Animal Rights and Compassion for other Living Beings:
Growing Dimensions of Right-to-life Concept under the Constitution

(By P. Leelakrishnan, Emeritus Fellow, Cochin University of Science and Technology)

THE DEFINITION of environment1 in the Environment (Protection) Act, 1986 looks at man and other living creatures as equal partners in the life on earth. This wider perspective of environment has received a constitutional projection in the recent judgment of the Supreme Court inAnimal Welfare Board of Indiav A. Nagaraja.2

The 42nd constitution amendment came into force on 3rd January 1977. Introducing principles of environment for good government3 and fundamental duties4 to protect and improve the environment, the amendment is a remarkable milestone in the constitutional history of India. Security of all living creatures is undoubtedly part of the duty to protect and improve the natural environment. “Compassion” to living creatures and development of “humanism” are specific Fundamental duties. Do these constitutional innovations in the directive principles and fundamental rights amount to creation and vesting of corresponding rights in animals?

Animal Welfare Boardv. Nagaraja addresses this wider question. Since environment includes all forms of life, disturbance to the basic environment posing threat to any form of life should fall within the scope of Article 21 of the Constitution. “Life” means more than mere survival or existence. It embraces within its fold the right to dignity and fair treatment. This extensive meaning of the concept of life should not be limited to human beings. It should in all fairness be extended to other forms of life. Basing its decision in Nagaraja on such an environmentally informed constitutional interpretation the court said,  “Right to dignity and fair treatment is, therefore, not confined to human beings alone, but to animals as well…. Animals have also a right against the human beings not to be tortured and against infliction of unnecessary pain or suffering.” 5

Reflections on compassion

Compassion to living creatures denotes that cruelty to any living creatures must be curbed. In the past the apex court looked at the concept from different angles. Way back in 1958 years before the 42nd amendment, in Mohd. Hanif Quareshi v. State of Bihar 6 the Supreme Court did not advert to the question of compassion when it took a stand against total prohibition of cow slaughter, saying that prohibition of slaughter took away the livelihood of the butchers. About thirty years after the 42nd amendment, inState of Gujarat v. Mirzapur Moti Kureshi Kessab Jamat 7 the court struck a different note where an animal preservation law was found valid. The majority noted that cattle were entitled to compassion in their old age even when they ceased to be milch or draught and that the bulls beyond the age of 16 are still useful as their excreta, hides and skins could produce biogas.8 The dissenting Judge did not accept this position. He seemed to have applied the proportionality principle and pointed out that the public benefits of the ban are very small in comparison with the denial of occupational rights of the butchers and that augmentation of the alternative energy source of bio-gas from hides and skins becomes unimportant as its use is considerably reduced for LPG gas.9 InAkhil Bharat Goseva Sangh(3) v State of A.P.10 the court took entirely different stance from Mirzapur and Quereshi. The courtconsidered heavy foreign exchange earnings from large slaughter houses as important when it supported slaughter of bovine animals in a massive scale. In Milkmen Colony Vikas Samathi v. State of Rajasthan11 the apex court had a humanistic attitude when it endorsed a direction to remove wandering cattle away from the city as they were found to be roaming in public places including the corridors of the High Court.

Concern of the judiciary

Compassion to animals did not strike to be a grave and solemn theme in the above mentioned cases probably because killing of animals for food without unnecessary pain or suffering is not forbidden under the Prevention of Cruelty to Animals Act, 1960 (PCA Act).12 The concept of compassion drew more intense attention and concern intheNagaraja case13 where the validity of jallikattu in Tamil Naduand bullock-cart races in Maharashtra were under challenge.

Can the practices of sheer torturing of bulls be allowed as sporting events and be justified in view of their historic, cultural and religious background? Started as a sporting event in the past in Tamil Nadu, jallikattu has assumed extremely cruel and inhuman dimensions. Bulls are beaten and driven into a screaming frenziedcrowd who in turn torture and try to overpower them.14 Bullock-cart races in Maharashtra are in no way different.15 A bull usually moves in a relaxed manner but if frightened, it adopts flight or fight responses which are exploited in both races. The court felt that it has a duty under the doctrine of parens patriae to take care of the animal rights.16 

Provisions in the Central Legislation

The P.C.A. Act, a central legislation enacted by Parliament, is conspicuous in embodying certain essential restrictions and prohibitions.17 It imposes on the persons-in-charge of animals the duties to ensure the well-being of the animals as well as to prevent infliction of unnecessary pain and suffering on them. Obviously, this provision recognizes the corresponding rights of the animals to get protection from any unnecessary pain or suffering.Penalty is provided on any person who ‘beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner, permits, any animals to be so treated.’ 18 The expressions ‘or otherwise,’ are used to cover all situations, where the animals are subjected to unnecessary pain or suffering. The acts of torturing bulls in jallikattu and bullock-cart races violate these statutory mandates. There are exceptions such as destruction of stray and dangerous dogs, use of animals for research and experiments and the preparation of animal food without unnecessary pain or suffering. In the court’s opinion, entertainment, exhibition or amusements by torturing animals do not fall under these exempted categories.19 On the other hand, these events are meant not for the well-being of the animal, but for the pleasure and enjoyment of human beings, particularly the organizers and spectators who render the bulls only an instrumental value and forget their intrinsic worth. Thus, sadism and perversity are writ large in the actions of the organizers and the spectators.

Humanism

Article 51A (h) added by the 42nd amendment imposes a fundamental duty on every citizen ‘to develop scientific temper, humanism and the spirit of inquiry and reform’. In Nagaraja, the Supreme Court read ‘humanism’ into P.C.A. Act and said that its provisions endow the animals with the intrinsic values and inherent dignity to live peacefully and cast a duty on the persons in charge to ensure well-being of the animals.20 The Court noted the anthropogenic bias - which forgets that animals also have intrinsic worth and value - hidden in the usual statement that human life is not like animal existence.21 

Conflict between centre-state laws

Bulls are basically draught and pack animals used for farming and other agricultural purposes. They are not anatomically designed as ‘performing animals’ for the purpose of any entertainment to which public are admitted through sale of tickets. Contrary to what was alleged by the appellants, the court noticed inNagaraja that Tamil culture and tradition ‘do not approve of infliction of any pain or suffering on the bulls but on the other hand, consider and worship the bull as the vehicle of Lord Shiva.’22 The court had to resolve the conflict between a state enactment, the Tamil Nadu Regulation of Jallikattu Act, 2009 and the P.C.A. Act, a central legislation. Prevention of cruelty to animals is an entry in the concurrent list in the constitution.23 When a central legislation has occupied the concurrent field the state law on the same subject has to yield to the central law. Differing views of culture and tradition, assuming they exist, should also give way to the central law. A welfare legislation based on eco-centric principles P.C.A. Act recognizes the intrinsic value and worth of animals and aims at preventing the infliction of unnecessary pain or suffering on them24 . Needless to say, that the central legislation should supersede the regional customs and practices inflicting cruelty to other living beings and replace any state law to the contrary.

A Paradigm Shift

In the development of international environmental law, there is a slow but definite shift from the anthropocentric approach to eco-centric perspective.25 The apex court noted that this change is taking place in the legal systems in Europe.26 Of recently our apex court has applied the eco-centric principles in a few landmark cases and recognized that every species has an inherent right to live and shall be protected by law.27 This approach of the court reflecting a deviation from anthropocentricism to eco-centrism proclaims the beginning of an era of juridical acceptance and application of the emerging new environmental philosophy.28 

The Guidelines of World Health Organization of Animal Health (OIE) recognized five freedoms for animals - freedom from hunger, thirst and malnutrition, from fear and distress, from physical and thermal discomfort, from pain, injury and disease and freedom to express normal patterns of behavior. According to Nagaraja, these freedoms are as fundamental to animals as the fundamental rights are to the citizens.29 Though they find a place in P.C.A. Act, these freedoms, by the decision in Nagaraja,stand elevated to the status of fundamental rights of animals. The court’s eco-centric approach that every species has a right to life and security symbolizes another significant addition to the array of rights under Article 21 the Constitution of India. Nagaraja is undoubtedly a guiding star in the ever growing frontiers of protection of environment and in the ever widening horizons of constitutional interpretation.

Foot Note:

1. Section 2(a). Environment  ‘includes water, air and land and the inter-relationship that exists among and between water, air and land, and human beings, other living creatures, plants, micro-organisms and property’.

2. Animal Welfare Board of India v  A. Nagaraja, (2014) 7 SCC 547 p 595; 2014(2) KLT 717 (SC) p.757.  

3. Constitution of India, Article 48A.  “The  State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.“

4. Ibid,  Article 51A  (g). “ it shall be the duty of every citizen of India - ...(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to compassion for living creatures ….(h) to develop the scientific temper, humanism, and the spirit of inquiry and reform”.

5 . Ibid.  (2014) 7 SCC 547 p 596.

6. AIR 1958 SC 731.  

7. AIR 2006 SC 212. 

8.     AIR 2006 SC 212pp  242,243.

9.     Ibid pp 248, 254.

10.   (2006) 4 SCC 162 p 196.

11.   AIR 2007 SC 1046.

12.   Section 11 (3), see n. 18 infra

13 .  Animal Welfare Board of India v  A. Nagaraja, (2014) 7 SCC 547; 2014(2) KLT 717 (SC). The Bombay High Court had upheld the prohibition of all such practices of torture in Maharashtra while the Madras High Court allowed  Jallikattu approving the Tamil Nadu Regulation of Jallikattu Act, 2009. In a special leave petition, the apex court went into the full gamut of the problems. 

14.   Ibid pp.562-578.  A bull ’s horns were tied around of silver or gold coins and the person who fought and got the money was considered to be brave. The practice is different now. Ear cutting, fracture and dislocation of tail bones by deliberate pulling and twisting, poking bulls with knives and sticks, rubbing irritants into the eyes and noses of bulls, packing them so tightly into narrow waiting corridors, forcing them to stand in their own waste are illustrations of cruelty practiced in  jellikattu in order to agitate the animals.

15.   Ibid p 578. In some races, a horse and a bull on the same cart are being held or in some others, a bigger bull is paired with a smaller one.  To make them run fast, bullocks are tortured by whipping, tail twisting, poking with spiked instruments and giving electric shock. Blind folded bullocks are brought through a ghat and let free suddenly after unfolding.  The sudden exposure to the light and the torture made by the people terrify bullocks  to run on the slope. 

16.  Ibid p 581.

17.  Sections  3,11(1) (a) and 11(3).

18.  Ibid.(s).  

19. Animal Welfare Board of India v  A. Nagaraja 2014 (2) KLT 717 (SC) =  (2014) 7 SCC 547 pp. 583,584.

20   Ibid pp. 584,585.

21   Ibid p.585. 

22.  Ibid p. 589.

23.  Entry 17, List III, Constitution of India.

24.  Ibid pp  589, 590.

25.  Ibid pp 590, 597. The court noted that this shift were in three stages - (1) Sovereign nations had unlimited right of to exploit natural resources. Declaration of the Protection of Birds Useful to Agriculture 1875, Convention Designed to Ensure the Protection of Various Species of Wild Animals which are Useful to Man or Inoffensive 1900 and Convention for the Regulation of Whaling  1931. (2) Recognition of International equity – a shift from anthropocentrism. The Whaling Convention 1946 is  ‘to safeguard for future generations the great natural resource represented by the whale stocks’.  The Stockholm Declaration 1972 states that man bears a solemn responsibility to protect and improve the environment for present and future generation. (3) Biodiversity Convention 1992 lays stress on the intrinsic value of biological diversity and of the ecological, genetic, social, economic, educational, cultural, recreational and aesthetic values of biological diversity and its components.  

26.  Ibid p 592. The amendment in 2002 to the German Constitution recognized the dignity of the animals. German animal welfare law provides protection to animals from animals fight and other activities resulting in the pain, suffering and harm for the animals. Laws in UK, Austria, Switzerland, Austria, Slovenia and Norway confer considerable protection so as to balance the animal owners’ fundamental rights to property and the animals ’ interest in freedom from unnecessary suffering or pain, damage and fear.

 27. Ibid p.591.  T.N. Godavarman Thirumulpad v. Union Of India  (2012) 3 SCC 277, T.N. Godavarman Thirumulpad v. Union of India (2012) 4 SCC 362 and  Centre for Environmental Law World Wide Fund - India v. Union of India & Ors. (2013) 8 SCC 234.

28.  See  Satsh C. Shastri, “Environmental Ethics Anthropocentric to Eco-centric Approach: a Paradigm Shift “,  55 Journal of the India Law Institute (2013), 522 p 530 and P. Leelakrishnan, “ Protecting Environment: the Anthropocentric and Eco-centric Approaches”, 2012 (4) KLT Journal,  pp.6-10.

29.     Animal Welfare Board of India  v.  A. Nagaraja (2014 (2) KLT 717 (SC) =  (2014) 7 SCC 547 p 593

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”.