BEAUTY AND THE BEAST

(T. G. John, Advocate, Trichur)

Of all kinds of murders, that by poison is the most dreadful, as it takes a man unguarded and gives him no opportunity to defend himself, much more so when administered by the hand of one who is dear and near, whom one could least suspect and from whom one might naturally look for assistance and comfort. It is sneakish and heinous, it is always the hidden work of darkness; for poisoning is done in secret and alone. It is not like other murders because it cannot be proved with equal perspicuity.

One of the most notable British trials that ever took place at the Oxford Assizes was the trial of Mary Blandy on a charge of murdering her father by administering the deadly poison of white arsenic. To a modern devotee of fictional 'whodunits' or cheap six-penny thrillers, this would be just another 'poisoning case'. But judged from the standard of the times, the parricide was considered so sinister and horrid in itself, that it rocked and swept like a tornado over eighteenth century England. On Monday, the 2nd of March 1752, a bill of indictment was found by the grand inquest for the County of Oxford against Marv Blandy, spinster, for the murder of Francis Blandy, her father, late of the parish of Henley-upon-Thames, in the said county and on Tuesday, 3rd of March 1752, the Court being met, she was set to the bar for her trial............

Mary Blandy was the only daughter of Francis Blandy, a gentleman and a prosperous Attorney-at-law. Mary was beautiful and her vivacity, wit and good humour were such as to make her an immediate social success Mr Blandy business-like in all things, determined to spend a season with his family at Bath, then the great market-place for matrimonial bargains. At Bath, Francis Blandy began his hunt for a suitable son-in-law. The first to cross the thresh hold with matrimonial intent was a thriving young apothecary but Mr. Blandy quickly made it plain that Mary and her £. 10000 (dowry fixed by him and settled on her) were not to be had by any drug-compounding knave ‘who might make sheep's eyes at her', and the apothecary returned to, his gallipots forhealing of his bruised affections. Many eligible visitors entered the parlor of Mr. Blandy and shared his plentiful table but none got his approval. It was in the summer of 1746 that Mary met the man of her life Dining with her parent at Lord Mark's house, she met one Captain William Cranstoun who was one of the guests. The old father following up the aristocratic scent soon found to h joy that Captain Cranstoun was no less a person than the fifth son of a Scots peer, William, fifth Lord Cranstoun and his wife, Lady Jane Kerr eldest daughter of William, second marquis of Lothian, In the summer of 1747 the patrician Cranstoun duly declared his passion and from that rest infatuated of him It was thus while things were moving on to such a heavenly crescendo that Francis Blandy received a letter from Lord Mark which broke he amazing news that Mary's lover Cranstoun already had a wife and child living in Scotland! Things took a different turn from that moment. The: old man was incensed; Mary and Cranstoun were determined to become man and man at any cost and also to get the £ 10000 as soon as possible by removing the only obstacle in the way her father. They agreed upon a horrid deed. Meanwhile, Cranstoun left Henley to Scotland and from there sent her 'a small box contain-in g some white powder'. The fatal dose was administered by Mary Blandy in the gruel which her father used to take every day. Francis Blandy died from the effects of poisoning. Cranstoun escaped to France. On Monday the 6th of April 1752 Mary Blandy was executed at Oxford according to the sentence pronounced against her.

x x x x

From the point of view of the jurist, the trial of Mary Blandy is very significant. The summing up of the charge to the jury was done by Baron Legge (Heneage Legge (1703 - 1759). second son of William First Earl of Dartmouth, was called to the Bar, 1728, took silk in 1739 and was appointed one of the Barons of Exchequer in 1747.) who along with Sir Sydney Smythe presided over the trial. Baron Legge's charge to the jury is a classic in itself. It is a landmark in the history of the law of evidence because for the first time the overwhelming importance of circumstantial evidence was stressed judicially.

"...............In the present case which is to be made out by circumstances,

great part of the evidence must rest upon presumption, in which the law makes a distinction. A slight or probable presumption only has little or no weight, but a violent presumption amounts in law to full proof, that is, where circumstances speak so strongly that to suppose the contrary would be absurd. I mention this to you that you may fix your attention on the several circumstances that have been laid before you, and consider whether you can collect from them such a presumption as the law calls a violent presumption, and from which you must conclude the prisoner to be guilty. I would observe further that where that presumption necessarily arises from circumstances, they are more convincing and satisfactory than any other kind of evidence because facts cannot lie

About two centuries enmeshed in legal marvels and perplexities have rolled by; still our temples of justice reverberate with the resonant words of Baron Legge-"Witnesses may lie; but circumstances cannot lie".

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.

THE KERALA AGRICULTURISTS DEBT RELIEF ACT
(ACT 31 OF 1958)

(By K. S. Rajamony, M. A., B. L., Advocate, Trivandrum.)

The Kerala Agriculturists Debt Relief Act (31 of 1958) bears all the marks of a hasty and ill-drafted piece of legislation. The rationale behind many of the provisions is quite unintelligible and most of the sections are so clumsily worded that it is difficult to decipher the real intention of the legislature in enacting them. The framers of the Act ought to have realized that defective drafting leads to serious repercussions and hampers administration of the law and is also likely to defeat the very purpose for which the Act is passed. Even a cursory glance at the provisions of the Act will show that the Act makes serious inroads into the sanctity of contracts and brushes aside with impunity many of the existing laws which have stood the test of time like, The Civil Procedure Code, Limitation Act, Transfer of Property Act etc. Very serious rights of the citizens are affected and no proper safeguards are made to prevent inequity and injustice.

The Act is too drastic against creditors and highly partisan towards debts ors. The preamble says that the object is to give relief to indebted agriculturists. One would have expected a civilized Government to provide all credit facilities to the agriculturist to enable him to repay his debts and make reasonable restrictions on the creditors to prevent harassment and undue pressure. But the effect of the present Act is that it makes a virtue of indebtedness and perpetuates agricultural indebtedness for all time by tempting him not to repay his debts. The normal law of the land itself allows adequate scope for Courts to exercise their discretion to grant time for payment in really hard cases under the provisions of the C.P.C. and the severity of the Act comes in an unreal context and is completely out of tune with prevailing conditions. The framers of the Act have not certainly taken a balanced view of the nature of the rights infringed, the reasonableness of the restrictions imposed and the extent and urgency of the evil sought to be remedied.

The restriction imposed on the creditor spreading over a period of 8% years is unreasonable especially when no clear case is made out for the necessity of such an extraordinary provision. The period is much too long. The Madras Act 1 of 1955 is more reasonable. S. 4 of that Act stipulates that within four months of the commencement of the Act, 1/8 of the principal amount outstand­ing and all interest up to that date or 1/4 of the total amount outstanding whichever is less must be paid, and the balance of the debt to be paid in three further equal annual instalments. The long period of 8%years really harms the ryot and makes his position worse as rural credit gets rudely shaken thereby Creditors will not be certainly tempted to lend further. There are many agriculturists who prosper on credit facilities. The present Act saps that source and in the absence of the State not providing new and enlarged credit facilities, the purpose of the Act gets defeated. The inclusion of Banks and chit Funds ir the Scheme of the Act will affect the vitals of rural credit structure.

All debts existing on the date of commencement of the Act come under the purview of the Act. This is also unreasonable. The Travancore Debt Relief Act which came into force in 1116 stipulated that only debts which were contracted before, 1112 came within the purview of the Act. Some such provision ought to have been made in the present Act.

The Act does not give any protection to comparatively poor creditors who are agriculturists. While money due to the State or Co-operative Societies or by way of maintenance or breach of trust or wages are excepted, there is nothing to safeguard the moneys due to the poor agriculturists who may require those sums for their economy.

Further the Act makes no attempt at fixing the lower limits o exempted debts. Thus even in respect of a five-rupees debt, an agriculturist can, if he so chooses, keep the creditor harassed for 8^1/2 years. A provision that the Act does not apply to debts less than Rs. 100/- may be reasonable

The provision relating to defaulting debtors is also unreasonable. Every time default is made in paying the installments under the Act, the creditor will have to take out execution against the debtor and can realise only the installments in arrears. This procedure involves needless expense for the creditor and may not be worth the trouble at all if the installment to be realised is a small amount. A provision that a debtor who consecutively defaults for three installments would forfeit the benefits of the Act would have been salutary.

Explanation 1 to S. 3 of the Act enacts another inequitable provision. It says that when an agriculturist and a non-agriculturist are jointly liable under a debt, the bar of execution application extends to the non-agriculturist as well. A wealthy non-agriculturist can escape liability for the period protected under the Act if he manages to procure one agriculturist also to borrow along with him. This puts such a non-agriculturist at an advantage over another of the same category who has not the privilege to be a joint debtor with an agriculturist.

Apart from all these drawbacks, defective drafting of some of the provisions has resulted in anomalies, contradictions and conundrums. For instance, S. 2 gives the definition of 'agriculturist'. Agriculturist means a person who has an interest, other than as a simple mortgagee, in any agricultural or horticultural land. It is not clear what sort of interest a man must have in land to be an agriculturist. If it is only any interest' that is required persons who have absolutely nothing to do with agriculture or horticulture come within the definition.

While terms like 'Family', 'Court' and 'Pay' are defined, there is no definition of the term 'agricultural or horticultural land'. The Madras Act has made it clear that agricultural or horticultural land does not include land appurtenant to a residential building.

As the definition stands at present, agricultural land need not be in Kerala. On the other hand it can be anywhere in this planet. This is a serious lacuna.

Another glaring instance of careless drafting can be seen in sub-clause (xi) of clause (c) of Section 2. The main clause says that debts exceeding Rupees one thousand five hundred due to a bank borrowed under a single transaction do not come within the definition of 'Debt'. The proviso says that debts exceeding Rs. 1,500/- due to a bank borrowed under a single transaction can be repaid in installments as provided by clause (2) of S. 4 of the Act. The proviso really nullifies the main clause except to a slight extent that is provisions modifying contract regarding interest.

To quote another instance, clause (2) of S. 6 runs as follows: --''The provisions of S. 4 shall, for purposes of execution be deemed to be a subsequent order of court within the meaning......" It is difficult to understand how the 'provisions' of a section can be deemed to be a 'subsequent order'. It ought to have been, "an order passed under the provisions of S. 4. shall be deemed to be a subsequent order .....". There are similar defects in the wording of most of the sections. Clarity of expression is conspicuous by its absence. Hasty and thoughtless legislation has become the order of the day and this statute is only an example. Some defects were pointed out when Act 3 of 1956 was passed. Curiously enough, all those defects are repeated in the present Act. It is unfortunate that the legislature shows no anxiety to profit by experience and remedy defects pointed out to them. A simple Act has been complicated and confused by superfluous verbiage and unintelligent draftsmanship. On the whole this Act ill-adorns the statute-book

A NOTE ON THE DISSENTING JUDGMENT OF THE

SUPREME COURT RELATING TO THE

KERALA EDUCATION BILL

(T. P. Ittoop (Thachil), Advocate, Ernakulam)

THE majority judgment as well as the dissenting note of the Supreme Court on the subject is illuminating enough to understand the scope and amplitude of Art.30(1) of the Constitution of India. But it is most humbly submitted that the dissenting opinion requires reconsideration on the grounds to be stated hereunder.

The difference of opinion centers round the interpretation of Art. 30 (I) of the Constitution, which confers on the minorities the right to establish and administer educational institutions of their choice, while the majority decision has interpreted the article to mean that the minorities whether based on religion or language, have the right to establish and administer educational institutions of the same kind and character as those run by the state whether in discharge of its obligation to educate the children of the state or in discharge of the responsibility cast upon the state by Art.45 of the Constitution, the dissenting judgment has interpreted the educational institutions referred to in Art. 30 (1) as mainly religious institutions and other institutions of a different kind and character from those run by the state and intended to make the taught eligible for public service on higher studies. It is common ground that "the policy behind Art. 30 (1) is that the majority should not destroy or impair the rights of the minorities, religious or linguistic". In furtherance of this policy the Constitution has conferred certain fundamental rights on the minorities under Arts. 29 and 30 in the field of education in the state The statement that these articles belong to the same category as Articles 25 and 26 does not stand scrutiny. That it is not self-evident is clear from the manner in which they are enumerated in the Constitution. Though all of them find a place in Part III of the Constitution, it is seen that Articles 25 and 26 are enumerated under the heading 'Right to freedom of religion'. Articles 29 and 30 are grouped under a different heading 'cultural and educational rights'. The right to profess, practise and propagate any religion guaranteed by Art.25 necessarily implies the right to teach the tenets of that religion and consequently no special provision other than Art.26(1) of the Constitution which confers the right to establish and maintain institutions for religious purposes, is required for the establishment of religious educational institutions.

Further this is a right granted to all people in the state irrespective of majority or minority considerations. But cultural and educational rights conferred by Articles 29 and 30 are granted exclusively to minorities, religious or linguistic. Therefore assuming the educational institutions mentioned in Art. 30 (1) are mainly religious educational institutions the result will be the majority shall not have the right to establish religious educational institutions even though freedom to profess, practice and propagate any religion and the right to establish institutions for religious purposes are conferred on them also under Articles 25 and 26. There can be no doubt as to the absurdity of this position. The further question and the crucial question for determination is whether there is a right in the minorities to have the educational institutions referred to in Art. 30(1) recognized by the state. It is true that the obligation of the state with respect to this right is purely negative and the minorities are not entitled to call upon the state to do positive acts of commission in their favor. But then the state shall not build a barrier around the education field in the form of education code or otherwise and thus prevent the minorities from entering that field where they have a right to enter. Therefore the state should either remove the barrier or build it up without causing obstruction to the rights of the minorities under Art. 30 (1). The demand of the minorities for recognition by the state of their (minority) educational institutions arises as a conse­quence of a positive act of the state in this direction In acceding the demand for recognition the state is not doing a positive act in favour of the minorities but a positive act the state is bound to do to maintain statutes quo.

If the right of recognition is conceded it is said that recognition will have,to be accorded to religious institutions as well. This question will not arise if the educational institutions referred to in Art. 30 (I) are construed to be secular and not religious.

The next point to be considered is about the absence of a provision for 'recognition' in the Constitution. The framers of the Constitution were well aware of the existing system of education in the state under which educational institutions run without recognition are non-entities in the eye of law. Hence the right to run educational institutions carries with it the right of recognition without which the former right is illusory. The right granted is absolute so that if the intention was otherwise a proviso to the effect that such institutions shall not be entitled to recognition requires to be added. At the same time Art. 28(3) makes it clear that no person attending recognized institutions shall be required to attend religious instructions if any imparted in such institutions. Subject to this restriction all minorities religious or linguistic are given the fright to establish and administer educationsl institutions of their choice. The state is only recognizing this right when recognition is given to minority educational institutions

Lastly it is said that Art. 45 of the Constitution which provides for free and compulsory education by the state to all children below 14 years of age will become a dead letter if the above interpretation of Art. 30 (1) is to prevail. The Constitution itself takes note of three categories of secular educational institutions in the state viz., (i) recognized (ii) state aided and (iii) state owned. There is nothing in the Constitution to suggest that by the introduction of free and compulsory education recognised institutions should cease to function. Therefore the responsibility of the state in this direction ought to be discharged through recognised institutions as well by compensating the loss of fees to them if any. But then it is said that such a right is not granted under Art. 30 (2) of the Constitution It is so and the minorities do not claim it on that score. All recognized institutions whether run by the majority or the minority are entitled to be compensated for the assistance done by them to carry out the obligation of the state to impart free and compulsory education. The state cannot assume a right under the cover of Art. 45 to have recognised educational institutions maintained by the minority to fall in line with state owned and aided institutions unless the state is prepared to bear the expenditure thereof. Art. 45 does not authorize the state to put an end to the right of the minorities under Art.30(1) or in any way cause prejudice to that right. Since the majority has no fundamental right under the Constitution with regard to educational institutions they cannot rightly complain either of the higher rights if any the minority may have or the discrimination in state legislation on this behalf and intended to give effect to the fundamental rights of the minority. The Privy Council decision City of Winnipeg v. Loyen (1892) A. C. 445 cited in the dissenting judgment may be distinguished on the ground that denominational schools under S. 22 of the Manitoba Act 1870 and Recognised Educational Institutions under the Constitution of India with which we are concerned are not identical. In the Manitoba Act there is no provision like Art. 28 (3) which imposes a ban on recognised institutions not to require persons attending them to attend religious instructions if any imparted therein.