“Buprenorphine” -- The Bane of Kerala

(By P.N. Prakash, Spl. Public Prosecutor (Narcotics), High Courts of South Zone)

The Drug Enforcement agencies have come to notice a peculiar, but a very distressing, trend in the drug consumption pattern that is evolving in the urban centers of Kerala. The drug Buprenorphine seems to be in great demandall over Kerala and the distributors of this drug are busy making hay when the sun shines little realizing the adverse impact their greed is going to bestow on Kerala youth. The chemical composition of Buprenorphineis clearly given in item No.92 of the Schedule to the NDPS Act itself by virtue of which Buprenorphinehas been classified as a Psychotropic substance has been defined in S.2(xxiii) of the Act as any "substance, natural or synthetic, or any natural material or any salt or preparation of such substances or materials included in the list of psychotropic substances specified in the schedule to the Act”. If the above definition is split, the following factors emerge in the classification of a substances as Psychotropic substance:

(a) the substance should be included in the schedule to the Act;

(b) not only that substance, but also its salts and preparation.

It is common knowledge that only some elements like Oxygen, Hydrogen etc., can exist in free state on their own and most of the chemically synthesized substances should necessarily either in solid form or in liquid form. For instance "Diazepam", which finds a place in entry 43 of the schedule is a Psychotropic Substance that is available in solid form as tablets. So too Buprenorphine is manufactured with trade names Tidegesic, Bunogesic etc. in liquid form that is filled in air tight glass vials and the drug is classified as a schedule H' drug under the Drugs & Cosmetics Act and therefore it can be administered to a patient by injection, only on the prescription of a Medical Practitioner. It is a pain alleviator and is a non-therapeutic drug. Heroin/Brown Sugar addicts self inject Buprenorphine when they are unable to get Brown Sugar in order to satisfy their immediate cravings.

The solvent for Buprenorphine is water and the strength of the drug is indicated as 0.3 mg., 0.5 mg. etc. As said earlier Buprenorphine, the chemical compound cannot exist in isolation. It has to exist either in a solid or liquid medium. The Parliament was clearly aware of these scientific facts and that is why it has defined Psychotropic Substance as not only the base substance mentioned in the schedule to the Act but also any preparations containing such substance. The word “preparation” in relation to Psychotropic Substance has been defined in S.2(xx) of the NDPS Act as “any one or more such substance in dosage form or any solution or mixture, in whatever physical state, containing one or more such substance”. The words “such substance” refers to Psychotropic Substance mentioned in the schedule. A combined reading of the definition of Psychotropic Substance and Preparation would lead to the irresistible conclusion that Buprenorphine as such is a Psychotropic Substance and if it is found in a solution or mixture, then such a solution or mixture, as the case may be is also Psychotropic subbstance as a whole. In other words, Buprenorphine mixed in water and packed in vials is a Buprenorphine solution in liquid physical state and is therefore a Psychotropic Substance within the meaning of S.2(xxiii) of the NDPS Act and possession of it without valid authorizatic is an offence U/s.22 of the NDPS Act. For the purpose of determining the quantum of punishment, the Parliament has envisaged three categories of quantification of drugs viz, (1) Small quantity (2) Commercial quantity and (3) Quantity between small and commercial, by amending the NDPS Act in 2001. The Parliament has delegated the power to determine the small and commercial quantity for each drug to the Central Government. Accordingly, the Central Government, in exercise of that power has issued a notification dated 19.10.2001, in which the small quantity and commercial quantity for Buprenorphine has been fixed at 1 gm and 20 gms. respectively in item 169 of the said notification. In other words if a person is found in possession of 1 gm.of Buprenorphine he is liable to be punished upto 6 months imprisonment; if he is found in possession of 20 gms. and above is liable to be sentenced to minimum of 10 years imprisonment. If the quantity possessed falls between 1 gm. and 20 gms. the punishment may extend to 10 years of imprisonment. One vital of Buprenorphine will contain 2 ml. (approximately 1.5 gms) of Buprenorphine preparation in liquid form and on the label struck over vial the ingredients of the preparation will be mentioned. The label will also show the potency of Buprenorphine 0.3 mg. A vial is also called an ampule.

In Ouseph v. State of Kerala (2004) 4 SCC 446) the accused was found in possession of 110 ampules/vials of Buprenorphine without a valid authorization. He was rightly convicted and sentenced to 10 years imprisonment by the Kerala Courts. In the Supreme Court, a peculiar calculation was adopted whereby the weight of Buprenorphine in one vial was taken as 0.3 mg. and by multiplying it with the number of vials namely 110, the total weight was arrived 66 mgs. (0.3 mgs x 110). Since 66 mgs. is less than the 1 gm (the small quantity prescribed by the Central Government) the benefit of it was given to the accused. This method of calculation was adopted by the Supreme Court in Hussain v. State of Kerala 2000 (3) KLT 805 (SC) and Sajan Abraham v. State of Kerala, 2C05 (2) KLT 122 (SC) and the accused therein reaped rich benefits.

The above method of calculation adopted by the Apex Court, in this author's humble opinion is not only legally untenable but is also fraught with great dangers in as much as a person caught with 100 vials near schools and Colleges, will go scot free. The reference to 0.3 mg. on the label over the vial, can by no stretch of imagination mean the weight of Buprenorphine. It only refers to the potency of the drug. In our daily life we see Medical Practitioners prescribing antibiotics like Cifron 250 mg., Cifron 500 mg. etc. This does not refer to the weight of the drug in in milligrams but to the potency of the drug in milligrams. So the fundamental fixed factor for multiplication, adopted by the Apex Court in the above 3 cases is erroneous. Further, the Apex Court had failed to consider the bare definition of the words Psychotropic Substance and the word Preparation is S.2(xxiii) and 2(xx) of the Act which has been explained vividly above. The Apex Court was persuaded by the first proviso to R.66(2) of the NDPS Rules which permits a person to possess Phychotropic Substance for his personal medical use upto 100 dosage units at a time. The expressions “Dosage Unit” is not defined either in the NDPS Act or in the rules framed under the Act. ‘Dosage Unit’ in common parlance means the quantity of theraupatic drag to be administered to a patient, which determined by a qualified Medical Practitioner based on the age of the patient and the nature of his illness. That is why ‘Dosage Unit’ has not been defined anywhere.

A similar issue arose before a a Division Bench of the Kerala High Court in Shaji v. Kerala State (2004 (2) ILR Ker. 600) and this author was requested by the investigating Agencies to advance arguments. The Division Bench had laid down the correct law based on the definition of the words Psychotropic Substance and Preparation. At the time when the above case was being heard, the judgment of the Apex Court in Ouseph’s case and Hussain’s case was not reported in any law journal. Had the said judgments been published, the very reference by learned single Judge to the Division Bench in Shaji’s case would not have arisen at all. Subsequent to the publication of the said Supreme Court judgment in the law journals, a learned single Judge of the Kerala High Court had once again referred the matter to the Division Bench in Siyad K.Y. v. State of Kerala (J/D. 13.10.05 in Bail Appl. 5507/05 - 2005 (4) KIT 590). In this judgment the learned Judges have fallen into another error, if this author may with due respect say so, in misconstruing Entry 239 of the Central Government notification dated 19.10.01. The learned Judges have further remarked that "But item 239 of the notification was not pointed out before the Division Bench (Here the Division Bench they refer to is the ruling in Shaji’s case – 2004 (2) ILR Ker. 600). Since Shaji's case was handled by this author himself, it is within his competence to say that the Division Bench in Shaji's case was taken through entry 239 of the notification and rightly they did not refer to it in their judgment because it has no relevance at all. Item 239 of the notification is a residuary item which deals with a substance which is a preparation/mixture containing two or more Psychotropic Substance. Item 239 does not deal with a preparation containing only one Psychotropic Substance. A bare reading of item 239 will make it crystal clear. In Shaji’s case it is not the prosecution case that the seized contraband had Buprenorphine and another Psychotropic Substance in the vail. The two astrix stars in the entry opposite to item 239 will clinch the issue. An illustration will set at rest all doubts. A person is arrested by the Police for possessing 20 gms. of a substance suspected to be a Psychotropic substance. Sample drawn therefrom, is sent to the Chemical Examiner for analysis. The Chemical Examiner opines that the tested substance is a preparation containing Buprenorphine and Amobarbital. The notification dated 19.10.01 shows Amobarbital at itemNo.168 and the small quantity is shown as 20 gms. and the commercial quantity is shown as 500 gms. The same notification shows Buprenorphine at item 169 and the small quantity is shown as 1 gm. and the commercial quantity is shown as 20 gms.

__________________________________________________________________

                                                               Small Quantity          Commercial Quantity

__________________________________________________________________

168     Amobarbital                                       20 gms.                   500 gms.

169     Bupernorphine                                 I gm.                         20 gms.

239     Any mixture or preparation

            that of with or without natural           *                                   **

            material of any of the above drugs.

__________________________________________________________________

* Lesser of the Small Quantity between the quantities given against the respective Narcotic Drugs or Psychotropic Substances mentioned above forming part of the mixture.

** Lesser of the Commercial Quantity between the quantities given against the respect! vi Narcotics Drugs or Psychotropic Substances mentioned above forming part of the mixture.

Now in the example, under which entry can be seized drug be classified? Whether a Amobarbital or as Buprenorphine? Only to resolve such disputes, item 239 has been included as a residuary item and in the present example the small quantity and commercial quantity for the seized substance, which is a preparation containing a Psychotropic Substance, should be worked out by applying the formula enunciated by the astrix marks given in the foot note of the notification. By applying the said formula the small quantity of the substance will be 1 gm. and the commercial quantity of the substance will be 20 gms. Since the accused in this illustration was found to be in possession of 20 gms. of the substance, he will be liable for punishment U/s.22(c) of the NDPS Act for possessing commercial quantity of Psychotropic Substance.

In fine, the law down by the Division Bench of the Kerala High Court in Shaji’s case is correct but that stands over ruled by virtue of the Supreme Court Judgment in Ouseph’s case, Hussain’s case and Sajjan Abraham’s case in view of Art.141 of the Constitution of India and not otherwise. To quote Justice Brennan of the Supreme Court of America “We on this Court are not final because we are infallible; we are infallible because we are final”.

Incorporation of S.498-A in Indian Penal Code

By Criminal Law (Second Amendment) Act, 1983

(By P. Bhaskaran, Advocate, Guruvayoor)

The noble object of incorporation of S.498-A in the Indian Penal Code 1860 by Amendment Act of 1983 was undoubtedly meant to protect married woman from being ill-treated or forced to commit suicide by her husband and his relations.

By this article the writer intents to analyze various facts to ascertain whether the desired object could be achieved and the said section is being widely, misused and whether the said provisions has resulted in breakage of sacred matrimonial relations of several couples, rather than protecting the married woman as envisaged by the said amendment.

When already there are existing provisions to protect the married woman in Dowry Prohibition Act, 1961 and Indian Penal Code to deal with such eventuality as stated in the said section was it advisable to incorporate the said section in Indian Penal Code without making adequate provisions simultaneously for protection of innocent husbands and to deal with illegal and/or mala fide and motivated acts and against false complaints made by the wife.

23 years back when Chapter XXA was added incorporating S. 498-A in Indian Penal Code by 1983 Amendment Act, the social, economic and educational condition of the women in our country was different. By efflux of time women have become well educated, cultured, economically and socially well placed and competent to meet any challenges today, and women are at par, if not on top, with their counter part in all walks of life and are holding highest positions in Executive, Judiciary, Burocrates, Defense, Police, Aviation, Legislators and Parliamentarians and what not. Is it therefore, advisable to treat the women of today with those of 25 years back and continue with the legislation made 25 years back?

Involvement of the women in social, cultural and educational fields have changed their outlook. A good number of women today select their life partners comparing to the situation prevailing at the time when the said section was incorporated. The then existing joint family system had also vanished long ago. Today, the matrimonial house of the wife is the house wherein the wife and husband live separately. Large extent of today's women work in several fields, either separately in the same office they work together and during such acquaintances they select their own life partners. The concept of leaving the couple after marriage in joint family is a bye gone story which was the root of married women being ill-treated forcing them to commit suicide.

But today because of the wife being highly educated most of the dowry deaths are the result of incapability of the wife to adjust themselves which ought to have been avoided if they could have been able to adjust themselves.

A good number of the women select their life partners themselves in comparison within the earlier system of arranged marriages. Being well educated the women of today are subjected to either (i) love marriages, or (ii) arranged marriages, comes to the matrimonial house with high expectations and when their expectations and aspirations could not be met with, they get disgusted, whereby the married life become horrible not only to the wife but also to the husband and they find themselves difficult to adjust. The wife is thus 'expected to explode, go back to her parents, make allegations against her husband and under advises she moves to the local police station and the mischief then starts. Normally the reasons for disputes and differences arises on the grounds (i) educational disparity, (ii) economic disparity, (iii) position of the wife in employment, (iv) desire of the wife to acquire material satisfaction, (v) desire to climb up in the society and the ladder being short, (vi) incapability in adjustment with circumstances and (vii) wrong determinations etc.

The outcome of all the above results in unnecessary and unwarranted quarrels . outbursts by the wife and filing complaints against the husband and his relatives with local police causing harassment to the husband and his relatives, and ultimate destruction of the noble marital relationship.

Since the offences under S.498-A are non-bailable and non-compoundable, it is necessary to compare the other sections contained in the Indian Penal Code dealing with offences against women, and such comparison will reveal the necessity of considering making legislation to prevent a spouse from making false allegations against her husband and to protect the husband adequately in such eventualities.

i) Chapter XX of the Indian Penal Code deals with the offences relating to marriage and contains Ss.493, 494, 495, 496, 497 and 498. S.493 deals with cohabitation caused by a man deceitfully inducing a belief of lawful marriage; S.494 deals with marrying again during the lifetime of the husband or wife; S.495 deals with marrying with concealment of former marriage from person with whom subsequent marriage is contracted; S.497 deals with adultery and S.498 deals with enticing or taking away or detaining with criminal intent a married woman.

ii) Besides, S.354 of Indian Penal Code deals with assault or criminal force to woman with intent to outrage her modesty, and S.375 deals with rape.

iii) A new chapter being Chapter XX-A was added in Indian Penal Code incorporating S.498A dealing with cruelty committed by husband or relatives of the husband of a woman by Criminal Law (Second Amendment) Act, 1983, and the said amendment however survived subsequent Repealing and Amendment Act, 1988. The offence was made cognizable if intimation relating to the commission of the offence is given to an Officer in Charge of a Police Station by the person related to her by blood, marriage or adoption, or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State in this behalf. Thus, for initiating investigation or for cognizance by a Court, the intervention by the aggrieved woman on her family members is needed. According to the First Schedule of Cr. P.C, S.498A is only cognizable if the person gives information relating to commission of offence to an officer in charge of the police station should be the person aggrieved by the offence or other persons related to her. Likewise, S.498-A IPC prohibits cognizance by a Court in a case u/S.498-A except on a police report or on complaint by aggrieved woman or other relations as stated therein.

iv) S.320 of Cr. P.C. deals with compounding of offences. The table appended to S.320(1) contains S.497 and 498 IPC compoundable by the husband of the woman, and S. 320(2) contain S.354 of IPC is compoundable by the woman assaulted, and S.494 has been made compoundable by the aggrieved party with permission of the Court.

v) The punishments which the Court can award in respect of the offences against woman, respectively are (i) offences u/S.494, imprisonment of either description for a term which may extend to 7 years and fine; (ii) Offences u/S.497, imprisonment of either description for a term which may extend to 5 years or with fine or with both; (iii) offences u/S.498, imprisonment of either description for a term which may extend to 2 years or with fine or with both; (iv) offences u/S.498A, with imprisonment for a term which may extend to 3 years or with fine; (v) offences u/S.354, with imprisonment of either description for a term which may extend to 2 years or with fine or with both.

vi) All the above sections relate to the offences committed against married woman, and save and except S.498-A, offences under other sections are compoundable and offences u/S.498-A still remains non-compoundable.

vii) Proceedings u/S.498-A of IPC are set in motion by the police and thereafter on the basis of the report of the Police by the Court, only on the complaint of the aggrieved party. It is pertinent to note that the aggrieved party has no power to compound the offence complained of either herself or with the permission of the Court, which is quite illogical, when it is the desire of all concerned that disputes between spouses should be settled by conciliation and if conciliation fails, then only proceed with other matter.

viii) It weighs high to make S.498-A of I.P.C. to make pari materia with the other provisions dealing with crimes against women.

It will be advisable to have a look at the observations made by the Hon'ble Supreme Court of India while dealing with an application under Article 32 of the Constitution of India, and reported in 2005 Cri. LJ. 3439.

"18. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Court have to take care of the situation within the existing frame work. As noted above, the object is to strike at the roots of dowry menace. But by misuse of the provisions a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin's weapon. If cry of "wolf” is made too often as a prank assistance and protection may not be available when the actual "wolf” appears......."

The desirability of making offences u/S.498 A of IPC compoundable u/S.320 Cr. P.C has been emphasized in a Division Bench decision of the Allahabad High Court reported in 1999 Cri. LJ. 685. The following observations have been made in that decision.

"Although this is beyond our scope in this reference to suggest to make offences in relation to marriage or married life compoundable, yet it would not be out of place to mention that in every provision of law relating to marriage, it has been provided that the Court shall first try to reconcile the dispute between the parties, i.e., husband and wife, parties to the marriage and if reconciliation is not possible then to proceed with the case. Reconciliation is nothing else but a compromise of compounding between the parties. The Family Courts Act, in which all the family disputes are covered, is specific example of this fact. This is with a view to maintain a matrimonial home than to break it and in view of these facts we can only suggest that the offences relating to marriages should be made compoundable."

Following the above observations, the Allahabad High Court suggested to the Law Commission to make offences under S.498-A of IPC compoundable u/S.320 of Cr. P.C. with permission of the Court, as reported in 2004 Cri. LJ. 2956.

As has been reported in (1996) 1 DMC 38 (39) it is the duty of the Court to make every endeavor to bring about a reconciliation between the parties in order to bring about stability of marriage and since offences u/S.498-A of IPC being non-compoundable the Courts cannot legislate and assume jurisdiction.

It has been reported in 1994 (2) ALPJ 60 (63), that where there was no evidence showing any friction in between the accused and his wife or accused and his in laws and everything was cordial and in fact accused was treating his wife and children with all affection and it was the wife who was pestering her father to give her money as she took prestige as her brother-in-law acquired houses and her husband could not acquire a house, and it was held that provisions of S.498-A of IPC would not be applicable.

In the dying declaration the victim had not breathed a word with regard to any torture or harassment by the accused persons on her and rather attributed the cause of death on her parents and conviction u/S.498-A of the accused persons set aside. (See 2004 Cri. LJ. 505)

Such situation reveals only at the end of the trial and until such time the husband and his relatives had to undergo all sorts of humiliations including custody.

To compat with the needs of the present era, it is necessary that the Legislature should protect both husband and wife from being ill-treated or oppressed by either spouse, instead of continuing with the provisions made at a time when the women were being really tortured, and for the said purpose either new legislation should be made or existing laws should be amended or altered to maintain social status. As stated herein, the husbands are being tortured by misuse of the provisions as contained in S.498-A of IPC, because no legal remedy is available for the husband in such circumstances and subjected to judicial custody as the offences under the said section being non-bailable and non-compoundable. Accordingly, it is necessary that S.498-A of IPC should be made bailable and also made compoundable u/S.320 of Cr. P.C. for the reasons stated herein. The Legislature should therefore, consider the following suggestions:-

i) Whether to repeal S.498-A of I.P.C. altogether;

ii) Whether to add a new section in I.P.C. to prevent misuse of S.498-A and to protect the husbands; and

iii) Whether to make offences u/S .498-A of I.P.C. bailable and compoundable. 

Jus Judicial Precedent

(By K.R. Jayakrishnan, Advocate)

The Order of the Hon. High Court of Kerala reported in 2005 (3) KLT10 has triggered off unintended hues and cries from certain corners as to the extent to which a High Court can mould the relief while exercising the jurisdiction under Article 226 of the Constitution of India. A dissent view to the said order expressed by some legal luminaries through the fourth estate made the point debatable. The following antecedents led to passing of the said order.

The Division Bench of the Hon. High Court had, by a common judgment, found that a Grama Panchayath was not justified in resorting to steps, whereby renewal of licence of a company was rejected before a scientific assessment was made. It had also been found that the Grama Panchayath has no legal authority to cancel the licence for functioning of the unit for any of the reasons pointed out by them from time to time. The Hon. Court had directed the Grama Panchayath to consider the application for renewal of the licence for the coming year or block of years on the condition that application as above is to be filed within two weeks from the date of the judgment and the company will have to apprise the Grama Panchayath that they possess licence under the Factories Act and clearance received from the Pollution Control Board.

Thereafter, an application for renewal of licence in the prescribed format along with the licence fee had been submitted before the Panchayath within the specified time. It was also informed therewith that the company has all the necessary current approval and licences under the Factories Act and Environmental laws. But, licence had not been renewed under the pretext that the application for renewal had not been submitted fulfilling the conditions specified by the High Court. Thenceforth, copies of the certificates and licences referred in the aforesaid common judgment had been produced before the Grama Panchayath along with a covering letter, thereby requested to take necessary steps to comply with the said order of the High Court. But, the Grama Panchayath had not acted thereon.

It is in these circumstances, that the company had filed an application under S.151 of the Code of Civil Procedure read with S.5 of the High Court Act with a prayer to issue a direction forthwith to the Grama Panchayath to renew the licence of the company. The Division Bench of the Hon. High Court, finding that the Grama Panchayath had trifled with the aforesaid common judgment, passed an order, the edictal part thereof reads as follows.

"In the light of the above, we direct the licensing authority of the first responded Panchayath (President of the Panchayath), as could be gatherable from the Kerala Panchayath Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 to renew the licence, as has been requested for by the petitioner, in the application referred to in the petition, for an appropriate duration, within one week from today. The panchayath will be entitled to demand the licence fee as might be payable in accordance with the Rules.

………………………………………………………………………………………

………………………………………………………………………………………

If a formal licence is not issued by the first respondent Panchayath within the time prescribed as above, it should be deemed that the petitioner possess such licence as renewed (emphasis given) and it will be within their rights to carry on the functioning of the company, effective from 10.06.2004 for a block of two years, subject of course to the restrictions that have already been laid down in the judgment.

The dissent views from various corners revolve around the highlighted portion hereinabove of the said order. The pivot of their view is that declaratory relief cannot be granted while exercising the writ jurisdiction under Article 226 of the Constitution. It has been also opinioned that it was desirable to issue further directions for proper implementation of previous directions. Another view is that since non-compliance with a writ/order issued under Article 226 constitutes contempt of court, initiation of contempt proceedings was appropriate. This is not an attempt to examine the legal abundance of the said views but, the legal sanctity of declaration under Article 226 of the Constitution.

Writs are-great safeguards for upholding the rights and liberties of people. Writ jurisdiction provides for quick and inexpensive remedy for the enforcement of such rights. Article 226(1) inverts all High Courts in India with the power to issue writs, which reads as follows:

"Article 226(1) - Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."

Thus, Article 226 of the Constitution empowers the High Court to issue to any person or authority, including the Government, within it's territorial jurisdiction, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of fundamental rights and for any other purpose. A discussion on the point in view of the spirit and intent of the letters in Article 226(1) naturally and inevitably arouses the following bunch of thoughts as to the amplitude of Article 226.

i. Can orders and writs under Article 226 travel beyond the contents of writs?

ii. Can the High Court mould the reliefs to meet the unusual requirement of a case?

iii. Can a declaratory relief be granted in a petition under Article 226 in view of the fact that such relief was not available in proceeding for a prerogative writ?

iv. Was it not proper to issue further directions for proper implementation of previous directions or initiate proceedings for contempt of court than a declaratory relief?

As observed by the Hon. Apex Court in (1965) 3 SCR 536, the founding fathers of the Constitution have designedly couched Article 226 in comprehensive phraseology to enable the High Court to reach injustice wherever it is found. The power under Article 226 is wide than that of prerogative writ under English Law and the High Court in exercise thereof is not fettered by the technicalities of English writ. The super added term "in the nature of" to the nomenclature of writ under English Law negates the restrictions in travelling beyond the contents of the writs. In AIR 1961 SC 1731, it was held that the power of High Court under Article 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc. as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz; for enforcement of fundamental rights as well as for other purposes. Further, the Hon. Apex Court has been making liberal use of the powers under Art.32(2) to achieve ends that could not be done in a proceeding for a prerogative writ under English Law. The expression used in Art.32(2) is on all fours with Art.226(1). Therefore, it is obviously open to the High Courts to follow the lines of the Supreme Court. Thus, it is demonstrably clear that orders and writs under Art.226 can travel beyond the contents of writs that are normally issued as writ of habeas corpus, mandamus, prohibition, quo warranto and certiorari.

It is a licit principle rather than lex that the High Court in exercise of it's jurisdiction under Art.226 will have to take cognizance of the entire facts and circumstances of the case in order to redress the grievance completely and substantially. This is in view of the fact that normal remedy is likely to be too dilatory or difficult to give reasonable quick relief. The extent of relief depends on diverse and variable factors such as the specific circumstances of the case, the nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him. Therefore, confining the relief under Art.226 only to the writ; under particular groupings would defeat the purpose of the Article itself. So much so, the High Court under Art.226 is at liberty and is expected to mould the relief if the situation warrant so for a complete and substantial redress of grievance. This was the view taken by the Hon. Apex Court in AIR 1976 SC 578, wherein it was held that the court can also mould the reliefs to meet the peculiar and complicated requirements of this country, provided in so doing, the High Court does not contravene any provision of the Constitution or the law declared by the Supreme Court in this behalf. The debate on this point can be very well concluded that the High Court can mould the reliefs so long as it does not contravene the provisions of the Constitution as well as the precedents declared by the Apex Court.

The prerogative writs had been originated in English law. Articles 32 and 226 of the Constitution comprises five prerogative writs from English law without throwing any light as to what do these writs in fact mean and what procedure should be followed in issuing such writs. As discussed hereinabove, the letters "in the nature of” confers on the High Court wide powers in the widest possible term, which do not allow any procedural technicalities to stand in the way of exercise of jurisdiction under Art. 226 for a complete and substantial redress of grievance. Thus, the letters of Art.226 avoid the technical considerations appear with the writs in English law. In short, the High Court under Article 226 is not fettered by the technicalities of English Writ and it's jurisdiction thereunder is not confined to the issue of prerogative writs. It has wide discretion in the matter of framing the writs to suit the exigencies of particular cases. Therefore, it is crystal clear that the jurisdiction of the High Court under Article 226 is restricted to the reliefs that were available in proceeding for prerogative writs.

The above discussion leads to an obvious culmination that it is not only the prerogative writs such as habeas corpus, mandamus, prohibition, quo warranto and certiorari that can be issued under Art.226 but also writs in the nature of prerogative writs. So much so, if the conditions for issue of any of the prerogative writs are not fulfilled, still High Court has the power to issue any direction, order or writ in the nature of prerogative writs. In other words, the powers of the High Court under Article 226 are wide enough to issue a declaratory order for providing proper relief to the aggrieved party. The Hon. Supreme Court in catena of cases held that in proper cases, declaratory reliefs may be granted in a petition under Article 226 even though such relief was not available in proceeding for a prerogative writ under English law. The dictum in AIR 1964 SC 1680 is that prima facie the jurisdiction of High Court under Article 226 to declare an order may not be denied. Thus, the inevitable culmination of the discussion on the point is that a declaratory relief can be granted in a petition under Article 226 albeit such relief was not available in proceeding for a prerogative writ. Still a question may arise, whether the High Court can make a declaration of the sort made in 2005 (3) KLT 10. The answer to this question is affirmative. The Hon. Apex Court held in AIR 1987 SC 537 that the court can, under Art.226, give directions, order to prevent injustice, as to how the authority should have exercised it's discretion, or may itself pass an order which such authority should have passed.

The High Court has been constituted as the protector and guarantor of fundamental rights and other legal rights by virtue of Article 226, which confers jurisdiction to provide quick and inexpensive remedy for the enforcement of the rights and liberties of people. The primary as well as the prime concern while invoking the said jurisdiction has to be to provide a complete and substantial redress of grievance. At the same time, the Court has also to be conscious as to certain aspects such as avoidance of multiplicity of proceedings, potential effect of orders, etc. Thus, a fortiori, the declaratory portion of the aforesaid order reported in 2005 (3) KLT 10 is apt and appropriate as far as the object of Article 226 is concerned, i.e., to redress the grievance of violation of fundamental rights and other rights completely and substantially.

Supreme Court on Appointment of Judges to Higher Judiciary: An Odyssey Through Time

(By Arun Krishna Dhan and Manu Varghese, The West Bengal National University of Juridical Sciences (WBNUJS), Kolkata)

"If primacy is to be accorded to the views of the Chief Justice of India (in the matter of appointment of Judges to Supreme Court), the views of the other consultees would become redundant and will at best serve the purpose of persuading the Chief Justice of India to change his views but if he does not the views of the other consultees will be rendered nugatory. Is this the constitutional intendment?"

Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268 (Ahmadi, J. Dissenting) (para. 309 at 378)

This paper critically analyses the judgment and opinion rendered by the Supreme Court in Supreme Court Advocates-On-Record Association v. Union of India, AIR 1994 SC 268 (the second Judges case) and In Re: Presidential Reference, AIR 1999 SC 1 (the third judges case) that have modified, and to a great extent of developed the concept of constitutional interpretation to a different, though not altogether unknown, plane. In the process, these decisions might have achieved the laudable objective of securing judicial independence but they came at the expense of not only the Constitution Bench decision in S.P. Gupta v. President of India, AIR 1982 SC 149 (the first Judges case) but also some of the express provisions of the Constitution. The sole purpose of this paper is to point out, with the great respect, certain discrepancies in the second judges case and the third judges case that appear to have failed to arrest the attention of the Hon’ble Court. All the three cases mentioned above deal with the appointment of Judges to the Supreme Court as well as the High Courts, but for the purpose of the present article, we shall limit our discussion to the appointment of Judges to the Supreme Court.

The Judges in the first judges case were unwilling to read anything more into the provisions of Art.124 – relating to appointment of Judges to the Supreme Court – than the plain and unambiguous terms of the article conveyed. Thus, it was unanimously agreed by a bench of seven learned Judges of the Supreme Court that ‘consultation’ does not mean ‘concurrence’ within the meaning of the term provided under Art.124(1) of the Constitution.

This construction of Art.124 devoid of inflated or artificial interpretation, bore a charmed life until it was overruled by the majority opinion in the second judges case. Arguing that the clear departure in the Constitutional scheme from the earlier pattern in Government of India Act, 1935 (wherein appointments were in the absolute discretion of the crown) is a sure indication that the Executive has no primacy in the appointment of judges, the majority judgment went on to interpret ‘consultation' as 'concurrence'. It was further added that consultation means ‘plurality of consultation' and therefore it is the Chief Justice of India (CJI) and a collegium of two senior-most puisne judges of the Supreme Court who have to start and conclude the consultative process. Such an issue of profound constitutional significance was concluded by stating that the opinion of the CJI has primacy in the matter of all appointments; and no appointment can be made by the President under Art.124 unless it is in conformity with the final opinion of the CJI, formed in the manner indicated.

The decision in the third judges case was a clarification to the second judges case, and on all material points it accorded with the second judges case. However, the third judges case enlarged the collegium to four senior-most puisne Judges of the Supreme Court. The decision further mandates that apart from, and independent of, the members of the collegium, the CJI should seek the opinion of the senior-most Judge of the Supreme Court who hails from the same High Court as of the person recommended. Thus, according to the decision in the third Judges case, the consultation with those judges of the Supreme Court conversant with the affairs of that High Court is a mandatory requirement in order to comply with the provisions of the Constitution.

Indeed, there is no doubting the fact that the noble and avowed objective of the Supreme Court in the second judges case and third judges case was to secure the independence of the judiciary. However, it is also true that in a legal system which is governed by the Constitution and the law, such as ours, the laudability of the object does not cure the legal fallacy. Perceived in this light, it is humbly submitted that the above two decisions of the Court suffer from the following discrepancies:

Firstly, reliance placed by the majority judgment in the second judges case on the departure of our constitutional scheme from the Government of India Act, 1935 is wholly misplaced. By virtue of Art.147 of the Constitution, the Government of India Act, 1935 applies to the interpretation of the Constitution. It is submitted that the dissenting opinion of Punchi J. in the second judges case correctly summarises the law on this point:

"Legislative history further tells us that prior to the Constitution and during the British Rule, no law warranted the executive to consult the Chief Justice of the Federal Court and/or that of the High Court for appointment of Judges in the aforesaid Courts. While framing the Constitution of India, suspicion in the Constituent Assembly was cast on both executive roles of the President and the CJI and hence the concept of plurality was introduced in the exercise at that level alone. Neither was to have a veto. In Arts.124 and 217, the word 'consultation' was preferred to 'concurrence'." [495]

Any interpretation contrary to this does not go down well with the other provisions of the Constitution. Art.127-which deals with appointment of ad hoc judges to the Supreme Court provides that the CJI with the previous consent of the President and after consultation with the Chief Justice of the High Court may request the attendance of a sitting judge of that High Court as an ad hoc judge of the Supreme Court. Even an attempt to point out that 'consultation' in this context is used in the ordinary meaning of the term (and not as 'concurrence', as the second judges case held) surely amounts to labouring the obvious. The established rules of statutory interpretation require that if a term is used in two different places (in this case. Art.124(1) and Art.127) under identical situations, then both should be read as having the same meaning. (Mohd. Shaft v. VII Additional Dist. & Sessions Judge, AIR 1977 SC 836, at 840; Also, G.P.Singh), Principles of Statutory Interpretation 286 (2001)). Therefore, whichever way one may look at it - logically, lexically, legally or semantically - it is difficult to reconcile to the conclusion that the term 'consultation' as used in Art.124(1) of the Constitution means 'concurrence'.

Secondly, it may be noted that Art.124(3)(c) provides that a person is qualified to be a judge of the Supreme Court, if he is, in the opinion of the President, a distinguished jurist. This provision merely provides the qualification needed to be the judge of a Supreme Court; the process of appointment is outlined in Art.124(1) which requires consultation with the CJI. Both the second Judges case and the third Judges case requires a ‘plurality of consultation’ with the CJI and his collegium, and in turn such recommendation is binding on the President. The third judges case goes on to mandate the consultation with the senior-most judge of the Supreme Court who is conversant with the affairs of that High Court (where the appointee is a sitting judge) as a constitutional requirement. Therefore, a reading of the opinion of the Court in the third judges case, stricto sensu, renders the power of the President under Art.124(3)(c) otiose, as no such consultative process is possible in the case of a distinguished jurist who is not a judge of any High Court.

The turnabout effected by the second Judges case that culminated in the third judges case, is undoubtedly a product of an activist judiciary that sought and found a constitutional remedy against an inglorious, and often pernicious, political system. It is interesting to note that the majority judgment in the second judges case found justification for the innovative reasoning of the Court in Isabella's plea to Angelo:

"O, it is excellent

To have a giant's strength, but it is tyrannous

To use it like a giant. " [Measure for Measure, Act V]

However, it may be equally interesting for the reader to recall the reminder of Isabella's plea, which justifies the necessity of a co-existence between judicial activism and judicial restraint:

"But man, proud man,

Dressed in a little brief authority,

Plays such fantastic tricks before high heaven

As makes the angels weep."

- Quoted in: Lord COOKE, WHERE ANGELS FEAR TO

TREAD in SUPREME BUT NOT INFALLIBLE 98 (B.N.Kirpal, et al ed. 2000)

Howsoever effective the Court's response was in asserting judicial independence, it remains to be seen whether such an expansive reading of the constitutional provisions is conducive to our theory of constitutional interpretation wherein the Supreme Court only purports to interpret the Constitution [Art.145(3) of the Constitution].

In searching for a conclusive answer to the constitutional dilemma posed by the second Judges case and the third Judges case, we may do well to remind ourselves of the dissent of Ahmedi, J. quoted in the opening paragraph of this article. In highlighting the prominence of such a dissenting opinion, we have not been oblivious of Justice Hugh Evans' penetrating observation:

"A dissent in a Court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the Court to have been betrayed."

- Quoted in: SIR HERSCH LAUTERPACHT, THE DEVELOPMENT OF

INTERNATIONAL LAW BY THE INTERNATIONAL COURT 66(1958)

Hindu Succession (Amendment) Act, 2005

v.

Joint Hindu Family System Abolition Act, 1975

(By K.R. Giri Iyer, Advocate, Ottapalam)

Act 39 of 2005 has come into force from 6th September, 2005 making drastic amendment to Hindu Succession Act 1956 (Act 30 of 1956) which is mainly intended to achieve gender equality in case of succession to properties.

So far as Kerala is concerned the impact of the present amendment has been already achieved by Joint Hindu Family System Act, 1975 (Act 30 of 1975) 30 years back.

The comparison of two Acts along with dialects and the impacts of the new amendment so far as Kerala is concerned is given below.

Sub-section (2) of S.4 of the Hindu Succession Act is omitted. Sub-section (2) reads "for the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings".

Omission of the above provision applies to Kerala. But so far as Kerala is concerned due to the absence of large extent of agricultural lands and lack of dependency of agricultural income neutralises the impact of the omission of sub-section.

Now the most important is regarding S.6. The original S.6 is substituted. Eventhough original S.6 saved coparcenary and survivorship to some extent the proviso made a rare occasion that is in the absence of a female relative specified in class 1 of the schedule or male relative specified in that class who claiming through such female relative". Actually the original S.6 was death blow to coparcency system. In Kerala by way of Abolition Act S.3 the death knell was almost complete. As per S.3 of Abolition Act birth in family not to give rise to rights in property i.e., right by birth was abolished.

But as per the substitution of S.6 of Succession Act (1) in a Joint Hindu family governed by the Mithakshara Law, the daughter of a coparcener shall - (a) by birth become a coparcener in her own right in the same manner as the son...........

Thus instead of abolition of coparcenary in toto partially just like the old Act, women are given right by birth in coparcenary property (ancestral property). It will go to a reinvention of coparcenary again to some extent. Survivorship again comes to play. The coparcenary property will be against governed by survivorship whereas the separate property by way of succession

There lies the charm of Abolition Act whereby there is total abolition of right by birth: men and women. But there is small disparity in Abolition Act. Those who are born before the abolition Act and after the Act. That is absent in the Succession Act.

But the proviso makes exception to the disposition alienations and testamentry dispositions in the Succession Act. But one disparity is the silence of succession on earlier death because succession opens on the death of persons eventhough by (3) says persons who die after!/ act is now governed by succession.

Here lies the importance of Abolition Act which by S.4 joint tenancy to be replaced I tenancy in common which makes a notional partition on that day thereby completely abolishes the coparcenary and Thavazhi which is the lacuna of the amended Succession Act.

Due to S.4 of the Act since there is no coparcenary or joint family after the Act in Kerala for considering the division S.6 of the amended Act will not be having any impact in Kerala. No right for women by birth in coparcenary property because no coparcenary property. There may be a difference in opinion on this point for which necessary debates will be necessary. The may be a contention that S.6 will apply so far as persons who are born before 1976 (Aboliti Act) and the fate of pending proceedings and properties where no partition has taken place etc. may be effected. Any way on other points the Amended Act has only prospective impact.

S.5 of the Abolition Act which has taken away the burden of pious obligation has been adopted by the second amendment as (4) to S.6 that also does not make any change in Kerala.

Now by deletion of S.23 of the Hindu Succession Act which originally barred female heirs from claiming partition of dwelling houses until the male members decide to separate has been taken away and the women can claim partition of dwelling houses also which will have a telling effect in Kerala also.

By deletion of S.24 the widow of certain class of heirs who were disqualified can now very well claim their share and they will be entitled to a share.

Class 1 of the Succession Act is also amended so as to incorporate to more persons through female line which is also a turning point.

To conclude amendment of Hindu Succession Act has wide impact vis a vis Joint Hindu Family Abolition Act which is yet to be decided by the decisions of various courts when occasion arises and at any rate. Women folk will definitely set some additional advantage which is the intention of legislature.