Reservation and its Inner Scenes

(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)

The inspiration to write up the article flowed after reading down the article of Honourable Justice K.R Radhakrishna Menon penned up in 2006 (3) KLT page 49 (Journal part). In every society which has economic and social inequalities and which cannot provide education and employment to all, the problem of reservation must and does arise. Neither the most developed and prosperous country like America nor an under developed country like India can escape it. Only a country with a planned and rational structure of society can provide education and employment to all. Hence a permanent solution to the problem of reservation is the establishment of a society with a rational, economic and social structure. Unless both the protagonists and antagonists of reservation grasp this fundamental truth and unite to create such society, the problem of reservation will remain with us forever festering dissension, strife and violence imperilling the unity and stability of the country and regarding its progress and development. The ludicruous nature of the agitation on the issue becomes apparent when one realises that as against the teeming millions of aspirants for higher education and jobs every year, a niggardly number of seats in educational institutions and jobs in the public sector are available. The proportion of the available seats and the jobs is growing more and more unfavorable to the aspirants every year with the ascending rate of growth in population and proportionally decreasing rate of growth in the educational and employment opportunities. In this state of affairs even if all the educational and employment facilities available at any particular time were either reserved, it will not solve the problem of more than an insignificant number of needy ones on either side. The reservation by its very nature implies making provision for one needy while denying it to another. The battle is between those in need. The essence of the problem of reservation lies in deciding who among the needy should be the gainer, or to put it the otherway, who should go without the satisfaction of his need.

Economic rights are the bedrock of Human rights. Right to work and education are the basic economic rights. They alone enable an individual to live and develop as a human being and to participate in the affairs of the society as an effective member thereof. Every citizen is therefore entitled to employment and education according to his capacity . A society which cannot provide them to all its members is an unscientifically and irrationally organised society. It cannot even be called civilized whatever the strides it may make in other fields. In an unequitable society such as ours, some are always provided for and advanced, while others are deprived and backward. In addition to the economic factors, the uneven development may also be on account of irrational prejudices of race, religion, caste, colour, language, or other social disabilities. It becomes therefore necessary to lift the backward to the level of the forward by devising various methods one such device is to keep reserved some educational seats and or jobs for those who cannot compete with others on account of their backwardness. When the backwardness is of a group as a whole the reservation is kept for the individual as a member of the group, if for no other reason, at least for the purpose of easy identification of his backwardness. However the object is the upliftment of the group as such.

There are of course types and degrees of backwardness. Some are backward only economically while others are backward educationally as well as socially. Although economic backwardness is at the root of social and educational backwardness, in this country the peculiar caste system has added a new dimension to the problem. On account of the caste taboo, educational and social advancement was denied even to the economically sound. The scheduled caste and scheduled Tribes are therefore backward in all respects. Among the backward, further, the levels of backwardness vary. Even among the scheduled castes and Tribes some are more backward than others. Hence it stands to reason that those who are backward in all respects such as the scheduled castes and Tribes should get preference over others and those among the Scheduled Castes and Tribes who are more backward should get priority over those who are less backward. It is also consistent with this principle that those who are advanced, even if they nominally belong to the backward groups, should get no share in the reserved seats.

The acceptance of caste as the basis of reservation does lead to the accentuation of the caste distinctions in the short run. However, it must be remembered that castes are not a modern phenomena nor are they created by reservations. They will also not disappear if the reservations are done away with. The caste will disappear only if there are inter caste marriages. The inter caste marriage will take place as a matter of course only if all the castes are brought on the same cultural level. This will not happen unless they are first brought on the same educational and economic level. Even today in the same caste whether forward or backward, marriage takes place only between the individuals who are on the same cultural level. The reservation on the basis of caste is a mode of raising the cultural level of the low castes to that of the higher castes.

A fear is often expressed that during the transitional period, the level of efficiency in all fields may be lowered since merit will have to be sacrificed. It is necessary to consider this aspects more closely and dispassionately. To begin with, what do we understand by merit ? Generally we decide the merits of a candidate on the basis of the marks he obtains either in the written or oral tests. These tests have however several inherent infirmities. Apart from the malpractices which are resorted to in these tests for securing the maximum marks, it is difficult to accept these tests as suitable methods for discovering either the required aptitude or talent. At best they are rough and ready gropes for the purpose. In subjective examinations these tests run haywire. The markings depend upon the individual examiner’s attitude, notions and methods some examiners are liberal while others are conservatives in giving marks. Hence, it has to be acknowledged that mere marks are no indication of the suitability of a candidate for a particular profession or job.

The problem of determining the suitability of a candidate to take up a particular job or education is also linked up with the question of fixing the minimum marks that he must obtain in the qualifying test. At present, we do witness a spectacle that admissions to certain courses or jobs are closed at as high a percentage as suppose eighty. Is it suggested that those who get say 79 percentage or 60 percent marks are unsuitable or unqualified to take up the job or the course concerned ? Where do we then fix the minimum qualifying marks? It is common knowledge that the marks earned in a particular examination depend upon several factors and particularly the circumstance under which the candidate is placed at the particular point of time. We have with us the well known example of Dr. Ambedker, to take only one out of many. He had scored only about 37% marks in his matriculation examination. However he proved to be a giant of an intellectual in his later life. If he were to be denied admission to higher education on the ground of his poor scoring in the matriculation examination, the country would have been poorer in many respects. On the other hand, it is also a fact that some of those score higher marks in their examinations fail in their later life for efficiency in jobs or the proficiency in a profession, which does not depend upon the marks obtained in examinations. Hence the qualifying marks should never be unreasonably high. The merit in the examination should be distinguished from the merit for the job or the course as the case may be.

Thus the remedy therefore is to create enough educational seats and jobs to go round for all and not to adopt, one or the other criteria for reservation. The poor will always be at a disadvantage and the poor in the low castes at a greater disadvantage. However, the establishment of a society where education and employment will be available to all those who are in need is a distant goal and will take a long time to realise. During the transitional period it is necessary to accept the claim of those who are more unfortunate than others and prepare a scheme which, while doing real justice to the more deprived. It will also remove some of the present irritants and prove beneficial to the society as a whole in the long run. The scheme should keep in pace with the following aspects. 

A. There need not and should be no reservation in the teaching profession. Reservation in the teaching profession is to the disadvantage of the reserved classes themselves. Those from the higher classes do not have to depend only on the tuitions given in the schools and colleges. They receive and can receive education at home and else where as well. These other facilities are not available to the members of the reserved classes for want of tradition of learning and funds.

B. In the reserved classes there are sub classes (or castes) of varying degree of backwardness. The members of the lower class or caste among the backward classes should be preferred to the member of the higher class or caste.

C. Members of the reserved classes should be given all the facilities of education free of charge. In addition, special efforts should be made to bring them to the level of the members of the higher classes.

D. The object of reservation is to bring the lower castes to the level of the higher castes or classes. Hence those who are advanced should not get the benefit of reservation even if they belong to the reserved classes. So also the children of those who have availed of reservation once, should be denied its benefit. To give the benefits to them is to operate the reservations only for the advantage of certain families.

E. In view of the purpose of the reservation it is arbitrary to prescribe any time limit for the end of reservation in terms of years. The reservation should end only when the low castes attain the level of high caste.

F. A review should therefore be made at regular intervals of the backwardness of reserved classes and the classes which have advanced should be deleted from the reserved classes or the proportion of reservation to them should be curtailed suitably.

Confessions in police custody, a fresh look

(By B.G. Harindranath, District Judge & M.A.C.T., Pala)

In the spring of 1628 in a house in Portsmouth in England George Villiers, Duke of Buckingham, and Lord High Admiral of England, was stabbed to death by John Felton, a naval officer. He was the intimate friend of the new King Charles I. A distressed King asked the Judges whether Felton could be put to the rack to discover his partners in crime. All the Judges met in Sergeants’ Inn. Many years later Blackstone recorded their historic verdict.

“The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England”.

Never again was the use of torture permitted by the Judges in England to haul out declarations of guilt. The use of torture is contemptible. When judicial torture was usual all over Europe, enlightened well-known writers such as Voltaire andBeccaria admired its denunciation by the common law of England. English law forbids the prosecution from giving evidence in a criminal proceeding of a confession made by a defendant unless it proves beyond reasonable doubt that the confession had not been obtained by oppression of the person who made it. The Evidence Act of 1872 incorporated this salutary principle of English law. Under S.24 confessions obtained by threats or promises of any kind are inadmissible.

The law of evidence in British India went a good deal further. Confession to the police officer was made inadmissible under S.25 of the Act. Under S.26 no confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, can be proved as against such person. There were obvious reasons for enacting sections 25 and 26 in the Evidence Act. Conduct of the police in India was found reprehensible and they were often accused of extracting confessions by inducement, undue influence, torture, and oppression. First Report of the Indian Law Commission given over 150 years ago contained scathing criticism of abuse of powers by the police officers in India, which was the basis for introducing Ss. 25 and 26 in the Evidence Act in 1872.

A silver lining: The total exclusion of evidence of confessions made to police officers hampers investigation and consequently is an impediment to the administration of justice. To obviate this barrier Sir James Stephen, a Jurist of eminence, introduced a silver lining in the Evidence Act in the form of S.27. The elementary premise upon which confessions become inadmissible is that when made under certain setting they are not to be relied on as testimonial utterances but if facts surface, which indicate that the law’s apprehension of undependability is baseless, and the unseemly inducement exercised no disquieting sway, then the confession should be accepted. This is the theory of Conformation by Subsequent Facts. So much of the involuntary statement as relates distinctly to the material evidence, which becomes known because of such a statement was made admissible under S.27.

The principle embodied in S.21 was first seen enunciated in R. v. Warrickshall (1783) 1 Leach 263. The accused in that case made a confession, which was not receivable, as it was due to promise of favour. Based on the confession made by the accused, the goods stolen were found concealed in a mattress. It was contended that the evidence of the finding of the articles should not be admitted. Nares, J. with Mr. Baron Eye observed:

“It is a mistaken notion that the evidence of confessions and facts which have been obtained from prisoners by promises or threats, is to be rejected from a regard to public faith; no such rule ever prevailed. The idea is novel in theory, and would be dangerous in practice as it is repugnant to the general principles of criminal law. Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit... This principle respecting confessions has no application whatever as to the admission or rejection of facts. Whether the knowledge of them be obtained in consequence of an extorted confession, or whether it arises from any other source; for a fact, if it exists at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true or false”.

Two years later, (in 1785) this principle was applied in R v. Lockhart ((1785) 1 Leach 386: 168 ER 295), where the prisoner was accused of stealing jewels. He confessed to the theft and said that he gave the jewels to one G. The confession being improperly obtained was not admitted, but it was held that G could depose that he got the jewels from the prisoner. S.21 is framed as an exception to Ss. 24-26 and not to S. 26 alone (State of U.P. v. Deoman Upadhyaya AIR 1960 S C 1125.). The words of the section were taken bodily from R. v. Lockhart (Per Hidayattulla J. as his Lordship then was in Deoman Upadhyaya.). The history of case law on the subject matter of confessions under S.27 unfolded many views, which were at variance. The difference of opinion was principally on the meaning that could be assigned to the word fact discovered which is mentioned twice in the section. Whether the discovery of fact referred to in S.27, are the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things concrete or non-concrete. The other controversy was on the point concerning the extent of admissibility of the disclosure statement.

The fact discovered: One of the earliest reported decisions on the interpretation of S.27 is the vintage decision of the Full Bench of the Allahabad High Court in Queen Empress v. Babu Lal((1884, Indian Decisions, 6 Allahabad 510).) Mahamood, J. adverted to the passage in Taylor’s treatise on the Law of Evidence, which is as follows:

"When, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner’s statement about his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found, but it would not, in such a case of a confession improperly obtained, be competent to inquire whether he confessed that he had concealed it there. So much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least of the statement cannot have been false.”

The Full Bench judgment of seven Judges in Sukhan v. Emperor (ILR Vol. X Lahore 283 AIR 1929 Lahore 344) made a through end-to-end elucidation of the law on the subject. Shadi Lal, C.J, as he then was, speaking for the majority pointed out that the expression ‘fact’ as defined by S.3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious, that it is in the former sense that the word is used in S.27 and that the phrase ‘fact discovered’ used by the Legislature refers to a material and not to a mental fact. In Ganuchandra v. Emperor  (AIR 1932 Bombay 286) Beaumont, C.J. as he then was, speaking for the Division Bench of the Bombay High Court agreed with the view of Shadi Lal, C.J. in Sukhan’s case. A contrary view was expressed in Emperor v. Ramanuja Ayyangar(AIR 1935 Mad. 528). A Full Bench of three Judges of The High Court of Madras by a majority held that the statement of the accused “I purchased the mattress from this shop and it was this woman (another witness) that carried the mattress” as proved by the witness who visited him with the police was admissible. It was held in Ramanuja Ayyangar that the word ‘fact’ is not restricted to something, which can be exhibited as a material object. That judgement was rendered before the inimitable decision in Pulukuri Kottayya v. Emperor (AIR 1947 PC 67: 1947 Cri LJ 533). The lucid exposition of the expression ‘fact discovered’ in the in the words of Sir John Beaumont, quoted below followed this passage:

“The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from the place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.”

However, correctness of the view propounded in Ramanuja Ayyangar did not come up for the consideration of the Privy Council in Pulukuri Kottayya. Two single Benches of the Madras High Court in Public Prosecutor v. India China Lingiah & Ors (AIR 1954 Mad. 333; 74 India Appeals p. 65 (1)), and in re Vellingiri(AIR 1950 Mad. 613) took the view that the information by an accused leading to the discovery of a witness to whom he had given stolen articles is a discovery of a fact within the meaning of S.27. The Hon’ble Supreme Court in Himachal Pradesh Administration v. Shri Om Prakash ((1972) 2 SCR 765; (19720 1 SCC 247; AIR 1972 SC 975) specifically overruled Ramanuja Ayyangar’s case and the judgments that concurred with the dictum laid therein. It was observed in Om Prakash thus:

" The concealment of the fact, which is not known to the police, is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen’ ‘property or other in eliminating article is not hidden sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished by the accused... A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible".                                                                        (Emphasis supplied)

In the Parliament attack case (State (N.C.T. of  Delhi) v. Navajot Sandhu Afsan Guru (2005) INSC 373) the Hon’ble Supreme Court reiterated the dictum enunciated in Om Prakash. It is now fairly settled that the fact discovered encompasses not only the object thereby recovered but the place of its concealment from which the object is produced and the knowledge of the accused as to this, but not a purely intangible fact sans recovery of a concrete fact.

How much of information received from accused may be proved.The section starts with a proviso and its heading reads ‘how much of information received from accused may be proved’ The celebrated decision of the Privy Council in Pulukuri Kottayya v. Emperor(AIR 1947 PC 67 : 1947 Cri LJ 533) described as a locus classicus, set at rest the controversy that centred round this aspect. The authority of Privy Council’s decision was never questioned in any of the decisions of the highest Court either in the pre or post independence era. Right from 1950s, until the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by Judges (State (N.C.T. of Delhi) v. Navajot Sandhu Afsan Guru (2005) INSC 373).

The accused in Sukhan v. Emperor   (ILR Vol. X Lahore 283/ AIR 1929 Lahore 344) was convicted under S. 302 for having committed the murder of a six year-old boy. The dead body of the child was taken out of a well. The silver karas (ornament) worn by the child was missing. Based on the information given by the accused to the investigating officer, karas was recovered. The statement said to have been made by the accused is in the following words: “I had removed the karas, pushed the boy into the well and had pledged the karas with Alladin”. The Sessions Judge who tried the case admitted the whole statement. On a reference made by the Division Bench, a bench of seven Judges of the High Court of Lahore held that the confessional statement of the accused that he had pushed the boy into the well is clearly not admissible as it had no connection with the possession of karas by Alladin. That part of the information that related to the pledge of ornaments to Alladin alone was held admissible. Shadi Lal, C.J. speaking for the majority observed thus:

“The information and the fact should be connected with each other as cause and effect. If any portion of the information does not satisfy this test, it should be excluded. The information must “relate distinctly” to the fact discovered. The word “relate” means to “have reference to” or “to connect” and the word “distinctly” means clearly, unmistakably, decidedly or indubitably. To put it in a different language, the information must be clearly connected with the fact.” Anything, which is not connected with the fact as its cause, or is connected with it, not as its immediate or direct cause, but as its remote cause, does not come within the ambit of the section and should be excluded.”

The Bombay High Court in Ganuchandra v. Emperor  (AIR 1932 Bombay 286) accepted the view propounded in Sukhan. The High Court of Madras in Athappa Goundan v. Emperor  (AIR 1937 Madras 618 ILR 1937 Madras 695) took a different view and held that even the inculpatory part was admissible. The Privy Council in Pulukuri Kottayya upheld the judgements of the Lahore and Bombay High Courts, and did not accept the contrary view taken by the Madras High Court.

In, Pulukuri Kottayya Sub Inspector reduced into writing the confession of the accused made in the following terms:“About 14 days ago I Kotayya and people of my party lay in wait for Sivayya and others... We all beat Beddupati China Sivayya and Subayya, to death... Dondapati Ramayya had a spear in his hands. He gave it to me then I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.” The Privy Council held that the whole of that statement except the passage “I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come” is inadmissible. The Privy Council also held mat the evidence of the witness, Potla China Mattayya proving the document containing the statement that 6th accused said, “I Mattayya and others went to the corner of the tank-land. We killed Sivayya and Subayya” must be omitted. The following passage by Sir John Beaumont contains the articulate elucidation of the law on the subject.

“In their Lordships’ view it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house”does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added”, with which I stabbed A “ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant”.                                          (Emphasis supplied)

The suggested amendment to S.27: The Law Commission in its 185th report recommended a significant amendment to S.27 having far reaching consequences. Before making the recommendations threadbare study of almost all the authority on the aspect were meticulously analysed. The Law Commission’s 185th report recommended that S.27 be amended by restricting the admissibility to ‘facts discovered’ rather than ‘so much’ of the statement. The new suggested S.27 reads thus:

"Notwithstanding anything to the contrary contained in Sections 24 to 26, when any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a police officer, the fact so discovered may be proved, but not the information, whether it amounts to a confession or not: Provided that facts so discovered by using any threat, coercion, violence or torture shall not be provable.”

The proposed amendment interdicts the courts from receiving in evidence the information supplied by the accused to the investigating officer whereas the fruits of such information namely the recovery of the object pursuant to such information is admissible. This is a major departure from the from the recommendations in the Law Commission’s 69th Report, which suggested that discoveries made pursuant to statements falling under S.24 alone should be excluded. It was felt that in case they are made admissible, police might indulge in threats, inducements and promises for extracting confessions. However, the proposal in the 152nd Report was for repeal of S. 27 altogether with which the 185th report disagreed.

Under English law, confessions have been made admissible under the Police and Criminal Evidence Act, 1984 and under S.76(1) of that Act; the confession is made relevant unless it is liable to be excluded under the section. Under the provisions when there is an allegation of extortion of confession by illegal means by the investigating agency, prosecution has to lead evidence and prove the absence of use of illegal means. Therefore, it is said that in England, there is today, a trial within a trial where the court examines whether the confessions have been obtained by the prosecution by oppression, including torture, inhuman or degrading treatment of the accused or not.

Section 27 is primarily concerned with the admissibility of the information given by an accused in police custody. The information would consist of a statement made by the accused to the police officer. If the police officer wants to prove the information or a part thereof, the Court would have to consider whether it relates distinctly to the fact thereby discovered and allow the proof thereof only if that condition was satisfied. If however the police officer does not want to prove the information or any part thereof, S. 27 does not come into operation at all.

In Ramkishan Mithanlal Sharma v. State of Bombay (AIR 1955 SC 104) the evidence of the Investigating Officer, was that “on a certain day the 1st accused made a certain statement in consequence of which he took the 1st and 2nd accused to Itawa and leaving the 2nd accused there the party proceeded to Bhagwasi with the 1st accused and that the 1st accused there pointed out Baliram who at the instance of 1st accused dug out from a mud house a tin box containing three revolvers and two tins containing live cartridge’s”.Hon’ble Supreme Court in Ramkishan Mithanlal Sharma held that the statement of the Investigating Officer was admissible in evidence against the first accused without attracting the operation of S. 27 of the Evidence Act. Hence, even if S.27 is deleted, the prosecution in India can prove ‘the fruits of the confession’ made known during the questioning of the accused without proving the information. When contemporary notions test such an old and timeworn rule, the source of the rule must be found. The incorporation of the suggested amendment would amount to the total obliteration of a provision that remained in the law of evidence for over two centuries.

The theory of conformation by subsequent facts has been in vogue ever since there has been any doctrine about excluding confessions. The information given by the accused comes from the innards of his mind leading to the discovery of facts, of which the prosecution may have no inkling until then. When that is excluded, a vital evidence which connects the accused with the crime evanesces from the armoury of the prosecution which even otherwise in our country is an emaciated one. There can ordinarily be no surer proof of the reliability of an involuntary statement than the finding of concrete evidence as a direct result of it. Besides this, there is a conspicuous anomaly in treating an involuntary statement as inadmissible while treating as admissible the real evidence, which would never have come to light but for the involuntary statement.

Coca Cola judgment : A case for introspection

(By Kaleeswaram Raj, Advocate)

The debacle suffered by the Kerala Government in Coca Cola case* should be an eye opener to the Executive and the Legislature. In the State, very often the policy decisions are not made after necessary home works and due deliberations. The statute on Self Financing Professional Colleges is an illustrative case. The Government order banning Coca Cola and Pepsi is yet another example.

The Government promulgated the order dated 10.8.2006 which was followed by another order dated 11.8.2006 issued by the Director of Health Services. Strangely, only two brands i.e. Coca Cola and Pepsi were banned. Other products were untouched. The companies challenged the order. The Division Bench of the Kerala High Court upheld the challenge and quashed the impugned orders.

The judgment was just legal. The point was simple-Whether the State had power to ban the products, on permanent basis even on the ground of adulteration. Food adulteration is item No.8 in the concurrent list. But there is a Central Statute, namely Prevention of Food Adulteration Act, 1954, governing the field. Therefore, the essential power vests with the Central Government, vide S.23 of the Act. Only residuary rule making power vests with the State Government. That is to say, the State Government cannot frame rules in the areas occupied by the Central Government. Again, by virtue of S.7 of the said Act also, power is vested with the Central Government. This position was clarified and explained by the Supreme Court in a relatively recent decision in Godawat Pan Masala case (2004). The Division Bench in para 15 of the judgment referred to the Supreme Court judgment and observed :- “S.7 (iv) of the Act is not an independent source of power for the State Government. This proposition of law, it appears was not known to the state, when impugned orders were passed”. The court further held that at the maximum, violation of S.7 “can lead to prosecution, but not to ban on sale as such”. The bench quoted the judgment of the Apex Court in extenso and held that “in view of the authoritative pronouncement of the Supreme Court in Godawat Pan Masala case, there is hardly anything which survives for consideration”. The Bench also held that in the impugned orders principles of natural justice were violated as no notice was issued to the companies. 

Coca cola case thus demonstrates the failure of the Executive and Legislature in formulating and implementing comprehensive water, environmental and health policy. There is hardly any legal research in the State. At the same time the amount spent by the State on litigation is enormous. There is a strong case for introspection in the coca cola debacle. 

First of all, the Government should have an economic and political strategy on land, ground water, agriculture, environment and public health. It should be translated into a comprehensive legislation. Ban on cola (of all brands) should not be on the solitary ground of adulteration. The statute should overcome the narrow compass of this minor penal Act. The objects of the prohibition should be- (a) conservation of land from chemical pollutants, (b) control of plastic wastes (c) preservation of ground water, (d) propagation of traditional drinks like tender coconut, water melon etc. (e) economic upliftment of coconut farmers by finding out domestic market for tender coconuts.

A comprehensive ground water policy is the need of the hour. Studies have shown that against the fresh water requirement of about 21,000 million cubic meters in Kerala during summer season only 14,000 million cubic meters is available, approximately. For the deficit, people depend upon the ground water. Land, Agriculture, public health and water including ground water come under the State list under Schedule 7 of the Constitution. No one can challenge the authority of the State Government in these areas. What is required is a legislative activism on the basis of thorough research, both scientific and legal, and a political will to implement it.

National Judicial Council -- A Welcome Move Towards Judicial Accountability

(By Pauly Mathew Muricken, Advocate, High Court of Kerala)

The decision of the Central Government to introduce Judges (Inquiry) Bill in the winter session of the Parliament to set up National Judicial Council to monitor the performance of the members of the higher Judiciary and to redress the grievances of the common man against the conduct of the Judges can be seen as a laudable attempt to ensure judicial accountability and responsibility. The Council as now proposed by the Bill although has no power in respect of appointment of Judges, still it would serve as an inhouse mechanism for redressing the grievances of the public against the conduct of Judges.

Judges under our Constitutional Scheme have been enjoying an enviable position with blanket immunity in respect of their deeds, with only through impeachment process leading to their removal. This treatment was extended to them as part of their individual or personal independence. Security of tenure, protection in the form of judicial immunity from civil proceedings, immunity from being summoned to testify about judicial decisions, judicial control over discipline of Judges, etc. were treated as part of personal independence of the Judges. This at least in some cases has paved the way for judicial anarchy by few misusing this blanket protection. This is mainly on account of absence of any effective mechanism to monitor their performance and functioning.

The impeachment process as envisaged in the Constitution is a cumbersome and onerous procedure, as it requires two third majority of the total membership of each house of Parliament and further requires that the motion for impeachment of a member of the higher judiciary should be proposed and signed by a minimum of not less than 100 members of the Lok Sabha and minimum of not less than 50 members of the Rajya Sabha. In view of such stringent procedural formalities, so far no impeachment motion has ultimately succeeded paving the way for the removal of a Judge, although in the past there have been few instances of serious allegations raised against the conduct and functioning of Judges. This is also evident from the impeachment move made against Justice Ramaswamy, which ultimately did not materialize.

Ever since the Constitution of India has come into force, there has not been a single instance of the impeachment move having succeeded. The Constitutional provision to that extent remains as a deadletter. It is in the above background of facts that the proposed Judges (Inquiry) Bill intended to set up a National Judicial Council, a five member forum, consisting of the Chief Justice of India as its Ex-officio Chairman, two Senior most Judges of the Supreme Court and two Chief Justices of the High Court nominated by the Chief Justice of India, as its members assumes significance.

Judicial accountability is a constitutional vision intended to usher the confidence of the general public in the institution of justice. In a democratic system of Government, it is of the highest importance to the people at large who may have to seek redress in the last resort in courts of law against any illegal acts or the high-handed exercise of power by the executive. A Judge accountable should be subject to the law, Constitution, reason and conscience. Equally, Judges in their functioning should be able to instill confidence in the public by way of their impartial judgments and disciplined conduct. Judges, no doubt, will have to swim according to their conscience to uphold the Constitution. The Courts act for the people who have reposed confidence in them. The accountability of the Judges should therefore be to their conscience and ultimately to WE THE PEOPLE OF INDIA in whom the ultimate sovereignty vests. Judges are the servants of law and that they function for the society and therefore they are accountable to it.

The quality of justice in a justice delivery system depends on the quality, integrity, character, training and outlook of the persons who adorn the seats at the altar of justice. Persons selected for this high office must be men of sterling character, impeccable integrity, upright behaviour and learning and they must have the individual humility of a true “scholar who scorns delights and lives laborious days”. They must have clear vision of the social, political, and economic realities and demands of the time and proper understanding of the role, which the judiciary under the Constitution is expected to play, within the framework of Rule of Law. They should also be committed to the social philosophy of the Constitution. These elements in their own way contribute to Judicial independence and accountability and make the stream of Justice clean and pure.

In the past, we have witnessed certain disturbing trends, which have shaken the concept of Judicial accountability and transparency. Despite the recognition of the lofty ideal that an independent, impartial and fearless judiciary is the creed of the Constitution, such situations had arisen, evidently on account of the absence of effective mechanism and provisions for identifying the suitable persons to be considered for appointment and in the absence of an institutional mechanism to watch their performance.

The intention of the Constitution makers was to make the judiciary independent and accountable. Sufficient safeguards against political influence were therefore incorporated in the constitution itself. The confusion that prevailed in the matter of Judicial appointments was finally settled by the apex Court in Supreme Court Advocates on Record Association v. Union of India (AIR 1994 SC 268) by holding that the process of appointment of Judges is an integrated participatory consultative process and hence all the constitutional functionaries must perform their duty collectively so that no occasion for primacy arise.

Judicial independence and accountability by and large should be judged on the standpoints of its formation and functions. Appointment of Judges forms the major part of judicial formation. The appointment of Judges in a legal system is either by election, nomination or a combination of both. In the election method as prevalent in many States of America in respect of appointment to the Federal Courts, the selection of Judges is made by the people themselves. The other form of it is the selection by the legislature, which method is in vogue in some States of America and in Switzerland in the matter of appointment of Judges to the Federal Courts and Tribunals.

On a comparative study of the different modes of judicial appointments, it is discernible that appointment of Judges by nomination is the most popular method prevalent in most of the legal systems, with India standing as no exception. This method is the baby of the British legal system and consequently it survives in England and its erstwhile colonies, like India, Australia and Canada. This has also different forms like appointment by nomination made exclusively by the executive; jointly by the several organs of the government; by an independent judicial selection committee; and by higher judiciary in respect of the lower level judicial appointments. Amongst these different forms of appointment by nomination, appointment by an independent judicial selection committee is appreciated as the salutary model befitting the requirements of judicial independence and accountability, as it has the relative advantage of eliminating the entry of unsuited candidates from occupying the high seats of justice. The system followed in Israel is known for ensuring both judicial independence and accountability. It follows the practice of judicial appointments by an appointment committee comprising of 9 members, of which three are Judges of the Supreme Court, two are lawyers elected by the Bar Association, two are members of the Knesset and the remaining two are ministers of the Government, of whom one is the Minister of Justice who acts as the chairman of the selection committee. This method represents the participation of all decisive segments in the judicial appointment process. 

In France, the President appoints the Judges whose names are submitted to him by a body known as the Superior Council of the Judiciary, with the president as its ex-officio Chairman, Minister of Justice as its Vice-Chairman. It has also two Judges and Advocate General of the Supreme Court, three Judges from other Courts, a member of the Council of States and two members of the general public as its members. The Council also exercises disciplinary control over judicial officers. 

To safeguard independence of the judiciary and to ensure judicial accountability, fundamental changes have to be made in the appointment process of Judges, bearing in mind that they are not ordinary institutions, but constitutional institutional mechanisms assigned with a special role to act as the watchdog of the constitution and protector of the rights and liberties of the citizens. It is therefore desirable that the proposed National Judicial Council, be set up in line with the Superior Council of the Judiciary in France or Judicial Appointment Committee in Israel, armed with the power to evaluate the merit of those who qualify for appointment and to recommend to the President the persons to be appointed and to exercise disciplinary control over Judges. Such a Council should consist of Chief Justice of India as its Chairman and 4 senior most Judges of the Supreme Court and Union Minister for Law and Justice and Attorney General of India as its members for the Supreme Court appointments and for exercise of disciplinary control over them. For High Court appointments and for its disciplinary control, it should also include three senior most Judges of the particular High Court including the Chief Justice of the High Court, State Law Minister and Advocate General as its members. It is also desirable that such a body has two representatives of the Parliament elected jointly on the basis of proportional representation by means of single transferable vote or the representatives of the Parliamentary Committee on Justice Affairs to ensure the participation of the legislature in appointments and disciplinary control. Constitution should be amended without delay for enabling the President to make appointments to the higher judiciary and also to take all kinds of disciplinary action against them except removal, on the basis of the recommendations of the Council. Council should be empowered to prescribe code of conduct for Judges and to enforce the same. Rules should be framed prescribing the procedure to be adopted by the Council for making it functional in all respect to act as the final decision making body in the matter of higher judicial appointments and for exercise of disciplinary control. The procedure to be followed by the Council for entertaining and dealing with citizens’ complaints should be transparent. Government should make available all potential information when required by the Council for its effective functioning. This method also reflects the vision of the Constitution makers who did not wish to give absolute power of Judicial appointments or control either to the executive or to the Judiciary. This suggestion is also more or less in tune with the views of the Law Commission of India as expressed in its 125th report of the year 1987, wherein the Law Commission has recommended for the National Judicial Service Commission consisting of Chief Justice of India as its President, his immediate predecessor, three senior most Judges of the Supreme Court, Union Minister of Law and Justice, Attorney General of India and an outstanding Jurist to be nominated by the President of India to act as the final decision making body in respect of Judicial appointments and control.