Husband and Wife

(By V.K. Babu Prakash, Chief Judicial Magistrate, Pathanamthitta)

The mediation center was crowded as usual. Litigants from all walks were thronging the center. Before me, came a husband and wife. The kind of matrimonial dichotomy which at last landed in the family court in the form of a litigation came on a referral for mediation. The husband is tall, agile, well educated and besides holding a top post in a multi national company. He is around 50. The wife on the other hand is medium built, not so beautiful, not so educated and modern and above all a house wife. She is around 45. Their only son is well placed. From the beginning of the session, I made out the husband articulate, dominating, egoistic and above all powerfully chauvinistic. The woman a timid, soft spoken and mostly obedient village folk. There is visible subjugation by the husband of the wife. The long course of mediation process portrayed that the husband is over ambitious to have a wife on equal par with him on standard, perception, intellect and out look. It seems he wanted an ultra modern forward looking woman than a traditional, god fearing village folk of the kind his present wife belongs. The wife on the other hand much adores and respects him who dutifully does all sorts of her domestic affairs with utmost devotion. She cooks food, washes clothes, looks after the affairs of her husband and son impeccably. The husband although does not complain about the dutifulness of the wife, but still, is not satisfied with her personality. There started the trouble. The marriage which began on cloud nine reached at sixes and sevens. The husband although not physically abused the wife, as his position and status desists him from doing such ventures, nevertheless, he insults her, ridicules her and sarcastically throws tantrums at her for anything and everything. The continuous harassment created a low ebb of estimation by the wife on her self and personality. It essentially deteriorated her personal confidence, ability to articulate as well present herself before others. To say the less, she is suffering like a parrot in a golden cage from the scorn of her towering husband.

In the process of mediation, I tried my level best to penetrate deep into the mind of the man to find out, whether, he keeps any extra marital affair with any one which resulted in depleting his interest and estimation on his wife. I could not find out any such trait, as the man is more cleverer than me in hiding such secrets. He pretends no problems in the marriage and boasts of himself and his achievements and eventually turns the finger on the wife for the break down as her faulty perception due to personality dwarfness. On the other hand , wife is more dedicated, loving, respectful and fearful of the husband who only wanted an affectionate consideration and recognition from the husband. Indeed, she does not doubt his fidelity at all. And, at the end of the mediation, although a settlement is arrived at, whereby, both husband and wife walk away to home with a redress of their dispute, a disturbing question mark was paining my conscience. Will that dominating husband who lives by his ego ever understand the dedicated service of that loving wife ? Did he ever love her at all ? Will he show any consideration or affection to her at all even after the settlement ? The lady would be more dutiful and dedicated to him as according to her the dispute is amicably settled. A passing thought came in my mind, whether the cause of the dispute is settled or only its peripheral consequence ? Wonderful and strange is the human mind and its behavior.

Protection of Wetland Ecosystems -- Need for a Comprehensive Law

(By M.J. Induja, Advocate, High Court of Kerala)

A recent survey carried out by Centre for Water Resources Development and Management (CWRDM), Centre for Earth Sciences Studies (CESS), Kerala Forest Research Institute (KFRI) in Kerala found various wetland ecosystems in the form of backwater, mangroves and marshes under the verge of extinction. The study also revealed that the wetlands face threats such as water pollution, dwindling fish population, weed infestation and disappearance of mangroves. Though, wetlands are fallaciously assumed as large wet, marshy, waste-land; they form an integral part of our ecosystem and its preservation is essential for the sustainability of mankind itself.

Wetlands which are transitional habitats between dry land and deep water bodies, includes marine and coastal wetlands, inland and man-made wetlands. Estuaries, swamps, bogs, marshes, billabongs, mangroves, coastal fresh water lagoons etc., are the various types of wetland and form about 6% of the geography of earth and its extent is shrinking at an alarming rate. Termed as the unseen storehouse of nature’s bounty, these distinct ecosystems act as regulators, ground water chargers and reservoirs for rivers. It plays a pivotal role in the natural water-cycle system-cleansing and purifying water, as it passes through them and naturally treats the waste water. Estuarine wetlands which are found where rivers start to join the sea, the marshes etc., helps to lower the speed of water-flow from streams to rivers to sea, and by adjusting the tides of water, they help in stabilizing the land along the coast and margins of backwaters. The removal of these vast wetlands would result in flooding of the surrounding areas and soil erosion.

Wetland conversion mainly occurs due to the lack of awareness on the natural role and significance of the functions performed by wetlands. For instance, Cochin backwaters, once a lush wetland, now stands substantially reclaimed due to the developmental activities. Various studies by the Ministry of Environment and Forest, have shown that destruction of wetland ecosystems occur due to conversion of wetlands into vast agricultural farms, human settlements, urbanisation, deforestation, inundation by dam reservoirs, ground water depletion, degradation in water quality, pollution, commercialised aquaculture etc.

Law,  Treaties,  conventions  for  the  protection  of  wetlands

Internationally, the “Ramsar Convention” - an independent intergovernmental treaty is the legal instrument entered into for the preservation of the wetlands. It embodies the obligations of its member countries to maintain the ecological character of their Wetlands of International importance and to plan for the “wise use”, or sustainable use. 19 Wetlands from India have already found place in the internationally important list of Ramsar wetlands. Ashtamudi wetlands, Vembanad-kole backwaters and Sasthamkotta - Lake from Kerala finds place in the international list of important wetlands. Though India has about 15.260 m ha of wetlands, there is not yet a central legislation exclusively for the protection of wetlands in India. India being one of the 162 signatories acceding to the Ramsar is legally bound to conserve the wetlands in India.

Under Article 253 of our Indian Constitution, the Parliament has the legislative competence to make Legislation for giving effect to international agreements, treaties, or conventions with any other country or countries, or any decision made at any international conference, association or other body. The Supreme Court has also held that it is an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is void in the domestic law.” ((1997) 6 SCC 241).

Even in the absence of a specific enactment for the protection of wetlands, the courts have the power to act as saviours applying the public trust doctrine and various principles of economically sustainable development. When the environmental preservation is at stake, the courts ought to adopt precautionary approach. Whereever there is a threat of irreversible environmental damage, the precautionary principle can be applied. The “Precautionary Principle” makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. In M.C. Mehta v. Kamal Nath ((1997) 1 SCC 388), the Supreme Court used the Public Trust Doctrine for the first time in India.  It was a case where, an influential hotel management encroached upon a fragile forest area and started excavation in the river basin in order to change the course of the river. Applying the principle of public trust doctrine, i.e., ‘the State is the trustee of all natural resources, which are by nature meant for public use and enjoyment’, the Apex Court held that in the absence of any legislation, the executing authority acting under public trust doctrine cannot abdicate the natural resources and convert them into private ownership or for commercial use. The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for public interest to encroach upon said resources.

To cater our efficient development and progress, we ought to have balanced socioeconomic and environmental needs. One of the keen principles of economically sustainable development, the Principle of Inter-generational disseminate the want of the present generation to ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations. We cannot neglect the environmental norms in the name of demand for land for expanded infrastructure, industrial agriculture practices.

In Godavaraman’s case ((2006) 5 SCC 47), the Apex Court while prohibiting formation of any commercialised aquaculture in the protected Kolleru Lake (a wetland ecosystem named in Ramsar list) held that traditional methods of agrarian activities have to be permitted, without causing environmental hazards. The court also ordered to demolish the fish-bunds constructed illegally by encroachment of Kolleru Wild Life Sanctuary with immediate effect.

Even when there was no legislation to protect the wetlands, Indian judiciary has come out with appreciative decisions encouraging the preservation of wetlands. In People United for better living in Calcutta v. State of West Bengal (AIR 1993 Cal. 215), the Calcutta High Court dealt with the question that whether Eastern Kolkata wetlands can be transformed into agricultural lands or industrial sites. In this case, the proposal for the establishment of a World Trade centre, a development project by reclaiming 187.4 acres of wetlands was challenged. After weighing the opinions expressed by the environmentalists, the Hon'ble High Court of Calcutta held that wetlands act as a benefactor of the society and such encroachment thereof would be detrimental to the society which the Law Courts cannot permit.

State  Legislations-critical  analysis

The significant State legislations framed for the conservation and management of wetlands are The East Kolkata Wetlands (Conservation and Management) Act, 2006 and The Kerala Conservation of Paddy Land and Wetland Act, 2008.

The East Kolkata Wetlands (Conservation and Management) Act, 2006 was framed for the protection of East Kolkata wetlands based on the Calcutta High Court’s landmark decision in People United for better living in Calcutta v. State of West Bengal. Under the Act, the State Government has formed an autonomous authority called the East Kolkata Wetlands Management authority and its members include the secretaries of various departments like urban development, irrigation, forest, municipal affairs, panchayat, land reforms, urban development, pollution control board etc., headed by the chief Secretary of West Bengal Government. The power to demarcate the boundaries of the wetlands and to take necessary measures to stop, undo and prevent any unauthorised development project or use in the east Kolkata wetlands and to take action, to implement policies for protecting wetlands and to abate pollution and in conserving the flora, fauna and biodiversity of the same are vested in the EKW management. Another major function of the ought to have provided a cluster of members including scientific researchers, ecologists, members from different government departments, environmentalists etc., for the effective functioning of these committees, since the Act gives the monitoring committees power to prepare the detailed guidelines for the protection of wetlands and paddy lands. The implementation of such guidelines is another issue which the Act does not discuss at all. Also the Act does not give a remedy for hearing the persons aggrieved by the inclusion or non-inclusion of any certain area in data-bank and adjudicating on the same.

Penalty is prescribed under the Act, for conversion or reclamation of notified wetland, yet there is no provision for restoration of converted wetland into its original position under this Act, unlike in the case of paddy lands. The Kerala Conservation of Paddy Land And wetland (Amendment) Bill, 2011 purports to amend the Section 13 so as to bring restoration of Wetland within the power of District Collector. The restoration of any converted wetland ought to be exclusively included in the Act. Once reclaimed, the restoration of wetland to its position is a difficult process, requiring the assistance of scientists and wetland specialists. The Act ought to provide for such assistance for reconversion of reclaimed wetlands. Though the Act provides for incentives for paddy cultivation, no incentives are provided for wetland cultivation and preserving them.

The power under this Act is concentrated in the revenue authorities and village officers which would adversely affect the implementation of its objects. And the involvement of different committees would involve lack of consensus in policy decisions. Ultimately, the State Government has the power to exempt any land from the provisions of this Act in the name of public purpose. Since wetland conservation requires collective collaboration from different departments like fisheries, irrigation, forest, revenue and land authorities etc., the Act ought to have provided for an autonomous authority to inspect the activities of wetland conservation similar to Eastern Kolkata Wetland authority.

Proposed amendments : In spite of being a weak Act, Kerala Conservation of Paddy Land and Wetland Act, 2008 could instigate some fear in the minds of corporate land developers. The Act brought in, the hope of curbing the illegal filling up of wetlands and paddy lands. Since the data bank was not timely prepared, the Act itself was not fully implemented. Now it is understood that the various departments of the State Government are keen to amend the Act in order to facilitate the reclamation of land in the name of infrastructure and development activities. Once the proposed amendments are brought about, the total ban on land reclamation will elapse and the same would ensure that wetlands and paddy fields can be converted into industrial zones and township projects as per the policy decisions of the Government. The proposed amendment would have the serious effect of land filling of any land covered under the Act at the whims of the State authority is to promote sewage fed pisiculture which is peculiar to the Eastern Kolkata wetland and for conducting eco-tourism. The functions of the authority also include updating the land use maps of the entire wetland areas and to prepare action plans in conformation with Ramsar convention guidelines. The Act also gives the State Government power to enlarge the area of wetlands if found necessary in public interest.

Under the Act, failure to comply with or contravention of any provisions is a cognizable and non-bailable offence punishable upto 3 years of imprisonment or a fine upto Rs. one lakh or both. Further condition of any such contravention of provisions would attract additional fine of Rs. 5000/- per day. The Act also makes any company along with every person in charge of the conduct of its business liable for any contravention of its provisions. It curbs well the activity of the private land development and construction activity in the wetland area. Another striking provision is the disciplinary proceedings as well as penalties imposed upon the officers of the State Government or local bodies, for any acts permitted or wilfully neglected or failed to do, and resulted in any offence under the Act. The EWK authority has been functioning successfully fighting against the filling up of the wetland.

Protection of Wetlands under the Kerala Conservation of Paddy Land and Wetland Act, 2008: It is noteworthy that Kerala which has much lesser extent of wetland area compared to other Indian States, has enacted ‘The Kerala Conservation of Paddy Land and Wetland Act, 2008’. However, the Act is too fallible and vague on the conservation of wetlands. As per the Kerala Act, the fresh water bodies are excluded from the purview of wetland.

Under the Act, there is total prohibition on reclamation on the wetlands of the State, and prohibition of removal of sand from thereon except for the removal of slurry and mud to maintain the ecological condition of such wetland. But the said provision is hardly implemental since the databank containing the list of paddy fields and wetlands as per Rule 4(2)(b) of Kerala Conservation of Paddy Land and Wetland Rules has not been notified in most of the Panchayats, Municipalities and Corporations so far. The data bank was to be notified within three months from the date of notification of Kerala Conservation of Paddy land and Wetland Rules, 2008. The Kerala Act also does not have any provision for regular updation of the data bank prepared. Lack of regular monitoring would affect the effective implementation of any wetland policies.

The local level monitoring committee which is the primary authority under the Act consists of President/Mayor of the concerned Panchayat or Municipality, Agricultural Officer, Village Officer and three representative farmers nominated from the area. The Act directly in contradiction to the objectives of the Act. Evidently, the development of industry is essential for the economy of the country. But the purpose of public need is questionable with the new projects like private international airport at Aranmula when a small State like Kerala already has four international airports. Rather than allowing large scale conversion flouting the environmental rules and regulations, it is necessary to strike balance between the necessity to preserve the environment on the one hand and the pressing need for the industrialization of a backward status of the society.

Need  for  a  comprehensive  legislation

The faster economic development has resulted in losing our sight on how important the preservation and the wise-use of our natural resources are. It is sad to note that in the name of public purpose, the wetland ecosystems are being destroyed, which cannot be regenerated. In India, wetlands jurisdiction is diffused and falls under various departments like agriculture, fisheries, irrigation, revenue, tourism, water resources and local bodies. The lack of a comprehensive wetland policy, with each department having its own developmental priorities, works against the interests of conservation of wetlands.

For the effective protection of wetlands, there should be specific schemes for providing awareness programmes, regular updation policies of wetland area and re-introduction of the traditional agricultural, pisiculture reforms and awareness on significance of eco-tourism. Further, the classification of any wetland area as protected area would enable an easier preservation of the same. For example, an attempt has been made to classify and protect a mangrove wetland in the heart of the Cochin city- Mangalavanam, and is under the conservation program of Peechi Wildlife Sanctuary and similar successful efforts can be made.

Thus, a comprehensive central enactment which accounts for regular monitoring of the wetlands, ensuring on socio-economic aspects, livelihoods of people dependent on particular resources/wetlands, giving importance to public awareness programs and restoration of reclaimed wetlands can only clear the clouds assimilating the area of law on wetlands and can achieve their wise use and preservation.

Court's Power to Suspend Sentence Vis-a-Vis Section 32A of N.D.P.S. Act 

(By V.K. Sathyavan Nair, Advocate)

This clarificatory Note is necessitated by some instances of omission to bring to the notice of the court, the correct legal position laid down by the Supreme Court regarding the Constitutional validity of Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1935, resulting to disinclination of the court to invoke the jurisdiction under Section 389 of the Code of Criminal Procedure to suspend the sentence of a person convicted under the NDPS Act.

The short question is whether Section 32A of the NDPS Act has taken away the right of the court to suspend the sentence of a convict in cases under that Act and is there a total blanket ban?

Section 32A of the N.D.P.S. Act reads: 

“Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law, for the time being in force but subject to the provision of Section 33, no sentence awarded under this Act, (other than Section 27) shall be suspended or remitted or commuted.”

Section 27 of the Act which prescribes the punishment for consumption of any narcotic drug or psychotropic substance is an exception to Section 32A. Section 33 referred to in S.32A deals with the applicability of Section 360 of the Code of Criminal Procedure, as well as Probation of Offenders Act. S.32A is unambigous and clear and there can be no doubt that the total blanket ban enfolds within its grip even the powers of the court to suspend sentence under Section 389 of the Code of Criminal Procedure in the case of a person convicted under the N.D.P.S. Act except under Section 27.

The next question is whether the legislative mandate under Section 32A of N.D.P.S. Act suffers from arbitrariness and whether it offends the mandate of Article 14 of the Constitution.

There are conflicting judgments of the High Courts on the question of Constitutional validity of Section 32A of the N.D.P.S. Act. The plea in favour of the total ban is that prisoners convicted under the N.D.P.S. Act are a class by themselves and the nefarious illegal activities connected with drug trafficking have to be curbed deterrently and there is a reasonable distinction between a prisoner convicted under Narcotics Act and a prisoner convicted for any other offence. The argument is plausible, but the Allahabad High Court in Ram Charan’s case found that Section 32A suffers from arbitrariness and thus violative of the mandate of Articles 14 and 21 of the Constitution.

In Maktoo Singh v. State of Punjab (AIR 1999 SC 1131) the Supreme Court held that Section 32A would have an overriding effect with regard to the powers of suspension, remission and commutation.

In Dadu alias Thulasidas etc. v. State of Maharashtra (AIR 2000 SC 3203) the petitioner in the Writ Petition who is undergoing sentence of imprisonment approached the Supreme Court challenging the constitutional validity of S.32A as he could not claim parole presumably under the impression that the said section is a bar for the State to grant it. The Supreme Court held that parole means the release of a prisoner temporarily for a specific purpose before the expiry of the sentence and it does not amount to suspension, remission or commutation of sentence. Then the question of ouster of jurisdiction of the court under Section 339 Cr. P.C. and the Constitutional validity of Section 32A of N.D.P.S. Act has been elaborately discussed and the court held that Section 32A of N.D.P.S. Act is not Constitutional to the extent it takes away the right of the court to suspend the sentence of a convict. It has also been made specific by the court that the sentence can be suspended only and strictly subject to the conditions spelt out in Section 37 of the N.D.P.S. Act. Though the verdict specifically refers to the Appellate Court only the law declared by the Supreme Court is binding on all courts and it is applicable with equal force to court by which the accused is convicted exercising powers under Section 389(3) Cr. P.C. to suspend the sentence pending presentation of appeal. The Supreme court also found that there is no vice of unconstitutionality in Section 32A in so far as it takes away the powers of the Executive conferred upon it under Ss.432 and 433 of the Code of Criminal Procedure.

The law explicitly declared by the Supreme Court in Dadu’s case(supra) admits of no doubt and the court can exercise powers under S.389 of the Code of Criminal Procedure to suspend the sentence of a convict in N.D.P.S. case pending appeal or pending presentation of appeal subject to the limitations prescribed under S. 37 of the N.D.P.S. Act.

Sri. T.P. Kelu Nambiar (Senior Advocate) : A Karma Yogi Lawyer

(By G. Krishna Kumar, Advocate, Ernakulam)

“Swe swe karmanyabhiratha Ha               tkz tkz IÀ½Wy`ncXx

Samsidhim labhathe Nara Ha”                  kwkn²nw em`tX \cx

(Devoted to his duty, man attains perfection.)

                                                                                                   - The Bhagavad Geeta, 18:45

Sri. T. P. Kelu Nambiar (Senior Advocate) was a friend, Philosopher and Guide of both the Bar and the Bench. As a lawyer, he was having impeccable integrity, indefeasible devoutness and he was a power house of knowledge. He, an excellent orator and senior friend of the Bar, was a multifaceted personality who excelled as a lawyer, author and teacher.

His courage and leadership qualities were inimitable. His command over English language was enviable. Once an English Professor admirably told me about the command of Sri.Kelu Nambiar over English language.

He advised junior members of the Bar “....A lawyer is not a bezonian. A lawyer’s loyalty is to the law; and by worshipping law, chanting law and meditating on law, he becomes a true lawyer.(Nambiar’s Third Miscellany - Page 15.)”

He was much concerned about the attitude of shutting down arguments, the life blood of advocacy, which reflected in the article ‘Heard Both Sides’(2003 (3) KLT Journal 33.). According to him, “Advocacy is the armor of a lawyer...”. He wrote “Lawyers should be earnest to plead for their clients; not to please the judges..”(‘Obituary; Advocacy’ - 2007 (3) KLT Journal 33.)

Speech delivered by Sri. Nambiar in the retirement speech of Justice Chandrasekhara Menon is a testimonial of his oratory skill with apt quotations. The said speech describes the qualities of Justice Chandrasekhara Menon who had adorned all the qualities and virtues to be adorned by Judges. Sri Nambiar Spoke “...your Lordship knew that judges should not behave like the irritable sage Durvasa and that a person occupying a prestigious, influential and powerful post should never lose his head and show dignified unconcern.... “(Nambiar’s Miscellany – Page 33.)

He was very proud of being a lawyer which reflected in his articles ‘The Importance of being a lawyer’. In the speech delivered on the occasion of enrollment of advocates, he expressed his affection to the profession in these words “At the end of the day, I should think that the legal profession is a great, glorious, noble profession. And, if there is a rebirth for me, and if am asked what type of birth I would like to take next, my answer would be I wish to be reborn a lawyer only.” (Nambiar’s Third Miscellany - Page 172.)

When the dictum laid down in Kalyani v. Kalyani (1969 KLT 362) was impliedly overruled by Kochouseph v. Joseph (1976 KLT 512) he wrote an article “Obituary: Kallyani  (1976 KLT Journal 51.). The caption of the said article itself conveyed the idea and attracted the readers to its contents. That was the articulation skill of Sri. Nambiar. He was always champion crusader of independent Bar. In his speech rendered in connection with the Platinum Jubilee of the Quilon Bar Association, 1983 he spoke “It is the duty of the lawyers, to give voice to silences, clarification to ambiguities and content to omissions. It is better to create than to be learned. Our opportunities to do good are our talent. Vigilance, tact, daring, force, persistence -these are the material virtues which must command success “ (Nambiar Miscellany -Page 134.)

In his article, the ‘Lawyer in the making’ he advised new entrants of the Bar “...while acting before a court, an Advocate shall conduct himself with dignity and self respect. He shall not be servile, but all the same, he shall maintain towards court a respectful attitude, bearing in mind that the dignity of the judicial office is essential for survival of the community” (Nambiar Miscellany - Page 107.)

When a practicing lawyer is being elevated as Judge, advice given  (“Q” Document of advice 2008 (1) KLT Journal 25) by Sri.Nambiar to the judge elevated shows the philosopher and guide in Sri.Nambiar.

He was also a munificent personality who kept aloof from publicity. The entire paraphernalia and furnishing of Senior Advocates Room in the Kerala High Court were sponsored by Sri. Nambiar in memory of his senior and father-in-law Sri Ayilyath Achuthan Nambiar. Books donated to the Kerala High Court Advocate’s Association for it’s Library shows his concern to the members of the Bar. As a lover of music and arts, he was the person who sponsored and revamped ‘Raganeethi’ a wing of ‘artists and musicians’ of the members of Kerala High Court Advocate’s Association.

His eminence and reputation will be cherished by all who knew him and those who will know him through law exposed by him as reflected in the law journals and his treaties.

Lend your ears when you are in crisis and standing in the corridors of the High Court, you can hear the whispering wisdom from the qualified soul.

It would be adventurous if an attempt is made to elucidate the towering qualities of Sri. Nambiar in two or three pages. This venture is only an attempt to refresh the memories of Nambiar within us.

Anayasena maranam                                   A\mtbtk\ acWw

Vina dainyena jeevanam                            hn\m ssZt\y\ Poh\w

Dehime kripaya shambo                      tZlnta Ir]bm iwt`m

Twayi bhaktim achanchala                        Xzbn `ànw AN©emw.

Lord almighty had always bestowed good health and peaceful life in his life time. Lord almighty was equally benevolent in providing a world hereafter rewarding him a smooth journey from worldly to heavenly abode.