Not Goldsmith But Nelson

(In response to 2008 (2) KLT Journal 21)

(By K. Ramakumar, Sr.Advocate, HIgh Court of Kerala)

 

The High Court of Kerala quite often issues directions to the officers of the Executive to consider the grievances of the petitioners before it with a time limit fixed to ensure speedy compliance with the order. Judgments command that “it shall be done as expeditiousiy as possible and at any rate within three months”. English, continuing to be the language of the administration, one of the enterprising civil servants, who was issued with the above direction told a litigant “look here, the Hon’ble High Court has permitted to fix any rate I like”. So much is the standard of English knowledge among the officialdom, in spite of the fact that English has been the language that ruled the people well over 100 years in this country. Another officer said when he was presented with an order from the High Court that “there will be a direction”, amazingly, “let that direction come then I will pass orders”, evidencing the total lack of familiarity with mundane english expressions.

 

So is unfortunately the position in the Judiciary. An old timer warhorse, an octogenarian in age but not in appearance or agility, has contributed a highly commendable Article in (2008 (2) KLT Journal page 21) on the need to develop command of language by legal practitioners. The exhortation is eclectic as well as effulgent. Before however, starting reading Oliver Goldsmith or Charles Dickens, one wishes, they do some homework with Wren and Martin. They cannot turn a Nelson’s eye to “Nelson’s Grammar”, an equally authentic Grammar Book. Grammar these days is the biggest casuality in judicial language. In one of the reported judgments including in the esteemed Law Journal KLT, a case has been described as one for “eviction of a building”. No building can be evicted except by use of a Bulldozer or the JCB of Munnar notoriety. A tenant alone can be evicted under the Rent Control Act. Yet the above faulty and flawed expression has got into the judgment, ironically of a Judge who later described the contents of a counter affidavit filed by the Government as “a murderous assault on an alien language”. Such assaults are becoming common these days. Usages like “recordical evidence” have already started creeping in the judgments of subordinate courts but fortunately not in the High Court. “Today moving” however has already found its way even in judgments of the High Court”. Some legal practitioners in the High Court use the strange expression “would your Lordship may”, which sounds absolutely absurd. An exuberant young counsel stunned the Court by submitting he has “an Adipoli decision” on a point. While nobody can dispute that English is a great gift of Goddess Saraswathi to us, its intricate grammar cannot be given a go bye for convenience and expediency. If you stick to English, it has to be ensured that it is good English or at least correct English. Ever heard of a professor, who told a student “I am not vacant come behind”, meaning thereby that he is not free then but the student may come later and the guileless Advocate’s Clerk who sent a wedding invitation with a request “Presents only. No presence”. Nor can liberties be permitted with English language like our Tamilian brethren do as “head-going affair” or “elephant matter”. There is no “hand and arithmetic”, to such amusing howlers. 

 

Our connection with English is solely because the British ruled us for more than hundred years. English itself had to fight for survival and revival in its own land against Roman and Latin, the language of the rulers. The East Africans look upon French language with admiration and awe because it was the language of their rulers. So did the Indonesians about the Dutch in the past, not now. The Goans go about gleefully with smattering of Portugese because they ruled Goa from Lisbon. We adore English because it was the ruler’s language and to speak in ruler’s language was fashionable. Indeed our mindset continues to be English, which is why we are aping the English in dress in a hot country like India. English has never been a unifying force, as is believed by my learned, esteemed senior friend, but it has only divided. Thousands of years ago, a Sankaracharya from Kerala had ascended “the Sarvanjyapeeda” in Kashmir, proclaiming to the whole world the unity of Bharath and he was not obviously speaking in English. The expression “Asethu Himalaya” had come long before the English conquered our country. There existed a shared sacred thought common from Kargil to Kanyakumari, about the Kailas, long before the British set their foot on the soil of India. The Sanathana Dharma had always proclaimed “Loka Samastha Sukhino Bhavanthu”, a great thought not with much parallels. It is not for nothing that Prophet Mohamed blessed our country saying “blessed be the country that bears thy name”. Hind was the name of one of His consorts”. It was only after the British came, the feeling that all those who are born between the Himalayas and the Hindu Ocean are ‘Hindus’, slowly started vanishing, which ultimately led to the biggest catastrophe in history, the vivisection of the country, but for which India would have by now been one of the strongest of powers in the whole world. Please do not forget that ours is the country which owns the precious and richest language in the world - Sanskrit, which unfortunately is neglected on petty parochial considerations. Even Quatar, a Muslim Princedom has discovered that for use in Computers, Sanskrit is the best. It is a treasure house of all knowledges, the Sastras, the Vedas, the Upanishads etc., that give the world the message of prosperity, peace and tranquility. Let us not therefore, forget our own heritage, our own languages and our own proud culture.

 

English, but good English, certainly yes. But not the  English mind set. 

Motor Accidents Claims Tribunals' Jurisdiction to Deal

Cases under the Non-Statutory Insurance Policies

(By C.R. Kesavan, Advocate,Tirur)

 

Whether Motor Accidents Claims Tribunals lack jurisdiction to deal with cases for compensation pertaining to occupants/passengers covered under non-statutory insurance policies?: Chapter II of M.V. Act 1988 deals with Insurance of motor vehicles against third party risk. Requirements of Policies and limits of liability u/S.147 is only against third party risk and nothing more. As far as Insurance Companies are concerned Motor Accident Claims Tribunals constituted u/S.165 of the M.V. Act are only to adjudicate upon claims for compensation in respect of third party injury/death and third party property damage upto the extent of Rs. 6,000/- arising out of a use of motor vehicles in a public place.

 

In Pushpabhai’s case the Supreme Court in (1977 ACJ 343 (SC)) has repelled the contention that the words THIRD PARTY includes all persons except the insured and insurer under S.147 (1) (b) of 1988 Act.

 

Occupants and passengers in motor vehicles are not third parties is the consistent line of finding of the Supreme Court in (1991 ACJ 1) Mallawwa and Others v. The Oriental Insurance Co. Ltd., and in (2003 (1) KLT 165 (SC)) Asharani’s case and in (2006 (2) KLT 884 (SC)) United India Insurance Co. Ltd., v. Tilak Singh.

 

In statutory insurance policies a private car passenger, motor cycle rider and pillion rider are not required to be covered by any Insurance Company. Statutorily an insurer is not required to cover the risk of damage to the vehicle insured. Statutorily the insurer is not liable for any third party property damage for an amount exceeding Rs. 6,000/-.

 

Disputes between the insured and the insurer regarding the damage caused to the insured vehicle and the liability to third party property damage exceeding Rs. 6,000/- are to be taken up at the appropriate forum and not before the Motor Accidents Claims Tribunals because the Policy issued in such cases are beyond the statutory requirements and in all these cases the liability of the Insurer is contractual. When the liability of the insurer is not statutory but contractual, the matter cannot be dealt with by a Motor Accidents Claims Tribunal constituted to deal with third party claims and only limited categories of occupants/passengers in a motor vehicle specifically covered under the statute. Thus in statutory policies of insurance the risk of passengers in private car, rider/pillion rider of motor cycle are not covered. Under a non-statutory Policy of insurance, when the risk of passengers in a private car, rider/pillion riders of motor cycle and third party property damage exceeding Rs. 6,000/- are covered by a contract of insurance, disputes regarding compensation for such categories cannot be dealt with by the Motor Accidents Claims Tribunal as in the case of own damage to the insured vehicle since it is a contractual liability incurred by the Insurance Company not under statutory requirements. In this connection it is also significant to note that the proviso of option given to the parties either to maintain the claim before the Tribunal or to approach a Civil Court for adjudication regarding third party property damage exceeding the statutory limit u/S.110 of the M.V. Act 1939 is deleted while enacting S.165 of the M.V. Act 1988. The legal effect of the absence of a proviso to S.165 of the M.V Act 1988 as u/S.110 of the M.V. Act 1939 is that the Motor Accidents Claims Tribunals cannot usurp the jurisdiction of a property damage claim exceeding Rs.6,000/- even if there is contractual liability to the insurer exceeding Rs.6,000/- under a non-statutory Insurance Policy. It is also significant to note that the bar of Civil Courts to entertain cases u/S.175 of the M.V. Act 1988 is as regards matters arising under statutory policies of insurance issued by an insurer.

 

This aspect has been lost sight of by the Division Bench of our High Court while dealing the case reported in (2008 (3) KLT 778 - The New India Assurance Co. Ltd. v. Hydros) especially when the Division Bench found that the specific coverage for the risk of gratuitous passengers as per the conditions of the Policy are contractual liability incurred by the Insurance Company. Accordingly the Division Bench ought to have set aside the award of the Tribunal and referred the parties to adjudicate the claim before the Civil Court on the ground that it lacks jurisdiction. 

Literate Kerala, Bribes and a New Case of Mata: On the Limits of 
Judicial Patience and Legal Realism

(By Professor Werner Menski, SOAS, London University)

 

The recent decision by Basant J. in Aboobacker v. Rahiyanath (2008 (3) KLT 482) is another model lesson in the skilful management of socio-legal tensions in India today, highly instructive in several respects. This forthright and amazingly versatile judgment will be required reading for all my students in London this year. It should also be studied by all Indian law students, primarily to enhance their level of plurality-conscious legal education, which is often seriously deficient, as standard law teaching - in so many law schools, and not only in India -  remains deplorably descriptive, technical and flat. 

 

Four elements make this particular case interesting, well beyond Kerala and its specific facts and circumstances. Firstly, the case brilliantly illustrates the constant need for plurality-conscious management of law and negotiation of diversity by the State, and thus ultimately by Judges, in a complex jurisdiction inspired not only by colonial common law, but still also by ancient and current internally plural Indic traditions of vyavahara, a collective term for any type of dispute settlement, whether formal or informal. The case confirms that vyavahara, one of the ancient core concepts of Indian law, ultimately a device to maintain self-controlled order, means so much more than just ‘litigation’. It is indeed plurality-conscious navigation or ADR-like conflict resolution requiring a wide range of skills. Secondly, the case concerns the highly contested but now almost completely settled issue of post-divorce maintenance for Indian wives, specifically Muslim ex-wives and the precise ambit and meaning of mata, whatever that term in the Holy Qur’an exactly implied. Thirdly, adding spice and social drama, it involves a scenario related to polygamy, indicating how postmodern Indian law attempts to handle this universal problem, caused here, again, by childlessness in an otherwise happy marriage. Fourthly, the surprise element towards the end of the case report is the ex-Muslim husband’s dodgy argument that because he paid a bribe to secure a lucrative job as a teacher for his ex-wife, he should not be required to pay maintenance beyond the date of her re-marriage. The squealing ex-husband’s tortuous arguments are less shocking than funny: to what extent will outwardly devout Muslim men go to seek advantage through such dodgy pleading? Does God not watch everything? Is there no fear left of Judgement Day? Or did Aboobacker really pay the bribes and we are led to assume that God would condone such bribes, and hence a plurality-conscious Indian Judge should take account of this, too?

 

Overall, this case mainly raises questions about the extent of State involvement in a private drama that the main participants failed to negotiate sensibly among themselves. The main lesson in terms of vyavahâra may well be that going to court and pleading all sorts of dodgy things is not the wisest strategy in India today – it probably never was, anyway. But what a drama! It pains me far less than my current favourite Judge at the High Court of Kerala that such somehow unpalatable - but publicly known - facts are raised in a court of law. What about realism, then? Before we contemplate judicial indigestion, let me say that I hear nothing very different from many Indians that I have met over many years: Much can get done through bribes, not only in literate Kerala, but all over India, and now also among ‘dodgy Asians’ in the UK and elsewhere. No surprises here at all, but should such facts be judicially accounted for?

 

Of course Basant J. was rather indignant on hearing this particular claim by the ex-husband, and he certainly avoided becoming famous for holding that the contested Islamic mata could take the form of a bribe. So one sees the case swiftly closed with a few angry comments on the deplorability of bribes in literate Kerala. The thin line between sophisticated legal reasoning and the murky world of shady dealings, however, has again become visible for a moment. Let aspiring law students have no illusions about the high-flying majesty of law and potential clashes with low levels of morality in the real world. Decades ago, Professor Derrett used to write cynically that many outwardly pious people prayed by day and drank whisky at night. Today pious religionists bow to God one minute and bomb other humans into oblivion the next. Deep tensions between multi-billion dollar deals in ‘shining India’ and the crashed hopes of millions of investors when the bulls go mad and a major player collapses are again presently there to see for all. Welcome to Globalistan, a world that steadfastly refuses to become a better place and remains full of contradictions.

 

x     x     x

 

In Aboobacker, Basant J, clearly one of Kerala’s most experienced Judges at present, had before him an appeal by a Muslim husband against his divorced wife’s claim for excessive maintenance. How familiar! Most readers will know that in Indian law, under S.125 of the Criminal Procedure Code as modified in 1973, ‘wife’ came to include ‘divorced wife’, somewhat mystically implanted by an angry Durga in the shape of Indira Gandhi, but for good social and fiscal policy reasons that remain valid today. Readers will also be familiar with the fact that Indian men these days are often complaining vigorously when faced with ex-wives’ claims for maintenance. I get such cases even in London now. How unfair to see gendered tables turned! Poor men – but why do they not follow dharma, shari’at, izzat or simple reasonable standards in the first place and compensate the wife they seek to divorce? The thought that this may be reasonable is clearly not unique to traditional Islamic law. 

 

The basic socio-legal lesson these days may well be that it is no longer wise to divorce, perhaps rather preferable to enter polygamous arrangements. Actually, the husband in Aboobacker tried this, but failed, because the wife vigorously objected. So how should a reasonable man (and woman, one must add) react these days to a scenario of childlessness? Does one divorce a wife opposed to polygamy, or simply start another relationship? Does one ignore childlessness altogether? Decent societal values suggest that it is necessary to re-marry in such circumstances, if only to give the child fully legitimate status. In a Hindu nullity case in Delhi thirty years ago, Vinod Chandra Dube v. Aruna Dube (AIR 1977 Del. 24), the husband found that he had married a wife without a fertile womb. He did not go to court for many years, aware of society’s negative approach, but then he and his parents got older, and the dam of reservations against court action broke. The Judge granted nullity despite the wife’s strenuous arguments that many years of delay amounted to condonation of nature’s defect. The Judge, then, felt that the man should be allowed another chance to have a family, citing Hamlet and a lot of English cases. What a sea change in how Indian Judges deal with decision making now!  Basant J, in 2008, seems far less sympathetic to Aboobacker’s desire for paternal bliss and launches into a moralising mini-lecture in paragraph 49 about the institution of marriage.  While this culminates in idealistic talk of lasting friendship, it does not tackle the moral dilemma of the childless couple. What does one do in such a dharma dilemma?

 

In the present case, the Muslim husband used his continuing prerogative of talaq to free himself from the unsatisfactory marital bond and swiftly remarried. While we do not hear whether the new marriage resulted in offspring, our attention is correctly drawn to the predicaments of the divorced woman who refused the suggested polygamous accommodation. Evidently, law and life interact here closely, culture-specific social norms and values interlink with more narrowly conceived ‘legal’ rules. Law, as this case brilliantly illustrates, is indeed internally plural, and demands of us humans all the time to manage such internal diversities – but humans often fail because we are simply tempted to be too selfish. This is what the ancient Indian image of shark rule (matsyanyaya) was about. It may indeed require formal legal intervention on the part of a reluctant, otherwise ‘soft’ State and its judiciary. 

 

Aboobacker, a prosperous man after all, could simply have paid a generous compensation to his divorced wife, and there would not be this rather embarrassing case to his name. His wife would have had no reasonable claim and would have been advised to get on with her new life. One does not get the impression that the wife in the present case was vindictive. An educated woman, she simply dared to stand up for her basic rights against an unreasonably miserly ex-husband. She got her dues, ultimately, albeit more than seven years after the talaq divorce. It still remains all too true, therefore, that life does not favour Indian women in such situations and they have to fight for their rights. 

 

In Europe today, litigants face many similar problems of navigating conflicting normative orders. Some famous recent cases concerned huge and successful maintenance claims against rich men, others severely penalise polygamy. Notably, English law continues to deny pension rights to any polygamously married wife, totally out of line with other European jurisdictions, which sensibly split the pension entitlements between the various wives. Very recently, the Spanish Supreme Court confirmed the refusal of Spanish nationality, in 2002, to a polygamously married Senegalese man, strongly warning of ‘unbreakable limits’, stating bluntly that polygamy is ‘incompatible’ with Spanish law. Everywhere in Europe Muslims, men and women, risk running into trouble when they stubbornly insist that their laws should be respected by Western legal systems. The contested line between demanding respect for your religion and criminalisation of the ‘other’ constantly raises new questions about what is reasonable. It seems in Europe we are still in the early stages of learning to navigate legal pluralism and its constantly revised manifestations, while Indian courts are better at handling such challenges. Last month, a Shia father in the UK received a jail sentence for encouraging and allegedly forcing his young sons to whip themselves in a Muharram ritual till they bled. In an earlier case of the same kind, I was able to suggest a compromise, avoiding punitive action. In schools and in employment scenarios, hijabs and beards are often not allowed, leading Muslims (and others, one must note) to open their own private schools and to prefer self-employment over the hassles of dealing with culturally insensitive teachers and employers. If you want Friday to be your holy day in the UK, you can arrange for that privately now, it seems, while wearing ‘religious dress’ may still lead to dismissal or indirect refusals of job applications, with few effective remedies provided by secular legal systems. In France earlier this year, wearing a hijab was taken as an indication of unwillingness to adopt civilised French values, and was promptly used to withhold citizenship. While most Indian Muslims are learning to live in a plurality-conscious ‘secular’ legal order, many European Muslims become more isolated, running into difficulties by insisting that ‘their’ laws are superior to State laws. Unsurprisingly, States tend to hit back, only to be pulled back by courts, even the House of Lords recently (in  R (on the application of Baiai & Ors.) v. SSHD, (2008) UKHL 53), where it was confirmed to be unacceptable that English law should discriminate in favour of Anglican marriage arrangements. Learning to respect the position of ‘the other’ is a much-needed skill that needs to be practised by individuals and state legal systems alike. Judges remain key players in such ongoing scenarios of vyavahâra, especially once disagreements escalate, leave the private realm and reach courts.

 

x          x         x

So much about wider dimensions and an increasingly illiterate, newly multi-religious and super-diverse Britain, deeply troubled by around two million Muslims now, and constant demands for more official legal recognition of Islamic law, presently focused on whether the ubiquitous Sharia Councils are acceptable if renamed as ‘Muslim Arbitration Tribunal’. We have not even come to legal substance, we are still – or again - pussyfooting over procedural politics and naming games.

 

In literate historically multi-religious Kerala, Aboobacker v. Rahiyanath raises many important policy issues and surprisingly firm and authoritative substantive answers are provided to most of them. The basic circumstances are typical, simple Keralite facts: a female Muslim student of 19 marries a young Muslim male in 1985, continues her education, and goes abroad with the husband to work. She trains as a teacher. The couple becomes prosperous, lives happily together, buys a plot of land and builds a house on it in the husband’s name, and also goes on haj together. But there is one problem: there is no child, and medical interventions remain unsuccessful.

 

Not untypically, after 16 years of childless marriage, the husband then asks his wife for permission to marry another woman. Perhaps unsurprisingly in today’s world, she reacts badly, feeling betrayed and hurt. She bluntly refuses permission, whereupon he divorces her by pronouncing talaq on 3rd April, 2001. Only three weeks later, he marries another school teacher, but does not maintain his first wife, nor makes fair provision for her future, as divorcing men of any religion are now expected to do in India. The wife then swiftly proceeded to claim maintenance under S. 3 of the Muslim Women (Protection of Rights on Divorce) Act of 1986, already on 14th May, 2001, still within the iddat period, perhaps leaving the husband a last chance to pay her a fair amount before the end of the iddat. But friendship between the parties had evaporated, they had stopped negotiating sensibly. Now there was only formal vyavahara to come. 

 

Perhaps the husband should simply not have divorced his wife, but he appears to have become upset over her refusal to agree to a polygamous arrangement and then apparently became vindictive, trying to deprive her of a fair share of the couple’s wealth. Maybe she demanded too much initially, we do not know. Had he paid her off at that critical point, though, there would have been no court case. It is as simple as that.

 

The wife also remarried, but only on 12th May, 2004. Well before that, as already stated, she had filed her claim for maintenance under S.3 of the 1986 Act. With rather more delay than ambitious Indian law-making has laid down as the norm, her claim was decided by a Magistrate only on 31 July 2003, while the wife was still unmarried, directing the husband to pay Rs. 2,70,000/- as reasonable provision and maintenance, plus Rs. 50,000/- for some alleged debt, which could well have been some alleged dower debt. The husband then appealed for revision before the Sessions Court, which on 30th March, 2004 set aside the direction to pay the Rs. 50,000/-, but confirmed the larger sum, which had been arrived at through judicial discretion, applying the so-called multiplier multiplicand method of assuming Rs. 3,000/- per month as necessary expenses, calculated for 90 months. Are such figures just taken out of thin air, or are they built on reasonable assumptions?

 

Unsurprisingly, the stubborn and unnecessarily desperate husband found this particular calculation unfair and excessive in terms of amount and length of time. Advised to claim abuse of justice, he cleverly took recourse to S.482 of the Criminal Procedure Code, which grants extraordinary inherent jurisdiction to a High Court. The claim was not only that the maintenance award to the wife was excessive but, more interestingly – because the wife had meanwhile remarried on 12th May, 2004 - the ex-husband asserted now that he should only have to pay until the date of her remarriage. He should have known better, for the wife correctly claimed that what happened post-iddat is irrelevant for ascertainment of the quantum payable by the former husband.

 

Mr. Justice Basant clearly relished getting his teeth into such a complex contest, subtly indicating in para 8 of the judgement that “the questions raised are interesting and demand a detailed look…”. There follows a masterly historical analysis of the relevant law. With characteristic attention to detail, we are first provided an amazingly succinct lesson in Indian legal history, examining the management of the relationship of Muslim personal law and secular laws in India since the Criminal Procedure Code of 1898. Pinpointing the social welfare implications of S.488 of the secular 1898 Act, the learned Judge finds that, already by 1898, State involvement overrode religious loyalties when it came to avoiding vagrancy of an Indian man’s wife and children. Crucially, this position was later not allowed to be challenged or fettered by S.2 of the Muslim Personal Law (Shariat) Application Act, 1937.

 

In terms not dissimilar to what Mr. Justice V.R. Krishna Iyer (long may he live) would have said decades ago, the learned Judge of the current generation then swiftly explains (paras 10 and 11) how humane socialist concern for the weak and underprivileged (including neglected parents) underpins today the new provisions of S.125 in the Criminal Procedure Code of 1973, which boldly also included divorced wives. Examining this provision, and its relationship with S.127(3)(b) of the same Code, which at first sight appeared to exonerate Muslim husbands, the learned Judge refers with some pride to early judgements from “literate Kerala which has done a lot for the cause of emancipation of women in India” (para 13) and helped to clarify the legal position. 

 

The relevant law is well known, and the cases mentioned will be familiar to readers of the KLT, including Bai Tahira in 1979 and of the course the world-famous Shah Bano case of 1985. Basant J. identifies with razor-sharp precision that the central issue was actually all along the contested definition and implication of mata, a concept explicitly mentioned in the Holy Qur’an as a matter of obligation for devout Muslims. So we learn that there was in fact never any quarrel that mata had to be paid (paras 16 and 18).  Rather, the controversy in Indian law and discourse was over the naming of this remedy and, of course, its precise implications and ambit. Was it ‘maintenance’, ‘provision’, ‘gift’, or some kind of compensation for the fact that the Muslim husband could, at any time and without giving reasons, terminate the contract of marriage? 

 

Mr. Justice Basant thus explicitly links the origin of the 1986 Act to a pressing obligation on India’s secular legislature to clarify the diffuse meaning of mata, which then resulted, strongly in favour of the divorced Muslim wife’s interests, under S.3(1)(a) of the 1986 Act as “a  reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. By now we know that Rajiv Gandhi and his plurality-conscious secular advisers meant serious business with this kind of intricate wording, and the Supreme Court in Danial Latifi v. Union of India ((2001) 7 SCC 740) and (2001 (3) KLT 651), after 15 years of studied silence, has loudly and clearly endorsed this position. 

 

The 1986 Act, thus, clearly serves to protect the basic entitlements of divorced Muslim wives, seeking to protect them not only from vagrancy, but also in effect from unfair dismissal from a marital contract. Basant J. firmly holds that the 1986 Act, too, is not hit by the 1937 Act, since that Act, whose wording is painstakingly examined, could not prevail over a new statute on Muslim law. So here we have further evidence that demanding a new statute in 1986 was a crucial tactical mistake of India’s Muslim leaders. By 2001, it was thus absolutely clear, endorsed finally in that year by the Supreme Court decision in Danial Latifi, that divorced Muslim wives were entitled to fair and reasonable provision and maintenance, to be arranged and handed over to the wife during the iddat period. Any recalcitrant Muslim husband would be in trouble if he refused to pay such reasonable sums. As Aboobacker teaches all concerned, fighting windmills will simply cost men a lot of extra money in legal fees. The law on this important matter in postcolonial India is well-settled now and almost crystal-clear.

 

x     x    x

Several specific questions are addressed by the learned Judge in later parts of the judgment and require some comment here. In para 25, the issue is raised whether a divorced Muslim wife should be entitled only to maintenance from the date of divorce to the date of remarriage. So if the husband paid that, would he be absolved from further liability to pay any additional amounts as fair and reasonable provision and maintenance under S.3 of the 1986 Act? 

 

While the reasoning on this has been contested in the Kerala High Court and elsewhere, I think the answer could be clearer than given in the present case. It must be correct, indeed, that remarriage does not have any impact on this matter. But the reason is, in my submission, because the explicit wording of S.3(1)(a), namely “a  reasonable and fair provision and maintenance”, as already noted in Ali v. Sufaira (1988 (2) KLT 94), implies two different types of payment. Maintenance is first of all for the period of iddat, which is uncontestable, and where one can bargain at best over the precise length of the iddat and the daily amounts of maintenance needed by a specific divorced woman. The additional term ’provision’, on the other hand, namely the main component of what mata is supposed to mean, I submit, is not explicitly time-bound in any form and should simply be fair and reasonable in the circumstances of a specific case. 

 

This is why it is entirely correct for Mr. Justice Basant to argue that a divorced Muslim wife in India certainly has a larger right than any other divorced wife in Indian law, and that this is also constitutionally halal. It is thus also correct to reiterate (para 31) that even a millionaire wife can get more from a husband who can fairly part with additional resources for the ex-wife’s benefit. On the other hand, what may happen in case of a desperately poor Muslim couple was not at issue in the present case. While it is unlikely to come to courts in the first place (but such cases are probably seen at Magistrates Court or Family Court level), it would help if Indian Judges could firmly state, whenever appropriate, even if this be obiter, that a desperately poor Muslim ex-wife can still bargain with her desperately poor ex-husband, so that she should not just be dumped into oblivion. A few pots and pans, and some old clothes, even the odd item of jewellery, are better than nothing at all. Above all, it is important to emphasise that the divinely ordained obligation of taking care of ‘the other’, in this case of mata, does not go away just because the husband himself is desperately poor. The provision of mata in such unfortunate circumstances still hovers over the ex-husband’s head and he cannot just disown the former wife. A clear judicial statement to that effect, in an appropriate case, would at least discourage moderately prosperous Muslim men from simply claiming destitution and utter inability to make any kind of provision for the ex-wife. Literate Kerala remains full of poor people, so such a strategy may well be socially effective to shift the power balance that little more towards poor women faced with divorce.

 

The Indian courts have already held, in effect, that such an obligation in principle exists. In Aboobacker, Mr. Justice Basant reiterates several times that is the obligation of mata itself is not contested. This obligation in principle ought to be impressed on poor men, too, just as Hindu men have been told in quite a few cases that as long as they are able-bodied people, they are expected to maintain their ex-wife rather than relying on others, or even on the wife (see e.g. Kanchan v. Kamalendra, AIR 1992 Bom. 493, at 494; Durga Singh Lodhi v. Prembai (1990 Cri.L.J. 2065 (M.P.), at 2067). Men as providers evidently need to be reminded of this basic role and the resulting presumptions from time to time. Activist Indian Judges should have no hesitation to give voice to their social consciousness in this respect.

 

From para 33 onwards, the next issue for debate in Aboobacker is the relationship of rights under S.3 of the 1986 Act and similar rights under S.125 of the 1973 Code. Could it be argued by crafty husbands that the 1986 Act has extinguished the rights of Muslim divorced wives under S.125? Again, Mr. Justice Basant alertly and swiftly plugs this potential loophole. Nothing going! The rights in the general law of S.125 Cr PC continue to apply despite the presence of the later personal law. This new personal law did not extinguish the earlier general law rights, adding thus in effect to the argument that Muslim ex-wives in India have better and stronger rights than other divorced women. Quite clearly, no more argument is possible about that now. 

 

Next in para 37, the nature of the relationship between sections 5 and 7 of the 1986 Act and S.125 of the 1973 Act are at issue. Here, too, the potential loophole is sought to be plugged by reasoning to the effect that the Muslim woman’s rights under S.125 do not stand extinguished. Notably, however, this firm judicial finding is supplemented in para 38 by the learned Judge’s conclusion that the Danial Latifi case did not really conclude this matter. So we are likely to see more case law on this subject, in due course, also because of the finding in para 40 that Abdul Gafoor Kunju v. Pathumma Beevi (1989 (1) KLT 337) may need reconsideration by a larger Bench in an appropriate case. What is clear, though, is that the divorced Muslim woman’s rights under S.3 of the 1986 Act “can be said to be superior and larger” (para 41) than the rights under S.125.

 

Regarding quantum of fair and reasonable provision and maintenance, there is really nothing to add in terms of substance. This is another very clear part of the judgment, including the wise comment that divorce is an unenviable situation, so that “[t]he best option is not to divorce at all and not to fracture such a sublime institution of marriage” (para 45). Having already found earlier that the date of remarriage is irrelevant in principle, also because holding otherwise would encourage husbands to become even more recalcitrant in the hope of saving money, the learned Judge finds in favour of the wife who refused to accept the husband’s suggestion for polygamous arrangements and confirms that the husband remains liable to pay Rs. 2,70,000/- to the former wife. 

 

x       x       x

 

Lastly, the issue of bribes is raised. This is the real India, too. Welcome to the world of shady deals. Apparently, the husband had instructed his lawyers to plead that he should not have to pay any mata to his ex-wife, because he had already paid a bribe to secure her a job as a teacher in a private school. I can sense Mr. Justice Basant hyperventilating: What a disgrace to literate Kerala, indeed! The wife, of course, denies that any such payment was made and claims that she secured employment through her own merit. Refusing to delve deeper into this matter, the learned Judge closes the judgement with some brief moralising statements about such issues. Here the strong sense of realism capitulates against the force of a hidden malady that raised its head not for the first time. A protective shutter thus came crushing down swiftly and heavily on the husband’s purse. And quite rightly so, since God, I am sure, would not look kindly upon an argument that bribing school officials could be seen as a form of mata. Whatever that concept was meant to be, it was supposed to protect the Muslim wife against vagrancy. While bribing someone in power to give your abandoned wife a job sounds humane and may even be seen as reasonable, I doubt that this would be treated as Islamically acceptable. Probably the less said the better. Clearly, here again, law and real life collide, and our sense of realism suggests that they also collude from time to time.

 

x      x       x

In conclusion, we see alert Indian Judges continuing in ongoing vigorous struggles to protect the entitlements of divorced Muslim wives to mata, whatever that may precisely mean in today’s legal English. The present case also confirms impressively that the somewhat infamous Shah Bano case remains good law in India, despite what many foreign observers and myopic local commentators have written. In India, Judges continue to make law, much more so than scholars with their politicised comments. This was authoritatively re-asserted by the Supreme Court in Danial Latifi in 2001 and is also eloquently reinforced in Aboobacker. 

 

But in the ongoing struggle over the management of cultural diversity in India’s post-divorce maintenance regime, some Muslim men still keep trying to fight windmills. This was not the last case we are going to see on this subject. But this desperate male chauvinist activity is becoming ever more dangerous and results now in image-defacing decisions like Aboobacker. This latest Don Quixote, again a chivalrous prosperous Keralite male, ran into the windmill powered by Basant J, giving rise to yet another notable decision from this Judge and a model lesson in Indian socio-legal analysis of the new millennium. 

 

I have heard English Judges say in cases of divorce and ancillary relief that they have to make sure that there is no charge on public funds as a result of their decision. In India, we should note, such considerations are not even mentioned as a reason for why men should continue to pay maintenance to ex-wives. The discourse, to some extent driven by devious litigants, is conducted in terms of religion and conflicts of personal law and general law. In England, there is a notably different discourse, but there are also many strategic silences. The welfare State used to assume - or at least claim - that it would be able to afford looking after destitute divorcees. We have gone quiet on that in Europe, as more and more States are realising today that this social welfare approach is fiscally unrealistic. Moreover, such lofty policies are too easily exploited by crafty individuals who claim entitlements or engineer situations of need to salt away private assets and make unjustifiable gains. I find it somewhat alarming that current social science research should refer to Somali male refugee assumptions that equate traditional cattle raiding (and resulting proof of masculinity) with hoodwinking unsuspecting modern welfare States out of benefits, because it may not be right in terms of status that a proud male should  be doing certain types of work. Related recent discussions about clear-up operations regarding widespread abuses of disability benefits are further alarming indications that ‘dodgy’ claims are by no means restricted to literate Kerala. 

 

In the present Indian scenario, the State clearly realises that it needs to fall back on society, on families, and particularly on men. All men, and not just Muslim men, as providers and controllers of resources. There is no reason here for Muslim males to feel victimised. If, as in the present case, a wife trusts her husband and puts all her eggs in his basket, that basket must become a protective safety net also for her, which will then need to yield fair and reasonable provisions for this women’s survival, whether she remains married to this particular man or not.

 

Unlike Pakistani law, of course, Indian law is not constitutionally required to test whether a particular law or amendment is Islamically correct. It seems to me that this frees the mind for deeper consideration of the higher purpose of mata. The focus in Indian law rests quite appropriately on whether the social welfare task of mata was accomplished in any particular set of circumstances. In this context, ignoring the allegations of bribe and just making a few indignant comments, while otherwise holding the wife entitled to the full amount of provision earlier determined seems entirely appropriate in Aboobacker, both from a social welfare perspective and an Islamic viewpoint. As indicated by Mr. Justice Basant, not all women might wish to remarry, and thus a comprehensive welfare net would need to account for scenarios where a divorced Muslim wife chooses not to remarry. I was intrigued that in para 50, the learned Judge actually commented on this when talking about the trauma of divorce: “The helpless plight of the spouse obliged to offer her body and mind to different men in quick succession cannot be lost sight of by a compassionate court”. Are these not echoes of Bai Tahira v. Ali Hussain Fissalli Chothia (AIR 1979 SC 362)? Here, at p.365, Mr. Justice Krishna Iyer (as he then was at his best in the age of Indian Supreme Court activism), thundered that adequacy of payment was the key issues, lest a woman “was ready to sell her body and give up her soul!”. 

 

Maintenance cases, we may need to be reminded, are not only about money. Like bribery, they are also about morality. Surely, forcing Muslim women into remarriage because of vagrancy should count as a form of endorsing zina? This dimension of the potential problems for divorced Muslim wives, anywhere in the world, has not been debated openly, but is in fact a major lesson that the Islamic countries of the Indian subcontinent, and not only those countries, ought to take more seriously in years to come. India clearly leads the way here and provides a guiding light to Islamic countries in demonstrating how plurality-conscious management of competing expectations of divorce, remarriage and sexual morality are to be managed in the 21st century. Bribe or no bribe, the key issue remains ensuring, as best as possible, the decent survival of divorced Muslim wives. The present case, closing all kinds of loopholes for further disingenuous male arguments, is thus an important milestone on India’s road to improved financial safety for divorced Muslim wives. It also indicates that, without much fussing, persistent judicial activism at all possible levels can continue to strengthen India’s post-modern social welfare net, helpfully also exonerating in the process the State’s stressed coffers. 

 

I see important continuities here with ancient Indian and other traditional methods of dispute settlement in family affairs, and one hopes that the message to Indian men of any religion is crystal clear: Pay up and hand over what is due to your ex-wives, do not waste money on fighting windmills and feeding lawyers to produce obnoxious arguments in the courts of any country. It is neither halal nor fair to do this in today’s increasingly gender-conscious world, and we do not even have to engage in fashionable and piously laborious human rights talk to bring out such messages. Realist navigation of competing claims in a spirit of altruism, caring for ‘the other’, is as much an element of the underlying mentalité of India’s vyavahâra and its modern manifestations as of the Islamic concept of mata and its contemporary interpretations. Aboobacker’s case teaches us that conflicting expectations can be overcome and reigned in by experienced, plurality-conscious Judges with a lot of patience, even when faced with dodgy claims.

Summons and Bail 

(By T.M. Rajasekharan, Advocate, Calicut)

 

The decision of the Kerala High Court in Sreekumar v. State of Kerala (2008 (3) KLT 748) ought to have covered one more problem confronting the accused persons who appear before a criminal court on receipt of summons. It has become an unnecessary practice that an accused person appearing before a court on receipt of summons in Form I Cr.P.C. should offer for bail. When he is decent enough to appear on summons, offering for bail with sureties is meaningless. At the best, he has to be released on self bond.

 

         Summons in Form I (S.476 R/W.61) reads as follows:

         To                                     (name and address of the Accused)

 

        Whereas your attendance is necessary to answer the charge of (State shortly the offence charges) you are hereby required to appear in person (or by pleader as the case may be) before the Magistrate of                         on the day of           herein fail not.

 

        Dated this                                      day of

        (Seal of the Court)                                                                                                  (Signature)

 

Nowhere in the Form I it is stated that he should offer for bail, far from requiring him to produce sureties. His presence is not necessary if he appears through pleader duly appointed, except for recording plea or framing charges. Even this can be performed through counsel. When the summons does not call for bringing sureties, the learned Magistrates are not right in remanding the person for want of sureties. Such acts are not merely unfriendly and inhuman, but a challenge on the integrity of the honest citizen of the country.

 

In most other States, when accused person appears on summons is released on executing self bond regardless to the fact whether the offence alleged is bailable or nonbailable. I must add that in spite of innumerable judgments of Supreme Court and High Court on the right of bail, releasing an accused person from court on bail even in bailable offences is a nightmarish experience owing to unwanted and cumbersome formalities of bail. Considerable time of the court can also be saved if bail is not insisted upon. Only when the person defaults in appearance the court need require him to produce sureties.

 

I feel that the High Court’s attention is drawn to the sad plight of accused persons on this aspect as well.

Speedy and fair Trial -- Setting up of Fast Track Courts for

S.138 of Negotiable Instruments Act

(By Dr. Justice AR.Lakshmanan, Former Judge, Supreme Court of India, 

Chairman, Law Commission of India)

 

1. The value of a cheque, which was reduced to merely a piece of paper, particularly amongst the business community, has been greatly enhanced since the introduction of a new Chapter XVII (Ss.138 to 147) relating to penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts. The implementation of these provisions for nearly 15 years revealed certain shortcomings which have been endeavoured to be plugged by the Negotiable instruments (Amendment & Miscellaneous Provisions) Act, 2002.

 

2. The law relating to negotiable instruments is not the law of one country or of one nation; it is the law of the commercial world in general, for, it consists of “certain principles of equity and usages of trade which general convenience and common sense of justice had established to regulate the dealings of merchants and mariners in all the commercial countries of the civilized world”. Even now the laws of several countries in Europe are, at least so far as general principles are concerned, similar in many respects. Of course, on questions of detail, different countries have solved the various problems in different ways, but the essentials are the same, and this similarity of law is a pre-requisite for the vast international transactions that are carried on among the different countries. 

 

3. In India, there is reason to believe that instruments of exchange were in use from early times and we find that papers representing money were introduced in to the country by one of the Muhammadan sovereigns of Delhi in the early part of the fourteenth century, the idea having been borrowed from China; and it is the accepted theory of the western savants, that in China a complete system of paper-currency and banking had been developed as early as the tenth century and it is not improbable that such an idea filtered into India sometime later.

 

4. Before the passing of the Act, the law of negotiable instruments as prevalent in England was applied by the courts in India when any question relating to such instruments arose between Europeans.

 

Ingredients of the offence

 

5. To constitute an offence under S.138 of the Negotiable Instruments Act the following ingredients need to be fulfilled:

 

1. Cheque should have been issued for the discharge, in whole or part, of any debt or other liability.

 

2. The cheque should have been presented within the period of six months or within the period of its validity, whichever is earlier.

 

     Note. - The cheque may be presented any number of times for collection within its validity.

 

3. The payee or the holder in due course should have issued a notice in writing to the drawer within thirty (fifteen prior to 2002 amendments) days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

 

4. After the receipt of the said notice by the payee or the holder in due course, the drawer should have failed to pay the cheque amount within fifteen days of the receipt of the said notice.

 

   Note: Notice of dishonour is unnecessary when the party entitled to notice cannot after due search be found (See S.98, Negotiable Instruments Act).

 

5. On non-payment of the amount due to the dishonoured cheque within fifteen days of the receipt of the notice by the drawer, the complaint should have been filed within one month from the date of expiry of the grace time of fifteen days, before a Metropolitan Magistrate or not below the rank of Judicial Magistrate of the first class. The cognizance of a complaint may be taken by the Court after the prescribed period, if the complaint satisfies the Court that he had sufficient cause for not making a complaint within such period.

 

6. The offence under this Act is compoundable (inserted by the 2002 Amendment Act).

 

6. Under law, when a person has tendered the amount payable by him he must be deemed to have discharged his obligation and the creditor is bound to accept the tender. Where on dishonour of cheque issued by the accused, the party disclaimed the liability to pay the cheque but on receiving notice tendered payment of the whole amount twice in front of the court but the complainant refused to accept it both the times, the accused could not be said to be guilty of non-payment of the amount.

 

7. The above position is again reiterated by the Apex Court in Indira (K.R.) v. Adinarayana (Dr. G.), what follows therefrom is that the last ingreditent to complete an offence under S.138 of the Act is failure of the accused to make payment within 15 days after service of notice. If payment is made within the said notice period then no offence is committed but in case of failure the offence gets completed. Even if the payment is made on the 16th day the same is not sufficient to come out of the rigours of S.138 of the Act. In Criminal law, commission of offence is one thing and prosecution is quite another. Commission of offence is governed by S.138 of the Act. Prosecution is governed by S.142 of the Act.

 

Trial of Offence; Summary Procedure

 

8. Provisions of S.143 as inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 state that the trial in a case filed under S.138 of the Act shall be tried in a summary manner. Though it begins with a non-obstante clause carving out an exception to the provisions of the Criminal Procedure Code, sub-s.(1) thereof clearly provides that the provisions of Ss.262 and 265 of the Code, as far as may be, applied to such trials. It empowers the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine not exceeding five thousand rupees. It also provides that if it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed, he can do so after hearing the parties and recalling any witness who may have been examined. Under this provision so far as practicable, the Magistrate is expected to conduct the trial on day-to-day basis until its conclusion and conclude the trial within six months from the date of filing of the complaint.

 

9. Chap.XXI of the Criminal Procedure Code, consisting of Ss.260 to 265, deal with the procedure to be followed when the case is being tried summarily. In every case tried summarily, in which accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. Successor Magistrate can act on the evidence recorded by his predecessor either in whole or in part. There is no need to conduct the retrial or de novo trial, where the cases were conducted as summons or warrant cases. Therefore, if the Magistrate records the evidence, as is done in regular summons case the succeeding Magistrate can act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself.

 

10. If a case under S.138 of the Negotiable Instruments Act, which requires to be tried in a summary way as contemplated under S.143 of the Act, is in fact, was tried as regular summons case it would not come within the purview of S.326(3) of the Code of Criminal Procedure. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as regular summons case, it need not be heard de novo and succeeding Magistrate can follow the procedure contemplated under S.326(1) of the Code. However, a case tried in a summary way by following the procedure contemplated by the provisions of Chap.XXI of the Code, and in particular Ss.263 and 264 therein, alone is intended to be excluded from the purview of S.326 of the Code.

 

11. In a recent case, the entire evidence was recorded by one Magistrate and the judgment was delivered by another Magistrate. The evidence recorded by the Magistrate was full-fledged evidence led by the parties and admittedly, it was not in the form indicated in S.264 of the Code. The case was not tried in a summary way and was in fact tried as regular summons case through it was triable summarily under S.143 of the Act. The objection raised by the accused was held not sustainable.

 

Punishment

 

12. (a) Prior to 6.2.2003.--The person committing an offence under this section, without prejudice to any other provision of the Act, was liable to be punished with imprisonment for a term which may extend to one year, or fine which may extend to twice the amount of the cheque or with both.

 

13. (b) On and from 6.2.2003.--S.138 has been amended by the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002. It enhances the punishment for dishonour of cheque from “a term which may extend to one year” to “a term which may extend to two years”, w.e.f. 6.2.2003.

 

14. As held by the Supreme Court, the non-obstante limb provided in S.142 of the Act is not intended to expand the powers of a Magistrate of first class beyond what is fixed in Chapter III of the Criminal Procedure Code. S.29, which falls within Chap.III of the Code, contains a limit for a Magistrate of first class in the matter of imposing a sentence. If the sentence is imprisonment it shall not exceed 3 years and if the sentence is fine (even if it is a part of the sentence) it shall not exceed Rs.5,000. When the case has ended in conviction, it would be obligatory for the court to award a compensation that would be commensurate with legal principles of fair play which should not be less than the fact value of the cheque, the interest computed at 18% per annum and the costs that may be computed by the court. The legislature has provided for the upper limit of twice the face value of the cheque.

 

Compounding of offence

 

15. By inserting S.147 in the Negotiable Instruments Act by the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 w.e.f. 6.2.2003, offence punishable under S.138 of the Act has been made compoundable and it does not provide for any other or further qualification or embargo like sub-s. (2) of S.320, Cr. P.C. The parties can compound the offence as if the offence is otherwise compoundable. Thus, the offence is made straightway compoundable like the case described under sub-s. (1) of S.320, Cr. P.C. No formal permission to compound the offence is required to be sought for.

 

16. Even prior thereto the opinions expressed by different High Courts and also the Apex Court appear to be in favour of approving such compounding and settlement between the parties, taking into consideration the aim and object of the provisions of the Act. Therefore, the matter in relation to which the cheque had been issued had been settled between the parties and inasmuch as such settlement may have to be given effect to keeping in mind, the object of introducing the relevant provisions of the Act, the court can note the same and record the settlement between the parties.

 

Delay in Disposal of Cases; Practice and Procedure

 

17. The object and inherent intention of enacting the said provisions is that the legislature was extremely keen and anxious in ensuring expeditious disposal of cases pertaining to dishonouring of cheques. It has been emphasized that the courts have to give meaning and translate the legislative intention of the Parliament. The Courts must adopt suitable and effective procedure to achieve the legislative objects. The Courts procedure also has to be designed to fulfill the object and intention behind incorporating the said provisions. In other words, it is the obligation of the courts to develop or carve out the procedure by which the complaints filed under these provisions are disposed of as expeditiously as possible. As observed and advised by the Bombay High Court:

 

(a) Experience reveals that enormous time is spent at the stage of summoning/serving the accused. The court must adopt pragmatic methods and must serve them by all possible means of service, including e-mail. The Court must ensure that the accused are not permitted to abuse the system.

 

(b) The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complaints must be concluded within three months of assigning the case.

 

(c) Complaints must be disposed of as expeditiously as possible, and in any event, within six months from the date when the presence of the accused has been secured.

 

ACCESS TO JUSTICE

(Courtesy: Voice of Justice, Vol. I by Dr. Justice AR. Lakshmanan)

 

18. The Constitution of India guarantees to all its citizens rights of life and personal liberty, right to equality, right to freedom etc. Apart from these public rights, there are various private rights arising from torts and contracts and also the various social welfare legislations such as Contract Labour (Regulation and Abolition) Act, 1976, Equal Remuneration Act, Minimum Wages Act and so on. But these rights are of no avail if an individual has no means to get them enforced. Rule of law envisages that all men are equal before law. All have equal rights but unfortunately all cannot enjoy the rights equally. The enforcement of the rights has to be through the courts, but judicial procedure is very complex, costly and dilatory putting the poor persons at a distance.

 

19. The Constitution of India through Art.14 guarantees equality before law and equal protection of laws. It follows from this that equal opportunity must also be afforded for access to justice. It is not sufficient that law treats all persons equally, irrespective of the prevalent inequalities. But law must function in such a way that all the people have access to justice in spite of the economic disparities. The word ‘access to justice’ focus on two basic purposes of the legal system. 

 

1. the system must be equally accessible to all.

2. it must lead to results that are individually and socially just.

 

20. Traditional concept of “access to justice” as understood by common man is access to courts of law. For a common man a court is the place where justice is meted out. But the courts have become inaccessible due to various barriers such as poverty, social and political backwardness, illiteracy and ignorance etc.

 

21. To get justice through courts one must go through the complex and costly procedures of litigation. One has to bear the costs of litigation including court fee, stamp duties etc and also the lawyers fees. Apart from these the litigant looses much more in financial terms such as loss of income arising from attending the court hearings. A poor litigant who is barely able to feed himself will never be able to get justice or obtaining redress for a wrong done to him through courts. Further a large part of the population in India is illiterate and live in object poverty. Therefore they are totally ignorant about the court procedures and will be terrified and confused when faced with the judicial machinery. Thus most of the citizens of India are not in a position to enforce their rights, constitutional or legal, which in effect generates inequality contrary to the guarantees of Part III of the constitution.

 

22. Large population, more litigation and lack of adequate infrastructure are the major factors that hamper our justice system. Regular adjudication procedures through the constant efforts of Legal Services Authorities will act as catalysts in curing these maladies of our system. 

 

23. Time has come to think to provide a forum for the poor and needy people who approached the law Courts to redress their grievance speedily. As we all know the delay in disposal of cases in law Court, for whatever reason it may be, has really defeated the purchase for which the people approach the Courts to their redressal. Justice delayed is justice buried. So we will have to find out a via media between these two to render social justice to the poor and needy who wants to seek their grievance redressed through Law Courts.

 

24. The Constitutional promise of securing to all its citizens justice, social, economic and political as promised in the Preamble of the Constitution cannot be realised unless the three organs of the State i.e. legislature, executive and judiciary join together to find ways and means for providing to the Indian poor equal access to its justice system.

 

25. The judiciary has tried to do this through Public Interest Litigation movement but this movement has now lost much of its momentum. The executive is balking at enforcing the courts orders in Public Interest Litigation cases. The persons undertaking PIL cases are misusing the opportunity provided or they are not able to fully utilise the opportunity.

 

26. The speedy trail is guaranteed under Art.21 of the Constitution of India. Any delay in expeditious disposal of criminal trial infringes on the right to life and liberty guaranteed under Art.21 of the Constitution of India. The debate on judicial arrears has thrown up number of ideas on how the judiciary can set its own house in order. Alarmed by the backlog of inordinate delay in disposal of cases, Fast Track Courts or Special Courts have to be constituted. Thus, Fast Track Courts are to tackle the S.138 cases as the graph of such pendency is very high and alarming. It is high time to restore the confidence of people in this country in judiciary by providing speedy justice.

 

27. Infrastructure for the Fast Track Courts is to be provided by the State Government and the selection of the Judges is to be made by the High Court. The scheme includes construction of new Court rooms, appointment of ad hoc judges, Public Prosecutors and supporting staff and arrangement for quick processors. Though it is appropriate to have our in-service Judicial Officers to be appointed in these Courts, after giving them promotions on purely temporary ad hoc basis initially for two years, extendable by another two years or till they are promoted on regular basis, these appointments shall be made as far as possible only in Fast Track Courts. Their future regular promotion shall depend on their performance in these Courts. Those Officers who are not found fit to travel on fast track, shall be off-loaded and sent back to their regular cadre. It is a joint venture of the Central Government, State Government and the High Court to tackle the problem on war footing. It is needless to say that realization of real justice needs co­operation of all the three wings of the Government with one single aim to reach out justice to individuals and thus, maintain rule of law. Interaction between the three wings of the Government is necessary to improve the justice delivery system and such co-operation should be seen in day-to-day dispensation of justice. Sessions trials in several Courts in the country are held up because of unwanted adjournments on just asking either by the defence counsel or Public Prosecutor, not examining the witnesses within the scheduled time and the non-co-operation of the prosecuting agency. There is a general complaint that the Police has no sufficient time or force to serve in time the summons on the witnesses and keep the under trial prisoners present in the Court at the time of trial. There are instances coming to light that the offenders are sentenced but sentences imposed, are not executed because the convicts had already jumped bail and the police has no will and time to search them out.

 

28. The Law Commission earnestly request all the Presiding Officers of the Fast Track Courts and the Staff Members, Lawyers and prosecuting agency to extend their unrestricted co-operation in achieving the goal and to clear backlog of lakhs and lakhs of S.138 cases pending throughout India in all Magistrate Courts.

 

29. It is not uncommon for any criminal case to drag on for years. During this time, the accused travels from the zone of “anguish” to zone of “sympathy”. The witnesses are either won over by muscle or money power or they become sympathetic to the accused. As a result, they turn hostile and prosecution fails. In some cases, the recollection becomes fade or the witnesses die. Thus, long delay in Courts causes great hardship not only to the accused but even to the victim and the State. The accused, who is not let out on bail, may sit in jail for number of months or even years awaiting conclusion of the trial. Thus, effort is required to be made to improve the management of the prosecution in order to increase the certainty of conviction and punishment for most serious offenders. It is experienced that there is increasing laxity in the Court work by the police personnel, empowered to investigate the case.

 

30. Judiciary today is more deserving of public confidence than ever before. The judiciary has a special role to play in the task of achieving socio-economic goals enshrined in the Constitution while maintaining their aloofness and independence the Judges have to be aware of the social changes in the task of achieving socio-economic justice for the people.

 

Justice at Easy Reach

 

31. The Indian Judicial system is constantly exposed to new challenges, new dimensions and new signals and has to survive in a world in which perhaps the only real certainty is that the circumstances of tomorrow will not be the same as those of today.

 

The need of the hour is to correct misconception about the Judiciary by making it more accessible and more explicit, by utilizing the resources available to improve the service to the public, by reducing delays and making courts more efficient and less daunting.

(Courtesy: Voice of Justice, Vol.II by Dr.Justice AR.Lakshmanan)

32. The criminal justice system in the country is designed to protect the citizens of this country from the onslaught of criminal activities of a section of the community which indulges in such acts. The outcome of any criminal justice system must be to inspire confidence and create an attitude of respect for the rule of law. An efficient criminal justice system is one of the cornerstones of good governance. When we think of criminal justice system it consists of the police, prosecuting agency, various courts, the jail and the host of other institutions connected with the system. The State as a guardian of fundamental rights of its citizens is duty-bound to ensure speedy trial and avoid excessively long delays in trial of criminal cases that could result in grave miscarriage of justice. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. But, unfortunately, there are a large number of cases pending in various courts. Various factors contribute to large pendency of criminal cases in the subordinate courts. Speedy trial of criminal cases should be recognized as an urgent need of the present judicial system in order to decide the fate of lakh of litigants. It will help enhance the faith of general public in the present judicial system. In order to have a strong socio-economic system, it is important that each and every state of trial of an accused should move at reasonably fast pace. Speedy trial ensures that a society is free of such vices. The new system of plea bargaining incorporated in the Criminal Procedure Code shall be available to the under-trial prisoners and the court and the prosecuting agency and the lawyers should make them aware of the benefits of the benevolent provision incorporated in our statute.

 

33. The challenges before the criminal justice system are to balance the rights of the accused while dispensing speedy and effective justice. The criminal justice system machinery must also meet the challenge of effectively dealing with the emerging forms of crime and behaviour of the criminals.

 

34. On many occasions, delay in the process of trial is caused by the accused themselves. The accused know that any delay in trial would only help him as the memory of the witnesses is likely to be blurred by the passage of time.

 

35. In the trial of criminal cases a Judge should be a little more active and he can contribute to a great extent in preventing the delay in the administration of justice. On many occasions the Sessions Judges adjourn the cases for long period and the delay is thus caused and many witnesses who would have supported the prosecution case lose interest in the case and often forget the ethical duty cast on them.

 

36. In most of the cases, the blame for delay in administration of criminal justice system is put at the door of the courts. Courts are over congested with petty cases and many legislations are being enacted which result in filing of large number of cases before the courts. Inclusion of additional forms of crime, for example, S.138 cases under the Negotiable Instruments Act or S.498A in the Indian Penal Code, contributed a large number of cases in the criminal courts. Some of the new legislations like, Domestic Violence (Prevention) Act, have come up which contribute some more cases to the criminal courts. To deal with these types of cases we do not have additional number of courts, we do not have additional infrastructure. In many States sufficient budgetary provisions are not made for improving the infrastructure of the subordinate courts, including additional improvement of existing courts, court complexes.

 

37. We require modernization and computerization of our criminal justice system. In many States courts are functioning from rented places. The building which was constructed for the purpose of residence is being used to house courts. There should be sufficient sitting arrangement for the witnesses or the clients. There should be suitable building for the proper functioning of the courts. The prosecuting agency should be given sufficient facilities for the court to conduct the cases. The accused and the witnesses should have resting rooms if the trial has become lengthy. All this could be provided only if there are courts with modern facilities. The States should gradually improve the infrastructure and there must be sufficient budgetary allocation in each year. Now the courts are provided only with budgetary allocation for the payment of salaries of staff members of the courts and for day-to-day expenses for running the courts. This situation could be changed, if sufficient funds are allocated every year for starting new courts and also to improve the conditions of the existing courts. The starting of Fast Track Courts have helped to a great extent in disposing of the pending Sessions cases and that, by itself, has proved that it is because of lack of large number of courts that the pendency of criminal cases is on the rise.

 

38. Regarding de-congestion, greater responsibility lies on the shoulders of Governments of State or Centre. They are biggest litigants in the courts. They should approach the courts or contest cases only if necessary and not just to pass on the buck or contest for sake of contesting. The time consumed in most of the cases by Courts of Sessions is somewhat under control and the most of the cases are decided in a reasonable time schedule. Main problem is about huge pendency in Magisterial Court and the High Courts. It is absolutely essential to have additional Courts for specifically trying the complaint cases filed under S.138 of the Negotiable Instruments Act. The present state of affairs defeats the very object with which the provision was inserted in the Negotiable Instruments Act. Further, large numbers of petty offence cases have to be taken out of the normal court channel to be decided by the Special Magistrates by appointing the retired officers as Special Magistrate. 

 

39. Dishonoring the Cheque is crime in India. But we hardly see any people are punished for bouncing the Cheques. People do not trust the Bank Cheques. But in developed countries, it is common practice to use Cheques as a mode of payment. Retail shops will accept Cheques even to the stranger because bouncing the cheque will spoil the credit history. No one dare to dishonor the Cheque. We have to implement the same in India too. If any person dishonors the cheque (3 times), his Bank account should be closed automatically. Moreover he should not be allowed to handle the Cheque from any Banks in India for a year. (3 years maximum). This will fetch respect to our Bank Cheques.

 

40. The Supreme Court in the judgment reported in (2004 (3) KLT 93 (SC) = JT 2003 (9) SC 451) Goa Plast (P) Ltd. v. Chico Ursula D’Souza (Justice B.P. Singh and Dr. Justice AR. Lakshmanan), writing the judgment for the Bench, Dr. Justice AR. Lakshmanan while considering the objects and the ingredients in Ss.138 and 139 of the Act, has observed as under:

 

“The object and the ingredients under the provisions, in particular, Ss.138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious set back. The Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee.

 

We, therefore, grant one month’s time from this date to the respondent herein to pay a sum of Rs.80,000/- (twice the amount of the cheque) by way of Demand Draft drawn in favour of the appellant and payable at Goa (in the address given in the paper book). In default thereof, the respondent shall suffer simple imprisonment for six months.”

 

41. Every one who is concerned with dispensation of Criminal justice is well aware of the oft-quoted phrase - “Justice delayed is justice denied”. The authorities who matter in this regard are very much concerned about this delay and are consistently trying to get rid our system of this menace. Almost all the Hon’ble Chief Justices of India have shown their concern towards delayed justice and had tried to find out the causes for the same and also suggested means and methods, in their own ways, to combat same was the concern shown by the Governments that be.

 

42. Legal experts are unanimous in their opinion that the present system of Criminal jurisprudence is destined to fail if the backlog of cases is not substantially reduced. The Law Commission of India has recommended a complete overhaul of the criminal justice system. They have exhorted for a radical change in the working of the law enforcement agencies, especially the police and the public prosecutors to contain such delays in the recent past. Recently, the Law Commission of India has mooted the concept of “plea-bargaining” - plea-trial negotiations between the accused and the prosecution in which if the accused agrees to plead guilty for the charges leveled against him he would get in exchange certain concessions as a quid pro quo, by taking a lenient view by the courts, particularly in cases of lesser gravity. Actually, the courts have been practically following such a practice, for several years, now.

 

43. A speedy trial is not only required to give quick justice but it is also an integral part of the Fundamental Right of life, liberty, as envisaged in Art.21 of the Constitution of India. Law Commission is putting forth few suggestions to identify and remedy the causes of such delays, in this report, of course, after identifying major hurdles and impediments which cause delay in the disposal of criminal cases.

 

44. Increase in the number of judicial officers will have to be accompanied by proportionate increase in the number of court rooms. The existing court buildings are grossly inadequate to meet even the existing requirements and their condition particularly in small towns and moffusils is pathetic. A visit to one of these courts would reveal the space constraints being faced by them, overcrowding of lawyers and litigants, lack of basic amenities such as regular water and electric supply and the most unhygienic and insanitary conditions prevailing therein. The National Commission to review the working of the Constitution noted that judicial administration in the country suffers from deficiencies due to lack of proper planned and adequate financial support for establishing more courts and providing them with adequate infrastructure. It is, therefore, necessary to phase out the old and outdated court buildings, replace them by standardized modern court buildings coupled with addition of more court rooms to the existing buildings and more court complexes.

 

45. On the recommendations of the 11th Finance Commission, Fast Track Courts of Sessions Judges were set up for disposal of long pending sessions and other cases. These courts have been quite successful in reducing the arrears. Most of the criminal cases in subordinate courts are pending at the level of Magistrates. Keeping in view the performance of Fast Track Courts of Session Judges, the Government of India should formulate a similar scheme for setting up Fast Track Courts of Magistrates in each State, as recommended by the previous Conference of Chief Ministers and Chief Justices held on 11.3.2006 for S.138 cases also.

 

46. In this era of globalization and rapid technological developments, which is affecting almost all economies and presenting the challenges and opportunities, judiciary cannot afford to lag behind and has to be fully prepared to meet the challenges of the age. It is heartening to note that use of information and communication technology in judicial is growing despite various constraints. Day-to-day management of courts at all levels can be simplified and improved through use of technology including availability of case-law and meeting administrative requirements. Congestion in court complex can also be substantially reduced through electronic dissemination of information. The objectives that can be achieved through use of technology include transparency of information, streamlining of judicial administration and reduction of cost. 

 

47. Litigation through the courts is just one way of resolving the disputes. Litigation as a method of dispute resolution leads to a win-lose situation leading to growth of animosity between the parties, which is not congenial for a peaceful society. We should, therefore, resort to alternative dispute resolution mechanisms such as negotiations, conciliation and mediation, in which nobody is a loser and all the parties feel satisfied at the end of the day. The main problem being faced in this regard is that there are not many trained mediators and conciliators. We need to impart training in mediation and conciliation not only to judicial officers but also to the lawyers. They will have to develop expertise to act as successful mediators and conciliators. We also need to provide adequate infrastructure for conciliation and mediation centres by giving them adequate space, manpower and other facilities. The Government being the biggest litigant needs to be fully involved in the process and its officers need to take lead in this cause.

 

Speech delivered by Hon’ble Mr. Justice K.G.Balakrishnan (C.J.I.) on 17th March 2007 at Vigyan Bhawan, New Delhi, on Administration of Criminal Justice System, reads thus; (paras 48-52)

 

48. The criminal justice system in the country is designed to protect the citizens of this country from the onslaught of criminal activities of a section of the community which indulges in such acts. The outcome of any criminal justice system must be to inspire confidence and create an attitude of respect for the rule of law. An efficient criminal justice system is one of the cornerstones of good governance. When we think of criminal justice system it consists of the police, prosecuting agency, various courts, the jail and the host of other institutions connected with the system. The State as a guardian of fundamental rights of its citizens is duty-bound to ensure speedy trial and avoid excessively long delays in trial of criminal cases that could result in grave miscarriage of justice. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. But, unfortunately, there are a large number of cases pending in various courts. There are a large number of under-trial prisoners in this country. Various factors contribute to large pendency of criminal cases in the subordinate courts. Speedy trial of criminal cases should be recognized as an urgent need of the present judicial system in order to decide the fate of lakh of litigants. It will help enhance the faith of general public in the present judicial system. In order to have a strong socio-economic system, it is important that each and every state of trial of an accused should move at reasonably fast pace.

 

49. The challenges before the criminal justice system are to balance the rights of the accused while dispensing speedy and effective justice. The criminal justice system machinery must also meet the challenge of effectively dealing with the emerging forms of crime and behaviour of the criminals.

 

50. In most of the cases, the blame for delay in administration of criminal justice system is put at the door of the courts. Courts are over congested with petty cases and many legislations are being enacted which result in filing of large number of cases before the courts. Inclusion of additional forms of crime, for example, S.138 cases under the Negotiable Instruments Act or S.498A in the Indian Penal Code, contributed a large number of cases in the criminal courts. Some of the new legislations like, Domestic Violence (Prevention) Act, have come up which contribute some more cases to the criminal courts. To deal with these types of cases we do not have additional number of courts, we do not have additional infrastructure. In many States sufficient budgetary provisions are not made for improving the infrastructure of the subordinate courts, including additional improvement of existing courts, court complexes.

 

51. The starting of Fast Track Courts have helped to a great extent in disposing of the pending Sessions cases and that, by itself, has proved that it is because of lack of large number of courts that the pendency of criminal cases is on the rise.

 

52. It is also important that we should give proper legal assistance to the poor and the needy. In most cases the accused in criminal cases are from the lower strata of society. Unless effective legal assistance is given to the accused there would always be a failure of justice. Now, the provisions of Criminal Procedure Code are used for providing legal assistance to the poor accused. On many occasions the service provided to them is not adequate. Unless adequate legal fees are provided the accused would not get the benefit of a better counsel. In spite of all the criticism directed against our criminal justice system, if we analyze the same it would be one of the best criminal justice delivery systems throughout the world. It is our duty to improve it to the best of our ability. 

 

Speech on Law Day by Justice R.C.Lahoti on 26.11.2004

 

53. Increasing institution of cases, mounting arrears, accumulating congestion in courts and inevitable law’s delays have given rise not to a body of scientific and rational blueprints in terms of institutional organization and procedural methods or in terms of assessments of judicial manpower requirements, but to a spate of alarm signals and dire shibboleths. If there are more and more cases in courts, that is because we have a population explosion, we have a more complex and friction-prone society, our dispute resolution and conciliation system are bereft of efficacy, we have increasingly greater awareness of rights, and perhaps because we have more injustice and more arbitrariness in our midst. The Governments are under an obligation to provide an adequate machinery for justice, to appoint more judges and to give them better emoluments and facilities, to build more courthouses, to enact better laws, to devise better dispute resolution procedures, and to administer more effectively and equitably, rather than to blame lawyers and judges for the increase and proliferation of litigation. Courts in India cannot apply a mechanical-statistical razor blade or wave a magic wand to wipe out the enormous pendency of arrears. Nor can the courts afford to turn a blind eye or a deaf ear to the rank injustices and incongruities of administration merely because they have already too much on their hands. If the courts begin to do that systematically, they might endanger the confidence and credibility they have come to enjoy. 

 

Right to a speedy trial

 

54. While the 6th Amendment to the US Constitution expressly states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”, our Constitution does not expressly declare this as a fundamental right. The right to a speedy trial was first recognized in the first Hussainara Khatoon case (AIR 1979 SC 1360 : (1980) 1 SCC 81); Surinder Singh v. State of Rajasthan, (2005) 7 SCC 387, wherein the court held that a speedy trial is implicit in the broad sweep and content of Art.21. In the second Hussainara Khatoon case (AIR 1979 SC 1360 : (1980) 1 SCC 81), the Supreme Court directed that all undertrial prisoners against whom charge sheets had not been filed within the limitation period should be released. In the third Hussainara Khatoon case (AIR 1979 SC 1369 : (1980) 1 SCC 98), the Supreme Court observed that the State could not avoid its constitutional obligation to provide for a speedy trial by pleading financial or administrative inability. Directions were issued for taking positive action like setting up new courts, providing more staff and equipment to courts, appointment of additional judges and other measures calculated to ensure speedy trial.

 

55. Subsequently, the importance of speedy trial has been repeatedly emphasized by the Supreme Court. State of Bihar v. Uma Shankar Kotriwal (AIR 1981 SC 641 = (1981) 1 SCC 75); Kadra Pahadiya v. State of Bihar (AIR 1982 SC 1167 : (1983) 2 SCC 104); State of Maharashtra v. Champalal Shah (AIR 1981 SC 1675 : (1981) 3 SCC 610); Guin S. v. Grindlays Bank (AIR 1986 SC 289 = (1986) 1 SCC 654); Sheela Barse v. Union of India (AIR 1986 SC 1773: (1986) 3 SCC 632); Raghubir Singh v. State of Bihar (AIR 1987 SC 149 : (1986) 4 SCC 481); Rakesh Saxena v. State (AIR 1987 SC 740 = 1986 Supp. SCC 505) (delay of six years); Srinivas Pal v. Union Territory of Arunachal Pradesh (AIR 1988 SC 1729 = (1988) 4 SCC 36); Surinder Singh v. State of Rajasthan ((2005) 7 SCC 387 : (2005) 8 JT 157); State of Andhra Pradesh v. P.V. Pavithran (AIR 1990 SC 1266 = (1990) 2 SCC 340). Most of the decisions until 1992 have been set out in the under-noted case which summarized 11 principles as guidelines applicable to a speedy trial. Abdul Rehman Antulay v. R.S. Nayak (AIR 1992 SC 1701, 1731: (1992) 1 SCC 225). This decision was held to be correct in Ramachandra Rao  P. v. State of Karnataka (2002 (2) KLT 189 (SC) = (2002) 4 SCC 578, 603 = AIR 2002 SC 1856). These guidelines are only illustrative and not exhaustive. They are not intended to operate as hard-and-fast rules or applied as a strait-jacket formula. Ramachandra Rao P. v. State of Karnataka (2002 (2) KLT 189 (SC) = (2002) 4 SCC 578, 603 : AIR 2002 SC 1956).

 

Right to a fair trial

 

56. A fair trial would obviously mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm (sic). Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses or the cause which is being tried is eliminated. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. Zahira Sheikh v. State of Gujarat (2004 (2) KLT SN 30 (C.No.36) SC = (2004) 4 SCC 158, 184, 187 = 2004 Supp (1) JT 94 (Best Bakery case).

 

57. Mr. Justice A.P. Shah, Chief Justice of Delhi High Court during the inaugural function of District Courts, in his address, has stated thus: “Citing “understaffed judiciary” as one of the main reasons, CJI said, “It is necessary to have qualified manpower for the system and the corresponding requirement would then be enough budgetary allocations for the set up.” Delhi High Court (H.C.) Chief Justice A.P. Shah talking about pending cases said, “Out of 7 lakh pending cases, more than 5 lakh cases relate to negotiable instruments (cheque bouncing). Each Metropolitan Magistrate (MM) is currently handling more than 3000 cases.”

 

58. Likewise, lakhs and lakhs of cases are pending in different courts throughout India. The litigant public are facing an alarming situation waiting for justice at the doorsteps of various Magistrate Courts. Every litigant in this country has a right to a speedy and fair trial. Hon’ble Chief Justice of India has in his speech stressed the need of creating more Courts to deal with S.138 cases under the Negotiable Instruments Act or S.498A in the Indian Penal Code.

 

59. The Supreme Court of India in its judgment reported in JT 2003 Vol.9 SC 451, Goa Plast Private Limited (Justice B.P. Singh and Dr. Justice AR. Lakshmanan) have stressed the object and the ingredients under the provisions in Ss.138 and 139 of the Act and the proper smooth functioning of all business transactions particularly of cheques as instruments. The Bench has also observed that the dishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within the outside the country suffers a serious setback for foregoing reasons. The Law Commission of India has also recommended a complete overhaul of the criminal justice system and have exhorted for radical change in the working of the law enforcement agencies specially the Police and the Public Prosecutors to contain such delays in the recent past. A speedy trial is not only required to give equal justice within a specified period, it is also an integral part of the fundamental rights of life, liberty as envisaged in Art.21 of the Constitution of India. The 11th Finance Commission have recommended Fast Track Courts of Sessions Judge for disposal of long pending Sessions and other cases. These Courts have been quite successful in reducing the arrears. Keeping in view the alarming situation and the pendency of lakhs of cases in various Magistrate Courts throughout the length and breath of this country, Fast Track Courts should be set up as recommended by the previous Conference of the Chief Ministers and Chief Justices held on 11th March, 2006, for S.138 cases also.

 

60. The Law Commission of India is of the firm opinion that considering the alarming situation and the pendency of cases and the constitutional rights of a litigant for a speedy and fair trial, the Government of India should direct the State authorities for setting up of Fast Track Courts in the country, which alone in the opinion of the Law Commission, will solve the perennial problem of pendency of cases which are even in summary in nature.