Outrages 354 I.P.C.
By S.A. Karim, Advocate, Thiruvananthapuram
21/04/2008
Outrages 354 I.P.C.
(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)
S.354 I.P.C. speaks about assault or use of criminal force to a woman with intent to I outrage her modesty. It is cognizable, bailable and punishable for 2 years or fine or both. The same section is non-bailable in Orissa State. In Andhra Pradesh, S.354 I.P.C. is a sessions offence and punishment is seven years and fine.
Under the Criminal Procedure Code, it is a compoundable offence with the permission of the injured. In a case reported in 2008 Crl. L.J. (NOC) 8, Delhi, between Anita Diwan v. State Government (NCT) of Delhi, the learned Judge stated the compounding petition is not voluntary and the offence is against society. So compounding is disallowed.
S. 354 reads - Whoever assaults or uses criminal force to any woman, intending to outrage, or knowing it to be likely that he will thereby outrage her modesty shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
Different State Governments see the gravity of the offence in different ways. Now the Delhi High Court has stepped in with a graver interpretation. Why cannot the law makers make S.354 I.P.C. uniform from Kashmir to Kanyakumari.
The Judgment - In Re Murder Sport in Kannur
By K.P. Radhakrishna Menon, Judge
21/04/2008
The Judgment - In Re Murder Sport in Kannur
(By Justice K.P. Radhakrishna Menon)
A landmark decision
The observations, the comments and the annotations, particularly those to quote The New Indian Express of 12th March, 2008, "Where man slaughter is a competing sport, party leaders very cunningly escape unhurt in this cruel and blood - thirsty game, all political parties there seem to indulge in inhuman activities, all party peace missions are nothing but a hoax to hoodwink the fickle-minded public" and like remarks in the judgment reflect the nightmarish feelings of the panic - stricken apolitical citizens who love and live for Mother India. The Judge has also found that even the investigation into the crimes by the Police, who, the Judge observes are 'par excellence', has become farcical due to the unethical interventions of the politicians and their sycophants and hangers on. That the judicial conscience is hurt is clear from the comment, "Blessed are those who are able to die a natural death in Thalassery". About the criminal administration in the State, it shall be said, it partakes of the characteristics of an organisation of byazantaine complexity; and the result is the denial of the fundamental right of a person namely, 'protection of life and personal liberty' guaranteed under Art.21 of the Constitution.
When this peculiar situation is brought to the notice of the High Court, should the High Court intervene and protect the most precious fundamental right of the citizens guaranteed under Art.21 or should the High Court remain a mute spectator to the near to anarchy situation in an area within its jurisdiction, is the first question that warrants an answer, in the light of the unethical and unpardonable criticisms, the political bigwigs have leveled against the Judge who delivered the judgment.
The answer is a big 'Yes'. I shall refer to Art.215 of the Constitution which says that, "Every High Court shall be a court of record and shall have all the powers of such a Court including, the power to punish for contempt. Construing the Article, the Apex Court has declared that the High Court has inherent and plenary powers unless expressly or impliedly limited and subject to the appellate jurisdiction of the Supreme Court. The Apex Court therefore declared that the High Court has unlimited jurisdiction including jurisdiction to determine its own powers. Prima facie therefore no matter can be said to be beyond the jurisdiction of the High Court. It is all the more so in the case of enforcement of the fundamental right guaranteed by Art.21. The Higher Judiciary in our judicial system envisaged under the Constitution is the sentinel of the fundamental rights of the citizens.
It shall not therefore be said that the Judge has crossed the limits. One more question warrants an answer. Is the Judge justified in holding that the only solution to abate the political killings is, a timely intervention by the Union Government by deploying sufficient force in the affected area? The answer lies hidden in Art.355 read with Art. 34 and Entries 1, 2 and 2A of List 1 of The Seventh Schedule. These constitutional provisions empower The Union Government to declare 'Martial Law' in any area within the territory of any State, to protect the State against external aggression and internal disturbance. The words employed in Art.355, 'it shall be the duty of The Union to protect every State against external aggression and internal disturbance' make it clear that it is the bounden duty of the union, if found necessary, to declare martial law and deploy 'force' to abate the anarchical situation and thereby restore peace and tranquility in the area. I shall in the connection quote the constitutional expert H.M. Seervai. He comments, "the power to declare martial law to put down such internal disturbances could thus be part of the legislative powers of the Union under Entries one and two of List 1 (I would add Entry 2 A, virtually confirming the view of Seervai, inserted later) also. This Entry 2A says deployment of any armed force of the union or any other force, subject to the control of the union or any contingent, or unit thereof, in any State in aid of the civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. This entry in fact is explanatory of Art.34 empowering the Union Government to declare martial law in any State. Seervai further says that Art.355 can be invoked without a proclamation by the President as in the case of Art.352. To quote Seervai: "If a rebellion or a revolt in a place can be put down by use of the force without issuing a proclamation under Art.352; it is submitted that there is nothing in The Constitution which requires such a proclamation to be issued. One of the reasons is that before the machinery of issuing such a proclamation can be set in motion, grave and irreparable damage may be done if in a sudden emergency prompt action is not immediately taken to meet force with force. It is submitted that under Art.355 read with Entries 1 and 2 (I would add 2A subsequently incorporated), there is ample executive power to put down rebellion or a state of war by martial law". Dicey, a renowned constitutional expert says that the proclamation of martial law is an act of the Executive Government which in its own will suspend the law of the land.
The inference irresistible from the discussion above is that the Judge was right and well within his jurisdiction to tell the Union Government to deploy "force" in Kannur to abate the killing spree let loose for want of Governmental action at the right and appropriate time, for obvious reason. Had the Judge not made a declaration regarding the deployment of the Central force, I definitely would have assigned him a place in the list of authorities, constitutional or otherwise, who are enveloped by the proverbial statement that "cowards die many a time". Now the Judge has shown the courage to safeguard the fundamental right of the citizens who love and live for Mother India, guaranteed under Art.21. And therefore kudos to the Judge.
Before I conclude - A request to the big - wigs in politics and the representatives of the people in the Parliament and the Assemblies. Please study and understand the Constitution and the political history of The Democratic Governments in the World and discharge your functions so that you will be able to build a new and prosperous India where every one will be happy and all will live in harmony. When this comes true, every Indian will go to dust a proud citizen of India, to rise again and rejoin in its glory as stated by the former President A.P.J. Abdul Kalam.
/ conclude quoting Goethe: "Whatever you can do or dream you can, begin it. Boldness has genius, power and magic in it. Begin it now".
Judicial Impartiality an Enigma or Reality
By V.K. Babu Prakash, JFCM, Kollam
21/04/2008
Judicial Impartiality an Enigma or Reality ?
(By V.K.. Babu Prakash, Judicial First Class Magistrate, Kollam)
"Decision making in any circumstance, is a complex function containing logic and emotion, rational application of intelligence and reason, intuitive responses to experience, as well as physiological and psychological forces of which the decision maker may be only partly aware".
- Justice Michael Kirly of The High Court of Australia
It has been a pleasure and satisfaction to read the excellent article of Honourable Beverley MC Lachlin pc, The Chief Justice of Canada on the topic 'Judicial Impartiality, The impossible quest?' from the material of National Judicial Academy, Bhopal. The author looks at impartiality as an essential component of Judicial decision making. Yet as human beings, can Judge be truly impartial? He argues emphatically that impartiality, the ability to judge a case fairly is not the same thing as neutrality which is the absence of all preconception and personal preferences like the blind fold figure of Justitia, Judges must approach their task with absolute neutrality and objectivity. Cool reason, uncontaminated by personal commitments, biases and preconceptions, is essential to fair adjudication of the cases that come before them. However, as human beings, they do not approach the task of adjudication blind folded. They arrived at the bench already shaped by their experiences and by the perspectives of the communities that they come from, and they possess convictions and prejudices, just like every one else. Author profitably quotes Lord Macmillan as follows. "Impartiality is not easy to attainment. For a Judge does not shed the attributes of common humanity when he assumes the ermine. The ordinary human mind is a mass of prepossessions inherited and acquired, often none the less dangerous because unrecognized by their possessor. Few minds are as neutral as a sheet of plate glass, and indeed a mind of that quality may actually fail in judicial efficiency, for the warmer tints of imagination and sympathy are needed to temper the cold light of reason if human justice is to be done".
Dean Roscoe Pound identified four stages in judicial decision making:-
1. Ascertaining the facts
2. Finding the law
3. Interpreting the legal materials selected
4. Applying the resulting legal percept to the cause.
These four stages reflect the basic mental operations that enter into a judgment. They are not sharply distinct from each other, but rather over lap. The facts of a case assist the Judge in finding, interpreting and applying the law like wise, the characterisation of a matter as falling within a given field of law and the identification of the application rule help the Judges to identify the facts relevant to the disposition of the case. At each of these stages of judicial decision making, impartiality is essential. Yet, at every stage, the possibility exists that Judge's experience and values may influence the out come. Whom the Judge chooses to believe and how the Judge selects, defines and applies the relevant legal rules are inevitably affected by Judge's own experience and beliefs. The obvious fact that Judges are human beings may have seemed less problematic when judges were viewed as discovering the law rather than making it. For years, the declaratory theory of law held sway among lawyers and Judges in the common law world. Judges, it was said, did not make law, but simply discovered it. Their judgments declared the law as it had always existed. Since Judges only declared preexisting law, their own experiences and values did not enter into the decision making process or the resulting judgment. The personality of the Judge became identified with the office itself; he or she became a personification of the law. However, this vision of the judicial role was challenged in the first half of the 20th century. It was argued that Judges make law both in explicating the law by interpreting legislation. In doing so, it was argued that the judge's experiences, values and ideas were just important to judging as his or her legal education.
Justice Mclachlin formulates four sources of guidances which help navigate the Judges through the sea of difficult questions to be decided They are :-
1. Historical context
2. Current context
3. Recognised methods of logical reasoning
4. An appeal to one's sense of what is just.
In the historical context that is, how the law on a certain issue has historically developed is to be looked at. Judges faced with uncertainty in the law must make a decision. Usually, two or more solutions are possible. The starting point for Judges, in choosing between alternative solutions in hard cases, is an understanding of the historical evolution of the law in the area in question. How has the particular problem developed? Which of the proposed solutions best respects the history of the law on the general subject? In the second source that is the current context, the social or economic reality in which decision is being made, Judge did not simply involve the application of abstract principles. A Judge's decision impacts directly and indirectly on people's lives and on the economic, social and constitutional development of the nation. It follows that a good Judge must consider not only the past law, but also the ways in which choosing this or that alternative will play out in the real world. In analysing the current context a Judge relies on expert evidence, experience and common sense.
In the third source which is recognised methods of reasoning the hub and spindle are deduction and induction. Deductive reasoning helps Judges to decide how to. apply a general rule in a particular case. Inductive reasoning may assist Judges in identifying the appropriate general rule. Often deductive and inductive reasoning are used together. Past cases and hypothetical situations are analysed inductively to test how far a certain norm extends, or ought to extend, the Judge then reasons deductively to apply that norm to the case at hand . Reasoning by analogy is an indispensable part of both inductive and deductive reasoning. The comparison of like and unlike permits Judges to determine the extent of similarity and dissimilarity between cases for the purpose of induction, and helps the Judge to determine whether a case is a particular instance of a general rule. Finally in the fourth guidance the Judge is guided by his or her sense of fairness or justice. This concept is conceived from Aristotle's principle of general justice and special justice. According to Aristotle special justice has two components. It involves, firstly a concern with the fairness of distributions of benefits and burdens or what we now call distributive justice. And it involves, secondly, a concern with the rectification of right violations or what we now call corrective justice. Both of these components of special justice are of assistance to Judges facing difficult cases. Through their experience both legal and non legal, Judges come to have a sense of what requires in a particular case, and they look to this to guide their interpretation and application of particular legal rules.
On an assimilation of the guidelines, it would be appropriate that Judges should look at the current context of the problem and how a particular solution will impact on the lives of men, women and children and the collective well being of the community, the nation and the global community. They should ensure that their reasoning processes are valid, and they must end by asking themselves whether the decision they propose to make it is just and fair. It must be fairly recognised that Judges, like all human beings, possess personal preferences and predispositions which have the potential to skew the judging process and create injustice. Our review of the tools of legal reasoning and their use in the process of judging has shown us that certain subjective influences, including general beliefs about the world and about human nature, a wide range of emotions and a sense of justice are an in escapable part of judicial decision making. Along with the need for Judges to rely on these subjective elements, comes the risk that certain unacceptable subjective elements, such as prejudices and biases will enter into decision making process. Judges are not social or political eunuchs. They are individuals with their own identities, cultural back grounds, gender, race, religion, sexual orientation and political beliefs. All these inform the Judge's experiences and the way the Judge sees the world and all of these open the possibility that the Judge's reasoning or decision will be based on an illicit consideration. As Justice Frank observed; "we are born with predispositions, and the process of education, formal and informal, creates attitudes which precede reasoning in particular instances and which, therefore by definition are prejudices, every Judge unavoidably has many idio syncretic learning of the mind, uniquely personal prejudices which may interfere with his fairness at trial".
Does this lead to the proposition that Judicial impartiality is a misnomer rather than a reality? Does the fact that all legal minds are subject to innate susceptibilities and prejudices, or leave room for subjective elements, imply that judicial impartiality is impossible? No it is not. It may be true that neutrality, or the absence of any subjective elements, is impossible. Yet a well founded distinction is needed between neutrality and impartiality. Impartiality does not, like neutrality, require Judges to rise above all values and perspectives. Rather, it requires Judges to try, as far they can, to open themselves to all perspectives. Neutrality in a sense, requires the absence of all preconceptions and personal preferences. It can best be understood in terms of the metaphor of the blank slate - the tabula rasa. Impartiality, by contrast, describes the ability to raise above the flurry of conflicting views, and to judge a matter fairly, taking into account all the perspectives engaged. Neutrality requires an empty mind, which is different. Impartiality lies not in the absence of preconceptions and opinions but in the capacity to entertain and act on a number of different points of view. And this capacity, far from requiring a mind that is a tabula rasa, infact demands a mind that is vigorously engaged with particular perspectives and capable of imaging itself into a variety of other perspectives.
It is worthwhile for Judges to practice conscious objectivity or certain attitudes to keep the scale of balance of impartiality steady. They are:
1. Introspectiveness
The Judge must be willing to take moral stock of himself or herself. As Justice Frank puts it, "The conscientious judge will, as far as possible, make himself aware of his biases of his character, and by that very self knowledge, nullify their effect. The concealment of' the human element in the judicial process allows the element to operate in an exaggerated manner, the sunlight of awareness has an antiseptic effect on prejudices. Freely allowing] that he is a human being, the Judge can and should, through self- scrutiny prevent the operation of his class biases". Thus, introspection involves an assessment of the Judge's own values, beliefs and ideas in relation to those expressed in the legal system, where there is convergence between the Judge's values, beliefs and ideas and the law's values there is no risk of partiality. On the other hand where there is divergence, the Judge must make a, conscious effort to see that personal values do not lead unjustly to the favouring of particular party or position. The Judge must accept that the price of judicial office is that the law must supersede personal loyalties.
2. Openness
The Judge must essentially possess openness. The Judge's mind must be open and receptive to ideas and arguments that may compete with the Judge's personal preconceptions. This willingness to receive and act upon new and different ideas, arguments and views lies at the heart of true impartiality. Impartiality implies an appreciation and understanding of the different attitudes and view points of the parties in controversy.
3. Empathy
The third good attitude is empathy. Empathy emphasises the common humanity of us all, judges, litigants, witnesses, and all other participants in the justice system. It is the ability to see the world from the perspective of others and become engaged in their experience. It is the conscious attempt of the Judge to enter into the skin of the litigant and make his or her experience part of Judge's experience.
4. A Healthy and Serene Mind
A tired judge, sick judge or distressed judge may be unable to summon the energy required for the introspective and open processes of mind. Keeping a healthy mind and positive attitude is not always easy for the modern Judge. Today's Judges face extraordinary pressures. Physiological and psychological stress are part of the job. The work is demanding, both intellectually and emotionally. Judges deal with the most difficult human situations and the most intractable social problems and the consequences of an incorrect or unjust decision can be enormous. The isolation and loneliness of judicial office is yet another problem. The modern Judge is more involved in the community than was before. Yet, judicial life inevitably increases isolation. The Judge emerges from congratulatory appointment and celebrations, later painfully realises that the phone no longer rings. Valued relationships become less intimates, some may end. Even long term friend seems differential and distant. Conversations are mutually self centered and communication more difficult. High profile cases, where a Judge is subject to intense public scrutiny, intensify these problems. The difficult task of judging becomes ever more so when one's every twitch or blink is under the eye of the press and the public. Criticism of judicial decisions and judicial conduct is appropriate in a healthy democracy. But the fact is that commentary can be inaccurate, unfair, personal and hurtful. The Judge cannot reply or set the record straight, but must suffer in silence.
However, Judges are fortunate. They enjoy the enormous privilege of helping people and serving justice. Each day on the bench brings before them humanity in all its diversity and richness. Justice Beverley Mclachlin, the learned author concludes his remarkable article with a touching true story. It concerns of a Judge who found himself completely bereft of emotional responses as a result of brain damage inflicted by shell fragments. The author says as follows:-
"It might be thought that the absence of emotion and of the biases that go with it, would have rendered him more impartial, indeed uniquely qualified as a judge. But he himself with great insight resigned from the bench saying that he could no longer enter sympathetically into the motives of anyone concerned, and that since justice involved feeling and not merely thinking, he felt that his injury totally disqualified him."
Parable
Wherever in the world, the judges are doing the same sort of Job, deciding matters coming before them impartially by living in isolation, ill health, anguish, stress, strain and what not, burning like candles, still to brighten up the world around them with that tiny light of justice.
Tools and Techniques Towards Justice
By K.T. Thomas, Former Judge, Supreme Court of India
14/04/2008
Tools and Techniques Towards Justice
(The inaugural address delivered by Mr. Justice K.T. Thomas, Former Judgeof the
Supreme Court of India at the workshop - National Judicial Academy - South Zone on 29.2.2008)
The words tools and techniques are easily understandable, but the word justice is not so easily understandable. The goal of judicial function is to give justice to the parties. What is justice ?. It is a difficult question to answer, because the notion, the concept and the contours of the word justice had varied in different situations, in different ages, and among different people. Can I say that justice is what your conscience dictates? That also may be abstract, because your conscience is conditioned by your upbringing, your social background etc. and therefore to say that you may leave it to your conscience is also not a sound or legally pragmatic solution to the question. The jurisprudential bywords, justice, equity and good conscience, survived many generations as guidelines to judicial function. It is an uphill task for me to embark on the exercise to delineate the standards, dimensions and boundaries of justice.
As you are in the cadre of judicial personages the need for in-service training has been felt during the latter half of 1980's. Thereafter constant upgrading of knowledge, skills, attitudes and judicial behavior has become a regular programme. When I was judge of the High Court, I felt that training should not be limited upto the level of District Judges. Our practice is to recruit at least two third of Judges of the High Court directly from the Bar and the remaining are from judicial service. The assumption was that bar candidates recruited to the High Court needed no training as their period at the Bar was itself a sort of training also. The nucleus of a model Judge burgeons in the mind of a young lawyer, on seeing different Judges with different temperaments in different situations. With vast expansion of legal dimensions, a fresh recruit from the Bar undergoing training would become stringer*** and better and a still more ideal Judge.
In your judicial exercise, how would you conclude that a certain finding would be just. Is there any legal sanction for governing such exercise. You look at S.3 and S.114 of the Evidence Act. They are the repository of all the canons of judicial exercises. The first contains a fantastic definition clause telling us what is meant by "proved". A fact is said to be proved after considering the matters before it, the court either believes the fact to exist or considers its existence so probable that a prudent man ought to act upon the supposition that the fact exists.
This is the fulcrum of judicial exercise. This was framed 136 years ago, but even today no one can replace it. On the evidence before you, if you believe that a fact exist one test is over and that is enough. If that test is not enough to satisfy you, you go to the next test. If you consider the existence of a fact so probable on the evidence that a prudent man should act on the supposition that the fact exists, it is deemed proved. You must remember that this is the standard for both civil and criminal cases. In civiI cases, you say your finding is by preponderance of probability and in criminal cases you say that it is proved beyond all reasonable doubt, in effect both are the same. You do not pass a decree in a civil case unless you are satisfied of its proof with reasonable certainty. Similarly, you do not convict a person unless you are satisfied of the allegation with reasonable' degree of certainty. The difference is only semantic syllogism evolved around the philosophy] involved in either field.
S.114 equips you to presume the existence of any fact which you think likely to happen having regard to the common course of natural events and human conduct. These two provisions are quintessence of all the guidelines for all the courts. Other sections are' either elaborations of this basic guideline or exception to it. Law assumes two postulates in you. One is that you are a prudent man and the other is, you are a conscientious person Take the case of certain contingencies under the Oaths Act. If a person agrees to take oath or refuses to take oath law is relying on your common sense to draw the necessary inference. Take the cases of signatures and handwriting comparisons. Your eye is the final equipment. | Law has reposed greater confidence on your eye than even a microscope. Of course, microscope and expert opinion can be your guidance and not more.
These days a lot of comments are seen heard and read about Judges and their method of functioning. Public depicts some Judges as honest Judges. It perturbs me because this epithet was not seen prefixed to judges two generation ago. It was enough then to say that he was a Judge. There was no need to describe him as honest Judge any more than this. No need to describe the ice-cream as cold ice-cream. In my opinion, the expression dishonest Judge is an oxymoron. The dictionary gives a funny illustration to define the word 'oxymoron' as "Indian made foreign liquor". Are we to believe that the species of honest Judges would be nearing extinction? But remember that judgments can be made only by honest judges. The end product of a dishonest judge is only a synthetic camouflage. The dishonest Judge as well as the recipient know that it is a contaminated document.
Jesus Christ exhorted on his disciples to "be innocent as doves and vigilant as serpents". The true translation of that exhortation should have been this: "be honest as doves and sensitive as serpents". As I have already dealt with the first attribute, I may now tell you the need for being vigilant. But vigilance against what? You have to be vigilant against anything that might exert external influence on your judgment making process. I have come across one silent yet strident factor which can exert influence on your independent judicial decision. It is the trend of sensationalisation of events and episodes by the media, both print and electronic. Of course media has a great service to democracy and particularly to the field of dispensation of justice. It is the media which could unearth a lot of instances of miscarriage of justice buried down. We must be indebted to the fourth estate in disinterring such instances. But at the same time, we must guard against the pre-trial brain washing or pre-judgment feeding of judicial mind through sensationalizing episodes which would eventually reach the court for final judgment.
As every Judge is a reader of at least one newspaper, and is a viewer of at least one electronic channel, you are bound to read, see or hear about incidents or episodes happening around you. In many cases the events are published in such a manner as to evince readership interest. With the proliferation of both print and electronic media, a Judge is now to guard himself against such indirectly influencing pretrial brain washing.
I cannot forget the story of Hoffman. He was sentenced to capital punishment on the charge of murdering and burying the body of his twelve year old step-daughter. Thepunishment was confirmed in appeal and his mercy petition was rejected. But twelve yearsafter Hoffman was executed, the supposed to have been murdered step-daughter returnedto England from Australia. The conviction made by the Trial Court and the Appellate Courtwere on account of sustained media campaign against Hoffman. Even the investigatingagency could not by-pass the intensity of the public opinion generated by the height ofsensationalisation. Remember that Hoffman episode, though happened about two centuriesago, was not an isolated instance on this point. There were similar instances of capitalmiscarriage of justice which occurred even in India on account of high velocity pre-trialbrain feeding. I know it is a difficult task for Judges to extricate themselves from the mentalformation of attitudes to events highlighted and sensitized by the media. But you have toevolve your own measures to keep your judicial mind uninfluenced by sensationalizedviews and news.This workshop will provide you with the necessary wherewithals to protect yourself and equip you to be Judges in true spirit. I thank Chief Justice H.L. Dattu and Justice Kurian Joseph for bestowing on me the privilege to inaugurate this workshop.
Thank you.
Valsalakumari -- (2007 (4) KLT 494 (SC)) Not a Binding Precedent
By Benoy Thomas, Advocate
07/04/2008
Valsalakumari -- (2007 (4) KLT 494 (SC))
Not a Binding Precedent
(By Benoy Thomas, Advocate)
If Apex Court judgments are rendered without noticing relevant statutes, rules, Government Orders and binding judgments on the subject, it creates ‘precedential chaos’ in the justice delivery system. The judgment of the honourable Supreme Court in Valsalakumari Devi M. v. Director of Higher Secondary Education (2007 (4) KLT 494 (SC) Hereinafter cited as Valsalakumari) and others is one such instance where the Apex Court has gone wrong in its decision making process.
The Apex Court was considering the question whether seniority or merit was the rule in respect of an appointment made on 30.3.2001 of a private aided higher secondary school teacher from the lower level in the State of Kerala in pursuance of G.O.(M.S.)162/98/Gen.Edn. dated 13.5.1998. Apex Court held that seniority was the rule. For coming to its conclusions the court relied on the criteria of seniority and suitability prescribed in G.O.(MS)No.l38/90/Gen.Edn. dated 27.6.1990.
Soon reflected consequences of the decision at the High Court level. Division Bench of the High Court of Kerala following Valsalakumari reversed the judgments of learned single Judges, set aside the appointments made and held that seniority was the rule in respect of appointments of aided higher secondary school teachers appointed from the lower level even before Dollichan’s judgment dated 14.11.2000 against the 25% quota reserved for them. In those cases the single Judge earlier held that the matter was covered by direction No. 3 of Dollichan v. State of Kerala (2001 (1) SCC 151 Hereinafter cited as Dollichan) delivered by the Apex Court granting protection to all appointments made in pursuance of G.O. dated 13.5.1998 and continuing as on the date of the judgment viz. 14.11.2000.
In the above circumstances I feel that a critical analysis of Valsalakumariis just and necessary in public interest.
The questions considered by the Apex Court in Valsalakumariare referred to in para 11 of the said judgment. The relevant question reads as:
(i) “ Whether the selection of the fifth respondent for the post of higher secondary school teacher was made ignoring the criteria of seniority and suitability envisaged under G.O.(M.S.) No. 138/90/Gen.edn. dated 27.6.1990?"
On facts
Higher secondary was granted in the aided sector in the State only in the academic year 1991-92, whereas in Government schools it started in the year 1990-1991. In Govt. Schools the appointment of teachers were governed by executive orders issued by the Government under Art.162 of the Constitution of India in the absence of rules made under the Public Services Act, whereas in the case of aided schools the same was governed by executive orders r/w the provisions of Kerala Education Act in the absence of rules framed under the K.E. Act. This position continued till regular recruitment rules were made in respect of Government and aided schools on 16.4.2001 and 12.11.2001 respectively pursuant to the directions dated 14.11.2000 in Dollichan’s case. As far as Govt. Schools are concerned pre-rule appointments by transfer were made from qualified lower level teachers on the basis of the principle of seniority and suitability as laid down in Govt. order dated 27.6.1990. It is true that the interpretation given by the Apex Court in Valsalakumari to the expression “subject to seniority and suitability” occurring in G.O. dated 27.6.1990, that it only means seniority of the qualified hands is correct in respect of Govt. schools to which the G.O. has application. In Valsalakumari it has not come to the notice of their Lordships of the Supreme Court the fact that G.O. dated 27.6.1990 had application only in respect of General Education Subordinate service which consists of only Government school teachers. The crucial aspect of the matter that this G.O. was never applied in the State in the matter of deciding the legality of the method of appointments of aided higher secondary school teachers was also not brought to the notice of the court. Unfortunately the relevant Govt. orders in respect of aided schools viz. G.O. (M.S.) No. 18/91/Gen.Edn. dated 1.2.1991, G.O.(M.S.) No. 29/91/Gen.Edn dated 27.2.1991 and G.O.(M.S.) No.162/91/Gen.Edn. dated 1.10.1991 wherein the method of recruitment to the post of aided higher secondary school teacher was dealt with treating the post as a selection post where selection has to be made on the basis of the recommendations of a selection committee consisting of a Govt. nominee from 1991-1992 till the date of coming into force of the rules on 12.11.2001 were not brought to the notice of the Honourable Court in Valsalakumari. In these circumstances the Honourable Judges of the Apex Court applied G.O. dated 27.6.1990 with G.O. dated 13.5.1998. In G.O. dated 1.2.1991 it was prescribed that a selection committee will select the teachers and non teaching staff in the private higher secondary schools and that there shall be a Govt. nominee in the selection committee. There was a selection committee all through out in respect of aided school appointments irrespective of the source of appointment. It is evident from the same G.O. that teachers appointed on full time basis from among qualified teachers within the management will draw their salary plus special pay of Rs.250/- p.m and for direct recruits as full time teachers, the scale of pay will be fixed by the Government. G.O. dated 27.2.1991 only prescribed the change of personnel of the selection committee. G.O. dated 1.10.1991 also reiterated prescription of the same selection committee for promotion by the management and for fresh appointment. Sufficient relaxation in the matter of constituting the selection committee was given to the minority managements as well, indicating that the post was a selection post where merit and not seniority was the rule in contradistinction with the method in Government schools. There was no mention about seniority in any of these Government Orders.
The further developments and course of events centered around G.O. dated 13.5.1998 were also not brought to the notice of the Apex Court. In G.O. (M.S.) No. 162/98/Gen.Edn. dated 13.5.1998 Government prescribed a ratio of 25:75 between transferees from lower level and direct recruits in the matter of appointment of aided and Government higher secondary school teachers . The said G.O. was challenged by different groups viz.aided high school teachers contending that they must be given promotion to all the available vacancies following the seniority principle laid down in R. 43 of Chap.14 A of K.E.R., minority managements inter alia contending that they must be given freedom of selection on the basis of merit to 100% vacancies, Govt. school teachers challenging the ratio of 25:75 seeking 100% for them etc. etc. A Division Bench of the High Court of Kerala by judgment dated 18.8.1998 in Krishnankutty v. State of Kerala(1998 (2) KLJ 301 Hereinafter cited as Krishnankutty.) upheld the G.O. dated 13.5.1998 and repelled the contentions of lower level teachers. It was categorically held by the Division Bench that lower level teachers have no right against the post. It was also held that method of appointment from lower level teachers was by transfer, relying on Govt. stand that high school and higher secondary are different services. (This position was subsequently adopted in the rules also). The constitution of the selection committee to select teachers from among the teachers in aided schools was also upheld. Thus it was held that the post being a selection post the contention of the minority managements that they do not have freedom of choice has no basis. Thus the seniority theory based on Rule 43 of K.E.R. put forward by lower level teachers was rejected by the court. Thereafter appointments were made inaided higher secondary schools against the 25% category prescribed in G.O. dated 13.5.1998 on the basis of the recommendations of the selection committee based on merit and not on seniority. Subsequently Krishnankutty was challenged before the Honourable Supreme Court in Dollichan by the very same groups who were before the High Court. The Apex Court passed interim order dated 1.2.1999 in respect of Government schools to follow the list prepared by the Government obviously on the basis of G.O. dated 27.6.1990 where the seniority rule was incorporated. On the other hand by way of an interim order dated 7.12.1999 issued in respect of private aided schools, appointments were directed to be made on the recommendation of a selection committee prescribed therein in respect of appointments from lower level as well as direct recruitment. The Apex Court has taken into account the method of appointment being followed in aided schools right from 1991-1992 based on merit on the basis of the Government orders mentioned herein above and consciously omitted the seniority rule in the interim order. The interim orders passed by the Apex Court in respect of Government schools and aided schools reflect the different methods prescribed in the concerned Government orders, one based on seniority and other on merit. Finally by judgment dated 14.11.2000, the Apex Court protected all the appointments in aided schools as well made either in pursuance of G.O. dated 13.5.1998 (done on the basis of the interpretation given to the said G.O. in Krishnankutty by the Division Bench) or in pursuance of the interim order dated 7.12.1999 passed by the Apex Court. Therefore it is clear that seniority was not the rule in aided schools up to 14.11.2000 and the post of HSST was a selection post and appointments by transfer from lower level and open market were made based on merit. The above mentioned Government orders viz G.O. dated 1.2.1991, 27.2.1991, 1.10.1991 r/w Ss.10 and 11 of the Kerala Education Act which occupied the field in the absence of rules, the interpretation given to the G.O. dated 13.5.1998 in Krishnankutty, interim orders passed by the Apex Court in Dollichan in respect of Government and aided schools dated 1.2.1999 and 7.12.1999 respectively as well as the final judgment in Dollichan dated 14.11.2000 in which Krishnankutty merged were not brought to the notice of the Apex Court in Valsalakumari. (Apex Court has given a quietus to the disputes relating to appointment centered round G.O. dated 13.5.1998 by giving directions protecting the appointments done till 14.11.2000 in exercise of its power to do complete justice under Art. 142 of the Constitution of India). Therefore Valsalakumari was rendered per incuriam and not a binding precedent under Art.141 of the Constitution of India. It is not because certain points were not considered by the Apex Court resulting in an incorrect judgment but due to the reason that the court failed to notice the Government orders relating to aided higher secondary appointments r/w Ss.10 and 11 of the Kerala Education Act and judgment in Dollichan in which Krishnankutty merged.
Valsalakumariwas passed sub silentio
It is respectfully submitted that in Valsalakumari, it was not brought to the notice of the Apex Court that the method of appointment prescribed in G.O. dated 26.7.1990 including the seniority principle incorporated therein never applied in the State of Kerala to regulate the appointments in the aided higher secondary schools from 1991-92 till 12.11.2001, the date of coming into force of the Aided Higher Secondary Recruitment Rules (Chapter 32 of KER). The said G.O. was issued during 1990-1991 when there was not even a single higher secondary school in the aided sector. The G.O. was applied by the Government only in respect of appointments by transfer from lower level teachers as higher secondary school teachers in Government Schools. In the absence of any discussion or arguments on these facts the judgment in Valsalakumari was founded on a mistake of fact and therefore it could not be held to belaw declared so as to attract Art.141. The fact that method and criterion of appointment of higher secondary school teachers in aided private schools and Government schools were different from 1991-92 till the making of the rules on 12.11.2001 was not perceived by their Lordships of the Supreme Court while delivering judgment in Valsalakumari. Nor was it perceived by the learned Judges that G.O. dated 13.5.1998 was once interpreted in Krishnankutty and the Apex Court earlier examined the matter while passing interim orders dated 1.2.1999 and 7.12.1999 in respect of Government schools and aided schools in Dollichan’s case where Krishnankutty was under challenge in appeal and further that Krishnankutty finally merged in Dollichan wherein the court protected all appointments made in pursuance of G.O. dated 13.5.1998 and continuing as on 14.11.2000, the date of judgment. Therefore judgment in Valsalakumari was passed sub silentio and cannot be considered as a declaration of law having binding authority under Art.141 in respect of aided higher secondary school teacher’s appointments made in between 1991-1992 and 12-11-2001. It is true that in Valsalakumari Apex Court was considering the legality of the method and criterion of appointment of an aided higher secondary school teacher made on 30.3.2001 ie. a post Dollichan appointment made before the notification of the rules. It may also be noted that in Dollichan there was a further direction that appointments shall be made only as per the rules directed to be framed. However, in the absence of rules framed, the Government orders continued to occupy the field till 12.11.2001 ie. the date of notification of aided schools rules. Therefore the above Government orders not brought to the notice of the Honourable Court held the field till 12.11.2001 as far as aided school appointment were concerned. G.O. dated 26.7.1990 as already stated had application only in respect of Government schools and the said G.O. ceased to have operation w.e.f. 16.4.2001 ie., the date of coming into force of Government school rules pursuant to Dollichan’s directions whereas the other G.O.s mentioned above relating to aided schools not brought to the notice of the Apex Court continued to have operation till 12.11.2001 the date of coming in to force of aided schools rules. The above facts and the points of law centered round them which is logically involved in the case like the question whether the court is right in pronouncing upon a post Dollichan appointment made in pursuance of G.O. dated 13.5.1998 without reference to Dollichan were not perceived by the learned Judges of the Supreme Court while delivering judgment in Valsalakumari. Therefore Valsalakumari was passed sub silentio even in respect of the validity of a post Dollichan appointment.
Per incuriamand sub silentio case law revisited
The expression per incuriamwas explained in para.11 of Municipal Corporation of Delhi v. Gurnamkaur(AIR 1989 SC 38.) by stating that a decision should be treated as per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of a statute or a binding judgment.
It was held by the Constitution Bench of the Supreme Court in Punjab Land Development and Reclamation Corporation Limited v. Presiding Officer Labour Court ((1990) 3 SCC 682 Para. 40) that Art. 141 of the Constitution of India embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. The learned Judges of the Apex Court quoted Bengal Immunity Co. Ltd. v. State of Bihar (AIR 1955 SC 66.) wherein it is stated that the words of Art.141, binding on all courts within the territory of India, though wide enough to include the Supreme Court does not include the Supreme Court itself and it is not bound by its own judgments but free to re consider them in appropriate cases. But the Constitution Bench in para.43 clearly stated that as regards the judgments of the Supreme Court allegedly rendered in ignorance of a constitutional provision or other statutory provisions on the subjects covered by them, the Supreme Court may not be said to “declare any law” on those subjects if the relevant provisions were not really present to its mind.
It is in this context a Bench consisting of Justice T.K.Thomman and R.M.Sahai, J further clarified the law on per incuriam in State of U.P. v. Synthetics and Chemicals Ltd.((1991) 4 SCC 139) It was held at para. 40 of the said judgment that English Courts have developed this principles in relaxation of the rule of stare decisis and the ‘quotable in law’ is avoided and ignored if it is rendered in ignoratium of a statute or other binding authority (Young v. Bristol Aeroplane Company Limited) (1944 (2) ALL ER 293).It was held that the same principle has been accepted, approved and adopted by the Supreme Court while interpreting Art.141 of the Constitution of India which embodies the doctrine of precedents as a matter of law. Thus it is well settled that if an Apex Court judgment is rendered in ignorance of a statute or a rule having force of law or a binding precedent, the said judgment is rendered per incuriam and cannot be said to have declared any law for the purpose of Art.141 of the Constitution of India and therefore the authority before which it is cited is not bound to follow the said decision as law declared by the Apex Court and therefore as a binding precedent.
A bench of the Supreme Court consisting of Justice Lahoti and Brijesh Kumar, J. in State of Bihar v. Kalika Kure((2003) 5 SCC 448) further clarified the legal position with more precision and the law seems to have been laid down correctly. Their lordships of the Supreme Court have clearly drawn a distinction between a decision rendered in ignorance of any provision of a statute or a judicial authority of a binding nature and a decision in which a possible aspect of the matter was not considered or not raised before the court or more aspect should have been gone in to by the court. It was held that while the former decision is per incuriam the latter is not. The latter decision may be an incorrect decision but it is still binding. The bench of the Supreme Court added a note of caution that in the latter type of cases easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways either to follow the earlier decision or refer the matter to a larger bench to examine the issue. (In that case the Apex Court was pronouncing upon the conflicting decisions of a High Court) Needless to say that if the latter type of decisions are of the Supreme Court, the High Court has no option than following it. In other words the High Court cannot avoid following a Supreme Court decision, otherwise applicable by saying that the decision was rendered without considering a particular point. As the Apex Court pointed out in the above judgment that Art.141 is attracted in such cases not because the decision is correct but it is not rendered per incuriam. The only instance in which the High Court can avoid following a Supreme Court decision otherwise applicable is when the Supreme Court decision was rendered per incuriam or sub silentio and therefore it comes within the exception of binding precedents for the purpose of Art. 141 of the Constitution of India. It can also be said that in such circumstances the Supreme Court has not declared any law on the subject so as to attract Art.141.
‘Law declared’ and sub silentio
As held in State of U.P. v. Synthetics and Chemicals Ltd.((2003) 5 SCC 448) a decision which is founded on a mistake of fact cannot be said to be law declared (Para. 42). As held therein a decision which is not express and is not founded on reasons, nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. Any declaration or conclusion arrived without application of mind cannot be deemed to be declaration of law or authority of a general nature binding as a precedent, held the Apex Court in the said decision (vide para 41). A decision passed sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind, held the Apex Court in the above case quoting from Salmond on Jurisprudence. Lancaster Motor Company (London) Limited v. Bremith Ltd.((1941) (1) KB 675, 677), was quoted with approval wherein the court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority. The above decision was approved by the Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur whereinthe bench said, ‘precedents sub silentio and without arguments are of no moment’.
Conclusions
1). Valsalakumariwas rendered per incuriam for having omitted to notice relevant Govt. orders r/w Ss.10 and 11 of the Kerala Education Act then having force of law in the absence of rules made under the Act and applicable for regulating the recruitment of teachers in aided higher secondary schools. The learned Judges of the Apex Court also failed to notice the judgment in Dollichan in which Krishnankutty (wherein G.O. dated 13.5.1998 was once interpreted) merged. 2). It was passed sub silentio being based on mistake of facts ie. mistakenly relying on G.O. dated 27.6.1990 applicable to Government Schools only which constitute the General Education Subordinate Service. It was not perceived by the Judges that different methods of appointment are being followed in the State of Kerala in respect of Government Schools and aided schools which even reflected in the different interim orders passed by the Apex Court in Dollichan’s case. 3). The Supreme Court judgment in Valsalakumari having been rendered per incuriam and sub silentio cannot be said to have ‘declared any law’ and therefore not a binding precedent for the purpose of Art.141 of the Constitution of India.4). A High Court is competent to say that the Hon’ble Supreme Court has not declared any law in Valsalakumari and therefore not a binding precedent under Art.141 of the Constitution of India.
5). Valsalakumari vis-a-vis pre Dollichan appointments :- In any view of the matter Valsalakumari is distinguishable since it was rendered in respect of a post Dollichan appointment made on 30.3.2001 and therefore cannot be pressed into service in respect of pre dollichan appointments made before 14.11.2000. At any rate the legality of a pre Dollichan appointment made in pursuance of G.O. dated 13.5.1998 was not required to be decided in Valsalakumari and therefore whatever said in Valsalakumari cannot be considered as law declared in respect of a pre Dollichan appointment made in pursuance of G.O. dated 13.5.1998.
6). Even assuming that Valsalakumariis correct in holding that seniority was the rule in respect of a post Dollichan appointment made in pursuance of G.O. dated 13.5.1998, the fact remains that it was rendered without noticing Dollichan wherein all appointments made in pursuance of G.O. dated 13.5.1998 continuing as on the date of the judgment ie. 14.11.2000 were held not to be annulled. Dollichan was rendered in appeal against Krishnankutty which interpreted G.O. dated 13.5.1998.Krishnankutty merged in Dollichan. Krishnankutty proceeded treating appointment from lower level teachers as higher secondary school teachers as appointment by transfer relying on Government stand that the posts belong to different services. According to Krishnankutty the post of aided HSST was a selection post and it was held that the prescription of a selection committee for selecting teachers from among high school teachers is valid and does not infringe the rights of minorities, who are having sufficient choice for selection. Thus appointments were made in the State of Kerala against the 25% category treating the posts as selection post, based on criteria of merit assessed by the Selection Committee. If any appointment is made in this State pursuant to G.O. dated 13.5.1998, before 14.11.2000 that could only be as per the interpretation given to the said G.O. in Krishnankutty. These appointments were finally protected in Dollichan by direction No.3 thereof. Krishnankutty having been merged in Dollichan is therefore not available for interpretation in respect of a post Dollichan appointment, relying on Valsalakumari. Suffice to say that appointments made before Dollichan cannot be interfered with on the basis of the judgment in Valsalakumari rendered subsequent to Dollichan and wherein a different interpretation to the Government orders that too without reference to Dollichan was adopted. The view that any appointment continuing as on 14.11.2000 cannot be annulled in view of directions in Dollichan and that inter se disputes have to be settled accordingly was applied in principle in two Division Bench judgments of the High Court of Kerala viz. W.A. 1638/2002 dated 18.9.2007 and W.A. 452/2005 dated 26.5.2005. Therefore Valsalakumari has no application in respect of a pre Dollichan appointment.