Amendment Arbitrary?

(By P. Rajan, Advocate, Thalassery)

The recent amendment (Act No.20/2018), insertions to Sections 143 and 148 of the Negotiable Instruments Act seem to be a shot in the arm for the complainants, relating to prosecutions under Section 138 of the N.I. Act. The age old Act is of great use mainly to the business world with a view to enhance the credibility for acceptance of cheques. By the advent of 1988 Negotiable Instruments Laws Amendment Act, resulted in far reaching changes, resultantly easy and time bound legal recourses before magistrate courts. This change paved way for prosecutions basing on bounced cheques, those being valid instruments within the purview of the Act, as defined specifically earlier also.

Across the country when steady rise of complaints under Section 138 of N.I. Act has happened, different High Courts have to take different views on vital legal issues, in short without uniformity and even the Apex Court has to reconsider the dictum already made, persuaded to reconsider even jurisdictional aspect of place of lodging of the complaint. Divergent views of the High Courts, became routine. To address the grievances of the aggrieved at the earliest, amendments by way of Act No.55/2002 has been made making important changes like acceptance of affidavit instead of complainant’s testimony, bank’s slip to evidence reason for return of the cheque, offence made compoundable (Sections 145 to 147). Not a mode of tinkering but doubt-free overhauling, in effect has taken place.

The amendment of 2018 now in existence, stipulates interim compensation to the complainant at different stages as envisaged under Section 143 A of the amended Act, provision is also made about repayment of the interim compensation already received by the complainant with interest on acquittal of the drawer within sixty days or on further extension of time and steps for recovery contemplated as though the same is like fine amount--succinct are the provisions by way of amendments.

Section 138 as it now stands empowers the appellate Court considering appeal against conviction of cases under Section 138 of the Act to deposit not less than 20% of the fine or compensation amount awarded by the trial court. This deposit is in addition to the interim compensation paid under S.143A during the pendency of the matter at the trial stage.

Payment as interim compensation or money deposit during the appellate stage in a prosecution under S.138 of the N.I. Act appears to be penal besides prelim because ultimately the verdict goes in favour of the Accused/Appellant, realisation of the amount already deposited and withdrawn by the Complainant/Respondent would be a cumbersome process considering the assets or means of the complainant. It is no gainsaying that persons filing complaints basing on cheques for hefty sums may even be holders or on the strength of power of attorney, financial soundness of such individuals the courts being unaware, unlike prosecutions lodged by financial institutions controlled by the Government or similar authorised bodies, on acquittal, getting back the amount received by such complainants may meet with the plea of penury. It is paradoxical that under civil law Order XXXVIII mandates even for attachment before judgement is to be ordered, judicial satisfaction by affidavit or otherwise is pre-requisite. It goes without saying that even ordering security for appearance under Rule 1 of the said order is discretionary and any non­compliance of the steps specified therein make the attachment void. The purport of such a provision is to give relief to the plaintiff by avoiding obstruction or delay of execution of any decree that may be passed. It is a measure of assurance favouring the plaintiff to get the decree benefits.

By the perfunctory amendments regarding deposit of portion of the cheque amount or part of the compensation during the subsequent stage of the proceeding before the appellate court appears to be unreasonable, in a way penalising the indictee before finality of the proceeding. These provisions deserve relook by the law makers because saddling penalty, term what may, deposit of cash or portion of the amount due basing on the cheque, considering the fundamental principles of criminal law is violative of natural justice, courts are compelled to be presumptive of the prosecution plea, even before the plea of the drawer of the cheque is considered.

Can A Judgment be Invalidated

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

The answer can only be in emphatic affirmative in view of the march of law on the point from Madan Gopal Kabra, Karnataka (1954)  to (2018) 6 SCC 213.

The Supreme Court, in West Ramnad Electric Distribution Co. v. State of Madras (AIR 1962 SC 1753), has made it clear, as follows:

“The infirmity proceeding from lack of legislative competence as well as the infirmity proceeding from the contravention of fundamental rights lead to the same result and that is that the offending legislation is void and non est. That being so, if the Legislature can validate actions taken under one class of void legislation, there is no reason why it cannot exercise its legislative power to validate actions taken under the other class of void legislation. Hence, it is not correct to say that where the contravention of fundamental rights is concerned, the Legislature cannot pass a law retrospectively validating actions taken under a law which was void because it contravened fundamental rights.”

In holding so the Court followed its own earlier decisions in Sunder Ramaier (1958) and Deepchand (1959). In S.S.Bola v. B.D.Sardana ((1997) 8 SCC 522) the functions of the judiciary and the legislature were adumbrated with exactitude in the following words;

“The function of the judiciary is to interpret the law and to adjudicate the rights of the parties in accordance with the law made by the legislature. When a particular Rule or the Act is interpreted by a court of law in a specified manner and the law making authority forms the opinion that such an interpretation would adversely affect the rights of the parties and would be grossly inequitous and accordingly a new set of rules or laws is enacted, it is very often challenged as in the present case on the ground that the legislature has usurped the judicial power.  In such a case the Court has a delicate function to examine the new set of laws enacted by the Legislature and to find out whether in fact the legislature has exercised the legislative power by merely declaring an earlier judicial decision to be invalid and ineffective or the legislature has altered and changed the character of the legislation which ultimately may render the judicial decision ineffective.The legislature can always render a judicial decision ineffective by enacting a valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. What is really prohibited is that the legislature cannot in exercise of its plenary power under Articles 245 and 246 of the Constitution merely declare a decision of a court of law to be invalid or to be inoperative in which case it would be held to be an exercise of judicial power.  Undoubtedly under the scheme of the Constitution the legislature does not possess the same.”

See however, the word of caution in State of Tamil Nadu v. Shyam Sunder (2011 (3) KLT Suppl. 4 (SC) = (2011) 8 SCC 737).

“The legislature could change the basis on which a decision was given by the Court and, thus, change the law in general, which would affect a class of persons and events at large.  However, it cannot set aside an individual decision inter parties and affect their rights and liabilities alone. A judicial pronouncement of a competent court cannot be annulled by the legislature in exercise of its legislative powers for any reason whatsoever. The legislature, in order to revalidate the law, can reframe the conditions existing prior to the judgment on the basis of which certain statutory provisions had been declared ultra vires and unconstitutional.”

See also Ishwar Dutt v. Land Acquisition Collector (2005 (4) KLT SN 66 (C.No. 91) SC = (2005) 7 SCC 190:-

“A Writ of Mandamus is required to be obeyed unless a judgment is overruled or a legislation by way of a validating statute is brought into force.”

The Supreme Court has declared that a disqualification arising from a judgment can be removed by legislature. See Kanta Kathuria v. Manak Chand (1969 KLT SN 38 (C.No. 76)
SC = AIR 1970 SC 694:

“By enacting the impugned Act the appellant’s disqualification has been removed and the 1951 Act is, so to say made to speak with another voice.  But that is what the State Legislature is entitled to do, as long as it does not touch the wording of the 1951 Act. The answer given by the 1951 Act may be different but this is because the facts on which it operates have by valid law been given a different grab.”

This was recently reiterated in State of Karnataka v. Karnataka Pawn Brokers Association (2008 (2) KLT SN 24 (C.No.32) SC = 2018 (2) KLT OnLine 2032 (SC) = (2018) 6 SCC 363) in the following words:

“On analysis of the relevant judgments it can be said that the Legislature has the power to enact validating laws including the power to amend laws with retrospective effect.  However, this can be done to remove causes of invalidity. When such a law is passed, the Legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment.  If this is done, the same does not amount to statutory overruling.”

“A judicial pronouncement is always binding unless the very fundamentals on which it is based are altered and the decision could not have been given in the altered circumstances. The Legislature cannot, by way of introducing an amendment, overturn a judicial pronouncement and declare it to be a wrong or a nullity.  What the Legislature can do is to amend the provisions of the statute to remove the basis of the judgment.”

What doubt therefore, can there be whether the legislature can step in to express the mandate of the people, by enacting a new law in the place of an invalidated law in response to the aspirations of the people. This power cannot any longer be disputed as in a democracy it is the will of the people that is paramount and is supreme and even the courts act subordinate to it.  There therefore, cannot be any doubt that even a judgment can be altered by bringing in appropriate amendment even retrospectively, which in turn in some cases may have the effect of even nullifying judicial pronouncements.

The attempt to overturn a judgment, no doubt, has been frowned upon in cases where the Legislature lacks competence. For instance,  the cases relating to Kaveri Water Dispute and the Karuna Medical Case from Kerala.

The Supreme Court of United States however, has been circumspect on the power of the Legislature to upset the judgment of the Supreme Court (See Plant v. Spendthrift (1995 115 SC 1447) and PRA Dusadh v. R (1944 FCR 61).

In fact in India an amendment to the Constitution was made to efface out the judgment of the Allahabad High Court declaring the election of a political leader void on the ground of corrupt practice (See AIR 1975 SC 229). It is part of the history of our country that the judgments of a constitutional court in the Bank Nationalization case and the Privy Purse case were set at naught by subsequent legislations.

Indubitably people’s wishes can be taken note of and should be taken care of by the Legislature in the event it felt that legislation is needed and it can act even retrospectively.

How then could it be argued that a Legislature representing the will of the people in a democracy is utterly helpless in the event the Court steps in to invalidate a law? They sound jejune and puerile.

Just Grin and Bear it

(By K. Ramakumar, Senior Advocate, High Court of Kerala)

Some are more equal even in the eyes of law in a country in which the fourteenth Article of the Constitution is not merely a fundamental right but a charter of faith in equality. What is good for the goose need not be good for the gander always.

The Kerala Law Times, the premier Law Journal of the State deserves kudos for making available the full text of a significant judgment reporting it in 2018 (3) KLT 1087
(Uttarakhand).

A Judge of the Uttarakhand High Court Sri.Justice Lok Pal Singh on the 9^th of May, 2018 and on the 11^th as well while holding the Court used the following expression:- “unlike other Judges he is not in a habit of changing orders in his chamber”  and in Hindiabout a Senior Advocate and a former Judge of a High Court “yes, I know what kind of a Lawyer he is, and what kind of a Judge he was”.A practicing Advocate of the same Court brought action in contempt against the Judge after moving the Advocate General of the State.  The Advocate General rejected the application for sanction in the following manner:-

“I have gone through the contents of the contempt petition and the affidavit and I find that the instance of 11^th May,2018 occurred with myself and consequently the Hon’ble Judge has passed an order against me and the Government Advocate, hence, although the facts as mentioned do make out a case of sanction, yet in order to avoid any allegations of bias, I am not in a position to accord formal sanction.”

A Division Bench of the Uttarakhand High Court therefore had the unpleasant occasion to deal with the issue whether a Judge of a Court of Record can be proceeded in Contempt “of his own court”.  With great respect to the Judges constituting the Division Bench, the judgment no doubt makes brilliant reading. The Judges have prefaced the judgment:-

“We must record that this whole exercise has not been pleasant for us.  It is a very unusual case, to say the least.  Still we must give a decision and we do that ‘with malice towards none, with clarity for all, we must strive to do the right, in the light given to us to determine that right. (We found this reference of Abraham Lincoln’s speech in the seminal judgment of Justice Sabyasachi Mukharji in the case of P.N.Duda v. P.Shiv Shanker reported in (1998) 3 SCC 167), and that is to be taken as our source.”

On the merits of the matter the Judges have recorded as follows:-

“Intemperate comments and undignified banter, as the Hon’ble Apex Court refers above, also undermines the public confidence in a Judge, Public confidence, which is an absolutely essential condition for realizing the judicial role. (The Judge in a Democracy – Aharon Barak Princeton University Press).  Public confidence does not mean being popular in the eyes of the public or being pleasant. ‘On the contrary, public confidence means ruling according to the law and according to the Judge’s conscience, whatever the attitude of the public may be.  Public confidence means giving expression to history, not to hysteria’ (Aharon Barak (supra) page110). Public confidence is also the ultimate strength of a Judge.  Eugen Ehrlich, the noted sociologist had famously said ‘there is no guarantee of justice except the personality of the judge’.  This personality we must remember, is always under a close watch of a litigant, who quietly sits in a corner of a courtroom, judging the justice!”.

Yet the Court was compelled to reject the petition in these words:

“Although in the absence of a consent of the Advocate General, this Court can take action on its own motion, but presently this channel  is not open to us here, as proceeding of contempt cannot be initiated against a Judge of a Court of Record, on a charge of ‘committing a contempt of his own court’.”

In holding so, the Division Bench relied upon the decision of the Apex Court in Prakash Chand((1998) 1 SCC 1)in which the Apex Court held as follows:-

“Even otherwise it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a Court of Record for a judicial act done by the Judge.  The remedy of the aggrieved party against such an order is to approach the higher forum through appropriate proceedings.  Their immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction.  Immunity from any civil or criminal action or a charge of contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice”.

The Apex Court quoted from Salmond and Heuston  on the Law of Torts:-

“A Judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions.  His exemption from civil liability is absolute, extending not merely to errors of law and fact, but to the malicious, corrupt or oppressive exercise of his judicial powers.  For it is better that occasional injustice should be done and remain unaddressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of judges to unfounded and vexatious charges of errors, malice, or incompetence brought against them by disappointed litigants - ‘otherwise no man but a beggar, or a fool, would be a judge’.”             (underlining supplied)

What then is the fall out of the judgment of the Uttarakhand High Court?  The Law is different for Judges of a Court of Record and other Judges?  Section 16 of the Contempt of
Court Act reads as follows:-

“16. Contempt by Judge, Magistrate or other person acting judicially – (1) Subject to the provisions of any law for the time being in force, a Judge, Magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.

Under that provision it is obvious to any reader that the expression ‘Judge’ includes all judges.  It is true that the expression ‘Judge’ is not defined in the Contempt of Courts Act.  But then there is no provision in the Contempt of Courts Act exempting Judges of the High Court or of a Court of Record from the purview of that Act.  If that was so, Justice
Sri .Karnan of the Madras High Court could not have been proceeded against in contempt.  Also because the Supreme Court held in Baradakanta v. Registrar AIR 1974 SC 710 that “a Judge can foul judicial administration by misdemeanour while engaged in the exercise of the functions of a Judge”.  How then can a Judge of a Court of Record misbehaving is exempt while a Judge of the Subordinate Court misbehaving likewise objectionably is answerable in contempt ?  A Lawyer misbehaving in a Court is also equally liable while the Judge of a Court of Record even if he misbehaves is not..

Is this justifiable in a country where equality of law is sacrosanct. From the podiums of Law Colleges and platforms in every judicial function it is proclaimed Lawyers and Judges are two sides of the same coin.  Can there be a different law to one side of the coin and the other ? Not according to the resounding words of the Supreme Court on equalizing principles.  Let me quote fromRoyappa:-

“It is a founding faith, to use the words of Bose. J., ‘a way of life’, and it must not be subjected to a narrow pedantic or lexicographic approach.   We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude.   Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits.  From a positivistic point of view, equality is antithetic to arbitrariness.   In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.  Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law.. . . . . . . . . . . .”

This equality clause has been elevated to high moral grounds recently in favour of the transgenders and the women in two moralistic judgments of the Supreme Court declaring invalid Sections 377 and 497 of the Indian Penal Code. Can the Subordinate Judges of our judicial system who bear the brunt of the onerous work be then subjected to discrimination in the matter of contempt ?

The different law concept cannot be supported with reference to the provisions of the Contempt of Courts Act or justified under the equality clauses of the Constitution of India.  After all a Court takes in Lawyers also as declared by the Supreme Court in Baradakanta:- 

The Apex Court approved the following view on ‘Court’ :-

“An organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz., attorneys and counselto present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands, and secure due order in its proceedings.”     (underlining supplied)

The Counsel therefore, are an integral part of a Court.  How then can be discrimination in the matter of contempt jurisdiction in regard to some among the court omitting altogether a Judge ? Will it bear scrutiny of the proclaimed principles of equality in our Constitution ?  Prima facie, it will not, because contempt is not of the Judge but of the court. If the view of the Apex Court is that “the image and personality of the High Court as an integrated one” shall be protected in the contempt jurisdiction. A Judge’s impermissible conduct within the court room will undoubtedly debunk him as a Judge and cast a shadow of darkness on the image of the Court.  How can then it be anything other than contempt ?

The Apex Court in Prakash Chandsaid:- “It is a fundamental principle of our jurisprudence that no action can lie against a Judge of a Court of Law for a judicial act done by the Judge. (mark judicial act). Can this fundamental principle over-ride the supreme fundamental right under the Constitution of India to equality between Lawyers and Judges constituting together ‘the court’? Can there be one law for one functionary within it and another law for the other? The answer can only be ‘no’.

Look at the stark discrimination in that branch of law. The Allahabad High Court punished Sri. C.Y. Chinthamani and Sri K.D. Malaviya for publishing a criticism to the effect that comparatively undeserving lawyers were being frequently raised to the Bench. (See AIR 1935 All.1).  The same view was repeated recently, openly and frankly by a judge of the Hon’ble High Court of Kerala in his retirement speech.  Will that also therefore, constitute contempt ? If so, can there be a distinction between the persons who voice such views?.

Justice Sri Karnan, unjustifiably crossing the limits of decorum, decency and dignity, made wild accusations against various Judges. But, he was doing it as a Judge.  He was therefore, committing contempt of the other judges and also of his own court.  Still that Judge of a Court of record was found guilty by the Apex Court and sent to jail.

In the ultimate analysis therefore, Prakash Chandand the Patna High Court and the view echoed by the Uttarakhand High Court eminently require re-visitation and a clear enunciation of the law regarding ‘contempt of his own court’  needed.

Till then, dear learned friends, even if you are hurt, humiliated or insulted, just grin and bear it.

Legislations Against the Maxim “Actus Legis Nemini Facit Injurium”

(By H.Sajeer, Section Officer, Law Dept.,Govt.Secretariat,Thiruvananthapuram)

The title maxim means the act of law injures no one. But recent legislations pressing it to do some thing against this principle.

Now the Negotiable Instruments (Amendment) Act 2018 is on screen. As per the amendment a new section, Section 143 A was inserted in the Parent Act. It reads,

“143A. (1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant-

(a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and

(b) in any other case, upon framing of charge.

(2) The interim compensation under sub-section (1) shall not exceed twenty per cent, of the amount of the cheque.

(3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque.

(4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.

(5) The interim compensation payable under this section may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973.

(6) The amount of fine imposed under Section 138or the amount of compensation awarded under Section 357 of the Code of Criminal Procedure, 1973, shall be reduced by the amount paid or recovered, as interim compensation under this section.”.

On going through the amendment it is literally clear that the court may, while trying an offence under Section 138 of the Act, order the drawer to pay interim compensation to the complainant either at the time of read over the accusation made in the complaint (in a summary trial or summons case) or upon framing of charge.

The first limb of the amendment itself clear that the interim compensation is to be given only at the mid period of the case and not at the beginning. That means the complainant cannot move a criminal miscellaneous petition praying for interim compensation at the time of filing the petition.

Sub-section (2) of the newly inserted Section, section 143 says that the interim compen-sation under sub-section (1) shall not exceed twenty per cent of the total cheque amount.

While going through the above section it is seen that the passing of the order is only the discretion of the court, which entertain the matter. But if we go through the next
sub-section i.e., sub-section (3) it is seen that the interim compensation shall be paid within sixty days from the date of the order or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. Here it is clear that once the order is passed the drawer of the cheque has no option, than to pay the amount to the complainant within the time stipulated in the order. It is also seen from the amendment that after contesting case if the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.

Almost ninety five percent of the cheque cases are filed by the compalinants by filling amount on it, according to their whims and fancies. The drawer may borrow an amount from a money lender and issue a blank signed cheque, for the security of the amount. Though the interest had been paid regularly the unscrupulous money lender may fill an amount larger than that of the actual one and present before bank. Again he may send notice to the drawer demanding exorbitant amount. Atlast he may file a petition before court by shedding false and frivolous stories.

The unscrupulous money lenders are not poor persons who need to be given interim compensation like that of an injured in the motor accident case. In the latter, he is to be given interim compensation for meeting his daily medication and treatment. But on the other hand the financiers ,creditors, money lenders ,hirers etc., need not be compensated for
their enrichment.

Nowhere in the amendment states that the default payment caused any sentence to the drawer or the complainant.

When we move to the sub-section (5) it is seen that the interim compensation may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973.

Section 421 of the Cr.P.C. says, when an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine, it may issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender or issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. Suppose if the drawer has no movable or immovable property of his own the recovery can be effected as if it is a land revenue due to land.

It is seen that the term offender is neither defined in the Indian Penal Code, the Criminal Procedure Code nor in the Negotiable Instruments Act. Awarding of interim compensation cannot be construed as sentence. Then how can Section 421 of Cr.P.C. will apply for recovering an amount once awarded under the new amended Act.

Another feature of the amendment is that it inserted a new section, Section 148, which reads :-

“148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,

(2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court:

Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143A.

(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.

(3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:

Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.”.

Legislature says, if the accused was paid a compensation amount of twenty percent of the cheque amount in the trial court, as per the direction of it, then the trial court finds that the accused was guilty, and if the accused preferred appeal, then again he shall deposit twenty percent of the total amount of cheque before the appellate court, the appellate court then release the amount to the complainant.

From the above reading it is clear that the legislation is not complied with the basic principles of law. Suppose if the trial court or the appellate court finds that the accused is innocent or the prosecution could not establish a prima facie case against the accused, then who will compensate the accused for his mental agony and sufferings that he had faced in the trial court. If the complainant obtained the cheque in an unlawful manner and he presented the same for an exorbitant amount, then the accused has to drive the way which leads by the complainant look into the other side. If the case is a genuine one if the accused paid twenty percent of the amount to the complainant in the trail court and gain in the appellate court, suppose if the accused is acquitted, then the complainant has to find out the amount once again to repay it to the accused. If not the status of the complainant is to be transformed as accused.

In short enactment of SARFAESI Act had thrown of numerous poor persons into street from their homes. The bank got power as dictator for evicting poor creditors without the intervention of court, without giving even a mandatory notice from a Chief Judicial Magistrate court.

Hence the Negotiable Instruments (Amendment) Act, 2018 may cause exode of ligations in court and thereby the fraudulent creditors gain unlawful enrichment by utilising court interventions.

Far-Sighted Judicial Dissents

(By S.K.Premraj Menon, Advocate, High Court of Kerala)

‘A dissent in a Court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the Court to have been betrayed’, said Charles Evans Hughes - the 11^th Chief Justice of the United States Supreme Court during his second lecture at Columbia University. This locus classicuswas quoted with approval by two of the finest and scholarly Judges of the Supreme Court of India - Justice H.R.Khanna in A.D.M, Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207) and Justice R.F.Nariman in Justice K.A.Puttaswamy (Retd.) & Anr. v. Union of India & Ors.(2017 (4) KLT 1 (SC) = AIR 2017 SC 4161), while overruling A.D.M, Jabalpur v. Shivakant Shukla(supra)

The classic dissenting judgments which are dealt with herein illustrates how the learned Judges expounded the nuances of law and expressed themselves, unconstrained by the need to persuade their adversary Judges, and their brilliant contrasts to the majority views, to open the shades of justice, pointing out those vitals facets on which the majority missed their marks. The ends of the Constitution – justice, liberty, equality and fraternity are sacrosanct as they reinforce our constitutional values. Being so, weren’t those majority opinions evil, as opposing the very Constitution, thwarting with the will of the people as being antithesis of our Constitution’s goals.

Till 1966, the Privy Council judgments (advices to the Monarch), never had a single dissent for the reason that the Judicial Committee could only give a unanimous opinion, with no differing voices, in accord with an order of Charles I during 1627. Due to this strange practice, Justice Mukund Ramrao Jayakar – a Judge of the Federal Court, who later become a Member of the Privy Council had to write a judgment, though he had an entirely different view. The Judicial Committee (Dissenting Opinions) Order, 1966, now permits dissenting
opinions in the Privy Council.

Article 21 of our Constitution which is said to be not merely a twinkling star in the high heavens to be worshipped and rendered vociferous lip-service only, but indeed an actually meaningful protective provision, was under consideration in A.K.Gopalan v. State of Madras (AIR 1950 SC 27), which was a case of habeas corpus in a case under the Preventive Detention Act, 1950, wherein, inter alia, the reach of Article 21 was deliberated at great length by a six Judge Bench of the Apex Court. The majority headed by Chief Justice H.J.Kania, propounding the doctrine of directness of legislature, took a narrow view holding that Article 21 had no relationship with Articles 14 and 19, observing that personal liberty has nothing to do with rights under Article 19, which talks about different type of liberty and also held that Article 14 which speaks about reasonableness too had no relationship with Article 21. The majority virtually made a literal interpretation of the words ‘procedure established by law’, appearing in Article 21. Voicing against five of his brother Judges, Justice Saiyid Fazl Ali, meaningfully examined and interpreted the fundamental rights, broadly construing the provision ‘procedure established by law’ in Article 21, holding to encompass higher principles of natural law and justice, and not just the statutory law as held by the majority. He went on to hold that the Indian Constitution intended to incorporate the same language as the relatively new Japanese Constitution and encompass ‘due process of law’ conception. He cited various foreign precedents to support a much more expanded view of the due process. He held that the principles of natural justice are part of the general law of the land and are required to be read into Article 21. The majority view held the field for around twenty years which led to anomalous results. In Rustom Cavasjee Cooper v. Union of India(1970 KLT SN 5 (C.No.9) SC = AIR 1970 SC 564), widely known as the Bank Nationalization case, in which the constitutionality of the Banking Companies (Acquisition of Transfer of Undertakings) Act, 1969 was under challenge, the eleven Judge bench of the Apex Court quashed the legislation as being violative of Articles 14, 19 and 31 of the Constitution, upholding the minority view expressed by Justice Saiyid Fazl Ali in A.K.Gopalan v. State of Madras(supra). This view was later reiterated in Maneka Gandhi v. Union of India & Ors.(1978 KLT OnLine 1001 (SC) = AIR 1978 SC 597) spelling out that the procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.

In Romesh Thappar v. State of Madras (AIR 1950 SC 124), the first important case on free speech, the constitutionality of Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 was challenged before the Supreme Court of India. This Section allowed the State Government, for the purpose of securing public safety and maintaining public order, to control and regulate the entry and circulation of any set of documents (primarily newspapers) in the State. The Apex Court, therefore, had to clarify the meanings of the terms ‘public order’, ‘public safety’ and ‘undermines the security of the State’. It defined ‘public order’ as that ‘state of tranquility which prevails among the members of a political society’. On technical grounds, it found that ‘public safety’ meant, in this context, the same thing. Undermining the security of the State – the Article 19(2) clause meant ‘nothing less than endangering the foundations of the State or threatening its overthrow’. Hence there was a clear difference in degree between the two clauses. The Court also cited the fact that the word ‘sedition’ in Article 13(2) of the Draft Constitution had been deleted and replaced by the present formulation of Article 19(2) and the narrow definition of sedition affirmed by the Privy Council in King Emperor v. Sadashiv Narayan Bhalerao (AIR 1947 PC 82) implied that there were very narrow and stringent limits enunciated in Article 19(2) as freedom of speech lay at the very foundation of all democratic organizations and without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible, thus holding that Section 9 (1-A) of the Madras Maintenance of Public Order Act which used the broader phrase ‘public order’, was unconstitutional. Justice Saiyid Fazl Ali dissented, and the reasons for his dissent were elaborated in Brij Bhushan v. State of Delhi (1951 KLT 1 (SC) = AIR 1950 SC 129), where the issue was essentially the same. In that case, Section 7(1)(c) of the East Punjab Public Safety Act, 1949 which allowed pre-publication scrutiny of material ‘prejudicial to public safety or the maintenance of public order’ essentially, pre-censorship was challenged. The majority followed the decision and reasoning in Romesh Thappar v. State of Madras (supra). Justice Saiyid Fazl Ali on the other hand held that ‘public order’, ‘public safety’, ‘sedition’ and ‘undermining the security of the State’ essentially amounted to the same thing. Applying somewhat convoluted logic, he held that because sedition undermines the security of the State usually through the medium of public disorder and therefore it is difficult to hold that public disorder or disturbance of public tranquility are not matters which undermine the security of the State. In the 1^st amendment to the Constitution during 1951, the words ‘undermines the security of, or tends to overthrow the State’ was replaced by ‘in the interests of public order’. Thus three of the dissents of Justice Saiyid Fazl Ali became law. Another dissent of Justice Saiyid Fazl Ali’s was in Kesavan Maadhava Menon v. State of Bombay (AIR 1951 SC 128), wherein a prosecution under the Press (Emergency Powers) Act, 1931 was under challenge. The core issue were whether Sections 15(1) and 18(1) read with the definitions contained in Sections 2(6) and 2(10) of the Press (Emergency Powers) Act, 1931 were inconsistent with Article 19(1)(a) and that assuming that they were inconsistent, whether the proceedings commenced under Section 18(1) of that Act before commencement of the Constitution could be proceeded with. Though the majority held that prosecution could be proceeded with, Justice Saiyid Fazl Ali, dissented holding that by operation of Article 13(1) of the Constitution, the law which is in conflict with the fundamental rights was never a good law after 26^th January 1950 and the prosecution cannot continue as the law which made the act an offence has itself become completely ineffectual and nugatory. Justice B.K.Mukherjee agreed with this view.

Justice K.Subba Rao’s legendary dissent in Radeysham Khare v. State of Madhya Pradesh(AIR 1959 SC 107) where the question arose as to the nature of the powers of the State Government to supersede the Committee of a Municipality and whether it was necessary to give a hearing to the Committee before superseding it, even though the Central Provinces and Berar Municipalities Act, 1922 did not provide for such an opportunity. The majority held that no such opportunity was obligatory. They held that merely because the Act required the Government to pass a reasoned order, it did not mean a duty to record a judgment judicially arrived at, though they recognized that an order of supersession does cast a slur upon the Committee and its members. Justice K.Subba Rao in his dissent, took a contrary view, stating that the duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance. Applying the said principle, he held that the power under Section 53-A of the Central Provinces and Berar Municipalities Act, 1922 Act could be exercised only on the happening of three conditions viz., (i) incompetence of the Committee to perform its duties, (ii) formation of opinion by the State Government that appointment of a special officer would improve the working of the Municipality and (iii) obligation to pass a reasoned order. He held that these requirements called for a duty to act judicially which includes a duty to give a hearing to the Committee. This dissent ultimately found its fruition in A.K.Kraipak & Ors. v. Union of India & Ors.

(1969 KLT SN 15 (C.No.29) SC = (1969) 2 SCC 262) where it was held that the dividing line between administrative and quasi-judicial function has become quite indistinguishable and that the test is whether the action of the authority affects the rights or the interests of a person and if it does, he must be heard, whether you call it the principles of natural justice or the duty to act fairly. Justice K.Subba Rao’s next dissent soon followed in Basheshar Nath v. C.I.T., Delhi and Rajasthan(AIR 1959 SC 149), wherein a question was raised whether it was open to a citizen to waive the fundamental rights conferred upon him by Part III of our Constitution. Justice S.K.Das thought that that question did not really arise on the facts of that case while Chief Justice S.R.Das and Justice J.L.Kapur thought that whatever may be the position with respect to other fundamental rights, a citizen cannot waive a breach of Article 14. They were of the opinion that Article 14 was not a right conferred upon the citizens as such but a mandate to the State not to discriminate, and since the said mandate is based upon public policy, the citizen has no right to waive it. Justice K.Subba Rao took a more liberal view and held that the entire Part III and not merely Article 14 were conceived in public interest and that all of them confer rights upon citizens. He opined that it is not proper that the fundamental rights created under the various articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit and accordingly held that no citizen can waive any of his fundamental rights. Justice N.H.Bhagwati agreed to this view. Even today, Article 14 is known to have both a negative and an affirmative content - the view propounded by Justice K.Subba Rao. In Pandit M.S.M. Sharma v. Sri Krishna Sinha & Ors.(AIR 1959 SC 395), commonly known as the Searchlight case, Justice K.Subba Rao dissented again. The question was whether the Press has the fundamental right under Article 19(1)(a) to publish the speech of the members of a legislature, which was expunged by the Speaker. Justice K.Subba Rao in his strong and progressive dissent, demolished the claim of the majority and observed that the House of Lords asserted the privilege in 1801 when its proceedings were published mala fide, though they were expressly ordered to be expunged. He emphasized on the principles of democracy and said that the proceedings of the houses of Parliament or legislature should be made public. It would be in the interest of the nation that people must know what is happening inside the house. To support his point, he referred to Chief Justice Cockburn in Wasan v. Walter((1868) 4 QB 73), who effectively rejected the significance of the privilege claimed in modern democracy. Though amendments were made in Articles 105(3) and 194(3) of the Constitution, claiming transparency, the position remains basically the same as it stood earlier. Justice M.N.Venkatachaliah Commission had recommended that privileges should be defined and codified for the free and independent functioning of the legislatures. Thus denial on part of legislature is against the spirit of the Constitution. Another great dissent of Justice K.Subba Rao was in Kharak Singh v. State of Uttar Pradesh & Ors. (AIR 1963 SC 1295) which dealt with the validity of a provision in the U.P.Police Regulations, raising a question as to the meaning and scope of the expression ‘personal liberty’ in Article 21. While the majority took a restricted view, Justice K.Subba Rao took a more expansive view, with which Justice J.C.Shah agreed. He held that no doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action. But that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. In Maneka Gandhi v. Union of India(supra), Justice P.N.Bhagwati held that the majority judgment in Rustom Cavasjee Cooper v. Union of India(Supra) had the effect of overruling the majority opinion in Kharak Singh v. State of Uttar Pradesh & Ors.(supra) and of approving the minority opinion of Justice K.Subba Rao. The dissenting opinion of Justice K.Subba Rao in New Maneck Chowk Spinning and Weaving Co. Ltd., Ahmedabad v. Textile Labour Association, Ahmedabad(AIR 1961 SC 867) laid the foundation of the Payment of Bonus Act, 1965.

Chief Justice M.Hidayatullah is also known for his great dissents. In New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar(1963 KLT OnLine 1202 (SC) = AIR 1963 SC 1207),
dealing with a case under the Sugar and Sugar Products Control Order, 1946 and also with the aspect of sale, which could be taxed under the Bihar Sales Tax Act, 1947, the majority referring to the Sale of Goods Act, 1930 and held that there was no sale and hence there was no question of taxation. Justice M.Hidayatullah (as he was then), taking note of the sales tax imposed on goods assumed by different forms in different countries, which led to the recommendations of the Taxation Inquiry Committee for the entry in the Government of India Act 1935, went on to interpret the word ‘sale’ referring to the Roman Law of emptio venditioas well as the Indian Contract Act 1872 held that in the transactions there was a sale of sugar for a price and the tax was payable. This dissent was later upheld by a seven Judge bench of the Apex Court in M/s. Vishnu Agencies Pvt. Ltd. v. Commercial Tax Officer & Ors. ((1978) 1 SCC 520). In Bhagwandas Goverdhandas Kedia v M/s. Girdharilal Parshottamdas and Co. Ltd. & Ors.(AIR 1966 SC 543), the respondents/plaintiffs entered into a contract with the appellants by long-distance telephone. The proposal was spoken by the respondent at Ahmedabad and the acceptance was spoken by the appellants at Khamgaon. On the issue of jurisdiction, the trial Court found that the plaintiffs had made an offer from Ahmedabad by long distance telephone to the defendants to purchase the goods and that the defendants had accepted the offer at Khamgaon, that the goods were under the contract to be delivered at Khamgaon and that payment was also to be made at Khamgaon. The contract was, in the view of the Court, to be performed at Khamgaon and because the offer was made from Ahmedabad to purchase goods, the Court at Ahmedabad could not be invested with jurisdiction to entertain the suit. But, the Court held that when a contract is made by conversation on telephone, the place where acceptance of offer is intimated to the offeror, is the place where the contract is made and therefore the civil Court at Ahmedabad had jurisdiction to try the suit. A revision filed by the defendants against the order, directing the suit to be proceeded on the merits, was rejected in limineby the High Court of Gujarat, against which, an appeal was preferred to the Supreme Court of India. The majority preferred to endorse the rule laid down in Entores Ltd. v Miles Far East (1955 (2) QB 327) that where a contract is made by instantaneous communication, like by telephone, the contract is complete only when the acceptance is received by the offeror, since generally an acceptance must be notified to the offeror to make a binding contract. The Court upheld the judgment of the trial Court which took the view that a part of the cause of action arose within the jurisdiction of the City Civil Court Ahmedabad, where acceptance was communicated by telephone to the plaintiffs. Justice M.Hidayatullah (as he was then) expressed his dissenting opinion, painstakingly deducing that there are four classes of cases which may occur when contracts are made by telephone viz., (i) where the acceptance is fully heard and understood, (ii) where the telephone fails as a machine and the proposer does not hear the acceptor and the acceptor knows that his acceptance has not been transmitted, (iii) where owing to some fault at the proposer’s end the acceptance is not heard by him and he does not ask the acceptor to repeat his acceptance and the acceptor believes that the acceptance has been communicated and (iv) where the acceptance has not been heard by the proposer and he informs the acceptor about this and asks him to repeat his words. Considering the very language employed in Section 4 of the Indian Contract Act, 1872, he held that it covers the case of communication over the telephone, that contract was complete at Khamgaon and allowed the appeal with costs. The lone dissenting voice Justice M.Hidayatullah (as he was then) in Naresh Shridhar & ors. v. State of Maharashtra & Ors.(1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1), challenging Justice V.M.Tarkunde’s oral order forbidding publication of what transpired in the Court during recording of evidence in a defamation case, adding that no written order was necessary and that he expected that his oral order would be obeyed, to be violative Article 19(1)(a) of the Constitution, as against a majority of eight learned Judges, he held that the Judges, both in their administrative as well as judicial capacity are not totally immune from the challenge of infringement of fundamental guarantees. He said that it is true that Judges, as the upholders of the Constitution and the laws, are least likely to err but the possibility of their acting contrary to the Constitution cannot be completely excluded. By way of illustration he says if a Judge, without any reason, orders the members of say one political party out of his Court, those so ordered may seek to enforce their fundamental rights against him and it should make no difference that the order is made while he sits as a Judge. Even if appeal lies against such an order, the defect on which relief can be claimed, is the breach of fundamental rights. He held that Judges could not prohibit publication of what transpired in open court because such proceedings were open to all Indian citizens as public hearing of cases before Courts is as fundamental to our democracy and system of justice as to any other country. Considering whether a Writ Petition under Article 32 can at all lie against a Judge in respect of any action performed by him while in the seat of justice, interpreting the definition of ‘State’ in Article 12, he held that the definition does not say fully what may be included in the word ‘State’ but, although it says the word includes certain authorities, it does not consider it necessary to say that Court and Judges are excluded. He also considered Article 20, which speaks of convictions for offences, punishments and testimonial compulsion is addressed as much to Courts as to executive and other authorities, venturing to think that the worst offenders would be the Courts if they went against this prescription. He thus quashed the order of Justice V.M.Tarkunde and declared that the forbidden testimony is capable of being reported in extensoin any newspaper in India. This outstanding dissent is fortified by remarkable reasoning.

Another great dissent was the one made by Justice H.R. Khanna in A.D.M, Jabalpur v. Shivakant Shukla(supra), popularly known as the Habeas Corpus case, decided by the Supreme Court on 28^th 1976, by a five Judge bench. In this case, Justice Khanna was the lone dissenter. The Additional District Magistrate of Jabalpur appealed against the Madhya Pradesh High Court’s verdict favouring the detenu Shivakant Shukla, which was the lead case. The Supreme Court set aside nine High Court judgments including the Madhya Pradesh High Court’s, which had ruled in favour of the enforcement of fundamental rights during the Emergency, upholding the Presidential Order dated 27^th June 1975. The majority concluded that the Presidential Order had declared that the right of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of those rights would remain suspended for the period during which the proclamation of Emergency was in force. Justice H.R.Khanna, rejecting the majority view in the most righteous indignation, held that Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. Sanctity of life and liberty was not something new when the Constitution was drafted and the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution and that even in the absence of Article 21, the State has got no power to deprive a person of his life or liberty without the authority of law. He reasoned that even before the Constitution came into force, no one could be deprived of his life or personal liberty without the authority of law. Such a law continued to be in force after the Constitution came into force in view of Article 372. This lone dissent has after elapse of four decades ripened to law in Justice K.A.Puttaswamy (Retd) & anr. v. Union of India & ors.(supra). One can never forget that this dissent cost Justice H.R.Khanna the post of the Chief Justice of India, while overlooking his seniority, Justice M.H.Beg was appointed as the Chief Justice of India, as a result of which, Justice H.R.Khanna resigned.

Perhaps the greatest dissent of all, in my humble opinion is the one by Justice J.Chelameswar in Supreme Court Advocates-on-Record Association & Anr. v. Union of India(2016 (1) KLT 193 (SC) = (2016) 5 SCC 1)known as the NJAC case, which dissent drew a parallel between him and Justice H.R.Khanna. He was the lone Judge in the Bench to uphold the validity of the National Judicial Appointments Commission Act, 2014, which was the subject matter of challenge. He held that transparency is a vital factor in constitutional governance, which also was a facet of rationality. The need for transparency is more in the case of appointment process and proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. He went on to boldly hold that assumption that primacy of the judiciary in the appointment of Judges is a basic feature of Constitution is empirically flawed, pointing out that there were cases where the Apex Court Collegium had to retrace its steps, after rejecting recommendations of a particular name suggested by the High Court Collegium giving scope for a great deal of speculation. He held that the present Collegium system lacks transparency, accountability and objectivity, which view was agreed by Justice Kurian Joseph. Justice J.Chelameswar went on to say that exclusion of the Government from the process of appointing Judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy, adding that Attorney General Mukul Rohatgi was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances - a fundamental principle in Constitutional theory.

These dissents strengthened the value of free speech and expression, and are based on effective and judicious considerations. In the recent past, there is a gradual decline in use of free expression of dissent. This declining trend of dissenting opinions raises several questions including the capability and credibility of the Indian judicial system as well. It is the inherent power of dissent that helps to build the very foundation of democracy. It is the power of dissent that keeps our nation afloat.