What is the Pecuniary Value of Housewife’s Service?
By A.V.M. Salahuddeen (Kecheri), Advocate, H.C.
31/07/2020What is the Pecuniary Value of Housewife’s Service?
(By AVM Salahuddeen (Kecheri), Advocate, High Court of Kerala)
Yajurveda says -- ‘Jayedastam’ (Java = wife, Astam = home). Thousands of years ago, it had been declared in this single word that the wife is the home indeed. Housewife is a woman whose work is managing her family’s home by caring children, cooking, cleaning and washing etc., but she is not employed outside. Such woman is generally called stay-at-home mother. Webster’s dictionary defines a housewife as a married woman who is in charge of her household.
In India, it has been recognized by all sects of people that the gratuitous service rendered by wife with true love and affection to children and her husband and managing the household affairs cannot be equated with the service rendered by others. She is in the constant attendance of the family through the day and night unless she is employed. Perhaps, being a housewife mother deserves one of the best salaries in the world.
When a housewife dies in a motor accident, what will be the compensation to be awarded to her legal representatives for dependency? In such case, first of all the annual income of the deceased housewife is to be calculated for the purpose awarding compensation. It is pertinent to note that the estimation, by courts, of the value of service rendered to the house by housewives, appears to be grossly low while deciding the compensation cases. Normally the education or qualification of a mere housewife will not be taken into consideration for assessing her income for the purpose of awarding Compensation. Apart from that the escalation in the cost of living and inflation of money are also being ignored while calculating housewife’s income by the courts.
Recently the Honourable Supreme Court, in Rajendra Singh v. National Insurance Company Limited (2020 (4) KLT 6 (SC) fixed only ` 5000/- as the monthly income of a deceased
housewife following the decision reported in Arun Kumar Agrawal v. National Insurance Co. Ltd.,2010 (4) KLT 230 (SC) in which case the monthly income was taken `50,000/-. It is to be noted that the accident Rajendra Singh’scase took place in 2012 and that of Arun Kumar Agrawal’scase it Is long prior to 2012. Therefore the escalation in the cost of living and inflation of money are not at all taken into consideration while calculating housewife’s income by the Apex Court in Rajendra Singh’s.As a matter of fact, the fixation of the income of housewife in Arun Kumar Agrawal’scase itself is not proper, even though the Apex Court explicitly described the service of housewife going through various judicial decisions. While agreeing with judgment delivered by the Hon’ble Mr Justice G.S.Singhvi in Arun Kumar Agrawal’scase, the other judge, Hon’ble Mr. Justice Asok Kumar Ganguly has added His Lordship’s perception separately in that judgment. His Lordship has stated in para.26 of the judgment that “Household work performed by women throughout India is more than US$ 612.8 billion per year (Evangelical Social Action Forum and Health Bridge, page 17). We often forget that the time spent by women in doing household work as homemakers is the time which they can devote to paid work or to their education. This lack of sensitiveness and recognition of their work mainly contributes to women’s high rate of poverty and their consequential oppression in society, as well as various physical and psychological problems. The court and Tribunal should do well to factor these considerations in assessing compensation for housewives who are victims of road accident and quantifying the amount in the name of fixing just compensation”.
His Lordship Mr.Justice Asok Kumar Ganguly concluded his observation by reminding the legislature that time has come for rethinking for properly assessing the value of homemakers and householders work and suitably amending the provisions of Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and homemaker.
Even though the Motor Vehicles Act, 1988 was amended as per new Act No.32/2019 in the last year extensively, no provision was added or amended for fixation of income of spouse in spite of the directions contained the judgment reported in 2010 (4) KLT 230 (SC).
But instead of incorporating a provision for proper fixation of income of spouse in the new Act, the legislature deleted the earlier provision for fixation of income of spouse contained in the Second Schedule to Section 163A of old Act. It is true that our courts have glorified the service of housewives in their judgments, but such glorification is not reflected in the fixation of income of housewives for the purpose of compensation. Now the housewives are being equated with ‘coolies’ or ‘maid servants’ by the courts for the purpose of calculating income to award compensation for dependency. Such approach is improper and only a degradation to housewives. A housewife has to juggle multiple roles around the clock, and this she has to do 365 days in a year. The contribution made by the wife to the house is invaluable and cannot be computed in terms of money. However their notional income is to be calculated for the purpose of compensation. Every housewife’s monthly salary is considered by our courts even less than a maid who is working for few hours. In fact the pecuniary value of a housewife’s service is to be assessed considering the following aspects.
i) Status of family
ii) Educational qualification of housewife
iii)Income of the family
iv)Age of the house wife
v) Other skill works of housewife, if any
vi)Cost of living and inflation of money
As of now there is no provision in the amended Motor Vehicles Act to fix the income of a spouse for the purpose of the assessment of compensation in road accident cases. All the judicial pronouncement existing and relating to this subject are decided on basis of the deleted provisions in the Act (Second Schedule under Section 163A), and those decisions are not at all adequate to fix the pecuniary value of housewife’s service. Therefore the Courts have to more vigilant in assessing the compensation in the case of deceased housewife.
By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commission,TVM
31/07/2020
Some Pertinent Questions on Abdul Azeez v. State of Kerala
Reported in 2019 (4) KLT 993
(By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commission,
Thiruvananthapuram)
The case in brief is that, four accused persons with their common intention to commit robbery and murder trespassed into the house of Mrs.Subaida in a midnight and committed robbery therein. While robbery was undergoing, two of the accused, including the petitioner, waited outside the house for alerting their co-friends. The robbery ended in aggravated form and thereby causes the life of Mrs.Subaida. After incident the accused went behind shadows. All persons, except A2, were apprehended and remanded. They had been in judicial custody since then. While they were undergoing detention, the prosecution filed a petition before the Judicial First Class Magistrate’s Court seeking permission to declare the petitioner, Abdul Azeez, who was A4 of the case, as an approver by tendering pardon. The statement of the petitioner was recorded as approver and final report was filed before the Chief Judicial Magistrate’s Court, Kasargod. The honorable Chief Judicial Magistrate’s Court had granted pardon, subject to the condition that he would make a true and full disclosure of the whole circumstances within his knowledge relating to the offence and every other person concerned, as principal or abettor in the commission of said offence.
After accepting tender of pardon, the petitioner, Sri Abdul Azeez filed a regular bail application before Sessions Court. By rejecting the same, the Session’s Court held that, a woman living alone was murdered after robbing her gold ornaments and that the release of the petitioner therefore at that stage was not feasible.
Against which, the petitioner approached the Honorable High Court. By rejecting the bail, the Honorable High Court held that, the provisions of Section 306(4) of Cr. P.C. should be construed as a general bar in releasing the approver on bail. The bail shall not be allowed to them until the conclusion of trial unless he is not already on bail. At the same time a vestige of discretion is available on the High Court as per Section 482 of Cr. P.C., to consider the plea of the approver to be released on bail on rare and exceptional cases, after careful weighing of all relevant and crucial aspects of the case.
The Court further held that “this need not be an end of the road of the petitioner. If all the accused persons were available for trial, then in a case like this, this court directing the court below and the prosecution agency to ensure timely completion of the trial within a reasonable time limit so that the interest of the prosecution, other accused persons and that of the petitioner could be duly protected. However since A2 is absconding, even if cases against other accused persons are split up and proceeded, the petitioner may have to wait till the apprehension of the absconding accused. Therefore the police agency concerned is duty bound to ensure that all sincere steps are taken for the early apprehension of the absconding accused”.
On going through the case in hand, the following pertinent questions are to be taken into account on tender of pardon and the status of such conferred witness.
(a) Whether the statutory mandate as contemplated in Section 306(4)(b) of the Criminal Procedure Code, by prohibiting bail to those persons, who tendered pardon, can be treated and construed as an absolute fetter?
(b) Whether the statute mandates that the approver shall be put behind bars, till the end of trial, or till the availability of all accused? If so, is it leads to a new punishment to him, other than the punishment offered under the offences committed by him, along with his co friends?
(c) If any person absconding or his whereabouts were unknown, is it legally permissible to put a person behind bars, on the guise of his security, till the arrest of the last absconding accused?
(d) If the case is split up and ends in acquittal or punishment, the approver alone has to wait behind bars for long period till the end of the prosecution. Can it be termed as fair trial?
(e) Whether a person accepted tender of pardon in more than one case, he has to wait and suffer the jail term until the last person detained?
(f) Whether a conferred witness is permitted by law to be detained in custody till the end of the trial because of the protection of their person?
(g) If the concern of the health, safety and welfare of the approver is the predominant consideration of the prosecution for denial of bail, why the same who already on bail in the crime stage and accepted tender of pardon thereafter, hadn’t been taken in to account?.
The connotation of pardon means the action of forgiving or being forgiven for an error or offence. The Cambridge dictionary defines that pardon is to forgive someone for something they have said or done. One who has committed a crime is pardoned, that person is officially forgiven and his punishment stands stopped thereafter. The term tender means showing gentleness, kindness or affection. It does not mean that those persons who had committed heinous offences should be given the protection of pardon. They must definitely be booked under law and be given harsh punishments.
Every citizen of India has a fundamental right to freedom guaranteed under Article 21
of the Constitution of India. Freedom of every Individual within the territory of India is subject to the rule of Law. In Hussainara Khatoon v. State of Bihar(1979 KLT OnLine 1045 (SC)
=AIR 1979 SC 1369) our Apex Court held that the procedure under which a person may be deprived of his life or liberty should be reasonable, fair and just. Once the State and the person pardoned is to be entered into an agreement or contract then both parties should be expected to perform their part fairly and reasonably. A pardoned person has to put behind bars for want of the absconding accused, cannot be treated as a golden rule of interpretation of Section 306(4) of Cr. P.C.
Section 306 Cr.P.C. empowers the magistrate to allow Pardon to one of an accomplice, where grave offence is alleged to have been committed by several persons, have no direct evidence, and to extract and elicit the real truth before the court of law. So that the person pardoned robotically move after his co-friends of the offence along with the prosecution. The criteria of selecting a person for tendering pardon is not mentioned in Cr.P.C. Therefore, the role played or part performed by a person in a crime is not a weighing ground for tendering pardon. The principle behind it is that the culprits are to be booked and seldom allow them to escape from the clutches of law due to the non availability of evidence.
A person accepting tender of Pardon is to be examined as witness in the court of the Magistrate, which took cognizance as well as in the trial court. Therefore after tendering pardon the status of that person should automatically be transformed to witness. Rejecting bail due to the concern over retraction of statement may be immaterial, because, conferred witness status is only an agreement between the State and the person accused of the offence. Another concern, over the life and well being of the approver behind bars is to be squarely applicable to that approver who had been accepted tender and traversing outside bars.
It doesn’t matter whether the approver is to retract from his statement and has not made as full and true disclosure of whole of the circumstances within is knowledge relating to the offence. Grant of pardon is in the nature of a contract between the state in one hand and the pardon accepting the person on the other. But a person accepting tender of pardon has force to change his status from accomplice to a witness. It means, an accomplice involved in a series of cases of same gang and accepting tender of pardon, the ultimate result is that he should be detained in custody till the end of last case.
The statutory mandate of Section 306(4) of Cr.P.C. is not intended to punish an approver who come forward to give evidence in support of the prosecution but to protect him from personal indignation, rage and resentment from his associates and to prevent his future temptation of saying in favor his one time friends after he accepted pardon and released from custody. That doesn’t mean that he must have to state the facts in tune with the prosecution. He must State the truth within his knowledge and belief. Therefore his status can legally and conveniently be termed as a best friend for the prosecution and not a guinea pig.
It may be true that the release of the approver may harm his life by his associates. But he accepts the same by knowing the entire consequences either from the prosecution or from his associates. So once he accepted such a risk with the hope of freedom, then why he is to be compelled to put behind bars for a long period. The release of an approver on bail may not be illegal if it does not affect the validity of pardon once granted.
It is in need of time that the criminals should be punished, deterred or may be refined properly depending upon the factual situations of each cases. Truly crime is against society, in particular against each individual. But our adversarial legal system depends only to drive on the road cleared by the prosecution. Therefore, some road may be closed if no documentary or circumstantial evidence available. In such stage prosecution has to hire a witness for clearing its path. The benefit is given to one of those accomplices to disclose the matter to the prosecution. At the moment he is accepting tender of pardon his status of accomplice is to be removed and he become a witness.
It is the settled principle that once a lawful benefit is to be provided to a person, that benefit must be unfettered, uninterrupted subject to the restriction of overreach. So Section 306(4) of Cr.P.C. though literally construed as a general bar it is not an absolute bar in its entirety. Never law interprets a favor to one person and sanction to other in a same offence.
In Saidevan Thampi v. State of Kerala(2013 (4) KLT Suppl.93 (Ker.), it was held that
the Section 306(4) cannot be taken as an absolute prohibition and that in appropriate cases a vestige discretion is available to be exercised by virtue of enabling inherent powers conferred on this court under Section 482 of Cr.P.C. But that rule is not taken in to account in the instant case.
In Ismail v. State of Kerala(2016 (3) KLT 445), it was held that when an application from an approver comes under Section 482 of Cr.P.C. on acceptance of tender of pardon to release him on bail the High Court will have to consider the following aspects,
Firstly, a possible suspicion regarding the reliability of the approver due to his antecedents. Second one the possibility of the approver who being influenced or the chance of won over the defence. Third one is that the possible threat to his person and life. Fourth one is the possibility of the approver fleeing from the process of law and the process of trial to rescue himself from unpleasant situation of implicating his own crime partners. But in Abdul Azeez’scase, the court took a different view that the bail cannot be allowed as there is an absolute bar in Section 306(4) of Cr.P.C.
It is ambiguous and mutually contradictory when we going through Section 306(4) of Cr.P.C.
Every person accepting a tender of pardon under sub-section (1) shall be examined as a witness in the court of the magistrate taking cognizance of the offence and in the subsequent trial if any shall unless he is already on bail, be detained in custody until the termination of the trial.
The Legislature tried to part with the persons in to two spans. One is the person who accepted pardon during the bail period and the other is the person who accepted same during detention. The judicial evaluation of the case in hand ought to have been concluded that once a person is given status of witness then he must immediately be released from custody. If he is to be released in that way, it is irrelevant for furnishing bail bond, security deposit and other conditions, as what is done in the case of as accused person. Therefore Abdul Azeez v. State of Kerala (2019 (4) KLT 993) is not a good law.
A Critique on High Court Order to Dispense with the Personal Production of Accused before the Jurisdictional Magistrate
By P.K. Rony, Advocate, Kollam
25/07/2020A Critique on High Court Order to Dispense with the Personal Production of Accused before the Jurisdictional Magistrate
(By P.K. Rony, Advocate, Kollam)
Sri.D.K.Basu, a legal activist of West Bengal wrote a letter to the then Chief Justice of India, to raise concern over the custodial death and violence committed by police across the country. He raised his voice against the repeated violence which was being reported in the police custody and lockups. The Hon’ble Chief Justice of India treated the letter as a Writ Petition. The Hon’ble Supreme Court had admitted the issue of arbitrary arrest and crime in lockups and custody. Strictly adhering to Article 21 and 22(1) of Constitution of India, finally the court held a land mark Judgement, where guidelines regarding arrest of persons were prescribed to prevent any infringement with the rights of an individual during the arrest and detention. Though various constitutional Courts of our Country had made stringent directions following D.K.Basu’s case (1997 (1) KLT SN 54 (C.No.71) (SC), but
stillthere are crimes in lockups and Police brutality all across our country. Still the custodial violence, brutality, torture and terrorism at the hands of police are reported from many parts of the country. The latest visuals of the third degree brutal police terrorism from Thoothukudy of Tamilnadu State,is disturbing our sleeps. That unforeseen incident again and again demands the crucial role of remanding Magistrates to safeguard the constitutional rights, such as right to life and personal liberty, guaranteed under Article 21 and 22 of our Constitution.
The recent news from Tamilnadu and rest of the country is alarming. The situation that the custodial violence including torture and death in lockups strikes at the rule of law. The judiciary has to open up all its organs to curtail such worst crimes in a civilized society governed by the Rule of Law. But the present scenario invokes our consciousness that even on repeated measures taken by Apex Court to ensure the rights of persons in custody, but the remanding magistrates are sometimes causing heavy damages by ignoring such directions and acting casually as remand machines. The law and judiciary in a democratic country cannot be prejudicial in its approach and can’t deny basic rights, liberty and freedom of its citizens.
The Code of Criminal Procedure Section 167(2), clearly states that, if an investigation is not completed within 24 hours of arrest of an accused ,he shall forward to the nearest magistrate with all entries of case records. The magistrate may authorise detention of an accused in such custody. But S.167(2)(b) clearly bars such detention unless the accused is produced in person before the Magistrate. The object of this provision is twofold, firstly that the law doesn’t favour detention in police custody except in special situation and that too for reason to be stated by the magistrate in writing. Secondly, to enable such accused to make representation in person before the magistrate at the very outset of investigation. The only relaxation to this rule is for the further extension of detention, while the accused is in judicial custody, can be through electronic video linkage. Such a relaxation was incorporated through the Criminal Law Amendment Act 5 of 2009. But the word used in the amended provision is “further detention in judicial custody,” speaks volumes of legislative intention. Once the accused is remanded, he is supposed to be under deemed custody of court and for further extension can be through video linkage. So, at any rate, such incorporation will strike down the mandatory, statutory requirements of physical production of accused at the first time, before the jurisdictional Magistrate for remand.
The Magistrate shall not act as a remand machine, but to exercise his power judicially to enable the accused to make representation to controvert the grounds of arrest as well as his difficulties in custody. Hon’ble Apex Court in Manubhai Ratilal Patel v State of Gujarat
(2012 (4) KLT SN 45 (C.No.38) SC = AIR 2013 SC 313) observed the importance of judicial
functions while remanding an accused and observed that the fundamental judicial function is not to remand an accused to jail and the Magistrate shall not mechanically remand the accused. The non production of accused will be detrimental and prejudicial to the interest of the accused as is denying an earnest opportunity to air his difficulties suffered in custody.
Recently the Registry of Hon’ble High Court of Kerala issued an administrative order, No.D.I/3/28738/2020 dated 25.05.2020 with regard to the virtual production of accused persons before the jurisdictional magistrate to avoid spread of Covid 19 Pandemic. The High Court Registry had insisted to abstain from producing accused persons under arrest with or without warrant before Magistrate. I wonder how the Registry of our high Court can get over the statutory mandatory provision for physical production of accused as contemplated in Section 167(2)(b) Crl.P.C. The legislature had not interfered with such mandatory provisions even through the watering amendments of 2009.Only the“further extension of persons”, under judicial custody can be extended through video linkage. Here, with the above administrative order, the High Court Registry is going beyond the safeguarding provisions mandated in Art. 21, 22 of Constiutution and many other mandatory orders showered by the Apex Court to protect the quality and dignity of life and liberty of persons under arrest.
The present custodial torture stories from Tamilnadu, haunts my consciousness as a lawyer. I wonder, what actually had done the magistrate concerned while remanding the arrestee. It is also heard that he casually remanded the duo by sitting in upstairs of his quarters while the arrested were kept in police van. Is he acted as a puppet in the hands of Police. Obviously, the magistrate had thrown away the basic principles of law and mechanically remanded the accused without following the directions of Apex Court. If so, it amounts in failure of discharging his duty and is so detrimental to the rule of law. The entire judicial system of the country, who are supposed to be the watch dog of constitutional rights, are under threat of dereliction of their fundamental duty and is absolute failure of judicial system. The accused can unfold all his hardships including intimidation, distress, torture ,physical or mental injuries or any material aspect regarding his arrest and custody to the judicial officer and the officer can very well examine him either in person or through the help of medical experts and can act judiciously regarding his grievances. The jurisdictional magistrate can treat such complaints made in writing or orally by the arrestee, as complaint and proceed accordingly. It is a self contained defence mechanism to protect the dignity and decency of an arrestee. Obviously, such failures from judiciary will tend to water the rule of law and rights guaranteed under constitution. It also points to the casual attitudes of judicial officers in performing their divine duty. The Higher Court should be very vigilant and vibrant to avoid such black marks in judiciary so as to protect the faith of common people in the esteemed system. The Higher courts in India should be more vigilant and seriously watch in close regarding the quality and dedication of lower judiciary as they are directly and closely linked with fundamental needs of public at large.
In the present scenario, I hope that the Hon’ble High Court will struck down the illegal order to protect the safe guarding mechanism as contemplated in our Constitution.
Per incuriam is the Precedent on per incuriam
By Vinod Bhat S., Advocate, High Court
25/07/2020Per incuriam is the Precedent on per incuriam
(By Vinod Bhat S., Advocate, High Court of Kerala)
Judgment of the Full Bench of the Hon’ble Kerala High Court in Raman Gopi v. Kunju Raman Uthamanreported in 2011(4) KLT 458 (F.B.) is not uthamam. Recently, a learned Single Judge was taken prey, yet again, in K. Deepa v State of Kerala, W.P.(C) 20301/2019 dated 14.07.2020. The learned Single Judge, in paragraph 11 of the said judgment held :
“But I find that when there are different judgments of co-equal benches, this court has to follow the later one in point of time, as held in the judgment of the Full Bench of this court in Raman Gopi & Anr. v. Kunju Raman Uthaman.”
The Full Bench (in Raman Gopi(supra) while summarizing the legal position (in paragraphs 60 and 61 in KLT), after relying on earlier Full Bench judgment in Joseph v Special Tahsildar reported in 2001(1) KLT 958 (F.B.) held-
“(i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;”
In Raman Gopi,supra, the Full Bench relied on Central Board of Dawoodi Bohra Community’scase reported in 2005 (1) KLT 486 (SC) = (2005) 2 SCC 673. Interestingly in that
case it was in fact held –
“Subordinate courts with respect must choose to follow the earlier binding precedents notwithstanding the later per incuriamdecision of the smaller or co-ordinate bench.”
InSandeep Kumar Bafna v. State of Maharashtra reported in 2014 (2) KLT 809 (SC), in paragraph 15 thereof, it was held –
“It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earlier view as the succeeding ones would fall in the category of per incuriam”.
Now time is ripe for the Uthaman to set right the legal position.
By P.K. Suresh Kumar, Senior Advocate, High Court of Kerala, Ernakulam
25/07/2020
A Case for the Repeal of Rule 6 from The Contempt of Courts
(High Court of Kerala) Rules
(By P.K.Suresh Kumar, Senior Advocate)
A High Court, as envisaged by the Constitution of India is a mighty institution. The founding fathers wanted that court to have all the glory and prestige so as to match its huge role to be played under the constitutional scheme. That is why the Constitution, even before describing who would constitute the court hastened to say through Article 215 that the High Court would be a Court of Record and shall have all the powers of such a court including the power to punish for contempt of itself.
A Court of Record is not defined by the Constitution. But, as the Supreme Court said the expression is well recognized in the juridical world as a court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony and which has power to fine and imprison for contempt of its authority (1991 (2) KLT OnLine 1007 (SC) = AIR 1991 SC2176).Being a Court of Record with power to punish contempt of its authority is the hallmark of a superior court in Anglo Saxon legal system and it was well recognized during the colonial period that the Indian High Courts were such superior courts. It is that superiority that was recognized and retained by the Constitution by way of Art.215.
Article 215, therefore, recognizes and declares the inherent power of a High Court
to punish for the contempt of its authority. The Contempt of Courts Act is only a legisla-tion which regulates the manner in which such power is exercised. As held by the Supreme Court in Supreme Court Bar Association’scase (1998 (1) KLT SN 84 (C.No.85) SC =
AIR 1998 SC 1895)the power to punish for contempt being inherent in a court of record no act of Parliament can take away that power. The Supreme Court further observed that the legislative power cannot be exercised so as to stultify the status and dignity of the Supreme Court or the High Courts though a legislation may serve as a guide for the determination of the nature of punishment or the conduct of the proceedings in that regard.
So, the Contempt of Courts Act is a piece of legislation which acts as a guide to the Supreme Court and the High Courts in the exercise of their authority to punish for contempt. The source of power here is not the statute but is something which is inherent in courts of record as recognized by the Constitution. So, the Act or the Rules thereunder cannot operate in a manner which takes away or undermines the power of the Courts.
The Kerala Rules under the Contempt of Courts Act, however, makes an invasion into the forbidden area by taking away the authority of a single Judge in punishing for the contempt. Art.215 does not make any distinction between a bench consisting of one Judge or two Judges or more. Art.216 says the High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. So, anyone of them exercising the powers of the High Court is covered by Art.215 too and the power to punish for contempt of its authority is inherent in all Judges who constitute a High Court. However, the Act while regulating the exercise of powers to punish for contempt made a provision through S.18 that criminal contempt shall be dealt with only by a bench consisting of at least two Judges. The Parliament might have thought that criminal contempt being much more serious in nature compared to disobedience to orders and judgments should be considered by a Division Bench. But, in the matter of civil contempt such a condition has not been imposed by the Act. So, it is obvious that the intention of the Parliament is that civil contempt shall be dealt with by any bench irrespective of its strength. Probably, the intention is to facilitate the hearing of matters relating to civil contempt by the author of the judgment itself. The hearing by the author of the judgment, as far as possible, is highly necessary because she/he is the best person to know its spirit and purpose.
But, those who have framed The Kerala Rules under the Contempt of Courts Act seem to think that Single Judges are incapable of dealing with even ‘civil contempt’. Rule 6
of the said Rules reads: “Every proceeding for contempt shall be dealt with by a Bench of not less than two Judges”. A proviso to the said Rule, of course, permits a single Judge to hold a preliminary enquiry in the matter if the judgment or order alleged to be violated is his or hers. But, the single Judge has to post the case before a Division Bench if she/he finds that someone is prima facieguilty of contempt. The moment someone is found to be prima facieguilty of contempt, the single Judge becomes powerless and helpless. This is a very anomalous situation and is not warranted either by the Constitution or the Contempt of Courts Act. I am sure that the great minds which worked behind the promulgation of Art.215 would not have ever dreamt of such a situation.
Rule 6 of the Contempt of Courts (High Court of Kerala) Rules which creates such an absurd situation has to be removed from the Rules. It is inconsistent with Art.215 of the Constitution of India and also inconsistent with the Contempt of Courts Act. S.23 of the Contempt of Courts Act confers power on the Supreme Court and the High Courts to make rules not inconsistent with the provisions of the Act and providing for any matter relating to its procedure. The power is very limited in nature; it can only lay down the procedure and it cannot go inconsistent with the Act. While laying down the procedure it cannot take away a power which a single Judge enjoys by virtue of the Constitutional provision and also as per the Act. As mentioned earlier, the Act insists for a hearing by a Division Bench only in the matter of criminal contempt. So, as per the Act, civil contempt can be dealt with by any bench irrespective of its strength. That position cannot be altered by the Rules which are intended only to provide a procedural form. The villainous Rule 6 is therefore liable to be removed from the statute book without any delay.
To make matters worse, a Division Bench went to the extent of saying that a single Judge did not have power even to summon an alleged contemner. The decision reported in 2014 (1) KLT 147 (Jyothilal v. Mathai)relied heavily on Rule 6 and held that a contempt proceedings begin only when the Division Bench is in seisin of the matter. Rules relating to service of notice and personal appearance etc. were all held to be irrelevant while a single Judge dealing with a contempt case for holding preliminary enquiry. The decision which makes a single member bench all the more powerless is rendered without understanding the larger concepts behind the constitution of a court of record with plenary powers and is definitely retrograde. The decision is liable to be pushed into oblivion and that is possible only by the removal of Rule 6.
By removing Rule 6 and allowing single Judges to handle contempt cases in their entirety would surely enhance the effectiveness in dealing with disobedience to judgments and orders. But, a doubt may arise here as to whether the Chief Justice cannot allot all contempt matters to a Division Bench without the aid of Rule 6. There, my only answer is that the Master of the Roster will act only in consonance with the spirit of Art.215 and will always uphold the dignity of the court.