Aviation Accidents and Liability of Air Carrier A Relook at Abdul Salam's  case¹

(By A. Mohamed Mustaque, Advocate, MK Associates, Ernakulam²)

Onset of liberalisation and growing cross-border transactions throws challenges to the courts in India in the context of taking cognizance of issues having global ramifications. Even before the process of globalisation, consensus drawn through various conventions or treaties in relation to air transport, outer space, environment etc., were arrived at international community for economic, peace and social progress of the global community.  Though India is not a monist State, even in the absence of municipal laws, courts in India often with reference to Article 21 of the Indian Constitution infuse consensus arrived in the conventions or treaties into the domestic law. Therefore when court meets a situation of interpreting statutory provisions in Carriage by Air Act (hereafter 'Act')  like in the Abdul Salam’s case which arising from an aviation accident happened at Mangalore  is called up on to interpret lex situs  alongside of peremptory norms of wider genus evolved through Montreal Convention to bring “comity". Certainly learned single Judge while interpreting Third Schedule of the Act scanned history of development of international law on compensation payable to the crash victims and found that minimum compensation payable for injury or death is one lakh SDR. Division Bench however found that controversy surmounted on interpreting relevant provisions of the Third Schedule of Act and held that Act does not provide for payment of any minimum compensation by the air company for death or injury of a passenger in an accident. Decision not only arouses concerns in private international law but also in tortious liability principles of law.

Private  International  Law  Perspective

Passengers in international air carrier may belong to different nations. Bringing an action against a carrier arising from same accident in different jurisdiction available to such passenger would result in different compensation payable by the carrier. It would be impractical for international air carriers to have different liability regime on different routes across their networks. Further to prove --  wilful misconduct by the carrier under Warsaw Convention 1929 has led to repetitious, lengthy costly litigation through the judicial process. Therefore to avoid forum shopping and to bring uniformity in liability regime, international legal community through the service of ICAO³ adopted Montréal Convention for the unification of certain rules for international carriage by air. The Montreal Convention of 1999 was adopted by acclamation on 28 May 1999 and initially signed by 53 ICAO Member States. The Convention came into force in 2003. Even before the Montréal Convention at the Japanese initiative IATA inter-carrier agreement on passengers liability of 1995 was subscribed by many international cariers. Essential features of IATA agreement are a waiver of defences for personal injury and death claims up to100,000 SDR, creating a system of strict liability up to that amount, and a waiver of liability limits above100,000 SDR, not based on strict liability of the carrier, but on presumed liability that may be rebutted by carrier's proof of absence of fault (See page 73 chapter 5 of the Law and Policy of airspace and outer space, a comparative approach byP.P.Chaanppel.). Article 21 of the Montréal Convention reiterates minimum compensation based on strict liability as like under IATA agreement and beyond that amount based on fault. International legal community also underscores minimum compensation payable based on strict liability at the rate of one lakh SDR , see Article 10 of European Council Regulation No. 889/2002 of the European Parliament and of the Council wherein it provides for damage ups to 1 lakh SDR air carrier cannot contest claims for compensation.  See also one of the commentary on Montreal Convention refers to minimum compensation principle “quantum of compensation in case of death or injury of passengers: Convention removes the antiquated and unjustified limitation of liability for death and personal injury of passengers, it accepts a two tier system of compensation: up to SDR one lakh, the carrier is strictly liable and cannot exclude or limit its liability, beyond that sum the liability is based on fault (See M.Milde Liability in international carriage by air: the new Montreal Convention page 835.).”

Therefore viewing in the above backdrop Carriage by Air Act in India cannot be differently understood to mean that liability of the carrier is only to the extent of proved damages.

Tortious  Liability  Perspective

 Strict liability is often synonymously understood as absolute liability. Differences between two principles are narrow in case of strict liability, what is brought on land is not inherently dangerous, therefore defences of act of God, sabotage and plaintiff’s negligence could be pleaded. In case of absolute liability, what is brought on land is inherently dangerous and in such cases no defence at all is allowed (See p.766-767 Ramaswamy Iyer on Law of Tort.).In short difference is that there can be exception in strict liability and there cannot be exception in absolute liability.  Tortious principle of strict liability under the rule in Rylands v. Fletcher (1868 LR 3HL330.)often modified by statutory provisions with regard to compensatory damages by incorporating scaling down of damages on account of contributory negligence. Compensatory damages payable under the statutory provision depend upon the scheme and object of the statute. Strict liability or absolute liability fastened not necessarily based on any negligence sometimes arises for breach of duty of some kind(See P 201 of Tort law By Nicholas J Mcbride & Roderick Bagshaw.). In absolute liability there cannot be any exception on payment of compensation(See M.C. Mehta v. Union of India (Oleum Gas Leak case) (1987) 1 SCC 395.) . Difference between these two principles would place us to understand relevant provisions in Carriage by Air Act in better terms. Relevant rules of the Third Schedule of the Act are extracted here under:

Rule 17.(1) The carrier shall be liable for damages sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board  the aircraft or in the course of any of the operations of embarking or disembarking.

Rule 20.If the carrier proves that the damages was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or person from whom he or she derives his or her rights,  the carrier shall be wholly or partly exonerated from its liability to the claimant to the  extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of  that passenger.

 This  rule  applies  to  all  the liability provisions of these rules, including sub-rule (1) of  Rule 21.

Rule 21(1). For damages arising under sub-rule (1) of Rule 17 not exceeding one lakh Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

 (2) The carrier shall not be liable for damages arising under sub-rule (1) of  Rule 17 to the extent they exceed each passenger one lakh Special Drawing Rights  if the carrier proves that-

(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or

(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.

In the light of difference between absolute liability and strict liability the above provisions in Third Schedule can be deducted as follows:

I.      Air carrier is liable to pay minimum compensation of one lakh SDR based on strict liability for injury or death provided no contributory negligence is involved. To claim minimum compensation it is not necessary to prove fault or negligence. However there is an exception for strict liability to pay minimum compensation on proof of contributory fault.

II.     Air carrier is not liable to pay minimum compensation of one lakh SDR if the damage suffered on account of contributory fault as well. This is clear from the Rule 20 which states that Rule 21 (1) is subject to Rule 20.

III.   Liability of air carrier beyond minimum compensation is based on fault and there’s no upper limit.

IV.   In claims covered by contributory fault carrier is exonerated wholly or partly from its liability to the extent of contributory negligence involved in the damage.

No one can benefit from his own wrong. Keeping in mind minimum compensation payable which is a large sum in the Indian context Indian legislature had displayed remarkable craftsmanship to exclude the liability to pay minimum compensation on proof of Contributory negligence by incorporating Rule 20. Similar provision is absent in Montreal Convention or European Regulation. To my mind legal conundrum that arisen in this case is  due to equating claim as absolutely liability like under Section 140 of Motor Vehicles Act. No doubt upholding liability of payment of minimum compensation under Act, it ensures India's pacta sunt servunda for implementing Montreal Convention.

Agreeable Symmetry

(By Devan Ramachandran, Advocate, High Court of Kerala)

Let  the  punishment  match  the  offence

                                                        (Cicero)

Nearly every organized protest or strike these days is a stratagem for organized plunder, vandalism and depredation of public and at times private assets and properties.

Most often the destruction is wanton, indiscriminate and without cause. Willing claque, often mercenary, are exhorted by their handlers to violence against person and property for results beyond their comprehension, emboldened by the thought and more often than not the knowledge that they would not be held or found accountable for their flagitious actions. They are soldiers of fortune when transient ochlocracy prevails with the guarantee of safe exit and immunity from penal or tortuous implication or liability.

The concise but sententious order in Hemanth Kumar & Ors. v. Sub Inspector of Police & Anr.  (2011 (4) KLT 288) assumes momentousness with its sheer potential to deter fissiparous organizers and willful participants of such maraud and confutative agitations. Being required to deposit such sums as are equal or adequate to the damage caused by such vandalism for being enlarged on bail would certainly operate as the apposite prophylactic against future perpetration. This is the desideratum of the times for a puissant society. After all, to quote N.A.Palkhivala, democracy without discipline is democracy without a future.

The ratiocination is simple: The diversionist pays. The effect much more in the realm of deterrence than in tort. It is a war call against the shenanigans who choose willingly to vandalise and plunder, however novel his claim be to a right to do so, against the rule of law. This establishes Agreeable Symmetry between inconsiderate action and its ensuant liability.

To extraordinary circumstance we must apply extraordinary remedies said Napolean Bonaparte famously. The circumstance certainly extraordinary and compelling, presenting the leaven for imposition of drastic conditions, since the scourge of vandalism has proceeded unabated, becoming ubiquitous despite the statutory prescription in the nature of the Prevention of Damage to Public Property Act 1984, which received the assent of the President of India as early as in 1984. The Hon’ble Supreme Court has also accepted it as

“unusual situations which need to be provided for in the larger interest of the public” (See (2009 (2) KLT 552 (SC)). 

This is not the first time and certainly not the last that the attention of the courts were and will be engaged by such deleterious behavior. The Hon’ble Supreme Court had in 2007 taken suo motu cognizance of this affliction in the name of agitation when it ordered the Directors General of Police of certain States to file affidavits as to the action taken against the vandering offenders (see Destruction of Public and Private Properties, In Re (2007) 4 SCC 479). By its judgment in this matter reported in  (2009 (2) KLT 552 (SC) (In Re Destruction of Public & Private Properties v. State of A.P.), the Hon’ble Court accepted with hortative approval the recommendations of the Justice K.T.Thomas Committee and Mr.F.S.Nariman Committee, appointed by it to recommend the steps required to be taken to prevent such vandalism and to recover the damages from the perpetrators of such action, and had declared such recommendations as having become operative immediately as guidelines.

The plunder, pillage and maraud however continue in spite of these recommendations, primarily because the perpetrators believe that the legal system is in a state of lassitude and that they would not be made accountable for the perdition committed. It is here that the order of Justice K.T. Sankaran gathers paradigm relevance. The order, contrary to its critics, is not judging the accused but is judging their actions. The order even while judging the causal connection is not being judgmental of the accused.

The order has already been subject to public scrutiny and rightfully so. Opinions, as has been disclosed in the media, have been divided but not on account of the order to impose extraordinary conditions for bail per se but more on account on the argument that the accused may not be the actual perpetrator of the pillage and destruction. This argument indubitably is more speculative and conjectural than factual and should in no manner be employed to judge the purpose sought to be achieved by the order. To be faced with the certainty of being burdened with the sins of their transgressions if apprehended and incarcerated, would travel the length in deterring misguided and misdirected asocial adventurers.

The law is not so much carved in stone as it is written in water, flowing in and out with the tide.

          (Jeff Melvin)

Denial of Justice and State Responsibility under International Law

(By A. Mohamed Mustaque, Advocate, Mk Associates, Ernakulum)

This article is sequel to article written by  Senior Advocate P.K. Suresh Kumar under title Globalisation and the Judicial Sovereignty of India (2012 (4) KLT Journal p.18).The above article is in context of arbitration award passed by the Arbitral Tribunal in Singapore wherein India is directed  to pay compensation  under Bilateral Investment Treaty for the delay in Supreme Court in India to dispose  an appeal for more than  five years. No doubt  this would sent shudders down spine of any proud Indian as depicted by the author as nationalism and sovereignty of India  is identified by  its subjects with right to self determination. Learned author laments authority of an international arbitral tribunal to question the judicial function in a sovereign country. This article is in the above back drop.

Principles  of  State  Responsibility

The issues regarding State responsibility arises in the context of bilateral negotiated agreements or under the context of resolutions passed by UN General Assembly.  A state responsibility in a given context arises on principles of imputability. The concept of denial of justice is one of the oldest concepts of international law giving rise to state responsibility in international law ."A state is responsible for its own acts and omissions; and in this context state is identified with its governmental apparatus, not with population as a whole. If the police attack a foreigner, the state is liable, if the private individual attack a foreigner, the state is not liable, the governmental apparatus of the state includes the legislature and judiciary, as well as the executive, and it includes local authorities as well central authorities(Akehurst-s Modern Introduction to International Law p.257.)". Father of modern maritime law Hugo Grotius   a profound natural law philosopher  also  had advanced this concept.   Some of leading authors on this subject are also of the view that state will be held responsible for improper administration of justice by judiciary. “Denial of justice holds states responsible under international law for wrongful administration of justice regarding foreigners committed by the executive, legislative or judicial organs of the State. It includes improper administration of civil and criminal justice with regard to foreign persons, such as denial of access to courts, inadequate procedures, and unjust decisions” (Denial of justice in International Law by Jan Paulson, Cambridge University Press.).  International Law Commission's draft articles placed before UN General Assembly also make it clear that  state is responsible  for conduct of judiciary. 

“The conduct of an organ of the State shall be considered as an act of that State under international law, whether that organ belongs to the constituent, legislative, executive, judicial or other power, whether its functions are of an international or an internal character, and whether it holds a superior or a subordinate position in the organization of the State” (Article 6).

In 1929, the Harvard Research in International Law prepared a draft Convention on Responsibility of States for Damage Done in their Territory to the Person or Property of Foreigners (1929 Draft Convention), this was modified in the year 1961 at the request of U.N. Secretariat to attempt  to codify law on international responsibility  of state for injuries to alien. This has been relied by many International Arbitral Tribunals, which is as follows

“Article 9.A state is responsible if an injury to an alien results from a denial of justice. Denial of justice exists when there is a denial, unwarranted delay or obstructions of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guarantees which are generally considered indispensable to the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not a denial of justice”.

 Thus it is clear that state is responsible for any wrongdoing by its organs under International Law.

Concept  of  minimum  international  standards

Globalisation paved way for new concepts especially in the context of investment and trade. In the international context of state responsibility, does it mean that what subjects of state cannot get, could be claimed by an alien, certainly not, this is what fair treatment principles would mean. To reiterate state has duty to treat foreigners in the same way it would treat its nationals. However due to prevalence of different regimes and different standards in the world in relation to  trade, investment etc., initiation had come from developed countries as early as 1920's ,later  UN agencies like UNCITRAL ,UNCTAD etc  in the wake of globalisation. This is how concepts like “fair and equitable treatment”, “Most Favoured  Nation (MFN)” have come into existence. These concepts are secured either in multilateral treaties or bilateral treaties or convention related to international relations of the states. These standard norms are called international standards which each country party to such treaty is bound to honour. These standards can also be on higher level when compared to national standards. Breach of these standards embodied in treaty entails in state responsibility, though it cannot be termed as breach when compared to national standard.

Investment  treaties  and  obligations

The obligation to provide “fair and equitable treatment” or "most favoured nation treatment” under bilateral treaties is as part of the protection due to foreign direct investment by host countries i.e., a standard that states the treatment to be accorded in terms whose exact meaning has to be determined, by reference to specific circumstances of application.UNCTAD  (UNITED NATIONS  CONFERENCE  ON  TRADE  AND  DEVELOPMENT) is an UN agency helping  countries to benefit from global economy, they define required standard in bilateral treaty for investment. Thus, in the case of national treatment, reference must be made to the treatment of nationals of the host country. Similarly, in determining the content of the most favoured nation standard, reference must be made to the treatment granted to investments from the “most favoured nation” (UNCTAD 1999d, 1999e, 1999f) ( see  BILATERAL INVESTMENT TREATIES 1995–2006:  TRENDS  IN  INVESTMENT  RULE MAKING  by  UNCTAD)

White  Industries  case

 White Industries case is decided by Tribunal not with reference denial of justice due to    delay involved in Supreme Court but with reference to MFN clause which runs as follows

“A contracting party shall at all times treat investments in its own territory on a basis no less favourable than that accorded to investments or investors of any third country.”

Tribunal with reference to India – Kuwait BIT which provides to secure effective means to  claim and right  held that  inability to  hear appeal for over five years amounts to undue delay and constitutes breach of India’s voluntarily assumed obligation of providing effective means to asserting  claims and enforcing rights. India and Kuwait BIT provides as follows

“Each contracting state shall maintain a favourable environment for   investments in territory by investors of the other contracting state, each contracting state shall in accordance with applicable law and regulations providing effective means asserting claims and enforcing rights.”

 Tribunal also relied on Chevron Tribunal case which decided a dispute arising U.S  - Equador treaty wherein principles of effective means has been laid down,  one of such principles is “effective means has to be measured against objective international standard”.

Conclusion

Finding in White Industries case need not be taken as an affront to India's judicial system as otherwise in the above matter Tribunal discussed about role of Indian judiciary considering large populace and held that delay involved will not amount to denial of justice .Therefore it should be treated as a pointer of failure on the part of state in providing effective means especially in the context of India – Kuwait BIT and it is rather a fall out  of mishandling of treaty negotiation by Babus in Delhi as mentioned by senior counsel in his articles as they have never understood its implication. It is painful and agony for any citizen to suffer challenge to pride related to sovereignty of his country, however in a scheme of global justice (Rawls called realistic utopia) judicial mind in international arbitration cannot be swayed on arguments on the line of national sovereignty which would be deemed as parochial. We must need to recognize to the fact that we are slowly moving into a world in which concept of justice without borders is not far from realisation— Constitution of International criminal court is one of such realisation (India not yet become part of it). We must also need to realise  how Europe respond to this concept by providing party autonomy and choice of law in European union (Regulation(EC)N.593/2008 of the European Parliament) in the matter related to contract having conflict of law applications, freedom is given to parties to choose law applicable to the contract (for e.g. German national and French national  in a contract  can choose law that applicable to the contract  like that of Brazil, or Australia etc).However our citizenship is determined by territorial sovereignty and so long as our patriotism remain based on political sovereignty, award like in White Industries case will  continue to haunt us unless world’s  largest constitutional democratic government respond to it  by constitutional means to create provision for ratification of treaty by Parliament (it supposed to  discuss especially  matters involving fiscal and country's prestige).

"The Last Page" -- A Presentiment ?

(By B. Jayasankar, Advocate, Thiruvananthapuram)

Patience is a virtue. But, at times, it refuses to pay. I feel enervated and so I am forced to pen my thoughts to energize myself. More than six months elapsed and I heard nothing from the venerable Senior Advocate, Mr. T.P.Kelu Nambiar. His untimely withdrawal after writing the “Last Page” ( 2011 (2) KLT Journal Page: 1 )and calling it a day left me puzzled. Yet I waited patiently for his return hoping that he may change his mind and respond to the calls of the renowned former Supreme Court Judge, Mr.V.R.Krishna Iyer, the doyen of Kottayam Bar, Mr.V.K.Sathyavan Nair, Senior Advocate of High Court of Kerala, Mr.K.Ramakumar, Advocate of High Court of Kerala, Mr.Kaleeswaram Raj and the like. But in vain. Mr.Nambiar seems to be stubborn and implacable. If their exhortations failed to move him then how can I expect my humble request to make a difference ? Hence, I desist from making a request and will rather speak my mind.

My knowledge of Mr.Nambiar is confined to what I have gathered from his articles/speeches. Having said that, I am only trying to bring back the ignition/inspiration which is now seen missing from the pages of KLT. I understand that the “Last Page” depicts his agony and perplexity. It also reveals that he was keeping a stiff upper lip all the while. Otherwise he would not have ventured to write the “Last Page”, which is more or less an epilogue and which sounds almost like an epitaph. But, I know many lawyers who are interested to wear the tag of tradition and are striving hard to revive the lost glory of this noble profession. What all spoken by the Senior Advocate will remain as spoken silence but for them. I wonder why the respected senior cannot write and speak for those who heed him. This is the time when his lectures and articles assume more relevance and many view him as a lodestar. Being so, he cannot simply shrug off his responsibilities and shut himself up. I wish the respected senior would return to continue with what he had been doing and what he is good at.

We can see that the respected senior’s fear is not wholly unfounded. The “Last Page”, which he projected as his swansong is to be taken as an alarm. The pain inherent in the article need not be overlooked. His hopelessness in the hapless situation has been brought out very clearly through the article. What the legal fraternity is going to do about this is a question which we have to ask among ourselves. It is time for an introspection. We all owe a duty to this profession. The duty of maintaining the decorum and dignity of this profession, thereby keeping it untainted and untarnished. Whether we all can contribute or render anything remarkable to this great, old, noble profession is a different question altogether. But we can easily refrain ourselves from indulging in things which will deface, desecrate and discredit the profession. We must also realize that the line which separates the personal and the professional life of an advocate is so thin that it lies almost invisible. So we should not overlook the importance of the personal standards to which we have to adhere to. Hence, I think, it is high time, we wear the robes over our mind too to put ourselves in reins. I stay optimistic and hoping against hope. And the only thing I know for sure is that many will miss the venerable Senior Advocate if he did not review his decision.

“ Heed an old man,

for he is a library”

Matrimonial Disputes Redressal Needs A more Realistic Approach than  
Mechanical Implementation of Law -- A Re-Joinder to 2011 (3) KLT Journal 33

(By Dinesh.M. Pillai, Judicial First Class Magistrate, Kothamangalam)

While endorsing on the views expressed by the Learned Sub Judge, Mr. V.K.Babu Prakash in the above article, I would like to add the following views of me on the subject which I had already submitted in answer to the consultation paper-cum-questionaire forwarded by the Law Commission with regard to S.498-A I.P.C.; which was mainly centered on the questions whether S. 498-A has to be made bailable and compoundable.

2. Being a cognizable offence, the Police who receive a complaint alleging offence u/S.498-A I.P.C. has no option; but to register an F.I.R. as contemplated u/S.154 Cr.P.C. and to proceed with the investigation in the case.

3. But the question is whether the immediate step in the investigation should be the arrest and custodial interrogation of the accused and whether the same will better serve the objective of the Legislation. The object of Legislation to incorporate S.498-A I.P.C. was to prevent the torture to a woman by her husband or by relatives of her husband. In practice and reality there are several instances where the above provision has been misused to wreck the vengeance of the wife or her relatives towards the husband or his relatives and in many cases the matter is handled by persons with vested interest; assisted by the Police as well as the Lawyer, even at the back of the wife. In the attempt to prosecute the offence u/S.498-A, in many cases it is seen that the ultimate result will be that the very existence of the family and the family relationship is put in peril, rendering the wife as well as the children in the family as the ultimate sufferers. But it also has to be borne in mind that the atrocities against wives in this country are increasing day by day and to prevent such cruelties, the maintenance of S.498-A I.P.C. with its proper vigour and harshness is also necessary. In other words, what is required is to preserve the penal provision as an effective measure to prevent torture to wives and also as a warning to those who indulge in the habit of subjecting women with Domestic Violence and at the same time to provide necessary measures to prevent its misuse and to ensure the prevalence of the family life in peaceful and harmonious condition.

4.  One  of the remedies which I suggest to solve the problem is that the offence u/S. 498-A I.P.C. has to be divided into 2 parts like in the case of 506 I.P.C. and the offences relating to cruelty involving physical torture should be made non-bailable and the other part relating to cruelty of other nature should be made bailable. Even in the first part, there should be a condition that the accused can be arrested only with a warrant or order from the Magistrate as in the case of offence u/S.377 I.P.C.

5. In cases u/S.498-A, coming under the part of non-bailable, the Police officer who finds the arrest of the accused as necessary shall make an application before the concerned Magistrate seeking a warrant or order allowing to arrest the accused. The Magistrate shall forward the said request; which should contain all the necessary materials to appraise the facts and situations involved in the case to the Taluk Legal Service Authority for its consideration. In cases where the wife had committed suicide, the Magistrate can decide on the request for arrest on the material available; without refering it to the TLSC. The Taluk Legal Service Committee shall constitute a sub-committee consisting of competent persons like the local Dy.S.P., Protection Officer under the PWD Act, A.P.P , Medical Officer and other competent persons headed by the Chairman of the TLSC and the said committee shall examine the request of the Police Officer and make necessary recommendations on the same. The said committee shall summon both the accused and the victims in the case and try for a settlement in the matter; if necessary by conducting necessary conciliations and mediations. If the said committee even after such an attempt, find it impossible to arrive at a settlement, shall return the request for arrest to the Magistrate with necessary observations and recommendations.

6. The Magistrate on receipt of the said recommendations shall make appropriate decision of the application by either allowing the prayer for arresting the accused or denying the same; in both cases with valid reasons. The Magistrate can also initiate a proceeding under the Prevention of Women from Domestic Violence Act, 2005 either directly or after calling for report from the Protection Officer and there also the Magistrate can seek for a settlement in the matter through mediation or counselling.

7. I think that the above procedure will form sufficient safe-guard against unnecessary arrest of the accused and consequential misuse of law by the persons with vested interest. The compliance of the above procedure will also provide the parties a proper forum or system for amicable settlement and will also form an instigation for the husband for a settlement against the chance of getting arrested in case and to avoid further proceedings of the case.

8. Conciliation should be the first step with regard to further proceedings in all cases booked u/S.498-A I.P.C. and also in matters under the PWD Act. In all the cases registered under S.498-A I.P.C. (irrespective of the nature of the offence as bailable or non-bailable), the matter should be placed before the above mentioned sub-committe under the TLSC and in all the cases, the Committee shall endeavour for a settlement between the parties.

9. The Taluk Legal Service Committee can formulate sub-committees at the Panchayat level with the assistance of the ‘Jagratha Samithies’ formed in each Ward Level which can inquire into the matters involving Domestic Dispute and try for a settlement between the parties. The Para Legal Volunteers recruited by the TLSC in each Panchayat can identify the incidents of domestic violence in their area and bring it to the notice of the Ward Level Committee of the ‘Jagratha Samithy’. Opening of Free Legal Aid Clinic at each Grama Panchayat will facilitate the public to approach the same for the redressal of their grievances involving Domestic Violences and the matters which cannot be settled there can be referred to the Taluk Legal Service Committee and thereafter to the Court of Law. The TLSCs shall make avail the assistance of Counsellors, Economists, Psychologists, Psychiatrists, Sexologists, etc., for the conciliation proceedings and service of each of such faculty shall be made use of depending on the nature of the problem involved in the particular case.

10. After the successful settlement of the dispute through counselling etc., in order to ensure the presence of the accused and to prevent further cruelties from the part of the accused, the Magistrate or the TLSC should have the authority to call for accused to execute necessary bond with conditions and the compliance of the conditions by the accused can be ensured through supervision by the ‘Jagratha Samithy’, the Protection Officer and the Police.

11. There is nothing bad in keeping the investigation in abeyance till the above conciliation proceedings are completed and any hasty proceedings will only result into the breakage of the very family life; rendering the parties in disaster.

12. Regarding compoundablity of the offence; I think that when the prosecution of offence u/S. 498-A is initiated after the failure of all the above attempts for conciliation-mediation-settlement, there is no meaning in allowing to compound the offence subsequently. It has to be borne in mind that in many of the criminal cases, the aggrieved are compelled to compound the case for the compulsion of the accused or other persons and also to rescue herself from the trauma of prolonged trial of the case. Even then in genuine cases where the parties actually settle the matter during the trial, the offence u/S. 498-A can be compounded with permission of the Court on satisfaction that the dispute had been actually settled between the parties. I think it is better in those cases to further refer the matter to the Sub-Committee of the TLSC to ensure that the matter had been actually settled between the parties and the composition of the case is voluntary and beneficial for the entire family; for which they can seek assistance of the ‘Jagratha Samithies” at the Panchayat level.

13. Apart from the strict implementation of all the Laws available, I think that the prominent consideration should be given to make awareness and to generate a culture in the Society that Women in the country are entitled for better treatment inside and outside the house and that they are not just creatures made for the joy of the husbands or his relatives so as to subject them with any form of Domestic Violence. This according to me can be achieved by legal awareness programmes, counselling and conduct of Adalaths and Legal Aid Clinics by the TLSCs with the assistance of the Grama Panchayat and like social institutions.

14. In this regard, I may also submit that a mission undertaken by the Kothamangalam Thaluk Legal Service Committee to eradicate the incidents of Domestic Violence within the Thaluk in the above mentioned manner, captioned as “DoVE Mission” (Domestic Violence Eradication), through mediations, counsellings, Awareness programmes, Adalaths etc. with participation of the Bar Association, Kothamangalam, Muncipality, Grama Panchayats and other social institutions has gained great momentum and the same had been appreciated and also blessed with a grand-in-aid of  Rs. 5,00,000/- by the National Legal Service Authority.