Legal Impact of Covid 19 on Shipping Industry and its Aftermath
By Hari Narayan, Advocate, HC
05/06/2020Legal Impact of Covid 19 on Shipping Industry and its Aftermath
(By Hari Narayan, LL.M. (U.K.), Advocate, High Court of Kerala)
The World Health Organisation has declared Covid 19, a pandemic which has already affected the lives of millions world over. What is the after effect of this pandemic on the business and trading community is a matter which still remains unpredictable. It is quite possible that the financial crunch caused by the pandemic could remain for some more time destabilizing or practically threatening the very backbone of economy of many nations. Needless to say that the ripple effect will be there in the shipping industry as well.
Among the several industries, it is estimated that the shipping sector is most likely to be hit hard by the pandemic. When we say that, if shipping is affected, certainly it is going to affect the entire supply chain industry for the simple reason that 90% of the world trade happens through sea.
China, for instance, has been one of the prominent industrious nation exporting a sizable portion of equipments and accessories needed by the rest of the world including but not limiting to life saving devices. Once the manufacture and supply gets disrupted on account of lockdown declared by China and followed by rest of the world to contain the spread of virus, the supply chain mechanism is facing critical issues.
Another concern which has caught the attention of stakeholders in the industry is the treatment of crew members. It is estimated that around 1.6 million crew are working in merchant ships all over the world out of which a sizable contribution is from countries like India, China and Philippines. From March 2020 onwards, thousands of crew are stranded in several parts of the world unable to return back to their home safe. Even if the ship owners are willing for replacements, it is practically impossible for crew change due to various restrictions imposed by several countries including movement of people and goods.
Similar to the situation of crew is the condition of several Ports which are unable to handle the storage of goods in the limited space available within Ports. This cause congestion of cargo at ports and warehouses , resulting in closure of port activities more particularly, the cargo storage, loading and unloading operations.
Accumulation of cargo in ports, inability of purchasers to clear the cargo within the permissible time will entail them with risk of demurrage charges in addition to liability exposure on account of failure to fulfil contractual obligations. Delay in clearing is also a serious concern for cargo especially those which are perishable in nature.
What is the legal implication of such disruptions? English law does not recognize ‘Force Majeure’ unless it is clearly specified in the contract of affreightment. Therefore, atleast in respect of those charter party and sale contracts governed by English law, the parties may have difficulty in taking recourse to ‘force majeure’ unless a pandemic of this nature is specifically covered under the contract. Needless to say that the defaulting party will be contractually liable for all loss caused on account of the disruption due to Covid 19. In such circumstances, the party will have to rely on the doctrine of frustration which can potentially apply to contract. However, whether frustration is available will depend on the circumstances of each contract and is most likely to be disputed. Further, legal changes such as any Covid 19 emergency legislation may render performance of certain contractual obligations impossible.
That apart, once ‘lock down’ has been declared, many of the ports may turn to be, ‘unsafe ports’ making it impossible for ships to call at such ports for discharge of cargo. In such situation, the option available to charterer is to nominate another safe port or deviation. Both would amount to breach of charter party from the owners point of view unless specifically permitted under the contract.
Further, the quarantine process of crew and goods would also delay the movement of goods thus exposing the party to huge financial risk and even third party liability. Claim against cargo damage on account of delay will also be an issue likely to be addressed before legal forums. From the cargo receivers point of view, even if the cargo is insured under ICC standard terms, the same may not cover financial loss in so far as ‘damage due to delay’ is an exclusion.
Though the determination of liability and legal disputes may not commence immediately, it is almost certain that such legal issues will surface once the nations recover from the crippling effect of Covid 19.
It Is Worth Getting Back
By Aruna A., Advocate, HC
02/06/2020It Is Worth Getting Back
(By Aruna A ., Advocate, High Court of Kerala)
The High Court of Kerala has now reopened after a long break of eight weeks. It surely gives me a hope that, everything will get back to normal. After college, my office is one of the few places where I have felt like ‘I belong here’. I had to take a small break due to health issues. It was really hard to take that decision and stay home. Within few days, the pandemic outbreak began, and soon, lockdown was declared in India. One of my colleagues said, “the entire country took a break with you.”
Since the first day of lockdown, I have gone out of the house only four times. Twice for buying grocery and twice for morning walks. Now that lawyers are gearing up, to get back on track, the realization that many things as I know have changed make me nervous as well. Earlier, while at courts or office, my worries were mostly about work. Now, I will carry a lot of virus induced anxieties too.
I am used to many things; rushing to a colleague’s desk for help, standing close to each other during every day meetings, using neck band of others, eating near the crowded food joint or in the canteen, shaking hands, sharing food, drinking from bottle of others, doing quick research from the Association library, heading to the filing section to cure defects noted by the filing section, finding a way towards our files in the crowded 3A courtroom, leaning towards the handrail of the escalator. I may not be able do any of this anymore. It is difficult to let all those habits go.
I know that everybody is scared and there was a shadow of realization on the virtual faces of my colleagues that we will have to learn to live with this virus. But all are scared about the chances of carrying the virus home. Therefore, everyone will try to keep a distance from each other. These are hard times and we need to fight it to go forward. Or as my Senior told me, “no more fights, we need to deal with it.”
The physical distancing may not affect warmth of any relation. But, how can I stay 6 feet away when I see my friends again. It is going to be really hard to re-learn things like, how to express emotions and how to contain it. While going outside with a mask glued to my face, what affected me the most is, the vanished smiles. It looks like one grim world, with all those smiles hiding behind the masks. However, nothing can hide the reflections of a beautiful smile in one’s eyes.
Sometimes, it feels like living in a fictional world of Hollywood movies. And I am afraid that, our world will be remembered as ‘before and after Covid’. There may not be any more time on the beaches. There may no longer be sudden plans for a Munnar trip. There may not be any stand-up comedy nights anymore. There may not be any drive to Queen’s Way. Even then I am happy.Scared, but happy.
I am really glad that there is a ray of hope, and I have decided to cling on to it. I am happy that we are far ahead of many countries in preventing the spread of Covid. It was on January 30 that the first case of Covid was reported in Kerala, and all Keralites stood as one and the Government did their best. I am grateful to all. I am happy that I am able to go back to my office and see those familiar faces. I will be able to do what I know and forget about the bleak news I hear every day. There will be a sense of purpose every day.
So I am getting out to resume work – intending to develop some new habits to stay alive, and importantly, stay happy.
The Ad Coelum Doctrine andSub Soil Rights in India
By P.B. Krishnan Advocate & Dhanya Prasad Law Student
02/06/2020The Ad Coelum Doctrine andSub Soil Rights in India
(By P.B.Krishnan, Advocate, High Court of Kerala and
Dhanya Prasad, Fifth Year B.A ., LLB (Hons.) NUALS, Kochi)
The Kerala Minerals (Vesting of Rights) Ordinance, 2019 promulgated on 29.12.2019 and kept alive through The Kerala Minerals (Vesting of Rights) Ordinance, 2020 vests the subsoil and mineral rights of all lands, irrespective of ownership and tenure in Kerala, in the State. This law making exercise gives a contemporary flavor to a long running tussle among various stakeholders in regard to these rights.
The Latin maxim, Cujus Est Solum Ejus Est Usque Ad Caelum (“He who possessesland possesses also that which is above it”)(1) and its broader formulation Cujus Est Solum Ejus Est Usque Ad Caelum Et Ad Inferos (“Whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell”) is better known in its abbreviated form as the Ad Coelum doctrine. The maxim suggests that property holders have rights not only to the plot of land itself but also the air above and (in the broader formulation) the ground below. William Blackstone in his 18th century treatise, ‘Commentaries on the Laws of England’ coined a theory of Ownership to the center of the Earth on the footing that Ownership extended “…an indefinite extent, upwards as well as downwards”. Blackstone elaborated that downwards means whatever is in a direct line between the surface of any land and the center of the earth, belongs to the owner of the surface.(2) The early decided cases in England see a selective and limited application of the maxim mainly in the matter of disputes relating to airspace.
These principles of English law were borrowed and applied in some measure in British India while adjudicating subsoil rights. In Kumar Hari Narayan,decided in 1910, the dispute between a Zamindar and his lessee related to the right to mine coal in respect of a parcel of land in Bengal. The Zamindar contended that he had leased only the surface rights for cultivation and retained proprietorship of the mineral rights. This argument was accepted by the Privy Council holding that “…. he must be presumed to be the owner of the underground rights thereto appertaining in the absence of evidence that he ever parted with them…”. (3) This principle was followed by the Privy Council in Raja Sri Sri Durga Prasad Singh (4)and elaborated in Sashi Bhushan Misra holding that the even if the tenure is permanent, heritable and transferable, the right of the Zamindar in the minerals remains intact.(5)
The cases aforesaid did not consider the right of the Sovereign in the minerals in as much as the dispute was between Zamindars and their lessees. There were 565 recognized and many unrecognized Princely states at the time of withdrawal of British rule. The Princely states were considered to be Sovereign within their territorial limits. Each Princely state had its own sets of rules and regulations on the rights of the owners and occupants of land, land tenure and the status of the lands at settlement. The rights of the Zamindars or Jenmis and occupants of lands in the minerals also consequently varied from State to State. In some States, the Sovereign had declared or notified that the minerals belonged to the State. The Travancore Proclamation dated l4th day of June, 1881 and the Cochin Proclamation of 1905 are ready examples of this kind of exercise. In some other provinces, there was no such declaration or notification. A ready example is the Jenmamlands of Malabar. These variations have great significance to the present day rights of citizens of India in the subsoil and minerals.
It may be noted that there were significant changes in land tenures in the pre Constitutional era. Survey and settlement processes also made significant changes in the rights of the individuals, who owned the properties in title or were in possession as occupants or tenants. Some of these processes led to resumption of land by the Sovereign and conferment of rights in the Occupant by the Sovereign. In respect of land that were resumed by the Government, extinguishing the rights of the Zamindar and settled permanently in favour of the Occupants, it is held that the right to minerals under the soil vests with the Occupant in whose favour the land is permanently settled.(6)
The significance of the changes in the local law is best illustrated by reference to the Madras Estates Land Act, 1908 and the changes brought about by the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948. The former Actenables a land holder, as defined in Section 3 (5) of the Act, to make a reservation of the mineral rights under Section 7 of the Act while admitting a person in possession. This obviously meant that the landholder was the owner of the mineral rights and no reservation was made in favour of the sovereign. Pattas are to be issued by the landholder and therefore the Pattadar (when no reservation is made under S.7 remains the owner of the minerals.(7) However, Section 3 (b)
of the later Act vests the mineral rights as well in the State.(8) The question whether the holders of Ryotwari Patta holders under the later Act are entitled to subsoil rights is pending adjudication before the Supreme Court.
The advent of the Constitution does not appear to have made any significant change in the rights of the sovereign vis a visthe citizen. While Article 297 of the Constitution expressly vests the rights in off shore minerals in the Union a similar formulation is absent in respect of on shore minerals. Articles 294 and 295 of the Constitution do not expressly refer to mineral rights and/or conceive of vesting of such rights in the Union. The rights of the Union are subject to liabilities and obligations incurred by the earlier Sovereign. The rights of the Union of India in on shore minerals are not enhanced in any manner by the provisions of the Constitution. If the citizen had a right in the minerals under the law or custom or usage in vogue prior to the advent of the Constitution, such rights remained intact in the post Constitution scenario as well.
The enactments made immediately after the advent of the Constitution also do not appear to significantly enhance the right of the Sovereign in the matter of title to minerals or sub soil rights. Entries 53, 54 and 55 in list I of the Seventh Schedule of the Constitution enables the Union Government to make laws for regulating and developing mines, oil resources etc….as also to regulate labour and safety in such facilities. The Mines Act, 1952 was enacted to regulate labour and safety in mines. The Mines and Minerals (Development and Regulation) Act, 1957 sought to provide for development and regulation of mines and minerals. In terms of the declaration made in Section 2 of that Act, the Union could in public interest “ …take under its control the regulation of mines and the development of minerals to the extent provided.” Consistent with the object and declaration aforesaid, all activities related to mining or proposed mining require a permit or license. The Mines and Minerals (Development and Regulation) Act, 1957 does not vest any mineral or subsoil rights but only regulates activities connected therewith. There were other enactments of that period like the Coal Bearing Areas (Acquisition and Development) Act, 1957 that provided for the acquisition by the Union of the coal bearing areas.
In the post Constitution era the decisions on the subject have not been uniform. The mere existence of an Inam grant is held insufficient to infer that the sub soil rights belong to the Inamholder.(9) In Raja Anand Brahma Shah,another Constitution bench held that the passing of a Regulatory law in the matter of revenue settlement will not confer any proprietary right in the minerals in the State.(10) Consistent with these principles, the right of the land holder to claim compensation for minerals in acquired lands has been upheld.(11)The Full Bench of the Karnataka High Court considered the case of lands that originally was part of Madras and on reorganization of states became part of Karnataka. In such lands, the Pattaholders were recognized to be the full owners of the mineral rights and the Ryotwari Patta holders were part owners, entitled to a share in the mineral rights.(12) In the Kesoramcase, the Constitution bench has observed, in the context inter aliaof disputes between the Union and some States on the right to collect of Royalty, that the owner of the land owns the minerals as well.(13) However, there are a number of other weighty issues also thrown up by that Judgement. Its correctness has been doubted and the matter stands referred to a bench of Nine Judges.(14)
The application of the Ad Coelumdoctrine, in the conflicting claims of the citizen and the State to subsoil rights, finds expression in Thressiamma Jacob.(15) The Supreme Court while adjudicating the rights in Jenmamlands in Malabar held
“25…... The necessary inference is that the British recognised that the State had no inherent right in law to be the owner of all mineral wealth in this country. They recognised that such rights could inhere in private parties, at least Zamindars and Inamdars or ryots claiming under them in a given case.”
“57..... For the above-mentioned reasons, we are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process.”
A similar approach is noticed in the later decision of the Supreme Court regarding the Hill Districts of Meghalaya. (16)
“75.... Thus, looking to the nature of the land tenure as applicable in the Hills Districts of State of Meghalaya, the most of the lands are either privately or community owned in which State does not claim any right. Thus, private owners of the land as well as community owners have both the surface right as well as sub-soil right. We are, thus, of the opinion that tribals owned the land and also owned the minerals, which is an inescapable conclusion. We, thus, proceed to examine the issues on the premise that in privately owned land or community land minerals also vest in the owner....”.
It can therefore be concluded on good authority that a land holder in India has subsoil and mineral rights by application of the Ad Coelumdoctrine unless the State can show that such rights are reserved in the Sovereign. The title and tenure under which the land is held in the pre Constitution era appears to be of paramount importance. Much will also depend on whether a vesting or declaration of vesting is made by the State or prior Sovereign that has the effect of reserving the subsoil and mineral rights to itself.
The promulgation of the Ordinance referred to suprasuggests that the last word is not out on this subject. It is obviously intended to get over the rigour of the Judgement in Thressiamma Jacob (supra). The legislative competence of the State may get questioned. It may be attacked as being expropriatory. A more fundamental issue may also get addressed when a challenge is mounted to the new law. Are subsoil and mineral rights merely part of the right to property or is it a natural resource to which the public trust doctrine applies? The answer to this key issue will determine if the rights, Ad inferno live onAd Coelum.
Foot Note:
(1). Broom’s Legal Maxims New Eleventh Edition, Page 290.
(2). Blackstone, Commentaries on the Laws of England 4th Ed. (1770) Vol. II. Page 18 ‘Land hath also in its legal signification a definite extent upwards as well as downwards. Cujus est solum ejus est usque ad coelum is the maxim of the law upwards...... So that the word land includes not only the surface of the earth, but everything under it or over it’
(3). Kumar Hari Narayan Singh Deo Bahadur & Anr. v. Sriram Chakravarthi & Ors., XXXVII Indian Appeals page 136 at 146.
4. Raja Sri Sri Durga Prasad Singh v. Braja Nath Bose & Ors. XXXIX Indian Appeals page 133.
5. Sashi Bhushan Misra and others v. Jyoti Prashad Singh Deo & Ors. XLV Indian Appeals page 46.
6. Lodna Colliery Co. Ltd v. Bhola Nath Roy(AIR 1964 SC918).
7. Madras Estates Land Act, 1908 - Section 3(5) -”Landholder” means a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor-in-title or of any order of a competent Court or of any provision of law. Where there is a dispute between two or more persons as to which of them is the landholder for all or any of the purposes of this Act or between two or more joint landholders as to which of them is entitled to proceed and be dealt with as such landholder, the person who shall be deemed to be the landholder for such purposes shall be the person whom the Collector subject to any decree or order of a competent Civil Court may recognize or nominate as such landholder in accordance with rules to be framed by the State Government in this behalf.”
Madras Estates Land Act, 1908- Section 7 - Reservation of mining right- “Nothing in this Act shall affect any right of a landholder to make a reservation of mining rights on admitting any person to possession of ryoti land.”
(8) Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Section 3(b) - “The entire estate including minor imams (Post- settlement or pre-settlement) included in the assets of the zamindari estate at the permanent settlement of that estate; all communal lands and porambokes; other non-ryoti lands; waste lands; pasture lands; Lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries; and ferries, shall stand transferred to the Government and vest in them, free of all encumbrances; and the Andhra Pradesh (Andhra Area) Revenue Recovery Act, 1864 the Andhra Pradesh (Andhra Area) Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to the estate;”c
(9)--- State Of Andhra Pradesh v. Duvvuru Balarami Reddy, AIR 1963 SC 264
(10)- Raja Anand Brahma Shah v. State Of Uttar Pradesh And Ors, AIR 1967 SC 1081
(11)- The Special Tahsildar v. Kamalagangi Reddy And Others, AIR 1990 AP 124
(12)- State Of Karnataka v. Dundamada Shetty, ILR 1993 KAR 2605 Also see State of Tamil
Nadu v. Hind Stone Etc, 1981 KLT OnLine 1004 (SC) = AIR 1981 SC 711
(13)- State of West Bengal v. Kesoram Industries, AIR 2005 SC 1646
(14)- Mineral Area Development Authority v. Steel Authority of India, 2011 (2) KLT Suppl.2(SC) = (2011) 4 SCC 450
(15) Thressiamma Jacob & Ors v. Geologist, Department Of Mining (2013) 9 SCC 725. The maxim is not quoted in the Judgement.
(16)- State of Meghalaya v. All Dimasa Students Union, Dima Hasao District Committee, (2019 (3) KLT OnLine 3017 (SC) = (2019) 8 SCC 17
Common Civil Code —Is it Unknown to Indian Legal System?
By Devi A.R., Section Officer, Law Dept. Govt. Secretariat, TVM
02/06/2020Common Civil Code —Is it Unknown to Indian Legal System?
(By Devi A.R., Section Officer, Law Department, Government Secretariat, Trivandrum)
Common Civil Code or Uniform Civil Code implies the uniform set of rules applicable to the entire people of the country irrespective of their personal laws. Article 44 of the Indian Constitution requires the State to strive to secure for Citizens of India a uniform civil code throughout India.1 As per the constitutional provisions the Directive Principles of State policy shall not be enforceable by any Court of law.2 Article 44, being the part of Directive Principles of State Policy its non implementation cannot be challenged before any legal forum.
From the very beginning of the constitutional life itself the implementation of Common Civil Code became an immense question. Except the directive in Article 44, all most all other directives are considered and implemented by the State through its enactments.At various times the Highest Court of the territory, the Law Commission Reports and other various socio-legal forums discussed about the implementation of common civil code. Recently, the 21st Law Commission submitted its report on the consultation paper on family law reforms and recommended that uniform civil code is neither necessary nor desirable at the point of time.3
Common Civil Code during the Pre-constitutional epoch
Implementation of the common set of personal law in the country is a disconcerted issue from the British rule to till the date. During the colonial era itself the discussion over the implementation of uniform set of law took place. In the pre constitutional era especially in the colonial period itself codification of personal law was in said discussions. The Lex Loci Report of October 1840 recommended for codification of law relating to crimes, evidences and contract but it suggested that personal laws of Hindus and Muslims should be kept outside such codification. The Queen’s Proclamation1859 promised absolute non-interference in religious matters.
Constitutional Assembly Debates on Common Civil Code
Common Civil Code found place in Article 35 of the draft constitution and the committee suggested the article in the following words
“35. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Several amendments were proposed in Article 35 by various Muslim members but the Drafting Committee Chairman took an adamant view for the inclusion of the provision without any alteration or modification, subsequently, the motion was negatived by the drafting committee and the same article found place as Article 44 in the approved Constitution.
Observation of the Apex Court’s on implementation of Common Civil Code
Observation of the Apex Court in certain cases about the implementation of Article 44 is very pertinent to be noted. In Mohd.Ahmed Khan v. Shah Bano Begum4 the Honb’le Apex Court observed “Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a Common Civil Code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which is charged with the duty of securing a Uniform Civil Code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A beginning has to be made if the Constitution is to have any meaning”.
InSarla Mudgal, President, Kalyani & Ors.v Union of India5The Honb’le Justice Kuldip Singh J. observed “It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments - which have come and gone - have so far failed to make any effort towards “unified personal law for all Indians”…Where more than 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘Uniform Civil Code’ for all the citizens in the territory of India.”
In John Vallamattom and Anr. v. Union of India6Honb’le Chief Justice V.N.Khare observed “I would like to state that Article 44 provides that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society.”
Recently, the Honb’le Supreme Court in the Jose Pailocoutinho v. Maria Luiza Valentina Pereira & Anr.7Observed that Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights. At Para 20 of the judgment the Court have made some pertinent observation on the implementation on the directives in Article 44:-
“20.It is interesting to note that whereas the founders of the Constitution in Article 44 Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code through out the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in the case of Mohd. Ahmed Khan v. Shah Bano and Sarla Mudgal & Ors. v. Union of India & Ors.”
21st Law Commission Report on Common Civil Code
The Ministry of Law and Justice made a reference to the 21st Law Commission of India to examine the matters in relation to uniform civil code. Subsequently the Commission presented its consultation paper on reform of family laws in India in August 2018.8The Commission opined that Uniform Civil Code is neither desirable or nor wanted at this point of time. At Para 1.13 Commission criticized the judgment in Shah Bano Begum’s case and made the following observation:
“1.13. However, the judgment does not acknowledge the history of attempts made towards reforming family laws in the country. The State is an ‘enabler’ of rights rather than an ‘initiator’, particularly in sensitive matters such as that of religious personal laws…”
The report seems to be trying hard to meet the conclusion that the uniform personal laws are not warranted at the point of time. In order to substantiate this view Commission report categorically criticized the Apex Court’s landmark judgment in Shah Bano’s case and endorsed the observations in M.A.Pai Foundation’s case, which is neither warranted nor operative in the discussion on reforms in family law. The Commission focused on the every aspects of the personal law including Marriage, Divorce, Custody, Guardianship, Adoption, Maintenance, Succession and Inheritance. Commission had made suggestion for gender equality against the customs and usages Some of the suggestion are quoted below:
Para “2.2…At the same time marriage cannot be defined in religious terms alone, and religiously inspired gender roles and stereotypes cannot be allowed to come in the way of women‘s rights”.
2.21.“ If a universal age for majority is recognized, and that grants all citizens the right to choose their governments, surely, they must then be also considered capable of choosing their spouses.”
“2.42. Thus, it is important to retain the discretion of the Court in such cases but the availability of a no fault divorce must accompany community of self-acquired property. The Hindu Marriage Act, 1955, Special Marriage Act, 1954, the Parsi Marriage and Divorce Act, 1936, the Dissolution of Muslim Marriages Act, 1939 can be amended to reflect this.”
2.48 “….is also urged that a greater study be initiated into rights of all persons who are cohabiting as a conjugal unit”.
The above recommendations directly access the religious customs or so called religious freedom but at Para 2.4 it observed that. “Through codification of different personal laws, one can arrive at certain universal principles that prioritise equity rather than imposition of a uniform code in procedure...”The report recommends for the strong legislative interference in the personal law to meet the gender equality but when it comes to enactment of uniform set of personal law for the purpose it took a different view that uniform civil code is unwarranted at the point of time. That means the Law Commission is of the view that gender equality should be there in every personal law but it should not be uniformly enacted for different religious groups. The report failed to convince, if equality is to be attained within a religion outweighing religious rituals, why not it could be uniformed.
The report of the 21st Law Commission on the family law reforms seems to be against the constitutional provisions and the spirits of various judgments of the Apex Court starting from Shah Bano’s case to Jose Pailocoutinho’s case. It’s the high time to pay attention towards the following words of Dr.B.R.Ambedker, the Drafting Committee Chairman, in the Constitutional Assembly.
“…we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have Article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a Uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.”
The implementation of Uniform Civil Code always there in discussions from the pre constitutional era itself but no progressive steps achieved so far. In this regard, neither any Court ruling nor any reports of the Law Commission of India contributed more than that of the Drafting Committee Chairman debated in the Constituent Assembly. Common Civil Code is nothing novel or unknown to Indian Legal System. The issues or debates concerning implementation of Common Civil Code is already settled in the Constituent Assembly itself. Indian legal system is already in Common set of Civil Laws. The excluded area is only the personal laws. To get it be included in the Common Code what requires is only the legislative wisdom for it.
Foot Note:
1. M.P.Jain, Indian Constitutional Law,1386(2007).
2. Article 37, Constitution of India.
3. https://economictimes.indiatimes.com.
4. 1985 KLT OnLine 1235 (SC) = 1985 (1) SCALE 767 = 1985 (3) SCR 844 = (1985) 2 SCC 556 =AIR 1985 SC 945.
5. 1995 (2) KLT 45 (SC) = AIR 1995 SC 1531.
6. https://main.sci.gov.in/jonew/judis/19152.pdf (2003 (3) KLT 66 (SC)).
7. https://main.sci.gov.in/supremecourt/2008/32704/32704_2008_13_1501_16758_Judgement_13-Sep-2019.pdf.
8. Law Commission’s Report on Reforms on Family Law at pg.ii.
Amicus Curiae:The Role and Relevance in the Adversarial System
By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala
02/06/2020Amicus Curiae:The Role and Relevance in the Adversarial System
(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)
The jural profile of Amicus Curiaeis traceable to Anglo-American Common Law extending from as far back as the fourteenth Century, and Roman Law1. The role and appearance of Amicus Curiae became a standard feature of litigation during the twentieth Century2. “Historically, Amicus Curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and advises the court in order that justice may be done, rather than to advocate a point of view so that a case may be won by one party or another.”3
The adversarial system or adversary system is the legal system found in the common law countries including our country. In the adversarial system, in contrast to inquisitorial approach, two advocates represent their parties’ case or position before a Judge who hears the matter. The adversarial system is the two-sided structure placing the plaintiff or prosecutor on the one side and the defendant or the accused on the other. Thus in an adversarial procedure, each party produces his own evidence tested by cross-examination by the other side and the judge sits like an umpire and decides the case only on the basis of such material as may be produced before him by both parties.
We have been following adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule. It has become a part of our conscious as well as sub-conscious thinking that every judicial proceeding must be cast in the mould of adversarial procedure. The adversarial procedure has become a part of our legal system because it is embodied in the Code of Civil Procedure and the Indian Evidence Act4.
The present justice-system needs to be galvanized to systemic change in the present day vague status of Amicus Curiae by defining the parameters of amicus activity to assure justice and to act in the public interest. In many cases, the Court acts upon the assumption of the possession of inherent power keeping the contours of the amicus concept nebulous and within the realm of judicial discretion. One such illustrative example is found in the judgment dated 05.12.2019 in O.P.(CAT) No.207 of 2019 (A.Anilkumar v. Union of India & Ors.)reported in 2019 (4) KLT SN 59 C.No.76). In the above case, the writer of this Article was appearing for the petitioner and the contesting respondent was represented by a Senior Advocate. The Union of India was represented by the Assistant Solicitor General of India, the State Government was represented by the Senior Government Pleader and the Union Public Service Commission was represented by the Standing Counsel. It is worthy of attention that no party in the above case remained unrepresented and no party was placed at a disadvantage on account of non-representation by advocates and the parties had proper and meaningful assistance of legal Counsel. The matter was argued elaborately for two working days by the Counsel appearing on all sides and the case was reserved for judgment on 04.09.2019. The judgement was pronounced on 05.09.2019. From the judgment it is seen that an advocate was allowed to argue as Amicus Curiae. There was no unrepresented or unaddressed position of law or overlooked precedent or facts which put any of the parties of the case to any disadvantage for inviting an Amicus Curiae to argue the case. No Amicus Curiae was appointed with notice to the counsel for the parties and no arguments were made by the Amicus Curiae in the presence of the Counsel appearing for the parties before the case was reserved for judgment. Thus the Counsel appearing for the parties did not get an opportunity to make counter arguments to the arguments of the Amicus Curiae. In the absence of unrepresented position, there was no discernible reason why the amicus curiae was appointed and allowed to argue the case. The judgement does not reveal what issues were posed and on what issues amicus participation was found needed and allowed. In the judgement there is no indication that legal questions were not squarely presented by a live controversy for the propriety of inviting an amicus to argue the case. The only reference in the judgement about the amicus participation is that the amicus curiae deserves rich encomium. It was an unusual procedure traversing beyond Court’s power of judicial review of the Order of the Tribunal which is subject to scrutiny before a Division Bench of the High Court. Such impropriety in the use of amicus curiae is an attempt at ‘judicial overreach’ and strikes at the legitimacy of the judicial process. The purpose of this Article is to unfold the reach and range of Amicus Curiae. The focus is on the legal parameters of using Amicus Curiae device, its extra-special role in the adversarial system, and the jurisdictional limitations in appointing Amicus Curiae in judicial review proceedings.
Amicus Curiae’srole is not to render service pro bono publico or as public interest legal service. Amicus Curiae may assist the court by providing an adversarial presentation when either side is not represented or when only one point of view is represented. Amicus Curiaecan supplement when both sides are represented but not effectively or adequately and thereby leading to injustice. Amicus Curiae may also draw the attention of the Court to broader legal or policy implications which may escape the Court’s consideration. The role play of Amicus Curiae is that of an impartial assistant to the Court and as Lord Justice Singleton thought, ‘a helper in the administration of justice’ whose task, is to assist in reaching ‘a proper result in the dispute between the parties’. Amicus Curiae is not given the status of a named party or real party in interest. Amicus Curiae also cannot take the control of the controversy in an adversarial fashion. Amicus Curiae activity can neither be equated with that of the parties to the litigation nor adorn full party status. Necessarily, Amicus Curiaeis not competent to initiate legal proceedings, file pleadings or otherwise exercise the rights of any of the litigants. The role ascribed to the Amicus Curiaeby the Court is the objective assistance and the duty of Amicus Curiae is to assist the Court with regard to the case and not with regard to any particular petitioner/party5. The traditional concept of amicus activity has to change its profile, its process, its range and gaze and must be co-related to our legal system. It is needed to improve the system of legality.
Article 39A of the Constitution, falling under Part IV-Directive Principles of State Policy is a fundamental constitutional directive and an interpretative tool for Article 21 which is a distinct fundamental right providing protection of life and personal liberty. The fundamental right under Article 21 includes detenu’s right to consult with legal advisor of his choice for any purpose, not necessarily limited to defence in criminal proceedings but also for securing relief from preventive detention or filing a Writ Petition or prosecuting any claim or proceeding, civil or criminal and is obviously included in the right to live with human dignity and is also part of personal liberty. Article 22 (1) of the Constitution of India mandates that no person shall be denied the right to consult and to be defended by, a legal practitioner of his choice. Section 303 of the Code of Criminal Procedure confers on a person accused of an offence before a Criminal Court, right to be defended by a pleader of his choice. Section 304 has been incorporated in the Code of Criminal Procedure directing the Court to assign a Pleader for the defence of the accused at the expense of the State where it appears to the Court that the accused has no sufficient means to engage a pleader for his defence. Thus right to free legal assistance is made available in cases where offences are punishable with substantive sentence of imprisonment and not when punishable with fine only.
In order to achieve the objective enshrined in Article 39A of the Constitution the Legal Services Authorities Act, 1987 (Act 39 of 1987) has been enacted to constitute Legal Services Authorities to provide free and competent legal service to the weaker sections of the Society. Section 12 of the Act 39, 1987 lays down the criteria for giving legal services. Section 13 relates to entitlement to legal services to those who satisfy all or any of the criteria specified in Section 12. In exercise of the powers under Section 27 of the Act 39, 1987, the Central Government made National Legal Services Authority Rules, 1995. The Central Authority in exercise of the powers conferred by Section 29 of the Act 39, 1987 made the National Legal Services Authority (Legal Aid Clinics) Regulations, 2011.
A Scheme has been made called “Supreme Court Middle Income Group Legal Aid Scheme” to provide legal services to the Middle Income Citizens by Middle Income Group Legal Aid Society6. The State Government in exercise of the power under Section 28 of the Act 39, 1987 have issued the Kerala Legal Services Authorities Rules, 1998. The State Authority in exercise of the power under Section 29A of the Act 39, 1987 framed the Kerala Legal Services Authority Regulations, 1998.
Rule 183(1) of the Kerala High Court Rules, 1971 mandates that an Advocate shall be engaged at the cost of the State to defend an accused person who has not engaged an Advocate and who is under sentence of death or has been called upon to show cause why a sentence of death should not be passed on him or in any appeal filed under
Section 417 of the Code where a sentence of imprisonment is imposable. In any other cases, an Advocate may be engaged at the cost of the State, if the Court considers it necessary in the interest of justice. Rule 183(2) of the Kerala High Court Rules, 1971 empowers the court, in other cases, to engage an Advocate if it considers it necessary ‘in the interest of justice’ to defend an accused applying the ejusdem generis rule. These provisions manifest the intention to limit the requirement of providing an Advocate at the cost of the State only to an accused belongs to the weaker section of the society. Under the spell of the interdict contained in the aforementioned provisions, there is statutory restraint on the High Court from granting audience to solicited Amicus Curiae for and on behalf of those who fall outside the categories of persons who are otherwise entitled to ‘legal service’ under those provisions.
The Supreme Court in the decision inBandhua Mukti Morcha v. Union of India (1984 KLT Online 1212 (SC) abandoned the laissez faire approach in the judicial process where it involves a question of enforcement of fundamental rights for the purposes of making fundamental rights meaningful for the large masses of people. A three Judge Bench of the Supreme Court in the above decision held that where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the Court. Therefore, when the poor persons come before the Court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the Court for the purpose of securing enforcement of their fundamental rights. The Supreme Court went on to hold that the principles adumbrated in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must equally apply in relation to the exercise of the jurisdiction by the High Courts under Article 226 of the Constitution. It has been further clarified that the High Courts under Article 226 are required to exercise the jurisdiction for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of the Statute and they need to be enforced as urgently and vigorously as fundamental rights. The above decision has been fully approved by a Constitution Bench of the Supreme Court in the decision inM.C.Metha v. Union of India.7
Articles 226 and 227 of the Constitution of India comprise of Civil and Criminal as well as other proceedings. ‘Civil proceedings’ would cover all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute and claims relief for breach thereof. In a ‘civil proceeding’ the powers of the High Court extends to issuing orders, writs or direction as may be considered necessary for enforcement of the fundamental rights and for any other purposes as well 8. The scope of the power conferred under Article 226 and 227 of the Constitution in a ‘civil proceeding’ is to advance justice and to see whether injustice has resulted on account of failure to enforce law or of any erroneous interpretation of law. In a supervisory jurisdiction the High Court is to ensure that statutory powers are not usurped, exceeded or abused and that duties owed to the public are duly performed. There is no provision parallel to Section 482 of the Code of Criminal Procedure saving the inherent power previously existed or vested in the High Court in a ‘civil proceeding’.
Under Section 482 of the Code of Criminal Procedure, 1973 inherent power is conferred upon the High Court to be invoked in criminal jurisdiction. In the decision in Raghubir Soran v. State of Bihar9 the Apex Court has held that every High Court as the highest Court exercising criminal jurisdiction in a State has inherent power to make any Order for the purpose of securing the ends of justice. The High Court while exercising supervisory jurisdiction of judicial review cannot claim or assert inherent power as it would involve a wrongful usurpation of authority.
The High Court is a superior court of record and Article 215 of the Constitution states that every High Court shall be a court of record meaning thereby all the original record of the Court will be preserved by the said Court and it shall have all the powers of such a superior court of record including the power to punish the contempt for itself. The High Court has power to determine the question about its own jurisdiction. A conjoint reading of Section 108 of the Government of India Act, 1950, Section 223 of the Government of India Act, 1935 and Article 225 of the Constitution of India makes it clear that every High Court by its own rules can provide for exercise of its jurisdiction, original or appellate. There is no law either saving the inherent power existed before the commencement of the Constitution or vesting inherent power on the High Court for the exercise of the supervisory jurisdiction of judicial review under Articles 226 and 227 of the Constitution.
The Code of Civil Procedure is an Act of Parliament to consolidate the laws relating to the procedure of the Courts of Civil Judicature. Section 151 of the Code of Civil Procedure saves the inherent power of the Court to make such Orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The power relates to matters of procedure. Explanation to Section 141 of the Code of Civil Procedure expressly provides that the expression “proceedings” does not include any proceeding under Article 226 of the Constitution. Therefore, the inherent power of the Court recognized in Section 151 of the Code is expressly excluded from any proceeding under Article 226 of the Constitution. \ Rule 150 of the Rules of the High Court of Kerala also does not confer upon the High Court inherent power while exercising power of judicial review under Article 226 and 227 of the Constitution of India. Inevitably, exercise of inexistent inherent power by the High Court in a civil proceeding under Article 226 of the Constitution in conflict with what has been expressly provided in the Code or against the intentions of the Legislature would amount to acting outside the limits to the Court’s functions in judicial review proceedings and overstepping its jurisdiction under Articles 226 and 227 of the Constitution.
In the decision in Mohammed Ajmal Mohammad Amir Kasab v.. State of Maharashtra10it has been held that according to our system of law “The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those provisions are faithfully adhered to in practice”. Signally, appointing amicus curiae in a civil proceeding under Articles 226 and 227 of the Constitution without the sanction of law and upon the assumption of the possession of inherent power to act ex debito justitiae is outside the jurisdiction, power and authority of the High Court.
It is not without significance to clarify that appointment of Amicus Curiae cannot be taken as a suo motuaction in exercise of the power of judicial review under Article 226 of the Constitution of India. Suo motupower is exercised for constitutional and legal violation adversely affecting the interests of the disadvantaged and destitute group.
Suo motuaction does not fall within the power of judicial review. “The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of the statutory authority is alleged.”11 Therefore, appointment of Amicus Curiae cannot be made suo motu as in the case of taking cognizance of infringement of violation of fundamental rights of the disadvantaged in matters relating to and involving in Public Interest Litigation.
Our Courts cannot by themselves invent a jurisdiction not conferred on them by the Constitution and the Legislature. The Courts have to function within the established parameter and the Constitutional bounds. Decidedly, a law laying down the proper role of, the objectives, strategy and the criteria for appointment of Amicus Curiae by the judges is a desideratum. Amicus Curiae is to be deserved and preserved in matters of public importance or in which the interest of the public at large is involved and for seeking assessor-assistance where specialist knowledge and expert advice are called for in complex case situations. The role of Amicus Curiae in matters of public determination of certain medical questions that may arise in social security adjudication and other cases involving novel questions or matters of significant public import, is indispensable. Concomitantly, over reliance on Amicus Curiae briefs and submissions without sufficient vetting and without checking up hidden bias is likely to affect the decision making process and probable outcome of the case. Unregulated Amicus practice can exacerbate the qualities and constitutionality of the decision making. Increasing frequency without any rhyme or reason in soliciting Amicus participation has the tendency to transform its role as a ‘friend of the court’ to ‘friend of the party’ or ‘lobbyist of the Court’. In this summons a renaissance in law-ways is necessitus to cast amicus silhouette. All that is needed is new law as a perspective-setter to set down the targets and methods of law governing Amicus Curiaein the adversary system.
Foot Note:
1. Earnest Angeli, The Amicus Curiae: American Development of EnglishInstitutions, 16 INT’L & COMP. LQ, 1017,1017 (1967).
2 Herbert Jacob, Justice in America: Courts, Lawyers and the Judicial Process (1984).
3. Cmty. Ass’n for Restoration of Env’t (CARE) v. DeRuyter Bors. Dairy, 54F, Supp.2d 974, 975 (E.D.Wash.1999).
4. Bandhua Mukti Morcha v. Union of India (1984 KLT OnLine 1212 (SC) = AIR 1984 SC 802) .
5. Mukesh & Anr. v. State (NCT Delhi) (2016) 14 SCC 416. = 2017 (2) KLT SN 81 (C.No.114) SC.
6. Middle Income Citizens by Middle Income Group Legal Aid Society 109, Lawyers’ Chamber, Post Office Wing, Supreme Court Compound, New Delhi-110 001.
7. 1987 (1) KLT OnLine 1011 (SC) = (1987) 1 SCC 395.
8. AIR 1954 SC 440.
9. AIR 1964 SC 1.
10. 2012 (3) KLT SN 136 (C.No.142) SC = (2012) 9 SCC 1. (para 475).
11. Roshina T. v. Abdul Azeez (2018 (4) KLT 1353 (SC) = (2019) 2 SCC 329.