Signed Blank Cheque and Burden of Proof
By A.K. Radhakrishnan, Jt. Secretary, A.Gs Office
14/08/2006
Signed Blank Cheque and Burden of Proof
(By A.K. Radhakrishnan, Jt. Secretary, Advocate General’s Office, Ernakulam)
It appears that two Honourable Judges of our High Court have expressed difference of opinion as to whom the burden of proof lies in respect of a signed blank cheque in the context of Ss.138 and 139 of the Negotiable Instruments Act, 1881. This is evident from the two decisions reported in the K.L.T. very recently.
In her elaborate judgment reported in 2006 (3) KLT 972, Hon. Mrs. Justice K.Hema has stated thus:-
“ In cases where the accused raises a plea that the cheque was a blank signed one when it was handed over or received by another person, the court will have to scan through the evidence and the materials placed before it and decide whether the complainant “proved” that the accused has drawn a cheque of the nature defined under the Act or, whether it was only a signed blank cheque which doesn’t satisfy the definition of a cheque under the Act, when it was handed over. The former has to be proved by the prosecution whereas, the latter need only be probabalised, as in a defence case. The degree of proof certainly differs”.
According to the Learned Judge, a prosecution under S.138 of the Negotiable Instruments Act being a Criminal Prosecution, the burden of proof lies on the prosecution to prove its case beyond reasonable doubt and that the accused is presumed to be innocent till the offence against him is proved.
In the considered view of the Learned Judge, cheque is to satisfy the definition of cheque under S. 6 read with S.5 of the Negotiable Instruments Act and that it is the bounden duty of the prosecution to prove that cheque falls within the definition of cheque under the Act. It Is further stated that cheques produced in all cases under S.138 of Negotiable Instruments Act ordinarily contain an order in writing. But that doesn’t mean that the court shall immediately come to the conclusion that such cheques satisfy the definition under the Act.
With reference to the presumption in favour of holder of cheque ie., the holder of a cheque received the cheque of the nature referred to in S.138 for the discharge, in whole or in part, or any debt or other liability, unless the contrary is proved, this is what the Learned Judge has stated.
In order to draw the presumption in favour of the holder of the cheque under S.139 of Negotiable Instruments Act, the court on an assessment of the evidence available must be satisfied that the holder of “cheque” “received” the same by entitlement and that it was not procured by him by any other means. Only after the court gets satisfied that one is the holder of the cheque of the nature stated in S.138 and that he received the same, court can draw the presumption as stated in S.138. In other words, once the basis of presumption exists, the court will have to draw the presumption enumerated under S.139 of the Negotiable instruments Act. If the holder of the cheque has to avail of the benefit of presumption under S.139, the burden is on him to establish ail the prerequisites for drawing such presumption. In a case where the presumption under S.139 are not established or the basis for drawing the presumption that the cheque was drawn for the purpose of discharging a debt or liability under S.139 of the Act, there is no presumption under S.139 that the cheque is “issued” in the sense that it is “executed” by the accused, even if the signature in the cheque is admitted by the accused. There is also no presumption under S.139 or any other provisions of the Negotiable Instruments Act that if a blank cheque is issued, it can be presumed that an implied authority is given to the holder of the cheque to fill it up towards discharge of a debt etc.
The learned Judge has also opined that the expression “received” under S.139 of the Act cannot be equated with the expression “issued” which means “executed”.
Whereas in the decision reported in 2006 (4) KLT 48 Hon. Justice R.Basant has stated thus:- “The defence that a signed blank cheque was handed over by an account holder is inherently a suspicious one and must be approached with great care and caution. If the laudable commercial morality which the legislature wants to usher in by introduction of S.138 of the Negotiable instruments Act in the statute book were to prevail among the polity such an irresponsible casual and indifferent approach by account holders deserves to be discouraged. No account holder is expected to deal with the cheques in such a casual, careless, irresponsible and indifferent manner. Such a defence may still not be impossible in a prosecution under S.138 of the Negotiable Instruments Act. But the burden must certainly rest heavily on the shoulders of such an indictee who wants to attribute such an irresponsible conduct to himself to claim absolution from culpable liability”.
In this context, it would not be out of place to have a look at some of the basic principles pertaining to burden of proof.
Chapter VII of Indian Evidence Act, 1872, deals with burden of proof. It is an obligation to prove facts. It has two meanings. One is burden of proof for establishing a case as a matter of law and the other is one which casts a duty to introduce evidence.
When one is bound to prove the existence of a fact, the burden is on him to prove that fact. In other words, the burden of proof is on one who would fail in a suit or proceeding if evidence is not given on either side. In short, the burden of proof lies on the person who substantially asserts the affirmative of the issue. That burden never shifts. On the other hand the onus of proof shifts. It may be noted that during the course of evidence, there is every possibility of that burden shifting from one to another.
One of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent and that the onus of proving the guilt of the accused beyond reasonable doubt lies on the prosecuting agencies. Thus the burden of proving everything essential for establishing the charge framed against an accused is on the prosecution. So, the burden of proof in criminal case is on the prosecuting party, unless shifted by Legislative interference.
It has to be remembered that when a document is in custody or possession of one subsequent to its execution and if it was found that there was some alteration, it is for the person who has the custody of that document to prove that the same was not altered. Every alteration on the face of an instrument renders it suspicious and the party claiming under it should remove the suspicion. Should there be an alteration in a document subsequent to its execution, the person who is in custody of that document has to discharge the burden of establishing that it is not altered. It has to be stated that anything subsequently introduced (“newly introduced) to a document is material alteration because alteration includes a new insertion also. So, insertion also amounts to material alteration. It is also relevant to note that even if a party admits a document, he has a right to explain that the statement contained in the document is not correct.
Under S.118 of the Negotiable Instruments Act, until the contrary is proved, the presumption is that a negotiable instrument is made for consideration and the burden of proof in the first instance is on the maker of the instrument to prove that the consideration was originally absent in whole or part.
In this context, it is quite relevant to note that when both sides have adduced evidence before the court, the debate as to onus is purely academical. It is then for the court to take a final decision on the issue or issues before it. Way back in 1959, Supreme Court has expressed this point thus “the question of burden of proof at the end of the case, when both parties have adduced their evidence is not very great important and the court has to come to a decision on a consideration of all materials”.
In view of the conflict of views between the two Hon’ble Judges, on the subject captioned, an authoritative decision from a Division Bench is expected in a suitable case.
Justice V.R. Krishna Iyer Vinci Code
By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam
07/08/2006
Justice V.R. Krishna Iyer Vinci Code
(By T.P. Kelu Nambiar, Senior Advocate)
(Felicitation Address delivered, on October 7, 2006, on the occasion of the inauguration of the office of the V.R.Krishna Iyer National Foundation for Law and Social Justice; and the Third Law Lecture on “Human Rights, Challenges of the twenty-first Century”, by Dr.Justice A.S.Anand.)
Salutation and greeting to you all, on the dais and off the dais:
Please admit me to the honour of addressing this great gathering in this Hall which wears a respectful air.
I stand here with proud humility, and with shine in my eyes, to pay respects, not mere compliments, to an achiever, a man of distinguished attainments, never accused of contrast - enhanced image, a sthithaprajna, (man of wisdom), the voice of the generation, the social capital of the country, a scholar -- activist, a crusader for change, the humane face and finger-post of judiciary, the nation’s intellectual insignia, the greatest intellectual energy of the generation, whose continued presence is the requirement of the age and clime.
With the valour of my tongue, I say, Shri Justice V.R.Krishna Iyer, (and there is a lot in that name), belongs to the whole of India and all classes and communities; he is always hungry for law, as if he was born on World Law Day; he did not enjoy the sovereign leisure of Judges. And, if anybody wants to be respected like Sri.Krishna Iyer, be like Sri.Krishna Iyer. “Ten millions of circles can never make a square”, said Goldsmith.
As a lawyer, advocacy was to Sri Krishna Iyer ars magna, the great art; not a shoot-out between the Bench and the Bar. These are days when lawyers, including Judges, fear what they do not understand. These are days when lawyers live in a high-tech world, full of software, hardware, metal and rivets, dull mosaic, granite, marble, with boundless tile floor. And now-a-days, lawyers look to the planet to win a case. Sri.Krishna Iyer used his third eye while arguing. Sri Krishna Iyer had enriched Kerala’s lawyer capital. He was the lawyers’ pride. He was a lawyer with miscellaneous education, who was never a beggar in advocacy; was never a Judge’s baby-sitter. He believed that the judiciary is not the proprietor of the court. He did not indulge in digital speak doing violence to grammar. He is not interested in digital dirt. English literature was his source, his inspiration, his weakness and his strength. Today, only lip-readers could decipher what certain lawyers say. Sri Krishna Iyer spoke fluently and wrote fluidly even on complex issues.
As a Judge, Sri Justice Krishna Iyer never had the ‘J’ factor in him. To him, the Judge’s gravel was not a battering ram. He was a Judge of impeccable courtesy and graciousness. He never had the constitutional impatience of a Judge. His Judgments are a great, riveting read. A poet in judicial prose, his judgments filled up blank pages of law, with Krishna Iyer Vinci Code. Justice Krishna Iyer did not indulge in judicial akrasia. His court was not a clearing house for mandamus. His was not a ‘pressure-cooker’ court. He never had a Judge’s disagreeable laugh. He had a healthy respect for others’ abilities. His was a Judge’s face marked with the lines of thinking. He tolerated lawyers who were indifferent spellers and bad readers. He never wanted any lawyer to sacrifice his pride. As a Judge, he was never found in a cross temper. He was a Judge who did not have a red card. All the same, he used to remind professional greenhorns that their enrolment certificate is not Alladin’s lamp. He was a picture of patience, with a face of concern. He believed, with Goldsmith, that law is the protector, but not the tyrant, of the people. He never was a judicial hot button.
In Sri Krishna Iyer, we see a comprehensive commitment to social justice. As I have said elsewhere, Sri Krishna Iyer had spoken and written about the public and the private; the individual and the collective; the orthodox and the liberal; the prince and the plebeian; the status quo and the pro-change. Sri Krishna Iyer once said: “Declarations from the ramparts of the Red Fort will not feed the needy”. His books are enticing treasures. Every page of his books is sparkling and fruitful.
It does not take the brains of Da Vinci to guess what made Sri Krishna Iyer great. I have known Sri Krishna Iyer “from the heir of his head to the sole of his foot”, to borrow an ancient expression. I should think, I am accredited to his heart. This is proved by his ‘poem-foreword’ to my book “Nambiar Miscellany”. His tender simplicity in behaviour, is well-known. He is an honest heart.
I cherish the privilege of contributing a piece to “Justice Krishna Iyer at 90”, edited by my esteemed friend, Senior Advocate Sri M.P.R.Nair, Barrister-at-Law, who, as I said on 22-12-1998, when I delivered the welcome address, as Chairman, Organising Committee, V.R.Krishna Iyer National Foundation for Law, is the king-pin of this function. This book, writes Sri Justice K.T.Thomas, in his Foreword, is an endeavour to perpetuate the institution named Justice V.R.Krishna Iyer, by immortalising the service of Justice Krishna Iyer to the society. Let me make a rapid digression to certain statements I have made previously, on diverse occasions. Sri Krishna Iyer is a World Bank of Knowledge, with a mind of inexhaustible fertility, who holds his till of learning in trust for the public, for anybody and everybody; a great law-giver, who has played a worthy role to emphasise the pre-eminence of the rule of law, without playing ‘lucky-dip’ with justitia; a legal phophet; a juristice seer; a Jurist-Rishi; a justice of injustice; who has spoken, and tried to uphold the causes, of a wide range of aspects, from prevention of cruelty to animals to affront to human rights; a veritable store-house of inexhaustible knowledge and unequalled vocabulary; who did not lose wisdom in knowledge; a canny mix of brain and brawn; a complete man, who stands tall like Hyperion. When he writes, words sway into labyrinthine maze, with heavy and pleasing alliteration and swaying rhythms; a thesaurus of English language; scholastic gems, indeed. When he orates, orotund words came cascading forth; and the three channels of language-prose, poetry and drama -conflate. It is not possible to conclude the achievements of Sri Krishna Iyer.
“Not what I have, but what I do, is my kingdom”, said Thomas Carlyle. This is true of Sri V.R.Krishna Iyer.
It is my wish and hope that Jacob von Uexkull would recognise Sri Krishna Iyer’s work, ignored by the high-visibility Nobel Prizes, and award the ‘Alternative Nobel’ for Sri Krishna Iyer’s life-time endeavour to make our country a cradle-to-grave welfare State.
My superannuated tongue pleads for rest. Therefore, I stop, by declaring from my heart: “I always feel a humble pride to see Sri.V.R.Krishna Iyer”. I remain fettered by my boundless respect unto him.
Thank you for your time.
The Kin Syndrome
By K. Ramakumar, Advocate, High Court of Kerala
07/08/2006
The Kin Syndrome
(By K. Ramakumar, Advocate, High Court)
The Kin Syndrome is nothing new to Kerala High Court. It had however, developed into dangerous dimensions as was disclosed by an upright, outspoken, honest and popular Judge, who came down heavily on it in the open recently. The Judge made a blistering attack on the manipulative skills, Bench fixing, forum-shopping etc. practiced by a section of the Lawyers particularly with high connections. The Lawyers present in the Court listened with respect and reactions mixed . Even the walls of the Court room wore an approving smile.
While the majority of the Lawyers in the High Court welcomed the plain talk coming from an insider, chills ran down the spines of some of the variety of Lawyers about whom the Judge had made the remarks. The Judge was careful enough to assure the Lawyers that in his court he decides cases on merits and not on the merits of the Lawyers or their high connections.
This was indeed a welcome development as the honest straight forward and patron-less plebian practitioners in the High Court have been feeling the pinch of the sharp practices of some section of the Lawyers. An impression appears to be created by them in gullible minds, they may be able to secure successful, expected and assured orders by their high connection. This puts the entire legal profession in bad light as they do have an edge over their fellow practitioners. It must however be said to the credit of a retired Judge of our High Court, now a practitioner in the Supreme Court, that he forbids his son from entering the portals of the High Court, until the father retired. Another sitting Judge had send his lawyer son and daughter-in-law packing to Delhi.
Is this the august body, that every day speaks of arbitrariness, unreasonableness, discrimination etc. all high sounding expressions? Forum-shopping and Bench fixing appear to have ceased to be disreputable these days. There are lucky legal practitioners who just sign a Vakalath and relax and rewarded. The Apex Court had criticized this practice in severest of words.
“A litigant cannot be permitted ‘choice’ of the ‘forum’ and every attempt at “forum shopping” must be crushed with a heavy hand. At the same time, it is of utmost importance to remember that Judges must act as impartial referees and decide cases objectively, uninfluenced by any personal bias or prejudice. A Judge should not allow his judicial position to be compromised at any cost. This is essential for maintaining the integrity of the institution and public confidence in it. The credibility of this institution rests on the fairness and impartiality of the judges at all levels. It is the principle of the highest importance, for the proper administration of justice, that judicial powers must be exercised impartially and within the bounds of law. It must always be remembered that justice must not only be done but it must also be seen to be done.” (See 1998 SC 1855)
In the Kerala High Court, this scourge started surfacing in the late seventies, but perfected by early eightees, Couple of lawyers even specializing in it. Curiously they were the proteges of couple of high powered persons! It was this clan, who had damaged the fine institution extensively if not irretrievably. Young entrants to the Bar get unwittingly initiated and attracted into this easy road to success. And what was damaged was years of tradition of pupilage, perseverance/ effortful, yearning for knowledge, probity and finally excellence and quality. Quantity has already over taken quality. And even seniority these days can be canvassed, strangely permitted by statutory Rules. The great Kunjirama Menon, a role-model for lawyers, needed no certification from the corridors of power. Just as China didn’t care about mighty U S recognition.
But then where are we heading for? It is time those who love the High Court of Kerala, and live by it arise and awake. The learned Judge had entered an area earmarked for the Bar Council which alas has failed to act. Sri.Krishna Iyer, the living legend in law had coined the expression ‘Kin Syndrome’. Let us make an attempt whether we can do without it.
When Will We Find Our John Grisham
By Narayanan R, Advocate, Thiruvananthapuram
31/07/2006
When Will We Find Our John Grisham?
(By Narayan R.,* Advocate, Thiruvananthapuram)
Chinthamani Kola Case: A Legal thriller-- screams the posters of the Suresh Gopi movie.
Lawyers, legal stories and dramas have enjoyed popularity in the screen (remember James Stewart in Anatomy of a Murder, or Gregory Peck as the suave Atticus Finch in To Kill a Mockingbird, or even our desi screen super-lawyers including Amitabh Bachchan in Zamaanath, Mammootty in Oru Abhibhashakante Case Diary etc.); in television (Ally McBeal, The Practice, etc.) as well as in popular fiction.
Who can forget the tales of King Solomon the Just; or Shakespeare’s brilliant Portia who defends Antonio and her unforgettable words:
‘…take thou thy pound of flesh; But, in the cutting it, if thou dost shed one drop of Christian blood, thy lands and goods Are, by the law of Venice, confiscate unto the state of Venice.’ (The Merchant of Venice, Act IV, Scene I).
Whatever be the perception of lawyers among the public, one thing is sure, legal thrillers [i] are a big hit among the mystery- thriller reading public.
Glancing through the fiction bestseller charts, we can see the presence of an overwhelming percentage of novels belonging to the legal- fiction category occupying, in some weeks, up to half the charts. Every succeeding year sees major new talents breaking into print, a further indication, if any needed, of the genre’s robust health and unflagging energy. What Arthur C. Clarke, Aldous Huxley, H.G. Wells and Isaac Asimov were to science fiction; Erle Stanley Gardner (creator of Perry Mason) John Grisham, Scott Turow, John Mortimer and Steve Martini are to legal- fiction today. Why are so many lawyers dabbling in fiction? The question is a timely one in the light of the current rash of legal suspense novels.
Crime fiction has always been concerned with right and wrong; when the detective apprehends the murderer, there is a sense that the world has been reclaimed from chaos, that order has been established. Legal- fiction takes this idea even further, as the characters struggle to understand not simply right and wrong but justice- a far more elusive and difficult concept. The desire for justice in a world that seems unjust in the extreme is shared not only by lawyers but also by the common man, and this may be the major reason why legal- fiction has taken a lead ahead of contemporary crime fiction.[ii]
In the words of John Grisham, king of legal thrillers:
There are several reasons. First, every lawyer has a good story. We lawyers get involved with people who have messed up their lives, and their mistakes make fascinating stories. Street lawyers see the underbelly of society. Corporate lawyers see high-stakes shenanigans. And since law school and bar exams require some measure of talent with the written word, lawyers think they can add a twist here and a subplot there and produce a real thriller. Second, most lawyers would rather be doing something else. The profession is overcrowded and the competition is fierce. Most of the work is terribly boring. There is tremendous dissatisfaction within the profession, and almost every lawyer I know is looking for a way out. Third, lawyers dream of big, quick money. A gruesome car wreck, an oil spill, a fat fee for a leveraged buyout, a large retainer from a white-collar defendant. It just goes with the turf. A nice advance against royalties, some foreign rights, maybe a movie deal, and suddenly there is cash galore.[iii]
Again, the startling publishing success of the legal thrillers since the late 1980’s also can be related to massive changes in the historical conditions, which underpin the production and consumption of suspense fiction. The collapse of the Soviet Union, the disintegration of the Eastern Block and the end of the Cold War made the old style spy thrillers obsolete. Legal thrillers stepped into this niche in the market, proving to be a big, big success.
The novels of lawyers John Grisham, Scott Turow, Richards North Patterson and Lisa Scottoline now command a huge market in India. John Grisham’s The Firm became a blockbuster movie starring Tom Cruise, while Harrison Ford starred in the film adaptation of Scott Turow’s Presumed Innocent. However, while there is a robust following of the legal thriller genre in India, few lawyers in India have taken up to legal thriller writing. This is surprising, for one of the first works that focused on law and justice- Sudraka’s Mricchakatika, was from India itself, written in the 1st century AD.
Only a handful of writers from India have dabbled in this genre over the past hundred years or so. In 1933, Partha Chatterjee wrote Princely Imposter, based on the true-life ‘Bhawal case’ where a person long thought dead miraculously returned to claim a stake in the family property culminating in an exciting courtroom drama. Tamil Author Devan’s Justice Jagannathan written in 1956 was another exciting courtroom drama based on a murder case. In the Seventies lawyer Harsh Bahadur wrote a couple of novels, including The Case of the Sprightly Widow featuring lawyer S.H. Jung, a perfect Perry Mason pastiche along with a Della Street prototype secretary- Nina Sinha. Likewise K.P. Bahadur wrote a series of detective stories/ whodunits featuring lawyer- detective Kumar, including The Case of the Poisoned Cat and Murder in the Delhi Mail. So also, Bombay lawyer K.L. Gauba brought to life in fiction form some interesting trials that took place in various courtrooms of India. Collections include The Shamim Rahmani Case and Other Famous Trials, Famous Trials for Love and Murder, Sensational Trials of Crime etc. But for these works there are no other major contributions to legal thrillers from India.
Closer home, in Kerala, we can cite examples of many a lawyer/ judge (or persons who studied law) making it big in the world of literature- including Changambuzha Krishna Pillai, O. Chandu Menon, Thakazhi Sivasankara Pillai, Malayattoor Ramakrishnan, C.V. Sreeraman, E. V. Krishna Pillai, C.I. Parameswaran Nair, E.M. Koovoor, M.G. Mathew, Shyam Mohan, Murali J. Nair, K.V. Namboothiri, M.N. Govindan Nair, Chandrasekhara Narayanan, Kavalam Narayana Panicker, M.G. Kesava Pillai, C. Sasidharan Pillai, Umayanelloor Sivasankara Pillai, C.S. Sajad etc. However none of these authors focused their attention on legal thriller writing….. or for that matter popular fiction writing. Advocate P.G. Thampi, the present Director General of Prosecutions, State of Kerala, is a renowned author of horror novels, and Kerala born former lawyer Hugh Gantzer and lawyer Arvind Nayar have a couple of spy novels to their credit.
However, a couple of lawyers from Kerala do have published fiction to their credit belonging to this genre. The most famous contribution being the Cherappayi Kathakal by Ipe Paramel. Though the stories are not thrillers per se- they make interesting reading. Paramel, with his unique humorous prose style, takes us through the life and times of Vakil Cherappayi in and outside the courtroom such that they make hilarious reading. The Cherappayi Kathakal have been compared to that of English Barrister Henry Cecil’sBarrister Roger Thursby Stories and lawyer John Mortimer’s Rumpole Stories in terms of its scathing wit and humour. Likewise Advocate P.V. Thampi, brother of the aforementioned P.G. Thampi, and a prolific writer of horror novels has a single contribution to this genre- Avatharam. But for these two lawyers few others have taken to this genre in Kerala. The only major contributor to legal thriller writing in Kerala was from P. Parameswaran Nair, who surprisingly had no training in law. In the early Eighties, the author self- published a series of courtroom dramas including The Case of the Mousy Manager, The Case of the Spookish Spouse, The Case of the Traveling Toxin, The Case of the Innocent Witness etc. Set in the courtrooms of Kerala, the series protagonist was one lawyer Stewart Sangster, who along with Inspector Sam Laxter solved the most baffling of crimes. Perfect pastiches of Perry Mason novels, the novels bordered on ludicrousness so far as courtroom action and legal procedure were concerned. However, the books are out-of-print today.
Legal thriller movies be it Mohnalal’sAdhipan, Mammotty’s Adikurippu or even Balachandra Menon’s Vilambaram (incidentally Menon is a law graduate) have been huge hits- and the success of Chinthamani Kola Case also shows that the people love good mysteries. And the time is ripe….. Who among us is going to be the John Grisham of India?
* Advocate, Thiruvananthapuram and author of A Fiction of Law : 300 years of LegalFiction Contact the author at advnarayan@yahoo.com.
i. Books classified as legal thrillers invariability feature a lawyer/judge as the protanist. It is usually a sub-genre of the detective story in which the major characters are lawyers/judges/or even the law itself. Courtroom dranas come within this purview.
ii. William Bernhardt, 'Introduction: If Everyone Hates Lawyers so Much, Why Are They Buying Our Books?" Legal Briefs (William Bernhardt Ed., Headline Publication, 1998), p. 7.
iii. The Rise of the Legal Thriller" : Why Lawyers are Throwing the Books At Us", New York Times Book Review(18 October 1992), 33.
Comment on 2006 (2) KLT Journal 86 & 2006 (2) KLT Journal 129
By Kallada Sukumaran, Advocate, Cochin
17/07/2006
Comment on 2006 (2) KLT Journal 86 & 2006 (2) KLT Journal 129
(By Kallada Sukumaran, Advocate, Cochin)
This is to offer comments on the conflicting views expressed in the two Articles appeared in 2006 (2) KLT Journal page 86 under the head “Lok Sabha Speaker and Parliament” by Sri. V. Bhaskaran Nambiar, former Judge of Kerala High Court and the reply Article vide 2006(2) KLT-Journal page 129 by Sri. K.Ramakumar, Advocate, the matter relates to the powers and privileges vested in the Parliament for expulsion of its Members for alleged receipt of bribe as ‘cash for question hour’ and the scope of immunity available to the Parliament from judicial intervention. The refusal by the Speaker, Lok Sabha to accept notices issued by the Supreme Court in the Writ Petitions filed by the aggrieved members challenging the expulsion proceedings of Parliament triggered a new tug-of-war between the Judiciary and the Parliament attracting extensive public interest in recent times. The view taken in the Article that there is no express power of expulsion of a Member conferred on the House is not in dispute. However, the view expressed by Sri. V.Bhaskaran Nambiar, learned retired Judge, in the Article that provisions seem to indicate that at present there is no much power impliedly conferred on the House (authorising expulsion of its Members) does not appear to be sustainable, when examined carefully with reference to the relevant provisions in the Constitution and leading decisions of the Constitution Bench of the Supreme Court interpreting the scope and extent of the power and privileges of the Parliament.
The Indian Constitution recognised in principle certain privileges of Legislatures, following example of the House of Commons in England, which possess the oldest privileges of Legislatures in the world. However, our Constitution does not exhaustively enumerate privileges of the Legislature but only mentions few of them and for the rest of salient concept of legislative privileges, the Constitution virtually recognised those practised by the House of Commons as on the date of commencement of our Constitution. Article 105(3) of the Constitution originally provided that powers and privileges of each House of Parliament and Members and Committees of each House shall be such as may from time to time be defined by law and until so defined, shall be those of the House of Commons of the Parliament of United Kingdom and of its Members and Committees at the time of commencement of the Constitution.
Article 105 underwent an amendment in 1976 vide S.21 of the Amendment Act of the Constitution, which was later repealed by the Forty Fourth Amendment Act, 1978, restoring the original clause (3) of Article 105. The effect of the Amendment is that the existing privileges of the Parliament shall continue on the analogy with those of the House of Commons, until replaced by privileges defined by law (No such law has been passed by the Parliament so far).
The expulsion of Members were admittedly carried out by the Parliament on the strength of the recommendation of the Eithics Committee of the House on ground of proved misconduct of the Members committed in the course of discharge of Parliament business. Whether misconduct or allegations against a Member amounts to breach of privileges of the House is a matter to be decided by the House itself vide M.S.M. Sarma v. Srikrishna Sinha - reported in AIR 1959 SC 395 (Search Light ‘Case’), Here the issue is not one of disqualification, as correctly opined by learned Advocate Sri. K. Ramakumar in his reply article 2006 (2) KLT Journal P. 129.
Explusion of a member by the Parliament results in the termination of his Membership and consequent vacancy of his seat which is to be filled up by election. That being so, the question of settlement of any dispute regarding disqualification of a member under Article 103, by the President, or of the existence or otherwise of any law passed by the House inserting explusion as an additional ground for disqualification in Article 102(1) does not arise here as a relevant matter for discussion.
The exclusive power of Parliament to award punishment to a wrong - doer or on an erring Member for breach of privilege or contempt of the House is beyond dispute. However, Constitution does not provide for classification of various types of breach of privileges or contempt for imposing any scheduled punishment by Parliament or Legislature. Parliament is the sole authority to decide the quantum of punishment for its members held liable for the charges of misconduct or breach of privileges, which may extend to expulsion from the House or other lesser punishment in its discretion, depending on gravity of the wrong committed. There can be no basis for the contention as raised by the learned Retired Judge, Sri. V. Bhaskaran Nambiar that punishment of a member for breach of privilege or contempt of the House shall ‘stop short’ of expulsion from the Membership.
The House is the Supreme authority to regulate its internal proceedings and to decide all matters arising in connection with the conduct of Parliamentary business. See the leading decision in Bradlaugh v. Gazzel - 12QBD, 271. Bradlaugh’s case, challenging the action of the Seargent - at - arms of House of Commons preventing his entry into the House, was dismissed by the Queen’s Bench, holding that House of Commons could not be controlled by courts in all matters arising within its precincts. In India, Constitution provides for immunity for the proceedings of the Parliament from being challenged in courts on ground of procedural irregularities. See Article 122(1) - Members and Officers of Parliament empowered for regulating procedure or conduct of Parliamentary business are exempted from jurisdiction of any court. See Article 122(2).
Judicial review on the Constitutional validity of the proceedings of Parliament to punish or expel its Members and adjudication by the Constitution Bench of the Supreme Court on connected/incidental issues as opined by Sri. V.Bhaskaran Nambiar, learned retired Judge cannot, in my view, effectively solve the problems arising out of Judiciary - Legislature controversies. This is evident from the conflicting views and judicial interpretations of the Constitution Bench and larger Bench decisions of the Supreme Court in leading and sensational cases relating to the subject. The principles laid down by the Constitution Bench of the Supreme Court in ‘Search Light Case’ (supra) emphasising the significance of the powers, and immunity conferred on the Legislature in dealing with breach of its privileges, is seen almost twisted or sidetracked by Supreme Court in the majority opinion of a larger Bench in the matter of Reference under Art.143(1) of the Constitution in Kesava Singh’s case (AIR 1965 SC.745). In ‘Search Light Case’, the Supreme Court held that any denial of powers, privileges and immunity vested in the House on an anology with those of the House of Commons, at the time of commencement of the Constitution, tantamounts to re-making of the Constitution and not an interpretation of it. It was also laid down that provisions of Articles 105(3) and 194(3) are constitutional laws, not ordinary laws and thus they are as supreme as provisions relating to Fundamental rights in Part-Il. In other words, infringment of fundamental rights cannot be recognised as a plea against invoking breach of privileges or contempt proceedings initiated by Legislature, The decisions of Supreme Court in the Reference matter does not tender any opinion as regards fundamental rights in general, except specifically restricting the principles laid down in ‘Search Light Case’ to Art.19(1)(a) alone. The Larger Bench also upheld the jurisdiction of the High Court under Art.226 to issue writ of Habeas Corpus against any authority, including the Legislature and clarified that Art. 212 does not operate as a limitation of courts to testify the legality of any action of Legislature.
It is interesting to note that the Allahabad High Court, while dismissing on merits the Writ Petition filed by Kesava Singh, vide Kesava Singh v. Speaker, Legislative Assembly U.P. & Ors. AIR 1965 All. 349), largely followed dictums laid down by the Constitution Bench of the Supreme Court in ‘Search Light case’ in preference to the larger Bench findings of the Supreme Court rendered in the above Reference matter (supra). The Allahabad High Court held that Legislature is the sole Judge and master of its own procedure to decide whether breach of privileges or contempt of the House has been committed by any person and thus negatived the jurisdiction of the High Court to sit in judgment over the legal or constitutional validity of the contempt proceedings initiated by the Legislature. This decision of the Allahabad High Court is really in striking contrast with the finding of the larger Bench of the Supreme Court in the Reference Matter, upholding the jurisdiction and authority of the High Court in issuing writs or other orders, against proceedings or actions by Legislatures. The Advisory opinion of Supreme Court, not being a judgment coming within the purview of Art.141 of the Constitution, cannot be taken as a touch-stone to examine the correctness or otherwise of the said judgment of the Allahabad High Court.
A short comment on the legal proposition stated by learned Advocate Sri. K. Ramakumar in his reply Article. The proposition that Articles 121 and 122 when read together evolve a code of conduct for mutual respect (between the Legislature and Judiciary) and one agency cannot entrench upon areas ear-marked for the other, is only a theoretical one. See the majority decision of the Supreme Court in Kesavananda Bharathy v. State of Kerala (AIR. 1973 SC 1461) which upheld the power of Parliament to amend each and every Article of the Constitution, so long as the basic elements of Constitutional structure are not abrogated nor denuded of their identity. Sikri C.J. pointed out five items, consisting of the basic structure of the Constitution, which are beyond the amending power of Parliament under Article 368. It is also clarified in the judgment that the items listed as the basic structure of the Constitution are only ‘illustrative’ and not ‘exhaustive’ which would mean that the Judges can at will add whatever they feel to be part of the basic elements of the constitutional structure and declare any amendments of Constitution as unconstitutional and invalid, if the Judges feel that the amendment would ‘abrogate’ or ‘emasculate’ the basic structure and frame-work of the Constitution. The decision of the larger Bench of the Supreme Court in Kesavananda Bharathy’s case clearly indicate that the court, in effect, trenched upon the Legislative domain of Parliament and re-stated Parliament’s power under Art.368 to amend the Constitution, introducing pre-conditions for validity of such amendment, in a manner not contemplated by the Constitution.
As regarding the controversial question under discussion, I too share the views of learned Advocate Sri. K. Ramakumar that Speaker of Lokha Sabha Sri. Somanath Chatterji is perfectly right when he took the stand that the issue (Power of Parliament expelling its erring Members) is beyond jurisdiction of courts.
The question of Legislative - Judiciary confrontations did not subside with the Advisory opinion rendered by Supreme Court in the matter of Reference in Kesava Singh’s issue (supra), The possibilities of such controversies, sometimes leading to constitutional stalemate in future, cannot be ruled out altogether.