LAW-BREAKERS GALORE

(T. G. John, Advocate, Trichur)

Law-breaking is the vogue of the day. Political aspirants dash their heads against each other; even minors whose rights are so jealously guarded by law threaten to despoil the very shrine from which emanate the beacons of their protection. Infants who will otherwise be playing with their marbles or busy with their satchels at their desk, follow the 'pied piper' of a politician out into the streets, there to join up a parabola of a political extravanganzaorgiastic dances, cat-calls and clarion calls inside temples of Justice where sits enshrined 'man's eternal quest and everlasting hope'. Are we retrograding to a state of nature?

In the conception of Plato in a state of nature War is the natural relation with the result every man is a wolf to every other man. On the other hand Hesiod dwells upon an age of peace in a state of nature and with him Virgil in his Eclogue makes Sybil prophesy the return of an unbroken era of peace. 'The stoics took the view that inside man there was always raging a conflict between bad impulses and right reason and Justice; and man always struggled in this torment to reach his level by an assertion of what he regarded as justice and right reason and this was so because Nature always tended to evolve the very best in man.' In this respect the machinery of law is running a gauntlet of flamboyant vituperations at the hands of the law-breakers; the urge of the hour is for cute, natural justice.

A resurgent generation fired with revolutionary ideologies with souring faith and shrivelling loyalty is on the march. In times like the present of disillusionment and doubt, where there is a tension between tradition and progress the idea of absolute or natural justice has an irresistible appeal to persons who are dissatisfied with the existing state of things. The search of mankind for absolute natural justice in an age-long search but a search which has always failed But this failure was inevitable; it was inherent in the search itself. This is because mankind's notions of justice in the different spheres of human activity and relationship have changed and go on changing under changing social, political and economic conditions. In Russia during the first revolutionary period the only written laws to be applied were the decrees of the Soviet Government. If there was no Soviet law ruling the issue then the 'Socialist consciousness of justice had to decide.' During the second revolution the judge was no doubt given freedom of decision which was regarded as characteristic of revolutionary law, but law was understood as serving the needs of revolutionary development as opposed to formal and conservative legality. Revolutionary legality and revolutionary consciousness of justice were deemed to be the correct application of the law in the sense intended by the revolutionary state. According to the socialist legal theory all desirable evolution of the economic life must find its expression in the laws. In course of time, however, the Soviet Civil Code was enacted to give some amount of certainty to law. (vide Schlesinger's Soviet Legal Theory).

Is there any likelihood, one may ask with a sense of frustration, of this conflict ever ceasing? Will the quest for natural and absolute justice be ever successful? In other words, will there be ever a time when justice according to law will be interchangeable with the conception of law according to justice? The answer depends not on legal theory or ratiocination but on human conduct and morality. So long as man is selfish, the conflict is bound to be there. "Individuals or small groups coveting power or wealth use the organization of a political community for their purpose. Modern dictators use the masses for their ambitions and disguise it under the name of some collective idea, be it State, nation or race." (Raja Mannar, C. J. Diamond Jubilee Celebrations of the Madras Advocate's Association, 1949).

x x x x x x x

x x x x x x x

"The citizens of the Republic have given great powers to the Judiciary. We recognize that great powers necessarily involve grave responsibilities, but we are not dismayed. It has always been the proud tradition of this Court to stand between the subject and any encroachment on his liberty by the executive or any other authority however high. It is a great tradition which we have inherited and we believe that this Court will be worthy of this inheritance. Amidst the strident clamour of political strife and the tumult of the clash of the conflicting classes we must remain impartial. The court is no respecter of persons and its endeavour must be to ensure that above this clamour and tumult the strong calm voice of justice shall always be heard. Fiat Justitia ruat coelum".

(A.I.R. 1950 Calcutta 274.-Sen, K. C Chunder & Lahiri, J. Special Bench).

Whether the decisions of the Madras High Court prior to

States Reorganisation binding on the lower Courts in Malabar District

(P. G. Rajagopalan, B. Sc B. L,Tellichery)

It has been assumed by many lawyers that the decisions of the Madras High Court are not binding on the lower courts in Malabar District after the formation of Kerala State. The question is not without difficulty. It is submitted that the decisions of the Madras High Court prior to 1-11-1956 are binding on the lower courts though it may not be binding on the Kerala High Court.

The Preamble of the States Reorganization Act, 1956 which created the High Court of Kerala says that it is an Act to provide for the reorganisation of the States in India. It is clear from this preamble that it is not an enactment intended to change the laws in the State. S. 119 of the Act says 'The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within that State immediately before the appointed day". The words used are 'any law' and as such it includes Judge-made law or common law. It may be contended that law means statutory law only. But that does not seem to be the intention of the Legislature in view of the preamble stated above. If the view statutory law alone is taken then many customary laws and common law of this State will not be enforceable by the courts. The observation of Bhimsankaram, J. in A. I. R. 1955 Andh 87 F. B. may be pertinently quoted: "Should the mere constitution of a new High Court make any difference to Judee-made law that ought to prevail here? Now for instance it is well known that quite a large body of the rules of Hindu law as administered in India is Judge-made law. Why should we rouse apprehension in the minds of citizen of Andhra State that three rules so long held to obtain in this part of India are subject to reconsideration and possibly to reversal, all because a new High Court has been ushered into existence''. In the same case Subba Rao, C. J. (now Judge of Supreme Court) had also observed in a similar strain: "If Andhra High Court is free to start from scratch, it would be introducing confusion in the law of the land and disturbing titles acquired. It would also become a fruitful source of litigation."

It has been held by Andhra High Court that subordinate courts are bound by decisions of Madras High Court prior to 5—7—1954 (the date of inauguration of the Andhra High Court). "The subordinate courts in the State are primarily bound to follow the decisions of this court. If there are no decisions of this court directly governing the case, they ought to follow the decisions of Madras High Court as they have been previously doing in preference to the decisions of other High Courts. It is only when there are no decisions of this court or the Madras High Court dealing with the point, they are free to follow the decisions of other High Courts". (A.I.R. 1955 Andh. 33). There is no reason why this principle cannot be applied to the courts in Malabar.

It may be even contended that the decisions are binding on the Kerala High Court so far as administration of law in Malabar District is concerned, unless over-ruled or dissented by a competent bench of the Kerala High Court. It has been held that Andhra High Court and Madras High Court prior to 5—7—1954 are courts of co-ordinate jurisdiction; even if the two High Courts are deemed to be not courts of co-ordinate jurisdiction the Andhra High Court shall follow the Madras decisions on the principle of stare decis in the same manner that Madras High Court follows its decisions and subject to the same limitation. (A.I.R. 1955 Andh. 87 F. B.). In this same decision Subba Rao, C. J. after quoting Lord Eldon ("It is better that the law should be certain than that every judge shall speculate upon improvements in it") observes that 'there is no reason why the aforesaid salutary principle should not be followed in the case of decisions delivered by the Madras High Court when Andhra area was under its jurisdiction'. 1 he observation is true in the case of Kerala High Court also.

Chagla, C.J. in A.I.R. 1955 Bom. 1. (F.B.) has held that even obiter observations of the Privy Council are binding on the Bombay High Court. "It is true that this opinion of the Privy Council is obiter but so long as the Supreme Court does not take a different view taken by the Privy Council, the decisions of the Privy Council are still binding upon us, what is binding is not merely the point actually decided but an opinion expressed after careful consideration of all the arguments and which is deliberately and advisedly given". It has been held under Art. 372 (I) of the Constitution (similar to S. 119 of States Reorganization Act) even obiter dicta of the privy Council must be treated as bind­ing on the Indian Courts and the position is same even after advent of the Constitution in the absence of a contrary decision by the Supreme Court (A.I.R. 1953 Orissa 117 S. B.). On the anolagy of these decisions it can be held that the deci­sions of Madras High Court are at least binding on the subordinate courts in Malabar District.

In 1953 K.L.T. 430 = A.I.R. 1953 T- C. 283 D. B. the T-C High Court has held that the decisions of the pre-constitutional High Courts of Travancore or Cochin are not binding upon the post-constitutional High Court of Travancore-Cochin. This decision is distinguishable. When a constitution ushers entirely a new regime it may be reasonable for a High Court to consider it as a new High Court and the pre-constitutional High Court as an entirely different one. Both the Kerala High Court and the Madras High Court prior to States Reorganisation are High Courts under one and the same Constitution viz., Constitution of India. The Madras High Court prior to the States reorganisation and the Kerala High Court must be considered as courts of co-ordinate jurisdiction. The observation of Subba Rao, C. J. can be applied in the case of Kerala High Court also. "It would not be inappropriate to call a successor court as a court of co-ordinate jurisdiction with its predecessor if their jurisdiction at the point of time they exercised it are similar to or co-extensive with each other". Rutledge. C.J of Rangoon High Court had laid down the test of co-ordinate jurisdiction, ie, "Whether the two are of equal rank and status or of equal authority and exercise similar jurisdiction?" Applying this test it is easy to hold that the two courts are of equal rank and status and exercised similar jurisdiction and as such they are courts of co-ordinate jurisdiction.

Taking all these, views into consideration it can be safely assumed that the decisions of Madras High Court prior to 1—11—1956 are binding upon the I wer courts in Malabar District unless overruled or dissented by a competent Bench of the Kerala High Court.

THE KERALA AGRICULTURISTS DEBT RLLIEF ACT

XXXI OF 1958 -- ITS DEFECTS

(K S. Nambiar, Advocate, Trichur)

The Kerala Agriculturists Debt Relief Act 31 of 1958 (hereafter called as Act 31 of 1958) though more comprehensive and detailed than the T-C Indebted Agriculturists Relief Act 1956 and has conferred more substantial reliefs to the Agriculturist debtors than its Travancore-Cochin counter-part through its provi­sions relating to (1) The settlement of the liabilities of the Agriculturist who is unable to pay his debts under its provisions through the intervention of the Court, (2) Usufructuary mortgages, (3) Setting aside of sales of immovable properties in certain cases and etc., suffers from certain defects which have to be cured through appropriate amendments. In an Act like Act 31 of 58, where the legislature has to confer maximum benefit on the agriculturist debtor and also to protect the rights of the debtors against rich Agriculturists and to see that some class of debtors and debts should be kept out of the purview of the Act in the interest of justice and general economy of the State, there is no wonder if some defects are found. The main scope of this article is to point out some of those defects and suggest amend­ments wherever possible.

One of the most important definitions in the Act 31 of 58 is that of the word 'debt'. S. 2 (c) defines the word debt as follows:-

"Debt means any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act, whether payable under a contract or under a decree or order of any Court, or otherwise, and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists (Repayment of Debts) Act 1955 or the Travancore-Cochin Indebted Agriculturists Relief Act 1956, but does not include (i)any sum payable to the State or the Central Government or to any local Authority....................................(vi) any debt which represents the price of goods purchased for purpose of trade:...................................."Thus S. 2 (c) defines debt and at the same time takes away certain liabilities out of the definition. But it includes any debt or balance of debt at the commencement of the Act under the corresponding Madras and Travancore-Cochin Acts. This provision of "inclusion" is unnecessary and will introduce contradictions. The use of the words "any liability payable under a contract or under a decree or order of any Court" are by themselves more than sufficient to take in all concei­vable debts. In the face of the definite language used in the main part of the definition there is no scope for entertaining any doubt as to whether some of the debts will not come within the purview of the definition. Inclusion of debts under the Madras and Travancore-Cochin Acts will only help to introduce contradiction in the same definition. S. i (c) definitely excludes several liabilities are from the purview of the Act. Some of those liabilities not so excluded under the Travancore-Cochin Act and are debts under that Act. For example S. 2 (c) excludes any debt which represents the price of goods purchased for the purpose of trade from the definition of debt while the Travan­core-Cochin Act does not contain such exclusion, and under that Act any debt which represents the price of goods purchased for the purpose of trade is a debt. So we reach at the absurd position that debt which represents the price of goods purchased for purpose of trade is specifically excluded by the provision of "exclusion" in S. 2 (c) from debt and at the same time the provision of "inclusion" in the same sub-clause that is words "and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists (Repayment of Debts) Act, 1955, or the Travancore-Cochin Indebted Agriculturists Relief Act. 1956" in S. 2 (c) includes such debt impliedly within the Category of debts under the Act 31 of 1958 The same is the case with some other liabilities also.

It might be, that it was anxiety of the legislature to see that all those who have been already benefited by the earlier enactments should not be deprived of those benefits by the coming into force of the Act 31 of 5 and at the same time they should get all the benefits of the new Act also and certain liabilities should not come within the category of debt, that was responsible for the introduction of the contradictory provisions in the same definition. Amendment can be effected by bringing the definition of the word debt in the Act 31 of 58 on the same line as that of the word debt in the Travancore-Cochin and Madras Acts by deleting necessary clauses from the provision of "exclusion" contained in S. 2(c) or by deleting provision of "inclusion" and allowing the provision of ''exclusion" to remain as it is.

Sec. 3, sub-sec. (1) of the Act 31 of 58 bars making of applications for the execution of a decree in respect of a debt against any agriculturist in any Court before the expiry of six months from the commencement of this Act. The Act does not make it clear as to what should be done with respect to such application pending at the commencement of the Act till the expiry of six months period. Under the provisions of S. 4 of the Act the decree debt can be paid by 17 equal half yearly installments; the first installment being payable before the expiry of a period of six months from the commencement of this Act. Thus the Court will not be in a position to proceed with the execution application before the expiry of six months period because under the provisions of the Act execution can be taken against the agriculturist with respect to a debt only if the first installment has not been paid before the expiry of the six months period. So practically there is a stay of such execution though there is no staying provision in the Act. To make the position more clear and to avoid long adjournment of execution application it will be better to add a staying provision to S 3, sub-sec (1) of the Act. The proposed amendment of the sub-section is as follows:

 "No application for the execution of a decree............from the commence­ment of this Act and no such application for execution pending at the commence­ment of this Act, shall be proceeded with beforethe expiry of such period, (underlined portion is added to the original clause).

Sec. 3, sub-section (3) is not happily worded. One interpretation of the Section (call it as first interpretation) is that if a suit is filed for the recovery of a debt before the expiry of six months period or after the Agriculturist has deposited in Court such installment of debt specified in the Act and during the period when he is entitled to pay by installments under the Act, the defendant will get his costs from the Plaintiff and the Plaintiff will have to bear his own costs except in cases where the period of limitation prescribed for enforcing the claim will expire before the expiry of six months period. Words "except in case where the claim would have been barred by limitation had no such suit been filed" appearing in the sub-sec may also lead to another extreme interpretation (call it as second interpretation) to the effect that only such suits filed on the last day of the periodof limitation are taken out of the mischief of the sub-section. Let us take the case of a promissory note executed on 18th of August 1955. If we go by the second interpretation if a suit is filed on the 17th of August 1958 it will come within the mischief of the sub-section. So every creditor will have to wait for the last day of limitation and if unfortunately he fails to file the suit on that day he loses the claim. Though it will be found under the Rules of interpretation relating to statutes the first interpretation is the correct and reasonable one it will be better to amend the sub-section so that the first interpretation may prevail over the other in unequivocal terms. Thus Section 3, sub-section (2) may be amended as follows:- "Where a creditor.....................except in case where the claims would have been barred by limitation had no such suit been filed before the expiry of six months from the commencement of this Act. ("Underlined portion added to the sub-section as it stands now).

It is provided in Section 4 of the Act for the payment of debts by installments. The mode of payment is set forth in Section 4, sub-section (2). The wording of the sub-section is not happy and it will lead to interpretation which might not have been the reflection of the intention of the legislature. Section 4, sub-section (2) reads thus: "If any debt is replayed in seventeen equal half-yearly installments together with interest accrued due on the principal debt outstanding at the commencement of this Act till the payment of each installment at the rate of 5% per annum or the contract date whichever is less................" From the sub-section it will be seen that the rate of interest has been scaled down to be only from the date of the commencement of the Act; with respect to interest till the date of the Act, the contract rate will prevail, because the use of the words "any debt is replayed in seventeen equal half-yearly installments together with interest" suggests that the whole of the debt has to be paid along with interest on the principal debt till the payment of each installment at 5% & the debt itself according to the definition in the Act is the whole amount payable under a contract or under the decree or order of any Court, which includes interest at the contract rate or the rate mentioned in the decree till such commencement. The word debt covers the whole liability till the commencement of the Act and the question of interest at 5% arises only from that date. The subsection has to be amended so as to give the full benefit of 5% interest to the Agriculturist. The use of the word "principal debt" in the sub-section is not correct. The word debt has to be deleted from the words "principal debt" to convey real meaning to the sub-section.

Section 6, sub-section (1) lays down that when a debt refers to in Section 4 is a decree amount paid by installments under Section 4 will be appropriated first towards costs, and then to interests and then to the principal. This sub-section is of no meaning in the face of the definite language in S. 4. Under that Section any debt Can be replayed by installments and decree debt also is included in the world debt. So there need not be any separate provision for decrees and a particular mode of appropriation thereto. The whole of the sub-section may be deleted being unnecessary for the purpose of this Act. About Section 6, sub-section (2) some comments on the clumsy wording of the sub-section have already appeared in the columns of K. L. T. That sub-section has to be suitably amended.

Section 11 sub-section (7) is an exproprietory legislation. Under that sub-section a mortgagee auction purchaser of the property mortgaged will be deprived of the balance of the mortgage amount if the property bought by him in the Court sale does not cover the whole amount under the mortgage decree. Such balance of mortgage amount is an interest in property with request to the mortgagee and the deprivation of it without compensation is against the provisions of the constitution. So the whole of the sub-section has to be deleted because it offends the provisions of the constitution.

Medical Jurisprudence

(M. Marcus M. L., Advocate, Kottayam)

''Strike not thoughtlessly a nest of wasps

If you strike strike hard......"

Gross on Investigations

The use of scientific knowledge enlisted in legal proceedings is of more frequency and importance in criminal trials. Medical evidence figures a prominent part in them. Evidence of this type is technically called "expertise".

Criminal justice is concerned mainly with the protection of the innocent and punishment of the guilty. The use of Forensic Medicine enables the judge to arrive at an impartial decision in criminal trials. Dr. Taylor defines medical jurisprudence as the application of medical knowledge for the purpose of law. In Hammurabi’s code there was provision made for calling in medical expert to give opinion regarding the cause of death, or serious injury by poisoning or otherwise, so that justice may be rendered between man and man. While appreciating the importance of the subject under consideration we cannot forget the fact there was a sense of animosity between the medical man and lawyers which snapped away the sincerity in reaching the truth. Medical men and the lawyers when tried to test their strength of knowledge this biased view colored their activities in the court. Medical man as opined by best "spoke from his castle" and the lawyer derided him. We have to see the consequences of such attitude. The lawyer and the medical expert might be drawn in the spirit of acrimonious dispute while the accused at the dock, pale and panting might feel that his cause is rather derlicted. The judge might feel annoyed or at least diverted from the real flow of things. This circumstance is the direct result of lack of information touching medical jurisprudence by lawyers. The different nature and feature of injuries have got certain nominated names in the field of Forensic medicine such as incised, lacerated, gunshot wounds and contusions. The cause for each of these injuries are normally different though in some cases one injury may simulate another which is a whirlpool of controversy between the medical men and the lawyers. For example a blow with a blunt weapon on the victim usually does not cause an incised wound but when such a blow is inflicted on the victim where the skin lies close to the bone it may produce injuries resembling incised wounds which feature might give the police the opportunity to plant a knife in evidence and cause perverted judgment to be made resulting in the conviction of the accused for graver a offence committed with sharp weapon. Human body subjected to external force resulting in injuries might show a peculiar coloration near the injury which color is known in medical juris­prudence as Ecchymosed. This occurs only prior to death while after death coloration appears on the dependant portion of the dead body which is called Hypostasis. This Hypostasis indicates the situation of the dead body. 4 discreet lawyers would make proper use of these signs to throw light on the question whether the injuries were antimortem or postmortem. Again the situation of the dead body ascertained from Hypostasis should make it clear whether the death was suicidal, or homicidal. Even this test is affected by scientific developments. Joan M. Ross in his "Post-Mortem Appearances" Vth edition Page 4 dealing with Post-Mortem stains observes "It is well to note that the body which was laid in a refrigerator may show an almost life-like pink flush". This might even give the police to charge the accused of having committed cold blooded murder in a case where the accused chanced to be near a dead body subjected to refrigeration by some other person after criminal homicide by such person Hudson says "there are many ways to die but there is one way to be born". We are concerned with the cause of death in Homicide.

The effect of Forensic Medicine is more telling in case of circumstantial evidence. Wills on "circumstantial evidence" mentions a case in which the accused was charged with murder of the deceased by throttling on the ground that there were nail marks on the neck of the deceased. The case rested on circumstantial evidence alone. The defence counsel put up the plea that the deceased was subject to Epileptic fits and it was urged that during the course of epileptic seizure the deceased might have involuntarily grappled with his neck causing his own nail marks and his death by strangulation. The accused was acquitted. One can feel the necessity of knowledge in forensic medicine by a lawyer in such cases.

The average law student coming out of the University at present is totally ignorant of medical jurisprudence and it is not his fault for the reason that it is not taught in the law Colleges. Coming to the session’s trial we find often the loquacious defence counsel assuming stifled silence when he confronts the medical witness. He is interested in putting questions whether a particular injury might have been caused in the mode remotely imagined by him but he carefully avoids spelling out the nomenclature of injuries deposed to by the medical witness. This situation gives added protection to a false medical witness. The young lawyer hopes much to conduct a criminal case and he accepts with avidity a crown defense and with his ignorance of medical jurisprudence you can imagine how far a medical witness could be properly examined by him.

To conclude I would most unhesitatingly state after my most anxious consideration that elementary principles of Forensic Medicine should be taught in Law Colleges as a compulsory subject, since in cases of homicide the fate of the accused or the claim of penal justice depends upon whether the death is homicidal, suicidal or accidental. I may not refrain from saying that international law to the vast majority of lawyer’s figures as "caviare to the general''.

THE 17th AMENDMENT AND LAND LEGISLATION

IMPLICATIONS OF THE GOLAK NATH JUDGMENT (S.C.)

(C. S. Subramonia Iyer, Advocate, Madras)

The Supreme Court of India in Golak Nath v. State of Pun jab (1967 S, C. J. 506) declared that the 17th Amendment is void under Article 13 of the Constitution. The 17th Amendment has taken in all the provisions of Article 31A and B with amendments and it must be presumed that with the striking down of the 17th Amendment, all previous amendments of fundamental rights have also been declared void according to the interpretation of Article 13 (2) as the term 'Law' includes Constituent Law also.

The Supreme Court then considered whether retrospective operation should be given to the judgment. The principle of prospective over-ruling was evolved by the Supreme Court in order not to unsettle past transactions as giving retrospective effect to the judgment will create chaos and unsettle the conditions of our country. It at the same time felt it as its duty to prevent fundamental rights being destroyed and the country gradually and imperceptibly pass under a totalitarian rule. Therefore it laid down that the judgment should be strictly applicable to future transactions in order to protect fundamental rights and liberty. So they felt the necessity to evolve some doctrine which has roots in reason and precedents so that the past may be preserved and the future protected (page 508 SC.)

Chief Justice Subba Rao then quotes Carfield "a Court should recognize a duty to announce a new and better rule for future transactions whenever the Court has reached the conviction that an old rule (as established by precedents) is unsound even though feeling compelled by stare decis to apply the old and condemned rule to the instant case and to transactions which have already taken place." Justice Cardozo said thus "The Blackstonian rule is out of tune with the life about us. We apply to this case because the repeal might work hardship to those who have trusted to its existence. We give notice however that any one trusting to it hereafter will do so at his peril." Chief Justice Subba Rao then says that the doctrine of prospective over-ruling confines the application of stare decis to past transactions (page 511 S.C. J). Thus the 17th Amendment and with it Articles 31 A, and B (which has also been declared to be void by Justice Hidayattullah (page 56) S C. J. (1967) in regard to 9th Schedule) cease to function after the judgment in the Golak Nath case, for transaction arising after the judgment in the Golak Nath Case. But 17th Amendment and Article 31 A may continue to function for transactions effected before the judgment as in the case of other amendments which have now been absorbed by the 17th Amendment.

All State legislations which have not come into force before the judgment in Golak Nath case have to be subjected to scrutiny of Articles 13 to 34 of Part III of the Constitution and all transactions of fixing fair rents, acquisition and compensation and ceilings etc. effected after the judgment in the Golak-Nath Case are subject to scrutiny of Courts with regard to conforming to standards enunciated in the original part III of the Constitution. As Chief Justice Subba Rao says in page 511 (S.C.J.) "Even if the party filing the appeal may not be benefitted by it, in similar appeals which he may file after the change in the law he will have the benefits.

As Justice Hidayattullah put it in page 568 (1S67 S.C.J) "That this court having now laid down that fundamental rights cannot be abridged or taken away by the exercise of amendatory process in Article 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and Article 13(2) in particular".

The absurdity of construing these observations of the Supreme Court without relating them to observations that" prospective over-ruling is intended to confine the doctrine of stare decis to condone past transactions, will be that fun­damental rights could be completely abrogated by the 17th Amendment (31 A etc.) in States, where State agrarian legislation has been enacted, while fundamental rights will be in full observance in States where such legislation has not been enacted. As justice Subba Rao says, the very object of introducing the doctrine of prospective over-ruling is to prevent the country from passing under Totaletarian Rule. Any construction of the Supreme Court judgment as allowing the amendment to the Constitution prior to the judgment to continue to function afterwards will be against the spirit of the judgment which wants to prevent the country from passing under Totaletarian Rule. Such a construction will also offend Article 14 of the Constitution as some States will have to be tolerated for not having fundamental rights and allowed to pass under Totaletarian Rule while others will have strictly to observe them. Amendments to fundamental rights have been declared to be ab initio void, but are tolerated only to protect past tran­sactions entered into on the faith of the earlier Supreme Court Judgment but which are otherwise unconstitutional.

There is another way of looking at this point which produces the same conclusion.

Under Article 394 of the Constitution, the fundamental rights commenced only on 26th January 1950. The result of the several amendments to it has been that in regard to Agrarian Reform some of these right (Article 14, 19, 31 etc.) have ceased to function until the judgment in the Golak Nath case when they restarted to function. Applying Article 13 on the day of the judgment of Golak Nath case as being the day of recommencement of those articles of the Constitution with regard to Agrarian Reform, all laws in force before the commencement of the Constitution that are inconsistent with fundamental rights will be void and in future no law abridging or abrogating fundamental rights will be valid. Taking this rule in conjunction with the doctrine of prospective over-ruling laid down by the Supreme Court, the 17th Amendment including Article 31 A and B, are void after the judgment in Golak Nath Case. The said amendments cannot continue to function after the judgment except in transaction completed before the judgment.

It can now be definitely understood that after the judgment in Golak Nath V. State of Punjab all transactions of fixing fair rent, acquiring and compen­sation of landed property and all impositions of ceiling on land holdings arising under any land legislation in States must conform to the standards laid down in Part III of the Constitution.