• Black-listing and the Law 

    By Abraham P.C, Advocate, Ernakulam

    14/01/2019

    Black-listing and the Law

    (P. C. Abraham, M.A-, M.L, Advocate, Ernakulam)

    With the increase in Governmental activities, now the State frequently enters into agreements with private parties for procuring supplies and also for executing works. For this purpose, Government invites tenders from traders and contractors. Though the economic interest of the State demands encouragement of competition, at times, the State may debar a person from competing for a Government contract. This is often done by putting a trader's name in a blacklist. More often than not, this debarment may have something to do with the antecedent conduct of the trader. But he is seldom given notice or an opportunity to refute the charges against him. Here the point to be considered is whether the State can black-list a person in violation of the 'audi alteram partem' principle.

    That black-listing will have serious consequences to the individual concerned cannot be denied- Even private parties may not enter into financial arrangements with a person whose name is in the Government's black-list. At one time there was a feeling among lawyers that Government contracts of the type mentioned above were only "privileges" and the citizen had no 'right' for them. Echoes of the same can be seen in many of the Indian decisions, ((a) Bhaskaran, V- State of Kerala 1958 KLT. 334

    (b) C. K Atchuthan v. State of Kerala 1959 SC 490

    (c) Vedachala Mudaliar v. Divisional Engineer, AIR. 1955 Mad- 335) Now, there is increasing recognition among jurists of the principle that the administrator is bound to observe rules of "fair-play" even while conferring or denying a 'privilege'. Walter Gelhorn says: (As quoted in 1968 KLJ 618 at 629)

    "A privilege is not something to be dealt with lightly. Much of modern life, it may said, depends on the continued enjoyment of a privilege such as a job with Government or receiving a pension payment, or retaining an occupational license or remaining in the country one has chosen for his home. The deportation of an alien, Justus Brandeis once realistically declared not only deprives the alien of his liberty, but 'may result also in loss of both property and life; or all that makes life worth living-' can a modern society happily allow decisions of such gravity to be made in terms that are unchallengable because the term need never be fully revealed?"

    Kenneth Gulp Davies says (Kenneth Culp Davies "The Requirement of Trial-Type a Hearing Harward Law Review Vol 70 p. 196 at 225)

    ".........Similarly one who has no right to sell liquor, in the sense that the State May prohibit the sale of liquor altogether, may nevertheless have a 'right' to fair treatment when State Officers grant, deny, suspend or revoke liquor licenses. The State need not grant any such licenses, but if it does so, it must do so fairly without racial or religious discrimination and without unfair procedure."

    "The fundamental proposition, stated abstractly, is that some kinds of unfairness are deemed deserving of judicial relief even when they appear in a context of privileges or gratuities. This proposition appears frequently in judicial opinions''

    "Even though one may have no right to a Government gratuity, one may have right to be free from damage to reputation or position that may result from withholding of a Government gratuity in some circumstances".

    A Full Bench of the Kerala High Court had to consider the problem of blacklisting in Punnen Thomas v. State of Kerala (1968 KLT. 800) In this case, the Govern­ment had passed an order (not communicated) the petitioner to black listing the petitioner and another tendered from taking any work with the Government for ten years, as these persons had, according to the Government, committed irregu­larities in connection with the tender for working down timber from a certain area. In the counter affidavit filed by the State, it was further submitted that the petitioner was found to be "dishonest and undependable" because of the irregularities and so his name was put in the Black list. The petitioner submitted that he had not committed any irregularity in connection with the tender and that the memorandum had been passed without notice and an opportunity of of being heard. Reclaimed the liberty, like any other citizen, to offer tenders for Government work and take the chance of their being accepted by the Govern­ment, if they happen to be the lowest ones- His case was that the order black­listing him was violative of the principles of natural justice and of articles 14, 16(1) & 19(1) of the Constitution.

    The majority opinion proceeded on the basis that the petitioner's civil rights were in no way affected by the passing of the impugned order The Court did not think that this case can be brought within the horizons of natural justice, even after Ridge v. Baldwin (Ridge v. Baldwin (1963) 2 All E. R. 66)) and State of Orissa v. Binapani Dei (State of Orissa v. Binapani Dei   AIR. 1967 S.C. 1259) Raman Nayar, Ag. C. J. (as he then was,) observed (on behalf of himself and Eradi J.)

    "......But here, there has been no determination of any question and, as we have

    said more than once, no interference or threatened interference with the peti­tioner's civil rights. Surely, the term, 'civil consequences' means something more than consequences which the person concerned does not like. There must be at least the possibility of an invasion of some civil rights of his before it can be said that anything done in respect of him has civil consequences."

    It was argued on behalf of the petitioner that as the order casts a stigma that by itself would attract the principles of natural justice Their Lordships repelled the argument by saying

    "The question whether an impugned act involves a stigma or not, is relevant only for the purpose of determining whether the act sounds only in the region of contract or involves a punishment attracting the rules of natural justice or statutory provisions such as article 311 of the Constitution embodying such rules".

    Towards the end of the penultimate paragraph of his judgment Raman Nayar Ag C. J. posed a problem. His Lordship asked:

    "Supposing a police officer were to give as a reason for arresting a person that the man was drunk and disorderly. Surely the statement that he was drunk and disorderly would affect his reputation, and what is more unlike as in the present case, the arrest would clearly involve civil consequences But could the arrest be denounced as unlawful and could the police officer be exposed to action civil or criminal merely because he had reached the conclusion that the man was drunk and disorderly, without observing the rule of audi alteram partem?"

    It is submitted that the problem posed is not akin to the one at hand. In the case of an arrest, a judicial enquiry will follow, whereas in the case of black­listing, the-adverse ex-parte adjudication by the administrator is final and the individual affected has no other remedy. The former, it is submitted, is more like the summary suspension of a license, pending enquiry.

    Mathew J. in a powerful dissent highlighted the peculiarities of the case of black-listing.  His Lordship said (1968 K.L.T. 800 at 808)

    "It is one thing to say that Government like any other private citizen, can enter into contract with any person it pleases, but a totally different thing to say that the Government can unreasonably put a person's name in a black-list and debar him from entering into contractual relationship with the Government for years to come- In the former case, it might be said that Government is exercising its right like any other private citizen, but no democratic Government should with impunity pass a proceeding which will have civil consequences to a citizen without notice and an opportunity of being heard. The reason why the proceedings for black-listing the petitioner and debarring him from taking Government work for ten years was passed, is that he committed irregularities in connection with the tender of the contract work. In the counter-affidavit on behalf of the State it is stated that the petitioner was found to be "dishonest and undependable" because of the irregularities and so his name was put in the black-list. The question whether he committed irregularities in connection with the tender is a question of fact. An ex-parte adverse adjudication that the petitioner committed irregularities in connection with the tender for working down timber from Udumbanchola Block No. 1 by Government on the report of some petty officers without notice and an opportunity of being heard to the petitioner and putting his name in the black-list dabarring him from taking any Government work for ten years' by way of punishment, appear to me, to be against all notions of fairness in a democratic country".

    Mathew J. drew an analogy from the position of a 'temporary' Government servant. Though the 'temporary' Government servant has no right to continue in service, when the Government terminate his services for a reason that casts a

    (7) stigma on his reputation, the employee gets the right to notice and an oppor­tunity of being heard. His Lordship said "I would and, the fact that one may not have legal right to enter into contractual relation with Government does not mean that he can be adjudged ineligible to take up any Government work, illegally".

    His Lordship, therefore held "As the memorandum in question casts a stigma on the reputation of the petitioner, which is both an interest of personality and substance, and is attended with civil consequences to the petitioner, and as it operates as a punishment for an alleged irregularity, I, think the memorandum should have been preceded by notice and an opportunity of being heard". The Government, according to Mathew J. is not and should not be as free as an individual in selecting the recepients for largess. "Whatever its activity", 'His Lordship declared, " the Government is still the Government and will be subject to restraints inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal".

    A similar case of blacklisting came up for consideration before the Delhi High Court in Mahaveer Hat Manufacturing Co Ors v. The Union of India.(Mahaveer Hat Manufacturing Co. & Ors. v. The Union of India (1969)71-P. L. R.D1 p. 334) That was a case in which the petitioner firm was blacklisted on the advice of the Special Police Establishment, who investigated certain complaints against the firm. The order blacklisting the firm was kept a secret from the petitioner, though it was communicated to various departments. Arguments based on V. Punnen Thomas v. State of Kerala were addressed before Mr. Justice S Rangarajan who heard the writ petition. The learned Single Judge however followed an earlier unreported decision of the same court in K G. Khosala & Co. v. The Union of India (K. G. Khosala & Co v. The Union of India C. W. No. 477 of 1969) wherein it was held by Kapur and Tatachari JJ. that an order of black-listing which involves serious consequences could not be passed without opportunity being given to the person affected by the said order.

    There is a conflict of judicial opinion on this point which needs to be settled. Cases of this nature are likely to arise in future also. In a country like ours, where we do not have an administrative court of Appeal like the French Conseil D'etat it may not be judicious to decline relief to petitioners in cases of this type. Later cases of this court, (Ibrahim Kunju v. State of Kerala 1969 KLT. 230) the Supreme Court (A. K. Kraipak v. Union of India AIR. 1970 S. C. 150) and the Queen's Bench (R.V. Senate of the University of Aston, Ex.-parte Roffey and another 1962 All E. R. 964) on natural justice make one think that cases of black-listing will soon be held to come within the horizon of natural justice.

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  • LAW OF ATTEMPT

    (Published in 1958 KLT)

    By N. Parameswaran Nair, Advocate, Ernakulam

    14/01/2019

    LAW OF ATTEMPT

    (N. Parameswaran Nair, Advocate. Ernakulam)

    Nowhere in the Penal Code is a precise definition seen though there is a special chapter dealing with "Attempts to commit offences". The import of the word attempt has to be gathered from the illustrations appended to Section 511. I, P. C. Illustrations give a wide range of meaning to attempt. In India many acts entitled to no consideration in other countries fall under the category of attempts and are punishable.

    In the commission of a crime there are four stages. At the very outset an intention to commit a crime, in pursuance to which preparations are made, then an attempt by an act of commission or omission culminating in the final stage of the execution of crime. Of these stages intention is not punishable under I. P. C.—possible exception being conspiracy under S. 121-nor are preparations for offence penalised.

    When we come to the third stage the clutches of law trap the offender. After intending to do a crime one prepares and does some overact or acts to wards its commission. These acts constitute attempt. Attempt may thus be defined as act done with intent to commit a crime and forms part of a series of acts which would constitute its actual commission if it were not interrupted. It is difficult to know where a iven act passes from preparation to attempt.

    American rule is that an attempt can be manifested by acts which would end in the consummation of the offence but for the intervention of circumstances. This is not a safe criterion. It is enough to bear in mind that the difference between preparation and attempt to commit an offence "consists chiefly in the greater degree of determination present in attempt".

    A with the intention of committing theft and housebreaking in B's house provides himself with the implements of burglary and leaves his house at midnight. He arrives at the back door of B's house and thrusts a key into the keyhole to open the door. A has committed no offence till he arrives at B's house. But as soon as he puts the key into the keyhole he attempts to commit housebreaking and therefore is guilty. Attempt is made an offence punishable because the tendency of attempt is to create alarm which is an injury and the guilt of the offender is the same as if he had actually committed it.

    A close scrutiny of the subject will reveal that in every attempt there are three elements, an evil intent, a simultaneous resulting act and effect. The intent must be specific and must last till the last act has been done. If one gives up the prosecution of the offence after some stage he will still be responsible.

    In assessing criminal liability the law has not been uniform. It may be that the attempt may consist of an act or part of series of acts. In cases where the act forms part of a series of acts which of the act is punishable? According to Indian Law any act done towards the commission of the crime is punishable. In other countries the final act alone is punishable. An attempt is to do that which if successful would amount to the offence charged—Suppose the completion of the crime is prevented by,

    (1) Physical impossibility,

    (2) Some unforeseen circumstances,

    (3) Mistake of offender

    (4) Voluntarily desists from further prosecution. In the above cases is the offender criminally liable ?

    Concerning the first case that is where the completion of the crime has all along been physically impossible S. 511, I. P. C. shows that in India a man may be convicted. The law is not definite. The various High Courts differ from one another. Where the commission of the crime is a failure owing to unfore­seen circumstances there is such divergence of opinion that the laws of no two countries are alike. In India this differentiation is entirely overlooked. In other countries "an attempt is only punishable when the same is manifested by acts which constitute a commencement of the execution and when the consummation is hindered only by circumstances independent of the will of author''.

    If the offender mistakes one thing for another and hence the successful commission of the crime cannot be effected is he liable? The Indian law will not exempt him. In all other countries excepting America the law is that he is not liable. Probably the liability in Indian Law is accounted for by the fact that it is more conducive to public safety.

    Let us consider the case where the party making the attempt desists from further prosecution. Indian cases have laid that the offence is indictable and that desistance is immaterial. It has yet to be seen what solution the authorities will give for the following case.

    P. with intent to commit housebreaking in B's house provides himself with implements of burglary goes to B's house and opens the door. Inside the house a severe altercation has already entered with B and two ruffians who have come there and who are now bent on killing B. P at once rushes to the rescue of B. Has P committed an attempt to house-break. P pleads that hearing the cries of distress he entered in?

    The case law on the subject of attempt to commit offences are poor and even the cases on record are not now in conformity with one another. The “attempt" to commit the offence is as important as the offence itself and it is strange that the Legislature has not made ample provision for the due understanding of the meaning of the word attempt. The two illustrations appended to Section 511 are all that are given. The difficulty has been all along felt by the Judges of the various High Courts in India. Criminal liability in attempt is left to be decided according to equity, justice and good conscience and not from any provision in the Indian Penal Code.

    It is earnestly hoped, that when the Indian Legislature next akes up the Criminal Law for amendment, a clear and concise definition of "attempt" be introduced in the Penal Code so that all existing difficulties my vanish and Indian Law may be brought in conformity with that of other countries of Europe and America.

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  • The Pious Obligation of the Hindu Son. A Propm of a Judicial Attack on the Institutiona

    By J. Duncan M. Derrett, D. C. L., Professor of Oriental Laws in the University of London

    14/01/2019

    The Pious Obligation of the Hindu Son.

    A Propm of a Judicial Attack on the Institution

    By

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

    Professor of Oriental Laws in the University of London

    Though I may not be the ideal person to say this, I think most people will agree that Indians are very sensitive to criticism and to criticism of their institutions, especially if the criticism is of a self-assertive type. Mr. Justice Y. R. Krishna Iyer has given voice to original and unusual opinions, in season and out of season, as readers of Kerala Law Times are well aware. There is no reason whatever why judicial opinions should be dull and lifeless, and the High Court at Ernakulam is evidently blessed with lively and original minds, not afraid to speak out when the occasion suggested. For myself, I have a particular liking for judicial pontifications, and I advise students to treasure them: pontifications show which way the wind is blowing, which is not always the case with the bare decisions themselves. In a comparatively recent case about a Muslim woman who wanted arrears of maintenance under S. 488 of the Criminal Procedure Code (1970 K.LT. 4) Mr. Justice Krishna Iyer said some hard things about the Muslim law relating to polygamy; and many might think that in so doing he exceeded his function. Many would think (and I join them) that the Muslim law relating to polygamy is in need of reform. Many would agree that one method of doing this is to persuade Indian Muslims that although they have thought for thirteen hundred years or more that the Koran allowed them to have four wives at a time, they were really mistaken and that a correct interpretation of the Koran by no means leads to this conclusion but rather tends to advise and exhort Muslims to be monogamous. Many would think that judicial pontifications exhorting the Muslims to reform themselves could do no harm, fitting, as it does, the point of view of the vast majority of the population- But there again, there would be many (and I join them) who feel that a Hindu judge should not go out of his way to condemn in opprobrious terms (though amusing language) system of law which is protected by the Constitution, and which has not yet been amended by the legislature. I think if a Muslim judge did this obiter it might be rather a different matter He would be talking about his own things, matters in which he had a stake, and about which he can be presumed to have informed himself maturely. Even so, I should be prepared to offer the advice for the future (of course quite gratuitously) that obiter dicta should avoid quips of a derogatory nature, however wide the circle of individuals who would agree with the learned judge's viewpoint- Now the matter arising here is a Hindu matter upon which the Hindu judge's opinions will surely be listened to with greater patience and interest.

    The decision in Unnooli alias Kuttimulu v. Theyyu 1969 KLT. 963 was, with respect, obviously correet. Kumaran started a Kuri or Chitty and used the subscriptions for family purposes. When he died the Kuri owed money to the plaintiff, and the plaintiff, attempted to get it from Kumaran's family, or alter­natively from his son's interest in family property under the Pious Obligation. Against the first contention the objection on behalf of the family was that one cannot make a Kuri family property, and its debts family debts, by mere merger, since one cannot merge something speculative. One can only merge something which is positively beneficial And Kumaran cannot be taken to have merged it merely by using the fund for his and his family's purposes. To the second and alternative plea the answer was that, even if the Pious Obligation applied, the Kuri was tainted, since lotteries are illegal. However this was repelled by the learned judge on the basis that this particular type of Kuri was not tainted by illegality. And thus the principal remaining question was whether the Pious Obligation applied to the sons of Kumaran.

    Now the community were Thiyyas of Ponnani. Did the Mitakshara law apply to them? And if it did, would the Pious Obligation apply along with it? In Dharmodayam Company v. Balakrishnan 1962 RLT. 712 the Kerala High Court had held that the Pious Obligation did not apply to the Thiyyas of Calicut, the reason being that polyandry once prevailed amongst them, and thus the Pious Obligation (being an institution of Hindu law associated with patriliny) would be anomalous. This case was sent back, however, to the trial court to find out whether as a fact the defendants would be liable (as Thiyyas of Ponnani) to answer the plaintiff's debt under the rule of the Pious Obligation. Whether or not the customs of the Thiyyas of Ponnani would be recovered sufficiently from decided cases, if these could be reviewed conveniently, is not clear; but it remains to be seen whether this fact can be established in this very case, the burden of proof of the applicability of the Pious Obligation naturally remaining upon the plaintiff.

    But as a guide to the approach which should be followed Krishna Iyer, J ,made the following remarks, upon which I hope I may be permitted to comment.

    "There is a widely accepted belief that Tiyyans came to the west coast of India from the Island of Ceylon If they crossed the seas and settled here they must have carried with them their island personal laws which certainly would not have included the Dharmasastras of the Vedic Aryans. In any view, the non-Brahmins of Kerala, more so the Thiyyas, are likely to have been somewhat impervious to Vedic influence in regard to social practices and legal theories based thereon. The big social gap that must have existed between the Tiyya community and its practices on the one hand and the Brahmin community and the Dharmasastras on the other, in the early days when the persona' laws s now applied by the Courts are supposed to have crystallised, makes the applicability of Hindu Law, proprio vigore, unlikely. Why, the Malayala Brahmins, i. e. the Nambudiris whom, as a superior class, they might have copied, themselves had eschewed the rule of pious obligation. The Ezhavas of Palghat, by contrast, were living in the midst of Tamil Brahmins and had probably adopted as custom, their rule of pious obligation."

    Briefly, there is no evidence that Thiyyas came trom Ceylon. The established legal historians of Ceylon, amongst whom Dr. H. W Tambiah, Q C, is to be accounted amongst the foremost, having considered the elements in Ceylon law which are not consistent with pure patriliny such as might have been acquired by way of immigration from India, and having considered the Mukkuva community, which is a fisher-community with a history of polyandry and matriliny, have concluded that there were several immigrations from South India, but notably from the Malabar coast. There is no suggestion that there was any immigration into Malabar from Ceylon. That fisher-folk populated both regions, and that their customs should be similar, will have puzzled no one: but this is the first time I have heard that there might have been any immigration from Ceylon into India. Next, it is a principle established for a very long time that the application of Hindu law does not depend upon any historical fact of acquisition of Vedic customs or Aryan ways. Unless a community is held to be governed primarily by custom it must be governed by the Anglo-Hindu law (as amended by statute) unless a valid custom can be proved effectively to derogate from it. In the case of the castes of Malabar each caste stands upon its own fees here, there being no presumption that Hindu law applies. It is well known that castes with a matrilineal or bilineal (or bilateral succession) back-ground can follow the Mitakshara law as their custom; but it must be proved in each case (unless the court is entitled to take judicial notice of the point) what the custom is. Thus it was perfectly correct not to decide the matter on a mere balance of probabilities when direct evidence had not yet been sought without success. His Lordship's quotation from Battukkaval Chakutti v. Cothembra Chandukutti AIR. 1927 Mad. 877 seems perfectly correct, adequate, and compelling.

    As for the Nambudiris the position is, as explained by the learned judge at pp. 970-1 of the judgment, that the Pious Obligation was denied in that community simply because, and to the extent that, the interests of sons could not be distinguished for the purpose of attachment and sale for debt. After freedom of partition had been introduced by statute and with it the possibility of alienation of undivided interests it was too late in the day to import the Mitakshara notion that the father could alienate his sons' undivided interests. It is not the case that Nambudiris do not believe that they must pay their father's debts: it is a question solely on a particular judicial remedy known amongst Mitakshara Hindus not being extended to them.

    His Lordship says at p. 972 that those who wish to rely upon the Pious Obligation, where the caste is not normally governed by Mitakshara law must prove that it is applicable to them as their custom, and this seems absolutely unexceptionable. I now pass to the passage (para. 15) which is the real occasion for this article of mine.

    "Before parting with this subject, I would like to observe that the Hindu Code, which encountered opposition and was eventually withdrawn in Parliament, did contain a clause (clause 88) abrogating the rule of pious obligation for all Hindus. The theological foundation of the moral duty of the son to discharge his father's (and not any other relation's) debts has now lost much of its appeal. In this context, particularly when the Constitution directs the State to have a uniform Civil Code for all Indians, it is a matter worthy of serious consideration whether the rather obsolescent rule of pious obligation should be extended by the Courts to all the non-Brahmin Makkathayees of Kerala. Although these considerations are largely for Parliament and not for the Courts they may serve to understand whether the Thiyyas of South Malabar had really assimilated this rule as custom."

     

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  • A NEW PHASE IN INTERNATIONAL LAW

    (Published in 1958 KLT)

    By T.G. John, Advocate, Thrissur

    14/01/2019

    A NEW PHASE IN INTERNATIONAL LAW

    (T. G. John, Advocate, Trichur)

    With Russian Sputniks and American Explorers beeping and orbiting round our good earth, this geophysical year has heralded a new phase in international law. While the scientist is busy gathering information about cosmic rays, magnetic fields, atmospheric pressure etc., at the same place at the same time, so that they can establish the relationship among all these phenomena at any given point in space, President Charles S Rhyne of the American Bar Association and several statesmen like Sir Leslie Munro of New Zealand have already proclaimed the need to adapt international law to this space-age. According to them, it is not too early for jurists to ponder some rules of law for this vast new arena of human activity.

    Space is a new frontier for mankind. Promethean inspirit, the conquest of space is first of all an adventure of the human will and brain. For the air age lawyers worked out a doctrine that treats the earth's atmosphere like national coastal waters But where the atmosphere becomes too thin to support aircraft, there or thereabouts begins space. And there must begin space law -- or else chaos in the firmament.

    The problem is not without precedents. As regards the law of the seas, up to the first half of the middle ages navigation on the open sea was free. Ulpian declared the sea to be open by nature. Calsus declared both the sea and air as being common to all mankind. ''I am the master of the earth but the law is the mistress of the sea" said Emperor Antonius. The German emperors who were considered successors to the Roman emperors assumed title of the 'King of the Ocean'. The latter half of the middle ages marks the beginning of claims being made over parts of the open sea At the time of the birth of international law several States were really asserting claims over certain parts of the open sea. Spain claimed sovereignty over the Pacific and the Gulf of Mexico while Portugal made claims over the Atlantic, South of Morocco and the Indian Ocean. Great Britain claimed sovereignty over the Narrow Seas, the North Sea and the Atlantic from the North Cape to Cape Finisterre. These claims were asserted for several hundreds of years. With the growth of expeditions for discovery of unknown lands this idea of sovereignty over the open seas by the several States had to be gradually abandoned. When the Spanish ambassador Mendoza objected to the expedition of Sir Francis Drake, Elizabeth I stated that vessels of all nations could navigate on the Pacific since the use of the sea and air is common to all. Twenty-nine years after Elizabeth I, in 1609, Grotius, the great, authority on international law in Mare Liberum declared that the sea was free by nature because it is incapable of occupation. The writers of the eighteenth century championed the cause of the freedom of the open sea dividing the sea into maritime belt and open sea. Great Britain gradually began giving up her claims over parts of the open sea and soon emerged as a great upholder of the principle of the freedom of the open sea. This had to be done by Great Britain because she had the biggest navy. "The last ditch of the battle for the freedom of the open sea was fought and won in the award that was given against the claim of the United States over part of the open sea in the Behring Sea Arbitration Case in 1893" (Arunachalam—Modern International Law). The blue water is what international lawyers call res communis-common property. In Geneva this year lawyers from eighty-seven nations are codifying and updating the law" of the sea., cornerstone of civilization.

    As regards aerial navigation, as soon as hostilities of 1919 were over and normally was resumed, no time was lost by the interested nations in meeting to­gether in a convention at Paris in October 1919, for the purpose of formulating some definite rules for the future of aerial navigation. Twenty-nine States, big and small of both the hemispheres solemnly signed the conclusions that were made at that historic meeting. The main conclusion arrived at was that a State had complete sovereignty in its superincumbent air space to an unlimited space subject to the right of innocent passage for foreign non-military air-craft akin to the right of innocent passage of merchant ships through territorial waters of other countries. Closely following upon the heels of the Paris Convention came the convention at Madrid in 1926 ratifying the conclusions of the Paris convention and in the other hemisphere, the Pan-American convention at Havana in 1928. "Air navigation is now regulated by (1) The convention for Regulation of Aerial navigation, 1919, with its amending protocols, (2) Bilateral and Multilateral Conventions supplementing the convention oi 1919. (3)Customary international Law. These documents recognize that every State has complete and exclusive sovereignty in the air-space above its territory and territorial waters. Freedom of innocent passage for private air-craft of other parties who comply with the rules is guaranteed subject to reservations on ground Of military and public safety reasons". The Lucrene European Broadcasting Convention of 1933, accept the principle of exclusive sovereignty in the air space of a State for purposes also of transmission of wireless waves.

    When the Russians announced their intention to put up their Sputniks to orbit in space past the territories of many nations, they asked nobody's permission. Neither did the U. S before launching Explorer. Why try to claim Space that never stands still over any country? It is in this spirit that Congressman Kenneth B. Keating of New York rightly urges the "U. S. to "take the lead in formalizing international recognition of freedom of the outer space", instead of dumping the problem on the U. N. to become just another cold war wrangle.

    Some lawyers propose an international authority to own all space ships or at least to license them and ensure world wide access to the information gleaned by them. Eisenhower's proposal to bar weapons from space is also a good subject for international agreement, And when the first space ship lands on the moon should the crew plant a national flag? If so, should its claim be recognized by other nations? Surely it would be better if the home port on the ship's stern read simply and grandly "Earth", rather than representing one of this puny globe's puny parishes.

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  • THE RULE OF LAW

    By T.G. John, Advocate, Thrissur

    14/01/2019

    THE RULE OF LAW

    (T. G- John, Advocate, Trichur)

    "Let all things be done decently and in order"

    —St Paul's Epistle to the Corintheans

    "He who wants to govern must first learn to obey"

    —Carlyle.

    There is a general impression that violence is more prevalent now than ever before. Statesmen are assassinated, planes hi-jacked, ambassadors kidnapped, university professors roughed up, Piccadilly mansions invaded, post offices and Banks robbed and even religious abodes and Courts of law desecrated by unruly mobs. Threats with fist, knives, and anatomical twists have become the fashion in the so called representative assemblies of the people little wonder that the worthy representative who had to stand jeers and brickbats of the crowd at the time of election campaign repeats the same in the house vindictively.

    This sort of thing has happened, before. Plane hi hackers are the modern version of pirates—or rather of buccaneers for they purport to operate for a country and a cause, not merely for personal gain. Political assassination has a history far older than Julius Caesar, and the London Eighteenth Century Mob was far more terrifying and destructive than our militant students. Highwaymen were more to be feared by the ordinary citizen than are bank robbers, and ambassadors have by no means always been treated with punctilio and courtesy. Yet there is something new and disquietening about the present day violence especially as seen by those who broadly speaking believe in and abide by the rule of law and the liberal democracy, which were in the ascendant over most of Europe from about 1918-1930, and in Britain and France a good deal longer, and in India that is Bharat, recently.

    Skipping over the pages of English history we come across crucial events the signing of the Magna Charta, the Mad Parliament and a long list of fiery incidents, individuals, institutions and kings. But all these people fought for law and not against it. For nearly three hundred years from the end of the wars of religion to the beginning of the wars for political dictatorship the most powerful countries in the world that is to say the nation States of Europe and North America on the whole kept to self-imposed rules, in warfare and in their peaceful relationship. There were many transgressions but the kings and emperors did not resort to the method of Chaka of Genghis Khan. Governments which, in both internal and external affairs, try to abide by the rules of the game are constantly pained and surprised when others ignore them.

    Most modern violence appears to be politically motivated. The street gangs of Negro hooligans who terrorise parts of many American cities, and some of the recent crimes in our own country are not mere thuggish but could be con­sidered only as the militant arms of some Black Power Political party. Cubans and Arabs who hi-jack planes risking the lives of hundreds of passengers do so in their imaginary or assumed role of revolutionary patriotsas do bank robbers in Brazil, bandits in Southern Africa and gunmen in Kenya. As ninety per cent of this violence is in aid of some wing of politics, it enjoys the tacit approval or at least tolerance of the Government or the about to be formed Government.

    There is nothing new in people unable to get their own way by other methods, turning as a last resort of violence. In the past, however, violence was generally the resort of popular movements unable to make headway against tyranny or bureaucratic obstruction. That is" still the case in totalitarian countries such as say Czeckoslovakia. But in countries where the most sweeping changes can be brought about peacefully by convincing the majority of the people that they are necessary, violence is the resort of those who can never win an election. It used to be hoped that the twentieth century would be an age of reason. It is rot. A small but conspicuous minority of young people are the fanatics of the new world, so convinced of their righteousness and the wickedness and obduracy of those who deny it, that they are prepared to use any methods to force their views upon others—even to the extent of wrecking the whole legal system in the vague, naive hope that the new world which will emerge, more or less spontaneo­usly from the ruins, cannot be worse and may well be better than the old. John Stuart Mill once wrote that unpopular minority opinions can only obtain a hearing by studied moderation and the most cautious avoidance of unnecessary offence. Now however the mass media and the political coloring of most of our leaders ensure that any left wing opinion, however bizarre its nature and few its adher­ents, receives ample publicity if only it displays enough spectacular violence.

    The year 2000 is only thirty years away and the world of the future has already begun to take shape. It is being hammered out in a series of revolutions in science, technology, communications, and educationrevolutions so explosive that they are disrupting the structure of man's Society and changing the entire hierarchy of social and moral values. Alcohol is placed on a very high pedestal. And there is the very real problem of behavioral control involved in shaping coming generations physically and mentally through manipulation of the genetic code. Some of the experts gloomily predict a society run by a small elected elite presiding over a mindless multitude kept happy by drugs and circuses!

    So long as mankind shreds his fear for law and legal systems, Society, will benefit little by such scientific boosters as landing in the moon, fox-trotting round the sun or even helicoptering straight into the lap of Jehovah Himself !

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