Professional Documents
Culture Documents
R. K. Misra*
THE ROLE OF judicial process in ordering the society has so far attract-
ed scant appreciation and a good deal of criticism in India, The
judiciary has often been charged of having impeded speedy and smooth
implementation of high-priority programmes for social and economic
development. The criticism may at times be justified but it only brings
into sharp focus the need for a revaluation of the erstwhile tools and
techniques of judicial process. Greater attention to the study of judi-
cial process would be a prerequisite for this intellectual endeavour.
An attempt has been made here to examine in terms of their ^social
consequences a representative selection of cases decided during the year
with a view to highlighting various facets of judicial process in the
country.
Muslim law, the gifts for the benefit of the wakifdmd his family are re-
garded as charity. The claim of the appellant was also supported by
certain precedents to the effect that the term general public utility in-
cludes Muslim wahfs* and that "the standards of customary law and
common opinion amongst the community to which the parties interes-
ted belong" 3 are to be applied in determining the charitable nature
of an endowment. Poised against the authority of religious prescrip-
tions and customary rules was the West Bengal Estates Acquisition Act
which aimed at the abolition of intermediaries between the State and
the raiyat—a crucial part indeed of the land reforms programme. The
Act exempted from its operation the land held exclusively for religious
or charitable purposes. The definition of charitable purpose in the
Act was, however, not exhaustive and therefore the argument that its
meaning should be determined by the notions of personal law could
not be lightly brushed aside. But Hidayatullah, J., preferred to apply
secular standards and held that a "gift to one's own self or kith and kin
may be meritorious and pious but it is not charity in the legal sense of
the term . . . ."* In the absence even of a working agreementon the
goals, the judicial choice between traditional and modern or between
religious and secular becomes extremely difficult — more so when
it involves the sensitive area of the customs and religion of a mino-
rity community. The urge towards modernisation, the imperative
need for economic progress and the constitutional directive regarding
homogeneity in the legal system are some of the factors which could not
but have influenced the Court in arriving at the decision which will
definitely help in formulating a coherent set of jural postulates and
thereby in course of time a theory of justice for our society.
The sociological implications of this judgment are too far-reaching
to be summarised here. A reference may, however, be made to the
deft structuring of arguments through which the Court while rationa-
lising and synthesising the existing law on the subject made a definite
progress towards new views. As already pointed out, there were prece-
dents supporting the contention that charitable purpose is to be deter-
mined according to the notions of Muhammadan law. There were
no doubt a number of decisions of the Privy Council declaring invalid
such wakfs in which the benefits to charity or religion were either illu-
sory or postponed indefinitely till the exhaustion of the family lineage
of the wakif But as a result of the pressure of Muslim public opinion,
these decisions were abrogated by the Mussalman Wakf Validating
Act, 1913, Though the primary purpose of the Act was to take the
Muslim wakfs out of the reach of the rule against perpetuity, it could
as well be interpreted to hold that the Act also applied Muhammadan
law for the determination of the meaning of the term charitable pur-
pose. The Act, amongst other things, defined a wakf as a permanent
dedication of property for "any purpose recognized by the Mussalman law
as religious, pious or charitable," According to Hidayatullah, J,,
however, the validating Act enlarged the meaning of wakf only so as to
include the wakfs otherwise hit by the rule against perpetuity but not so
as to bring the wakfs within the scope of charitable purposes. He re-
lied on a few High Court decisions to hold that for a purpose to be
deemed charitable, there must be some element of benefit to the public.
An analysis of the law on the point would demonstrate that the existing
legal material and logic could as well be used to arrive at a different
decision in making a choice between the two interpretations. It is
precisely in such cases that the policy considerations tilt the balance in
favour of the interpretation which the judge thinks would promote the
preferred values.
The problem involving tradition versus modernity and secular
versus political institutions was also raised before the Calcutta High
Court in LT. Commr. v. JogendranathP On the substantial point in-
volved, the judgment was on the same lines as in the Fazlul Rabbi case
but on account of the reasoning adopted by the Court, it fails to make
as deep a social impact. Besides, it is doubtful if this decision adds
to the image of judicial process as an effective and powerful means
of directing social change on the desired lines. The question referred
to the High Court in this case related to taxability of the income from
debutter property in the hands of shebaits. This raised several issues
for judicial determination. Firstly, whether a Hindu deity is an "indi-
vidual" or a "person." The income in question could be taxed only
in case the answer was in the affirmative. Secondly, whether all abso-
lute and complete dedications to a deity are to be regarded as for "public
religious purpose" and thus exempt from income tax. The conten-
tion of the assessee was that there could be no "private religious purpose"
under the Hindu law. Lastly, whether a shebait could be regarded
as a trustee for the purpose of taxation under the Income Tax Act. In
the judgment, the erudite exposition of the Hindu concept of God,
deity and endowment goes to such an elaborate length that the problems
of vital importance to law and society involved in the case seem to have
been relegated to background. Besides, the judgment at places is
characterised by notes of despair that the Court did not find it possible
to go back to original Vedic law on the subject and that they had to
decide it the way they did with great reluctance and deep regret. This
approach would have been justifiable had the judgment given some
valid reason for the revival of the original Hindu law on the point and
for the inadequacy of the law they found themselves bound to apply.
In the absence of such an exposition, an impression is likely to be crea-
ted that the only reason for lament was the not unusual fascination
for the ancient system. And this does not help in the projection of
the right type of image of the judicial process.
Coming to the specific points raised in the case, while Mukharji,
J., reluctantly conceded that a Hindu deity was, at least for the pur-
poses of Income Tax Act, an individual or a person, Laik, J., was not
prepared to compromise the sanctity of the Hindu deity by declaring
it to be an individual or a person for the purposes of Income Tax Act.
On the second issue, the argument for the Income Tax department
was that the exemption granted by the Income Tax Act to properties
held for charitable purposes was not available in this case as it did not
extend to the income from properties held for"private religious purposes
which does not enure for the benefit of the public." Mukharji, J.,
after regretting that " a valuable original contribution of Hindu juris-
prudence has been lost almost unobtrusively by misapplication of
foreign jurisprudence, " 6 found himself bound to hold that a complete
dedication in favour of a deity does not necessarily amount to a "public
religious purpose." Laik, J., differed on this point as well and did
not agree with the distinction drawn between public and private reli-
gious purposes in case of dedication to deity. On the last point, how-
ever, both the Judges agreed that though a shebait was not a trustee
in the English sense, the duties and obligations of the two were similar
and the income from the property in the hands of the shebait could be
taxed under the Income Tax Act, Here too Laik, J., added that "to
conclude this much is not necessarily to concede that the Hindu deity
as such is liable to income-tax." 7 The decision is unimpeachable in-
sofar as it recognises the power of the state to tax the income from
debuttet property held under a devise in which no element of charity
or public benefit is involved. But the judgment missed the opportunity
provided by the case to contribute towards the evolution of jural
postulates of the emerging society. It presented to the Court an
ideal opportunity to determine the limits within which religious
institutions can claim exemption from the taxing power of the state.
Needless to add that this limit cannot be defined today on the basis of
the ancient notions of Hindu system which did not recognise any distinc-
tion between private and public religious endowments and under
which every religious purpose was deemed to be a charitable purpose.
A modern state with a wide range of functions to perform cannot be
expected to give up its power of taxation unless some countervailing
social interest is promoted in granting an exemption. The exemption
from taxation of property catering to the spiritual, humanitarian or
other needs of the general publio can be justified on this ground. But
no such social interest is discernible in case of a property catering to the
6. Id. at 585.
7. Mat597.
11. M a t 887.
12. Id. at 891.
13. Id. at 889.
14. Id. at 888.
In our opinion, the test to adopt in our country (regard being had to our
community 'mores') is that obscenity without a preponderating social pur-
pose or profit cannot have the constitutional protection of free speech
and expression and obscenity is treating with sex in a manner appealing to
the carnal side of human nature, or having that tendency.21
We do not say that the English authorities should be taken as the guide
as was suggested in some of the cases at one time.
50. In re, under Art. 143 Constitution of India, A.I.R. 1965 S.C. 745.
51. A.I.R. 1965 S.C. 845
52. See Shukla, "Constitutional Law," infra at p. 18-20. See also Tripathi,
"Constitutional Interpretation," 8 J.I.L.L 479, at 532 et. seq. (1966) for a critical
analysis of the majority opinion.
53. Sarkar, J., in his dissenting opinion expressed doubts about the competence
of the reference and the desirability of entertaining it. Supra note 50, at 810.
Great cases like hard cases make bad laws. For great cases are called
great, not by reason of their real importance in shaping the law for the
future, but because of some accident of immediate over-whelming in-
terest which appeals to the feeling and distorts the judgment. These
immediate interests exercise a kind of hydraulic pressure which makes
54. Keshav Singh v. Speaker, Legislative Assembly, A.I.R. 1965 All. 349.
55. Supra note 50, at 763.
56. Id. at 810.
57. Ibid.
what previously was clear seem doubtful, and before which even well settled
principles of law will bend.68
58. Northern Securities Co. v. United States, 193 U.S. 197, 400-01 (1903).
59. Supra note 51. See Shukla, "Constitutional Law," infra at p.35 for the facts
and the judgment.
60. A.I.R. 1951 S.C. 458.
61. Supra note 51, at 853.
62. Supra note 60, at 464.
63. Supra note 51, at 851.
75, Id at 866.
process can apply the brakes but can never be a substitute for the poli-
tical processes.
There is no known instance of the courts in any country claiming
the power to determine, specially in the absence of a specific constitu-
tional provision to that effect, as to what parts are immutable and which
ones are within the area of amending power. This must compel us to
pause and consider whether the time is ripe in India for the judicial
process to perform this role particularly when the forces that provide
vigour and virility to judicial process in the West have not come up as
yet in India. The main source of strength of judicial process in the
Western countries is the right-consciousness in the people as a result
of which the claims and demands are pressed for satisfaction on the
legal system, to be adjudicated upon ultimately by the courts. In
India, however, the demands are either not articulate enough or are
pressed against the traditional organisations. The legislative process
is eminently suited to and is actually making vigorous efforts to create
and articulate the demands. 76 Until a structure of demands is created,
judicial process can perform a limited role in the society. Besides,
the fundamental rights guaranteed in the Constitution can have a
meaning only after certain social and economic conditions have
emerged. The entire scheme of the Constitution is oriented towards
strengthening the efforts of the legislative process to create these con-
ditions. Too rigid an interpretation of fundamental rights at this
stage will neither promote social justice nor protect individual liberty.
It will, moreover, stifle the normal gowth of constitutional morality
and political processes in the society.
In these politically or emotionally surcharged areas involving
fundamentals regarding the nature of our polity, the judiciary has to
act with due caution, deliberation and rectitude. The social accept-
ance of judicial process as an objective and rational agency oi
social ordering depends on the intrinsic merit of the judicial prono-
uncements and their social consequences. As such, judicial process
occupies an extremely vulnerable position insofar as one false step on
its part may do irreparable damage to it. Legislative process, on the
other hand, dervies its strength from periodical mandate from the people
and therefore can afford to take risks. Any damage done to it is likely
to be made good in course of time by the operation of political processes
and also by its being subject to judicial review and in some cases by
both.
A. Criminal Law
(2) Punishment
In the sphere of punishment, the trend is towards greater indivi-
dualisation of justice or what Stone describes as "multiplication of
legal categories." 82 The observations of Naik, J., in State of M.P.
B. Contract
The business of life insurance has been nationalised and in the matter of its
business activities, the Corporation has a great responsibility to the public.
Whenever the claims are repudiated and disputes come to court of law,
the Life Insurance Corporation should not put up fight on the pattern
of ordinary litigants. But it must be on a higher plane so as to inspire
confidence in the public 96
C. Industrial Relations
if the transaction would have been deemed a sale, had the case involved
the rights and obligations of the parties to a contract rather than the
right of the state to levy tax.
E. Property Relations
Most of the difficulties in this area stem from the ideological ambi-
valence in the Constitution which provides little guidance as regards
the concept of property it wanted to protect. The Constitution, it is
well known, is a result of compromises between various forces, interests
and opinions119 and article 31 is an unfortunate outcome of this process.
It is difficult to believe that article 31, as it stood in 1950, was en-
acted by the same body which laid down the Directive Principles of
State Policy. But there were forces which wanted no interference
with the erstwhile arrangements regarding private property. 120 Of
course, the urge for land reforms could not be overlooked and the exemp-
tion in clause (4) to the laws passed during the specified period was
meant to protect the pending or contemplated land legislation. Even
the constitutional amendments did not aim at revising the basic
principle embodied in article 31(2) but only carved out areas and pro-
vided for their exemption from the main clause. This reluctance to
touch the basic framework of article 31 intended to protect status quo
has contributed to the climate in which it was found possible by the
courts 1o build up further on the principles embodied therein and to cut
down the application of the exemption clauses to a narrow area.
Despite the lack of ideological clarity in the Constitution, it may
still have been possible for the courts to evolve out of the constitutional
provisions a concept of property relations more in keeping with the
objectives of our social growth. But there is an inbuilt pro-property
bias in our judicial system introduced initially by Lord Cornwallis under
the inspiration of the Whig philosophy of government. The best safe-
guard against the administrative maladies and misuse of power,
tion, the courts have not adopted a similar approach. The judicial
notion regarding property in the urban sector seems to be still based on
the claims of the individual without regard to its social utility.
The comments made on judicial decisions relating to property
rights need not lead us to the conclusion that a reconstruction of the
property relations is not possible within the framework of the present
Constitution. No doubt, there are certain inbuilt problems. The task
has been made more difficult by "willing to hurt but afraid to strike"
attitude adopted in the original article 31 as also in the amendments.
It would therefore be unfair to pass the entire blame to the judiciary
which has been playing safe and adopted the techniques of logic and
legalism in order not to undertake the responsibility of disturbing the
status quo in the property relations. But it is the judicial process alone
which can evolve a solution out of this stalemate. The need of a theory
of social justice which will provide a workable standard to the courts
to review the laws aimed at the readjustment of property relations
cannot be over-emphasised. The policy of the Supreme Court so far
has been to evolve this standard from within the fundamental rights. If
the role of law is not to protect the status quo but to accelerate social
change, no rigid judicial formula can do justice in the present social
situation. The factors like objectives of social growth, the purpose
for which the property is being acquired and the position of the person
being deprived are to be taken into account in order to evolve the theory
which may be fair not only to the person deprived of property but also
to the society as a whole. By doing so the judiciary will have
indicated an orderly and democratic path for the process of social
reconstruction under way in India.
The role of judicial process in regulating property relations is a
part ofthe wider process of action and reaction between social change
and legal development. .The rapidity of this change in India and
the enormity of the problems sought to be tackled by law pose a
challenge for the judicial process. If the judiciary has at times not
proved equal to the task, it is a measure ofthe failure ofthe legal pro-
fession and more so of the jurists to offer meaningful alternatives out
of which functional choices could be made.