Section 24 Cr.P.C. - Time to Revamp
By P. Rajan, Advocate, Thalasserry
03/12/2019Section 24 Cr.P.C. – Time to Revamp
(By P.Rajan, Advocate, Thalassery)
Section 24 of the Code of Criminal Procedure 1973 states about appointment of Public Prosecutors for High Courts and District Centers, also Addl. Prosecutors, to represent the Centre as well as the State as the case may be, after adhering to the procedural compliances detailed in the sub-sections thereunder. Of late selection/appointment of Public Prosecutors became a matter of controversy leading to legal procedures reason being primacy of the aspirants relating to extraneous considerations mainly political patronage became the key yardstick. Panel of lawyers by the District Judge to the District Magistrate is the primary step for the appointment at District Centers. This formality is just a routine exercise as it is no secret that Judge’s role in the process of selection is nil. This practice should be avoided by inserting requisite amendments and the Judges of the High Court and other Courts in the State have a say in appointing prosecutors to represent the State before them. It is no gainsaying that a Judge is the best judge to judge a lawyer. In short an aspirant for the post of prosecutor must be before a team of Judges to know of his/her caliber and experience; even if some officers may not be familiar with the person. Lawyer-mediators and amicus curiaadvocates are being selected after some enquiry about the performance of the concerned person in courts, by the senior Judge of that center, even though his effort is minimal.
A glaring example of unsatisfactory conduct of the prosecution; lack of vigilance, during trial became a sensitive issue in the State - the Walayar (Palakkad) Dalit Siblings Death Case as the matter ended in acquittal. Shoddy probe by the Police, the prosecution urges as the ground for the verdict. Lapses on the prosecution side seems to be the vital reason as per the narration of the relatives of the deceased. In short blame game is no explanation for the judgment of acquittal in the case. If the investigation was defective, before opening of the case, the prosecutor in charge could have brought the fact to the notice of the Court as the matter is quite serious. Section 226 of Cr.P.C., the prosecutor as well as the defence have to follow before the matter goes for trial and if the charge appears to be groundless even an order of discharge under S.227 is possible. At this stage itself the lawyer in charge of the case can take appropriate steps,; even further investigation or approach the High Court for suitable direction, avoiding haste to put the matter for trial. If charge seems to be defective, change of charge even before the judgment is permitted under law, and if the death is not homicidal, medical evidence suggests sexual assault, a charge under S.306 I.P.C. on the ground of abetment could have been brought to the notice of the Court. The Godhra Massacre (Gujarat), charge sheeted even political big wigs, tried and acquitted but Apex Courts’ intervention resulted in fresh trial before another State, verdict became favourable to the Prosecution. This judgment is a rare but remains unchanged. Prosecutor is integral part of sessions trial as the appointment is a compelling constitutional necessity. Consultative process envisaged in selection when becomes mere formality result would be drastic. The much discussed siblings’ death case, the facts are not inscrutable and the Supreme Court Judgments favour the prosecution even regarding appreciation of evidence.
Change of Ministry at the national level also paves way for the lawyers representing the Centre and States to resign or accept termination orders and new persons are getting recruited. This itself shows the modalities of the selection and extraneous considerations which play pivotal role than the performance of the persons concerned. Prosecutor is not a protagonist of any party and in theory he stands for the State’s aid to act impartially as an officer of the Court. Withdrawal of serious cases under S.321 Cr.P.C. is another example of political patronage often being done without considering the gravity of the crime and the interest of the victims. The usual expression- public interest always seems to be the reason for withdrawal, but Court’s alertness basing on the Apex Court Judgments become solace to the aggrieved. Criminal Trial is not a fairy tale and the prosecutors role in the conduct of criminal trials is very vital. Unless the selection process even regarding Special Prosecutors is changed the State’s interest so also the Victims grievances cannot be addressed. Recently prosecutors are appointed to conduct POCSO cases outgoing prosecutors had challenged the appointments, also sought extension. When data were called for, of the incumbents few are not competent not strictly on legal grounds but on other reasons, should not have jumped on the band wagon. Many new laws are being promulgated by the Centre but age old provisions like S.24 Cr.P.C. remains unchanged, calls for necessary changes for better administration of justice.
……………
A High Court lawyer hailing from a very affluent family with sufficient political clout had desired to become prosecutor and at the drop of a hat obtained the order from the Ministry. When performance became abysmal judgments became the right proof- matter cropped up as an issue of discussion before the authorities. Decision came soon to make him a High Court Judge - no written test or viva voce during that time also - no collegium system either- let the ordinary litigants assess the performance as the Government would not be a great looser. This anecdote might be wishful imagination of an alert legal mind but that imagination was not a staggering one.
Judicial Orders Against the Maxim “Lex Non Cogit ad Impossibilia”
By Sajeer H., S.O., Law Dept.,Govt.Secretariat,
03/12/2019Judicial Orders Against the Maxim “Lex Non Cogit ad Impossibilia”
(By Sajeer H., Section Officer, Law Department, Govt. Secretariat, Thiruvananthapuram)
The title maxim means law cannot compel to do an impossible thing. It is the general rule in criminal law that a wrong doer is only to be punished and not the person who represent him. If a company or society done a wrongful act, other than an act in Section 138 of Negotiable Instruments Act, a criminal liability or personal liability is to be fastened against that juristic persons and not against its representatives.
K.H.Singla v. Avatar Sing Saini & Ors.(1 (2019) CPJ 3 (SC) our Apex Court has expressed a doubt as to “whether the default committed by the secretary of a co-operative society, in absence of any personal liability imposed, be imprisoned under Section 27 of the Consumer Protection Act, 1986”. But the doubt was not finally cleared in its above judgement. Therefore, it is an attempt to swim, against the flow of prosecutions towards personal liability against Company Directors and Secretaries of societies.
The factual matrix of the case aforesaid was that, the Chandigarh State Bank of Patiala Employees Co-operative Credit Society had been undergoing liquidation process and a liquidator was appointed. The Complainant in the above case filed a complaint before the District Consumer Disputes Redressal Forum. The Forum directed the society to pay the maturity amount along with interest @ of 10 percentage per annum. In addition to the award, an amount of rupees 10,000 was passed as compensation. Rupees 500 was also ordered as cost. Aggrieved by the order of the District Forum the society had preferred an appeal before the State Commission. In appeal the order of the District Forum was upheld by the State Commission. Alleging that the society has not paid the maturity amount along with the interest as ordered by the District Forum, the complainant approached the District Forum by way of application under Section 27 of the Consumer Protection Act. The District Forum sentenced the appellant therein for two years simple imprisonment and imposed a fine of rupees 5000. It was further ordered that in case of failure to deposit the fine the appellant shall undergo further simple imprisonment for a term of three months.
Aggrieved by the order of the District Forum the appellant had preferred an appeal before the State Commission. The State Commission had passed an interim stay order subject to the condition that the appellant shall deposit the entire amount as ordered by the District Forum within a period of eight weeks from the date of the order. The society had preferred a revision before the National Commission and the said revision petition was subsequently withdrawn by seeking liberty to file appeal. The appeal was preferred and the same was dismissed with the finding that “appellant had shown his inability to pay the decretal amount”. Under those circumstances the District Forum convicted the appellant and sentenced him with simple imprisonment of two years.
The appellant preferred appeal before the National Commission. The National Commission dismissed the appeal by confirming the order of the State Commission. Against which an appeal was preferred before the Honourable Supreme Court.
Disposing the appeal Honourable Supreme Court held that “it is to be noted that there is no order passed by the District Forum against the secretary, the appellant, in its individual capacity. The appellant was shown as the secretary of the society during the relevant period. For the default committed by the society and in absence of any personal liability imposed on the appellant, the appellant is to be imprisoned under Section 27 of the Act is doubtful.
Section 27 of the Consumer Protection Act, empowers the District Forum, State Commission and National Commission as the case may be, to impose the penalties. It empowers the authorities to pass an order to punish a person with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine , in the case of trader or a person against whom the complaint is made omits to comply with any order passed by the authorities.
Person as per Section 2(m) of the Consumer Protection Act is that, it includes a firm whether registered or not, a Hindu undivided family, a co-operative society, every other association of persons whether registered under Societies Registration Act, 1860 or not. This section never mention the term “or any representatives”. As far as the Consumer Protection Act is concerned, when a criminal action is proposed against a juristic person the liability only rest upon it and not against its representatives.
The term “personal liability”, in Cambridge Dictionary, means “the fact of a person, rather than a company or organisation, being legally responsible for something. In the case of accident personal liability occurs in or out of your home, which results in bodily injury or property damage that you are held legally responsible for. In Black’s Law Dictionary personal liability means, any financial loan that must be paid for by an individual usually taken from his/her assets.
Here it means that when an act of the person directly and substantially causes damage to another, then he is to be personally liable in the eye of law. But a person acting on the representative capacity and done this in good faith then he cannot be personally liable for the wrong caused by the company.
Section 141 of the Negotiable Instruments Act is an exception to the above provision. It says that, If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Here the personal liability arose only on the offence committed under Section 138 of the Negotiable Instruments Act only. The director, Manager, Secretary or other officer of the company may be changed from time to time. One person who act upon as the Director, Manager, Secretary or other officer of the Company during the occasion of the offence committed may not be the Director, Manager, Secretary or other officer of the same company in the verdict time. But it is specifically said in Section 141 of the N.I. Act that the Director, Manager, Secretary or other officer shall deemed to be liable and punished. No where in the provision says the word personal liability. More over the proviso to Section 141 says , “Provided that, nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution”.
On a conjoined reading of Section 141 and its proviso it is crystal clear that a person is not personally liable in 138 offences if he proves that the offence was committed without the consent or knowledge of him. More over no personal property of him is liable for that offence.
Here in Section 27 of the Consumer Protection Act, its area is far more different than that of Section 138 of the Negotiable Instruments Act. Section 27 of the Consumer Protection Act says that “Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both”. Nowhere in the section declares that a person is not personally liable under this section if he proves that the offence was committed without the consent or knowledge of him. Therefore, if an offence committed by a Company, the Company shall be liable for the same but no coercive steps can be taken against the Director, Secretary and staff of the Company.
It is highly inadvisable to punish a Director, Secretary or staff of a Company personally and put them behind bars for the reason of the act they done in good faith in pursuance of a duty.
Article 20 of the Constitution of India reads, no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. When a Director or Secretary who representing a Company or Co-operative Society respectively, he is only representing that Company or Firm and so he could not be impleaded nor proceeded in its individual capacity or no liability can be fastened against him.
Section 2(m) of the Consumer Protection Act is clear that a person as inclusive of a firm whether registered or not and where a person proceeded is a firm or company a sentence of imprisonment against it is not possible.
In ANZ Grindlays Bank Ltd. v. Directorate of Enforcement(2005 (2) KLT 876 (SC) ) Honourable Supreme Court held that “a company cannot be sentenced to imprisonment, it can nevertheless be prosecuted and the court can impose punishment of fine instead.”
Law does not compel the doing of impossibilities. It is impossible to arrest and detain a company. But a representative of it can be arrested and detained on the actions done by him during the time of his tenure. A company or society may have many branch offices in different places. Different managers or secretaries should be appointed or posted in such branches. They may be new persons in that post and so they may not aware about the financial dealing of the company or the society. If an execution order is to be passed against the office bearers of the company or society and as a result the Managing Director or the Secretary is too arrested and sentenced to three years imprisonment for the wrong act of the Company, Society or Firm, then that is against the provisions of Article 21 of the Constitution of India. Any order passed against ANZ Grindlays Bank Ltd. v. Directorate of Enforcement(2005 (2) KLT 876) (SC) may be per incurium. In that aspect, the court can impose fine upon the company or society and if they are reluctant to pay the amount, its properties can only be attached.
Section 320 Cr.P.C. – Need for Amendment
By Devi A.R., Section Officer, Law Dept. Govt. Secretariat, TVM
02/12/2019Section 320 Cr.P.C. – Need for Amendment
(By Devi A.R., Section Officer, Law Department, Govt.Secretariat, Trivandrum)
The basic aim of every criminal justice administration is to punish the offender and thereby maintain the social order and peace. It also aims to prevent others from doing the same offence and to satisfy vengeance of the victim and the society against the offender. In accusatorial system of trial, in every offence, State is the de jurevictim and de factovictim is a witness. In certain cases the State dilutes its stand against the accused and the de facto victim is allowed to compound the offences with the accused either with or without the permission of the court, as the case may be.
Compounding in the context of criminal law means forbearance from the prosecution as a result of an amicable settlement between the parties. (237th Law Commission Report at p.6). In cases of compounding of offences the role of the State became meagre and the victim is allowed to compound the offence with and without the permission of the court. Section 320 of the Criminal Procedure Code listed the offences which can be compounded wherein sub-clause (1) listed the offence which could be compounded with the permission of the court and sub-clause (2) listed the offences which could be compounded without the permission of the court. The provision detailed in Section 320 of the Code of Criminal Procedure 1973 corresponds to Section 345 of the Code of Criminal Procedure 1898, with minor alterations.
Criminal Law amendments on compounding of offences
Cr.P.C. Amendment Act, 2005
The amendment Act omitted Section 324 from the list of compoundable offence. After this amendment came into force the total number of compoundable offence is 56 in the table, under sub-section it is 21 and in table under sub-section (2) it is 35 as against 57 earlier.
Cr.P.C. Amendment Act, 2008
The tables forming part of Section 320(1) and (2) underwent changes. As recommended by the Law Commission Report No 154 and 177 a numerous offences listed out in the table under sub-section (2) was shifted to the table under sub-section (1). In consonance with the 41st report of the Law Commission the amendment omitted Section 354 (assault of women with intent to outrage her modesty) from the list of compounding of offences. Section 312 was included in the table under Section 320(2). After the Cr.P.C. (Amendment) Act, 2008 the number of compoundable offences are 56.43 in the Table under sub-section (1) of Section 320 and13 in table under sub-section (2).
Variance of opinion on Compounding of Offences in different Law Commission Reports
Law Commissions at different times submitted reports on the scope of compounding of offences in the Criminal Procedure Code. These recommendations exposed several variances. 41st report rejected the proposal of enlarging the list of compounding of offence and also framing general rule for determining the compoundablity of offences. Whereas the 154th report recommended that more offences shall be brought into the category of compoundable offences by the parties without the intervention of the court except those offences against the public at a large. It was also suggested for the inclusion of sub-section (3A) as suggested in clause 20 of 1994 Bill to the extent that it empower the investigating officer to compound offences, which are compoundable, at the investigation stage and make a report to the magistrate who will give effect to the compounding of such offence the Commission also opined that this will reduce the number of cases proceeding for trial at the threshold stage itself and relieve the court docket to great extent.
177th report also supported the 154th report in this regard. But the 237th report suggested that the Courts are flooded with cases and, therefore, more and more offences should be identified for compoundability is only a secondary consideration. It also recommended against vesting the authority on the investigating police officer to make recommendation for compounding the offence. Regarding Section 324 the 154th Law Commission Report recommended for shifting it to table under sub-section (1) so that it could be compounded without the permission of the court and 177th report recommended for retaining it in the table.
Views of the Apex Court on Compounding of non compoundable offences by the High Courts
In B.S.Joshi v. State of Haryana(2003 (2) KLT 1062 (SC) the accused was charged under Section 498A and 406 I.P.C. later, when the parties came to settlement they approached the High Court to quash the F.I.R. by exercising its inherent jurisdiction under 482 Cr.P.C. The High Court declined to exercise inherent power to quash the F.I.R. on a non compoundable offence. On appeal the Apex Court observed that Section 320 would not be a bar to the exercise the inherent power to quash an F.I.R. for the purpose of securing ends of justice. The observations of the Apex Court accredited the power of the High Court to exercise inherent jurisdiction against an existing statutory provision. Later the judgments in Nikhil Merchant v. C.B.I.(2008 (3) KLT 769 (SC) and Manoj Sharma v. State & Ors. (2008 (4) KLT 417 (SC) = (2008) 16 SCC 1),Shiji @ Pappu & Ors. v. Radhika & Anr. (2011 (4) KLT 682 (SC)Gian Singh v. State of Punjab etc.(2012 (4) KLT 108 (SC) witnessed the legal dictum in B.S.Joshi’ scase. In State of Rajasthan v. Shambhu Kewatcase (2014 (1) KLT Suppl.32 (SC), the Hon’ble Apex Court held the view that powers under Section 482 can be exercised for compounding of a non compoundable offence but in the case at hand it made the following sturdy and pertinent observations;
“…. Why Section 307 I.P.C. is held to be non-compoundable, because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant, just to protect the individual, but the society as a whole. …Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society at large.”
In Narinder Singh v. State of Punjab(2014 (2) KLT SN 45 (C.No.61) SC) contra to the judgment inShambhu KewatCase, the Hon’ble Apex Court quashed the criminal proceedings under Sections 307, 324, 323, 34 I.P.C. relying on the judgment in Dimpey Gujral v. Union Territory through Administrator(2012 (4) KLT Suppl.81 (SC) and on the observation in Gian Singh’scase that the offence under Section 307 of the I.P.C. is of a personal nature and not offences against the society.
In order to remove the disparity between its two decisions, in Narinder Singh v. State of Punjab and State of Rajasthan v. Shambhu Kewat,The Hon’ble Apex Court in State of Madhya Pradesh v. Laxmi Narayan(2019 (2) KLT OnLine 2025 (SC), issued guidelines to be followed by the High Court while exercising the powers under Section 482 against Section 320.
The guidelines issued by the three Bench in State of Madhya Pradesh v. Laxmi Narayan,is a requisite in the judicial setup for avoiding conflicts in the judicial decisions. But if there is any perplexity in the existing legal provisions or the existing one is inadequate to meet the ends of justice it should be taken notice by the Legislature. The Legislature is the authority which is supposed to make additions/deletions through legislative amendment in the existing provisions or to make new laws to meet changing societal needs.
Number of Petitions being filed before various High Courts under Section 482, for compounding of non compoundable offence, indicates the need of legislative intervention on the policy towards compounding offences. Section 320 may be modified to the extent that;
• The title to Section 320 ‘Compounding of offences’ may be amended as ‘Compoundability of Offences’
• Sub-section (1) may list out offences which are strictly non compoundable at any instance. The offence to be included in may be identified after proper study and it should be kept beyond the exercise of inherent powers of any legal forum.
• Sub-section (2) may list out the offence which could be compounded only with the permission of the court.
• Section 320A may be added to the effect that the offences coming under special statutes may be made compoundable by fixing a general criteria like, the offence for which the maximum punishment prescribed is imprisonment for 3 years is compoundable etc.
As the entire issue discussed is coming under the field of legislative domain, the above detailed suggestions are put forwarded before the legislative wisdom to consider.
A Note on The Decision Reported In 2019 (4)KLT 544
By N. Subramaniam, Advocate, Ernakulam
02/12/2019
A Note on The Decision Reported In 2019 (4)KLT 544 –
Gangadharan C.K. v. Kumaran And Others Rendered by His Lordship Hon’ble Justice P. Somarajan on 10.10.2019 on Law of Pre-Emption
(By N.Subramaniam, Advocate, High Court of Kerala)
1. At the outset itself, with respect to His Lordship, it is to be stated that the above decision is a complete dictionary by itself on the Law of Pre-emption.
2. His Lordship has found and ruled that it has brought to the notice of all that “a right of pre-emption was really unknown to Hindu law. Its origination is from the Mohammedan Law and applied to both Hindus and Muslims based on equity and good conscience. But it was not regulated by statutory law except in Punjab and Agra. In so far as Muslims are concerned, right of pre-emption forms part of their personal law, but among Hindus, the right of pre-emption mainly recognized as a customary right. No doubt, the right of pre-emption can also be created by a contract.
3. His Lordship has opined and ruled that “pre-emption is a right of claiming or purchasing property before or in preference to others, when it is put for sale. The basic-concept of pre emption right is to preserve and give protection to the property of family from being intruded by strangers claiming under any member based on any transfer of immovable property. In order to constitute a pre-emption right, it should be satisfied that, the pre-emptor should have some relation with respect to the property as a member of family, to which the property belonged and it must find a place in the document under which the property was given to the owner. In other words, the pre-emption right claimed should find a place in the document of conveyance either by gift, partition, settlement or sale and it may be either based on customary right or practice, prevailed. His Lordship also has found that a right of pre-emption can also be created by a contract between parties.
4. The right of pre-emptor between two different methods have been pointed out in the judgment in para 5 and that there need not be any lawful consideration for creating a preemption right, if it is based on custom or practice, provided it should be included in the document of title of the owner. But that does not mean that the pre-emption right created is valueless.
5. His Lordship has dealt with Section 40 of T.P. Act in this connection.
6. It is found that to create a right of pre-emption, no registration is necessary.
Tail Piece
1) Registration is not necessary for creating a right of pre-emption.
AIR 1923 Bom.226 & 227. (Tribhuvan Uttamram v. Vai Kushal).
2) Pre-emption - There is a conflict of opinion whether an agreement providing that if one of the parties thereto wished to sell his property or his share of the property the other party should have a right to pre-empt, is a document which creates of itself any interest in immovable property, or a document merely creating a right to obtain another document. It has been held by Madras High Court in Ramasami v. Chinnan (1901) 24 Mad.449, 461 in Tribhuvan v. Bai Kushal (1922) 47 Bom.283 in Kashi Kunbi v. Sumer Kunbi 73 I.C.666 (1923) A.B.226, (1910) 32 All. 206, 5 I.C.234.
Sabarimala – Religion Versus Secularism:
By M.K.S. Menon, Advocate, Supreme Court of India
02/12/2019Sabarimala – Religion Versus Secularism:
(By M.K.S. Menon, Advocate, Supreme Court of India)
A. By the order dated 14.11.2019, Majority of the 5 Judge Constitution Bench referred following issues to the 7 Judges Bench:
(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
(ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
(iii)The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.
(iv)The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
(v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
(vi)Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
(vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?
The above questions arose because the judgment in the main Writ Petition (here in after shall be referred to as main judgment) had mainly considered the judgment applying the principles of ‘Constitutional Morality’ coupled with ‘Untouchability’ an undefined offence. In support 4 Judges in majority took the assistance of Article 14, 15, 17 and 25(2)(b) to bring home the point. However Justice Indu Malhotra refused to read ‘Constitutional morality’ into Article 25 (Morality with a different degree of perfection other than an ordinary sense attributable to simple morality as understood by common man), because such an interpretation shall mutilate the Constitutional fabric. It is a fact that Article 14 is all pervasive and whereever there are exceptions drawn, appropriate safeguards are provided in those Articles in Part III of the Constitution, like “subject to public order, public morality and public health”. Reading it as “constitutional order, constitutional morality and constitutional health” would be an over board interpretation making the intention of the framers otiose. In her dissenting judgment she also went into the question of locus of the petitioners in the Writ Petition, who invoked the writ jurisdiction of the Hon’ble Court to decide an issue pertaining to a ‘believer’, to which admittedly the petitioners do not belong. In the nutshell she held that when Religious belief and freedom enshrined in the Constitution which accepts the spirit and essence of all religions cannot be permitted to be questioned by those who work against the religious beliefs as long as the religious practices. In fact those practises complained against, were not forced upon them by anyone including the State. Public Interest litigation cannot be resorted to pursue a personal interest (pursuing their own personal interest to propagate their own ideology) especially when none of the petitioners were ‘believers’. Then the question will arise as to whether on the basis of a hearsay statement appeared in a News Paper the petitioners are entitled to rake up an issue as a PIL especially when the right conferred by Article 14, 15 and 25 of Part III of the Constitution of India are personal rights, as we can see from the expression ‘any person’ or ‘any citizen’ in all these Articles. The Petitioner’s in the Writ Petition never had a case that the affected persons (mainly women believers in Kerala) belong to socially and financially deprived class, incapable of approaching the Hon’ble Court in any manner as a reasonable ground to justify maintainability. In a 100% literate society where women are not treated as chattels but considered as head of the family who holds the chattels, where men are married and brought in to the family under the matriarchal system (Marumakkathayam system of succession), calling them weaklings is rather an insult because they are the most upright women capable of questioning any illegality through the due process of law. Instead of leaving it to their discretion a busybody taking up the issue of ‘gender equality’ ought to have been thrown out at the threshold. It is for the persons who were affected by any religious practice, to come before the court and establish that his/her Fundamental Right stands violated. Mandate against the State in Article 25 does not confer power on any State to use the said Article to perpetrate anarchy in the guise of implementation of Part II of the Constitution. Duty of the State is to educate and enlighten the citizens as stated in para 66 in the dissenting judgment passed now (herein after shall be referred to as ‘reference order’).
B.‘Sati’ and ‘untouchability’ were crimes and eradicated by bringing in special legislations and not through tangent constitutional interpretations. Article 14 is all pervasive in the entire Constitution as stated earlier. There are some exceptions which may not be reflecting the spirit of Article 14 on the face of it because firstly none of these Fundamental rights are absolute and secondly in a country like India catering the expectations of thousands of different religious beliefs is not an easy job. That is why a general safe guard in Article 25 and 26 is provided as “subject to public order, public morality and public health”. Article 14 has it’s own limitations especially when it is not an absolute but abstract proposition.By adding the word “constitutional’ to the word ‘morality’ in Article 25 where by converting ‘Public morality’ into ‘constitutional morality’ has rather watered down the very intention in bringing in Article 25 into the Constitution. In that the farmers could have avoided the inclusion of the words ‘“subject to public order, public morality and public health” in Article 25. Hon’ble Supreme Court repeatedly held that it is for the State to fill up the lacuna in a legislation and the court shall not venture to travel into those slippery terrains. A mild bending may be permissible but not in a case where it affects a large section in the society and especially when it requires addition of words. Drastic deviation to convert‘exclusion of menstruating women from temple entry’ into an offence, especially when that interpretation is not evident on a simple reading of the constitutional provision inArticle 17 and that also by adding words which were not intended to be included by it’s framers in the Protection of Civil Rights Act 1955, has literally mutilated the Constitution. While interpreting a word ‘untouchability’ it is necessary to contain the historic background under which it found place in the Constitution. The definitions found in th dictionaries in circulation all over the world understood it as follows:
a. Oxford : (adj) That may not or cannot be touched; (n) a member of a hereditary Hindu group held to defile members of higher castes on contact
b. Webster: Hindu below the caste level.
‘Untouchability’ as a crime cannot be presumed because it is not defined through any legislation as required under Article 17. It is limited to those cases mentioned in Protection of Civil Rights Act 1955. Even in Civil Rights Act 1955 it is defined as such but is an offence intended by the legislature in the Act is discernible from the provisions. The present interpretation can probably lead to bizarre situation. Eg., if it is presumed that a ‘menstruating womon’ is prevented from having intimate and physical relationship during her menstruation cycle, husband can be charged for an offence of practising ‘untouchability’. It is so because the definition of “place” under Section 2(b) of Protection of Civil Rights Act 1955 includes a ‘house’. Husband’s denial amounts to practice of inciting ‘untouchability’ and can be punished under the Act. In a Hindu Temple, (except in Sabarimala) a muslim, Christian or members from other religion are not permitted to enter. In that case, the said action also is an offence of untouchability. A definition of an offence cannot arise out of a vague trance but it should be a definite declaration by the legislature as per the scheme of the Constitution. It is my humble understanding and suggestion, that stretching Article 17 of the Constitution to an extent beyond the comprehension of the framers of the Constitution (as that could be understood from the Constituent Assembly Debates during the framing of the Constitution) and also from the object and reasons under Protection of Civil Rights Act 1955,may not be helpful to bring in peace and prosperity in the society, which is the ultimate mandate of rule of law. Apprehension expressed by Professor K.T.Shah during Constituent Assembly Debates on framing the Constitution assumes importance at this juncture, which reads as follows:
“ .....Lack of any definition of the term ‘untouchability’ makes it open for busy bodies and lawyers to make capital out of a clause like this, which I am sure was not the intention of the Drafting Committee to make.”
Exactly the same situation is created by a group of activists in the present case.
C. Consequence of not staying a judgment which is only declaratory with no mandamus and executable direction :
While considering the impact of the present order referring the matter to the larger bench, it is trite to mention that there was no stay order passed in the matter, at the time of issuing notice but of course clarified at a later stage that there is no stay of the impugned order. However a stand taken by the court at the ad-interim stage has changed, as soon as the Hon’ble Court decided to reconsider the findings and conclusions arrived at in the main judgment in the Writ petition. As already stated, it is for the affected citizen to complaint to the executive and if they fail, the citizen is entitled to approach the court alleging that the 2nd limb of the Constitution is limping instead of implementing their valuable right under Part III of the Constitution. Such a situation did not arise in the present case so far. Only the over enthusiasm of the party in power in Kerala to push their ideology in the guise of implementation of a declaratory order, resulted in anarchy and breach of peace in the society. The moot question is as to what exactly is the mandate of the Majority Judgment of the Constitution Bench at the first instance, which is now stands referred to a larger bench. Was it necessary for the State to jump into action so as to protect all those who come forward to prove a point that they won the battle against the presumed/projected ‘gender discrimination’ ? Or to be more compassionate to the citizens of the State so as to protect them from possible anarchy that may ensue, on taking hasty steps to implement their ideology under a judgment in which there was no mandatory injunction but contained only a declaration of law, that ‘menstruating women’ can climb the 18 steps at the ‘Sabarimala Temple’. Under the changed circumstances the State has taken a wise decision to wait till the Hon’ble Supreme Court churn the muddy water and brings out a ‘crystal clear verdict’ after investigating everything including the legislative intention of the framers of the Constitution in bringing in Article 14,15,17 and 25 of the Constitution.
D. Legal Impact of reference to Larger Bench:
Hon’ble Supreme Court in the case of Mohinder Kumar v. State of Haryana reported in (2000 (3) KLT OnLine 1017 (SC) = (2001) 10 SCC 605held, that when a dictum in a judgment stands referred to a larger bench, the courts in India cannot apply that as a law in future cases, unless and until the larger bench comes out with a clarification on the legal position. In the present case the 5 Judge Constitution Bench judgment which made a declaration of law, is now in a stage of suspended animation in view of the later judgment, which doubted it’s correctness. Things would have been different, provided it is a judgment in-personam where a party to the lis was given a personal decree capable of being executed. In that case, unless the decree is stayed the judgment shall be capable of being executed. On the other hand in the present case it is a judgment amounting to declaration of law alone and there is no direction which requires execution. In that case the whole issue will have to be understood in a totally different perspective.
E. Article 25(2)(b) reads as follows:
25. Freedom of conscience and free profession, practice and propagation of religion
(1)Subject to public order, morality and health and to the other provisions of this part all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing lawor prevent the State from making any law.
(a)regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I - The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation II - In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly
The Article is not applicable to a public place of worship of Muslims, Christian or any other person belonging to a religion other than Hinduism. From the simple reading of the said Article 25(2)(b) it is clear that the State can throw open only a “ Hindu Religious Institution of a public character’. Look at the paragraph 8 of the reference order which reads as follows:
“8. While deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.”
The above observation assumes importance because this issue was raised in the review petitions with a specific reason because the ‘Sabarimala Dharma Shastha Temple’ unlike other Hindu Ayyappa Temples will not fall under the term ‘Hindu Religious Institution’ because in Sabarimala not only Hindus but believers of all religions conduct the prayer with impunity. Therefore Hindus alone are not affected but it can also be Muslim or Christian. The 1965 Act cannot apply to any temple in which believers of other religion can enter as a matter of right. The story of the origin of the Temple and the importance of ‘Vavar’ who is considered as a deity in ‘Sabarimala’ itself shall provide sufficient insight on this aspect. Therefore a temple which is thrown open to the believers of all religions cannot in strict sense can be termed as a ‘Hindu Temple’. If that be so, the ‘Sabarimala Temple’ may not be covered by Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. Hence striking down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 has no consequence. Since this question is also to be decided by the 7 Judges among various other issues including the extended meaning of ‘untouchability’ under Article 17 the ‘legal dictum’ of the previous judgment is in suspended animation. Whether framers of the Constitution visualised a concept of ‘Untouchability’ between ‘menstruating and non-menstruating women’ is also a moot question, especially when it is an issue outside the purview of gender discrimination. Consequence is that if a person seek a mandate from the Court, the 5 Judge Bench decision headed by Justice Deepak Mishra in the Writ Petition cannot be relied upon by any court in India, even if there is no stay since the said judgment is only a ‘declaration of Law’ especially when there is no personal decree which required to be stayed. The State need not worry about any possible contempt action because there is no mandamus against them. If a Muslim insist that he is entitled to enter a Hindu Temple but prevented by Hindus, no court will possibly be issuing a mandatory injunction directing the Temple Authorities to admit the Muslim citizen. It can never be considered as ‘Untouchability. It is a question of mutual respect for each religion and also within the religion which ultimately aimed at as an outcome in the practice of all religions so as to ensure the peace and tranquillity. Any person questioning the authority of the deity to remain celibate or to enable the follower to practice celibacy as the wish of the deity cannot be considered as a ‘believer’ of that particular deity. The person questioning everything and looking for reasoning is a ‘Gyana Yogi’ who need not believe in idol worship or any type of worship for that matter but an idol worshiper is practising ‘Bhakthi Yoga’, who shall never question the authority of the deity but simply surrenders himself to the wishes of his deity. This alone is required to identified a believer and non- believer. The conflict between the two is not new but it relates back to Vedic era.
Even though there are some directions in the minority judgment in the present order, but it also is worded with great caution in paragraph 66 which reads as follows :
“66. The State of Kerala is directed to give wide publicity to this judgment through the medium of television, newspapers, etc. The Government should take steps to secure the confidence of the community in order to ensure the fulfilment of constitutional values. The State Government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the Court meet the genuine concerns of all segments of the community. Organised acts of resistance to thwart the implementation of this judgment must be put down firmly. Yet in devising modalities for compliance,a solution which provides lasting peace, while at the same time reaffirming human dignity as a fundamental constitutional value, should be adopted. Consistent with the duties inhering in it, we expect the State Government to ensure that the rule of law is preserved. All petitions are disposed of accordingly ”
If the State takes any step to ‘provide lasting peace’, that will definitely be appreciated by the Hon’ble Court but not a step to implement those declarations that are referred to larger bench as stated in the reference order, because it can hurt the feelings of thousands of believers who are rightly or wrongly fighting for their cause. It appears that there is no scope to entertain any doubt in a situation like this. Individual action may be considered by the High Courts or any other courts in light of the legal position contained in Mohinder Kumar v. State of Kerala reported in (2000 (3) KLT OnLine 1017 (SC) = (2001) 10 SCC 605)since the ratio of the decision in the order referred to 7 Judges Bench is in suspended animation.