Whether Section 437A of Criminal P.C. Requires

 A Wider Interpretation

(By George Sebastian, Advocate, Ernakulam)

The Hon’ble High Court of Kerala in Sareena v. State of Kerala reported in 2013 (1) KLT 202 had occasion to consider the scope and object of Section 437A of the Code of Criminal Procedure which came into effect on 31.12.2009 by virtue of Criminal Procedure Code (Amendment Act) 2008 (Act 5 of 2009). In the said judgment, the Hon’ble High Court held that the object of the said provision is to secure the presence of the accused before the Higher Courts in cases where appeals are filed challenging the verdict of acquittal. In other words, the Hon’ble High Court held that bond under Section 437A of Cr.P.C need not be executed in cases which result in conviction.

Section 437A of Cr.P.C reads as follows:-- 437A.  Bail to require accused to appear before next Appellate Court- (1) Before conclusion of the trial and before disposal of the appeal, the court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the Higher Court as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and such bail bonds shall be in force for six months.

(2) If such accused fail to appear, the bond stand forfeited and the procedure under Section 446 shall apply.

The intention of the statute is to secure the presence of the accused before the Higher Courts in case a notice is issued by the Higher Court in respect of any appeal or petition filed against the judgment of the court which requires the execution of the bond. The statute does not distinguish between cases which result in acquittal and the cases which result in conviction. Then the question to be considered is whether an appeal or any petition can be filed against the accused even in cases which result in conviction.  There are various provisions in the Code of Criminal Procedure which enable the State and the victim to challenge the judgment in appeal or revision even when the accused is convicted. As per the proviso to Section 372 of the Code of Criminal Procedure, a victim can challenge the judgment of a criminal court not only when the accused is acquitted.   As per the said proviso, the victim has a right to challenge the judgment when the accused is convicted for a lesser offence or if inadequate compensation is ordered. Likewise a victim or a de facto complainant can challenge the judgment of a criminal court in revision if the sentence is inadequate or if the judgment does not provide for payment of compensation. Under Section 377 of the Code of Criminal Procedure, the State can file an appeal if the sentence is inadequate. We often come across judgments of the criminal courts which award flee bite sentence to the accused and the accused prefer to undergo the sentence without challenging the same on account of the fact that the sentence is too low. At the same time the victim and the State may be aggrieved by the judgment and they may challenge the same. The presence of the accused has to be secured in those appeals and petitions by the victim and the State. There are instances where the Appellate Court disposing of an appeal by the accused against conviction and sentence reducing the sentence or altering the conviction to a lesser offence. The victim and the State may challenge those judgments to the extent they are aggrieved. At the same time, the accused may not challenge the same. In those situations also, the presence of the accused has to be secured before the Higher court. If the intention behind Section 437A of Cr.P.C is to secure the presence of the accused before the Higher Courts, limiting the scope of Section 437A by holding that the same is to be invoked only in cases where the accused is acquitted, the intention of the legislature will be defeated. Therefore Sareena’s case (2013 (1) KLT 202) which restricts the scope of Section 437A of Cr.P.C requires reconsideration.

International Women’s Day 

(By Chief Justice Mrs. K.K. Usha (Retd.))

8th of March every year is being observed as ‘International Women’s Day’. Year after year we conduct seminars, discussions and take fresh oath for betterment of the status of women all over the world. Women’s rights are human rights declared the Peking Conference of United Nations. But, what we find all over the world is that while there is improvement in the status of women in certain areas like education, employment and earning capacity, violence meted out against women is on the increase in an alarming scale.

‘Social, Cultural and Legal Reforms for Protecting Women’ is the topic of the seminar tomorrow.

I am of the view that legal reforms by themselves will not be of much help. That has been our experience with the existing laws enacted for the protection of women. Take the case of Dowry Prohibition Act, which came into force in July, 1961. Day in and day out its provisions are being violated and ridiculed by majority in the society to the detriment of women. The only effect of the above enactment was making special provisions for ‘dowry death’, in the Indian Penal Code, Criminal Procedure Code and the Evidence Act. While the Dowry Prohibition Officer sits at his office without any work as no complaint is being filed before him, the Revenue Divisional Officer is busy in deputing authorized officers to conduct inquests of dead bodies of women, who are victims of dowry death. There is no change in the mind set of the society even now in the matter of dowry. Young men, who declare independence from the ties of their parents, are too willing to succumb to the desire of their parents to collect dowry as much as possible from the girls’ parents at the time of their marriage. Most of the cases of violence against married women within the family arise out of the dispute regarding the quantum of dowry they brought. Perpetrators of this type of violence include both men and women in the family.

Increasing instances of violence against women and children are necessarily to be stopped. A change in the mind set of the society is what is required.

How do we go about changing the society’s mind set? It is necessary that women should be prepared to react against any type of insult or violence against them, whether in public place or within the family. We know many cases even educated women, who come to the hospital with injuries after being thrashed by their husbands or sons cook up a story of fall or hit on the wall or furniture. When violence is committed outside home also she is hesitant to complain fearing social stigma and sometimes even turning of the table against her. Unless she reacts to the injustice there will be no end to her misery.

There are many examples where protest by ordinary people against social inequities, had later led to great changes in social set up and legal rights. I can quote the case of Mrs.Rosa Parks, an ordinary African American seamstress in Alabama, whose protest against laws of segregation while travelling in the bus triggered a whole movement for civil rights.

In 1955, Mrs.Rosa Parks was returning home after work in a bus, the driver asked her to move to the back of the bus and make way for whites, as the laws of segregation required. When she refused to move, she was told by the authorities about the consequences, including prosecution. Still she was not willing to vacate her seat for the white passenger and move to the back of the bus. She was then arrested and convicted and fined $10, plus $4 as court costs. But, this episode set off a boycott of the Montgomery bus company that lasted 381 days and led to a Supreme Court decision that forced the bus company to desegregate, casting a mighty blow against Jim Crow laws that provided separate facilities for blacks and whites. Over the next five decades, Mrs.Parks became an enduring symbol of the struggle for equality. As mentioned earlier, her action triggered a whole movement for civil rights. When she died at the age of 92, her coffin was brought to Capitol and was carried by a military guard to lie in the Rotunda. This was pursuant to a concurrent resolution passed in the House of Representatives on October 27, 2005. It reads as follows:

“Resolved by the Senate (the House of Representatives concerning, That, in recognition of the historic contributions of Rosa Parks, her remains be permitted to lie in honor in the Rotunda of the Capitol from October 30 to October 31, 2005, so that the citizens of the United States may pay their last respects to this great American. The Architect of the Capitol, under the direction and supervision of the President pro tempore of the Senate and the Speaker of the House of Representatives, shall take all necessary steps for the accomplishment of that purpose.”

She became the first woman ever accorded such a tribute and just the 31st person over all since 1852, a list that includes Abraham Lincoln and nine other Presidents. At a ceremony attended by dozens of dignitaries’, President Bush and his wife laid wreaths on her coffin. Thousands of people came to pay respect.

Her coffin came to Washington after a memorial service earlier in the day at St.Paul A.M.E.Church in Montgomery, where Mrs.Parks was once a member. Hundreds attended, including Secretary of State Condoleezza Rice, the first black woman to hold that office. She said: “I can honestly say that but for Mrs. Parks, I probably would not be standing here today as Secretary of State”.

The statue of Mrs.Rosa Parks was unveiled at U.S.Capitol on 27th February 2013. President Obama attended the ceremony. The statues in the Capitol are donated by the individual States. But the tribute to Mrs. Parks was unanimously authorized by the Congress. It is treated as a national statue and the ceremony will be a national moment, an occasion to recount a watershed event in the history of United States and reaffirm their capacity to confront injustice and lift each other up.

Protest against violence to women should come from the male section of the society also. Their mothers, sisters, wives and daughters need protection. 

It is absolutely necessary to bring up our young boys by their family teaching them from young age to respect women and not to treat them as a chattel, which can be used, enjoyed and discarded according to the whims and fancies of men. It is also necessary to train the girls to make out the pit holes which the society has laid in their path against their interests and to inculcate in them a spirit to defend themselves against any insult or violence against them. Awareness programs are to be conducted regularly in schools and hostels. It is quite common that abuse of girls at home is brought out during interaction with their teachers in the school.

Another important aspect is sensitization of the authorities dealing with complaints from women who are victims of violence. Mainly the police. One of the main reasons for the women not to make complaint before the police is the treatment meted out to them in many cases. The language in which they are addressed and the manner of questioning often make them feel that they have committed a crime. This is the reason for the large gap in the number of cases reported in National survey like National Family Health Survey and the figures from the police National Crime Record  Bureau.  A decent treatment  and  a patient hearing are important.  So also there should be no delay in reaching help.

Sensitization of the judiciary is also a major factor to create a feeling of security for the vulnerable women and children in the society.

Coming to media, it plays a very important role. Many of the cases have come out into light only due to the effort of media, even though its memory is also short. Once they get a new victim they lose interest in the earlier one and further follow up is not taken.

Another drawback is politicization. The colour of the party flag of the perpetrator of violence or his status in the party is irrelevant. But unfortunately on many occasions attention from the real issue is deflected due to politicization. This should not be allowed to happen. One has to look at the issue from the point of view of the victim.

Few days back news papers reported that United States will be posthumously honouring Nirbhaya, victim of Delhi gang rape, to the prestigious International Women of Courage Award for inspiring people to fight against gender based violence. The State Department announced “For millions of Indian women, her personal ordeal, perseverance to fight for justice and her family’s continued bravery is helping to lift the stigma and vulnerability that drive violence against women”. The State Department said, “She bravely recorded two police statements while in the hospital, repeatedly called for justice against the attackers, and stated her will to survive to see justice done”. I have a mixed feeling of pride that an Indian girl is awarded the prestigious International Women of Courage Award and at the same time shame and despire in the incident, which lead to the Award and which will be recorded in history as a black blotch on the face of the much lauded culture of Indian society, where women were supposed to have been treated as Goddesses.

In January 1900 while Swami Vivekananda was lecturing about Hindu philosophy at California to an American audience one person asked him to tell them about Indian women, their customs and education and position they hold in the family. In his reply, at one place, he says the ideal woman in India is the mother, the mother first and the mother last and God is called mother.

Where are we now? From 80 year old grandmother to three months old baby girl are sexually abused by not only strangers but their own kith and kin also. We shall not tolerate this anymore. When I say we, I mean both men and women of the present day society. Let us work together.

Apart from imposing stringent punishment on the perpetrators of such crime, they should be ostracized from the society. Let Kerala, as in many other areas give leadership to create an atmosphere where women and children can lead a life with safety and dignity.

Some Case Laws Worthy of Remembrance

(By N. Subramaniam, Advocate, High Court of Kerala)

Estoppel:

Principle of Estoppel as enshrined in S. 115 Evidence Act is not applicable to Criminal Law. 1918 Mad 168 at 172 (Emperor v. Mohan Raw).

Adverse  Possession:

Submerged Land — No adverse possession is maintainable. 1902 (29) I.A.A 104 = 

ILR 29 Cal. 518 (PC) at page 535 (Secretary of State for India v. Krishnamani Gupta).

Adverse  Possession  can  be  had  against  trees:

AIR 1939 Bom. 405 (Putlaji v. Damodar) ; 2004 (2) CCC 418 (Case Law Discussed) (Kulwan T Singh v. Phulasingh) (para 14) Nasban Rights in fruit trees standing on the earth are immovable property and said can be perfected by adverse possession. (Shanta Bhai v. State of Bengal  (AIR1958 SC 32).

Adverse  Possession  against  oneself  is  possible:

ILR 29 Cal. 518 (P.C.) (page 534) = 1902 (29) I.A. 104 at 114. True owner in possession, a lessee of trespasser: Possession of such owner would be that of trespasser and after 12 years of trespasser’s title would become complete as against the true owner (Secretary of State v. Krishna Mani Gupta). Attachment will not affect continuity of adverse possession. AIR 1926 Mad 42. Renganathan Iyer v. Sreenivas Aiyangar. At page 43 column 1.

No  adverse  possession  against  a  deadman:

1986 KLT SN 7 (C.No.12) = 1986 (1) CCC 839 (KERALA HIGH COURT) (C. Subramanian Pillai v. S. Kumara Pillai para7) Sri. Varghese Kalliath J.;  AIR 1947 P.C. 19. (Bibabhatti v. Ramendra Varayan).

Adverse  possession  against  part  is  maintainable:

AIR 1924 Patna 402 at 416 (Sashibhushan v. Ramjas); AIR 1944 Nag. 20 (Nagorao v. Jageshar); AIR 1931 P.C. 180. (Naageswwara Box v. Bengal Coal Co.); AIR 1942 All. 1 (Orendra Chandra v. Bulaqiram); AIR 1925 Sind 201 at 202 (Ramszan v. Fakir Mohammed); AIR 1936 Lah. 208 (Shermohammed v. Shier Muhammed); AIR 1929 Lah. 125 (Amritsarya v. Diwan Chand); AIR 1926 Pat. 385 at 391 (Kesabji v. Sashibhushan)

Monetary  greed  overtakes  brotherly  affection:

Brotherly affection was overpowered by monetary greed.; AIR 1914 P.C. 243 (Charles Edwar Victor Seneviratne Corea v. Mohantantrigey. Iseri  Apphamy) is a case from Ceylon) quoted by Learned Judge K. Sukumaran in KUC 522 (Miathan v. Ambunhi).

Partnership:

Bribe, if given with consent of partners for achieving an object of firm and it is entered in books of accounts of the firm, even if it is illegal, it need not be excluded as an expense of the firm. Mulla on Partnership 9th Edition page 152.; 1932 All 128. (Jyoti Prasad v. H. Ardwarimal) (137.1.C. 334).

Review  in  Administrative Law:

Review in Administrative Law need not be conferred by any statute; AIR 1980 SC 1461 (R.R. Varma v. Union of India); 1988 (1) KLT 116  (Ramachandran v. State of Kerala. Para 10).

Difference  between  a  Successor  in  title  and  Successor  in  interest:

A successor-in-title succeeds on succession either testamentary or intestate. Successor-in-interest includes any right, title or estate.; 2010 AIHC 3497 (Para 28 to  30) (Vasant Miahadev Tikekar v. State of Maharashtra) 1941 FCR 72 (Re-Hindu Women’s Right to Property Act 1937).

Plea  of  Justurtiea  is  not  available  to  defendant  in  a  suit  for  injunction:

1986  KLT  390.

Easements  Act:

The owner who owns soil has ownership to sky; Surface goes with the land. Use our property so as not to damage others; 2011 (6) MLJ 544 (11 & 12) (Lakshmanan v. Ayya Swamy).; Foreign case law not binding as per Indian Constitution but has persuading effect only.;

2011 (3) KLT SN 26 (C.No.30) SC = (2011) 4 SCC 454 (Headnote V) (para 99) (Aruna Ramachandra Shanbaug v. Union of India)

Ignorance  of  law  is  not  an  excuse:-  Exception:

It is often said that everybody is presumed to know the law. But that is not a correct statement. There is no presumption in the country that everyone knows the law. It would be contrary to common sense and reason, if it were so.; AIR 1979 SC 621 at 629 para 6  (M.P. Sugar Mills. v. State of U.P.); 1846 (3) CB 706 (Common Bench rep. No. 1845-1856). (Martindale v. Falkner); AIR 1979 SC 621 is followed in AIR 1986 SC 806. (Union of India v. Godfrey Philips India & Anr. ); ILR 13 Cal 266 (Huro v. Suryamayi) is an authority for the position that where the period was exceeded by a bona fide mistake as to which court an appeal would be sufficient cause under S. 5 of Limitation Act.

Ignorance  about  gazette  publication:

Principle that everybody knows the law cannot be extended to all events especially in relation to Gazette Notification as the same has no support of any legal provision. S. 81 of Evidence Act only says that Court can presume genuineness of anything in Gazette Publication. S. 81 do not say that every citizen knows the contents of gazette publication.; ILR 1989 Kar. 920 (SB) (para 8) (Union of India v. Sterling Varnishes); ILR 1993 Karnt.1548 para .12 to 14 and 21 (Indonesian Foods (I) v. Appraiser of Certain) 

Equity  in  Taxation  Laws:

General principle is that there is no equity in taxation laws. But when it comes to appreciation of hardship of an assessee the Supreme Court was readily prepared to depart from this rule; AIR 1972 SC 126 (10) = 82 ITR 570 (10) (R.B.J. Kuthira v. I.T. Commissioner Punjab); AIR 1987 SC 522 (17) (Navab Sir Mr. Osman Ali Khan v. W.P. Commissioner)

FASLI  year  begins  from  1st  July  and  ends  on  30th  June  next  year:

AIR 1951 T.C. 177 (4) (DB) (at 178 col.2) (Heera Pillay v. Jegan Narayana);

Trial Court is also a Court of record.

AIR 1991 Mad. 323 (Vdyacharan Sukla v. T.N.Olympic Association para 56-47 page 363).

A  son  is  a  son  until  he  gets  a  wife:

A daughter is always a daughter throughout her life.; AIR 1996 SCC (L to S) 52 (Savitha Samvedi v. Union of India) quoted in ILR 2010; Kar. 1486 in para (Pushpalatha v. V. Padma)

Lease:

In India lease can be had without agreeing to pay rent.; AIR 1947 Cal. 440.(Rajendranath Manna v. Jagjiban Hansda) (This is termed as lease without consideration) (page 4,5);

Date  not  mentioned  in  a  document. 

Date is not a material part of document. It can be supplied by oral evidence; AIR 1933 Lah. 194 (Punjab National Bank Ltd. v. Mathradas); AIR 1923 Lah. 495= (1928) 98.1.C. 940 (Sheokairan v. Chirayilal); AIR 1919 P.C. 44= 53. IC 901 (Varada Pillai Jeevaratnammal). 

If  date  is  mistakenly  given,  oral  evidence  is  admissible  to  correct  the  date

19 I.C. 124.

Identity of parties, identity of properties and boundaries are terms of a document.

This is in contra distinction with payment or otherwise of consideration, handing over of possession. Descriptions which are not terms of a contract; 2013 (1) KLJ 256 = 2013 (1) KLT 293 Suresh v. Tobin.; AIR 1935 All 529; AIR 1925 PC. 25 AT 77 ; 1984 KLJ 415.

Oral Evidence challenge the nature of transaction evidenced document is not barred and oral evidence is not barred to contradict the recitals in a document.; AIR 1983 SC 20; (2009) 5 SCC 713 para 31(Vimalchand Ghevarchand v. Ramakan); (2006) 1 SCC 697 para 24 (R. Janaki Eknatha Jadoo) (2003) 6 SCC 595 (Roop Kumar v. Mohan Thedani); (2006) 6 SCC 293 (Mulasahakari Shakarana ) (para 23 to 32); AIR 1984 Orisa 62 (Mahendra Malik v. Brudaban D) (78);

Oral evidence is permissible to show that deed was created for evidence and was not intended to be acted upon AIR 1963 M.P. 210. (21) Bhuralal v. Bhiriya ; 2002 (1) KLT 864 = ILR 2002 (2) Ker.40 DB (Bhaskaran Nair v. Habeeb Mohammed) ;

Poverty is a good ground for condonation of delay.1978 Bom. 365. Para 10. Jaswanth v. Vithal.

The above information may be useful to those lawyers, especially youngsters, who are not aware of the positions and it may be help to some at some time. 

Arrest of Indian Flag Vessel Owned by Indian Entity,

 can Admirality Jurisdiction be Invoked ?

(By Advocate V.B. Hari Narayan, LL.M., Maritime Law (Soton), Advocate, High Court of Kerala)

An Indian flag vessel owned by an Indian entity was ordered to be arrested by the High Court invoking admiralty jurisdiction pursuant to an admiralty suit filed by an Indian Company on the plea that they have a maritime claim against the vessel. 

The vessel being an Indian flag vessel owned by an Indian entity, can the claimant invoke the admiralty jurisdiction of the High Court to secure her arrest to provide security for its maritime claim, if any, is the short question to be considered. In my respectful view the claimant has approached the wrong forum to redress its grievance and the remedy lies in the form of a civil suit before the appropriate Court of law to be determined based on the place where the cause of action has arisen.  The claimant seems to have approached the High Court on a complete misunderstanding of the basic principles of admiralty law.

The Admiralty Court, originally applied civil law.  At that early stage of the history of the Admiralty Court in the seventeenth and eighteenth centuries, there existed an archaic right, long since obsolete, in terms of which it was possible to arrest the actual person of the defendant, if he was within the realm.  The last recorded instance of such an arrest appears to have occurred in 1780 (Per Dr.Lushington in The Clara (1855) Sw 1 accepted as correct in The Beldis [1935] All ER Rep 760 at 768.).  Any personal property of the defendant within the realm, whether it was the ship or other property, could also have been arrested (The Heinrich Bjorn(1885) 10 PD 44 also cited in The Beldis [1935] All ER Rep 760 at 765.).  It did not matter whether or not the ship had no connection with the cause of action, so long as the ship belonged to the defendant.  The purpose of the arrest was to found jurisdiction (The Beldis[1935] All ER Rep 760 at 767 and the authorities cited with approval.), and to make the defendant provide bail or security for the claim (The Banco[1971] 1 Lloyd’s Rep 49 at 531.).  If the defendant did not appear, the proceedings went on as an action in personam(The Beldis[1935] All ER Rep 760 at 767.).

Historically, a ship travelling the world’s oceans is likely to encounter legal hurdles as part of its operation or trade. Thus, where a claimant has a claim against a ship, his chance of recovery would be very limited if the ship is permitted to leave the jurisdiction because the ship owner would be in a foreign jurisdiction and the only asset within the claimant’s jurisdiction would be the ship. A practical solution to this problem was achieved through a special legal regime of actions against the ship where the ship herself is regarded as the wrong doer or the defendant as the case may be. Historically such actions were subject to the Admiralty Court in England which was the only Court that had jurisdiction to proceed against the ship in respect of certain claims. This was followed by several national laws and international conventions crystallizing the procedure for arrest of foreign ships. The most popular and commonly used convention is the International Convention for the Unification of Certain Rules relating to the Arrest of Sea-Going Ships 1952. The Convention, which entered into force at the international level on 24 February 1956, has received the ratification or accession of 78 States and represents the most commonly found ship arrest law worldwide.  The convention is also incorporated into many of the major admiralty jurisdictions. However, India has not ratified this convention, nor the subsequent Convention in 1999. Though India has not ratified many International Conventions governing the field, by virtue of the decision of the Hon’ble Supreme Court of India in MV Elisabeth v. Harwan Investment & Trading Pvt.Ltd (AIR 1993 SC 1014) the High Courts (including the chartered High Courts of Bombay, Calcutta and Madras which were earlier conferred with admiralty jurisdiction under colonial legislations) in India could look upon such conventions by treating them as part of common law and made applicable for enforcement of maritime claims.

None of the colonial legislations by virtue of which Courts in India started exercising admiralty jurisdiction define an arrest.  Instead, Article 1(2) of the International Convention for the Unification of Certain Rules relating to the Arrest of Sea-Going Ships 1952, defines arrest as meaning “the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.”  The arrest of a ship will result in the physical detention of the ship.  

The arrest of a ship must strictly satisfy the requirements stipulated in Article 1 which provides for different types of claims that can be classified as maritime claims.  There is no room for the exercise of an interpretation of the legislation solely in the interests of justice (The Kommunar No. 2 [1997] 1 Lloyd’s Rep 8 at 11.).  In other words, it is not enough to argue that the justice of the case demands that the ship be arrested because the court does not have equitable jurisdiction to order the arrest of a ship. 

Article 2 of the International Convention for the Unification of certain rules relating to the Arrest of Sea-Going Ships, 1952 (in short the Arrest Convention) states that, a ship flying the flag of one of the contracting states may be arrested in the jurisdiction of any of the contracting states in respect of any maritime claim. A plain reading of the above provision will make it clear that the concerned High Court before which a claim is brought asserting maritime claim can in exercise of the admiralty jurisdiction arrest such foreign vessel if it is apprehended that she will leave the jurisdiction thereby rendering the claimant with no remedy of recovery. The whole purpose of arresting the vessel being to secure jurisdiction and obtain security for the claim, in my respectful view the same is applicable only for foreign vessels and not Indian owned, Indian registered ships. Because as far as the claim is against an Indian owner, the claimant can very well approach the concerned Civil Court under the provisions of the Code of Civil Procedure and get an order of attachment against his properties. Since the claimant has a very effective remedy by way of approaching the Civil Court, it is not necessity to approach the High Court invoking its admiralty jurisdiction to arrest an Indian vessel. Therefore, invoking the admiralty jurisdiction to arrest an Indian vessel owned by an Indian Corporation/ Company is not at all warranted and will result in the claimant being held liable for wrongful arrest.

Obituary for Professor J.D.M. Derrett 

(By Dr. Werner Menski, SOAS, University of London)

Professor John Duncan Martin Derrett, DCL, PhD, LLD (30.8.1922 --- 21.10.2012), a barrister and for a long time the major global expert in the Western world on Hindu law and the laws of India, passed away at the age of 90 in the idyllic village of Blockley in the Cotswolds. After a distinguished career as an academic in several related fields, prominently Hindu and Indian law and Christian theology, he enjoyed 30 years of research-active retirement, surrounded by books and papers collected over decades. His large family arranged a church ceremony in his memory on 1 November 2012. Jeremy Bourne describes him on that occasion as a man of towering intellect and notes that the local residents knew that they had a scholar of international reputation living amongst them:

As a textual analyst and a student both of early Christian and Hebrew literature, and also of the Buddhist and ancient Hindu religious texts, he was working in a field known only to theologians and scholars of comparative religion. He published some forty-four books. He had a mastery not only of classical Latin, Greek and Hebrew, and hence a knowledge of Aramaic. He also had a fluent understanding of Sanskrit, and thus of early Hindi, Pali and no doubt of Tamil.

Duncan Derrett, as he was known locally, was an active President of the Antiquarian Society and even published several collections of local historical manuscripts, which can be found on the internet. After his retirement from SOAS, the School of Oriental and African Studies, University of London, where he was Professor of Oriental Laws from 1965-1982, he became engaged in intensive research on complex, often controversial questions of theology and comparative religion. His critical scholarly analysis upset quite a few scholars through his significant findings that Christian religious traditions were to some extent influenced by Buddhist and early Hindu concepts.

What is described by those around him as ‘the other side of Duncan’s scholarship’ will particularly interest older readers of the KLT, for Professor Derrett had a long-standing connection with this leading Indian law journal and its much-respected Founder Editor, M.C.Mathew, until I took over from him. In 1982, we were both on the Editorial Committee. That year he published the last of his articles at pp. 31-33 of the KLT Journal Section on ‘Nullity of marriage and change of religion’. This is item 397 in a list of books and articles prepared as part of Indology and Law. Studies in Honour of Professor J. Duncan M. Derrett, edited by Gunther-Dietz Sontheimer and Parameswara Kota Aithal (Wiesbaden: Franz Steiner Verlag 1982), which speaks volumes about this great scholar’s life work. He continued to publish some further articles also on Hindu law, even in the early years of the new Millennium. However, after his retirement from SOAS, his attention clearly shifted to New Testament Studies and related topics. 

The Preface in Derrett’s Festschrift highlights that he ‘never follows any of those “schools of thought” or short-lived academic fashions which sometimes reflect more on the state of these disciplines in the country of their origin than on the true India’ (italics in the original, p. v). He laid to rest Sir Henry Maine’s rather superficial remarks about the development of traditional Indian legal culture. Above all, he deeply engaged with Indian judicial decisions and produced several major books on Indian family law, prominently An Introduction to Modern Hindu Law (Oxford: OUP 1963), A Critique of Modern Hindu Law (Bombay: Tripathi 1970), and The Death of a Marriage Law (New Delhi: Vikas 1978). These may be outdated today, but inform researchers reliably about earlier stages of development and the difficulties in finding the ‘right law’ in one of the world’s most important jurisdictions. Indeed, the editors of the Festschrift noted (p. vi):

For Derrett the occupation with India is never only an abstract, theoretical armchair affair. His teaching has inspired many Indian and European law students. His critiques of court decisions are a useful corrective in the development of modern Hindu law, fully and gratefully acknowledged by many Indian students of law, advocates, and judges. They do not fail to see that his relentless criticism is matched by a deep sympathy for India and her well-being in the modern world. 

His collected works in four volumes, Essays in Classical and Modern Hindu Law (Leiden: Brill 1976-78), are further testimony of towering achievements. Religion, Law and the State in India (London: Faber & Faber 1968) has probably most lasting relevance as a historical study and was reprinted in India in 1998. His early textbook on comparative law, An Introduction to Legal Systems (London: Sweet & Maxwell 1968) was also reprinted (New Delhi: Universal 1999). It allows insights into how much progress has been made in that field since the 1960s, when the comparative law programme at SOAS was beginning to be conceived.

Indian judges, in particular, appreciated his enthusiasm for understanding legal decision making processes in the intensely plural and messy context of a massive hybrid legal system. When I took over from him at SOAS in the early 1980s, we did not get much of a chance to work together, as he stage-managed a dramatic exit into early retirement, leaving me to my own wits. Glad to have survived this, I obtained belated approval of my predecessor in an almost embarrassing review of Hindu Law Beyond Tradition and Modernity (New Delhi: OUP 2003) in the Journal of the Royal Asiatic Society, 15.1 (April 2005), pp. 110-112. This grand old man, a true scholar, was evidently misunderstood by many around him and did not endear himself to unfair critics by his sharp wit and intolerance of nonsense. 

Having ended the long wait at the doors of the crematorium, as he once wrote to me, Professor Derrett will be remembered forever, also and maybe specifically in Kerala, as the major British scholar of Hindu law in the world. His legacy lives on in his innumerable publications, in my work, and in the many young people who are not too blinded by modernity to discover today that in bygone times there was a great scholar of Indian laws in London, a true rishi on the banks of the Thames, as it was once put. In his own time, he may have predicted some elements of the future wrongly because he was perhaps, as a lawyer, a little too influenced by colonial predilections and by the dominant legal positivist orientation of his time. This made him believe in the benefits of a Uniform Civil Code for India once the time was right. Today we know that this time will never come, but Derrett’s parting advice in the 1978 book (p.206) is truly far-sighted. He predicted that the new self-image of modern Indian women would make a huge contribution to shaping the legal system of the future into a new ‘people’s justice’. Finally, with explicit reference to former Supreme Court Justice V.R. Krishna Iyer, who is actually much older than Professor Derrett and survives even longer, the parting guidance is that justice, also in India, is prominently and safely placed in the hands of judges. What wise words from a great legal scholar who, in his own way, believed in the rule of law. 

In January 2009, a special panel of the first LASSNET Conference in New Delhi celebrated the contributions of this great scholar to the study of South Asian Comparative Laws and Social Change. An internet search under ‘Duncan Derrett’ yields enormous evidence of the continuing impact of this true polymath and his wide-ranging scholarship. His memory and his work live on. May his fine soul rest in peace.