Published Articles of Hon'ble Mr. Justice V.R. Krishna Iyer, Judge of the Supreme Court of India,

Collected From Hindu -- Compiled by Dr. J. Jayanti, Civil Judge, Small Causes Court, Chennai

Foreword  by  Justice  K.T. Thomas,  Former  Judge  of  the  Supreme  Court  of  India

This compilation is bound to be excellent, because it consists of the essays authored by one of India’s most brilliant jurists Justice V.R. Krishna Iyer.  The only other exercise which could compete with the articles included in this compilation as for clarity and scholarship is the array of judgments penned by the same author as judge of the highest court in India.

Dr. J. Jayanti deserves praises for ferreting out one hundred  articles from the archives of the pristine media and collated them into one compendium and thereby transmuted to single encapsulation.  I claim the advantage that all those disquisitions were read by me as and when they were published first in “The Hindu”.

All the articles included in this single monograph had emanated from the intellectual acumen of the great Judge who transformed them into paraphrase style enriched by  his prodigious vocabulary.  The subjects dealt with in different articles were all of topical importance from time to time,  but  all of them focused on his matured thinking process.  I know it is a difficult task to rank which among them is the best,  because all of them, when evaluated could be understood as dealing with different topics of contemporary importance maintaining superb standard and diction.  Each article concerns an issue of national relevance, yet when all of them put together reflect the thirst of the author for reforms in different fields, with the undeviating theme of  social justice.

The craving in V.R. Krishna Iyer for reforms was formed on economic, judicial and police functions.  It is focused  in all his write-ups.  Whenever he wrote and whatever subjects he dealt with were not simple paraphrasing of the themes, but he advanced formidable reasons to drive the points home.  Objectivity was the hallmark of his writings as could be discerned from each article.  The thesis on “Judges and Judgments – correctional enclaves” dealt with judicial reforms. The essay on “Police Ethos and Human Rights” highlighted his unique vision on police reforms.  Among all the essays included in this compilation, I became particularly beholden to “Uniform Civil Code” which he wrote in two parts.  In my view those are testimonials to his quest for secularism embedded in his philosophy.  He said quite stridently about the need to bring all the personal laws into uniform jurisprudence for the entire nation.  The delay thus far in completing the endeavour contemplated in Article 44 of the Constitution received his remonstration in vociferous terms.  He reminds the nation of the obligation enshrined  in Article 37 of the Constitution that “it shall be the duty of the State to apply these principles in making laws.”  The exhortations of Dr. Ambedkar in the Constituent  Assembly have been appropriately extracted by Krishna Iyer in his articles on “Uniform Civil Code”  He used juristic whip since our republic cannot waste further time to have uniformity in laws as for all citizens in India irrespective of faith or race or custom or culture. It is a misfortune that in the Indian political scenario the votaries of uniform civil code are dubbed as communal jingoists while its opponents are caricatured as patrons of secularism.

I deem it a great privilege that I am chosen to write this foreword.  I may commend that the work done by Dr. J. Jayanti in selecting hundred  essays from a cluster of articles authored by the great  jurist in order to make them readily available to far wider readership.

Sections 107 & 108 – Rule of Artificial Certainty

(By B. Premnath, Advocate, High Court of Kerala, Ernakulam)

Sections 107 and 108 of the Indian Evidence Act, 1872 raise presumptions non pareil. When one advocates continuance of life, the other, death. Both the provisions are rules of evidence which point out how burden of proof should be discharged in a case where an issue arises as to whether a person is alive or dead. An artificial certainty is brought in to ‘declare’ a person alive, or dead. Those are praesumptio juris which are rebuttable. A presumption will be upheld until proof be made to the contrary: stabit praesumptio donec probetur in contrarium. When it is shown that a man was alive within thirty years, the burden to prove that he is dead, is on the person who affirms it; and if it is proved by him that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden shifts on to the person who affirms that he is alive. And if it is proved that he is alive, the presumption of death after seven years is rebutted; and if not, it stands.

The report of the select committee of the Council of the Governor-General of India for the purpose of making Law and Regulations to which the Indian Evidence Bill was referred, reveals that Sections 107 and Section 108 of the new bill are presumptions which have the effect of laying the burden of proof on particular persons, in particular cases. The report states that other presumptions are mere maxims by which the Courts ought to be guided in the interpretation of facts.

Where did the period of seven years required for raising the presumption of death first occur?1"The period of seven years was inserted in the old statute of Charles II concerning leases of lives, and it has since been adopted by analogy, in other cases. It is also recognized in the various acts relating to bigamy; and if, on an indictment for that crime it appears that the prisoner and his first wife had lived apart for seven years before he married again, mere proof that the wife was first alive at the time of the second ceremony will not warrant a conviction, but some affirmative evidence must be given that the prisoner has known his wife to be alive during the seven years. But although a person, who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death, and therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence and can neither rely on the one hand, upon the presumption of death, nor on the other, upon the presumption of the continuance of life. The burden of proving that the person was alive at any particular period within the seven years is upon the person asserting it”.

A reading of Section 108 may create a doubt whether the words  “provided that” in the beginning of section 108 gives it the colour of being a proviso to section 107.  The proposition that before a proviso to apply, the section itself must apply, admits no doubt. It is also settled that a proviso has to be interpreted so as to bring it within the purview of the section itself. In other words, a proviso cannot dwell in a different field than that of the section. Hon’ble Supreme Court in AIR 1975 SC 1758 held that “A proviso must be limited to the subject matter of an enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is the proviso. It is not a separate and independent enactment. ‘Words are dependant on the principal enacting words to which they are tacked as a proviso. They cannot be read and divorced from their context’(1912 AC 544)”. AIR 1966 SC 459 held: “There is no rule that the proviso must be restricted to the main enactment. Occasionally in a statute a proviso is unrelated to the subject matter of the preceding section or contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified there in and not as qualifying the main or preceding section.”  Craies on Statute Law postulates: “That it is the substance and not the form of a provision which has to be looked into to determine its nature”.

Originally, section 108 was without the words “provided that” in its beginning. It started with “when” and the word was “on,” instead of “shifted to” in the limb “the burden of proving that he is alive is shifted to the person who affirms it”. It was by the amendment Act 18 of 1872 that section 108 got its present shape. It cannot be said that while adding the words “provided to”, the legislative intent was to treat S.108 as a proviso to S.107. One has to read both the sections as a whole including its headings. Heading of a section play a vital role in determining its intent. Section 107 is about the burden of proving death of person known to have been alive within thirty years. Section 108 is about the burden of proving that person is alive who has not been heard of for seven years. Thus sections 107 and 108 operate in different fields.

An  analogy may  be drawn to  the effect of Section 27 of the  Evidence Act. Under Sections 25 and 26,  no confession made to a Police Officer whether in custody  or  not can be proved as against the accused. Section 27 permits so much of the information which is given by  persons  accused of an offence when in the custody of a police officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts  to  confession or not.  Section 27  in a way relaxes  the  prohibition  in  sections 25 and 26  and  it acts as a proviso to those sections.  It was held in AIR 1972 SC 3:  “But Section 27 is by way of a proviso to these sections and a statement even by way of confession, which distinctly relates to  the fact discovered is admissible as against the accused in the circumstances stated in Section 27”. Section 108 is not a proviso  to  section 107  as  Section 27  of  the  Evidence  Act  which  is  a  proviso  to  Sections  25 and 26.  Section 108 in   effect provides answer to  the question that how proof should be adduced to presume the death of a person.   It  can  be  seen  that  Section  107  stands  for  continuation  for  life.  When  Section 107  places  the  burden  of  proof  on  the  person  who  affirms  that  a man is dead, Section 108 simply shifts the burden back on the person who affirms that that man is alive.  AIR 1956 TC 129 reports the decision that where Section 108 applies, Section 107 has no application . Thus it can be seen that section 108 does not depend on section 107. Section 108 is a substantive, independent provision. In 2004 (2) KLT 351(SC) and AIR 1963 Mysore 115 the view expressed is that Section 108 is an exception to Section 107.

The High Court of Orissa in the decision reported in AIR 1967 Orissa 70 holds that the presumption of death under Section 108 tantamounts to physical death. But whether
Section 108 permits the Court to draw the presumption of the date of death of a person? The issue is dealt with in Re Phene Trusts’ (1870 (5) Ch.A.139) which has been followed by the Privy Council in AIR 1926 PC 9 and later by the Supreme Court and some of the High Courts till date. Privy Council held that there can be no presumption as to when a person has died and that, like any other fact, is a matter of proof. Their Lordships quoted the following passage from Re Phene Trusts’ : “If a person has not been heard of for seven years there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.” The Andhra Pradesh High Court in AIR 1970 A.P 246 (Ekbote J) has commented that “ I could not find these words in the body of the judgement reported in 1870 (5) Ch.A.139 and also as reported in 1869-1873 All ER 514. The quotation therefore seems to have  been taken from the Editor’s note which I have extracted above. The head note in turn seems to have been drafted, if I may say so with due respect to the Editor, without regard to what was really said by the Learned Lord in the judgement. The words first “within that period” and second “within the seven years” do not reflect the judgement correctly. The judgement on the other hand categorically lays down that “there is no presumption of law as to the particular period at which Nicholas Phene died”.  It is pointed out that the passage mentioned above as quoted by the Privy Council, was carried forward unknowingly in a plethora of judgements that followed. But ultimately it was the correct ratio of the decision of the Privy Council which was assimilated.

Following AIR 1926 PC 9, the decision reported in (1977) 1 SCC 791 quoted with approval the principle in Re Phene Trusts’  that “the precise time of death is not a matter of presumption”. In that case the contention was that one Kishan Singh not having been heard of for more than seven years since August 15, 1945, a presumption of the factum of his death has to be drawn at the expiration of seven years from that date in terms of Section 108. Court rejected the contention. 1995 Supp (1) SCC 27 followed suit.

It was held by the Supreme Court in the decision reported in 2004 (2) KLT 351(SC) that: “an occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not  raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise”. The Hon’ble Court held further: “We cannot , therefore countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard for a period of seven years by the wife or the family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings.” 

In AIR 2002 SC 606 Supreme Court held that even if a person was not heard more than seven years, the date of filing the suit could not be considered as the date of death of that person under Section 108. The decision reported in AIR 2005 SC 4407, referred to 2004 (2) KLT 351(SC) and held that, on the application of Section 108, it cannot be presumed that a person, whose death is in issue, had died seven years prior to the date of institution of the suit. The Full Bench of the High Court of Kerala in 1970 KLT 976 (F.B.) also held on the same lines: “There is nothing in the language of Section 108 for the view that if the date of death is not proved by any of the parties the early date on which death could be presumed is the date on which the suit was filed”. And it was further held: “The date of death has therefore to be proved as any other fact by the person on whom the burden lies to establish the said death. The exact time of death is not a matter of presumption”. The decisions reported in AIR 1957 Kerala 45, AIR 1957 AP 380, AIR 1963 Madras 385, AIR 1967 Orissa 70, AIR 1968 Rajasthan 48 and AIR 1956 TC 129 aired the same view. Hon’ble High Court of Madras, in AIR 1984 Madras 340 held that date of death cannot be presumed, but held that death can be presumed at the expiry of seven years, which is obviously wrong in view of (1977) 1 SCC 791.

Few decisions of the High Court of Kerala held that date of death of a person can be presumed under Section 108 and that ought to be the day when that person was reported to be missing! Unfortunately none of the binding judgments were brought to the attention of the Court. The decision reported in 2005 (3) KLT 1071 was a case where an Army man went missing from a particular date and the Court held: “As and when presumption of death is available under Section 108 of the Evidence Act, the whole position changes and the presumption of death supercedes the declaration of the person as a deserter under Section 106 of the Army Act. Consequently the family members can claim all benefits as if the man is dead on the date of his missing”. That decision was referred to in 2012 (3) KLT 152. It was a case where a wife claimed terminal benefits of her husband on the ground that in spite of enquiry, the whereabouts of her husband could not be ascertained. She also based her claim on a certificate by the Sub Inspector of Police in that regard. The Court held: “If an employee went missing, he was not heard of for seven years notwithstanding the disciplinary proceedings, the consequences of presumption under Section 108 of the Evidence Act would follow, meaning thereby that the legal heirs of the missing person should be given all benefits presuming that that person is dead and that the disciplinary proceedings were against a dead person”. It is not clear whether the Court presumed the date of death of that person as the date of his missing. But the said decision was confirmed by the Division Bench presuming the date of death of the missing person. The Division Bench Judgement was reported in 2013 (2) KLT 418: “True, there may be a specific provision for providing retiral benefits to the dependants/heirs of a man missing. However, after a person is not heard of for 7 years by those who naturally would have heard of him, then there is a presumption of civil death and that relates back to the date when he went missing”. The decision reported in  2004 (2) KLT 351(SC) may be referred, where it is held:-“The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it”.

It may be noted that the three decisions noted above and the un reported decisions referred there in in support of that proposition, militates against the binding precedents quoted here and are wrong. No way date of death could be presumed, that too from the date of missing. As already stated, Sections 107 & 108 only points out the burden of proof in case before a Court or an authority where an issue has arisen relating to the life and death of a missing person. Those provisions cannot be relied upon by the concerned authorities to grant pensionary/retirement benefits to the family members of a person missing for seven years unless of course there are provsions in the concerned law in that regard. Incidentally, it may be noted that section 34 of the Specific Relief Act, 1963 enables a party to file suits for declaration but a suit will not lie to declare that a person is dead.

In the case reported in AIR 1989 Madras 248 the issue decided was whether the cancellation by the Sub Collector of a certificate of widowhood obtained from the Tahsildar by a wife by fraudulently invoking Section 108 knowing fully well that her husband was alive, is valid or not. After holding the order of cancellation was valid, the Court observed thus: “In any event she could not have invoked the provisions of Section 108 Evidence Act. That section is only a rule of procedure to be followed when the question arises before a Court whether a person is  alive or dead. No person can make use of the presumption under the section and request the Registrar of Births and Deaths to make an entry in the register that the person concerned is dead. Under the provisions of the Registration of Births and Deaths Act, 1969, only actual deaths can be registered and the informant should give the date and cause of death besides other particulars. Similarly the Revenue officials cannot issue certificates of death or widowhood based on presumptions”.

In view of these binding precedents which hold that date of death of a missing person cannot be presumed under Section 108 of the Evidence Act, the decisions reported in  2005 (3) KLT 1071,  2012 (3) KLT 152 and  2013 (2) KLT 418 are per incuriam and not good law.

Where a custom in a particular community which presumes death of a missing person within a period lesser than Section 108, whether death could be presumed? The decision reported in AIR 1987 P.&H. 37 was a case where a custom in a particular community permits presumption of death with 2 or 3 years of a missing person. The Court held thus: “The period seven years laid down in Section 108 with regard to the whereabouts of a person are not known cannot be whittled down and reduced to 2 -3 years under any Custom. The Evidence Act over rides the earlier rules of evidence which are not contained in any statute, act or regulations. The rules of evidence under the Hindu or Mohemmadan law or which had origin in custom or where based on principles of equity, justice and good conscience and have no validity when they are in derogation to are in clear departure from the provisions of Evidence Act”.

In the decision reported in 1988 (1) KLT 45 a question was raised: “Whether presumption of death can be drawn under Section 114 of the Evidence Act even before the expiry of 7 years  mentioned in Section 108?” The Court held in the affirmative. It may be perceived that Section 114 is a general presumption. Sections 107 and 108 raise a particular presumption, which derives its force from law, while Section 114 derives its force from logic. Section 107 and 108 belongs to the second class of presumption under section 4 of the Evidence Act where Court “shall presume” in the absence of proof to the contrary. Therefore  presumptions which sections 107 and 108 raise are not conclusive presumptions, where opposing evidence is forbidden. While presumptions under sections 107 and 108 are fixed rules of law, the presumptions that can be drawn under section 114 are derived wholly and directly from the circumstances of the particular cases, by means of the common experience of man. That legislative intention is clear from the report of the select committee of the Council of the Governor-General of India which moulded the Indian Evidence Act, 1872  where in it is stated in that in order to distinguish between a presumption of law and presumption of facts that Section 114 was enacted, putting all such presumptions in the position of mere presumptions of fact with which the Court can deal at its discretion and can attach any value. 2"A presumption of law is an inference which in the absence of direct evidence on the subject, the law requires to be drawn from the existence of certain established facts, i.e., a presumption which the law compels, and which may be conclusive or rebuttable; a rule of law announcing a definite probative weight attached by jurisprudence to a proposition of logic. It is an assumption made by the law that a strong inference of fact is prima facie  correct, and will, therefore, sustain the burden of evidence, until conflicting facts on the point are shown”. The following passage also may be taken note of, which throws light on the nature of presumption under Section 108: 3"A presumption of law applies to a class, the conditions of which are fixed and uniform; a presumpton of fact applies to individual cases which are inconsistent and fluctuating. Thus the presumption of death arises whenever seven years’ unexplained absence is proved; but when it is necessary to establish the death at any precise period within the seven years the question must be decided on the evidence adduced in each specific case”. Itcould be said that Section 114 has application to the latter part.

It is profitable to read a Division bench decision of the Madras High Court reported in AIR 1932 Madras 343 where the distinction between a presumption of law and presumption of fact were laid down, while holding that there cannot be such thing as presumption of fact, in the following words:

“Presumptions of law are true presumptions, presumptions, some time rebuttable, some time irrebuttable which courts are bound by statute and some times by other binding authority to set up, positions which they are bound to take up before hand, a priori , before they ever consider the evidence in the case or the part of the case to which the presumptions apply. Those presumptions are correctly called presumptions, positions which we must take up before hand. I think it is a little unfortunate that in our legal phraseology we also use the word ‘presumptions’ in what are spoken of as presumptions of fact. Presumptions of fact are not necessarly taken up at the beginning of the consideration of a case or of any particular part of it. They are really assumptions of fact which we may make any stage of a case. They are assumptions of fact for which we do not ask any proof. Every hour of our life we are making such assumptions of fact in the course of our reasoning on all sorts of questions; we make them from our childhood to our death. Life would not be long enough for the ordinary affairs of business if we did not make such assumptions. Simple questions of fact which a Judge has to decide without the aid of such assumptions would take him months or years to dispose of. These presumptions or assumptions in a very large number of cases we make unconsciously or sub- consciously by an elliptical form of reasoning. But they are always assumptions or inferences of fact, based upon our ideas and experience of the course of nature the course of human business and the course of human conduct. They are the assumptions and unconscious inferences of a reasonable man. There is no special magic about such presumptions or assumptions of fact as they are used in Courts of law; and that makes it to my mind rather surprising that questions about such presumptions have on occasions been referred to Full Benches for statements of general opinion about them. And no Full Bench, however numerous, however distinguished can lay down by ruling that Courts shall make certain inferences or assumptions of fact in future cases.”   

The decision reported in AIR 1963 Mys 115 put the difference between Sections 108 and 114 in this manner: “If presumptions arising under Section 114 which is a general section come into conflict with presumptions arising from provisions which can be called special provisions then presumptions arising under the general provisions must yield place to the presumptions arising under the special provisions”. It may be noted that the said decision mooted deleting of Section 107 as it would be detriment to the heirs of the deceased, the situation being death in unknown places and under unidentifiable circumstances is a matter of everyday occurence. In the light of the above and in view of the long line of binding precedents which holds that death cannot be presumed in any shorter period than seven years and for the reasons stated above, the decision reported in 1988 (1) KLT 45, which holds otherwise, has not laid down the correct law on the issue. 

When an younger and older person died in the same incident, whether it could be presumed that the older person died first? Section 184 of the Law of Property Act, 1925 in England, is in the following lines: “In all cases where, after the commencement of this Act, two or  more persons have died in circumstances rendering uncertain which of them survived the other or others, such deaths shall(subject to any order of the Court), for all purposes affecting the title to the property, be presumed to have occured in the order of seniority, and accordingly the younger shall  be deemed to have survived the elder”. It was held in 4 Right v. Netherwood  that “with subject to the priority, it has always appeared to me more fair and reasonable in these unhappy cases to consider all the parties as dying at the same instant of time, than to resort to any fanciful supposition of survivorship on account of the degrees of robustness”.  The House of Lords in 5 Wing v. Angrave held: “It cannot be assumed to be proved or probable or possible that two human beings should cease to breath at the same moment of time, for that is hardly within the range of imagination, and to adjudicate on such a principle, would, I think, be to proceed on false data.”

In India, in the decision reported in AIR 1922 Bombay 347 it was held: “ I think, we are entitled to say that the probabilities are in favour of the younger man surviving the elder”, which was followed in 18 IC 814.  Regarding the presumption of survivorship based on age, sex, health etc., AIR 1944 Calcutta 132 holds that “it is no less be no more than a purely artificial rule, and therefore, only an equally conjectural basis for ascertaining the truth. On these grounds, it would certainly be better to treat the question as one of fact to be disposed of on the evidence. If the evidence is sufficient to support a finding of survivorship, well and good, but where evidence establishes a prefect equipoise, the determining factor should be the rule regarding the burden of proof”. It is submitted that this view is more balanced and plausible to be applied as the answer to the question posed above.

In spite of the compulsory certainty of death infused by the rule of law, things could turn topsy turvy at times. The facts in the decision reported in 2014(3) MLJ 24 are that a lady was appointed on compassionate grounds by the Railways considering that her husband (who was arrayed as 3rd respondent in the case) was missing more than seven years and after applying Sections 107 and 108 of the Evidence Act. She was paid the terminal benefits such as gratuity, leave salary on the presumption of death of her husband. Now the turn of events: Her husband, who was presumed to be dead, sent in a representation on 8.1.2011 to the Railways, requesting for restoring him in service. Show cause notice was issued to his wife (widow?), and she was ultimately terminated from her job based on RBE No.164/98 dated 26.7.98 where powers are given to terminate the job if the missing employee resurfaces. The tribunal directed the Railways to reinstate her. It was challenged before the High Court. The Court directed to treat the husband to have compulsorily retired with the entitlement of pension and the lady was ordered to be issued with fresh appointment order with no counting of her seniority in the post.

Haunting uncertainties of life and death. But the lis must end.

Foot Note:

1. Taylor on the English Law of Evidence, Section 200

2  Corpus Juris Secundum

3  Phipsons Law of Evidence

4  (1815) 161 E.R. 1137

5  (1860) 8 H.L.C. 183

New  Vistas  Opened  up  for  Enforcement  of  Foreign  Arbitration  Awards

(By T.R. Aswas, Advocate,  High Court of Kerala)

With the judgment in ((2004) 2 SCC 105)Bhatia International v. Bulk Trading SA, the Indian Supreme Court held that Part I of the Act applied even to arbitrations seated outside of India, unless the parties had expressly or impliedly agreed to exclude Part I of the Act. Thereafter in (2008 (3) KLT Suppl. 1200 (SC) = (2008) 4 SCC 190)Venture Global v. Satyam Computers, the Supreme Court set aside the Arbitration Award made in London, under Section 34 of the Act. Foreign arbitrations, already regulated by the courts of the seat of arbitration, were thus exposed to intervention by Indian courts, which branded India as an arbitration unfriendly jurisdiction. Bhatia and Venture was later doubted on 16.01.2008 by a Division Bench of the Indian Supreme Court. Pursuant to the aforesaid order, the appeal was placed for hearing before a three Judge Bench, which by its order dated 1st November, 2011 directed the matters to be placed before the Constitution Bench on 10th January, 2012.

In April 2010, the Ministry of Law and Justice, with the objective of emphasizing the ‘minimum judicial intervention’ standard, had suggested an amendment to cure the lacuna created since the decision in Bhatia International.

The Constitutional Bench started its hearing in BALCO case on 10.1.2012 and on 6.9.2012 after laudable consideration of jurisprudence laid down by various Indian & foreign judgments and writings of renowned international commercial arbitration authors, ruled that findings by the Court in its judgment in Bhatia and Venture Global were incorrect in ((2012) 9 SCC 552). It concluded that Part I of the Arbitration and Conciliation Act, 1996 had no application to arbitrations which were seated outside India, irrespective of the fact whether parties chose to apply the Act or not, thus getting Indian law in line, with the well settled principle recognized internationally that “the seat of arbitration is intended to be its centre of gravity”.

The delay is obvious and this exactly was one of the reason for the Australian corporate-White Industries to invoke the (BIT) Bilateral Investment Treaty arbitration under UNCITRAL in July 2010 against the Republic of India, due to protracted delays in the Indian judiciary which kept an ICC Award dated 27.5.2002 against Coal India of around Aus. $ 4 million in the limbo for almost nine years in the Indian Courts, in enforcement and section 34 proceedings. The BIT Award against Indian Government, which is the first of its kind, was passed on 30.11.2011 wherein the Tribunal found India guilty of violating the India-Australia BIT because the Indian judicial system has been unable to deal with White Industries’ jurisdictional claim in over nine years. The tribunal held that the delay by Indian courts violated India’s obligation to provide White Industries with an "effective means of asserting claims and enforcing rights.”

However, the international community welcomed BALCO judgment because it restricts the ability of the Indian courts to intervene in offshore arbitrations, and restores Indian arbitration to the position enjoyed ten years ago. Post BALCO, by a spate of judgments the Indian Supreme Court has made it explicitly clear that Indian Courts will not interfere with foreign Awards and are willing to enforce such Awards in accordance with UNCITRAL Mode Law and New York Convention per judgments in Yograj Infrastructure, Srilal Mahal, Sakuma Exports, Enercon, World Sport Group, Reliance Industries etc.

Be that as it may, the enforcement proceedings relating to Foreign Awards in India which is governed under Part II of The Arbitration & Conciliation Act, 1996 still has long way to go through the Indian Courts. The kind of conventional defenses available in Indian Courts many a time makes the whole exercise a mockery. Borrowing the words of former GI, Arbitration matters dumped along with Civil matters needs to be rescued.

It is in these circumstances, by the latest Judgment dated 2nd October 2014 in Cruz City 1Mauritius Holdings v. Unitech Limited, the English Court has thwarted attempts to avoid enforcement and appointed Receiver by way of equitable execution over foreign assets to assist enforcement of a London-Award under Section 37 of the Senior Courts Act, 1981. The LCIA-London Award in the case was against an Indian Company, Isle of Man Company and two Cyprus companies. The Indian Company inter alia resisted the application stating that already Cruz City has moved the Delhi High Court for execution of the LCIA-Award and for appointment of Receiver over its assets, payment of the Award would infringe RBI/Indian exchange control regulations, and the Indian Court is unlikely to recognize appointment of Receiver by the English Court.

The English Court while considering the pleas has opined that “it appears that a first instance decision on the enforcement of a foreign award can take at least 2-3 years in India, while an appeal could take in excess of a further 4-5 years to be decided; the evidence is that until a decision on enforcement is made, there is no possibility of appointment of a Receiver by the Indian court”, and allowed application for appointment of Receiver.

The delay in the Indian judicial system here again seems to have persuaded the English Court to however finally allow the application for appointment of Receivers and now we need to wait and see how the Indian Courts honours the said English Judgment.

Justice V.R. Krishna Iyer,  the  Paragon  and  the  Polymath

(By V.K. Babu Prakash, Judge, Motor Accidents Claims Tribunal, Thalassery)

Justice V.R. Krishna Iyer has became a centurion, if his life is taken as a game of play, as he turns into hundred in his age. On his 100th birthday, it is apposite to write few words about his life and its ways to remind ourselves about his rich contributions and alert presence to safeguard the society from evil avalanches. It gives me shudder to write about the living legend V.R. Krishna Iyer. Such is the life and personality of that unique human being fighting, never retreating nor relenting for the people whose rights are dear to him than his personal accolades. What an energy and tremendous commitment he ensues to the cause which he espouses? To explain his mind and soul, it is best to chant the words of Saint Francis of Assisi, which Justice Iyer always likes to quote,

“Lord, make me an instrument of your peace

Where there is hatred, let me sow love

Where there is injury, pardon,

Where there is despair, hope,

Where there is darkness, light,

And where there is sadness, joy”.

Justice V.R. Krishna Iyer was born on 15.11.1915 to Rama Ayyar and Narayani Ammal at Vaidyanathapuram, a rural corner of Palghat, a small town in Malabar those days. Justice Iyer’s father Rama Ayyar began his career as a teacher for a short while in Haripad. Later, he qualified himself as a pleader. He set up practice as a lawyer in Quilandy in 1913 since his uncle was a pleader in the Munsiff Court there. Rama Ayyar was able to make his mark in the profession right form the beginning. In the years followed, Rama Ayyar became the leading civil lawyer of Quilandy and other Malabar precincts. Rama Ayyar had seven children, the first of whom was Venkiteswaran, while the second was Krishnan our Krishna Iyer the legend. He was followed by Ranganayaki, Vijayalakshmi, Meenakshi, Ramachandran and Lakshminarayanan.

Justice Iyer’s elder brother Venkiteswaran was always the topper in his class. But fate, in the form of cruel death sometimes plays its ugly game in the family, thereby shatters its thin fabric of happiness. Venkiteswaran died at the prime age of 24 years in the form of cancer. He was a mathematical prodigy and besides an enriching carnatic musician.

Justice Iyer’s sister Dr. Meenakshi was an outstanding scientist in the field of marine biology. She worked in India and America. She and Sarada Krishna Iyer learnt Sanskrit and Russian together. Dr. Meenakshi too died of cancer. Justice Iyer’s younger brother Lakshminarayanan took I.P.S. and became the D.G.P. of Madras and retired in 1986.

Justice Iyer was a bright student in his young days. He excelled in English and Mathematics. As Justice Iyer’s father was a busy lawyer, he grew up in the tutelage of his grandfather Venkateswara Iyer, a matriculate school master. But he was a brilliant scholar in English and Mathematics. He taught Justice Iyer in the intricacies of English grammar with sagacity and made him to chime and chant idioms and phrases even in dreams. It enriched his language skill which later became the famous justice Iyer diction which nobody can imitate.

Justice Iyer graduated from the Annamali University. He took his law from Madras Law College and called to the Bar in 1938. Obviously with his gift of the gab, no wonder, he became the leader of Tellichery Bar. He defended local Communist leaders who were prosecuted for murder and rioting cases. Eventually, he was attracted to Communism and its Philosophy.

While the bar practice of Justice Iyer was reaching its zenith, his marriage took place with Sarada an accomplished carnatic classic singer, a wonderful Veena player, a talented personality of many a facet.  He became the M.L.A. and Minister in the first Communist Cabinet of EMS in Kerala. Later, Justice M.S. Menon, the Chief Justice, High Court of Kerala wanted Justice Iyer to become the judge of the High Court of Kerala who recommended his name. Krishna Iyer was elevated from the Bar to the bench of Kerala High Court on 2.7.1968. Before that, while he was a junior, he had applied for the post of Munsiff on the advice of his father.

Mr. Sundaram, District Judge who was on the interview board realizing that Krishna Iyer could become an eminent lawyer advised Krishna Iyer to come later, since he was too young for judicial office. Had justice Iyer been appointed Munsiff he would have at the most retired as a District Judge, confined to some remote corner.

In 1971, Justice Iyer joined the Law Commission as a member. Then, elevating him to the Supreme Court came on the anvil. Though the Central Government was agreeable to the proposal, it did not materialize, as the Communist tag turned against him. Had he been elevated then, he would have become the Chief Justice of India. However, in July 1973, Justice Krishna Iyer and Justice P.N. Bhagavathy were sworn in as Supreme Court Judges. This illustrious pair worked on tandem on the principles of progressive jurisprudence and epistolary jurisdiction which opened the mighty gate of Supreme Court before common man who became awe stuck that justice is an affordable commodity to him as well. The rest is history. That living legend is still amongst us sometimes roaring, at times weeping and most of the times fighting, though has become fragile in health and age. His philosophy can be summarized in the beautiful words of Wordsworth, yet another dearest poet of Justice Iyer.

“The world is too much with us, late and soon. Getting and spending we lay waste our powers. Little use see in Nature that is ours”.

Road to an Awakening Judiciary - IV

(By Dr.K.B.Mohamedkutty, Senior Advocate and Former Law Faculty Dean)

Musicians thrill our souls; philosophers help us exercise our minds; the judges enhance the unit of justice during their tenure without rest. Hon’ble Mr. H.L Dattu, the Chief Justice of India, looking back his sojourn as the Chief Justice of the State of Kerala has remarked that judges of the Kerala High Court were hardworking and diligent. It is indeed a heritage of the past which is being continued. According to him a judge needs long hours of preparation and his work usually extends to sixteen hours. Without any slip of exaggeration, we can say that judges belong to a rare category who does work even when they sleep as some solutions are moulded in sleep without their knowledge. Lawyers who argued cases before the Chief Justice while he was in the Kerala High Court entertained a happy feeling that no case was lost or won in his court till the last word was spoken, though he might have expressed tentative views. The argument before His Lordship often attained the status of a “Grand Debate”. No doubt, judicial temperament plays a great role in maintaining an ideal court.

However, “Who is working without rest” is a perennial question answered differently. Vennikkulam, in his poetic diction brings to focus many a claimant. The sea proclaims in loud voice: “I am working without rest.” “No, it is me,” said the sea breeze. But the “Time” stressed that ever since the beginning of the Universe, time has unbroken existence and watchfulness as it is the present, the past and the future. But a village boy, negating such claims, asserted in low voice that the one who works incessantly is his “Mother.”

The lay public knows from their experience for more than half a century that the judiciary too is at work without rest. However, Parkinson’s Law is at work in the judiciary as work expands though personnel to do the same increase. However, proliferation of litigation is the chief reason. Necessarily, every judge needs to be a “demon of work”. Vaikom Mohamed Basheer, the renowned novelist, observed in his humourous style that by writing depositions of witnesses the fingers of Magistrate’s right hand were broken and the successor Magistrate found it impossible to read out what was written by his predecessor.

Great writers have said that hard work has its own compensations; it liberates you from hatred, malice and envy, because you have no time to stand and stare at such things. Owen Felltham (1602-1668) reminds those who are idle that though we do nothing , time keeps its constant pace and flies as fast as in idleness and in employment. According to him, “whether we play or labour or sleep, the sun passeth. But the difference which follows upon good actions is infinite from that of ill ones.” Those who studied the habits of human mind say that when a person desires to secure complete dedication in a particular work, it swallows all other works; he works risking enjoyment and sometimes peaceable existence. But it is lamentable that the role of judiciary is seldom recognised. It is just like, as Ben Jonson quipped: “We owe no thanks to rivers though they are immensely useful to mankind giving water to drink, breeze to refresh and facility for navigation. We don’t give thanks to cow for giving us milk or trees for giving us fruit and shade”.

A Rising Star

Today the credibility of the Court is rising rapidly. Unfortunately, the political wing of the State degenerated from top to bottom. Consequent on the fall of political power at the highest level, the Supreme Court became a centre of political power gradually availing of this opportunity to expand its area of adjudication to every conceivable aspect of administration. It has become the most powerful court in existence in the world of democracy.

The people are now increasingly court-watchers, as well as political-watchers. The power and prestige of the judiciary are nothing but people’s power and it has the mandate to speak for the people. The people trust the judiciary immensely even without any process of electing them in a parliamentary process. The High Court in each State and thousands of lower courts through out India work like a nervous system drawing sustenance from the Constitution and the laws. The inflow of large number of cases to the court reaffirms faith of the people in the judiciary. The judiciary has become the right eye and the left eye of the nation. Today the people consider court as a safety-valve against violence in different forms. The people expect judiciary to weave fine fabric of law and justice taking into account the tradition and habit of the society, the turmoil of thecurrent legal problems and sometimes even the unborn future.

Sustainable Growth of Democracy

The view that the popular election of representative Government gives sustenance to democracy is correct, but if justice system foils even slightly democracy fails. As Beethoven made music human, every step in justice delivery must have a human touch. The experience in countries like Latin America would show that political process devoid of justice system through established legal apparatus, may lead to disharmony and chaos.

The Legislative Assemblies in the States and the Parliament are not in continuous function, but the judicial apparatus is in continuous operation. This is necessary, because the Executive has an inherent tendency to do things which may harm the people and abstain from doing what is good for them. It is certain that but for the judiciary, the Executive and the Legislature would have been despotic. The people approach the court to seek rescue from unlawful deeds and to advance public law needs. This is helpful to avert violent turn in social life. The court must also follow the advice of Justice Jerome Frank that people must be acquainted with the truth about the working of the judiciary. All powers of Judiciary are no more than a “puff of wind.” viz-a-viz people’s power. It is this realization that led to the declaration of Justice Jackson of the U.S. Supreme Court that “we are not final because we are infallible. We are infallible because we are final.”

Activist Role Not Later Development

There are times when judiciary takes the role of an activist. Judicial activism is not a new development. Chief Justice Coke of England was removed from the office because of his judicial activism. King James-I disliked his verdicts. So the King himself entered the Royal Court and assumed jurisdiction. The King was omnipotent in those days. And yet Coke was bold enough to declare before the King that cases ought to be determined by court according to law and not by the whims of the King. For this Coke was charged with the offence of treason, but he bluntly told the King the limit of King’s power. He said in polite language that the King should not be under man, but should be under God and the Law. Historians consider this incident in 1608 as the first judicial activism.

Two hundred years later Coke’s declaration re-echoed in the U.S.A. Chief Justice Marshall of the Supreme Court invalidated a congressional statute in Mulberry v. Madison. His judgment nullified an order of the outgoing President, which was detested by his opponents who supported new government. Naturally, the new government welcomed the decision of the Court as it served their interest, but without knowing the power of judicial review packed in it. The judgment cleared the way of judicial review in later years. Chief Justice Earl Warren’s Court in the U.S.A. declared removal of racial discrimination in the U.S. schools which was an activist step in the history of the U.S.A. In India the Supreme Court by exercising its activist role enhanced the scope of Article 21 and other Fundamental Rights so as to take within its ambit the whole gamut of social rights, right to environment, right to food, police reforms, emancipation of women, scourge of black money , recognition of third gender etc.

Court of Peoples' Conscience

TheJudiciary is not elected body. It is said that people do not get chance to weigh their performance or merit from time to time. However, judiciary is not endowed with any policy formulation or its implementation. When government of a political party in power does not make necessary laws, or passes bad laws or pursues bad policies the party is accountable to the people. No judge is allowed to go free without scrutiny if his judgment goes wrong. He is subjected to vigilant gaze of the Bar and fair criticism and comments by the public. Judgments are appealed against. Liberty of thought and freedom of expression work as great social force against arbitrary ways. When the spirit of thought and expression dies in the heart of the people, all human institutions including judiciary suffer set back. As Gandhiji said there is a higher court of justice and that is the Court of People’s Conscience. No judiciary can afford to neglect it. The people gave such power to the judiciary knowing fully well that the Executive manned by politicians might make laws leading to mock democracy. The balance of power is kept within bound under the Constitution. The judicial function must aim at building up a bridge to the future over the stormy waves of social and political issues of the present. The judiciary should not be a prey to insensitivity when freedom of the people is in danger as had happened during the Emergency and in the Bhopal Gas Tragedy Case. Freedom is on the opposite side of fear; one attains it when fear is out of the mind leading to unrestricted enjoyment of natural life. The desire of the people of India that Rule of Law should be preserved even against persons in high political positions is being fulfilled through some recent judgments. It is indeed the mark of an Awakening Judiciary.