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.

Democracy – Dreams and Fulfilment

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

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

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

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

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

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

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

Expanding Horizones of Constitutional Rights

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

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

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

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

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

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

1. Active or Positive

2. Passive or negative

3. Voluntary

4. Involuntary

5. Non voluntary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

The National Court of Appeal: A Suggestion Worth Implementing

(By Faisal C.K., Section Officer, Law Wing of Kerala House, Travancore Palace, New Delhi)

Socrates, the Greek philosopher, famously counted the four essential qualities of a judge by saying that ‘’four things belong to the judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially’’. The question of whether all these qualities are present in our judges is very relevant today. If our answer is negative, we cannot blame our judges alone. The baffling quantum of pending cases points to the unbearable work-load of our judicial officers. According to the Indian Judiciary Annual Report 2015-16,published by the Supreme Court of India, 2.81 Crore cases are pending with the district courts across India. The total number cases pending before the Supreme Court is 54,013 as on 04.05.2018. While such a huge pendency of litigation is suffocating our courts, the judges cannot hear courteously or consider soberly. Resultantly the impartial and sagacious adjudication turns impossible.

Take the case of the Supreme Court. Within a short span of three months between January 1, 2017 and March 31, 2017, the Supreme Court disposed 21,892 cases. It should be compared with the fact that the Supreme Court of the U.S.(SCOTUS) and the House of Lords in England, the apex judicial bodies in their respective realms, respectively dispose less than one-hundred and two-hundred cases per year. In 1950, the year the Supreme Court came into being, the number of cases disposed by the Supreme Court was only 525.

It shot up to 75,979 in 2016. The lion’s share of this number is appeals, among them; sizeable chunk is Special Leave Petitions under Article 136 of the Constitution.

The Supreme Court of India, by passage of time, has attained a vast and undefined jurisdiction and powers. The Supreme Court has metamorphosed into an all-powerful-Leviathan or a Black hole exhibiting such strong gravitational effects that nothing is left out of its jurisdiction. As per the Handbook of the Supreme Court, the Court entertains around 45 categories of cases. By framing the Basic Structure Doctrine and the Collegium System, the Supreme Court assumed unprecedented powers in Constitutional amendment and judicial appointment too. But it is doubtful whether the Supreme Court has succeeded in the delivering of justice in a time-bound manner while the powers piled up at Tilak Marg. In 1987,
Justice E.S.Venkataramiah observed in a judgment that it would take fifteen years to clear out the cases pending before the Supreme Court then, provided no fresh cases are filed during this period! Justice K.K. Mathew observed in 1982 that the Special Leave Petitions under Article 136 of the Constitution should be limited to the cases involving the interpretation of law bearing public importance.

Mr. K.K.Venugopal, now the Attorney General of India, in his R.K.Jain Memorial Lecture titled‘Towards a Holistic Restructuring of the Supreme Court of India’dated 30 January 2010,
opined that the founding fathers of the Constitution envisaged the Jurisdiction of the Supreme Court as limited to: i) All matters involving substantial questions of law relating to the interpretation of the Constitution of India or of national or public importance; ii) Validity of laws, Central and State; iii) After Kesavananda Bharati(1973) 4 SCC 217,the judicial review of Constitutional Amendments; iv) Resolving conflicts between States and the Centre as well as the original jurisdiction to dispose of suits in this regard; v) To settle differences of opinion of important issues of law between High Courts; vi) Additionally, Presidential References and Article 131 of the Constitution. He is of the view that the Appellate Jurisdiction and Writ Jurisdiction should be detached from the Supreme Court. Mr.Venugopal opined that National Courts of Appeal should be set up, by appropriate constitutional amendments, to finally dispose the appeals from the High Courts under Articles 132,133 and 134, the Special Leave Petitions under Article 136 and Statutory Appeals. He suggested that the National Courts of Appeal should be located in the four regional zones of the country and they should be placed in between the Supreme Court and the High Courts in the hierarchy of the courts.

In this background that Mr. Venugopal suggested that instead of adding more judges to the Supreme Court of India, one should create four Regional or Zonal Courts of Appeal which would absorb the 140 categories of cases which are today pending in the Supreme Court of India being matrimonial, rent control, labour, service, land acquisition and other such like cases. These cases would belong to the exclusive jurisdiction of the Courts of Appeal which would be established in the four regions of the country. The Chartered High Courts themselves could well be the seats of these Courts of Appeals which would be manned by judges of the same calibre as the judges who would otherwise be elevated from the High Courts to the Supreme Court. The age of retirement of the Judges of the Court of Appeal would be 65, as logically, they would have to have a higher age of retirement. Correspondingly, the age of retirement of the Supreme Court Judges may have to be enhanced to 68 or even 70. The Supreme Court would then be left with only those cases which, as pointed out earlier, would fall within the true jurisdiction of the Apex Court of the country. The Court of Appeal would finally decide all cases arising from the High Courts relating to the 140 sub-categories mentioned earlier, without any further appeal. The Constitution would be amended by adding Article 136A, whereby the Zonal Court of Appeal would exercise the powers which were hitherto being exercised by the Supreme Court under Article 136 of the Constitution. On the other hand, the Supreme Court would thereafter entertain appeals from the High Courts by restricting the scope of Article 136 to cases involving constitutional issues, validity of Central and State laws, difference of opinion between High Courts or between Courts of Appeal and Presidential References and suits between States or States and the Centre. If, however, any question arises before a Court of Appeal, which would fall within the curtailed jurisdiction of the Supreme Court, it would refer the same to the Supreme Court of India for decision.

He pointed out that the idea of having Courts of Appeal in India, for relieving the Supreme Court of India of its huge burden, is not something new. In the 1982 article, Justice K.K.Mathew had contemplated Courts of Appeal to relieve the huge backlog of cases pending in the Supreme Court of India. Later, Justice Bhagwati in the Bihar Legal Support Authority v. Chief Justice of India and Anr.((1986) 4 SCC 767) had this to say – “The Supreme Court of India was never intended to be a regular court of appeal against orders made by the High Court or the sessions court of the magistrates. It was created for the purpose of laying down the law for the entire country and the extraordinary jurisdiction of granting special leave was conferred upon it under Article 136 of the Constitution so that it could interfere whenever it found that the law was not correctly enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law on the subject.”

 The Constitution Bench has itself felt the need of setting up of the National Court of Appeal, and has observed in the very same judgment: “We think that it would be desirable to set up a National Court of Appeal which should be in a position to entertain appeals by Special leave from the decisions of the high courts and tribunals in the country in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it should concern itself only with entertaining cases involving questions of constitutional law and public law.”

The Law Commission of India in its 229th Report had recommended for the setting up of four Cour de Cassation, in each of the regions -north, south, east and west to have these Courts of Appeal as final courts in regard to the to the matters entrusted to them.

A Study by Mr.Nick Robinson of the Yale Law School has exposed the regional disparity in the Supreme Court dockets. The States geographically adjacent to the seat of the Supreme Court, like Punjab, Haryana and Uttarakhand have a share of 6.2% each in the total cases pending before the Supreme Court. Meanwhile the far away but vast states like Tamil Nadu and Karnataka have only 1.1% and 2.4% of the cases respectively. It demonstrates the difficulty of the people from South India and North East to access the Supreme Court. Justice turns costly and unaffordable for them. Setting up of the National Courts of Appeal at four regional zones, preferably in New Delhi, Mumbai, Chennai and Kolkata would ameliorate this difficulty. Mr.Venugopal suggested that each National Court of Appeal should have 15 judges and the number of the judges in the bench that hear appeals at the proposed National Court of Appeal should be three unlike the present appeal benches at the Supreme Court which have only two judges. If the proposal of the National Courts of Appeals is accepted and implemented the total cases mooted in the Supreme Court could be reduced into 2000 per year. Then the Supreme Court can gloriously function as a Constitutional court as the framers of the Constitution envisaged, rather than as a jack of all trades.

In 2016 a PIL was filed before the Hon’ble Supreme Court by Mr.V.Vasantha Kumar praying for the setting up of the National Courts of Appeals at New Delhi, Kolkata, Mumbai and Chennai. The then Chief Justice referred the matter to a Constitution Bench. The amicus curiae in the case, Mr.K.K.Venugopal and Mr.T.R.Andhyarujina vehemently supported the idea of the National Court of Appeal. The Economic Times reported in August 2017 that a high level meeting at the Prime Minister’s Office discussed the proposal. Now Mr.K.K.Venugopal, the major voice for the National Court of Appeal is the Attorney General of India. In this context the idea may get more currency.

Justice V.R. Krishna Iyer has in his inimitable style explained the importance of access to justice in the following words: “Access to justice is basic to human rights and directive principles of State Policy become ropes of sand, teasing illusion and promise of unreality, unless there is effective means for the common people to reach the Court, seek remedy and enjoy the fruits of law and justice.”

In Anita Kushwaha v. Pushap Sudan (2016 (3) KLT 799 (SC) = 2016) 8 SCC 509), the Supreme Court observed: ‘’If “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where law is applied and justice administered. The Citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well…

 ‘’Four main facets that, in our opinion, constitute the essence of access to justice are : i) The State must provide an effective adjudicatory mechanism; ii) The mechanism so provided must be reasonably accessible in terms of distance; iii) The process of adjudication must be speedy; and iv) The litigant’s access to the adjudicatory process must be affordable.’’ In the light of the above facts, the setting up of the National Courts of Appeal is a sacrosanct constitutional responsibility for ensuring accessible, speedy and affordable justice.