p. tImS-Xn-Isf kw_-Ôn¨v ]d-bp-t¼mÄ hnizmkw AXtà FÃmw. AXp-sImIvXs¶ _Ô-s¸-«-hÀ¡v B hnizm-k-¯n\v ]m¼³]m-e-¯nsâ Dd¸v hcp-t¯I_m[y-X-bp-Iv. Cu sshInb thf-bn-se-¦nepw _Ô-s¸-«-h-cn \n¶v A¯-c-¯nepÅ Hcp \S-]Sn s]mXp-k-aqlw {]Xo-£n-¡p-¶p.

Collegium in Collation with Executive’s Frailty

(By S. Sanal Kumar, Advocate, High Court of Kerala)

Essential attributes of State are Government, Territory, Sovereign and Population. Sovereign power, with the evolutions of State, got distributed in Executive, Judiciary and Legislature. Each component acted as countervailing forces against the other to prevent accumulation of Sovereign power in one entity. ‘Separation of Power’ of Montesquieu lends credence to this system with a political philosophy contained in his ‘Spirit of Laws’. We, with rich heritage of this philosophy from the British, engrafted in our Constitution, this remarkable barriers of governance or, more precisely the field of play of three pillars of governance. The ‘basic structure theory’ churned out by the Constitutional Court has given judiciary an insulated status by coining ‘independence of judiciary’ as one of the several attributes of ‘basic structure of Constitution’.

With the doling out of Sovereign Power in three limbs, the election of functionaries to man the respective realm became inevitable. Civilised democracies elect by voting their Legislators to sit in the Legislature. The Legislators, in turn, choose the Executive (Council of Ministers). The Executive, with consultations of Members of Judiciary, selects the Judiciary. In the entire exercise being carried out in this way, the Will of the People is reflected in the crowning process of the three limbs of Sovereign. Consciously this paramountcy of Will of the People is given recognition in the Indian Constitution. Articles 124 and 217 of the Constitution speak about the appointment of Judges of the Supreme Court and High Courts respectively. Supreme Court Judge was conceived to be appointed by the President (Executive Head) in consultation with such Judges of the Supreme Court and of the High Courts as the President may deem necessary. But in the case of appointment of Supreme Court Judge, there must be mandatory consultation with Chief Justice of India. Likewise, in the appointment of Judges of various High Courts, the President shall consult the Chief Justice of India, the Chief Justice of the concerned High Court and the Governor of the State. With the commencement of the Constitution, this Will of the People worked efficaciously through appointment procedure moulded by the Memorandum of Procedure. The Executive, through the Ministry of Home Affairs, often initiated the process of appointment by nomination and elicited the views of the Chief Justice of India in the matter of appointment of Supreme Court Judges. Sometimes the nomination came from the Chief Justice of India, which also gets approbation at the Executive Head. The politicians at the top echelons of Executives on those days, with their impeccable integrity and uncompromising values and ethos on constitutionalism and democracy, never went astray in their commitment to people of India to make independent India a Role Model to emulate for other Nations. Persons with proven efficiency, expertise in law, legal acumen and, above all, with utmost rectitude, were chosen to the constitutional Courts. In turn, these gems on Judiciary contributed immensely to the People of India by giving flesh and blood to the Constitution by their interpretations to various Articles of Constitution. Full reflection of the political philosophy encapsulated in the Preamble to the Constitution found enlarged in its scope and amplitude in every exercise of interpretation. The development of Constitutional Law in India is from the brains of these hand-picked lot of our politicians, who imbibed values and ethos from national movements. The primacy of Executive in the selection process was never frowned up on as the repository of power of appointment, i.e. the Executive Heads, could not go wrong.

‘The Separation of Power’ doctrine started showing signs of malaise, when Prime Minister Indira Gandhi was turning totalitarian. For consolidation of power, Mrs. Gandhi started aggrandizement up on Judiciary. On June 12, 1975 election of Indira Gandhi was set aside by the Allahabad High Court and she could continue as Prime Minister based on stay granted by the Supreme Court with condition that she shall not take part in deliberations in Parliament and vote. In the historic ADM Jabalpore case, Justice H.R. Khanna delivered adissenting judgment holding that there cannot be any suspension of fundamental rights during the Proclamation of Emergency and a writ of Habeas Corpus will lie against illegal detention. This minority judgment was not to the liking of Mrs. Gandhi for which Justice Khanna had to heavily pay for. Though by convention, constitutional courtesy and hitherto followed cordiality of Judiciary and Executive, Justice Khanna who wasthe senior most Judge had to be elevated as Chief Justice of India as per the norms, of seniority, President on the advice of council of Ministers headed by Mrs. Gandhi, appointed Justice M.H. Beg as the Chief Justice of India in January 1977. That was an onslaught on the cordiality and camaraderie of two great organs of State - the Judiciary and Executive. The consultations envisaged in the Constitution became a customary nod of servility. Independence of judiciary was turning to be interdependence and imposed captivity. People of India became sceptical at this Executive hegemony. The electoral rout of Mrs. Gandhi in 1977 and period of two years thereafter, witnessed a damage control exercise on the Constitution by the Janata Government.

When Mrs. Gandhi voted to power in January 1980, the euphoria of Constitutional reforms and restructuring came to an end. Mrs. Gandhi’s majority in the House of People was 2/3rd which was enough to impose upon all for further arrogation of all powers to herself. The power of appointment of Judges came for deliberation directly in S.P. Gupta Case, popularly called the Judge’s Transfer case. India witnessed a resurgent and retaliatory Indira Gandhi in an out-and-out vindictive mood. She invoked Article 356 to dismiss the Janata Party ledState Governments in one lot, which enjoyed majority. The blatant misuse of Article 356 did not augur well for other strong limbs of State. Single Party Rule with Single Person as a totalitarian, with prospects of impeachment, was enough for holding Judiciary under leash. As expected, in S.P. Gupta case, the Supreme Court on 30.12.1981 upheld the primacy of Executive in the matter of appointment of Judges to Constitutional Courts. It was further held that the opinion of Chief Justice of India can be brushed aside for ‘cogent reasons’. Thus the Executive, manned by Single Party Rule, resisted the unspoken desire of the Judiciary to arrogate to itself the power of appointment.

But by late 90’s, scenario changed when India was heading for fractured verdicts and minority governments. Politicians got vulnerable and timid as innumerable scandals involving them erupted. The Jain Hawala case, which originated in 1991, brought under its net top political leaders of the country, cutting across political barriers. Prominent leaders like V.C. Sukla, Shiva Sanker, L.K. Advani, Balram Jhakkar and Madanlal Khurana, all came under the unsavoury allegations of periodical payments by way of bribery. The prosecution proceedings made themsusceptible and imbecile. The minority Government led by P.V. Narasimha Rao was not an imposing intimidation for the Judiciary. The Executive was apparently weak with frailties of corruption charges and it was more preoccupied with mobilisation of its energy towards bringing in economic reforms. The entire political spectrum, including Ruling and Opposition Party leaders, came under teeth of prosecution. Judiciary acted with retrieved might and asserted its supremacy and primacy in the matter of appointment of Judges. The Second Judges Case, Supreme Court Advocates-on-Record Association v. Union of India, was decided in 6.10.93 inthe backdrop of these volatile political situation.

The political spectrum again emaciated by further revelations of corruption. The J.M.M. Bribery case came as thunder bolt to P.V. Narasimha Rao. C.B.I. questioned Narasimha Rao on 4.9.96 and he was charge sheeted. On 16.1.96, the Supreme Court ordered to set up Special Hawala Court to try the hawala offenders. When the entire political pantheon was in the labyrinth of further controversies and corruption charges, the Supreme Court evolved the ‘Collegium System’ of appointment of Judges in In Re Special Reference on 28.10.98. The Judiciary usurped the power of appointment completely to the exclusion of Executive. The political ambience was conducive for the Judiciary as the period was marked by political instability with country going for snap polls, one after the other. A fragmented mandate made the Executive too weak to be trampled up on by Judiciary. The role of the Executive was reduced to a ritualistic giving of stamp of approval.

With the Judiciary assuming role of appointment, the indirect deference to the Will of the People slowly waned. Widespread complaints of nepotism, systematic exclusion, emergence of hereditary rights to appointment and, adding woes, plummeting deterioration in the quality of adjudication were the tangible results of Collegium System. A larger section of the Bar felt alienation in appointment process, where scions from incumbent or retired Judges were found as favoured lot. Judgments which were rendered by Judges who imbibed constitutional and political philosophy of the Nation during pre-collegium era were atop on its perspectives. The post-collegium era is predominantly marked by ‘perception driven judgments’. No legal classics like, A.K. Gopalan Case, Kesavanandan Bharathi Case, Maneka Gandhi Case or Indra Sawhney Case (Mandal case) and the like sprang up in post-collegium era. The remedy proved worse than the disease.

By the beginning of this decade, there emerged unanimity and broad consensus among political parties for contriving a mechanism, where there is greater or equal say for Executive in the matter of appointment of Judges of Constitutional Courts. The system prevailing in developed democracies are pointer to a greater participation of polity and civil society in the appointment of Judges of Constitutional Courts. In the USA, the Judges are appointed under Article III of its Constitution to the Supreme Court, Federal Courts and District Courts by the President with approval of Senate. Apart from impeachment, there is another mechanism for removal of the Judge by issuance of a writ of Scire facias for not maintaining “good behaviour”. In the U.K., from 2006, the appointment of Judges is made by a 15 member Judicial Appointment Commission. In the 15 member Commission, only five Judges are from the higher judiciary.

2 members are from Subordinate Judiciary and Tribunal. The remaining 8 members are from the Civil Society and Government. Australia makes another example for participatory and consultative process in the appointment of Judges where appointments are made by Governor General-in-Council. All these systems ensure transparent appointment process where nominations are made, objections are called for and fool proof comparative assessment of merits is done in full glare of public attention. In India, now, the Constitution 121st Amendment provides for Constitution of N.J.A.C. (National Judicial Appointment Commission) to replace the Collegium System of Appointment. National Judicial Commission Act has come into force on 13.4.2015 with the Notification of Commencement. Now the vires of the Constitution Amendment and the N.J.A.C. Act are under challenge before the Apex Court.

The passing of Constitution Amendment and the N.J.A.C. Act shows the reassertion of Executive of its supremacy. The Bills were passed with a near unanimity. The instantaneous and hassle-free ratification of Constitution Amendment by almost all State Legislatures is indicative of the expression of Will of the People across the country. Unlike other Constitution Amendments, 121st Amendment required ratification by not less than 50% of the State Legislatures under Proviso to Article 368(2) of the Constitution of India. The perceived import of the saidexercise is quintessentially the expression of collective Will of the People of India, who have given unto themselves this Constitution. The People of India, in unison, demand for a change in the system of Appointment of Judges with its greater participation in the Appointment Process. People of India clamour for systemic change in the Appointment process with the desire to keep pace with the more participatory system prevailing in the civilised countries. How far the “basic structure” sword can be brandished by the Supreme Court to cut at the root of the Will of People of India? The emergence of Single Party Rule and iconographic leaders on the political spectrum will spell doom for the Judiciary in setting at naught the NJAC. Apropos to note that ‘basic structure theory’ was evolved in cases for testing vires of Constitution Amendments which were passed with notable divisions. Amendment providing for NJAC is essentially and virtually a re-enactment of the Constituent Assembly sitting again for introducing what was originally lacking in the Constitution. Adoption by Parliament and all State Legislatures by unanimity is in reality assertion by the Will of the People, who have given unto themselves their Constitution. Expression of collective Will of the People is so sacrosanct in a democracy and it cannot be lightly shattered down by coining new legal jargons or philosophies.

A SECOND WIFE IS ENTITLED TO MAINTENANCE OR NOT ?

(By Anzil Zachariah, Advocate, Pathanamthitta)

A woman gives herself to the man and takes the family life of the man. The man uses her as such. Thereafter he turns her out and pronounces that marriage is void After divorce or separation she becomes a destitute. The pertinent question here is can the husband be allowed to raise the contention of denial of a valid marriage when the second wife claims maintenance.

The aim of this paper is to analyze the present scenario and exhibit through the case laws the approach of the courts regarding maintenance provision. It is argued, in the course of the paper that a more functional and practical approach, would be a definite improvement to meet the ends of justice for neglected wives.

Ss.125 to 128 of the Code of Criminal Procedure constitute a complete Code in itself. It deals with adjudication as regards the liability to pay monthly allowance to the neglected wife and child. It also includes execution of order and the mode of execution.

S.125 of Code is "a measure of social justice “1. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife2. Neglect to maintain a wife or a child has not been made as an offence under these proceedings3. It's a law...

"...to compel a man to perform the moral obligation which he owes to society in respect of his wife and children, by providing a simple, speedy but limited relief. They seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence4."

A woman has two distinct rights for maintenance. S.125 of Cr. P.C. mentions only maintenance to a legally wedded wife unless she suffers from any of the disabilities indicated in S.25(4) of Cr. P.C. In another capacity, namely as a divorced wife, she is entitled to claim maintenance from the person of whom she was once the wife5.

The woman not having the legal status of a wife is brought within the inclusive definition of the term 'wife'. According to Explanation 'wife' "includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried". It is consistent with the objective. However, the second wife is disentitled from receiving maintenance from her husband as personal laws declare second marriage to be null and void. Marriage between the parties plays an integral part in deciding the question of maintenance. The right of a wife to maintenance is based upon the existence of the marital relations.

The personal laws applicable to the party determine the status of a wife. S.11 of the Hindu Marriage Act declares such a marriage to be illegal in the following terms:-

S.ll. Void marriages - "Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of S.5."

Clause (l)(i) of S.5 lays down, for a lawful marriage, the necessary condition that "neither party has a spouse living at the time of the marriage."

A marriage in contravention of this condition is null and void from its very inception. It is to be ignored as not existing in law. Hence a second wife is not entitled to maintenance under this provision, as she is not a legally wedded wife 6.

The sad reality is that the husbands negative the claim of the neglected wife. The husband argues and depicts her as a kept-mistress on the specious plea that he was already married. The 'Summit Court' of India affirmed those contentions in a number of cases.

First and foremost contention is that the terms- 'wife' or 'widow' in the context of marriage, maintenance etc.. is of restrictive legal character.It implies only legitimate relationships recognized by a legal mode of marriage. It does not include a relationship that is not recognized by law. Therefore the definition of wife cannot be stretched to include an abandoned mistress.

In Khemchand Om Prakash Shanna v. State of Gujarat & Anr7the Supreme Court held that the "during the subsistence of the first marriage, any second marriage is null and void" and High Court erred in granting maintenance in favour of second wife. Here applicant's first wife was alive. There has been no annulment of marriage by a decree of divorce or otherwise.

The Court held in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav8case that marriage of a woman in accordance with Hindu rites with the man having a living spouse is complete nullity in the eye of law and she is not entitled the benefit of S.125 of the Code.

In Santosh (Smt) v. Naresh Pal9 the Supreme Court declared that "unless there is a legal marriage between the parties, order under S.125 Cr. P.C. cannot be passed."

In Vimla (K) v. Veeraswamy (K)10, the husband contended that the second marriage with the applicant-wife was void on the ground that her first marriage was subsisting. The Apex Court stated that-

"The law which disentitles the second wife from receiving maintenance from her husband for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage..."

The term 'wife' in S.125 of the Code should be given a wider and extended meaning. It must include therein not only a lawfully wedded wife but also a woman married or lived together for a considerable time as wife. If a husband had married a woman without disclosing the existence of the first wife the marriage held in between both husband and wife is treated bad as per law. The media reports remind us of husbands marrying more than once for dowry etc. If the goddess of justice closes its eye, the destitute wives are deserted both by their husband as well as law. The maintenance is deprived for no reasons of her and for no wrong on her part. In such cases the marriage could only be treated as valid marriage, as the fact of the subsistence of first marriage had been suppressed11.

Such incidents do happen. The Explanation to sub-s.(3) of S.125 clearly foresees such incidents. The said explanation reads as follows: -

"If a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him. "

The dichotomy between "has contracted marriage with another wife" and "keeps mistress" is obvious. The verb 'keep' is used in present tense. In phrase contracting of marriage is concerned, the verb is present perfect- "has contracted". From this it is clear that the marriage might have been contracted at any time. It will refer to the first as well as the second marriage. It cannot be said that the just ground of a husband contracting marriage with another wife is only available to the first wife and not to second wife on the ground that the proviso is not made for the benefit of the second wife. The wife, second or third, must be entitled to grant of maintenance for her survival and sustenance in view of the prima facie finding of fact that the relation between a male and female are that of a husband and wife.

The Orissa High Court laid down that intricacies of the law are not required to be gone into and where the man and woman lived together as husband and wife and treated as such by the community and the man treated the woman as his wife, marriage between them has to be inferred for thelimited purpose of S. 125 of the Code12 Here both parties were scheduled tribes (Kandha community).

In Kumari Bai v. Anandram, the Madhya Pradesh High Court granted maintenance13 where the non-applicant married applicant wife (both Gond tribes) according to Chun custom but not by regular marriage and was kept her as Rakhel (keep). Both were married before too.

It is admitted that the provisions of Hindu Marriage Act do not apply to Scheduled Tribes as per Section 2(2) of the Act. -

"... nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Art.366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs."

The situation is grave in circumstances where maintenance is denied to an illiterate and unemployed woman. Being an illiterate and unemployed wife there exist no means for survival. She is liable to get an award of maintenance from the defaulting husband who played fraud to her. A husband who is healthy and able-bodied is held to have means to support his wife and children14. He escapes from his misdeeds by resorting to the contention that she is only his concubine or keep and not his legally wedded wife.

Secondly, it is argued that that the second marriage, though valid under customary traditions, is against public policy.It is admitted that no custom is valid if it is opposed to morality or public policy. Public policy is always against polyandry and polygamy. Monogamy as a valid marriage system is preferred in all legal systems including India. The intention of the legislation can be discerned from the enactment of S.494 of I.P.C.

Under Shastrik Hindu law polygamy is not strictly prohibited. In various communities under customs it continues. Divorces are common. They are governed by their personal customs. Marriage relationship under those customs in the communities is not sacrosanct.

It is hard to digest that maintenance be denied to a destitute wife to uphold the so-called morality. The society acts as a super cop of the morality against second wife. The 'living law' to abolish polygamy is not used against recalcitrant men folk. The mighty State is not authorised as our Big Brother to control our emotional and economic lives as in Orwell 1984. The present position of law and State only helps an unscrupulous married man. Dr. Werner F. Menski in his essay titled 'Reluctant Legislative Activism15 mocks at this hypocritical self.

"Almost 50 years down the line, we are forced to realise that Indian courts have been administering and regulating Hindu polygamy and its consequences, rather than punishing Hindu polygamists as criminalsfor having several wives. For polygamy continues to exist...in reality it seems, and not just in Kerala, almost all Indian men are getting away with making polygamous arrangements..."

It is also significant to remember that recognition by the society is not a pre-condition for marital status. Marriage is a personal right of the spouses. They are entitled to live together. After marriage they live together. It is open to the knowledge of the community in which they live. They acquire marital status by such living. In the case of Valsamma Paul v. Cochin University16in which the Hon'ble Supreme Court held as follows-

"The immediate question arises whether recognition of the community is a pre-condition ? ...It is common knowledge that with education or advance of economic status, young men and women marry against the wishes of parents and in many a case consent or recognition would scarcely be given by either or both of the parties or parents of both spouses. Recognition by family or community is not a pre-condition for married status."

Moreover, the order of the court granting maintenance acts as a deterrent weapon upon husbands, marrying during their first marriages and throwing poor women to pavements. Men are reminded of their legal and moral obligations. If not, the law stands in favour of the husband who evades the obligation to maintain the wife and children by raising unreasonable argument that she is only a second wife.

Thirdly, it is argued that the Legislature upholds the legitimacy of the paternity of a child born out of a void marriage and not the second wife.A similar protection as legitimizing paternity of a child of void marriage is not extended in respect of the mother of the child.

In Smt. Yamunabai Anantrao Adhav case it is observed that even in a summary proceeding under Section 125 Cr. P.C, the Court is required to find out whether applicant-wife was lawfully wedded wife or not17. The Court considered the point whether a Hindu woman who has married after coming into force of the Hindu Marriage Act, 1955, with a man having a lawfully wedded wife, can maintain an application for maintenance under S.125 Cr. P.C. The Court confirmed that the Legislature decided to bestow the benefit of S.125 Cr. P.C. even on an illegitimate child by expressed words but none are bound to apply to a de facto wife where the marriage is void ab initio.

The existence of a second or third marriage cannot be declared as illegal or immoral in modern times. Legal pronouncements also hint at it. The Allahabad High Court, while upholding the constitutional right of the citizens as enshrined in Arts.19 and 21 of the Constitution of India in the case of Payal Katara v. Superintendent, Nari Niketan, Kalindri Vthar, Agra & Ors.18held that the petitioner, a lady of about 21 years of age being a major, has right to go anywhere and that anyone- man and woman even without getting married can live together if they wish. If such a right is recognized then maintenance can also be claimed.

The Legislature has to consider the present day circumstances in amending the law. The Code of Criminal Procedure (Amendment) Act, 2001 and the Indian Divorce (Amendment) Act, 2001 are positive signs of legislative activism. Matrimonial laws still need a fresh look. It is obvious from spiraling divorce rates in family courts. The parties now readily choose to opt out of the marriage if they are unhappy. John Milton's essay laughs at matrimonial laws even long time back for interference in personal, emotional lives. The essay19 published in 1643 deplore matrimonial laws that imprisoned the unhappily married in 'a drooping and disconsolate household captivity, without refuge or redemption'. Every law is permitted and designed to sub serve the ends of justice. It always aims at rendering the substantial justice. The litigants look for justice and not injustice. The manner and mode of implementation of this provision makes our courts graveyards for the exploited ones and playgrounds for the offenders.

The court must consider the palpable injustice being suffered by the womenfolk though no fault on their side. It is desirable to remove the hardship by extending the benefit of theprovisions of the section to a dejected and driven away woman who is a second wife so long as she did not remarry and live in adultery.

The Apex Court in a case observed that "the provision under S.I 25 is not to be utilised for defeating the rights conferred by the legislature to the destitute women, children or parents who are victims of social environment20. Here the husband's contention was there's no valid marriage as essential rites were not performed.

In another case- Ramesh Chander Kaushal v. Mrs. Veena Kaushal & Ors.21, the court held that "social justice is not constitutional claptrap but fighting faith that enlivens legislative texts with militant meaning." The scope of S.125 Cr. PC has been exhaustively dealt with Krishna Iyer, J. in the case at paragraph 9 of the judgment thus: -

"This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Art.] 5(3) reinforced by Art.39. We have no doubt those sections of statutes calling for consideration by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out the interpretation but of two alternatives which advances the cause -the cause of the derelicts."

Cultural perceptions of women have led to distorted attitudes about them. The religious orthodox and social patriarchs always undermine them. She and her family are vulnerable to socio-economic pressures. The Supreme Court acknowledged it in Mohd Ahmed Khan v. Shah Bano Begum22"undoubtedly the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reason good, bad or indifferent, indeed for no reasons at all". In Re Amino23Justice D.R. Dhanuka said, "It is impossible to ignore the patent discrimination resulting from some of the provisions of personal laws sought to be enforced in our courts."

It is time to think whether a destitute second wife is entitled to maintenance under the principles of equity, justice and good conscience. The Act provides that certain persons mentioned therein are entitled-to maintenance. There is nothing in the said Act, which provides other person from claiming maintenance and being awarded on principles of justice, equity and good reason. Granting of maintenance allowance is always aimed at preserving the existence of an individual who is not in a position to support her. In Obula Konda Reddy v. Peda Venkata Lakshmana24it was held that S. 18 would include a wife whose marriage is solemnized though the marriage is void. This judgment was widely criticized.

The Court is not a silent spectator. It must sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences25. It is the duty of the courts to grant and provide benefit of this benevolent law to the destitute of the present day. In Carew and Company v. Union of India26, the Supreme Court declared,

"If the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute."

In short, the law looks at 21st century with the punitive system of 19th century to create a very suppressive and conservative sexual morality. The legislature and legal forces has to respond to changes. They wrongly assume its role as a super cop of the morality. A woman has to be treated with dignity, as she does not play a subsidiary role in the life of a man. She cannot be expected to live like a church mouse in the days of yore. A wife is an epitome of the cementing factor in the domestic life and embodiment of sacrificing synthesis in social fabric. She is a symbol of virtue, an emblem of Olympian calmness and an embodiment of Himalayan poise. This being the position of a wife, it is undesirable to conceive that she must live in distress because she is only a second wife. A complete transformation is required in our jurisprudential thought where the agenda of the judiciary and legislature should be to strengthen civil society and protect legal and human rights.

________________________________________________________________________

Foot Note:

1. U.L. Bhat J. in Balanv. Valsamma, 1986 K.L.T. 1378. (F.B.).

2. Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375.

3. Ramfool Mina v. Smt. Jagrati, 2001 Cr. L.J. 920.

4. Bhagwan Dutt v. Smt. Kamala Devi, AIR 1975 SC 83 (para. 11).

5. Rohtash Singh v. Ramendri, 2000 Cr.L.J. 1498 (SC).

6. Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375.

7. (2000)3 SCC 753.

8. 1988 (l) RCR (Crl.)322:l988 (2) SCR 809.

9. (1998) 8 SCC 477:1999 AIR SCW 4700.

10. 1991 (2) SCC 375.

11. Mallika and Anr. v. Kulandai, 2000 Crl. J. 142.

12. Anupama Pradium v. Sultan Pradhan, 1991 Crl. J. 3216 (Orissa) para. 9.

13. Kumari Bai v. Anandram, 1998 CrL. J. 4100. Sreedharan v. Pushpa Bai, 1978 K.LT. 26.

14. Durga Singh Lodhi v. Prembhai, 1990 Cr. L.J. 2065 M.P.H.C.

15. 2004(1) KLT 35.

16. 1996 (1) KLT 169 (SC) = AIR 1996 SC 1011

17. 1988(l) RCR (Crl.)322:1988 (2) SCR 809.

18. http://pib.nic.in/archievs/Ireing/Iyr 220/mar 2002/04032002.

19. Doctrine & Discipline of Divorce.s

20. Dwarika Prasad Satpathy v. Bidyut Prava Dixit, 2000 Cr. L.J. 1.

21. AIR 1978 SC 1807:1979 Cr.L.J.3.

22. AIR 1985 SC 945.

23. AIR 1992 Bom.214.

24. AIR 1976 AP 43.

25. Motor Owners' Insurance Company Limited v. Jadavji Keshavji Modi and Ors. (1981) 4 SCC 660(paras.l4, 15 and l6).

26. 1975 (2) SCC 791.

'Unbridled' Expansion - of 'Life' And 'Personal Liberty' In

Article 21 - Whether to Be Curtailed?

(By N. Dharmadan, Sr. Advocate, Ernakulam)

The Supreme Court interpreted Art.21 in most liberal and "creative" manner with "activist" approach, but its amplitude has not yet been exhausted. Art.21 as it stands today provides "No person shall be deprived of his life or personal liberty except according to procedure established by law. It focuses the 'life' and 'personal liberty' of person. The method or route to which the State must adhere is clearly specified as the 'procedure established by law'. But the limitations of this small article have not been fully set out in any decision so far rendered by the Supreme Court. The activist judges are expanding its scope in the latest decisions as if it has no limits.

Legislative history of Art.21 would throw valuable light. Any evaluation on the nature and scope of this Article would disclose that Art. 19,21 and 22 are integrally connected. Draft Art. 15 (now Art.21) as originally passed in the Constituent Assembly, provided that "No person shall be deprived of his life or liberty without due process of law". The Sub Committee on Fundamental Rights discussed in extenso the scope of the words 'life', "liberty" and 'due process of law', Sri. B.N. Rao and Dr. K.M.Munshi stressed that the word "liberty" was too wide and the expression 'due process of law' would trigger endless litigation as it was in USA. Dr. Ambedkar was of the view that there was much to be said on both sides and that it would be better to leave it to the Assembly to decide the text.

However the Drafting Committee suggested two changes, which were eventually accepted by the Assembly: (i) add the word "personal" before the word "liberty" and (ii) substitute the expression "except according to the procedure established by law" for the words "without due process of law". This was done substantially to restrict the wide meaning of "due process", which was vague and flexible. It was used by the majority of the Judges of the U.S. Supreme Court to enforce both substantive and procedural laws. This change in Art.21 was the result of discussion which the Constitutional Advisor, Sir B.N. Rao had with Mr. Justice Frankfurter of the U.S. Supreme Court (Constitution Assembly Debates (CAD) Vol. VII page 842 to 857). By this restriction the Drafting Committee has given up completely the American corresponding concept of due process with a view to make it more precise as a matter of drafting. When the members in the Assembly were agitated in the course of discussion at the proposal of replacement of the "due process" clause by "procedure established by law" Dr. Ambedkar "lifted" the relevant provisions of the Criminal Procedure Code and "incorporated" the same into the adjacent Art.22 "with the title" Protection against arrest and detention in certain cases." Art.22 is inseparable and go along with Art.21. A conjoint reading of both would clarify the scope Art.21 and its parameters.

In fact at the first stage of drafting there was no article corresponding to Art.22 in the Constitution. When the proposal to delete "due process" Dr. Ambedkar (CAD Vol. IX page 1494). on 15th September, 1949 moved that a new Art. 15-A (which corresponds to Art.22 of the Constitution) be introduced. He said "what we are doing by the introduction of Art. 15-A is to put a limitation upon the authority both of Parliament as well as the Provisional Legislatures, not to abrogate these two provisions, (two provisions contained in clause (1) and (2) in theCriminal Procedure Code) because they are now introduced in our Constitution itself..............I am quite satisfied that the provisions contained are sufficient against illegal or arbitrary arrests".

The question of interpretation of Art.21 and its relation with Art. 19 came up first before the Supreme Court in A.K. Gopalan's case (AIR 1950 SC 27). Gopalan, who was a citizen challenged the validity of his detention as void and violative of Art.19 and 21 and that the. Detention Act did not comply with the requirements of Article 22. It was contended that 'personal liberty' in Article 21 includes all the freedoms conferred by Art.l9(l)(a) to (g). So the correlation of Art.21 to 19 was the central issue in that case. The majority of the judges in A.K. Gopalan's case held that Art.22 was a self contained code and therefore a law of preventive detention did not have to satisfy the requirements of Arts. 19 and 21. It was also held that the right to move throughout India was entirely different from the concept of the "right to personal liberty" in Art.21 and Art. 19 should therefore be read as controlled by Art.21.

Correctness of this decision in A.K. Gopalan's case was not doubted till the Bank Nationalization case (AIR 1970 SC 564), in which the Supreme Court reconsidered A.K. Gopalan's case and dealt with interrelationship of Arts.19, 21 and 32. A bench of 11 Judges, by a majority of 10:1 held that this case was wrongly decided. But Menaka Gandhi's case (AIR 1978 SC 597) opened up a new dimension and laid down that Article 21 imposed a limitation upon law making viz: that while prescribing a procedure for depriving, a person of his 'life' or 'personal liberty' it must prescribe a procedure which is "reasonable, fair and just".

Art.21 was meant to provide safeguards against arbitrary arrest and detention of persons. It was to be a shield against physical restraint of and assault against persons by the state machinery. In A.K. Gopalan's case the Judges concentrated on "liberty of physical body', 'freedom from physical coercion", "physical restraint of a person by incarceration or otherwise" etc. Thirteen years after A.K. Gopalan 's case the Supreme Court gone a step further and held in Kharak Singh v. State of U.P. (AIR 1963 SC 1295) that entering the house of a person and searching it to ascertain whether the person was in, there was a violation of Art.21, unless it was done in accordance with procedure prescribed by law. The "personal liberty" is used in Article 21 as a "compendious terms to include within itself all the varieties of rights which go to make up the personal liberties of a citizen other than those dealt with in Article 19(1). which deals with particular species of attributes of that freedom, "personal liberty" in article 21 takes in and comprises the residue." "By the term 'life' as here used something more is meant thanmere animal existence".....It is meant "more than mere freedom from physical restraint or thebounds of a prison".

The above exposition and extensions of "life" and "liberty" in Art.21 became a free passage for the courts in successive judgments to further expand the scope of this Article. In Sunil Batra 's case (AIR 1978 SC 1675) it was held that Art.21 protects the right against solitary confinement i.e., "the liberty to move, mix, mingle, talk, share company with co-prisoners." If these rights are curtailed it would be violative of Art.21 unless the curtailment has the backing of law. Speedy trial and free legal assistance to accused person who is unable to engage lawyer and secure legal service were held to be constitutional mandate flowing from Art.21. (Hassainara v. State of Bihar AIR 1979 SC 1377). A suspect has the right under this Article (Madbesh Wardhar Singh v. State, AIR 1986 page 324 (PP) to an expeditions police investigation. Similarly right against 'bar fetters' (Charlies v. SupdL, 1979 (1) SCR 512) against handcuffing (Prem Sharkar Singh v. Delhi Administration, AIR 1980 SC 1535) against delayed execution (Vatbeeeswaran v. State of Tamil Nadu, AIR 1983 SC 361), against custodial violence (Sheela v. State of Maharashtra, 1983 (2) SCC 96. etc. are only few of the instances of inherent rights arising under Art.21 according to the Supreme Court. More and more rights are derived and 'divined' from this Article by the Courts recently.

The right to life is the right to live with dignity and it includes "some of the finer graces of human civilization which make life worth living" (Francis v. Administrator, AIR 1981 SC 746. with further right of maintaining and preserving one's right to reputation (Board of Trustee v. Dilip Kumar, AIR 1983 SC 109). In other words 'life' in Art.21 has been construed to include every "aspect of life which makes it dignified" (Gian Kumar v. State of Punjab, AIR 1996 SC 1257) and worth living.

The right of people, who live in remote and inaccessible areas having no communication and transportation are entitled, to get facilitates of accessibility and means of communication, These rights are held to be "access to life itself (State of Himachal Pradesh v. Umed Ram, AIR 1986 SC 847). Persons living in slums and on pavements can continue their living till they are provided alternate accommodation, which must be "near enough to the places at which they earn their livelihood" (Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 847). The "culture, tradition and heritage" of a person would also come within the compass of the expanded concept of Article 21 (Ramsabran v. Union of India, AIR 1989 SC 549). It has been held that "the State should create conditions and facilities conducive for women to realize the right to economic development including social and cultural rights" (Madhu Kisbwar v. State of Bihar (AIR 1996 SC 1864). Thus all rights "basic to dignified" are part of right to life. According to the court the right to privacy is implicit in the right to life and liberty guaranteed to the citizen by Article 21 (Rajagopalan v. State of Tamil Nadu, 1994 (6) SCC 622). Protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed form part of Art.21. Therefore "there is a constitutional imperative on the State Government and the Municipalities, not only ensure and safeguard proper environment but also an imperative duty to take adequate measure to promote, protect and improve both the manmade and the natural environment" (Veerendra Gaur v. State of  Haryana, 1995 (2) SCC 577. Under this Article the State is duty bound to eradicate prostitution. "The executive must evolve a scheme for the rehabilitation of these fallen women and for that children - one that will ensure them education and the wiping away of all stigma" (Gaurav Jain v. Union of India, AIR 1997 SC 3021).

The scope of Art.21 expanded to such an extent that recently the Supreme Court held that "right to life under Art.21 includes the right to a person to live without being hounded by police or the CBI to find whether he has committed any offence or its living as a law-abiding citizen" (Secretary, M.l. & R.E. Service v. Sahngoo Ram, AIR 2002 SC 2225). It was also found that a "right provided and protected by Article 21 of the Constitution, would override provisions of every statute including the Motor Vehicles Act, if they militate against the constitutional mandate of Art.21 (Melta v. Union of India, AIR 2001 SC 1948). Allowing even a "medical examination of a woman for her virginity would certainly violate her right of privacy and personal liberty enshrined under Art.21 of the Constitution" (Surjit Singh v. Kanwalijet, AIR 2003 P. &H. 353).

The widening of the ambit of Art.21 and successive enlargement had important consequences. Extensive interpretation of the phrase "personal liberty" may lead to confusion.The Supreme Court itself now felt that some limitation on "the extensive interpretation of the phrase "personal liberty" in Art.21 would be imposed". It was held in Sharda's case (Sharda v. Dharmapal, AIR 2003 SC 3450), "when there is no right to privacy specifically conferred by Art.21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Art.21, it cannot be treated as absolute right. What is emphasized that some limitation on the right had to be imposed..."

It is true that the Judges are duty bound to expand the legal concepts to do justice and advance public morality or public interest and enforce rights through the process of courts. "The Judges are not expected to sit as mute structures of clay in the hall known as court room, but have to be sensitive, "in the sense that they must keep, their fingers firmly upon the pulse of the accepted morality of the day (Mr. X. v. Hospital, 1988 (8) SCC 298). But they should not forget their limitations and the ill effects on account of the interpretation of the legal term in Art.21 for the purpose of suiting the convenience and taste of individual Judge and the recent interest of general public on account of enormous increase.

The judgments and orders are of such sweep that they are at times found to be impossible of implementation. The prevailing tendency is that some of the activist Judges have come to see every thing falling within Article 21. If no one seriously and promptly focuses attention towards the far-reaching ill-effects of the unlimited expansion of Article 21, to ensure that only balanced decisions circumscribed by the inborn limitation, are rendered by the activist and "rights mongering judges", a stage may reach that their orders and judgments will recoil and boomerang on them and cripple the judicial system, which if it happens will be a sad day.

JUNIORS, IT'S TIME TO GO ONLINE

(By Justice M.R. Hariharan Nair)

The Bandwagon of BPO is to arrive shortly. Are the Junior Lawyers in Kerala ready to get in?

News Reports have it that New Jersey Law Firms like Sills, Cummis, Epstein, etc. are seriously considering outsourcing of part of their work. The assistance expected is in the matter of preparing Deeds and pleadings and even for proof reading of the pleadings already prepared. Depending upon one's capacities he can opt for the work; perfection and punctuality being the sine qua non. The expectation abroad is that the highly educated work force in India would work for less (going by their standards) and get legal research and other support work done here while the American Lawyer is asleep after the day's work. When he reaches his office the next morning the required work, in completed form, should be on his computer through E-mail. Of course, the remuneration will be in dollars or its equivalents. Needless, therefore to say that the young lawyer in India who may find it difficult to find an adequate clientele in his early days and with lot of spare time at his disposal, can find a gold mine in this new field. What is required appears to be a firm will to do hard work and that too within strict time restraints. As in the case of any other commercial export, the caution is that once your product is found to be sub standard, that will be the end of the show. A black listed person may find it very hard to get another work whatever be his justification for the alleged lapse. Perfect work, and that too within the time allotted, is the demand. If you can do that without affecting your regular practice, get ready to reap this very beneficial bye-product of globalization.

Investment and other requisites? A knodding acquaintance with cybernetics would certainly be required. Thanks to the policies of our Government, price of Computers have reached an all time low, if not the rock bottom. With an investment of about Rs.25,000/- you can now own one with essential qualities and features. Our commercial Banks of both sectors have already transformed themselves and now evince a liberal and positive attitude to those inclined to borrow. Interest rates are minimal. So why not prepare yourself for the challenge now itself? Why not launch a web site of your own so that people abroad can know of your talents, equipment and availability? To succeed, that you are there should certainly be let known to the possible takers. Perhaps the early bird catches the prey. So why not give it a trial? Are you ready to go online? If not atleast get ready straightaway. Time will not wait for you.