Indelible Memory Never Will Fade

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

“I have lived and flourished in a Secular India. In the fullness of time, if God wills, I would also like to die in a Secular India.”

                                            - Fali.S.Nariman in his Autobiography Before Memory Fades

“Before Memory Fades’ instantly attracted me while I was gazing through the book piles of Modern Book Centre, Thiruvananthapuram. Without any second thought I bought the book ‘Before Memory Fades’ penned by Fali.S.Nariman which is rich with his indelible memories. There are outstanding autobiographies and memories of many eminent legal personalities which adorn the legal literature. M.C.Chagla’s ‘Roses in December’ is a remarkable book which tells the intellectual experiences of Chagla and the road he travelled to reach at the helm of affairs of the Bombay High Court. H.R.Khanna’s refined and short book about himself and his life titled, 'Neither roses nor thorns’ shows his early life, his testing times during emergency period and the short stint of his ministership is another gem in the crown of autobiography. But Hidayathulla’s ‘My own Bosewell’ stands out different from the other ones on many facets. The author’s student years in England are depicted in the beginning part. Later, it develops into a crafted literary exposition. The middle part deals with the formative years of Hidayathulla as a budding lawyer and then the metamorphosis of him into the most shrewd and assertive one in the later mature years. His Judgeship and Chief Justiceship are narrated in a rather introspective manner. M.C.Setalwad’s ‘My life’ though is a big book, yet, it seldom contains the personal details and careergraph of the learned author. His main exaltation is on the freedom movement, drafting of the Constitution and his contributions as the first Attorney General of India. He emphasized on the cherished principles of the Constitution and the leading cases in which he appeared. He has extensively narrated his achievement as the First Law Commission Chairman. It is M.C.Setalwad who suggested in the First Law Commission report to constitute a Lokpal in the form of an independent ombudsman with judicial powers to deal with corruption in public life. The book is a wealth of knowledge in the matter of legal wisdom exercised by the author as a patriot as well as eminent scholarly lawyer.

Fali.S.Nariman’s autobiography is an entirely different stuff. Born on the 10th day of 1929 in Rangoon to Zorastrian (Parsis) parents, Fali @ Baba completed his education in India. His parents and their children including little Fali had to leave Rangoon for India and take refuge since Japan bombed Rangoon during the second world war. Fali was sent to Bishop Cotton School, Shimla, thereafter to St.Xavier’s College Bombay. He took his law degree from Government Law College, Bombay. After graduating in law, Fali started his legal career at Payne & Co., as a novice. Later, he joined the prestigious Khanga Chambers of which Sir.Jamshedji B.Khanga was the Skipper. Khanga’s chambers was the super class one which contributed many a   legal luminaries such as Nani Palkhiwala,   H.M.Seervai and Soli.J.Sorabjee to name a few. It is interesting to mention that three parsis have dominated over jurisprudence for the past five decades in India, Nani Palkhiwala, Soli Sorabjee and Fali.S.Nariman. It is surprising to see that this community, given refuge in India when they fled the Islam invasion of Persia, has given to India many distinctive contributions. Dadabhai Naoroji started our freedom movement. Jamshedji Tata launched the path of industrialisation. Homibaba gave India atomic energy for peace. Sam Manekshaw liberated Bangladesh with his shrewd military skill. What an enormous return for a small favour done by our country to those great men.

In the beginning chapters Fali vividly describes his formative years at the bar as a budding lawyer. When Fali was just a year old in the bar, Nani Palkhiwala had entrusted with him an appeal under the Land Acquisition Act. Nani had an engagement before the Income Tax Appellate Tribunal. The appeal came before the bench of Chief Justice M.C.Chagla and Justice Gajendragadkar. Fali was reluctant to argue the appeal, so he told the bench that Nani was appearing in the appeal. Then Chief Justice Chagla asked Fali if he knew the matter.This turned out to be the golden opportunity for Fali to express himself before the bench. Fali ably presented the appeal. Nani came while Fali was rendering his argument. Nani interrupted but Chagla rebuked him saying that Fali has presented the matter well.

The second part of the book is really a classic locus which is the commentary on the most important historic cases on the constitutional provisions. Those are Shankari Prasad (1951), Sajan Singh (1965), Golaknath (1967), Kesavananda Bharati (1973) and Minerva Mills (1980) which laid emphasis about the importance of fundamental rights as part of our Constitution. Fali exhorts how the Judicial interpretation dealt with the amendments which were subject matter in the above cases and held that fundamental rights form part of the basic structure of the Constitution which cannot be amended away. While Fali was turning to be rising star in the lawyer’s profession at the age of 38 he was offered Judgeship at the Bombay High Court. Firmly but politely he declined the offer for financial reasons. The book has a touching episode about the emergency period in 1975. He was the Additional Solicitor General of India then. He recalls the dubious days like 12th June 1975 when the Allahabad High Court gave the verdict that Indira Gandhi indulged in corrupt practice in her election which disqualified her from holding public office. On 22nd June 1975 an appeal was moved before the Supreme Court by Nani Palkhiwala for Mrs.Gandhi. He pressed for the stay of Allahabad High Court’s verdict. Nani argued before V.K.Krishna Iyer and got the verdict stayed. It saved Mrs.Gandhi from the illfate. Soon after Mrs.Gandhi declared emergency, the black chapter of Indian democracy. Fali resigned from the post of Additional Solicitor General in protest of declaring emergency and suppressing civil liberties and rule of law.

Fali gives great acolade and homage to the eminent Judges H.R.Khanna and V.R.Krishna Iyer in the book. He held that indeed H.R.Khanna knew, when he signed the dissenting judgment in A.V.M.Jabalpur case (1976) that he was signing away his future Chief Justiceship. However, Fali suffered severe criticizm when he appeared for the Union Carbide Corporation in the Bhopal Gas tragedy case before the Supreme Court. Professor Upendra Baxi and many others described him as “fallen angel” questioning his representation as a human right’s activist. Upendra Baxi even declared that he will not share seats with Fali anymore in any public functions. There is an interesting chapter in the book in which Fali explains his stand. He has also written letters to Upendra Baxi and Baxi has replied to them also. Fali has candidly published those letters and replies in the book which shows the transparency of his mind.

'Before Memory Fades' is not only a book about legal achievements and professional success of a brilliant lawyer, but also is the outcome of a vibrant story teller, whose keen observations about places, people, circumstances and above all nature and human life. The book is a must read for the book buffs. Fali was awarded Padma Bhushan in 1991 and Padma Vibbushan in 2007. To conclude, the book will simply awe and inspire one who reads it avidly. Memory is a form of images kept stored in the backyard of human mind. The good ones are like small rainbows in the puddle of drizzle. Some memories are little miracles that light up the way on dark and rainy nights.

Room for Critical Thinking

(By P. Chandrasekhar, Advocate, Ernakulam)

Indians are traditionally argumentative. Amartya Sen says that ‘prolixity is not alien to us in India’ and also that ‘the arguments are also, often enough quite substantive’(Amartya Sen:The Argumentative Indian; Penguin Books 2005.) . According to Sen, democracy is intimately connected with public discussion and interactive reasoning and there is something unique in Indian history that makes the country singularly suited to democracy rather than taking democracy to be just a gift of the Western world that India simply accepted when it became independent. Democracy as public reasoning is not altogether a new idea. For John Rawls ‘the idea of public reason belongs to a conception of well ordered constitutional democratic society’ (John Rawls :The Law of People.). Alongside with the concept of democracy as public reason is the concept of judiciary as a democratic institution and ‘judicial review as an important avenue for democratic participation’ (Patrick O’Brien:Judicial Review as Democratic Institution.).

Jurists and social scientists in India hold higher judiciary in high esteem. According to Prof. Upendra Baxi “The interpretive leadership of the Supreme Court of India and the Indian High Courts is of a very high order and has impacted on the South Asian and some other Global South jurisdictions”(Prof Upendra Baxi: Judiciary as a source of India Democracy; Seminar November, 2010).Andre Bateille, a well known Sociologist points out that ‘the Supreme Court hold its place in public esteem rather better than the Lok Sabha. Despite occasional allegations of financial impropriety, our Judges are still regarded as being on whole learned, high minded and dutiful in contrast with legislatures, ministers and civil servants”(Andre Bateille:The Institutions of Democracy; Third Praveen Visaria Memorial Lecture; Ahmedabad.). Andre Bateille, without contradicting Amartya Sen, says that “Indian are much more at ease with spoken than with written words” and that “commenting on the inordinate length of our Supreme Court judgments, Nani Palkhivala had once observed that they give clear evidence of the Indian preoccupation with eternity and infinity. Being able to write clearly and well is not just a matter of intelligence or even facility with language. Above all it requires patience and care, and emotional investment of a certain kind”(Andre Bateille:Ideology & Social Science; Penguin Books India 2006). Of late, major criticism against judiciary has sprung from critical insiders who had first hand experience of the working of higher judiciary. Justice Ruma Pal, a former Supreme Court Judge, has candidly said that most of the decisions emerging from higher judiciary are “without original reasoning in support of conclusion’ and are only “compendia or digest on a particular issue”(Justice Ruma Pal:Seven Deadly Sins of Judges; Indian Express; November 12, 2011.). Few years before Justice B.L. Hansaria, had aired similar concern stating that working under pressure Supreme Court has no time for deliberation and therefore very little time for research (Justice B L Hansaria:Do We Need a New Constitution?) . There is an overall feeling that the ‘argumentative Indian’ about whom Amartya Sen was proudly talking is now facing a natural death. A classic example could be found in the recent decision of the Full Bench, Raman Gopi v. Kunju Raman Uthaman (2011(4) KLT 458 (F.B.)).

In Raman Gopi’s case the Full Bench was answering a reference as to which of the conflicting decisions of co-equal benches of the Supreme Court is binding on the High Court and Subordinate Courts. Following the decision of an earlier Full Bench in Joseph v. Special Tahsildar (2001 (1) KLT 958 (F.B.)), the Full Bench in Raman Gopi’s case held that the High Court and Subordinate Courts are bound by the latest among the conflicting decisions of co-equal benches of the Supreme Court. Is the latest among the two conflicting decisions is binding because of the presumption that the previous decision shall deem to have been overruled by the latest decision? Is it because the latest decision shall deem to be correct in view of the development of law by passage of time? Is it because the High Court and Subordinate Court has a duty to anticipate overruling of the earlier decision in the face of the latest decision applying the principle of “anticipatory over ruling”?

Raman Gopi’scase was referred to Full Bench finding conflicting between two co-equal benches of the Supreme Court in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) and Shyam Sunder Sharma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)). Both decisions are of Benches consisting of three Judges. The facts in Raman Gopi’s case are short and simple. A suit for recovery of possession was decreed. An appeal was filed by the defendant out of time along with an application for condoning the delay in filing the appeal. The petition for condoning delay was rejected and consequentially appeal was dismissed as filed out of time. An Execution Petition filed by the decree holder after 14 years from the date of decree was objected by the judgment debtor as not maintainable having filed beyond the period of 12 years from the date of the decree, the prescribed period under the Limitation Act. The preliminary objection was rejected by the Execution Court holding that the period of limitationran only from the date of appellate decree and that the execution petition was within the prescribed period of limitation. The order of the Executing Court rejecting preliminary objection of limitation was under challenge before the High Court in Raman Gopi’s case.

The facts in Chandi Prasad’s case are not similar to Raman Gopi’s case. The reported decision shows that issue involved in Chandi Prasad’s case was relating to enforceability of final decree and maintainability of an execution case in a partition suit which was filed beyond the period of limitation when counted from the date of Appellate Decree but within the period of limitation from the date of Second Appellate decree. The issue raised was whether the date of decree of the Second Appellate Court could be taken as the date to enforce the decree in as much as Second Appeal having been entertained only on substantial question of law and doctrine of merger of Appellate Decree in Second Appellate decree having no application in such a case the period of limitation would runfrom the date of Appellate Decree and not from the date of Second Appellate Decree. The question as to whether an order dismissing an Appeal consequent on rejection of application to condone delay in filing Appeal an order passed in the Appeal or not was not a issue which directly or substantially arose in Chandi Prasad’s case. Though there are passing references in Chandi Prasad’s case referring to a decision of the Delhi High Court that ‘when an appeal is dismissed on the ground that delay in filing the same is no condone, the doctrine of merger shall not apply’ no such legal issue arose in the case and no such law was laid down in that case for universal application. Chandi Prasad’s case had been placed before a Bench of three judges of the Supreme Court doubting the correctness of Ratan Singh v. Vijaya Singh & Ors (2001 (1) KLT 327 (SC) = (2001) 1 SCC 469), a decision rendered by a Bench of two Judges. In Chandi Prasad’s case the Court found that the facts in Ratan Singh’s case were different and the said decision had no application to the Chandi Prasad’s case. In Ratan Singh’s case the court was confronting a question as to whether the starting point of enforceability of a decree is the date of the Appellate Decree or the date on which the Second Appeal was dismissed consequent on rejection of application to condone the delay in filing the Second Appeal. In Ratan Singh’s case a Bench consisting of two Judges of the Supreme Court held that an appeal filed along with petition to condone delay in filing the appeal was only an appeal proposed to be filed. The facts in Shyam Sundar Sharma’s case are also different from the facts in Chandi Prasad’s case and Ratan Singh’s case. In Shyam Sunder Sharma’s case, the trial court decreed a suit ex parte. The defendant filed an application to set aside the ex parte decree. Thereafter the defendant filed an appeal against the ex parte decree along with an application to condone the delay in filing the Appeal. Subsequently the Appellate Court dismissed the application to condone the delay and the Appeal for default. The trial court dismissed the application to set aside the ex parte decree in the suit stating that in view of Explanation to O. IX R.13 that where there has been appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under R.13 of O.IX of the Code of Civil Procedure, the application for setting aside the ex parte decree could not be entertained. It was argued by the Defendant in Shyam Sunder Sharma’s case before the Supreme Court that the appeal having dismissed consequent on rejection of application to condone the delay in filing the appeal, there was no appeal in the eye of law and therefore Explanation to Rule 13 of Order IX of the Code had no application. The Defendant relied on Ratan Singh’s case for the proposition that an appeal filed along with an application to condone delay is an appeal proposed to be filed and is not an appeal in the eye of law. The Bench of three Judges in Shyam Sunder Sharma held that the decision in Ratan Singhwas contrary to the decision in Sheodan Singh v. Daryo Kunwar (AIR 1966 SC 1332) rendered by a Bench of four Judges of the Supreme Court and Mela Ram & Sons v. Commissioner of Income Tax wherein the Supreme Court categorically held that’'where a decision is given on merits by Trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the Trial Court on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be groundfor dismissal of the appeal’. The question as to whether an appeal filed along with application of condonation of delay in filing the appeal is an appeal or an appeal proposed to be filed was not a legal issue directly or indirectly in Chandi Prasad’s case. Chandi Prasad’s case did not lay down any new law of universal application. The observations made in Chandi Prasad’s case which looked apparently contrary to the legal issue settled in Shyam Sundar Sharma’s case was only passing remarks made without any deliberation or discussion. In other words, there is nothing in Shyam Sundar Sharma’s case and in Chandi Prasad’s case to indicate that they were in direct conflict relating to any legal issue or point.

The view taken by some of the other High Courts that when there is a conflict between two co-equal benches of the Supreme Court the High Court and subordinate court should have the freedom to choose between the two decisions as to which of them lays down the law clearly and correctly is not, obviously, in accordance with the law of precedents prevalent in our country. As pointed out by the Supreme Court in Bengal Immunity Co. Ltd v. State of Bihar (AIR 1955 SC 61) ‘English decisions may well have been influenced by considerations which are no longer apply to the circumstances prevalent in India”. The English tradition that when two decisions of co-equal courts are in conflict the court is at liberty to chose between the two cannot be mechanically applied to Indian condition. Prior to 1966 the House of Lords in England was bound by its own decision. In 1898 the House of Lords had declared in London Street Tramways Co. Ltd v. The London County Council that a decision upon a question of law is conclusive and binds the House in subsequent cases. In 1966 House of Lords issued a Practice Statement (Judicial Precedent) reserving the right of House of Lords to depart from a previous decision when it appeared to them right to do so. In Young v. Briston Aeroplane Co. Ltd. (1944 KB 718) the Court of Appeal held that it was bound to follow its own decision and decisions of co-ordinate jurisdiction. It was also held that when two decisions are in conflict it is duty of Court of Appeal to decide which of the two decisions it should follow. No such law exists in India. In India when a co-ordinate Bench is faced with two conflicting decisions of coequal benches of the same court, the duty is to refer the case to larger bench and not to decide which of the two decisions it should follow. What the other High Courts, perhaps, failed to note is the difference between horizontal stare decisis’ and vertical stare decisis’. The duty of the Court of Appeal to decide which of the two conflicting decisions of its own should follow arose in relation to ‘horizontal stare decisis’ where precedential value of earlier decisions of the same court or court of co-ordinate jurisdiction is in issue. In 'vertical stare decisis’ where the duty of the subordinate court is to follow decision of a superior court the rule mentioned in Young v. Briston Aeroplane Co. Ltd. has no application. W.H.D Winder in an illuminating article explains that the proposition laid down in Young’s case by the Court of Appeal applies only when the conflict is between two decisions one on each side and not when there is a conflict between a series of decisions on the one hand and one decision on the other. In such a case the earlier series of decisions have to be followed in preference to the subsequent conflicting decision(W H D Winder;Divisional Court Precedents; Modern Law Review Vol. 9, 1946, page 257). In Watte v. Rees (1854) Plock C .B. is said to have taken a view that I should have felt myself bound by the last authority upon the question of a court of co-ordinate jurisdiction, if the previous one had been adverted to and had been deliberately overruled’. There is, therefore, no rule in England giving absolute freedom to choose between conflicting decisions of co-ordinate courts. When decisions of co-equal jurisdictions are in conflict there is no rigid rule even in England that the subordinate or lower courts shall have absolute freedom to chose from the two and to chose the one which according to the court below lays down the law correctly. The normal rule, it appears is that the last among them will have to be followed by a Subordinate Court on a presumption that the former deemed to have been over ruled by the subsequent decision.

The view that when there is conflict between two decisions of the Supreme Court of co-equal Benches, one on each side, acceptance of the last one as the precedent may create jurisprudential problems. It is now well settled by the Supreme Court that a co-ordinate bench of the Supreme Court has no power to overrule another co-ordinate bench decision. As held by the Constitution Bench in Central Board of Dawoodi Bohra Community & Another v. State of Maharashtra & Another (2005 (1) KLT 486 (SC)), a co-ordinate Bench could only doubt the decision of the earlier co-ordinate Bench and refer the matter to larger Bench or place the matter before the Chief Justice of India. That being the law of the land under Article 141 of the Constitution of India no inference could be drawn that the subsequent co-ordinate Bench had overruled earlier co-ordinate Bench decision. To say that the latest decision of the co-ordinate Bench would hold good in relation to the conflicting former decision of co-equal bench would mean to say that the later decision had overruled the earlier decision, and that would be as held by the Supreme Court in Indian Oil Corporation v. Municipal Corporation ((1995) 4 SCC 96) doing something the later co-equal Bench itself did not do or could not do.

American view regarding the duty of inferior courts when Appellate Court decisions are in conflict finds expression in Auto Equity Sales, Inc. v. Superior Court (57 Cal. 2d 450.) The Californian Court held that when ‘appellate decisions are in conflict the court exercising inferior jurisdiction can and must make achoice between the conflicting decisions.’ The American rule was obviously based on the principle of ‘anticipatory overruling’. According to this view, lower courts owe allegiance to earlier Supreme Court precedent, regardless of how doubtful that precedent may have become in light of developments in other areas. According to the principle of ‘anticipatory stare decisis’ lower courts should recognize when a Supreme Court precedent is effectively dead, whether or not the Supreme Court has acknowledged the murder. According to this view, lower courts should disregard Supreme Court decisions when they are reasonably sure that the Supreme Court would overrule them given the opportunity. This rejection of doubtful precedent by lower courts has been termed anticipatory overruling(C. Steven Bradford:Following Dead Precedent: The Supreme Court’s Ill-advised rejection of Anticipatory Overruling. Fordham Law Review Issue 1;1-1-1990). In Rodriguez de Quijas v. Shearson/American Express, Inc.(109 S.Ct. 1917 (1989) the U.S. Supreme Court spoke in favor of blind obedience to precedent and refused to accept ‘anticipatory overruling’ as law of the land. Even accepting ‘anticipatory overruling’ a sound principle to resolve a problem caused by conflicting decisions of co-equalbenches, the acceptance of the last decision cannot be rigid, because mere conflict cannot lead to an automatic inference of ‘anticipatory overruling’.

In spite of Rodriguez, ‘Anticipatory Overruling’ is a subject vigorously debated in the US. Prior to US Supreme Court decision in Rodriguez, a number of US court opinions indicated, often in dictum, a willingness to disregard a Supreme Court precedent if convinced that the Supreme Court would not follow it. Another line of cases stated that lower courts must follow Supreme Court precedent, doubtful or not, until it had been expressly overruled. Justice Blackmun of the Eighth Circuit Court of Appeals in Ashe (399 F.2d at 45) refusing to disregard two ten-year-old Supreme Court double jeopardy Cases said that ‘this court is not the Supreme Court of the United States. We therefore are not free to disregard an existing fiat and still live holding of the Supreme Court even though that holding is one by a sharply divided tribunal.’ Even courts supporting anticipatory overruling disagreed about when it was appropriate. Most courts required a strong showing that the Supreme Court was likely to overrule before they would disregard live Supreme Court precedent. US Supreme Court decision in Barnette v. West Virginia Board of Education is the most frequently cited example of anticipatory overruling. Barnette involved a constitutional challenge to a compulsory flag salute in public schools. The Supreme Court had upheld the constitutionality of such a flag salute in Minersville School District v. Gobitis (310 U.S. 586 (1940) which, at the time Barnette’s case was decided, had not been overruled. Judge Parker’s rejection of Gobitis became classic. He said that ‘ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority. Of the seven justices now members of the Supreme Court who participated in that decision, four have given public expression to the view that it is unsound, the present Chief Justice in his dissenting opinion rendered therein and three other Justices in a special dissenting opinion in Jones v. City of Opelika. The majority of the court in Jones v. City of Opelika, moreover, thought it worth while to distinguish the decision in the Gobitis case, instead of relying upon it as supporting authority. Under such circumstances and believing, as we do, that the flag salute here required is violative of religious liberty when required of persons holding the religious views of plaintiffs, we feel that we would be recreant to our duty as judges, if through a blind following of a decision which the Supreme Court itself has thus impaired as an authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties.’(Barnette v. West VirginiaBd. of Educ., 47 F. Supp. at 252-53) Steven Bradford says that the US Supreme Court’s stand in Rodriguez is surprising. He says that Supreme Court decisions prior to Rodriguez said very little about how the lower courts should treat doubtful Supreme Court precedent. The Supreme Court had many opportunities to criticize anticipatory overruling, but did not do so. In most cases in which a lower court rejected suspect Supreme Court precedent, the Supreme Court simply ignored the jurisprudential issue and confined its opinion to the substantive issue at hand. Two cases arising in the aftermath of Brown v. Board of Education (347 U.S. 483 (1954) illustrate the stifling effect the Rodriguez position could have. Brown v. Board of Education, decided in 1954, rejected the separate-but-equal doctrine and held that racial segregation in public education was constitutionally impermissible. Two challenges to segregation policies on buses followed the Brown decision. At the time those cases arose, the Supreme Court had not expressly overruled Plessy v. Ferguson, (163 U.S. 537 (1896), which allowed segregated public transportation. Under the Rodriguez view, the lower courts would have been required to follow Plessy and uphold the segregated bus policies, even though Brown clearly disapproved of public racial segregation. In fact, lower courts refused to follow Plessy. One lower court noted that “a judicial decision, which is simply evidence of the law and not the law itself, may be so impaired by later decisions as no longer to furnish any reliable evidence. The Fourth Circuit held that “We do not think that the separate but equal doctrine of Plessey v. Ferguson can any longer be regarded as a correct statement of the law. That case recognizes segregation of the races by common carriers as being governed by the same principles as segregation in the public schools; and the recent decisions in Brown v. Board of Education and Boiling v. Sharpe, which relate to public schools, leave no doubt that the separate but equal doctrine approved in Plessy v. Ferguson has been repudiated. That the principle applied in the school cases should be applied in cases involving transportation appears quite clearly from the recent case of Henderson v. United States where segregation in dining cars was held violative of a section of the interstate commerce act providing against discrimination. If the reaction to Rodriquez is of any indication, it is unlikely that the call for ‘anticipatory overruling’ as a principle to be followed in appropriate circumstances would die in the near future.

Prof. Barry Friedman points out ‘stealth overruling’ is another problem faced by US lower courts (Barry Friedman:The Wages of Stealth Overruling: George Town Law Journal, 2010.). He says that in stealth overruling ‘justices are perfectly aware that they are over ruling but hide the fact that they are doing so. Instead, the court sneaks through opinions that denude earlier cases of effectiveness, yet leave them barely alive’. He says that it is like ‘a justice will have planted a time bomb in a current opinion, hoping friendly lawyer or legislator will later spark the fuse, exploding the precedent into constitutional oblivion’. Tracing the gradual erosion of principle laid down by US Supreme Court in Miranda v. Arizona ((384 US-436) (1966), he said that the progeny based on Miranda’s case showed how gradual stealth overruling whittled the major case to meager facts. The Court in Miranda held that suspect must be clearly informed of the right to consult with a lawyer and to have the lawyer with him during interrogation’. The Court in subsequent decisions diluted the principle and in Florida v. Powell (130 S.Ct. 1195 (2010) without overruling Miranda and held that it was enough for police to provide an instruction that included a right to consult with lawyer and not the right to have the lawyer with the suspect during interrogation. The court perhaps felt that the principle in Miranda was unworkable. It is, however, felt that the lower courts have been reduced to a ‘group of post hoc stamping magistrates’ and ‘are made to carry dead wood’1(Richard Brust: Dead Precedents: The Justices Over Rule, But they do so stealthily.). There are similar Indian predicaments. The gradual transformation of education, which had earlier been a public charity in view of the earlier decisions of the Supreme Court, into profession, occupation and trade, under the fold of Article 19 of the Constitution of India, by a series of subsequent Supreme Court decisions, is an obvious instance.

Jurists are of the opinion that iron clad insistence of obedience to stare decisis would take away intellectual potential of the subordinate courts. A balancing exercise to provide them authority to chose their own course having regard to given facts,ratio dicidendi, erosion of precedential value of the decision, overall growth of law, development of society and also impact of passage of time alone would sustain court as democratic institution. In a democratic society like India there is always room for critical thinking in that direction.

Gender Equality and Intestate Succession of Females under Hindu Law

(By Advocate Mamatha T.K., LL.M., Guest Faculty in Law, CUSAT, Kochi)

Personal laws are always considered as antithetical to the principle of gender equality. The Hindu Personal Law which was not an exception to this rule has undergone a drastic change by the enactment of the Hindu Succession Act, 1956. The system which was purely based upon the concept of patriarchy was widened and thereby the rights which were earlier denied to the women community were then conferred to them. The rule of limited ownership of property was eliminated and replaced by the right to hold property as an absolute owner (The Hindu Succession Act, 1956, Section 14.). The Hindu Succession (Amendment) Act, 2005 established that a woman can be considered as a coparcenar for all purposes under Hindu Law (The Hindu Succession (Amendment) Act, 2005, Section 6.). Hence the Hindu Succession Act, 1956 and the Hindu Succession (Amendment) Act, 2005 were treated as highly revolutionary, which revamped the societal status of a woman and thereby brought them in parity to a certain extent with men folk.

Despite all these developments, a major area of discrimination which persists in the Hindu Succession Act, 1956 is the rule of intestate succession of a Hindu female (The Hindu Succession Act, 1956, Section 15.).This issue assumed a serious nature when the judiciary was unable to extend justice due to the intricacies involved in the provision. The Law Commission also played its part by recommending new changes to resolve it. But nothing changed and it still remains in the statute book, ridiculing the principle of equal status for men and women, which our Constitution upholds.

Provision  for  intestate  succession

The rules of intestate succession to a Hindu female are enumerated under section 15 of the Hindu Succession Act, 1956. It consists of three parts which contain different rules of succession based upon the sources from which a female obtains property. The modes which determine the devolution of property of an intestate female are:

         • Property inherited from her own father or mother

         • Property inherited from her husband’s family

         • Property obtained from other sources

If a woman acquires certain property from her father or mother, on her dying intestate, the said property will devolve upon the heirs of her father (The Hindu Succession Act, 1956, Section 15(2)(a).). If the property retained by a female is the one she inherited from her husband or father-in-law then the heirs of the husband will be entitled to the same (The Hindu Succession Act, 1956, Section l5(2)(b).) . These two provisions will operate only when the female does not have any issues. If she has children, then they will be entitled to the property irrespective of the sources from which it is inherited.

But the manner of devolution is different if the property which a female holds is obtained from other sources. What all constitute the “other sources” is not mentioned in the Act. From the provision it can be understood that, if a woman is able to acquire some property other than from her husband or his family or from her own family, then it can be termed as the property obtained from “other sources”. This type of property will initially devolve upon the husband,  sons and daughters (including children of any predeceased son and daughter) of a Hindu female dying intestate. Secondly, if the woman does not have any of the above said relations, then the heirs of her husband can have the property of the intestate. In the absence of above said heirs, the mother and father of the female will be entitled to the property. If there are no members in any of the previously stated set of heirs, the fourth preference will go to the heirs of her father and lastly, to the heirs of her mother (The Hindu Succession Act, 1956, S.l5(1).) .

References to the prior status of women in society may justify the reasons for introducing such a peculiar system of succession based upon the sources of inheritance. The legislature while framing this scheme was very much influenced by the whole Mitakshara law, its concept of stridhana and inheritance by a female in a double capacity. This reversion of the once-inherited-property back to her father’s or her husband’s heirs shows a desperateness on the part of the legislature to treat her only as a temporary occupier (Poonam Pradhan Saxena,“Succession Laws and Gender Justice”, in Redefining Family Law in India. Routledge, New Delhi  (2008), p.289.). The property which she receives from either family will go back to them on the event of her dying intestate.

Recent controversy regarding the intestate succession of a Hindu female revolves around the devolution of third category of property which she obtains from “other sources”. According to the Hindu Law, if a person earns some property out of his own toil and moil, it will be the separate or self-acquired property of that one concerned. As regards a woman, this self-acquired property will naturally come under the category of property obtained from other sources. The problem actually begins at this juncture. The rules set out for the devolution of the self-acquired property of a female create tension and unrest among the whole community.

The extent of injustice perpetrated by this section became evident in Omprakash and Others v. Radhacharan and Others (2009 (2) KLT 971 (SC) = (2009)15 SCC 66.).  In this case, the female whose devolution of property was under question, left the home of her husband (thrown out) shortly after his death. Thereafter, she lived with the aid of her own parents. Before dying intestate, she left a huge sum earned out of her employment. The separate property of a woman will of course come under the term ‘other sources’ whose devolution is determined by Section 15(1) of the Hindu Succession Act, 1956. As per this section, due to the absence of heirs in the first category, the property was about to naturally devolve upon the second group of heirs that is, the heirs of the husband, who had driven her out from the matrimonial home.

The intestate female’s mother challenged this manner of devolution of property before the Supreme Court. The Court agreed with the fact that the deceased female was completely denied support from her husband’s family and also she had no connection with her matrimonial home after the husband’s death. But still by invoking Section 15(1) of the Hindu Succession Act, 1956 the Court dismissed the appeal filed by mother of the deceased and upheld the rights of husband’s heirs to that property. Even though the factual situation warranted an opposite order the Court was of the view that sentiment or sympathy can never be the guiding factors to pronounce a judgment (Supra para. 10.).The court identified this case as a hard one stating that “because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible (Supra para. 10.).”  Here the existing provision of law breeds injustice and it goes against the principle of gender equality too. Law of equity and good conscience demands an order favouring the appellant but in reality the hands of Court were tied up by the prevailing rule of intestate succession. The language of the court implies that it had pronounced such a judgment only because the law says so. Otherwise the court may have easily adjudicated the matter in favour of the appellant.

At this juncture, what attract our attention are the provisions of intestate succession to the property of a Hindu male. As far as a Hindu male is considered there is no distinction of property based upon the sources. The property of a Hindu male should primarily devolve upon Class I heirs. If there are no heirs under Class I the second preference will be for the Class II heirs. In the absence of both Class I and Class II heirs, agnates of the deceased will be entitled to the property. Finally, the property will be vested with the cognates if heirs in other three groups are absent (The Hindu Succession Act, 1956, Section 8.).

While analyzing the provisions of intestate succession to both males and females we can witness substantial differences. The Class I heirs who are entitled to the property of an intestate male includes his mother and the first category among the Class II heirs contains his father (Non-inclusion of the father in Class I is being challenged and the Law Commission has recommended to include father under Class I heirs.). The parents of a male are given much predominance at the time of distribution of his property or in other words, they are entitled to the property of their son in the first instance. With respect to a female we have found that her husband’s heirs will gain the right to her property before her own parents. Incorporation of such a provision shows the pure dominant character of men who bases the justifications on the Hindu culture, which severs the relation of a woman with her family at the time of her marriage. As per the Hindu religious system, from the date of the marriage a woman’s family is her husband’s family and a woman spends substantial part of her life in matrimonial home. By solely emphasizing this fact, the law makers have granted primary consideration to family members of her husband while her own parents were treated as secondary. Moreover, in this post modern era the conventional concept of family has drastically changed and it is bald to say that women are spending a substantial part of her life in matrimonial home. Is this provision serving justice when she is completely severed from her husband’s family? Omprakash ‘s case depicts such a situation in which law became a hurdle to justice even though law is made for its administration. The deceased female’s property which she earned with the help of her parents had devolved upon the most undeserving persons on earth as far as she is concerned. The term “heirs of husband” is wide which will include a large number of persons related to him. It is not at all fair to keep parents of the female away till each and every member of her husband’s family disappears.

This principal status for the husband’s side was granted due to the traditional concepts which prevailed during early decades. But now the situation has changed tremendously and the stature of women in the eyes of society has improved. She has emerged from the position of a home maker to bread winner and has occupied higher echelons in the society. Percentage of self employed women in the society is evidently increasing. Hence they gain more respect and now enjoys a better position compared to their predecessors. So in this changed scenario, chaining them with the age old concepts should cease. Due to the operation of this provision not only the female faces inequality but also her parents. The parents are denied the rights to their child’s property only because the child is a female. Thus they are also facing an implied discrimination compared to that of the parents of a male. The care and concern of the parents of a female towards her child is disregarded completely. In short, this section turns out to be a tool having the power to suppress the hard earned independence and dignity of women. The only way to resolve this crisis lies with the timely interference of the legislature to make the required changes to do away with this injustice.

Recommendations   of   Law   Commission

The Law Commission headed by Justice AR. Lakshmanan, being convinced by the injustice set out to women at the time of succession, had put forth a proposal to amend Section 15 of the Hindu Succession Act, 1956 in 2008. Rightly the Commission perceived the changes which had been brought about in the Indian society with respect to a woman. It identified the changes in the structure of families from joint to nuclear and consequent developments which followed as a result of the woman empowerment. It recognized the economic independence which the woman had gained through these decades. The Commission very properly agreed with the injustice which had been faced by the woman community for the past years and it established that the legislators did not contemplate a situation in which woman acquires property by her own hard work (13.       Para 4.2.).

The Commission was of the view to equalize the position of women with men in the case of intestate succession. But simultaneously it reiterated that while enabling the female’s parents to inherit the self acquired property, her husband’s parents should also be considered in the same footing. The Commission report establishes that the social ethos and mores of our community would not allow the complete exclusion of members of husband’s family from the list of heirs. Shortly, as per the recommendations of the Commission the female’s mother inherits her self-acquired property along with her mother-in-law. Similar is the case with respect to other members in her natal family. For example, the brother of a female is entitled to inherit her self-acquired property together with her husband’s heirs.

The report of the Commission is undoubtedly a progressive one which at least recognized the plight of women at the time of intestate succession and made some remarkable changes.

Conclusions

Personal laws are governed by the rituals, spiritual embodiments and ties of a particular community. It is obvious that the law makers should consider these elements at the time of framing a law. At the same time, it is mere rigmarole to say that the religious and social concepts which existed earlier should be administered, and followed strictly in the post modern society which is drastically undergoing frequent changes. Personal laws should be refreshed and revamped timely in tune with the transformation of society.

The Law Commission has pronounced certain progressive and revolutionary recommendations which if adopted, will altogether revise the prevailing pattern of intestate succession of females. Moving further forward from what the Law Commission has suggested the necessity of treating the husband’s family in parlance with the female’s own family needs reconsideration. Observing through the lens of gender equality, granting equal rights to the husband’s family seems to be brazenly inappropriate. At the time of intestate succession of a male, his wife’s parents do not have any relevance and cannot be seen anywhere in proximity. At the time of marriage or later they are enjoying the fortunes which their wives bring home as stridhana or as partitioned property. There may be exceptions for all these arguments but that does not invalidate the rule. This is the common phenomena which take place in a normal Hindu family system. In spite of all these, if the husband’s family is again given predominance it is sheer injustice to the female and her family. The entire group of husband’s heirs howsoever remote have been made to inherit wife’s property, but she is not entitled to inherit from the former. These remote heirs will go with her property and will be preferred above her parents. An analysis of these provisions shows the relegation of the inheritance rights of a woman to a very inferior position. The laws have created inequities in the context of fast changing social needs (Supra n.7, p.291.).The female’s parents are also suffering from an implied discrimination only because they gave birth to a female child. If it was otherwise the mother would be entitled to the whole property in the absence of spouse and children. It will be more just if the parents of the female alone become entitled to her self- acquired property in the absence of her husband and children. The Commission has also pointed out that if a female is not happy with these rules then very well she can write a will during her lifetime (Para 5.7.). Death is one of the most unexpected events which visit a person in the most unforeseen time. So we cannot always justify the application of this provision on the ground that a female may write a will during her lifetime. It is not a valid excuse to rely upon.

Many legal scholars have stressed upon the need to change the law but till now it has not been amended (For example, Prabha Sridevan, a former Judge of the Madras High Court and Chairperson of Intellectual Property Appellate Board has pointed out this issue in her article “A Law that thwarts Justice” in The Hindu dated June 26, 2011.). The National Commission for Women has recommended for the complete deletion of Section 15 from the Act (http://ncw.nic.in/frm Report Laws 19.asp.). In midst of all these protests it is not fair for the legislature to ignore such a serious issue which will ultimately affect the basic principles on which our society stands. We have a Constitution which promotes positive/protective discrimination for women. It not only promotes gender equality but also preaches for creating laws for the development of socially excluded groups including women. By keeping silent over this issue for past many years our legislature is impliedly promoting gender discrimination which goes against the fundamental principles of our legal system. It is high time to amend the concerned section as it serves as a great injustice to the whole woman community in the country.

The Victim's Right of Appeal and its Statutory Anomalies

(By John S. Ralph, Advocate, Kochi)

When  does  an  appeal lie ?

In criminal matters appeal lies only as provided by the Cr.P.C . Chapter XXIX that starts with Section 372 says “No appeal lies unless otherwise provided.” Appeal is a statutory right. In the era of trials by jury, appeal was a luxury. The post constitutional changes made it a statutory right.

But revision is a discretion. Reading of Section 403 Cr.P.C makes it clear by declaring that as a matter of right none of the parties can say that he may be heard either personally or through a pleader.

Maintenance of public tranquility by preventing crimes and punishing the delinquents is the duty of the State being imparted through the criminal justice rendering system. Hence an appeal against acquittal is a prerogative of the State.

Is  the  State’s  privilege  taken  away ?

By the amendment in Cr.P.C dated 31.12.2009, a proviso has been added to Section 372 Cr.P.C wherein the victim is given a right of appeal to the court to which an appeal lies from a conviction. Before the amendment, all appeals against acquittals have to come to High Court under Section 378 Cr.P.C

The right to move an appeal against acquittal was reserved to the State since it is the sponsor of the prosecution in the trial court. It is presumed that the accused is innocent until the contrary is proved. An acquittal fortifies this presumption and that is why the right to appeal was reserved with the State and not to the victim. But at the same time it does not mean that the victim has no right at all, the remedy lies in revision.

The  difference  between  appeal  and  revision

Though the powers of revision are more or less concurrent with that of an appeal, the revisional court has no power to reverse an order of acquittal and to convict the accused. If it feels so, it can only remand the matter to the trial court for a further inquiry or retrial as mentioned in Section 386(a). The power to find him guilty and pass sentence, mentioned in the last limb of the same section, is taken away by the operation of Section 401(3) Cr.P.C. Needless to say, in such cases the accused will get a fresh chance to defend.

This limitation of the High Court in disturbing an acquittal while entertaining a revision is clearly stated in Section 401(3) Cr.P.C. while dealing with the powers of revision :

"Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.” 

In India, auterfois convict is a constitutional right under Art.20(2). But not auterfois acquit. But it is a statutory right coming under Section 300 Cr.P.C).

In the new amendment the victim can approach the appellate court in appeal. And the appellate court can reverse the finding and convict the accused.

Will  the  new  right  operate  retrospectively ?

The aforesaid right of the victim has created a new right to the victim with a corresponding liability to the accused. Hence it cannot operate retrospectively. An offence committed before 31.12.2009 has to be treated separately from one committed after that. In the former case on the date of offence the victim had no right of appeal and if he comes through the door of revision, the accused will get the chance of a further trial in which he can answer the incriminating things that prompted the revisional court to order a retrial. But at the same time had it been an appeal by the State Government against the acquittal the same court (High Court) could have convicted the accused.

Logically it may not sound correct. But in a rule of law, country like that of India, logic is replaced by rules of the statute and rules of specific exclusions. When the statute says that “there is no right of appeal to the victim and that the revisional court cannot reverse an order of an acquittal and convict” the logical correctness of the same is beyond discussion and is restricted by statutory guidelines. And this is also for the reason that in order to send a person to prison by curtailing his personal liberty, there should be a clear “procedure prescribed by law” as mentioned in Article 21 of the Constitution of India.

The  legitimate  expectation  of  a  delinquent  and  the  protection  under  Article 21

After the amendment, against the order of an acquittal passed by the trial court, the victim can prefer an appeal either to Sessions Court or to the High Court as the case may be depending upon the forum to which an appeal would have been preferred against conviction. So if the date of offence is before 31.12.2009, it cannot be said that the victim has a right of appeal if the order of acquittal is passed after that date since on the date of commission of the offence, there was no right of appeal for the victim.

One cannot assume that the accused had a threat of getting a conviction, on the strength of a subsequent amendment, on an appeal not preferred by the State and decided by the highest forum of the State that is the High Court. In such cases i.e., before 31.12.2009, on the date of offence he had a right of another trial before getting a conviction in case the revision was filed by the victim. This is a matter of right and liability. So it cannot go retrospectively with a prejudicial effect on the accused and his golden presumption of innocence. It will also violate the constitutional protection under Article 21 since there was no procedure established by law for enabling the victim to prefer an appeal against acquittal and bringing a conviction for the accused. 

Now the  courts  are  mechanically  entertaining  appeals  from  the  victims irrespective of the date of commission of offence. This is not correct since it adversely affects the right of the accused and hence cannot operate retrospectively.

The  Statutory  anomalies

A careful reading of newly added proviso to 372 will show that it is badly drafted. The words occurring therein “and such appeal shall lie to the court to which an appeal “ordinarily lies” against the order of conviction against such court” is confusing at times.

As per section 374 Cr.P.C a person convicted by an Assistant Sessions Judge for a period of more than seven years has to go in appeal to the High Court. But where the sentence is for a term less than seven years, the appeal goes to the Sessions Court. So, as far as a trial before an Assistant Sessions Judge is concerned, there is no court to which an appeal lies “ordinarily”. It depends upon the term of sentence passed on conviction. Hence when the matter ends in acquittal, the forum for appeal cannot be ascertained. The new enactment is silent on the forum to which an appeal lies against an order of acquittal passed by an Assistant Sessions Judge. One cannot assume that since it is also a Sessions Court, the appeal goes to the High Court. As per Section 10 Cr.P.C, an Assistant Sessions Court is a “Subordinate Court” to Sessions Court. (Though the word used therein is “judge” it is to be read as a synonym for “court”) And prudence compels an appeal to the Sessions Court since that is the lowest forum to be approached first. The statute must clarify the same.

Two  Appeals  from  the  same  judgment  of  acquittal !!

Even after the new amendment, the right of appeal by the State is not deleted from the statute and hence the possibility of two appeals, one by the victim and the other by the State also cannot be ruled out. It is not a matter of ignorance of the pendency of the other appeal. A point not raised by the State can be raised by the victim in the appeal preferred by him and vice versa. It is true that both these appeals can be heard by the High Court. But since the State Government’s right of appeal lies to the High Court alone, it can only go there in appeal. But at the same time the victim has to go to the Sessions Court since an appeal “ordinarily” lies to that court from a conviction as provided in the newly added proviso to Section 372. This anomaly cannot be cured.

To  which  court  lies  the  appeal  against  conviction ?

If the Sessions Court reverses the finding of an acquittal and passes an order of conviction the accused will get an opportunity of appeal to the High Court. But if it is the High Court that reverses the finding and passes a conviction, the accused will not have a right to appeal u/S.379 Cr.P.C except in cases where the sentence passed is more than 10 years. There are offences in the Penal Code which carries such punishments but is triable by the Magistrate Court. In such offences, the forum of appeal against an acquittal assumes importance to the accused. If it is before the Sessions Court, an appeal lies to the High Court. But if it is before the High Court and the sentence is less than 10 years, no appeal lies to the Supreme Court as a matter of right.

Barring these anomalies the right of the victim to file an appeal against conviction is a pacifier to the victim and they need not be at the mercy of the prosecutors who has to recommend an appeal against an acquittal.

Conclusion

A.  The new right of appeal by the victim should arise only with regard to the offences committed after 31.12.2009. In other cases, the victim’s right should lie in revision.

B.  The statute must clarify the forum of appeal in cases of acquittal passed by the Assistant Sessions Court since it has no court to which an appeal against conviction lies “ordinarily”.

C.  The statute must clarify the procedure to be followed in cases of simultaneous appeals preferred by the victim and the State Government.

111th Amendment To The Constitution of India -- A Step In The

Right Direction to Revamp the Co-operatives

(By R. Muralidharan, Deputy Registrar (Planning & Legal), 

Co-operative  Department, Puducherry)

The 28th December 2011 is certainly a red letter day in the annals of the co-operative movement as the Parliament passed the crucial Constitution (111th Amendment) Bill to insulate about six lakh co-operative societies from political and government interference and to strengthen the co-operative movement. The amendment will grant citizens a fundamental right to form co-operative societies and allow for voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

The first step came in the form of the Constitution (106th Amendment) Bill, 2006 and it was referred to the Parliamentary Standing Committee on Agriculture for examination and report. The Standing Committee solicited the considered views of the State Government and Union Territories as co-operation is a State subject. After considering the views, the Constitution (111th Amendment) Bill, 2009 was introduced in the Lok Sabha by the Minister for Agriculture on 30th November 2009. The Bill was referred to the Department related Standing Committee on Agriculture (Chairperson: Shri Basudeb Acharia). The Bill was approved by the Lok Sabha and was passed by the Rajya Sabha on 28th December 2011. The 111th Amendment is certainly an improvement over the 106th Amendment Bill, as it has considered the views expressed by the States and Union Territories. The amendment is inserted as Part IX B of the Constitution (after Part IX A - The Municipalities) and to contain Articles 243 ZH to 243 ZT. Art 243 ZH contains definitions.

The object of the amendment, as set out in the objects and reasons, may be stated thus “The co-operative sector, over the years, has made significant contribution to various sectors of national economy and has achieved voluminous growth. However, it has shown weaknesses in safeguarding the interests of the members and fulfilment of objects for which these institutions were organised. There have been instances where elections have been postponed indefinitely and nominated office bearers or administrators remaining in-charge of these institutions for a long time. This reduces the accountability of the management of co-operative societies to their members. Inadequate professionalism in management in many of the co-operative institutions has led to poor services and low productivity. Co-operatives need to run on well established democratic principles and elections held on time and in a free and fair manner. Therefore, there is a need to initiate fundamental reforms to revitalize these institutions in order to ensure their contribution in the economic development of the country and to serve the interests of members and public at large and also to ensure their autonomy, democratic functioning and professional management.”

It states further “With a view to bring the necessary reforms, it is proposed to incorporate a new Part in the Constitution so as to provide for certain provisions covering the vital aspects of working of co-operative societies like democratic, autonomous and professional functioning. A new article is also proposed to be inserted in Part IV of the Constitution (Directive Principles of State Policy) for the States to endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. The proposed new Part in the Constitution, inter alia, seeks to empower the Parliament in respect of multi-State co-operative societies and the State Legislatures in case of other co-operative societies to make appropriate law, laying down the following matters, namely: -

(a) provisions for incorporation, regulation and winding up of co-operative societies based on the principles of democratic member-control, member-economic participation and autonomous functioning;

(b) specifying the maximum number of directors of a co-operative society to be not exceeding twenty-one members;

(c) providing for a fixed term of five years from the date of election in respect of the elected members of the board and its office bearers;

(d) providing for a maximum time limit of six months during which a board of directors of co-operative society could be kept under supersession or suspension;

(e) providing for independent professional audit;

(f) providing for right of information to the members of the co-operative societies;

(g) empowering the State Governments to obtain periodic reports of activities and accounts of co-operative societies;

(h) providing for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on the board of every co-operative society, which have individuals as members from such categories;

(i) providing for offences relating to co-operative societies and penalties in respect of such offences.”

Embodiment  of  the  Amendment

A new Directive Principles of State Policy states that the “State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.”

The State legislature shall specify the number of members of the board of directors of a co-operative society. The number is limited to 21. The term of the board is for a period of five years. The term of the office bearers shall be coterminous with the term of the board. On every board of a co-operative society, one seat shall be reserved for a person who is a Scheduled Caste or Schedule Tribe and two seats shall be reserved for women. The board may fill a casual vacancy on the board by nomination from the same class of members if the term of office of the board is less than half of its original term.

The election of members to the board must be conducted before the expiry of the previous one. The superintendence, direction and control of the preparation of electoral roll and conduct of election shall vest with the authority, as provided by the State.

The State legislature shall make provisions for co-opting any person having experience in the field of banking, management, finance or specialization in a field related to a particular co-operative society as members of the board. A maximum of two people can be co-opted to the board. The number of such co-opted members, not exceeding two, shall be in addition to 21, specified above. The co-opted member would not have the right to vote in any election of the co-operative society or be eligible for election as Chairman, President, Vice-Chairman or Vice-President.

The board of a co-operative society can be superseded in case of (a) persistent default; (b) negligence in the performance of its duties; (c) commission of any act prejudicial to the interest of the co-operative society or its members; (d) there is a stalemate in the constitution or function of the board; or (e) the general body has failed to conduct the elections as per the required procedure.

A board cannot be superseded or suspended for more than six months. However, a society carrying on banking business may be superseded or kept under suspension for a maximum period of one year.  In case a board has been superseded, the administrator appointed to manage the affairs of such a co-operative society shall arrange for conducting elections within the specified time period. The board of a co-operative society which does not have any shareholding or guarantee or loan or financial assistance from the government cannot be superseded.

The provisions of the Banking Regulations Act, 1949 will be applicable to banking co-operative societies.

The State is to make provisions for maintenance of accounts and conduct of audit of co-operative societies. It shall lay down the minimum qualifications of auditors or audit firms. The auditor is the appointed by the general body of the societies from the panel approved by the State. The accounts shall be audited within six months from the close of financial year. The audit report of the apex societies shall be laid before the State Legislature.

The co-operative society shall conduct the annual general body meeting with six months from the close of the financial year. The State shall also make provisions to ensure participation of members in the management of societies, providing minimum attendance of meetings and utilizing the services of the societies. The State shall impart co-operative education and training to members. Specified reports are to be filed on the important activities of the societies within six months from the closure of the financial year.

The State Legislature may define the offences and penalties related to co-operative societies. An offence would be committed if (a) a co-operative society files a false return, (b) wilfully disobeys any summon or requisition issued under the State Act, (c) any employer who, without sufficient cause, does not pay to the co-operative society the amount deducted from an employee within a period of 14 days, (d) any officer who wilfully does not hand over custody of books, accounts or cash of a co-operative society to an authorized person, and (e) any person who adopts corrupt practices before, during or after the election of board members or office bearers.

Any provision inconsistent to the provisions of the 111th Amendment shall continue to be in force until amended or repealed by the State Legislature or until expiration of one year from such commencement, whichever is less.

States  to  Act

To achieve the objectives of the amendment the ball shall be kept rolling by the State Legislature and a duty is cast on the following dimensions.

•  Make provisions for incorporation, regulation and winding of co-operative societies.

•  Provide reservation of one seat for SC/ST and two seats for the women in the board.

•  Co-option of experts in the board.

•  Make laws for superintendence, control and conduct of election on the authority.

•  To lay down the conditions of service of the administrator.

•  Make provisions on maintenance of accounts by co-operative societies, lay down minimum
   qualifications 
   of the auditors/audit firms and prepare panel of auditors/audit firms.

•  To provide access to every member to the books, information and accounts of societies.

•  To ensure participation of members in the management of the societies, minimum attendance in the 
    meeting and utilization of minimum level of services of the societies by the members.

•  Impart co-operative education and training to members.

•  Make provisions for offences and penalties.

•  Make law in consistent with the provisions of the 111th Amendment in a time bound manner.