Some Thoughts on the Flood — Before, During and After !

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

Coping with floods!

The first one began as tiny drops of rain somewhere in the high sky. It became a cascade, it swelled into a deluge. It got into our dams, to damn us. They were allowed to escape, torrents they formed, to flow vile and wild, heartless - they had no definite destination except down, down and downwards, down our hill sides and slopes, they stole on us day and night, on to our villages and towns; they ravished us, they made us weep in their sweep, our tears swelling them further. They drowned many a dream; they smashed puny man’s creations. They took away dear ones; they dampened our homes and possessions, but not our spirit. Was it by stealth or design, I won’t dare debate. CFS and TMC lost meaning, man-made definitions to store and measure God’s wrath. Mate, that notorious dam did not burst. Thank God! But it opened crores of other dams; dams of human tears, of misery, of helplessness, of human traits.

“Frightening” is insufficient to describe the devastating fury unleashed by Mother Nature on us during the past few days, causing immeasurable loss of lives and property. Elements thrust on us by her mocked helplessness of man to resist her onslaught. Exposed are, not only sylvan mountain sides gifted by her – now barren and sordid - but also man’s greed to exploit her in the name of survival and comfort. She took away much of her gifts man took for granted. GOD FORBID, she is waiting to deliver the next instalment of her merciless punishment for all the fraud and folly man heaped on her over decades. It will be easy to blame everything on her unpredictable nature. I daresay that man made her unpredictable. That is a matter for seasoned environmentalists and geologists to assess and enlighten us on.

It also opened dams of human spirit and brotherhood, unleashing a flood of compassion and contribution that was divinely welcome. That flood began as a small bag on the porch of High Court, thanks to a blessed soul and a pious sponsor. It invited mixed reactions: wonder, scepticism, respect. It grew into more bags, cartons and crates, it came in trucks and on shoulders, it came from far and near, from our black attired brethren and a humanity laden with heavy heart. It became mountainous. It flowed out on foot, in cars and trucks, to wipe away tears of countless citizens; their destinations were definite and motivated. United, we said, we will survive. The dedication, the determination, the commitment, the compassion displayed by my brothers and sisters was exemplary. The support lent by judges, armed forces and police and the co-operation shown by all other merciful people will stand out in golden letters in the history of HIGH COURT OF KERALA. Lawyers all over the nation have proved that we are noble. We have given back to the society, in a measure however small it may be, what it gave us. Hats off to the young lawyers who flexed their muscles at the hour of need!

The other flood: Well, less said the better. It is ugly. It is mean. It is not noble. It is on Face Book, in print, on WhatsApp and TV, dividing us only on biased and individual notions of what is right and wrong. Everyone who thought he had the last word spoke out in derision or respect, as he thought fit. Decency became the scapegoat at the altar of freedom of speech. You are welcome to differ. It does not mean that the other guy is wrong. Social media diatribes of the last few days remind me:

“But Marcellus, who came to aid and support them, was not the man to shelter his troops behind the forts: his object was to defend the town by striking the first blow. When he saw the Carthaginians moving like a distant cloud across the plain and advancing towards the city, he shouted out: “To arms, my men ! To arms! The murderous foe is at hand”; and as he shouted he took arms himself. As he cried aloud, his officers gathered round him in haste and fastened the general’s blood-red plume to his helmet. Then his voice rang out, as he made a speedy disposition of his forces: “You, Nero, must guard the entrance of the right-Iiand gate; and you, Tullius, pride of the Volscians, march your countrymen and the soldiers of Larinum to the gate on our left; but, when I give the word, open the gates in silence and hurl a sudden shower ..............”.

As a lawyer, I am apprehensive of another flood, that of litigation. Many volcanoes are dormant in the form of plaint schedule properties or of files in public offices. Not all of them are spent. They may not remain dormant for long. We are yet to assess loss of records, private or public. The dimensions of impending property disputes are astronomic and catastrophic. It is for the lawyer fraternity to advise ill-fated litigants not to ignite the smoulders of litigation as far as possible. Sure, true grit of man is to love Mother Earth, not to exploit her.

I feel constitution of quasi judicial authorities at revenue division level will be welcome to determine and adjudicate disputes likely to occur between once-friendly neighbours or between State and citizens. Courts should not be burdened with another round of time consuming and ineffectual litigation in that area, given the present situation of generation old cases. The history of evolution of environmental law - though modulated periodically by the three constitutional compartments, depending to some extent on personal as well as political views – is appalling. The constitution of Munnar Tribunal was defeated, for reasons unknown to the public. If development is to be achieved by unbounded exploitation of natural resources, the coming generation will not survive to enjoy the benefits of development.

There is no purpose in damning the dams. They serve a purpose. Who is to be blamed for the negligence and consequence is a bitter topic right now, emotionally and politically. Legally, “Rylands v. Fletcher” has lifted its head again. The State, as the ultimate constitutional harbinger of welfare, has no sovereign immunity from liability in unleashing a monstrous force of nature on its citizens.

Come to think of it, had the dams been opened earlier at regular intervals, could not the verbal duels and appeal for contribution with intervals by salaried persons have been avoided?

It is time, once again, to introspect on the perversities we heaped on Mother Earth. It is not that we are short of laws on the subject. On the contrary, we have a flood of laws and rules thereon. The mechanism to enforce them got corrupted and bogged down somewhere along the line. Dear friends, who is our real friend? Who is our real foe? It is not Mother Nature. It is man himself. Let us rise above our differences.

Let us rise from ashes, let us rise from floods. Let us not undo what we began. “... I’m afraid more is needed. The prince must finish the job... and consummate the curse, which you and your friends have brought down upon yourselves” – Beni – The Mummy.

MY LAND NEEDS A HELPING HAND

(By Hon’ble Mr.Justice Dama Seshadri Naidu, Judge,

High Court­ of Kerala)

Adorable is my Kerala

Abundant in beauty and grace

Here the clouds open their wombs

And descend on earth as redeeming rains

The rain delights itself, says ‘hello’ to us

It sprinkles across the nation

Beginning only from Kerala, though

But !

This time the showers made us shiver

Water encircled us like a vicious villain

It drenched us like a delusion

The rain came not in drops, but in waves

Homes, fields, and even temples

The rain relentlessly trampled upon

The thundering water and our flowing tears

Got mixed like mayhem and misery

A land once ruled by Bali

Now trembles like a leaf, as it rains

A land that has given alms to the Almighty

Alas! Has stretched its hand, for help

It looks to Telugu people, too

Be generous, like a ray of light

Spread aid and cheer

Nature gets nurtured here

If you can wipe its tear !

Democracy – Dreams and Fulfilment

(By V.K.Babu Prakash,Secretary, Kerala Legislative Assembly)

Kerala Legislative Assembly is celebrating a ‘Festival on Democracy’ in connection with its Diamond Jubilee.  The perspective of the festival is to approach and analyse democracy in a more creative manner.  For fulfilling the hopes and aspirations of the people, for a society to dream and strive to accomplish the dreams, for a society to preach and practice freedom of expression and speech, for a society to uphold rule of law and its goals, people and modern political leadership consider Democratic Governments as the ideal one.  Since the appearance of the first Government around five thousand years ago, humanity has tried to steer a course between the violence of anarchy and the violence of tyranny.  In the absence of a Government or powerful neighbours, people and society tend to fall into cycles of violence and terrorism, with death rates exceeding beyond human imagination.  Early Governments pacified the people they ruled, reduced violence, but imposed a reign of terror that included slavery, harems, human sacrifices, genocide, summary executions without fair legal trial. When power concentrated in the ruler, slowly the indoxication of power spoiled him, which turned him to become despotic and tyrannical. Lord Acton’s famous quote, ‘Power tends to corrupt, absolute power corrupts absolutely’ has come out from the above proposition.

However, democracy as a form of governance has come into force among Human Society not too long ago. One can think of Democracy as a form of Governmet that threads the needle, excerting just enough force to prevent people from preying on each other without preying on the people itself.  As good Democratic Government allows people to purse their lives in safety, protect the society from violence of anarchy and in freedom.  For that reason alone, democracy is a major contributor to human flourishing.  Democracy  also has the advantage of higher rates of economic growth, fewer wars and genocides and healthier and better educated citizens and virtually no famines. If the world has become more democratic over time, that is progress. In a study conducted by the Social Scientist Samuel Huntington, he maintains that Democracy had three waves of progressive destiny in its history.  The first wave swelled in the 19th century, when the great enlightenment experiment, American Constitutional Democracy and scientific reformation made tremendous impact on Government power and it’s  functioning  on the welfare of the people. As a result of this forward movement, till 1922 around 22 Western European Countries embraced Democracy as their form of governance.  But this enthusiastic first wave was a little pushed back by the rise of fascism and by 1942 it ebbed to just 12 countries.  With the defeat of fascism in 1942 in the Second World War, the second wave gathered momentum as colonies gained independence from their masters who were mostly European overloads, pushing the number of countries who had joined Democracy to 36 till 1962.  Still, European countries were sandwiched between Soviet dominated non-democracy to the East and fascist dictatorships in Portugal and Spain to the South West.  The second wave was further pushed back by Military Juntas in Greece, Latin America, Asia, Africa and Middle East.  By the mid 1970’s the prospects for Democracy  looked bleak.  The West German Chancellor Willy Brandt lamented as follows, ‘Western Europe has only 20 or 30 more years of  Democracy left in it, after that it will slide, engineless and rudderless, under the surrounding sea of dicatorship’.

Before the ink was dry on the lamentation of Willy Brandt, democratization’s third wave lashed like a tsunami.  Military and fascist Governments fell in Southern Europe such as Greece in 1974, Spain in 1975, Portugal in 1976, the Latin America such as Argentina in 1983, Brazil in 1985, Chile in 1990 and Asia such as Taiwan and Philippines in 1986, South Korea in 1987, Indonesia in 1998.  The  Berlin wall which divided East & West Germany was demolished in 1989 to establish Democratic form of Government.  In 1991 by a historic turn around Soviet Union was disintegrated and Russian Republic was formed. Some African countries threw off their strong men and joined in Democracy.  India’s good old neighbour Nepal which had a traditional monarchic Government ended it and embraced democracy in 2008.  In 2012 Nepal enacted a written Constitution most of its provisions  borrowed from Indian Constitution.

Recently, UN published a graph showing that till 1989, 52 countries adopted Demo-cracy as its political form of governance.  In the beginning of 20th century, when the third wave of democratization unleashed, in 2000, Croatia, Siberia and in 2003 Georgia, in 2004 Ukrine, in 2005 Kirgiztan and about 87 countries switched over to Democratic form of Governance.  In 2015 the prestegious Nobel Prize for peace was awarded to a human rights organisation in the Muslim theocratic country Tunisia.  The organisation was the torch  bearer for the uprising of the ‘Arab Spring or Jasmine Revolution’ happened in 2011 which paved the way for Democratization in Tunisia.  In line with Tunisia, Myanmar and Nigeria joined the group of Democratic Countries.  As per the graph in 2015, 56% such as 105 world countries have joined the democratic brand wagon as their political governance. However, in some of the countries the Democratic governance was too weak or unpopular indulging in corruption and deficiency in good governance.  In some other countries theocracy held its grip on governance thereby political instability, military coup d’etat and highjacking the Government by religious leadership obfuscated the democratic purity. On an evaluation of the democratic governance as a whole world across, the picture is that countries which maintain secularism, freedom of speech and liberty, free and fair election, rule of law, independent judiciary, in such a system of Democracy the governance is far better and welfare oriented.  However, as Bertrant Russel exalted, ‘Democracy is not merely a form of governance in which people elect their representative Government in every five year, but essentially it is a system of culture in which everyone is concerned for the welfare of another, and the voice of dissent is carefully and tolerently listened to’.  In the true sense, in a democratic system, people must voice their dissent and disagreement with utmost freedom, when the Government goes wrong indulging in corruption and nepotism. It is one thing to say that Constitution guarantees freedom of speech and expressions, but it is another thing to say that there cannot by any freedom after such free speech and expression.  Freedom of speech and expression is the powerful  tool in  Democracy.  Media cannot lie low in such a system.  It lay awake day and night interacting with the people.  People cannot escape from such wakeup calls.  The noise of media is an inevitable nuisance which slowly influences the conciousness of the people and their opinions.  Sometimes,  it tends to seriously reflect in the election results.  There is a misconception about Democracy that people are stronger only till the election is over and thereafter they become irrelevent as power holders become relevant.  Such an argument is undemocratic and antipeople, told by Carl Popper in his scholarly book titled  ‘Open Society and its Enemies’.  He said in the book as follows, “The strength of Democracy is not that it decides who to govern the people,  but it is the powerful voice of the people as to find a solution to end a tyrannical and antipeople governance without blood shed.”  John Mullar, another social Scientist says that “In reality, Democracy means occasion to the people to raise their strong voice against their elected Government when it derails, as a result of which ruling leadership, understanding the public opinion, changes their way of governance to a more people friendly manner.”  John Mullar underlines the theory that public opinion is the boost and antidot in favour of and against a Democratic form of Government.

Rule of law is another essential character of Democracy.  It is called Parliamentary form of Democracy as well.  Essentially it means, the elected Government governs by enacting and implementing suitable laws with letter and spirit.  Powerful debate and discussion in the Parliament or Assembly strengthens the law making process.  Anti people laws can be amended or repealed by such a course of Parliamentary debate. Courts and Police have much more roles to play to preserve and strengthen Democracy. When the Police system cannot act independently and the courts cannot deliver timely justice, then the system slides.  It would lead to lawlessness and anarchy.  Enacting law is not enough to preserve the rule of law. In Indian Democracy, the penal law, its provisions, procedures and punishment are not at all deterents when mind sets of the criminals are polluted.  Recently, the Apex Court impelled upon the Government to pass a stringent penal law to check mob lynching.  It is yet to see whether anti-lynching legislation would be able to act an effective deterent on moblsynching or not.

Democracy is the system in which people have a right to dream and strive hard to get their dreams fulfilled. The elected Government acts and helps people to get their dreams fulfilled by choosing welfare measures and sustainable developmental goals.  It helps make a Society which  is most humane, tolerant, hatefree and developed.  John Kenneth Garbreith emphasises that Democracy is the ultimate scientific form of governance in which each citizen is a developed homo sapien in interior and exterior.  It eventually transforms everyone to listen to the voice of another like a music.

Expanding Horizones of Constitutional Rights

(By Girish Panju M.S., Deputy Director of Prosecution, Kottayam)

Ancient Indian saints had very much forecast in their life as well as death. Some saints even predict their exact date of death and embraced their fate on the same day. To them it was not a self-destruction, but a customary method of attaining Moksha, widely known in India as well as in Greece. The attitude towards annihilation of life is worth searching.
It contains moral, ethical, and legal issues.

Every human being has a natural instinct or desire to live a joyous life.

“No life that breaths with human breath has ever truly longed for death” Alfred Tennyson.

But when a man undergoing trauma of pain and sufferings, fettered by both physical and mental illness and rainbows in life become colourless and the octopus gripping firmly with its tentacles, so that the person “shall rise up never” the things should be different. In such cases the human being will be constrained to terminate his life by use of unnatural means. This may be due to biological or social reasons. When he closes the pain and suffering of this world by his own act we call it  “suicide”. But the end of the life of persons by others, though at the request of the person himself  is called “Euthanasia” or “mercy killing”. Often people with terminal illness or who became incapacitated and not prepared to live due to sufferings and ailments are the unfortunate victims who desire whether to live or die. It is a moral as well as a social problem and has to be viewed and examined in all its perspective. Our Apex Court has meticulously examined this matter in detail by delivering three classic judgments. Those are 1.GianKumar v. State of Punjab(AIR 1996 SC 946), 2. Aruna Ramchandra Shanbaug v. Union of India(2011 (3) KLT SN 26 (C.No.30) SC = AIR 2011 SC 1290)and finally Common Cause v. Union of India(2018 (2) KLT SN 37 (C.No.47) SC = 2018 (2) KLT OnLine 2047 (SC) = AIR 2018 SC 1665).

The concept of Euthanasia was legalised in Netherland and England. In the wake of such revolutionary changes, in the sphere of legislation, in many of the nations across the world hotly debated whether or not to follow the Dutch and English examples. In Gian Kumar’scase our Apex Court rejected the case of Euthanasia and thereafter in 2011 in Aruna’scase Hon’ble Supreme Court has given its verdict on this point and allowed passive Euthanasia in India. Recently in Common Causecase our Hon’ble Apex Court has delivered a classic and mile stone judgment in this aspect. As per Black’s Law Dictionary Euthanasia means the act or practice of killing or bringing about the death of a person who suffers from an incurable disease or condition especially a painful one. The word Euthanasia is derived from the Greek Word “Eu”and “thanatos” which means good death or easy death.Euthanasia may be classified as

1. Active or Positive

2. Passive or negative

3. Voluntary

4. Involuntary

5. Non voluntary

Active Euthanasia involves painlessly putting individual to death for medical reasons as when a Doctor administers lethal doze of medicine.

In Passive Euthanasia Doctor is not actually killing the patient. He is simply not suffering the life. For example, withdrawing of life supporting devices from a serious patient, removing which the patient dies.

Voluntary Euthanasia is practiced with the expressed desire and consent of a patient.

Involuntary Euthanasia is the practice of killing him without express wish from him to that effect.

Non-voluntary Euthanasia refers to ending the life of a person who is not mentally competent to make an informal request to die.

In such cases it is often the family members who make the decision. The ordinary means are lethal injunction i.e., injunction of lethal dose of a drug such as non poison and applying of carbon monoxide gas. In Maruti Sreepathy Dubai v. State of Maharastra(1987 Cr.L.J.743)the Hon’ble Bombay High Court distinguished Euthanasia and suicide. It held that suicide by its very nature is an act of self-killing or termination of one’s own life by one’s own act without the assistance of others. But Euthanasia means intervention of other human agency to end the life of another. The Hon’ble High Court took the view that it is thus nothing but a homicide. In Gian Kaur v. State of Punjabthe Hon’ble Supreme Court held the view that Euthanasia and assisted suicide are not lawful in our country. The Court how ever referred to the principles laid down by the House of Lords in Airedale case where the House of Lords accepted that withdrawal of life supporting system on the basis of informed medical things would be lawful because such withdrawal would only allow the patient who is beyond recovery to die a normal death where there is no longer any duty to prolong the life. Article 21 of the Indian Constitution guarantees the right to life. Five Judges Bench of the Supreme Court in Gian Kaur’s held that right to life does not include right to die. In that case it was further held that S.309 I.P.C. is constitutionally valid. But the Apex Court observed that the time has given consent, it should be deleted by Parliament.

But a new dimension was raised in Aruna’s case. Aruna was in a persistent vegetative state (PVS) and virtually a death person and has no state of awareness and her brain is virtually dead. The Hon’ble Supreme Court established a committee for medical examination of the patient for ascertaining her status. Lastly the court dismissed the petition filed on behalf of Aruna and observed that Passive Euthanasia is permissible under supervision of law in exceptional circumstances but active Euthanasia is not permissible in law. The court has further laid down some guidelines to  the Parliament to make the legislation legalizing passive Euthanasia that

(1)A decision has to be taken to discontinue the life support either by parents or spouse or other close relatives or next friend. The doctors attending the person can also take it. However the decision should be a bona fideone in the bestinterest of the person.

(2)Even if a decision is taken it requires approval from the High Court concerned.

(3)Then on such application the Chief Justice of High Court should forthwith constitute a bench of atleast  two Judges to decide the grant of permission. Before taking the decision the bench should seek the opinion of committee of three reputed doctors.

After Aruna’s case much water had flown down the bridge. In the recent Common Causecase the Hon’ble Apex Court meticulously evaluated all these aspects under the spirit of the growing constitutional rights. The question that whether a person should be allowed to remain in such a stage of incurable passivity sufferings from pain and anguish in the name of Hippocratic oath was answered by the Hon’ble Supreme Court in Common Causecase. The Supreme Court highlighted the question that “right to die with dignity “will come under the “right to live with dignity” as guaranteed under Article 21.It is interesting to say that though the petitioner claims right to die with dignity is part and parcel of right to live with dignity, right to die is not a part of right to life. In this juncture it is to be borne in mind that “right to life embraces not only physical existence but also the quality of life has understood in its richness and fullness within the ambit of Constitution (See P.Rathinam v. Union of India(1994 (2) KLT OnLine 1103 (SC) = AIR 1994 SC 1844).While considering the constitutional validity of S.309 I.P.C. in Gian Kaurcase the Hon’ble Apex Court straight away went to the extend of saying “In the context of a dying man who is terminally ill or is a PVS stage he may be permitted to terminate it by a premature extinction of his life in these circumstances. In this category of cases certainly the ambit of right to live with dignity included the right to die with the dignity.                         

The word life is broadly understood by the Hon’ble Supreme Court in Board of Trustees  of thePort of Bombay v. Dileep Kumar(1983 KLT OnLine 1205 (SC) = AIR 1983 SC 109)
that life does not merely connote animal existence or a continued drudgery through life.

Before that in Menaka Gandhi v. Union of India(1978 KLT OnLine 1001 (SC) = AIR 1978 SC 579) the luminary Justice Krishna Iyer took the view that “Life is a terrestrial opportunity for unfolding personality, rising to higher status, moving to fresh woods at reaching out to reality which makes our earthly journey a time fulfillment. It is not a tale told by an idiot, but a fine frenzy rolling between the heaven and the earth. Thus it is clear that individual dignity is a facet of Article 21.C.J.I.Hon’ble Justice Deepak Misra in his classic judgment in Common Causetook the view that the word life in Article 21 has to be construed as life with human dignity and take with its ambit “the right to die with dignity”. While adverting to situation of dying man who is terminally ill or in PVS, where he is, may be permitted to terminate it by premature extinction of his life, will certainly fall within the ambit of “right to die with dignity”. Hon’ble Supreme Court further held that only passive Euthanasia would come within Article 21 and not one, which would fall within the description of active Euthanasia in which positive steps are taken. Right to life and liberty is meaningless unless it is encompassed within its sphere of individual dignity.

In order to overcome the difficulty of patients who are unable to express their wishes at the time of taking a decision, the concept of advanced medical directives were introduced and a comprehensive scheme was also introduced by this verdict. Besides that a competent person can express his choice to refuse the treatment when a decision is required to be made. In addition to the above all advanced medical directive, the introduction of medical power of attorney is also significant. It empowers the patient to appoint an agent to take appropriate health care decision. Advanced directive can be executed only by a sound adult by a purely voluntary means. There should not be any iota of element of coercion or inducement or undue influence. It should be by writing in clear and unambiguous language. The documents should be signed by the executor in the presence of two attestors and counter signed by a Judicial First Class Magistrate designated for this purpose. In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of ailments the doctor can ascertain the genuineness of the documents from the JFCM. Then a medical board consisting of experts shall visit the patient and take an appropriate decision, which is only a preliminary opinion. If the preliminary opinion is to the effect that instructions contained in advanced directive ought to be carried out, then an apex body of medical board consisting of experts should visit the patient and say the final word. It is always permissible to the executor to revoke his decision at any stage. If the permission to withdraw the medical treatment is rejected by the medical board, the executor or his family can approach the constitutional courts by way of Writ Petition. Apex Court further clarify that these directions with regard to the advanced directions and safe guards shall remain in force till Parliament makes suitable legislation. We hope that the Parliament of India will rise to the occasion and will pass a foolproof legislation in tune with the spirit of the historical verdict of the Supreme Court, which protects and highlight the concept of human dignity.

‘Freedom of Choice’ Whether it is an Unfettered Claim

(By Devi A.R., Section Officer, Law Department, Govt. Secretariat, Trivandrum)

Black’s Law Dictionary defines freedom of choice as the liberty embodied in the exercise of one’s rights (Black’s Law Dictionary Seventh Edition at P. 674). It simply signifies the freedom to choose. The term freedom of choice as such is not seen in the Constitution of India but it is underlined therein. To what extent ‘Freedom of Choice’ is to be recognised is a relevant question in the present scenario where, there is judicial trend of recognising the freedom of choice overweighing the statutes.

 In a democratic welfare society no right can be granted as unfettered. Even the so called magna carta of the Constitution itself is subject to reasonable restrictions imposed by the Constitution. If the freedom to choose is recognised as an unfettered right then there is no call for written laws passed by the legislature. A statute is legislative product that has undergone legislative process, considering the socio legal issues, its constitutionality and also the public opinion. In that manner statutes are the voice of the society. Even punctuations like a coma or high fen speaks a lot in legislation. The court of law while considering the legality of the provisions in the statute, is not supposed interpret it against the spirit of the legal letters therein.

 When the statute prescribes an epoch for an individual to do or not to do an act then the legal forum may not go against it. And if it does so, then it will be the judicial encroachment upon the legislative will. For instance, a citizen cannot cast vote if he has not completed the age of 18 years. In criminal law exemption available to a child as ‘dolly in capes’’ cannot be granted to a child who is above the age of 7 years. Leniency available to a child in conflict with law cannot be claimed by an adult offender.

While deciding a matter, which is covered in the sphere of a statute, the court of law is not supposed to go in opposition to the provisions of the statute.  Every word in the statute has its own meaning in its sphere of application. It is applicable only in that context unless and otherwise its general application is intended by the legislature.

 Coming straight off to the cause of action of this article,i.e., the judgement of the Hon’ble Supreme Court of India in Nandakumar Anr. v. State of Kerala(2018 (2) KLT 783 (SC).
The brief facts lead to the appeal before the Hon’ble Supreme Court is that according to the appellant, his marriage was solemnised with Thushara on 12.04.2017 at the Chakkulathukavu Bagavathi Temple situated in the Trivandrum District, Kerala. As on the date of marriage she was admittedly 19 years of age and she started living with appellant No.1 as his wife. Respondent No.4, the father of Thushara, filed Habeas Corpus petition before the High Court of Kerala alleging therein that ever since 10.04.2017, his daughter Thushara was missing. It was the contention of respondent No.4 that appellant No.1 was less than 21 years of age and, therefore, he was not of marriageable age. The High Court found that he would be attaining the age of 21 years only on 30.05.2018. Therefore, on 12.04.2017, when the marriage was solemnised between appellant No.1 and Thushara, appellant No. 1 was not of marriageable age. On that basis, the High Court concluded that the daughter of respondent No.4 is not the lawfully wedded wife of appellant No. 1. Also remarked that apart from the photographs of marriage which were produced in the High Court, there was no evidence to show that a valid marriage was solemnised between the parties and that a certificate issued by the local authority under the Kerala Registration of Marriages (Common) Rules, 2008, was also not produced and allowed the Writ Petition by entrusting the custody of Thushara to her father. 

The Honb’le Supreme Court allowed the appeal and set aside the judgment of the High Court of Kerala in the case. While setting aside the judgement, the Honb’le Apex Court relied on its own decision in ‘Shafin Jahan v. Asokan K.M. & Ors.’ (2018 (2) KLT 571 (SC) and made the following pertinent observations:-

“We need not go into this aspect in detail. For our purposes, it is sufficient to note that both appellant No. 1 and Thushara are major. Even if they were not competent to enter into wedlock (which position itself is disputed), they have right to live together even outside wedlock. It would not be out of place to mention that ‘live-in relationship’ is now recognized by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005...”

                                xxx                                xxx              xxx

In a recent judgment rendered by this Court in the case of ‘Shafin Jahan v. Asokan K.M. & Ors.’(2018 (2) KLT 571), after stating the law pertaining to writ of Habeas Corpus, this writ has been considered as “a great constitutional privilege” or “the first security of civil liberty”. The Court made the following pertinent observations: -

“28. Thus, the pivotal purpose of the said writ is to see that no one is deprived of his/her liberty without sanction of law. It is the primary duty of the State to see that the said right is not sullied in any manner whatsoever and its sanctity is not affected by any kind of subgterfuge. The role of the Court is to see that the detenue is produced before it, find out about his/her indpendent choice and see to it that the person is released from illegal restraint. The issue will be a different one when the detention is not illegal. What is seminal is to remember that the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees. It is so as the expression of choice is a fundamental right under Articles 19 and 21 of the Constitution, if the said choice does not transgress any valid legal framework. Once that aspect is clear, the enquiry and determination have to come to an end. 

                            xxx                              xxx                   xxx

“...However, since Thushara has not appeared as she was not made party in these proceedings, while setting aside the directions of the High Court entrusting the custody of Thushara to respondent No.4, we make it clear that the freedom of choice would be of Thushara as to with whom she wants to live.”

With due respect to the decision of the Hon’ble Supreme Court , it seems that, the judgment  in Nandakumar & Anr. v. State of Kerala(2018(2) KLT 783(SC)), has left two legal
questions for discussion

I. Whether the meaning assigned by the legislature in a special statute can be generalised and applied in another context ?

II. Whether freedom of choice is above a written statute, as far as the statute is not declared as unconstitutional ?

Whether the meaning assigned by the legislature in a special statute can be generalised and applied in another context.

The concepts of proper or improper may differ according to the persons, circumstances and values of the society where we live in. Then who decides the legality of the matter, earlier times the societal norm and now, in a democratic welfare society the written law passed by the legislature, which is supposed to be the voice of the people. While a constitutionally recognised legal forum interprets the provisions of a statute it is supposed to move in par with the intention of the legislature.

In the instant case, The Hon’ble Apex Court upheld ‘live together’ as it is recognised by the legislature in the   Protection of Women from Domestic Violence Act, 2005. The said Act is primarily intended to protect women who are victims of domestic violence .Even though it covers the female live in partner, it is recognised only for the purpose of protection of the women ,who is stricken by domestic violence. The law also extends its protection to women living in a household such as sisters, widows or mothers. It is a special law focused on protecting the women victims who are in a domestic relationship. As it is a special law the definition therein is meant for the limited purpose of protecting the women from domestic violence. Hence it cannot attribute general application. The Long title of the statute make this position clear which is quoted below:

“An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.”

Whether freedom of choice is above a written statute as far as the statue is not declared as unconstitutional.

In the case at hand, i.e., Thushara’s case the Hon’ble Apex Court relied on the judgement in Shafin Jahan v. Asokan K.M. & Ors. (2018 (2) KLT 571 (SC) wherein the Hon’ble Apex Court made the following pertinent observations:-

“... It is so as the expression of choice is a fundamental right under Articles 19 and 21 of the Constitution, if the said choice does not transgress any valid legal framework.”

In the above observation the Hon’ble Apex Court recognised the freedom of choice as fundamental right unless it transgresses any valid legal frame work. In Thushara’s case there is a valid legal frame work that is, the Hindu Marriage Act, 1955 and as per Section 5 (iii) of the said  Act  the bridegroom should  have completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage;”  and the said Act  is not yet declared as unconstitutional by a competent court or declared as void by a subsequent legislation. Moreover as per the Prohibition of Child Marriage Act, 2006 “child” means a person who, if a male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age  and “child marriage” means a marriage to which either of the contracting parties is a child.

The decision of the Honb’le Supreme Court in Thushara case involves the socio legal issue of sanctity of marriage. Legally recognising the living together for the sake of freedom of choice, against the marriage laws in force, will adversely affect the sanctity of marriage.

Concluding the writing, with the following legal quiries before the legal fraternity to fix on, 1.As freedom of choice is recognised overweighing the Marriage laws in force, what would be the sanctity for a legal marriage? 2. Whether the Court will appreciate the use of narcotic drugs, termination of pregnancy etc., as these matters highly involves freedom of choice.