Judicial Grand Canyon

(By K. Ramakumar, Advocate) 

Article 22 of the Constitution of India reads as follows:

“22.(1) - No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

No other profession gets this pride of place in the supreme document of the country though rights to Medical Aid and Primary education have been declared part of right to life by the Apex Court. Why, because the Constitution envisions the Rule of Law and not merely of men. And lawyers are apostles in the temple of justice. They are, no doubt known as legal practitioners, but what they are expected to provide is legal service. Can they therefore, be left high and dry with their mouths thirsty and with thoughts of food (not food for thought), in a place where they plead for liberty, equality and protection of rights?

This however, is exactly what is happening in the high rise High Court Structure described by the judicial Statesman of the country Sri Justice (Retired) V.R.Krishna Iyer as

“a grand ‘Canyon’ in reverse wonder and concrete commercial architecture, beating in height any Big Business tower, competing in Air-conditioned interior decor, Five Star aesthetics” 

(See 2006 (2) KLT Journal page 105), which surprisingly is chosen to house the highest court of justice in the State. All courts are open to the public. They are as of right, entitled to watch proceedings in Court (See Section 327 of the Code of Criminal Procedure) . The open and transparent justicing system that we had inherited from the British, has fortunately been left untouched and not tinkered with. How can members of the public or those who plead for them then be denied the basic necessity of drinking water, the nectar that sustains life? What is a public place like a court building where thousands throng every day, worth, without drinking water facility? Yet not a drop of water is given to thousands of Lawyers appearing in the High Court. Their representative body is asked to fend for itself with the stinking and dirty water from the Tube well erected by themselves at their expense. And no cooking is permitted in the sophisticated High Court Building, the reason being unknown to any sensible human being. Lawyers have to be content with food cooked elsewhere and earlier - warmed when ordered - a sure passport to Peptic disorders. And not even the Advocate General of the State has a parking lot in a building owned by his own client, not to mention the absence of parking facilities to other ordinary lawyers.

Sounds preposterous? Yet stark true. Is this the way a building belonging to the people of the State whose hard-earned hundred crore rupees have been spent on it be designed and erected? And who is footing the huge mind boggling electric energy charges - almost eight lakhs of rupees every month? Again the wretched people. Why does a court building need so many lifts - many of them not helping people lift themselves up - but only making shrieking and frightening sounds most of the day. If only the Court halls are located sensibly in three floors which costs nothing extra! That is how all the civilized countries have constructed their Court buildings. The Supreme Court of India is a known land mark in Delhi. So are the Court buildings in Allahabad and even in Puthukkottai in Tamil Nadu. The Australian High Court- in not so crowded Canberra - opposite the fashionable Parliament House - with lush green spread in between is stunningly beautiful. So is the Madurai Bench nearer home. Why is that in Kerala alone it is an eye sore, albeit in a city beauty spot. Who is really responsible for this mess?

The Lawyers of the High Court these days hardly meet, or great each other. No chatting. No joking. No sharing of spicy gossips or salacious scandals. No library to read or refer. The days are drab and dreary. The blazing Banquet Hall like Court rooms are no doubt impressive but not appropriate for serious work. Judges have a sprawling and spacious dining Hall in one of the floors where none of the judges has eaten till date. Their own Chambers are large enough to host a five course dinner. How does the dignity, prestige or power of our Bar friendly judges get affected if they gracefully agree to re-locate the Court rooms in the first three floors - in the rooms with the same dimension. The poor citizen who bore the extra expenses to change the flooring to wooden tiles in the place of slippery marbles in one of the rooms, will willingly agree as he will save crores of rupees annually on current charges. Let me quote again from Sri Justice (Retired) V.R. Krishna Iyer, as I dare not even put up a poor imitation of his inimitable style:

“The spectacular Cathedral or stupendous building which costs a little less than 100 crores and has several air-conditioned floors to accommodate Benches is distances away from the penurious litigant whose hunger for right and justice has no time and space while the court is engaged in proprietariat litigiosity. Our States are near bankrupt. Our budgets hardly bother about the basic constitutional obligations (like health and education) of the Socialist Secular Democratic Republic”.

It is not good that those who are supposed to render legal service to the society leave the High Court with minds full of anxiety and anger, disillusionment and despair, helplessness and hopelessness, with their legs tired, mouths thirsty and stomachs empty.

It is not too late even now. Let us look out for a new place large and long, calm and cool, not amidst the madding crowd but in the outskirts of the city- not driving away the rare species of birds from the adjoining Mangala Vanam -where a beautiful temple of justice can be built - not for High priests alone but for those who pay for it as well.

“Buildings do not a judicature make nor judicial Numbers a great Court” - Justice (Retired) V.R. Krishna Iyer. 

“SABCO SANMATHI DE BHAGWAN”

Reservation of O.B.Cs in Institution of Higher Education

(By Justice K.P. Radhakrishna Menon)

A probe into the political history of independent India is enough to opine that the Central Government led by the Indian National Congress wants to undo the decision, the Nehru Cabinet took in the year 1961 that no national list of other backward classes should be drawn up for giving concessions. The Centre simultaneously had informed the State Governments that its firm view was :

“It was better to apply economic tests than to go by castes”.

Immediately thereafter there was a conference of Chief Ministers to consider matters relating to National Integration. At that meeting the Central and State Governments had “agreed that economic backwardness rather than community or caste, would provide an appropriate criterion for giving aid to individuals in matters of education, including professional and technical training”.

The Government perforce had to take this decision because the Government led by Nehru was of the view that there was the danger of divisiveness or disintegration, if different treatment of the “backward classes’’ continued. The Cabinet also expressed the opinion that such differential treatment would thwart the general economic progress and effort to erase the disparities between different classes. The States accordingly were asked, “to attend to the welfare and educational benefit of the weaker section, employing economic rather than communal or class basis.” This policy decision was endorsed by the Ministry of Educations’ Committee on Emotional Integration in 1962 as evidenced by the concluding portion of its report: -

“ The time has now come, in our opinion, when increasingly assistance should be based on economic criteria. In some states powerful groups have exploited “backwardness” to their own advantage and to the detriment of the society as a whole ...................... It also results in the long run in making the ‘backward classes’ less self-reliant than they should be”. The Centre also expressed that caste criterion was objectionable as “the remedy suggested on the basis of caste”, would be “worse than the evil of backwardness itself ". It is interesting to note here the comment of the Central Government’s spokes-person that “Caste criteria were not only administratively unworkable but contrary to the first principle of social justice............and would perpetuate caste”. This view of the spokes person was flashed in 1965 when the Parliament was having discussion on the backward commissions report. 

The Chairman of the Backward Class Commission was also of the same view though he was a signatory to the report, which had given the details of the communities and castes entitled to backwardness. He says “it would have been better if we could determine the criteria of backwardness on principle other than caste, because the caste test is repugnant to democratic principles and inimical to the creation of casteless and classless society by perpetuating caste division”. He therefore recommended that backwardness shall be determined by “residential, economic, educational and cultural criteria”.

The Home Minister in the Nehru cabinet was also of the same view. In the course of his speech in the Parliament, he made a scathing criticism couched in these terms: “The emphasis on caste displayed the dangers of separatism, caste basis is not only unfair to the backwards outside the community but it is the greatest hindrance in the way of our progress toward an egalitarian society. Not only that, the recognition of caste as backward may serve to maintain and perpetuate the existing distinction on the basis of caste”.

Taking into account these criticisms and the decision of the Nehru cabinet, Dr. Marc Gallanter (Professor at the Law School, University of Winconsin) in his Treatise on ‘Law and Backward Classes in India’ captioned ‘Competing Equalities’ has stated: ‘the very expansiveness of the commissions list undermined its usefulness, for, if every one, “barring a few exceptions”, has thus to be regarded as backward, the really needy would be swamped by the multitude and hardly receive any attention”.’ Another danger, the creamy layer in contra distinction to the needy in such backward classes will enjoy the entire benefits, leaving the needy in lurch forever.

Political history records that the tide started running strongly against the Governments defining the backward classes on the basis of caste and community. The National Press took up the issue. The Times of India showered respectful accolades on The Mysore High Court, which rendered the decision in Ramakrishna Sing (dated 18th September, 1959) evidenced by its editorial in the issue dated 24th September, 1959.

The only rational test for backwardness is a person's economic circumstance and not his caste......... The Mysore and similar orders elsewhere show how caste ridden the Congress is, despite the anti-caste protestations of its leaders”. The Mysore view was given the stamp of approval by the Supreme Court.

Dr. Marc Gallanter, commenting on the judicial pronouncements has stated: “Central government’s campaign for economic criteria in the States was given added impetus by the first intervention (since 1951) of the Supreme Court into the matter of who are the backward classes. In September, 1962 the Supreme Court struck down the Mysore backward classes list whose defects included exclusive reliance on caste standing as a measure of backwardness adding the onus of Constitutional disrepute to the caste criterion”.

The timely and bold decision of the Nehru cabinet to sustain the unity of India, the present Central Government led by the followers of that great and noble patriot, Nehru has apparently decided to erase from the political history of independent India and resurrect the evils of castism, communalism and fundamentalism, gnawing off the unity of the nation, by introducing the buried quota system for OBC in Higher Educational field by amending the Constitution. What an irony? This decision is also an affront to the law declared by the Apex court, virtually approving the decision of the Nehru Cabinet. It is really interesting to note that the Nehru cabinet was also of the view that any administration encouraging the caste predominance will stand as a stumbling block in our march towards an egalitarian society.

The decision of the HRD Minister awaiting the approval of the cabinet, to introduce the quota system reserving certain percentage of seats in Higher Education field, for the benefit of OBC determined on caste basis, reflects a retrograde policy which, as the Home Minister in the Nehru Cabinet asserted in 1961, displays” the dangers of separatism”.

Viewed from an historical perspective the OBC imbroglio, madly crisis-crossing the Nation, should not have been there. The archives of the Central Government speak for this.

Why the Central Government want to set at naught the decision of the Nehru cabinet after four decades and 6 years, is anybody’s guess. After sixty years of independence, Mother India cannot suffer decisions like this, which undoubtedly would disseminate separatism and divisiveness among her children. May I therefore request The Prime Minister to veto the move of the HRD minister to resurrect the evils of castism, communalism and fundamentalism which, our beloved Pandit Jawaharlal Nehru and his companions gave a decent burial four to five decades ago, and thereby allow Mother India and Her Children to live in peace.

That is correct? what was incorrect?

(By M.S. Bhasi, Advocate, N. Parur)

I would like to invite kind atention of the readers of this Journal to the recent decision of Kerala High Court in 2006 (3) KLT 364 wherein S. 267 of Cr.P.C. has been interpreted in a broad sense. I think, according to various decisions of the High Court and Supreme Court, the reasons stated in the decision may be correct. Before commending the said decision it is worth full to know what was the factal background of the decision. A learned single Judge of High Court referred the matter to the Division Bench to consider the question whether under S. 267 of Cr.P.C., Magistrate can issue a production warrant and remand the accused who is already in remand in another case, for the purpose of enabling the police for interrogation. While referring the matter, the learned Single Judge cited a decision 2006 (1) KLT 505 wherein a learned Judge of this Court held that it is not possible as under S.73 arrest warrant can be issued to a person who is accused in a non bailable offence only if he is evading arrest and that also can be exercised only against a person residing in the local limits of the Magistrate. When reading these two decisions, I could not find any difference of opinion in 2006 (1) KLT 505 with regard to the other decisions of various High Courts or Supreme Court or Statute in respect of S.73 of Crl.P.C. The learned Judge did not consider the scope and ambit of S.267 of Cr.P.C., and at the same time, public prosecutor did not invite the attention of the Court to do something under S.267 of Cr.P.C. for the same relief. S. 73 and  S.267 of Crl.P.C. are entirely different to each other and deals with different factual situations.

When reading 2006 (1) KLT 505, I would understood that two petitions were filed before a Single Judge to quash two petitions and consequential orders passed thereon by the Magistrates of Perumbavoor and Chavakkad. The question before the Court was that whether a Magistrate can issue a production warrant under S.73 against a person who is already in remand in another case by another Magistrate.

While answering to the question possed before the learned single Judge, he observed that S.73 can have no application since the petitioner is in judicial custody by a competent court and he is not evading arrest or escaping from the arrest or an escaped accused. Hence those petitions were allowed.

There was no prayer from the side of prosecution to invoke S.267 of Cr.P.C. and there was no observation with regard to S.267 of Cr. P.C. If the investigating officers had filed a petition under S.267 of Cr.P.C. to have the custody of prisoner, the result would have been different. The Division Bench answering the question with regard to S.267 of Cr.P.C. which was referred by a learned Single Judge overruled 2006 (1) KLT 505 which specifically dealt with S.73 of Cr. P.C. Hence the Division Bench decision may be correct. But what was incorrect in single Judge decision to be overruled?