IS NO CONFIDENCE MOTION A RESOLUTION?

(P.M. Benzir, Advocate, High Court of Kerala)

Motion and resolution are the two words which have been used interchangeably to mean when carried out becomes the decision of the house. Etymologically, perhaps, both these words may have comparable implications. However, in the legal, rather parliamentary context the terms motion and resolution have a subtle nuance. The infinitesimal distinction between the two is more of procedure than of content.

Motions may be classified as substantive motions and subsidiary motions. A substantive motion is a self-contained motion made in reference to a subject which the mover wishes to bring forward. It is an independent proposal submitted for the approval of the house and drafted in such a way as to be capable of expressing the decision of the house on the subject matter of the motion. A subsidiary motion relates to a substantive motion and is made use of to enable the house to dispose of it in the most appropriate manner. In other words a subsidiary motion relates to some other motion or follows up on some proceedings in the house. The motion for the adjournment of the debate is an example of a subsidiary motion.

A motion may be moved for the purpose of adjournment of a debate, for superseding questions or for the adjournment of the house itself. The issues of date and time of next session of the assembly, the duration of intervals, the person to preside over the house in the absence of the Chairman, the allotment of time to each members to speak on a particular topic etc. may be the subject matters to be decided by moving motions. Closure motion, ten o' clock business motion, dilatory motion, guillotine motion etc, are examples of motions practiced in the British parliamentary system.

However, a resolution is one of the important procedural devices to raise a discussion and obtain the opinion or decision of the house on a matter of general public interest. By its resolutions the house declares its own opinions and purposes. Resolution is an expression of the opinion of the house with reference to some subject or a declaration of its intention to do something. Hence, in broader words, all resolutions would fall under the category of substantive motions or it can be said that every resolution is a particular type of motion. Resolutions are generally moved before the house to put questions of policy matters having direct impact on the general public. The subject matter of the resolution should relate to a matter of general public interest and only to a matter which is primarily the concern of the Government.

In strict sense, a no confidence motion carried by the majority of members of a house cannot be treated as a resolution of the house since it is not an expression of an opinion or decision on a matter of general public interest. A no confidence motion is rather an inter se affair of the house. Different procedural formalities have been prescribed under the statute for moving no confidence motion and passing a resolution. A distinctive procedure called Statutory Resolution has been laid down by Direction 9B issued under the Rules of Procedure and Conduct of Business in Lok Sabha for moving resolutions in pursuance of the provisions of the Constitution for the impeachment of the President, removal of the Speaker, Dy. Chairman of Rajya Sabha etc.

Regarding the local authorities, apart from the provisions of Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995, S. 157 of the Kerala Panchayat Raj Act prescribes the distinctive procedure to be followed in removing the President/Vice President of the Panchayat through a motion of no confidence. Similarly S. 19 of the Kerala Municipality Act elaborately deals with the procedure for moving a no confidence motion against the Chairperson/ Deputy Chairperson of a municipality.

In Valsalam v. State of Kerala¹ the question for consideration before the Kerala High Court was that whether the State Government has the power to rescind a no confidence motion which has been successfully carried by the majority of members against the President of a Grama Panchayat, by invoking the power to cancel and suspend resolutions under S. 191 of the Kerala Panchayat Raj Act, 1994. Allowing the Writ Petition the Court in clear terms indicated that a no confidence motion cannot be considered as one coming within the purview of a resolution. It was held that a separate procedure had been contemplated under S.157 of the

Panchayat Raj Act for holding the meeting of the elected members for considering the no confidence motion. A decision or a resolution can be taken only in a meeting of the Panchayat. A meeting of the elected members convened by the representative of the Election Commission is not a meeting of the Panchayat. S. 191 would apply only when there is a decision taken or a resolution passed by the Panchayat and such a resolution or decision alone can be set aside or modified by the State invoking S.191 of the Kerala Panchayat Raj Act. The announcement of the voting result of the no confidence motion would not amount to the passing of a resolution or decision taken by the Panchayat.

Relying on the decision in Valsala's case the Kerala High Court in Kunhimon v. Block Development Officer², observed that the modalities prescribed by S. 157 on the Panchayat Raj Act are distinct and different from the matter of notice, conduct and quorum, and the general procedure spoken to by the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995. It was also meaningfully noted that in respect of proceedings under S.157 what is tabled is not a resolution, but a motion.

Again, a no confidence motion is different from a censure motion. Whereas, a censure motion is moved for the specific purpose of ensuring the Government for certain policies and actions. For moving a censure motion it is necessary to set out the grounds or charge on which the motion is based. On the contrary a motion of no confidence need not set out any ground on which it is based. Even when grounds are mentioned in the notice and read out in the house, they do not form part of the no confidence motion. It is a simple single sentenced motion lined as

'this council expresses its want of confidence in the chairperson^’.

There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members.

Foot Note

1.Valsalam v. State of Kerala, 2003 (1) KLT 858; 2003 (1) KLJ 583.

2. Kunhimon v. Block Development Officer, 2003 (3) KLT 664

M.C. Setalvad-- M.C. Mahajan - Some Reminiscences

(By A.S.P. Kurup, Advocate, Ernakulam)

Every person irrespective of the fact that he is great or small has some unforgetful moments in his past life. When that particular person makes an attempt to look back to the ever green memories of the past, he may find some solace in those unfading events of life. But as to the readers, the knowledge of such events, which are generally termed as anecdots, will give an opportunity to know something about such towering personalities. Thus a sound knowledge of such anecdotes enables the reader to believe that such persons are not destined to be extinct in the pool of oblivion.

Mehr Chand Mahajan, former Chief Justice of India and Motilal Setalvad, former Attorney General for India are two luminaries in the legal galaxy. As monuments to the posterity we have got two autobiographies written by these two. The following are some anecdots taken from the books, 'Looking Back' by M.C. Mahajan and 'My Life Law and Other Things' by M.C. Setalvad.

Mehr Chand Mahajan was having an unforgetful experience with his first brief. On that day in the morning he was ready with his case by 10 a.m. but the court was not sitting as the Magistrate was busy in fishing. He waited and waited till it was 12 noon. Instead of the Magistrate returning, two men came carrying a huge 70 pound fish with a chit that it was for the Vakil Sahib who had come for the '366' case. Mahajan's Munshi was soon at it and prepared several nice dishes of the fish to which they treated everybody in the camp including themselves. By 3 P.M the Magistrate returned and the case was taken up at 3-30 p.m.

In another context Mr. Mahajan says that Mr. Hari Chand was a convicting Magistrate at Gurdaspur. He used to take pride that no one was ever let off from his court. He sentenced one Mr. Jat to 30 years imprisonment on several counts. The man was already 70 years old and told the Magistrate that he could stand only a few years imprisonment and asked the Judge, "Who will suffer the rest of the sentence after my death, your father?" This upset the Magistrate and he gave him an additional sentence for contempt also.

The memory of an argument runs like this. Mr. F.W. Skemp, a fine gentleman who was patient and courteous as a Judge used to sit in the High Court. On the High Court Bench he would often go to sleep. Suddenly he would wake up, consult his notes and ask the counsel to begin again from the stage where his last note had stopped. This was very annoying to his brother judges on the Bench who had reached the end of the case.

Once Mr. Mahajan appeared before an honorary Magistrate, in Kalanur, a more or less illiterate person but a fine gentleman otherwise. It was a criminal case and he was being opposed by Sheikh Chiragh Din. The Magistrate knew no English whatsoever and Chiragh Din knew the fact. To impress the Magistrate he cited about 100 English cases before him from various law reports, all irrelevant to the issue before the court. At that time Mr. Mahajan was a youngster and Chiragh Din thought he would outsmart in that way. When Mahajan's turn came he started citing Privy Council decisions which, he proclaimed, all decisions cited by Chiragh Din had been overruled. It was all hoax. Mr. Mahajan did not know any of those cases and had never read them. Just as Mr. Din had cited at random, he did the same. The Magistrate got perplexed and postponed the case immediately.

It is a fact that any moment in a person's life may turn out to be an important turning point. When Mr. Motilal Setalvad started his practice in his early days, he was staying along with his father and wife. He wanted, however, to earn his own living and cease being a burden on his father. He was greatly depressed at not being able to work and told his father, more than once, that he should leave the profession and get a job. But his father kept on telling him that 'at the Bar one had to wait'. Later, however, seeing his impatience, the affectionate father was making efforts to find a suitable part or full time job for him. Before these could fructify his fortune turned to a glorious direction.

A good instance of a legal clash between the father and the son created a lovely scene in the court room. A boundary dispute between the State of Cutch and Morvi had been brewing for some years and ultimately it was referred to Justice Rangnekar who was sitting as Commission in a bungalow on the Malabar Hill. Sir Ghimanlal Setalvad, the father, the Mr. Joshi appeared for Cutch and Motilal Setalvad appeared for the State of Morvi. The father and the son put different Interpretations on old Gujarati documents. One of the documents happened to be a will in Gujarati. When Motilal Setalvad objected to a construction put by his father, the angry father promptly interjected, 'The meaning is quite clear. I knew my Gujarati before my learned friend was born".

Even in an extremely serious atmosphere of arguments on complicated legal issues also, laughter springs up in courts, from the subtle wits of eminent lawyers. In 1951 State of Bombay had challenged in Supreme Court the decision of the High Court in the famous Fram Balsam case. The High Court had struck down certain provisions of the Bombay Prohibition Act. Mr. Setalvad appeared in the Supreme Court for the State. Mr. Daphtary who was the Advocate General of Bombay assisted him in the case. The matter concerned the alcoholic drinks and spirits and "pegs" with which Mr. Setalvad was not at all familiar. Justice Patanjali Sastri asked many questions when Mr. Setalvad was addressing the court as to what a "peg" was and what "liqeours" were, and so forth. Genuinely in distress, Mr. Setalvad told Justice Sastri that his learned junior Mr. Daphtary was fully familiar with all these matters and he would explain them completely to His Lordship's satisfaction. Mr. Daphtary rose to bis feet and succeeded in answering all questions put to him by Justice Sastri amidst laughter all round in the court house.

Mr. Setalvad has the unique moral strength of expressing his views about Judges also in a realistic way. Chief Justice Mahajan's treatment of counsel appearing before him was often extremely preemptory and at times discourteous, and created great dissatisfaction among the members of the Bar. Setalvad remembers an occasion in which Mr. Mahajan was asking a senior Punjab lawyer who was urging an argument after the Chief Justice had repeatedly rejected it "How many years you had been at the Bar? The lawyer replied with natural pride that he had been at the Bar for over thirty years. Quick came the Chief Justice's sharp retort: "You have wasted them all".

Former Chief Justice Das remembered Mr. Justice Mahajan as a Judge in this way. Chief Justice Mahajan had a direct approach of dealing with counsels. In an appeal a man alleged that he had been wrongfully dismissed. It was a case of a company in which there were two sets of directors and they were fighting and were at logger heads. This man who was the manager sided with one of the factions and ultimately the other faction came into power, they promptly dismissed him. The counsel for him, came from outside. He was going on arguing. There was nothing in the case. Then, the Chief Justice who was presiding, looked at him frowningly and said, "Why did you take sides?". Counsel replied : "What could I do? They were the men in power". Mr. Mahajan, Chief Justice looked at him and said, "so you believe in obeying the men in power?". The counsel said, "Yes, my Lord, what could I do? Quick came the reply: "I am the man in power here. You had better sit down". And the counsel did what he was told.

In expressing his views, Mr. Setalvad was very frank and clearly spoke out his mind, throughout the book. Here is an example when he speaks about the Judges of the International Court of Justice. In International Court of Justice rarely did a Judge ever ask any question. Nor did the Judges appear to take any notes. They sat almost impassively throughout the proceedings. Some of them even read books or appeared to sleep during the proceedings. Mr. Setalvad remembers Soskice, Counsel from Britan, once drawing his attention to a judge reading a book during the course of the counsel's arguments. He expressed strong resentments at counsel being" treated with such scant respect. Indeed, it was said about one Judge that he had finished reading a number of detective novels during the course of the hearing. At least three of the Judges wore dark glasses so that it was difficult to decide whether they attended to the proceedings or not. A Court undoubtedly it was; but as Mr. Setalvad said after his return to India while speaking about the court, it was "a dead court".

LOTTERIES AND THE LAW

(By Shri V. Bhaskaran Nambiar, Former Judge, High Court of Kerala)

I welcome the reintroduction of the Kerala State Lottery; I welcome the ban on on-line lotteries. But then, I do not understand why there were so many doubts, differences and difficulties in the regulation of lotteries in this State, especially when the Supreme Court, in several decisions of the Constitution Bench has settled the law on the subject.

What then is the settled law? What are the Constitutional and Statutory provisions?

Entry 40 of List I in the Seventh Schedule of the Constitution reads:-- 'Lotteries organised by the Government of India or the Government of a State'. Parliament has thus the exclusive power to enact a law on lotteries organised by the Government of India or the Government of a State. Accordingly, Parliament enacted the Lotteries (Regulation) Act, which came into force on 7.7.1998.

Gambling is a State subject under Entry 34 of List II reading 'Betting and gambling'. In the well-known R.M.D.C. case, AIR 1957 SC 699, a Constitution Bench held that lottery is a gamble, not trade or commerce and mere is no fundamental right to conduct lotteries.

Government of Maharashtra allowed the sale of Maharashtra State lottery tickets only, inside the State and banned the sale of lottery tickets organised outside the State. This was before the coming into force of the 1998 the Lotteries (Regulation) Act. A Constitution Bench in Anraj's case, (1984) 2 SCC 292, held thus:--

'Betting and Gambling includes and has always been understood to have included the conduct of lotteries. Quite obviously the subject lotteries organised by the Government of India or the Government of a State has been taken out of from the legislative field comprised by the expression Betting and Gambling and is reserved to be dealt with by Parliament. Since the lotteries organised by the Government of India or the Government of a State has been made a subject within the exclusive legislative competence of Parliament, it must follow in view of Art.246(l) and (3) that no Legislature of a State can make a law touching lotteries organised by the Government of India or the Government of a State. The Maharashtra Legislature has acknowledged the position, as indeed it must, in S.32 of the Bombay Lotteries (Control and Tax) and Prize Competitions Act, 1958. S.32 expressly provides that nothing in the Act shall apply to a lottery organised by the Central Government or the State Government. This as we said is but recognition of the prevailing situation under the Constitution. The constitutional position cannot be altered by an Act of the State Legislature'.

In view of this categorical decision, I am not able to understand how the Kerala State can make any law-affecting lotteries organised by the Government of India or the Government of a State. If therefore, the on line lottery is a lottery organised by any other State, it cannot be matter of State legislation by simply calling it as gambling.

Imposition of tax on outside lotteries by Tamilnadu and West Bengal compelled the Supreme Court in the second Anraj case (1986) 1 SCC 414, to hold that the tax on sale of lottery tickets was a tax on sale of goods. Even then the Apex Court held that there could not be two different rates of tax one for the 'inside lottery' and another for the 'outside lottery'. The Court struck down the exemption granted by the Tamilnadu State on the sale of Tamilnadu lottery tickets on the ground that it was discriminatory and affected the free flow of trade recognised under Art.301 and 304 of the Constitution. The Supreme Court said, 'Discriminatory treatment in the matter of levying the sales tax on imported tickets which are similar to the ones issued by the State Government so as to hamper the free flow of trade, commerce and intercourse is writ large on the face of the impugned notification'. Can the State therefore demand any higher tax or duty from the lotteries organised by other States.

Bearing these legal aspects, it is clear (1) that the Lotteries (Regulation) Act prevails all over the country (2) lotteries organised by the Centre and me Stales are bound by those provisions (3) that the State cannot discriminate between lotteries conducted by the State and outside lotteries for taxation purposes.

This takes to the question as to what are the lotteries organised by the Centre and the States coming within the ambit of the Lotteries (Regulation) Act.

S.4 of the Act stipulates the conditions for organising, promoting such lotteries.

Some of the main requisites are

(1) The State Government shall print the lottery tickets bearing the imprint and logo of the State in such manner that the authenticity of the lottery ticket is ensured.

(2) The State Government shall sell the tickets either itself or through distributors.

 (3) The proceeds of the sale of lottery tickets shall be credited in the public account of the State.

(4) No lottery shall have more than one draw a week.

(5) Prizes shall not be offered on any pre-announced numbers or on the basis of a single digit.

5.5 stipulates 'A State Government may, within the State prohibit the sale of lottery organised or conducted, promoted by very other State'. There is no reason why the State cannot have recourse to this provision instead of coming out with a new legislation.

The crux of the problem is whether on-line lotteries are organised by any other State. It is not the form of a rubber stamp of the State that gives authenticity to the lotteries, but it is the substance that the lottery is run by the State that matters. Lottery is 'an arrangement for the distribution of prize by chance among persons purchasing tickets'. Therefore the printing of tickets has to be the sole preserve of the State. This should necessarily mean that the tickets are printed and numbered and then distributed for sale. If the tickets have no numbers they are not lottery tickets. The State cannot issue blank slips bearing only the imprint and logo of the State and authorise its agents to allot numbers of their choice to the tickets. In that case it will not be tickets printed by the State. When a lottery ticket is printed by the State, it should have its number displayed. It cannot be a number printed by the seller/agent. These are aspects, which require to be borne in mind when dealing with lotteries conducted by the States.

The question is, did the State satisfy itself on the basis of the records made available or on the basis of independent enquiry that the conditions prescribed under S.4 were satisfied or not. If the applicants did not satisfy the conditions they may not be entitled to conduct on-line lotteries. The State is not bound to allow them to carry on that trade.

S.6 of the Central Act says, the Central Government may, by order published in the Official Gazette, prohibit a lottery organised, conducted or promoted in contravention of the provisions of S.4 or where tickets of such lottery are sold in contravention of S.4. The State is thus not helpless in banning on-line tickets.

Regarding 'play win' in the decision reported in 2000 (3) KLT 599 a learned Single Judge observed thus:

The much-hyped super lotto of the State of Sikkim is being run by a sole dealer and distributor, a private firm named 'play win'. This firm sells the tickets through retail terminals spread across the country. A punter goes to a retailer and selects six numbers from those mentioned in the play slip. The agent then inserts the play slip in the terminal and prints out the tickets on custom made papers with the name 'Play win' printed all over it with only a smudgy state logo appearing on it. This does not appear to comply with S.4(b) of the Act, requiring the State Government to print the lottery tickets bearing the imprint and logo of the State in such a manner that the authenticity of the lottery is ensured. As such, the device adopted by Play win does not appear to be fool proof against fraud and hence the sale of fake tickets cannot at all be ruled out".

Now, what has happened? In the wake of the interim orders of the Supreme Court, the State could not take any action against the outside lotteries. The State was anxious to stop those lotteries. The State should have then satisfied itself whether there was compliance with S.4 and move the Supreme Court for modification of the orders. But the State in a hasty move withdrew the State lotteries run by the Government. The result was the State lost huge revenue running to crores of rupees. Lacs of persons lost their only source of livelihood. Thus the State killed the goose that laid the golden eggs. It may be said that the administrative action, patently destructive in nature, issued in very great haste, by one stroke of the pen, was practically a challenge to the judiciary. Administrative ego bordering on challenge to judicial directive has thus resulted in some sort of chaos.

DENUDATION OF MANGALAVANAM

(By Justice K.P. Radhakrishna Menon)

The first report of the international commission by name 'The Brandts Commission', which had a distinguished Indian Mr. L.K. Jha as a member, had occasion to deal with the question relating to ecology and environment, raised a wonderful issue for the consideration of the world, "Are we to leave our successors a scorched planet of advancing deserts, impoverished landscapes and ailing environment?"

This issue, the Commission was compelled to pose, because, the destruction of the ecology, environment, and denudation of forests have started affecting the four principal biological system of Earth, namely, fisheries, forests, grasslands and croplands which form the foundation of the global economic system, resulting in the impairment of their productivity itself. Dr. Myers says, several species of life in the tropical forests are facing extinction as a result of this destruction. It is shuddering to note the remark made by Sri. James Speth, the President of the World Resources Institute: "We were saying that we are losing the forest at an acre a second, but it is much closer to an acre and a half to a second".

Taking note of this catastrophe, our Parliament amended the Constitution and incorporated Art.48(A) which reads "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country". By the same Amendment Act (42nd Amendment of 1976) Part IVA prescribing the fundamental duties was incorporated in the Constitution. Clause (g) of Art.51(A) (fundamental duties) is relevant in the context. It mandates that it is the fundamental duty of every citizen to protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Reading the directive principles of state policy highlighted in Art.48(A) and the fundamental duty aforesaid together, it can be said without fear of contradiction that the Govt, is bound to enforce the directive principles and thus avert or avoid the destruction of the natural environment including forest, rivers and wild life. It shall be remembered that the directive principles of the State Policy is so basic as to say that it is fundamental in the governance of the country. The opinion expressed by Bhagavathy. J. in Minerva Mill Case, reproduced hereunder is relevant in the context: "A rule imposing an obligation or duty could not therefore cease to be a rule of law, because there is no regular judicial or quasi judicial machinery to enforce its command...... It is therefore, to my mind, clear beyond doubt that merely because the directive principles are not enforceable in a Court of law, it does not mean that they cannot create obligations or duties binding on the State". It is all the more so because both Art.48(A) and Art. 51(A)(g) are intended to promote a Welfare State, envisaged by the objective highlighted in the preamble to the Constitution.

The disturbing factors, noticed by the Government resulted in the policy decision of the Government directing preservation of the environment and safe guarding the forest and wild life of the State. This policy of the Govt, is reflected in the proceedings declaring 'Mangalavanam' as a protected area.

It is understood from the scribblings in the newspapers, that the State has decided to oblige the High Court by surrendering a portion of the "Mangalavanam" to be used as a parking ground. If the proposal matures into reality, I would unhesitatingly say that the State is failing in its duty to protect and preserve the welfare of the society.

Be that as it may: The citizens feel that the High Court shall take the initiative and direct the Government to put an end to the denudation of forests, which the Govt, are bound to protect. If no action is forthcoming in this regard the citizen who is duty bound to protect and improve the natural environment including forests, lakes, rivers and wild life, going by Art.51 (A) of the Constitution, is entitled to initiate proceedings before the Hon'ble High Court under Art.226 or before the Supreme Court under Art.32 of the Constitution, to compel the Government to withdraw the proposal, and salvage "Mangalavanam" which is also a bird sanctuary.

I conclude, quoting the words of Mr. Lester Brown, "we have not inherited this Earth from our forefathers; we have borrowed it from our children": and that is why Margaret Thatcher reminded the world, "No generation has a free hold on this earth. All we have is a life tenancy ~ with a full repairing lease".

THE SURYANELLI VERDICT

(By Justice K.P. Radhakrishna Menon)

After achieving independence the magnitude of the unchecked craving for money, authority and the unchecked desire for sensual pleasures that have come to the upper echelons of the society is amazing. Their money power could control the election and bring the administration to its knees and consequently the administration could not prevent liberty/ freedom from degenerating into license; And alas situation has arisen where the freedom fighter has become a law breaker. Men at the helm of affairs have made life too easy for criminals and too difficult of law-abiding citizens. In the free society to quote the inimitable words of the elaborated jurist Sri.Palkiwala, "too many crooks break the law, blight young lives, traffic in drugs, and claim the fundamental right to exploit commercially sex and violence". The society is crime ridden today. Evaluating the situation the learned jurist has stated: "Are we right in thinking that hard evidence, if collected illegally, cannot be used against a criminal in a trial even when there is no other way of securing a conviction". The jurist opines "we have to strike an acceptable balance between the proper interests of society which wants criminals to be put out of harm's way and the equally proper instincts of libertarians, anxious that nothing should imperil the rights of the citizens".

The above high moral principles, nay mature legal principles because rooted in Dharma, pronounced by the Dharma chakra displayed on The National Flag, seems to have not been brought to the notice of The High Court which altered the verdict of The Special Court in Sooryanelli case relying on "description 6 of S.375, 'with or without her consent, when she is under sixteen years of age', Indian Penal Code, 1860".

The comments on the judgment by the literate and the illiterate, the layman and the learned, the philosopher and the man down to earth reflects the exasperated feeling of the society that, is not the kidnapping of a girl aged about sixteen, too high a price to pay for the freedom to be a permissive society?

That the conscience of the society is troubled cannot be disputed. But, that by itself will not make the verdict unacceptable provided it has constitutional foundation.

My attempt is just to have a peep into the legal aspects without being led away by emotions and sentiments.

To sustain the verdict of the High Court it shall be shown that description six of S.375 IPC enacted by The Legislative Council on 6th October 1860 is not inconsistent with provisions of the Constitution, particularly Part III and Part IV thereof and hence not void. It should in this connection be remembered that, "The Indian Constitution", to borrow the words of Justice Chandrachud, "is founded on the bedrock of the balance between Parts III and IV. This harmony between fundamental rights and the directive principles is an essential feature of the basic structure of the Constitution and therefore even Parliament cannot disturb this balance". Quoting political Pundit Granville Austin, Chanderchud, J. further stated (Kesavananda Bharati). "The freedoms of a few have then to be abridged in order to ensure the freedom of all. It is in this sense Granville said that these two parts constitute the conscience of the Constitution".

The above salient constitutional principle is reflected in the epoch making decision of Bhagavati, J. construing Art.21 read along with Art. 39(e) and (f) and Art. 41 of the Constitution. The minimum requirements high lighted in these provisions must exist, the learned Judge finds, in order to enable a person to live with human dignity and therefore no State, neither the Central Government, nor the State Government, has the power to take any action depriving a person of the enjoyment of these basic essentials. The basic essential relevant here is the one provided by Art.39: "that childhood and youth are protected against exploitation and against moral and material abandonment". It is apposite to note in the context that the framers of the Constitution were of the firm view that children and youth irrespective of age or gender are entitled to enjoy these basic essentials to enable them to live with human dignity enshrined in Art. 21. That these essentials are not to be jettisoned is further established by Art.51A prescribing, the fundamental duties, every citizen shall observe because they form part of the concept of 'Welfare State'. Part IV A of the Constitution (fundamental duties), "The Sovereign" was compelled to incorporate as the Country was not able to shake off the burden of the influence of Anglo-Saxon jurisprudence, the legacy of which one should say is, 'description six' of Sec. 375 IPC. It shall in this context be kept in view the verdict of the Supreme Court regarding the scope of the directive principles particularly Art.39(f); "statutory interpretation in the creative Indian context may look for light the lode star of Part IV of the Constitution i.e., Art. 39 and Art. 43. When two judicial choices are available, the Constitution in conformity with the Social Philosophy of Part IV has preference". In otherwords the Constitutionality of any law shall be decided in the light of the above principles. It is all the more so because Art.51A mandates that it is the fundamental duty of every citizen to abide by the Constitution. "Sixth description" of S.375 of the Indian Penal Code, a statute, the origin of which is traceable to antiquity, in my view, smashes the very basic structure of The Constitution into Smithereens, has been pressed into service by the High Court to acquit the accused other than the 1st accused. 'Description Six' of S.375 IPC is liable to be declared ultra vires the Constitution, in the light of the dictum of the Supreme Court mentioned above. This important aspect apparently has not been brought to the notice of the Judges. The judgment, with respect, therefore, warrants review which can be done by the High Court by invoking its plenary power as a Court of Record.

To conclude, I quote the ancient law giver Kautilya: "Whoever imposes punishment as deserved becomes respectable; for punishment when awarded, with due consideration makes the people devoted to righteousness":