Wednesbury Principle v. Theory of Proportionality

(By V.K. Babu Prakash, Addl.District Judge,Thalassery)

Judicial review is the hall mark of a civilized society ruled by law. When the decision of a statutory or public body is challenged before the court of law alleging arbitrariness, illegality or capriciousness, the court has to look into three aspects to see whether the decision of the public body is reasonable or not. Those are:

1. In making the decision, the public body took into consideration facts which it ought not have taken into consideration.

2. It failed to take into consideration facts it ought to have taken into consideration.

3. The decision is otherwise unreasonable that no reasonable authority or prudent man would not have taken.

The principle is called Wednesbury Principle of unreasonableness. It arose out of an English decision illustriously known as Associated Provincial Picture Houses Limited  v. Wednesbury Corporation (1947 (1) KB 223). The plaintiff, Associated Provincial Picture House was granted a license by the Wednesbury Corporation, the local authority of the market town of Wednesbury in Staffordshire in England. The license was for operating a cinema. It contained a condition that the film shall not be exhibited to children less than 15 years old. The licensee, Associated Provincial Picture House challenged the condition before the court of law in England.  The principle formulated  in the decision became  the famous Wednesbury Principle which is even now followed in various countries including India. Lord Green, the Master of Rolls who wrote the Judgment held as follows:

“The public body or authority has the discretion to impose conditions. But the discretion must be exercised reasonably.  Now what does that mean.  Lawyers familiar with the phraseology commonly used in relation to  exercise  of  statutory  discretion  often  use  the  word unreasonable in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his attention to the matters which he is bound to consider.  He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said and often is said, to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the power of the authority.”

The present scenario after the verdict in Wednesbury case is that modern Government and public body demands wide discretionary powers as the functioning of the Government and public body is numerous in nature.  If each and every decision is scrutinized on the touch stone of Wednesbury unreasonableness, the public body and Government cannot exercise its discretion. However, the moot point is the recognition that all powers have legal limits.  The next foremost concept is that when the public body’s discretionary decision is challenged, the courts should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection. At times, the statute may require the authority to act reasonably. Courts have also held that the authority should consider the question fairly and reasonably before taking action. If the authority has acted mala fide or improperly then it pales into the realm of unreasonableness. Unreasonableness may furnish a ground for intervention by the courts when the Constitution of India or statute so requires. Article 14 of Indian Constitution guarantees equality before the law. Similarly Article 19 requires only reasonable restrictions to be imposed on the rights specified therein. In Maneka Gandhi v. Union of India ((1978) 1 SCC 248) it was held that an order made under Section 10(3)( c) of the Passport Act, the power of impounding of passport, could be declared to be bad under Clauses 1(a) and (g) of Article 19 as it was drastic in nature, so that it imposes an unreasonable restriction on the citizen’s freedom of mobility.

The principle of Wednesbury reasonableness has become one of the most active and conspicuous doctrines which have vitalized administrative decision in recent years. Now a days, another trend has set in which wanted to water down the rigor of Wednesbury reasonableness. It is spreading that Wednesbury doctrine is now in terminal decline and it is being displaced by the theory of proportionality. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the court is not much concerned of the merits of the decision but how the decision was reached. The basis of judicial review could be highlighted under three principal counts namely illegality, procedural impropriety and irrationality. This is the essence of Wednesbury principle. Nevertheless, the theory of proportionality propounds that when the court is called upon to exercise judicial review on a decision of public body, the court has to assess the balance which the decision maker has struck, not merely whether it is within the range of rationality or reasonableness.

Supreme Court of India has accepted and acted upon Wednesbury Principle in a galaxy of decisions. It is profitable to pass through AIR 1965 SC 484, AIR 1967 SC 295, (1978) 1 SCC 248, (1980) 4 SCC 544. For avoiding prolixity the observations of the Apex Court in those decisions are not reproduced. In State of U.P. v. Sheo Shanker Lai Srivastva & Ors. (2006)  3 SCC 276, the Supreme Court held that Wednesbury Principle may not now be held to be applicable in view of the development of constitutional and other laws. Supreme Court further stated that the theory of proportionality is gaining ground over Wednesbury doctrine. In another important decision, State of Madya Pradesh & Ors. v. Hazania (2008) 3 SCC 273) Supreme Court held that the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality.

However, the fact is that Wednesbury doctrine cannot be completely over thrown at all. Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at. Proportionality as a legal test is capable of being more precise and fastidious than reasonableness test as well as requiring a more intrusive review of a decision made by the public body which requires the court to assess the balance of equation struck by the decision maker. Proportionality test in some jurisdiction is also called as the least injurious means or minimal impairment test so as to safe guard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest.  Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury doctrine has met with its death knell is too premature. Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the realm and course of action which could be reasonably followed. Proportionality is more concerned with the aim and intention of the decision maker and whether the decision maker has achieved more or less the correct balance or level playing field. Thus to cut a long story short, court has to strike a balance between the reasonableness of the action of the public body with the aim and purpose it wanted to achieve. Thus the ancient Wednesbury doctrine has not become archaic and obsolete but is developed into a sphere where theory of proportionality also goes hand in hand. After all, judicial review does not mean the mechanical process of the functioning of a switched on automaton, but is the application of the mind of a human judge looking at a set of things to see whether those are suffering from illegality, irrationality and unreasonableness. It is nothing but a process of social engineering. The guidelines that are submerged in the Wednesbury Principle and the theory of proportionality with the practical wisdom of the seasoned judge would , by and large, shed light on the decision of the statutory or public body under Judicial review.

Where There is A Right There is A Remedy, 

But Delayed Justice is Denied Justice

(By T.S. Murali, Ottapalam, Palakkad)

The House of Commons in Great Britain witnessed an interesting event in the 18th century when Chief Justice Holt in his judgment ‘Ashby v. White’ observed ‘Lex semper dabit remedium’ which has become a well accepted principle of law. If a man has a right, he must have a means to vindicate and maintain it and a remedy if he is injured in exercise and enjoyment of it. It will be unfruitful to have a right without a remedy since want of right and want of remedy are reciprocal. In the above case, Matthew Ashby, a cobbler who turned up to cast his vote for the British Parliament in December, 1701 was turned away by William White, a police constable on the ground that he was not a settled inhabitant of the borough (a small town) and had never contributed either to the Church or to the poor. Ashby filed a suit against White and his learned counsel argued that his client’s right to vote was supreme, but was prevented from doing so by the defendant police constable. White’s learned counsel argued that since the plaintiff Ashby’s candidate had won the election, he did not loose anything. After hearing both sides, it was held by Justice Holt that by preventing Ashby from voting, the defendant White violated the plaintiffs legal right and hence Ashby was entitled to damages.

Justice John Salmond has observed, “a right is any interest, respect for which is a duty and the disregard of which is a wrong”. According to Austin, liberty is illusory if it is not protected by law and if law protects it, it amounts to a right. Rights refer to those things which others ought to do for us and liberties refer to those things which we do for ourselves. The above principle of law could not be enforced by an unfortunate landlord in an execution petition filed under Section 14 of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking recovery of arrears of rent per se, as it was held not to be maintainable. (Pocker v. Raveendran (2010 (3) KLT 817). Earlier, a Rent Control Petition was filed for eviction and eviction was ordered. The tenant vacated the premises but without payment of rent arrears. The landlord filed an execution petition for recovery of rent arrears but it was dismissed holding that an execution petition seeking arrears of rent is not maintainable under the Act. A Writ Petition filed by the landlord under Article 227 before the Hon’ble High Court was also dismissed holding that there is no scope for passing a money decree for recovery of arrears of rent after eviction under the above Act. The landlord had a cause of action being the arrears of rent or fixation of fair rent and later its recovery from the tenant, but the landlord’s right to judicial redress or relief was rejected, since the tenant lost his tenancy status due to eviction or vacated the premises on his own without payment of rent arrears.

Orders which are executable by the Principal Munsiff of the Station by virtue of Section 14 are eviction orders under Section 11, summary orders of eviction under Section 12, orders passed by the Accommodation Controller under Section 13, orders awarding cost under Section 19, orders directing restoration of/re-induction into possession under Section 33, appellate orders under Section 18 and revisional orders under Section 20. The Rent Control Law does not have a provision whereby rent arrears during the tenanted period which becomes a money decree after the surrender of possession of the tenanted premises by the tenant can be executed.The only option available to the landlord after the tenant vacates the premises is to file a suit before the appropriate court (Munsiff or Sub-Court) for recovery of the rent arrears. Lack of proper legislation leads to multiplicity of proceedings. Avoidance of recurrence of litigation between the same parties on the same issue must certainly be a laudable object. There should be no need for the landlord to approach a different forum for the same cause. For many landlords who make a living out of the rental income, it makes justice through litigation inordinately dilatory and costly and the legislature does not consider the hardships a landlord has to face going through the same issue endlessly. The only solace for the landlord is that where Section 1 l (2)(b) of the Rent Control Act specifies for 6% interest for arrears of rent, in a suit for realisation of rent arrears, the plaintiff landlord can claim for interest at reasonable rates according to the respective nature of use of the building by the tenant as commercial or residential. With regard to the rate of interest on the claim of money due as rent arrears in civil suits, Section 34 of the C.P.C can be prevailed.

Greek philosopher Plato once said, ‘to do injustice is more disgraceful than to suffer it’. However, justice cannot be accomplished without an orderly system of law. The ultimate goal of the legislature and judiciary is to serve the people upholding the letter and spirit of the Constitution. These goals include protection of the life, liberty, property of the people and all the rights which the Constitution of India and laws of the land grant and guarantee. It is the trust and confidence of people in the responsiveness and the ability of every organ of the State to deliver true, fearless and impartial justice which is the foundation of democracy and the bedrock of every civilized society. But, governmental indifference in enacting proper law or amendment of law leads to delay in administration of justice.

In Kolappan Achari v. Haneefa (1979 KLT 674), the Hon’ble High Court observed that, “we hear a good deal now about law’s delays and about delayed justice. It will be useful for those in charge of legislation to consider whether the present procedure could not be made much easier”. According to Lord Wright, “it is not the business of a court to fill up the gaps in a Statute. That is the function of the legislature. It may be that there is a casus omissus, but if so, that omission can only be supplied by a statutory action. The court cannot put into the Act, words which are not expressed and which cannot reasonably be implied on any recognized principles of construction”.

It has been held in Joy v. Jacob (1984 KLT 72), that the Rent Control Act is a self contained statute and the rights and liabilities of the landlord and tenant are to be governed by the provisions of the Act and not by the provisions of the Transfer of Property Act or any other law. The authorities under the Rent Control Act while deciding cases are to be governed by the principles of justice, equity and good conscience as provided in Rule 11(8) of the Kerala Buildings (Lease and Rent Control) Rules, 1979. There is no need for a landlord or a tenant to approach a different court other than the Rent Control Court to safeguard their rights. Hence, some of the outdated provisions in the Act need immediate amendment. It is indeed unfortunate, time consuming and expensive, if the landlord has to initiate a civil suit immediately after the close of the Rent Control Petition for recovery of rent arrears, if the tenant surrenders the building after the eviction order, but without payment of rent arrears.

A Critique to Valsala : 2012 (4) KLT 760

 (By S.R.K.Prathap, Advocate, High Court of Kerala, Ernakulam)

1. Introduction

Registration of F.I.R. under section 154 ₁ of the Criminal Procedure Code, on a complaint revealing no cognizable offence will have serious consequence on the personal life, liberty and dignity of the citizens of the State. The proposition of law declared in Valsala (Valsala v. State of Kerala - 2012 (4) KLT 760) confers wide powers on the police to register an F.I.R. even in case, no cognizable offence is revealed in the complaint/F.I. Statement. The registration of First Information Report on receipt of a complaint revealing cognizable offence without preliminary investigation and application of mind into the correctness of the allegation itself was held not good by the Honourable Supreme Court in a number of decisions. It is mostly for the reason that a person, who is named in an F.I.R. as an accused, suffers social stigma. If an innocent person is falsely implicated, he suffers not only from loss of reputation but also mental tension and his personal liberty gets seriously impaired. After Maneka Gandhi’s case ((1978)1 SCC 248.), the proposition that the law which deprives a person of his personal liberty must be reasonable, both from the stand point of substantive aspect as well as procedural aspect is now firmly established in our constitutional law. For registering an F.I.R., the complaint should disclose a cognizable offence as per the procedure prescribed in section 154 of the Criminal Procedure Code and as has been held in catena of decisions of the Superior courts (Manoj v.State of Madhya Pradesh(1999) 3 SCC 715),Abzauddin Ansary v. State of West Bengal ((1997) 2 Crimes 53(Cal.) (D.B.)).).Therefore Section 154 Cr.P.C. has to be read in conformity with constitutional principles and dilution of section 154 Cr.P.C. may result in deprivation of constitutional rights. In construing a statutory provision, the first and the foremost rule of construction is the literal interpretation. If the provision is unambiguous and the legislative intent is clear, the courts need not go into other rules for interpretation of statutes ((1973)1 SCC 212, para 22). On this backdrop the correctness of the above decision need to be looked into.

2.   Evaluation of judicial decisions on the need to disclose cognizable offence for Registering F.I.R..

The need to disclose a cognizable offence for registration of F.I.R. has been unequivocally and consistently been maintained by the Honourable Supreme Court. In Ramesh Kumari v. State(2007 (3) KLT 1028 (SC) = (2006) 2 SCC 677) the Honourable Supreme Court had held that “whenever cognizable offence is disclosed the police officials are bound to register the same and in case it is not done, directions to register the same can be given.” Similarly in Aleque Padamsee v.Union of India(2007 6 scc 171), while dealing with inaction of the SHO to register an F.I.R. Honourable Supreme Court held that “whenever any information is received by the police about the alleged commission of offence which is a cognizable one, there is a duty to register the F.I.R.” In Damodar v. State of Rajastan ((2004)12 SCC 336.) it was observed as follows." In order to constitute an F.I.R. the information must reveal commission of act which is a cognizable offence.”Though the interpretation of section 154 was not directly in issue, the Honourable Supreme Court in Binay Kumar Singh v. State of Bihar ((1997)1SCC 283, para. 9.) held as follows: “ It is evidently a cryptic information and is hardly sufficient for discerning the commission of any cognizable offence there from. Under Section 154 of the Code, the information must unmistakably relate to the commission of a cognizable offence and it shall be reduced to writing (if given orally) and shall be signed by its maker.The next requirement is that the substance thereof shall be entered in a book kept in the police station in such form as the State Government has prescribed. First information report (F.I.R.) has to be prepared and it shall be forwarded to the magistrate who is empowered to take cognizance of such offence upon such report. The officer in charge of a police station is not obliged to prepare F.I.R. on any nebulous information received from somebody who does not disclose any authentic knowledge about commission of the cognizable offence. It is open to the officer-in-charge to collect more information containing details about the occurrence, if available, so that he can consider whether a cognizable offence has been committed warranting investigation thereto.” The same was followed in State of Haryana v. Bhajan Lal (1992 Supp(1)SCC 335, Para 33.) and inPrakash Singh Badal v. State of Punjab ((2007) 1 SCC 1). Here also need for revealing a cognizable offence has been reiterated. The immediate impact of registration of an F.I.R. on a citizen is the loss of reputation, impairment of personal liberty resulting in mental anguish and therefore the act of police officer in registering an F.I.R. must be informed by reason and it can be only where there is a prima facie case against the named accused. (2012 (1) KLT SN 129 (C. No. 139) SC = (2012) 4 SCC 1, para 61.)

3. Need for preliminary investigation on disclosing a cognizable offence

Even the right of the Police to register an F.I.R. based on a complaint disclosing the cognizable offence is under Judicial Scrutiny. The question under scrutiny is whether police officer can exercise any discretion to refuse registration of F.I.R. or can resort to preliminary investigation to find out, the first information sought to be registered had any substance or not. The Honourable Supreme Court in Rajinder Singh Katoch v. Chandigarh Admn(2007 (4) KLT 877 (SC) = (2007)10 SCC 69.) after taking note of Ramesh Kumari (2006 (2) KLT 404 (SC) = (2006) SCC 677.) held that “ We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi) wherein such a statutory duty has been found in the police officer. But, as indicated hereinbefore, in an appropriate case, the police officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not.” In a case, where a compliant revealing cognizable offence has been filed with ulterior motive, the Honourable Supreme Court has justified a preliminary investigation before registering an F.I.R..The Honourable Supreme Court has spoken about need for preliminary investigation before registering an F.I.R., where a public servant is charged with acts of dishonesty amounting to serious misdemeanour (AIR 1964 SC 221, (1970) 1 SCC 595.).Presently arguments are coming up that the directions empowering the registration of F.I.R. on disclosing the cognizable offence itself is without considering the impact of Article 21 on Section 154 of Cr.P.C. After Menaka Gandhi case((1978) 1 SCC 248.) the Honourable Supreme Court has applied Article 21 to several provisions relating to criminal law. It is also being argued that in the light of Article 21, provisions of Section 154 of Cr.P.C. must be read down to mean that before registering an F.I.R., the Station House Officer must have a prima facie satisfaction that there is commission of cognizable offence as registration of an F.I.R. leads to serious consequences for the person named as accused and for this purpose, the requirement of preliminary enquiry can be spelt out in Section 154 and can be said to be implicit within the provisions of Section 154 of Cr.P.C. The Honourable Supreme Court while considering Lalita Kumar v. State of U.P.(2012 (1) KLT SN 129 (C.No. 139) SC = (2012) 4 SCC 1.) referred the matter to a Constitution Bench considering the great public importance and the divergent opinions expressed in large number of decisions.

 4. Remedy when Police abuses powers vested under Section 154 Cr.P.C.

The registration of an F.I.R. under Section 154 of Cr.P.C. is an administrative act of a police officer. Every administrative act must be based on application of mind, scrutiny and verification of the facts. No administrative act can ever be a mechanical one. This is the requirement of rule of law. The scheme of the Act is that after the police officer records an F.I.R. under Section 154 Cr.P.C., he has to proceed to investigate under Section 156 Cr.P.C. and while investigating the police officer has power to arrest. What is required to be noted is that for the purpose of arresting the accused, the police officer must have a reasonable ground to believe that the accused is involved in the commission of a cognizable offence. If Sections 41 and 154 Cr.P.C. are read together, it is clear that before registering an F.I.R. under Section 154 the police officer must form an opinion based on the information disclosed that there is a prima facie case against the accused. If he does not form such an opinion based on materials disclosed and still proceeds to record an F.I.R., he would be guilty of an arbitrary action. The Article 21 requires that no one shall be deprived of his life and personal liberty except by procedure established by law and this procedure must be reasonable, fair and just. If the procedure is not reasonable, fair and just, the Court will immediately spring into action and run to the rescue of the citizen(Francis C. Mullin v, Administrator, Union Territory of Delhi(1981) 1 SCC 608 (paras 4 and 5).). The scope of interference has been a subject of judicial scrutiny and the Honourable Supreme Court issued detailed guidelines in the following cases. InR.P.Kapur v. State of Punjab (AIR 1960 SC 866 , Para 6.) the Honourable Court summarized some categories of cases where inherent power under Section 482 Cr.P.C. can and should be exercised to quash the proceedings.

i. Where it manifestly appears that there is a legal bar against the institution or continuance. Absence of requisite sanction may for instance furnish cases under this category.

ii. Where the allegation in the First Information Report or complaint taken at its face value and accepted in their entirely do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is matter merely looking at the complaint or the First Information Report to decide whether the offence is disclosed or not.

The Court further observed that in such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of criminal court to be issued against accused person. In State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335.) the Honourable Supreme Court illustrated the categories of cases to be interfered with under Section 482 after discussing catena of decisions on this point.

i. Where the allegation made in the F.I.R. or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.

ii. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

iii. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

iv. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a magistrate as contemplated under Section 155(2) of the Code.

v.    Where the allegation made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the accused.

vi.   Where there is express legal bar engrafted in any of the provisions of the Code or the act concerned to the institution and continuance of the proceedings.

vii.  Where is criminal proceedings is manifestly attended with mala fide and where the proceedings is maliciously instituted with an ulterior motive of wreaking vengeance on the accused and with a view to spite him due to private or personal grudge.

These are the land mark decisions along with hundreds of other judgments following the dictum laid down above(2010 (4) KLT SN 41(C.No.46) SC; 2011(2)KLT SN22(C.No.30)SC; 2011(2) KLT SN59(C.No.78) SC;           2011(2) KLT SN113(C.No.136) SC.). Justice Fazal Ali explained the position of law in Pratibha Rani v. Suraj Kumar ((1985) 2 SCC 370.) as follows : “It is well settled by long course of decisions of this court that for the purpose of exercising its power under Section 482 Criminal Procedure Code to quash a F.I.R. or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations”. In State of Bihar v. Murad Ali Khan (1988 (2) KLT SN 72 (C.No. 108) SC = (1988) 4 SCC 655.), Justice Venkatachaliah while reversing the judgment of the Honourable High Court speaking for the bench stated that the jurisdiction under Section 482 has to be exercised sparingly and with circumspection and in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegation in the complaint are likely to be established by evidence or not. In State of U.P. v. V.R.K. Srivasatava ((1989) 4 SCC 59.), the Honourable Supreme Court ruled that if the allegations made in the F.I.R. taken on the face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of

such F.I.R. should be quashed. The above judgments have been tagged to the show the consistent policy of the Superior Courts. In Renjith Abraham v. State of Kerala (2002 (2) KLT SN 92 (C.No. 109).), learned single Judge of this Honourable High Court held as follows. "On going through the allegations, if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, court will not be justified in quashing the proceedings. On the other hand, if the allegations do not constitute any offence as alleged, the court will have to quash the proceedings in order to prevent abuse of process of the court”. In a case where Magistrate took cognizance in a private compliant against Chairman and few senior officials of Mahararastra State Electricity Board under Section 406 I.P.C. for refusing to return the amount deposited by the complainants, the Honourable Supreme Court reversed the order of the High Court and quashed the criminal proceedings by holding that there is no pleading of personal entrustment against the person arrayed as accused and it was observed as follows "In the absence of any such specific averment demonstrating the role of the accused in the commission of the offence, we find it difficult to hold that the complaint, even ex facie, discloses the commission of an offence by the appellant under Section S. 409 I.P.C, punishable under S. 406 I.P.C (Asoke Basak v.. State of Maharashtra (SC) -- 2010 (4) KLT SN 41 (C.No. 46) SC = 2010-10-3,BCR(CRI)-2011-1-436). The judgments reiterate the principle that court can exercise its inherent jurisdiction of quashing criminal proceedings whenever allegation made in the F.I.R. do not constitute an offence. It is also being advised that the power under Section 482 has to be exercised with great care, reasonably and judiciously. This Hon'ble Court had on various occasions quashed F.I.R. and further proceedings on the ground that allegations even if taken at its face value and accepted in their entirely do not constitute the alleged offence. Reading of Valsala v.State of Kerala makes clear that the material relied on by the Sub Inspector of Police for registering F.I.R. has not revealed any criminal offence against the petitioner. It does not speak about any entrustment to the petitioner to attract Section 406 I.P.C. The appreciation of case diary by the Honourable Court does not indicate any preliminary investigation before registering F.I.R. against the Public Servant. Therefore, it appears that dictum laid down in Valsala is not in consonance with consistent view taken by the Honourable Supreme Court.

5. Conclusion

The analogy was drawn, placing registration of F.I.R. in case of loss of passport, credit card etc., with non-receipt of R.C. Book. It appears that certain crucial aspects were not brought to notice of the Honourable Court prompting the court to draw such an analogy inconsistent with procedures and practise being followed by the Station House Officers. I had the privilege to come across the procedure being adopted by the S.H.O.’S in case of loss of credit card, pass port etc. The police in the ordinary course will register F.I.R. only in case the complaint reveals some cognizable offence like theft or other penal offences. Otherwise, complaint will be entered into the petition register kept at the station and a receipt will be issued pointing out receipt of a petition on the subject. An inquiry will be conducted without F.I.R. and a report will be given to the petitioner if sought for. The police report thus issued will settle his grievances for the purpose of duplicate passport/credit card etc., in most of the cases.

Similarly, analogy drawn to classify registration of F.I.R. in man missing(Section 57 of the Police Act 2011 gives statutory recognition for registration of F.I.R. in man missing cases.), suicide and death under suspicious circumstances(Section 174 Cr.P.C. prescribes the procedure to be followed.) etc, with non-delivery of Registration Certificate of a Motor Vehicle, also requires reconsideration. In man missing cases, no cognizable offence can be revealed before investigation. The purpose of registration of F.I.R. in man missing cases is to enable the police to conduct search in accordance with the procedure prescribed in Cr.P.C. Many man missing cases on investigation may turn into serious offences involving wrongful confinement, abduction, kidnapping, murder etc., affecting basic human rights. Similar is the situation in cases under Section 174 Cr.P.C. The proceedings under section 174, F.I.R. will be forwarded only to the executive magistrate and only on detecting cognizable offence; the F.I.R. with additional report will reach a Judicial First Class Magistrate Court. Moreover, F.I.R. is not registered against any particular person to deprive of his life and personal liberty. In respect of all other situations including non delivery of postal article, complainant is at liberty to allege cognizable offences in his complaint to the police. If the complainant chooses not to raise a cognizable offence, the Police is not entitled to register F.I.R, without preliminary investigation and application of mind in view of the declaration of law by the Honourable Supreme Court in catena of decisions.

The exemptions were permitted with a great purpose, directly related to human life, dignity, personal liberty and generalising the same may give room for the executive to abuse the purpose of Section 154 Cr.P.C. The exemptions for practical purpose, which got judicial and statutory recognition, were a step towards protection of human rights, life and dignity.

In view of the above discussions, my humble view is that the legal propositions laid down in Valsala may not go in consonance with principles laid down by the Honourable Supreme Court.

1. Section 154. Information in cognizable cases.  (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2)A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 

The Proposal to Remove Jurisprudence from the 

Syllabus for the LL.B. Degree

(By K. Jagadeesachandran Nair, Advocate,High Court of Kerala) 

Any and every amendment or alteration cannot be considered as an improvement or change for the better. The syllabus for the law degree is being constantly altered and it is said with a view to improvement for the better. If so it is good. No doubt about it. But is it not worthwhile to look at it critically once in a while. In older days the syllabus consisted also of Roman Law, Ancient Law and Real property, I am told now all those have been relegated to the dust bin. To understand the development of the law from early times it would have been useful to learn the subjects mentioned. But if the time saved by the change is utilized in better and more useful ways it can be justified. But the latest proposal is to abandon the study of jurisprudence altogether from next academic year onwards. I am of the view that it does not add luster to the powers that be, nor does it help to enhance the prestige of the law degree awarded by the Indian Universities. It is well known that jurisprudence is the science and the philosophy of the law and is fundamental to the resolution of disputed questions of theory in law. The law of persons, the law of things, the law of property, the  law of procedure, the justice delivery system all these are built on the bed rock of jurisprudence and to discard it by the student of law would really cripple his development as a jurist and as a well equipped lawyer. It will be like seeing the foliage and mistaking it for the tree. The flower and the fruit and the seed and how the seed sprouts into the tree all these must be essential for a true knowledge as to how the tree will be in life. The mammal will have to be distinguished from those which are not, invertebrates and vertebrates have to be distinguished. All this is made possible only by knowing the basic science and philosophy behind it. To forget the substance and mistake it for the form is not proper. In all vexed questions I think a reference to the basic jurisprudence will become necessary for the lawyer and the judge. The constitutional lawyer goes to the principles such as separation of powers, sovereignty and its limit, extra territorial sovereignty, judicial review and its boundaries, natural justice and its limits. All these in my humble opinion calls for a study of jurisprudence and is not peripheral or a mere study of the statute by itself. The want of proper knowledge of jurisprudence and the philosophy of the existing law by the law makers and legislators have created and are creating anomalies and difficult situations in recent amendments and alterations of the law. Legislation encroaches on judicial sphere and of course there are extra territorial encroachments by the judiciary into legislative arena.  All these are basically questions for solution based on jurisprudence. The syllabus is decided by the Bar Council of India. It was only a short while ago that elections to the Kerala Bar Council was set aside by the apex court for various hitherto unheard of corrupt practices and illegalities in the election. If the elected members of the Bar Council of India find it that some expert advice is necessary on the question of syllabus is it not better to take advice from experts in the field of teaching and from academicians and senior lawyers and jurists in all walks of life and of course last but not least important from experienced members of the judiciary. At least knowledge must be welcome from any quarters. Light must always be welcomed. Lack of experience for the elected members of the Bar Council of India ought not to cause   havoc and jeopardize the standards and reputation of the Indian Law degree among the English speaking world following British jurisprudence such as the Commonwealth countries. Too much thought on the subject will not be waste of time. If it will be of any effect for a mature consideration of the subject. I for myself feel that study of jurisprudence cannot be left out from the legal curriculum except at the cost of real deterioration of standards. 

By making law degree a basic degree instead of a post graduate study as it was, the standard of the law student is greatly reduced to the high school level. And by tampering with the syllabus the quality of the degree also is to be progressively diluted. In former times only graduates could join Law College and so the standard of the student was that of a university graduate and law was only a post graduate study as all professional courses were so at a time including medicine and engineering. I think, at first engineering was made an under graduate study and then medicine and lastly law. I do not propose to enter an arena where educational experts have to say.  But I feel it was all wrong. A professional course student must be a man of the world and should not be just like a high school student. To condense professional courses and to compress it to short durations may have its advantages but the disadvantages have also to be seen. To reduce the standard of the Indian Law degree and leave real study of the basic of law to post graduate students in law is an innovation. I am not able to digest the idea that anything and everything new is good. A discerning mind is necessary to distinguish between the essentially good and the not so too good ideas of change. I have  gone through the  essay by G.S. Sharma in the seminar  on Legal Education in India held under the auspices of the  Poone University and published in 1973 where  he wanted to dilute the course in jurisprudence for LL.B. degree  as elementary and advanced study in jurisprudence for LL.M. Now the latest proposal is to abandon the study of jurisprudence by law students for the degree altogether. A progressive deterioration in standard is not advantageous to the students of law in the profession or for continuing study in India or abroad. Jurisprudence and evidence are difficult subjects for study. Does it mean both can be avoided? I think the benefit of the study and the knowledge of jurisprudence for a lawyer cannot be over emphasized. Throughout my career I have found it immensely useful for study and analysis of every branch of the law in depth and in its application to facts and situations I find it useful. I do not think this experience is mine only or that others equally experienced are not here. But they are keeping mum and so I speak aloud. Anybody can if so inclined disabuse me if I am seriously mistaken in my argument for retaining jurisprudence in the syllabus for the LL.B. I think some action or serious talk is urgent and if correction is required it has to be done before it is too late. A stitch in time will save nine.

Language of the High Court -- Linguistic Chauvinism or  
Pragmatic Commonsense?

(By Adarsh Kumar, Advocate, High Court of Kerala)

The idea of language being the hallmark of cultural rootedness is a widespread one. For a few examples, the Greeks called all non-Greek speakers barbarians, the French are only at home where French is spoken and the English consider the ability to speak another language a blemish.

The two principal incentives toward learning a language — any language are intellectual and economic. The same applies to the legal field as well. Due to the spread of English as the predominant language of international business as well as its role as a legal language within the European Union, legal English is now a global phenomenon and is a certainly a phenomenon to stay in India.

It is almost an historical axiom that no nation has ever successfully imposed its own language on a conquered people by force. Languages have always been accepted by a conquered people only when they have realised that to do so would benefit them, intellectually and materially. And the case of conquerors accepting the language of a subjugated people is not uncommon. The Mongols, who periodically invaded and subjugated China, inevitably ended by becoming, in speech as in other aspects, as much, if not more, Chinese than the Chinese themselves. On the same lines, the premise that since ‘English’ is the language of the imperial past, ‘Malayalam’ should be artificially superimposed as an effective substitute to English qua the courts especially the High Court, is both theoretically fallacious and practically dangerous.

Outrage is the flavour of the season. And Kerala’s more than the ‘good old vanilla’ as always. There’s more and more. The problem here is adulteration. It’s the same with facts. It appears that in view of the recent protests for making Malayalam as the language of all courts in Kerala, an assurance was given by Cultural Affairs Minister K.C. Joseph that steps will be started in this Assembly session for the enactment of a comprehensive legislation for the fulfillment of the same. It further appears that the protesters were also given the assurance to complete all the formalities for the legislation before the next assembly session. This article attempts to unravel a point of view shared by a dwindling number of scholars and public men in India today; a decidedly unpopular stand in these days of fierce linguistic positioning in the public arena.

The threat to the working of societal-legal processes in India lies not in replacing English with Malayalam as the language of the court, but in replacing English, at this belated juncture of passage of more than 60 years from the birth of independent India, with any of the Indian languages. The real threat lies in the direction of the pervasive and obdurate linguistic chauvinism which is out to oust the English language and to replace it overnight, with languages which are woefully ill-equipped for the task of imparting jurisprudential values on the basis of abstract notions of justice in the manner the English system of justice does. I doubt seriously whether any constitutional or other act or fiat will change that substantially.

In any event of the matter, under the present constitutional scheme, the said proposal of a comprehensive legislation seems wildly unrealistic and questionable. Part XVII which is the relevant part in so far as Official Language of the Union including language to be used in the Supreme Court and High Courts is concerned came into force on January 26, 1950, which day has been referred as the day of commencement of the Constitution of India. After coming into force of the Constitution of India the provisions of the Constitution shall prevail and all provisions of any existing or subsequent law in so far as they are inconsistent with the provisions of the Constitution of India will have no application whatsoever.

Therefore, when Part XVII of the Constitution of India came into force on January 26, 1950, and its Chapter III and more so its Article 348 provides for the use of language to be used in the Supreme Court and High Courts, the State Legislative Assembly is not competent to frame legislation(s) and/or rules that are repugnant to the same . In view of the factual position that Article 348 of the Constitution which starts with non-obstante Clause became applicable and all the proceedings in the Supreme Court and High Courts could only be in the English language unless so far as the High Court of the State is concerned, the Governor of the State with the previous consent of the President authorises under Article 348(2) of the Constitution of India the use of the local language. But in view of the proviso to Clause (2) of Article 348 of the Constitution of India nothing in that Clause shall apply to any judgment, decree or order passed or made by such High Court.

The proviso reads as follows:

“As from the appointed day or any day thereafter the Governor of a State may with the previous consent of the President authorise the use of Hindi or the Official language of the State, in addition to the English language, for the purposes of any judgment, decree or order passed or made by the High Court for that State and where any judgment decree or order is passed or made in any such language (other than the English language) it shall be accompanied by a translation to the same in the English language issued under the authority of the High Court.”

The proviso to Clause (2) of Article 348 of the Constitution of India therefore envisages the use of local language only “in addition” to English and not otherwise. Merely because the order of the Governor issued with the previous consent of the President enables the optional use of the local language in addition to English language for the purpose of judgment, decree or order passed or made by the High Court, it cannot be presumed under any stretch of imagination that there could ever be a State legislation mandating the same or purportedly enabling the manner of exercise of the said procedure for that matter.

Under the said proviso, it is not the duty of the Bench which give a judgment, decree or order in the local language to translate the judgment, decree or order in English and all that is required is that if judgment, decree or order is passed or made in the local language, it shall be accompanied by the translation of the same in English language issued under the authority of the High Court. It would then be the duty of the High Court on its administrative side to create a translation department with qualified persons and the High Court would then have to authorise its officer to authenticate the translations.

To my mind, in the event that the said function of translation were to be entrusted to a translation machinery invoking the said proviso, the understanding of law laid down by the ‘local-language’ High Courts (phrase invented for convenience) would be a tedious and complex semantic process of comparing and evaluating the accuracy of the translation with the original. This would inevitably lead to the possibility of the other High Courts refraining from referring to and relying upon the judgments of the ‘local-language’ High Court on account of the possibility of inaccurateness of the authenticated translations of the judgments vis-a-vis the actual judgments. A judicial system where translators as opposed to judges in the exercise of their judicial function interprets and elucidates the meaning and the legal nuances of words used in a judgment, would furthermore be fatal to the sheer centrality of the notion of ‘certainty’ in law and strike at the very root of the single integrated judicial structure coupled with the system of judicial precedent that we have established in our country.

It would be a pity if the finest milestones of Indian judicial creativity like the judgment in Keshavananda Bharati v. State of Kerala ((1973) 4 SCC 225) expressed through notions like ‘ basic structure’ were to be lost in translation. If judgments, decrees and orders are to be written in the local language and if it were to be the function of the High Court judges to translate the same; then the overburdening of the higher judiciary will have attained even more gargantuan proportions on account of the duplication of the work involved in the said exercise and the ever-increasing overload of cases. The same may consequently throw the system in a state of complete disarray and perhaps lead to its complete collapse.

In all analysis, the Bar and the Bench recognises and accepts English as the most convenient and most widely understood medium for legal communication and understanding law. It is further noteworthy that in the age of increased super-specialization in legal learning, opening of legal services markets and practice of law, there will be an increased use of technical terminology and doing away with our familiarity in legal English will only wean away the potential young lawyers from entering the legal profession in Kerala at a time when youngsters sans a legal pedigree are particularly disinclined to enter the profession. If the bar is singularly and exclusively gerontocratic, it becomes a legend of fiction in no time and sans the legal fraternity, to make an exaggerated ‘ad absurdum’ analogy, we may perhaps in no time return to the bullock cart age of ‘Durbari justice’.

Until what is written in Malayalam (whether original creations or translations) has more to offer intellectually than English in terms of its jurisprudential treasure, the Bar and Bench would still subscribe to English as the language of legal communication and understanding in all respects and the artificial superimposition of Malayalam from atop would at best be nothing, but a miscued exercise in redundancy. The carrot clearly works better than the stick.