Co-Operative Housing Society is Not an Industry : Bombay High Court

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

The Co-operative Housing Society is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and hence an employee of the society cannot maintain an industrial dispute against such society is the ruling of the High Court of Bombay in M/s. Arihant Siddhi Co-operative Housing Society Ltd. v. Pushpa Vishnu More & Ors., W.P. No.787 of 2007 dated 22.6.2018.

On a reference made, the Labour Court, Mumbai allowed the industrial dispute raised by the first respondent and ordered reinstatement with full back wages and continuity of service. The petitioner society resisted the reference on the ground that the petitioner was a housing society and that the services rendered by first respondent were personal services and that the society not being an industry and the first respondent was not its workman within the meaning of the term under the Industrial Disputes Act and hence the reference was not maintainable. By its impugned award, the Labour Court held that though the society was a co-operative housing society, it earned profits by way of additional income from its members and accordingly, fell within the definition of industry. The finding of the Labour Court was assailed by the society before the High Court.

The Court, in M/s. ShantivanII Co-operative Housing Society v. Smt. Manjula Govind Mahida, W.P. No.360 of 2007 dated 21 June 2018has considered whether a co-operative housing society can be termed as an industry within the meaning of Section 2(j) of the Industrial Disputes Act merely because it carries on some commercial activity, not as its predominant activity, but as an adjunct to its main activity. It has held that such society is not an industry. In a case like this, where there is a complex of activities, some of which may qualify the undertaking as an industry and some would not, what one has to consider is the predominant nature of services or activities. If the predominant nature is to render services to its own   members   and   the other activities are merely an adjunct, by the true  test laid down by the Supreme Court in the case of Bangalore Water Supply and Sewerage Board v.
A. Rajappa (AIR 1978 SC 548: 1978 (3) SCR 207: (1978) 2 SCC 213)the undertaking is not an industry.

In Bangalore Water Supplycase the Supreme Court held that when there are multiple activities carried on by an establishment, what is to be considered is the dominant function. In the present case, merely because the society charged some extra charges from a few of its members for display of neon signs, the society cannot be treated as an industry carrying on business of hiring out of neon signs or allowing display of advertisements. In the premises, the impugned award of the Labour Court suffered from a serious error of jurisdiction. The reference before the Labour Court was held to be not maintainable and the order of reinstatement with continuity of service and full back wages passed by the Labour Court was quashed and set aside. The Writ Petition was thus allowed.

Humble Homage to The Great “SVS”

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

His demise has created a vacuum.

There are many who have enriched themselves with their association with him, including me. I was introduced to “SVS” by another doyen of Irinjalakuda Bar during my formative years at the Bar. At that point of time, I did not have the faintest dream that I will interact with SVS in close quarters in coming years. After I started relocating to High Court, I was fortunate to be associated with him and assimilate, to some extent, his way of approach and analysis.

His candidness in examining legal problems was infectious.  The first quality that made him stand apart from many other luminaries at the bar was his patience and vigor to examine situations posed by clients, judges and lawyers. His process of thinking was like the proverbial arrow with definiteness in aim and direction.  His precise analysis and presentation of pros and cons of any legal issue with an uncanny passion to arrive at a convincing solution impressed everyone. His polite forthrightness towards members of the bar, judges and clients won him many a case. Advocacy came to him naturally. He was the perfect statesman for the profession.

He had high regard and concern for juniors.  I recall juniors crowding around him, he being always ready with an answer. At times, he used to throw questions to juniors and encouraged them to probe.

Despite his stature at the Bar, he never took anything for granted. His style of referring to books and case files is legendary. His phenomenal memory was at its best when faced with legal complications. He took pains to explain how and why a given ruling was rendered, adding his own expertise and thoroughness to explain how it could not adversely affect his case. Comparisons of personalities in real life will be out of place, that too, in the legal profession, where there are giants who vanished long ago and there are giants in the making.

Law reports bear ample testimony to the incisive approach and precision “SVS” possessed in fighting legal battles. It will not be out of place to mention his magnanimity in accepting adverse decisions despite his contrary views. He had no hesitation to concede anything he might have omitted to examine.

After “SVS” stopped coming to court, he always welcomed anyone who needed his advice and time. Whenever I met him at his residence, I found him in the company of books and files.  He used to caution: “An idle mind is the devil’s workshop”.

“SVS” came with a legacy. He has left behind a lineage which has proved worthy successors.

I respectfully refrain from lengthening these humble lines.  Many a vacuum is destined to remain void by the order of nature. Suffice to say, we miss SVS. 

“A Cratalogical Critic of Indian Judicial Process”

(By Yadukrishnan B., Advocate, Alappuzha)

Judicial Process is all about authoritatively finding the law applicable in a given fact situation and ordering the facts in the manner required by the law. Judicial process is a domain for play on State powers. It is incidentally and consequently made for solving the disputes. According to Merriam Webster “Judicial process is the series of steps involved in the course of administration of justice for the purpose of resolution of disputes”. Judicial process itself is a branch of executive aims to attain justice and provides adequate solution to the aggrieved party.

Rule of law is a part of Judicial Process. In the modern times there are basically two essential interpretations against the concept of rule of law. First one is of a traditional view, which says about the plenary adhering to the rules of the laws, while the second one is related with certain ideal rules based on justice and morality within its province. Modern States follow the second principle of rule of law because a law which is stable becomes oppressive after some time, due to its failure to satisfy the needs of the progressive society. With the development of cratology¹ or the science of political power, judicial process has come to be known as involving policy control, where judicial review of State action is a constitutional prescription. According to Chief Justice Marshall, judicial power means, it is the power to State authoritatively what the law was. This high interpretative power has struck to the courts in the west in countries professing a rule of law.²

CRITICAL ANALYSIS OF PRESENT SYSTEM OF JUDICIAL PROCESS

After Independence, India had adopted a normative system of constitution. The Constitution of India which is the basic law of the land aims to determine the structure and functions of the government as well as the basic rights of the citizens. The present Indian Judicial process is governed by the adversarial system adopted by the Britishers even though there is no mention in Indian Constitution.³ Following are the main attributes of present day judicial process.

Access to justice

The term access to justice is not easy to define. It is a political, legal, and rhetoric symbol of undeniable power and attractiveness for the subjects of the states craft. The term “Access to justice” has got an intrinsic nexus with the term justice, in the sense that it is its minimum prerequisite. The notion of the justice evokes the cognition of rule of law, the resolution of conflicts, institutions that make law and those who enforce it. The concept of access to justice has undergone an important transformation, earlier the right of access to judicial protection means the aggrieved individual’s formal right to mitigate or defend the claim. In today’s world, “Access to justice” means having recourse to an affordable, quick, satisfactory settlement of disputes from a credible forum. In the modern world there are mainly two types of access to justice. They are the formal access to justice and informal access to justice. The formal access to justice is basically the adjudication of disputes through courts which follows the rules of C.P.C. and criminal procedure. The informal access to justice includes the settlement of disputes through Arbitration, Negotiation, Conciliation, Nyaya Panchayat, Mediation and Lok Adalats. They act as the alternative dispute resolution mechanism which aims to settle or resolve the disputes between the parties speedly and in a cheap manner. The above stated institutions are not found by the rules of procedure institutions and evidence, but they have to follow the essential principles of natural justice. Informal and formal methods of access to justice are both against the parity of power described under Article 14 of the Indian Constitution. It is because in informal modes of access to justice one has to often compromise with his legal rights in interest of time, cost of money etc., which is very much against the guarantee prescribed under Article14 and duty imposed on State there in.

HURDLES IN ACCESS TO JUSTICE OR HINDRANCE IN ACCESS TO JUSTICE

The present mode of access to justice followed through the courts is based on adversarial system. After independence when the Constitution of India came into force, the approach towards access to justice was redesigned and modified. The preamble to the Constitution itself aims to secure social, economic and political justice. Article 14 of the Indian Constitution deals with equality before laws. It states that the State shall not deny to any person equality before laws and equal protection of the laws within the territory of India. The words “equal protection of laws” indicate two things: firstly that every person is entitled to protection of all the laws of the land, and secondly, every person within Indian Territory is equally entitled to that protection. In addition to this, Article 256 of the Indian Constitution provides for two important things. Firstly, it obliges the State Governments to implement the laws, which are the laws passed by the State and union legislatures. Secondly, on failure to do so, the Union Government is under an obligation to direct the State Government to implement the laws. Thus under the Constitution, a strict duty is cast on the State to ensure that there is compliance with every law. At present, Constitution discarded the adversarial mode of adjudication and impliedly adapted the inquisitorial mode. In an inquisitorial system⁴, the court or a part of the court is actively involved in determining the factor of the case, as opposed to an adversarial system, where the role of the court is solely that of constitutional mandate, in this, regard has been consistently overlooked and we end up, still upholding the adversarial mode of adjudication, inspite of the fact that it is inherently prejudicial to the parity principle and thus contrary to Article 14, and there by unconstitutional. In the adversarial mode, there exists many hurdles in access to justice, some of which are as follows:-

1) Cost of Litigation and Court Fees:

The cost of litigation is very high in the present day situation which many a time compels the parties to give up their just claims. If it is high it will affect the rights of the parties.It includes court fees, fees charged on summons and the advocate’s fee. Before the advent of the Britisher’s no fees was charged on the Advocate’s fees, fees paid on summons and court fees. The Code of Civil Procedure itself provides for the payment of money for filing a plaint, written statement, and also for preparing the copy for filing a plaint,preparing the copy of judgment and decree. Another basic hindrance is the fees charged on the advocates. This is something which is against the principle of equality enshrined under Article 14 because access to justice is purely denied on the basis of financial constraints and there is no parity of power between the parties and is a denial of right to equality.⁵

2) Delay:

Justice delayed is justice denied; delay is one of the indelible characteristics of the adversarial mode of litigation. On an average, a civil case takes about 20 years to settle. The effect of delay is more penetrating and it affects a person’s financial capacity. This also adversely affects the timecount spectrum and interest spectrum when the litigant suffers through years.

3) Awareness:

It is also a hurdle in access to justice as people are not aware about their legal rights and remedies.

4) Advocacy:

Advocates are the indispensable part of the adversarial system. They act as a referee who decides the case on account of the performance of both parties. Thus, the competence of a lawyer to a considerable extent is the determinant factor with regard to the final verdict. Every advocate should act in a truthful manner while he is dealing with the client. The client approaches the advocate mainly because he is having the faith in him. So the advocate should work hard in getting justice to the client. But in the present day context, majority of the advocates are money minded and they act purely for the satisfaction of certain objectives and not for securing the real interest of the clients. In such situations clients do not get the real justice from the society. The lawyer dominated system is very ineffective, slow and unpredictable in nature. In such a situation advocacy will become a great hindrance to access to justice under adversarial system. Hence, it will be a denial of parity of power enshrined under Article 14.

5) Law of limitation:-

The Limitation Act, 1963 provides for a specific period for a person to effectuate his rights. The law of limitation bars remedy after a specified period, but the right subsists without a remedy. On the other hand any suit barred on the account of the elapse of limitation period, can only be admitted if the Judge condones the delay. The guarantee under Article 14 regarding equal protection of laws would be meaningless. Thus the said Act mitigates against Article 14 of the Constitution. On the other hand, it also states that the violation of fixing a limitation on rights by itself is a violation of the principles of natural justice. Thus in such a situation it will be against the ethical and time count spectrum articulated by Prof.J.Stone. If any aggrieved person failed to file suit within limitation time, then it is not the duty of the court to take judicial notice of this as clearly provided under Section 57(1) of Indian Evidence Act.

6) Geographical Location:

The courts should be easily accessible to the litigant. Sometimes, because of the uneven geographical distribution, the courts are not easily accessible, which is at times acts as a deterrent for persons seeking justice, especially so in the case of the disadvantaged people. Thus, this clearly gives a conclusion that the prevalent system of access to justice is inefficient, complex, costly and punitive and an unpredictable method of dispute resolution. The promise of a de jureequality is denied by this system, because it vitiates the principle of parity and is therefore irreconcilable with the constitutional mandate.

7) Rules of Court:

Rules of court or the rules made by the legal institutions constitute one of the unconven-tional hinderances to access to justice.

CRATOLOGICAL ANALYSIS OF THE PRESENT ADVERSARY LEGAL SYSTEM ON GROUNDS OF THE POWER SPECTRUM

Power is the ability of the person to affect another by its exercise. Society as a whole is a system of power relations political, social, economic, religious, moral, cultural, and many other power is a socio psychological relationship that exists between power holders (those who exercise the power) and power addressees (the person to whom the power is being exercised). Cratology is nothing but the “study of science of political power”. Power has a close relationship with law. The existence of law is mainly because of the existence of power. In order to understand the role of law in creating, supporting, changing or verifying the proper exercise of power, the following are the six bands of the power spectrum. They as follows:

1) Coercion Spectrum

The coercion spectrum gives importance to the degree of coercion involved in the power relation. This band deals with the degree of coercion and sanctions behind a policy decision and law. This count highlights the role of compulsions in the implementation or execution of any decision or law.

2) Ethical component spectrum

This count deals with ethical and moral aspects of law and it emphasizes that every law decision or policy must satisfy minimum standards of ethics and morality of the society which differ from society to society. A uniform standard of ethics cannot be laid down for it differs from society to society.

3) Interest affected spectrum

This count draws attention to the problems faced by subject as a consequence of improper exercise of power, that is when their interests are affected by and subordinated to the interests of power wielders. Interest affected band protects the interest of general masses by prescribing instances of improper exercise of power.

4) Head count spectrum

This count signifies the number of persons affected by any decision or law. The underlying idea of this band is to protect the interests of maximum number of persons.

5) Time count spectrum

This band has two facets. One highlights the fact that continuance and antiquity makes any law or a practice strange. The second facet of time count is delay. Delay acts as an impediment to access and realization of justice.⁶

6) Influence spectrum

This band differs from the coercion band as influence is a positive concept and there is no necessity of sanction but the former is a negative concept and sanction and fear are the operative force behind law or decision. Influence is self reflexive and has its independent existence, whereas coercion is a nonentity without fear and sanction. This count deals with the factors which influence any decision or law and are influenced by it. Thus, in this situation it can be said that the present day adversary system doesn’t answer the requirements of justice enshrined under the preamble to Indian Constitution.

CONSTITUTIONAL ASPECTS OF JUDICIAL PROCESS

Under the Indian Constitution judicial process plays a significant role in the case of parity of power. Parity of power is the only means in achieving a higher goal of “justice”. It means that when a person is having a right or interest which is recognized by law on the principle of parity of power unless he is aided by the State machinery he cannot protect his interest and thus it is injustice to him. Hence, these two cannot be separated. The Constitution envisages that parity of power principle can only bring justice.

It can well be understood by analyzing the provision of the Constitution.

Article 14 of the Constitution cast a duty on State:

1)Not to deny equality before the law.

2)To give equal protection of law.

Further, for the compliance of Article 14; Article 256 provides:-

1)It obliges the State Government to implement the law, which are the laws passed by the State Government and the Union Government.

2)On its failure to this duty Union Government is under an obligation to direct the State Government to implement the law.

Thus, Article 256 provides the whole mechanism to ensure the implementation of every law by the executive power. To ensure that the State administration shall provide justice by parity, Constitution has provided Article 256, but even if it fails, then President as the executive head and the preserver, protector and defender of the Constitution under Article 365 can fulfill its obligation by invoking Article 356, as he is duty bound to do this under Articles 355. This executive mode of applying the parity of power for achieving higher goal of justice. However, sometimes the executive fails to deliver justice according to the principle of power. This is where judiciary comes into play as judiciary is an outcome of the dissatisfaction of the working of the administration.

The main function of the judiciary is policy control by approximating the “is” to the “ought” through judicial process. Judicial process is under the obligation to deliver the substantive promises of law through the principle of parity of power. Our Constitution also states this by the mandate of Article 14 which encompasses that it is the duty of the State to give equal protection of law and when judiciary exercises administrative power it is a State within the meaning of Article 12 of the Constitution. However, the judiciary and the judicial process have completely failed to establish the judicial process.

SIGNIFICANCE OF THE SPECTRAL BANDS OF POWER FOR JUDICIAL PROCESS

The spectral bands of power are necessary because they give a wholesome picture of the law. Each band, when taken individually deals with one particular aspect of the law, and when these bands are taken collectively, then they deal with the law completely. If these are utilized by the judiciary to analyze the gamut of laws that are existing in the country, many laws which are existing now but which are either unconstitutional or have the tendency to bring harm to the society will automatically get filtered.

The Constitution of the country is the ground norm of the country. It is the fundamental norm of superior obligations. Thus it is the basis of every law and it should be conformed. The six spectral bands of power enunciated by Julius Stone is an additional tool for determining the validity of any law. In India the validity of any law is determined according to its conformity to the Constitution by virtue of Article 13 of the same. The power spectrum is always been used to verify its validity.

 Justice Marshall in the case of Marbury v. Madison⁷ has stated that “it is the province and duty of the judicial department, to say what the law is”. This would imply that judicial process is to state the law. To fulfill this requirement the judiciary has to do a primary role to go into the validity of the laws. The power spectrums are an effective way to analyze the law and to understand if the law is good or bad. These bands have been applicable to the various stages of judicial process.

Analysis of judicial process has been set forth by Roscoe Pound. It states about the functions which are involved in the decision of a case according to law as namely,

1) Finding the facts.

2) Finding the law.

3) Interpreting the precept or precepts to be applied.

4) Applying the precept or precepts so found and interpreted to the case in hand.

It is to be noted that before reaching the aspect of judicial process the basis of access to judiciary is to address the grievance. This is the first step to the judicial process.

1) In India judiciary is not very accessible to the common man. The existence of the court fee, the very strict procedural requirement for the filing of any petition makes it difficult for a person to approach the judiciary. These two provisions if taken independently are against the various spectral bands of power as enunciated by Julius Stone. The Court Fee Act was passed during the British regime for the collection of revenue for the British for the governance of the country. The existence of the court fee was a necessity at that time due to various reasons. But in the present scenario when the Constitution guarantees equal protection of the laws it becomes an unnecessary hindrance. Thus in a way it can be violative of the time count. It is also against the ethical count as in the Act the person who is injured and has a grievance is made to pay the court fee and not the wrong doer, which would come to light after a decision is reached by the court. The influence count is also not a valid exercise as when it was passed it was motivated only by the profit and revenue that can be made. The head count for those people who are approaching the courts and the interest affected would be all the people in the country.

The second aspect of strict procedural requirement against the principle of equity is that procedure cannot defeat substance. Both of these aspects in judicial process are against the principle of parity of power.

2) The second step to judicial process is the entire hearing of a case that is ascertaining the facts relevant and the laws applicable to it. The mechanisms present in India with regard to burden of proof are again against parity of power and are violations of the spectral bands of power. As a result it would automatically be violative of the ethical band which has the prerequisite of equality and equal treatment. Thus the judicial process at this stage is also not conforming to the power arrangement.

3) The final stage of judicial process is the delivery of the conclusion of the Judge i.e., the judgment. This is of prime importance because it is here that the reason for which people move the courts come to be fulfilled. Thus judicial process at this point of time is an important aspect and needs to be examined with due care and caution.

In Mohini Jain v. State of Karnataka⁸, popularly known as ‘’capitation fee case’’ is a typical error of the Supreme Court in policy control function. It took five years for admitting that case. The court totally disregarded the time count in the power spectrum which should answer to Article 14 of the Constitution.

In K.P.S.Gill v. State⁹, the court totally disregarded the compulsions of Article 14. It took a long thirteen years to reach the conviction, which had totally defeated the time count spectrum. The fact is that the time of thirteen years itself defeated all the six counts of spectrum.

THE ADMINISTRATIVE MODE OF ACCESS TO JUSTICE

Access to justice precisely means the implementation of the laws of the land. In India the primacy of implementing the laws is on the executive branch. The whole administrative mechanism of implementing laws is given under Article 256 of the Indian Constitution. This Article evaluates the working of administrative mechanism. Article 256 has remained a dead letter. This has been mainly because of the assumption that the Indian Constitution is a parliamentary form of government. In Ram Jawaya Kapoor v. State of Punjab¹⁰ and Samsher v. State of Punjab¹¹ the Supreme Court while interpreting Article 74 and 75 of the Indian Constitution said that Indian Constitution is based on parliamentary form of government. It further stated that President was bound by the advice of council of ministers. The executive power of the President has been usurped by the council of ministers headed by the Prime Minister. It is through this the power structure arranged in the Constitution has been distorted. As per Article 54, the executive power of the State is vested on the President who has taken oath to preserve, protect and defend the Constitution. The interpretation of Article 74 has caused the major derailment of the power set up. The Supreme Court has denied the President to act on his own individual discretion while exercising his powers, on the grounds that Article 74 directs him to act according to the aid and advice of the Council of Ministers headed by the Prime Minister .As per Article 74 aid and advice is limited only to the exercise of functions by the President. “Power: means the ability to affect others and “function” means the things to be done. The aid and advice given by the council can’t go to the extent to decide the way the President is going to exercise his powers. The Constitution under Article 75(5) provides that if a minister is not a member of either house of the Parliament he shall cease to hold his office after the expiration of six months. This provision does not mean that the Ministers who become members of the Parliament are at par with the legislators in the Parliament. They are not to enjoy any legislative powers. In this way the political parties have also usurped the legislative powers. The whole power structure has been destroyed and taken over by the political parties. The power set up under the Constitution has been destroyed.

THE ADJUDICATORY MODE OF ACCESS TO JUSTICE

The judiciary is an outcome of the dissatisfaction of the working of the administrative authority. Judiciary aims at resolving disputes for the implemen-tation of laws. Thus its function is basically administrative in nature. Law is always based on policy. The judiciary implements or reverses the action of the executive or interprets the law and decides whether it has been in conformity with the policy or not. Thus judiciary acts as a policy controller.

Article 141 of the Indian Constitution lays down that the law declared by the Supreme Court shall be binding within the territory of India. Thus it means that it is only the Supreme Court which discharges pure judicial function under Article 141. All other subordinate courts including the High Courts perform only pure administrative functions.

The mandate, of Article 14 also encompasses the judiciary. The dispute resolution function of the Indian Courts being purely executive, necessarily denies adversarial mode of justice dispensation. The Courts sit to judge the facts which are not in conformity with the requirements of the laws.

HOW TO REFORM THE ACCESS JUSTICE IN INDIA

The present administration of justice system is not favorable to the downtrodden and vulnerable therefore new movement for reforms in the existing system of access to justice has started and following are some of the approaches adopted in India:-

1) Alternative Dispute Resolution Mechanism:-It was introduced to follow simpler procedure and to have more informal decision making process. It is supposed to be cheap, speedy and people friendly process. Following are the types of alternative dispute mechanism operating in India.

a) Lok Adalat:-The term Lok Adalat means “People’s Court”. The Legal Services Authority Act, 1987 provides for the setting up of Lok Adalat. It aims for the quick and cheap settlement of dispute between the parties. It is a summary procedure involving the quicker settlement of the cases that are pending in various courts. It is a para judicial institution which aims to provide the real justice to the parties.

b) Arbitration and Conciliation:-It is provided under the Arbitration and Conciliation Act of 1996. The fact remains that these alternative mechanism is accessible to those who can afford them. They are no way cheap mode of dispute resolution. The Arbitral Tribunal which consists of at least three persons is paid by the parties and the payment rates are quite high. This gives scope to influence spectrum. Moreover it is basically an adversarial system. Though the matter is purely to be decided on the substantive laws, but much of it is left on the argument of the lawyers of both the sides. The Arbitral Tribunal hardly plays any pro active role. In case of consolation the decision is not binding.

c) Trade Unions and other similar association:Trade unions are popularly known for pursuing common policies and objectives and resort to collective bargaining for enforcement of their rights. In reality they are concentration of power and abuse of powers by enforcing many a time group behaviour on individuals or in other words using the power of tyranny of numbers.

d) Judicial Accountability:-The another important remedy for access to justice is judicial accountability. The foremost duty of the Judges is to give the justice impartially and precisely. They are not supposed to commit any mistake in delivery of justice. If any failure in delivery of justice is occurred on their part, they should be punished strictly. This behaviour of the Judges is detrimental to the Natural Justice. There should be some remedy for this act or omission of the Judges. In order to make the Judges to act within the limits of their powers, judicial accountability plays a dominant role.

e) Legal aid:- One of the most important methods to improve the access to justice is to provide legal aid. Section 304 of the Code of Criminal Procedure enables the sessions court to assign a pleader for the defense of the accused at the expense of the State, provided he is unrepresented and the court is satisfied that he has no sufficient means to engage a pleader . Order XXXIII (suit) and XLIV (appeal) of the Civil Procedure Code provides for legal aid to indigent person by exempting him from payment of court fees, provided he is able to show to the court that he doesn’t have sufficient means and the court is satisfied after making inquiry into his means.

f) Public Interest Litigation:- Public Interest Litigation is one of the important modes to improve the access to justice in India. The concept of locus standihas been removed by the formation of public interest litigation.

THE NEW CONCEPT OF ACCESS TO JUSTICE

Indian Constitution is a transpersonalized power system. It is supposed to be in conformity with the general convictions. The same should reflect in the use and exercise of powers conferred under it. To secure justice to all, the Indian Constitution provides the executive mechanism under Article 256. It creates certain roles and allocates facilities under Article 14. The supervisory mechanism has not been working in India. The extra legal power play of the Council of Ministers headed by the Prime Minister is the influence spectrum and is backed by the head count spectrum which has throttled the working of the mechanism. The interpretation that we are a Parliamentary form of Government has made the head of the executive mere nominal head. The judicial process has to take note of it. The President, Governor and all other subordinate officers can be punished under Section 166
of the Indian Penal Code¹². This would make them personally liable. The present dispute resolution mechanism is a manifestation of private contest of power between two unequal sides. Inquisitorial method alone guarantees parity of arms and disposal of matters on pure legal basis. Individuals cannot overcome disability created due to unequal power balances created due to personal qualification, legal knowledge, and finance and so on. These factors of power play can only be eliminated through inquisitorial method. Section 166, of the Indian Penal Code includes personal liability of the public servants whenever they act in derogation of their duty. Non performance of duty means disobeying direction of the laws. Section 197 of the Criminal Procedure Code which stands as a bar to Section 166 of I.P.C. as it requires prior sanction of the Government before prosecuting any government servant should be repealed as it is unconstitutional. It violates the directive under Article 14 of the Indian Constitution. Justice Marshall defining judicial power said that judicial powers extend to stating authoritatively what the law is. The definition emphasizes on the declaratory character of judicial power. Whenever any law or executive action is challenged in the court of law, the court should pass stay orders against the operation of the law or further executive action.

CONCLUSION

The present adversary judicial system is against the spirit of the Constitution and is open violation of its normative character. All the three organs of the Government that is legislature, executive and judiciary fail to fulfill their constitutional obligation to render justice as per the provisions of the Constitution.

Judiciary as a state under Article 12 is bound to do complete and restitutive justice under Article 14 read with Article 142, but in several situations it acted as a settlement forum. It is also to be noted that Section 57(1) of the Indian Evidence Act, 1872 requires that the courts should take judicial notice on the existing law which is having force and the Judge deliberately fails to take notice under this section proves to their incapacity and misconduct. In such cases he should be punished under Section166 of I.P.C.

With regard to the power arrangement in Indian Constitution the basic duty of the judiciary is to say what the law is that is policy controlling. Provisions of Article 142 and 226 of the Constitution, 482 of Cr.P.C. and 151 of C.P.C. give the inherent power to Supreme Court, High Court and civil court to render justice.

The main reason for injustice is non supervisions of the working of laws in the States, even though the Constitution has envisaged the method of supervision under Article 256 read with Article 365 and 356.

Thus, we see that present Indian judicial process is not working according to the Constitution and there is a need for revival of the ancient inquisitorial system which is also the mandate of Article 14. Inquisitorial method alone guarantees parity of arms and disposal of matters on pure legal basis. As the proverb goes,’’ Law is the might of the majesty, which must look after the luxurious need of the rich and equally the rustic need of the poor, failing which it will become unequal and sometimes tyrannical.’’

Foot Note:

1.   Cratalogy: It is the study of science of political power. Political power is discernible, observable, explainable and evaluable only by its external manifestations and realizations.

2.   www.lawyersclubindia.com/articles/Indian Judicial Process: A Critique

3.   Access to Justice Vol.1 – A world survey edited by Mauro Cappellatti and Bryant Garth.

4.   Access to Justice Vol.1: A World Survey edited by Mauro Cappellatti and Bryant Garth.

5.   189th Law Commission Report on Court Fees.

6.   Law and Power: Chapter 13 of Julius Stone Power in Social Relations; “The provide and Function of Law” Law and Logic, Justice and Social Control.

7.   Marbury v. Madison (5 U.S.137(1803)).

8.   (1992) 3 SCC 666.                                                                    

 9.  AIR 1996 SC 309, (1995) 6 SCC 194.

10.AIR 1955 SC 549.                                                                         

11. AIR 1974 SC 2192, 1975 SCR (1) 814

12.Section166 of I.P.C.: Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

If Rule 237 of Civil Rules of Practice Requires Amendments

(By Siby Mathew, Advocate, Changanacherry)

In this discussion I am trying to unveil the practical difficulties faced by a final decree holder in a partition suit.  The parties to a partition suit normally approach a civil court, only when they are unable to resolve amicably their dispute as to determinate title and possession.Presumably the right of partition sprouts from a joint title or a common stock.  By a final decree in a partition suit, joint ownership is terminated into definite pieces within determined boundaries.

In this context it is worthwhile to consider whether the passing of a final decree puts an end to the difficulties of the parties or it triggers their problems.  Simply it can be seen that, passing of a final decree puts the parties in the status of a title holder without a title deed.

Rule 237 of Civil Rules of Practice, Kerala, provides that “The decree in a partition suit shall be prepared on non-judicial stamp paper of the requisite value and shall be retained by the court and shall form part of the record and copies of the same shall be furnished to the parties as in the case of other decrees”.

On the reading of the said rule it can be seen that a party to a partition suit is entitled to get only a certified copy of the final decree.  It is provided to keep the original final decree engrossed on the non-judicial stamp paper with the court.  The parties who are making payment for the non-judicial stamp paper are deprived of their right to get the original of the same due to an unreasoned legislation. There is no logical basis for keeping the original decree engrossed on the non-judicial stamp paper, with the registry of the court.

The last portion of the Rule 237 reads “………..copies of the same shall be furnished to the parties as in the case of other decrees”.

Can a final decree in a partition suit be treated in parity with the other decrees?

A final decree in a partition suit becomes the title deed of the property of the respective shareholders.  In such a situation what is the justification to deprive the right of the sharers to get their original title deed with them?  Why should the original final decree engrossed on non judicial stamp paper be kept with the court?  Is there any justification for disallowing the parties to a decree from enjoying their proprietary right with the original title deed?

In the above situation we have to discuss with the plight of a person who is given with a title deed (final decree) issued by a court of law in a suit for partition.  Embarrassing be the situation faced by a party holding a title deed in the form of a final decree for partition. It is only because of the reason that a decree holder in a suit for partition is issued only with a certified copy of the final decree.

Can a final decree holder enjoy his proprietary right by way of mortgaging his property using the certified copy of the final decree.  A holder of a final decree when approaches a bank or a financial institution for mortgaging his property by depositing the title deed may usually face problems.  All the financial institutions normally prefer to get deposited the original title deed and the originals of the prior deeds, for creating equitable mortgage of the property comprised therein.

Usually a person who does not have his original title deed is confronted with an impossibility of availing a loan from a financial institution on the security of such land.  The certified copies of the title deeds will not be accepted by the banks and financial institutions since there remains the possibility of creating multifarious mortgages.  A title holder who does not have his orignal title deed with him, will not normally be entertained by any financial institutions or banks for a mortgage by deposit of title deed.

A decree holder can avail as many certified copies of such a decree as much he can apply.  If the banks or financial institutions are prepared to accept the certified copies of the title deed or certified copies of a final decree for equitable mortgage, an unscrupulous borrower can avail any number of loans by mortgaging very same property.

A final decree being the title deed with respect to the parties to a partition suit, are such decree holders not bridled from enjoying their privilege or right to exercise their proprietary right by mortgaging their property. Is there any justification in restricting the enjoyment of the property of a shareholder in a partition suit by not issuing with the original of a final decree?  Usually a title deed is engrossed only one in original.  As per Rule 35 of the Kerala Registration Rules, duplicates can be registered if they are identical.  In partition deeds which are registered in duplicates, invariably it is written as “copy executed on the stamp paper bearing respective number is decided to be the title deed of different sharers.”  Thus all the sharers are entitled to have their own respective title deeds in original and they can use it as their own title deed for all purposes.

What is the embargo in providing for the execution of a final decree in duplicates or copies sufficient in number, to cater to the need of each sharer by stating or marking their own title deeds with distinctive numbers?  Why not in the case of a final decree, such a provision be incorporated in the Civil Rules of Practice, Kerala.

A sale certificate issued by the court is delivered to the purchaser from the court and such a purchaser can use the same as his title deed and can create equitable mortgage by depositing the same.  Then why should the original of a final decree be retained with the court.  Assuming that such a provision is framed for the reason that the original final decree engrossed on stamp paper  cannot be shared among parties to a suit for partition.  If only one original final decree can be generated, how is it possible to furnish all the sharers with original of the same. The anarchy in the above situation is that, practically the final decree holders are not considered to be the title holders in the absolute sense, since they do not have the original title deed with them.  Why the rule cannot be amended enabling the parties to get a duplicate of the final decree engrossed on the non-judicial stamp paper on payment of a prescribed amount. The court can determine the respective copies of the final decree as the original title deed of the respective sharer. In such a situation parties can use the final decree engrossed on the prescribed stamp issued from the court, as their own original title deed and they can enjoy their proprietary rights for all purposes including the mortgage by way of deposit of title deed.

Rule 5(21) of the rules framed by the High Court of Kerala, under Section 3 of the Destruction of Records Act,  mandates for the keeping of the original final decree with the court permanently.  But practically how many final decrees are available in the record room, having an age of more than 25 years to furnish certified copy of the same when applied. If the original final decree engrossed on the non-judicial stamp paper happen to be damaged by efflux of time, will it be possible to furnish a copy of the same.

In the above situation a rational approach is to be taken in this matter and  suitable amendment is to be effected to mitigate the practical difficulties faced by the final decree holders.

BORDER LAND OF DOUBT

(M. Marcus, Advocate, Kottayam)

The law relating to drunkenness touching criminal liability has undergone a metamorphosis of characteristic feature. Drunkenness was judged a dirty stain upon morality and in that light the drunk accused was liable to enhanced punishment in olden days for the crime he might have committed in the state of intoxication. With the progress of time and better understanding of human mind the law relating to criminal liability for acts done under intoxication have been separated from the meshes of the tangled web of morality, Now drunkenness is not deemed to aggravate the offence committed but its effect upon the cognitive faculty of the accused is the subject of interest to law.

Ss. 85 and 86 of the IPC. say that involuntary drunkenness is an excuse forthe crime committed if the accused at the time of the commission of the crime was not in a position to appreciate the criminality of his act by reason of intoxication but the proviso to the section sternly prohibits such criminal acts in case ofvoluntary drunkenness. The effect of the proviso is that a voluntary drunkard is deemed to be capable to keep fresh his criminal designs even when his brain is entirely under the grip of the bane of the draught. It appears from the reading of the proviso that the law fails to detect the snapping of the cords of Mens Rea when due to hard drinking Delirium Tremens sets in.

It is true both legal and Medical scholars have expressed their firm belief regarding the impact of Delirium Tremens in a drunken man, and they are quick to say that Delirium Tremens is a state of insanity produced by drunkenness and that it should relieve a drunken person from criminal responsibility for acts done even though the drinking was voluntary. It will be advantagous to refer to Halsbury's Laws of England Vol. IX dealing with "Courts, Criminal law and Procedure" wherein reference is made to E. W. Cox criminal law cases 6-463 pointing the case of a person who killed another in a drunken sleep but who was held not responsible. Professor Kenny in his "Outlines of Criminal Law" touching the "full exemptive effect" of intoxication asks "why there should be retained any idea that because a man has voluntarily indulged in intoxicating liquor he should be held fully liable for any consequences which may follow, without regard to the question of his mental ability when under the influence of the alcohol which he has consumed". This question of Prof. Kenny seems to offer a challenge to the proviso under consideration.

Coming to the medico-legal aspect of Delerium Tremens produced by drunkenness we find the problem in a still more baffling proportion. Scholars in Forensic Medicine in one brow of thought agree that Delerium Tremens due to drunkenness create fearsome delusions causing the person labouring under it to inflict injuries in the spirit of self defence. Dr. Lyon and Waddel in their "Medical Jurispurdence for India" on page 537 opine "Legally, DeIerium Tremens is unsoundness of mind, not intoxication". Dr. J. D. B. Gribble and Patrick Hehir in their "Outlines of Medical Jurispurdence for India", 3rd edition P. 372-373 dealing with drunkenness observe commenting on the relevant section in Indian Penal Code "It is however impossible that the law as laid down can be carried out to the letter". Collins Barry in his "Legal Medicine" Vol. II chapter XXXVcites the case R. v. Chaplain (Warrwick Assizes Nov 1878) leading to acquittal due to Delerium Tremens.

The unfortunate fact is that we have no data indicating as to when exactly Delerium Tremens starts and its paroxysams end John Glaister in his "Medical Jurisprudence and Toxicology "observes" while it is common to describe several definite stages of intoxication there is really no sharp demarcation of these stages and the rate of transition from one to another is inconstant". This is really a source of much doubt to the judge who is to put the penal law in motion against the voluntary drunkard with reference to the culprit's culpable mind. It is a lamentable stale that medical authority is equally doubtstricken on this point.

The drunken accused is not always arrested when he is under the clutches of Delirium Tremens so much so the question as to whether at the time when he did the alleged criminal acts, he was labouring under pangs of Delirium Tremens or not, we have no sure ground to judge. In this set up if we relentlessly utilize the proviso to Ss. 85 & 86 IPC. it may not be improbable that we miss the guilty deeds and punish mere convulsions.

Again the fate of the drunken accused after conviction is different from the insane accused who is acquitted on the ground of insanity. Sec. 471 Cr. PC. hands the latter to the safe custody awaiting order of the Government while the voluntary drunkard after conviction is packed to the criminal jail without sufficientinvestigations during trial touching Delirium Tremens which might have motivated his deeds, which is a border land of doubt. It is worth noting that Barbara Woottan a distinguished English jurist observes in "Crime and Criminal Law" (Hamlyn series) that "after drink insanity" is problem not satisfactorily decided as yet.

It is hoped that our law on drunkenness should be recast to enable the treatability of the drunken criminals with a view to restoring them to normal life than to incarcerate them so that we can claim the benefits of moden development in criminology.