Some “Flat” Thoughts -- The Dream that Became A Nightmare !!!
By K.G. Balasubramanian, Advocate, High Court of Kerala
19/10/2019Some “Flat” Thoughts -- The Dream that Became A Nightmare !!!
(By K.G.Balasubramanian, Advocate, High Court of Kerala)
God’s own country -- our own paradise
With sea on one side, hills on the other
Flat ly here, dreams of breeze and sunshine
Float here, fury and wrath of Nature!
Flagged by law of the land
Flogged by Themis
Ragged by greed, robbed by men!
Men in robes fidgeting and fighting
For a cause that killed her.
The coast is gone, the cove is ugly
The waves are gone, the breeze is gone
H2O remains a tear on parched eyes!
Flats waiting to be flattened
Men waiting to be flattered
Alas, “HOLY FAITH” has an unholy fate?!
Pursuit -- Par Excellence
By P. Rajan, Advocate, Thalasserry
19/10/2019Pursuit -- Par Excellence
(By P. Rajan, Advocate, Thalassery)
Hon’ble Justice P.Ubaid has bid adieu after serving as Judge of the High Court of Kerala for more than 5 years, before serving in the lower strata of the State Judiciary for about 25 years. As Judge of the High Court he was not after any sobriquet or media glare; discharged his duties with unalterable determination to render justice. The test of ability of a judge is the contents of his judgments, avoiding inexcusable delay in pronouncing orders. His language was temperate, reasonings fortified by proper expressions, not voluble but luscious. He is ineffable, well aware of the duty of a Judge - to protect the constitutional and legal rights of the litigants - the perception he never dispelled. His impeccable integrity was quiet evident as he ardently kept at bay susceptibility of simblings, during his career.
His reticence in Court was dignified, though being stickler to procedures and pleadings. No doubt his inborn characteristics have been his integrity and intellect, not acquired to suit the seat he occupied of late. We are passing through a period of anguish, when reputation and efficiency of the judicial system at the national level itself is a matter of criticism and viewed with suspicion, by the polity. The Chief Justice of India had to pull up his registry for improper listing system of cases and had to lament for, weeks’ delay in placing a missive before him, sent by the rape victim in the much publicised unnao gang sexual assault incident, in which political big brothers, too are the suspects. The complaint against the master of the roster of the top Court by a paralegal woman member ended, after a controversial in house enquiry, which had invited nation wide resentment. When a senior Judge of the Patna High Court had spoken of corruption in the High Court of Bihar - his judicial work and cases before him were withdrawn by the Chief Justice of that Court, discord evident among, Judges. The collegium’s cherry-picking for promotion of High Court Judges has been questioned before the apex court itself. Recent transfer of Madras High Court Chief Justice V.K.Tahilramani to Meghalaya High Court became a debatable issue legally too, High Court lawyers’ abstained from work in Tamil Nadu stating that the transfer order is punitive; one High Court is as good as another opined some and the order is no demotion. Whatever may be the views and opinions in this regard, systemic faults of the collegium system - lack of opaqueness even after the third judges’ case decided by the Apex Court, is inferrable some times.
State judiciary here is one of the bests in the country, though not the best, repeated in unison, by the union law ministry and many, time and again. But rarely the picture did not appear so rosy - exercise of supervisory powers, the members are subjected to, rarely lead to drastic outcome. Dis-heartening to note, a district Judge of Alappuzha had to take the extreme step of suicide, rumoured, as his performance was not to the level of approval of the higher-ups; not long ago.
Justice Ubaid had started his judicial career from the lower rung of the system and served later as Sub Judge, District Judge and as High Court Judge. Ascent to the exalted assignment never changed his attitude or approach as a person always, striven to render justice, though change is the way of life. He was not a whip-lasher in Court even if his questions remained unanswered or difficult to answer by the bar. While swearing in as the High Court Judge he had declared that he would do his job with social commitment, within the constitutional commands and constraints. To buttress this statement judgements are plethora (2015 (1) KLT page 52, 2017 (2) KLT page 713, 2019 (3) KLT page 586 to mention some).
This writer had occasion to appear before him while serving as Magistrate, Sub-Judge, District Judge and also in the High Court. His court was agile and lively-his zest was to render justice. This write-up is not an attempt of votive or vouchsafe, but narration of experience and appreciation; as Justice Ubaid being an unassuming person and erudite Judge.
It is very easy to give examples - but arduous to become an example.
A Bit More -- On the Lawyer Robes
By V.B. Premachandran, Advocate, High Court of Kerala
19/10/2019A Bit More -- On the Lawyer Robes
(By V.B. Premachandran, Advocate, High Court of Kerala)
(With reference to Journal Pages of 2019 (2) KLT 54 & 2019 (3) KLT 43)
Million Dollar question-
To be or not be
Whether to wear or banish -
the black robes ?
Answers - Beloved members of our
legal fraternity, differently
Fear not the ‘Nipah Virus - bat’ looks-
- of the black robes
Prevails, the fragrance of the
Rose over its thorns
Prevails, the charm of the
robes over its heat and dust
Colonial legacy - perhaps-
harmlessly - nostalgic
Heaven’s sake - with, within
Without and notwithstanding-
Let, platonic love towards
the Black Beauty continue
Let, hue and cry on robes
Vanish in the thin air
Dignity and decorum, wear we
the black robes
Pride and grace adore we
the black robes
Let not the robes be robbed
Long live the robes
Long live the Lawyer
Long live the Law !
An Open Letter to the Law Reforms Commission
By T.J. Michael, Advocate High Court of Kerala
31/08/2019An Open Letter to the Law Reforms Commission
(By T.J. Michael, Advocate, Thodupuzha )
Recently an uncommon incident had occurred where a young IAS officer is alleged to have caused an accident which had resulted in loss of life of a reputed journalist. The incident had occurred during odd hours of the night at about 1 o’clock in the morning. The accused is said to have been returning from a late-night party that also in a drunken condition.The incident had occurred at a stone’s throw distance from the Museum Police Station in Trivandrum. There is serious controversy as to the manner in which the police had dealt with the situation. Factors like the belated collection of blood sample to ascertain whether the officer was drunk at the time of incident and the preferential treatment that was meted out to the officer is unwelcoming and disturbing. To the dismay of a common man , the bureaucrat was enlarged on bail, as in an ordinary case of Section 304A of the Indian Penal Code. The whole pandemonium appears to have cooled down and settled. This incident brings to my thought a phrase used by George Orwell in his ‘Animal Farm’“ all animals are equal but some animals are more equal than others”. It is a typical case where our legal machinery turns out to be tooth less in such abominable crimes where human life is sacrificed in utter apathy.
My purpose of penning down this brief write-up is to drive home the fact that causing death of innocent people by insensitive men by reckless, rash and negligent acts very often in a drunken condition escapes the clutches of law as if from a loose knot. It appears that the law enforcing agency conducts only perfunctory investigation presumably on the premise that the death caused is unintentional. The unpardonable reckless attitude of the offender very often escapes unnoticed or not being taken seriously. Even though there is much clamor and lamentation about road accident deaths the culprits escape scot free because of the lackadaisical approach of the law enforcing agency. I feel that it is high time that serious thought has to be given on this matter. In this context I would like to make a suggestion that in the case of offences under 304A of the Indian Penal Code, change has to be made in the burden of proof in prosecution of the offence before the Courts of Law. In my view ,which is of course subjective, no person will be interested in falsely implicating a person in a case of accident death where the accident has occurred otherwise than by the negligence of the driver. So my suggestion is that in the case of offences under Section 304A, the burden that accused is not guilty of the offence has to be placed on the accused person. This would enable the driver of the vehicles to be more careful and put him on the alert, especially by refraining from consuming alcoholic drinks when he has to take the wheel. It may not be forgotten that such changes of law have been adopted in other cases of recurring offences seriously affecting the fabric of the society like dowry deaths. Even in the case of deaths due to medical negligence, it is highly cumbersome for the affected to prove the negligence of the Surgeon before the court as it involves many complicated medical information and evidence. It is seen by experience that it is a fight between unequals and every concerted effort would be made from the part of medical officers. So I think it is only apposite to make necessary changes in criminal jurisprudence and the Evidence Act so as to shift the burden of proving the non-culpability to the offender. I would like to submit this proposal before the Law Reforms Commission
An Overview on Abrogation of Article 370
By S. Sanal Kumar, Advocate, HC
31/08/2019An Overview on Abrogation of Article 370
(By S.Sanal Kumar, Advocate, High Court of Kerala)
Article 370 of the Constitution has come to an end heralding the emergence of a new Jammu and Kashmir. The Presidential Order abrogating the special status to J. & K. and its bifurcation into two Union Territories is by and large accepted by the Nation. But the frail voices of dissension from opposition parties, describing the move as undemocratic and a treachery on the people of Kashmir, spell doom for its full grandeur and glory.
The Background of the Instrument of Accession:
Maharaja Hari Singh was the Ruler of Jammu and Kashmir princely State at the time of independence. Even before the ‘Quit India’ movement in British India, there arose revolt against Maharaja by National Conference under Sheik Abdulla and Muslim Conference in 1938, as “Quit Kashmir Movement”. With the end of Second World War, decolonisation started with Britain declaring its intention to accord complete Independence to India. The Cabinet Mission visited India on 23.03.1946 and issued Memorandum containing guidelines for the native States to follow regarding future course of action on independence. Provincial Governments under British sovereignty and princely States ruled by dynasties, and were under suzerainty of Britain were dealt with under the memorandum issued. The Princely States could opt to join as a federal unit under the proposed Dominion or could remain as Sovereign State. The Memorandum brought to an end the paramountcy of crown over princely States. Following this, Indian Independence Act 1947 was passed by the British Parliament dividing India into Dominion of India and Dominion of Pakistan. By Section 9 of the Independence Act, the Princely States were given the option to accede to either of the dominions as per Section 6 of the Government of India Act 1935. Full freedom was given to Principalities in joining with emerging Dominions or to remain as independent sovereign States. The Indian Independence Act contemplated a referendum to ascertain the wishes of people only in respect of North West Frontier Province and Sylhet in Assam (Section 2(2)(e) and 3(2) of the Act). The dominion of Pakistan was carved out from British India with West Punjab, Sind, Baluchistan, East Bengal and North West Frontier Province with the remaining British India to become the Dominion of India. But sourcing power from Section 9 of Independence Act read with Section 6 of Government of India Act, as many as 500 and more princely States executed Instrument of Accession with India or Pakistan, as the case may be before 15th August, 1947. The princely State of Junagadh, Kashmir and Hyderabad were diplomatically dithering to take a decision on accession.
Maharaja Hari Singh of Kashmir wanted to remain as a sovereign State, opting not to sign the Instrument of Accession. But when the revolt against Maharaja by Pushtun Tribesmen with the aid of Pakistan army was about to dethrone the King, the assistance of India was sought by the Maharaja. With the signing of Instrument of Accession on 27.10.1947 by the Maharaja, which in form and substance was like 140 other Instruments of Accession signed by other States, the princely State of Kashmir became an integral part of India. (The Wire: Venketesh Nayak who sourced it from National Archives of India wrote in his Article on comparison with 140 other IOA). It did not contain any clause for referendum to be conducted for its full integration with Dominion of India. Archives on Constitutional literature say that Dr.Ambedkar was averse to the incorporation of Article 370 into the Constitution as according to him, it was against the terms of instrument of Accession and the intent of full integration of Kashmir with India. The task of drafting Article 370 was undertaken by Gopalaswamy Ayyangar, a Minister in Nehru’s cabinet without portfolio.
When Pakistan sponsored insurgency continued, India moved a motion in the U.N. Security Council in 1948 under Article 35 of U.N. Charter terming Pakistan’s intervention as a disturbance to international peace as also the tranquillity in Kashmir valley. This paved the way for ‘entanglement’ of India with UN dikat. It appears from records that the UN by Resolution No. 97 asked the Pakistan Military forces to demilitarise the area. As regards India it gave a direction to conduct a plebiscite in Kashmir to ascertain the wishes of Kashmir people regarding accession to India. (C.N.Agrawal Memorial Lecture by Dr.A.S.Anand, former Chief Justice of India reported in (1996) 4 SCC 11). Later, in 1951 when National Assembly was Constituted in J.& K., its representatives were elected through democratic process where the total 75 seats went in favour of the National Conference and its leader Sheik Mohamed Abdulla was elected as the Prime Minister of Jammu and Kashmir. The Constituent Assembly, by its resolution dated 15.2.1954, ratified the State’s accession to India in unequivocal terms. The National Assembly, while adopting its Constitution on 7.11.1956 declared in Article 3 that Jammu and Kashmir is and shall be an integral part of Union of India. Further Article 147 of J. & K. Constitution unequivocally says that Article 3 and 5
shall not be amended in any manner in future. It is also further laid down in Article 147 of
J.& K. Constitution that the provisions relating to the relations with Union of India are also not liable to any change by way of amendment. Though, technically no plebiscite as instructed by UN was conducted, still the declaration by the elected representatives of the J.& K. Constituent Assembly gives a democratic imprimatur to the accession of J.& K. to India. TheConstitution of J.& K. was adopted on 7.11.1956.
Present Constitutional therapy done
Running with the tumultuous years in Kashmir after independence, the framing of Constitution of Union of India was taking place. The then Industries Minister in the Nehru Cabinet, Dr.Shyamaprasad Mukharji, resigned from the Cabinet on account of the decision to give special status to Jammu and Kashmir. His death in custody by the J. & K.
Government under Sheik Abdulla is still a mystery to be unravelled. When Article 306A (now 370), was introduced by Gopalaswami Ayyangar in the Constituent Assembly it is curious that the opposition came from a Muslim member, Maulana Hasrat Mohani (United Provinces: Muslim). He termed the granting of special status as discriminatory. Some excerpts from the Constituent Assembly Debates held on 17th October, 1949:
Honourable Shri. N.Gopalaswami Ayyangar:
............. I do not want to take much of the time of the House, but I shall briefly indicate what the special conditions are. In the first place, there has been a war going on within the limits of Jammu and Kashmir State.
.....We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.
.....Now, if you remember the view points that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system.
Article 306A is an attempt to establish such a system.
........Maulana Hasrat Mohani: Sir, I want to make it clear at the very outset that I am neither opposed to all these concessions being granted to my Friend Sheikh Abdullah, not am I opposed to the acceptance of the Maharaja as the ruler of Kashmir. And if the Maharaja of Kashmir gets further powers and concessions I will be very glad. But what I object to is this. Why do you make this discrimination about this Ruler? Mr. Ayyangar has himself admitted here that the administration of Kashmir State is not on a very good basis......
The Honourable Shri.N.Gopalaswami Ayyangar: That is a wrong statement. I never said so.
........Maulana Hasrat Mohani: That it will assume independence afterwards. But may I ask a question? When you make all these concessions for Kashmir I most strongly object to your arbitrary act of compelling the Baroda State to be merged in Bombay. The administration of Baroda State is better than the administration of many other Indian Provinces. It is scandalous that you should compel the Maharaja of Baroda to have his raj merged in Bombay and himself pensioned off. Some people say that he himself voluntarily accepted this merger. I know it is an open secret that he was brought from England and compelled against his will.....
Now time was overdue for the Government of India to bring to an end Article 370 for ensuring constitutional parity of States. Article 370(3) was invoked by the President for causing cessation of the Article itself. By invoking Section 92 of the J.& K. Constitution, the power of the Legislature of the State was assumed by the Governor. By the amendment of proviso to Article 370(3) with the effect of substituting `Constituent Assembly’ with ‘legislature of the State’, the Constitutional task was deftly done by the Government of India within the legal frame work. Article 370 was in fact the placenta in the birth of Jammu & Kashmir. The gestation period of Jammu & Kashmir is over and the birth of J. & K. has taken
place as twins. An excellent Constitutional gambit indeed it was.
Self Determination:
The Presidential order and Bills moved by the Government are termed as undemocratic by Opposition mainly on the premise that a recommendatory resolution of Legislature of the State is lacking as mandated by proviso to Article 370(3). The position is conceded by all concerned regarding the power of the President to issue notification to cause cessation of operation of Article 370 of the Constitution. But argument based on lack of concurrence of the elected representative is one essentially boiling down to the issue of self determination. Did Kashmir originally intend to go for self determination at the time of formation of Dominion of India and Dominion of Pakistan when Indian Independence Act was passed in 1947 is the moot question in this context. An emphatic `No’ is the answer to the said question. The Independence Act made it peremptory the holding of referendum only in the North West Frontier Province and Sylhet in Assam. It provided that these parts of British India could be made part of Pakistan subject to ratification by the people of the province through a referendum. But for the princely States, the wishes of the Ruler was the determining factor regarding accession to any of the Dominions under Section 9 of Independence Act in tandem with Section 6 of Government of India Act 1935. The princely States under the suzerainty of British Empire were returned their sovereign power by the British Crown to decide the issue of accession in accordance with the provisions in the Independence Act. The Independence Act contemplated a carte blanche to be given to the Rulers of Princely states, and no right of self determination of its people was conceded to, as far as accession to dominions is concerned. Article 370, originally titled as “temporary and transitional’ was later retitled as `temporary’ in 1963 (Constitution 13th Amendment w.e.f. 1.12.1963). The J.& K.Constituent Assembly was formed on 31.10.1951. On 15.2.1954 the Assembly ratified State’s accession to India. The J.& K.Constitution came into being on 26.1.1957. The Constituent Assembly of J.& K. was dissolved on 17.11.1956. According to Mir Quasim
Resolution, the Constituent Assembly ceased to exist on 26.1.1957. Though initially Sheik Abdulla was elected Prime Minister, he was dismissed by Head of State (Sadr-e-Riyasat), Karan Singh, son of Maharaja Hari Singh in August 1953 and was put in prison. The task of framing Constitution was done under the Prime Minister ship of Bakshi Ghulam Mohammed. The declaration in the J.& K.Constitution that J.& K. is an integral part of India makes the self determination of people of J. & K. complete in itself. The abrogation of the temporary provision, Article 370, makes the integration a constitutional reality whereby a uniform Constitution is made applicable to the whole of India. Now the flesh and blood of Union of India is the States and Union Territories enlisted under Schedule I of the Constitution of India. Kudos to the Union of India for the bloodless Constitutional conquest of its integral part.
Territorial Integrity, Sovereignty and Self Determination
The concept of Nation State is the product of Treaty of Westphalia 1648. When cultural boundaries match up with political ones, the emergence of Nation State is the natural fall out. The creation of a uniform national culture by State intervention will naturally augment the formation of Nation State. Uniform language, ethos, State emblems etc. are contributing factors for formation of Nation State. The adoption of national policies on education, cultural affairs, civil relations among citizens by a responsible Government followed by its successful implementation eventually leads to Nation State formation. Territorial integrity and territorial sovereignty, not for Nation State alone but for all States, are necessary concomitant of Statehood. UN Charter enumerates territorial sovereignty and political independence as precondition for recognition as State. It is surprising that India, with its crippled sovereignty over an integral part of it, was nevertheless recognised as a Member State by UN so far. India’s territorial integrity and full sovereignty over its component States were an absolute necessity for its assertion as a State entity with full statehood in its conceptualisation. Emerging concepts of international law say that the right of self determination of people of an area is subservient to the larger essential attributes of statehood like territorial integrity and sovereignty. When the clash of logic is based on territorial integrity and sovereignty on the one hand and right of self determination on the other end, the former takes precedence over the latter.
Indian Episodes of annexation of territory
The annexation of Hyderabad to India is a classic example of assertion of territorial integrity and territorial sovereignty. Though Nizam of Hyderabad wanted to join with Pakistan, through a military intervention, called ‘Operation Polo’, the princely state of Hyderabad was made part of Union of India in September, 1948. The Nawab of Junagadh, desired to accede to Pakistan but Junagadh was annexed to Indian territory by military action. The referendum done on Junagadh under the supervision of Indian Military troop was only a farce, designed to give it the flavour of self determination. The annexation of Sikkim in 1975, which was a Protectorate of Union of India till then, is also another example of assertion of territorial integrity. A referendum done after the conquest in Sikkim was in fact a smokescreen to give legitimacy to the conquest. Liberation of Goa and Pondicherry, were done by way of similar military conquest.
Conquest for preservation of rights of ethnic groups
On the International arena, the Russian annexation of Crimea in 2014 is another instance, where even a conquest is justified in the name of territorial integrity and preser-vation of rights of ethnic groups. Israel’s occupation of Galon Heights is now accepted by the US as an assertion of territorial sovereignty and integrity. Justice Anand, in his lecture (1996) 4 SCC Journal 11)draws parallel from the US annexation of Texas in 1845 from Mexico, when he talks about accession of Kashmir to India. The common feature of all these annexations is its justification for protection of rights of ethnic groups. The ethno-linguistic issues of Russians in Crimea, the sufferings of the US settlers in Texas were the propelling factors for the intervention of respective countries. The large scale exodus of Kashmiri pundits, following the oppression by the majority religious groups in late 1990’s is a legitimate reason for the Government of India for a complete military suzerainty over Kashmir. The resettlement of the Kashmiri Pundits in their home land is a constitutional compulsion for India for its intervention.
For a State to survive and progress, the territories in its corridor and contour are to be held in contiguity with complete sovereignty, which essentially is territorial integrity in political science. For India to be a nation with full sovereignty over its territory, the complete integration of Jammu & Kashmir is indispensable. Fortunately we have done it through constitutional means, though with a few fulminations over procedural niceties. Given the international scenario on Crimea and Galon Heights, even military deployment to secure peace and complete integration cannot be objected to. Territorial integration to secure peace is being accepted as a norm in international law as means to curb terrorism thriving on the platform of separatism.
Surgery by Constitutional means is now over. Political chemotherapy has to commence yet. Let us be hopeful for our Paradise on Earth to re-emerge with its full splendour and gaiety.