The Plight of A Borrower

(By Jacob Abraham, Advocate, High Court of Kerala)

1. “Neither a borrower nor a lender be, For loan oft loses both itself and friend, And borrowing dulls the edge of husbandry”. This was the advice given by Polonius to his son Laertes. The son was embarking on his visit to Paris for his education. The risk in lending money to a friend is clear from the expression itself. Whereas regarding the expression describing the risks involved in borrowing need an explanation due to its unfamiliarity. According to the Bard of Avon it indicates that you are living outside your resources and it is against good housekeeping. Shakespeare was speaking against lending and borrowing money. But in the case of lending and borrowing a motor vehicle in India, the consequences are much graver to the borrower than what the Bard or any one had in mind. One of the risks is the deprivation of receipt of compensation payable under Section 163-A of the M.V. Act, due to the principles of law laid down by the Apex Court in the judgement known widely as Ningamma’scase.

2. Ningamma and Anr v. United India Insurance Co. Ltd.(2009 (3) KLT Suppl.338 (SC) =
(2009) 13 SCC 710) is the judgement under consideration. The main principles laid down in this case are that a person cannot be both, a claimant and as also a recipient with respect to the claim and that a borrower of a motor vehicle steps into the shoes of the owner. To be precise the owner who is liable to pay compensation under Section 163-A cannot claim compensation under this section since he is the claimant and the recipient. The second aspect is that when one borrows a motor vehicle he becomes the owner of it (stepping into the shoes) and hence he cannot claim compensation under this section. Regarding the first principle there cannot be any dispute.

3. Regarding the second principle one has to say that it is not a sound one. This principle is laid down without any discussion or examination. The court simply says that a borrower when he borrows a motor vehicle steps into the shoes of the owner and hence he cannot claim compensation under Section 163-A. The borrower of a motor vehicle is elevated to the exalted position of an owner of it and that too without spending a single paisa from his pocket. In this process he is robed of his valuable right. What then happens to the lender/owner then is not made clear in the judgement. The idiom “stepping into the shoes” essentially involves filling of someone’s position. Whether this happens and the borrower becomes an owner when a motor vehicle is borrowed?. My answer is in the negative for various reasons. The first reason is available in the judgement itself. Just like a person cannot be a claimant and recipient at the same time, a person cannot be a lender (owner) and borrower at the same time. One cannot lend to oneself and one cannot borrow from oneself. Therefore a lender and a borrower always could only be different persons as their roles and the incidents of borrowing are mutually exclusive. In fact most of them are incompatible. Besides this, conferring honorary ownership (without any rights, liabilities or duties of ownership), rights and liabilities unintended and unwanted by them is wrong. When law gives freedom to the parties to choose, the parties cannot be thrust into roles which they do not want.

4. The second reason is that the learned judges do not explain the process by which or the law under which a borrower metamorphoses into a lender (owner). A motor vehicle is a movable and it is the Sale of Goods Act that governs the transfer of ownership or title in a motor vehicle. But for all the purposes of the M.V. Act the owner is one who satisfies the definition of “owner” in the Act. This writer is not oblivious to the fact that definitions of words and expressions in the M.V.Act are contextual and even when contextually interpreted neither of these acts automatically makes a borrower a lender (owner).

5. An interpretation of law should not be illogical or should not lead to unreasonable, unsound or incongruous results. Take a case where the lender (owner) after lending the vehicle requests the borrower to drop him in his house and sits by the side of the borrower or rides pillion. Take another case where the lender (owner) after lending the vehicle drives or rides the vehicle to his house and the borrower sits in the vehicle by the side of the owner or rides pillion. Take yet another case where the borrower after borrowing the vehicle engages a driver and both the lender and borrower are insidethe vehicle. As inNingamma’s case if the vehicle hits a bullock cart and all the travellers in the vehicle and the bullocks and the cart driver are injured and there are claims from the side of the injured and the owner of the bullock, under Section 163-A or 166 who will be held liable as the owner. Whether the insurance company applying the principles in Ningammaand as argued by its counsel (stepping into the shoes) in this case, will indemnify the borrower against the claim made against the borrower under the Workmen’s Compensation Act by the driver engaged by the borrower. Whether the owner can file a claim against the borrower and lender’s Insurer of the vehicle saying that on lending, the borrower stepped into his shoes and after lending he ceased to be the owner of the vehicle. Will the company then support the theory of stepping into the shoes. An accident involving one motor vehicle owned by a single person and a bullock cart but the single motor vehicle will be held to have different, separate and multiple owners in the aforesaid scenario that too when the cases are tried jointly. It will be worthwhile to know the defence of the insurance companies in each one of these cases. Obviously chaos will be the result. As the law now stands now, if the cart driver, for the injuries suffered by him files his claim under section 163-A, the borrower will be held as the owner. If he chooses to file his claim under Section 166, the lender will be treated as the owner. If his claim is for the death of the bullock or for the damage to the cart he will have to raise the claim under Section 166 of the Act and in that event the lender will be treated as the owner. When claims are there by the lender and borrower against each other, who will get compensation from the other. Or both will be dismissed. The M.V. Act, 1988 deserves better interpretation. Besides all these reasons there is a feeling that if full effect was given to the non obstanteclause in Section 163-A of the M.V. Act, the results would have been different.

6. Claims arising out of the use of motor vehicles form one of the single largest categories of cases pending in various courts in India. The principles laid down in Ningamma are religiously followed by the Apex Court and High Courts. It should be like that only. But surprisingly even any justifiable innovations by the tribunals are not seen encouraged. This has resulted in holding that wife using the husband’s vehicle or vice versa or father using the son’s vehicle or vice versa is an instance of borrowing and the user steps into the shoes of the owner. The courts omit to notice that normally cutlery, crockery, beds, etc, in a house are meant for the common use of the members of a family and the vehicle is also not an exception at least when members with proper driving license and with permission use the vehicle, in such cases no one thinks that the user had borrowed the item. In any view of the matter in such cases, at least no body is considered to be stepping into the shoes of somebody. Then why a different yardstick in the case of a motor vehicle. Large numbers of persons are denied compensation dueto Ningamma.

7. Fortunately the principles laid down in Ningamma are made applicable only in one situation. In a situation where the borrower/driver is an unlicensed person and the claims are made by third parties the registered owner is treated as the owner. Otherwise in such cases or in cases where the vehicle is uninsured the owners will argue that they have lent the vehicle. For taxation purposes also the registered owner is treated as owner. It is hoped that Ningamma will not survive long. Now the Apex Court has ruled in Naveen Kumar v. Vijaya Kumar (2018 (1) KLT OnLine 3088 (SC) = AIR 2018 (SC) 983 that for the purposes of the M.V. Act the registered owner is the owner. This judgement is by three judges and it specifies who the owner is. It appears that Naveen Kumar impliedly overrules Ningamma.

New Trends in Media: Desirable and Undesirable

(By Jyothi Abraham, Research Scholar,School of Indian Legal Thought,
                                    Department of Law, Mahatma Gandhi University)

“Give me the front page and you keep editorials.”  – Franklin D Roosevelt

The Journalism has also been accompanied by the emergence of trends many of which are to be welcomed and desirable and sever which are undesirable and portend ill for the future of Indian society. The journalism has become both a principle agency in fighting the forces which are threatening to erode the foundation on which our social structure is based and an instrument in the hands of those promoting these forces for their selfish ends. Some sections of journalism fight the tendency to build a structure of privilege and perk in India while several sections of it and its key personnel are participants in the process of perpetuating this regime and become its beneficiaries. Often the journalism has exposed scandals and some reports have led to executive or judicial action being initiated. On the other hand, there are numerous instances of unsubstantiated reports being published without any apparent attempt of verification of facts. Reporting now is widely practiced as though the reporter was born with license to interpret and comment according to their whims and fancies. Instead of proper investigation, and due care now a day’s journalists are doing Media Trials for breaking news for TRP.

Keynotes:Mass Media, Investigative Journalism, Media Trial.

Introduction

The word journalism is derived from Journal which means a daily register or a diary. To­day the word journal also connotes a newspaper, published every day or even less often or a magazine¹. Thus, Journalism means, the communication of information regarding the events of a day through written words, sounds or pictures. And a journalist is a person who writes for or conducts a newspaper or a magazine. He is also called a press man².

The Chambers 20th Century dictionary defines journalism as “the profession of conducting or write for public journals”. According to the majority of researchers, journalism means “the collection and editing of material of current interest for presentation, publication or broadcast”³. In other words, journalism means communication of information to the public by any media, be it a newspaper, radio, or T.V. A person engaged in journalism is called a journalist⁴.

Journalism helps to explain the events that impact our lives and is developed in a number of forms and styles. Each journalistic form and style use different techniques and writes for different purposes and audiences⁵. There are five principal types of journalism: investigative, news, reviews, columns and feature writing⁶.

a. Investigative

Investigative journalism aims to uncover the truth about a particular subject, person, or event. While investigative journalism is based on the basic principle underlying all journalism-verification and accurate presentation of facts-investigative reporters must often work with unco-operative or recalcitrant sources who do not wish to divulge information. Renowned investigative journalism, such as Bob Woodward and Carl Bernstein’s uncovering of the Watergate scandal, can upend major institutions significantly influence public life.

b. News

News journalism is straightforward. Facts are relayed without flourishes or interpretation. A typical news story often constitutes a headline with just enough explanation to orient the reader. News stories lack the depth of a feature story, or the questioning approach of an investigative story. Rather, they relay facts, events and information to society in a straightforward, accurate and unbiased manner.

c. Reviews

Reviews are partly opinion and partly fact based. The review needs to accomplish two things: one, accurately describe or identify the subject being reviewed, and two, provide an intelligent and informed opinion of the subject, based on research and experience.

d. Columns

Columns are based primarily on the personality of the author, allowing him or her to write about subjects in a personal style. Column writers can take a humorous approach, or specialize in a particular subject area or topic. It’s important for columnists to develop their own voice that is recognizable by their readership. Columnists can interpret events or issues or write about their own personal experiences or thoughts. Columns are usually published weekly.

e. Feature Writing

Feature writing provides scope, depth, and interpretation of trends, events, topics or people. Features aim not only to thoroughly explore a topic by conducting interviews with numerous experts or the key people involved, but to offer a previously unseen perspective on an event, issue, or person. Feature writing commonly wins prestigious awards when it manages to achieve this goal. Features usually have the highest word count of all journalism types.

New Trends: Investigative Journalism and ethics

Let’s analyze two problematical issues that face reporters who investigate sensitive subjects the frequent, almost endemic resort to deception, and dealing with anonymous and confidential sources. The generally agreed rules relating to the use of deception in investigation are clear enough; the problem is with their implementation or, rather, enforcement in newsrooms⁷. The first rule prohibits resort to deception unless it becomes clear that the information sought by the journalist, on a matter of significance, cannot be obtained in a straightforward way. The second rule requires that the ‘public interest’ test be applied if the deception contemplated is serious and would not be countenanced in the normal professional course. The third rule lays down that any investigation that relies on deception must be closely monitored by an editorial supervisor with sufficient experience to make calls on what is and is not legitimate from the standpoint of professional ethics.

The use and misuse of anonymous and confidential sources is a global phenomenon, a minefield that has claimed many casualties and also taken a toll of the public’s trust in journalism⁸. The real problem for Indian journalism today is not so much the protection of anonymous and confidential sources. It is the license given to official, corporate, and other privileged sources to use and abuse its columns and broadcast time and space, hiding behind the veil of anonymity. If they are free from scruple, these sources are able to wield power and influence without responsibility promoting official agendas and special interests, attacking and, at times, scandalizing opponents and opposing views, planting self-serving stories and, from time to time, plain disinformation⁹.

Since the justification for the demand of anonymity and confidentiality is rarely questioned by reporters, and since the deals struck routinely between reporter and privileged source to grant confidential status are rarely monitored and supervised properly within the newsroom, the misuse of sources by journalists, and what is even more damaging, the misuse of journalists and the news media by privileged sources have assumed epidemic proportions. This is where clear, precisely formulated, and well-publicized editorial guidelines
are badly needed in Indian newsrooms¹⁰.

Investigative journalism¹¹ of quality and relevance is valuable in itself, in what it can do for ordinary folk and for society, typically holding up truth to power. But it can also play an instrumentalist role in re-energizing and revitalizing the field of professional journalism that often seems to be tired, losing steam, and shedding value¹². In India and South Asia, the news media are still in growth mode, but there are indications that the global trends will catch up with us sooner than we think. Imagine what a regular flow and, over time, given our human resources, an explosion of high-quality investigations, carried out in the public interest on subjects that matter, can do for the vitality and social value of reporting. Imagine what this can do for trust in, and engagement with, professional journalism and the news industry in our part of the world¹³ .

National security v. Media

Our Media, Electronic, Social Media are at it. This very Media made a mess in 26/11 and live reporting gave away positions of our Security Forces and cost lives. This very Media and Social Activists, NGO, went to town stroking emotions to get the Passengers of 814 released, in exchange for Terrorists, which are a cause of problem in the J & K. This very people and Media went to town and made a general hue and cry to put pressure on Government to release terrorists in exchange for Minister’s daughter.

Media and new media’s are making Wing Commander Abhinandan Varthaman video goes viral, and whipping up emotions of public and Mirror and other channels are running a campaign “Bring Back “Abhinandan”, what is the Government Plan to get the pilot back’ is whipping up emotions to put pressure on Government, to deescalate, reduce pressure on Pakistan. Abhinandan not answering about his personal life or information’s about himself questioned by Pakistan army, But our so called media for rating their channel TRP they will tell, which Aircraft took off from where, where Abhinandan comes from and where his parents stay. Today’s irony of our horrible media and immature social media users. These Media Hounds should be put away for endangering National Security and disclosing Fixed Assets. A recent gold looting case reported by Malayalam news channel that the victim’s mobile phone was in bag which contained gold which was looted and investigation is progressing as per mobile phone signals. This news will help thieves or culprits to escape if they see that news.

Hard-hitting and honest, journalistic initiatives like Bofors case, Tehelka case etc., were why the press is called the fourth pillar of democracy.

1.The Bofors scandal that broke in 1987 marked a watershed for India – it was the first-time corruption became an intensely public and political issue. The scandal was uncovered mostly by the Chennai-headquartered The Hindu and reported by Chitra Subramaniam-Duella and N.Ram. Almost 200 documents relating to Bofors were secretly sourced, verified and translated from the Swedish language before being published along with interviews and analytical pieces.Such was the public fury stoked by this investigation that the government in power eventually ending up on the losing side in the 1989 general election. Interestingly, the Bofors expose was also featured as one of the 50 great stories produced by Columbia Journalism School alumni. N.Ram is one himself in the past 100 years.

2. Tehelka’s Defence Deals Expose: Even as the nation was trying to find its feet after being knocked off balance by the massive Bhuj earthquake, on March 13, 2001, Tehelka published an investigative report that ripped the lid off the murky world of defence deals.Carried out using hidden cameras, the investigation (called Operation West End) publicized secret videotapes of top politicians, bureaucrats and military official accepting bribes from two reporters (who posed as arms agents). The resulting furore created a major political storm and led to the resignation of those indicted by the videotapes. Interestingly, the same year, Tehelka also blew the lid of the explosive match-fixing scandal in Indian cricket.

3. Indian Express’s Cement Scam Expose: On the morning of August 31, 1981, readers of the Indian Express woke up to find a meticulously-researched expose on corruption in the grant of government cement quotas, complemented by supporting evidence and a blistering analysis that ran into 7,500 words. The swift, bold and bloodless journalistic coup has since come to be known as India’s Watergate – or the Cement scandal.Almost overnight Arun Shourie, the then-executive editor of the Indian Express, became a national “hero” for his consciously studied and fearlessly pursued investigation of organised corruption in high places. In fact, it was after this incident that the irrepressibly buoyant MP Piloo Mody famously remarked, “Can you imagine the improved state of the nation if we had 10 Arun Shourie’s working instead of one?

4. Indian Express’s Human Trafficking Expose: The name Ashwini Sarin is not very famous, but in the world of media, he is known as the man who showed how investigative journalism can further the cause of democracy. His sharp and penetrating investigative articles exposed the family planning atrocities during the Emergency, the multi-crore defense vehicle disposal racket and the torture of Tihar Jail inmates. However, the Indian Express reporter is best known for his incisive report on human trafficking that created a whole discourse around flesh trade, controversial as it may have been. In 1981, he exposed the sordid racket by breaking the law himself (when he bought a tribal girl named Kamala) and shows how easy it was to buy humans in India. His work also inspired the movie and play named ‘Kamala‘.

5. Open Magazine’s Nira Radia Tapes:In November 2010, Open magazine carried the transcripts of telephone conversations between Nira Radia (a political lobbyist cum PR honcho) and politicians, industrialists, officers of corporate houses and senior journalists. The tapes wire-tapped by the Income Tax department on a tip-off by the Central Board of Direct Taxes shone a harsh light on the murky manipulations that take place at the highest levels in the country to maneuvers government formation, influence public opinion, and cater to corporate interests. Outlook magazine followed with similar story just days later while the infamous audio recordings were submitted to the Supreme Court by advocate Prashant Bhushan as part of a PIL on the 2G spectrum scam. One of the fallouts of this story was that the indicted corporate group terminated all commercial engagement with the Outlook Group but the magazine’s undaunted editor (Vinod Mehta) stood his ground.

Furthermore, the story of investigative journalism in India would be incomplete without mentioning the important role played by alternative media like CG Net Swara of Chhattisgarh. Founded in 2010 by Shubhranshu Choudhary, CG Net Swara helps poor villagers fight exploitation and oppression by local authorities. For instance, one when the circle officer refused to pay them for work done under the Mahatma Gandhi National Rural Employment Guarantee scheme (and even shouted at them for coming so often), the officer’s harsh rebuke was recorded and published on India’s first mobile community radio. After this attracted the attention of mainstream media, Government took action against the errant officer.

Over the past few decades, Indian media is increasingly being driven by profits, and has all but abandoned its role as the fourth pillar of democracy. In this landscape, far from being appreciated, good reporting is actively censored. Editors play brokers, trying to balance various interests while maintaining a veneer of professionalism. And owners have pawned their brands for political and commercial glory. The fastest promotions and the fattest salary packages are reserved mostly for middlemen, who masquerade as journalists but primarily fix deals and manage the sundry troublemakers for the media baron politicians, tax authorities and the police, among others¹⁴ .

Thus, most reporters simply report on stories coming out in the newswires, which churn out public-relations material for the establishment. The reporters mildly modify these stories, insert their names, and file their drafts. The editors are, in turn, happy that there is no difficult copy to edit, no corporate giant to pacify, no government bullies to be dealt with. These phony bylines are all these reporters can hope for in big newsrooms¹⁵. As a result, most newspapers look and read identical to each other. The rest of the daily carry’s corporate announcements, a few off-beat human-interest stories, and some data-based articles¹⁶. There is no investigative journalism. Now emerged a new trend in media room it’s called media trial.

The emergence of media and its easy accessibility has led to the beginning of a phenomenon called ‘media trial’. Media platforms are used as a medium to make the voices heard and mobilize popular support. It is now a widely recognized fact that the media has the potential to facilitate social transformations by promoting and disseminating information and ideas¹⁷ . When we talk about this potential, we cannot afford to deny the role media play in the context of the accused issues in the society¹⁸ .

Media plays a very important role in changing the viewpoint of the audience. The world is made aware of the scandals, heinous crimes or any other unpleasant incidents making their way into the society in the last two decades the impact and the effect of media on human lives has increased manifold. Media has a tentacle reaching into every nook and corner of the society, be it a village or a metropolitan¹⁹. In this era of globalization, the world has shrunk just to a room because of various modes of media communication. The social media along with conventional media has given an opportunity to the common man to express views through Blogs, Website posts, Facebook, Twitter etc.

Recently, numerous occasions have come to pass when media after carrying out their own investigation passed a verdict in a case, thus stretching their freedom way too far, to the extent of intervening in the arena of the judiciary. Media is accused of creating an environment of public frenzy equivalent to lynch mob which not only makes a fair trial unworkable but also results in the intense public scrutiny of the person under trial. In order to assess the role played by the media in today’s dynamic world where lives are changing every second, the role played by the media and challenges it is facing in present times.

The media exceeds its right by publications that are recognized as prejudicial to a suspect or accused. Reports concerning the character of accused, publication of confessions, publications which comment or reflect upon the merits of the case, photographs, police activities, imputation of innocence, creating an atmosphere of prejudice and criticism of witnesses are considered as prejudice²⁰.

Conclusion

Despite the fact the Constitution of India guarantees basic Human Rights and Fundamental Rights to an accused, the paper would conclude that, ‘media trial of cases involving accused hamper rights of the accused as well as reinforce the social morality/values by moral policing them in public media platforms. In this sensational reporting and the moral judgments flying thick and fast about accused values and character, there is one question that haunts us: what if, a few years later, the courts determine that the prosecution has failed to make their case against his/her and his/her co-accused beyond ‘reasonable doubt’? What if the courts are compelled to exonerate/acquit his/her? Will we, as a society that is judging his/her, ever be able to restore the lives of the accused and all those connected to them to normalcy? There is unfortunately no mechanism for providing reparations to the victims of a media trial.

Footnote:

1. M. FERGUSON, Electronic Media and Redefining Time and Space (1990).

2. N. GARNHAM, The Media and the Public Sphere (1986).

3. D.H WEAVER, The Global Journalist (1998).

4. According to Webster’s Third International Dictionary, Journalism define as “The collection and editing of material of current interest for presentation, publication or broadcast”.

5. P. GOLDING, G. MURDOCK, Ideology and the Mass Media: The Question of Determination (1979).

6. G.MURDOCK, Redrawing the Map of the Communication (1990) ed.M.FERGUSON, Public Communication London Sage.

7. L. SUNG AND A. D. DEACON, New Communication Technologies and Deregulation (1994).

8. M.Gurevitch Mass Media and Society(1991).

9. Louisa Preston, “The role of the journalist in the surveillance of justice, An unpublished essay for Broadcast Practice” 3, (1999).

10. J.CURRAN, Mass Media and Democracy : A Reappraisal (ed) M. Gurevitch, Mass Media and Society (1991).

11. D.WEIR, How the Center for Investigative Journalism Gets a Story ed Addison Wesley (1983).

12. MOHAMMADI A, Questioning the Media: A Critical Introduction (1995).

13. P.Schlesinger, “Putting Reality Together”, London: Constable. P.Schlesinger, Rethinking the Sociology of Journalism: Sources, Steategies and the Limits of Media- Centrism (1990).

 Model Code of Conduct – Its Scope, Sweep and Applicability to Co-operative Societies

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

Model Code of conduct for level playing field^*

Indian elections are acknowledged for a number of innovative measures which facilitate successful and meaningful electoral participation.  Model Code of Conduct (MCC) is one such significant and successful contribution of Indian elections. Since 1968, MCC has emerged as a binding ethical code subsequent to consensus amongst all political parties to facilitate a level playing field and for observance of ethical behaviour during elections.  The MCC has been issued by the Election Commission of India under its executive power.  The Supreme Court in its several pronouncements has recognized the fact that the Election Commission is well entitled to take necessary steps as per the provisions of the MCC to ensure conduct of free and fair election.  This code is considered to be the moral fabric of successful electoral odyssey.

The MCC is a singular contribution by political parties to the cause of democracy in India. It ensures a level playing field in the arena of election, where the party in power cannot take any action in close proximity to announcement of election. The object of the MCC is that energy to do good by the party in power should not be used on the eve of elections, so as to derive any benefit during elections. The MCC comes into operation right from the time and day, the election schedule is announced by the Election Commission.

The MCC applies in relation to all elections to House of People and State Assemblies. It is also applicable in case of elections to Legislative Councils from Local Bodies, Graduates’ and Teachers’ Constituencies. At the time of a general election to the House of the People or to a State legislative assembly, the MCC applies throughout India or, as the case may be, the State concerned. In the context of a bye-election, it has a limited application in the district or districts in which the Assembly/Parliamentary Constituency going to poll lies. The provisions of the MCC apply to all organisations/committees, corporations/commissions etc., funded wholly or partially by the Central Government.

At the time of each general election, the Election Commission issues directions to Union Government and State Governments concerned to refrain from making announcement for any major financial initiative or undertaking any new developmental scheme/project which can be perceived as distorting to the level playing field for all political parties. Any action in contravention of the provisions contained in the MCC including any publication of its advertisements by them highlighting their achievements or announcing new subsidies, tariffs or schemes would attract the provisions of the MCC and tantamount to violation of the same.

MCC is not a taboo

Though the purpose and object of the MCC is not to stall the activities of the Government citing election schedule, time and again Government departments, corporations, councils and co-operatives refrain from doing the routine activities citing the MCC as the reason [or a pretext).  Even the schemes which are routine in nature or in operation as a continuing scheme are put on hold.  Whether such a ban is fair and serves the objective of the MCC can be examined in the light of certain decisions of the High Courts.

In Babu v. Election Commission of India(2006 (2) KLT 137) the question was whether the action of the Election Commission directing the State Government to put on hold the decision to implement the recommendations of the Pay Commission was legal. A Division Bench of the Kerala High Court held as follows:

“In view of the budget speech and announcement of the Government that recommendations of the Pay Commission will be implemented on 10.2.2006, it cannot be stated that the decision to implement the recommendations of the Pay Commission was made after the Model Code of Conduct came into force. Even the formal decision of the cabinet was also taken on 1.3.2006, before the commencement of the election schedule. Only modalities were chalked out by the special cabinet meeting after the pronouncement of the election. Therefore, even if Model Code of Conduct came into force and implementation of the recommendations of the Pay Commission is against the Model Code of Conduct, the decision to implement the recommendations of the Pay Commission was taken before the announcement of election schedule and hence there is no embargo in implementing the Pay Commission report.”

The solemn purpose for which the MCC should come into play was succinctly brought out by the Kerala High Court in Intelligence Decision Systems (India) P. Ltd. v. Chief Election Commissioner(2006 (2) KLT 454) in the following words:

“The object of model code of conduct is not to stop all governmental activities in the State pending elections. Notwithstanding the elections, the normal governmental functions should go on. It is only where with the intention of influencing the voters of the State the party in power declares any promises to the people that the model code of conduct comes into play. Simply because a normal governmental function would also result in some benefit to the public at large, that would not come within the ambit of the model code of conduct. Election Commission should examine these aspects carefully before coming to the conclusion whether the action infringes the model code of conduct and shall not interdict all governmental functions simply because it would result in some benefit to the voters of the State or the public at large.”

It was held in Omprakash v. Chief Electoral Officer & Ors.(AIR 2009 Raj.161) that the Chief Electoral Officer cannot interdict the Regional Transport Authority and observed as follows:-

“In the circumstances, therefore, the view taken by the Chief Electoral Officer that the Regional Transport Authority, which is a quasi judicial authority, should not pronounce the order even after hearing is complete cannot be sustained in law. The direction of the Chief Electoral Officer to that extent is declared illegal. The Regional Transport Authority would now be free to pronounce its order.”

The question before the Kerala High Court in T.M.Basheer v.  Secretary, The Regional Transport Authority, Ernakulam & Anr.(2016 (2) KLT 108),W.P.(C). No.9390 of 2016 (W) dated
21.3.2016 was should the statutory exercises by the Regional Transport Authority or its Secretary in the matter of granting permits, conducting timing conferences or allowing replacement of the vehicles be held up owing to the MCC for election?

Answering the question in negative, the Court held that the Regional Transport Authority or its Secretary is exercising only quasi judicial functions in dealing with the applications for permit or settling the timings. The grant of permits or its renewal or the settlement of timings is not a bounty but valuable rights to the operators restricted reasonably by the Motor Vehicles Act. No superior authority can dictate in what manner the power vested in the Regional Transport Authority or the Secretary has to be exercised in a given circumstances. The mere fact that the grant of permits or the replacement of the vehicle in exercise of the quasi judicial function would benefit the public at large is inconsequential. The election will come and go and the statutory exercise by the quasi judicial authority need not be deferred on the premise of the MCC. The MCC does not fetter or keep in limbo the exercise of statutory functions that are manifestly quasi judicial in character.

Co-operative societies not funded by Government are not bound by MCC

The prayer of the petitioner co-operative society before the Division Bench of Gujarat High Court in Mehsana District Co-operative Milk Producers Union Ltd., v. The District Election Officer, Mehsana and the District Collector, Mehsana, Special Civil Application No. 6043/2019dated 16.4.2019 was that the Model Code of Conduct shall not come in the way of the petitioner society in holding the special general body meeting and a direction restraining the respondents from interfering with the holding of the special general body meeting on such date as may be permitted by the Court.

By the impugned communication, the first respondent directed the petitioner Union to postpone the special general body meeting in view of the code of conduct having come into force. It was the case of the petitioner that the code of conduct came into force on 10.3.2019 on the declaration of the Lok Sabha elections, before which, the agenda notice dated 8.3.2019 had already been issued. It was also the case of the petitioner that there was no violation of the MCC in holding the special general body meeting.

According to the petitioner, a meeting held by a co-operative society in the regular course of its business, would not fall within the ambit of the MCC. Vehemently opposing the petition, the first respondent, referred to clause 3.5 of Chapter 3 of the MCC to submit that provisions of the MCC apply to all organizations/committees, corporations/commissions etc. It was submitted that co-operative societies would fall within the ambit of the expression ‘corporation’ and hence, the MCC is also applicable to them. It was submitted that the election officers are required to see that public funds are not misused for the purpose of influencing the voters. It was contended that the blanket submission that the MCC will not apply to co-operative societies is not correct, more so, when the co-operative is funded by the State/Central or any Government body.

In the backdrop of the above facts and contentions, the first question which arose for consideration is whether the MCC would be applicable to the petitioner Union. On a plain reading of the clause 3.5 together with the provisions of the other chapters of the MCC, more particularly Chapter 5 thereof, it is evident that the intention is to cover those organizations/committees, corporations/commissions etc., funded wholly or partially by the Central Government or any State Government who carry on any developmental activities on behalf of the Central Government or the State Government. Insofar as co-operative societies are concerned, on a plain reading of clause 3.5 of the Code of Conduct, it is evident that unless such society is funded wholly or partially by the Central Government or the State Government and is carrying on development work on their behalf it would not be governed by the MCC during the routine course of its business.[Italics to add emphasis]

In the opinion of the Court, the receipt of some aid by the petitioner society in the year 2016-17 for bulk purchase of coolers or receipt of some subsidy from NDDB in the year 2017-18, cannot be equated with Central/State Government funding as envisaged in clause 3.5 of the MCC and hence, the petitioner Union would not be governed by the MCC.

Assuming for the sake of argument that the MCC applies to the petitioner Union, what is then required to be examined is whether holding of a meeting on 24.3.2019 to discuss agenda items issued on 8.3.2019 can be said to be in violation of the MCC. On a plain reading of the two contentious agenda items, it was apparent that both the items relate to amendments of the bye-laws of the petitioner Union, which have nothing to do with developmental activities nor do they relate to distributing freebies so as to influence the voters. On fails to understand as to how amendment of the bye-laws of the petitioner Union would have an impact on the voters as contemplated under the MCC. Besides, at best, if the respondents found two agenda items to be objectionable, discussion on those two items could have been suspended, but there was no reason to suspend the entire meeting and thereby causing immense prejudice and hardship to the petitioner Union and the persons who were to participate in the meeting.

The conduct of the respondents and the unduly prompt manner in which they have acted, gave clear indication that the powers exercised under the guise of implementation of the MCC have not been exercised for the purpose for which they are vested. The MCC clearly does not apply to the petitioner Union. Moreover, the items No. 3 and 4 of the agenda items of the special general meeting that was to be held on 24.3.2019, cannot in any manner, be termed as violative of any of the provisions of the MCC. Under the circumstances, the impugned direction issued to the petitioner not to convene the special general meeting while the MCC is in force, cannot be sustained. The petitioner union was permitted to hold the special general body meeting which had been postponed by virtue of the communication dated 22.3.2019, even during the period when the model code of conduct is in force. In fine, the impugned communication was set aside and the petition stood allowed.

Impact and implication of the Judgment

It is unfortunate that all co-operative societies are viewed as the extended arms of the Government and all the rules in force for the Government are mechanically made applicable to co-operative societies, whether they are funded by the Government or not and whether the MCC would be applicable to such societies.  The activities of the societies are, by and large, stalled when the MCC is in force and the commercial activities are bound to suffer.  It is fervently hoped that the authorities would understand the impact and implication of the judgment of the Gujarat High Court in the light of the other judgments referred to, and act to the best advantage of the co-operative societies and at the same uphold the spirit of MCC.

Foot Note:

 *Inputs, with grateful acknowledgement, from the Manual on Model Code of Conduct (for guidance of political parties and candidates and other relates guidelines), March 2019 - Issued by the Election Commission of India.

With or Without Robes

(By Mathew Philip, Advocate, Kottayam)

The Law Lords or the Privy Council never appeared in robes. Justices of the Supreme Court of U.K. followed their tradition.

The gown has a surprising origin. It is associated with the funeral of King Charles II of England, one of the most popular and beloved Kings. Rightly, he was known as Merry Monarch, for his liveliness and hedonism. John Wilmot, a contemporary English poet and friend, portrayed him:

We have a pretty witty King

Whose words no man relies on

He never said a foolish thing

And never did a wise one.

When King Charles II died in 1685, the gentry began wearing black gown as a symbol of mourning. The formulation of a uniform for lawyers was in contemplation, that time. The black colour was preferred because it signifies authority and power. The black robes of the priests show their submission to God. Just like that, the black gown of the lawyer show his submission to justice. Also the black colour signifies that the law is blind; to the powerful and powerless, to men and women and to the rich and poor.

Wigs also appeared in 17th century during the reign of King Charles II. They were fashionable in English upper class. Now after centuries, the charm might be lost, but wig continues to be part of English lawyers. Moreover wigs and gown provide a degree of anonymity to the lawyers and judges.

The two pieces of white cloth in the neck band represents the two tablets believed to be handed over to Moses at Mount Sinai. The tablets contain laws between man and God and man and man. Bands give the message that the lawyer honours the law of God (natural law) and the law of man.

While the black colour represents nobility and authority, the white signifies light and goodness and the common man.

Black coat and trousers were in vogue for the lawyer community even before the arrival of gown and bands.

Black and white uniform for lawyers is accepted worldwide. It is followed with slight variations in shape, in Scotland, Australia, Germany, Canada, New Zealand, Hong Kong, Pakistan, Sri Lanka, Malaysia and Cypress.

In India the dress code is formulated under the Bar Council of India Rules. However there are certain exemptions. A black tie can be used instead of bands in Courts other than Supreme Court/High Courts/District Courts and City Civil Courts. Advocate’s gown is optional in courts other than Supreme Court and High Courts. The black coat is not mandatory, during summer, in courts other than Supreme Court/High Courts.

There were interesting litigations concerning robe. Prayag Das, an advocate practicing at Mofussil courts in Bulandshahr, approached Allahabad High Court (AIR 1974 All.133) with a prayer to allow him to appear, wearing Dhoti, Kurta and gown as his dress. The Hon’ble Court reminded the importance of Chapter II Part VI of the Bar Council of India Rules which reads:

“An Advocate shall, at all times, comport himself in manner befitting his status as an officer of the court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non professional capacity may still be improper for an Advocate.”

The Hon’ble Court observed that appearing without the prescribed dress is to show disrespect to the Court and the court is certainly entitled to refuse audience. It is held that the “petitioner who was wearing a Dhoti and Kurta with a gown violated the prescribed “dress and the learned Civil Judge was within his rights to refuse audience to him and the impugned orders are valid and legal.....Justice can best be administered when legal proceedings are conducted with decorum and a certain degree of formality. “The place of justice” as Francis Bacon remarked “is a hallowed place” and those seeking its aid either for themselves or those whom they represent should so conduct themselves as to uphold its dignity. The trappings of a court room and the costume specially meant for the Court and its officers, invest the Court with a sort of dignity which is not without its effect. The traditional prescribed dress of an Advocate gives him certain aloofness wherefrom his submissions come with added force. As A.G.Gardener has so eloquently expressed, “Dress has its spiritual and moral reactions. It may seem absurd, but it is true that we are in a real sense, the creatures of our clothes”.

To emphasize the need of proper dress the Hon’ble Court quoted the story of an Australian squatter:

“The apprehension might be well illustrated by a dialogue which is alleged to have transpired between the Australian squatter and his friend who visited him on his estate far away in the wilds of the interior. The friend asked him why, in so remote a place he make it a practice to “dress” for dinner. “I do it “ said the squatter, to avoid losing my self respect. If I did not dress for dinner I should end by coming into dinner in my shirt- sleeves. I should end by not troubling to wash. l should sink down to the level of the cattle. I dress for dinner, not to make myself pretty, but as a spiritual renovation”.

Another interesting case arose in our High Court. The petitioner advocate appeared before the Joint Commissioner of Excise, Trivandrum. The authority denied audience as he was not in his robes. The Hon’ble Court held that wearing gown before an authority is optional. He could also wear a black tie instead of bands, according to Bar Council of India rules.

The fight against preferential rights to Senior Advocates came into surface. Petitioner is aggrieved by the modified dress adopted by Senior  Advocates. Only one dress code is available to the community of lawyers according to Bar Council of India rules. The statue of justice is a blind woman with a scale and hence no preferential treatment be given to Seniors. It offends Constitutional guarantee of equality under Article 14. The Senior Lawyers are trying to create a class within a class.

The Hon’ble Court held that Senior Lawyers are a creation of statute vide Section 16 of the Advocates Act. They wearing the dress of Queens Counsel is a long standing practice. Hence there is no violation of Article 14 and the classification is according to law.

Recently the dress code was again agitated before our High Court. According to the petitioner dress code is a Colonial hangover and it is against the climatic conditions of Kerala. The Hon’ble Court adopted the reasoning of Allahabad High Court supra. It also quoted Satish Kumar Sharma v. Bar Council of H.P.(2001 (1) KLT Online 1005 (SC) = (2001) 2 SCC 365):

“The profession of law is called a noble profession. It does not remain noble merely by calling it as such, unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted. An institution cannot survive on its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity.”

The Hon’ble Court held that “providing a dress code for those practising in various courts can only be termed as a reasonable restriction and cannot be termed as either arbitrary or unreasonable.... Apart from identity the dress worn by the Advocate clearly induces the seriousness of purpose and a sense of decorum which are highly necessary and conducive for the dispensation of justice.”

The present dress code is a time tested attire and the colours black and white is adopted by almost all the countries of the world. The dress provide us a special identity and dignity. It amalgamates us to the rest of the community of lawyers, worldwide.

Some Thoughts on Appeals vis-à-vis High Court Act & Rules

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

I was leisurely examining the intricacies of Court Fees and Suits Valuation Act, 1959 (Kerala) once again, thanks to the astuteness of the registry. It turned out to be a fruitful exercise. The thought came to me: Are not some of the provisions of High Court Act and Rules obsolete?

Section 5: Appeal from judgment or order of Single Judge:

An appeal shall lie to a Bench of two Judges from

(i)    a judgment or order of a Single Judge in the exercise of original jurisdiction or

(ii)   a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court

(iii)   -------------

Rule 43: Appeals under Section 5 of the High Court Act:

(1) When an appeal against an appellate decree or order has been disposed of by Single
Judge an application for a declaration that the case is a fit one for further appeal under Section 5 of the Kerala High Court Act, 1959, may be made orally immediately after the judgment is delivered.

(2) If no oral application is made as aforesaid a written application may be made within 15 days from the date of the judgment. Such application shall be accompanied by a copy of the judgment.

(3) The application shall be posted before the Judge who passed the judgment and he may, after hearing the applicant or his Advocate, either allow or dismiss the application.

(4) Where the application is granted, the applicant shall present the appeal together with a copy of the order granting the application within 30 days from the date of the order.

(5) The provisions of Orders XLI and XLIA of the Code shall apply, as far as may be, to appeals presented under this rule.

(6) The provisions of Sections 5 and 12 of the Limitation Act, 1963, shall apply to applications and appeals under this rule.

Section 100A: No further appeal in certain cases:

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge (Substituted by Act 22 of 2002 w.e.f., 01.07.2002).

2006 (4) KLT 405 (F.B.) held that Section 100A of Code of Civil Procedure bars an appeal
to a Division Bench provided under S.5(ii) of the Kerala High Court Act against a judgment of single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of the original jurisdiction by a subordinate court and that such appeals filed after 01.07.2002 are not maintainable.

2010 (4) KLT 473 (SC) declared the law on the following terms in another background: It may be noted that there seems to be some apparent contradiction in S.100A as amended in 2002. While in one part of S.100A it is stated “where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court”, in the following part it is stated “no further appeal shall lie from the judgment and decree of such Single Judge”. Thus while one part of S.100A refers to an order, which to our mind would include even an interlocutory order, the later part of the Section mentions judgment and decree. We are of the opinion that the apparent contradiction in S.100A as amended in 2002 was only due to bad drafting, and not much can be made out of it once we understand the purpose of S.100A.

https://legal-dictionary.thefreedictionary.com/obsoletetells us that “A writtenlawmayindeedbecomeobsoletewhentheobjectto whichitwasintendedto apply,or theoccasionforwhichit wasenacted,no longerexists.“ Itmustbe a verystrongcase,”saysChiefJusticeTilghman,“tojustifythecourtin deciding,thatan actstandingon thestatutebook,unrepealed,is obsoleteandinvalid.I willnotsaythatsuchcasemaynotexist-- wheretherehasbeena non-userfora greatnumberof years;where,froma changeof timesandmanners,an ancientsleepingstatutewoulddo greatmischief,if suddenlybroughtintoaction;wherea long,practiceinconsistentwithit hasprevailed,and,specially,wherefromotherandlatterstatutesit mightbe inferredthatin theapprehensionof thelegislature,theoldonewasnotin force.”

https://www.livemint.com/Opinion/wvCA3H1ilcwjn6ZCmGTHLP/India-needs-a-National-Repeal-Law-Day.html.makes interesting reading: It is a custom for the regional communities of our land to engage in fervent cleaning of their homes during culturally important occasions like the New Year, Eid, Diwali, Lohri or Onam. Building on this tradition, let us now pledge to clean the law books once a year as well, wherein the legislatures do the house cleaning! Since our “living” Constitution came into force on 26 November, it makes good sense to declare it the National Repeal Law Day. The observation of the day should encompass a convening of the lawmakers at the Centre, State Legislatures and municipalities to update, amend and annul obsolete laws and regulations.

Obsolete laws (living dead) create fertile legal thoughts, enhancing hunger of legal eagles. Please See 2016 (1) KLT 851 (SC)  Pankajakshi (Dead)Through L.Rs. and Ors. v. Chandrika.

Voila! Section 5(ii) High Court Act and Rule 43 dealing with appeals under Section 5 of the High Court Act obsolete. Should they be retained on the statute book?

Take a look around, there are other zombies lurking in law books - Including some in my beloved C.P.C. and its joint family assets!