Sabarimala – Religion Versus Secularism:

(By M.K.S. Menon, Advocate, Supreme Court of India)

A. By the order dated 14.11.2019, Majority of the 5 Judge Constitution Bench referred following issues to the 7 Judges Bench:

(i)   Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.

(ii)  What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.

(iii)The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.

(iv)The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.

(v)  What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.

(vi)Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.

(vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The above questions arose because the judgment in the main Writ Petition (here in after shall be referred to as main judgment) had mainly considered the judgment applying the principles of ‘Constitutional Morality’ coupled with ‘Untouchability’ an undefined offence. In support 4 Judges in majority took the assistance of Article 14, 15, 17 and 25(2)(b) to bring home the point. However Justice Indu Malhotra refused to read ‘Constitutional morality’ into Article 25 (Morality with a different degree of perfection other than an ordinary sense attributable to simple morality as understood by common man), because such an interpretation shall mutilate the Constitutional fabric. It is a fact that Article 14 is all pervasive and whereever there are exceptions drawn, appropriate safeguards are provided in those Articles in Part III of the Constitution, like “subject to public order, public morality and public health”. Reading it as “constitutional order, constitutional morality and constitutional health” would be an over board interpretation making the intention of the framers otiose. In her dissenting judgment she also went into the question of locus of the petitioners in the Writ Petition, who invoked the writ jurisdiction of the Hon’ble Court to decide an issue pertaining to a ‘believer’, to which admittedly the petitioners do not belong. In the nutshell she held that when Religious belief and freedom enshrined in the Constitution which accepts the spirit and essence of all religions cannot be permitted to be questioned by those who work against the religious beliefs as long as the religious practices. In fact those practises complained against, were not forced upon them by anyone including the State. Public Interest litigation cannot be resorted to pursue a personal interest (pursuing their own personal interest to propagate their own ideology) especially when none of the petitioners were ‘believers’. Then the question will arise as to whether on the basis of a hearsay statement appeared in a News Paper the petitioners are entitled to rake up an issue as a PIL especially when the right conferred by Article 14, 15 and 25 of Part III of the Constitution of India are personal rights, as we can see from the expression ‘any person’ or ‘any citizen’ in all these Articles. The Petitioner’s in the Writ Petition never had a case that the affected persons (mainly women believers in Kerala) belong to socially and financially deprived class, incapable of approaching the Hon’ble Court in any manner as a reasonable ground to justify maintainability. In a 100% literate society where women are not treated as chattels but considered as head of the family who holds the chattels, where men are married and brought in to the family under the matriarchal system (Marumakkathayam system of succession), calling them weaklings is rather an insult because they are the most upright women capable of questioning any illegality through the due process of law. Instead of leaving it to their discretion a busybody taking up the issue of ‘gender equality’ ought to have been thrown out at the threshold. It is for the persons who were affected by any religious practice, to come before the court and establish that his/her Fundamental Right stands violated. Mandate against the State in Article 25 does not confer power on any State to use the said Article to perpetrate anarchy in the guise of implementation of Part II of the Constitution. Duty of the State is to educate and enlighten the citizens as stated in para 66 in the dissenting judgment passed now (herein after shall be referred to as ‘reference order’).

B.‘Sati’ and ‘untouchability’ were crimes and eradicated by bringing in special legislations and not through tangent constitutional interpretations. Article 14 is all pervasive in the entire Constitution as stated earlier. There are some exceptions which may not be reflecting the spirit of Article 14 on the face of it because firstly none of these Fundamental rights are absolute and secondly in a country like India catering the expectations of thousands of different religious beliefs is not an easy job. That is why a general safe guard in Article 25 and 26 is provided as “subject to public order, public morality and public health”. Article 14 has it’s own limitations especially when it is not an absolute but abstract proposition.By adding the word “constitutional’ to the word ‘morality’ in Article 25 where by converting ‘Public morality’ into ‘constitutional morality’ has rather watered down the very intention in bringing in Article 25 into the Constitution. In that the farmers could have avoided the inclusion of the words ‘“subject to public order, public morality and public health” in Article 25. Hon’ble Supreme Court repeatedly held that it is for the State to fill up the lacuna in a legislation and the court shall not venture to travel into those slippery terrains. A mild bending may be permissible but not in a case where it affects a large section in the society and especially when it requires addition of words. Drastic deviation to convert‘exclusion of menstruating women from temple entry’ into an offence, especially when that interpretation is not evident on a simple reading of the constitutional provision inArticle 17 and that also by adding words which were not intended to be included by it’s framers in the Protection of Civil Rights Act 1955, has literally mutilated the Constitution. While interpreting a word ‘untouchability’ it is necessary to contain the historic background under which it found place in the Constitution. The definitions found in th dictionaries in circulation all over the world understood it as follows:

a.  Oxford : (adj) That may not or cannot be touched; (n) a member of a hereditary Hindu group held to defile members of higher castes on contact

b.  Webster: Hindu below the caste level.

‘Untouchability’ as a crime cannot be presumed because it is not defined through any legislation as required under Article 17. It is limited to those cases mentioned in Protection of Civil Rights Act 1955. Even in Civil Rights Act 1955 it is defined as such but is an offence intended by the legislature in the Act is discernible from the provisions. The present interpretation can probably lead to bizarre situation. Eg., if it is presumed that a ‘menstruating womon’ is prevented from having intimate and physical relationship during her menstruation cycle, husband can be charged for an offence of practising ‘untouchability’. It is so because the definition of “place” under Section 2(b) of Protection of Civil Rights Act 1955 includes a ‘house’. Husband’s denial amounts to practice of inciting ‘untouchability’ and can be punished under the Act. In a Hindu Temple, (except in Sabarimala) a muslim, Christian or members from other religion are not permitted to enter. In that case, the said action also is an offence of untouchability. A definition of an offence cannot arise out of a vague trance but it should be a definite declaration by the legislature as per the scheme of the Constitution. It is my humble understanding and suggestion, that stretching Article 17 of the Constitution to an extent beyond the comprehension of the framers of the Constitution (as that could be understood from the Constituent Assembly Debates during the framing of the Constitution) and also from the object and reasons under Protection of Civil Rights Act 1955,may not be helpful to bring in peace and prosperity in the society, which is the ultimate mandate of rule of law. Apprehension expressed by Professor K.T.Shah during Constituent Assembly Debates on framing the Constitution assumes importance at this juncture, which reads as follows:

“ .....Lack of any definition of the term ‘untouchability’ makes it open for busy bodies and lawyers to make capital out of a clause like this, which I am sure was not the intention of the Drafting Committee to make.”

Exactly the same situation is created by a group of activists in the present case.

C. Consequence of not staying a judgment which is only declaratory with no mandamus and executable direction :

While considering the impact of the present order referring the matter to the larger bench, it is trite to mention that there was no stay order passed in the matter, at the time of issuing notice but of course clarified at a later stage that there is no stay of the impugned order. However a stand taken by the court at the ad-interim stage has changed, as soon as the Hon’ble Court decided to reconsider the findings and conclusions arrived at in the main judgment in the Writ petition. As already stated, it is for the affected citizen to complaint to the executive and if they fail, the citizen is entitled to approach the court alleging that the 2nd limb of the Constitution is limping instead of implementing their valuable right under Part III of the Constitution. Such a situation did not arise in the present case so far. Only the over enthusiasm of the party in power in Kerala to push their ideology in the guise of implementation of a declaratory order, resulted in anarchy and breach of peace in the society. The moot question is as to what exactly is the mandate of the Majority Judgment of the Constitution Bench at the first instance, which is now stands referred to a larger bench. Was it necessary for the State to jump into action so as to protect all those who come forward to prove a point that they won the battle against the presumed/projected ‘gender discrimination’ ? Or to be more compassionate to the citizens of the State so as to protect them from possible anarchy that may ensue, on taking hasty steps to implement their ideology under a judgment in which there was no mandatory injunction but contained only a declaration of law, that ‘menstruating women’ can climb the 18 steps at the ‘Sabarimala Temple’. Under the changed circumstances the State has taken a wise decision to wait till the Hon’ble Supreme Court churn the muddy water and brings out a ‘crystal clear verdict’ after investigating everything including the legislative intention of the framers of the Constitution in bringing in Article 14,15,17 and 25 of the Constitution.

D.  Legal Impact of reference to Larger Bench:

Hon’ble Supreme Court in the case of Mohinder Kumar v. State of Haryana reported in (2000 (3) KLT OnLine 1017 (SC) = (2001) 10 SCC 605held, that when a dictum in a judgment stands referred to a larger bench, the courts in India cannot apply that as a law in future cases, unless and until the larger bench comes out with a clarification on the legal position. In the present case the 5 Judge Constitution Bench judgment which made a declaration of law, is now in a stage of suspended animation in view of the later judgment, which doubted it’s correctness. Things would have been different, provided it is a judgment in-personam where a party to the lis was given a personal decree capable of being executed. In that case, unless the decree is stayed the judgment shall be capable of being executed. On the other hand in the present case it is a judgment amounting to declaration of law alone and there is no direction which requires execution. In that case the whole issue will have to be understood in a totally different perspective.

E. Article 25(2)(b) reads as follows:

25. Freedom of conscience and free profession, practice and propagation of religion

(1)Subject to public order, morality and health and to the other provisions of this part all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any existing lawor prevent the State from making any law.

(a)regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I - The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion

Explanation II - In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

The Article is not applicable to a public place of worship of Muslims, Christian or any other person belonging to a religion other than Hinduism. From the simple reading of the said Article 25(2)(b) it is clear that the State can throw open only a “ Hindu Religious Institution of a public character’. Look at the paragraph 8 of the reference order which reads as follows:

“8. While deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.”

The above observation assumes importance because this issue was raised in the review petitions with a specific reason because the ‘Sabarimala Dharma Shastha Temple’ unlike other Hindu Ayyappa Temples will not fall under the term ‘Hindu Religious Institution’ because in Sabarimala not only Hindus but believers of all religions conduct the prayer with impunity. Therefore Hindus alone are not affected but it can also be Muslim or Christian. The 1965 Act cannot apply to any temple in which believers of other religion can enter as a matter of right. The story of the origin of the Temple and the importance of ‘Vavar’ who is considered as a deity in ‘Sabarimala’ itself shall provide sufficient insight on this aspect. Therefore a temple which is thrown open to the believers of all religions cannot in strict sense can be termed as a ‘Hindu Temple’. If that be so, the ‘Sabarimala Temple’ may not be covered by Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. Hence striking down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 has no consequence. Since this question is also to be decided by the 7 Judges among various other issues including the extended meaning of ‘untouchability’ under Article 17 the ‘legal dictum’ of the previous judgment is in suspended animation. Whether framers of the Constitution visualised a concept of ‘Untouchability’ between ‘menstruating and non-menstruating women’ is also a moot question, especially when it is an issue outside the purview of gender discrimination. Consequence is that if a person seek a mandate from the Court, the 5 Judge Bench decision headed by Justice Deepak Mishra in the Writ Petition cannot be relied upon by any court in India, even if there is no stay since the said judgment is only a ‘declaration of Law’ especially when there is no personal decree which required to be stayed. The State need not worry about any possible contempt action because there is no mandamus against them. If a Muslim insist that he is entitled to enter a Hindu Temple but prevented by Hindus, no court will possibly be issuing a mandatory injunction directing the Temple Authorities to admit the Muslim citizen. It can never be considered as ‘Untouchability. It is a question of mutual respect for each religion and also within the religion which ultimately aimed at as an outcome in the practice of all religions so as to ensure the peace and tranquillity. Any person questioning the authority of the deity to remain celibate or to enable the follower to practice celibacy as the wish of the deity cannot be considered as a ‘believer’ of that particular deity. The person questioning everything and looking for reasoning is a ‘Gyana Yogi’ who need not believe in idol worship or any type of worship for that matter but an idol worshiper is practising ‘Bhakthi Yoga’, who shall never question the authority of the deity but simply surrenders himself to the wishes of his deity. This alone is required to identified a believer and non- believer. The conflict between the two is not new but it relates back to Vedic era.

Even though there are some directions in the minority judgment in the present order, but it also is worded with great caution in paragraph 66 which reads as follows :

“66. The State of Kerala is directed to give wide publicity to this judgment through the medium of television, newspapers, etc. The Government should take steps to secure the confidence of the community in order to ensure the fulfilment of constitutional values. The State Government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the Court meet the genuine concerns of all segments of the community. Organised acts of resistance to thwart the implementation of this judgment must be put down firmly. Yet in devising modalities for compliance,a solution which provides lasting peace, while at the same time reaffirming human dignity as a fundamental constitutional value, should be adopted. Consistent with the duties inhering in it, we expect the State Government to ensure that the rule of law is preserved. All petitions are disposed of accordingly ”

If the State takes any step to ‘provide lasting peace’, that will definitely be appreciated by the Hon’ble Court but not a step to implement those declarations that are referred to larger bench as stated in the reference order, because it can hurt the feelings of thousands of believers who are rightly or wrongly fighting for their cause. It appears that there is no scope to entertain any doubt in a situation like this. Individual action may be considered by the High Courts or any other courts in light of the legal position contained in Mohinder Kumar v. State of Kerala reported in (2000 (3) KLT OnLine 1017 (SC) = (2001) 10 SCC 605)since the ratio of the decision in the order referred to 7 Judges Bench is in suspended animation.

A Beloved Judge Retires

(By K.Ramakumar, Sr. Advocate, High Court of Kerala)

A gentleman par excellence, full of compassion and kindness, committed to his job and an embodiment of courtesy and respect to the members of the Bar. This in sum is what Sri.Justice A.M.Babu. Simple and unostentatious Sri.Justice A.M.Babu never attempted to make his presence felt either in Court or outside or thrust himself upon others. Outside the Court, particularly in social functions, he freely mixed with others, always wore simple dress in the traditional style totally avoiding slavish western dress which he did not need at all to be marked out in a crowd. His amiable manners had earned him high regard not only from the practitioners appearing before him, but Brother and Sister Judges and the members of the Registry. Significantly in a private function thrown by him, practitioners from stations where he had worked earlier had thronged to it showing how much they valued him and evidencing his immense popularity in places where he had worked in the past. All the same, he is strong and sturdy in applying legal principles and had an uncanny knack to come to the crux of the case and take clear and firm legalistic view without hurting the counsel appearing on either side. This is indeed a remarkable quality likely to be remembered by practitioners even after Sri.Justice A.M.Babu lays down his office with dignity, honour, and respect. His affable manners remind practitioners of former Judges like Sri.K.V.Sankara Narayanan, Sri. Babu Mathew and late Sri.S.K.Khader and Sri.Justice Manoharan, to name only a few. It is not overbearing or audacious attitude that wins the heart of the practitioners but treating them as partners in the noble cause of administration of justice, which unfortunately in a country of multitudinous marginalized, is still inaccessible to many. Sri.Justice A.M.Babu realized this and did all that he could to ameliorate to some extent the grievances of common-litigant public. At all events, he was basically a common-man’s judge.

Legal practitioners of the Kerala High Court will continue to remember him and keep a warm corner in their hearts in respectful gratitude to Sri.Justice A.M.Babu.

Some Different Thoughts on Adverse Possession

(By K.G.Balasubramanian, Advocate, High Court of Kerala)

2019 (3) KLT 865 (SC) - Ravinder Kaur Grewal v. Manjit Kaurraises a cardinal issue on the powers of the Apex Court to lay down the law. 

I am limiting these lines to paragraph 60 of that judgement wherein their Lordships have laid down that “When we consider the law of adverse possession as has developed vis-a-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirablethat rights should not accrue.The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause,it is made clearin the statute of limitation that no rights can accrue by adverse possession”.

If the above statements amount to declaration of law as we normally understand, please read on. Or, are the statements only advisory in nature? In “RavinderKaur Grewal vs. Manjit Kaur”, their lordships have considered the principle and scope of adverse possession in extenso. In the process, few precedents have been upset. Those situations convince me that the statements in paragraph 60 of amount to a declaration of law, despite the principle of per incuriam(infra).

The Constitution presupposes that the legislature, executive and judiciary will not overstep their respective jurisdictions. Many times, the doctrine of separation of powers is overlooked because “the terminator” line between them is hazy. I feel that the Constitution and others laws of the nation are reliquaries of many anachronistic concepts, making rule of law a shibboleth in the hands of a fractious society. We come across hundreds of occasions where courts have stepped in because the existing provisions are either insufficient or are not properly enforced. (I am reserving my opinion on the direction for payment of compensation for demolition of flats at Maradu, as it appears not to be fully in tune with “public trust” and “polluter pays” principles).

In a given case, the Constitutional Court can declare that certain statutory provision or some action by State or its organs is ultra vires, void and strike down or quash same. In some other situations, courts apply the principle of “reading down”.

Keeping that in mind, I would attempt to analyse “Ravinder Kaur Grewal”. As far as I could notice, the facts of case, as reported, do not reveal consideration of rights over public property. The judgement does not show that any of the litigants was a local authority or State.

It is well accepted that “a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.”

The Limitation Act, 1963: Section 27-Extinguishment of right to property:At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. “Hereby” is, doubtless, with reference to various articles in the Schedule.

Articles 64, 65, 111 and 112 The Limitation Act:

It can be seen that Articles 111 and 112 do not contemplate adverse possession, but only possession, dispossession or discontinuance of possession as regards immovable property. Article 65 Limitation Act provides that time commences to run “When the possession of the defendant becomes adverse to the plaintiff”. The article obviously contemplates a suit by the title holder and defence of adverse possession by the defendant and not vice versa.

In other situations under analysis, commencement of running of time is from the date of dispossession or discontinuance of possession and not date of budding of adverse animus. Contradistinguished from Article 65, Articles 111 and 112 do not demand that possession should be adverse. In a suit governed by Article 65, hostile animus is essential over the entire period of 12 relevant years. But, in a suit covered by Articles 111 or 112, is not mere possession by a defendant of any public street or road or any part thereof or property of Government sufficient for the requisite period to extinguish title? In such cases, does a defendant have to plead and prove hostile nature of possession?

Ramiah v. N. Narayana Reddy(2004 (2) KLT OnLine 1219 (SC) = 2004) 7 SCC 541: AIR 2004 SC 4261 declares that: “Article 64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs’ title in which there is no allegation of prior possession and subsequent dispossession alone can fall within article 65. The question whether the article of limitation applicable to a particular suit is article 64 or article 65 has to be decided by reference to pleadings”.

This gains importance when we apply the principle that where two or more articles may govern a suit, the litigant should be given the benefit of the more beneficial article in order to sustain his suit. Article 65 applies to public property other than public street or road or any part thereof; a person in possession of other public property can take shelter thereunder. Once Article 65 operates in favour of a person in possession of public property not coming under Article 111, Section 27 assumes the lead and says that the owner’s right to such property shall be extinguished. Despite exhaustive amendments to Limitation Act, the Parliament did not feel it necessary to provide a common time limit or character for acquisition of title by a trespasser to public property by adverse possession and limitation. It did not amalgamate Articles 65, 111 and 112 as regards different kinds of public property and as regards nature of possession with or without hostile animus. We have some other enactments which specifically provide that some rights cannot accrue in any situation.

In Navarattanmal & Ors. v. State of Rajasthan (AIR 1961 SC 1704), a bench of 5 judges
was dealing with a challenge to the vires of Article 149 (now Article 112) Limitation Act. Their lordships turned down the challenge that Article 149 violated Article 14 of the Constitution, while answering the question whether there is a rational basis for treating the Government differently as regards the period within which claims might be put in suit between the Government on the one hand and private individuals on the other. The offshoot of the said decision is that a plea of limitation can be successfully urged against the government and public property in a given case.

In State of Kerala v. Varghese & Ors (1987 (1) KLT 62 (SC) = (1986) 4 SCC 746), the Apex Court reiterated the time honoured principle that “It is not for the court to reframe the legislation for the very good reason that the powers to ‘legislate’ have not been conferred on the court”.

As regards Article 142(1) of the Constitution, a bench of 5 judges held in Supreme Court Bar Association v. Union of India(1998 (1) KLT SN 84 (C.No.85) SC = (1998) 4 SCC 409)
that “It, however, needs to be remembered that the powers conferred on the court by Art. 142
being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the court.Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly”.

Jayant Verma & Ors. v. Union of India(2018 (1) KLT OnLine 3038 (SC)= (2018) 4 SCC 743):
declares that:Thus, “per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. --------------- Also, the ratio decidendi of a judgment is the principle of law adopted having regard to the line of reasoning of the Judge which alone binds in future cases. Such principle can only be laid down after a discussion of the relevant provisions and the case law on the subject. If only one side is heard and a judgment is reversed, without any line of reasoning, and certain conclusions alone are arrived at, without any reference to any case law, it would be difficult to hold that such a judgment would be binding upon us and that we would have to follow it ------------”.

Were not Articles 111, 112, “Navarattanmal” and “Supreme Court Bar Association” brought to the notice of their lordships in “Ravinder Kaur Grewal v. Manjit Kaur”? Articles 111 and 112 being the law of the land, the Apex Court could not, should not and ought not to have disturbed the law.Prima facie,the question whether it could be so done in respect of public property did not arise for consideration in ‘Ravinder Kaur Grewal’’. Paragraph 60 thereof is against the principle that a Court cannot legislate, that too against a statutory provision. It declares the law on a point that is not seen (?) canvassed. It militates against the concept that law of limitation is a “statute of repose” whereby the true owner cannot riposte.  In that sense of the matter, paragraph 60 of “Ravinder Kaur Grewal vs. Manjit Kaur” is not good law. “Ravinder Kaur Grewal vs. Manjit Kaur” creates an anomalous situation rendering Articles 65, 111 and 112 non est.

https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/2016/when-the-judge-is-wrong/:There is no such thing as the judge being wrong. This proclamation was uttered to me by—you guessed it—a judge. It’s a judge’s job to be right, and ultimately they wear the robes, not you. However, every litigator will eventually encounter a jurist who is undeniably flat-out wrong on an issue. Whether the error is a ruling on an objection or a misapplication of the law, this scenario can leave both judge and litigator in a pickle.

Pursuit -- 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.

Among the Most Advanced Dispute Resolution Methods

Adopted Nations in the World,India must Stand in the Forefront

with the Most Advanced and Effective Dispute Resolution Methods

(By P.R. Shaji, Advocate, High Court of Kerala)

Access to justice, in its widest sense of effective resolution of disputes, whether through court based litigation or alternative dispute resolution process, is an essential aspect of ensuring the realisation of the fundamental rights recognized and given protection, by Article 39A of the Constitution of India. Establishment of the most advanced dispute resolution system, which enshrined in Article 21 (right to life includes right to life without personal troubles), which state is obliged to the people of India under Article 39A of the Constitution of India. Article 21 can be honoured by implementing the constitutional right of access to justice. Right to life includes right to live with dignity, with peace of mind by getting facility to redressel of the grievances easily and swiftly. Access to justice includes right to select the judge or forum for adjudication, except in criminal matters and public interest involved issues like taxes, matters relating to revenue etc.

To promoting the motto access to justice, a modern justice system should offer a variety of approaches and options to dispute resolution. Citizen should be empowered to find a satisfactory solution to their problem. Which include the option for selection of court or forum of dispute resolution as part among wider menu of choices.

ADR complements the role of the court in resolving the disputes, swift in speed, economic in economy, final in finality.

Let there be a parting out, from adversarial system of law practitioners to, both adversarial system of law practitioners and democratic system of law practitioners; and commanding resolution method to obligation resolution method.

Inroads among many are:

Nobody to supervise and instruct the implementation of ADR provisions in tribunals like NCLT, labour dispute tribunals, industrial disputes tribunals etc.’

Instead of, and in addition to, the current decision making method, decision of court must be, on the basis of the decision on the impasse points, which framed with the consent of the parties, for referral to the decision of the Court, during the course of mediation talk, and on the basis of such decisions mediation settlement should be signed by the parties which shall be final and no appeal thereafter.

There must be some provisions in the statute to insist at the instance of parties to the mediation or at the request of the mediator, court may issue directions to persons including public officials to be present and participate in the mediation proceeding and disobedience to the direction issued by the court in this regard will have to be treated as contemptuous.

In new amendment of Arbitration and Conciliation Act, High Court will be grantor of approval to the ADR institutions but there must be somebody just like Bar Council to lawyers, to test the competency and ability of the professional like mediators, conciliators, arbitrators, negotiators etc., and to give continuing professional education for which there must be some mechanism to achieve that goal, to prevent, reduce and resolve disputes, by conducting, coordinating, regulating, catalyzing and promoting ADR methods.

Untrained arbitrators and untrained reference jurisdiction handling judges and arbitration appellate jurisdiction of High Court will dilute the very purpose of the statute itself by delaying the process.

Government is one of the parties in majority of cases. There must be provision to settlement of government involved cases through mediation or any other ADR process for speedy disposal.

Criminal cases can be settled either way or parties can collect the documents which they are entitled to receive as a matter of right if not settled by collecting reports or information which authorities were alleged to be hesitating to provide.

In arbitration, recording evidence in support of the court of law is again to retain the elements for delay, and dependency of the court.

If any one of the party has expressed interest in settling the matter through mediation and one of the party is not, there must be a provision to prevent the other party from wriggling out from mediation without harming his interest. There must be provision for protecting the interest of any other persons whose interest will not protect by delaying tactics of the parties to the mediation.

There must some legislation for Accreditation and training of mediators, regulations for conduct of mediations, by various non-statutory and statutory bodies and individuals for assuring the quality of mediators and for regulating the code of conduct for mediators, arbitrators and Conciliators.

Reservation system of Indian public service has led to a situation of compromising of quality of services. In the case of treatment of diseases one can select the best doctor for him to consult or for obtaining best medical service or in alternate, in the absence of his choice of medical practitioner in the public service, he can resort the service of an expert from the private service, both are graduated or qualified either from the government medical college or from the private medical colleges; in that way one can opt the doctor on the basis of institutions from which he graduated or institutions in which he is working. This facility rather opportunity must be there in dispensation of justice also. As there is no role to the public in election of judges of the court of law (as in the western country) in India, but government can provide this facility rather opportunity through ADR till this facility is there in Court of law.

Right to information includes right to know about the institutions and person which/ who, are qualified to give services of the different disciplines of ADR in the nation. For judiciary there is judicial academy to train judicial officials. Who will take the authority of imparting training in Arbitration, mediation, conciliation, negotiation, Lok adalat, judicial settlement etc. in the absence of specific legislation to that effect, especially by defining these processes individually, describing its procedures deferentially, uniquely and codifiedly both in the case of definition and procedure.