A Bit More -- On the Lawyer Robes

(By V.B. Premachandran, Advocate, High Court of Kerala)

(With reference to Journal Pages of 2019 (2) KLT 54 & 2019 (3) KLT 43) 

Million Dollar question-

To be or not be

Whether to wear or banish -

the black robes ?

Answers - Beloved members of our

legal fraternity, differently

Fear not the ‘Nipah Virus - bat’ looks-

- of the black robes

Prevails, the fragrance of the

Rose over its thorns

Prevails, the charm of the

robes over its heat and dust

Colonial legacy - perhaps-

harmlessly - nostalgic

Heaven’s sake - with, within

Without and notwithstanding-

Let, platonic love towards

the Black Beauty continue

Let, hue and cry on robes

Vanish in the thin air

Dignity and decorum, wear we

the black robes

Pride and grace adore we

the black robes

Let not the robes be robbed

Long live the robes

Long live the Lawyer

Long live the Law !

  Aftermath of A Per-incuriam Judgment

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

“ Literal translation of Per-incuriam, means ‘through lack of care’, refers to a judgment of a Court which has been decided without reference to a statutory provision or earlier judgment which vitiates the judgment.

1. C.C.K.Alien in ‘Law in the Making’ (Page No.246) analysed the concept of ‘per incuriam’. According to him, ‘Incuria’ means literally ‘carelessness’ which apparently is considered less uncomplimentary than ignorantia; but in practice ‘per incuriam’ applies to mean ‘per ignorantiam’. It would almost seem that ‘ignorantia juris neminem excusat’ - except a Court of law, ignorance of what? Ignorance of a statute, or of a rule having statutory effect which would have affected the decision if the court had been aware of it.

In Young v. Bristol Aeroplane Company Limited(1994) All ER 293, the House of Lords observed that ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by the Supreme Court of India while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

In Halsbury’s Laws of England (4th Edn.) Vol.26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:

“A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.

In Huddersfield Police Authority v. Watson,1947 KB 842 : (1947) 2 All ER 193 it was held that when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force it shall be ignored.

Lord Godard, C.J. in Huddersfield Police Authority v. Watson(1947) 2 All ER 193 observed that where a case or statute had not been brought to the court’s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

The Court of Appeal in Morelle Ltd v. Wakeling [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per incuriamare those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases 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.

In Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All. ER 193 it was observed that: “Where a case or statute had not been brought to the court’s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.”

Sir John Salmond in his ‘Treatise on Jurisprudence’ has aptly stated the circumstances under which a precedent can be treated as ‘per incuriam’. It is stated that a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute or delegated legislation.

Hon’ble Supreme Court in Government of A.P. & Anr. v. B.Satyanarayana Rao (dead) by LRs. & Ors.(2000 (3) KLT OnLine 1013 (SC) = (2000) 4 SCC 262) observed as under:

“The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.”

The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent by a lower court. Ordinarily, in the common law, the ratio ofa judgment must be followed thereafter by lower courts while hearing similar cases. A lower court is free, however, to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam. Also, the said doctrine is an exception to Article 141 of the Constitution of India which embodies the doctrine of precedents as a matter of law. However, despite the law being loud and clear, mostly High Courts will tray to avoid a decision declaring the judgment of the Supreme Court as per incuriam.

The rule applies even though the earlier court aware of the statutes in question but it did not refer to and had not present to its mind, the precise terms of the statute (as in the case under discussion). Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand, such a mistake is again such ‘incuria’ has to vitiate the decision.Whether a lower court can impugn a precedent on such grounds? Judgment is a precedent for the court’s below normally and it never binds the Supreme Court. The question whether the Statute should prevail or a judgment retendered in ignorance of the Statute should prevail ? Only thing is that Supreme Court or High Court has to follow certain conventions to correct it’s own declaration of law under Article 141. The High Court has every right to ignore a previous judgment if it is convinced that it was rendered per incuriam. There is no violation of judicial discipline if a judgment rendered sub-silentio due to carelessness has been ignored.

2. Supreme Court is flooded with per-incuriam judgments:

There are ever so many judgments written per-incuriam both by the Hon’ble Supreme Court as well as all the High Courts in India because due to the pressure of work, some mistakes are bound to creep in. Supreme Court again and again re-writes its precedents by referring the matters to larger benches one after another. Classic example is the issue regarding legislative competence of the State Government to impose tax on minerals after the declaration under Section 2 of the Mines and Minerals Development and Regulation Act 1959. After so many conflicting judgments, in India Cements v. State of Tamil Nadu,
7 Judges of the Supreme Court reported in ((1990) 2 SCC 12) held that ‘Cess’ on Royalty imposed by State Government shall enhance the Royalty and hence unconstitutional because, under Section 9 of the 1958 Act only the Union Government can enhance the Rates of Royalty. The enactment made by the State was held to be beyond legislative competence. Later on in Kesoram’scase reported in ((2004) 10 SCC 201) a 5 Judges Constitution Bench headed by Justice Lahoti held that 7 Judges Bench judgment was the outcome of a typographical error but of course Justice Sinha dissented by stating that a 5 Judge Bench cannot read down a 7 Judges bench judgment. In Paragraph 71. Hon’ble Supreme Court in its majority judgment in Kesoram(supra)held as follows:

“71.  We have clearly pointed out the said error, as we are fully convinced in that regard and feel ourselves obliged constitutionally, legally and morally to do so, lest the said error should cause any further harm to the trend of jurisprudential thought centering around the meaning of ‘royalty’. We hold that royalty is not tax. Royalty is paid to the owner of land who may be a private person and may not necessarily be State. A private person owning the land is entitled to charge royalty but not tax. The lessor receives royalty as his income and for the lessee the royalty paid is an expenditure incurred. Royalty cannot be tax. We declare that even in India Cement it was not the finding of the Court that royalty  is  a  tax.  A  statement caused by an  apparent typographical or inadvertent errorin a judgment of the Court should not be misunderstood as declaration of such law by the Court. We also record, our express dissent with that part of the judgment in Mahalaxmi Fabric Mills Ltd. and Ors. which says (vide para 12 of  SCC report) that there was no ‘typographical error’ in India Cement and that the said conclusion that royalty is a tax logically flew from the earlier paragraphs of the judgment. “

It is trite to mention that the State of Tamil Nadu in India Cements(supra) was  represented by none other than Shri T.S.Krishnamoorthy Iyyer, doyen of Kerala High Court but his submissions did not impress the court at that time. However the argument of Shri.F.S.Nariman, who appeared on behalf of the India Cements happened to be more convincing, but that led the 7 judges of the Hon’ble Supreme Court to write a judgment without conceiving the difference between a ‘prerogative right’ and a ‘proprietary right’. Most importantly Section 17-A of the MMRD Act 1959 is not even referred to anywhere in the judgment. Section 17A(3) of the MMRD Act 1959, provides that if the State requires Minerals belonging to a private person, the State will have to pay Royalty to the private person like any other lessee. Private Citizen cannot demand ‘prerogative right’ to impose tax; means ‘Royalty’ under the MMRD Act is not a ‘prerogative right’ but a ‘proprietary right’. Therefore ‘cess’ on Royalty being a ‘prerogative impost’ cannot enhance the ‘Royalty’ which is a ‘proprietary right’. The upshot of the finding in India Cement that due to the impost of cess on Royalty, ‘Royalty’ got enhanced is absolutely wrong and bound to be considered as per incuriam since delivered in ignorance of Section 17-A of the MMRD Act.

In 2011, again another 3 judges Bench headed by Chief Justice Kapadia in ‘Mineral Area Development Authority v. Steel Authority of India’ reported in ((2011) 4 SCC 450) again referred the issue to 9 Judge bench so as to iron out the creases. Most disappointing fact is that the court referred the matter to 9 Judge Bench, an unnecessary issue also was referred and it reads as follows:

“Whether Royalty is a tax’

Section 17A (3) of the MMRD Act specifically provides, that if the State or Central Government needs minerals belonging to a private person, State or the Central Government shall pay Royalty to the said private person. Private person cannot exercise prerogative right to impose tax. Therefore Royalty can only be a ‘proprietary right’ and never be a ‘prerogative right’ ‘. Section 17A is not under challenge in any of these proceedings. Consequence is that the reference of the matter to 9 judge bench on the ‘point’ happened to be passed
sub-silentio qua Section 17-A of MMRD Act 1957. Therefore both India Cements v. State of Tamil Nadu, 7 Judges of the Supreme Court reported in (1990) 2 SCC 12) as well as ‘Mineral Area Development Authority v. Steel Authority of India’reported in (2011) 4 SCC 450) referring the matter to 9 Judges will have to be considered as per incuriam and there was no necessity to refer the matter to the Constitution Bench of 9 judges on a point, as to ‘whether Royalty is Tax’.

In Thressiamma Jacob’scase reported in 2013 (3) KLT 275 larger bench of Justice R.M.Lodha, Justice Chalameshwar and Justice Madan B.Lokur held that owners of quarries in Malabar District in Kerala are owners of the minerals. However the question whether the Royalty can be collected by the State was left open to be decided until the controversy referred to 9 judge bench in (2011) 4 SCC 450) is finally resolved. In fact a per incuriam order ((2011) 4 SCC 450) is delaying dispensation of justice and valuable time of 9 Judges of the Hon’ble Supreme Court will be wasted on a point directly covered by the Statutory provision namely Section 17-A of the MMRD Act 1959.

3.   LATEST DEVELOPMENTS:

I.   Justice G.S.Patel in a recent Judgment held:                                          

“I believe it is primarily my responsibility to rectify it’

Justice G.S.Patel  rectified  his ‘Per  Incuriam’ order by a Suo Motu Review.

II. Justice A.M.Khanwilkar and Justice Ajay Rastogi, in a recent Judgment  in Civil Appeal No(s.)5140  of 2019, Sunil Vasudeva & Ors. Sundar Gupta & Ors. (2019 (3) KLT OnLine 3008 (SC)observed as follows:

“ 26. That apart, Section 293 of the Income Tax Act, 1961 put a complete bar of filing suit in any civil court against the revenue/income tax authority and the  mandate  of law remain unnoticed when the order came to be passed by the Single Judge of the High Court in Writ Petition No.18500(W) of 1985 decided on 26th October, 1990 while relegatingthe parties to address in the alleged pending Civil Suit No. 471 of 1985 before the District Judge   at   Delhi although  it  was  dismissed  much  prior  to  the pronouncement of the Judgment dated 26   October, 1990. Even in the L.P.A, the Division Bench of the High Court granted liberty to  the  respondents  to file  a fresh  civil suit  in  respect  of the subject property in Delhi and either party has not brought to the notice of the  Court the  mandate  of law  as  envisaged under Section  293  of  the  Income  Tax  Act, 1961  that  the  civil  suit  against the Income tax Depart-ment is not maintainable under the law,  which appears  to  be  mistakenly  omitted by  the  Court in arriving at the rival claims of the parties. “

31. In the given facts and circumstances, we are not inclined to dilate the issues on merits raised in the Writ Petition No.18500(w) of 1985 filed at the instance of the respondents before the High Court of Calcutta, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and this was the purported defence of the respondents and of the Income Tax Department and consequential effect to the Order dated 8th September, 1965 of which a reference has been made by us, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits.In our considered view, there appears no error being committed by the High Court in passing the impugned judgment dated 24th September, 2014 in exercise of its review jurisdiction and that needs no interference by this Court. “

Hon’ble Supreme Court in fact applied the principles

“If there is injustice there is always a remedy.’

4. Present discussion is as to how principles of res judicata can be dealt with in the case of a per-incuriam decision rendered earlier during the same proceedings:

a) These are judgments declaring that a per-incuriam judgment is not a precedent; means only as a guideline to do justice in future but the suffered litigant is still lurching in darkness, when the court who get a chance to correct it’s own mistake, when fails to do it.

b) In this article we are concerned with a celebrated judgment on last paragraph Section 60 of Transfer of Property Act, delivered sub-silentio in:

“State of Kerala v. Koliyot Estates reported in (1999 (3) KLT 553 (SC) = (1999) 8 SCC 419).”

Moot question is:

“Whether the carelessness of the lawyers who appeared or the judges who wrote the judgment can push a litigant to his peril under the principles of Res-judicata especially when the Court later on become convinced that the earlier judgment has been delivered per-incuriam (means ‘carelessness’ — ‘in ignorance’) and that also when the Court is getting the opportunity to correct the mistake, during the pendency of the same litigation’.

c) The above referred Supreme Court judgment led an agriculturist in Kerala to the brink of suicide. Once he owned several acres of agricultural property but devastated due to that judgment which reversed concurrent findings of Trial Court as well as the High Court of Kerala. Said judgment is not erased from the category of ‘PRECEDENT’ yet, may be because Hon’ble Supreme Court’s attention has not been drawn to its fallacy so far. That is one aspect of the matter but the discussion takes us to an altogether different ground reality.

d) Coming to the present controversy in hand, it is highly necessary to point out that there is no law or precedent in this country to wipe the tears of those who suffered due to the ignorance of law of someone else who was careless in discharging their duty, despite the fact that Indian law accepts the principle, ‘Ignorance of law is not an excuse’. Is that principle applies only to a litigant or it requires a special attention by the judges who’s attention has been drawn to the injustice that has been suffered by the litigant. In those cases the question is : Can the court subsequently when seized of the matter shall draw the rule of ‘res-judicata under Section 11 of C.P.C., especially when the court gets an opportunity to correct the flaw committed earlier may be by the Apex Court. Writing a judgement is an art. Without disturbing the tranquillity of judicial discipline, one can easily handle a judgment written in sub-silentio. Every judgment is written with good intention but it moves in to a slippery terrain when it is lacking its ulterior aim to provide justice to the needy.

e)   I am constrained to write this Article, because I witnessed the pain an elderly woman in her 90s, who had to knock once again at the doors of the same temple of justice which denied her justice due to the ignorance of those who belong to the highest echelons. She is still hoping that our justice system may evolve a mechanism in cases in which a litigant is crucified due to the mistake of those whom they believed to be the guardians of justice. Only fault of that poor old woman was that she took birth to a father who happened to be a victim of a fraud perpetrated by a nationalised Bank and the executive of the Government. Her father had taken a loan by mortgaging all his properties, from a nationalised bank under a coveted agricultural programme promoted by the Govt. of Kerala, prior to the enactment of much applauded agrarian reforms of Kerala namely Kerala Land Reforms Act, 1970 and Kerala Private Forests Vesting and Assignment Act, 1971. Government stood as the guarantor but the intention was to recover it with the draconian weapons of revenue recovery. Agrarian Reforms enactments were perfectly enacted promoting public interest by the Kerala Legislature, where in there are specific provisions to protect the interests of those who took loans to cultivate the land. However, the ‘executive’ played a dirty trick since that was a period when hypocrisy regarding ‘socialism’ was at its peak. “Even though Sections 88 to 93 of the Kerala Land Reforms Act, 1970 as well as Section 3
of the Kerala Private Forests Vesting and Assignment Act, 1971 provided for splitting up of security and the wiping off the mortgage debt proportionately, executive jargons in connivance with the Bank, paid off the Bank ‘in full’, despite the fact that major portion of the debt had already extinguished. Most importantly the Government paid the Bank, clandestinely, without informing the mortgagor about the payment, whereby violated his fundamental right under Article 14 of the Constitution. The person who took the loan was burdened with the entire debt and the land developed by using the loan amount was taken away by the Government, pushing the borrower in to the debt trap. He had finally died in agony, believing that it was his fate to be a victim of a failed judicial system in which once he had tremendous faith. Now it is the turn of his daughter who also reached the age of 90, still expecting while sitting in her arm chair that the lady of justice having the cloth tied around her eyes may regain her inner vision during her life time.

f) Earlier during the Land Board proceedings, the advocates appearing for the Bank failed to appear and the claim of the Bank to retain the character and integrity of the mortgage stood rejected. The observation of the Land Board reads as follows:

“.....The Land Board cannot accept such vague claims, all the more in view of absence of the Advocates for the Bank and the Agricultural Refinance Corporation at the final hearing where they had an opportunity to elaborate their points further. Their objections over-ruled. “

g) However the same bank was complimented by our corrupt system by paying them in full, even though the benevolent legislations provides that both the mortgagor and the mortgagee shall shoulder the brunt of a welfare legislation in equal terms.

h) Armed with the weapon of ‘revenue recovery’, when the State barged into grab the properties of the Mortgagor, the poor citizen knocked at the doors of the temple of justice for the first time, and the High Court stayed the revenue recovery temporarily, and reckoned the mortgagor to approach the civil court. Accordingly, a suit for redemption was filed to redeem that portion of the mortgage which survived the vesting process.

i) In the suit, trial court correctly discussed the provisions of both the Agrarian Reform enactments and held that major part of the debt had already got extinguished and that the plaintiff needed to redeem only the part of the mortgage in existence and also to pay only the proportionate amount after deducting the mortgage debt proportionate to the area vested. This was appreciated by the High Court as well. In the Trial Court judgment, the Court held that after the vesting, the rights of both that of the Mortgagor as well as the mortgagee, already extinguished with respect to that portion of the land vested..

j) The Hon’ble High Court also concurred with the said judgment of the Trial Court and dismissed the appeal of the State.

k) However, when the matter reached at the Hon’ble Supreme Court as the Civil Appeal filed by the State, instead of discussing the law governing the vesting process under the relevant provisions of the vesting Acts, judgment delivered in per-incuriam discussed a point which was not involved in the case. Judgment directed the redemption of both the portions of the mortgage that was in existence as well as the part already got extinguished during vesting process. In a case where there is no scope for partial redemption because of extinguishment of part of the mortgage, detailed discussion on last para of Section 60 was made and the judgment in it’s tangent conclusion clarified the non-applicability of last para of Section 60, which has got nothing to do with the issue in hand. However the factual finding of two courts below remained intact and they were not touched or reversed. Thereafter, sufficient damage was done by adding one sentence, i.e., ‘therefore the plaintiff is not entitled for pro-tantoreduction of mortgage debt’ since it is not a case of ‘partial redemption’. However the judgment was very particular to declare that the mortgagor is not entitled to get what he is legally entitled to i.e., pro-tantoreduction of mortgage money. This has happened in a case where major share of the property belonging to the mortgagor was lost during the vesting process. Fallacy of the philosophy tried to be propounded in the Judgment is evident in one of the paragraph which reads as follows:

“The principle behind the exception to the prohibition clause in the last paragraph of Section 60 of the T.P. Act is, if the mortgagee is satisfied of a part of the mortgage debt by becoming the owner of a part of the mortgage property it is only equitable to allow the mortgagor to get pro-tanto reduction of the mortgage debt, otherwise it would be unjust to
allow the entire mortgage debt again to be borne by the remaining mortgage property.
Bybecoming the owner of part of the mortgage property it is not necessary that the mortgage  money would have been discharged even proportionately. It depends upon how the
mortgagee got share in the mortgage property. “

1) Hon’ble Court at the same time failed to consider the plight of the person who lost his land and forced to shoulder the burden of debt in the entirety, despite the fact that
Section 90 to 93 of the 1970 Act and Section 3 of the 1971 Act specifically provides that the rights of both the Mortgagor as well as the mortgagee comes to an end. Judgment discriminated the mortgagor against the mortgagee, by delivering the judgment sub-silentio.

Is it not the duty of the court to investigate as to how the mortgagee (Bank and not the Government) become the owner during the vesting process as provided under
Sections 90(3) to 93 of the KLR Act. In fact the Trial court discussed this aspect sufficiently in detail in para 9 of its judgment. However it appears that the Supreme Court judgment failed to read/contain it and to hold as to whether it was correctly written. It is a classic case of an error apparent on the face of the record, and also a per-incuriam judgment. Look at the opening paragraph of the judgment which shows that the judgment is written in a vacuum and not on the factual background of the case but totally in tangent on a point which was not involved in the case. Apex Court’s judgment begins with the following preface:

“1.The moot question is this: When a mortgage property, or any portion of it, is vested in Government by operation of law, would it amount to government acquiring thesaid property as contemplated in the last paragraph ofSection 60 of the Transfer of Property Act (for short the T.P. Act)”

m)  Look at the fallacy of the question framed, which demonstrates that the judgment failed to contain the facts of the case because the case of the Mortgagor was, that it is a case of ‘partial extinguishment’ under Section 90 to 93 of the Kerala Land Reforms Act, 1970 and Section 3 of the Kerala Private Forests (Vesting and Assignment Act, 1971’ and not ‘partial redemption’ under last para of Section 60 of the T.P. Act as framed in the judgment. Most importantly concurrent findings of two courts were made otiose by framing a wrong question and that also merely discussing a legal provision which had no application on the facts of the case. As already pointed out judgments of the Trial Court and High Court was not reversed but still it was declared that the mortgagor was not entitled for pro-tanto reduction of mortgage money. It is a clear case of error apparent on the face of the record. Most unfortunate part is that the fate of review petitions in the Hon’ble Supreme Court in not very encouraging. Then the question is as to whether it is the duty of the court to rectify its mistake, the moment it gets an opportunity. How can the litigant be made responsible for the ignorance of law of those who belong to the highest echelons,

 n)  Who is to be blamed? The litigant hired Senior Lawyers by looking at their proven track records and in many cases retired judges of those High Courts from where the matters are coming. The Trial Court and the High Court did their job exceptionally well but the judgment of Hon’ble Supreme Court failed. Even then often the courts put the blame on the litigant stating that he failed to take up the plea at the appropriate time. Is the litigant really the person to be blamed? Or is it the duty of the Court to undo the damage caused due to it’s own mistake because it delivered a per-incuriam judgment.

o) The High Court is now seized of the matter, since the correct legal position was once again raised during final decree proceedings. The Final Decree Court applied principles of res-judicata. Matter was taken to the High Court earlier. The Bench which heard the matter at the first instance set aside the judgment of the Final Decree Court, after appreciating the mistake on the part of the court, and decided to shoulder the responsibility. High Court held that even after the declaration by the Hon’ble Supreme Court on the question of Section 60
of the T.P.Act, still the Final Decree Court will have to look into pro-tantoreduction as permissible under law, i.e., Section 90 to 93 of the Kerala Land Reforms Act, 1970 and Section 3 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. This was done because pro-tantoreduction arises in two conditions i.e., (i) ‘when there is a situation where the mortgagee purchases part of the mortgaged property’[issue not involved in the present case] and the other (ii) ‘when there is partial extinguishment of mortgage debt’[as in the present case]. In the first case the entire Mortgage remains as it is but a portion of the mortgaged property is purchased by the mortgagee and a partial redemption is sought on the basis of last paragraph of Section 60 (the ‘act of parties’). In the second case, question of partial redemption never arises because in the said case part of the mortgage itself extinguished as an ‘Act of State’ (Special Statute governs). In the first case there is a merger of mortgagee’s right with mortgagor’s right, where as in the other, there is no such merger since it is an instance of partial extinguishment.

p) Even though the High Court set aside the final decree court’s finding and remanded the matter only to calculate the proportionate amount, the court below failed to appreciate that it was a limited remand. The agony of the mortgagor continued unabated. Court below once again gone into every aspect of the matter and reiterated that the case is barred by principles of Res judicata. This compelled the poor old lady to approach the High Court once again.

q) Unfortunately, this time the High Court felt that it’s hands are tied, since the Supreme Court judgment is a stumbling block. No doubt we will have to appreciate the limitations of the High Court despite being a constitutional court, because many times it feels that it is a subordinate court to the Apex Court, and judicial discipline demands that the High Court not to ignore a Supreme Court judgment, even if it was rendered sub-silentio. One most adorable thing reflected in the judgment is that while answering the first question framed as to whether the appellant is entitled for pro-tantoreduction under Section 90(3), 91 and 93 of the KLR Act and Section 3 of the Vesting Act of 1971, learned single judge answered it in the affirmative, whereby deemingly declaring that the judgment rendered by the Supreme Court earlier was wrong. However while dealing with the second question, the judgment is making an attempt to wriggle out of the situation already settled by the judgment rendered by his predecessor in the same matter. The previous judgment by his predecessor directing the court below to provide pro-tantoreduction now stands camouflaged. High Court earlier in R.F.A.No.760/2011 while setting aside the order of the Sub Court after considering the Supreme Court judgment had directed the final decree Court as follows:

“5................The encumbrance, to the extent it related to the land vested with the government by operation of statute, did not there after continue to lie in the vested area. If that would arise for determination in the Final decree proceedings in furtherance of the appellate judgment of the Hon’ble Supreme Court of India, among other things, the extent of liability which could be taken as covered by the land that went to the Government through the vesting processes and the proportionate reduction in the price that may have to be paid by the plaintiff to the Government, has also to be determined.In so far as the total liability that was wiped out by the Government and the accruals thereon is concerned, there can be no further dispute.”

In the second round High Court went in to a slippery terrain. It has quoted the following observation made by his predecessor :

“If that would arise for determination...“

and held that the said question does not arise for determination. Mistake committed by the High Court now is that it read those lines in isolation. Learned judge failed to read it along with the previous sentence which reads as follows:

“ The encumbrance, to the extent it related to the land vested with the government by operation of statute, did not there after continue to lie in the vested area.

What the High Court held in R.F.A.760/2011 was that, since the above question was considered and decided by the Supreme Court by applying Section 86 of the KLR Act, it is also necessary to decide an issue pertaining the Section 90(3), 91 and 93 of KLR Act. The limited remand was to decide that point i.e., “question based on Section 90(3), 91 and 93 of KLR Act”.

High Court in the second round in principle denied the relief already granted by the High Court earlier, wrongly interpreting the word to the word ‘if. The judgment failed reflect the old principle propounded by the Supreme Court:

“Law shall bend before Justice”.

Unfortunately in the present case, justice bend before the procedure namely ‘res judicata’.

Let us hope that the old lady may get justice finally, since there is some light at the end of the tunnel in view of the latest judgment of the Hon’ble Supreme Court written by Justice A.M. Khanwilkar and Justice Ajay Rastogi, in Civil Appeal No (s.) 5140 of 2019,
Sunil Vasudeva & Ors. v. Sundar Gupta & Ors.(2019 (3) KLT OnLine 3008 (SC)) discussed earlier.

An Open Letter to the Law Reforms Commission

(By T.J. Michael, Advocate, Thodupuzha )

 Recently an uncommon incident had occurred where a young IAS  officer is alleged to have caused an accident which had resulted in loss of life of a reputed journalist. The incident had occurred during odd hours of the night at about 1 o’clock in the morning. The accused is said to have been returning from a late-night party that also in a drunken condition.The incident had occurred at a stone’s throw distance from the Museum Police Station in Trivandrum. There is serious controversy as to the manner in which the police had dealt with the situation. Factors like the belated collection of blood sample to ascertain whether the officer was drunk at the time of incident and the preferential treatment that was meted out to the officer is unwelcoming and disturbing. To the dismay of a common man , the bureaucrat was enlarged on bail, as in an ordinary case of Section 304A  of the Indian Penal Code. The whole pandemonium appears to have cooled down and settled. This incident brings to my thought a phrase used by George Orwell in his  ‘Animal Farm’“ all animals are equal but some animals are more equal than others”. It is a typical case where our legal machinery turns out to be tooth less in such abominable crimes where human life is sacrificed in utter apathy.

My purpose of penning down this brief write-up is to drive home the fact that causing death of innocent people by insensitive men by reckless, rash and negligent acts very often in a drunken condition escapes the clutches of law as if from  a loose knot. It appears that the law enforcing agency conducts only perfunctory investigation presumably on the premise that the death caused is unintentional. The unpardonable reckless attitude of the offender very often escapes unnoticed or not being taken seriously. Even though there is much clamor and lamentation about road accident deaths the culprits escape scot free because of the  lackadaisical approach of the law enforcing agency. I feel that it is high time that serious thought has to be given on this matter. In this context I would like to make a suggestion that in the case of offences under 304A of the Indian Penal Code, change has to be made in the burden of proof in prosecution of the offence before the  Courts of Law. In my view ,which is of course  subjective, no person will be interested in falsely implicating a person in a case of accident death where the accident has occurred otherwise than by the negligence of the driver. So my suggestion is that in the case of offences under Section 304A, the burden that accused is not guilty of the offence has to be placed on the accused person. This would enable the driver of the vehicles to be more careful and  put him on the alert, especially by refraining from consuming alcoholic drinks when he has to take the wheel. It may not be forgotten that such changes of law have been adopted in other cases of recurring offences seriously affecting the fabric of the society  like dowry deaths. Even in the case of deaths due to medical negligence, it is highly cumbersome for the affected to prove the negligence of the Surgeon before the court as it involves many complicated medical information and evidence. It is seen by experience that it is a fight between unequals and every  concerted effort would be made from the part of medical officers. So I think it is only apposite to make necessary changes in criminal jurisprudence and the Evidence Act so as to shift the burden of proving the non-culpability to the offender. I would like to submit this proposal before the Law Reforms Commission

Some Court Room Thoughts

(By Girish Panju M.S., Deputy Director of Prosecution, Kollam)

 Trial court rooms have its own soul. It is interesting to watch like a movie. Always the court rooms are live and we can hear the hue and cry of the victims if we are prepared to observe it keenly. We also can feel the plight of some innocent accused who are even ignorant about the charge leveled against them till the pronouncement of the judgment. With deep anguish we can see the arrogance of the habitual offenders challenging the rule of law and trying to erode the administration of justice by all hooks and crooks. More than a quarter century, I have got the benevolent opportunities to test and smell the emotions of the court rooms, especially the lower courts.

“ I am cross examining the witness, sky is my limit and please don’t interfere…..”

Throughout the length and breadth of this country, a large number of advocates are under this wrong notion that with all vehement they are at liberty to put any questions during cross examination. Witnesses are supposed to be the guests of the court. But, unfortunately there was no one to help them from a blemish spitting character assassination by way of cross examination. Some statutory provisions have incorporated to safe guard the victims in sexual offence cases. But the fate of the other witnesses are still too pathetic. Certainly, cross examination is an art coupled with stuff. It is highly interesting to watch the cross examination by an eminent lawyer and we wonder how he demolishes the castle build up by the prosecutor. But, unfortunately, the era of such luminaries are lacking. Day long boring cross examination based upon irrelevant and groundless questions are being showered in a vehement and threatening manner is the contemporary situation.

Indian Evidence Act deals with the rights of the parties in the matter of evidence. It is the Criminal Procedure Code which lays down the procedure in criminal matters. The examination of a witness as laid down in Section 137 of the Indian Evidence Act includes his examination in chief, cross and re-examinations. Every statement made by a witness is presumed to have been made in answers to the questions put to him by the defense counsel or the prosecutor and it cannot be deemed to have volunteered by him in the absence of evidence to that effect.

The purpose of cross examination can be summarized as follows

1. To destroy or weaken the value of the evidence tendered by the witness.

2. To elicit facts favorable to the adversary.

3. To impeach the credibility and veracity of the witness.

See Hussena Lah v. Yerriahreported in (AIR 1954 A.P. 39).

Cross examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and it’s the yardstick to measure the accuracy and completeness of the story put forward by the witness. It is a powerful means to expose falsehood also. But, the right of the cross examiner is not unfettered. It is controlled by Sections 138, 139, 140,143,145,146, and 147 of the Indian Evidence Act. Section 148 to 152 of Evidence Act are shield for the witness against improper cross examination. Others are meant for constraining the cross examiner to confine to the relevant facts. Cross examiner can put questions with respect to relevant facts, facts in issue, and other matters though irrelevant, but to impeach the credibility of the witness. A composite question cannot be asked in cross examination. The court has an undoubted control and discretion in the matter of cross examination of a witness. A presiding officer is not a spectator and is not a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witness in order to ascertain the truth. But, he must do it without unduly trespassing upon the functions of the public prosecutor as well as the defense counsel. See Ramchandar v. State of Haryanareported in (1981 KLT OnLine 1033 (SC) = AIR 1981 SC 1036).

Protracted examination of a witness with questions which are quite irrelevant must be deprecated. Court shall not permit two or more questions into one. See Chahan Singh v. Statereported in (1971 KLT OnLine 1023 (SC) = AIR 1971 SC 1554).

In civil litigations, Order 18 Rule 12 of the Civil Procedure Code permits the court to watch demeanor of a witness and record his remarks thereon. Similarly, S.280 of the Criminal Procedure Code empowers the court to note the demeanor of a witness in a criminal proceeding. S.139 of the Evidence Act empowers the court to direct a person to produce a document. But unless and until he is called as a witness, he cannot be examined. S.140 of the Evidence Act provides for impeaching the credit of a witness by way of cross examination. This section is in harmonious with S.53 and 54 of the Evidence Act. S.53 says that in criminal cases the fact that the accused has got a good character is relevant. S.54 lays down that in a criminal proceeding, the fact that the accused person has a bad character is irrelevant, but it assumes relevance when the witness claims the contrary. So, if the accused seeks to prove in evidence that the accused has a good character, the prosecution is at liberty to challenge it by cross examination of the witness or examining any other witness. Character includes reputation also. But, it is to be borne in mind that both are not synonymous. Character is an expression of wide importance which takes in all traits special and peculiar qualities impressed by nature or habit which serves as an index to the essential intrinsic nature of a person.

Section 145 of the Evidence Act empowers the parties to cross examine a witness as to his previous statement with or without contradicting the same. As opined by our Hon’ble Apex Court in Tahsildar Singh v. Statereported in (1959 KLT OnLine 1412 (SC) = AIR 1959 SC 1012) that “S.145 contains two parts, both dealing with cross examination. The first part deals with the cross examination other than by way of contradiction and the second part by way of contradiction. But the second part cannot be invoked without putting questions under the first part. Under the first part, the cross examiner may cross examine the witness regarding the previous statement made by him in writing or reduced into writing without showing such writings to the witness. But the second part deals with the contradictions only. Before that the witness must be asked whether he made any previous statement in writing or reduced into writing. Thereafter to contradict such a witness by his previous statement, his attention must be drawn to those parts of the writing which are intended to be used for contradiction”. See also Benoy Kumar v. State(1997 Cr.L.J.362).The object behind S.145 Evidence Act is to give a witness a chance of explaining or reconciling his statement. As expressed by our Hon’ble Apex Court in Tahsildar Singh’scase, previous statement would be such statements as made during investigation. In this juncture, it is worth mentioning the dictum laid down by our Hon’ble Apex Court in State N.C.T of Delhi v. Mukeshreported in (2013 (2) KLT 984 (SC)). Paragraph 10 of the said judgment categorically expresses the view that “from the scheme of Criminal Procedure Code and Indian Evidence Act it appears that the investigation and the materials collected by the prosecution prior to the filing of charge sheet u/S.161 Cr.P.C. are the materials for the purpose of S.145 Evidence Act. The expression “previous statement made” used in S.145 Evidence Act cannot in our view be extended to include statements made by a witness after filing of chargesheet.” It is also made clear that S.145 of the Evidence Act must therefore be confined to statements made by a witness before the police during investigation and thereafter. It is also made clear that with effect from 31.12.2009 proviso to sub-section (3) of S.161 Cr.P.C., the statement made to the police officer u/S.161 Cr.P.C. may also be recorded by audio, video electronic means which can also be used for the purpose of S.145 of the Evidence Act. This decision has got a far reaching effect that even the previous statement of a witness after filing of charge sheet before the court cannot be contradicted u/S.145 of Evidence Act. But, certainly the legal presumptions contemplated u/s 80 of the Evidence Act is in favour of its genuineness. But, in Jasdeep Kaur Chandha v. State & Ors.(Crl.M.C.3102/2016 and Crl.M.A.13324/2016 decided on 18.10.2016) reported in 2016 Supreme (Del.) 3800, Supreme Today. A total different view was taken by the Delhi High Court, after distinguishing the dictum laid down in Mukesh case. Anyway, Tahsildar Singh case is the masterpiece in that aspect. In that verdict, the Hon’ble Supreme Court observed that :

1. A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purposes.

2. Statements not reduced into writing by the police officer cannot be used for contradiction.

3. Though a particular statement is not expressly recorded a statement that can be deemed to be part of the expressly recorded can be used for contradiction, not because it is an omission strictly so called, but because it is deemed to form part of the recorded statement.

4. Such a fiction is permissible by contradiction only in the following three cases.

a. When a recital is necessarily implied from the recital or recital found in the statement.

b. A negative aspect of a positive recital in a statement.

c. When the statement before the police cannot stand together.

Though previous statement of a witness is not a substantive evidence except S.161 Cr.P.C. statement, it can be used for corroboration u/S.157 Evidence Act and can be used for contradiction u/S.154 Evidence Act to test his veracity u/S.146 Evidence Act r/w 155(3) of Evidence Act. Unfortunately some members in the legal profession are under the wrong impression that S.145 Evidence Act contemplates contradiction of a witness statement with another. In this aspect, it is significant to go through the dictum laid down in Mohar Rai v. State of Biharreported in (1968 KLT OnLine 1132 (SC) = AIR 1968 SC 1281).

Section 145 of the Evidence Act has no application where a witness is sought to be contradicted not by his own statement, but by the statement of another witness. See Mohanlal v. State(1982 KLT OnLine 1013 (SC) = AIR 1982 SC 839).

It is the spirit of the legislation that the purpose of contradicting a witness is only to attack the veracity of the witness. The duty of the court is to find out if a witness, who had made contradicting statement earlier, is telling the truth in court. It is not the duty of the court to find out whether the contents in the previous statement made by the witness are true or not. Contradiction means the setting of one’s statement against the other and not the setting up of the statement against nothing. See Shasidhar Purandhar Hegde v. State of Karnataka(2005 (1) KLT SN 3 (C.No.5) SC = AIR 2004 SC 5075). It is also pertinent to say that previous statement cannot be read as a substantive evidence except u/S.33 of the Evidence Act. When the previous statement and the evidence before court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other. See also Tahsildar Singhcase.

Omissions are another category where the defense lawyers are locking horns with the witnesses. Actually all omissions are not contradictions. Omissions are contradictions only if

1. Two statements cannot stand together.

2. The important features of the incident deposed to in the evidence are incorrect. (See Tahsildar Singhcase)

A contradiction between two statements in mere matter of detail is unimportant unless the contradiction on a reasonable interpretation points to the falsity of that detail or at least raises a doubt as to its truth.

Every omission in the S.161 Cr.P.C. statement does not become contradiction. The 161 statement may be the answers to the oral examination by the investigating officer which he thinks relevant according to his information. The prosecutor or the defense lawyer who studies the case carefully after getting all information may try to elicit some other answers which may not be in the 161 statement. Such a statement cannot be an encyclopedia about the case. See Francis Joy v. State of Keralareported in 1989 (1) KLT SN 3 (C.No.4). “Omission with regard to the number of accused and colour of vehicle used by the accused are not found material and hence such omissions cannot be said to be contradictions” was the view taken by the Apex Court in Baldev Singh v. State of Punjabreported in
(2013 (3) KLT OnLine 1105 (SC) = 2013 Cr.L.J. 4874).Thus it can be seen that all trivial matters will not come under the purview of omissions. An intellectual and juristic approach is highly necessary to distinguish the evidence and to weigh its evidentiary value. The prosecution witness alone can be contradicted by the statement made before the police in the course of investigation. Neither a court witness nor a defense witness can be cross examined with reference to their previous statement recorded by the police. See
Shakila Khader v. Nausher Gana(AIR 1975 SC1324) and Laxman Kalu v. State of Maharastra
(1968 KLT OnLine 1125 (SC) = AIR 1968 SC 1390).

Section 148 Evidence Act empowers the court to decide whether the witness be compelled to answer or not in any question not related to a fact in issue or relevant fact, but only to shake the credibility of a witness by way of injuring his character alone. The court has power either to prohibit the question u/S.148 Evidence Act and if the question is allowed for drawing or not drawing an inference from the refusal of the witness to answer that question. The exclusions provided in sub-sections (2) and (3) in S.148 Evidence Act and S.151 and 152 Evidence Act are those incorporated with a view to protect witness from reckless and unjustifiable interrogation. S.149 Evidence Act provides that a question permissible under S.148 may be asked if the cross examiner has a reasonable ground for thinking that the imputation in the question which he conveys is well founded. S.150 Evidence Act authorises the court to haul up the offending counsel to appropriate authority for putting questions with unfounded imputation. S.151 Evidence Act prohibits indecent and scandalous questions. But such discretion is not exercisable by the court if it relates to the fact in issue or the relevant fact. Mere indecency will not prevent questions in trial. If evidence is necessary for the just decision of that case, such questions can be asked. In Subala v. Indiraan old case reported in (AIR 1923 Cal.318),the plaintiff asked the defendant if she was pregnant by a certain person. Since the plaintiff’s case is that witness did not inherit the property by the reason of chastity during lifetime of her husband that question became relevant and admissible. Section 152 Evidence Act empowers the court to forbid questions intending to insult or annoy the witness. Section 153 says that when a witness has been asked and has answered any question which is relevant to the enquiry only in so far as it tends to shake his credibility by injuring his character, no evidence shall be given to contradict him, but if the answers are false he may afterwards be charged with for giving false evidence. But it has two exceptions:

1. With respect to the previous conviction.

2. Questions tending to impeach his impartiality.

In both these circumstances, the parties are at liberty to adduce evidence to contradict that witness. Previous conviction can be proved in the manner prescribed u/S.294 Cr.P.C.

Thus the Evidence Act is the complete text dealing with the nature, manner and scope of examination of witness. Cross examiner need not wander around looking for the modalities of examination. For an eminent lawyer, cross examination even in a murder case is a matter for minutes only. But, now a days we see cross examination of the witness longing for days. Always bear in mind that witnesses are the ears and eyes of the court as said by the eminent Jurist Bentham. We have to confine the cross examination within the four walls and corners fixed by the law and certainly it will be a beautiful and amazing experience.

An Overview on Abrogation of Article 370

(By S.Sanal Kumar, Advocate, High Court of Kerala)

Article 370 of the Constitution has come to an end heralding the emergence of a new Jammu and Kashmir. The Presidential Order abrogating the special status to J. & K. and its bifurcation into two Union Territories is by and large accepted by the Nation. But the frail voices of dissension from opposition parties, describing the move as undemocratic and a treachery on the people of Kashmir, spell doom for its full grandeur and glory.

The Background of the Instrument of Accession:

Maharaja Hari Singh was the Ruler of Jammu and Kashmir princely State at the time of independence. Even before the ‘Quit India’ movement in British India, there arose revolt against Maharaja by National Conference under Sheik Abdulla and Muslim Conference in 1938, as “Quit Kashmir Movement”. With the end of Second World War, decolonisation started with Britain declaring its intention to accord complete Independence to India. The Cabinet Mission visited India on 23.03.1946 and issued Memorandum containing guidelines for the native States to follow regarding future course of action on independence. Provincial Governments under British sovereignty and princely States ruled by dynasties, and were under suzerainty of Britain were dealt with under the memorandum issued. The Princely States could opt to join as a federal unit under the proposed Dominion or could remain as Sovereign State. The Memorandum brought to an end the paramountcy of crown over princely States. Following this, Indian Independence Act 1947 was passed by the British Parliament dividing India into Dominion of India and Dominion of Pakistan. By Section 9 of the Independence Act, the Princely States were given the option to accede to either of the dominions as per Section 6 of the Government of India Act 1935. Full freedom was given to Principalities in joining with emerging Dominions or to remain as independent sovereign States. The Indian Independence Act contemplated a referendum to ascertain the wishes of people only in respect of North West Frontier Province and Sylhet in Assam (Section 2(2)(e) and 3(2) of the Act). The dominion of Pakistan was carved out from British India with West Punjab, Sind, Baluchistan, East Bengal and North West Frontier Province with the remaining British India to become the Dominion of India. But sourcing power from Section 9 of Independence Act read with Section 6 of Government of India Act, as many as 500 and more princely States executed Instrument of Accession with India or Pakistan, as the case may be before 15^th August, 1947. The princely State of Junagadh, Kashmir and Hyderabad were diplomatically dithering to take a decision on accession.

Maharaja Hari Singh of Kashmir wanted to remain as a sovereign State, opting not to sign the Instrument of Accession. But when the revolt against Maharaja by Pushtun Tribesmen with the aid of Pakistan army was about to dethrone the King, the assistance of India was sought by the Maharaja. With the signing of Instrument of Accession on 27.10.1947 by the Maharaja, which in form and substance was like 140 other Instruments of Accession signed by other States, the princely State of Kashmir became an integral part of India. (The Wire: Venketesh Nayak who sourced it from National Archives of India wrote in his Article on comparison with 140 other IOA). It did not contain any clause for referendum to be conducted for its full integration with Dominion of India. Archives on Constitutional literature say that Dr.Ambedkar was averse to the incorporation of Article 370 into the Constitution as according to him, it was against the terms of instrument of Accession and the intent of full integration of Kashmir with India. The task of drafting Article 370 was undertaken by Gopalaswamy Ayyangar, a Minister in Nehru’s cabinet without portfolio.

When Pakistan sponsored insurgency continued, India moved a motion in the U.N. Security Council in 1948 under Article 35 of U.N. Charter terming Pakistan’s intervention as a disturbance to international peace as also the tranquillity in Kashmir valley. This paved the way for ‘entanglement’ of India with UN dikat. It appears from records that the UN by Resolution No. 97 asked the Pakistan Military forces to demilitarise the area. As regards India it gave a direction to conduct a plebiscite in Kashmir to ascertain the wishes of Kashmir people regarding accession to India. (C.N.Agrawal Memorial Lecture by Dr.A.S.Anand, former Chief Justice of India reported in (1996) 4 SCC 11). Later, in 1951 when National Assembly was Constituted in J.& K., its representatives were elected through democratic process where the total 75 seats went in favour of the National Conference and its leader Sheik Mohamed Abdulla was elected as the Prime Minister of Jammu and Kashmir. The Constituent Assembly, by its resolution dated 15.2.1954, ratified the State’s accession to India in unequivocal terms. The National Assembly, while adopting its Constitution on 7.11.1956 declared in Article 3 that Jammu and Kashmir is and shall be an integral part of Union of India. Further Article 147 of J. & K. Constitution unequivocally says that Article 3 and 5
shall not be amended in any manner in future. It is also further laid down in Article 147 of
J.& K. Constitution that the provisions relating to the relations with Union of India are also not liable to any change by way of amendment. Though, technically no plebiscite as instructed by UN was conducted, still the declaration by the elected representatives of the J.& K. Constituent Assembly gives a democratic imprimatur to the accession of J.& K.  to India. TheConstitution of J.& K. was adopted on 7.11.1956.

Present Constitutional therapy done

Running with the tumultuous years in Kashmir after independence, the framing of Constitution of Union of India was taking place. The then Industries Minister in the Nehru Cabinet, Dr.Shyamaprasad Mukharji, resigned from the Cabinet on account of the decision to give special status to Jammu and Kashmir. His death in custody by the J. & K.
Government under Sheik Abdulla is still a mystery to be unravelled. When Article 306A (now 370), was introduced by Gopalaswami Ayyangar in the Constituent Assembly it is curious that the opposition came from a Muslim member, Maulana Hasrat Mohani (United Provinces: Muslim). He termed the granting of special status as discriminatory. Some excerpts from the Constituent Assembly Debates held on 17th October, 1949:

Honourable Shri. N.Gopalaswami Ayyangar:

............. I do not want to take much of the time of the House, but I shall briefly indicate what the special conditions are. In the first place, there has been a war going on within the limits of Jammu and Kashmir State.

.....We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.

.....Now, if you remember the view points that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system.
Article 306A is an attempt to establish such a system.

........Maulana Hasrat Mohani: Sir, I want to make it clear at the very outset that I am neither opposed to all these concessions being granted to my Friend Sheikh Abdullah, not am I opposed to the acceptance of the Maharaja as the ruler of Kashmir. And if the Maharaja of Kashmir gets further powers and concessions I will be very glad. But what I object to is this. Why do you make this discrimination about this Ruler? Mr. Ayyangar has himself admitted here that the administration of Kashmir State is not on a very good basis......

The Honourable Shri.N.Gopalaswami Ayyangar: That is a wrong statement. I never said so.

........Maulana Hasrat Mohani: That it will assume independence afterwards. But may I ask a question? When you make all these concessions for Kashmir I most strongly object to your arbitrary act of compelling the Baroda State to be merged in Bombay. The administration of Baroda State is better than the administration of many other Indian Provinces. It is scandalous that you should compel the Maharaja of Baroda to have his raj merged in Bombay and himself pensioned off. Some people say that he himself voluntarily accepted this merger. I know it is an open secret that he was brought from England and compelled against his will.....

Now time was overdue for the Government of India to bring to an end Article 370 for ensuring constitutional parity of States. Article 370(3) was invoked by the President for causing cessation of the Article itself. By invoking Section 92 of the J.& K. Constitution, the power of the Legislature of the State was assumed by the Governor. By the amendment of proviso to Article 370(3) with the effect of substituting `Constituent Assembly’ with ‘legislature of the State’, the Constitutional task was deftly done by the Government of India within the legal frame work. Article 370 was in fact the placenta in the birth of Jammu & Kashmir. The gestation period of Jammu & Kashmir is over and the birth of J. & K. has taken
place as twins. An excellent Constitutional gambit indeed it was.

Self Determination:

The Presidential order and Bills moved by the Government are termed as undemocratic by Opposition mainly on the premise that a recommendatory resolution of Legislature of the State is lacking as mandated by proviso to Article 370(3). The position is conceded by all concerned regarding the power of the President to issue notification to cause cessation of operation of Article 370 of the Constitution. But argument based on lack of concurrence of the elected representative is one essentially boiling down to the issue of self determination. Did Kashmir originally intend to go for self determination at the time of formation of Dominion of India and Dominion of Pakistan when Indian Independence Act was passed in 1947 is the moot question in this context. An emphatic `No’ is the answer to the said question. The Independence Act made it peremptory the holding of referendum only in the North West Frontier Province and Sylhet in Assam. It provided that these parts of British India could be made part of Pakistan subject to ratification by the people of the province through a referendum. But for the princely States, the wishes of the Ruler was the determining factor regarding accession to any of the Dominions under Section 9 of Independence Act in tandem with Section 6 of Government of India Act 1935. The princely States under the suzerainty of British Empire were returned their sovereign power by the British Crown to decide the issue of accession in accordance with the provisions in the Independence Act. The Independence Act contemplated a carte blanche to be given to the Rulers of Princely states, and no right of self determination of its people was conceded to, as far as accession to dominions is concerned. Article 370, originally titled as “temporary and transitional’ was later retitled as `temporary’ in 1963 (Constitution 13^th Amendment w.e.f. 1.12.1963). The J.& K.Constituent Assembly was formed on 31.10.1951. On 15.2.1954 the Assembly ratified State’s accession to India. The J.& K.Constitution came into being on 26.1.1957. The Constituent Assembly of J.& K. was dissolved on 17.11.1956. According to Mir Quasim
Resolution, the Constituent Assembly ceased to exist on 26.1.1957. Though initially Sheik Abdulla was elected Prime Minister, he was dismissed by Head of State (Sadr-e-Riyasat), Karan Singh, son of Maharaja Hari Singh in August 1953 and was put in prison. The task of framing Constitution was done under the Prime Minister ship of Bakshi Ghulam Mohammed. The declaration in the J.& K.Constitution that J.& K. is an integral part of India makes the self determination of people of J. & K. complete in itself. The abrogation of the temporary provision, Article 370, makes the integration a constitutional reality whereby a uniform Constitution is made applicable to the whole of India. Now the flesh and blood of Union of India is the States and Union Territories enlisted under Schedule I of the Constitution of India. Kudos to the Union of India for the bloodless Constitutional conquest of its integral part.

Territorial Integrity, Sovereignty and Self Determination

The concept of Nation State is the product of Treaty of Westphalia 1648. When cultural boundaries match up with political ones, the emergence of Nation State is the natural fall out. The creation of a uniform national culture by State intervention will naturally augment the formation of Nation State. Uniform language, ethos, State emblems etc. are contributing factors for formation of Nation State. The adoption of national policies on education, cultural affairs, civil relations among citizens by a responsible Government followed by its successful implementation eventually leads to Nation State formation. Territorial integrity and territorial sovereignty, not for Nation State alone but for all States, are necessary concomitant of Statehood. UN Charter enumerates territorial sovereignty and political independence as precondition for recognition as State. It is surprising that India, with its crippled sovereignty over an integral part of it, was nevertheless recognised as a Member State by UN so far. India’s territorial integrity and full sovereignty over its component States were an absolute necessity for its assertion as a State entity with full statehood in its conceptualisation. Emerging concepts of international law say that the right of self determination of people of an area is subservient to the larger essential attributes of statehood like territorial integrity and sovereignty. When the clash of logic is based on territorial integrity and sovereignty on the one hand and right of self determination on the other end, the former takes precedence over the latter.

Indian Episodes of annexation of territory

The annexation of Hyderabad to India is a classic example of assertion of territorial integrity and territorial sovereignty. Though Nizam of Hyderabad wanted to join with Pakistan, through a military intervention, called ‘Operation Polo’, the princely state of Hyderabad was made part of Union of India in September, 1948. The Nawab of Junagadh, desired to accede to Pakistan but Junagadh was annexed to Indian territory by military action. The referendum done on Junagadh under the supervision of Indian Military troop was only a farce, designed to give it the flavour of self determination. The annexation of Sikkim in 1975, which was a Protectorate of Union of India till then, is also another example of assertion of territorial integrity. A referendum done after the conquest in Sikkim was in fact a smokescreen to give legitimacy to the conquest. Liberation of Goa and Pondicherry, were done by way of similar military conquest.

Conquest for preservation of rights of ethnic groups

 On the International arena, the Russian annexation of Crimea in 2014 is another instance, where even a conquest is justified in the name of territorial integrity and preser-vation of rights of ethnic groups. Israel’s occupation of Galon Heights is now accepted by the US as an assertion of territorial sovereignty and integrity. Justice Anand, in his lecture (1996) 4 SCC Journal 11)draws parallel from the US annexation of Texas in 1845 from Mexico, when he talks about accession of Kashmir to India. The common feature of all these annexations is its justification for protection of rights of ethnic groups. The ethno-linguistic issues of Russians in Crimea, the sufferings of the US settlers in Texas were the propelling factors for the intervention of respective countries. The large scale exodus of Kashmiri pundits, following the oppression by the majority religious groups in late 1990’s is a legitimate reason for the Government of India for a complete military suzerainty over Kashmir. The resettlement of the Kashmiri Pundits in their home land is a constitutional compulsion for India for its intervention.

For a State to survive and progress, the territories in its corridor and contour are to be held in contiguity with complete sovereignty, which essentially is territorial integrity in political science. For India to be a nation with full sovereignty over its territory, the complete integration of Jammu & Kashmir is indispensable. Fortunately we have done it through constitutional means, though with a few fulminations over procedural niceties. Given the international scenario on Crimea and Galon Heights, even military deployment to secure peace and complete integration cannot be objected to. Territorial integration to secure peace is being accepted as a norm in international law as means to curb terrorism thriving on the platform of separatism.

Surgery by Constitutional means is now over. Political chemotherapy has to commence yet. Let us be hopeful for our Paradise on Earth to re-emerge with its full splendour and gaiety.