An Appraisal to Praveen v. Ismail- 2005 (1) KLT 559

(By G. Krishna Kumar, Advocate, Ernakulam)

This article is intended only to share my thoughts on the decision rendered by the Honourable High Court of Kerala in Praveen v. Ismail 2005 (1) KLT 559 wherein it was held that provision for condoning the delay in filing the complaint as per N.I. Amendment Act cannot be invoked in a case where order of acquittal was in the year 1999, before the coming into force of the Amendment Act even though the Appeal was heard by the Court after the amendment Act came into force.

The Appellant/Complainant in the above said case contented that the Negotiable Instruments Amendment Act, 2002 is applicable to pending proceedings as well, in view of the dictum laid down by the Apex Court in Shivasakthi Housing Co-operative Society v. Swaraj Developers (2003 (2) KLT 503 (SC)). The Honourable Supreme Court in Sivasakthi Housing Co-operative Society case (Supra) held that amendment to the procedural laws shall have retrospective effect and is equally applicable to pending proceedings unless otherwise specifically provided in the Act.

The Honourable High Court declined to apply the dictum laid down by the Apex Court in Shivasakthi Housing Co-operative Society case (supra) for the main reason that the case in hand is a case where the accused has a vested right because of the acquittal based on the law then in force.

Furthermore, the Court appreciated the fact that the Appeal was filed in June 1999. Amendment Act came into force on 6.2.2002. The Court could have disposed of the appeal before the Amendment Act came into force and due to pressure of work, the appeal was happened to be heard only in 2004. So accused can't be put into prejudice due to such delay.

According to me the decision rendered by the High Court speaking through his Lordship Justice K.A. Abdul Gafoor in the above case is a silver lining in the criminal jurisprudence.

Apart from the reason stated by the High Court, the above decision involves following legal aspects which will come to the rescue of the accused in the instant case.

First point is that the decision rendered by the Apex Court in Shivasakthi Housing Cooperative Society's (supra) case is not at all relevant in this case. That was a case wherein applicability of re visional powers of High Court u/S.115 of the CPC was considered. The Apex Court held that revision is only a procedure so change of law during pendency of proceeding is having retrospective effect and is applicable to pending proceedings unless otherwise specifically provided in the statute.

It is settled law that no party in a lis can claim that particular procedure to be followed in his case. While pendency of a matter, if a procedural law is amended it is having retrospective effect and the amended provision shall apply to pending matter. The defence of limitation is one of the defence available to a party in a lis. That means limitation is one of the right to defence available to a litigant. Enlarging or reducing limitation period is not a mere procedure. It affects the right of a party. If that be so, any amendment which affects' right of a party shall have only prospective effect unless there is contra indication in the Amended statute. Hence the law which affects right of a party shall be the law at the time of institution of proceedings unless otherwise specifically provided in the Amendment Act. The Court of Appeal in Lewis v. Lewis (1984) (3) WLR 45), relying on it's earlier decision (Yew Ben Tew v. Kenderaan Bas Mara, (1983) 1 AC 553) held that right to claim limitation is a right and not a procedure. The Apex Court in Lachchmandas Arora v. Ganesh Lai ((1999) 8 SCC 532) held that law of limitation has to be applied with all its rigor when statute so prescribes.

The next point is that an accused in a criminal case is entitled to constitutional safeguard provided to him under Article 20(1) of the Constitution. Art 20(1) of the Constitution which provides safeguard to an accused in a criminal case reads as follows.

"Art 20. Protection in respect of conviction for offences.--(1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence."

The first part of clause (1) of Art. 20 provides that "No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence."

The Apex Court in Chief Inspector of Mines v. K.C. Thapper (AIR 1961 SC 883) held that if an act is not an offence on the date of its commission it cannot be an offence at the date subsequent to its commission. The Honourable Kerala High Court in Pareed Lubha v. Nilambaram (AIR 1967 Ker. 155) held that if the non-payment of the Panchayath tax was not an offence on the day it fell due, the defaulter could not be convicted for the omission to pay under a law passed subsequently even jf it covered older dues.

Before the N.I. Amendment Act came into force, after the lapse of statutory period, the complaint u/S.142 is barred and the limitation cannot be enlarged by way of condonation of delay. As per the Amendment Act, even after the lapse of statutory period, on sufficient ground the court can condone the delay in institution of complaint. In the present case, acquittal by the trial court was as early in June 1999 for the reason that the complaint is time barred. As per the law then in force statutory period for instituting complaint cannot be extended by condonation of delay. So an accused cannot be convicted on a time barred complaint as per the law in force at the time of initiation of the complaint. Change of law granting power to extent statutory period for filing complaint, came into force only at the time of pendency of Appeal. In view of the Constitutional safeguard provided to an accused u/Art.20(1) of the Constitution, he cannot be convicted in such circumstance.

So in my humble view, on the above mentioned legal aspects also, the decision rendered by the Honourable High Court in Praveen v. Ismail, 2005 (1) KLT 559 is good law.

High Court Needs a Green Bench

(By Kaleeswaram Raj, Advocate, Kochi)

The court should also evolve a new victimology in environmental cases

"Court rooms, like novels, blur the distinction between fact and fiction. They are self enclosed spheres in which what matters is not so much what actually took place in the real world, but how it gets presented to the jury. The jury judge not on the facts, but between rival versions of them. Since post modernists believe that there are no facts in any case, just interpretations, law courts neatly exemplify their view of the world" - Terry Eagleton.

What Terry says in another context (of Michael Jackson trial) is somewhat true in environmental cases as well. Often the real situations are not comprehended and records, data or even expert opinions do not reflect ground realities or ground water realities, for that matter. This methodological limit of adversial practice, when accompanied by reluctance for constitutional interpretation may result in chaotic situation.

Recently, I saw a colleague in the Court saying sorry for citing a constitutional provision while persuading a learned Judge for admission of his cause and for a legitimate interim order. The Judge was apparently annoyed on the conduct of the lawyer who "dared to make a constitutional survey" when "others were impatiently waiting for taking up their matters for admission". The lawyer in turn, was also persuaded by his friends to withdraw the Writ Petition as a penalty for the offence (of arguments).

The allergy towards constitutional provisions is more evident in environmental causes. Hundreds of judgments on environmental issues do not even refer to Article 21, and much less to the "precautionary" or "polluter pays" yardsticks evolved in MC Mehta series of cases. The judgment in Hindustan Coca Cola (2005 (2) KLT 554) is only one noticed by the public. In cases of pollution, hill excavation, sand mining and industrial emission the court often verifies the records and tries to "balance the interests" without any deeper examination of the plight of the victims by relying on the judicially evolved constitutional provisions. I would dare to call this (recent) phenomena as "de-constitutionalisation of the constitutional court". The process has been especially damaging in social action litigations in the realm of ecology,

Incidently, I may recall a Singapore experience. Few years back, I had an occasion to make a casual visit to the Singapore Supreme Court. The country as well as the court was not familiar. The city, second to Washington in commercial race, was amazingly sophisticated. I was scared to enter the court. I sat on a chair at the back side. I felt like a virtual outsider from the third world. However, by accident, the moment a lawyer there realized that I am practising at Kerala High Court, he became overwhelmingly jubilant and said-"We usually wait for judgments from Kerala High Court in important constitutional/Human rights issues". The expectations are enormous. The challenges too.

Economic reductionism is incapable of understanding the complexities of the bio physical milieu. It would even lead to the "ecological tyranny of the bottom line" as John Bellamy Foster puts it, (Corner Stone, 2003). Therefore, environmental cases make a class in themselves. It is insufficient to merely "reconcile the issues". Even the precautionary principle and polluter pays principle have become inadequate to meet the challenges of the real situations. Those were principles of the eighties which were rooted in the predictions of the Stockholm rather than on the empirical knowledge of the third world. The new century, on the other hand, has translated the predictions into reality. The victims are invariably the best judges of their cause. After an initial filtration of the bona fides, the victims should be allowed to speak out. Life of environmental law also is "not logic, but experience".

This does not mean that reference to the constitutional provision would necessary mean comprehension. Thus even after a detailed exploration of precedents, in Somon v. Geologist (2004 (3) KLT 577), the Court only held that the prescription of 50 meters as the minimum distance between a mining unit and nearby public road, residence etc. is not unlawful or unconstitutional. The case involved questions with respect to conditions in the mining permit. The permit issued as per the Mineral Concession Rules contemplate 50 meters as the prohibited distance of the mining unit from a residential building. The court okayed it. It is submitted that the judgment suffers from limitations of textualism. What is missed is the absurdity of a legislation which holds that beyond 50 meters, things are safe. The result is tragedies after tragedies caused by bigmen and bigmines. There are instances of six consecutive deaths due to fall of stones from an illmanaged blasting unit in South Kerala. In Rural Litigation and Entitlement Kendral (AIR 1985 SC 652) the Supreme Court directed to close down lime stone quarries in the larger interest of public health. In M.C. Mehta (AIR 1996 SC 1977) the Supreme Court directed closure of mines around Badkal Lake and Suraj Kund. Therefore, a fragile ecology of a State like ours cannot afford the "unbearable lightness" (Kundera) of Soman supra in the year 2004.

Now come to noise pollution. The court in a recent judgment in Parivthran K.V. v. Dist. Superintendent of Police (2005 (1) KLT 650) says that use of loud speakers in religious or cultural functions cannot be allowed beyond 12 PM. It is submitted that this indulgence till 12 PM does violence even to the legislations on noise pollution.

True that legislative failures were fatal. Failure to legislate also was fatal in certain specified areas like abolition of plastics and preservation of hill soil especially in laterite hills which are water reservoirs of the earth. But judicial comprehension is a need in itself. Even dearth of legislation is not valid justification for judicial inertness.

In an ecological cause, sometimes extreme recommendations alone can provide even moderate solutions. Implementation of ecofriendly verdicts also is a troublesome area. No wonder, those are sometimes implemented only in Contempt cases which follow. Often these are not implemented at all despite the possibilities of contempt jurisdiction. Number of such cases are on the increase in recent times.

In Vellore Citizens' case (1996) the apex court directed the Madras High Court to constitute a Green Bench. The Calcutta and Madhya Pradesh had experimented it somewhat successfully, even earlier. Kerala should follow the suit. But mere constitution of the Bench may not be sufficient. The Green Bench should, however, apply the new victimology in environmental justice so as to reach meaningful solutions to questions of survival.

Judges Sans Judgments

(By K. Ramakumar, Advocate, Ernakulam)

Pronouncing judgments should be the prime priority of persons who don the mantle of Judge. A Judge speaks through - and shall speak only through — his judgments. His vision, views, social commitment etc., are ordinarily expected to be reflected in his judgments, than just barratrous and boring facts.

But then, if judgments are not forthcoming at all, how does a Judge speak? In Seminars, Receptions, Conventions? Fortunately healthy precedents evolved over the years forbid Judges going vocal in such stages. Silence — often golden, is the price that had to be paid for choosing to be a Judge.

And therefore, the greatest disservice a Judge can do is to delay judgments and deny justice. True, no time frame has been fixed in any statute for rendering judgments. Also true, even the Apex Court cannot wield its administrative baton against the High Courts. Look however at the stern words spoken by the Supreme Court about delaying judgments:

"If delay in pronouncing judgments occurred on the part of the Judges of the subordinate judiciary the whip of the High Court studded with supervisory and administrative authority could be used and it had been used quite often to chide them and sometimes to take action against the erring judicial officers. But what happens when the High Court Judges do not pronounce judgments after lapse of several months and perhaps even years since completion of arguments? The Constitution did not provide anything in that area presumably because the architects of the Constitution believed that no High Court Judge would cause such long and distressing delays. Such expectation of the makers of the Constitution remained unsullied during early period of the post-Constitution years. But unfortunately, the later years haveshown slackness on the part of a few Judges of the Superior Courts in India with the result that once the arguments in a lis concluded before them and the records remain consigned to hibernation. Judges themselves normally forget the details of the facts and niceties of the legal point advanced. Sometimes the interval is so long that the Judges forget even the fact that such a case is pending with them expecting judicial verdict. Though it is an unpleasant fact, it is a stark reality".

Nevertheless, there are Judges who had left behind as many as three hundred judgments undelivered when they moved homeward from another Court and a few more hundreds when they went back. In a case from Madras it took five years to pronounce judgment after a civil appeal was heard and no less a person than the Attorney General of India argued that, that itself sufficient to set aside the judgment. See AIR 2000 SC 775. In Patna, well after two years, no judgment was in sight, AIR 2001 SC 3175.

Sadly laments Sri. Justice K.T. Thomas in that case:

“Quarter of a century has elapsed thereafter but the situation, instead of improving has only worsened. We understand that many cases remain in area of "judgment reserved" for long periods. It is heartening that most of the Judges of the High Courts are discharging their duties by expeditiously pronouncing judgments. But it is disheartening that a handful of few are unmindful of their obligation and the oath of office they have solemnly taken as they cause such inordinate delay in pronouncing judgments. It is in the above background, after bestowing deep thoughts with a sense of commitment, that we have decided to chalk out some remedial measures to be mentioned in this judgment as instructions".

The Court then formulated five modalities to obviate the inconvenience to the litigants in the event judgment is delayed. They just remain formulations even today.

It is not for nothing that countries like Philippines, have chosen to impose fines on Judges, who do not deliver judgments within a time limit set.

A great Article in our Constitution — Art. 21 -- assures to the people of this country ant even to foreigners speedy justice.

"The right of speedy trial is part of Art. 21 of the Constitution of India" (2001) 4 SCC 355.

This magnificent right receives protection at the hands of Judges of superior Courts. What then happens, if protectors turn out to be detractors?

In the words of Sri Justice Sethi:

"Conferment of right of appeal to meet the requirement of Art. 21 of the Constitution cannot be made a fraught by protracting the pronouncement of judgment for reasons which are not attributable either to the litigant or to the State or to the legal profession. Delay in disposal of an appeal on account of inadequate number of Judges, insufficiency of infrastructure, strike of lawyers and the circumstances attributable to the State is understandable but once the entire process of participation in justice delivery system is over and only thing to be done is the pronouncement of judgments, no excuse can be found to further delay for adjudication of the rights of the parties, particularly when it affects any of their rights conferred by the Constitution under Part-Ill."

Adds Justice Sethi:

"In a country like ours where people consider the Judges only second to God, efforts be made to strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to raise eye-brows, sometime genuinely which, if not checked, may shake the confidence of the people in the judicial system. A time has come when the judiciary itself has to assert for preserving its stature, respect and regards for the attainment of the Rule of Law. For the fault of a few, the glorious and glittering name of the judiciary cannot be permitted to be made ugly. It is the policy and purpose of law, to have speedy justice for which efforts are required to be made to come to the expectation of the society of ensuring speedy, untainted and unpolluted justice". (Anil Rai v. State of Bihar).

The Chief Justice of India has declared the year 2005, as an era of excellence for the Indian Judiciary. Excellence in any field can be achieved only by enduring efforts. Speedy justice cannot be spanked neither by shibboleths nor by saltation. It calls for commitment to the people, to the Constitution and of course, to the Country.

WE, OWN THE HIGH COURT

(By K. Ramkumar, Advocate)

This is in humble response to a question posed by a war-scarred veteran of the Bar who asks "Who owns the High Court". (2005 (2) KLT Journal P.25). Undoubtedly We, the people of India.

Not We, the Variers of India but the people of India encompassing the Harijans, the Girijans, the Chamars and the Chowdharies, the Brahmins and Boomihars, the Nairs and Naidus, and the vast multitude of humanity covering people who speak different languages, dialects, wear different dresses and pray from Mandirs, Masjids, Churches & Gurdwaras all sons and daughters of Bharath Matha. It is We who not only own the High Court but are its creators, giving to its Judges the powers, perquisites, privileges and the prestige to sit in judgment over ourselves. It is, We, the people who pay for the "administrative expenses of the High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the Court charged upon the Consolidated Fund of the State" (See Art.229(3)). S.327 of the Code of Criminal Procedure mandates that the place in which any Criminal Court is held for trying any offences, shall be an open court "to which the public generally may have access, so far as the same can conveniently contain them". The High Court therefore, dealing with Criminal matters undoubtedly should be open to the general public who should have free access to it as of right.

The open trial system is a legacy inherited from the British, which fortunately for the last fifty odd years survives not tinkered with by the Indian Judges. This ensures access to the people to all the courts in the country and to the Supreme Court, where a space is earmarked exclusively for the members of the public. Any citizen of India can watch the proceedings in any court to re-assure himself that justice is open, transparent and dispensed with in public, and not in closed door chambers. But how then can this right be enforced in Court buildings where lawyers themselves have to jostle about for want of even sufficient space to sit? Every chair in the Kerala High Court appears to be sought after and not even legal practitioners find it easy to get themselves seated waiting for their cases to be called. Add that to the alarming docket explosion, not stemmed solely due to want of managerial skills or will and the absence of introduction of modern sophisticated technology which has gained ground in every other institution, not to speak of the total ostracisation of the lawyer community as irrelevant or insignificant in such matters. Sri Justice H.R. Khanna has this to say on the Lawyer's role:

"In projecting the image of the courts, in tackling the problem of arrears, in dealing with the question of delay in the disposal of cases, the members of the Bar no less than those on the Bench, have a significant role to play. Without their active co-operation, it would be difficult to bring about real improvement or any substantial change. If arrears go on accumulating and piling up, it would create mass disenchantment and result in the collapse of the judicial system".

With the advent of what is known as 'public interest litigation' people throng to the courts with great causes to be got adjudicated.

These litigants however, who form part of We, the people of India, find not an inch of space either in the High Court or in any other court buildings in the State, to which they are summoned, either to sit, wait or rest as the leading lawyer laments in his article "Who owns the High Court". In all civilised countries court buildings are designed primarily for the people and therefore do provide them atleast basic requirements like rest rooms, waiting spaces etc. etc. In the Family Courts of Australia, there are separate waiting rooms for men and women not to mention of the cosy restaurants attached. The House of Lords is functioning in a building with spacious steps which can be climbed up with ease. So is the Supreme Court of the United States and also the courts in Strand Road, London, and the Court complexes in Colombo, Singapore, Kulalampur etc. constructed in Gothic architecture. The International Court of Justice in the Hague, is housed in a two storied building structured in Orthodox European style. The High Court buildings in India like in Allahabad, Chennai, Kolkata, Mumbai, Jabalpur etc. do not have more than two or three floors needing no lifts with wide and airy verandhas where litigants can relax. In the Delhi High Court there is a foyer designed solely for the litigants who can also watch the electronic monitor indicating the disposal of cases in each court. The new and fashionable court buildings in Chandigarh and in Gandhinagar, also have given the pride of place to the public.

How and why that in Kerala there are no court rooms at all or buildings worth the name? The pride of place among courts, still belongs to Vanchiyur, ironically, an elementary school building transformed into a temple of Justice. Look at the Family Courts where miserable looking mothers, with babes in arms, keep on standing from morn to eve, cursing the day they were born with not even facilities to ease themselves. Don't they belong to "We the people of India"?

How then can, a concrete monster, coming up, to be exact spruced up, be the New High Court complex, defiling the skyline of a spectacular and breath taking beauty spot of Kochi? No effort has been spared to ensure that the gentle and salubrious breeze from the west, free of cost never enters the building and to curb it creating an artificial climate, by installing heavy air conditioners shutting all the openings westerly. While those who do not spend even half an hour at a stretch appear to have been allotted the lion's share in the building, those who waste their whole day, waiting for admission, instructions, statements, counter, hearing lists, disposal list and judgments never in sight, with anxious and agonising hearts damning the day they decided to go to court, have only slippery verandhas" wet at monsoons to spend a good part of their lives. [It can be five to eight years easily]. And if the fortunate among them come in cars, there is no place to park, with the Traffic Police Station, perilously close by. Is this the way to treat "We the people" of India? In fine, let me quote the former Chief Justice of United States Supreme Court, Warren Burger.

"The harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated. The notion -that ordinary people want black-robed judges, well-dressed lawyers and fine panelled courtrooms as the setting to resolve their disputes, is not correct. People with legal problems, like people with pain, want relief and they want it as quickly and inexpensively as possible!

and from Mr. Justice Brennan, also of the American Supreme Court:

"Nothing rankles more in the human heart than a brooding sense of injustice. Illness, we can put up with, but injustice makes us want to pull the things down. When only the rich can enjoy the law, as doubtful luxury, and the poor who need it most cannot have it because its expense puts it beyond their reach. The threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness".

Brother and Sister lawyers - Are you listening?

Who Owns the High Court?

(By T.P. Kelu Nambiar, Sr. Advocate, High Court of Kerala)

To the best of my knowledge, the question 'who owns the High Court' is never asked. To the best of my information, the answer to the question is difficult to find. Having posed the question, I should try for an answer, to the best of my ability.

I began the quest from the beginning. The Constituent Assembly of India took up for

consideration the draft articles relating to the Supreme Court and the High Courts on 23rd May, 1949 and concluded the debates on 8th June 1949. I carefully went through the entire debates, but could not find an answer to the question. I also eagerly consulted B .Shiva Rao's 'The Framing of the Constitution', which, too, was silent on the subject. Seervai also drew a blank. I felt like a blinking fool. Casting away the blinkers, I read the Preamble to the Constitution. The people of India gave to themselves the Constitution, declares the Preamble. The High Court for the State is the creature of the Constitution, for the people of the State by the people. Therefore, does it not belong to the people? In my view, it does. But, is it considered to be so. I should think, no. Why? I shall make a humble attempt to explore, provisionally though.

The High Court is Judge-centered. The definition of 'Court' itself is Judge-related. So everybody thinks that the High Court belongs to the Judges. Lawyers also claim part-ownership of the High Court. Maximum facility in the High Court is for Judges. That is as it should be. The reasons are many and varied. Let nobody grudge it. Let us also concede the claim of lawyers and Advocates' Clerks and the staff of the High Court for a bit of it. But, what about the common man. What about the public at large. What about the litigants, in particular. What are the facilities provided for them in the High Court building, constructed with public money. Nothing worth the name. Litigants have no place to wait, sit or rest.

In modern and more polite times, I had seen certain Hon'ble Judges feeling offended by the presence of clients inside the Court room. We have been seeing almost everyday, and I, for one, have been seeing for over fifty years now, clients watching proceedings in their cases, standing at the doorway, leaning on the door frame, or peeping or peeking through the windows. What a pity; a pronounced inequality; they are not provided with facility to be comfortable in. a place, of which they are also owners, by constitutional right; and it is for them the judiciary is made, which fact is insufficiently remembered. Litigants are treated as aliens in their own building. I make myself bold to say that this indifferent and invidious treatment is unconstitutional.

I exhort the Government and Hon'ble the Chief Justice to look into this matter with the concern it calls, and do the needful to alleviate the inveterate injustice and rank discrimination, by providing decent and reasonable facilities in the High Court building to the litigants, nay the members of the public, THE PEOPLE OF INDIA, to watch the proceedings in courts, where Judges do a public act in the seat of justice, and to wait, sit and rest, with all concomitant facilities. I should think I have made a persuasive case for why the public should be provided suitable facilities in the High Court building.

Tail-piece: "When dealing with people, remember you are not dealing with creatures of logic, but with creatures of emotion, creatures bristling with prejudice and motivated by pride and vanity":

Dale Carnegie.