Right to fair trial is the fundamental right of an accused guaranteed under Article 21 of the Indian Constitution. In Husainara Khatoon etc. the Apex Court has held that a fair trial is the most important aspect of the criminal justice system which should not be compromised at any cost. Right to fair trial assures the accused of an opportunity so that he can defend himself and S. 207 Cr.P.C plays an important role in making the documents accessible to the accused that form a part of the investigation. It is the obligation on the Court to provide the relevant documents or extracts in cases where proceedings have been instituted on a police report, so that the accused get to know about the charge levied against him and also about the material through which the charge is going to be corroborated by the prosecution. The duty to supply the copy of FIR, Police report, Statements recorded U/S 161 Cr.P.C., Statements recorded U/S 164 Cr.P.C or any other document on which the prosecution wants to rely has been casted upon the Magistrate and if the Magistrate fails to comply with the procedure laid down then it is a violation of the fundamental right of the accused enshrined under the Indian Constitution. In Kishore v. Sunanda Prasad 2002 CrLJ 802 MP, it was held that the object of S.207 Cr.P.C is to appraise the accused of the whole case against him. It is pertinent to mention that the IO of any case has no option but to submit all the documents which he has procured during the investigation and upon which prosecution will rely upon. Section 173(5)(a) Cr.P.C mandates that the investigating officer shall forward all the documents or relevant extracts on which the prosecution proposes to rely against the accused concerned along with the police report to the Magistrate. A conjoint reading of Section 173(5), 173(6) and first proviso attached to Section 207 of Cr.P.C. leaves no scope of doubt that it is the bounden duty of the police officer to forward to the Magistrate all the statements recorded under sub-section (5)(b) of Section 173 of Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under Section 207 of Cr.P.C. by furnishing copies of such statements to the accused. In Arvind Kejriwal v. State of NCT, the Hon’ble Delhi High Court held that it is the prime duty of the Investigating Agency to conduct free and fair investigation, thereafter, bring to the notice of the Court all the evidences collected without pick and choose. Without supply of documents it will be impossible for any accused to defend himself and any trial without the compliance of S.207 Cr.P.C will be an unfair trial It is germane to mention here that it is only when the Magistrate is satisfied that the documents are voluminous then he shall instead of furnishing the accused a copy, he will direct that he will only be allowed to inspect it either personally or through a pleader in court or else under any circumstances the magistrate have to comply with the provisions of Section 207 Cr.P.C even with the advent of technology many courts have started directing the prosecution to make an e-copy of all the documents and provide a soft copy of the documents in order to ensure the compliance of S.207 Cr.P.C.

In Manjeet Singh Khera vs. State of Maharashtra: (2013) 9 SCC 276, whereby the Hon‘ble Supreme Court affirming to its earlier decision in V.K. Sasikala vs. State: (2012) 9 SCC 77 held that “the Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After conclusion of investigation and before submission of the report to the court under Section 173 Cr. PC, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall under two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many at times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the court only those documents which support the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the court under Section 173(5) Cr. PC but were not relied upon by the prosecution and the accused wanted copies/ inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of a fair trial which Article 21 of the Constitution guarantees to the accused.” The accused is entitled to all the documents irrespective of the facts that it is favouring him. The Hon’ble Delhi High Court in Ashutosh Verma vs. CBI: 2014 SCC OnLine Del 6931 has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defense and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused.

SUPPLY OF DOCUMENTS WHEN THERE IS A SUPPLEMENTARY INVESTIGATION- When the IO has been granted permission of further investigation U/S 173 (8) Cr.P.C. and when the supplementary report contains the facts relating to the accused of preliminary charge sheet then the magistrate is bound to provide the copy of the supplementary chargesheet or supplementary police report to the accused.

CONTENTS OF PEN DRIVE/MEMORY CARD WILL AMOUNT TO BE TERMED AS DOCUMENT WITH REGARD TO S.207 CR.P.C. – It is pertinent to mention that any content to be termed as a document can be determined by its nature and not by the place where it is stored. It depends upon the information which is inscribed whether it is relevant or not, of course to be decided by the magistrate. Be that as it may, Section 3 of the Indian Evidence Act, 1872 elaborates that a “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and Section 2(1)(t) of the 2000 Act reads “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computergenerated micro fiche;’’ In Dharambir v. Central Bureau of Investigation , where, inter alia, the Supreme Court held [paras 13 (i) and (ii)] 13 (i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.(ii) Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA. After referring to both the sections and analyzing Dharambir (supra) it can be reduced that contents of pen drive/memory card/audio call/ video footage will be termed as a documents and it will be an obligation of the magistrate u/s 207 Cr.P.C to provide the copy of the same to the accused without delay.

RIGHT OF ACCUSED V. RIGHT TO PRIVACY OF THE VICTIM, – There are no specific guidelines with regard to protection of the right to privacy of the victim. The Hon’ble Supreme Court got an opportunity to deal with the said issue in P.Gopalkrishnan @Dileep v. State of Kerela & Anr. wherein the Hon’ble Supreme Court held that ..’’ contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial.“ For the first time Hon’ble Apex Court denied the supply of any document which violates the privacy of the victim.

SUPPLY OF OFFICIAL DOCUMENTS U/S OFFICIAL SECRETS ACT- In cases where the documents comes under the umbrella of Official Secrets Act in this regard the Apex Court has settled the law that the accused will not be deprived of his right U/S 207 Cr.P.C even if the documents of the cases comes under the preview of OSA. Recently, Delhi High Court in Ujjal Dasgupta v. State observed that, “ relying on the decision of the Supreme Court in Satyen Bhowmik observed that , “the objections raised by the prosecution in the present case are not well founded in law. As long as the prosecution is relying upon the documents forwarded by it to the trial Court along with the chargesheet it will not be open to the prosecution to deprive the accused the copies of those documents. As explained in Satyen Bhowmick merely because the case is under the OSA, the legal position cannot be different. The only difference is that the prosecution can insist and rightly so that neither the accused nor the lawyer of the accused will be permitted to make the documents public or pass them on to any person or disseminate them in any manner whatsoever. If in fact either the accused or the lawyers of the accused do not observe this prohibition they run the risk of committing an offence under the OSA”.

It is an inseparable and essential component for a fair trial to provide the copy of the document’s U/S 207 Cr.P.C and to upheld the right conferred under Article 21 of the Constitution of India. The object of Section 207 Cr.P.C is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial and has no surprise when trial commences. After having gone through the catena of judgments by the Hon’ble Supreme Court and High Courts around the country it can be concluded that it is the duty of the Court to supply copies of documents to the accused. Section 207 casts a duty on the Magistrate to supply to the accused, copies of the police report, the first information report recorded under Section 154, the statements recorded under Section 161(3), the confessions and statements, if any, recorded under Section 164 and any other document or relevant extract thereof, which is forwarded to the Magistrate along with police report.

Inputs by Adv. Shahnawaz Abdul Malik, Adv. Karam Pratap Singh, Aniket Rai, Student UPES.

There are no specific guidelines with regard to protection of the right to privacy of the victim. The Hon’ble Supreme Court got an opportunity to deal with the said issue in P.Gopalkrishnan @ Dileep v. State of Kerela & Anr. wherein the Hon’ble Supreme Court held that ..’’ contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial

“The discrimination begins even before one enters law school. Most of the top law schools, which offer the five-year integrated law course, conduct admissions through a competitive test which is only in English, besides English also being a separate component of testing. The effect of this is that only the privileged students with access to high quality English medium education are able to qualify for it, while the underprivileged students whose earlier education has been in the national or regional languages and who aspire to enter into the judicial services are deprived of the learning at these institutions. As a result, these national law schools turn out candidates who are vying for lucrative placements at private law firms, which also has a consequence on the legal education to those who join the judiciary.”

These enlightening, enriching and enlivening words which have been expressed most eloquently, elegantly and effectively have been expressed by none other than Justice Dr D.Y. Chandrachud who is not just an eminent senior Judge of the Supreme Court but also is in line to become the future Chief Justice of India from November 10, 2022 to November 10, 2024. So what he says can certainly not be dismissed lightly as a view by just any other person. It has to be taken most seriously by our law makers and given a serious consideration without any further delay.

Needless to say, Justice Dr DY Chandrachud was speaking at the virtual launch event of CEDE (Community for the Eradication of Discrimination in Education and Employment), which is a network of lawyers, law firms, Judges and other organisations and individuals who are committed towards reforming the Indian law profession. What Justice Dr D.Y. Chandrachud has suggested is in fact the crying need of the hour also! Why should there be any kind of discrimination on the basis of language?

To put it mildly: Hindi is spoken by maximum people in our country and is most popular also. Similarly regional languages are spoken by many people as different states have different regional languages. Why then should those individuals who are well versed in Hindi or in any other regional language but not in English be made to mandatorily appear in English for seeking admission in any national law school and similarly why those who aspire to join judicial service be made to suffer similarly as they fail to gain admission in the national law school due to not being well versed in English. How can such senseless discrimination be ever justified by anyone? But this is exactly that has been perpetuated in India even 74 years after the colonial British rulers have left India in 1947!

As if this is not enough, we even see some states like Delhi, Haryana among others where the medium of exam for judicial services is only English and not Hindi or any other regional language! Why should those who speak Hindi or some other regional language be made to suffer and kept in the cold just because they are not well versed in English? It is high time and our law makers must deliberate, debate and discuss on this thread bare and take the right decision so that those who have Hindi medium or any other regional language are not made to suffer in the cold!

Adding more to what he stated above, Justice Dr D.Y. Chandrachud added that till the last year, the Common Law Admission Test (CLAT) incorporated questions which tested logical reasoning capabilities that required the use of sight and which in turn discriminated against the visually challenged candidates. Justice Chandrachud also sought to point out that, “Although the National Law School consortium has now assured that this would not happen in the future, the replication of this commitment in reality is awaited.”

It cannot be glossed over that Justice Dr DY Chandrachud then also very rightly and remarkably pointed out that, “Even if a student clears this exam, then begins the secondary graduation – the choice of law school. There is a real and perceived bias among various law schools and students of the top tier National Law Universities are deemed to be better on account of their law school affiliation. But these institutions are expensive and scholarships, or even loan based scholarships, may not suffice. So one exam taken by an 18-year-old becomes a means of differential treatment which has consequences on their law school experience and life trajectory thereafter.”

More damningly, Justice Chandrachud then further goes on to explain that it is within the law school where begins the third gradation that determines which students thrive and succeed. He made it a point to mention without mincing any words that students hailing from Dalit, adivasi and other marginalized sections are often found to be relatively behind not only in terms of academic grades, but also other extracurricular activities like moots, debates and internship.

It cannot be also lost sight of that Justice Dr D.Y. Chandrachud then seeks to point out forthrightly that, “The explanation which is most commonly rendered for this is that they are just not coping with the pressure. Nothing could be further from the truth! The fact is that the natural privilege which their counterparts have been entitled to manifests into their confidence to participate and even seek training and mentorship, while there is just not enough peer and faculty support for the students from marginalized backgrounds. They are deprived of publishing and research assistance, internships offered are often in tier 1 cities and do not pay a living stipend, as a result of which students who do not hail from well-off backgrounds dismiss these opportunities.”

Not stopping here, Justice Dr Chandrachud then further goes on to canvass that the fourth gradation which commences at the stage of employment after law school. The students from the marginalised backgrounds are underrepresented in law firms. Even employment at the chambers of advocates /senior advocates are based on informal references through privileged networks and those students who hail from families having roots in the legal profession have an edge over the others.

In summation, Justice Chandrachud then holds that, “So a lawyer, who is 23-25 years old at the embarkment of his career has already been knocked down 4 gradations in relation to his peers, for no fault of his!”

As if this is not enough, it must be further added here that we see how lawyers who are unable to practice in either Supreme Court or in different High Courts and their Benches and practice in different district courts are discriminated against most blatantly. Bar Council of India also keeps demanding proof from lawyers of district court that they are practising lawyers. First it is various High Court Bar Councils who demand the same and we saw the same being done in 2018 and for five years fresh Certificates were issued as practicing lawyers after verifying all the relevant documents. But why all the High Court Bar Councils as also the Bar Council of India who identify the ‘practicing lawyers’ consider them “totally worthless” and “totally irrelevant” to be considered for appointment as High Court Judges or Supreme Court Judges? Why only advocates practicing in High Courts or Supreme Court are considered eligible for Judgeship in both High Courts as also in the Supreme Court?

It must also be asked: Why no necessary amendments have been made so far in our Constitution on Articles which pertain to conditions for appointment as High Court Judges and Supreme Court Judges? Why even after 25 years of practice in District Court are lawyers not considered competent enough to be considered for Judgeship in High Courts and Supreme Court? Why this most worst, raw and senseless discrimination between lawyers of District Courts on the one hand and lawyers of High Courts and Supreme Court on the other hand?

What’s more, why a jurist is eligible to be appointed as a Supreme Court Judge but not eligible to be appointed as a High Court Judge or a District Court Judge? Why no distinguished jurist has been appointed as a Supreme Court Judge till date? Why no use has been made of Article 124(3)(c) which stipulates for appointment of a distinguished jurist as a Supreme Court Judge? Is there no distinguished jurist in India from 1950 till 2021?

Briefly stated: Why Article 217 of the Constitution which provides for appointment as Judges of the High Court not be similarly amended? Why should Article 217(2) not be amended suitably to meet the present circumstances? Why should distinguished jurists not be eligible for appointment as Judges of the High Court?

Also, it would be worthwhile to ask: Why should District Court lawyers not be made eligible for appointment as High Court Judges and Supreme Court Judges? Why when Bar Council of India (BCI) which is always at the forefront in demanding proof from District Court lawyers to consider them eligible as “practising lawyers” not speak up at all when it comes to them for being considered as High Court Judges and Supreme Court Judges? Why should they be totally excluded from Judgeship most unfortunately as we see from 1947 till 2021 even if they practice for 25 years or 30 years or 35 years or 40 years or 45 years or 50 years?

Truly speaking, it must also be asked: Why can’t suitable changes be made to meet the present circumstances? Why can’t BCI take the initiative in this regard? Why can’t parity be brought about among lawyers practicing in different courts whether they are in District Court or High Court or Supreme Court?

No doubt, it is the bounden duty of the BCI to speak up for the rights of the District Court lawyers. Why should the District Court lawyers not be empowered when they deserve to be? Why even after submitting proof that they are practicing lawyers are they outrightly banned from being considered as Judges of a High Court and Supreme Court?

It is high time and now BCI too must speak up vociferously for their rights and not just keep asking only for proof, proof and more proof for being assured that they are “practising lawyers” and not “non-practising lawyers? All the Supreme Court lawyers too apart from BCI must now seriously consider this that why are “practising lawyers” of District Court not considered for being appointed as High Court Judges and Supreme Court Judges? Why this brutal, raw and senseless discrimination has been perpetuated from 1947 till 2021?

A question worth billion dollars is: Should this even now be continued in perpetuity even though it makes just no sense? Why are “practising lawyers” of district courts being punished for no fault of theirs? Is it a crime that they are practising in district courts? Why then are they not considered for being appointed as Judges of High Court and also Judges of Supreme Court?

Bluntly put: Why inspite of turning 45 or 46 or even 50 or even 55, the lawyers of district court are considered eligible only for appearing in the Higher Judicial Service exams which requires just 7 years experience but that’s all for them and still are not considered eligible further for becoming either High Court Judges or Supreme Court Judge? How on earth can such a raw discrimination be ever permitted? Why many of competent district court lawyers like my learned friend late Yogesh Sharma who inspite of topping in UP Higher Judicial Service exam securing 4th rank and also practising continuously for 20 years with utmost brilliance in District Court in Meerut Bar aged around 45 years when he topped in 2020 which can be independently verified also are considered totally ineligible for appointment as High Court Judges which is bound to deject them to a great extent also yet they suffer quietly? This is what pinches the practicing lawyers of District Court the most but for which the Bar Council of India or the Supreme Court Bar Association or even the High Court Bar Associations never seriously think even for a second of doing something concrete so that those who practice sincerely in District Courts get their due by being appointed very rightly as Judges of High Court and Supreme Court and remain busy only in asking for proof that they are “practising lawyers”! But now things must change and a good beginning has been made by Justice Dr D.Y. Chandrachud!

Simply put: What purpose does it serve if you shut the doors of becoming High Court Judges and Supreme Court Judges on them straightaway? It is high time and all such raw discriminations in legal field like this including those pointed by Justice Dr DY Chandrachud must now be consigned to the flames and a new beginning must be made as early as possible so that some damage can be limited to some extent. All the key players involved in doing this which includes our law makers, BCI among others must certainly play an active role to ensure that this is done at the earliest so that our legal field attracts the best talent for becoming Judges and lawyers not just in Supreme Court and High Courts but also in District Courts and there is no discrimination on the basis of language or college or university or court!

It certainly goes without saying that, “Lawyers are lawyers” and why should there be discrimination of any kind between lawyers hinging on where he/she is practising in some District Court or High Court or Supreme Court? Similarly why should individuals with exclusive English background be given priority only and why should those with Hindi medium or any regional language be straightaway barred from appearing in entrance exam or judicial service exam with language of their choice? Why BCI never speaks up on this?

As we see, Justice Dr DY Chandrachud of the Apex Court has like an experienced doctor very rightly caught hold of the “raw nerve” and it is high time and what he has pointed out must now be addressed promptly along with the other serious shortcomings as already illustrated above! This will definitely go a long way in ensuring that our legal field and judicial system remains absolutely fit to meet the present circumstances in the best possible manner! It cannot be kept in cold storage any longer.

Also, the key recommendations of the Indian Law Commission which requires implementation like creating more High Court Benches especially in big states as recommended by 230th report of Law Commission of India made in 2009 and 229th report of creating regional Benches of Supreme Court must also be implemented at the earliest so that our legal system benefits as a whole and not just one or two states as most unfortunately we see right now in our country which is nothing but a status quo since last more than 74 years! Justice Dr DY Chandrachud has set the cat among the pigeons and one fervently hopes that our law makers will certainly make the requisite corrections at least now as suggested very rightly by him!

Sanjeev Sirohi, Advocate.

A glimmer of hope has arisen towards the beginning of a resolution of the centuries-old Kashi Vishwanath Temple-Gyanvapi Mosque dispute. Recently, a district court in Varanasi has directed the Archaeological Survey of India (ASI) to constitute a five-member committee to conduct “a comprehensive archaeological survey” of the disputed site in order to ascertain whether the mosque is a superimposition, alteration or addition over any other religious structure, or structurally overlapped with such other structure.

Moreover, it directed that the ASI committee shall trace whether any hindu temple ever existed before the mosque was built, added or superimposed on the disputed site. Further, if the committee finds that a hindu temple existed, the committee is to determine which hindu deity or deities did the temple belong to.

As per the Places of Worship Act, 1991 (‘POW Act’), courts have to maintain a ‘status-quo’ over disputes relating to places of religious worship before the year 1947, except the Ayodhya dispute. On October 18, 1997, a civil court in Varanasi had ruled that the suit was not barred under Section 4 of the POW Act. However, a revisional court on September 23, 1998, had remanded the suit back to this court with a direction to re-adjudicate whether the suit was barred under the said legislation only after considering the evidence forwarded by all the parties.

Assuming that the ASI does discover the existence of a hindu temple belonging to a deity and the court accepts the ASI’s findings, and consequently, the court finds that the suit is not barred under the POW Act, a legal analysis leads one to conclude that the entire disputed site should be handed over to the presiding deity under the management of its custodians or its next friends by the court.

The Indic civilizational matrix is a large network of sacred spaces, inter-weaved together into a lively and “intricately connected” landscape. Harvard professor Diana L. Eck coins this network of holy pilgrimages as a “sacred geography”, which is imprinted across the length and breadth of Bharat as living manifestations of the deities of the Hindu pantheon. These sacred spaces, referred as Kshetras or Tirthas, are reverential symbols for the devotees who repose their faith in the existence of their deities therein. These devotees may be regarded as what the Cambridge scholar Rajat Kanta Ray calls “felt communities”, groups who rest their beliefs and link their dignity with that of the deities. An act of remedial hermeneutics begins with the acknowledgement of this socio-cultural reality. It must be stated to the credit of the Hon’ble Supreme Court that it has evolved the jurisprudence on legal identity and rights of deities which can be read largely in consonance with the idea of sacred geography. The deities’ rights over their sacred spaces have been recognized by the Supreme Court, as we shall discuss below.

As noted by the Supreme Court in Ayodhya decision ((2020) 1 SCC 1), evolution of legal personality such as a hindu deity/hindu idol was recognized by the courts for over three-centuries in both colonial and post-independence India, in order to respect and give effect to the rights of religious devotees. By recognizing a hindu deity, the pious purpose of dedication of prayers or property to the deity by its devotees is fulfilled. The fundamental right to religion of a devotee is also protected by enabling the deity’s custodian or next friend, to conduct prayers, practices and perform rituals which are associated with the deity.

In context of the Kashi Viswanath dispute, assuming that there did in fact exist a temple before the mosque was established, the hindu devotees are being unconstitutionally deprived of their right to worship the hindu deity. Alternatively, there also exists the possibility that there is no hindu temple beneath the mosque, and therefore, the mosque committee should continue to exercise their rights over the land. However, it is impossible to conclude whether a hindu temple or structure existed before the mosque, unless and until a court of law makes a determination on this point. As long as this uncertainty persists, there will always be communal tensions over the disputed site.

The Ayodhya decision shows a harmonious way out of this quarrel over history. It has held that the formlessness, absence or desecration of the hindu idol would not deprive the deity of its juridical identity. Even if the deity has been present intermittently, that of itself would not create a hindrance in the recognition of the deity’s legal personality. In Shiromani Gurdwara case ((2000) 4 SCC 146), the Supreme Court pertinently observed that judicial scrutiny of religious faith is untenable and that the juristic personality of deities isn’t meant to be restricted “in any defined circle”. It even went on to observe that “with the changing thoughts, changing needs of the society, fresh juristic personalities were created from time to time”. In a catena of judicial precedents, the faith of devotees has been a crucial factor in the conferment of a legal personality upon the deity.

The idea of sacred spaces amalgamates well with the existing jurisprudence on legal identity of deities, and makes a compelling case for the success of claims brought on behalf of the deities to reclaim their lost possessions. The present legal tussle could be adjudicated by the court in line with the Ayodhya decision, by recognizing and allowing the claims of the hindu deity, i.e., Lord Vishveshwar or Lord Shiva, over the disputed land and providing adequate compensation and an alternate land for the building of a mosque for the representatives of Gyanvapi Mosque in accordance with the precedent set by the Ayodhya judgment. Just as the Ayodhya judgment was well received by most sections of the Indian society, this would also ensure that the law of the land is upheld while maintaining communal harmony within our social fabric.

In a groundbreaking judgment which is also a grand victory for advocates, the Kerala High Court has just recently on March 30, 2021 in a latest, learned, laudable and landmark judgment titled Adv KG Suresh vs The Union of India and 3 others in WP(C)No. 21946 of 2011(S) has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). It also rightly held that, “Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961.” A two Judge Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced this pathbreaking judgment thereby allowing a writ petition filed in 2011.

To start with, the two Judge Bench of Chief Justice S Manikumar who has authored this notable judgment for himself and Justice Shaji P Chaly of the Kerala High Court sets the ball rolling by first and foremost observing in para 1 that, “Petitioner, claiming to be an Advocate practicing in the Pathanamthitta courts, has filed the instant writ petition, seeking the following reliefs:-

“(i) Issue a writ, order or direction to declare that Section 17 of the Maintenance & Welfare of parents and Senior Citizens Act, 2007, is ultra vires the Constitution, and void, repugnant to Section 30 of the Advocates Act, 1960.

(ii) Issue a writ of mandamus or any appropriate writ, order or direction, declaring the right of the Advocates / Legal practitioners to represent the either parties before the Tribunal / Appellate tribunals / court, constituted under Act 56 of 2007.””

To put things in perspective, the Bench then enunciates in para 2 that, “Facts leading to the filing of this writ petition are that petitioner has challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (Act 56 of 2007). He has contended that the said provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961, which speaks about the right of advocates to practice.”

To be sure, the Bench then points out in para 3 that, “Petitioner has further stated that Government of India have notified Section 30 of the Advocates Act, 1961, with effect from 15.06.2011, which according to him, is a subsequent legislation and overrides Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. According to him, by virtue of Section 30 of the Advocates Act, Section 17 of the Act 56 of 2007 is invalid.”

While elaborating further, the Bench then elucidates in para 4 that, “Petitioner has further stated that as per Section 30 of the Act, every advocate shall be entitled, as of right, to practice before any Court, Tribunal or person, legally authorised to take evidence. The said provision also enables the lawyers to practice in the courts across the country, irrespective of their enrollment in any Bar Council, without the need to transfer licence to their desired States.”

Furthermore, the Bench then states in para 5 that, “Referring to Sections 6(4) and 8(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, petitioner has stated that the Tribunal is empowered to take evidence and conduct inquiry, and, therefore, an Advocate and Legal Practitioner, is entitled as of right to appear before the Tribunal.”

Going ahead, the Bench then reveals in para 6 that, “Petitioner has further stated that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, came into effect from 31.12.2007. By virtue of Section 1(3) of the Act, 2007, it came into force in the State of Kerala with effect from 24.09.2008, as per Notification SRO 999/2008.”

Be it noted, the Bench then observes in para 7 that, “Advocates for the last so many years have been claiming the right to practice in all the courts, as of right, and have been agitating for the enforcement of Section 30 of the Act in that behalf. Almost 50 years have passed since the Act was enacted and the provisions have been brought into force only w.e.f 15.06.2011.”

Seen in this light, the Bench then points out in para 8 that, “In this context, petitioner has relied on the decision in Aeltemesh Rein v. Union of India and Others [AIR 1988 SC 1768], wherein a writ of mandamus was issued to the Central Government, to consider, within six months, whether Section 30 of the Advocates Act, 1961 should be brought into force or not. The Hon’ble Supreme Court, however, held that it was the discretion of the Central Government to bring this Section into force by issuing a notification in that behalf.”

As a corollary, the Bench then puts forth in para 9 that, “Petitioner has further stated that pursuant to the abovesaid direction of the Hon’ble Apex Court, rendered in the year 1988, Government of India have brought Section 30 of the Advocates Act, 1961, in force only on 15.06.2011, and therefore, advocates can practice as a matter of right in all Courts and Tribunals.”

Significantly, the Bench then quite lucidly mentions in para 44 that, “Section 30 of the Act speaks about rights of advocates to practice and the same reads thus:

“30. Right of advocates to practise.― Subject to the provisions of this Act, every advocate whose name is entered in the 3 [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends, ―

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.””

No less significant is what is then observed in para 45 that, “In exercise of the powers conferred by sub-section (3) of Section 1 of the Advocates Act, 1961, the Central Government have appointed 15th day of June, 2011 as the date on which Section 30 of the said Act shall come into force.”

What is also worth noting is that it is then most rightly and remarkably observed in para 50 that, “Contention of the learned counsel for the petitioner and the Bar Council of India, that the Tribunals are clothed with the powers of Civil Courts, for the purpose of taking evidence, enforcing attendance, production of evidence, and that denial of legal assistance to the parties before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, requires consideration, for the reason that parties to the lis are not expected to know the nuances of law, evidence, both oral and documentary , to be produced.”

Needless to say, it is then underscored in para 51 that, “Legal aid is a constitutional right guaranteed under Article 21 of the Constitution of India and legal assistance cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties.”

More significantly, the Bench then minces no words to observe in para 52 that, “Contention of the Union of India, that since the main intention of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to provide speedy and cost effective mechanism to the parents/senior citizens, to claim maintenance from their children/grandchildren/relatives, as the case may be, and participation of advocates in the proceedings will jeopardize this objective, cannot be accepted, for the reason that mere engagement of a lawyer would not delay the process of adjudication of a dispute before the Maintenance Tribunal.”

Adding more to it, the Bench then observes in para 53 that, “Cost effective mechanism, cited as one of the reasons for denying legal assistance, also cannot be accepted, for the reason that if any litigant is enable to engage a lawyer of his choice, Legal Services Authority, constituted under the Legal Services Authorities Act, 1987, comes into the aid of such litigant, by engaging a lawyer to assist him.”

Simply put, the Bench then also makes it plainly clear in para 54 that, “Union of India, cannot undermine the role of the Legal Services Authority, and the lawyers engaged by them, to assist the litigants, in comparison to the lawyers to be engaged by the children/ grandchildren/ relatives, solely on the ground that they are financially in a better position to avail the services of the best advocates.”

Of course, the Bench then concedes in para 55 that, “True that the legislation, Maintenance and Welfare of Parents and Senior Citizens Act, 2007, has envisaged that the disputes and differences should be resolved amicably and in that context, laid emphasis on the role of a Conciliation Officer, nominated by the Tribunal, but he will not be a substitute for a lawyer.”

What’s more, the Bench then also makes it amply clear in para 56 that, “Contention of the Union of India, that the makers of the Act foresaw that engagement of legal practitioners to represent cases will prolong the matter and will be more of a harassment for the parents in their last phase of life as judgment will be delayed, is wholly unacceptable.”

Finally and far most significantly, the Bench then holds in para 57 that, “As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961. In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007. Accordingly, this writ petition is allowed.”

No doubt, this historic judgment is a victory not just of one or two advocates but of advocates as a whole because this will certainly benefit the entire class and not just one or two advocates only. It must be also mentioned here that the petitioner who is an advocate KG Suresh of Pathanamthitta instituted Public Interest Litigation in the year 2011 seeking a declaration that Section 17 was unconstitutional in light of the newly introduced Section 30 of the Advocates Act. Upon consideration of submissions, the Kerala High Court held that Section 30, being introduced and notified in 2011 had an overriding effect on Section 17 of the Maintenance Act. Of course, Kerala High Court thus clearly, cogently and convincingly holds that advocates are entitled to appear in Maintenance Tribunals and bar on legal representation is unconstitutional. Very rightly so!

Sanjeev Sirohi, Advocate

In a progressive, peculiar, penetrating and path-breaking judgment titled Treasa Josfine vs State of Kerala in WP (C). No. 25092 of 2020 (J) delivered on 9 April, 2021, the Kerala High Court observed most rightly, remarkably and reasonably that a woman who is fully qualified cannot be denied of her right to be considered for employment on the ground that she is a woman and because the nature of the employment would require her to work during night hours. A Single Judge Bench of Justice Anu Sivaraman who delivered this brief, brilliant, bold and balanced judgment put forth in simple, straight and suave words that, “Protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible.” We thus see that Kerala High Court very rightly quashes “Only males can apply condition”!

To start with, a Single Judge Bench of Justice Anu Sivaraman who authored this notable judgment of Kerala High Court first and foremost dwells on the prayer in the writ petition in para 1 which stipulates that, “The prayers in this writ petition are as follows :-

“(i) Issue a writ of mandamus or any other appropriate writ, order or direction to call for the records relating to Exhibit P7 notification dated 24.10.2020 for the post of safety officer and quash the same as illegal and unconstitutional.

(ii) Issue a writ of mandamus or any other appropriate writ, order or direction to declare that section 66(1)(b) of the Factories Act, 1948 is unconstitutional as violative of Article 14, 15 and 16 of the Constitution.

(iii) Issue a writ of mandamus or any other appropriate writ, order or direction to the second respondent to issue a fresh notification to the post of safety officer, incorporating the qualified Women Candidates.””

While elaborating on the facts of the case, the Bench then puts forth in para 3 that, “It is submitted that the petitioner is an engineering graduate in Safety and Fire Engineering. The 2nd respondent, a public sector undertaking under the State of Kerala, has engaged the petitioner as Graduate Engineer Trainee (Safety) and the petitioner had worked as such for the period from 19.11.2018 to 18.11.2019 and from 26.11.2019 to 25.5.2020. It is submitted that there is a permanent post of Safety Officer available in the company. By Ext.P7, a notification was published inviting applications for the said post. However, it is stated in the notification that only male candidates need apply for the post. The petitioner has approached this Court challenging the said provision in the notification on the ground that it is discriminatory and that the right of the petitioner for being considered for appointment as Safety Officer is violated due to the said provision. The petitioner further contends that any provision as contained in Section 66(1)(b) of the Factories Act, 1948 to the extent it denies the right of the petitioner to participate in the selection for appointment as Safety Officer is violative of the valuable rights guaranteed to the petitioner under Articles 14, 15 and 16 of the Constitution of India and is, therefore, liable to be set aside.”

While elaborating further, the Bench then observes in para 4 that, “A counter affidavit has been placed on record by the 2nd respondent. It is stated that the post of Safety Officer is a statutory post and the provisions of the Factories Act have to be complied with while issuing notification for filling up the said post. It is submitted that as per Section 66(1)(b) of the Factories Act, 1948, women employees shall not be required or permitted to work except between 6 a.m. and 7 p.m. It is submitted that Graduate Engineer Trainee (Safety) is required to work only from 9 a.m. to 5 p.m. However, it is submitted that Safety Officer is a round the clock post and that the person engaged as Safety Officer will have to work even during night time, if required. It is stated that the company had, vide letter dated 22.7.2020, sought the opinion of the Director of Factories and Boilers, Kerala about the possibility of including women candidates in the recruitment process for selection to the post of Safety Officer by Ext.R2(a) letter. However, the Director had clarified that women cannot be engaged in factories beyond 7 p.m. and that therefore, permission cannot be accorded for considering women for the appointment. It is, therefore, contended that there is no illegality in excluding women from applying for the post of Safety Officer. It is stated that Section 66(1)(b) is a social welfare measure intended to safeguard the security and health of employees and cannot be held to be discriminatory or violative of the petitioner’s rights. It is further contended that the vires of Section 66(1)(b) had been considered by a Division Bench of this Court in Leela v. State of Kerala [2004 (5) SLR 28] and it was held that the provision is only a protective measure intended for the welfare of women and that it does not deny opportunity or livelihood to women employees. It is submitted that there is every power in the Government to regulate working hours of employees to meet the concerns of welfare of the employees and the larger public interest and that therefore, the provision is perfectly legal and valid. It is submitted that the respondents have not denied opportunity to the petitioner and were only obeying the statutory mandate of the Factories Act. It is further contended that no provision in an enactment can be struck down as being arbitrary or unreasonable and that the issue stands covered against the petitioner. Several decisions of the Apex Court are also relied on in support of the said contention.”

As we see, the Bench then states in para 5 that, “A reply statement has been placed on record by the petitioner.”

What’s more, the Bench then notes in para 6 that, “A statement has been filed by the 1st respondent as well, wherein, it is stated that the Labour Department has informed that draft ordinance for amendment of the Factories Act, 1948 enabling women employees to work night shifts was approved by the Council of Ministers on 5.8.2020 and the Labour Department has issued a letter to the Secretary, Ministry of Home, Government of India for approval of the Hon’ble President of India for the said amendment. It is submitted that the amendment has not been brought into effect and that therefore, going by the present situation, the restriction for women to be engaged in factories after 7 p.m. and before 6 a.m. continues in force.”

For esteemed readers exclusive benefit, it must be mentioned here that after hearing the contentions of the parties, the Bench then observes in para 7 that, “I have considered the contentions advanced. The issue is simply whether the provisions contained in Section 66(1)(b) of the Factories Act, 1948 would stand in the way of the 2nd respondent considering the application of the petitioner for appointment as Safety Officer. Section 66 reads as follows :-

“66. Further restrictions on employment of women.- (1) The provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely:-

(a) no exemption from the provisions of section 54 may be granted in respect of any woman;

(b) no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M.:

Provided that the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories, vary the limits laid down in clause (b), but so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M.;

(c) there shall be no change of shifts except after a weekly holiday or any other holiday.

(2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish-curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to, or deterioration in, any raw material.

(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.””

Be it noted, the Bench then states in para 8 that, “A Division Bench of this Court in Hindustan Latex Ltd. v. Maniamma [1994 (2) KLT 111] considered the issue and held that the provisions of Section 66(1)(b) can only be a protection against exploitation of a woman worker by requiring her to work during night hours without her consent. Construing the provisions of Article 15, the Division Bench held that what is meant by special provision for women provided in clause (3) thereof is only a special provision in favour of women.

Please read concluding on thedailyguardian.com

Relying on the decisions of the Apex Court as well as other High Courts, it was held that a provision which has the protection under Article 15(3) cannot be struck down merely because it may amount to discrimination solely on the ground of sex. It was held that only such special provisions in favour of women can be made under Article 15(3), which are reasonable and do not obliterate or render illusory the constitutional guarantee enshrined under Article 16(2). It was further held that in a case where the woman herself seeks a consideration of her appointment which would involve waiving of the special privilege which is being granted to her under Section 66(1)(b), the State cannot rely on the said apparently beneficial provision to deny an appointment which the petitioner would otherwise be eligible for.”

To put things in perspective, the Bench then in para 9 opts to state that, “A learned Single Judge of this Court in Omana Oomen v. F.A.C.T. Ltd. [1990 (1) KLT 614] had considered a challenge against denial of appointment to women employees on the ground that they have to work in night shifts. Considering the factual aspects, where other women had been appointed to the same post earlier and where male employees were working in day shifts, it was held that Section 66(1)(b), which is a protective provision, cannot be relied on to deny appointment to the petitioners only on the ground that they are women. It was held that the company could have moved the Government for a permission as provided in the proviso to Section 66(1)(b), which was not done. It was, therefore, held that since it is possible for the company to accommodate male technicians exclusively in day shifts as asserted by the petitioners, the denial of employment to the petitioners on the ground that they would have to work night shifts was not sustainable.”

Adding more to it, the Bench then further points out in para 10 that, “In Leela v. State of Kerala [2004 (5) SLR 28], a Division Bench of this Court was considering a challenge to Section 66(1)(b) of the Factories Act. The petitioner therein had challenged the promotion given to a junior hand as Supervisor (Binding), on the ground that she could not be required to work between 7 p.m. and 6 a.m. as provided under Section 66(1)(b). The Division Bench considered the issue and held that Section 66(1)(b) is a beneficial provision and does not provide a bar against employment of women. It was held that the provision under challenge is a special provision which enjoys the protection of Article 15(3) and does not embody a principle of discrimination on sex but is calculated to save women from the hazards of working during night in factories. It was held that the proviso to Section 66(1)(b) is only an enabling provision and exemptions granted in certain industries cannot apply across the board. It was further held that the provision was calculated to ensure the women shall be able to take care of their families and that children do not suffer. The decision of the Andhra Pradesh High Court in K.S.Triveni & Ors. v. Union of India & Ors. [2002 Lab.I.C. 1714] and that the Madras High Court in Vasantha R. v. Union of India & Ors. [2001-II-LLJ 843] as well as of this Court in Rajamma v. State of Kerala & Ors. [1983 KLT 457] were considered and it was held that in the case on hand, there was no discrimination based on sex. The contentions were, therefore, rejected and it was held that the provision of Section 66(1)(b) embodies a special provision in favour of women and does not suffer from the vice of discrimination.”

To be sure, the Bench then states in para 11 that, “The Madras High Court in Vasantha R. v. Union of India & Ors. [2001-II-LLJ 843] had considered a similar challenge to Section 66(1)(b). It was held that the provision which denies an opportunity for women to work during night hours where they are desirous of doing so, for betterment of their employment prospects would be violative of the provisions of Articles 14, 15 and 16 of the Constitution and had struck down the said provision as being discriminatory.”

Moving on, the Bench then further adds in para 12 that, “The Andhra Pradesh High Court had also occasion to consider a similar challenge and it was held that the provision could not stand in the way of a woman being employed during night hours unless there is a compulsion on the part of the employer on the woman to carry out her duties in a factory during the night time.”

While continuing further in a similar vein, the Bench then holds in para 13 that, “This Court, in Sanuja v. Kerala State Beverages Corporation Ltd. [2017 (1) KLT 44] had considered a challenge to Rule 7(37) of the Abkari Shops (Disposal in Auction) Rules, 2002 which provided that women cannot be engaged to work in foreign liquor shops. After consideration of the case law on the point as also the changed circumstances, this Court held that the restriction against women being employed in liquor outlets would violate the provisions of Articles 14, 15, 16 and 19 of the Constitution. The provisions were, therefore, held to be discriminatory and violative of the provisions of Articles 14 and 15.”

Most significantly, the Bench then envisages in para 14 that, “Having considered the contentions advanced, I find that the basic contention urged by the respondent is that the provisions of Section 66(1)(b) are beneficial in nature and are intended to protect women from exploitation. In the factual situation involved, we have to consider the fact that Factories Act, 1948 was enacted at a time when requiring a woman to work in an establishment of any nature, more so in a factory, during night time could only be seen as exploitative and violative of her rights. Apparently, the World has moved forward and women who were relegated to the roles of home makers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres. We have reached a stage where the contributions made by women in the spheres of economic development cannot be ignored by any industry. Women are being engaged to work during all hours in several industries including Health Care, Aviation and Information Technology. Women have been engaged in several professions requiring round the clock labour and have proved themselves quite capable of facing the challenges of such engagement. The Apex Court in Secretary, Ministry of Defence v. Babita Puniya and others [(2020) 7 SCC 469] has declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution. It was held that submissions based on stereotypes premised on assumptions about socially ascribed roles result in gender discrimination against women and violate their fundamental rights. In the present scenario, to say that a graduate engineer in safety engineering cannot be considered for appointment as Safety Officer in a public sector undertaking because of an offending provision under Section 66(1)(b) of the Factories Act, according to me, is completely untenable and unacceptable. This is evident from the fact that the State of Kerala has approved an amendment to the Rules which permits the engagement of women on condition that all safety precautions and facilities for such engagement are arranged by the employer.”

Finally and no less significantly, the Bench then holds in para 15 that, “True, a Division Bench of this Court considered the issue and held that Section 66(1)(b) is only a protective provision. If that be so, it can be operated and exercised only as a protection and cannot be an excuse for denying engagement to a woman who does not require such protection any more. The decision in Hindustan Latex Ltd.’s case cited supra and the subsequent laying down of the law by the Apex Court would make it abundantly clear that a woman who is fully qualified cannot be denied of her right to be considered for employment only on the basis of her gender. It is the bounden duty of the respondents who are Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours, safely and conveniently. If that be so, there would be no reason for denying appointment to a qualified hand only on the ground that she is a woman and because the nature of the employment would require her to work during night hours. I am, therefore, of the opinion that the embargo contained in Ext.P7 that ‘only male candidates can apply’ is violative of the provisions of Articles 14, 15 and 16 of the Constitution of India. The said provision in Ext.P7 notification is, therefore, set aside. I reiterate the finding of the Division Bench that the provisions of Section 66(1)(b) are only protective in nature. I make it clear that such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible. There will, accordingly, be a direction to the 2nd respondent to consider the application submitted by the petitioner for appointment to the post of Safety Officer, notwithstanding the provisions of Section 66(1)(b) of the Factories Act, 1948. Appropriate action shall be taken without further delay. This writ petition is ordered accordingly.”

No doubt, it is a judgment which is par excellence and it most rightly endorses the women’s right to equality in employment. Why should a woman suffer for no fault of hers? Of course, the Kerala High Court as we see very rightly maintains that a woman can’t be denied employment saying work involves night hours. The Single Judge Bench of Justice Anu Sivaraman who is herself a woman thus very rightly quashes the discriminatory ‘only men can apply’ condition as it is perverse and violates even Article 14 of Constitution which talks about right to equality apart from Articles 15 and 16. There can be no denying it!

Sanjeev Sirohi, Advocate,

The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation. When a matter — whether on a question of fact or a question of law — has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.” – Justice K.C. Das Gupta.

The rule of conclusiveness of a judgment or the doctrine of res judicata is based on the principle that all litigation must sooner than later come to an end. It is founded on equity, justice, good conscience, and requires that once a party has succeeded on an issue, such a party should not be harassed by multiplicity of proceedings on the same issue. Section 11 of the Code of Civil Procedure, 1908, deals with the doctrine of res judicata and states: –

“11. Res judicata. —No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.—The expression “former suit” shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.

Explanation II. —For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III. —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV. — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanation VI. —Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII. —The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII. —An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”

The doctrine res judicata has originated from the English common law system and has also been termed as Purva Nyaya (former judgment) in the Hindu laws. The Commonwealth nations have acknowledged that once the matter has been decided by the trial court, it should not be attempted again. The doctrine of res judicata is based on three maxims, namely – nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same cause), interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation), and res judicata pro veritate occipitur (a judicial decision must be accepted as correct). The Supreme Court has time and again held that res judicata applies to the public interest litigation filed under Articles 32 and 226 of the Constitution of India. The judgments pronounced by the Courts possess a binding character and the State must preserve the authenticity of such pronouncements. The Supreme Court has also provided some exceptions to the doctrine of res judicata that apply when a judgment is passed by a court lacking jurisdiction, when a matter involves a pure question of law, and, when a judgment has been obtained by committing fraud on the Court. Res judicata is confined to a matter actually in issue but another principle known as the principle of constructive res judicata mentioned in Explanation IV of Section 11 of the Code of Civil Procedure, 1908, is an artificial form of res judicata. It provides that a party to a subsequent suit could invoke this principle on the ground that a matter which might and ought to have been made a ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in such a suit.

In Workmen v. Board of Trustees, Cochin Port Trust, (1978) 3 SCC 119, the Supreme Court observed that though the doctrine of res judicata is codified in Section 11 of the Code of Civil Procedure, 1908, but it is not exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also, principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication, then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided.

In Daryao v. State of U.P., (1962) 1 SCR 574, the Supreme Court observed that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court and that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. The Court also observed that the doctrine of res judicata is not a technical doctrine applicable only to records but it is a fundamental doctrine of all courts that there must be an end of litigation. The doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a Court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause. Res judicata is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation, the other, the hardship on the individual that he should be vexed twice for the same cause.

The Indian Judiciary is already overburdened with frivolous claims and hence, time is ripe to apply this doctrine effectively for saving judicial time. The doctrine of res judicata needs to be used by the Courts frequently for achieving finality in litigation so that the rights of the people are not encompassed by chaos and confusion. This principle has always sought to prevent the abuse of the process of law and promote honesty as well as administration of justice that is fair. If the doctrine is not used constructively, there would be no stop to litigation and the institution of repetitive suits would be very difficult to be prevented. Therefore, it is the need of the hour to make use of this doctrine to promote justice, equity, and good conscience.