Lest We Forget – Some old Words Connected with Land and Land Tenures

(N. Subramaniam Advocate, High Court of Kerala)

In days of yore, Jamabandhi used to be conducted every year end.  The process was this. Jamabandhi is an annual settlement of every taluk which is conducted at the end of each revenue year and before the commencement of the succeeding one by the Collector or the Revenue Divisional Officer.  At this annual settlement, the village and taluk accounts are examined and among other things a fresh stock is taken as to the extent of lands held by each ryot and the proper assessment payable by him on such lands.  It is at this stage, that remissions are confirmed and over and under assessments checked with a view to see that justice is done and the village officers are free from corruption or other misconduct.  We have already seen that a ryot is at liberty to acquire new lands, relinquish old ones, or alienate the lands standing in his name; and when such acquisition, relinquishment or alienation takes place, the land revenue payable by the ryot will necessarily vary and it is therefore, only just and proper, that the Government should ascertain before the commencement of the next revenue year, the exact amount payable by a ryot and make proper demand for that amount.  The patta, which may be roughly described as a bill for the assessment due to the Government, is issued only after Jamabandhi.

Patta:-

It is piece of paper issued by the Government, through the village accountant to each individual ryot, specifying the extent and nature of the lands held by him, their survey number or numbers, their classification and lastly the amount or amounts of kist payable upon the several lands.  It is, so to speak, nothing more than a mere bill, issued to the ryot, so as to put him on notice as to the extent of his liability before the demand is actually made.

The question has been sometimes discussed as to the exact scope and importance of a patta; that is to say, whether it could be called or construed to be, in any sense, a document of title.  It was laid down as early as, I Moore’s Indian Appeals  by their Lordship of the Judicial Committee in Freeman v. Fairlie that a patta granted by Collector is not a muniment of title but at best only an evidence of holding or possession according to the fiscal arrangement of the Government.  The case was of course one from the Province of Bengal, but there is hardly anything peculiar to that province, which would make the ruling inapplicable to all States.  In fact, that ruling has been cited and followed by Madras High Court in a number of later cases namely ILR 26 Mad. 286 at 292 Secretary of State v. Kasturi Reddi; ILR 29 Mad 461 at 467 Muthu Veera Vandayam v. Secretary of State and Secretary of State v. T.V. Raghava Chariar.  In the first of these cases Bashyam Iyangar J. expressely calls it mere bill and says that it does not and cannot convey any title to the property.

The nature of a Patta came up for consideration in a somewhat different way.  There, a person purported to create an equitable mortgage of his properties by depositing with the mortgage of his relating to certain lands belonging to him.  The question arose, whether the patta was such a document of title by the deposit of which in the city of Madras a mortgage could be validly created under section 59 of the Transfer of Property Act.  Their Lordships the Chief Justice and Justice Srinivasa Iyengar held, though a patta is not a title deed in all senses of the expression and for all purposes, yet for the creation of an equitable mortgage it was a sufficient document of title, because, all that was requisite for such a purpose was the deposit of some deed evidencing one’s title coupled with an intention to create a charge on the properties referred to in the deed  (ILR 48 Mad.454 (The Official Assignee of Madras v. Basu Deva Narayan Badri Narayan Doss).  The soundness of this decision may be open to doubt, but even assuming that it is correct, there is nothing in it to show that they meant to part from the ruling in the earlier cases.  So then, we may take it, that as the authorities stand at present, a patta is not a title deed, but can at best be only an evidence of possession or enjoyment.  But this evidence by itself is not entitled to much weight even as regards possession, because, as we shall presently see, it is quite possible now that the patta stands in the name of one person, while ownership is in another and the possession and enjoyment is in a third.  However, the Government having already taken steps to remove these anomalies as far as possible it is hoped, that the object will be achieved in the years to come, when probably the importance of patta as evidence of possession may considerably increase.

In a secondary sense, the term patta is also used to signify not the piece of paper issued, but the estate or the lands referred to or comprised in the paper.  Thus for instance it is said, the extent of patta number 44 is 20 acres and 30 cents, or the assessment due form that patta is Rs.100.

The counterpart of patta in the Collector’s register is called chitta.

It is highly desirable that the owner of a property is also the registered pattadar in regard to that property; and it has been the policy of the Government from very early times to see that this object is accomplished, as far as possible.  The anamoly of the ownership being in one person and the patta standing in another’s name is mainly due to the fact, that when the property is transferred to or devolves upon another, the party or parties interested, do not take care to have the patta also transferred to the name of the transferee or the successor as the case may be.  The result of such anamoly is sometimes serious.  Supposing the real owner does not pay the kist, the amount will be realized from the pattadar, if necessary, by the sale of his holdings, and he will not be heard to say, that he is not the real owner of the property.  Similarly, if the pattadar makes default in respect of the kist payable by him in regard to lands other than the one transferred to another included in his patta, the land which has been transferred to the other still continues to be liable for sale for such default, in spite of the transfer.  For, as we have already seen in dealing with the separate Registration Act in regard to Estates, the Government will look to the pattadar and to nobody else for the payment of their dues.

The cases of transfer or devolution necessitating a change in the patta may be one or the other of the following : (1) Private or voluntary transfers; (2) Compulsory or involuntary transfers; and (3) Succession or devolution on the death of another.

In the case of private or voluntary transfers, the consent of both parties is generally necessary for a corresponding transference of patta.  If one of the parties object, the Collector will ordinarily make an inquiry into the validity of the objection; and if the objection is unfounded, he will order the necessary transfer of patta; else, he will direct the parties to settle their rights by suit or otherwise in a civil court.  If, of course, both parties consent, there will be no difficulty and the patta will be transferred as a matter of course.  Now, in order to avoid disputes and objections of the kind above referred to, it is now ordered that the registering officers, whenever transfers of property come up for registration before them, should obtain the signatures of both the parties to the transfer in a form called the patta transfer form and send it on to the revenue authorities; where either of the parties absent, he may receive an application for the transfer signed by such party.  If, however, the parties refuse or are un willing to execute the application, the registering officer shall by himself prepare a notice of the transfer in the form prescribed and send it on to the revenue authorities.  Thus an automatic transfer of the patta is ought to be effected, by means of this process.  But, as will be evident, the above procedure will not be of any use in regard to private transfers which are not registered, that is to say transfers for small values, and transfers by unregistered wills.

Under the head of compulsory or involuntary transfers come transfers by decrees of courts and transfers by revenue sales; we may also add, the decrees which declare the disputed rights of parties.

In these cases, on the production of the decrees or the certificates of sale or certified copies thereof accompanied by an application signed by either party, the Collector or the revenue officer empowered in this behalf will order the transfer of patta, even though the other party thereto may not express his consent in the application, and even though he may raise an objection to the transfer.

As regards the devolution by heirship or survivorship, the village officials, especially the Kurnam is enjoined to report the matter to the Tahsildar or the Deputy Tahsildar and get the transmutation done at the earliest time.

Further details regarding these transfers may be found in the Board’s Standing Orders No. 31.

Sometimes we have what are known as joint pattas, that is to say, pattas issued in the name of more than one person.  The issue of joint pattas are generally discouraged, but, when on the ground of inconvenience or impossibility, property has to be kept undivided among the co-owners, then, joint pattas have necessarily to be issued.  For example, where a private tank is owned by a number of persons, it is not possible to divide it by metes and bounds; similarly where properties of a deceased Hindu are owned by several co widows, it may be very inconvenient to divide the same.  However, even in those cases, the pattas are sometimes issued in the name of one of the co owners, who probably happens to be the managing member.  So too in the case of a Joint Hindu family, though the property belongs to many, the patta stands usually in the name of the father, if there is one, or in the name of eldest member who is the manager.  In these matters, therefore, there is no hard and fast rule and only when parties are anxious that separation is done. Sometime back, there was a limit to the smallness of the holding for the purpose of separate registration.  That restriction is now taken away, and one is entitled to get his land separately registered in the Collector’s registers, however small the land may be.

Payment of Ransom to Pirates, Whether Opposed to Public Policy?

(By V.B. Hari Narayan*, Advocate, High Court of Kerala)

When a vessel is captured by pirates, can it be considered as irretrievably lost in the context of Marine Insurance Act, 1908 and whether payment of ransom to pirates is against English law are the two interesting questions considered by the UK Court of Appeal (Civil Division) in the recent decision in Masefield AG  v. Amlin Corporate Member Ltd. (2011) EWCA Civ.24. 

Facts

Pirates seized the vessel Bunga Melati Dua on 19 August 2008 in the Gulf of Aden while she was en-route from Malaysia to Rotterdam. The vessel was then forced to anchor off the coast of Eyl in Somalia territorial waters. During the course of the hijacking, one of the crew member was killed by the pirates. The ship owners (MISC), entered into negotiations with the pirates soon after seizure following a ransom demand in excess of US$2 million for the safe release of the crew, vessel, and her cargo.

While negotiations were in progress, on 18 September 2008, the appellant (Masefield, who owned two parcels of bio-diesel loaded onboard Bunga Melati Dua) served a notice of abandonment on the respondent (Amlin Corp. - the insurer of the parcels of biodiesel). The respondent declined the notice of abandonment but the parties agreed that proceedings should be deemed to have commenced on the date of issue. The Vessel was later released on payment of US$2 million as ransom.  The claimant apparently was not involved in the negotiation process or payment of ransom.  Following the eventual release of the vessel on 2 October 2008, after a brief stopover in the port of Djibouti, for a crew change and damage assessment, Bunga Melati Dua arrived in Rotterdam on 26 October 2008. The cargo was intact in original load port condition and had not deteriorated due to the delay, but unfortunately it had missed its prime market in the meantime. The market for bio-fuel is seasonal; hence the claimant had to store the cargo until the following year. Eventually it was sold for a price significantly less than its insured value. The assured gave credit for the recovery made on re-sale, less expenses, and claimed the balance. 

The  Issue

The appellant claimed for an actual total loss, contending that they were ‘irretrievably deprived’ of their cargo when the Bunga Melati Dua was seized by pirates. The appellant further contended that despite the cargo being subsequently retrieved upon the payment of ransom; such payment was undesirable from the point of view of public policy and universal principles of morality. In addition the appellant also argued that it is not the duty of the assured to preserve his property from loss by succumbing to a ransom demand. Therefore, the parcel of cargo ought to have been treated as ‘irretrievably lost’ and the only means of recovering it was to do something which an insured could not reasonably be expected or required to do. On the other hand the respondent contended that the cargo cannot be said to have ‘irretrievably lost’, going by the statutory test prescribed for an actual total loss (ATL) under S.57(1) of the Marine Insurance Act, 1906 as there was a good chance of negotiations for payment of ransom being fruitful.

The  decision

The Court of first instance, agreeing with the insurer’s submission dismissed the claim. In appeal by the claimant the Court of Appeal held unanimously that the appeal must be dismissed. Lord Justice Rix , giving the judgment for the Court, disagreed with the appellant’s submission and found that, when there is a strong likely-hood for the vessel being released after the payment of  a nominal  ransom (nominal in relation to the value of the vessel and her cargo) to the pirates, which will secure the safe recovery of the vessel and her cargo, there is no deprivation of the property. The Judge was persuaded to take such a view based on previous successful release of vessels under seizure by Somali pirates and the statement given by the expert witness. Thus according to Lord Justice Rix, the assured was at no point of time irretrievably deprived of its cargo so as to constitute an actual total loss (ATL) but it was more of a typical wait and see situation.

The appellants’ reliance on Dean v. Hornby ((1854) 3 El & Bl 180) was found by the Court to be of any assistance as there is no legal rule that seizure by pirates will automatically amount to an ATL. However, Rix LJ observed that a vessel seized by pirates may amount to an ATL, when the seized vessel is being utilised for the pirates’ own use and there is no prospect of finding or recovering the vessel or her cargo.  

On the grounds that payment of ransom is against public policy and that the property being held to ransom “must be considered to have been irretrievably lost, physically and/or legally, where the only means of recovering it was to do something which an insured could not reasonably be expected or required to do”: Rix LJ held that it is the role of the Parliament and not “the idiosyncratic inferences of a few judicial minds” to determine what is best for the public. Placing reliance on the decision in Egerton v. Brownlow ((1853) 4 HLC 1), it was concluded that payment of ransom by ship owners to secure the safe return of their property is not against the UK or International law.

 The Court of Appeal went on to consider whether the taking of the vessel and cargo, even with an intention of returning them on payment of a ransom, constitutes theft under English law. This point was dealt with quickly and the Court concluded that on facts since there was no intention to permanently deprive the owner of the property, it cannot be treated as theft.

Masefield’s further argument that an insured was not under a duty to sue and labour (Section 78(4) of the Marine Insurance Act, 1908) by paying a ransom, as something not expected of it, was also rejected. As Rix LJ put it, “the fact that there may be no duty to pay a ransom” does not mean there is any obligation not to make such payment. The remainder of the judgment considered the question of public policy in relation to ransom payment. The Court of Appeal held that “there is no legislation against the payment of ransoms, which is therefore not illegal.” The learned Judge went on to identify that “there is no universally recognised principle of morality, no clearly identified public policy, no substantially incontestable public interest, which could lead the courts, as matters stand at present, to state that the payment of ransom should be regarded as a matter which stands beyond the pale, without any legitimate recognition.”

Conclusion

The judgment of the Court of Appeal will be welcomed by those involved in the shipping industry, marine insurance and legal field. Whilst protagonists in favour of making ransoms illegal will continue to attract the moral dilemma of paying ransoms to Somali pirates for the safe release of vessels, crews and her cargoes, the reality is that as long as there remains no practical alternative for ship owners and their insurers, the practice will continue. Above all, ship owners undoubtedly have a moral obligation to secure the safety of life of their crew members under any circumstances and paying ransom is the only way out as they virtually  have no other options to safe guard their crew. In addition it is the duty of the state to protect the life and property of every citizen. Contrary to the policy of most countries where ransom payment is not considered illegal, countries like South Korea and United States of America have maintained a “No negotiation with pirates” attitude making ransom payment illegal. 

Cargo insurers will be reassured that the Court of Appeal dismissed the claim for an actual total loss at the time of capture; a reversal of the first instance judgment could have resulted in cargo underwriters being faced with a significant number of total loss claims from assureds and becoming owners of valuable cargoes currently being held by the Somali pirates. 

The fact that payment of a ransom has been held to be recoverable as a sue and labour expense in Royal Boskalsis Westminster NV v. Mountain ([1999] QB 674) was thought by Mr Justice Steel in the trial court to be a strong indication that the Claimant’s position was misconceived, was approved by the Court of Appeal.

The Court went on to state that, pirates are not classified as terrorists and reiterated that the payment of ransom is a sue and labour expense under a Marine Insurance policy. It is arguably implicit in the judgment of the Court of Appeal in this case that ship owners and cargo owners must exercise whatever options they may have under  Section 78(4) of the Marine Insurance Act, 1906, to meet the demands of  pirates, in order not to break the chain of causation between peril and loss.

* LL.M (Southampton)

Beware Phishing

(By Rajesh V. Nair, Advocate, Thalassery)

Phishing is relatively unknown to India. But now a day it is coming out as crime in the advanced internet age. The phishing now defines as the fraudulent practice of sending emails purporting to be from reputable companies in order to induce individuals to reveal personal information, such as passwords and credit card numbers, online. The intention behind is to entice a person to get sensitive information such as passwords, usernames, login IDs, ATM PINs and credit card details, by camouflaged as a trustworthy person or business in an apparently official electronic communication such as an email or an instant message. The phishing attacks will then direct the recipient to a web page (mirror webpage) so exactly designed to look as a impersonated organization’s (often bank & financial institution) own website and then they cleverly harvest the user’s personal information, often leaving the victim unaware of the attack.

In India, the most common form of phishing is by email pretending to be from a bank, where the sinister asks to confirm your personal information/login detail for some made up reason like bank is going to upgrade its server. The customers who are unaware of the consequences fell pray to emails and send details to identity thieves. Phishing is a major concern in the contemporary e-commerce environment in India and will continue to be so because of the lack of awareness among the Internet users, who are new to the internet realm. Therefore, the awareness and customer education is the key here to fight the menace of the “Phishing” apart from mitigating or preventative measures. The law enforcement agencies, the legislature, and the industry should come together and coordinate in their fight against the menace of the Phishing.

In India, the Information Technology Act 2000 and its subsequent amendment cover    Phishing scenario. The 2008 amendment introduced section 66-C and section 66-D to deal specifically with identity theft and cheating by personation.Section 66-A deals regarding deception of origin of message also be attracted in a phishing action. Section 43-A which places body corporate, not be negligent in securing personal data. In Indian Penal Code, phishing can attract under the heads of cheating, mischief, forgery and abetment.

Now it is indeed common that most of people are having computer with internet facility in their houses. But these people don’t have sufficient awareness to handle the internet. These persons are quite vulnerable to phishing. In India we don’t have any agency to take proactive and consumer friendly monitoring as US and European have. In order to get in to trap of phishing one must not respond to any email asking the details of your account and personal information. Some emails are always desperate in their language and so eager to retrieve information from you. Kindly look the link provided because in the phishing email is a fake URL and by using your sixth sense, you would see that email address itself is bogus.

Check your credit card and bank account statements regularly and look for unauthorized transactions, even small ones. Report discrepancies immediately. Ensure that your system has the current security software applications like; anti-spam, anti-phishing, anti-virus and anti-spyware etc.

India is a developing country and should indeed ensure the security and effectively prevent phishing and further ensures safe keeping of the digital infrastructure and on line transactions and data integrity. Be careful of emails asking for personal information and other details.

Some Useful Information 

(Collected and Compiled by S. Subramaniam, Advocate, High Court of Kerala)

1. Baptism :

Is Baptism  a condition precedent to be a person professing Christian religion and whether there  can  be  unbaptised  Christian  for  the  purpose  of  Indian  Christian  Marriage  Act, 1972 ?

Section 3 of Indian Christian Marriage Act, 1972 gives the definition of “Christian” as meaning a person professing Christian religion. “Indian Christian” (Substituted for words “Native Christian” by Adaptation of Laws Order 1950) includes the Christian descendants of natives of India converted to Christianity, as well as such converts. “Baptism” (as stated in Halsbury 2nd edition Vol II Page 806 para 1469 and note(b)) is a sacrament by which a person is admitted into the Church of Christ. It is not only a sign and distinguishing mark of the Christian profession but also a sign of regeneration or new birth. Dictionary meaning of Baptism is "immersion in or sprinkling with water a sacrament”.

It would appear that there are no judicial decisions to show that a person cannot profess Christianity unless and until he is baptized.

It is true that under Canon Law, Baptism is necessary for a Christian.

The above question has been answered in AIR 1953 Orissa10 (Page 15) (K.J.B. David v. Nilmoni Devi)

The Kerala High Court on an exhaustive discussion of case law, speaking through Hon'ble Justice Sankaran Nair, has also said that baptism is not necessary to be a Christian (1992 (1) KLT 651- Leelamma v. Dilip Kumar). His Lordship has referred to (AIR 1918 All. 162 Mahram v. Emperor) (AIR 1924 Mad. 18(F.B.) - Pakiam Solomon v. Chelliah Pillay) and (AIR 1953 Orissa 10 - K.J.B. David v. Nilamoni  Devi).

The decision reported in 1992 (1) KLT 651, on a different point, has been found to have not laid down the correct exposition of law as reported in the decision reported in (1994 (2) KLT 387 (F.B.)  at para.25  George Sebastian v. Molly Joseph).

The writer has not come across any other later decision on the question of Baptism which is not necessary for being a Christian.  

2. Palimony:- Palimony is grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying her. (2010 (4) KLT 384 (SC) = (2010) 10 SCC 469 -Veluswamy v. Patchiammal). This decision refers to cases from California, New Jersy and (2010) 5 SCC 600 (para. 31) - Kushboo v. Kannammal). 

3. Legal Malice:- Something done without lawful excuse, and in disregard to the rights of others.(2010 (3) KLT  986 (SC) = AIR 2010 SC 3745 (Para 25 and 26) Kalabharati Advertising v. Hemant Vimalnath Narichania). Case law has been discussed in paragraph 25. Passing an order for an unauthorized purpose constitutes malice in law (AIR 2006 SC 182 = (2005) 6 SCC 776 - Punjab State Electricity Board v. Zora Singh). Under Land Acquisition Act, if a notification is issued under S.17 (urgency clause) with a motive extraneous to the statutory object of requiring the land for public purpose is mala fide and illegal. (AIR 1980 SC 319 - State of Punjab v. Gurdial Singh). This is also legal mala fides. Examples are aplenty.

Islamic Banking and Secularism -- Whether the Kerala

High Court Decision  Settles the Issue?

*(By Advocate Nikhil Balan, Guest Lecturer In Law, CUSAT & NUALS, Kochi)

Islamic  Financing  and  the  Writ  Petition

The concept of Islamic financing is yet to gain its momentum in India provided that the Reserve Bank of India presents an appropriate mechanism for the functioning of the system conducive to Indian financial structure. Having said this, the Hon’ble High Court of Kerala had signaled green to an Islamic financial institution in Kerala by dismissing a Writ Petition (public interest (2011 (1) KLT 807, WP (C) 35180 of 2009 (S), Order dated 3.2.2011 of Hon’ble High Court of Kerala, Dr. Subramanya Swamy & Anr. v. State of Kerala & Ors.)) filed by Former Minister for Union of India Dr.Subramanya Swamy challenging the Government of Kerala’s proposal to partner with an Islamic financial institution to invest money for the State industrial projects. The judgment that was delivered by a division bench of the High Court with Hon’ble Chief Justice Jasti Chelameshwar rendering the judgment for himself and for Hon’ble Justice P.R. Ramachandra Menon on 3.2.2011 has significance to not just the concept of Islamic banking, but more importantly to the issue of secularism and its development vis-a-vis Indian constitutional legal system.

The question that was posed before the Hon’ble High Court was not exactly on the feasibility of Islamic banking in Indian soil, but more so over a point on secularism, as to whether a State instrumentality that partners with an institution which follows one religion specific model in its functioning is against its constitutional obligations of it to be a secular State. The question as to permissible level of Islamic banking in India has been reverted back to R.B.I., for it is in the R.B.I.s jurisdiction, as to allow or not allow the practice of Islamic banking in India. The Hon’ble High Court has rightly decided not to interfere with that question of law. Welcoming that point, it is however, critical to examine as to the permissibility level that the Kerala High Court has drawn with respect to the state partnering with such an institution which follows Islamic law in its mode of business.

Understanding  Secularism -- What  India  and  the  West  has  to  Say

Secularism, indeed, is a very exciting phenomenon the ends of which is hard to meet, tough to realize and difficult to understand. India is mulling over this concept since independence more so because India has its own contribution to the institution of religion, but rarely has contributed to the issue of secularism which is more an input from the West. Indian secularism is indeed unique. It’s a blend of the west, with a savor of Indian civilization and its history. So it’s not purely Indian, and at the same time, not completely Western. In this context, the question that embarks today is how far India is secular? Is it the same secularism as is found in America, from where we have adopted the concept? Can it be said that Indian system do not support the concept of wall of separation as it exists in United States of America even after the Parliament has included the term secular in the Preamble of the Constitution? 

Secularism does not mean State is against religion. Being against would mean more of Marxian ideology i.e. “active hostility to religion” as Eugene Smith points out. Secularism can be easily defined as a concept which embodies three main relationships of three prime bodies; the state, the religion and the individual. It’s an intra relation between the state and the religion; also a relation between the religion and individual and finally the relation of State with the individual. Accordingly, when the State is to deal with the individual, it must not take cognizance of that individual being a Hindu, Muslim or a Christian. This means a citizen ought not to have a religion when looked at from the State’s point of view. But unfortunately, with religion being the dominant player in our nation, this principle had not received any of its charm in the Indian context, as has been in the West. When the State in reality accepts the religion and creates room for castes, minorities and reservation, which is its interference with the relation between individual and religion, the concept of secularism gradually evades. This eventually leads to the conclusion that the mighty arms of religion in India have over-shadowed the concept of secularism. Hence, this growth of India as a secular State had to be looked with much more caution because India is a State where religion is one powerful tool which has contributed highly to its development as a nation.

In contrast, United States is in the middle of adopting the wall of separation doctrine. The concept of wall of separation means that the Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof. In Mc Collum v. Board of Education the concept of wall of separation has been explained as a requirement to abstain from fusing functions of government and of religious sects, not merely to treat them all equally. India is not adopting this and prefers to adopt a practice wherein all religions are true and equal. Supreme Court has explained this attitude as benevolent neutrality (  S.R.Bommai v. Union of India (1994) 3 SCC 1.). While Indian approach has been positively to treat them equally, USA has been taking a negative approach by abstaining itself from any such interference, through the wall of separation doctrine. The U.S.A. ideology is mainly concerned of a separation but the Indian ideology is concerned more with the carrying together of the religions, since here we have a plenty of religions, and that religion is so much a part of the individual and, therefore, building of the wall of separation would hardly make any sense. Moreover, in order to shun the major threats of communalism, the State tends to show loyalty to all the religion, which as a result undermines the concept of secularism, but do not make the State purely religious at the same time. This shows a positive approach by the State as compare to the negative attitude in U.S.A. It can, thus, be arrived that State in fact supports religion in India, and not the concept of citizenship which finds place in the Constitution as India failed in bringing policies where it could subordinate religion and caste to citizenship.

Between  the  Lines  of  the  Judgment

The issue of Islamic banking and the State partnership has far reaching complications than as has been highlighted or rather ignored by the Court in this case. The decision rendered by the Hon’ble High Court of Kerala, however, cannot be said to be a foolproof welcome note to the Islamic banking for the reason that the judgment is lacking in most of the point as to the clarification that it meant to choose. The procedural hastiness in the formation of the Company, creation of this partnership with K.S.I.D.C. by non calling of tender in a record time of 3 months has been ignored by this Hon’ble Court by making mere observations. The concept of Shariah law has been very poorly discussed. No attempt has been made to understand what the particular Shariah law on banking is about, except for the remarks in paragraph 40 and 42 citing the law as “some shariah principles” and “certain principles of shariah law”. The explanation as to what “shariah compliant manner” given in paragraph 39 is only a basic understanding of what Shariah law in general is. The whole para is silent about the understanding of law that is to be followed by such companies. This is indeed the least expected from the highest court in a State and to pass judgments on such critical issues, based on poor understanding of the religious law. It must not be forgotten that it is the same general principles of Shariah law that is considered as barbaric when it comes to dealing with crime, which India has not agreed to adopt.

The Court has concluded by stating in para 44 that this activity of State is required to be treated as a secular aspect of a religious belief. Having said this, it is undeniably arguable on one hand that every religion has secularist principles in them. It is humbly submitted that most principles of religions are secular which can even be found in our Constitution in the form of equality, directive principles etc. State’s endeavour to improve health, family welfare, safety, recreation and general well-being of the citizens of the minority community can also be found on most religious books, but it cannot be said that those actions of the State would amount to patronizing any particular religion. So the thrust must not be in the State’s attempt in distinguishing between a religious activity and a secular activity. As stated earlier, the State’s attempt must be in balancing the three relations between the State, religion and individual. It can be culled out or derived that the test for secularism has to be in negative, as to see whether the State’s interference has in anyway an influenze over the people’s relation over the religion. If the State interference has a bearing on the individual’s relation with the religion, then it means that the state is promoting the religion. The secularism as understood in India and the partnership of State of Kerala with a religious institution which follows a religious custom in the partnered business is largely subject to the religious practice and religious sentiments prevalent in India. The effort of the Court must not be confined to distinguishing secular principles from religious activities, but has to be looked at from the point of India’s historical background and the role that religion in a nation like India, has contributed in its every day development as a secular nation.

Concluding  Remarks

It is undeniable that as a free society India is still Hindu favoured society, which is very clear from the Bhoomi pooja that was held at the inauguration of the new Gujarat High Court building, and which was validated by the High Court of Gujarat (Rajesh Himmatlal Solanki v. Union of India & Ors.  (2011) 1 GLR 782, W.P. (PIL) No. 2 of 2011, decided on 10.2.2011.) itself. Examples are even many. With India’s neighbours Pakistan, Burma etc. thriving much on religion, and being religious States, it must be seen with much anxiety, keenness and anticipation as to how India can sustain itself as not being Hinduistic and adopting the secular concept, which has more been a result of several compromises that had taken prior to independence and emergence of Pakistan as an Islamic State. This judgment can be worried as just another attempt to veil the historical developments in the due course of India’s progress to be a secular State, without touching the basic structure as laid in the Constitution.

India cannot be said to be completely secular in its character. Neither India nor U.S.A., which claims to be the originator of the concept is definitely absolute secularism prone. Neither could they be secular. Even in America the wall of separation does not exist to absoluteness. The tax-exemption to churches and prayers in houses before the session are examples of the not so absolute secularism. Either one way or the other a State has an interaction with the religion. Avoidance of religion would be communistic in nature, which today’s polity would not afford to bear upon. Just like its structure of Parliamentary-Presidential system, the secularism often is one quasi secular in nature, with Hinduism as its premiere ideology. By quasi secular it means having the secular character of separating the state from religion, but also at the same time being highly influenzed by the majority religious practices. The whole point of having minority religion system, the practice of reservation etc. are very clear examples of the same quasi secular nature. India definitely is not a religious State. At the same time any question on secularism must be answered with the historical background of Indian development as a secular State.