WHETER JUDICIARY GETS CARRIED AWAY BY PATRIARCHIAL SENTIMENTS WHILE DECODING SEXUAL CONSENT.

Decoding sexual consents in rape cases involving persons who have been maintaining close relationship with a shared past of physical intimacy can be a tricky affair.  It takes a highly balanced and nuanced approach to resist the temptation to read the past history of intimacy into the offence to infer presumed consent.

A close study of two High Court orders passed over the last week makes one wonder whether patriarchal sentiments and moral prejudices are at play, at least at the judicial sub-conscious mind, in dealing with such instances.

Mohammed Farooqui case.

One is the rape case involving   director and artist Mohammed Farooqui,  who was acquitted of rape charges by the Delhi High Court  early this week. This was the first reported conviction in offence under Section 376 IPC, after the definition of ‘rape’ under Section 375 IPC was expanded by 2013 amendment to include non-penetrative sexual acts.  The accused and the lady in the case were close friends; they used to express physical intimacy by exchanging kisses and hugs. On the day of alleged offence, the accused was intoxicated and seemingly in a gloomy mood. The lady tried to console him, and hugged him. Thereupon, the accused forcefully performed oral sex on her.

The acquittal is on the ground that that the man had no means to know whether the woman was protesting his sexual advances. In other words, the woman did not communicate her protest in an intelligible manner. There was an assumed consent; though the woman was not willing.

But the judgement itself notes that the woman had pushed the man, when he advanced. And when the man had tried to kiss her, she had told in clear terms that she wasn't up for it.  The following factual findings in para 81 & 82 of the judgment are relevant :- There are some exchanges between the parties regarding their being good persons in their individuals rights. The prosecutrix starts feeling motherly towards the appellant. Then the appellant communicates his desire to suck her. The prosecutrix says „No‟ and gives a push but ultimately goes along. In her mind, the prosecutrix remembers a clip from the case of Nirbhaya, a hapless girl who was brutally raped and killed, when the maelfactor had declared that if she (Nirbhaya) did not resist, she might have lived.

Isn’t the initial push of resistance from the woman a sufficient signal of protest? Doesn’t her declaration of ‘No’ to the accused when he tried to kiss unequivocally signify her lack of consent?

However, without dealing with it, the judgment proceeds to further note as follows.

There is no communication regarding this fear in the mind of the prosecutrix to the appellant. The prosecutrix makes a mental move of feigning orgasm so as to end the ordeal. What the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act.

An important point is being missed here- that the woman had conveyed her protest through verbal (‘No’), and non-verbal( push) communication. When accused proceeded and made physical contact with the victim ignoring the protest, there occurred commission of offence at that very moment. Whether the victim made any resistance subsequently and whether she enjoyed the act are of no significance, for the commission of offence was complete the moment when accused made initial physical contact despite the woman’s protest.

The Court trivializes the impact of the said initial protest made by the victim by suggesting that it might have been a feeble ‘no’. The Court did advert to proviso to explanation 2 of Sec.375 IPC which states to the effect that lack of physical resistance from the woman should not be construed as consent. However,the Court carves out a new exception for this principle by stating that a different yardstick of consent is applicable to ‘persons of letters’ who are ‘intellectually/academically proficient’.    The following observations of the Court in that context are telling. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent. (para 78). It is highly doubtful whether this judicially created exception is legally sound. Can the benefit of Explanation 2 to Section 375 be denied to a woman who is a person of letter, having intellectual/academic proficiency who used to have physical contact with the accused before? Also, this was not a case of no resistance by the woman. There was protest; but the Court chose to ignore the protest, by stating that the protest was not sufficient to convey lack of consent. One is left to wonder as to what more a woman is required to do than a ‘push’ and a statement of ‘No’ to signify lack of consent to sexual act.

Also to be read along with this is a problematic observation which occurs in an earlier part of the judgment that ‘instance of women behaviour are not unknown where a feeble ‘No’ may mean a ‘Yes’(para 78). Problematic on two counts:- first, to import unverifiable personal knowledge into adjudication process is not a sound approach. Second, it tends to send a wrong signal to the society. Deep rooted patriarchy has designed many of the male minds in such a manner to harbour a sense of entitlement with respect to sexuality, and this observation could embolden such minds to indulge in predatory and stalking practises upon women. 

It must be said that the Court did strain a lot to make a scrutiny of fact situation, and the judgment does empathise with the victim.  But ultimately, one gets the feeling that the male perspective trumped all other considerations by giving a benefit of doubt to the accused on ground that he misread the situation to presume consent. The other observations in the judgment to the effect that  ‘in normal construct man initiates sexual acts’, ‘he performs the active part whereas a woman is by and large, non-verbal’, ‘a woman’s feeble no may mean a ‘yes’’ etc seem to suggest that situation was approached and studied only through a male perspective, and that strong gender bias was at play in the judgment.

To its credit, the judgment makes a laudable observation that the basis of any sexual relationship is equality and consent. Unfortunately, the observation did not have much impact on arriving at the end result.

The Jindal University students case.

The judgment of the Delhi High Court had a sophisticated tenor in language, and was considerate and solicitous towards the agony of the victim. However, the order of Punjab and Haryana High Court in the rape case involving Jindal Global University students contains not so charitable observations on the victim, bordering on victim-shaming. There, a woman student was gang-raped by three of her friends. She had a past relationship with one of the men involved, and he had obtained her nude pictures in the course of their relationship. After the relationship was broken, the man black-mailed the woman with the nude pictures, and threatened her into submitting to sexual acts with himself and two others. The trial court convicted three of them for offences punishable under Section 376D IPC.

While allowing the applications by the convicts seeking suspension of sentence, the Court made some observations, which were best avoided. It was observed as follows :-  A perusal of the statement of the victim as also her cross-examination reveals a promiscuous relationship and sexual encounters with all the three accused persons over a period of time and at no stage did she ever make any attempt to reveal her mental state to either the authorities in the college or to her parents or her friends. Irrelevant comments were also made in the judgment about her smoking and drinking habits. It was further observed that  the entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.

The Court was persuaded to think that it was an instance of casual sex, as clear from the following reason stated for suspending sentence. The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer a compelling reasons to consider the prayer for suspension of sentence favourably.

To trivialize the incident of a woman forced to indulge in sexual acts against her will due to black-mailing as adventurism and experimentation in sexual encounters is quite unfortunate. While suspension of sentence is a matter of judicial discretion, it would have been judicious on the part of the Court to refrain from making such sweeping remarks and characterizations, at least at the stage of admission of appeal against conviction.

The observations in both the cases makes one wonder whether gender-based beliefs and patriarchal prejudices are at play in forming the bedrock of reason in judicial outcomes in rape cases. In this context, the observations in the Article “Will Women Judges Matter?” authored by Madame Justice Bertha Wilson, Judge, Canadian Supreme Court are worthy of reference :-  The studies show overwhelming evidence that gender-based myths, biases, and stereotypes are deeply embedded in the attitudes of many male judges, as well as in the law itself. Researchers have concluded that gender difference has been a significant factor in judicial decision-making, particularly in the areas of tort law, criminal law, and family law. Further, many have concluded that sexism is the unarticulated underlying premise of many judgments in these areas, and that this is not really surprising having regard to the nature of the society in which the judges themselves have been socialized.

Probably, it is high time to seriously debate and consider the suggestion that rape cases be tried and heard by women judges; as it can bring in more gender sensitivity in the process. 

Published in LiveLaw on 27.09.2017

JUSTICE A.S OKA:- ALWAYS PROTECTING CITIZENS’ RIGHTS AGAINST MAJORITARIAN SENTIMENTS

Justice A S Oka of Bombay High Court had become the centre of news last week. The Maharashtra Govt. had adopted some lowly tactics to prevent a matter concerning noise pollution being considered by the bench headed by Justice AS Oka.  Justice Oka was part of the bench which had held in August 2016 that area within 100 meters radius from hospitals, educational institutions and courts would constitute ‘silent zones’. This had resulted in closure and shifting of several Ganesh mandals during Ganesh Chaturthi festival last year.

As Ganesh Chaturthi festival approached this year, the State Government submitted that the earlier order declaring silent zones was not longer in force, as the Government had amended Noise Pollution(Regulation and Control) Rules 2000 so as to de-notify silent zones. However, the bench comprising Justice Oka was not prepared to accept this argument, and made oral observations to the effect that the earlier order would continue to operate, regardless of the amendment, which seemingly was made to appease to populist sentiments. Sensing the inclination of the bench, the Advocate General submitted that Justice Oka ought to recuse from hearing the matter on ground of “bias” against government. A request for hearing by another bench was made before the Chief Justice as well. Following this, the Chief Justice Dr.Manjula Chellur transferred the matter out of the bench of Justice Oka. This was widely criticised by the legal fraternity, and the Bombay Bar Association and Advocate Association of Western India  passed resolutions condemning the act of transfer.  In the wake of widespread criticism, the Chief Justice recalled the order of transfer, and re-constituted the Full Bench headed by Justice Oka to hear noise pollution matters. 

A glance of some judgments authored by Justice Oka undoubtedly reveals that he is a judge with a liberal outlook, who gives weightage to civil liberties over powers of the State. Justice Oka seems to very well understand that legislative processes are more often guided by political considerations of the day which seek to pamper the majoritarian sentiments( as discernible from the de-notification of silent zones), and therefore the endeavour to uphold rule of law often means turning against the populist current. Some of Justice Oka’s judgments are really noteworthy, and underscore his liberal and humanist credentials.

Atheist teacher cannot be compelled to participate in school prayers

In Sanjay Ananda Salve vs. State of Maharshtra , the a bench headed by Justice Oka quashed the suspension of a school teacher, who refused to fold his hands during school prayer. The teacher proclaimed that he was a non-believer and that he could not be compelled to fold his hands during prayer song. The Court protected his right and said that his action did not amount to misconduct. Justice Oka authored the judgment observing that  the Petitioner has a freedom of conscience and he cannot be compelled change his belief that the prayers are religious in nature and to stand with folded hands when the prayers are being sung. The freedom of conscience guaranteed to the Petitioner protects him. He cannot be forced to stand with folded hands when the prayers are being sung.

Atheism is also protected by Article 25 and Government has to give ‘no-religion’ as an option in application forms

Another noteworthy judgment rendered by Justice Oka is in the case Dr.Ranjeet Suryakant Mohite vs. Union of India(Judgment dated 23.09.2014 in PIL No.139/2010, Bombay High Court). Therein, the petitioner was seeking a direction from the Court to the government to recognize ‘no religion’ as a religion, and to restrain the government from forcing citizens to declare their religion in applications and forms. In what constitutes a beautiful exposition on the contours of Article 25, it was observed by Justice Oka as follows :

There is a complete freedom for every individual to decide whether he wants to adopt or profess any religion or not. He may not believe in any religion. If he is professing a particular religion, he can give up the religion and claim that he does not belong to any religion. There is no law which compels a citizen or any individual to have a religion. The freedom of conscience conferred by the Constitution includes a right not to profess, practice or propagate any religion. The right of freedom of conscience conferred on a citizen includes a right to openly say that he does not believe in any religion and, therefore, he does not want to practice, profess or propagate any religion. If the parents of a citizen practice any particular religion, he has a freedom of conscience to say that he will not practice any religion. There is a freedom to act as per his conscience in such matters.

 Freedom of conscience under Art.25 of the Constitution encompasses in itself a freedom to an individual to take a view that he does not belong to any religion. The freedom conferred by Art.25 of the Constitution also includes a right of an individual to claim that he is an 'Atheist'. As the freedom of conscience confers a fundamental right to entertain a religious belief, it also confers a right on an individual to express an opinion that he does not belong to any religion.

The Court granted the prayer of the petitioner and stated as follows.  No individual can be compelled to state that he belongs to a particular religion, though he does not practice or profess the said religion. He has a fundamental right to state that he does not profess or practice any religion and, therefore, what follows is the second part of the Prayer Clause (A) which will have to be granted. Therefore, the Government Printing Press cannot deny request of a citizen to declare in the gazette that he does not belong to any religion.

Beef Ban: Striking down of Sections 5D of Maharashtra Animal Preservation Act as unconstitutional

Preventing a citizen from possessing flesh of cow, bull or bullock slaughtered outside the State amounts to prohibiting a citizen from possessing and consuming food of his choice. In Section 5D, the focus seems to be generally on consumption of beef s an item of food. Consumption of food which is not injurious to health is a part of an individual’s autonomy or his right to be let alone. Hence, it is an infringement of his right to privacy. Hence, it is an infringement of his right to privacy. In our view, Section 5D violates the right of privacy being an integral part of the personal liberty under Article 21.”...

Thus observed Justice Oka, as the bench headed by him struck down Section 5D of the Maharashtra Animal Preservation Act, which criminalized the possession of meat of bull or bullock slaughtered outside Maharashtra. Significantly, the judgment holds that what one eats or drinks is a part of one’s right to privacy. Even before the Supreme Court recently declared right to privacy as a fundamental right under Article 21, this judgment had recognized right to privacy as an integral part of personal liberty. One cannot withhold a salute to the foresight and prophecy of the learned judge.

Shifting of Republic Day Parade

Acting on a petition filed by one Dadar resident Durgesh Warty, a bench headed by Justice AS Oka directed the State Government to shift the venue of Republic Day parade from Shivaji Park. The Court stated that Shivaji Park was a silent zone, and hence no processions can be allowed there, be it even the Republic Day Parade.

Relief to Fair Price Shop Dealers from submitting Aadhaar data

The Government had issued a direction to fair price shop dealers to collect the Aadhar data of the beneficiaries, failing which their allocation quota will be reduced. The bench headed by Justice Oka granted interim stay of the direction, holding that prima facie, it is not a part of their duty to collect such data, and therefore they cannot be penalized for non-compliance.

Prison Reforms

During March 2017, a bench comprising Justice Oka passed comprehensive directions for ameliorating the condition of prisons in the state. The Court was acting on a petition filed by an NGO ‘Jan Adalat’. The Court also showed its concern for the children of women prisoners, and stated that children of young age should be permitted to stay with their mothers in prison. It was stated as follows:-

An arrangement will have to be made by establishing creche, nursery schools, kindergarten schools and, if necessary, primary schools near the precincts of the Jails so that the children can get proper facilities of education. If such facilities cannot be
 provided, the State Government must ensure that they are admitted to nearby Nurseries/Schools. As the mothers will not be in a position to pay regular fees when the children are required to be admitted in private institutions, the State Government will have to make arrangement for payment of fees.
 

Upright and principled

Justice Oka is held in reverence and high esteem by the members of the bar as a person who is morally upright and principled. In a report to Indian Express,  Advocate Hiten Vanageonkar cited one example from the life of Justice Oka as a lawyer as an example of his honesty and integrity. Reportedly, he had argued and won a case before the then Chief Justice B P Singh. Later he came to  know that the decision on which he had relied to win his argument was later overruled by the Supreme Court. So, Mr.Oka informed the Chief Justice about it.  Immediately, Chief Justice B P Singh recalled his initial decision; but the Chief Justice appreciated the intellectual honesty shown by him. Thus, he is regarded as a person who would not compromise on principles even if it deprives him of professional gains.

The events which transpired at Bombay High Court are quite unsavoury, and reflects the practise of advocacy in a low light. But, it also highlights the fact that honesty and integrity will ultimately triumph over unethical tactics.

One may impugn the judgments of Justice Oka; but not his honour.

Published in LiveLaw on 28.08.2017

TRIPLE TALAQ CASE :- CAN JUSTICE NARIMAN’S VIEW ON ARBITRARINESS BE TREATED AS A BINDING DECLARATION OF THE CONSTITUTION BENCH?

Apart from the implications it holds for Muslim Divorce Laws, the Triple-Talaq judgment of the Supreme Court has piqued the interest of legal fraternity for a different reason as well. Justice Nariman’s view(endorsed by Justice U.U Lalit) that arbitrariness can be a ground for striking down a legislation has sparked a lot of discussions among the legal commentators. Justice Nariman expressed the view by overruling the dictum in State of Andhra Pradesh vs. McDowell & Co. AIR 1996 SC 1627, which had held that a legislation cannot be struck down on the grounds of arbitrariness or unreasonableness(Incidentally, Justice Nariman has now adopted the proposition which was unsuccessfully advanced by him as a lawyer in McDowell case). The declaration in McDowell was as follows :

No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom.

Differing from the principle in McDowells, Justice Nariman observed as follows :

The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three Judges’ Bench decision in McDowell (supra) when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.

Justice Nariman stated that McDowells decision was rendered ignoring several binding precedents which invoked arbitrariness as a ground to strike down legislations, and even constitutional amendment. Umpteen decisions which had struck down legislation on grounds of arbitrariness were also cited. Hence, Justice Nariman proceeds to hold that McDowells decision was not good law. Not stopping there, it is further held that the subsequent judgments which relied on McDowells were also declared to be as bad in law, which includes the decision in Binoy Viswam vs. Union of India (2017) 7 SCC 59, which dealt with legality of AADHAAR-PAN linkage. It is apposite to refer to the relevant observations as follows:

53. However, in State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453 at paragraph 22, in State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 at paragraphs 17 to 19, in Rajbala v. State of Haryana & Ors., (2016) 2 SCC 445 at paragraphs 53 to 65 and Binoy Viswam v. Union of India, (2017) 7 SCC 59 at paragraphs 80 to 82, McDowell (supra) was read as being an absolute bar to the use of “arbitrariness” as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, Mcdowell (supra) itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell (supra) are, therefore, no longer good law.

CAN THE PRONOUNCEMNET OF JUSTICE NARIMAN BE TREATED AS A BINDING RATIO OF THE JUDGMENT.

There are opinions among the legal community which take the pronouncement of Justice Nariman as an authoritative Constitution Bench ruling stating that laws can be struck down for being arbitrary But is it not too farfetched to equate this pronouncement of Justice Nariman as the pronouncement of the Constitution Bench.?

It is important to recall that Justice Nariman was one among the three judges in the majority. Justice Lalit endorsed the views of Justice Nariman, without authoring a separate judgment. So at best, this pronouncement can be regarded as the opinion of two judges, as none of the other judges shared this view; on the contrary, the other judges expressed diametrically opposite views. Justice Nariman’s views on arbitrariness were expressed so as to strike down Section 2 of the Shariat Act 1937 to the extent it enabled practice of talaq-e-biddat. It was in that context that the pronouncement on arbitrariness came.

However, Justice Kurian Joseph adopted an altogether different route to invalidate talaq-e-biddat. Justice Kurian Joseph did not recognize talaq as having any statutory flavour. The judgment of Justice Joseph examined whether ‘triple talaq’ is a practise sanctioned by Shariat. It was stated therein that the practise of triple talaq was not in conformity with Quranic injunctions and Shariat Law, and hence it was invalidated. There was no occasion in Justice Joseph’s opinion to consider the issue of arbitrariness in statute, as the judgment was examining the practice of talaq from the point of view of Islamic theology. The conclusion of Justice Joseph was that what is bad in theology cannot be good in law.

The minority opinions of CJI Khehar and Justice Nazeer proceeded on the tangent that talaq was an essential religious practice protected by Article 25.

There is one commonality in the opinions of Justice Kurian Joseph and CJI Khehar(endorsed by Justice Abdul Nazeer)- they were in agreement that talaq was not at all governed by the Shariat Act 1937,and that it fell outside the statutory realm. To that extent, they dissented from the opinion of Justice Nariman(and Justice Lalit). Justice Joseph was explicit in recording his dissent with Justice Nariman on that point, which is expressed as follows:-

4. After the 1937 Act, in respect of the enumerated subjects under Section 2 regarding “marriage, dissolution of marriage, including talaq”, the law that is applicable to Muslims shall be only their personal law namely Shariat. Nothing more, nothing less. It is not a legislation regulating talaq. In contradistinction, The Dissolution of Muslim Marriages Act, 1939 provides for the grounds for dissolution of marriage. So is the case with the Hindu Marriage.Act, 1955. The 1937 Act simply makes Shariat applicable as the rule of decision in the matters enumerated in section 2. Therefore, while talaq is governed by Shariat, the specific grounds and procedure for talaq have not been codified in the 1937 Act. 5.

5. In that view of the matter, I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14.

Singularly taken, this issue whether ‘talaq’ is governed by Shariat Act is answered in the negative by the majority of CJI Khehar, Justice Joseph and Justice Nazeer. In this stand-alone issue, the views of Justice Nariman and Justice Lalit are in the minority. Consequently, the view that statue can be struck down as arbitrary is also a minority view, as the major premise of the issue, namely, whether talaq is governed by statute, is answered in negative by the majority.  If so, how can the opinion of Justice Nariman be depicted as the opinion of the Constitution Bench?

So, there is no convergence amongst the five judges on this issue of whether arbitrariness can be a ground for striking down a statute.  Rather, there is express divergence.

A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. A case is a precedent and binding for what it explicitly decides and no more.(Oriental Insurance Co.Ltd. vs. Rajkumari AIR 2008 SC 403).

Seen in the light of the above principle, it is doubtful whether this pronouncement expressed in Justice Nariman’s opinion can be regarded as a binding ratio of the Constitutional Bench. In view of the distinct approaches adopted by the judges in majority, it is also difficult to ascertain the ratio of this judgment with precision.

It was propounded by T.R Andhyarjuna, Senior Advocate in his book The Keshavananda Bharathi Case : The Untold Struggle for Supremacy by the Supreme Court and the Parliament that there was no uniform ratio in the Kesavananda Bharathi case. Looks like the triple-talaq judgment is also following the same suit. Be that as it may, it is giving rich issues for the legal brains of this country to debate and ponder upon, which are not particularly restricted to its implications on divorce laws.

Published in Live Law on 24.08.2017

“IDEOLOGY HAS TAKEN THE PLACE OF IDEALISM THESE DAYS”, SAYS GOPAL SUBRAMANIUM

“Ideology has taken the place of idealism these days”- Gopal Subramanium, Senior Advocate and Former Solicitor General of India, opened his lecture on Public Interest Litigation with these words. He was delivering the talk at the High Court of Kerala as a part of the Lecture Series organized by the Court in relation to its Diamond Jubilee Celebrations.  Contextualizing the talk in the backdrop of rising trends of ideological mobilization which tend to stifle dissent and instil fear in the citizen to bow before the State, he set out to analyze the fundamental relationship between the citizen and the State, as it ought to be. Quoting T.H Green, he stated that the ‘will’ and not ‘force’ was the basis of State. Citizen was bigger than any government, and the Sovereign is not a consolidation of power, but the manifestation of free will. The Constitution of India was framed keeping this nature of relationship between the citizen and the State. Trust,faith and expectations of bona fides form the existential fabric of constitutional institutions. Constitutionalism thrives in diversity and freedom of choice.

However, he added that many a times governments have attempted to alter the nature of relationship between the state and citizen.  Three indices which point out the advent of tyranny were identified by him, namely :- the fragmentation of judiciary, the mockery of rule of law, and prevention of access to justice. The weakening of rule of law would result in creation of a  climate of hatred. It was in this backdrop that he highlighted the importance of Public Interest Litigation, which is an important tool to bring to the fore burning issues which are otherwise submerged into oblivion by the issues of the mainstream.

 To illustrate the extent and magnitude of tyranny, the horrors of emergency were recounted.  He said that fear can oppress and beat down the best. The example of the then Attorney General Niren De was cited. Niren De’s wife was a Swedish national, and there were threats that his wife would be deported out of country during emergency. He was pressurized, and was even stalked, and ultimately had to cave in.

He stated that lawyers should be always on the vigil against such excesses of power, and should utilize the tool of public interest litigation to espouse causes strengthening rule of law and accountability in society. Public Interest Litigations bridge the disconnect between law and justice. He also analysed the concepts of judicial restraint and judicial activism. According to him the ‘doctrine of separation of powers’ is a comfortable arm chair view, which is often invoked out of complacency to evade action. He emphatically stated that he subscribes to the position that Courts are mandated by the Constitution to protect Fundamental Rights, and have to be active and dynamic about it.  The instances of effective judicial intervention using the tool of PIL were also illustrated.

He urged the lawyers to engage meaningfully in issues using the knowledge of law. Litigation should not be a soulless affair involving mere observance of routine of filing of petitions and rejoinders, but should be a mindful endeavour of truth-searching. It was reminded that law was the only discipline which can change the lives of people. With a sort of poetic zeal, he described law as cosmic and infinite.  He cautioned lawyers against complacency and self-absorption, and exhorted that every instance where injustice manifests itself should be addressed with raw energy and passion to uphold the spirit of law.  Lawyers were urged to espouse causes with passion and zeal so as to stir judges into action.

Mr. Subramanium did not shy away from lavishing praise on Kerala for its achievements in social progress and development. He said that pluralism and harmonious co-existence of diverse cultures was a hallmark of Kerala even before the commencement of Constitution. He stated that Kerala was one of the first regions in the country where an active civil society movement was evolved even before during pre-independence times, resulting in historic events like Temple Entry Proclamation.

Without restricting himself to the theoretical and practical aspects of PIL, Mr. Gopal Subramanium ventured into discussing esoteric abstractions touching upon State, Governance, Individual Freedom, Justice etc, invoking a feeling of philosophical transcendence amongst the audience largely comprising High Court Judges, lawyers and law students. 

Published in Live Law on 22.08.2017

WHEN DOES THE SALE OF A MOTOR VEHICLE TAKE PLACE?AT THE TIME OF DELIVERY OR AT THE TIME OF REGISTRATION.

This might sound like a very trivial question. However, much turns on the answer to this seemingly innocuous question, as its potential answer can create or extinguish liabilities.

Before delving into the topic, it is apposite to note some provisions of law.

A motor vehicle is after all a movable good, a chattel, and hence its sale, transfer etc., would be governed by the provisions of the Sale of Goods Act 1930. Section 19 and 20 of the Sale of Goods Act states how transfer of property in goods takes place.

19. Property passes when intended to pass.—

(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(2)For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.

(3)Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.

S.20 - Specific goods in a deliverable state.--  Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed.

So, as per the scheme of the Sale of Goods Act, the property in goods passes to the buyer when the contract is made, in case of specific goods in a deliverable state. Therefore, the transfer of title of a motor vehicle takes place immediately when the contract is made, provided we treat motor vehicle as a ‘specific good in a deliverable state’(whether a motor vehicle is an ascertainable and deliverable good before registration is another moot point, which will be discussed in the later part of this article).

But, when it comes to Motor Vehicles Act, things are slightly different from the general principles of civil law. Section 2(30) of the Motor Vehicles Act defines ‘owner’ as  “a person in whose name the vehicle stands registered.  The definition of owner is different from the general notion of ownership in civil law, where the person who has title is treated as the owner. In Motor Vehicles Act, the person in whose name the vehicle stands registered in the records is deemed as the owner, whether or not he retains title and possession over the vehicle.  Likewise, Section 50 of the Motor Vehicles Act provides for the process for transfer of ownership of vehicle, which involves intimating the jurisdictional RTOs of the transferor and transferee in the statutorily prescribed forms of Form 19 and Form20. Therefore, transfer of ownership as per Motor Vehicles Act gets completed only after following the procedure prescribed under Section 50.

So, the answer the question as to when does the sale of motor vehicle take place is primarily based on how closely interlinked is ownership and registration of the motor vehicle.

VIEW THAT SALE OF MOTOR VEHICLE IS SOLELY GOVERNED BY SALE OF GOODS ACT.

The specific issue as to when the sale of motor vehicle took place fell for consideration in Vasantha Vishwanathan vs. Elayalawar AIR 2001 SC 3367.  It was a civil suit wherein the plaintiff filed suit inter-alia for declaring his title over 5 stage carriages, which were being plied by the 1^st defendant. The plaintiff’s contention was that although the transfer of ownership was effected in the RTO records, there was no intention as such to transfer the vehicles to the 1^st defendant. The on-paper transfer of registration was done to get over the ceiling limit imposed by a Tamil Nadu Legislation, which was later struck down as unconstitutional. The 1^st defendant resisted the suit stating that on transfer of registration, property in goods passed on to the buyer. The Court did not accept the contention of the 1^st defendant, and held that the plaintiff remained the owner of vehicles, notwithstanding the transfer of registration. It was held as follows :-

S.31 of the Motor Vehicles Act, 1939 lays down that where the ownership of any motor vehicles registered under Motor Vehicles Act is transferred, the transferor and transferee both are required to report the fact of transfer to the registering authority so that particulars of transfer of ownership may be entered in the certificate of registration. The transfer is not effected under S.31 of the Motor Vehicles Act, 1939, but the same simply prescribes procedure for entering the factum of transfer in the registration certificate, which is an act posterior to the transfer. The transfer of vehicles in question would be governed by the provisions of S.19 of the Sale of Goods Act according to which property in the vehicle would pass to defendant No. 1 at such time as the parties to the contract intend it to be transferred.

So, the Court held that mere transfer of registration will not result in transfer of ownership, and that the transfer of ownership of a motor vehicle will take place only in accordance with the Sale of Goods Act.

This view was followed in a recent decision of the Kerala High Court in Commissioner of Central Excise vs. M/s Sai Service Station. Therein, the issue was whether used car dealers were liable to pay service tax. The modus of their operation was as follows- the dealer would purchase a used car from the owner. The dealer will refurbish the car and resell it to another buyer. The transfer of registration takes place only when the dealer re-sells the car to subsequent buyer. In other words, there is no transfer of registration in favour of the dealer when the original owner delivers the used car to dealer.

The Department sought to characterise the transaction as a ‘service’, and sought levy of service tax. The dealer contended that a complete sale took place when the used-car owner delivered the vehicle to it. The Department countered the contention by stating that no such sale took place, since there was no transfer of registration in favour of dealer.

Following Vasantha Vishwanathan vs. Elayalawar, the Court held that transfer of registration was not a pre-condition for completion of sale of vehicle. A vehicle is a movable good, and its sale is governed solely by the provisions of the Sale of Goods Act.  As per provisions of Sale of Goods Act, the transfer of property in goods in deliverable state takes place when the contract is made.  So a sale of goods takes place when the dealer takes possession of the used car from the owner, and its tile is transferred to the dealer. Registration of vehicle is an event which happens subsequent to sale.

According to Court, registration is a statutory requirement for using the vehicle in a public place, as per Section 39 of the MV Act. A hypothetical situation of a person purchasing a car only to keep it in his garage was also cited to lend more credence to the reasoning. In such a situation, he need not register the vehicle. But it would be fallacious to state that he had not gained ownership of the vehicle, merely on account of non-registration.

VIEW THAT REGISTRATION IS THE ONLY DETERMINATIVE FACTOR FOR OWNERSHIP

It was stated above that Motor Vehicles Act treats the person in whose name vehicle is registered as the owner, irrespective of the fact that he has transferred the ownership.

Such provisions, though seeming to be in derogation of the principles of civil law and tort law, are incorporated in view of the beneficial intent of the Act so as to avoid long drawn controversies regarding ownership of vehicle in claim petitions filed by victims. In this context, Section 157 of the Act is also relevant, whereby transfer of certificate of insurance issued in favor of original owner is deemed to have been transferred in favour of the transferee with effect from the date of transfer. In Pushpa @ Leela v. Shakuntala AIR 2011 SC 682: (2011) 2 SCC 240, the Apex Court was considering the liability of the original owner, transferee and the insurer of the original owner in answering the claim. ‘A’ sold his truck to ‘B’, which was insured at the relevant time with insurer ‘C’. The transfer was not recorded in the books of RTO and ‘A’ continued to be the registered owner on record. Although the insurance for vehicle was in effect from insurer ‘C’, that got expired, and ‘B’ got the vehicle insured from another  insurer ‘D’, in the name of ‘A’. While so, accident occurred giving rise to claim petitions. The Tribunal held that only ‘B’ was liable to satisfy the claim, as ‘A’ had ceased to be owner. Insurer ‘D’ was also absolved holding that the insurance was in favour of ‘A’, and as there was no privity of contract between ‘B’ and ‘D’, ‘D’ was not liable to indemnify ‘B’. This view was approved by the High Court. Thus, the claimants were put to hardship as the satisfaction of claim by ‘B’ is not easily forthcoming as it would be from insurer, and they approached the Supreme Court. Relying on Sec.2(30) & 50, the Court held that ‘A’ was also liable to answer the claim, since ‘A’ continued to be registered owner. It was also held that since there was valid insurance policy issued by ‘D’ in favour of ‘A’, ‘D’ was liable to indemnify ‘A’ by satisfying the claim.

On close scrutiny, it can be seen that this decision also treats sale and registration as two distinct events. However, the registered owner is treated as the ‘owner’ for the purpose of fixing liability in motor vehicle accident, on account of deeming provision in Sec.2(30). Theoretically, such registered owner can proceed against the transferee owner for seeking contribution of the compensation which he had to pay to the claimants.

VIEW THAT SALE GETS COMPLETE ONLY ON REGISTRATION OF VEHICLE

In Commissioner of Commercial Taxes, Trivandrum vs. KTC Automobiles (2016) 4 SCC 82, the Apex Court echoed the thought that sale of a motor vehicle gets completed only on registration of vehicle.

Therein, a car dealer had branch offices in Calicut(Kerala) and Mahe(Union Territory of Pondicherry).  The Sales Tax Department of Kerala sought to impose sales tax on some transactions on the ground that such sales actually took place at Calicut, though the vehicles were subsequently registered at Mahe. The Department alleged that the vehicles though sold at Calicut were got registered at Mahe to avail the lesser rates of taxes prevalent in UT of Pondicherry. The dealer sought to justify its stand by stating that the sale gets complete only on registration, which happened at Mahe, and hence there was no incidence of sale in Kerala in order to attract levy under Kerala General Sales Tax Act.

The Court accepted the contention of the dealer. It was held that until and unless the vehicle was registered after noting its engine number and chassis number, it remained an unascertainable good.  According to the definition of ‘sale’ as per Kerala General Sales Tax Act,  sale is deemed to take place in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer. It was observed that a motor vehicle remained in the category of unascertained goods till its appropriation to the contract of sale by the seller is occasioned by handing over the possession at or near the office of registering authority in a deliverable state. The Court also referred to Rule 42 of the Central Motor Vehicle Rules which prohibited a dealer from delivering a vehicle to a purchaser without registration, whether temporary or permanent.  By referring to Sections 18 and 21 of the Sale of Goods Act, it was held that sale of unascertained and non-deliverable goods takes place only when the goods are ascertained and are placed in a deliverable state. On the premise that a motor vehicle becomes and ascertainable and deliverable good only on registration, it was held that sale got complete only on registration, which took place at Mahe.

This decision seems to be in variance with the earlier decisions cited as Vasantha Viswanathan and M/s Sai Traders, which held that registration was a mere post-sale event.  This decision however does not disturb that principle. It is stated in this decision as follows :- Technically though the registration of a motor vehicle is a post-sale event, the event of sale is closely linked in time with the event of registration. In practical terms though sale precedes the event of registration, in normal circumstances and as the law stands now, it is co-terminus with the registration of a new vehicle. Practically, no one buys a vehicle to keep it idle in his private space; and for use in public place, registration is mandatory. This aspect weighed with the Court more.  Although the conclusions in Vasantha Viswanathan and Sai Traders might hold good theoretically, they do not seem to be in accordance with the ordinary course of business and conduct. Perhaps, there is no conflict as such between these cases, and the equities and circumstances of each case might have occasioned the respective final results.

Be that as it may, it is hoped that the above discussion has emphasised the fact that an issue which seems trivial and innocuous in common parlance can assume complex hues in law.

Published in Live Law on 09.08.2017