Some Thoughts on Celibacy : At and After “Sabarimala”!

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

Swamiye Saranam Ayyappa!

Non Sub Homine Sed Sub Deo Et  Sub Lege: “Not under man, but under God and law”?

Is not the ruling a milestone, a lollapalooza? Is it? Article 14 has been given a new dimension. I will not be justified in concluding on the correctness of the ruling, given my conventional understanding of law and personal convictions.

Our nation took pride in conducting “surgical strikes” at the enemy within its territory. Without being contemptuous, but admiringly, I would say that the Apex Court has conducted a “Judicial Strike” on home territory.

The judgment is sure to form the foundation for the ineluctable Uniform Civil Code, however inconvenient it may be to many. It is welcome from the viewpoint of equality, as a matter of constitutional philosophy. It is unwelcome from the viewpoint of conventions and faith. Not all men are misogynists. If gender segregation in worship is violative of Article 14, I dread that religions may not survive. Many religious philosophies, denominational or not, are bound to crumble in the teeth of Article 14. I have an apprehension, constitutional philosophy notwithstanding, that we are trespassing on “No Entry” areas.

“Public policy is a very unruly horse and when once you get astride it, you never know where it will carry you”. That unruly horse is evolving. It is also being manipulated, for and against, by excogitation of many acclaimed (or self-proclaimed) theologians, public figures and vulgarians. I will try to assimilate them in due course. On these pages, I will speak as a lawyer, not as a fanatic.

Lord Ayyappan was here long before Genghis Khan and Company, before Vasco De Gama, during Mughal era, during the Raj. He has continued to be with us after 1947 and 1950. He was truly secular. Ayyappan and Vaavar formed the first blood bond between Hindu and Muslim. I am sure they will bless us forever. Sabarimala abode and worship thereat are unique examples of religious tolerance anywhere in the world. It is unfortunate that certain sections of people are stoking the fire on origin of Sabarimala. Are they not forgetting that Sabarimala Ayyappan is the ultimate symbol of unity of all faith and religion?

Hinduism is the only religion where Gods are attributed human traits, tastes and character. THATHWAMASI was recognized and practiced by faithful Hindus from the day Brahma took up Srushti, Vishnu took up Sthithi and Siva took up Samharam. We find that principle originating in Smrithi, Sruthi, in Vedas, Upanishads, Ithihasa, Purana and subsequent renderings. No other religion recognizes coalescence of God and man. I will refrain from launching a discourse on religion and God. But, reference to certain religious practices is inevitable.

The learned Judges formulated the following questions for consideration:

“1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by “morality‟ as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to indulge in such practices violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and , if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?”

Swami, devotees come to you with hearts bleeding with faith, sorrow, devotion and dedication. Many of them observe abstention for 41 days to come to you for solace, to embrace THATHWAMASI. I will not endorse that all male devotees at Sabarimala are puritans. But, do we need bleeding “Rambha”s (misled into disturbing Viswamithra’s penance) at your abode? Let us also not ignore the fact that “a good deal of research shows that in reproductive-age women, libido is to some extent cyclical across the menstrual cycle, with peak erotic motivationoccurring around the time of ovulation midway between menstrual periods. It’s evolution’s way of spurring procreation” -(https://www.psychologytoday.com/us/blog/all-about-sex/201503/how-the-menstrual-cycle-affects-womens-libido).

It is not only just right of entry into a place of worship that is the bedrock of faith, but also sincere willingness to follow its practices and conventions that sustain any religion. To be Hindu, temple worship is not essential. But if he/she wants to offer worship at a temple, he/she has to follow accepted customs. Almost every Hindu temple has either a pond or river nearby. A Hindu priest will be committing blasphemy by performing pooja at the sanctum sanctorum without the ritualistic bath every time, every day. There are ordinary men and women who treat and accept that interaction, even by touch, by man with a menstruating woman causes bodily impurity. Is it superstition?

I am sure God in any religion does not expect every devotee to be learned in scriptures and be well versed therewith, but He blesses them anyway. The Constitution accepted this fact and recognized religious denominations. What is “essential practice” to many will not be so to some others.

Nobody has monopoly over faith. Think of Sreenarayana Guru who dared to consecrate his own Lord. There has been only progress thereby. Lord Siva never said a word against his personality being divided or regenerated.

Logically and scientifically, one may be wrong in holding that unshed blood in the human body and menstrual blood in the female body are same. Menstruation is a caveat to maintain biological balance. Untouchability has nothing to do with it. There is no flaw in its flow. An infant is taught the ways of religion as its parents and teachers understand it. It is not an imposition. It develops its own view as it grows up. Nothing prevents it from going astray (?) and abstaining from faith. I have not noticed much in the early scriptures germinating gender inequality, except as a matter of faithful religious practice.

It is common knowledge that many persons do not observe age-old religious customs. Many others do follow those customs. Just the way a person may be entitled to offer worship in a particular manner subject to a particular shrine’s custom, the other person is not entitled to interfere with the same. It will be foolish to assume that every entrant in a shrine has come with the intention only of offering worship.

That takes me to the following observations: “Therefore, there seems to be no continuity in the exclusionary practice followed at the Sabarimala temple and in view of this, it cannot be treated as an essential practice” and “Of importance are some of the observations of the Kerala High Court in Mahendran. The High Court noted that even when old customs prevailed, women were allowed to visit the Temple. It noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the Divan, had visited the Temple in 1115 M.E. The High Court noted that the Temple has seen the presence of women worshippers between the ages of ten and fifty for the first rice-feeding ceremony of their children..... The Secretary of the Ayyappa Seva Sangham had deposed that young women were seen in Sabarimala during the previous ten to fifteen years. A former Devaswom Commissioner admitted that the first rice-feeding ceremony of her grandchild was conducted at the Sabarimala Temple. The High Court found that during the twenty years preceding the decision, women irrespective of age were allowed to visit the temple when it opened for monthly poojas, but were prohibited from entering the temple only during Mandalam, Makaravilakku and Vishu seasons. The High Court thus noted multiple instances wherein women were allowed to pray at the Sabarimala temple. These observations demonstrate that the practiceof excluding women from the Sabarimala temple was not uniform. This militates against a claim that such a practiceis of an obligatory nature. That such practice has not been followed on numerous occasions, also shows that the denial of constitutional protection to an exclusionary practice will not result in a fundamental change in the character of the religion .........”

It is heard that Her Excellency the Maharani was medically qualified to visit Sabarimala. The Supreme Court have accepted other isolated breaches of custom as indicative of its non-observance. Swami Saranam. Those breaches had to be remedied. There was nothing ordinary civil courts could do in that matter. The Hon’ble High Court declared what the custom was, that it was within the parameters of law, that it could not be violated. The Supreme Court also noted that “A fervent plea was made by some of the counsels for the Respondents that the Court should not decide this case without any evidence being led on both sides. Evidence is very much there, in the form of the Writ Petition and the affidavits that have been filed in the Writ Petition, both by the Petitioners as well as by the Board, and by the Thanthri‘s affidavit referred to supra. It must not be forgotten that a Writ Petition filed under either Article 32 or Article 226 is itself not merely a pleading, but also evidence in the form of affidavits that are sworn”. I think that whether the present custom was observed in its breach or by its practice is a matter of factual enquiry as in a trial court and not the Writ Court. Stray incidents of breach of an established custom cannot be taken as proof of its non existence or non-observance, but only as a situation compelling enforcement of its observance, as done by the Hon’ble High Court.

The Apex Court, have ruled that “notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality”. A custom need not be enforced at all if it is immoral from the viewpoint of ordinary humans (devotees in this case). Restraint on temple entry by females during menstruation has been the morale, morality and custom of Hinduism. In Sabarimala, that was widened and segregated to a class of females aged 10 to 50. That was also because of constitutional morality of the faithful and not as a “colourable device to practise religion”. It does not amount to deprivation as far as large number of female devotees in Kerala is concerned.

Legal rights have to be uniform. The present situation amounts to deprival of a legal right based not on morality but on faith, a constitutional right. Morality is a consequence of faith, not its source.

If this be the law, then Chapter XV I.P.C. (of offences relating to religion) will have to be revisited and rewritten. Did the Court overlook those provisions? Did not the Court also overlook the present demeaning trend of people competing to heap abuse on one religion or other on social media? Where is equality to the faithful? Freedom of religion and practice thereof does not confer a right to hurt another. If we take the Karnataka example, caste division is finding new inlets, tearing unity apart.

Much reliance has been placed on the concept of untouchability. Untouchability was an abominable practice to differentiate between people, not faith. I am of the firm view that it is wholly foreign to the controversy. It is overlooking the fact that followers of all religions, castes and creeds are welcome at Sabarimala. Untouchability has nothing to do with menstruation. Think of crores of nuclear families residing together since decades in huts, capsule flats and palaces without being inhibited by menstruating members among them. Many of them observe fundamental customs in the kitchen, temples and pooja room. Many of them do not. If discrimination is the standard basis in daily lives, many households will have to be separated at the will of either of the sexes.

The beauty of India is in its diversity and cohesion, despite the poisonous web of caste and religion spun around her citizens. There is creativity and beauty in banning gender discrimination in many areas.

Let charity begin at home. Equality is not only to be observed, but also seen to be observed; there are more other avenues demanding equality. Let the Government ensure that 50% of all public offices are adorned by women. Let the Devaswom Board also so ensure, for a beginning.

Even Gods fought among themselves for supremacy. The situation is plagued by the present system of upsetting precedents, as seen in a series of cases during last few decades. “Change” in society is a must. But that ought to be brought about by the WILL of the people and not by Judges whose views are many times open to reconsideration by other Judges eventually. For instance, consider enactments on various religious activities and amendments thereto in independent India. No Judge lives forever, except through his judgements.

Henry VIII formed Church of England because of failure to secure annulment of his marriage to Catherine of Aragon. Those were days of monarchs and theocracy. They did not have Article 14 or 19 or 25 to reckon with. Ordinary Ayyappa devotees have neither the thought nor the potential to break away from Sabarimala.

When Swami Ayyappan set up abode in the hills, when Lord Murugan and countless others directed man to set up divine abodes atop mountains, when Moses went up Mount Sinai, when the Prophet met Gabriel at Jabal an-Nour, they would not have thought of gender discrimination and allied controversies. Pampa Valley has been famous for its beauty and divinity. Pampa River has been notorious for pollution. We are a nation trying to save environment. Sabarimala region is a classic example of nature’s gifts being abused. Millions of people and commercial elements have abused Sabarimala and neighbouring hills for decades. Can the authorities enforce “Polluter pays” principle? Will the Devaswom Board ensure environmental equilibrium and fragility?

(QUAERE) Did not the question of locus standi merit consideration? I doubt whether any of the petitioners before the Court in the name of the Lord will chant “Swamiye Saranam Ayyappa” or observe the rituals associated with a pilgrimage to Sabarimala. Will they accept THATHWAMASI as a guiding principle? Will he/she demand that any particular ritual should be performed or that it should not be performed because it discriminates between religions or because it discriminates between God and Goddess? Will he/she say that performing Homam and cracking/burning coconuts causes air pollution? How can persons who do not believe in idol worship express solidarity with persons they style as “idolatrous unbelievers”?

When we let unbelievers regulate our belief and practice, there is bound to be loss of faith. That is the seedling of discrimination. Should “We, the People” chant “Fiat justitia ruat coelum”?

Swamiye Saranam!

Ratio-decidendi

(By K.Jagadisachandran Nair, Advocate, High Court of Kerala)

1. The precedent value of a decision depends on the ratio or reason for the decision.  It is not at all being looked into by a large number of lawyers at the Bar and some Judges.  So it seems, it  may not be out of place to write a few words on the said subject in the hope that it will be of some use at least to the younger members of the profession, who may care to read this article. Ratio decidendi means the reason behind the decision. In fact  the reason alone  is the precedent.  Without  reasons the Judge’s findings can amount to a decree  which is binding only on the parties. Restricting it to the younger members of the bar, not because I assume that all seniors know and are aware of it whenever they cite decisions.  It is only  common knowledge that in some respects the new generation lawyers are better than their predecessors in the profession.  I often recollect the wise words of Chief Justice Rajamannar of the  Madras High Court who told law apprentices to attend the court from morning to evening with a caution; it is not to repeat the mistakes committed by your seniors at the bar but to avoid committing the mistakes committed by them.  

2. What is the ratio of a case and how does one case become an authority for deciding another.  (a) The decision must be by a higher court or by a larger bench of the same court and hence liable to be respected by the principle of judicial discipline.  Then only it is a precedent.  Of course if a bench takes a different view than the larger bench and thinks the said decision has to be reviewed  the bench may place it before the Chief Justice for constituting a larger bench. That is only an internal arrangement in the higher courts.   (b) The decisions to be cited as a precedent must have decided some legal question or principle must have been laid down in the decision.  It must have been a question in dispute on the facts of the case, between the parties. It must have been a question the decision of which was essential to be resolved in order to decide that particular dispute. If even without deciding the question the case could have been decided on other issues of fact or law admitted or undisputed then it does not arise for decision. (c) Next the principle of law decided must have been applied to the facts of the case for the purpose of deciding the case and only if all these three steps stated above are fulfilled, then only the decision becomes a valuable precedent and the ratio of a cited decision can be applied as a precedent in deciding the new case. If any of the above steps is not applicable then it is not a precedent and there is no use in citing it and it cannot the applied as a precedent.  I may here cite one famous example in AIR 1979 SC 745 a Constitution  Bench consisting of 5 Judges decided by the majority of 3.  The majority  judgment  was delivered by Justice V.R. Krishna Iyer.  After considering the real issue involved in the case Justice Krishna Iyer proceeded to consider and decide and purported  to lay down the law regarding Section 384 of the Code of ‘Criminal Procedure. The said decision was cited before a bench of three judges  which  is reported in AIR 1980 SC 1707.  The three judge  bench refused to follow the view expressed by Justice Krishna Iyer regarding Section 384,  for the simple reason that the question did not arise before the Constitution Bench and without it becoming a precedent  according to the principles as stated above, it could not be applied and was not applied in the later case;  the relevant passages are quoted below (AIR 1980 SC 1707 Paragraph 6 & 7).

“Para 6. Neither in the application for adducing additional grounds nor in the order of the court directing the matter to be placed before the Constitution Bench, there was any reference to the validity of Section 384 of the Cr.P.C. Neither was it pleaded during the arguments that S.384 of the Cr.P.C. is ultra vires of the Constitution.  As the question of validity of S.384 of the Cr.P.C. was neither raised nor argued, a discussion by the court after “pondering over the issue in depth would not be a precedent binding on the courts”.  The decision is an authority for the proposition thatR.15 (1) (c) of O.XXI  of the Supreme Court Rules
should be read down as indicated in the decision.

 7. We are satisfied for the reasons stated above that the decision is no authority regarding the scope of S. 384 of the Cr.P.C.  The order of dismissal of the appeal summarily will stand”.

3. As at present I am not engaged in discussing which view is the correct law regarding Section 384. I do not venture to state my opinion on it. 

4. The question that is being considered here is not an unimportant and purely academic question.  On the other hand it is a very crucial question as we will see on a critical examination of many judgments by all the courts both High Courts and the apex court we will be sorry to discover that the points highlighted are often not at issue and merely collateral and discussed at length forgetting that it is more or less a  wasteful exercise of judicial time and space.  So I submit that always when we want to rely on a decision it has to be verified first whether it is a legally valid precedent and whether the ratio decidendi in that case is relevant and applicable in the case on hand.  The same applies to decisions cited by the opponent which you will be called upon to distinguish.  In my view unless such an exercise is resorted to by lawyers it is possible that much havoc will be caused in the delivery of justice according to law and the result we will be getting judgments which cannot be sustained in law. 

5. Though the law on a particular point at a particular time is the “last word by the last judge”, it shall not be against the law and a mere mistake of some lawyer or judge due to want of proper application of a legal mind to it.  I am not at all arguing for making the rules stringent but only pointing out the fact that if we have to render equal justice to everyone this sort of exercise cannot be avoided.  I am not citing more recent mistakes than what is quoted already not because of the absence of such cases.

6. If the editorial section of the law journals do some intelligent and worthwhile selection of the number of judgments handed down for reporting and report only cases where a new legal question or any new aspect of it is decided the volume of legal literature which forms essential reading for the lawyer will be reduced and there will not be so much pages of case law reported so as to make it nearly impossible for any student of law to keep abreast of the reports to be up-to-date in the law.  As the reports deal with high courts and apex courts it is not open to a careful student to avoid reading the reports from cover to cover or at least the case headings and head notes to ascertain whether anything new has been delivered.
A useful publication like that will reduce the workload of the lawyer and the judge comfortably to a very large extent.

7. There is an absence of proper digests also.  Formerly there were all India digests covering all the High Courts and Apex Court.  But unfortunately the quality of digests now available leave much to be desired. I have seen an “acquittal digest” but no “conviction digest” fortunately.  How ludicrous.   

8. To the editors of law journals my request is please, do not report all the cases unless each case lays down something new.  If it is a mere repetition of settled law why waste time and money to publish it. It is of interest only to the parties.  The Apex Court reports and the High Court reports show that at least fifty percent of the cases are of interest only to the parties and do not lay down anything new.  When examined it will show some times that age old settled positions are retraced from its roots so as to make legal history or a catalogue of all the decisions on the point. It helps the student but is it worthwhile to be added to the legal literature ?  I leave such thoughts to the discerning readers.

Negotiating on the Negotiable Instruments Act, 2018

(By Sreejith Cherote, Advocate, Calicut)

“Rule of law” giving way to “Rule of commerce” is a worldwide vogue and it shouldn’t be embarrassing, if the same phenomenon happens in case of a law which was introduced for the sake of commercial expediency. The question is, whether the set of rules and judicial principles considered as inviolable essentials of legal jurisprudence is worthy to be discarded, as they have become a burden on the commercial philosophy of business.

The customs, usages, practices of the merchants and traders, adopted by the legislature and ratified by the decisions of courts, is in short, the Negotiable Instruments Act 1881, as we see it now. If we follow the history of amendments in the Negotiable Instruments Act, probing for a reason for their necessity, it’s apparent that the law was always responding to the challenges espoused by the trading community through these amendments. The fact that 2018 amendment is not an exception to this rule is no reason to be amazed. This time legislative off-roading is at the base of the garden of Justice. Let’s examine the damage.

The Negotiable Instruments Amendment Act 2018 introduces to the legislative book, two new sections. Section 143A and Section 148 which reads as follows.

Section 143A. Power to direct interim compensation.--(1) Notwithstanding anything contained in Code of Criminal Procedure, 1973 (2 of 1974) 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.

(b) In any other case upon framing charge.

(2) The interim compensation under sub-section (1) shall not exceed twenty percent 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 complainant.

(4) If the drawer of the cheque is acquitted, the court shall direct the complainant to repay the drawer of 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 onsufficient 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(2 of 1974).

(6) The amount of fine imposed under Section 138 or the amount of compensation awarded under Section 421 of the Code of Criminal Procedure 1973 (2 of 1974) shall be reduced by the amount paid or recovered as interim compensation under this section.”

Section 148. Power of Appellate court to order payment pending appeal against conviction.— (1)Not withstanding anything contained in 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 minimumof twenty percent 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.”

The purport and purpose of these two sections is to give “interim compensation” to the payee of the cheque, both at the trial stage and at the appellate stage. The reason for the amendment may sound harmless and perfectly in tune with the justice of trade. But what militates against the concept of legal justice is the statutory condition enabling the court to impose a monetary burden on an accused based on the allegation made against him, before trial. It seems that the Legislature, intoxicated by the overdose of commercialization has lost sight of the fact that Section 138 coming under Chapter XVII of the Negotiable instruments Act 1881 is a penal provision in which the accused cannot be made to suffer, even for a temporary period, the consequence of his alleged illegal actbefore trial. The payment of “interim compensation”, in effect is a sentence, teaser trailer, and is against the basic principle of criminal jurisprudence, that the accused shall be presumed innocent until found guilty by a competent court.

It’s true that there are legislations creating absolute liability, doing away with the need of a guilty mind and negating the requirement of “mens rea” in criminal offences, likeSection 29 of the PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT 2012 - (POCSO ACT) etc. Such legislations presume a guilty mind and it is for the accused to prove the contrary, that he is innocent. Courts have tolerated and upheld such legislations as valid, even though literarily against the judicial doctrine of presumed innocence of the accused, only considering the sociology of law, that such legislation was need of the hour. It was an active judiciary overlooking the damage to the doctrine of innocence for a larger social purpose and such an approach is perfectly justified considering the object to be achieved through such legislations.

The situation here is different. It is not the presumption of guilt that matters. An accused is made to suffer an advance punishment before trial. This pre-delivery of legal consequence before a lawful climax of a judicial process is perfectly alien to the judicial system we follow. The aforementioned practice doesn’t seem to be supported by any authoritative precedent, practice or judicial doctrine.Rather itseems to be a new rule conceived for commercial compulsion. The pretrial payment, the accused has to make, as a token of proposed punishment in advance, is a blatant violation of natural law, justice and against the very spirit of criminal jurisprudence.

When offended by a travesty of a statute, on criminal jurisprudence, every lawyer becomes an instinctive critic, goggling for anomalies within the legislation to taint it totrash and when viewed from this anglesome more provisions seems ambiguous and meaningless.

The fact that the accused is made to make a pretrial payment of Interim compen-sation” as a token of proposed punishment, inadvance, can be ordered to be returned, if the accused is acquitted by the court, does not mitigate the gross injustice which is done to the cherished rights of the accused and also to the essential of judicial principles.

Further Section 143A(5) provides that the “INTERIM COMPENSATION” payable under this Sectionmay be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 (2 of 1974), keeping at an equal footing the complainant and the accused in the matter of recovery of the amount paid by them as per ordered by the court. There is no such provision in the appellate stage under Section 148 making it absolutely ambiguous as to how the amount deposited by the Appellant and released to the complainant/respondent as “interim compensation” shall be recovered if the appellant is acquitted. The words “Under this Section” appearing in Section 143A(5) is a conscious deliberation by the Legislature, confining the relief of recovery of “interim compensation” paid as per the order of the court, only to the amount deposited at the trial stage. The reason for this discrimination doesn’t seem to have any bearing on the object of the amendment.

It is true that every aspect of the society is intruded by commercial interest, which in course of time, sets benchmark for human conduct and later for the law to follow. There seems to be no escape for the “rule of law” from this “rule of commerce”. It is also acceptable that in a globalized economy banking system should be strong and cheques should be given a commercial sanctity at par with cash or other modes of cashless payment and dishonour of cheques should be treated as a disgrace tohealthy commerce and has to be eradicated as if a disease .What is unacceptable is the possibility of this commercial crusade against dishonour of cheques culminating as a “Dishonour” and “disgrace” to the legal system.

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.

Can A Co-operative Society Refuse to Supply its Membership List to the
Public Information Officer of the Co-operative Department?

(By R.Muralidharan, Consultant, Co-operative Department, Puducherry)

The Supreme Court settled the jurisdictional limit of the Right to Information Act, 2005 vis-à-visCo-operative Societies in Thalappalam Service Co-operative Bank Ltd., & Ors.v. State of Kerala & Ors.(2013 (4) KLT 232)and ruled that Co-operative Societies do not answer the definition of ‘public authority’ under S.2(h) of the Act unless they are substantially financed by the appropriate Government.  However, a citizen can have access to information of a co-operative society through the Registrar, who is a public authority. The Registrar cannot access all the information from a co-operative society, but only that information which it is legally obliged to pass on to the Registrar and also only those information to which the Registrar can have access in accordance with law.

When an applicant seeks the membership list of a co-operative society and files an application to the Public Information Officer (PIO) of the Co-operative Department and when the PIO, in turn, forwards the request to the society to provide such information, can the society take a plea that the society is not legally obliged to part with the membership list to the office of the Registrar of Co-operative Societies was the interesting question came to be decided by the High Court of Kerala in Nedungapra Service Co-operative Bank Ltd., v. the Public Information Officer/Assistant Registrar of Co-operative Societies, Ernakulum & Ors. W.P. (C).No.20772 of 2018  dated 25.6.2018 (2018 (3) KLT 355).

The petitioner, viz., Nedungapra Service Co-operative Bank Ltd. was aggrieved by the issuance of proceedings at the instance of the 1st respondent, PIO/Assistant Registrar of Co-operative Societies, Ernakulum whereby the petitioner has been directed to make available a copy of the list of members of the petitioner Co-operative Bank as on 25.5.2018.

The 1st respondent is the notified PIO attached to the office of the Assistant Registrar of Co-operative Societies. For collecting the information sought for by the third respondent, the 1st respondent had requested the petitioner co-operative society to make available copy of the list of the members of the petitioner society as on 25.5.2018. The petitioner objected to the said request by taking the stand that the said information sought for by the 1st respondent was not one that was obliged to be maintained by the 1st respondent as per the provisions contained in the Act, Rules, Government Circulars, Government Orders etc., it was contended by the petitioner that there was no question of making available the said information. The 1st respondent has informed the petitioner that under the mandatory provisions contained in R.33(4) of the Kerala Co-operative Societies Rules, 1969 every Co-operative Society is obliged to maintain a list of its members as on the last day of the Co-operative year concerned and that a Co-operative Society is obliged to make available copies of such list to the members concerned.

It was argued by the petitioner that going by the legal principles laid down by the Apex Court and by the High Court of Kerala in the matter of disclosure of information under the R.T.I. Act by the Co-operative Societies, the said information is not a disclosable one. There cannot be any doubt that in the light of the decision of the Apex Court in Thalappalam Service Co-operative Bank Limited & Ors. v. State of Kerala & Ors. (supra), a co-operative society like the present petitioner would not fulfil the definition of ‘public authority’ as defined in S.2(h) of the R.T.I. Act. However, an interested person can maintain an application under R.T.I. Act for disclosure of information from the notified PIO attached to the offices of Assistant Registrar, Joint Registrar of Co-operative Societies in the Co-operative Department of the State Government, so long as the information is one in relation to a Co-operative Society which is obliged to be maintained by the Co-operative Department officials concerned.

Such an information pertaining to a co-operative society which is obliged to be maintained by the officials of the Co-operative Department of the Government, like the 1st respondent, would be sought for by maintaining an application under the R.T.I. Act before the notified PIOs attached to the offices of the Co-operative Department, in terms of the provisions contained in the R.T.I. Act. There cannot be any dispute on these aspects.

 Reference in this connection would be made to the decisions of the Court in Thrissur District Co-operative Bank, Thrissur v. State Information Commission, Thiruvanathapuram & Anr.reported in AIR 2017 Ker.120, Puthiyatheru Urban Co-operative Society Ltd. v. Joint Registrar of Co-operative Societies (General), Kannur & Ors.reported in  2017 (2) KLT 656).

The petitioner would submit that going by the wordings through Rule 33(4), there is no mandate therein that the co-operative society concerned has to necessarily forward a copy of the same to the Assistant Registrar or Joint Registrar of the Co-operative Societies concerned and that all what is required to be done as per the Rule is that the said list should be made available in the office of the society during office hours for inspection by any member of the society free of cost. The Court was not prepared to countenance the said hyper-technical argument raised on behalf of the petitioner society. When the Rule mandates that every Co-operative Society will have to prepare and publish list of its members as on the last day of each co-operative year concerned, such vital information should also necessarily be conveyed by that society to the supervisory officer concerned of the Co-operative Department.

If a society does not care to furnish such a vital list to the Co-operative Department of the Government, then those officials in their capacities as the notified Registrar can direct the society to forthwith furnish such a list on its preparation and publication, by exercising their supervisory powers under S.66 of the Act. In such a scenario, the society will be obliged to furnish the same to the Department. Therefore, to contend that the Assistant Registrar has no power to call for the above said list of members is patently untenable and unsustainable.

However, the direction to the petitioner was to make available a copy of the list of the members as on 25.5.2018. What is obligated by the mandatory provisions contained in Rule 33(4) is for the Co-operative Society concerned to prepare and publishlist of its members as on 31.3.2018 as far as the co-operative year, 2017-18 was concerned. The next list for 2018-19 is to be prepared and published only after 31.3.2019. Therefore, the direction to the limited extent, it required the furnishing of the list of members as on 25.5.2018, was not fully justified in law. The petitioner society shall without fail ensure that an authenticated copy of the list of members as on 31.3.2018 furnished to the 1st respondent- Assistant Registrar. The Writ Petition was disposed by confirming the order of the first respondent, with the above modification.

Impact of the judgment

What the society is legally entitled to maintain, such records can be accessed by the citizen through the PIO of the Co-operative Department.