CRIMINALS: ARE THEY BORN OR MADE ?

(By M. Karunakaran Nambiar, Advocate, Cannanore)

The problem of criminals and criminality is as old as crime itself. From times immemorial philosophers, social thinkers, and reformers have expended much thought on the evils of criminality and reform of criminals. Despite all the researches and investigations of criminologists from Lombroso to Walter Reckless, of recent times, the basic problem of criminology, whether a criminal is -born or made has eluded a positive and clear answer. The recent rapid development of the science of psychiatry has given added impetus to the study of certain fundamental questions in criminology.

It is interesting to note that most of the philosophers of ancient times strongly believed in born criminals and they attempted to correlate physiognomy to habits of vice and crime. Solomon declared ''an evil heart altered the face". Aristotle believed in born criminals and more interesting still is the ancient edict which ruled that if two persons were suspected of crime the more deformed of them should be presumed guilty. A very unconscientiously presumption indeed! The Hindu science of Samudrika-lakshanam also emphasises the idea that outward physical expressions indicate inward disposition. Dr. Lombroso of Italy attempted to put this view of the ancients on a scientific basis. In the course of his experimental researches in 1866 he discovered various anomalies organic and psychic of the born delinquent and ultimately’ laid the foundations of criminal anthropology. Lombroso's conclusions that a criminal is a atavistic being who reproduced in his person the ferocious instincts of primitive humanity and of inferior animals raised a storm of bitter criticism all over Europe. Dr. Healy, Professor Manouvrier and a host of others objected to the theory that the presence of median occipital fosse and hypertrophy of the vermin in a person is indicative of criminal propensities.

Dr. Lombroso's reasoning was divorced of the influence of environment on .biological inheritance. The restatement of the Italian Doctor's theory by Sommer is significant. According to him there may not be born types but there might exist a born delinquent in whom the impelling forces drive him to crime when the opportunity affords.

According to the advocates of the theory of epilepsy, crime is a psychic disease. We have the very interesting story of the Italian soldier Misdea, who while serving in the army suddenly, attacked and killed his superior officer and ten other soldiers who tried to overpower him and then fell into a deep slumber and remembered nothing of the incident when he woke up. Modern psychologists also tell us that kleptomaniacs are persons obsessed by a feeling of inferiority complex and their thieving operations are only attempts to assert their individuality.

Several eminent criminologists have come to astounding conclusions in the course of their researches. Thus for instance, the Thermic Law of Delinquency enunciated by Quetelet stated that crimes against persons were numerous in hot countries while property crimes abound in cold regions.

Some professors have asserted that feeble-mindedness is the cause of crime. The British Royal Commission of 1907 defined feeble-mindedness as a mental deficiency consequent on the incomplete cerebral development of a person Several cases of feeble-minded youths have been discussed in ''Criminal Imbecile" by Goddard. The leading case is that of Fred Tronson an adult male who shot a woman for having refused to marry him. It was found that he had the mentality of a boy of nine. The shocking case that baffled all criminologists is the one told by Mr. Russel. A boy of ten and a girl of five years old were living together in the same house, the latter was missed one day, and after considerable search her body was found buried in a dung hill and shockingly mangled. Though at first the boy denied all knowledge on close interrogation he said that the girl used to foul herself in bed and so he did her to death.

The French school of criminologists differ from all these views and hold that criminal tendencies are the result of bad environment. They place too much of emphasis on the environmental conditions; though this view is plausible it is tripped up by the logical fallacy of post hoc, ergo propter hoc— 'After this, therefore because of this.'

The best answer to the problem would be to describe crime as the product of the Joint action of the innate and acquired characteristics of an individual with the existing environment of society. 

                                    ON MARUMAKKATHAYAM LAW OF GIFTS

(By K. E. Gopinath, Bsc, B. L. Advocate, Cannanore)

The Marumakkathayam Law relating to gifts is not uniform. The obvious reason being, that the people following Marumakkathayam customs were subjected to different governments and consequently became the topic of judicial interpretation by different High Courts. So much so, the Madras High Court which had jurisdiction over Malabar till recently, interpreted the law of gifts in a particular way in the light of the customs and usages followed by the Marumakkathayees of Malabar. Similarly, Cochin and Travancore High Courts gave effect to other consistent pronouncements in consonance with the existing customary practices and principles followed in the respective areas. But after a careful and critical examination of the topic in question, it will be evident that the difference in law is only factual’ and apparent. It so happened that the different High Courts gave judicial recognition of the different conception of the Maurumakkathayam way of life. With this background in view, let us examine how the law of gifts by a Marumakkathayee, have been evolved by the different High Courts.

The question for consideration is this. When a person governed by the Marumakkathayam law makes a gift of his properties to his wife and children in general, what is the nature and scope of the right thereby created in relation to the donees? In other words, who are the beneficiaries under the gift? Are they entitled as tenants-in-common? Or does it ensure to the benefit of the thavazhi constituted by the donees with the incidence of a starved property?

For example let us take the case of a father gifting his properties to his two sons and a daughter to be enjoyed in the female line. The Madras High Court as early as in Narayanan v. Kannan (7. Madras, 315.), construed the gift in such a way, that the donees were entitled to an absolute estate in the properties gifted, enabling them to hold it as tenants-in-common This may sound alarming because, prima facie, the decision cuts at the very root of the intention of the donor, who bad made explicitly clear that even the future generation was to have rights in the properties gifted. Naturallv when the very same question of construction of gift came up for consideration in Kunhachumma v. Kuttimammi Haji (76. Madras 201 F. B) Best and Subrahmanya Iyer, J. J. found it rather difficult to accept the view in 7 Madras 315 and so they referred the matter to a Full Bench so as to reconsider the view therein. The Full Bench after an elaborate enquiry held that under Marumakkathayam Law, joint tenancy or thavazhi enjoyment was the ordinary mode of enjoying the properties gifted and it was quite contrary to the spirit and notion of the Marumakkathayam way of life, to bold that the donees under the gift were to enjoy as -tenants-in-common. In support of this view an observation by the Judicial Committee in Soorjimonce Dossev. Mullic (6 M. I. A. 526) quoted below was strongly relied on by the F. B.

"In construction of a document executed by a Hindu due regard should be given to the ideas and notions of an ordinary Hindu and ordinary method of enjoying property".

This rule of construction propounded by the J. C. was straightaway applied in Amman Kutti v. Appu (22 Madras 322) and Palhumma v. Abdulhaji (31 Madras 228).

The very same question came up for closer scrutiny in Chakkara Kannan v. Kunhipoeker (39 Madras 317 F. B.) which is a landmark in the development of the law. Here the gift was by a father to his two sons and daughter. The case first came up befor Tayabji and Sankaran Nair, J. J. who later made an order of reference to a Full Bench. The point raised in the order of reference was whether the decision in 16 Madras 201 F. B. should be applied only in cases where the donees formed a separate thavazhi having a karanavan of its own. The four judges unanimously came to the conclusion that when a gift is made by a husband to his wife and all their children the presumption is that the donees enjoy it as a thavazhi property. They further held that there is no scope for such a presumption if the donees do not take within its fold all the members of that family. A careful persual of the judgment will make clear that adistinction in law was attempted to be drawn between cases where the donees constitute a separate thavazhi as such and where they do not consist of all the members of the thavazhi.

In the next case of Kundankutty v. Panku (32,1.0.107) the property were gifted to four sisters who were the only surviving members of the tarvad. Coutts Trotter, J. held that they were tenants-in-common on the ground that there was an express right of alienation conferred on the donees in the deed itself. But Kumaraswami Sastriar, J. came to the contrary conclusion. The learned judge held that there was no express power of alienation and consequently the presumption that the property became the tarvad property, has to be drawn. His Lordship even went to the extent of remarking that though reference to the issues of the donor is conspicuously absent in the deed, the presumption must be drawn whenever a Marumakkathayi makes a gift. In other words according to the learned judge, even in a case where the gift is expressed to be in favour of wife alone or children alone, the gift is to be construed as one for the benefit of the thavazhi with the incidence of a tarvad property. It is respectfully submitted that this is an extreme view of stating Marnmakkathayam Law on the subject. When a gift is purputted to be made by the husband to his wife alone excluding the issues alive, the only course in interpreting the deed is to confer the absolute estate to the wife alone and an importation of any presumption is unwarranted and repugnant to the intention of the donor. The decisions in Narasamma v. Kesu(1913 25 M.L J. 637) and Bhandari v, Bhandari (1915 31 LC. 854) are in support of this view.

The case of Thaihamma v. Thnkappa (59 L-W. 569) was a turning point in the march of law on the subject. Here the gift was purported to be given to one's wife and some of their children only. The law enunciated in Chahkra Kantian v. Kunhi Pocker, on the strength of the rule of construction laid down by the Privy Council, did not impress the judges who decided this case, During the course of the judgment, Sommayya and Yahalya Ali, JJ.reviewed the whole case law and observed:

"We cannot on these decisions say that when a property is gifted to the wife alone or to some of the children alone, there is the presumption that the donees take it with the incidence of a tarvad property. The presumption will arise only if the gift was in favour of the wife and all the children who by themselves form a thavazhi", and further stated:

"We have no hesitation in saying that the whole question must be reviewed when the question directly arises for consideration and is not covered by Section 48 of the Marumakkathayam Act. A reasonable solution is to hold that exception cases governed by Section 48 of the Act, there is no presumption that the donees do not get absolute right".

This decision had the effect of materially over-ruling Chahkara Kannan v. Kunhi Pocker. According to this decision the rule of construction formulated by the P. C, should be confined to cases where the donees take within its fold all the members of the tavazhi i.e. the wife and children and in the absence of the wife, all the children. Joined ownership and impartibility which were the characteristics of a Malabar tarvad has been put an end to by legislation and new ideas and notions regarding ownership and enjoyment of property in the west coast have come into existence displacing old and orthodox ideas and consequently the rule of construction previously propounded has to be applied with necessary modifications in the light of new changes.

The enactment of the Madras Marumakkathayam Act by this time would have found a lasting solution to the problem. Section 48 reads as:

"When a person bequests or makes a gift of any property...,.............in the name of his wife alone or his wife and one or more of his children by such wife together, such property shall unless a contrary intention appears from the will or the deed of gift..............., be taken as thavazhi properties by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line..................’’

The Act came into force on and after 1st August 1933. But deeds executed since the passing of the Act, alone are within the purview of the Section 48, because it has been held in Thathamma v. Thanhappa following the ruling in Knshnan v. Thala (1941 1 M.L J. 508) that the Act has no restrospective effect. So much so the law regarding the interpretation of gifts, executed before 1933 was still in the process of evolution.

Unfortunately, the very next decision dealing with the topic in Lakshmi v. Mukundan(1953) 2 M.L.J. 54-5) seems to look with disfavour the observations made in Thathamma v. Thanhappan. Here was the case of a gift to one's wife Thala and her santhanams. The question arose whether the gift was purported to be for Thala and for her two daughters, absolutely. The late Govinda Menon, Jas he then was) held that the gift was to the thavazhi of Thala and children, with the incidents of tarvad properties, for it was a clear case where all the members existing in the thavazhi were included as donees.

The learned advocate appearing on the other side tried his best to apply the opinion of the judges who decided Thathamma v. Thanhappa, but with no effect. Menon, J. said

"With all deference to the learned judges, this is not stating Marumakkathayam law as it is. We do not think that ever since the decision in 39 Madras 317 (F.B) based on the presumption arrived at by the J.C. decisions subsequent to the F. B. decisions, have in any way made inroads upon that proposition".

Another aspect of the matter was also discussed in this case i.e., whether the presumption will hold good in cases where the donor happens to be an uncle or brother of the donees. It was held that the presumption can be drawn even in such cases following the decisions in 32 I.C. 107 by Kumaraswamy Sastriar, j.

In Basharan v. Kavunni (1954) 2 M.L.J. 294) a will was executed by one Kunhan in favour of his seven children excluding the youngest child of two years. The question arose whether the presumption can be drawn in this case where obviously the donees do nol consist of all the children alive. It was held that there was no scope for such a presumption and that the question falls to be considered in each case on the factwhether the gift was intended for the thavazhi or for the donees as tenants-in-common. After a careful interpretation of the will, which in clear and explicit terms specified that "except for them no other person can lay any manner of claim to this property", it was held that the donees took as tenants-in-common and further observed that in view of the case law on the subject, the presumption of thavazhi property could not be extended in such cases.

Damodara Menon v. Bhargavi Amma (1956 2 M. L. J. 311) which is the latest case decided by the Madras High Court, a person and his sister gifted their properties to his wife and children of the former. Following the ruling in Chakkara Kannan v. Kunhi Pocker it was held that the gift to a woman and her children then existing, all together forming a natural group, must be deemed to be a gift to a thavazhi. Even if the donor happens to be someone other than the husband, there is absolutely no bar in applying the presumption.

In the light of the above discussion of the case law on the subject, the following conclusions can be arrived at.

1. A person governed by the Marumakkathayam Law can make a gift to an entity called a thavazhi in which case the properties gifted will have the characteristics of a tarvad property.

2. When the gift is made by a person to his wife and children, the genera i presumption is that the gift is for the thavazhi.

3. When the donees under the gift take within its fold the wife and children or in the absence of the wife, all the children, the presumption will be applicable

4. When all the members existing in the thavazhi are included and in the "absence of any express intention excluding the benefit under the gift to the

children in future, the presumption will hold good.

5. When the gift is made to the children of the same mother or to a member or members of the thavazhi without an express indication that an absolute alienable estate was granted, the presumption is that the donor intended to confer an estate with all the incidence of tarvad properties.

6. Even in cases where there are more than one donor, e. g. husband and brother, or other relations, subject to the above conditions, there is no harm in applying the presumption of the thavazhi properties.

Incidently, the view adopted by the Travancore High Court happens to be in consonance with the Madras view. The earliest decision is reported in Narayani v. Parvathi Nangeli (5. T. L. B. 116) wherin it was held that:

"The intention of the father of a Marumakkathayam family who makes a provision for the adequate maintenance of his children and their mother by giving them landed preperties is that the donees should enjoy the properties in common by taking usufructs of the property jointly and (hat the property should in all respects be subject to the incidence of other similar properties held by them as members of the tarvad. This intention has invariably seen respected by the people and has come to be regarded as a usage. We do not see why this court should refuse to accept the well-known usage of the country."

This statement of law on the subject enunciated so long ago, has been subsequently recognised and consistently followed in a series of later cases. In Kallyani v. Lakshmi (II. T. L. R. 139) the property was acquired by the father in the name of one of the children. It was held that the presumption is that the acquisition was for the benefit of the sub-tarvad constituted by all the children and the mother. The decision in Narayana Pillai v. Krishnan (22 T L R 287 F. B.) was also to the same effect. In Chakki v. Raman (26 TLB 11 F. B.) the gift was by the brother in favour of two sisters. It was held that the denees should take it as the sub-tarvad property and not as tenants-in common.

Unfortunately, the Cochin High Court consistently followed the opposite view right from the beginning, in Kuttirishnan Nair v. Cheethamma (10 Cochin L. R-614). According to this decision in the absence of an express or necessarily implied intention, to the contrary, the donees or legatees of putravakasam properties can only be regarded as tenants-in-common with regard to the subject matter of the gift as the case may be. This rule of construction was strictly followed in the series of subsequent cases i.e. Parukutty v. Raman (14 Cochin 363), Achuthan v. Devassy (28 Cochin 616), Thankam v. Raman (30 Cochin 131) and was finally approved and confirmed in a full bench decision in Tripurasun-dary Amma v. Anantha^admanabha Iyyer (36 C. L. R. 759).

It is interesting to note that after the integration of Cochin and Travancore States, when this question again came up before the T, C. High Court, it has given effect to both these opposing views, according as the parties belonged to Cochin or Travancore State. Both in Kallyani Amma v. Devaki Amma (1950 KLT705. F. B) and Narayana v. Kumaran (AIR 1951 T. C 11) where the parties hailed from Cochin area, the well established rule of construction enunciated in Kuttikrishnan v. Cheethamma was adopted without any hesitation.

In a very recent decision in Amina Beevi v. Vasudevan (1956 KLT 117) F.B.) Joseph Vithayathil, J. delivering the judgment remarked as follows:

"This being a Travancore case we find no reason why we should not follow the view that was being taken by the Travancore High Court from5 TLR 116 onwards. We therefore hold that in the case of a gift by a Marumakkathayee mother to her daughter......, the presumption is that it enured to the benefit of sub-tarvad of the donees."

Again in Janaki Amma v. Kunji Lakshmi Amma (1956 KLT 867 FB) wherein the parties hailed from Cochin, it was held:

"As such an acquisition by a Nair male in the name of his two daughters should in conformity with the line of decisions in Cochin courts, be taken to be a gift for the persons specified and they take it as tenants-in-common or joint tenants.

Koshi, C. J., observed: "The path of prudence lies in deciding each case on its own merits and not attempting are conciliation of the conflicting presumptions that obtained in the Cochin area on the one hand and in Travancore and Malabar on the other with respect to the matter. It is too late to attempt to examine the comparative merits of rival presumptions and seek to prefer one of them to the other."

It is worth while to note that these rival presumptions are not the result of any basic difference in law, but only of fact. All the High Courts took inspiration from, and followed, the rule of construction propounded by the Judicial Committee in 6 MIA 526 in arriving at the intention of the donor. Both the Madras and Travancore High Courts have assumed right from the beginning that a Marumakkathayee donor would ordinarily intend that the donees should take the properties gifted subject to the incidents of a thavazhi or tarvad properties, which is the prevailing system of holding and enjoying the properties in the respective areas. But the Cochin High Court consistently refused to accept the above view and presumed that the beneficiaries under the gift would take it absolutely as tenants-in-common, on the ground that both the systems of holding and enjoying the property i.e., as a thavazhi & individually, are equally in vogue in Cochin and that there is no reason to attribute one idea to the donor rather than the other, Thus it is clear that the difference is not exactly in law, but is only in fact i.e., the fact how the property is being held and enjoyed by the community.

And now that a separate Kerala State has come into existence and the integration of laws have proved to be of supreme importance, it is worth while to see the view adopted by the Kerala High Court. In Sarada v. Trivandrum Permanent Fund Ltd. (1957 K. L- T. 756) Mr. Justice Varadaraja Ayyangar observed as follows:

"There was no rule even in the days when pristine Marumakkathayam law prevailed that under no circumstances could a gift be made by a Marumak­kathayam father to his daughter so as to constitute her the sole and absolute owner of his bounty. And with the transfer of emphasis from group to indi­vidual ownership, brought about by the statutory innovations, there is less scope than ever for gifts in favour of sub-tarvads."

The trend of decisions in Karthyani v. Kesavapillai (1957 K.L.T. 355), Phillip v. Kesavun (1957 K- L. J. 1028) and Lakshmi v. Anandan Nambiar (1958 KLT s. notes 30) is clearly in favour of conferring the benefits under the gift on the donees absolutely. It is worthy to realise that our High Court will formulate a uniform rule of construction of gifts, so as to assure uniformity in the law of the State.

Reasons for Administrative Orders

(P. Leelakrishnan, M.A., M.L., Lecturer in Law, University of Kerala)

The Kerala High Court decision in Ibrahim Kunju v. State of Kerala! lays stress on the essentiality of stating reasons in the order of a public authority.

The petitioner, the president of a Co-operative Society challenged the order of the Joint Registrar of Co-operative Societies superseding the Board of the society for six months and the order of the minister endorsing the said supersession.

The Joint Registrar took the decision on the report of the Deputy Registrar recommending supersession for the alleged irregularities. The details of this report had not been put to the petitioner by the Joint Registrar before he took the decision. The petitioner appealed to the minister. On the day when the case was taken by the minister, the advocate of the petitioner sent a written adjournment petition without the knowledge of the party. The minister did not allow the adjournment petition while on the other-hand he allowed the impleading of a member of the society to oppose the appeal. The minister dismissed the appeal endorsing the order of the Joint Registrar. In the petition before the High Court the main grounds of attack were that both the authorities did not state reasons for their orders and that they did not observe the rules of natural justice.

The Court seems to have accepted the contention that Joint Registrar's conduct in not furnishing the copy of the report of the Deputy Registrar was bad (The Court directs that the Government should furnish the petitioner with a copy if the Government goes to rely on it Ibid. p.70). The Court also accepted the petitioner's plea that he had no opportunity to engage another lawyer (Ibid, p 70. The circumstance that led to this view was that the adjournment application sent by the lawyer was without the knowledge of the party and that the minister had rejected the application in his back.) Lastly the High Court held that both the orders were bad as they did not disclose any reasons in support of the conclusions.

Krishna Iyer J. has observed in the case that battle for natural justice in administrative actions had already been fought and won in countries 'where rule of law is respected. Hence we should also take the doctrine of natural justice 'as part of the humanist discipline of the executive authorities who affect rights of citizens by their acts' (Ibid. p. 67). Really the importance of the decision lies in the fact that the major part of the judgment is devoted to establish that giving reasons for an administrative order is part of this 'humanist discipline'. It has been held that the minister's non-interference with the order of the Joint Registrar without any examination of the alleged irregularities was 'an abdication of the appellate power' given to him 'rather than an exercise of it' (Ibid. p. 68.) The judge categorically lays down the principle that 'quasi-judicial obligation involves giving of reasons for orders, since justice is not expected to wear the inscrutable face of a sphinx' (Ibid). Krishna Iyer J. has taken a bold step forward in acknowledging statement of reasons in an order as part of the common law doctrine of natural justice ( Writers on Administrative Law do not specifically say that this is part of natural justice. Cf. Wade, Administrative Law (1967) p 195) while courts were hesitant (See, Chatterji. A, Natural Justice and Reasoned Decisions, 10 J. I. L. I. (1968), 241, p. 247. But the writer has quoted a Delhi decision (Jogannath v. Union of India AIR. 1967. Delhi 121 p. 124) as one which held giving reasons as part of natural justice) to take up such a stand so far.

Tracing the history of judicial dicta on the point one finds that the present case has much similarity to the M. P. Industries v. Union of India (AIR. 1966 SC. 671.)and Bhagat Raja v. Union of India (AIR. 1967 SC. 1606.). In these cases the Supreme Court held that the Central Government while rejecting the revision under Rule 55 of the Mineral Concession Rules, 1960 had to act judicially. The revision was against the State Government's order rejecting the application for license. In these cases neither the State Government nor the Central Government stated the reasons for the order rejecting the license. The Supreme Court held (The Supreme Court allowed the appeal in Bhagat Raja's case (AIR .1967 SC. 1606) bud dismissed the appeal in M. P. Industries case (AIR. 1966 SC 671) as in the latter the State Government had already notified afresh inviting applications for license) that this had vitiated the orders. In Ibrahim Kunju's case (1969 KLT. 230; AIR. 1970 Ker. 65) the same spectacle of issuing orders without stating reasons to support them is seen in both the levels of public authorities. If an appellate or provisional authority endorses an order of a subordinate tribunal or of an officer who had already given valid reasons for the decision, the order of the appellate or provisional authority will not be declared invalid on the ground that there are no separate reasons to support it. But when the reasons given by the subordinate tribunal are scrappy or nebulous and the appellate authority makes no attempt to clarify them the order will not stand. (Bhagat Raja v .Union of India AIR. 1967 SC. 1606 p. 1610.) Suppose there is an order which does not state reasons but at the same time implies the reasons. (Nandram Hunatram v. Union of India, AIR. 1966. SC. 1922. The State Government gave notice to take the colliery from the firm in the circumstances where the partners of the lessee fell out, when the usual operations could not be made and when there was apprehension that colliery would be flooded. The revision against this order was rejected by the Central Government on these apparent grounds though they were not stated.)The order will not become bad on the mere ground that reasons are not specifically laid because the circumstances are so clear that absence of reasons could not possibly leave anybody in doubt whether or what the reasons were. (Bhagat Raja v. Union of India AIR. 1967. SC. 1506 p. 1614. Mitter J., distinguished this case with Hunatram's case (AIR) 1966 SC. 1022) saying that in the latter the circumstances spoke themselves for the cancellation of the lease) in the case under comment the facts do not show that there are such implying circumstances. But on the other hand, it can be seen, the report of the Deputy Registrar of Co-operative Societies had its 'dark' influence upon the order' of supersession and had been in full accepted by the public authorities who had neither given an opportunity to the petitioner to effectively oppose the report nor exercised their mind to the explanations already given by the petitioner.

The necessity of giving reasons in administrative orders had been pointed out by courts as well as Jurists. If reasons are given, an appellate court may be in a position to canvass the correctness of the reasons given, (M.U.M. Services Ltd. v. Regional Transport Authority AIR. 1953 Mad. 59 p 60. The Court held that the Regional Transport Authority should give reasons when it issues a permit instead of merely writing down that the selected person was 'most suitable'. The Court pointed out that the authority did not give reasons for the suitability of the person selected.)to quash the decisions if the reasons are not adequately given (Wade, Administrative Law. (1967) p. 216.)and thus to make a judicial review of the decisions easy and effective (Schwartz, An Introduction to American Administrative Law. (1962) p. 166; Harinagar Sugar Mills Ltd v. Shyam Sundar, AiR. 1961 SC. 1669 per Shah J., p. 1678.)If reasons are not given the right of appeal will become otiose (M.U.M Services Ltd. v. Regional Transport Authority AIR. 1953, Mad. 59, per Subba Rao J., p. 63.). That-may be the main reason why Cardozo J. (The United States v. Chicago. M. St. P. & PRR, 79 L. ed. 1023, 1032; 294 U.S 499, 511 (1935). When the Interstate Commerce Commission does not precisely state its decision with such 'simplicity and clearness 'that will make 'a halting impression' ripen into 'reasonable certitude' the Supreme Court is not in a position to endorse the decision.) had stated that the judges must know what a decision meant before the duty became theirs to say whether it was right or wrong. In India, Articles 136 and 227 of the Constitution expressly give the power to the Supreme Court and the High Court respectively to review the decisions of the tribunals in the country. As Mitter J. has pointed out the courts exercising the powers under these articles will be at a disadvantageous position if the tribunals do not state reasons for their decisions. (Bhagat Raja v. Union of India AIR. 1967, SC. 1606 p. 1610.)

The need for giving reasons is connected with the concept of speaking order. As Lord Cairns has held a speaking order is one which states upon the face’ the elements which had led to the decision (The Overseers of the Poor of Wallsal v. London & North Western Railway Co., (1878) 4 AC. 30 p. 40. The judge held that an unspeaking or unintelligible order would make the judicial control an impossibility). Basing these words it can be found that a speaking order means an order that gives reasons for the decision and an unspeaking order means an order which gives no reasons (R. v. Northumberland Compensation Appeal Tribunal, Ex-parte Shah, (1951) 1. K.B. 711 per Lord Goddard C. J. p 718.) In short an order which speaks for itself or states the reasons in support of it, is a speaking order. In Joseph v. Superintendent of Post Offices, (1960. KLT. 1304; AIR. 1961. Ker. 197 per Ansari C. J. p. 199. A non-departmental branch postmaster was removed from service for his unsatisfactory work by the res­pondent without making any reasons in the order which the High Court quashed.) the Kerala High Court has laid down that an order by a quasi-judicial authority must be a speaking order and that the absence of reasons in it would be fatal to its legality.

It is to be noted that on the question of not giving reasons for the rejection of the adjournment application Krishna Iyer J., has taken a definite stand holding that it was not against natural justice. The judge is of the view that giving reasons for every incidental or interlocutory order 'would make the canons of natural justice unnatural and unjust. (1969 KLT. 230. p. 237; AIR. 1970 Ker. 65 p. 70)

It is now well-settled that it is the basic right (Schwartz, An Introduction to American Administrative Law, (1962) p. 164) of the litigants to know the reasons for a decision which adversely affects their person or property. If the party affected by the decision is kept in ignorance of the reasons it will clearly prejudice his right to move the provisional or appellate court (Chandra Deo Sing v. Prakash Chandra Bose, AIR 1963 SC. 1430 per Mudhol-kar.J,,p.1435) it has been said that orders without reasons would introduce arbitrariness in administrative orders.( Schwartz, op. cit.) The condition to give reasons introduces clarity and excludes or at any rate, minimizes arbitrariness. (M. P. Industries v. Union of India, AIR. 1965 SC. 671 p. 674.) It gives satisfaction to the party against whom the order is made. The necessity of giving reasons can be described in no better words than those of Subba Rao J. (Ibid. pp. 674, 675.)

"If the tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuse of power. But, if reasons for an order are to be given, it will be an effective restraint on such abuse, as the order, if it discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction."

The compulsory need to articulate the reasoning process upon which a decision is based will require the administrative authority to work out in its mind all the factors which are present in a case. (Schwartz, op. cit) Thus the obligation to evolve a chain of reasoning is desirable from the point of view of promoting a sense of the judicial spirit in the adjudicator no less than in promoting certainty into the body of the law. (Robson Justice and Administrative Law (1947) p. 277 this certainty into the body of law must be what Cardozo J. meant by the 'reasonable certitude'. See, n. 20, supra)

In England and U.S A. Statute makes it necessary for the administrative adjudicators to state reasons in their decision. Thus Section 12 of the Tribunals and Enquiries Act, 1958 in England requires the tribunal or minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving or notification of the decision, to state the reasons'. One has to say that the request provision in the section is unfortunate (Wade, op. cit. p. 248,) for it is a protection for the administrative adjudicators, however, in practice requ­ests are seldom made but most tribunals give their reasons as a matter of course. In the United States, the Administrative Procedure Act, 1946 requires administrative decisions to be accompanied by 'findings and conclusions, as well as the reasons or basis there for, upon all the material issues of fact, law, or discretion presented on the record'. (Section 8 (b) In India there is neither an Administrative Procedure Act nor a Tribunals and Enquiries Act which requires the tribunals and other adjudicators to state reasons in their decision. But the evolution of the doctrine of reasoned decisions through judicial process has rather made itself as part of a growing 'common law' of natural justice in India. In this light the decision in Ibrahim Kunju v. State of Rerala (AIR. 1970. Ker. 65. p. 70.)merits appreciation especially at a time when the barriers between the administrative and the so-called quasi-judicial powers are being narrowed down (The recent trend of the courts is to pull down the artificial wall that divides the two powers for the purpose of natural justice, See, Kraipak v. Union of India AIR" 1970 SC. 150 p. 154; State of Orissa v. Dr. Binapani AIR. 1967 SC. 1269 p. 1272, In re H. K. (An Infant) (1967) 2. QB. 617. p. 630.). One who understands this will certainly advocate for a special training (Krishna Iyer J. had suggested that administrative officers should be educated in Administrative Law so that 'many an unwanted babe in the writ jurisdiction would not have been born' Ibrahim Kunju v. State of Kerala 1969 KLT. 230 p. 238; AIR. 1970 Ker. 65 P. 70.) of administrative authorities on the various developing fields of natural justice.

APPOINTMENT OF LEGAL PRACTITIONERS

AS HONY. MAGISTRATES

(G. Sadasivan Nair, Advocate, Quilon)

1. In the Kerala Gazette dated 10th June 1958, a Government Order (G.O.No. (MS) 686 dated 5th June 58 has been published under caption 'Appointment of Legal Practitioners'. The Order purports to remove certain hardships caused by a prior order of Government (G. P. No. CJ 6-6871/56/JD dated 30-10-55) imposing a bar on legal practitioners being appointed as Hony. Magistrates.

2. The principle underlying the bar in question is embodied in Section 557 of the Code of Criminal Procedure, which says that 'no pleader who practices in the court of any magistrate in a Presidency town or district shall sit as a magistrate in such court or in any court within the jurisdiction of such court'.

3. Government appear to have recognized the fact that such bar as was imposed by the earlier order caused hardships by denying opportunities to legal practitioners to serve as Hony and Special Magistrates in Bench Magistrates Courts and calling in men without the requisite knowledge or training to discharge judicial functions. As such, one would rightly expect Government to remove the bar altogether or at least to relax the restriction placed on legal practitioners. What confronts one, however, in the present order is just the contrary inasmuch as the scope of the bar on legal practitioners has only been further widened.

4. The latest order in effect precludes legal practitioners practising in any civil, criminal or other court whose jurisdiction takes in any part of the territorial jurisdiction of the Bench Court from being appointed as Hony. Special Magistrates of that court. Besides, those legal practitioners within the jurisdiction of the Bench Court who may have cases pending in any court within that jurisdiction will also be disqualified. Apparently this is unwarranted and goes counter to the professed intentions of the Government, inasmuch as it precludes many more legal practitioners from being appointed as Hony Magistrates than under the original order or under the prohibition contained in the Code of Criminal Procedure.

5. Suffice it to say, the Government order under review leaves much to be desired and its object stands self-defeated.

THE BAR OF RENT CONTROL PROCEEDINGS BY THE

KERALA ACT 1 OF 1957

(By M. Karumharan Nambiar, B.Com. B.L., Advocate, Cannanore)

The learned article by Mr. K. E. Gopinath under the above caption discusses the circumstances under which a petition under S. 7 of the Madras Buildings Lease and Rent Control Act for the eviction of a tenant from a building which is a hut is liable to be stayed under S. 5 of Act 1 of 1957, not S. 4 as pointed out erroneously in the article.

The bar under S. 5 of Act I of 1957 is against eviction of a kudikidap-pukaran from his kudiyirippu. This leads us to the question who is a Kudikidap-pukaran. 'Kudikidappukaran' has been defined in Travancore-Cochin Prevention of Eviction of Kudikidappukars Act (XIII of 1950) as "a person who has no homestead or land of his own to erect a homestead and has been permitted by an owner of a land to have the use and occupation of a portion of the land for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given......". Act 1of 1957 defines a Kudikidappukaran as "a Kudikidappukaran as defined in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act 1955 and includes any person in occupation of a hut (whether constructed by him or not) in any portion of a land belonging to and in the possession of another and who has been permitted by the latter to occupy that hut, bat has no interest in that land......" It is clear that Act 1 of 1955 has extended the ambit of the definition to include a person in occupation of a hut whether the hut was constructed by him or not. Under the definition in Act 1 of 1955 we have two classes of Kudikidappukaran, one the Kudikidappukaran as defined in Act XIII of 1955, who is a person who has constructed the hut iff his occupation, and the other, the Kudikidappukaran, ulkudidar of Malabar, who is a person in occupation of a hut whether constructed by him or not- A kudikidappukaran of Act XIII of 1955 can only be a person who has constructed the hut himself, a Kudikidappukaran of Act 1 of 1957 need not be one such.

The present amended Act 30 of 1958 has incorporated the definition of Kudikidappukaran in Act XIII of 1955 in a separate clause as clause 1 of S. 3 and clause 2 of S.3 is an improvement on the latter half of the definition of kudi­kidappukaran in Act 1 of 1957 in as much as it makes clear that the hut in question is one constructed by the person owning and possessing the land in which the hut is situated.

The conclusion of Mr, K. E. Gopinath that a kudiyirippu in relation to which eviction proceedings ought to be stayed is only one which has been built or constructed by the Kudikidappukaran is absolutely unwarranted and that conclusion is solely based on the definition of Kudikidappukaran as defined in Act XIII of 1955 which has been modified and the feelings of discomfort and haplessness expressed by Mr. K E. Gopinath over the definition of the word 'hut' are the logical outcome of this misapprehension.

Therefore the point now to be considered when the question of stay of a petition under S. 7 of the Madras Act for the eviction of a building is raised is whether it is ''a dwelling house which has a value not exceeding Four Hundred Rupees" and whether the person who is sought to be evicted has no homestead or land of his own to erect a homestead If these conditions are satisfied the petition under S. 7 has to be stayed under Act 1 of 1957, irrespective of other considerations