KIHOTO HOLLOHAN …PETITIONER
Vs.
ZACHILLHU AND OTHERS …RESPONDENT

DATE OF JUDGMENT: 18/02/1992

BENCH: VENKATACHALLIAH, M.N. (J) SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J) REDDY, K. JAYACHANDRA (J) AGRAWAL, S.C. (J)

CITATION: 1992 SCR (1) 686 1992 SCC Supl. (2) 651 JT 1992 (1) 600 1992 SCALE (1)338

ACT:

Constitution of India,1950:

Articles 102(2), 191(2, Tenth schedule inserted by constitution (Fifty-Second amendment) Act, 1985-Anti- defection law-Object and Constitutionality of.

Tenth Schedule-Para 2-Members of Parliament/State Legislatures-Disqualification on account of defection- whether violative of rights and freedom envisaged by article 105.

Para 2(1)(b)-expression “any direction”-Construction of-Whether whip/direction should clearly indicate that voting/abstention from voting contrary to it would incur disqualification.

Paragraph 6-Speakers/Chairmen-Power to decide disputed disqualification of a Member of a House-Nature of.

Speakers/Chairman-whether act as tribunal and satisfy requirements of independent adjudicator machinery.

`Finality’ to orders of Speakers/ Chairmen; and immunity to proceedings under para 6(1) analogous to Articles 122(1) and 212(1)-Whether excludes judicial review.

Doctrine of necessity-Applicability of.

Paragraph 7-Expression `no court shall have any jurisdiction in respect with the matter connected with disqualification of a Member of a House’-Whether bars jurisdiction of Supreme Court and High Courts under Articles 136, 226 and 227: whether required ratification envisaged by proviso to Article 368(2): whether can be severed from other provisions of Schedule.

Doctrine of severability-Applicability of.

687 Articles 122(1),212(1)-Proceedings in Parliament/State Legislature-Whether justiciable on ground of illegality or perversity.

Articles 136, 226, 227-Orders under Paragraph 6-Scope of Judicial review-Whether confined to jurisdictional errors only.

Article 368-Constitutional amendment-Amending powers- Scope,object, nature and limitations explained.

Extinction of rights and restriction of remedy for enforcement of right-Distinction between-Extinction of remedy without curtailing right-Whether makes a change in the right.

Administrative Law :

Judicial review-Statute-Finality and ouster clauses- Meaning, object and scope of.

Practice & Procedure :

Interlocutory orders-Purpose of.

Words and Phrases :

`Administration of Justice’, `Court’, `final’ and `Tribunal’meaning of.

HEADNOTE:

By the Constitution (Fifty-Second Amendment) Act, 1985 (popularly known as the Anti-defection law) the Tenth Schedule was inserted in the constitution of India providing for disqualification of a Member of either House of Parliament or of a State Legislature found to have defected from continuing as a Member of the House.

Paragraph 2 of the Tenth Schedule states that a Member of a House would incur disqualification if he voluntarily gives up his membership of the party by which he was set up as a candidate at the election, or if he without obtaining prior permission of the political party to which he belongs votes or abstains from voting in the House contrary to “any direction” issued by such political party and such voting or abstention has not been condoned by such political party within 15 days from the date of such voting or abstention;

or if a Member elected otherwise than as a candidate set up by any political party joins a political party after the 688 election; or, if a nominated Member joins any political party after expiry of six months from the date he took his seat. Paragraph 6(1) states that the question of disqualification shall be referred for decision of the chairmen/Speaker of the House and his decision shall be final. It further provides that such question in respect of Chairman/Speaker shall be referred for decision of such Member of the House as the House may elect in this behalf.

according to Paragraph 6(2) all proceedings under para 6(1) shall be deemed to be proceedings in Parliament/Legislature of a House within the meaning of Article 122/212. Paragraph 7 states that no court shall have jurisdiction in respect of any matter connected with the disqualification of a Member of a House.

A large number of petitions were filed before various High Courts as well as this Court challenging the constitutionality of the Amendment. This Court transferred to itself the petitions pending before the High Courts and heard all the matters together.

The challenge was mainly on the grounds that Paragraph 7 of the Tenth Schedule, in terms and ineffect sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution as it takes away the jurisdiction of the Supreme court under Article 136 and that of the High Courts under Articles 226 and 227 of the constitution, and,therefore,the Bill before presentation to the President for assent would require to be ratified by the legislatures of not less than one-half of the States by resolution to that effect as envisaged by the proviso to Article 368(2);

that in the absence of such a ratification the whole Amendment Bill was an abortive attempt to bring about the amendment indicated therein; that even assuming that the amendment does not attract the proviso to Article 368(2), Paragraph 7 of the Schedule is liable to be struck down as it takes away the power of judicial review; that the very concept of disqualification for defection is violative of the fundamental values and principles under-lying parliamentary democracy and violates an elective representative’s freedom of speech, right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution; that the investiture of power to adjudicate disputed defections in the Chairmen/Speakers, who being nominees of political parties are not obliged to resign their party affiliations, does not stand the test of an independent and impartial adjudicatory machinery and is, therefore, violative of the basic feature of 689 the constitution. It was also contended that the expression “any direction” in Paragraph 2(1)(b) of the Schedule might be unduly restrictive of the freedom of speech, and the right of dissent which may itself be obnoxious to and violative of constitutional ideals and values.

The respondents contended that the Tenth Schedule created a nonjusticiable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition and the exclusion of this area is constitutionally preserved by imparting a finality to the decision of the Speakers/Chairmen by deeming whole proceedings as those within Parliament/House of legislature envisaged in Articles 122 and 212 and further excluding the Court’s Jurisdiction under Paragraph 7; that no question of ouster of judicial review would at all arise inasmuch as the Speaker/chairman exercising power under Paragraph 6(1) of the Tenth Schedule function not as a statutory tribunal but as a part of state’s Legislative department; and that having regard to the political issues, the subject matter is itself not amenable to judicial power but pertains to the constitution of the House and the legislature is entitled to deal with it exclusively.

The Court on 12.11.1991 gave its operative conclusions, indicating reasons to follow and by its judgment dated 18.2.1992 gave the reasons.

On the questions whether: (1) the Tenth Schedule to the constitution inserted by the constitution (Fifty-Second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative of the fundamental principles of Parliamentary democracy and is, therefor, destructive of the basic feature of the Constitution; (2) Paragraph 7 of the Tenth Schedule in terms and in effect brings about a change in operation and effect of Articles 136,226 and 227 of the Constitution and, therefore, the Bill introducing the amendment would require ratification as envisaged by the proviso to Article 368(2); (3) the non- compliance with the proviso to Article 368(2) would render the entire Bill vitiated and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be invalidated with the application of the doctrine of severability; (4) the Tenth Schedule created a new and non- justiciable constitutional area not amenable to curial adjudicative process; and whether Paragraph 6(1) in imparting a constitutional `finality’to the decisions of Chairmen/Speakers, and paragraph 6(2) in the event of attracting immunity under Articles 122 690 and 212, bar judicial review; (5) the Chairmen/Speakers satisfy the requirements of an independent adjudicatory machinery or whether the investiture of the determinative and adjudicative jurisdiction in them under the Tenth Schedule would vitiate the provision on the ground of reasonable likelihood of bias.

Dismissing Writ Petition No.17 of 1991 and remitting Writ Petition Rule No.2421 of 1990 (subject matter of TP No.

40/91) to the High Court of Guwahati, this Court

HELD: (By the Court) (i) Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect excludes the jurisdiction of all Courts including the Supreme Court and High courts, and brings about a change in the operation and effect of Articles 136, 226 and 227 of the constitution of India, and therefore, the amendment would require ratification in accordance with the proviso to Articles 368(2) of the constitution of India.

[pp. 711F-G;714G] (ii) The finality clause in Para 6(1) of the Tenth Schedule to the Constitution is not decisive. Such finality,being for the statute alone, does not exclude extraordinary jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution.

[713E-F; 788B-C] (iii) The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under para 6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of “irregularity of procedure.” [713G; 788E-F] Per Majority (M.N. Venkatachaliah. K. Jayachandra Reddy

(i) Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defection and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. [p.712E-F] 691 (ii) There is nothing in the proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that “thereupon the Constitution shall stand amended” the operation of the proviso should not be extended to constitutional amendments in a bill which can stand by themselves without such ratification. [711G-H; 712- A-B] (iii) The Constitution (Fifty-Second Amendment) Act, 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provision which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be over borne by the proviso to Article 368(2) which cannot operate in that area.

[712B-C] (iv) Paragraph 2 of the Tenth schedule to the constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience; nor does it violate any rights or freedom under Article 105 and 194 of the Constitution. [712F-H] The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.

[712H, 713A] (v) The Tenth Schedule does not, in providing for an additional ground for disqualification and for adjudication of disputed disqualifications, seek to create a non- justiciable constitutional area. [p. 769A-B] (vi) The Speakers/Chairmen while functioning under the Tenth Schedule exercise judicial power and act as Tribunal adjudicating rights and obligations under the Tenth schedule, and their decisions in that capacity are amenable to judicial review. [713C] (vii) Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied therein does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, 692 male fides, non-compliance with Rules of Natural Justice and perversity are concerned. [713E-F] (viii) The deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Article 122(1) and 212(1) of the constitution to protect the validity of proceedings from mere irregularities of procedure and confines the scope of the fiction accordingly.

[713G-H, 714A] Spl.Ref. No.1 of 1964 (Keshav Singh’s case) [1964] INSC 209; [1965] 1 SCR 413,referred to.

(ix) Having regard to the constitutional scheme in the Tenth Schedule,judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen;

and no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

[713D-E] (x) The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.

[714B-C] Per Lalit Mohan Sharma and J.S. Verma, JJ.-contra

(i) Without ratification, as required by the mandatory special provision prescribed in the proviso to Article 368(2) of the Constitution the stage of presenting the Constitution (Fifty-Second) Amendment Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est.[715B-C]

(ii) In the absence of ratification it is not merely paragraph 7 but the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constitutional power was not exercised as prescribed in Article 368, and, therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for amendment. [715D-E] 693 (iii) Doctrine of severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368.

[715F] (iv) Doctrine of severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that Para 7 alone attracts the proviso the Article 368(2). [715G] (v) The Speaker’s decision disqualifying a Member of a House under paragraph 6(1) of the Tenth Schedule is not immune from judicial scrutiny. It is a nullity liable to be so declared and ignored. [782G] (vi) An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution. The tenure of the Speaker, who is the authority in the Tenth schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

[716B-C] (vii) Consequently, the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional. [716C-D] (viii) Accordingly, all decisions rendered by several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.

[p.716D]

Per Venkatachaliah : J.

1.1.A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances-a distinction which differentiates a statute from a Charter under which all statutes are made. [726G-H] Cooley on “Constitutional Limitation” 8th Edn. Vol.I p.129, referred to.

1.2. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment 694 are important criteria. [727B] U.S.Supreme Court in Maxwell v. Dow 44 Lawyer’s Edition 597 at p. 605, referred to.

1.3. The Tenth Schedule is a part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the other as the Constitution is one “coherent document”. In expounding the process of the fundamental law the Constitution must be treated as a logical-whole. [726D-E] 1.4. The distinction between what is constitutionally permissible and what is outside it is marked by a `hazy-gray line’and it is the Court’s duty to identify, “darken and deepen” the demarcating line of constitutionality – a task in which some element of Judges’ own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a “transitory delusion of certitude” where the “complexities of the strands in the web of constitutionality which the Judge must alone disentangle” do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications. [730D-F] “Theory of Torts” American Law Review 7[1873]; Justice Oliver Wendel Holmes-Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. p.223, referred to.

Amalgamated Society of Railway Servants v. Osborne, 1910 A.C. 87, referred to.

1.5. A political party functions on the strength of shared beliefs. Any freedom of its Members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival. Paragraph 2(1)(b) of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to “any directions” issued by the political 695 party. The provision, however, recognising two exceptions:

one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission…his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs.[734D-E; 735B-C] Griffith and Ryle on “Parliament, Functions, Practice & Procedure” 1989 Edn. page 119, referred to.

1.6. In a sense anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct- whose awkward erosion and grotesque manifestations have been the bane of the times-above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. This legislative wisdom and perception should be deferred to. The choices in constitutional adjudications quite clearly indicate the need for such deference.[739D-G] `Constitutional Reform, – Reshaping the British Political System, by Rodney Brazier. 1991 Edn.pp.48-53, referred to.

1.7.The Tenth Schedule does not impinge upon the rights or immunities under Article 105(2) of the Constitution. The freedom of speech of a Member is not an `absolute freedom.

That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any “Court” for anything said or any vote given by him in Parliament.[732H; 733C] Jyoti Basu & Ors. v.Debi Ghosal & Ors., [1982] INSC 26; [1982] 3 SCR 318, referred to.

2.1. A provision which seeks to exclude the jurisdiction of Courts is strictly construed. [742E] H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India, [1971] 1 SSC 85, referred to.

696 Mask & Co.v.Secretary of State, AIR 1940 P.C. 105, referred to.

2.2 The rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. [742F]

2.3. As regards Paragraph 7 to the Tenth Schedule, both on its language and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words “no Courts shall have any jurisdiction in respect of any matter connected with the disqualification of a member” are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The Constitution (Fifty-Second Amendment) Bill for the first time envisaged the investitute of the power to decide disputes on the Speakers or the Chairmen whereas the two similar Constitution (32nd and 48th amendment) Bills, (which had lapsed) did not contain any clause ousting the jurisdiction of the Courts. The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution. {742F-G, H, 743B]

2.4. The changes in Chapter IV of Part V and Chapter V of the Part VI of the constitution envisaged by the proviso to Article 368(2) need not be direct. The change could be either “in terms of or in effect”. It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is `in effect’a change in those provisions attracting the proviso.

[p. 745C-D] 2.5. Though the Amendment does not bring in any change directly in the language of Articles 136,226 and 227 of the constitution,, however, in effect Paragraph 7 curtails the operation of those Articles respecting matter falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368 (2). Paragraph 7, therefore, attracts the proviso and ratification was necessary. [745F] Sri Sankari Prasad Singh Deo v. Union of India & State of Bihar, [1951] INSC 45; [1952] SCR 89 Sajjan Singh v. State of Rajasthan, [1964] INSC 246; [1965] 1 SCR 933, referred to.

3.1 The criterion for determining the constitutional validity of a law is the competence of the law making authority (which would depend on the ambit of the Legislative power and the limitations imposed thereon as also on mode of exercise of the power). While examining the constitutional validity of laws the doctrine of severability is applied which envisages that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part.

[746C; 747D] Cooley’s constitutional Limitations; 8th Edn. Vol. 1, p. 359-360, referred to.

R.M.D. Chamarbaughwalla v. Union of India, [1957] INSC 32; [1957] SCR 930; Shri Kesavananda Bharti Sripadagalavaru v. State of Kerala, [1973] Supp. 1 SCR; Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1980] INSC 141; [1981] 1 SCR 206 and Sambhamurthy & Ors. etc.v. State of Andhra Pradesh & Anr., [1986] INSC 278; [1987] 1 SCR 879, referred to.

3.2. Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power may be substantive as well as procedural.

Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas from its ambit. Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power, e.g. the limitation requiring a special majority under Article 368(2) of the constitution is a procedural one. Both these limitations, however, touch and affect the constituent power itself, and impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power and would invalidate its exercise. [746C-E, 747C]

3.3. Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word `amend’, a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. [747A-B]

3.4. The proviso to Article 368(2) was introduced with a view to giving 698 effect to the federal principle. Its scope is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368(2).

[750C-D] Madras & Southern Mahratta railway company v. Bazwada Municipality, (1944) 71 I.A. 113 and Commissioner of Income Tax, Mysore v. Indo- Mercantile Bank Ltd.(1959), Supp. 2 SCR 256, referred to.

3.5. An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. [750E]

3.6. The words “the amendment shall also require to be ratified by the legislature” occurring in the proviso to Article 368(2) indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. [750G-H]

3.7. A composite amendment which makes alterations in the First and Fourth schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2), even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth schedules. [755D] Bribery Commissioner v. Pedrick Ranasinghe, 1965A.C.172, referred to.

3.8. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. [753D-E]

3.9. The principle of severability can be equally applied to a composite amendment which contains amendment in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, 699 the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid. [753E-F]

3.10. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. [753G]

3.11. The main purpose underlying the Constitutional (Fifty-Second Amendment) Act and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid, Nor can it be said that the rest of the provisions of the Tenth schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 is therefore, severable from the rest of the provisions. [pp.754A-C]

4.1. Democracy is a basic feature of the Constitution.

Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process.

That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes.

[p.733F-G] 4.2. In the Indian constitutional dispensation the power to decide a disputed disqualification of an elected Member of the House is not treated as a matter of privilege and the power to resolve such electoral dispute is clearly judicial and not legislative in nature. The power to decide disputed disqualification under Paragraph 6(1) is pre eminantly of a judicial complexion. [pp.759G.763C] Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347;

Special Reference 700 No. 1 of 1964[1964] INSC 209; , [1965] 1 SCR 413 & Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578,, referred to.

Australian Boot Trade Employees Federation v. Whybrow & Co., [1910] HCA 8; 1910 10 CLR 266, referred to.

4.3. The word “Courts” is used to designate those Tribunals which are set up in an organised State for the administration of justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish “wrongs”. Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed.

Where there is a lis an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a court. Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal.[763G-H, 764E-F, 766B] Associated Cement companies Ltd. v. P.N. Sharma and Anr., [1964] INSC 286; [1965] 2 SCR 366 and Harinagar Sugar Mills Ltd. v.Shyam Sunder Jhunjhunwala & Ors., [1961] INSC 185; [1962] 2 SCR 339, referred to.

5.1. A finality clause is not a legislative magical incantation which has the effect of telling off Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. An action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant consideration. [pp. 755D,765D-E] `Administrative Law’ 6th Edn. at p. 720 & Constitutional Fundamentals, the Harmlyn Lectures, 1989 Edn., p.88, referred to.

5.2. The finality clause with the word “final” in paragraph 6(1) of the Tenth schedule does not completely exclude the jurisdiction of the 701 Courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different. [758H, 759A,765C,758A] Brundaban Nayak v. Election Commission of India & Anr., [1965] INSC 34; [1965] 3 SCR 53; Union of India v. Jyoti Prakash Mitter, [1971] INSC 18; [1971] 3 SCR 483; Durga. Shankar Mehra v. Reghuraj Singh, [1954] INSC 68; AIR 1954 SC 520 and Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131, referred to.

5.3. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction.

[765F] Anisminic Ltd. v.Foreign commission[1968] UKHL 6; , [1969] 2 AC 147;

S.E. Asia Fire Bricks v. Non-Metallic Products, 1981 A.C.

363, referred to.

6. The fiction in Paragraph 6(2) attracts an immunity from mere irregularities of procedures. The very deeming provision implies that the proceedings of disqualification are, in fact,. not before the House; but only before the Speaker a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.

[763D-F]

7. The scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.

But Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia- timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exceptions will, however,, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the 702 proceedings and such disqualification or suspension is likely to have grave,immediate and irreversible repercussions and consequence.[768E-H] Makhan Singh v. State of Punjab, [1964] 4 SCR 797;State of Rajasthan v.Union of India[1977] INSC 145; , [1978] 1 SCR 1; Union of India v. Jyoti Prakash Mitter, (supra) and Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131, referred to.

8. The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. He is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. It would, indeed be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature . of democracy.

It is inappropriate to express distrust in the high office of the speaker, merely because some of the speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker do change and elevate the man inside. [770G-H, 771A, 772A, 773A-B] G.V. Mavalankar ; The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol. 2. No. 1 p.33;

HOP, Deb. Vol.IX (1954), CC 3447-48 and Erskine May- Parliamentary Practice -20th edition p. 234 and M.N. Kaul and S.L. Shakdher in `Practice and Procedure of Parliament’ 4th Edition, referred to.

9.1. The words “any direction” occurring in Paragraph 2(1)(b) of the Tenth Schedule require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context.

There is no justification to give the words the wider meaning. [774H, 775A-B] Parkash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab & Haryana 263, referred to.

9.2. While construing Paragraph 2(1)(b) it cannot be ignored that 703 under the Constitution members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House. The disqualification imposed by Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member.

This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. [p.

775C-D] 9.3. In view of the consequences of the disqualification, i.e., termination of the membership of a House, it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) of the Tenth Schedule is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b), so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction. [775H, 776A-B]

10.1 The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency.

[776G] 10.2. The interlocutory orders in the instant case were necessarily justified so that, no land-slide changes were allowed to occur rendering the proceedings ineffective and infructuous.[776H, 777A] Per VERMA, J. : 1.Under the Constitution of India which delineates the spheres of jurisdiction of the legislature and the judiciary,the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision, and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court’s verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the Court is seized of the matter for pronouncing its verdict and it is the constitutional 704 obligation of every person and authority to accept its binding effect when the decision is rendered by this Court.

[p. 784F-H] Cohens v. Virginia, [1821] USSC 18; 6 Wheat 264, 404[1821] USSC 18; , 5 L.Ed. 257, 291 (1821) and State of madras v. V.G. row[1952] INSC 19; , [1952] SCR 597, referred to.

2.1. The finality clause in Para 6(1) of the Tenth Schedule to the Constitution which says that the decision of the Chairman or as the case may be, the speaker of the House shall be final is not decisive. Such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity.

Sub-paragraph (1)alone is, therefore, insufficient to exclude the extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court. [788B-C] 2.2. The ambit of a legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. [788E, 789A] 2.3. The legal fiction in sub-paragraph (2) of para 6 of the Tenth Schedule serves a limited purpose and brings the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or Clause (1) of Article 212, and, therefore, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles. [788C, 789B] Commissioner of Income-tax v. Ajax Products Ltd., [1964] INSC 224; [1965] 1 SCR 700, referred to.

2.4. A matter falling within the ambit of clause (1) of either of the two Article 122 or 212 is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of “irregularity of procedure”. [788E-F] 2.5. The decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House 705 provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of clause (1) only of Article 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and therefore, justiciable to that extent. [789C-D] Spl. Ref. No. 1 of 1964 (Keshav Singh’s case) [1964] INSC 209; [1965] 1 SCR 413, 3.1. The words in Paragraph 7 of the Tenth Schedule with its non-obstante clause `notwithstanding anything in this Constitution’ followed by expression `no court shall have any jurisdiction’, are very wide and ordinarily mean that this provision supersedes any other provision in the Constitution, and leave no doubt that the bar of – jurisdiction of Courts is complete excluding also the jurisdiction of the supreme court and the High courts under Articles 136, 226 and 227 of the Constitution respectively.

Further, the expression `in respect of any matter connected with the disqualification of a Member of a House under this Schedule’ is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under paragraph 6. This conclusion is reinforced by the finality clause and deeming provision in para 6 of the Tenth Schedule and by the legislative history of the absence of such a provision excluding the Court’s jurisdiction in the earlier two Bills which had lapsed. [pp.

789F-G, 790C, H] 3.2. Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the constitutional amendment.

[799E] 4.1. Distinction has to be drawn between the abridgment or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgment of extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy.

On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that cause of 706 action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting rights. [793A-C] Sri sankari Prasad Singh Deo v. Union of India & State of Bihar, [1951] INSC 45; [1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1964] INSC 246; [1965] 1 SCR 933, explained 4.2. The instant case in unequivocal terms, is that of destroying the remedy by enacting para 7 of the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Article 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualification specified in clause (1) of Articles 102 and 191, which remedy continues to subsist.

[793D-F] 4.3. The extinction of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.

[793F] 4.4. The Constitution (Fifty-Second Amendment) Bill, therefore, attracted the proviso to Article 368(2) requiring ratification by the specified number of State legislatures before its presentation to the President for his assent.

[793G]

5.1 The proviso to Article 368(2) of the Constitution contains a constitutional limitation on the amending power;

and prescribes as a part of the special procedure, prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of the relevant Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for the assent, which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill. The Bills governed by the proviso, therefore, cannot be presented to the President for his assent without the prior ratification by the specified number of State legislatures. [795C-E] 707 5.2. The consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature by not less than one-half of the States. Non-compliance of the special procedure prescribed in Article 368(2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill. [795F-G, H,796A] Kesavananda Bharati v. State of Kerala, [1973] Supp.1 SCR, relied on.

5.3. The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part. A Bill falling within the ambit of the proviso to cl.(2) of Article 368 is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the constitution on the President’s assent without prior ratification by the specified number of State legislature. [797G-H, 798A-B] 5.4. The entire Tenth Schedule is enacted in exercise of the constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed. It is, therefore, the entire Constitution (Fifty Second) Amendment Bill and not merely para 7 of the Tenth Schedule which required prior ratification by the State of legislatures before its presentation to the President for his assent, it being a joint exercise by the parliament and the State Legislatures.

The stage of presentation of the Bill to the President for his assent not having reached, the President’s assent was non est and it could not result in amendment of the Constitution in accordance with the terms of the Bill. It is not a case of severing the invalid constituent part from the remaining ordinary legislation. [799G-H, 800A; 802C] 6.1. The doctrine of severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole. this doctrine has no application where the legislation is not validly enacted due to non-compliance 708 of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power. The doctrine does not apply to a still born legislation. It is not possible to infuse life in a still born by any miracle and deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill.

[800D-E] The Bribery Commissioner v. Pedrick Ranasinghe, [1964] UKPC 1; [1965] AC 172, referred to.

6.2. Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President’s assent and, therefore, not such severance can be made even for the ensuing result. If the President’s assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a different result with regard to the remaining part of the Bill. [800A-B]

7. The test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it, otherwise the enactment did not require the discipline of Article 368and exercise of the constituent power and mode of ordinary legislation could have been resorted to in accordance with sub-clause (e) of clause (1) of Article 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualification. [802F-H, 803A] R.M.D. Chamarbaughwalla v. The Union of India, [1957] INSC 32; [1957] SCR 930, relied on.

8.1. Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy, One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.

It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured.

[803E-G] 709 8.2. In the democratic pattern adopted by our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is contemplated by an independent authority outside the house, namely, President/Governor in accordance with the opinion of the Election commission,, all of whom are high constitutional functionaries with security of tenure, independent of the will of the House.

[803G-H, 804A] 8.3. Sub-clause (e) of clause (1) in Articles 102 and 191 which provide for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of clause (1), clearly indicates that all disqualifications of Members were contemplated within the scope of Articles 102 and 191. All disqualification including disqualification on the ground of defection, in our constitutional scheme, are, therefore, different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment; and were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary, the Election commission of India, who enjoys the security of tenure of a Supreme Court Judge with the same terms and conditions of office. [804B-E] 8.4. The Speaker’s office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of Members to the Speaker; and provision was made in Article 103 and 192 for decision of disputes by the President/Governor in accordance with the opinion of the Election commission. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution.[804-G, 805E] 8.5. The Speaker being an authority within the House and his tenure being dependent on the will of majority therein, likelihood of suspicion of 710 bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes Rule of law has in it firmly entrenched natural justice, of which, Rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are : Nemo judex in cause sua – `A Judge is disqualified from determining any case in which he may be,or may fairly be suspected to be, biased’; and `it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.

[804H, 805A-B] 8.6. It is the Vice-President of India who is ex- officio Chairman of the Rajya Sabha and his position being akin to that of the President of India, is different from that of the Speaker. The observations relating to the office of the speaker do not apply to the chairman of the Rajya Sabha, that is the Vice-President of India. [805F-G] 8.7. Since the conferment of authority is on the Speaker and the provision being unworkable for the Lok sabha and the State Legislatures, cannot be sustained, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute notwithstanding the fact that this defect would not apply to the Rajya sabha alone whose Chairman is the Vice-President of India. The statutory exception of doctrine of necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options. [805H, 806A-B] & ORIGINAL JURISDICTION: Transfer Petition (Civil) No.40 of 1991.

(Under Article 139 A(1) of the Constitution of India).

WITH
Writ Petition (Civil) No. 17 of 1991.

Soli J. Sorabjee, Vijay Hansaria and Sunil Kr. Jain for the Petitioner Ejaz Maqbool and Markand D. Adkar for the Respondents.

The Judgment of the Court was delivered by 711 (OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION) [Per VENKATACHALIAH, K, JAYACHANDRA REDDY AND AGRAWAL, JJ.].

1. The Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other connected matters raising common questions as to the constitutional validity of the constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, were heard together. Some of these matters involve investigation and determination of factual controversies and of the extent of applicability to them of the conclusions reached on the various constitutional issues. That exercise shall have to be undertaken in the individual cases separately.

The present judgment is pronounced in the Transfer Petition No. 40 of 1991 seeking the transfer of the Writ Petition, Rule No. 2421/90 on the file of the High Court of Guwahati to this Court.

2. The Transfer Petition is allowed and the aforesaid Writ Petition is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.

3. For the reasons to be set out in the detailed judgment to follow, the following are the operative conclusions in the majority opinion on the various constitutional issues:

(A) That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.

(B) That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill 712 Which do not attract and require such ratification. Having regard to the mandatory language of Article 368 (2) that “thereupon the constitution shall stand amended” the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification.

(C) That accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the union Parliament cannot be overborne by the proviso which cannot operate in that area.

There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368 (2) was not so ratified.

(D) That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part.

The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.

(E) That the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.

The provisions of Paragraph 2 do not violet any rights or freedom under Article 105 and 194 of the Constitution.

The provisions are salutory and are intended to strengthen the 713 fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.

(F) The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.

(G) The Speakers, Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjucating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the speakers/Chairmen. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

(H) That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.

(I) That the deeming provision in Paragraph 6 (2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122 (1) and 212 (1) of the Constitution as understood and explained in Keshav singh’s Case (Spl. Ref., No. 1[1964] INSC 209; , [1965] 1 SCR 413) to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings 714 in the Legislature of a State” confines the scope of the fiction accordingly.

(J) That contention that the investiture of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.

(K) In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure .

The factual controversies raised in the Writ Petition will, however, have to be decided by the High Court applying the principles declared and laid down by this judgment. The Writ Petition is, accordingly,, remitted to the High Court for such disposal in accordance with law.

(Operative conclusions in the minority opinion) [Per SHARMA AND VERMA, JJ.] For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows:

1. Para 7 of the Tenth Schedule,in clear terms and in effect excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perveristy, not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection.

2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, 715 makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution, attracting the proviso to clause (2) of Article 368.

3. In view of para 7 in the Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985 it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the Proviso to clause (2) of Article 368 for exercise of the constituent power. Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill.

4. In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the Proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.

5. Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the Proviso to clause (2) of Article 368.

6. Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.

7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty_Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.

8.Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to 716 the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution. Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Member of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore,, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

9. Consequently, the entire constitution (Fifty-Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the constitution.

10. It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.

11. On the above conclusions, it does not appear necessary or appropriate to decide the remaining question urged.

ORDER The Transfer Petition is allowed and the Writ Petition, Rule No. 2421 of 1990 on the file of the High Court of Guwahati is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.

In accordance with the majority opinion, the factual controversies raised in the Writ Petition will, however, have to be decided by the High Court Applying the principles declared and laid down by the majority. The Writ Petition is, accordingly remitted to the High Court for such disposal in accordance with law.

VENKATACHALIAH, J. In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act. 1985, is assailed. These two cases were 717 amongst a batch of Writ Petitions, Transfer Petitions, civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions which were all heard together. On 12.11.1991 we made an order pronouncing our findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule, except for Paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368 (2) of the Constitution. In the order dated 12.11.1991 our conclusions were set out and we indicated that the reasons for the conclusions would follow later. The reasons for the conclusions are now set out.

2. This order is made in Transfer Petition No. 40 of 1991 and in Writ Petition No. 17 of 1991. We have not gone into the factual controversies raised in the Writ-Petition before the Writ-Petition before the Guwahati High Court in Rule No.2421 of 1990 from which Transfer Petition No. 40 of 1991 arises. Indeed, in the order of 12th November, 1991 itself the said Writ Petition was remitted to the High Court for its disposal in accordance with law.

3. Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C.

Bhandare, Shri Kapil Sibal, Shri Sharma and shri Bhim Singh, learned counsel addressed arguments in support of the petitions. Learned Attorney-General, Shri Soli J.

Sorabjee,Shri R.K. Garg,Shri Santhosh Hegde sought to support the constitutional validity of the amendment. Shri Ram Jethmalani has attacked the validity of the amendment for the same reasons as put forward by Shri Sharma.

4. Before we proceed to record our reasons for the conclusions reached in our order dated 12th November, 1991, on the contentions raised and argued, it is necessary to have a brief look at the provisions of the Tenth Schedule.

The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says:

“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it.

With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection 718 Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.” On December 8, 1967, the Lok sabha had passed an unanimous Resolution in terms following:

“a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard.” The said Committee known as the “Committee on Defections” in its report dated January 7, 1969, inter-alia, observed:

“Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone.

Among Independents, 157 out of a total of 376 elected joined various parties in this period.

That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were:

multiple acts of defections by the same persons or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature of explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections”.

(emphasis supplied) 719 The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re-elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator. The Committee on Defections could not however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator.

Keeping in view the recommendations of the committee on Defections, the Constitution (Thirty-Second Amendment) Bill,, 1973 was introduced in the Lok Sabha on May 16, 1973.

It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eight Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection.

This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty Second Amendment) Act, 1985.

5. This brings to the fore the object underlying the provisions in the Tenth Schedule. The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.

Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under 720 Paragraph 2(1) (a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party. Under clause (b) he would incur the disqualification if he votes or abstains from voting in the House contrary to “any direction” issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining, in either case, prior permission of such political party, person or authourity and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. This sub para would also apply to a nominated member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath.

Paragraph 2(2) deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election. A nominated Member of the House would incur his disqualification under sub para (3) if he joins any political party after the expiry of six months from the date on which he takes his seat.

6. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under para 2 in cases of “split” in the original political party or merger of the original political party with another political party.

These provisions in the Tenth Schedule give recognition to the role of political parties in the political process.

A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1) (a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves and political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate. The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election.

Paragraph 2 (1) (b) deals with a slightly different situation i.e. a variant where dissent becomes defection.

If a Member while remaining a 721 Member of the political party which had set him up as a candidate at the election, votes or abstains from voting contrary to “any direction” issued by the political party to which he belongs or by any person or authority authorised by it in this behalf he incurs the disqualification. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party.

Paragraph 6 of the Tenth Schedule reads:

“6 (1) If any question arises as to whether a Member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:

Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such Member of the House as the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-Paragraph (1) of this Paragraph in relation to any question as to disqualification of a Member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.” Paragraph 7 says:

“7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule.”

7. The challenge to the constitutional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained of many grounds. It is urged that the constitutional Amendment introducing Paragraph 7 of the Tenth Schedule, in terms and in effect, seeks to make a change in Chapter IV of Part V of the Constitution in that it denudes the jurisdiction of the 722 Supreme Court under Article 136 of the Constitution of India and in Chapter V of part VI in that it takes away the jurisdiction of the High Courts under Article 226 and that, therefore, the legislative Bill, before presentation to the President for assent, would require to be ratified by the Legislature of not less than one half of the States by resolution to that effect. In view of the admitted position that no such ratification was obtained for the Bill, it is contended, the whole Amending Bill-not merely Paragraph 7- fails and the amendment merely remains an abortive attempt to bring about an amendment. It is further contended that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative’s freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution.

It is also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution, viz., Parliamentary democracy. It is contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman-who, in the India Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election-is violative of this requirement.

It is alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 368(2), then Paragraph 7 in so far as it takes away the power of judicial review, which, in itself, is one of the basic features of the Constitution is liable to be struck down.

8. There are certain other contentions which, upon a closer examination, raise issues more of construction than constitutionality. For instance, some arguments were expanded on the exact connotations of a “split” as distinct from a “defection” within the meaning of Paragraph 3. Then again, it was urged that under Paragraph 2(b) the expression “any direction” is so wide that even a direction,, which if given effect to and implemented might bring about a result which may itself be obnoxious to and violative of constitutional ideals and values would be a source of disqualification . These are,, indeed, matters of construction as to how,, in the context in which the occasion for the introduction of the Tenth Schedule arose and the high purpose it is intended to serve, the expression “any direction” occurring in Paragraph 723 2(b) is to be understood. Indeed, in one of the decisions cited before us (Prakash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab and Haryana 263) this aspect has been considered by the High Court. The decision was relied upon before us. We shall examine it presently.

9. Supporting the constitutionality of the Amendment, respondents urge that the Tenth Schedule creates a non- justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition. New rights and obligations are created for the first time uno-flatu by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes. These rights, obligations and remedies, it is urged, which are in their very nature and innate complexities are in political thickets and are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the exclusion of this area is constitutionally preserved by imparting a finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the House of Legislature of the States envisaged in Articles 122 and 212, respectively, and further by expressly excluding the Courts’ jurisdiction under Paragraph 7.

Indeed, in constitutional and legal theory, it is urged,, there is really no ouster of jurisdiction of Courts or of Judicial Review as the subject-matter itself by its inherent character and complexities is not amenable to but outside judicial power and that the ouster of jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non-amenability of the subject-matter to the judicial power of the State, the corollary of which is that the Speaker or the Chairman,, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a statutory Tribunal but as a part of the State’s Legislative Department.

It is, therefore, urged that no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place, having regard to the political nature of the issues, the subject-matter is itself not amenable to judicial power. It is urged that the question in the last analyses pertains to the constitution of the House and the Legislature is entitled to deal with it exclusively.

10. It is further urged that Judicial Review – apart from Judicial Review of the legislation as inherent under a written constitution -is 724 merely a branch of administrative law remedies and is by no means a basic feature of the Constitution and that, therefore, Paragraph 7, being a constitutional provision cannot be invalidated on some general doctrine not found in the Constitution itself.

11. On the contentions raised and urged at the hearing the questions that fall for consideration are the following:

(A) The Constitution (Fifty-Second Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the constitution as it is violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions of the Tenth Schedule seek to penalise and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy.

(B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Article 136,, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent.

(C) In view of the admitted non-compliance with proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment.

Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid.

(D) That even if the effect of non-ratification by the legislature 725 of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non- severability. Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional Amendments.

Even otherwise, having regard to legislative intent and scheme of the Tenth Schedule, the other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core.

(E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court.

The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to , but constitutionally immune from curial adjudicative processes.

(F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts’ jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional `finality’to the decision of the Speaker or the Chairman, as the case may be, and that such concept of `finality’ bars examination of the matter by the Courts.

(G) The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes. The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery.

The investiture of the determinative and adjudicative jurisdiction 726 in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman.

(H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the constitution.

12. Re: Contention(A):

(The Tenth Schedule is part of the constitution and attracts the same cannons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one “coherent document”.

Learned counsel for the petitioners accordingly say that Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain essential incidents of democracy, it is urged, cannot co- exist.

In expounding the processes of the fundamental law, the Constitution must be treated as a logical-whole. Westel Woodbury Willoughby in the “Constitutional Law of the United States” states:

“The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore,, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts.” [2nd Edn. Vol.1 page 65] A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances – a distinction which differentiates a statue from a Charter under which all statutes are made. Cooley on “Constitutional Limitations” says:

727 “Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly.” [8th Edn. Vol. 1 page 129]

13. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria. The observations of the U.S. Supreme Court in Maxwell v. Dow (44 lawyer’s Edition 597 at page 605) are worthy of note:

“….to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen and then to construe it,, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted…..” The report of the Committee on Defections took note of the unprincipled and unethical defections induced by considerations of personal gains said:

“….What was most heartening was the feeling of deep concern over these unhealthy developments in national life on the part of the leaders of political parties themselves. Parliament mirrored this widespread concern……” [page 1]

14. It was strenuously contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a flagrant violation of those fundamental principles and values which are basic to the sustenance of the very system of Parliamentary democracy. The Tenth Schedule, it is urged, negates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience. It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted. The Tenth Schedule, they say, seeks to throw away the baby with the bath-water. Learned counsel argue that “crossing the floor”, as it has come to be called, mirrors the meanderings of a troubled conscience on issues of political 728 morality and to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain. Learned counsel referred to the famous speech to the Electors of Bristol, 1774, where Edmund Burke reportedly said:

“It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention.

It is his duty to sacrifice his repose, his pleasures, his satisfactions to theirs -and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living…. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” [see: Parliament Functions, Practice & Procedures by JAG Griffith and Michael Ryle 1989 Edn. page 70]

15. Shri Jethmalani and Shri sharma also relied upon certain observations of Lord Shaw in Amalgamated Society or Railway Servants v. Osborne, [1910 A.C. 87] to contend that a provision which seeks to attach a liability of disqualification of an elected Member for freely expressing his views on matters of conscience, faith and political belief are indeed restraints on the freedom of speech – restraints opposed to public policy. In that case a registered trade union framed a rule enabling it to levy contributions on the Members to support its efforts to obtain Parliamentary representation by setting up candidates at elections. It also framed a rule requiring all such candidates to sign and accept the conditions of the Labour Party and be subject to its whip. The observations in the case relied upon by learned counsel are those of Lord Shaw of Dunfermline who observed:

“Take the testing instance: should his view as to right and wrong on a public issue as to the true line of service to the realm, as to the real interests of the constituency which has elected him, or even of the society which pays him, differ from the decision of the parliamentary party and the maintenance by it of its 729 policy, he has come under a contract to place his vote and action into subjection not to his own convictions, but to their decisions. My Lords, I do not think that such a subjection is compatible either with the spirit of our parliamentary constitution or with that independence and freedom which have hither-to been held to lie at the basis of representative government in the United Kingdom.” [page 111] “For the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end but that they might always be freely chosen, and so chosen freely act and advise, as the necessity of the commonwealth and the public good should upon examination and mature debate be judged to require…..” [page 113] “Still further, in regard to the Members of Parliament himself, he too is to be free; he is not to be the paid mandatory of any man, or organization of men, nor is he entitled to bind himself to subordinate his opinions on public questions to others, for wages, or at the peril of pecuniary loss; and any contract of this character would not be recognized by a Court of law, either for its enforcement or in respect of its breach…” [page 115] It is relevant to observe here that the rule impugned in that case was struck down by the Court of Appeal – whose decision was upheld by the House of Lords – on grounds of the Society’s competence to make the rule. It was held that the rule was beyond its powers. Lord Shaw, however, was of the view that the impugned rule was opposed to those principles of public policy essential to the working of a representative government. The view expressed by Lord Shaw was not the decision of the House of Lords in the case.

But, the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a 730 legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements?

16. The points raised in the petitions are, indeed, far-reaching and of no small importance – invoking the `sense of relevance of constitutionally stated principles to unfamiliar settings’. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behavior conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. there is the legislative determination through experimental constitutional processes to combat that evil.

On the other hand, there are, as in all political and economic experimentations, certain side-effects and fall- out which might affect and hurt even honest dissenters and conscientious objectors. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a `hazy gray-line’ and it is the Court’s duty to identify, ” darken and deepen” the demarcating line of constitutionality — a task in which some element of Judges’ own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a “transitory delusion of certitude” where the “complexities of the strands in the web of constitutionality which the Judge must alone disentangle” do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications.

17. All distinctions of law – even Constitutional law – are, in the ultimate analyses, “matters of degree”. At what line the `white’ fades into the `black’ is essentially a legislatively perceived demarcation.

In his work “Oliver Wendell Holmes – Free Speech and the Living Constitution” (1991 Edition: New York University Publication) Pohlman says:

“All distinctions of law, as Holmes never tired of saying, were 731 therefore “matters of degree.” Even in the case of constitutional adjudication, in which the issue was whether a particular exercise of power was within or without the legislature’s authority, the judge’s decision “will depend on a judgment or intuition more subtle than any articulate major premise.” As the particular exertion of legislative power approached the hazy gray line separating individual rights from legislative powers, the judge’s assessment of constitutionality became a subtle value judgment. The judge’s decision was therefore not deductive, formal, or conceptual in any sense.

[page 217] [emphasis supplied] Justice Holmes himself had said:

“Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace;

the determinations are made one way or the other on a very slight preponderance of feeling, rather than articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other.” [Emphasis supplied] [See: “Theory of Torts” American Law Review 7 (1873) The argument that the constitutional remedies against the immorality and unprincipled chameleon-like changes of political hues in pursuit of power and pelf suffer from something violative of some basic feature of the Constitution, perhaps, ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs. The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience. The onslaughts on their sensibilities 732 by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worth-while faith. This is prominently an area where Judges should defer to legislative perception of and reaction to the pervasive dangers of unprincipled defections to protect the community. “Legislation may begin where an evil begins”. Referring to the judicial philosophy of Justice Holmes in such areas, Pohlman again says:

“A number of Holmes’s famous aphorisms point in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community. He had, for example, no “practical” criterion to go on except “what the crowd wanted.” He suggested, in a humorous vein that his epitaph……………..No judge ought to interpret a provision of the Constitution in a way that would prevent the American people from doing what it really wanted to do. If the general consensus was that a certain condition was an “evil” that ought to be corrected by certain means, then the government had the power to do it: “Legislation may begin where an evil begins”; “Constitutional law like other mortal contrivances has to take some chances.” “Some play must be allowed to the joints if the machine is to work.” All of these rhetorical flourishes suggest that Holmes deferred to the legislature if and when he thought it accurately mirrored the abiding beliefs, interests, and values of the american public.” (emphasis supplied) [See: Justice Oliver Wendell Holmes -Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. page 233]

18. Shri Sharma contends that the rights and immunities under Article 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental-right in Article 19(1)(a), have violated the Tenth Schedule. There are at least two objections to the acceptability of this contention. The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2). Article 105(2) of the Constitution provides:

“105. Powers, privileges, etc., of the Houses of Parliament and 733 of the Members and committees thereof.- (1)……..

(2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any `Court’ for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing.

Secondly, on the nature and character of electoral rights this Court in Jyoti Basu & Ors. v. Debi Ghosal & 3 S.C.R. 318 observed:

“A right to elect, fundamental though it is to a democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.’ [Page 326] Democracy is a basic feature of the constitution.

Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as lone as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the constitution. So is the need to protect and sustain the purity of the electoral process.

That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes. From that it does not necessarily follow that the rights and immunities under sub-article (2) of Article 105 of the Constitution, are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article 734 105 (2) as urged by Shri Sharma.

19.Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefor, the means and essence of the democratic process. During the debates the Members put forward different points of view.

Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration.

Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstenance from voting in the House otherwise than on party lines.

But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance – nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon,in political tradition, as a desirable state of things.

Griffith and Ryle on “Parliament, Functions, Practice & Procedure” (1989 Edn. page 119) say:

“Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge.

Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy.

To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention 735 or voting with the other side smacks of conspiracy.” (emphasis supplied) Clause (b) of sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to “any directions” Issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression “Any Direction” in clause (b) of Paragraph 2(1) whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extra-ordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately.

20. The working of the modern Parliamentary democracy is complex. The area of the inter-se relationship between the electoral constituencies and their elected representatives has many complex features and overtones.

The citizen as the electorate is said to be the political sovereign. As long as regular general elections occur, the electorate remains the arbiter of the ultimate composition of the representative legislative body to which the Government of the day is responsible. There are, of course,, larger issues of theoretical and philosophical objections to the legitimacy of a representative Government which might achieve a majority of the seats but obtains only minority of the electoral votes. It is said that even in England this has been the phenomenon in every general elections in this century except the four in the years 1900, 1918, 1931 and 1935.

But in the area of the inter-relationship between the constituency and its elected representative, it is the avowed endeavour of the latter to requite the expectations of his voters. Occasionally, this might conflict with his political obligations to the political party sponsoring him which expects– 736 and exacts in its own way – loyalty to it. This duality of capacity and functions are referred to by a learned author thus:

“The functions of Members are of two kinds and flow from the working of representative government.

When a voter at a general election, in that hiatus between parliaments, puts his cross against the name of the candidate he is [most often] consciously performing two functions: seeking to return a particular person to the house of commons as Member for that constituency; and seeking to return to power as the government of the country a group of individuals of the same party as that particular person. The voter votes for a representative and for a government. He may know that the candidate he votes has little chance of being elected………..” “When a candidate is elected as a Member of the House of Commons, he reflects those two functions of the voter. Whatever other part he may play, he will be a constituency M.P. As such, his job will be to help his constituents as individuals in their dealings with the departments of State. He must listen to their grievances and often seek to persuade those in authority to provide remedies.

He must have no regard to the political leanings of his constituents for the represents those who voted against him or who did not vote at all as much as those who voted for him. Even if he strongly disagrees with their complaint he may still seek to represent it, though the degree of enthusiasm with which he does so is likely to be less great.” [See: Parliament – Function. Practice and Procedures by JAG Griffith and Ryle – 1989 Edn.

page 69] So far as his own personal views on freedom of conscience are concerned,, there may be exceptional occasions when the elected representative finds himself compelled to consider more closely how he should act.

Referring to these dilemmas the authors say:

“….The first is that he may feel that the policy of his party whether it is in office or in opposition, on a particular matter is not one of which he approves. He may think this because of his personal opinions or because of its special consequences 737 for his constituents or outside interests or because it reflects a general position within the party with which he cannot agree. On many occasions, he may support the party despite his disapproval. But occasionally the strength of his feeling will be such that he is obliged to express his opposition either by speaking or by abstaining on a vote or even by voting with the other side.

Such opposition will not pass unnoticed and, unless the matter is clearly one of conscience, he will not be popular with the party whips.

The second complication is caused by a special aspect of parliamentary conduct which not frequently transcends party lines. Members, who are neither Ministers nor front-bench Opposition spokesmen, do regard as an important part of their function the general scrutiny of Governmental activity. This is particularly the role of select committees which have, as we shall see, gained new prominence since 1979. No doubt, it is superficially paradoxical to see Members on the Government side of the House joining in detailed criticism of the administration and yet voting to maintain that Government in office. But as one prominent critic of government has said, there is nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same time as scrutinising the work of the executive in order both to improve it and to see that power is being exercised in a proper and legitimate fashion.” [page 69 and 70] Speaking of the claims of the political party on its elected Member Rodney Brazier says:

“Once returned to the House of Commons the Member’s party expects him to be loyal. This is not entirely unfair or improper, for it is the price of the party’s label which secured his election. But the question is whether the balance of a Member’s obligations has tilted too far in favour of the requirements of party. The nonsense that a Whip– even a three-line whip–is no more than a summons to attend the House, and that, once there, the Member is completely free to speak and vote as he thinks fit, was 738 still being put about, by the Parliamentary Private Secretary to the Prime Minister, as recently as 1986. No one can honestly believe that. Failure to vote with his party on a three-line whip without permission invites a party reaction. This will range (depending on the circumstances and whether the offence is repeated) from a quiet word from a Whip and appeals to future loyalty, to a ticking- off or a formal reprimand (perhaps from the Chief Whip himself), to any one of a number of threats.

The armoury of intimidation includes the menaces that the Member will never get ministerial office, or go on overseas trips sponsored by the party, or be nominated by his party for Commons Committee Memberships, or that he might be deprived of his party’s whip in the House, or that he might be reported to his constituency which might wish to consider his behaviour when reselection comes round again…..Does the Member not enjoy the Parliamentary privilege of freedom of speech? How can his speech be free in the face of such party threats? The answer to the inquiring citizen is that the whip system is part of the conventionally established machinery of political organisation in the house, and has been ruled not to infringe a Member’s parliamentary privilege in any way. The political parties are only too aware of utility of such a system,, and would fight in the last ditch to keep it.” [See; Constitutional Reform – Reshaping the British Political System by Rodney Brazier, 1991 Edn. pages 48 and 49] The learned author, referring to cases in which an elected Member is seriously unrepresentative of the general constituency opinion, or whose personal behaviour falls below standards acceptable to his constituents commends that what is needed is some additional device to ensure that a Member pays heed to constituents’ views. Brazier speaks of the efficacy of device where the constituency can recall its representative. Brazier says:

“What sort of conduct might attract the operation of the recall power? First, a Member might have misused his Membership of the House, for example to further his personal financial interests in a manner offensive to his constituents. They might consider that the action taken against him by the house (or, indeed, lack 739 of action) was inadequate…….Thirdly, the use of a recall power might be particularly apt when a member changed his party but declined to resign his seats and fight an immediate by-election. It is not unreasonable to expect a Member who crosses the floor of the House, or who joins a new party, to resubmit himself quickly to the electors who had returned him in different colours. Of course, in all those three areas of controversial conduct the ordinary process of reselection might well result in the Member being dropped as his party’s candidate (and obviously would definitely have that result in the third case). But that could only occur when the time for reselection came; and in any event the constituency would still have the Member representing them until the next general election. A cleaner and more timely parting of the ways would be preferable. Sometimes a suspended sentence does not meet the case.” [page 52 and 53] Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct– whose awkward erosion and grotesque manifestations have been the base of the times – above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation.

We should, we think, defer to this legislative wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. “Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end…” are constitutional. [See Kazurbach v. Morgan: [1966] USSC 120; 384 US 641].

21. It was then urged by Shri Jethmalani that the distinction between the conception of “defection” and “split” in the Tenth Schedule is so thin and artificial that the differences on which the distinction rests are indeed 740 an outrageous defiance of logic. Shri Jethmalani urged that if floor-crossing by one Member is an evil, then a collective perpetration of it by 1/3rd of the elected Members of a party is no better and should be regarded as an aggravated evil both logically and from the part of its aggravated consequences. But the Tenth Schedule, says Shri Jethmalani, employs its own inverse ratiocination and perverse logic to declare that where such evil is perpetrated collectively by an artificially classified group of not less than 1/3rd Members of that political party that would not be a “defection” but a permissible “split” or “merger”.

This exercise to so hold-up the provision as such crass imperfection is performed by Shri Jethmalani with his wonted forensic skill. But we are afraid what was so attractively articulated, on closer examination, is, perhaps, more attractive than sound. The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed.

Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality. At the same time legislature evisaged the need to provide for such “floor-crossing” on the basis of honest dissent. That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bonafide. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between `defection’ and `split’.

Where is the line to be drawn? What number can be said to generate a presumption of bonafides ? Here again the Courts have nothing else to go by except the legislative wisdom and, again, as Justice Holmes said, the Court has no practical criterion to go by except “what the crowd wanted”.

We find no substance in the attack on the statutory distinction between “defection” and “split”.

Accordingly we hold:

“that the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of 741 speech, freedom of vote and conscience as contended.

The Provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution.

The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.

The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.” 22. Re: Contention (B):

The thrust of the point is that Paragraph 7 brings about a change in the provisions of chapter IV of Part V and chapter V of Part VI of the Constitution and that, therefore, the amending Bill falls within proviso to Article 368 (2). We might, at the outset, notice Shri Sibal’s submission on a point of construction of Paragraph 7. Shri Sibal urged that Paragraph 7, properly construed, does not seek to oust the jurisdiction of courts under Articles, 136, 226 and 227 but merely prevents an interlocutory intervention or a quia-timet action. He urged that the words “in respect of any matters connected with the disqualification of a Member” seek to bar jurisdiction only till the matter is finally decided by the speaker or Chairman, as the case may be, and does not extend beyond that stage and that in dealing with the dimensions of exclusion of the exercise of judicial power the broad considerations are that provisions which seek to exclude Courts’ jurisdiction shall be strictly construed. Any construction which results in denying the Courts’ it, it is urged, not favoured. Shri Sibhal relied upon the following observations of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors: v. Union of India, [1970] INSC 253; [1971] 1 SCC 85:

“…The proper forum under our Constitution for determining a legal dispute is the Court which is by training and experience, assisted by properly qualified advocates, fitted to perform that task.

A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party 742 of the normal remedy will be strictly construed, for it is a principle not to be whittled down that an aggrieved party will not, unless the jurisdiction of the Courts is by clear enactment or necessary implication barred, be denied his right to seek recourse to the Courts for determination of his rights……….”.

“The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain and unambiguous. A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. In an avowedly democratic polity, statutory provisions ensuring the security of fundamental human rights including the right to property will, unless the contrary mandate be precise and unqualified, be construed liberally so as to uphold the right.

These rules apply to the interpretation of constitutional and statutory provisions alike.” [page 94-95] It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed. See also, Mask & Co., v. Secretary of State, AIR 1940 P.C. 105.

But the rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. But, here both on the language of paragraph 7 and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words “no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member” are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The deliberate and purposed presence of Paragraph 7 is clear from the history of the previous proposed legislations on the subject. A comparison of the provisions of the Constitution (Thirty-second Amendment) Bill, 1973 and the Constitution (Forty-eight Amendment) Bill, 1978, (both of which had lapsed) on the one hand and the Constitution (52nd Amendment) Bill, 1985, would bring-out the avowed and deliberate intent of Paragraph 7 in the Tenth Schedule. The previous constitution (32th and 48th Amendment) Bills contained similar provisions for 743 disqualification on grounds of defections, but these Bills did not contain any clause ousting the jurisdiction of the court. Determination of disputed disqualifications was left to the Election Commission as in the case of other disqualifications under Article 102 and 103 in the case of members of Parliament and Articles 191 and 192 in the case of Members of Legislature of the States. The Constitution (Fifty-second Amendment) Bill for the first time envisaged the investiture of the power to decide disputes on the speaker or the Chairman. The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution of India, Shri Sibal’s suggested contention would go against all these over-whelming interpretative criteria apart from its unacceptability on the express language of paragraph 7.

23. But it was urged that no question of change in Articles 136, 226 and 227 of the Constitution within the meaning of clause (b) of the proviso to Article 368(2) arises at all in view of the fact that the area of these rights and obligations being constitutionally rendered non- justiciable, there is no judicial review under Articles 136,226 and 227 at all in the first instance so as to admit of any idea of its exclusion. Reliance was placed on the decisions of this Court in Sri Sankari Prasad Singh Deo v.

Union of India and State of Bihar, [1951] INSC 45; [1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1964] INSC 246; [1965] 1 SCR 933.

24. In Sankari Prasad’s case, the question was whether the Amendment introducing Articles 31A and 31B in the Constitution required ratification under the said proviso.

Repelling this contention it was observed:

“It will be seen that these articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of certain kind of property from the operation of articles 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13. It is not correct to say that the powers of the High Court under Article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same 744 as they were before: only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, no because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.” [1982 SCR 89 at 108] In Sajjan Singh’s case, a similar contention was raised against the validity of the Constitution (17th Amendment) Act, 1964 by which Article 31 A was again amended and 44 statutes was whether the amendment required ratification under the proviso the Article 368. This Court noticed the question thus :

“The question which calls for our decision is: what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Article 226 are likely to be affected?” [P. 940] Negativing the challenge to the amendment on the ground of nonratification, it was held:

“…. Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment of the socio-economic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts’powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure.

That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained….” [P.944] 745 The propositions that fell for consideration is Sankari Prasad Singh’s and Sajjan Singh’s cases are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either “in terms or in effect”, since the very rights which could be adjudicated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the Courts to operate upon. Matters are entirely different in the context of paragraph 7. Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners.

The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either “in terms of or in effect”. It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is `in effect’ a change in those provisions attracting the proviso.

Indeed this position was recognised in Sajjan Singh’s case where it was observed:

“If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise.” [P.944] In the present cases, though the amendment does not bring in any change directly in the language of Article 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Article 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2).

Paragraph 7, therefore, attracts the proviso and ratification was necessary.

Accordingly, on Point B, we hold:

“That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the constitution in terms and in effect bring 746 about a change in the operation and effect to Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.” 25. Re: Contentions `C’ and `D’ :

The criterion for determining the validity of a law is the competence of law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power.

Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power my be substantive as well as procedural.

Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas fro its ambit. Procedural limitations are those which impose restrictions with regard to the mode of the exercise of the amending power. Both these limitations, however, touch and affect the constituent power itself, disregard of which invalidates its exercise.

26. The Constitution provides for amendment in Articles 4, 169, 368, paragraph 7 of Fifth Schedule and paragraph 21 of Sixth Schedule. Article 4 makes provisions for amendment of the First and the Fourth Schedules, Article 169 provides for amendment in the provision of the Constitution which may be necessary for abolition or creation of Legislative Councils in States, paragraph 7 of the Fifth Schedule provides for amendment of the Fifth Schedule and paragraph 21 of Sixth Schedule provides for amendment of the Sixth Schedule. All these provisions prescribe that the said amendments can be made by a law made by Parliament which can be passed like any other law by a simple majority in the House of Parliament. Article 368 confers the power to amend the rest of the provisions of the Constitution. In sub- Article (2) of Article 368, a special majority – two-thirds of the members of each House of Parliament present and voting and majority of total membership of such House – is required to effectuate the amendments. The proviso to sub- article (2) of Article 368 imposes a further requirement that if any change in the provisions set out in clauses (a) to (e) of the proviso, is intended it would then be necessary that the amendment 747 be ratified by the legislature of not less than one-half of the States.

Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word `amend’, a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. The amending power under Article 368 is subject to the substantive limitation in that the basic structure cannot be altered or the basic features of the Constitution destroyed. The limitation requiring a special majority is a procedural one. Both these limitations impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power.

27. While examining the constitutional validity of laws the principle that is applied is that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part.

This is done by applying the doctrine of severability. The rationale of this doctrine has been explained by Cooley in the following words;

“It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or inregard to which the necessary conditions have not been observed, must be treated as a nullity.

Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States 748 or of the State. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional.” [Cooley’s Constitutional Limitations; 8th Edn. Vol. 1, p. 359-360] In R.M.D. Chamarbaugwalla v. Union of India, [1957] INSC 32; [1957] SCR 930, this Court has observed:

“The question whether a statute, which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds: It may be with reference to the subject-matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, ss. 91 and 92 of the Canadian Constitution, and s. 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them as for example, in relation to the fundamental rights guaranteed in Part III of the Constitution and similar constitutionally protected rights in the American and other Constitutions. When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what 749 is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act.” [P.940] The doctrine of severability has been applied by this Court in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power, namely, alteration of the basic structure. But only the offending part of the amendment which had the effect of altering the basic structure was struck down while the rest of the amendment was unheld, See : Shri Kesavananda Bharti Sripadagalavaru v. State of Kerala, [1973] Supp. SCR 1; Minerva Mills Ltd.& Ors. v. Union of India & Ors., [1980] INSC 141; [1981] 1 SCR 206; P. Sambhamurthy & Ors, etc. v. State of Andhra Pradesh & Anr., [1986] INSC 278; [1987] 1 SCR 879.

28.Is there anything in the procedural limitations imposed by sub- Article (2) of Article 368 which excludes the doctrine of severability in respect of a law which violates the said limitations? Such a violation may arise when there is a composite Bill or what is in statutory context or jargon called a `Rag-Bag’ measure seeking amendments to several statutes under one amending measure which seeks to amend various provisions of the Constitution some of which may attract clauses (a) to (e) of the proviso to Article 368(2) and the Bill, though passed by the requisite majority in both the Houses of Parliament has received the assent of the President without it being sent to States for ratification or having been so sent fails to receive such ratification from not less than half the States before the Bill is presented for assent. Such an Amendment Act is within the competence of Parliament insofar as it relates to provisions other than those mentioned in clauses (a) to (e) of proviso to Article 368(2) but in respect of the amendments introduced in provisions referred to in clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to make could be declared invalid.

29. Is there anything compelling in the proviso to Article 368(2) requiring it to be construed as excluding the doctrine of severability to such an amendment? It is settled rule of statutory construction that “the proper function of a proviso is to except and deal with a case which could 750 otherwise fall within the general language of the main enactment, and its effect is confined to that case” and that where “the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms”. [See : Madras & Southern Mahratta railway company v. Bezwada Municipality, (1944) 71 I.A. 133 at P. 122;

Commissioner of Income Tax, Mysore v. Indo-Mercantile Bank Ltd., [1959] Supp. 2 SCR 256 at p. 266.

The proviso to Article 368(2) appears to have been introduced with a view to giving effect to the federal principle. In the matter of amendment of provisions specified in clauses (a) to (e) relating to legislative and executive powers of the States vis-a-vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on the States, the proviso imposes an additional requirement of ratification of the amendment which seeks to effect a change in those provisions before the Bill is presented for the assent of the President. It is salutary that the scope of the proviso is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368 (2). An amendment which otherwise fulfills the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. The main part of Article 368(2) directs that when a Bill which has been passed by the requisite special majority by both the Houses has received the assent of the President “the Constitution shall stand amended in accordance with the terms of the Bill”. The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied-even the amendments which do not fall within the ambit of the proviso also become abortive. The words “the amendment shall also require to be ratified by the legislature” indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso.

The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. Indeed the following observations of this Court in Sajjan Singh case (supra) are apposite:

751 “In our opinion, the two parts of Art.368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged.” [P.940]

30. During the arguments reliance was placed on the words “before the Bill making provision for such amendment is presented to the President for assent” to sustain the argument that these words imply that the ratification of the Bill by not less than one-half of the States is a condition -precedent for the presentation of the Bill for the assent of the President. It is further argued that a Bill which seeks to make a change in the provisions referred to in clauses (a) to (e) of the proviso cannot be presented before the President for his assent without such ratification and if assent is given by the President in the absence of such ratification, the amending Act would be void and ineffective in its entirety.

A similar situation can arise in the context of the main part of Article 368(2) which provides: “when the bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting, it shall be presented to the president”. Here also a condition is imposed that the Bill shall be presented to the President for his assent only after it has been passed in each House by the prescribed special majority. An amendment in the First and Fourth Schedule referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority. There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President. The amendments which are made in the First and Fourth Schedules by the said amendment Act were validly made in view of Article 4 but the amendments in other provisions were in disregard to Article 368(2) which requires a special majority. Is not the doctrine of severability applicable to such an amendment so that amendments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other provisions as ineffective? A contrary 752 view excluding the doctrine of severability would result in elevating a procedural limitation on the amending power to a level higher than the substantive limitations.

31. In Bribery Commissioner v. Pedrick Ranasinghe, [1964] UKPC 1; (1965 A.C. 172), the Judicial Committee has had to deal with a somewhat similar situation. This was a case from Ceylon under the Ceylon (Constitution) Order of 1946. Clause (4) of section 29 of the said Order in council contained the amending power in the following terms;

“(4)In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of members of the House (including those not present).

Every certificate of the Speaker under this sub- section shall be conclusive for all purposes and shall not be questioned in any court of law.” In that case, it was found that section 41 of the Bribery Amendment Act, 1958 made a provision for appointment of a panel by the Governor-General on the advice of the Minister of Justice for selecting members of the Bribery Tribunal while section 55 of the constitution vested the appointment, transfer, dismissal and disciplinary control of judicial officers in the Judicial Service Commission. It was held that the legislature had purported to pass a law which, being in conflict with section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers and could only be made by laws which comply with the special legislative procedure laid down in section 29(4). Since there was nothing to show that the Bribery Amendment Act, 1951 was passed by the necessary two-thirds majority, it was held that “any Bill which does not comply 753 with the condition precedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires”. Applying the doctrine of severability the Judicial Committee, however, struck down the offending provision, i.e. section 41 alone. In other words passing of the Bill by special majority was the condition precedent for presentation of the Bill for the assent. Disregard of such a condition precedent for presenting a Bill for assent did not result in the entire enactment being vitiated and the law being declared invalid in its entirety but it only had the effect of invalidation of a particular provision which offended against the limitation on the amending power. A comparison of the language used in clause (4) of section 29 with that of Article 368(2) would show that both the provisions bear a general similarity of purpose and both the provisions require the passing of the Bill by special majority before it was presented for assent. The same principle would, therefore, apply while considering the validity of a composite amendment which makes alterations in the First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth Schedules. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. The principle of severability can be equally applied to a composite amendment which contains amendments in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid.

32. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the `Committee on Defections’ as well as the earlier Bills which were 754 moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body- politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it has known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.

We accordingly hold on contentions `C’ and `D’:

“That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that ” thereupon the Constitution shall stand amended” the operation of the proviso should not be extended to constitutional amendments in Bill which can stand by themselves without such ratification.

That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area.

There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified.

That Paragraph 7 of the Tenth Schedule contains a provision 755 which is independent of, and stands apart from the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.” 33. Re: Contentions `E’ and `F’:

These two contentions have certain over-lapping areas between them and admit of being dealt with together.

Paragraph 6(1) of the Tenth Schedule seeks to impart a statutory finality to the decision of the Speaker or the Chairman. The argument is that, this concept of `finality’ by itself, excludes Courts’ jurisdiction. Does the word “final” render the decision of the Speaker immune from Judicial Review? It is now well-accepted that a finality clause is not a legislative magical incantation which has that effect of telling of Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. On the meaning and effect of such finality clause, Prof. Wade in `Administrative Law’ 6th Edn, at page 720 says:

“Many statues provide that some decision shall be final. That provision is a bar to any appeal. But the courts refuse to allow it to hamper the operation of judicial review. As will be seen in this and the following section, there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court.

Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of the words. This is a sound policy, since otherwise administrative authorities and tribunals would be given uncontrollable power and could violate the law at will. `Finality’ is a good thing but justice is a better.” “If a statute says that the decision `shall be final’ or `shall be final and conclusive to all intents and purposes’ this is held to mean merely that there is no appeal: judicial control of legality is unimpaired. “Parliament only gives the impress of finality to 756 the decisions of the tribunal on condition that they are reached in accordance with the law. This has been the consistent doctrine for three hundred years.” Learned Professor further says:

“The normal effect of a finality clause is therefore to prevent any appeal. There is no right of appeal in any case unless it is given by statute. But where there is general provision for appeals, for example, from quarter session to the High Court by case stated, a subsequent Act making the decision of quarter session final on some specific matter will prevent an appeal. But in one case the Court of Appeal has deprived a finality clause of part even of this modest content, holding that a question which can be resolved by certiorari or declaration can equally well be the subject of a case stated, since this is only a matter of machinery. This does not open the door to appeals generally, but only to appeals by case stated on matters which could equally well be dealt with by certiorari or declaration, i.e., matter subject to judicial review.

“A provision for finality may be important in other contexts, for example when the question is whether the finding of one tribunal may be reopened before another, or whether an interlocutory order is open to appeal……”.

[Page 721] Lord Devlin had said “Judicial interference with the executive cannot for long greatly exceed what Whitehall will accept” and said that a decision may be made un- reviewable “And that puts the lid on”. Commenting on this Prof. Wade says: “But the Anisminic case showed just the opposite, when the House of Lord removed the lid and threw it away.” [See: Constitutional Fundamentals, the Hamlyn Lectures, 1989 Edn. p.88] In Durga Shankar Mehta v. Raghuraj Singh, [1954] INSC 68; AIR 1954 SC 520 the order of the Election Tribunal was made final and conclusive by s. 105 of the Representation of the People Act, 1951. The contention was that the finality and conclusiveness clauses barred the jurisdiction of the Supreme Court under Article 136. This contention was repelled. It was observed:

“…..but once it is held that it is a judicial tribunal empowered 757 and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any parliamentary legislation.

…… But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised.

…… The powers given by Article 136 of the Constitution, however, are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land ……

Section 105 of the Representation of the People Act certainly give finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or effect the overriding powers which this court can exercise in the matter of granting special leave under Art. 136 of the Constitution.” [p.522]

34. Again, in Union of India v. Jyoti Prakash Mitter, [1971] INSC 18; [1971] 3 SCR 483 a similar finality clause in Articles 217(3) of the Constitution camp up for consideration. This Court said:

“….The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers.

Notwithstanding the declared finality of the order of the president the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed, or that the President’s judgment was coloured by the advice or representation made by the executive or it was founded on no evidence….” (p-505).

758 Referring to the expression “final”occurring in Article 311(3) of the Constitution this Court in Union of India & Anr. v. Tulsiram Patel & Ors.

[1985] Supp. 2 SCR 131 at page 274 held:

“……The finality given by clause (3) of Article 311 to the disciplinary authority’s decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevance of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry.

If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b)…..”

35. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different. Even so, where such exclusion is sought to be effected by an amendment the further question whether such an amendment would be destructive of a basic feature of the Constitution would arise. But comparison of the language in Article 363(1) would bring out in contrast the kind of language that may be necessary to achieve any such purpose.

In Brundaban Nayak v. Election Commission of India & Anr., [1965] INSC 34; [1965] 3 SCR 53, in spite of finality attached by Article 192 to the decision of the Governor in respect of disqualification incurred by a member of a State Legislature subsequent to the election, the matter was examined by this Court on an appeal by special leave under Article 136 of the Constitution against the decision of the High Court dismissing the writ petition filed under Article 226 of the Constitution. Similarly in Union of India v. Jyoti Prakash Mitter, [1971]3 SCR 483, in spite of finality attached to the order of the President with regard to the determination of age of a Judge of the High Court under Article 217 (3) of the Constitution, this Court examined the legality of the order passed by the President during the pendency of an appeal filed under Article 136 of the Constitution.

There is authority against the acceptability of the argument that the word “final” occurring in Paragraph 6(1) has the effect of excluding the 759 jurisdiction of the Courts in Articles 136, 226 and 227.

36. The cognate questions are whether a dispute of the kind envisaged by Paragraph 6 of the Tenth Schedule is in a non-justiciable area and that, at all events, the fiction in Paragraph 6(2) that all proceedings under Paragraph 6(1) of the Tenth Schedule be deemed to be “proceedings in Parliament” of “Proceedings in the Legislature of a State” attracts immunity from the scrutiny by Courts as under Article 122 or 212, as the case may be.

Implicit in the first of these postulates is the premise that questions of disqualification of members of the House are essentially matters pertaining to the Constitution of the House and, therefore, the Legislature is entitled to exert its exclusive power to the exclusion of the judicial power. This assumption is based on certain British legislature practices of the past in an area which is an impalpable congeries of legal rules and conventions peculiar to and characteristic of British Parliamentary traditions.

Indeed, the idea appears to have started with the proposition that the Constitution of the House was itself a matter of privilege of the House. Halsbury contains this statement:

“1493, Privilege of the House of Commons in relation to its constitution: In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, the House of Commons claims the exclusive right of providing, as it may deem fit, for its own proper constitution.” (emphasis supplied) (See: Halsbury’s Laws of England, 4th Edn. Vol. 34 Pages 603 & 604) But in the Indian constitutional dispensation the power to decide a disputed disqualification of an elected member of the House is not treated as a matter of privilege and the power to resolve such electoral disputes is clearly judicial and not legislative in nature. The fact that election disputes were at some stage decided by the House of Commons itself was not conclusive that even their power was legislative. The controversy, if any, in this area is put at rest by the authoritative earlier pronouncements of this Court.

37.In Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347 Beg J., referring to the historical background relating to the resolution of electoral disputes by the House of Common said:

“I do not think that it is possible to contend, by resorting to some concept of a succession to the powers of the medieval “High Court of Parliament” in England, that a judicial power also devolved upon our Parliament through the constituent Assembly, mentioned in Sec. 8 of the Indian Independence Act of 1947. As already indicated by me, the Constituent assembly was invested with law making and not judicial powers. Whatever judicial power may have been possessed once by English kings sitting in Parliament, constituting the highest Court of the realm in medieval England, have devolved solely on the House of Lords as the final court of appeal in England. “King in Parliament” had ceased to exercise judicial powers in any other way long before 1950. And, the House of Commons had certainly not exercised a judicial power as a successor to the one time jurisdiction of the “King in Parliament” with the possible exception of the power to punish for its contempts….” [p.627 & 628] In the same case, Justice Mathew made these observations as to the imperative judicial nature of the power to resolve disputes.

“The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to , namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections……” [p.504] “In whichever body or authority, the jurisdiction is vested, the 761 exercise of the jurisdiction must be judicial in character. This court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision nothwithstanding the provisions of Article 329(b).” (emphasis supplied) [p.506] It is also useful to recall the following observations of Gajendragadkar J., on the scope of Article 194(3) of the Constitution, which is analogous to Article 105(3) in Special Reference No.1 of 1964 [1964] INSC 209; [1965] 1 SCR 413:

“This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 1950. it is well-known that out of a large number of privileges and powers which the House of commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English Courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is: is the power in question shown or proved to have subsisted in the House of Commons at the relevant time?” (See page 442) This question is answered by Beg, J. in Indira Nehru Gandhi’s case:

“I think, at the time our Constitution was framed, the decision 762 of an election dispute had ceased to be a privilege of the House of Commons in England and therefore, under Article 105(3), it could not be a privilege of Parliament in this country.” [p.505] 38.Indeed, in dealing with the disqualifications and the resolution of disputes relating to them under Articles 191 and 192 or Article 102 and 103, as the case may be, the Constitution has evinced a clear intention to resolve electoral-disputes by resort to the judicial power of the State. Indeed, Justice Khanna in Indira Nehru Gandhi’s case said:

“Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction.

It is further plain that if the validity of the election declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds…..” (See page 468) It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area. The classic exposition of Justice Issacs J., in Australian Boot Trade Employees Federation v. Whybrow & Co., [1910] 10 CLR 226 at page 317, as to what distinguishes a judicial power from a legislative power was referred to with the approval of this Court in Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578 at 611. Issacs J., stated:

“If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties- in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with 763 sanctions for non-conformity then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it.

If, again, there are neither present rights asserted, nor a future rule of conduct prescribed, but merely a fact ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act.” In the present case, the power to decide disputed disqualification under Paragraph 6(1) is preeminently of a judicial complexion.

39. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be.

The words “proceedings in Parliament” or “proceedings in the legislature of a State” in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures.

That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.

40. But then is the Speaker or the Chairman acting under Paragraph 6(1) is a Tribunal? “All tribunals are not courts, though all Courts are Tribunals”. The word “Courts” is used to designate those Tribunals which are set up in an organised State for the Administration of Justice. By Administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish “wrongs”. Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. See: Harinagar Sugar Mills 764 Ltd. v. Shyam Sunder Jhunjhunwala & Ors., [1961] INSC 185; [1962] 2 SCR 339.

In that case Hidayatullah, J. said:

“….By “courts” is meant courts of civil judicature and by “tribunals”, those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable.

Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that the courts have “an air of detachment”. But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient.” [p.362] Where there is a lis-an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is a exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court.

In Associated Cement Companies Ltd. v. P.N. Sharma and Anr., [1965]2 SCR 366, this Court said:

“….. The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State’s inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under R.6(5) and R.6(6) is a part of the State’s judicial power…..There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is 765 described as its decision and it is made final and binding…..” [p.386 and 387] By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal.

41. In the operative conclusions we pronounced on 12th November, 1991 we indicated in clauses G and H therein that Judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction.

The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations.

While exercising their certiorari jurisdiction, the courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction. An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of rule of natural justice. See : Administrative Law by H.W.R.

Wade, 6th Edn., pp. 724-726; Anisminic Ltd. v. Foreign Compensation commission[1968] UKHL 6; , [1969] 2 AC 147; S.E. Asia Fire Bricks v. Non-Metallic Products, [1981] A.C. 363.

766 In Makhan Singh v. State of Punjab, [1964] 4 SCR 797, while considering the scope of judicial review during the operation of an order passed by the President under Article 359(1) suspending the fundamental right guaranteed under Article 21 of the Constitution, it has been held that the said order did not preclude the High Court entertaining a petition under Article 226 of the Constitution where a detenu had been detained in violation of the mandatory provisions of the detention law or where the detention has been ordered mala fide. It was emphasised that the exercise of a power mala fide was wholly outside the scope of the Act conferring the power and can always be successfully challenged. (p. 825) Similarly in State of Rajasthan v. Union of India, [1977] INSC 145; [1978] 1 SCR 1, decided by a seven judge Bench, high Court was considering the challenge to the validity of a proclamation issued by the President of India under Article 356 of the constitution. At the relevant time under clause (5) of Article 356, the satisfaction of the President mentioned in clause (1) was final and conclusive and it could not be questioned in any court on any ground. All the learned judges have expressed the view that the proclamation could be open to challenge if it is vitiated by mala fides.

While taking this view, some of the learned judges have made express reference to the provisions of clause(5).

In this context, Bhagwati, J (as the learned Chief Justice then was) speaking for himself and A.C. Gupta, J.

has stated:

“Of course by reason of cl. (5) of Art. 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is no satisfaction at all. In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can the so called satisfaction of the President in such a case not be challenged 767 on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all.”(pp. 82-83) Untwalia, J. has held as follows:

“I, however, must hasten to add that I cannot persuade myself to subscribe to the view that under no circumstances an order of proclamation made by the President under Article 356 can be challenged in a Court of Law. And, I am saying so notwithstanding the provision contained in clause (5) of the said Article introduced by the Constitution(38th Amendment) Act, 1975.”(p. 94) “But then, what did I mean by saying that situation may arise in a given case where the jurisdiction of the Court is not completely ousted? I mean this.

If, without entering into the prohibited area, remaining on the fence, almost on the face of the impugned order or the threatened action of the President it is reasonably possible to say that in the eye of law it is no order or action as it is in flagrant violation of the very words of a particular Article, justifying the conclusion that the order is ultra vires, wholly illegal or passed mala fide, in such a situation it will be tantamount in law to be no order at all. Then this Court is not powerless to interfere with such an order and may, rather, must strike it down.”(p. 95) Similarly, Fazal Ali, J. has held :

“Even if an issue is not justiciable, if the circumstances relied upon by the executive authority are absolutely extraneous and irrelevant, the Courts have the undoubted power to scrutinise such an e exercise of the executive power. Such a judicial scrutiny is one which comes into operation when the exercise of the executive power is colourable or mala fide and based on extraneous or irrelevant considerations.” (p. 116) “It is true that while an order passed by the President under Article 356 is put beyond judicial scrutiny by cl. (5) of Art.356, but this does not mean that the Court possesses no jurisdiction 768 in the matter at all. Even in respect of cl. (5) of Art. 356, the Courts have a limited sphere of operation in that on the reasons given by the President in his order if the Courts find that they are absolutely extraneous and irrelevant and based on personal and illegal consideration the Courts are not powerless to strike down the order on the ground of mala fide if proved.” (p.120) In Union of India v. Jyoti Prakash Mitter (supra), dealing with the decision of the President under Article 217 (3) on the question as to the age of a judge of the High Court, requiring a judicial approach it was held that the field of judicial review was enlarged to cover violation of rules of natural justice as well as an order based on no evidence because such errors are errors of jurisdiction.

c In Union of India & Anr. v. Tulsiram Patel & Ors.

(supra) this Court was dealing with Article 311 (3) of the constitution which attaches finality to the order of the disciplinary authority on the question whether it was reasonably practicable to hold an inquiry. It was observed that though the `finality’ clause did not bar jurisdiction it did indicate that the jurisdiction is limited to certain grades.

In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under paragraph 6, the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

In view of the limited scope of judicial review that is available on account of the finality clause in paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e.

Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.

769 42. In the result, we hold on contentions E and F :

That the Tenth Schedule does not, in providing for an additional grant for disqualification and for adjudication of disputed disqualifications, seek to create a nonjusticiable constitutional area. The power to resolve such disputes vested in the Speaker or chairman is a judicial power.

That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.

That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh’s Case Spl.Ref. No. 1[1964] INSC 209; , [1965] 1 SCR 413, to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings in the Legislature of a State” confines the scope of the fiction accordingly.

The Speaker/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible 770 repurcussions and consequence.

43. Re : Contention(G):

The argument is that an independant adjudicatory machinery for resolution of electrol disputes is an essential incident of democracy, which is a basic feature of Indian consitutionalism. It is urged that investiture of the power of resolving such disputes in the Speaker or the Chairman does not answer this test of an independent, impartial quality of the adjudicatory machinery. It is, therefore, urged that Paragraph 6(1) of the Tenth Schedule is violative of a basic feature.

It is also urged that a Speaker, under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free tugs and pulls of political polarisations. It is urged that the Speaker who has not resigned his membership of the political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias.

44. The Tenth Schedule breaks away from the constitutional pattern for resolution of disqualifications envisaged in Articles 103 and 192 of the Constitution which vest jurisdiction in this behalf in the President or the Governor acting according to the opinion of Election Commission. The disqualifications for defection could very well have been included in Article 102(1) or 191(1) as a ground, additional to the already existing grounds under clauses (a) to (e) in which event, the same dispute resolution machinery would have dealt with the disqualifications for defections also. But the Tenth Schedule, apparently. attempted a different experiment in respect of this particular ground of disqualification.

45.The question is, whether the investiture of the determinative jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority. We are afraid the criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy. The office of the speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. `The Speaker holds a high, important and ceremonial office. All questions of the well being of the House 771 are matters of Speaker’s concern’. The Speaker is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character.

Mavalankar, who was himself a distinguished occupant of that high office, says :

“In parliamentary democracy, the office of the Speaker is held in very high esteem and respect.

There are many reasons for this. Some of them are purely historical and some are inherent in the concept of parliamentary democracy and the powers and duties of the Speaker. Once a person is elected Speaker, he is expected to be above parties, above politics. In other words, he belongs to all the members or belongs to none. He holds the scales of justice evenly irrespective of party or person, though no one expects that he will do absolute justice in all matters; because, as a human being he has his human drawbacks and shortcomings. However, everybody knows that he will intentionally do no injustice or show partiality. “Such a person is naturally held in respect by all.” [See : G. V. Mavalankar : The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol. 2, No. 1, p.33] Pundit Nehru referring to the office of the Speaker said :

“….The speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty.

Therefore, it is right that that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality.

[See : HOP. Deb. Vol.IX (1954), CC 3447-48] Referring to the Speaker, Erskine may says :

“The Chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality. As a symbol of his authority he is accompanied by the Royal Mace 772 which is borne before him when entering and leaving the chamber and upon state occasions by the Sergeant at Arms attending the House of commons, and is placed upon the table when he is in the chair. In debate all speeches are addressed to him and he calls upon Members to speak – a choice which is not open to dispute. When he rises to preserve order or to give a ruling on a doubtful point he must always be heard in silence and no Member may stand when the Speaker is on his feet. Reflections upon the character or actions of the Speaker may be punished as breaches of privilege. His action cannot be criticized incidentally in debate or upon any form of proceeding except a substantive motion. His authority in the chair is fortified by many special powers which are referred to below.

Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised…..” [See : Erskine May – Parliamentary Practice – 20th edition p. 234 and 235] M.N. Kaul and S.L. Shakdher in `Practice and procedure of Parliament’ 4th Edition, say :

“The all important conventional and ceremonial head of Lok Sabha is the Speaker. Within the walls of the House his authority is supreme. This authority is based on the Speaker’s absolute and unvarying impartiality – the main feature of the office, the law of its life. The obligation of impartiality appears in the constitutional provision which ordains that the Speaker is entitled to vote only in the case of equality of votes. Moreover, his impartiality within the House is secured by the fact that he remains above all considerations of party or political career, and to that effect he may also resign from the party to which he belonged.” [p. 104]

46. It would, indeed, be unfair to the high traditions of that great 773 office to say that the investiture, in it of this Jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the High office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker to change and elevate the man inside.

47. Accordingly, the contention that the vesting of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and to take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power of adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.

48.Re : Contention H :

In the view we take of the validity of paragraph 7 it is unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and paragraph 7 of the Tenth Schedule violates such basic structure.

49. We may now notice one other contention as to the construction of the expression `any direction’ occurring in paragraph 2(1)(b). It is argued that if the expression really attracts within its sweep every direction or whip of any kind whatsoever it might be unduly restrictive of the freedom of speech and the right of dissent and that, therefore, should be given a meaning limited to the objects and purposes of the Tenth Schedule. Learned counsel relied upon and commended to us the view taken by the minority in the Full Bench decision of Punjab and Haryana High Court in Parkash Singh Badal & Ors. v. Union of India & Ors., [AIR 1987 Punjab and Haryana 263] where such a restricted sense was approved. Tewatia J. said :

“If the expression : “any direction” is to be literally construed then it would make the people’s representative a wholly political party’s representative, which decidedly he is not. The Member would virtually lose his identity and would become a rubber 774 stamp in the hands of his political party. Such interpretation of this provision would cost it, its constitutionality, for in that sense it would become destructive of democracy/parliamentary democracy, which is the basic feature of the Constitution. Where giving of narrow meaning and reading down of the provision can save it from the vice of unconstitutionality the Court should read it down particularly when it brings the provision in line with the avowed legislative intent…….” “……….the purpose of enacting paragraph 2 could be no other than to insure stability of the democratic system, which in the context of Cabinet/Parliamentary form of Government on the one hand means that a political party or a coalition of political parties which has been voted to power, is entitled to govern till the next election, and on the other, that opposition has a right to censure the functioning of the Government and even overthrow it by voting it out of power if it had lost the confidence of the people, then voting or abstaining from voting by a Member contrary to any direction issued by his party would by necessary implication envisage voting or abstaining from voting in regard to a motion or proposal, which if failed, as a result of lack or requisite support in the House, would result in voting the Government out of power, which consequence necessarily follows due to well established constitutional convention only when either a motion of no confidence is passed by the House or it approves a cut-motion in budgetary grants. Former because of the implications of Article 75(3) of the Constitution and latter because no Government can function without money and when Parliament declines to sanction money, then it amounts to an expression of lack of confidence in the Government. When so interpreted the clause (b) of sub-paragraph (1) of paragraph 2 would leave the Members free to vote according to their views in the House in regard to any other matter that comes up before it.” [p.313 & 314] The reasoning of the learned judge that a wider meaning of the words “any direction” would `cost it its constitutionality’ does not commend to us.

775 But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning.

While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution members of Parliament as well as of the State legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the constitution and the rules and standing orders regulating the Procedure of the House [Art, 105(1) and art.194(1)]. The disqualification imposed by Paragraph 2(1) (b) must be so construed as not to unduly impinge on the said freedom of speech of a member. This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls. For this purpose the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the elaborate. The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme of the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.

Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the 776 direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.

50. There are some submissions as to the exact import of a “split – whether it is to be understood an instantaneous, one time event or whether a “split” can be said to occur over a period of time. The hypothetical poser was that if one-third of the members of a political party in the legislature broke-away from it on a particular day and a few more members joined the spliter group a couple of days later, would the latter also be a part of the “split” group.

This question of construction cannot be in vaccuo. In the present cases, we have dealt principally with constitutional issues. The meaning to be given to “split” must necessarily be examined in a case in which the question arises in the context of its particular facts. No hypothetical predications can or need be made. We, accordingly,, leave this question open to be decided in an appropriate case.

51. Before parting with the case, we should advert to one other circumstance. During the interlocutory stage, the constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker. It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should been made.

The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency.

One of the contentions urged was as to the invalidity of the amendment for non-compliance with the proviso to Article 368(2) of the Constitution. It has now been unanimously held that Paragraph 7 attracted the proviso to article 368(2). The interlocutory orders in this case were necessarily 777 justified so that, no land-slide changes were allowed to occur rendering proceedings ineffective and infructuous.

52. With the finding and observations as aforesaid W.P.No. 17 of 1991 is dismissed. Writ petition in Rule No. 2421 of 1990 in the High Court of Gauhati is remitted back to the High Court for disposal in accordance with law and not inconsistent with the findings and observations contained in this order.

VERMA, J. : This matter relating to disqualification on the ground of defection of some members of the Negaland legislative Assembly under the Tenth Schedule inserted by the Constitution (Fifty-Second Amendment) Act, 1985, was heard along with some other similar matters relating to several Legislative Assemblies including those of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa, since all of them involved the decision of certain constitutional questions relating to the constitutional validity of para 7 of the Tenth Schedule and consequently the validity of the Constitution (Fifty-Second Amendment) Act, 1985 itself. At the hearing, several learned counsel addressed us on account of which the hearing obviously took some time. Even during the course of the hearing, the actions of some Speakers tended to alter the status quo, in some cases resulting in irreversible consequences which could not be corrected in the event of para 7 of the Tenth Schedule being held invalid or the impugned orders of the Speakers being found justiciable and, on merits illegal and, therefore, the urgency increased of deciding the questions debated before us at the earliest. For this reason, we indicated during the course of the hearing that we would pronounce our operative conclusions soon after conclusion of the hearing with reasons therefor to follow. Accordingly, on conclusion of the hearing on November 1, 1991, we indicated that the operative conclusions would be pronounced by us at the next sitting of the Bench when it assembled on November 12, 1991 after the Diwali Vacation. The operative conclusions of the majority (Venkatachaliah, Reddy and Agrawal, JJ.) as well as of the miority (Lalit Mohan Sharma and J.S.Verma,JJ.)were thus pronounced on November 12, 1991. We are now indicating herein our reasons for the operative conclusions of the minority view.

The unanimous opinion according to the majority as well as the minority is that para 7 of the tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the 778 Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the proviso to clause (2) of Article 368 of the Constitution; and therefore, ratification by the specified number of State Legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State legislatures, it is para 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, para 7 alone is liable to be struck down rendering the speakers’decision under para 6 that of a judicial tribunal amenable to judicial review by the Supreme court and the High courts under Article 136, 226 and 227. The minority opinion is that the effect of invalidity of para 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule since the President’s assent to the bill without prior ratification by the State Legislatures is non est.

The minority view also is that para 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth Schedule is in excess of the amending powers being violative of a basic feature of the Constitution. In the minority opinion, we have held that the entire constitution (Fifty-Second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the constitutional Amendment indicated therein.

Before proceeding to give our detailed reasons, we reproduce the operative conclusions pronounced by us on November 12, 1991 in the minority opinion (Lalit Mohan Sharma and J.S. Verma, JJ.) as under :

“For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows :

1.Pare 7 of the Tenth Schedule, in clear terms and in effect, excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perversity, not only 779 at an interim stage but also after the final decision on the question of disqualification on the ground of defection.

2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution attracting the proviso to clause (2) of Article 368.

3. In view of para 7 in the Bill resulting in the constitution (Fifty-Second Amendment) Act, 1985, it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the proviso to clause (2) of Article 368 for exercise of the constituent power. Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so- called assent of the President was non est and did not result in the constitution standing amended in accordance with the terms of the Bill.

4. In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.

5.Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368.

6. Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.

7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.

8. Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution.

Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as a attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

9.Consequently, the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution.

10.It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.

11. On the above conclusions, it does not appear necessary or appropriate to decide the remaining questions urged.” it is unnecessary in this judgment to detail the facts giving rise to the debate on the constitutional issues relating to the validity of the Tenth Schedule, more particularly para 7 therein, introduced by the Constitution (Fifty-second Amendment) Act, 1985. Suffice it to say that these matters arise out of certain actions of the Speakers of several Legislative Assemblies under the Tenth Schedule.

Arguments on these questions were 781 addressed to us by several learned counsel, namely, the learned Attorney General, S/Shri A.K. Sen, Shanti Bhushan, M.C. Bhandare, F.S. Nariman, Soli J. Sorabjee, R.K. Garg, Kapil Sibal, M.R. Sharma, Ram Jethmalani, N.S. Hegde, O.P.

Sharma, Bhim Singh and R.F. Nariman. It may be mentioned that some learned counsel modified their initial stand to some extent as the hearing progressed by advancing alternative arguments as well. Accordingly, the several facets of each constitutional issue debated before us were fully focused during the hearing. The main debate, however, was on the construction of paras 6 and 7 of the Tenth Schedule and the validity of the Constitutional Amendment.

Arguments were also addressed on the question of violation, if any,of any basic feature of the Constitution by the provisions of the Tenth Schedule.

The points involved in the decision of the constitutional issues for the purpose of our opinion may be summarised broadly as under :- (A) Construction of para 6 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

(B) Construction of para 7 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

(C) In case of total exclusion of judicial review including the jurisdiction of Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution by the Tenth Schedule, does para 7 make a change in these Articles attracting the proviso to clause (2) of Article 368 of the Constitution ? (D) The effect of absence of prior ratification by the State Legislatures before the Bill making provisions for such amendment was presented to the President for assent, on the constitutional validity of the Tenth Schedule.

(E) Severability of para 7 from the remaining part of the Tenth Schedule and its effect on the question of constitutional validity of the Tenth Schedule.

(F) Violation of basic feature of the Constitution, if any, by the Tenth Schedule as a whole or any part thereof and its effect on the constitutionality for this reason.

782 (G) Validity of the Tenth Schedule with reference to the right of dissent of members with particular reference to Article 105.

As indicated by us in our operative conclusions pronounced earlier, we need not express our concluded opinion on the points argued before us which are not necessary for supporting the conclusion reached by us that the entire Tenth Schedule and consequently the Constitution (Fifty-Second Amendment) Act, 1985 is unconstitutional on the view we have taken on the other points. We are, therefore, giving our reasons only in respect of the points decided by us leading to the conclusion we have reached.

At this stage, it would be appropriate to mention the specific stand of the Speakers taken at the hearing. The learned counsel who appeared for the several Speakers clearly stated that they were instructed to apprise us that the Speakers did not accept the jurisdiction of this Court to entertain these matters in view of the complete bar on jurisdiction of the courts enacted in para 7 read with para 6 of the Tenth Schedule. Accordingly, they abstained from addressing us on the merits of the impugned orders which led to these matters being brought in this Court in spite of our repeated invitation to them to also address us on merits in each case, which all the other learned counsel did. No doubt, this Court’s jurisdiction to decide the constitutional validity of the Tenth Schedule was conceded, but no more.

It is in these extra-ordinary circumstances that we had to hear these matters. We need not refer herein to the details of any particular case since the merits of each case are dealt separately in the order of that case. Suffice it to say that the unanimous view of the Bench is that the Speakers’ decision disqualifying a member under the Tenth Schedule is not immune from judicial scrutiny. According to the majority it is subject to judicial scrutiny on the ground of illegality or perversity which in the minority view, it is a nullity liable to be so declared and ignored.

We consider it apposite in this context to recall the duty of the Court in such delicate situations. This is best done by quoting Chief Justice Marshall in Cohens v. Virginia[1821] USSC 18; , 6 Wheat 264, 404, 5 L.Ed.257, 291 [1821], wherein he said :

783 “It is most true, that this Court will not take Jurisdiction if it should not : but it is equally true that it must take jurisdiction if it should.

The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

XXX XXX XXX ….If the question cannot be brought in a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article.

But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend…..” (emphasis supplied) More recently, Patanjali Sastri, CJ., while comparing the role of this Court in the constitutional scheme with that of the U.S. Supreme Court, pointed out in the State of Madras v. V.G. Row [1952] INSC 19; [1952] SCR 597 that the duty of this Court flows from express provisions in our Constitution while such power in the U.S. Supreme Court has been assumed by the interpretative process giving a wide meaning to the “due process” clause. Sastri, CJ., at p.605, spoke thus:

“Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of 784 reviewing legislative acts under cover of the widely interpreted `due process’ clause in the Fifth and Fourteenth Amendments. If,then, the, courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the `fundamental rights’, as to which this court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with legislatures in the country.” (emphasis supplied) We are in respectful agreement with the above statement of Sastri, CJ, and wish to add that even though such an obvious statement may have been necessary soon after the Constitution came into force and may not be a necessary reminder four decades later at this juncture, yet it appears apposite in the present context to clear the lingering doubts in some minds. We have no hesitation in adding further that while we have no desire to clutch at jurisdiction, at the same time we would not be deterred in the performance of this constitutional duty whenever the need arises.

We would also like to observe the unlike England, where there is no written Constitution and Parliament is supreme, in our country there is a written Constitution delineating the spheres of jurisdiction of the legislature and the judiciary whereunder the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court’s verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the court is seized of the matter for pronouncing its verdict and it is the constitutional obligation of every person and authority to accept its binding effect when the decision is rendered by this Court.

It is also to be remembered that in our constitutional scheme based on 785 democratic principles which include governance by rule of law, every one has to act and perform his obligations according to the law of the land and it is the constitutional obligation of this Court to finally say what the law is. We have no doubt that the Speakers and all others sharing their views are alive to this constitutional scheme, which is as much the source of their jurisdiction as it is of this Court and also conscious that the power given to each wing is for the performance of a public duty as a constitutional obligation and not for self-aggrandisement.

Once this perception is clear to all, there can be no room for any conflict.

The Tenth Schedule was inserted in the Constitution of India by the Constitution (Fifty-Second Amendment) Act, 1985 which came into force with effect from 1.3.1985 and is popularly known as the Anti-Defection Law. The Statement of Objects and Reasons says that this amendment in the Constitution was made to combat the evil of political defections which has become a matter of national concern and unless combated, is likely to undermine the very foundations of our democratic system and the principles which sustained it. This amendment is, therefore, for outlawing defection to sustain our democratic principles. The Tenth Schedule contains eight paras. Para 1 is the interpretation clause defining `House’ to mean either House of Parliament or the legislative Assembly or, as the case may be, either House of the Legislature of a State. The expressions `legislature party’ and `original political party’ which are used in the remaining paras are also defined. Para 2 provides for disqualification on ground of defection. Para 3 provides that disqualification on ground of defection is not to apply in case of split indicating therein the meaning of `split.

Para 4 provides that disqualification on ground of defection is not to apply in case of merger. Para 5 provides exemption for the Speaker or the Deputy speaker of the House of the People or of the Legislative Assembly of the State, the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State from the applicability of the provisions of the Tenth Schedule. Para 8 contains the rule making power of the Chairman or the Speaker.

For the purpose of deciding the jurisdiction of this Court and the justiciability of the cause, it is paras 6 and 7 which are material and they read as under:

“6. Decision on questions as to disqualification of ground of defection. – 786

1. If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final :

Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

2. All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature, of a State within the meaning of Article 212.

7. Bar of Jurisdiction on courts.- Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.” We shall now deal with the points involved enumerated earlier.

Points `A’ & `B’ – Paras 6 & 7 of Tenth Schedule In support of the objection raised to the jurisdiction of this Court and the justiciability of the Speaker’s decision relating to disqualification of a member, it has been urged that sub-paragraph (1) of para 6 clearly lays down that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final and sub- paragraph (2) proceeds to say that all proceedings under sub-paragraph (1) ‘shall be deemed to the proceedings in Parliament …… or, ….. proceedings in the Legislature of a State’ within the meaning of Article 122 or Article 212, as the case may be. It was urged that the clear provision in para 6 that the decision of the 787 Chairman/Speaker on the subject of disqualification under this Schedule shall be final and the further provision that all such proceedings `shall be deemed to be proceedings in Parliament …. or, …. proceedings in the Legislature of as State’, within the meaning of Article 122 or Article 212, as the case may be, clearly manifests the intention that the jurisdiction of all courts including the Supreme Court is ousted in such matters and the decision on this question is not justiciable. Further argument is that para 7 in clear words thereafter reiterates that position by saying that `notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. In other words, the argument is that para 6 by itself provides for ouster of the jurisdiction of all courts including the Supreme Court and para 7 is a remanifestation of that clear intent in case of any doubt arising from para 6 alone. On this basis it was urged that the issue raised before us is not justiciable and the Speaker or the Chairman, as the case may be, not being `Tribunal’ within the meaning of that expression used in Article 136 of the Constitution, their decision is not open to judicial review.

In reply, it was urged that finality Clause in sub- paragraph (1) of para 6 does not exclude the jurisdiction of the high Courts under Articles 226 and 227 and of this Court under Article 136. Deeming provision in sub-paragraph (2) of Para 6, it was urged, has the only effect of making it a `proceedings in Parliament’ or `proceedings in the Legislature of a State’ to bring it within the ambit of clause (1) of Articles 122 or 212 but not within clause (2) of these Articles. The expression `proceedings in Parliament’ and `proceedings in the Legislature of a State’ are used only in clause (1) of Articles 122 and 212 but not in clause (2) of either of these Articles, on account of which the scope of the fiction cannot be extended beyond the limitation implicit in the specific words used in the legal fiction. This being so, it was argued that immunity extended only to `irregularity of procedure’ but not to illegality as held in Keshav Singh -[1965] 1 SCR 413. In respect of para 7, the reply is that the expression `no court’ therein must be similarly construed to refer only to the courts of ordinary jurisdiction but not the extra- ordinary jurisdiction of the High Courts under Article 226 & 227 and the Plenary jurisdiction of Supreme Court under Article 136. It was also argued that the Speaker/Chairman while deciding the question of disqualification of member under para 6 exercises a judicial function of the State which otherwise would be vested in the courts and, 788 therefore, in this capacity he acts as `Tribunal amenable to the jurisdiction under Articles 136, 226 and 227 of the Constitution. Shri Sibal also contended that the bar in para 7 operates only at the interim stage, like other election disputes, and not after the final decision under para 6.

The finality clause in sub-paragraph (1) of para 6 which says that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final is not decisive. It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity.

Accordingly, sub-paragraph (1) alone is insufficient to exclude the extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court. The legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or clause (1) 212, as the case may be since the expressions used in sub-paragraph (2) of para 6 of the tenth Schedule are `shall be deemed to be proceedings in Parliament’ or `proceedings in the Legislature of a State’ and such expressions find place both in Articles 122 and 212 only in clause (1) and not clause (2) thereof. The ambit of the legal function must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. It is also settled that a matter falling within the ambit of clause (1) of either of these two Article is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of `irregularity of procedures’.

To overcome this result, it was argued that such matter would fall within the ambit of Clause (2) of both Articles 122 and 212 because the consequence of the order of disqualification by the Speaker/Chairman would relate to the conduct of business of the House. In the first place, the two separate clauses in Articles 122 and 212 clearly imply that the meaning and scope of the two cannot be identical even assuming there be some overlapping area between them.

What is to be seen is the direct impact of the action and its true nature and not the further consequences flowing therefrom. it cannot be doubted in view of the clear language of sub-paragraph (2) of para 6 that it relates to clause (1) of both Articles 122 and 212 and the legal fiction cannot, therefore, be extended beyond the limits 789 of the express words used in the fiction. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. The fiction in para 6(2) is a limited one which serves its purpose by confining it to clause (1) alone of Articles 122 and 212 and, therefore,, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles. See Commissioner of Income-tax v. Ajax Products Ltd., [1964] INSC 224; [1965] 1 SCR 700.

Moreover, it does appear to us that the decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of Clause (1) only of Articles 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and, therefore, justiciable to that extent.

It is, therefore, not possible to uphold the objection of jurisdiction on the finality clause or the legal fiction created in para 6 of the Tenth Schedule when justiciability of the clause is based on a ground of illegality or perversity (see Keshav Singh – [1964] INSC 209; [1965] 1 SCR 413). This in our view is the true construction and effect of para 6 of Tenth Schedule.

We shall now deal with para 7 of the Tenth Schedule.

The words in para 7 of the Tenth Schedule are undoubtedly very wide and ordinarily mean that this provision supersedes any other provision in the Constitution. This is clear from the use of the non obstinate clause `notwithstanding anything in this Constitution’ as the opening words of para 7. The non obstinate clause followed by the expression `no court shall have any jurisdiction’leave no doubt that the bar of jurisdiction of courts contained in para 7 is complete excluding also the jurisdiction of the Supreme court under Article 136 and that of the High Courts under Articles 226 and 227 of the Constitution relating to matters covered by para 7. The question, therefore, is of the scope of para 7.

The scope of para 7 for this purpose is to be determined by the expression `in respect of any matter connected with disqualification of a member of a House under this Schedule’.

790 One of the constructions suggested at the hearing was that this expression covers only the intermediate stage of the proceedings relating to disqualification under para 6 and not the end stage when the final order is made under para 6 on the question of disqualification. It was suggested that this construction would be in line with the construction made by this Court in its several decisions relating to exclusion of Courts’ jurisdiction in election disputes at the intermediate state under Article 329 of the Constitution. This construction suggested of para 7 does not commend to us since it is contrary to the clear and unambiguous language of the provision. The expression `in respect of any matter connected with the disqualification of a member of a House under this Schedule’ is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under para 6 which is undoubtedly such a matter. There is thus express exclusion of all courts’ jurisdiction even in respect of the final order.

As earlier indicated by virtue of the finality clause and the deeming provision in para 6, there is exclusion of all courts’ jurisdiction to a considerable extent leaving out only the area of justiciability on the ground of illegality or perversity which obviously is relatable only to the final order under para 6. This being so, enactment of para 7 was necessarily made to bar the jurisdiction of courts also in respect of matters falling outside the purview of the exclusion made by para 6. para 7 by itself and more so when read along with para 6 of the Tenth Schedule, leaves no doubt that exclusion of all courts’ jurisdiction by para 7 is total leaving no area within the purview, even of the Supreme Court or the High Courts under Articles 136 , 226 and 227. The language of para 7 being explicit, no other aid to construction is needed. Moreover, the speech of the Law Minister who piloted the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha as well as the debate on this subject clearly show that these provisions were enacted to keep the entire matter relating to disqualification including the Speakers’ final decision under para 6 on the question of disqualification, wholly outside the purview of of all courts including the Supreme Court and the High Courts. The legislative history of the absence of such a provision excluding the courts’ jurisdiction in the two earlier Bills which lapsed also re- inforces the conclusion that enactment of para 7 was clearly to provide for total ouster of all courts’ jurisdiction.

791 In the face of this clear language, there is no rule of construction which permits the reading of para 7 in any different manner since there is no ambiguity in the language which is capable of only one construction, namely, total exclusion of the Jurisdiction of all courts including that of the Supreme Court and the High Courts under Articles 136, 226 and 227 of the Constitution in respect of every matter connected with the disqualification of a member of a House under the Tenth Schedule including the final decision rendered by the Speaker/Chairman, as the case may be. Para 7 must, therefore, be read in this manner alone.

The question now is of the effect of enacting such a provision in the Tenth Schedule and the applicability of the proviso to clause (2) of Article 368 of the Constitution.

Point `C’ – Applicability of Article 368(2) Proviso The above construction of para 7 of the Tenth Schedule gives rise to the question whether it thereby makes a change in Article 136 which is in Chapter IV of part V and Articles 226 and 227 which are in Chapter V of Part VI of the Constitution. If the effect of para 7 is to make such a change in these provisions so that the proviso to clause (2) of Article 368 is attracted, then the further question which arises is of the effect on the Tenth Schedule of the absence of ratification by the specified number of State Legislatures, it being admitted that no such ratification of the Bill was made by any of the State Legislatures.

Prima facie it would appear that para 7 does seek to make a change in Articles 136 , 226 and 227 of the Constitution inasmuch as without para 7 in the Tenth Schedule a decision of the Speaker/ Chairman would be amenable to the jurisdiction of the Supreme Court under Article 136 and of the high Courts under Articles 226 and 227 as in the case of decisions as to other disqualifications provided in clauses (1) of Article 102 or 191 by the President/Governor under Article 103 or 192 in accordance with the opinion of the Election Commission which was the Scheme under the two earlier Bills which lapsed.

However, some learned counsel contended placing reliance on Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1951] INSC 45; [1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1964] INSC 246; [1965] 1 SCR 933 that the effect of such total exclusion of the jurisdiction of the Supreme Court and the High Courts does not make a change in Articles 136, 226 and 227. A close reading of these decisions indicates that instead 792 of supporting this contention, they do infact negative it.

In Sankari Prasad, the challenge was to Articles 31A and 31B inserted in the Constitution by the Constitution (First Amendment) Act, 1951. One of the objections was based on absence of ratification under Article 368. While rejecting this argument, the Constitution Bench held as under:- “It will be seen that these Articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under article 13. It is not correct to say that the powers of the High Court under article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before : only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extend, but because there would be no occasion hereafter for the exercise of their powers in such cases.” [emphasis supplied] The test applied was whether the impugned provisions inserted by the Constitutional Amendment did `either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136′. Thus the change may be either in terms i.e. explicit or in effect in these Articles to require ratification. The ground for rejection of the argument therein was that the remedy in the courts remained unimpaired and unaffected by the change and the change was really by extinction of the right to seek the remedy. In other words, the change was in the right and not the remedy of approaching the court since there was no occasion to invoke the remedy, the right itself being taken away. To the same effect is the decision in Sajjan Singh, wherein Sankari Prasad was followed stating clearly that there was 793 no justification for reconsidering Sankari Prasad.

Distinction has to be drawn between the abridgement or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgement or extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy. To this situation, Sankari Prasad and Sajjan Singh apply. On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that the cause of action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting right. To this latter category, Sankari Prasad and Sajjan Singh have no application. This is clear from the above-quoted passage in Sankari Prasad which clearly brings out this distinction between a change in the right and a change in the remedy.

The present case, in unequivocal terms, is that of destroying the remedy by enacting para 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualifications specified in clause (1) of Articles 102 and 191, which remedy continues to subsist.

Thus, this extinction of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does required adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.

On this conclusion, it is undisputed that the proviso to clause (2) of Article 368 is attracted requiring ratification by the specified number of State Legislatures before presentation of the Bill seeking to make the constitutional amendment to the President for his assent.

Point `D’ – Effect of absence of ratification 794 The material part of Article 368 is as under :

“368. Power of Parliament to amend the Constitution and Procedure therefore. – (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent Power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill, for the purpose in either House of parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill :

Provided that if such amendment seeks to make any change in – (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent.” (emphasis supplied) it is clause (2) with its proviso which is material.

The main part of clause (2) prescribes that a constitutional amendment can be initiated only by the introduction of a Bill for the purpose and when the Bill is passed 795 by each House by a majority of the total membership of that House and by a majority of not less than tow-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill. In short, the Bill not being passed by the required majority is presented to the President for his assent to the Bill and on giving of the assent, the Constitution stands amended accordingly.

Then comes, the proviso which says that `if such an amendment seeks to make any change’ in the specified provisions of the Constitution, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. In other words, the proviso contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State legislatures before Presentation of the Bill to the President for his assent in the case of such Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for his assent, which assent results in the Constitution automatically standing amended in accordance with terms of the Bill.

Thus, the Bills governed by the proviso cannot be presented to the President for his assent without the prior ratification by the specified number of State Legislatures or in other words, such ratification is a part of the special procedure or a condition precedent to presentation of the Bill governed by the proviso to the President for his assent. It logically follows that the consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature of not less than one-half of the States.

The constituent power for amending the Constitution conferred by Article 368 also prescribes the mandatory procedure in clause (2) including its proviso, for its exercise. The constituent power cannot, therefore, be exercised in any other manner and non-compliance of the special procedure 796 so prescribed in Article 368 (2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill since that result ensues only at the end of the prescribed mandatory procedure and not otherwise. The substantive part of Article 368 which provides for the resultant amendment is the consequence of strict compliance of the mandatory special procedure prescribed for exercise of the constituent power and that result does not ensue except in the manner prescribed.

The true nature and import of the amending power and procedure under Article 368 as distinguished from the ordinary legislative procedure was indicated in Kesavananda Bhartim[1973] Supp. SCR 1 at pp. 561, 563 & 565 :

“….Under Article 368 However, a different and special procedure is provided for amending the constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rds majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible. In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament.

Secondly in certain matters the State Legislatures are involved in the process of making the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our Constitution is a `rigid’ or `controlled’constitution because the Constituent Assembly has “left a special direction as to how the constitution is to be changed. In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the 797 constitution or, in other words, it writes itself into the constitution.” XXX XXX XXX “…. But when it comes to the amendment of the Constitution, a special procedure has been prescribed in Article 368, Since the result of following the special procedure under the Article is the amendment of the constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of the amending the constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the `proposed amendment shall become part of the constitution, which is the substantive part of Article 368.

Therefore, the peculiar or special power to amend the constitution is to be sought in Article 368 only and not elsewhere.” XXX XXX XXX “….The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transport the proposed amendment into the constitution and gives it equal status with the other parts of the constitution.” (emphasis supplied) Apart from the unequivocal language of clause (2) including the proviso therein indicating the above result of prior ratification being a part of the special procedure or condition precedent for valid assent of the President, the same result is reached even by another route. The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part. The main enacting part of clause (2) lays down that on a Bill for a constitutional amendment being passed in each House by a requisite majority, it shall be presented to the President for his assent and on the assent being given , the Constitution shall stand amended in accordance 798 with the terms of the Bill. The proviso then carves out the exception in case of Bills seeking to make any change in the specified Articles of the Constitution prescribing that in the case of those Bills, prior ratification by the Legislatures of not less than one-half of the States is also required before the Bill is presented to the President for assent. This means that a Bill falling within the ambit of the proviso is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the Constitution on the President’s assent without prior ratification by the specified number of State Legislatures. The proviso in clause (2) is enacted for and performs the function of a true proviso by qualifying the generality of the main enactment in clause (2) in providing an exception and taking out of the main enactment in clause (2) such Bills which but for the proviso would fall within the main part. Not only the language of the main enactment in clause (2) and the proviso thereunder is unequivocal to give this clear indication but the true role of a proviso, the form in which the requirement of prior ratification if such a Bill by the State Legislatures is enacted in Article 368 lend further assurance that this is the only construction of clause (2) with its proviso which can be legitimately made. If this be the correct constructions of Article 368 (2) with the proviso as we think it is, then there is no escape from the logical conclusion that a Bill to which the proviso applies does not result in amending the Constitution in accordance with its terms on assent of the President if it was presented to the President for his assent and the President gave his assent to the Bill without prior ratification by the specified number of the State Legislatures. This is the situation in the present case.

Thus the requirement of prior ratification by the State Legislatures is not only a condition precedent forming part of the special mandatory procedure for exercise of the constituent power and a constitutional limitation thereon but also a requirement carving out an exception to the general rule of automatic amendment of the Constitution on the President’s assent to the Bill.

In other words, clause (2) with the proviso therein itself lays down that President’s assent does not result in automatic amendment of the Constitution in case of such a Bill it was not duly ratified before presentation to the President for his assent. Nothing more is needed to show that not only para 7 of the Tenth Schedule but the entire Constitution (Fifty- 799 Second Amendment) Act, 1985 is still born or an abortive attempt to amend the Constitution for want of prior ratification by the State Legislatures of the Bill before its presentation to the President for his assent.

The result achieved in each case is the same irrespective of the route taken. If the route chosen is for construing the language of clause (2) with the proviso merely a part of it, the requirement or prior ratification is a condition precedent forming part of the special mandatory procedure providing that the constituent power in case of such a Bill can be exercised in this manner alone, the mode prescribed for other Bills being forbidden. If the route taken is of treating the proviso as carving out an exception from the general rule which is the normal role of a proviso, then the result is that the consequence of the Constitution standing amended in terms of the provisions of the Bill on the President’s assent as laid down in the main part of clause (2) does not ensue without prior ratification in case of a Bill to which the proviso applies. There can thus be no doubt that para 7 of the Tenth Schedule which seeks to make a change in Article 136 which is a part of Chapter IV of Part V and Articles 226 and 227 which form part of Chapter V of Part VI of the Constitution, has not been enacted by incorporation in a Bill seeking to make the constitutional Amendment in the manner prescribed by clause (2) read with the proviso therein of Article 368. Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the Constitutional Amendment. The further question now is: its effect on the validity of the remaining part of the Tenth Schedule and consequently the Constitution (Fifty-Second Amendment) Act, 1985 itself.

Point `E’ – Severability of para 7 of Tenth Schedule The effect of absence of ratification indicated above suggests inapplicability of the Doctrine of Severability.

In our opinion, it is not para 7 alone but the entire Tenth Schedule may the Constitution (Fifty-Second Amendment) Act, 1985 itself which is rendered unconstitutional being an abortive attempt to so amend the Constitution. It is the entire Bill and not merely rely para 7 of the Tenth Schedule therein which required prior ratification by the State Legislatures before its presentation to the President for his assent, it being a joint exercise by the Parliament and State Legislatures. The stage for presentation of Bill to the President for his assent not having 800 reached, the President’s assent was non est and it could not be result in amendment of the Constitution in accordance with the terms of the Bill for the reasons given earlier.

Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President’s assent and, therefore, no such severance can be made even for the ensuing result. If the President’s assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a difference result with regard to the remaining part of the Bill.

On this view, the question of applying the Doctrine of Severability to strike down para 7 alone retaining the remaining part of Tenth Schedule does not arise since it presupposes that the Constitution stood so amended on the President’s assent. The Doctrine does not apply to a still born legislation.

The Doctrine of Severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a valid provisions a viable whole. This doctrine has no application where the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power.

It is not possible to infuse life in a still born by any miracle of deft surgery even though it may be possible to continue life by removing a Congenitally defective part by surgical skill. Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in the case of still birth.

With respect, the contrary view does not give due weight to the effect of a condition precedent forming part of the special procedure and the role of a proviso and results in rewriting the proviso to mean that ratification is not a condition precedent but merely an additional requirement of such a Bill to make that part effective.

This also fouls with the expression `Constitution shall stand amended…..’ on the assent of President which is after the stage when the amendment has been made and ratified by the State Legislatures as provided. The historical background of drafting the proviso also indicates the significance attached to prior ratification as a condition precedent for valid exercise of the constituent power.

We are unable to read the Privy Council decision in The Bribery Commissioner V. Pedrick Ranasinghe [1964] UKPC 1; [1965] AC 172 as an authority to 801 support applicability of the Doctrine of Severability in the Present case. In Kesavananda Bharati, the substance of that decision was indicated by Mathew, J., at p. 778 of S.C.R., thus:

“…. that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its constitution power it was subject to the special procedure laid down in s, 29 (4)…..” While section 29(4) of Ceylon (Constitution) Order was entirely procedural with no substantive part therein, Article 368 of the Indian Constitution has also a substantive part as pointed out in Kesavananda Bharati.

This distinction also has to be borne in mind.

The challenge in Ranasinghe was only to the legality of a conviction made under the Bribery Act, 1954 as amended by the Bribery Amendment Act, 1958 on the ground that the Tribunal which had made the conviction was constituted under section 41 of the Amending Act which was invalid being in conflict with section 55 of the Constitution and not being enacted by exercise of constituent power in accordance with section 29(4) of the Ceylon (Constitution) Order. Supreme Court of Ceylon quashed the conviction holding section 41 of the Amending Act to be invalid for this reason. The Privy Council affirmed that view and in this context held that section 41 could be severed from rest of the Amending Act.

Ranasinghe was not a case of a Bill passed in exercise of the constituent power without following the special procedure of section 29(4) but of a Bill passed in exercise of the ordinary legislative power containing other provisions which could be so enacted, and including therein section 41 which could be made only in accordance with the special procedure of section 29(4) of the Constitution. The Privy Council made a clear distinction between legislative and constituent powers and reiterated the principles thus:

“….The effect of section 5 of the Colonial Laws Validity Act, which is framed in a manner somewhat similar to section 29(4) of the Ceylon Constitution was that where a legislative power is given subject to certain manner and form, that power does not exist unless and until the manner and form is complied with Lord Sankey L.C. said :

“A Bill, within the scope of sub-section (6) of section 7A, which received the Royal Assent without having been approved by 802 the electors in accordance with that section, would not be a valid act of the legislature. It would be ultra vires section 5 of the Act of 1865.” The Bribery Amendment Act, 1958, in Ranasinghe, was enacted in exercise of the ordinary legislative power and therein was inserted section 41 which could be made only in exercise of the constituent power according to the special procedure prescribed in section 29(4) of the Ceylon (Constitutions) Order. In this situation, only section 41 of the Amending Act was held to be invalid and severed because the special procedure for the constituent power was required only for that provision and not the rest. In the instant case the entire Tenth Schedule is enacted in exercise of the Constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed. It is, therefore, not a case of severing the invalid constituent part from the remaining ordinary legislation.

Ranasinghe could have application if in an ordinary legislation outside the ambit of Article 368, a provision which could be made only in exercise of the constituent power according to Article 368 had been inserted without following the special procedure, and severance of the invalid constituent part alone was the question. Ranasinghe is, therefore, distinguishable.

Apart from inapplicability of the Doctrine of Severability to a Bill to which the proviso to clause (2) of Article 368 applies, for the reasons given, it does not apply in the present case to strike down para 7 alone retaining the remaining part of the Tenth Schedule. In the first place, the discipline for exercise of the constituent power was consciously and deliberately adopted instead of resorting to the mode of ordinary legislation in accordance with sub-clause (e) of clause (1) of Articles 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualifications. Moreover, even the test applicable for applying the Doctrine of Severability to ordinary legislation as summarised in R.M.D.

Chamarbaughwalla v. The Union of India, [1957] INSC 32; [1957] S.C.R. 930, indicates that para 7 alone is not severable to permit retention of the remaining part of the Tenth Schedule as valid legislation. The settled test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it. This intention is manifest throughout and 803 evident from the fact that but for para 7 the enactment did not require the discipline of Article 368 and exercise of the constituent power. Para 7 follows para 6 the contents of which indicate the importance given to para 7 while enacting the Tenth Schedule. The entire exercise, as reiterated time and again in the debates, particularly the Speech of the Law Minister while piloting the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha, was to emphasise that total exclusion of judicial review of the Speaker’s decision by all courts including the Supreme Court, was the prime object of enacting the Tenth Schedule.

The entire legislative history shows this. How can the Doctrine of Severability be applied in such a situation to retain the Tenth Schedule striking down para 7 alone ? This is further reason for inapplicability of this doctrine.

Point `F’- Violation of basic features The provisions in the Tenth Schedule minus para 7, assuming para 7 to be severable as held in the majority opinion, can be sustained only if they do not violate the basic structure of the Constitution or damage any of its basic features. This is settled by Kesavananda Bharti [1973] Supp. S.C.R. 1. The question, therefore, is whether there is violation of any of the basic features of the Constitution by the remaining part of the Tenth Schedule, even assuming the absence of ratification in accordance with the proviso to clause (2) of Article 368 results in invalidation of para 7 alone.

Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the Postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.

It is only by a fair adjudication of such disputes relating to validity of electrons and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured. In the democratic pattern adopted in our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is by the President/Governor in accordance with the opinion of the Election Commission. The constitutional scheme, therefore, for decision on questions as to disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority out 804 side the House, namely, President/Governor in accordance with the opinion of the Election Commission, all of whom are high constitutional functionaries with security of tenure independent of the will of the House. Sub-clause (e) of clause (1) in Articles 102 and 191 which provides for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of clause (1), clearly indicates that all disqualifications of members were contemplated within the scope of Articles 102 and 191. Accordingly, all disqualifications including disqualification on the ground of defection, in our constitutional scheme, are different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment. It is undisputed that the disqualification on the ground of defection could as well have been prescribed by an ordinary law made by the Parliament under Articles 102 (1) (e) and 191 (1) (e) instead of by resort to the constituent power of enacting the Tenth Schedule. This itself indicates that all disqualifications of members according to the constitutional scheme were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary,, the Election Commission of India, who enjoys the security of tenure of tenure of a Supreme Court judge with the same terms and conditions of office. Thus, for the purpose of entrusting the decision of the question of disqualification of a member, the constitutional scheme envisages an independent authority outside the House and not within it, which may be dependent on the pleasure of the Majority in the House for its tenure.

The Speaker’s office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of members to the Speaker; and provision was made in Articles 103 and 192 for decision of such disputes by the President/Governor in accordance with the opinion of the Election Commission. To reason is not far to seek.

The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision 805 to be rendered in consonance with the scheme for adjudication of disputes. Rule of law has in it firmly entrenched, natural justice, of which, rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are; Nemo judex in causa sua – `A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’; and `it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ This appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy.

There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court its outside the judiciary in the Parliament under Article 124(4). On the same principle the authority to decide the question of disqualification of a member of legislature is outside the House as envisaged by Articles 103 and 192.

In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality.

It is the Vice-President of India who is ex-officio chairman of the Rajya Sabha and his position, being akin to that of the President of India, is different from that of the Speaker. Nothing said herein relating to the office of the Speaker applies to the Chairman of the Rajya Sabha, that is, the Vice-President of India. However, the only authority named for the Lok Sabha and the Legislative Assemblies is the Speaker of the House and entrustment of this adjudicatory function fouls with the constitutional scheme and, therefore, violates a basic feature of the Constitution. Remaining part of the Tenth Schedule also is rendered invalid notwithstanding the fact that this defect would not apply to the Rajya Sabha alone whose Chairman is the Vice-President of India, since the Tenth Schedule becomes 806 unworkable for the Lok Sabha and the State Legislatures.

The Statutory exception of Doctrine of Necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options.

Since the conferment of authority is on the Speaker and that provision cannot be sustained for the reason given, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute.

Thus, even if the entire Tenth Schedule cannot be held unconstitutional merely on the ground of absence of ratification of the Bill, assuming it is permissible to strike down para 7 alone, the remaining part of the Tenth Schedule is rendered unconstitutional also on account of violation of the aforesaid basic feature. Irrespective of the view on the question of effect of absence of ratification, the entire Tenth Schedule must be struck down as unconstitutionally.

Point `G’ – Other contentions We have reached the conclusion that para 7 of the Tenth Schedule is unconstitutional; that the entire Tenth Schedule is constitutionally invalid in the absence of prior ratification in accordance with the proviso to clause (2) of Article 368; that the Doctrine of Severability does not apply in the present case of a constitutional amendment which suffers from the defect of absence of ratification as required by the proviso to clause (2) of Article 368; that the remaining part of the Tenth Schedule minus para 7 is also unconstitutional for violation of a basic feature of the Constitution; and that the entire Tenth Schedule is, therefore, constitutionally invalid rendering the Constitution (Fifty-Second Amendment) Act, 1985 still born and an abortive attempt to amend the constitution. In view of this conclusion, it is not necessary for us to express our concluded opinion on the other grounds of challenge to the constitutional validity of the entire Tenth Schedule urged at the hearing on the basis of alleged violation of certain other basic features of the Constitution including the right of members based on Article 105 of the Constitution.

These are our detailed reasons for the operative conclusions pronounced by us earlier on November 12, 1991.

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At, High Court of Judicature at Bombay

By, THE HONOURABLE MR. JUSTICE B.N. SRIKRISHNA

Anil Diwan with N.G. Thakkar and T.K. Cooper i/by M/s. Mehta and Girdharlal, for defendants. S.H. Doctor with Y.B. Pandya i/b. M/s. Pandya and Poonawala, for plaintiffs to show cause.

Judgment

B.N. SRIKRISHNA, J

1. This chamber summons has been taken out by the defendants, seeking the relief that the ex parte decree dated 5th November, 1990, made by Agarwal, J., be declared to be a nullity and/or non executable with the further prayer that the said ex parte decree be set aside.

2. The facts leading to the present chamber summons indicate the considerable legal ingenuity which has gone into avoiding the day of reckoning. They are:

(a) The plaintiffs are financial institutions, which had advanced large sums of money to a Company known as Krimpex Synthetics Ltd., of which the defendants are Directors. While the first plaintiffs had advanced a sum of Rs. 87 lacs, the second plaintiffs had advanced a sum of Rs. 58 lacs. Usual agreements for compounding the interest were entered into between the said Company and the two plaintiffs. The loans were advanced not only against security of the plant, machinery, building and land of the said Company, but were also collaterally guaranteed by personal guarantees given by the defendants in the capacity of Directors of the said Company. The Company defaulted in making payment, and the plaintiffs became entitled, under their respective agreements, to enforce their debts forthwith. The plaintiffs filed a suit against the principal debtor-company on the basis of the mortgage-deeds and they also filed a summary suit, being Summary Suit No. 1935 of 1989, against the present defendants, based upon the guarantees.

(b) The details of the amounts claimed in the summary suit have some relevance, and, therefore, they need to be set out.

(i) The first plaintiffs claimed a sum of Rs. 1,11,30,538/- in the suits, the break-up of which was as under:–

Rs.

Principal sum 87,00,000.00 Simple Interest 21,13,486.00 Compound Interest 2,98,999.00 Other costs (Liquid-ated Damages) 18,053.00 1,11,30,538.00

(ii)The second plaintiffs claimed a total sum of Rs. 73,98,866/-, which comprised the following:

Rs.

Principal Outstanding 58,00,000.00 Simple Interest 13,93.347.00 Compound Interest 1,93,784.00 Liquidated Damages 11,735.00 73,98,866.00

(c) The plaintiffs also prayed for further interest at the rate of 12% per annum from the date of filing of the suit until payment of both the said sums.

(d) Summonses for judgment were taken out against the defendants. By an order dated 16th January, 1990, Variava, J., granted leave to the defendants to defend the suit, conditional upon depositing Rs. 50 lacs within a period of six months. The defendants appealed against the said order granting them conditional leave, and their appeal No. 567 of 1990, was summarily dismissed on 25th June, 1990, by the Division Bench (Mukherjee, C.J., and Bharucha, J.).

(e) On 20th July, 1990, the Prothonotary & Senior Master certified that the deposit, as required under the order of Variava, J., had not been made.

(f) In the meanwhile, the plaintiffs had, carried an appeal under Art, 136 of the Constitution, of India, to the Supreme Court of India, and the said appeal came to be dismissed by the Supreme Court on 26th July, 1990, wherein the Supreme Court made only a modification in the order to the effect that the defendants were permitted to furnish Bank Guarantee in the sum of Rs. 50 lacs, instead of depositing the said amount, within 8 weeks from the date of the said order, i.e., 26th July, 1990.

(g) the defendants failed to furnish the Bank Guarantee within the period prescribed by the Supreme Court.

(h) The plaintiffs obtained a Certificate of the Prothonotary dated 12th October, 1990, to this effect, and moved the learned Chamber Judge for an ex parte decree.

(i) On 5th November, 1990, the learned Chamber Judge (Agarwal, J.) made an order granting a decree as prayed, together with costs quantified at Rs. 10,001/-. A further order was made by the learned Chamber Judge on 7th October, 1991, for the issue of certified copy of the decree expeditiously.

(j) When the decree was to be drawn up and certified, the office objected to the draft decree as drawn up on the ground that the decree granted interest upon interest and that it was not permissible. The plaintiffs, therefore, moved the learned Chamber Judge, and, by an order dated 10th July, 1991, Agarwal, J., directed the Office of the Prothonotary and Senior Master to draw the decree in terms of prayer contained in the plaint.

(k) The decree was finally drawn up on 1st August, 1991. The drawn up decree, undoubtedly, directs payment of the amounts, referred to hereinabove, to the respective plaintiffs, and further directs interest at 121/2 per annum thereupon from the date of the filing of the suit until recovery.

(l) In the meanwhile, a Full Bench of this Court (Sukumaran, Saraf and Cazi, JJ.) decided in Union Bank of India y. Dalpat Gaurishankar Upadyay, ; the issue as to whether S. 34 of the Code of Civil Procedure, 1908, empowers the Court to direct payment of interest, which might have been claimed up to the date of the suit as part of the decretal amount. I shall have occasion to refer to this judgment in detail, but, for the present, continuing the narration of events, it might be pointed out that the Full Bench took the view that S. 34 of the Code of Civil Procedure did not empower the Court to grant interest upon interest, and that the expression “principal sum” used in S. 34, must be restricted to the original sum which was due, without adding the interest calculated thereupon up to the date of the suit.

(m) On 27th August, 1991, the plaintiffs took out Insolvency Notice No. 108 of 1991, and had it served on the judgment-debtors (the defendants).

(n) On 7th October, 1991 the defendants took out notice of motion to set aside the said insolvency notice by their Notices of Motion 107 of 1991 and 108 of 1991, which are still pending before the Insolvency Court.

(o) On 28th April, 1992, the defendants took out a draft notice of motion for setting aside the ex parte decree as well as for interim order staying the decree, pending hearing and disposal. The draft notice of motion was moved before Dhanuka, J., for ad-interim reliefs on 28th April, 1992, and the learned Judge was of the view that the appropriate remedy was by way of a chamber summons, and, accordingly, the said notice of motion was directed to be converted into the chamber summons, which is the present chamber summons. The present chamber summons was moved before me also on an earlier occasion for ad-interim relief, which I have refused.

(p) I may mention here that, though the defendants carried the matter of the order of conditional leave to defend all the way to the Supreme Court, for reasons known to them, they did not appeal against the ex parte order dated 5th November, 1990, passed by Agarwal, J., which has become final and binding.

3. The main contention of the defendants, vigorously canvassed by Mr. Diwan, learned counsel for the defendants, is that the decree dated 1st August, 1991, based on the ex parte order dated 5th November, 1990, of Agarwal, J., is a nullity, is nonest, and, therefore, despite the fact that the decree might have become otherwise final and conclusive, the defendants are entitled to challenge it, wherever and whenever the said decree is sought to be enforced against them. One of the modes of enforcing the decree is by taking out an insolvency notice, which has been done by the plaintiffs; the defendants contend that they arc entitled to object to a decree, which is non est and a nullity, wherever and whenever it is sought to be relied upon. Consequently, the defendants have moved this Court for a declaration that the decree is a nullity and non est.

4. Mr. Diwan contended that three questions basically arise in the present proceedings :

(a) Whether the Court can, in exercise of its powers under S.34 of the Code of Civil Procedure, direct interest to be awarded upon interest in a claim before it?

(b) If not, what is legal status of an order or decree awarding interest, not on the principal sum, but also on the interest claimed up to the date of the suit?

(c) Whether the defendants are entitled to raise this question at this juncture?

5. There is also an incidental question of delay, which is the subject-matter of prayer (a) in the chamber summons, which is easily disposed of.

6. It is the case of the defendants, as made out in the affidavit-in-support, that they came to know of the judgment of the Full Bench only by a newspaper report, which appeared in “The Economic Times” of the 23rd April, 1992, and immediately thereafter, they have taken out the draft notice of motion on 24th April, 1992, and, therefore, there is no delay. I am not inclined to hold against the defendants on the question of delay. I hold that the chamber summons is not likely to be dismissed on this ground alone, as the delay, if any, is liable to be condoned in the facts and circumstances of the case.

7. The first question raised by the learned counsel for the defendants has been settled by the Full Bench judgment of this Court in Dalpat’s case (supra). Expatiating on this contention, Mr. Diwan contended that S.34 of the Code of Civil Procedure, as interpreted in Dalpat’s case, puts a fetter on the Court’s power to award interest upon interest. If a Court were to make a decree contrary to the law as laid down by the Full Bench (which must be taken to have been so laid down as from the date on which S.34, as amended, stands on the statute book), such a decree is not merely erroneous, but one without jurisdiction, made by a Corum non judice, and, hence, the decree would be a nullity or non est. Such a decree, made by a Coram non judice, can be challenged, wherever and whenever it is sought to be relied upon. This is the crux of the argument of Mr. Diwan, in support of which, the learned counsel cited a number of authorities; which shall presently be noticed.

8. In Sushil Kumar Mehta v. Gobind Ram Bohra, , the Supreme Court’ was confronted with somewhat similar arguments. There was certain municipal land, on which some structures were constructed by a lessee, and the small portion in front of the building was left as open land. The lessor moved the Civil Court and obtained a decree for eviction. On appeal, the High Court took the view that the provisions of the Haryana Urban (Control of Rent and Eviction) Act? 1973 were applicable to the premises, and, as such, the Civil Court had no jurisdiction, whatsoever, to make a decree for eviction. The matter came up to the Supreme Court in appeal. The Supreme Court accepted the contention of the respondent that the Rent Control Restriction Act applied to the premises. After examining the provisions of the said Rent Control Legislation, the Supreme Court also took the view that the jurisdiction of the Civil Court was barred and exclusive jurisdiction was vested in the special forum created under the special Act, which could exercise the power of eviction of a tenant protected by the Act only in accordance with the stringent provisions of the Act, The Supreme Court, consequently, held that the decree made by the Civil Court was a total nullity, as the Civil Court completely lacked jurisdiction to make such a decree; that the issue between the parties was not res judicata, as an issue of jurisdiction did not bind the parties merely because the Court had taken an erroneous view of law and usurped the jurisdiction.

9. The Supreme Court, reiterating the principle laid down in an earlier judgment in Vasude v. Dhanjibhai Modi v.Rajabhai Abdul Rehman, , held that a decree, even if it be erroneous, is still binding between the parties, and it could be objected to in execution or collateral proceedings if the decree’ was passed by a Court which totally lacked jurisdiction, such objection as to basic lack of jurisdiction being incurable even by consent of parties or by resort to the principle of estoppel, Mr. Diwan has highlighted, rightly, the observations in paragraph 26 of the judgment (in the Supreme Court Report) as laying down the law. The law is laid down in the following words:–

“26. Thus it is settled law that normally a decree passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parlies, operates as res – judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Us validity should be assailed-only in an appeal or revision as the case may be. In subsequent proceedings, its validity cannot be questioned. A decree passed by a Court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a Court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party. If the Court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under S. 11, C.P.C. is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontesled becomes final and binds the parties or persons claiming under them. Thus the decision of a competent Court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious: a pure right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a Court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a Court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a Court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the Court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction.”

10. Relying strongly upon the law laid down in Sushil Kumar’s case (supra), Mr. Diwan contends that the decree made in the case of the defendants is not merely vitiated by an error of law but is completely non est and a nullity, as it has been made by a Court which lacks the basic jurisdiction or power to make the decree, and, further, such Court would be Coram non judice, as explained by the Supreme Court in Sushil Kumar’s case. This contention needs an in-depth and critical examination.

11. The defendants have also relied on Bahadur Singh v. Muni Subrat Dass ; K. K. Chari v. R. M. Sheshadri, ; Kaushalya Devi v. K.I. Bansal, ; Nagindas v. Dalpatram, . Isabella Jahnion v. M. A. Susai and Gnanendra Mohao Bhadun v. Rabindra Nath Chakravarty in support.

12. Bahadur Singh’s case (supra) was a case where a dispute between a landlord and tenant was referred to arbitration, and an award was made directing the tenant to occupy the property for seeking time and thereafter to vacate the same. The award was filed in Court, and a decree was obtained in terms of the award. When the decree was sought to be executed, the tenant objected to it on the ground, inter alia, that the decree was invalid and void, as, it had been passed in contravention of the provisions of the Delhi and Amjer Rent Control, Act, 1952 and, Therefore, the landlord could not execute the decree. In upholding this contention, the Supreme Court held that, under the applicable Rent Control Act, the Court was prohibited from passing a decree for order of recovery of possession of any premises in favour of the landlord against a tenant, except in such suit or proceedings instituted by the landlord against the tenant for recovery of possession on one of the grounds stated therein, and unless the Court was satisfied that the ground of eviction existed. Since the decree, on the face of it, did not comply with the provisions of the Delhi and Ajmer Rent Control Act, the Supreme Court held that the decree was a nullity, and, therefore, it could be validly objected to during the execution proceedings.

13. Chari’s case (supra) was also a case under the Rent Control Legislation as applicable in Tamil Nadu. There also a compromise decree for eviction of the tenant had been made. The decree and the record, per se, did not indicate that one of the statutory grounds for eviction of the tenant existed. The Supreme Court, therefore, held that such a decree was prohibited under the applicable Rent Control Legislation, and, therefore, the Court could not have made a decree in terms of the compromise in the absence of the existence of a statutory ground, which was neither admitted nor clearly demonstrable from the records. The decree was therefore, held to be a nullity and capable of being objected to in execution.

14. Kaushalya Devi’s case (supra) was also a case of similar nature where the provisions of the Delhi and Ajmer Rent Control Act, 1952, were invoked to contend that a compromise decree passed by the Court in an ejectment suit, without satisfying itself as to the existence of ground for eviction, was a nullity, and could not be executed.

15. In Nagindas (supra) also, the issue was very much the same. Existence of one or the other statutory ground mentioned in Ss. 12 and 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, was held to be a sine qua non for passing a decree of eviction. The statute contains a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Ss. 12 and 13 and to the parties that they shall not contract out of those statutory grounds. This was spelt out as being inherent in the public policy built into the statute. Merely because 0.23, R. 3 of the Code of Civil Procedure, was applicable to the proceedings in a suit under the Bombay Rent Act, the prohibition in-built into the statute could neither be waived, nor compromised, and any decree for eviction of a tenant, otherwise than upon the existence of a statutory ground, was held by the Supreme Court to be a nullity, capable of being objected to at all stages.

16. In Isabell’s case (supra) also, the same issue was considered by the Supreme Court, which reiterated the principle laid down in Sushil Kumar’s case (supra).

17. One feature is common to all these cases. They all arose under the Rent Control Legislation, which, as a matter of public policy, prohibils an eviction decree being passed against a tenant, except upon the existence of one or the other statutory ground. These were all cases where the Court had passed an ‘eviction decree either on a compromise or upon an arbitration award or by ignoring the statutory restrictions on its jurisdiction. In my view, these judgments are clearly distinguishable. The jurisdiction of the Civil Court was barred in all these cases by the applicable Rent Control Legislation, and, simultaneously, jurisdiction was vested in a special forum. This special forum also could pass a decree for eviction only if certain statutory conditions existed. In these circumstances, if a Court, whether relying on a compromise by consent terms, proceeded to pass a decree for eviction of a tenant, except upon a statutory ground, it would obviously, be traversing beyond its jurisdiction, which was not possessed of even by the special Court. Thus, in these cases, the Supreme Court took the view that the Civil Court, which has passed the decree, lacked inherent jurisdiction to entertain the subject-matter of the suit, and, therefore, it was held that the decree passed by the Civil Court was a nuility. Consequently, its invalidity could be set up in any proceedings, including execution proceedings.

18. The cases arising under Rent Control Legislation or any other Slate Legislation, where a special forum has been created to adjudicate the rights of parties and the jurisdiction of a Civil Court is barred, either expressly or by implication, create no difficulty. It is easy to sec that a Court whose jurisdiction is barred expressly or impliedly is coram non judice, and, therefore, its order or decree would be non est.

19. The Special forum having limited jurisdiction under the statute, its decree would be a nullity if it aets beyond the statutory restrictive limits.

20. In the case of the defendants, however, the decree was not passed by a Court which lacked inherent jurisdiction. It is not disputed, indeed it could not be, that this Court had jurisdiction to entertain the summary suit, in which the ex parte order was passed. What is, however, contended is that, under S. 34 of the Code of Civil Procedure, 1908, as expounded by the Full Bench, this Court lacked inherent power to award interest upon interest, and, therefore, this situation was no different from the situation of lack of jurisdiction, which was considered by the Supreme Court in the cases cited hereinabove.

21. It is difficult to agree with this contention advanced by the learned counsel. A situation, where a statute mandates the Court of plenary jurisdiction to do or not to do something, and the Court breaches the mandate, cannot be equated with a situation where the Court inherently lacks jurisdiction to adjudicate upon the subject-matter of the dispute or with the case of a special forum of limited jurisdiction acting out of bounds of its jurisdictional limits. The former results in an erroneous decree; the latter in a decree which is a nullity.

22. The Rent Control cases are, therefore, distinguishable and, in my view, they do not support the proposition canvassed by the defendants.

23. Mr. Diwan then cited an authority of the Privy Council in Gnanendra Mohan Bhaduri v. Rabindra Nath Chakravarty, AIR 1933 PC 611 in support. This was a case which “arose under the Arbitration Act, 1899, under which there was no provision for the Court to make a decree in terms of an award. Under the said Act, an award was enforceable, per se, as a decree of the Court. The award was filed in Court and there were no proceedings taken out for setting aside the award. Parties, however, were aggrieved by a certain direction in the award, and, by consent, agreed that the award shall be modified as agreed between them. Consent Terms were filed before the High Court, and they applied for a decree in terms of the award, as modified by their Consent Terms. A decree was granted in terms of the Consent Terms. One of the parties was a minor at the time the decree was made. Much later, after attaining majority, he challenged the decree as a nullity. The Privy Council pointed out that the only jurisdiction of the High Court, under the Arbitration Act of 1899, was to remit or set aside the award, and that, in the absence of an order setting aside or remitting the award for reconsideration of the Arbitrator, the Award, which had been filed in the Court, was enforceable, as if it were a decree of the Court. The Act did not contain any provision for making a decree on an award, much less, on an award as modified by consent terms, and, therefore, the decree, if made, was one without jurisdiction and, therefore, a nullity. The Privy Council, therefore, upheld the judgment of the High Court that the decree had been passed without jurisdiction and was, therefore, incapable of execution as such. Mr. Diwan contends that this, at least, is a situation where the Court, which made the decree, had jurisdiction to entertain the subject-matter. Since it had been entertained in a manner contrary to statute, the Privy Council had found that the decree was one without jurisdiction, and, therefore, non est. In my view, this judgment is also capable of being distinguished. Under the Act of 1899, in the absence of a provision for making a decree in terms of the award, the decree, upon its being filed in the High Court, was capable of being enforced, as if it were a decree of the Court. Thus, the situation was one where the parties concerned could have enforced the award as it stood. However, in the absence of any provision of law under which the Court could modify the award, even by consent of parties, the Privy Council found that such order of the Court was one wholly without jurisdiction, and, therefore, a nullity. This was also a case where the jurisdiction of the Court was limited by the statute, viz.. to remit or set aside the award. There was no further jurisdiction to make a decree in terms of the award, or for a modification of the award, even by consent of parties. It cannot be forgotten that arbitrators derive jurisdiction by consent of parties and not by statute. The parties, by consent, had conferred jurisdic-

tion on the Arbitrator and agreed to be bound by it. No one — not even a Court, in the absence of a specific statutory power — could usurp it. The power granted to the Civil Court under law, as it then stood was to set aside the award or to remit the award for re-consideration, on extremely limited grounds. It was in these circumstances that the Privy Council held that the decree made by the Court in terms of award and that too by introducing a modification in the award, was a nullity, as it lacked inherent jurisdiction to do so. 1 am, therefore, unable to accept the contention of Mr. Diwan that his judgment is an authority for the proposition he canvasses.

24. Mr. Diwan then contended that a careful reading of the Full Bench judgment would indicate that the Full Bench has held that the Court is ‘prohibited’ from granting interest upon interest, that the decision deals with the interpretation of S. 34 of the C.P.C., which “empowered” the Court to award interest. It is also pointed out that the Full Bench heavily relied upon the Report of the Joint Committee on the Bill, which preceded the 1956 amendment of S. 34 of the C.P.C. The relevant part of the report states, “the Committee are of; the opinion that interest should not be awarded on interest, but only on the principal sum. Suitable amendment has, accordingly, been incorporated in this clause.” Learned counsel emphasized the observations of the Full Bench on the Report of the Joint Committee to the effect:

“The aforesaid observations of the Joint Committee make it abundantly clear that the intention of the legislature was not to allow the award of compound interest by the Court…..”

He also drew my attention to the further observations of the Full Bench :

“The object of the amendment, as is evident from the report of the Joint Committee, was to prohibit award of interest on interest and was to restrict it only on the principal sum. Under S. 34, as amended, the interest can be awarded only on the principal sum and not on the aggregate sum comprising the principal and interest accrued thereon.”

Highlighting the emphatic language used by the Full Bench, in expounding the amplitude of the power of the Court under S. 34 of the C.P.C., Mr. Diwan was at pains to contend that the Full Bench, by the law it declared, has circumscribed the jurisdiction of the Court under S. 34 of the C.P.C. to award interest. Traversing out of these limits, the Court would not only be traversing the limits set by the statute, but traversing the limits of its jurisdiction. Out of bounds is out of jurisdiction, contends counsel.

25. It is difficult to agree with the contention of the learned counsel for the defendants that, if a Court, while exercising jurisdiction under S. 34, awards interest on the aggregate of the principal sum plus interest, it would be an exercise lacking in inherent jurisdiction and not one merely of an erroneous exercise within its jurisdiction. A Court, which otherwise has jurisdiction to entertain a dispute, equally has jurisdiction to decide it erroneously. The remedy, in such a situation, is by way of appeal, if one is provided, or other constitutional one. If there is no resort to them, or, as in the instant case, the resort to them draws a blank, the order of the Court becomes final and it is not capable of being ignored on the ground of its being noh est or a nullity. In my view, the Court, in such a situation, cannot and does not became coram non judice.

26. It would be useful, at this juncture, to refer to a judgment of the Supreme Court in Hiralal v. Kali. Nath, , This was a case where the decision of the High Court was challenged on the ground that the suit filed on the Original. Side was wholly incompetent for want of territorial jurisdiction, and, therefore, the award which followed on the reference to arbitration, and the decree of the Court under execution, were all null and void. The Supreme Court, repelling the contention, observed (at page 200):

“The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seized of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in’ respect of the subject matter of the suit or over the parties to it.”

The Supreme Court turned down the objection based on territorial jurisdiction as deemed to have been waived and held that the parties were estopped from raising such objection at the execution stage.

27. Following upon this judgment, Madon, J., of this Court (as his Lordship then was) has, in Erandol Taluka Gramodyog Utpadak Sahakari Society v. M/s. Sunil Waste Corporation, AIR 1971 Borrf 91 considered and laid down what 1 consider, with respect, the correct test to be adopted for deciding if the decree is capable of being objected to in collateral proceedings as a nullity. In this case, a suit was filed in the Court of the Subordinate Judge, Delhi, against a co-operative society registered under the Maharashtra Co-operative Societies Act with regard to a dispute touching the business of the society. The respondent, which had filed the suit, obtained a money decree which was passed ex parte. After obtaining the ex parte decree, it was transferred to the Civil Judge, Junior Division, Erandol, for execution. During the Darkhast proceeding, an objection was raised that the decree was a nullity, as the condition precedent in S. 164 of the Maharashtra Co-operative Societies Act, of a previous notice to Registrar, had not been complied with. The trial Court held that a failure to give the notice, required under S. 164 of the Societies Act, was not a question which affected the jurisdiction of the Court to pass a decree, and, hence, this could not be gone into by the executing Court. The appeal to District Judge also failed. While dismissing the second appeal, in which the only ground urged was that the respondent had instituted a suit without giving the requisite notice under S. 164 of the Societies Act, and, hence, the trial Court had no jurisdiction to entertain the suit or to pass a decree therein, and that the decree was incapable of being executed as it was a nullity, reiterating the principle adopted in Rana Harkishandas Lallubhai v. Rana Gurabdas Kalyandas, the learned Judge (Madan, J.) pointed out (at page 516):

“…… .It is always necessary to make a distinction between pleas that tend to show that the decree in question is a nullity and pleas that merely challenge the validity or the propriety of the decree on the ground that it is contrary to the provisions of law. If the plea is that the decree is contrary to law in the sense that in passing the said decree certain provisions of the law have been ignored or contravened, that would not necessarily make the decree a nulity and allegations about the impropriety or the illegality of the decree cannot be entertained in execution proceedings.”

The learned Judge derived support from the judgment of the Supreme Court in Seth Hiralal Patni’s case (supra) and also from the judgment of the Supreme Court in Ittyavira Mathai v. Varkey Varkey, , where it was held that, though S. 3 of the Limitation. Act is peremptory and casts a duty on the Court to take notice of the said provision and give effect to it, though the point of limitation is not raised in the pleadings. Even so, it cannot be said that, where the Court fails to perform its duty and fails to dismiss the suit on the ground of limitation, it acts without jurisdiction. If it fails to do its duty, it merely commits an error of law and an error of law can be corrected only in the manner laid down in the Code of Civil Procedure. If the party aggrieved does not take appropriate steps by way of preferring an appeal to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of its being a nullity.

28. With respect, the approach adopted by Madon, J., in the Erandol Taluka’s case commands itself to me as eminently rational and conducive to justice, and I would prefer to adopt it.

29. For a moment, even assuming the correctness of the contention of Mr. Diwan that the Full Bench judgment has expounded the law and held that the “power” of the Court under S. 34 of the Code of Civil Procedure is “restricted” and that the Court is “prohibited” from granting interest upon interest, a Court, which acts contrary thereto, does not act without inherent jurisdiction; it may act erroneously. Thus, a decree, which grants interest upon interest, cannot be said to be a nullity, nor can the Court, which passes the decree, be said to be coram non judice. In my view, therefore, the ex parte decree dated 5th November, 1990, made by Agarwal, J., does not amount to nullity, nor is it “non est”; much less can be Court be said to have been coram non judice.

30. Mr. Doctor, learned counsel for the plaintiffs, contends that, at the highest, even if the contention of the defendants were to be upheld, only that part of the decree which awards interest upon interest would be bad and that there is no reason to hold that the entire decree is bad. Since the portion of the decree which grants interest is clearly severable, there is no reason why the entire decre’e should be declared to be a nullity.

31. Mr. Doctor, learned counsel for the plaintiffs, placed reliance on a judgment of the learned single Judge of this Court in Fattechand Murlidhar Shop v. Shrikrishna Tejmalji Chandak’, a judgment of the Madras High Court in Ganapathi v. Balasubrammania Gounder,, AIR 1987 Mad and a Division Bench judgment of this Court in D. Shanalai v. Bank of Maharashtra, to repeal the contentions of the defendants.

32. Mr. Doctor cited the judgment of the Supreme Court in Smt Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC, 1621 part-cularly, in paragraph 15 as under:–

”It is necessary first to clarify the concept of jurisdiction. Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial Tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The question whether a Tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on the these facts, but upon their nature, and it is determinable ‘at the commencement, not at the conclusion, of the inquiry.”

This appears a test of what is a jurisdictional issue.

33. Mr. Doctor also relied on a judgment of a Division Bench of this Court in D. Shanalal v. Bank of Maharashtra, 1988 Mah LJ 956 and contended that, once leave to defend is refused or made conditional and the condition is not fulfilled, the party could not be heard in appeal against the ex parte decree. In my view, the contention canvassed for the defendants is somewhat larger, and, therefore, this authority is not much of help.

34. Mr. Doctor also relied on ajudgment of the learned single Judge of the Madras High Court in Ganapathi v. Balasubramania Gounder , which takes the view that the question of validity of a decree is not one which can be agitated in execution, because it does not relate to the satisfactory discharge of the decree. It is only where a decree is passed by a Court, which lacks inherent jurisdiction to pass the decree, that the objection to the validity of the decree may be raised in a proceeding in execution, if such an objection appears on the face of the record.

35. Reliance is also placed on behalf of the plaintiffs on a judgment of the learned single Judge of this Court in Fattechand Murlidhar Shop v. Shrikrishna Tejmalji Chandak, this was a case arising under the Maharashtra Slum Areas (Improvement, Clearance and Redevelop-

ment) Act, 197], under which, no suit for eviction of any occupier from any building or land in a slum area could be instituted without permission of the Competent Authority and, on an objection being raised, or the Court noticing the non-compliance thereof, the suit would not be entertained. A suit had been instituted without obtaining the permis-sion of the Competent Authority, as required under S. 22 of the said Act, An objection was raise in the executing Court that the decree was a nullity, as it has been passed contrary to the provisions of S. 22 of the said Act, and this Court negatived the objection by holding that the executing Court could not entertain and allow the objection to the executability of the decree, since it could not be said that the decree was passed by this Court having no inherent jurisdiction, and was, therefore, a nullity.

36. In my view, the true principle of the matter is the one which has been adopted in the judgment of Madon, J., in Erandol Taluka’s case (supra). Applying the said principle, I am unable to accept or uphold the contentions of the learned counsel for the defendants.

37. In the result, I hold that the ex parte Decree dated 5th November, 1990, made by Agarwal, J., is not a nullity, nor is it non est. The Court which passed the said decree was not coram non judice. Consequently, it is not open to the defendants in these proceedings or in other collateral proceedings to object to the validity of the said decree.

38. In the premises, the chamber summons must fail. Although prayer (a) was granted by me by condoning the delay, the chamber summons fails on merits, and it is, consequently, hereby dismissed with costs.

39. Mr. Diwan applies for an order to stay further proceedings in insolvency to enable the defendants to canvass the matter in appeal. Mr. Pandya, learned counsel for the plaintiffs, makes a statement that the Insolvency Notice would be on board on 4th August, 1992, and, on that day, it would, by consent, be adjourned by a period of two weeks. This should give sufficient time to the defendants. Hence, no order of stay.

40. Chamber summons dismissed.

The post Industrial Credit and Investment Corporation of India Ltd. and another Vs. Sharad Khanna and others appeared first on B&B Associates LLP.

B.S. Yadav, Member:

1.The appellants are the Branch Offices of the M/s. Skypak Couriers Pvt Ltd., who is carrying on business as Couriers. The Respondent No. 1 is Consumer Education and Research Society, a Registered Association while Respondent No. 2, Faruk Hussain Shaikh is the representative of Mr. Mussader Alikhan (for short Mr. Khan), a consumer in the present case. The complaint which has given rise to the present appeal was filed before the State Commission, Gujarat at Ahmedabad by the present respondents.

2. According to the complaint, Mr. Khan was working as a Chief Executive with M/s. Mahendra Suitings Ltd. at Ahmedabad. By virtue of his expertise and varied experience in his profession, the was selected as Jacquard and Installation Manager with M/s. Sulzer Nigeria Ltd., Lagos (Nigeria), a leading textile group in Nigeria having world wide business. Mr. Khan was required to assume his duty on the 6th March, 1990 and his training programme was arranged by his new employers through M/s. Sulzer Brothers Ltd., Switzerland. The training programme was to be followed by further training in Germany and thereafter he was to take independent charge of weeving unit of the said new employer at Lagos, Nigeria. The entire training programme was organised well in advance in order that Mr. Khan could take charge after completing the training at Lagos by April, 1990. Arrangement for air ticket, visas etc. for Mr. Khan were to be arranged by the new employer’s travel agents, M/s. Mona Travels, New Delhi. Mr. Khan deposited his passport, Degree Certificates and other original testimonials with M/s. Mona Travels, for obtaining the necessary visas and air ticket etc. Mr. Khan was to fly on 4th March, 1990 from Ahmedabad to Zurich via Bombay. Mr. Khan had instructed M/s. Mona Travels to send his visas, air ticket, passport, original Degree Certificates, testimonials and other relevant documents pertaining to his journey through the appellant, Skypak Couriers Pvt. Ltd. so that he could receive them in time. M/s. Mona Travels, sent all relevant documents through the above Couriers on the 10th February, 1990 under consignment No. 215882. It was a ‘To Pay’ consignment and consideration for such services was promised to be paid to the couriers by Mr. Khan. The consignment was to be delivered at his Ahmedabad address. The consignment was expected to reach Mr. Khan on 11.2.1990 but it was not delivered to him. He waited upto 13th February, 1990 on which date he contacted the Branch Office of the Couriers at Ahmedabad but was given no response. Mr. Khan contacted M/s. Mona Travels as well as the Bombay Office of the Courier about the non-delivery of the consignment in question. M/s. Mona Travels also contacted the offices of the Couriers. However, inspite of various communications between different branch office of the Couriers i.e. appellants, the consignment could not be traced. In the absence of the necessary visas, passport etc. Mr. Khan could not commence his journey on 4th March, 1990 and consequently could not attend the training programme on the 6th March, 1990. For obtaining a temporary passport in a short time, he lodged a First Information Report at Ahmedabad, as advised by the above travel agency. Mr. Khan was informed by the Couriers that the consignment had been lost. He obtained a fresh passport, new Degree Certificates, new air ticket, new visas and new copies of relevant other documents. He was enrolled in the next batch of training programme. He left for Zurich on 16th April, 1990. However, he was asked by his employer to join duty at Nigeria, without undergoing training.

3. It is further the case of the complainants that Mr. Khan had promised to pay Rs. 65/- for the services which were to be rendered by the Couriers i.e. the opposite party (now appellants). As the consignment was not delivered to him there was gross negligence on the part of the opposite party in losing the consignment and thus there was deficiency in the rendering of services by them. Mr. Khan suffered a huge amount of monetary loss by remaining jobless from 4th March, 1990 to 18th April, 1990. He also lost future prospects by not being able to undergo training. He assessed his loss for future prospects at Rs. 1,15,000/- and at Rs. 35,000/- towards loss of salary from 4th March, 1990 to 18th April, 1990. According to him, he had also to spend Rs. 4,658/- for obtaining a copy of his Degree Certificate, Rs. 2,959/- for getting his new air tickets and visas, Rs. 515/- for obtaining new copy of his passport. The complainants also claimed Rs. 1 lakh for the agony and hardship suffered by Mr. Khan in obtaining new copies of the documents and for remaining unemployed for some time. Thus in all, the complainant claimed Rs. 2,58,102/- from the opposite party.

4. The appellants resisted the complaint. Some preliminary objections were taken to the effect that M/s. Mona Travels, New Delhi was the only contracting party with them and as the whole cause of action accrued outside the territorial jurisdiction of the State Commission, Gujarat, the said Commission had no jurisdiction to entertain the complaint. Moreover it is mentioned in the courier consignment note that ‘Disputes subject to jurisdiction of Bombay Courts only’ and, therefore, on that ground also the said Commission had no jurisdiction to decide the present dispute. It was also averred that M/s. Mona Travels was a necessary party.

5. On merits it was pleaded that the opposite party’s liability was limited to a maximum of U.S. $100 in case of international consignment and Rs. 100/- maximum for intercity and Rs. 1,000/- for domestic consignment and this term is clearly mentioned in part 7 of the terms of the servicing and in case the consignment was of higher value than the indicated limited liability, then it would be advisable for the consignee to have a transit insurance policy; that the consignment in question was not got insured by M/s. Mona Travels that the consignment was not on ‘To Pay’ basis and that it was on credit basis and M/s. Mona Travels was a regular credit client; that the contents of the consignment were not declared by M/s. Mona Travels; that according to the First Information Report lodged by Mr. Khan on 21st February, 1990 he himself had lost his passport at Ahmedabad and, therefore, he could not ask for the expenses incurred by him in obtaining new copy of the passport; that at the relevant time and period Overnite/ OBC Couriers were haying an agreement with the opposite party for bringing all consignments from Delhi to Ahmedabad and the consignment in question was handed over to the said couriers and therefore, the said Couriers were also necessary party to the present dispute.

6. The opposite parties i.e. appellants also disputed the amounts of compensation claimed by the complainants. The appellants did not dispute the fact that the consignment in question handed over to them for carriage to Ahmedabad has not been delivered to Mr. Khan till today.

The State Commission vide their Order held as follows:

(i)The consignment was to be delivered to Mr. Khan (by mistake in the Order the name of the Complainant No. 2 Dr. Faruk has been mentioned as the consignee).

(ii)Under instructions of Mr. Khan, M/s. Mona Travels sent the documents under the consignment note in question and the appellants were, therefore, under legal obligation to deliver the said consignment to him and as they failed to do so they are guilty of non-delivery.

(iii)The consignment was to be delivered at Ahmedabad and hence they (The State Commission) had jurisdiction to entertain the complaint. The agreement that only Bombay Courts had jurisdiction to decide the dispute was not valid and unenforceable and, moreover, the Bombay Courts had no jurisdiction as the consignment was despatched from Delhi and had to be delivered at Ahmedabad.

(iv)M/s. Mona Travels was not a necessary party as Mr. Khan was the consignee and beneficiary of the consignment and the relief has been sought against the Couriers only.

(v)The objection of the Couriers that liability of the opposite party was limited to Rs. 100/- did not carry any weight as the printed memo containing the above condition was neither signed by any body nor there was any evidence to show that the terms printed therein were shown to the consignor or the consignee or that the same were agreed upon by the consignor.

(vi)It had been proved beyond doubt that the consignment contained passport, visas, air tickets, Degree Certificate etc. which were absolutely necessary for Mr. Khan’s travel to Zurich for training.

(vii)On account of the non-delivery of those documents Mr. Khan could not reach and report for training at Zurich, which was to start from March 6, 1990 and he had to obtain new passport etc. and he had to join his duties at Nigeria without undergoing any training.

(viii)As the Couriers have not explained what really had happened to the consignment, there was deficiency in the rendering of service amounting to negligence, and were, therefore, liable to pay damages. Rs. 10,000/- was assessed as loss of salary from March 4, 1990 to April 19, 1990, Rs. 6,000/- were assessed as loss for future prospects as Mr. Khan had to resume his duty at Lagos (Nigeria) without training. Rs. 4,068/- was assessed as expenses incurred by Mr. Khan in obtaining copies of Degree Certificate, Rs. 1,000/- of costs were also awarded to Complainant No. 1 i.e. the Consumer Education and Research Society.

The opposite party was asked to pay the above amount within 4 weeks from the day the Order was announced. It was further ordered that in case the amount was not paid within that period, it would carry interest at the rate of 18 per cent from the date of judgment till the date of payment.

7. Feeling aggrieved against the above Order the Appellants, as mentioned earlier, who are the branch offices of the Skypak Couriers have filed the present appeal.

8. On the date the appeal was heard the Counsel for the appellants was absent His Junior Counsel appeared on his behalf and requested for an adjournment. We did not find the ground advanced by him for the absence of the Senior Counsel as satisfactory. We refused to grant adjournment. The said Junior Counsel could not advance any arguments. We have heard the opposite party and have gone through the file.

9. After hearing the opposite party and going through the file we do not find any infirmity in the Order of the State Commission. The objections raised by the appellants in the written statement and urged before the State Commission have been discussed in detail by the Commission and they have given sound reasons for rejecting the various preliminary objections raised by the appellants.

10. We may take one of the allegations which has not been discussed by the State Commission in detail. It has been repeated in the ground of appeal. The objection is that in the First Information Report lodged by Mr. Khan, he had mentioned that he had lost the documents himself in Ahmedabad. As he was in urgent need of the passport etc. Mr. Khan might have made a wrong statement in the First Information Report. We have not been able to understand how that statement contained in the First Information Report helps the appellants. It is not in dispute that the consignment in dispute has not been delivered to Mr. Khan upto today and that has been lost by the Couriers. There is the finding of the State Commission that, in addition to other documents, the consignment contained, the passport also.

11. We have also gone through the amounts? awarded by the State Commission to Mr. Khan through his authorised representative Dr. Faruk (Complainant No. 2). All the items awarded appear to be reasonable except item of Rs. 6,000/- awarded as compensation for the loss of future prospects. There was no evidence to support that item except the bare statement of the Complainant No. 2 in the affidavit. However, Mr. Khan must have suffered some loss of future prospects as he had to join his duties without any training. We think that Rs. 1,000/- would be sufficient compensation to Mr. Khan for the loss of future prospects. Accordingly, we reduce this item of compensation awarded by the State Commission under this head to Rs. 1,000/-.

12. For the reasons aforesaid, we modify the Order of the State Commission to the extent that instead of Rs. 6,000/- the Complainant No. 2 would be entitled to only Rs. 1,000/- as compensation for the loss of future prospects. In other respects we do not find any force in the present appeal and dismiss the same with costs which we assess at Rs. 1,000/-.

Per Se Y. Krishan, Member

The State Commission had in this case come to the finding that the consignment of the complainant contained valuable materials and the same was lost due to negligence of the appellant Courier and, therefore, awarded damages as under:

1. Rs. 10,000/- as compensation for consequential loss of salary suffered by the complainant due to delay in getting a job in Nigeria in Lagos.

2. Rs. 4,068/- as expenses incurred by the complainant in obtaining duplicates of the documents.

3. Rs. 6,000/- by way of loss of future prospects. This has been reduced in the order above to Rs. 1,000/-.

4. An amount of Rs.1,000/- by way of costs by the State Commission.

5. Rs. 1,000/- as costs by the National Com-mission as per the Order proposed above.

2. The important question to be considered in this case is the liability of the Courier under law for loss of a consignment entrusted to its custody and transportation. During the hearing, Dr. Saraf, the Counsel for the Respondent complainant stated that the responsibility under law of the Courier is entirely different from that of a Carrier. I have not been able to find any legal provision or case law defining the responsibility and liability of a Courier as such for consignments delivered to it for purposes of carriage and delivery.

3. In the Courier Consignment Note executed in this case, it is printed that it is ‘Subject to standard conditions of carriage available on request. The Courier specifically limits its liability to a maximum of U.S. $100 per consignment for any cause’. From this it would appear that the Courier has assumed the rights and liabilities of a carrier presumably under the Carriers Act; he has also limited his liability to a maximum of U.S.$ 100 per consignment, on the face of the consignment note besides limiting his liability in the standard conditions of carriage which are made available on request of consignors.

4. It is also seen from the photocopy of the Courier Consignment Note in the paper book that the column ‘Description’ and ‘Declaration of the contents of the proposal’ (We declare that this proposal contains only commercial documents/ samples which are not of personal nature) have been left blank. Thus the consignor M/s. Mona Travels had sent the relevant documents like Passport, Visa, Air travel ticket etc. through the Courier without disclosing the contents of the packet. In my opinion it was obligatory on the part of the consignor to have disclosed the contents of the packet so that it could have been got insured if necessary.

5. Another important question is whether it has been proved beyond doubt that the consignment contained Passports, Visas, Air Tickets, Degree Certificates etc. of Mr. Khan. This is based on the admission of the Courier appellant, M/s.. Skypakin their letter of 20th February, 1990 written to the Respondent No. 2 Mr. Farukh. This admission cannot be used against the Courier. The Courier must have prior knowledge of the contents of the packet. If these were not communicated to the Courier at the time of booking the consignment, we cannot attribute any knowledge of the contents to the Courier and hold him liable for the loss.

6. It may also be further noted that in the F.I.R. lodged by Mr. Khan the consignee, about the loss of Passport, Visa etc., he had stated that the documents had been lost by himself (and not by the Courier). If he had given a false statement regarding the person who had lost the consignment, we cannot support his contention in these proceedings that the consignment containing the documents was lost by the Courier.

7. The reliefs granted by the State Commission are excessive, being in excess of liability limited to US $100/- per consignment on the face of the Courier-consignment note executed on behalf of the complainant by his Travel Agent. Besides the Courier is liable only for a nominal amount as consignor did not declare the contents of the consignment. In other words, the Courier’s liability will be limited to loss of a packet of unknown contents as such instead of the loss of valuable documents like passport, visa, air-ticket etc. and whose loss prevented him from taking up a new and lucrative job in time I assess the quantum of loss payable at Rs. 100/- only in this case. The Order of the State Commission is set aside. The respondent claimant is entitled to refund of the Courier consignment freight plus Rs. 100/- only as damages. There is no order as to costs.

Appeal dismissed.

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JUDGEMENT

Mr. Justice V. Balakrishna Eradi, President?

These two connected appeals have been filed by Opposite Party Nos. 1 and 2 respectively in Original Petition No. 112 of 1991 on the file of the State Consumer Disputes Redressal Commission, Madras. The appellant in Appeal No. 82 of 1992 is the Indian Oil Corporation Ltd. (Opposite Party No. 1) and the connected appeal (Appeal No. 85 of 1992) has been filed by M/s. Vijaya Kanna Agencies who are the Indane Gas Distributors of the Indian Oil Corporation at Palani.

2. The first respondent herein (the first complainant before the State Commission) had subscribed for two L.P.G. cooking gas cylinders and was a customer registered with the second opposite party, the distributor. On April 23,1991 the second opposite party through one of its delivery boys, delivered one gas cylinder at the residence of the first complainant and it was being kept there as a spare second cylinder. On May 16,1991 at about 11 a.m. when Complainant No. 1 and his wife and minor grandson who are complainant Nos. 2 and 4 respectively were inside the kitchen at their residence, Shanthi the deceased daughter of complainant Nos. 1 and 2 who was boiling some water on the gas stove found that the gas in the cylinder which was till then in use was exhausted. Thereupon she put out the stove, removed that cylinder and attempted to connect the spare cylinder supplied by the Opposite Party No. 2 when there was a burst resulting in the gas escaping and catching fire. The deceased Shanthi was caught in the fire and her clothes were enveloped in flames with the result that she suffered extensive burns. She was immediately admitted in the Government Hospital, Palani but she succumbed to the burn injuries on May 19, 1991. According to the complainants the accident was caused due to the defective nature of the cylinder supplied to the first complainant on April 23, 1991 and hence Opposite Party Nos. 1 and 2 are liable to compensate the complainants for the grave loss suffered by them by reason of the death of deceased Shanthi. Opposite Party No. 3 in the complaint petition is the United India Assurance Company with whom a policy of insurance had been taken by the second opposite party for the benefit of itself and the first opposite party covering against the risk of all liabilities to customers which may arise on account of accidents.

3. The defence put forward by the first opposite party in the counter statement filed on its file before the State Commission was that the LPG cooking gas cylinders supplied by it to the distributor are thoroughly checked and great care is taken to ensure that they are free from any defect. The counter statement proceeded to state that the delivery boys had clear instructions to test the cylinders for any possible defects in the presence of the customers concerned. But in the instant case at the specific request of the complainant the delivery boy delivered the cylinder without the necessary check at the customer’s premises. In other words, the case put forward by Opposite Party No. 1 was that the complainants had prevailed upon the delivery boy not to remove the seal of the cylinder and thereby prevented him from conducting the checks at the customer premises. The first respondent denied that the cylinder or any of the related equipments was defective or there was any negligence or deficiency on the part of the Indian Oil Corporation. On this basis the first respondent denied any liability for payment of any compensation to the complainants.

4. The contention put forward by the second opposite party was that before delivering the gas cylinder to the complainant on April 23, 1991 the best possible re-check of the gas cylinder had been done by its technically qualified delivery boy and hence there was no deficiency in service nor any negligence on its part. The sole plea raised by the third opposite party namely, the United India Assurance Company was that its liability was only to indemnify the first and second opposite parties in respect of all sums which the insured may be found to be legally liable to pay as compensation in respect of any accident besides litigation expenses incurred in the said connection and there was no liability on the part of the Assurance Company to pay any compensation directly to the complainants.

5. Before the State Commission the first complainant examined himself as P.W. 1 and on the side of the opposite parties, one P. Murugantham was examined as R.W. 1 claiming that he was the delivery boy who delivered the ill fated cylinder. One M. Silvraj Assistant Manager, Indian Oil Corporation was also examined as R.W. 2.

6. The State Commission has carefully analysed the oral and documentary evidence in the case. It has given sound and convincing reasons for coming to the conclusion that the version put forward by R.W. 1 that, it was he who delivered the gas cylinder, could not be believed as true. It is rightly pointed out that there was a direct contradiction between the case put forward by the first respondent and the plea taken by the second respondent on the question whether a re-check of the gas cylinder had been conducted by the delivery boy at the time of delivery at the residence of P.W. 1 the State Commission held that on the evidence it was clear that no re-checking of the gas cylinder had, in fact, been done by the delivery boy at the time when the cylinder was delivered and that this amounted to a clear deficiency inasmuch such are-checking of the cylinder was mandatory under the procedure laid down for supply of cooking gas cylinders. We find no reason whatever to differ from the said conclusion recorded by the State Commission.

If only a proper re-checking of the gas cylinder had been conducted at the time of its delivery to the customer the defect in the value would have been then discovered and the unfortunate accident would not have happened. It has clearly come out in evidence that when, on May 16,1991, the deceased Shanthi attempted to connect the spare cylinder to the stove there was a bursting out of gas which on coming into contact with the hot surface of the extinguished stove got ignited and the fire spread to the clothes worn by deceased Shanthi, engulfing her in flames. P.W. 1 was an eye witness to the whole incident. Accepting his testimony, the State Commission found that what actually took place was that when the deceased Shanthi tried to fix the regulator, due to the defective nature of the valve, the pin in the valve pierced deep leading to the bursting forth of the gas from the cylinder. In the opinion of the State Commission it had been clearly established that the accident was caused due to the defective nature of the valve in the gas cylinder. Though a plea had been advanced by the Opposite Parties that chemically gas cannot get ignited by coming in contact with any hot thing unless there is a naked flame and that there was a naked flame in a lamp kept in the almirah in the kitchen for performing of pooja it was rightly rejected by the State Commission accepting the evidence of P.W. 1 that the pooja was over in the early morning itself and there was no naked flame in the lamp at the time of the occurrence of the accident. After having ourselves independently considered the entire evidence we are in complete agreement with the aforesaid findings of the State Commission and have no hesitation to affirm the conclusion recorded by it that the accident in question had been caused only because of the defective nature of the valve in the gas cylinder.

7. The question of quantification of damages has been carefully discussed by the State Commission from the correct legal perspectives and we find no justification whatever for any interference with the directions issued by it that Opposite Party Nos. 4 and 2 should pay the Complainant Nos. 3 and 4 (husband and minor son of deceased Shanthi), Rs. 1 lakh as damages on the ground of loss of expectation of her life and the pain and suffering undergone by the deceased and that they should also jointly and severally pay to the Complainant No. 3 (husband of the deceased Shanthi) a sum of Rs. 50,000/- for loss of consortium. We also confirm the further direction issued by the State Commission that the Opposite Party Nos. 1 and 2 should pay to the Complainant Nos. 1,2 and 4 Rs. 1,000/- each for the injuries sustained by them. Thus the award of compensation made as above by the State Commission is hereby upheld.

8. The State Commission is right in holding that the liability of the Assurance Company is only to indemnify Opposite Parties Nos. 1 and 2 against their liabilities in respect of the claim made against them by the customer.

9. We accordingly confirm the order passed by the State Commission and dismiss both these appeals with costs, which we fix at Rs. 3,000/- in each appeal payable to the respondents by the concerned appellant in the respective appeal.

10. Pursuant to the interim order dated March 25, 1992, passed by this Commission granting a conditional stay to the appellant in First Appeal No. 82 of 1992, a demand draft for Rs. 40,000/- drawn in favour of the first respondent has been deposited by the said appellant in the Registry of this Commission. The said demand draft forthwith will be made over or despatched by the Registry to the first respondent. The balance amount due by the appellants to the respondents under the State Commission’s Order as also the costs payable to them under this Order shall be paid to the concerned respondents by the appellants within a period not exceeding six weeks from today.

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ACT:

Constitution of India, 1950:

Articles 215, 225 and 226-Admiralty jurisdiction of High Courts-Claims against foreign vessel-Cargo going out of India-Action in rem-Inherent jurisdiction-Whether extends to claim relating inward and outward cargo-Whether extends to such foreign vessel and the arrest thereof.
Article 372:

Recommendations of Law Commission relating to comprehensive Law on courts of admiralty-No subsequent legislation passed-Continue to be governed by legislations enacted for colonies by British Parliament-Urgent need for legislative action-Stressed.

Andhra State Act, 1953:

Section 30,52-Admiralty jurisdiction of the High Court- Concept and continuance of-Whether the admiralty jurisdiction extends to a foreign vessel in respect of claim relating to carriage of goods from Indian port to foreign port.

Merchant Shipping Act, 1958:

Section 3(15), 443 and 444-Detention of foreign vessel- ‘Damage’-What is-Whether confined to physical damage or wide enough to include all maritime claims.
Admiralty Court Act, 1861:

Admiralty jurisdiction-Applicability in India-Powers of admiralty courts-Whether frozen as on the date of the passing of the Act-Subsequent changes in law-Effect of-Need for updating and enacting new legislation keeping in view the rights of citizens of Indian Sovereign Republic.

Words & Phrases:

‘Damage’ occurring in Section 443 of the Merchant Shipping Act, 1958-Meaning of.

HELD : (By the court) :
The High Court of Andhra Pradesh undoubtedly possesses jurisdiction over claims relating to inward and outward cargo. Therefore the High Court rightly assumed jurisdiction by the arrest of the appellant vessel while it was lying in the port of Vishakhapatnam. (Per Thommen, J) :

1. The Andhra Pradesh High Court is the successor to the Madras High Court in respect of the territories transferred from Madras and included in the State of Andhra which was formed by the Andhra State Act, 1953. In the port of Vishakhapatnam the Andhra Pradesh High Court has thus the same jurisdiction as was vested in the Madras High Court prior to the transfer of that territory. [1021D; 1022A]

2.1. The fact that the High Court continues to enjoy the same jurisdiction as it had immediately before the commencement of the Constitution, as stated in Article 225 of the Constitution does not mean that a matter which is covered by the Admiralty Court Act, 1861 cannot be otherwise dealt with by the High Court, subject to its own Rules, in exercise of its manifold jurisdiction, which unless barred, is unlimited. To the extent not barred expressly or by necessary implication, the judicial sovereignty of this country is manifested in the jurisdiction vested in the High Courts as superior courts. [1024E,F].

2.2. It is true that the Colonial statutes continue to remain in force by reason of Article 372 of the Constitution of India, but that does not stultify the growth of law or blinker its vision or fetter its arms. Legislation has always marched behind time, but it is the duty of the Court to expound and fashion the law for the present and the future to meet the ends of justice. [1026B,C]

Kamalakar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd., AIR 1961 Bombay 186; Mrs. Sahida Ismail v. Petko R. Salvejkov & Ors., AIR 1973 Bombay 18; Jayaswal Shipping Company v. S.S. Leelavati, AIR 1954 Calcutta 415; Rungta Sons Pvt. Ltd. & Anr. v. S.S. Edison Mariner & Anr., 1961 – 62 (66) Calcutta Weekly Notes 1983; Smt. Reena Padhi v. Jagdhir, AIR 1982 Orissa 57; National Co. Ltd. v. Asia Mariner, 72 CWN 635, overruled.

3. What the Colonial Courts of Admiralty Act, 1890 did was not to incorporate any particular English Statute into Indian law for the purpose of conferrring admiralty jurisdiction, but to assimilate the competent Courts in India to the position of the English High Court in the exercise of admiralty jurisdiction. It would, therefore, appear that any expansion of Admiralty jurisdiction of the High Court in English was intended likewise to expand the jurisdiction of the Colonial Courts of Admiralty. This should have been regarded as the position with respect to a Colonial Court of unlimited jurisdiction. [1027H; 1028A,B]

The Yuri Maru v. The Woron, [1927] AC 906, referred to.

4. It was because of the unlimited civil jurisdiction that was already vested in the High Courts that they were declared to be Colonial Courts of Admiralty having the same jurisdiction in extent and quality as was vested in the High Court of England by virtue of any statute or custom. The High Courts were declared to be competent to regulate their procedure and practice in exercise of admiralty jurisdiction in accordance with the Rules made in that behalf. There is, therefore, neither reason nor logic in imposing a fetter on the jurisdiction of these High Courts by limiting it to the provisions of an imperial statute of 1861 and freezing any further growth of jurisdiction. This is all the more true because the Admiralty Court Act, 1861 was in substance repealed in England a long time ago. [1029F-H]

Halsbury’s Laws of England, 4the Ed. Vol. 1(1), para 307; Halsbury’s Statutes of England, Vol. 1, para 9, referred to.

5. The wide jurisdiction vested in the English Courts is derived from ancient principles of Maritime Law developed by custom and practice as well as from subsequent statutes many of which have been incorporated in the provisions of International Conventions unifying the laws practised in several maritime countries. [1032E-F]

The Geetano and Maria, (1862) 7 PD; The Gas Float Whitton, N.2 (1896), referred to.

A History of English Law, Vol.1,5 and 8; Rescoe’s Admiralty Practice, 5the Ed.; Marsden : Select Pleas of the Court of Admiralty, Vol.I & II; Law and Custom of the Sea, Vol.I and II; Benedict on admiralty, 6th Ed. (1940) Vol.I; Gilmore and Black, Law of Admiralty, (1957); A History of English Law, W.S. Holdsworth, Vol. I, pp. 558-59, referred to.

6. The provision contained in section 6 of the Admiralty Court Act, 1861 limiting the jurisdiction of the Admiralty Court to claims respecting inward cargo was discarded by the Administration of Justice Act, 1920 which extended the jurisdiction of the High Court to (a) any claim arising out of an agreement relating to the use or hire of a ship; (b) any claim relating to the carriage of goods in any ship, and (c) any claim in tort in respect of goods carried in any ship. The Act thus applied to both inward and outward cargoes. [1034B,C]

7. The vital significance and the distinguishing feature of an admiralty action in rem is that this jurisdiction can be assumed by the coastal authorities in respect of any maritime claim by arrest of the ship, irrespective of the nationality of the ship or that of its owners, or the place of business or domicile or residence of its owners or the place where the cause of action arose wholly or in part. [1038E-F]

The Fehmarn, (1958) I All E.R. 333, referred to. Halsbury, op. cit. 4th Ed. Vol. I(1) para 309; D.C. Jackson, Enforcement of Maritime Claims, (1985); Gilmore and Black, The Law of Admiralty, p. 1; The Law of American Admiralty, 6th Ed. Vol. I p.3; Rescoe’s Admiralty Practice, 5th Ed. p.29, referred to.

8. It is within the competence of the appropriate Indian Courts to deal, in accordance with the general principles of maritime law and the applicable provisions of statutory law, with all persons and things found within their jurisdiction. The power of the court is plenary and unlimited unless it is expressly or by necessary implication curtailed. All remedies which are available to the courts to administer justice are available to a claimant against a foreign ship and its owner found within the jurisdiction of the concerned High Court. This power of the court to render justice must necessarily include the power to make interlocutory orders for arrest and attachment before judgment. [1046B-D]

The Bold Buccleaugh, [1851] 7 Moo. PC 267; The Jade, [1976] I All. E.R. 921, 923; Currie v. M. Knight, [1897] AC 97; Bardot & Anr. v. The American Ship or Vessel Augusta, 1873 (x) Bombay High Court Reports, 110, referred to.

Enforcement of Maritime Claims, 1985 p. 9; Halsbury’s Laws of England, 4th Ed. Vol.I p. 375; Halsbury’s Laws of England, Vol.1, para 307; referred to.

9. The High Court in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers. [1046D-E]

Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra JUDGMENT:

Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors., [1965] 2 SCR 800, distinguished. Halsbury’s Laws of England, 4th Ed. Vol.10, para 713, referred to.

10. In the instant case, the Andhra Pradesh High Court, as a successor to the Madras High Court, is vested with all the appellate and original jurisdiction, including admiralty jurisdiction to order the arrest and detention of a ship. [1047A-B]

11. In equating the admiralty jurisdiction of the Indian High Court to that of the English High Court, the Colonial Court of Admiralty Act, 1890 significantly refers to the admiralty jurisdiction of the High Court in England ‘whether existing by virtue of any statute or otherwise’. This is an enabling statute, and not a statute of limitation of power. It aids, and does not fetter, the growth of jurisdiction. There is no reason why the words ‘statute or otherwise’ should be so construed as to exclude the various sources from which the admiralty jurisdiction in England developed. Apart from statutes, the powers of that Court were derived from custom and practice and the principles developed by common law and equity as well as by the generally recognised principles of civil law developed and practised in Europe. There is no reason why those principles should also not be drawn upon to enrich and strengthen the jurisprudence of this country, even if the jurisdiction of our courts were to be, by compulsions of history, considered to be curtailed and dovetailed to the colonial past – a proposition which is neither correct nor consistent with our status as a sovereign republic. It is time to take a fresh look at the old precedents. [1047D-H; 1048A]

Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat & Ors. JT 1991 (3) SC 617; S.P. Gupta v. Union of India, [1982] 2 SCR 365, relied on.

12. It is well recognised in iternational law that a merchant ship, though generally governed by the laws of the flag State, subjects itself to the jurisdiction of a foreign State as it enters its waters. The Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958 and the Law of the Sea Convention, 1982 affirm that the sovereignty of a State extends over its internal and territorial waters. [1048D]

The Schooner Exchange v.M. Faddon & Ors., [1812] 11 U.S. (7 Cranch) 114, 143, referred to. Nagendra Singh, International Maritime Law Conventions, British Shipping Laws; Benedict, The Law of American Admiralty, 6th Ed. pp. 121 & 122, referred to.

13. Coastal States are entitled to assume jurisdiction in respect of maritime claims against foreign merchant ships lying in their waters. These ships are liable to be arrested and detained for the enforcement of maritime claims. The courts of the country in which a foreign ship has been arrested may determine the cases according to merits, provided they are enpowered to do so by the domestic law of the country or in any of the cases recognised by the International Convention relating to the Arrest of Seagoing Ships, Brussels, 1952. The maritime claims in respect of which the power of arrest is recognised in law include claims relating to damage caused by any ship either in collision or otherwise; claims relating to carriage of goods in any ship whether by charterparty or otherwise, loss of or damage to goods etc. These principles of International law, as generally recognised by nations, leave no doubt that, subject to the local laws regulating the competence of courts, all foreign ships lying within the waters of a State, including waters in ports, harbours, roadsteads and the territorial waters, subject themselves to the jurisdiction of the local authorities in respect of maritime claims and they are liable to be arrested for the enforcement of such claims. [1049C-F]

14. In the absence of any statute in India comparable to the English statutes on admiralty jurisdiction, there is no reason why the words ‘damage caused by a ship’ appearing in section 443 of the Merchant Shipping Act, 1958 should be so narrowly construed as to limit them to physical damage and exclude any other damage arising by reason of the operation of the vessel in connection with the carriage of goods. The expression is wide enough to include all maritime questions or claims. If goods or other property are lost or damaged, whether by physical contact or otherwise, by reason of unauthorised acts or negligent conduct on the part of the shipowner or his agents or servants, wherever the cause of action has arisen, or wherever the ship is registered, or wherever the owner has his residence or domicile or place of business, such a ship, at the request of the person aggrieved, is liable to be detained when found within Indian jurisdiction by recourse to sections 443 and 444 of the Merchant Shipping Act, 1958 read with the appropriate rules of practice and procedure of the High Court. These procedural provisions are but tools for enforcement of substantive rights which are rooted in general principles of law, apart from statutes, and for the enforcement of which a party aggrieved has a right to invoke the inherent jurisdiction of a superior court. [1054G; 1055A-D]

Victoria, 1887 12 PD 105; The Vera Cruz, (1884) 9 PD 96; Currie v. M.Knight, (1897) AC 97; The Jade, (1976) 1 All. E.R. 920, referred to. Halsbury’s Laws of England, 4th Ed. Vol.I(1), para 319 N. 12, referred to.

15. The Merchant Shipping Act empowers the concerned High Court to arrest a ship in respect of a substantive right. A right conferred by the Indian Carriage of Goods by Sea Act, 1925 in respect of outward cargo is one of those rights which can be enforced by arrest and detention of the foreign ship in order to found jurisdiction over the vessel and its owners, just as it can be done in respect of inward cargo by reason of the substantive rights conferred by the Admiralty Court Act, 1861 read with the Colonial Courts of Admiralty Act, 1890, and other rules of law. The same principle must hold good for carriage under a charterparty. These and other laws, such as the law of contract, tort, crime, mortgage, marine insurance, customs, port operations, etc. and the Civil and Criminal Procedure Codes as well as the relevant rules of court regulating procedure and practice together constitute the body of substantive and procedural laws governing claims relating to inward and outward cargo, and such claims are enforceable against foreign ships by recourse to arrest and detention when found within jurisdiction. Viewed in this light, and by this reasoning, the Andhra Pradesh High Court, as a successor to the Madras High Court, does not lack admiralty jurisdiction in respect of claims to outward cargo. [1056A-D]

16. The jurisdictional questions concerning arrest of foreign ships enforcement of claims against the shipowner as a transporter of goods, which in England are regulated by the Supreme Court Act, 1981, are in many respects left unregulated by Indian legislation. While the provisions of various international conventions concerning arrest of ships, civil and penal jurisdiction in matters of collision, maritime liens and mortgages etc. have been incorporated into the municipal laws of many maritime States, India, lags behind them in adopting these unified rules. By reason of this void, doubts about jurisdiction often arise, as in the present case, when substantive rights, such as those recognised by the Carriage of Goods by Sea Act, are sought to be enforced. The remedy lies, apart from enlightened judicial construction, in prompt legislative action to codify and clarify the admiralty laws of this country. This requires thorough research and investigation by a team of experts in admiralty law, comparative law, and public and private international law. Any attempt to codify without such investigation is bound to be futile. [1056H; 1057A-C]

17. The judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. [1058E,F]

S.P. Gupta v. Union of India, [1982] 2 SCR 365, relied on. The Schooner Exchange v. M’Faddon & Ors., U.S. Supreme Court Reports, Cranch 5-9 P. 114, referred to.

18. All persons and things within the waters of a State fall within its jurisdiction unless specifically curtailed or regulated by rules of international law. The power to arrest a foreign vessel, while the waters of a coastal State, in respect of a maritime claim, wherever arising, is a demonstrable manifestation and an essential attribute of territorial sovereignty. This power is recognised by several international conventions. These conventions contain the unified rules of law drawn from different legal systems. Although many of these conventions have yet to be ratified by India, they embody principles of law recognised by the generally of maritime States, and can therefore be regarded as part of our common law. A specialised body of legal and technical experts can facilitate adoption of internationally unified rules by national legislation. It is appropriate that sufficient attention is paid to this aspect of the matter by the concerned authorities. Perhaps the Law Commission of India, endowed as it ought to be with sufficient authority, status and independence as is the position in England, can render valuable help in this regard. [1059D-H; 1060A]

19. The jurisdiction of the High Court is governed by the Constitution and the laws, and the continuance in force of the existing laws is not a fetter but an additional source of power. Access to court for redressal of grievance being an important right of every person, it is essential that the jurisdiction of the court is construed harmoniously and consistently with its vital function in that respect, so that absence of legislation will not jeopardise that right. [1060C,D]

20. Once a foreign ship is arrested in Indian waters by an order of the High Court, in exercise of the admiralty jurisdiction vested in it by statute, or inherent in it as a court of record, in respect of any maritime claim against its owner, wherever the cause of action may have arisen, and whether or not the ship is subsequently released by the owner furnishing security, proceedings must continue against the owner as in any other suit. [1060G,H]

21. All foreign ships entering Indian waters are presumed to know that they fall within the jurisdiction of this country during their stay here. It cannot be said that no High Court in India was invested with admiralty jurisdiction to order the arrest of the vessel in respect of a cause of action relating to outward cargo because section 6 of the Admiralty Court Act, 1861 (read with the Colonial Courts of Admiralty Act, 1890) conferring admiralty jurisdiction on Indian High Courts confined it to ‘claims for damage to cargo imported’. In the instant case, the appellant-vessel was lying in the port of Vishakhapatnam when she was arrested in respect of a cause of action relating to cargo. The High Court, therefore, rightly assumed jurisdiction by the arrest of the vessel while it was lying in the port of Vishakhapatnam, as the High Court possesses jurisdiction over claims relating to inward and outward cargo. [1061B-E]
(PER SAHAI.J. CONCURRING);

1.1. The Law of admiralty progressed gradually from ordinary courts, to courts of Admiralty and ultimately to High Court commencing in commercial expedience, equity and justice and ending with statutory enactments covering entire field from collision on ships to cargo even. All this was existing when the 1890 Act was enacted. But the statutes of 1840 and 1861 were not exhaustive and English courts could take cognizance for various wrongs either in tort or contract. Therefore when colonial courts were conferred jurisdiction it was not restricted or confined to statutes, as the power was being conferred on High Courts which were, then and even now, not only courts of unlimited civil jurisdiction but higher courts possessed of every jurisdiction which was not expressly or impliedly conferred on other courts. The word ‘otherwise’ literally means in a different way. Effect of its use in the 1890 Act in law, was to confer not only statutory jurisdiction possessed of by English courts but all that which was being exercised or was capable of being exercised either under custom and practice or for sake of equity and justice. The deliberate expansion of power and jurisdiction after existence of two statutes for nearly thirty years was founded on experience and necessity of arming the courts for every dispute that could arise relating to Admiralty jurisdiction, as the law on Admiralty was a growing law. Its development could not be striffled by its very nature. It was with this intention that the Parliament used the word, ‘otherwise’ in 1890 Act. No word in a statute has to be construed as surplusage. Nor it can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. The two legislations of 1840 and 1861 took care of those actions which appeared to be settled till then. But they did not close the door for the growth of law. They were enacted to ‘improve the Admiralty practice’ as the jurisdiction which were conferred by the statutes were already being exercised. Action in personam or rem were not unknown. It was provided statutory base only. Statutes till 1920 in England were not creation of new rights but recognition of what was existing by practice or custom. Thus, the jurisdiction to entertain a claim for tort or breach of contract by owner or master of ship while carrying cargo outside the port could be exercised or was capable of being exercised in 1890 by the High Court of England if occasion arose. [1066E-H; 1067A-F]

1.2. The rationale of extending jurisdiction in Admiralty over cargo carried into the port has been existence of a right in owner or consignee arising out of contract or agreement entered into between him and the master or owner of the ship. It was the enforcement of the right which was safeguarded by providing a remedy to arrest a ship if the goods were carried into any port. Same rationale applies to redress the owner of bill of lading if the master of the ship in breach of agreement entered into any port committed tort by acting against it in course of outward journey. Such breach would have been actionable and a suit could be filed in the court where agreement was entered. Basis of Maritime Law has been necessity to provide remedy for wrong done on high seas. Inclusion or expansion of jurisdiction was in relation to any cause which could have been cognisable under ordinary law. Bottomrey, salvage, seaman wages or towage are all causes for which action could be brought in court of law but their enforcement was rendered illusory with disappearance of the person beyond territorial waters. To overcome this difficulty jurisdiction was created making it actionable against person and finally the res itself. What was basic was the existence of cause of action, arising out of tort or contract in relation to the master or owner of the ship. Applying this test, the cause of action arose in Indian territory and if the owner of the ship would have remained in this country a suit for breach of contract could have been filed. Therefore the owner of bill of lading was not precluded from approaching the Admiralty Court for redress when the foreign ship which was guilty of violations appeared in Indian waters. On this construction the colonial courts could exercise the jurisdiction in respect of cargo going outside the port in exercise of jurisdiction under the Act of 1890 not on statutes but as the High Court of England could exercise such power. [1067F-H; 1068A-D]

Yuri Maru; 1927 Appeal cases 906, distinguished. State of Madras v. C.C. Menon & Ors., [1955] 1 SCR 280, referred to. The Bold Buccleugh, [1851] 7 Moo. P.C. 267; The Hailey, L.R. 2 PC 193; The Ironsides, 167 English Reports 205; The St. Cloud, 167 English Reports 269; The Norway, 167 English Reports 347; The Hercules, 2 Dod. 371; The Jade, [1976] 1 All Eng. Reports 921, referred to. Halsbury’s Laws of England, 4th Ed. Vol. 1: Maritime Liens by D.R. Thomas; Maritime Law by Christopher Hill; Carter History of English Courts, referred to.

2. Without entering into any comparative study of jurisdiction of High court of England and the High Courts in our country, the one basic difference that exists today is that the English Courts derive their creation, constitution and jurisdiction from Administration of Justice Act or Supreme Court Act but the High Courts in our country are established under the Constitution. Under it, Article 225 preserved the jurisdiction, including inherent jurisdiction, which existed on the date the Constitution came into force and Article 226 enlarged it by making it not only a custodian of fundamental rights of a citizen but as repository power to reach its arms to do justice. A citizen carrying on business which is fundamental right cannot be rendered helpless on premise that the jurisdiction of High Courts stood frozen either under statute of England or any custom or practice prevailing there or the High Court of England cannot exercise the jurisdiction. A citizen of an independent republic cannot be left high and dry. The construction of law has to be in consonance with sovereignty of a state. The apprehension that assumption of such jurisdiction would be on general attributes of sovereignty is not well founded. This coupled with expansive jurisdiction that the High Courts enjoyed in relation to admiralty under the 1890 Act preserved under Article 225 of the Constitution provided justification for direction to arrest the ship, for the tortious act done by master or owner of the ship in respect of goods carried outside the port even if there was no specific provision like Section 6 of the 1861 Act. Entertaining a claim arising out of breach of contract in relation to cargo taken out of any Indian port pertains to jurisdiction. It must arise out of Statute. But the power to direct arrest of a ship in exercise of the jurisdiction is one relating to competency. The High Courts in India being courts of unlimited jurisdiction, repository of all judicial powers under the Constitution except what is excluded are competent to issue directions for arrest of foreign ship in exercise of statutory jurisdiction or even otherwise to effectuate the exercise of jurisdiction. [1069F-H; 1070A-F]

3. In the instant case, since the jurisdiction to entertain a suit on tort or contract in relation to cargo going out of the country in a ship is found to exist under 1890 Act, the High Court of Andhra Pradesh was competent to direct arrest of the foreign ship when it appeared in Indian waters. [1070F-G]

4. In respect of Colonial Courts of Admiralty Act the Law Commission recommended that the necessary substantive provisions of the English Statute may be incorporated into the Act so as to make it the comprehensive Indian law relating to courts of admiralty. Neither the law was made up-to-date and brought in line with international conventions on maritime law passed in 1952 etc. nor even the salient features of English law as amended by Administration of Justice Act, 1920, and 1956 were adopted. And rights and interests of citizen of the independent sovereign state continue to be governed by legislations enacted for colonies by the British Parliament. Various provisions in the 1890 Act have been rendered not only anomalous but even derogatory to the sovereignty of the State. It is hoped that the unfortunate state of affairs shall be brought to end at the earliest. [1062E-G]

&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 896 of 1992.
WITH
T.C. No. 27 of 1987.

From the Judgment and Order dated 26.4.1985 of the Andhra Pradesh High Court in O.S. Appeal No. 2 of 1984.

Raju Ramachandran and Jagan Mohan Rao for the Appellants.

G.L. Sanghi, S.K. Mehta, Dhruv Mehta, Aman Vachher and Arvind Verma for the Respondents.

The Judgment of the Court was delivered by THOMMEN, J.

We grant leave in SLP(C) No. 10542 of 1985 which arises from the order of the Division Bench of the Andhra Pradesh High Court affirming the finding of the learned Single Judge that the respondent’s suit against the appellants was maintainable and that the High Court was competent to try the same in exercise of its admiralty jurisdiction. The Transferred Case No. 27 of 1987 is the appeal filed by defendents 1 and 2 against the judgment of the learned Single Judge of the Andhra Pradesh High Court decreeing the suit. The case stood transferred to this Court pursuant to this Court’s Order dated 25.11.1986.

By our order dated August 28, 1991 we allowed Civil Appeal No. 3392 of 1991 filed by the 3rd defendant against the order of the High Court dismissing its petition for condonation of delay in presenting O.S.A.S.R. No. 39789 of 1988 in the High Court. We held that the appeal filed by the 3rd defendant had to be heard on the merits particularly on the question of law regarding the liability of the agent.

We shall now deal with the appeal arising from SLP (C) No. 10542 of 1985 where the only question is whether the learned Judges of the High Court have rightly held that the respondent’s suit was maintainable in respect of a cause of action alleged to have arisen on or after 1.2.1984 when the vessel, M.V. Elisabeth, was lying in the Port of Marmagao; on 8.2.1984 when the vessel left the Port without issuing bills of lading or other documents for the goods shipped as required by the plaintiff-shipper; and, subsequently when the goods were discharged and handed over to the consignee at the port of destination at Ras-Al-Khaimah, United Arab Emirates during the period from 13.2.84 to 19.2.84, notwithstanding the direction of the plaintiff not to deliver the goods by reason of the buyer’s failure to pay the agreed price. The 1st defendant, M.V. Elisabeth, is a vessel of foreign nationality and it is owned by the 2nd defendant which is a foreign company carrying on business in Greece, and the 3rd defendant is stated to be the local agent of the 2nd defendant at Goa.

The Planitiff is a private limited company having its registered office in Goa. The case of the plaintiff is that the defendants acted in “breach of duty” by leaving the port of Marmagao on 8.2.84 and delivering the goods to the consignee in breach of the plaintiff’s directions to the contrary, thereby committing conversion of the goods entrusted with them. The suit was instituted in Andhra Pradesh High Court invoking its admiralty jurisdiction by means of an action in rem. The vessel was arrested when it entered the Port of Vishakhapatnam on 13.4.84 after returning from foreign ports. On the owner of the vessel entering appearance and providing security by furnishing a Bank Guarantee under protest in the sum of Rs. 14,25,000 the vessel was released from detention.

The defendants moved an application in the High Court raising a preliminary objection to the jurisdiction of that Court. They contended that the plaintiff’s suit against a foreign ship owned by a foreign company not having a place of residence or business in India was not liable to be proceeded against on the admiralty side of the High Court by an action in rem in respect of a cause of action alleged to have arisen by reason of a tort or a breach of obligation arising from the carriage of goods from a port in India to a foreign port. They did not, however, contend that the alleged cause of action not having arisen in Andhra Pradesh, the suit ought not to have been filed in Andhra Pradesh. Their sole contention on the question of jurisdiction was as regards the lack of admiralty jurisdiction of any court in Andhra Pradesh or any other State in India to proceed in rem against the ship on the alleged cause of action concerning carriage of goods from an Indian port to a foreign port. The preliminary objection was overruled by the learned the learned Single Judge and his order was confirmed by the learned Judges of the Division Bench by their order which is challenged in S.L.P.(C) No. 10542 of 1985. The suit was finally decreed by the learned Single Judge and appeal therefrom is the subject-matter of the case transferred to this Court.

The crucial question for our consideration is, therefore, the dispute about jurisdiction. If that question were to be answered in favour of the defendants, it would be unnecessary to express any view on the merits of the Transferred Case, for the suit itself would then stand dismissed.

Mr. Raju Ramachandran, appearing for the appellants (defendants), raises a fundamental objection as to the assumption of admiralty jurisdiction over a foreign ship in respect of a claim arising in connection with the carriage of goods from an Indian port to a port outside India. The High Court, he says, ordered the arrest of the vessel in purported exercise of its jurisdiction on the admiralty side. The power of the High Court on the admiralty side is, however, contained in and confined to the provisions of the Admiralty Court Act, 1861 (24 & 25 Victoriae, Ch. 10) made applicable to India by the Colonial Courts of Admiralty Act, 1890 (53 & 54 Victoriae) of Admiralty (India) Act, 1891 (Act No. 16 of 1891) declaring certain Indian Courts of unlimited civil jurisdiction as colonial courts of admiralty and declaring the High Court of Judicature of Madras as one of such courts. Mr. Ramachandran does not dispute that by reason of the Andhra State Act, 1953, and the State Re- organisation Act, 1956 read with the Government of India Acts, 1915 and 1935 and the Constitution of India, the High Court of Andhra Pradesh has, like the High Courts of Madras, Bombay and Calcutta, such admiralty jurisdiction as was granted by the British Statutes referred to above. But the jurisdiction, counsel says, was not wider than what was granted under the British Statutes. The extent of admiralty jurisdiction and the judicial power peculiar to that jurisdiction, as conferred on the Indian High Courts, remained frozen as on the date of the Admiralty Court Act, 1861. The wider powers assumed by the British Courts under the subsequent statutes of that country did not enlarge the admiralty jurisdiction of the Indian High Courts. In the absence of any subsequent British or Indian statute widening the admiralty jurisdiction of the Indian Courts, the jurisdiction of the Andhra Pradesh High Court over a foreign ship by means of an action in rem does not extend to any matter falling outside the Admiralty Court Act, 1861. The only provision of that Act respecting cargo is what is contained in Section 6 which is confined to goods ‘carried into any Port in England or Wales in any Ship….’ Applying that provision to India by reason of the statutes referred to above, the Indian High Court exercising admiralty jurisdiction has no power to deal with any claim concerning outward cargo because Section 6 is confined to inward cargo. The plaintiff’s case is founded on certain facts which clearly fall outside the ambit of Section 6 of the admiralty Court Act, 1861. Consequently, the arrest of the vessel in purported exercise of admiralty jurisdiction in rem, concerning a claim relating to outward cargo, was null and void and of no effect. This argument, supported as it is by considerable scholarly research on the part of counsel, amounts to an invocation to admit incompetence and disability on the part of the Indian Judicial System to render justice for want of legislative grant of power. Counsel is fortified in his submission by certain decisions of Calcutta, Bombay and other High Courts. Mr. G.L. Sanghi, appearing for the respondent- plaintiff, on the other hand, submits that the impugned judgment of the High Court is sound and correct and requires no interference by this Court because what the High Court has stated is based on a realistic appreciation of the need for liberal construction of the statutes so as to support assumption of jurisdiction to render justice where justice is required to be done rather than resorting to a technical or narrow or pedantic construction resulting in a state of helplessness. Counsel says that every person has a right to approach the Court of the land for appropriate remedy in respect of claims against a foreign ship and its owner, and to deny him that right and to compel him to pursue remedy in a foreign country according to an unfamiliar system of law and practice in strange and uncertain conditions, and consequently incurring high expenses with all the uncertainties of such a pursuit, is unjust and uncalled for. All major systems of law the world over recognise the competence of the coastal State to assume jurisdiction over a foreign ship entering its waters in respect of certain well recognised claims, irrespective of where the cause of action arose or where the defendant has his place of residence or business. the reason for this wide exercise of jurisdiction is that the foreign owner being not available within jurisdiction, and the stay of the foreign ship in the waters of the coastal State being necessarily brief, jurisdiction over the ship has to be exercised by its arrest and detention by means of an action in rem. Counsel submits that the High Court being a Court of record with unlimited jurisdiction, it was never intended by the British Parliament that the admiralty power conferred on certain High Courts should remain frozen as on the date of the passing of the Admiralty Court Act, 1861 and the subsequent changes in the law of Great Britain should not widen the jurisdiction of the Indian High Courts. In any case, counsel submits, the colonial statutes should not be so construed as to stand in the way of the Indian High Courts exercising unlimited jurisdiction except where the jurisdiction is barred expressly of by necessary implication. In the absence of any such bar, the powers of the High Court are unlimited and there is no merit in the preliminary objection to the jurisdiction of the High Court.

The Andhra Pradesh High Court is the successor to the Madras High Court in respect of the territories transferred from Madras and included in the State of Andhra which was formed by the Andhra State Act, 1953 (Act 30 of 1953). Vishakhapatnam is one of the areas so included in the State of Andhra. Section 30 of this Act provides:

“30. Jurisdiction of Andhra High Court – The High Court of Andhra shall have, in respect of the territories for the time being included in the State of Andhra, all such original, appellate and other jurisdiction as, under the law in force immediately before the prescribed day, is exercisable in respect of the said territories or any part thereof by the High Court at Madras.”

The High Court of Andhra was redesignated as the High Court of Andhra Pradesh when the State was so named by the States Re-organisation Act, 1956. Section 52 of that Act provides :

“52. Jurisdiction of High Courts for new States. – The High Court for a new State shall have, in respect of any part of the territories included in that new State, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of that part of the said territories by any High Court or Judicial Commissioner’s Court for an existing State.”

In the port of Vishakhapatnam the Andhra Pradesh High Court has thus the same jurisdiction as was vested in the Madras High Court prior to the transfer of that territory. The question is as regards the extent and nature of that jurisdiction.

The powers of the Madras High Court are traceable to the Admiralty Court Act, 1861 (24 & 25 Victoriae c. 104) by reason person of the Letters Patent of 1865 read with the Colonial Courts of Admiralty Act, 1890 and the colonial Courts of Admiralty (India) Act, 1891. By the last two Acts, the Madras High Court was invested with the same admiralty jurisdiction as was vested in the High Court of England. The Letters Patent of 1865 declared that the High Court of Madras would and continue to be a court of record and that it would exercise ordinary, original and civil jurisdiction within its local limits to try and determine suits. The Government of India Act, 1915 declared that all the High Courts established by Letters Patent were courts of record and had such original and appellate jurisdiction including admiralty jurisdiction as had been vested in them by Letters Patent. The Government of India Act, 1935 declared that ‘every High Court shall be a court of record’ and that its jurisdiction, the law administered by it and the powers of the judges were the same as immediately before the commencement of Part III of that Act (sections 220 and 223). Article 225 of the Constitution of India declares :

“…the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this constitution :
Provided ”

Article 215 says :

“Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”.

In a number of decisions of the Calcutta and Bombay High Courts, the admiralty jurisdiction of the High Courts in India has been historically traced to the Charters of 1774 and 1798, as subsequently expanded and clarified by the Letters Patent of 1823, 1862 and 1865 read with the Admiralty Court Act, 1861, the Colonial Courts of Admiralty Act, 1890, and the Colonial Court of Admiralty (India) Act, 1891 and preserved by section 106 of the Government of India Act, 1915, section 223 of the Government of India Act, 1935 and Article 225 of the Constitution of India. The pre-constitution enactments have continued to remain in force in India as existing laws: See section 18 of the Indian Independence Act, 1947, and Article 372 of the Constitution of India. See Kamalakar Mahadev Bhagat v. Scindia Stream Navigation Co. Ltd., AIR 1961 Bombay 186; Mrs. Sahida Ismail v. Petko R. Salvejkov & Ors., AIR 1973 Bombay 18; Jayaswal Shipping Company v. ‘S.S. Leelavati’, AIR 1954 Calcutta 415; Rungta Sons Pvt. Ltd. & Anr. v. S.S. ‘Edison Mariner’ & Anr., 1961-62 (66) Calcutta Weekly Notes 1083 and Smt. Reena Padhi v. ‘Jagdhir’, AIR 1982 Orissa 57. The view taken in these decisions is that the admiralty jurisdiction of the High Court in India does not extend beyond the ambit of the provisions of the (English) Admiralty Court Act, 1861. Further expansion of the jurisdiction of the English High Court under various statutes did not expand the jurisdiction of the Indian High Courts. This means, no High Court in India has jurisdiction to order the arrest and detention of a foreign ship in an action in rem in respect of a cause of action relating to outward cargo, as distinguished from inward cargo.

The rationale of these decisions is that the chartered High Courts in India are Colonial Courts of Admiralty under Act 16 of 1891 exercising the same jurisdiction as was vested in the High Court of Admiralty of England under the Admiralty Court Act, 1861, and the subsequent merger of the English High Court of Admiralty with the English High Court of Justice in 1875 and the expansion of jurisdiction of that High Court under subsequent statutes did not expand the admiralty power of the Indian High Court of merge it with its ordinary original civil jurisdiction. P.B. Mukharji, J. of the Calcutta High Court in Jayaswal Shipping Company v. ‘S.S. Leelavati’, AIR 1954 Cal. 415, 421, highlights this aspect thus :

“… Courts of Admiralty are courts of specific jurisdiction and if a controversy does not come within their specific jurisdiction, they cannot entertain it, and in that respect are unlike the courts of residuary jurisdiction such as the Common Law Courts or in India the Courts of ordinary original civil jurisdiction.”

In National Co. Ltd. v. Asia Mariner, 72 CWN 635, 647, S.K. Mukherjea, J. of the Calcutta High Court states :

“The High Court at Calcutta as a Court of Admiralty is, therefore, a Court of prescribed jurisdiction. Its jurisdiction is prescribed by clause 26 of the Charter of 1774 and by section 2(2) of the Colonial Courts of Admiralty Act, 1890. The jurisdiction has not been extended or modified by any statute. None of the subsequent British statutes by which the Admiralty Jurisdiction of the High Court in England has been extended or affected have been made applicable to India.”

The High Court as a Court of Admiralty is thus treated as a separate entity exercising a distinct and specific or prescribed or limited jurisdiction. This reasoning is based on the assumption that the continuance in force of the Colonial Courts of admiralty Act, 1890 as an existing law carves out a distinct jurisdiction of the High Court limited in ambit and efficacy to what has been granted by the Admiralty Court Act, 1861, and that jurisdiction has remained stultified ever since. This restrictive construction is, in our view, not warranted by the provisions of the Constitution. The fact that the High Court continues to enjoy the same jurisdiction as it had immediately before the commencement of the Constitution, as stated in Article 225, does not mean that a matter which is covered by the Admiralty Court Act, 1861 cannot be otherwise dealt with by he High Court, subject to its own Rules, in exercise of its manifold jurisdiction, which is, unless barred, unlimited. To the extent not barred expressly or by necessary implication, the judicial sovereignty of this country is manifested in the jurisdiction vested in the High Courts as superior courts.

S.K. Mukherjea, J., however, continues (ibid, para 94): “The Admiralty Court Act, 1861, although repealed in part in relation to Enlgand and Wales, remains in force in India. None of the subsequent English statutes relating to Admiralty jurisdiction over cargo claims or contract of carriage have been made applicable to the High Courts in India exercising jurisdiction in Admiralty.”

A similar view is echoed in other decisions on the point. In Kamalakar Mahadev Bhagat, v. Scindia Steam Navigation co. Ltd. AIR 1961 Bombay 186, a learned Judge of the Bombay High Court stated :

“….It will thus be seen that the High Court of judicature at Bombay in particular being one of the Colonial Courts of Admiralty under Act 16 of 1891 today exercises the same admiralty jurisdiction as was exercised by the High Court of Admiralty in England in 1890 when the Colonial Courts of Admiralty Act was passed by the British Parliament. We have, therefore, to examine and ascertain as to what was the scope and nature of jurisdiction of the High Court of Admiralty in England either under any statute or otherwise in the year 1890, because, it would be just that jurisdiction which is exercisable by the High Court of Judicature at Bombay down to date.” (p. 190)

With respect we disagree. All this is reminiscent of a bygone age. The learned Judge failed to take note of the fact that in 1890 the Court of Admiralty had ceased to be a separate and distinct institution. By the Judicature Act of 1873, the High Court of Admiralty was merged with the High Court of Justice. It is, however, true that the substantive powers in admiralty matters were derived from the Admiralty Court Act, 1861, and those powers were not widened until 1920. The learned Judge further observes:

“… In my opinion, therefore, the present suit falls within the exclusive Admiralty jurisdiction of the High Court and could not have been filed on the Ordinary Original Side of the High Court, much less in the City Civil Court. In this view of the matter, I am unable to agree with the view expressed by the learned Principal Judge of the City Civil Court that actions in personam used to be entertained in the Common Law Courts in England in respect of damage done by ship on the high seas and that even at present in England it is open to a suitor to file an action in personam in the King’s Bench Division in respect thereof. In my opinion, no such action ever lay in the Common Law Courts of England, nor can it ever lie in the Queen’s Bench Division of the High Court of England at the present time…”. (p.200 ibid.)

All this observation, as we shall presently see, is inconsistent with the true character of the constitution of the courts in England and the powers exercised by them consequent upon the statutory changes between 1873 and 1981. It is true that the Colonial statutes continue to remain in force by reason of Article 372 of the Constitution of India, but that does not stultify the growth of law or blinker its vision or fetter its arms. Legislation has always marched behing time, but it is the duty of the Court to expound and fashion the law for the present and the future to meet the ends of justice.

We do not accept the reasoning of the High Court in the decisions cited above on the question of jurisdiction, whatever be the correctness of their decisions on the peculiar facts of those cases in regard to which we express no view. But the narrow view adopted in those decisions on the source and ambit of the admiralty jurisdiction of the High Courts is, in our opinion not warranted.

Mr. Ramachandran has laid much stress on the section of the Privy Council in The Yuri Maru v. The Woron, 1927 AC 906, which was relied on by the Bombay High Court in Mrs. Sahida Ismail (supra) to come to the conclusion, which it did, as to the lack of jurisdiction of the Indian High Courts to go beyond what was permitted by the Colonial Courts of Admiralty Act, 1890.

Before we deal with the decision of the Privy Council, it is important to notice that the Colonial Courts of Admiralty were vested with the same admiralty jurisdiction which was vested in the High Court of England ‘whether existing by virtue of any statute or otherwise’ and they were entitled to exercise the same jurisdiction in like manner and to the same extent as the High Court in England. We shall now read the provisions of the Colonial Courts of Admiralty Act, 1890, so far as they are material.

“2. (1). Colonial Courts of Admiralty – Every Court of law in a British possession, which is for the time being declared in pursuance of this Act to be a court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a court of Admiralty, with the jurisdiction is this Act mentioned, and may for the purpose of that jurisdiction exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty ……………………….

(2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters, and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations.

(3)………………………………

Provided as follows :

(a) Any enactment in an Act of the Imperial Parliament referring to the Admiralty jurisdiction of the High Court in England, when applied to a Colonial Court of Admiralty in a British possession, shall be read as if the name of that possession were therein substituted for England and Wales; and ”
(emphasis supplied)

These provision show that the admiralty jurisdiction conferred on the Colonial Courts of Admiralty was identical to that of the High Court in England. The Colonial Courts of Admiralty were, in relation to their respective territories, invested with the same jurisdiction ’over places, persons, matters and things” as in the case of the English High Court in respect of England and Wales. This jurisdiction was derived from the statutes which then existed in England – namely, the Admiralty Court Acts of 1840 and 1861, as well as from other sources such as custom and practice as recognised by the Courts exercising admiralty jurisdiction. This is clear from the words “whether existing by virtue of any statute or otherwise”. The proviso makes the position even clearer. What the Colonial Courts of Admiralty Act, 1890 did was not to incorporate any particular English Statute into Indian law for the purpose of conferring admiralty jurisdiction, but to assimilate the competent courts in India to the position of the English High Court in the exercise of admiralty jurisdiction. It would, therefore, appear that any expansion of Admiralty jurisdiction of the High Court in England was intended likewise to expand the jurisdiction of the Colonial Court of Admiralty. This should have been regarded as the position with respect to a Colonial Court of unlimited jurisdiction.

Section 3 of this Act provides :

“(3) – The legislature of a British possession may by any Colonial law –

(a) declare any court of unlimited civil jurisdiction, whether original or appellate, in that possession to be a Colonial Court of Admiralty…”

(b) confer upon any inferior or subordinate court in that possession such partial or limited Admiralty jurisdiction under such regulations and with such appeal (if any) as may seem fit:

Provided that any such Colonial law shall not confer any jurisdiction which is not by this Act conferred upon a Colonial Court of Admiralty.”

Section 3 thus draws a distinction between courts of unlimited jurisdiction falling under clause (a) and courts of limited jurisdiction falling under clause (b). The admiralty jurisdiction of the former was wider than that which was conferred on the latter.

Section 7 confers power to make rules of court to regulate the procedure and practice of the court in the exercise of its admiralty jurisdiction. This section provides :-

“S.7. (1) Rules of court for regulating the procedure and practice (including fees and costs) in a court in a British possession in the exercise of the jurisdiction conferred by this Act, whether original or appellate, may be made by the same authority and in the same manner as rules touching the practice, procedure, fees, and costs in the said court in the exercise of its ordinary civil jurisdiction respectively are made.

………………………….

(2) ………………………..

(3) Such rules may provide for the exercise of any jurisdiction conferred by this Act by the full court, or by any judge or judges thereof, and subject to any rules, where the ordinary civil jurisdiction of the court can in any case be exercised by a single judge, any jurisdiction conferred by this Act may in the like case be exercised by a single judge.”

By virtue of this provision, admiralty rules were made for Calcutta and Bombay High Courts. The Madras High Court adopted admiralty rules by virtue of the powers conferred by the Letters Patent of the High Court and the Government of India Act, 1915.

By Act 16 of 1891, certain courts in British India were declared to be Colonial Courts of Admiralty. The High Courts of Judicature at Fort William in Bengal, at Madras and at Bombay were three of the six Courts declared to be Colonial Courts of Admiralty.* The preamble to this Act, in so declaring, stated :-

“WHEREAS it is provided by the Colonial Courts of Admiralty Act, 1890, that the Legislature of a British possession may by any colonial law declare any Court of unlimited civil jurisdiction in that possession to be a Colonial Court of Admiralty;……………….”

It was because of the unlimited civil jurisdiction that was already vested in these High Courts that they were declared to be Colonial Courts of Admiralty having the same jurisdiction in extent and quality as was vested in the High Court of England by virtue of any statute or custom. The High Courts were declared to be competent to regulate their procedure and practice in exercise of admiralty jurisdiction in accordance with the Rules made in that behalf. There is, therefore, neither reason nor logic in imposing a fetter on the jurisdiction of these High Courts by limiting it to the provisions of an imperial statute of 1861 and freezing any further growth of jurisdiction. This is all the more true because the Admiralty Court Act, 1861 was in substance reappealed in England a long time ago. See Halsbury’s Laws of England 4th ed.* (1) The other Courts are : (a) The Court of the Recorder of Rangoon (b) The Court of the Resident at Aden (c) The District Court of Karachi. Vol.I(1), para 307; Halsbury’s Statutes of England, Vol. I, p.9 Assuming that the admiralty powers of the High Courts in India are limited to what had been derived from the Colonial Courts of Admiralty Act, 1890, that Act, having equated certain Indian High Courts to the High Court of England in regard to admiralty jurisdiction, must be considered to have conferred on the former all such powers which the latter enjoyed in 1890 and thereafter during the period preceding the Indian Independence Act, 1947. What the Act of 1890 did was, as stated earlier, not to incorporate any English statute into Indian law, but to equate the admiralty jurisdiction of the Indian High Courts over places, persons, matters and things to that of the English High Court. As the admiralty jurisdiction of the English High Courts expanded with the progress of legislation, and with the repeal of the earlier statutes, including in substance the Admiralty Court Acts of 1840 and 1861, it would have been reasonable and rational to attribute to the Indian High Courts a corresponding growth and expansion of admiralty jurisdiction during the pre- independence era. But a restrictive view was taken on the question in the decisions of the High Courts cited above.

There is no reason why the jurisdiction of the Indian High Courts should have been considered to have frozen and atrophied on the date of the Colonial Courts of Admiralty Act, 1890. If this had not been considered to have happened, and a liberal construction had been adopted by courts, the admiralty jurisdiction of the High Court would in any case have been considered to have progressed up to the level of the English Administration of Justice Act, 1928, which was the last of a series of enactments in England on the subject prior to 1947, and consequently the Indian High Court would have been treated as a consolidated court on the basis of (English) Supreme Court of Judicature (Consolidation) Act, 1925, exercising identical and unlimited jurisdiction, and not a distinct or ‘prescribed’ admiralty jurisdiction, limited and confined to the Admiralty Court Act, 1861, as it is now treated to be by some of the High Courts in the decisions cited above. All this is perhaps the result of the reasoning in the decision of the Privy Council in The Yuri Maru v. The Waron, 1927 AC 906.

The Yuri Maru which arose from Canada concerned the jurisdiction of the Exchequer Court. The decision is summarised in the head note as follows:

“The effect of s. 2, sub-s 2, of the Colonial Courts of Admiralty Act, 1890 (Imp.) is to limit the jurisdiction of Colonial Courts of Admiralty established under the Act to the Admiralty jurisdiction of the High Court of England, as it existed at the passing of the Act; the extension of the Admiralty jurisdiction of the High Court by the Administration of Justice Act, 1920 (Imp.), s.22, repealed and re-enacted by the Supreme Court of Judicature (Consolidation) Act, 1925 (imp.), s.22, does not apply to Colonial Courts of Admiralty. Consequently, the Exchequer Court of Canada, which was established by the Admiralty Act (R.S. Can., 1906, c.141) as a Colonial Court of Admiralty, has not, under s. 22, sub-s. 1(xii), of the above Imperial Act of 1925, jurisdiction in rem to try an action for damages for breach of a charterparty.
………………”

The Privy Council thus rejected the contention that the jurisdiction of the Canadian Court of Admiralty was automatically extended with the progress of legislation in England widening the admiralty jurisdiction of the English High Court. Nevertheless, the Privy Council significantly left it to the Canadian legislature to pass appropriate laws for widening the jurisdiction of the Canadian Courts. Speaking for the Board, Lord Merrivale concluded :-

“On the whole, the true intent of the Act appears to their Lordships to have been to define as a maximum of jurisdictional authority for the Courts to set up thereunder, the Admiralty jurisdiction of the High Court in England as it existed at the time when the Act passed. What shall from time to time be added or excluded is left for independent legislative determination”.

The Exchequer Court of Canada was established by the Admiralty Act R.S. Canada, 1906, c. 141, as a Colonial Court of Admiralty. It is not clear whether that Court was in its jurisdiction comparable to the Indian High Courts. Assuming that it was comparable at the relevant time, and whatever be the relevance of The Yuri Maru (supra) to Courts like the Exchequer Court of canada, we see no reason why the jurisdiction of the Indian High Courts, governed as they now are by the Constitution of India, should on any way be subjected to the jurisdictional fetters imposed by the Privy Council in that decision. Legal history is good guidance for the future, but to surrender to the former is to lose the latter.
A short account of the English statutes on admiralty jurisdiction and the power exercised by the English Courts over foreign ships will be helpful in understanding the nature and extent of the admiralty jurisdiction of the Indian Courts. We shall, therefore, briefly discuss the salient features of the admiralty jurisdiction of the English Courts.

The customs and practices of the commercial and maritime courts and the Law Merchant administered by them and the jurisdiction assumed by the Admiral over ships and things at sea and the conflict which arose between the Court presided over by him and the common law and equity courts leading to curtailment of the powers of the Admiral and ultimately resulting in consolidation of all the courts by the Supreme Court of Judicature Act. 1873 (which came into force in 1875) are vividly described by eminent Scholars of English legal history and maritime law. See Holdworth’s A History of English Law, Volumes I, 5 and 8; Roscoe’s Admiralty Practice, 5th ed.; Marsden: Select Pleas of the Court of Admiralty, Volumes I and II; Law and Custom of the SEa, ibid Volumes I and II; Benedict on Admiralty, 6th ed. (1940) Vol. I; Gilmore and Black, Law of Admiralty, 1957.

The wide jurisdiction vested in the English Courts is derived from ancient principles of Maritime Law developed by custom and practice as well as from subsequent statutes many of which have incorporated the provisions of International Conventions unifying the laws practised in several maritime countries. It is beyond the scope of this judgment to embark on a survey of maritime history except to notice that both the Admiralty Court and the Common Law Courts claimed jurisdiction over cases governed by maritime law. Although admiralty Judges were often compelled to abandon jurisdiction to the Courts of Common Law in various matters, maritime cases involving hypothecation, salvages, torts committed on the high seas and the like, where the Common Law Courts could not give effective redress, were left to the jurisdiction of the admiralty Judges. The admiralty had, however, ‘fallen into a feeble and neglected condition and for long its proceedings excited no attention’. But in the Eighteenth Century, the learning and ability of Lord Stowell ‘raised the Court to a position of the highest importance’ (Roscoe’s Admiralty Practice, 5th ed. p. 14).

In the words of Holdswoth*, “Modern legislation has restored to the court of Admiralty many of the powers, and much of the jurisdiction of which it had been deprived in the seventeenth century. …But Admiralty law has lost the international character which it once possessed. It is essentially English Law. “The law which is administered in the Admiralty Court of England is the English maritime law. It is not the ordinary municipal law of the country, but it is the law which the English court Admiralty, either by Act of Parliament or by reiterated decisions and traditions and principles, has adopted as the English Maritime law**, ‘Neither the laws of the Rhodians, nor of Oleron, nor of Visby, nor of the Hanse towns, are of themselves any part of Admiralty law of England….But they contain many principles and statements of marine practice, which, together with principles found in the Digest, and in the French, and other Ordinances, were used by the judges of the English court of Admiralty, when they were moulding and reducing to form the principles and practice of their court’.***

The Admiralty Court Act, 1840 was the first of a series of statutes extending and defining the jurisdiction of the High Court of Admiralty in England. This Act was followed by the Admiralty Court Act, 1861 confering larger powers upon the High Court of Admiralty. Section 6 of this Act empowered the High Court of Admiralty to assume jurisdiction over foreign ships in respect of claims to cargo carried into any port in England or Wales.**** Significantly, the Act did not apply to outward cargo.

* A History of English Law, W.S. Holdswoth, vol. 1, pp. 558-59.
** The Gaetano and Maria, (1882) 7PD at p. 143.
*** The Gas Floot Whitton, N:2 (1896) P. at pp. 47. 48.”
***** The section reads :

“6. As to Claims for Damage to Cargo imported. – The High Court of Admiralty shall have Jurisdiction over any Claim by the Owner or Consignee or Assignee of any Bill of Lading of any Goods carried into any Port in England or Wales in any Ship. for Damage done to the Goods or any Part thereof by the Negligence or Misconduct of or for any Breach of Duty or Breach of Contract on the Part of the Owner. Master, or Crew of the Ship, unless it is shown to the Satisfaction of the Court that at the Time of the Institution of the Cause any Owner or Part Owner of the Ship is domiciled in England or Wales : Provided always, that if in any such Cause the Plaintiff do not recover Twenty Pounds he shall not be entitled to any Costs. Charges, or Expenses incurred by him therein, unless the Judge shall certify that the Cause was a fit one to be tried in the said Court.”(emphasis supplied) See the observation of Dr. Lushington in the “Kasan”(January 13, 1863) and in the “Bahia” (April 21, 1863 English Report, Vol. 167. p. 268, 298. Section 7 of the Act, however, conferred jurisdiction on the High Court of Admiralty “over any claim for damage done by any ship”. This Act was followed by the Judicature Act of 1873, which came into force in 1875 and which merged the High Court of Admiralty with the High Court of Justice resulting in a fusion of admiralty law, common law and equity. It is of interest to note that the provision contained in section 6 of the Admiralty Court Act, 1861 limiting the jurisdiction of the Admiralty Court to claims respecting inward cargo was discarded by the Administration of Justice Act, 1920 which extended the jurisdiction of the High Court to (a) any claim arising out of an agreement relating to the use or hire of a ship; (b) any claim relating to the carriage of goods in any ship, and (c) any claim in tort in respect of goods carried in any ship. The Act thus applied to both inward and outward cargoes.

The Admiralty Court Act, 1861 and the subsequent enactments were consolidated by the Supreme Court of Judicature (consolidation) Act, 1925. The admiralty jurisdiction of the English High Court was redefined by this Act to include various matters such as any claim “for damage done by a ship”; any claim “arising out of an agreement relating to the use or hire of a ship”; or “relating to the carriage of goods in a ship”; or “in tort in respect of goods carried in a ship”. This jurisdiction was, however, not available if “at the time of the institution of the proceedings any owner or part owner of the ship was domiciled in England” [See section 22 (1), (iv) and (vii)]. By the Administration of Justice Act, 1928, the jurisdiction vested in the High Court by the Supreme Court of Judicature (Consolidation) Act, 1925 was declared to belong to all divisions of the High Court. The admiralty Court was thus empowered to entertain, apart from actions in rem, any claim in personam which could be brought in any other division of the High Court.

By the Administration of Justice Act, 1956, the admiralty jurisdiction of the High Court was further widened and redefined so as to include not only the claims specified under section 1(i) of Part I but also “any other jurisdiction which either was vested in the High Court of Admiralty immediately before the date of the commencement of the Supreme Court of Judicature Act, 1873 (i.e., 1.11.1875), or is conferred by or under an Act which came into operation on or after that date on the High Court as being a court with Admiralty jurisdiction and any other jurisdiction connected with ships or aircraft vested in the High Court apart from this section which is for the time being assigned by rules of court to the Probate, Divorce and Admiralty Division”. Sub-Section (4) of this section removed the restriction based on the ownership of the ship. It says that the jurisdiction applied to all ships or aircraft, “whether British or not and whether registered or not and wherever the residence or domicile of their owners may be” and “in relation to all claims, wheresoever arising”. The jurisdiction in regard to the questions or claims specified under section 1(i) includes “any claim for damage done by a ship”, “any claim for loss of or damage to goods carried in a ship”, “any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship” [See clauses (d), (g) & (h)].

These claims are now specifically mentioned under clauses (e), (g) and (h) respectively of section 20(2) of the Supreme Court Act, 1981, amongst other claims, as falling under the Admiralty jurisdiction of the High Court. Part II of this Act is derived substantially from Part I of the 1956 Act which was enacted to give effect to the Brussels Convention of 1952 relating to the arrest of sea- going ships and the rules concerning civil jurisdiction in matters of collision (Cmd 8954). Section 20 of the Supreme Court Act, 1981 enumerates various questions and claims falling under the admiralty jurisdiction of the English High Court. Apart from matters covered by the Merchant Shipping Acts 1894 to 1979 [referred to in sub-section (3)] and certain other matters, various questions and claims are enumerated in sub-section (2). They include: “any claim for loss of or damage to goods carried in a ship; any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship; any claim for damage received by a ship; and any claim for damage done by a ship.*

* The specific questions and claims enumerated in sub- section (2) of section 20 of the Supreme Court Act, 1981 are :-
“(a) any claim to the possession or ownership of a ship or to the ownership of any share therein;
(a) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;
(b) any claim in respect of a mortgage of or charge on a ship or any share therein;
(c) any claim for damage received by a ship;
(d) any claim for damage done by a ship;
(e) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of – Sub-section (7) of this section specifically provides that the admiralty jurisdiction of the High Court extends to “all ships or aircrafts, whether British or not and wherever the residence or domicile of their owners may be, and to all claims wherever arising”.

It reads: Sub-Section (7). The preceding provisions of this section apply-

(a) in relation to all ships or aircraft, whether British or not and wherever the residence or domicile of their owners may be;

(i) the owners, charterers or persons in possession or control of a ship; or

(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods, on. in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship.

(f) any claim for loss of or damage to goods carried in a ship;

(g) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;

(h) any claim in the nature of salvage (including any claim arising by virtue of the application, by or under section 51 of the Civil Aviation Act 1949, of the law relating to salvage to aircraft and their apparel and cargo);

(i) any claim in the nature of towage in respect of a ship or an aircraft;

(j) any claim in the nature of pilotage in respect of a ship or an aircraft;

(k) any claim in respect of goods or materials supplied to a ship for her operation or maintenance :

(l) any claim in respect of the construction, repair or equipment of a ship or in respect of dock charges or dues;

(m) any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);
(n) any claim by a master, shipper, chartered or agent in respect of disbursements made on account of a ship;

(o) any claim arising out of an act which is or is claimed to be a general average act;

(p) any claim arising out of bottomry;

(q) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for droughts of Admiralty.”

(b) in relation to all claims, wherever arising (including, in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land); and

(c) so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and whether legal or equitable,including mortgages and charges created under foreign law:

Provided that nothing in this sub-section shall be construed as extending the cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Acts 1894 to 1979″.

This jurisdiction is wide enough to cover all claims in tort or contract arising out of any agreement for carriage of goods by sea.*

The whole jurisdiction of the English High Court is now vested in all the divisions alike. All Divisions of the High Court and all the Judges of that Court have equal power, authority and jurisdiction, although admiralty actions are assigned to the Queen’s Bench Division and taken up by the Admiralty Court. **The special requirements of an action in personam, namely, the habitual residence or place of business of the defendant or the cause of action having their nexus with England and Wales or the determination of a connected matter in the English High Court or the submission of the defendant to the jurisdiction of that court, are not applicable to a proceeding commenced as an admiralty action in rem. See O. 75, rule 4(3) of the Rules of the Supreme Court, 1965.***

The Civil Jurisdiction and Judgments Act, 1982 enacted into English Law and Scottish Law the EEC Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters.

Describing the unified court structure in England, Jackson sums up:

“The Admiralty Court developed independently, having its own battle with common law courts over jurisdictional boundaries.

* See the Principle stated in The Fehmam. (1958) 1 All E.R. 333.
** See Halsbury, op. cit. 4th ed. Vol. I(I) para 309. See also Supreme Court Act, 1981.
*** See also the editor’s general note on O.75. rule 5 on the practice of the English High Court.

During the 18th and early 19th centuries it influence and power decreased, but through statutes of 1840 and 1861 the court received a firm foundation on which it has built since. It came in from the cold into the general union of courts in 1873-5 and is now integrated into the High Court, being a branch of the Queen’s Bench Division.
……………………………………………..

Once under the umbrella of the unified court structure, common law and equitable principles became directly available in the Admiralty Court. No longer need claimants have to seek these elsewhere and no longer did jurisdictional boundaries necessarily indicate the availability of substantive rights and remedies.”

[D.C. Jackson, Enforcement of Maritime Claims, (1985) p. 8}

“The law of admiralty, or maritime law, …. (is the) corpus of rules, concepts, and legal practices governing … the business of carrying goods and passengers by water.” (Gilmore and Black, The Law of Admiralty, page (1). The vital significance and the distinguishing feature of an admiralty action in rem is that this jurisdiction can be assumed by the coastal authorities in respect of any maritime claim by arrest of the ship, irrespective of the nationality of the ship or that of its owners, or the place of business or domicile or residence of its owners or the place where the cause of action arose wholly or in part.

“….. In admiralty the vessel has a juridicial personality, an almost corporate capacity, having not only rights but liabilities (sometimes distinct from those of the owner) which may be enforced by process and decree against the vessel, binding upon all interested in her and conclusive upon the world, for admiralty in appropriate cases administers remedies in rem, i.e., against the property, as well as remedies in personam, i.e., against the party personally…”. Benedict, The Law of American Admiralty, 6th ed. Vol. I p.3.
Admiralty Law confers upon the claimant a right in rem to proceed against the ship or cargo as distinguished from a right in personam to proceed against the owner. The arrest of the ship is regarded as a mere procedure to obtain security to satisfy judgment. A successful plaintiff in an action in rem has a right to recover damages against the property of the defendant. ‘The liability of the shipowner is not limited to the value of the res primarily proceeded against … An action …. though originally commenced in rem, becomes a personal action against a defendant upon appearance, and he becomes liable for the full amount of a judgment unless protected by the statutory provisions for the limitation of liability’. (Roscoe’s Admiralty Practice, 5th ed. p.29)

The foundation of an action in rem, which is a peculiarity of the Anglo-American law, arises from a maritime lien or claim imposing a personal liability upon the owner of the vessel. A defendant in an admiralty action in personam is liable for the full amount of the plaintiff’s established claim. Likewise, a defendant acknowledging service in an action in rem is liable to be saddled with full liability even when the amount of the judgment exceeds the value of the res or of the bail provided. An action in rem lies in the English High Court in respect of matters regulated by the Supreme Court Act, 1981, and in relation to a number of claims the jurisdiction can be invoked not only against the offending ship in question but also against a ‘sistership’ i.e., a ship in the same beneficial ownership as the ship in regard to which the claim arose.

“The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. “Per Justice Story, The United States v. The Big Malek Adhel, etc., [43 US (2 How.) 210, 233 (1844)]

Merchant ships of different nationalities travel from port to port carrying goods or passengers. They incur liabilities in the course of their voyage and they subject themselves to the jurisdiction of foreign States when they enter the waters of those States. They are liable to be arrested for the enforcement of maritime claims, or seized in execution or satisfaction of judgments in legal actions arising out of collisions, salvage, loss of life or personal injury, loss of or damage to goods and the like. They are liable to be detained or confiscated by the authorities of foreign States for violating their customs regulations, safety measures, rules of the road, health regulations, and for other causes.

The coastal State may exercise its criminal jurisdiction on board the vessel for the purpose of arrest or investigation in connection with certain serious crimes. In the course of an international voyage, a vessel thus subjects itself to the public and private laws of various countries. A ship travelling from port to port stays very briefly in any one port.

A plaintiff seeking to enforce his maritime claim against a foreign ship has no effective remedy once it has sailed away and if the foreign owner has neither property nor residence within jurisdiction. The plaintiff may therefore detain the ship by obtaining an order of attachment whenever it is feared that the ship is likely to slip out of jurisdiction, thus leaving the plaintiff without any security.

A ship may be arrested (i) to acquire jurisdiction; or

(ii) to obtain security for satisfaction of the claim when decreed; or (iii) in execution of a decree. In the first two cases, the court has the discretion to insist upon security being furnished by the plaintiff to compensate the defendant in the event of it being found that the arrest was wrongful and was sought and obtained maliciously or in bad faith. The claimant is liable in damages for wrongful arrest. This practice of insisting upon security being furnished by the party seeking arrest of the ship is followed in the United States, Japan and other countries. The reason for the rule is that a wrongful arrest can cause irreparable loss and damages to the shipowner; and he should in that event be compensated by the arresting party. (See Arrest of Ships by Hill, Soehring, Hosoi and Helmer, 1985).

The attachment by arrest is only provisional and its purpose is merely to detain the ship until the matter has been finally settled by a competent court. The attachment of the vessel brings it under the custody of the marshal or any other authorized officer. Any interference with his custody is treated as a contempt of the court which has ordered the arrest. But the marshal’s right under the attachment order is not one of possession, but only of custody. Although the custody of the vessel has passed from the defendant to the marshal, all the possessory rights which previously existed continue to exist, including all the remedies which are based on possession. The warrant usually contains a monition to all persons interested to appear before the court on a particular day and show cause why the property should not be condemned and sold to satisfy the claim of the plaintiff.

The attachment being only a method of safeguarding the interest of the plaintiff by providing him with a security, it is not likely to be ordered if the defendant or his lawyer agrees to “accept service and to put in bail or to pay money into court in lieu of bail”. (See Halsbury’s Laws of England, 4th edn. Vol. 1, p. 375 etc.).

The service of the warrant is usually effected by affixing it on the main mast or single mast of the ship. A ship which has been arrested under an order of attachment may be released by the court if sufficient bail is put in to cover the claim of the plaintiff as well as the costs of the action. The sureties are liable for the amount entered in the bail bond.

If the ship or cargo under arrest before judgment has not been released by the defendant by putting in sufficient bail and if the property is found deteriorating, the court has the power to order the sale of the property after notice has been duly issued to the parties interested.

If the plaintiff has finally obtained a decree of condemnation and sale of the ship, the court will issue an order to the competent officer commanding him to sell the property, in execution of the decree, and to bring the proceeds into court. Thereupon the officer shall issue proper notice and arrange for the sale of the property by auction. The proceeds of the sale are paid into the registry of the court and shall be disposed of by the court according to law.

A personal action may be brought against the defendant if he is either present in the country or submits to jurisdiction. If the foreign owner of an arrested ship appears before the court and deposits security as bail for the release of his ship against which proceedings in rem have been instituted, he submits himself to jurisdiction.

An action in rem is directed against the ship itself to satisfy the claim of the plaintiff out of the res. The ship is for this purpose treated as a person. Such an action may constitute an inducement to the owner to submit to the jurisdiction of the court, thereby making himself liable to be proceeded against by the plaintiff in personam. It is, however, imperative in an action in rem that the ship should be within jurisdiction at the time the proceedings are started. A decree of the court in such an action binds not merely the parties to the writ but everybody in the world who might dispute the plaintiff’s claim.

It is by means of an action in rem that the arrest of a particular ship is secured by the plaintiff. He does not sue the owner directly and by name; but the owner or any one interested in the proceedings may appear and defend. The writ is issued to “owners and parties interested in the property proceeded against.” The proceedings can be started in England or in the United States in respect of a maritime lien, and in England in respect of a statutory right in rem. A maritime lien is a privileged claim against the ship or a right to a part of the property in the ship, and it “travels” with the ship. Because the ship has to “pay for the wrong it has done”, it can be compelled to do so by a forced sale. (See The Bold Buccleaugh, (1851) 7 Moo. PC 267). In addition to maritime liens, a ship is liable to be arrested in England in enforcement of statutory rights in rem (Supreme Court Act, 1981). If the owner does not submit to the jurisdiction and appear before the court to put in bail and release the ship, it is liable to be condemned and sold to satisfy the claims against her. If, however, the owner submits to jurisdiction and obtains the release of the ship by depositing security, he becomes personally liable to be proceeded against in personam in execution of the judgment if the amount decreed exceeds the amount of the bail. The arrest of the foreign ship by means of an action in rem is thus a means of assuming jurisdiction by the competent court.

The admiralty action in rem, as practised in England or in the United States, is unknown to the civil law. In countries following the civil law, all proceedings are initiated by actions in personam. The President of the Court having competence in the matter has the power to order an attachment of the ship if he is convinced that the plaintiff is likely to lose his security unless the ship is detained within jurisdiction. His hands are not fettered by the technicalities of an action in rem and the scope of the proceedings are not limited to maritime liens or claims.* According to the French law, arrest of a ship is allowed even in respect of non-maritime claims and whether or not the claimant is a secured or unsecured creditor. A vessel may be arrested either for the purpose of mobilising the vessel as security (Saisie conservatoire) or in execution of judgment (Saisie Execution) whether or not the claim has any relation to the vessel. Arrest of the vessel has the advantage of forcing the owner to furnish security to guarantee satisfaction of any decree that may be passed against him. On furnishing sufficient security with the Court, he is usually allowed to secure the release of the vessel. Maritime law is part of the general law of France and other ‘civil law countries’ and is dealt with by the ordinary courts or tribunals. The presence of any property belonging to the defendant within the territorial jurisdiction confers jurisdiction on the French Court. (See the observation of Lord Diplock in The Jade (1976) 1 All. E.R. 921, 923).

* See D.C. Jackson, Enforcement of Maritime Claims, (1985) Appendix 5, p. 437 et seq.

The real purpose of arrest in both the English and the Civil Law systems is to obtain security as a guarantee for satisfaction of the decree, although arrest in England is the basis of assumption of jurisdiction, unless the owner has submitted to jurisdiction. In any event, once the arrest is made and the owner has entered appearance, the proceedings continue in personam. All actions in the civil law – whether maritime or not – are in personam, and arrest of a vessel is permitted even in respect of non-maritime claims, and the vessel is treated as any other property of the owner, and its very presence within jurisdiction is sufficient to clothe the competent tribunal with jurisdiction over the owner in respect of any claim. (See D.C.Jackson, Enforcement of Maritime Claims, (1985) Appendix 5). Admiralty actions in England, on the other hand, whether in rem or in personam, are confined to well defined maritime liens or claims and directed against the res(ship, cargo and freight) which is the subject-matter of the dispute or any other ship in the same beneficial ownership as the res in question. Maritime law is as much a part of the general legal system as any other branch of the law. With the merger of the Admiralty and Common Law Courts in England in 1875 and the fusion of their legal precepts and concepts, this branch of the law, despite its peculiarities about actions in rem, is no longer treated as a separate and independent branch. It is not the exclusive preserve of the English High Court, for certain county courts in that country are specially authorised to exercise this jurisdiction. This is much more true of the civil law system where no distinction is drawn between maritime law and other branches of the law, and they are administered alike by the same courts or tribunals.

It may not be correct to say that the admiralty jurisdiction of the English Courts is dependent entirely on statutes. It may be true in a very limited sense as regards the jurisdiction of the High Court after the merger of the High Court of Admiralty with the High Court of Justice by the Supreme Court of Judicature Act, 1873 which came into force in 1875: See Supreme Court of Judicature (Commencement) Act, 1874. Even so, statutes are codifications of legal principles developed by the decisions of Courts and those principles remain the life-blood of the statutes. The observation of Lord Diplock in The Jade (1976) 1 All. E.R. 920, on which much reliance is placed by Mr. Ramachandran in support of his arguments, has to be so understood. (See also Halsbury’s Laws of England, Vol. 1, para 307).

Remedy for enforcement of maritime liens was available prior to the introduction of statutes. “Admiralty law was derived from the laws of Oleron, supplemented by the civil law” Per Lord Halsbury, L.C; Currie v. M.Knight, [1897] AC 97.

For a long time the Admiralty Court developed the law independently fighting its battles with the Common Law Courts on the question of jurisdictional boundaries. By statutory intervention the court structure came to be unified and substantive rights and remedies became available without regard to jurisdictional boundaries. Although statutes now control the field, much of the admiralty law is rooted in judicial decisions and influenced by the impact of civil law, common law and equity. The ancient maritime codes like the Rhodian Sea Law, the Basilika, the Assizes of Jerusalem, the Rolls of Oleron, the Laws of Visby, the Hanseatic Code, the Black Book of the British Admiralty, Consolato del Mare, and others are, apart from statute, some of the sources from which the law developed in England. Any attempt to confine admiralty or maritime law within the bounds of statutes is not only unrealistic but incorrect. Although this branch of the law in England is now governed generally by statutes, the law in all its aspects can be understood only by viewing it in the context of decisions of courts and the general principles which are common to common law and equity.

Unlike in the “civil law countries”, there is no maritime code in England containing all aspects of maritime law. The Merchant Shipping Acts and the Carriage of Goods by Sea Act contain the substantive rules, but the jurisdictional and other aspects of maritime claims have to be traced to numerous other statutes and sources. English Maritime Law ‘is still composed of rules having their roots in statute, rules of court and judicial doctrine of Admiralty, common law and equity’. (See D.C. Jackson, Enforcement of Maritime Claims, 1985, p.9). See also Halsbury, op. cit., Vol. (1), para 307. As Christopher Hill puts it: “….. Britain is a common law country and that Admiralty law has been superimposed over the years by various statutory enactments from time to time. The right to seize a vessel by legal process is therefore partly based on rights conferred by general maritime law and partly upon the right to take legal action of this nature granted by statute ….”. Maritime Law, 2nd ed. p. 93.

In tracing the history of admiralty law in India, it is likewise misleading and incorrect to confine it to statutes. Statutes have been codifications of rules of law as developed by usage, practice and custom. As stated by Westropp, C.J., of the Bombay High Court in Bardot & Anr. v. The American Ship Or Vessel ‘Augusta’, 1873(x) Bombay High Court Reports, 110, at p. 113:-

“…If we have jurisdiction to entertain this suit, it must be sought for in the general maritime law administered by Courts of Admiralty …………………………………………… …. we must hold it to be quite clear that the Statutes 3 & 4 Vict. c. 65 (1840), 24 Vict. c. 10 (1861), and 26 & 27 Vict. c. 24 (1863), do not increase or in any wise affect our jurisdiction either in Admiralty or Vice-Admiralty, and that if we have jurisdiction to entertain this cause, that jurisdiction must be sought for outside those Statutes.”

Where statutes are silent and remedy has to be sought by recourse to basic principles, it is the duty of the court to devise procedural rules by analogy and expediency. Actions in rem, as seen above, were resorted to by courts as a device to overcome the difficulty of personal service on the defendant by compelling him to enter appearance and accept service of summons with a view to furnishing security for the release of the res; or, in his absence, proceed against the res itself, by attributing to it a personality for the purpose of entering a decree and executing the same by sale of the res. This is a practical procedural device developed by the courts with a view to rendering justice in accordance with substantive law not only in cases of collision and salvage, but also in cases of other maritime liens and claims arising by reason of breach of contract for the hire of vessels or the carriage of goods or other maritime transactions, or tortious acts, such as conversion or negligence occurring in connection with the carriage of goods. Where substantive law demands justice for the party aggrieved, and the statute has not provided the remedy, it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice. To the courts of the “civil law countries” in Europe and other places, like problems seldom arise, for all persons and things within their territories (including their waters) fall within their competence to deal with. They do not have to draw any distinction between an action in rem and an action in personam.

It is likewise within the competence of the appropriate Indian Courts to deal, in accordance with the general principles of maritime law and the applicable provisions of statutory law with all persons and things found within their jurisdiction. The power of the court is plenary and unlimited unless it is expressly or by necessary implication curtailed. Absent such curtailment of jurisdiction, all remedies which are available to the courts to administer justice are available to a claimant against a foreign ship and its owner found within the jurisdiction of the concerned High Court. This power of the court to render justice must necessarily include the power to make interlocutory orders for arrest and attachment before judgment.

The High Court in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers. (See Naresh Shridhar Mirajkar and Ors., v. State of Maharashtra and Anr., [1966] 3 SCR 744. As stated in Halsbury’s Laws of England. 4th edition, Vol. 10, para 713 : “Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.”

The observation of this Court in Raja Soap Factory and Others v. S.P. Shantharaj and Others, [1965] 2 SCR 800, that section 151 of the Code of Civil Procedure did not confer on the High Court jurisdiction which was not specifically vested was made in the context of section 105 of the Trade and Merchandise Marks Act (43 of 1958) which conferred a specific jurisdiction in respect of a passing off action. That observation is not relevant to the question regarding the inherent and plenary jurisdiction of the High Court as a superior court of record. The Andhra Pradesh High Court, as a successor to the Madras High Court, is vested with all the appellate and original jurisdiction, including admiralty jurisdiction to order the arrest and detention of a ship.

In decisions such as Jayaswal Shipping Company v. ‘S.S. Leelavati’, AIR 1954 Calcutta 415; Kamalakar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd., Bombay, AIR 1961 Bombay 186; Rungta Sons Private Ltd. & Anr. v. S.S. ‘Edison Mariner’ & Anr., 1961-62 (66) Calcutta Weekly Notes 1083; National Co. Ltd. v. Asia Mariner, 1967-68 (72) Calcutta Weekly notes 635; Mrs. Sahida Ismail v.Petko R. Salvejkov & Ors., AIR 1973 Bombay 18 and Smt. Reena Padhi v. ‘Jagdhir’, AIR 1982 Orissa 57, the High Courts took an unduly restrictive view of the courts’ admiralty jurisdiction by limiting it to what was permitted by the Admiralty Court Act, 1861 and the Colonial Courts of Admiralty Act, 1890. This was, in our view, an unjustified abdication of jurisdiction and a self-assumed fetter on competence to render justice.

In equating the admiralty jurisdiction of the Indian High Court to that of the English High Court, the Colonial Court of Admiralty Act, 1890 significantly refers to the admiralty jurisdiction of the High Court in England ‘whether existing by virtue of any statute or otherwise’. This is an enabling statute, and not a statute of limitation of power. It aids, and does not fetter, the growth of jurisdiction. There is no reason why the words ‘statute or otherwise’ should be so construed as to exclude the various sources from which the admiralty jurisdiction in England developed. Apart from statutes, the powers of that Court, as seen above, were derived from custom and practice and the principles developed by common law and equity as well as by the generally recognised principles of civil law developed and practised in Europe. There is no reason, as rightly stated by Westropp. C.J. of the Bombay High Court in Bardot (supra), why the expression ‘statute or otherwise’ should be so construed as to exclude all these vast areas of legal principles which enriched and strengthened the maritime laws of England. Likewise, there is no reason why those principles should also not be drawn upon to enrich and strengthen the jurisprudence of this country, even if the jurisdiction of our courts were to be, by compulsions of history, considered to be curtailed and dovetailed to the colonial past – a proposition which is neither correct nor consistent with our status as a sovereign republic. It is time to take a fresh look at the old precedents.

In this connection we would refer to the recent decision of this Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat & Ors., JT 1991 (3) SC 617.

This Court stated :
“…..The constitution has assigned a new role to the Constitutional Courts to ensure rule of law in the country…… Time has come to have a fresh look at the old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution. ”

See also S.P. Gupta v. Union of India, [1982] 2 SCR, 365, 520-521, 597-598.

It is well recognised in international law that a merchant ship, though generally governed by the laws of the flag State, subjects itself to the jurisdiction of a foreign State as it enters its waters. The Geneva Convention on the Territorial Sea and Contiguous Zone, 1958 and the Law of the Sea Convention, 1982 affirm that the sovereignty of a State extends over its internal and territorial waters.*

“A foreign vessel, no matter what flag she flies, owes temporary and local allegiance to the sovereign of any port to which she comes. And the persons in such a vessel likewise must obey the law and regulations of the port. Such jurisdiction is discretionary. Once a foreign vessel passes out of territorial waters, she owes no further duty to the place which she has left, unless she is ‘hotly persued’. But her conduct on the high seas or in foreign ports may subject her to penalties on returning on a subsequent visit”. (Benedict, The Law of American Admiralty, Sixth Edition, pages 121 & 122).

In the words of Chief Justice Marshal of the United States Supreme Court “it would be obviously inconvenient and dangerous to society and would subject the laws to continual infraction, and the government to degradation, if such (alien) individuals or merchants (trading in ships) did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.” (The Schooner Exchange v. M’ Faddon & Ors.,

* See Nagendra Singh, International Maritime Law Conventions, British Shipping Laws, Vols. I to IV. [1812] 11 U.S. (7 Cranch) 114, 143.)

All foreign merchant ships and persons thereon fall under the jurisdiction of a coastal State as they enter its waters. Subject to the right of ‘innocent passage’, the coastal State is free to exercise jurisdiction over such ships in respect of matters the consequence of which extend beyond the ships. Such ships are subject to the local jurisdiction in criminal, civil and administrative matters. This jurisdiction is, however, assumed only when, in the opinion of the local authorities, the peace or tranquillity of the port is disturbed, when strangers to the vessel are involved or when the local authorities are appealed to. Questions which affect only the internal order and economy of the ship are generally left to the authorities of the flag State. Coastal States are entitled to assume jurisdiction in respect of maritime claims against foreign merchant ships lying in their waters. These ships are liable to be arrested and detained for the enforcement of maritime claims. The courts of the country in which a foreign ship has been arrested may determine the cases according to merits, provided they are empowered to do so by the domestic law of the country or in any of the cases recognised by the International Convention relating to the Arrest of Seagoing Ships, Brussels, 1952.* The maritime claims in respect of which the power of arrest is recognised in law include claims relating to damage caused by any ship either in collision or otherwise; claims relating to carriage of goods in any ship whether by charterparty or otherwise, loss of or damage to goods etc. These principles of international law, as generally recognised by nations, leave no doubt that, subject to the local laws regulating the competence of courts, all foreign ships lying within the waters of a State, including waters in ports, harbours, roadsteads, and the territorial waters, subject themselves to the jurisdiction of the local authorities in respect of maritime claims and they are liable to be arrested for the enforcement of such claims.

In India, carriage of goods by sea is governed by the Indian Bills of Lading Act, 1856, the Indian Carriage of Goods by Sea Act, 1925, the Merchant Shipping Act, 1958, and general statutes, such as the Marine Insurance Act, 1963, the Contract Act, 1872, the Evidence Act, 1872, the Indian Penal Code, 1860, the Transfer of Property Act, 1882, the Civil Procedure Code, 1908, the Criminal Procedure Code, 1973, the Companies Act, 1956, etc.etc. as well as the general principles of law such as the law of tort, public and private international law etc. In this connection, reference may also be made to the Indian Ports Act, 1908 and the Major Port Trusts Act, 1963 concerning the administration of the port and the jurisdiction over ships in port, the Customs Act, 1962 containing various regulatory measures affecting ships, goods and persons in connection with importation or exportation of goods, as well as the provisions governing employment of labour. The Indian Bills of Lading Act, 1856 emphasises the negotiable and other characteristics of a bill of lading. The Carriage of Goods by Sea Act, 1925, contains the Hague Rules regulating the respective rights and liabilities of the parties to a contract governed by bills of lading or similar documents of title for carriage of goods by sea “from any port in India to any other port whether in India or outside India”. The Merchant Shipping Act embodies rules regarding registration of Indian ships; transfers or mortgages of ships or shares; national character and flag; employment of seamen; safety, nuclear ships; collisions, accidents at sea and liability; limitation of liability; navigation; prevention of pollution; investigation and enquiries; wreck and salvage; coasting trade; sailing vessels; penalties and procedure, etc. Many of these provisions have been adopted from rules formulated by various international conventions.

* See also the International Conventions for the Unification of Certain Rules relating to Maritime Liens and Mortgages of 10th April, 1926 and May 27, 1967.

It is true that Indian statutes lag behind the development of international law in comparison to contemporaneous statutes in England and other maritime countries. Although the Hague Rules are embodied in the Carriage of Goods by Sea Act, 1925, India never became a party to the International Convention laying down those rules (Internationl Convention for the Unification of Certain Rules of Law relating to Bills of Lading, Brussels 1924). The Carriage of Goods by Sea Act, 1925 merely followed the (United Kingdom) Carriage of Goods by Sea Act, 1924. The United Kingdom repealed the Carriage of Goods by Sea Act, 1924 with a view to incorporating the Visby Rules adopted by the Brussels Protocol of 1968. The Hague-Visby Rules were accordingly adopted by the Carriage of Goods by Sea Act, 1971 (United Kingdom). Indian legislation has not, however, progressed, notwithstanding the Brussels Protocol of 1968 adopting the Visby Rules or the United Nations Convention on the Carriage of Goods by Sea, 1978 adopting the Hamburg Rules. The Hamburg Rules prescribe the minimum liabilities of the carrier far more justly and equitably than the Hague Rules so as to correct the tilt in the latter in favour of the carriers. The Hamburg Rules are acclaimed to be a great improvement on the Hague Rules and far more beneficial from the point of view of the cargo owners. India has also not adopted the International Convention relating to the Arrest of Sea-going Ships, Brussels, 1952. Nor has India adopted the Brussels Conventions of 1952 on civil and penal jurisdiction in matters of collision; nor the Brussels Conventions of 1926 and 1967 relating to maritime liens and mortgages.* India seems to be lagging behind many other countries in ratifying and adopting the beneficial provisions of various conventions intended to facilitate international trade. Although these conventions have not been adopted by legislation, the principles incorporated in the conventions are themselves derived from the common law of nations as embodying the felt necessities of international trade and are as such part of the common law of India and applicable for the enforcement of maritime claims against foreign ships.

The Merchant Shipping Act, 1958 contains various provisions to enforce territorial jurisdiction. The Act being essentially regulatory in character, the various authorities, tribunals and Courts entrusted with the administration and enforcement of its provisions are specifically stated. The High Court is defined under section 3(15) as follows :
“3(15). ‘High Court’, in relation to a vessel, means the High Court within the limits of whose appellate jurisdiction –

(a) the port of registry of the vessel is situate;

(b) the vessel is for the time being; or

(c) the cause of action wholly or in part arises;”

(a) International Convention relating to the Arrest of Seagoing Ships, Brussels, 10 May 1952 (IMC);

(b) International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision, Brussels, 10 May 1952 (IMC);

(c) International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision, Brussels, 10 May 1952 (IMC); and

(d) International Conventions for the Unification of Certain Rules of Law relating to Maritime Liens and Mortgages Brussels, 10 April 1926, and the Revised Convention on Maritime Liens and Mortgages, Brussels, 29 May 1967 (IMC).

Accordingly, a foreign ship falls within the jurisdiction of the High Court where the vessel happens to be at the relevant time – i.e., at the time when the jurisdiction of the High Court is invoked, or, where the cause of action wholly or in part arises.

The detention of a foreign ship is authorised in terms of sections 443 and 444. In view of their vital significance in the enforcement of maritime jurisdiction, we shall read these two sections in full. Section 443 defines the character and scope of the power of detention:

“S. 443. Power to detain foreign ship that has occasioned damage. – (1) Whenever any damage has in any part of the world been caused to property belonging to the Government or to any citizen of India or a company by a ship other than an Indian ship and at any time thereafter that ship is found within Indian jurisdiction, the High Court may, upon the application of any person who alleges that the damage was caused by the misconduct or want of skill of the master or any member of the crew of the ship, issue an order directed to any proper officer or other officer named in the order requiring him to detain the ship until such time as the owner, master or consignee thereof has satisfied any claim in respect of the damage or has given security to the satisfaction of the High Court to pay all costs and damages that may be awarded in any legal proceedings that may be instituted in respect of the damage, and any officer to whom the order is directed shall detain the ship accordingly.

(2) Whenever it appears that before an application can be made under this section, the ship in respect of which the application is to be made will have departed from India or the territorial waters of India, any proper officer may detain the ship for such time as to allow the application to be made and the result thereof to be communicated to the officer detaining the ship, and that officer shall not be liable for any costs or damages in respect of the detention unless the same is proved to have been made without reasonable grounds.

(3) In any legal proceedings in relation to any such damage aforesaid, the person giving security shall be made a defendant and shall for the purpose of such proceeding be deemed to be the owner of the ship that has occasioned the damage.”
(emphasis supplied)

The power of enforcement of an order of detention of a foreign ship is dealt with by section 444.

“S. 444. Power to enforce detention of ship. – (1) Where under this Act a ship is authorised or ordered to be detained, any commissioned officer of the Indian Navy or any port officer, pilot, harbour master, conservator of port or customs collector may detain the ship.

(2) If any ship after detention, or after service on the master of any notice of, or order for, such detention proceeds to sea before she is released by competent authority, the master of the ship shall be guilty of an offence under this sub-section.

(3) When a ship so proceeding to sea takes to sea, when on board thereof in the execution of his duty any person authorised under this Act to detain or survey the ship, the owner, master or agent of such ship shall each be liable to pay all expenses of, and incidental to, such person being so taken to sea and shall also be guilty of an offence under this sub-section.

(4) When any owner, or master or agent is convicted of an offence under sub-section (3), the convicting magistrate may inquire into and determine the amount payable on account of expenses by such owner, master or agent under that sub-section and may direct that the same shall be recovered from him in the manner provided for the recovery of fines.”

These provisions relate to detention by reason of damage caused in any part of the world by a foreign ship to property belonging to the Government of India or to an Indian citizen or company. The sections are wide in terms and the expression ‘damage’ is not necessarily confined to physical damage. Ordinarily damage is caused by physical contact of the ship, such as in collision. But damage can also be caused to property by breach of contract or acts of commission or omission on the part of the carrier or his agents or servants by reason of the negligent operation and management of the vessel, as, for example, when cargo is damaged by exposure to weather or by negligent stowage; or, by the misconduct of those in charge of the ship, like when cargo is disposed of contrary to the instructions of the owner or by reason of theft and other misdeeds. In all these cases, damage arises by reason of loss caused by what is done by the ship or by the breach, negligence of misdeeds of those in charge of the ship. It must however be noticed that the expression ‘damage done by any ship’ has been construed by the English Courts as not to apply to claims against the carrying ship for damage done to cargo. In the Victoria 1887 12 PD 105, the Court so construed section 7 of the Admiralty Court Act, 1861 (24 Victoriae c. 10)*. It has been held to apply only to physical damage done by a ship by reason of its coming into contact with something. See The Vera Cruz, [1884] 9 PD 96; Currie v. M.Knight, [1897] AC 97 and The Jade, [1976] 1 All. E.R. 920. In view of the specific provisions of the English statutes of 1920, 1925, 1956 and 1981, it was unnecessary for the English Courts to construe the expression broadly so as to include cargo claims and the like. The last two enactments contain an exhaustive list of maritime claims and questions in regard to which the High Court can exercise jurisdiction over any merchant ship by arresting it as it enters the waters of Britain. This power, as already noticed, is available, whatever be the nationality of the ship or its owner or the domicile or place of residence or business of the owner, or wherever the cause of action has arisen. About the words ‘damage done by a ship’ in section 7 of the Admiralty Court Act, 1861 and the decision in The Victoria [1887] 12 PD 105 to the effect that the section had no application to claims against the carrying ship for damage to cargo, the following observation significantly appears in Halsbury’s Laws of England, 4th ed. Vol. I (1), para 319 N. 12.

“…but this question is academic in the light of the fact that jurisdiction in respect of claims for damage to cargo carried in a ship is now expressly given by the Supreme Court Act 1981 s. 20(2)(g).”

In the absence of any statute in India comparable to the English statutes on admiralty jurisdiction, there is no reason why the words ‘damage caused by a ship’ appearing in section 443 of the Merchant Shipping Act, 1958 should be so narrowly construed as to limit them to * Section 7 reads :
“The High Court of Admiralty shall have jurisdiction over any Claim for Damage done by any ship.”

physical damage and exclude any other damage arising by reason of the operation of the vessel in connection with the carriage of goods. The expression is wide enough to include all maritime questions or claims. If goods or other property are lost or damaged, whether by physical contact or otherwise, by reason of unauthorised acts or negligent conduct on the part of the shipowner or his agents or servants, wherever the cause of action has arisen, or wherever the ship is registered, or wherever the owner has his residence or domicile or place of business, such a ship, at the request of the person aggrieved, is liable to be detained when found within Indian jurisdiction by recourse to sections 443 and 444 of the Merchant Shipping Act, 1958 read with the appropriate rules of practice and procedure of the High Court. These procedural provisions are but tools for enforcement of substantive rights which are rooted in general principles of law, apart from statutes, and for the enforcement of which a party aggrieved has right to invoke the inherent jurisdiction of a superior court.

The Indian Carriage of Goods by Sea Act, 1925 applies to carriage of goods by sea under bills of lading or similar documents of title from a port in India to any other port whether in or outside India. (See section 2). The Act imposes certain responsibilities and liabilities and confers certain rights and immunities upon the carrier (see Articles III & IV). In respect of a claim relating to an outward cargo, the cargo owner has a right to bring a suit against a shipowner subject to the period of limitation specified under Act, namely, one year [Article III (6)]. The substantive rights recognised by the statute are of equal application to foreign merchant ships as they are to Indian merchant ships. The Carriage of Goods by Sea Act does not, however, contain any provision for the enforcement of the right by arresting the foreign vessel found in Indian waters. In the absence of arrest, no effective remedy against a foreign owner may be available to the cargo owner. The same is the position with regard to claims relating to cargo carried under a charterparty. It is, therefore, necessary that he should have recourse to the remedy available to him under the Merchant Shipping Act. That Act, as stated earlier, confers a right to arrest a vessel in respect of any damage caused by a ship. If that expression, in the absence of any other more appropriate statute, is understood sufficiently broadly as an enabling provision to effectively assume jurisdiction over a foreign ship for the enforcement of a substantive right recognised by law, there would be no difficulty in finding a remedy for the right the law has conferred on the cargo owner.

The Merchant Shipping Act empowers the concerned High Court to arrest a ship in respect of a substantive right. A right conferred by the Indian Carriage of Goods by Sea Act, 1925 in respect of outward cargo is one of those rights which can be enforced by arrest and detention of the foreign ship in order to found jurisdiction over the vessel and its owners, just as it can be done in respect of inward cargo by reason of the substantive rights conferred by the Admiralty Court Act, 1861 read with the Colonial Courts of Admiralty Act, 1890, and other rules of law. The same principle must hold good for carriage under a charterparty. These and other laws, such as the law of contract, tort, crime, mortgage, marine insurance, customs, port operations, etc., and the Civil and Criminal Procedure Codes as well as the relevant rules of court regulating procedure and practice together constitute the body of substantive and procedural laws governing claims relating to inward and outward cargo, and such claims are enforceable against foreign ships by recourse to arrest and detention when found within jurisdiction. Viewed in this light, and by this reasoning, the Andhra Pradesh High Court, as a successor to the Madras High Court, does not lack admiralty jurisdiction in respect of claims relating to outward cargo.

The admiralty jurisdiction of the High Court is dependent on the presence of the foreign ship in Indian waters and founded on the arrest of that ship. This jurisdiction can be assumed by the concerned High Court, whether or not the defendant resides or carries on business, or the cause of action arose wholly or in part, within the local limits of its jurisdiction. Once a foreign ship is arrested within the local limits of the jurisdiction of the High Court, and the owner of the ship has entered appearance and furnished security to the satisfaction of the High Court for the release of the ship, the proceedings continue as a personal action.

The Merchant Shipping Act, 1958 provides a detailed code of substantive and procedural rules regulating shipping as an industry control exercised over it by the competent authorities in confirmity with various international conventions which have, under the auspices of International Organisations such as the IMO or the ILO, unified and developed various aspects of shipping laws. Conventions regulating sea traffic, safety of life at sea, employment of seamen, wages, hours of work, social security, etc. are cases in point. Likewise, the substantive rules concerning transport of goods are contained in the Indian Bills of Lading Act, 1856 and the Indian Carriage of Goods by Sea Act, 1925. But the jurisdictional questions concerning arrest of foreign ships for enforcement of claims against the shipowner as a transporter of goods, which in England are regulated by the Supreme Court Act 1981, are in many respects left unregulated by Indian legislation. While the provisions of various international conventions concerning arrest of ships, civil and penal jurisdiction in matters of collision, maritime liens and mortgages etc. have been incorporated into the municipal laws of many maritime States, India, as stated above, lags behind them in adopting these unified rules.* By reason of this void, doubts about jurisdiction often arise, as in the present case, when substantive rights, such as those recognised by the Carriage of Goods by Sea Act, are sought to be enforced. The remedy lies, apart from enlightened judicial construction, in prompt legislative action to codify and clarify the admiralty laws of this country. This requires thorough research and investigation by a team of experts in admiralty law, comparative law, and public and private international law. Any attempt to codify without such investigation is bound to be futile.

No Indian statute defines a maritime claim. The Supreme Court Act, 1981 of England has catalogued claims with reference to the unified rules adopted by the Brussels Convention of 1952 on the Arrest of Seagoing Ships.**

* See for example, the Brussels Conventions listed above. See also the Administration of Justice Act, 1956 and the Supreme Court Act, 1981 incorporating the international rules into English law.

** International Convention for the Unification of Certain Rules relating to the Arrest of Seagoing Ships, Brussels, May 10, 1952. Article 1 of this Convention reads:

(1) “Maritime Claim” means a claim arising out of one or more of the following:

(a) damage caused by any ship either in collision or otherwise;(b) loss of life or personal injury caused by any ship or occurring in connection with the operation of any ship;(c) salvage;(d) agreement relating to the use or hire of any ship whether by charterparty or otherwise;(e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise; (f) loss of or damage to goods including baggage carried in any ship; (g) general average; (h) bottomry; (i) towage (j) pilotage; (k) goods or materials wherever supplied to a ship for her operation or maintenance; (l) construction, repair or equipment of any ship or dock charges and dues; (m) wages of Masters, Officers, or crew; (n) Master’s disbursements, including disbursements made by shippers, charterers or agents on behalf of a ship or her owner; (o) disputes as to the title to or ownership of any ship;(p) disputes between co-owners of any ship as to the ownership, possession employment or earnings of that ship; (q) the mortgage or hypothecation of any ship.

Although India has not adopted the various Brussels Conventions*, the provisions of these Conventions are the result of international unification and development of the maritime laws of the world, and can, therefore, be regarded as the international common law or transnational law rooted in and evolved out of the general principles of national laws, which, in the absence of specific statutory provisions, can be adopted and adapted by courts to supplement and complement national statutes on the subject. In the absence of a general maritime code, these principles aid the courts in filling up the lacunae in the Merchant Shipping Act and other enactments concerning shipping. “Procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities.” S.P. Gupta v. Union of India, [1982] 2 SCR, 365, 520, 521.

It is important to remember that the Brussels Convention on Arrest of Ships merely restricts or regulates the power of the coastal States and is not intended to confer power which they did not otherwise have as sovereign States. ‘Arrest’ to which the convention refers is detention of a ship to secure a maritime claim, and not seizure of a ship in execution or satisfaction of judgment.

The judicial power of this country, which is an aspect of national sovereignty is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience.

In the words of Chief Justice Marshal :-

(2) “Arrest” means the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.

(3) “Person” includes individuals, partnerships and bodies corporate, Governments, their Departments, and Public Authorities.

(4) “Claimant” means a person who alleges that a maritime claim exists in his favour.

See the Conventions listed above.

“The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute.

It is susceptible of no limitation not imposed by itself. “.

The Schooner Exchange v. M’Faddon & Ors. U.S. Supreme Court Reports, Cranch 5-9, p. 114, 133 (3 L.ed. 287).

Admiralty jurisdiction is an essential aspect of judicial sovereignty which under the Constitution and the laws is exercised by the High Court as a superior court of record administering justice in relation to persons and things within its jurisdiction. Power to enforce claims against foreign ships is an essential attribute of admiralty jurisdiction and it is assumed over such ships while they are within the jurisdiction of the High Court by arresting and detaining them.

All persons and things within the waters of a State fall within its jurisdiction unless specifically curtailed or regulated by rules of international law. The power to arrest a foreign vessel, while in the waters of a coastal State, in respect of a respect of a maritime claim, wherever arising, is a demonstrable manifestation and an essential attribute of territorial sovereignty. This power is recognised by several international conventions.* These conventions contain the unified rules of law drawn from different legal systems. Although many of these conventions have yet to be ratified by India, they embody principles of law recognised by the generality of maritime States, and can therefore be regarded as part of our common law. The want of ratification of these conventions is apparently not because of any policy disagreement, as is clear from active and fruitful Indian participation in the formulation of rules adopted by the conventions, but perhaps because of other circumstances, such as lack of an adequate and specialised machinery for implementation of the various international conventions by coordinating for the purpose the concerned Departments of the Government. Such a specialised body of legal and technical experts can facilitate adoption of internationally unified rules by national legislation. It is appropriate that sufficient attention is paid to this aspect of the matter by the concerned authorities. Perhaps the Law Commission of India, endowed as it ought to be with sufficient authority, status and independence, as is the position in England, can render valuable help in this regard. Delay in the adoption of international conventions which are intended to facilitate trade hinders the economic growth of the nation.

* See the Conventions referred to above. See also Nagendra Singh, International Maritime Conventions, British Shipping Laws, Vol.4

The British statute assimilating Indian High Courts to the position of the English High Court in respect of admiralty jurisdiction is an enabling legislation and it is but one of the strands of jurisdiction vested in the High Court by virtue of the constitutional provisions. The jurisdiction of the High court is governed by the Constitution and the laws, and the continuance in force of the existing laws in not a fetter but an additional source of power. Access to court for redressal of grievance being an important right of every person, it is essential that the jurisdiction of the courts is construed harmoniously and consistently with its vital function in that respect, so that absence of legislation will not jeopardise that right.

Admiralty jurisdiction, despite the peculiarities of its origin and growth-rooted as it is in history and nurtured by the growing demands of international trade is nevertheless a part of the totality of jurisdiction vested in the High Court as a superior court of record, and it is not a distinct and separate jurisdiction as was once the position in England before the unification of courts. The 1890 and 1891 Acts specifically conferred admiralty jurisdiction on the Indian High Courts by reason of their being courts of unlimited jurisdiction. These Acts did not create any separate or distinct jurisdiction, but merely equated the Indian High Courts to the position of the England High Court (united and consolidated as that Court has been since 1875) for the exercise of admiralty powers within the jurisdiction of the former. The contrary view expressed in some of the decisions of the High Courts referred to earlier is clearly wrong.

Once a foreign ship is arrested in Indian waters by an order of the High Court, in exercise of the admiralty jurisdiction vested in it by statute, or inherent in it as a court of record, in respect of any maritime claim against its owner, wherever the cause of action may have arisen, and whether or not the ship is subsequently released by the owner furnishing security, proceeding must continue against the owner as in any other suit. The arrest of the vessel while in Indian waters by an order of the concerned High Court, as defined under the Merchant Shipping Act, 1958 [section 3(15)] attracts the jurisdiction of the competent court to proceed with the trial, as in the case of any other suit, as an action against the owner, and any decree obtained by the plaintiff is executable against any property of the owner available within jurisdiction, including the security furnished by him for release of the vessel.

All foreign ships entering Indian waters are presumed to know that they fall within the jurisdiction of this country during their stay here. The vessel in question was lying in the Port of Vishakhapatnam when she was arrested in respect of a cause of action relating to cargo. The sole contention of the defendants as regards jurisdiction was that no High Court in India was invested with admiralty jurisdiction to order the arrest of the vessel in respect of a cause of action relating to outward cargo because section
6 of the Admiralty Court Act, 1861 (read with the Colonial Courts of Admiralty Act, 1890) conferring admiralty jurisdiction on Indian High Courts confined it to ‘claims for damage to cargo imported’. This contention for the reasons we have stated, has no merits. The High Court, in our view, rightly assumed jurisdiction by the arrest of the vessel while it was lying in the port of Vishakhapatanam.

The High Court of Andhra Pradesh undoubtedly possesses jurisdiction over claims relating to inward and outward cargo. In the circumstances, the preliminary objection to the jurisdiction of the Andhra Pradesh High Court was totally devoid of merits. Accordingly, the appeal arising from SLP(C) No. 10542 of 1985 has to be dismissed. In the light of our order dated 28th August, 1991 allowing the Civil Appeal No. 3392 of 1991 filed by the 3rd defendant against the order of the High Court dismissing the petition for condonation of delay in presenting O.S.A.S.R. No. 39789 of 1988, the Transferred Case No. 27 of 1987 arising from the judgment of the learned Single judge decreeing the plaintiff’s suit and the 3rd defendant’s appeal have to be heard and disposed of together on the merits, and the right forum for the purpose will be the High Court itself. In the circumstances, the Transferred Case No. 27 of 1987 has to be returned to the High Court. R.M. SAHAI, J. Admirality jurisdiction, an unfamiliar branch of jurisprudence, was the object matter of illuminating debate in this appeal directed against judgment of the Andhra Pradesh High Court. But what was surprising to hear, even, in 1991 was that the admirality jurisdiction exercised by the High Courts in Indian Republic is still governed by the obsolete English Admiralty Courts Act, 1861 (referred hereinafter as ‘the Act’) applied by (English) Colonial Courts of Admiralty Act, 1890 (in brief ‘1890 Act’) and adopted by Colonial Courts of Admirality (India) Act, 1891 (Act XVI of 1891). Yet there appeared no escape from it, notwithstanding its unpleasant echo in ears. The shock was still greater when it transpired that this state of affairs is due to lack of legislative exercise, even, when in wake of decision of this Court in State of Madras v. C.G.Menon & Ors., [1955] 1 S.C.R. 280, that ‘Article 372 of the Constitution cannot save this law (Fugitive Offenders Act 1881*) because the grouping is repugnant, to the concept of a sovereign democratic republic.’, the Law Commission in its Fifth Report on British Statutes applicable to India went into detail on scope of Article 372 of the Constitution and observed that the British statutes which were expressly applicable to India because India was a, ‘British possession’ are still supposed to be applicable to India without any change in the context, therefore, it impressed upon the urgency as far back as 1957 to enact, ’own laws on the subject matter of those statutes where it is necessary to do so and take legislative action making it clear that these statutes are no longer applicable to India.’ In pursuance of this recommendation exercise was undertaken and (The) British Statutes (Applicable to India) Repeal Act 1960 (Act 57 of 1960) was enacted on 26th December 1960 repealing as many as 259 statutes mentioned in the Schedule. But the Admirality jurisdiction remained untouched. In respect of Colonial Courts of Admiralty Act the recommendation of the Commission was that, ‘ The necessary substantive provisions of the English Statute may be incorporated into our Act XVI of 1891 so as to make it the comprehensive Indian law relating to courts of admirality.’ Unfortunately nothing was done. Neither the law was made up-to-date and brought in line with international conventions on maritime law passed in 1952 etc. nor even the salient features of English law as amended by Administration of Justice Act, 1920, and 1956 were adopted. And rights and interests of citizen of the independent sovereign state continued to be governed by legislations enacted for colonies by the British Parliament. Various provisions in 1890 Act have been rendered not only anomalous but even derogatory to the sovereignty of the State. No further need be said except to express the hope that the unfortunate state of affairs shall be brought to end at the earliest.
Be that as it may the intricate issue of Admiralty jurisdiction of the Bracket supplied.

Andhra Pradesh High Court a successor of High Court of Madras, to entertain a suit for arrest of a foreign ship for tort committed by the owner or master of ship while carrying cargo outside India has to be decided on the law as it stands. Entire thrust of attack, against direction by the High Court for arrest of the foreign ship, was found on absence of any provision in 1861 Act empowering the High Court to exercise jurisdiction over any claim by the owner or consignee of India in respect of bill of lading of any goods carried out of any Indian port in any foreign ship. True Sections 5 to 8 and 10 to 11 conferring jurisdiction on High Court of Admiralty do not provide for it. Section 6 is confined to, ‘any claim by the owner or consignee or assignee of any Bill of Lading of any goods carried into any port in England or Wales in any ship (to be read as India by virtue of proviso to sub-section 3 of Section 2 of Colonial Courts of Admiralty Act 1890*) for damage done to the goods or any part thereof by the Negligence or misconduct of or any breach of duty’. But this Act had on application till 1890. Before it the High Court of Madras enjoyed Admiralty jurisdiction under the Madras Supreme Court Act, then Letters Patent of 1862 and 1865. Finally it came to be governed by 1890 Act, enacted, to amend the law respecting to exercise of Admiralty jurisdiction in British possession.’ It was under sub-section (1) of Section 2 of this Act read with Section 2 of 1891 act that the then Presidency High Courts, being courts of unlimited civil jurisdiction, were declared court of Admiralty. Sub-section (2) of Section 2 of 1890 Act spelt out the jurisdiction of Admiralty courts. It reads as under:-

“(2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters, and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations.”
Each part of the sub-section is inclined towards expanding jurisdiction. It not only declared those over which the court could exercise jurisdiction but it also amplified the manner and extent of exercise of jurisdiction. It was made co-extensive with the jurisdiction exercised by the High Court in England. Use of the expression, ‘existing by virtue of any Statute or otherwise’, widened the operative field extending the limit and authority to exercise jurisdiction beyond any existing statute, to custom practice or in any other manner in which it could be exercised. It was recognition of wide jurisdiction exercised by the High Court of England.

* Bracket supplied.

What then was the jurisdiction that the Court of England exercised in 1890 ? The law of Admiralty was developed by English courts both as a matter of commercial expediency and due to equity and justice. Originally it was a part of common law jurisdiction, but the difficulty of territorial limitations, constraints of common law and the necessity to protect the rights and interests of its own citizens resulted in growth of maritime lien a concept distinct from common law of equitable lien as it represents a charge on maritime property of a nature unknown alike to the common law or equity. The Privy Council explained it as ‘a claim or privilege upon a thing to be carried into effect by legal process. * Law was shaped by exercise of discretion to what appeared just and proper in the circumstances of the case. Jurisdiction was assumed for injurious act done on high seas and the scope was extended, ‘not only to British subjects but even to aliens. ** Maritime law has been exercised all over the world by Maritime powers. In England it was part of Municipal law but with rise of Britain as empire the law grew and it is this law, that is, ‘Maritime Law that is administered by the Admiralty Court’***. From the Maritime law sprang the right known as Maritime lien ascribing personality to a ship for purposes of making good loss or damage done by it or its master or owner in tort or contract. In England it grew and developed in course of which its scope was widened from damage done by a ship to claims of salver, wages, Bottomrey, supply of necessaries and even to bills of lading. Its effect was to give the claimant a charge on res from the moment the lien arose which follows the res even if it changed hands. In other words a maritime lien represented a charge on the maritime property. The advantage which accured to the maritime lienee was that he was provided with a security for his claim up to the value of the res. The essence of right was to identify the ship as wrongdoer and compel it by the arrest to make good the loss. Although the historical review in England dates back to the 14th Century but its statutory recognition was much later and ‘maritime law came to jurisprudential maturity in the first half of the 19th Century’.****

* The Bold Buccleugh, (1851) 7 Moo.P.C.267.
** The hailey, L.R.2 PC 193.
*** Halsbury’s Laws of England, IVth Edn., Vol. 1.
**** Maritime Liens by D.R. Thomas.

And the first statutory recognition of such right came in 1840 when the Admiralty Court Act of 1840 was enacted empowering the admiralty court to decide all questions as to the title or ownership of any ship or vessel or the procedure thereof remaining in the territory arising in any cause of possession, salvage, damage, wages or bottomrey. By clause (6) of the Act jurisdiction was extended to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea going vessel or in the nature of towage or for necessaries supplied to any foreign ship or sea-going vessel and the payment thereof whether such ship or vessel may have been within the body of a country or upon the high seas at the time when the services were rendered or damage received or necessary furnished in respect of such claims. But the most important Act was passed in 1861 which expanded power and jurisdiction of courts and held the field till it was replaced by Administration of Justice Act, 1920. The importance of the Act lay in introducing the statutory right to arrest the res on an action in rem. Section 35 of the 1861 Act provided that the jurisdiction by the High Court of Admiralty could be exercised either by proceedings in rem or proceedings in personam. ‘The essence of the rem in procedure is that ‘res’ itself becomes, as one might say, the defendant, and ultimately the ‘res’ the ship may be arrested by legal process and sold by the Court to meet the plaintiff’s claim. The primary object, therefore, of the action in rem is to satisfy the claimant out of the ‘res’*. If the 1840 Act was important for providing statutory basis for various types of claims then 1861 Act was a step forward in expanding the jurisdiction to claims of bill of lading. Section 6 of the Act was construed liberally so as to confer jurisdiction and the expression ‘carried into any port was’ was expanded to mean not only when the goods were actually carried but even if they were to be carried.** Further the section was interpreted as providing additional remedy for breach of contract.*** By the jurisdiction Act of 1873 the court of Admiralty was merged in High Court of justice. Result was that it obtained jurisdiction over all maritime cases. Therefore, what was covered by enactments could be taken cognisance of in the manner provided in the Act but there was no bar in respect of any cause of action which was otherwise cognizable and arose in Admirality. Section 6 of 1861 Act was confined to claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales (to be read as India). But it did not debar any action or any claim by the owner or consignee or assignee of any bill of lading in respect of cargo carried out of the port. Even if there was no provision in 1861 Act, as such, the colonies could not be deprived under 1890 Act from exercising jurisdiction on those matters which were not provided by 1861 Act but could be exercised or were otherwise capable of being exercised by the High Court of England. ‘The theory was that all matters arising outside the jurisdiction of common law i.e. outside the body of a country were inside the jurisdiction of Admiralty’*. ‘That this court had originally cognisance of all transaction civil and criminal, upon the high seas, in which its own subjects were concerned, is no subject of controversy’**. To urge, therefore, that the Admirality court exercising jurisdiction under 1890 Act could not travel beyond 1861 Act would be going against explicit language of the Statute. Even now, the Admiralty jurisdiction of the High Court of Justice in England derived ‘partly from statute and partly from the inherent jurisdiction of Admiralty’***. Observations of Lord Diplock in the Jade**** that Admiralty jurisdiction was statutory only have to be understood in the context they were made. By 1976 the statutory law on Admiralty had become quite comprehensive. Brother Thommen, J., had dealt with it in detail. Therefore those observations are not helpful in deciding the jurisdiction that was exercised by the High Court in England in 1890.

* Maritime Law by Christopher Hill.
** The Ironsides, 167 English Reports 205, The St. Cloud, 167 English Report 269, The Norway, 167 English Report 347.
*** The Ironsides, 167 English Reports 205.

From what has been narrated above it is apparent that law of Admiralty progressed gradually from ordinary courts, to courts of Admiralty and ultimately to High Court commencing in commercial expediency, equity and justice and ending with statutory enactments covering entire field from collision on ships to cargo even. All this was existing when 1890 Act was enacted. But the statutes of 1840 and 1861 were not exhaustive and English courts could take cognizance for various wrongs either in tort or contract. Therefore, when colonial courts were conferred jurisdiction it was not restricted or confined to statutes, as the power was being conferred on High Courts which were, then and even now, not only courts of unlimited civil jurisdiction but higher courts possessed of every jurisdiction which was not expressly or impliedly conferred on other courts. The

* Carter History of English Courts.
** Lord Stowell in ‘The Hercules’ 2 Dod. 371.
*** Halsbury’s Laws of England, IVth Edn. Vol. 1.
**** The Jade 1976 (1) All Eng. Reports 921.

word ‘otherwise’ literally means in a different way. Effect of its use in 1890 Act in law, was to confer not only statutory jurisdiction possessed of by English courts but all that which was being exercised or was capable of being exercised either under custom and practice or for sake of equity and justice. In the Iron Sides (supra) it was observed that Act of 1861 was passed not because the power or jurisdiction prior to it did not exist but no one ventured to exercise it. No such restriction was placed on exercise of power under 1890 Act. Rather the Act permitted exercise of it and that too to its fullest extent. This deliberate expansion of power and jurisdiction after existence of two statutes for nearly thirty years was founded on experience and necessity or arming the courts for every dispute that could arise relating to Admiralty jurisdiction, as the law on Admiralty was a growing law. Its development could not be stiffled by its very nature. It was with this intention that the Parliament used the word, ‘otherwise’ in 1890 Act. No word in a statute has to be construed as surplus-age. Nor it can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. The two legislations of 1840 and 1861 took care of those actions which appeared to be settled till then. But they did not close the door for the growth of law. They were enacted to ‘improve the Admiralty practice’ as the jurisdiction which were conferred by the statutes were already being exercised. Action in personam or rem were not unknown. It was provided statutory base only. Statutes till 1920 in England were not creation of new rights but recognition of what was existing by practice or custom. It can thus be safely inferred that the jurisdiction to entertain a claim for tort or breach of contract by owner or master of ship while carrying cargo outside the port could be exercised or was capable of being exercised in 1890 by the High Court of England if occasion arose. The rationale of extending jurisdiction in Admirality over cargo carried into the port has been existence of a right in owner or consignee arising out of contract or agreement entered between him and the master or owner of the ship. It was the enforcement of the right which was safeguarded by providing a remedy to arrest a ship if the goods were carried into any port. Same rationale applies to redress the owner of bill of lading if the master of the ship in breach of agreement entered into any port committed tort by acting against it in course of outward journey. Such breach would have been actionable and a suit could be filed in the court where agreement was entered. Basis of Maritime Law has been necessity to provide remedy for wrong done on high seas. Inclusion or expansion of jurisdiction was in relation to any cause which could have been cognisable under ordinary law. Bottomrey, salvage, seaman wages or towage are all causes for which action could be brought in court of law but their enforcement was rendered illusory with disappearance of the person beyond territorial waters. To overcome this difficulty this jurisdiction was created making it actionable against person and finally the res itself. What was basic was the existence of cause of action, arising out of tort or contract in relation to the master or owner of the ship. Applying this test the cause of action arose in Indian territory and if the owner of the ship would have remained in this country a suit for breach of contract could have been filed. Therefore the owner of bill of lading was not precluded from approaching the Admiralty court for redress when the foreign ship which was guilty of violations appeared in Indian waters. On this construction the colonial courts could exercise the jurisdiction in respect of cargo going outside the port in exercise of jurisdiction under Act of 1890 not on statutes but as the High Court of England could exercise such power. Emphasis on absence of any instance in which English courts assumed jurisdiction in respect of goods carried out of English port was searching for existence of jurisdiction not in law but on precedent. Test is not whether the jurisdiction was ever exercised by English courts but whether it was capable of being exercised. If it could, then colonial courts were empowered to exercise it. Reliance was placed on Yuri Maru*, a decision because of which the courts in Bombay and Calcutta got stuck, and could not see beyond 1861 Act. Distinction on facts, apart, the court was primarily concerned if the jurisdiction of colonial court expanded or dimunited by change of jurisdiction of High Court of England by different enactments passed from time to time. Incidentally it was also observed that there was conflict for long even in England on advantage of extending the process in rem and if a port of call could be benefited by existence of a power in all and sundry to arrest vessels found within its limits.

This observation cannot be construed as determinative of limited jurisdiction possessed by the courts. No effort was made in the decision to adjudicate upon the impact of the expression or ‘even otherwise’. Rather it turned on impossibility of automatic extension of jurisdiction of colonial court to exercise power under the English law enacted subsequently because of the use of word ‘existing’ in 1890 Act. Without entering into the controversy if 1890 Act was a legislation by reference or by incorporation and their consequences, on which arguments were addressed in extenso, suffice it to say that in absence of any consideration of the expression ‘otherwise’ this Court does not find any difficulty in construing the expression as permissive of jurisdiction. Legislations may create a right or it may recognise one founded on custom or practice. Admiralty statutes in England fell in latter category. In such legislations the background of enactment, the necessity to codify it, the propose sought to be achieved by it all become relevant. Admiralty jurisdiction in England was rooted in remote past. It developed and expanded with rise and growth of Britain and its recognition as a superior maritime power. Law and practice revolved round it. Right to proceed against owner of ship for wrongs done on high seas was accepted and followed. Statutes of 1840 and 1861 provided legislative base only. Viewed in the background of enactment of 1890 it would be too artificial to confine the exercise of power by the High Courts in Admiralty to what was contained in 1861 Act. Even otherwise for deciding the jurisdiction exercised by the High Court in India founded on jurisdiction exercised by the High Court of England it is not necessary to be governed by the decision given by English courts. Law develops by pragmatic approach to problems arising under an Act and not by abdication or surrender, 1890 Act is an unusual piece of legislation expansive in scope, wider in outlook, opening out the wings of jurisdiction rather than closing in. It’s authority and power to exercise jurisdiction was linked with power exercised by the High Court in England, the width of which was not confined to statute but went deep into custom, practice, necessity, and even exigency.

* 1927 Appeal Cases 906.

Law of 1890 apart, can the Indian High Courts after 1950 be denied jurisdiction to arrest a foreign ship to satisfy the claim of owner of a bill of lading for cargo taken outside the county? Without entering into any comparative study of jurisdiction of High Court of England and the High Courts in our country the one basic difference that exists today is that the English courts derive their creation, constitution and jurisdiction from Administration of Justice Act or Supreme Court Act but the High Courts in our country are established under the Constitution. Under it Article 225 preserved the jurisdiction, including inherent jurisdiction, which existed on the date the Constitution came into force and Article 226 enlarged it by making it not only a custodian of fundamental rights of a citizen but as repository of power to reach its arms to do justice. A citizen carrying on business which is a fundamental right cannot be rendered helpless on premise that the jurisdiction of High Courts stood frozen either under statute of England or any custom or practice prevailing there or the High Court of England cannot exercise the jurisdiction. Brother T.K. Thommen, J., while dealing with right of rem and in personam has considered the justification for conferment of such right to a claimant in respect of a merchant ship traveling from port to port. Can it be successfully urged today that such a ship or its master and owner is immune from tort or breach of contract committed by him in respect of cargo taken out of port. A citizen of a colonial state may or may not but a citizen of an independent republic cannot be left high and dry. The construction of law has to be in consonance with sovereignty of a state. The apprehension that assumption of such jurisdiction would be on general attributes of sovereignty is not well founded. This coupled with expansive jurisdiction that the High Courts enjoyed in relation to Admiralty under 1890 Act preserved under Article 225 provided justification for direction to arrest the ship, for the tortious act done by master or owner of the ship in respect of goods carried outside the port even if there was no specific provision like Section 6 of the 1861 Act. Entertaining a claim arising out of breach of contract in relation to cargo taken out of any Indian port pertains to jurisdiction. It must arise out of Statute. But the power to direct arrest of a ship in exercise of the jurisdiction is one relating to competency. The High Court in India being courts of unlimited jurisdiction, repository of all judicial power under the Constitution except what is excluded are competent to issue directions for arrest of foreign ship in exercise of statutory jurisdiction or even otherwise to effectuate the exercise of jurisdiction. Since the jurisdiction to entertain a suit on tort or contract in relation to cargo going out of the country in a ship is found to exist under 1890 Act the High Court of Andhra Pradesh was competent to direct arrest of the foreign ship when it appeared in India waters. The High Court, therefore, rightly negatived the objection to issue direction to arrest the ship.

Necessity to add few words to the opinion of brother Thommen, J., arose without narrating facts or extracting sections as they have been dealt in detail by him, both to impress upon the urgency of enacting up-to-date law on Admiralty and to express agreement only on scope of 1890 Act as well as the extensive jurisdiction enjoyed by High Courts after 1950.

ORDER

For the reasons stated by us in our separate but concurring judgments dated 26.2.1992, we dismiss the appeal arising from SLP(C) No. 10542 of 1985. The Transferred Case No. 27 of 1987 is returned to the Andhra Pradesh High Court to be heard and disposed of on the merits together with the 3rd defendant’s appeal O.S.A.S.R. No. 39789 of 1988.

We make no order as to costs.

G.N. Appeal dismissed.

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IN THE SUPREME COURT OF INDIA
MISS MOHINI JAIN …PETITIONER
Vs.
STATE OF KARNATAKA AND ORS. …RESPONDENT
DATE OF JUDGMENT: 30/07/1992
BENCH: KULDIP SINGH (J) SAHAI, R.M. (J)
CITATION:
1992 AIR 1858 1992 SCR (3) 658
1992 SCC (3) 666 JT 1992 (4) 292
1992 SCALE (2)90

J U D G M E N T

ACT:

Constitution of India, 1950-Articles 41, 45-Right to education-Whether a constitutional right-capitation fee- Whether unconstitutional. Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984-preamble-Object of. Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984-Sections 3, 5(1)-Notification under-M.B.B.S. Course-Admission-Tuition fee-Different rates for the three categories of students-Legality of-Excess Tuition fee other than Rs. 2,000 per annum-Whether Capitation fee-Whether permissible in law-Held, Notification ultra vires.

HELD: 1.01. The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily the education which brings-forth the dignity of a man. The framers of the Constitutions were aware that more than seventy per cent of the people, whom they were giving the Constitution of India, were illitrate. They were also hopeful that within a period of ten years illiteracy would be wiped out from the country. It was with that hope that Articles 41 and 45 were brought in Chapter IV of the constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. [667F] 1.02. Article 41 in Chapter IV of the Constitution recognises an individual’s right “to education”. It says that “the State shall, within the limits of its economic capacity and development, make effective provision for the securing the right….to education….” Although a citizen cannot enforce the directive principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations. [667H] 1.03. Without making “right to education” under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate. [668E] 1.04. The “right to education”, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. [670A] 1.05. Every citizen has a `right to education’ under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions. When the State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institutions – whether state-owned or state-recognised in recognition of their 661 `right’ to education’ under the Constitution. Charging capitation fee in consideration of admission to educational institutions, is a patent denial of a citizen’s right to education under the Constitution. [672C-E] 1.06. Capitation fee is nothing but a price for selling education. The concept of “teaching shops” is contrary to the constitutional scheme and is wholly abhorrent to the Indian culture and heritage. [670C] 1.07. “Right to life” is the compendious expression for all those rights which the Court must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens. [669 F-G] 1.08. Capitation fee makes the availability of education beyond the reach of the poor. The State action in permitting capitation fee to be charged by State-recognised educational institutions is wholly arbitrary and as such violative of Article 14 of the Constitution of India [672G] 1.09 The capitation fee brings to the fore a clear class bias. It enable the rich to take admission whereas the poor has to withdraw due to financial inability. A poor student with better merit cannot get admission because he has no money whereas the rich can purchase the admission.

Such a treatment is patently unreasonably, unfair and unjust. There is, therefore, no escape from the conclusion that charging of capitation fee in consideration of admissions to educational institutions is wholly arbitrary and as such infracts Article 14 of the Constitution. [673 F- G] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, [1981] INSC 12; [1981] 2 SCR 516; Bandhua Mukti Morcha v. Union of India and Ors., [1983] INSC 206; [1984] 2 SCR 67; E.P. Royappa v.

State of Tamil Nadu and Anr., [1973] INSC 214; [1974] 2 SCR 348; Maneka Gandhi v. Union of India, [1978] 2 SCR 621; Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., [1979] INSC 111; [1979] 3 SCR 1014; Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors. etc.[1980] INSC 219; , [1981] 2 SCR 79 and Dr. Pradeep Jain etc. v. Union of India Ors. etc.[1984] INSC 115; , [1984] 3 SCR 942, referred to.

662 D.P. Joshi v. The State of Madhya Bharat and another[1955] INSC 3; , [1955] SCR 1215, distinguished.

Dr. Ambedkar – C.A.D. Vol. VIII P.476; IMA Resolutions of India Medical Conference held at Cuttak on December 28- 30, 1980; Presidential Address of Dr. K.S. Chugh, Chairman, Department of Medicine and Head Department of Nephrology Pastgraduate Institute of Medical Education and Reseach, Chandigarh delivered on 17.1.1992 at the 47th Annual Conference of the Association of Physicians in India, held at Patna, referred to.

2. The Karnataka Educational Institutions (prohibition of Capitation Fee) Act, 1984 has been brought into existence by the Karnataka State Legislature with the object of effectively curbing the evil practice of collecing capitation fee for admitting students into the educational institutions in the State of Karnataka. The preamble to the Act which makes the object clear. [679F] 3.01. The State Government in fulfilling its obligation under the Constitution to provide medical education to the citizens has fixed Rs.2,000 per annum as tuition fee for the students selected on merit for admission to the medical colleges and also against “Government seats” in private medical colleges. Therefore, the tuition fee by a student admitted to the private medical college is only Rs.2,000 per annum. The seats other than the “Government seats” which are to be filled from outside Karnataka the management has been given free hand where the criteria of merit is not applicable and those who can afford to pay Rs.60,000 per annum are considered at the discretion of the management. [680 F-H] 3.02. If the State Government fixes Rs.2,000 per annum as the tuition fee in government colleges and for “Government seats” in private medical colleges then it is the State-responsibility to see that any private college which has been set up with Government permission and is being run with Government recognition is prohibited from charging more than Rs.2,000 from any student who may be resident of any part of India. When the State Government permits a private medical college to be set-up and recognises its curriculum and degrees, then the said college is performing a function which under the Constitution has been assigned to the State Government. [681A] 3.03. Capitation fee in any form cannot be sustained in the eyes of law. The only method of admission to the medical colleges in consonance 663 with fair play and equity is by ways of merit and merit alone. Charging of capitation fee by the private educational institutions as a consideration for admission is wholly illegal and cannot be permitted. [674 B-C] 3.04. Rs.60,000 per annum permitted to be charged from Indian students from outside Karnataka in Para 1(d) of the notification is not tuition fee but in fact a capitation fee and as such cannot be sustained and is liable to be struck down. [681C] 3.05. What is provided is paras 1 (d) and 1(c) of the impugned notification dated June 5, 1989 is capitation fee and not a tuition fee. It has to be held that the notification is beyond the scope of the Act rather goes contrary to Section 3 of the Act and as such has to be set aside. It is not permissible in law for any educational institution to charge capitation fee as a consideration for admission to the said institution. [681E]

ORIGINAL JURISDICTION : Writ petition (Civil) No. 456 of 1991. (Under Article 32 of the Constitution on India). Vijay Pandia and R. Satish for the Petitioner. Santosh Hegde, R. Jagannatha Gouley, M.K. Dua, K.H.Nobin Singh, Manoj Sarup, C.S. Vaidyanathan, K.V. Mohan, Ms.Anita Lalit and M. Veerappa for the Respondents.

The Judgment of the Court was delivered by KULDIP SINGH. J. The Karnataka State Legislature, with the object of eliminating the practice of collecting capitation fee for admitting students into educational institutions, enacted the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 (the Act). The Act which replaces the Karnatatak Ordinance No. 14 of 1983 came into force with effect from July 11, 1983. Purporting to regulate the tuition fee to be charged by the Private Medical Colleges in the State, the Karnataka Government issued a notification dated June 5, 1989 under Section 5(1) of the Act thereby fixing the tuition fee, other fees and deposits to be charged from the students by the Private Medical Colleges in the State. Under the notification the candidates admitted against “Government seats” are to pay Rs.2,000 per year as tuition fee. The Karnataka students (other than those admitted against “Government seats”) are to be charged tuition fee not 664 exceeding Rs.25,000 per annum. The third category is of “Indian students from outside Karnataka”, from whom tuition fee not exceeding Rs.60,000 per annum is permitted to be charged.

Miss Mohini Jain a resident of Meerut was informed by the management of Sri Sriddharatha Medical College, Agalokote, Tumkur in the State of Karnataka that she could be admitted to the MBBS course in the session commencing February/March 1991. According to the management she was asked to deposit Rs.60,000 as the tuition fee for the first year and furnish a bank guarantee in respect of the fee for the remaining years of the MBBS course. The petitioner’s father informed the management that it was beyond his means to pay the exorbitant annual fee of Rs.60,000 and as a consequence she was denied admission to the medical college.

Mohini Jain has alleged that the management demanded a further capitation fee of repees four and a half lakhs but the management has vehemently denied the same.

In this petition under Article 32 of the Constitution of India Miss Mohini Jain has challenged the notification of the Karnataka Government permitting the Private Medical Colleges in the State of Karnataka to charge exorbitant tuition fees from the students other than those admitted to the “Government seats”.

Mr. Santosh Hedge learned counsel appearing for the medical college respondent No. 3 has contended that the students from whom higher tuition fee is charged belong to a different class. According to him those who are admitted to the “Government seats” are meritorious and the remaining non-meritorious. He states that classification of condidates into those who possess merit and those who do not possess merit is a valid classification and as such the college- management is within its right to charge more fee from those who do not possess merit. He further states that the object sought to be achieved by the said classification is to collect money to meet the expenses incurred by the college in providing medical education to the students. Mr. C.S.

Vaidyanathan, learned counsel appearing for the intervener Karnataka Private Medical Colleges Association has argued that the Private Medical Colleges in the State of Karnataka do not receive any financial aid from either the Central or the State Government. According to him the Private Medical Colleges incur about Rs.5 lakhs per student as expenditure for a 5 year MBBS course. 40% of the seats in these 665 colleges are set part as “Government seats” to be filled by the Government. The students selected and admitted against Government seats pay only Rs.2,000 perannum as such the rest of the burden falls on those who are admitted against management quota. He, therefore, contended that the tuition fee is not excessive and as such there is no question of making any profit by the Private Medical Colleges in the State of Karnataka. Mr. Hegde and Mr. Vaidyanathan have vehemently contended that in order to run the medical colleges the managements are justified in charging the capitation fee. According to them, apart from the act, there is no provision under the Constitution or under any other law which forbids the charging of capitation fee. Finaliy they have relied upon the judgment of this Court in D.P. Joshi v. The State of Madhya Bharat, and another [1955] INSC 3; [1955] SCR 1215.

After hearing learned counsel for the parties and also perusing the written arguments submitted by them the following points arise for our consideration in this writ petition:

(1) Is there a `right to education’ guaranteed to the people of India under the Constitution? If so, does the concept of `capitation fee’ infracts the same? (2) Whether the charging of capitation fee in consideration of admissions to educational institutions is arbitrary, unfair, unjust and as such violates the equality clause contained in Article 14 of the Constitution? (3) Whether the impugned notification permits the Private Medical Colleges to charge capitation fee in the guise of regulating fees under the Act? (4) Whether the notification is violative of the provisions of the Act which in specific terms prohibit the charging of capitation fee by any educational institution in the State of Karnataka? In order to appreciate the first point posed by us it is necessary to refer to various provisions of the Constitution of India. The preamble promises to secure to all citizens of India “Justice, social, economic and political” “liberty of thought, expression, belief, faith and worship”. It further provides “equality of status and of opportunity” and assures dignity of the individual. Articles 21, 38, 39(a) (f), 41 and 45 of the Constitution are reproduced hereunder:

666 “21. Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law.” “38. State to secure a social order for the promotion of walfare of the people.-(1) The State shall strive to promote the Welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.” “39. Certain principles of policy to be followed by the state.-The State shall, in particular, direct its policy towards securing- (a) that the citizens, men and women equally, have the right to an adquate means to livelihood;

(f) that children are given opportunities and facilities to develop in a hearlthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.” “41. Right to work, to education and to public assistance in certain cases.- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of underserved want.” “45. Provision for free and compulsory education for children.- The State shall endeavour to provide, within a period to ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.” 667 It is no doubt correct that “right to education”as such has not been guaranteed as fundamental right under Part III of the Constitution but reading the above quoted provisions comulatively it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizens.

The preamble promises to secure justice “social, economic and political” for the citizen. A peculiar feature of the Indian Constitution is that it combines social and economic rights along with political and justiciable legal rights. The preamble embodies the goal which the State has to achieve in order to establish social justice and to make the masses free in the positive sense. The securing of social justice has been specifically enjoined an object of the State under Article 38 of the Constitution. Can the objectice which has been so prominently pronounced in the preamble and Article 38 of the Constitution be achieved without providing education to the large majority of citizens who are illiterate. The objectives flowing from the preamble cannot be achieved and shall remain on paper unless the people in this country are educated. The three pronged justice promised by the preamble is only an illusion to the teaming-million who are illiterate. It is only is the education which equips a citizen to participate in achieving the objectives enshrined in the preamble. The preamble further assures the dignity of the individual. The Constitution seeks to achieve this object by guaranteeing fundamental rights to each individual which he can enforce through court of law if necessary. The directive principles in Part IV of the Constitution are also with the same objective. The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarilty the education which brings-forth the dignity of a man. The framers of the Constitution were aware that more than seventy per cent of the people, to whom they were giving the Constitution of India, were illiterate. They were also hopeful that within a period of ten years illiteracy would be wiped out from the country. It was with that hope that Articles 41 and 45 were brought in Chapter IV of the Constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. This is why the Universal Declaration of Human Rights, 1948 emphasises “Education shall be directed to the full development of the human personality…” Article 41 in Chapter IV of the Constitution recognises an individual’s right “to education”. It says that “the State shall, within the limits of its economic capacity and development, make effective provision for securing the right…..to 668 education”. Although a citizen cannot enforce the directive principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations. We may quote the words of Dr. Ambedkar in that respect:

“In enacting this Part of the Constitution, the Assembly is giving certain directions to the future legislature and the future executive to show in what manner they are to exercise the legislature and the executive power they will have. Surely it is not the intention to introduce in this Part these principles as mere pious declarations. It is the intention of the Assembly that in future both the legislature and the executive should not merely pay lipservice to these principles but that they should be made the basis of all legislative and executive action that they may be taking hereafter in the matter of the governance of the country” (C.A.D. Vol.VII p.476.) The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making “right to education” under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.

This Court has interpreted Article 21 of the Constitution of India to include the right to live with human dignity and all that goes along with it. In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, [1981]2 SCR 516, this Court elaborating the right guaranteed under Article 21 of the Constitution of the India held as under:

“But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expression oneself in diverse forms, freely 669 moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such funtions and activities as constitute the bare minimum expression of the human-self.” In Bandhua Mukti Morcha v. Union of India Ors., [1983] INSC 206; [1984] 2 SCR 67, this Court held as under”- “This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State – neither the Central Government nor any State Government – has the right to take any action which will deprive a person of the enjoyment of these basic essential.” “Right to life” is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education fiows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.

The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity.

670 The “right to education”, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional-mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. increasing demand for medical education has led to the opening of large number of medical colleges by private persons, groups and trusts with the permission and recognition of State Governments. The Karnataka State has permitted the opening of several new medical colleges under various private bodies and organisations. These institutions are charging capitation fee as a consideration for admission. Capitation fee is nothing but a price for selling education. The concept of “teaching shops” is contrary to the constitutional scheme and is wholly abhorrent to the Indian culture and heritage.

As back as December 1980 the Indian Medical Association in its 56th All India Medical Conference held at Cuttack on December 28-30, 1980 passed the following resolutions:

“The 56th All India Medical Conference views with great concern the attitude of State Goverments particularly the State Government of Karnataka in permitting the opening of new Medical Colleges under various bodies and organisations in utter disregard to the recommendations of Medical Council of India and urges upon the authorities and the Government of Karnataka not to permit the opening of any new medical college, by private bodies.

It further condemns the policy of admission on the basis of capitation fees. This commercialisation of medical education endangers the lowering of standards of medical education and encourages bad practice.” Dr. K.S. Chugh, Chairman, Department of Medicine and Head Department of Nephrology Postgraduate Institute of Medical Education and Research Chandigarh, recipient of Dr.

B.C. Rai National Award as `eminent medical man for 1991′, in his Presidential Address delivered on January 17, 1992 at the 4th Annual Conference of the Association of Physicians in India held at Patna observed as under:

“In the recent past, there has been a mushroom growth of 671 medical colleges in our country. At the time of independence we had 25 medicaal college which turned out less than 2000 graduates every year. At the present time, there are 172 )150 already functioning and 22 are being established) medical colleges with an annual turn over of over 20,000 graduates. The Mudaliar Commission had recommended a doctor-population ratio of 1 : 3500. We have already achieved a ratio of 1 : 2500. If we take into account the practitioners of other systems of medicine who enjoy pay scales and privileges comparable to those of allopathic doctors, India will soon have a doctor-population ratio of 1 :

500. Such over production of tehnical man-power from our medical colleges is bound to lead to unemployment and frustration. Indeed the unabated exodus of our professional collegues to other countries is a direct consequence of these lop- sided policies.

According to some estimates. India has exported human capital worth over 51 billion dollars to USA alone during 1966-88. Currently about 8000 skilled young men and women are leaving the country every year. It is high time a blanket ban is imposed on any further expansion of medical colleges in our country and a well thought out plan to reduce the intake into existing institutions is prepared. This will help to improve the standard of medical education and health care in our country.

It is common knowlege that many of the newly started medical colleges charge huge capitation fees. Besides, most of these are poorly equipped and provide scanty facilities for training of students. At best such institutions can be termed as “Teaching Shops”. Experience has shown that these colleges admit students who have been unable to gain admission in recognised medical colleges.

The result is a back door entry into medical training obtained solely by the ability to pay one’s way through. Even the advice of the Medical Council of India is sidelined in many such cases.

The Government must resist all pressures to allow this practice to continue. Admission to medical colleges bought by paying capitation fees must be stepped forthwith and all such existing institutions required to strictly adhere to the Medical Council of India rules.

672 In the words of my predecessor Dr. V. Parameshvara, “The need of the hour is better doctors than more doctors, better health education than more education, better health care than more health care delivery.” The indian Medical Association, the Association of Physicians of India and various other bodies and organisations representing the medical profession in this country have unanimously condemned the practice of charging capitation fee as a consideration for admission to the medical college.

We hold that every citizen has a `right to education’ under the Constitution. The State is under an obligation to established educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions. When the State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are givin admission to the educational institutions-whether state-owned or state- recongnised-in recognition of their `right to education’ under the Constitution. Charging capitation fee in consideration of admission to educational institutions, is a patent denial of a citizen’s right to education under the Constitution.

Indian civilsation recognises education as one of the pious obligations of the human society. To establish and administer educational institutions is considered a religious and charitable object. Education in India has never been a commodity for sale. Looking at the economic- front, even forty five years after achieving independence, thirty per cent of the population is living below proverty- line and the bulk of the remaining population is struggling for existence under poverty-conditions. The preamble promises and the directive principles are a mandate to the state to eradicate poverty so that the poor of this country can enjoy the right to life guaranteed under the Constitution. The state action or inaction which defeats the constitutional-mandate is per se arbitary and cannot be sustained. Capitation fee makes the availability of education beyond the reach of the poor. The state action in permitting capitation fee to be charged by state-recognised educational institutions is wholly arbitrary and as such violative of Article 14 of the Constitution of India. During the last two decades the horizon of equality clause has been widened as a result of this Court’s judgments.

673 Earlier the violation of Article 14 was judged on the twin t ests of classification and nexus. This Court in E.P. Royappa v. State of Tamil Nadu and Anr., [1973] INSC 214; [1974] 2 SCR 348 gave new dimension to Article 14 in the following words:

“Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.

Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.” This Court in Maneka Gandhi v. Union of India [1978] 2 SCR 621 Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., [1979] INSC 111; [1979] 3 SCr 1014 and Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors. etc.[1980] INSC 219; , [1981] 2 SCR 79 following E.P. Royappa authoritatiovely held that equality is directly opposed to arbitrariness. In Ajay Hasis this Court observed as under :

“Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification… In Royappa v. State of Tamil Nadu this Court laid bare a new dimension of Article 14 and pointed out that that Article has highly activist magnitude and it embodies a guarantee against arbitrariness…..” The capitation fee brings to the fore a clear class bias. It enable the rich to take admission whereas the poor has to withdraw dur to financial inability. A poor student with better merit canoot get admission because he has no money whereas the rich can purchase the admission. Such a treatment is patently unreasonable, unfair and unjust. There is, therefore, no escape from the conclusion that charging of capitation fee in consideration of admissions to educational institutions is wholly arbitrary and as such infracts Article 14 of the Constitution.

We do not agree with Mr. Hegde that the management has a right to admit non-meritorious candidates by charging capitation fee as a con- 674 sideration. This practice strikes at the very root of the constitutional scheme and our educational system.

Restricting admission to non-meritorious candidates belonging to the richer section of society and denying the same to poor meritorious is wholly arbitrary against the constitutional scheme and as such cannot be legally permitted. Capitation fee in any form cannot be sustained in the eyes of law. The only method of admission to the medical colleges in consonance with the fair play and equity is by ways of merit and merit alone.

We, therefore, hold and declare that charging of capitation fee by the private educational institutions as a consideration for admission is wholly illegal and cannot be permitted.

Mr. Santosh Hegde and Mr.Vaidyanathan learned counsel for respondent 3 and the interverner have relied upon D.P.

Joshi v. The State of Madhya Bharat and Anr., (supra) for the proposition that classification of candidates for admission to medical colleges on the basis of residence is permissible. In D.P. Joshi’s case a resident of Delhi was admitted as a student of Mahatma Gandhi Memorial Medial Cellege Indore which was run by the State of Madhya Bharat.

His complaint was that the rules in force in the said institution discriminated in the matter of fees between students who were residents of Madhya Bharat and those who were not, and that the latter had to pay in addition to the tuition fee and charges payable by all the students a sum of Rs.1500 per annum as capitation fee and that the charging of such a fee from the students coming out of Madhya Bharat was in contravention of Articles 14 and 15(1) of the Constitution of India. In D.P. Joshi’s case the only point for decision before this Court was whether the classification on the ground of residence was justified.

This court while dealing with the question observed as under:

“The impugned rule divides, as already stated, self-nominees into two groups, those who are bona fide resident of Madhya Bharat and those who are not, and while it imposes a capitation fee on the latter, it exempts the former from the payment thereof. If thus proceeds on a classification based on residence within the State, and the only point for decision is whether the ground of classification has a fair and substantial relation to the purpose of the law, or whether it is purely arbitrary and 675 fanmciful.

The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its borders. Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective provisions for education within the limits of its economy. (vide article 41). The State has to contribute for the upkeep and the running of its educational institutions. We are in this petition concerned with a Medical College, and it is well-known that it requires considerable finance to maintain such an institution. If the State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least enure for the benefit of the State? A concession given to the residents of the State in the matter of fees is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in the State of Punjab v.

Ajaib Singh and Anr., that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of article 14 must be rejected.” D.P. Joshi’s case is an authority for the proposition that classification on the ground of residence is a justifiable classification under Articles 14 and 15(1) of the Constitution of India. The question that capitation fee as a consideration for admission is not permissible under the scheme of the constitution, was neither raised nor adverted to by this Court. The imposition of capitation fee was also not questioned on the ground of arbitrariness. The only question raised before the Court was that the Madhya 676 Bharat students could not be exempted from the payment of capitation fee. It is settled by this Court that classification on the ground of residence is a valid classification. Subsequently this Court in Dr. Pradeep Jain etc. v. Union of India and Ors. etc.[1984] INSC 115; , [1984] 3 SCR 942 reiterated the legal position on this point. we are, therefore, of the view that D.P. Joshi’s case does not give us ary guidance on the points before us.

To appreciate the third point it is necessary to notice the relevant provisions of the Act and the notification.

Section 2(b), (e), 3, 4, and 5 of the Act are as under:

“2(b). “Capitation fee” means any amount, by whatever name called, paid or collected directly or indirectly in excess of the fee prescribed under section 5, but does not include the deposit specified under the proviso to section 3.

(e) “Government Seats” means such number of seats in such educational institution or class or classes of such institutions in the state as the Government may, from time to time, specify for being filled up by it in such manner as may be specified by it by general or special order on the basis of merit and reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and such other categories, as may be specified, by the Government from time to time, without the requirement of payment of capitation fee or cash deposit.

3. Collection of capitation fee prohibited. – Notwithstanding anything contained in any law for the time being in force, no capitation fee shall be collected by or on behalf of any educational institution or by any person who is incharge of or is reponsible for the management of such institution:

Provided…………..

4. Regulation of Admission to educational institutions etc. – Subject to such rules, or general or special orders, as may be made by the Government in this behalf and any other law for the time being in force.

(1) (a) the minimum qualification for admission to any course of study in an educational institution shall be such as 677 may be specified by – (i) the University, in the case of any course study in an educational institution maintained by or affiliated to such University:

Provided that the Government may, in the interest of excellence of education, fix any higher minimum qualification for any course of study.

(ii) the Government in the case of other courses of study in any other educational institution;

(b) the maximum under of students that could be admitted to a course of study in an educational institution shall be such as may be fixed by the Government from time to time;

(2)in order to regulate the capitation fee charged or collected during the period specified under the proviso to section 3, the Government may, from time to time, by general or special order, specify in respect of each private educational institution or class or classes of such institutions.

(a) the number of seats set apart as Government seats:

(b) the number of seats that may be filled up by the management of such institution.

(i) from among Karnataka students on the basis of merit, on payment of such cash deposits refundable after such number of years, with or without interest as may be specified therein, but without the payment of capitation fee; or (ii) at the discretion:

Provided that such number of seats as may be specified by the Government but not less tha fifty per cent of the total number of seats referred to in clauses (a) and (b) shall be filled from among Karnataka students.

Explanation. – For the purpose of this section Karnataka students means persons who have studied in such educational institutions in the State of Karnataka run or recognised by the 678 Government and for such number of years as the Government may specify;

(3) an educational institution required to fill seats in accordance with item (i) of sub-clause (b) of clause (2) shall form a committee to select candidates for such seats. A nominee each of the Government and the University to which such educational institution is affiliated shall be included as members in such committee.

5. Regulation of fees, etc. – (1) It shall be competent for the Government, by notification, to regulate the tuition fee or any other fee or deposit or other amount that may be received or collected by any educational institution or class of such institutions in respect of any or all class or classes of students.

(2) No educational institution shall collect any fees or amount or accept deposits in excess of the amounts notified under sub-section (1) or permitted under the proviso to section 3.

(3) Every educational institution shall issue an official receipt for the fee or capitation fee or deposits or other amount collected by it.

(4) All monies received by any educational institution by way of fee or capitation fee or deposits or other amount shall be deposited in the account of the institution, in any Scheduled Bank and shall be applied and expended for the improvement of the institution and the development of the educational facilities and for such other related purpose and to such extent and in such manner as may be specified by order by the Government.

(5) In order to carry out the purposes of sub- section (4), the Government may require any educational institution to submit their programs or plans of improvement and development of the institution for the approval of the Government.

The relevant part of the notification dated June 5, 1989 issued by the Karnataka Government under Section 5 of the Act is reproduced hereunder:

679 “In exercise of the powers conferred by sub-section (1) of Section 5 of the Karnataka educational Institutions (Prohibition of Capitation Fee) Act, 1984, the Government of Karnataka hereby fix the Tuition Fee and other fees and deposits that may be collected by the private Medical Colleges in the State with effect from the academic year 1989-90 and until further orders as follows:

(a) Candidates admitted to seats in Government Medical Colleges shall be charged a tuition fee of Rs.2,000 each per annum (Rupees two thousand only);

(b) Candidates admitted against Government seats in Private Medical Colleges shall be charged a tuition fee of Rs.2,000 each per annum (Rupees two thousand only).

For this purpose “Government seats” shall mean Government seats as defined by section 2 (e) of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984;

(c) Karnataka Students (other than students admitted against Government seats as at (b) above) admitted by Private Medical Colleges shall be charged tuition fee not exceeding Rs.25,000 each per annum (Rupees Twenty-five thousand only);

(d) Indian Students from outside Karnataka admitted by Private Medical Colleges shall be charged tuition fee not exceeding Rs. 60,000 each per annum (Rupees Sixty thousand only);

The Act has been brought into existence by the Karnataka State Legislature with the object of effectively curbing the evil practice of collecting capitation fee for admitting students into the educational institutions in the State of Karnataka. The preamble to the Act which makes the object clear is reproduced thereunder “An Act to prohibit the collection of capitation fee for admission to educational institutions in the State of Karnataka and matters relating thereto;

Where the practice of collecting capitation fee for admit- 680 ting students into educational institutions is widespread in the State;

And whereas this undesirable practice beside contributing to large scale commercialisation of education has not been conducive to the maintenance of educational standards;

And whereas it is considered necessary to effectively curb this evil practice in public interest by providing for prohibition of collection of capitation fee and matters relating thereto;

Be it enacted by the Karnataka State Legislature in the Thirty-fourth Year of the Republic of India as follows:” Section 3 of the Act prohibits the collection of capitation fee by any educational institution or by any person who is in charge of or is responsible for the management of such institutions. Contravention of the provisions of the Act has been made punishable under Section 7 of the Act with imprisonment for a term which shall not be less than three years but shall not exceed seven years and with fine which may extend to five thousand rupees. Section 5 of the Act authorises the Government to regulate the tuition fees by way of a notification. The Karnataka Government have issued a notification under Section 5(1) of the Act wherein the fee charged from Indian students from outside Karnataka has been fixed not exceeding Rs. 60,000 per annum. Whether Rs. 60,000 per annum can be considered a tuition fee or it is a capitation fee is the question for our determination.

The notification fixes Rs.2000 per annum as the tuition fee for candidates admitted to the seats in Government medical colleges and for the candidates admitted against “Government seats” in private medical colleges. All these seats are filled purely on the merit of the candidates. It is thus obvious that the State Government in fulfilling its obligation under the Constitution to provide medical education to the citizens has fixed Rs. 2000 per annum as tuition fee for the students selected on merit for admission to the medical colleges and also against “Government seats” in private medical colleges. Therefore, the tuition fee by student admitted to the private medical college is only Rs.2000 per annum. The seats other than the “Government seats” which are to be filled from outside Karnataka the management has been given free hand where the criteria of merit is not applicable and those who can afford to pay Rs. 60,000 per annum are 681 considered at the discretion of the management. Whatever name one may give to this type of extraction of money in the name of medical education it is nothing but the capitation fee. If the State Government fixes Rs.2000 per annum as the tuition fee in government colleges and for “Government seats” in private medical colleges than it is the state- responsibility to see that any private college which has been set up with Government permission and is being run with Government recognition is prohibited from charging more than Rs. 2000 from any student who may be resident of any part of India. When the State Government permits a private medical college to be set-up and recognises its curriculum and degrees than the said college is performing a function which under the constitution has been assigned to the State Government. We are therefore of the view that Rs.60,000 per annum permitted to be charged from Indian students from outside Karnataka in Para. 1(d) of the notification is not tuition fee but in fact a capitation fee and as such cannot be sustained and is liable to be struck down. Whatever we have said about para 1(d) is also applicable to Para 1(c) of the notification.

Since we have held that what is provided in para 1(d) and 1(c) of the impugned notification dated June 5, 1989 is capitation fee and not a tuition fee it has to be held that the notification is beyond the scope of the Act rather goes contrary to section 3 of the Act and as such has to be set aside. We therefore hold and declare that it is not permissible in law for any educational institution to charge capitation fee as a consideration for admission to the said institution.

For the reasons given above we allow this writ petition and quashed para 1(d) and 1(c) of the Karnataka State Government notification dated June 5, 1989. As a consequence paragraph 5 of the said notification automatically becomes redundant. We make it clear that nothing contained in this judgment shall be applicable to the case of foreign students and students who are non- resident Indians. We further hold that this judgment shall be operative prospectively. All those students who have already been admitted to the private medical colleges in the State of Karnataka in terms of the Karnataka State Notification dated June 5, 1989 shall not be entitled to the advantage of this judgment and they shall continue their studies on the same terms and conditions on which they were admitted to the consolidated MBBS course.

682 Although we have struck down the capitation fee and allowed the writ petition to that extent, we are not inclined to grant any relief regarding admission to the petitioner. She was not admitted to the college on merit and secondly the course commenced in March-April, 1991 and we see no justification to direct respondent 3 the medical college to admit the petitioner. The writ petition is allowed in the above terms with no order as to costs.

V.P.R. Petition allowed.

The post Miss Mohini Jain vs State of Karnataka And Ors appeared first on B&B Associates LLP.

DATE OF JUDGMENT12/08/1992

BENCH: JEEVAN REDDY, B.P. (J) AHMADI, A.M. (J) KULDIP SINGH (J)

CITATION: 1992 AIR 2130 1992 SCR (3) 826 1992 SCC (4) 118 JT 1992 (5) 179 1992 SCALE (2)384

ACT: Civil Services : Constitution of India, 1950:

Articles 14, 16, 32, 136, 226 and 309- Regularisation/absorption of ad-hoc and temporary employees of State Governments and work-charged employees, daily wage workers and casual labour-Directions of High CourtJustification of-Orders of State Government prescribing eligibility criteria for regularisation-Whether arbitrary, unreasonable and discriminatory-Interference by Court in service matters-when warranted-Guidelines for regularisation issued.

HELD : 1.1. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/Instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. [847 F-H] 1.2. The State must be a model employer. It is for this reason it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution and that a person should not be kept in a temporary or ad hoc status for long. [848A]

1.3. Where a temporary or ad hoc appointment is continued for long, the court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the court may act to ensure fairness cannot be detailed, it is sufficient to indicate that the guiding principles are the ones indicated above. [848B]

Dharwad Distt. P.W.D. Literature Daily Wage Employees’ Association v. State of Karnataka and Ors., [1990] 2 S.C.C. 396 and Jacob v. Kerala Water Authority, [1990] Suppl. 1 S.C.R. 562, referred to.

2.1. The court must, while giving directions, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. [852A,B]

2.2. In the instant case apart from the fact that the High Court was not right in holding that the several conditions imposed by the two Governments in their respective orders relating to regularisation were arbitrary, not valid and justified, it acted rather hastily in directing wholesome regularisation of all such persons who have put in one year’s service, and that too unconditionally. Several problems will arise if such directions become the norm. Therefore, there is need for fulled consideration and due circumspection while giving such directions. [852C]

3.1. The Government orders in question were issued by the Government from time to time. These orders are not in the nature of a statute which is applicable to all existing and future situations. They were issued to meet a given situation facing the Government at a given point of time. In the circumstances, therefore, there was nothing wrong in prescribing a particular date by which the specified period of service (whether it is one year or two years) ought to have been put in. [853G]

3.2. The first order dated 1st January, 1980 issued by one of the States says, a person must have completed two years of service as on 31st December, 1979, i.e., the day previous to the issuance of the order. It cannot be said that fixing of such a date is arbitrary and unreasonable. Similarly, the order dated 3rd January, 1983 fixes 15th September, 1982 as the relevant date. This notification/order does two things. Firstly, it excludes Class III posts of clerks from the purview of the S.S.S.B. in case of those who have completed a minimum of two years of service as on 15th September, 1982, and secondly, it provides for their regularisation subject to certain conditions. No particular attack was made as to this date in the High Court. Consequently, the Government had no opportunity of explaining as to why this particular date was fixed. Without giving such an opportunity it cannot be held that the fixation of the said date is arbitrary. What is more relevant is that the High Court has not held that this particular date is arbitrary. According to it, fixation of any date whatsoever was arbitrary, because, in its opinion, the order must say that any and every person who completes the prescribed period of service must be regularised on completion of such period of service. The next order dated 24th March, 1987 prescribes the date as 31.12.1986. i.e., the end of the previous year. In the circumstances, there is no basis for holding that fixation of the date can be held to be arbitrary in the facts and circumstances of the case. [854A-D]

Dr. Sushma Sharma v. State of Rajasthan, [1985] S.C. 1367 and Inder Pal Yadav & Ors. etc. v. Union of India & Ors. etc., [1985] 3 S.C.R. 837, referred to.

3.3. The Government orders say that all those who had been sponsored by Employment Exchange or had been appointed after issuing a public advertisement alone be regularised. There is no unreasonableness or invalidity in the same. It is a reasonable and wholesome provision and a requirement designed to curb and discourage back door entry and irregular appointments and ought not to have been invalidated. Moreover, these are not cases where the writ petitioners were appointed only after obtaining a nonavailability certificate from the Employment Exchange. [855E-F]

Union of India v. Hargopal, 1987 S.C. 1227, referred to.
3.4. The further requirement prescribed in the orders, viz., that the employees must have possessed the prescribed qualifications for the post at the time of his appointment on ad hoc basis is equally a valid condition. [855G-H]

3.5. The High Court was not justified in holding that inasmuch as the two States were sister States and because prior to 1966 one State was a part of the other State, the rule relating to length of service requisite for regularisation should be uniform in both the States. They are two different States having their own Governments; merely because one Government chooses to say that one year’s temporary ad hoc service is enough for regularisation it cannot be said that the other State must also prescribe the very same period or that it cannot prescribe a longer or shorter period. The fact that there is a single High Court for both the States and the Union Territory of Chandigarh is no ground for saying that the orders issued by them should be uniform. [856A-C]

3.6. It is not necessary to alter or modify the directions of the High Court, in so far as one of the States was concerned, that Class III and IV posts which were within the purview of the S.S.S.B. should equally be within the purview of regularisation orders issued by it. If any of the petitioners have been excluded from consideration (for regularisation) on the basis that most of the Class III and IV posts were kept out of the purview of the S.S.S.B. they may be considered and appropriate orders passed. [856D-E]

3.7. The High Court was also not justified in giving the direction that all those ad hoc/temporary employees who had continued for more than one year should be regularised. The direction has been given without reference to the existence of a vacancy. It, in effect, means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him – which means creation of a vacancy (b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back-door (c) he was not eligible and/or qualified for the post at the time of his appointment and (d) his record of service since his appointment is not satisfactory. Moreover, from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further, there can be no ‘rule of thumb’ in such matters. Conditions and circumstances of one unit may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year’s service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. Judged from this stand point, the directions under challenge must be held to be totally untenable and unsustainable. [856F-H; 857A-C]

3.8. So far as the members of the work-charged establishment are concerned, though the work-charged employees are denied certain benefits, they are industrial workers and are entitled to the benefits of the provisions contained in the Industrial Disputes Act. Their rights flow from that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a better position than temporary servants like the other petitioners who are liable to be thrown out of employment without any kind of compensatory benefits. [857D, 858A-B]

Jaswant Singh v. Union of India, [1980] 1 S.C.R. 426, referred to.

3.9. In view of the orders issued on 24th March, 1987 and 6th April, 1990 by one of the States, the direction given by the High Court becomes unnecessary. Though no orders have been issued in this regard by the other States, a scheme of regularisation of these employees is stated to have been prepared by that State in pursuance of the judgment under challenge. The said scheme is, however, not made conditional upon the result of these appeals against the judgment. The scheme is a reasonably fair one. It is hoped and trusted that irrespective of the result of these appeals, the said scheme would be given effect to by the other State concerned.[858C-D]

3.10. The High Court has directed that all those employees who fell within the definition of ‘workmen’ contained in the Industrial Disputes Act would also be entitled to regularisation on par with the work-charged employees and that they should be regularised on completing five years of service in one State and four years of service in the other State. This direction is given in favour of those casual labour and daily wagers who fall within the definition of workmen. Insofar as work-charged employees, daily-wage workers and casual labourers who did not fall within the definition of work-men are concerned, the High Court has directed their regularisation on completion of one year’s service. This direction is as untenable as in the case of ad hoc/temporary employees. The direction regarding persons belonging to the above categories and who fall within the definition of workmen, the terms in which the direction has been given cannot be sustained. While it is true that persons belonging to these categories continuing over a number of years have a right to claim regularisation and the authorities are under an obligation to consider their case for regularisation in a fair manner, keeping in view the prin- ciples enunciated by this Court, the blanket direction given cannot be sustained. However, in view of the orders of one of the State Governments contained in the letter dated 6.4.1990 which provided for regularisation of these persons on completion of ten years, no further directions are called for at this stage. The other State Government, of course, has not issued any such orders governing these categories. Accordingly, the State Government concerned should verify the vacancy position in the categories of daily-wagers and casual labour and frame a scheme of absorption in a fair and just manner providing for regularisation of these persons, having regard to their length of service and other relevant conditions. As many persons as possible shall be absorbed. The scheme should be framed within six months. [858F-H; 859 A-C]

4. Further orders had been issued by one of the State Governments, after the filing of the writ petitions and during the pendency of the Special Leave Petitions in this Court for regularisation of ad hoc/work-charged employees. The other State Government has agreed by an affidavit before this Court, to adopt the same mutatis mutandis so far as Class III employees are concerned. It is hoped that many of the employees would get regularised under the orders aforementioned issued by both the Governments. [859D, 865F, 867E]

5.1. The instant case is not a case where the Governments have failed to take any steps for regularisation of their ad hoc employees working over the years. Every few years they have been issuing orders providing for regularisation. In such a case, there is no occasion for the court to issue any directions for regularising such employees more particularly when none of the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory. The court cannot obviously help those who cannot get regularised under these orders for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part of jurisdiction of this Court. In case of such persons it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in case where persons have been continuing over a long number of years, and were eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory. [867 F-H]

5.2. The normal rule, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. An unqualified person ought to be appointed only when qualified persons are not available through the above processes. If for any reason an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provide he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. [868D-H; 869A-C]

5.3. The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with the observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be. [869D]

5.4. So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualification, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell – say two or three years – a presumption may arise that there is regular need for his services. In such a situation it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. Security of tenure is necessary for an employee to give his best to the job. In this behalf, this Court commends the orders of one of the State Governments, contained in its letter dated 6.4.1990 both in relation to work-charged employees as well as casual labour. [869 E-G]

5.5. The orders issued by both the Governments providing for regularisation of ad hoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one. [869H]

5.6. These observations are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein. [870 A-B]

6.1. So far as the employees and workmen employed by Statutory/Public Corporations are concerned, they have not issued any orders akin to those issued by the two State Governments. Even so, it is but appropriate that they adopt as far as possible, keeping the exigencies and requirements of their administration in view, the criteria and principles underlying the orders issued by their Government in the matter of regularisation and pass appropriate orders. The orders contained in the letter dated 6.4.1990, as supplemented by the orders in the Notification dated 28.2.1991 issued by one of the States should be followed by the Statutory/Public Corporations located in that State, whereas the Statutory/Public Corporations located in the other State should follow the criteria and principles stated in the affidavit of the Government of that State filed before this Court. [870 C-D]

6.2. These directions would not, however, apply to these Statutory/Public Corporations, functioning within these States as are under the control of the Government of India. These Corporations would evolve an appropriate policy of regularisation in the light of this judgment, if they have not already evolved one, or make their existing policy consistent with the judgment to avoid litigation. [870E]

7. As regards, equal pay for equal work, the judgment is singularly devoid of discussion. The direction given by the High Court is totally vague. It does not make it clear who will get what pay and on what basis. Hence, this direction is set aside.

Delhi Development Horticulture Employees’ Union v. Delhi Administration, (1992) 1 J.T. 394, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2979 of 1992 etc.etc. From the Judgment and order dated 26.9.1988 of the Punjab and Haryana High Court in C.W.P. No. 72 of 1988. H.L. Sibal, D.S. Tewatia, D.S. Mehra, M.S. Gujral, M.K. Ramamurthy, Hardev Singh, K.T.S. Tulsi, S.K. Bagga, S.P. Goyal, J.K. Sibal, H.S. Mattewal, Adv. Genl. Punjab, Mrs. Jai Shree Ananda, D.A.G., Punjab, Rajesh, S.K. Mehta, Dhruv Mehta, Aman Vachher, H.S. Munjral, G.K. Bansal, H.S. Sohal, P.P. Singh. Ms. Mridula Ray, Kartar Singh, H.M. Singh, S.C. Paul, R.K. Agnihotri, G.K. Chatrath, P.L. Syngal, N.A. Siddiqui, R.K. Kapoor, Syed Ali Ahmed, K.C. Bajaj, Ms. Rupinder Sodhi Daulat, M.R. Bidsar, K.K. Gupta, Syed Tanweer Ahmed, Mohan Pandey, Jitender Sharma, Naresh Kaushik, Mrs. Lalitha Kaushik, Shankar Divate, S.S. Khanduja, Yash Pal Dhingra, Baldev Krishan Satija, Kirpal Singh, R.D. Upadhyay, S.N. Bhardwaj, J.D. Jain, S. Bala Krishnan, Ms. Madhu Mool Chandani, R.S. Sodhi, Prem Malhotra, Mrs. J.S. Wad, S.D. Sharma, B.S. Gupta, Ms. Geetanjali Mohan, A.K. Mahajan, S.K. Gambhir, T.N. Singh, B.M. Sharma, N.K. Aggarwal, S.M. Ashri, A.K. Goel, N.N. Sharma, M.K. Dua, E.C. Agarwala, Ms. Kamini Jaiswal, C.V. Subba Rao, K.R. Nagaraja, Manoj Swarup, P.K. Chakraborty, P.N. Puri, Ashok Grover, P. Gaur, Mrs. Chandan Ramamurthi, M.A. Krishnamoorthy, B.S. Malik, Pankaj Kalra, A.M. Khanwilkar, Dr. Meera Aggarwal, R.C. Misra, Gian Singh, S.C. Patel, M/s Mitter & Mitter & Co., M/s Agarwal Mishra & Co. Mahabir Singh, R.C. Kaushik, K.K. Mohan, Mrs. Naresh Bakshi, R.S. Suri, Sudershan Goel, R.K. Chopra, Ravinder Chopra, Mrs. Sureshtha Bagga, Sanjay Bansal, Ms. Kanwaljit Kochhar, Ms. Indu Malhotra, R.C. Gubrele, Ms. Renu George, R.P. Sharma, D.K. Garg, Vishnu Mathur, Ms. Madhu Tewatia, Ms. Kamakshi S. Mehlwal, Indeevar Goodwill, Ranbir Singh, Ms. Savita Prabhakar, Ujjal Singh, Ms. Kusum Choudhary, J.L. Puri, T.S. Arora for the appearing parties. Ramesh Chand and Kuldeep Singh appeared in person.

The Judgment of the Court was delivered by B.P. JEEVAN REDDY,J. 1. This batch of Special Leave Petitions are directed against the judgment of a Division Bench of Punjab and Haryana High Court in a batch of writ petitions, the first among them being Writ Petition (C) No. 72 of 1988 (Piara Singh and Anr. v. State of Haryana and Ors.). A large number of writ petitions arising both the States of Punjab and Haryana were heard together and a common judgment delivered giving certain directions in the matter of regularisation of the adhoc/temporary employees, members of work charged establishments, daily-wagers, casual labour and those engaged temporarily in temporary schemes. We have heard all the counsel appearing in this batch at quite some length.

Leave granted in all the Special Leave Petitions.

2. Over the last several years a large number of appointments were made to Class III and IV services in the States of Punjab and Haryana on ad hoc basis i.e., without reference to Public Service Commission or the Subordinate Services Selection Board and without adhering to employment exchange requirements. They were initially appointed for a period of six months or so but were continued for years together under orders passed from time to time. (In so far as the State of Haryana is concerned, most of the class III posts in the Education Department were kept out of the purview of the S.S.S.B. during the period 1970 to 1987. For a period of 10 years, it is stated, there was no Board in existence in the State. Only in March 1987, almost all the posts in Education Department and other Departments were brought within the purview of the S.S.S.B.). As a result of the above policy, a large number of ad hoc employees came into existence in both the States, who were continuing over several years without being regularised and were agitating for their regularisation. To meet the situation, both the Governments issued orders from time to time for regularisation of such employees subject to certain conditions. The orders issued by the Government of Punjab are the following:

1. 3.3.1969 Regularisation of ad hoc employees completing one year service on 28.2.1969.

2. 29.1.1973 Regularisation of ad hoc employees completing one year service on 1.1.1973.

3. 3.5.1977 Regularisation of ad hoc employees completing one year service on 1.4.1977.

4. 20.10.1980 Regularisation of ad hoc employees completing one year service on 1.10.1980.

5. 20.10.1982 Regularisation of ad hoc employees completing one year service on 26.10.1982.

6. 29.3.1985 Regularisation of ad hoc employees completing two years service on 1.4.1985.

7. 8.8.1985 Modifying the order issued on 29.3.1985 and directing that all Class III ad hoc employees having one year service on 1.4.1985 may be regularised.

8. 1.9.1986 Regularisation of Class III ad hoc employees appointed after 1.4.1984.

The orders are issued by the Government of Haryana are the following:

1 1.1.1980 Regularisation of all Class III ad hoc employees who have completed two years service on 31.3.1979.

2. 3.1.1983 Regularisation of ad hoc Clerks in Class III who have completed two years service on 15.9.1982.

3. 19.1.1984 Regularisation of Class III ad hoc employees who have completed two years of service on 15.9.1982. (The employees who were left out in the orders dt. 3.1.1983 were brought within the purview of this order.)

4. 15.2.1987 Regularisation of all Class III ad hoc employees other than teachers working against posts which have been taken out of the purview of the S.S.S.B. and who have completed two years service on 1.11.1986.

In pursuance of the above orders a number of persons who satisfied the conditions prescribed in each of those orders were regularised but many could not be. Their services could not be regularised for the reason that they did not satisfy one or the other of the conditions prescribed in the said orders. They were, however, allowed to continue in service. It is this category of people who approached the High Court of Punjab and Haryana praying for issuance of Writ, Order of Direction for regularisation of their service.

3. At this stage, it would be appropriate to notice the conditions prescribed by the aforesaid orders which were not satisfied by the writ petitioners and on account of which they were not regularised. The order of the Government of Haryana dated 1st January, 1980 prescribed the following conditions for regularisation:

(1) He must have put in a minimum service to two years on 31.12.1979.
(2) He must have been recruited through the Employment Exchange.
(3) The service and conduct of such employee should be of an overall good category.
(4) He must have possessed the prescribed qualifications for the post at the time of his appointment on ad hoc basis.

In the Order dated 3rd January 1983, a further condition, besides the aforesaid conditions, was imposed viz., that the employee must belong to the category for which the post stands reserved.

Similarly in the Order dated 29th March, 1985 issued in the case of Government of Punjab (issued by the President of India) the conditions prescribed were the following:

(1) He must have completed a minimum of two years service on 1st April, 1985.
(2) He must have fulfilled the conditions for eligibility (academic qualifications, experience and age) at the time of his first adhoc/temporary appointment.
(3) He must have been recruited through the Employment Exchange or by open advertisement.
(4) His record of service has been satisfactory.
(5) He is found medically fit for entering the Government service; his character and antecedent have been duly verified and found suitable for Government service.
(6) A regular post/vacancy is available for regularisation.
(7) He has been found fit for regularisation by the Departmental Selection Committee.
(8) Among the persons regularised, interse seniority would be observed. All these persons would be placed junior to those working on regular basis.

These are the conditions common to all the orders issued from time to time by the Government of Punjab and Haryana. Only those ad hoc/temporary employees who could not be regularised for want of satisfying one or the other of the conditions prescribed in the respective orders that had approached the High Court by way of Writ Petitions. They contended that the conditions prescribed in the said orders were arbitrary, discriminatory and unrelated to the object. It is this contention which was examined at some length and accepted by the high court.

4. Besides the ad hoc/temporary employees, certain other categories of persons also approached the High Court whose cases too have been dealt with in the judgment under appeal. They are work-charged employees daily-wagers, casual labour and those employed in temporary/time-bound projects. They too wanted to be regularised. A plea of equal pay for equal work was also advanced by certain petitioners. These pleas too were considered and upheld.

5. The reasons for which the High Court held the conditions prescribed in the orders of regularisation aforementioned, as bad are to the following effect:

(a) VALIDITY OF FIXING A PARTICULAR DATE BY WHICH THE SPECIFIED PERIOD OF SERVICE SHOULD HAVE BEEN COMPLETED.

The High Court held, “there is no magic in fixing a date by which an employee was to complete the prescribed tenure of service for regularisation…….fixing of a date has no reasonable basis or intelligible differentia for the object to achieve……following that view (the view taken by this Court in Inder Pal Yadav, [1985] 3 S.C.R. 837) we hold that the dates fixed for the policies of regularisation of the two Governments are discriminatory…….we hold that the various dates fixed from time to time in their regularisation policies are hit by Articles 14 and 16 of the Constitution of India.”

(b) VALIDITY OF THE REQUIREMENT THAT THE EMPLOYEE SHOULD HAVE BEEN SPONSORED BY EMPLOYMENT EXCHANGE.

The High Court held that this Court has, in the Union of India v. Hargopal (1987 S.C. 1227), held that “if at a given moment suitable candidates amongst candidates sponsored by the Employment Exchanges are not available or no candidate has been sponsored by the Employment Exchange and recruitment is made on ad hoc basis from the sources other than employment exchange, it cannot be said in regularisation policy that such candidates would not be entitled to be regularised. The basic policy decision is that ad hoc employees who have worked for quite some time and have gained experience should be regularised and in case they are shunted out, hardship would be caused in numerous ways…….we find no justification in the policy of regularisation that the candidates sponsored through the Employment Exchanges alone would be entitled to regularisation.” No finding was, however, recorded that the petitioners or any of them were appointed without reference to the Employment Exchange only after the Employment Exchange intimated the concerned authority that no suitable candidate is available with it.

(c) VALIDITY OF THE REQUIREMENT THAT THE CON- CERNED POSTS SHOULD NOT BE WITHIN THE PURVIEW OF S.S.S.B. The High Court held that inasmuch as most of the Class III and Class IV posts were kept out of the purview of the S.S.S.B. in the State of Haryana during the period 1970 to March, 1987 and also because for a period of ten years there was no S.S.S.B. in existence in this State, imposition of this condition by the Government of Haryana is unreasonable and arbitrary.

6. Having expressed the opinions above-mentioned, the High Court referred to certain decisions of this Court and of its own, and expressed the view that continuing employees on adhoc basis for more than one year without regularising them is arbitrary and unreasonable. This principle was also held applicable to other categories of employees like daily wagers, casual labour and others, who were – “workmen” as defined in the Industrial Disputes Act. The court further opined that inasmuch as the State of Haryana was prescribing one year’s service for regularisation (in its orders) the Punjab Government cannot prescribe two years qualifying service. Thus, one year service was declared as the norm for all such employees to become entitled to regularisation.

7. The directions ultimately granted by the High Court while allowing the batch of writ petitions are to the following effect:

(1) The State Government should avoid making any ad hoc appointments. If they do so, it shall be for initial period of six months and not be extended beyond other six months. If their term is extended beyond one year, to such employees the benefits arising from our following conclusions will apply, according to the group in which they fall.

(2) The Punjab State employees covered by Group No. 1 would be considered as regular members of the service on completion of more than one year after ignoring national and permissible breaks in service, as noticed by the Supreme Court in various judgments and also by our Full Banch in Jagdish Lal’s case (supra). However, the concerned departments would pass orders for their regularisation and they would be entitled to all benefits of service from the date of their initial appointments.

As regards Haryana employees covered by Group No. 1 on completion of two years of service they would be considered as regular members of service after ignoring their national and permissible breaks as noticed by the Supreme Court in various judgments and also by our Full Bench in Jagdish Lal’s case (supra), and the concerned departments would pass orders for their regularisation. In case of those, who have completed more than one year of service, their services shall not be terminated till the new policy for regularisation in accordance with our judgment, is framed, in which a direction has been issued to re-frame the policy for regularisation on completion of more than one year of service, and without the condition which may hamper the policy of regularisation, irrespective of the fact whether or not their names were sponsored by the Employment Exchange or that their posts are within or outside the purview of the S.S.S.B. In case such petitioners complete two years, then on completion of two years, they will be considered as regular members of service and appropriate orders for their regularisation will be passed by the concerned departments, and such employees would be entitled to all service benefits from the date of their initial appointments.

(3) The services of work charged, daily wage workers and casual labourers (other than those who fall within the definition of workmen under the 1947 act covered by Group III) Serving in the different departments of Government of Punjab and Haryana, as also their corporations who have put in more than one year of service, would continue to serve and their services will not be dispensed with. The concerned departments shall frame scheme for their absorption, as regular employees on completion of more than one year of service, and their services shall be regularised under those schemes. On regularisation they would be entitled to all service benefits from the date of initial appointments.

As regards work charged employees, who have completed five years of service, they shall be considered to be regular employees under the scheme of regularisation framed by the State of Punjab and order for their regularisation shall be passed. As regards work charged employees of the State of Haryana, on completion of four years of service they shall be considered to be regular under the regularisation scheme framed by the State and appropriate orders for their regularisation shall be passed. However, they would be entitled to all service benefits from the date of initial appointments.

(4) The persons falling in group (III) are those who come within the definition of ‘workmen’ under the 1947 Act. On completion of 240 days, which shall be counted keeping in view the decision of the Supreme Court in The Workmen of American Express International Bank Corporation v. The Management of American Express, A.I.R. 1986 S.C. 458, they would be entitled to benefits of all the provisions of Chapter V-a of the 1947 Act, and their services should not be dispensed with without following the procedure laid in that Chapter. For the purposes of regularisation, what has been stated for the employees falling in Group II, would also be applicable to the employees falling in this group. On regularisation they would be entitled to the benefits of provisions of the 1947 Act as also the Service Rules, from the date of their initial appointments, as applicable to the departments concerned from time to time.

(5) The ad hoc temporary employees in temporary organisations like the Adult Education Scheme and Integrated Child Development Scheme, covered by Group IV, who have continued in service for more than one year with national breaks would be entitled to the benefits of service and benefit of the directions issued by the Supreme Court in Bhagwan Dass’s case supra, and the service of none of them would be terminated except on abandonment of the scheme.

(6) In case services of an employee, who come within the ambit of Groups I to III, have already been terminated on the completion of his more than one year of service, he shall have to be taken back in service in case of a request being made by him to the concerned department of the government before the expiry of three years and two months of such termination. Some of the petitioners, who had put in more than one year of service are out. They would be reinstated forthwith with continuity of service and all benefits.

(7) In case some posts are abolished or some persons are found surplus, junior most would be out on the rule of Last come first go? But if later on vacancies arise or posts are created, they will have to be called back first in the order of seniority, that is, on the rule of last go first come and if still some vacancies remain, new incumbents through S.S.S.B. may be accommodated.

(8) The learned counsel for the State was asked to point out if the claim made by the petitioners for equal pay for equal work as being paid to their counterparts, in view of the decision taken by the Supreme Court in various cases, was not justified. He was not able to point out if the claim so made was not correct. Accordingly, they would be paid wages as claimed from the date of initial appointments in service. The arrears should be paid within six months from today.

It is again made clear that till regularisation policies are framed as directed by us and regularisation orders are passed, the employees shall continue and their services shall not be terminated.”

8. The States of Punjab and Haryana are questioning the validity and correctness of the above directions in these appeals. Some employees have also directly approached this court by way of writ petitions contending that they too are governed by the directions given by the High Court and should be given the benefit of the same. The respondents in these appeals and such writ petitioners are supporting the judgment and directions aforesaid.

Mr. Sibal, learned counsel for the appellants questioned the validity and correctness of the directions given by the High Court on the following grounds:

(1) That the High Court has exceeded its jurisdiction in virtually amending the Government orders on the subject of regularisation. The learned Judges were not justified in holding that the fixation of a particular date in the respective G.Os. was arbitrary and/or that it was un-related to the object. The learned Judges have also erred in holding that the requirement of have been sponsored by the employment Exchange was invalid.

(2) The learned Judges were not justified in law in directing that all persons who have put in one year’s service should be regularised unconditionally. No court has gone so far nor is there any warrant for giving such a direction. Such a direction gives rise to several difficulties and complications for the administration which were evidently not taken into consideration by the learned Judges while giving the said directions.

(3) For regularisation, the first pre-condition is that there must be a vacancy, whether permanent or temporary. Such a vacancy must either be existing or may be created but it must be there. There cannot be a direction for regularisation without a post or a vacancy and the Government cannot be directed to create posts without number. It is beyond the capacity of any Government in India to comply with such directions.

(4) The direction with respect to work-charge establishment is equally unsustainable in law. So is the direction with respect to casual labour and daily wagers.

(5) The learned Judges erred in directing the Government of Punjab to reduce the minimum qualifying service to one year just because the Haryana Government has been prescribing only one year’s qualifying service in its orders. Both are independent States and the rule in one State cannot be thrust upon the other.

(6) Because of the impugned directions, regularly selected persons are being kept out of jobs. The effect of the impugned directions is that unqualified ineligible persons who have come through back door and whose records of service may also not be satisfactory are all being regularised at one go. The rule of reservation is also being violated by the said directions.

(7) It is prerogative of the Executive to create and abolish posts. The Government cannot be compelled to create posts where there is no need for such posts or where the need is no longer there.

(8) The above contentions are supported and reiterated by the counsel appearing for the State of Punjab.

9. On the other hand, it is contended by the counsel for the respondents and the counsel for the writ petitioners that the directions given are perfectly warranted in all the circumstances of the case and have been given following the decisions of this court. It is submitted that the said directions have been given with a view to curb the arbitrariness of the authorities and with a view to give a satisfactory solution to a human problem created by the policies of the Governments themselves. It is submitted by Shri R.K. Garg that the work-charged employees should be treated on par with ad hoc employees and ought to be regularised on the 1st of April of each year. All those persons who are working in the permanent posts ought to be regularised, says the counsel. Shri M.K.Ramamurthy, appearing for the work charged employees contended that the general concept as to work charge employees, viz., that the employment is confined to a particular work or project is not correct. He submitted that this is a legacy left behind by the British. He submitted that the work charge employees are employees of the work charge establishment and so long as once or the other work is there, they should be continued. Inasmuch as the Government, particularly at the present stage of development, is never without a project or work, these employees must also be regularised. Indeed, according to the counsel the concept of work charge establishment is a mere matter of accountancy. It is distinct from project employment. It is really temporary employment which in the nature of things must be treated as regular. Other counsel appearing for the respondents in the appeals and for the writ petitioners supported these contentions.

10. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made the appropriate legislature. This power to prescribe the conditions service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above. The principle relevant in this behalf are stated by this Court in several decisions, of which it would be sufficient to mention two decisions having a bearing upon the issue involved here. They are Dharwad Distt. P.W.D. Literature Daily Wage Employees Association v. State of Karnataka and Ors. [1990] 2 S.C.C. 396 and Jacob v Kerala Water Authority alleged that about 50,000 persons were being employed on daily-rated or on monthly-rated basis over a period of 15 to 20 years, without regularising them. It was contended that the very fact that they are continued over such a long period is itself proof of the fact that there is regular need for such employment. In that view of the matter, following directions were given,after reviewing the earlier decisions of this court elaborately.

“From amongst the casual and daily rated employees who have completed ten years of service by December 31, 1989, 18,600 shall immediately be regularised with effect from January 1, 1990 on the basis of seniority-cum-suitability. There shall be no examination but physical infirmity shall mainly be the test of suitability. The remaining monthly rated employees covered by the paragraph 1 who have completed ten years of service as on December 31, 1989 shall be regularised before December31,1990, in a phased manner on the basis of seniority-cum-suitability, suitability being understood in the same way as above. The balance of casual or daily rated employees who become entitled to absorption on the basis of completing ten years of service shall be absorbed/regularised in a phased manner on the same principle as above on or before December 31,1997. At the point of regularisation, credit shall be given for every unit of five years of service in excess of ten years and one additional increment in the time scale of pay shall be allowed by way of weightage. There was a direction that the claims on other heads would be considered at the time of final disposal. We have come to the conclusion that apart from these reliefs no other would be admissible.”

Having given the said direction, the Bench (Ranganath Misra, M.M.Punchhi and S.C.Agarwal, JJ.) made the following observations:

“We are alive to the position that the scheme which we have finalised is not the ideal one but as we have already stated, it is the obligation of the court to individualise justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the constitution the purse remains in the hands of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to stand. We have, Therefore, made our directions with judicious restraint with the hope and trust that both parties would appreciate and understand the situation. The instrumentality of the State must realise that it is charged with a big trust. The money that flows into the Consolidated Fund and constitutes the resources of the State comes from the people and the welfare expenditure that is mated out goes from the same Fund back to the people. May be that in every situation the same tax payer is not beneficiary. That is an incident of taxation and a necessary concomitant of living within a welfare society.”

11. The second case (Jacob) arose from Kerala. Upon the establishment of Kerala Water Authority under Kerala Water Supply and Sewerage Act, 1986, all the functions of Public Health Engineering Department were also transferred to the Authority. All the employees of the said department were transferred to the Authority. After its constitution, the Authority too recruited some persons. With effect from 30.7.1988, the Authority came within the purview of the Public Service Commission. The employees of the Authority thus fell into four categories namely, (i) those who were in the employment of PHED before the constitution of the Authority and were transferred to the Authority, (ii) those whom the Authority employed between 1st April, 1984 and 4th August, 1986, (iii) those who were appointed between 4th August 1986 and 30th July 1988, and (iv) those who were appointed after 30th July, 1988. Rule 9 of the Kerala State and Subordinate Services Rules empowered the Government to appoint persons, in the case of an emergency, otherwise than in accordance with the Rules. Such appointment was to be valid only for a limited time and such appointee was bound to be replaced by a regular appointee. At the same time, clause (e) of the Rule provided that persons so appointed may be regularised provided they completed two years continuous service on 22.12.1973. Construing the said clause in the light of the constitutional philosophy, this court held:

“Therefore, if we interpret Rule 9(a) (i) consistently with the spirit and philsophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that employees who are serving on the establishment for long spells and have the requisite qualifications for the job, should not be thrown out but their services should be regularised as far as possible. Since workers belonging to this batch have worked on their posts for reasonably long spells they are entitled to regularisation in service.”

In the light of the said principle and in the light of the principles emerging from the decisions of this court – which were elaborately discussed-the following directions were given:

“(1) The Authority will with immediate effect regularise the services of all ex-PHED employees as per its Resolution of 30th January, 1987 without waiting for State Government approval.

(2) The services of workers employed by the Authority between 1st April, 1984 and 4th August, 1986 will be regularised with immediate effect if they possess the requisite qualifications for the post prescribed on the date of appointment of the con- cerned worker.

(3) The services of workers appointed after 4th August, 1984 and possessing the requisite qualifications should be regulated in accordance with Act 19 of 1970 provided they have put in continuous service of not less than one year, artificial breaks, if any, to be ignored. The Kerala Public Service Commission will take immediate steps to regularise their services as a separate block. In doing so the Kerala Public Service Commission will take the age bar as waived.

(4) The Kerala Public Service Commission will consider the question of regularisation of the services of workers who possess the requisite qualifications but have put in less than one year’s service, separately. In doing so the Kerala Public Service commission will take the age bar as waived. If they are found fit they will be placed on the list along with the newly recruited candidates in the order of their respective merits. The Kerala Public Service commission will be free to rearrange the list accordingly. Thereafter fresh appointments will issue depending on the total number of posts available. If the posts are inadequate, those presently in employment will make room for the selected candidates but their names will remain on the list and they will be entitled to appointment as and when their turn arrives in regular course. The list will enure for such period as is permissible under the extant rules.

(5) The Authority will be at liberty to deal with the services of the workers who do not possess the requisite qualifications as it may consider appropriate in accordance with law.

(6) Those workers whose services have been terminated in violation of this Court’s order in respect of which Contempt Petition No. 156 of 1990 is taken out shall be entitled to the benefit of this order as if they continue in service and the case of each worker will be governed by the clause applicable to him depending on the category to which he belongs and if he is found eligible for regularisation he will be restored to service and assigned his proper place.”

12. As would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. Now, take the directions given in the judgment under appeal. Apart from the fact the High Court was not right-as we shall presently demonstrate in holding that the several conditions imposed by the two Governments in their respective order relating to regularisation are arbitrary not valid and justified – the high Court acted rather hastily in directing wholesome regularisation of all such persons who have put in one year’s service, and that too unconditionally. We may venture to point out the several problems that will arise if such directions become the norm:

(a) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commission or other such body, as the case may be. A large number of persons apply. Inevitably there is bound to be some delay in finalising the selections and making the appointments. Very often the process of selection is stayed or has to be re-done for one or the other reason. Meanwhile the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continued for more than one year because the regular selection has not yet been finalised. Now according to the impugned direction the temporary hands completing one year’s service will have to be regularised in those posts which means frustating the – regular selection. There would be no post left for regularly selected persons even if they are selected. Such cases have indeed come to this court from these very two States.

(b) In some situations, the permanent incumbent of a post may be absent for more than a year. Examples of this are not wanting. He may go on deputation, he may go on Faculty Improvement Programme (F.I.P.), or he may be suspended pending enquiry into charges against him and so on. There may be any number of such situations. If a person is appointed temporarily in his place and after one year he is made permanent where will the permanent incumbent be placed on his return? Two persons cannot hold the same post on a regular or permanent basis.

(c) It may also happen that for a particular post a qualified person is not available at a given point of time. Pending another attempt at selection later on an unqualified person is appointed temporarily. He may continue for more than one year. If he is to be regularised, it would not only mean foreclosing of appointment of a regular qualified person, it would also mean appointment of an unqualified person.

(d) Such directions have also the effect of disregarding and violating the rule relating to reservation in favour of backward class of citizens made under Article 16(4). What cannot be done directly cannot be allowed to be done in such indirect manner.

(e) Many appointments may have been made irregularly – as in this case – in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices.

These are but a few problems that may arise, if such directions become the norm. There may be many such and other problems that may arise. All this only emphasises the need for a fuller consideration and due circumspection while giving such directions.

13 . Now we shall proceed to examine whether the High Court was right in holding that the several conditions prescribed in the orders issued by the two Governments from time to time are bad. In particular, whether the High Court was right in holding that prescribing a particular date by which the prescribed period of service should have been put in and the further condition that the candidate must have been sponsored by Employment Exchange, are arbitrary and unreasonable. These G.Os. were issued by the Government from time to time. These orders are not in the nature of a statute which is applicable to all existing and future situations. They were issued to meet a given situation facing the Government at a given point of time. In the circumstances therefore, there was nothing wrong in prescribing a particular date by which the specified period of service (whether it is one year or two years) ought to have been put in. Take for example, the orders issued by the Haryana Government. The first order is dated 1st January, 1980. It says, a person must have completed two years of service as on 31st December, 1979, i.e., the day previous to the issuance of the order. How could it be said that fixing of such a date is arbitrary and unreasonable? Similarly the order dated 3rd January, 1983 fixes 15th September, 1982 as the relevant date. This notification/order does two things. Firstly, it excludes class III posts of clerks from the purview of the S.S.S.B. in case of those who have completed a minimum of two years of service as on 15th September, 1982, and secondly, it provides for their regularisation subject to certain conditions. No particular attack was made as to this date in the High Court. Consequently the Government of Haryana had no opportunity of explaining as to why this particular date was fixed. Without giving such an opportunity, it cannot be held that the fixation of the said date is arbitrary. What is more relevant is that the High Court has not held that this particular date is arbitrary. According to it, fixation of any date whatsoever is arbitrary, because in its opinion the order must say that any and every person who completes the prescribed period of service must be regularised on completion of such period of service. The next order dated 24th March, 1987 prescribes the date as 31.12.1986 i.e., the end of the previous year. In the circumstances, we see no basis for holding that fixation of the date can be held to be arbitrary in the facts and circumstances of the case. In this connection, reference may be made to the decision of this court in Dr. Sushma Sharma v. State of Rajasthan, (1985) S.C. 367. The Governor of Rajasthan had issued an ordinance stating that “all temporary lectures as were appointed as such on or before the 25th day of June 1975 and are continuing as such at the commencement of the Rajasthan Universities Teachers (Absorption of Temporary Lecturers) Ordinance, 1978 (Ordinance No. 5 of 1978) shall be considered by the University concerned for their absorption and substantive appointment on the recommendation of the Screening Committee constituted under section 4 subject to their fulfilling the conditions of eligibility including minimum qualifications prescribed by the University concerned under the relevant law as applicable on the respective dates of their temporary appointments and subject also the availability of substantive vacancies of lecturers in the department concerned.”

The validity of the said ordinance was questioned on the ground that the fixation of the date, 25th day of June, 1975, was arbitrary and has been chosen only because that was the date on which internal emergency was proclaimed. It was also submitted that the further requirement that the lecturer appointed should be continuing as such on the date of commencement of the ordinance (12.6.1978) is an equally arbitrary and unreasonable condition. Both these contentions were rejected by this court. The court negatived the contention that the prescription of the said date and the further requirement of being in service on the date of ordinance have the effect of excluding persons who have put in long years of service but were not continuing on the date of ordinance, making the said conditions discriminatory. Such possibilities, it was held, were not enough to castigate the said condition as aribitrary. It was observed that there was no evidence to show any attempt on the part of the Government to separate or penalise pre-emergency appointees or for that matter any particular class of oppointees. In this context, we must remember that what is in issue is not the wisdom of the executive in issuing a particular order or orders but the validity thereof. The court may think it more desirable that the order should be in particular terms as indicated by it, but that is not enough.

14. The next question is whether the orders issued by the two Government were arbitrary and unreasonable in so far as they prescribed that only those employees who had been sponsored by Employment Exchange should alone be regularised. In our opinion, this was a reasonable and wholesome requirement designed to curb and discourage back door entry and irregular appointments. The Government orders say that all those who have been sponsored by Employment Exchange or have been appointed after issuing a public advertisement alone should be regularised. We see no unreasonableness or invalidity in the same. As stated above, it is a wholesome provision and ought not to have been invalidated. Moreover, as pointed out hereinbefore, it is not found by the High Court that the writ petitioners were appointed only after obtaining a non-availability certificate from the Employment Exchange. The decision relied upon by the High Court does not say that even without such a certificate from Employment Exchange, an appointment can be made or that such appointment should be consistent with the mandate of Articles 14 and 16.

We must also say that the further requirement prescribed in the orders viz., that the employees must have possessed the prescribed qualifications for the post at the time of his appointment on ad hoc basis is equally a valid condition. Indeed, no exception is taken to it by the High Court.

15. We may now consider whether the High Court was justified in holding that inasmuch as Haryana and Punjab are sister States and because prior to 1966 Haryana was a part of Punjab, the rule relating to length of service requisite for regularisation should be uniform in both the states. We see absolutely no basis for the said holding. They are two different States having their own Governments, merely because one Government chooses to say that one year’s temporary or ad hoc service is enough for regularisation it cannot be said that the other state must also prescribe the very same period or that it cannot prescribe a longer or shorter period. The fact that there is a single High Court for both the States and the Union Territory of Chandigarh is no ground for saying that the orders issued by them should be uniform.

16. The learned Judges have further directed that in so far as the State of Haryana is concerned class III and IV posts which were within the purview of the S.S.S.B. shall equally be within the purview of regularisation orders issued by it. The learned Judges have pointed out that for a period of 10 years there was no such Board functioning and further that from the year 1970 to 1987 “most of the class III and IV posts with which we are concerned were kept out of the purview of the S.S.S.B. “The correctness of the said factual statement is not questioned before us. It is therefore, not necessary to alter or modify the direction made by the High Court on this aspect. In fact, no arguments were addressed to us with respect to the said direction made by the High Court. If any of the petitioners have been excluded from consideration (for regularisation) on the basis of the above condition, they may be considered and appropriate orders passed.

17. Now coming to the direction that all those adhoc/temporary employees who have continued for more than an year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every adhoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him- which means creation of a vacancy (b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for applications – which means he had entered by a back-door (c) he was not eligible and/or qualified for the post at the time of his appointment (d) his record of service since his appointment is not satisfactory. These are in addition to some of the problems indicated by us in pare 12, which would arise from giving of such blanket orders. None of the decisions relied upon by the High Court justify such whole-sale , Unconditional orders. Moreover, from the mere continuation of an adhoc employee for one year, it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further, there can be no ’rule of thumb’ in such matters. Conditions and circumstances of one unity may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year’s service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. Judged from this stand point, the impugned directions must be held to be totally untenable and unsustainable.

18. So far as the members of the work-charged establishment are concerned, the nature of their employment is already pronounced upon by this court in Jaswant Singh v. Union of india, [1980] 1 S.C.R.426

It is stated therein:

“A work-charged establishment broadly means an establishment of which the expensed, including the wages and allowances of the staff, are chargeable to “works”. The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the work. The entire strength of labour employed for the purpose of the Beas Project was work-charged.
The work-charged employees are engaged on a temporary basis and their appointments are made for the executive of a specific work. From the very nature of their employment, their services automatically come to an end on end on the completion of the works for the sole purpose of which they are employed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurance Schemes.
But though the work-charged employees are denied these benefits, they are industrial workers and are entitled to the benefits of the provisions contained in the Industrial Disputes Act. Their rights flow from that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a better position than temporary servants like the other petitioners who are liable to be thrown out of employment without any kind of compensatory benefits.”

Be that as it may, so far as the State of Haryana is concerned, this contention has become of academic interest in view of the orders issued on 24th March, 1987 and 6th April 1990, which we shall presently notice. In view of the said orders, the direction given by the High Court becomed unneccesary. Though the State of Punjab has not issued any such orders, it appears from the the affidavit filed on its behalf(sworn to by Sri P.C.Sangar, Deputy Secretary to the Government, Department of Personnel dated 19.3.1991) that a scheme of regularisation of these employees has been prepared in pursuance of the impugned judgement. The said scheme is, however, not made conditional upon the result of these appeals against the judgment. On a perusal of the scheme, we find it to be a reasonably fair scheme. We hope and trust that irrespective of the result of these appeals, the said scheme shall be given effect to by the State of Punjab.

19. The High Court has also directed that all those employees who fall within the definition of “workmen”contained in the Industrial Disputes Act will also be entitled to regularisation on par with the work-charged employees in whose case it is directed that they should be regularised on completing five years of service in Punjab and four years of service in Haryana. This direction is given in favour of those casual labour and daily wagers who fall within the definition of workmen. In so far as workcharged employees, daily wage workers and casual labourers who do not fall within the definition of workmen are concerned, the High Court had directed their regularisation on completion of one year’s service. We find this direction as untenable as the direction in the case of adhoc/temporary employees. In so far as the persons belonging to the above categories and who fall within the definition of Workmen are concerned, the terms in which the direction has been given by the High Court cannot be sustained. While we agree that persons belonging to these categories continuing over a number of years have a right to claim regularisation and the authorities are under an obligation to consider their case for regularisation in a fair manner, keeping in view the principles enunciated by this court, the blanket direction given cannot be sustained. We need not, however, pursue this discussion in view of the orders of the Government of Haryana contained in the letter dated 6.4.1990 which provide for regularisation of these persons on completion of ten years. We shall presently notice the contents of the said letter. In view of the same, no further directions are called for at this stage. The Government of Punjab, of course, does not appear to have issued any such orders governing these categories. Accordingly, there shall be a direction to the Government of Punjab to verify the vacancy position in the categories of daily wagers and casual labour and frame a scheme of absorption in a fair and just manner providing for regularisation of these persons, having regard to their length of service and other relevant conditions. As many persons as possible shall be absorbed. The scheme shall be framed within six months from today.

20. So far as temporary or time-bound schemes are concerned, the matter is exhaustively dealt with and pronounced upon in Delhi Development Horticulture Employees Union v. Delhi Administration, (1992) 1 J.T. 394. We need not add to it. In any event, the direction given by the High Court with respect to this category has not been assailed before us.

21. We may also point out that after the filing of the writ petitions and during the pendency of the Special Leave Petitions in this court, the Government of Haryana has issued certain further orders to which reference may now be made.

(i) On 24th March 1987 the Chief Secretary to the Government of Haryana wrote to all the Heads of Departments and others stating the following : “the matter relating to the regularisations of the work charged employees was engaging attention of the Government for some time past. After careful consideration it has now been decided that the services of all the work charge employees working in the Haryana State who have completed four years or more continuous service on 31.12.1986 should be regularised”. All the authorities were directed to take immediate appropriate action in that behalf. (We have no reason to believe that the said orders will not be given effect to in full).

(ii) On 5th February, 1990 the Chief Secretary to the Government of Haryana wrote to all the Heads of Departments and others apprising them of the new policy and procedure evolved by the Government in the matter of making adhoc appointments. The letter says that no adhoc appointment shall be made in future on any posts unless a proper requisition has been sent to Haryana Public Service Commission/Subordinate Services Selection Board. It says further that if any adhoc appointment is required to be made it shall be made only through Employment Exchange or by advertising such post in a daily newspaper after obtaining a N.A.C. certificate from the Employment Exchange. Such appointment even if made shall not last beyond nine months and will be subject to a regular appointment being made by H.P.S.C./S.S.S.B.

(iii) In pursuance of the interim orders passed by this court in this batch (recording the undertaking given by the counsel for the State of Haryana to frame a scheme for absorption) the Government of Haryana did frame of such a scheme contained in the Chief Secretary’s letter dated 6.4.1990 addressed to all the Heads of Department. It covers the ad hoc employees, work charged employees, casual workers/daily rated employees, workmen, ad hoc/temporary employees in temporary organisation as also seasonal workers. It is but appropriate that we set out the said letter in full:

No.6/4/90-2GSI
From
The Chief Secretary to Govt., Haryana
To
1. All Head of Departments, Commissioner Ambala, Hisar, Rohtak and Gurgaon Divisions and all the Deputy Commissions in the State.

2. The Registrar, Punjab and Haryana High Court, Chandigarh. Dated Chandigarh, the Subject: Policy regarding regularisation of adhoc/work- charged employees and causal/daily wagers etc.
c ……………………
Sir,

I am directed to refer to the subject noted above and to state that the matter regarding laying down the policy with regard to regularisation of the services of Class-III ad hoc employees, work- charged/daily wagers etc. has been under consideration of Govt. for some time past. After careful consideration, it has been decided that the Regularisation of these employees shall be on the following terms and conditions:- Category-I, Adhoc employees

(i) Only such adhoc class-III employees, who have completed two years service on 30.9.1988, shall be regularized to the extent of available regular posts/vacancies on that date.

(ii) The work and conduct of such employees should have been over all good category and no disciplinary proceedings are pending against them.

(iii)The employees posses the prescribed qualifications for the post at the time of their appointment on adhoc basis.

(iv) The regularisation will be against the posts/vacancies of the relevant categories only and in case, the employees belonging to general category have been appointed against reserved category posts/vacancies the services of such adhoc appointees shall not be regularises and their services shall be terminated in case, no general category vacancy/post(s) is available on 30.9.88.

(v) The recommendees of the SSS board shall be absorbed against the remaining vacancies, if any. The names of such remaining recommendees as cannot be absorbed shall be returned to the Board to enable it to recommend their names to other departments for appointments against the clear vacancies.

(vi) After regularisation of adhoc employees under the policy, if some posts/vacancies still remain unfilled, these shall be filled in from the recommendees of the SSS Board, if any. If some shortfall remains even after than, the procedure laid down in the insts. issued vide No.50/35/88- 5GSI, dated 5.2.90 shall be followed, for making up the shortfall, it felt necessary.

(vii) The employees, who are not covered under the above policy, their services shall be terminated.

(viii) The seniority of the adhoc class-III employees so regularised viz-a-viz class-III employees appointed on regular basis shall be determined w.e.f.30.9.88. The inter-se seniority of such adhoc Class-III employees shall be determined in accordance with the date of joining the post on adhoc basis. If the date of joining the post(s), on adhoc basis by such adhoc employees was the same, then the elder employee shall rank senior to an employee younger in age. If the date of joining the direct recruit and the date of Regularisation is the same, the direct recruit shall be senior.

Category-II. Work-Charged employees The work-charged employees who have completed 4 or more years of continuous service as on 30.9.88 shall be regularised. On Regularisation these employees shall be liable for transfer anywhere in the State of Haryana on any project/work. Category-III. Casual Workers/Daily rated employees With regard to these employees, the following policy will be followed:

(i) Casual/daily rated employees appointed on or before 30.9.1983 shall be treated as monthly rated established employees on a fixed pay of Rs. 750 (minimum of Class-IV pay scale) or the rates as fixed by the Deputy Commission concerned p.m. without any allowance w.e.f. 1.10.88. They shall be entitled to an annual increment of Rs. 12 till their services are regularized. On Regularisation, they shall be put in the time scale of pay applicable to the lowest Group ’D’ in the Govt. and they would be entitled to all other allowances and benefits available to regular Govt. servants of the corresponding grade.

(ii) The casual of daily rated employees, who have completed 10 years or more of service on 30.9.88 shall be regularized w.e.f. 1.10.88 on the basis of seniority-cum-suitability.

(iii) In respect of all such daily rated employees who have not yet completed 5 years service, a special review should be carried out regarding the requirement of their continuance or retrenchment as the case may be.

(iv) In the case of those, who are required to be continued in service, the same terms and conditions will be applicable as in sub-paras (i) & (ii) above on completion of 5 years and 10 years service respectively.

(v) In the case of those whose services are no longer required, they may be relieved of their duties at the earliest possible. Category-IV. Workmen.

The employee, who come within the definition of ’Workmen’ under the Industrial Disputes Act, shall be entitled to the benefits under the Act and their services should be dispensed with only after following the procedure laid down in the Act and after granting the requisite retrenchment benefits. Category-V. Adhoc/temporary employees in temporary organization.

The services of the employees working in temporary organization can be terminated at the abandonment of the scheme and they will not be eligible for Regularisation. Category-VI. Seasonal workers.

The services of seasonal workers appointed as daily wager or on work-charged basis shall not be regularized and they will be retrenched on completion/abandonment of the work.

2. The above policy may be brought to the notice of all concerned for strict compliance. Yours faithfully, Sd/- Under Secretary General Administration for Chief Secretary to Government, Haryana.

(iv) On 28th February, 1991, yet another order has been issued by the Governor of Haryana under the proviso to Article 309 of the Constitution providing for regularisation of class III employees who have put in service of two years on 31st December, 1990 subject to usual conditions. This order reads as follows:

“Notification The 28th February, 1991 No. G.S.R. 11/Const./Art.309/91.- In exercise of the powers conferred by the proviso to article 309 of the Constitution of India read with the proviso to clause 6 of Haryana Government, General Administration Department (General Services), notification No.523-3 GSI-70/2068, dated the 28th January, 1970 the Governor of Haryana hereby specifies such Class III posts as have been held for a minimum period of two years on the 31st December, 1990, by Class III employees on ad hoc basis to be taken out of the perview of the Subordinate Services Selection Board, Haryana and their services shall be regularised if they fulfill the following conditions, namely:-

(i) that the employees have completed two years services on 31st December, 1990, and were in service on 31st December, 1990.

(ii) that the employees shall be regularised against the posts/vacancies of relevant categories. The employees of general category may be regularised in excess of their quota with the clear stipulation that in future recruitments only the candidates from reserve categories will be appointed until the back log arising out of utilisation of reserve category vacancies by general category ad hoc employees is cleared:

(iii) that the employees should have been recruited through the Employment Exchange or directly appointed by the appointing authority after obtaining the non-availabilty certificate from the Employment Exchange;

(iv) that the work and conduct of such employees shall be of over all good category and no disciplinary proceedings are pending against them, and

(v) that the employees possessed the prescribed qualifications for the post at the time of their appointment on ad hoc basis.

2. The seniority of the ad hoc Class III employees so regularised, viz-a-viz, the Class III employees appointed on regular basis should be determined with effect from 31st December, 1990. The inter- se-seniority of such ad hoc Class III employees shall be determined in accordance with the date of their joining the post on ad hoc basis. If the date of joining the post (s) on ad hoc basis by such ad hoc employees was the same, the an old employees shall rank senior to an employee younger in age. If the date of appointment of the direct recruit and the date of regularisation of ad hoc employees is the same, the direct recruit shall be senior. KULWANT SINGH chief Secretary to Government Haryana ”

22. So far as the Punjab Government is concerned, an affidavit sworn to by Sri G.K.Bansal, Under Secretary to the Government, Department of Personnel, Government of Punjab has been filed before us stating that the instructions issued by the Haryana Government for regularisation of the services of class III ad hoc employees contained in their notification dated 28.2.1991 shall be adopted by the Punjab Government mutatis mutandis. The relevant portion of the affidavit may be extracted herein below:

“The policy instructions for the regularisation of services of Class-III adhoc employees issued by Haryana Government vide their notification dated 28/2/91 mutatis mutandis will be adopted as under:-

(i) That the adhoc/temporarily appointed employees should have completed a minimum of two years service on 31/12/90 and was in service on 31/12/90. While calculating the period of service, any break of notional nature not exceeding 30 days falling between adhoc/temporarily appointments in the same category of post (s) and in the same Department is to be ignored. However, the break in adhoc/temporary service would be ignored in cases where:

(a) The employee concerned left service of his own volition either to join some other Department or for some other reasons, or

(b) the adhoc/temporary appointment was against a post/vacancy for which no regular recruitment was intended/required to be made e.g. leave arrangements for filling of other short-term vacancies.

(ii) that they fulfill the conditions of eligibility as prescribed (i.e. they have been recruited through the Employment Exchange or by open advertisement) academic qualifications, experience and the condition of age at the time of their first/adhoc/temporary appointment in accordance with the Departmental service rules and instructions issued by the government.

(iii) that their record of service is satisfactory.

(iv) that they have been found medically fit for entry into Government service and that their character and antecedents have also been duly verified and found suitable for Government service;

(v) that a regular post/vacancy is available for regularisation;

(vi) that they have been found fit for regularisation by the Departmental Selection Committees constituted in accordance with the instructions contained in Government circular letter No.12/30/86/IGE/5139 dated 15/4/86;

(vii) The seniority of the adhoc/temporarily appointed class-III employees so regularized vis-a- vis class-III employees appointed on regular basis shall be determined w.e.f. 31.12.90. The inter-se seniority of such adhoc/temporarily appointed class-III employees shall be determined in accordance with the date of their joining the post on adhoc/temporary basis. If the date of joining the post(s) on adhoc/temporary basis by such adhoc/temporarily appointed employees was the same then an older employee shall rank senior to an employee younger in age. If the date of joining of the direct recruit and the date of regularisation of adhoc-temporarily appointed employee is the same, the direct recruit shall be senior;
The cases of such adhoc/temporarily appointed employees who have already completed three years service on 31st December, 90 and have satisfactory record of service but who do not fulfill the prescribed conditions with regard to qualifications, age or mode of their initial recruitment will also be considered for regularisation in relaxation of these conditions if the Departmental Service Rules applicable to these employees provide for relaxation of these conditions of recruitment.”

We are sure that many of the employees would get regularised under the orders aforementioned issued by both the Governments.

23. This is not a case, we must reiterate, where the Governments have failed to take any steps for regularisation of their adhoc employees working over the years. Every few years they have been issuing orders providing for regularisation. In such a case, there is no occasion for the court to issue any directions for regularising such employees more particularly when none of the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory. The court cannot obviously help those who cannot get regularised under these orders for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their adhoc appointment and further whose record of service is satisfactory.

24. With respect to direction No. 8 (equal pay for equal work) we find the judgment singularly devoid of any discussion. The direction given is totally vague. It does not make it clear who will get what pay and on what basis. The said direction is liable to be set aside on this account and is, accordingly, set aside.

In the matters posted before and heard by us, there are several S.L.Ps. preferred against orders of the High Court allowing writ petitions following the judgment in Piara Singh. Leave is granted in all such matters as well and the appeals allowed in the same terms as the appeals against the judgement in Piara Singh.

25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of adhoc/temporary employees in government service.

The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc/temporary employee.

Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

An unqualified person ought to be appointed only when qualified persons are not available through the above processes.

If for any reason, an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.

The proper course would be that each States prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same way be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.

So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell – say two or three years – a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.

We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of adhoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.

These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein.

26. So far as the employees and workmen employed by Statutory/Public Corporations are concerned, it may be noted that they have not issued any orders akin to those issued by the Punjab and Haryana Government. Even so, it is but appropriate that they adopt as far as possible, keeping the exigencies and requirements of their administration in view, the criteria and principles underlying the orders issued by their Government in the matter of regularisation and pass appropriate orders. In short, the Statutory/Public Corporations in Haryana will follow the orders contained in the letter dated 6.4.1990 referred to above, as supplemented by the orders in the Notification dated 28.2.1991, where as the Statutory/Public Corporations in Punjab shall follow the criteria and principles stated in the affidavit of Sri G.K.Bansal, Under Secretary to the Government of Punjab, Department of Personnel referred to in para 22 above. These directions shall not, however, apply to these Statutory/Public Corporations functioning within these States as are under the control of the Government of India. These Corporations will do well to evolve an appropriate policy of regularisation, in the light of this judgment, if they have not already evolved one, or make their existing policy consistent with this judgment to avoid litigation.

27. For the above reasons, all the appeals are allowed and the orders under appeal are set aside. The directions given by the High Court in the judgment in W.P.(C) No.72/88 namely direction Nos. 1,2,3,4,6 and 8 are set aside. The only direction given herewith is the one contained in para 19.

The writ petitions seeking the benefits given in the judgment under appeal are dismissed.

No costs.
H N.P.V.
Appeals disposed of. 871

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P.A. Jacob …Appellant
Appellant Advocate : P.C. Chacko and; Roy Chacko, Advs.
Vs
The Superintendent of Police, Kottayam and anr. …Respondent
Respondent Advocate : Augustine Joseph, Government Pleader

Judge Chettur : Sankaran Nair, J.
Reported in : AIR 1993 Ker 1
Acts : Constitution of India – Articles 14, 19, 19(1) and 21; Kerala Police Act, 1961 – Sections 19 and 23; Code of Criminal Procedure (CrPC) , 1974 – Sections 133
Cases Referred : West Virginia State Board v. Barnette

1. Claiming a fundamental right to use a loud speaker at public meetings to voice his views, petitioner seeks to restrain respondents from interfering with the use of a loud speaker by him.

2. Petitioner belongs to a denomination of Christianity, known as ‘Knanaya’ Christians. Thomas of Cana came to India from Mesopottomia in 344 A.D. and organised the south eastern church of Syrian Christians, as St. Thomas organised the north eastern church in A.D. 52. The followers of Thomas of Cana, came to be known as ‘Knanaya’ Christians. Some of the Knanaya Christians follow the rites of the Catholic Church, while others follow the Marthomite rites. Members of ‘Knanaya’ denomination do not marry outside that denomination, it is said — with a view to preserve the purity of stock. This practice is denounced by petitioner. In his view, a Knanaya Christian should be free to marry anyone, professing the faith of Christianity. To propagate his views in this regard, petitioner sought permission to hold meetings using sound amplifiers. Second respondent– Sub-Inspector of Police, granted permission (Ext. P1), but withdrew the permission later, apprehending that views of petitioner may incite to violence the conservatives in the Church. Incidentally, this apprehension or misapprehension, has been proved wrong, as a meeting could be held pursuant to interim orders of this Court, admittedly without any disturbance.

3. Petitioner submits that freedom of speech and expression imply freedom to use amplifying devices and cited the decision of the Gujarat High Court in Indulal v. State, AIR 1963 Guj 259 : (1963 (2) Cri LJ 502) in support of his contention. The Gujarat High Court relied on the opinion of the Judicial Committee in Francis v. Chief of Police, (1973) 2 AER 251 to hold that freedom of speech included freedom to circulate one’s views, in any manner. The Allahabad High Court however took a contrary view, in Rajnikant v. State, AIR 1958 All 360 : (1958 All LJ 56). H.M. Seervai (Constitutional Law (I) 3rd Edn. page 504) prefers the view of the Gujarat High Court. There is also a decision of this Court in D. Ananda Prabhu v. District Collector, 1974 KLT 291 : (AIR 1975 Ker 117) following the view of the Gujarat High Court. But this Court did riot consider the question whether a fundamental right was involved in the matter of using a loud speaker. The learned Judge assumed that there was a fundamental right, and proceeded to consider the reasonableness of a restriction imposed. After referring to the decision of the Gujarat High Court, the learned Judge observed:

‘It appears to me that the right conferred by Article 19(1)(a)…….have to be understood inthe same way (as in Francis’s case). I do notpropose to examine this aspect, any further.’

No decision of the Apex Court on this aspect was brought to my notice.

4. The core question is whether the Constitution guarantees a right to use a soundamplifying device, or whether use of such a device is part of the right to freedom of speech. Freedom of speech and expression are rights cherished by all free societies. That freedom implies not only freedom to express the thought we approve of, but freedom to express the thought, we hate. A debate of ideas is essential in any free society. No one can forbid legitimate efforts to change the mind of society by expression of views, or advocating different persuasions or even by questioning the existing order. J.S. Mill said :

‘If we never hear questions, we will forget the answers.’

Maintenance of opportunity for free political discussion is thus a cardinal principle of our Constitutional system. History bears witness to this process. Debate, brought in its wake, new thoughts and new ethoes. Time has upset many fighting faiths. What was once regarded blasphemy, became the truth of another generation. P2p15. As observed in Abrams v. U.S. (250US616):

‘Men may come to believe, even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by a free trade in ideas that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely may be carried out. That is the theory of our Constitution.’

(Holmes, J.)

This was reiterated in U.S. v. Schiwmmer (297 US 644):

‘Every idea is an incitement…….elequencemay set fire to reason. If in the long run the belief expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance to have their way.’

6.But, there are frontiers even to freedoms. Liberty is not the right toperpetuate licentiousness. Free speech does not protect sedition, libel or obscenity. It does not sanction intrusion into rights of others.

To be let alone, is as much a freedom, as the freedom to be heard. Right to silence or solitude, is as much a right, as right to expression is. What is negatively the right to silence, is positively freedom from injury by noise.

7. The amplitude of the right of free speech in its various facets enshrined in Article 19 of the Constitution, has been considered by the Supreme Court of India in Romesh Thappar v. The State of Madras, AIR 1950 SC 124 : ((1950) 51 Cri LJ 1514); Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515 : (1985 Tax LR 2451); Hamdard Dawakhana v. The Union of India, AIR 1960 SC 554: (1960 Cri LJ 735); Reliance Petrochemicals Ltd. v. Proprietors, Indian Expresss, Bombay (P) Ltd., AIR 1989 SC 190 : (1989 Tax LR 66) and other cases.

8. Likewise, the right to free speech, embodied in the First Amendment in the American Constitution, has come for consideration of the United States’ Supreme Court time and time again (Schenck v. United States, 249 US 47; Abrams v. U.S., 250 US 616; Gitlow v. New York, 268 US 652; Whitney v. California, 274 US 357; De Jonge v. State of Oregon, 299 US 353; West Virginia State Board v. Barnette, 319 US 624; Brandenburg v. State of Ohio, 395 US 444; Hess v. Indiana, 414 US 105; Lehman v. City of Shaker Heights, 418 US 298, Breard v. City of Alexandria, 341 US 622).

9. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515, the Supreme Court of India highlighted the free speech content of Article 19 and its parameters. The right is not absolute. For that matter, under the First Amendment, restrictions are not alien to the constitutional . scheme. In Roth v. U.S. (354 US 746), the Supreme Court held that obscenity is not a protected right. In Mear v. Minnesota (283 US 697) and Times Film Corporation v. Chicago (365 US 43), the United States’ Supreme Court held that restraints on free speech were constitutionally permissible. Chaplinsky v. New Hampshire (315 US 568); Feiner v. New York (340 US 315); Dennis v. U.S. (341 US 494), Niemotko v. Maryland(340 US 268), Poulos v. New Hampshire (345 US 395), Cox v. Louisiana (379 US 536), Public Utilities Commission v. Pollak (343 US 451), Adderley v. Florida (385 US 39) and Grayned v. City of Rockford (408 US 104) are also authorities for the same proposition.

10. However wide a right is, it cannot be as wide, as to destroy similar or other rights in others.

Jefferson said ;

‘ No one has a natural right to commit aggression on the equal rights of another.’

J.S. Mill said:

‘If all mankind minus one were of one opinion, and if only one person was of contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.’

Freedom or right, is not an exclusive matter between the State and a citizen. One man’s freedom, may destroy another man’s freedom. A community of rights, not always synchronizing with each other, have to be harmonised, if any freedom is to be real. In Abrams v. U.S. (250 US 616) the United States’ Supreme Court said :

‘Nobody can be compelled to accept any idea… not even of national unity.’

Again in Breard v. City of Alexandria (341 US 622), the Court highlighted the rights of the recipient or captive audience:

‘Freedom of speech or press, does not mean that one can talk or distribute where, when and how one chooses. Rights of those, other than the advocates, are involved. By adjustment of rights we can have, both liberty of expression and an orderly life.’

In this area, there are no prophets who can commend attention, and for that matter, not all propagandists and pamphleteers, are prophets.

11. The right to speech implies, the right to silence. It implies freedom, not to listen, and not to be forced to listen. The rightcomprehends freedom to be free from what one desires to be free from. What could be more basic, to the concept of freedom than this? Justice Douglas articulated this freedom as:

‘…….right to be let alone is the beginning ofall freedoms..,.. When we force people to listen to another’s ideas, we give the propagandist a powerful weapon. One man’s lyric may be another’s vulgarity.’

12. Free speech is not to be treated is a. promise to everyone with opinions and beliefs, to gather at any place and at any time and express their views in any manner. The right is subordinate to peace and order. Referring to the natural limits of liberty, J.S. Mill said:

‘Liberty of an individual must be thus far limited — he must not make himself a nuisance to other.’

13. In this background, the question whether use of a loud speaker is a fundamental right, or part of the complements of a fundamental right, has to be viewed.

14. With great respect, I find it difficult to agree with thp view of the Gujarat High Court in Indulal v. State (AIR 1963 Guj 259), that freedom of Speech includes freedom to use sound amplifiers. In Francis v. Chief of Police (1973 (2) All England Reports 251), relied pn by the Gujarat High Court to find an absolute freedom, Pearson L.J. pointed out that:

‘Some regulation of the use of loud speaker is required in order that citizens who do not wish to hear what is being said may be protected.’

This limitation was noticed by A.L. Goodhart (69 Law Quarterly Review 317). If an absolute right is conceded in this behalf, it will be an unlimited charter for aural aggression. If a sound amplifier is accepted as an attribute of freedom of expression, then on principle, use of a Radio Transmitter also cannot be denied. There can be other extensions, pernicious in their effect on national security, public order or morality.

15. Even the First Amendment did notacknowledge use of a loud sjpcaker as part of the right of free speech. In Kuvacks v. Cooper (336 US 77), the majority of seven Judges held that sound amplification in public places, is not part of the right of free speech. Novacks was convicted under an Ordinance, prohibiting use of sound amplifiers in a public street. He challenged the conviction, as violative of First Amendment protection. The Court held that restrictions on free speech, imposed by the Ordinance, were constitutionally permissible. Frankfurter and Jackson (JJ) held that sound trucks in streets, can be absolutely prohibited, without violating the constitutional right of free speech. Police power of State extends beyond health and morals, and comprehends the duty to protect the well-being and tranquillity of a community. The Court observed:

‘Such distractions would be dangerous to traffic at all hours….the quiet and tranquillity, so desirable for city dwellers, would be at the mercy of advocates of particular religious, social or political persuasions, we cannot believe that the right of free speech compel a Municipality, to allow such mechanical voice amplification on any of its streets. The right of free speech is guaranteed to every citizen so that he may reach the minds of willing listeners and to do so, there must be opportunity to win the attention…….Opportu nity to gain the public ear, is not by objectionably amplified sound on the streets. The preferred position of freedom of speech in asociety that cherishes liberty for all, docs noi require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others, would be harsh and arbitraryin itself.’

Justice Jackson, concurring with Frankfurter, J. said:

‘I believe that operation of mechanicalsound amplifying devices conflicts with quietenjoyment of home and park, and with safeand legitimate use of streets and marketplaces…. Freedom of speech for Kovacks.does not in my view, include freedom to usesound amplifiers to drown out natural speechof others.’

16. Kovacks v. Cooper (336 US 77) marked a sharp dissent, from the view then prevailing. The Court overturned the law in Saia v. New York (334 US 558) and held that the right to be heard, is no more important, than the right to be let alone. In Public Utilities Commission v. Pollak (343 US 451), the Court ruled that use of a radio to beam commercial broadcasts in a street-car, was not protected by the First Amendment. The Court observed:

‘……the right to be let alone is the beginning of all freedoms. The present case involves a coercion to make people listen.’

The same view was reiterated in Lehman v. City of Shaker Heights (418 US 298):

‘While petitioner clearly has a right toexpress his views to those who wish to listen,he has no right to force his message upon anaudience incapable of declining to receive it.In my view, the right of the commuters to befree from forced intrusions on their privacy,precludes the city from transforming itsvehicles of public transportation, into forumsof disemanation of ideas upon a captiveaudience.’

17. A person can decline to read a publication, or switch off a radio or television set. But, he cannot prevent the sound from a loud speaker reaching him. He could be forced to hear what, he wishes not, to hear. That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear, what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of another. No one has a right to trespass on the mind or ear of another and commit auricular or visual aggression. Limits, must be drawn for liberties, lest they turn into licence, and the antithesis of liberty in its true sense.

18. It is useful in this context, to refer to the opinion of Jackson, J. in Arther Terminiello v. City of Chicago (337 US 1). Terminiello was convicted and sentenced to a fine of 100 Dollars, for making a speech stirring the public to anger, unrest and disturbance. He challenged the conviction, as violating the protection of free speech. The Court said:

‘Underneath a little issue of Terminiello and his 100 Dollar fine, lurks some of the most far reaching constitutional questions, that can confront a people who value both liberty and order……an old proverb warns usto take heed, lest we walk into a well looking at the stars…… civil liberties imply theexistence of an organised society maintaining law and order, without which liberty would be lost…….. Terminiello’s right to speak itselfwill be in jeopardy, if Chicago withdrew its police officers, or if they should look some other way, when the crowd threatened Terminiello …… In the long run, maintenance offree speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty — is more secure, by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty, and that factions engaged in the battle are not interested permanently in either. What would it matter to Terminiello if police batter up some communities, or on the other hand, if the communities batter up some policemen?……. The choice is not betweenorder and liberty. It is between liberty with order, and anarchy without either. There is a danger that if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional bill of rights into a suicidal fact.’

19. Professions of rights, distanced from realities of life, would make liberties unreal. The liberties of some, could prove to be the end of the liberties of others. The loquacious may silence the meek. The State must protect the mute, the unorganised and inarticulate, against onslaught of enthusiasm of the vocal or the vociferous. It is no use saying hosannas to freedom, unless such freedom is real. Real they will be, only if there is an ordered society. Order to liberty, is what oxygen to life is. There is no basis to think that freedom and order are not compatible. They are complementary. Liberty will be lost in excess of anarchy, if there is no order. Regulation and suppression are not the same in purpose or result. Time it is to think, whether undisguised assertions of rights by some, havenot imperilled rights of others. If one were to recognise right to protest by blocking roads and railways, it is recognition of a right, to deny rights of the peaceful citizens. Acorns of today, will grow into oaks of tomorrow.

20. As observed by Latham C.J. in Adelaide Co. v. The Common Wealth (67 CLR 116), the Court should lake a commonsense view, and be actuated by considerations of practical necessity. A similar view finds expression in Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 : (1974 Lab IC 1380):

‘The Court true to its function, must try to reflect the gloss by balancing its ruling……denying judicial aid to undermining the substance…. A coup can be constitutionallyenvisioned by an erroneously literal interpretation…. We cannot allow a confusion ofvision_ to creep into our constitutional interpretation ……..’

Rights cannot be viewed as axioms in a book of Mathematics or applied without the risk of generating, ‘a constitutionally envisioned coup’, making a ‘suicide pact with the bill of rights’. Social dimensions, group realities of life, the great trusts of history and experiences of life, must set the tone and nuances, and modulate views. The pitfall counselled against by Hughes, C.J. must be heeded. The Chief Justice said:

‘Many of our decisions are emotional. The rational part of us supplies the reasons for supporting our predilections.’

21. That apart, freedom guaranteed is freedom of expression of ideas; not freedom of modes of expression. Freedom of press means not so much the freedom to put ink on newsprint, as it is the freedom to circulate ideas or thoughts. Where it otherwise, even a tax on newsprint may be constitutionally impermissible. It is not so, as held in Indian Express case (AIR 1986 SC 515). Likewise, freedom to express one’s views to an audience, is not freedom to stand where one likes, or in the middle of a road or to use a loud speaker. There may be matter incidental to the exercise of a right. But, they are not rights, in themselves. Not all matters peripheral to the exercise of a fundamental right, are part of that right. In Smt. Maneka Gandhi’s case AIR 1978 SC 597, the Court held that going abroad is not part of the right under Article 19. In the words of Rajagopala lyengar (J) in All India Bank Employees’ case, AIR 1962 SC 171, recognition of a series of ever expanding concentric circles in the shape of rights, concomitant to concomitant rights and so on, will lead to a grotesque situation.

22. A loud speaker is a mechanical device, and it has no mind or thought process in it. Recognition of the right of speech or expression is recognition accorded to a human faculty. A right belongs to human personality, and not to a mechanical device. One may put his faculties to reasonable uses. But, he cannot put his machines to any use he likes. He cannot use his machines to injure others. Intervention with a machine, is not intervention with, or invasion of a human faculty or right. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conceded the rights under Article 19 (though they may be useful to man to express his faculties). No more, a loud speaker. The use of a loud speaker may be incidental to the exercise of the right. But, its use is not a matter of right, or part of the right. I am in no way, not in the least way, narrowing down free speech, nor, attempting to cabin, confine and crib a cherished right, while holding that a mechanical aid is not a complement of human faculty, or its use the extension of a constitutional right. But, 1 consider that any measure of cosmetic surgery on the face of a aggressive act of aural aggression or trespass on the mind of another, will not make it resemble a right.

23. Apart from the right to be let alone, — freedom from aural aggression — Article 21 guarantees freedom from tormenting sounds. What is negatively the right to be let alone, is positively the right to be free from noise. Exposure to high noise, is a known risk and it is proved to cause bio-chemical changes in man, elevating levels of blood catecholamine, cholesterol, white cell counts and lymphocytes. Laboratory studies made by monitoring electroencephalographic (EEG) responses and changes in neurovegetative reactions during sleep, show that disturbance of sleep becomes increasingly apparent as ambient noise levels exceed about 35 db (A) Leq. Noise produces different reactions along the hypothalamohypophyseal-adrenal axis, including an increase in adenocorti-cotropic hormone (ACTH), affecting sympathetic division of the autonomic nervous system. Eye dilation, bradycardia, and increased skin conductance are proportional to the intensity of noise above 70 dB. SPL. Incidence of peptic ulcer is high among noise exposed groups. Noise causes contraction of the flexor muscles of the limbs and the spine, and is reckoned as an environmental stress that could lead to non-specific health disorders. Exposure to high noise in every day life may contribute to eventual loss of hearing (socioacusis), and this in turn can affect speech communication. Vasoconstriction or vasodilation of blood vessels also is induced by high levels of noise during acute exposures (Rose-crans et al (1966)). Complaints of nystagmus (rapid involuntary side to side movements), Vertigo (dizziness) and balance problems have also been reported due to noise exposure. ‘WHO’ criteria 12 and Indian Standards 1 — S — 4954 indicate tolerance levels. J.E. Park and K. Park Text Book of Preventive and Social Medicine’, 7th Edn. page201, also specifies tolerance limits of noise.

24. Sound levels generally caused by loud speakers transgress safe limits by a wide margin. Loud speakers have become part of political, social, religious and cultural life of this country. To allow advocates of various persuasions to commit unlimited aural aggression on unwilling listeners, would be to allow them to subjugate the right of life of unwilling listeners, to their aggressions. Protests made by sufferers like the student community or sick, generally fall on heedless ears. Very recently, the ‘Malayala Manorama’ (5-5-1992) came out with an editorial against noise pollution. The Indian Medical Association is reported to have protested against high noise output through loud speakers, pointing out the risks…………… (Malayala Manorama21-5-1992, Mathrubhumi dt. 21-5-1992). Compulsory exposure of unwilling persons to dangerous and disastrous levels of noise, would amount to a clear infringement of their constitutional guarantee of right to life under Article 21. Right to life, comprehends right to a safe environment, including safe air quality, safe from noise.

25. But, that is not the end of the matter. There are amenities available outside fundamental rights. The spirit often protects what the language does not. One may enjoy certain amenities or common law rights, independent of fundamental rights. These would include the amenity of using a loud speaker (without committing aural aggression), to the extent of reaching a willing audience. One may exercise that amenity in a hall or area reasonably required to accommodate a willing audience. There is no right to any amenity beyond this.

26. Besides, use of a loud speaker cannot be arbitrarily denied, only because a fundametal right is not involved. By reason of Article 14, the State and its agencies cannot act arbitrarily. They must adhere to fair play in action. For instance, even when a person may not have a fundamental right to, enter into a contract with the State, the State cannot act arbitrarily in the matter of awarding a contract. Likewise, in the matter of denying the use of a loud speaker, Police cannot act arbitrarily. All State action is amenable to Article 14. To quote Jackson, J. in West Virginia State Board v. Barnette (319 US 624), again:

‘There are village Hampdens and village tyrants, but none who acts under colour of law, is beyond the reach of the Constitution.’

If the authority charged with the power to regulate use of loud speakers under the Kerala Police Act, acts beyond the authority law confers upon him, his action is liable to be interdicted.

27. Back to the facts. Permission was denied to petitioner to use a loud speaker on the ground that holding of meetings with loud speakers would lead to a law and order situation, on account of the displeasure that it may cause to another group. This reasonappears to be an after-thought. At the time of granting permission initially, no such hazard was envisioned. Nothing suggests that there had been a change of circumstances, between the time permission was granted, and the time it was cancelled. Quite apart from that, an apprehension that one may interfere with a lawful act done by another, will be no reason to deny the exercise of that lawful right. If obstruction is offered unlawfully or unreasonably, the responsibility of Police is to remove it, instead of stopping someone from doing what he may legitimately do. For a fact, the hazards imagined by the Sub-Inspector of Police (2nd respondent), are unreal. By reason of interim orders made by this Court, petitioner held meetings, using loud speakers and admittedly, no law and order problem arose. In the absence of any valid ground, cancellation of the permission granted under Ext. F1 is arbitrary. While petitioner has no fundamental right to use a loud speaker, he will be free to avail of the amenity of using a loud speaker in a reasonable manner. Second respondent Sub-Inspector of Police, will permit petitioner to hold meetings with the use of loud speakers of a box type, for purposes of holding meetings as indicated in the writ petition. But, the output from the loud speaker, shall not exceed the range, necessary to reach a willing audience, confined in a reasonable area. If it exceeds such limits, Police will be free to stop the use of loud speakers.

The writ petition is disposed of as above. No costs.

I express appreciation of the help rendered by Shri S.V. Balakrishna Iyer as Amicus Curiae.

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M.C. MEHTA ETC. ETC. …PETITIONER
Vs.
UNION OF INDIA AND OTHERS ETC. ETC. …RESPONDENT

DATE OF JUDGMENT15/05/1992

BENCH: MISRA, RANGNATH (CJ) KANIA, M.H. KULDIP SINGH (J)

CITATION:
1991 SCR (1) 866 1991 SCC (2) 353
JT 1991 (1) 620 1991 SCALE (1)427

ACT:

Constitution of India, 1950:

Article 32-Environmental and air pollution-Control of- Operation of mechanical crushers-Stoppage of-Allotment of sites in the newly set-up crushing zone-Directions issued.

HELD : 1. Environmental changes are the inevitable consequence of industrial development in our country, but, at the same time the quality of environment cannot be permitted to be damaged by polluting the Air, Water and Land to such an extent that it becomes a health-hazard for the residents of the area. The authorities concerned in the Union Territories of Delhi have been wholly re-miss in the performance of their statutory duties and have failed to protect the environment and control air-pollution in the Union Territory of Delhi. Utter disregard to environment has placed Delhi in unenviable position of being the world’s third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation.

Needless to say that every citizen has a right to fresh air and to live in pollution-free environment. [359 F-H, 360 A]

2. It is, therefore, directed that (a) the mechanical stone crushers 358 established/operating in Lal Kuan, Anand Parbat, Rajokri, Tughlakabad and in any other area of Union territory of Delhi and also in Suraj Kund, Lakhanpur, Lakkarpur, Kattan, Gurukul, Badkhal, Pallinangla, Saraikhaja, Anangpur and Ballabgarh areas of Haryana should stop operating/functioning with effect from August 15, 1992 and no stone crusher will operate in the above said areas from August 15, 1992 onward; (b) the stone crushers in the Union territory of Delhi/Faridabad-Ballabgarh Complex which do not have valid licences from the Authorities under the Delhi Municipal Corporation Act, 1957/Faridabad Complex Administration (Regulations and Development) Act, 1971 or from any other authority which the law requires, and the stone crushers, in respect of which closure- orders/directions have been issued by the Central Pollution Control Board under Section 31A of Air (Prevention and Control of Pollution) Act, 1981 or by the Central Government under Section 5 of the Environment (Protection Act, 1956, should stop functioning/operating with immediate effect; (c) the authorities concerned should ensure compliance of these order; and (d) the authorities concerned of the State of Haryana should demarcate, and allot the sites to the aforesaid stone crushers in the newly approved ‘crushing zone’ at village Pali – set up with the object of rehabilitating the existing stone-crushers who are being stopped from functioning as a result of the orders of this Court – by draw of lots or by any other fair and equitable method, and also to provide additional land in or around the “crushing zone” if there is not sufficient land in the said zone to accommodate all the stone crushers affected by this Court’s orders within a period of six months. A progress report in this respect should be sent to the Registry of this Court before July 31, 1992. [360 B-C, E-H, 361 A-G]

3. Some Writ Petitions, which were filled by the owners/proprietors of stone-crushers in the Delhi High Court and which have been directed to be transferred to this Court are dismissed. [360 E]

ORIGINAL JURISDICTION : Writ Petition (C) No.4677 of 1985.

(Under Article 32 of the Constitution of India).

WITH
T.C.(C) No. 75-89/91 W.P.(C) No.521/87 T.P.(C) No.245- 50/91.

M.C. Mehta Petitioner-in-person.

359 Satish Chander, Hardev Singh, P.N. Duda, B.R.L.

Iyengar, P.P. Rao, V.C. Mahajan, S.S. Chadha, R. Mohan, Ms.

Rekha Pandey, K.B. Rohtagi, S.K. Dhingra, Shashank Shekhar, Vishnu Mathur, Vijay Pandita, Randhir Jain, N.S. Bisht, Ms.

Seema Midha, K.R.R. Pillai, R.S. Suri, R.B. Misra, C.V.

Subba Rao, Kailash Vasdev, V.B. Saharya, Ranjit Kumar, R.

Sridharan, Ms. Indu Malhotra, P.K. Jain, I.S. Goyal, Dr.

A.M. Singhvi, R. Sasiprabhu, Ms. Anil Katiyar and B.Y.

Kulkarni for the appearing parties.

The following Order of the Court was delivered:

We reserved judgment in these matters on April 24, 1992. We heard learned counsel for the parties at considerable length for several days. We have been taken through the provisions of Delhi Development Act 1957, Master Plan for Delhi published in the Gazette of India dated August 1, 1990, Delhi Development Authority (Zoning) Regulations, 1983, Delhi Municipal Corporation Act 1957, Faridabad Complex Administration (Regulations and Development) Act, 1971, The Development Plan for the Faridabad-Ballabgarh Controlled Areas published in the Haryana Government Gazette dated December 17, 1991, Air (Prevention and Control of Pollution) Act 1981, The Environment (Protection Act) 1986, National Health Policy, 1985, Ancient Monuments Act, 1958, National Capital Region Planning Board Act, 1985 and various other documents including reports of the Experts on Air Pollution and environments. The parties have submitted detailed written arguments which we have taken into consideration. We have given our thoughful consideration to the various arguments advanced by the learned counsel for the parties.

We are conscious that environmental changes are the inevitable consequence of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the Air, Water and Land to such an extent that it becomes a health- hazard for the residents of the area. We are constrained to record that Delhi Development Authority, Municipal Corporation of Delhi, Central Pollution Control Board and Delhi Pollution Control Committee have been wholly re-miss in the performance of their statutory duties and have failed to protect the environments and control air-pollution in the Union Territory of Delhi. Utter disregard to environment has placed Delhi in an unenviable position of being the world’s third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation.

Needless 360 to say that every citizen has a right to fresh air and to live in pollution-free environments.

For the reasons to be recorded and pronounced at a later stage we order and direct as under:- (1) The mechanical stone crushers established/operating in Lal Kuan, Anand Parbat, Rajokri, Tughlakabad and in any other area of Union territory of Delhi shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the Union territory of Delhi from August 15, 1992 onward.

(2) The mechanical stone crushers established/operating in Suraj Kund, Lakhanpur, Lakkarpur, Kattan, Gurukul, Badkhal, Pallinangla, Saraikhaja, Anangpur and Ballabgarh areas of Haryana shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the above said area form August 15, 1992 onward.

(3) The writ petitions filed by the owners/proprietors of stone crushers in Delhi High Court which have been transferred to this Court shall stand dismissed with no order as to costs.

(4) The Stone crushers in the Union territory of Delhi/Faridabad-Ballabgarh Complex which do not have valid licences from the Authorities under the Delhi Municipal Corporation Act 1957/Faridabad Complex Administration (Regulations and Development) Act 1971 or from any other authority which the law requires, shall stop functioning and operating with immediate effect.

(5) The stone crushers, in respect of which closure-orders/directions have been issued by the Central Pollution Control Board under Section 31A of Air (Prevention and Control of Pollution) Act, 1981 or by the Central Government under Section 5 of the Environment (Protection) Act 1956, shall stop functioning/operation with immediate effect.

(6) The Delhi Development Authority through its Vice Chairman and Commissioner (Planning), the Delhi Municipal Cor- 361 poration through its Commissioner, Faridabad Complex Administration through its Chief Administrator, Director Town and Country Planning Department, Haryana Deputy Commissioner, Faridabad, Haryana Urban Development Authority through its Commissioner/Chief Executive, Central Pollution Control Board through its Member Secretary, Central Government under the Environment (Protection Act) 1986 and the Commissioner Police Delhi are directed to ensure the compliance of our above orders.

(7) The officers of the Town and Country Planning Department, Government of Haryana, who were present in Court, informed us that a new “crushing zone” has been approved at village Pali and the lay out Plan has been prepared and is in the process of demarcation by the Haryana Urban Development Authority. The said “crushing zone” has been set up with the object of rehabilitating the existing stone crushers who are being stopped from functioning as a result of our orders. We, therefore, direct the State of Haryana through the Director, Town and Country Planning Department, Haryana, Chandigarh, the Chief Administrator, Faridabad Complex Administration, the Deputy Commissioner, Faridabad and the Haryana Urban Development Authority to demarcate, and allot the sites to the stone crushers mentioned in paras 1,2,4 and 5 above by draw of lots or by any other fair and equitable method. We further direct these authorities to provide additional land in or around the “crushing zone” if there is not sufficient land in the said zone to accommodate all the stone crushers affected by our orders. This exercise shall be completed and plots offered to the stone crushers within a period of six months from today.

The Director, Town and Country Planning Department, Haryana, Chandigarh is further directed to send a progress report to the Registry of this Court before July 31, 1992 in this respect.

(8) We make it clear that our orders contained in paras 1,2,4 and 5 above are in absolute terms and are not dependent or consequential to our directions in para 7 above.

362 We are not finally disposing of the writ petition at this stage and we keep it pending for the purposes of monitoring the above directions. To be listed on August 5, 1992.

The copies of this order be sent to all the Authorities mentioned in paras 6 and 7 above within two days.

N.P.V. Reasons to follow.

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IN THE SUPREME COURT OF INDIA

STATE OF MAHARASHTRA ETC. ETC. …PETITIONER
Vs.
SUKHDEO SINGH AND ANR. ETC. ETC. ….RESPONDENT

DATE OF JUDGMENT 15/07/1992

BENCH: AHMADI, A.M. (J) RAMASWAMY, K.

CITATION:
1992 AIR 2100 1992 SCR (3) 480
1992 SCC (3) 700 JT 1992 (4) 73
1992 SCALE (2)9

ACT

Penal Code, 1860-Sections 302, 307 and 34-Prosecution for murder of General Vaidya-Trial under TADA-Conviction and death sentence by Designated Court-Validity of.

Penal Code, 1860-Sections 120B, 302, 307, 465, 468, 471 and 212 and Sections 3 and 4 of the Terrorist and Disruptive Activities Act, 1985 and Section 10 of the Passport Act- Charges under against the accused-Conviction and death sentence of accused 1 and 5 u/ss. 302, 307, 34, IPC and acquittal of other accused by Designated Court-Appreciation of evidence by Supreme Court-Findings of Designated Court approved.

Evidence Act, 1872-Section 9-Test Identification parade-After long lapse of time, first time in Court- Evidential value of.

Evidence Act, 1872-Sections 3, 73-Appreciation of evidence-Evidence regarding identity of author of document- Expert opinion-Reliability of-Comparing documents by Court- Effect of-Identification of accused-Evidential value of.

Code of Criminal Procedure, 1973-Section 311-Statements recorded under-Evidential value of-Plea of guilt tantamount to admission of all facts constituting offence-Court’s duty.

Terrorist and Disruptive Activities Act, 1985-Sections 3(2)(i) or (ii) and 3(3) read with sections 120B, 465, 468,471, 419, 302, 307, 34, IPC-Charged under-Procedure to be adopted.

Code of Criminal Procedure, 1973-Section 235(2)- Conviction and death sentence pronounced on same day- Legality of.

HELD : 1.01 No weight can be attached to such identification more so when no satisfactory explanation is forthcoming for the investigation officer’s failure to promptly hold a test identification parade. [501E] 1.02. The direct evidence, if at all, regarding the identity of the persons 484 who moved about in different assumed names is either wholly wanting or is of such a weak nature that it would be hazardous to place reliance thereon without proper corroboration. The direct evidence regarding identity of the culprits comprises of (i) identification for the first time after a lapse of considerable time in Court or (ii) identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused persons had since changed their appearances.

[506C-E] 1.03 Test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the court ordinarily seeks to act on it. In the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance. [506F] Kanan & Ors. v. State of Kerala, [1979] 3 SCC 319, relied on.

1.04. Before a Court can act on the opinion evidence of a handwriting expert two things must be proved beyond any manner of doubt, namely, (i) the genuineness of the specimen/admitted handwriting of the concerned accused and (ii) the handwriting expert is a competent, reliable and dependable witness whose evidence inspires confidence.

[508B] 1.05 Evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis and (iii) by the court comparing the disputed document with the admitted one. [509F] 1.06 Since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over 485 a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. [509H-510A] 1.07 When one comes across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive.

Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence.

True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even or prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. Before a court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory.

It is for this reason that the courts are wary to act, solely on the evidence of a handwriting expert; that, however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer the court will not act on the expert’s evidence. In the End it all depends on the character of the evidence of the expert and the facts and circumstances of each case. [510B-G] 1.08 A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act 486 and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the Science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger-prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case on its own merits what weight it should attach to the opinion of the expert. [513A-C] Ram Narain v. State of U.P., [1973] INSC 75; [1973] 2 SCC 86; Bhagwan Kaur v. Maharaj Krishan Sharma, [1972] INSC 261; [1973] 4 SCC 46 and Murari Lal v. State of M.P., [1979] INSC 247; [1980] 1 SCC 704, referred to.

1.09 Although section 73 specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. [514F] 1.10 It is not advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused Nos. 1 and 2. [514G] 1.11 Except for a couple of minor contradictions there is nothing brought out in his cross-examination to doubt PW 16’s (Security man) testimony regarding identification of accused No.1 as the person who fired the shots at General Vaidya. The presence of this witness at the time of occurrence cannot and indeed was not doubted. So also it cannot be denied that he had an opportunity to identify the assailant. There is no serious infirmity in his evidence which would cast a doubt as regards his identification of accused No.1 [517C] 1.12 PW 14, the cyclist, did not notice an autorickshaw but in court’s 487 view that cannot cast any doubt on the credibility of PW 16.

His attention was rivetted at the car and the motor cycle after he heard the shots and there was no need for him to notice the autorickshaw. [518H] 2.01 Section 313 of the code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words `shall question him’ clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. [526H-527B] 2.02 The stage of examination of the accused under clause (b) of sub-section (1) of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under section 313, the judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The trial judge is not expected before he examines the accused under section 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under section 314 of the Code. [527C-E] 2.03 It is only where the court finds that no incriminating materials has surfaced that the accused may not be examined under section 313 of the Code. If there is material against the accused he must be examined. [527F] 2.04 In the instant case it is not correct to say that no incriminating material has surfaced against the accused, particularly accused No. 5, and hence the trial judge was not justified in examining the accused under section 313 of the Code. [527G] 488 2.05 Since no oath is administered to the accused, the statements made by the accused will not be evidence Stricto sensu. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. [527H] 2.06 The answers given by the accused in response to his examination under section 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. [528C] State of Maharashtra v. R.S. Chowdhari, [1967] INSC 116; [1967] 3 SCR 708; Hate Singh v. State of Madhya Bharat, 1955 Crl. L.J.

1933 and Narain Singh v. State of Punjab, [1963] 3 SCR 678, relied on.

Jit Bahadur Chetri v. State of Arunachal Pradesh, 1977 Crl. L.J. 1833 and Asokan v. State of Kerala, 1982 Crl. L.J.

173, distinguished.

2.07 The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits fact i.e.

ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a date for the examination of the witnesses, i.e. the trial of the case. There is nothing in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded under section 313 of the Code. [530B-D] 2.08 In the instant case, besides giving written confessional statements, both accused No. 1 and accused No.

5 admitted to have been involved in the commission of murder of General Vaidya. It is pointed out that both the accused have unmistakably, unequivocally and without any 489 reservation whatsoever admitted the fact that they were responsible for the murder of General Vaidya.[530E] 2.09 Accused No. 1 did not name accused No. 5 as the driver of the motor cycle, perhaps he desired to keep him out, but accused No. 5 has himself admitted that he was driving the motor cycle with accused No.1 on the pillion seat and to facilitate the crime he had brought the motor cycle in line with the Maruti car so that accused No.1 may have an opportunity of firing at his victim from close quarters. There is, therefore, no doubt whatsoever that both accused No.1 and accused No. 5 were acting in concert, they had a common intention to kill General Vaidya and in furtherance of that intention accused No.1 fired the fatal shots.[530F-G] 2.09 The trial Judge was justified in holding that accused No.1 was guilty under section 302 and accused No.5 was guilty under section 302/34, IPC.[530H] 3.01 In the instant case, the accused were tried under the section 3(2)(i) or (ii) and 3(3) provisions of TADA Act and the Rules made thereunder along with the offences under sections 120B, 465, 468, 471, 419, 302 and 307, IPC. They were also charged for the commission of the aforesaid offences with the aid of section 34, IPC. Under section 13(4) the procedure which the Designated Court must follow is the procedure prescribed in the Code for the trial before a Court of Session. [531H-532C] 3.02 The Trial Judge took the view that since the murder of General Vaidya was also on account of his involvement in the Blue Star Operation his case stood more or less on the same footing and hence fell within `the rarest of a rare’ category. This line of reasoning adopted by the Trial Judge is unassailable. The accused persons had no remorse or repentence, in fact they felt proud of having killed General Vaidya in execution of their plan.

[532H-533B] Kehar Singh & Ors. v. State (Delhi Administration), [1988] INSC 203; [1988] 3 SCC 609, relied on.

4.01 The choice of sentence had to be made after giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc. before the Court, for otherwise the court’s decision may be vulnerable. [533D] 490 Allaudin Mian v. State of Bihar, [1989] INSC 127; [1989] 3 SCC 5;

Milkiat Singh v. State of Punjab, JT (1991) 2 SC 190 (Paragraph 18); Jumman Khan v. State of U.P., [1990] Suppl.

3 SCR 398 and Kehar Singh & Ors., v. State, [1988] INSC 203; [1988] 3 SCC 609, referred to.

4.02. Having regard to the well planned manner in which they executed their resolve to kill General Vaidya they were aware that there was every likelihood of the Court imposing the extreme penalty and they would have, if they so desired, placed material in their written statements or would have requested the Court for time when their statements under section 313 of the Code were recorded, if they desired to pray for a lesser sentence. Their resolve not to do so is reflected in the fact that they have not chosen to file and appeal against their convictions by the Designated Court.

In the present case the requirements of section 235(2) of the Code have been satisfied in letter an spirit and no prejudice is shown to have occurred to the accused. [535C] 4.03 The conviction of accused No.1 under section 302 and 307, IPC and accused No. 5 under sections 302 and 307, IPC, both read with section 34, IPC and the sentence of death awarded to both of them is confirmed.

[535E]

CRIMINAL APPELLATE JURISDICTION : Death Reference Case No. 1 of 1989.

WITH
Criminal Appeal No. 17 of 1990.

From the Judgment and Order dated 21.10.89 of the Pune Designated Court in Terrorist Sessions Case No. 2 of 1987.

Altaf Ahmed, Additional Solicitor General, V.V.Vaze, S.B. Takawane, S.M.Jadhav, A.S.Bhasme and Ms. A.Subhashini for the Complainant/Appellant.

R.S.Sodhi, Harshad Nimbalka, P.G. Sawarkar and I.S.

Goel for the Accused/Respondent.

The Judgment of the Court was delivered by AHMADI, J. General A.S.Vaidya, the then chief of the Armed 491 Forces was, on the orders of the then Prime Minister Smt.

Indira Gandhi, assigned the difficult and delicate task of flushing out militants who had taken refuge in the Golden Temple at Amritsar. during this operation, known as the Blue Star Operation, some militants were killed and a part of the Golden Temple known as Harminder Saheb was damaged.

Both the then Prime Minister Smt. Indira Gandhi and General Vaidya had, therefore, incurred the wrath of the Punjab militants for what they called the desecration of the Golden Temple. They, therefore, vowed to avenge the deaths of their colleagues and punish all those who were responsible for the damage to the Golden Temple. After the assassination of Smt. Gandhi on 31st October, 1984, it is the prosecution case, they waited for General Vaidya to retire on 31st January, 1986 so that the security cover which would then stand reduced may not be difficult to penetrate. After his retirement General Vaidya decided to settled down in Pune in the State of Maharashtra.

After his retirement on 31st January, 1986, General Vaidya and his wife Bhanumati left Delhi for Pune. As their bungalow at Pune was still under construction, they shared bungalow No.20 at Queens Garden, Pune, occupied by Major General Y.K. Yadav. General Vaidya owned a Maruti Car bearing Registration No. DIB 1437 which reached Pune on the next day i.e. 1st February, 1986. Between 4th and 16th February, 1986 General Vaidya and his wife went to Goa for a brief holiday. They returned to Pune on 16th February, 1986. They continued to reside in the bungalow occupied by Major General Y.K. Yadav. General Vaidya was required to be hospitalised from 24th March to 7th April, 1986 as he was suspected to be suffering from jaundice. During his stay in bungalow No. 20, Queens Garden, two Police Sub-Inspectors were available on security duty, one for himself and another for Major General Yadav but after his discharge from the hospital and on their shifting to their bungalow at 47/3, Koregaon Park with effect from 26th May, 1986 only one armed Head Constable, Ram Chandra Kshirsagar, was on security duty with him. Although the name plate of General Vaidya was displayed on one of the two posts of the entrance gate to bungalow No. 20 at Queens Garden, no such name plate was displayed at bungalow No. 47/3, Koregaon Park.

On the morning of 10th August, 1986, General Vaidya and his wife left their bungalow with the securityman Ramchandra Kshirsagar for shopping in their Maruti Car No. DIB 1437 at about 10.00 a.m. The car was being driven by General Vaidya with his wife sitting in the front seat to his 492 left and the securityman sitting in the rear seat just behind her. After the shopping spree was completed at about 11.30 a.m. and while they were returning to their residence via Rajendrasinghji Road, the car had to take a turn to the right at the square in front of 18 Queens Garden at the intersection of Rajendrasinghji and Abhimanyu roads. To negotiate this turn General Vaidya who was driving the vehicle slowed down. At that point of time a red Ind-Suzuki motor cycle came paralled to the car on the side of General Vaidya and the person occupying the pillion seat of the motor cycle fired three shots from close range at the head of General Vaidya. Before his wife and securityman could realise what had happened, General Vaidya slumped on the shoulder of his wife Bhanumati. The motor cyclists drove away and could not be located. An auto-rickshaw passed by.

As General Vaidya lost control over the vehicle the car surged towards a cyclist Digamber Gaikwad. The latter, in order to save himself, jumped off the cycle. The cycle came under the Maruti Car and as a result the car stopped at a short distance in front of a compound wall. Immediately thereafter the securityman stepped out of the vehicle and went in search of some bigger vehicle to carry General Vaidya to the hospital. A Green Matador Van which was passing by was fetched by the securityman in which the injured General Vaidya was carried to the Command Hospital where he was declared dead.

The securityman immediately informed the L.I.B. Office about the incident which information was received by Police Inspector Garad. On receipt of the information the Commissioner of Police and his Deputy arrived at the hospital and questioned the securityman who narrated the incident to them. Thereupon the securityman was asked to go to the Control Room. On reaching the Control Room he received a message from Inspector Mohite requiring him to return to the place of the incident where his formal complaint was recorded by Inspector Mohite. A Panchnama of the scene of occurrence was drawn up by Inspector Mohite in the presence of witnesses and the empty cartridges and other articles were recovered therefrom.

As stated earlier, the assailants of General Vaidya had made good their escape from the scene of occurrence after the incident. On 7th September, 1986, two persons riding a red Ind-Suzuki motor cycle collided with a truck. They were thrown off the motor cycle and sustained injuries. A bag containing arms and ammunition was also thrown off but they 493 hurriedly collected the spilled articles. When members of the public who had collected there immediately after the accident went to assist them they behaved in an abrasive manner and one of them, later identified as accused No. 1 Sukhdev Sing @ Sukha, raised his revolver and threatened to shoot, which raised the suspicion of the crown prompting one Narayan Bajarang Pawar to report the matter to Inspector A.I. Pathan of Pimpri Police Station. Inspector Pathan swung it to action and along with the informant and his staff members, including Sub-Inspector Nimbalkar, went in search of the two motor cyclists. Inspector Pathan went to the pimpri Railway Police Station and asked P.S.I.

M.K.Kadam of that Police Station to immediately go to the place of the accident and guard the same until further orders. Inspector Pathan, on return, noticed two persons passing by Vishal Talkies and as one of them was limping his suspicion was aroused whereupon he drove his vehicle near them and pounced on one of them, later identified as accused No.2 Nirmal Singh @ Nima. Accused No. 1 Sukha tried to run away but P.S.I. Nimbalkar gave a chase and caught hold of him and brought him to Inspector Pathan. Before he was overpowered, it is the prosecution case, that accused No.1 Sukha unsuccessfully tried to fire a shot at P.S.I.

Nimbalkar to make good his escape. It may here be mentioned that both accused No.1 and accused No.2 were charge-sheeted under section 307, IPC, for that incident and were ultimately convicted and sentenced.

After both accused No.1 and accused No.2 were apprehended by Inspector Pathan and P.S.I. Nimbalkar they were searched and weapons like pistol and revolver along with live cartridges were recovered from them. They were also carrying certain papers concerning the red Ind-Suzuki motor cycle and they too were attached. As a seizable crowd had gathered on the road Inspector Pathan thought it wise to cause the seizure memorandum to be recorded at the Pimpri Police Station. The prosecution case is that while the two persons were being taken in a jeep to the Pimpri Police Station they raised slogans of “Khalistan Zindabad” and proudly proclaimed that they were the assailants of General Vaidya. After reaching the Police Station all the articles which were found in the possession of these two persons were attached under a seizure memorandum. Inspector Pathan suspected that the pistol which was found from them may have been the weapon used for killing General Vaidya and hence he sent the weapons as well as the cartridges attached from the scene of occurrence to the Ballistic Expert who reported that the cartridges found from the place 494 where General Vaidya was shot were fired from the pistol which was recovered from the possession of these two persons after their arrest on 7th September, 1986. In the course of investigation it came to light that besides accused Nos.1 and 2 certain other persons described as terrorists, namely, accused No.3 Yadvinder Singh, accused No.4 Avtar Singh, accused No.5 Harjinder Singh and absconding accused Sukhminder Singh @ Sukhi, Daljit Singh @ Bittoo @ Sanjeev Gupta, Jasvinder Kaur, and Baljinder Singh @ Raju were involved in the conspiracy allegedly hatched for assasinating General Vaidya immediately after his retirement and on depletion of the security cover. Accused Nos.1 and 2 and others named hereinabove were charge sheeted on 14th August, 1987 under sections 120B, 302, 307, 465, 468, 471 and 212, IPC sections 3 and 4 of Terrorist and Disruptive Activities Act, 1985, hereinafter called `TADA’, and section 10 of the Passport Act.

In regard to the charge of conspiracy, forgery, etc.

the prosecution case is that absconding accused Sukhi hired a flat sometime in October-November 1985 at 7, Antop Hill, Bombay. Thereafter he came to Pune and stayed in Dreamland Hotel in the assumed name of Rakesh Sharma. On January 26, 1986 he shifted to and registered himself as Ravindra Sharma in Hotel Gulmohar on the pretext that he was visiting the city for business purposes. He was accompanied by another person. They gave a false address that they were residents of 307, Om Apartments, Bombay. While in Pune an advertisement appeared in the local daily Maharashtra Herald offering a flat No. G-21, Salunke Vihar, Pune on hire. This flat was in the possession of Major A.K.Madan and he was desirous of letting it out to repay the instalments of the loan taken for meeting the construction cost of the said flat. He had entrusted this work of finding a suitable tenant to one V.R.Hallur and had given a Power of Attorney to him for that purpose. The said V.R.Hallur approached the Estate Agents Bhavar Sanghavi and disclosed that he was desirous of letting out the flat on a rent ranging between Rs. 1200 and Rs. 1500 with a deposit ranging between Rs.

12,000 and Rs. 15,000. The Estate Agents published an advertisement in the local newspaper Maharashtra Herald, in consequence whereof one person identifying himself as Ravindra Sharma approached the Estate Agent and finalised the deal by paying Rs. 15,000 in cash as deposit and agreeing to pay rent at the rate of Rs. 1500 per month and went on to pay advance rent for three months i.e. Rs. 4500 to the said V.R. Hallur. The deal was closed on 30th January, 1986. It is the prosecution case that this flat was 495 fired as the conspirators needed an operational based in Pune to facilitate the killing of General Vaidya.

The prosecution case further is that on 3rd May, 1986 the 7, Antop Hill flat at Bombay was raided and besides arms and ammunition an English novel Tripple was found on the cover page whereof someone had scribbled the number of General Vaidya’s maruti Car. Clothes of different sizes were also found indicating the presence of more than one person. On 8th May, 1986 an Ind-Suzuki motor cycle bearing No. MFK 7548 was purchased in the name of Sanjiv Gupta from its owner Suresh Shah through R.V. Antapurkar, a salesman.

Accused No.1 is reported to have lived in Hotel Ashirvad, Pune on 9th June, 1986. Accused No.1 lived in Hotel Amir in Room No. 517 on 11th June, 1986, in Hotel Jawahar in Room No. 206 on the next day and in Hotel Mayur in Room No. 702 on 13th June, 1986. On the same day he is shown to have stayed in Hotel Commando, Bandra, Bombay in Room in 402.

The Union Bank robbery took place on that day. The motor cycle was sent for servicing on Ist July, 1986. Sukhi left for U.S.A. on a forged passport on 14th July, 1986 and was arrested there. According to the prosecution they lived in different hotels in different assumed names for drawing up a plan to kill General Vaidya.

Now we enter the crucial stage. According to the Prosecution, in pursuance of the conspiracy hatched to kill General Vaidya, Accused Nos.1, 2 and 5 left Ambala cantonment for Doorg on 3rd August, 1986 by 138 UP Chhatisgadh Express. The form for reservation of sleeper berths dated 29th July, 1986, Exh. 700, is alleged to have been filled by Accused No.1, of course in an assumed name.

They reached Doorg on 5th August, 1986 and left for Bombay on the next day by Gitanjali Express. From Bombay the prosecution alleges that they went to Pune. Prosecution has also tendered evidence to show that on 9th August, 1986, accused Nos.1 and 5 made inquiries concerning the whereabouts of a retired military officer in the neighbourhood of General Vaidya. After accomplishing the task accused No.1 returned to Bombay by 7.30 p.m. and stayed in Hotel Neelkanth, Khar, in the assumed name of Pradeep Kumar. On 6th September, 1986, accused Nos.1 and 2 are stated to have stayed in Hotel Dalmond, Bandra, Bombay, in the assumed names of Ravi Gupta and Sandeep Kumar before their arrest at Pune on 7th September, 1986 by Inspector Pathan. This, in brief, are the broad outlines of the alleged conspiracy perpetrated by the accused persons and the absconding accused to kill 496 General Vaidya. To prove these circumstances a large number of documents and ocular testimony of several witnesses came to be tendered by the prosecution before the Designated Court.

The investigation revealed that on the date of the incident the motor cycle was driven by accused No.5 Harjinder singh @ Jinda with accused No.1 Sukhdev Singh @ Sukha in the pillion seat. The shots were fired by accused No.1 from the pillion seat at close range after accused No.5 had brought the motor cycle in line with the front window of the driver’s seat of the Maruti Car. The window pane was lowered and General Vaidya was at the steering wheel with his right elbow resting on the window and the hand holding the top of the car. As stated earlier, three shots were fired in quick succession and before Bhanumati and the securityman could realise what had happened the motor cyclists made good their escape. Had it not been for the accident which took place on 7th September, 1986 in which the said motor cycle was involved the police would have been groping in the dark to nab the perpetrators of the crime.

Accused Nos.2, 3 and 4 were put up for trial as co- conspirators. The other co-conspirators could not be placed for trial as they could not be traced since they were absconding. All the five accused denied the charge and claimed to be tried. However, after the charge was framed accused No.1 Sukhvinder Singh @ Sukha expressed his desire on 19th September, 1988 to make a statement before the Court admitting to have killed General Vaidya. He made the statement in open Court and the learned Presiding Judge of the the Designated Court, Pune gave him eight days’time to reflect and make a detailed written statement thereafter, if he so desired. On 26th September, 1988 when the accused were once again arraigned before the Designated Court accused No.1 submitted a written statement, Exh. 60-A, admitting to have fired four bullets at General Vaidya and to have killed him. He also stated in that statement that he had accidentally injured Bhanumati Vaidya although he did not intend to do so. According to him since she was sitting close to General Vaidya one of the bullets strayed and caused injury to her. So far as accused No.5 Harjinder Singh @ Jinda is concerned, he, in his statement recorded under section 313 of the Criminal Procedure Code, 1973, admitted that he was the person driving the black (not red) Indu-Suzuki motor cycle with accused No.1 in the pillion seat. It was he who brought his motor cycle with accused No.1 in the pillion seat. It was he who brought his motor cycle in line with the Maruti Car driven by General Vaidya to facilitate accused No.1 Sukha to shoot the General. It was only thereafter that accused No.1 fired the bullets which caused the death of 497 General Vaidya.

The learned Presiding Judge of the Designated Court, Pune, framed the points for determination and came to the conclusion that the prosecution had failed to prove beyond reasonable doubt that the accused before him and the absconding accused had entered into a criminal conspiracy to commit the murder of General Vaidya. He, however, came to the conclusion that accused No.5 was driving the motor cycle with accused No.1 on the pillion seat and it was the latter who fired the shots from close range killing General Vaidya and injuring his wife who was seated next to him. He came to the conclusion that the crime in question was committed in furtherance of the common intention of accused No.1 and accused No.5 to cause the murder of General Vaidya. He also came to the conclusion that the said two accused persons were guilty of attempt to commit the murder of Bhanumati in furtherance of their common intention. After a detailed and elaborate judgment running into over 300 typed pages, the learned judge of the Designated Court, Pune, convicted accused No.1 under sections 302 and 307, IPC for the murder of General Vaidya and for attempting to take the life of his wife Bhanumati. He convicted accused No.5 under section 302 and section 307, both read with section 34, IPC. He sentenced both accused No.1 and accused No.5 to death subject to confirmation of sentence by this Court. For the offence under section 307 he sentenced both accused No.1 and accused No. 5 to rigorous imprisonment for 10 years. Both the substantive sentences were ordered to run concurrently.

He acquitted both accused No.1 and accused No.5 of all the other charges levelled against them. So far as accused Nos.2, 3 and 4 are concerned he acquitted them of all the charges levelled against them and directed that they be set at liberty at once.

The facts of which we have given a brief resume make it crystal clear that broadly speaking the prosecution case has two elements, the first relating to the charge of criminal conspiracy and the various criminal acts done in furtherance thereof and the second relating to the actual murder of General Vaidya. The prosecution has also invoked sections 3 and 4 of TADA.

Now according to the prosecution as soon as it became known to the militant that General Vaidya planned to settle down at Pune after his retirement from Army service, wheels began to move to kill him as soon 498 as the security cover available to him was reduced. The prosecution tendered evidence, both oral and documentary, to show that the conspiracy was hatched between 23rd January 1986 and 3rd May, 1986. The first step taken in this direction was to hire a flat in Block No. G-21, Salunke Vihar, Pune, to create an operational base to work out and implement the alleged criminal conspiracy. This flat was hired by one Ravindra Sharma whom the prosecution identifies as absconding accused Sukhi. Now according to the prosecution after acquiring this base, Sukhi left the country on 14th July, 1986 and did not participate further in the execution of the alleged conspiracy. Accused No.2 Nirmal Singh became privy to the conspiracy later on. To prove this part of the prosecution case evidence has been tendered to show that two persons Raj Kumar Sharma and Rakesh Sharma came and stayed in Hotel Dreamland, Pune, from 23rd to 26th January, 1986 and contacted various estate agents on telephone, including PW 20 B.D. Sanghvi, partner of M/s. Estate Corporation, Pune, with a view to hiring a flat in Pune. The absconding accused Sukhi, it is contended, had stayed in that hotel under assumed name of Rakesh Sharma. PW 3 Rajender Tulsi Pillai has been examined to show that thereafter the said accused Sukhi and his companion shifted to Hotel Gulmohar on the 26th at about 2.20 p.m. and stayed there till 10.00 a.m. of the 29th.

Therefore, according to the prosecution Rakesh Sharma and Ravinder Sharma were one and the same person and the evidence of the handwriting expert PW 120 M.K. Kanbar establishes that the said person was none other than the absconding accused Sukhi. The entries identified as Q.3 and Q.4 from the register of Dreamland Hotel and Q.5 and Q.6 from the register of Gulmohar Hotel are, in the opinion of PW 120, to be of Sukhi. It is indeed true that while discussing this part of the prosecution evidence the learned trial judge has committed certain factual errors and has wrongly read the evidence as if PW 120 had opined that the said entries were made by accused No.1 Sukha. That is probably on account of similarity of names; he seems to have substituted Sukha for Sukhi. We have, however corrected this error while appreciating the prosecution evidence.

But is must be remembered that because Sukhi had fled from the Country he could not be produced for identification by the hotel staff. No one has, therefore, identified him as Rakesh Sharma or Ravinder Sharma. The question of identity, therefore, rests solely on the evidence of the handwriting expert PW 120.

Then we come to the evidence of PW 20 B.D.Sanghvi and PW 22 G.H.Bhagchandani who figured in the transaction concerning the letting 499 out of the G-21, Salunke Vihar flat at Pune, to one Ravinder Sharma. According to the prosecution this Ravinder Sharma had met PW 20 and it was PW 22 who had shown the flat to him. Both these witnesses had, therefore, an occasion to see Ravinder Sharma from close quarters. It was in their presence that the said Ravinder Sharma had signed the agreement to lease on 27th January, 1986. PW 104 V.R.Hallur, the Power of Attorney of Major Madan and PW 105 R.J.Kulkarni who has contacted PW 20 were also concerned with the said deal. The evidence of PW 65 D.B.Bhagve reveals that one Ravinder Sharma had purchased a bank draft of Rs. 15,000 from the Bank of Baroda, Pune, on 25th January, 1986 in the name of Neelam Madan. The lease documents are at Exh. 598 and 599. From the evidence of the aforestated witnesses it is established that a person who gave his name as Ravinder Sharma had contacted them for hiring the flat and the deal with finalised, payments were made and documents executed between the 24th and 27th January, 1986 at Pune. The question is who was this Ravinder Sharma? Once again there is no direct evidence regarding his identity but the prosecution places reliance on the opinion evidence of the handwriting expert PW 120 who has deposed that all these documents are in the handwriting of the absconding accused Sukhi.

From the above evidence what the prosecution can at best be said to have established is that the person who signed the register of Dreamland Hotel as Rakesh Sharma and the register of Gulmohar Hotel as Ravinder Sharma and the person who signed the lease documents pertaining to G-21, Salunke Vihar flat as Ravinder Sharma was one and the same person because according to the evidence of PW 120 the handwritings tally but the identity of that person has got to be established by comparing the said handwriting with the undisputed handwriting of the suspect. The prosecution seeks to attribute the authorship of the aforesaid documents to the absconding accused Sukhi but since the specimen or admitted handwriting of Sukhi could not be secured, as he had fled from this country to U.S.A. even before the conspiracy came to light, the mere opinion evidence of PW 120, even if accepted as its face value, is not sufficient to establish the identity of the author if those documents.

We will have to see if this missing link is supplied by other evidence on record. We may also hasten to add that at this stage we are not examining what value can he attached to the evidence of PW 120. The find of the original bill of Hotel Gulmohar, Exh. 92A, from the G-21, Salunke Vihar flat after the arrest of accused Nos.1 and 2 does not improve the matter for that by itself cannot prove 500 that the absconding accused Sukhi was the author of the documents relied on. none of these witnesses, not even PW 62 Kantilal Shah, has identified him even from his photograph. So also the fact that the said person, whoever he was, had given a false and bogus Bombay address of 307, Om Apartments, Borivali or that the handwriting of some person who had stayed in yet another assumed name in different hotels of Pune, Ahmedabad and Bhavnagar is of no help to establish the identity. Even though the entries Exh. 416 and 417 have been relied upon the two telephone operators of Dreamland Hotel were not examined. That being so the prosecution evidence falls for short for establishing its case that all these entries were made by the absconding accused Sukhi.

Then we come to the evidence in regard to the activities at the Antop Hill flat, Bombay, belonging to PW 49 Sadanand Gangnaik. According to him he had let the flat to Makhni Bai but since she has not been examined the further link is not established. As pointed out earlier, according to the prosecution, that flat too was hired by the absconding accused Sukhi sometime in October-November 1985 and the same was raided on 3rd May, 1986. Evidence was tendered by the prosecution with the avowed purpose of showing that a group of terrorists were in occupation of the said flat and when the same was raided certain incriminating evidence was found and attached therefrom. One such important piece is stated to be a novel in english entitled Tripple on the cover page whereof someone had scribbled in pencil the number of General Vaidyas’ Car DIB-1437. On the basis of the documents referred to in the preceding paragraph, the handwriting expert PW 120 says that the scribe of this number is the very person who happens to be the author of the aforesaid documents. But this piece of evidence suffers from the very same handicap from which the other evidence suffers in regard to the identity of the author of this document also. Besides, PW 48 H.S. Bhullar has contradicted himself on the authorship of the writing on the cover page of the novel Tripple. In his examination- in-chief he said it was in the handwriting of Sukha but on this point he was cross-examined by the prosecution to extract a statement that it was written by Sukhi. The idea was to establish contact between Sukhi and Sukha so that the former can be connected with the crime with the aid of section 120B, I.P.C. From the fact that clothes of different sizes were recovered from the said flat it was argued that several persons were in occupation of the flat.

The find of three live and one empty cartridges was a circumstance projected by counsel to support his say that the flat was 501 used for illegal purposes.

From the above facts it is not possible to infer that Sukhi and Sukha were in occupation of the flat. This gap is sought to be filled through PW 48 H.S. Bhullar who claims to be a friend of the inmates of the flat. This witness deposes to have taken three prostitutes to the flat to satisfy the sexual urges of Sukhi, Sukha and another who were living therein. Now this witness is said to have identified Sukha in Court. Exh. 318 dated 8th December, 1988 is an application given by accused No. 5 Jinda alleging that when he and Sukha were being taken to Court they were shown to the prosecution witnesses. Before we examine this allegation it is necessary to bear in mind that PW 48 was apprehended by the police on 10th May, 1986 and was booked as a co-accused but was later released and used as a witness. Great care must be exercised before acting on such a belated identification in Court by a witness who cannot be said to be an independent and unbaised person.

Corroboration is sought to be provided through the maid servant PW 49 Lalita who was working in the flat. She too had identified the accused in Court only. She was candid enough to accept the fact that the accused Sukha and Jinda were shown to her and PW 48 when they were being taken to Court. This admission nullifies the identification of the two accused by these two witnesses in Court. No weight can be attached to such identification more so when no satisfactory explanation is forthcoming for the investigation officer’s failure to hold a test identification parade. So also PW 50 Hira Sinha, one of the prostitutes, also identifies him in Court but she too was not called to any test identification parade to identify the inmates of the flat. She too admits that Sukha was shown to her when he was in the lock-up. The other prostitute Jaya who is said to have had sex with Sukha was not called to the witness stand though she attended Court. When PW 50 could not identify the person with who she had sex what reliance can be placed on her identification of Sukha in Court after a lapse of almost two years? Besides, it is an admitted fact that there was considerable change in the appearance of the accused, earlier they were clean shaven and later they were attired like sikhs making identification all the more difficult. No neighbour, not even the laundryman, was examined to establish their identity. In this state of the evidence if the learned trial judge was reluctant to act on such weak evidence, no exception can be taken in regard to his approach.

Reliance has been placed on the evidence of PW 46 Jagdish Bhave, 502 a policeman, who deposes that he had gone to the flat at 10.00 a.m. to make inquiries, was pulled in and locked up in the lavatory on 3rd May, 1986. He identifies accused No.1 Sukha as the person who had pointed a foreign make revolver at his neck. He also claims to have identified him at the test identification parade as well as in Court. In regard to the identification at the test identification parade, there is some discrepancy as he seems to have initially identified a wrong person. He had also seen him in the lock-up before the identification parade. Lastly, he claims he had managed to secure help by breaking the glasspanes of the rear ventilator of the lavatory. Now PW 49 Lalita deposes that she was in the flat till 11,00 a.m. If this witness was locked up and he had raised an alarm, PW 49 lalita would certainly have learnt about the same but she is totally silent about the same. If the glasspanes were broken a note thereof would have been taken in the panchnama. Atleast PW 158 PSI George would have spoken about the same. Besides the story given by PW 46 cannot be said to be a natural and credible one. The prosecution tried to contend that PW 49 Lalita being an illiterate woman was making a mistake on the time factor. We have no reason to so believe. Even if there is any doubt the benefit thereof would go to the defence. PW 155 M.V.Mulley who arranged the test identification parade for PW 46 supports him. But the prosecution does not explain why Inspector Ratan Singh and Sub-Inspector Govind Singh and the laundry man were not examined. Sub-Inspector Govind Singh would have explained why he could not identify accused No.1 at the test identification parade if he had been called to the witness stand. To us it seems PW 46 was put up to supply the lacuna regarding the involvement and identification of accused No.1 in particular. The learned trial judge was right in pointing out that several independent witnesses had not been examined and the prosecution staked its claim on an artificial and unnatural story found unacceptable put forth in the testimony of PW 49 Lalita. Even the identification of accused No.1 Sukha by PW 46 Jagdish does not carry conviction and is of no avail to the prosecution.

From the flat during the raid three live and one empty cartridges were found. One live cartridge was of .32″ bore while the other two live cartridges were of .38″ bore. The empty cartridge was of .38″ bore. These were forwarded along with the revolver which was found from accused No.2 on 7th September, 1986 at Pune, to PW 125 M.D.Asgekar, the ballistic expert. This witness has deposed that the empty cartridge was fired from the revolver found from accused No.2, which weapon, it was said, was used 503 in the Union Bank robbery. It is further his say that the live pistol cartridge .32″ bore was similar to the one used in General Vaidya’s assassination. True it is, the learned trial judge has overlooked this evidence. We will consider the impact of this evidence at a later stage.

A Brylcream bottle, Article 83, was found in the flat.

PW 150 Vijay Tote lifted the fingerprint on that bottle which was later compared by PW 122 A.R. Angre, Fingerprint- expert, with the fingerprint of accused No. 1 Exh. 607 and was found to tally. PW 107 S.V.Shevde, Director of Fingerprint Bureau proves this fact.

The next circumstance relied upon concerns the purchase of a red Ind-Suzuki motor cycle MFK 7548 on 8th May, 1986 through PW 18 Anantpurkar from PW 23 Suresh Shah, the allottee. This motor cycle was later serviced on 1st July, 1986 by PW 39 Pimpalnekar. The motor cycle was purchased in the name of Sanjeev Gupta, a name allegedly assumed by absconding accused Daljit Singh alias Bittu. The evidence of PW 12 Trimbak Yeravedkar shows that it was registered in the R.T.O. in the name of S.B.Shah and was then transferred in the name of Sanjeev Gupta. PW 76, a CBI officer had attached the free service coupon Exh.187 and the requisition slip Exh. 259. Neither bears any signature of the police officer or panch witness in token of being attached. The papers concerning a motor cycle bearing the name of Sanjeev Gupta are stated to have been recovered of 7th September, 1986 from Sukha and Nimma after their arrest following an accident. Since, according to the prosecution, the said motor cycle was used for murdering General Vaidya and was later recovered from the accident site on 7th September, 1986, it was argued that there was conspiracy preceding the said murder. The owner’s manual, Article 10, was found from G-21, Salunke Vihar, Pune, but that does not bear any name of even the registration number of the vehicle. The find of such a document, assuming it was really there and was not planted as submitted by the defence counsel, cannot advance the prosecution case. Another link which the prosecution tried to establish was that this motor cycle was seen parked in the garage allotted to the occupant of G-21, Salunke Vihar flat. This fact is proved through PW 24 Vidyadhar Sabnis. PW 25 Lt. Col. Basanti Lal, occupant of G-23 flat, however, states that since the garage allotted to him was being used for preparing his furniture in the month of May 1986, he was using the garage allotted to G-19 or G-21 flat holders for parking his car. All that his evidence shows that in the month of May 1986 one person 504 had come inquiring about the occupants of G-21 flat and as the flat was locked he had left a message which this witness says he had slipped through the gap in the door of that flat. This is neither here nor there. Then he states that he had seen a red Ind-Suzuki motor cycle parked near the garage of G-21 flat on the 9th or 10th of August, 1986. PW 26 Prakash Sabale, a neighbour residing in Anand Apartments, was called to depose that sometime in June 1986 he had seen a red Ind-Suzuki parked in the garage of G-21 flat. The evidence of this witness conflicts with that of PW 25 who has stated in no uncertain terms that he was parking his car in the said garage. Was there any particular reason for these witnesses to take note of the red coloured Ind-Suzuki motor cycle? No reason has been assigned by the witnesses or the investigating officer. Such red Ind-Suzuki motor cycles were not an uncommon sight in the city of Pune, atleast none says so. The evidence tendered by the prosecution in this behalf betrays a laboured attempt to connect the inmates of G-21 flat with the purchase of a red Ind-Suzuki motor cycle since it was subsequently involved in an accident on 7th September, 1986 and accused Sukha and Nimma were found using the same. No attempt was made to establish the identity of Sanjeev Gupta even through photographs.

PW 27 Hanuman Kunjir, a newspaper vendor, was examined to prove that he supplied the Indian Express newspaper to the occupants of G-21 flat. He discontinued supplying the newspaper when he found that the earlier issues which he had left in the door-gap had not been collected by anyone and there was no gap through which he could push-in the newspaper. Once he had found the door open and recovered his dues under receipt Exh. 218.No attempt has been made to establish the identity of the person who asked him to supply the newspaper or the person who paid the amount of Rs.40 for which he gave the receipt Exh. 218. Hence his evidence is of no use to the prosecution.

The prosecution alleges that Sukhi left India on 14th July, 1986. The absconding accused Bittu and accused No.1 Sukha had also secured false passports in fake name.Sukha is said to have taken out a passport in the name of Charan Singh. No expert opinion was tendered though the handwriting expert was examined to show that the application for passport was tendered by Sukha in the assumed name of Charan Singh. The learned trial judge also points out that the photograph seems to have been tempered with and ex-facie raises a grave suspicion regarding the circumstances in 505 which and the point of time when it came to be affixed. PW 55 S.S.Kehlon has signed the index card of Charan Singh’s application. PW 54 Raj Rani Malhotra deposes that nothing adverse was reported by the CID officers in respect of Charan Singh. The passport was, therefore, issued to Charan Singh. From the above evidence it is difficult to ascertain who tampered with the photograph. Even PW 70 Rajkumar Mittal who dealt with the index card did not find anything suspicious at that time. PW 77 Kulbhusan Sikka had delivered the passport to Shashi Bhushan who was authorised by Charan Singh to receive the same. From the above evidence and particularly lack of expert evidence it is difficult to conclude that accused No.1 Sukha had committed forgery to secure a passport to leave India. The prosecution has tried to show that Sukhi obtained a passport in the name of Sunil Kumar, Bittu obtained a passport in the name of Harjit Sidhu and Sukha tried to obtain a passport in the name of Charan Singh. It is true that Sukhi left India on 14th July 1986, may be on a forged passport. So also we may assume that Bittu obtained a false passport and so did Sukha. This by itself will not establish a firm link between the three as co-conspirators. As stated earlier none in the passport office suspected anything shady in regard to Charan Singh’s application for grant of passport.

It seems that only after the passport was issued some tampering was attempted. The manner in which the photograph is pinned raises suspicion. Who did it is the question? There is no evidence in this behalf. There is nothing on record, except suspicion, that accused No.1 was privy to it.

In the absence of reliable evidence it is unwise to act on mere suspicion. We. therefore, cannot find fault with the approach of the learned trial judge so far as this part of the prosecution case in concerned.

One further fact on which the prosecution places reliance in support of its’ case of criminal conspiracy is that accused Nos. 1, 2 and 5 travelled by Chhatisgarh Express from Ambala to Doorg between 3rd August, 1986 and 5th August, 1986 and from Doorg to Bombay by Gitanjali Express in assumed names. Apart from the oral evidence of PWs 126 to 135 and 151, the prosecution has placed strong reliance on the reservation forms Exh. 700 and 701 purporting to be in the handwriting of accused No.1 Sukha.

There is no direct evidence as admittedly they had travelled in assumed names and none has identified them. Thus the only evidence is the opinion evidence of the handwriting expert PW 120 to the effect that the reservation forms are in the handwriting of accused No.1 Sukha. While in Bombay, the accused No. 1 is stated to have given his clothes to Lily White Dry- 506 cleaners on 7th August, 1986 and received them from PW 89 Deepak Nanawani on the next day. PW 30 Arjun Punjabi has proved the two tags of the said laundry found from G-21, Salunke Vihar flat when the same was searched. But the said evidence cannot be of much use unless the identity of the person who delivered and received back the clothes is established. Here also the prosecution relies on the evidence of the hand-writing expert to show that accused No.1 had written his name (assumed name) on the bill prepared at the time the clothes were delivered for dry- cleaning.

From the facts discussed above it becomes clear that the direct evidence, if at all, regarding the identity of the persons who moved about in different assumed names is either wholly wanting or is of such a weak nature that it would be hazardous to place reliance thereon without proper corroboration. As pointed out earlier the direct evidence regarding identity of the culprits comprises of (i) identification for the first time after a lapse of considerable time in Court or (ii) identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused persons had since changed their appearance. Test identification parade, if held promptly and after taking the necessary precautions to ensure its creditability, would lend the required assurance which the court ordinarily seeks to act on it. In the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance.

We, therefore, think that the learned trial judge was perfectly justified in looking for corroboration. In Kanan & Ors. v. State of Kerala, [1979] SCC 621 this Court speaking through Murtaza Fazal Ali, J. observed:

“It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I.

parade to test his powers of observations. The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to 507 identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court.” We are in respectful agreement with the aforequoted observations.

The prosecution also led evidence to show that the accused persons were put up for test identification by the witnesses who claim to have seen them at different places before the actual incident of murder took place. we have adverted to the prosecution evidence in this behalf earlier and have pointed out how weak and thoroughly unreliable the said evidence is. It has been shown that some of the witnesses who claim to have identified the accused, one or more, have conceded that they had an occasion to see the accused in the Borivali lock-up earlier in point of time.

This admission on the part of the witnesses has rendered the evidence in this behalf of little or no value and such evidence was rightly brushed aside by the trial Court. We too, having critically examined the evidence in this behalf, find it difficult to accept the same. Therefore, the direct evidence regarding the identity of the accused is of no help to the prosecution.

The prosecution has then relied on the evidence of the handwriting expert PW 120 to establish the involvement of the accused, including the absconding accused, in the commission of the crime in question. In the case of the absconding accused Sukhi, PW 120 examined a host of documents marked Q.1 to Q.34, Q.55 and Q.62 to Q.91 and compared them with the two documents A53 and A54 marked as admitted writings of Sukhi. The expert opined that Q.1 to Q.12, Q.14 to Q.23, Q.55, Q.62 to Q.66, Q.68 to Q.70, Q.72 to Q.77, Q.79 to Q.85, Q.87 and Q.89 were in the handwriting of the author of the documents marked A53 and A54. In the case of accused No.1 Sukha, PW 120 examined the questioned documents marked Q.40 to Q.54, Q.60, Q.61, Q.94 and Q.95 and compared them with his specimen writings marked S1 to S49, S52 to S59, S62 to S64 and the admitted writings A1 to A53 and A62 to A73 and came to the conclusion that the writings Q.40, Q.54, Q.60, Q61., Q.94 and Q.95 tallied with the specimen and admitted writings of accused No.1. So far Q.55 is concerned an express negative opinion was obtained that it was not in the hand of accused No. 1. Similary in regard to the accused Daljit Singh @ Bittu, questioned documents marked Q.35 to Q.39 were compared with the 508 admitted writings marked A55 to A59 and the expert opined that Q.35 to Q.39 showed similarities with A55 to A59. The handwriting of accused No.5 Jinda could not be obtained and, therefore, the question of comparing his specimen writings with the questioned writings did not arise.

Before a Court can act on the opinion evidence of a handwriting expert two things must be proved beyond any manner of doubt, namely, (i) the genuineness of the specimen/admitted handwriting of the concerned accused and (ii) the handwriting expert is a competent, reliable and dependable witness whose evidence inspires confidence. In the present case since the absconding accused are not before us we are mainly concerned with the expert’s opinion implicating accused No.1 Sukha. The specimen writings of this accused have been proved through the evidence of PW 5 Shaikh Zahir and PW 68 Anand Pawar. The evidence shows that PW 168 S.Prasad, a police officer, had called the witness to a room where accused No.2 Nirmal Singh was present and he was required to write down what the said police officer dictated to him. The specimen writings of Nirmal Singh have been proved through the evidence of the said PW 5 and PW 41 Ramkripal Trivedi. Thereafter they went to another room where accused No. 1 was present. At the instance of PW 160 M.P. Singh he was asked to sign as many as fifteen papers.

The learned trial judge has not doubted this part of the prosecution case and we may proceed on that basis. To prove the natural handwriting of accused No.1, the prosecution examined PW 84 S.K.Prachendia, a lecturer of Gyan Jyoti P.G.

College. This witness claims that accused No.1 was his student and he had submitted an application in the prescribed from for admission to be P.G. Course as a private candidate. In support, reliance is placed on the photograph Art.31 showing the witness in company of accused No.1. Two other registers (Arts. 39 & 40) have been relied upon to prove that certain replies are in the hand of accused No.1.

But unfortunately for the prosecution the witness could not even identify accused No.1. in the dock nor did he state that the form and the entries in the registers were made by accused No.1 in his presence. In his cross-examination the witness admitted that he would not be able to identify the handwriting of other students who studied under him. More so in the case of accused No.1 who was only a private student. In the circumstances we agree with the learned trial judge that the evidence on record in regard to the natural handwriting of accused No.1 is not satisfactory and does not inspire confidence. If we rule out this part of the material used by the handwriting expert for comparison we are merely left 509 with the specimen writings/signatures of accused No.1 taken while in custody. Here also the evidence of PW 120 itself shows that the handwriting of the railway reservation from Exh. 700 does not tally with the specimen writings/signatures of accused No. 1. It only highlights the fact that it would be dangerous to identify the person who travelled on the strength of the reservation form Exh. 700 by comparing the writing thereon with the specimen writings of accused No.1. The evidence of PW 30 Arjun Punjabi and PW 89 Deepak Nanwani and the find of laundry tag No. 8833 of Lily White Dry-cleaners from G-21, Salunke Vihar flat on 7th September, 1986 was used to establish the fact that accused No.1 was one of the inmates of the said flat and was in Pune a couple of days before the murder of General Vaidya. This connection is sought to be established on the strength of the opinion evidence of PW 120 that the handwriting and signature on the laundry bill Exh. 547 tallied with the specimen writings/signatures of accused No.1. But the laundry tags do not bear the name of the laundry or the year of issue. It was, however, urged that the evidence of PW 89 clearly proved that the number on the tags tallied with the number on the Bill and the opinion evidence of PW 120 clearly established the fact that since the writing and signature on the bill tallied with the specimen writing/ signature of accused No.1, it was reasonable to infer that accused No.1 resided in the G-21, Salunke Vihar flat. But what is indeed surprising is that PW 89 was neither called to the test identification parade nor asked to identify the person who had delivered the clothes for drycleaning from amongst the accused seated in the dock. The question then is whether implicit reliance can be placed on the opinion evidence of the handwriting expert PW 120.

It is well settled that evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis and (iii) by the court comparing the disputed document with the admitted one. In the present case the prosecution has resorted to the second mode by relying on the opinion evidence of the handwriting expert PW 120. But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility 510 of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility.

There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. Before a court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the courts are wary to act solely on the evidence of a handwriting expert;

that, however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the court will not act on the expert’s evidence. In the end it all depends on the character of the evidence of the expert and the facts and circumstances of each case.

In Ram Narain v. State of U.P., [1973] INSC 75; [1973] 2 SCC 86 this Court was called upon to consider whether a conviction based on uncorroborated testimony of the handwriting expert could be sustained. This Court held:

511 “It is no doubt true that the opinion of handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert.” A similar view was expressed in the case of Bhagwan Kaur v. Maharaj Krishan Sharma, [1972] INSC 261; [1973] 4 SCC 46 in the following words:

“The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, by wary to give too much weight to the evidence of a handwriting expert.” In Murari Lal v. State of M.P., [1979] INSC 247; [1980] 1 SCC 704 this Court was once again called upon to examine whether the opinion evidence of a handwriting expert needs to be substantially corroborated before it can be acted upon to base a conviction. Dealing with this oft repeated submission this Court pointed out:

“Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person `specially skilled’ `in questions as to identity of handwriting’ is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert’s opinion in unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that `a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard 512 of proof not warranted by the provisions of the Act. Further, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.” After examining the case law this Court proceed to add:

“We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion- evidence of a handwriting expert must never be acted upon, unless substantially corroborated.

But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight.” 513 What emerges from the case law referred to above is that handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger- prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case of its own merits what weight it should attach to the opinion of the expert.

The trial court examined the evidence of the handwriting expert PW 120 in great detail and came to the conclusion that it was hazardous to rely on his evidence as he had betrayed bias against the accused and in favour of the prosecution as `he also belongs to the Police Department` (see paragraph 159 of the judgement. As regards the specimen writings/signatures of accused No.1 the trial court observes in paragraph 157 as under:

“These answers in cross-examination of this witness do show that the specimen writings of Sukhdev Singh alias Sukh (accused No.1) and the questioned writings are not written by Sukhdev Singh (accused No.1) at all.” As regards accused No.2 Nimma, the learned trial judge points out that the specimen signature `N.Singh` does not correspond with the questioned documents. The learned trial judge, therefore, did not consider it wise to place reliance on the opinion of PW 120 particularly because he did not consider his opinion to be independent but found that he had betrayed a tilt in favour of the investigating machinery.

Since the trial court did not consider the opinion of PW 120 to be dependable he did not deem it necessary to look for corroboration. For the same reason he did not consider it necessary to scrutinise the evidence of the expert in regard to the two absconding accused Sukhi and Bittu. No such opinion evidence is 514 relied upon in respect of the other accused. We may at once state that the quality of evidence in regard to proof of identity of Sukhi and Bittu through their so-called handwriting is weaker than that of accused No.1. We have carefully examined the opinion evidence of PW 120 and we agree with the learned trial judge that the quality of his evidence is not so high as to commend acceptance without corroboration. Having given our anxious consideration to the expert’s evidence, through which we were taken by the learned counsel for the prosecution, we do not think that the view taken by the learned trial judge is legally unsustainable or perverse. Even otherwise having regard to the facts and circumstances of the case and the nature of evidence tendered and the quality of evidence of PW 120 the prosecution has not succeeded in establishing beyond reasonable doubt the so-called conspiracy.

It was then submitted, relying on section 73 of the Evidence Act, that we should compare the disputed material with the specimen/admitted material on record and reach our own conclusion. There is no doubt that the said provision empowers the court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistance of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused Nos.1 and 2. Although the section specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings.

From the above discussion of the evidence it is clear that the prosecution’s effort to provide the missing links in the chain by seeking to establish the identity of the participants to the alleged conspiracy through 515 the handwriting expert PW 120 has miserably failed. We, therefore, agree with the conclusion of the learned trial judge in this behalf.

That brings us to the incident of murder of General Vaidya on the morning of 10th August, 1986 at about 11.30 a.m. We have set out the facts in regard to the said incident in some detail in the earlier part of this judgment and will recapitulate only those facts which are necessary to be noticed for the purpose of appreciating the evidence leading to the murder. The fact that General Vaidya died a homicidal death is established beyond and manner of doubt by the evidence of PW 157 Dr. L.K.Bade who had undertaken the post-mortem examination and had opined that death was due to shock suffered following gun shot injuries. Counsel for the defence had also admitted this fact as is evidenced by Exh. 155. As this fact was not challenged before the trial court, as indeed it could not be, nor was it contested before us, we need not detain ourselves on the same and would proceed to examine the evidence with a view to fixing the responsibility for the said crime.

On the morning of the day of the incident General Vaidya and his wife PW 106 Bhanumati had gone out for shopping in the Maruti Car DIB 1437 at about 10.00 a.m. with their securityman PW 16 Ramchandra Kshrisagar in the rear seat. When they were returning at about 11.30 a.m. with General Vaidya in the driver’s seat, his wife by his side in the front and the securityman behind her, the incident in question occurred. The car had slowed down at the intersection of Rajendrasinghji and Abhimanyu roads since it had to negotiate a sharp right turn to go to the residence of General Vaidya. Taking advantage of this fact a Ind- Suzuki motor cycle came parallel to the car on the side of the driver i.e. General Vaidya and the pillion rider took out a pistol or gun and fired and three shots in quick succession at the deceased. Immediately thereafter the motor cyclists sped away and the victim slumped on the shoulder of his wife who too was injured. Unfortunately the reflexes of the securityman were not fast enough and hence the culprits could make good their escape without a shot having been fired at them by the securityman. The car drifted towards the cyclists PW 14 Digambar Gaikwad who, sensing trouble, jumped off leaving the cycle which came under the front wheel of the car. Therefore, we have the testimony of three persons who can be described as witnesses to the main incident, namely, PW 16 the securityman, PW 106, the wife of the deceased and PW 14, the cyclist. In addition to the evidence of the aforesaid three 516 witnesses, the prosecution has also placed reliance on the evidence of PW 111 G.B.Naik, PW 114 Vijay Anant Kulkarni and PW 115 B.V.Deokar, on the plea that these witnesses had also seen the incident and the culprits from the rickshaw in which they were passing at that time of the incident. The trial court has placed reliance on the first set of the witnesses and has rejected the evidence tendered through the second set of witnesses as it did not accept the fact that the autorickshaw in question had actually passed by. We will discuss the prosecution evidence regarding the commission of the crime in two parts.

The evidence of the securityman PW 16 Ramchandra Kshirsagar is that when the car was proceeding towards the intersection from where it had to turn right to go to the bungalow of General Vaidya, he saw an autorickshaw coming from the opposite side and signalled it by stretching out his hand to keep to the extreme left. Then he saw a cyclist also coming from the opposite side and signalled him also.

Just then the car which had slowed down considerably began to negotiate a turn when a red Ind-Suzuki motor cycle drove along the car on the side of General Vaidya who was at the steering wheel. The pillion rider fired three shots from his weapon at the head of General Vaidya and then sped away.

This witness wants us to believe that as he was busy signalling the rickshaw driver he had not seen the motor cycle approaching the car before the first shot was fired.

As soon as the car came to a halt, he jumped out of the car with his service revolver but as PW 106 Bhanumati Vaidya was shouting for a conveyance he went about searching for one and found a matador van in which the injured General Vaidya was rushed to the hospital. It was after reaching the hospital that he contacted the L.I.B. Inspector Garad to whom he narrated the incident and reiterated the same to the Commissioner of Police. His detailed complaint Exh. 179 was then recorded by PW 119 Inspector Mohite in which he described the colour of the motor cycle as black and not red. Since he was sitting behind PW 106 Bhanumati, he could have seen the assailant when his attention was drawn in that direction on hearing the first shot fired from close range.

It is difficult to believe that he had no opportunity to see the motor cyclists. It must be remembered that four shots were fired, albeit in quick succession, but there was a slight pause after the first shot. It is difficult to agree with the suggestion that he had no opportunity to see the assailant and his companion. In fact he states that he saw them from a distance of three or four feet only. As pointed out earlier accused Nos.1 and 2 were arrested on 7th September, 1986 when 517 they met with an accident. Thereafter on 22nd September, 1986 this witness was called at about 12 noon to the Yervada Jail. Soon thereafter a person who identified himself as a magistrate came and gave them certain instructions regarding the identification parade about to be held. He was then called to a room in which 10 to 12 persons had lined up and he was asked if the person who had fired at General Vaidya was amongst them. He identified one person from the queue as the assailant. He identified accused No.1 as that person in Court also. The Panchnama drawn up in regard to the test identification parade is at Exh. 349 duly proved by PW 51 B.S. Karkande, Special Judicial Magistrate. Except for a couple of minor contradictions there is nothing brought out in his cross-examination to doubt his testimony regarding identification of accused No.1 as the person who fired the shots at General Vaidya. The presence of this witness at the time of occurrence cannot and indeed was not doubted.

So also it cannot be denied that he had an opportunity to identify the assailant. We, therefore, do not see any serious infirmity in his evidence which would cast a doubt as regards his identification of accused No. 1.

The next important witness is PW 106 Bhanumati Vaidya.

She had accompanied her husband and was sitting next to him in the front seat of the car when the incident took place.

She states that when the car took a turn at the intersection she heard three sounds like the misfire of a motor cycle but soon thereafter her husband’s left hand slipped from the steering and his neck slumped on her shoulder. She states that the car drifted towards a cyclist who jumped off leaving the cycle which was run over by the front wheels of the motor car. She saw the motor cycle with two riders speed away and could only see the back of the pillion rider.

She too had received bullet injuries on her right shoulder and was admitted in the intensive care unit of the hospital.

She was operated upon for removal of the bullets from her body. Next day a magistrate had visited the hospital and had recorded her statement. She has deposed that the pillion rider whom she had seen from behind had been noticed by her two days earlier on 8th August, 1986 at about 9.00 or 9.30 a.m. with a red motor cycle opposite Gadge Maharaj School at the corner of bungalow No. 45. Two persons were standing there one of whom was the pillion rider whom she saw from behind after the shoot out. She, however, expressed her inability to indentify him from amongst the accused persons in Court. Under cross-examination she stated that she could not say if it was a motor cycle or a moped. Thus her evidence proves the incident beyond any manner of 518 doubt but her evidence is of little use on the question of identity of the assailant and his companion.

PW 14 Digamber Shridhar Gaikward, the cyclist, deposes that at the time of incident he was proceeding on his cylce towards the railwaystation when he heard three sounds and looked towards the Maruti car. He saw a red motor cycle by the side of the driver of the car. It sped away with two persons riding it. The pillion rider who had a bag was seen putting something therein. Since the driver of the car was wounded on his head, he lost control of the vehicle and the same came towards him whereupon he jumped off and the cycle was under the wheels of the car. In cross-examination he stated that he had not seen any other vehicle on the road, thereby ruling out the presence of any autorickshaw in regard to which PW 16 has spoken. His evidence is also not useful from the point of identity of the assailant.

The evidence of three more witnesses PW 60 Jaysingh Mahadeo Hole, PW 61 Nazir Husain Ansari and PW 103 Ashok Jadhav may be noticed at this stage. PW 61 and PW 103 have deposed that on the day previous to the incident two persons had approached them and had inquired about the residence of a recently retired army General. These two persons identified accused No.1 as the person who had approached them with his companion waiting near the motor cycle. PW 60 is the chowkidar who had seen two persons sitting on their red motor cycle in the compound of Gadge Maharaj School and had driven them out. He also identified accused No. 1 along with PWs 16, 61 and 103 at the test identification parade held on 22nd Sepember, 1986. It is pertinent to note that PWs 61 and 103 had identified accused No.5 through his photographs Articles 23 and 75. They identified him in Court but accused No.5 stated in answer to question No. 135 that they did so at the behest of the police.

We now come to the next group of witnesses, the driver and the two passengers of the autorickshaw which the securityman PW 16 claims was seen coming from the opposite direction. PW 16 says that just as the car was turning towards the right, he saw an autorickshaw coming from the opposite direction and signalled it to move to the extreme left. True it is that PW 14, the cyclist, did not notice it but in our view that cannot cast any doubt on the credibility of PW 16. There was no need for the cyclist to take note of the autorickshaw. His attention was rivetted at the car and 519 the motor cycle after he heard the shots and there was no need for him to notice the autorickshaw. Counsel for the accused submitted that the story regarding the presence of an autorickshaw was invented by the securityman PW 16 to save his skin as he had been guilty of a serious lapse in having failed to save General Vaidya and apprehend his assailants. We may examine the evidence of the rickshaw driver PW 115 Baban Vithobha Deokar and the two passengers PW 111 G.B.Naik and PW 114 Vijay Anant Kulkarni. PW 111 had two daughters Anuradha and Anupama. Anuradha is the wife of PW 114 whereas Anupama was wedded to Arunkumar Tomar.

Anupama had come to her father’s house from Secunderabad on 4th August, 1986 as her relations with her husband were strained. On the next day her husband who was an Education Instructor in the Military had also come to Pune. While at the house of PW 111 there was a quarrel between the couple;

hot words were followed by physical assault. In the course of this quarrel she was kicked in the abdomen and being pregnant complications developed within a couple of days necessitating her removal to the clinic of PW 1 Dr. Sudhir Kumar on 7th August, 1986. Her husband had left earlier but PW 114 who had come to Pune had assisted his father-in-law in the treatment of Anupama who was operated upon on the morning of 10th August, 1986, vide Exh. 82. The son of PW 111 was also a doctor in military service and in consultation with him and PW 114, PW 111 had decided to lodge a complaint against Arunkumar Tomar with the higher military authorities. After the complaint was drafted it was decided to have it typed on a stamp paper so that sufficient copies could be taken out for being despatched to various authorities. The stamp paper was purchased from PW 36 Mrs. Gokhle The draft was got typed at N.B.Xerox company situate at Camp, Pune, as is evident from PW 37 Hidayat Ali.

This part of the prosecution case is supported by Exh. 249, an entry from the stamp-vendor’s register, evidencing the purchase of the stamp paper Exh. 249A proved through the stamp-vendor PW 36. The original complaint Exh. 249A typed on the stamp paper was forwarded to the General Officer Commanding whereas ten copies thereof taken out on an electronic typewriter were sent to different authorities under the signature of Anupama. This is also proved through the deposition of PW 37 Hidayat Ali.

On 10th August, 1986, PW 111 and PW 114 picked up an autorickshaw outside Agakhan Palace at about 11.00 a.m. to go to Stree Clinic of Dr. Sudhir Kumar. He was instructed to drive through camp area. They 520 passed through Bund Gardens, took the overbridge and passed via the Circuit House to Abhimanyu Road. PW 111 was sitting on the right side and his son-in-law PW 114 was to his left.

A white Maruti car was noticed and then he saw a red coloured Ind-Suzuki motor cycle being driven parallel to the car on the driver’s seat side. They then saw the pillion rider pump in three bullets in the head of the driver of the car. This witness deposes that the assailants were 20 or 25 years of age. When the motor cycle passed by the rickshaw, the witness had an opportunity to identify the motor cyclists. They were clean shaven then but were in turban and beard in Court. Then these two witnesses got down from the rickshaw and helped others lift the body of General Vaidya to the matador van which carried him and his wife to the hospital. They then went to PW 37 Hidayat Ali, picked up the typed material and went to Stree Clinic where they discharged the rickshaw. They had narrated the incident to PW 37. PW 111 also claims to have made a note about the incident in his dairy Exh. 622. It is true that the statements of these two witnesses were recorded late i.e.on 24th October, 1986 presumably because their names had not surfaced earlier. The witness was shown several photographs and he could recognise one of them as the driver of the motor cycle. This photograph is marked Art. 148. Later both PW 111 and PW 114 had identified accused No.1 at the test identification parade held on 29th October, 1986. Both the witnesses also identified accused Nos.1 and 5 in Court.

Albeit PW 111 took some time to identify accused No.1 in Court but that may be on account of the change in his appearance. It is said that the evidence of PW 111 and PW 114 stands corroborated by the evidence of PW 36 and PW 37 and the documentary evidence Exh. 249, 249A and Exh. 82 The rickshaw driver PW 115 has deposed that on 10th August, 1986 at about 11.00 a.m. while he was waiting in front of Agakhan Palace he was engaged by PW 111 and PW 114 who instructed him that they desired to go to the camp area and from there to the Deccan area. When his vehicle approached the Circuit House intersection and emerged on the Abhimanyu road he saw a white Maruti car and one Ind-Suzuki motor cycle taking a turn to the right of the intersection.

The motor cyclists drove on the side of the driver’s seat and the pillion rider fired three shots at the driver of the car. Immediately thereafter the motor cyclists sped away.

He then speaks about the manner in which the cyclist jumped off and the car came to a halt after running over the cycle.

He also states that thereafter the two passengers got down from his rickshaw and went near the car. He 521 also parked his rickshaw at the corner of the intersection and joined the other two passengers. He found that the car driver was injured on the head and was bleeding profusely.

A matador van arrived and the injured was lifted and placed in the van and carried to the hospital. He and the two passengers then returned to the rickshaw and proceeded towards Deccan side and from there to the Stree Clinic.

Sometime after the incident i.e. on 8th November, 1986, the C.B.I. officers showed him seven or eight photographs and asked him if he could recognise the photographs of the motor cyclists. He recognised the photograph of the driver of the motor cycle is but he did not notice any photograph of the pillion rider. The photograph of the driver of the motor cycle is included at Art. 150 and his signature was obtained on the reverse of it. This photograph is stated to be of accused No.5 whom the witness later identified in Court also. No test identification parade could be held as accused No.5 Jinda could not be arrested till 30th August, 1987. The evidence of this witness also lends corroboration to the evidence of PWs 111 and 114.

There is also the evidence of PW 28 Noor Mohamad, also a rickshaw driver in whose rickshaw PW 111 and PW 114 had gone to the Jan Kalyan Blood Bank to register their name in case blood may be required at the time of Anupama’s operation. He has also stated that the two passengers were talking about having witnessed a shoot out earlier in the day as is ordinarily seen in movies.

The learned trial judge discarded this part of the prosecution case for diverse reasons, some of them being (i) the story of the securityman PW 16 in regard to the location of the autorickshaw is in sharp conflict with his version in the FIR; (ii) the presence of PW 111 and PW 114 at the place of the incident is highly doubtful for the reason that there was no cause for them to take the longer route, more particularly when Anupama was admitted to the clinic of PW 1 and was to be operated on that very day; (iii) the conduct of both the witnesses in maintaining sphnix-like silence for more than two and a half months when the incident had shaken the nation was highly unnatural, more so because admittedly PW 111 had met inspector Mohite only a few days after the incident., may be in some other connection; (iv) the entry in the diary of PW 111 regarding this incident was ex-facie a laboured attempt made with a view to creating corroborative documentary evidence to support his false version; and (v) the identification of the motor cycle driver through a photograph purport- 522 ing to be of accused No. 5 Jinda is also an attempt to connect the said accused with the crime in question. The learned Additional Solicitor General made a valiant attempt to question the correctness of the grounds on which the learned trial judge brushed aside this part of the prosecution case. But for the view we are inclined to take we would have given our anxious consideration to the submissions of the learned counsel. The purpose of leading this evidence was essentially to identify the driver of the motor cycle through these witnesses. They did so by picking up one photograph from seven or eight shown to them. Whose photograph is this? Accused No. 5 disowns it. No test identification parade was held since accused No. 5 Jinda was apprehended at Delhi a year or so later on 30th August, 1987 and was taken to Pune in January 1988. Although the prosecution did not deem it wise to hold a test identification parade because of the passage of time, the witnesses examined later did not hesitate to point a finger at accused No.5 Jinda during the trial. Therefore, according to the prosecution the photograph was that of accused No. 5 Jinda who was very much in Court. The learned trial judge, therefore, had the benefit of comparing the photograph with accused No. 5 whose photograph it purported to be. In the connection the learned trial judge has this to say in paragraph 342 of his judgment :

“Firstly, in my opinion, this photograph does not appear to be that of Harjinder singh alias Jinda (accd. 5) at all.” *** *** *** *** “…how can I hold that this is the photograph of Jinda (accd. S), when obviously to the naked eyes, it does not look similar to the face of Jinda (accd. 5) Proceeding further, in paragraph 343, the learned judge add:

“……..whereas in the instant case before me, the photograph does not appear to be of Jinda (accd.

5)” It will thus be seen that the learned judge on a comparison of the photograph with the features of accused No. 5 who was very much before him categorically held that the photograph pointed out by the witnesses was not of accused No. 5. We cannot ignore the photograph from consideration for non-production of the negative (not traced) because that is 523 merely an additional plank on which the trial court has ruled out this part of the prosecution case. For the above reasons the trial court refused to place reliance on the prosecution’s attempt to establish the identity of accused No.5 as the driver of the motor cycle through photographs.

But the learned Additional Solicitor General submitted that it is not possible to believe that the photographs relied on were not the photographs of accused No.5. He submitted that accused No.5 was apprehended in Delhi on 30th August, 1987 and as his legs were fractured he was immediately admitted to a hospital and was taken to Pune in January 1988. In the meantime his photographs had appeared in various newspapers, magazines and also on television and, therefore, it is not possible to believe that the investigating officer would be so naive as to show and produce some one else’s photographs. He submitted that perhaps because the appearance of accused No.5 and undergone a change in the meantime even the learned judge had difficulty in identifying him as the person in the photographs. He submitted that this was followed by the witnesses identifying him in Court. There is considerable force in this line of reasoning but at the same time we cannot over look the opinion of the learned judge who had the opportunity to compare the photographs with the features of accused No. 5 who was very much before him. Had the evidence rested there we would have found it difficult to ignore it but we find that accused No.5 has in his statement recorded under section 313 of the Code admitted the fact that it was he who was driving the motor cycle with accused No.1 on the pillion seat when General Vaidya was shot down.

He has also admitted this fact in his written statement Exh.922 submitted to court through the Jailor and followed it up by admitting the same in answer to Question No. 249 of his statement under section 313 of the Code. He has further stated that accused No. 1 and he killed General Vaidya as he had attacked and destroyed the Akal Takht in the Golden Temple at Amritsar. He then adds that the Sikhs are fighting for a separate State of Khalistan and will continue to fight till the goal is achieved. Lastly, he says “we sikhs are not afraid of death”. It was, therefore, submitted by the learned Additional Solicitor General that this statement is sufficient to prove his involvement in the commission of the crime and in any event it lends corroboration to the prosecution evidence in this behalf.

Accused No.1 has also made a statement on similar lines admitting his involvement in the crime and the fact that he had fired the fatal shots at General Vaidya from the pillion seat of the motor cycle. So far as accused No.1 is concerned there is 524 evidence tendered by the prosecution of witnesses who identified him at the test identification parade, in court, through photographs and by the eye-witness the securityman PW 16 and his statement lends corroboration thereto. The question then is can a conviction be based on such an admission of guilt made in the written statements followed by the oral statement under section 313 of the Code? The charge was framed on 2nd September, 1988. Both accused Nos.1 and 5 along with others pleaded not guilty to the charges levelled against them and claimed to be tried.

After recording the plea, the proceedings were adjourned to 19th September, 1988 on which date accused No.1 orally informed the learned trial judge that he had killed General Vaidya and he did not desire to contest the case. The accused No. 1 has later explained in his statement under section 313 of the Code that according to him killing General Vaidya was not a crime and that is why he had not pleaded guilty. Be that as it may, the learned trial judge gave accused No.1 time upto 26th September, 1988 to reflect.

On that date accused No.1 presented a written statement Exh.

60A wherein he admitted to have fired four shots at General Vaidya and killed him. He further stated that he had learnt that he had injured his wife also but that was wholly unintentional. Even later when his statement was recorded under section 313 of the Code, he owned the statement Exh.

60A and did not try to wriggle out of it. He departs from the prosecution case, in that, he says he was riding a black (not red) motor cycle and that accused No.5 was not the driver but one Mathura Singh was driving the motor cycle.

That betrays an attempt on his part to keep out accused No.

5. Even after this statement was filed the learned trial judge did not convict him straightaway but proceeded to complete the prosecution evidence before recording his statement under section 313 of the Code. He followed this up by yet another statement Exh. 919 admitting his guilt.

Accused No. 5 Jinda pleaded not guilty to the charge.

He did not make any such statement till the conclusion of the evidence when he sent Exh. 922 through jail. However, at the conclusion of the prosecution evidence when accused No. 5 was examined under section 313 of the Code, he admitted that he was the driver of the motor cycle and accused No.1 was his pillion rider. He also admitted that accused No.1 had fired the fatal shots at General Vaidya while sitting on the pillion seat. In answer to the usual last question accused No. 5 said that on the date of the incident he 525 was driving a black motor cycle with accused No.1 on the pillion seat and it was the latter who fired at and killed General Vaidya. This being an admission of guilt, the question is whether the Court can act upon it. He has supported this by his written statement Exh. 922. It will thus be seen that both the accused Nos.1 and 5 made written as well as oral admissions regarding their involvement in the commission of the crime.

It is manifest from the written statements of both accused Nos. 1 and 5 and from their oral statements recorded under section 313 of the Code that they firmly believed that since General Vaidya was responsible for conducting operation Blue Star which had damaged a sacred religious place like the Akal Takht of the Golden Temple at Amritsar and had also hurt the religious feelings and sentiments of the sikh community, he was guilty of a serious crime, the punishment for which could only be death, and, therefore, they had merely executed him and in doing so had not committed any crime whatsoever. As stated earlier it is on this notion that the accused continued to plead not guilty while at the same time admitting the fact of having killed General Vaidya. It may be mentioned that when the eye- witness account was put to him, accused No.1 admitted that he was the pillion rider who had fired four shots at General Vaidya. His answers to the various circumstances pointed out to him in his statement under section 313 of the Code reveal that he unhesitatingly admitted the entire eye- witness account and also owned responsibility for the crime.

Even in his written statement Exh. 60A he admitted “Maine Vaidya Sabko Mara Hain” meaning “I have killed Vaidya Saheb”. So far as accused No. 5 is concerned he too admitted the correctness of the eye-witness account of the incident leading to the ultimate death of General Vaidya.

When he was asked if he had anything else to say, he referred to his statement Exh. 922 and admitted that it was in his own handwriting, its contents were correct and he had signed it. He also admitted that he was driving the motor cycle when his pillion rider fired at General Vaidya and injured him. It is in this background that we must examine the impact of their admissions in their statements under section 313 of the Code.

Section 313 of the Code is intended to afford a person accused of a crime an opportunity to explain the circumstances appearing in evidence against him. Sub- section (1) of the section is in two parts : the first part empowers the court to put such questions to the accused as it considers necessary at any stage of the inquiry or trial whereas the second part 526 imposes a duty and makes it imperative on the court to question him generally on the prosecution having completed the examination of its witnesses and before the accused is called on to enter upon his defence. Counsel for accused No.5 submitted that since no circumstance had surfaced in evidence tendered by the prosecution against the said accused, there was nothing for him to explain and hence the learned trial judge committed a grave error in examining the said accused under section 313 of the Code. He submitted that since the examination has to be made under the said provision after the prosecution has examined all its witnesses and rested, it is obligatory on the learned judge to decide which circumstance he considers established to seek the explanation of the accused. He submitted that the obligation to question the accused is a serious matter and not a mere idle formality to be gone through by the trial court without applying its mind as to the evidence and circumstances necessitating an explanation by the accused.

Therefore, counsel submitted, if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence his examination under section 313 of the Code would be wholly unnecessary and improper. In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence. In such a situation counsel for accused No.5 Jinda strongly submitted that his examination under section 313 should be totally discarded and his admissions, if any, wholly ignored for otherwise it may appear as if he was trapped by the court. According to him the rules of fairness demand that such examination should be left out of consideration and the admissions made in the course of such examination cannot form the basis of conviction. Counsel for the accused No.1 also contended that the evidence adduced by the prosecution against the accused was so thin and weak that even if it was taken as proved the court would not have been in a position to convict him and, therefore, it was unnecessary to examine him under section 313 of the Code. Strong reliance was placed on Jit Bahadur Chetri v.

State of Arunachal Pradesh, 1977 Crl.L.J.1833 and Asokan v.

State of Kerala, 1982 Crl.L.J.173. We do not see any merit in these submissions Section 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a 527 view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words `shall question him’ clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The state of examination of the accused under clause (b) of sub-section (1) of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under section 313, the learned judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The learned trial judge is not expected before the examines the accused under section 313 of the code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the court finds that no incriminating material has surfaced that the accused may not be examined under section 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No. 5, and hence the learned trial judge was not justified in examining the accused under section 313 of the Code.

That brings us to the question whether such a statement recorded under section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-section (3) says 528 that the accused shall not render himself liable to punishment if he givens false answers. Then comes sub- section (4) which reads :

“(4). The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.” Thus the answers given by the accused in response to his examination under section 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharasthra v. R.B. Chowdhari, [1967] INSC 116; [1967] 3 SCR 708. This court in the case of Hate Singh v. State of Madhya Bharat, 1953 Crl.L.J.1933 held that an answer given by an accused under section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab.

[1963] 3 SCR 678 this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge Bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685 :

“Under section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under section 342 is primarily to be directed to those mattes on which evidence has been led for the prosecution to ascertain from the accused his version or explanation – if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may “be taken into consideration” at the enquiry of the trial. If the accused person in his examination under section 342 con- 529 fesses to the commission of the offence charges against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.” (Emphasis supplied) Sub-section (1) of section 313 corresponds to sub- section (1) of section 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under clause (b) may also be dispensed with. Sub-section (2) of section 313 reproduces the old sub-section (4) and the present sub-section (3) corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old sub-section (3). Therefore, the aforestated observations apply with equal force.

Even on first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under section 313 of the Code. Under section 12(4) of the TADA Act a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session, albeit subject to the other provisions of the Act.

The procedure for the trial of Session cases is outlined in Chapter XVIII of the Code. According to the procedure provided in that Chapter after the case is opened as required by section 226, if, upon consideration of the record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for reasons to be recorded. If, however, the Judge does not see reason to discharge the accused he is required to frame in writing a charge against the accused as required by section 228 of the Code. Where the Judge frames the charge, the charge so framed has to be read over and explained to the accused and the accused is required to be 530 asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clean, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a date for the examination of the witnesses i.e. the trial of the case.

There is nothing in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial.

But before the trial Judge accepts and acts on that plea he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded under section 313 of the Code. In the present case, besides giving written confessional statements both accused No.1 and accused NO.5 admitted to have been involved in the commission of murder of General Vaidya. We have already pointed out earlier that both the accused have unmistakably, unequivocally and without any reservation whatsoever admitted the fact that they were responsible for the murder of General Vaidya. It is indeed true that accused No. 5 as the driver of the motor cycle, perhaps he desired to keep him out, but accused No. 5 has himself admitted that he was driving the motor cycle with accused No.1 on the pillion seat and to facilitate the crime he had brought the motor cycle in line with the Maruti car so that accused No.1 may have an opportunity of firing at his victim from close quarters. There is, therefore, no doubt whatsoever that both accused No.1 and accused No. 5 were acting inconcert, they had a common intention to kill General Vaidya and in furtherance of that intention accused No. 1 fired the fatal shots. We are, therefore, satisfied that the learned trial Judge was justified in holding that accused No. 1 was guilty under section 302 and accused No. 5 was guilty 531 under section 302/34, IPC.

As pointed out earlier, learned counsel for accused Nos. 1 and 5 contended that although a statement recorded under section 313 of the Code can be taken into consideration in an inquiry or trial since it is not `evidence’ Stricto sensu and not being under oath, it has little probative value. Reliance was placed on R.B.Chowdhari’s case in support of this proposition. The two decisions of the High Courts to which our attention was drawn do not in fact militate against the view which we are inclined to take in regard to the admission of guilt made by the two accused in their statements recorded under section 313 of the Code. In the case of Jit Bahadur Chetri only one witness was examined and immediately thereafter the statement of the accused was recorded under section 313 of the Code. The deposition of the sole witness did not reveal that he had seen the accused causing the injury in question.

The question that was framed was not consistent with this evidence and hence the High Court found that the trial court had acted illegally. It was held that such an answer cannot be construed as pleading guilty within the meaning of the provisions of the Code and hence the learned Magistrate had contrary to law in convicting and sentencing the accused on the basis of that plea. It will thus be seen that the Court came to the conclusion that the accused could not be stated to have pleaded guilty and hence the conviction was set aside. In the other case of Asokan the High Court of Kerala pointed out that in a criminal case the burden of establishing the guilt beyond reasonable doubt lies on the prosecution and that burden is neither taken away, nor discharged, nor shifted merely because the accused sets up a plea of private defence. It was pointed out that if the prosecution has not placed any incriminating evidence such an admission made by the accused will be of no avail unless the admission constitutes an admission of guilt of any offence. In that case also the admission made by the accused read as a whole did not constitute an admission of guilt of the offence charged. On the contrary it was in the nature of a plea of private defence. In such circumstances, the High Court came to the conclusion that in the absence of a unequivocal, unmistakable and unqualified plea of guilt, the Court could not have convicted the accused on the statement made by him under section 313 of the Code. This decision also does not, therefore, help the defence.

The accused were inter alia charged under sections 3(2)(i) or (ii) and 532 3(3) of TADA Act read with sub-rule (4) of rule 23 of the rules framed thereunder. Section 3 provides the punishment for terrorist acts. Section 10 lays down that when trying any offence a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. It is obvious that where an accused is put up for trial for the commission of any offence under the Act or the Rules made thereunder he can also be tried by the same Designated Court for the other offences with which he may, under the Code, be charged at the same trial provided the offence is connected with such other offence. In the instant case, the accused were tried under the aforesaid provisions of TADA Act and the Rules made thereunder along with the offences under sections 120B, 645, 468, 471, 419, 302 and 307, IPC. They were also charged for the commission of the aforesaid offences with the aid of section 34, IPC.

As pointed out earlier under section 12(4) the procedure which the Designated Court must follow is the procedure prescribed in the Code for the trial before a Court of Session. Accordingly, the two accused persons were tried by the Designated Court since they were charged for the commission of offences under the TADA Act. The Designated Court, however, came to the conclusion that the charge framed under section 3 of the TADA Act read with the relevant rules had not been established and, therefore, acquitted the accused persons on that count. It is not necessary for us to examine the correctness of this finding as we also come to the conclusion that capital punishment is warranted. It also acquitted all the accused persons of the other charges framed under the Penal Code save and except accused Nos. 1 and 5, as stated earlier. The accused were also convicted under section 307 and 307/34 respectively for the injury caused to PW 106 Bhanumati Vaidya. Thus the conviction of accused sno.1 and 5 is outside the provisions of TADA Act and, therefore, it was open to the Designated Court to award such sentence as was provided bythe Penal Code. Section 17(3) of the TADA Act makes sections 366 to 371 and section 392 of the Code applicable in relation to a case involving an offence triable by a Designated Court. The Designated Court having come to the conclusion that this was a case falling within the description of `the rarest of a rare’ awarded the extreme penalty of death to both accused Nos. 1 and 5 for the murder of General Vaidya. In doing so, the Trial Court placed strong reliance on the decision of this Court in Kehar Singh & Ors. v. State (Delhi Administration), [1988] INSC 203; [1988] 3 SCC 609. The learned Trial Judge took the view 533 that since the murder of General Vaidya was also on account of his involvement in the Blue Star Operation his case stood more or less on the same footing and hence fell within `the rarest of a rare’ category. We think that this line of reasoning adopted by the learned Trial Judge is unassailable. We may also point out that the accused persons had no remorse or repentance, in fact they felt proud of having killed General Vaidya in execution of their plan and hence we find no extenuating circumstance to make a departure from the ratio of Kehar Singh’s case.

Lastly, placing reliance on the decision of this Court in Allaudin Mian v. State of Bihar, [1989] INSC 127; [1989] 3 SCC 5 the learned defence counsel submitted that in the present case also since the conviction and sentence were pronounced on the same day, the capital sentence awarded to the accused should not be confirmed. In the decision relied on, to which one of us (Ahmadi, J.) was a party and who spoke for the Court, it was emphasised that section 235(2) of the Code being mandatory in character, the accused must be given an adequate opportunity of placing material bearing on the question of sentence before the Court. It was pointed out that the choice of sentence had to be made after giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances etc., before the Court for otherwise the Court’s decision may be vulnerable. It was then said in paragraph 10 at page 21 :

“We think as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.” .lm The above decision was rendered on 13th April, 1989 whereas the present decision was pronounced on 21st October.

1989. Yet contended learned counsel for the accused the Court did not appreciate the spirit of section 235(2) of the Code. The ratio of Allauddin Mian’s case was affirmed in Milkiat Singh v. State of Punjab, JT (1991) 2 SC 190 (paragraph 18).

On the other hand the learned Additional Solicitor General invited our attention to a subsequent decision of this Court in Jumman Khan v. State of U.P., [1990] Suppl. 3 SCR 398. That decision turned on the facts 534 of that case. In that case the Court refused to entertain the plea on the ground that it was not raised in the courts below and was sought to be raised for the first time in the apex court. That decision, therefore, does not assist the prosecution. Reliance was then placed on the third proviso to section 309 of the Code which reads as under :

“Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.” This proviso must be read in the context of the general policy of expeditious inquiry and trial manifested by the main part of the section. That section emphasises that an inquiry or trail once it has begun should proceed from day to day till the evidence of all the witnesses in attendance has been recorded so that they may not be unnecessarily vexed. The underlying object is to discourage frequent adjournments. But that does not mean that the proviso precludes the Court from adjourning the matter even where the interest of justice so demands. The proviso may not entitle an accused to an adjournment but it does not prohibit or preclude the Court from granting one in such serious cases of life and death to satisfy the requirement of justice as enshrined in section 235(2) of the Code.

Expeditious disposal of a criminal case is indeed the requirement of Article 21 of the Constitution; so also a fair opportunity to place all relevant material before the court is equally the requirement of the said article.

Therefore, if the Court feels that the interest of justice demands that the matter should be adjourned to enable both sides to place the relevant material touching on the question of sentence before the Court, the above extracted proviso cannot preclude the court from doing so.

But in the instant case we find that both the accused decided to plead guilty. Accused No.1 had done so at the earlier stage of the trial when he filed the statement Exh.

60A. Accused no. 5 had also made up his mind when he filed the statement Exh. 922 even before his examination under section 313 of the Code. Accused No. 1 had reiterated his determination when he filed the statement Exh. 919. Thus both the accused had mentally decided to own their involvement in the murder of General Vaidya before their statements were recorded under section 313 of the Code. Not only that their attitude reveals that they had resolved to kill him as they considered him an enemy of the sikh community since he had desecrated 535 the Akal Takht. They also told the trial court that they were proud of their act and were not afraid of death and were prepared to sacrifice their lives for the article of their faith, namely, the realisation of their dream of a separate State of Khalistan. It is thus apparent that before they made their statements admitting their involvement they had mentally prepared themselves for the extreme penalty and, therefore, if they desired to place any material for a lesser sentence they had ample opportunity to do so. But after the decision of this Court in Kehar Singh’s case and having regard to the well planned manner in which they executed their resolve to kill General Vaidya, they were aware that there was every likelihood of the Court imposing the extreme penalty and they would have, if they so desired, placed material in their written statements or would have requested the Court for time when their statements under section 313 of the Code were recorded, if they desired to pray for a lesser sentence. Their resolve not to do so is reflected in the fact that they have not chosen to file any appeal against their convictions by the Designated Court. We are, therefore, of the view that in the present case the requirements of section 235(2) of the Code have been satisfied in letter and spirit and no prejudice is shown to have occurred to the accused. We, therefore, reject this contention of the learned counsel for the accused.

For the above reasons, we are of the opinion that the decision of the learned Trial Judge is based on sound reasons and is unassailable. We, therefore, confirm the conviction of accused No.1 under section 302 and 307, IPC and accused No.5 under section 302 and 307, IPC, both read with section 34, IPC and the sentence of death awarded to both of them. We see no merit in the State’s appeal against the acquittal of the other accused persons of all the changes levelled against them and accused Nos. 1 and 5 on the other counts with which they were charged and accordingly dismiss the stage’s Criminal Appeal No. 17 of 1990. The Death Reference No. 1of 1989 will stand disposed of as stated above.

Before we part we must express our deep sense of gratitude for the excellent assistance rendered to us by the learned Additional Solicitor General, the learned counsel for the State of Maharashtra and the learned Advocates appointed as amicus curiae to represent the accused persons.

But for their excellent marshalling and analysis of the evidence which runs into several volumes we may have found it difficult to compress the same and reach correct conclusions. A word of special praise is due to the 536 learned advocates Shri H.V.Nimbalkar and Shri I.S.Goyal both of whom,sacrificed their practice at Pune and attended to this case from time to time devoting their valuable professional hours at considerable personal inconvenience.

Their devotion and dedication is also evident from the fact that apart from making twenty trips to Delhi they spent a seizable amount of Rs. 29,000 from their own pockets as against which they have received a sum of Rs. 5,000 only on 29th October, 1991. At one point of time they had also difficulty in procuring accommodation in Maharashtra Sadan till we passed orders in that behalf. such devotion and dedication enhances the image and prestige of the legal profession. Apart from the time actually spent on the aforesaid twenty occasions in this Court one has to merely imagine the number of hours they must have devoted for preparing the defence. We direct the State of Maharashtra to pay the outstanding amount of Rs. 24,000 which they have spent for travel and lodging and boarding expenses and we also direct that they together be paid a further sum of Rs.

25,000 by way of professional fees for rendering service as amicus curiae. The said amount will be paid to them within one month from today.

V.P.R. Death Reference disposed of/Appeal dismissed.

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