IS AN ORDER DISMISSING AN APPEAL AS TIME BARRED AN

APPEALABLEDECREE? : A STUDY IN THE LIGHT OF

THE SUPREME COURT DECISION IN SHYAM SUNDER SARMA V.

PANNALAL JAISWAL & OTHERS - 2005 (1) KLT198 (SC)

(By P.Chandrasekhar, Advocate, Ernakulam)

The vexed question as to whether an order dismissing an appeal consequent on the refusal of the Appellate Court to condone the delay in presenting the appeal amounts to a decree against which an Appeal would lie under S.100 of the Code of Civil Procedure, 1908 (CPC) has again propped up with a recent decision of the Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal & Ors., 2005 (1) KLT 198 (SC) (Decision dated 4.11.2004 in Appeal (Civil) 5550 of 2004). The case before the Supreme Court was concerned with an order of refusal to entertain an application to set aside an ex parte decree for the reason of dismissal by the Appellate Court of the application to condone delay in presenting appeal against the very same ex parte decree and consequential dismissal of the appeal. The Trial Court took the view that since the appeal against the ex parte decree filed by the first defendant was not withdrawn, the petition under O.IX, R.13 of CPC could not be entertained in view of the explanation to O.IX, R.13 of the Code. A Writ Petition filed under Art.227 of the Constitution of India against the order of the trial Court having been dismissed by the High Court, the matter was taken to the Supreme Court. The trial Court had dismissed the application filed under O.IX R. 13 of CPC in view of the explanation to the said rule that where there was appeal against a decree passed ex parte under the said rule, and the appeal has been disposed of on any ground other than the ground that the appellant had withdrawn the appeal, no application shall lie under the rule for setting aside that ex parte. The only question involved in the case therefore was whether dismissal of an application to condone the delay filed under R.3A of O.XLI of CPC and the consequential rejection of the appeal would amount to disposal of the appeal for the purpose of O.IX, R.13 of CPC. Decision of the Supreme Court in P. Kirankumar v. A.S. Khadhar, (2002) 5 SCC 161, had already settled the law on the point holding categorically that 'the words of the explanation are clear and unambiguous' and that 'they clearly indicate and suggest that if an appeal has been preferred and the same had been dismissed on any ground other than the withdrawal of the appeal, the same would cause a bar to the filing of the application under 0.9, R.13 of CPC. Reference to Kirankumar's case alone would have been sufficient to dispose of Shyam Sunder Sarma's case. The question as to whether such an order disposing the appeal would amount to a decree under S.2(2) of CPC had neither arisen nor was relevant in the case. However, the Supreme Court, in Shyam Sunder Sarma's case, relying on a decision of the Full Bench of the Kerala High Court in Thambi v. Mathew, 1987 (2) KLT 848, held that an appeal presented along with an application for condoning the delay in presenting that appeal when dismissal consequent on the refusal to condone the delay is a decision on the appeal. Explanation to R.13 of O.IX speaks only about disposal of the appeal and the disposal contemplated under the Rule need not be a disposal by way of a decision on the appeal. Disposal in ordinary parlance only means removal of the case from the file of the Court. Disposal of any nature other than withdrawal of the appeal would come within the connotation of disposal of the appeal for the purpose of Explanation to R. 13 of 0.9 of CPC. Therefore, an order dismissing the appeal for the reason of refusal to condone the delay in filing the appeal is also disposal of appeal for the purpose of Explanation to R.13 of O.IX CPC.

The Full Bench decision in Thampi's case, 1987 (2) KLT484, was no more a good law in view of the Supreme Court decision in Ratansingh v. Vijay Singh, 2001(1) KLT 327 (SC). In Ratansingh 's case, the Supreme Court has held that in order a decision of a Court to become a decree under S.2(2) of CPC there must be an adjudication in a suit with regard to the rights of the parties as to matters in controversy in the suit. It was also therefore held in that decision that dismissal of an appeal consequent on the rejection of application to condone delay in presenting the appeal is not a decree within the meaning of S.2(2) of the CPC. The Supreme Court approved the Full Bench decision of the Calcutta High Court in Mamuda Khateen v. Benyan Bibi, AIR 1976 Calcutta 415, which took a view, contrary to the Full Bench decision of Kerala High Court in Thampi's case, that if application under S.5 of the Limitation Act was rejected the resultant order could not be a decree and the order dismissing the appeal is merely an incidental order. The decision of Calcutta High Court in Mamuda Khateen's case was followed by Madhya Pradesh High Court in Bal Krishan v. Tulsa Bai, AIR 1987 Madhya Pradesh 120, and Rajasthan High Court in Chhelaram v. Manak, AIR 1997 Rajasthan 284. These decisions are in accord with the decision of the Supreme Court in R. Rathinavel Chettiar v. V.Sivaraman, (1999) 4 SCC 89, that a 'decree' has to have the following essential elements, namely:

(i) There must have been adjudication in a suit.

(ii) The adjudication must have determined the right of the parties in respect of, or any of the matters in controversy.

(iii) Such determination must be conclusive determination resulting in a formal expression of the adjudication.

None of these attributes are present in an order rejecting a memorandum of appeal consequent on rejection of an application to condone the delay in presenting the appeal. In Ratansingh's case the Supreme Court also held that until the application filed under S.5 of the Limitation Act is allowed the memorandum of appeal is in limbo and that if the application is dismissed the memorandum of appeal becomes otiose. S.5 of the Limitation Act does not provide for a separate application for condoning the delay in presenting the appeal. Application to condone delay in presenting appeal became necessary in view of R.3A of O.XLI of CPC which came into statute book with effect from 1st February 1977. Before the amendment the requirement of filing separate application to condone delay in presenting appeal had not been strictly insisted. R.3A of O.XLI of CPC stipulates that when an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. Sub-r. (3) of R.3A refers such an appeal as an appeal proposed to be filed. It is therefore clear that till application to condone the delay in presenting the appeal is allowed by the Court there is no appeal pending before the Court but only an appeal memorandum of an appeal proposed to be filed. The intention of the Parliament is further fortified by the stipulation in sub-r.3 of R.3 A that the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under R.ll, decides to hear the appeal. R.ll empowers the Court to dismiss the appeal, after hearing the Appellant, without serving notice on the respondent or his pleader. The hearing contemplated under R.ll is to decide as to whether or not the appeal should be dismissed without notice to the Respondent. The question of hearing the appellant under R.ll does not arise till the application to condone the delay in presenting the appeal is allowed.

Ratansingh's case was brought to the notice of the Bench which heard Shyam Sunder Sarma's case. The Bench which heard Shyam Sunder Sarma's case, however, did not accept the decision in Ratansingh 's case as laying down the correct law on the question for the reason that the principle laid down by a three Judge Bench of the Supreme Court in Mela Ram and Sons v. The Commissioner of Income Tax, Punjab, 1956 SCR 166, and in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, was not noticed by the Bench which rendered the decision in Ratansingh's case. There is no specific finding in Shyam Sunder Sarma's case that the decision in Ratansingh's was rendered per incuriam. The latter also does not specifically over rule the former. Mela Ram's case and Sheodan Singh's case were not in anyway concerned with the interpretation of S.2(2) of CPC or R.3 A of O.XLI of CPC. Mela Ram's case arose under Income Tax Act. In Shoedan Singh's case the Supreme Court was concerned with the question of res judicata. That was a case where four suits were tried together culminating in a common judgment, but four decrees. Four appeals were therefore filed. Two appeals were before the District Court and two appeals before the High Court. The Appeals filed before the District Court were subsequently transferred to High Court. Two appeals were subsequently dismissed by the High Court, one as time barred and another for failure to apply for translation and printing of records. The Supreme Court held that dismissal of the two appeals operated as res judicata though the dismissal of appeals was for technical reasons. The Supreme Court also held that the dismissal of the appeals amounted to confirmation of the decision of the Trial Court on merits. The decision was rendered much before R.3A of O.XLI of CPC came into statute book. These decisions of the Supreme Court are not binding precedents for the proposition that when an application filed under R.3A for condoning the delay in presenting the appeal is rejected and consequentially the memorandum of appeal of the proposed appeal is also rejected, the consequential order is a decision on the appeal and hence a decree within the meaning of S.2(2) of CPC. Ratansingh's case is not, therefore, a decision rendered per incuriam. As held by the Supreme Court in Nirmal Jeet Kaur v. State of M.P., 2004 (3) KLT 391 (SC), binding precedent is avoided and ignored only if it is rendered 'in ignoratium of a statute or other binding authority'. Ratansingh's case does not belong to that category. In fact, another binding precedent of the Supreme Court in State of M.P. v. Pradeep Kumar, 2000 (3) KLT 598 (SC) does not appear to have been brought to the notice of the Bench which rendered the decision in Shyam Sunder Sarma's case. Interpretation of R.3A of O.XLI of CPC directly arose in Pradeepkumar's case. In that case the Supreme Court held that the object of enacting R.3A is two fold. First of all, it was to inform the appellant himself who filed a time barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Secondly, it seeks to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the Court has to deal with application for condoning the delay as a condition precedent to entertain the appeal. In other words, the Appellate Court does not get jurisdiction to entertain the appeal until the application to condone the delay is granted. It is now well settled that a decision is a precedent for what is decides and not what logically follows from it. The Supreme Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, has held that a little difference on facts or additional facts may make a lot of difference in the precedential value of a decision. Mela Ram's case and Sheodan Singh's case are not precedents for the proposition that an order dismissing an appeal consequent on the rejection of application to condone delay under R.3A of O.XLI of CPC is a decree within the meaning S.2(2) of CPC. Lack of reference to these decisions does not therefore make the decision in Ratansingh 's case one rendered per incuriam.

The Full Bench decision of Kerala High Court in Thampi's case had relied on Mela Ram's case and Sheodan Singh's case to come to the conclusion that the decree of the Trial Court gets merged in the Appellate Court's decree even when the appeal is dismissed on a preliminary ground or as time barred. The Supreme Court decisions relied on by the Full Bench of the Kerala High Court do not lay down any such legal proposition. The Full Bench in Thampi s case did not consider the scope and interpretation placed on the word 'Decree' as defined in S.2(2) of CPC by various Courts including the Supreme Court. The majority opinion of the Full Bench in Thampi's case, handed down by His Lordship Justice P.C.Balakrishna Menon (as he then was), held that a decree dismissing an appeal in limine without notice to the respondent could not be said to be binding on him and that it could not be said that such a decree would merge in the decree of the Appellate Court. His Lordship Justice Sukumaran (as he then was) while concurring with the majority opinion in Thampi's case on the main issue involved in the case disagreed with the majority opinion equating a decree dismissing an appeal in limine as a virtual nullity and observed that such a view is inconsistent with the very conclusion reached by the majority. When an application to condone delay in presenting the appeal is rejected there is no notice to the Respondent on the appeal and hence according to the law laid down by the Full Bench in Thampi's case there is no merger of the lower Court judgment in the order of the Appellate Court. How can then the consequential order of the Appellate Court rejecting the memorandum of Appeal consequent on rejection of the application for condoning the delay in presenting the appeal be treated as an appealable decree under S.2(2) of CPC? There is another aspect which militates against the principle laid down by the Full Bench in Thampi's case. An appeal against an appellate decree is maintainable under S. 100 of the CPC only if it involves substantial question of law. An order dismissing an application to condone delay in presenting an appeal based on the factual satisfaction of the Appellate Court hardly gives any room for substantial question of law.

The Full Bench in Thampi s case did consider the impact of R.3A of O.XLI of CPC. The Full Bench held that R.3A did not make any difference in as much as a dismissal of the application for condoning the delay under R.3 A resulted in the dismissal of the appeal which can only be under R.11 of O.XLI of CPC. Sub-r. 3 of R.3 A, according to the Full Bench, did not render an appeal properly presented under sub-r.1 of R.3 A a proposed appeal. However, sub-r.3 of R.3 A admits of no ambiguity. The rule is clear and categorical that memorandum of appeal presented along with an application to condone delay in presenting the appeal is in respect of a proposed appeal. R.11 of O.XLI says that the Appellate Court is empowered to dismiss appeal after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears, but without serving notice on the respondent or his pleader. Fixing a date for hearing the appellant can only be after condoning the delay in presenting the appeal. This is clear from sub-r.3 of R.3A of O.XLI, which says that no stay of execution of decree appealed against shall be granted so long as the Court does not, after hearing under R. 11, decide to hear the appeal. Hearing under R.11 arises only when the Court decides to hear on the question as to whether the appeal should be admitted or not. Such a question does not arise till the delay in presenting the appeal is condoned. If the delay is not condoned the natural consequence is to dismiss the appeal under S.3 of the Limitation Act. If the delay is condoned the Appellate Court shall hear the appellant or his pleader on the question of admission of the appeal and if the Court decides to admit the Appeal the Court shall fix a day for hearing the Appeal under R.12 and order notice to the Respondent to appear and answer the appeal. The words 'decide to hear the appeal' after 'R.11' in sub-r.3 of R.3 A obviously refers to the hearing of appeal contemplated under R.12. Which, necessarily, means that stay of execution of decree appealed against shall be granted by the Appellate only if it decides to hear the appeal under R.12 after hearing under R. 11 as to whether or not to admit the appeal. Dismissal of an appeal under S.3 of the Limitation Act, therefore, is obviously a stage prior to the hearing of appeal under R.l 1 of O.XLI of CPC.

The question of merger has been elaborately considered by the Supreme Court in Kunhayammad v. State of Kerala, 2000 (3) KLT 354 (SC). In that decision the Supreme Court has held that the logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject matter. If the Full Bench decision in Thampi's case is held to lay down the correct position in law, when an appeal is dismissed without notice to the Respondent, there will not be merger of the lower Court decree in the decree of the appellate and in the result there will be two decrees. This is contrary to the view expressed by the Supreme Court in Kunhayammad's case. In Kunhayammad's case Supreme Court held that when a petitioner for leave to appeal to the Supreme Court is dismissed by a speaking order no merger results. It has also been held that the application of doctrine of merger depends on the nature of the jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or capable of being laid. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Appellate Court, while exercising the power under R.3A of O.XLI of CPC is empowered to decide as to whether an application to condone delay in presenting an appeal should be allowed or not, and is not empowered to reverse, modify or affirm the order put in issue before it. Doctrine of merger in such circumstances cannot therefore apply.

There are now two decisions of the Supreme Court one approving the Full Bench decision of the Calcutta High Court that when an application to condone the delay in presenting appeal is rejected and consequentially the appeal is dismissed, the order rejecting the Appeal is only an incidental one and not a decree, and another decision approving the decision of the Full Bench of the Kerala High Court that when an application for condoning delay in presenting appeal is rejected the consequential order of the Appellate Court is a decree against which an appeal under S. 100 of the CPC can be maintained. Which of the two decisions is now the law of the land under Art. 141 of the Constitution of India? Which of the decisions is liable to be treated as per incuriam so to enable the Court to ignore its binding nature? Of the two decisions which would prevail as binding precedent? All these questions could have been avoided had the Bench which decided Shyam Sunder Sarma 's case had chosen to consider the legal issues afresh in the light of the earlier decisions of the Supreme Court and arrived at a firm conclusion either affirming or overruling the decision in Ratansingh's case, instead of resting its decision on the decision of the Full Bench in Thampi's case.

New Experiment with Law Clerks -- A Useful Assistance to Judges

(By Jacob P. Alex*, Advocate High Court of Kerala)

".......The Supreme Court has introduced the system of Law Clerks-cum-Research Assistants, one each being attached with every Judge so as to assist in research work which will improve the quality of judgments and also accelerate the decision making process..."1observed the Chief Justice of India. This is an eloquent testimony to the role of Law Clerks behind the bench. But who is a Law Clerk? What is a Law Clerk's Role? This article provides an introduction on concept of Clerkship by detailing the functions of a Law Clerk in Judge's chamber, the benefits of having a Law Clerk and also proposes the idea of introducing Clerkship in our High Court.

Law Clerkship, reportedly originated in 1875 in the United States of America, when Horace Gray, Chief Justice of the Massachusetts Supreme Court hired a young graduate of Harvard Law School to be his law secretary for research and drafting assistance. When he was appointed to the United States Supreme Court in 1882, Justice Gray continued the practice that was later institutionalised by Congress in 1886. The tradition of hiring judicial clerks from the leading law schools grew in the US Supreme Court, and the role of these clerks expanded. They screen cases, draft opinions, and reportedly have a significant influence on the course of American jurisprudence 2-. Canada, Australia and many European countries already have in place an institutionalized clerkship scheme. In Germany there is infact a system by which Law Clerks are appointed on a permanent basis. Almost all international judicial bodies like the International Court of Justice, the European Court of Justice, the International Criminal Court and many UN Tribunals employ law clerks.

A Law Clerk is a young law graduate, who closely works with a Judge by assisting him with his caseload. This temporary assignment will normally last for a year or two. The duties of a law clerk, vary from Judge to Judge and Court to Court, but includes conducting legal research, preparing case notes/summaries and pre-hearing notes, writing speeches and even assisting the Judge in drafting judgments. Law clerks serve as confidants and assistants to Judges, always by their side to assist them in discharging their duties. In the privacy of their chambers, Judges exhaustively discuss cases with Law Clerk and rely on clerk's legal research, writing and editing skills. The law clerk works in the library, studies papers and magazines, and browses the internet for the Judge. In return, he receives an exciting one-on-one education from a stellar member of the legal profession who is a knowledgeable jurist in a lofty position of influence and authority. This heady experience is one that is unmatched by any other in legal employment. Considering the increasing work load and much needed research assistance to Judges, the Supreme Court of India started to appoint Law Clerks-cum-Research Assistants with Judges on a regular basis from 2002 onwards.

Selection process of law clerks in the Supreme Court of India:

In view of the close association that usually exists between the Judge and his law clerk, the law clerk's action, both professional and personal, reflect upon the esteem in which the judiciary is held. The law clerk owes the duty of confidentiality concerning everything that occurs in the process of decision making. So the selection process therefore is very important. Now each Judge in the Supreme Court selects his own law clerk from a panel of graduated, students recommended by the National Law Schools. The Judges go through the dossier of

each candidate and will choose one, who will assist the Judge in the position of a Law Clerk. Some Judges may call the students for interview and selection will be made thereafter. Judges prefer students with proven research and writing skills. Students who have quality publications to their credit are preferred with significant emphasis on their rank in class. In addition, Judges place great weight upon students's achievements in various extra curricular activities such as Moot Courts, clinical programs and internships.

Responsibilities that could be shared by a Law Clerk

In the Supreme Court, a Law Clerk's function is more academic in nature since the work is largely research oriented. Each Judge has his own style of functioning and the clerk will be asked to work accordingly. Hence, the assignments and nature of work of each law clerk depends upon the concerned Judge. Normally the law clerk conducts legal research, prepare case notes/summaries, drafts and edits judgments and prepares speeches for the Judge. In an ideal circumstance a law clerk discharges the following functions:

Perform legal research:

The most constructive function of a law clerk is to conduct legal research for the Judge. Library research, surfing the Internet and searching legal databases helps the Judge to save considerable time in the decision making process. It also improves the quality of judgments, which is backed by valuable research data. This is necessary because lawyers may only cite authorities to advance 'their' case. The law clerk then places up-to-date case law and other allied legal literature before the Judge. Quite often a Judge tends to entertain a different thought on the matter than that what the lawyers argued. But he may not find time to spend in libraries to search for the relevant book/journal or to browse the net or database for the apt material. Even if they ask the librarian to provide books, the apt authorities may not be placed due to lack of communication with the Judge. This is because a librarian will never take the liberty to ask a Judge as to 'what he is thinking'. Contrary to this law clerk could ask the Judge, ascertain more details of the line of thinking and place the most relevant material for consideration. Based on this law clerk prepares research notes for the Judge on the assigned area. Similarly the Judge can share his views with a law clerk about a case in hand. A Law Clerk could also air his ideas during such discussion. This secluded discussion at a post-hearing stage streamlines the research and shapes the outline of judgment. On many occasions these discussions and subsequently provided research materials will help the Judge to have a new look on the matter in hand.

Now a day, the Courts are confronted with increasingly multifarious and challenging issues that requires exhaustive research with new tools. The information available on the Internet and journals will be gathered by the law clerk for the Judge to address new issues. It is also to be noted that in most cases layers are hired by individuals, government agencies, and business entities to provide them with counsel and to advocate their position. This results in a situation where each party is bound to place authorities favouring their side. The need for Courts to be provided with independent and up to date material for arriving at a conclusion is thus, manifest. Law Clerks can be of invaluable assistance to Judges in procuring such materials.

Drafting Judgments:

One may question the idea of allowing a law clerk to draft judgments. This is mainly due to the skepticism about the system of judicial clerkship. However, law clerks are often called upon to do this task. When a Judge is confident enough and pleased with a Law Clerk's progress, he may ask the clerk to prepare draft opinions. Normally, the law clerk sits in Court at the time of hearing and takes notes on the case. Later with additional research he prepares a rough outline of the proposed opinion and discusses the case with the Judge. The Judge expresses his views on the matter and approves or suggests modifications to the skeletal opinion. The law clerk then prepares the first rough draft of the judgment. The judge peruses it and may suggest further changes. It is quite likely that the Judge may ask the clerk to scrap the draft and work on a totally different line. Sometimes the Judge himself will give the content of the proposed opinion and will ask the clerk to draft it. Or the Judge asks the clerk to draft the initial portion of the judgment i.e., narration of facts, issues involved and the submissions advanced by the counsels. Later, the Judge himself will answer the issues. In other cases the Judges may prepare part of the opinion and ask the law clerk to prepare a rough draft of the remainder. In some instances the Judge may ask the Law Clerk to prepare detailed notes on the necessary aspects of the law for the purposes of utilizing the same while drafting judgments. Similarly the law clerks could be asked to take care of drafting interim orders or directions on petitions after taking instructions from the Judge. In all these situations the law clerk prepares draft or notes for finalization by the Judge. However, the ultimate opinion is that of the Judge and no law clerk will have a say in such matters. What the law clerk is doing is only to assist the Judge to express his opinion by carrying out his direction, thereby saving the Judge's time. Obviously, the Judge himself will lay down law.

Finalizing drafts:

Often Judges themselves dictate the judgment in open Court or in their chambers. In such cases the law clerk's duty is to edit the draft, realign the sentences, check clerical mistakes, cross check facts and citations etc. As all of us know editing is boring, especially one's own work. The law clerk performs this job and also provides additional research back up while finalizing drafts. In any event the law clerk could check all citations, both for accuracy and substance, and proofread the final opinion before placing the draft for the Judge's approval.

Assisting the Judge at oral arguments:

Presently in the Supreme Court there are miscellaneous days (Mondays and Fridays). At least sixty fresh matters will then be listed before each Judge. It is difficult to go through each and every file. Trained law clerks prepare notes on each file or at least in few. Similarly in High Court it would be very helpful for the Judges to have assistance in handling admissions matters. Many times we find that the Judge may not get enough time to study new admission papers as the bundles will be placed before them only on the previous evening. At this stage if the Judge wants to look up a position of law or to find a case law, the Law Clerk provides the necessary assistance. They also provide Judges with oral opinions and written memoranda of law on a broad range of legal topics, review pleadings, and prepare case summaries. Depending on the needs of the Judge, a law clerk may be asked to perform an exhaustive research of all relevant sources before hearing a matter, or to find a quick answer during the course of hearing. Similarly the law clerk could be asked to prepare 'bench-memos' on final hearing matters. Bench memos would be highly useful in Indian Courts, as we do not have a time limit for oral submissions as in American Courts. Memos will help the Judge to have a better grip over the case even at pre-hearing stage. It will help to cut short the discussion of unimportant issues during final hearing or could ask the lawyer for elaborating submissions on a point of law that needs much deliberation.

Preparing speeches and other academic work:

All aspects condensed and terse delivery from a Judge. Of late most organizers of functions expect the written test of speech for publication. On any moderate calculation, to prepare the text of a thirty-minute speech requires half-a-day. The Judge with his busy schedule may not get time to do the necessary research and to prepare the text of a speech. Even if he finds time to do so, it will tax other works. Accordingly the Judge could discuss the context of such speech and the ideas that he wants to convey with his law clerk who will then prepare a draft for the speech. Similarly, research is necessary to deliver a lecture or to present a paper before an academic forum/seminar or to write an article. In such situations foot notes and bibliography needs to be added to the text. A Judge may not get time to do this time consuming jobs. Law Clerks may also assist Judges in preparing scholarly works, and other presentations on law-related topics. Similarly the task of writing reviews, prefaces for books, messages for functions, preparing background papers/notes for conferences, etcetera could be delegated to the law clerk. Again it must be noted that finalizing any such work is always the Judge's priority.

To be a good friend:

The relationship between Judges and their law clerks is an intensely personal collaborative effort with loyalty and co-dependence that are unparallel in any other setting. Personal relationship with the Judge is an important aspect in clerkship. More than being a 'staff' of the Judge, a clerk is a 'family member'. To be all this he should be a good companion for the Judge to talk or to share light moments. This is because a Judge may not find a good friend to be with him always. And it is not possible for a Judge to be so. But is it not a nice idea to have someone with to watch a cricket match or admire a stage performance? And a young law clerk, who will only be at the age of Judge's child, could be that 'someone'.

The Value of Judicial Clerkship

In addition to being a key credential for any future career in law, a judicial clerkship is itself a valuable life experience. Clerkship offers a unique opportunity to view and participate in the work of a Judge's chamber. It will help the clerk to gain a perspective on how Judges make decisions and how the system of justice operates. It is also once-in-a lifetime prospect to gain first-hand knowledge of current legal issues and to contribute to the law through the Judge's decision making and opinion writing. In the courtroom as well, the exposure to numerous lawyers' oral and written litigation styles, both good and bad, will help the clerk to develop his own perspective towards law and litigation.

The clerkship enhances one's research, writing and analytical skills. The name of "his" Judge will stay with the clerk for the rest of his life. Ultimately, the law clerk will gain a lifelong mentor who will take an interest and assist in the development of his future. There are few professional relationships that are more intimate than that between a Judge and his or her law clerk. Other than the Judge's Secretary, the law clerk spends the most time with the Judge during the workday. Many clerks are fortunate to have a Judge who spends time teaching and guiding them as part of this special relationship. Given this closeness and professional 'grooming' by the Judge for the benefit of his or her law clerks, Judges seek to keep individuals with whom they can develop a pleasant rapport. The opportunity to experience and undergo clerkship will provide young law graduates with the chance not only to view, but also to become an integral part of the inner workings of the judiciary. Clerks who win the confidence of their Judges find that their opinions are regularly sought on the proper handling and disposition of matters that come before the Court.

Exploring the Possibility of appointing law Clerks in our High Court:

To the best of author's knowledge, no High Courts employ Law Clerks in India. But it is worth to experiment clerkship in our High Court considering the increasing workload of Judges. The work of a law clerk depends upon the Judge with whom he works. In all situations the clerks could be asked to prepare notes on each file that comes up for admission or final hearing. Similarly research papers could be prepared for the Judge on necessary topics that requires detailed study for the purpose of writing judgments. Law clerks could also take argument notes, check the facts of cases, cross check the citations, search for more case laws and other legal literature, proofread the drafts, prepare the drafts of interim orders etc. All this will considerably help the Judge to save much time.

Proposed Method of Selection:The Law Clerks will normally be appointed for a temporary period of one year. The selection of Law Clerks in High Court could be done in the lines of the system followed in the Supreme Court of India. The National Law Schools and selected Law Schools in our State could be asked to submit a panel of their best students, both graduated and post graduated. The clerks may be short listed from that panel based on their class rank, quality of publications and other writings, research abilities, performance in Moot Courts, involvement in extra curricular activities, references from teachers etcetera. The individual Judge may then interview the short listed candidates before selection. On an experimental basis, five or six graduates could be initially selected to assist few Judges. A short training may also be given to such candidates. After obtaining a first hand experience by keeping such Law Clerks for a year, the Judges themselves could decide on the future of clerkship. Remuneration and other terms of appointment could be easily worked out on administrative side. Considering the prestige and immense value of clerkship, young graduates would definitely welcome clerkship as a notional extension of legal education.

Clerkship is intentionally recognized as a valuable factor that immensely improves the justice delivery system by providing valuable assistance to Judges. The system has stood the tests of time in American Courts. It is effectively functioning in many other countries and with international judicial bodies. Its trial in the Supreme Court of India has amply proved its value. With the immense improvement in field of legal education over the past fifteen years, Judges in Kerala would have no dearth of graduates to appoint as effective Law Clerks.

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*Author earlier served as Law Clerk-cum-Research Assistant in the Supreme Court of India between 2002-04 with Hon'ble Mr. Justice S. Rajendra Babu - former Chief Justice of India.

1. ENVISIONING JUSTICE IN THE 21ST CENTURY (Keynote address delivered by Justice R.C. Lahoti, the Hon'ble Chief Justice of India at the Conference of the Chief Ministers of States and Chief Justices of High Courts, Vigyan Bhavan, New Delhi on September 18,2004). See 2004 (3) KLT Journal page 70 to 75

2. A Different Diversity: Judge Thomas Brennan on Reforming the Supreme Court law Clerk Selection Process; full text available at www.cooley.edu/Faculty/bernnan.htm(last visited on 23-02-2005)

KERALA HIGH COURT ON CO-OPERATIVE LAW --

A DIGEST OF CASES -- 2004

(By R. Muralidharan, Secretary, Pondicherry Public Servants Co-operative Society, Pondicherry)

It is amazing that Kerala continues to contribute, inter alia, in the field of co-operative law and it is evident from not from the mere number of cases decided by the Kerala High Court but more interestingly from the trend it sets. Kerala High Court is, therefore, a trendsetter in every respect. In this article, the judgments rendered by Kerala High Court on co-operative law are discussed chapter-wise. The Kerala Law Times published these judgments during the year 2004. The sections and rules quoted in this article are that of Kerala Co-operative Societies Act and the Rules made thereunder.

Membership and General Body

Whether failure to pay additional share value would result in cessation of membership is decided in negative in Kadakam Service Co-op. Bank v. Narayana Bhat, 2004 (2) KLT 179, by the Division Bench. The Court held that the only effect of the member's failure to pay the additional share value is that until he pays the additional share value, he will not be entitled to exercise any of the rights of a member of the bank. Since the first respondent has not been removed from the membership either under R.16(3) or under R.16(4), the Bank could not have refused to accept the difference in share value, even though it was submitted by him belatedly. At the same time until he pays the additional share value, the first respondent cannot exercise the right of a member. The expression "such payments to the society in respect of membership" found in R.19 includes the extra amount to be paid by a member on account of any subsequent amendment to the bye-laws increasing the share amount.

Holding that the representative general body has power to amend the bye laws and dismissing the Writ Appeal, the Division Bench in Anil Akkara v. Registrar of Co-op. Societies, 2004 (2) KLT 805, has ruled that exercise of any power by the representative general body is subject to such restrictions and conditions as may be specified in the Rules or the bye laws. Even though the power to make or amend the bye laws of a society is ordinarily vested in the general body, where a representative general body has been constituted as per S.27(2), the representative general body is competent to amend the bye-laws of the society except the bye-laws relating to its own constitution or powers and the exercise of such power to amend the bye-laws is only subject to the restrictions and conditions, if any, specified in the Rules or the bye-laws. By impugned amendment, the term of office of the committee was enhanced from three years to five years and the said enhancement was made applicable to the existing committee. There is no merit in the contention that the representative general body of the bank had no power or competence to make the impugned amendment to the bye-laws which were registered by the Joint Registrar.

In the absence of any enabling provision in the bye-laws, only the general body can propose amendment to determine the area/constituency to be reserved is the decision of the Division Bench in Udayakaran v. Ahammedkannu, 2004 (2) KLT 969. The authority competent to make an amendment to the bye-laws is the general body of the society. S.27 of the Act also says that subject to the provisions of the Act, the Rules and the bye laws, the final authority of the society shall vest in the general body of the members. Therefore, in the absence of necessary provisions in the Act specifying the authority and the criteria to determine the ward/ constituency for reservation under S.28A, it is for the general body of a society to make necessary provisions in the bye-laws of the society for reservations contemplated under S.28A. Managing committee is not competent to determine the area/constituency to the reserved unless specified in the bye-laws.

If the committee of the society did not convene the special general meeting, it is open to the petitioner to approach the Registrar under sub-s.(2) of S.30. By merely marking a copy of the representation to the Deputy Director of Dairy Development, the petitioner cannot contend that a representation was submitted to the authority and he has to act upon it. This decision is from Kanjoor Ksheera Ulpadaka Co-op. Society v. Pappachan, 2004 (3) KLT (SN) 94.

Management

R.44(l)(i) prohibits persons associated with running business identical to those run by the society from being elected to the managing committee. The principal executive of a company running a particular business is disqualified to be in the managing committee of a co-operative society running the very same business, vide Pushkaran v. Joint Registrar of Co-op. Societies, 2004(1) KLT (SN) 3.

A member who has committed default cannot take shelter that his loan was a secured one and the society was entitled to set-off the loan against his property. In Surendran Nair v. Stale of Kerala, 2004 (1) KLT 407, before the Division Bench the sum and substance of the contention of the appellant is that the Bank could have recovered the debt by selling the hypothecated properties. The appellant who was in default to the bank is not entitled to contend that the Bank could have realized the amount due to it in accordance with law. It cannot be a defence to a petition filed for disqualifying him under R.44(2)(c). The question is whether the appellant was 'in default' or was a 'defaulter' as defined under the Rules at the relevant time. When the appellant was in default to the bank on the date of election, he is disqualified.

The disqualification is attracted not only when a member of a particular society is in default to that society but also when he is in default to another society of which he is not a member.

The Division Bench in Porinchu v. Joint Registrar, 2004 (1) KLT 281, has observed that an interim Administrator appointed under S.33 has no power to enroll new members. The law was, thus, declared by the Apex Court in T.A. Kultappan's case, while approving the judgment of the Full Bench in Hassan's case, 1998 (2) KLT 746 (FB). The High Court has no power of prospective overruling. Once it is held that the Administrator appointed under S.33 of the Act has no power to enroll new members, no court other than the Hon'ble Supreme Court can hold that the law declared will be applied prospectively.

While interpreting the observations in Cherthala Agricultural Rural Devpt. Bank's case, 2000 (1) KLT 730 (FB), the Division Bench has held that the second Full Bench has moulded the relief on the fact of the cases considered by it and did not lay down any general proposition that in all such cases membership of persons enrolled by the Administrator before Hassan's case cannot be challenged.

In the matter of the competency of the Administrator to appoint new members, couple of decisions rendered by the Court is really path breaking. The Court is of the view that the dictum of the Apex Court and Full Bench cannot be applied mechanically to all cases. In Aomanathan v. Dy. Director, Dairy Devpt. Society, 2004 (2) KLT 887, an Administrative Committee had been appointed so as to revive an ailing society. Only by enrolment of new members, life could have been injected to it. To contend that even though specifically appointed for the said purpose the committee could not have enrolled members would be begging the question. As the situation revolves on a vicious circle, it requires to be clarified that at least in certain cases, we have to recognize the powers of an Administrator for enrolling members. Otherwise, the result would have been that the purpose, for which the Administrative Committee had been appointed, would have got itself defeated.

In Shaji v. State Co-operative Elections, 2004 (2) KLT 1084, the Court has held that in appropriate cases, administrator will have to be conferred with power to admit members, taking note of the contingencies. When the administrator is in office for over two years, it is not conceivable that for years together, every operation has to be kept in hibernation. The receipt of application and grant of membership are regular and routine business transactions and does not amount to any matter of policy. The indication of the Act is quite otherwise. The parameters of membership have been laid down by S.16 and so long as a person satisfies it and satisfies the conditions of the bye-law. The decision is administrative in character. To allege that it may change the character of a committee to be elected in future is pure absurdity, totally irrelevant and cannot be countenanced. One should not miss the woods by only noticing trees.

The effect of amendment made in S.20 of the Act, permitting all the members to participate in the election of the society was brought out by the Division Bench in Rajendran v. State Co-Operative Election Commission, 2004 (1) KLT 1026. The Court found that pursuant to the amendment of S.20, no corresponding amendment was effected either in R.28 or in R.35A(4). Even then as per the proviso to R.28 and 35A(4), only the active members shall be eligible to vote. But the said provisions in the Rules have no legal force, as they are contrary to the provisions contained in S.20 of the Act. Therefore, notwithstanding the apparent conflict in the Act and the provisions in the Rules, every member of a society shall have one vote in the affairs of the society.

Circular issued by the State Co-operative Election Commission directing that in the case of preliminary/final voters list published on or after 4.5.2002, the election shall be conducted only after including all the eligible members of the society in the voters' list is valid. Election proceedings stopped after publishing the preliminary voters' list and before publishing the final voters list due to amendment of S.20 giving voting rights to all members and not active members alone. The society cannot continue the election proceedings from the stage where it was stopped. It is necessary to pass a fresh resolution and a fresh notification.

Supersession of the Committee

It is consistently seen that the Kerala High Court never minces the words when the supersession of the committee is found to be a colourable exercise of power. The following decisions say it all.

The Division Bench in Bhaskaran v. Jose Joseph, 2004 (1) KLT 91, has laid down that having regard to the provisions in the Act and the Rules, it cannot be said that merely because a notice under S.32(l) of the Act has been issued proposing to supersede the Board of Directors, the Board cannot pass a resolution under R.35A(1) of the Rules, fixing the date, time and place for the conduct of election to the new committee. It should be remembered that even if a notice under S.32(l) of the Act has been issued, the Registrar can drop the proposal to supersede the Board after considering the explanation offered by the Board. Therefore, issuance of a notice under S.32(l) of the Act does not disentitle the Board to exercise its rights or powers under the Act and Rules.

What is the real import of consultation with financing bank and circle co-operative union is succinctly brought out by the Division Bench in Sahadevan v. Padmariabhan, 2004 (1) KLT 192. The consultation contemplated under sub-s.(2) of S.32 of the Act can be effective and meaningful only if the show cause notice issued under S.32(l), the explanations/objections given by the committee to such show cause notice and the tentative findings arrived at by the Joint Registrar after considering such explanation/objections are also forwarded to the Financing Bank and the Circle Co-op. Union requesting them to offer their views on the proposal to supersede the committee. When such a consultation process has not taken place, the provisions of sub-s.(2) of S.32 have been violated. A mere forwarding of the show cause notice to the Financing Bank and Circle Co-operative Union is not sufficient. To creep up this conclusion, the decisions reported in AIR 1982 Ker. 12 and 1997 (2) KLT 85 were relied on.

When the order of supersession is declared illegal, subsequent election is to be nullified. This is brought out in Sooryanathan v. State of Kerala, 2004 (1) KLT 383. The Managing Committee was removed from the office by an illegal order. That illegality has been declared by the Government. Therefore, the subsequent election and the assumption of charge by the present committee being dependent proceedings must fall to ground in view of appellate order of the Government.

In the said case when the delay in disposal of appeal was questioned, the Court held that the petitioner who is a stranger couldn't complain of the delay in disposing of an appeal. The delay between hearing and passing final orders is considered as an illegality for violating the principles of natural justice. Violation of the principles of natural justice gives rise to a cause of action only to the parties concerned and not to a stranger to the proceeding like the petitioner.

Where the erstwhile committee has committed serious lapses and the President and majority of the Board Members are re-elected, the new committee can be superseded if the new committee has not rectified the faults and lapses, vide Mohanan v. State of Kerala, 2004 (2) KLT 873.

Dispensing with notice should be only an exception and cannot be converted as a routine. This word of caution is given in Mohanachandran Nair v. Andoorkonam Service Co-op. Bank, 2004 (2) KLT 1062. Under S.32(l) the Registrar has to satisfy himself as to the merits of the case, whereas under S.32(3) he has also to form an opinion as to the impracticability of the procedural formality of giving an opportunity to the committee to state its objections. Notice is not an empty formality to be casually dispensed with. It is a notice to state objections. Therefore, only if in view of a situation of immense or emergency which cannot brook the delay due to notice and situations where it is for feasible or practicable to service notice, the same can be dispensed with. In any case, being an extremely rare situation, the Registrar should record the reasons for the opinion on impracticability. In the instant case committee was superseded on the allegation that directions of the judgments are not implemented. Judgment was taken in Writ Appeal and the appeal was filed in time. In view the above, the Court has set aside the order of supersession and the committee was reinstated.

Arbitration and Execution

In Trivandrum Co-op. Agricultural Rural Development Bank v. State of Kerala, 2004 (2) KLT 68 (SN), it was held that the possession of an award could not have operated to the disadvantage of a creditor. R.52 prescribe the methods by which enforcement could be carried out as specified in S.37. Since the rights are secured by S.37, a defaulting person cannot be permitted to get away out of the liability, especially when he had entered into an agreement fully knowing the consequences that arose from such agreement.

In Umadevi v. Asst. Registrar, 2004 (3) KLT 450, the question before the Division Bench was whether the dispute should be only in respect of a matter touching the business of the society. In this case, the society was letting out room to one of its members and the latter committed default in the payment of rent. It is a dispute for the purposes of S.69(l). Such a claim need not arise from any matter touching the business of the society. According to S.2(i) a "dispute" includes a claim in respect of any sum payable to a society, whether such claim be admitted or not. It is not stated in S.2(i) that such claim should arise from any matter touching the business of the society. In S.62(2)(a) also it is not stated that the claim by the society for any demand due to it from a member should be in respect of a matter touching the business of the society.

Revision and Review

The delay in presenting a Revision Petition can be stated in the Revision Petition itself and for good and sufficient cause the Tribunal can condone the delay. It has been held in Thajuddin Shammer v. Secretary, Coastal Urban Co-op. Bank, 2004 (1) KLT 909, that if a Revision Petition is filed beyond a reasonable time limit, say 90 days, the petitioner should explain in the revision, the reason for the delay. Since there is no limitation prescribed, there need not be any separate petition to condone the delay. The facts, which will explain the reasons for the delay, should be pleaded in the Revision Petition. If the Tribunal is satisfied that the petitioner was prevented by good reasons from approaching it earlier, the revision can be entertained.

And some more

Following the decision of the Apex Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi, 2001 (1) SCC 98, it was held that the Kerala State Co-op. Employees Pension Board comes within the purview of the Consumer Protection Act, 1986. The Board is providing service and retired employees of co-operative societies who are members of the Scheme are consumers under the Act, vide Kerala State Co-op. Employees Pension Board v. Consumer Disputes Redressal Forum, 2004 (1) KLT 111.

In the matter of obtaining a certified copy, the Division Bench in Abbas v. Joint Registrar of Co-operative Societies, 2004 (1) KLT 182, has held that R.24(l) provides that any person may obtain a certified copy of any public document not being a document privileged under the Indian Evidence Act, filed in the office of the Registrar, on payment of fees prescribed. He shall be entitled to copy only when he satisfies the Registrar that he requires it to seek redress in any matter in which he is aggrieved or for any other lawful purpose. When the impugned report is not a privileged document, R.24 does not in any way bar rendering a certified copy of a public document. More so, it is only a report obtained on the petition submitted by the petitioner himself.

The Act confers powers under S.66 to supervise the functioning of the society. The Registrar has got ample powers to ensure that the society is functioning in accordance with the Act, Rules and its bye-laws. Further R. 176 expressly confers power on the Registrar to rescind any resolution of the society, which is passed in violation of the provisions of the Act, Rules or bye-laws or which is against the best interest of the society. From the sweep of the power, the resolutions concerning the service matters of the employees are not excluded. (Poonjar Service Co-op. Bank v. State of Kerala, 2004 (1) KLT (SN) 40).

R.185 governs the grant of exemption from the prescribed qualification. The Government cannot issue a circular prescribing how the power under R.185 should be exercised. None of the statutory provisions also enable the Government to issue such a direction. The bank is authorized to take the decision and the JR is authorized to grant approval to the said decision. These authorities are entitled to exercise these powers uninfluenced by any direction issued by the Government. Of course, the Government can amend the Rules, providing guidelines for grant of exemption. (Kuttipuram Service Co-op. Bank v. State of Kerala, 2004 (2) KLT 73)

In Shanmukhan v. Jt. Registrar, 2004 (2) KLT 1015, it was held that the petitioner is eligible to get subsistence allowance, as provided in the Kerala Service Rules, in the light of R. 198(6). The said right to get subsistence allowance does not depend upon the gravity of the charges levelled against him. The retrospective compulsory retirement cannot be pressed into service, as a ground for denial of subsistence allowance.

Application under R.176 does not lie to rescind a decision of a sub-committee of the society, Vide Abraham v. Elikulam Service Co-op. Bank, 2004 (3) KLT 25.

IS THERE MUCH VULGARITY...........?

(By Anzil Zachariah, Advocate, Pullad)

An MMS of two school students engaging in oral sex was the topic of day. Hue and cries are now raised that fashion shows and cinematic dances held in colleges and schools is pornographic and problematic. It is decreed as obscene, derogatory of womanhood and patently in bad taste. Our public morality is falling down. A lot of ink has been poured and throats have become sore demanding urgent passage of banning mobiles and internet cafes and to strengthen the present laws and especially cyber laws. The article attempts to find an answer whether such laws are necessary to achieve morality?

The State may impose restrictions on internet cafes. The authorities may put curbs on the use of mobile phones in schools and colleges. A number of questions sprinkle in our mind. Can it restrict the mushrooming of internet cafes in the State? Can it tackle cyber crimes on campuses? Are cafes and campuses only centre for assessing and disseminating pornographic materials? Is there only vulgarity on cafes, campus and television?

In the pornographic debate the law enforcement machinery i.e., the State acts as the super cop of morality. The law embraces still the fog of Victorian morality. In the Victorian era sex was shameful and to be hidden. The main difficulty is to adjudicate on whether a publication, photograph or any literary form is obscene or not. There is very little agreement as to exactly what is obscene. The offence of indecent representation or obscenity was made punishable by the Indian Penal Code. Ss.292,293 and 294 of the Indian Penal Code are laws relating to obscenity in India. A book, pamphlet, paper writing, drawing, painting, representation, figure or any other object is considered obscene if it is lascivious or if it tends to deprave and corrupt persons who are likely to read, see or hear the matter contained in it (S.292ofIPC.).

The Indecent Representation of Women (Prohibition) Act, 1986 was enacted to have a separate legislation to effectively prohibit the indecent representation of women through advertisements, books and pamphlets. 'Indecent representation of women' means 'the depiction in any manner of the figure of a woman, her form or body or any part of it in such a way as to have the effect of being indecent, or derogatory to. or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals".

The legal provisions dealing with obscenity are ineffectual. S.292 of IPC and S.3(7) of the Indecent Representation of Women (Prohibition) Act did not define obscenity. The section leave a lot to the Judges to decide what is obscene. Obscenity definitely being a subjective matter is difficult to explain. The Supreme Court and other Courts in India adopted the test of obscenity laid down by Cockburn, J. in Hickinson case: ".......Whether the tendency of matter charged as obscenity is to deprave and corrupt those minds are open to such immoral influences and.......k is quiet certain that it would suggest the minds of the young......thoughts of most impure and libidinous character". In the case of Virendra v. State of Punjab (AIR 1957 SC 896) the Supreme Court declared that obscene means "offensive to modesty or decency, lewd, filthy and repulsive".

There is no clear-cut definition for obscenity. Radical changes in our social attitudes and community standards alter the concepts of obscenity. What was considered as unethical and illegal in past may not be the same in 21 st century. The change in attitude towards D.H. Lawrence's novel Lady Chatterley's Lover is a classic example. The Supreme Court of India in Ranjit Udeshi v. State of Maharashtra (AIR 1965 SC 881), condemns the said novel as obscene. In England too a case was filed under the Obscene Publication Act, 1959 (R. v. Penguin Books, 1961) . Later an expurgated version appeared in America in 1959 and in Britain in 1960. The novel is now prescribed as a study text for graduate and post graduate literature students.

Another controversial issue raised is who is best qualified to interpret what is vulgarity. Who decides what is moral and good for community? Can the Court be an arbiter of good taste? The Supreme Court in Samaresh Bose v. Amal Mitra provided that in judging the question of obscenity the Judge should place himself in the position of the author, the reader of every age group and there after to apply his judicial mind. The remark made by Justice Stable poses an apt question:— Are we (Judges) to take our literary standards as being the level of something that is suitable for 14 year old girl"? (R. v. Seeker and Warburg (1954))

In the process of applying the test of obscenity the arguments are always based on mere political discourses. The definition of obscenity, freedom of speech and expression and others fill the agenda of discussion. Unfortunately the attention of legal minds are never focused about gender relations, women and children, sexual and reproductive health needs of young people and others. The right of an adult to experience the world, the right of the gays, lesbians and bisexuals to see their own sexuality represented in the movies and literature were always excluded from the framework of discussion.

In reality the nudity and porn literature is problematic and vulgar to adults rather than children. Only a pedophile can find anything of a sexually provocative nature in pictures of naked children. It is an open confession that our responses to images of nudity or semi nudity cannot be trusted and are liable to corruption, which will allow perverted and depraved sexuality to emerge from the sophisticated self. No longer can one boast about the control over sexual desires.

The banning of mobiles and cinematic dances would just create opportunities for more national and international seminars, and pious declarations. How would the law be enforced? Would it penalize the college authorities where the cinematic dance is held? Would it fine parents for sending their children to school with a mobile? How would the poor parents pay the fines? Would it then imprison them? Just one parent or both?

Would the law ever be properly and consistently applied? Who would bear the burden of arbitrary enforcement? The proponents never raise the issues of enforcement. They want to claim to have done something for the argument sake without really doing anything just by passing a law.

One must not forget the distinction between laws and morals. No society has been able to legislate moral behaviour. We are no different. Our experience with other good-intention laws against child labour, dowry and other social ills does confirm this outcome. Those who want to practice these have rarely been deterred. And any positively development in these areas could hardly be attributed to these laws.

Total ban is impossible. The world history of prohibition stands as a guide. A total ban on the movies, magazines, mobiles, cafes is not practical. The legal avatars of anti porn movement succeed in criticizing porn by demonizing, criminalizing and illegalizing it.

Criminalizing porn only drives the business underground. The fruits of illegality will be crime, exploitation, black market. There will be rise of the mafia, street violence to capture markets, corruption of the police, legal system, and the bureaucracy.

In the final analysis, prohibition has done more damage, not just to the treasury, which is of the least consequence, but to families and communities, the alleged beneficiaries of the ban. The law of unintended consequences is far more potent in case of good intention laws.

The case study of heroin is a good illustration. Until the seventies any doctors in England could prescribe heroin for patients. There were fewer than 500 addicts. In 1971 heroin was outlawed. Today the number of heroin addicts in England is beyond belief. The black-market exploded and dealing heroin became a profitable business.

In short, the law looks at technology and media of 21st century with the punitive system of 19th century to create a very suppressive and conservative sexual morality. The police and legal forces wrongly assume its role as a super cop of the morality and their task is to bring culprits to Courts thereby pitting officials against media. A complete transformation is required in our jurisprudential thought where the agenda of the Judiciary, Censor Boards, media representatives should be to strengthen civil society. If not, the argument continues .... and it remains forever as a matter of controversy.

Novel Chief Examination (O.18 R.4 of Amended C.P. Code) -- Implications Examined

(By M.V.Shanker Bhat, Advocate, Mangalore)

Prologue:

1. Ever since the establishment of law courts of British system in India, trial Court lawyers knew examination-in-chief only as mentioned in Ss. 137 and 138 of Indian Evidence Act, which itself is of the year 1872. After 130 years of accustomed practice, suddenly, Parliament enacts the novel method of Chief Examination by affidavit. This change is brought about in the name of avoiding delay in legal proceedings. An attempt made to challenge the vires of the amendment having failed before the Supreme Court in the case of Salem Advocate Bar Association1  until there is another decision reversing it, - as it is not uncommon in our system (!),-- or until there is legislative change either in State level by each High Court by virtue of its rule making power under S. 122 of C.P. Code, or the Parliament itself rectifies, the novel procedure of chief examination has come to stay. Its ramifications are examined in this composition.

2. Already the High Courts of Kerala2,Karnataka3,Bombay4,  Rajasthan5  and Delhi6  have rendered rulings on his subject. High Court of Madras has now contributed its share7

What is the change in law?

3. One of the major changes in the amendment to C.P. Code is found in O.18, R.4, relating to recording of evidence. The Section relating to Repeal and Savings in the Amendment Act does not otherwise provide for it. Being procedural change it, therefore, applies to pending proceedings.

4.O.18, R.4, originally existed thus: "The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge". Rr. 5 and 13 of 0.18 indicated how the evidence should be taken in appealable and unappealable cases respectively.

5.O.18, R.4 was first amended in 1999 in a particular way. In effect that Amendment laid down that the evidence in chief shall be by affidavit; and the cross-examination shall be on commission.

6. But in the rule enacted during 1999 there was a Proviso to the effect that the Court may, for reasons to be recorded in writing, direct that the evidence of any witness shall be recorded by the Court in the presence and under the personal direction and superintendence of the Judge.

7. After the agitation of advocates, when the Parliament brought about further corrective amendments during 2002, this Proviso was taken away. In this amendment, while retaining the provision of chief examination by affidavit, the cross-examination could be done either in Court or by commission. The amendment provided for the decision by the Court regarding the proof and admissibility of the documentary evidence introduced by affidavit. But the amendment of 2002 omitted the Proviso mentioned above. The sub-r.(3) of R.4 contemplates the Court (or the Commissioner) recording evidence either in writing or by mechanical process, in the presenceof the Judge. (Please note that the rule uses the word 'mechanically' in the presence of the Judge," probably knowing what actually happens in real life! (This is in lighter vein).

8. If the old R.4 contemplated open Court proceedings, the amended rule has, in effect, converted the recording of evidence in chief as office proceedings.

Imagine the situation, as where the affidavit can be attested by Advocate, (eg. in Tamilnad, Kerala) the chief examination will partake the character of a totally private affair! How far, in the light of the provisions contained in the Oath Act of 1969, such affidavit can be treated as evidence, is very doubtful. But that is not relevant now.

Contentions advanced and decided so far:

11. In Salem Advocate Bar Association case it was argued that the witness summoned may not oblige to give affidavit and hence the rule is unworkable. The Supreme Court, after making a distinction between a witness who attends on summons and a witness who may be brought to Court by a party, stated that with regard to summoned witness the principle incorporated in R.4 can be waived.

In effect, the Supreme Court has asked us to read the R.4 by adding the phrase, "except when the witness appears by summons issued under 0.16 R.1", after the phrase "every case", occurring in it.

12. The cases decided by the various High Courts, cited above, will disclose that under different circumstances, by citing existing R.5 of 0.18 of C.R. Code the propriety of R.4 was attacked. It is the contention that R.5 lays down that in cases in which an appeal is allowed, the evidence shall be taken down or written or recorded by mechanical process as directed by and in the presence of the Judge. The amended R.4 requires that in 'every case' the examination in chief of the witness shall be on affidavit. Therefore, there is conflict in the rules.

13. Except the High Court of Rajasthan, all the other High Courts have, broadly speaking, adopted the view of reconciling R.4 with R.5 by applying the rule of harmonious construction. According to the said view, the R.5 will become applicable from the stage after receiving chief examination by affidavit. That is, when the cross-examination takes place the procedure of R.55 will become applicable. Rajasthan High Court has taken the view that R.4 has to be read with R.13 relating to unappealable cases, and not relating to appealable cases. The Rajasthan view has been referred and dissented by other High Courts. The recent decision of the Supreme Court in the case of Ameer Trading Corp. Ltd8  approves the above view of majority of High Courts and disapproves the Rajasthan view.

14. On careful reading of all the rulings one can make out the strain with which the Courts tried to reconcile the rules, all in the name of speedy trial.

15. One aspect, which may be mentioned in support of such view, is that R.4 refers to the manner of leading chief examination and Rr. 5 and 13 relate to the method of recording oral evidence, depending upon the nature of the case. The manner and method of recording evidence is not mentioned in the sections of the C.P. Code.

16. The sub-r.(3) of R.4 as amended indicates the mode of recording oral evidence, either by the Court or by the Commissioner. It is apparent that the old Rr. 5 and 13 were not taken note of while framing the new R.4. The new R.4 is sufficiently comprehensive to cover both manner and method of the chief examination and cross examination and admissibility of the documentary evidence. Actually Rr. 5 and 13 of 0.18 have become otiose. Therefore, the end result achieved by the Courts cannot be found fault with.

The real objection for retaining amended R.4 stated:

17. R.4 violates the scheme of trial in courts as per Evidence Act. Therefore, it is not valid. Chief Examination by affidavit also gives unfair advantage in the manner of trial.

18. It may be noted that the entire Code of Civil Procedure does not deal with the subject of proof of facts in civil cases. Though S.30 of the Code deals with issue of summons to witness and proof of facts by affidavit, it does not contain any other section dealing with the manner and method of giving evidence in suits.

19. 0.18 of C.P. Code really owes its origin to S.135 of the Evidence Act, which was enacted in 1872, much before the Code of 1908. Chapter X of Evidence Act deals with the various provisions relating to the examination of witness. S.135 deals with the order of production and examination of witnesses. It lays down that the law and practice for the time being relating to Civil and Criminal Procedure respectively, shall regulate the order in which witnesses are produced and examined and, in the absence of any such law, by the discretion of the Court. S.136 indicates that the Judge shall decide the admissibility of evidence. Ss. 137 and 138 deal with the question of examination-in-chief, cross-examination and re-examination, and its order. S. 154 deals with treating the witness as hostile and allowing him to be cross-examined by the party calling such witness. Under S.161 the adverse party has got the right to insist on production of any document, which might have been used for refreshing the memory of the witness when he gave evidence, as contemplated by Ss. 159 and 160. In substance it may be stated that the "evidence" which enables the Court to give decision consists of oral evidence as collected in the manner contemplated by the Evidence Act. (We are now not concerned with documentary evidence at this stage of the discussion.)

20. S.l of Evidence Act clearly excludes Affidavits from the purview of the Act When R.4 was amended, this important aspect was totally overlooked.

21. No doubt, in the Civil Procedure Code, as per S.30 and O.19, there always existed provision for proving facts by affidavit. This could be done by specific order of the Court as contemplated by O.19, R. 1 of the Code. But the proviso to R. 1 clarifies that if the witness is required to be cross examined, and such witness can be produced, then the Court shall not allow the affidavit to be given for proof of fact. In other words, where there is no scope to cross-examine a witness, his affidavit may be received by specific order of the Court. This rulefurther strengthens the argument that where the suit is contested, then, facts cannot be proved by affidavit.

22. There were occasions in the past when Courts ordered fresh trial, after finding fault with the trial Court for allowing affidavit in evidence in contested cases. The reason was that the S.l of Evidence Act did not allow proof of facts by affidavit9.

23. The chief-examination by affidavit is wholly unsatisfactory, particularly because there is no guideline as to what it should contain. No doubt, O.19, R.3 of the Code may be cited as containing the guidelines regarding what the affidavit should and should not contain. But, once the affidavit is showed into court there is no way of pruning it. What with computer facility, the chief examination will contain the repetition of the pleadings, including the cliche first sentence of the written statement to the effect that the suit is false and vexatious and what not!

24. The few months of trial given to the operation of R.4, will as any trial Court lawyer/ Judge will confirm, indicate that new procedure under R.4 consumes more time than reducing delay. On one date affidavit will be filed, on another date admissibility of documents will be considered and then another date for cross-examination! The remedy is proving to be worse than the disease!

25. Even from practical point of view, affidavit evidence keeps the trial Judge in dark about what was deposed in examination-in-chief, and consequently he cannot effectively deal with the state of cross examination. Either it is curtailed or allowed to go on and on!

26. As regards the deponent-witness, he would not be familiar with what is recorded in it. It turns out more like the statement given before Police in criminal case! If witness is asked whether he knows what he has stated in his affidavit, normally he will say he does not know! Probably the cross-examination will become easier this way! On the whole, one can say that by introducing amended R.4, the trial is more a mockery than oriented to render justice. Sooner the old R.4 is restored, so much the better. If statistics regarding delay in litigation is gathered one would not be able to say that merely by oral evidence being given in Chief Examination in Court, trial gets delayed. Therefore, there is no justification to retain amended R.4 in the teeth of violation of the Evidence Act.

Epilogue:

27. The procedural change introduced regarding recording of evidence is wholly not satisfactory. Merely allowing Chief Examination to be done at home will not cure. The real culprit of delay is not the procedural law, but may be found elsewhere! If the law is not set right by amendment, at least the Rules of Practice should be framed, laying down the guidelines for preparing, filing and considering the chief examination by affidavit.

Foot Note:

1. 2002 (3) KLT 920 (SC)

2. Palode Ravi v. Mangode Radhakrishnan, 2002 (3) KLT 557

3. Ibrahim F. Karjgi v. Kasimkhan, 2003 (1) KLT 104

4. Madhur Industries Ltd. v. M.V. Orient Commerce, Air 2003 Bom

5. Laxman Das v. Deoji Mal AIR 2003 Raj. 74

6. Kamal Kumar Modi v. Krishnan Saigal AIR 2003 Delhi 349

7. 2003 (3) L.W. 679, 684 & 668.

8. AIR 2004 SC 355

9. Firm S. Rajkumar v. Bharat Oil Mills, AIR 1964 Bom. 38; Parekh Bros v. Karthichandra AIR 1968 Cal.532.