IF A CHRISTIAN WOMAN MARRIES A HINDU SOLELY IN A HINDU CEREMONY OF MARRIAGE IS SHE ENTITLED TO AN

ORDER FOR MAINTENANCE UNDER S. 488 OF THE

CRIMINAL PROCEDURE CODE?

By

J. Duncan M. Derrett, D.C. L.

Professor of Oriental Laws in the University of London

This short article is a criticism of Kunhiraman Nair v. Annakutty 1967 KLT 24 the decision of a single judge Mr. Justice K. Sadasivan. There can be no doubt but that his judgment met the needs of justice. The woman, whose right to maintenance had been challenged by a man who had kept her as his wife for several years and who had begotten a child on her, and who had recognized her as his wife and his child as legitimate, was certainly morally entitled to be maintained by him, and the learned judge, in upholding the magistrate's order did what any right-thinking man would have wished him to do. But technically the decision may have been wrong. And the Indian law should be reconsidered, so that a better state of affairs may be arrived at. If, as I contend, Sadasivan, J/s decision was incorrect in law, but right in morals, the case of Annakutty convicts the Indian law of error. Let us look into the matter.

Marriages between Christians and Hindus take place quite often. And it is of no use for upper-class Hindus, whether in Madras City or in New Delhi, to say that ''such people ought not to exist, it is better that we ignore them". There are castes, of which the best known is that of the Madras, amongst whom marriages between Christians and Hindu are common. Admittedly, the majority provide no practical problem, because one of the spouses is converted-- though even there an attempt is made sometimes to contend that the conversion was not complete or effective in law. When Christians are converted to Hinduism for this purpose, and the union is accepted by the caste, the matter is not worth scrutiny, and in practice the sincerity of the conversion, and its relation to public policy, is not entered into. A recent and typical case is Seethalakshmi v. PonuswamyILR. I966 2 Mad. 373, 1967 2 MLJ. 334. The fact that Pakistan might, in similar circumstances, take a very different view -- Mhd. Mustafizur Rahman v. Mrs.Rina Khana P. L. D. 1967 Dacca 652. Compare Mira Devi v. Aman Kumari AIR. 1962 M. P. 212 (profession of a religion is a formality). -- is neither here nor there, for Pakistan is not a secular state.

We are concerned here with marriages between Christians and Hindus in which neither spouse was converted prior to the marriage and each retained his or her religious affiliation. I think most readers would agree that India being a secular state it is high time that if there is (as there certainly is) a problem here there ought not to be one. As matters stand we have the personal law system, so that the Christian wife of a Hindu will have no rights against the Hindu at Hindu law unless the Hindu law itself recognizes the marriage as valid. Alongside this particular situation there is the Indian Christian Marriage Act, 1872, which permits non-Christians to marry Christians;-- It permits a Christian and a non-Christian to marry in the forms prescribed by the Act itself. In 1892 the Legislature believed that marriage between a Christian and a non-Christian was utterly outside the scope of the Act of 1872. This is made abundantly clear by the provisions of the Marriage Validation Act, II of 1892, which actually penalises any person licensed under S. 9 of the Act if he performs any such marriage (S. 6): i. e. such marriages must be performed under Parts I and III of the Act of 1872, or not under the Act -- and there is the Special Marriage Act, 1954, which permits Indians of any religion or none to intermarry. The argument often heard is that since we have these two statutes there should be no problem, since the spouses can get their marriages registered under either of them, and if they are not intelligent enough to do this, they deserve no consideration but what of their issue? Should they have been more intelligent in choosing their parents? I am afraid the difficulties of the couple who actually marry under Hindu rites, one of them being at the time a Christian, must be investigated in their own interests and in the interests of their children.

1 pointed out in my Religion, Law and the State in India London (Faber). 1968, p. 342 that the Hindu Marriage Act, 1955, left it completely uncertain whether Hindus who married Christians under Hindu rites and ceremonies would be governed in matrimonial matters and otherwise by the Hindu law. I had made the same objection in my earlier book, Hindu Law, Past and Present, but the only reaction was that a reviewer duly noted the fact. (S. Varadachariar at The Hindu– Sunday 23 Feb. 1958). In my Introduction to Modem Hindu Law (1963) Atbpara 262, I dealt with the topic very briefly, but a reviewer somewhat nastily declared that I was completely wrong. (S. S, Nigam at Law Quarterly Review, April 1965, p. 315. I had never heard of Mr. S. S. Nigam until I read his detailed and curiously-pitched review of my book, and I have never heard of him since apart from two articles on the development of Hindu law). I fear he himself did not know the Hindu law on the subject.

The position is that the Hindu Marriage Act provides for marriages between any two Hindus; and since it does not contemplate marriage between Hindus and Christians the "over-riding" section applies. The previous law is only abolished so far as the Act of 1955 makes provision, and (he previous law remains in force so far as it is not inconsistent with the Act's provisions (S. 4). From this it is evident that if a marriage between a Hindu and a Christian under Hindu rites was valid anywhere at Hindu law before 1955, it remains so still. But the matrimonial regime will not necessarily be that laid down in the Hindu Marriage Act, except in so far as Justice, Equity and Good Conscience so provide, until (that is to say) the non-Hindu spouse is converted to Hinduism, whereupon (I apprehend) the matrimonial reliefs set out in the Hindu Marriage Act would be available to them. But the reader will object: what is the use of this supposition, since the Indian Christian Marriage Act in the clearest terms provides that a marriage between a Christian and a Hindu not registered in accordance with that Act is void'? This requires careful scrutiny.

I think we should commence with the Indian Christian Marriage Act. The position revealed is exceedingly unsatisfactory. Sec. 4 of that Act provides that "every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void." If this were to be taken literally the position would be as described by Napier, J., in his order of reference to the Full Bench in In re Kolandaivelu (1917) 40 Mad. 1030 (33 M. L. J. 148) at p. 1032-3.

"If this section is not to be so read (i e as not referring to marriages purporting to be solemnized in accordance with usage amongst Christians) it would follow that the legislature in 1872 has declared void all marriages according to casts custom between a Hindu and a Christian, with the necessary result that the children are illegitimate and cannot acquire rights of property. I very much doubt whether the legislature intended to interfere in this manner with Hindus among whom marriages are regulated by caste custom’

Sadasiva Ayyar, J., in the same order of reference (Ibid., at p. 1035) said,

"If the word 'solemnize' as used in the Act merely means 'celebration (including celebration with Hindu or Mussalman rites), the Act cannot be said not to violate the principle of religious neutrality followed almost without exception by the Indian legislature, a violation which visits followers of religions other than the Christian with very severe criminal penalties for doing acts not prohibited by those other faiths. A construction which credits the legislature with such violation should, if possible, be avoided. A Sunni Mussalman male and a male of one of several of the Shiah sects can validly marry according to his law in the permanent form and with Muhammadan rites a 'Kitabia'…If S. 68 of the Christian Marriage Act be interpreted as widely as has been done in Queen-Empress v. Yohan (1894) 17 Mad. 391 and Queen-Empress v. Paul (1897) 20 Mad. 12 a Khaz who performs a marriage between a Mussalman male and a Christian female according to Mussalman rites is liable to the punishment of transportation for ten years. Whereas a Christian minister or Marriage Registrar who performs a marriage with Christian rites or the declaration ceremonies mentioned in S. 51 between a Mussalman male and a Christian female is not subjected to any such penalty and performs a perfectly lawful and valid act. It may be said that when S. 4 declares that a marriage 'solemnized otherwise than in accordance with S. 5 between two persons though one of them alone is a Christian is void, the legislature does interfere with the Mussalman religion and the additional imposition of criminal penalties of a severe nature on such solemnization by the later S. 68 does not, in principle, carry the interference further."

In "spite of these sensible remarks the decision of the Full Bench was that when a Hindu purohit solemnizes marriage between a Hindu and a Christian (he of necessity could not be appointed a Marriage Registrar, not being a Christian) he is guilty of an offence under sec. 68 of the Indian Christian Marriage Act, 1872. The judgment of the court included the words, ''Under that Act all marriages of Christians must be performed, on pain of nullity, in one of prescribed forms". The reasoning was that the whole history of the legislation, in, England and then in India, was to prevent clandestine marriages. The reasoning is hardly sufficient to support that conclusion, which, though at first glance entirely supported by a literal interpretation of sec. 4, is obiter and was not required for the decision of the question, which was that of the purohit's guilt. In fairness one should point also to the obiter remarks of Shephard, J., at Queen-Empress v. Fischer (1891)14 Mad. 342, 361, and to the opinion of the Legislative Council expressed in the i Bangalore Marriages Validating Act, XVI df 1936 (Preamble). To be weighed along with the Madras we have the Allahabad and Bombay views. They too do not deal with our question directly, and provide only sidelights upon it. But both in Emperor v. Maha Ram (1918) 40 All 393 and in Saldanha v. Saldanha (1929) 54 Bom 288 the learned judges agreed with observations in Madras that the validity of marriages was not the chief concern of the Act of 1872, and opined further that the Act was not intended to operate to the prejudice of personal laws except as to matters of form. In the Allahabad case, the circumstances in which were not utterly dissimilar with those of the South Indian situations with which I am concerned now, the judges expressed great doubts whether the legislature could have intended to prohibit, or render void, marriages performed in a non-Christian form and valid by customary law. These are only opinions, though entitled to great weight, because common sense is behind them. In Sm. Swapna Mukherjee v. Basanta Ranjan Mukherjee AIR 1955 Cal. 533 which was a bigamy prosecution, the husband was acquitted because the court assumed that his alleged conversion to Hinduism was not valid and that therefore his marriage to a Hindu woman by Hindu rites was not a valid marriage, wherefrom he could not be guilty of bigany So strict an interpretation suited a criminal case of that description. But where their Lordships go on to say, without citation of authority, that a Christian cannot marry a Hindu under Hindu rites and ceremonies they take as established something which the law has not yet determined, and though not obiter this expression of opinion could conceivably be per incuriam To make matters worse we shall see that when it comes to proof of celebration of marriage for the purposes of applying sec. 488 of the Criminal Procedure Code, the courts have not insisted upon actual proof: thus it does not follow that the marriage is "void" if one cannot show that it has been performed with all due regard for the "prescribed forms" laid down in the Act. However, I must emphasize that the law had not (until our instant Kerala decision) gone so far as to dispense with proof of ceremonies conforming to the Act when there was proof that ceremonies inconsistent with the Act were actually performed: that is quite another matter.

Thus, taking into account the Madras Full Bench decision and the equally obiter opinions in Allahabad and Bombay, and the unsupported judicial opinion in Calcutta in more recent times, the legal position in Malabar as left in In re Kolandaivelu (1917) 40 Mad. 1030, 33 MLJ. 148 in 1917 is this: -

(1) Irrespective of the validity of any marriage solemnized under the provisions of the Act of 1872; and

(2) Irrespective of the validity of any marriage solemnized under non-Christian rites between two parties one of whom only is a Christian (an issue which was not thrashed out thoroughly in the Full Bench judgment);

(3) it is a penal offence to celebrate a marriage ceremony purporting to marry a Christian and a non-Christian otherwise than in strict accordance with the Act (the severity of the penalty depending upon the gravity of the offence);

(4) but it remains not finally decided whether a customary marriage between a Hindu and a Christian under Hindu rites is valid as a marriage, the general inference left after reading In re Kolandaivelu (1917) 40 Mad. 1030, 33 MLJ. 148 being that it is not. In an area of India governed by Madras autho­rities that inference prima facie rules until a decision to another effect is obtained from the High Court.

What does Hindu law say upon all this? In Mrs. Chandramani Dubey v. Ram Shankar Dubey AIR. 1951 All. 529, 1950 All LJ. 932 the matter was gone into thoroughly and it was held that Hindu law raised no objection to a marriage between a Hindu and a non-Hindu under Hindu rites. This need not be doubted. The dharmasastra rules do not contemplate a marriage between a Hindu and a non-Hindu of a sacramental, samskara type; but it is clear that the dharmasastra never exhausted the whole Hindu law of marriage, as even an elementary know­ledge of legal history would confirm. In Rajammal v. Mariyammal AIR. 1954 Mys. 38 it was held, following the Dubey case, that there is no rule of Hindu law which forbids the subsistence of a marriage one of the parties to which is a non-Hindu. The learned judge pointed to the ideals of the secular state and, rightly, held that the marriage was valid. In the Dubey case the couple did marry under the Act of 1872, and the problem had been about the rights of inheritance of the issue.

At this point the reader may ask, why was the Indian Christian Marriage Act, s;c. 4, not referred to in the case of Rajammal AIR, 1954 Mys. 38? The answer is simple. That Act was not introduced into Mysore state excepting the C. & M. Station, Bangalore) until 1 April 1951 under the provisions of sec. 3 of the Part B States (Laws) Act, Act 3 of 1951. The marriage between the Hindu male and the Christian female, valid at Hindu law, took place before that date.

Thus we are in this position, that marriages in parts of India where the Indian Christian Marriage Act was not in force (and is still not in force) at the relevant time the ceremonies we are discussing were not criminal offences and the marriages were (and are) valid if in accordance with caste usage and custom. But as soon as the Act was introduced (for in the greater part of India it has been introduced) the discrimination the learned judges in Madras complained of actually came into effect. Yet, the fact that celebration of such a marriage will be a crime does not determine whether the marriage is really "void". Such an anomalous situation is well known to all India. Several marriages (e. g. child marriages) which it is a crime to procure or celebrate are unquestionably valid

While I prefer the Allahabad view and deplore the decision in In re Kolandaivelu (1917) 40 Mad. 1030, as did the learned editor of the Madras Weekly Notes at the time (1917 M.W.N, cl.xxxiv-v), I am bound to take note of it, and so are the judiciary in the Malabar area of Kerala. Perhaps one day the Supreme Court will iron out this tangle. May be the contemplated Code of Family Law will arrive sooner. Meauwhile we cannot expect the High Court of Kerala to proceed as if there were no problem when the case is between persons domiciled in the Malabar area, who were subject to the Act since 1872.

Now in Kunhiraman Nair v. Annakutty 1967 K. L. T. 24, the wife applied under sec. 488 of the Criminal Procedure Code, and the husband denied the validity of the marriage. As we have seen, there were abundant materials which supported his previous belief that he was validly married to her. In June 1960 the couple were married simply and solely with-rites such as are recognizable as rites appropriate to the marriages of Nairs. The husband urged that the cere­mony was void under the Indian Christian Marriage Act. He was entitled to do so, relying purely and simply (though dishonestly) upon the wording of sec. 4. He did this because he and his wife belonged to Malabar, were married at Calicut and had their matrimonial domicile in Malabar. The order petitioned against was that of the Munsiff Magistrate of Manantoddy. Had the spouses belonged to the Cochin area or the Travancore area it would have been another story, since the Indian Christian Marriage Act was never introduced there. (The section reads "It extends to the whole of India (except the territories which, immediately before the 1st November 1956 were comprised in the States of (Travancore-Cochin, Manipur and Jammu and Kashmir)." See Civil Court Menual (M. L. J.) vol. I (1959), p. 636. Manipur in fact has received the Act as a result of the Part C States (Laws) Act, 30 of 1950. The Miscellaneous Personal Laws (Extension) Act, 48 of 1959, did not extend the I.C.M.A., 1872, to any territories). The learned judge said in 1967 K. L. T. 24, 25:

"We are not very much concerned in this case as to whether the marriage between the respondent and the revision-petitioner was solemnized under the provisions of the Indian Christian Marriage Act. For the purpose of S. 488 Cr P. C, it is enough if the respondent satisfies the court that she has been treated by the revision petitioner as his wife."

And the learned judge refers to an Orissa case which does not entirely bear him out (it was between two Christians!), and to which we shall turn presently.

If this were to be correct (it is not) we should have in modern Indian law two standards by which to assess matrimonial status. We have the validity of marriage as established by the personal law of the spouses, or the personal laws of the two spouses where these differ (a matter of some doubt in this instance;), and we have an ad hoc validity for the purpose of the Criminal Procedure Code. This cannot be right. The Criminal Procedure Code cannot authorize the magi­strate to treat as married two spouses who do not have the capacity to marry; where the marriage could not have taken place; where any actual marriage de facto cannot have been valid de jure; or where it has actually been declared null and void! This last point, which is obvious, had to be established in (Govindasami Mudaliar v. Muthulakshmi Ammal (1966) 1 M. L. J. 208: "Where there is a finding as to the status of the parties that there was no relationship of husband and wife between them, by a civil court, it would obviously bar a criminal court from entertaining a petition under S. 488 of the Code."

The law on these points, it is submitted, is as follows. The burden of proof of the subsistence of a vaild marriage lies upon the applicant wife: Manickam v. Poongavanammal A.I.R. 1934 Mad 323; older uncontradicted authorities to the same effect: Pwa Me v. San Hla A. I. R. 1914 Low. Bur. 266, Wafoon v. Ma Thein Tin AIR. 1914 Upp. Bur. 30. A definite finding that the applicant is the husband's wife must be recorded if the validity of the relationship is challenged. Only legally married wives are entitled to maintenance, and the High Court will interfere if the magistrate awards maintenance without justifying his action by a finding as to the relationship: A. T. Lakshmi Ambalam v. Andiammal, AIR. 1938 Mad. 66. In many such cases the man contends that the woman is only a concubine and that no valid ceremony ever took place. Such questions must be decided by the magistrate in his own court: Mt. Mangli v. Ganda Singh AIR 1932 Lah. 301, Mt. Ganga Devi v. Ram Sarup AIR. 1939 Lah. 24, approved in Mathura Bai v. Mt. Marachoo Kuer AIR. 1946 Pat. 176. If the question is whether the couple lived' as man and wife or as a man with his concubine, and if no evidence as to the marriage is forthcoming, the magistrate is not compelled, as a civil court is in restitution cases, to demand strict proof of the marriage ceremony. The presumption raised by several years of open and continuous cohabitation, accepted by the community as a marriage, and confirmed by the birth of issue taken generally as legitimate, will suffice and the magistrate may proceed upon that at basis alone K. J. B. David v. Nilamoni Devi AIR. 1953 Or. 10 (a marriage between Christians in Orissa, purporting to have taken place in conformity with theIndian Christian Marriage Act may be proved from cohabitation and repute for strict proof of the ceremony, e. g. the qualifications of the minister, may be impossible and unreasonable); Satish Chandra Sen Gupta v. Charu Bala A.I.R. 1962 Tri. 61; Bogis Mangati v. Applama A.I.R 1932Cal 866, 59C1 1257; Parvathy Ammal v. Gopala Goundar (saptapadi omitted) 1956 2 M. L. 3. 468; Veeraraghava Gramani v. Bommiammal (presumption held) A.I.R. 1955 N. U. C. 3194 (.Mad.); Gopal v. Gopal (presumption rebutted) A.I.R. 1955 N. U. C. 1039 (Punj.).

Where the marriage is challenged by the husband upon a ground which is plainly intelligible to the magistrate, or the High Court acting in revision of his order, there is no objection to the validity's being tried by him or by the High Court: Manickam v. Poongavannmmal (marriage between sub-castes valid at Hindu law though unknown to custom), AIR. 1934 Mad.323. Where the marriage was irregular but not invalid, the order under S, 488 must be made, even though the personal law shows that such marriages ought not to take place, and the magistrate may take judicial notice of the difference between irreguarity and nullity: Mating Pathan v. Ma San A. I. R. 1939 Rang. 207; Conally v. Conally A. I. R. 1931 Pat. 213, 133. T. C. 175. Where, however, the personal law or laws utterly forbid the marriage, as in Calawlia Jude v.Lancelot Jude 1945 2 Cal. 462, marriage under the Act of 1872 is void, notwithstanding compliance with its forms.

Where, on the other hand, the husband contends that, though he lived with the applicant as his wife, they could not have been validly married because of some abstruse point of personal law, upon which rulings are not readily to hand (as they were in our instant case), the magistrate may award maintenance and his order may be terminated or vacated if and when the husband succeeds in a declaratory suit or a petition for nullity in the civil court: E. S. Nath Das v. S. Dassi (1937) 41 C.W.N. 898; Satish Chandra Sen Gupta v. Cham Bala A. I.  R. 1962 Trip.61.

Now in many cases the personal law includes the right of divorce otherwise than by decree. It is notorious that a husband's divorce of his wife under Muhammadan law operates to put an end to her rights under S. 488, and he can exercise his right to divorce her even in his answer to her application! The magistrate has no jurisdiction to ignore this divorce. Similarly, many castes have customary divorces, and the husband's claim that the wife has already been divorced. In one very strong case the High Court held that the magistrate should have awarded maintenance under S. 488 though at one time the wife was living with the husband's brother as if she were his wife and so had raised the presumption that she had been divorced. But it was not proved on the husband's behalf that he divorced her under Hindu customary law, nor that any panchayat had met to dissolve the marriage or to recognise its dissolution by him; Babu Nandan v. Mt. Punia A. I. R. 1926 AH. 426.

In conclusion I am under the impression that in Kunhiraman Nair's case 5967 K.L.T. 241, the learned judge should have taken notice of the invalidity of the marriage, (since, whatever we think S. 4 of the Indian Christian Marriage Act ought to mean, an authoritative opinion of the Madras High Court was available to him), and should have set aside the magistrate's award-- even though that would have been hard on the hapless reputed wife. If he believed that the law of Travancore-Cochin applied, he should have taken issue as to domicile, and the question would have been argued and recorded. It evidently did not apply, and the Act of 1872 went to the root (or must have appeared to go to the root) of the marriage. True, strict proof of marriage is not always required, but where the marriage is denied upon the ground that no prescribed ceremony took place, but rather that a non-prescribed ceremony took place, and this is not contested by the wife, the whole suggestion of "marriage by repute" falls to the ground. It is wel known that solemn taking of women as concubines is an institution of Hindu usage, with which the Anglo-Hindu law has failed to cope adequately. On the whole S. 488 of the Cr. P. C. has enabled many second-class marriages to count as marriages for the summary protection of discarded women: and that is prob­ably consistent with public policy. The best way one would think, of teaching men not to take women in forms ostensibly matrimonial but actually and intentionally as initiatory of concubinage is to nail them under S. 488. But this argument is not enough to rescue the decision of Sadasivan, J., from technical inaccuracy.

Had the learned judge been properly served by counsel ha would, I surmise, have submitted the question to a Full Bench in the Kerala High Court. Had this been done the discrepancy between Malabar law and Travancore-Cochin law would have been ventilated, and some Kerala legislation would have resulted. The Kerala legislature has tidied up so many corners of the confused personal laws of Kerala that this surmise seems quite reasonable.

Meanwhile let us devoutly hope that S. 488 will not be allowed to create a new matrimonial status, called by a special name so that we have Hindu marriages, Muslim, Jewish, Christian, Parsi, and Special marriages, and a final category 'S.488 Cr. P. C. marriages'. That would really be intolerable.

GLEANINGS AND RAMBLINGS

(K.K. Sreedharan, B. Sc, B. L., Mavelikara)

With the most modest and sincere excuses for adopting this title which has found its place in some of the previous pages of this journal, I would try to tender the following few facts which really captivate the attraction of even an ordinary spectator in the profession. The writer would be greatly gratified if these lines are capable of successfully supplementing the original article under the title (1957 K. L. T. 73-75).

The point is beyond even the tinge of a doubt that the recent past has due to cyclonic channels of thought in spheres of law, politics and sociology mainly, produced a torrent of legislation which has left afloat manifold novel notions substantially transforming the foundations of law in many a field. True it is that in order to seek out the pearls of truth and justice among the deep wilderness as it seems of the realm of laws, many a naughty knot has to be untied and nobody can deny that the pressing necessity for extremely intimate and sincere cooperation between the Bench and the Bar in their joint quest of the illustrious treasure of justice is manifestly self-evident. Not only the lawyer, legislator and Judge but humanity in general it must be admitted stand on the verge of a transition and the need for adaptation to environments which is the essence of success is undeniable. But, can we say that the buoyancy of this transition has not already made its practical repercussions on the already existing relation between the lawyer and the Judge in the conduct of legal business? To my humble self, it seems that a remarkably ostentatious transformation has already settled in and as matters stand at present there is greatly existent the melody of the harmonious march of the Bench and the Bar hand in hand. The extreme formalities of humility, caution and distant respect which a counsel was wont to exhibit before the Bench is now no more than an indistinct, evanescent vision of the distant past. To realise the real existence of this harmony we must for a moment think of the extent and character of the cooperation and cordiality expected to exist as between the two and the practical scope and intent of Lord Lindhursts ''gentlemanliness" which he opines to be the most praiseworthy attribute of a Judge, even overriding good knowledge of law.

What really and in essence is this cooperation? What cooperation does the lawyer, the high priest before the temple of Justice expect of the Judge, the presiding deity? Is it a smiling face and exhibition of pleasant sentiments or dancing to his tune cajoled by his etherial eloquence, apparent fervour or coaxing demeanour? We would all unanimously agree in the negative. Does the austerity on the countenance of the poor Judge imply any want of cooperation? Nay, not in the least. We have only to give a moment's thought to comprehend the real position. The duties, nature and course of business of the Bar and the Bench are unmistakably diverse and practically divergent. Bubbling with enthusiasm to bring home to the Judge his standpoint, aided by blessed advocacy to array the facts and interpret the laws in support of his cause, swayed by the ardency of the profession, enamoured of success in his engagement, the lawyer on either side gives the most emphatic & impressive expression to his ideas, inevitably indulging in a little extravagance & endowing his case with dexterous and to some degree artificial colour and flavour. It is only too natural that, in spite of ordinary caution and diligence, the Judge at the consummation of the arguments on both sides finds himself fetched far away from the root of the case. It is for him to separate the grain from the chaff, digesting the complicated stuff as the case proceeds, duly exercising his best intellectual gifts in the meanwhile. Considering this severe aspect of the affair, it would be a more charitable and gentlemanly construction on our behalf to assimilate the gravity of the Judge's countenance to serenity rather than interpret it as inhumanity or lugubriousness and exhibition of non-cooperation.

The real and essential cooperation between the Bar and the Bench is born exactly at the point where advocacy and justice meet. Sincerity must be the life and soul of every enterprise. And so it is with the work of the Judge also. Sincerity here means the bold and unflinching tenacity of adherence to the belief which he had been able to conjure up before his inner eye, unperturbed by the influence of any individual prejudices or considerations which circumstances and surroundings have precipitated in his way.

It is not infrequent now-a-days that some of the younger generation of our lawyers either inadvertently or intentionally indulge themselves in the catastrophe of identifying themselves with the bench as though in compensation for their extricating themselves from the often impeached fault of identification with the party which has been vehemently protested against by the legal world. It may well be noted that the former is the graver offence against the sworn duties of a member of the bar, imposing upon the Bench erroneous suggestions creating unwholesome prejudices, not to speak of the unwelcome impressions which they might generate in the co-workers and parties in general. Such on authorised transgressions and trespasses into the Judges estate are naturally liable to be prevented by mild injunctions and repremands on the part of the party aggrieved. It is our duty to forget and forgive such reformatory reproof rather than endorse on it the colour of inhumanity or want of cooperation.

We must not forget that, groundless as the charge may be, many a presiding officer throws the blame of meagre disposals on the non-cooperation of the Bar. To whatever diverse other reasons it may be attributed, it is our duty to see that we partake not of the fault. In this era of general awakening, when reduction of litigation is one of the primary motives of all channels of political thought, it is a shame to the bar -- the bed of all well founded thought & leadership, the reins of all revolution and reformations, the mouthpiece of all cry for justice & humanity -- to stand in the way of achieving such ends, merely actuated by the trifling desire for individual advancement. Let us fully extricate ourselves from this undeserved charge. We will endeavour our best to bring about a just and speedy end to all pending litigation lending the warmest co-operation with the Judges whose sincerity we will put to the touchstone.

THE KERALA AGRARIAN RELATIONS BILL, 1957

(Memorandum by Kerala Advocates' Association)

The Kerala Agrarian Relations Bill, 1957 envisages a very important piece of legislation with momentous impacts on the economic, social and cultural life of Kerala. Throughout the long centuries that have rolled on in the known history of Kerala, land has been the most cherished form of property and probably the most significant institution of Kerala national life. Therefore the members of this Association conceive it to be a paramount and inescapable duty to make their own contribution to the shaping of the proposed legislation.

2. The Association as representing the legal profession in the State has absolutely no vested interests in the subject-matter of land; and this report is entirely free of any political, partisan or sectarian views. While we appreciate the attempt of the State Government to initiate a progressive land legislation, so essential for the makeup of the welfare State conceived by our Constitution, we should at the same time sound a note of warning and point our fingers at the writing on the wall that elementary principles of economic and social justice and man's fundamental rights should not be ignored, And may we add in all humility that this warning comes from a profession which by its long and arduous experience in courts of justice is all too familiar with individual misery and national calamities associated with ill-conceived legislation.

3. The Association decided at its meeting held on 31-1-1958 to appoint a small committee consisting of leading lawyers of the State to consider the Bill. The Committee held several meetings to consider the provisions of the Bill and drafted a memorandum to be placed before the general body of the Association. The Association after considering the Memorandum on 19-2-1958 adopted it and decided to submit the same to the Government and place it before the public.

4. In this memorandum, as is only proper, the association has not gone into details and has only dealt with the broader aspects and the fundamentals involved.

MEMORANDUM

From the nomenclature of the Bill one would expect that it is one intended to regulate the relationship of landlord and tenant. But a scrutiny of the provisions of the Bill would disclose that it is one which is expropriatory in character having as its effect the liquidation of the present land-owning classes in Kerala and the creation in their stead of a new set of landowners. In the guise of fixing ceiling on lands and giving fixity of tenure to the tenants, the bill practically deprives the present landowning classes of all their property without any fair or reasonable compensation with the result that they would be thrown into the streets without any means of livelihood and they would become a menace to peace and order in the State. The Bill has the effect of making co­-existence for the various classes in Kerala impossible and depriving certain classes of all means of existence. The definition of permanent tenant is so wide and comprehensive as to include all classes of tenants in Kerala and they would all become the owners of land on the peasants' day as envisaged in the bill and the present landowning classes will cease to have any interest in the land. The provision for-resumption is framed in such a way as to exclude the possibility for even small landowners to resume lands for their own personal cultivation.

2. It is said that the Bill implements the recommendations of the Plan­ning Commission which have as their main object the increase in production. On an examination of the provisions of the Bill we have come to the conclusion that far from increasing food production, the Bill, if enacted into law, will have just the opposite effect of decreasing the productivity of the land and of the lands themselves lying fallow for some years. The Bill will also have deleteriuos consequences in the economy of the State as the large number of Banking Institutions and Chitties which are a special feature of the State of Kerala will be seriously affected by the provisions of the Bill. It is well known that the numerous Banks in Kerala including Land Mortgage Banks advance money on the security of landed property and as it is undoubted that the value of lands will fall on account of the provisions of the Bill, many of the Banks will have to face serious difficulties and several of them may have to be liquidated. The number of Chitties now run in Kerala will come to several thousands and the security they take for future subscriptions before advancing prize amounts to subscribers is generally landed property and if that security falls in value, there will be serious repercussions throughout .the State which anybody acquainted with the state of things in Kerala can easily foresee. If the persons connected with the numerous banks and chitties in Kerala are faced with financial ruin, rural economy is sure to be upset resulting in social unrest and chaos and the economy of the State itself will be in jeopardy.

3. Ceiling cannot be imposed in Kerala with a view to give land for every agriculturist. It has been estimated that if cultivable land is distributed amongst them, an individual will not get more than 13 cents of land. This extent of land will not satisfy anybody. So ceiling for the purpose of equitable distribution of land is unthinkable in this State which has the highest density of population in the world. Ceiling can be imposed only if it will have the effect of increasing production. We are definitely of opinion that ceiling will retard pro­duction as it will necessarily lead to fragmentation of holdings and as the tenant who becomes the owner will not have the means to improve the land or to cultivate the same in a husband like manner.

4. The main provisions of the Bill deal with --

(i) imposing a coiling on land holdings and getting surrender of excess lands and distribution of them by the State to the landless;

(ii) granting fixity of tenure to tenants, resumption by landowners under certain circumstances and purchase of the landlord's interest and

(iii) fixation of fair rent. We shall consider those subjects seriatim.

5. CEILING, SURRENDER AND DISTRIBUTION.

Many entertain doubts as to the advisability of imposing a ceiling on land alone without placing any restriction on owning and possessing other kinds of property. It is true that we have set before ourselves the goal of a socialistic pattern of society but in the implementation of it we shall have to face very serious difficulties. Any person who bestows thought on the subject would be convinced that it is impossible to create a society the members, whereof are financially in the same state. Gradations of wealth are sure to exist. It is said that even in Soviet Russia there are gradations of wealth as exist in Britain, Germany or France and that at one end of the scale some of the poor people are living ten to a room and at the other end the scientists, statesmen, industrial managers, technocrats, artists, and musicians enjoy the comforts of a house in town and a Villa in the country. If that is the state in Soviet Russia after several years of communist rule, itis only an idle dream to think of a society where no inequality of wealth exists. However that may be, we fail to see the wisdom of imposing a ceiling on landed gentry alone who, it must be remembered, form the backbone of the Society in every country and set the tone for the entire population. The imposing of a ceiling on land alone will reduce the landed gentry to an inferior position in the social scale with no means at all to maintain a standard equal to that of the industrialists, merchants, Government servants or persons engaged in the learned professions. The biggest farmer would be brought down to the level of a low grade government official or a small shop-keeper with the inevitable result that men of intelligence, ambition and capital would leave agriculture and migrate in to urban areas in search of better occupations which would enable them and their children to lead a life of greater comfort. We shall now proceed to examine the provisions of the Bill concerning ceiling.

6. The bill fixes the ceiling area at 15 acres of double crop nylon or its equivalent of 22^1/2 acres of single crop nylon or 15 acres of garden land or 30 acres of paramba without any regard to quality, fertility or irrigational facilities of the land. There is no rational basis for fixing the ceiling on the basis of the extent alone. It is well known that the yield of paddy from nilams varies from three-fold to fifty-fold and the yield of cocoanuts varies to the same extent in different parts of Kerala. The yield from parambas generally is negligible except from parambas where commercial crops like groundnut, ginger, etc., are grown. Irrigation facilities will also affect the yield considerably. To fix the ceiling on the basis of the acreage alone without reference to other considerations would work manifest injustice and therefore is unacceptable The only rational basis for fixing the ceiling can be on the basis of income from the land.

7. The income from the land must be sufficient to enable the agriculturist to lead a life of comparative comfort. He must be able to educate his children and must be able to meet medical expenses and other extraordinary expenses which it is absolutely unnecessary to detail here. Children will have to be sent to schools and expenditure will have to be incurred for sending one child at least in a family for higher education or for professional studies. To maintain a proper standard for an agriculturist family of not more than five members it would therefore be necessary to have a net income of at least Rs. 500/-a month or Rs. 6,000/-a year. We. are therefore of the view that if ceiling is to be imposed, it must be only over an extent of land which would give to the landowner an income of at least Rs. 6, 000/- a year or in the alternative an extent of 30 acres of double crop lands or its equivalent.

8. In this connection we wish to point out that the definition of family k likely to cause hardship. As it stands, the definition includes members of joint family entitled to a share on partition. The definition should be modified as to include a person, his wife and minor children. We also think that if any member of a family opts to hold property on his or her own account he or she may be allowed to do so up to the limit of the ceiling.

9. Under the Bill ceiling is made applicable to all lands except

(i) lands owned by Government or any local authority,

(ii) lands belonging to public religious or charitable institutions, and

(iii) lands comprised in Mills and Factorieis, etc.

These exemptions should stand. Provision is also made in the Bill to exempt from ceiling plantations measuring more than the ceiling area provided the owner does not hold any other land except the site of his dwelling house and the land required for the convenient enjoyment of the dwelling house. As every holder of a plantation except European Planters will have in his possession some other land, the provision will in practice exempt only European planters. Perhaps, the framers of the Bill would not have intended that result. Anyhow, the provision must be amended so as to include all plantations whether the owners thereof own other lands or not.

10. The word 'plantation' is defined as land used immediately before 18th December 1957 for growing tea, coffee, rubber or cardamom or such other special crop as may be specified by the Government by notification. Plantations are excluded apparently on the ground that they entail a large initial expenditure and that they begin to give a proper return only after years of patient waiting. If that is the ground on which they are excluded we do not see why pepper plantations are dealt with" differently in the Bill. Pepper gardens require great initial capital outlay & have to be looked after with great care and attention. So pepper plantations also have to be exempted. There are some plantations in Kerala of fairly large extent where Vettiver and lemon grass are grown and it would be folly to place a ceiling on them especially so as they are grown only in Kerala and are earning dollar and other foreign currencies. We think that cashew nut plantations also should be excluded as they can be made profitable only if they are fairly large in extent. All the crops above mentioned are commercial crops of immense national importance and every step should be taken to increase their production It is also our considered view that efficiently managed farms which consist of compact blocks on which heavy investment or permanent structural improvements have been made and whose breakup is likely to lead to a fall in production should be exempted as recommended by the Planning Commission. In the case of cocoanut and areca nut planta­tions, the recommendations of the expert committees appointed by the Central Government should not be ignored and legislation should be on the lines recommended By them.

11. There is a provision in the Bill that for the purpose of calculating the ceiling area, lands which are not cultivable by ordinary processes of husbandry shall be excluded. The authors of the Bill, perhaps intended by this provision to exclude lands such as Kayal and kole lands But it is desirable to place the matter beyond doubt by expressly excluding such areas.

12. If there are any lands at all which ought to be excluded from the ceiling provision they are the extensive forests owned by private individuals in Malabar. It is surprising that no provision is made for this though the legislature has passed an enactment recently empowering the Government to take possession of private forests. Express provision must be made for the exclusion of forests as their existence is very essential for the good of the country.

13. It would be noticed that in the definition of plantation only those in existence on the 18th December 1957 are included. We fail to see the reason which actuated the framers of the Bill to restrict the exemption clause only to those plantations which were in existence on the 18th December. The considerations which influenced the authors of the Bill from excluding plantations in existence on 18th December 1957 must really apply to plantations that may be made in future also. Further, the restriction would prevent the formation of plantations hereafter and that would affect economic stability of the State. It has to be remembered that the plantations are mostly of crops which are earning dollar and other foreign currencies and without which the exchange problem will become most difficult for the Indian Union. In this connection it is noteworthy that the Central cocoanut, areca nut and cashew nut committees as also the Rubber Board have encouraged owners of waste lands to plant them with such trees and have advanced monetary help to such farmers. The Chairman of the Rubber Board recently stated that the Kerala Agrarian Relations Bill had come as a stumbling block to the proper expansion of the industry and that the industry would be crippled if the Bill was passed into law without proper saving provisions. We are therefore of opinion that the date mentioned in the clause defining plantation ought to be deleted.

14. Sec. 63 of the Bill prohibits all alienations by way of sale or gift effected by persons having more lands than the ceiling area after the 18th December 1957 and S. 64 provides that any land in excess of the ceiling area shall be surrendered to Government. We are of opinion that the absolute prohibition of transfers is not in consonance with the fundamental rights guaranteed by the Constitution. That apart, there does not seem to be any justification for imposing such restrictions on one's right to dispose of property The provisions for fixing, and payment of, compensation, for assignment of lands to landless persons and the payment of purchase price by them, and for the management of surrendered lands till assignment are very complex, will lead to favoritism and corruption and entail bickering and quarrels amongst persons throughout the country. Above all, the distribution of lands will take considerable time, say four or five years, and during this period food production will be impeded; and ceiling which is imposed mainly with the object of increasing food production will result in seriously impairing it if the cumbersome procedure envisaged in the Bill is followed. We therefore suggest that the landowners may be allowed two years within which time they may make any transfers or adjustments with the tenants or other persons that they deem proper & that the ceiling provisions may operate only on lands in their possession in excess of the ceiling area after the specified period. Such a provision will enable persons interested in the lands to make equitable adjustments between themselves and avoid friction and misunderstanding to a great extent.

15. Compensation provided for excess land is meagre and absolutely inadequate. The Bill provides that the compensation shall be 16 times the maximum fair rent. The lands are taken away from persons who are in actual possession and therefore in all equity and fairness the compensation that they are entitled to should be a multiple of the net income that they enjoy. The net income will be the income that one gets from the land minus the rent that he has to pay to his landlord if there is any. The multiple of the fair rent is the compensation that the landlord is entitled to and should have absolutely no relation to the compensation which the person in possession is entitled to get. The absurdity of the provision is shown in all its nakedness by the following illustration. A person is in possession of some wet lands which he himself has converted from dry lands and he is also in possession of the same extent of lands which the landlord has converted from dry into wet. The maximum rent that he has to pay for the former set of lands is 1/6 of the gross produce and for the latter 1/4 of the gross produce. On surrendering the lands to Government the compensation that he would get under the provisions of the Bill for the former would be much less than the compensation that he would get for the latter; or, in other words he would get less compensation for the land that he has himself made arable than for the land that the landlord has converted. It would be clear from the above that the authors of the Bill have bestowed little or no thought in fixing the compensation. Compensation should not be fixed as a multiple of the fair rent.

16. In fixing the compensation we think it best to fix it at a multiple of the gross produce. In the case of lands surrendered by the landlord the compensation shall be ten times the value of the gross produce and in the case of lands surrendered by the tenant the compensation shall be the same and to be apportioned between the landlord and tenant in proportion to the benefits derived from the land by each. The compensation based on a slab system as provided in the Bill appears to be inequitable as many of the persons in possession of lands are persons who have purchased lands paying the full market value. Our Chief Minister Sri. Nambudiripad has himself stated in his dissenting minute to the Malabar Tenancy Committee Report, 1940 that an amount of about Rs. 160 lakhs is being invested every year on land by new owners in Malabar. It would be an act of grave injustice to deprive them of such lands without any reasonable compensation.

17. The payment of compensation must be as follows:-- For persons eligible for Rs. 5,000 or less, 50% immediate cash payment and for the rest negotiable Government Bonds carrying interest at 4°o redeemable within 10 years. For persons eligible to get more than Rs. 5,000 for Rs. 5,000 as above, and for the balance negotiable Government Bonds of the nature above mentioned.

Fixity of Tenure, Resumption and Purchase of the Landlord's Interest

18. The next subject for our consideration is fixity of tenure. The lands transferred by a landlord for planting tea, cardamom, coffee or rubber or any other special crop specified by the Government, leases of buildings, and leases of land for commercial or industrial purposes are not within the purview of the Bill So also transactions relating to usufruct of trees. We find that lands transferred for felling timber are not specifically excluded from the Bill. They ought to be specifically excluded as was done in the Malabar Tenancy Act of 1929.

19. With the exceptions above mentioned fixity of tenure has been granted to all tenants who are in bonafide possession of lands. But the definition of the word 'tenant' given in the Bill is made to include a person who is a mere licensee. Thus an Odacharthdar who is stated to be only a licensee to cut bamboo, a punam or Kumri cultivator and a licensee in Kuttanad taluk and a varamdar are incuded in the definition. Odacharthdar and a licensee in Kuttanad taluk are mere licensees as the Bill itself states. A varamdar cannot be regarded as having any higher right. Punam or Kumri cutivation is defined in the Bill as fugitive or intermittent cultivation of waste lands in Malabar. Persons in such temporary possession of lands cannot be said to be tenants in bonafide possession. They are mere licensees and there is no necessity to give fixity 1o such persons.

20. As every bonfire tenant has got fixity under the provisions of the Bill, we do not see any necessity to classify certain tenants as permanent tenants and the provisions regarding permanent tenants should therefore be omitted from the Bill.

21. Resumption of land from a tenant is allowed under the Bill (i) for the extension of a temple, mosque, church or other place of public religious worship, (ii) for constructing a building for the landlord's own residence or for that of any member of his family and (iii) for the landlord's own cultivation or for the cultivation of any member of his family up to the ceiling extent.

22. There ought not to be any distinction made between persons in Malabar and those in T. C. area. The law respecting landlord and tenant must be the same throughout Kerala. Though the Bill gives a qualified right of resumption, the right is rendered absolutely illusory as it cannot be exercised against a person who before 11th April 1957 has been continuously cultivating the holding for not less than five years if the holding is in Malabar or ten years if the holding in any other part of the State. We understand that in Malabar eviction has been stayed since 1951 and therefore every tenant would have been continuously cultivating for more than five years and the provision for resumption therefore becomes absolutely illusory. In T. C. territory also most of the tenants would have been continuously in possession for 10 years as a result of the tenancy laws, in existence there. The five year plan categorically states that on general grounds resumption of lands for personal cultivation should be permitted. It says that tenancy legislation should operate to the advantage of the small owner where the economic conditions of the owner and the tenant are the same It also says that owners with very small holdings would be permitted to resume the entire area. The Bill has not attempted to give effect to the direct­ives of the plan.

23. We consider that there is absolutely no necessity to declare that on the appointed day referred to as the Peasants' day every permanent tenant shall be deemed to have purchased from his landlord the land held by him as tenant. (S. 40 (1). Nor is there any valid reason for declaring that where no application has been made for resumption of a holding or if any such application has been made and rejected, a tenant of that holding shall also be deemed to have purcha­sed. (S. 40(2). We feel that there is no justification for making a tenant a purchaser of his landlord's interest even without his consent. The purchase must be a voluntary act of his and should not be thrust on him. It may be that the tenant may find that it is to his advantage to continue as a tenant and it is difficult to understand why even in such circumstance the legislature should make him a purchaser and make him pay compensation. It is true that there is a provision for the tenant to make a statement on service of notice to him that he is not willing to purchase the land. It should be the other way about. The tenant should be allowed to purchase only if he expresses a desire to purchase the landlord's interest. To make a tenant a purchaser of his landlord's interest even without his consent is to disturb the amicable relationship subsisting between the parties and to create bad blood between them. In our view S. 40 should be deleted altogether and instead a provision may be made to enable every cultivating tenant to purchase the landlord's right on payment of reasonr able compensation, say twenty times the income that the landlord is at present getting from the land.

Fixation of Fair Rent

24. The question of fixing fair rent pales into insignificance when compared with the other matters dealt with in the Bill. If the landowner is asked to surrender lands in excess of the ceiling area and if the cultivating tenants are given the right of purchase, fair rents will have to be fixed only with respect to a comparatively small number of holdings. In our view fair rent should be 1/4 of the gross produce in respect of wet land converted into wet by tenant's labour and in respect of other wet lands 1 3rd of the gross produce. In respect of gardens containing cocoanut trees planted by the tenant the rent of 1 /8th of the gross produce would be fair. In case of cocoanut gardens raised by the landlord it will be equitable to fix the rent at 1/3 of the gross produce In the case of other gardens also the fair rent should be fixed in the manner above stated with some variations regarding hilly tracts like Wynad where a larger proportion of the yield will' have to be given to the tenant. There does not seem to be any valid reason for fixing maxima or minima for fair rents as shown in schedule I of the Bill or for empowering the Government by notification to fix the rates of fair rent applicable to lands in any local area subject to the maxima or minima specified in schedule I.

PORTUGESE POCKETS IN INDIA

A Study in International Law

(C. John Mammen)

Flash back into history—In 1948 A. D. Vasco da Gama arrived at Kozhikode and secured certain trading facilities from the Zamorin. By 1509 with Alfonso de Albuquerque at the helm they embarked on a policy of territorial conquest, fully exploiting the political intrigues among the South Indian Rulers. Albuquerque conquered Goa on November 25, 1510 and by the middle of the sixteenth century it became the established capital of "Portugese India".

Title by Conquest:—The Portugese claim of title to Goa by conquest is untenable. At the time of the conquest the 'Just War Principle' was current in International Law. Ayala basing himself on Roman Law advocates that the party waging an unjust war could acquire legal ownership in the men and materials captured. ''Though the Romans never began war save on just causes, their enemies who could not have just cause (for both sides could not have it) became owners even by Roman Law, of the property conquered by their enemies (Ayala De Jure et Official Bellini et Discipline Militari Libri III, I, II, 34, Pp. 22-23. Classics of International Law Ed. James Brown Scott, London, 1912.) "'. The fallacy of this view can easily be established. ''Just Cause" is a matter of opinion in the majority of cases, and ordinarily two parties go to war each with a 'just cause'. History has a knack of upholding the victor's cause as the just one, unless it is so prominent by its absence as in the case of Portugese Conquests. Still another facet of this 'Roman Illustration' that they conceded the men and materials captured by the enemy with an 'unjust cause is that they being the vanquished could not help it. At this point they were intelligent enough to impart the necessary flexibility to the law, so that they would not have had to watch in helplessness their law being ignored and disgraced by their victorious enemies.

Grotius opposes Ayala's view. He observes"............If the cause of war should be unjust all acts which arise there from are unjust from the point of view of moral injustice"(Grotius. De Jure Belli ac Pacis Libri Tres Vol. II Book III Ch. X. Classics of International Law, Ed. J. B. Scott. Pp. 718-19, London,1925.). He further points out that Ayala's views "not only lacks a rational basis but also incite men to wrong doing"(Giotius De Jure Praedae. Vol. I, Ch. XII, Pp. 112, Classics of International Law, Ed. J.B. Scott, London,1950). Oppenheim holds that territorial acquisitions in violation of an existing rule of customary or conventional International law are "tainted with invalidity and incapable of producing legal results beneficial to the wrong doer in the form of a new title or otherwise".(Oppenheim International Law, Vol. I. Pp. 142, 8th Ed. London 1955) But he proceeds further to observe that such an invalidity fan be condoned if other states recognize that territorial acquisition How the initial illegality could be wiped out by the complicity of other states -- even with the implied complicity of the victimized state -- is a point unintelligible.

Kelsen maintains that an annexed territory forms part of the victor's territory even if the war waged by the victor, against the vanquished was anillegal war. This principle is alleged to be based on "Effectiveness"(Kelsen, Principles of International Law, Pp. 214, London, 1953). If this view is accepted the doctrine of Prescription becomes superfluous and the International Code of conduct will turn out to be in accordance with the dictum 'Might is Right'. Also it is against the Charter of the U. N. which ordains that "All members shall refrain from the threat or use of force against the territorial integrity or political independence of any state"(Art. 2 (4) U N. Charter).

The only possible reasons the Portugese can advance for waging war are (a) for trading facilities and (b) for the propagation of Christian faith.

Since they were given ample concession and facilities by the hospitable native rulers, wars on that ground are ruled out. And waging war for religious conversion was unjust even according to International Morale of the sixteenth century

On grounds aforesaid the Portugese title to Goa was bad at the time of the conquests. But India cannot dwell at length on that point because this invalidity was corrected by long and continuous display of Portugese Sovereignty in Goa (See the Island of Palma's Case. Permanent Court of Arbitration (192S) No XIX. Extracted in Green's International Law Through the Cases, Pp. 350, London, 1951). The Government of India cannot raise the contention that the prescription did not run against the new Republic of India which is of recent origin, for the important ingredient in prescription is time and not the party against whom it runs.

Cultural and Religious Influences. --Sixty one percent of the population in 'Portugese India' profess the Hindu faith, only thirty six percent are Catholics (Portugese Official Statistics, Lisbon, 1951, quoted by Mr. Nehru, The Hindu, Pp. 5, Col, 8, July 26, 1955.). Even this percentage of Catholics is principally the fruit of -- or rather the result of -- the missionary works of St Francis Xavier, S.J. and others backed by the sceptor of sovereign political power. In spite of all this "These Christians of Goa still largely adhere to caste distinctions, claiming to be j Brahmins, Kshatriyas and Low Castes who do not intermarry"(W. W. Hunter, Imperial Gazetteer of India, Vol. XII, Pp. 258, Oxford, 1908.)

The Pope has agreed with Mr. Nehru at the Vattican that the Goan Problem had nothing to do with religion. (Keesing's Contemporary Archives 1955-56 (14372-A).

Pretensions to stick on to Goa for safeguarding the religions and cultural heritage of the population are flimsy since the Constitution of India specifically guarantees the religious and cultural interests of the minorities (Constitution of India. Arts. 29 (lj and 30 (1)).

INDIAN CLAIMS

I. Geographical Contiguity.—Dr. Salazar proclaims "we hold a nation to be distinct and separate social aggregate regardless of their geographical position.... We area judicial and political unit" (Dr Antonio de Oliveira Salazar, Doctrine and Action Pp.178, Lisbon,1939). Ordinarily a state is composed of a single block or adjacent blocks of territories. But to have another state right in between two parts of a state is an unusual phenomenon. So is the case with Pakistan with India dividing it, and Prussia just after World War I, with the Polish Corridor running right through its territory dividing it into two. It was but a narrow strip of land. Yet as to Germany's eastern frontiers with the Polish Corridor she refused to accept it as final. It has been a bone of contention between Poland and Germany (Greenan and Gathany, Units in World History. Pp. 558 & 75s London,1946). So the general concept is that various provinces of a state are almost invariably to be found adjacent or at least very close to each other. But to have thousands of miles between a province and the state is a preposterous notion, and to maintain that Goa is part of the Metropolitan Territory of Porugal and not her colony -to avoid the provi­sions of the Charter which brings the colonial world generally within the sphere of International responsibility(Journal of the General Assembly No. X, Pp. 249. New York, 1955) -- is fantastic. It is against all concepts of geographical contiguity and symbolises nothing but the diplomacy of Power Politics. In fact these enclaves represent age old ulcers on the geographical entity of India. It is a task ahead to cure it.

2. Nationality.-- Ethically Goans are undoubtedly of Indian stock and Portugal is tactful enough to leave that issue untouched. In 1955 the U. S. Secretary of State pronounced "All the world regarded Goa as a Portugese Province" and that he believed "they were under the Constitution of Portugal and the residents of these areas enjoyed the full rights of Portugese citizens"(John Foster Dulles The Hindu. Pp 6, Col 5, December 7 1955). Conceding his wisdom and honesty on consideration of the ratio population between Portugal and her over sea colonies about fifty-five percent of the seats in the Portugese Legislature should go to representatives from overseas(World Book, Vol II, Pp 3505, New York, 1954). This is hardly the case. So conferring of Portugese nationality on the natives of the colonies is no, better than a farce.

3. Security.-- Portugal like Pakistan is a member of various military alliances. She is a member of the NATO. In a situation of International emergency, Goa might overnight be transformed into a military base of a group of foreign states. In this age of ballistic and nuclear weapons, no state can reasonably contemplate such a contingency with complacence. It is a matter vital to the self-preservation of India. The crux of the issue is that tolerance of these pockets might create a situation of great insecurity for India.

4. Economic Implications -- If Portugese Goa is militarily a potential danger to India, economically it has been a perpetual parasite. Goa is a bootlegger's paradise. Large scale smuggling is a "big industry" over there. The prohibition in Bombay is jeopardized by Goa. Exorbitant smuggling defeats Indian interests and adversely affects the economy of the state.

Dr. Salazar asserts that Portugal's claims of sovereignty over her colonies was guaranteed by the Anglo-Portugese Treaty of 1373 and also by Art. 4 of the North AtlanticTreaty ''This engagement (Anglo-Portugese Treaty) has lasted now for nearly six hundred years and is without parallel in history'"(Winston S. Churchill, The Second World War, Vol V, Pp 147, London,1952 Article 1 of the treaty of 1373 runs as follows:-

"In the first place we settle and covenant that there shall be from this day fonvard...........true, faithful, constant, mutual and perpetual, friendships, unions, allian­ces, and deeds of sincere affection, and that astrue and faithful friends, we shall hence­forth, reciprocally be friends to friends, and enemies to enemies, and shall assist, maintain and uphold each other mutually by sea and land against all men that may live or die").The fact is this is an outdated and time-worn Royal treaty devoid of all its life and luster. As late as on November 14, 1957, the High Commis­sioner of U. K. in India stated "...............though Portugal is a member of the NATO, U. K. is not bound to help her in her quarrel with India. No such provision existed in the Pact"(Malcolm Mac Donald, Speech at Kozhikode, The Hindu, Pp. 9, Col. 4, Nov. 171957). In 1954 Mr. Nehru pointed out that NATO has no application to Goa since it was an alliance for the Atlantic Communities (Mr Nehru, Loksabha Proceedings, May l5, 1954; Loksabha Debates, Vol. V, Pp 7508 (Loksabha Secretariat Publication) New Delhi, 1954).

India attempted to solve the issue by peaceful negotiation. But when it was actually felt that Portugal does not see the writing on the wall, and is reluctant to copy the example of France in conceding their Indian territories, India closed her legation in Lisbon, and subsequently demanded the closure of Portugese legation in Delhi. Meantime Nationalist movements in Goa gathered strength. The Nationalists liberated two small enclaves Dadra and Nagar Haveli. Consequently the Portugese suppressed civilian rights and began a reign of terror and persecution in Goa. India more than once declined to accede to requests from local authorities to take over the liberated enclaves. They are being administered at present by authorities organized by the local population (M.C. Setalvad, at the International Court of Justice, the Hague, Hindu, Pp. 4, Col 5, Oct. 9, 1957) But India refused Portugal the right of way to her liberated enclaves And against this Portugal instituted a suit at the International Court of Justice. The suit is still pending.

The Indian Defence Minister declared in the U N. General Assembly.

"......Inhabitants of India cannot be Portugese any more than a tiger can be a vegetarian. It is an insult to the intelligence of the Assembly to suggest that parts of foreign occupied territories can be an integral part of the Metropolitan country.....There is no question of these men having rights of ordinary human beings in Goa........ Goa is the last remnant of imperialism in Asia.........the dictatorship of Portugal will fall before the onslaught of freedom. For us it is a social nuisance being the last smuggling centre (V. K. Krishna Menon, Speech at the U. N. General Assembly, The Hindu, Pp. 4,Col. 4, Oct 10,1957).

The concept of Law and Justice changes with the times. Divine right of Kings and notions similar, are being discarded by all civilized states- The doctrine of Social Justice and the Socialistic Pattern of Society is gaining ground. Only the consolidated weight of world opinion seems to be the possible kick to wake up Portugal into the latter half of the twentieth century.

A NOTE ON 1958 K L. T 130

(K. A. Venkitaswaran, Advocate, Trichur)

(1) In this writ application, an order of the Collector of Customs, Cochin (R4) was sought to be quashed. It was negatived by the Hon'. High Court on [the principal ground that the impugned order has merged itself when it was taken on appeal to the Collector of Customs, Madras (B), which in turn was confirmed on revision by the Govt, of India (c), the latter two authorities being outside the jurisdiction of the High Court. But is the assumption that R4 merged itself when B and C were passed correct?

(ii) In A. I. R. 1958 S. C. 86, Their Lordships of the Supreme Court had to consider whether a departmental order passed on April 20, 1948 confirmed in appeal on June 7, 1949 and again confirmed in revision on April 22, 1950 will attract the provisions of the Constitution. The majority took the view that it will not on the sole ground that the order on April 20, 1948 did not merge itself in the later orders in appeal and revision: Their Lordships opined that such orders "Can hardly be equated with any propriety with decrees made in a Civil suit under the Code of Civil Procedure by the Court of first instance and the decree dismissing the appeal there from by an appeal Court and the order dismissing the revision petition by a yet higher Court as has been sought to be done by the High Court in this Case, because the departmental tribunals of the first instance or an appeal or revision are not regular Courts manned by persons trained in law although they have the trappings of the Court of law. In the next place, while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal there from or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for the execution of the decree, or for computing the period of limitation for an application for final decree in a mortgage suit. Whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective". Their Lordships allowed the appeal on the narrow ground that the Constitution had no retrospective effect and did not touch the order passed on April 20 1948. It was not suspended nor its operation interrupted by the presentation of the appeal or revision both ending in dismissals. "The original order of dismissal, if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned.'

(iii) Such being the law, even though under the Sea Customs Act the Collector is deemed to act judicially, it is only a tribunal having the trappings of the court of law. Even in appeals and revisions under the Civil Procedure Code, the theory of merger has been explained and is limited to the two specific purposes mentioned above. Hence it is submitted that the above decision requires reconsideration.