Who Will Have the Last Laugh - The Lenders or the

Borrowers

(By R. Ravikumar, Manager (Law) Central Bank of India, (R.O) Ceimbatore)

Honourable Supreme Court of India has upheld the constitutionality of the Securitisation Act which empowered the Secured Creditors to attach, sell, create third party interests & takeover defaulting units without the intervention of the court. At the same time court has struck down S.17(2) of the Act as unconstitutional which interalia stipulated deposit of 75% of the defaulted amount by borrowers while preferring appeal to the Appellate forum, the Debt Recovery Tribunals. Now, the secured creditors as well as industry on behalf of borrowers is hailing the verdict and hence an analyses is warranted.

In order to tackle the menace of mounting Non-performing assets of lenders, Parliament enacted DRT Act in 1993 and established various Tribunals throughout the country. As apparently as these Tribunals were not delivering the expected result and in the wake of NPA shootingup to the level of Rs.l lac crore, an alternative mechanism was thoughtout.

Securitisation Act enacted and put to use by lenders which was opposed tooth and nail by the borrowers and on their behalf by the industry. Now while upholding the constitutional validity, Supreme Court has struckdown S.17(2) which stipulates depositing of 75% of the defaulted amount as a condition precedent for prefering appeal by borrowers. While doing so certain guidelines were laid down by way of obiter dicta.

That borrower has a right to appeal only after possession is taken over by the secured creditor. Though within the narrow scope and on the limited grounds on which a civil suit is permissible in matters relating to English mortgage enforcable without intervention of court, a civil suit permitted by a borrower. This narrow scope is nothing but attribution of fraud. Though establishing fraud is difficult against a creditor mortgagee, to maintain a civil suit suitable pleading in the plaint to that effect is sufficient. Thus a recalcitrant borrower obtaining an injunction against a secured creditor from a civil court alleging fraud cannot be ruled out.

Further appeal under S.(17) to DRT is provided against any measure taken by the secured creditor under S.13(4) of the Act. These steps include taking possession or taking over the management, valuation of the security interest and fixing up of upset price by Authorised Officer, calling for tenders by private or public auction, sale, confirmation of sale etc. It appears that a borrower/guaranter can challenge the secured creditor's action at each stage by way of an appeal culminating upto Supreme Court by way of a Special Leave Petition.

As Securitisation Act covers NPA accounts above Rs.1 lakh, DRT's will be flooded with appeals and this will further hamper the progress of its normal functioning.

Thus on a final analysis it appears that the secured creditor's proceeding further under the Act is going to be entangled in multifarious litigation and the borrower and the industry will have the last laugh.

MRS. & MR. JOHN NEED NOT WAIT

(By R.T. Pradeep, Advocate, Ernakulam)

The decision in John Roji1 is under scurrilous attack in the article penned under the caption "Mrs. & Mr. John must wait”2 on the premise that the mandamus issued by the High Court is in direct conflict with the statutory provision.

The factual matrix of the case is that a newly married couple was in dire need of a marriage certificate from the marriage officer for the purpose of visa as the marriage certificate issued by the church was not acceptable by the consulate. On a literal construction of S.16 of the Special Marriage Act (hereinafter referred to as the Act), the impediment for the marriage officer to issue the marriage certificate was due to the non-expiry of 30 days allowed to the public from the date of notice to make objections if any and thereafter he was empowered to issue the certificate on his satisfaction of the conditions mentioned under S. 15 of the Act. The parties will be put to irreparable hardship if they have to wait for the certificate till the expiry of the period of notice. So they approached to High Court for a direction to issue the certificate forthwith by dispensing with the statutory period of notice.

The High Court was impelled by the fact that the marriage sought to be registered was a Christian Marriage and having taken place in a church, the same would have been done only after a proper scrutiny. It was directed that the marriage officer shall issue the certificate after obtaining sworn statements from the petitioners. The marriage officer shall wait for objections till the statutory period of notice is over. If any valid objections are made, he may recall the order. On such order being issued, petitioners are directed to surrender the original certificate. The decision was under attack on the ground that it is in violation of the procedure contemplated for registration of marriage under S. 16 of the Act, which stipulates public notice of 30 days, by the marriage officer before issuance of certificate.

Of course, it goes beyond doubt that no mandamus will lie if it compels an authority to actcontrary to law. But whether the said direction in John Roji would ask the marriage officer to. act against what is said in S.16 is a question, which depends on its construction. According toCraig, whether or not a mandamus can be issued for the enforcement of a duty depends on the construction of the statute concerned3. Therefore, what is to be considered is the construction of S. 16 of the Act before examining the decision in John Roji.

The Supreme Court in Nasimddin v. Sitaram Aggarwal4 held: "It is settled position in law that if an act is performed by a private person within a specified time, the same would ordinarily be mandatory. But when a public functionary is required to perform a public function within a time frame, the same will be held to be directory, unless the consequences thereof are specified".

According to Sutherland's Statutory Construction, while a statutory direction to a private individual should generally be considered as mandatory, the rule is just the opposite of that with respect to public officers5. Further the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by the expression in the statute itself and the result that shall follow on non-compliance with the provision6. Maxwell on Interpretation also affirms the said view that if the non-compliance of a provision does not involve a consequence, the said provision can be treated as directory7.

The Act contemplates that public notice of 30 days is to be given by the parties for the purpose of solemnization of marriage under S.5 and a public notice of 30 days is to be given by the marriage officer for registration of marriage under S. 16 of the Act. Here it is pertinent to note that while penal consequences are prescribed if a marriage is solemnized before the expiry of the statutory period under S.58, no such penal consequences are contemplated for the violation of procedure for registration of marriage under S. 16 of the Act. So, by all recognized rules of construction it can be safely concluded that the requirement of issuance of certificate after the expiry of the 30 days period stipulated under S. 16 of the Act is only directory in nature.

It is well known that the use of the word "shall" would not by itself make a provision of the Act mandatory9. The rules of interpretation permit the interpretation of the expression "shall" as "may" and the expression "shall" needs to be construed as "may" if the context so requires10. For this the legislator's wisdom assume importance. The Apex Court has held: "the legislatures do not always deal with specific controversies which the Court decide. They incorporate general purposes behind the statutory words and it is the Court to decide specific cases. If a given case is well within the general purpose of the legislature but not within the literal meaning of the statute then the Court must strike the balance11. Apparently the predominant intention of the legislature in S.16 of the Act is to see whether there are any sustainable and valid objections to the issuance of certificate and to make available a period of 30 days for preferringsuch objections. Thus the use of the expression "shall" in S.16 of the Act can be construed only in this context.

Importantly, the direction issued by the High Court in John Roji doesn't dispense with the requirement of completing the statutory period of notice. What the Court has directed was only the issuance of the marriage certificate anterior to the expiry of period of notice. As mentioned earlier, since no legal consequences are provided under the Act to the issuance of the said certificate prior to the completion of statutory period of notice, the same can only be treated as directory in nature. Thus the direction of the High Court in John Roji doesn't compel the marriage officer to act against the provision in S.16.

One apprehension entertained in respect of the decision in John Roji is that if the marriage officer recalls a marriage certificate after its issuance it would amount to usurping the power of the District Court under Ss.24 (2) and 31 of the Act. But S.24(2) deals with the declaration of a marriage registered under the Act as null and yoid and it has no application to recalling a certificate issued under the Act. It is pertinent to note that the High Court cautiously directed the parties to surrender the marriage certificate in the event of any valid objection during the currency of notice. Here it assumes importance that the marriage officer is competent under S. 16 of the Act to reject an application for registration of marriage, which is an appealable order under S. 17 of the Act. So the intent of the direction in John Roji to recall the issued certificate is only to facilitate the rejection of application on a valid objection raised which is within the power of marriage officer under S. 16 of the Act. This, however, doesn' t amount to a declaration under S.24(l) of the Act and no question of usurping the jurisdiction of the District Court under S.31 arises thereby.

Another apprehension raised about the decision in John Roji is that the Consulate may be reluctant to accept certificates issued before the 30 days period. In fact, the Emigration authorities are reluctant to accept the marriage certificates issued by churches not because they do not believe in their flawlessnesss, but due to the reason that such certificates lack statutory backing. It is a deplorable fact that though church marriages are more authentic, unfortunately due to lack of statutory recognition the certificates issued by churches cannot be legally used before authorities. But once a marriage certificate is issued under S. 16 of the Act on a judicial direction, can the Emigration authorities refuse to accept that certificate? So long as Art. 141 remains in the Constitution, Judge declared law is as good as statute law and directions issued by the superior courts of record will supplement statutory law. Hence it is naive to think that the certificate issued under a statute on the basis of a judicial direction will be discarded. On this account the apprehension is totally misplaced.

Equity and mandamus are not strange bedfellows. According to Wade, equity considerations are not beyond the realm of writ of mandamus especially when it is considered as the counter part of injunction, which is an equitable remedy and within the field of public laws the scope of mandamus is still wide and the Court may use it freely to prevent breach of injustice12. The classic exposition on the writ of mandamus is the one given by the legendary Lord Mansfield, who said,

"It was introduced to prevent disorder from the failure of justice, and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy and where in justice and good Government there ought to be one"13.

On the writ of mandamus, Justice Darling said in R. v. Hartley Revising Barrister as follows:-

"Instead of being astute to discover reasons for non-applying this great constitutional remedy for error and mis-govemment, we think our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable”14.

The greatest contribution of justice to mankind is the invention of equity. It goes without saying that equity as a body of principles was evolved to mitigate the severity of the rigid application of common law15. Developed systems of law have often been assisted by the introduction of a discretionary power to do justice in particular cases where the strict rules of law cause hardship16. Legends like Lord Denning, Justice Cardozo and Justice Holmes have created new rights in situations where in fact no rights were guaranteed by statutes, by evolving new principles like legitimate expectation, doctrine of proportionality etc.

Lord Scarman tells us,

"the mark of the great judge from Coke through Mansfield to our day has been the capacity and the will to search out principle to discard the detail appropriate (perhaps) to earlier times and to apply principle in such a way as to satisfy the needs of his own time. If Judge made law is to survive as a living and relevant body of law, we must make the effort, however inadequately, o follow the lead of the great masters of the judicial art"17.

The decisions of the Supreme Court wriggling out from the rigour of statutory prescription to alleviate the hardship of parties on equity are also legion. Chief Justice Pattiaik held: "would it all be equitable to deny the relief to appellant by giving a literal interpretation to the incentive schemes of the Government as adopted by the Board? Our answer to this question must be in the negative"18.

Justice Arjit Pasayat said: "The crucial question is whether there can be any direction for interest on rental compensation once it is held that the same has to be paid within the time frame, notwithstanding the fact that there is no statutory obligation. Though the inevitable conclusion is that the High Court is not justified in directing grant of interest on the logic of various provisions contained in the Act, yet, there is an element of equity in favour of the land owners"19.

Justice Oliver Wendell Holmes opinioned,

"The life of law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which Judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed”20.

Julius Stone has told us that strict adherence to the statutory prescription must either mean "merely trying to hold the living law within a metrics which is quiet arbitrary in relation to the contents or that they are hypo critically pretending to do so”21.

According to Francois Geny, the noted legal philosopher, the process imposed upon the Judge in finding the law is very analogous to that incumbent in the legislator himself 22. And Justice Cardozo has said that the duty of the Judge is to declare law in accordance with reason and justice and the 'mores' of the day23. "Justice, like mercy, is what might be called an irreducible concept; it cannot be helpfully defined further" 24. The famous American Lawyer Clarence Darrow once said: "If there is such a thing as justice it could only be administered by one who knew the inmost thoughts of the man to whom he was meting it" 25. Very often it goes unnoticed what is scripted behind the Honourable Judges sitting in Court I of the Honourable High Court of Kerala, "fiat justia, ruat coelum " which means "let justice be done though the heaven falls''.

At times I feel that we are returning to the dark periods of rigid application of literal law. But decisions like John Roji are silver linings in those dark clouds and offer new hope for an equitable future to thousands of persons like Mrs. & Mr. John. From the experience of the above observations, one must appreciate that the endeavour in John Roji was to extricate from the rigour of the literal interpretation of Section 16 of the Act in consonance with the 'mores' of the day, thereby mitigating hardship and giving solace to the non-resident Indians who are home coming for solemnization of marriage on a pre-determined short duration leave with no scope and chance for extension of leave. Here it is apt to remember the decision of the Kerala High Court in Mary Sonia Zachariah26 which gave solace to thousands of Christian women by mitigating their hardship by judicially legislating on the grounds of divorce in Section 10 of the Indian Divorce Act against its specific literal interpretation. So, long live justice and equity.

___________________________________________________________________

Foot Note:

1. John Roji v. Marriage Officer [2004 (1) KLT687]

2. 2004 (2) KLTJournal22.

3. See PP Craig, Administrative Law (3^rd Edn., 2002 Reprint), p. 527.

4. (2003) 2SCC576,589.

5. Sutherland's Statutory Construction (3^rd Edn.), Vol. 3, p. 107.

6. Ibid.

7. Maxwell on the Interpretation of Statutes (12th Edn.), pp. 318-319.

8. See Section 46 of the Act.

9. Maxwell, supra n 7at 319.

10. See NS Bindras's Interpretation of Statutes (8^th Edn.), pp. 1002-1005.

11. Union of India v. Filip Tiago De Gama, AIR 1990 SC 981,985.

12. See H.W.R. Wade & C.F. Forsyth, Administrative Law (8th Edn.), pp. 605-607.

13. R.V. Barker (1762) 3 BURR 1265 at 1267.

14. [1912] 3 KB 518,529.

15. Hanbury & Maudsley, Modern Equity (13th Edn.), p. 1.

16. Ibid.

17. Gillickw. West Norfolk & Wisbech Area Health Authority, [1985] 3 ALL ER 402,419.

18. Hiiech Electro Thermics & Hydro Power Ltd. v. State of Kerala & Ors. (2003) 2 SCC 720.

19. State of Maharashtra & Ors. v. Maimurma Banu & Ors. (2003) 7 SCC 452.

20. Holmes, The Common Law (1881),p.l,

21. Julius Stone, Legal System & Lawyer's Reasoning (1968), p. 232.

22. Francois Geny, Modern Legal Philosophy Series (2^nd Edn.), Vol. 2, p. 77.

23. See B .N. Cardozo, The Nature of Judicial Process (4^th Indian Reprint 2002), pp. 31,72,106.

24. Brian Harris, The Literature of the Law (1998), p. 316.

25. See Arthur Weinberg, Attorney for the Damred (1957), p. 42.

26. Mary Sonia Zachariah v. Union of India, 1995 (1) KLT 644.

The Tribute of Time-About Kum.

Justice Lekshmikutty (Retd.)

(By Medayil R. Prabhakaran, Advocate)

Occasion saddled me, to build the stately rime:

The gratulation of Muses, to their delegated fan;

Retreats! in the tide of time that foregone,

Who behold justice apt to Nature's level;

Perceived the case of life, to serve in accord,

Sang of life and love melodiously;

And glorified the scene of excellence.

Let the blossoms of April be a carpet to thy exit;

And the season's odour be spread in the auspicious breeze.

Long live Thee! May peace be with Thee!

About Costs

(By V. Sivaswamy, Advocate, Ernakulam)

I am provoked, or to put it more correctly, inspired to write these lines by what Sri. T.P. Kelu Nambiar has written in 2002 (3) KLT Journal Page 64. The law relating to costs is embodied in S. 35 of the Code of Civil Procedure which reads as follows:

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by who or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the court shall state its reasons in writing.

Resort to court for adjudication of disputes between the rival parties is an expensive affair. As Sri. Nambiar has correctly pointed out, costs or expenses are awarded by the court to the party who succeeds in the cause to be paid by the party who loses the game. It is a sound rule as laid down in S.35(2) CPC, that costs should follow the event, unless for some exceptional reasons, the court finds it necessary to deviate from this rule. If such deviation is to be made, the Code insists that reasons should be given to justify such deviation.

The present trend however seems to be to refrain from awarding any costs to the successful party. The various pages of the law reports give innumerable instances where the appeal or the petition is dismissed with the further observation "no costs" or "under the circumstances, without any order as to costs."

The frugal of such cryptic words can hardly satisfy the statutory requirement of S.35(2) of the Code. I am however inclined to think that Judges may feel they would be unpopular if the party who loses is directed to pay the costs of the party who wins. Refraining from directing such payment of costs can of course afford immense consolation to the counsel who loses, especially when he is a fresher in the profession.

Sri. Nambiar appears to take serious exception to the judgment of the Division Bench in 0,P. 18338/02 where both the petitioner and 4th respondent were directed to make payments to the Legal Services Authority which was not a party to the proceeding. Of course prima facie it appears to be a strange direction in that the parties on opposite sides have been directed to pay costs to an authority which is not a party to the proceeding. Neither the facts of the case nor the ultimate decision of the Court are available in the article of Sri. Nambiar. I, for one, am ready to presume circumstances justifying the award of such direction. If the petition has been filed by the petitioner only as a puppet or tool of the 4th respondent, a direction given to both of them to pay costs would be reasonable, if the petition was found to be without any merits and was liable to be dismissed.

Authorities are not lacking to show that a person who is not a party to a proceeding before the court can be called upon by the Court to pay the costs of the party who wins. Emphasis in this connection is made on the use of words "by whom" instead of "by which party" in S.35(1) CPC. Thus a legal practitioner appearing for the losing party has in some cases been directed to pay the costs of the party who wins. Initiation of unjustifiable legal proceeding by the counsel would be an instance in point. In Smt. Vidya Verma v. Dr. Shiv Narayan Verma (AIR 1956 SC 108), out Supreme Court had occasion to direct the advocate who filed a petition for habeas corpus under Art. 32of the Constitution to pay the costs of the opposite party and also the costs of the learned Attorney-General who appeared before the Court at its direction to oppose the motion. That of course was a case where the counsel initiated the proceeding as the next friend of a lady against her father and uncle without consulting her or her husband and that too after he had lost the case both before the High Court and the Subordinate Criminal Court. The Supreme Court pointed out to the counsel that the petition under Art. 32 for infringement of the alleged fundamental right of the petitioner under Art. 21 may not be maintainable so long as neither the State nor any authority of the State has been impleaded as a respondent in the proceeding. The counsel insisted to be heard on merits and only ultimately when he came to know that the case will be decided against him by the Court, that he chose to withdraw the petition. Permission to withdraw was refused by the Supreme Court and the Counsel was directed to show cause why he should not be made to pay the costs. Only after hearing him upon this point the Court directed him to pay the costs of the opposite party and the learned Attorney-General.

The question that is mooted now is whether a person or an authority who is not a party to the proceeding can be directed to be paid costs by any party to the proceeding before the Court. This exactly appears to be what has happened in O.P. 18338 of 2002 mentioned above. Two of the parties to the proceeding have been directed by the High Court, in this case to make payment to the Legal Services Authority which was not a party to the proceeding. In the words of Sri. Nambiar, this is a case of not cross costs, but one of multiple costs in favour of a non-party. The Court further proceeded to grant liberty to the parties directed to pay the costs, to proceed against their respective counsel for recovering such costs in appropriate proceedings. It is not clear what prompted the Court to grant such liberty nor is it clear from the Article of Sri. Nambiar whether the counsel concerned were given an opportunity to show cause while such liberty should not be granted to their respective parties. The grant of such liberty to the parties appears to have been however of no significance whatsoever, when on the review application, the Court has made it clear that no final pronouncement on the liability of the Counsel has been made and that such liability has to be adjudicated on its merits in the proceedings, if any, initiated against them by their clients. If that be so, why at all there was any such mention of "grant of liberty" to the parties to initiate such proceedings against their counsel in the original judgment pronounced by the Court. The apparent consolation to the parties, given as per the judgment sought to be reviewed, ultimately seems to have been displaced by a consolation afforded to their counsel as per the order on the motion for review.

Going by the traditional view, costs ordered by the Court in any proceeding is only compensation payable to the party who wins for the expenses incurred by him in prosecuting or defending the proceeding, by the party who loses. According to this view, the direction to pay costs to any person or authority who is not a party to the proceeding will be absolutely unwarranted.

Of course S.35 CPC does not insist in so many words that only a party to the proceeding can be directed to be paid costs. The concept of State and State functions has undergone a radical change since 1908, when the present CPC was brought into force. We have wandered far, far, from the Austinian theory to the theory of the modern welfare State. The Legal Services Authority is an authority constituted under the Legal Services Act and the object of the Statute seems to be to afford free legal aid to people who can ill afford to bear the costs of the litigative process. The Rules in O.33 CPC have been found to be hardly sufficient or effective to achieve the ideal of bringing justice to the doors of the poor. The members of judiciary, at all levels, starting from the District level to the National level, are very much associated with the administration of this Statute and the functioning of the Legal Services Authority. This authority is charged to a considerable extent with the duty of implementing this statute in its letter and spirit by organising adalats and taking other measures for settlement of disputes outside the Court room. All this endeavour requires much funds and resources. Their lordships Justice Potti and Justice Khalid directed the defaulting parties, in 1980, in the case referred to by Sri. Nambiar, to pay costs to the State. There was no Legal Services Authority at that time and the learned Judges probably thought that the State which bears the burden of a huge expenditure over the administration of justice should be the beneficiary of their direction regarding costs.

There have been cases where executive authorities functioning under the State have ventured to pass more or less similar orders benefiting the State. The Regional Transport Officer directs that the permit granted to an operator will be issued to him, not merely on the production of the current records of the vehicle, but further on his subscribing to a minimum number of National Saving Certificates. Recently we read in the papers about Village Officers insisting that for the issue of any certificates like Nativity Certificate or Legal Heirship Certificate or even for the mutation of names in revenue records, the concerned party should take a minimum number of Lottery tickets connected with the contribution to the Chief Minister's Relief Fund. Our Courts exercising jurisdiction under Art.226 of the Constitution may of course frown upon such condition imposed by the executive authorities for the issue of permit or a certificate like those mentioned above.

Funds like the Chief Minister's Relief Fund or the Prime Minister's Relief Fund are constituted with the noble object of enabling the State to afford relief to victims affected by national disasters such as draught, famine, floods, earthquake and the like. If the Judges also come to be associated with the collection of such funds, as they are at present associated with the functioning of the Legal Services Authority, one need not be surprised, if the party or even his counsel is directed to pay by way of costs some contribution to such funds, if it appears to the Judge that his case was vexatious or frivolous. Such orders passed by the Court like orders passed by Executive Officers cannot evidently be challenged before any court under Art.226 or any other provision. The Supreme Court has in similar situations directed payment of costs to a non-party like the Legal Services Authority. The Supreme Court can justify its action under Art.142 of the Constitution, the power under which cannot of course be claimed by any other Court.

Tail piece:- The law is what the Judges declare to be the law-vide Art. 141 of the Constitution.

The Danger From Within

(By K. Ramakumar, Advocate)

Whether one likes it or not, Smt. Indira Gandhi, was one of the most powerful Prime Ministers of the World and was viewed with veneration as well as awe in the largest democracy of the world. An American Ambassador once described her as "the only man in the Indian Cabinet clad in Saree." She was however made answerable to the people of India. The people punished her severely in the elections that followed the Emergency and threw her out of office, even inflicting upon her a personal defeat as well. The so-called illiterate dumb-driven cattle like voters of the northern India rose as one man and registered their strong disapproval of the high handed Emergency by the use of an anti-clock wise swastik rubber stamp given to them at the Polling Stations. That was the moment of triumph, for the little man, who does not matter at all, in a democracy otherwise.

In sharp contrast see how the people of India, watched helplessly to the shaking of another predominant pillar of democracy capitulating and caving in during the emergency. Chief Justice Chandrachud, seven years head of the judicial family openly confessed that he wrote ADM Jabalpur under fear. In other words, he conceded that he breached the solemn oath that he had taken at the time of his appointment that he will administer Justice "without fear or favour". The common people of India, could do nothing but heave sighs of sorrow. So was the situation a la Ramaswamy and Ajith Sen Gupta of the Calcutta High Court, who was arrested after demitting his office for alleged links with smugglers and dons of the underworld. Why? Only because an enactment called the Contempt of Court Act exists immunising as many as six hundred and fourty one citizens among the Hundred crore people of the country. Not even the Rashtrapathi or Pradhan Manthri enjoy such absolute immunity from criticism. Ironically, the Act protects the two Gills of the Public High Court, while it was used even against the Gandhi (yes, the Mahatma), the Maulana and a host of other popular leaders including E.M.S. Sounds stupid? Is n't it? That too in a country where the lowliest citizen, a washerman could criticise the Raja and the Raja pathni and the Raja responding with an 'Agnipariksha'. A country of Upanishads proclaiming that "Law is the King of Kings far more powerful than they". The constant use of the contempt power even for trivialities and the umbrella of its protection claimed even to shield demonstrable deviance from probity has naturally raised a demand at high levels including from the Attorney General of India and the Law Minister that the same needs mending or even ending.

In a democracy deriving power from its supreme document, the Constitution and from "we, the people of India", (what a magnificent concept) nobody wielding power over another, can be heard to say "I shall not be criticised, whatever may be my fault."

The recent events in the judiciary, undoubtedly have shaken the confidence of the people in that fine institution moulded and left as the legacy of the Britishers. Chief Justice Chandrachud opens one of his judgments by saying "the biggest threat to judiciary comes from within". It is the Ahamedys, the Anands, the Begs, the Gills, the Rays and Ramaswamys, that have damaged the judiciary more than thousands of Gokhales. No citizen wants a system in which 'cases of probation ends up as cases of pension'. Judicial go-slow, is as much permissible as Industrial go-slow. Incapacity or indifference or both in delivering judgments in time really, amounts to an absolute threat to Justicing system, erodes its image and therefore is contempt. Justice should continue to be according to law, and not "Law according to Justices". Are the members of the profession to which Gandhi, Lincoln and Lenin, belonged listening?