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

Article 21 - Whether to Be Curtailed?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUNIORS, IT'S TIME TO GO ONLINE

(By Justice M.R. Hariharan Nair)

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

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

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

Investigation And Chargesheeting by Detecting

Official (From Naushad to J Ay a Paul)

(By Justice M.R. Hariharan Nair)

Many an accused involved in NDPS and Abkari cases have walked away with acquittal under cover of Naushad (2000( 1) KLT 785). The argument that a Police Officer who detected and registered a case should not investigate it and that a charge laid violating this principle would lead to prejudice the interests of the accused and enable him to get an acquittal found favour with many Courts. The situation assumed great significance in NDPS and Abkari cases where detection of the offence by empowered officer would essentially lead to completion of almost the entire investigation. Receiving of information, recording of the same, intimating the matter to the higher authority, actual seizure in the presence of competent witnesses, sampling from the seized contraband, preparation of scene mahazar, if any; (very often the seizure mahazar itself would contain the details ordinarily noted in a scene mahazar) etc. would all be done before removing the accused to the police station by one and the same Police Officer and in such a case all that would remain for laying the Final Report would be moving the court for sending the sample for analysis, and collection of the report from the Laboratory. Questioning of the mahazar witnesses and other occurrence witnesses, if any, would also be required. The stand that the completion of investigation and laying of charge sheet should invariably be by an officer different from the one who detects the offence might stand in the way of successful prosecution in such cases, notwithstanding the fact that the detecting officer himself is an officer, senior in rank.

The above decision was rendered on the basis of the decision of the Apex Court in Megha Singh's case (AIR 1995 SC 2339) where a Head Constable who had arrested the Accused and recovered a Pistol and cartridges from his possession proceeded to give formal FIR and thereafter proceeded to examine the witnesses also. The Court treated him as the complainant and observed that he should not have carried on the investigation, since such a practice would give room for suspicion about the fairness and impartiality of the investigation. Gyan Chand (1993 Crl. L.T 3716) which was also relied on by the learned Judge was one where the Officer who got source information proceeded to make a search and recovered opium and continued with investigation. The Court held that the officer can be treated as a complainant only and as such he cannot be the sole agency of investigation; that this infirmity would go to the root of the matter and vitiate the investigation justifying acquittal of the Accused.

In Xavier v. Gopalan (1938(1) KLT 686) which was the third decision referred to by the learned Judge who decided Naushad’s case, it had been found by his Lordship himself that where Complainant-Police Officer conducts investigation.

"the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating the previous informations recorded under Ss. 154 or 155 Crl. P.C. and previous statement of the witness, being a police officer, complaint recorded under S. 161 Cr. P.C. enjoined in S.145 and 157 of the Indian Evidence Act and proviso of S.162 Cr. P.C."

A Division Bench of the Kerala High Court, in Kader v. State of Kerala (2001 (2) KLT 407), over ruled the said view taken in Naushad's case and held that the decision in Xavier (supra) does not lay down the correct law. It was also held that the NDPS Act is a special enactment; that under the decision in Balbir Singh's case (AIR 1994 SC 1872), once the empowered officer comes across a person in possession of contraband, he has to follow thereafter the procedure prescribed in the various provisions of the NDPS Act and continue investigation as provided thereunder and that in such circumstances, in cases under the NDPS Act there is no taboo for continued investigation by the detecting official. It was also held that there is also no likelihood of any prejudice being to the Accused in such cases in so far as by the time of arrest, main part of the investigation would have been completed. It was specifically held that continued investigation by the detecting officer and filing of final report by him would not vitiate the proceedings under the NDPS Act.

With the above decision the position became clear, as far as this State is concerned; but that is with respect to NDPS cases alone. In States other than Kerala Megha Singh continued to operate. Even within the State the operation of the dictum in Kader's case was confined to NDPS cases and as far as other criminal cases are concerned, Megha Singh continued to operate.

It was while this position was prevailing that the Apex Court pronounced its decision on 22/3/2004 on the above aspects in State v. Jayapaul (2004 SCCL.Com 297 -Crl. Appeal.. 359/2004) holding that no broad proposition that a detecting officer shall not make further investigation can be laid down . Decision in Megha Singh was distinguished as follows:

" 10. In Megha Singh's case, PW3, the Head Constable, found a country-made pistol and live cartridges on search of the person of the accused. Then, he seized the articles, prepared a recovery memo and a 'rukka' on the basis of which FIR was recorded by the S.I. of Police. However, P.W.3 - the Head Constable himself, for reasons unexplained, proceeded to investigate and record the statements of witnesses under Section 161 Cr. P.C. The substratum of the prosecution case was sought to be proved by the Head Constable. In the appeal against conviction under Section 25 of the Arms Act and Section 6( 1) of the TADA Act, this Court found that the evidence of PWs 2 & 3 was discrepant and unreliable and in the absence of independent corroboration, the prosecution case cannot be believed. Towards the end, the Court noted 'another disturbing feature in the case'. The Court then observed:

"PW3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr. P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."

11. The conviction was set aside by this Court for the above reasons.

12. At first blush, the observations quoted above might convey the impression that the Court laid down a proposition that a Police Officer who in the course of discharge of his duties finds certain incriminating material to connect a person to the crime, shall not undertake further investigation if the FIR was recorded on the basis of the information furnished by him. On closer analysis of the decision, we do not think that any such broad proposition was laid down in that case. While appreciating the evidence of the main witness, i.e., the Head Constable (PW3), this Court referred to this additional factor-namely, the Head Constable turning out to be the investigator. In fact, there was no apparent reason why the Head Constable proceeded to investigate the case bypassing the Sub-Inspector who recorded the FIR. The fact situation in the present case is entirely different. The appellant-Inspector of Police, after receiving information from some sources, proceeded to investigate and unearth the crime. Before he did so, he did not have personal knowledge of the suspected offences nor did he participate in any operations connected with the offences. His role was that of investigator- pure and simple. That is the obvious distinction in this case. That apart, the question of testing the veracity of the evidence of any witness, as was done in Megha Singh's case, does not arise in the instant case as the trial is yet to take place. The High Court has quashed the proceedings even before the trial commenced.

13. Viewed from any angle, we see no illegality in the process of investigation set in motion by the Inspector of Police (appellant) and his action in submitting the final report of the Court of Special Judge."

In the aforesaid case (State v. Jayapaul) the S.C. also referred to yet another precedent of its own viz. Bhagwan Singh vs. State of Rajasthan (AIR 1976 SC 985) and distinguished that also. That was a case where the Head Constable to whom the offer of bribe was allegedly made, had seized the currency notes offered to him and gave the first information report. Thereafter, he himself took up the investigation. But, later on, when it came to his notice that he was not authorized to do so, he forwarded the papers to the Deputy Superintendent of Police. The Dy. SP then reinvestigated the case and filed the charge sheet against the accused. The Head Constable and the accompanying Constables were the only witnesses in that case. Taking note of this fact scenario, the Apex Court held in State v. Jayapaul:

"This Court found several circumstances which cast a doubt on the veracity of the version of the Head Constable and his colleagues. This Court observed that 'the entire story sounds unnatural'. While so holding, this Court referred to 'a rather disturbing feature of the case' and it was pointed out that

'Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant and he was the informant or complainant who lodged the first information report for taking action against the appellant. It is difficult to understand how in these circumstances, Head Constable Ram Singh could undertake investigation?... This is an infirmity which is bound to reflect on the credibility of the prosecution case?"

8. It is not clear as to why the Court was called upon to make the comments against the propriety of the Head Constable - informant investigating the case when the reinvestigation was done by the Deputy Superintendent of Police. Be that as it may, it is possible to hold on the basis of the facts noted above, that the so called investigation by the Head Constable himself would be a mere ritual. The crime itself was directed towards the Head Constable which made him lodge the FIR. It is well nigh impossible to expect an objective and undetached investigation from the Head Constable who is called upon to check his own version on which the prosecution case solely rests. It was under those circumstances the Court observed that the said infirmity 'is bound to reflect on the credibility of the prosecution case'. There can be no doubt that the facts of the present case are entirely different and the dicta laid down therein does not fit into the facts of this case."

With the clarifications as above the Apex Court held that the facts of Megha Singh and Bhagwan Singh did not justify the particular observations made in the judgments concerned. The basis of the earlier decisions in Naushad and the other cases is thus gone. The position that prevails after State v. Jaya Paul, therefore, appears to be that except where the Police Officer is himself the defacto complainant eg. where in the course of discharging official duty he is abused, attacked, manhandled, defamed, attempted to be bribed or otherwise obstructed from work, etc. (the common element in these situations being that the occurrence actually offends the Officer personally or officially in the sense, in the course of official duties; and he is, to that extent, biassed and prejudiced against the Accused and also liable to be cross examined during trial from that perspective with reference to his earlier statements recorded during investigation) there is no taboo for the same officer (if competent under law otherwise) to proceed with the investigation in the case and the Accused cannot be acquitted merely because the same officer completed the investigation and laid the Final Report. More so in cases under the NDPS and Abkari Acts. The importance of the decision in State v. Jayapaul lies, on the fact that the Megha Singh and Bhagwan Singh have been watered down.

JUSTICE  A.  LEKSHMIKUTTY         Tel. office: 2393901 to

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JUDICIAL DISCRETION

(By O.V. Radhakrishnan)

1. Introduction

Administrative law is abranch of law which deals with afundamental doctrine of the'rule of law' that Government in all its activities and manifestations should be brought within the penumbra of Judicial Review vested with the Courts and Tribunals. A simple defenition of Administrative Law given in Garner's Administrative Law is "the law relating to the administration of Government". Administrative law is more concerned with the procedures and processes by which Governmental actions are regulated. The Governmental responsibility to protect and to care for its citizens in providing with education, employment, training, houses, medical services, pensions and the like requires very huge administrative apparatus. While enacting laws and making rules all problems of detail and disputes that may crop up in different situations cannot be anticipated and necessarily the administrators are to be conferred with discretionary powers to deal with the problems that may arise in implementation of the law and the rules. The management of Administrative Laws dealing with the administrative actions and decisions is done by the Courts and Tribunals in exercise of the power of Judicial Review. The Courts and Tribunals while adjudging the legality or otherwise of the action or inaction on the part of the administrators exercises the power of Judicial Review. The remedy of Judicial Review is provided to ensure that the rights of the people are determined according to law. The power of Judicial Review would be meaningful and effective only if the power is exercised by the Court or Tribunal applying judicial reasoning. The Governmental power and powers of all other public authorities are subject to the law and any violation or transgression of the law by the Government or public authorities are amenable to the power of Judicial Review vested with the Courts and Tribunals. The Courts and Tribunals are to act within the frame-work of law and according to the self-imposed restrictions and limitations. The expression 'judicial discretion' comprehends the duty to enforce the standards laid down in the laws and the rules in general public interest and the power to strike down illegal decisions and orders. The Courts and Tribunals shall always remain impartial, unbiased and reasonable. The Judicial discretion should be founded on fairness and impartiality and on sound reasoning and cannot be exercised according to one's own whims and fancies. In exercising judicial discretion the Courts and Tribunals cannot act in defeasance of or step beyond the bounds of permissible judicial reasoning. The predictability of judicial decisions is the hallmark of the rule of law.

2. Definition and Perspective of 'Judicial Discretion'

In legal parlance the meaning of the word 'discretion' is "the power to decide, within the limits allowed by the positive rules of law, as to punishments, remedies or cause, and generally to regulate matters of procedure and administration". 'Discretionary power' in the rhetoric language of Coke is 'the golden and straight metwand' of law, as opposed to 'the uncertain and crooked cord of discretion' (Administrative Law by H.W.R. Wade & C.F. Forsyth, 7th Edition). Coke delineated discretion as science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their will and private affections (Rooke's case (1958) 5 Co. Rep. 139a, 140a). Lord Mansfield refined the concept of judicial discretion by importing a duty to be "fair, candid and unprejudiced; not arbitrary, capricious or biased; much less warped by resentment or personal dislike" (R. Vs. Askew (1768) 4 Burr. 2186). Lord Halsbury trimmed the notion of judicial discretion as a requirement to act "according to the rules of reasonand justice, not according to private opinion......according to law, and not humour......notarbitrary, vague and fanciful, but legal and regular" (Sharp Vs. Wakefiled(1891) AC 173. One of the important facets of the Rule of law is that decisions should be predictable. In Jaisinghani 's case (AIR 1967 SC 1427) the Supreme Court has held that "if a decision is taken without any principle or without any rule it is unpredictable and such a decision is antithesis of the decision taken in accordance with the ruleoflaw". In United States Vs. Wunderlich ((1951)342US98). Douglas J. has observed that "Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler......Where discretion is absolute man has always suffered".

It is a truism that all legal power is inevitably discretionary and all power has legal limits. The term 'discretion' lacks descriptive precision. A pedantic insistence on exercising the discretionary power within its true limits is the call of the day. The Courts have evolved self-created rules of limitation in exercise of the discretionary power vested with them. The standards and norms set by the Courts through long standing precedents enslaves them in exercising the judicial discretion in the decision making process and any efforts to escape from vitiates the decision as one reached arbitrarily and unreasonably. A normative Order must necessarily to be followed by Courts and Tribunals in exercising judicial discretion in the context and perspective of the facts and circumstances of each case. It is necessary therefore, that the Court and the Tribunal must exercise a conscientious and lively discretion and it cannot fly off at a tangent to reach any conclusion that it thinks is just and proper.

3. The decisions expounding on Judicial Review and Judicial Discretion

Judicial Review and Judicial Discretion are given una flatu and the one cannot be dissociated from the other. Both are intertwined judicial powers. There is a long procession of judicial decisions attempting to define and lay down the scope and perspective of judicial review and judicial discretion. Both the powers defy defenition with precision and exactitude. Lord Scarman in Nottinghamshire County Council Vs. Secretary of State for the Environment (1986 (1) ALL ER 199) has penned '"Judicial Review' is a great weapon in the hands of the judges; but the judges must observe the Constitutional limits set by our parliamentary system upon the exercise of this beneficial power".

In Lonrho plc Vs. Secretary of State for Trade and Industry (1989 (2) ALL ER 609). Lork Keits observed:

"Judicial Review is a protection and not a weapon"

In Amin, Re(1983(20 ALL ER 864). Lord Fraser explained that:

"Judicial Review is concerned not with the merits of a decision but with the manner in whichthe decision was made......Judicial Review is entirely different from an ordinary appeal, it is madeeffective by the Court quashing administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decisions on the merits for that of the administrative officer."

In Asif Hameed Vs. Slate of Jammu and Kashmir (1989 Supp. (2) SCC 364), the Supreme Court observed "Judiciary has no power over sword or the purse; nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits and if it is not so, the Court must strike down the action. It is the sentinel of democracy. Judicial Review is a powerful weapon to restrain the unconstitutional exercise of the power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint." It has been further held that" while exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise, the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers"

The locus classicus decision in Associated Provincial Picture Houses Vs, Wednesbury Corporation (1947 (2) ALL ER 680 (CA), popularly known as 'The Wednesbury case' had set down various basic principles relating to judicial review of administrative decision and statutory direction. Lord Greene dealt with the concept of reasonableness in exercise of judicial review power and explained that "a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his considerations, matters which are irrelevant to what he has to consider. If he does not obey those Rules, it may truly be said and often is said, to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority.... In another it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another".

Lord Greene also observed that'".... it must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body can come to. It is not what the Court considers unreasonable...."

In G.B. Mahajan and others Vs. Jalgaon Municipal Council and others ((1991) 2 SCC 91). Venkitachellai J, applied 'reasonableness' as the test of validity of administrative action. It has been held therein that" a thing is not unreasonable in the legal sense merely because the Court thinks it is unwise.....the reasonableness in administrative law must distinguish between proper use and improper abuse of power". The Supreme Court applied the Wednesbury Principles in Tata Cellular Vs. Union of India ((1994) 6 SCC 651), and catalogued the principles of limitation as (1) whether decision-making authority exceeded its powers? (2) Committed an error of law, (3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable Tribunal would have reached or, (5) abused its powers.

In a recent decision Indian Railway Construction Company Vs. Ajaykumar ((2003) 4 SCC 579), rendered by the Supreme Court in the year 2003 it has been held by placing reliance on the weighty reasonings in the decision in 'the Wednesbury case' that"... to arrive at a decision on 'reasonableness' the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law and not one which no sensible person could have reasonably arrived at, having regard to the above principles and must have been a bonafide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view". It went on to hold that "to characterise a decision of the administrator as 'irrational' the Court has to hold, on material, that it is a decision 'so outrageous' as to be in total defiance of logic or moral standards".

A decision which is perverse, that is to say, a decision reached without any evidence or material in support of or a decision shown to be vitiated by any error of law apparent on the face of the record is amenable to the power of judicial review and the Court/Tribunal is bound to interfere with that decision. In the decision in Kerala Solvent Extractions Ltd. Vs. Unnikrishnan (1994 (1) KIT 651), the Supreme Court dealing with the submission that the laxity of judicial reasoning will imperceptibly introduce slackness and unpredictability in the legal process and in the final analysis, corrode legitimacy of the Judicial Process has held that "in recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable tendency towards a denudation of the legitimacy of Judicial Reasoning and process. The reliefs granted by the Courts must be seem to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability".

Recently, Arijit Pasayat J. in a vintage decision in Uma Devi Nambiar and Others Vs. T.C. Sidhan (2004 (2) KLT 75 (SC) = (2004) 2 SCC 321), has held that "the word 'discretion' standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility". In the above judgment the observation of Lord Camden, LCJ., in Hindson and Kersey, (1680) 8 How, St. Tr. 57 that "the discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice folly and passion to which human nature is liable." has been quoted to expose the in-built danger within the power. The Supreme Court has elucidated the judicial discretion that "If a certain latitude or liberty is accorded by statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious or exempt from review. Judicial discretion is the concomitant of the power of Judicial Review and the exercise of the power of Judicial Review is controlled by the restrictions and limitations that are the concomitance of judicial discretion. The parameters for adjudging the legality or otherwise of an administrative decision are equally applicable for the exercise of judicial discretion which is vouched by an impressive array of authorities.

4. Judicial Decorum

Judicial decorum is a facet of judicial discretion and both should go in tandem. It must be the endeavour of both the judges and lawyers to maintain the dignity and decorum of the Court. In the decision in Chetak Construction Ltd. Vs. Om Prakash (1998 (4) SCC 577, it has been observed that "The judges are obliged to decide cases impartially and without any fear or favour.......It is of utmost importance to remember that Judges must act as impartial referees and decidecases objectively, uninfluenced by any personal bias or prejudice. A Judge should not allow his judicial position to be compromised at any cost. This is essential for maintaining the integrity of the institution and of public confidence in it. The credibility of this institution rests on the fairness and impartiality of the Judges at all levels. It is the principle of highest importance for the proper administration of justice that judicial powers must be exercised impartially and within the bounds of law. Public confidence in the judiciary rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices." In State of Karnataka Vs. Registrar General, High Court of Karnataka ((2000) 7 SCC 333), the Supreme Court exhorted that" Judicial decorum requires that Judgments and Orders should confine to the facts and legal points involved in the particular cases which Judges deal with. May be, sometimes Judges would, perhaps wittingly or even unwittingly, jut outside the contours of litigation, but even such overlappings should be within the bounds of propriety and sobriety. But there is no justification for traversing so far beyond the canvass as was done by the High Court in this case or to cover areas which are grossly extraneous to the subject-matter of the case". It is, therefore, necessary that the Courts and Tribunals should avoid embarking on unchartered oceans of justice and equity but should exercise discretion vested with it in accordance with judicial considerations and well established principles.

5. Abuse of Discretion

Abuse of power is often referred to in contradistinction to fairness in action. Obligation to act fairly was evolved to ensure the rule of law and to prevent failure of justice. Administrative authorities as also the Courts and Tribunals cannot abuse or pervert the discretionary power merely because the power is discretionary. The discretionary power vested with the Courts and Tribunals should be exercised legitimately without fear or favour. Discretionary power should not be exercised malafide or with oblique motives or to favour a person or body of persons. The discretionary power should be exercised to grant relief to a person to which he is legally entitled and to refuse relief by giving a distorted sense to the rule or law applicable is abuse of power. Non-exercise of power vested with the Courts or Tribunals is also an instance of abuse of power and the expression 'abuse of power' comprehends a variety of conduct and the endeavour of the Courts and Tribunals should be to render justice and not to deny it on extraneous or irrelevant considerations. If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of discretionary power falls within the mischief of 'abuse of power'. "Judicial discretion when facts for its exercise are present, has a mandatory import" ((1980) 4 SCC162). "Discretion becomes aduty when the beneficiary brings home the circumstances for its benign exercise" ((1980) 4 SCC 162).

6. Exercise of Discretion on equitable grounds

The judicial rule of law for administering justice is to bring out the value judgments incorporated in the statutes. In the decision in AT.S. Bhoir's ((2001) 10 SCC 264), case the Supreme Court held that "Adjusting equities in exercise of extraordinary jurisdiction under Article 226 is one thing, and the High Court assuming the role of the Central Government and the Medical Council under Section 10A of the Act is a different thing. The Court cannot direct to waive the mandatory requirement of law in exercise of its extraordinary powerunder Article 226. It is not permissible for the High Court to di rect an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law." Again the Supreme Court reiterated the legal position in an emphatic language that "The High Court under Article 226of the Constitution is required to enforce rule of law and not pass an Order or direction which is contrary to what has been injuncted by law" ((2002) 2 SCC 560).

The unfortunate consequence that a person would suffer by reason of the setting aside of his appointment after a long period cannot be avoided on any equitable considerations as has been held in K. Shekhar Vs. V. Indiramma and others ((2002) 3 SCC 586).

7. Discretion of the Courts and Tribunals in entertaining petitions without exhausting anterior remedies

Alternative remedy is not an absolute bar for entertaining petitions. It is one of discretion and does not touch upon the jurisdiction of the Court or Tribunal. It is now well settled that the want of jurisdiction if is patent on the face of it, the alternative remedy will not stand in the way of entertaining the petition and granting relief. Likewise, if the proceedings complained of are vitiated by non-observance of the principles of natural justice, then the decision would be void and the alternative remedy cannot be barricaded off the entrance to the Court or Tribunal. If it is a fact that the alternative remedy is too costly, or ineffective or is cumbersome, the alternative remedy would be unavailing. There is a plethora of case-law on the point. A specific and clear rule has been laid down in State of UP Vs. Mohd. Nooh (AIR 1958 SC 86) as follows:

"But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued inspite of the fact that the aggrieved party had other adequate legal remedy."

A Constitution Bench of the Supreme Court has affirmed the above decision in. A. V. Venkiteswaran, Collector of Customs Vs. Ram Chand Shobraj Wadhwani (AIR 1961 SC 1506)."......We needonly add that the broad lines of the General Principles on which the Courtshould act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."

In Whirlpool Corporation Vs. Registrar of Trade Marks ((1998) 8 SCC1), the Supreme Court held and observed "Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which though old, continued to hold the field with the result that the law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution inspite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."

In the decision in Harbanslal Sahnia and another Vs. Indian Oil Corporation Ltd. and others ((2003) 2 SCC 107) the Supreme Court has held that "The rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, inspite of availability of alternative remedy the High Court may still exercise its writ jurisdiction in at least three contingencies: i) where the writ petition seeks enforcement of any of the fundamental rights; ii) where there is a failure of principles of natural justice or iii) where the orders or proceedings are wholly without jurisdiction or the virus of an Act is challenged." In T.K. Rangarajan Vs. Government of Tamilnadu and others (2003 (3) KLT 86 (SC) = (2003) 6 SCC 581), the Supreme Court reiterated that under Article 226 of the Constitution, the High Court is empowered to exercise its extraordinary jurisdiction in unprecedented extraordinary situation having no parallel and that extraordinary powers are required to be sparingly used and the facts of the case revealed that it was an extraordinary case, which call for interference by the High Court, as the State Government had dismissed about two lakh employees for going on strike.

8. Conclusion

This survey is an endeavour to indicate the extent of the range of judicial discretion. In popular thought and speech 'judicial discretion' is unlimited and unbridled. However, the power of judicial discretion can be exercised only within the confines of the standards of judicial fairness and within the frame work of law. To summarise:-

i) It is not legally permissible, in discretion, to act contrary to the well established principles of law and procedure. The decisions of Court or Tribunal cannot be delphic or oracular but must be predictable which is the quintessence of rule of law. Any unjustifiable departure therefrom would strike at the legitimacy of judicial process.

ii) Judicial discretion does not encompass the power to modify or qualify the law. A Court or Tribunal is legally obliged to follow reasonable reasoning and to apply judicially approved rules of conscience.

iii) The power of judicial discretion is coupled with the duty to act judicially, fairly and reasonably.

iv) The power of the Court is not only injunctive in ambit but is also remedial in scope and it is the solemn duty of a Court or a Tribunal to grant relief if the conditions do exist for granting it and refusal of relief, in discretion, can be done only if relief can be obtained by any other process of law.

Above all, 'impartiality' is the lodestar of judicial discretion.

Joseph Addison had said.-

" Justice discards party, friendship, kindred and is, therefore, always represented as blind".

"Justice carries a balance. The balance has always been the symbol of even-handed justice."

Lord Denning in Johnes Vs. National Coal Board (1951) 2QB 55 at 64 said that "Let the advocates one after the other put the weights into the scale- nicely calculated less or more- but the judge at the end decides which way the balance tilts, be it ever so lightly"

A fair administration of justice is the goal of our Constitution and the Judicial discretion must be applied with increasing sophistication to render even-handed justice to uphold the rule of law.

2015(2) KLT 1 (SC) -- Shreya Singal v. Union of India–
Expressive  Overreach

(By P. Rajan, Advocate, Thalassery)

Accolades galore, lauded with- Superlatives like land mark, historic, momentous – are only few, described by netizens and media the judgment rendered by Supreme Court, when it struck down Section 66A of the Information Technology Act, 2000 as it is violative of Article 19 (1) (a) of the Constitution – also Section 118(d) of the Kerala Police Act, 2011 by the same verdict as the provision is vague having a chilling effect on freedom of free speech. The judgment was relating to a public interest litigation, when two cases registered under Section 66A of the I.T.Act stirred a hornet’s nest some time back- arrest of two girls from Maharashtra for posting and liking a face book comment criticizing the shutdown of Mumbai Markets due to the death of Shiv Sena Supremo, Bal Thackerray and arrest of a Jadavpur University Professor for posting a cartoon in Cyber Network, Satirical though, allegedly ridiculed West Bengal Chief Minister Mamata Banerjee. 

Apex Court in the judgment considered mainly the principles laid down regarding freedom of speech as envisaged under the Constitution and the reasonable restriction theory detailed in Article 19(2), basing on case laws.  It is to be noted that the twin cases stated above registered under the I.T.Act as the facts revealed, it was nothing but police’ ignorance rather excess without scrutinizing the legal requirement to press in to service Section 66A of the I.T.Act, the comments allegedly made so also the contents. It is fundamental that, if the message or tweet became viral, intention was to cause annoyance or having menacing character under cyber law, Section 66A is the relevant provision to be applied against the offender and no protection can be claimed in the guise of constitutional rights.  Freedom of speech does not mean, liberty to propagate anything, one likes, by any means. I.T.Act 2000 was introduced after proper study of similar laws prevalent in countries like U.S.A., U.K. and Australia and after due consultation with several stake holders- standing committee of the Parliament also scrutinized before presenting the relevant bill.

Supreme Court in the verbose ruling considered identical provisions in the Penal Code when an offensive or known to be false message is published with the aid of computer resource, ie. Sections 294 and 499 I.P.C..  Section 499 I.P.C. is meant for two types of offences coming within the ambit of that provision, libel and slander.  The former can be proved with documentary evidence but the later is harder to prove by the aggrieved but cyber crime cannot be brought within the purview  of Section 499 I.P.C. because I.T.Act is strictly meant for cyber crimes only and no specific law is enacted to regulate and control cyber space use, like internet, face book being accessed by savy persons (paras. 42, 43).  In prosecutions under 499 I.P.C. if the subject matter is a printed material like news paper report there is P.R.B Act,  Press Council of India Regulations too, to monitor and favour  fair journalism.  Apart from I.T.Act there is only intermediary guidelines Rules 2011 to oversee cyber crimes, not meant to strangle fair practice of freedom of expression. To matters published in print media, access is not available to all but internet, face book, etc. can be accessed even by an illiterate as just a click is required.  Manifold increase of electronic media pave way for use and misuse by several and even national security would be affected unless mendacious messages are checked and men behind it are brought to book. Posts and tweets derogatory, black mailing affect even tolerant groups resultantly negative fallout would be the outcome. If there is no requisite penal provision to prosecute cyber crime offenders it would be a fear free period for imposters and persons who are active on social media with questionable intention.

In the two cases registered under Section 66A of the I.T.Act, mentioned earlier legality and maintainability were the issues came up for consideration before the Supreme Court. As stated, both the cases were registered not on legal grounds but on misconception of law or on extraneous considerations. The Court could have ordered termination of further proceedings in those cases on the ground of abuse of process of law, desirable to direct for re visit of the provision of law in question instead of scrapping the section as such, in effect thrown the baby away with the bath water.

Expressions in Section  66A are open ended and undefined according to the Apex Court, but the wordings of the sub clauses would go to show that the provision as a whole is self explanatory and by visualizing facts of each case, cases can be registered and proved by scientific evidence. Even simple messages through handsets are being stored in servers first and data could be procured by getting the details from mobile phone companies. Identical provision in the Kerala Police Act, Section 118 being in a state enactment words seem to be vague and in a way Section 66 A overrides Kerala Police Act, Section 118. The observations made by the Apex Court regarding this provision of Police Act are just and legal as it appeared to be not well defined, on the other hand Section 66A is self serving, satisfactorily worded capable of proper application.  As the provision is erased, masqueraders and imposters can avail social media as they wish for wrong reasons by spreading incorrect messages, to black mail persons, relating to national security matters also as no law regarding violation of cyber laws is available to bring to book such persons.

A lie can travel half way around the world, while the truth is putting on its shoes.                                                                                                                                 -- Mark Twain