"Alarming Arrears"

(P.V. Aiyappan, Advocate, Ernakulam)

1. The other day, the Union Law Minister, Shri Shiv Sankar revealed in the Lokh Sabha that more than 36,000 cases are awaiting their fate in the Supreme Court, but did not disclose the alarming Dockets in the High Courts. Fortunately, the Law Minister is an Ex-High Court Judge, yet he was not able to tackle this problem of accumulation of cases in various courts because he has -miserably failed to diagnose the disease and to prescribe the remedy. There is no use of bewailing over the sad state of affairs obtaining in the various High Courts in India and subordinate Courts. The decision reported in 1978 SCC. (Criminal) Page 23 onwards "Hassainera Khatoon v. Home Secretary, State of Bihar, proclaims the urgent necessity of salvaging human life, and liberty by adopting efficacious remedies. It would appear "that almost all the States are unconcerned with the administration of justice, for, according to them, law will take its own course and take care of itself. This marks the beginning of the end of "Rule and Law" zealously guarded by-our Constitution. The alarming and astonishing arrears in courts is not commendable to the judiciary as a whole, because so many suffer by waiting for the verdicts.

2. Informed sources suggest, increasing the number of judges in every High Court, to cope with the situation but the only difficulty the Government feels is the problem of accommodation. According to me it is an unwise suggestion. This malady cannot be cured by increasing the number of judges. The courts in India, want efficient judges with remarkable legal equipments and proven ability as of old but in the present method of recruitment, and conditions of service, efficiency, ability and equipments are casualties. At present, the qualification for the appointment of High Court Judges is laid down in Article 217 of the Constitution. In the said Article 10 years' Judicial service or ten years' practice as an advocate in any High Court alone is the qualification prescribed for appointment of High Court Judges. The total absence of an efficiency test is accountable for the deplorable state, obtaining in almost every High Court in India. Sri. Sivasankar, because he was also an High Court Judge, is incapable of suggesting an efficacious panacea for this incurable disease of deterioration in quality of the judges recruited under Article 217 of the Constitution I am aware of the, limitations of a citizen to entrench more upon the High Court and the judges presiding over it, for every High Court in India, is court of record under Article 215 of the Constitution.

3. Instead of the present method of recruitment, why not the Central Government try to secure the services of renowned jurists and legal luminaries to adorn the High Courts, of course, after introducing drastic changes in their conditions of service and emoluments, by setting up a "Recruitment Council" consisting of at least three or more Supreme Court Judges with unquestionable integrity to make recommendation to the President of India direct for appointment, without routing through the Chief Justice of the respective High Court and the Governor through Government and Law Ministry to Chief Justice of Supreme Court. Since politics play an important role in government level, the would be judges would have to sacrifice their dignity and self respect sometimes in waiting at the doors of politicians and other influential persons—a deplorable state of affairs—for those who have got an iota of self respect in them. Could we expect an impartial and independent judiciary if the present-set up for recruitment of judges is allowed to continue? Rule of Law is the Guardian Angel of Democracy and an Independent and fearless judiciary could only safeguard the "Rule of Law" and in a democratic set up, these are indispensables. The Law Minister, since he is an Ex-High Court Judge, will be more zealous in safeguarding the independence, and efficiency of the Indian Judiciary and with that idea in view, I expect him to suggest suitable amendments to the Constitution by deleting the present Articles governing the appointment of judges and by introducing suitable Articles enabling the establishment of a "Recruiting Council" from among the Supreme Court Judges, so that efficiency, ability and common sense in abundance alone should, be the criterion for appointment of Judges both in High Courts and Supreme Court. If extraneous considerations and nepotisom make their entry into the recruitment, the sacred precinct of court hall will give free entry to politics and favouritism, too poignant an enemy to the judicial independence and a sad day for the Indian judiciary.

THE KERALA LAWYERS’ FEDERATION

(A.V. Mathew, District Court Vakil, North Paravur)

It has been announced in the Press that a conference of the representa­tives of the Kerala Bar Association was recently held at Ernakulam under the President ship of Sri. K.P. Abraham and that ‘it was resolved thereat that an organization named “The Kerala Lawyers’ Federation” should be formed.

A committee with Sri K.T. Thomas as convener and eight other prominent members of the Bar as members, with power to co-opt, was also, elected totake the necessary steps in this connection. This praise-worthy attempt on the part of the prominent members of the Bar at Ernakulam has to be welcomed as an eye-opener. The committee elected for the purpose would do well to co-opt members on an all Kerala basis so that there might be adequate representation even at the start of the proceedings for inaugurating the proposed All Kerala Lawyers’ Federation.

It could be seen from the early pages of Legal Weeklies that an All Travancore Vakils’ conference was functioning for several years and that at the annual sessions thereof, which my humble self had the good fortune to attend; various resolutions congenial to the vital interests of the legal profession were unanimously passed. I have personally witnessed the fact that the late lamented Sris. E.J. John, K. Kochukrishna Marar, K.G. Sesha Iyer and K.A. Krishna Iyengar, doyens of the Bar and legal luminaries had taken a very keen interest in-shaping the destinies of the organization by their hearty co-operation, timely advice and accredited leadership, as could be seen from the Legal Literature of the erstwhile Travancore State.

It cannot he gainsaid that very many things, of considerable moment, affecting the legal profession have to be discussed at length and settled.

For the sake of illustration I shall very briefly state a few of them here below:-

(1) Matters which are conducive to the protection of the legitimate rights and privileges of the legal profession.

(2) Uniformity in matters affecting professional etiquette.

(3) Uniformity in practice and procedural methods to be adopted by Courts of Law in the mofussils of the State.

(4) Matters affecting the weal of the members of the Bar, especially with reference to recruitment to the Public Service.

(5) The ways and means of encouraging the junior section of the Bar.

(6) Various matters of a miscellaneous nature.

We are living at a time when all important progressive movements-social, educational, political and otherwise-are guided by central organizations and it is high time that the Kerala Lawyers, also, move with the spirit of the times.

It is, therefore, fervently hoped that the starting of an All Kerala Lawyers Federation at an early date would engage the serious attention of the Lawyers in Kerala.

SALES TAX ON ‘WORKS CONTRACT’ IN KERALA

(By P.G. Rajagopalan, Advocate, Tellicherry)

The recent decisions of the Supreme Court and the Kerala High Court j on the subject of Sales Tax on ‘Works Contract’ creates certain anomalous situation in the levy of Sales Tax in Kerala State.

The Supreme Court in Madras v. Gannon Dunkerly & Go. (AIR. 1958 S.C. 560) held that the Madras State is not entitled to legislate on the subject of Sales Tax on ‘Works Contract’ for the reason the words ‘sale of goods’ in entry 48 of list II of Vllth Schedule of the Government of India Act, 1935 cannot be construed in its popular sense but must be interpreted in its legal sense. His Lordship Venkatarama Ayiar, J. observed: “A power to enact a law with respect to tax on sale of goods under the entry must, to be intra vires be one relating in fact to sale of goods and accordingly, the Provincial legislature cannot in the purported exercise of its power to tax sales tax transactions which are not sales by merely enacting that they shall be sales.”The same question came up for consideration before the Kerala High Court in two cases, one (1957 KLT 380) before the above mentioned Supreme Court decision and one after the decision (1959 KLT 582). Both the decisions arose under the Travancore-Cochin Sales Tax Act, 1125. In both these cases the Kerala High Court held that the legislation is valid on the ground that ‘the principle of the Madras Case cannot apply to Travancore-Cochin Sales Tax Act, 1125 because on 5-1-1950 when it was passed and also on 17 - 1-1950 when it received the assent of the Raj Pramukh the Travancore-Cochin legislature had plenary powers of legislation and the Constitution had not come into force so as to bring the fetters of entry 54 in list II of the Vllth Schedule therein corresponding to entry 48 in list II of Vllth Schedule of the Government of India Act, 1935 which governed the Madras Case.

The anomaly referred to in the beginning of this article arises out of extension of Travancore-Cochin Sales Tax Act, 1125 to Malabar area. Travancore-Cochin Sales Tax Act, 1125 was extended to Malabar area by Travancore-Cochin Sales-Tax Amendment Act, 1957 (“Act XII of 1957) of Kerala legislature. This Act came into force on 1-10-1957.

It is clear from the Supreme Court decision that the State legislature is not competent to enact on the subject of Sales Tax on ‘Works Contract’ after the Constitution came into force. Therefore the enactment which extends the Sales Tax on ‘Works Contract’s beyond the powers of Kerala legislature it may be argued that the Kerala legislature is only adopting or extending a valid legislation to another part of the State. This argument is not acceptable because if legislature cannot do anything directly, it cannot do it indirectly. The observation of ‘the Allahabad High Court in Dureshewar Dayal v. Secretary of Bar Council (A.I.R. 1954 All.728, DB) is apposite in this context: “Adopting a law made by another legislature is not a matter to be found in list II and III. Therefore no law made by a State legislature can be justified on the ground that though it is not with respect to any of the matters dealt with in list II and 111, it is simply adopting a law validily made by another legislature.”

“If a legislature cannot do anything directly, it cannot do it indirectly; if a State legislature cannot directly enact with respect to a certain matter it cannot do so indirectly by simply adopting a law made with respect to it by another legislature.”

From the above discussion it can be concluded that the Kerala legislature is not competent to extend Sales Tax on ‘Works Contract’ to Malabar area and to that extent Travancore-Cochin Sales Tax Amendment Act, 1957 (Act XII of 1957) is ultra vires the Constitution.

6. In the Federal Republic of Germany: Article 103(1) of the Constitution provides “Every individual has a right to a fair hearing before a court”. Code of Criminal Procedure Para 137 provides that in criminal proceedings the accused has the right to be represented by a lawyer of his own choice. Code of Criminal Procedure paras 140, 141, 145 provide that in important cases, the services of a lawyer is imperative and if none is chosen, the President of the court appoints one. Para 149 provides that the close relatives such as the wife or husband or other relatives should be admitted during the proceedings. Para.338(5) provides that non-appearance of a defence counsel is a good ground for setting aside the conviction. If there was no fair hearing, the conviction will be set aside by the Federal constitutional court on that ground alone, apart from the merits of the case.

7. in Italy: Art. 24 of the Constitution guarantees the right of defence and freedom of appeal to higher tribunals by a lawyer and in serious cases if the accused does not engage a lawyer, the court will engage one and lawyers accept the engagement and conduct of the proceedings free of remuneration as part of their duty to that court. Non-appearance of a lawyer for the accused in such cases makes the proceedings void. Article 24(3) provides that “Indigent persons are assured through suitable institutions the means of conducting pro­ceedings and defending themselves in any jurisdiction”. There are institutions regulated by the State which offer legal assistance to poor accused. In large cities there are associations of lawyers for free legal assistance to the poor parties, senior lawyers undertaking the work with the instinct of helping the poor and juniors undertaking the work with the idea of gaining experience in practice of law.

8. In the U.S.S.R. these rights do not appear to have been recognized. The subordinate criminal judiciary do not seem to be an independent judi­ciary; the appointments are made by the procurator. Article 50 of the Indian Constitution provides for the separation of the judiciary from the executive, so that the judiciary should be uninfluenced by the executive in any manner. It is difficult to understand how an accused can have a fair trial from a magistrate who owns his position to a procurator. A lawyer has no place in the pre-trisil proceedings; accused is left to himself in the early stages of the proceedings. A lawyer can appear only during trial and that at the hearing stage when the court has already come to a decision about the matter pending. Even during trial, lawyer can appear only if the prosecutor appears; courts can conduct preceedings in the absence of both parties. According to the Indian Law, the evidence can be taken only in the presence of the accused, otherwise the evidence is inadmissible. Even during trial, proceedings in court can be conducted secretly. Under Section 352 of the Indian Criminal Procedure Code, trials had to be conducted in public. Article 76 of the Republic of China makes it imperative that proceedings shall be in public. The presiding judge can refuse to allow a particular counsel from appearing for an accused, so that the right of the accused to have a lawyer of his own choice is denied. Sentence by order i. e. the party secretary instructing the judges as to the judgment to be pronounced, the extent of punishment to be awarded and the judge acting up to that direction appears to be a normal feature. “Sentence ex post facto” i.e. the sentenceand execution of the sentence preceding the trial and conviction is followed in some cases.

9. It is hoped that those States in which there are no adequate provisions for safe-guarding a fair trial of accused in criminal proceedings, adequate provisions will be made and those States in which there are provisions which curtail the rights of accused, will repeal those provisions.

Usufructuary Mortgages in Malabar Whether a Kanam

(Sri. K.E. Gopinath, B. Sc, BL., Advocate, Kozhikode)

In the article under the above heading at page 86 of 1959 K.L.T. Sri. M. Velayudhan Nair, has embarked upon a roving enquiry and discussion as to the basic difference between a kanom and a mortgage. He has proceeded on the basis that the Kerala High Court has taken the view that a usufructuary-mortage in Malabar is ipsofacto a kanom within the ambit of the Malabar Tenancy Act. According to him the decisions in Janardanan vs. Kuppandi (1959 K.L.J. 119:1959 K.L.T. 118) and Emmunni Panikar vs. Krishna Panicker (1958 K.L.J. 805; 1958 K. L. T. 756) lay down the rule that all usufructuary mortages in Malabar are to be treated as kanoms. I would respectfully submit that he has started on wrong premises. As a matter of fact those decisions do not warrant such a conclusion. The only question decided in both the cases was whether the transaction under consideration satisfied the definition of kanom in Section 3(14) of the Malabar Tenancy Act, 1951. It is too much to assume that their Lordships were, in those judgments, laying down the proposition that all usufructuary mortgages are really kanoms. The argument underlying the article would have been well understood if the attempt was to show that the amended definition of kanom has failed to recognize the essential features of a kanom tenure. In my humble opinion those decisions do not create an anomalous situation of having to treat all usufructuary mortgages as kanoms, as the learned critic seems to suggest or apprehend.

In janardanan Vs. Kuppandi, which arose from a suit for redemption, the Pull Bench confirmed the judgment of the lower court disallowing the claimfor redemption on the basis that the transaction was proved to be a kanom having fixity of tenure. It was proved and admitted in evidence that no amount in cash passed under the document (claiming to be a mortgage) and that the only consideration was the kanartham under a prior kanom. The simple and solitary point urged in appeal was that in as much as the terms “kanomdar” and “kanartham” found in the definition of kanom in Section 3 (14) of the 1951 Act, were absent in the document the transaction can never be a kanom. If the absence of those terms is the sine quo non of a kanom, the problem would have been very easy. It passes beyond one’s comprehension how such a plea could be expected to have found favour with the judges. In view of the facts stated in para 10 of the judgment it is incorrect to state that their Lordships do not indicate their reasons for holding that the transaction spells a kanom. So much so, on the facts and circumstances of the case and the argument advanced in the appeal there is absolutely no basis and scope for arriving at a different conclusion. Without proving the transaction to be a mortgage how can it be expected that the mortgage was held to be a kanom?

In Bmmuni Panikkar vs. Krishna Panikkar the question that came up for consideration was whether the suit for redemption of a kaivasapanayam was liable to be stayed under Act I of 1957. The decision turned on the question whether the transaction would satisfy the definition of kanom in Section 3 (14) of the Tenancy Act. His Lordship Sri N. V. Iyengar J. held that the transaction was a kanom within the meaning of the definition. It was argued that the transaction to be a kanom, besides the incidents referred to in the definition, the incidents of renewal fee and twelve years’ period should still bedeemed subsisting, to be satisfied in spite of their deletion from their definition-a proposition not easy to accept.

It is a well known fact that the name given to a document is not the conclusive proof of its character. From a study of the origin of kanom and its customary incidents later modified by statute, it will be evident that no hard and fast rule has been laid down to test if a transaction is a kanom or a mortgage. In fact these terms have been used as synonymous. This fact has been well recognized by the legislature and Section 22 of the Tenancy Act and Section 25 (6) of the Kerala Act 31 of 1958 are significant for the purpose. Under these sections the parties are at liberty to plead and prove that a transaction purporting to be a usufructuary mortgage is not in fact such but a kanom within the purview of the tenancy Act and vice versa.

The Malabar Tenancy Act of 1930 was enacted on the basis of the Raghaviah Committee. The report stated that the renewal fee was being granted to jenmies as a concession because it was thereby assuring a sort of qualified fixity. In 1951 the legislature was not fettered by the considerations of the said committee and that was the reason why the incidents of the renewal fee and the 12 years’ period found in the old definition of kanom were deleted. Now, what exactly is this renewal fee? Is it an incident of a kanam tenure? Various textbooks on the subject reveal two different views. One view is that renewal fee is a soujanyam or a voluntary gift and the other view is that it is a succession duty. But all are agreed that there is no basis for this renewal fee and that its non-payment would not invalidate a kanom contract. The pay­ment of renewal fee is not dependent on any rule or custom and is not a necessary or customary incident of a kanom tenure. It is neither an inherent right of the jenmi, nor a part of the customary law of Malabar. It is only a statutory right conferred by the 1930 Act.

By amending the definition of kanom it was intended by the legislature that the demises of land purporting to be a kanom or a usufructuary mortgage satisfying the definition should be brought within the ambit of the Act. It is worthwhile to note that the 1951 Act contampiates kanoms having fixity of tenure and kanoms which do not have. Kanoms wherein consideration is less than 40% in North Malabar and 60% in South Malabar have fixity of tenure, subject to eviction on specified grounds. It is only a truism to say that the amended definition of kanom would embrace usufructuary mortgages as well. That is all the more made clear by the fact that the provisions of the Act were made applicable to certain portions in South Kanarn, with the result that what had been considered as usufructuary mortgage pure and simple, had come thereby within the definition of kanom. Hence the incidents of renewal fee and 12 years period were not intended to be recognized by the Legislature as a sine quanon of a kanom tenure.

Under the circumstances, one fails to see how it is difficult to realise that the amended definition of kanom has the effect of bringing within the ambit of the Malabar Tenancy Act, transactions in the nature of usufructuary mortgages as well as a consequence of which the rights of the mortgagee get enlarged and he is elevated to the status of a kanomdar, .entitled to the benefits under the Act, for which he might not have bargained for. It is also impossible to see how any anomalous position is thereby created, much less by the decisions.