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The Doctrinaire Trident Testing Constitutionality of the laws

Posted on December 28, 2017 | by Mohan Rao Bolla | Leave a Comment

–Prof. Dr. Mohan R Boll

INTRODUCTION

The word‘doctrine’has been derived from the Greek word “doxa.” It is understood as “opinion.”Originally, doctrines were those of the Catholic Church.The teachings of the so-called doctors (religious scholars) of the Church were considered as doctrines. But today a doctrine can come from many other sources. Old and established legal principles are called legal doctrines. As a general rule, there is an agreement that the doctrine is not a formal source of law but rather “a source of inspiration” of the rule of law or a de facto authority.[3]The paper attempts to highlight some leading judgments of the Supreme Court of India to trace the principles of law forming basis for the application of the three main doctrines viz., the doctrines of Pith and substance, repugnancy and colourable legislation which have been applied by the common law systems. The trident testing the constitutionality of the laws dealing with the legislative relations of the Union and the States in India is being analysed in this paper.

1. Doctrine of Pith and Substance

The doctrine of pith and substance is otherwise known as the doctrine of predominant purpose or true nature and character of law. The doctrine finds its origin from the principle that it is necessary to examine the true nature and character of the legislation to know whether it falls in a forbidden sphere.[4] The doctrine is sometimes expressed in terms of ascertaining the ‘nature and the true character of Legislation´, and it is also emphasized, that the name given by the Legislature in short title, is immaterial. Again, for applying the pith and substance´ doctrine, regard is to be had (i) to the enactment as a whole; (ii) to its main objects; and (iii) the scope and effects of its provisions. This doctrine was first applied in India by Justice Porter, in Prafulla Kumar Mukherjea v. Bank of Commerce Ltd., Khulna.[5]It was held that the State law, dealing with money lending, is not invalid, merely because it incidentally affects promissory notes. Sir Maurice Gwyer, C.J. in Central Provinces and Berar Act No. XIV of 1938,[6]observed that the doctrine of pith and substance is sometimes invoked to find out the nature and content of the legislation. However, when there is an irreconcilable conflict between the two legislations, the Central legislation shall prevail. However, every attempt would be made to reconcile the conflict. The doctrine of ‘pith and substance’ evolved by the Privy Council has been followed by this Court throughout. Thus, in State of Bombay v. F. N. Balsara[7] Fazl Ali, J., representing the Constitution Bench followed the decision of the Judicial Committee, reiterated that if the Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another Legislature. It was held that the validity of an Act is not affected if it incidentally trenches on matters outside the authorised field, and therefore it is necessary to inquire in each case what is the pith and substance of the Act impugned. If the Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another legislature.

1.1 Determines the true nature and character

Sir Maurice Gwyer, C. J., in Subramanyam Chettiar v. Muthuswamy Goundan,[8] has observed that it might inevitably happen from time to time that legislation, though purporting to deal with a subject in one list,[9] touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its ‘pith and substance’, or its ‘true nature and character’, for the purpose of determining whether it is legislation with respect to matters in this list or in that.”[10]

In Atiabari Tea Co. Ltd. v. State of Assam,[11] Gajendragadkar, J. for the majority, had explained the purpose of the rule of pith and substance thus:

“The test of pith and substance is generally and more appropriately applied when a dispute arises as to the legislative competence of the legislature, and it has to be resolved by reference to the entries to which the impugned legislation is relateable, when there is a conflict between the two entries in the legislative list, and legislation by reference to one entry would be competent but not by reference to other, the doctrine of pith and substance is invoked for the purpose of determining the true nature and character of the legislation in question.”

Dr. MukundakamSharma,J., in Rajiv Sarin v. State of Uttarakhand[12] has held that as and when there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it would also be necessary for the courts to examine the true nature and character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme.[13]

1.2 Doctrine flows from Article 246(1)

All India Federation of Tax Practitioners v. Union of India,[14] concerns the constitutional status of the levy of service tax and the legislative competence of Parliament to impose service tax under Article 246(1) read with Entry 97 of List I of the Seventh Schedule to the Constitution. S. H. Kapadia J., opined that “This doctrine of pith and substance flows from the words in Article 246(1), quoted above, namely, with respect to any of the matters enumerated in List I. The bottom line of the said doctrine is to look at the legislation as a whole and if it has a substantial connection with the Entry, the matter may be taken to be legislation on the topic. That is why due weightage should be given to the words “with respect to” in Article 246 as it brings in the doctrine of ‘pith and substance’ for understanding the scope of legislative powers.”[15]

The Dipak Debbarma Court, [16]speaking through Justice Ranjan Gogoi, has held that in interpreting Article 246 regard must be had to the constitutional scheme which visualises a federal structure giving full autonomy to the Union Parliament as well as to the State legislatures in their respective/demarcated fields of legislation. The problem may, however, become a little more complex than what may seemingly appear as the two legislations may very well be within the respective domains of the concerned legislatures and, yet, there may be intrusion into areas that fall beyond the assigned fields of legislation. In such a situation it will be plain duty of the Constitutional Court to see if the conflict can be resolved by acknowledging the mutual existence of the two legislations. If that is not possible, then by virtue of the provisions of Article 246(1), the Parliamentary legislation would prevail and the State legislation will have to give way notwithstanding the fact that the State legislation is within the demarcated field (List II). This is the principle of federal supremacy which Article 246 of the Constitution embodies. The said principle will, however, prevail provided the pre- condition exists, namely, the Parliamentary legislation is the dominant legislation and the State legislation, though within its own field, has the effect of encroaching on a vital sphere of the subject or entry to which the dominant legislation is referable. This is the principle that is discernible from the Constitution Bench judgment of this Court in State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors.[17]

1.3 Resolves the conflict of jurisdiction

M Venkatachalliah J., in Ujagar Prints Etc v. Union of India [18]had observed that the doctrine is applied to resolve the conflict of jurisdiction. If the Act in its pith and substance fails in one List it must be deemed not to fail in another List, despite incidental encroachment.Its validity should be determined accordingly. The pith and substance rule, thereby, resolves the problem of overlapping of “any two entries of two different Lists vis-a-vis the Act on the basis of an inquiry into the “true nature and character” of the legislation as a whole and tries to find whether the impugned law is substantially within the competence of the Legislature which enacted it, even if it incidentally trespasses into the legislative field of another Legislature.

1.4 Aids to validate legislation

Rangnath Misra J., in Vijay Kumar Sharma v.State of Karnataka [19]has observed that when a law is impugned on the ground that it is -ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to thescope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence.[20]When the legislative encroachment is under consideration the doctrine of pith and substance comes to the aid to validate a legislation which would otherwise be invalid for the very want of legislative competence. When the repugnancy between the two legislations is under consideration, what is in issue is whether the provision of the State enactment though otherwise constitutionally valid, has lost its validity because the Parliament has made legislation with a conflicting provision on allegedly the same matter.

1.5 Operation in Concurrent Field

In Tika Ramji & Ors. etc. v. State of U.P. & Ors.,[21] the same question had arisen for resolution. It was held that- the pith and substance is applicable only when both the Centre as well as the State Legislatures were operating in the Concurrent field. There was no question of any trespass upon the exclusive jurisdiction vested in the Centre under Entry 52 of List I.

1.6 State’s Competence validates the Act

Justice A Alagiriswami J., speaking for the Constitution Bench of the Supreme Court of India in
The Kerala State Electricity Board v. Indian Alluminium Co.,[22] case has analyzed the doctrine of pith and substance. The Kerala State Electricity Board has imposed surcharge on the bulk consumers of electricity declaring electricity as ‘essential article’. The declaration was made in pursuance of the power conferred on it under Section 2 (a) of the Kerala Essential Articles Control (Temporary Powers) Act, 1961. The Surcharge Order called [the Kerala State Electricity (Supply and Licensees Areas) Surcharge Order, 1968] was made under section 3 of the Act. The respondents, who were bulk consumers of electricity, questioned before the High Court the validity of the surcharge order. It was alleged that the Kerala Act was repugnant to the Electricity Act, 1910 and the Electricity (Supply) Act, 1948 (both are Central Acts). The order had been struck down by the High Court. Hence, the Electricity Board had moved an appeal to the Supreme Court. The Apex Court had appreciated the criteria to invoke the doctrine of pith and substance. It was held “For deciding under which entry a particular legislation falls the theory of “pith and substance” has been evolved by the Courts. If in pith and substance a legislation falls within one List or the other but some portion of the subject matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching.” The Court found that the Kerala Act was a matter falling under entries 26 and 27 of List II of Schedule VII of the Constitution of India. Therefore, it was held that the State Act does not trench upon the field occupied by the 1948-Act which falls partly under Entry 43 of List I and partly under Entry 38 of List III.

1.7 Incidental encroachments

Justice Ruma Pal, in ITC Ltd. v. Agricultural Produce Market Committee, [23]observed that the federal structure under the constitutional scheme can also work to nullify an incidental encroachment made by the Parliamentary legislation on a subject of a State legislation where the dominant legislation is the State legislation.

Justice Rangnath Misra in Vijay Kumar Sharma v. State of Karnataka.,[24] was dealing with the validity of denial of permits to the contract carriage operators in Karnataka. The provisions of Sections 14 and 20 of Karnataka Contract Carriages (Acquisition) Act, 1976 provides for the prohibition for fresh permits or renewal of existing permits on or from the date of vesting. On the other hand, the provisions of Sections 74 and 80(2) of the Motor Vehicles Act, 1988 [central Act] says that ordinarily not to refuse to grant an application for permit of any kind. Thus the petitioners contended a conflict of the two legislations. The Supreme Court observed:

“When the legislative encroachment is under consideration the doctrine of pith and substance comes to the aidto validate a legislation which would otherwise be invalid for the very want of legislative competence. ….The doctrine of Pith and Substance has no application when the matter in question is covered by an entry or entries in the Concurrent List and has occupied the same field both in the Union and the State Law. It matters little as in which entry or entries in the Concurrent List the subject-matter falls or in exercise whereof the Act/provision or provisions therein was made. The Parliament and Legislature of the State have exclusive power to legislate upon any subject or subjects in the Concurrent List. The question of incidental or ancillary encroachment or to trench into forbidden field does not arise. The determination of its ‘true nature and character also is immaterial.”

It was held that the Karnataka Act was enacted by the State Legislature for acquisition of contract carriages under Entry 42 of the Concurrent List read with Article 31 of the Constitution to give effect to the provisions of Articles 39(b) and (c) thereof. The Motor Vehicles Act, 1988 on the other hand was enacted by the Parliament under Entry 35 of the Concurrent List to regulatethe operation of the motor vehicles. They thus occupy different areas. Therefore, it was ruled that the doctrine of pith and substance had no application in the case.

The doctrine of pith and substance has no application when the matter in question is covered by an entry or entries in the Concurrent List and has occupied the same field both in the Union and the State Law.[25] It matters little as in which entry or entries in the Concurrent List the subject-matter falls or in exercise whereof the Act/provision or provisions therein was made. The Parliament and Legislature of the State have exclusive power to legislate upon any subject or subjects in the Concurrent List. The question of incidental or ancillary encroachment or to trench into forbidden field does not arise. The determination of its ‘true nature and character also is immaterial.

1.8 Social Welfare Law Preferred

In Vishal N Kalsaria v. Bank of India & Ors.,[26] respondent Nos. 4 and 5 had been granted a loan against equitable mortgage of several properties by the Bank of India [including the property in which the appellant is allegedly a tenant.] The respondents failed to clear the dues from the loan amount borrowed by them within the stipulated statutory period of 60 days. On an application before the Chief Metropolitan Magistrate, Mumbai u/S.14 of the SARFAESI Act the Magistrate directed the Assistant Registrar, Borivali Centre of Courts to take possession of the secured assets. The appellant approached the Court under the Maharashtra Rent Control Act, 1999, and the matter ultimately reached the Supreme Court.

Justice Gopala Gowda observed that the Rent Control Act being asocial welfare legislation must be construed as such. It was categorically maintained that ‘A landlord cannot be permitted to do indirectly what he has been barred from doing under the Rent Control Act, more so when the two legislations, that is the SARFAESI Act and the Rent Control Act operate in completely different fields.’ While SARFAESI Act is concerned with Non- Performing Assets of the Banks, the Rent Control Act governs the relationship between a tenant and the landlord and specifies the rights and liabilities of each as well as the rules of ejectment with respect to such tenants. The Apex Court clarified that it was a settled position of law that once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act. It was held that ‘a tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant.’ Accordingly, the Apex Court ruled that the provisions of the SARFAESI Act cannot be used to override the provisions of the Rent Control Act.

1.9 Relatable Subject matter

In State Bank of India vs Santosh Gupta,[27] R.F. Nariman, J. observed that applying the doctrine of pith and substance to SARFAESI, it was clear that in pith and substance the entire Act is referable to Entry 45 List I read with Entry 95 List I. The Act deals with recovery of debts due to banks and financial institutions, inter alia through facilitating securitization and reconstruction of financial assets of banks and financial institutions. The Act sets up a machinery in order to enforce the provisions of the Act. In pith and substance, SARFAESI does not deal with “transfer of property”. In fact, in so far as banks and financial institutions are concerned, it deals with recovery of debts owing to such banks and financial institutions and certain measures which can be taken outside of the court process to enforce such recovery. Under Section 13(4) of SARFAESI, apart from recourse to taking possession of secured assets of the borrower and assigning or selling them in order to realise their debts, the banks can also take over the management of the business of the borrower, and/or appoint any person as manager to manage secured assets, the possession of which has been taken over by the secured creditor. Banks as secured creditors may also require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom money is due or payable to the borrower, to pay the secured creditor so much of the money as is sufficient to pay the secured debt. It is thus clear that the transfer of property, by way of sale or assignment, is only one of several measures of recovery of a secured debt owing to a bank and this being the case, it is clear that SARFAESI, as a whole, cannot possibly be said to be in pith and substance, an Act relatable to the subject matter “transfer of property”. At this juncture it is necessary to point out that insofar as the State of Jammu & Kashmir is concerned, Sections 17A and Section 18B of SARFAESI, which apply to the State of Jammu & Kashmir, substituted ‘District Judge’ and the ‘High Court’ for the ‘Debts Recovery Tribunal’ and the ‘Appellate Tribunal’ respectively.[28]

2. Doctrine of Repugnancy

The concept of repugnancy does not arise as far as the American and Canadian Constitutions are concerned, as there is no Concurrent List there, nor is there any provision akin to Article 254 of the Constitution of India.[29]

2.1 Only under Federal Constitutions

Repugnancy arises in the Australian Constitution, which has a Concurrent List and a provision i.e. Section 107, akin to Article 254 of the Constitution of India. In the Australian cases, the concept of Repugnancy has really been applied in the context of Criminal Law where for the same offence, there are two inconsistent and different punishments, which are provided and so the two laws cannot co-exist together. To put it differently, an area where the two Acts may be repugnant is when the Central Act evinces a clear interest to be exhaustive and unqualified and therefore, occupies the entire field.

2.2 Applicability in India – Two Repugnant Situations

In M.P. Sundararamier & Co. v. The State of Andhra Pradesh & Anr,[30] the Supreme Court has held that in our Constitution, a conflict of the taxing power of the Union and of the States cannot arise. It follows that the two laws viz. sub-s. (3) of s. 5 of the Act and paragraph 21 of the Control order issued by the Central Government under sub-s. (1) of s. 3 of the Essential Commodities Act, operate on two separate and distinct fields and both are capable of being obeyed. Therefore, it was held that there was no question of any clash between the two laws and the question of repugnancy does not come into play.

In India the doctrine of Repugnancy or inconsistency between the provisions of Central and State enactments can occur in two situations. The first, in case of a Central and a State Act on any field of entry mentioned in List III of the Seventh Schedule (Concurrent List). To such a situation of repugnancy or inconsistency, the provisions of Article 254 of the Constitution would apply.[31] If there is such an inconsistency, Article 254(1) makes it very clear that the central law will prevail subject, however, to the provisions of Article 254(2) and further subject to proviso to Article 254(2).[32]

The second situation of repugnancy or inconsistency is between to a subsequent Central law covered by an Entry of List I and an earlier State law relatable to one or more Entries of List II. How such a situation is to be resolved and answered and which legislation would have primacy is the moot question that arises for consideration by the Courts.[33] Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed.[34]

2.3 The Four propositions

Four propositions were laid down for application of the doctrine by a Constitution Bench of 5 judges in M. Karunanidhi v. Union of India.[35]Justice Fazal Ali, speaking for the Court referring to the earlier authorities opined that the following propositions emerge:-

1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field, there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.

2.4 Endeavour to Reconcile the Conflict

The Apex Court in M/s Hoechst Pharmaceuticals Ltd. and Ors. v. State of Bihar,[36]had held that where the two lists under Schedule VII appear to conflict with each other, an endeavour should be made to reconcile them by reading them together and applying the doctrine of pith and substance. It is only when such attempt to reconcile fails that the non-obstante clause in Art. 246(1) should be applied as a matter of last resort. For, in the words of Gwyer, C.J. in the matter of the Central Provinces & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938,[37] :”For the clause ought to be regarded as a last re- source, a witness to the imperfections of human expression and the fallibility of legal draftsmanship.” Gwyer, C.J. reiterated [38] that the principles laid down by the Privy Council in a long line of decisions in the interpretation of ss. 91 and 92 of the British North America Act, 1867 must be accepted as a guide for the interpretation of s. 100 of the Government of India Act, 1935:

“It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that build adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its ‘pith and substance’ or its true nature and character for the purpose of determining whether it is legislation in respect of matters in this list or in that.”

2.5 Legislative Supremacy

Justice S. M. SIKRI, in State of Orissa vs. M.A. Tulloch & Co.,[39] has explained the concept of repugnancy as under:

“……Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience of each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne the on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed compression of provisions of the two statutes but by the mere existence of the two pieces of legislation………”

Justice Ranjan Gogoi in UCO Bank v. Dipak Debbarma,[40]has observed that the doctrine of repugnancy or inconsistency between the provisions of Central and State enactments can occur in two situations. The first, in case of a Central and a State Act on any field of entry mentioned in List III of the Seventh Schedule (Concurrent List). To such a situation of repugnancy or inconsistency, the provisions of Article 254 of the Constitution would apply. If there is such an inconsistency, Article 254(1) makes it very clear that the central law will prevail subject, however, to the provisions of Article 254(2) and further subject to proviso to Article 254(2). In the present case the conflict between the Central and the State Act is on account of an apparent overstepping by the provisions of the State Act dealing with land reform into an area of banking covered by the Central Act. The test, therefore, would be, to find out as to which is the dominant legislation, having regard the area of encroachment. The Court held that the dominant legislation being the Parliamentary legislation(the SARFAESI Act), the provisions of the Tripura Act of 1960, pro tanto, (Section 187) would be invalid. It is the provisions of the Act of 2002, which do not contain any embargo on the category of persons to whom mortgaged property can be sold by the bank for realisation of its dues that will prevail over the provisions contained in Section 187 of the Tripura Act of 1960.

2.6 No repugnancy if the matters are different

A Constitution Bench of the Apex court speaking through Venkatarama Ayyar, J. in Zaverbhai Amaidas v. State of Bombay,[41] emphasised that the important thing to consider with reference to this provision was whether the legislation is ‘in respect of the same matter’. That is to say if the later legislation deals not with the matters which formed the subject of the earlier legislation, but with other and distinct matters though of a cognate and allied character, then Art. 254(2) will have no application.

2.7 Different Fields

Justice Mukundakam Sharma in Rajiv Sarin v. State of Uttarakhand & Ors.,[42] the question was whether there was repugnancy between S. 18 (1) (CC ) of the Kumaun and Uttrakhand Zamindari Abolition and Land Reforms Act, 1960 and S.37 and S 84 of The Forest Act, 1927. No compensation has been provided under the U.P. Amt Act 1978 for private forests acquired for being neglected or mismanaged. But, if the acquisition is done under the Forest Act r/w the Land Acquisition Act 1894 market value and ‘solatium’ is payable. The Apex Court ruled that the Forest Act, 1927 has nothing to do with the agrarian reforms but deals with forest policy and management. The Forest Act only gives an enabling power to the government to acquire forests in accordance with the provisions of the Land Acquisition Act, 1894. The Court found that the UP Act is relatable to Schedule VII List II Entry 18 read with List III Entry 42. Hence, it was held that there is no repugnancy between the provisions of both the Acts.

2.8 Provisions of the Code prevail over

In Lalitha Kumari v. State govt. of UP,[43] it was held that it was clear from the mandate of Article 254(1) of the Constitution that if there is any inconsistency between the provisions of the Code and the Police Act, 1861, the provisions of the Code will prevail and the provisions of the Police Act would be void to the extent of the repugnancy. If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to be registered in k or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus, FIR is to be recorded in the FIR Book, as mandated under Section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as FIR.

2.9 Direct and Irreconcilable Conflict

In Deep Chand v. State of Uttar Pradesh,[44] the Supreme court had pointed out that repugnancy between two statutes would arise (i) if there was direct conflict between the two provisions and (ii) if the law made by Parliament and the law made by the State Legislature occupied the same field. It has already been stated that the State Act intended to eliminate private operators from the State in regard to contract carriages acquired under the existing permits, vehicles and ancillary property and with a view to giving effect to a monopoly situation for the State undertaking made provision in s. 20 for excluding the private operators. The 1988 Act does not purport to make any provision in regard to acquisition of contract carriage permits which formed the dominant theme or the core of the State Act. Section 20 of the State Act creates a monopoly situation in favour of the State undertaking qua contract carriages by keeping all private operators out of the filed. Since ss. 73, 74 and 80 of the 1988 Act do not contain any provision relating to who the applicants for contract carriages can or should be, and those sections can be applied without any difficulty to the applications of the State undertaking, and there does not appear to be any repugnancy between the two Acts for invoking Art. 254 of the Constitution. A provision in the State Act excluding a particular class of people for operating contract carriages or laying down qualifications for them would not run counter to the relevant provisions of the 1988 Act.

2.10 Saving of State Law by Presidential Assent

In State of Tamil Nadu v. Adhiyaman Education and Research Institute,[45]Justice PB Sawant has held that to the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative. If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.

Justice K.G. Balakrishnan, in Govt. of A.P. v. J.B. Educational Society, [46]has dealt with the principles for the application of the doctrine of repugnancy. It was held that Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President’s ascent prevails in that State; this again is subject to the proviso that the Parliament can again bring a legislation to override even such State legislation. The Apex Court observed that the educational needs of the locality are to be ascertained and determined by the State. Having regard to the regulations framed under the AICTE Act, the representatives of the State have to be included in the ultimate decision making process and having regard to the provisions of the Act, the Writ Petitioners would not in any way be prejudiced by such provisions in the A.P. Act. Moreover, the decision, if any, taken by the State authorities u/S 20(3)(a)(i) would be subject to judicial review and we do not think that the State could make any irrational decision about granting permission. Hence, it was ruled that Section 20(3)(a)(i) is not in any way repugnant to Section 10 of AICTE Act and it is constitutionally valid.

2.11 Presidential Assent not required

Justice K.S. Radhakrishnan, in KT Plantatations vs. State of Karnataka,[47] was dealing with the clash between the Land Acquisition Act, 1894 and the Devikarani Roerich (Acquisition and Transfer) Act 1996. The q of repugnancy under Article 254 arises when the provisions of both the laws are fully inconsistent or are absolutely irreconcilable and it is impossible without disturbing the other or conflicting results are produced, when both the statutes covering the same field are applied to a given set of facts. The Court found that the Devikarani Roerich (Acquisition and Transfer) Act, 1996 falls under List II entry 18. The dominant purpose of the Act was to preserve and protect Roerich estate. Incidentally the Act deals with the acquisition of paintings, artefacts and the other valuable belongings of the Roerichs. Finally, the Apex Court observed that there was no repugnancy between the provisions of the Land Acquisition Act, 1894 and the Karnataka Land Reforms Act, 1961, and hence no assent of the President is warranted under Article 254(2) of the Constitution.

2.12 Legislative Incompetence Invalidates the Law

Justices V. Gopala Gowda, Amitava Roy were dealing with the doctrine of repugnancy in M/S. Gujarat Ambuja Exports Ltd v. State of Uttarakhand &Ors.[48]The State legislature of Uttarakhand enacted the Uttarakhand Agricultural Produce Marketing (Development and Regulation) Act, 2011. Subsequently, the State Legislature has amended the Act with retrospective effect. Section 27(c)(iii) of the amended Act provides that any such agricultural produce, which arrives in any Market area of the State for sale, storage, processing, manufacturing, transaction or other commercial purposes from any other State or out of Country for the first time, it shall be registered as “Primary Arrival” and on such produce, Market fee and Development cess shall be payable. Subsequently, the appellants were served notice requiring them to ensure that the payment of ‘Mandi fee’ or ‘development cess’. Aggrieved, the appellants filed Writ Petitions before the High Court challenging the constitutional validity of the Amendment Act, 2012. The validity of the Act and the notice-cum-demand were upheld by the High Court. The Division Bench has approved the orders of the Single judge. Hence, the appeal. The Supreme Court observed that the State Legislature did not have the competence to enact the impugned provisions which sought to levy ‘market fee’ and ‘development ‘cess’ even on those agricultural produce which were not being brought into the market for the purpose of sale, but for the purpose of manufacture or further processing. Since the State Legislature was not competent to enact the impugned provision of Section 27(c)(iii) of the Act, the same is liable to be struck down.

3. Doctrine of Colourable legislation

The doctrine is based on the maxim “Quandoa liquid prohibetur ex directo, prohibeturet per obliquum”. The maxim means-“when anything is prohibited directly, it is also prohibited indirectly”. “Whatever legislature can’t do directly, it can’t do indirectly”.

Doctrine of Colorable Legislation[49] or a fraud on the Constitution is built upon the founding stones of the doctrine of Separation of Power. Separation of Power mandates that a balance of power is to be struck between the different components of the State i.e. between the Legislature, the Executive and the Judiciary. The Primary Function of the legislature is to make laws. Whenever, Legislature tries to shift this balance of power towards itself then the doctrine of ‘Colorable Legislation’ is attracted to take care of Legislative Accountability. When power is exercised in bad faith to attain ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal, it is called colourable exercise of power.[50] In Naga People’s Movement of Human Rights v. Union of India,[51] held that ‘colourable legislation’ is enacting by the Legislature of a legislation seeking to do indirectly what it cannot do directly. The motive of the legislature is irrelevant to castigate an Act as a colourable device as ascertained by Justice V.R. Krishna Iyyer.[52]

3.1 Guise Acts Forbidden

Justice P B Gajendragadkar in the Hingir-Rampur Coal Co. Ltd. v. The State of Orissa,[53] has observed that cases may arise where under the guise of levying a fee Legislature may attempt to impose a tax; and in the case of such a colourable exercise of legislative power courts would have to scrutinise the scheme of the levy very carefully and determine whether in fact there is a co-relation between the service and the levy, or whether the levy is either not co-related with service or is levied to such an excessive extent as to be a presence of a fee and not a fee in reality.

3.2 Bonafides or motive of the Law- irrelevant

Justice B.K. Mukherjea, in K.C. Gajapati Narayan Deo v. The State of Orissa,[54]was reviewing whether theOrissa Estates Abolition Act, 1952 was a colourable piece of legislation as against the Orissa Agricultural Income-tax (Amendment) Act of 1950. It was contended that it was not a bona fide taxation statute at all. It was contended thatthe real object of which was to reduce, by artificial means, the net income of the intermediaries, so that the compensation payable to them under the Act might be kept down to as low a figure as possible.

Justice Mukherjea observed:

“….the question whether a law was a colourable legislation and as such void did not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts have to determine in such cases is whether though the legislature has purported to act within the limits of its powers, it has in substance and reality transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly….”

Justice Mukherjea opined that the idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears on proper examination, to be a mere presence or disguise. According to the Supreme Court, the impugned Act was in substance and form a law in respect to the “taxing of agricultural income”, as described in entry 46 of List 11 of the Seventh Schedule to the Constitution. The State Legislature was competent to legislate on this subject, the Act was not void, and the fact that the object of the legislature was to accomplish another purpose, viz., to reduce the compensation payable under the Estates Abolition Act, cannot render this law a colourable legislation and void. It was ruled that the ulterior object itself was not beyond the competence of the legislature.

In Sonapur Tea Co. Ltd. v. Must. Mazirunnessa, [55]it was reiterated relying on Gajapati’s case that the doctrine of colourable legislation really postulates that legislation attempts to do indirectly what it cannot do directly.

3.3 Legislative Overstepping

In Gullapalli Nageswara Rao v. APSRTC, [56] it was contended thatthe petitioner’s fundamental right to carry on the business of motor transport in Krishna District in Andhra Pradesh, was allegedly affected by the State taking over the routes on which the petitioners have been plying their stage carriages. It was argued that Chapter IVA of the Motor Vehicles Act, 1939 was a piece of colourable legislation. The real object was allegedly to take over their business, under cover of cancellation of permits, in contravention of Article 31 of the Constitution. Justice Subba Rao explained that the question of colourable legislation was, in substance, really one of legislative competence of the legislature that enacted it. The legislature could only make laws within its legislative competence. Its legislative field might be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution. The legislature could not over-step the field of its competency, directly or indirectly. It would be for the Court to scrutinize if the legislature in purporting to make a law within its sphere, in effect and substance, reached beyond it, it had in fact the power to the lawand its motive in making it would be irrelevant. It was therefore held that the Road Transport Department of the Andhra Pradesh Government is a State Transport Undertaking under the Central Act and therefore it was within its legal competence to initiate the scheme. Thus the doctrine was held inapplicable.

3.4 Different objects and different goals

In the State of Punjab v. Gurdial Singh & Ors.,[57] the Apex Court held that the action becomes bad where the true object is to reach an end different from the one for which the power is entrusted, guided by an extraneous consideration, whether good or bad but irrelevant to the entrustment. When the custodian of power is influenced in exercise of its power by considerations outside those for promotion of which the power is vested, the action becomes bad for the reason that power has not been exercised bonafide for the end design.

3.5 Advancement of the good objectives favoured

Justice R.K. Agrawal, along with HL Dattu, Arun Mishra JJ.,was dealing with the doctrine in
All Kerala Online Lottery Dealers v. State Of Kerala & Ors.[58] The State of Kerala, under Section 5 of the Lotteries (Regulation) Act, 1998, prohibited the sale of all computerized and online lottery tickets marketed and operated through vending machines, terminals, electronic machines and tickets sold through internet in the State. The State declared that Kerala shall be a free zone from online and internet lotteries. Being aggrieved by the notification, the All Kerala Online Lottery Dealers Association, State of Sikkim and one Sreekala and others filed Writ Petitions. The High Court and the Division Bench dismissed the writ petitions. Hence, the appeal to the Supreme Court.The question was whether there was a colourable exercise of power by the State.

The Apex Court held that it was not a case of abdication of legislative power and would not be bereft of any guidelines if the legislation banning lotteries was applied uniformly. It was further ruled that if the ban on the online lottery applies uniformly, it would not be a case of exercising power by a delegatee without any guidelines. The Act has been designedly made to suppress the mischief of lottery. Therefore, the Apex Court felt that an interpretation, which advances the object of the Act, should be favoured. That means, the State can prohibit online lotteries, if it is not running the said type of lotteries.

Conclusion

Thus, it can be summed up that the doctrine of pith and substance is otherwise known as the predominant purpose or true nature and character of law. When a law is impugned as ultra vires the powers of the legislature which enacted it, what has to be ascertained is its pith and substance or its true nature and character. [59]The doctrine is applied to determine whether a legislation is within the legislative competence under Articles 246(1) and 246(3) of the Constitution. The doctrine is applied to resolve the conflict of jurisdiction. If the Act in its pith and substance fails in one List it must be deemed not to fail in another List, despite incidental encroachment. Its validity should be determined accordingly. The pith and substance rule, thereby, resolves the problem of overlapping of “any two entries of two different Lists vis-a-vis the Act on the basis of an inquiry into the “true nature and character” of the legislation as a whole and tries to find whether the impugned law is substantially within the competence of the Legislature which enacted it, even if it incidentally trespasses into the legislative field of another Legislature.

When the repugnancy between the two legislations is under consideration, what is in issue is whether the provision of the State enactment though otherwise constitutionally valid, has lost its validity because the Parliament has made legislation with a conflicting provision on allegedly the same matter. The doctrine has no application when the matter in question is covered by an entry or entries in the Concurrent List and has occupied the same field both in the Union and the State Law. It matters little as in which entry or entries in the Concurrent List the subject-matter falls or in exercise whereof the Act/provision or provisions therein was made. The Parliament and Legislature of the State have exclusive power to legislate upon any subject or subjects in the Concurrent List. The question of incidental or ancillary encroachment or to trench into forbidden field does not arise. The determination of its ‘true nature and character also is immaterial. The doctrine is invoked in order to appreciate the true nature of the law and there are instances where the law has been ruled invalid if it overrides welfare legislation.[60]

The three doctrines help the Courts to verify the Constitutionality of the legislations enacted by the Parliament or the State legislatures respectively. While considering the constitutionality of the legislations, the Courts are expected to verify whether the legislature has power to enact the law. If yes, there shall be nothing to consider excepting a situation where the provision violates the Constitutional rights of the subjects. Having regard to the true nature and the purpose of the legislations, reading the legislations entirely, if the object of the legislations have a direct and reasonable nexus with the objective so as to subserve the common good, the legislation is to be validated.[61] If there is no power directly or impliedly vested with the legislature, or the objects sought to be achieved and the actual provisions have no consensus, the legislation or the part of it becomes ‘colourable’ and hence to be declared void. If the Legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the Legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power.[62] If the subject matter in substance is something which is beyond the legislative power, the form in which the law is clothed would not save it from condemnation. The constitutional prohibitions cannot be allowed to be violated by employing indirect methods. To test the true nature and character of the challenged legislation, the investigation by the Court should be directed towards examining (i) the effect of the legislation and (ii) its object, purpose or design. While doing so, the Court cannot enter into investigating the motives, which induced the Legislature to exercise its power.[63]

*****

[1] The paper has been published in The IUP Law Review Vol. VII No.4 October 2017
[2] Principal, Kristu Jayanti College of Law, Bengaluru.
[3] Kelly Buchanan, The Role of the “Doctrine” as a Source of Law in France, https://blogs.loc.gov/law/2010/12/the-role-of-the-doctrine-as-a-source-of-law-in-france/
[4] K. Ramaswamy, J., P.N. Krishna Lal and others v. Govt. of Kerala, 1994 (5) Suppl. SCR 526
[5]AIR 1947 PC 60
[6]In re Central Provinces and Berar Act No. XIV of 1938 (1939) FCR 18
[7] AIR 1951 SC 318 It was observed that the words “possession and sale” occurring in entry 31 of List II are to be read without any qualification whatsoever. It will not be doing any violence to the construction of that entry to hold that the Provincial Legislature has the power to prohibit the possession, use and sale of intoxicating liquor absolutely. The Court opined that there was no real conflict between entry 31 of List II and entry 19 of List I. Therefore, the Court found it difficult to hold that the Bombay Prohibition Act in so far as it purports to restrict possession, use and sale of foreign liquor is an encroachment on the field assigned to the Federal Legislature under entry 19 of List I.
[8] [1940] F.C.R. 188, 201
[9] Lists of subjects in Schedule VII of the Constitution of India
[10]Quoted by Ramaswami, J., speaking for the Constitution Bench, quoted with approval the classic observations of Sir Maurice Gwyer, C.J. in Subramanyam Chettiar v. Mulluswami Coundan 1940 F.C.R. 188.
[11] [1961] 1 SCR 809
[12] Dr. MukundakamSharma,J., in Rajiv Sarin v. State of Uttarakhand, (2011) 8 SCC 708
[13] Ibid.
[14] AIR 2007 SC 2990
[15] All India Federation of Tax Practitioners v. Union of India AIR 1970 SC 2990.
[16]Uco Bank & Anr vs Dipak Debbarma 2016 SCC OnLine SC 1391
[17]AIR 2010 SC 1476
[18] AIR 1989 SC 516
[19] AIR 1990 SC 2072 The petitioners, a group of contract carriage operators were denied permits that they had applied for under ss. 73, 74 and 80 of the Motor Vehicles Act, 1988 in view of the provisions of ss. 14 and 20 of the Karnataka Contract Carriages (Acquisition) Act, 1976. They filed writ petitions under Article 32 of the Constitution questioning the action of the R.T.A. It was contended that the provisions of ss. 14 and 20 of the Karnataka Act were in direct conflict with the provisions of ss. 74 and 80(2) of the M.V. Act, 1988 in as much as while the Regional Transport Authority was enjoined by the said provisions of the 1988 Act ordinarily not to refuse to grant an application for permit of any kind, the said provisions of the Karnataka Act prohibited any person from applying for, and any officer or authority from entertaining or granting application for running any contract carriage in the State; [Sub-section (1) of s. 14 prohibited applications for fresh permits or renewal of existing permits on or from the date of vesting.]The Karnataka Act was enacted by the State Legislature for acquisition of contract carriages under Entry 42 of the Concurrent List read with Article 31 of the Constitution to give effect to the provisions of Articles 39(b) and (c) thereof. The MV Act 1988 on the other hand was enacted by the Parliament under Entry 35 of the Concurrent List to regulate the operation of the motor vehicles. They thus occupy different areas.
[20]Venkatarama Aiyyar J., in A.S. Krishna v. State of Madras AIR 1957 SC 297
[21] [1956] SCR 393
[22] AIR 1976 SC 1031
[23] (2002) 9 SCC 232
[24] AIR 1990 SC 2072
[25] M Rangnath Misra J., in Vijay Kumar Sharma v. State of Karnataka &Ors. Etc AIR 1990 SC 2072
[26] Available at http://judis.nic.in/supremecourt/imgs1.aspx?filename=43272
[27] State Bank of India v. Santosh Gupta, available at judis.nic.in/supremecourt/imgs1.aspx?filename=44411
[28]State Bank of India v Santosh Gupta, available at judis.nic.in/supremecourt/imgs1.aspx?filename=44411
[29] Mukundakam Sharma,J., Rajiv Sarin & Anr vs State of Uttarakhand & Ors (2011) 8 SCC 708
[30] AIR 1958 SC 468
[31]UCO Bank &Anr v. Dipak Debbarma2016 SCC OnLine SC 1391
[32] If a State legislature amends a central Act and the law is reserved for presidential assent and receives it, then the State law shall prevail over the central Act. For instance, Section 2-A of the Industrial Disputes Act, 1947 has been amended by the State of Andhra Pradesh in 1987 enabling the individual dismissal disputes to be tried by Industrial Tribunal/ Labour Courts not withstanding anything under Section 10(1) of the Act i.e., without being referred by the appropriate government through the conciliation process or otherwise.
[33]Ibid.
[34] A P Sen J., T. Barai v. Henry Ah Hoe AIR 1983 SC 150
[35] (1979) 3 SCC 431
[36]1983 (4) SCC45
[37] AIR 1939 F. C. 1
[38] A.L.S.P.P. Subrahmanyan Chettiar v. Muttuswami Goundan (1940) 2 MLJ 170
[39] AIR 1964 SC 1284
[40]2016 SCC OnLine SC 1391 The provisions of the Act of 2002 (the SARFAESI Act) enable the bank to take possession of any property where a security interest has been created in its favour. Specifically, Section 13 of the 2002 Act enables the bank to take possession of and sell such property to any person to realise its dues. The purchaser of such property acquires a clear title to the property sold, subject to compliance with the requirements prescribed. Section 187 of the Tripura Act of 1960, on the other hand, prohibits the bank from transferring the property which has been mortgaged by a member of a scheduled tribe to any person other than a member of a scheduled tribe. This is a clear restriction on what is permitted by the Act of 2002 for the realisation of amounts due to the bank. The Act of 2002 is relatable to the Entry of banking which is included in List I of the Seventh Schedule. Sale of mortgaged property by a bank is an inseparable and integral part of the business of banking. The object of the State Act, as already noted, is an attempt to consolidate the land revenue law in the State and also to provide measures of agrarian reforms. The field of encroachment made by the State legislature is in the area of banking. So long there did not exist any parallel Central Act dealing with sale of secured assets and referable to Entry 45 of List I, the State Act, including Section 187, operated validly. However, the moment Parliament stepped in by enacting such a law traceable to Entry 45 and dealing exclusively with activities relating to sale of secured assets, the State law, to the extent that it is inconsistent with the Act of 2002, must give way. The High Court in the judgment under challenge has also taken the view that the impugned sale Notification dated 26.06.2012 is invalid for infraction of Rule 5 and Rule 8(5) of the Security Interest (Enforcement) Rules, 2002, in as much as the bank did not obtain any valuation report of the property before resorting to the impugned auction sale. Our attention had been specifically drawn to the stand of the appellant-Bank before the High Court in the counter filed (paragraph 20). Taking into account the averments made in the said affidavit, we find that the sale proclamation had mentioned a reserve price of Rs. 275 lacs and the property had been actually sold by auction at Rs. 416 lacs. That apart, the valuation report dated 14.06.2012 of the approved valuer valuing the property at Rs. 341.15 lacs has also been placed before us by way of an additional document which we are inclined to take on record. The requirements under Rule 5 and Rule 8(5) have, therefore, been complied with and the sale proclamation and the sale effected pursuant thereto cannot be invalidated on the above ground. For the aforesaid reasons, the impugned order passed by the High Court has to be set aside which we hereby do.
[41] [1955] 1 SCR 799
[42] (2011) 8 SCC 708
[43] 2014) 2 SCC 1
[44] AIR 1980 SC 633
[45] (1995) 4 SCC 104
[46] 2005 (2) SCR 302
[47] (2011) 9 SCC1
[48] AIR 2016 SC 394
[49] Ashok Kumar Alias Golu v. Union Of India And Ors 1991 SCC (3) 498
[50] The State of Punjab v. Gurdial Singh & Ors AIR 1980 SC 319
[51] (1998) 2 SCC 109,
[52] R. S. Joshi, S.T.O. Gujarat v. Ajit Mills Ltd., Ahmedabad AIR 1977 SC 2279
[53]AIR 1961 SC 459
[54] AIR 1953 SC 375

[55] [1962] 1 SCR 724
[56] AIR 1959 SC 308
[57] AIR 1980 SC 319
[58]decided on 5 November, 2015 http://judis.nic.in/supremecourt/imgs1.aspx?filename=43110
[59]Gwyer, C. J., in Subramanyam Chettiar v. Muthuswamy Goundan AIR 1941 FC 47
[60]Vishal N Kalsaria v. Bank of India & Ors.Decided on 20 January, 2016, available at http://judis.nic.in/supremecourt/imgs1.aspx?filename=43272
[61] Tinsukhia Electric Supply Co. Ltd v. State of Assam AIR 1990 SC 123
[62] vide Cooley’s Constitutional Limitations, Vol. 1, p. 379
[63] R.S. Joshi, S.T.O. v. Ajit Mills Ltd., (1977) 4 SCC 98, 108 , Naga People’s Movement of Human Rights Vs. Union of India, (1998) 2 SCC 109, 137.

Right to Sleep –The Apex Court’s Lullaby for the People!

Posted on January 4, 2013 | by Mohan Rao Bolla | Leave a Comment

(Dr.)Mohan Rao B,

Principal, Manair College of Law, Khammam

An Irish Proverb goes on to say that the beginning of health is sleep. The state of sleep has been described by Homer in the famous epic Iliad as “sleep is the twin of death”. Aristotle, the great Greek philosopher has said that all men are alike when asleep.

Sleep is an unconscious state or condition regularly and naturally assumed by man and other living beings during which the activity of the nervous system is almost or entirely suspended. It is the state of slumber and repose. It is a necessity and not a luxury. It is essential for optimal health and happiness as it directly affects the quality of the life of an individual when awake inducing his mental sharpness, emotional balance, creativity and vitality. It is believed that a person who is sleeping, is half dead. His mental faculties are in an inactive state.

Sleep is, therefore, a biological and essential ingredient of the basic necessities of life. If this sleep is disturbed, the mind gets disoriented and it disrupts the health cycle. . Sleep, therefore, is a self rejuvenating element of our life cycle and is, therefore, part and partial of human life. The state of sleeping is assumed by an individual when he is in a safe atmosphere. It is for this reason that this natural system has been inbuilt by our creator to provide relaxation to a human being. The muscles are relaxed and this cycle has a normal recurrence every night and lasts for several hours. It is so essential that even all our transport systems provide for facilities of sleep while travelling. Sleep is therefore, both, life and inherent liberty which cannot be taken away by any unscrupulous action.

Sleep is a natural process which is inherent in a human being, if disturbed obviously affects basic life. It is for this reason that if a person is deprived of sleep, the effect thereof, is treated to be torturous. Disruption of sleep has a wide range of negative effects. If disruption is brought about in odd hours preventing an individual from getting normal sleep, it also causes energy dis balance, indigestion and also affects cardiovascular health. These symptoms, therefore, make sleep so essential that its deprivation would result in mental and physical torture both. It also impairs the normal functioning and performance of an individual which is compulsory in day-to-day life of a human being. The disruption of sleep is to deprive a person of a basic priority, resulting in adverse metabolic effects. It is a medicine for weariness which if impeded would lead to disastrous results. Deprivation of sleep has tumultuous adverse effects. It causes a stir and disturbs the quiet and peace of an individual’s physical state.

To take away the right of natural rest is also therefore violation of a human right. It becomes a violation of a fundamental right when it is disturbed intentionally, unlawfully and for no justification. To arouse a person suddenly, brings about a feeling of shock and benumbness. The pressure of a sudden awakening results in almost a void of sensation. Such an action, therefore, does affect the basic life of an individual.

‘Suo Motu’ Rescue to Protect Fundamental Rights

Recalling Paster Niemoller’s statement, ‘‘when they arrested my neighbour I did not protest! when they arrested men and women in opposite houses I did not protest!! when they finally came for me there was no body left to protest….,’ we may applaud the suo moto cognizance of the Supreme Court as guarantor and savior of the fundamental rights to the people of India.

In Re-Ramlila Maidan Incident Dt . v Home Secretary, case on 4th June, 2011, Baba Ramdev’s hunger strike began with the motto of `Bhrashtachar Mitao Satyagraha. Baba Ramdev had been granted permission to hold satyagraha at Jantar Mantar, of course, with a very limited number of persons. Despite that, the crowd at the Ramlila Maidan swelled to more than fifty thousand. No yoga training was held for the entire day. At about 1.00 p.m., Baba Ramdev decided to march to Jantar Mantar for holding a dharna along with the entire gathering. Keeping in view the fact that Jantar Mantar could not accommodate such a large crowd, the permission for holding the dharna was withdrawn by the authorities.

Negotiations took place between Baba Ramdev and some of the ministers on telephone, but, Baba Ramdev revived his earlier condition of time-bound action, an ordinance to bring black money back and the items missing on his initial list of demands. At about 11.15 p.m., it is stated that Centre’s emissary reached Baba Ramdev at Ramlila Maidan with the letter assuring a law to declare black money hoarded abroad as a national asset. The messenger kept his mobile on so the Government negotiators could listen to Baba Ramdev and his aides. The conversation with Baba Ramdev convinced the Government that Baba Ramdev will not wind up his protest. At about 11.30 p.m., a team of Police, led by the Joint Commissioner of Police, met Baba Ramdev and informed him that the permission to hold the camp had been withdrawn and that he would be detained. At about 12.30 a.m., a large number of CRPF, Delhi Police force and Rapid Action Force personnel, totaling approximately to 5000 (as stated in the notes of the Amicus. However, from the record it appears to be 1200), reached the Ramlila Maidan. At that time, the protestors were peacefully sleeping.

Thereafter, at about 1.10 a.m., the Police reached the dais/platform to take Baba Ramdev out, which action was resisted by his supporters. At 1.25 a.m., Baba Ramdev jumped into the crowd from the stage and disappeared amongst his supporters. He, thereafter, climbed on the shoulders of one of his supporters, exhorting women to form a barricade around him. A scuffle between the security forces and the supporters of Baba Ramdev took place and eight rounds of teargas shells were fired. By 2.10 a.m., almost all the supporters had been driven out of the Ramlila Maidan.

The Apex Court passed the verdict after taking ‘suo motu’ cognizance of media reports showing the brutality of police action against the followers of Ramdev who were sleeping. The Court speaking through Justice Swatantar Kumar and Justice Chauhan gauged the dimensions of legal provisions in relation to the exercise of jurisdiction by the empowered officer in passing an order under Section 144 of the Code of Criminal Procedure, 1973. While appreciating that there might be a reason available to impose prohibitory orders calling upon an assembly to disperse, the Court opined that there did not appear to be any plausible reason for the police to resort to blows on a sleeping crowd and to throw them out of their encampments abruptly. The affidavits and explanation given did not disclose as to why the police could not wait till morning and provide a reasonable time to this crowd to disperse peacefully. The undue haste caused huge disarray and resulted in a catastrophe that was witnessed on Media and Television throughout the country.

According to the Court, a person cannot be presumed to be engaged in a criminal activity or an activity to disturb peace of mind when asleep. Justice Chauhan opined, ‘To presume that a person was scheming to disrupt public peace while asleep would be unjust and would be entering into the dreams of that person. ‘I am bewildered to find out as to how such declaration of the intention to impose the prohibition was affected on a sleeping crowd.’

There was no reasonable explanation for the gravity or the urgent situation requiring such an emergent action at this dark hour of midnight. Therefore, in the absence of any such justification the Court had no option but to deprecate such action and it also casts a serious doubt about the existence of the sufficiency of reasons for such action. The incident in Ram Leela Maidan incident was held ‘an example of a weird expression of the desire of a tyrannical mind to threaten peaceful life suddenly for no justification’. The Court viewed that coupled with what was understood of sleep would make it clear that the precipitate action was nothing but a clear violation of human rights and a definite violation of procedure for achieving the end of dispersing a crowd.

The Supreme Court analyzed Article 355 of the Constitution of India provides that the Government of every State would act in accordance with the provisions of the Constitution. The primary task of the State is to provide security to all citizens without violating human dignity. Powers conferred upon the statutory authorities have to be, perforce, admitted. Nonetheless, the very essence of constitutionalist is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution.

Disturbing Sleep Violates Fundamental Right

‘An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival.’ Sleep is, therefore, a fundamental and basic requirement without which the existence of life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right. It would be similar to a third degree method which at times is sought to be justified as a necessary police action to extract the truth out of an accused involved in heinous and cold- blooded crimes. It is also a device adopted during warfare where prisoners of war and those involved in espionage are subjected to treatments depriving them of normal sleep.

Can such an attempt be permitted or justified in the given circumstances of the present case? Judicially and on the strength of impartial logic, the answer has to be in the negative as a sleeping crowd cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such. The facts as uncovered and the procedural mandate having been blatantly violated, is malice in law and also the part played by the police and administration shows the outrageous behaviour which cannot be justified by law in any civilized society. For the reasons aforesaid, Dr. B.S. Chauhan concurred with the directions issued by Justice Swatantar Kumar with a forewarning to the Respondents State and the Police to prevent any repetition of such hasty and unwarranted act affecting the safe living conditions of the citizens/persons in the country.

Criticism against the Ram Leela Maidan Judgment

Delivering a lecture on “Jurisprudence of Constitutional Structure”, S.H.Kapadia, [former] the Chief Justice of India, was making an apparent reference to the recent Supreme Court judgment in the Ramlila Maidan police action against Ramdev’s supporters in which “Right to Sleep” was declared a fundamental right. The C.J. stated, ‘Now, we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore the enforceability. “Questions which judges must ask are if it is capable of being enforced. Judges must apply enforceability test. Today, if a judge proposes a policy matter, government says we are not going to follow. Are you going by way of contempt or implement it?” he asked. He also wondered what would happen if the executive refuses to comply with judiciary’s directives that may not be enforceable. “Right to life, we have said, includes environmental protection, right to live with dignity. “Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people. Objectivity, certainty enshrined in the basic principles of the Constitution has to be given weightage,” he said. Kapadia said judges should go strictly by the Constitutional principles which has clearly demarcate the separation of powers among the judiciary, the legislature and the executive.

With due respects to the Justice, the opinions must be taken as personal. The assertions that ‘Whenever you lay down a law, it should not interfere with governance. We are not accountable to people,’ -is untenable. The Court is expected to interfere even with the governance whenever there is i) violation of rule of Law, ii) an ultravires/excessive actions of the power conferred by Law, iii) the basic and fundamental human freedoms are violated and iv) the basic structures of the Constitution are deviated. The Constitutional principles envisage judicial intervention interpretative function and diligent interference for upholding the Constitution and the Rule of Law. The Courts are also accountable to people though not directly. If, judgments are given based on unscrupulous principles only to support a government in power, there would be serious consequences. [ as Justice Krishna Iyyer aptly stated ] the Court is also a Political Institution [ meant to do good to people.]

Conclusion

The judgment of the Supreme Court was indeed like a lullaby for the citizens of the country in general. The State cannot adversely affect the natural and personal freedom implicitly read by the Court to include right to sleep.

S. H. Kapadia’s criticism is redundant. The criticism is not even an ‘obiter dictum’. Therefore, fortunately, it is not binding on the Courts. As far as the enforceability of the right to sleep is concerned, with such laudable judgments, excessive State/police actions can be controlled. Pursuant to the judgment, the Police shall not resort to midnight operations akin to Dr. Karunanidhi’s arrest. Lest, the citizens should get right to remedy for such late night police operations. The ‘judicial right’ expanding the new vistas would open scope and hope for the needy and deserving indigent public would get in future, their rights realized through the judgment.

However, the Supreme Court was not ‘definitely dealing in Ram Leela Maidan Case, with the rights of homeless persons who may claim right to sleep on footpath or public premises…’ but restricted the case only to the extent as under what circumstances a sleeping person may be disturbed. The Apex Court categorically maintained that the State authorities cannot deprive a person of that right to sleep anywhere and at all times. The verdict creates a hope for many homeless pavement dwellers and reminds the governments’ responsibility to protect the right to sleep of the indigent, homeless orphans, pavement/street dwellers including the vulnerable women, adolescents, kids and the aged.

Inherent Power of Civil Court-a Hand Maid of Justice!

Posted on October 30, 2012 | by Mohan Rao Bolla | 5 Comments

Prof. Dr. Annam Subrahmanyam, and (Dr.) Mohan Rao B.,

The Code of Civil Procedure, 1908 (CPC) consolidated and amended the laws relating to the procedure of the Courts of Civil Judicature in India. All the rules of procedure are the handmaids of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing the procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. Justice is the goal of jurisprudence, processual, as much as substantive.

The Concept of inherent power vested in the Courts under Section 151 CPC is a hand maid to meet the ends of justice.

Inherent power

The expression ‘inherent’ means inbuilt, embedded, implicit or implied. The expression ‘inherent’ contemplates something latent though not directly expressed. Inherent powers are powers, which are resident in all Courts. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court’s business.

The civil courts have inherent power to do all that is necessary to meet the ends of justice. Therefore, it is a common practice for the clients to add a sweeping prayer in any petition ‘to pass such other orders necessary and expedient for the Court to meet the ends of justice’ besides praying for something expressly sought’. Almost all the petitions contain such an expression in view of the inherent power granted under Section 151 of the CPC.

Section 151 CPC

Section 151 of the CPC reads:

“Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court “.

Section 151 deals with saving of inherent powers of the Court and provides that nothing in Civil Procedure Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

Section 151 delineates that the inherent power of the Court. It enables the Court to make orders necessary i) for the ends of justice or ii) to Prevent of abuse of process of the Court and iii) there is no limitation on such inherent power under the Code. But, Section 151 of the Code has not created any new power but has preserved the power to act in the ends of justice and to prevent abuse of the processes of the court, which the courts had been exercising from before.

Judicial Interpretations

Very wide power of necessity- In Gokul Mandar v. Pudmanand Singh, it was observed that the inherent power has been preserved in order to enable the courts to deal with matters and situations which are not covered by any specific provision of the Code. It was neither practicable nor desirable to define the limits or to enumerate the circumstances in which this power can be exercised. As, however, the power is, of necessity, very wide, the courts have to be very cautious and vigilant in exercising it. It may also be safely laid down that the Court has no inherent power to override express provisions of the Code.

Alternative for ‘No other remedy’– Further, in the absence of some special circumstances which amount to abuse of the process of the Court, it cannot grant a relief in exercise of its inherent power when the ends of justice can be served by another remedy provided by the Code which is available to the party concerned. The mere fact that the procedure for following the other remedy is longer or more costly will not entitle the Court to disregard this rule because its order will not be necessary either in the ends of justice or to prevent abuse of the processes of the court.

To Advance Interests of Justice– Section 151 C.P.C. can always be exercised to advance interests of justice and the technicalities will have no place in such matters. In M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. Barabanki (U.P.) v. Kanhayalal Bhargava, the appellant contended that during the pendency of the first suit, certain subsequent events had taken place which made the first suit infructuous and in law the said suit could not be kept pending and continued solely for the purpose of continuing an interim order made in the said suit. While examining the question the Supreme Court was to consider whether the court can take cognizance of a subsequent event to decide whether the pending suit should be disposed of or kept alive. The question arose was whether, a defendant could make an application under Section 151 CPC for dismissing the pending suit on the ground the said suit had lost its cause of action. The Court answered it affirmative.

Continuation of Infructuous Suit Amounts to Abuse of the Process of the Court -The Apex Court opined that continuation of a suit which had become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court and interest of justice requires such suit should be disposed of as having become infructuous. The application under Section 151 of CPC in this regard was held maintainable. It was also held that there was nothing in Order XXXIX of the Code which expressly or by necessary implication precluded the exercise of inherent power of Court under Section 151 CPC. Accordingly, it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court.

Not to Nullify or By Pass any Provisions of the Code – Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal indicates the wide scope of Section 151 CPC where as per the majority view, in the facts and circumstances of the case, it was open to pass an injunction order under Section 151 CPC where it may not be in conflict with any provision of Order XXXIX of the Code or other provision of law. It has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code, where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. It was held that Section 10 CPC had no application and consequently, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC.

Complementary to Powers Expressly Conferred– The Supreme Court after considering its various previous judgments on the scope of Section 151 CPC, held: “The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the court.”

It was clarified that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the process of court. Pertinently, the Supreme court observed that the court exercising the power under section 151 CPC, has to consider first whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition, then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application.

Consolidation of Suits to Avoid Duplication – In Chitivalasa Jute Mills vs Jaypee Rewa Cement, the cause of action alleged in the two plaints referred to the same period and the same transactions, i.e., the supply of jute bags between the period 07.01.1992 and 31.12.1993. What is the cause of action alleged by one party as foundation for the relief prayed for and the decree sought for in one case is the ground of defense in the other case. The issues arising for decision would be substantially common. Almost the same set of oral and documentary evidence would be needed to be adduced for the purpose of determining the issues of facts and law arising for decision in the two suits before two different courts. Thus, there will be duplication of recording of evidence if separate trials are held. The two courts would be writing two judgments. The possibility that the two courts may record finding inconsistent with each other and conflicting decrees may come to be passed cannot be ruled out.

It was observed by the Apex Court that the CPC does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the CPC. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In the instant case, consolidation of suits was ordered for meeting the ends of justice as it would save the parties from multiplicity of proceedings, delay and expenses. Accordingly, complete or even substantial and sufficient similarity of the issues arising for decision in two suits would enable the two suits to be consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. This is how the Trial Court at Visakhapatnam shall proceed consequent upon this order of transfer of suit from Rewa to the Court at Visakhapatnam.

Recall Judgment /Order Obtained by Fraud– In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. , the Supreme Court after referring to Lazarus Estates observed that since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court, it also amounts to an abuse of the process of the Court. It was also held that the Courts have inherent power to set aside an order obtained, by practicing fraud upon the Court, and that where the Court was misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. The Court held:

“The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud” on Court, In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers, which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court’s business.”

No Business to Collect Evidence (Documents/Books) Forcibly -In Supreme Court Bar Association & … v. B.D. Kaushik Section 151 deals with saving of inherent powers of the Court and provides that nothing in the CPC shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. A party has full rights over its books of account. The Court has no inherent power forcibly to seize its property. If it does so, it invades the private rights of the party. Specific procedure is laid down in the Code for getting the relevant documents or books in Court for the purpose of using them as evidence. A party is free to produce such documents or books in support of its case as be relevant. A party can ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and are admitted by that party to be in its possession. If a party does not produce the documents it is lawfully called upon to produce, the Court has the power to penalize it, in accordance with the provisions of the Code. The Court has the further power to draw any presumption against such a party who does not produce the relevant document in its possession, especially after it has been summoned from it. Even in such cases where the Court summons a document from a party, the Court has not been given any power to get hold of the document forcibly from the possession of the defaulting party.

The Apex Court held that the defendants had no rights to these account books. They could not lay any claim to them. They applied for the seizure of these books because they apprehended that the plaintiff might make such entries in those account books which could go against the case they were setting up in Court. The defendants’ request really amounted to the Court’s collecting documentary evidence which the defendants considered to be in their favour at that point of time. It is no business of the Court to collect evidence for a party or even to protect the rival party from the evil consequences of making forged entries in those ac. count books. If the plaintiff does forge entries and uses forged entries as evidence in the case, the defendants would have ample opportunity to dispute those entries and to prove them forgeries.

Not Powers over the Substantive Rights – Thus, the inherent powers saved by s. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure.

In Ram Chand and Sons Sugar Mills v. Kanhayalal the Supreme Court held that the Court would not exercise the inherent power under S.151 CPC if it was inconsistent with the powers expressly or impliedly conferred by other provisions of Code. It had opined that the Court had an undoubted power to make a suitable order to prevent the abuse of the process of the Court.

In Union of India v. Ram Charan & Ors., the issue was what would be the period of limitation for making an application for setting aside the abatement. It was held that the limitation for application to set aside abatement should start from the date of death and not from the date of appellant’s knowledge of death. The said application was filed by the appellant to bring legal representatives of the respondent on record. It was further held that there is a specific provision under Order 22 Rule 9 of the CPC and recourse cannot be had to Section 151 of the Code of Civil Procedure. It was held that the Court cannot invoke its inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading legal representatives of the deceased respondent if the suit had abated on account of the appellant for not taking appropriate steps within time.

The Apex Court in M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T, has categorically maintained that the Courts had power under Section 151, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court.

Restoration of Money Suit – The earliest decision of this Court dealing with the aforesaid question of law is the case of Bahadur Pradhani v. Gopal Patel. In that case the plaint in a Money Suit was rejected for non-payment of deficit court fee within the time granted by the court. The plaintiff filed a petition under Section 151, C.P.C. for restoration of the suit in the ends of justice. The court allowed the petition and the suit was restored to file. Against the said order a revision was carried up to this court. This Court examined the scope of the inherent powers of the Court saved by Section 151 of the Code and expressed that the provisions of the Code do not control the inherent powers of the court by limiting it or otherwise affecting it. It is a power inherent in the court by virtue of its duties to do justice between the parties before it.

When there is no scope for getting any relief -It was further explained in Manoharlal v. Seth Hiralal that the provisions of the Code are not exhaustive as the legislature is incapable of contemplating all possible circumstances which may arise in future litigation. The Lordship while dealing with the applicability of Section 151 of the Code observed that although the order rejecting the plaint was a decree and was appealable, there was hardly any scope for getting any relief in the appeal, as the sufficient cause to be established for setting aside the order rejecting the plaint and for restoration of the suit can be brought to the notice of the trial court more appropriately and more effectively (by invoking the inherent power) and, therefore, Section 151 of the Code could be made applicable for providing the remedy in such a situation.

Summarized Scope of Section 151

In the very recent verdict Justice R.V. Raveendran, in K.K. Velusamy v. N. Palaanisamy the Apex Court opined that Section 151 of the Code recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’, that is to do all things necessary to secure the ends of justice and prevent abuse of its process. The Court summarized the scope of Section 151 of the CPC as follows:

(a) Not a substantive provision – Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right’ and undo what is `wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) co-extensive with circumstances -As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.

(c) Not to act inconsistent with the Code/Law- A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) complementary power – The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.

(e) Not a carte blanche- While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) Out of absolute necessity – The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

The Court in the instant case finally ruled that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under section 151 of the Code. The court ought to have also considered whether it should straightway recall the witnesses and permit the appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2).

Conclusion:

From the above analysis it may be understood that Section 151 CPC is not a substantive provision. Section 151 CPC is also not an independent provision. In the matters with which the CPC does not deal with, the Court will exercise its inherent power to meet the ends of justice utilizing the hand maid residuary power of the Court. It confers very wide power out of absolute necessity. It is not a carte blanche, but a complementary power. It is a provision supplementary to all the other provisions in the Code. It is an enabling provision but not to act inconsistent with the code/law. It can be utilized even when there is no scope for getting any relief to meet the ends of justice. There could be a recall judgment /order obtained by fraud. Stoppage of continuation of infructuous suit and consolidation of suits to avoid duplication are inter alia made possible to prevent the abuse of the process of the court. It is not meant to nullify or by pass any provisions of the Code.It can never be utilized contrary to the specific provisions of law.

Expediency suggests including a routine prayer before the Courts that the Court may be pleased to pass any order expedient/deems fit in view of the inherent power granted under Section 151. As was rightly pointed out in Rajendra Prasad Gupta v. Prakash Chandra Mishra & Ors,. if there are specific provisions of the CPC dealing with the particular issue and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked. The Kolkata High Court opined that ‘Inherent power of the Court must be exercised sparingly in exceptional cases for securing the ends of justice and not in a routine manner.’

The provision has frequently been misunderstood and various applications before the civil Courts are made under this section which does not properly fall within its purview. The two phrases used in Section 151 of the CPC viz., ‘the ends of justice’ ‘abuse of the process of the Court’ must have not been defined in the CPC. However, the Principles which regulate the exercise of inherent powers by a Court have been highlighted in many cases particularly, the recent leading decision in K.K. Velusamy v. N. Palaanisamy. The courts have been cautiously and diligently utilizing the inherent power as a hand maid of justice.

The Special Economic Zone (SEZ) Act, 2005 – Judicial Response

Posted on August 23, 2012 | by Mohan Rao Bolla | Leave a Comment

Introduction

Industrialization is considered as a must for development. It can’t be attained only by agriculture. Prof. Amartya Sen, the Nobel Laureate of India, opined that there can’t a developed country that has reached ‘there’ focusing solely on agriculture. According to the experts, for a jump in growth, industrialization is necessary. Prof. Mohd. Yunus, another Nobel Laureate, the founder of Bangla Grameen Bank, [the largest women’s Bank of Asia], remarks that Special Economic Zone (SEZ) policy is definitely sustainable for India. If India wants to command respect in the comity of nations, we must rapidly industrialize the country. India must be transformed into a powerful, modern, highly industrialized nation.

A SEZ is conceived of as an engine to economic growth of the country. It is meant to attract investment into the country. It generates foreign exchange through export of goods and services. It is expected to provide huge employment opportunities. For that the government is to provide ‘hazzle free’ environment and easy clearances besides land allotment. Asia’s first Export Processing Zone (EPZ) was established in Kandla, India in 1965. But, China has shown much advancement through SEZs. The Commerce and Industries Minister of India visited the Chinese SEZs. Consequently, the Export -Import Policy, 2000 has introduced the concept of SEZ in India.

The Special Economic Zones Act, 2005 (SEZs Act) has come into force along with its Rules w.e.f. 10th February 2006.

Objectives of the SEZs

The prime objectives of the SEZs Act are:(a) generation of additional economic activity (b) promotion of exports of goods and services;(c) promotion of investment from domestic and foreign sources;(d) creation of employment opportunities; and (e) development of infrastructure facilities. The objective of the SEZs is to make available goods and services free of taxes and duties supported by integrated infrastructure for export production, expeditious and single window approval mechanism and a package of incentives to attract foreign and domestic investments with a view to promoting exported growth. Mere allotment of land is not therefore sufficient to attain that objective. The developer has to create a whole range of infrastructure.

In the process of Liberalization Tax benefits are offered under the SEZ Act in a big way besides land allotment.

The Salient features of the Indian SEZ Initiative –

The SEZ Act offers a highly attractive fiscal incentive package, which ensures-

a) Exemption from custom duties, central excise duties, service tax, central sales taxes and securities transaction tax to both the developers and the units;

b) Tax holidays for 15 years (currently the units enjoy a seven year tax holiday), i e, 100 per cent tax exemption for 5 years, 50 per cent for the next five years, and 50 per cent of the ploughed back export profits for the next five years ; and

c) 100 per cent income tax exemption for 10 years in a block period of 15 years for SEZ developers.

The initiative further include-

a) 100 % FDI is permitted for all investments in SEZs, except for activities included in the negative list.

b) SEZ units are required to be positive net foreign-exchange earners and are not subject to any minimum value addition norms or export obligations.

c) Goods flowing into the SEZ area from a domestic tariff area (DTA) are treated as exports, while goods coming from the SEZ into a DTA are treated as imports.

In addition to the duty exemptions, the units in the Indian SEZs do not have to pay any income tax for the first 5 years and only pay half their tax liability for the next 2 years. The exemptions from service tax payable under Chapter V of the Finance Act, 1994 on taxable services provided to a developer or unit to carry on the authorized operations . The Central Government may prescribe, the manner, in which, and, the terms and conditions subject to which exemptions, concessions, drawback or other benefits can be granted to a developer or entrepreneur.

Incentives for SEZ developers

SEZ developers also enjoy a 10-year “tax holiday”. The SEZ policy also provides enterprises and developers with a favourable and attractive range of incentives.

a) the SEZ may retain 100 per cent foreign-exchange receipts in Exchange Earners’ Foreign Currency Accounts.

b) 100 per cent FDI is permitted for SEZ franchisees in providing basic telephone services in SEZs.

c) No cap on foreign investment for small-scale-sector reserved items which are otherwise restricted.

d) Exemption from industrial licensing requirements for items reserved for the small-scale-industries sector.

e) No import licence requirements.

f) Exemption from customs duties on the import of capital goods, raw materials, consumables, spares, etc.

g) Exemption from Central Excise duties on procurement of capital goods, raw materials, consumable spares, etc. from the domestic market.

h) No routine examinations by Customs for export and import cargo.

i) Facility to realize and repatriate export proceeds within 12 months.

j) Profits allowed to be repatriated without any dividend-balancing requirement.

k) Exemption from Central Sales Tax and Service Tax.

The incentives for developers of SEZs include:

a) Exemption from duties on import/procurement of goods for the development, operation and maintenance of SEZs.

b) Income tax exemption for a block of 10 years in 15 years.

c) Exemption from Service Tax

d) FDI to develop townships within SEZs with residential, educational, health-care and recreational facilities permitted on a case-by-case basis.

In Mohan Lal Sharma v. Union of India , it was observed that the Parliament has, keeping in view the international competitive environment for exports and for attracting substantial investments for promoting export-led growth, has simplified the procedure.

In Muthoot Technopolis v. The Tahazildar, Kanayannur Taluk, the Kerala High Court in a review petition has held that the Co developer in Cochin SEZ is not eligible for the benefit of exemption under the provisions of Kerala Building Tax Act. Thus, exemptions are only provided from payment of taxes, duties or Cess for almost of all the products of agriculture, coffee, Tea, Rubber, Mica, coal, marine, jute products, tobacco, Oil, Textiles, Medicinal/toilet preparations even the research and development for the units of SEZs and the Developers.

In Reliance Industries Ltd v. Designated Authority, the Apex Court has observed that the SEZs are given several relaxations of customs and other duties including anti dumping duty.

In Alabhai v. State, the State resumed nearly 1000 acres of Gauchar land [useful for cattle grazing] allotted to the Village Panchayat. It was decided to grant the land for the purpose of setting up of SEZ. The resumption and ultimate allocation of land for developing SEZ was in question before the Court. The Court while dismissing the petition recommended that the State Government shall examine whether out of wasteland available with the Government, area to the extent of Gauchar land resumed from the Panchayat, could be allotted to Zarpara Gram Panchayat.

Establishment of SEZ

Section 3 of the SEZ Act 2005 provides that SEZ may be established under the said Act, either jointly or severally by the Central Government, State Government, or any person for manufacture of goods or rendering services or for free trade and warehousing zone. Section 3(2) provides that any person, who intends to set up a SEZ, may, after identifying the area, make a proposal to the State Government concerned for that purpose

The Mohan Lal Sharma court observed that any person who intends to set up SEZ, after identifying the area is entitled to make a proposal to the State Government concerned for the purpose of setting up SEZ. On receipt of such a proposal, the State Government has to consider the question as to whether the proposal put forth was viable or not. SEZ may be established either jointly or severally by the Central Government, the State Government or any person. The validity of allotment of land for an SEZ was also in question before the High Court. The Court found that the SEZ was a public-private partnership concern, viz., M/s. Mahindra World City (Jaipur) Limited. The Government of Rajasthan was holding 26% of its share capital. The government, in lieu therefor, made available the land in question, to the SEZ. The Court found that the decision to allot the land was taken in the public interest. So also the notification issued under Section 4(1) of the Land Acquisition Act, 1894 was for public purpose. Therefore, the Court had declined to stall the development project of national public importance.

Thus, Section 3 of the SEZ Act, 2005 has opened the field wide open for any person to come forward and make a proposal for setting up the SEZ directly. The proposal may be made either to the State Government or to the Board of Approval constituted under the SEZs Act. Consequently, as many as 388 proposals of SEZs have been made within 194 days after the Act came into effect. As of December 2008, 552 SEZs have been approved by the Central government in 19 different States. Among them only 272 were notified. The Formal Approvals as on 26th February 2010 were 574 of which 350 were notified. Seven of them were of the Central Government. Twelve of them were of State governments or Private SEZs. A total number of 105 SEZs have been operational zed as at 31st December 2009. Further, over Rs.1, 76,148.41 crores have been invested in the SEZs and direct employment of the order of 6, 20,824 persons has been generated in the SEZs.

The Andhra Pradesh High Court in Parke-Davis Employees Union, v. The A.P. Industrial Infrastructure Corporation Limited, has observed that before a parcel of land is declared as a SEZ, weighty considerations are required to be bestowed by the State. Only upon the State being satisfied that it is essentially a fit case, the same is to be declared as a SEZ. The Court held that the power available under S.4 (1) has been used after careful consideration of all relevant factors.

In Sasikumar.P., s/o Madhava Menon v. State of Kerala, the question was whether possession of the minimum required extent of 25 acres of land is a condition precedent for making an application under the SEZ Act. The Kerala High Court observed that under the provisions of the SEZ Act, although minimum extent of land has been prescribed in Rule 3 of the SEZ Rules, 2006, possession of the property does not appear to be a condition precedent to make a proposal for establishing a SEZ.

In Agasthya Bio-Pharm India Ltd v. Union of India, the High Court of Kerala observed, ‘the SEZ Rules, 2006 framed by the Central Government under the provisions of the SEZ, 2005. It is seen from Chapter 2 of the said Rules, laying down the procedure for establishment of SEZ, the recommendation of the 4th respondent (Principal Secretary to Govt. of Kerala) is a necessary requirement.’ Therefore, the secretary was ordered to consider the proposal submitted by the Petitioner for the establishment of the Biotechnology Park [SEZ] and pass orders thereon in the manner as laid down in the SEZ, 2006.

In Essar Steel v. Union of India, the High Court of Gujarat held that SEZs are ‘territories within India’. Allowing a batch of writ petitions challenging the levy of export duty on goods supplied by domestic Indian units to unit situated in SEZ wherein the taxation department argued that SEZ being “deemed to be a territory outside the customs territory of India, levy of export duty on a Domestic Tariff Area unit, which supply goods into SEZ cannot be claimed to be outside the scope, authority and jurisdiction to levy export duty on a unit in Domestic Tariff Area’. The High court has observed that SEZs are a part of India. Therefore, levy of export duty on the goods supplied from DTA to SEZ was not justified.

The question before the High Court of Kerala in Girnar Industries v. CIT was whether ‘blending of tea’ is a ‘manufacturing activity’ for the purposes of SEZ Act. The Court held the definition of manufacture contained in Section 2(r) of the SEZ Act includes ‘blending’ and therefore it is manufacturing activity.

Development Commissioner

An all in one Development Commissioner has been appointed to oversee the establishment and to monitor the functioning of the SEZs at the State level. In Ahmed Ehtesham Kawkab v. The Government of India the validity of appointment of Development Commissioner under the SEZ Act was in question before the High Court of AP. It was held that the Director, Software Technology Parks of India (STPI), Hyderabad, could not be equated to an officer not below the rank of Deputy Secretary. Therefore, the appointment the Director, STPI as Development Commissioner was held invalid in the public interest litigation case. Chapter V of the SEZ Act deals with the single window clearance. Matters that itself fall within the purview of single window clearance viz., Setting up of Unit in SEZ, cancellation of letter of approval to entrepreneur, setting up and operation of Offshore Banking unit, setting up of International Financial Services center, Single application form, return etc, It also includes Agency to inspect, Single enforcement officer or agency for notified offences, Investigation inspection search or seizure. Designated Courts to try suits and notified offences, appeal to High Court, offences by companies.

In Bhavik K. Shah v. Union of India, the Petitioner was a Director of a company by the name of Technomach India Pvt.Ltd. (TIPL) which is a manufacturing unit based in the SEZ at Surat. The unit was allowed duty free import of precious metal solutions and certain jewellery making machines. The unit being based in an SEZ, the goods imported were not subject to inspection/examination by Customs and were cleared on the basis of declarations made by the unit. The unit was importing plating solutions from foreign suppliers under a claim of exemption of Customs duty under the SEZ scheme. These imports were supposed to be made for export of authorised products. Based on investigations which revealed that the Petitioner had unauthorisedly sold the duty free materials in the local market in contravention of the scheme, the Development Commissioner of the Surat SEZ suspended the letter of approval issued to the unit. The High Court of Bombay speaking through Justice D.V. Chandrachud has approved the action of the Development Commissioner.

Industrial Dispute in SEZ

In Dhabji Meghji Maheshwari and 55 others. v. Hindustan Lever Limited, the services of the petitioners were terminated in the year 2004, therefore, they raised industrial disputes under Section 2(A) of the Industrial Disputes Act, 1947. Assistant Commissioner of Labour has been authorised by the Development Commissioner to Act on their behalf all the duties and functions related to the respective Acts in so far as they related to labour and industrial operations of Kandla Special Economic Zone. The High Court while remanding the matters back to the Labour Court, Gandhidham to decide it on merits being a legal and valid references made by Assistant Commissioner of Labour after giving reasonable opportunity of hearing to both the parties as early as possible within a period of one year from the date of receiving the copy of the said order.

In view of the above case, it may be understood that the Development Commissioner might empower the Assistant Commissioner of Labour and maintain the spirit of the SEZ Act which seeks to maintain status quo relating to the implementation of the Labour Laws. As per the National Rural Labour Commission, an average agricultural worker gets 159 days of work in a year; and as per the National Sample Survey Organization (NSSO), 2005, the average daily wage of agricultural labour in rural areas is around Rs.51. Considering this, the estimated 82,000 agricultural labourers’ households will lose Rs. 67-crore in wages. And put together, the total loss of income to the farming and the farm worker families is to the tune of Rs. 212-crore a year. For the marginalized, the loss of income, even if it hovers around the poverty line has disastrous implications. After all, the small piece of land is his only economic security.

Land Acquisition for SEZs

The Supreme Court in Sagunthala (Dead) through Lrs. vs Special Tehsildar (L.A.) and Others decided on 3/1/2010 has ruled that the purpose for which land is being acquired will be one of the most important factors in determining its market value as well as award of compensation. while announcing enhancement of the compensation to the land owners from Rs 75,000/- per acre, awarded by the Madras High Court, to Rs 1,75,000/- per acre the Court noted, ‘the purpose for which the acquisition is being made is an important factor.’

An extent of 196 acres of lands were acquired for the purpose of expansion of Tamil Nadu Magnesite Limited, a State owned company. Various notifications under Section 4 (1) of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) were issued in the month of February, March and May 1984. In connection with giving compensation for that acquisition, the Land Acquisition Officer had fixed the market value at the rate of Rs.18,000/- per acre for irrigated dry land and Rs.15,000/- per acre for unirrigated dry land in Award Nos. 1 to 9 and 11 of 1986. As the claimants felt aggrieved by and dissatisfied with the awards, they asked for reference under Section 18 of the Act. The Reference Court, i.e. the Court of Subordinate Judge Salem, after considering the documentary and oral evidence, treated the lands as potential house sites and fixed the market value at Rs.1, 75, 000/- per acre.

With this judgement the apex court by implications has held that Special Economic Zone (SEZ) land is acquired for a ‘commercial purpose’ and therefore the market value of such land has to be determined accordingly. The land acquired for public purpose may have a different market value.

Land Acquisition for SEZs and the Supreme Court suggestions

In Bondu Ramaswamy v. Bangalore Development Authority case, the Supreme Court emphasized the need for revisiting the century old Land Acquisition Act. The Supreme Court held:

‘……..Our suggestions and observations are intended to draw attention of the government and development Authorities to some probable solutions to the vexed problems associated with land acquisition, existence of which can neither be denied nor disputed, and to alleviate the hardships of the land owners. It may be possible for the government and development authorities to come up with better solutions.

The Court has observed:

‘…..Where the acquisition is for industrial or business houses (for setting-up industries or special economic zones etc.), the Government should play not only the role of a land acquirer but also the role of the protector of the land-losers. As most of the agriculturists/small holders who lose their land, do not have the expertise or the capacity for a negotiated settlement, the state should act as a benevolent trustee and safeguard their interests. The Land Acquisition Collectors should also become Grievance Settlement Authorities. The various alternatives including providing employment, providing equity participation, providing annuity benefits ensuring a regular income for life, providing rehabilitation in the form of housing or new businesses, should be considered and whichever is found feasible or suitable, should be made an integral process of the scheme of such acquisitions. If the government or Development Authorities act merely as facilitators for industrial or business houses, mining companies and developers or colonisers, to acquire large extent of land ignoring the legitimate rights of land-owners, it leads to resistance, resentment and hostility towards acquisition process……’.

Constitutional validity of the SEZ Act

The Constitutional validity of the SEZ Act, has been pending consideration before the Supreme Court in Kuldeep Bishnoi v. Union of India. In the public interest litigation challenging the acquisition of cultivable land from farmers under the guise of public purpose for developing SEZs, the Supreme Court issued notices to the Union Government, States and Union Territories. Petitioner Kuldip Bishnoi’s main plank before a Bench comprising Justices K.G. Balakrishnan and D K Jain was that the Centre under Article 252 of the Constitution has taken upon itself the right to legislate on National Capital Region (NCR), comprising Delhi and areas from three states, i.e., Haryana, Rajasthan and Uttar Pradesh including agricultural land. The petitioners questioned the Constitutional validity of Sections 3 (f), 4 and 6 of the Land Acquisition Act, 1894 that authorized the governments to acquire agricultural land for ‘public purpose’ for builders, developers and industrialists denuding poor farmers and cultivators of their land and livelihood, forcing them to commit suicides. The petitioners said “economic growth is required but not by impoverishing people. That is what is happening because most displaced persons who lack the skills required for industrial jobs and other benefits are impoverished to the benefit of another class.” Several writ petitions filed before several High Courts and even the Supreme Court have been tagged to the Kuldeep Bishnoi case.

The above cases inter alia include Karnataka Landless Farmers Association v. Union of India, challenged the acquisition of cultivable land under the guise of public purpose for developing SEZs. The Constitutional validity of section 3 (f) 4 and 6 of the Land Acquisition Act 1894 that authorizes the governments from acquiring farm land for public purpose for builders developers and industrialists. They claimed that it deprived farmers and cultivators of their land and livelihood and forcing them to commit mass suicide.

It has been alleged that the SEZ Act effectively deprive workers in SEZs of the protection and equality in wages and service conditions available to workers outside SEZs’. However, it is desirable that the Supreme Court must have decided on the Constitutional validity of the SEZ Act, 2005 especially when there are as many 16 writ petitions are filed in different High Courts and before the Supreme Court itself. There is no meaning in keeping the Case pending transferring all the cases before Supreme Court and keep it undecided for years together when the first case was filed in 2006 itself.

Fears of Ministry of Defense

But, in J. K. Industries Ltd. v. Union of India the Supreme Court opined it was observed ‘In the backdrop of globalization and liberalization the world has become an economic village. Today, the capital market all over the world knows no barriers. Fiscal distances and barriers have been removed by developments in transport, communication and e-commerce. Incidentally, the Ministry of Defense has cautioned against giving clearances to Foreign Direct Investment in SEZs. It insists that a National Security Exception Clause be introduced to regulate overseas investment. It has also been made clear to Commerce Ministry that nationality of persons working in SEZs should be considered while giving clearances. In many cases, SEZ operators are bringing in staff from ‘countries of concern’ to get their projects off the ground, the sources said. Armed forces have asked the government to keep SEZs at least 10 km away from the country’s borders and 20 km from sensitive installations like airfields, radars and communication nodes for security reasons. The Defense Ministry, which is represented on the Board of Approvals, has suggested that SEZs in coastal areas should be cleared only after taking the view of the armed forces.

The Andhra Pradesh State Human Rights Commission headed by Justice B Subhashan Reddy has directed the East Godavari Collector and Superintendent of Police to consider withdrawal of all criminal prosecutions launched against the farmers in connection with the Kakinada Special Economic Zone(KSEZ) lands. In its order dated November 7, the commission directed the district administration not to view the acts of the KSEZ affected farmers during agitation, as tress passing into the acquired lands and obstructing the government officers on duty, as regular crimes under the Indian Penal Code but view the matters with compassion.

It also directed the petitioners KSEZ Vyatireka Porata Committee (Anti KSEZ Struggle Committee) and other farmers not to indulge in violence.

Conclusion

In all, the above analysis reveals that the judicial response to SEZs Act, has been substantially towards upholding the policy of the government.

The Apex Court has played its typical and active role in Bondu Ramaswamy. The Court has aptly categorized the land acquisition for SEZ as ‘commercial’ at par with the land acquisition for companies. In such cases, the Court held, the land acquisition officer shall act as a Liaison officer between the SEZ developer and the land losers. The officer shall further play the role of welfare officer in the Rehabilitation and Resettlement process. The Court has also suggested to revisit the Century old Land Acquisition law. Consequently, the government of India has taken up the reformative process through the National Advisory Committee.

But, on the other hand, in Kuldeep Bishnoi case, the Court has kept the question of Constitutional validity of the SEZ Act -still undecided. It has tagged all the writ petitions from all the High Courts by transfer to Kuldeep Bishnoi case. It was filed soon after the Act came into operation, during 2006 itself. In all, there are as many as 17 writ petitions. Keeping the cases undecided shows the Apex Courts ‘inactivism’ and rather indifferent attitude ‘inapt’ for its stature. Significantly, the pending questions relate to the Constitutional validity of the SEZ Act and the pursuant acquisition of huge land masses including cultivable land. If the Apex Court, on verification of the SEZ Act, after the lapse of so many years of the Act in operation since 2006 and find some of the provisions of SEZ Act, repugnant to the Supreme Law, the situation would be so absurd and will have far reaching consequences. Such a decision may adversely affect either the lives of the poor peasants who lost the source of livelihoods or the Companies which have had invested crores of rupees for the development of infrastructure in the processing and non processing areas of the SEZs.

The Court is expected to cut short the delay in dealing with the questions of public importance expeditiously as Justice delayed would be justice denied!

Author:

Prof. (Dr). A. Subrahmanyam,

Dr. B.R. Ambedkar, College of Law, Andhra University, Visakhapatnam

Mohan Rao B. (Principal)

Manair College of Law, Khammam, Andhra Pradesh

An overview of the Judicial Decisions on “Last Seen Together”

Posted on August 5, 2012 | by Mohan Rao Bolla | 2 Comments

^{An overview of the Judicial Decisions}

^{on ‘Last Seen Together’}

^–^{(Dr.) Mohan Rao B}^.,^{B.Sc., M.L.,[ Ph.D]}[1]

“In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents.”– Justice Krishna Iyer, V.R. [2]

One of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he is proved to be guilty.[3] Article 11(1) of the Universal Declaration of Human Rights, 1948 provides that everyone charged with a penal offence had the right to be presumed innocent until proved guilty according to law. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights.[4] India is a signatory to the Covenant.[5] Right to fair trial and presumption of innocence, are the twin essentials of administration of criminal justice. [6] Once if a person is held to be not guilty of a criminal charge, he enjoys the benefits of such presumption of innocence which could be interfered with by the Courts only for compelling reasons and not merely because another view was possible on appreciation of evidence.’[7]

The burden of proof in a criminal case lies on the State.[8] Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The policy has been that let thousand criminals be acquitted one innocent must not be punished. [9] A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.[10]

However, with the development of ‘Last seen together,’ principle, the investigation system and the courts have been a little bit relieved of the burden of proof. When the principle could be invoked, the burden of proof would be shifted to the accused to explain any intervening facts after the last seen together with the victim of any criminal offence. In this paper an attempt is made to analyze the principle inter alia with the help of the latest case law.

Circumstantial Evidence

According to Sir Alfred Wills[11] the following rules are to be specially observed relating to circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the ‘factum probandum’[fact to be proved]; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts [facts that lead to indicate guilt] must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

In Arun Bhakta @ Thulu v. State of West Bengal,[12] speaking through Dr. Arijit Pasayat, J the Court held that ‘for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or ‘factum probandum’ may be proved indirectly by means of certain inferences drawn from factum probans, i.e., the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the facts in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.’

It was opined that the presence of the accused at the place of the offence or his being seen last with the deceased were also relevant. This is sometimes referred to as the test of “last seen together” as a piece of circumstantial evidence.[13]

Last Seen Together

The theory of ‘last seen together’ is one where two persons are ‘seen together’ alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption as to the person alive being the author of death of the other can be drawn. Time gap should be such as to rule out possibility of somebody else committing the crime. Last seen together principle is one of the latest principles which is taken into consideration in establishing the guilt of the accused. In the absence of eye-witnesses and tangible evidence, it is the last resort of the prosecution in a murder case – the person last seen with the victim is presumed to be the murderer, thus, shifting the onus onto the accused to prove otherwise or come up with an alibi.[14] The foundation of the theory is based on principles of probability and cause and connection. Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends.[15]

The circumstance of ‘last seen together ‘does not by itself and necessarily lead to the inference that it was the accused who committed the crime? There must be something more establishing connectivity between the accused and the crime! There may be cases where on account of close proximity of place and time between the event of the accused having been ‘last seen’ with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.[16]

In State of Maharashtra v. Suresh, [17] the accused respondent was already an accused in another rape case of an 8 yrs. old girl and got acquitted. He went to the house of deceased Sneha @ Gangu 4 yrs. old. The deceased was then playing near the gate of her house. After the respondent left the house, no one in that house had seen Gangu alive. There was evidence that the respondent took Gangu to the shop of Mahadeo, and later to the shop of Motiram, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue for sexually ravishing that little child and smothering her to death. The spot was pointed out by the respondent [after his arrest] wherefrom the dead body of Gangu was traced out. The accused could not give any explanation whatsoever for the injuries on his private parts. The Supreme Court reversed the Lower Courts judgment and convicted the respondent basing on last seen principle as there was other circumstantial and medical evidence.

In Joseph s/o Kooveli Poulo v. State of Kerala, [18] the deceased was taken away from the convent by the appellant under a false pretext and she was last seen alive only in his company. On the information furnished by the appellant, the jewels of the deceased which were sold by the appellant, were seized. The Court had convicted the accused for the offence of murder basing on the last seen together principle but gave the benefit of doubt to the accused for the offence under S. 376 as there was no other incriminating evidence to prove the offence of rape.

In Mohibur Rahman and anr. v. State of Assam, [19] the Apex Court considered three pieces of incriminating circumstantial evidence against the main accused Taijuddin viz., i) the deceased Rahul was last seen in the company of the accused Taijuddin ii) He gave a false explanation about the whereabouts of the deceased and iii) the accused was having knowledge of the dead body cut into two pieces (meaning thereby having died an unnatural death on being subjected to deadly violence) being buried- coupled with the fact of failure on the part of the accused to offer any reasonable explanation of any of the said circumstances- to hold sufficient to fasten the liability of murder on the accused. The Court on the other hand held that merely because the other accused/appellant Mohibir was last seen with the deceased a few unascertainable number of days before the death of the deceased, he cannot be held liable for the offence of having caused the death of the deceased without any further evidence to establish the crime. Therefore, Taijuddin’s conviction was upheld and Mohibir was acquitted by the apex court.

In Jaswant Gir v. Punjab[20] the Apex Court observed that in the absence of any other links in the chain of circumstantial evidence, it was not possible to convict the appellant solely on the basis of the “last-seen” evidence.

In State of Goa v. Sanjay Thakran[21] the deceased couple arrived in Goa from Mumbai for their honeymoon and stayed in a hotel. the couple went for sight-seeing at Ozran, Vagator with P.W.13-Vincent, who was the car driver. He had also taken them for the sight-seeing trip a day earlier as well. However, in the light of the factors that evidence regarding the recovery of the incriminating materials from the accused persons has been discarded; that there has been sufficient time gap between the instances when the accused persons were last seen together with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain of circumstances to fasten the guilt on the accused couple, the Apex Court was of the opinion that the accused have been rightly given the benefit of doubt by the courts below. It is interesting to note that the State even on appeal could not prove the case as it merely based on the last seen together and the other evidence was not convincing.

In Ravindra Reddy v. Shaik Masthan and ors,[22] A1, A2 and the deceased were last seen together going on a scooter by PW 9. Later the deceased was found dead. In pursuance of A1’s confession, knives were recovered from the house of A-3 apart from seizing the Bajaj scooter from the house of A-1 and A-3. Pursuant to the confession of A-2, shirt and gold chain were recovered. There was also evidence that the accused had purchased the two knives used for the offence. The trial Court found the evidence of PW-9 to be cogent and credible and applying the principles of last seen found A-1 and A-2 guilty. The High Court acquitted the accused but the Supreme Court restored the judgment of the Trial Court as there was additional evidence besides the evidence of last seen together.

Shivaji @ Dadya Shankar Alhat v. State of Maharashtra[23] was a gruesome rape murder case of tiny young girl aged 9 yrs studying 5^th class. As the accused, [a B.A., B.Ed., teacher,] offered fuel wood, the deceased had gone with him together to the Hills. She was last seen in the company of the deceased and injury on the abdomen and the rope by which the deceased was strangulated were recovered at the instance of the accused and the fact that the accused had absconded and was arrested from a place where he was hiding and the presence of blood on his cloth was a relevant factor. The plea of alibi set up has not been established. Supreme Court speaking through Justice (Dr.) Arijit Pasayat had confirmed death penalty.

In Anil Kumar v. State Rep. by Inspector of Police[24] the Sessions Court relying primarily on the evidence of P W.2 (P W.1 having turned hostile) and P W.3 the Doctor and the recovery of the murder weapon, a knife, at the instance of the appellant, and the fact that the deceased and the appellant had been last seen together in the van, convicted the appellant. The conviction was affirmed by the High Court. But, the Apex Court held that the Lower Courts conviction could not be sustained as ‘the medical evidence far from supporting the prosecution story destroys its very substratum.’

In Sk. Yusuf v. West Bengal, [25] the Supreme Court has reiterated its observation in State of U.P. v. Satish [26] that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It was held that where there is a long time-gap between “last seen together” and the crime, and there is the possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”[27]. Even if time gap is less and there is no possibility of others intervening, it is safer to look for corroboration. [28]

Md.Mannan @ Abdul Mannan v. State of Bihar, [29] was another ghastly rape murder case of an 8 years old girl. The appellant was working as Mason in the House of Devi Kant Jha, grand- father of deceased (PW-8); He had sent the deceased Kalyani Kumari to the betel-shop to get betel. He had proceeded towards the betel-shop few minutes after the deceased left. He was last seen with the deceased going together on a bicycle. He made a confession leading to the recovery of dead body from a field. The dead body of Kalyani Kumari had injury on the private parts, her nails were munched and there were marks of bruises all over the body. The rape and murder by the appellant on the victim girl has been proved by medical evidence. The Apex Court conceded that it was the ‘rarest of the rare’ cases and confirmed the death penalty. Interestingly, the judgment of Chandramauli Kr. Prasad, J., quoted no judicial precedents at all.[30]

Rajendra Pralhadrao Wasnik v. The State of Mahrashtra, [31] was yet another brutal, gruesome rape murder case of a 3 year old girl. The accused had taken the victim Vandana from her home on the pretext of purchasing her biscuits. Neither Vandana nor the accused returned to the house. The accused was seen with the deceased at the bus stand. Thereafter, the nude body of Vandana was found in the field, the next day. The Apex Court held that on the basis of the `last seen together’ theory and other direct and circumstantial evidence, the prosecution has been able to establish its case beyond any reasonable doubt. The Court opined that the accused had committed the crime in the most brutal manner and, thereafter, he opted not to explain any circumstances and just took up the plea of false implication, which is unbelievable and unsustainable. The Court found no justifiable reason to interfere with the judgment of the High Court confirming the death penalty. Thus, the Courts have been requiring the accused to explain any intervening fact after the last seen together with the deceased whenever there was medical or other evidence corroborating with the last seen together.

In Shanmughan v. State of Kerala[32] the victim Raji was sleeping on the fateful day in the bed room with her husband- the appellant. There was evidence of mal-treatment of the deceased by the appellant. Nobody was present in the bed room where the appellant and the deceased were sleeping as husband and wife. The victim admittedly screamed at about 2 a.m. That attracted the inmates of the house to rush to the bed room to find the victim dead as a result of administering of poison. This was not in dispute. The victim died of cyanide poison which is a highly corrosive poison. The presence of lacerated wounds on the lips, contusions in the ear and abrasions in the chest clearly shew that some force was used while administering the poison. Without any force these injuries could not be there in a case of suicidal poison. The injuries were fresh injuries and cannot be sustained by fall on a hard substance. PW 7 also deposed that the injuries could be because of forcible administration of poison. At the time of his statement under Section 313 Cr.P.C also, the attention of the accused – appellant was specifically drawn by the trial court to the injuries on the deceased. To that the appellant did not give any answer. Therefore, taking all these facts and also the concurrent findings of the two courts, the Supreme Court was not inclined to interfere in the appeal. The appeal was accordingly dismissed.

In Shyamal Ghosh v. State of West Bengal,[33] there were eye-witnesses who had seen the scuffling between the deceased and the accused on demand of money and the strangulation of the deceased by the accused persons and also the loading of the mutilated body parts of the deceased contained in gunny bags into Maruti Van. Evidence establishing the ‘lastseen together’ theory and the fact that after altercation and strangulation of the deceased which was witnessed by PW8, PW17 and PW19, the body of the deceased was recovered in pieces in presence of the witnesses, have been fully established. To a very limited extent, it is a case of circumstantial evidence and the prosecution has proved the complete chain of events. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body was quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard and were therefore held liable.

In Jagroop Singh v. State of Punjab[34] the accused Jagsir Singh took the deceased Jagjit Singh @ Jagga, 10 year old boy, to accompany him for plucking flowers from the field. The boy accompanied him and did not return home. He was last seen with the accused persons; the accused had made extra-judicial confessions; the dead body of the deceased was recovered from the field of the father of the accused; the weapon used in the crime was also recovered on the basis of the confession; the report of Forensic Science Laboratory, the weapon used, spade, was found stained with human blood; and the post mortem report clearly stated that the injuries found on the body of the deceased could be caused by the seized weapon….. the accused could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. Thus, the Court convicted the accused basing on last seen principle besides other corroborating evidence.

In Kulvinder Singh & anr v. State of Haryana [35] as both the appellants had been seen immediately before the occurrence at the place of occurrence and the deceased had come there shortly thereafter, the Apex Court observed that the accused had an opportunity to kill the deceased Amardeep. After the occurrence, they were seen running together from the place of occurrence. Such a conduct, if examined, with another circumstance i.e. the extra-judicial confession made by the appellants before an independent witness [Phool Singh (PW.10)], held completed the chain of circumstances pointing to the guilt of the appellants-accused.

In the recent Arvindkumar Anupalal Poddar v. State of Maharashtra[36] case, the deceased and the accused were last seen together on 06.12.2001. Later, body of the deceased was recovered at the instance of the appellant. The recovery of knife from the place of occurrence, the frequent quarrels between the deceased and the accused, the theory of the deceased having run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps were taken by him to trace his wife, the weapon used, namely, the knife containing blood stains, that the nature of injuries found on the body of the deceased, the death was homicidal and that the injuries could have been caused with the weapon marked in the case , that the appellant wanted to flee from the town itself and that the clothes seized from the appellant were found containing human blood- established the guilt of the appellant. The Apex Court quoted Prithipal Singh & ors v. State of Punjab [37] [an illegal detention and death case] where it has been held that ‘a fact which is especially in the knowledge of any person then the burden of proving that fact is upon him and that it is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused.’ The Supreme Court has upheld the conviction of the accused.

Conclusion

By the adoption of the last seen together, there has been the tendency of the Courts, especially the Apex Court has been going perhaps towards “…..adjusting the balance of justice and ensuring that there will be no ‘excessive solicitude’ reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma.[38] Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then, break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author (Glanville Williams) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated ‘persons’ and more severe punishment of those who are found guilty…… our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents…”

Therefore, basing on the above analysis it may be stated that ‘last seen together’ principle has been applied by the Courts so cautiously that unless there is corroborating and circumstantial evidence, conviction has not been given. However, the principle helps the Courts to shift the burden of proof to the accused and the accused might establish an interface in the chain of circumstantial evidence. Otherwise, he will not get any benefit of doubt. The latest tendency of the Court thus, is to take the aid of Sections 106 of the Indian Evidence Act, in addition to the ‘last seen together’ principle to hold an accused person guilty whenever there is no evidence available. [39]

*****

[1] ^{Principal, Manair College of Law, Khammam, mohanraobolla9@gmail.com}

[2] Shivaji Sahebrao Bobade & Anr vs State of Maharashtra[2] on 27 August, 1973 1973 AIR 2622, 1974 SCR (1) 489

[3] S. Ganesan v. Rama S. Raghuraman (2011) 2 SCC 83

[4] Entry into force 23 March 1976. Quoted in Noor Aga v. State of Punjab & Anr decided on 9 July, 2008, http://indiankanoon.org/doc/1584447/

[5] See also K.G. Kannabiran,’ Safegaurd the rights of the accused and also Recommendations of the Malimath Committee on reforms of Criminal Justice System,’ http://www.pucl.org/Topics/Law/2003/malimath.htm

[6] Swatanter Kumar, J . in Govindaraju @ Govinda v. State Rep. by Sriramapuram P.S. & Anr. http://www.indiankanoon.org/doc/107929320/ (2012) 4 SCC 722

[7] Supreme Court of India A.K. Patnaik J, Swatanter Kumar, J decided on 15 March, 2012.http://www.indiankanoon.org/doc/107929320/, (2012) 4 SCC 722

[8] Shambu Nath Mehra v. The State of Ajmer, Bose, Vivian Supreme Court of India decided on 12 March, 1956 http://indiankanoon.org/doc/1032822/ , AIR 1956 SC 404, 1956 SCR 199. See also Chandrasekharan Pillai, Dr. K.N., ‘Burden of Proof in Criminal Cases and The Supreme Court— New Trends’, (2003) 8 Scc (Jour) 49.

[9] “It is better that ten guilty should escape than that one innocent person should suffer,” British philosopher John Stuart Mill (1806–1873) made this argument over a century ago in a speech before the British Parliament quoted by James Fieser ‘Capital Punishment, From Moral Issues that Divide Us’

http://www.utm.edu/staff/jfieser/class/160/7-cap-pun.htm

[10] Jagroop Singh v. State of Punjab /case decided by Supreme Court of India on 20 July, 2012, http://indiankanoon.org/doc/118148233

[11] “Wills’ Circumstantial Evidence” (Chapter VI)

[12] Supreme Court of India decided the on 5 December, 2008 http://indiankanoon.org/doc/768382/ , 2009-1-L.W. (Crl.) 573

[13] Prof. V.Nageswara Rao, opinion expressed on the Last Seen Principle at www.lawyersclubofindia.org

[14] ‘SC uses ‘last seen with’ theory to convict killer,’ Times of India, Oct 26, 2006 , Yuvaraj Ambar Mohite vs State of Maharashtra, decided by Supreme Court of India on 19 October, 2006 http://www.indiankanoon.org/doc/1160791/, [2006 (10) SCALE

[15] Delhi High Court Deepak Chadha v. State decided on 20 January, 2012, http://indiankanoon.org/doc/193001449/ Mr. Justice Pradeep Nandrajog Hon’ble Ms. Justice Pratibha Rani

[16] Mohibur Rahman and anr. v. State of Assam Case decided by Supreme Court of India on 21 August, 2002 http://www.indiankanoon.org/doc/1445643, AIR 2002 SC 3064

[17] Decided by Supreme Court of India on 10 December, 1999 http://indiankanoon.org/doc/1037935/ , 2000 (1) ALD Cri 606, JT 1999 (9) SC 513

[18] 2000(5) SCC 197

[19] R.C.Lahoti J., on 21 August, 2002, http://www.indiankanoon.org/doc/1445643, AIR 2002 SC 3064

[20] (2005) 12 SCC 438

[21] P.P. NAOLEKAR, J., http://www.indiankanoon.org/doc/585040/, 2007 (3) SCALE 740

[22] http://indiankanoon.org/doc/1071507 on 4 August, 2008, http://www.lawyerservices.in/Ravindra-Reddy-Versus-Shaik-Masthan-and-Others-2008-08-04

[23] http://indiankanoon.org/doc/1796205/, decided on 5 September, 2008, AIR 2009 SC 56

[24] Harjit Singh Bedi, and J.M. Panchal, Supreme Court of India on 4 August, 2009 http://indiankanoon.org/doc/1326224/

[25] 2011 ALL MR (Cri) 2365. (S.C.)

[26] 2005 (3) SCC 114

[27] Bodhraj v. Jammu & Kashmir2003 S.C.C. (Crim) 20: 2002 Cr.L.J. 4664

[28] Ram Reddy Rajesh Khanna Reddy v. Andhra Pradesh, [2006 (10) SCC 172] followed in Sirima Narasimha Rao v.Andhra Pradesh, 2010 Cr.L.J. 769;

[29] Chandramauli Kr. Prasad, J., Supreme Court of India, decided on 20 April, 2011, http://Indiankanoon.Org/Doc/625626/

[30] Ibid.

[31] Judgment delivered by Swatanter Kumar, J., on 29 February, 2012 http://indiankanoon.org/doc/130636232/ (2012) 4 SCC 37

[32] http://indiankanoon.org/doc/133213887/ decided by the Supreme Court of India on 19 January, 2012 Bench: Asok Kumar Ganguly, T.S. Thakur

[33] 2012 SCCL.COM 306(Case No: Criminal Appeal No(s). 507 of 2007, http://indiankanoon.org/doc/32039060/

[34] http://www.supremelaw.in/2012/07/jagroop-singh-vs-state-of-punjab.html, case decided by Supreme Court on July 20, 2012 in Criminal Appeal No. 67 of 2008, http://indiankanoon.org/doc/118148233/

[35] Dr. B.S. Chauhan, J. Supreme Court Of India Decided On 11 April, 2011 Http://Indiankanoon.Org/Doc/1797027/

[36] Fakkir Mohamed Ibrahim Kalifulla, J., Supreme Court of India decided on 26 July, 2012 http://www.indiankanoon.org/doc/60317361/

[37] 2012 (1) SCC 10. Decided by the Supreme Court on 4 November, 2011 http://www.indiankanoon.org/doc/342168/

[38] Krishnaiyer, V.R. Shivaji Sahebrao Bobade & Anr v. State of Maharashtra on 27 August, 1973 1973 AIR 2622, 1974 SCR (1) 489

[39] See Prithipal Singh & Ors v. State of Punjab 2012 (1) SCC 10. Decided by the Supreme Court on 4 November, 2011 http://www.indiankanoon.org/doc/342168/

Uniform Civil Code: The Dormant Law

Posted on July 18, 2012 | by Mohan Rao Bolla | 1 Comment

Prof. Annam Subrahmanyam and Mohan Rao, Bolla

Introduction

The High Court of Kerala in Agnes alias Kunjamol v. Regeena Thomas, has been confronted with a peculiar question of which the law has been dormant. It has, inter alia, reference to a long awaited issue of enactment of Uniform Civil Code. Despite the Constitutional mandate by Part – IV of the supreme law of the land, no state has had courage to make the law on the subject. Long ago, in the Shah Bano Case, the Apex Court has expressed its regrets that Article 44 of the Constitution has remained a dead letter. One decade after Shah Bano Case, in Sarla Mudgal v. Union of India, the Supreme Court of India, has reiterated the need for the Uniform Civil Code for India.

India has been declared more ‘secular’ through the 42nd Constitutional Amendment in 1976. Secular character was considered as one of the basic structures of the Constitution of India by the Kesavananda Bharathi Court. Alas, the plight of women in India has been continuing unabated in the male ‘chauvinistic’ society!

The Peculiar Agnes Case The story of the Agnes case hails from the most literate district of Kerala, viz., Ernakulam. There are several peculiar and interesting issues in this case. Firstly, it pertains to a ‘legal battle between a mother in law and a daughter in law’ in which the mother in law has succeeded in the lower courts. The brief facts of the Agnes case are as follows: The first plaintiff/appellant, Mrs. Agnes, was married to one Sebastian, the youngest son of the defendant. At the time of the marriage, a sum of Rs. One Lakh has allegedly been given to the defendants’ family by the first plaintiff’s family. Sebastian was also allegedly having 75% share in the Prakash Gold Covering business managed by his father. As the father was sick, the business was being run by Sebastian.

Another peculiarity of the case was that Sebastian became mentally sick and the sickness aggravated to such a stage that he had caused the death of one of his two children. He was prosecuted under Section 302 IPC but was given the benefit of Section 84 of IPC. He is undergoing treatment in a mental hospital. The other child of the first plaintiff and Sebastian, i.e., Ms. Nayana (minor) is the second plaintiff in the instant case.

After the death of the father in law, the business was run by Thomas the elder son of the defendant. The first plaintiff has been living in the ‘Tharawadu’ house (the ancestral residential house in the name of the defendant which is said to have been maintained with the One Lakh rupees brought by the first plaintiff). The defendant has been providing Rs. 1000/- per month and Thomas was giving Rs.2000/- per month for some time to the first plaintiff. Another peculiarity is that the defendants stopped giving the amounts to the Plaintiffs and strangely served eviction notice to the first plaintiff. Thus, the battle between the mother in law and the daughter in law has begun. The daughter in law replied obviously that she would be rendered homeless but the defendant and her family were not willing to provide anything for her and her daughter and were only willing to do something to Sebastian. Apprehending forceful dispossession, the suit was filed by the Plaintiff. The defendant resisted the suit.

The daughter in law claims that the amount of Rs. One lakh given by her family at the time of the marriage was utilized for the maintenance of the ‘tharawadu’ (ancestral) house. The house according to her has been orally given to her by the defendant. The defendant being a retired teacher claims that the (‘tharawadu’ house) schedule property was acquired with her own funds. She wants to evict the daughter in law (even without providing anything for her living) and sell the residential house to utilize the sale proceeds for treatment of her son Sebastian.

The Trial Court came to the conclusion that the first plaintiff was unable to establish any manner of right over the suit property and therefore, dismissed the suit. The Appellate Court too dismissed the appeal. Both the Courts found that “being a Christian there is no ‘tharawadu’ (ancestral) for the family and the first plaintiff has no manner of the right over the suit property.”

The Subordinate Status of Women

The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role. As housemakers, women’s contribution to the household economy has remained unremunerated and un accounted for. Even when women do earn, they rarely had control over their earnings. Hence in most cases, when women are compelled to leave their matrimonial house due to any reasons, they were rendered destitutes. More often then, the children became the sole responsibility of the women. Of course, S. 125 Cr.P.C, some relief to such women. But, such a state of affairs is far from satisfactory. “ The Court lamented that ‘the relief provided under section 125 Cr.P.C., is far from satisfactory.’

Justice Bhavadasan has traced the position in Common law and observed that in Common law, the husband has no right to turn his wife out of the house. She has a right to reside there and it is not possible for the husband to drive her out. The Court recalled,’ the Hindu Law has always recognized the independent status of wife. In fact, Koutilya in Arthasasthra and Manu in Manusmruthi, have dealt with the right of maintenance of the wives. Both the parties belong to Christianity and the Indian Christian Marriage Act, 1872 does not provide any property rights to the daughter in law.

However, the Court held that the principle of ‘ubi jus ibi idem remedium’ applies in this case…,”

Article 44 : The Dead Letter

As a matter of regret the Court ruled that Article 44 of our Constitution had remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The Court observed that there was no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. The Court expressed its hope that the community is likely to bell the cat by making gratuitous concessions on this issue.

The Court further reminded that ‘It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.’

The Court realized the difficulties in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecement attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. speaking through Chief Justice Y.V. Chandrachud in Mohd.Ahmed Khan v. Shah Bano Begum held as under:

“The High Court expressed wonder as to how long would it take for the Government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu Law – personal law of the Hindus – – governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country…. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacrament origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a common civil code for the whole of India.”

Comparing the two provisions viz. Arts.25 and 44 the Court analyzed that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation. …. in Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others it was opined that it was a matter of regret that Art.44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. Accordingly, ‘a common civil code will help the cause of national integration by removing the contradictions based on ideologies.’

Relief Granted

The evidence was to the effect that the first plaintiff hails from a poor family and her family will not be able to support her, if she goes to her parental house. One can only say that the position of the first plaintiff and her daughter is deplorable and precarious. The only course now open to this Court, is to let the plaintiffs continue to reside in the plaint schedule property till they are provided with another home by her husband’s family members. As already stated, the plaintiffs may not have any statutorily enforceable right in this regard. The Court finally ruled that certainly, the Plaintiff, ‘has a right to reside in the matrimonial house,’ reminding that her husband has been mentally ill and ‘one can easily understand the plight of the first plaintiff and her daughter.’

Accordingly, the appeals were allowed and in the result, the setting aside the judgments of the lower courts, the Hon’ble Court issued an ‘order of permanent prohibitory injunction against the defendant [or any one claiming under her] from dispossessing the plaintiffs from the plaint schedule property until they are provided with another suitable residence by the family members of Sebastian, her husband.’

The counter claim filed by the respondent/defendant was held dismissed. Further, the plaintiffs were held entitled to their costs throughout.

Conclusion

It may be concluded that this judgment of the Kerala High Court through the Justice P.BHAVADASAN would be an eye opener for the parliamentarians to come forward to enact a law in pursuance of Article 44 of the Constitution of India in the interest of rendering famine justice. It is sumitted that we can’t, with a sigh of relief, feel contended with the laudable judgments of the Courts like the one we are discussing about. It may be pointed out that time is ripened and it is for the legislature to enact a law for a Uniform Civil Code. It is analytically clarified in the case and the Court’s historic venture to do justice to an unfortunate Christian woman of whom the law has been silent, was so apt and appreciable.

But, the State cannot remain a mere spectator when many a Shah Bano and Agnes suffer due to lack of the statutory aid given in pursuance of Article 44 of the Constitution. By performing its duty, the State would render justice to the needy, deserving and deplorable Chiristian and Muslim (Minority) women. Hope that the parliamentarians exhibit the courage expected by the Supreme Court in Shah Bano and Sarla Mudgal cases by enacting a law in pursuance of Article 44 of the Constitution.

Federal Principle Under the Indian Constitution – A Perspective

Posted on November 23, 2010 | by Mohan Rao Bolla | 1 Comment

A constitution is the legal document in which various governing principles are established, functions and procedural aspects of the government are specified under which different organs of the government work. Constitution is the supreme law of the land which is ascertained by Kelsen as the “Grund Norm” in his Pure theory of law. American Constitution is the pioneer of all the federal constitutions followed by the Canadian and Australian constitution respectively. It may be traced that the Federal principal was adopted in the Government of India Act 1935 and the same was reinserted in the draft constitution by the Constitution Assembly

Dr. B. R. Amedkar feels it convenient to describe Indian constitution as both Federal and Unitary. He opines that it works as a federal constitution under the normal condition and as Unitary during the war or crisis. Federal Principle:The principle may be understood as ‘the method of dividing powers, so that the general and regional governments are each within a sphere of co-ordinate and independent; and not sub-ordinate to each other- Professor Wheare. The existence of co-ordinate authorities independent of each other is the gift of the federal principal where as the supreme sovereign power is vested with the only central organ which ultimately controls the state in a unitary form of government. Federalism is not static but a dynamic concept. It is always in the process of evolution and constant adjustments. It is also recognized that federalism is one of the basic features of the Constitution in Kesavananda Bharathi’s case.

Federal Features:

• There must be a written and rigid Constitution. Constitution being the supreme law of the land, it must be rigid so as to uphold its supremacy.

• Written constitution is essential if federal government is to work well.

• Distribution of powers, between the central Government and State governments is the most essential and ordained feature of a federal constitution. The distribution must be such that both the governments should exist in a co ordinate and independent in their own spheres.

• Independent and impartial judiciary is to uphold the supremacy of the constitution by interpreting the various provisions and settling the disputes between the laws made by the governments and the Constitution.

In order to be called federal it is not necessary that a Constitution should adopt federal principle completely. It is enough if the federal principle is the pre-dominant principle in the constitution. The mere presence of Unitary features in a constitution which may make the Constitution ‘quasi federal’ in law, does not prevent the Constitution from being pre-dominantly federal in practice. ( H. M. Seervai). Professor Whear described India as neither Federal nor Unitary but ‘Quasi Federal’. Indian Constitution came into existence on 26th January 1950 adopting the federal principle pre dominant. The doctrine of pre dominance as ascertained by HM Seervai does not hold good as the degree of pre dominance is negligible compared to that of other Federal Constitutions.

According to M. C Setalvad, ” the constitution of India having been drawn in mid 20th Century presents a modified form of federation suitable to the special requirements of the Indian society. ” Article 1 of the Constitution describes as a Union of States. Dr B. R. Ambedkar justifies it to be advantageous to describe India to be a union of States, though it is federal in nature. Accordingly, during the crisis it shall be Unitary in nature. Prof. Alexandrowitz says that India is supposed to have quasi federation mainly because of the articles 3, 249, 352 to 360 and 371.

It may be aptly be stated that he supports Lord Ambedkar’s view. Power to alter the boundaries: Article 3 empowers the Parliament to alter the boundaries of states even without the consent of the states which dilutes the federal principle. State of West Bengal in its memorandum submitted to the President of India compares article 3 to be a damocle sword hanging over the heads of the states. HM Seervai defends the power of the Parliament to alter the boundaries of the states that ” by extra constitutional agitations the states have forced parliament to alter the boundaries of States”

In practice, therefore the federal principle has not been violated. ” But, Seervai agrees that the power vested in the Parliament was a serious departure from the federal principle. History reveals that there has been no answer or rationale basis for such a serious departure. Distribution of powers: Distribution of powers is one of the pre requisites of a federation of states. The object for which federal state is formed involves a division of authority between the national government and the separate states- Prof. A. V. Dicey.

Parliament can legislate with respect to a matter under the State List a) in the national interest(Art. 249) or b) if a proclamation of emergency is in force (A250). The provisions resolving inconsistency between central and state laws is also weighed in favour of the centre (A251 and 254)-AG Noorani. Gwyer C. J. observed that the conferment of residuary power upon the centre has been done following the Canadian constitution. The U. S and the Australian constitutions which are the indisputably federal confer the residuary power on the states.

The non congress opposition parties conferences [held in 1986-87] resolved to demand for the conferment of residuary power on the states as a measure to strengthen the federal principle.

• Under the present provisions of our Indian Constitution the States are entitled to a share of the centers revenues derived from only a few taxes principally income tax and excise duties ( @ 45% approximately)

• Finance Commission constituted under Article 352 as the balance wheel of the Indian Federal financial relationship

• Article 365 dilutes the Federal Principle by imposing President’s Rule in the State which fails to comply with or direction of the Center. Seervai defends the power as it is open for judicial review. But it may be noted that the imposition of President’s Rule effects the independence of the States. However, practically speaking when once a democratically constituted government is de throned through such imposition of President’s Rule it is not only un- democratic but it costs burden on the exchequer of the State for conducting re-elections. The judicial review is a time consuming process and sometimes, by the time the decision is given the tenure of office of the government may expire. Therefore, conferment of such blanket power on the Center is undesirable as its effects the democratic process and dilutes the Federal Principle.

• President is competent proclaim Emergency in any part or whole of the country under Article 352 if he is satisfied that grave emergency exists. The 44th Amendment to the Constitution replaced the words, ” internal disturbance” and inserted ” armed rebellion”. The proclamation of Emergency in 1975 by the unilateral decision of the then Prime Minister of India Mrs Indira Gandhi, led to the Amendment of the Constitution and the power has been much mis used during the emergency.

• In Rajasthan v Union of India the Supreme Court has re iterated its dictum in West Bengal v. Union that the extent of Federalism is largely watered down by the needs of progress and development of the country.

• State of West Bengal submitted a memorandum suggesting certain changes in our Constitution to strengthen the Federal principle.

Parliament’s power to alter the boundaries of a state under Article 3 should be subject to the State’s approval. Residuary power under Article 248 of the Constitution should be conferred upon the States. Deletion of Article 249 and Article 356 to 360 would likely to strengthen the federal Principle.

• It is unfortunate to note that there has not been proper utilization of Article 263 of the Constitution. This is high time to re constitute the Inter State Council as an autonomous, independent and high powered. It must be entrusted with the responsibility to deal with all the issues between the center and the states. Finance Commission and Planning commission should be made independent autonomous authorities and the appointments shall be made in consultation with the States. Adequate autonomy must be facilitated to the States through the conferment of power on the States and by suitably amending Articles 3, 249 and 346 respectively. Conferment of residuary power on the States is also desirable. Governors shall be appointed by the Inter state council. Disputes if any between the Center and the States shall be expeditiously decided through constitution of Special Constitutional Benches.

Federal Principle under the Indian Constitution – a perspective – Mohan Rao B. former Principal In charge, Rajiv Gandhi Institute of Law, Kakinada [“Indian Constitution is neither Federal nor Unitary, but it is a mixer of both…” – this paper attempts to comment on the statement and to suggest measures to strengthen the Federal principle under the Indian Constitution.]

Mohan Rao Bolla, Former Principal In Charge, Rajiv Gandhi Institute of Law, Kakinada

Article Source: http://EzineArticles.com/?expert=Mohan_Rao_Bolla

Author: Mohan Rao Bolla

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[4] Entry into force 23 March 1976. Quoted in Noor Aga v. State of Punjab & Anr decided on 9 July, 2008, http://indiankanoon.org/doc/1584447/

Uniform Civil Code: The Dormant Law

Federal Principle Under the Indian Constitution – A Perspective

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