Federalism in Our Constitution

(By O.V.Radhakrishnan, Senior Advocate, High Court of Kerala)

Presidential address by Senior Advocate O.V.Radhakrishnan at the meeting of Indian Lawyers’ Association on November, 26, 2020,-- the Constitution Day.

The Constitution of India was finally adopted, enacted and given to ourselves in our Constituent Assembly elected according to the Cabinet Mission Plan 71 years ago on the 26th of November, 1949. This function organised by Indian Lawyers’ Association at this difficult time of COVID 19 on the Constitution Day to deliberate upon the topic ‘Federalism in our Constitution’ which is one of the plural range of governmental concerns in the present day political scenario is well-timed.

The Constitution of India is predominantly federal in practice.  The conditions existed in India necessitated the adoption of federal solutions for a Sovereign Democratic Republic and eventually embodied federalism in the Constitution.  

The basic principle of ‘federalism’ is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. It was the patriotic resolve with vision and passion of the Founding Fathers of our Constitution to adopt the federal principle into our Constitution and the federal system of Government is incorporated in our Constitution.

The modern jurists define ‘federalism’ as a form of Government in which there is division of powers between the Centre and the States, each within its sphere interdependent and coordinate with each other. Federalism is a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Thus, the essence of federalism is the existence of the Union and the States and the distribution of powers between them. ‘Federalism’ essentially implies demarcation of powers in a federal compact and is beyond the limits of ordinary lexical definition.

The most important feature of our Constitution is the distribution of legislative power between the Centre and the States. Articles 245 to 255 relate to distribution of Legislative Relations.Our Constitution adopted the device of exhaustively enumerating every conceivablesubject of legislative power and putting it in List I, List II the and List III of the Seventh Schedule. List I includes subjects over which the Union shall have exclusive power of legislation. List II or the State List comprises items or entries over which the State Legislature shall have exclusive power of legislation. List III gives Concurrent powers to the Union and the State Legislatures.

Legislative power is specifically reposed in Parliament under Articles 2, 3, 11, 247, 262, 343 and 348 of the Constitution. In such cases, the distribution of power based on the Lists is not applicable and the power exclusively vest in the Parliament. In case of repugnancy between a law of a State and a law of the Union in the Concurrent List, the latter will prevail by force of Article 254(1) of the Constitution. The State Legislation may, however, prevail notwithstanding such repugnancy, if the State law is reserved for the President and received his assent under Article 254(2) of the Constitution.

Distribution of executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws provided that the executive power shall not extend in any State to matters with respect to which the Legislature of the State has also power to make laws.  

Under Article 3 of the Constitution, Parliament can alter or change the areas, boundaries or names of existing States.  As a matter of law, empowering Parliament to re-draw the map of India is a serious departure from the federal principle.

Part XI Chapter I of the Constitution relate to Legislative Relations.  Articles 245 to 255 deal with distribution of Legislative Powers. Articles 256 to 258-A provide for the Administrative Relations between the Union and the States and are the counterparts of the legislative divisions.  Distribution of Revenues between the Union and the States is provided in Articles 268 to 290 of the Constitution and the allocation of taxes between the Union and the States is mutually exclusive.  The taxing power between the Union and State Legislatures is subject to the limitations imposed by particular provisions of our Constitution such as the State Legislature or any authority within the State cannot tax the property of the Union and the Union cannot tax the property and income of a State.  The power of the State to levy tax on sale or purchase of goods is subject to Article 286 of the Constitution.  Save in so far as Parliament may, by law, otherwise provide, a State shall not tax the consumption or sale of electricity in the cases specified in Article 287 of the Constitution.

Articles 352 to 360 of the Constitution relate to emergency provisions. Article 352 empowers the President if on satisfaction that a grave emergency exists whereby the security of India or of any part of the territory thereof, is threatended, whether by war or external aggression or armed rebellion to make a Proclamation of emergency in respect of whole of India or of such part of the territory thereof.

Article 250 of the Constitution confers power on the Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. Article 353 of the Constitution carves out an exception to other provisions in the Constitution laying down that the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised and that the power of Parliament shall extend to make laws in respect of any matter specified therein notwithstanding that it is one which is not enumerated in the Union List.

Where failure of Constitutional machinery occurs, Article 355 of the Constitution imposes on the Union the duty to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. A proclamation of failure of Constitutional machinery enables the Union to establish a stable Government in the State in accordance with the Constitution. There is a Constitutional duty enjoined in the Union of India to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.  

Article 356 of the Constitution gives power to the President to issue Proclamation to assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; to declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament and to make such incidental and consequential provisions for giving effect to the objects of the Proclamation on his satisfaction that there is failure of Constitutional machinery in the State. 

Article 365 provides that where any State has failed to comply with or to give effect to any directions given in exercise of the executive power of the Union, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of Constitution. This provision gives power to enforce the directions issued by the Union of India under Articles 256 and 257 of the Constitution.

The Union and the State Governments should always work in harmony avoiding constitutional discord. The concept of collaborative federalism is negotiation and coordination to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. In collaborative federalism, the Union and the State Governments should strive to achieve the common objective and work together for achieving it. The Constituent Assembly while devising the federal character of our Constitution apparently would not have thought of the possibility of the Union Government and the State Governments going off at a tangent or taking up unaccommodating principle inviting anarchism.  To achieve the ultimate aim to have a holistic structure, coordination amongst the Union and the State Governments is necessitous. Pragmatic Federalism can evolve innovative solutions to problems that emerge in a federal set-up of any kind.  The Union and the State Government should always practice Collaborative and Pragmatic Federalism to bring off the golden goals of justice, liberty, equality and fraternity.

A study of the aforementioned provisions of the Constitution finds a broad manifestation of deviations from the federal character in certain principal areas indicating ‘quasi-federal’ nature inherent in our Constitution. The federal principle has preponderant role inspite of the presence of quasi-federal features which is perceivable if one has run the gamut of our Constitution.

Signally, ‘Federal balance’ is yet another complementary concept. Though the Indian Constitution prescribes a federal structure providing for division of powers between the Centre and the States with a slight tilt towards the Centre and the quasi-federal structure is inherent therein, the Constitution has provided for a federal balance between the powers of the Centre and the States so as to avoid unwarranted or uncalled for interference by the Centre. The principle of Federal balance is entrenched in our Constitution. A dispute between the Union of India and a State involving a question, whether of law or fact, on which the existence or extent of a legal right depends is comprehended within Article 131 of the Constitution and the legal rights of the States can be asserted before the Supreme Court under Article 131 of the Constitution. The obligation to maintain the Federal balance to prevent any usurpation of power either by the Centre or the States is thus exclusively vested in the Supreme Court. However, the dispute must involve a question relating to a legal right as distinguished it from ‘political’ right over which the Courts have no jurisdiction. The role of the Court to act as the interpreter of the scheme of distribution of power in a Federal system of Government is beyond mutation by the plenary power of Parliament and is immunised.  It is a basic feature of the Constitution. Above all, the Court is final arbiter and defender of the Constitution.

Applicability of the Prevention of Corruption Act on the
Employees of Co-operative Societies

(By R. Muralidharan (Puducherry Civil Service Officer (Retired),
Director, Catalyst [The Training People])

The initiation of disciplinary proceedings, a very vulnerable and unenviable task, calls for strict norms and in each case not only justice must be done, but it must also seem to have been done. Measures for enforcing discipline are laid down in various books of regulations and instructions from time to time. There is no single book covering the entire gamut of the disciplinary proceedings, covering the code of conduct of employees in various services. Generally the management is found to fight shy of handling disciplinary cases as it involves a considerable amount of labour, application and adherence to rules and procedures on the subject.

The co-operative societies have formulated their own service rules, adopted the philosophy of the Constitution of India. They are known as subsidiary regulations governing the service conditions of the employees. Provisions are made in these regulations to give every reasonable opportunity to the accused employee to prove his innocence, when he is charged with an act of misconduct. In addition to these provisions, the principles of natural justice come to the rescue of the accused employee, wherever required. Drafting of right charge sheet is the start of all. The applicability of law is the foundation for initiation of action. Gone are the days where conduct of disciplinary enquiry was a tame affair. The disciplinary authority, namely the President of the society himself conducted the enquiry and imposed the punishment based on the service regulations. Simple laws and procedures were applicable in such cases. But, of late in disciplinary proceedings laws like Indian Penal Code, Evidence Act, Cyber laws, Information and Technology Act, Income Tax Act and Prevention of Corruption Act are also coming to play.

This article delineates on the applicability of the provisions of the Prevention of Corruption Act (the P.C. Act, for brevity) on the employees of the co-operative societies in the light of various decisions of the Supreme Court and High Courts. An insight is
sine qua nonfor the stakeholders as, at times, inappropriate application of law goes to the root of the case and results in every action void ab initio. A couple of decisions deal with the applicability of the P.C. Act to the office-bearers of the society. This is to explain the evolution of the law on the subject.

 ‘No’ under the P.C. Act, 1947

Whether the Chairman of a co-operative society under the Maharashtra Co-operative Societies Act can be held to be a ‘public servant’ for the purpose of Section 21 of the Indian Penal Code (hereinafter the I.P.C.) and as such, can be proceeded against for offences under Section 5(1) read with Section 5(2) of the P.C. Act, 1947, was an interesting question that came up for decision before the Supreme Court in State of Maharashtra v. Laljit Rajshi Shah, vide (2000 (1) KLT OnLine 951 (SC) = AIR 2000 SC 937: 2000 AIR SCW 698:
2000 Mah.LJ 1494: (2000) 3 SCC 699).

The Division Bench of the Maharashtra High Court, whose decision was under challenge before the Apex Court, has analyzed the provisions of Section 161 of the Maharashtra Co-operative Societies Act as well as Section 21 of the I.P.C. and Section 2
of the P.C. Act, 1947. It came to a conclusion that Section 161 of the Act incorporating Section 21 of the I.P.C.ipso factodoes not enlarge the definition of the term ‘public servant’ in Section 21 of the I.P.C. It further held that the State Legislature which was competent to amend Section 21 of the I.P.C., the subject of criminal law being on the concurrent list and yet that not having been done, the expression ‘public servant’ under Section 161 of the Act would mean those officers to be public servants for the purpose of offences under the
Co-operative Societies Act and Section 21 of the I.P.C. cannot be said to have engrafted into Section 161 of the Act. Accordingly, the High Court held that the accused persons cannot be prosecuted for offences under Section 409 of the I.P.C. and Sections 5(1)(c) and 5(1)(d) of the P.C. Act, though they can be prosecuted for other offences for which cognizance had been taken.

In view of this, the sole question for consideration was as to what would be the effect of provisions of S.161 of Maharashtra Co-operative Societies Act in interpreting the provisions of S.21 of the I.P.C. The Court noted that the I.P.C. and the Maharashtra
Co-operative Societies Act are not statutes in pari materia. The Co-operative Societies Act is a completely self contained statute with own provisions and has created specific offences quite different from the offences in the I.P.C. Even though the legislatures had incorporated the provisions of S.21 of the I.P.C. into Co-operative Societies Act, in order to define ‘public servant’ but those ‘public servants’ cannot be prosecuted for having committed the offence under the I.P.C. A legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act. When a person is ‘deemed to be’ something, the only meaning possible is that whereas he is not in reality that something, the Act of legislature requires him to be treated as if obviously for the purposes of the said Act and not otherwise. Taking these factors into reckoning, the Supreme Court did not see any infirmity with the impugned judgment of the High Court to be interfered with and dismissed the appeal filed by the State.

Enlarged definition held valid

The appellants in M.A.Kichu Devassy etc. v. State of Kerala(AIR 1979 SC 358:
1979 SCR (1) 797 : (1979) 2 SCC 117) were tried and convicted in respect of the offences
inter-aliaunder Section 408, 465, 477 and 477A of the I.P.C., read with Section 5 of the P.C.Act, 1947 by a special Judge. Both the appellants were members of a registered co-operative society. The conviction of the appellants was confirmed by the High Court. Section 21 of the I.P.C. defines a public servant as members of the executive committee or servants of a co-operative society are not embraced by the categories mentioned in
Section 21. Section 2 of the P.C.Act, 1947 adopts definition of public servant from
Section 21 of the I.P.C.

The Kerala Criminal Law Amendment Act, 1962 amended Section 161 of the I.P.C. by adding an Explanation thereto. It provides that for the purpose of the said section and certain other sections a public servant shall denote, besides those who are public servants within the meaning of that section, members of the board of directors or the executive or managing committee and other officer or servant of a co-operative society registered or deemed to be registered under the law relating to co-operative societies for the time being in force. Section 3 of the Kerala Act provides that for the purpose of the P.C. Act, 1947, public servant shall have the meaning assigned to it under the Explanation to Section 161 of the I.P.C. as amended by the Kerala Criminal Law Amendment Act, 1962.

The appellants contended that Section 2 of the Kerala Act brought members of the executive committee or the servants of a registered co-operative society within the ambit of the expression ‘public servant’ only for the purpose of Sections 161 to 165A of the I.P.C. and for no other purpose. Therefore, the use of the enlarged definition cannot be made for the purpose of the P.C. Act. Dismissing the appeals the Court held the terms of Section 2 of the P.C. Act as substituted by Section 3 of the Kerala Act are absolutely clear and unambiguous and when they lay down that expression public servant shall have a particular meaning for the purpose of the Act, that meaning must be given to the expression wherever it occurs in the Act. The Kerala Act carried out amendment of the P.C. Act insofar as the State of Kerala was concerned. The P.C. Act deals not only with offences under Section 161 to 165A of the I.P.C. but also and mainly with those falling under various clauses of sub-sections (1) to (5) of Section 5 of the P.C. Act.

Not finding any merit in the contentions raised on behalf of the appellants, the Court held that the enlarged definition of the expression ‘public servant’ as contained in the Explanation added to Section 161 of the Code by Section 2 of the Kerala Act governs all the provisions of the P.C. Act,1947 that the appellants are public servants within the meaning of that enlarged definition by reason of the language employed in clause (iv) of the Explanation and that, therefore, the offences under clause (c) of sub-section (1) of Section 5 of the P.C. Act 1947 said to have been committed by them are triable exclusively by Special Judges appointed under the 1952 Act.

Affirmative under the P.C. Act, 1988 – Long Chain of Judicial Precedents

• The P.C. Act, 1947 was repealed by the P.C. Act of 1988. The new Act has enlarged the scope of ‘public servant’ and the decision of the Supreme Court in Government of Andhra Pradesh and Ors. v. P.Venku Reddy(2002 (3) KLT OnLine 1025 (SC) = AIR 2002 SC 3346:
(2002) 7 SCC 631: 2002 SCC (Cri.) 1826)has brought out the effect and import between the two Acts. The bone of contention before the Apex Court was whether the respondent/accused, who was working as Supervisor in the District Co-operative Central Bank, Nellore, for alleged offence of accepting bribe was punishable under the provisions of the P.C. Act, 1988. The Supreme Court was sitting on appeal over the decision of the Division Bench of the Andhra Pradesh High Court, which quashed the criminal case pending against the first respondent under the P.C. Act, 1988 on the sole ground that the accused was not a public servant as defined in sub-clause (ix) of clause (c) of Section 2 of the P.C. Act,1988. In the opinion of the High Court the said sub-clause covered only President, Secretary and other office-bearers of a co-operative society.

Section 2 of the 1988 Act, in so far as it relates to this purpose, is extracted below:

“2. Definition.-- In this Act, unless the context otherwise requires-

(a) & (b)                         ***                       ***                         ***

(c)                                                                            ‘public servant’ means:-

(iii)                                                                           any person in the service or pay of a corporation established by or under a
Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956):

(ix) any person who is the President, Secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).

The Court found fault with the conclusion of the High Court in relying on sub-clause (ix) and overlooking sub-clause (c) of Section 2 of 1988 Act for quashing the proceedings on the ground that the respondent/accused was not covered by the definition of ‘public servant’. In the expansive definition of ‘public servant’, elected officer-bearers with President and Secretary of a co-operative society which is engaged in trade among others in banking and receiving or having received any financial aid from the Central or State Government are included although such elected office bearers are not servants in employment of the
co-operative societies. But employees or servants of a co-operative society which is controlled or aided by the Government are covered by sub-clause (iii) of clause (c) of Section 2 of the P.C. Act, 1988.

The Court brought out the improvement made in 1988 Act over its predecessor of 1947 Act. The 1988 Act was brought into force with avowed purpose of effective prevention of bribery and corruption. Under the repealed Act of 1947, the definition of ‘public servant’ was restricted to ‘public servants’ as defined in Section 21 of the I.P.C.. In order to curb effectively bribery and corruption not only in Government establishments and departments but also in other semi-Governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive, definition of ‘public servant’ has been given in clause (c) of Section 2 of the P.C. Act, 1988.

The Court held further that the decision in State of Maharashtra v. Laljit Rajeshi Shah & Ors.(cited supra) would not help the respondent as it was based on the interpretation of the definition of ‘public servant’ as was contained in the repealed the P.C. Act, 1947. The Court allowed the appeal by the State.

• In State of Maharashtra & Anr. v. Prabhkarrao & Anr.(2002 (1) KLT OnLine 1071 (SC)
= JT 2002 Suppl. 1 SC 5, (2002) 7 SCC 636 : 2002 SCC (Cri.) 1831), the State has preferred appeal before the Supreme Court against the judgment of the High Court of Maharashtra which quashed the FIR holding, inter alia, that the accused was not a ‘public servant’ as defined under the P.C. Act 1988. The High Court placed reliance on the decision in the case of P.Venku Reddy(supra). It is relevant to note here that the aforementioned decision was rendered in a case covered by the P.C. Act 1947 and not under the statute which is applicable in the present case. Considering the definition of the expression ‘public servant’ defined in Section 21 of the I.P.C. which was adopted in the P.C.Act, 1947, the Court took the view that members of the managing committee and chairman of the co-operative societies under the Maharashtra Co-operative Societies Act are not public servants. The P.C. Act, 1988 which is relevant for the purpose of the case in hand, the definition of the expression ‘public servant’ is different.

The question for consideration is whether the accused in the present case comes within the purview of the aforementioned clauses or any other clause of Section 2(c) of the P.C. Act, 1988. For determination of the question, enquiry into facts, relating to the management, control and funding of the society, is necessary to be ascertained. The High Court in its order has not considered this question at all. It has proceeded on the assumption that Section 21 of the I.P.C. is the relevant provision for determination of the question whether the accused in the case is a public servant. In the context of the facts and circumstances of the case, it will be appropriate that the trial Court should consider the question if it is raised by any party. The judgment under challenge being unsustainable was set aside.

• In State of Madhya Pradesh v. Rameshwar & Ors.(2009 (3) KLT Suppl.1636 (SC) = (2009) INSC 694: (2009) 11 SCC 424: (2009) 3 SCC (Cri.) 1421) the respondents were
directors of the Indore Premier Co-operative Bank Ltd., and were also members of loan committee for sanctioning loans. The trial Court framed charges against them under Sections 409, 420 and 120-B of the I.P.C. together with Sections 13(1)(d) read with
Section 13(2) of the P.C. Act, 1988. On revision, the Indore Bench of the Madhya Pradesh High Court set aside the aforesaid order passed by the Special Judge.

The criminal appeal filed by the State was allowed by the Apex Court on the ground that the High Court also did not, while considering the definition of the expression ‘public servant’, taken into account the fact that the decision in Laljit Rajeshi Shah’scase (supra) was no longer applicable in view of the amended provisions of Section 2(c) of the P.C. Act, 1988, defining the said expression. Prima facie, the respondents in their capacity as the Chairman and Executive Officer of the bank, come within the definition of ‘public servant’ under Section 2(c)(ix) of the 1988 Act. The charges framed by the trial Court against the respondents were restored.

• The issue that arises for consideration in State of Maharashtra & Ors. v. Brijlal Sadasukh Modani, (2016 (1) KLT OnLine 2144 (SC) = (2016) 4 SCC 417) is whether a multi-State society which handles crores of rupees and the persons who handle such huge amount of money should be allowed to escape the rigour of corruption charges under the 1988 Act on the ground that they do not come under the ambit and sweep of Article 12 of the Constitution or solely because the construction placed under Section 2(c)(ix) of the 1988 Act.

It is manifest that stress has always been laid down on Section 2(c)(ix) as a conse-quence of which the fallout is that the registered co-operative society must have received financial aid from the Central or State Government or any other institution mentioned therein. Even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. As the term ‘aid’ has not been defined, a sprinkle of aid to the society will also bring an employee within the definition of ‘public servant’. The concept in entirety has to be understood in the backdrop of corruption.

It was entirely unnecessary on the part of the High Court to enter into elaborate deliberation to arrive at the conclusion that the respondent was not a public servant. It would be apposite that it is left to be dealt with the course of trial whether the society concerned has ever been granted any kind of aid or not. The appeal was thus allowed and the judgment of the High Court of Bombay was set aside. It was directed that the issue whether the respondent is a public servant or not shall be gone into during the trial.

• In the case of Central Bureau of Investigation, State of Madhya Pradesh v. P.G.Jainreported in (2016 (2) KLT OnLine 2513 (SC) : (2016) 12 SCC 360 : (2017) 1 SCC (L&S) 401:
2016 (4) SCALE 13; AIR 2016 SC 1225), the Assistant Manager of the National Co-operativeConsumer Federation was sought to be prosecuted. The Supreme Court applying the same law as in the case of P.Venku Reddy(supra) came to the conclusion that in that case the society was performing such functions and duties that it was amenable to the provisions of the P.C. Act, inasmuch as the employee working under the said co-operative society was a public servant keeping in view the nature of his duties performed and then also came to the conclusion that the Federation was financially aided almost to the extent of 85% of the redemption of shares being guaranteed by the Central Government.

• In Criminal Revision No.1369 of 2001, decided by the Punjab and Haryana High Court
on 21.11.2001, titled as Dharam Singh v. State of Haryana, the petitioner was the General Manager of Sonepat Central Co-operative Bank, Sonepat and was caught red handed while accepting bribe from complainant. The question arose as to whether the petitioner was a public servant within the meaning of the Act, as the Special Judge, Sonepat had framed charges against petitioner Dharam Singh under the Act. While dismissing the petition, it was held that the petitioner was a General Manager who held office by virtue of which he was required to perform public duties, meaning thereby, that he was required to perform duties for the discharge of which the State, the public or the community at large has an interest. General Mangers of co-operative societies certainly perform public duties in which the public and the community have a huge interest.

• In Purshotam Dass v. State of Haryana, (2002 (4) AICLR 712), the Punjab and Haryana High Court held that the officers of the Primary Land Mortgage Bank would be covered under sub-clause (ix) of Section 2 of the P.C. Act inasmuch as the Primary Land Mortgage Bank is a society registered under the Haryana Co-operative Societies Act and deals in banking.

‘Public Servant’ has wider meaning under the P.C. Act

• In Dr.H.Narayan v. State of Karnataka,Manu/KA/1318/2013, the Karnataka High Court has observed that it is not in dispute that Mother Diary is a unit of the Karnataka Milk Producers Federation Limited, a co-operative society registered under the provisions of the Karnataka Co-operative Societies Act. Clause 20.1, 20.2 and 26.8(a) specifies that the Government has control over it. Therefore, any person working in a co-operative society is a public servant. The public servant as enumerated under the provisions of the I.P.C. is different from the public servant as defined under the provisions of the P.C. Act. The word ‘public servant’ in the P.C. Act is having a wider meaning. On the other hand it is very narrow in the provisions of the I.P.C.

• In the High Court of Madras, Writ Appeal in The Joint Registrar/Administrator, Tiruthani Co-operative Sugar Mills Limited, Thiruvalangadu v. P.Siva Kumar & Ors.
(2014 (4) KLT OnLine 1109 (Mad.) : 2014-5-L.W.624 : (2014) 8 MLJ 257, was preferred by the
appellant Joint Registrar against the judgment of the learned single Judge who, while setting aside the order of suspension, held that the first respondent being an employee of the co-operative society (Sugar Mills), is not a ‘public servant’ as defined under the provisions of the P.C. Act, 1988 to attract the provisions of Sections 7 and 13 of the said Act.

On hearing the rival submissions, the Division Bench observed that a perusal of the definition of ‘public servant’ contained in Section 2(c) of the P.C. Act, 1988, particularly with reference to Section 2(c)(iii), it is evident that the first respondent is an employee in a sugar mill established under the State Act, viz., Tamil Nadu Co-operative Societies Act, 1983, which is also partly aided by the Government of Tamil Nadu. The Supreme Court in the decision reported in (2012 (3) KLT OnLine 1006 (SC) = (2012) 12 SCC 331[Ramesh
Ahluwalia v. State of Punjab] considered the term ‘public duty’ performed by the private unaided educational institution and held that since the unaided educational institutions perform public function/ duty, i.e., providing education to children in their institutions throughout India, they are doing public duty amenable to writ jurisdiction. It is beyond doubt that the appellant sugar mill and its employees are performing ‘public duty’ like private aided/unaided recognised educational institutions, coming within the definition of Section 2(c)(viii) of the P.C.Act, 1988. The appellant sugar mill is aided, i.e., receiving subsidy from the Government. It is not disputed that the respondent-accused is in service of a co-operative central bank which is an authority or body controlled and aided by the Government.

In order to curb effectively bribery and corruption not only in Government establishments and departments but also in other semi-Governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of ‘public servant’ has been given in clause (c) of Section 2 of the P.C. Act, 1988. When the legislature has used such a comprehensive definition of ‘public servant’ to achieve the purpose of punishing and curbing growing corruption in Government and semi-Government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of ‘public servant’, therefore, deserves a wide construction. Corrupt practices indulged by ‘public servant’ are alarming and the Courts are bound to widen the scope of interpretation of the words ‘public servant’. The Sugar Mills are performing public duty and the first respondent while working as Cane Officer of Tiruttani Co-operative Sugar Mills, which was created and registered under the Tamil Nadu Co-operative Societies Act, 1983, is a ‘public servant’ within the meaning of Section 2(c) of the Act. In the light of the above findings, the Division Bench was not persuaded to accept the findings given by the learned single Judge and allowed the appeal.

Neither controlled nor aided – Not amenable to the P.C. Act

W.P.No.28641 of 2019 in J.A.Murugan v. The Registrar of Co-operative Societies, Chennaiand another seeks to quash the circular on the file of the 1st respondent.
W.A. No.2253 of 2018 in J.A. Murugan v. The Director, Vigilance and Anti Corruption, Chennai & Ors. (2018 (1) KLT OnLine 3167 (Mad.) is directed against the order dated 2.2.2018 made
in W.P.No.2228 of 2018 of the learned single Judge. Both the cases were heard and disposed by the Division Bench of the High Court of Madras vide order dated 6.3.2020.

The petitioner was working as a Secretary of the Krishnagiri District National Engineering Employees Co-operative Thrift and Credit Society. In J.A.Murugan v. The Director, Vigilance and Anti Corruption, Chennai and othersthe learned single Judge has dismissed the challenge raised by the petitioner to the proceedings, seeking sanction for prosecuting him for offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the P.C. Act, 1988 and the letters by which directions have been issued to initiate prosecution against the petitioner. The contention of the petitioner before the learned single Judge was that he does not fall within the definition of public servant under Section 2(c)(ix) and therefore, proceedings cannot be initiated against him under the P.C. Act, 1988.

In W.P.No.28641 of 2019 challenge is made to the circular issued by the Registrar of Co-operative Societies, by which the Registrar has issued instructions making the PC Act applicable to the employees of co-operative societies on the ground that they are public servants within the definition of clause(c) of Section 2 of the P.C. Act.

This circular has been challenged on the ground that an omnibus exercise by bringing the employees of the co-operative society within the purview of a penal Act can be done only through a legislation and not by an executive act of an Officer of the State inasmuch as the power to police and punish is of the State and unless such power is conferred on any authority by an appropriate legislative exercise, the Registrar could not have exercised any such authority in law. It is urged that the applicability of a Central Act with penal consequences is solely within the competence of the Legislature that has the authority to legislate on this subject and therefore, the Registrar has transgressed constitutional limits by virtually issuing a circular that tends to legislate for which there is no power conferred on the said authority. It is therefore, liable to be struck down as being ultra viresinasmuch as it prejudices and impinges the fundamental right guaranteed to the petitioner under the Constitution and is also ultra viresof the provisions of the P.C. Act.

The respondents advanced their argument that the society is taking loans from the Central Co-operative Bank and in turn, the Central Co-operative Bank is aided by the State Government in its financial transactions. Therefore, the society in question should also be treated to be a beneficiary of such aid and consequently, would be a society controlled and aided by the State Government. The central issue, therefore, is as to whether the
petitioner/appellant who is the Secretary of a society would be construed to be performing a public duty so as to construe him to be a public servant for the purpose of bringing him within the fold of the P.C. Act, 1988 and consequently, as to whether the Registrar of
Co-operative Societies had the authority to issue the impugned circular thereby bringing all employees of every category of co-operative society within the fold of P.C. Act.

The appellant would contend that just because the overall functioning of the society comes under the control of the Registrar under the Co-operative Societies Act, it does not mean the State Government or Central Government has got any say in day to day functioning of the society. Strong reliance was placed on the judgment of the Apex Court in Thalappalam Service Co-operative Bank Ltd., v. State of Kerala & Ors.
(2013 (4) KLT 232 (SC) = 2013 (12) SCALE 527 : 2013 (6) CTC 98 : (2013) 7 MLJ 407 :
2014-1-LW. 273: RTIR IV (2013) 75 : (2013) 16 SCC 92). The employees of the co-operative society cannot come within the four corners of the definition of public servant and therefore, prosecution against them cannot launched under the P.C. Act.

The society in which the appellant is working is only for the employees working in private companies in Krishnagiri and is not open to public at large. The fact that the
co-operative society takes loan from the Central Co-operative Bank and repays it back does not mean that the State Government grants any aid to the society. There is no material to even remotely suggest that the society in question receives any aid financial or otherwise from the State or Central Government. The society, therefore, is neither controlled nor aided so as to make its employees amenable to the P.C. Act. Consequently no permission could be granted to sanction prosecution of the writ petitioner under the P.C.Act. The Registrar of Co-operative Societies cannot expand the definition of a public servant under the impugned circular. He does not have any authority to do so. It is completely in the domain of the legislature to define or lend a meaning to the terms in the Act. It is well settled that a definition in a statute with penal consequences must be construed strictly. The circular of the Registrar which states that all employees of all co-operative societies would be amenable to the prosecution under the P.C. Act and they all are coming within the definition of public servant has no basis and is contrary to the statute and deserves to be struck down.

As a result, the Writ Petition was allowed and the circular of the Registrar was quashed. The Writ Appeal stood allowed and the order of the learned single Judge was set aside. The letters issued sanctioning prosecution was also quashed.

Sequitur

•   An office-bearer or an employee of a co-operative society cannot be held to be a ‘public servant’ for the purpose of Section 21 of the I.P.C. and as such, cannot be proceeded against for offences under Section 5(1) read with Section 5(2) of the P.C. Act, 1947.
• The State can amend the I.P.C. and expand the definition of the ‘public servant’ under Section 21 of the I.P.C. so as to bring an officer or employee of the co-operative society within the purview of the I.P.C. and consequently within the ambit of the P.C.Act, 1947.
• The P.C. Act, 1947 was repealed by the P.C. Act of 1988. The new Act has enlargedthe scope of ‘public servant’. In the expansive definition of ‘public servant’, officer-bearers of a co-operative society which is engaged in trade among others in banking and receiving or having received any financial aid from the Central or State Government are included. The employees or servants of a co-operative society which is controlled or aided by the Government are covered by Section 2(c)(iii) of the P.C. Act, 1988.
•  Even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. As the term ‘aid’ has not been defined, a sprinkle of aid to the society will also bring an employee within the definition of ‘public servant’. The concept in entirety has to be understood in the backdrop of corruption.
•  The public servant as enumerated under the provisions of the I.P.C. is different from the public servant as defined under the provisions of the P.C. Act. The word ‘public servant’ in the P.C. Act is having a wider meaning.
•    An employee of a co-operative society which is not aided or controlled by the Government does not fall within the definition of public servant under Section 2(c)(ix) and therefore, proceedings cannot be initiated against him under the P.C. Act, 1988.

Expanding Scope of “Public Servant” Under the Prevention of Corruption Act –

An Analysis

(By Ajit Joy, Advocate, High Court of Kerala)

email:ajit.joy@gmail.com

During the Covid-19 lockdown period, a three Judge Bench of the Supreme Court pronounced a significant Judgment under the Prevention of Corruption Act 1988 (P.C. Act). The Judgment of 27th April 2020 in State of Gujarat v. Mansukhbhai Kanjibhai Shah(2020 (2) KLT OnLine 1143 (SC) = 2020 SCC OnLine SC 412),expanded the reach of the P.C. Act, with the essence of the judgment being, a private deemed university is covered under the definition of ‘University’ and the Trustee of the university is a ‘public servant’ under P.C. Act. This decision, further widening the scope of the definition of “public servant,” is in line with the pattern of expansive interpretation of the term public servant noticed in earlier decisions of the Supreme Court.

In C.B.I.v. Ramesh Gelli(2016 (2) KLT OnLine 2020 (SC) = (2016) 3 SCC 788), the Apex Court held that the Chairman, Directors and officers of a private bank before its amalga-mation with a public sector bank, can be classified as public servants for prosecution under the P.C.Act. In these decisions, the Court reiterated evolved principles that have tilted towards increasing the effectiveness of anti-corruption laws along with widening the scope of the expression “public servant” which were among the key objects of the 1988 P.C. Act. The court weighed in towards building a corruption free society and improve anti-corruption efforts. I shall be arguing that this expansive interpretation of the term “public servant” would contribute to vagueness and uncertainty, undesirable to penal statutes.

When Parliament in 2018 considered amendment to the P.C.Act of 1988, it had the opportunity to actually widen the scope of the definition of ‘public servant.’ However, it chose to continue with the existing definition. During the amendment, it had to consider giving effect to the United Nations Convention against Corruption (UNCAC) ratified by India. This Convention provided for inclusion of bribery and corruption in the private sector as an optional provision. However, the Indian Parliament did not opt for it, and kept out corruption in the private sector from the ambit of the P.C. Act. During deliberations on the amendment, the provisions of the UK Bribery Act 2010 were closely considered. The UK Act, significantly, is not restricted to Public Servants. ‘All persons’ are bought within the ambit of the Act. However, we did not follow it. Our Parliament stuck to public servants alone being included within the Act. In this context, the Parliament, having rejected the inclusion of other categories, bringing them in, by expanding the definition of “public servant” by the Supreme Court, might be problematic.

In contrast the US Supreme Court has been highly conservative in interpreting provisions of their Bribery Act.¹ Acts by public officials which would in normal circumstances be termed corrupt, were recently, unanimously, rejected by the US Apex Court giving a strict interpretation to the term “public office”. Their thinking has been that vague corruption laws warrant a narrow construction.²

Ambiguity in the Definition of Public Servant  

P.C. Act in Section 2(c) lists categories of persons as “public servant.” Section 2(c) starts with the words, “public servant means”- and then lists those 12 categories. Thus, only persons belonging to those 12 categories are intended to be public servants. Nevertheless, the category that has provided ambiguity is the one in Section 2(c)(viii), which reads, “any person who holds an office by virtue of which he is authorised or required to perform any public duty.” “Office” had not been defined in the P.C. Act. It is not clear if this office is public or includes private office. It is also not clear when a person could be stated to be “holding an office.”

Public Duty has been defined in Section 2(b), although, somewhat vaguely as-“public duty” means a duty in discharge of which the State, the public or the community at large has an interest.

Explanation.- In this clause “State” includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);

The only other place apart from Section 2(c)(viii), where “public duty” has been mentioned, is Section 2(c)(i). However, the construction of Section 2(c)(i) that reads, “any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;” leaves no room for ambiguity unlike Section 2(c)(viii), wherein, both office and public duty that includes duty to public or duty to community at large are wide terms. Section 2(c)(viii), is the definition that Courts have been using, to expand the definition of public servant.

The resultant problem is that, the scope for interpreting the definition of the term “public servant,” aided by certain vaguely framed terms like “public duty” and “office,” in the P.C. Act has led to rather contradictory interpretations. While trial courts interpret public servant in a particular manner, High Courts reject it and then the Supreme Court gives a wide definition, giving rise to uncertainty and ambiguity. Given the vagueness, it would have been desirable for the courts to follow a narrow interpretation.

State of Gujarat v. Mansukhbhai Kanjibhai Shah(2020 (2) KLT OnLine 1143 (SC) = 2020 SCC OnLine SC 412)

In this case, the respondent was the trustee of a Charitable Trust, which established the Sumandeep Vidyapeeth, a deemed university. The de factocomplainant’s daughter was a MBBS student in the university who had paid the fees as per terms. At the time of the final year exams, the respondent trustee called the parents and demanded payment of `20 lakhs in order to make the student eligible to sit in the exams.  The aggrieved parents then registered a F.I.R. and the investigations were carried out by the Gujarat State Anti-Corruption Bureau.

The respondent filed a discharge petition before the Sessions Court, which rejected the petition. The Gujarat High Court allowed a Criminal Revision Application and discharged the respondent trustee.  The High Court held that a deemed university cannot be considered as a regular University and thereby the respondent cannot be termed as a public servant under the P.C. Act. Aggrieved by the impugned order, the State of Gujarat approached the Apex Court.

The questions before the Supreme Court were:

1. Whether the respondent, who is the trustee in the Sumandeep Charitable Trust sponsoring the Deemed to be university, a public servant under Section 2(c) of the P.C. Act?

2. Whether the ‘Deemed University’ is covered under the provisions of “university” as defined in  S.2(c)(xi) of the P.C. Act?

The Court proceeded to answer the above issues, guided by certain ground rules, in the context of widespread corruption ailing the nation.  The Court underlined the legislative intent of the P.C. Act, which was to bring about transparency and honesty in public life. The Court observed that corruption in India affected all walks of life, resulting in the undermining of constitutional aspirations of economic and social justice on a daily basis. The Court reaffirmed the principle derived in Subramanian Swamy v. Manmohan Singh(2012 (1) KLT SN 79 (C.No.90) SC = (2012) 3 SCC 64)as guidance in interpreting the P.C. Act -

“Therefore, the duty of the Court is that any anti-corruption law has to beinterpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.”

The respondent’s side argued that it is a settled principle of law that a criminal statute has to be construed strictly. In cases where two interpretations are possible, the courts must lean towards the construction which exempts the subject from penalty rather than the one which imposes it. Rejecting this, the Apex Court stuck to the interpretation that would aid in penalising corruption as asserted in the Subramanian Swamycase above.

The Court provided an expanded interpretation of ‘public servant’ under the P.C. Act to include those who may not conventionally fall under such definition. The test, according to the court, to determine whether an individual is a public servant is to evaluate the nature of the duty performed rather than to look at the position occupied.  The Court clarified that “the purpose under the P.C. Act was to shift focus from those who are traditionally called   public officials, to those individuals who perform public duties.” On this basis, “it cannot be stated,” said the Court that “a “Deemed University” and the officials therein, (do not) perform any less or any different a public duty, than those performed by a University simpliciter, and the officials therein.” The Court therefore held that the High Court was wrong in holding that a “Deemed University” is excluded from the ambit of the term “University” under Section 2(c)(xi) of the P.C. Act.

In the context of Section 2(c) of the P.C. Act, the Court observed, “… the legislative   intention was to not provide an exhaustive list of authorities which are covered, rather a general definition of ‘public servant’ is provided thereunder.” This widening of the term public servant is surprising because Section 2(c) starts with the words, “Public Servant” means,- and then goes on to list 12 specific categories. Therefore, it could be argued that the legislative intent was to provide a certainty on who all ought to be considered as public servant and for that purpose listed 12 sets of personnel with close relation to public functions.

In C.B.I. v. Ramesh Gelli(2016 (2) KLT OnLine 2020 (SC) = (2016) 3 SCC 788), the Apex Court dealt with the question as to, whether Chairman, Directors and officers of a private bank before its amalgamation with a public sector bank, can be classified as public servants for prosecution under the P.C.Act. The respondents in this case were the Chairman/Managing Director and Executive Director of the Global Trust Bank, charged by the C.B.I. of diverting funds from the bank to related companies owned by the same accused.  The accused took the contention that, as officials at the helm of a private bank, they were not public servants. They were thus successful in securing, a discharge from the C.B.I. court, which was upheld by the High Court. The Supreme Court, set aside the discharge, in light of the expanded ambit of the P.C. Act and its object of curtailing corruption. According to the court, definition of public servant given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, would bring the respondents within the definition.

Who is a public servant under the P.C. Act according to the Court in the Gellicase is to be seen in the context of Section 2(c) (viii) of the P.C. Act which associates a public servant with an “office” charged with performing a “public duty.” Public Duty is defined quite widely in Section 2(b) of the Act, in line with the objective of reducing corruption in the country. The word “office” as held in P.V.Narasimha Rao v. State (CBI/SPE)((1998) 4 SCC 626) has been understood as “a position or place to which certain duties are attached specially one of a more or less public character.” Justice Gogoi, in fact, in the Gellicase cautions that, “such a wide understanding of the definition of public servant may have the effect of obliterating all distinctions between the holder of a private office or a public office which, in my considered view, ought to be maintained. Therefore, according to me, it would be more reasonable to understand the expression “public servant” by reference to the office and the duties performed in connection therewith to be of a public character.”

In  Manish  Trivedi  v. State  of  Rajasthan (2013 (4) KLT OnLine 1109 (SC) = (2014) 14 SCC 420), relating to a case under the P.C. Act against a Councillor, the Supreme Court elucidated upon the ambit of the phrase “public   servant” by stressing upon the relevance of “office”, with emphasis  upon the duties performed. The Court said, “Councillors and Members of the Board are positions which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it (hence an office). They perform various duties which are in the field of public duty,” and hence are public servants under the PC Act.

The US Supreme Courts Position on Bribery of Public Officials 

In contrast to the expanding definition to the coverage of the PC Act being given by the Indian Supreme court, the US Supreme Court has been narrow in interpreting the 18 U.S. Code § 201 related to Bribery of public officials and witnesses. The Supreme Court was called to interpret “official act” in Robert F. Mcdonnell v. United States(579 US_(2016))³. This was an appeal in a case where the Virginia Governor Bob McDonnell, was convicted in 2015 on bribery charges for taking $175,000 in expensive gifts and personal loans, from a businessman. The charge against the Governor was that he committed or agreed to commit an “official act” in exchange for the loans and gifts.

The case of the Government was that, McDonnell committed at least five “official acts,” including “arranging meetings” for the businessman with other Virginia officials to discuss products manufactured by him and “hosting” events for the businessman at the Governor’s Mansion. The Section 201(a)(3) defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

The Court rejected the Government’s reading of the Section and adopted a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event was held not to qualify as an “official act.” The court opined that, something more is required. The section, explained the court, specifies that, the public official must make a decision or take an action on that question or matter, or agree to do so. Government’s expansive interpretation of “official act” would raise significant constitutional concerns of due process. The Supreme Court held that Section 201 prohibits quid pro quocorruption—the exchange of a thing of value for an “official act.” In this case, a quid or favour was received, however, the Governor calling a meeting or hosting an event by itself would not be a “quo” qualifying as an official act.

In an earlier case too, the US Supreme Court had given a similar restrictive construction to Section 201 of the Bribery Act. In that case it was held that, hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter.⁴

Conclusion

Rule of law is foundationed on the principles of certainty and predictability, more so in the context of criminal laws, violation of which is subject to sanctions. The general population who fall within the jurisdiction of penal laws ought to be clearly aware of what conduct would constitute an offence. It would be anathema to criminal laws to have offences, the subject of interpretation and discretion. In the case discussed above, the US Supreme Court unanimously rejected the contention of the government side for the reason that, vagueness of terms in the bribery law could encourage arbitrary and discriminatory enforcement. To the US Court, to condemn someone to prison for up to 15 years without proper notice on what would amount to a crime of bribery was of serious concern. And therefore the Court thought it fit to offer a bounded interpretation to steer clear of the abyss of vagueness.

Two of the cases our Supreme Court discussed above have seen different outcomes in the trial court, High Court and Supreme Court on the question of who is a “public servant”. This means that there is lack of clarity borne out of interpretation of ambiguous provisions in the P.C. Act relating to public servant. The effect would be the carrying forward of this lack of clarity to the police station level, where the officer in charge can apply his discretion in registering offences under the P.C. Act, which would be nothing but the tyranny of laws.

There is also another issue attached to the inclusion of a persons as public servant. Public servants, in order to be prosecuted need a sanction for prosecution from their concerned department as per the P.C.Act. As per the new amendment, for a private complaint or an F.I.R. to be registered under the P.C.Act there needs to be an approval from the appropriate government authority. For traditional categories of public servant, there is a sanctioning authority. However, when newer categories are included by interpretation, they do not have a department or authority, fit enough to accord or reject sanction to prosecute. There is no proper guidance on the issue of their prosecution, which means, simply by expanding the scope of the P.C. Act, the protections conferred under it would not be extended to the new categories of public servants.

In the interest of certainty, it is best that Indian courts embark on a strict construal of a “public servant” and attendant terms like “public duty” and “office”. If courts feel free at interpretation, then ambiguity rules and precision that is required in criminal statutes is lost.  Which means that “rules” which ought to govern criminality, gives way to principles established by the Court.

Foot Notes

1.  18 U.S.C. § 201 - U.S. Code - Bribery of public officials and witnesses

2.  See, Robert F. Mcdonnell v. United States 579 US_(2016) at https://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.PDF

3. 136 S.Ct.2355 (2016).

4.  United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999).

Distraught Are Those Who Revere

(By P. Rajan, Advocate,Thalassery)

It is no gainsaying that democracy becomes stupendous only when the co related factors – executive, legislature and judiciary work in tandem. Judiciary being supreme, is not subservient to the other two as is the last bastion, especially the constitutional courts. Democracy in India, being populous also acclaimed to be progressive but seems to be on decline on evaluating the prevalent developments and occurrences. Court’s role is pivotal and no second fiddle to the executive either. Our Supreme Court’s glory is indisputable when the famous judgments are considered. Celebrated judgments inA.K.Gopalan’sand Kesavananda Bharathi’s and more are proof of this. Full Bench comprising more than 10 judges had heard these type of matters, weeks together.  Doyens like N.A.Palkhivala and many other senior lawyers appeared and argued in those cases and verdicts remain landmark forever. At the inception, in the early days C.J.I.s like H.J.Kania, Pathanjali Shastri and several such legal luminaries were conscious of the constitutional and judicial tenets and without any inhibitions admitted of the fallibility of courts,  still there was no room for pejorative remarks against such judges due to their imperious approach to the system.  Change did occur notably during the emergency days when the ruling party became dissatisfied about the orders being passed against it. Inexcusable interference resulted in bypassing seniority of Supreme Court Judges in order to appoint a junior Judge to the
C.J.I.’s post, resultantly 3 Judges had to suffer denial of recognition, great H.R.Khanna among the 3, put in his papers.

By passage of time the credibility and repute even of the C.J.I.s were suspected, accused of serious charges. K.G.Balakrishnan was accused of his kin’s suspected amassment of wealth,Ranjan Gogoi had to face sexual assault complaint by a woman worked under him. In these two instances, data though were furnished enquiry did not reach at logical conclusions.

One is reminded of the tirade of Justice C.S.Karnan, rarest in the judicial history
(C S Karnan in re– (2017) 7 SCC page 1 ). He while acting as High Court Judge sentenced Supreme Court Judges and even now after retirement continues to post objectionable remarks on social media against judges despite 6 month’s jail term he remains inane and immutable. It is strange, nobody thought of resorting to Article 124(4) and 124(5) of the Constitution to impeach such a mischievous Judge. This is a sad reminder and evokes in-eligible entry of persons to the higher courts, ability and integrity getting compromised.

It is to be recalled when M.N.Venkatachaliah was sworn in as Supreme Court C.J. in 1993, then Prime Minister Narasimha Rao observed, he looked forward to a cordial relationship between the Court and the Government, but the reply from the Judge was spontaneous and candid- cordiality between the Government and the Court has no place in our constitutional scheme of checks and balances. Such were the personalities adorned the Apex Court earlier.

Orders of the Supreme Court also often at present become matter of debate not on the legality but on the selective nature.  Arnab Goswamy, a TV supremo was released on bail within days while his applications were pending before the lower courts, but persons like Barbara Rao, Stan Swamy and journalist S.Kappan’s plea for identical relief remains un-answered by the Court. Another controversial issue now cropped up is the letter published and sent to Chief Justice Bobde by A.P.Chief Minister J.M.Reddy accusing Justice
M.V. Ramana of the Supreme Court who is set to take over as CJI in 2021, in interfering the matters of the High Court and influencing it. When Attorney General’s attention was drawn to this letter for his consent to proceed against the Chief Minister under the Law of Contempt, AG declined but remarked that it is an act of ‘suspect’. These developments show the judiciary becoming a soft target of criticism well founded or with ill motive. Scandalous and objectionable remarks often being raised unmindful of the legal consequences. Executive in the country is based on politics and it comprises persons of questionable antecedents also. Floor crossing and `resort maneuvering’ became the order of the day to gain power. Election laws or parliamentary procedures remain powerless and mute to such instances. Present day politics is the final option of not only celebrities from different fields, even retired judges are desirous  of getting attention by political leaders for occupying key posts.

When democracy is to function successfully with the co-ordination of executive, legislature and judiciary the persons related to this trio at least at the helm must be able, honest and self-less. It is worth remembering the opinion of late senior lawyer and Central Minister Arun Jaitley- there are two types of judges, those who know the law, and others who know the Law minister. No eyebrows were raised on this comment, but adored several. Citizenry expects effective functioning of the judicial system and its duty in short is to shed light not heat.

“There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts”                                                                      -- Mahatma Gandhi

Lifting the Veil of Shadow Pandemic

(By Varun V.M., Advocate, Trivandrum)

From womb till coffin women are prone to act of violence. Violence against women begins with sex-selective abortion caused by son-preference attitude of parents, takes form of heinous practices like female genital mutilation, child abuse and mal-nourishment during her childhood, aggravates to various forms of abuses during her adolescence, reach its peak on stepping womanhood, which continues till her death bed. In other words being born female makes her vulnerable to act of violence.

Social menaces like poverty, illiteracy, violence affects both men and women, but its severity is more experienced by women. Of all human rights violations, violence against a person is the drastic one due to the severe consequences ensued. Violence against women is analogous to terrorism; whereas the latter is unlawful use of violence against civilians which is crime against humanity, the former targets women and her human rights. Like a lethal weapon, violence can cause fatal outcomes including death and can have both short term and long term effects on her health. If violence against women were deemed contagious disease it would be nothing less than a global pandemic, being a common threat faced by women across the globe, yet, the least recognized human rights violation in the World.

In an ideal setting, for a foetus her mother’s womb and later her parent’s arms are her safest shelter. On reaching womanhood shared household with her intimate partner is the safe place where she spends rest of her life. But in reality each shelter has turned to a place of vulnerability and specifically shared household has turned to a place of domestic violence. A study by World Health Organization indicates that globally every one in three women have experienced domestic violence in their lifetime and WHO recognizes domestic violence as both women’s human rights violation and major public health problem.¹

Domestic violence is both ‘cause’ as well as an ‘effect’. Domestic violence is effect, because it is the end result or consequence of various ‘factors’ and ‘experiences’. Therefore while analyzing the root causes of domestic violence, we presume that man is not inherently violent in nature, it is certain factors and experiences that makes him perpetrator of violence. Therefore in the absence of following factors and experiences instances of domestic violence would curtail:

•    Illiteracy: The Sustainable Development Goals recognize the importance of providing education to all, especially to girls and women, as it can effectively reduce the inter generational inequality faced by women. Providing education is no more a concern of economic growth but it is a matter of human rights. Denial of education especially to women makes them unaware of their rights and they bear the abuse silently as matter of their ill fate.

•    Witnessing family violence: A child who has been witnessing and experiencing violence in his family become used to it and later in life he tend to become
perpetrator of violence. Also a bed rocked myth is planted in his mind that women are possessions that men can control and she is subordinate to him. This myth is the major cause of domestic violence resulting from physical and mental abuse.

•    Economic inequality: Unequal distribution of wealth is the primary cause of economic inequality among genders. The best example to illustrate this factor is Hindu Succession (Amendment) Act, 2005 which recognized right of daughter in the coparcenary property as she would, had she been a son and she shall be allotted same share as is allotted to a son. Needless to say, the situation prior to 2005 can be understood without any explanation. Second reason causing economic inequality is the broad gender wage gap. As a result of lower income levels of women they ultimately become economically dependent on men.

•    Alcoholism: This is the major factor that causes as well as catalyzes domestic violence. Alcohol use adversely affects cognitive and physical function of a person and he tends to resort to violence instead of resorting to non-violence resolution of conflict. Alcoholism is the major cause of peak in number of domestic violence cases in India during lockdown. As the beverage outlets are closed alcohol addicts have no access to alcohol which makes them violent and women become victims of domestic violence, the shadow pandemic.

•    Ideologies of male sexual entitlement: The patriarchal idea that women are solely meant for reproduction and to provide sexual pleasure to men is a factor that causes domestic violence resulting from sexual abuse.

•    Other factors: Antisocial personality disorder, marital discord and dissatisfaction, beliefs in family honour and sexual purity etc.

Coming to domestic violence as a cause of women’s human right violation and major public health problem, the consequences ensued from act of domestic violence shows that it causes both short term and long term impact on women’s physical, mental, psychological and emotional health. Following are the consequences of domestic violence on women’s health:

•    Domestic violence can have fatal outcomes like suicide or homicide.

•    Sexual violence against women can lead to unintended pregnancies, abortions and can increase vulnerability to Sexually Transmitted Diseases

•    Domestic violence during pregnancy can cause miscarriage and still birth.

•    Physical injuries resulting from physical abuse can cause severe pain and affects mental health as it can cause depression and post-traumatic stress.

•    Sexual violence, particularly during childhood, can cause behavioural changes leading to alcohol, drug abuse and projects risky sexual behaviours in later life.

The object of discussing impact of domestic violence on women’s health is to support the argument that women’s health and human rights are co-existing. According to WHO’s definition “health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”²Further, the definition of domestic violence contained in Section 3 of Protection of Women from Domestic Violence Act, 2005 states that domestic violence includes any act or omission causing physical, emotional, mental and economic abuse against women. A combined reading of both definitions would make it clear that domestic violence is a form of structural violence’ which poses threat to both women’s health and her human rights and eradicating domestic violence would not only guarantee her rights but also improve her health status.

Discussing the ‘cause’ and ‘effect’ of domestic violence is essential because latter explains the root-causes of domestic violence, in other words it raises an argument that domestic violence is end result of various factors and experiences while the former discusses domestic violence as cause of major public health problem and women’s human right violation. Keeping this understanding let us analyze the existing scenario of lockdown and check on the adequacy of measures taken to combat domestic violence. The object is to find out whether the legal framework is addressing the root causes of domestic violence and makes endeavour to eliminate domestic violence or is it merely remedial in nature?

When it comes to legal framework, “The Protection of Women from Domestic Violence Act, 2005” is the special law which provides for effective protection of rights of victims of domestic violence. The definition of domestic violence under Section 3 is not exhaustive in nature and it covers all acts and omissions causing domestic violence which includes physical, sexual, emotional, verbal and economic abuse. The Act deliberate on the manner in which the law is set into motion in the event of domestic violence and it also sets out legal remedies available to victim. In short the definition, mechanism and remedies contained in the Act are sufficient enough to protect the rights of victims of domestic violence. But the question is how many are aware of the existence of this Act and legal remedies contained in it? The problem here is lack of awareness. No much effort has been taken by Government to publicize about the Act, as a result many are ignorant about the legal remedies available and the silent cry of victims remains unheard during lockdown. In reality the terror caused by shadow pandemic is in par with coronavirus pandemic.

Though not in strict sense, lockdown is similar to house arrest. Lives of people are restricted within four walls of their home. This along with fear of unemployment, economic instability, poverty and starvation builds up frustration and this rage is taken on women who were already vulnerable to domestic violence. Being locked down at their home, women are left alone with abusers and they don’t have access to friends or relatives for help nor can approach legal institutions. The victims are left with no choice other than to suffer silently. This situation is no different from leaving a lamb with a butcher in a closed room. Taking into account the silent cry of women the Courts, National Commission for Women and various State Governments have taken pro-active steps to protect the victims of domestic violence. Following are some measures taken:

•    In furtherance to the order of Hon’ble High Court of Delhi, the women and child development department of Delhi NCR has opened 24*7 helpline service to help victims of domestic violence and when information is received immediate measures are taken to rescue victim(s).

•    Honorable High Court of Jammu & Kashmir took suo motu cognizance of domestic violence cases amid lockdown, directed the Government to increase
availability of call-in services, to designate informal spaces for women where they can report abuse without alerting the perpetrators and conduct awareness campaigns.

•    The National Commission for Women has introduced special helpline number via Whatsapp and started accepting complaints via e-mail.

•    Uttar Pradesh police launched “suppress corona not your voice” campaign to rescue victims of domestic violence and ensuring their relocation to shelter homes.

It is noteworthy that measures taken are in positive direction to curb the ‘effect’ of domestic violence. But, the measures taken are inadequate when we look at statistical rising of domestic violence cases. Needless to say, the current measures are offering only a temporary relief which is oriented towards rescue and rehabilitation of victims. The law is set into force only on the happening of domestic violence; i.e., when a woman turns to a victim. Simply put, the current initiatives are only addressing the effect of domestic violence and not its causes. It is similar to treating the symptoms instead of disease.

The Protection of Women from Domestic Violence Act, 2005 is not the sole solution to the issue of domestic violence. It is merely a remedial law that comes into action on happening of domestic violence. It doesn’t address the issues causing domestic violence, instead it only provides for certain legal remedies which the victims can avail. In other words the Act of 2005 deals only with ‘effect’ of domestic violence and not its causes.

We cannot ignore the fact that domestic violence is the outcome of certain factors and experiences, without addressing which domestic violence cannot be eradicated. The need of the hour is a mechanism which simultaneously addresses both ‘cause’ and ‘effect’ of domestic violence. For dealing with effect we already have an efficient legal framework in force which is Act, 2005. When it comes to cause part, what we need is a mechanism which comes into action before a woman turns to a victim of domestic violence and for that we have to strengthen the implementation of already existing social welfare programmes for women, especially the ones focusing on providing education. In addition to reconducting awareness programs through community organizations, organizing legal aid camps at regular intervals, reducing gender-wage gap, strengthening health care facilities, improving the employment prospects of women, promoting the idea of women empowerment as collective responsibility of all are some positive measures which can be adopted to eradicate the causes of domestic violence. A joint action on both ‘causes’ and ‘effect’ would eventually eradicate this menace.

At last, we must acknowledge the fact that shadow pandemic is the result of darkness within us. Let us lift the veil of shadow through thamasomajyothirgamaya by lighting our hearts and minds with virtues of humanitarianism which our great culture taught and together we will overcome both pandemics.

Foot Note:

1.World Health Organization, Violence against women, available at https://www.who.int/news-room/fact-sheets/detail/violence-against-womenretrieved on May 06, 2020 at 12:33 hr.