Conflicting Rulings Under S.13(3) of P.F.A. Act

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

 

The decision of the Kerala High Court in Vairamudigouda v. Food Inspector (2008 (1) KLT 762) leaves certain vital aspects of law untouched. It is difficult to support this ruling if one looks into various schemes under S.13 of the P.F.A. Act.

 

Citing the rulings of the Apex Court in Municipal Corporation of Delhi v. Ghisa Ram (AIR 1967 SC 970), the learned Judge held that a report of the Director Central Food Laboratory to the affect that the sample received by him is unfit for analysis should be treated in par with a report that the sample is lost or damaged. In such case, the High Court went on to say the third part of the sample should be sent for analysis. Further the High Court’s decision, as a whole, gives an impression that in the absence of an analysis by Central Food Laboratory for reasons that the sample is “unfit for analysis”, lost or damaged, the report of the public analyst must prevail.

 

This proposition puts a knife on the neck of the statutory rights given to an accused person under S.13(2) of the P.F.A. Act. Had the High Court looked the matter from a different (and correct) angle, the decision would otherwise have been other way round.

 

A sample of article of food purchased by the Food Inspector for analysis under Ss.10(2) and 11(1)(a) of the P.F.A. Act is to be divided into three parts as provided for in S.11(1)(b) of the Act. R.14 of the Rules then comes into operation. This rule says: “Manner of Sending sample for analysis. Samples of food for the purpose of analysis shall be taken in clear dry bottles or jars or any other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed”. This rule is held to be mandatory by various decisions of Supreme Court and High Courts including that of Kerala. Further, R.19 of the Rules prescribes that preservatives shall be added to the sample to maintain it in condition suitable for analysis. R.19 is also held to be mandatory. It is a well settled proposition of law that non-observance of mandatory provisions of the act and rules results in acquittal of the accused regardless to any prejudice caused to him.

 

A sample of article of food may become unfit for analysis due to many reasons and in most cases when Rr.14 and 19 are not complied with by the Food Inspector. The article of food may loose its character, it may become obnoxious, and it may be completely spoiled by insect infestation or due to many other reasons too elaborate to pen down. But all these can only be owing to the violation of Rr.14 and 19 of the Rules. Under no circumstances can the vendor be held responsible for the consequences of such defective sampling process.

 

The law provides a valuable and statutory right to the accused to get the sample analyzed by the Central Food Laboratory. If this right is denied due to reasons attributable to the non-observance of mandatory provisions by the authorities concerned, the accused is entitled to acquittal. The report of the Public Analyst gets superceded by the report of the Central Food Laboratory. In this there can be different situations such as:-

 

(i) The accused may not exercise his right to get the sample analyzed by the Central Food Laboratory without any reason,

 

(ii) The accused may refrain himself from moving the Central Food Laboratory due to delay in prosecution and/or delay in receipt of notice under S.13(2) for fear the sample becoming injurious to health due to loss of shelf life and he in such case might be booked for more serious offences under the Act,

 

(iii) The Central Food Laboratory might find it impossible to analyze the sample of food owing to leakage, decomposition and other facts rendering the sample unfit for analysis, and

 

(iv) The sample may be lost or damaged in transit.

 

In the last named case the law provides that the 3rd part of the sample be sent to the Central Food Laboratory. But to hold that the term “unfit for analysis” is synonymous with “lost or damaged” would amount to total disregard to Rr.14 and 19. 

 

The High Court relied upon the decision reported in AIR 1967 SC 970. But the learned Judge appears to have overlooked the part of para. 7 of the said judgment which reads “.... In a case where there is denial of his right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the public analyst, even though that report continues to be evidence in the case of the facts contained therein.”

 

Hence it is logical and clear that if the part of the sample sent to the Central Food Laboratory is unfit for analysis, the blame should squarely be on the prosecution. If one part of the sample is unfit for analysis how could it be held that the sampling process is correct or proper and that all the parts of the sample are homogenous? The inevitable conclusion in such cases would be that the authorities failed to divide and pack the sample as required by law. Nothing can be left for chance in such situation. 

 

Once the sample of food article leaves the hands of vendor, it is the duty of the authorities to divide and pack the sample properly without giving room for leakage, deterioration etc. and make all the parts of the sample homogenous and fit for analysis. The vendor has no role in those matters. Hence the notion that an accused can be convicted on the basis of the report of the public analyst, because the Central Food Laboratory could not analyze the sample for the reasons solely attributable to the authorities concerned, appears to be very dangerous and opposed the accepted principles of criminal jurisprudence. Failure of the food department to produce the parts of sample in a condition fit for analysis for the Central Food Laboratory can not automatically lead to the conclusion that the public analyst’s report is to be relied upon.

 

Yet one other aspect missed for consideration by the High court is also very interesting. Suppose in a given case the Public analyst finds the sample to be unfit for analysis. Should it then mean that the second and third parts of the same sample can be sent to the public analyst for analysis without any express provision in that regard? In such a case the accused is deprived of his right to get a part of the sample to be analyzed by the Central Food Laboratory as there would be no further part of the sample left for C.F.L. at all.

 

Viewed from any practical angles, the earlier decision of the High Court in Coromandal Distribtors v. Food Inspector (1998 (2) KLT 657) appears to be proper and sound though for the reasons not stated therein. It may be pointed out that the decision of the Supreme Court of India in Charanj Lai v. State of Punjab (AIR 1980 SC 80) to which reference is made by the learned Judge, stands on a different footing. In that case the Central Food Laboratory, Calcutta found the sample to be unfit for analysis due to decomposition and “requested the Magistrate to send the next part immediately”. The Magistrate after sleeping for six months over that request sent the third part to Central Food Laboratory at Ghaziabad (for, the C.F.L. changes on rotation every five years). Probably the C.F.L. Calcutta wanted to check the third part also to find out reason for decomposition. This case should be understood in its peculiar contest only and no universal law could have been propounded based on those facts.

 

In fact the law is well settled by the Supreme Court of India in Chetumal v. State of M.P. (AIR 1981 SC 1367). The three Judges’ bench of the Apex Court clearly held that if the sample of food article could not be analyzed by the Central Food Laboratory for no fault of the accused, the court cannot go back to the report of the public analyst and convict him. It is unfortunate that the learned single Judge has not had the occasion to refer to this decision. All the painful exercise could then have been avoided.

 

Innocent vendors whose rights to get the samples analyzed by the Central Food Laboratory in a fit condition would be very much prejudiced by the law propounded by the Kerala High Court in Vairamudigounda’s case which goes against the ruling of the Apex Court in Chetumal’s case.

Dowry Death in India -- A Menace to a Civilized Society

(By Laxmy R. Nambiar, 4th year student, NUALS, Kochi)

 

Origin and Prohibition

 

The concept of sthreedhan can be traced back centuries to where women were given their share of family property on marriage. Sthreedhan was exclusive property over which a woman retained sole ownership. The concept of Dowry, as it exists today, is one of the most degraded versions of this ancient tradition. Traditionally, in India, it is the duty of the parents to give their children’s hand in marriage. Dowry is that money that is extorted by the groom or his relatives from the bride or her relatives upon the threat that they will otherwise not accept the girls hand in marriage.

 

The menace of dowry eventually escalated to the extend where young girls were often harassed, tortured, driven to commit suicide and even brutally killed by grooms and their families over unsatisfied demands for dowry. It was taking these depraved conditions into account that the Government enacted the Dowry Prohibition Act of 1961. The salient features of this Act among others were that:

 

1. It made all agreements to give or receive dowry void(S.6; Dowry to be for the benefit of the wife or her heirs; Dowry Prohibition Act.).

 

2. It imposed penalties for giving, taking (S.3; Penalty for giving or Taking Dowry, Dowry Prohibition Act.) and demanding dowry(S.4. Penalty for demanding dowry, Dowry Prohibition Act.).

 

3. It made provisions for any dowry given to be transferred to the bride within a prescribed period as sthreedhan(S.6. Dowry to be for the benefit of the wife or her heirs, Dowry Prohibition Act.).

 

Under S.2 of the Dowry Prohibition Act, ‘dowry’ is:

Any property or valuable security given or agreed to be given either directly or indirectly;

       (a)   by one party to a marriage to the other party to the marriage; or

       (b)   by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person;

 

at or before or any time after the marriage in connection with the marriage (The original words ‘as consideration of marriage’ was replaced with ‘ in connection with marriage’ by the Dowry Prohibition (Amendment) act 1984.) of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies,

Unfortunately in spite of the best interests of the framers of the Act, the menace of dowry persisted and continued to exist after the enactment of the Dowry Prohibition Act. Despite the safeguards of the Act, young brides continued to face torment, cruelty and harassment in their marital home and the death toll continued to escalate.

 

Amendments to the Act

The Dowry Prohibition (Amendment) Act was passed in 1983. It inserted S.113-A into the Indian Evidence Act. S113-A introduced a new offence and a presumption regarding the abetment of death of a married woman.

 

Following this, another amendment to the Dowry Prohibition Act introduced two separate sections and offences against married women. S.304-B and S.113-A introduced by the Dowry Prohibition (Amendment) Act into the Indian Penal Code and the Indian Evidence Act introduced the offence of dowry death and the presumption regarding dowry death.

 

(2)   Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

 

The  Burden  of  Proof

 

One of most important features of dowry related offences is the acute lack of evidence to prove actual abetment of suicide or homicide of the young bride. Apart from that evidence like cruelty and harassment meted out to the victim by the accused cannot be proved beyond reasonable doubt (as is required under normal circumstances) due to the fact that most dowry related offences occur within the marital home. Therefore, the most important feature of Ss.304-B of the Indian Penal Code is that once the essentials facts are proved by the prosecution, the burden of proof is shifted from the prosecution to the defence. After the burden shifts, the onus is on the defence to prove that he or they did not commit the offence they are accused of. This onus is however a balance of probabilities and not one over all reasonable doubt.

 

S.304-B

 

In the case of Arun Garg v. State of Punjab (2004 (3) KLT 435 (SC) = (2004) 8 SCC 251.) a Coram of 2 Judges of the Supreme Court laid down the essentials of S.304-B, which when established will shift the burden from the prosecution to the defence.

 

The facts of the case showed that a dispute arose over the demand for dowry was settled within three months into the marriage. Two years later the husband brought up another demand for dowry. This however could not be met by her parents and eight months later, the deceased made a single telephone call to her father stating that her husband her in laws were conspiring to kill her. Two days later, the deceased was admitted to the hospital for ingestion of poison of which she later died of.

 

In para.17 of the judgment, the Court went on to state that S.304-B required 3 ingredients for the prosecution to prove prima facie. They are that:

 

1. The death is caused by burns, bodily injury or by means other than by ordinary means.

2. Such death occurs within 7 years of marriage.

3. It is shown that soon before her death she was subjected to cruelty or harassment in connection with dowry by her husband or his relatives.

 

The Court stated that the evidence of the prosecution is to be considered in the light of these ingredients and went on to say that in this case they found the accused guilty under S.304-B of the Indian Penal Code without the aid of the presumptions under S.113-A or S.113-B of the Indian Evidence Act..

 

The  Essentials  of  S.304-B

 

As held in the previously mentioned case, the essential ingredients of S.304-B are the following:

1.   The demand for dowry.

2.   The victims’ subjection to cruelty and harassment.

3.   That such cruelty and harassment have happened “soon before her death”.

4.   That she have died an unnatural death.

5.   That the death has occurred within 7 years of the marriage.

 

1.   The  Demand  for  Dowry

 

The case of Pawan Kumar v. State of Haryana(1997 (1) KLT SN 6 (C.No.7) SC = (1998) SCC 309 = AIR 1998 SC 958; Pawan Kumar v. State of Haryana.) held that no direct demand for dowry is necessary and that the groom’s persistent demands for T.V., scooter etc (pertaining to the facts of the case) from the bride or her parents fell within the scope of ‘dowry’ under S.304-B of the Indian Penal Code. This section will not apply where there is noprima facie demand for dowry.(State of U.P v. Mahesh Chandra Pandey, AIR 2000 SC 3631 (2).)

 

Cases  not  Falling  under  Demand  for  Dowry

 

The Court in many instances has tried to detail those situations where payment of money or valuable security by one party in a marriage to another or by the relative of one party in a marriage to another would not amount to demand for dowry. Some of these instances are:

1.Customary payment of money by the parent of the wife to the husband on birth of a child cannot be said to be in connection with marriage and is therefore not dowry (Satvir Singh v. State of Punjab(2001 (3) KLT SN 74 (C.No.97) SC).).

 

2..Where a husband harassed his wife to transfer the property given by her father to her (as part of a customary practice) after the marriage and where such harassment led her to commit suicide, the Court held that the demand for such transfer cannot be equated with demand for dowry unless there is proof to show that such land was demanded as dowry in the first place(K. Prema S. Rao v.Yadala Srinivasa Rao (2003) 1 SCC 217).).

 

3.  When a sum of Rs. 50,000 was demanded by the husbands’ family from the wife to send her brother in law abroad, the Court held that it was not a demand for dowry as it was not asked for in connection of marriage(1999, State of Punjab v. Daljit Singh.).

 

2.   Cruely  and  Harassment

 

“A young bride enters into a marriage with great hopes and aspirations for her marriage life. There can be no greater mental torture for any bride than accusing her of bringing insufficient dowry and calling her ugly(Pawan Kumar v. State of Haryana(1997 (1) KLT SN 6 (C.No.7) SC = 1998 SCC 309).) “

 

S.304-B of the Indian Penal Code, S.113-A and S.113-B of the Indian Evidence Act refer to cruelty an harassment that is meted out to the bride as an indispensable requirement for a death to fit into the spectrum of cases falling within the wide ambit of the definition of “dowry death.” The Explanation to S.113- A states that ‘cruelty’ will take the same meaning as in S.498 A of the Indian Panel Code.

 

S.498-A

 

S.498-A of Indian Penal Code falls under Chapter XX-A of the Indian Penal Code. This Chapter was introduced by Criminal Law (Second Amendment) Act of 1983, which came into force with effect from 25th December 1983. The introduction of this section under an altogether new chapter to the Penal Code reflects the anxiety of the legislators to extend protection to the weaker spouse and to deal adequately with any form of domestic violence that occurs within the confines of ‘holy matrimony.’

 

Chapter XX-A was enacted for these 3 primary reasons:

       1.    To define the substantive offence of cruelty to a woman by husbands.

       2..   To introduce procedure that would make investigation in certain cases of death or violence against women mandatory.

       3.    To make relevant changes under the Evidence Act, so as to make conviction for certain crimes of violence against women easier.

 

This section pins greater responsibility and criminal liability that that under S.306B where an intended suicide is merely abetted. This is not a retrospective section. This section assumes a greater significance because in order to invoke the presumption under S.113A of the Indian Evidence Act, an offence under this section needs to be registered.

 

S.498-A of the Indian Penal Code states:

“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also is liable to fine”.

 

Explanation

For the purpose of this section, “Cruelty” means:

 

(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether physical or mental) of the woman; or

 

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

 

The perusal of clause (a) would show that the prosecution has to establish the following:

1.   the willful conduct of the offender,

2.   that the nature of such conduct was likely to:

   •  drive a woman to commit suicide

   •  Or to cause grave injury or danger to life, limb or health.

 

On proof of these facts, to the satisfaction of the Court under the circumstances of a particular case, it may be held that the husband or the relatives of the husband have treated the woman with cruelty.

 

Clause (b) of the above mentioned explanation shows that the harassment:

1.    to coerce her or any person related to her to meet any unlawful demand for property or valuable security

2.    on account of the failure by her or any person related to her to meet such demand; would amount to cruelty for the purpose of S.498 A of IPC.

 

What  Amounts  to  Cruelty  and  Harassment

 

The expression “cruelty” takes within its sweep both mental and physical agony and torture. The concept of “cruelty” varies from place to place and individual and according to the social and economic status of the person involved. To decide the question of cruelty the relevant factors are the matrimonial relationship between the husband and wife, their cultural background and temperament, status in life, status of health, their interaction in their daily life, which dominate the aspect of cruelty. The word harassment has not been defined in S.498-A of IPC. The meaning of the word “harass” in the Webster’s Dictionary reads thus: “to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness. Thus, to subject a woman to constant torment with a view to coerce her or any person related to her to meet any unlawful demand for property or valuable security would amount to cruelty. The cruelty envisaged under this section is of such nature so as to force a woman to cause grave bodily injury to herself or to compel her to commit suicide or to fulfill illegal demands for dowry.

 

Though the provision covers both physical as well as mental cruelty, each and every instance of harassment is not cruelty. The harassment has to be with the object to coerce the woman or any person related to her to meet any unlawful demand. In order to come into the ambit of cruelty under clause (b) by husband, the harassment must be to extract money unlawfully from the woman by the man. Unless this is proved, no offence under S.498 A can be alleged to have been committed.

 

Where the accused created a fight in the deceased’s sisters house over dowry demands and the deceased stated to her sister that she would find it hard to ever face her family again, the Supreme Court held that cruelty needn’t be physical and that mental cruelty and harassment constitutes cruelty within S.304-B((1991) 1 Crimes 268.). In Kishore Kumar v. State where a woman died within 2 years of marriage and it was shown that her husband had constantly taunted her about the financial status of her family, the court held that his actions amounted to cruelty and attracted action under this section.

 

Where the defendant had leveled false accusations of his wife’s ability to conceive, taunted her on the birth of a girl child, accused her of adultery and took the infant away from its mother and denied her the permission to see her child amounted cruelty, the court attracted this section (Vijay Kumar Sharma v. State of U.P. (1991) 1 Crimes 268.). Where the husband demanded his wife to bring money from her family after 4 years of marriage; though the money demanded was not related to dowry, the court held that this section would apply as he caused her enough torment for her to end her life (State of Punjab v. Daljit Singh, 1999.).Shoba Rao v. Madhukar(AIR 1988 SC 121.) held that extorting money from the wife’s family for his personal use does not make it any less of a charge of cruelty for dowry.

 

However, this section will not apply if the wife commits suicide after 7 years after marriage(Himachal Pradesh v.Jagroop Singh.).

 

“Husband”  and  “Relative”

 

Anil Kumar v. State of Punjab(1997(2) All. Cri L.J. 638.) construes all blood relatives of the husband - mother, father, siblings etc as relatives; the definition may also extend to brother-in-laws, sister-in-laws and the like under the necessary circumstances. However, a family friend, no matter how close, cannot be considered to come within this definition.

 

A decision of the Andhra Pradesh High Court held that if a couple were living together as husband and wife, S.498-A would apply.

 

Willful  Conduct

 

Another very important element to this section is ‘willful conduct’. This word contemplates obstinate and deliberate behaviour on the part of the offender for it to amount to cruelty. Thus, mens rea is an essential ingredient(Madhuri Mukund Chitnis v. Mukund Mart and Chitnis (1992) Crl. L.J 111 (Bom).). It also contemplates that inter alia, such a conduct besides being willful must also be the primary motive that drives or pushes the married woman into suicide or into inflicting substantial injury to self.

 

•  Cases  not  Falling  under  Cruelty  and  Harassment

 

CASE: S. Abboy Naidu v. R. Sundarrajan (1994 Crl. L.J. 641.)

The facts of the case are such. The bride’s parents voluntarily gifted the newly married couple with a dining table upon which the groom stated that he would have preferred cash instead. The Court held that such a statement would not amount to cruelty.

 

That  which  does  not  amount  to  Cruelty

 

Any demand that is lawful or well within another’s right to make does not amount to cruelty. Thus, the illegality of a demand is to be proven. The following does not amount to cruelty (Delhi High Court)

       1.    Asking back of money loaned by husband’s family even in times where the wife’s family suffers a financial problem.

       2.    One or 2 instances of anger.

       3.    A gift by the bride’s side, without any corresponding demand from the groom’s side.

       4.    Casual conversations regarding retrieval of the bridal jewellery from the brides house to the matrimonial home.

       5.   Any small comment that might drive a person of very sensitive disposition   to   commit grave and self-endangering acts. Thus, everything is to be understood from the point of view of a reasonable man.

 

CASE: Sarla Prabhakar v. State of Maharashtra ((1990) Crl. L.J 407, Sarla Prabhakar v. State of Maharashtra.)

 

Where the mother-in-law asked the new daughter-in-law whether she would part with a few of her jewellery pieces for her sister-in-laws marriage and the request being turned down, never ventured to pressed again, does not amount to cruelty.

 

3.Soon  before  her  Death:

 

Kans Raj v. State of Punjab(AIR 2000 SC 2324.) brought about the idea of the proximity test, holding that circumstances showing cruelty and harassment to the deceased are not restricted to a particular instance but normally refer to a code of conduct. The Court stated if cruelty or harassment is proved to have persisted, it shall be deemed to have been soon before her death. However, no presumption under S.113-B of the Indian Evidence Act will be drawn against the accused if it is shown that the alleged demand, cruelty or harassment or dispute stood resolved and that there was no evidence of cruelty or harassment thereafter (1991 Crl.LJ 263.).

 

4.  Unnatural  Death

 

In the case of Nem Chand v. State of Haryana(1995.) where the wife died due to strangulation in the husband's house, and it was shown that she had been treated with cruelty over demands for dowry, the presumption under S.113-A of the Indian Evidence Act was applied and in Kans Raj v State of Punjab (1995.) it was held that the suicide of wife within 7 years of marriage does not constitute ‘normal circumstance’.

 

5. Seven  years  of  Marriage

 

The case of Vadde Rama Rao v. State of Andhra Pradesh(1990.) held that a husband or any of his relatives can be prosecuted for the offence of dowry death if a woman dies within seven years of marriage if harassment is proved to have been inflicted on her by the husband or any of his relatives.

 

This rule was used to great effect in the landmark judgement of Shanthi v. State of Haryana(1991 (1) KLT SN 22 (C.No.28) SC = AIR 1991 SC 1226.) where a woman was continuously harassed over dowry demands died under mysterious circumstances and her husband and in laws hastily cremated her body without informing her parents. The court held that since she had died within 7 years of marriage and that she had complained of cruelty in connection with demand for dowry, the presumption under S.113-B could be invoked with no further procedure.

 

Appreciation  of  Evidence

 

Appreciation of evidence is one of the most crucial aspects of deciding whether a case falls within the ambit of dowry death. Since dowry related issues arise within the matrimonial home, the collection of evidence regarding aspects of cruelty, harassment and to prove that such treatment was in regard to demands for dowry is normally hard to prove. In most cases the victims themselves shield their tormentors due to the fear of wrecking their marriage and with hopes for a better future. Therefore, in the case of a  suspicious death of a young bride the proper appreciation of the evidence is of utmost importance in ascertaining the facts of the case.

 

CASE: Sant Raj v. State of Haryana (1998 SCC (Cri) 1600.)

 

The deceased was continuously mistreated by her husband and harassed for bringing insufficient dowry soon before her death. She died under mysterious circumstances and the accused and his family did not make any effort to inform her family on the death. The Court set aside the defences argument that she died a natural death by an unexpected stomach ache taking into consideration all the relevant facts of the case including the fact that she was in excellent health before her death. The presumption under S.113-B was introduced to convict the accused.

 

CASE: Shanthi v. State of Haryana

 

The facts of this previously mentioned case showed that the deceased died under very mysterious circumstances and that no efforts were made on the part of the accused to contact her family on her death. It was held that the evidence pointed to foul play and that S.113-B could be invoked under the given circumstances.

 

Second Wife; Whether A Wife for Application of S.304-B and 113-A and 113-B

 

There exist two conflicting decisions by two High Courts in this regard, in the case of Ram Narain v. State of Madhya Pradesh(1998.), the High Court of Madhya Pradesh held that a  second marriage is void under Ss.5 and 11 of the Hindu Marriage Act and that such bigamous marriage is not a marriage in the eyes of law. It was hence held that a second wife is not a wife in the eyes of law and therefore not a wife for the purposes of S.304-B of the Indian Penal Code and S.113-A of the Indian Evidence Act.

 

In a more recent decision of the Karnataka High Court, in the case of State of Karnataka v. Shivaraj  (2002.) the Hon'ble Karnataka High Court held that it would perhaps be in the interest of justice to construe that even in a case where a marriage is declared void, at the point of time of commission of the offence the Court would still treat the parties as having deemed to be husband and wife in the larger interest of justice.

 

Penal  Provisions

 

S.304-B is of relevance in the case of homicides camouflaged as accidents where there just enough evidence to make out a case under either S.299 or 300. Here, once the prosecution makes out their case prima facie, the burden shifts to the accused making it harder for wife-murderers to exploit the loop holes in the system. The penal provision dealing with dowry death is S.304-B (2) that mandates imprisonment which is to not be less than a period of 7 years.

 

Since the burden of the prosecution is much lesser than that in a normal criminal case and since the onus is on the accused to prove that he isn’t guilty, the law gives a concession in the sentence that is imposed as compared to that seen under S.299 and 300. Under S.304-B(2), the maximum penalty for dowry death is life imprisonment and not death itself.

                     

The Arbitration and Conciliation Act, 1996 -- The Need for a Change

(By S. Nikhil Sankar, 4th year Student, (NUALS), Kochi)

 

ABSTRACT

 

Through this article the author tries to point out the shortcomings that have crept into the Arbitration and Conciliation Act, 1996. The article also throws light on the failure of the erstwhile Act i.e. Arbitration Act, 1940. The author suggests the necessary amendments to be incorporated to the current Act to correct the inadequacies pointed out here.

 

I. Introduction

 

“Justice delayed is Justice denied”^_1.The most popular criticism levelled against the Justice delivery mechanism. Inordinate delay in dispensation of Justice is construed as synonymous to its denial. As the process of Justice delivery mechanism and interpretation of statutory provisions are not easy tasks delay in delivery of justice is inevitable, but can the delay be colossal resulting denial of justice to its seekers?

 

As court room procedures involved a lot of formalities, it was thought of a new mechanism which would result in the speedy dispensation of justice. That paved the way to evolve several alternative methods and one of such resolutions was the Arbitration Act, 1940.

 

II. The Arbitration Act, 1940: Its Prospects and Failures

 

The Arbitration Act, 1940 was enacted with the objective of providing ‘Speedy Justice’. The Act stipulated for the amicable settlement of disputes between the parties outside the court room. This process of out of court settlement mechanism helped to a great extent in surpassing the normal lengthy court room procedures. Only matters of civil nature, mostly disputes arising out of commercial transactions, were subjected to the process of Arbitration.

 

The Arbitration Act, 1940, brought about a seachange in the justice delivery mechanism by reducing the expenditure and saving a lot of time and labour of the litigating parties. But as time progressed the Act was considered to be inadequate. Major set backs of the Act may be summarized as follows:

 

- The Act was silent about the inherent shortcomings in private contracts.

 

- Rules regarding filing of awards are different from one High Court to another.

 

- There is no provision for avoiding an arbitrator or resignation of an umpire in cases where mala fides are alleged/involved.

 

- There is distinction in the Act between the agreement made in advance to submit future differences and a submission after a dispute had arisen (V/0 Tractor Export, Moscow v. Tarapore and Co. AIR 1971 SC 1.).

 

- There is no provision requiring the arbitrator to specify reasons for sustaining the award (See O.P Malhotra and Indu Malhotra. The Law and Practise of Arbitration and Conciliation, Lexis Nexis Butterworths, New Delhi (2"d edn..(2006) p 13.).

 

The Law Commission of India under the Chairmanship of Mr.Justice H.R.Khanna in its 76th report (See Universal’s Compendium, (70th to 78th report), Reports of the Law Commission of India. Universal Law Publishing Co. (Vol.9,2007 edn.) p 76.5 to 76.100.) dated 9th November, 1978 recommended drastic changes to the Arbitration Act, 1940.

 

The inadequacies of the Act was further exposed when the Apex Court itself speaking through his Lordship Mr.Justice Desai in M/s.Guru Nanak Foundation v. M/s. Rattan Singh & Sons(AIR 1981 SC 2075 (para. 1).) observed:

 

“The way in which the proceedings under the Act are conducted and without an exception challenged in courts, has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Informal Forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the courts been clothed with ‘legalise’ of unforeseeable complexity.”

 

A Constitution Bench of the Supreme Court in Raipur Development Authority v. Chokhamal Contractors(AIR 1990 SC 1426 (para. 37).) observed:

 

“Indeed, this branch of the system of dispute resolution has of late acquired a certain degree of notoriety by the manner, in which many cases, the financial interests of Government have come to suffer by awards which have raised eyebrows by doubts as to their rectitude and propriety.”

 

These further developments, accentuated the need for a modern law to deal with the field of ‘Arbitration’ based on updated modern principles and thus the current Act i.e. the Arbitration and Conciliation Act, 1996 was enacted.

 

III. The Arbitration and Conciliation Act, 1996

 

Arbitration and Conciliation Act, 1996 was enacted based on the United Nations Commission on International Trade Law (UNCITRAL) Guidelines: It repealed three Acts simultaneously(S.85 reads as Repeal and Saving (I) The Arbitration (Protocol and Convention) Act, 1937) (VI of 1937) the Arbitration Act, 1940 (X of 19, 1Q) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (XLV of 1961) are hereby repealed.). (The Arbitration (Protocol and Convention) Act, 1937, the Arbitration Act 1940, and the Foreign Awards (Recognition and Enforcement) Act, 1961). The new ‘Act’ tried to remove all the inadequacies of the repealed Acts. A consolidated system of administration in the realm of ‘arbitration’ is envisaged providing for a novel concept of ‘Conciliation’ also which has been incorporated in Part III of the Act. Part II of the Act provides for the enforcement of Foreign Awards based on the guidelines framed under the New York and Geneva Conventions.

 

Though this Act is being described as a ‘sacro sanctum’ piece of legislation but, over the past 12 years certain defects have been noticed in the Act which may lead to defeat the objectives of the legislation in its true sense.

 

IV. Shortcomings found in the Act and their remedies

(A) Sole Arbitrator Clause

 

The Act provides^₂ that parties are free to choose and determine the number of Arbitrators, provided that it should not be even in number. If the parties want more than one Arbitrator, they will have to expressly mention it in the agreement. The sole arbitrator is appointed jointly and with the consent of the parties (S.11(2).). If the opposite party declined to give his consent even after second notice, the power would vest in Court to appoint arbitrator based on the request of the first party.(B.S. Jaireth v. S.P.Sinha, AIR 1994 Cal.68.).

 

The danger of sole arbitrator clause is very much prominent in the case of Government contracts i.e, standard form contracts, where both the parties are not in equal footing to decide the arbitrator. The party who applies to appoint arbitrator, is likely to get appointed a person of his choice. That will lead to a situation where the delivery of justice would be in peril.

 

Remedy

 

In the cases of appointment of sole arbitrator especially in cases of standard form of contracts, the procedure should be circumscribed by stringent conditions. Guidelines have to be formulated to ensure appointment of independent arbitrator. The Arbitration and Conciliation Act should be amended accordingly for incorporating adequate remedial measures in the matter of appointment of sole arbitrator.

 

(B)  POSSIBILITY  OF  PARALLEL  PROCEEDINGS

 

S.8(3) of the Act reads thus:

“Notwithstanding that an application has been made under sub-s.(1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

 

Sub s.(1) of S.8  of the Act enables the judicial authority to refer the parties to arbitration when a party applies for the same.

While proceeding before such Arbitral Tribunal is going on, the judicial authority before which an action is brought in regard to the same matter can as well proceed with the action. Again, if the application for reference to arbitration is not filed before submission of the first statement, the action before the judicial authority has to be proceeded with. So the possibility for there having parallel proceedings is very much.

 

The decree or order that may be passed by the judicial authority and the award by the Arbitral Tribunal may be conflicting. That is a situation which cannot be allowed in the interest of not only the parties, but public policy also.

 

Remedy

 

It is suggested that S.8(3) of the Act may be suitably amended to avoid plurality of proceedings for the same matter.

 

(C) No Fixed Time Schedule

 

S.23^₃ of the Act provides for laying down the claim and defence of the parties. The statute does not provide for a fixed time limit within which the parties have to submit the aforementioned statements. It just provides a vague time limit stating that it shall be fixed on the basis of the agreement between the parties. This provision appears to be absurd and erroneous as it would defeat the founding principle i.e. ‘speedy dispensation of justice’ which is enshrined as the hallmark of the Act.
 

Remedy

 

The Act should be amended to include a provision mandating the maximum time limit for filing the statements. The parties should never be allowed, to fix the time limit according to their whims and fancies. The proposal in the Arbitration and Conciliation Bill 2003 for insertion of S.29A is aimed at fixing the maximum time limit for passing the award, but this provision has not so far been incorporated.

 

(D) Reference to arbitration in criminal proceedings

 

Literal interpretation of S.8(1) of the Act may support the theory that reference to arbitration is possible in a proceeding before a Criminal Court. In a proceeding before a Magistrate, for example, a complaint under S.138 of the Negotiable Instruments Act, one of the parties may file application for reference to arbitration, if the agreement evidencing transaction in which the impugned cheque was issued, contains an arbitration agreement. There is no specific prohibition in invoking S. 8(1) of the Act in a proceeding before a Magistrate.

 

The possible counter argument is that the matter relating to which action is brought before a Magistrate should be subject of an arbitration agreement, for referring the parties to arbitration. The matter before the Magistrate is whether the accused has committed the offence and that matter cannot be a subject of an arbitration agreement. Therefore, it may be said, S.8(1) of the Act cannot be invoked in a proceeding before a Magistrate.

 

Both the arguments may appear reasonable.

 

Remedy

 

S.8(1) of the Act be amended to take out all proceedings before criminal courts from the purview of the provisions of the Act.

 

E). Appellate Provision

 

The present provision for preferring appeals under S.37(2) (a) of the Act only enables to challenge order issued by virtue of S.16 of the Act holding that the Tribunal has usurped its authority or on the plea of lack of jurisdiction. No appeal lies against orders holding that Tribunal has exceeded jurisdiction or arbitrator is biased. Eventually if the Appellate authority were to hold that Tribunal had exceeded its jurisdiction, or that the arbitrator was biased, the whole process of litigation has to start again causing undue loss of time and money to the parties (See Avatar Singh, Law of Arbitration and Conciliation, Eastern Book Company. Lucknow (8th edn.2007), p.3.). The argument raised against this is that it would delay the arbitral proceedings. The Apex Court too has ruled it as a shortcoming of the Act (Centro Trade Minerals & Metal Inc v. Hindustan Copper Ltd. (2006) 11 SCC 245).

 

Remedy

 

One possible way of avoiding aforementioned dilemma is by incorporating a provision enabling a party to go in appeal against an order holding that Tribunal has usurped its jurisdiction or is biased while allowing the normal arbitral proceedings to go on. Both the proceedings should proceed simultaneously without any stay of the proceedings. This would very much help to ease the undue burden and avoid confusion of the parties. The Arbitration Bill of 2003 proposed the insertion of S.37 A to provide for an Arbitral Division in the High Court for expediting the appeals, but so far it has not been brought into the statute book.

 

F). Qualifications to be an Arbitrator

 

The Act nowhere specifies what are the qualifications to be possessed by an arbitrator. Though, expressly it cannot be said as a shortcoming of the Act, it is felt that some provision should be incorporated specifying the necessary qualification to be possessed by an Arbitrator. As an ‘arbitrator’ is considered to be a ‘private Judge’, there should be some essential guidelines to be adopted and followed for protecting the dignity and status of the position he holds.

 

Remedy

 

A new provision specifying the necessary qualifications to be possessed by an arbitrator as follows may be incorporated.

 

S.10A: Qualifications to be an Arbitrator\

1)    A person shall be qualified to be an arbitrator, if he satisfies the following:

     (i)   be not less than thirty years of age.

  (ii)  be persons of ability, integrity and acquaintance in dealing problems relating to Commerce, Accountancy, Industry, Law and Economics.

    (iii) Should possess a Bachelors degree from a recognized University.

    (iv)  Should not have been convicted and sentenced to imprisonment for an offence involving moral turpitude.

    (v)   Should not be a person having vested interest, so as to effect the independence of Arbitral Proceedings.

 

Conclusion

 

Some of the shortcomings which are likely to defeat the objectives of the Act are pointed out above. Removing them by incorporating adequate remedial measures by way of necessary amendments in the ‘Arbitration and Conciliation Act’ will make it a vibrant statute that would cater to its objectives and responsive to the contemporary requirements.

 

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1. According to Respectfully Quoted: A Dictionary of Quotations, it is attributable to William Gladstone, as viewed in http://bartleby.com/73/954.html., last viewed on 11th March, 2009. Also see Magna Carta, Cl. 40 which reads: “To no one will we sell, to no one will we refuse or delay right or  justice”. As viewed inhttp://www.britannica.com/history/docs/magna2.html.last viewed on 11th March, 2009.

 

2.   S.10 - Number of Arbitrators.

       (1)   The parties are free to determine the number of arbitrators, provided that such   number shall not be an even number.

       (2)   Failing the determination referred to in sub-s.(1), the Arbitral Tribunal shall consist of a sole arbitrator.
 

3.    S.23. Statement of Claim and Defence

       (i) Within the period of time agreed upon by the parties, or determined by the Arbitral Tribunal, the claimant shall state the facts supporting his claim, the points at issue and relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.

           

High Court’s Roster of Waste

(By Jijo Paul, Advocate, High Court of Kerala)

 

‘From Probation to Pension’ authored by the redoubtable Sri. K. Ramakumar, published in 2008 (4) KLT Journal 49 provokes thought. It suggests a method to save the time spent by the High Court on the intake of new cases. Whether one agrees with the suggestion made or not, it should open the doors for a fresh creative discussion on ways and means to improve the alarming delays in the High Court of Kerala.

 

I do not agree with the pundits who predict that the system will soon crumble under its own weight. It will not - because it has not happened this far. Has history ever recorded any civilized State turning disorderly because the cases have piled up in courts? Anyhow, it is not commonplace. But still it is dangerous because there is always a first time. Nobody knows what will happen if the system crumbles - be it under its own weight or because the people lose confidence in it or a combination of both with other factors. In nations that have attained advancement, courts have less work load since the other systems work better. Some countries keep the litigation costs prohibitively high to reduce litigations - something that would be absolutely unworkable and unacceptable in the Indian context.

 

It is a huge challenge to keep the courts accessible to the common man and simultaneously to keep the pendency within limits. There are so many questions but so few answers. In the sixty years of independent existence, none has come up with practical suggestions to keep the numbers less frightening. It is nobody’s fault. There are no magic solutions either.

 

Taking a cue from Sri. Ramakumar’s enlightened words, “Tough and taciturn action should take the place of the tabor of statistics”, let me share some thoughts to improve things in the High Court. Let us be reminded that it is the High Court that has the longest queue in the State and, comparatively, the period of gestation in the subordinate courts is negligible.

 

Some minor administrative and statutory changes could - albeit slightly - improve the pendency situation. I may endeavour to make some suggestions.

 

Suggestion No.1:-

Amend S.3(1)(6) of the Kerala High Court Act and confer jurisdiction on the Single Judge to hear all appeals from original decrees or orders in any suit or other proceeding where the value of the subject matter is upto twenty lakh rupees (against the present one lakh rupees).

 

This will take the burden of a large number of Appeal Suits/Regular First Appeals, Motor Accident Claims Appeals, Miscellaneous First Appeals, Land Acquisition Appeals and the like from the Benches of two Judges. The amendment may be retrospective in its operation to take in appeals which are (long) pending. It being a procedural matter (arguable, of course), retrospective amendment will survive the test of constitutionality.

 

The limits of pecuniary jurisdiction as they stand after the amendment to the Kerala Civil Courts Act, 1957, by Act 6 of 1996 in anomalous, if not absurd. The District Courts are conferred with jurisdiction to hear appeals from courts of Subordinate Judges, where the amount or value of the subject matter of the suit does not exceed two lakh rupees. The Single Judge of the High Court has jurisdiction to hear appeals only up to a pecuniary limit of one lakh rupees. The fact that Kerala High Court Act was not appropriately amended after the Kerala Civil Courts Act was amended has caused criminal waste of the precious judicial time of the Kerala High Court over the last eleven years.

 

It would also be ideal to further amend the Kerala Civil Courts Act to increase the pecuniary jurisdiction of the District Courts in the matter of hearing appeals to reduce the number of civil first appeals in the High Court.

 

Suggestion No.2:-

Writ Petitions seeking relief of Police Protection and against police harassment consumes considerable time of the Division Bench. Under S.3(10)(iii) of the Kerala High Court Act, the Single Judges are conferred jurisdiction to exercise power in relation to matters falling under “cl.(l) of Art.226 of the Constitution of India except where such power relates to the issue of a writ of the nature of habeas corpus”.

 

True, the Single Judge has the power to “adjourn it for being heard and determined by a Bench of two Judges” and the Bench of two Judges may exercise powers in “any matter in respect of which the powers of the High Court can be exercised by a Single Judge” (see S.4(1)). Still there is no reason why the Writ Petitions filed under Art.226(1) of the Constitution of India should be heard by a Bench of two Judges. An administrative order by the Chief Justice to effectuate this will save substantial judicial time of the Division Benches.

 

Suggestion No.3:-

The Division Benches of the Kerala High Court have already wasted considerable time or revisions under S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Upon a reference made by the Single Judge, a Division Bench of the Kerala High Court held that under the existing law “a Single Judge is not competent to deal with revision under S.20 of the Rent Control Act” (See Kunhi Velu v. Abdul Samad (1990 (2) KLT 506), but hastened to observe:

 

“It is a matter for the legislature to provide a remedial situation, if felt necessary. Rent Control Revisions hitherto have been dealt with by a Single Judge of the Court, though circumstances were slightly different. There is no reason why revisions of the type, and in respect of the problems covered by the Rent Control Legislation, could not be dealt with and disposed of by a Single Judge”.

 

An amendment, either to the Rent Control Act or the High Court Act will be required for the purpose. Despite the observation of the Bench, Division Benches did continue to waste time and energy on Rent Control Revisions for the past seventeen years, as the legislature failed to amend the laws.

 

Suggestion No.4:-

An appeal filed under Section 19 of the Family Courts Act, 1984 has to be heard by a ‘Bench of consisting of two or more Judges” (See S.19(6)). Of course, the parliament in it’s wisdom thought it necessary to provide such. The logic behind the provision, however, is hard to comprehend. Is it because the appeals under S.19(1) of the Family Courts Act involve substantial questions of law which require consideration by Division Benches? Or, is it because the Parliament felt that the sanctity of marriage can be better preserved by Benches of two Judges? Neither seems to stand to reason. For one, very few matrimonial appeals involve questions of law and still few, substantial questions of law. Most of them are filed for return of the property and money gifted to the wife at marriage and/or for divorce, both mostly involving questions only of fact.

 

It is not prudent to assume that the sacrosanct institution of marriage is unsafe in the hands of the Single Judge of the High Court. The Parliament may need to re-think - in its wisdom - to amend S.19(6) of the Family Courts Act.

 

Why reduce the number of Division Bench Cases?

 

The courts are established on the premise that the disputes in an organized civil society have to be resolved by independent arbitrators. The role of the civil, constitutional and criminal courts, therefore, is limited to resolution of disputes in accordance with law. In most of the cases, it does not make a difference whether the court is manned by one or more Judges as long as they are independent and fair. Statistics of the High Court would show that Division Bench cases await disposal for much more years than Single Bench cases. With the existing Judge strength the number of Courts can be increased with the result of bettering disposal rate, if the Division Bench cases are limited to ones that, in the interests of justice, require consideration by Benches of two Judges.

 

Re: Educating the Legislature

 

Wisdom is the height of knowledge. From what the legislatures have not done in the past couple of decades, it seems that the legislatures do not have sufficient knowledge of the reasons for delays in court for the wisdom to legislate appropriately to dawn on them. Knowledge can be acquired only though education. It is the duty of the legal fraternity to educate the legislature regarding the ways and means by which cases in the High Court can be disposed of quicker.

 

Tailpiece

 

These are only some thoughts - not a researched article. The inputs are gathered from loitering in the Kerala High Court premises for a little over a decade, considerably influenced by the illuminating discussions on the verandahs.

Law Schools and Professional Excellence

(By Sindhu Soman, Lecturer in Commercial Law, School of Legal Studies, CUSAT)

 

The objective of this paper is for the purpose of obtaining some preliminary reflections between the often noticed divide between legal theory and practice.  Judge Harry Edwards lamented “the growing disjunction between legal education and legal profession”, claiming that “many Law Schools… have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship (Harry.T.Edwards “The Growing Disjunction between Legal Education and Legal Profession, 91 Mich.L.Rev.34 (1992).). This observation is said to be true today as much as in the year 1992 when it was written. It is the institutional constraints that limit law school offering courses devoted entirely to legal theory.  This may also be with an objective to attaining good position among the law school ranking that they have increased the number of faculty members devoted to legal theory.  This has led to a certain extent of disapproval of the practitioner’s methods in academic circles.

 

Whether the Legal Academy should undergo any radical reform?  Answering this question seems to be our most urgent business.  Scholars have recently illustrated why the disapproval of theory is partially wrong? (Neal Kumar Katyal, “Hamdan v. Rumsfeld, The Legal Academy goes to practice” 2006  Harv.L.R. 66.) The case of Hamdan  v. Rumsfeld (126  U.S S.Ct  2749  (2006).) relating to determination of the powers of the President during armed conflict demonstrates some of the benefits of theory to practice.  Three different theoretical tools which were involved in the case were (i)  Psychological research on framing effects and the bias towards compromise. (ii) The Theoretical enquiry into the timing of litigation and the “passive virtues” and (iii) Economical analysis of penalty default rules. The studies in Law Schools of these three are considered as irrelevant at present. The example of the practice of sophisticated experienced lawyers of the Constitutional Courts employing a strategy of extremeness aversion has been subject to analysis.  An advocate files a certiorari petition based on arguments that push the logic of the Lower Court to the maximum and then argues that in case of the opinion becoming law the result will be horrible.  The petition then advocates a strong but seemingly more reasonable position completely opposite to the Lower Court opinion thereby casting the dispute as extreme.  The sharply opposite positions might persuade the Court to hear the case.  At that moment the Advocate changes his goal from getting the case selected to winning it. 

 

The reasons for decision in cases which the courts allow will be necessarily narrower.  The extreme position announced in the petition, becomes not a liability but rather the useful anchor for the discussion by presenting the advocate as a reasonable friend of the Court who would be contented with more limited relief.  The advocate comes across not as reversing course but merely as trying to win the favour of the court by acceding to the compromises the Justices will seek.  In taking this term a lawyer cannot give up on the broad position but explains that the broad position is not necessary to reach because of an available and more limited ground in his favour.  Oral arguments both continue in strategy and further another objective.  The advocate explains why the other sides’ position is extreme unlike his position which is reasonable.

 

The pattern, from petition to oral argument, repeats itself all the time. Despite the recurrence of this pattern, legal scholars have given no systematic attention to its implications for Constitutional Courts’ decision making. Cognitive psychologists, meanwhile, have examined similar patterns in a variety of other contests.  They have found that the presentation of extreme positions defines the location of the “middle position” in a way that skews rational decision making by making particular compromise appearing more favourable. This is just one example of how theory can inform practice and vice versa.

 

At the same time, it is easy to overstate the case for theory. The truth is that very few law schools today prepare students to be lawyers and this responsibility  is shunted off to law firms, the judges for whom students clerk, prosecutor’s offices, and others. The obvious exception is law clinics, which do offer crucial lessons in the art of good lawyering. But, clinics, despite their many virtues still do not reach most law students, and their connection to the theoretical law taught is vague.  The cost of this educational failure is massive, forcing employers to spend their limited resources on training new lawyers on the basis of their jobs. Teaching about court room presence and how to interact and communicate directly in a courtroom are essential to litigating, yet modern law schools do not emphasize them.

 

One way of understanding the phenomenon is through the lens of administrative law.  In that case the Justices consciously refused to award deference to the presidential determinations at issue because they lack support from the bureaucracy. 

 

The court in that way rejected a view of some academics that had taken route in the administration that the President’s interpretation automatically was entitled to a strong deference as held in Chevron v. National Resources Council (467 U.S.837 (1984).). In cases such as Hamdan in which litigants piths with the powers of Congress against the President, deference to latter may be appropriate when the executive can present its interpretation as product of deliberative and sober bureaucratic decisions.  Expertise has been a key component of deference enquires in administrative law.  When courts decide whether to award deference to an executive interpretation they consider three factors, (1) expertise, (2) whether there has been delegation and (3) political accountability.  Judge Stephen Dreyer stated that “Court will defer more when the agency has special expertise than can bring to bear on the legal question” (Stephen Breyer “Judicial Review of Questions of Law and Policy, 38 Admn.L.Rev. 363, 370 (1986)).  Hamdan suggests that when such expertise is lacking or ignored, the court will stand on stronger ground quashing an executive interpretation.

 

Under both Administrative Procedure Act and Chevron, courts reviewing agency’s decision look for signals that an agency both had and used its expertise! as part of this  inquiry; courts often emphasis agency’s methods which courts have the institutional competency to monitor as a proxy for the agency’s expertise.

 

Administrative Law is not the first field of law courts relying on evaluation of method as a proxy for evaluation of substance.  In criminal law the case of Daubert v. Merrill Dow Pharms Inc (509. U.S 579,592-94 (1993).) provides for limited structured discretion available with court in deciding the reliability of expert evidence.   The second step mentioned in the Chevron which asks the courts to evaluate whether the agency has developed the permissible construction of the statute is essentially an investigation into the methods of agency decision making.  Court and scholars alike has analogized this stage of review to arbitrary and capricious standard under the A P A with its emphasis on reasoned analysis.   

 

In State Farm(Motor Vehicle Manufactures Association v. State Farm Mutual Automobile Insurance Co.463. U.S. 29.) the national highway traffic administration having rescinded the requirement that all motor vehicles be equipped with passive meters provides a clear example to demonstrate recent analysis informed by proper methods overcoming the finding on substance. Formal process and expertise may also prove critical in determining which cases fall outside the deference.

 

  Not all theory is good; however some is downright dangerous, as litigations attest. Practice can in action be seen to reign in theory. Indeed, practice itself provides one way to test whether a theory is good or bad. Generally speaking, one measure of a theory’s validity is whether it comports with the values, traditions, and practices of the nation. Practitioners as that term implies, often have sensible instincts on such questions. As such, they may provide useful insights into why something is done in a certain way, or why a new theory might destabilize other areas of law. We have thus to look forward to the future of both the bar and the academy and outline some possible reforms in law schools to integrate the benefits of theory and practice. Law schools must continue to teach analytic reasoning, close reading, and writing skills. But successful lawyers need to know more. A law school has to provide training specializations and in working groups and speaking and communicating effectively and this is at present beyond the standard curriculum.

 

For legal educators the reform to undertake is that law schools shall continue to teach theory.  Since the only remedy for bad theory is good theory, by fleshing out concepts in the classroom educators can ensure betting in before entering real world. Such a breadth and the depth of examination cannot be obtained by law review alone.

 

The revolution in legal education in the passed decade incorporating greater theoretical awareness in the class room as scholarship is a healthy development.  The teaching of innovative thinking skills and methods has potential for benefits beyond those immediately obviously to the law student. At the same time an obsessive focus on theory neglecting the practice of law gives diminishing returns. The law schools must equip the students with practical skills that will allow them utilize theory in their work outside the academy. Only then will theory truly meet practice. 

 

Legal clinical programmes have to be promoted.  But care should be taken to avoid the divide between class room and practice.  Their practitioners are not able to talk about theoretical concepts and theoreticians are unable to discuss the practice of law.

 

Students for young laws who are thus equipped can play a vital role in raising the level of debates in important cases. What the students lack in experience and expertise, they make up in enthusiasm and passion.  Law schools contribute to the profession by inculcating this quality in students and shall try to develop outlets to channel the skills outside law clinics.