Verdict on a Judgment

(By T.P. Kelu Nambiar, Sr.Advocate, High Court of Kerala) 

Some well-meaning lawyer-friends asked me: “Why are you keeping a stiff upper-lip, and your blue pencil at rest, on the current controversial question of primacy of the Chief Justice of India in the context of appointment of Judges of the Supreme Court and the High Courts, the Park Avenues of Justice. Why don’t you speak out. Your opinion, perhaps, would be an ‘open sesame’ to the topic. You are not a ‘wounded lawyer’, awaiting the boon of all-merciful healer-time. Though I live a life on my own terms, I was provoked. It was a slap on my wrist. It tickled my funny bone. I thought, I should open up and wag my pencil, because I am asked to write for the legal fraternity, not for thriller-readers; and I am no Dan Brown to write a ‘Da Vinci Code’.

Reversing the normal process, with the utmost respect I start with the conclusion that the decision of the majority, of the nine-Judge Bench, in Supreme Court Advocates-on-Record Association case ((1993) 4 SCC 441) is not correct. (Mark, the Bench did not arrive at a collective conclusion.)

The majority (of seven learned Judges) have travelled through one-hundred-and-fifty printed pages to come to the conclusion that ‘no appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India’. The dissenting view (of two learned judges) that ‘as regards primacy to be accorded to the view of the Chief Justice of India vis-a-vis the President, i.e. the executive, although his views may be entitled to great weight, he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views’, was arrived at, in about seventy-five pages. (I write for those who have read the decision in full.)

I shall not make a lengthy travel with my blue pencil to endorse the conclusion come to by the ‘dissenting Judges’. I am not scripting an Ode to Judge-selection.

Neither the straight text nor the clear meaning of Arts.124 and 217 of the Constitution is capable of being read and interpreted to mean that the opinion of the Chief Justice of India is the final word. The references made by the majority to various ‘authorities’ only show that the primacy of the Chief Justice of India would be ideal. The majority kept out of mind that the Constitutional provisions are being interpreted, not reconstructed. The ‘wish’ of the majority alone is reflected in their opinion, not the ‘meaning’ of the Constitutional provisions.

It needs little emphasis to clarify that the Debates of the Constituent Assembly are unlike proceedings of the Parliament and Legislative Assemblies, or the Objects and Reasons of a legislation, or an Explanatory Note to statutory Rules. The Debates reveal the meaning and intention of an Article as finally adopted. The Constituent Assembly was composed of the “freely chosen representatives” of the people of India, as desired by Mahatma Gandhi, far back as 1922. The desire of the Mahatma was affirmed, from time to time, by various public bodies and political leaders, and the idea of Constituent Assembly had come to prevail largely as an ‘article of faith’ in almost all the politically-minded classes of the country. The address, on the 9th December 1946, (when, at eleven of the clock, the Constituent Assembly of India first met), of the Provisional Chairman Dr. Sachchidananda Sinha ‘to the Indian people’ reveals the constitution, nature and importance of the Constituent Assembly. The members of the Constituent Assembly were ‘great names’. The Supreme Court was not seen taken through the speech of Dr.Sachchidananda Sinha, and the ‘great names’. I hold the firm view that when one entertains a doubt regarding the meaning of a constitutional provision, the Debates of the Constituent Assembly are the sure guide.

Arts.124 and 217 are the Articles dealing with appointment of Judges of the Supreme Court and the High Courts, respectively. Those portions of these Articles, relevant for the present purpose, may be read here

 “124.... (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of, the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years”. 

“Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”.

“217.....(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Art.224, and in any other case, until he attains the age of sixty-two years”.

The Draft Article before the Constituent Assembly corresponding to Art.124 was Art.103; and the Draft Article corresponding to Art.217 was Art.193. The Constituent Assembly Debates reveal the attention and anxiety bestowed upon framing these Articles. Several amendments were moved. Some members moved amendments on the lines of giving primacy of views, in the appointments, to the Supreme Court/Chief Justice of India. Winding up the proceedings, Dr.Ambedkar said, after an elaborate exposition of the features involved:

“With regard to this matter, I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, offices of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States. It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.

“With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have, and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous proposition”. 

The views of Dr.Ambedkar are reflected in Arts.124 and 217. I am sure, I follow.

The majority of the Judges, constituting the Constitution Bench, has laboured much to come to the view that primacy should be accorded to the views of the Chief Justice of India. The decision is not what the Articles mean, but what the Articles should have been, or should be. This, with great respect, is not interpreting the Articles, but constructing entirely different Articles, which is not the function of the Court. There was an indication in the speech of Dr.Ambedkar that the question of variation in Arts.124 and 217 could, be looked into at a later stage. It is not for the Supreme Court to finalise the variation. The Supreme Court could have suggested the variation for the consideration of the Government.

I, too, can deliver verdict. One fears only that which he does not understand. I do not want to win. I prefer not to lose. This is a creative writing, which I love. I do not want this write-up to be protected under patent. Nor have I obtained letters patent therefor. Anybody can do anything with this. I simply believe my own opinion. It is not my habit to whisper. I proclaim aloud I do not use spiritual vocabulary while scripting on a subject like this. Articles 124 and 217 are verily Articles without multiple layers of meaning. Those Articles are misjudged and misinterpreted, is my respectful view. I should think, I have not made an odd choice of vocabulary. I underline the concluding remarks of Dr.Ambedkar, the Indian Tribonian, and the contributions of Sir B.N.Rau, who compiled and consolidated the legal code of India, that is, the Constitution of India.

The Constitution of India is not the magic of many. It is a product of hard, diligent, untiring, remarkable and intelligent labour of the Constituent Assembly of India, which was composed of ‘great names’, and which occupies the place of first glory. Every lawyer should remember what somebody said: ‘What do they know of English Law, who only English Law know’; and should realise: ‘What do they know of Constitutional Law, who only Constitution of India know’. Lawyers should have close acquaintance with the Debates of the Constituent Assembly. The Constituent Assembly is a ‘Foundation’ in the names of those who constituted it, unlike a court, which is not a foundation in anybody’s name, alive or dead. And, that is that. 

The ‘judicial’ tear in the fabric of the ‘People’s Constitution needs urgent ‘legislative’ darn. I call immediate attention of the Union Government to repair the damage and restore the pristine look. I am sure, the Government would realise that the Constitution, of ‘We, the People of India’, is not a mere play of Squirrel Nutkin and Tom Kitten.

Liability of an Insane Person in Tort vis-a-vis Crime

       (By S. Nikhil Sankar, 5th Year B.A. LL.B. (Hons.) Student, NUALS, Kochi)

Abstract:

A wrong invites action in law of crimes as well as torts. When wrong doer is an insane person, nature of liability in the actions is different. The author is analyzing the law on the point in the background of a decision of the Honourable High Court of Kerala.

Introduction:

The law of Tort and law of Crime are, no doubt, two different species. Broadly speaking, a tort is a violation of private rights of an individual; whereas a Crime is violation of rights of the public at large. In the case of an insane person, criminal liability may not arise, but in tort he may be liable to be sued. The law on this point appears to be not definite. In this connection Sir William Markby wrote: ‘How far a person who is insane would be held responsible, in courts of civil procedure, for his acts or omission independently of contract, is a matter on which one is surprised to find our law books nearly silent’(Elements of Law, at p.131.). The most authoritative statement of the law of England upon this matter appears to be the words of Lord Esher M.R. that whenever a person does an act which is either a criminal or a culpable act, that act would make him civilly or criminally responsible to the law, unless the disease of the mind of the person doing the act is not so great as to make him unable to understand the nature and consequence of the act which he was doing (Hanbury v.Hanbury 8 TLR 559.).

Tort and Crime:

Russel has opined “Crime is the result of human conduct which the penal policy of State seeks to prevent (See Russell, Crime by Sir.W.O.Russell, Edited by J.W.C.Turner (12th Edn 1964) p39.).

The concept of tortious liability has been analyzed thus “Tortious liability arises from the breach of a duty primarily fixed by law, this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”(See Winfield and Jolowicz on Tort. Edited by W.V.H.Rogers, Sweet & Maxwell, London (13th edn 1989) p3.)

The distinction between tort and crime depends mainly on the nature of the appropriate remedy provided by law. A civil wrong gives rights to civil proceedings, the object of which is enforcement of some right claimed by the plaintiff against the defendant. The usual remedy is compensation based on the principle of restitution of integrum (“restoration to the original position”). Thus, the object of the law of tort is compensation and not punishment(White v. White(1949 ALL ER 339).). Criminal proceedings, on the other hand, are with an object of punishment of the person for some act of which he is accused. The usual remedy in a crime is punishment and compensation for damages.

 Another distinction is based on the requirement of intention. Actus non facit reum, nisi mens sit rea which means that the Act alone does not amount to an offence; it must be accompanied by guilty mind, is the rule of criminal law. In tort intention is of subordinate importance only. The intention as a rule is not an essential condition of tort in most of the cases. The rule in law of tort is ubi jus ibi remedium which means where there is a right, there must be a remedy (See Avatar Singh, Introduction to Jurisprudence. Wadhwa and Company, Nagpur (2nd edn.2008) p.280.).

An action in tort can be brought by the injured party himself and the proceedings is in the civil court. The proceedings in respect of the crime are taken and conducted by the State in criminal Court.

The liability of the wrongdoer may co-exist in law of crime as well as tort. Most of the crimes are actionable in tort also. Eg: Assault, Mischief, Trespass, Libel etc. In such cases the wrongdoer may be held liable to pay the compensation to the injured and liable to be punished criminally by imprisonment or fine. Punishment in a criminal proceeding for such a wrong is totally independent of the action for damages in tort. So, action in both for the same wrong does not violate concept of ‘double jeopardy’ as contained in Article 20(2) (Article 20. Protection in respect of Conviction for Offences.

(2) No person shall be prosecuted and punished for the same offence more than once.) of the Constitution of India.

Absolute Liability:

The liability concepts existing under tort and crime coincide in their meaning but vary in its application. The concept like strict liability exists in tort as well as crime, but in tort it is subject to few exceptions, but in the arena of Criminal Law the application is more stringent and circumscribed enunciating the principle of English maxim ignorantia facit excusat ignorantia juris non excusat  (See Hari Singh Gour, Penal Law of India Vol.I 11th edn.1998 pp 539-540.) (ignorance of fact is excused, but ignorance of law excuses no one). The ignorance of existence of a particular set of facts can be excused, but ignorance of law cannot be let off as an excuse (State of Maharashtra v.Mayer Hans George (AIR 1965 SC 722).). This can be viewed as a ‘strict liability’ offence under the realm of Criminal Law. In tort the concept of ‘strict liability’ is watershedded by a number of exceptions (Rylands v.Fletcher (1868) L.R.3H.L.330. 338-340.).As time passed, this principle was replaced by the novel concept of ‘absolute liability’ wherein the offender is held absolutely liable and does not enjoy the benefit of any exceptions.

The concept of absolute liability is the subject matter of the discussion here. The evolution of the concept can also be advantageously looked into while analyzing the decision which is discussed below.

The Case Analysis

Many decisions are not available in law of tort involving mentally ill persons in India. An important, probably the only Indian case on the point is Ranganagulu v. Mullackal Devaswam  (AIR 1974 Kerala 25.), decided by the Honourable High Court of Kerala on 18.1.1972. The decision was rendered by a Division Bench comprising of Chief Justice T.C. Raghavan and Justice P. Unnikrishna Kurup.

The facts of the case are as follows: the appellant (Ranganagulu) was a Hindu hailing from Ramnad District in Andhra Pradesh and he often came to Alleppey. He was a devotee of the Mullackal Temple and he used to go there during his visit to Alleppey. On one of such occasions ie; on 7th October, 1961 he entered the temple wearing shirt and shoes and broke the idol of deity. He was caught and handed over to the police. From his behaviour, the police suspected he was mentally not sound and he was, therefore, got examined by a doctor. After keeping him under observation the doctor issued a medical certificate observing “Indifferent to the surroundings. Does not sleep at night. Talks incoherently. Laughs without any reason” and opined that he was ‘insane’.

In the criminal case charging with offence of trespass and mischief he was acquitted giving the benefit of Section 84 of the Indian Penal Code.

In the suit filed by the Devaswam Board claiming compensation on account of the damage caused by him in the temple and for purification of the temple, the defence set up by the appellant was that he was not liable in tort for, he was insane at the relevant time. The Trial Court turned down the said contention and decreed the suit holding that he was liable in tort. The appeal preferred by him before the District Court was dismissed. Accordingly, the appeal came up before the Honourable High Court of Kerala.

The evidence of the doctor who examined the appellant and the certificate issued by him were analysed by the Honourable High Court and it was found that the appellant was insane. However, the court further held: “this evidence, it must be stated, is not sufficient to hold that the appellant was not in a position to know the nature and quality of his act. Nor can it be stated from this evidence that the appellant’s acts were involuntary”. Then the High Court proceeded to discuss the law on the point. Finding that there is no previous decision by the Courts in India regarding how the liability of an insane person can be fixed in a case of tort, the court reiterated the following principles in the light of the foreign decisions:

1. M’Naghten Rules applicable to crimes regarding insanity do not apply in cases of tort (Williams v. Williams (1964 AC 698).).

2.    Insanity by its own is not a defence in tort. If a particular tort requires a particular state of mind like malice or some specific intent then insanity, may be a good defence to disprove the existence of such malice or intent (Morries v.Marsden (1952) ALL ER 925.).

3. If the action is not a voluntary act but the act of an automation, in tort, the defendant is not liable (Morries v.Marsden (1952) ALL ER 925.).

4. If the insanity is of so extreme nature, in tort, there is no liability as there is no voluntary act on his part (Tindale v.Tindale (1950) 4 DLR 363 (can).).

5. The degree of insanity is a question which has to be decided in each case depending upon the facts and circumstances of the case. If the person knew the nature and quality of his act, in tort, it is no defence that he did not know that what he was doing was wrong (Tindale v.Tindale (1950) 4 DLR 363 (can)).

6. In torts depending upon negligence the conduct of the defendant must be judged by reference to his knowledge or means of knowledge; and in such cases, insanity may be relevant in judging whether he had the necessary knowledge or means of knowledge.

7. Insanity is no defence in an action for negligence in operating a motor vehicle (Adamson v.Motor Vehicle Trust (1957) 58 WALR 56.).

Judgment

The court ultimately decided that the appellant was capable of understanding the nature and quality of his act - the act of automation and that even if he was not aware of the consequence of his act, he knew the nature of his act. The Court, accordingly, held him liable for payment of damages.

Conclusion:

The above referred decision of the Honourable High Court of Kerala is a shining hallmark in the law of tort in India. Through this decision, the High Court of Kerala has evolved a distinct concept of ‘absolute liability’ in the Indian legal system.

Trial by the Television

(By K. Ramakumar, Advocate, High Court of Kerala)

The Fourth Estate is one of the firm pillars of democracy - as strong and sturdy as the other three. While there are executive excesses, judicial aggressions, and legislative liberties, the Press is also very often breaching the borders and the area earmarked for it.

Trial by the Media is no new phenomenon. But, the trend towards sting operations is alarmingly anew. It destroyed the life of a Delhi school teacher and now that of two leading lights of the Delhi Bar M/s Anand and Khan.

Freedom of Press is regarded as “the mother of all liberties” in a democratic society, says the Apex Court in Harijai Singh case (1996).

But then like every right there are responsibilities as well. 

Therefore, the Court adds:

“It is thus needless to emphasise that a free and healthy press is indispensable to the functioning of a true democracy. In a democratic set up, there has to be an active and intelligent participation of the people in all spheres and affairs of their community as well as the State. It is their right to be kept informed about current political, social, economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider and form broad opinion about the same and the way in which they are being managed, tackled and administered by the Government and its functionaries. To achieve this objective the people need a clear and truthful account of events, so that they may form their own opinion and offer their further course of action. The primary function, therefore, of the press is to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. It has an educative and moblising role to play. It plays an important role in moulding public opinion and can be an instrument of social change. It may be pointed out here that Mahatma Gandhi in his autobiography has stated that one of the objectives of the newspaper is to understand the proper feelings of the people and give expression to it; another is to arouse among the people certain desirable statements; and the third is to fearlessly express popular defects. It, therefore, turns out that the press should have the right to present anything which it thinks fit for publication.

A typical case of tyranny by the Television Media is that of Arushi - a NOIDA girl. Her own father was arrested by the C.B.I. and pronounced by the Print and Electronic Media as already guilty. The shame faced C.B.I. later turned a somersault and reported to Court that his arrest was an error and he was innocent. How horrible must have been his experience ? 

In Rajendra Jawanmal Gandhi (1997) the Supreme Court said:

“A trial by press, electronic media or public agitation is the very antithesis of rule of law. It can well lead to miscarriage of justice”.

This was reiterated in the well known M.P. Bar Association case against the ‘Hitavada’.

“The reach of the media, in the present times of 24 hour channels, is to almost every nook and corner of the world. Further, large number of people believe as correct that which appears in media, print or electronic. It is also necessary to always bear in mind that the Judiciary is the last resort of redressal for resolution of disputes between the State and the subject, and high and low. The confidence of the people in the institution of Judiciary is necessary to be preserved at any cost. That is its main asset. Loss of confidence in institution of Judiciary would be end of Rule of Law. Therefore, any act which has such tendency deserves to be firmly curbed. For Rule of Law and order in society, a free responsible Press and independent Judiciary are both indispensable. Both have to be, therefore, protected.”

The Court noticed with regret that even in a country of conventions, the United Kingdom, Media self-regulation has failed. The National Union of Journalists has a Code for its members in England, which they never adhere to.

The Delhi High Court has repeatedly cautioned the Press of the impact of what appears in Print or Electronic Media. It said in D.N. Prasad - (2005 Crl. LJ. 1901)

“Unfortunately it is not realized that any item of news telecast in the channels would reach persons of all categories, irrespective of age, literacy and their capacity to understand or withstand. The impact of such a telecast on the society is phenomenal. Unfortunately, this uncontrolled or unedited telecast or propagation of news is resorted to (in) the name of exercise of right to freedom of speech and expression, or freedom of Press”.

In Anand’s case the Court was more categoric:

“They may seem prosaic to those engaged in the entertainment business, but they are the rocks on which freedom of oppression and tyranny have been established in this country for centuries. The Court has no doubt to the Television authorities and all those producing and appearing in televised programmes are conscious of their public responsibility and know also of peril in which they would all stand if any such interview wherever to be televised in the future. Trial by Television is not to be tolerated in a civilized society.”

It quoted with approval the earlier dictum of the same Court:

“This case is a nefarious example which manifestly demonstrates how the trial and justice by media can cause irreparable, irreversible and incalculable harm to the reputation of a person and shunning of his family, relatives and friends by the society. He is ostracized, humiliated and convicted without trial. All this puts at grave risk due administration of justice.”

Not very different is the position in England. In the two Times Newspaper Cases — 1972 (3) All England Law Reports 1136 and 1973 (3) All England Law Reports 54 - the House of Lords declared that the Court can injunct even an unpublished report. In the third Times Newspaper case 1999 (4) All England Law Reports 609 - Lord Nicholls formulated certain principles for the Press, summarised again in 2004 (4) All England Law Reports 913.

Even Prince Charles, the Prince of Wales was not spared by the English Press. 2007 (2) All England Reports 139 was a case where a lady employed by him in the Palace leaked to the press, information touching on his privacy. The Court held that the newspaper exceeded limits. The Court noted it is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation, but the Press must not over-step certain bounds in particular in respect of reputation and rights of others. 

Both Sri Anand and Khan complained of trial by the Media, the NDTV particularly. The plea of trial by the Press and the prejudice caused to him, raised by Sri Anand was not accepted by the Court. 

The Delhi High Court summarizes the law as follows:

“It follows from the above that before a cause is instituted in a Court of law, or is otherwise not imminent, the Media has full play in the matter of legitimate ‘investigative journalism’. This is in accord with our constitutional principle of freedom of speech and expression and is in consonance with the right and duty of the media to raise issues of public concern and interest. This is also in harmony with a citizen’s right to know particularly about events relating to the investigation in a case, or delay in investigation or soft-pedaling on investigations pertaining to matters of public concern and importance”.

It also said:

“When a cause is pending in Court, the media may only report fairly, truly, faithfully and accurately the proceedings in the court, without any semblance of bias towards one or the other part. The media may also make a fair comment in a pending cause without violating the sub-judice rule”.

“While trial by media ought to be deprecated, in the event any person feels victimised or unfairly treated by the media - either through a ‘trial by media’ or otherwise - he is not without remedy. Proceedings for defamation or injunction can always be initiated in an appropriate case” .

After finding Anand and Khan guilty of contempt it recommended to the Full Court the stripping of their designation as Senior Advocates and  recommending conferment of that status on the Amicus – A recommendation of doubtful validity and propriety. Please see the interesting decision of the Supreme Court on the Nariman Committee and the Thomas Committee on the Media – (2009) 5 SCC 212. It is gathered that Sri Anand is approaching the Apex Court.

The Legal Media in Kerala does not lag behind their compeers of the National Capital. They are as much fiercely competitive, if not combative, to the delight of readers and viewers, but the disdain of the victims.